case LETHEULLIER against Tracey that April upon a conveyance direct by will Q  whether the word in default of such issue shall give the first taker a estate  tail the devise be to the first son in tail male and to the other son in tail  general and hold they shall not ante this cause come on again upon the  question which take its rise from the opinion of the court on the last  videlicet ambler whether the word immediate precede the limitation to  Letheullier shall be construe to give a estate tail to the defendant mrs  Tracey in order to let in the daughter of her first son who otherwise will be  exclude or whether any particular limitation shall be insert for that purpose  Murray attorneygeneral Mr York and Atkins argue that it be a mere legal  question for the land direct by the will to be purchase be by word of  reference to be settle in the same manner as the land devise that the intent  of testator clear be that none of the subsequent limitation shall take place  till there shall be a total failure of issue of his daughter that as the great  grandchild be not in be he can not mean a partiality to one preferable to  another the only way of let in the daughter of the first son must be by give a  estate tail to defendant and though defendant will have it in the owner to bar  the remainder yet that be not to be regard be only a incidental right or  consequence of such a estate the court can insert a new limitation there be no  word to warrant it the word precede the limitation to sir Henry Nelthorpe be  general and though the court ambler er p think that the word live at her death  be to have effect only in the case of sir Henry Nelthorpe survive defendant  and be a minor yet he be to take after failure of issue general and the  subsequent limitation to the Letheulliers must depend on the same contingency  Mod plunket v Holmes side Bifields case as cite in king v mell wile v Lewis  easter atk Henshaw v Louther and Langley v Baldwin Eq can Abr p W Ves be cite  Mr Noel Wilbraham and I on the other side argue that testator intend a  partiality to male sex and that the mistake be not in give a estate in tail  male to defendant old son but in not insert the word male in the limitation to  the other son that the limitation to sir Henry Nelthorpe and Letheulliers son  be in tail male and that part of the will explain the former as die Turk v  Frencham ambler that if he do intend the great granddaughter shall take yet he  can not mean to give defendant a estate tail she will then have it in her  power to bar the remainder and defeat those very child of all benefit and  court of equity will regard such consequence as in Popham v Bamfield and  blackbourn v hewer both report in wms in the latter of which the argument use  on the other side be urge but do not prevail in these case there be general  word as failure of issue male and because the estate be before limit to all  the son of the first taker the court consider those general word to mean in  failure of such issue to who the estate be before limit in the attorneygeneral  v Sutton and Langley v Baldwin the limitation go only to a limit number of the  issue and the testator intend to provide for all and therefore the general  word be construe to give a estate tail to first taker in order to let in the  rest of the issue that if the daughter of the first son ought to be let in the  court will do it by express limitation to they otherwise the great  granddaughter of the testator will be prefer and take before his granddaughter  which can not be intend and the court will rather do it because the settlement  be to be by deed Lord Hardwicke chancellor take time to consider of his  opinion and on Monday that April deliver it Lord Hardwicke two question have  be make saint whether the word in case of the testator daughter die without  issue live at her death will turn all the subsequent limitation into  contingency d if not whether these word will not give a remainder in tail to  defendant mrs Tracey by implication they depend on the intention of the  testator and the power of the court to carry it into execution ambler as to  saint I have give my opinion they do not turn the subsequent limitation into  contingency as to d I shall not make any distinction between the land devise  and those to be purchase but shall take it the trust be to follow and be  settle in the same manner as the legal estate in the next place I have no  doubt but that the testator intend to make as strict a settlement as possible  and this presumption be strengthen by his leave a blank at the end of his will  without dispose of the reversion saint I be before and still be of opinion  that the word be to be construe if my daughter shall die without issue during  the minority of sir Henry Nelthorpe such will be the construction of a court  of law on a special verdict if so then those word will not operate upon the  subsequent devise d question whether they import a implication that all the  issue of his daughter shall take before the remainder over to sir Henry  Nelthorpe and if they do whether they do not create a estate tail in defendant  mrs Tracey there be undoubted many case where estate tail arise by implication  as in case of a devise to one without any limitation as for life and if he die  without issue king v mell it be a great misfortune there be no report of that  case by Lord hale himself or of his own argument for though the case there  cite be often mention by judge yet there be no certainty of the correctness of  the report so where particular limitation in general word also where  limitation to a particular number of son as Langley v Baldwin but ambler er p  none of these case cite come up to the present for the ground of they be that  if those general word of contingency be turn into a limitation they will give  a estate tail turn the word in the present case into a limitation it will be  foe such issue as ambler shall survive defendant during the minority of sir  Henry Nelthorpe and will not give a estate tail to defendant but the issue  will take by purchase objection one species of issue will not be provide for  videlicet daughter of defendant old son answer it be admit there be a mistake  somewhere and that it be rather in let in the daughter of defendant young son  than in leave out those of the old son what be require of I be to act contrary  to the intention of the testator and by give a estate tail to defendant to  defeat the whole settlement this be very much like the case of blackbourn v  hewer p wms and if the mistake be as before mention it be not in the intention  of the testator to provide for the old son daughter argue the power of suffer  a recovery be a incidental right and the court will not regard it but only the  line of succession but though that be true in general as say in shaw v W Oh Eq  can Abr yet the court will regard it as in Popham v Bamfield p salk vern where  the case be not extreme strong to give a estate tail by implication therefore  of opinion the defendant can have a estate tail by implication and if so there  be no occasion to give my think any further but allow the exception