The Orphans Legacy, Part 3 · Chapter 10
CHAP. X. Certain Caſes touching Deviſes of Land by way of Entail.
1. How Lands Deviſed by way of Entail, may happen to be deveſted out of one, and be veſted in another, upon the birth of an Iſſue in Tail.
2. Tenant in Tail may not by any Deviſe, Condition, or Limitation be Barred from Alienating by ſuffering a Common Recocovery.
3. A Difference in Point of Entail between Deviſes by Will, and Grants by Deed.
4. The ſeveral ways of Entails by Deviſe; with the difference between Deviſing Semini ſuo, and Sanguini ſuo.
5. The Queſtion whether Iſsue born or not at the time of making the Deviſe, may put a difference between an Eſtate-Tail and Joynt-Tenancy.
6. What ſhall be a Fee-ſimple by Deed, which is but an Eſtate-Tail by Deviſe.
7. In what Caſe the Younger Son may have Fee-ſimple, and the Elder but an Eſtate-Tail.
8. Otherways how an Eſtate-Tail may be Created by Deviſe.
9. Inſtances of Law for further illuſtration of Entails by way of Deviſe.
10. In what caſe the Word [Or] ſhall be taken for [And] to Create an Eſtate-Tail by Deviſe.
11. Other Caſes of Eſtates-Tail by Deviſe with Croſs-Remainders.
12. An Eſtate-Tail by Deviſe, with implyed Remainder.
13. How there may be a Deviſe of an Eſtate-Tail of Rent as well as of Land; and how a Tail limited to ſome Lands, ſhall not extend to others therewith Deviſed.
1. A Man Seiſed of Lands in Fee, Deviſed them to his Wife for life, and after to his Two Sons (if they had not Iſſue Males) for their lives; and if they had Iſſue Males, then to their Iſſue Males; and if they had not Iſſue Males, then if any of them had Iſſue Male, to the ſaid Iſſue Male: The Wife dyed; the Sons entred into the Lands; and then the Eldeſt Son had Iſſue Male, who afterwards entered; the Younger Son put out the Iſſue. In this Caſe the Lands by the birth of the Iſſue Males are diveſted out of the Two Sons, and veſted in the Iſſue Male of the Eldeſt, and he hath an Eſtate-Tail therein.aHill. 13. Jac. in B. R. Blanfords Caſe. Godbold. 266.
2. A Man Seiſed of Lands in Capite, Deviſed them to his Wife for life, and after her deceaſe his Son John to have it; and if his Son John marry, and have by his Wife any Iſſue Male of his Body Lawfully begotten, then his Son to have it; if no Iſſue Male, then his Son Thomas to have the Houſe; and if Thomas marry having Iſſue Males of his Body, his Son to have the Houſe after his deceaſe. And if any of his Sons or Iſſue Males go about to Alien or Mortgage the Houſe, then the next Heir to enter, &c. In this Caſe it was (1) Reſolved, That the Sons had an Eſtate-Tail in them ſeverally, and to the Heirs Males of their Bodies; for that theſe words [if he have no Iſſue Male his Son Thomas to have it, are ſufficient to create Tail to John, and ſo of the reſt. (2) Reſolved, That no Condition or Limitation, be it by Act Executed, or by Limitation of Uſe, or by Deviſe by laſt Will, can Bar Tenant in Tail to Alien by ſuffering a Common Recovery.bHill. 8. Jac. in the Court of Wards. Sandays Caſe. Co. 9. part. 128.
3. If a Deviſe be made of Land to A. B. and the Heirs Males of his Body, and he hath Iſſue only a Daughter, who hath Iſſue a Son, the Son ſhall not take by this Deviſe: Or if ſuch Deviſe be made to him and the Heirs Females of his Body, and he hath Iſſue only a Son, who hath Iſſue a Daughter; ſhe ſhall not take by this Deviſe. cTerms of Law. tit. Deviſe. Co. ſup. Lit. 25. Plow. 414.And here Note, That in point of Entails there is a Difference between Deviſes by Will and Grants by Deed; for if a Deviſe of Land be made to A. B. and to his Heirs Males; by this Deviſe A. B. hath an Eſtate-Tail: Otherwiſe it is if ſuch a Limitation be made by Deed; for if one by Deed give Land to another and his Heirs Males, by this the Donee hath a Fee-ſimple, and his Heirs General ſhall have it. d27. H. 8. c. 17But if a Deviſe of Land be to A. B. and to the Eldeſt Heirs Females of his Body, by this Deviſe all his Daughters, and not one of them only ſhall have it. eCoo. ſup. Lit. 27.And if a Man Deviſe his Land to his Wife for life, and after to his own right Heirs Males, and he hath Iſſue Three Daughters, whereof one after his death hath a Son: In this Caſe, and by this Deviſe the next Collateral Heir Male of the Deviſor, and not the Son of the Daughter ſhall have the Land.fTrin. 9. Jac. Adjudged Gurteis Caſe.
If a Man Deviſe his Land to A. B. and to his, or to the Heirs Males, or Heirs Females of his Body, or of his Body begotten; or to him and his Iſſues Male, or his Iſſues Female; or to him and the Heirs Male of his Body begotten on M. or to him and E. his Wife, and the Heirs Male, or the Heirs Female of their Two Bodies begotten; or to him and his Heirs, if he ſhall have any Heirs of his Body, elſe that the Land ſhall revert; or to him and his Heirs if he ſhall have any Iſſue of his Body; or to him and the right Heirs Male of his Body; or to him and his Heirs; provided that if he die without Heirs of his Body, that then the Land ſhall revert; by all theſe and ſuch like Deviſes an Eſtate Tail may be Created of the Land ſo Deviſed. gBrown. Rep. 1. part. 5. &. 2. part. 75.Likewiſe if one Deviſe his Land in Dale to A. B. & ſemini ſuo; by theſe Words A. B. hath an Eſtate Tail; But if he ſay, I give my Land in Dale to A. B. & ſanguini ſuo; it is ſaid, That by this Deviſe A. B. hath the Fee-ſimple of the Land.
5. Suppoſe a Deviſe be made thus, viz. I give my Land in Dale to A. B. for life, the Remainder to C. D. and E. his Wife, and their Children; or to them and their Men-children; or to them and their Iſſues; by theſe Deviſes (if C. D. and E. his Wife have no Children at the Time of the Deviſe) an Eſtate Tail is Created; but if they have any Children at the time of the Deviſe, then hereby is Created an Eſtate for all their lives only in Joynt-tenancy.hSheaph. Epit. c. 155. ver. Teſta. p. 960.
6. If one Deviſe his Land to his Wife for life, the Remainder to his Son; and if his Son die without Iſſue, not having a Son, that then it ſhall remain over; this is a good Eſtate Tail. iBrownl. 2. part. 270.Likewiſe if Lands be Deviſed to A. B. and his Heirs Males, or his Heirs Females, without ſaying [of his Body] by this Deviſe A. B. hath an Eſtate Tail: But if ſuch a Limitation be by Deed, it is ſaid to be a Fee-ſimple.kLit. Sect. 31. H. 6. 25. 27. 9. H. 8. 27.
7. If one having Two Sons Deviſe part of his Land to his Eldeſt Son and his Heirs, another part of his Land to his Youngeſt Son and his Heirs; and if either of them dye without Iſſue, that then the other ſhall be his Heir; by this Deviſe either of them hath an Eſtate Tail, and no Fee-ſimple. lHill. 22. Jae. B. R. Danyels Caſe.But if one Deviſe his Land to his Eldeſt Son and his Heirs, and if he dye without Heirs of his Body. that it ſhall remain to his Youngeſt Son and his Heirs; by this Deviſe the Eldeſt Son hath an Eſtate Tail, and the Youngeſt Son the Fee-ſimple.mAdjudged Mich. 9. Jac. Wallops Caſe.
8. If one Deviſe his Land to his Son W. S. and if he marry, and have an Iſſue Male begotten of the Body of his Wife, then that Iſſue to have it; and if he have no Iſſue Male, then to others in Remainder; by this Deviſe it ſeems W. S. hath an Eſtate Tail to him and the Iſſues Male begotten of the Body of his Wife. nCoo. 9. 127.Alſo if one Deviſe Long-acre to A. and then ſay, Item Broad-acre to A. and the Heirs of his Body; by this Deviſe he hath an Eſtate Tail in both Acres.oTrin. 30. Eli.
9. If one Deviſe his Land to his Wife for years, the Remainder to his Younger Son and his Heirs, and if either of his Two Sons die without Iſſue, &c. that it ſhall remain to his Daughter and her Heirs; and the Younger Son die in the life Time of the Father, and after the Father dyeth: it ſeems by this Deviſe the Elder Son ſhall have the Land in Tail. pDyer. 122.Or if one Deviſe his Land to his Wife for life, and after to his Son, and if his Son die without Iſſue, having no Son, (or having no Male) that then it ſhall go to another; by this Deviſe the Son hath an Eſtate Tail to him and the Heirs Males of his Body. qAdjudged Trin. 7. Jac. C. B. Robinſons caſe.Or if Lands be Deviſed to Man and Woman unmarried, and the Heirs of their Two Bodies; or to the Husband of A. and Wife of B. and the Heirs of their Two Bodies; by theſe Deviſes are made Eſtates in Tail.rCo. ſup. Lit. 20. 26. Plow. 35.
10. If Land be Deviſed to A. B. and the Heirs of his Body, and that if he die it ſhall reman to C. D. by this Deviſe A. B. hath an Eſtate Tail, and the latter words do not qualifie the former; but C. D. muſt attend the death of A. B. without Heirs of his Body, before he ſhall have the Land. sAdjudged 14 Eliz. Trin. 9. Jac. in B. R.Alſo if Lands be Deviſed to A. B. and the Heirs he ſhall have by C. his Wife; by this Deviſe A. B. hath a Fee-Tail, and not a Fee-ſimple. tCoo. ſup. Lit. 26.Likewiſe if one Deviſe Land to his Son and his Heirs, and that if his Son die within the Age of 21. Years, or without Iſſue, that the Land ſhall remain over: and the Son dyeth within Age having Iſſue; in this caſe, and by this Deviſe the Son hath an Eſtate Tail; and [Or] in this place ſhall be taken for [And]uAdjudged Mich. 37, 38. Eliz. Sale verſ. Gerard.
11. If a Man Deviſe his Land in this manner, viz. I give White-acre to my Son A. and his Heirs; Black-acre to my Son B. and his Heirs; and Green-acre to my Son C. and his Heirs; provided that if all my ſaid Sons die without Iſſue of their Bodies, that then all my ſaid Lands ſhall go to M. my Wife, and her Heirs; by this Deviſe they have all of them Eſtates in Tail of their Land, and as it ſeems Croſs-Remainders to either of them of the Land of each other. wMich: 18. Jac. B. R. Gilberts caſe.Alſo if one Deviſe his Land to A. B. and if he die without Iſſue Male of his Body, then that it ſhall remain over to C. D. by this Deviſe A. B. hath an Eſtate Tail.xCoo. 9. 128.
12. If a Man having Iſſue Three Sons Deviſe his Lands in this manner, viz. One part to Two of his Sons in Tail, and another part to his Third Son in Tail; and that neither of them ſhall Sell his part, but that either of them ſhall be Heir to other; by this Deviſe either of them hath an Eſtate-Tail; and if one of them die without Iſſue, his part ſhall not revert to the Eldeſt, but ſhall remain to the other Son, for it is an implyed Remainder.yLit. Broo. Sect. 1. 431. Br. Deviſe. 38. Done. 44.
13. If one Deviſe to A. B. that if he and the Heirs of his Body be not paid 20 l. Rent yearly, he and they ſhall diſtrain; by this Deviſe A. B. hath an Eſtate-Tail of this Rent. Alſo if a Man Deviſe his Mannor of D. to his Eldeſt Son, and alſo all his Lands in S. in Tail; in that caſe the Entail is limited for the Land in S. and ſhall not extend to the Mannor of D. But if the words had been [I Deviſe my Mannor of D. and all my Lands in S. to my Son in Tail,] the Son had had an Eſtate Tail in both. zAdjudged 4. Eliz. Hugh. Abrid. Deviſe.But ſuppoſe a Man Deviſeth his Lands to his Wife for Life, the Remainder to his Son in Tail; and if he die without Iſſue the Land to remain to A. B. and his Wife for their lives, and after their deceaſes to their Children. In this Caſe the Court was divided, whether the Children of A. B. had an Eſtate in Tail, or only an Eſtate for life. Mich. 40. Eliz. in B. R. Goldesb. 138.
One Deviſed all his Lands to another, and the Heirs of his Body Hill. 14. Eli. Anderſ. caſe 84. vid. caſ. 88. Ibid.begotten, and after in the ſame Will Deviſed, That if the Deviſee die, the ſaid Lands ſhould remain to another in Fee. The Court held, That the Deviſee hath notwithſtanding an Eſtate Tail by the firſt words, and no Eſtate paſs'd by the laſt words.Hill. 6. Eliz. C. B. Anderſ. caſe 110.
One Deviſed his Land to W. his Son for Term of his Life, and after his deceaſe to the Men-children of his Body; and in caſe the ſaid W. dyed without any Man-child of his Body, that then the Land ſhould remain to another, &c. The Teſtator dies; W. dies without Iſſue Male of his Body, &c. and the Queſtion was, What Eſtate he had; the Juſtices of the Bench held, that he had an Eſtate to him and the Heirs Males of his Body.
F. Seiſed of Land in Gavelkind had Three Sons, and Deviſed Mich. 13. Jac. Spark verſ. Purnell. Moo. Rep. nu. 1190.part to one, part to another, the other part to the Third, and if either of them dyed without Iſſue, the other ſhould be his Heir. It was Adjudged an Entail in each; and a Fee-ſimple by the words [Heir to other.] And ſo it was Adjudged Hill. 32. Eliz. in Carters Caſe C. B.11. H. 6. 13. b. Roll. Abrid. tit. Deviſe. Lit. K.
If a Deviſe be made to one and his Heirs, and in Caſe that he hath Iſſue a Daughter, that ſhe ſhall have the Lands. If the Deviſee hath Iſſue a Son and a Daughter, and die, the Son ſhall have the Land; and although the Daughter afterwards take a Husband, and hath Iſſue a Son, he ſhall not eject the other.