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GIFTS TO THE HEIR AS PURCHASER (WITHOUT ANY
ESTATE IN THE ANCESTOR).
GIFTS to the heir, whether of the testator himself, or Gifts to
" heir,” how of another, are so frequently found in wills, and where construed. these instruments are the production of persons unskilled in technical language, the term heir is so often used in a vague and inaccurate sense, that to ascertain and fix its signification in regard to real and personal estate respectively, whether alone or in conjunction with other phrases which most usually accompany it, is a point of no inconsiderable importance. Like all other legal terms, the word heir, when unexplained and uncontrolled by the context, must be interpreted according to its strict and technical import; in which sense it obviously designates the person or persons appointed by law to succeed to the real estate in question, in case of intestacy. It is clear, therefore, that where a testator devises real estate simply
chap. xxvIII. to his heir, or to his heir at law, or his right heirs, the
devise will apply to the person or persons answering this description at his death, and who, under the recent enactment regulating the law of inheritance (a), would take the property in the character of devisee, and not, as formerly, by descent. And the circumstance that the expression is heir, (in the singular,) and that the heirship resides in, and is divided among, several individuals as co-heirs or coheiresses, would create no difficulty in the application of this rule of construction; the word “heir” being in such cases used in a collective sense, as comprehending any number of persons who may happen to answer the description; and which persons, if more than one, would, if there were no words to sever the tenancy, be entitled as joint tenants (6).
And it is to be observed, that such a devise (though passes feesimple. contained in a will made before the year 1838) vests in
the heir an estate in fee-simple, without words of limitation, or any equivalent expression, on the ground (to use the quaint though significant language of an early Judge (c)) that “ the word heir is nomen collectivum : and it is all one to say heirs of J. S., as to say heir of J. S., and heirs of that heir; for every particular heir is
in the loins of the ancestor, and parcel of him.” Heirs of the Upon the same principle it is well settled, that a body as purchasers. devise to the heirs of the body of the testator or of another
confers an estate tail; which estate, it is to be observed, will (unless stopped in its course by the disentailing act of the tenant in tail,) devolve to all persons who successively answer the description of heir of the body.
Devise to heir
(a) 3 & 4 Will. 4, c. 106, s. 3.
(6) Mounsey v. Blamire, 4 Russ. - 384.
(c) Per Pollexfen, in Burchett v. Durdant, Skinn. 205. See also Beviston v. Hussey ; Id. 385, 563.
The leading authority for this doctrine is Mandeville's chap. XXVIII. case (d ), the circumstances of which aptly illustrate the peculiar mode of devolution in such cases. John De Mandeville died leaving issue by his wife, Roberge, two children, Robert and Maude. A. gave certain lands to Roberge, and to the heirs of John de Mandeville, her late husband, on her body begotten; and it was adjudged that Roberge had an estate but for life, and the fee tail vested in Robert, (heir of the body of his father, being a good name of purchase,) and that then, when he died without issue, Maude, the daughter, was tenant in tail of the body of her father, per formam doni. “In which case, it is to be observed,” says Lord Coke, “ that albeit Robert, being heir, took an estate tail by purchase, and the daughter was no heir of his (John's) body at the time of the gift, yet she recovered the land per formam doni, by the name of heir of the body of her father, which, notwithstanding her brother was, and he was capable at the time of the gift; and, therefore, when the gift was made, she took nothing but in expectancy, when she became heir per formam doni.” As a devise to the heir general, in the singular, confers “ Heir of the
body" (in the (as we have seen) an estate in fee-simple, in like manner singular). with a devise to the heirs in the plural, on the ground that the word “ heir,” as nomen collectivum, includes the heirs of such heir, so, on the same principle, a devise to the heir of the body in the singular would doubtless be held to confer an estate tail by purchase on the person or persons first answering the description of heir of the body; but it has never been decided whether, under a devise to the heir of the body in the singular, the property would devolve successively to every indivi
Chap. xxvii. dual who should answer the description of heir of the
body, in like manner as under a devise to heirs of the body in the plural; or whether the estate would vest in, and be confined to, the individual who should first answer the description of heir of the body, and who would take an estate tail by purchase. The latter was evidently the opinion of Mr. Justice Taunton, in the case of Doe d. Winter v. Perratt (e), who, after citing Mandeville's case (f), and Southcote v. Stowell (g), said, “ In these instances, the estate tail arises out of proper words of limitation in the plural number, denoting a certain continuous line of posterity · heirs of the body.' But no such effect can be given to the word “heir,' • heir of the body,' ' right heir,' or next,' or first heir,' where they constitute only a mere designatio personæ.” The case, however, did not raise this precise point, as the words“ male heir,” occurring in the will then before the Court, were held to mean male descendant, in which sense they could not operate to confer an estate tail by force of the doctrine under consideration, any more than those words themselves would if employed by the testator. It seems difficult, however, to reconcile with this doctrine the case of Whitelock v. Heddon (h), where A. devised to his grandson C. all his estates, to him, his heirs, and assigns, except as thereinafter mentioned; that is to say, provided that in case his (testator's) son B. should have any son or sons begotten or born in lawful matrimony, then he devised the said estates to such (*) male issue as his son B. should or might have at the time of C.'s attaining the age of twenty-one years; but in case his said son B. should have any male issue, then he directed that C.
(e) 3 M. & Scott, 597, post, 385.
(h) i Bos. & Pull. 243.
should receive the rents, until twenty-one, as above men- chap. xxvIII, tioned : it was held, that a son of B., in ventre matris, on Devise to male C.'s attaining his majority, (and who was the eldest son in esse at that period, the first being dead,) took an estate tail by force of the word “issue,” and not a fee-simple by the effect of the word “ estates.” Lord C. J. Eyre said, that as the objects were the sons of the testator's son, who, it appeared, were to have his bounty in preference to the son of his daughter (for such C. was), and as “ issue" was a collective term, capable of being descriptive of either person or interest, or both, he thought it reasonable to understand the word “ issue” in its largest sense, so as to deem it descriptive of an estate tail male to the sons of B., as many as there should be, in order of succession. It is evident that the Court did not construe the Remarks upon
Whitelock v. words “ male issue” as synonymous with heirs male of Heldon. the body, inasmuch as the devise was held to take effect in favor of the son of B. in the lifetime of his father, so that the words were read as importing heir apparent of the body—a mode of construction which seems to bring the case into direct collision with Doe v. Perratt, in regard to the nature of the estate conferred by the devise; and, upon this point, the case of Whitelock v. Heddon (but which unfortunately was not cited in Doe v. Perratt) must be considered as overruled.
Where a testator has thrown into the description of “ Heir" with heir an additional ingredient or qualification, the devisee qualification. must answer the description in both particulars. Thus, a devise to the right heirs male of the testator, or to the right heirs of his name, is, according to the early cases,
the word “such," as if it meant
have.” The word, therefore, evi-