fee-fimple, unless there be words to controul it; and as there are no words in this will to that effect, the executors must take a fee.

GROSE, J.-In order to give effect to the devifor's intention, it is necessary that the executors fhould have the abfolute power over the whole of his real estate.

Judgment for the defendant.

Dox on the Demife of HENEAGE against HENEAGE.

Upon the Trial of this Ejectment at the Lincoln Assizes, the Defendants took the following.

CASE.

That Thomas Heneage, deceased (the late grandfather of the leffor of the plaintiff in the ejectment), being feised in fee of the premises in queftion, by will dated the 28th of February, 1735, devised the same to his brother George Heneage, and to William Taylor, and their heirs, &c. in trust, as to part of the premises, to the ufe of his wife Catherine Heneage, for life, in lieu of her dower, remainder to trustees for a term of 500 years, upon certain trusts which never took effect (and which term hath been fince duly furrendered by the trustees), remainder as to the part before limited to the faid Catharine, and alfo as to the parts whereof no ufe was therein before, limited, to the ufe of his fon George Fiefchi Heneage, by his first wife, for life, remainder to the use of the faid George Heneage, and William Taylor, and their heirs, "during the life of the faid G. F. Heneage," in truft to preferve the contingent uses and estates therein after limited, nevertheless to permit the faid G. F. Heneage to receive the rents, &c. thereof during his life," remainder to the use of the first and other fons of G. F. Heneage fucceffively in tail-male, remainder to the ufe of the devifor's fon Thomas, by his then wife, for life, remainder to truttees to preferve contingent remainders, remainder to the first and other fons of the faid Thomas He

neage

neage (the fon) fucceffively in tail-male, remainder to the ufe of the devifor's third and other fons fucceffively in tail-male, remainder to the devifor's right heirs in fee. In which will is contained the following provifo: "Provided always, and my will is exprefsly, that in cafe it shall happen that my faid fon G. F. Heneage, or any other fon or fons of his, to whom the faid manors, &c. therein before-mentioned, are limited as aforefaid, fhall ever inherit or take by descent, or by any gift, grant, or devife, or otherwife become feifed in poffeffion for his or their life or lives, or for any greater eflate, of the whole or fo much of the real estate of my faid brother George Heneage, as fhall exceed the yearly value of the estate by this my will limited, in use to him and them by 100 by the year, that then and from fuch time as my faid fon G. F. Heneage, or any fon or fons of his, fhall fo inherit, or take by defcent, gift, grant, or devife, or otherwise become feifed in poffeffion of fuch or fo much of the faid real estate of my faid brother George Heneage as aforefaid, for the term of his or their natural life or lives, or of any greater eftate, all and every the ufe and ufes, limitations, and eftates, herein before created and declared of and concerning the faid manors, &c. herein before-mentioned, to and for, or in favour of, my faid fon G. F. Heneage, or any fon or fons of his, fo coming into poffeffion of such and fo much of my faid brother's eftates as aforefaid, fhall ceafe, determine, and be utterly void. And in fuch case, my will and meaning is, that the next in remainder, according to the ufes of this my will, fhall fucceed to, and have and enjoy my faid eftate hereby devifed," as if my faid fon G. F. Heneage, or any fuch fon or fons of his, was or were respectively dead;" any thing herein before contained to the contrary thereof in any wife notwithstanding."

T. Heneage, the devifor, died on the 18th of May, 1740. leaving the faid Catherine Heneage, fince alfo dead, his widow, and G. F. Heneage, his eldest fon and heir at law; whereupon G. F. Heneage entered upon the premises limited to him for his life, (except fuch part as was limited to Catherine Heneage for her life, for her jointure). Catherine Heneage died on the 16th of October, 1766, whereupon G. F. Heneage entered upon the premises fo limited to her for her jointure, and was, and continued in poffeffion of all the premises in queftion until his death, on the 21st of March, 1782. G. Heneage, the devifor's brother, who was alfo feifed in fee of feveral manors, &c. by will dated

the

the 20th of July 1751, devifed the fame to the use of his nephew, the faid G. F. Heneage, for life, remainder to his firt and other fons fucceffively in tail-male, with divers remainders over, and with the reverfion to his own right heirs. The devilor, George Heneage, died on the 25th of August, 1753; on which his nephew, G. F. Heneage, en. tered upon the premifes devised to him by his uncle's will, and which exceeded the yearly value of the eftates above limited to him for life, by his father's will, by .100, and upwards, by the year and continued in poffeffion till the faid 21ft of March, 1782, when he died, leaving iffue of his body, the defendant, his eldeft fon and heir, and the leffor of the plaintiff, his fecond fon. At the death of the taid George Heneage, the uncle, G. F. Heneage had no fon. The defendant was born on the 21st of December, 1768, and the leffor of the plaintiff on the 28th of September, 1771. G. F. Heneage had alfo a fon named George B. Heneage, who was born on the 17th of March, 1767, and died the 10th of May, 1768, before the birth of the defendant. Thomas Heneage (the fon of the teftator Thomas Heneage, named in his will,) died unmarried and without iffue, on The 27th of February, 1751, in the life-time of the faid George Heneage; and the devifor, Thomas Heneage had no third or other fon. The ultimate limitation in the will of the faid Thomas Heneage to his right heirs, was vested in G. F. Heneage, as heir of his father Thomas Heneage, at the time of the death of the faid George Heneage, the uncle. Upon the death of G. F. Heneage, the defendant, his eldest fon, took by devife, and became and ftill is feifed in poffeffion in tail-male of the estate of George Heneage (the brother of the faid first-named devifor Thomas Heneage), under the will of George Heneage, and which estate of George Heneage exceeds the yearly value of the eftate" devifed by the will of Thomas Heneage by £.100 by the year and more. Upon the death of G. F. Heneage, the defendant alfo entered upon the premises in question, and is till in poffeffion thereof, and hath never had any iffue of his body.

LORD KENYON, Ch. J.-This is one of those cafes on which it is impoffible to raise any doubt. It was owing to the anxiety of the parties at the time of the trial, and not to any doubt of my own, that this question was referved for the opinion of the Court. The general outline of the will, ftripped of technical terms, is this: the devifor, who was a younger brother, left his eftate to his eldest fon for

life, remainder to trustees to preserve contingent remainders, remainder to his first and other fons in tail, with a provifo, that if the larger eftate fhould defcend from the elder branch of the family to his eldest fon, his own estate fhould go to the younger branch of his family: that event did happen, the uncle's eftate defcended to the devifor's eldest fon. The argument now ufed is, that, notwithstanding fuch may have been the devifor's intention, he has not ufed proper limitations to give effect to it: and the objection is, that the particular eftate having been determined before the contingent limitations could take effect, those limitations were defeated. But that objection depends on the not giving effect to one of the most important limitations in the will, namely, that to the trustees to preferve contingent remainders during the life of G. P. Heneage: thofe are the common words inferted in every limitation of this kind; and there is nothing in this will to induce us to imagine that the devifor intended that the eftate limited to the trustees should not continue during the whole natural life of his eldest fon. Unless therefore the defendant can obliterate: those words from the will, or fhew that they cannot have any effect, there is an end of his claim; but most unquestionably their eftate did continue during the eldest fon's life. It is not neceffary to decide here who was entitled to the rents and profits after G. F. Heneage fucceeded to his uncle's eftate, and before he had a fon born: it is fufficient for the determination of this cafe that the trustees had a right of entry during the whole of G. F. Heneage's life, and were to receive the rents and profits, for fome purpose.

Poftea to the Plaintiff.

MOSELEY

MOSELEY. PIERSON.

This was an action upon the cafe against the defendant for having fold oatmeal on market-days, in the town of Manchester, in an inclosed fhed at a public houfe, where it was delivered to the buyer.

The declaration stated that the plaintiff was, and ftill is, Jawfully poffeffed of a market, holden and to be holden in Manchester, on Saturday in every week throughout the year, for buying and felling flour and oatmeal, and other goods ufually fold in markets; and by reafon thereof the plaintiff, of right, ought to have a reasonable toll of all flour and oatmeal fold, or expofed to be fold, within the faid town on any of fuch market-days, not being the flour or oatmeal of any perfon legally exempt from the payment of fuch toll, viz. one quart and one quarter of a quart of flower out of every twelve score pounds weight of flour, and a quart and a quarter of a quart of oatmeal out of every twelve score pounds weight, fold, or exposed to be fold, within the fame town on any of fuch market-days; yet that the defendant, on Saturday the 3d of April, 1790, and on other Saturdays, wrongfully and injuriously fold divers large quantities of flour and oatmeal, and exposed to feal divers other large quantities on the fame market-days in a private, fecret, and clandeftine manner, whereby the plaintiff was prevented taking his toll, and could not enjoy his faid market and tolls as he ought to have done. But the claim of toll was not laid in the declaration to arife from goods brought into the market, and there fold or expofed to fale.

Upon the Trial at the Affizes the plaintiff was nonfuited, upon the ground that he was not able to produce evidence that toll ever had been taken of flour, &c. fold, which had not been brought into the market.

Now upon a motion to set aside this nonfuit, the Court delivered their opinion as follows:

LORD KENYON, Ch. J.-There is no doubt on the law on this fubje&; for most unquestionably the plaintiff muft prove his claim as it is laid in the declaration. But the only queftion is on the legal meaning of the word fold, as it is here ufed. There may indeed be a fale by fample in fraud

of a