608 GULLIVER v. ASHBY. before he suffered the recovery; and consequently, the remainder to the lessor of the plaintiff shall take place? This case was argued by Glynn, Serjeant, for the plaintiff, [ *609] and Leigh, Serjeant, for the defendant, in Trinity Term last; and by Hill for the plaintiff, and Blackstone for the defendant, in the present Term. Upon the 1st Question, it was argued for the plaintiff, that, where an estate is limited by will to an heir-male and the heirs of his body, the first word heir is only descriptive of the person to take; for it would be idle to add words of inheritance afterwards, if the first words were intended to give an estate of inheritance to the first taker; Archer's Case, 1 Rep. 66(g). So too in Legate and Sewell, 1 P. Wms. 87, Tracey, J., was clear, that such a devise as the present carried only an estate for life: and though the three other Judges certified it to be an estate tail, yet, Lord Cowper was so dissatisfied with their opinion, that the case was never determined. Heirs are not necessarily words of inheritance in a will, when the intent is plainly otherwise; T. Jones, 114(h); Low and Davis, Lord Raym. 1561. And it is evident the testator intended only an estate for life, by annexing to it the condition to restrain waste, which would be nugatory, if he had meant an estate tail. But by Lord MANSFIELD, and the Court. It is too clear a point to be argued at all for the defendant (i). In Archer's and other Cases there was a previous estate for life given by the will; and here is none to Ambrose Saunders, though the testator has given others an estate for life by the same will. Legate's Case had also an estate for life expressly given, and yet that was decreed to be an estate tail, notwithstanding the printed book says otherwise (k). Upon the 2d question it was argued for the plaintiff, that if the taking the name be not a condition precedent, yet it is a conditional limitation, the breach of which devests the estate; and not a condition subsequent, of which none can take advan[ *610] tage but the heir at law. Where to construe words to be a condition would defeat the intent of the testator, they shall make a conditional limitation; Scholastica's Case, Plowd. (1) &c. (But per Cur'. There is no need to cite cases to prove that words of condition may sometimes enure as conditional limitations, especially where the heir at law is the first taker.) To apply then more closely to the present case; wherever a proviso or collateral limitation is annexed to an estate in feesimple, there the benefit of the condition will go to the heir, unless there be a devise over on breach of the condition: But where such condition is annexed to a particular estate, with a remainder expectant, there it shall always be a conditional limitation; and there needs no devise over in case of a breach, but the remainder-man shall take advantage of the breach without (g) But see the observations upon that case, post, 1012, n. (h) Lisle v. Gray. (i) See Long v. Lamy, ante, 265, and cases there referred to. (k) 2 Ves. S. 657, acc. GULLIVER ย. ASHBY. Ait; Andrews and Fulham, Stra. 1092, Viner, Devise, L. 53 (m). If the estate be defeated by such a breach, the remainder vests instantly, without any chasm; 2 Rep. 51 a; 2 Bulstr. 125, Roberts and Roberts; 3 Lev. 437, Duncombe and Duncombe, Perk. sect. 567; Bro. Devise, 4. If a devisee in tail refuses the estate or dies without issue, the next in remainder takes place immediately. So too if the estate tail be originally void in its creation; Goodright and Cornish, Lord Raym. 3, Salk. 226. The same law should take place, if the estate be afterwards determined by breach of the annexed condition; Hob. 346, Sheffield and Ratcliffe; Moor, 212, Rudhall and Milward. It remains therefore only to shew, that the proviso in the present case operates by way of limitation; and then it will follow that Corrie's estate vested in possession on the breach of it. The proviso could not be intended to affect Dorcas, whose name was Wykes already. The first, to whom it could relate, was Saunders; and the words "and not otherwise," imply a revocation of the devise, if the name was not changed. In Wellock and Hammond, Cro. Eliz. 204, 2 Leon. 114; devise to the heir at common law of lands in Borough English on condition, without any devise over; held, to be a limitation: Curtis and Wolverstone, Cro. Jac. 56, S. P.; Dyer, 316 b, (referred to, in 3 Rep. 21). Same point in a Gavelkind Case, dubitatur; now cleared by Wellock and Hammond. It may be objected, that Saunders was not the heir, because he and Dorcas Wykes were parceners, and so these cases don't apply: to this it is answered, 1. That the heir of Dorcas could only have [ *611 ] entered for a moiety, and the estate was meant to pass entire. 2. When Saunders came to the estate, and ought to have performed the condition, he was sole heir. 3. Wherever the heir enters for a forfeiture, he takes by descent; 1 Rep. 99; Jenk. 249. But one parcener cannot take by descent; Salk. 242: therefore one parcener cannot enter for a forfeiture. Lastly, The intent of the testator is clear, that the name and estate should not be separated; and upon this proviso no one can enforce that intent but by making it a conditional limitation. It is a kind of necessary implication, when all the words of the will will not be satisfied without this construction, and all will be satisfied with it. There is no hardship in barring the issue of Saunders by his default, since he might have barred them many other ways. As to the devise over, inserted in case of waste, but which is omitted here, the intent in both provisoes is not the same. In our case he meant the whole estate should go over; in that, only the place wasted: and therefore he expresses it there. As to the time when this forfeiture accrued; we say, as soon as the estate came to him, or within a reasonable time afterwards. Certainly there was reasonable time between the death of Dorcas, in 1756, and the recovery in 1759. (m) S. C. Andr. 263; cited also in Gulliver v. Wickett, 1 Wils. 105, (which see) and GULLIVER v. ASHBY. For the defendant it was insisted, that this was a condition subsequent, which cannot be taken advantage of by a stranger, but only by the heir, which is barrable by recovery, 1 Mod. 111(n); and therefore barred in the present case. The words are clearly words of condition, and cannot be implied into a limitation, unless to effectuate the manifest intent of the testator. Only two ways are hitherto known of implying a limitation by collecting that intent. 1st, Where there is a devise over in case of breach of condition; Porter and Fry, 1 Ventr. 199 (0); Page and Hayward, Pigott, 176, Salk. 570; Rundale and Ealey, Cart. 171 (p): in which case the law unites the condition to the remainder over, and does not suffer it to descend to the heir. 2d, Where an estate on condition is devised to the heir at law; Wellock and Hammond (q). The present case falls within neither of these descriptions. 1st, There is no devise over in case the condition be broken. And yet, in the very next clause, he devises over in case of a breach of [ *612 ]*the condition of not committing waste: plainly apprehending, that the mere breach of the condition would not occasion it to go to the remainder-man; for then the whole estate would pass to him by operation of law, and his express meaning is, that only the place wasted should pass. By the breach of a proviso (whether it be a condition or limitation) the whole estate must be defeated, and not a part of it; by Anderson, C. J., cited 1 Rep. 85 b. Nor, secondly, Was the estate in this case devised to the heir; Saunders was only part of an heir, a coparcener with Dorcas Wykes. He became sole heir long after the testator's death, by the decease of Dorcas without issue. If it was a limitation at all, it was so at the death of the testator; and then the reason for implying it to be so did not exist. The coparcener might have entered and defeated the whole estate, and have enjoyed a moiety; which perhaps the testator might think to be forfeiture sufficient. And, though a parcener cannot take her own moiety by descent, and her sister's by devise, when the whole land is devised to her by the ancestor, yet, if two parceners be deforced, each shall enter for her own moiety; Lutw. 802; Bro. Co-parceners, 2. So one coheir in gavelkind may enter (for a forfeiture) on a moiety, Dyer, 317 (r); resolved, in the case of Wellock and Hammond. It would be an harsh construction to suppose, that by the fault of the first taker the issue in tail should be inevitably barred. For, if it be a limitation, the estate instantly determines, Bracebridge's Case(s), Moor, 99, 633; and the forfeiture is not optional, as in case of a mere condition. Besides, in case of an estate tail, the law will raise no implication to prejudice the innocent issue in tail, who is the first object of the testator's bounty, in favour (n) Hudson v. Benson; S. C. 2 Lev. (0) Or Lady Anne Fry's Ca. Baldwin, 1 Roll. Abr. 411, pl. 5; Anon. 2 Mod. 7. (r) It should be, Dyer, 316 b, pl. 5, Anon. (s) Or, Harwell v. Lucas. All the of a remainder-man, who is only a secondary object. GULLIVER v. ASHBY. * But, supposing it a limitation, we then insist, 1. That there [ *613] was no breach before the recovery. 2. That the lessor of the plaintiff has not made out any title. 1. When no time is limited for fulfilling a condition, then if it be beneficial to any body, the performance may be hastened by request. But, where (as in the present case) it is beneficial to nobody, and depends on the sole act of the person bound to perform it, he has all his life to perform it in; 6 Rep. 30 b; 4 Leon. 125 (v). Either Saunders had therefore his whole life to perform it in, or it must be argued that he was bound to take the name the instant the estate vested: for if it is deferred, under the idea of giving a reasonable or convenient time, it still remains indefinite during his life. If notice is allowed to be requisite (both of the devise and the condition) how does that notice appear to be given? Saunders's most beneficial and prima facie title was as heir at law. If it is objected, "This will render the testator's intention of no effect;" it is answered, "No matter: if the testator's design is to have such foolish intentions executed, he should take care to guard them better." If therefore Saunders had his whole life to perform the condition in, he had a good estate tail when he suffered the recovery; and of consequence barred, not only the estate tail, but also the condition; 1 Mod. 111 (u); Page and Hayward (a stronger case) (w). 2. If the condition ought to have been performed immediately, or soon after the estate vested, still the lessor of the plaintiff must (upon that very ground) have no title at all. For it is agreed, that when the proviso is broken in a conditional limitation, the preceding estate ceases, and the subsequent estate vests, without claim or entry; Bracebridge's Case, Moor, 99, 633; Rundale and Ealey, Cart. 171; Co. Litt. 214b; 10 Rep. 40 b (x); Porter and Fry, 1 Ventr. 203; 2 Mod. 7, Anon.; Foy and Hyrde, Sir W. Jones, 58. If therefore Saunders's estate determined at any given period before the recovery in 1759, by not assuming the name, Corrie's immediately vested; and as he did not then assume the name, at the like given period, his estate also became forfeited; and so on, till Saunders's own reversion in fee as right heir of the testator took place. If a claim and entry were necessary to devest the estate, none were made; and the recovery therefore was [614] good. If none were necessary, the consequence will be as above stated. Nay, to this very day, the lessor of the plain (t) See Mr. Fearne's observations upon that case in F. C. R. 259, (8th ed.). (v) This reference should be to 1 Leon. 305, Ca. 425, Fabian's Ca. (u) Benson v. Hudson. GULLIVER v. ASHBY. tiff has not fully performed the condition, by using the name of Wykes only, for one of the demises is in the name of Corrie. Lord MANSFIELD, C. J.-The only foundation of the plaintiff's title is, that Saunders's estate tail ceased by his not taking the name of Wykes, and vested in possession upon Corrie. It is merely a question of construction. And certainly the intent of the testator ought always to be carried into execution liberally, provided it be not contrary to law. It is pity, that in the old cases this principle is not carried throughout. They stop short in the middle, and determine partly on the intent, and partly upon technical reasons. Thus in Wellock and Hammond, the general principle is undeniably true, that where an estate in fee of the nature of Borough English is given to the heir at law upon condition, it shall be a limitation, to effectuate the intent of the testator. But the case then goes on directly contrary to the intent, which was to give it to the heir, subject to such a charge. The proviso was, " to pay in two years;" he paid it in five; and that was held a breach sufficient to devest his estate. In the present case it is admitted, that this proviso is not a condition precedent. It was impossible it should be so. The condition is not only to take the name for himself, but also for his heirs. This cannot be done, without a grant from the King, or an act of Parliament, neither of which are in the party's own power (y). (y) Quære as to the necessity of having either the King's grant or an act of Parliament to enable a person to assume any particular surname; for a man may have several surnames; 66 may have divers names at divers times, but not divers Christian names;" Co. Lit. 3 a; Disply v. Sprat, Crok. Eliz. 57; Fermor v. Dorrington, Id. 222. From which it may be concluded, that a man may acquire a surname by reputation for in the case of his having several surnames, he might have derived one from his ancestors,-" Cognomen majorum est ex sanguine tractum;" 6 Rep. 65 a,and another from some accidental circumstance, or by his own assumption. Acquiring a name by reputation must be understood to mean a man's being generally called, known, described, and designated by any particular name in the vicinetum, which reputation or general designation has been the origin of all surnames. For they were originally descriptive of the character or person, of the rank, trade, or profession, of the residence or lands; or were patronymics. And though a bastard, being filius nullius, has no name (that is, no surname) by reputation as soon as he is born, he may afterwards acquire one, and a grant to such bastard will not be good till he has acquired one, that is, till he has either acquired the reputation of being the son of A.; and then it may be to him by the de A scription of the "reputed son of A. ;" or |