held that such a case is excluded from the 31st section by the exception in the 30th section, and thus some effect would be given to this otherwise apparently idle clause of the statute; farther than this, (even if so far,) it is presumed the exceptive part of the 30th section could not be construed to qualify or control the operation of the 31st section, but decision alone can settle the point. CHAP. XXXIV. cluded by the Act. The enactments in question do not, beyond the particular Points not excases which have been pointed out, interfere with the general doctrines of construction discussed in the present chapter. Even under wills made or republished since the year 1837, it may still be questionable whether trustees take any estate or only a power; also whether they take an estate limited to the lives of the tenants for life of the beneficial interest, or an estate in fee-simple; and consequently there should be no relaxation in the anxious care of framers of wills to preclude ambiguity in this particular. It cannot, however, according to the suggested construction of the 31st section, under such wills become a question, whether trustees take an estate in fee, or a chattel interest, in order to raise money, or for any other purpose. The new doctrine would not, it is conceived, preclude the construction that trustees take an estate par autre vie, with a power of sale over the inheritance. The writer is not aware, however, of any adjudged instance of such a construction, for where an estate is devised to trustees indefinitely, the authorities (with one solitary exception (k), in which there seems to have been an opposing context,) conduct to the conclusion, that whatever duty is subsequently imposed on them, must be in virtue of their estate, the quality and duration of which are to be measured accordingly. The point, of course, depends on the conclusion to be fairly drawn from the entire will. (k) See Hawker v. Hawker, 3 Barn. & Ald. 537. 232 CHAPTER XXXV. WHAT WORDS CREATE AN ESTATE TAIL. Proper terms of limiting an estate tail. expressions cre- A LIMITATION to a person and the heirs of his body creates an estate tail general. If it be to him and the heirs male or the heirs female of his body, he takes an estate tail special, descendible in the male or female line, as the case may be. In the one case the land devolves upon the male issue and (unless the tenure be gavelkind or Borough-English (a),) according to the law of primogeniture, in the other upon the females as coparceners. If the estate tail be general, it will run in this manner through both lines, in their established order of succession. But though these are the correct and technical terms of limiting an estate tail, yet such an estate may be created in What informal a will by less formal language; indeed by any expressions denoting an intention to give the devisee an estate of inheritance, descendible to his or some of his lineal, but not to his collateral heirs, which is the characteristic of an estate tail as distinguished from a fee-simple. The former is transmissible to lineal descendants only; the latter in default of lineal devolves to collateral and now to ascendant heirs. Limitation to "heirs male," A devise to A. and his heirs male for ever (b), or to A. or "right heirs and his heirs male living to attain the age of twentyone (c), or to A. for life, and after his death to his heirs male, for ev er." male, or his right heirs male, for ever (d), has been held to CHAP. XXXV. confer an estate tail male; the addition of the word "male," as a qualification of "heirs," shewing that a class of heirs less extensive than heirs general was intended. And the same construction obtains, where a devise to a person and over in default his heirs (e), or to a person simply without any words of Limitation limitation (g), is followed by a devise over in case of his of "male death without an heir male. heir." It has even been decided that a devise to one, et hæredibus suis legitimè procreatis, creates an estate tail (h), though the addition merely describes a circumstance which is included in the definition of heir simply, an heir being ex justis nuptiis procreatus. Such was the doctrine of the early authorities, and it was recognised and followed in the more recent case of Nanfan v. Legh (i), where a devise to H. when he should attain twenty-one, "and to his heirs To A. and "his heirs lawfully lawfully begotten for ever," was held to make the devisee begotten. tenant in tail only. In the same will other property was devised to H. and his heirs simply, which it was contended afforded an argument in favour of construing the devise in question to give an estate tail; inasmuch as the testator, in varying the phrase, must have had a different intention. Being a case out of Chancery, we are not in possession of the reasons upon which the opinion of the Court was founded; but probably it was considered that the testator, by adding the expression "lawfully begotten," intended to engraft some qualification on the description of heir, and consequently must have meant an estate tail. It is clear that the words heir of the body (in the sin- To heir of the (d) Lord Ossulstone's case, 3 Salk. 336. Doe d. Earl of Lindsey v. Colyear, 11 East, 548. (e) Denn d. Slater v. Slater, 5 Durn. & E. 335. (g) Blaxton v. Slone, 3 Mod. 123. (h) Church v. Wyatt, Moore, 637; Co. Litt. 20. b.; Harg. n. 2. (i) 2 Marsh. 107; S. C. 7 Taunt. 85. CHAP. XXXV. gular. gular) operate as words of limitation, and consequently body in the sin confer an estate tail. Thus, it has been held, that under a devise to A. for life, and, after his decease, to the heir of his body for ever, A. is tenant in tail (k); and a devise to A. and such heir of her body as shall be living at her decease, has received the same construction (1). Limitation to next or first heir male. To "next heir male," with su of limitation. Nor is the effect varied by the word next or first being prefixed to "heir." Thus, in Burley's case (m), a devise to A. for life, remainder to the next heir male; for default of such male heir, then to remain, was adjudged to give an estate tail male to A. So, where (n) the devise was to M. and his wife for their lives, remainder to the next heir male of their two bodies, it was held, that M. and his wife were tenants in tail male. Again, a devise to A. for life, and after his death to the first heir male of his body, remainder over, has been adjudged to create an estate tail male (0). But though a devise to the next heir male, simply folperadded words lowing a devise to the ancestor for life, does not confer on the heir an estate by purchase, (the words being construed as words of limitation,) yet if the testator has engrafted words of limitation on the devise to the next heir male, he is considered as indicating an intention to use the term "heir" as a mere descriptio persona; in other words, as descriptive merely of the individual who fills the character of heir male at the ancestor's decease; the superadded words of limitation having the effect of converting the (k) Pawsey v. Lowdale, Sty. 249, 273. See also Wilkins v. Whiting, 1 Bulst. 219; 1 Roll. Ab. 896. (1) Richards v. Bergavenny, 2 Vern. 324. (m) Cited 1 Vent. 230. (n) Miller v. Seagrove, Rob. Gavelk. 96; and see 1 Ves. sen. 337. (0) Trollop v. Trollop, Rob. Gavelk. 76; 1 Atk. 412; and see Goodright v. Pullyn, 2 L. Raym. 1437. CHAP. XXXV. male and the heirs male of his body. expression, "next heir male," into words of purchase, an effect, however, which, (as will be shewn at large in the sequel,) does not, in general, belong to such superadded expressions of this nature. This rule of construction is founded on the authority of Archer's case (p), where lands To next heir were devised to A. for life, and after to the next heir male and the heirs male of the body of such next heir male, and it was unanimously agreed by the Court, that this was a contingent remainder to the heir, and that A. was but tenant for life, and he having made a feoffment of the devised lands, it was held that such contingent remainder was destroyed. But it should seem that this construction is not peculiar to such a case as Archer's; namely, where the word "next" is prefixed, and words of limitation are superadded to "heir male;" for a similar construction was adopted in a recent case, (Willis v. Hiscox) (q), where the former circumstance was wanting. The devise was upon trust for the testator's son, W., for life, and after his decease for the heir male of his body begotten on a European woman, and the heirs of such heir male, and in case the son should die without leaving such heir male of his body, the trustees were to pay the rents equally between the testator's daughters, M. and A., for their lives, and the whole to the survivor; and after the decease of the survivor, upon trust for the heir male of the body of M. and the heirs of such heir male, and in default of such heir male of her body, upon trust for the heir male of the body of A. and the heirs of such heir male. W. and M. both died without issue, after which, A., conceiving herself to be tenant in tail, suffered a recovery. A bill was filed by the heir male of the body of A. to compel a conveyance from the trustee; and Lord Cottenham considered his title so clear that he not only de(p) 1 Co. 66. (2) 4 Myl. & Craig. 197. "To heir male of the body," and his heirs. |