Or where the different Say and Sele v. Jones, 3 Bro. Parl. Ca. 113. 8 Vin. Ab. 262. though the words in succession and priority might have effect, in case the plaintiff took an estate tail, yet they were meant to give an interest to the sons, after the death of the plaintiff; the latter clause put it out of doubt, he there explained his meaning by making use of the words sons and issue. 65. When the estate devised to the ancestor, is merely an equitable or trust estate, and that to his heirs, or the heirs of his body, carries the legal estate, they will not incorporate into an estate of inheritance in the ancestor; as would have been the case if both had been of one quality; that is, both legal, or both equitable. 66. Mrs. Ellis devised her estates to trustees and their heirs, upon trust to pay debts and legacies; and to pay the residue to the proper hands of her daughter Cecil Fiennes, who was a married woman, for and during the term of her natural life; and from and after her decease, the said trustees should stand and be seised of and in all the said manors, &c. to the use and behoof of the heirs of her said daughter Cecil Fiennes, severally and successively, as they should happen to be in priority of birth and seniority of age, and to the heirs of their several and respective bodies in tail general. The question was, whether Cecil Fiennes had an estate tail, or only an estate for life. Lord King was of opinion, that by the words of the will, the use was executed in the trustees and Tit. 12. c, 1. their heirs during the life of Cecil Fiennes; and that § 18. she had only a trust in the surplus of the rents and profits. But by the subsequent words, viz. that the trustees should stand seised to the use of the heirs of the body of Cecil Fiennes, &c. the use was executed in the persons entitled to take by virtue thereof; and therefore there being only a trust estate in the ancestor, and an use executed in the heirs of her body, those different interests could not unite, so as to create an estate tail by operation of law in the ancestor. Upon an appeal to the House of Lords, the decree was affirmed. v. Smith, 67. Lands were devised to trustees, upon trust Shapland that they should every year, after deducting rates, 1 Bro. R. 75. taxes, &c. pay such clear sum as should remain to A. B. during his natural life, and after his decease to the use and behoof of the heirs male of the said A. B. lawfully begotten, as they should be in priority of birth; and in default of such issue, remainder over. Lord Thurlow was of opinion, that A. B. took only Tit. 12. c. 1. an equitable estate; and the subsequent estate being § 31. executed, created a legal remainder in tail, which could not unite; and therefore A. B. was only tenant for life. Wilson, 68. A person devised to trustees and their heirs, Silvester v. upon trust to take and receive the rents, issues, and 2 Term R. profits thereof, and to apply the same for the subsist- 444. ence and maintenance of his son during his life; and immediately from and after the decease of his son, the testator gave and devised the said premises unto the heirs of the body of his said son. It was held, that as the estate devised to the son for his life was merely an equitable one, and the remainder to the heirs of the body of his son was a legal one, the son took only an estate for his life. Col. Jur. 69. Thus stood the doctrine respecting the appli- Case of Percation of the rule in Shelley's case, in the construction in v. Blake, of wills; when the case of Perrin v. Blake arose upon vol. 1. 283. a devise made in the following words-" And should my wife be ensient with child at any time hereafter, and it be a female, I give and bequeath unto her the sum of 2000l. current money of this island, and to be paid her when she attains the age of twentyone years, or day of marriage, which shall first happen; and to be generally educated and maintained out of my estate, till her portion becomes payable, without any deduction of the same or any part thereof. And, if it be a male, I give and bequeath my estate both real and personal, equally to be divided between the said infant and my son John Williams, when the said infant shall attain the age of twenty-one. Item, and it is my intent and meaning, that none of my children should sell and dispose of my estate for longer time than his life: and to that intent I give, devise, and bequeath, all the rest and residue of my estate to my son John Williams, and the said infant, for and during the term of their natural lives, the remainder to my brother-in-law Isaac Gale and his heirs, for and during the natural lives of my said sons John Williams and the said infant; the remainder to the heirs of the bodies of my said sons John Williams and the said infant, lawfully begotten, or to be begotten; the remainder to my daughters, for and during the term of their natural lives, equally to be divided between them; the remainder to my said brother-in-law, Isaac Gale and his heirs, during the natural lives of my said daughters respectively; the remainder to the heirs of the bodies of my said daughters, equally to be divided between them." The testator died, leaving the said John Williams his only son and heir, and three daughters. The testator's wife was not ensient at his death; and Isaac Gale, the devisee in trust in the will, died before the testator. This case was argued in the Court of King's Bench in Easter Term 9 Geo. III. and in the Trinity Term following; and in Hilary Term 10 Geo. III. the Judges delivered their opinions seriatim. Mr. Justice Willes said there were two questions1st, What appeared to be the intention of the testator? 2d, Was that agreeable to the rules of law? The intention was apparent from the introductory clause which governed the whole will. The devise to Isaac Gale was a farther proof of the intent. From every part of the will it appeared that Gale was meant as a trustee to preserve contingent remainders. After the devise to Gale, he gives it to the heirs of the body of his son. If he could give an estate for life to one, and the inheritance to the heirs of the body of the first devisee, and if his intention appeared to be so, he should think that that intention must control the legal sense of the words, heirs of the body. The rule contended for, which was inShelley's case, was pronounced by Lord Coke upon a deed, and in argument; and though he should be for adhering to it in every case literally within it, yet it must not be extended an inch. The maxim itself grew with feudal policy, and the reasons of it were antiquated. The logicians say, cessante causá cessat effectus, and surely the lawyer may say-I will confine an old rule within its exact bounds, and extend it as little as possible. Having then stated many of the preceding cases, he concluded that the intention of the testator must prevail, which being to give an estate for life only to John Williams, in his opinion he took such an estate only. Mr. Justice Aston said they were now examining a testator's will, and deciding upon the devises in that will. The first and fundamental rule of law in point was, that the intention of the testator was to be col lected and allowed, though not expressed in any legal language. The intention was clearly to give an estate for life, and where the intention is clear it should govern. But it was objected, first, that in Shelley's case it is laid down-That if the ancestor takes for life, and in the same instrument an inheritance be limited to the heirs of his body, the first takes the estate tail. Secondly, That the testator had made such a devise in the very words in this case; that no words of limitation were superadded to the words devising the inheritance. That the devise was of a legal estate, not of a trust, and therefore that the legal sense of the words would supervene the intention, however plainly expressed. As to the first he admitted the rule in Shelley's case to be law, but he denied the consequence, that it was an invariable rule to be ap plied on every devise. It was an old rule of feudal policy, the reason of which was long since antiquated, and therefore it must not be extended one jot. The word heirs was a term of art; it was necessary to be used in a deed, but not in a will. So in the case of estates tail; in a deed they must be created by using words of procreation, as, heirs of the body. But proli, semini, issue or children would do in a will; from whence it followed that a testator need not use terms of art. The argument now was, since he had used them, they must have their due influence. But it was no conclusive argument; when the law permitted an intention to be freely communicated, no reason could be given why terms of art should not be got over. Sir Joseph Jekyll, in Papillon v. Voyce said, the intention if lawful shall govern. Lord Talbot observed in Glenorchy v. Bosville,-The rule of law is not so strict, as to control the intent. In Sayer v. Masterman, Lord Commissioner Willes observed, |