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A Man having Issue on'y a Daughter, dies

leaving his Wife with Child of a Son, which is afterwards born; here the Son after his Birth is Heir to the Lands, but 'till then the Daughter is to have the saine. If a Man having Lands in Feesimple dieth, and his Wife soon after marries again, and pretends she is with Child by her former Hufband, in this Case the Writ Ventre infpiciendo lies for the Heir; to search her, and try it by a Jury of Women, and if found, the is to be kept in Custody 'till delivered, &c. But if a Person seised of Lands in Fee hath Issue a Daughter, who is Heir apparent, she in the Life of her Father cannot have this Writ; because it is given only to the Heir to whom the Land is descended, and the is not Heir, but Heir apparent; and the Law doth not give the Heir apparent any Writ, for it is not certain that he shall be Heir. Perk. 521. F. N. B. 227. 1 Inft. 8. Cro. Jac. 685.

At Common Law, a Man cannot be Heir to Goods and Chattels; but by Custom, Heir-Looms, as the first Bed, Table, c. go to the Heir, though they are houshold Goods. The Heir is favour'd in Law; for the Ancestor could not by the Common Law, convey away Lands or Tenements in Fee simple by Will from his Heir at Law, without Consent of the Heir: But by the Statute 32 Hen 8. of Wills, the Law is alter'd in that Point; and all Persons having a sole Estate in Feesimple of any Lands or Tenements, (except Feme Coverts, Infants, Persons Non fanæ memoria, &c.) may give and devise the same, by Last Will and Testament, at their free Will and Pleasure. A Man may not only give and grant, but may charge Feesimple Lands by Deed or Will, so as to be charged in the Hands of the Heirs: Tho' an Heir is not bound by the Bond of the Ancestor, unless he is exprefly

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expresly bound; and a Man shall never bind his Heir to Warranty, where he himself was not bound. A Grant of an Annuity must be for a Man and his Heirs, to bind the Heir, altho' there are Affets or Lands, &c. descending; and though named, an Heir shall not be bound, except there be Affets. 3 Rep. 30. 1 Inft. 386. 144., Cro. Jac. 570.

If an Heir hath Affets in Fee simple, he is chargeable upon Specialties: And a collateral Heir, may be fo charged for the Debt of his Ancestor; here if a Son happens between, who dies, he must be mentioned as Uncle and Heir of the Son, who was Heir of the Debtor, c. Also it is faid, that Debt lies against the Heir of an Heir upon an Obligation of the Ancestor, who binds himself and his Heirs, unto the tenth Degree. Where he that hath a Trust in Lands or Tenements dies, leaving a Trust in Fee-simple to descend to the Heir; this Trust will be Affets by Discent in the Heir's Hands, and be liable to the Obligation of his Ancestors: And if any Heir has made over Lands fallen to him, Execution is to be had against him to the Value of the Land, &c. Dyer 303. Cro. Car. 151. Noy 56. Stat. 29 Car. 2. 3, 4 & 5 W.

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The Word Heirs includes Assigus in Grants, Oc. And upon a Leafe for Years of Lands of Inheritance, rendering Rent to Executors and Assigns, the Heir shall have the Rent. It is held, the Words his Heirs extend unto all Heirs, the most remote, born and to be born; and under Heirs, the Heirs of Heirs are comprehended in infinitum: If Lands are given to a Man and his Heirs, all his Heirs are so totally in him, that he may give his Lands to whom he will. But if Land be given or granted

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to a Man and his * Heir in the Singular Number, and not to his Heirs in the Plural, he can have but an Estate for Life; for his Heir cannot take a Feefimple by Descent, because he is but one, and therefore. in that Cafe the Heir shall have nothing. 2 Lev. 13, 14. 1 Inst. 9.

And what is farther observable here, is the Conjunction and his Heirs; for if a Man gives Lands to one, To hold to him or his Heirs, he hath only an Estate for Life by reason of the Uncertainty. In Case a Person gives Land to two Persons, and their Heirs, such Persons have joint Estates during Life, and several Inheritances: And a Gift to one and his Children, and their Heirs, 'tis holden makes a Fee-simple to all jointly that are alive. But if a Man gives Land unto two, To have and to hold to them and Heirs, omitting their, they have an Estate but for Life, because it is uncertain as to the Heirs: And yet it is said, if Lands are given to one Man and Heirs, omitting his, that notwithstanding a Fee-fimple may pass. 1 Inft. 8. Plowd. 28. 5 Rep. 83.

If a Man gives his Land to another and his Wife, and after their Decease, the Remainder to their Children; here whether they have or have not Children at the Time, such Man and his Wife shall have only Estates for their Lives, and not the Feefimple. And if one give his Lands in Dale to J. S. for Life, and after to his next right Heir, and to his right Heirs for ever; by this J. S. hath only an Estate for Life: But if the Lands be given to J. S. for his Life, and after to the Heirs or to the

* See where the Word Heir was held by Rolle C. J. to be the same with Heirs, and to make a Fee-fimple. Styles 249, 273

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right Heirs of J.S. he will then have Fee-fimple. And in Case a Person devises Land to his Wife for her Life, and after her Death to his three Daughters, equally to be divided; and if one dies before the other, then one to be Heir to the other, equally to be divided; this last Clause gives a Fee to the Daughters. 6 Rep. 166. 1 Rep. 66. 1 Rol. Abr. 833.

Where Lands are given or granted by Fine, Deed or Will in Poffeffion, Reversion, or Remainder, to a Man and bis Heirs; it will be a Fee-fimple: So if the Gift or Grant is to him and his Heirs Males, or Females; and yet in these two last Cases, if it were by Will, it would be an Estate-tail. And with Regard to the Distinction of Heirs, if a Devise be to one for Life, Remainder to the right Heirs or Heirs Male of J. S. he must be both Heir, and Heir Male, that takes this Remainder, and the Son of a Daughter who is Heir, shall not have it: Also when Land is given to the Issues of J. S. who hath several Children, they all take; but if it be to his Heirs Male, and he hath several Sons, there but one takes. Plowd. 134. Hob. 32. Skinn. 208, 209.

If Lands are granted to A. for Life, Remainder to B. for Life, the Remainder to the right Heirs of A. here A. hath a Fee-simple Estate: And where a Gift or Grant is to a Man's Wife during Life, after to him in Tail, and after to his right Heirs; in such Case he will have a Fee-simple expectant upon the Estate-tail, as a Reversion. If Land be granted to a Man and his Heirs, tho' the Habendum of the Grant is to him for Life only, if Livery of Seifin be made, it is an Estate in Fee-simple; for the Habendum shall be rejected as repugnant and void. Broke Eft. 34, 35. 2 Rep. 91, 24.

A Lease is made to one for Term of Years, and after it is granted that the Lessee should have the Land to him and his Heirs, by the Rent of rol. a Year; if the Grantor makes Livery upon it, it is a Fee-simple: But without that, it is but an Estate for Years. If one do give or grant Lands to J. S. and his Heirs; and if he die without Heirs, that J. D. shall have the same to him and his Heirs: By this J. S. hath a Fee-simple, and J. D. will have no Estate at all. This is because nothing can be after a Fee-simple, when it is thus granted. 1 Inft. 217. Dyer 4, 33.

The Lord Coke, treating of Grants to Bodies Politick, says, if Lands be given to a sole Body Politick or Corporate, as to a Bishop, Parfon, Vicar, Master of an Hospital, &c. there to give him an Estate of Inheritance in his Politick or Corporate Capacity, he must have the Words in the Grant, To have and to hold to him and his Succeffors, without which there passeth no Inheritance; for as the Heir doth inherit to the Ancestor, so the Succeffor does succeed to the Predecessor, and the Executor to the Testator. But if a Grant or Feoffment be made to a Mayor and Commonalty, or any other Corporation Aggregate of many Persons, they have a Fee-simple without the Word Successors; by reason in Judgment of Law they never die: And so it. is where Lands are given to the King by Deed inrolled, tho' neither Successors or Heirs are named. A Man grants Lands to J. S. a natural Person, and his Successors, according to Littleton, it createth no Fee-simple in him; tho' if it be an ancient Grant it must be expounded as the Law was taken at the Time thereof; and a Devise to a Man and his Successors carries a Fee, for here Successors shall be intended Heirs. 1 Inst. 8,9. Cro. Jac. 416. 1 Roll. Abr. 835.

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