
    Elwell vers. Pierson.
    
      (From Essex.) ()
    Devise of Land as follows: “To my Son S. and his Heirs forever, provided that my said Son shall maintain Myself and his Mother during our Lives with sufficient and convenient Maintenance.” Afterwards: “Also whereas it is expressed that my Son shall have this my Living to him and his forever, my Will and Meaning is, and I do hereby appoint my Grandson R., Son of said S., to be the next immediate Heir unto this my Living after his Father, to enjoy the same to him and his Heirs forever. And in Case that said R. do die without Heir, it shall then fall to the next eldest of my Grandsons surviving, and so in like Case of Mortality, one from another to the next eldest of my Grandsons surviving.” Held, that S. took an Estate in Fee Simple.
    
      THE Question in this Case was, whether Samuel, Son of the original Devisor, took an Estate Tail, and if he did, whether the Plaintiff is sole Heir in Tail of Samuel, being eldest Son of eldest Son all along.
    1763.
    
      It seems, that but for the Charge of Maintenance, S. would have taken an Estate Tail.
    The Words of the Will are these: “I give to “Samuel Elwell the House I now live in,” &c.
    Afterwards: “I give all my said Housing &c. “expressed, to him my said Son Samuel, and his “Heirs forever, provided that my said Son shall “maintain Myself and his Mother during our Lives “with sufficient and convenient Maintenance.”
    Afterwards: “Also whereas it is above expressed “that my Son Samuel shall have this my Living “above said to him and his forever, my Will and “Meaning is, and I do hereby appoint my Grand-“son Robert, Son of said Samuel, to be the next “immediate Heir unto this my Living after his “Father, my said Son Samuel, to enjoy the same to “him and his Heirs forever. And in Case that said “Robert do die without Heir, it shall then fall to “the next eldest of my Grandsons surviving, and so “in like Case of Mortality one from another to the “next eldest of my Grandsons surviving.”
    
      Mr. Thacher for the Tail.
    
    It is objected that there were but two Witnesses to the Will. At that Time the Law required but two. The Statute of Frauds was never supposed to extend here, till we made a like Law here. () Vid. Old Colony Laws, 158. () The Question is, whether Samuel took an Estate Tail, by the Words of the Will. Great Condescension is given to Wills, and Words, which in Acts executed in the Lifetime would not make Estates Tail, will make them in Wills, because Testators are supposed to be inops consilii, and Lord Holt observes that there were no such Conveyances at Common Law, but by Statute. The Testator's Intent is to be the Rule of Construction, if agreeable to Rules of Law. The first Devise is an Inheritance; then he explains his Grandson Robert to be the next immediate Heir of his said Son Samuel; he does not retract, but only directs how that Inheritance shall go. The Intent appears from this also—He says, the next eldest Brother shall inherit for want of Heirs; now he could not die without Heirs, while he had any Brothers, whence it appears he excluded Brothers from his Idea of Heirs in this Case, and so could only mean Heirs of the Body. There is a Difference between the Remainder over being given to a Stranger, and to one of Kin; in the first Case it cannot be explanatory of what Heirs are meant; in the last it is. 9 Co. 128, Sonday’s Case. Cro. Ja. 415, Webb & Hearing. Id. 448, King vs. Rumball. Id. 695, Chaddock vs. Cowley. 1 Ld. Raym. 569, Nottingham vs. Jennings. Comyns, 539, Brice vs. Smith. Ld. Talbot, 1, Tyte vs. Willis.
    
    The only Question remaining is, whether this Estate Tail first vested in Samuel the Son, or Robert the Grandson; I think in Samuel, first, because Samuel had an Inheritance by the first Words; Secondly, because the Testator appoints Robert his next immediate Heir; this is surely showing how the Inheritance shall be limited, and it is as it would be limited by Law, supposing it an Estate Tail. The Inheritance of Samuel shall by no means be taken away, if the Will can be construed otherwise, as in this Case the Words do not make an Estate for Life only, but a Limitation.
    
      Mr. Gridley.
    
    The Question is, whether Samuel took a Fee Simple or Tail; the first Words of the Will give him a Fee, but afterwards say Robert shall be his Heir: We all agree as to the Fee—we say the other Words shew the Intent. If Samuel had a Fee, he could convey it, and Robert would not be his Heir; in the second Place, every Word shall be operative if possible; whereas on their Supposition the last Words are of no Force. Robert on their Supposition should take only as the Law gave him, and Robert took as a Purchaser, which he could not do unless Samuel took an Estate for Life: If a Fee, he could not—if he took a Fee, the last Words go for Nothing.
    
      Auchmuty against the Tail.
    
    Their Authorities do not reach this Case, the Intent of the Testator is to be followed, but the Intent must be clear and must be agreeable to the Rules of Law. The Fee is at first plainly given; and where an express Estate is given, nothing by Implication shall take it away. 1 Salk. 236, Popham vs. Banfield. Cro. Cha. 368, Spirt vs. Bence. 6 Co. 16, Wild’s Case. Where an Implication affects an Heir at Law, that Implication must be very strong. 2 Bac. 66, Tit. Devise.
    I’ll consider the Force of the Words in the Will, and whether those Words operate so strongly as to turn the plain Fee Simple into a Tail. If Robert died and left Issue, well—but if not, then to the next eldest Grandson, which is not the Course of Tails; so that the Testator’s meaning cannot be collected from these Words; and if a Man shall try to make such an Estate as the Law never made, I take it to be utterly void. I shall shew the Words, pointing out the next immediate Heir a meer Nullity. The Grandson of an younger Son may be an elder Grandson than those of an elder, which is not agreeable to Tail.
    
      Ch. Juft. Qutzre
    
    —Whether the second Son of an eldest Son may not be called an elder Grandson, than an elder Grandson of a younger Son?
    
      Mr. Auchmuty.
    
    This with vulgar Minds would not be a natural Thought. I think if he has any Estate, it is a Fee Simple. Cro. Jam. 590, Pells vs. Brown. (This Case he largely compared with the Case at Bar.) The ordering him to maintain his Mother amounts to his ordering him to pay her a Sum in gross, which is allowed to cause a Fee Simple. 2 Bacon, 54. () 3 Rep. 31, a. 1 Lill. 451. The true Distinction is between a Sum to be paid out of the Rents, and a Sum in gross, which may be greater. But supposing the Case to be doubtful, as they are the Plaintiffs, I take it to be incumbent upon them to make out a clear Title.
    
      Mr. Gridley.
    
    2 Bacon, 62. () With Regard to the Disherison of the Heir, that is not in this Case to be considered—if it is the Mind of the Testator, that is the Rule. By the first Part Samuel was to have had a Fee Simple, but so as not to exclude Robert; ’tis plain he intended Robert should have the Estate. Samuel must either have a Fee Simple, Tail or an Estate for Life: If for Life, how is it to him and his Heirs?—if in Fee, what has Robert? The last Clause confirms my Opinion, it must be supposed that by eldest Grandson he intended Grandson by Samuel; this is the natural Course, that if Robert died, it should go to the Brothers of Robert, other Children of Samuel.
    
      Ch. Just.
    
    Is it not better first to make it an Estate Tail in Samuel, that it should rather go to these, than other Grandsons, than because it is thus divided, that therefore it is an Estate Tail?
    
      Mr. Gridley.
    
    Cases in Equity, 184, Case 28, Shaw vs. Weigh. Cro. Cha. 57. As for the Case Pells & Brown, here is nothing like a Limitation; Upon his Supposition it tends to such a Perpetuity as the Law abhors, it should have been “if Samuel die without Issue;” here it is “if Robert.” With Regard to the Maintenance, if there is a Doubt, what the Estate is, it shall be a Fee Simple, but never was any Maintenance construed to make a Fee Simple, when a clear Tail was: Maintenance in some Tails is good.
    
      
      (3) The estate sued for is described as “a neck of land in Glocester Harbour now called Pierson’s Neck.”
    
    
      
      (5) Prov. St. 4 W. & M. Anc. Chart. 233.
    
    
      
      (6) Col. Laws, ed. of 1672. Anc. Chart. 204, § 2.
    
    
      
      (7) Bac. Ab. Devise, C.
    
    
      
      (8) Bac. Ab. Devise, D.
    
   The Court

chose to consult upon the Matter, and so Judgment was adjourned to August Term, where the Chief Justice delivered the Opinion of the Court, which he said was unanimous that Samuel by the Words would have taken a Tail; but that the Burden and Duty of Maintenance made it a Fee Simple. () 
      
      (9) It would seem, however, that the Court must have considered the intent of the testator to be doubtful, as otherwise it would be difficult to answer Mr. Gridley’s position that “never was any maintenance construed to make a see-simple when a clear tail was.” 2 Jarman on Wills, 172.
     