Mawde; Michael de Morville gave certain lands to Roberge, and to the heirs of John Mandeville, her late husband, on her body begotten, and it was adjudged that Roberge had an estate, but for life, and the fee tail vested *in Robert (heirs of the body of his father being a good name of purchase), and that, when he died without issue, Mawde, the daughter, was tenant in tail, as heir of the body of her father, per formam doni, and the formedon which she brought supposed;" then he gives the form in Latin, the substance of which is, that she claimed as heir of the body of her father. "And yet, in truth, the land did not descend unto her from Robert, but because she could have no other writ, it was adjudged to be good. In which case, it is to be observed, that albeit Robert, being heir, took an estate tail by purchase, and the daughter was no heir of his body at the time of the gift, yet she recovered. the land per formam doni by the name of heir of the body of her father, which notwithstanding her brother was, and he was capable at the time of the gift; and therefore when the gift was made she took nothing but in expectancy, when she became heir per formam doni." It is true, that the words there were, "to the heirs of the body of John de Mandeville by Roberge, his wife," whereas here they are to "the heirs (not heirs of the body) of the grandfather by Mary, his second wife." But this makes no real difference. The heirs of a person deceased, by his second wife, must mean the heirs of his body by her, otherwise the reference to the wife would be inoperative, and the limitation could not take effect. This, indeed, was not the point in dispute. What was contended was, either that Mandeville's case ought not to be followed, as resting on no sound foundation; or that, if that is not so, then there are, in this case, means of distinguishing it from Mandeville's case, owing mainly to the use of the words "for ever." Now, as to Mandeville's case, I am not aware of any authority for saying that it is not law. It is true, that Mr. Butler, in his note to Fearne (1), says, it is an anomalous case; but he adds, that "the law is settled, but the principles on which it is settled are not easily discoverable." And this is precisely the sort of case in which the importance of adhering to what has been decided is far greater than that of having a rule abstractedly the best or most consonant with other principles. It is impossible to say how often, in advising on titles, conveyancers may have acted on the authority of this ancient case, stated, without doubt, as good law by Lord Coke, commented on by Mr. Fearne, apparently with approbation, and (1) P. 83, n.

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never, so far as I know, seriously questioned. The rule, moreover, which it enunciates, is one certainly very convenient, even if, on strict legal reasoning, it may be to some extent anomalous.

The main stress of the argument, however, did not rest on the motion that Mandeville's case was to be questioned, but on there being grounds for distinguishing the present case from it, and that mainly on the authority of Roe d. Nightingale v. Quartley (1). In that case there was a devise "to Hester Read, daughter of Walter Read, and to the heirs of her body for ever; and for default of such issue, then to such child. or children, as the wife of Walter Read is now enceinte with, and to the heirs of the body or bodies of such child or children; and for default of such issue, to the right heir of Walter Read and Mary, his wife, for ever." Hester Read entered on the death of the testator. Mary Read was not enceinte, and died (without ever having any other child) before Walter, her husband. Then Walter Read, her husband, married a second wife, and afterwards died, leaving issue the defendant, Constantia *Quartley, his only child by his second wife. Then Hester died without issue, leaving the plaintiff, Mary Nightingale, her cousin and heir-at-law. Hester was the only child of Walter and Mary. The plaintiff was held entitled to recover the whole as being the heir of Hester.

The VICE-CHANCELLOR, in his judgment, in commenting on that case, says, that neither Mandeville's case, nor the doctrine. derived from it, was referred to in it. I do not think it necessary to consider whether he was or was not warranted in that assumption, for I cannot think that your Lordships ought to treat it as having overruled Mandeville's case, proceeding, as it did, on. totally different grounds. In truth, in Roe v. Quartley, both parties proceeded on the common assumption that the ultimate limitation passed the fee. The testator had already given an estate tail to the only existing child of Walter and Mary, and to another child with which he supposed Mary to be enceinte. And if the construction acted on in Mandeville's case had been adopted, the effect would have been to repeat the two estates tail already given, first to Hester and then to the child with which Mary was supposed to be enceinte. It is true, that on failure of these two estates tail, the devise would, according to the doctrine of Mandeville's case, have been effectual to carry the estate to after-born children of Walter and Mary, if there had been any. Both parties, however, treated the devise as clearly being a devise in fee. (1) 1 R. R. 326 (1 T. R. 630).

WRIGHT.

simple, and as if the only question was, whether the fee vested. VERNON in Hester, or in the child by the second marriage. Whether that was a correct view of the case does not seem to me to be necessary to be determined. The decision, if it is not reconcileable with Mandeville's case, cannot, in my opinion, be supported.

It was argued, that in this case, as in Roe v. Quartley, the ultimate limitation is strictly a limitation in fee; the words *" for ever" occurring, and those words being sufficient to show, that the previous words ought to be read as a mere designatio persona. This was the view of the case taken by Mr. Justice WILLES, and is, therefore, entitled to great attention. But I am unable to concur in it. The words "for ever would, no doubt, be sufficient, if the context required it, to create an estate in fee; but, considering how very commonly those words are used in connexion with an estate of inheritance, whether in tail or in fee, being, in fact, merely tautologous, I cannot think that they make any real difference. It is not unworthy of remark, that in the very case on which we are commenting, of Roe v. Quartley, the words "for ever" are used in connexion with an estate tail, the first gift being "to Hester Read and the heirs of her body for ever." Mr. Justice WILLES says, that if we construe the devise according to the rule in Mandeville's case, there is an intestacy as to the ultimate fee. No doubt that is so, and that affords an argument in favour of the construction which he adopts, but it is not, in my opinion, sufficient to outweigh those which press. in an opposite direction. All the learned Judges having concurred in this opinion, with the exception of Mr. Justice WILLES, I shall move, as I have already stated, that the decree of the COURT below be affirmed.

Before I quit the subject, I ought to mention, that in the course of the argument it was suggested, on the part of the respondent, that there was a portion of this judgment which ought to be varied. The VICE-CHANCELLOR, in giving judgment, directed an account of the rents only from the time when the bill was filed, and not from the preceding year, in which Atherton Watson, the preceding tenant in tail, had died. His Honour did not do that per incuriam. He considered the case very fully, and thought that, inasmuch as during that year the rents had been received by a *person as trustee, claiming under the person who devised them in fee, and as the trustee had handed them over in what would have been the due execution of his trust to the person entitled, a married woman, to her separate use, they could not be recovered back. His Honour thought

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it would not be just to give an account that would affect that trustee, and therefore limited the account to the time of the filing of the bill. Whether an account should be directed from the filing of the bill, or from an anterior time, is always a matter in a great measure of discretion. And I am not at all prepared to say that the VICE-CHANCELLOR has not come to a correct conclusion upon that point. Therefore, I shall advise your Lordships to pay no attention to that suggestion, and shall simply move, that the decree of the COURT below be affirmed. And I think, that this, being a case of very considerable doubt, the costs ought to come out of the estate.

LORD WENSLEYDALE concurred:

The question arises entirely on the construction of one clause. in the will of Mrs. Phillis Langham, giving the real estate, in default of issue, previously mentioned. The question is, whether the right heir of Sir Thomas Samwell, the father, by his wife. Mary, who was Colonel Samwell, takes under that description an estate tail or not. And that depends simply on the question of whether Mandeville's case (which has been sufficiently stated by my noble and learned friend) applies to this case or not. Now Mandeville's case must undoubtedly be considered as a binding authority. It has been objected to, and the principles on which it rests have been described as somewhat anomalous. But I do not believe that it has ever been objected to as bad law, although it is stated in the case of the appellants that it was objected to by Lord Coke as bad law (1). *But on referring to that case, it will be seen that what Lord Coke said was merely as an advocate and not as a Judge, for he was AttorneyGeneral at that time. And in all the treatises upon the subject since, Mandeville's case has been deemed good law.

Then the only question is, whether the present case can be distinguished from Mandeville's case. I confess that, during the course of this inquiry, I have felt that if this had been a discussion of this question for the first time, and I had been. called upon first to decide on the meaning of this clause in the will, I should have entertained some doubt whether it was not to be distinguished from Mandeville's case, by two circumstances; the one, that it is a bequest "for ever," which imports in fee; and secondly, that if you construe this to be an estate tail, there will be an intestacy as to the remainders over, which is a circumstance that you ought to avoid in construing wills. My noble and learned friend has mentioned that Mr. Justice WILLES, in the opinion which he gave, pointed.

(1) 2 Leon. 25.

out that circumstance; but I think he is mistaken there; for I do not think that any one of the Judges who have given opinions upon this case, has pointed out that to construe this to be an estate tail, would create an intestacy. But the creating an intestacy is only an argument against that construction, nothing more. However, I cannot say that my notions on that subject have amounted to much more than a doubt in the course of this inquiry, and I hold that you ought not to reverse a careful and elaborate decision of the COURT below, unless you are satisfied that it is wrong. A mere doubt in your own mind as to the propriety of the construction, ought not to entitle you to reverse the judgment. And when I consider that that judgment has been recognised as being perfectly sound, by four Judges out of the five who have given their opinion, I certainly cannot *consider that my doubts ought to weigh. In fact I may say they are removed. I cannot distinguish this case from Mandeville's case. I think the words "for ever may not improperly be applied to an estate tail, though with respect to an estate tail they are not perfectly correct. The circumstance of this construction having the effect of creating an intestacy, does not appear to me sufficient to weigh against the authority of Mandeville's case. And with the decision of the COURT below, and the opinion of four learned Judges in support of that decision, I cannot do otherwise than advise your Lordships to affirm this judgment.

I quite agree that inasmuch as the testator himself has created the difficulty by not expressing the limitation with sufficient clearness, his estate ought to pay the costs.

Mr. Glasse:

I understand your Lordships to say that the costs ought to come out of the estate. There is no estate; and directing them to come out of the estate would, in fact, be to direct the respondents to pay the costs of the present appeal; and I apprehend that is not what your Lordships mean. This is not an administration suit, but a suit to put a construction on the will; the legal estate is outstanding.

Sir R. Bethell:

It is a bill brought to put a construction upon this will. It relates to real estate. A receiver was appointed in the cause, and rents have accumulated to the amount of 6,000l., now in Court. There is, therefore, an ample fund to be dealt with, which is the subject of controversy in the suit. LORD CRAN WORTH:

The better way will be to say nothing about the costs. It

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