much applicable to Estates Tail as to Estates in Fee Simple.. Case, Co. Litt. 26. b. (654.) And where the gift is to the heirs of the Mandeville's body of a person who is dead, or to whom no estate of Freehold is given, so that the first heir must necessarily take by purchase, he takes an estate tail, descendible, not only to his own. issue, but to all the issue of the person first mentioned, in the same course and manner as if the estate tail had been given to that person himself. (655.) If indeed the gift were to the Co. Litt. 24. b. heirs male of the body of A., and the first person to whom an estate in tail male, if given to A. himself, would have descended, happened not to be the heir general of A. (as would be the case if he were the second son, and his elder brother had died, leaving a daughter,) it was formerly held that such a person, not being heir male in every sense of the words, could not Wills v. Palmer, take the estate by purchase, and therefore the 44; Goodtitle gift was void: but this doctrine has been con- Batl. App. to tradicted in so many particular instances, that it Fearne, C. R. is hard to say in what case it can now be sup- ever, 5 B. & C. ported. (656.) The creation of Estates Tail by Will is viewed with the same indulgence as the Devise of Estates in Fee Simple. The leading rules which have been established relative to this subject shall close the present section. (315.) Fearne, C. R. v. Burtenshaw, 570. See how 93. (283.) (657.) A Devise to A. and his seed, gives Co. Litt. 9. b. him an Estate Tail. (658.) So, to A. and his heirs male, gives an Co.Litt. 27. a. b. Hale in Harg. 4 Bac. Ab. 256. 2 Fonbl. Eq. 57. 1 Ventr. 230; Hale in Harg. Estate in Tail Male: but if this expression had been in a Deed, the word "male" must have been rejected; for, consistently with the rules of law, it can be significant only as giving a hint of intention to create an entail, which in a Deed is not sufficient.. (659.) So also it has been held that a Devise "to A. and his heirs lawfully begotten" gives. an Estate Tail. (660.) To A. and if he die before issue, or not leaving issue, or not having a son, then to another; all these devises give estates in tail, and the last in tail male. (661.) And even if the first devise be expressly to A. for life, yet if the remainder be to take effect upon his dying without issue, the implication of benefit to the issue controls the restriction; or perhaps may be said to explain it, for Tenant in Tail may to some purposes be considered as Tenant only for his life. (662.) However, though an Estate for life Co. Litt, 21., may thus be enlarged by implication into an Estate Tail, a confined or restricted Estate Tail cannot be enlarged in the same manner, nor a further Estate Tail in remainder supplied. Thus, upon a Devise to a man, and the heirs male of his body, and if he died without issue, then to another; this did not make the estate descendible to both sexes. 8 T. R. 9. (663.) To A. and his heirs, and if he die without heirs, then to B. The effect of this devise must depend on circumstances. B. will take nothing, unless he be capable of becoming. the collateral heir of A.; but if he bear that relation, it is plain that the "heirs of A.” must mean his lineal heirs, or heirs of his body. (664.) But it is to be observed that where, after giving the fee to A., the Will proceeds to dispose of it otherwise, upon his death without issue taking place within a limited period, if that period be not too remote, the ulterior disposition will be considered as an executory devise defeating the fee first given; and not as a remainder expectant upon an estate tail, (into which that fee would if necessary have been contracted for the sake of supporting such disposition.) Thus upon a devise to B. and his Pells v. Brown, heirs for ever, and if he died without issue, living A., then to 4. in fee: B. took a fee simple, subject to be defeated, in the event specified, by the executory devise to A. Cro. Jac. 590. man, 1 P. Wms. 663; But!. Fearne, C. R. (665.) It should be understood that in all Forth v. Chapquestions of this kind relating to the inheritance, the words "dying without issue," or even "without leaving issue," are taken of themselves to mean death and the want or failure of issue whenever that failure may happen; so that if a man die leaving issue surviving him, yet the subsequent extinction of his line is the fulfilment of the required event, Holmes, 1 Lev. (666.) But by a devise " to A. for life, and if Plunket v. "he shall die without issue living at his death, 11. "to B. in fee, but if A. shall have issue living 66 at his death, then to the right heirs of 4. for Wild's Case, 6 Co. 16. b.; King v. Melling, 1 Ventr. 3 Atk. 397. ever," A. is tenant for life, with a contingent remainder to himself in fee, concurrent in the alternative with the other contingent remainder to B. (667.) Upon a Devise to a person 225; and see according to circumstances. If the party have issue or children at the time when the devise is made, they will take estates, it seems, for their lives jointly with their parent; but if he had no issue at that time, he takes an estate tail. Cowp. 780; and v. Doe v. (668.) Where tenements are devised to two persons severally in tail, or the same tenement to two as tenants in common in tail, and upon failure of their issue to a third person, with an apparent intention that he should take the whole at once, Cross Remainders in tail between the two first devisees are to be implied; i. e. it is to be understood that each takes a vested remainder in tail expectant upon the other's estate. (669.) It is said that where Cooper, 1 East, these Cross Remainders are to be raised by implication between two and no more, the presumption is in favour of them; but where they are to be raised between more than two, the presumption is against them. (670.) However, in cases where land is given to several members of one family as Tenants in Common in tail, the rule seems to be applicable to them, however numerous. Thus, upon a Devise" to all "and every the children of B. begotten, if more "than one, equally to be divided among them, 229. Watson v. Foxon, 2 East, 36. "and to their heirs of their respective body "and bodies, as tenants in common; and if only one child, then to such only child, and "to the heirs of his or her body issuing, and 1 for want of such issue," then to another; Cross Remainders were implied between the children. And in a Case where the Testator gave his lands to A. for life, then to the sons of A. successively in tail, with remainder to all and every the daughter and daughters of A. in tail as tenants in common; "and for default of "such issue, then to the issue of the Testator's "Sisters, B. C. D. and E. in tail, in such man ner as he had limited the same to A.'s issue; "and for default of such issue, to remain to his own right heirs for ever:" it was decided that Cross-Remainders should be implied, not only between the daughters of each Sister in their own family, but between the families themselves of the Sisters; as the Testator did not intend his heirs (as such) to take any thing while any issue of his Sisters remained. SECT. 2. Of the Alienation of Estates Tail. (671.) THE Statute de Donis does not peremptorily annul the alienations made by Tenant in Tail, but forbids that the issue be disinherited by them; nor does it determine in what manner the disherison shall be prevented, whether by giving a right of entry to the heir, or merely by reserving to him that right of P Roe v. Clayton, 6 East, 628. (643.) (402.) |