The CASE of Henry Long Eſq;

JOHN Long, late of Little Chiverell, in the County of Wilts, Eſq; being ſeized in fee ſimple of divers Meſſuages, Lands, and Tenements lying in Melkſham in the ſaid County, and having no Wife, Child, Brother, or Siſter then living; but having divers Nephews, and being deſirous to Settle his ſaid Lands and Premiſes in the Male Line of his Family according to their Heirſhip, by his laſt Will and Teſtament in Writing; bearing Date July the Twentieth 1676. did deviſe all his Eſtate in Melkſham aforeſaid (except two little Tenements thereby given to John Philipps) unto his Nephew Henry Long, who was eldeſt Son of Richard Long the Teſtators eldeſt Brother, for and during the Natural Life of him the ſaid Henry Long, who was his Heir at Law, and from and after his Deceaſe, to the firſt Son of the Body of the ſaid Henry Long lawfully Begotten, and the Heirs Males of the Body of ſuch firſt Son law­fully Iſſuing; and for default of ſuch Iſſue, to the 2d. 3d. 4th. 5th. 6th. 7th. and every other Son of the Body of the ſaid Henry Long, lawfully to be Begotten ſucceſſively and reſpectively as they ſhould be in Priority of Birth and Seniority of Age, and to the Heirs Males of their Bodies ſucceſſively and reſpe­ctively Iſſuing the Elder of ſuch Sons, and the Heirs Males of his Body Iſſuing, being always prefer­red before the younger, and the Heirs Males of his Body Iſſuing: And for default of ſuch Iſſue,

To Richard Long ſecond Son of the Teſtators Brother Richard for his Life, and from and after his De­ceaſe to his 1ſt. 2d. 3d. 4th. 5th. 6th. 7th. and every other Son in the ſame manner as above. And for de­fault of ſuch Iſſue, then

To no leſs then nine ſeveral other Nephews of the Teſtator, particularly named in the ſaid Will, in the ſame manner; and eſpecial care is taken by the Teſtator, that they ſhould all take according to their Heirſhip.

Upon the Teſtators Death, which was ſoon after this Will was made, Henry entred upon this Eſtate, and inter-marryed with Ann Long, Daughter of John Long, late of South Wraxall in Wilts, Eſq; by whom he had Iſſue one Daughter; and about Lady-day, 1687. Henry dyed, leaving his ſaid Wife enſeint with a Son who was born within Seven Months after his Fathers Death, and Baptized by the Name of Henry.

Upon the death of Henry without any Son, Richard Long being the next in Remainder, entred and en­joyed theſe Lands, but on the Birth of Henry the now poſt humus Infant; Richard well knowing the In­tent of his Unckle the Teſtators Will, laid no further claim to the Premiſes, but ſuffered Ann the Widow of Henry, and Mother of Henry the poſt humus Infant, to enjoy this Eſtate as Guardian to her ſaid Son, who hath enjoyed it ſo ever ſince the Birth of her Son without any Interruption, till now lately Richard hath commenced an Action of Ejectment for this Eſtate, on which Action there is a ſpecial Verdict found, con­taining all this matter.

It was and muſt be agreed, That if this Child had been born in the life time of his Father, the Ti­tle had been in him; but only for the reaſon he was not Born till after his Fathers Death, Judgment is gi­ven for the ſaid Richard Long.

Whereas the Intent of the Teſtator is the main and only thing conſiderable in a Will, and the intent in this Caſe is Notorious; That the Son of Henry whether born before or after his Fathers Death, ſhould en­joy this Eſtate, as appears by the great care taken to limit it to ſo many Nephews, according to Heirſhip.

And whereas a poſt humus Son is as much an Heir as one born in the life of his Anceſtor; and conſtru­ctions of Wills ought to be in favour of an Heir at Law, and the Teſtators meaning; in regard Men in extreams are not ſuppoſed to have Counſel for their aſſiſtance. And whereas this Will was made in the Teſtators laſt Sickneſs, and for the Benefit of his Heir, 'twill be hard to fruſtrate the intent of his Will, and wreſt his meaning to diſinherit his Heir; when by the Laws of all Nations, a Will is nothing but a Declaration of the Parties Mind, how, and by whom his Eſtate ſhall be enjoyed, and this is as plain here as words can make it.

The Conſequence of ſuch a Judgment, will be to give Weſtminſter-Hall a power not only to expound but to make Mens Wills, and to diſpoſe of their Eſtates contrary both to their words and meaning, ſince both are manifeſtly plain in this laſt, in favour of the ſaid Henry Long the Infant.