there would be no possibility for a testator to dispose of his property, without keeping a conveyancer in his house: (c) but there was now just ground of apprehension, lest men, even with that assist ance at their elbow, should still be found to die intestate, so far as regarded any will of their own. Indeed it seemed probable, that they might be too much busied in defending the possession during their lives, against claimants stimulated by the prevalent opinions to litigate the title as derived under some prior will, to allow them leisure for much concern about a thing so precarious as the destination of the property at their death.

(c) 1 Coll. Jur.

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SECTION V.

Review of the Judgment of the House of Lords in Jesson v. Wright.

The Grounds and Reasons of that Judgment, and its effect in re-establishing the Rules of Law.

THE foregoing is not an exaggerated representation of the state of the doctrine at the period when the decision of the Court of King's Bench in Doe v. Jesson (a) was reversed by the House of Lords. (b)

The arguments adduced in the House of Lords against the construction of an estate tail in W. W. assumed this shape,-that the words "heirs of the body" in the power, could not be taken in their strict technical sense: but must have been used to designate particular objects to take by purchase, as the donee could not appoint to issue indefinitely; that the testator could not intend to use

(a) Supra, 139.

(b) Jesson v. Wright, 2 Bligh 1.

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the same words in a different sense, in the limitation in default of appointment, where the mention of a child indicates the particular objects whom he had in contemplation; and that, therefore, as well in the power, as in the limitation in default of appointment, he must be understood to mean children, and nothing but children; that the words "in equal shares as tenants in common" were inconsistent with an intention to give an estate tail to W. W.; and that the words "in default of such issue," introducing the devise over, must be expounded" in default of such children."

But in this case, decided upon great consideration, it was held, that, assuming "heirs of the body" in the power, to contemplate objects to take as purchasers, it was not a necessary inference that the same words in the subsequent limitation must also operate as words of purchase; that though it might be manifest from the limitation in default of appointment, that the testator had children in his contemplation, yet he did not negative the legal conclusion from the words "heirs of the body;" that he contemplated children, and more remote issue; and that he meant heirs of the body, including children sustaining that character; and if that character should happen to centre in an only child, then such child to take the whole; that the words attempting to create a tenancy in common must be rejected as inconsistent with a gift to heirs of the body; and that the words "in default of such

issue" meant in default of such heirs; and that Doe v. Goff was not law.

The judgment, therefore, of the House of Lords in this case establishes beyond the reach of controversy,-1. That in order to explain away the appropriated meaning of the words "heirs of the body" there must be express words, or necessary inference or implication. 2. That the occurrence of the words "heirs of the body" as a designation of children, or other objects within the line of perpetuity, in a power of appointment, does not raise a necessary inference or implication that the same words are not used as words of limitation in the gift in default of appointment. 3. That if the gift be to the heirs of the body, the express mention in that gift of any particular class of inheritable issue, as children, sons, &c. in terms which do not clearly exclude the remoter descendants, will not narrow the operation of the words of gift. 4. That a testator having once manifested an intention that heirs of the body as such shall take, he cannot superadd to, or qualify, that intention; and that all expressions assuming to modify or regulate the course of devolution, or, in other words, to lay down new canons of descent, are, instead of being made the ground-work of a special exposition of the words "heirs of the body" to be rejected as vain and futile; and that when we find the testator giving to the heirs of the body, to take in that character, and under that denomination, all en

quiries as to what he meant besides, in relation to that gift, are wholly impertinent. 5. (By overruling Doe v. Goff) (d) that the words "heirs of the body," having so fixed and comprehensive a sense, do not require any aid, nor derive any additional force, from other expressions of (what is termed) a general intent that the estate shall not go over till an indefinite failure of issue of the first taker. And, 6. (By over-ruling Doe v. Goff) that a devise over to take effect if none of the issue of the first taker shall live to attain the age of twentyone, is a circumstance which does not repel the legal meaning of the words " heirs of the body,' but according to Lord Redesdale's opinion rather confirms it.

In comparing the devise in Jesson v. Wright with that in Willcox v. Bellaers, as regards the application of the rule of law, it will be seen that the former was marked by circumstances which rendered it much more intractable than the latter; by circumstances, indeed, which the Court below had allowed to operate in exclusion of the rule. In Willcox v. Bellaers we are not pressed by the difficulty of attributing to the words "heirs of the body" two different senses in different clauses of the will; on the contrary the argument against an

(d) In Doe v. Goff there was no devise over after a general failure of issue. Lord Ellenborough founds his argument on the absence of general intention. There were words importing a tenancy in common, on which the Court also relied. Supra, 123.

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