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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 remainder over.

Since in Gossage v. Taylor the heirs of the two persons were not to take distributively, but were to take jointly as answering the description of one common heir, the ancestor could not be entitled to all or any part of the lands in respect of the limitation to the heirs. To have given him any part would have been to put different constructions on the same words, in application to the same subject matter; on words which equally allowed of that construction, or excluded it in respect of every part; and to have given him the whole, would be to allow that the rule extends to those instances, in which the heirs, who are named, are to be the heirs OF THE ANCESTOR and ANOTHER PERSON; and this is carrying the rule beyond its terms or its principle.

In the other cases, the heirs took originally in their own right; and the engrafted words of limitation described the order of succession from them as the stock or first purchasers. In the case stated by Anderson, the ancestor would have taken an estate in fee, in the supposition that the limitation to him and his heirs gave the inheritance to him; while, from the superadded words of limitation, the intention of the parties

was clear, to create an estate in TAIL FEMALE, to commence in, and be deduced from, the persons who should be the heirs of the ancestor.

In the case of Allgood v. Withers, it was clear, that the heirs of the bodies of W, G, and M, were all to take an interest of the same sort ; and that the persons who should be the heirs of the bodies of G and M, were to have A FEE, was equally clear from the words of superadded limitation; while to have construed the limitation to the heirs of the body of W, to have given any interest to their ANCESTOR, would have been to create an intail in him, and to have given to these words a different import from that which they bore in regard to the heirs of the body of R and M, and to have rejected the superadded words of limitation as having no meaning, so far as they related to the heirs of the body of W.

In Archer's case, the father of the next heir male, would have taken an estate in tail male, had the rule been applied to the gift; while the words of limitation were to the heirs male of his next heir male; and from this expression it was manifest, that the words next heir male were used in designation of a particular person; of the person in whom the description of heir male should be first fulfilled; and that the words and to his heirs, &c. were words of limitation, ascertaining the duration of the interest, or continuance of the estate he

was to have; an estate which was not equally extensive with that which would have passed under the construction, that the father of the next heir male had an estate tail; for an estate in tail male in the father would have entitled all his sons and their male issue to have been inheritable; while the words of the devise confined the estate to the next heir male and his HEIRS MALES, and, consequently, excluded all the other sons and their descendants. In the case of Waker v. Snow, the words "right heir male," and in the case of Lisle and Gray, the words "heirs males," as appeared by the context, were clearly used in the same sense in the first of these two instances, as the seventh son, and in the second of these instances, as every OTHER SON after the fourth, in succession, according to the priority of his birth; and the superadded words of limitation, engrafted on the words used in designation of the persons, and as declaratory of the order of succession, expressed the meaning of the parties, in a manner and in terms which did not leave any room for doubt on the intention. In White and Collins (v), the limitation to the heir in express terms, for a definite period of time, clearly demonstrated an intention, that the heir should take as a PURCHASER in his own right, and for a PARTICULAR estate. As he was not to have the inheritance, the terms of the rule do not comprehend a case of this description. This case arose on a devise in (v) Com. Rep. 289.

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a will, but it is apprehended that a similar case, arising on a deed, is open to the like observations, and to be determined by the same rules of law and of construction. It is the particular circumstance under which the limitation is penned, and not the nature of the instrument, which precludes the application of the rule.

Perhaps a gift by deed to a man for life, remainder to his HEIR in the singular number, with words of superadded limitation and procreation, so as to create an intail, will form another exception; partly, indeed principally, on the ground that the word HEIR in the singular number, cannot, IN DEEDS, be considered as describing the whole class of legal and inheritable successors.

And it has been noticed and instanced by the case of Shelley, that the rule applies, though to the words heirs males of the body, other words of limitation, seeming to import a class of persons as THEIR SUCCESSORS, are added. The rule also applies, though, between the several limitations to the ancestor and his heirs, or heirs of his body in deeds, there is interposed an estate to trustees to support contingent remainders, and there are not any contingent remainders to be supported, unless the limitation to the heirs be construed to give an interest of that sort (x). The rule applies also, though there

(x) Hodgson and Wife v. Ambrose, supra; Coulson v. Coulson, Stra. 1125; Atk. 246.

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are other provisions; as that the tenant shall not be impeached for waste, or, which is the same in effect, that he shall be DISPUNISHABLE FOR WASTE; or shall have a power of leasing, &c.; a power for which ere cannot be any occasion, unless the intention of the parties be, that the ancestor shall be merely tenant for his life, and the limitation to his heirs give an interest TO THEM originally, in their own right, and as purchasers.

In wills, the rule applies generally, and without exception, to the several limitations, as often as the gift to the heirs is without any expression. of qualification, restriction, or description, to show that the word heir, or heirs, was used in designation of some particular person, or several individuals, or a class of persons; or that word does not, in fact, nor in intention, comprehend all the objects within the extent of this term, in its general, technical, and strict legal signifi

cation.

Neither the express declaration,

1st, That the ancestor shall have an estate for his life AND no longer (y); nor, 2dly, That he shall have only an estate for life in the premises, and that, after his decease, it shall go to his heirs of his body, and, in default of such heirs, vest in the person next in remainder; and that the ancestor shall have no (y) Robinson v. Robinson, 2 Ves. 225; 5 Bro. Par. Ca. 278.

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