daughter was tenant in tail, as heir of the body of her father, per formam doni. S 38. Mr. Fearne obferves, that this devolution, after the decease and failure of iffue male of the firft special heir of B., to other heirs equally falling within the fame description, has been stiled a descent per formam doni. But this fort of acquifition of, or fucceffion to, an estate tail, by the heirs male of the body of A. in a collateral line between themfelves, is not strictly a defcent; nor does it operate as a purchase. It is not ftrictly or completely a defcent, because the estate never attached, or by poffibility could attach in the ancestor, or be derived from or through him. It has not the effect of a purchase, because the estate goes in the fame course of fucceffion as it would have done under a descent, exclufive of persons to whom it would have gone, if the heirs male had taken abfolutely by purchase. 5 39. In a fubfequent paragraph, Mr. Fearne fays, "It seems, in truth, of a compound or intermediate "description betwixt a descent and a purchase. In К point of acquifition, it has the quality of the latter, "as not being derived from or through the ancestor. But, in regard to its courfe of devolution, it is re"ferrable to the former, as pursuing the very fame * channel of transmissive succeffion. It is a fort of "intail, which, though it first attaches in the fpecial "heir, according to the nature of the description, yet "terminates not in him and his representatives, of "the the fpecies denoted, but continues its progrefs through the whole race of heirs defcribed, in the "fame course as if it had been an eftate vested in the "ancestor, descendible from him to his heirs, of that "description:" § 40. The ufual mode of limiting eftates tail in modern conveyances, is, to the use of the first son of the body of the said A. B. on the body of the faid C. D. lawfully begotten, and the heirs male of the body of such first fon lawfully iffuing; and, for default of fuch iffue, to the fecond, third, and all and every other the fon and fons of the body of the faid A. B. on the body, &c. lawfully to be begotten, fe verally, &c. and of the feveral and refpective heirs male of the body and bodies of all and every fuch fon and fons issuing; and, for default of fuch iffue, &c. 41. In a modern cafe, there was a limitation in a feoffment to the use of Nicholas Smyth for life, remainder to the use of the first son of the body of Nicholas Smyth lawfully iffuing; and, for default of fuch iffue, to the use and behoof of the fecond, third, fourth, and of all and every other fon and fons of Nicholas Smyth lawfully iffuing, feverally and fucceffively in remainder, &c. and of the feveral heirs male of the body and bodies of all and every such son and fons refpectively iffuing, &c. Upon a cafe fent from the Court of Chancery to the Common Pleas, respecting the estate which the eldest fon of Nicholas Smyth took under this limitation, Lord Chief Juftice Eyre faid :"I think this is one of the cleareft cafes I ever faw: "there Gg 2 "there is demonstration plain on the face of the feoff 66 ment, that it was the intent of the parties that an "eftate tail fhould be limited to the eldest fon of Ni"cholas Smyth: the argument, on the part of the de"fendant, has occafionally fhifted; fometimes admit"ting the intent, but contending, that the words used "were not fufficient to effectuate that intent, which I thought was the true way of confidering the quef❝tion, and sometimes denying the intent itself. But no man can read this deed without feeing the intent "I have mentioned; though, by fome ftrange blun"der, the usual words are omitted. If, indeed, it had "stopped at the limitation to the first son of Nicholas, "I should have agreed with the counfel for the de"fendant for it certainly does not follow, that, be"cause we can fee an intent on the face of a deed, "therefore that the words ufed are fufficient to effec66 tuate that intent. But the intent here, does not "reft on the firft expreffions; but the other parts of “the deed, respecting the trusts and other limitations, "refer to an estate tail in the first fon of Nicholas 66 Smyth. The intent, then, being plain, the question "is, whether we can find fufficient words? I, for one, adhere to the rule, which forbids the raising "eftates by implication in deeds; and think that we 66 ought not to grant the fame indulgence to inaccuracy "in the conftruction of deeds, as we do in wills. "But, here, it is not neceffary to refort to implica❝tion, or to enquire whether the fame latitude is to "be allowed to conveyances to ufes, as to wills: for, "here, there are strict technical words, capable of 66 being applied to the limitation of the first fon of the body body of Nicholas Smyth, fo as to give him an eftate "tail. The limitation is to the first fon; and, for de"fault of fuch iffue, the whole line of fons is taken in, without any particular limitation to them and "the heirs of their bodies nominatim; but it is "to "the feveral heirs male of the body and bodies of all "and every fuch fon and fons refpectively iffuing." cr Fortunately it is not said, " to the heirs male of the body and bodies of fuch fecond, third, and other "fons, &c." If it had been fo, it could not, perhaps, have been got over. But the limitation is to "the heirs male of the body and bodies of " every fuch fon." Now, the cafe of Doe v. Martin, is an Ante f. "authority to warrant the application of thofe words to the limitation of the first son of Nicholas Smyth, as well as to the others. But this cafe is ftronger ❝than Doe v. Martin: for it does not even require "the affiftance of punctuation. Upon the whole, "therefore, it is clear, that the plaintiff took an "eftate tail under the limitation in the deed to the "firft fon of the body of Nicholas Smyth." The certificate accordingly stated, that the plaintiff took an estate in tail male, in the lands in question. $ 42. With respect to the words which are necef- What Words fary to create an estate for life, thofe ufually inferted create an Eftate for for that purpose, are-to hold to the faid A. B. and Life. his affigns, for and during the term of his natural life. But it has been already obferved, that if a feoff- Ante ch. 23 ment be made to a natural perfon, without any words of limitation whatever, the feoffee will take an estate Tit. 3. f. 5 f. What Words tenancy. Tit. 18. ch. 1. for his own life, unless the feoffor be only tenant in tail, or tenant for his own life, in which cafes the feoffee will take an eftate for the life of the grantor only. S43. With refpect to the words which are necef create a Joint- fary to create a joint-tenancy, it has been already ftated, that where lands are granted to two or more perfons, to hold to them and their heirs, or for term of their lives, or for term of another's life, without any restrictive, exclufive, or explanatory words, all the perfons named in fuch inftrument, to whom the lands are fo given, take an eftate in joint tenancy. f. 3. Ward v. Staples v. Ca. 580. S 44, Sir Robert Car granted an annuity or annual rent of 100l. to five perfons for their lives, and the life of the furvivor, to be equally divided among them, viz. 20 l. for each of them during their lives, and after that the first of them fhould die, that her part should be divided equally among the furvivors. It was refolved that this was a joint-tenancy. $ 45. Sir Robert Staples covenanted in confideration of marriage, to lay out 2000 l. in the purchase of lands of inheritance, to be fettled to the use of himfelf for life, remainder to his intended wife for life, remainder to the use of their heirs of both their bodies. And covenanted that the leafes for years, whereof he was then poffeffed, fhould be to the use of himself for life, and after his decease to the use of and in truft for the children of the faid Sir Robert, begotten on the body of his faid intended wife. It |