Construction of the Devise in Willcox v. Bellaers. General Principles applicable to "Heirs of the body" in Devises.

Powers of appointment consistent with Estate
Tail in the Donee.

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Of necessary Inference or Implication.

Of Words of Limitation in Fee engrafted upon "Heirs of the body."

Of Words introducing an Ulterior Disposition.

THE devise in Willcox v. Bellaers operated either to give an estate tail to H. T. Willcox, with a power of appointing among his children; (a) or, to give him an estate for life, with a like power, with a contingent remainder to his children in fee, (reading "heirs of the body" as synonimous with children,") with alternative contingent remain

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(a) It is observable, that on the execution of the power, the appointees would have taken the fee by force of the devise, and that the donee had no option as to the quantity of interest to be taken, but was merely to determine the shares. This circumstance was insisted upon in argument: but any inference to be drawn from it must be purely conjectural. No arguments are offered as to the effect of the recovery in extinguishing the power, because that point must be considered as set at rest by the decision of the Court in Smith v. Death, 5 Mad. 371; by the reasons advanced by Mr. Sugden, Treat. Pow. 3d ed. 73., and by the general sense of the profession.

ders to the daughter and her children, constituting what is termed a contingency with a double aspect. (b)

If H. T. Willcox took an estate tail, the recovery of course acquired the fee; and if he took for life only, the remainders to his children, and to the daughter and her children, (which, as he was a bachelor at the time of suffering the recovery, were all in a state of contingency) were defeated by the destruction of the life estate, by which they were supported; and the vested remainder in fee, (c) which passed to him under the (b) Fearn. Cont. R. 293.

(c) It is clear that so much of the fee as was not immediately disposed of under the limitations, (and an estate for the life of Willcox only was so disposed of,) would, in the absence of a residuary devise, have descended to the testator's heir, subject to be divested by the happening of the contingency, Fearn. C. R. 274. This portion of the fee, being previously disposed of in event only, passed by the residuary devise; it was properly a remainder. The effect, I apprehend, would be precisely the same, if the devise were to A. for life, remainder to him in fee but if A. shall have children, then, from and after his decease, to such children in fee; and in default of children, then, from and after his decease, to other objects. These latter limitations would, I conceive, be alternative contingent remainders. By changing the order of the devises we do not change the nature of the estates. It must be immaterial whether the immediate fee, expectant on the life estate of the first taker, passes by a residuary devise, in a subsequent part of the will, or by a specific gift which immediately follows the limitation for life. The juxtaposition of the gift for life, and of the vested remainder in fee, cannot exclude, or affect, the construction of the contingent limitations. Indeed it may be a question whether this

residuary devise, (d) was reduced into possession, discharged of all the limitations of the will. On would not be the more accurate mode of framing the disposition, as it seems to convey a clearer idea of its legal effect. According to the language of the Court in Plunket v. Holmes, Sir T. Ray. 28. A. would have the fee in such sort as not to confound the life estate, but that there would be an hiatus to let in the contingency when it happened.

In most of the cases to be found in the books, where the fee has been gained by the destruction of contingent remainders, the person destroying them took the immediate fee by descent as heir at law of the testator. As in cases circumstanced like Willcox v. Bellaers, it is often doubtful whether the devise creates an estate tail, or an estate for life, with contingent remainders, a recovery is the usual assurance; and the expression "barred by the recovery" is sometimes used in speaking of the destruction of the contingent estates; (see Denn d. Webb v. Puckey, 5 T. R. 299.) But this expression conveys an erroneous idea, inasmuch as the remainders are excluded by the coalition, by the act of the party, of the estate for life, and the immediate remainder or reversion in fee; and this effect (as is well explained by Mr. Butler, Fearn. C. R. 6th edit. 321. n), would equally result from a common conveyance by lease and release. I have noticed this point, because it has occurred to me in practice to find that persons, not thoroughly conversant with the doctrine, have been misled by this inaccurate language. It might lead parties into the fatal mistake of destroying the life estate and contingent remainders, and accelerating the right of an adverse vested remainderman or reversioner. If the tenant for life has the immediate vested fee, either by descent, or under a specific or residuary devise, or by any other means; or if it be vested in another person willing to concur; the contingent remainders may be defeated; and, as it is conceived, a clear marketable title to the fee simple acquired by an ordinary conveyance. But this observation must, of course, be confined to devises of the legal

estate.

(d) Doe d. Wells v. Scott, 3 Maul. and Sel. 300.

either construction, therefore, it is conceived that H..T. Willcox had a clear title. (e)

The only mode of defeating his title, would be to construe the devise as giving him an estate for life, with a contingent remainder to his children in tail, (f) in which case the remainders over, being limited after an estate tail only, would of course be vested, and be reduced into possession by the operation of the recovery. But there is clearly no room for this construction.

If any proposition in law be capable of demonstration, the proposition that H. T. Willcox took under this will an estate tail appears to be demonstrable.

That a legal limitation to heirs of the body, uncorrected and unexplained, and preceded by a legal freehold in the ancestor, cannot operate by purchase; (g) that an express declaration (h) that (e) See 1 Smith 392.

(ƒ) Doe v. Reason, cited 3 Wils. 244. Smith v. Horlock, 2 Marsh. 405. 7 Taunt. 429. Murthwhite v. Barnard, 2 Brod. and Bing. 623. (Qy. this case.)

(g) Shelley's case, 1 Co. 93. As the rule secms to have been lost sight of in the modern cases, it may be useful, or at least entertaining “as a matter of curiosity," (5 T. R. 306.) to state it as laid down in the case from which it takes its name. "And as to what hath been objected, that forasmuch as the limitation was to the heirs males of the body of Edward Shelley, and the heirs males of the body of such heirs males, the heirs males of the body of Edward Shelley should be purchasers; for otherwise the

the ancestor shall take for life, and no longer, (i) and the heirs of the body an estate in remainder, as purchasers, (k) is wholly ineffectual to exclude the application of a rule of law, which has for its essence and object the disappointment of that intention; that to establish an intention that heirs of the body, as such, shall take by purchase, after an estate of freehold in the ancestor, is, in effect, to supply the very circumstance which imperatively demands the application of the rule; (1) that the idea of a class, or denomination of persons, to take in a course of succession ordained by law, is so annexed and appropriated to the words "heirs of the body," that the mind with difficulty reconciles itself to any other interpretation; (m) that an intention to use the words in a sense different from,

subsequent words would be void; the defendant's counsel answered, that it is a RULE OF LAW when the ancestor by any gift or conveyance takes an estate of freehold; and in the same gift or conveyance an estate is limited, either mediately or immediately, to his heirs, in fee, or in tail; that always, in such cases, the heirs are words of limitation of the estate, and not words of purchase. So inasmuch as in this case Edward Shelley took an estate of freehold, and after an estate is limited to his heirs males of his body, the heirs male of his body must of necessity take by descent, and cannot be purchasers."

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(h) Harg. Tracts 562. But see 1 Eden 366. Infra, Sect. VI.

(i) 2 Lord Ray. 1440. Thong v. Bedford, 1 Bro. C. C. 313.

Roe v. Bedford, 4 Maul. and Sel. 362.

(k) Papillon v. Voice, 2 P. Wms. 471. Coulson v. Coulson, 2 Stra. 1125. And see 1 Eden 365.

(1) Prest. Est. 282.

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(m) See Lord Holt's opinion quoted in Goodtitle v. Herring, 1 East. 164. See also 3 T. R. 493. 5 T. R. 306.