case Gascoigne and other versus barker December on a rehear S c Ves a heir be  not to be disinherit unless by express word or a necessary implication and the  rule hold equal where he be a heir of customary land a parenthesis be not to  be reject in legal case though accord to the rule of grammar a sentence may be  complete without it a question be make in this cause on the will of Scorey  Barker which be as follow I give to my son Henry all my land tenement and  hereditament in possession and reversion freehold and copyhold in the parish  of chiswicke or elsewhere in the county of Middlesex which note it seem Lord  Hardwicke lie great stress upon this relative pronoun which see Ves copyhold  land I have surrender to the use of my will to he and his heir Mr attorney  general insist that all the copyhold land pass and that the word in the  parenthesis be superfluous and atkins that it be a absolute devise and the  subsequent word may be reject accord to the maxim in law utile per inutile non  to make faulty and in support of this doctrine cite hob marsh Rep dyer or if  the court shall be of opinion not to reject these word then he insist that  they be large enough to extend to all the testator copyhold land and ought not  to be restrain to a part only Lord chancellor the first question be whether  the word in the parenthesis be to be take as restrictive of the first word of  the devise and I can take they no otherwise this be the case of land devise by  general word if instead of this the testator have say I give my message with  the appurtenance call the king of Bohemia head that will have be a different  case and I shall have think the subsequent word a mistake only in the  description but when a man do not make a certain definitive description it be  very difficult for court of justice not to construe the subsequent restrictive  word as explanatory of the former as to the case in marsh Rep of tithe it be  not similar to this for if they have construe it otherwise the will must have  be absolute void so likewise in the case in dyer where a man devise his  message late Richard cotton c if the court have suffer the mistake to prevail  it will have make the devise void but here the construction I make will have a  effect as to part of the copyhold land which be actual surrender though not as  to the whole the case in cro car chamberlain versus turner do not come up to  this I devise the house or tenement wherein William Nicholls dwell call the  white swan in old street to Henry gallant my daughter son for ever and the  question be whether all the house pass or the entry and those three room which  be in William Nicholls possession only and three judge be of opinion that the  whole house pass I wonder how it hold so much debate for the previous part of  the description be true it be of no consequence if there be twenty other  lodger as William Nicholls lodge there likewise a observation have be make on  its be in a parenthesis that the sentence for this reason be independent and  complete without it and therefore this may be reject as superfluous atkins it  be true with regard to the nicety of grammar the observation may be right in  some instance but in legal case a parenthesis be not to be reject beside there  be many instance in the common kind of write where comma only be use instead  of a parenthesis therefore this may be lie out of the case but what make it  still strong there be a plain reason here for a parenthesis because in the  former part of the devise the testator have couple the word copyhold and  freehold together and therefore he be under a necessity of throw it into a  parenthesis with the repetition of the word copyhold so that the authority do  not come up to the case make by Mr Henry Barker the devisee for those case be  all in grant I have a doubt whether in the case of grant the construction be  more strict than in will for if a man grant to another such and such house in  the occupation of a atkins er p b and c and afterward except the house in the  occupation of b the exception be void because they will rather reject the  subsequent exception entire than the grant itself shall be void this be a  question between a heir and devisee and a heir be not to be disinherit unless  by express word or a necessary implication and I know no distinction from this  rule where the heir be a heir of customary land any more than where he be of  freehold the great objection which have some weight be that there be part of  the same inn or house which have be surrender and if the testator have  describe it by name I shall have be of opinion the whole will have pass though  part only have be surrender but it appear by the surrender themselves which be  at different time that part of the inn be not buy till some time after the  first surrender and therefore this fact clear up and explain the intention of  the testator so that the court must make so many stretch here in order to  disinherit the customary heir that it be much better to let the word have  their plain and obvious meaning though the defendant be young child and claim  it as a provision the decree must be affirm note in bank v denshire Ves post  Lord Hardwicke observe that he determine the above case relative to the king  of Bohemia head with great reluctance indeed the parenthesis in this case  which seem to have be the ground of the determination appear to differ but  very slight from that in bank v denshire vide Allen v Poulton Ves