of both parents must be had for defeating the claims of the issue (n).

Nor will the Court read heirs of the body as first and other sons, where such a construction is negatived by any thing in the articles themselves: as if one part of an estate be limited to the husband for life, remainder to the wife for life, remainder to the first and other sons in tail, and another part be given to the husband for life, remainder to the heirs male of his body; for, as it appears the parties knew how a strict settlement should be framed, the limitation of part of the estate in a different mode could only have proceeded from a different intention (0).

It was formerly argued, that daughters in marriage articles were not entitled to the same consideration as sons, on the ground that they do not, like sons, continue the name of the family, and are generally provided for, not by the estate itself, but by portions out of the estate; but it is now clearly settled, that, as they are purchasers under the marriage, and are entitled to some provision, the Court will in their favour construe heirs female to mean daughters (p); and, except the articles themselves make an express provision for them by way of portion, &c. (q), will hold daughters, as well as sons, to be included under the general term of heirs of the body (r), or issue (s). And the settlement will be executed on the daughters, in default of sons, as tenants in common in tail general, with cross remainders between them.

(n) Highway v. Banner, B. C. C. 584.

1

(0) Howel v. Howel, 2 Ves. 359; and see Powell v, Price, 2 P. W. 535; Chambers v. Chambers, Fitzgib. Rep. 127; S. C. 2 Eq. Ca. Ab. 35.

(p) West v. Errissey, 2 P. W. 349.

(q) Powel v. Price, 2 P. W. 535; and see Mr. Fearne's observations, Conting. Rem. 103.

(r) Burton v. Hastings, Gilb. Eq. Rep. 113; S. C. 1 Eq. Ca. Ab. 393, per Lord Cowper.

(s) Hart v. Middlehurst, 3 Atk. 371; and see Maguire v. Scully, 2 Hog. 113; S. C. 1 Beat. 370.

Again, if in articles a party covenant to settle goods and chattels upon the same trusts, and for the same intents and purposes, as the freeholds were before settled, the Court will not apply the limitations to the personal estate literally, the effect of which would be to vest the absolute interest in remainder in the first son on his birth, but will insert a proviso that will have the effect, at least to a certain extent, of making the personal estate follow the course of the real.

Sir Joseph Jekyll said, the practice of conveyancers was to insert a limitation over on "dying under 21 (t);" but Lord Hardwicke conceived the common limitation over to be on "dying under 21 without issue (u)." In The Duke of Newcastle v. The Countess of Lincoln (x) the chattels were articled to be settled to the same uses as the realty, viz. to A. for life, remainder to the first and other sons in tail male, remainder to B. for life, remainder to B.'s first and other sons in tail male, remainders over. A. died, having had a son, who lived only nine months. Lord Loughborough said, "I perfectly agree that in wills you are not to do for the testator all that can be done by law; you are to do for the testator no more than what he has intended to be done, and according to the common acceptation of the words. But I put it to you whether in the nature of things there is not a radical and essential difference between marriage settlements and wills. The parties contract upon a settlement for all the remainders; they are not voluntary, but within the consideration; the issue are all purchasers. Suppose then a settlement to be made of freehold estate, and as to the leasehold estate there is only this article, that the settlement shall be analogous to that of the

(t) Stanley v. Leigh, 2 P. W.

690.

(u) Gower v. Grosvenor, Barn.

63; S. C. 5 Mad. 348.
(x) 3 Ves. 387.

freehold do I execute it, and make a like settlement, by giving an interest which cuts off all the issue? Suppose a bill was brought to carry the settlement into effect after a child had lived a single day; should I permit the father to say it was his property? It is utterly impossible to make the identical settlement of the leasehold estate as of the freehold; but if I am to make it in analogy to the settlement of the freehold, shall I not carry it on to all the near events, or shall they fail because I cannot embrace all the remote events (y)? My opinion decidedly is, that, in the case of marriage articles, the settlement should be such that no child born and not attaining twenty-one should, by his birth, attain a vested interest to transmit to his representatives, and thereby defeat the ulterior objects of the articles, which are not decidedly in favour of one son, but equally extended to every son; and that I take to be the settled rule and established practice (z)." His Lordship therefore held that the leaseholds had not vested absolutely in the deceased son of A., and ordered a proviso to be inserted in the settlement, that they should not vest absolutely in any son of B. who should not attain twenty-one or die under that age leaving issue male. From this decision an appeal was carried to the House of Lords (a), but, before the cause could be heard, a son of B. having attained twenty-one, the decree was, that the son of B. had become absolutely entitled. Thus the House of Lords decided that the absolute interest had not vested in the first tenant in tail on his birth; but what proviso ought to have been inserted, whether a limitation over "on dying under twenty-one," or "on dying under twenty-one without issue male," the House in event was

(y) Ib. 394.

(z) Ib. 397.

(a) 12 Ves. 218.

not called upon to determine. The order of the House of Lords in this case was made with the full approbation of Lord Ellenborough and Lord Erskine, who took part in the debate; and Lord Thurlow, it seems, entertained a similar opinion (b). But Lord Eldon denied there was any distinction between articles and wills, and therefore, relying upon Foley v. Burnell, and Vaughan v. Burslem, two cases upon wills decided by Lord Thurlow, he said, had the cause come originally before him, he should have decreed the absolute interest to have vested in the eldest child upon birth; that, notwithstanding several dicta in favour of a limitation over, no case could be found in which articles had been actually so executed; that assignments had been made of leasehold property under the notion that a son when born would take an absolute interest, and, were the House to sanction the decree of Lord Loughborough, it would shake a very large property (c). However, his Lordship conceived that Lord Hardwicke's doctrine was originally the best, and therefore, recollecting the opinion of that great Judge, the opinion of Sir Joseph Jekyll, and the decision of the Court below, and knowing the concurrent opinions of Lord Ellenborough and Lord Erskine, and also the opinion of Lord Thurlow, (whose present sentiments, however, he could not reconcile with the cases of Foley v. Burnell and Vaughan v. Burslem, formerly decided by his Lordship (d),) he bowed to all these authorities, and, though he was in some degree dissatisfied with the determination, he nevertheless would not move an amendment (e).

(b) 12 Ves. 237.

(c) Ib. 236, 237.

(d) Lord Eldon could not reconcile Lord Thurlow's opinion with these cases, because his Lordship

refused to admit the distinction between articles and wills.

(e) The Countess of Lincoln v. The Duke of Newcastle, 12 Ves. 237.

It must be observed, that a settlement of the personalty cannot be made exactly analogous to a settlement of the realty, whether the limitation adopted be" on dying under twenty-one," or "on dying under twenty-one without issue." For if the former be supposed, then, the object of the articles being to knit the leasehold estate to the freehold, if the son die under age leaving issue who will succeed to the freehold, the two estates will go in different directions (ƒ). But, if the limitation be on " dying under twenty-one without issue," then, if the son die leaving issue, the grandchild may die under age and unmarried, when the leaseholds will go to his personal representative, while the freeholds will devolve on the second son; not to mention that the son may at fourteen make a will of the leaseholds subject to the contingency of his dying without issue (g), so that, if the grandchild live, he will take the leaseholds at the mercy of the parent; and, even if the son make no will, the grandchild will not be entitled to the whole of the chattels, the widow of the intestate laying claim to her thirds. The case of The Countess of Lincoln v. The Duke of Newcastle appears to be the only one upon the subject, and that has sanctioned the insertion of the proviso, "on dying under twenty-one without issue."

Again, in articles, as jointenancy is an inconvenient mode of settlement on the children of the marriage, (for, during their minorities no use can be made of their portions, as the jointenancy cannot be severed (h),) the Court will rectify the articles by the presumed intent of the contract, and will permit words, that would be construed

(f) Countess of Lincoln v. Duke of Newcastle, 12 Ves. 228. (g) Ib. 229.

(h) Taggart v. Taggart, 1 Sch.

& Lef. 88, per Lord Redesdale; and see Rigden v. Villier, 3 Atk. 734, and Marryat v. Townley, 1 Ves. 103.