OCTOBER TERM, 1769.

Lib. D. D. No. 16. fol. 182.

#### John Paddison’s Lessee *against*Edward Oldham.

EJECTMENT for part of a tract of land called *Judith’s*Garden, lying in *Talbot*County.

At the Assises held for *Talbot*County, in April, 1768, the‘Jury found by their special verdict, that *John Paddison*was seised of the land for which the ejectment was brought, and being so seised, devised it in the words *following:*44 I give and bequeath all my lands, namely *More Field’s a*Chance, and *Judith’s*Garden, to my son *John*Paddison, 41 and to his heirs lawfully begotten, forever.” By virtue of which devise, *John*entered, and being seised thereof, had *337.issue of his body, *John Paddison,*his eldest son, who died in the life-time of his father, and left issue of his body *John Paddison,*the lessor of the plaintiff. *John Paddison,*the devisee, before his death, while he was seised of the land in question, by indenture dated the 23d of *April,*1725, conveyed the land in fee to *John Oldham,*through whom the defendant claims.

*J. Holly day,*for plaintiff.

In the creation of an estate tail, the words heirs of the body, must be mentioned expressly, or there must be words equipollent. *Co. Litt.*sect. 31. fol. 27. Wills are construed by equity, though deeds are not. 2 *Bac.*53. 56. *Gilbert’s .Devises,*17. *Plozvd.*162. Words will make an estate tail in a will, which words are not sufficient in a deed. *Co.*Litt. 27. a. 1 *Raym.*185. *Í, Bulst.*63. *Co. Litt.*8. b. The words *lirwfully begotten,*would in this case have no effect, by construing the devise to pass a fee, and such a construction should prevail as would give operation to the whole. 2 *Bulst.*123. 128. 9 *Mod.*159. If this will was read by persons unacquainted with legal reasoning, they would without hesitation pronounce it an estate tail. The words *for ever*may be answered, because an estate tail may continue For ever. 2 Stra. 849. *Law and Davis.*2d Point. That tenant in tail having made a bargain and sale in fee, the estate cannot be defeated till an entry, and he supposes it will be argued, that no entry being found on the verdict, j*he plaintiff cannot prevail, and apprehends that the case of *Machell*v. Clarke, 2 Raym. 778. will be cited; in which. *Holt*says, an *actual*entry is requisite, to which it is observed, that in cotemporary reporters, the word *actual*is not mentioned. *Salk.*619. *Com.*120, 121. and therefore no stress should be laid on this expression. As to the case of a fine where an entry is requisite, he observed that by the puissance of the fine, the whole estate was divested out of the party, and nothing was left but the right to enter. *% Stra.*1086. *Andrews,*126, 127. The estate tail by a *338bargain and sale, is not divested, but the right descends tó the issue in tail, and therefore it differs from the case of ^ fine, whereby the whole interest is divested. 3d. He argued, that admitting an entry was necessary, it is confessed by the lease, entry, and ouster, and it must be an effectual lease which cannot be without entry; further, this objection should have been made at the trial. *Far.*39.' As to finding, see 2 *Raym.*860.

*R. Goldsborough,*for defendant,

To shew that this was not an estate tail, cited *Cro. Eliz.*478. *Abraham*v. *Twigg.*2 *Raym.*1149. *Idle*v. *Cooke. Co. Litt.*20. b. Where the intent of the testator is doubtful, the will must be construed according to the legal import of the words. 6 *Co.*16. b. 1 *Salk.*238. There is no reversion over oñ this limitation, which indicates that the testator intends to give his son a fee-simple. As to the second point, the bargainee of a tenant in tail, has a base fee which continues till entry. 2 *Raym.*778. and this case is different from a determination given formerly in the case of *Holt*and Smith, which was a conveyance by tenant by the curtesy, whose interest determined with his death; but in the ease of tenant in tail, he has a durable estate.

The Court *(Stewart*and *Jenifer*present) were of opinion, that an estate in fee passed by the will of *John Paddi*son, but gave no opinion as to the other points. Judgment was entered for the defendant.

The plaintiff appealed to the Court of Appeals, in which, Court at *February*Term, 1774, the case was entered abated.