37. A person devised a house to his son for his life, and after his death unto all and every his children equally, and to their heirs; and in case he died without issue he gave the premises to his daughters. It was admitted that the son took an estate for life

only.

38. Where an estate is devised to a person for life, with remainder to his heirs, or to the heirs of his body, and there are words of explanation annexed to the word heirs, from whence it may be collected that the testator meant to qualify the meaning of the word heirs, and not to use it in a technical sense, but as á description of the person or persons to whom he intended to give his estate, after the death of the first devisee; the word heirs will in that case operate as a word of purchase.

Herring,

39. A person devised to trustees, to the use of and Goodtitle v. in trust for her sister Margaret Davie and her assigns, 1 East, 264. during her natural life, without impeachment of waste, remainder to the same trustees to preserve contingent remainders; and from and after her decease, then to the use of and in trust for the heirs male of the body of the said Margaret to be begotten, severally, successively, and in remainder one after another as they and any of them should be in seniority of age and priority of birth, the elder of such sons, and the heirs male of his body lawfully issuing, being always preferred and to take before the younger of such son and sons, and the heirs male of his and their body and bodies; and for want and in default of such issue, then to the use of and in trust for all and every the daughter and daughters of the body of the said Margaret to be begotten, to be equally divided amongst them, if more than one, share and share alike, to take as tenants in common and not as joint tenants, and of the several and respective heirs of the body and bodies of such daughter and daughters; and in default of such issue, remainder over.

Ante, § 8.

Infra.

Lord Kenyon said he had not the smallest doubt upon the case. The intention was most obvious to give the first taker only an estate for life; but if that intention could not be carried into effect, without shaking a positive rule of law, he should certainly bow to the decisions. The case of Coulson v. Coulson went on the same ground, and so afterwards did Perrin v. Blake in the exchequer Chamber, where the judges thought, that after the rule of law in Shelley's case had governed so many subsequent decisions, however imperfect in itself as a rule for construing the intention of a testator, it was necessary to abide by it. That rule, however, was only established to the extent in which it was to be found in

Shelley's case, to this effect, that if an estate of free1 Rep. 104. b. hold be given to a man, and either mediately or imme

Ante, c. 13.

Idem, § 41.

1

A

diately, in any part of the same instrument, an estate was limited to the heirs of his body, the latter limitation would unite with the former, and give him an estate tail. But it never had been decided that those words might not be otherwise explained in the will by the testator himself. They were so explained in Lowe v. Davis. The estate which was subject of dispute in that case, came afterwards to a gentleman who was not perfectly satisfied with the decision, and would have canvassed it again. His doubts were founded upon an old opinion which he had discovered 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 he had seen, but it was certainly too strait-laced a construction, and nobody had ever doubted but that the case of Lowe v. Davis was rightly decided. That case however, if it wanted confirmation, had been fortified by the subsequent determination in Doe v. Laming; the Court there clearly thought that the subsequent words, as well females as males, showed 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, and not to be words of limitation; and therefore in this case Margaret took only an estate for life.

Mr. Justice Lawrence said, the question was, whether the words, heirs male of the body of Margaret, were descriptive of the persons whom the testatrix afterwards called son or sons; for of the intention there could be no doubt. She first gave Margaret an express estate for life, without impeachment of waste, then to trustees to preserve contingent remainders, then, after Margaret's decease, to the heirs male of her body to be begotten, severally, successively, and in remainder one after another, &c. All this was unnecessary if the testatrix meant to give Margaret an estate tail; but then she went on,-" the elder of such sons and the heirs male of his body to be preferred before the younger of such son and sons;" evidently meaning the same persons whom she had before described as heirs male of the body of Margaret: therefore this fell directly within the case of Lowe v. Davis, and was the same as if the testatrix had said, by heirs male of the body I mean the eldest son and other son and sons of Margaret; and if she had said so in as many words, it could not be questioned, but that the former words must have had that construction put upon them: now the words made use of were in effect the same. Then the testatrix proceeded to give an estate to the daughters of Margaret in the same manner; that also showed that by the words such son and sons, she meant the same persons whom she had before described as the heirs male of Margaret; for she first provided for the sons, and then for the daughters of the first taker. It was no answer to say that by this construction, if the eldest son of Margaret had died in the lifetime of the testatrix, leaving a son, the devise would have

lapsed, and the grandson been disinherited; for if the obvious meaning of the will was that Margaret should only take for life, they could not enlarge that estate, in order to prevent a possible inconvenience.

Judgment was given that Margaret took only an estate for life. And upon a writ of error from this judgment of the House of Lords, the following question was put to the Judges: What estate Margaret Davie took? The Lord Ch. B. delivered their unanimous opinion, that Margaret Davie took an estate for life. Whereupon the judgment was affirmed.

40. In a subsequent case, which is nearly similar to the last one, the Court of Common Pleas did not think it could restrain the legal effect of the words heirs of the body, so as to convert them into words of purchase.

41. Lands were devised to trustees and their heirs, to the use of them and their heirs, in trust for the use and benefit of the testator's first son during his life, and also upon trust to preserve the contingent remainders from being defeated or destroyed; and after his decease to the several heirs male of such first son lawfully issuing, so as the elder of such sons and the heirs male of his body should always be preferred and take before the younger, and the heirs male of his body; and for want of such issue, in trust for his second, third, fourth, and all and every other son and sons, for their respective lives, with remainders as before; and for want of such issue in trust for his first daughter, and every other his daughter and daughters, for their several and respective lives; and also upon trust to preserve the contingent remainders from being defeated and destroyed; and from and after their several deceases, in trust for the several heirs male of their several and respective bodies lawfully issuing, so as the elder of such daughters and the several heirs male of her body should always be preferred and take before the

younger of the same daughters, and the heirs male of her and their bodies: with power to the persons who should be entitled to the possession of his said estates to settle jointures.

The testator died leaving a son, and the question upon a case sent out of Chancery to the Court of C. B., was, what estate that son took under the will.

The Judges of the Court of Common Pleas certified to the Lord Chancellor, that if the devises contained in the will, to the children of the testator and their issue, had been devises of legal estates, the only son of the testator would have taken an estate in tail male; there not appearing upon the whole will together sufficient indication of the testator's intention to restrain the legal effect of the words, heirs male of the body, and to convert them into words of purchase.

heir, with

Archer's case,

42. Where words of limitation are superadded to or to the word the word heir, in the singular number, from which it words of limiappears to have been the intention of the testator to tation. denote, by the word heir, a new stock and root of inheritance, it will be construed a word of purchase; and the first devisee will only take an estate for life. 43. F. Archer devised lands to Robert Archer the father, for his life, and afterwards to the next heir male of Robert, and the heirs male of the body of such next heir male. It was agreed by Anderson, Walmsley and the rest of the Court, that Robert had but an estate for life; because he had an express estate for life devised to him, and the remainder was limited to the next heir male of Robert, in the singular

number.

1 Rep. 66. b.

Moo, 593.

44. A man devised land to Rose his daughter for Clarke v. Day, life, and if she married after his decease, and had issue of her body, then he willed that her heir after his daughter's death should have the land, and to the heirs of their bodies begotten.

It appears by the various reports of this case which