that devise to CHAP. XXXVII. V. Congreve (r), where a testator devised real estate to A. Declaration for life, and after his decease to the heirs of his body, and heirs of the body So on to several other persons by way of remainder in be in strict set- like manner, and then declared that all the aforesaid was intended to tlement. limitations were intended by him to be in strict settlement, with remainder to his own right heirs for ever; and the Court of C. P. certified an opinion that these ambiguous words did not prevent the devisees from taking estates tail under the prior words of devise; which certificate was afterwards confirmed by Lord Langdale, M. R., who observed, "In the present case there is no executory trust. It is a case of direct devise of the legal estate, and in terms which, according to the rules of law, give an estate tail to the plaintiff; and it does not appear to me, that the words, "in strict settlement," can have the legal effect of altering that estate. An executory trust would have admitted greater latitude of interpretation, and the effect of the words might have been different." (x) 5 Scott, 223; S. C. 1 Beav. 59. 307 CHAPTER XXXVIII. "CHILDREN," "CHILD," "SON," "DAUGHTER," WHERE WORDS OF LIMITATION. I. Rule in Wild's Case. II. "Child," "Son," Daughter," 99.66 &c., where used as nomina collec- where a word of limitation. Rule in Wild's I. THE rule of construction commonly referred to as children, the doctrine of Wild's case (a) is this; that where lands are devised to a person and his children, and he has no child at the time of the devise, the parent takes an estate tail; for it is said, "the intent of the devisor is manifest and certain that the children (or issues) should take, and as imme- case. diate devisees they cannot take, because they are not in rerum naturá, and by way of remainder they cannot take, for that was not his (the devisor's) intent, for the gift is immediate; therefore such words shall be taken as words of limitation." In support of this position, a case is referred to, as reported by Serjeant Bendloes (b), in which the devise was to husband and wife, "and to the men children of their bodies begotten," and it did not appear that they had any issue male at the time of the devise, and therefore it was adjudged that they had an estate tail to them and the heirs male of their bodies. The principle has been followed in several subsequent cases. (a) 6 Rep. 17; S. C.Anon., Gouldsb. 139, pl. 47; S.C. nom. Richardson v. Yardley, Moore, 397, pl. 519. CHAP.XXXVIII. child or children for ever. Thus, in Davie v. Stephens (c), where a testator devised to his son S., when he should accomplish the full age of twenty-one years, the fee-simple and inheritance of Lower To A. and his Shelstone, to him and his child or children for ever, but if he should happen to die before twenty-one, then over to testator's wife for ever. S. was unmarried at the death of the testator, and it was held that he took an estate tail, there being no children to take an immediate estate by purchase. The meaning, Lord Mansfield said, was the same as if the expression had been "to S. and his heirs, that is to say, his children or his issue." The words "for ever" made no difference, for the heirs (of the body) of S. might last for ever (d). Observations upon Hodges v. Middleton. So, in the case of Seale v. (c) Dougl. 321. The case of Wharton v. Gresham, 2 W. Blackst. Rep. 1083, is generally classed with these cases; but as the devise was to J. W. and his sons in tail male, it is clear that he took an estate tail without construing "sons" as a word of limitation; and the only consequence of the non-existence of a son was his exclusion from taking immediately under the devise. (d) In Hodges v. Middleton, Doug. 431, Lord Mansfield and the Court of King's Bench inclined to think that, where a testator devised to A. for life, and after her death to her children, upon condition that she or they constantly paid 301. a-year for a clergyman to officiate in her chapel, and on failure thereof to testator's own next heirs, and in case of failure of children of A., then to her brother G., &c., A. had an estate tail; or that, if she took an estate for life, the children took an estate and as recoveries had been suf tail; Barter (e), where the devise fered by both, the alternative of these propositions was not material. As the limitation to the children in this case was by way of remainder, there seems to have been no ground, whether a child existed at the date of the will or not, for holding the parent to be tenant in tail. It is as difficult to perceive any satisfactory reason for giving the children estates tail. The direction to pay the 307. a-year would have enlarged their devise to a fee-simple. See sup. 173. (e) 2 Bos. & Pull. 485; but see Doe d. Davy v. Burnsal!, 6 Durn. & E. 30; S. C. nom. Burnsall v. Davy, 1 Bos. & Pull. 215; Doe d. Gillman v. Elvey, 4 East, 313, post, where it seems to have been taken for granted that, under a devise to A. and his issue, the issue took by way of remainder; and it is observable that, in the case of Heron v. Stokes, 1 Dru. & Warren, 107, Sir Edward Sugden suggested that the more natural construction of a gift to one and his his children was in these words, "It is my will that all my lands and CHAP.XXXVIII. estates shall after my decease come to my son J., and his To J. and children lawfully to be begotten, with full power for him lawfully to be to settle the same, or any part or parts thereof, by will begotten. or otherwise, on them or any of them, as he shall think proper, and for default of such issue, then," over in like manner to a daughter. J. had no child at the date of the will, or at the death of the testator. The Court of Common Pleas, on the authority of Wild's case, Wharton v. Gresham, and several other cases, (which the writer has referred to other grounds, as they did not involve the inquiry whether the devisee had children or not at the time), held, that J. took an estate tail, the Chief Justice (Lord Alvanley) expressly intimating that the Court gave no opinion as to what would have been the construction if there had been children born at the time of the devise. Again, in the recent case of Broadhurst v. Morris (ƒ), Devise in rewhere the testator devised all his share of his two and to his children lawfully estates in W. to his daughter E. for life, and at her de- begotten for cease to F., her husband, during his life; and at the decease of his said son-in-law, F., he directed that the whole legacy to him should go to his (testator's) grandson, B., and to his children, lawfully begotten, for ever; but, in default of such issue at his decease, then over. B. was unmarried at the death of the testator. children, there being no children in esse at the time, and that which he should have adopted in the absence of authority the other way, would be to hold it to be a gift to the parent for life, with remainder to the children. These remarks do not shew that this eminent judge considered that the authorities would have left him free to adopt such a construction, if the point had called It was contended, that for decision. He would doubtless (ƒ) 2 Barn. & Adolph. 1. mainder to B. ever. CHAP.XXXVIII. the words "at his decease," distinguished the present case Suggested modification of the terms of the rule. from the previous authorities; and it was also suggested, that, by the effect of the words "for ever," the children might take the fee; but the Court of K. B. certified, (the case being from Chancery,) that the devise conferred an estate tail on B. Thus, the cases have established, it should seem, that a devise to a man and his children, he having none at the time of the devise, gives him an estate tail. The time of the devise appears to denote rather the period of the making of the will, than the time of its taking effect, and yet it is impossible not to see that the material period in regard to the evident design of the rule, is the death of the testator, when the will takes effect. The object of the rule manifestly is, that the testator's intention in favour of children shall not in any event be frustrated; but if it be applied only in case of there being no child living at the time of the making of the will, the accident intended to be so carefully guarded against may occur. For suppose there should happen to be a child or children at that time, who should subsequently die in the testator's lifetime, so that no child was living at his death; in this case, though there was no child to take jointly with the parent, yet the rule would not be applied in favour of after-born children. On the other hand, in the converse case, namely, that of there being a child at the death, but not at the date of the will, an estate tail would be created, though there was a child competent to take by purchase, so that the ground upon which that construction has been resorted to did not exist. Indeed a still more absurd consequence may follow from an adherence to the literal terms of this rule of construction in the latter case; for suppose there is no child at the making of the will, but a child subsequently |