
    John Den ex dem. David Ewan vs. John Cox.
    A. devises as follows: “ I give, bequeath and dispose of all and singular the said lands and plantation unto my wife’s son J. E., to him and his lawful begotten heir forever, and my will further is, that if the said J. E. should die without lawful begotten heir, that then 1 give and bequeath the said lands unto my brother A. E. and to liis heirs and assigns forever.” J. E. » by this devise takes an estate tail.
    This case was submitted to the court without argument upon the following state of the case agreed upon by the parties and their attornies. “ David Ewan, late of the county of Burlington, made and published his last will and testament in the words following, to wit: In the name of God, Amen. I, David Ewan of the township of Northampton, in the county of Burlington and state of West New Jersey, being at this time in good health, and of perfect sound disposing mind and mornory; therefore calling to mind the mortality of my body, and knowing that it is appointed for all men once to die, do make, constitute and ordain this my last will and testament, in writing, that is to-say, principally and first of all I recommend my soul unto-the hands of God, who gave it, and my body I recommend-to the earth to he buried in a Christian, decent burial at the discretion of my executors hereinafter named, and as touching such worldly estate wherewith it hath pleased God to-bless me with in this life — I give, devise and dispose of the same in the following form and manner: Imprimis, first— I do hereby order that all my just debts and funeral charges be fully paid and satisfied out of my personal estate as soon as it can be conveniently done after my decease. Item. I give, bequeath and devise unto my wife Sarah Ewan all and singular the residue and remainder of my personal estate whatsoever and wheresoever to be found, after said debts and funeral charges be fully satisfied, all which I give and bequeath unto my said wife and to her heirs and assigns forever. Item. I also give, bequeath, devise and dispose-unto my said wife all and singular my lands and plantation and whatsoever I now possess or that I may possess at my decease, as long as she shall remain my widow and no longer. * * * * Item. My will and mind further is, ¡that if my said wife should marry again or die,- then :at, or immediately after her marriage or decease, I give, bequeath and dispose of all and singular the said lauds, and *11] *plantation above said.unto my wife’s son Jonathan Ewan, as is so called, to him and his lawful begotten heir forever, and my will further is that if the said Jonathan Ewan should die without lawful heir, that then I give and '.bequeath the said lands unto my brother Absalom Ewan .and to his -heirs and assigns forever. And lastly, I do .hereby nominate, appoint and ordain my brother Absalom Ewan executor, and my wife Sarah Ewan executrix, to this my last will and testament. Ratifying and confirming this alone to be my last will and testament, and disannulling all former wills and testaments-or executors by me in any wise before named. In witness whereof the said David Ewan hath hereunto set his hand and seal this twenty-second day •of February, in the year of our Lord one thousand seven hundred and ninety-two. 1792.
    Signed, sealed, published and pronounced by the said David Ewan, to be his last will and testament, in the pres.ence of us,
    Jonathan Taylor,, David Ewan, [l. s.]
    Kezia Ewan, ■
    Jno. Allen.
    And having made the said last will and festament, the ■said David Ewan, afterwards, to wit: on or about the first day of May, in the year of our Lord one thousand eight hundred and six, died without altering his said will,- and the same was proved and recorded in due and lawful form..Sarah Ewan, wife of the testator, died before him. Jonathan Ewan, the devisee named in the said will upon the .decease of the testator, went into the possession of the premises devised to him in and by the said will, and occupied the same until his death, which took place on or about -the sixteenth day of August, eighteen hundred and twenty-three.
    
      Oil the twenty-first day of March, seventeen hundred and ninety-one, Jonathan Ewan, the devisee, intermarried with Charlotte, his wife, and had issue by her, David Ewan, the lessor of the plaintiff, his eldest child, who was born on the twenty-third day of November, seventeen hundred and ninety-one — After the birth of David Ewan, the lessor of the plaintiff, the following named children were born of the same marriage, to wit: Sarah, Joseph, William, Margaret, Alexander, Levi, Isaac and Eebecca.
    David Ewan, the lessor of the plaintiff, now claims to be ■entitled to the lands and plantation devised in and by the will of David Ewan, the testator,’ to the said “Jonathan Ewan and his lawfful begotten heir forever.”
    *12] *It is agreed by and between the parties aforesaid, that if the court should be of opinion that upon the foregoing state of facts the plaintiff' is entitled to recover, then that judgment shall bo entered in favor of the plaintiff .against the defendant, with six cents damages and six cents cost, otherwise for the defendant with costs. With liberty for either party to turn this state of the case into a special verdict, and bring a writ of error within two terms after the
    judgment of the Supreme Court shall be entered.
    Abraham Brown, Att’y of Plaintiff.
    
    John Neale, Att’y of Defendant.
    
   The Chief Jhstioe delivered the opinion of the court as follows:

This cause was at the last term submitted, without argument, upon a case stated. David Ewan, who died in the year 1806, by his will bearing date in the year 1792, ■ devised as follows — “I give, bequeath and dispose of all and singular the said lands and plantation unto my -wife's son .Jonathan Ewan as is so called, to him and his lawful begotten heir forever, and my will further is, that if the said Jonathan Ewan should die without lawful heir, that then I give and bequeath the said lands unto my brother Absalom Ewan and to his heirs and assigns forever.” The nature of’ the estate vested in Jonathan Ewan/who on the decease of the testator entered into possession of the premises, is the-question presented to us. If it was an estate in fee tail the plaintiff is entitled to recover.

'The objections on the part of the defendant to the creation' of an estate tail by this devise, we may presume, as they have not been stated to us, are these four, the want of' words of procreation, the word of inheritance being in the singular number, the generality of the term heir,” and the use of the word “forever.”

1. The devise does not contain the words “of the body’’ or “of his body,” usually denominated words of procreation. The only support I have found for the position that these-words are indispensable to the creation of an estate tail by devise is in the expression attributed to the court in the-case of Abraham v. Twigg, Cro. Eliz. 478, and the case of Farrington v. Darell, Year Book 9 Hen. 6, page 23. lathe former case a feoffment was made to the use of G. D. and his heirs males lawfully engendered. And the court are reported by Croke to have said: “It cannot, be an estate tail because there is not anybody from which this heir male should come, and so it is in case of a devise as appears 9 Hen. 6, pl. 25.” But *13] *Sergeant Moore in his report of this case, Moore’s-Rep. 424, states that all the justices agreed it was a fee simple and not in tail for want of mention of heirs of the body in the limitation of the use, “El n’est semble al volunt de terre.” It is not like a will of land. As Moore says he argued the case himself and it was adjudged against his argument, his report is probably to be preferred to that off Oroke who was then comparatively a young man, and had not received the dignity of the coif or been advanced to the-bench, and if so, the sanction of the court, which at best would be but an obiter dictum is not given to the necessity of thoso words in a will but rather to the contrary. In the case of Farrington v. Darrel, 9 Hen. 6, page 23, the devise was “ to the next heir male of the said It.” And Paston said “ if laud be given to a man and to his heirs males or his heirs females it is a fee simple, quod fuit concessum, but if it be given to him and to his heirs males or females of his body, &c., then he has a good tail, and as in the case at the bar the remainder was to the heirs males of the devisor and not of the body of the devisor begotten, it is a fee simple.” Whatever may have been the weight of this authority in tho reign of Henry the 6th, it is very certain that at the present day no great deference will bo paid to a case which draws the rule of construction for a will from that of a deed, or gives a certain effect to words in the former, because that effect is given to them in the latter. It was not very long however until the contrary doctrine was established, for in the year book 27, Hen. 8, pl. 11, page 27, it was held that by a devise to a man and his heirs male, the devisee will have an estate tail without further words, for the law is favorable to all devises and construes them according to the intent of the devisor, for which reason the devisee will have an estate tail, but otherwise it is of a gift made as above. And this doctrine has been since sustained in the English courts by an uninterrupted series of decisions until the present day. Church v. Wyatt, Moore 637, pl. 877; Baker v. Wall, 1 Ld. Raym. 185; Idle v. Cook, per (Powys Justice) 2 Ld. Raym. 1146; Whiting v. Wilkins, 1 Bulstr. 219; Clerk v. Day, Cro. Eliz. 213; Richards v. Bergavenny, 2 Vern. 325; Dawes v. Ferrers, 2 P. Wms. 3; Barret v. Beckford, 1 Vez. sen. 521; Nanfan v. Legh, 7 Taunton 85. It is not necessary, however, to refer to the multitude of English decisions, for the point has been settled in this court by the case of Den v. Fogg, Penn. Rep. 819. A devise “ to my son W. H. and to his male heirs ” was held to be an estate tail, *and [*14 Pennington, Justice, says, “ It has been the settled law for ■two hundred years that where one devises land to a man and his heirs male that this by construction -of law is an estate tail.”

■ 2. The devise under consideration is to his lawful begotten heir. It is nevertheless an estate tail. In. liber assisarum 39 Ed. 3 pl. 20, page 238, a devise to a man and his wife and to one heir, &c., was held an estate tail. In Whiting v. Wilkins, already cited, the testator devised unto Bobert "Whiting his youngest son forever, and after his decease the remainder to his heir male forever, with divers the like remainders in the same manner limited to the next eldest •son and to his heir male forever. Dodderidge, Justice, ■says “ to his heir male in the singular number and heirs male in the plural number are all one as to the making of .an estate tail.” Oroke says, “ it is all one to limit this to heir male and to heirs male. This word, heir, is only the :.manner of gradation and distribution.” In Clerk v. Day, Cro. Eliz. 313, “ It was agreed by all the justices that a ■devise to one and the heir of his body is an estate tail ” — ■ “ for heir, is nomen collectivum.” In Richards v. Bergavenny, 2 Vern. 325, a devise to a man for life, remainder to the heir male of his body though in the singular number is an estate tail.

3. The words of the devise before us are to him and his .lawful begotten heir;” and hence it may be argued as it has been before, that the words may be satisfied by a descent to any person lawfully begotten who is his heir, though not of his body, and therefore no estate tail has been created. But such is not the legal construction of these words. Most of the cases referred to under the first, head might be arrayed to oppose such a construction, but there are some expressly in point. Barret v. Beckford 1 Vez. sen. 521. James Pope devised to his nephew and his legitimate heirs, and' if he died without legitimate heirs, then to the family of the Popes his relations. Lord ITardwicke said, the proper construction ..of legitimate heirs, is heirs of his .body lawfully begotten, for if to him and his heirs lawfully begotten, that would be heirs of his body. In Dawes v. Ferrers, 2 P. Wins. 3, Lord Chancellor Macclesfield says “ the words heirs male [in a will, of which instrument he was speaking] must be intended heirs male of the body and would never extend to an heir male in any collateral line.”

4. The clause of the will before us contains the word “ forever.” In some positions this word has due effect in the formation of a fee simple. It is not however technical and its just influence is regulated *by its connection. [*15 In Whiting v. Wilkins, the devise was to E. W. his younger son, forever, and after his decease the remainder to his heir male forever. In Baker v. Wall, 1 Ld. Raym. 185, the devise was to D. my oldest son, to him and his heirs male forever. In Nanfan v. Legh, the words were to his son J. H. and to his heirs lawfully begotten forever. Yet in these cases the word did not prevent or impede the creation of an estate tail.

Under the devise in question I am of opinion that Jonathan Ewan took an estate in fee tail, and that judgment should be rendered for the plaintiff.

Judgment for the plaintiff.  