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the 16th of January 1696, Reginald Brown died, leaving issue the said William his eldest son, and Thomas his second son. That on the 12th of January 1712, Ann the testator's widow died, and thereupon William Brown entered into and was seised of such part of the premises in question as had been devised to her for life. That on the 20th of December 1722, William Brown died, leaving Isabella Oliver, one of the lessors of the plaintiff, his daughter, and no other issue; and that Thomas his brother, the second son of Reginald, entered and was seised.

That 1 Geo. II. an act of parliament was made (which was stated verbatim in the verdict) upon the petition of the said Thomas Brown, to enable him (who in the act was stated to be tenant [272] for life only) to grant building leases of the premises in question, for any term not exceeding 99 years. That at the time of passing this act, the said Thomas Brown had issue, only one son named Reginald, who, on the 26th of April 1736, died an infant, without issue, and unmarried.

That Thomas Brown, by indentures of lease and release, dated the 1st and 2d of April 1747, between himself of the one part, and John Greaves and Roger Whichcot Massey of the other part, conveyed the premises in question, to Greaves and Massey and their heirs; to the intent to make them tenants to the precipe in a common recovery intended to be suffered of the said premises, and which recovery, when suffered, was thereby declared to be to the use of the said Thomas Brown in fee. That at the assizes holden at Lancaster, on the 6th of April 1747, a common recovery was suffered, according to the usage and practice of that court, of the premises in question, wherein Thomas Baxter and John Barlow were demandants, the said Greaves and Massey were tenants, and the said Thomas Brown was vouchee, That on the 5th of June 1762, Thomas Brown duly made his will, and thereby devised an annuity of £100 per ann. to Margaret his wife for life, and another annuity of £40 per ann. to his grandson John Barlow, son of his daughter Sarah, then the wife of the defendant Mason, during the lives of Margaret and Sarah, and the survivor of them, to be issuing out of the premises in question; he then devised the remaining clear rents, issues, and profits thereof, during the lives of the said Margaret and Sarah, and the survivor, unto the said Margaret and Sarah, and the said John Barlow and the survivor of them, share and share alike; and he devised the premises in question, after the decease of the said Margaret and Sarah, to the said John Barlow his grandson in fee. That on the 7th of November 1762, Thomas Brown the testator died seised, leaving the defendant Sarah, wife of the defendant Mason, his daughter and heir at law. That Thomas Brown and Samuel Brown, the brothers of the testator Joshua Brown, died many years ago without issue. That Isabella Oliver, one of the lessors of the plaintiff, was the heir at law of William Brown, the first son of Reginald, and was also heir at law of the testator Joshua Brown. That Richard Oliver, and Isabella his wife, demised to the plaintiff the premises in question, to hold from the 16th of November, 3 Geo. III. for ten years, by virtue of which demise he entered, and the defendants ejected him; and upon the whole matter, the jury submitted to the judgment of the court, whether the verdict ought to be for the plaintiff, or defendants.

In Hilary term 1765, this special verdict was argued in the court of King's Bench, and judgment given thereon for the defendant; the court being most clearly of opinion, that Thomas Brown, the second son of Reginald Brown, took an estate tail in the premises in question, by the will of Joshua Brown.

[278] To reverse this judgment, the present writ of error was brought; and on behalf of the plaintiff it was argued (C. Yorke, J. Dunning), that the estate devised to Thomas, under the description of "the second son of my brother Reginald," was in so many words expressed to be an estate, "for and during the term of his natural life;" without any superadded or subsequent words which could operate to enlarge that estate, or any evidence arising from the will of an intention in the testator to give him a larger estate; but on the contrary, a manifest intention appearing in the whole frame of the will, to make all the sons of Reginald, born or unborn, and of Samuel after him, tenants for life successively, with remainders in tail to the first and other sons of every such tenant for life. As to the words of the will, the defendants would avail themselves of the confusion in the expression, arising from the omission above taken notice of; and had argued, that though the estate first given to the second son of Reginald, was expressed to be an estate for his life, yet there was afterwards a limitation inserted to the heirs of his body, which uniting with the former devise, would enlarge the estate