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Doe v.
Burnsall,

6 Term R.

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wise added, “and to their heirs and assigns for ever to be divided equally share and share alike." Nay, he went farther, "as tenants in common and not as joint-tenants." But this could not be, if they were to take in a course of gavelkind descent, for in such case they must take as coparceners. Upon the whole, as no man could doubt of the testator's intention, and as this was the only method of effectuating it, and as there was no rule of law that prevented heirs taking as purchasers, where the intention of the testator required it, so he was of opinion that the words, heirs of the body, were words of purchase. Judgment was given accordingly.

42. A person devised to his niece M. O. and the issue of her body, lawfully to be begotten, as tenants in common if more than one; but in default of such Doe v. Elvey, issue, or being such, if they should all die under the age of 21, and without leaving lawful issue of any of

30.

4 East, 313.

Doe v. Goff,

11 East, 668. their bodies, then over.

What words

for Years.

Tit. 8. c. 2. $27.

The Court of K. B. held, that the niece only took an estate for life.

43. An estate may be devised to a person for a create a Term term for years, as well as for any freehold estate; and it has been stated in a former title to have been held, that a devise of lands to a person and the heirs of his body for 500 years, would determine by the death of the devisee without issue; but that this doctrine had been altered, and it was settled that such a term would continue for the 500 years, and vest in the executors of the devisee.

Tit. 8. c. 1. § 7.

44. It has also been stated, that a devise to executors for payment of debts creates an estate for years; and also a devise till such time as a particular sum shall be raised out of the rents and profits of the lands devised.

certain

45. With respect to uncertain interests, if a man And undevises lands to his wife till his son comes of age, to Interests. provide his children with necessaries, this interest Smith v. Havens, does not determine by the death of the wife, but goes Cro. Eliz.252.

to her executors.

221.

46. If the devise had been that his lands should An. 2 Leon. descend to his son, but that his wife should have the full profits till his son came of age, for his maintenance; here nothing being given to the wife but a mere confidence, her interest would determine with her death.

47. In a case which has been already stated, it Mansfield v. Dugard, was resolved that the wife's estate determined by the Tit. 16. c. 1. death of the son. § 84.

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7. Though the Limitation to the 45. Or to Heirs with Words limit

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16. Where there are superadded 52.

words to the word Heirs.

21. In Devises of Trust Estates.
29. In Devises of Copyholds.
31. In Devises of Terms for Years.
32. The Rule not applied where
the Limitation is to Sons or
Children.

ing an Estate of a par-
ticular Nature.

Or to the Heir for Life.
Or to Issue with Words of Li-

tation.

Unless the general Intent

require a different Con

struction.

56. Or where a Trust is created and a Conveyance directed. 65. Or where the Estates are of different Natures.

69. Case of Perrin v. Blake. 37. Or to Heirs with Words of 71. General Observations on the

Explanation.

SECTION 1.

Rule.

Applied in
Devises of
LegalEstates.

THE

HE rule laid down in Shelley's case, of the origin and nature of which an account has been already Tit. 32. c. 22. given, having been established for purposes of general utility, has been adopted in the construction of devises, as well as in that of deeds. But it being a principle of law that the intention of the testator is to be the chief guide in the expounding of devises, it has been often doubted how far the application of

this rule should be extended, in contradiction to the particular intention of the testator.

It has, however, been uniformly determined, in all cases of devises of legal estates, that wherever lands are given to a person for life, or for any greater estate, with an immediate remainder to the heirs, or heirs of the body of such devisee, the word heirs, or heirs of the body, shall operate as words of limitation, and give the devisee an estate in fee, or in tail.

2. A person devised lands to his son John, to hold Rundale v. to the said John for life, and after his decease, then Eeley, Cart. 170. to the use and behoof of the heirs male of his body; and for default of such issue, to his son Robert and the heirs male of his body.

It was resolved that the first words created an estate tail, as well in a will, as in any other conveyance. The estates could not stand together, but the estate for life was swallowed up in the estate tail.

3. Although it should appear from other circumstances, besides an express devise for life, that the testator did not intend to give the first devisee a greater estate, such as a power to settle a jointure, with the concurrence of trustees; or an interposed estate to trustees to preserve contingent remainders; or a clause that the devisor's estate should be without impeachment of waste; yet the courts have applied the rule, and given the devisee an estate of inheri

tance.

4. A person devised lands to trustees and their Broughton v. heirs, to the intent and purpose that they should Langley, 2 Ld. Raym. permit and suffer A. to receive and take the rents 273. and profits for and during the term of his natural Tit. 12. c. 1. $ 14. S.C. life; and after his decease should stand seised of the same lands to the use of the heirs of the body of A.;

Papillon v.
Voice,

2 P. Wms.
471.

Sayer v.
Masterman,
Amb. 344.

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with a proviso that the trustees and A. might make a jointure for his wife.

It was determined that A. took an estate tail.

5. Lands were devised to B. for life, without impeachment of waste, remainder to trustees and their heirs during the life of B. to support contingent remainders, remainder to the heirs of the body of B., remainder over.

Sir J. Jekyll was of opinion that an estate for life only passed to B., with remainder to the heirs of his body, by purchase. But upon an appeal to Lord King, he said the remainder to the heirs of the body of B. was within the general rule, and must operate as words of limitation, and consequently create a vested estate tail in B.; and that the breaking into this rule would occasion the utmost uncertainty.

6. A person devised in these words,—“I give to my loving brother G. S. and the heirs of his body, the males having preference, and succeeding according to their births; and to preserve contingent remainders from being barred during the life of the said G. S., I give the said estates and farms to my friend Doctor R.; and on failure of issue of the said G. S., I give the said estates and farms to my niece." The cause came on to be heard before Lord Hardwicke, who directed a case to be made for the opinion of the Judges of the K. B. Afterwards, upon his resigning the great seal, Lords Commissioners Willes, Smythe, and Wilmot succeeding to it, application was made to them to hear the cause, which they consented to do, considering themselves as judges at law, though sitting in a court of equity.

Lord Commissioner Wilmot said, the reason of the rule in Shelley's case, that where one takes an estate of freehold, and after an estate is limited to the heirs

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