he bears that relation to them, cannot, by his alienation, make any disposition to their prejudice. Before any observations are submitted on the immediate application of the rule, it will be right to premise, that the rule is of positive institution, and has this circumstance of peculiarity and variance from rules of construction. Instead of seeking the INTENTION of the parties, and aiming at its accomplishment, it interferes in some, at least, if not in all cases, with the presumable, and, in many instances, THE EXPRESS intention. In its very object, the rule was levelled against the views of the parties. Hence has arisen the great difficulty of deciding questions involving the consideration of the rule. To determine whether the operative force of the rule, or rules of construction which take the intention of the parties for their guide, shall prevail, is, generally, the point to be decided. It is to be seriously lamented, that a line cannot be drawn so precisely, as to enable a distinction to be clearly taken, discriminating those cases which are, from those cases which are not objects of the rule.

Every case must, in all instruments, and especially in wills, depend, in a great measure, on its particular circumstances.

The question in these cases will always be, which of the two rules, the one in Shelley's case, or the one which takes the intention for its guide, shall be applied to determine the legal

effect of the several gifts to the ancestor and his heirs.

In the progress of the observations to be offered in this chapter, an attempt will be made to trace the rule in Shelley's case to its principle, and show its force and extent, in the clearest point of view in which it can possibly be exhibited.

To begin with the outlines of the rule: it must be called to remembrance, that in Perrin and Blake (1), Lord Mansfield said, "The rule is not a general proposition, subject to no controul, where the intention is on the other side, and where the objections may be answered." And he agreed with Justices Wilmot and Aston, that "the intention is to govern, and that Shelley's case does not constitute a decisive uncontroulable rule."

And Mr. Justice Buller, in the well considered opinion he delivered on the case of Hodgson and Wife v. Ambrose (m), which involved the discussion of this rule, made this observation; "If a testator makes use of legal phrases or technical words only, the Court is bound to understand them in their legal sense, and they have no right or power to say, that the testator did not understand the meaning of the words he has used, or to put upon them a construction different from what has been long received, or what is affixed to them

(1) 4 Burr. 2579; 1 Collectanea Juridica.
(m) Doug. Rep. 337.

by law-and added the following distinction; "But if a testator use other words, which manifestly indicate what his intention was, and show, to a demonstration, that he did not mean what the technical words import, in the sense which the law has imposed upon them, that intention must prevail, notwithstanding he has used such technical words in other parts of the will (n)."—"That the operation of words must arise from the sense they carry," was a remark of Lord Hardwicke's (o); and "that sense,' Mr. Justice Buller very judiciously observed, can only be found by considering the whole will together (p).”

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In this place, it will be right to attend to a distinction, which will be a clue for solving all questions of ordinary difficulty; and the point of this distinction is, that the rule extends to those limitations only, in which the HEIRS of the person, to whom a previous estate of freehold is given, are, by the manifest intention of the parties, to take under that appellation, in its technical sense, and that appellation embraces all the heirs of the given description, and the limitation has these heirs alone, and no others of a different class, nor the heirs of the heirs as individuals (thereby distin

(n) Doug. Rep. 337; 1 Fonbl. 407; Dodson v. Hay, 3 Bro. Ch. Ca. 408.

(0) In Bagshew and Spenser, 2 Atk: 583. (p) In Hodgson and Ambrose.

guishing between the heirs of the ancestor, and the heirs of the heirs) for its object: and it extends to cases of this description, as often as these heirs are, immediately after the decease of their ancestor, to be entitled in the same manner, and to the same extent of interest, and to an estate exactly with the same DESCENDIBLE QUALITIES, as they would take from their ancestor, if the limitation was at that point, and in that order of the gifts which names the heirs, to him and his heirs, &c. even though it be the intention of the parties, that these heirs shall take BY PURCHASE, and not by descent, and that the estate of the ancestor shall not, in any event, be enlarged by the gift to his heirs: for, as in several sentences, connected in sense though detached in expression, it was emphatically said by Lord Thurlow (q), in declaring his sense of the application of this rule, "where the heir takes in the character of heir, he must take in quality of heir."-" By all the cases where the estate is so given, that after the limitation to the first taker, it is to go to every

person who can claim as heir to the first taker, the word heirs is a word of limitation." And again, “all heirs taking as heirs, must take by descent."

This is the principle, the leading object, and characteristic feature of the rule; and the reader will perceive that it is confined to those in(q) Jones and Morgan, 1 Brown, Ch. Ca. 216.

stances in which the several limitations have this view, and are merely of this description: for, as has been already noticed (r), the rule is not so strict, as to controul the manifest intention, if that intention steers clear of the reason of the rule, or of its literal terms.

The most strenuous advocates for a proper and legal application of the rule, must admit, that the intention is to be collected, and if clearly expressed, to be observed.

After the intention is fixed, the law decides on the gift; allowing the intention to govern, as often as it is clear that the word heirs is not used, as descriptive of the class of legal successors; but in designation of an individual, or of particular persons (s).

The intention to be observed, in exclusion of this rule, must be expressed in terms, manifestly exhibiting to the mind, clear evidence that the heirs are not to take merely in that right, and as answering that description. The inquiry must be directed, to discover the intention, and to see whether the gift is clear of the reasons on which the rule depends for effect: for as Lord Hale very pertinently observed, in King and Melling (t), in reference to wills, the intention is to be law to expound the testament. "The true ground of decision is the intent, and the true question is, what is the intent ? and the (s) Watk. Desc. 170.

(r) P. 272; 1 Fonbl. 407.

(t) 1 Vent. 214. 225; 2 Lev. 59.