Davis was rightly decided. That case however, if it wanted confirmation, had been fortified by the subsequent determination in Doe v. Laming; the Idem, § 41. Court there clearly thought that the subsequent words, as well females as males, showed that the testator meant the words, heirs of the body, &c. to be words of description of the persons whom he intended should next take, and not to be words of limitation; and therefore in this case Margaret took only an estate for life. Mr. Justice Lawrence said, the question was, whether the words, hers male of the body of Margaret, were descriptive of the persons whom the testatrix afterwards called son or sons; for of the intention there could be no doubt. She first gave Margaret an express estate for life, without impeachment of waste, then to trustees to preserve contingent remainders, then, after Margaret's decease, to the heirs male of her body to be begotten, severally, successively, and in remainder one after another, &c. All this was unnecessary if the testatrix meant to give Margaret an estate tail; but then she went on,"the elder of such sons and the heirs male of his body to be preferred before the younger of such son and sons;" evidently meaning the same persons whom she had before described as heirs male of the body of Margaret therefore this fell directly within the case of Lowe v. Davis, and was the same as if the testatrix had said, by heirs male of the body I mean the eldest son and other son and sons of Margaret; and if she had said so in as many words, it could not be questioned, but that the former words must have had that construction put upon them: now the words made use of were in effect the same. Then the testatrix proceeded to give an estate to the daughters VOL. VI. Bb of Margaret in the same manner; that also showed that by the words, such son or sons, she meant the same persons whom she had before described as the heirs male of Margaret; for she first provided for the sons, and then for the daughters of the first taker. It was no answer to say that by this construc tion, if the eldest son of Margaret had died in the lifetime of the testatrix, leaving a son, the devise would have lapsed, and the grandson been disinherited; for if the obvious meaning of the will was that Margaret should only take for life, they could not enlarge that estate, in order to prevent a possible inconvenience. Judgment was given that Margaret took only an Cases, 1801. estate for life. And upon a writ of error from this Printed judgment to the House of Lords, the following question was put to the Judges :-What estate Margaret Davie took? The Lord Ch. B. delivered their unanimous opinion, that Margaret Davie took an estate for life. Whereupon the judgment was affirmed. 39. In a subsequent case, which is nearly similar to the last one, the Court of Common Pleas did not think it could restrain the legal effect of the words heirs of the body, so as to convert them into words of purchase. 40. Lands were devised to trustees and their heirs, to the use of them and their heirs, in trust for the use and benefit of the testator's first son during his life, and also upon trust to preserve the contingent remainders from being defeated or destroyed; and after his decease to the several heirs male of such first son lawfully issuing, so as the elder of such sons and the heirs male of his body should always be preferred and take before the younger, and the heirs male of his body; and for want of such issue, in trust for his second, third, fourth, and all and every other son and sons, for their respective lives, with remainders as before; and for want of such issue, in trust for his first daughter, and every other his daughter and daughters, for their several and respective lives; and also upon trust to preserve the contingent remainders from being defeated and destroyed; and from and after their several deceases, in trust for the several heirs male of their several and respective bodies lawfully issuing, so as the elder of such daughters and the several heirs male of her body should always be preferred and take before the younger of the same daughters, and the heirs male of her and their bodies: with power to the persons who should be entitled to the possession of his said estates to settle jointures. The testator died leaving a son, and the question upon a case sent out of Chancery to the Court of C. B., was, what estate that son took under the will. The Judges of the Court of Common Pleas certified to the Lord Chancellor, that if the devises contained in the will, to the children of the testator and their issue, had been devises of legal estates, the only son of the testator would have taken an estate in tail male; there not appearing upon the whole will together sufficient indication of the testator's intention to restrain the legal effect of the words, heirs male of the body, and to convert them into words of purchase. with Words of Limitation. 41. Where words of limitation are superadded to Or to the Heir the word heir in the singular number, from which it appears to have been the intention of the testator to denote by the word heir a new stock and root of in Tit. 32. c. 21. heritance, it will be construed a word of purchase; and the first devisee will take only an estate for life. § 35. Archer's case, 1 Rep. 66 b. Clarke v. Day, Moo. 593. Poole v. 43. F. Archer devised lands to Robert Archer the father, for his life, and afterwards to the next heir male of Robert, and the heirs male of the body of such next heir male. It was agreed by Anderson Walmsley and the rest of the Court, that Robert had but an estate for life; because he had an express estate for life devised to him, and the remainder was limited to the next heir male of Robert, in the singular number. 44. A man devised land to Rose his daughter for life, and if she married after his decease, and had issue of her body, then he willed that her heir after his daughter's death should have the land, and to the heirs of their bodies begotten. It appears by the various reports of this case which are stated in 8 Viner's Ab. 213. pl. 4, that the Judges were much divided. Moor says, it was adjudged that Rose had only an estate for life, and the 3 Bos. & P. inheritance in her heir by purchase, resting in abeyance all her life, and settling in the instant of her death. 620. Amb. 459. Or to Heirs with Words limiting an Estate of a particular nature. Cont. Rem. 286. 45. Mr. Fearne has observed, that there may possibly be some cases where the superadded words of limitation may be admitted to controul the preceding words heirs, heirs male, &c., though in the plural number, when such superadded words limit an estate to such heirs, heirs male, &c. of a different nature from that which the ancestor would take, if the preceding words heirs male, &c. in those cases, were taken as words of limitation. As in the case 1 Rep. 95 b. put by Anderson, of a limitation to the use of a man for life, and after his decease, to the use of his heirs, and the heirs female of their bodies. Here the first word heirs would have given a fee to the ancestor, if taken as a word of limitation; whereas the subsequent words, and the heirs female of their bodies, grafted on the word heirs, could give only an estate tail female to the heirs. In such cases the general effect of the first words, heirs of the body, &c. seemed to be altered, abridged, and qualified by such subsequent express words of limitation, annexed to them, as could not possibly be satisfied by considering the first words as words of limitation. But he observes, we must take care to confine this observation to those cases where the ingrafted words describe an estate. descendible in a different course, and to different persons, as special heirs, from what the first would carry the estate to; viz. to males instead of females, or vice versa; for where the first words give an estate tail general, and the words ingrafted thereon are words serving to limit the fee, it seems, by the general and better opinion, that the annexed words of limitation are not to be attended to; as in the cases of Goodright v. Pullyn, and those of Wright v. ante, § 17. Pearson, and King v. Burchell, where the ingrafted Doe v. words limited the whole fee. That there does not Ironmonger, appear to be the same inconsistency in construing 35. the first words, which describe heirs special, to be words of limitation, where the superadded words extend to heirs special; as there is where the first words, and those ingrafted on them, distinguish two different incompatible courses of descent, and would not carry the estate to the same persons. In the latter case it is absolutely impossible, by any implied qualification, to reconcile the superadded words to those preceding them, so as to satisfy both, by construing the first as words of limitation; whereas in ante, c. 10. |