I Williams v.
Williams, 12
East, 109.

2 Chambers v. Taylor, 2 My. & Cr. 376.

Estates tail are either general, or special; general where only one parent is specified from whence the issue must be derived; special where both are designated. If either of the tenants in special tail should die before issue had, then, as there can be no issue born inheritable to the entail, the survivor becomes tenant in tail after possibility of issue extinct, and is for all purposes of alienation, title, and forfeiture, reduced to the situation of tenant for life, except that he retains certain privileges, the remnants of his former inheritance, the most important of which is his right of committing waste; but even this he cannot transfer to his alienee1.

Under a limitation to heirs male, the person claiming must make out his title through males only, as when the limitation is to heirs female, it must be made through females only. Upon this species of limitation, a controversy has long existed and can scarcely yet be considered as settled2, whether the party so claiming by purchase must not only satisfy this condition, but must be also the actual heir general.

It is laid down by Lord Coke, that "when a man giveth lands to a man and the heirs females of his body, and dieth, having issue, a son and a daughter, the daughter shall inherit; for the will of the donor (the statute working with it) shall be observed. But in case of a purchase it is otherwise: for if A. have issue, a son and a daughter, and a lease for life be made, the remainder to the heirs female of the body of A.-A. dieth, the heir female can take nothing, because she is not heir; for she must be both heir and heir female, which she is not, because the brother is heir, and therefore the will of the giver cannot be observed, because here is no gift, and therefore the statute cannot work 3 Co. Litt. 24. b. thereupon3." All the older cases on the subject are examined, and the doctrine here laid down vindicated at great length by *Co. Litt. 24. b. Mr. Hargrave, in a note to the First Institute1. In a subsequent page, however5, adverting to this note he observes, "Since the writing of that note a case has been published, in which the Court of King's Bench, after three arguments, decided Willes v. Pal- against applying the rule to a will6. In another case, also, which was three times argued, the Court of Exchequer, as I understood, refused to apply the rule to a marriage settlement," and accordingly warns the reader against incautiously adopting his ideas. And Lord Mansfield, in Goodtitle v. Pugh7, says,—" Since New

n. 3.

164. a. n. 2.

mer, 5 Burr.

7

2615.

App. to But.

Fearne, 573.

come v. Barker, the doubts about the necessity of being very heir have been at an end."

Lord Coke's general rule, as to the necessity of being both heir and heir female, to take by purchase, appears to have remained unimpeached till the great case of Brown v. Barkham1, determined by Lord Cowper, who held a younger brother to be capable of taking as heir male under a devise to the heirs male of the body of the testator's grandfather, though the daughter of an elder brother was heir general; and, instead of founding his decree on special circumstances, which were not wanting in the case, expressly denied Lord Coke's distinction between descent and purchase. The case was afterwards brought, by bill of review, before Lord Hardwicke. In giving judgment he divided the case into two questions:-1st. Whether it is an established rule, that he who claims as heir male, by purchase, must be general heir, as well as nearest male descendant? 2nd. Whether the apparent intent of a testator to the contrary may not create an exception to the general rule? Upon the first question his lordship's words were these: "As to the first of these questions, it cannot be denied that the distinction between an heir male of the body to take by descent, who is the nearest male descendant of the party claiming through males, and to take by purchase, who must be heir as well as male descendant of the body, has been long ago established. The statute de donis established the first, and the second has been laid down by Lord Coke, in his comment upon Littleton, and is taken from his argument in Shelley's case and Dyer's report of that case, and he has been followed by some later authorities. Lord Cowper argued strongly against this rule; but as his argument is well known, and very common, I shall not now take notice of it. If this doctrine had been res integra at the time of his decree, or was so now, I am so fully convinced of the unreasonableness of it, that I would never establish it. But when a rule of law has long prevailed, it ought to be supported, though it be not strictly agreeable to natural reason; for, in many instances, it is more material that the law is settled, than how it is settled. But, as I think that this case may be determined without determining this question, I shall leave the rule unimpeached, and found my decree upon the second question 2."

Creation of estates tail by deed.]—An estate tail, being an estate of inheritance, cannot be created by deed, without words of inherit

1 Prec. Ch. 442,

461; Gilb. Rep. 116, 131; and

1 Stra. 35.

Co. Litt. 24. b. n. 4.

Makepeace v. Com. Rep. 457.

Fletcher, 2

*6 Sim. 266.

ance; and not only so, but the technical words "heirs of the body"
must be used. The limitation must be to the donee and the heirs
of his body, or the heirs of his body by a particular wife, &c. These
are technical words, and their effect cannot be obtained by any
other form of expression tantamount; and, therefore, a limitation
in a deed to the settlor's daughter, and the issue of her body, was
held not to give an estate tail to the daughter1. Even words of
inheritance do not of necessity carry an estate tail, if, upon
the con-
sideration of the whole instrument, it appear that the word “heirs”
is to be taken in some sense more limited than its proper legal im-
port, as in North v. Martin2, where, by marriage settlement, lands
were conveyed to the use of A. for life, with remainder to the use
of B., his wife, for her life, and after the decease of the survivor,
to the use of the heirs of the body of A. on the body of B. to be
begotten, and their heirs; and if more children than one, equally
to be divided among them, to take as tenants in common and not
as joint tenants, and for default of such issue, then over.
It was
held, that the husband did not take an estate in tail special, but
for life only, and that the children took by purchase, as tenants
in common in fee in remainder. "Here," observed his Honor
the Vice Chancellor, in giving judgment, "there are all the ele-
ments of a case which would call upon the Court to decide,
that the first taker took an estate tail; but, then, there are the
words, and if more children than one,' which must be taken to
be interpretative of the words heirs of the body.' If those
interpretative words had not been used, the husband, notwith-
standing the superadded words of limitation, would have taken
an estate in tail special. But no
recollect any, in which the words
held to create an estate tail where
If the interpretative words are to be allowed to operate, the effect
of the argument founded on the limitation over for default of
such issue' will be done away, for those latter words must be con-
strued to mean for default of such children.'

case has been cited, nor do I heirs of the body' have been those words have been used.

Creation of estates tail by will.]—In a will the words "heirs of the body" are not necessary to the creation of an estate tail; any words clearly manifesting the testator's intention to confine the gift to the issue of the devisee's body will have the same effect; and therefore, in a will, a devise to A. and his issue will create an estate tail. If the devise be to A. for

1

King v. Melling, 1 Vent. 225; but see Ginger v. White, Willes,

348.

2 Dansey v. Griffiths, 4

Mau. & Selw.

61.

Rep. temp. Keny. 298; 1 Bur. 38.

life, and if he die without issue, then over; here although there is no direct gift to the issue, yet A. takes an estate tail by implication, it being plainly the testator's intention that the gift over should not take effect till failure of A.'s issue, and the only way in which that intention can be effected is by construing the devise as giving an estate tail to A1. The same construction is given to a devise to A., and if he die without "leaving" issue, over2. On the same principle, if the devise be to A. in fee, but if he die without an heir, then in fee to B., who is his second brother, and would be A.'s heir if he were to die without issue, A. would take an estate tail,it being clear that, according to the meaning of the testator, A. could never die without an heir so long as he had any issue, and consequently the devise amounts to a gift to A. and his issue, and if he die without issue, then to B. in fee, which, as has been seen, gives A. an estate tail. The same reasoning applies to a gift to an alien, or a denizen, and if he die without an heir, then over; since he can have no heir but in his own issue, and can never die without an heir so long as he has any issue. To the same principle Robinson v. Robinson3 must be referred. There real estate was devised to A. for his natural life, and no longer, provided he takes the name of R.; and after his decease, "to such son of the said A. as he shall have, lawfully to be begotten, taking the name of R.; and in default of such issue, then over." The Court of King's Bench certified their opinion, that A. "must by necessary implication, to effectuate the manifest general intent of the testator, be construed to have taken an estate in tail male, he and the heirs of his body taking the name of R., notwithstanding the express estate devised to him for his life and no longer." The doctrine of "general and particular intention," alluded to in this certificate of the court, and which had its origin in Doe v. Grew1, has been frequently spoken of in terms of dis- Wilm. 272; approbation, and in a recent case, has been almost expressly repudiated. Lord Denman, in delivering the judgment of the Court, in Doe d. Gallini v. Gallini5, thus observes upon it: The doctrine, that the general intention must overrule the particular intention, has been much, and we conceive justly, & Ell. 340. objected to of late, it being, as a general proposition, incorrect and vague, and likely to lead in its application to erroneous results. In its origin, it was merely descriptive of the rule in Shelley's case; and it has since been laid down in others, where

2 Wils. 322.

55 Barn. & Ad. 621; S. C. in Ex. Ch. 3 Ad.

1 Perrin v. Bake, 1 H. C. Jurid. 283.

technical words of limitation have been used, and other words, shewing the intention of the testator, that the objects of his bounty should take in a different way from what the law allows, have been rejected; but in the latter case the more correct mode of stating the rule of construction is, that technical words, or words of known legal import, must have their legal effect, even though the testator uses inconsistent words, unless those inconsistent words are of such a nature as to make it perfectly clear, that the testator did not mean to use the technical words in their proper sense. This doctrine of general and particular intent ought to be carried no farther than this; and thus explained, it should be applied to this and all other wills. Another rule of construction is, that every part of that which the testator meant by the words he has used, should be carried into effect as far as the law will permit, but no further; and that no part should be rejected, but what the law makes it necessary to reject."

A devise to A. for his life, and after his decease to the heirs of his body, vests the inheritance in tail in A., by force of an ancient principle of law known as the rule in Shelley's case. The rule has been expressed in a variety of forms, but the following is perhaps as simple and concise as any:-"If in any instrument a freehold be limited to an ancestor for life, and the inheritance to his heirs, either mediately or immediately, the first taker takes the whole estate; if it be limited to the heirs of his body, he takes a fee tail; if to his heirs, a fee simple1." This is a mere rule of construction, the application of which admits neither of doubt nor difficulty. If, on the true construc

tion of the instrument, it appear that the freehold is limited to the ancestor for life, and the inheritance to his heirs, the rule applies of course, and vests the whole inheritance in the ancestor. It is equally applicable to deeds and wills, to estates in fee simple and in tail. To the application of the rule it is essential, that the ancestor take an estate of freehold; but it does not appear to be material whether he take it by express limitation, by resulting use, or implication of law. It is also essential to its application, that the ancestor should take his estate of freehold, either under, or as a consequence of the deed or instrument that limits the estate to his heirs, so that, if there be more than one instrument, they must form the several parts of the same transaction, as a will and a codicil, being part of the will, or a deed, or