to the heirs and assigns of M. forever. R. the son, had, [*918] at the date of the will, a son and two daughters; and M., the testator's daughter, then had one son. R. died in the lifetime of M. It was contended, that the devise to the heir of M. was void, his mother being alive at the expiration of the preceding estates; but the Court held, that her son was entitled. De Grey, C. J., said, that the testator took notice that M. was living, by leaving her a term and a subsequent annuity, and meant a present interest should vest in her heir, that was, her heir apparent during her life. Blackstone, J., thought that, as the testator had varied the tenure of M.'s annuity from that of the other sisters, theirs depending on their own single lives, and hers on the joint lives of herself and her brother R., it was plain the testator had in his contemplation that she might survive R., as in fact, she did; and therefore, the word "heir " must be construed as equivalent to issue, in order to make him take in her lifetime, agreeably to the intent of the testator.

"To first male heir of the branch of R. C.'s family."

In Doe d. Winter v. Perratt (d), a testator devised lands to his kinsman, John Chilcott, or his male heir, and, in default of male heir by him, directed the lands to fall to the first male heir of the branch of his (the testator's) uncle, Richard Chilcott's family, paying unto such of the daughters of the said R. Chilcott, as should be then living, the sum of 100%. each, at the time of taking possession of the said estates. John Chilcott died without issue. R. Chilcott was dead when the testator made his will, having left five daughters, several of whom (including the eldest) died before the remainder fell into possession. The eldest daughter left several daughters, one of whom had a son, who was the only male descendant of the eldest daughter. Each of the other deceased daughters left sons, and each of the living daughters had also sons, some of whom were born before the grandson of the eldest daughter. The question between these several stocks was which of them was entitled under the denomination of "first male heir." Holroyd and Littledale, JJ., held that the son of the daughter who first died leaving male issue was entitled; dissentiente Bayley, J., who was of opinion that the son of the eldest of the daughters, who had a son, was entitled, whether such daughter were living or dead, and without regard to the relative ages of the sons of the several daughters; thinking that "heir" here meant heir apparent of the eldest daughThe case was brought by writ of error into the * House of Lords; and the House submitted to the Judges the question (among others), whether the expression "first male heir" was used by the testator to denote a person of whom an ancestor might be living. Four out of the ten Judges (namely, Littledale, Maule,

"First male heir" held to mean male descendant.

[*919] ter.

(d) 5 B. & Cr. 48; in D. P. 3 M. & Sc. 586, 10 Bing. 198, 9 Cl. & Fin. 606, 6 M. & Gr. 314.

and Coltman, JJ., and Parke, B.) answered this question in the negative, thereby supporting the judgment of K. B., and with them agreed Lord Brougham. The opinion of the other six Judges (Taunton, Bosanquet, Bayley, Patteson, Williams, JJ., and Tindal, C. J.), with whom Lord Cottenham concurred, was in the affirmative; and this opinion was founded on the circumstances of the testator's knowledge of the state of his uncle Richard's family; that his uncle was then dead; that he had left no heir male, but only daughters; that legacies were given to such of the daughters as should be living when the remainder vested, to be paid by the person who was to take under the description of "first male heir," not "of my daughters," or "of daughters," or of any one daughter specifically, but "of the branch of my uncle Richard Chilcott's family;" all of which it was considered amounted to a demonstration that the testator used the word "heir" to denote a person of whom the ancestor might be living. It ultimately appeared that the precise point was not before the House, and it was therefore not decided.

On the other hand, in Collingwood v. Pace (e), where lands were devised to the heir of A. and to the heirs of the said heir, and an annuity was bequeathed to A. for the bringing up A.'s eldest Heir" held son; it was held that, A. being alive at the testator's not to mean death, the devise to his heir failed; for, though it was heir apparent. strongly argued for the eldest son of A. that by giving A. an annuity the testator showed that he expected him to survive, and therefore, the devise being immediate, could not have used the word "heir" in its technical sense; yet (it was answered) there was nothing to show, in case A.'s eldest son died in the testator's lifetime, whether a second son was to take; and that, if the eldest was intended, it might have been so expressed, as it was in another part of the will.

And in Doe d. Knight v. Chaffey (f), a devise to husband and wife for their lives, remainder to their son A. in fee; but in case * he should die without issue in their lifetime, then to "their [*920] next heir" in fee, was held to give the estate to the true heir

of the husband and wife, and not to the child born next after A.

"Heir" ex

plained by context to de

note a person

IV. The word "Heir" explained by the Context of the Will to denote a Person who is not the Heir-general. Where a testator shows by the context of his will that he intends by the term "heir" to denote an individual who is not heir-general, such intention, of course, must prevail, and the devise will take effect in favor of the person described, Thus, if a testator says, "I make A. B. my sole heir," or, "I (e) Bridg, by Ban. 410. Assuming "heir" to have its proper sense, this devise would at the present day be construed as an executory devise to the person who should be the heir of A. at his death, and the testator's beir would be entitled during A.'s life, the old distinction between gifts per verba de præsenti and per verba de futuro being now exploded, Fea. C. R. 535; Harris . Barnes, 4 Burr. 2157.

16 M. & Wel. 656.

VOL. II.

66

not heir-
general.

"this is,

give Blackacre to my heir male, which is my brother, A. B.; it seems, a good devise to A. B., although he is not heir-general (g) 1 Again (h), it is laid down, that "if a man, having a house or land in borough English, buy lands lying within it, and then, by his will, give his new-purchased lands to his heir of his house and land in borough English, for the more commodious use of it, such heir in borough English will take the land by the devise as hæres factus, not natus or legitimus; for the intent is certain, and not conjectural; and it is said (i), that if a man having lands at common law and other lands in borough English or gavelkind, devise his common-law lands to his heir in borough English, or heirs in gavelkind, such customary heir or heirs shall take them by the devise, though not heir at common law.

So, in the case cited by Lord Hale in Pybus v. Mitford (k), where a man, having three daughters and a nephew, gave his daughters 2,000l., and gave the land to his nephew by the name of his heir male, provided that, if his daughters "troubled the heir," the devise of the 2,000l. should be void; it was adjudged that the devise to the nephew was good, although he was not. heir-general (because the devisor expressly took notice that his three daughters were his heirs); and that the limitation to the brother's son by the name of heir male was a good name of purchase.

Term "heir" applied by a

testator to a devisee.

*

"Next heir"

held to denote a person not heir-general.

Again, in Baker v. Wall (7), where the testator, having issue [*921] two sons, devised to A., his eldest son, his farm called Dumsey, to him and his heirs male forever; adding, "if a female, my next heir shall allow and pay to her 2007. in money, or 12l. a-year out of the rents and profits of Dumsey, and shall have all the rest to himself, I mean my next heir, to him and his heirs male forever." A. died leaving issue a daughter only; and the question now was, whether in event C., the youngest son of the testator, was entitled. And the Court held that he was first, because it was manifest that the devise to A. was an estate tail male; secondly, that it was apparent that the devisor had a design, that if A. had a daughter, she should not have the lands; for the words, "if a female, then my next heir," &c., must be

Hob. 33. See also Dormer v. Phillips, 3 Drew. 39; Parker v. Nickson, 1 D. J. & S. 177. Hob. 34. But a devise of customary lands to the heir simpliciter gives them to the common-law heir, Co. Lit. 10 a; post, p. 922.

(i) Pre. Ch. 464, per Lord Cowper.

(k) 1 Vent. 381.

() 1 Ld. Raym. 185, Pre. Ch. 468, 1 Eq. Ca. Abr. 214, pl. 12. See also Rose v. Rose, 17 Ves. 347, where the phrase "my heir under this will" was held, in reference to certain pecuniary legacies, to point to the testator's residuary legatee. See Thomason v. Moses, 5 Beav. 77, ante Vol. I. p. 345.

1 See the following cases for illustration: Bradlee v. Andrews, 137 Mass. 50; Minot v. Harris, 132 Mass. 528; and cases cited at the

end of this chapter, of wife or husband taking as "heir."

intended as if he had said, "But if my son A. shall have only issue a female, then that person who would be my next heir, if such issue feinale of A. was out of the way, shall have the land; and, to make his intent more manifest, the testator gave a rent to such female out of the lands; for she could not have both the land and a rent issuing out of it. By the words, "to him," it was apparent that he intended the male heir; so that it was the same thing as if he had said, "I mean my next heir male." And as to the objection, that C. was male, but not heir (for J. D., a female, was right heir to the devisor), the Court said, that if the party take notice that he has a right heir, and specially exclude him, and then devise to another by the name of heir, this shall be a special heir to take.

"To the right heirs of me, my son ex

But in Goodtitle d. Bailey v. Pugh (m), where the devise was to the eldest son of the testator's only son, begotten or to be begotten, for his life; and the testator added, "and so on, in the same manner, to all the sons my son may have; if but one son, then all the real estate to him for his life, and for want of heirs in him, to the right heirs of me (the testator) forever, my son excepted, it being my will he shall have no part of my estates, either real or personal." The testator left his son and three daughters. The son died without issue, having enjoyed the lands for his life. The daughters contended, that they were the personæ designatæ under the devise to the testator's own right heirs, his son excepted; for that the son, who was the proper heir, was plainly and manifestly excluded by the express words. And of this opinion. were Lord Mansfield and the rest of the Court of King's Bench, who held, that the words were to be interpreted as if the testator

cepted."

had said, "Those who would be my right heirs, if my son [*922] were dead." This judgment, however, was reversed in the House of Lords, with the concurrence of the Judges present, who were unanimously of opinion that no person took any estate under the will by way of devise or purchase.

Goodtitle v.
Pugh.

This is an extraordinary decision; and high as is the authority of the Court by which it was ultimately decided, its soundness may be questioned, as the will contains not merely words of exRemarks upon clusion in reference to the son (which, it is admitted, would not alone amount to a devise), but a positive and express disposition in favor of the person who would be next in the line of descent, if the son were out of the way. In this case, we trace but very faintly the anxiety, generally imputed to judicial expositors of wills, ut res magis valeat quam pereat.

But if a person truly answers the special description contained in the will, the fact that he is also heir-general affords no pretext for

(m) 3 B. P. C. Toml. 454, Butl. Fea. 573, cit. 2 Mer. 348.

Capacity of special heir

not affected by his being general heir also.

his exclusion; and therefore where a testator devised the ultimate interest in his property to his right heirs on the part of his mother, his co-heirs at law, who were also his heirs ex parte maternâ, were held entitled under the devise (n). It scarcely requires notice that wherever the heir-general is a descendant, or the brother or sister, or descendant of a brother or sister of the testator, he will be heir ex parte maternâ as well as ex parte paternâ.

V. Construction of the Word "Heir" varied by the Nature of the Property. It is next to be considered how far the construction of the word "heir" is dependent upon, or liable to be varied by, the nature of the property to which it is applied.

"Heir" in reference to gavelkind or borough Eng

lish lands;

If the subject of disposition be real estate of the tenure of gavelkind, or borough English, or copyhold lands held of a manor in which a course of descent different from that of the common law prevails, it becomes a question, whether, under a disposition to the testator's heir as a purchaser, the intended object of gift is the heir-general at common law, or his heir quoad the particular property which is the subject of the devise; and the authorities, at a very early period, established the claim of the common-law heir (o); supposing, of course, that there is nothing in the context to oppose the construction. [*923] * If a testator seised of lands by descent from his mother devises them to his heir, and die leaving different persons his heir ex parte maternâ and his heir ex parte paternâ (who both claim

as between

pars paterna

and pars materna :

at common law), the question, which is entitled, will depend on whether the devise is sufficient according to the principles of the old law to break the descent. Thus, in Davis v. Kirk (p), a testator devised all his real estate (part of which had descended to him ex parte maternâ) to a trustee, his heirs and assigns, upon trust to sell part, and to pay the income of the residue to the testator's widow for life, and after her death "upon trust to convey the said residue unto such person as should answer the description of the testator's heir-at-law." It was held by Sir W. P. Wood, V.-C., that the descent was broken by the devise, and that the

(n) Foster v. Sierra, 4 Ves. 766; Rawlinson v. Wass, 9 Hare, 673. See Gundry v. Pinniger, 14 Beav. 94, 1 D. M. & G. 502.

(o) Co. Lit. 10 (a devise to heir of stranger); Rob. Gavelk. 117, 118; Garland v. Beverley, 9 Ch. D. 213; Thorp v. Owen, 2 Sm. & Gif. 90 (devise in 1841 to heir male of testator); per Romilly, M. R., Polley v. Polley, 31 Beav. 363 (gift to heir of stranger of money to arise by sale of borough English lands). In Sladen v. Sladen, 2 J. & H. 369, the claim of the common-law heir was fortified by the circumstance that leaseholds were mixed with the gavelkind land in the same set of limitations.

(p) 2 K. & J. 391. The will was dated in 1845, and was therefore subject to stat. 3 & 4 Will. 4. c. 106, s. 3-a circumstance noted by the V.-C. on a subsequent occasion, 1 J. & H. 674. But that statute appears to give no help in determining who is the person to take, but only, if the heir ex parte maternâ is found to be the person intended, to direct how he takes it.