CHILD, CHAP.XXXVIII. "eldest son,' collectivum. But, it is not to be inferred from the preceding cases, that a devise, definitely pointing out the eldest, or any Whether term, other individual son, will, (unaided by the context), have used as nomen the effect of conferring an estate tail on the parent; and this remark is advanced without losing sight of the case of Chorlton v. Craven (h), where the devise was, to Thomas Chorlton during his natural life, with remainder to the first son of the body of the said Thomas in tail male, lawfully begotten, severally and successively; and for want of such lawful issue, either of his son Thomas Chorlton and his son James Chorlton, then the testator devised the estate to his daughters and their children, share and share alike. The Court of King's Bench, on a case from Chancery, certified Thomas to be tenant in tail male (i); which was confirmed by the Chancellor, and in 1823 the Court of Exchequer came to the same decision upon the same devise. Remark on In this case, probably, the words "severally and successively" may have assisted the conclusion at which the Court arrived, but these words would have more force if the devise were in the exact terms of the brief statement which has been handed down to us than if the estate tail were created in more formal language-i. e. by a devise to the eldest son, and to the heirs male of his body, in which case the words in question would seem to refer to the mode of taking by the heirs; otherwise they give rise to a strong suspicion that a devise to the second and other sons successively in tail was inadvertently omitted. The absence of all information as to the pre (h) 2 Barn. & Cress. 524; S. C. 3 Dowl. & Ryl. 808. (i) The fact of the devise being held to confer an estate tail male (which appears by the statement in one of the reports, Dowling & Ry land's, only) is important, as shewing that the devise to the son had some influence on the decision; as the subsequent words, if they had led to this result, would seem to have pointed to an estate tail general. cise grounds of the decision greatly detracts from its CHAP.XXXVIII. value as a general authority. A question of this kind was much discussed in the recent case of Doe d. Burrin v. Chorlton (k); where a testator devised a messuage to his kinsman S. C. for his life, and after his decease to the eldest son of S. C., but for want of such issue, then to his (S. C.'s) daughters or daughter, share and share alike, for ever; but in case his said kinsman had no issue, then to hold to S. C., his heirs, and assigns for ever. It was contended, on the authority of the last case, that the word "son" was to be construed as nomen collectivum; and consequently that S. C. took an estate tail male, precedent to the general estate tail, which was assumed to arise by implication from the words referring to a failure of issue in the devise over (7). But the Court decisively negatived this construction, being of opinion that neither the devise to the eldest son alone, nor the words "for want of such issue" following such devise, created an estate tail. In none of the cases had there been that strict reference to a single individual which occurred in the case before the Court, except in Chorlton v. Craven, where considerable weight was probably attached to the expressions "severally and successively." (k) 1 Scott's New Rep. 290; S.C. 1 Mann. & Grang. 429. And see Foord v. Foord, 3 B. P. C. Toml. ed. 124. Devise to “el dest son" held not to confer an estate tail male. 328 CHAPTER XXXIX. " ISSUE," WHERE CONSTRUED AS A WORD OF I. Devises to a Person and his Is- II. Devises to A. for Life, with added Words of Limitation. 2. Words of Distribution and Modification inconsistent with an Estate Tail. 3. Clear Words of Explanation. Issue synonymous with Sons and Children. 4. Devise over in case of failure of Issue at the Death. "Issue" a word of limitation, when. I." ISSUE" is nomen collectivum, and a word of very extensive import. The term embraces descendants of every degree whensoever existent, and, unless restricted by the context, cannot be satisfied by being applied to descendants at a given period. The only mode by which a devise to the issue can be made to run through the whole line of objects comprehended in the term, is by construing it as a word of limitation, synonymous with heirs of the body, by which means the ancestor takes an estate tail; an estate capable of comprising in its devolution, though not simultaneously, all the objects embraced by the word "issue" in its largest sense. Opinions certainly have differed as to the signification of the word issue. It has been denominated by some Judges and writers a word of limitation; and a devise to A. and his issue has even been stated by an eminent Judge as "the aptest way of describing an estate tail CHAP. XXXIX. according to the statute (a);" by others, "issue" has been called a word of purchase, or an ambiguous word (b). However it is not from such dicta that the true legal acceptation of the word is to be collected, but from the adjudications fixing its operation. Unhappily, some discordancy prevails even here, and an examination of the cases will serve to evince that, in the enunciation of any general proposition on the subject, the utmost caution is requisite. With regard, however, to a devise simply to a person and his issue, no doubt can at this day be raised as to its conferring an estate tail; and it may be observed, that such a devise is not (like a devise to a person and his children (c)) dependent on, or, it seems, in the least degree, influenced by, the fact of there being or not being issue of the devisee living at the date of the will, or at any other period (d). Upon the same principle as that on which, in the cases just referred to, the devisee is held to be tenant in tail, where the property can reach the children in no other way, he is here construed to take an estate tail at all events, namely, because there is no other mode by which the testator's bounty can be made to flow to and embrace the whole range of intended objects (e). (a) Per Lord Thurlow in Hockley v. Mawbey, 1 Ves. jun. 149. (b) See judgment in Ginger d. White v. White, Willes, 348; Roe d. Dodson v. Grew, 2 Wils. 324; Doe d. Cooper v. Collis, 4 Durn. & E. 299; Earl of Orford v. Churchill, 2 Ves. & Bea. 67; Lyon v. Mitchell, 1 Madd. 473; Tate v. Clarke, 1 Beav. 105; Doe d. Gallini v. Gallini, 3 Adolph. & Ell. 340. (c) Ante, 307. (d) Lord C. J. Hale, in King v. Melling, 1 Vent. 231, says, "though the word children may be made nomen collectivum, the word issue is nomen collectivum of itself.” Devise to A. and his issue simply. (e) It seems extremely probable To A. and his eldest issue male, would now be held CHAP. XXXIX. issue living at his death. It has even been held, that a devise to A. and his issue To A. and his living at his death creates an estate tail in A. (g). In such a case, it is clear, the issue cannot take as joint-tenants with him, since the objects are not ascertainable until the death of the parent. It is only through him that they can become entitled, and the case falls, therefore, within the principle of the rule in Wild's case, namely, that the parent must take an estate tail, in order to let in the other objects. Had the devise been to A. for life, with remainder to the issue living at his death, the case would have been different (i). All the objects might then have taken by purchase (k). Effects of words of modification inconsistent with an estate tail. So far, the cases present little that can be the subject of controversy; but difficulty frequently arises from the introduction into the devise of expressions inconsistent with the course of devolution or enjoyment under an conciled with later cases, especially (g) University of Oxford v. Clif- (i) See Lethicullier v. Tracy, 3 Atk. 774, 784; Amb. 204, 220; 1 Hanmer's Cases, 56, S. C. (*) Considering the inclination manifested in some of the recent cases to construe a devise to a person and his children as amounting to a devise to A. for life, with remainder to his children (ante, 313, 317), perhaps the reader will not be disposed to place implicit confidence in the adjudication that a devise to A. and his issue, living at his decease, gives to A. an estate tail. There would seem to be less difficulty, in such a case, in reading the gift to the issue as a remainder, than in that of a devise to A. and his children, which remainder, however, being contingent, would be destructible during the life of A. At all events, there can scarcely be a doubt that the words in question applied to personal estate would be construed in the manner suggested, namely, as giving a life interest to A., with a contingent disposition of the ulterior interest to the issue living at his death. |