the said messuage or tenement in the writ mentioned, and became seised thereof for the estate so to him devised. That on 6th August, 1851, the said James Kershaw, the said son of the said nephew, who survived the said testatrix, duly made and executed a certain deed under and in *pursuance of the Act made, &c. (3 & 4 W. 4, c. 74, « For the abolition of fines and recoveries, and for the substitution of more [*848 simple modes of assurance"); and which said deed was duly enrolled in the High Court of Chancery within six calendar months after the execution thereof. Whereby he, the said James Kershaw, attempted to convey and dispose of the said messuage and tenement in the writ mentioned to such uses, upon and for such trusts and purposes, and in such manner and form, as he, the same James Kershaw, should by any deed or deeds appoint; and, in default of such appointment and so far as the same should not extend, to the use of himself, the same James Kershaw, his heirs and assigns. And that, if he the same James Kershaw was seised of an estate tail in the said messuage or tenement, the same would be conveyed and disposed of according to the tenor and effect of the said deed.

That on 21st May, 1852, the said James Kershaw, the said son of the said nephew, who survived the said testatrix, duly made and published his last will and testament in writing, duly attested and subscribed according to law. Which will contains, amongst other things, the following clause, namely: "I also give and devise unto my said wife Eliza Kershaw the estate belonging to me situate at," &c.; of which property the said messuage and tenement in the said writ described formed a part.

That the said Eliza Kershaw, in the said last-mentioned will named, is the defendant in the writ mentioned.

That the said James Kershaw, the said son of the said nephew, who survived the said testatrix, died on 4th July, 1853, without having revoked or altered his said will.

*That the plaintiff is the great-nephew and heir at law of the said Jane Taylor, being the son and heir at law of Ottiwell Kershaw, who was the heir of the said Jane Taylor.

[*849

The verdict then left to the Court, in the usual form, the question, whether the plaintiff was entitled to the possession of the premises as in the writ mentioned.

The case was now argued. (a)

Joseph Addison, for the plaintiff.-James, the son of the nephew of the testatrix, had only a life estate, and could therefore give no estate extending beyond his own life. As he was alive at the time of the making of the will, and after the death of the testatrix, a devise giving estates to his unborn son or sons as purchasers would not be bad for remoteness, he having an estate for life only. It will be argued, on the

(a) Before Lord Campbell, C. J., Coleridge, Erle, and Crompton, Js.

!

other side, that the language of the limitations over shows an intention to give him an estate of inheritance. But that view cannot be supported. First, the land is given to his nephew "for his life, without impeachment of waste." There is no pretence for treating this as a larger estate than for life. Then the land is given, "from and after his decease," to the first son of his body, "for and during the term of his natural life only, without impeachment of waste." The words here are as before, but strengthened by the addition of the word " only." This, so far, creates only an estate for life; and the question is, whether such estate is enlarged into an inheritance by the devise, from and after his decease, "to the first son of the body of such last-mentioned son, with remainder to the second, third, and all other sons of the *850] body of such last-mentioned son, for ever, the elder being always preferred to the younger. And, in default of all such issue," to the right heirs of the testatrix "for ever." The estates of the sons of the nephew's son are all to be taken by purchase, whatever their nature is. The case is much like Foster v. Lord Romney, 11 East, 594. There land was devised to T. for his natural life, without impeachment of waste, and, from and after the determination of that estate, to the use of trustees to preserve contingent remainders, and, from and after the decease of T., "to the use of all and every the son and sons of the body of" T., "severally and successively, one after another, as they and every of them shall be in priority of birth and seniority of age. And for default of such issue," over. It was held that T. took only an estate for life. Lord Ellenborough there pointed out that, according to the view of Lord Mansfield, in Denne dem. Briddon v. Page, 11 East, 603, note (b), (a) the word "such" confined the meaning of issue to sons, so that the limitation was not like one made for default of issue," which would have given an estate tail. [COLERIDGE, J.Was Evans dem. Brooke v. Astley, 3 Burr. 1570, referred to in that argument?] It was referred to in Denne dem. Briddon v. Page. Slater v. Dangerfield, 15 M. & W. 263,† is also an authority for holding that the son of the nephew took only an estate for life. Monypenny v. Dering, 2 De G. Macn. & G. 145,(b) may be cited for the same point; although it may be admitted that the discussion in that case was mainly on the cy pres *doctrine. [Cowling, for the defendant, agreed *851] to this.] But, on the other side, it will be contended, further, that, even supposing this to be so, and his deed to be ineffective, still the plaintiff cannot recover, because the limitations following the gift of such estate for life give fees to the sons of the son of the nephew. Now, if they give only estates for life or in tail, the plaintiff must succeed, the sons having died without issue, and not having disentailed.

(a) S. C., as Denn dem. Bridden v. Page, note (a) to Doe dem. Dacre v. Dacre, 1 B. & P 261. (b) Affirming the judgments of Wigram, V. C., in S. C. 7 Hare, 568, and of K. Bruce, V. C., in B C. See S. C. 16 M. & W. 418, 9 Com. B. 700 (E. C. L. R. vol. 67).

But, to show a fee simple, the plaintiff will rely on the words "for ever." Whatever be the effect of these words, no more than an estate tail can arise. For if the words gave a fee, that fee would go, in the first instance, to the eldest son of the nephew's son; and thus the intention of the testatrix, that the sons of the nephew's son should have estates successively in remainder one after the other, would be defeated; such eldest son might devise the whole away; if he did not, his daughters would take before his brothers. But, supposing the words "for ever," alone, would give the fee, then such an estate is cut down to an estate tail by the words "in default of all such issue;" Lewis dem. Ormond v. Waters, 6 East, 336. [COLERIDGE, J.-Are you not now, for the purpose of cutting down the estate given to the sons of the nephew's son, seeking to give an effect to the words which you will not allow to them for the purpose of enlarging the estate of the nephew's son ?] "Issue" means the issue of the nephew's son, not the issue of the nephew's son's sons: the argument therefore may consistently be applied to one case and not to the other. Where an estate is expressly limited for life only, it never is enlarged into an estate tail except where that is the only possible mode of giving effect to the limita[*852 tions in remainder. But words which, of themselves, give inheritances may be restricted to estates tail by words which, as here, give the land over to heirs general upon the failure of the donees, described as sons of the body, and taking successively in remainder. [COLERIDGE, J.-In Lewis dem. Ormond v. Waters, the words "for want of such issue" followed the limitation to the first and other sons of my said eldest son and their heirs."] Upon the assumption which the defendant must make here, the words "for ever" are tantamount to words of inheritance: if they are not, the estates are only for life, and the difficulty which is suggested against the plaintiff's claim does not arise. The object of the testatrix was to defer to as late a time as possible the power of absolutely aliening the land: this general intention is carried out by the construction for which the plaintiff contends, without violating the intention apparent from any particular limitation.

Cowling, contrà.-The nephew's son took an estate in tail male: and a remainder over is limited in the event of the failure of such estate. The words for ever" and "in default of all such issue" show that the testatrix meant to give some inheritable estate to some one. The question therefore is, Who is the root of this inheritable estate? If the son of the nephew be taken as the root, the intention of the testatrix will be carried out as nearly as can be done consistently with her language. It is to be observed that the disposition made of the land after the death of the nephew is very different from that made after the death of his son. After the death of the nephew, no interest is given to any son of the nephew except James, the elder: his second son, [*853 John, is completely excluded, as well as his daughters. Had 2x2

VOL. III.-66

James, the nephew's eldest son, not taken, the land would have gone to the right heirs of the testatrix. But, at the death of the son of the nephew, the land goes to his sons in succession, according to priority of birth, for ever. Here "sons" seems to be used as nomen collectivum : and, when the sons are exhausted, the land is to go, not to the daughters, but to the right heirs of the testatrix. That is, in effect, a tail male in the nephew's eldest son. [Lord CAMPBELL, C. J.-Would not the intention of the testatrix be fully carried out by making the son of the nephew's son the root of the inheritable estate?] No construction will quite carry out the intention. The word "only," following the limitation for life to the nephew's son, will not affect the estate resulting legally from the limitations, any more than if the testatrix had given a fee with a proviso against alienation, in which case the proviso would have been rejected. (a) It does, however, show that the testatrix believed that, but for the word "only," the limitations would have given more than a life estate. In Robinson v. Robinson, 1 Burr. 38,(b) land was devised to a man "during the term of his natural life, and no longer;" yet, because the limitation required an estate tail, the words "no longer" were rejected. There the limitations over were: "after his decease, to such son as he shall have:" "and for default of such issue" then over. In King v. Melling, 1 Vent. 225, Lord Hale, delivering judgment, cites Bifield's Case, 1 Vent. 231: "A devise to A. and if he dies not having a son, then to remain to the heirs of the testator. Son was there taken *to be used as nomen collectivum, and held *854] an entail." Here the failure of issue looked to is the failure of the issue of the son of the nephew; that son therefore is the root of the entail. If his sons take by purchase, what estate do they take? There is nothing to make it an estate in tail male, rather than in tail general yet it is manifest that the testatrix meant to give the inheritance to males only. In Wight v. Leigh, 15 Ves. 564, (c) the devise was to the plaintiff, and after his death to his first and other sons, and in default of male issue to his eldest and other daughters and their heirs male for ever this was held to be a tail male in the plaintiff; Sir W. Grant, M. R., saying: "The male issue intended must, I think, be the male issue of the father, not of the sons. Nothing is before mentioned of any issue male of the sons: whereas there is a certain description of male issue of the father before spoken of, viz. his first and other sons. Therefore the failure of issue male intended must be of issue male of the father, rather than of the sons." The same reasoning shows that here the root of the tail male is the nephew's son; for there can be no difference between "default of male issue" and "default of such issue;" "such" must refer to what has been before described, as appears from

(a) See Litt. s. 360; Co. Litt. 223 a.

(b) Affirmed in Dom. Proc. under the name of Robinson v. Hicks, 3 Bro. P. C. 180 (2d ed.). (c) See Doe dem. Burrin v. Charlton, 1 M. & G. 429 (E. C. L. R. vol. 39).

Goodright dem. Docking v. Dunham, 1 Doug. 264.

The will here

appears to use a peculiar vocabulary. If a testator devised to A. for life, remainder to A.'s son for life, remainder to such son's son for life, and so on for ever, that would be a tail male as much as if the words "tail male" had been used; and, if to that had been added a clause that no one tenant in possession should bar the estate, such clause would have been rejected. [CROMPTON, J.-The object here was, it seems, to prevent the barring as long as possible.] *Neither construction aids that. If the unborn sons of the nephew's son [*855 were to take by purchase, it would be a contingent remainder, which the tenant for life might defeat. [Lord CAMPBELL, C. J.-It is not likely that the testatrix knew that.] In Foster v. Lord Romney, 11 East, 594, the words for ever" did not occur. The propriety of the decision in Wight v. Leigh, 15 Ves. 564, has been doubted in 2 Jarman On Wills, 387, &c. The author seems to consider that sufficient stress was not laid on the words "Surrey estate," which would, he says, have of themselves vested the fee in the sons, so that the words "in default of male issue" might have been applied to cutting down such fee to an estate tail, so as to enable them to take in succession. But a similar expression occurred in Foster v. Lord Romney, and was not treated as giving a fee. Slater v. Dangerfield, 15 M. & W. 263,† is inapplicable: there the devise was to D. for life, and then to the lawful issue of D., their heirs and assigns for ever: a party could not well be said to take to himself and heirs except by purchase. Doe dem. Blandford v. Applin, 4 T. R. 82, Chorlton v. Craven,(a) Lewis v. Puxley, 16 M. & W. 733,† supply instances where, to effectuate the general intent, estates expressly limited for life have been enlarged into inheritances.

[*856

In all the cases in

Joseph Addison, in reply.-The argument, that no stress is to be laid upon the apparent intention of the testatrix to tie up the estate as long as possible inasmuch as the particular tenant could destroy the contingent remainder, is hardly applicable to such a will as this. The testatrix might well know that a tenant in tail could bar the entail by recovery, but might not know that by a tortious act the contingent remainder would fail for want of a freehold to support it. The legal results of the two acts are very different. which an estate expressly given for life has been enlarged into an inheritance, the object has been to carry out the general intention: here such a construction would defeat the general intention. Goodright dem. Docking v. Dunham, 1 Doug. 264, is an authority in favour of the plaintiff: the first taker there was held to have only an estate for life. Mr. Jarman considers that Evans dem. Brooke v. Astley, 3 Burr. 1570, is overruled by Foster v. Lord Romney, 11 East, 594; Jarman On Wills, vol. 2, p. 369. The intention here that the sons shall take in succession is of great importance: on that point the decision in Lewis dem. Ormond (a) Cited in Mellish v. Mellish, 2 B. & C. 524 (E. C. L. R. vol. 9).