another, as they and every of them should be in priority of birth and seniority of age; and for default of such issue, to any after-born son he might have; with a power, while in possession, of leasing, making a jointure, and raising portions for younger children. The question was, whether William the son took an estate in tail or for life only. Lord Thurlow said, he could not distinguish this case from that of Wright v. Pearson, with which the case of Bagshaw v. Spencer could not stand. It had been contended, that however it might be at law, it should be construed otherwise in equity, for that the whole fee was given to the trustees, as it might be necessary for the payment of the debts; but after payment of the debts the testator did not mean to leave any thing executory; no, the trustees were to stand seised to the subsequent uses. If this was not a legal estate, it was only not so because the first use might absorb the whole estate; then the only question was, whether, under the cases decided, he must consider this point as being different in the case of legal and equitable estates. In Garth v. Baldwin the construction restored the law, that trusts were to be considered in the same manner as legal estates; if that were so, there could not be a more proper case to apply the rule than this, as there could be nothing so near a legal estate as the present: he thought therefore the same rule of construction must apply to equity, as at law; and decreed that William took an estate tail. 28. Where the Court of Chancery is called upon to direct a conveyance to be made under a will, the construction has been different; of which an account will be given hereafter. Lawsey v. 29. The rule in Shelley's case has been applied In Devises of Copyholds. in the construction of devises of copyholds. As where a person, who had surrendered a copyhold to the use of his will, devised it to B. for life, and Lowdell, after his death to the heir of his body begotten. It 2 Roll. Ab. 253 pl. 4. was held that the word heir, being nomen collectivum, was equivalent to the word heirs, in the plural number; and so B. took a fee executed; and his heir should have it by descent, and not by purchase. And Lord Ten. 270. C. B. Gilbert has observed on this case, that it must have been meant of a fee tail, because the heirs were restrained to the body of B. 30. In ejectment Lord Ch. J. Pratt ruled this case: A. surrendered a copyhold estate to the use of his will, and then devised it to B. for life, and after his decease to the heirs of his body. B. died in the lifetime of the testator. It was held that his heir could take nothing; for it was a devise in tail to B.; the words, heirs of his body, being words of limitation. Busby v. Greenslate, 1 Stra. 445. 31. The rule in Shelley's case has also been ap- In Devises of plied in the construction of devises of terms years; and therefore if a term be devised to A. Years. Ab. 451. for Terms for for Dod v. Dicklife, and afterwards to the heirs of his body, these inson, 8 Vin. words are generally construed to be words of limita- pl. 25. tion, and the whole vests in the first taker. But if there appears any other circumstance or clause in the will to show the intention that these words should be Fearne, Ex. words of purchase, and not of limitation, then it Dev. 300. seems the ancestor will take for life only, and his heir will take by purchase. 32. The rule in Shelley's case does not apply to the words sons or children; and therefore a devise to A. for life, with remainder to his sons or children, or to his first and other sons, or children, gives to A. an estate only for life. The Rule to Sons or Tit. 32. c. 22. § 38. 1 Vent. 231. Ginger v. White, Willes, 348. 33. Thus Lord Hale has cited a case stated in 1 Roll. Ab. 837. pl. 13, where a person devised to his eldest son for life, et non aliter; and after his decease to the sons of his body: it was held to be an estate for life only in the son. And the usual mode of creating a strict settlement by will is, to devise to the eldest son for life, with remainder to his first and other sons severally and successively, and to the heirs male of the bodies of such first and other sons; remainder to the other sons of the testator in the same manner. 34. A person devised his estate to his son for life, and after his decease to the male children of the said son, successively one after another as they were in priority of age, and to their heirs; and in default of such male children, he gave the same to the female children of the said son, and their heirs; and in case the said son should die without issue, then he devised the premises to his grandson in fee. It was resolved, 1st. That the devisee did not take an immediate estate tail by the devise to his male and female children; and 2d. That under the words," in case the said son should die without ante, c. 12. issue," he did not take an estate tail by implication in remainder, after the limitation to his children. Goodtitle v. Goodright v. Doug. 264. 35. A will was made in these words: "My will is that my son shall have and enjoy the manor of B. only for his life, and then the premises shall descend and come to his male children, if he have any, for their natural lives only, and to the male children descending from them." It was resolved that the son took an estate for life only. 36. A person devised a house to his son for his life, and after his death unto all and every his chil dren equally, and to their heirs; and in case he died without issue he gave the premises to his daughters. It was admitted that the son took an estate for life only. with Words 37. Where an estate is devised to a person for life, Or to Heirs with remainder to his heirs, or the heirs of his body, of Explanaand there are words of explanation annexed to the tion. word heirs, from whence it may be collected that the testator meant to qualify the meaning of the word heirs, and not to use it in its technical sense, but as a description of the person or persons to whom he intended to give his estate, after the death of the first devisee; the word heirs will in that case operate as a word of purchase. Herring, 1 East, 264. 38. A person devised to trustees, to the use of Goodtitle v. and in trust for her sister Margaret Davie and her assigns, during her natural life, without impeachment of waste, remainder to the same trustees to preserve contingent remainders; and from and after her decease, then to the use of and in trust for the heirs male of the body of the said Margaret to be begotten, severally, successively, and in remainder one after another as they and any of them should be in seniority of age and priority of birth, the elder of such sons, and the heirs male of his body lawfully issuing, being always preferred and to take before the younger of such son and sons, and the heirs male of his and their body and bodies; and for want and in default of such issue, then to the use of and in trust for all and every the daughter and daughters of the body of the said Margaret to be begotten, to be equally divided amongst them, if more than one, share and share alike, to take as tenants in common and not as joint tenants, and of the several and respective heirs of the body and bodies of such ante, § 8. infra. daughter and daughters; and in default of such issue, remainder over. Lord Kenyon said he had not the smallest doubt upon the case. The intention was most obvious to give the first taker only an estate for life; but if that intention could not be carried into effect, without shaking a positive rule of law, he should certainly bow to the decisions. The case of Coulson v. Coulson went on the same ground, and so afterwards did Perrin v. Blake in the Exchequer Chamber, where the Judges thought, that after the rule of law in Shelley's case had governed so many subsequent decisions, however imperfect in itself as a rule for construing the intention of a testator, it was necessary to abide by it. That rule, however, was only established to the extent in which it was to be found in Shelley's case, to this effect, that if an estate of 1 Rep.104 b. freehold be given to a man, and either mediately or immediately, in any part of the same instrument, an estate was limited to the heirs of his body, the latter limitation would unite with the former, and give him an estate tail. But it never had been decided that those words might not be otherwise explained in the will by the testator himself. They were so explained in Lowe v. Davis. The estate which was the subject of dispute in that case, came afterwards to a gentleman who was not perfectly satisfied with the decision, and would have canvassed it again. His doubts were founded upon an old opinion which he had discovered of Lord Holt's, that the words, heirs of the body, were so positive to give an estate tail to the first taker, that they could not be gotten rid off by subsequent words. That opinion he had seen, but it was certainly too strait-laced a construction, and ante, c. 13. nobody had ever doubted but that the case of Lowe v. |