thought that was not very material in the principal case, as by the will the trusts were fully limited and declared. For he thought it very dangerous that a different construction should be put upon words of limitation in cases of trusts and legal estates, except where the limitations were imperfect, and something seemed left to be done by the trustees in the first place; and, consequently, secondarily by the Court of Chancery.

The second question was, whether the heirs male of Thomas Rayney took a fee as purchasers, or in tail, under the limitation to the father. He thought that T. Rayney took an estate tail, from the apparent intent of the testator, who plainly intended that the heirs male, &c. should not take an estate in fee, which they must, if they took as purchasers. He was considering, he said, whether he could not make this construction, viz. to Thomas for life, then to his heirs male in tail, then to the grandchildren. And if the limitation had been, for default of such heirs of the body, he might have considered it as heirs of the body of the heirs male, &c. mentioned before. But the limitation there was, for default of such issue male, &c. He thought the words, and their heirs, in the will, were redundant and surplusage; and that Thomas Rayney took an estate tail; and consequently that the recovery suffered by him was good. And though it was a rule never to reject words in a will, if they could stand, yet he must do it in this case, to support the testator's intent.

He said, that in the case of Bagshaw v. Spencer, which was a case of a trust, as the principal one was, Lord Hardwicke did upon that ground, and the limitation of the other moiety of the estate to the Spencers, and other circumstances in the case, which showed the intent of the testator plain and clear, construe it to be only an estate for life in Bagshaw; contrary to the former determinations. He did it on the plain intent

of the testator, and in so doing assumed no more power than every court of law had.

Duke of Nor

559.

27. John Holman gave all his estate to trustees and Austen v. Taylor, their heirs, to the uses, trusts, and purposes therein Amb. 376. mentioned; first, to the intent that his sisters should 1 Eden, 361. receive an annuity for their lives, and subject thereto, Jervoise v. in trust for the plaintiff for life, remainder to trustees thumberland, to preserve contingent remainders, remainder to the 1 Jac. & Walk. heirs of the body of the plaintiff, remainder to his own right heirs. He also gave the residue of his personal estate to trustees, in trust to buy lands in fee, which he directed should remain, continue, and be, to, for, and upon such and the like estate and estates, trusts, intents and purposes, as were by him before devised, limited, or declared of and concerning his lands and premises therein-before devised, or as near thereto as might be, and the deaths of persons would admit.

Upon a bill to have the residue laid out according to the will, the question was, whether the plaintiff was entitled to an estate for life, or in tail, in the lands to be purchased.

Lord Keeper Henley said, nothing was left to the trustees to be done, but to buy the land; the testator had declared the uses of the land, when purchased: he did not believe the testator intended the trustees should make a conveyance; there was no necessity for it. It was said, if the words in the former limitation had been again repeated, it would have been the very case of Papillon v. Voice; but he thought Infra, § 63. otherwise. There was a direction to the trustees in that case to convey, but there was no direction here. The true guide was this, where the assistance of trustees, which was ultimately the assistance of the Court of Chancery, was prayed in aid, to complete a limitation, in that case the limitation in the will not being complete, it was a sufficient declaration of the testa tor's intention that the Court should model the limitations; but where the trusts and limitations were ex

Jones v. Morgan, 1 Bro. Rep. 206.

pressly declared, the Court had no authority to interfere, and make them different from what they would be at law.

Decreed that the plaintiff was entitled to an estate

tail.

28. Sir William Morgan devised an estate to trustees, to raise money in aid of his personal estate, for the payment of his debts; and after payment thereof, then to stand seised to the use of his son William, for and during the term of his natural life, without impeachment of waste; and from and after his decease, to the use and behoof of the heirs male of the body of his said son William, lawfully to be begotten, severally, respectively, and in remainder, one after another, as they and every of them should be in priority of birth and seniority of age; and for default of such issue, to any after-born son he might have; with a power, while in possession, of leasing, making a jointure, and raising portions for younger children.

The question was, whether William the son took an estate in tail or for life only.

Lord Thurlow said, he could not distinguish this case from that of Wright v. Pearson, with which the case of Bagshaw v. Spencer could not stand. It had been contended, that however it might be at law, it should be construed otherwise in equity, for that the whole fee was given to the trustees, as it might be necessary for the payment of the debts; but after payment of the debts the testator did not mean to leave any thing executory; no, the trustees were to stand seised to the subsequent uses. If this was not a legal estate, it was only not so because the first use might absorb the whole estate; then the only question was, whether, under the cases decided, he must consider this point as being different in the case of legal and equitable estates. In Garth v. Baldwin the construction restored the law, that trusts were to be considered in the same manner as legal estates; if that

were so, there could not be a more proper case to apply the rule than this, as there could be nothing so near a legal estate as the present: he thought therefore the same rule of construction must apply to equity, as at law; and decreed that William took an estate tail.

29. Where the Court of Chancery is called upon to direct a conveyance to be made under a will, the construction has been different; of which an account will be given hereafter.

Lowdell,

253.

30. The rule in Shelley's case has been applied in And in devises of copy holds. the construction of devises of copyholds. As where a person who had surrendered a copyhold to the use of his will, devised it to B. for life, and after his death, Lawsey v. to the heirs of his body begotten. It was held that 2 Rol. Ab. the word heir being nomen collectivum, was equivalent to the word heirs, in the plural number, and so B. took a fee executed; and his heir should have it by descent, and not by purchase. But Lord C. B. Gilbert has ob- Ten. 270. served on this case, that it must have been meant of a fee tail, because the heirs were restrained to the body of B.

1 Stra. 445.

31. In ejectment, Lord Ch. J. Pratt ruled this case: Busby v. A. surrendered a copyhold estate to the use of his Greenslate, will, and then devised it to B. for life, and after his decease to the heirs of his body. B. died in the lifetime of the testator. It was held that his heir could take nothing; for it was a devise in tail to B.; the words, heirs of his body, being words of limitation. 32. The rule in Shelley's case has also been applied And in wills of in the construction of wills of terms for years. Therefore if a term be given to A. for life, and afterwards Dod v. Dickinto the heirs of his body, these words are generally 451. pl. 25. construed to be words of limitation, and the whole vests in the first taker. But if there appear any cir

terms for years.

son, 8 Vin. Ab.

cumstance or clause in the will to show the intention that these words should be words of purchase, and Fearne, Ex. not of limitation, then it seems the ancestor will take Dev. 300. for life only, and his heir will take by purchase.

The rule not applied to the

words sons er children.

33. The rule in Shelley's case does not apply to the words sons or children. And therefore a devise to A. Tit. 32. c. 22. for life, with remainder to his first and other sons, or to his sons or children, gives to A. only an estate for life, and his sons or children will take by purchase.

1 Vent. 231.

Ginger v. White,

Willes, 348.

Ante, c. 12.

-Goodtitle v.
Wodhull,

Willes, 592.

34. Thus Lord Hale has cited a case stated in 1 Roll. Ab. 837. pl. 13., where a person devised to his eldest son for life, et non alitèr; and after his decease to the sons of his body: it was held to be an estate for life only in the son. And the usual mode of creating a strict settlement by will is, to devise to the eldest son for life, with remainder to his first and other sons severally and successively, and to the heirs male of the bodies of such first and other sons; remainder to the other sons of the testator in the same manner.

35. A person devised his estate to his son for life, and after his decease to the male children of the said son, successively one after another as they were in priority of age, and to their heirs; and in default of such male children, he gave the same to the female children of the said son, and their heirs; and in case the said son should die without issue, then he devised the premises to his grandson in fee.

It was resolved, 1. That the devisee did not take an immediate estate tail by the devise to his male and female children; and 11. That under the words, "in case the said son should die without issue," he did not take an estate tail by implication in remainder, after the limitation to his children.

36. A will was made in these words: "My will is that my son shall have and enjoy the manor of B. only for his life, and then the premises shall descend and come to his male children, if he have any, for their natural lives only, and to the male children descending from them."

It was resolved that the son took an estate for life

only.