Denn v. Slater, 5 Term R. 335. Doe v. Fyldes, A devise for life may be enlarg tail. The Court resolved, that the after-born sons took several estates in tail male, in succession; as the words, for want of such issue, must be construed, for want of heirs male of the body; and that this was the true construction. 45. A person devised in these words: "I give and bequeath all my copyhold lands to my nephew Isaac Slater; but if the aforesaid Isaac Slater shall die without male heir, then my will is, that my nephew John Slater shall enter upon and enjoy the said copyhold lands, his heirs or assigns for ever: provided the aforesaid Isaac Slater paid to his wife Elizabeth the sum of 81. a year during her life, with a power of entry to the wife if the annuity was not paid." "It was contended that Isaac took a fee by reason of the annuity. I Lord Kenyon said it was clear, from all the cases on the subject, that Isaac took only an estate tail. He cited the case of Blaxton v. Stone, and Burley's case, 43 Eliz. stated by Lord Hale in 1 Vent. 230; which was a devise to A. for life, remainder to the next heir male; for default of such heir male, then to remain. Adjudged an estate tail. With regard to the other question, the law was very accurately stated by Lord Mansfield in the case in Cowper, where an estate was given generally, without adding words which would create a fee, or an estate tail, and it was charged with the payment of annuities; the devisee took a fee; but that was not the case where an estate tail was given to the devisee. 46. An express devise to a devise to a person for life may be en ed into an estate larged by subsequent words, or by a necessary implication, into an estate tail; for where an estate is devised to a person for life, with a devise over, which is not to take effect while there is any issue of the devisee for life, if there be 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 tes tator 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. 47. Lands were devised to A. for life, without waste, with a power to make a jointure; remainder to his first, second, and so to his sixth son, and no further; after which followed these words, "if A. should die without issue male of his body, then to B. in fee." This case having been sent out of Chancery to the Court of C. B., it was resolved there, that there being no limitation beyond the sixth son, and for that there might be a seventh, who was not intended to be excluded, therefore to let in the seventh and subsequent sons to take, but still to take as issue and heirs of the body of A. in tail by descent, and not by purchase, the Court held the words, "in case A. should die without issue male of his body," did in a will make an estate tail. 1 P. Wms. 173. 48. J. Sutton devised a house to his nephew Thomas Att. Gen. v. Sutton for and during the term of his natural life, and Sutton, after his death, to the first son or issue male of his body, lawfully begotten, and to the heirs male of the body of such first son; and for default of such issue, to the second son or issue male of the body of the said Thomas, lawfully to be begotten, for ever. And from and immediately after the death of the testator's wife, and of his said nephew Thomas Sutton, without issue male of his body, or after the death of such issue male, he devised all the said premises to trustees for charitable purposes. It was resolved by the Court of Exchequer, that Thomas Sutton took an estate tail by implication. On an appeal to the House of Lords it was insisted 3 Bro. Pat. on behalf of the appellants, that it was most manifestly Ca. 75. the intention of the testator, that his nephew Thomas. Sutton, who was not his heir at law, should have no greater estate than for his life only; and accordingly the estate was expressly limited to him for and during Sprrow v. 3 bro. Parl. the term of his natural life, with remainders to his sons as purchasers. That it could not be pretended there were any words in the will which in a deed could possibly have created an estate tail in Thomas Sutton : if therefore any such estate was created, it must be by implication, or presumption of the testator's intention, and not by the legal import or construction of the words themselves; but that such an implication was directly contrary to the express declaration of the testator in almost every branch of his will, as well as destructive of the charities which he intended to establish. On the other side it was argued, that under the tes tator's will, Thomas Sutton took an estate tail by impli cation, the remainder being after his death without issue male. As to the objection that the limitation after his death, without issue male of his body, was to be understood, such issue male as was mentioned in the will, viz. his first and second sons; it was answered that all the issue male which Thomas Sutton might possibly have, viz, his third, fourth, and every other son and sons, not being expressly provided for by the will, the limitation after his death without issue male, raised the same estate to him by implication, as if it had been limited to him and his issue male, in express words. The decree of the Court of Exchequer was affirmed. 49. On a trial at the great sessions for the county of Flint, the jury found a special verdict, that T. Ravenscroft had devised lands to trustees and the survivor of them, in trust for his sisters Ann and Dorothy, equally between them, during their natural lives, without committing any manner of waste: and if either of his said sisters happened to die leaving issue or issues of her or their bodies, then in trust for such issue or issues of the mother's shares, or else in trust for the survivor or survivors of them, and their respective issue or issues: and if it should happen that both his said sisters died without issue as aforesaid, and their issue or issues to die without issue or issues, then the trustees to stand seised for his kinsman John Swift, and the heirs male of his body. The court of great sessions determined that Dorothy, having survived her sister Ann, was tenant in tail of one moiety under the devise, and of the other moiety as a remainder, upon the death of her sister without issue. Upon a writ of error in the Court of K. B. Lord Ch. J. Raymond delivered the opinion of the Court, in a long and elaborate argument, that Ann and Dorothy took only an estate for life: that the word issue, in the first place, was a word of purchase, and the subsequent wards were words of limitation, and created an estate tail in such issue. Consequently the judgment of the court of great sessions was reversed. A writ of error was then brought in the House of Lords, where it was argued on behalf of the plaintiff in error, that by the words and intention of the will, the testator's two sisters, Ann and Dorothy, had an estate tail, as tenants in common, with cross remainders of their several moieties; and as Ann died without issue, Dorothy became entitled to the whole estate; for that in construction of law, a devise to one with a limitation over to another, if such first person dies without issue, creates an estate tail in that person, as well as if the devise had been to him or her, and the heirs of his or her body. For the defendant in error it was said to be a known rule in the construction of wills, that the intention of the devisor ought in all cases to be observed, if it can be, consistent with the rules of law. Now this devise was expressly to the sisters during their natural lives, with the addition of this restrictive clause, without committing any manner of waste, which showed the intent of the testator strongly, that his sisters should only have an estate for life; for if he had intended them an estate tail, he could not have restrained them from committing waste. That the next devise was to the Shaw v. Weigh, Fitzg. 7. Vide c. 14. issue of the sisters, with the limitations annexed thereto, as in the will; and it was contended for by the plaintiffs in error, that the word issue was a word of limitation, and should raise an estate tail in the sisters. But it was hoped that issue would here be construed as a word of purchase, and a designation of the persons intended to take the estate, in which case it could never extend to enlarge the estate given to the sisters for life. In a will it might sometimes be taken as a word of limitation, to answer the testator's intention, where such intention appeared manifestly from the construction of the whole will. But in the present case it was plain the testator intended that the issue of his sisters should take by purchase, and therefore he made use of the word issue as a designation of the persons who were to take; for he did not barely give the estate to the issue or issues of his sisters, but further devised it to the survivor or survivors of them, and their respective issue or issues, that is, to the issue or issues of such issue or issues as his sisters should leave; for the word survivors in the plural number was not applicable to the sisters, there being but two of them, but must relate to their issue. The first limitation therefore was to the issue of the issue, whence the first issue, to whose estate this limitation was annexed, must take by purchase. It had been objected that the word issue was nomen collectivum, and should take in all the descendants, and consequently create an estate tail in the sisters. But the word issue was only to be understood in this sense when it was a word of limitation; for it had always been taken in a different sense when it was a word of purchase. It had also been insisted on, that an estate tail should be raised in the sisters by implication, from these words, if it shall happen that both my said sisters die without issue as aforesaid, and their issue or issues to die without issue or issues, then the subsequent remainders were given. Wherever an estate tail had been raised by implication, it had been to answer the |