118

SECTION IV.

Review of Decisions since the time of Lord Kenyon, in which "Heirs of the Body" unexplained, have been held to designate Children.

General Remarks on these Decisions, and the Principles which they threatened to Introduce.

OF the decisions, since the time of Lord Kenyon, in which the words "heirs of the body" have been held to be restrained, one has been reversed in the House of Lords, (a) another has been denied by the same high authority to be law, (b) a third is stated to have been a surprise upon the profession, (c) and we shall presently see what degree of credit is really due to the rest.

In the first of these cases, Doe d. Hallen v. Ironmonger, (d) the estate of freehold limited to

(a) Doe v. Jesson, see Jesson v. Wright, 2 Bligh 1.

(b) Doe v. Goff, Ibid.

(c) Gretton v. Haward, see 1 Jac. & Walk. 566. (d) 3 East. R. 533. (1803.)

the ancestor, and the remainder to the heirs, were, by reason of their different qualities, incapable of uniting. The testatrix devised to G. B., and to the heirs of his body, testatrix's real estate, to hold unto G. B. and his heirs for ever, with a proviso that if G. B. or no heir of his body, should be in Great Britain, or if living should not come into Great Britain personally to claim the estate within seven years from testatrix's death, then the executors were to receive and retain the rents for their own use for ever; and at the end of the said seven years, testatrix devised her said estates to G. H., his heirs and assigns, upon trust to receive and apply the rents for the support of S. C. and the issue of her body, lawfully begotten, or to be begotten, during the natural life of S. C.; and from and after the decease of S. C., then upon trust for the use of the heirs of the body of S. C. lawfully begotten, or to be begotten, their heirs and assigns for ever, without any respect to be had or made in regard to seniority of age, or priority of birth; and in default of such issue, then in trust for the right heirs of A.B. for ever. Lord Ellenborough said, that all S. C.'s children were intended to take together, "without regard to seniority of age, or priority of birth;" that must mean that they should take as joint-tenants; and as the father of the lessor of the plaintiff died before any severance of the jointtenancy, his children could not take. The counsel for the plaintiff admitted that S. C. did not take an estate tail, inasmuch as the legal freehold was

executed in the trustee, and the estates could not unite: but contended that the limitation to the heirs was a legal contingent remainder to the person answering the description of heir of the body of S. C. at her death.

The clause "without any respect to be had, &c." was an attempt to foist into the succession qualities which the law will not allow of, and ought, (according to Lord Alvanley's doctrine, that "mere words of condition, describing the order of succession in which the devises are to take place, are not sufficient to vary the technical sense of the words heirs of the body,'") to have been disregarded; nor were the superadded words entitled to any weight.

It matters little whether we reject words, or render them nugatory by construction. The reasoning attributed to Lord Ellenborough denied all operation to the words " without any respect, &c." for if the testatrix intended children to take, they must necessarily have taken as joint-tenants, for want of words to create a tenancy in common; and whether they took as joint tenants, or tenants in common, they would have taken without regard to seniority of age, or priority of birth. The Court probably reasoned thus:-The testatrix contemplated a taking without respect to seniority, &c. but heirs of the body cannot so take; therefore, the testatrix must have meant other objects, and most probably children. On the same

principle, if the devise had been to the children of S. C., their heirs and assigns for ever, regard being had to seniority of age, and priority of birth, the Court must è converso have construed "children" to mean "heirs of the body;" and indeed this would be the less violent construction of the two, since "children" (e) may act as a word of limitation in a will, without express words of explanation, although heirs of the body cannot (as we have seen (f)) be cut down to a mere description of individuals without the clearest evidence of intention. In fair construction, the words of the devise import succession, without regard to primogeniture, a descent contrary to the common law. If the testator contemplated children, the qualification was insensible.

The words "in default of such issue" passed unnoticed; though, according to the doctrine laid down by Lord Kenyon in Doe v. Smith, (g) and other cases of that class, and adopted by Lord Ellenborough on other occasions, these words manifested the testator's general intention that the devise over should not take effect till the issue of S. C. should be extinct; and which intention could only be effected by allowing the heirs of the body to per formam doni. In Pierson v. Vickers, (h) where the expressions were more favorable to a

take

(e) Seale v. Barter, supra, 43. Wilde's case, 6 Co. R. 16. (f) Supra, Sect. III. (g) Supra, 96.

(h) Ibid. 114.

restricted construction of the words "heirs of the body," Lord Ellenborough asked "How do you get rid of the words 'in default of such issue?" " (i)

If this case were to stand, it would be an authority for putting an interpretation upon the words "heirs of the body," when not preceded by a freehold in the ancestor, different from that which had obtained where the freehold was limited to him.

In a subsequent case, Doe d. Strong v. Goff, (k) certain messuages were devised to testator's daughter M. G. and to the heirs of her body, lawfully begotten, or to be begotten, as tenants in common, and not as joint tenants: but if such issue should depart this life, before he, she, or they, should respectively attain their age or ages of twenty-one years, then to J. M. his heirs and assigns for ever. And by another clause in the will, the testator devised other premises to his son J. M., and the heirs of his body, lawfully begotten, or to be begotten: but if J. M. should die without issue, or such issue should all die before he or they should attain their age of twenty-one, then and in such case, he devised the same to his said daughter M. G. and to the heirs of her body lawfully begotten, or to be begotten, such issue if more than one to take as tenants in common, and not as joint tenants. It was held that under the gift to the

(i) Infra, Sect. VII.

(k) 11 East. 668. (1809).