gotten 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. 36. It has been already stated to have been for- Tit. 32.c. 20, merly held, that where there was a limitation of a remainder in a deed to an heir special, 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. § 21. 37. A person devised to his son for life, remainder Wills v. Palmer, to his first and other sons in tail male; and for want 5 Burr. 2615, 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. 38. A devise to the heirs male of the devisor Ford v. Ossulston, only extends to the heirs male of his body, and not 11 Mod. 189 to a collateral heir; so that if the devisor has not an heir male of his body, the devise is void. Ferrers, 39. A person devised his lands to his grand- Dawes v. daughter, who was his heir at law, for her life; re- 2 P. Wms. 1. mainder to his own right heirs male, for ever; and died leaving his grand-daughter his heir at law, and 8 Vin, Ab. 317. Roe v. Quartley, 1 Term R. 630. 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. This cause came on again before Lord Hardwicke, 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. 40. 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 1 Inst. 187 a. being considered 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. Bakerv.Wall, 41. It was held in a case in 9 Will., that a special 1 Ld. Raym. heir, though he was not heir general, might take by 185. Pugh v. 3 Bro. Parl. 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. 42. 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. 43. The word issue is a sufficient designatio per- The word sona, or description of a devisee in a will; and com- Issue. prises both children and grandchildren. 44. A devise was made to the issue of I. S. who Cook v. Cook, 2 Vern. 545. had then a daughter living, and afterwards had a son born. The question was, who should take. Lord Cowper said, that all the children should take, and even grandchildren, if there had been any: and although the devise was to the issue begotten, that made no difference; the words begotten, and to be begotten, were the same, as well in the construction of wills, as settlements, and take in all the issue after begotten; and though, upon the death of the testator, there was then only a daughter born, yet upon the birth of another child the estate should open, and take in an after-born son. The words 45. In the case of Loddington v. Kime, a devise Tit. 16. c. 1. $55. to the issue male of E. Armyn, and his heirs for ever, i Ld. Raym. was held to be a good description of the person, and 205. a word of purchase. 46. The words sons, children, relations, and de- Sons, Chilscendants, are sufficient to describe the devisees in tious, &c. a will; provided they can be applied with certainty Doe v. Bagto persons answering such descriptions. dren, Rela shaw, 6Term R. 512. Darrell, 47. Lands were devised to the first son of A. who Marwood v. was not heir at law to A. his father. This was held Cases temp. a good description of the second son. Hardw. 91. Holmden, 48. A person devised to his son Caleb for life, and Lomax v. after his decease to the first, second, third, &c. sons of his body begotten. Caleb had married about two months before the date of the will; he had a son who died soon, and afterwards had another son. Lord Hardwicke decreed, that the second son should take under the will, as first son; for these words were not to be always taken strictly in the sense Tit. 32. c. 21. § 15. Doe v. 1 Maule & Pyott v Pyott, of primogenitus, or first-born; but in the sense of an elder son, senior or maximus natus. 49. It has been stated, that in deeds, as the word procreatis extends to issue born after the execution of the deed, so the word procreandis will extend to issue born before. This mode of construction is of course extended to wills, in which the words to be begotten, and begotten, have the same sense; and in the preceding case Lord Hardwicke held that doctrine, which has been confirmed in a modern case. 50. A person devised her real estate to trustees, in trust for her daughter Martha, with a proviso, that if she died before 21, or marriage, then in trust to convey all the residue of her estate, both real and personal, unto her nearest relation of the name of the Pyotts; and to his or her heirs, executors, administrators, and assigns. The daughter died under age and unmarried. At the time of the will, and death of the testatrix, her nearest relations of the name of Pyotts were the plaintiff Charles Pyott, and his sisters the defendants Ann and Blanche, who were both then unmarried, but were married at the time of Martha's death. They had besides these another sister, Caroline, who had been married many years before the testatrix's death, and was no party to the suit. The plaintiff had also had an elder brother John, who died before the testatrix, but left issue a son, Richard Pyott, who survived both the testatrix and her daughter, and was heir at law on the part of the mother to the testatrix; and to whom the trustees, after the daughter's death, conveyed the estate in question. This Richard Pyott devised the premises to trustees, in trust for the defendant Pyarea Pyott his wife, and E. Wilmot. The plaintiff by his bill claimed the testatrix's estate, as the nearest relation of the name of Pyott. The defendants Ann and Blanche, the plaintiff's sisters, insisted that they were entitled equally with the plaintiff; as they were both unmarried, and of the name of Pyott, at the time of the will, and death of the testatrix. And the defendant Pyarea Pyott and E. Wilmot, who stood in the place of Richard Pyott the heir at law, insisted that either he was the person meant by the nearest relation, or else that the devise was void for uncertainty; and so the premises descended to him, as heir to the testatrix on the part of her mother. Lord Hardwicke said, the first question was, whether the devise was absolutely uncertain, and he thought it was not. It was said, that by the words nearest relation, the testatrix meant some single person; but he was of opinion that the word relation here was to be taken as nomen collectivum, as much as kindred or heir. Suppose the devise had been to her nearest kindred, no doubt that it would have taken in several persons: wills and acts of parliament, Lord Coke tells us, were to be taken according to common parlance, and the word relation was often used instead of kindred, it being common to say, such an one has a numerous relation, whereby were meant many; and it was good English. But the present case differed from all that had been cited, because the personal estate was involved in the same devise with the real, and had this been a bequest only of personal estate, all those who were of the name of the Pyotts in an equal degree, and were of the nearest stock to the testatrix, would have taken by virtue of the statute of distributions; and if it was clear who should take the personal estate, it naturally inferred |