case idle versus cook refer to Morgan v Morgan l r Eq Olivant v wright Ch d  salk ld ray Danv Abr surrender of a copyhold to the use of baron and feme for  their life et heir et allocator of the say baron and feme and for default of  such issue to the right heir of the surrender this be a estate in fee and not  a entail in the baron and feme otherwise have it be the case of a will vide  Morgan v Griffith Cowp den v Shenton Cowp in ejectment on a long special  verdict the case be but this Zachariah cliff be seize in fee of the land in  question be copyhold land and surrender the same ad opus et use predict  Zachariah for his life and after his decease to the use of Valentine cliff his  old son and Alice his wife pro et durante boundary life a people of India et  hredum et allocator predictorum valentini et Alici et pro diminution ankle  exitus to the use of theright heir of Zachariah for ever not long after  Zachariah be admit and die and the question be whether this estate limit to  Valentine and Alice his wife be a estatetail only or a feessimple if a  feesimple then judgement be to be give for the defendant accord judgement be  give for the defendant by three judge against gold I the case have be thrice  argue and the court for some time divide peer William gold I I be of opinion  that the estate limit to Valentine and Alice be a feetail the resolution in  the case of Abraham v twig more cro Elizabeth cite in beresford case cro b  which seem at first to be against I be the only matter that stick with I but I  shall show wherein that differ from the present case I be sure I have the  intention of the surrender on my side it must be agree that the word de  corpore be not precise necessary to the creation of a estatetail it be  sufficient that there be other word tantamount and I agree that there be no  difference in point of construction between limitation of estate out of  freehold and copyhold land in this limitation here be the word heir and it be  further explain what heir be mean sure of Valentine and Alice and though the  word be in the genitive case sure hredum predictorum valentini et Alici yet  they import the same as if they have be limit in the ablative case with the  preposition de videlicet hredum de predict Valentine et Alicia and then the  last word ascertain what heir sure such issue of Valentine and Alice the  resolution of beresford case be very strong for I and that limitation upon  comparison have no more word in it than be in our case the word such issue  restrain it to the heir of their two body and do not extend to the heir of the  survivor beck case in Littleton report and also report in cro car by the name  of boreton v Nichols et all be a authority in point f or I for the question  there be whether the limitation be a estatetail or a contingent feesimple and  it be hold a estatetail for if it have be a contingent fee the remainder over  have be void peer William as to the case of Abraham v twig the limitation  there be not like we because there it be to the use of Gabriel dorm and his  heir male not to the use of Gabriel dorm and the heir male of Gabriel dorm  aforesaid as it be in our case sure and of the heir and assign of the  aforesaid Valentine and Alice as the difference peer William er p be agree in  Littleton report it be hold in Plowd a if a man make a feoff to another to  have and to hold to he and his heir et si to touch that the feoff die without  heir of his body that then the land shall revert the feoff take only a  estatetail the generality of the gift be correct by the subsequent clause so  be the h it be object that the word assign import a feesimple because a  estatetail be not assignable and the subsequent word shall not control the  express limitation resp the expression of assign do not alter the sense of the  limitation for a man assign be include in himself and imply in the limitation  to the surrendees before also the same word assign be to be find in canon case  Leon and yet that be adjudge but a estatetail powis I I be of opinion that the  estate be a feesimple in Valentine and Alice it be a constant rule that in  every creation of a estatetail it must appear of what body the person who be  to inherit must issue this be of the essence of the estate Inst and therefore  if a man give land to another to hold to he and his heir male the do take a  feesimple because it be peer William not limit by the gift of what body the  issue male must be whereas those word in a devise carry a estatetail because  of the intent but in a conveyance at commonlaw as this be the donor must by  express word give direction from who body the heir inheritable be to issue  Litt sect Inst h hob h a gift to a than et hredibus de meat svan be a  estatetail assize pl for the word de corpore be not so strict require but that  they may be express by word tantamount and the example which the statute of  Westminster put have not these word de corpore his I Inst b but the word de or  ex arean absolute necessary to make a estatetail h Edward the resolution in  beresford case turn upon the word de in our case the limitation appear at  first in Latin ready to our hand in the genitive case but in Abraham and twig  case it be in English and afterward turn into Latin and that case be adjudge  upon great deliberation yet we be much strong to pass a feesimple but it be  object that the word such issue in the subsequent clause import issue of both  Valentine and Alice resp suppose that to be so it still omit of what body that  issue be to come which be the principal thing for upon the first clause the  heir of the survivor take the whole and they be such issue and so it remain  uncertain of who body the issue inheritable be to come it will have be  otherwise if the word have be and for want of issue of the survivor c but here  the word be as general as can be it be indeed the intent of the surrender in  this case to give Valentine and peer William Alice only a estatetail but then  he ought to have make use of proper word and there be no difference in  construction between copyhold and freehold land see ante fisher v Wigg as be  agree in the case of Seagood v hone cro car but it be object that will a giver  ought to be observe and here be a remainder limit over as to that the will of  the donor to be observe ought to be in paper svan manifest to press out which  be not so here but this point have be already determine in the case of  Harrington v smith side which be our case in boundary and upon a surrender too  and although it be not mention in the book whether any opinion be give yet by  the note which I have of that case it be then hold to be a feesimple it will  be of dangerous consequence to allow a great latitude in limitation of  estatetail than have heretofore be do Powel I I be of opinion that the estate  limit to Valentine and Alice be a feesimple the objection be that it appear to  have be the surrender intent to pass only a estatetail but upon great  consideration I can persuade myself to comply with that intent without do a  great injury by confound the nature of estate and set no bind to limitation so  that it will never be know what be a estatetail and what a feesimple a feetail  be a feesimple at commonlaw for there be three sort of feesimples absolute  qualify which be as to time only sure as long peer William as such a tree  stand or as of his body and also feesimple conditional which be limit as to  for it be not a fee accrueing upon performance of a condition peer William er  p the donee have a immediate inheritance though it be true he have a great  power over the estate upon the condition perform but upon such performance of  the condition he have not a estate descendible in any other manner than before  no body can inherit but such heir as be within the limitation but in regard  some be of opinion that at commonlaw the second husband shall be tenant by the  courtesy and the issue by he inheritable when the estate be original limit  only to the first husband and wife and the issue between they therefore to  damn this opinion be the statute de gift make I upon which statute the judge  by construction have make two estate out of the feesimple conditional at  commonlaw the construction of limitation must be the same upon surrender Lovel  v Lovel atk as upon deed and though it be otherwise in will yet even in these  notwithstanding the word heir of his body be not necessary at commonlaw there  always ought however to be some restraint of the general word heir to make a  estatetail as appear in the case of Herne v Allen cro car ante Nottingham v  Jennings for there the limitation over can not possible take effect if the  devise be not mean of heir special now be here any word of restriction to a  heir special nun that be so restrictive as to show a apparent intent in the  surrender that only the issue between Valentine and Alice shall inherit any  more than there be in Abraham and twig case which in my apprehension do not  differ from this I do not understand my brother Goulds diversity I think the  heir of they and their heir be the same and the word peer William such issue  be of no service for they be uncertain and do not determine of who body and  the heir general in the first part of the limitation be such issue but if the  word have be for want of issue of they it may have be a estatetail but all  heir be issue of some body we have go too far already in help the intention of  the party in construction of limitation and have make estate so uncertain that  lawyer do not know how to advice purchaser I can consent to carry it any  further beck case differ from this and it be not necessary or material in that  case to determine whether the estate limit be a feesimple or a feetail for if  the remainder be contingent that be sufficient and in the mean time the  remainder in be be execute and the contingent remainder never happen but there  be more special word in that case sure heir male of his body and although the  limitation to the first son of James beck which shall have heir male c be  onlya description of the person yet the word such issue may likewise well  enough refer to thewords heir male which may help the resolution but here be  only general word and nothing special to refer such issue unto the case of  Harrington and smith cite by my brother powis be the case in point holt c I I  be of opinion that as the word of this limitation be the estate limit to  Valentine and Alice be a feesimple peer William and that as they stand  original upon the surrender in Latin they can be construe to make a estatetail  I be satisfy that it be the surrenders intent to give Valentine and Alice only  a estatetail for which reason I will Willing have construe it so but can not  make such a construction consistent with reason or any rule of law the  construction of this surrender must be the same as if the estate have be limit  by feoff or any other deed and must be alike govern by the same rule of the  commonlaw it be necessary upon the creation of every estatetail that it be  express in certain of what body the heir inheritable shall issue light sect  Inst in a gift of land to another to hold to he and to his heir male the word  male be reject and the word heir stand in the limitation to make a feesimple  for that it can not be a entail there be no limitation by the gift of what  body such issue shall be and yet in that case it be impossible to doubt but  that the intention of the donor be to make a estatetail notwithstanding which  it be hold to be a feesimple and Lord coke very positive in his opinion in the  present case here be no certainty of who body the heir shall be and the word  be sufficient to carry a feesimple indeed in a will such word will make a  estatetail pure upon the intent of the devisor but there be a great difference  betwixt a will and a conveyance at commonlaw as this be for the law have  appoint proper word to be make use of in limitation of estate in deed as the  word heir to tarry a feesimple and no other word tantamount or equivalent will  be admit peer William er p whereas in a will it be otherwise for peer William  that be a new conveyance by force of the statute of h which say it shall be  lawful for a man to dispose of his land by will at his will and pleasure and  this be the reason why a devise to a man in continuous passes a feesimple at  the same time that these word in a deed give only a estate for life in this  limitation we have no restrictive word to turn the estate that by force of the  first word be a feesimple into a estate tail indeed if it have be say if  Valentine and Alice die without issue of their body that be express and  particular will have make it a estatetail but as it now stand the first word  carry a feesimple and the latter be consistent with they make no alteration in  the estate in the case of h and h the limitation be certain and express of who  body but it be object that a estatetail may arise by implication as in Perk  sect I agree that case to be law for the word be express but they be not so  here for in our case the word such issue import heir general for there be no  heir but be the issue of some body so that be only a limitation of one  feesimple upon another if land be give to a bastard and his heir he take a  feesimple and a limitation of a remainder over upon such gift will be void and  yet the land can descend upon any other but his Inst b issue but no limitation  of a estate by implication ante Bamfield v Popham and post Humberston v  Humberston and Tomlinson v Dighton shall control a precedent limitation that  be express as be agree in the case of Seagood v hone cro car Jones and here  the estate in feesimple be a express estate whereas peer William the  estatetail which it be insist shall control it arise but by implication the  case of Abraham and twig be so strong as not to be answer and doesnot in the  least differ from the present case for that be adjudge a feesimple for want of  proper word to describe of what body the issue shall be there be a difference  betwixt a limitation in the genitive and one in the ablative case as be hold  in beresford case for the word de be make use of in the statute of Westminster  and if a estate be limit to a man and the heir male of his body it must be  translate de corpore his so if it be say of any one he be bear of such a  father that in Latin will be a begetting de tali patre Inst b in Abraham and  twig case the limitation be in the genitive case sure and of his heir male as  to the case of boreton v Nicholls cro car report also in Littleton the word  such issue must there be take to be issue male of the body of James mention  before and the resolution of that case do not affect we there I admit it be a  contingent estate but yet it may be a contingent estatetail if we shall make  this a estatetail it will be repugnant to the word in the first part of the  limitation which be to Valentine and Alice their heir and assign show the  intention of the surrender to have be that they shall have a assignable estate  and then for we by construction to make this a estatetail which be  unassignable will be contrary to the institution of the statute de gift but it  be object in answer to this that the word assign be void they be imply and  include in the donee himself and expulsion out the dawn queen c peer William  resp that rule must be intend where the sentence be one entire sentence but  still those word which as to that sentence be surplusage and void may  notwithstanding influence a subsequent sentence as in hob dyer b if I grant my  house and my shop the word shop be void because it passes as part of my house  but yet in respect of subsequent word it may have a signification as if I  grant my house and shop except my shop here the express grant of my shop have  such a signification and be of such effect as to make the exception of the  shop void it be before express grant peer William er p peer William de term S  michaelis