of their bodies, as tenants in common, with cross-remainders to them in tail female.

§ 39. In this laft cafe, the equity arofe to the iffue female, in whofe favour the court declared, that the fettlement should be altered. But, in a fubfequent cafe, where there was an express provifion made for daughters, a limitation to the heirs of the husband generally was not conftrued as equivalent to a remainder to daughters. But it is now fettled, that the fame equity arifes in favour of females as males.

§ 40. The general doctrine, that, where articles. and a fettlement are made before marriage, and the settlement is made in pursuance of the articles, if the words "heirs of the body" are transcribed from the articles into the fettlement, they will be altered in Chancery, is fully confirmed by the following case:

§ 41. By articles before marriage, an eftate was agreed to be settled on the husband for life, fans waste, remainder to the heirs male of his body, with power to raise portions for younger children,

A fettlement was afterwards made before the marriage, in pursuance of the articles, which adopted the very words of the articles. After the marriage, the husband levied a fine of the eftate, and declared the ufes to himself in fee. The fon of the marriage brought his bill to have the settlement rectified according to the intention of the articles, which was to make his father tenant for life only; though the words, both of the articles and fettlement, in construction of law, made

Streatfield v.
Streatfield,
Forrest. Rep.
176.

him tenant in tail: for, if fuch was the intent, it was needless to give him a power to raise portions.

Lord Hardwicke decreed the lands fhould be conveyed to the fon in tail.

$42. If the fettlement is made after the marriage, and adopts the words of the articles, it will be rectified in the fame manner as in the former cafes.

$ 43. A perfon, by articles previous to his marriage, agreed to fettle lands, to the ufe of himself and his intended wife for their lives, and the life of the furvivor;

and, after the furvivor's decease, to the use of the heirs of the body of the intended husband on his wife begotten, with remainders over. The marriage took effect; and, feveral years after, the hufband, by deed reciting the articles, fettled certain lands to the ufe of himself and his wife for their lives, and the life of the longest liver of them; and, after their deceafe, to the ufe of the heirs of the body of the husband by his faid wife, remainder to the right heirs of the hufband.

It was decreed by Lord Talbot, that the husband ought only to be tenant for life, and the fettlement must be rectified in that refpect.

$ 44. This doctrine is adopted only in cafes of marriage articles, and is not extended to limitations, in fettlements of the legal estate.

§ 45. John

S 45. John Watkins, by fettlement on the marriage of his eldest fon, conveyed his estate to trustees to the use of himself for life, remainder to his wife for life; remainder to his fon John for life; remainder to his intended wife for life, for her jointure; remainder to the heirs of the body of the faid intended wife by the faid John the fon to be begotten, and their heirs and affigns for ever; remainder to the right heirs of John the fon for ever.

It was contended, that, as it appeared by a recital in the fettlement, that it was made "for the fettling, "conveying, and affuring of the faid premifes to the "feveral uses therein-after expreffed," a court of equity would rectify the fettlement, by inferting a li mitation to the first and other fons of the marriage, in the room of the limitation to the heirs of the body of the intended wife. But Lord Kenyon was clearly of opinion, that the wife took an eftate tail under the fet tlement.

§ 45. Although, where articles are entered into before marriage, and a settlement is made after marriage, different from thofe articles, the court will fet up thofe articles against the fettlement; yet, when both the articles and the fettlement are previous to the marriage, at a time when all the parties are at liberty, and the fettlement is not expressed to be made pursuant to the articles, if fuch fettlement differ from the articles, it will be confidered as founded on a new agreement, and will control the articles.

§ 47. The rule, in Shelley's cafe, has been adopted in the construction of affignments of terms for of terms for years; and the words, heirs of the body, have been held to be words of limitation.

§ 48. A term for years was affigned in trust that baron and feme might receive the profits during their lives, and the life of the longer liver of them, and, after their death, to the heirs of the body of the wife

to be begotten by the husband; the court held, that the whole intereft of the term vested in the wife. But this decree was reverfed, and the reverfal affirmed by the House of Lords; but the doctrine established by this reverfal was soon altered.

§ 49. A term of years was affigned, in confideration of marriage, to trustees, upon trust to permit the hufband to enjoy the fame as long as he should live, and, after his decease, to his wife, as long as the fhould live; and after their decease, to permit the heirs of the bodies of the faid husband and wife to be begotten, to hold the premises during the remainder of the term; it was held by the Master of the Rolls, that the children of the marriage took by purchase. But, upon a rehearing before Lord Keeper Harcourt, his Lordfhip obferved, he never heard it faid before the cafe of Peacock v. Spooner, that the limitation of a term in equity differed from the cafe of a freehold at common law; and, as that cafe was not exactly parallel, he did not think himself tied up by it, and reversed the decree made at the rolls.

§ 50. A term

v. Kilburne,

2 Vel. 233

§ 50. A term was vested in trustees by a voluntary Theebridge deed, in trust to pay the profits to Sarah Sharp during her life, and, immediately from and after her decease, to the heirs of the body of Sarah lawfully to be begotten, if the term should fo long endure; and, for default of fuch iffue, to the granddaughter of the settlor.

Lord Hardwicke was of opinion, that the whole trust of the term vefted in Sarah Sharp.

S 51. But where there were words of limitation fuperadded to the words heirs of the body, the conftruction has been different.

S 52. Edward Buffey being poffeffed of a term for fifty-nine years, by voluntary deed conveyed it to

trustees in trust, to permit Grace Buffey his wife to

Unless there are fuperadded Words.

Hodfol v.
Buffey,
Forrest MSS.

S. C. 2 Atk.

89.

receive the rents and profits for the faid term of fifty- Barnard. 199.

nine years, if she should fo long live, and after her decease to the use of the faid Edward for life, and after the decease of Edward and Grace, then in trust for the heirs of the body of the faid Grace by the faid Edward, and to their executors, administrators, and affigns, for the refidue of the faid term of fifty-nine years, and for want of fuch iffue, &c.

Lord Hardwicke was of opinion that the whole did not vest in Grace, the words being, not words of limitation but of purchase; and that they might, from the circumstances of the cafe, be confidered as words of purchase, appeared from Archer's cafe, where the fuperadding

1 Rep. 66.