mitation it does not defeat the Eftate for Life; for without Fine or Recovery, which is not to be prefumed, an Eftate Tail is only an Eftate for Life.

As to whether the words, " heirs male of the body of A." operating as words of Purchase, will have the fame effect, and take in all the Iffue male of A. as effectually as if they operated as words of Limitation; I do admit, upon the authority of Co. Lit. and the Cafe of Southcote and Stowell, Mod. 226, 237, and Freeman's Reports, 216, 225, that when the Eftate once vests in an heir male of the body of A. by Purchase, that any other heir male of the body of A. may take by Defcent; and the reason seems to be, because it is "quafi" an Eftate Tail from A; and the Will of the Donor gives it a defcendible quality, after it is once vested, as to all the lineal male defcendants from A. as well as to all the lineal male defcendants of the first Purchaser.

But ftill it will not have the fame confequence as if they acted as words of limitation; for fuppofe A. has a fon who dies in his father's lifetime leaving daughters, and A. has other fons, they can never take at all, for the fecond brother cannot take because he is not complete heir; whereas if it was an Eftate Tail in A. it would defcend upon the fecond fon and take in all the defcendants: and it is impoffible to make it equivalent to a Limitation to the firft and every other fon, without violating and confounding the legal operation of words, and producing confequences not warranted by the Will: for upon a Limitation to the first and every other fon, the Remainders all veft the inftant the fons are born; and when a fon is of age, he may, by a Fine, bar all his iffue: but where the Limitation is "to the heir male of the body of A." no Eftate vefts till A. dies; and if there are

Dodfon

against Grew and

Others.

no

Dodfon againft

Grew and

Others.

no Trustees to preferve, &c. A. may bar the Remainders at any time after the fons are born, as well as before; and a Fine levied by his eldeft fon will not bar his iffue if he dies before the father, because the iffue will take by Purchase, and not from his father.

3dly. Which Intention ought to take place (a)?

If the Teftator had put the Iffue and Remainder-men into the power of G. GREW, it is not to be prefumed he would defeat them. If he had given Contingent Remainders to the Iffue, and they were to take by Purchase, he might defeat the Iffue before they were born. -If Estate Tail, a chance-If confined to one Iffue only, the reft had no chance ;-better to have a chance of fomething-the Remainder was of no eftimation after Estate Tail, vested or contingent, “quâcunque viâ."

But fuppofe the Question asked, "You meant a ftrict Settlement "with Trustees to preferve Contingent Remainders; but the words "will not warrant the expounding the Will in that manner. G.GREW "muft either take an Estate Tail, which will let in all his Iffue male, "but with a power of defeating them and GEORGE DODSON; or an "Eftate for Life, which will let in G. DODSON, in exclufion of the "fons of G. GREW?" His Anfwer muft have been, "I do not in"tend G. DODSON any thing, whilft there is Iffue male of GEORGE "GREW."

It was certainly the Intention of the Teftator that G. GREW's Sons fhould take in fucceffion, which they could not do, if he was only

(a) The latter part of this Cafe is rather imperfect, and feems to contain only fhort heads of Argument, which were probably filled up in the Delivery.

Tenant

Tenant for Life. I am of Opinion that he was Tenant in Tail, and that Judgment must be given for the Defendant.

Dodfon against Grew and Others.

The other Judges delivering their Opinions to the fame effect,

IN THE COMMON PLEAS.

Between JOHN DRINKWATER, Efq; Plaintiff,

AGAINST

The ROYAL EXCHANGE ASSURANCE COMPANY, Defendants.

8 Geo. III.

1767. 2 Wilson, 363. Drinkwater againft

change Affurance Company.

Mich. Term. THIS was an Action of Covenant brought against the Defendants on a Policy of Infurance, in which the Plaintiff declared that by a certain Deed, commonly called a Policy of Infurance, made by the the Royal Ex- aforefaid ROYAL EXCHANGE ASSURANCE COMPANY, IT WAS WITNESSED, That the Capital Stock, &c. of the aforefaid Corporation fhould be fubject and liable to pay, make good, and fatisfy any Lofs or Damage which fhould or might happen to a certain Malt Office by Fire, within the space of twelve calendar months from the day of the date of that Inftrument or Policy of Insurance, not exceeding the fum of £.500: Provided always nevertheless, and it was thereby declared to be the true intent and meaning of that Deed or Policy, that the said Stock Estate and Securities of the faid Corporation should not be fubject or liable to pay or make good to the Affured any Lofs or Damage by Fire which fhould happen by any "Invafion, Foreign Enemy, or any Military or Ufurped Power what

"foever:"

foever:" Provided also, that that Deed or Policy fhould not take place or be binding on the faid CORPORATION, if the faid Malt Of fice, at the time when any fuch Fire fhould happen, fhould be in the Poffeffion of, or let to any person who fhould use or exercise therein the Trade of a Sugar Baker, Apothecary, Chemist, Colourman, Diftiller, Bread or Biscuit Baker, Ship or Tallow Chandler, Stable-keeper or Inn-holder, or should be made ufe of for the ftowing or keeping of Hemp, Flax, Tallow, Pitch, Tar, or Turpentine; but that in all or any of the faid Cafes the faid Deed, and every Claufe, Article, and Thing therein contained, fhould cease, determine, be utterly void, and of none effect. And Plaintiff further faith, that the faid Malt Office in the faid Deed mentioned, on the twenty-eighth of September, in the fixth year aforefaid, was burnt, confumed, and totally destroyed by Fire, which did not happen by any " Invasion, Foreign Enemy, or any Military or Ufurped Power whatsoever;" and that the faid Malt Office, at the time when the faid Fire happened, was not in the Poffeffion of, or let to any Perfon who ufed or exercised therein the Trade of a Sugar Baker, &c.

66

66

To which the Defendants pleaded, 1ft, that they did not break the faid Covenants, nor any one of them, in manner and form as the faid Plaintiff hath above thereof complained against them, and Iffue thereon. The Defendants, for further plea, fay, that Plaintiff ought not to have or maintain his faid Action against them, because they say, that whatever Lofs and Damage above fuppofed to have happened, by the burning and deftroying the faid Malt Office by Fire, as Plaintiff hath above alleged, all fuch Lofs and Damage was caufed and did happen by means of an unlawful Attack and Invafion made on the faid Malt Office by an Ufurped Power unlawfully exercised by a

Drinkwater against the Royal Ex.

change Affurance Company.