CHAP. XL. Remarks on quently, their estates for life must be similarly enlarged; still the question arises, whether such estate tail in the sons and daughters of the testator is immediate, or whether it is not to be postponed until after the estate tail in the children of such sons and daughters has taken effect? If we consider the clause of the will last referred to as giving an immediate estate tail to the children, the previous devise to the grandchildren as tenants in common in tail is defeated: whereas, if we hold the devise to the children of the testator to be an estate in tail, but to be a devise in remainder only, in that case the limitation for life to the children will take effect, and the devise to the grandchildren as tenants in common in tail, in remainder; and the general remainder over, to the children of the testator in tail, will also take effect, and will effectually secure the descent of the property in the line of the testator's family, as long (to use the testator's own expression in his will) as 'there shall be any stock or offspring of the testator remaining.'' It seems, then, that we have at length arrived at the sound and reasonable rule, that where an estate is devised to a person for life, with remainder to his children, or to his sons or daughters, with a devise over on the failure of the issue of the devisee for life, and the latter words are held to create an estate tail in the parent (but which they will do only under a will which is subject to the old law), the devise to the children, sons or daughters, is not unnecessarily and wantonly sacrificed to this object; but the parent, i. e. the devisee for life, takes an estate tail in remainder, expectant on the determination of the prior estates of his children, sons or daughters, (as the case may be). And there seems to be no reason why this construction should not prevail as well where the prior de vise to the children's sons or daughters confers estates tail in remainder, expectant on the parent's life estate, as where those devisees take estates for life, unless the cases of Bamfield v. Popham, and Blackborn v. Edgley, should be considered as conclusive authorities against such a construction. Indeed, in the case of Doe v. Gallini, the children of the testator's sons and daughters were held to take estates tail in the first instance, with remainder in tail to the sons and daughters; as, notwithstanding the apparent restriction of the estates of such issue to life estates, they were held to take estates tail by force of the word "issue," as a word of limitation, strongly aided by the context. 3. An examination of the preceding cases will suffice to shew how numerous, and, in some instances, how refined, are the distinctions upon which the construction of words importing a failure of issue depends. They cannot, it is conceived, but suggest the wish, that these words had been more strictly confined to the office of merely connecting the two limitations between which they are interposed; and that whenever the preceding devise embraced any class of issue, they had been considered as referential to those objects, which is the established rule in regard to the expression such issue. The application of this rule to the cases under consideration would have required only the implication of the word "such." Though, in the state of the authorities, it may seem dangerous to advance any general conclusions upon the subject, the writer ventures to submit the following propositions, as deducible from the cases; in framing which, to avoid the risk of misleading the reader, he has cautiously adhered to the circumstances of the several cases, without extending his CHAP. XL. General re marks on pre ceding cases. CHAP. XL. Conclusions suggested. positions to others apparently within the scope of the principle. 1st. That the words, in default of issue, or expressions of a similar import, following a devise to children in tail or in fee-simple, mean in default of children (h). This is free from all doubt. 2nd. That these words following a devise to all the sons successively in tail male, and daughters concurrently in tail general, are also to be construed as signifying such issue, even in the case of an executory trust (i). 3rd. That words devising over the property on failure of issue male, following a devise to the whole line of sons successively in tail male, are also referential to those objects (k); but not, it seems, where such sons take for life only, in which case the words in question raise an implied estate tail in the parent (7). 4th. That where there is a prior devise to a definite number of sons only in tail male, with a limitation over in case of default of issue or issue male of the parent, an estate tail will be implied in the parent, in order to give a chance of succession to the other sons (m). 5th. That, in the case of executory trusts, words importing a dying without issue, following a devise to the first and other sons of a particular marriage in tail male, authorize the insertion of a limitation to the pa (h) Goodright v. Dunham, Doug. 764, ante, 373. See also Ginger d. White v. White, Willes, 348, ante, 372. (i) Blackborn v. Edgley, 1 P. W. GOO, ante; Morse v. Marquess of Ormonde, 5 Madd. 99, ante. (k) Bamfield v. Popham, 1 P.W. 54, 760; 1 Eq. Ca. Ab. 183; 2 Vern. 427, 449, S. C., ante. (1) Wight v. Leigh, 15 Ves. 464; but as to which see ante, 387. (m) Langley v. Baldwin, 1 P. W. 759; 1 Eq. Ca. Ab. 185, pl. 29; 1 Ves. sen. 26; S. C. Attorney-General v. Sutton, 1 P. W. 754; S. C. in Dom. Proc. 3 B. P. C. Toml. ed. 75, ante, p. 383. rent in tail general, in remainder expectant on those estates (n). 6th. That such words (whether they refer to issue or issue male), succeeding a devise to the eldest son in tail, are not referable to such son exclusively, but create in the parent an implied estate tail (o), in remainder expectant on the estate tail of the son (p); and which rule also, it seems, applies where the children take estates tail (9). 7th. That the circumstance of the preceding devise to children, &c. being subject to a contingency, is rather unfavourable to the construction, which reads words importing a failure of issue to refer to a failure of the objects of such preceding devise (r). This statement of the result of the cases may somewhat assist in the consideration of the subject, though cases are incessantly occurring which present new circumstances, and give rise to nice questions on the application of the rules furnished by the preceding authorities, even admitting those rules to be free from doubt. The reader is recommended, before he unreservedly accedes to the foregoing propositions, to consult the cases themselves, in order that he may see how far the construction may have been aided by the circumstances of the particular case. 4. It may be useful, in this place, to advert to the doctrine of general and particular intention (s), or, to speak (n) Allanson v. Clitherow, 1 Ves. sen. 24, ante. ante, 392. (r) Doe v. Lucraft, 1 Moore & (0) Stanley v. Lennard, 1 Ed. 87, Scott, 573; Franks v. Price, 6 ante, p. 384. (p) Doe d. Bean v. Halley, 8 Durn. & E. 5, ante, p. 385. (q) Doe v. Gallini, 5 Barn. & Adol. 621; 3 Ad. & Ell. 340; Scott, 710; 5 Bing. N. C. 37; 3 (s) See a masterly and extended CHAP. XL. Doctrine of general and particular in tention. CHAP. XL. more explicitly, that supposed rule of construction by which the particular intent expressed in a will is sacrificed to the general and paramount intention that the estate shall not go over to the next devisee until the issue of the preceding devisee shall have become extinct, and which has been considered to authorize the giving to such prior devisee an estate tail. The doctrine occupies so conspicuous a place in the will-cases of one period, that it must not be dismissed without a few remarks. The phrase, "general intention," in the above sense, was first adopted in the case of Robinson v. Robinson (s), where, we have seen, the Court of King's Bench held the devisee to take an estate tail male; and their reason for this construction was expressed to be, not that "son" was here a word of limitation, (which has been shewn to be, and which Sir Dudley Ryder (t), before whom the case was first argued, treated as the ground of the decision,) but to "effectuate the manifest general intention of the testator." Expressions of a similar nature fell from Lord Wilmot, C. J., in Roe v. Grew (u), where his Lordship is made to refer the determination, that the devisee was tenant in tail, to the "weightier" intention that the estate was not to go over until failure of his male issue, and not to the more simple and obvious ground of "issue" being a word of limitation in the devise itself, which was the reason distinctly advanced by two of the other learned Judges. The next mention of this doctrine is by Lord Kenyon, under whose auspices it seems to have first grown into importance; for in scarcely a single instance did this emi |