estate for life, by the manifest intent of the conveyance, the word "so" being translated eodem modo. (c)

This word "so" identified the limitation which it introduced, with the preceding limitations, to the four first sons; and was tantamount to a limitation to the fifth and every other son. The decision rests upon this connecting monosyllable, as explanatory of what objects were meant by" the heirs males of the body of E.," rather than upon the effect of the engrafted words of limitation, ("and the heirs males of the bodies of such heirs males") or the proviso for raising portions for the daughters; for those circumstances alone would not have warranted the construction adopted. This has also been considered as in effect a limitation to the heir in the singular, with words of limitation superadded; (d) and consequently as governed by Archer's case (e) and other cases of that class. But this mode of considering the case does not appear to support the construction put upon the words "all and every of the heirs males of the body of E." which were understood in the sense of "every other of the sons of the body

(c) "The word so' is intended onwards, and not in like manner." Per North, C. J. Sir T. Ray. 302.

(d) Wilm. 401.' (e) 1 Co. R. 66.

of E." The construction can only be sustained by treating the words "heirs males" as a substituted term for "sons."

In the next case, Lawe v. Davies, (m) the devise was to B. J. and his heirs lawfully to be begotten; that is to say, to the first, second, third, and every other son and sons successively, lawfully to be begotten, of the body of the said B., and the heirs of the body of such first, second, third, and every other son and sons, successively, lawfully issuing, as they should be in seniority of age, and priority of birth; the eldest always, and the heirs of his body, to be preferred before the youngest and the heirs of his body. And in default of such issue, then to his right heirs for ever. The Court held that the whole will must be taken together, and one part explained by the other; and that the intent was most manifest that the devisor, in all the devises of the lands in question, designed to give B. only an estate for life, and not an intail; and that the videlicet and the other clauses were not contrary, but explanatory of what heirs of B. J. the devisor meant.

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Here the words "his heirs lawfully to be begotten" were merely inserted as a short introductory head to apprise the reader of the general tenor of the subsequent limitations, to which we are im

(m) 2 Ld. Raym. 1561. (1729)

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mediately and expressly referred for the really effective and operative disposition of the estate. Besides, the words "his heirs lawfully to be begotten" are not so positive to give an estate tail as "heirs of the body." They might, in the absence of other evidence of intention, have been considered open to different constructions; (n) and it would be against all rules of construction to control the operative and effective part of a clause, by ambiguous words occurring in the introductory part of it. (0)

It is observable that this case did not fall within the terms of the rule in Shelley's case, as no distinct estate of freehold was limited to B. J.; not that the intrinsic meaning of the word "heirs" can be affected by that consideration, which, however, seems to have had a degree of influence in some cases, to which we shall advert under the second head of inquiry.

Mr. J. Blackstone observes, (p) that in Lawe v. Davies, when the testator had first devised in a loose unguarded manner to his son B., and his heirs lawfully to be begotten, he immediately recollects himself, and adds, by way of explanation," that is to say," &c. With deference to such high authority,

(n) Nanfan v. Legh, 7 Taunt. 85.

(0) Per Sir William Grant, 3 Ves. & Bea, 67. g (p) Harg. Tracts. 506.

it is submitted that this is not the true view of the case. The words" that is to say," &c. were not an after-thought, or a retracting of the preceding words; but were the primary and principal idea in the mind of the testator, to which the first words. were merely introductory. It is one continuous and entire disposition; and this constitutes the distinction between such cases, and those in which the subsequent words are merely secondary and referential.

Lord Kenyon adverts to this case in Goodtitle d. Sweet v. Herring (q) in these terms: "In former times, indeed, greater strictness was attributed to the words heirs of the body.' The estate which was the subject of dispute in Lawe v. Davies came to a gentleman who was not satisfied with the decision; and whose doubts were founded upon an old opinion of Lord Holt's, that the words heirs of the body' were so positive to give an estate tail to the first taker, that they could not be gotten rid of by subsequent words. That opinion I have seen but it was certainly too strait-laced a construction, and nobody has ever since doubted that the case of Lawe v. Davies was rightly decided." (r) The assertion that the words " heirs of the body" were interpreted with less strictness than formerly might be true, as applied to the extra-judicial opinions of his Lordship, and some of his brothers but was clearly not at that period borne (g) 1 East. 164. infra. (r) 2 Burr. 1100. infra.

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out by any decision upon those words, except Doe d. Long v. Laming. (s) This dictum must be classed with the assumption of Lord Mansfield in Taylor d. Atkyns v. Horde (t) that feoffments had lost their ancient virtue. Lord Holt's opinion was probably to this effect;-that an express gift to one and the heirs of his body had so fixed a meaning in law, that subsequent expressions which did not so clearly manifest an intention to use "heirs of the body" in another definite sense as to exclude all doubt, would not control those words. Supposing Lord Holt's opinion to have gone no further, it is surely of some value; always bating its antiquity, an objection, which, when time once begins to run against an opinion, must be ever gaining strength, but to which we will hope that some of Lord Kenyon's opinions, upon points of this nature, may not live to be exposed. In Lawe v. Davies such an intention was sufficiently

(s) There is no doubt but that the words 'heirs of the body' may be controlled by subsequent words, that was so held in Lawe o. Davies, and a variety of other cases; and yet it is worth remembering as a matter of curiosity, that Lord Holt and Lord Sommers thought that they could not be so restrained by any words as to carry less than an estate tail." Per Lord Kenyon in Denn v. Puckey, 5 T. R. 306. This "variety" of cases was was not to to be found in the Books in Lord Kenyon's time. It is improbable that Lord Holt and Lord Sommers gave an unqualified opinion that no subsequent expression of intention could explain "heirs of the body" so as to make them words of designation.

(t) 1 Burr. 60.