case Boothby against Matthew vernon devise to the wife for life remainder to  the issue male of her body and to the heir male of such issue male remainder  over she have issue a son who die in her lifetime and then she die but she be  heir at law to the testator the reversion in fee descend on her decree that  her husband shall not be tenant by the courtesy S c Eq ab upon a bill in  chancery to set aside a conveyance which be obtain by fraud and for a  reconveyance of the estate the case be sir harry Boothby by his last will  devise the land in question to his sister whether Boothby and her assign for  her life and that if she marry and have issue male of her body live at the  time of her death then to such issue male and to his heir male for ever but if  she die leave no issue male at the time of her death then to George Boothby  and his heir for ever sir harry Boothby soon after make this will die without  issue and the say whether who be his sister and heir enter and marry with the  defendant Vernon by who she have issue a son and a daughter then whether die  and afterward the daughter die and the son survive who afterward die and the  plaintiff Mr Boothby be heir at law both to the say testator and whether but  the defendant and one young a attorney fraudulent obtain a conveyance of this  estate which be of the value of seven hundred pound ayear in consideration  only of fifty guinea the master of the roll upon the hear of this cause before  he decree that the defendant shall reconvey all his right to the say land to  the plaintiff and that the conveyance which he have thus obtain by fraud shall  be cancel and destroy and now upon a petition for a rehear before Raymond and  Gilbert lord commissioner it be insist for the defendant Mr Vernon that though  he take this conveyance know it to be fraudulent obtain by his attorney and so  be guilty modern report er p of imputative fraud yet that can be any ground to  take away any right from he which he have before that conveyance modern report  be execute and a right he have videlicet to be tenant for life by vie courtesy  of England because his wife be seize of the inheritance during the coverture  it be true it be determine by her death but it be not necessary the estate  shall continue after her death to make the husband tenant by the courtesy if  she be seize of the inheritance in her lifetime which by possibility may have  continue after her death and of such a inheritance she be seize before and  after the marriage for though she have a express estate for life give to her  by this will yet there be no immediate remainder which possible can vest  during her life but the inheritance be limit upon a contingent at her death  and therefore she be heir at law to the testator it must descend to her till  the contingency happen so that she be seize of the inheritance subject to this  contingent and though that inheritance vanish at her death yet her husband  shall be tenant by the courtesy but if not yet he have some other right to  this estate as for instance his son may take the reversion in fee by purchase  under this will and if so then the heir a part of a father will have a title  but if the son take by descent it be otherwise and it be probable the  defendant may have some other demand which he may just make to those land  therefore though this conveyance be get by his attorney by fraud and this may  be a fault in he by imputation yet there be no reason to oblige he to reconvey  all his right to the plaintiff therefore the fee descend on her even before  she marry or have issue and her estate for life be not merge by the descent of  the fee her husband shall be tenant by the courtesy and so be the case of  plunket v Holmes a lev sand a archer case b   Rep b and the case of Loddington  v kime c lev salk c and the case of carter v Barnardiston d Peer wms d be  exact the same case as Loddington v kime which receive the same determination  in the house of lord all which case plain prove that the reversion or  feesimple do descend to the heir at law though there be a hiatus or open for  the interposition of the contingent remainder when they happen in the case of  Purefoy v Roger e sand see Bac Abr Bac Abr e the fee descend to the heir till  a contingency happen by the descent of the fee to the devisee whether she be  seize of the fee and whenever a feme be seize of a feesimple at any time  during marriage and have issue and die her husband shall be tenant by the  courtesy even though she be afterward seize or the same land be recover  against her whether the feesimple descend to the heir at law be the very  question in the case of carter v Barnardiston a Eq Abr Peer wms brown p c a it  will be something odd if the husband shall not be tenant by the courtesy since  the plaintiff claim these land ill virtue of the seize in fee of whether  Boothby so that this decree be that the defendant shall reconvey general  without reserve to he that estate for life which he have by the courtesy for  that reason it ought to be reverse modern report there be another reason  likewise why it ought to be reverse and that be it be a point of law whether  the defendant be tenant by the courtesy or not that point ought not to be  determine in a court of equity without a trial at law York attorneygeneral  insist for the plaintiff that a reconveyance be absolute necessary because the  plaintiff can never recover have convey the legal estate to the defendant  until be have a reconveyance and it be not sufficient to set aside the deed as  fraudulent obtain for if the plaintiff shall bring his action at law and the  defendant shall give this deed in evidence it can be avoid by plead the fraud  and give that in evidence so that a reconveyance be necessary the question  will be what sort of conveyance and certain it must be a reconveyance without  reserve any estate for life to the defendant as tenant by the courtesy for  though it be a point in law whether he be so or not yet the court who make  this decree do not determine it without refer it to the court of common plea  for the opinion of the judge of that court and they certify that he be not  tenant by the courtesy however though it be a point in law it be a point  incidently arise on a cause proper for the jurisdiction of a court of equity  and modern report er p such point have often be determine in this court now  after a question in law refer to the opinion of the judge be by they certify  to this court it be very unusual to speak to it again upon the same head for  if that shall be allow it will be in vain to refer case in law to the judge  for their opinion and to certify to this court what the law be it be true in  the great case of the duke of Norfolk b Chan case Pollexf b the Lord  chancellor finch decree against the opinion of the judge and in the case of  gore v gore c ante c the Lord chancellor Macclesfield order the point certify  by the judge to be speak to again before himself upon some dislike of the  judge certificate and his reason be to give a opportunity that the matter may  be final determine by appeal to the house of lord but the party agree now as  to the point in law it be clear that the wife have but a estate for life by  this devise and that the reversion in fee descend on her and then the question  be if that be such a estate in possession that the husband may be modern  report tenant by the courtesy and it be argue that it be not for it must be  execute in possession otherwise the husband shall not be tenant by the  courtesy as where a estate be give to two sister and the heir of their body  the husband of her who die first shall not be tenant by the courtesy because  the estate of the survive sister intervene a roll Abr a ancient the reversion  of estate depend upon contingency be adjudge in abeyance as if a lease for  life be make remainder to the right heir of I S the feesimple be hold to be in  abeyance till I S die b   light a b but of late year it have be resolve that  there shall be some kind of descent in the mean time till the contingency  happen yet so as not to destroy they c   light c the reversion can descend in  possession and consequent the husband can be tenant by the courtesy d plunket  v Holmes lev d now here the testator have devise a express estate to his  sister for life and limit contingent remainder upon her death the fee not be  vest in possession in anybody must remain in himself as where a feoff be make  to t S for life remainder to the right heir of W S in such case if tenant for  life die before W S be who make the feoff shall have the fee and it be the  constant rule that where the reversion come to the tenant for life by the same  conveyance there the estate for life be not merge but if it come by operation  of law as by descent or by any different conveyance there it be merge and so  be the case of wood v Ingersole e vent cro James e and Harrison v bell c the  court upon the death of the wife the contingent estatetail to her issue begin  so that at that time the estate be to commence in possession and be consummate  because her estate for life by which it be to be support be go so that the  inheritance be never vest in her during her life for that reason her husband  can be tenant by the courtesy and to make this more clear the intention of the  testator be to be consider now it do not appear that he have any manner of  intention that his sister shall have any benefit of the inheritance if he have  then certain he have the whole dominion over his estate and who can have mould  it as he think proper will have show that he intend she shall have the  inheritance but there be not the least sign or badge of any such intention and  if it shall be otherwise intend by operation of law that will be a injury do  to the intention of the testator wherever the estate be to be determine by  express limitation or condition upon the death of the wife there the husband  shall not be tenant by the courtesy as where a estate for life be limit to a  woman remainder to her first and every other son in tail male remainder to the  heir of her body remainder to her right modern report heir here it be plain  that she be seize of the inheritance yet if she have a son her husband shall  not be tenant by the courtesy because the contingent estate which be to arise  upon her death intervene between her estate for life and the inheritance  agreeable with the case before mention be the yearbook Edward pl which be  tenant for life remainder in fee c the tenant for life make a lease to he in  remainder for so many year as he the remainderman shall live then tenant for  life die and so do the remainderman it be adjudge that his wife shall not be  tenant by the courtesy because the possibility which the modern report er p  tenant for life have that the estate may revert to he have bar her of all  right of dower for these reason the decree be affirm without any allowance on  account of the tenancy by courtesy and as to any other legal interest the  defendant have he may assign it to trustee but not to be give in evidence till  the plaintiff recover against the defendant and as to any equitable demand  that may be affect by this decree that the defendant shall reconvey without  prejudice to such right