Further opinion.:

It appearing that Henry Thomas Willcox was not the heir at law of the testator, it becomes necessary to consider the residuary devise to Henry; and upon the authority of the case of Doe v. Scott, 3 Maul. and Sel. 300, I think that if the children took a contingent remainder in fee by purchase, the reversionary estate until the contingency happened passed by the residuary devise to Henry Thomas Willcox. (a) I see, therefore, no reason to vary my opinion.

Lincoln's Inn, Oct. 7, 1819.

דיה

Another opinion on behalf of Mr. Willcox the vendor.

...In my opinion Mr. Willcox was tenant in tail. That conclusion is warranted by Goodright v. Pullyn, 2 Ld. Raym. 1437., and by the late case of Measure v. Gee, (b) on which the Court of King's Bench certified after an argument by Mr. Sugden and myself in last October. And though, in my opinion as an individual, the power was not barrable by a common recovery, yet as Sir John Leach has decided that the power is destroyed, (see Smith v. Death, Sugd. Powers, 3d edit. p. 81.) the vendor may with pro-priety be advised to file a bill for a specific performance. It is singular that there is not any report (c) on this important point..... 77970997 od: 1.,

ad

(a) Supra, 36 n.

ubbing ad abor Lincoln's Inn, Dec. 15, 1821..

(b) Supra, 60. n.”

(c) Since reported, supra, 35 n. Body & boniupor horat

to new ol' sudo trupedre 9dt be. sdmun feruiq ofratremb bins yer to bed sit lo enied dova Morris v. Ward and Others, (a) +3

As stated by Lord Kenyon, ST. R. 518., from Mr. Filmer's Note. bergie eriod 1. Thomas Wardell, seised in fee, had issue a daughter named Lucretia, and by his will dated the 20th of February, 1682, devised thus" I give and bequeath unto my daughter Lucretia, wife of G. Andrews, all my plantation, together with the negroes, &c., charged, &c. during the natural life of my said daughter. Item, I bequeath to the heirs of the body of my said daughter Lucretia begotten, or to be begotten, and to his or her heirs for ever, after my said daughter's decease, all my before named plantation, &c.: but for want of such heirs of the body of my said daughter, I also give and bequeath the aforesaid premises, after the decease of my said daughter, to my own next heirs, and their heirs for ever." The reasons of the counsel in the printed case:-" It is a general rule of law that when an estate is limited to one for life, a limitation afterwards to the heirs of the body of that same person creates an estate tail; and though this be in the case of a will, there is no reason to depart from that rule; for if Lucretia were construed to have an estate for life only, then the remainder to the heirs of her body would be words of purchase; (b) and then though she had had seve-2 ral sons, yet the eldest only would have been heir, and the younger sons would never have taken u have taken under that limitata tion, though it was clearly the testator's intention that all her sons should take by his using the word heirs in the

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un

of (4) This case is shortly, and less accurately, stated, supra, 56. mai der the name of Morris v. Le Gay. It is so stated in Fearn. c. R. 6th edit.31613nioqqa tuioj riot of quibrooss aver sitt balo (2) This must mean words descriptive of the individual heir at the eath of the ancestor, and the e heirs of such heit, supra, 27340) noitos

plural number. And the subsequent clause 'for want of such heirs of the body of my said daughter, to my own next heirs, and their heirs for ever,' is a further explanation of his meaning, that his daughter should take an estate tail, with remainder to his own right heirs." Signed N. Fazakerley, D. Ryder. This was heard before the privy council 18th of March, 1730, when it was ruled that Lu cretia took an estate tail. The Chief Justices Raymond and Eyre assisted at the decision. Richard Morris, Appellant, v. J. Ward and Others, Respondents, from Bar-1 badoes.Judgment affirmed.

སྠཽ

[The above note was read by Lord Kenyon in giving judgment in Alpass v. Watkins, 8T. R. 516., where the question turned upon the effect of words of limitation in fee simple engrafted upon a limitation to heirs of the body in a deed. J. W. being seised in fee of the lands in question, by lease and release, being a settlement previously to the marriage of his son J. W. the younger, with S. S., in consideration of the intended marriage, and of the lady's portion, and for a competent settlement and provision for her, and for the settling, conveying, establishing, and assuring of the lands to the several uses, intents, and purposes thereinafter expressed, conveyed the premises to the use of J. W. the younger for life, remainder r to the use of S. S., the intended wife, for life, and from and after the several deceases of J. W. the younger and S. S., and the survivor of them, then, to the use of the heirs of the body of the said S. S. by the said J. W. the younger, and of their heirs and assigns for ever, and for default of such ssue, to the use of the right heirs of J. W. the younger. J. W. the younger, and S. his wife, levied a fine, and desh clared the uses according to their joint appointment; and then contracted to sell. The purchaser having brought an action for his deposit, the question was whether J. W. the

younger, and S. his wife, could make a good title. It was contended, that though they could make a legal title, yet that equity would rectify the settlement, and that the purchaser taking with notice would be liable. But Lord Kenyon said that, sitting in a court of law, they could not take notice of an equitable title, (a) and it could not be doubted that the defendant could make a good legal title. And, after citing Morris v. Ward, he added, "though the above were only the reasons of the counsel in that case, they contain as much good sense, and sound law, as if they had the authority of all the judges of England. - And that was a stronger case than the present; for there the question arose on a will; and, in order to effectuate the intention of a devisor, a greater latitude of construction is allowed by the courts than in the construction of deeds. But this is the case of a deed; a deed to uses, which must be construed like a common law conveyance. And there is no case, from Shelley's case down to the present time, in which it has been holden that words in a deed, similar to those in this deed, did not create an estate tail. If we were to determine otherwise, we should entrench.on established rules of law, and we should defeat the intention of the parties in this and almost every other case. Cross remainders could not be raised. The consequences of a contrary decision, were well explained by Lord Ch. J. Wilmot, in the case of Roe d. Dodson v. Grew." (b) Notwithstanding that Lurd Kenyon deemed the reasons of counsel in Morris v. Ward entitled to such grave conMa to sideration, it does appear to be little less than idle to refer the rule in Shelley's case to an anxiety on the part of the Courts to embrace the whole line of heirs; and to talk of consulting the intention by vesting the inherit

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+

5 Taunt. 625. This doctrine of

ti (a) But see Ma Maberly v. Robins, 5 96 979700 Lord Kenyon is clearly not law.

(b) Supra, 314.

ance in the first taker. Mr. Preston expressly says that the rule is levelled against the intention; (c) but the above reasoning treats the rule as introduced in aid of the intention. trane da pendo

[This and the two following cases have appeared in print too late for inD. A sertion in the body of the Work.]

Devise in these words, "Hamels [a messuage, &c. of which the testator was seised in fee] to go to my daughter C. M. as follows:-in case she marries, and has a son, to go to that son; in case she has more than one daughter at her husband's, or her death, and no son, to go to the eldest daughter, but in case she has but one daughter, or no child, at that time, I desire it may go to my brother W. M." Held that the word "son" was here used as a collective term, with a view to the whole class, and gave C. M. an estate in tail male.

[The counsel for the plaintiff stated it to be a general rule, that where a man devises to A. an estate for life, with remainder to his son or sons, then, in favour of the intention of the devisor, (unless it be clear from the language of the will that the son is to take eo nomine as purchaser,) the word son or sons will be construed collectively, and as descriptive of all the male descendants, as a class, and the devise will give to A. an estate of inheritance in tail male.

There is certainly a strong line of authority for construing "son" or "sons" as collective terms. There seems, however, to be no special virtue in these words; nor is it (a) Supra, 280.