Fitzgerald v. Leslie, 3 Bro. Parl. Ca. 154. then to the same heirs. There seemed therefore less doubt in such a case respecting the devisor's intention, than in the ordinary case of a limitation over to a stranger, after a dying without issue by the first taker. 14. J. Leslie devised lands to the use of his eldest son John, and his heirs for ever; and failing issue of his said son John, then to the use of his second son James, and his heirs for ever; and failing issue of that son, then to the use of his third son George, and his heirs for ever; and failing issue of that son, then to the use of every other son that he should have, and their heirs for ever; and failing his issue male, then to the use of his issue female and their heirs for ever. It was determined by the House of Lords, on an appeal from the Court of Exchequer in Ireland, that according to the intention of the testator, his sons took successively estates in tail male; and that upon the death of the Willes R. 164. eldest son, leaving only a daughter, the second son took in the order of succession. Preston v. Denn v. Doe v. Wetton, infra, c, 17. 15. A will was as follows: "I give to my grandson Samuel all my meadow, &c., to hold unto the said Samuel and the heirs of his body lawfully begotten, and their heirs for ever; chargeable with the payment of 81. a year to my niece, &c. But in case the said Samuel shall die without leaving issue of his body, then I give the said meadow, &c. unto my nephew W. G." The question was, whether Samuel took an estate in fee, or an estate tail. It was contended that the testator meant the issue of Samuel should take an estate in fee; and that the devise over was in the event of Samuel's dying without issue living at the time of his death, by which means it would be an executory devise. Lord Mansfield said, the question was, whether the grandson took an estate tail, or an estate in fee. That the devise was to Samuel and the heirs of his body, and their heirs for ever; but the words, their heirs for ever, were qualified by the subsequent words, in case he shall die without leaving issue, which clearly showed it to be an estate tail; and then the testator gave it over to the lessor of the plaintiff. It was too clear to admit of a doubt. Judgment that Samuel took an estate tail. 16. I. Beech devised to his wife for life, and after her Roe v. Avis, decease to be equally divided between his four chil- 4 Term R. 605. dren, H. I. E. and S., and to each of them and their heirs for ever, share and share alike; and in case they should be minded and agree among themselves to sell the said estate, then every one of his said children should have their equal shares of monies, from thence arising; but if they consented and agreed to keep the estate whole together, then and in such case all the rents, issues, and profits thereof, from time to time, as they should become due and payable, should be equally paid and divided between his four children, and to the several and respective heirs of them, on their bodies lawfully begotten, share and share alike. The Court said, that the children of I. Beech took only esta tes tail in the respective fourths: for though it was given to them and their heirs, and they had also a power of selling the estate, by the former part of the devise; yet the subsequent words, " to the several and respective heirs of them on their bodies lawfully begotten," restrained the operation of the former words, and reduced the estate devised to an estate tail. 7 Term R. 276. 17. W. F. by will, after confirming his settlement, Doe v. Rivers, by which one part of the estate was limited to his wife for life, devised the rest of the premises to his daughter and only child Mary, on her attaining 21, and to her heirs and as to that part which was settled on his wife he devised the same to his said daughter, after the death of his widow. In case the widow should die before the daughter attained 21; then he willed that both parts of the estate should go immediately to his daughter, and her heirs for ever; but he willed that his wife should hold and enjoy both parts until his daughter should attain the age of 21; and in case his daughter Doe v. Wichelo, should die without issue, then he empowered her to dispose of the whole by will, or any other instrument in writing; and for want of such issue and direction, &c. then that the same should descend and go to his own right heirs. The Court was of opinion, that the daughter took only an estate tail. 18. A person devised to her son Richard, and her 8 Term R. 211. daughter Elizabeth, and their heirs for ever. Provided that if her said son and daughter should both have issue, then both their dividends aforesaid were to go to the issue of their own bodies: but if but one of them should have issue, then the premises should go to that issue, whether it were the child of her son or daughter aforesaid: but if they both died without issue of their bodies, then immediately to the right heir at law, and his heirs for ever. Pierson v. Tit. 16. c. 1. Or by a remainder over to a collateral heir. Fearne's Ex. Att. Gen. . Gill, The Court resolved that the devisees took an estate tail. 19. There are several cases in which words introducing remainders over, after a limitation to heirs, do not abridge or qualify the extent of the word heirs; of which an account has been given in a former title. 20. 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. But where lands are devised to a person and his heirs, with a remainder to a collateral 2 P. Wms. 369. 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 devise 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. Webb v. 21. Thus where a person devised his houses in Lon don to Francis his son, after the death of his wife; and if his three daughters or either of them should overlive their mother, and Francis their brother and his heirs, then they to enjoy the same houses for term of their lives. The principal question was, whether Francis the son had a fee, or a fee tail, by the will, in regard the limitation was, if his sisters survived him and his heirs. The Court resolved he had but a fee tail; for heirs in this place was intended heirs of his body; because the limitation being to his sisters, it was necessarily to be intended that it was, if he should die without issue of his body, for they were his heirs collateral; and therefore there was a difference where a devise was to one and his heirs, and if he died without heirs, that it should remain over, it was void, as 19 Hen. VIII. pl. 9.; yet when a devise was to one and his heirs, and if he died without heir, it should be to his next brother, there was an apparent intention what heirs he intended; and the intention being collected from the will, the law would adjudge accordingly. Forr. R. 1. 22. A testator devised lands to his wife for life, re- Tyte v. Willis, mainder to Henry his son for life, remainder to his son George and his heirs for ever, and if he died without heirs, then to his two daughters. The question was, whether George took a fee simple, or only an estate tail. And the case of Webb v. Hearing was cited, to prove that where a devise is to one and his heirs, remainder over to another, who is, or may be the devisee's heir at law, such limitation. shall be good; and the first limitation construed an entail, and not a fee, in order to let in the remainder-man; but where the second limitation is to stranger, it is merely void, and the first limitation is a fee simple. Lord Talbot said, George took an estate tail. The difference which had been taken was right; and the reason of it was, that in the latter case there was no intent appearing to make these words carry any other Pickering v. 1 Eden, 142. Goodright v. Fearne's Ex. Nottingham v. Com. R. 81. sense than what they imported at law; but in the former it was impossible that the devisee should die without an heir, while the remainder-man or his issue continued; and therefore the generality of the word heirs should be restrained to heirs of the body; since the testator could not but know that the devisee could not die without an heir, while the remainder-man or any of his issue continued. 23. 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. 24. A person having issue three sons, John, Francis, and William, devised his lands to Francis and his heirs; 1 P. Wms. 23. and for default of the heirs of Francis, to the heirs of the devisor. Ante, c. 8. Morgan v. Lewis v. Waters, 6 East, 236. Tilburgh v. Lord Holt said, that although the devise to the heirs of the devisor, passed no estate to the eldest son, who took the reversion by descent, and not the remainder by purchase, yet it was sufficient to show the intent of the devisor, that the words of the devise," to Francis and his heirs, and for want of such heirs," meant heirs of his body. And as the devisor said that his own right heir should take after the death of Francis without heirs, although the devisor's heir took nothing by this devise, for he took by descent, yet it appeared that the testator intended, that when Francis was dead without issue, the eldest son should take; and the word heirs could not have any other construction but issue, because he could not die without an heir as long as the testator had an heir. 25. T. G. devised an estate to his grandson, for and during his natural life; and after his decease, to his right and lawful heirs and assigns for ever; and for want of such lawful heirs, he gave the same to another grandson, his heirs and assigns for ever. The Court of K. B. certified to the Court of Chancery that the grandson took an estate tail. 26. But where a devise was to a person and his heirs, |