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clause, "And in case the said H. T. Willcox shall die without issue, then from and immediately after (such) his decease," imports nothing more than "from and immediately after his decease and failure of issue," or, in other words, "from and immediately after the determination of the preceding estate ;" and a less violent exposition of the words than Lord Northington applied to the devise in Wright v. Pearson, (m) would clearly give this meaning to the clause. The word "immediately" must be understood, not in the sense of immediately in point of time, with reference to the single event of the death of the first taker; but, immediately in point of limitation, with reference to the previous devise; i. e. without any mediate estate or interest. In fact, there is no such magic in this word as can overturn a previous disposition conceived in clear technical language; though it may sometimes serve to conjure up the semblance of an objection, where nothing more tangible presents itself.

IV. There remains to be considered the circumstance of the bequest of 500l. to the testator's daughter Elizabeth, "in case his son should live and have children, as aforesaid." This bequest does not necessarily suppose, that if his son shall have children born, the daughter's chance of succession will be entirely at an end: but it supposes

(m) Supra 58.

that the limitations to her will then be in the power of the son, as he may appoint to his children, who would take the fee. If any construction be put upon the words "as aforesaid," they must be held to refer to the children mentioned before as objects of the power, there being no other previous mention of children; and if they be rejected, the clause standing as a bequest to the daughter, in the abstract unconnected event of the son's having children, cannot furnish any ground of argument. In Wright v. Pearson, (n) there was a bequest of legacies to nieces, if the first taker should die, without leaving any issue male living at his death : but this circumstance was not allowed to militate against the construction of an estate tail in the first taker.

Thus it appears that on every one of the circumstances capable of being adduced against the estate tail in H. T. Willcox, there existed authorities so strong, that it should seem impossible for any mind, though not thoroughly imbued with veneration for "that remnant of ancient strictness," the rule in Shelley's case, to withstand their direct and conclusive force. Confining our investigations to the words of the will, and to the adjudications already cited as decisive of the construction, the case must appear on the strictest scrutiny, to be absolutely destitute of any point of difference

(n) Supra 58.

whereon to hang a "rational and considerable doubt." But as rational and considerable doubts did exist; as minds competent to meet and overcome all ordinary obstacles, felt the pressure. of difficulties not apparent on the face of the will, or the authorities already produced; the reader will naturally be led to suspect, either that those authorities have not been fairly stated, or that other. authorities of a different complexion have been passed over in politic silence.

But discussions of this nature can propose to themselves no other legitimate object than that of bringing the subject fairly under review; and, if possible, developing the truth. It must not, therefore, be disguised that after Mr. Fearne, by the vigorous efforts of a mind peculiarly fitted for abstruse investigations, seconded by a force of diction which gave to the dry deduction of recondite principles all the energy of original conception, had systematized and illustrated the learning of the rule in Shelley's case, which continued to be studied and upheld as part of the law of the land, in spite of that zeal for intention which imputed to such maxims (a) the narrowness and darkness of the

(a) "A maxim is a sure foundation, or ground of art, &c." Co. Lit. 11. a. "By an ancient maxim of law, although the estate be limited to the ancestor expressly for life, and after his death to his heirs, the fee shall vest in the ancestor.The reason of this maxim has long ceased: but having become a rule of property, it is adhered to in all cases literally within it;

times that begat them, (b) and to their advocates habits and pursuits uncongenial to the reception of the free spirit of a liberal age; (c) after his genius had called forth from the mass of crude materials that lay scattered before him, a fabric at once elegant and solid, and evinced the practicability of recommending the rude institutes of our ancestors to

but where there are circumstances which take the case out of the letter of this rule, it is departed from." Per Lord Mansfield, 2 Burr. 1106. It may be thought that the same authority which could reduce the maxim to a senseless form of words would be competent to abolish it altogether. In a subsequent part of the same judgment we find his Lordship contending against a strict adherence to the mere letter of law. Infra, n. (c)

(b) "The maxim grew with fudal policy, and the reasons of it are now antiquated. I shall ever discountenance, as much as I can, any thing which savours of ancient strictness and policy." Per Willes, J. in Perrin v. Blake, 1 Coll. Jur. 297, 299. "It is an old rule of feudal policy, the reason of which is long since antiquated, and therefore it must not be extended one jot." Ibid. 305.

(c) "I do not doubt but there are, and have been always, lawyers of a different bent of genius, and different course of education, who have chosen to adhere to the strict letter of law; and they will say that Shelley's case is an uncontrollable authority; and they will make a difference between trusts, and legal estates, to the harrassing of a suitor; for great are the doubts frequently which is, or is not a trust. And if courts of law will adhere to the mere letter of law, the great men who preside in Chancery will ever devise new ways to keep out of the lines of law, and tamper with equity." Per Lord Mansfield in Perrin v. Blake, 1 Coll. Jur. 321. His Lordship said that " he thought upon those points at that instant just as he did thirty years ago." Ibid. 318.

the taste of a more fastidious generation; after he had thus founded what appeared to be a durable monument to his fame, so that when the author of the Essay on Contingent Remainders was mentioned, every body "knew who was meant:" (d) the lurking fondness for principles more flexible and docile once more insinuated itself into the Courts; and in a few years made such rapid progress in sapping the foundations of the rule, that in one of the late cases (e) the able counsel for the plaintiff affirmed with truth that the law as laid down by Mr. Fearne no longer obtained.

The mischief may, perhaps, be traced to a source anterior to the labours of Mr. Fearne,—to the case of Doe d. Long v. Laming (f) which was evidently decided under the influence of a strong aversion from the rules of law. That case, though affecting to proceed mainly on the circumstance of its being a devise of gavelkind lands, held out an indirect warrant at least, for construing the words "heirs of the body," when coupled with superadded words of limitation in fee, or words importing a tenancy in common, or other expressions inconsistent with a taking by descent from the

(d) "It was said that the conveyancers had rested upon Coulson v. Coulson, and I know who was meant." Per Lord Mans

field, Perrin v. Blake, 1 Coll. Jur. 321.

(e) Measure v. Gee, 5 Barn. & Ald. 910. Supra 60. (f) 2 Burr. 1100.

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