to maintain, those established rules, without which property would be an idle word. Decisions which stand opposed to inveterate practice, or the current of authority, can never be forced upon the Profession. This has now been proved in so many instances (as in the attempts made in the time of Lord Mansfield to introduce equitable notions into courts of law, to shake off the relics of the feudal system, especially the rule in Shelley's case, and in our own times to break in upon the principles that guided the application of that rule, and to disturb the settled doctrines respecting attendant terms of years,) (s) that we may hope the period is at length

(8) See Sugd. Vend. 6th edit. 389. "Lady Radnor brought bill to have the benefit of dower against Vandebendy, who purchased of Lord Bodmyn, her husband, and to set this term out of the way; and by the decree before made, Lord Jefferys inclined to give relief, and did set the term out of the way, and direct she should bring dower at law : but Lord Somers reversed that decree, and upon appeal to the House of Lords the reversal was affirmed. There was great doubt in this Court, and so in the House of Lords, and there was a great inclination in the House to reverse that decree of Lord Somers: but when the counsel came to the bar, the Lords asked whether it was usual for conveyancers to convey a term for years to attend the inheritance to prevent dower? And the counsel, with great candour, saying it was, the Lords affirmed Lord Somers's decree." Per Lord Hardwicke, in Swannock v. Lifford, Butl Co. Litt. 208. a. n. 1.

Yet in a late case Doe v. Hilder, Sugd. Vend. 6th edit. 411. 2 Barn. and Ald. 782. where the Court was assured that it was not the practice of conveyancers to assign or notice terms on the occasion of a marriage settlement, the Court, after taking time

arrived, when the experience of so many failures will convince the most zealous of the futility of such experiments; and induce genius either to observe the narrow bounds prescribed to legal speculations, or to choose a field better suited to its ambition. It seems extraordinary that judges who rigidly maintain the technicalities of special pleading, which regulate the remedy, pronouncing them (as Lord Ellenborough was wont very justly to do) essential to the conservation of the laws of England, should not adhere with equal strictness to the rules of property, which confer the right.

The next case which occurred, Roe d. Clement v. Briggs, (t) did not render it necessary to give a decided opinion upon the effect of the words "heirs of the body" in creating an estate tail in the first taker.

It was the case of a devise of certain burgage

to consider of its judgment, appears to have decided upon the ássumption that the practice could not have been accurately stated. The fact, however, is within the knowledge of every professional man who has had any thing to do with the preparation of a marriage settlement. One of the mischiefs of these presumptions is, that no practitioner can fix the precise period when the act must be supposed to have taken place. Hillary v. Waller, 12 Ves. 239. supra 17. is open to the same objection. Contingent remainders may be legal or equitable, and consequently destructible or not, &c. and the title, therefore, good or bad, according to the period at which the presumption of the conveyance of a legal fee is to arise.

(t) 16 East. 406. (1812.)

K

messuages, &c. to testator's son R. C. for his life, and after his decease, unto the heirs of the body of R. C. lawfully begotten, or to be begotten, equally amongst them as should be then living, share and share alike. Also it was testator's further will that in case R. C. die without issue lawfully begotten, or to be begotten, then after his decease the testator devised the said messuages, &c. unto, the heirs of the body of testator's son J. C. lawfully begotten, or to be begotten, for ever, share and share alike. There was no custom of entailing. Lord Ellenborough said that whether this was considered in the nature of an estate tail in R. C. in order to effectuate the general intent of the testator according to the cases of Robinson v. Robinson, (u) Doe d. Cock v. Cooper, (x) Roe v. Grew, (y) and that class of cases, or whether it was considered as an estate for life in R. C., with a contingent remainder to the heirs of his body, or children, living at his death, in either way of considering it, the lessor of the plaintiff was barred by the recovery suffered by R. C.

The case of Doe v. Goff was relied upon in argument against the construction of an estate tail in R. C.; which seems to have been the true construction. A devise to A. and such heir of his

(u) 1 Burr. 38. Infra, Sect. VII. (x) Supra, 64.

(y) 2 Wils. 323. Infra, Sect. VII.

body as shall be living at his decease, (2) or to A. for life, and after his decease to his next or first heir (a) in the singular number, is an estate tail in A., (unless attended with superadded words of limitation;) and it seems impossible to contend that a devise to heirs of the body (in the plural) living at the decease of the first taker, is restrained to the person or persons first answering the description of heir or heirs of the body. As to the substitution of children, that construction could be resorted to only with the view of satisfying the words" equally amongst them share and share alike" in event, however, all the words, as they stood, might have been satisfied; for if R. C. had left issue only a daughter, and the child of a deceased daughter, the daughter and grandchild would have answered the description of heirs of the body then living, and would have taken as coparceners in equal moieties. There was not, therefore, a fair pretence for changing any of the words.

Sir William Grant, for whose opinion the Profession must ever entertain the highest respect, does not appear to have been disposed to sanction, by decision at least, the relaxation of ancient strictThe case of Bennett v. The Earl of Tank

ness.

(*) Richards v. Bergavenny, 2 Vern. 324.

(a) 8 Vin. 233.

erville, (b) decided at the Rolls, is not easily reconcileable with some of the decisions at law upon similar words. In that case plantations and lands in Virginia were devised to H. A. B. for his life, without impeach_ ment of waste, and from and after his decease, to the heirs of his body, to take as tenants in common, and not as joint tenants; and in case of his decease, without issue of his body, to the testator's eldest son Lord O., his heirs and assigns for ever, subject to the charge of 5000l. to his daughter F. A. B., with interest from H. A. B.'s age of twenty-one, and in case of his death before that time, from the time he would have arrived at that age, if he had lived; the testator declaring his intention to be, that if H. A. B. should die under twenty-one, or without issue, and the said plantations, &c. should thereby go to Lord O., he should pay the said 5000l. and interest; and in case both his said sons should happen to die before they arrived at the respective ages of twenty-one, he devised the said plantation, &c. to his daughter F. A. B., her heirs and assigns for ever. And he directed that in case his sons should sell the said estates, then the produce should be laid out in the purchase of lands in England, and settled as and to such uses as he had thereby given the said estates in Virginia. T

The case of Doe v. Goff was pressed in ar

(b) 19 Ves. 170. (1811.) ogled ent

TA