parties, previous to their marriage, carry these articles into execution by a settlement in fact; or unless there be a context, leading to a different result, by a reference to uses, and adopting them. When such settlement is previous to the marriage, and without any reference to them, the articles are annulled, and no resort can be had to the articles. It has been said, this is on the ground of a supposed change of intention; but it is submitted to be, for want of jurisdiction in courts of equity. To the general terms of these positions, there is an exception, arising from the fact, that it appears, on the face of the settlement, that the parties had the articles in their contemplation, and that the settlement was made in pursuance of, and with a view to perform the articles. Under these circumstances, the Court of Chancery will resort to the articles, and decree an execution of the articles, by limitations in strict settlement; construing the words heirs of the body, to mean first and other sons, and the heirs, &c. or heirs males of their bodies, according to the usual forms of settlements; and inserting estates to trustees to support and preserve the contingent remainders of freehold interests; and by that means insure effect to the intention of the parties. That a trust raised by deed, not being mar riage articles, or by a will, may be deemed executory, it must appear, by express declaration, that the trusts are to settle or convey, &c. so that the Court of Chancery may be entitled to interfere, and direct the mode in which the trust shall be performed. This, indeed, is a subtle distinction; but it is clearly established (1). In the Essay on Abstracts (m), there is embodied a review, by Mr. Watkins, of the cases which have been decided on the construction and effect of marriage articles; and the subject will be resumed in a subsequent part of this chapter. It will now be proper to consider the exceptions to the rule. They naturally fall into an arrangement, which makes it most eligible to consider them as applicable, 1. To limitations of the legal estate ; 2. To limitations of trusts which are executed; and, 3. To limitations of trusts which are ex ecutory. In treating of the exceptions, it will be proper to advert, under each head of division, to the difference of construction of similar limitations in deeds and wills, and to preserve this division, and distinct view of the subject; (1) Glenorchy v. Bosville, Cas. temp. Talb. 4. (m) 1 Vol. p. 136. · calling to mind that the rule does not apply to those cases in which the heirs are not to have the inheritance: thus, in White and Collins (n), the secondary limitation was to the heir for the term of his NATURAL LIFE, by words of express and definite limitation, which confined the estate of the heir to that exact and certain period; thereby giving him a particular estate in direct terms, and negativing the conclusion that the HEIRS were to have an estate of a descendible quality, and the rule did not apply. Seaward v. Willock (o), is referrible to the same ground of decision. To limitations of legal estates by deed, this rule applies uniformly and invariably, with an exception of, first, those instances only, in which the freehold is limited to ONE PERSON, and the second limitation is to the heirs of that person and of another who are husband and wife; or the heirs of the bodies of that person and another who are already married, or may lawfully marry; so that the persons designated as heirs are to be the COMMON HEIRS of their two bodies, not their respective heirs, or the heirs or heirs of the body of each several person (p): or, secondly, those instances in which words of engrafted limitation, or words of modification and regulation, prescribe an order of succession totally different from that which would take place under the limitation to the heirs of the (n) Com. Rep. 289. (0) 5 East, 198. (P) Gossage v. Taylor, supra, 343. ancestor; as in the example stated by Anderson, of a gift to A for life, remainder to his heirs and the heirs females of their bodies (q); the example as to trust estates (which is understood to be also applicable in its principle to legal estates) afforded by the case of Allgood and Withers (r); an example in which, by declaration of trust, equitable interests in lands were, by deed, limited to W for life, remainder to the heirs of the body of the said W, and of G and M and their heirs, executors, administrators and assigns: or, thirdly, those instances in which the word heirs appears, by some expression in the same deed or will, to be used as analogous to, and of the same import only with the word son or child; and this intention is clear from a reference to such term of description. Archer's case, already cited, turns on this ground. That case is also open to the observation that the superadded words of limitation confined the succession to the heirs of the NEXT HEIR MALE of the tenant for life, and made that heir the stock or ancestor of a new succession; and, consequently, prescribed an order of succession materially different from, because far less comprehensive than, the one which must have taken place, under the construction, that the words "next heir male, &c." were words of limitation. (q) Supra, 349. (r) In Chan. in 1735, cited 2 Burr. 1107; 1 Ves. 150; 2 Atk. 582; 2 Ves. 648. Waker and Snow (s) is another example. That case arose on a fine levied to the use of A for life, remainder to the use of his first son, and of the heirs males of HIS body, with like limitations respectively to his second, third, fourth, fifth, and sixth sons, remainder to the right heir male of A to be begotten AFTER the sixth son, and of his heirs male. Next follows Lisle v. Gray (t), a case which arose on a covenant by A to stand seised to the use of himself for life, remainder to the use of E his son for life, remainder to the use of the first son of the body of E, and the heirs males of the body of such first son, with like limitations to the second, third and fourth sons, by distinct clauses, in tail male, with the following declaration at the end of the limitation to the fourth son," and so severally and respectively to every of the HEIRS MALES of the body of the said E, and the HEIRS MALES of the bodies of such HEIRS MALES, according to their ages and seniorities ;" and for default of such issue, then over. Lowe v. Davies (u) depends on words of explanation; for in that case A devised to B and his heirs lawfully to be begotten; that is to say, to his first, second, third, and every 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 (s) Palm. 359. |