¶1— Asked if it was understood that Joshua Shaw, the eldest sou of the devisee, was yet alive; and on being informed that he was, he said that there was nothing to argue; there was no point in the cause. When he had looked into the case, he had imagined that Joshua the younger was dead; and it had been neglected to have been found in the special verdict. For if he was dead, without issue, a question might have arisen whether the estate tail began in him or his father; for if in his father, a descent had passed, and he was vested with the fee simple; but if in him, no descent having passed, his next eldest brother would be the heir in tail.
¶2— If the counsel for the plaintiff was here', and wished to argue the cause, the court would hear him; but as it is, we are satisfied. The defendants must have judgment.
¶3Judgment for the defendants.
¶4The Reporter has understood that the counsel for the lessors of the plaintiff, intended to argue, that the male children of Joshua Shaw, the devisee, all took on the death of their father, in equal portions, and of course, that Joshua, the eldest Son, only took a third part of the land devised, and the lessors of the plaintiff [*] each a third; but to let in this proposition, a fee simple estate must have descended from their father, which, in no view of the subject, could be pretended.