self afforded a clear indication of the sense in which he has used the words, we are to reject his own interpretation, in order to preserve the legal effect of the term " heirs of the body:" on the contrary, the cases of Lowe v. Davies, 2 Ld. Raym. 1561 (per nom. Law v. Davis, 2 Stra. 849, 1 Barnard. 238), of Lisle v. Gray, 2 Lev. 223, and Goodtitle d. Sweet v. Herrin, 1 East, 264, 3 B. & P. 628 (in which last case the judgment of the Queen's Bench was affirmed in the House of Lords), and the cases of North v. Martin, 6 Sım. 266, and Doe d. Woodall v. Woodall, 3 C. B. 349, establish conclusively, that where, following on a gift to heirs of the body, the term "son or sons," "daughter or daughters," or "child or children," is used in apposition, as it were, to the term "heirs of the body," the latter is to be taken in its more restricted and not in its legal sense. The cases of Pope v. Pope, 14 Beav. 591; Gummoe v. Howes, 23 Beav. 184; and Smith v. Horsfall, 25 Beav. 628, are equally in point as establishing that the same effect is produced in limiting the term "issue," which, when unexplained by the context, has, as is now well established, the same force as the term "heirs of the body." In Smith v. Horsfall, the Master of the Rolls says: "Issue here means children; and such is its signification in all cases where a direct reference is made to the parent of the issue. I entertain no doubt on the point; and I should be unsettling the law if I were to hold the contrary."

It is quite plain, according to these authorities, that if, in the present devise, the devisor, after the gift to the heirs male of the body of William Jordan, had gone on to say, "the said sons of the said William Jordan to take in such parts, &c., as the said William Jordan shall appoint," this direction must have had the effect of giving to the term "heirs male of the body" the more limited meaning of "sons." Now this although in another form, the testator has to all intents and purposes done; for what possible difference can there be between speaking of the heirs of the body as the sons of the first taker, and of the first taker as the father of the heirs? Instead of using the one form of expression, the testator has used the correlative and corresponding one, and one altogether equipollent in effect. He has given his own key to the meaning of the words "heirs of the body of William Jordan," namely, those heirs of the body of William Jordan of whom William Jordan is the father; that is, the sons of William Jordan. The authorities are as strong for giving effect to such an exposition of a testator's meaning of the term "heirs of the body," where it exists, as for enforcing the technical meaning where it does not. We have no right, as it seems to me, to reject these words, or to hold them to mean something else, so as to give to William Jordan an estate tail; more especially as all the other provisions of the devise lead only to the conclusion that the testator never entertained the intention to give him any such estate. Nor am I embarrassed by the use of the words "in default of such issue," which follow in the ensuing limitation. The word "issue is, as every one knows, a flexible term; if the term "heirs of the body"

can be controlled by an explanatory context, the term "issue"cannot be less susceptible of being modified in like manner. The "issue" here spoken of are plainly the same as were previously spoken of as "heirs male of the body." If the latter are shown by the context to have been the sons of William Jordan, such also must be the meaning of the term "such issue."

The judgment of the House of Lords in the case of Roddy v. Fitzgerald, which was pressed on us in the argument, does not, as it appears to me, conflict with this view. It was not at all intended by that decision, as I read the judgments of Lord Cranworth and Lord Wensleydale, to overrule the numerous cases at common law and in equity to which I have last referred; or all that class of cases (collected in 2 Jarm. Wills, 273–277), in which the term "issue" has been cut down to mean sons, daughters, or children, by the testator having used one or other of those terms in the context of the will. Lord Cranworth expressly says, "Where the testator shows upon the face of his will that he must have used technical words in another than their technical sense, there is no rule that prevents us from saying that he may be his own interpreter: and again, "The word issue' when used in a will is prima facie a word of limitation; but if the context makes it apparent that the word is not so used, then it may be treated as a word of purchase." The question in the case, as put by Lord Cranworth, was, whether in a devise to testator's son William for life with remainder to his issue, in such manner, shares, and proportions as he should appoint, and in default of such appointment, then to the issue equally, if more than one, and if only one child, to the said child; and on failure of issue, over, there was anything in the context to control the ordinary effect of the term "issue." And the House of Lords held that there was not. "Issue" being, as was pointed out by Lord Wensleydale, prima facie equivalent to heirs of the body, the direction that the heirs should take according to the appointment of the ancestor, or, in default of appointment, in equal shares, was altogether inoperative, as settled by the authority of Jesson v. Wright. The further provision, which seems to have been added by the testator unnecessarily and ex nimia cautela, that in the event of there being but one child, that child should take the whole, did not appear to their Lordships strong enough to control the larger sense of the word "issue." But there is nothing to show that, if the context had been sufficiently clear and strong for that purpose, their Lordships would not have given effect to it. On the contrary, as I have pointed out, Lord Cranworth's language is a clear recognition of the existence of the rule as I have stated it farther back. Looking at that language, I cannot but think that if, in Roddy v. Fitzgerald, the testator had, as in the present instance, described the first taker as the father of those whom he spoke of as his issue, effect would have been given to so striking an exposition of his meaning. I find no intimation of any intention to overrule the numerous cases already referred to in which

have been

the more general terms "heirs of the body" and "issue restricted, by words used in juxtaposition importing issue in the first generation only, to the latter more limited meaning. Nor can I suppose that their Lordships would have overruled such a series of authorities silently, and, as it were, by implication, or without a clear intimation of their intention to do so. I therefore consider them as still in force and binding upon us.

Being, then, of opinion that the devisor has afforded a clear indication of the sense in which he has used the term "heirs male of the body,” namely, that of sons, from which, of course, it would follow that no estate of inheritance was created, and that consequently William Jordan took only an estate for life, - but on this ground alone. that the judgment of the Court of Common Pleas should be affirmed.

I hold

The court being thus equally divided, the Lord Chief Justice intimated that if the parties wished to carry the case further, one of its members would withdraw his opinion, so that the judgment of the Court of Common Pleas might stand. Affirmed.

Kemplay (with whom was the Solicitor-General), for the appellant. Bovill, Q. C. (with whom was Archibald Smith), for the respondent.

NOTE. "When an estate is limited to a husband and wife, and the heirs of their two bodies, the word 'heirs' is a word of limitation, because an estate is given to both the persons, from whose bodies the heirs are to issue. But when it is given to one only and the heirs of two (as to the wife and the heirs of her and A. B.), there the word 'heirs' is a word of purchase. For no estate tail can be made to one only, and the heirs of the body of that person and another. This appears from Lit. § 352, according to the true reading collected from the original editions. The common editions make the estate Cypres, therein mentioned, to be to the widow and, les heirs de corps sa baron de luy engendres,' which is not as near as might be to the original estate intended if the husband had lived, viz. to the husband and wife and the heirs of their two bodies. But the original edition by Lettou and Macklinia in Littleton's life-time, and the Roan edition, which is the next (both which my Brother Blackstone has), read it thus, les heirs de les corps de son baron et luy engendres; " which is quite consonant to the original estate. And this estate to the widow for life, and the heirs of the body of her husband and herself begotten, Littleton, in the same section, declares not to be an estate tail. The same is held in Dyer, 99, in Lane and Pannel, 1 Roll. Rep. 438, and in Gossage and Taylor, Styles, 325; which, from a manuscript of Lord Hale in possession of my Brother Bathurst, appears to have been first determined in Hil. 1651; which accounts for some expressions of Chief Justice Rolle in Style's Case, which was in T. Pasch. 1652. There it was expressly held, that this was a contingent remainder to the heirs of both their bodies. The only difference of these three cases from the present is, that there the wife had an express estate for life, and here not. But upon legal principles the cases are just alike. An estate to A. and the heirs of his body,' is the same as an estate to A. for life, remainder to the heirs of his body.' We are therefore all of opinion that this was a contingent remainder to the issue, and not being capable of taking effect at the determination of the particular estate, is therefore gone forever." — Per WILMOT, C. J., in Frogmorton v. Wharrey, 2 W. Bl. 728, 731 (1770). See Fearne, C. R. 38; 2 Jarm. Wills (4th ed) 340-343.

On Possibilities of Reverter, see Gray, Perpetuities, §§ 13, 14, 31-41; and on the creation and transfer in futuro of rights in others' lands, e. g., rents, see Id. §§ 16, 17, 43.