So, all his estate. R. 3 Mod. 45. R. 1 Rol. 835. 1. 5. R. Mod. Ca. 109. 1 Sal. 237. (0) Or, his whole estate, paying debts and legacies; if his personal estate be not sufficient for the debts. R. 1 Rol. 834. 1. 30. So, if he devises to A. for years, and that A. shall have the inheritance, if the law will allow it. R. Hob. 2. So, if he devises to A. for life, and afterwards, all my lands, tenements, and hereditaments not before disposed of, to B.; this gives the reversion of the lands before devised, to B. in fee. R. 2 Vent. 285. Carth. 50. R. 2 Ver. 560. Or, all the rest and remainder of my estate to B.; this gives the reversion of the lands before disposed of, and the other lands not disposed of, to B. in fee. Semb. 4 Mod. 90. 3 Mod. 228. 3 Mod. 228. R. 2 Ver. 564. R. Eq. Ca. 92. (p) (q) So, if he devises his lands in A. to one, and all other his lands, tenements, and hereditaments to his brother; also, I give to my brother all my goods, chattels, &c. and whatsoever else I have in the world, &c. these last words give him a fee. R. in C. B. T. 8 An. inter Hopewell and Ackland. (Reported Comyns's Rep. 164.) 1 Sal. 239. 2 Ver. 687. So, if he devises to A. for life, and the whole remainder to B. and, if B. dies under age, to C. and his heirs; .B. has a fee. R. Lut. 764. Or, devises the fee-simple to A. and after his death to B. for life: A. heir at law, should renounce all his right in Blackacre to C.; and because the words were all his right,' it was held to be apparent, that J. S. intended that C. should have the fee. 1 Ld. Raym. 187.-2. And where the testatrix devised to her son, all her right, title and interest, which she then had (with interposed words referrible to other property) in the Bell Tavern, (for this was the legal application of the words, as far as related to these lands,) three Judges against Holt, (who thought the words all her right,' &c. did not refer to this property,) held in K. B. that the devisee had the fee, which decision was confirmed by the exchequer chamber and house of lords. 2 Prest. 153. Ld. Raym. 831. 1 Salk. 234. R. T. Holt, 744. 1 Bro. P. C. 109. 3. The words 'all my interest in,' &c. carry a fee. 5 T. R. 292. Dougl. 763. 4. And it seems that under a devise of all my messuages at W. late the estate of A. B., and all other my part, share, and interest, of and in the estates of the said A. B.,' the word interest pervades the entire clause, and passes a fee as well in the estate at H. as the other. 5 T. R. 292. -5. See as to the words 'my half part,' 11 East. 160. 6. Quit rents. 3 M. & S. 158. 7. Implication of a fee from the devise of a smaller estate to the heir at law. 9 East. 267. 8. Implication of a fee from a devise to several to be equally divided. Lofft. 224. 9. Implication of a fee from analogy to the estate limited to a joint devisee. 3 M. & S. 523. 2 N. R. 125. — 10. Implication of a fee from analogy to the previous devise of a chattel interest. 3 M. & S. 523. — 11. Implication of a fee from a limitation over on a dying under 21. 9 East. 400.- 12. Implication of a fee from a limitation over on a dying without issue or without heirs. 3 T. R. 143. 3 Smith. 459. 16 East. 67. 2 B. & P. 324. 1 Taunt. 174. - 13. Implication of a fee from the distinctness of two clauses. 2 Mars. 415. 7 Taunt. 105.-14. Implication of a fee from rejecting the expression during their lives.' 12 East. 515. — 15. Implication of a fee from the omnipotence of a residuary over a previous clause. Cowp. 308. 16. A case where a fee passed with a partial restraint against alienation. 2 Smith, 6 East. 175. 295. -- (0) 1. The reader is referred to 2 Preston, Est. 88, &c. for a luminous exposition of the force of this term. 2. J. S. having a remainder in fee devised all his remainder; and held that the fee passed. 1 Lutw. 762. 5. But a gift of all the rest and residue, was confined to personal property, although there was, in a prior part of the will, a gift of some real property. 11 East. 160. (p) Second Part of 2 Mod. Ca. The testator by one clause of his will, devised in these words, 'I give to my son, Charles Gale, the reversion of the tenement my sister now lives in, after her decease and the reversion of those two tenements, now in the possession of Josiah Cook ;' and held that a fee passed. 2 Ves. S. 48. has has the fee after the death of B. R. Dy. 357. 2 Rol. 425. Bend pl. 293. (g) So, if he devises all his estate real and personal (r) for payment of his debts and legacies. R. Ca. Ch. 196. (s) If he devises the fee of his estate to a woman for life, and afterwards to her son generally, the son has a fee. R. 1 And. 51. If he devises Blackacre to A. for life, and all his lands not before disposed of to B., the reversion passes to B. in fee. R. 2 Ver. 461. If A. by settlement tenant for life of part, and tenant in tail of other part, the reversion of the whole to him in fee, devises all his lands and hereditaments out of settlement to his nephew; the reversion passes. R. 2 Ver. 623. (t) Vide post, (N 6.) (N 5.) What words make an estate tail. If (u) a man devises land to another and his issues; this makes an estate tail, in a will. 1 Rol. 835. l. 47. if he has no issue alive. 1 Vent. 229. (x) Or, to another and his heirs male; for the law supplies the words, of his body. Co. L. 25. b. Per 2 J. 27 H. 8. 27. a. (y) So, to another and his children, if he has no child living. R. 6 Co. 17. a. Mo. 397. To another and the fruit of his body. R. Mo. 637. (z) To A. and his heirs legitime procreatis. Mo. 637. (a) To the heirs males of the body of B. now living; the son of B. (who was the person designed to take) takes an estate tail. R. 2 Vent. 313. To A. and the heir male of his body, in the singular number. R. Cro. El. 313. Cont. if it be to the eldest issue male. R. Sav. 75. To A. and his issue male. Cro. El. 40. (g) 1 And. 51. Bendl. 300. (r) 1. Vide 18 Ves. 193. 11 East. 518. real estate. 11 East. 246. (s) As to the force of the words, property and effects, see 2 Prest. Est. 158, &c. (t) And finally, any other term or phrase of a collective import, which can, in sound interpretation, and consistently with the apparent intention of the testator, be applied to real estate, will receive a construction under which it will embrace property of that description; and whenever it comprehends real property, it will pass the fee of that property, unless there be words of restriction limiting some other estate. 2 Prest. 172. and see ibid. for examples. (u) As lands may be devised in fee, without any of those technical words which are required in deeds; so may they be devised in tail. 6 Cruise, 288. (r) 3 East, 548. And. 43. 2 Blk. 1083. 3 T. R. 373. Dough. 321. 1 East, 259. (y) 1 Ld. Raym. 185. (z) Seed; so to a man and his wife, et hæredi de corpore, et uni hæredi tantum. 1 Inst. 9. b. 1 Vent. 228. (a) 1. For, notwithstanding a devise to a man and his heirs gives him an estate in fee simple, yet if the word heirs is qualified by any subsequent words, which shew the intention of the testator, to restrain them to the heirs of the body of the devisee, the devise will in that case only create an estate tail. - 2. And, therefore the position in the text was lately confirmed, in spite of the argument, that the words lawfully begotten,' were surplusage, and equally applicable to collateral as to lineal heirs. 7 Taunt. 85. 3. Upon this last case, Mr. Cruise, in 6 vol. 290. remarks, that it is observable, that the testator had in another part of his will devised to a person and to his heirs for ever; so that the variation in the phrase imported a variation of intent.4. Lands are devised to A. & B. and their heirs, with power to sell and divide the produce; but if they did not sell, then the rents should be divided, as they became due, between them and the respective heirs of their bodies; and held that the subsequent words restrained the generality of the former, so that A. & B. took estates, not in fee but in tail. 4 T. R. 605. So, if a devise be to A. and if he dies without issue, to another; A. has an estate tail. R. 3 Mod. 123. R. 1 Rol. 837. 1. 3. Per Hale, 1 Vent. 230. (b) So a devise to A., and if he dies not having a son, &c. A. takes in tail male. Per Poph. Mo. 682. 1 Vent. 231. So, a devise to A. and if he marries and has issue male, his son shall have it; and if he has no issue male, B. shall have it. R. 9 Co. 127. So, a devise to A. for life, and then to B. and if A. and B. and his heirs die and his sister survives them, she shall have it; B. has an estate tail. R. 2 Cro. 416. (c) A devise to A. and such heir of his body as shall be living at his death, and in default of such, the remainder to another; A. has an estate tail. R. 2 Ver. 325. So, a devise to A. for life, and after his death to the heirs of his body, gives an estate tail, executed in A. R. Cart. 171. R. 2. Lev. 58. R. 1 Rol. 836.1. 50. R. Lut. 824. Sal. 679. Or, to A. for life, and after his death to the men-children of his body. R. Mo. 397. Bend. 30. Or, to A. for life, and afterwards to his heir male. Per Poph. Mo. Cart. 171. 2 Ver. 325. 397. To A. for life, and if she marries after his death and has heirs of her body, then the heirs shall have it. 1 Rol. 839. 1. 32. To A. for life, and if she mairies after his death and has an heir of her body, to such heir and the heirs of his body: and if A. dies without issue, to another: A. has an estate tail. Dub. Cro. El. 313. Cont. Mo. 593. Dub. Ow. 148, but it is badly reported. 1 Rol. 839. l. 35. 2 Rol. 417. 1. 25. To A. for life, and after his death to the heir male of his body. R. 1 Vent. 232. 2 Rol. 253. 1. 50. To A. for life, and after his death to the issue of his body by a second wife. Per Hale, but 2 J. cont. 1 Vent. 225, &c. R. in the exchequerchamber. 2 Lev. 58. 61. Pol. 111. To A. for life, remainder to the next heir male, and for default of heir male, to B. R. 1 Vent. 230. To A. for life, and afterwards to the next heir of his body for life, &c. Semb. cont. 1 Leo. 257. So a devise to A. and his heirs, and if he dies without issue, to B. gives A. but an estate tail. R. Cro. El. 525. R. 2 Cro. 290. Bridg. 1 Yel. 209. R. 2 Cro. 22. 1 Rol. 835. 1. 40. 836. 1. 17. R. Ray. 453. (d) (b) 8 Vin. Abr. 234. Vide infra. 837. (c) 1. And a devise to a person generally without any words of limitation, which of itself would create only an estate for life, may be enlarged by subsequent words, or by implication, into an estate tail. Dyer. 333. 9 Rep. 127. Cro. Jac. 448. 1 Rol. Abr. 3 Mod. 123. 1 Burr. 268. 3 Burr. 1570. 5 T. R. 335. .-2. So, as in the text, an express devise to a person for life may be enlarged by subsequent words, or by a necessary implication, into an estate tail; the doctrine being, that where an estate is devised to a person for life, with a limitation over which is not to take effect while there is any issue of the devisee for life, if there are no words in the will under which the issue can take as purchasers, the courts, in order to carry the manifest general intent of the testator into effect, have disregarded the particular intent, and by enlarging the estate devised for life into an estate tail, have let in all the issue of the first devisee. 6 Cruise, 305. 1 P. Wms. 759. Fitzg. 13. 8 Mod. 258. 1 P. Wms. 173. 3 Bro. P. C. 75. 120. 1 Burr. 38. 2 Ves. 225. 3 Bro. P. C. 80. 4 T. R. 82. 5 T.R. 299. 7 T. R. 531. 1 East, 229. 5 East, 548. (d) Vide 9 East, 382. Cro. Jac. 427. 695. 15 Ves. 564. 3 Bro. P. So, a devise to A. and his heirs, and if his sister survives him and his heirs, to the sister and fee: for it appears that it was intended, heirs of his body, for he cannot be without an heir general when his sister survives. R. 2 Cro. 416. Mo. 853. 3 Bul.. 195. 1 Rol. 836. 1. 10. Cont. per 3. J. 2. acc. Cro. Car. 58. R. acc. T. 12 W. 3. B. R. inter Nottingham and Jennings. 1 Sal. 233. (Reported Comyns's Rep. 82.) Hut. 85. So, a devise to A. and his heirs, and for want of heirs of him, to B; if it be proved that B. was his cousin. R. 3 Lev. 71. But a devise to A. and his heirs, and if he dies without an heir, to a stranger; A. has a fee. Agr. 2 Cro. 416. R. Cro. Car. 58. Dy. 4. a. Cont. Dy. 4. a. in marg. R. acc. 1 Sal. 238. (e) So, to A. and his heirs, and other land to B. and his heirs; and if B. dies without issue, living A. to A. and if both die without issue, to D. 1 Rol. 839. 1. 25. So, to A. and his heirs, paying 100l. and if he dies after the 1007. paid, without issue, to B., is a tail, and B. shall have the remainder, though A. dies before payment. R. Ray. 426. So, if a devise be to A. and the heirs of his body, and after the death of A. that his son B. shall have it; yet A. has an estate tail. R. Mo. 593. Bend. pl. 244. 1 And. 33. Or, to A. and the heirs of his body, and if he dies in the life of B. then his brother shall have it; his brother shall not have it, if A. dies in the life of B., if he does not die without issue. R. Cro. Car. 185. So, if the words be, if A. dies before he has issue during the minority of B. R. Mo. 127. (f) Or, if he dies without heirs before twenty-one, so that the estate falls to his sister. R. 2 Lev. 162. So, if a devise be to A. (his younger son) and his heirs, and if he dies without heir, to his own right heirs; A. has but an estate tail. R. 1 Sal. 233. So, if a devise be to A. and the heirs of his body by a second wife; it shall be an estate tail, though he has a wife living. I Vent. 228. · C. 154. Cowp. 410. 6 T. R. 307. 7 T. R. 276. 8 T. R. 211. 1 Eden, 424. Amb. 379. 1 Eden, 473. Amb. 385. 15 Ves. 564. 19 Ves. 73. 170. (e) 1. In consequence of the principle, that there can be no remainder limited after an estate in fee simple; where there is a devise to a person and his heirs, and if he dies without heirs, remainder to a stranger, the remainder is void, and the devisee takes an estate in fee simple. But where lands are devised to a person and his heirs, with a remainder over to a collateral heir of the first devisee, the word heirs will be construed to mean heirs of the body, and the first devisee will take only an estate tail; because the limitation over to the collateral heir plainly denotes that the testator only meant to give the lands to the lineal descendants of the first devisee; for the first devisee could not die without heirs, as long as the collateral heir, or any of his lineal descendants, were existing. 6 Cruise, 296. 2 P. Wms. 369. Fearne's Ex. Dev. 179. Cro. Jac. 415. Forr. Rep. 1. 2. And the rule is the same where the remainder is limited to the heirs of the testator himself, if such heirs must also be heirs to the first devisee. Cruise, 298. Fearne's Ex. Dev. 180. Com. Rep. 81. supra. 7 P. Wms. 23. Cowp. 234. -3. But where a devise was to a person and his heirs, and if he died without heirs, remainder to his half-brother; the devise was held by Lord Hardwicke to pass a fee; this being in fact a devise over to a stranger as the law considers him; because he could not inherit from his brother. 1 Ves. 89. (f) Hence an estate tail may be created by a will by mere implication, without any express words of devise. Vide etiam Com. R. 372. 7 Mod. 453. Willes, Rep. 369. 1 Eq. Abr. 197. Dy. 171. a. 1 Vent. 230. M 3 Το To A. and the heirs male of her body, provided that she marries and has issue male by a man of the name of S. shall be a special tail to her and her heirs male by any of that name. R. Sal. 570. So, if a devise be to A. and his heirs, and other land to B. and his heirs, and that the survivor shall be heir to the other if either of them dies without issue; A. has an estate tail. R. 2 Cro. 695. So a devise to three daughters, and if any of them die before the others, one shall be heir to the other, and if the three daughters die without issue, to B., the daughters have an estate tail. R. 1 Rol. 836. 1. 25. R. Mo. 864. Or, to two sons for life, and afterwards to their sons and their heirs, and that the one shall be heir to the other, and if both die without issue, to B. the two sons have estates tail. R. 1 Rol. 836. l. 40. So, if a man devises that land shall descend to his son, and that his executor shall take the profits till his son dies without issue, and if he dies without issue, that the whole shall remain, &c. The son has an estate tail. R. 1 Rol. 839. I. 40. So, if a devise be to A. for life, and afterwards to the heirs male of the body of A. now living, a son of A. then living, takes in tail. R. Pol. 454. 2 Vent. 313. 2 Jon. 100. So, if a devise be to A. and the heirs of his body for 500 years; it shall be an estate tail, and not a term. R. Mo. 773. R. 2 Cro. 62. 10 Co. 87. Semb. to be but a term for years, but no resolution. Cited to be a term for years. 1 Rol. 741. 1. 47. 2 Rol. 424. So, if a devise be to his wife for life, if she do not marry; but if she marries, to A. and the heirs of his body, remainder to B. the second son in tail, remainder to C. the third son in tail; A. the eldest son has an estate tail, though the wife does not marry: for the intent appears to entail the estate, and the words shall be transposed for that purpose. R, 3 Lev. 125. Ray. 428. (g) (N 6.) What not. But, if an estate be limited over after a death without issue upon a contingency, this does not make an estate tail, but an executory devise: as, if a man devises to A. and his heirs, and if he dies without issue in the life of B. to B. and his heirs; A. has a fee. and B. only a possibility. R. 1 Rol. 835. l. 45. Bridg. 3. 2 Cro. 592. R. Dy. 354. a. Vide ante, (N 4.) post, (N 7.) So, if he devises to A. and his heirs, and if he dies before marriage, or within age and without issue, then to B. R. 1 Rol. 835. l. 50. Hard. 150. If he devises to his wife, and if she has issue, to such issue, or if the issue dies within age, or before his wife, or if she has not issue, to B. the wife takes only for life. R. 2 Cro. 199. R. 2 Cro. 199. Vide post, (N 7.) A devise to a son for life, and after his death if he dies without issue then living, to a daughter; the son takes but for life. 1 Vent. 231. So a devise to A. for life, and if he has issue male, to such issue male and his heirs; and if he dies without issue male, to B. and his heirs; the issue has a fee, and not an estate tail.. R. 1. Sal. 224.. (g) 1. Where an estate is expressly devised to a person and the heirs of his body, no charge upon such estate will enlarge it to fee. Cowp. 833.-2. See, with reference to the rule in Shelley's case, 6 Cruise, 346, 1 Prest. Est. To |