an estate be devised to a man for his life, or for his life et non aliter, or with any other restrictive expressions, yet if there be afterwards added apt and proper words to create an estate of inheritance in his heirs, or the heirs of his body, the extensive force of the latter words should overbalance the strictness of the former, and make him tenant in tail, or in fee. The true question of intent would turn, not upon the quantity of estate intended to be given to John the ancestor, but upon the nature of the estate intended to be given to the heirs of his body. That the ancestor was intended to take an estate for life, was certain; that his heirs were intended to take after him, was equally certain; but how those heirs were intended to take, whether as descendants or as purchasers, was the question? If the testator intended they should take as purchasers, then John the ancestor only remained tenant for life; if he meant they should take by descent, or had formed no intention about the matter, then, by operation and consequence of law, the inheritance first vested in the ancestor. The true question, therefore, was, whether the testator had, or had not, plainly declared his intent, that the heirs of the body of John Williams should take an estate by purchase, entirely detached from, and unconnected with, the estate of their ancestor? Or, in other words, whether he meant to put an express negative on the general rule of law, which vests in the person of the ancestor (when tenant of the freehold) an estate that is given to the heirs of his body? It was not incumbent on the plaintiff to show by any express evidence, that his testator meant to adhere to the rule of law; for that was always supposed, till the contrary was clearly proved but it was incumbent on the defendant to

ante.

show, by plain and manifest indications, that the testator intended to deviate from the general rule; for that was never supposed till made out, not by conjecture, but by strong and conclusive evidence. By a devise to a man's heirs, or heirs of his body, the heirs had never been allowed to take as purchasers, excepting in one of these four cases:-1st, Where no estate at all, or no estate of freehold, was devised to the ancestor; there the heirs could not take by descent, because the ancestor never had in him any descendible estate. 2d. Where no estate of inheritance was devised to the heir, as in the case of White v. Collins; for common sense would tell, that in such a case the heir could not take by descent, as heir. 3d. Where some words of explanation were annexed by the devisor himself to the word heirs in a will, whereby he discovered a consciousness, distrust, or apprehension, that he might have used the word improperly, and not in its legal meaning, and therefore he in a manner retracts it, he corrects the inaccuracy of his own phrase, and tells every reader of his will how he would have it understood. 4th. Where the testator superadded fresh limitations, and grafted other words of inheritance upon the heirs to whom he gave the estate; whereby it appeared, that those heirs were meant by the testator to be the root of a new inheritance, the stock of a new descent, and were not considered merely as branches derived from their own progenitor. The evidence of intent, in this case, might be resolved into two particulars : 1st. The testator's previous declared intention, that none of his children should sell or dispose of his estate for longer term than his own life. 2d. The interposed estate to Isaac Gale and his heirs, on which much stress could not be laid; for, if that estate had been

expressly given to preserve contingent remainders (which was only a conjecture), the case of Coulson v. Coulson was an express authority, that this would not make the heir of the body a purchaser. If this was so, the introductory words were the only evidence of intent, and then the result of the whole matter was, that the testator having declared his intent that his son should not alien his lands, he, to that intent, gave his son an estate to which the law has annexed a power of alienation ;-an estate to himself for life, with remainder to the heirs of his body. Now, what was a court of justice to conclude from hence? Not that a tenant in tail thus circumstanced should be barred of the power of alienation; this was contrary to fundamental principles. Not that the devisee should take a different estate from what the legal signification of the words imported; this, without other explanatory words, was contrary to all rules of construction; but plainly and simply this, that the testator had mistaken the law, and imagined that a tenant for life, with first an interposed estate, and then a remainder to the heirs of his body, could not sell or dispose of his interest. Upon the whole, he concluded, that though it did appear that the testator intended to restrain his son from disposing of his estate, for any longer term than his life, and, to that intent, contrived the present devise, yet it did not appear by any evidence at all, much less by declaration plain, that, in order to effectuate that purpose, he meant that the heirs of the body of his son should take by purchase, and not by descent, or even that he knew the difference. The consequence was, that, by the legal operation of the words, which were not controlled by any manifest intent to the contrary, the

General Observations on the Rule.

heir could only take by descent, and, of course, John Williams the son was tenant in tail.

71. It is observable, that in the several cases in which the question has arisen, whether the rule in Shelley's case should be applied to the construction of a will, the objection to its application has always been founded on the obvious intention of the testator, to give the first devisee no more than an estate for life; without considering that in all those cases the testator devises the remainder expectant on the determination of the first estate, to the heirs general, or special, or to the issue of the first devisee; and that it is as necessary to ascertain his intention in the second, as in the first devise. There can be no doubt but that where a common person devises his estate to A. for life, with a remainder to his heirs general, or special, or issue, he does not mean to give A. any greater estate than for his life; and as to the addition of negative words, or a devise to trustees to preserve contingent remainders, they can add nothing to the clearness of the first words. The whole difficulty therefore lies in ascertaining the intention of the testator in the second devise; or, as Sir W. Blackstone says, "the true question of intent will turn, not upon the quantity of estate intended to be given to John the ancestor, but upon the nature of the estate intended to be given to the heirs of his body;" and where the second devise is inconsistent with the first, to adopt such a construction as will best effectuate the general intent of the testator. It is for this purpose that the rule is applied; upon a principle which has been already stated, and which is fully explained by Lord Ch. J. Wilmot in his very able ante, § 55. judgment in the case of Roe v. Grew; and by Lord Kenyon in several cases which have been already

Robinson v.

Hicks,

ante, c. 12.

stated in chapter 12; namely, that where a testator shows a particular, and also a general intent, which are inconsistent with each other, the general intent will be established, and the particular one disregarded.

72. In all the cases where the rule has been applied, there was a devise to A. for life, with a subsequent devise to the heirs general, or special, or issue, of A.; and the testator had a particular intent, to give an estate for life only to A., and a general intent, to give estates to all the lineal descendants of A. If the will were construed according to the particular intent, the first devisee would take an estate for life only, and the word heirs, or heirs of the body, or issue, must operate as words of purchase. But by this mode of construction the general intent that all the lineal descendants of A. should take successive estates of inheritance, either in fee, or in tail, would be defeated. For if the remainder was devised to the heirs of A. it must vest in the person who was heir general to A. at the time of his death; and in that Fearne's

Cont. Rem.

6th ed. 192.

case it could 'not go in succession from him, to succeeding heirs of the same ancestor, not being heirs general of the first heir; but might eventually go to strangers, either in defect or exclusion of the heirs of such ancestor. If the remainder was devised to the heirs of the body of A. it would vest in the person who was heir of the body of A. at the time of the testator's death, and would descend to the heirs of the body of that heir; and on failure of issue of that person, it would go by a quasi descent to the next Tit. 32. c. 21. person who answered that description, at the time of the failure of such issue, in conformity to Mande- 1 Inst. 26 b. ville's case; so that if the devisee had several sons, Morris v. the first would take an estate tail, but none of the Ward,

$35.

ante, § 19.