a clear precedent gift to heirs of the body, a term which proprio vigore embraces issue indefinitely, it is wholly unnecessary to seek assistance from the subsequent words; nor can it be endured that words introductory of a further disposition, by reference to such previous devise, because they happen to describe the period of its determination in terms inconsistent with its nature, or short of its actual extent, shall defeat the settled operation of that devise: The Courts from an abundant anxiety to fortify their judgments, and, perhaps, some latent disinclination to oppress an old rule of law with the whole burthen of the decision, have in many of the modern cases used the generality of the clause introducing the devise over as confirmatory of an estate tail, where the previous gift has been unambiguous and perfect in itself: but it cannot be collected from the former authorities, that the construction stood in 999 Clive, J. in Roe d. Dodson v. Grew, 2 Wils. 324. """ Issue' is an ambiguous term: it may mean, and frequently does mean, children only; it may mean all descendants." Per Sir William Grant, in Earl of Orford v. Churchill, 3 Ves. & Beam. 67. "The word issue' is not so appropriated a word of limitation as the word 'heirs.' Fear. C. R. 120. "The word 'issue' is a word of less determinate meaning than the words heirs of the body,' and in wills depends for its construction more on the intention of the testator, than on the strict rules of law." Prest. Est. 379. "In some cases a distinction has been taken between the effect of the words heirs male' and 'issue male:' but according to my note of Roe v. Grew, Lord C. J. Wilmot thought there was none." Per Buller, J. 5 T. R. 305. 6 need of such aid, and certainly no case had gone the length of reducing such a gift within the limits of a subsequent restrictive clause, not equally explicit, and unequivocal. This is strongly exemplified in the case of Wright v. Pearson, (c) which is fully commented upon by Mr. Fearne. (d) In that case a gift, with superadded words of limitation, was followed by a proviso, and a devise over, the one contemplating a failure of the issue male at the death of the first taker, and the other in the lifetime of persons in esse; and the "default of such issue male of T. R." in grammatical construction referred to the dying without issue male living at the death of T. R.: but the Court thought it would be "absurd" so to construe the will, and in effect new-modelled the arrangement of the clauses, in order to let in a more rational construction. In Atkins v. Atkins, (e) lands were devised to S., and to the heirs of his body, and after his decease to B., the eldest son of S., and the heirs of his body. This was adjudged an estate tail in S. So, in Doe d. Cock v. Cooper, (f) where a testator devised a messuage and lands to R. C. for the term only of his life, and after his decease, (c) Supra 58. (d) Fearn. C. R. 93. (f) 1 East. 229. unto the lawful issue of the said R. C. as tenants in common: but in case the said R. C. should die without leaving lawful issue, then after his decease to E. H. in fee; it was held an estate tail in R. C. Lord Kenyon said, that the implication from the subsequent words "in default of his leaving issue," made it an estate tail. (g) He thought that to raise cross remainders by implication between more than two, without any thing further than what appeared there, would be directly contrary to former authorities; and as this consideration may be thought to have influenced the construction, and as the rule against implying cross remainders between more than two has since been relaxed, if not in effect reduced to a dead letter, this case cannot now, perhaps, be deemed quite so satisfactory an authority as when it was first decided; yet, if it be considered that in the clause introducing the devise over, on which the implied estate tail was founded, the words " after the decease" were aided by the word "leaving," and that this clause prevailed in a case where the restrictive word “only” (g) It seems difficult to discover the principle which suggested this resort to implication. The gift to the lawful issue seems to be at least as strong to create an estate tail, as any implication from subsequent words, contemplating a dying without leaving issue; and if it be said that the words "as tenants in common" restrained the gift to children of the first taker, where shall we find the principle which sanctions two contrarient interpretations of the same words ("lawful issue") occurring in such close association? was applied to the estate for life, and where the Court had not to struggle with any stubbornness in the word "issue," (an ambiguous word, capable of yielding to any construction in favour of the intent,) it should seem to be at least as strong a case as one, in which the word "immediately" is found without any of those circumstances, and with others of an opposite nature. In Doe d. Cole v. Goldsmith, (h) however, already cited, the word "immediately" did occur; the devise over being introduced by the words "and in default of such heir of his body lawfully to be begotten, then, from and immediately after his (the tenant for life's) decease;" yet those words were not considered as opposing any obstacle to the construction of an estate tail. There are two cases, which, on a cursory inspection, may be thought to favour the restrictive operation of the words in question, and which were in fact urged against the estate tail in H. T. Willcox, and not improbably influenced the decision. One of these is Robinson v. Grey, (i) (a case directed by the Court of Chancery,) where a testator devised certain messuages to her three daughters, E. R., A. G., and M. R., and to the survivor of them for their respective lives, share and share alike, and from and immediately after the decease (h) Supra 49, et seq. (i) 9 East. 1. of all of them, to all and every the child and children, as well sons as daughters, of the said E. R., A. G., and M. R., who should be living at the death of the survivor of them, as tenants in common, (no words of limitation, nor the word estate,) but if all her said daughters should die without leaving any issue, then immediately from and after the decease of the survivor of her said daughters, in trust for the testator's grandson, W. R., (the heir at law of testatrix,) his heirs and assigns for ever. And testatrix devised the residue of her real estate to her said three daughters, share and share alike. The judges certified (and, as it should seem, mainly upon the ground that the testatrix intended to exclude the heir altogether, if the contingency on which the estate was devised to him should not happen) that such of the children of the daughters as should be living at the death of the survivor would take estates in fee as tenants in common. It does not appear how the Court would have decided if the ultimate devisee had been a stranger, (and the circumstance of his being the heir does not seem to form a very solid ground of distinction,) but assuming that in such case the children would have taken life estates, the words from and immediately after," &c. being deemed irreconcileable with the notion of an indefinite failure of issue of the daughters, the case would only prove, that where there is a devise to A. for life, with remainder to his children |