case tippin against coson approve collier v mbean Beav l r Ch but see note e r  if a in consideration of marriage and of make a feoff in fee to the use of  himself and his heir until the marriage take effect and afterward to his  intend wife for life and then to trustee and their heir during the life of the  say a to support contingent remainder and then to his first second c and so to  the ten son of his body in tail male then to his heir male by any other wife  and for want of such issue to the heir of the body of the say a and for want  of such issue to his own right heir the heir of the body of a shall take by  purchase and not by dissent S c comb SC Carth SC Hol SC ld ray in ejectment  upon the demise of Lucretia tippin a special verdict be find to this purpose  that Edward coson be seize in fee of the land in question do in the year in  consideration of a marriage then intend to he have between he and Frances try  and of a thousand pound portion c make a feoff in fee to the use of himself  and his heir until the say marriage shall take effect and afterward to Frances  his intend wife for life then to trustee and their heir during the life of  Edward to support contingent remainder then to the first second c and so to  the ten son of his body in tail male then to the heir male he shall have by  any other wife and for want of such issue then to the heir of the body of the  say Edward and for want of such issue then to his own right heir in which deed  there be a covenant to levy a fine which be levy accord to the say trustee to  the use aforesaid the marriage take effect and Edward have issue by the say  Frances a only daughter name Elizabeth who marry George tippin by who she have  issue Lucretia tippin the now lessor of the plaintiff Elizabeth die in the  lifetime of Edward coson her father be levy another fine and make a new  settlement of the land videlicet to himself for life then to his wife for life  remainder to the defendant and his heir with warranty c the question be what  estate be vest in Edward by the first settlement that be whether the heir of  his body shall take by purchase or by descent for if by purchase then the fine  which he levy afterward be no bar to they it be argue for the plaintiff that  they must take by purchase because where the ancestor have no estate for life  as in this case he have not those can be word of limitation that Edward have  no estate for life precedent to these word that if he have it must be either  modern by express limitation or by operation of law it be not by express  limitation for the estate which be limit to he be go by the marriage and then  it be immediate in the wife and he be not so much as name again but in the  limitation where the inheritance upon failure of have issue male be fix in the  heir of his body neither can any estate arise to he for life in right of his  wife by operation of law but only ex post facto videlicet after the death of  his wife the only authority which look to the contrary be the case of Fenwick  v Mitford more S c Leon S c   S c and see   light b a which be modern er p a  special verdict in ejectment upon a lease make by Anthony Mitford who be seize  in fee convey the land to the use of jasper his old son and his wife and to  the heir male of the body of the say jasper remainder to his own right heir  jasper have issue mary only and die now though Anthony have no particular  estate yet the remainder limit to his right heir be in he as his ancient  reversion and be never out of he but it do not vest in his right heir as a  remainder by way of purchase because the law create a use in he during his  life though he have depart with the whole fee till the future use shall arise  and wherever the ancestor take a estate for life be it how it will either by  express limitation or operation of law as in that case and then follow a  limitation to his right heir they shall not take by purchase but by descent  but the case be not parallel or guide by the same reason for the estate move  from Anthony Mitford so much of the use as be not limit be in he as a  reversion which be the very reason of that judgement but here Edward have  express limit all the estate to trustee during his own life and the remainder  be afterward limit to the heir of his body that must be a newcreated estate  and consequent the heir must take by purchase it be true a man can make his  own right heir purchaser by the name of heir either in a conveyance by way of  use or by his last will but he may make they so when a estate tail be give  because that be a newcreated estate different from what the law make modern as  if a feoff in fee be make to the use of the feoff for life then to the use of  his heir and of the heir male of their body the word heir here be a word of  purchaseShelleys case   b a for if it shall not then the word which follow  videlicet the heir male of their body will be void there be a resolution in  the case of Southcott v Stowell Mod b which seem to the contrary videlicet  Thomas have issue two son sir Popham his old son and William his young son  upon the marriage of his old son he covenant to stand seize to the use of his  say son and of the heir male of his body and for want of such issue to the  heir male of the body of the father remainder to his own right heir sir Popham  have issue Edward and four daughter Thomas the father die and Edward the  grandson die without issue it be argue in that case that if Thomas have any  estate it must be a feesimple upon supposition that the old use remain in he  and that William who be the heir male of the family shall not take by descent  because his father have no estate for life to support the remainder limit to  the heir male of his body and therefore it ought to go to the daughter who be  the heir general but it be adjudge that William their uncle shall take by  descent as heir male of the body of Thomas who have a estate for life as they  hold by implication and so the tail be execute in he the like resolution be in  Michael Mitfords case Mod c he have issue Robert by a first venture afterward  he marry a second wife name jane by her he have issue Ralph who have issue  Robert Michael upon his second marriage covenant to stand seize to the use of  his heir male to be beget on the body of jane reversion to his own right heir  and it be hold that Michael have a estate for life by implication Mod Bl Rep a  and the tail likewise execute in he but neither of these case come up to the  point now in question but differ very much because here the feesimple be  absolute vest in the trustee during the life of Edward so that he can not have  a estate for life either by implication or by operation of law modern a second  point be make videlicet if it shall be adjudge that they take by purchase then  whether a collateral warranty will not bar the plaintiff who be a infant but  this be not much insist on for it be general agree that the warranty can not  have any effect because it be in the case of a infant and that if she have be  of full age it will not have prevail because these collateral warranties be  not much favour in lawSee the Ann c b those who argue for the defendant make  these point first if no estate for life be express limit to he yet such a  estate he have by way of result use and second that the last limitation to he  and his heir will make such a estate as to this matter it be say that if  Edward have a estate for life by way of result use then his heir can not take  by purchase and that it be plain he have such a estate modern er p because the  reversion of the fee be not dispose by he it must necessary follow that the  use of that fee continue still in he and cause a estate for life till the  future use shall arise which estate for life be always in be be execute by the  statute of Henry c to the possession and though the limitation to his c right  heir come after the heir of his body yet that will make no alteration because  not only word but sentence may be transpose to make the deed answer the intent  of the party see do v lame burr c but admit there can not be any such  transposition by the rule of law then it be say that the limitation to the  right heir of Edward be void because it be no more than what the law will have  cast upon they without those word and that the precedent limitation videlicet  to the heir of his body shall not be take as a new create estate and different  from what he have before in the land but as the ancient use thereof which be  never separate from his person for the heir of his body be include in himself  and by consequence such a limitation must carry the use to he and this be  sufficient to create a estate for life in he as result out of the ancient fee  and therefore his heir must take by descent modern this be the very reason of  the judgement in the case of Fenwick v Mitford in which there be a solemn  resolution make upon conference with all the judge of England the authority of  which judgement have not be yet shake No man will deny that if a particular  estate for life have be limit to he by his own act and afterward to the use of  his issue in tail and for default of such issue to his own right heir but that  the reversion of that fee expectant upon the determination of the tail have be  still in he for though he have depart with the fee as Edward do to the trustee  in this case yet he do not pass away the reversion of that fee for that be  limit to his right heir now if such a limitation be not void for the reason  abovementioned then it must necessary create a use in he for life until the  future use shall happen because he can have no right heir during his own life  and my Lord coke tell we it be the same thing where the estate be create by  implication of law or by the act of the party for which way soever it be a  estate for life he have and the contingency never happen he have by that mean  a estate tail in he which be bar by the second fine agreeable to this be the  opinion of my Lord hale in a late case of the same nature Mod a he hold that  by the limitation to his own right heir no new estate be raise but the  reversion of the old estate in fee be qualify in the feoff or covenantor by  operation of law and make a estate for life in he to serve the limitation  these be his very word there be no judgement give in this case upon the first  argument but the court incline that no estate for life do arise to Edward to  support the subsequent limitation so that the fee tail be not execute in he  and by consequence the fine no barS C Carth say the whole court upon the first  argument be clear in opinion and SC holt it be adjudge without difficulty that  this be a contingent remainder and such as the heir shall take by purchase and  not by dissent and accord by SC ld ray judgement be give for the plaintiff  nisi c SC comb fearne count Rem Prec Chan b