Canon's Case, 3 Leon. 5. Hebble- § 30. 1 Inst. 20 a. & b. 22 a. ante, c. 20. served on this passage, that where the words were in posterum procreandis, sons born before shall be excluded, on account of the peculiar force of the words in posterum. 16. Lord Talbot held, that where lands were limited in a deed to C. H. for life, and after his decease, to the heirs male of his body thereafter to be begotten; the words "thereafter to be begotten" did not confine it to the issue born after, but would likewise take in issue born before. 17. Littleton says, if a man has issue, and dies; and land is given to the son and to the heirs of the body of his father begotten, this is a good entail, though the father was dead at the time of the gift. Lord Coke has observed on this passage, that the words, the heirs, were observable: for if the words had been his heirs, it would have altered the case. Therefore, if lands were given to the son, and to his heirs of the body of his father; the son could not take as heir of the body of his father, because the grant was to him and to his heirs, &c. But if there were grandfather, father, and son, and the father died, and lands were given to the son, and to the heirs of the body of the grandfather, this would be a good estate tail in the son. 18. The word heir in the singular number may in a special case create an estate tail. Thus, where lands were given to a man and his wife, and to one heir of their bodies lawfully begotten, and to one heir of the body of that heir only; it was held an estate tail. 19. It has been stated, that where lands are given in the premises of a deed to A. and his heirs, habendum to him and the heirs of his body, he will only 1 Inst. 121 a. take an estate tail. And Lord Coke says, if lands are given to B. and his heirs, if B. have heirs of his body, and if he die without heirs, that it shall revert to the donor; this is an estate tail. 20. It has also been stated, that where a person, in ante, c. 20. $ 89. the premises of a deed, gives lands to another and the ĭ Inst. 21 a. heirs of his body, habendum to him and his heirs for ever, he will take an estate tail with a fee simple expectant; but if it be added, that if he dies without heirs of his body, the lands shall revert to the donor, it will be an estate tail. $31. 21. Littleton says, if lands are given to a man and his heirs males, or to a man and his heirs females, the donee will take an estate in fee simple; because the gift does not specify from what body the heirs male or female shall issue. And Lord Coke says, it 1 Inst. 27 b. was adjudged in Parliament, that where lands were given to a man and his heirs male, this was a fee simple; for the grant of a subject shall be taken most strongly against himself. Twigg, 22. A feoffment was made to the use of the feoffee Abraham v. and the heirs of his body; and for default of such Cro. Eliz. issue, to G. D. and his heirs male lawfully engen- 478. dered; and for default of such issue, to the right heirs of the feoffor. All the Judges were of opinion, that G. D. took an estate in fee; and that it could not be an estate tail, because there was not any body from whom his heir male should come. 23. But if there be any other words in a gift of this kind, from which an intention to restrain the generality of the words heirs male, to the body of the grantee, can be inferred, such gift will be construed to pass an estate tail. 24. A feoffment was made to the use of the feoffor Beresford's for life, remainder to the use of G. B. son and heir Case, 7 Rep. 41. of the feoffor, and the heirs male of his body lawfully begotten; and for default of such issue, to the use of Aden Beresford and of the heirs male of the said Aden lawfully begotten; and for default of such issue, &c. The question was, what estate Aden took. ante, ₫ 22. It was contended, upon the authority of Abraham v. Twigg, that he took an estate in fee simple. But it was resolved, that he only took an estate tail; because there were words equivalent to the words de corpore. Willes R. 374. Limitation to Heirs with a over. Plowd. 53. 541. Beck's Case, Lit. R. 344. Leigh v. 5 Mod. 266. 101. Lord Ch. J. Willes has said, that this case can hardly be cited as an authority in any case whatever : unless a deed of uses should happen to be penned exactly in the same words. 25. It is laid down by Hales, Just. arguendo, in 4 Edw. VI., that if land be given to a person and his heirs, and if the donee die without heir of his body, that it shall remain to another; this shall be a good estate tail, by the equity of the statute; although it be out of the words. And this doctrine is confirmed by several cases. 26. A feoffment was made to the use of the first son of James, who should have issue male of his body, and to his heirs; and for want of such heirs, to another. This was held to be an estate tail. 27. A feoffment was made to the use of the feoffor for life, remainder to the use of his son Thomas and his 1 Ld. Raym. heirs for ever, and for default of issue of the body of the said Thomas, to the use and behoof of the right heirs of the feoffor. The Court said, the intention of the feoffor was plain, that an estate in fee should not pass to the son. It was no more than if a gift had Idle v. Cook, 70. been made to a man and his heirs, viz. to the heirs of his body; so that it was only an estate tail. 28. In a subsequent case, where a copyhold was surrendered to the use of V. and A. his wife, pro et durante termino vitarum suarum, et hæredum et assig natorum prædictorum V. et A., et pro defectu talis exitus, to the use of the right heirs of the grantor for ever; it was held by Lord Holt, Powis and Powell, that this was an estate in fee: contrary to the opinion of Gould, who thought it should be construed an estate tail; that being the intent of the grantor. a Man and the Heirs of their Bodies. Lit. § 25. 29. Littleton says, where lands are given to a Limitation to man and his wife, and to the heirs male of their two his Wife and bodies begotten, they have an estate tail. Lord Coke, in his comment on this passage, says; but what if the tenements be given to a man and to a woman, not being his wife, and to the heirs male of their two bodies? They have also an estate tail, albeit they be not married at that time. And so it is if lands be given to a man who has a wife, and to a woman who has a husband, and the heirs of their two bodies; they have presently an estate tail, for the possibility that they may marry. 30. If lands be given to two husbands and their Tit. 18. c. 1. § 8. wives, and to the heirs of their bodies begotten, they shall take a joint estate for life, and several inheritances, viz. the one husband and his wife the one moiety, and the other husband and wife the other moiety. And no cross remainder or other possibility shall be allowed by law, where it is once settled, and has taken effect. But if lands be given to a man and two women, and the heirs of their bodies begotten, they have a joint estate for life, and every of them a several inheritance; because they cannot have one issue of their bodies. Neither shall there be, by any construction, a possibility upon a possibility; viz. that he shall marry the one first, and then the other. The same law is, where land is given to two men and one woman, and to the heirs of their bodies begotten. § 26, 7, 8. 1 Inst. 26 a. n. 3. 31. Littleton says, if lands be given to a man and his wife, and to the heirs of the body of the man; in this case the husband has an estate in general tail, and the wife an estate for life. Also if lands be given to the husband and wife, and to the heirs of the husband, which he shall beget on the body of his wife; in this case, the husband has an estate in special tail, and the wife but an estate for life. And if the gift be made to the husband and wife, and to the heirs of the body of the wife, by the husband þegotten; there the wife has an estate in special tail, and the husband but for term of life. But if lands be given to the husband and 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 the word heirs is not limited to the one, more than to the other. 32. Lord Coke has observed on this passage, that the word heirs is nomem operativum; to which of the donees it is limited, it creates an estate tail. But if it incline, no more to the one than to the other, then both do take: and therewith accords the case in 3 Edw. III., where Robertus de S. dedit Johanni de Ripariis et Matildæ uxori ejus, et hæredibus quos idem Johannes de corpore ipsius Matildæ procrearet, &c.; which was adjudged to be an estate in special 1 Inst. 219 a. tail in them both; because the estate was equally tailed to the heirs of the baron, as to the heirs of the wife. n. 3. Distinction Heirs of the upon or on 33. In conformity to the above cases, it has long been established, that where a limitation is made to the heirs of the body of the wife, by the husband to be begotten, the wife will take an estate tail. But if the words are to the heirs upon or on the body of the wife, by the husband to be begotten, both husband |