brown case lady Lanesborough plaintiff george fox defendant in error that  April Mews dig ten xv S c can t Talb I S on the marriage of his son b settle  land in the usual manner with the reversion in fee to himself he afterward by  his will devise these land on failure of issue of the body of b and for want  of heir male of his own body to his daughter f and the heir of her body hold  that this do not give a estate tail by implication to b and that the devise to  f be executory and void as be on too remote a contingency forester viner vol p  can Eq ab can fearne count Rem in Hilary term Mr fox bring a ejectment in the  court of exchequer in Ireland against the lady dowager Lanesborough for  several castle and land in the county of Longford to which lady Lanesborough  plead not guilty and in Michaelmas term the cause come on to be try by a  special jury at the bar of the say court who find a special verdict videlicet  that sir George lane Knt and Bart afterward Lord viscount Lanesborough be  seize in fee of the say castle and land and be so seize do in consideration of  a marriage between his son James and the say lady Lanesborough then mary  Compton and of pound marriage portion by indenture of lease and release date  the d and that of may convey the say castle and land to Thomas earl of Ossory  Richard earl of Arran Henry Lord bishop of London and sir Hugh Cholmondeley  Bart and their heir upon the trust and to the use follow videlicet that the  say James lane shall have thereout during the joint life of he and sir George  lane one annuity of pound and in case the say intend marriage shall take  effect then after the death of the say James lane that the say mary Compton  shall have and receive one annuity or yearly rend of pound for her jointure  and subject thereto to the use of the say sir George lane for his life without  impeachment of waste and then to the use of the say James lane for year to  commence from the decease of his father sir George lane if the say James lane  shall so long live without impeachment of waste and then to the use of the say  earl of Ossory earl of Arran bishop of London and sir Hugh Cholmondeley and  their heir during the life of the say James lane upon trust to support the  contingent remainder and then to the first son of the body of the say James  lane on the body of the say mary Compton to be beget and the heir male of the  body of such first son with like remainder to all other the son of the say  marriage successive in tail male and for default of such issue then to the use  of the heir male of the body of the say James lane and then to the right heir  of the say sir George lane that on the that of may the marriage be have and  the say pound pay to sir George lane brown that sir George lane then viscount  Lanesborough be seize in fee of the reversion of the say premise do on the  that of July make his will and do thereby among other thing devise in the word  follow item I will and devise the manor and town of Lanesborough and all other  the land tenement and hereditament mention or contain in the settlement make  by I on the marriage of my say son James lane with the daughter of sir Charles  Compton second brother to the late earl of Northampton on failure of issue of  the body of the say James lane and for want of the heir male of my body to my  say daughter Frances lane and the heir of her body lawful to be beget and for  want of such issue to my say daughter the lady beaufoy and mary Bingham  several and the heir of their body lawful beget or to be beget several and  respective and for want of such issue that all and every of the premise shall  be and remain to his grace James duke of Ormond and the heir male of his body  lawful beget or to be brown er p beget and in a subsequent part of his will  the testator do will and devise that if his say son James lane shall die  without issue male his the say testator wife survive he his say wife shall  hold and enjoy his house and park in Rathline and all the house land tenement  and hereditament in the county of Longford wherein he have any estate of  inheritance in possession reversion or remainder for and during her natural  life and after her decease to the several use to which the same be limit as  aforesaid and make his say wife executrix of his will that on the saint of  December the say George Lord viscount Lanesborough die so as aforesaid seize  of the same reversion of the manor town and land in the declaration mention  and have issue at the time of his death the say James his only son and heir  and two daughter namely mary and Charlotte by his first wife and the say  Frances by his second wife and no other issue male That Thomas earl of Ossory  die on the d of June and that Frances viscountess Lanesborough the widow of  George Lord Lanesborough die the saint of may in the lifetime of the say James  viscount Lanesborough that James viscount Lanesborough after the death of his  father enter upon the premise and be thereof possess and the say survive  trustee become seize of the say manor town and land in the declaration mention  by virtue of the say deed of lease and release of the d and that of may in  such manner as the law allow that the say James viscount Lanesborough and the  say earl of Arran Lord bishop of London and sir Hugh Cholmondeley the then  survive trustee by indenture of lease and release date the that and that of  October for the bar all estate tail reversion and remainder and to the end to  settle and assure the premise as therein after mention do convey to Edward  brabazon Esq and William Smythe gentleman and their heir brown among other the  manor castle and land in question to the intent and purpose that one or more  common recovery or recovery may be thereof have and suffer which say recovery  oil recovery shall be and enure to the use of the say James viscount  Lanesborough for his life without impeachment of waste and after his decease  then to the use of the lady mary viscountess Lanesborough wife of the say  James viscount Lanesborough for her life as and for a increase or augmentation  of her jointure and in bar of her dower and three at commonlaw and after her  decease then to the use of the say James viscount Lanesborough and his heir  that in Hilary term the say recovery be accord suffer in which Fergus Farrell  Esq and Edward nangle gentleman be demandant and the say brabazon and Smythe  be tenant who vouch the say James viscount Lanesborough who vouch the common  vouchee that the say James viscount Lanesborough be so possess of the manor  town and land in question do make his last will and testament date the that  October and do thereby devise to George Hooper Lord bishop of bath and well  and Hatton Compton lieutenant general and Robert dorm Esq a judge of the  common plea and James Middleton Esq and their heir all his manor land tenement  and hereditament whatsoever in the kingdom of Ireland in which he or any  person in trust for he have any estate of inheritance or other interest in  possession reversion remainder or expectance in trust nevertheless and to and  for the several use therein after express that be to say that from and after  his decease his say trustee shall stand and be seize of all the say premise in  the say county of Longford in trust for the heir of his body and for want of  such issue he do will and devise that the say trustee shall permit and suffer  his sister Charlotte lady beaufoy for and during her life to have and receive  for her own use and behoof the rend issue and profit of the farm and land of  Cooleroy barony of Rathline in the say county of Longford and after her  decease his say trustee shall permit and suffer his say wife to have and  receive to her own use the rend issue and profit of the say premise last  mention and his will be that his say trustee shall suffer his say wife from  and immediate after his decease to have and to receive to her own use all the  rend issue and profit of all the rest and residue of his say manor land and  real estate in the kingdom of Ireland for her life and after her decease he  direct that his trustee shall convey the say premise to the several use in the  say will mention videlicet to the use of John bell lane the old and only  grandson of his sister brown er p mary Bingham afterward call mary Middleton  decease for his life and after his decease to the use of his first and other  son in tail male with several remainder over and he appoint his say wife sole  executrix of his will brown that on the that of August the say James viscount  Lanesborough die possess of the manor town and land in question and without  issue that the say Frances lane daughter of the say George Lord viscount  Lanesborough and devisee in his say will marry Henry fox and by he have issue  George fox the lessor of the plaintiff her old son and heir that the say Henry  die on the that of October and the say Frances die on the that of December  leave the say George the lessor of the plaintiff her old son and heir of her  body who on the saint of September enter upon the say premise and be thereof  seize as the law direct and make the lease to the say mark Anthony Morgan as  in the declaration mention who enter upon the premise and be possess thereof  until the say mary viscountess Lanesborough enter upon the premise and eject  he but whether upon the whole matter the lady viscountess Lanesborough be  guilty of the say trespass or not the jury submit to the judgement of the  court this verdict be several time argue the court in Hilary term give  judgement for Morgan the lessee of Mr fox and pound S for damage and cost  whereupon the lady Lanesborough bring her writ of error in the exchequer  Chamber in Ireland and the matter be again several time argue the judgement be  in easter term affirm to reverse both these judgement lady Lanesborough bring  her writ of error in parliament and on her behalf it be argue c Talbot d rider  that the title of Mr fox be under the will of George viscount Lanesborough as  he be the heir of the body of Frances the daughter and devisee of Lord George  but that this title be not good in two respect I because that devise if it  ever be good to vest the estate in Frances must be of a remainder dependent on  a precedent estate tail in Lord James and consequent will be bar by the  recovery suffer by he and the survive trustee in his marriage settlement two  because if there be no estate tail precedent in Lord James the devise to  Frances be absolute void As to the former it be submit that by the devise in  the will of Lord George to his daughter Frances on failure of issue of the  body of James and for want of heir male of the body of the testator a estate  in tail general and in tail male be give to James by implication since the  daughter be plain not to take till there be a failure of all such issue of  James and of all such issue male of the testator as be include in such estate  tail and that this be agreeable to many case of estate raise by implication in  a will As to the latter suppose this not to be a devise of a estate tail by  implication Lord James as heir at law of the testator must necessary take in  the mean time till the devise to the daughter can take effect and then the  devise to her be future and not depend upon any particular precedent estate  create by the brown will or even by any settlement must be a executory devise  but as it be to take effect only on the contingency of the failure of issue of  James and of the heir male of the body of the testator it be apprehend to be  void as be too remote and tend to a perpetuity the consequence of this will be  that the whole of the testator reversion in fee descend to Lord James and  thereby not only the title of the lessor of the plaintiff fail but the  recovery and will of Lord James under which the plaintiff in error claim will  be establish and that therefore the judgement below will be reverse and a new  judgement give for lady Lanesborough with cost on the other side it be contend  p York t Lutwyche that as to the land comprise in the settlement of may Lord  James do not take by the will any great or other estate than he have by the  settlement because nothing can pass in a will by implication unless it be such  a necessary implication that no other construction can be make of the intent  of the devisor it seem plain that the testator only intend by his will to  dispose of the reversion in fee which be reserve to he by the settlement for  which reason he take notice of the settlement in his will and the estate be  thereby limit so far as to his son James for year if he so long live with  remainder to his first and other son in tail male so that James son if he have  any may enjoy it the testator intend by his will in case James shall have no  son to dispose of that reversion to his daughter Frances in tail that the  testator do not appear brown er p mind to give James a great estate than for  life in any part of his freehold estate and therefore have tie he up by the  settlement as to the land in question so in his devise to he by his will of  the land in Leitrim etcetera which be not comprise in the settlement he make  he tenant for life only with like remainder to his son as be limit in the  settlement of the other land but in the other part of his will where he intend  any thing for his son James he give it to he with express and particular word  of limitation such as to he his executor and assign or to he for his life and  after to his first son etcetera and therefore in all probability he will have  be as express here as in other part of his will if his purpose have be to give  James any further estate in these land than he will have by the settlement it  likewise seem evident from the introductory word of the subsequent clause  whereby the house and park at Rathline part of the settle estate in question  be devise to the testator son wife for life videlicet if my James shall die  without issue male my say wife survive he that he can never intend to give a  estate in tail general to James whereby the limitation of his will may be  defeat but the construction contend for by the other side be by a implication  only to enable James to defeat all the limitation of any part of the settle  estate either to the testator wife or his daughter Frances for who it appear  to have be brown his principal view to provide and therefore when the testator  in the clause in question recite the settlement whereby he have settle this  estate on his son James and his issue his say on failure of issue of the body  of the say James ought to be understand in the same manner as if he have say  on the determination of the estate limit by such settlement after hear counsel  on this writ of error and also the unanimous opinion of the judge present  touch certain point of law to they propose the question which be put to the  judge on this occasion be not insert in the lord journal but they appear in Mr  forester report of this case p it be order and adjudge that the judgement give  in the court of exchequer and the judgement give in the exchequer Chamber  affirm the same shall be reverse jour vol p