case walter vers draw all in c b refer to do d Cadogan v Ewart ad e discuss  and not apply ex part Davies sim n S upon a devise that if William the old son  of the testator shall happen to die without issue that then and not otherwise  after William death the estate be to go over to his son Richard and his heir  it be hold that William take a estatetail by implication Eq Abr pl pl SC vin  Abr title devise r a pl this be a action of ejectment upon the demise of  Richard week and upon the trial at the assize in Cornwall before Mr baron  price the case appear to be this Richard week grandfather of the lessor of the  plaintiff be seize in fee and have two son William his elder and Richard his  young son by his will date the that of march devise in these word it be my  will that if William week my son shall happen to die and leave no issue of his  body lawful beget that then in that case and not otherwise after the death of  the say William my son I give and bequeathe all my land of inheritance in  Lawlissick unto the say Richard my son to have and to hold the same after the  death of the say William to he and his heir the testator die on the that of  march William his son and heir enter and in Michaelmas suffer a recovery and  by indenture date the that June declare the use of the recovery to the use of  I foot and his heir till payment of a sum of money and then to himself and his  heir afterward by lease and release date the that that of June he convey the  equity of redemption to I foot and his heir under who the defendant claim  comens on the that of January William week die without issue and on the that  of November Richard week die leave Richard week the lessor of the plaintiff  his son and heir who upon the death of William bring his ejectment and the  question be whether he be bar by the common recovery suffer by William which  be argue before Mr baron price at his chamber in sergeantsinn and I insist  that the devise to Richard the young son be a executory devise for he can not  take by way of remainder for a remainder can be without a particular estate  but here no estate be devise to William but the testator suffer his estate to  descend to he and only make a devise to Richard if William die and comens er p  leave no issue of his body and therefore Richard can take at all if he do not  take by way of a executory devise a man can take by devise if there be not  word which give the estate to he a man devise to his son after the death of  his wife Leon Leon godb cro Elizabeth more S c a Jon vent keb Freem S c b lev  SC resolve that the wife take nothing and the case in Vaugh Supra p keb Freem  Eq Abr pl S c c gardener vers Sheldon be a man devise that after the death of  his son and daughter without issue and if it shall happen that my son George  and Margaret and Katherine my daughter die without issue then all my freehold  land shall go to my nephew rise and his heir and it be agree that his daughter  take nothing at all by his will it be true that in this case in Vaughan it be  say that rise do not take by way of executory devise because the estate give  to he be to take effect after the death of the son and daughter without issue  which be a contingency too remote for the law to allow comens but here the  contingency be to take effect upon the death of William for the word be not if  William die without issue but if he die and leave no issue which be tantamount  to say if he die not have issue at the time of his death and this be enforce  by the subsequent word if William die and leave no issue then in that case and  not otherwise after the death of the say William I give the same to Richard to  hold after the death of the say William to he and his heir by which it appear  that his intention be that Richard shall have the land immediate upon the  death of William sergeant cheshire e contra No one shall take by executory  devise but he who can take any other way and here he may take by remainder for  by the word it appear to be the testator intention that William his old son  shall take in the first place and I know no rule for the construction of a  will but the intention of the devisor and here his intention be manifest that  William shall take a man devise to his wife and then say after her death my  son William be to have it and if he die his son be to have it it be hold that  William take a estatetail   b so in more there be no word of gift yet it be  hold a good devise so roll cro above p a and in this present case the recovery  be suffer upon the opinion of sergeant Pemberton and levinz that William by  this will take a estatetail remainder to Richard to which the baron incline  and afterward upon further consideration give his opinion that William take a  estatetail by this will for the word shall not be construct to give a estate  by way of executory devise but where the devisee can take any other way comens  but here William take by the will for it be a necessary implication that he  shall have it to he and his heir of his body for the heir shall take by the  will though he be not express name or there be no devise to he by express word  as   a devise to the wife for life and after her decease William be to have it  and if he die his son be to have it it be adjudge that William take a  estatetail so no devise express to the son yet he take more roll cro comens de  term sanct mich geo I in c b