case white vers collins distinguish Britton v twine mere discuss chamber v  tailor my Cr Montgomery v Montgomery Jo lat ir Eq Rep consider jordan v Adam c  b n S c b n S approve pedder v hunt Q b d a limitation to one to take and  enjoy the profit of a estate during his life and after his decease to the heir  male of his body will make a estatetail where nothing appear which explain the  testator intent to the contrary otherwise not Eq Abr pl SC vin Abr title  devise b b pl f Com dig title devise n Robinson be gavelkind Ambl Rep Hargr l  tract fearne con Rem that edit p a writ of false judgement be bring upon a  judgement in ejectment give in the court of Havering at bower in come Essex be  a court of ancient demesne of the manor of the king in which white declare on  the demise of Carew Harvey alias Mildmay for one message one barn one garden  one orchard forty acre of land forty acre of meadow and fifty acre of pasture  with their appurtenance in Hornchurch infra jurisdiction cur upon not guilty  plead at the trial the jury by consent find a special verdict to this effect  that Francis Harvey all Mildmay Esq be seize in fee of the land in question  which be the ancient demesne of the crown and by his will date the that of  July devise to his old son who be lessor of the plaintiff two field for life  and after his death I give those two field to the heir male of his body lawful  beget during the term of his natural life and after the death of such heir  male I give the say field and all the land and tenement not sell by my  executor and trustee to my son Francis Mildmay during his life and to the heir  male of his body lawful beget during the term of his natural life and for want  of such heir male I give those two field and all my land not sell comens c to  my son Carew Mildmay during his life and after his death to the heir male of  his body lawful beget during the term of his natural life and for want of such  heir male I give the say field and land among all my daughter which shall be  alive at my death and by another clause in the say will he devise the land in  question by these word videlicet I give to my son frank Mildmay my farm call  EastHouse farm c to enjoy the rend and profit thereof during the term of his  natural life with power to make a jointure of all or part if he shall marry  and after his death and jointure if any be make to the heir male of his body  lawful beget during the term of his natural life and for want of such heir  male I give the say farm to my son Carew Mildmay during his life and after his  death I give it to my grandchild Carew comens er p Mildmay during his life and  afterward he give it to his grandchild Edward and Richard Mildmay equal to be  divide the jury further find that the testator die leave Carew Mildmay his old  son and Francis his second son that the old son at the time of the will make  and at the death of the testator have issue Carew Edmund and Richard but frank  the second son be not marry nor have any issue that frank Mildmay enter and by  deed of lease and release date the that and that of July convey the say land  call EastHouse farm to Robert Coleman and his heir to make he tenant of the  freehold against who a common recovery may be have to the use of frank Mildmay  and his heir and afterward at the court for the manor of Havering at bower on  the d of July upon a writ of right close test the d of January a recovery be  suffer in which frank Mildmay be vouchee who afterward by his will date the  that of march devise the say land to his young brother c and die the young  brother enter and be seize prout law demand upon who Carew Mildmay the lessor  of the plaintiff enter and demise to the plaintiff and if c the common error  be assign and the principal question upon this special verdict be comens if by  this devise to frank Mildmay he be tenant in tail or for life only for if he  be only tenant for life his recovery be of no avail and the lessor of the  plaintiff will have a good title but if he be tenant in tail his recovery have  bar or at least discontinue the remainder limit by his father will and then  the lessor of the plaintiff have no title or entry I hold that the common  recovery bar the entail kit I argue that by this devise of Francis Harvey all  Mildmay his son frank Mildmay have a estatetail and for the better apprehend  this it will be necessary to consider the word of the devise if the devise  have be I give to my son frank Mildmay and to the heir male of his body this  will without question have be a estatetail though the word heir be nomen  proceeding by inference and comprehend all the heir which shall descend from  his body and so it be agree by all the justice in the case of clark for day  cro Elizabeth Owen though in the principal case there the court be divide in a  conveyance at commonlaw those word make a estatetail   Litt a In coke  Littleton fol b we find a opinion direct contrary to the above cite the case  ass where the grant be to baron and feme uni heir de corpore his procreate uni  heir so much c in a assize bring by the donor against the heir who plead their  grant in bar to the assize the plaintiff insist that the baron and feme have  but a estate for life but it be hold b all the justice that the plaintiff have  no cause of assize and be nonsuit so Reg jud a to know facias be bring to  execute a fine by the heir of he in remainder where the estate be render to r  for life and after his death to g and the heir of his body si obierit without  heir male de corpore his procreate to stay behind to his brother I heir male  de corpore his c comens there be no necessity to cite case to prove that the  word heir be nomen proceeding by inference many be mention in roll Abr second  if the word of the devise have be I give to my son frank and to enjoy the rend  and profit thereof during the term of his natural life with power to make a  jointure of all or part if he shall marry and after his death and jointure if  any be make to the heir male of his body lawful beget without say any thing  wear this will have be a estatetail if there be a devise to a man for life and  after his death to the heir of his body it be full agree by the lawbook that  this make a estatetail in wild case as report by more Eq Abr pl   b Powell on  Dev a Popham say that if there be a devise to a man for life and afterward to  his heir male this make a entail and cite a case old bendl Bulst and Poll  dougl Com dig b bend Elizabeth where it be adjudge that a devise to one for  life and after his death to the manchild of his body be hold a estatetail  sandis case   b be this Merrick seize in fee and have five son William Samuel  Thomas Richard and Daniel devise to his wife for life and after her death his  son William to have it and if his son William marry and have any male issue c  then his son to have the house if he have no male issue c to his son Samuel in  as many word and if Samuel have no issue male then his son Thomas comens er p  to have the house if Thomas marry have a male issue of his body lawful beget  then his son to have the house after his decease if he have no male issue then  to Richard and then to Daniel in the same word and if any of his son or their  heir male issue of their body go about to alien c the next heir to enter c  William and Samuel die without issue male and it be adjudge that Thomas have a  estatetail and therefore his comens recovery good though the limitation be if  Thomas marry have a male issue in the singular number and though it be say  that such son not issue shall have it after his death for upon the whole of  the word it appear that Richard be not to have it but in default of issue male  of Thomas a man devise to r his old son for ever and after his death to the  heir male of his body for ever pro diminution ankle heir male all in the  singular number to e his other son for ever for the book be wrong print old  son whereas it ought to have be other son adjudge by this devise r have a  estatetail not for life only Trin James b r welkin versus whiting Bulst fearne  c r a roll Abr pl h and it be adjudge without any difficulty that a devise to  a for life upon condition mention in the will and after his decease to the use  of the heir of his body make a estatetail in a though limit to he express for  life only hill car c b rundall vers eely cart the case of king and mell car be  strong Robert mell devise to his son Barnard mell who have then a wife name  Elizabeth for life and after his death in these word videlicet I give the same  to the issue of his body lawful beget on the body of any second wife he shall  happen to marry and for want of such issue to my son John mell and his heir  provide Barnard may make any such second wife a jointure which she may enjoy  for her life in this case it be strong urge that the devise be to Barnard  express for life with a power to make a jointure that issue be a good name of  purchase comprehend all the issue of the second marriage to which the testator  appear to have a equal regard and that they shall all take if it be take to be  a name of purchase Barnard by this devise shall take only a estate for life  with contingent remainder to the issue of the second marriage in tail  remainder to John mell in fee and in the king bench two judge be of the same  opinion and hale c j say that at first he be of the same opinion but upon  great consideration comens of the case and the consequence of it and on a  through examination of the will and the authority be hold that Barnard have a  estatetail and so it be resolve by all the judge in the exchequer Chamber upon  a writ of error vent salk keb Eq Abr pl S c infra p b lev Poll and VentrisI  have be unable to discover the author by who this case be report and I  apprehend there be some mistake in the reference as Lord Hardwicke in the case  of lethieullier versus Tracy atk Amb Rep declare that the report of king  versus mell in Ventris be very imperfect especial as to the case say to have  be cite by hale dougl in note say that c I hale in his argument cite buckleys  case Elizabeth where there be a devise to a for life remainder to his next  heir male and in default of such heir male remainder to another adjudge thatA  have a estatetail and vent say he also cite the case of Hamsey versus Lowther  adjudge in where a copyholder surrender to the use of his will and thereby  devise it to his old son for life and after his decease to the heir male of  his body c resolve that the son have a estatetail this last case seem to be  the same as be mention roll Abr pl between Pawsey and Lowdell pasch and report  by style style roll Abr pl a roll say that the devise be to b for life and  after his death to the heir of his body beget for ever and that it be resolve  to be a fee execute in b but by style it appear to be resolve that it be a  estate tail and so it be cite Poll by all these case it appear that if there  be a devise to one for life and after his death to the heir issue or child of  his body this make a estatetail as well as if it have be limit to he and the  heir or issue of his body direct without the word for life or after his  decease that if the limitation be to the heir male of his body in the singular  number it have the same effect as if it have be to the heir male c in the  plural number and by the resolution in the case of king versus mell it appear  that a power to make a jointure make no difference for as hale say vent tenant  in tail can make a jointure out of his estate without discontinue or merge or  destroy the estatetail but in the present case to enforce comens this  construction that the testator intend his son frank a estate of inheritance  and not a estate for life only I must observe that the word be not I give to  my son frank my farm comens er p call EastHouse farm for his life but I give  to my son frank my farm c to enjoy the rend and profit thereof during the term  of his natural life with power to make a jointure and after his decease and  jointure to the heir male of his body c therefore the word I give which begin  the sentence govern the whole clause the bequest or gift be not make to the  heir male after the death of the father but only to the father and his heir  male the heir male can take by any substantive clause of devise to he but only  by virtue of the devise to his father and then the word to enjoy the rend and  profit during his life do not import that the testator intend he only a estate  for life but that the testator take notice of the effect and consequence of  the estate by he devise he give this farm to his son frank and the heir male  of his body with power to make a jointure in consequence of which devise his  son must enjoy the rend and profit during his life the jointress after he if  any jointure be make and after the death of the father and jointress the heir  male this seem to be the obvious construction and intent of the word and the  word if there be occasion may be transpose to support the intent second it be  to be observe that the limitation be to his son frank and the heir male of his  body lawful beget which be the usual phrase and expression in limit a  estatetail and give some ground to imagine the testator have such a estate in  his intention three the limitation be to the heir male of the body of frank  and in limitation by will it be material to observe from who body the heir who  be to take be to proceed in order to the better determine in who the  estatetail be to be fix for where the limitation be to one and the heir of his  body general the estatetail vest in he for the rule lie down   light b that  where the ancestor take a estate for life comens and afterward there be a  limitation to his right heir the heir shall not be a purchaser obtain in the  construction of will if a feoff be make or a fine levy or recovery suffer to  the use of b for life and after his decease to the heir of the body of b to be  beget remainder to d in fee b take a estatetail execute in himself and the  heir of his body can take by purchase so in a will if a devise be to one for  life and afterward a limitation of the same estate be make to his right heir  or to the heir or heir of his body or issue or child of his body the father  shall have the whole estate and his heir or issue shall take by descent and  not by purchase fourthly it be to be observe that the limitation by the  testator to his old son be in default of such heir male the devise be to frank  and to the heir male of his body lawful beget and therefore when the devise  over to the old son be for want of such heir male it be tantamount to say and  for want of heir male of the body of my son frank lawful beget I give the say  farm to my son Carew Mildmay which show apparent the intent of the testator  that Carew shall not take while there be any issue of the body of frank these  word of themselves be sufficient to create a estatetail as hale observe vent  and for that purpose cite Robinson be case throw where a man devise to a for  life and if be die without issue then be devise over it be resolve that a take  a estatetail which seem to be the case mention in roll Abr pl more Brownl S c  a Robinson versus miller in b r though there it be say to be Trin James and be  there more restrictive if a man devise to his wife for life and afterward to  his son for life and if he die without issue have no son that b shall have it  resolve that the son take a estate in tail male the latter word then be to be  consider videlicet during the term of his natural life if these make any  difference in the construction of the will I give to my son frank and the heir  male of his body lawful beget during the term of his natural life and for want  of such heir male I give the say farm to my son Carew c comens if frank take a  estate tail then his heir male when it descend to he will also take a estate  in tail and his estate will not determine with his life and that he do take a  estatetail beside the reason and authority before mention may be collect from  the general intention of the testator who take notice that frank have no issue  nor be marry and therefore provide for he that be may make a jointure and  provide for the issue male of that marriage but such provision will be  defective if he provide only for one of such issue and for he comens er p only  for life all the son of frank and their descendant require a provision and it  seem more agreeable to the design of the testator that all shall be the object  of his care it will be also more agreeable to his expression in other part of  the will for as to another clause in the will it be find by the special  verdict that the testator give to his son Carew two field for his life and  after his death I give those two field to his heir male of his body lawful  beget during the term of his natural life and after the death of such heir  male I give those field and all my land not sell c to my son frank during the  term of his natural life and to the heir male of his body lawful to be beget  during his life and for want of such heir male I give those field and land t  my son Carew for life and to the heir male of his body c during his natural  life and for want of such heir male to his daughter by which clause though the  inaccuracy of the testator appear and though the word heir male of his body  lawful beget be use for the designation of any son of Carew who shall be his  heir after his death yet it be apparent first that he make a distinction in  the use of the same phrase for his comens intent appear to be that Carew shall  have the two field for his life and his old son who he afterward take notice  of in his will by name shall also have they after the death of his father for  life that frank shall have the other land not sell by his executor except the  two field immediate after the death of the testator and the two field also  after the death of Carew and his old son to he and the heir male of his body  and that in default of such issue the two field and the other land not sell  shall go to Carew and the heir of his body and for want of such issue to the  daughter of the testator and therefore the two field intend for Carew and his  old son for life be limit and after the death of such heir male not for want  of such heir male of frank which show that he make a difference between those  expression the two field be devise to Carew for life then to his heir male  which be Carew the grandchild of the testator for life and after his death to  frank and for want of a heir male of frank to Carew again by which it appear  that there be manifest difference accord to the testator apprehension between  the word after the death of such heir male and the word for want of such heir  male for the phrase for want of such heir male import failure of issue male  and this be the more evident because after the failure of issue male of frank  and failure of issue male of Carew he devise all the land to his daughter and  for the same reason the word heir male of his body beget apply to the son of  Carew who be then in be be demarcation mask and heir male of the body of frank  to be beget be word of limitation but if in this clause the disposition to  frank for life and after his decease to the heir male of his body lawful to be  beget for life and for want of such heir male to Carew c make a estatetail as  it must unless we suppose that he dispose of all his land to his daughter  before failure of his issue male then de salary of pastor the same word shall  have the same construction in the clause which devise the land in question  comens but then the question remain what the testator intend by these word  during the term of his natural life it may be the testator have use that  expression in the beginning of the disposition of his land be of opinion that  the repetition of they be necessary to each limitation or as Lord hale say  vent perhaps the testator apprehend that the devisee have but a estate for  life for tenant in tail have only a estate for life in many respect or intend  that each devisee shall have only a estate for life but his intention be  inconsistent with the rule of law and in will where word be add inconsistent  with the estate which the testator have devise they shall be reject in all  case where there be a devise to one for life and after his death to the issue  or heir of his body the word during the term of his life shall be reject in  all language and author it be frequent to find word which be abundant and can  be take into the construction consistent with the scope and design of the  author it be therefore less to be wonder at that it shall be so in will where  the testator be weak council and by reason of his infirmity many time can  attend to the accuracy of the expression and therefore there be frequent  instance of this nature where some word be to be pass by or reject comens er p  in the case of Newton and Bernardine more in a action of debt for rend the  case appear to be this Cosham have issue Thomas Richard and Gilbert devise  twenty noble to the child of Thomas who be dead and his wife ensient for  twenty year and if my son Richard die before he have any issue of his body so  that my land descend to Gilbert before he come to twentyone my executor shall  occupy it till Gilbert come to twentyone year of age resolve that Richard have  a estatetail for the word before h have any issue be tantamount to without  issue and then the subsequent word can prejudice comens so Tilley versus  collier keb S c a lev remnant have three daughter Susan whether and Elizabeth  devise his land to his wife till his heir be twentyone and give to whether and  Elizabeth and if Susan his heir die without heir before twentyone so that the  land come to whether her portion shall go to Elizabeth adjudge that Susan have  a estatetail and that the word before twentyone shall be reject so if land be  devise to a and the heir male of his body during the term of year it shall be  a estate tail in a and the word during the term of year shall be void brown SC  Bulst roll Abr a Lovice versus Goddard cro more it be true that croak say that  Anderson and Warburton hold the word for year to be void but Daniel and  walmsly hold the word not mere void but to have such a construction that the  estatetail shall cease on the expiration of the year yet more say that it be  agree by all the justice that the limitation for year be void a writ of error  be bring on this judgement and the first judgement reverse which be report    and though it be there say   that the chief justice hold that this be a devise  of a term for year and not of a inheritance to which winch agree and that the  term determine on the die without issue there be no resolution give by the  court upon this point be controvert between the judge of the common plea and  the king bench in the first cause upon the same will the difference seem to be  that some of the judge will transpose the word to make all consistent and then  it will be a devise for year if a and the heir male of his body shall so long  live but all the judge who take the intention of the testator to be to give a  estatetail hold that the word during the term of year shall be reject but in  the present case the word during the term of his life can be transpose  consistent for they can receive a construction with any propriety except where  they be place comens by the testator and there if the prior word grant a  estatetail they ought to be pass by as of no efficacy this case be afterward  argue by sergeant Selby for the plaintiff in error and by sergeant cheshire  for the defendant Pas Geo and the judgement be affirm by the court for it be  agree that the limitation to frank to enjoy and take the profit during his  life and after his decease to the heir male of his body will make a estatetail  so if it have be to the heir male of his body in the singular number where  nothing appear which explain the intent to the contrary but here the intention  appear to be that such heir male shall have the land only for life which show  that the testator do not intend that those word shall be take as word of  limitation and nothing appear in the nature of the expression which import  that they shall be take so heir male or next heir male which be word of the  same import for a man can be heir male if he be not next heir male be word of  purchase in archer case and cro Elizabeth Eq Abr pl S c a   b the devise be to  his right and next heir male and though there his son be then in be that make  no difference for if he have not have a son in be it will have be a contingent  remainder if he have one it be a remainder vest but the reason upon whichit be  resolve in archer case that the devise to Robert archer for life and after his  decease to his right and next heir male and the heir male of his body be not a  estatetail in Robert archer but only a estate for life with remainder to his  son in tail be that the word of limitation be add to the devise to his next  heir male show that he do not intend the word next heir male as word of  limitation but as a description of the person who be to take in remainder and  therefore in this case where the devise be to frank and after his decease to  the comens er p heir male of his body during his life the express limitation  during his life show that be intend his son shall have it in remainder for his  life only and there seem to be no difference between comens their case and  archer case and when he devise it over for want of such heir male to Carew  Mildmay c this do not import that Carew shall not have it till frank die  without heir male general but for want of such heir male who be to have it for  life