III. Where some words of explanation were annexed by the devisor himself to the word heirs in a will, whereby he discovered a consciousness, distrust, or apprehension, that he might have used the word improperly, and not in its legal meaning, and therefore he in a manner retracts it, he corrects the inaccuracy of his own phrase, and tells every reader of his will how he would have it understood. Iv. Where the testator superadded fresh limitations, and grafted other words of inheritance upon the heirs to whom he gave the estate; whereby it appeared, that those heirs were meant by the testator to be the root of a new inheritance, the stock of a new descent, and were not considered merely as branches derived from their own progenitor. The evidence of intent, in this case, might be resolved into two particulars: 1. The testator's previous declared intention, that none of his children should sell or dispose of his estate for longer term than his own life. II. The interposed estate to Isaac Gale and his heirs, on which much stress could not be laid; for, if that estate had been expressly given to preserve contingent remainders (which was only a conjecture), the case of Coulson v. Coulson was an express authority, that this would not make the heir of the body a purchaser. If this was so, the introductory words were the only evidence of intent, and then the result of the whole matter was, that the testator having declared his intent that his son should not alien his lands, he, to that intent, gave his son an estate to which the law has annexed a power of alienation;-an estate to himself for life, with remainder to the heirs of his body. Now, what was a court of justice to conclude from hence? Not that a tenant in tail thus circumstanced should be barred of the power of alienation; this was contrary to fundamental principles. Not that the devisee should take a different estate from what the legal signification of the words imported; this, without other explanatory words, was contrary to all rules of con General observations on the rule. struction; but plainly and simply this, that the testator had mistaken the law, and imagined that a tenant for life, with first an interposed estate, and then a remainder to the heirs of his body, could not sell or dispose of his interest. Upon the whole, he concluded, that though it did not appear that the testator intended to restrain his son from disposing of his estate, for any longer term than his life, and, to that intent, contrived the present devise, yet it did not appear by any evidence at all, much less by declaration plain, that, in order to effectuate that purpose, he meant that the heirs of the body of his son should take by purchase, and not by descent, or even that he knew the diffeThe consequence was, that, by the legal operation of the words, which were not controlled by any manifest intent to the contrary, the heir could only take by descent, and, of course, John Williams the son was tenant in tail. rence. 72. It is observable, that in the several cases in which the question has arisen, whether the rule in Shelley's case should be applied to the construction of a will, the objection to its application has always been founded on the obvious intention of the testator, to give the first devisee no more than an estate for life; without considering that in all those cases the testator devises the remainder expectant on the determination of the first estate, to the heirs general, or special, or to the issue of the first devisee; and that it is as necessary to ascertain his intention in the second, as in the first devise. There can be no doubt but that where a common person devises his estate to A. for life, with a remainder to his heirs general, or special, or issue, he does not mean to give A. any greater estate than for his life; and as to the addition of negative words, or a devise to trustees to preserve contingent remainders, they can add nothing to the clearness of the first words. The whole difficulty therefore lies in ascertaining the intention of the testator in the second de "the true ques vise; or, as Sir W. Blackstone says, tion of intent will turn, not upon the quantity of estate intended to be given to John the ancestor, but upon the nature of the estate intended to be given to the heirs of his body;" and where the second devise is inconsistent with the first, to adopt such a construction as will best effectuate the general intent of the testator. It is for this purpose that the rule is applied; upon a principle which has been already stated, and which is fully explained by Lord Ch. J. Wilmot in his Robinson v. very able judgment in the case of Roe v. Grew; and by Lord Kenyon in several cases which have been Ante, § 55. already stated in Chapter XII.; namely, that where a testator shows a particular, and also a general intent, which are inconsistent with each other, the general intent will be established, and the particular one disregarded. Hicks, ante, c. 12. 73. In all the cases where the rule has been applied, there was a devise to A. for life, with a subsequent devise to the heirs general, or special, or issue, of A.; and the testator had a particular intent, to give an estate for life only to A., and a general intent, to give estates to all the lineal descendants of A. If the will were construed according to the particular intent, the first devisee would take an estate for life only, and the word heirs, or heirs of the body, or issue, must operate as words of purchase. But by this mode of construction the general intent that all the lineal descendants of A. should take successive estates of inheritance, either in fee, or in tail, would be defeated. For if the remainder was devised to the heirs of A. it must vest in the person who was heir general to A. at the time of his death; and in that case it could not go in succession from him, to succeeding heirs of the same 192. ancestor, not being heirs general of the first heir; but might eventually go to strangers, either in defect or Tit. 32. c. 22 exclusion of the heirs of such ancestor. If the remainder was devised to the heirs of the body of A. it Fearne's Cont. Rem. 6th ed. $4, would vest in the person who was heir of the body of A. at the time of the testator's death, and would deTit. 32. c. 21. scend to the heirs of the body of that heir; and on $36. failure of issue of that person, it would go by a quasi descent to the next person who answered that description, at the time of the failure of such issue, in conformity to Mandeville's case; so that if the devisee had several sons, the first would take an estate tail, but none of the other sons would take vested estates, while the eldest or any issue of his body were in existence. 1 Inst. 26. b. Morris v. Ward, ante, § 19. Roe v. Grew, ante, § 55. If the remainder was devised to the issue of A., the estate would vest in all his children, as joint tenants for life, and tenants in common of the inheritance. The consequence is, that in order to effectuate the general intent of the testator; which in the three cases put certainly is, that the estate devised shall go to all the lineal descendants of the first devisee, in a course 8 Term R. 519. of inheritance; and shall not go over as long as there are any such descendants remaining; the Court is obliged to apply the rule, and to construe the second devise in such a manner as to create an estate in fee or in tail in the first devisee. Ante, § 28. 74. This doctrine is fully confirmed by Lord Thurlow in his determination of the case of Jones v. Morgan, in which he concluded his judgment in these words-" By all the cases, where the estate is so given that after the limitation to the first taker it is to go to every person who can claim as heir to the first taker, the word heirs must be a word of limitation; all heirs, taking as heirs, must take by descent. In cases where I can bring it to the point, that the testator by the word heirs, as used in the will, means first, second, third, and other sons, there I change the words of the will. But here I think the word heirs was the very thing he meant. Suppose William had had a son, which son had had a son, and died, living William; the eldest son of the son would have been heir; if there had been a title he would have taken it; but the estate, if these had been words of purchase, must have gone to the second son, the devise to the first son being a lapsed devise, like the case of Warner v. White, lately in the House of Lords, from Ireland. Ante, c. 8. But Sir William Morgan meant the estate to go to whoever should be heir. I think the argument immaterial that he meant the first estate to be an estate for life; I take it that in all cases the testator does mean so; I rest it upon what he meant afterwards. If he meant that every other person who should be heir should take, he then meant what the law would not suffer him to give, or the heir to take as a purchaser. In conversing with a great authority, whom I will not name, I asked what would become, in the case stated, of the grandson; the answer was, he should take as heir. I know he might, but then he must take by descent; all possible heirs must take as heirs, and not as purchasers. Many cases have been determined on the ground of a devise to the first taker, with a remainder to the heir male in the singular, or heirs male in the plural, as in King v. Burchall, before Lord Henley, Ante. where it was in the singular number. "The rule in Shelley's case was used as a demonstra- Ante tion that it was indifferent whether the limitation was in the singular or the plural number; it was equally an estate tail. So where it is to the heir of the first taker, and to the heirs of that heir, it has been determined to be an estate tail. Indeed in all cases where the limitation is of an estate of freehold to a man, and afterwards to the heirs of his body, whether general or special, so as to give it to the heirs as a denomination or class, the heirs shall be in by descent, and not by purchase. And the case stated by Anderson in Shelley's case, of a limitation to the use of A. for life, remainder to the use of his heirs, and of their heirs female, is the only one to the contrary; and in that case the word heirs must be a description of persons, in order to let in the limitations to the heirs female." |