the intervening limitations become vefted, and then they open and become separate, in order to admit fuch intervening limitations, when they arife. Cafe, §13. Thomas Bowles, in confideration of a mar- Bowles's riage, covenanted to stand feised to the use of himself 11 Rep. 79. and his wife Ann, for the term of their lives; and, after their deceases, " to the use of their first iffue "male, and to the heirs male of fuch iffue lawfully "begotten, and fo over to the fecond, third, and "fourth iffue male, &c. And for want of fuch issue "to the heirs male of the body of the faid Thomas "and Ann."-It was refolved, that, until iffue, Thomas Bowles and Ann were feifed of an eftate tail executed fub modo, that is, until the birth of issue male; and then, by operation of law, the eftates were divided and Thomas and Ann became tenants for their lives, remainder to the iffue male in tail, remainder to the heirs of Thomas; as the eftate, limited to them for their lives, was not merged. : S 14. Mr. Fearne fays, where there is a joint limitation of the freehold to feveral, followed by a joint limitation of the inheritance in fee fimple to them, as an eftate to A. and B. for their lives, or in tail, and afterwards to their heirs, fo that both limitations are of the fame quality, that is both joint, it feems the fee vests in them jointly. And fo if the limitation of the freehold be to baron and feme jointly, remainder to the heirs of their bodies, it is an estate tail executed in them; as they are capable of iffue to whom fuch joint inheritance can defcend. $ 15. If Vide Mere dith v. Leflic. Tit. 36. Of joint and tations. feveral Limi Stephens v. 2 Term Rep. Rep. 731. § 15. If the limitation of the freehold be not joint but fucceffive, as to one for life, remainder to the other for life, remainder to the heirs of their bodies, there it seems the ultimate limitation is not executed in poffeffion, but gives them a joint remainder in tail. § 16. Sir Francis Wortly, in confideration of an intended marriage with Hefter, covenanted to ftand feised to the use of himself for life, remainder to Hefter for life, remainder to the heirs males which he should beget upon the body of Hefter. It was refolved, that the estate tail was not executed, because there was an intervening remainder limited to the wife. § 17. Where an estate for life is limited to A. with a remainder to heirs of A. and B. this is a contingent remainder, and not a vefted eftate. So if there be a limitation to the wife for life, remainder to the heirs of the body of the husband and wife, this is no remainder to the wife, for the freehold is limited to her alone, and as the person who is to take in remainder must be heir of both their bodies, if the wife fhould die before the husband, there can be no one to answer that description when the particular eftate determines, because the hufband cannot have an heir during his life, nor could it be involved or flow into the limitation to the wife herself, as not being confined to her own heirs; therefore the remainder is in contingency. $ 18. If § 18. If the limitation of the inheritance be to Fearne Cont. feveral men, or to feveral women in tail, instead of Rem. 41. fee fimple, though the freehold be to them jointly, 1 Inft. 182 a. they take several eftates of inheritance, because they cannot have iffue between or among them as a man and a woman may. And the fame rule extends to other cafes, where the relative fituations of the grantees renders the poffibility of iffue between or among them more remote than what is termed a fimple or common poffibility, or else is inconfiftent with the laws of marriage. § 19. Where the particular eftate is granted to two perfons, with a limitation to the heirs or heirs of the body of one of them, the inheritance is executed in the person to whofe heirs it is limited. 8 Term R. Watkins, 516. S 20. In a modern cafe, lands were conveyed by Alpafs. lease and release, in confideration of marriage, to John Watkins for life, remainder to Sufannah Stephens his intended wife for life, for her jointure, remainder to the use of the heirs of the body of the faid Sufannab by him the faid John Watkins to be begotten, and of their heirs and affigns for ever. It was held that Sufannah Stephens took an eftate tail. S 21. Mr. Fearne obferves, that limitations of this kind are faid to be executed fub modo, that is, to fome purposes, though not to all; for though they are fo far executed in, or blended with the poffeffion, as not to be grantable away from, or without the freehold by way of remainder, yet they are not fo executed in poffeffion Both the Eftates muft be created by the fame Inftrument. Cranmer's 2 Leon. 5.7. Moor v. 1 Ld. Raym. 37 poffeffion as to fever the jointure, or entitle the wife of the perfon fo taking the inheritance to dower. § 22. The rule established in Shelley's cafe does not take place, unless the particular eftate, and the re-. mainder to the heir or heirs of the body, are created by the fame conveyance: for, by the very words of the rule, as stated in Shelley's cafe, both eftates must be created in the fame gift or conveyance. § 23. It was determined fo long ago as 16 Eliz., that if a lease was made to A. for life; remainder to the right heirs of B., and B. purchased the estate of A. the remainder would not thereby become executed : for it was not conveyed by the original grant, but by the act of another person, after the original grant. § 24. A., on the marriage of B. his fon, fettled lands to the use of B. for life, remainder to the wife of B. for life, remainder to their firft and other fons in tail, with reverfion to himself in fee. Afterwards A. devifed the fame lands to fuch iffue male as B. should have by any other wife in tail male, and, in case of failure of iffue male in B., to his grandchildren by his daughter C. in fee. B. fuffered a recovery, and died without iffue male. Holt, Chief ! Juftice, held clearly, that the devise to B.'s issue male, by any other wife, could not be tacked to the estate for life; because that was limited by another con veyance. § 25. Lord § 25. Lord Keeper Wright is reported to have faid 2 Vern. 486. refpecting this point, that, "all the authorities are "only in the affirmative; that if by the fame deed "they fhall confolidate; not negatively, that if by "different deeds, they fhall not." But there was no decree in that cafe; and this doctrine is now fully fettled, by the following determination of the Court of King's Bench: $ 26. Claude Fonnereau, by indenture made between him and his eldeft fon Thomas, in confideration of natural love and affection, granted the estate to the faid Thomas for life. Afterwards the father devised the reverfion to the heirs male of the body of Thomas. It was contended, that the rule in Shelley's cafe applied only, where both the limitations were in the fame instrument; that the court now (when the feudal reafons, for which it was introduced, had ceased) would not be inclined to extend the rule, as it tended in most instances rather to defeat, than to give effect to, the real intention of the teftator. Doe v. Fonnereau. Lord Mansfield faid, the court was unanimous in Id. 510. thinking, that the estate for life being by one inftrument, and the limitation in tail by another, they could not unite, § 27. By a fettlement made after marriage, and a fine, lands were limited to S. Morris for life, remainder to Hannah Morris for life, remainder to the first and other fons of the marriage in tail, remainder to the first and other daughters in tail, remainder to Hannah |