infra, § 43. Dubber v. reason of Archer's case. But the words, first, next, or eldest, or any like words superadded, made no difference. 15. Sir T. Trollop devised the manor of A. to his first son William for life, remainder to the heirs male Cases temp. of his body, remainder to his second son Thomas for life, and after his death to the first heir male of his body. Hardwicke, 160. The Court held that the words heir male were to be understood collectively, and that Thomas took an estate tail; it appearing that such was the testator's intention by the other devises. That this stood disinfra, § 43. tinguished from Archer's case, no limitation being superadded to the words first heir male; and the word first should be understood first in order of succession, from time to time. Where there ded Words to the word 16. A devise to the heirs, or heirs of the body are superad of a prior devisee for life, with superadded words of limitation, will be construed within the rule in Shelley's case, 30 as to create an estate in fee or in tail. Heirs. Goodright v. Pullyn, 2Ld. 2 Stra. 729. 17. A person devised to Nicholas Lisle for his life, Raym. 1437. and after the decease of the said Nicholas, he devised the same unto the heirs males of the body of the said Nicholas, lawfully to be begotten, and his heirs for ever; but if the said Nicholas should happen to die without such heir male, then he devised over. The Judges were all of opinion that this was an estate tail in Nicholas. They held, that if the subsequent words relied on, as his, and if he died without such heir male, were not sufficient to restrain and alter the operation of the words, heirs males, and so qualify them as to make them a description of the person; and that the operation of plain and clear words, and a settled rule of law, should not be defeated or broken into by uncertain or doubtful words, which they took the last at least to be. 18. The following case was sent by the Lord Keeper to the Court of C. B. for its opinion. Legate v. 1 P. Wms. G. Legate devised his lands, in default of issue of his own body, to his nephew William Legate, for and Sewell, during the term of his natural life, and after his 87. decease, to the heirs male of the body of his said nephew lawfully to be begotten, and the heirs male of the body of every such heir male, severally and successively, as they should be in priority of birth; and for want of such issue, to his brother, &c. The question was, whether William Legate the nephew had an estate tail vested in him, or an estate for life only. Three of the Judges were of opinion that William Legate had an estate tail vested in him, and Mr. Justice Tracey certified that he had only an estate for life. Mr. Peere Williams says, the Court appearing not to be satisfied with the certificate of the three judges, directed an ejectment to be brought in B. R. in order to have the matter settled: but it was said the parties agreed, and so the question was not determined. Yet in 2 Vesey, 657, Lord Hardwicke says, Lord Cowper held himself bound to agree with the three Judges, and so decreed. 8 Term R. 19. Thomas Wardell devised thus,-" I give and Morris v. bequeath unto my daughter Lucretia all my planta- Ward, cited tions, together with the negroes, &c., during the 518. 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-mentioned plantations, &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." This case came on before the Privy Council upon an appeal from Barbadoes, and the following reasons were used 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 éstate 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; and then, though she had several sons, yet the eldest only would have been heir, and the younger sons would never have taken under that limitation, though it was clearly the testator's intention that all her sons should take, by using the word heirs, in the 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 lis meaning, that his daughter should take an estate tail, with a remainder to his own right heirs. Signed N. Fazakerley. D. Ryder." * This case was heard before the Privy Council in 1730, when it was ruled that Lucretia took an estate tail. The Chief Justices Raymond and Eyre assisted at the decision. And Lord Kenyon has said, that though the above were only the reasons of the counsel in that case, they contained as much good sense and sound law as if they had the authority of all the Judges of England. 20. There are, however, some cases in which superadded words of limitation may control the word heirs, so as to render them words of purchase; of which an account will be given hereafter. of Trust Sweetaple 21. In devises of mere trust estates, where no con. In Devises veyance is directed, the construction is the same in the Court of Chancery, as it would be in a court of common law upon a devise of a legal estate; so v. Bindon, that the rule in Shelley's case is there applied to the 14. construction of devises, as well as at law. Tit. 5. c. 2. man, 1 P. 22. One devised lands to four persons and their Bale v. Coleheirs, for payment of debts, and afterwards to the use Wms. 142. of them and their heirs. After which, by a codicil, he devised that his will should stand, saving that when his debts were paid, A., who was one of the four devisees in the will, should have his share of the lands to himself for life, with a power to make leases for 99 years determinable on three lives, remainder to the heirs male of his body, remainder over. Lord Cowper was of opinion that A. ought to be tenant for life only, with remainder to his first and other sons in tail male. But the case coming on before Lord Harcourt, on a rehearing, he said— "This being the case of a will differs from the several cases that have been cited of marriage articles, in the nature of which the issue are particularly considered, vide infra. and looked upon as purchasers; and for which reason the Court has restrained the general expressions made use of by the parties; for it cannot reasonably be supposed that a valuable consideration would be given for the settlement of an estate, which, as soon as settled, the husband might destroy. But no case has been cited where upon the words of a will, or the parties claim voluntarily, the like decree has Bagshaw v. Collect. Jur. been made. In all such cases the testator's intent must be presumed to be consistent with the rules of law; and at law these words would certainly create an entail. Neither can it be inferred with any certainty, from the power of leasing given by the testator, that no estate tail was intended; in regard such power of leasing is more beneficial than that given to tenant in tail by statute. And as the debts are admitted by the pleadings to be all paid, the same construction is now to be made, as if there had been originally no trust. So decree A.'s share or fourth part to be conveyed to him and the heirs male of his body, remainder over, &c." 23. The doctrine laid down in the preceding case, was contradicted by Lord Hardwicke in the following one. A person devised an estate to trustees, their heirs and assigns, in trust that they and their heirs should in the first place, by the rents and profits, or by sale or mortgage of the premises, raise so much as should be necessary for the payment of his debts; and after payment thereof gave the same unto his trustees for 500 years, without impeachment of waste, upon trust as after mentioned; and then went on in these words," And from and after the determination of the said estate for years, then I give and devise all my said lands, &c. unto my said trustees, their heirs and assigns, my mind being that my said trustees shall be and stand seised of the said premises in trust to the several uses, behoofs, intents, and purposes after declared; viz. as for one moiety of the same premises, I give and devise the same to the use and behoof of my nephew Thomas Bagshaw, for the term of his natural life, without impeachment of waste; and from and after the determination of that estate, to my said trustees and their heirs, for |