find any case where the Court had given a different meaning from what a court of law would on a legal limitation. Nothing was left to the trustees to be done, but to buy the land. The testator had declared the uses of the land when purchased.

And in White and Thornborough (q), a man with a view to his intended marriage, and as a mode of conveyance, covenanted to levy a fine of freehold lands, and to surrender copyhold lands, to the use of himself for life, remainder to his wife for life, remainder to his heirs males of his body by his wife, remainder to the heirs of their two bodies, and omitted to levy the fine or make the surrender; and Lord Harcourt, on a rehearing, after a former hearing by him, in which he had considered the covenant as executory, and to be construed in the same manner as marriage articles, declared, that the covenant to levy the fine and declaring the uses thereof, was to be considered, not as articles but as a defective settlement, and, in that Court (the Chancery) to be of the same effect, as if the fine had been levied, and the surrender made; and that the uses were to be construed as in a perfect and complete settlement, and not to be varied or altered.

In construing marriage articles, and such other instruments as are directory, particularly deeds or wills, providing for a conveyance to be

(q) 2 Vern. 702.

1

made (r), or ordering money to be laid out in the purchase of lands (s), the end and consideration of the articles or other instruments, and the intent of the trusts, are to be regarded (t); and in articles, not followed by a settlement previous to the marriage, or if there be a previous settlement, though the settlement purports, in terms, to be in pursuance and performance of the articles, the limitation to the heirs will not be the subject of this rule, if the application of the rule would give to the ancestor an estatetail, and enable HIM ALONE, SOLELY, and by himself, to alien the inheritance to the prejudice of his children (u); for, in marriage articles, the unborn children are considered as purchasers for a valuable consideration, and the very objects of the intended settlement (x); and since a settlement which leaves the estate wholly in the power of the settling parent, would be nugatory, the Court of Chancery, merely from the nature of the provision (y), construes the words of limitation to the heirs of the body, to

(r) Trevor v. Trevor, 1 Eq. Abr. 387; 2 Brown's Par. Ca. 122; Streatfield v. Streatfield, Ca. temp. Talb. 176; Cusack v. Cusack, 1 Brown's Par. Cas. 470; Nandick v. Wilkes, 1 Eq. Abr. 393. C. 5; Gilb. Eq. Rep. 114; Per Buller, 2 Term. Rep. 252.

(s) Jones v. Langton, 1 Eq. Abr. 392.

(t) Bastard v. Proby, 2 Cox, P. W. 478. and MS.

(u) Honor v. Honor, 2 Vern. 658; 1 P. W. 125; West v. Errissey, 2 P. W. 349; 3 Brown's Par. Ca. 327.

(x) Per Buller, in MSS.

(y) Streatfield v. Streatfield, supra.

mean the children of the marriage and THEIR HEIRS (z); ordering the limitations in the settlement to be to the first and other sons in tail, with remainder to the daughters as tenants in common in tail, with cross-remainders among the daughters in tail; and interposing estates to trustees to support contingent remainders; or ordering the limitations to be less comprehensive; or to vary in terms and in extent of operation, according to the words, descriptive of the heirs.

Articles carried into execution by a settlement previous to the marriage, without any reference by the settlement to the articles; and also those limitations in articles, which will have the effect to exclude the settling parent from the power of barring the intail, without the concurrence of the other parent; and those articles also, which, after making a provision for some issue of the marriage, as sons, by the name of sons, (giving them estates-tail,) and securing portions to the daughters, contain limitations to the heirs of the body; and those articles also, which, by a CHANGE OF EXPRESSION (a), in different classes of limitation, show that the settling party makes a distinction between the words first and other sons, and the words heirs of the body, or even uses the words heirs of the body differently, in different

(z) Roberts v. Kingsley, 1 Ves. 238.

(a) See Orgood v. Strode, 2 P. W. 256, contra, or, at least, an exception.

clauses of the same instrument; are not within the reason, nor objects of the exception.

In those instances in which the settlement is previous to the marriage, without any reference to the articles, the settlement cannot be controlled by the articles.

Some have supposed that relief is withheld on a presumption of a change of intention (b); but it seems rather on the ground of want of jurisdiction in the Court of Chancery, that the settlement is allowed to have its legal operation.

And it has always been thought a sufficient and very prudent provision for the issue, at least the occasions, of the intended marriage, when the settlement proceeds from the husband, that the limitations should give estates, which, though they are of inheritance, do not confer a power of alienation, which can be exercised without the concurrence of the husband and wife (c) so that neither the husband alone, in the life-time of his wife, or either of them after the death of the other, can disinherit the issue.

On this ground, as often as the limitations in their legal import, would entitle the ancestors to interests or estates of this description, the Court of Chancery has declined to interfere, or interfering, has allowed to the limitations pre

(b) Legg v. Goldwire, Cas. temp. Talb. 20.
(c) 7 Ves. 390.

cisely the same effect as they would have had in a conveyance giving legal interests. Therefore, in those instances in which the tenor of the articles is, that the estate of the intended husband, or an estate by his provision, according to the statute of 11 Hen. VII. (under which statute he must convey the estate, or procure the same to be conveyed, or the same must be purchased with his money) (d), shall be so settled, that the wife alone shall have an estatetail; as to the use of the intended husband for his life, remainder to his intended wife for her life, remainder to the heirs of the body or the intended wife, by her intended husband; (as was the form of the limitations in Honor and Honor (e), and Whately v. Kemp (f);) or so that the inheritance shall be a contingent interest to each parent, and can never vest in the parent to whom it is limited; as to the use of the husband for life, remainder to the use of his intended wife for her life, and after the deceases of them both, to the use of the heirs of her body by him, if he survived her, and if she survived him, to his heirs of his body, on her body to be begotten, remainder to his own right heirs; as was the case of Highway and others v. Banner and others (g); the Court of Chancery will NOT VARY or alter the words of limitation; but will suffer them to be inserted in the

(g) 1 Brown's Ch. Ca. 584.

(f) Cited in 2 Ves. 358.