because then it must either be a joint estate for life, with several inheritances in tail, or several estates tail in succession. The last t could not be, because it would be uncertain who should take first, who next, &c.; and the first it could not be, because the heir at law shall not be disinherited without a plain implication, which in this case there was not; for it was only a designation and appointment of the time when the land should come to the nephew; and therefore the lands descended to the heir at law.

23. With respect to the words that are necessary in a will to describe the devisees, any words that are sufficient to denote the persons meant by the testator, and to distinguish them from all others, operate as a good description.

24. Thus where there was a devise to Margaret, the daughter of W. K. The daughter's name was Margery. It was held she should take; quia constat de persona. 25. A person devised an estate to William Pitcairne, eldest son of Charles Pitcairne of Twickenham; who had an eldest son, but his name was Andrew. It was decreed that Andrew should take.

26. A person devised all his lands in Kent and Sussex to one of his cousin Nicholas Amherst's daughters, that should marry with a Norton, within fifteen years. N. Amherst had three daughters, one of whom married with a Norton within the fifteen years. This was adjudged a good devise to her, notwithstanding the uncertainty; and that the law would supply the words, who shall first marry.

27. It has been stated that a bastard may be a devisee, but that he must, for that purpose, have gained a name by reputation, in order that the 'devisor scribe him.

may

de

28. A person devised an equal share of his estate to River's case, his two sons, James and Charles Rivers. Lord Hard- 1 Atk. 410. wicke said, the question was, whether, as it appeared that James and Charles were two illegitimate children,

Wilkinson v. Adam,

1 Ves. & B. 422.

Bayley v. Snelham,

1 Sim. & Stu 78.

Swaine v.
Kennerly,

1 V. & B. 469.

this was such a description of their persons, as would entitle them to take under the will? In the case of a devise, any thing that amounted to a designatio persona was sufficient: and though in strictness they were not his sons, yet if they had acquired that name by reputation, in common parlance, they were to be considered as such. It had been said, the testator had made a mistake in their names, and therefore they could not take; but the law was otherwise; for if a man was mistaken in a devise, yet if the person was clearly made out by averment to be the person meant, and there could be no other to whom it might be applied, the devise to him was good.

29. It was held in a late case, that under a devise by a married man, having no legitimate children," to the children which I may have by A., and living at my decease," natural children who had acquired the reputation of being his children by her, before the date of the will, were entitled, as upon the whole will intended, and sufficiently described.

But in a subsequent case Lord Eldon held, that under the description of children in a will, illegitimate children, existing at the date of the will, were not entitled, unless proved by the will itself to be intended. And that evidence could be received only for the purpose of collecting who had acquired the reputation of children.

The word heir. 30. In consequence of the rule of law that nemo est hæres viventis, an immediate devise to the heirs of a living person would be void. But a devise to the heir special of a living person has been held good, where the word heir has been qualified by the words "now living," or some other words or circumstances have appeared in the will to manifest the testator's intention.

Burchett v. Durdant,

2 Vent, 311

31. A person devised to a trustee and his heirs, in trust to permit Robert Durdant to receive the rents during his life, and after his decease, to the heirs male of the body of the said Robert Durdant then living.

It was adjudged that this was a vested remainder in the only son of Robert Durdant; the words heirs male of the body then living, being a sufficient designation of such only son, as much as if it had been to his heir apparent.

Darbison v.

Beaumont,

32. A person devised the remainder of all his estate to the heirs male of the body of his aunt Elizabeth P. Wms. 229. Long, lawfully begotten; and gave a legacy of 100%. to Elizabeth Long. At the death of the testator, Elizabeth Long was living; and the question was, whether her eldest son could take under this devise. It was adjudged by the Court of Exchequer that he should take. Upon a writ of error in the Exchequer Chamber, before the Ch. Justices Parker and Trevor, this judgment was reversed.

1

Ca. 60.

A writ of error was brought in the House of Lords, 3 Bro. Parl. where the judgment in the Exchequer Chamber was reversed, and that of the Court of Exchequer affirmed; upon the principle that the word heir had several significations. In the strictest sense it signified one who succeeded to a dead ancestor; but it also signified, in a more general sense, an heir apparent, which supposed the ancestor to be living; and in this latter sense, the word heir was frequently used in statutes, law books, and records. As therefore the law gave several senses to this word, it would be hard in this case to expound it in the most strict and rigorous sense, which would destroy great part of the will; when by law it might have another sense, which would support the whole will, and the manifest design of the party.

v. White,

1010.

33. A person devised to his son Richard Brooking, Goodriht his heirs male, and to the heirs of his daughter Mar- 2 Black. Rep. garet White, jointly and equally, to hold to the heirs male of Richard, lawfully begotten, and to the heirs of Margaret, jointly and equally, and their heirs and assigns for ever. It was resolved, that this was a sufficient designation of the person, to make the son of Margaret take as her heir, living the mother.

Doe v. Ironmonger, 3 East, 533.

Tit. 32. c. 20.

Wills v.
Palmer,

5 Burr. 2615.

Ford v.
Ossulston,

11 Mod. 189.

Dawes v. Ferrers,

2 P. Wms. 1.

34. Lands were devised to a trustee, to receive and pay the rents and profits for the maintenance of the devisor's niece Sarah, and the issue of her body, begotten or to be begotten, during the natural life of the said Sarah; and from and after the decease of his niece Sarah, then upon trust for the use of the heirs of the body of his niece Sarah, 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. Sarah had a son and two daughters. The Court said, that the words, "without any respect, &c." plainly showed an intent that the children of Sarah should take as purchasers.

35. It has been already stated, that formerly, where there was a limitation of a remainder in a deed to an heir special, it was held that he must answer both parts of the description; but that this doctrine had been altered by a modern decision. In the case of a devise, the same doctrine was held for a long time, but was denied in the following case.

36. A person devised to his son for life, remainder to his first and other sons in tail male; and for want of such issue, to the heirs male of his body begotten. The devisor died, leaving a grand-daughter, the daughter of his eldest son, his heir at law; and a second son, who died leaving a son. Upon a case sent out of Chancery for the opinion of the Court of King's Bench, the Judges certified, that an estate in tail male passed to the grandson, as heir male of the body of the devisor.

37. A devise to the heirs male of the devisor only extends to the heirs male of his body, and not to a collateral heir; so that if the devisor has not an heir male of his body, the devise is void.

38. A person devised his lands to his grand-daughter, who was his heir at law, for her life; remainder to his own right heirs male, for ever; and died leaving his grand-daughter his heir at law, and a deceased brother's son, being the next in the male line.

Lord Macclesfield held the devise void, because it was to the heirs male, without saying of any body.

317.

This cause came on again before Lord Hardwicke, 8 Vin. Ab. who directed a case to be made for the opinion of the Judges of the Court of King's Bench, who certified that the brother's son could not take by the description of right heir male of the testator.

Roe v.

Quartley,

Term R. 630.

39. It was held in a modern case, that a devise to the right heirs of husband and wife, was a devise to such person as answered the description of heir to both, namely, a child of both; husband and wife being con- 1 Inst. 187 a. sidered in law as but one person. And where no

preceding estate was given to the father and mother,

such child should take as a purchaser.

1 Ld. Raym.

185.

40. It was held in a case in 9 Will., that a special Baker v. Wall, heir, though he was not heir general, might take by purchase, under a will, if the devisor expressly exclude the heir general; but a devise in remainder to the right heirs of the testator for ever, his son excepted, is void.

41. C. Ben devised to the eldest son of his son all his estates for life; and for want of heirs in him, to the right heirs of himself, C. Ben, the testator, for ever, his son excepted; it being his will he should have no part of his estates, either real or personal. C. Ben, the testator, left a son and three daughters. On a question who was entitled to this estate, the Court of King's Bench determined in favour of the daughters. A writ of error was brought in the House of Lords, where the Judges were unanimously of opinion, that no person took any estate under this will; whereupon the judgment of the Court of King's Bench was reversed.

Pugh v,

Goodtitle,

3

Bro. Parl. Ca. 454.

Fearne 6th edit.

App. 573.

42. The word issue is a sufficient designatio persona, The word issue. or description of a devisee, in a will; and comprises

both children and grandchildren.

2 Vern. 545.

43. A devise was made to the issue of I. S. who had Cook v. Cook, then a daughter living, and afterwards had a son born. The question was, who should take. Lord Cowper