Moon v., probable one; for the title of the heir at law being Willes R. 141. 1 Ves. & Beam. 466. ante, c. 9. § 16. Bro. Ab. plain and obvious, no words in a will ought to be construed in such a manner as to defeat it, if they can have any other signification. And Lord Eldon has said-" With regard to that expression necessary implication,' I will repeat what I have before stated from a note of Lord Hardwicke's judgement in Coryton v. Hillier; that in construing a will, conjecture must not be taken for implication; but necessary implication means, not natural necessity, but so strong a probability of intention, that an intention contrary to that which is imputed to the testator cannot be supposed." 20. The first case in which a devise by implication was allowed, arose in 13 Hen. VII. A man devised his goods to his wife, and that after her decease his son and heir should have a certain house. It was determined that this was a good devise of the house to the wife for life, by implication; for by the exwords of the will the heir was not to take it till Dyer v.Dyer, after the death of the wife; therefore if she did not 1 Merevale take it, no one else could. 414. Higham v. Cro. Eliz. 15. Smartle v. 2 Lev. 207. press 21. It was also formerly held, that a devise to a stranger, after the death of the devisor's wife, would give the wife an estate for life by implication. But this determination has been repeatedly contradicted; because in this case two implications arise, the one, that the testator meant his lands should go to his wife; the other, that they should descend to his heir: and therefore the implication in favour of the wife being only a possible, and not a necessary one, the title of the heir must prevail. 22. A person devised to A. and his heirs, after T. Jones, 98,the death of the devisor and his wife. It was determined that the wife took nothing, but that the lands should descend to the heir, during her life. 1 Vern. 21. 28. A copyholder devised underwoods to I. S. for Fawlkener v. twenty years after the death of his wife, to raise Fawlkener, portions for his younger children. The question was, whether the wife took an estate for life by implica tion. Lord Nottingham said, where such a devise was made to the heir, there indeed an estate should arise to the wife by implication; but where it was devised to a stranger, as in this case, there, in the mean time, it should descend to the heir. 24. A person having issue a son, who was his heir apparent, and two daughters, devised in these words: "If it happens my son B. and my two daughters to die without issue, then all my lands shall be and remain to my nephew D. and his heirs." It was held, 1°. That no express estate was by this will given to his children. 2°. That they did not take any estate by implication; because then it must either be a joint estate for life, with several inheritances in tail, or several estates tail in succession. The last it 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. 25. 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, Gardner v. Sheldon, What words describe the Devisees. necessary to Gyens v. Pitcairne, Bate v. Amherst, and to distinguish them from all others, will be sufficient. Nihil facit error, nominis, cum de corpore constat. 26. A devise was to Margaret the daughter of W. K. The daughter's name was Margery. It was held she should take; quia constat de persona. 27. 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. 28. A person devised all his lands in Kent and T. Raym. 82. 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 River's case, 1 Atk. 410. L marry. 29. A person devised an equal share of his estate to his two sons, James and Charles Rivers. Lord Hardwicke said, the question was, whether as it appeared that James and Charles were two illegitimate children, 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. v. Adam, 422. 30. It was held in a late case, that under a devise Wilkinson by a married man, having no legitimate children, 1 Ves. & B. "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. Id. 469. But in a subsequent case Lord Eldon held, that under Swaine v. the description of children in a will, illegitimate chil- Kennerly, dren, 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. 31. In consequence of the rule of law that nemo The word 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 adjudged good; where the word heir has been qualified by the words now living, or some other circumstances have appeared in the will, to manifest the testator's intention. Heir. Durdant, 2 Vent. 311. 32. A person devised to a trustee and his heirs, in Burchett v. 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. 1 P. Wms. 33. A person devised the remainder of all his Beaumont, estate to the heirs male of the body of his aunt Eliza 229. beth Long, lawfully begotten; and gave a legacy of 1007. 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. A writ of error was brought in the House of Lords, 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. 34. A person devised to his son Richard Brooking, his heirs male, and to the heirs of his daughter Margaret 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. 35. 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, be |