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![handle is hein.slavery/ssactsengr0952 and id is 1 raw text is: MICHAELMAS TERM, 8 WILL. 3. IN B. R..
tion of the Court, &c. And if, upon the whole matter aforesaid, by the jurors afore-
said, in form aforesaid found, it shall seem to the Court of the lord the King here,
that the said Samuel Brace, the now defendant, is guilty of the trespass and (266]
ejeetment within-written, in manner and form as the said George within complains
against him, then the said jurors further, upon their oath, say, that the said Samuel
Brace is guilty of the trespass and ejectment within-written, in manner and form as
the said George Leigh within complains against him; and they assess the damages of
him the said George Leigh, by the occasion within written, besides his costs and
charges by him about his suit in this behalf laid out, to sixpence, and for those costs
and charges to forty shillings. But if, upon the whole matter aforesaid, by the jurors
aforesaid, in form aforesaid found, it shall seem to the Court here, that the aforesaid
Samuel Brace, the now defendant, is niot guilty of the trespass and ejectment within
written, in manner and form as the said George within complains against him, then
they the said jurors further say, upon their said oath, that the said Samuel Brace is
not guilty of the trespass and ejeetment in the declaration within-written specified, as
the said Samuel Brace within for himself in pleading hath alleged. And because the
Court of the lord the King now here is not yet advised of giving their judgment of
and upon the premises, day is thereupon given to the parties aforesaid before the lord
the King at Westminster, until - next after - to hear their judgment of and
upon the premises, for that the Court of the said lord the King now here thereof is
niot yet, &c.
CASE 128. LEIGH against BRACE.
Hilary Term, 6 Will. 3, Roll 929.
[Discussed, Tapner d. Peckham v. Merlott, 1739, Willes, 181.]
If a feoffment in fee be made to trustees for the use of the feoffor for life, with
remainder to his son in fee, and for default of issue of the bod:y of the son, to the use
of the right heirs of the feoffor for ever, the son shall take an estate tail only under
this deed.-S. C. Carth. 343. S. C. 1 Ld. Ray. 101. S. C. 3 Salk. 337. S. C.
Holt, 668. S. C. 12 Mod. 101.
Upon a special verdict in ejeetment, the case upon the pleading was thus:
Walter Brace, being seised of the lands in question, did, on the twenty-fifth day
of July, in the year 1622, make a feoffment thereof in fee to Thomas Wilkes and
Thomas Flavell, and their heirs, to the use of himself for life, and after his decease
to the use of his son Thomas Brace and his heirs for ever; and for default of issue
of the body of the said Thomas Brace, then to the use and behoof of the right heirs
of the feoffor for ever. Walter Brace afterwards died so seised, and Thomas his son
entered upon the lands; who,. on the sixteenth day of April 1681, made his will, and
amongst other things devised the same to his son-in-law John Cookes and his heirs,
on the body of Rebecca his then wife begotten or to be begotten, paying his debts and
legacies. The said Thomas Brace died seised of the said lands; and after his death
John Cookes entered by virtue of the said devise. Samuel Brace the defendant is
son and heir of the said Thomas Brace, and the said Samuel, after the death of his
father, did likewise enter upon (267] these lands. John Cookes afterwards entered,
and made a lease to the plaintiff for seven years, by virtue whereof he entered and
was possessed until Samuel Brace ejected him. And the jury make a general
-conclusion.
The single question was, what estate Thomas Brace took by this feoffment ?
It was argued, that he had a fee-simple, for such an estate was expressly limited
to him; and if the deed had gone no farther, it must be an estate in fee, and not
otherwise. But that which makes the doubt are the words which immediately
follow: and for default of issue of the body of the said Thomas Brace, thei to the
grantor and his heirs. It is true, these words might create an estate-tail in a will,
- and alter an express limitation made of the estate before; and the reason is, because
.a man in eztremis is inops consilii: but it is otherwise in a feoffment, which is
supposed to be made upon deliberation, and with advice of counsel. And therefore
648
5 MOD. 266.](ViewImageLocal?handle=hein.slavery/ssactsengr0952&div=1&collection=&method=preview&ext=.png&size=3)