the principal intention of the testator be disappointed. And when it is descriptive of the estate, and operates as a word of limitation, and gives an estate tail, it is not the word, but the law, which regulates the descent to all the sons successively, upon its own favourable principles of primogeniture.

It had been argued that if we could collect from the will that he meant first and every other son in succession, why not construe it so, and thereby complete every part of the intention? Because it would be doing violence to the word issue, and forcing it out of its known established sense, when the meaning of the testator might be as effectually complied with, by giving it one of its natural energies, as a word of limitation; and though the intention collected from the will was to govern the construction, yet there must be words used which were fit and proper for that purpose. It would confound the use of all language, and introduce the greatest barbarity and confusion, to make words stand for ideas, in opposition to the sense which usage had put upon them; and as a word of limitation, it did not defeat the estate for life; for, without fine or recovery, which was not to be presumed, an estate tail was only an estate for life.

As to whether the words, heirs male of the body of A., operating as words of purchase, would have the same effect, and take in all the issue male of A., as effectually as if they operated as words of limitation, he admitted, upon the authority of Co. Lit. 26 b. and the case of Southcot v. Stowell, 1 Mod. 226, 237, Tit.32. c. 21. and Freeman's Reports 216, 225, that when an $ 36. estate once vests in an heir male of the body of A. by purchase, any other heir male of the body of A. may take by descent and the reason seemed to be

Vide ante,

because it is quasi an estate tail from A. and the will of the donor gave it a descendible quality, after it was once vested, as to all the lineal male descendants from A. as well as to all the lineal male descendants of the first purchaser. But still it would not have the same consequence as if they acted as words of limitation; for suppose A. had a son who died in his father's lifetime, leaving daughters, and A. had other sons, they could never take at all, for the second brother could not take because he was not complete heir: whereas if it was an estate tail, it would descend upon the second son, and take in all the descendants; and it was impossible to make it equivalent to a limitation to the first and every other son, without violating and confounding the legal operation of words, and producing consequences not warranted by the will; for upon a limitation to the first and every other son, the remainders would vest the instant the sons were born, and when a son was of age, he might by a fine, bar all his issue. But where the limitation was to the heir male of the body of A. no estate vested till A. died: and if there were no trustees to preserve, &c., A. might bar the remainders, at any time after the sons were born, as well as before. And

a fine levied by his eldest son would not bar his issue, Tit. 35. c. 9. if he died before the father; because the issue would § 37. take by purchase, and not from his father.

3dly. Which intention ought to take place. If the testator had put the issue and remainder-men into the power of G. Grew, it was not to be presumed he would defeat them. If he had given contingent remainders to the issue, and they were to take by purchase, he might defeat the issue before they were born. If estate tail, a chance. If confined to one VOL. VI. Cc

Or where a

ted and a

directed.

issue only, the rest had no chance; better to have a chance of something; the remainder was of no estimation after estate tail, vested or contingent, quacunque via. But suppose the question asked,-"You meant a strict settlement, with trustees to preserve contingent remainders, but the words will not warrant the expounding the will in that manner. G. Grew must either take an estate tail, which will let in all his issue male, but with a power of defeating them and George Dodson, or an estate for life, which will let in G. Dodson in exclusion of the sons of G. Grew?" His answer must have been; I do not intend G. Dodson any thing, while there is issue male of G. Grew. It was certainly the intention of the testator that G. Grew's sons should take in succession, which they could not do, if he was only tenant for life; he therefore took an estate tail.

The other Judges concurred, and judgement was given accordingly.

56. The Court of Chancery has deviated from the Trust is crea- rule in Shelley's case, where the testator has created Conveyance an executory trust, by directing a conveyance to be made, and the Court has been called upon to give directions respecting such conveyance; and has so far departed from that which would be the legal operation of the words limiting the trust, if reduced to a common law conveyance, as to construe the words, heirs of the body, although preceded by a limitation for life, as words of purchase, and not of limitation. But this has been done only in cases wherein it appeared from some clause or circumstance, essentially repugnant to the nature of an estate tail, that the devisor could only intend to give the first devisee an estate for life; and that he used

the words, heirs of the body, for the purpose of Vide describing the persons to whom he meant to give the Hobart, estate, after the death of the first devisee.

Stamford v.

3 Bro. Parl.

Ca. 31.

Earl of

57. The Countess of Sheppey devised her real and Leonard v. personal estate to trustees and their heirs, for payment Sussex, of debts and legacies; and afterwards to settle the 2 Vern. 526. remainder, and what should remain unsold, a moiety to her son Henry and the heirs of his body by a second wife, and in default of such issue to her son Francis and the heirs of his body: the other moiety to her son Francis and the heirs of his body, with remainders over: taking special care in such settlement, that it should never be in the power of either of her said sons to dock the intails of either of the said moieties given to them as aforesaid, during their or either of their life or lives.

The question was, whether Francis and Henry were entitled to have an estate tail conveyed to them, or only an estate for life.

Lord Cowper decreed that the sons must be made only tenants for life, and should not have an estate tail conveyed to them, but their estate for life should be without impeachment of waste; because here an estate was not executed, but only executory; and therefore the intent and meaning of the testatrix was to be pursued: she had declared her mind to be that her sons should not have it in their power to bar their children, which they would have if an estate tail was to be conveyed to them; and took it to be as strong in the case of an executory devise for the benefit of Tit. 32. c. 22. the issue, as if the like provision had been contained § 32. in marriage articles.

58. In a case which has been already stated, the Papillon v. sum of 10,000, was devised to trustees, to be laid Voyce, out in a purchase of lands, to be settled in the same

ante, § 5.

Ashton v.
Ashton,

vol. 1, 402.

manner as certain lands which the testator devised by the same will; that is to say, to B. for life, without impeachment of waste, and from and after the determination of that estate, to trustees and their heirs during the life of B. to preserve contingent remainders, remainder to the heirs of the body of B. with remainder over, with a power to B. to settle a jointure.

Lord King held, that as to the lands devised, B. took an estate tail, it being within the rule in Shelley's case; but as to the other point, he declared the Court had a power over the money directed by the will to be invested in land. That the diversity was where the will passed a legal estate, and where it was only executory, and the party must go to the Court of Chancery in order to have the benefit of the will: that in the latter case the intention should take place, and not the rules of law; so that as to the lands to be purchased, they should not be limited to B. for life, with power, &c., remainder to the heirs of his body, but to B. for life, with power, &c., remainder to trustees during his life, to preserve contingent remainders, remainder to his first and every other son in tail male, remainder over.

59. Joseph Ashton by his will gave 1200l., in Collect. Jur. money and 60007. South Sea annuities, in trust, as soon as conveniently might be after his death, to sell the same; and lay out the money in a purchase of lands of inheritance, to be conveyed to G. I. Ashton for life, and after his death, to the issue of his body, lawfully begotten, and for want of such issue to H. Ashton in fee. G. I. Ashton brought his bill for the performance of this trust; and at the hearing of the cause, one question was, what estate the plaintiff ought to take in the lands to be purchased, whether