“heir at law” as synonymous with eldest son.

And this con

struction has prevailed in some other cases where the indication of intention was less decisive and unequivocal.

As, in Darbison d. Long v. Beaumont, (a) where the testator, after creating various limitations for life and [ 15 ] in tail, devised his estates to the heirs male of the body of his aunt E. L. lawfully begotten, remainder to the testator's own right heirs; he also gave £100 to his said aunt E. L., and £500 to her children; he likewise gave to A (who was his heir at law) an annuity out of the said hereditaments, and a legacy to her children. The prior limitations determined in the lifetime of E. L., upon which the question arose, whether A., the eldest son of E. L., could take; to whose claim it was objected, that, his mother being living, he was not heir. But it was adjudged, in the Exchequer, which judgment (after being reversed in the Exchequer Chamber) was ultimately affirmed in the House of Lords, that A was entitled under this devise; it being evident from the whole will, that the eldest son was the person designed to take by the appellation of the heir male of the body of the testator's aunt E. L.; and that although the word "heir," in the strictest sense, signified one who had succeeded to a dead ancestor, yet, in a more general sense, it signified an heir apparent, which supposed the ancestor to be living; that the testator took notice that the sons of E. L. were living at that time, by giving them legacies; and also that E. L. was likewise living, by giving her a legacy; (b) and, therefore, he could not intend that the first son should take strictly as heir, that being impossible in the lifetime of the ancestor; but as heir apparent, he might and was clearly intended to take.

So, in Goodright d. Brooking v. White, (c) where the testator, after devising certain life annuities to three daughters, and an annuity to M. another daughter, during the [ 16 ] joint lives of herself and the testator's only son R., gave the estate (subject to the annuities) to his daughter M. for two years, with remainder to R., his son, for ninety-nine years, if he should so long live; and subject thereto, he devised the same to R.'s heirs male, and to the heirs of his daughter M., jointly and equally, to hold to the heirs male of R. lawfully begotten, and to the heirs of M. jointly and equally, and their heirs and assigns forever; and for want of heirs male lawfully begotten of the body of R., at the time of his decease, the testator devised the same, charged as aforesaid, to the heirs and assigns of M. lawfully begotten of her body, to hold to the

(a) 1 P. W. 229; 3 Br. Parl. Ca. (Toml. ed.) 60; et vid. James v. Richardson, ante, 14.

(b) But might not the testator have calculated on E. L. surviving him, and afterwards dying before the remainder to her heir took effect in possession?

(c) 2 Blackst. 1010.

heirs and assigns of M. forever. R., the son, had 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.1 Blackstone 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.

In the case of Doe d. Winter v. Perratt, (a) a testa[ 17 ] tor devised lands to his kinsman, John Chilcott, in terms conferring an estate tail male; 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." Mr. Justice Holroyd and Mr. Justice Littledale held, that the son of the daughter who first died, leaving male issue, was entitled: dissentiente Mr. Justice Bayley, 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; the learned Judge thinking that "heir" here meant heir apparent of the eldest daughter. The case was brought by writ of error into the House of Lords; and the House submitted to the Judges the question (among

(a) 5 Barn. & Cress. 48; S. C. in Dom. Proc. 3 M. & Scott, 586.

1 Jourdan v. Green, Dev. Eq. 270.

[18]

others) whether the expression "first male heir" was used by the testator to denote a person of whom an ancestor might be living. The opinion of four out of five Judges (namely, Justices Taunton, Bosanquet, Bayley, and C. J. Tindal) 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 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. Mr. Justice Taunton, Mr. Justice Bosanquet, and Lord C. J. Tindal, however, did not (like Mr. Justice Bayley) construe the words "male heir" as meaning heir apparent, but as importing male descendant; and, therefore, as applying to the grandson (being the only male descendant) of the eldest daughter; the effect of which was to read the words in question as a devise to "the male descendant of the eldest branch of my uncle Richard Chilcott's family;" and this construction seems to have been adopted by the House of Lords. If the eldest daughter had had more than one grandson, preference would, according to the principle of the decision, no doubt, have been given to the eldest of such grandsons, if they were the offspring of the same parent, or the son of the eldest daughter, if not.

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 give Blackacre to my heir male, which is my brother A B; * this is, it seems, a good devise to A B, although he is not heir general. (a)

[ 19 ]

Again, (b) 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.

So, in the case cited by Lord Hale, in Pybus v. Mitford, (c) where a man having three daughters and a nephew, gave his

(a) Hob. 33.

VOL. II.

(b) Hob. 34.

2

(c) 1 Vent. 381.

daughters £2000, 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 £2000 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.

Again, in the case of Baker v. Wall, (a) where the testator having issue two sons, devised to A, his eldest son, his farm, called Dumsey, to him and his heirs male for ever; adding, "if a female, my next heirs shall allow and pay to her £200 in money, or £12 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 for ever." A died, leaving issue a daughter [ 20 ] only; and the question now was, whether, in event, C, the younger 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 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 female 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.

But in the case of Goodtitle d. Bailey v. Pugh, (b) 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

(a) 1 Lord Raym. 185; S. C. Pre. Ch. 447, 464, 465, 468; 1 Eq. Ca. Abr. 12, 214. 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.

(b) 3 B. P. Cas. (Toml. ed.) 454. See also Butl. Fea. 573, 575; S. C. cit. 2 Mer. 348.

three daughters. The son died without issue, having enjoyed the lands for his life. The daughters con- [ 21 ] tended, 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 had said, "Those who would be my right heirs, if my son 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.

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 exclusion 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.

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.

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; (a) supposing, of course, that there is nothing in the context to oppose the construction.

*

[ 22 ]

With respect to the personalty, too, it is often doubtful whether the testator employs the term "heir" in its strict and proper acceptation, or in a more lax sense, as descriptive of the person or persons appointed by law to succeed to property of this description. Where the gift to the heirs is by way of substitution, the latter construction has sometimes prevailed; an example of which occurs in the case of Vaux v. Henderson, (b) where a testator bequeathed to A $200, "and failing him by decease before me, to his heirs ;" and the legacy was held to belong to the next of kin of A living at the death of the testa(a) Co. Litt. 10, a, 22, b; Robinson's Gavelkind, 117, 118. (b) 1 Jacob & Walk. 388, n.