it is submitted that this is not the true view of the case. The words that is to say," &c. were not. an after-thought, or a retracting of the preceding words; but were the primary and principal idea in the mind of the testator, to which the first words were merely introductory. It is one continuous and entire disposition; and this constitutes the distinction between such cases, and those in which the subsequent words are merely secondary and referential.

Lord Kenyon adverts to this case in Goodtitle d. Sweet v. Herring (q) in these terms: "In former times, indeed, greater strictness was attributed to the words 'heirs of the body.' The estate which was the subject of dispute in Lawe v. Davies came to a gentleman who was not satisfied with the decision; and whose doubts were founded upon an old opinion of Lord Holt's, that the words heirs of the body' were so positive to give an estate tail to the first taker, that they could not be gotten rid of by subsequent words. That opinion I have seen but it was certainly too strait-laced a construction, and nobody has ever since doubted that the case of Lawe v. Davies was rightly decided." (r) The assertion that the words "heirs of the body" were interpreted with less strictness than formerly might be true, as applied to the extra-judicial opinions of his Lordship, and some of his brothers but was clearly not at that period borne (q) 1 East. 164. infra. (r) 2 Burr. 1100. infra.

out by any decision upon those words, except Doe d. Long v. Laming. (s) This dictum must be classed with the assumption of Lord Mansfield in Taylor d. Atkyns v. Horde (t) that feoffments had lost their ancient virtue. Lord Holt's opinion was probably to this effect;-that an express gift to one and the heirs of his body had so fixed a meaning in law, that subsequent expressions which did not so clearly manifest an intention to use "heirs of the body" in another definite sense as to exclude all doubt, would not control those words. Supposing Lord Holt's opinion to have gone no further, it is surely of some value; always bating its antiquity, an objection, which, when time once begins to run against an opinion, must be ever gaining strength, but to which we will hope that some of Lord Kenyon's opinions, upon points of this nature, may not live to be exposed. In Lawe v. Davies such an intention was sufficiently

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(s) There is no doubt but that the words 'heirs of the body' may be controlled by subsequent words, that was so held in Lawe o. Davies, and a variety of other cases; and yet it is worth remembering as a matter of curiosity, that Lord Holt and Lord Sommers thought that they could not be so restrained by any subsequent words as to carry less than an estate tail." Per Lord Kenyon in Denn v. Puckey, 5 T. R. 306. This "variety” of cases was not to be found in the Books in Lord Kenyon's time. It is improbable that Lord Holt and Lord Sommers gave an unqualified opinion that no subsequent expression of intention could explain "heirs of the body" so as to make them words of designation.

(t) 1 Burr. 60.

apparent; yet it should seem that the parties did not sit down quietly under the decision.

The case of Doe d. Long v. Laming, (u) which stands next in order, arose upon a devise of an undivided fourth of gavelkind lands to testator's niece A. C. and the heirs of her body, lawfully begotten, or to be begotten, as well females as males, and to their heirs and assigns for ever, to be divided equally, share and share alike, as tenants in common. It does not appear that there was any devise over. A. C. died in the testator's lifetime. The Court held that it was clearly the testator's intention that the heirs of A. C.'s body should not take till after her death; and that as the devise to her had no words of limitation added to it, it was a devise to her for her life, and that heirs. of the body were synonimous with children; who were intended to take the inheritance in fee simple as tenants in common. Even assuming heirs of the body to mean children in this devise, the construction adopted by the Court does not appear to have been borne out by authority but this point is foreign to the present enquiry.

Lord Mansfield said the devise could not take effect at all, but must be absolutely void, unless the heirs took as purchasers; that the term " heirs" in the plural, in the case of gavelkind lands, an

(u) 2 Burr. 1100. (1760)

swered to the term "heir" in the singular in the common case of lands not being gavelkind; for the word "heir" in the singular would not serve for gavelkind lands, it must be "heirs" in the plural; that the testator mentioned females, not only expressly, and particularly, but even prior to males ; and that it was clear that the testator did not mean that the lands should go in a course of descent in gavelkind.

These appear to have been the grounds chiefly relied on, though the judgment seems anxious to provide a reserve of arguments drawn from other devises in the will to be brought up if the front line should be broken. (s)

(s) The will, according to the report in Burr., contained, amongst other devises, a devise of another undivided fourth of the same lands to testator's niece-in-law G. R. widow of his late nephew E. R. deceased, and to the heirs of her body lawfully begotten as well males as females, and to their heirs and assigns for ever, to be divided equally share and share alike as tenants in common, and not as joint tenants. Lord Mansfield is made to observe, that the testator's disposition of one of the proportions shewed his intention as to the rest, viz. the devise to the widow of E. R., which could receive no other construction but that those heirs must take as purchasers. He could not mean that his nephew's widow should take the estate tail in that whole one-fourth; therefore the necessary construction of that devise was a strong argument of his intention as to the rest. 2 Burr. 1111. But it should seem that this is a mistake of the reporter, and that the devise was to the heirs of his G. R.'s body. 3 T. R. 145. But, taken either way, no argument can

In the report of Goodtitle d. Sweet v. Herring, (t) Lord Kenyon is stated to have said that Lawe v. Davies, if it wanted confirmation, had been fortified by the subsequent decision in Doe d. Long v. Laming, of which his Lordship read a note of Mr. Filmer's, taken, as he said, more accurately than that of Sir James Burrough. The Court there clearly thought, (continued his Lordship) that the subsequent words "as well females as males," shewed that the testator meant the words "heirs of the body, &c." to be words of description of the persons whom he intended should next take, not words of limitation.

Mr. J. Blackstone observes upon this case, (u) that it was a devise of gavelkind lands, and that since gavelkind lands cannot descend to heirs female, as well as males, (as is expressly declared by the statute De Prer. Reg. 17 Ed. 2. c. 16.) nor can heirs as such be tenants in common, but coparceners; it was clear that by the words "heirs of the body," (thus explained by the words, "female as well as male," and to take as tenants in common) the devisor could only mean to describe the children of A. C. But this conclusion does not seem to flow from the premises.

Here, again, the devise to A. C. and the heirs of her body was unbroken: but this circumstance

be founded upon it against the estate tail in A. C. in the fourth devise to her and the heirs of her body.

(t) Infra.

(u) Harg. Tracts 506.