Or to the Heir for Life. White v. the former case, the superadded words are not contrary to, or incompatible with the preceding, but in their general sense include them; and there is no improbability in the supposition, that they were used by the testator in the same qualified sense as the preceding; and then both may be satisfied, by taking the first as words of limitation. 46. Where the remainder is given to the heir of the first devisee for the life only of such heir, the first devisee will take no more than an estate for life. 47. Francis Harvey devised in these words,-“I Com. R. 289. give to my son Frank Mildmay my farm called East House farm, &c., to enjoy the rents and profits thereof during the term of his natural life, with power to make a jointure of all or part, if he should marry; and after his death and jointure, if any be made, to the heir male of his body lawfully begotten, during the term of his natural life; and for want of such heir male, I give the said farm to my son Carew Mildmay, &c." It was agreed that the limitation to F. M. to enjoy and take the profits during his life, and after his decease to the heirs male of his body, would make an estate tail. So if it had been to the heir male of his body in the singular number, where nothing appeared which explained the intent to the contrary: but here the intention appeared to be that such heir male should have the land only for life, which showed that the testator did not intend that those words should be taken as words of limitation; and nothing appeared in the nature of the expression which imported that they should be taken so. Heir male, or next heir male, were words of purchase; and in this case, where the devise was to F. M., and after his decease to the heir male of his body, during his life; the express limitation during his life, showed that he intended his son should have it in remainder for his life only; and when he devised it over, for want of such heir male, to C. M., this did not import that C. M. should not have it till T. M. died without heirs male generally, but for want of such heir male, who was to have it for life. with words of 48. Where an estate is devised to a person for life, Or to Issue with remainder to his issue, with words of limitation Limitation. superadded, the word issue will in that case be con- Tit. 32. c. 22. strued to be a word of purchase. § 28. 49. Sir Michael Armyn devised certain lands to Loddington v. Kyme, Evers Armyn for life, and in case he should have any 1 Ld. Raym. issue male, then to such issue male, and his heirs for 203. ever; and if he should die without issue male, then he devised over. It was agreed by all the Judges of the Court of K. B. that Evers Armyn had but an estate for life, and that the issue male of Evers Armyn, if there had been any, would have taken a fee by purchase. For, first, they held that though the word issue was sometimes construed as heirs, and as a word of limitation, yet in a devise it might be a word of purchase as well as of limitation: when it was taken as a word of limitation, it was collective, and signified all the descendants in all generations; but when it was taken as a word of purchase, it might denote a particular person, and be designatio persona. The second question then would be, whether the intention of the tes * It does not appear to have ever been decided that a devise of a legal estate to A. for life, remainder to his issue, created an estate tail; but in the case of Glenorchy v. Bosville, which will be stated bereafter, Lord Talbot was clearly of opinion that these words would create an estate tail. Boothby v. Backhouse v. Wells, tator appeared, that the word issue should be designatio persona, or whether he designed it to be a word of limitation; and they held that the testator designed it to be a description of the person, because he added a farther limitation to the issue, viz. and to the heirs of such issue for ever. 50. A will was made in these words,-" To the 10 Mod. 181. intent that all my lands should remain in my name and blood, I devise to J. S., my near kinsman, such and such lands, &c., to have and to hold for the term of his natural life only, without impeachment of waste; then to the issue male of his body lawfully to be begotten, if God shall bless him with such issue; remainder to the heirs male of the body of that issue." v. Shaw, ante, c. 12. Lord Ch. J. Parker delivered the opinion of the whole Court, that the devisee was made tenant for life, remainder to the issue in tail. The words of the will, he said, were so express to this purpose, that neither any words that could have been used, Vide Sparrow nor any arguments, could make it plainer; this he said was both the obvious and the legal sense of the words, and what they would have imported in a conveyance. Doe v. 4 Term R. 51. J. Newson devised a moiety of certain lands, after the death of his wife, to his daughter Susan, during the term of her natural life, and after her decease, to the issue of her body lawfully begotten, and their heirs for ever. Susan had one daughter born before the will was made, and two born after. Lord Kenyon said, that in a will, issue was either a word of purchase, or of limitation, as would best answer the intention of the devisor: though in the case of a deed, issue was universally taken as a word of purchase. Therefore, without disputing any of the former cases, but on the contrary in confirmation of them all, and relying upon them for the foundation of this judgment, namely, that the intention of the devisor must prevail, he was of opinion that the devisor, in this case, used issue as a word of purchase, and consequently that Susan took only an estate for life, and her children took an estate in fee simple. Judgment was given accordingly. 52. It has been stated in a former chapter, that Unless the general Inwhere a testator appears to have a particular intent, tent require and also a general manifest intent, both of which a different Construccannot by any mode of construction be carried into tion. effect; the courts will construe the will in such a ante, c. 12. manner as to effectuate the general intent, though by that means the particular intent is defeated. 1 Vent. 225. 53. A person devised lands to A. for his natural King v. life, and after his decease he gave the same to the Melling, issue of his body lawfully begotten, on a second 232. 2 Lev. wife ; and for want of such issue, to B. and his heirs for ever. Provided that A. might make a jointure of all such premises to such second wife. Lord Hale was of opinion that this was an estate tail in A.; and though the three other Judges of the Court of K. B. were of a contrary opinion, yet upon error brought in the Exchequer Chamber, the judgment was reversed, and Lord Hale's opinion established. 58.2 P.Wms. 472. 4 Term R. 54. John Blount devised a messuage and farm to his King v. cousin John Harris, to hold during his natural life, Burchall, and from and immediately after the determination 296. note. of that estate, unto the issue male of the body of his said cousin John Harris, lawfully to be begotten, and to his and their heirs, share and share alike, if more than one; and for want of such issue, unto his ante, § 49. cousin William King, his heirs and assigns for ever. And taking notice that he had covenanted to settle 50% a year upon his wife, in part performance thereof, he devised houses at Maidstone to her, to hold for her life, as part of her jointure; and from and immediately after her death, he gave the same to his cousin James Harris, for and during the term of his natural life; and from and immediately after the determination of that estate, unto the issue male of the body of the said John Harris, lawfully to be begotten, and to his and their heirs; and for want of such issue, to his cousin William King and his heirs; with a proviso that if John Harris or his issue should alienate the premises, he should pay 2000 l. to the person who ought next to take by virtue of the devises aforesaid. Lord Henley. The first question made by the plaintiff's counsel was, whether Harris took under the will an estate for life only, or an estate tail. And they founded their arguments of its being an estate for life, on the word issue being technically a word of purchase, and on the superadded words of limitation; and they compared this case to Loddington v. Kyme, amongst many other cases. The true answer is, that there can be no technical words in a will, but they are to be construed according to the intention of the parties. 2°. This case has no resemblance to Loddington v. Kyme: that was expressly upon two contingencies; to A. for life, and if A, have A. issue, then to such issue in fee; and if he die without issue then to B. in fee. There the Court construed the word issue to be nomen singulare; and were well warranted in so doing, by the intent of the party. But here it is and must be plural, and if the issue |