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male of his body, the heirs male must take by descent, and not by purchase, was to secure to the lord his fruits on descent, and had long since ceased. But it had been better if that rule had never been broke in upon. He was not for breaking in upon it farther. He could not find any case where the words, heirs of the body, in the plural number, and no words superadded, had been considered as words of purchase, and referred to Lord King's opinion in Papillon v. Voice, that the limitation to trustees did not control the estate tail.

The Court declared that G. S. was entitled to an estate tail.

7. Where the remainder to the heirs, or heirs of Though the the body, of the devisee for life, is only mediate, by Limitation to only mediate, by the Heirs be the interposition of some other estate, the devisee only mediate. will take an estate in fee, or in tail, in remainder take effect in possession, upon the determination of the interposed estate; and the estate for life is not merged in the remainder.

; to

2 Atk. 247.

8. R. Bromley being entitled to a reversion in Coulson v. fee in certain lands, expectant upon the death of Coulson, Elizabeth Foster, devised the same to Robert Coulson for life, remainder to trustees during his life, to preserve contingent remainders, remainder to the heirs of the body of the said Robert Coulson, remainder over.

The question was, what estate Robert Coulson took under this devise; and the case having been sent by the Chancellor (Lord Hardwicke ) to the Court of K. B., the Judges of that Court sent the following certificate:-"We have heard counsel in the question referred by your Lordship to us; and as appears by the state of the case, there is, after the determination of the estate for life of Robert Coulson,

it

MSS. Rep.

ante, c. 8. § 26.

a devise to J. B. and R. R. and their heirs, for and during the life of Robert Coulson, we are of opinion that by reason of the remainder interposing between the devise to Robert for life, and the subsequent limitation to the heirs of his body, the said Robert took an estate for life, not merged by the devise to the heirs of his body; but by that devise an estate tail in remainder vested in the said Robert."

Against this certificate the counsel cited 2 Roll. Ab. 418. pl. 4 & 5., to prove the remainder to the heirs of the body contingent. But after looking into the book, Lord Hardwicke paid no regard to it; and decreed according to the opinion of the Judges.

9. In the case of Hodgson v. Ambrose, which has been already stated, there was a devise to Elizabeth Belchier and Catherine Jolland, in the same words as in the case of Coulson v. Coulson; a case was made for the opinion of the Court of K. B. upon the following question:-" Whether Catherine Belchier, the daughter of Elizabeth Belchier, took any, and what estate under the will of Susan Jolland; and, secondly, what estate Catherine Jolland took under the said will."

The Judges of the Court of King's Bench gave their opinion in the following words: "As to the question whether Elizabeth would have taken an estate tail, whatever our opinions might be if the case were new, we think, as the case of Coulson v. Coulson is literally the same, the precise question ought not to be again litigated; and by that authority we are bound to say, in the words of the certificate in that case, that as it appears by the state of the case that there is, after the determination of the estate for life to Elizabeth Belchier, a devise to W. A. and J. P. and their heirs, for and during the

life of Elizabeth Belchier, we are of opinion that Elizabeth Belchier, if she had survived the testatrix, would have taken an estate for life in the premises devised to her, not merged by the devise to the heirs of her body; but by that devise an estate tail in remainder would have vested in the said Elizabeth; and that Catherine Jolland took an estate for life in all the devised premises, not merged by the devise to the heirs of her body; but by that devise an estate tail in remainder vested in the said Catherine Jolland."

The Court having decreed in conformity to this certificate, an appeal was brought in the House of Lords, where the following question was put to the Judges: "What estate Catherine Hodgson took under the will?" And the Lord Ch. Baron of the Exchequer having delivered the unanimous opinion of the Judges present, "That Catherine Hodgson took an estate for life in all the premises, not merged by the devise to the heirs of her body; and that by that devise an estate tail in remainder vested in the said Catherine;" it was ordered and decreed, that the appeal should be dismissed and the decree affirmed. 10. Though no estate for life be expressly devised, but only arises from a necessary implication, yet the rule will be applied.

11. I. Foorde made his will, having then two sons, Rawlinson and William, and a brother Nicholas, who had then also two sons, James and Nicholas, and gave his real estate to his eldest son Rawlinson at his age of twenty-three, to enjoy the whole during his life. "And the whole estate, of which he is only tenant for life, shall after his decease go to his eldest son that shall be then living; and if he dies without any son or sons to enjoy it during their lives (of which none

Though the
Estate for
Life arise by
Implication.
Hayes v.
Foorde,

2 Black, R.

698.

are or shall be tenants but while they live to enjoy it), that then it shall come to his brother William Foorde during his life, and to any of his heirs males during their lives, and no longer; and if they die without issue male, then to the heirs male of my brother Nicholas Foorde's sons, and to any of their heirs male during their lives (of which none of them are tenants any longer, nor shall it be in any of their powers to sell, dispose, or make away any part or the whole of it); and in case they all die without heirs male, then it is to go to the next of kin of me.”

At the same time, and with the same solemnities, the testator published a schedule referred to in the said will, and which the special verdict found to be part of his will, containing a very particular account of all his real and personal estate; the title to which schedule was in these words, "An account how I dispose of my estate to my son Rawlinson Foorde, as followeth :-He paying his mother out of my real estate the sum of 15l. per annum during her life, and 241. per annum out of my mortgages, and then all to revert to my son Rawley Foorde, during his life; and after his death to his sons; and for want of sons, to his brother William Foorde, during his life, and afterwards to William Foorde's eldest son; and for want of his having sons, to my brother Nicholas Foorde's sons, and for want of any eldest sons, to my sons' daughters, and so to the next of kin.".

Wil

Rawlinson and William, the two sons of the testator, died without issue male; James the eldest nephew died before William the son; and upon liam's death, the youngest nephew entered, and suffered a recovery. The question was, whether Nicholas the nephew took an estate for life, or in tail, under the will and schedule.

The Court of K. B. in Ireland was of opinion that he took only an estate for life.

Upon a writ of error to the Court of K. B. in England, Lord Mansfield delivered the opinion of the Court, that the only doubt was, whether by the words of the will, Nicholas, the nephew of the testator, took any estate by implication. That this doubt was removed by the schedule, which expressly gave an estate to the sons of his brother Nicholas Foorde; that therefore Nicholas the nephew took an estate for life by implication, thus explained, which being conjoined to the estate expressly given to his heirs males, would, by the known rules of law, give him an estate in tail male. Judgment was given accordingly.

11. Although the limitation be to the heir, in the singular number, yet the rule will be applied; and the devise will be construed an estate tail.

Where the

word Heir the singu.

in

lar number is used.

Case, 1 Vent.

12. Thus, Lord Hale says, it was adjudged in 43 Burley's Eliz. that a devise to A. for life, remainder to the 230. next heir male, and for default of such heir male, then to remain over, was an estate tail.

13. A person devised lands to his youngest son for Wilkins v. Whiting, ever, and after his death, to the heir male of his body 1 Roll. Ab. for ever; and for default of such heir male, to E. his 836. Bulst. eldest son for ever. It was resolved, that the young- 324. est son took an estate tail.

219. 2 Vern.

14. In a case cited by Mr. Robinson in his Custom Miller v. of Gavelkind, there was a devise to Serjeant Miller Rob. Gav. 96. Seagrave, and his wife for their lives, remainder to the next heir male of their two bodies. It was held that this was a devise in tail: for a devise to the heir male was a devise in tail, unless there were words of limitation superadded, so as to bring it within the VOL. VI.

A a

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