Hutchinson & Tenant, 8 Ch. D. 540; see Sinnott v. Walsh, 5 Chap. XXV.

L. R. Ir. 27.

If there are no children the donee of the power may select relations not within the degree of next-of-kin. Grant v. Lynam, 4 Russ. 292.

If the power is not exercised the statutory next-of-kin are entitled. Cruwys v. Colman, 9 Ves. 319.

5. Where it is clear that the testator has used the word family in a wider sense than any of those here mentioned, but it is uncertain who were meant to be included, the gift will be void for uncertainty. Yeap Cheah Neo v. Ong Cheng Neo, L. R. 6 P. C. 381; see Robinson v. Waddelow, 8 Sim. 134; In re Cullimore's Trusts, 27 L. R. Ir. 18.

gift to several

When family is construed children, a simple gift to the Whether a families of A. and B. goes per capita in joint tenancy. v. Smith, 9 Ha. 708.

Gregory

So, too, a gift to be divided between the families of A. and B. goes to all the children of A. and B. per capita as tenants in common. Barnes v. Patch, 8 Ves. 604; see, however, Alexander v. Douglas, Rom. N. of C. 93.

families goes

per capita or per stirpes among them.

Under a direction that after the death of the testator's wife, to Friends. whom a life interest in lands was given, the lands should revert to the testator's friends, the heir at law was held entitled. Coogan v. Hayden, 4 L. R. Ir. 585.

Chap. XXVI.

Devise of Borough English and Gavelkind lands to the heir.

In what cases

CHAPTER XXVI.

GIFTS TO HEIRS, NEXT OF KIN, REPRESENTATIVES, AND
EXECUTORS.

WHERE Borough English or gavelkind lands are devised with other lands to the testator's heir, the common law heir is entitled. Davis v. Kirk, 2 K. & J. 391; Thorp v. Owen, 2 Sm. & G. 90; Buchanan v. Harrison, 1 J. & H. 662; Sladen v. Sladen, 2 J. & H. 369.

So where Borough English lands alone are devised to A. for life, with remainder to her sons and daughters and their heirs, and if A. dies without having such heirs, to the testator's sons and daughters then living and the heirs of those who may be deceased, the common law heir takes under the ultimate gift. Polley v. Polley, 31 B. 363.

In the same way a devise of gavelkind lands alone to the testator's right heirs goes to the common law heir. Garland v. Beverley, 9 Ch. D. 213.

The rule is that "nemo est hæres viventis," and therefore a the word heir devise to the heirs of a living person is contingent, unless the

refers to a

persona designata.

term heirs is so qualified by express words or by the general intention of the will as to show that the testator meant by heir the heir apparent or presumptive or some other person, who will then take as persona designata.

This will be the case if the testator speaks of the heirs of the body of B. now living. Burchett v. Durdant, 2 Vent. 311; Carth. 154; see Chambers v. Taylor, 2 M. & Cr. 376.

Or the intention of the testator to use the term as designating a person may be gathered from the whole will; if, for instance, the so-called heir is directed to pay annuities to certain persons during whose life he cannot be strictly heir. Darbison d.

Long v. Beaumont, 1 P. W. 229; 3 B. P. C. 60; Good- Chap. XXVI. right v. White, 2 W. Bl. 1010; Winter v. Perratt, 9 Cl. & F. 606.

A devise to the heirs and assigns of " A., as if she had continued sole and unmarried," is a gift to the person filling the character as persona designata. Brookman v. Smith, L. R. 6 Ex. 291; ib. 7 Ex. 271; Dormer v. Phillips, 4 D. M. & G. 855; 3 Dr. 39; Fearne, C. R. 209-212.

The persons, if more than one, who constitute the heir take Co-heirs take as joint as joint tenants. Swaine v. Burton, 15 Ves. 365; Mounsey v. tenants. Blamire, 4 Russ. 384; Berens v. Fellowes, 56 L. T. 391; see also Moore v. Simkin, 31 Ch. D. 95.

ment of a

The appointment or acknowledgment of a person as heir, Acknowledgthough he may not be the real heir, is sufficient to carry to him person as the testator's real estate. Parker v. Nickson, 1 D. J. & S. 177 ; 11 W. R. 533; 32 L. J. Ch. 397.

A devise to the right heirs male, or to the right heirs of a particular name, will go only to the very heir, who must be a male or of that name. Ashenhurst's Case, Hob. 34; cit. Counden v. Clarke, Moore, 860, pl. 1181; Hob. 29; Wrightson v. Macaulay, 14 M. & W. 214; Thorpe v. Thorpe, 32 L. J. Ex. 79; see Co. Lit. 24b, note by Hargrave.

If the devise is to the right heirs exclusive of A., who is the right heir, the devise fails. Goodtitle d. Bailey v. Pugh, Fearne, Cont. Rem. 573; 2 Mer. 348.

heir.

Devise to the particular name or to

heir of a

heirs male.

body.

The rule does not, however, apply to heirs of the body, Heirs of the whether taking by descent or purchase. Wills v. Palmer, 5 Burr. 2617; 2 W. Bl. 687; Evans d. Weston v. Burtenshaw,

Co. Lit. 164a, n. (2).

An heir male taking by inheritance must trace his descent Whether the entirely through males. Co. Lit. 25a.

heir male taking by

trace his

It is said by Jarman, ii. p. 912, that this does not apply to a purchase must gift to the heir male or female by purchase, citing Hob. 31; descent through Co. Lit. 25b. At any rate it is clear that if the word lineal be males. added the heir must trace his descent through males. Oddie v. Woodford, 3 M. & Cr. 584; Bernal v. Bernal, 3 M. & Cr. 559; and see Doe d. Angell v. Angell, 9 Q. B. 328; Thellusson v. Rendlesham, 7 H. L. 429.

Chap. XXVI.

Heir ex parte materná.

Rule in
Mandeville's

case.

It appears, however, to be concluded by authority that, even in the absence of the word lineal, the heir male taking by purchase must claim through males. Lywood v. Kimber, 29 B. 38. See per Lord St. Leonards, 7 H. L. 512; and see Doe d. Winter v. Perratt, 3 M. & Sc. 594.

Under a devise to the heir ex parte materna a person who is also heir ex parte paternâ may take. Rawlinson v. Wass, 9 Ha. 673; In re Willomier's Trusts, 16 Ir. Ch. 389.

RULE IN MANDEVILLE'S CASE, CO. LIT. 26B.; FEARNE, 80.

"Where an estate is limited to the heirs special of a particular ancestor, without any estate of freehold limited to the ancestor (either expressly or by implication), it is impossible to effectuate the expressed will of the donor and to make the estate pass through the whole series of the special heirs designated, except by regarding the limitation as if it were an estate tail, which had originally vested in and descended from the ancestor himself, and yet the first taker must take as purchaser, because no estate did in fact vest in or descend from the ancestor." Vernon v. Wright, 2 Drew. 439; 7 H. L. 35.

The result is the creation of a quasi entail, partaking of the opposite qualities of purchase and descent. Thus, where the limitation was to Roberge and the heirs of the body of her late husband John de Mandeville by her, where John de Mandeville had left a son and daughter, it was held that the daughter took on the death of the son per formam doni, as the person, who would have been entitled, if the estate had descended from the ancestor. Mandeville's Case, Co. Lit. 26b.

The rule in Mandeville's case applies equally where the limitation is to the heirs of the body of the testator. Allgood v. Blake, L. R. 7 Ex. 339; ib. 8 Ex. 160.

It has been adopted where the term issue was used. Whitelock v. Heddon, 1 B. & P. 243.

But it will not be extended to a devise to the heirs of the body of a deceased person, excluding certain lines of descent, which would comprehend the real heirs of the body; nor does it apply to a devise to the right heirs male of a person, though a

devise to A. and his heirs male gives A. an estate tail. Allgood Chap. XXVI. v. Blake, supra; Ashenhurst's Case, Hob. 34; Baker v. Wall,

1 Ld. Raym. 185; Doe d. Lindsey v. Colyear, 11 East, 548.

And it does not apply where the limitation is to heirs general. Moore v. Simkin, 31 Ch. D. 95.

heirs of the

Heirs of the body, however, used as a term of purchase, may In what cases mean children if the devise is to them as their parent shall body means appoint, or if they are to take equally among them as tenants children. in common. Jordan v. Adams, 9 C. B. N. S. 483; Right v. Creber, 5 B. & Cr. 866; in which case the estate of the ancestor being equitable did not coalesce with the limitation to the heirs.

ASSIGNS.

As a rule the words "and assigns," following the word heirs, Assigns. have no operation; "they have no conveyancing virtue at all, but are merely declaratory of that power of alienation which the purchaser would have had without them." Wms. R. P. 142; Brookman v. Smith, L. R. 6 Ex. 291.

It has, however, been held that a legal limitation to the heirs and assigns of a person, who had a prior equitable life estate, gave that person a general power of appointment over the property. Quested v. Michell, 24 L. J. Ch. 722. See, too, Tapner v. Marlott, Willes, 177; and A.-G. v. Vigor, 8 Ves. 256, 291; but it is unlikely that this construction will be extended.

The effect, however, of a gift to A. or his heirs or assigns, is to give the absolute interest to A. Wilton's Estate, 8 D. M. & G. 173; Hopkins' Trust, 2 H. & M. 411. See post, p. 291.

BEQUESTS OF PERSONALTY TO HEIRS.

1. A bequest of personalty to the right heirs, or to the heirs Bequests of personalty to at law, or the next heir of an individual, primâ facie goes to heirs. such heir as persona designata, whether the bequest be to the heirs of the testator or of a stranger. Mounsey v. Blamire, 4 Russ. 384; Hamilton v. Mills, 29 B. 193; De Beauvoir v. De Beauvoir, 3 H. L. 524; Re Rootes, 1 Dr. & Sin. 228; Southgate v. Clinch, 27 L. J. Ch. 651; 4 Jur. N. S. 428.