APRIL TERM, 1722.

#### Henry Sewell’s Lessee *against*Samuel Howard.

EJECTMENT for *Warner’s Neck*in *Anne Arundel*County.

The following case appears on the bill of exceptions, taken at the trial of the cause: *James Warner*was seised in fee of the land in dispute, and being so seised, by his last will and testament, dated' 13th February, 1673, bequeathed to his wife, *Elizabeth*Warner, “ All movable “ and immovable whatsoever he was then possessed with-a al, and after her disposing only the plantation and lands “ after her days, to his, the said *Warner’s*daughter *Johan-*“ *nah Sezvell,*and her heirs forever, and *not to be disposed*a *of to none from*them, *but his said daughter and her heirs forever.” Johannah*the devisee and heir at law of the devisor, died seised of the land so devised, leaving issue *James*her eldest son and *Henry*the second son who was the lessor of the plaintiff and survivor of his brother *James. James Sezvell,*son and heir of *Johannah,*by bargain and sale, dated the 5th of *February,*1700, conveyed the land for which the action was brought to *Philip Hozvard,*the father of the defendant.

The plaintiff’s counsel prayed the Court to direct the Jury, that the land in question was entailed on *Johannah*and her heirs in fee tail general by the will of *James Warner.*

*E>. Dulany*and *Thomas Bordley,*for plaintiff,

stated that the question was on the following words of the will of *James Warner;*“ To his daughter *Johannah Sezvell,*and *a*her heirs forever, and not to be disposed of to none from them, bpt his said daughter and her heirs forever.” Whether these words convey a fee-simple or a fee-tail-^-*46And contended that an estate tail passed by those words. That the intent in devises shall make an estate pass contrary to the rules of the common law, as applied to deeds. As if a man devise land to another after the death of his wife, she shall have an estate for life, although not given to her by express words, but by reason of the implied intent of the testator. *Plow.*414. So if lessee for years, devises the occupation of his land to his wife, for as many of the years as she shall live, and after her death the remainder of the years unexpired to his son, this shall be construed first a devise of the term to the son after the death of the wife, and afterwards a devise of the occupation of it to the wife for her life, in order that both may stand, and the intent of the testator take effect. *Plow.*523. 544. So where there was a devise by one of all his goods to his wife, and after the death of his wife, his son and heirs should have the house, notwithstanding the house was not expressly devised to the wife, yet as it was the intent of the testator that the son should not have the house during the life of his mother, therefore, by implication she should take an estate for life in the house. *Plozv.*521. So where *A.*devised to his son and his heirs after the death of his wife, and if his daughters outlive his wife, and his son and his heirs, then the daughters shall have the land for life. It was held the wife had an estate for life, by implication of the will of the devisor, and that the son hadan estate tail by implication of the words “ if the daughters “ overlive his wife and her son ¿nd *his heirs”*it being apparent that *his heirs*mean the heirs of his body, for as long as the daughters were alive he could not die without heirs *collateral. Moore,*852. PI. 1164. So where one devised his house to his brother charged with a rent, “ provi- “ ded always that the house *he not sold,*but go unto the “ next of the name and blood that are males if it may be,” it was held the clause that the tenant should not alien, proved the intention of the devisor to make it an estate tail, it being an estate which could not be legally aliened. *Dyer,*333. Vide 2 *Lilly,*13. tit. *Heir.*

*47Howard, for defendant,

contended it was an estate in fee-simple, and that the words “ *not to be disposed to none u but her*heirs,” was a condition, and upon alienation, except as restricted, the condition was broken, and cited *Cro. Eliz.*330. where there was a lease for years upon condition, he shall not devise the land, or assign over his term on devise. It was held the condition was broken. Also a ease where one had issue one son by the first venter, and two by another venter, and devised to the two sons, and “ if either of them or their heirs do sell the same, the gift “ shall be void and return to the whole heirs again.” The question was, whether it was an estate tail or a fee-simple ? It was resolved to be a fee-simple according to the intent of the will, to be construed according to the intent of the devisor, if it may be collected from the will — That it did not appear to be an estate tail by any express words- — That it was a void condition annexed to the fee, and that the word *revert*shall not make an estate tail, when it does not appear that the intent was to make an estate tail, but a condition. *Cro. Eliz. 745. Lift.*sect. 360, 361. Also 1 *Bulst. 192. 1 RolURep.*398. *436. 5 Mod. 267. Faugh. 270. Godolph.*337. were also cited.

*The Court*refused to give the directions prayed for. The plaintiff excepted.

Lib. W. G. No. 1. folio 808.

At *July*Term, 1723, the Court of Appeals reversed the judgment of the Provincial Court.

Vide Lib. H. D. folio 586.

In the case of *Samuel Howard*v. *John*Wamsley, *May*Term, 1729, the Provincial Court gave an opinion on a special verdict, on the same words of the will of *James*Warner, agreeably to the reversal of the judgment in this case.