brown versus Barkham Feb I g in court see before p S c where there may be hres  to live vide ante the chancellor have take time to consider of this case do  now declare his opinion first he put the case at large and then premise that  natural and accord to the common sense and reason of mankind every one at  first read the will will be clear of opinion that the testator intent in this  case be to give his estate to his heir male and none but a lawyer and one who  judgement be bias by the learning of the law can possible understand otherwise  but since resolution of law and decree in equity Gilbert have from time to  time introduce and establish certain rule and artificial mode of property he  think it necessary to consider such of they as have be cite and make use of to  disprove this natural construction of the will before he give his own  judgement the first that have be cite be that he who take as heir or heir male  can it take while his ancestor be live for the rule be that no one be hres to  live and this be archer case c but the rule make nothing in the present case  first because here the ancestor be dead at the time when the devise take place  second because here the word of the devise be all strict and literal verify of  the person that be to take as heir male when the devise take place and so  nothing can be infer from that rule to influence the present case but now in  archer case the word be not all true concern he who be to take as heir male  for his ancestor be live at the time when the will Gilbert report er p take  effect and so accord to the rule before mention he can not take as heir male  but in our case the ancestor be dead long before even the make the will the  defendant Barkham may be true and literal call his heir male and consequent  capable of take by that name if nothing else hinder another case that have be  cite be the case of Challenor versus boyer Leon but that likewise be nothing  to this purpose because there the old son be live when the remainder shall  have vest in the heir of his body which it can not do during his father be  life for during his life he be no more heir male than he be female so neither  the case in die be of any force at law in the present question for there the  son who claim the remainder be to make himself right heir both of the body of  the father and mother which during his father be life he can not do but in  that case it be strong imply that if the father have be dead the son shall  have take as right heir of their two body a second objection have be make that  he who take as a purchaser by the name of heir male must answer the whole  description that be he must be heir and male which the defendant Barkham be  not but this be a rule that have no foundation in natural reason but be raise  and support by the artifice of the lawyer and under this head we may consider  the principal case of Counden and clerk and Sexhursts case cite at the end of  that case and also the case of sterling and estrick in this court in all which  case it be observable first that the limitation be only to the heir male not  say of the body second whoever observe careful the manner of my Lord hobart  argument foe will find his own opinion to have be for the devise if it have be  make to the heir male of the body and there seem to have be some mistake creep  into the print in the transcribe that part of the case which look to have be  at first otherwise and as to the case of sterling and estrick beside that  there be no mention of the word body that be in the case of a deed direct a  conveyance to his heir male and so he think the decree in that case extreme  right and shall have give the same if it have come before he but now none of  all these case do in any sort affect the present case for if Gilbert the  reason for reject this devise be good because part of the description of the  person intend to take be not true the same will be a good reason for allow the  devise in the present case where the whole description be strict and literal  true for without question one may take as heir male of the body of a person  decease who be no heir general of the same person first because the intent of  the testator be manifest and appear at first view who be the person mean to  take thereby second the distinction between take by purchase and take by  descent where the word be the same though it be mention in book of good  authority yet it seem to have no good foundation of reason or authority of law  to support it and if it shall prevail in all case will overthrow another rule  of law as certain and as well establish which be that a person may take by  purchase if he be sufficient describe though he have neither addition of  Christian or surname give he nay though his Christian name be false or mistake  as appear by several case put to this purpose in c l a and if so certain such  a description of the person as have all the mark and character whereby he may  be know and be defective in none must be sufficient to entitle he under that  description and that be the present case for the word here be all true second  they be no more than true for Edward Barkham in the strict propriety of speech  be heir male of the body of his great grandfather and the book which be to the  contrary infer to make out their conclusion that the word be not true which  show that if they be true the authority of those book must fail now that they  be not true they endeavour to prove by urge that the person who be to take by  such a description must be both heir male and heir general for if he fail in  either he be not the person describe but this sure be no good reason though it  be true that the word heir take single by itself can be true of none but he  who be heir general yet when they be join with the word male or female of the  body the be true of he or her who descend from the body though they be not  heir general and to say otherwise be a very disingenuous and unfair way of  construe word for suppose a man have land at commonlaw and other land in  burrow English and he devise his land at commonlaw to his heir in burrow  English or suppose a man have land at commonlaw and other land in gavelkind in  these case if a man stop at the word heir or heir it be certain the young son  in one case or all the son in the other case can it take because the old son  be only Gilbert report er p heir and so this can never be a just construction  of such a will but now take all the word together and it be then most certain  a good devise to the young son who be heir in burrow English in the first  place and to all the son who be heir in gavelkind in the other so in the  principal case leave out the word male of his body and then no doubt but the  heir general be to take but as these word be add to distinguish he from the  heir general it will be a very unjust way of wrest and pervert a man word to  leave they out pure to let in another who the testator never intend shall take  and Gilbert the addition of these word be pure to distinguish he from the heir  general yet you say none can take but the heir general though to give it from  he those very word be add to distinguish the person describe to take which be  all one as to say though the law allow a heir general and heir special as two  distinct person yet none can take who be not heir general and heir special in  one person which be to confound and destroy the very distinction itself  between they beside here the very person to take be certain and know Edward  Barkham and no other be heir male of the body of his great grandfather and the  description of he by these word be correct and perfect three if the word heir  male of the body in the plural number be a sufficient description to convey  land by descent from the ancestor to the heir male of his body they be as  sufficient to pass such land to the same heir male of that body by purchase  where the intent if the testator appear to be so and this be not a  construction wrought upon the statute for that statute do not determine or  meddle with what be word of purchase and what not or how the heir of the body  that be to take shall be describe nor be there any such distinction between a  purchase and a descent arise upon that statute for the word here make use of  in this devise be all at the commonlaw long before this statute of gift which  do not create such heir male of the body for he will have take by such a  devise at the commonlaw as sufficient describe and know and the statute only  affirm the description and this be say be the principal reason of the opinion  he be now to deliver and the author which have be cite to the contrary do not  at all come up to the case there be no mention of the word body in any of they  and as to the opinion of hob that the word heir male of the body be not  sufficient word of purchase where another be heir general he say first that  that point be not at all necessary for the determination of the principal case  second from those expression in the book it look rather like a mistake than  hobart own opinion three if it be his opinion it seem not to be law because a  limitation to the heir male of the heir male of the body of a person dead  before be sufficient to vest in they by purchase without the statute and  before the statute de gift and so be John de mandeville case c l which he cite  and apply and say the whole difference in those case be between a devise to  the heir male or heir female of the body and as to shelly case the principal  case there be rather a confirmation of this opinion for there the ancestor be  dead at the time when the limitation take place and for my Lord coke report of  that case it seem only to be his own argument as he be of counsel in it and  though he do indeed la down the distinction between take by purchase and by  descent yet Wray chief justice when he come to sum up the reason of the  judgement take no manner of notice of that distinction so that it seem to be  only my Lord coke own opinion without any authority to support it but then  indeed this doctrine be again transcribe into his first institute c and shelly  case cite for it which be the only authority to warrant that distinction for  as to the Gilbert yearbooks refer to in the margin he say he have look into  every one of they with all the care he can that he may go to the bottom of the  question and those book be so far from warrant such a opinion that there be  but one of they at all to the purpose and that be direct contrary to what it  be cite to prove for as to the h and and h it be a limitation only to the heir  male not heir male of the body beside that he be not in be when the limitation  to he be to take place and so that case can be no ground for my Lord coke  opinion another case cite to support this opinion be the h bro title de gift  sect but on look into the case it appear to be nothing at all to the purpose  and bro title Hussey case there be no judicial resolution on this point one  way or other and dyer be only a imperfect report of shelly case and from the  weakness of these authority to prove the doctrine contend for he take occasion  to observe that there be no Gilbert report er p rely on sudden opinion as cite  in book and for the support of his own opinion b cite roll and vent Burchett  content Durdant alias James against Richardson which he say be a much strong  case than this now in question for there the ancestor be live and yet it be  hold such a description of he as to let he in during the ancestor life though  that be a dispensation with a ancient maxim of law quod non be hres to live  but in our case no maxim of law be infringe but Beaumont and near be case in  the house of lord late be still a much strong case for there be not so much as  the word of the body and yet the heir be sufficient describe to take even in  the life of his aunt long so that he think those opinion of my Lord coke and  Hobart to be very much outweigh by the authority of these late resolution then  he cite the case of pibus against Mitford vent and say that my Lord hale do  not think fit to rely on the common point of the father be take a estatetail  by implication but hold the word heir male of the body of his second wife a  sufficient description to vest in the she male of the body of such wife by  purchase and though the reporter of that case introduce the argument of my  Lord hale only with his say that of that he be not well satisfy yet in the  argument of my Lord hale after he seem to have profess set about confute that  opinion and take notice of such heir male of the body as a special heir at  commonlaw before the statute de gift who be capable of take by descent from  the heir general and what he cite there out of light sect of perform the  condition as near the intent as may be he prove in the present case that the  settlement must be make to the person who be the heir special and say he have  never meet with any other case to the contrary but only the opinion before  mention of coke and Hobart as for the case at the end of that of pibus and  Mitford it be direct in point for the special heir male and in that case he  take notice of his heir general as he do in the present and therefore can  never mean that his heir female shall take it when he express give it to his  heir male and in that case justice wile be of the Gilbert same opinion in that  particular so that it have the authority of two judge there and the reason of  my Lord hale there must sure convince all that hear it and be much strong than  the beforementioned opinion of coke and Hobart the last whereof amount to no  more than that he doubt of the law in this point then he cite the case of  baker content wall hill W rot in c b where a man make his will in this manner  I give my old heir male and his heir male for ever all my land in such a place  and if there be a female she to have pound per Ann as long as she life and the  testator have two son the old of which be dead in his lifetime leave a  daughter who be heir general yet the young son go away with the land and that  case as it appear by the adjournment on the roll be depend for a considerable  time so that it seem to have be settle with great judgement and deliberation  and in that case there be several expression to show that he never mean his  heir general shall take as to the case of Goodwright and Cornish which have be  cite he say it be nothing at all to the purpose and therefore he take no  notice of it last of all and upon the whole he conclude that the word of this  will be sufficient to vest the entail in question in the heir male of the body  of the great grandfather first because natural reason common sense and the  intent of the testator allow it second because the argument to the contrary be  now bring into a very narrow compass and weight three that the weight of they  if any be overweigh by judicial resolution in much strong case and therefore  the only doubt now remain be how this trust shall be execute in consider  whereof be say that the limitation to the heir male in the plural number make  no manner of difficulty for so be shelly case and when a conveyance come to be  make it must be to the person who be heir male in the singular number and the  word be more skilful in the plural number than they will have be if they have  be only in the singular as they do denote the person who be to take and do at  the same time describe the quantity of the estate he be to take and thereupon  decree that the trustee shall execute a conveyance to Edward Barkham and the  heir male of the body of his great grandfather for in this case justice  sequitur law and the conveyance must be as near the intent of the testator as  may be accord to the rule before mention light sect and a conveyance be decree  accord Gilbert report er p