CHAP. XXXVII. and the absence in the other, of superadded words of

Distinction

where the

words of limitation change the course of descent.

Position of Mr. Preston examined.

limitation (9).

But it seems, that if the superadded words of limitation operate to change the course of descent, they will convert the words on which they are engrafted into words of purchase; as in the case of a devise to a man for life, remainder to his heirs and the heirs female of their bodies (). And the same principle of course would apply where a limitation to the heirs male of the body is annexed to a limitation to the heirs female, and vice versâ; but the books contain no such case, and the doctrine rests entirely on the position arguendo of Anderson, in Shelley's case, which, however, has been since much cited and recognised.

An eminent writer has laid it down (s), "that as often as the superadded words are included in, and do not in their extent exceed the preceding words; but the words heirs, &c. in the several parts of the gift are in terms, or at least in construction, of equal extent, the latter words are surplusage, and the preceding words, as connected with the limitation to the ancestor, will be taken to be words of limitation."

The position, that the preceding words are words of limitation where the superadded words do not exceed them, seems to be the reverse of the established rule; the very case put by Anderson, as an instance of their being words of purchase, is one in which the superadded words narrowed the preceding words; and, on the other hand, we have seen that, in all the cases in which the superadded words have been held to be inoperative, they

(9) See judgment in Doe d. Bosnall v. Harvey, 4 Barn. & Cress. 623.

(r) Per Anderson, in Shelley's case, 1 Rep. 91.

(s) 1 Prest. on Estates, 353.

have been either equal to, or more extensive than, the CHAP. XXXVII. words of limitation upon which they were engrafted (t).

superadded

fication incon

estate tail.

II. We next proceed to inquire as to the effect of Effect of coupling a limitation to heirs of the body with words of words of modimodification importing that they are to take concurrently sistent with an or distributively, or in some other manner inconsistent with the course of devolution under an estate tail, as by the addition of the words "share and share alike," or as tenants in common," or "whether sons or daughters," or "without regard to seniority of age or priority of birth.” In such cases, the great struggle has been to determine, whether the superadded words are to be treated as explanatory of the testator's intention to use the term heirs of the body in some other sense, and as descriptive of another class of objects, or are to be rejected as repugnant to the estate which those words properly and technically create. It will be seen, by an examination of the following cases, that, after much conflicting decision and opinion, the latter doctrine has prevailed, and it seems to stand on the soundest principles of construction. Those principles were violated, it is conceived, in permitting words of a clear and ascertained signification to be cut down by expressions, from which an intention equally definite could not be collected. The inconsistent clause shews only that Expressions the testator intended the heirs of the body to take in a the limitation manner, in which, as such, they could not take; not that persons other than heirs were meant to be the objects. To make expressions of this nature the ground of such an interpretation is to sacrifice the main scope of the devise to its details. The Courts have, therefore, wisely

(t) See ante p. 272.

superadded to

"to heirs of

the body."

CHAP. XXXVII.

"For ever as tenants in com

rejected the construction which reads heirs of the body with such a context as meaning children, and thereby restricts the testator's bounty to a narrower range of objects; for, it will be observed, that although children are included in heirs of the body, yet the converse of the proposition does not hold, for an estate tail is capable of transmission through a long line of objects whom a gift to the children would never reach, (as grandchildren and more remote descendants); to say nothing of the difference in the order of its devolution.

This rule of construction is supported by a series of decisions, commencing from an early period, and sufficiently numerous and authoritative to outweigh any opposing decisions and dicta which can be adduced.

Thus, in the case of Doe d. Candler v. Smith (u), where mon, and not as a testator devised his freehold lands to his daughter joint-tenants." A., and the heirs of her body lawfully to be begotten, for ever, as tenants in common, and not as joint-tenants; and in case his said daughter should happen to die before twenty-one, or without having issue on her body lawfully begotten, then over; Lord Kenyon, and the other Judges of the Court of King's Bench, held, that the daughter took an estate tail.

"Whether sons
or daughters,
as tenants in
common," &c.

So, in Pierson v. Vickers (x), where a testator devised his estates at B. unto his daughter A., and to the heirs of her body lawfully to be begotten, whether sons or daugh

(u) 7 Durn. & E. 532. It should be stated, that the reader will not find in this and some of the other cases of the same class any distinct recognition of the principle stated in the text; but as that principle is sanctioned by the later cases, and affords a more intelligible and definite guide than the doctrine of gene

ral and particular intention on which
some of these decisions proceed, the
writer has felt himself authorized to
rest them on the former ground.
An able and extended examination
of most of the cases stated in this
chapter, may be found in Mr.
Hayes's "Inquiry."
(x) 5 East, 548.

ters, as tenants in common, and not as joint-tenants; and in CHAP. XXXVII. default of such issue, over; Lord Ellenborough and the other Judges of the Court of King's Bench, held, on the authority of the last case, and Doe v. Cooper (y), that the daughter took an estate tail.

Again, in the case of Bennett v. Earl of Tankerville (z), where the devise was to the use of A. and his assigns for his life, without impeachment of waste, and, after his decease, to the heirs of his body, to take as tenants in common, and not as joint-tenants; and in case of his decease without issue of his body, then over; Sir W. Grant, M. R., held, that the devisee took an estate tail.

So, in Doe d. Cole v. Goldsmith (a), where a testator devised his lands to his son F. to hold to him and his assigns for his natural life, and immediately after his decease the testator devised the same unto the heirs of his body lawfully to be begotten, in such parts, shares, and proportions, manner and form, as F. should by will or deed devise or appoint, and, in default of such heirs of his body lawfully to be begotten, then immediately after his decease the testator devised the premises over to another son, J., in fee. It was held, by the Court of Com

mon Pleas, that F. took an estate tail.

Gibbs, C. J., ob

served, that it was the testator's evident intent that the estate should not go over to J. until all the "heirs of the body" of F. were extinct.

In such shares,

&c. as F. should

appoint.

In this and several of the preceding cases, much stress Observations. was laid on the words "in default of issue,” or “in default of heirs of the body," occurring in the devise over, or rather in the clause introducing such devise, as demonstrating a general intent" that the estate was not to go over until

(y) 1 East, 227, stated post. (*) 19 Ves 170.

(a) 7 Taunt. 209; S. C. 2 Marsh,

517.

CHAP. XXXVII. a general failure of issue of the first taker; but it is dif ficult to understand how this intention could be rendered more distinctly and unequivocally apparent by such referential language than by an express devise to these very objects.

In such shares

as W. should

but one child,

&c.

Case of Doe v.

We now proceed to the important case of Jesson v. appoint, and if Wright (b), which was as follows. A testator devised to W. certain real estate for the term of his natural life, he keeping the buildings in tenantable repair; and after W.'s decease devised the same to the heirs of the body of W. lawfully issuing, in such shares and proportions as W. by deed or will should appoint, and for want of such appointment, then to the heirs of the body of W. lawfully issuing, share and share alike, as tenants in common, and if but one child, the whole to such only child; and for want of such issue, then over. It was held by the Court of King's Bench that W. took an estate for life only, with remainder to his children for life as tenants in common. A writ of error was brought in the House of Lords, which Court, after a very full argument, reversed the decision. Lord Eldon observed: "It is definitively settled, as a rule of law, that where there is a particular and a general or paramount intent, the latter shall prevail, and courts are bound to give effect to the paramount intent (c). The decision of the Court below has proceeded upon the notion that no such paramount intent was to be found in the will." His lordship then read the devise, observing, that

Jesson in K. B.

Judgment of reversal in Dom. Proc.

(b) 2 Bligh, 1; from which the statement of the will is here taken.

(c) By "general intent," his lordship must be understood to mean an intent to include heirs of the body in the gift. It is submitted that those parts of the judgment in which Lord Eldon refers to the un

controlled force of the words heirs of the body, contain a more satisfactory explanation of the principle, than these passages. Lord Redesdale, it will be seen, strenuously insists upon this being the true ground of the decision.