271 CHAPTER XXXVII. WHAT WILL CONTROL THE WORDS "HEIRS OF 1. Effect of superadded Words of Li mitation. II. Words of modification inconsist ent with the devolution of an III. Clear words of explanation. I. It has been already shewn, that a devise to A. and to the heirs of his body (a), or to A. for life, and, after his death, to the heirs of his body (6), vests in A. an estate tail. On a devise couched in these simple terms, indeed, no question can arise; for wherever the contrary hypothesis has been contended for, the argument for changing the construction of the words has been founded on some expressions in the context; as where words of limitation are superadded to the devise to the heirs of the body; the effect of which has been often agitated, and will here properly form the first point for inquiry. Where the superadded words amount to a mere repetition of the preceding words of limitation, they are of course inoperative to vary the construction. Expressio eorum quæ tacite insunt nihil operatur. Thus, in Burnett v. Coby (c), where a testator devised (a) Ante, p. 232. (b) Ante, p. 241. (c) 1 Barn. B. R. 367. See also Shelley's case, 1 Rep. 93; Legatt v. Sewell, 2 Vern. 551; S. C. 1 Eq. Ca. 394, pl. 7; 1 P. W. 87. See 2 Ves. sen. 657, where the trust was Effect of controlling "heirs text in con of the body." Similar limita tion superadded. CHAP. XXXVII. lands to A. for life, and, after his decease, to the heirs male of the body of A., and the heirs male of such issue male, it was held, that A. had an estate tail. Superadded limitation to heirs general of heirs of the body. It is also well established that a limitation to the heirs general of the heirs of the body, is equally ineffectual to turn the latter into words of purchase. Thus, in the case of Goodright d. Lisle v. Pullyn (d), where a testator devised lands to N. for life, and, after his decease, then he devised the same unto the heirs male of the body of N., lawfully to be begotten, and his heirs for ever; but if N. should happen to die without such heir male, then over; the Court was of opinion, that the devise vested an estate tail in N. A similar decision was made by the Privy Council on a similar devise (e). So, in Wright v. Pearson (f), where the devise was to R. and his assigns for his life, remainder to trustees to support contingent remainders, remainder to the use of the heirs male of the body of R., lawfully to be begotten, and their heirs; provided that in case R. should die without leaving any issue male of his body living at his death, then the testator subjected the premises to certain charges, and, in default of such issue male of R., he devised the premises to certain grandchildren, or such of them as should be living at the time of the failure of issue of R.; Lord Keeper Henley held it to be an estate tail in R. Again, in Denn d. Geering v. Shenton (g), where the such superadd- testator devised lands to S. to hold to him and the heirs Construction not varied by ed words. (d) 2 Lord Raym. 1437; S. C. 2 Stra. 729. (e) Morris d. Andrews v. Le Gay, noticed 2 Burr. 1103, and 2 Atk. 249, and more fully and somewhat differently stated under the name of Morris v. Ward, by Lord Kenyon, 8 Durn. & E. 518. (f) 1 Ed. 119; S. C. Amb. 358; Fea. C. R. 126, where the case is very fully commented on. See also Alpass v. Watkins, 8 Durn. & E. 516. (g) Cowp. 410. See also Alpass v. Watkins, 8 Durn. & E. 516. of his body lawfully to be begotten, and their heirs for ever, chargeable with an annuity to M. for life; but in case S. should die without leaving issue of his body, then the testator devised the lands to W. and his heirs, chargeable as aforesaid, and also subject to the payment of £100 to A. within one year after W. or his heirs should become possessed of the premises. It was contended, on the authority of Doe v. Laming (h), that the words heirs of the body might be words of purchase, with these superadded words of limitation, and that this construction was much strengthened by the circumstance of the legacy of £100, which must have referred to a dying without issue at the death, and not to an indefinite failure of issue, which might happen a hundred years thence. But Lord Mansfield, and the rest of the Court of King's Bench, held it to be a clear estate tail in S. Even if the devise over had been made in express terms to depend on the prior devisee leaving no issue at the time of his death, this would not, according to the case of Wright v. Pearson (i), have prevented the prior devisee taking an estate tail. So, in Measure v. Gee (k), where the devise was to J. for his life, remainder to trustees to preserve contingent remainders, and, after the decease of J., the testator devised the premises to the heirs of the body of J. lawfully to be begotten, his, her, and their heirs and assigns for ever; but in case there should be a failure of issue of J. lawfully to be begotten, then over. It was contended, that the early cases on this subject had been shaken by (h) 2 Burr. 1100, as to which see post 287. (i) Ante, p. 272. (k) 5 Barn. & Ald. 910. See also King v. Burchell, 1 Ed. 424; Denn VOL. II. T v. Puckey, 5 Durn. & E. 299; Frank CHAP. XXXVII. CHAP. XXXVII. modern decisions; but the Court of King's Bench considered them to be irrelevant (7), and held, that the devise vested an estate tail in J. nor by interposition of estate This case, as well as Wright v. Pearson, shews that to preserve con- the interposition of trustees to preserve contingent remainders is inoperative to invest superadded words of limitation with any controlling efficacy. tingent remainders. As to heirs of the body being directed to assume testator's name. The next case in order is Kinch v. Ward (m), where a testator devised freehold and leasehold lands to trustees, in trust to permit his son T. to receive the rents for his life, and, after his decease, the testator devised the same to the heirs of the body of his said son lawfully begotten, their heirs, executors, administrators, and assigns for ever; but in case he should die without issue, then over. It was assumed, in the discussion of another question, that the devise of the freehold lands vested in T. an estate tail. And it is clear, that the circumstance of the heirs of the body being directed to assume the testator's name, does not constitute a ground for varying the construction, although the effect is, by enabling the ancestor to acquire the fee-simple, to place within his power the means of rendering the injunction nugatory (n); this being, in fact, merely one of the consequences which a testator does not usually intend or foresee, when he employs words that, in legal construction, make the first taker (1) The only case cited in Measure v. Gee, which afforded a shadow of opposition to the principle of the cases in the text, was Doe v. Goff, 11 East, 668, which had other circumstances, and has been, as we shall presently see, itself overruled by the highest authority, post p. 291. (m) 2 Sim. & Stu. 411. (n) Such a condition, too, if im posed on a person taking an estate tail by purchase, would (unless made a condition precedent) be liable to be defeated by an enrolled conveyance, which, like a common recovery, destroys all estates limited in defeazance of, as well as those which are made to take effect after, the determination of the estate tail. tenant in tail, and which consequences, whether appre- CHAP. XXXVII. hended or not, do not authorize the testator's judicial expositor to divert his bounty into another channel, by giving to his language a strained construction, which would make it apply to a different class of objects. Thus, in the case of Nash v. Nash (o), where a testator devised lands to trustees, and the survivor of them, and the heirs of such survivor, in trust for F. W., then an infant, till he should arrive at the age of twenty-one years, upon his legally taking and using the testator's surname; and then, upon his attaining such age, and taking that name, habendum to him for life; and from and after his decease, to hold to the trustees and the survivor of them, and the heirs of such survivor, to preserve contingent remainders, in trust for the heirs male of F. W., taking the testator's name, and the heirs and assigns of such male issue for ever; but in default of such male issue, then over. It was held, that the trustees did not take the legal estate in the lands devised (p), but that F. W. had a legal estate tail in them on his coming of age and adopting the testator's surname. cases. Down to the very latest period, then, we have a con- Result of the firmation, if confirmation were wanted, of the inadequacy of words of limitation in fee annexed to heirs of the body to control their operation. The only remark suggested by the recent decisions is an expression of surprise that adjudication should be deemed necessary on a point so clearly settled by anterior decisions; and our surprise is greatly increased, when, in such a state of the authorities, we find a distinguished Judge attempting to found a distinction between the two cases, on the mere existence in one, (0) 3 Barn. & Adol. 839. (p) On this subject, see ante, p. 228. |