It is clear, that where a testator devises real estate to trustees upon trust, and then directs that, in certain events, they shall convey the estate in a prescribed manner, the fact that the will contains such a direction does not constitute a ground for regarding the whole series of trusts as executory, and for applying to the former that liberality of construction which is peculiar to trusts of this nature. (a) III. It may be useful, as supplementary to the preceding discussion of the rule in Shelley's case, to state, for the use of the student, the practical bearings of the alternative whether the heir takes by descent or by purchase; which will be best shown by suggesting a case of each kind. Suppose, then, a devise to Å for life, remainder to the heirs of his body; and suppose another devise to the use of trustees for the life of B, in trust for B, remainder to the use of the heirs of his body. In the former case, the ancestor being tenant in tail, the heirs of his [267] body can body can claim only derivatively through him by descent per formam doni, and, therefore, if A die in the lifetime of the testator, the heir (unless the will were made or republished subsequently to 1837) takes nothing, the devise to his ancestor having lapsed. (b) On the other hand, in the latter supposed case, if B should die in the testator's lifetime, it would not affect his heir, who claims, not derivatively through his ancestor, but originally in his own right by purchase; and who would, therefore, be entitled under the devise, notwithstanding his ancestor's death in the lifetime of the testator. The estate tail would go by a sort of quasi descent (c) through all the heirs of the body of the ancestor, first exhausting the inheritable issue of the first taker, (and which issue would claim by descent,) and then devolving upon the collateral lines; the head of each stock or line of issue claiming as heir of the body of the ancestor by purchase, but taking in the same manner as such heir would have done under an estate tail vested in the ancestor. Another difference to be observed is, that where the heir takes by descent, the property, if in possession, devolves upon him, subject to the dower of the widow of his ancestor, if he were married at his death, (provided, in regard to the dower of a observations of the other writers referred to. Lord Eldon, in Jervoise v. Duke of Northumberland, intimated his assent to the conclusions of Mr. Fearne on the subject of executory trusts, which is one of the many tributes of respect paid to the labors of this very eminent writer, by those whose profound knowledge of the laws of real property enabled them to appreciate those labors. (a) Franks v. Price, 3 Beav. 182. (b) Brett v. Rigdon, Plow. 340; Hartop's case, Cro. El. 242; Hutton v. Simpson, 2 Vern. 722; Hodgson v. Ambrose, Dougl. 337; 3 B. P. C. (Toml. ed.) 416; Wynn v. Wynn, 1d. 95; Warner v. White, Id. 435. The abstract prefixed to the last case is singularly inaccurate. (c) Mandeville's case, Co. Litt. 26 b. See Fea. C. R. 80. widow, whose marriage was prior to or on the first of January, 1834, (a) his estate were legal, and not equitable only,) or subject to curtesy, if the ancestor were a married woman, who left a husband by whom she had had issue born [268] alive capable of inheriting, and which attaches whether the estate be legal or equitable. On the other hand, where the heir takes by purchase, of course none of these rights, which are incident to estates of inheritance, attach, the ancestor being merely tenant for life. And, lastly, if the heir of the body take by descent, his claim may be defeated by the alienation of his ancestor by means of a conveyance enrolled, now substituted for a common recovery, the right to make which is, we have seen, an inseparable incident to an estate tail. (b). On the other hand, the heir claiming by purchase is unaffected by the acts of his ancestor, except so far as those acts may have happened to destroy the contingent remainder of such heir, if not supported (as it always should be) by a preceding vested estate of freehold. The conveyance, it should be observed, of a person becoming tenant in tail by force of the rule in Shelley's case, under a limitation to the heirs of his body, not immediately expectant on his estate for life, has no effect upon the mesne estates, unless they happen to be legal remainders, contingent and unsupported. Thus, in the case of a limitation to A for life, remainder to his first and other sons in tail male, remainder to the heirs of the body of A, with remainders over; A, being tenant in tail by the operation of the rule, may make a disentailing assurance; but though such assurance will bar the remainders ulterior to the limitation to the heirs of his body, it will not affect the intervening estate of the first and other sons, unless there were no son born at the time, and no estate interposed to preserve the remainders of the sons; in which case, such remainders being contingent, would clearly be destroyed. It may be useful to illustrate the practical conse- [269] quences of a limitation of another description. Suppose a devise to A and B jointly for their lives, remainder to the heirs of their bodies; if they were not husband and wife, (or, it would seem, persons who may lawfully marry,) they would be joint tenants for life, with several inheritances in tail. An enrolled conveyance by either would acquire the fee simple in an undivided moiety, and they would thenceforward be tenants in common: by parity of reason, a similar conveyance by both would comprise the entirety. If the limitation were to them successively for life, A would be tenant for life of the entirety, with the inheritance in tail in one moiety, subject, as to the latter, to B's estate for life, and B would be tenant for life in remainder of (a) Stat. 3 & 4 Will. IV. c. 105. (b) Ante, vol. 1, p. 813. one moiety, and tenant in tail in remainder of the other moiety. A being tenant in tail in possession, might make a disentailing assurance, which would give him the fee simple in a moiety of the inheritance, but would not, as before shown, affect B's estate for life in remainder in that moiety. B, on the other hand, having no immediate estate of freehold, could not, during the life of A, and without his concurrence, acquire, by means of an enrolled conveyance, a larger estate than a base fee determinable on the failure of issue inheritable under the entail. A and B might conjointly convey the absolute fee simple in the entirety. If, under a devise to A and B jointly for their lives, with remainder to the heirs of their bodies, A and B were persons who might lawfully marry, they would be joint tenants in tail; if they were actually husband and wife, they would be tenants in tail by entireties. In the former case, each might acquire the fee simple in his or her own moiety, by making a disentailing assurance thereof; but, in the latter case, the concurrence of [270] both would be essential, on the ground of the unity of person* of husband and wife, and the deed of course must be acknowledged by the wife. In each of the suggested cases, if the estate remained unchanged at the decease of either of the two tenants in tail, it would devolve to the survivor, according to the well-known rule applicable as well to joint tenancies as tenancies by entireties. 199 CHAPTER XXXVIII. WHAT WILL CONTROL THE WORDS "HEIRS OF THE BODY. I. Effect of superadded Words of Limitation. II. Words of Modification inconsistent with the devolution of an estate tail. III. Clear words of explanation. EFFECT of context in controlling "heirs of the body." Similar limitations superadded. Superadded limitation to heirs general of heirs of the body, [p. 272.] Construction not varied by such superadded words, [p. 272.] Nor by interposition of estate to preserve contingent remainders, [p. 274.] As to heirs of the body being directed to assume testator's name. [p. 274.] Result of the cases, [p. 275.] Distinction where the words of limitation change the course of descent, [p. 276.] Effect of superadded words of modification inconsistent with an estate tail, [p. 277.] "Forever as tenants in common, and not as joint tenants," [p. 278.] "Whether sons or daughters, as tenants in common," [p. 278.] In such shares, &c., as F. should appoint, [p. 279.] Observations, [p. 279.] In such shares as W. should appoint, and if but one child, &c. [p. 280.] Judgment of reversal in Dom. Proc. [p. 280.] Lord Eldon's observations, [p. 281.] Jesson v. Wright, [p. 282.] Lord Redesdale, [p. 283.] Jesson v. Wright, [p. 284.] Lord Redesdale's statement of the principle of the decision, [p. 284.] Effect of limitation to preserve contingent remainders, [p. 285.] "As well female as male take as tenants in common," &c. [p. 285.] "Equally to be divided amongst them share and share alike," [p. 285.] Observations, [p. 286.] Cases in which expressions were held to control " heirs of the body,” [p. 286.] "As well females as males, and to their heirs," [p. 286.] Remark on Doe v. Laming, [p. 287.] Doe v. Laming, virtually overruled by Doe v. Harvey, [p. 288.] "Without any respect to seniority of age," &c. [p. 289.] Observations upon Doe v. Ironmonger, [p. 289.] "As tenants in common with devise over if the issue died under twenty-one," [p. 290.] Lord Ellenborough's judgment in Doe v. Goff, [p. 290.] Authority of Doe v. Goff denied in Jesson v. Wright, [p. 291.] Observations, [p. 292.] "As tenants in common, with devise over if the issue died under twenty-one," [p. 293.] "Heirs of the body," [p. 293.] Treatment of Crump v. Norwood, in Mosley v. Lees, [p. 293, note.] Remark on Crump v. Norwood, [p. 294.] Devise over in default of issue by the testator following a devise to his wife in tail, [p. 294.] Observations upon Cretton v. Howard, [p. 295.] General remarks upon the class of cases overruled by Jesson v. Wright, [p. 295.] Limitation to heirs of the body, with power of appointment of children, &c. [p. 297.] Examination of circumstances in which Wilcox v. Bellaers differs from Jesson v. Wright, [p. 298.] Share and share alike," their heirs and assigns forever, [p. 299.] Remarks on Right v. Creber, [p. 299.] "If more children than one, equally to be divided among them," [p. 300.] Effect of clear words of explanation annexed to heirs of the body, [p. 300.] Remark on preceding cases, [p. 302.] Heirs male of the body "severally, respectively, and in remainder, the one after the other," [p. 302.] "Such sons construed such heirs male, upon the effect of the whole will, [p. 303.] Remarks upon Poole v. Poole, [p. 304.] To W. and to his heirs male, the elder son surviving, and the heirs male of his body always to be preferred, &c. [p. 304.] Declaration that devise to heirs of the body was intended to be in strict settlement. [p. 306.] I. IT has been already shown, that a devise to A and to the heirs of his body, (a) or to A for life, and, after his death, to the heirs of his body, (b) vests in A an estate tail. On a devise couched in these simple terms, indeed, no question can arise; for wherever the contrary hypothesis has been contended for, the argument for changing the construction of the words has been founded on some expressions in the context; as where words of limitation are superadded to the devise to the heirs of the body; the effect of which has been often agitated, and will here properly form the first point for inquiry. Where the superadded words amount to a mere repetition of the preceding words of limitation, they are of course inoperative to vary the construction. Expressio eorum quæ tacite insunt nihil operatur. Thus, in Burnett v. Coby, (c) where a testator de[272] vised lands to A for life, and, after his decease, to the heirs male of the body of A, and the heirs male of such issue male, it was held, that A had an estate tail. It is also well established that a limitation to the heirs general of the heirs of the body, is equally ineffectual to turn the latter into words of purchase.1 Thus, in the case of Goodright d. Lisle v. Pullyn, (d) where a (a) Ante, p. 232. (b) Ante, p. 241. (c) 1 Barn. B. R. 367. See also Shelley's case, 1 Rep. 93; Legatt v. Sewall, 2 Vern. 551; S. C. 1 Eq. Ca. 394, pl. 7; 1 P. W. 87. See 2 Ves. Sen. 657, where the trust was executory, and would, it is clear, according to the doctrine now established, be executed by a strict settlement. See ante, p. 252. (d) Lord Raym. 1437; S. C. 2 Stra. 729. 1 A testator devised one half of certain real estate to his "son John and the heirs lawfully begotten of his body, and their heirs and assigns;" and it was held, that the first words gave an estate tail to John, and that the words "their heirs and assigns' did not enlarge the devise to a fee simple, either to him or the heirs of his body. Buxton v. Uxbridge, 10 Metcalf, 87; Wight v. Thayer, 1 Gray, 284, 287. See Corbin v. Healey, 20 Pick. 514. |