case nottingham vers Jennings in b r see SC ld raym e r with note a devise by  a father to his second son and his heir for ever and for want of such heir  then to the right heir of the testator be a estate tail ld raym SC I p wms SC  salk S c Eq Abr pl S c Mod Bridgm ld raym Forr Doug Cowp term Rep Bac Abr Com  dig infra p this be a action of ejectment and upon a special verdict the case  appear to be as follow a man seize of land in fee have issue three son John  Francis and William and devise his land to Francis and his heir and for  default of heir of Francis to the heir of the devisor and whether Francis have  a feesimple or a estatetail be the question which holt c j who try the cause  comens direct to be bring before the court in respect of the case of hear and  Allen cro car Hutton SC Vaugh a and it be object by Mr Carthew that this case  be strong than the case of hear and Allen and differ from the case of web and  herring cro roll Rep bridge Bulst more cro James above p infra p b for in the  present case after the devise to Francis there be no devise at all for the  limitation to the heir of the devisor make no devise to any person certain for  if it be intend that the old son be design under the word heir of the devisor  yet the old son shall take comens er p nothing for he take by descent but it  be answer by Northey and resolve by the court that the devise to Francis give  only a estatetail and holt c j say that such be the case of hear and Allen  which differ not from the present case and if that case be good law the devise  here must give a feesimple but he be of opinion that the authority of that  case be not great be only upon the opinion of three judge against two and it  be contradict by the case cro of web and herring which be strong than the  other and that although the devise to the right heir of the devisor passes no  estate to the old son who take the reversion by descent and not the remainder  by purchase yet it be sufficient to show the intent of the devisor that the  word of the devise to Francis and his heir and for want of such heir mean heir  of his body and as the devisor say that his own right heir shall take after  the death of Francis without heir although the devisor right heir take nothing  by this devise for he take by descent yet it appear that the testator intend  that when Francis be dead without issue the old son shall take and the word  heir can have any other construction but issue because he can not die without  a heir as long as the testator have a heir and for that this case differ from  the case where the limitation for default of heir be make to a stranger this  be make to one who be the heir of the devisor judgement shall be for the  plaintiff who claim under the right heir of the devisorThe law upon this  subject be well lie down in the case of Morgan versus Griffiths Cowp in the  follow word where one devise to a and his heir general which will convey a fee  yet if there be a remainder over for want or upon failure of such heir to a  person who may take the estate as heir the word heir be restrain to heir of  the body and consequent a have only a estate tail by such devise it be  determine in the case of lee versus brace report in I ray Mod Mod Carth salk  holt that a limitation to a man and his heir even in a deed may be so explain  as to pass only a estate tail infra p