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Or, with warranty, to A. and his heirs, and if he dies without heir of his body, remainder to B. R. 1 Rol. 839. 1. 5.

Or, to A. and his heirs, and if he dies without issue of his body, to B. R. 5 Mod. 268. R. 3 Leo. 5.

So the words, of his body, are not necessary, if there are words tantamount: as, if a gift be to A. et hæredibus de carne suá. Co. L. 20. b. Or, to A. et hæredibus de se. Co. L. 20. b.

Or, to A. and the heirs male of the said A., lawfully begotten. R.

7 Co. 41.

Or, the heirs which A. de primá uxore procrearet. Co. L. 20. b. 1 Rol. 837. 1. 20.

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The heirs by A. procreatis or procreandis. Co. L. 20. b.

And procreandis extends to issues born before, as well as procreatis to issues afterwards. Co. L. 20. b.

To A. for life, and afterwards to the heirs of A. procreatis or prccreandis, and for want of such issue, to B. shall be an estate tail to A. R.1 Ch. R. 213.

So a gift to A. and his heirs, and if he dies without heir of his body, that it revert to the donor. Co. L. 21. a. (t)

So a feoffment to the use of B. and his heirs in perpetuum, and in default of issue of the body of B. to the right heirs of the feoffor; B. has only an estate tail: for the use shall be construed according to the intent. R. Carth. 343. 5 Mod. 267.

So sometimes a limitation to the heirs of the body of another, makes an estate tail: as, to A. and the heirs of the body of his father, though his father be dead. Lit. S. 30. Co. L. 27. a.

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in the premises. 8 B. 2. Feoffments, Litt. S. 721. 3 H. 6. 18. 27. 16 E. 2. Ass. 391Trin. 16 Jac. rot. 1089. Greenwood and Tyler, Hob. 314.-11. But if by deed indented or poll A. grants the manor of S. habendum to B. et hæredibus, it is good though he was not named in the premises. Hal. MSS. 12. The annotator adds, see the case of Brookes and Brookes, cited by Lord Hale, in Cro. Jac. 434., and 2 Ro. Abr. 66 67., and Vin. Abr. Grant, K. a. in which two last books there are many other cases relative to the same subject. 13. See further Co. Litt. 7. a. where Lord Coke writes, that if A. gives land to hold to B. and his heirs, it is good, though he is not named in the premises; to which Lord Hale adds, but gift in the premises to A. habendum to A. and B. is void as to B. M. 25 Eliz. Ow. vid. Co. Litt. 6. a. Plowd. Comm. 156. Throgmorton's case. Hal. MSS. — 14. He continues, see also ante, where Lord Coke describes the office of the habendum, on which Lord Hale gives the following annotation. It is not necessary to repeat the thing granted, it being sufficient that it is named in the premises. H. 44 Eliz. B. R. Hill and Giles adjudged one not named in the premises shall not take by the habendum, unless, first, in case of Frankmarriage, Litt. S. 17.; secondly, In case of grant by copy. T. 15 Jac. B. R. Brooke's case. Cro. Jac. 434; thirdly, in case of a remainder. — 15. Lease to husband and wife, habendum to the husband for ten years; the wife takes nothing. T. 31 Eliz. Mo.- 16. So lease of the site of a rectory and all tithes appertaining to it, habendum the site cum perlin. for twenty years, the tithes pass only at will. H. 28 Eliz. Mo. 222 Carye's case. 17. Grant to A. and B., habendum to A. for years, remainder to B. for years, is good; but lease of two acres to A. and B. habendum one acre to A. for years, the other to B. for years, is bad. T. 4 Eliz. Vide Hob. 172. Hal. MSS. — 18. He concludes by, see contra to this last case. Mo. 26. by Brown, arguendo. - 19. For other instances of difference between the premises and habendum, particularly where the former has beeu joint the latter several. See Mo. 43. 247. 880. Vide infra, Fait.

(4) In a note in P. Wms. 57., Lord Keeper Wright puts the case of a gift by deed to one and his heirs, and if he die without issue, remainder over, and holds, that the latter words restrain the former, and convert the fee into a tail.

VOL. IV.

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To

To the grandfather, and the heirs of the body of his son. Co. L. 20. b.

But, to the son and his heirs of the body of his father, or grandfather, is repugnant and void. Co. L. 27. a. (u)

So a gift to A. and the heirs of her body by B. her husband (then dead) begotten; though A. has it only for life, yet there shall be an estate tail to the heirs of A. by B. and it shall vest in the son of A. by B. and upon his death without issue, shall descend to his sister, as heir of the body of A. by B. Co. L. 26. b.

So an estate for life, remainder to the heirs male of the body of his grandfather; the heirs male of the grandfather all take an estate by way of remainder in tail. Per 3 J. 4. cont. Dy. 156. Dub. Cro. El. 109. 2 Leo. 25. 27. Acc. Co. L. 220. a. R. acc. Cro. Car. 24. Acc. 1 Mod. 226. 237. 2 Mod. 207.

But if A. has a son and a daughter, a gift to the daughter and the heirs female of the body of her father, is void: because she is not heir. Co. L. 26. Vide post, (B 8.)

So, by devise, an estate tail shall be created by words, which are not sufficient for it in a grant. Vide Devise, (N 5, 6.)

Or, by act of parliament. Jon. 105.

(B 4.) Tail general, what shall be.

Tenant in tail is in two manners: in tail general or special. Co. L. 19. b. Tenant in tail general is, where lands are given to a man and the heirs of his body, generally, without restriction. Lit. S. 14.

Or, to a man and the heirs male or female of his body. Co. L. 25. b.

(B 5.) Tail special, what shall be.

Tenant in tail special is, where the gift is specially restrained to some heirs of his body, and does not go to all the heirs of his body in general: as, if land be given to husband and wife, and the heirs of their two bodies. Lit. S. 16.

Or, to A. and B. (not married) and to the heirs of their two bodies, is a good tail, for the possibility of a marriage between them. Co. L. 20. b. 25. b. Vide supra, (B 3.) in notis.

Or, to the husband of A. and the wife of B. and the heirs of their two bodies. Co. L. 20. b. 1 Co. 120. Co. L. 25. b.

So, if a gift be to A. and the heirs male of his body, it is a special tail. Lit. S. 21.

25.

Or, to A. and the heirs female of his body. Lit. S. 22.

Or, to husband and wife and the heirs males of their bodies. Lit. S.

To A. and his heirs upon such a wife begotten. Lit. S. 29. (x) R. 1 And. 310.

If

(u) 1. And he takes a fee, ibid.-2. Yet gift to and his heirs of the body of B. his wife, who is dead, is tail. 12 H. 4.1. Rationem diversitatis quære, for the second son is his heir of the body of the father. Hal. MSS. Ibid. in notis.

(a) 1. It has been said, says Lord Coke, Co. Litt. ibid., that if a man give land to another and to his heirs of the body of such a woman lawfully begotten, that this is no

estate

If a gift be to husband and wife with a limitation to the heirs of their bodies equally, both have an estate tail. Co. L. 26. a.

Or, to husband and wife, and the heirs which the husband shall beget upon the body of his wife. Lit. S. 28. (y) Lane, 17.

Or, heirs upon the body of the wife by the husband begotten. R. Yel. 131. Vide infra.

Or, to the heirs of the body of the wife and of the body of the husband. R. Yel. 131.

But if it be to husband and wife, and the heirs of the body of the husband; he only has a tail, and the wife for life. Lit. S. 26, 27. (z)

Or,

estate tail for the uncertainty by whom the heirs shall be begotten, for that the brother of the donee, or other cousin, may have issue by the woman, which may be heir to the donee, and estates in tail must be certain. Therefore, that Littleton to make it plain, in all his cases added to these words 'his heirs,'' which he shall engender.' But that opinion is, since Littleton wrote, over-ruled, and that estate adjudged to be an estate tail, and begotten shall be necessarily intended begotten by the donee. - 2. So, subjoins the annotator, from Hal. MSS., gift to A. and the heirs which her husband shall beget of her body, is tail in the wife; and yet it is not said her heirs, nor heirs of her body. 41 E. 3. 24. Hal. MSS.

(y) And they have in such case the same estate, as where lands were given to them and the heirs of their two bodies begotten. Ibid. in notis.

(z) 1. But, says Littleton, s. 28., if lands be given to the husband and the wife, and to the heirs which the husband shall beget on the body of the wife, in this case both of them have an estate tail, because this word heirs is not limited to the one more than to the other.— 2. Upon which Ld. Coke observes, this word heirs is nomen operativum. To which of the donees it is limited, it createth the estate tail, but if it incline no more to the one than to the other, then both do take, as here Littleton putteth the case. And therewith accordeth the case of 3 E. 3. [32] where it appeareth quod Robertus de S. dedit Johanni de Ripariis et Matilda uxori ejus, et heredibus quos idem Johannes de corpore ipsius Matilda procrearet, &c., and this adjudged to be an estate in especial tail in them both, because the estate is equally tailed to the heirs of the baron as to the heirs of the wife. -3. To which the annotator, from Hal. MSS., subjoins, Vide Hob. c. 113. p. 84. Gift to husband and wife for their lives, and after their decease to the heirs of the body of the husband procreand' super corpus of the wife, is tail only in the husband, and the wife hath only for life; and it is the same with hæredibus of the husband de corpore of the husband on the wife procreand' Skete and Oxenbridge. -4. So Tr. 6 Jac. B. R. Repps and Bonham, land limited to husband and wife for their lives, and after their decease hæredibus of the body of the wife by the husband to be begotten; it is tail only in the wife. But it was agreed that if it had been to the heirs which the husband should beget on the body of the wife, or to the heirs of the body of the wife and of the body of the husband to be begotten; it had been tail in both. 5. 8 R. 2. Tail. 32. Gift to the husband and wife, and to the heirs of their bodies issuing, and if the wife obierit sine hæredibus, yet tail in both.-6. 12 E. 3. Variance, 77. 9 E. 3. 64. Ibid. 93. Land given to husband and wife, and to the heirs of the body of the husband, and if husband and wife, obierit sine hæredibus, into eos procreatis remainder over; yet it is tail general in the husband only.-7. Land given to the husband and wife and to the heirs of the husband of the body of his wife to be begotten; it is only tail in the husband. Hic sect. 29. Yet if gift be to the husband and wife and to the heirs of the body of the wife by the husband to be begotten, the tail is only in the wife. His heirs appropriate in the first case, of the body in the second case. Hal. MSS.-8. But where, adds the annotator, the gift is to the wife only and to the heirs of the body of the husband, then the tail is not in either, of which Ld. Hale gives the following case as an instance. -9. Nota. p. 1651 Sir Leventhorpe Franck's case. Land given to the wife for life, remainder to the heirs of the body of the husband on the body of the wife to be begotten. Ruled that is not tail executed omnino in the wife, but a contingent remainder in the heir of the husband's body, it being limited to the heirs of the husband's body; and that as the wife died in the life of her husband, the remainder was void. Hal. MSS.-10. The same case, he adds, is reported by the name of Gossage and Taylor, in Styl. 325., but there the remainder is differently expressed; for it is not to the heirs of the bodies of both in direct terms, but it is to the use of the heirs to be begotten upon the

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Or, to husband and wife, and the heirs of the body of the wife; she has an estate tail, and the husband for life. R. 2 Cro. 475. (a)

Or, to the heirs of the body of the wife by the husband begotten. Lit. S. 28. Dub. Lane, 17. Vide supra.

Or, the heirs of the body of the wife by the husband and B. begotten. Yel. 131.

Or, to husband and wife for life, and afterwards to the heirs of the body of the wife by the husband begotten. R. Yel. 131. Vide supra. Or, to the heirs of the body of the husband upon the body of the wife begotten; the husband only has the tail. R. Hob. 84.

So, if it be, to the heirs of the husband de corpore suo super corpus of the wife. Hob. 84.

So a gift to husband and wife and the heirs of the body of the survivor, gives a tail only to the survivor. Co. L. 26. a.

A gift to two husbands and their wives and the heirs of their bodies, makes a joint estate for life with several inheritances, viz. of a moiety to one husband and wife and their issue, the other moiety to the other husband and wife and their issue. Co. L. 25. b.

So a gift to B. and two women, or vice versá, makes a joint estate for life, with several inheritances to each. Co. L. 25. b.

(B 6.) Gift in frankmarriage.

A gift in frankmarriage is, when a man gives lands or tenements to a man with his daughter, or other of his blood, in frankmarriage. Lit. S. 17.

So, if a gift be to A. habendum in liberum maritagium cum filiâ suá; so that the woman is only named after the habendum. Co. L. 21. a. (b)

the body of Susannah by Leventhorpe her husband; which most probably were the words of the remainder; for Glynn's argument in favour of the wife having an estate tail, appears to have been founded upon the remainder's not pointing expressly to the heirs of either.-11. After Sir Leventhorpe Franck's case, Ld. Hale puts a quære, and then adds, v. 3 E. 3. Formedon, s. Land given to J. S. ex uxori suæ quam postea desponsaverit et hæredibus de corporibus eorum; the wife takes nothing, because not known at the time; but it is a tail in the husband. Yet nota, hæredibus de corporibus; if the wife had taken an estate, it had been a tail in both. Hal. MSS.-12. According to this case, he continues, the tail is in the husband, though the wife takes no estate, and the tail is expressly to the heirs of the bodies of both. But this is more than was contended for by the counsel for the wife's estate tail in Gossage and Taylor, who admitted the contrary to have been settled by the case in Dy. 99. pl. 64., and by Lane and Pannell, which is in 1 Ro. Rep. 238. 317. and 438.-12. See also contra, Lit. s. 352., and the case of Frogmorton, on the demise of Robinson, against Whaney, in 2 Wils. 125 and 144., where on a surrender of copyhold lands to A. whom the surrenderer intended to marry, and to the heirs of their two bodies, it was adjudged, that the wife took for life, with a contingent remainder to the heirs of the bodies of her and her husband.

(a) 1. Lit. s. 28. — 2. In pleading seisin of such an estate in husband and wife, it shall be alleged, that they were seised together and to the heirs of the body of the wife in her right, and not that they were seised of the freehold or fee tail. Per Fitzherbert, 27 H. 8. 21.b.

(b) 1. To which the annotator subjoins from Hal. MSS. this case. Dedi et concessi Johanni White in liberum maritagium Johannæ filiæ meæ habendum dicto Johanni cum hæredibus suis in perpetuum de capitali domino feodi; and warranty to him and his heirs. Ruled, that it is neither tail nor frankmarriage, but fee simple only in the husband, and nothing in the wife. M. 23 & 24 El. C. B. Webb and Porter. Vide contra 32 E. 1. Tail 25., but 45 E. 3. 20 agrees. 2. And, he adds, see acc. this same case in Ow. 26., Godb. 18. The same case is cited in Mo. 643. pl. 888. So,

So, if a gift be to A. in liberum maritagium B. filia, without saying, cum filia. R. Ow. 26.

Godb. 18.

So a gift to a woman with a son in frankmarriage is good. Co. L.

21. b.

So a gift after marriage, as well as before. Co. L. 21. b. R. Godb. 19. (c)

And a gift to a man with a widow, as well as with a virgin. Co. L. 21. b.

So the gift shall be good, though a remainder be limited to a stranger in tail, if the reversion be to the donor. Godb. 20.

Every inheritance which lies in tenure may be given in frankmarriage: As, lands and tenements, in reversion, as well as in possession. Co. L. 21. b.

A rent-service, charge, or seck. Co. L. 21. b. (d)

If a gift in frankmarriage takes effect, it shall not be destroyed, though the donor afterwards assigns the reversion. Godb. 20.

By a gift in frankmarriage, the donees have an estate in special-tail to them and the heirs of their bodies begotten, without other words. Lit. S. 17. Godb. 19.

And the donees hold freely of the donor till after the fourth degree. Godb. 19. Lit. S. 19. Vide Co. L. 21. b.

And therefore, if a rent be reserved upon the gift, it does not take effect till the fourth degree past. Co. L. 21. b. 1 Rol. 840. 1. 45. (e) But a gift without the word, frankmarriage, is not supplied by any words tantamount: As, if it be given in connubio ab omni servitio soluto. Co. L. 21. b.

So, if, liberum, only be omitted. Per Dy. Godb. 19.

So a gift in frankmarriage is not good, if it be not with some of the blood of the donor. Co. L. 21. b. Godb. 19.

Or, if it be of a thing which lies not in tenure.

Co. L. 21. b.

Or, if the tenure be not of the donor: and therefore, a gift in frankmarriage, the reversion to a stranger, passes only an estate for life. Co. L. 21. b. Godb. 20. (ƒ)

So, if the reversion was limited to themselves. Co. L. 21. b. 1 Rol. 840. 1. 50.

So, before the st. 27 H. 8. cestuy que use could not make a gift in frankmarriage; because the reversion was in the feoffees. Co. L. 21. b.

(c) Dy. 147. Co. Lit. 176. a.

(d) 1. A common. Ibid. -2. 14 E. 2. Aiel. 1. Reversion granted by two in frankmarriage. Vide 4 E. 3, 4. 26 E. 3. Tail 27. Hal. MSS. Ibid in notis. (e) 13 Hen 4. Mesne, 74. 30 Edw. 3. 24. Gift in frankmarriage salvo forinseco servitio quod; the donee shall hold in chivalry. Hal. MSS. The Annotator's notes. Ibid.

1. The passage in Ld. Coke runs thus: If lands be given to a man with a woman of the blood of the donor in liberum maritagium, the remainder in fee either to a stranger or to the donees, they have no estate tail, because there is no tenure of the donor.-2. To which the Annotator subjoins, from Hal. MSS., but see the contrary of this, Pasch. 40 Eliz. C. B. Lord Barclaye's case, n. 11.-3. And all the books here cited prove, that it is at least an estate tail, although no tenure; and it is accordingly adjudged, 17 Edw. 3. 65. Vide H. 43 El. B. R. rot. 140., between Lord Barclaye and the Countess of Warwick.-4. He adds, see S. C. in Mo. 643. Cro. Eliz. 635,and 1 Rol.. Abr. 750.; but the point of frankmarriage is not reported in the two latter books.

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