Chap. XXIX. Devise to A. and his heirs. Devise to A. and his lawful heirs. Devise to A., his executors and administrators. The testator may show that he meant by heirs heirs of the body. Effect of gift over in default CHAPTER XXIX. ESTATES IN FEE AND IN TAIL. I. WORDS TO PASS THE FEE. 1. WORDS of limitation were never necessary to pass the fee in a devise of lands held in ancient demesne. Winch. 1. A devise to a man and his heirs gives him the fee, though he may be a bastard, and can have, therefore, only heirs of his body. Idle v. Cook, 1 P. W. 78. A devise to A. and his lawful heirs carries a fee. Simpson v. Ashworth, 6 B. 412; Mathews v. Gardiner, 17 B. 254. So, too, a devise to a man, his executors and administrators, gives him the fee. Rose d. Vere v. Hill, 3 Burr. 1881. A devise of gavelkind land to a man and his eldest heir passes the fee. Co. Litt. 27a. 2. The testator may, however, show by explanatory expressions that he used the word heirs as equivalent to heirs of the body. Doe d. Jearrod v. Banister, 7 M. & W. 292; Jenkins v. Hughes, 8 H. L. 571; see, too, 4 Mad. 67; Biddulph v. Lees, E. B. & E. 289; 6 W. R. 592; 7 W. R. 309. Thus, a devise to the first and other sons of A. and their heirs, followed by a gift over in default of such issue or by expressions showing that the sons are to take in succession gives the first and other sons successive estates tail. Lewis d. Ormond v. Waters, 6 East, 337; Hennessey v. Bray, 33 B. 96. 3. Heirs both in a deed and will will be held equivalent to heirs of the body, if there is a limitation over in default of heirs or a limitation by way of remainder to a person who may be, or to several persons some of whom may be collateral heir or heirs to the first taker, the limitation over to a collateral heir showing that by heirs the testator meant heirs Chap. XXIX. of the body. Webb v. Hearing, Cro. Jac. 415; Doe d. Littledale v. Smeddle, 2 B. & Ald. 126; Wall v. Wright, 1 D. & Wal. 1; Harris v. Daris, 1 Coll. 416; In re Smith's Estate, 27 L. R. Ir. 121. The rule does not apply where the gift over is on failure of issue; therefore, a gift to several in fee, and if they die without issue to a collateral heir will, since the Wills Act, give a fee with an executory devise over, as it would before the Act have given an estate tail by force of the gift over being in default of issue, not because it was to a collateral heir. See Gwynne v. Berry, I. R. 9 C. L. 494; Fay v. Fay, 5 L. R. Ir. 274. 4. If there is a devise to A., which gives A. the fee, either by express limitation or by construction, followed by a gift over if he dies without heirs of the body or issue, if these words import an indefinite failure of issue, A.'s estate is cut down to an estate tail. Tracy v. Glover, cit. 3 Leon. 130; Denn v. Slater, 5 T. R. 335; Dansey v. Griffiths, 4 Mau. & S. 61; Tenny v. Agar, 12 East, 253; Romilly v. James, 6 Taunt. 263; Morgan v. Morgan, 10 Eq. 99; see Bowen v. Lewis, 9 App. C. 890. If, however, the failure of issue is not an indefinite failure of issue, there is no necessity for this construction, and the gift over will take effect as an executory devise. Right v. Day, 16 East, 67; Doe d. King v. Frost, 3 B. & Ald. 546; Parker v. Birks, 1 K. & J. 156; Ex parte Daries, 2 Sim. N. S. 114; Blinston v. Warburton, 2 K. & J. 400; McEnally v. Wetherall, 15 Ir. C. L. 502; Coltsmann v. Coltsmann, L. R. 3 H. L. 121. It appears that in a deed a limitation over upon death without such issue or without leaving issue will not cut down a previous limitation in fee to an estate tail. Idle v. Cook, 1 P. W. 70; Olivant v. Wright, 9 Ch. D. 646; see Morgan v. Morgan, 10 Eq. 99; Arthur v. Walker, (1897) 1 Ir. 68. a Effect of a gift over in default of issue upon prior devise in fee. codicil to estate in fee When a clear estate in fee is given by a will a reference to Reference in it by codicil as an entail will not cut down the estate given by the will. Van Grutten v. Foxwell, (1897) A. C. 658; see too as an entail. Crumpe v. Crumpe, (1899) 1 Ir. 359; (1900) A. C. 127. autre vie. Words of limitation appear to be unnecessary even in a Estate pur deed, to pass the absolute interest in an estate pur autre vie. Brenan v. Boyne, 16 Ir. Ch. 87. Chap. XXIX. Words of limitation not necessary to pass the fee. Effect of the Wills Act in passing the fee. Contrary intention. Devise of rents and profits carries the fee. Exception carries as 5. Before the Wills Act a devise without words of limitation passed only a life interest unless there could be found in the will sufficient evidence of intention to pass the fee. There is a long list of cases in which the question what expression of intention is sufficient for this purpose has been considered. These cases, which will be found in earlier editions of this work, are omitted here as they are now practically obsolete, since by sect. 28 of the Wills Act, a devise without words of limitation passes the fee or other the whole estate or interest, which the testator had power to dispose of by will, unless a contrary intention shall appear by the will. The fact that the will contains other devises with words of limitation, will not prevent a devise without such words from passing the fee. Wisden v. Wisden, 2 Sm. & G. 396. Nor will a power given to the devisee to appoint the property generally to her children cut a devise without words of limitation down to a life estate. Brook v. Brook, 3 Sm. & G. 280. But a devise without words of limitation, followed by a devise of the same property to another person with words of limitation, will give the first devisee a life interest only. Gravenor v. Watkins, L. R. 6 C. P. 500. 6. A devise of rents and profits or of the income of lands carried an estate for life in the lands before the Wills Act, and since the Act it carries the fee. Mannor v. Greener, 14 Eq. 456. The same is the case with a devise of rents and profits for a time that may last for ever. Bunbury v. Doran, I. R. 9 C. L. 284. But a devise of a specific annual sum out of land, though it happens to be the whole amount of the rents and profits, will not carry the land. Going v. Hanlon, I. R. 4 C. L. 144. law it was held that where property was 7. Under the old large an estate excepted out of a devise in fee, the exception carried as large an interest as the devise. Doe d. Knott v. Lawton, 4 Bing. N. C. as the pro perty out of which it is excepted. 455; 6 Sc. 303; Bennett v. Bennett, 2 Dr. & Sm. 266; see Hill v. Rattey, 2 J. & H. 634. The estate of a 8. The estate of a cestui que trust is commensurate with cestui que trust that of his trustee, and therefore, where land is devised to a is commensu trustee and his heirs in trust for a person without words of limitation, the latter takes the fee. Moore v. Cleghorn, 10 B. 423; 16 L. J. Ch. 469; 17 ib. 400; Knight v. Selby, 3 Sc. N. R. 409; 3 M. & Gr. 92; Challenger v. Shepherd, 8 T. R. 597; Smith v. Smith, 11 C. B. N. S. 121; see In re Whiston's Settlement; Lovatt v. Williamson, (1894) 1 Ch. 661; Re Bennett's Estate, (1898) 1 Ir. 184. So under a devise to trustees in fee upon trust for a life tenant with remainder in trust for a class without words of limitation, the remaindermen take the fee. Knight v. Selby, 3 Sc. N. R. 409; 3 M. & Gr. 92; Maden v. Taylor, 45 L. J. Ch. 569. The fact that there are executory gifts over does not prevent the application of the rule, so far as the gifts over do not take effect. Yarrow v. Knightly, 8 Ch. D. 736. The above rule does not apply, where the trustees take for the benefit of ulterior devisees as well. In re Pollard's Estate, 3 D. J. & S. 541; see Sherwin v. Kenny, 16 Ir. Ch. 138; Blackhall v. Gibson, 2 L. R. Ir. 49. Chap. XXIX. rate with that of the trustee. II. WORDS TO PASS AN ESTATE TAIL. Copyholds not being within the statute de donis are entail- Copyholds. able only by custom. In the absence of custom a devise of copyholds in words which would create an estate tail in freeholds will give a fee simple conditional on the birth of issue. Doe d. Blesard v. Simpson, 3 M. & G. 929; Hardcastle v. Dennison, 10 C. B. N. S. 606. A. The ordinary mode of limiting an estate tail is by the What words words "heirs of the body" or "issue." And a devise to A. and his heirs male, or to A. and his heirs lawfully begotten, is an estate tail. Baker v. Wall, 1 Ld. Raym. 185; Tufnell v. Borrell, 20 Eq. 194; Nanfan v. Legh, 7 Taunt. 85; Good v. Good, 7 E. & B. 295; see Crumpe v. Crumpe, (1900) A. C. 127. create an estate tail. words of In the case of a deed such words pass a fee. Co. Litt. sec. 31. Effect of Words of limitation superadded to the words heirs of the superadded body will not cut down the estate tail of the ancestor. Denn limitation and d. Gearing v. Shenton, Cowp. 410. T.W. B B distribution. Chap. XXXX. To create an estate tail the inheritance must be limited to the heirs of the body of the ancestor. Distinction between heirs the wife and heirs on the body of the wife begotten. Nor will such words as "the elder son of the ancestor to be preferred to the second or younger son," as they merely indicate the notion the testator incorrectly entertained of the descent of an estate tail. Fetherston v. Fetherston, 3 Cl. & F. 67. And probably a devise to A. and the heirs of his body as tenants in common would give A. an estate tail, notwithstanding Doe d. Strong v. Goff, 11 East, 668. See 2 Bl. 55, 58; 3 J. & Lat. 54; (1897) A. C. 674. But the heirs, where the word is to be used as a word of limitation, must be the heirs of the ancestor. Therefore a devise to the husband for life, with remainder to the heirs of the body of the husband and wife, will not give an estate tail, because no person can be supposed to include in himself the heirs of himself and somebody else. Fearne, C. R. 38; see, too, Allgood v. Withers, 2 Burr. 1107. But a devise to the husband and wife, with remainder to the heirs of the body of the husband and wife, gives them a joint estate tail. Fearne, C. R. 38. A devise to husband and wife for life, with remainder to of the body of the heirs on the body of the wife by the husband to be begotten, vests in both an estate tail; but if the remainder be limited to the heirs of the body of the wife by the husband to be begotten, the wife alone has an estate tail, the word heirs in the latter case being considered as applied to the wife only. Alpass v. Watkins, 8 T. R. 516; Denn v. Gillott, 2 T. R. 431; Frogmorton d. Robinson v. Wharrey, 2 W. Bl. 728. Similarly, a devise to husband and wife for life, remainder to the heirs of the husband on the body of the wife begotten, gives the husband an estate in special tail. Roe d. Aistrop v. Aistrop, 2 W. Bl. 1228. Effect of limitation to the he'rs of the boy of several ancestors who may intermarry. It follows that a devise to the wife for life, remainder to the heirs to be begotten on the body of the wife by the husband, gives the wife no estate tail, because the heirs are not applied to her body. Gossage v. Taylor, Sty. 325. Where there is a joint limitation for life to two persons who may by possibility intermarry (even though they may be respectively married already), with remainder to the heirs of their bodies, they take an estate tail. Co. Litt. 25b, sec. 25. |