148

great inconveniences may arise thereupon; for if such a tenant in tail hath issue divers sons, and they have issue

but as a description of the person to whom he intended to give his estate
after the death of the first devisee. As where a person devised to his son
B. I. and his heirs lawfully to be begotten; that is to say, to his first, se-
cond, third, and every son and sons lawfully to be begotten of the said
B. I. and the heirs of the body of such first, second, third, and every son
and sons successively, lawfully issuing; and in default of such issue, then
to his right heirs for ever. It was resolved, that B. I. took only an estate
for life; the word "heirs" being fully explained by the subsequent words
to be a word of purchase. Lowe v. Davies, 2 Ld. Raym. 1561. Et vid.
Doe v. Laming, 2 Burr. 1100. 1 Bl. Rep. 265. Rob. Gav. 95. Goodtitle
v. Herring, 1 East, 264. Sed vid. Poole v. Poole, 3 Bos. & P. 620. And
where words of limitation are superadded to the word "heir," in the sin-
gular number, from which it appears to have been the testator's intention
to denote by the word "heir," a new stock and root of inheritance; or
where the context shews that that word is not used in its technical sense;
as the word “issue," or "without impeachment of waste;" a limitation
to trustees to preserve contingent remainders; or a direction so to frame
the limitation, that the first taker shall not have the power of barring the
intail, in these cases, it will be construed a word of purchase: and the
first devisee will take an estate for life only. Archer's case, 1 Co. 66 b.
Clarke v. Day, Moor, 593. Blackburn v. Stables, 2 Ves. & B. 371. And
Mr. Fearne observes, that there may possibly be some cases, where the
superadded words of limitation may be admitted to control the preceding
words, heirs, heirs male, &c. though in the plural number; when such
superadded words limit an estate to such heirs, heirs male, &c. of a
different nature, from that, which the ancestor would take, if the pre-
ceding words, "heirs male," &c. in those cases, were taken as words of
limitation. As in the case put by Anderson (1 Co. 95 b. et vid. 1 Atk. 413.)
of a limitation to the use of a man for life, and after his decease to the
use of his heirs, and the heirs female of their bodies: here the first word
"heirs" would have given a fee to the ancestor, if taken as a word of limita-
tion; whereas the subsequent words, "and the heirs female of their
bodies," grafted on the word " heirs," could give only an estate tail fe-
male to the heirs. In such cases, the general effect of the first words,
"heirs of the body," &c. seems to be altered, abridged, and qualified, by
such subsequent express words of limitation annexed to them, as cannot
possibly be satisfied by considering the first words as words of limitation.
But we must take care to confine this observation to those cases, where
the ingrafted words describe an estate descendible in a different course,
and to different persons as special heirs, from what the first would carry
the estate to; viz. to males instead of females, or vice versâ ; for where
the first words give an estate tail general, and the words ingrafted thereon
are words serving to limit the fee, it seems by the general and better opi-
nion, that the annexed words of limitation are not to be attended to, as
in the cases of Goodright v. Pullyn (2 Ld. Raym. 1437.), Wright v. Pear-
son (Fearn. Cont. Rem. 187. Ambl. 358.), and King v. Burchall
(Ambl. 378.), where the ingrafted words limited the whole fee. Fearn.
Cont. Rem. 286. So the rule is not applied to devises, where the remain-
der is given to the heir of the first devisee, for life only; in which case the
first devisee will take no more than an estate for life. White v. Collins,
Com. Rep. 289. And where the word "issue" is used with words of li-
mitation superadded, it will be construed to be a word of purchase.
Loddington v. Kyme, 1 Ld. Raym. 203. Backhouse v. Wells, 10 Mod.
181. And see Doe v. Collis, 4 T. R. 294. adj. acc. in which case Lord
Kenyon observed, that, in a will, issue was either a word of purchase or of
limitation, as would best answer the intention of the devisor; though, in
the case of a deed, "issue" was universally taken as a word of purchase.
Et vid. Doe v. Burnsall, 6 T. R. 30. But the word "issue," in a will, will
not be construed to be a word of purchase, where the general intent re-
quires a different construction. See King v. Melling, 1 Vent. 225. 232.
2 Lev. 58. 2 P. Wms. 472. King v. Burchall, 4 T. R. 296. n. Roe, d.
Dobson v. Grew, Wilm. 272. 2 Wils. 322. In cases where the testator
has directed a settlement to be made, and the court of chancery has been
called upon to give directions respecting such settlement, the court has
deviated from the rule in Shelley's case, and has so far departed from that

divers daughters, and likewise if tenant in tail hath issue divers daughters, and each of them hath issue sons, none

which would be the legal operation of the words limiting the trust, if reduced to a common law conveyance as to construe the words "heirs of the body," although preceded by a limitation for life, as words of purchase, and not of limitation. But this has been done only in cases, where it appeared from some clanse or circumstance essentially repugnant to the nature of an estate tail, that the devisor could only intend to give the first devisee an estate for life; and that he used the words "heirs of the body," for the purpose of describing the persons, to whom he meant to give the estate, after the death of the first devisee. Leonard v. Eurl of Sussex, 2 Vern. 526. Stamford (Earl of) v. Hobart, 3 Bro. P. C. 31. Papillon v. l'oice, 2 P. Wms. 471. Ashton v. Ashton, 1 Collect. Jur. 402. Glenorchy v. Bosville, Forrest. 3. 1 Collect. Jur. 405. Meare v. Meure, 2 Atk. 265. And see the case of White v. Carter, Ambl. 670. adj. acc. in which Lord Camden took a distinction between the ease, where a testator has given complete directions for settling his estate, with perfect limitations, and where his directions are incomplete, and are rather minutes or instructions, and cannot be performed in the words of the will. In the former case, said his Lordship, the legal expression shall have the legal effect, though perhaps contrary to his intention; as in Garth v. Baldwin, 2 Ves. 646. In the latter case, the court will consider the intention, and direct the conveyance according to it. And where there is a settlement without articles, the words will be left to their legal operation, unless from some recital in the deed, or some other circumstance, it clearly appears that the language of the limitation was owing to mistake. Butl. Fearn. Cont. Rem. 114. Ch. Ca. 27. Doran v. Ross, 1 Ves. jun. 57. Lastly, where the estate devised to the ancestor, is merely an equitable or trust estate, and that to his heirs, or the heirs of his body, carries the legal estate, they will not incorporate into an estate of inheritance in the ancestor; as would have been the case, if both had been of one quality, that is, both legal, or both equitable. Fearn. Cont. Rem. 68. For where the limitations are both legal, the estate-tail arises by legal constraction or a rule of law; and when the limitations are both equitable (withont other ingredients in the case to control the construction), a similar rule is adopted by equity, to preserve an uniformity in construction. But when both the estates are not legal, the application of a legal construction or oneration of a rule of law, which must equally affect both, seems to be excluded, by one of the objects of that construction not being a subject of legal cognizance. So when both are not equitable estates, their combination seems to be out of the reach of an equitable construction, to which one of the estates is not adapted. Idem, 78. Et vid. Lord Say and Sele v. Jones, 3 Bro. P. C. 113. 8 Vin. Abr. 262. Shapland v. Smith, 1 Bro. C. C. 75. Silvester v. Wilson, 2 T. R. 444. Venables v. Morris, 7 T. R. $42.438.

Thus stood the law with respect to the rule in Shelley's case, when the famous case of Perrin v. Bluke arose, before the court of king's bench, in the year 1769; a case which, howmuch soever it has been regretted as having for a time unsettled the law with regard to this celebrated rule, yet has, in the end, been productive of the most important benefits to the profession, by having given rise to the admired essay, from which the preceding observations have been chiefly extracted. The case was this:One W. Williams seised in fee of a plantation in Jamaica, devised in the following words :-" Should my wife be enseint with child, at any time hereafter, and it be a female, I give and bequeath unto her the sum of 20001., &c.; and, if it be a male, I give and bequeath my estate real and personal equally to be divided between the said infant and my son Joha Williams, when the said infant shall attain the ae of twenty-one Item, It is my intent and meaning, that none of my children shoula sell or dispose of my estate for longer time than his life; and to that intent I give, devise, and bequeath all the rest and residue of my estate to my son John Williams and the said infant, for and during the term of their natural lives, the remainder to my brother-in-law J. G. and his heirs, for and during the lives of my son John Williams and the said infant, the remainder to the heirs of the body of my said sons John Williams and the said infant lawfully begotten, or to be begottea, the remainder to my daughters, &c." Perrin v. Blake, 4 Burr. 2579, 1 Bl

of the daughters of the sons, nor the sons of the daughters, shall ever inherit to either of the said estates tail:

Rep. 672. Dougl. 329. 1 Hargr. Law Tracts, 490. No other son was born; and the question was, what estate John Williams took under this will? Had this been the case of an exccutory trust, says Mr. Fearne, the court of chancery might possibly have construed it an estate for life in J. W., upon the clause expressing the testator's will, that his sons should not convey a greater interest than for their lives. But as it was the limitation of a legal and not a trust estate, the court of chancery itself (in conformity to its own established distinctions explained in the above-mentioned cases of Leonard v. Earl of Sussex, 2 Vern. 526. Glenorchy v. Bosville, Cas. Temp. Talb. 19. Bagshaw v. Spencer, 2 Atk. 581. 1 Ves. 149.), we may suppose, would have decreed it an estate-tail in J. W. The court of king's bench, however, in the case of Perrin v. Blake, treated those distinctions as too refined; and adjudged, that J. W. took only an estate for life, under the devise in question. A writ of error was brought upon this judgment in the exchequer chamber; in which the judgment was reversed by the opinion of seven judges against one; so that, upon the whole, eight judges were of opinion that John Willams took an estatetail; and four, that he took only an estate for life. An appeal was brought to the house of lords from the judgment of reversal in the exchequer chomber; but the partics at length compromised the dispute.

The subsequent cases of Hayes v. Foorde, 2 Bl. Rep. 693. Hodgson & Ur v. Ambrose, Dougl. 337. S Bro. P. C. 416. Jones v. Morgan, 1 Bro. C. C. 218, 219. Thong v. Bedford, 1 Bro. C. C. $13. and the recent decisions above cited under their respective heads, have again restored the doctrine respecting this celebrated rule to its former authority. And it is now finally settled, that “neither an intent manifested by the testator to give only an estate for life, nor the interposition of trustees to preserve contingent remainders, no mere words of condition, describing the order of succession in which the devises ate to take place, nor the introduction of powers of jointuring, or of liberty to commit waste, are of themselves sufficient to vary the technical sense of the words used. It must plainly appear, that the testator did not mean to give such an estate as would pass under the words used, unless controled by such apparent intent." Per Lord Alvanley, C. J. Poole v. Poole, 3 Bos. & P. 620 627. In order to ascer tain the testator's presumable intention, in his use of the words, heirs, &c. we cannot refer the student to a better medium than the principles laid down by Mr. Hargrave, in his masterly observations on the rule in Shelley's case. That profound writer observes, that when it is once settled, that the donor or testator has used words of inheritance according to their legal import; has applied them intentionally to comprise the whole line of heirs to the tenant for life; and has really made him the terminus or ancestor, by reference to whom the succession is to be regulated; then it will appear, that being considered according to those rules of policy from which it originated, it is perfectly immaterial whether the testator meant to avoid the rule or not; and that to apply it, and to declare the words of inheritance to be words of limitation, vesting an inheritance in the tenant for life as the ancestor and terminus to the heirs, is a mere matter of course. That on the other hand, if it be decided, that the testator or donor did not mean by the words of inheritance after the estate for life, to use such words in their full and proper sense; nor to involve the whole line of heirs to the tenant for life, and include the whole of his inheritable blood, and make him the ancestor or termines for the heirs; but intended to use the word heirs in a limited, restrictive, and untechnical sense, and to point at such individual person, as should be the heir, &c. of the tenant for life at his decease; and to give a distinct estate of free hold to such single heir, and to make his or her estate of freehold the groundwork for a succession of heirs; and constitute him or her the ancestor terminus and stock for the succession to take its course from; in every one of these cases the premises are wanting, upon which only the rule in Shelley's case interposes its authority, and that rule becomes quite extraneous matter. The previous inquiry, therefore, will be, whether, by a remainder to the heirs, either general or special, of a preceding tenant for life, it is the meaning of the instrument to include the whole of his inheritable blood, the whole line of his heirs; or to design only certain individual persons answering to the description of heirs at his death. If the former is the sense, the rule always applies; and, by

and so it is of the issues of the issues, for that (as hath been said) the issues inheritable must make their claim either only by males, or only by females, so as the females of the males, or males of the females, are wholly excluded to be inheritable to either of the said estates tail: but where the first limitation is to the heirs male, let the limitation be, for default of such issue, to the heirs of the body of the donee, and then all the issues, be they females of males, or males of females, are inheritable.

If a man give lands to a man, to have and to hold to him and the heirs male of his body, and to him and the heirs female of his body, the estate to the heirs female is in remainder, and the daughters shall not inherit any part, so long as there is issue male; for the estate to the heirs male is first limited, and shall be first served; and it is as much to say, and after to the heirs female, and males in construction of law are to be preferred.

The law termeth a reversion to be expectant upon the 183 b. particular estate, because the donor or lessor, or their heirs, Reversion, why said to be expectant on the after every determination of any particular estate, doth particular estate. expect, or look for, to enjoy the lands or tenements

again (2).

vesting the remainder in the tenant for life, forces it to operate by limi tation, even though the instrument should contradictorily and inconsistently add in express terms, that the remainder shall operate as a contingent one, and enure so as to make the heirs purchasors. If the latter sense is adopted, the rule is as invariably foreign to the case; and the remainder consequently is contingent till the death of the tenant for life, upon which event his heir takes it by purchase. 1 Hargr. Law Tracts, 575.577. This idea of the rule, which will be ever admired for its simplicity and clearness, has been confirmed by Lord Thurlow, in his determination in the case of Jones v. Morgan, i Bro. C. C. 220, and by Mr. Fearne, in his claborate Essay on Contingent Remainders.-[ Ed.]

(Q) Reversions are vested interests; for a person entitled to an estate in reversion, has an immediate fixed right of future enjoyment, that is, an estate vested in presenti, though it is only to take effect in possession and profit in future; and which may be aliened and charged much in the same manner as an estate in possession, 2 Bl. Com. 175. And the law is as careful of the rights of the reversioner, as of those of the tenant in possession; and will, therefore, allow an action to be brought by the reversioner, as well as by the tenant in possession, for an injury done to the inheritance. Jesser v. Gifford, 4 Burr. 2141. 2 Cru. Dig. 458. And in order to assist such persons as have any estate in remainder, reversion, or expectancy, after the death of others, against fraudulent concealment of their death, it is enacted by statute 6 Ann. c. 18, that all persons on whose lives any lands or tenements are holden, shall (upon application to the court of chancery and order made thereupon) once in every year, if required, be produced to the court, or its commissioners; or upon neglect or refusal, they shall be taken to be actually dead, and the person enti tled to such expectant estate may enter upon and hold the lands and tenements till the party shall appear to be living. 2 Bl. Com. 177.-[Ed.}

143 a.

Incidents to a rever

sion.

(Ante, 25 a.)

And it is to be understood, that in the case of a gift in tail, lease for life or years, fealty is an incident inseparable to the reversion, so as the donor or lessor cannot grant the reversion over, and save to himself the fealty, or such like service.

But the rent he may except; because the rent, although it be incident to the reversion, yet it is not inseparably inci dent. If a man maketh a gift in tail without any reservation, the donee shall hold of the donor by the same ser(o) Litt. fol. 4. Old vices that he held over. (0) But otherwise it is of an estate Tenures 5. 38 E. 3. 7. 33 H. 6. 7. for life or years; for there, if he reserveth nothing, he shall have fealty only, which is an incident inseparable to the reversion, as hath been said (R).

Reversions after estates for

(R) Ant. 143 a. n. (E), vol. 1. p. 445. years are present assets; and the heir cannot plead a term of years raised by his ancestor in delay of execution, but should confess assets. Smith v. Angell, 1 Salk. 354. 2 Ld. Raym. 783. 7 Mod. 40. Osbaston v. Stanhope, 2 Mod. 50. Villers v. Handley, 2 Wils. 49. A reversion after an estate for life is quasi assets, and ought to be pleaded specially by the heir; and, in such case, the plaintiff may take judgment of it, quando acciderit. Carth. 129. Dyer, 373 b. Rook v. Clealand, 1 Ld. Raym. 53. Lutw. 503. And though it is laid down as a general rule, that a reversion after an estate tail is not assets, because it is in the power of the tenant in tail to bar it at his pleasure, 1 Rol. Abr. 269. (A) pl. 2. Mildmay's case, 6 Co. 42. Brediman's case, Ibid. 58; yet when a reversion of this kind vests in possession, it then becomes assets. Kellow v. Rowden, 3 Mod. 253. And, in such case, it will be assets for payment of debts, though it should be devised away; for such a devise is, by stat. 3 W. & M. c. 14, fraudulent and void against creditors. Kinaston v. Clarke, 2 Atk. 204.

It seems, however, that, notwithstanding the case of Smith v. Parker, Bl. Rep. 1230, to the contrary, a reversion is not assets for payment of the specialty debts of any person, but the ancestor from whom the lands immediately descend. See 2 Saund. 8 f. n. 4. 2 Cru. Dig. 462. Post, 11 b. n. (3). Doe v. Hutton, 3 Bos. & P. 643. 648. 651. But a reversion is, when it vests in possession, liable to the judgments, statutes, or recognizances, of all those who were at any time entitled to it; because these securities attach on all the estates of the debtor. Giffard v. Barber, 4 Vin. Abr. 452. S. C. cited in Cunningham v. Moody, 1 Ves. 174.; and the same principle extends to leases for years. Symonds v. Cudmore, 4 Mod. 1. Shelburne v. Biddulph, 6 Bro. P. C. 356.

It remains to be observed, that all particular estates merge in the reversion, whenever the same person becomes entitled to both; except an estate-tail. 2 Rep. 61. 8 Rep. 74. 2 Bi. Com. 177, 178. And even that estate, when the right of the issue under the intail ceases, or is defeated or suspended, may become merged, and consequently let the reversion into possession. 3 Prest. Conv. 263.-[Ed.]