*759] *The questions for the opinion of the court are,-first, whether the plaintiff took under the said will and codici a legal estate tail in the property in respect of which the action is brought,-secondly, whether he took under such will and codicil an equitable estate tail in the said property.

If the court shall be of opinion that the first or second question ought to be answered in the affirmative, then judgment shall be entered for the plaintiff for 18. and costs of suit. If the court shall be of opinion that both the said questions ought to be answered in the negative, then judgment of nolle prosequi, with costs of defence, shall be entered for the defendant.

The case was twice argued. The first argument took place in Michaelmas Term, 1859, before Erle, C. J., Crowder, J., and Byles, J.

Atherton, Q. C. (with whom was Kemplay), for the plaintiff, submitted, that, under the terms of the devise contained in the fifth paragraph of the will, William Jordan took an estate tail; and he referred to the following authorities:-Shelley's Case, 2 Co. Rep. 88 b, 93 a, Jesson v. Wright, 2 Bligh 1, Featherston v. Featherston, 3 Clark & F. 67, Roddy v. Fitzgerald, 6 House of Lords Cases 823, Toller v. Attwood, 15 Q. B. 929 (E. C. L. R. vol. 69), Lowe v. Davies, 2 Ld. Raym. 1561, 2 Stra. 849, 1 Barnard. B. R. 238, and 2 Jarman on Wills, pp. 203, 303, 231.

Bovill, Q. C. (with whom was Charles), for the defendant, submitted that William Jordan, under the devise in question, took only an estate for life, citing the following authorities: Sibley v. Perry, 7 Ves. 522, *760] Clay v. Pennington, 7 Simons 370, Fruen v. Osborne, *11 Simons 132, Pope v. Pope, 14 Beavan 591, Smith v. Horsfall, 25 Beavan 628, Goodtitle d. Sweet v. Herring, 1 East 264, North v. Martin, 6 Simons 266, Gummoe v. Howes, 23 Beavan 184, The King v. The Marquis of Stafford, 7 East 521, Sugden on Powers, 7th edit. 480, 483, Fearne's Contingent Remainders, 9th edit. 188, and 2 Jarman on Wills 310. He also relied upon the eleventh clause of the will as throwing some light upon the construction of the fifth clause.

The court took time to consider; and Crowder, J., having died, and there being some difference of opinion amongst the other learned judges, a second argument was directed. The case was accordingly argued again in Hilary Term, 1860, before Erle, C. J., Williams, J., Willes, J., and Keating, J.

Kemplay (with whom was Atherton, S. G.), for the plaintiff, in addition to the authorities referred to upon the former argument, cited the following:-Jones v. Morgan, 1 Bro. C. C. 206, Poole v. Poole, 3 Bos. & P. 320, Woodhouse v. Herrick, 1 Kay & J. 352, 2 Jarman on Wills 267, 268, 312, 313, 323, 371, and Hayes's Inquiry 227, n.

Bovill, Q. C. (with whom were Archibald Smith and Charles), for the defendant, besides the authorities he before referred to, cited White v. Collins, 1 Com. R. 289, Perrin v. Blake, 4 Burr. 2579, 1 Sir W. Bl. 672, and Hargreave's Tracts 505. Cur. adv. vult.

ERLE, C. J., now delivered the judgment of the majority of the

court:

In this case the plaintiff contends that the devise to him for life, with remainder to the heirs male of his *body, has created an estate *761] in tail-male in him; and it is clear that it does create that estate

"unless a judicial mind sees with reasonable certainty from other parts of the will the testator's intention" (to use the words of Lord Wensleydale in Roddy v. Fitzgerald, 6 House of Lords Cases 823, 877), that those words should not operate as words of limitation of the inheritance, but should be words of purchase creating an estate in remainder in the persons coming within the designation of heirs male of the body, and also within the further description contained in the will. We proceed, therefore, to examine the other parts of the will for the purpose of ascertaining that intention; and for this purpose all the parts of the will should be considered together, and effect given to every part, unless there should be absolute inconsistency. Now, every part of the devise here has effect according to the ordinary meaning of the words, if heirs male of the body of William are construed to be words of purchase, and to mean sons. First, the devise is to William for life; and, although this is of no avail where the rule in Shelley's Case, 1 Co. Rep. 93 a, applies, still, until it is ascertained that the testator intended by the word "heirs" to pass the inheritance, that rule has no application. Here, that intention is the point in dispute; and, in weighing both sides, the express intention to devise to William for life operates against inferring an intention to give him an estate tail.

Secondly, the devise is to the heirs male of the body for their natural lives. Now, the question being whether the intention was to pass an estate of inheritance by the use of the word "heirs," the testator, who has shown by the will that he knew the difference between estates for life and estates of inheritance, has excluded the notion of passing the inheritance, by directing that the persons designated as heirs male of the body should take life-estates only.

*In Archer's Case, 1 Co. Rep. 66 b, a devise to A. for life, [*762 remainder to the next heir male of A. and the heirs male of the body of such heir male, was construed to be an estate for life in A., and an estate tail by purchase in the person who might be the next heir male of his body. The superadded words of limitation "to the heirs male of the next heir male" were held to negative the intention to pass the inheritance to the heirs of A. by descent, which would otherwise be presumed from the word "heir." In the present case, the words superadded are more inconsistent with intending to pass the inheritance. In White v. Collins, 1 Com. 289, the gift was to A. for life, remainder to the heir male of his body for life, remainder over. There is a most elaborate argument by Comyns, to show that A. took an estate tail, and that the limitation for life to the heir male of his body should be rejected: but the court decided to the contrary, and construed the gift to be a gift of an estate for life to the son of A. This case is in point for the present defendant.

Thirdly, the devise is to them for their lives, either in succession according to their respective seniorities, or in such parts and proportions, manner and form, and amongst them, as William Jordan, their father, shall appoint. If the first alternative is taken, then, upon the plaintiff's supposition that an estate tail was intended, the words "in succession according to seniority" are wholly inoperative; but, on the defendant's supposition, that estates for life were intended, every word has effect. If the other alternative is taken, viz., that the estate should pass to the appointees, as their father should appoint, upon the supposition of an

estate tail in the father, these words must be rejected; upon the supposition of life-estates by purchase, every word has full effect. Furthermore, not only is an estate by appointment inconsistent with an estate tail by descent, *but also this alternative brings the case within *763] the rule, that heirs male of the body shall be construed to be sons, where the testator has so interpreted them in his will: for, if the power of appointment is exercised, the appointor must stand in the relation of father to the appointees; it follows that the testator meant to designate sons as the heirs male of the body who might be appointees.

The devise proceeds to dispose of the remainder by the words "In default of such issue male of William Jordan, then to Richard and his male heirs." If this provision had been in default of issue male of William, the plaintiff would have had a strong support: but the words are, in default of such issue male; and this default must be construed by reference to the issue male before described; and, as above stated, the testator has explained issue male of William to mean sons.

The devise to Richard was contended by the plaintiff to be a contingent remainder after an estate tail, and not a vested remainder after estates for life, because it provides in case the said Richard or his heirs male should become seised and possessed thereof, that the estate should be charged with 20007. legacy to the daughters of William. But the words of contingency have a clear application without assuming an estate tail in William; for, if the devise is to William for life, remainder to his sons for life in succession, remainder to Richard in tail male, then it is a contingency whether Richard will have any son, and whether he or his son will ever have the estate in their actual possession; and it is only in that event that the 2000l. are given to the daughters of William. This is clear, because the testator provides for the failure of the heirs male of Richard, and in that event gives the fee to the heirs of Robert, without the charge of this sum on their estate.

*Other

parts

There are

*764] of the will confirm this construction. seven distinct devises. In making them, the testator shows that he well knew how to create either an estate for years, or for life, or in tail, or in fee; and, though he may not have known the rule in Shelley's Case, he shows that he knew the distinction between these estates, and has given them by appropriate legal language; and he has invariably used the word heirs to pass the inheritance, except in the devise in question, where the heirs are directed to take for life.

The relation of the testator to the devisees respectively which appears in the will, is a further confirmation of this construction. The objects of the testator's bounty were all collateral relations, and therefore the usual argument against an intention to disinherit his own lineal descendants has no relevancy.

It should also be observed that he has, among the other devises, more than once given an estate to the father for life, remainder to his sons in tail, remainder to his daughters as tenants in common, remainder over. But, in the devise in question, he purposely omitted the daughters of William, and preferred Richard to them; giving them instead a contingent legacy charged on the estate. As he preferred Richard to the daughters of William in this instance, he may have had the same reason for preferring Richard's sons to the grandsons of William.

Though we are well aware of the importance of adhering to the doctrine laid down in Jesson v. Wright, 2 Bligh 1, where it applies, we think, for the reasons above assigned, it does not apply here; and that the authorities cited by Mr. Bovill require us to hold that the meaning of the words "heirs male of the body" in the devise in question, is explained by the testator to be "sons."

Our judgment, therefore, is for the defendant, to the effect agreed on in the special case.

*WILLIAMS, J.—I concur with the judgment of the rest of the Court in this case; but I am induced so to do, solely on [*765 the ground of the use of the words "their father" in the power of appointment. I agree, though with no little doubt remaining on my mind, that those words may be taken to demonstrate, that, by "heirs male of the body," the testator meant "sons." But for those words, I should have thought an estate in tail male passed by such a gift, notwithstanding the inconsistent limitations and the other obstacles pointed out in the judgment, just delivered by my Lord, both because of the known legal import of the words employed, and also because of the apparent intention that the estate should go over to Richard Jordan and his heirs male upon failure of the issue male of William Jordan, and not until such failure. The language, perhaps, of Vice-Chancellor Shadwell's judgment in North v. Martin, 6 Sim. 266, 270, justifies us in thus controlling the words "heirs male of the body," by the interpretative words "their father." But the decision in itself cannot properly be said to govern the present, because in that case words of inheritance were superadded to the words "heirs of the body," which are not to be found in this. In truth, that gives rise to the difficulty which has mainly caused the hesitation I feel in concurring with the rest of the Court.

Judgment for the defendant. (a)

(a) An appeal is pending.

Where, after a devise to one for life, there is a limitation of the estate to his heirs or the heirs of his body, coupled with other expressions, which show clearly that the testator used these words as words of designation of persons who were to take as a new stock of inheritance, as, for instance, where from the context it is plain that he used them by mistake for, or as equivalent to "children," "sons," or the like, this has generally been considered as an exception to the rule in Shelley's Case. See Rogers v. Rogers, 3 Wend. 503. The operation of this exception has, however, of late years been much restricted. Thus, it was at one tine held, that words importing a division or distribution among the heirs, being inconsistent with the common law course

of descent, as where the limitation was to the heirs, or issue of the first taker, as "tenants in common," or "share and share alike," would fall within the exception: Doe v. Laming, 2 Burrows 1100; Doe v. Goff, 13 East 668; Findlay's Lessee v. Riddle, 3 Binn. 139; Neburger v. Upp, 13 Serg. & R. 65; Stump v. Findlay, 2 Rawle 160. But, it is now definitely settled in England, at least, that no force is to be given to such expressions standing alone, so as to control the technical effect of the words heirs or heirs of the body: Jesson v. Wright, 2 Bligh 16. See Sisson v. Matthews, 1 Sumn. 251; Kingsland v. Rapelye, 3 Edw. Ch. 1. That mere superadded words of limitation, as where the limitation over is to the heirs or heirs of the body of the

first taker, and to their heirs and assigns, will not produce that effect, may now be taken as clear: Carter v. McMichael, 10 Serg. & R. 429; Paxson v. Lefferts, 3 Rawle 59; Hileman

v. Bonslaugh, 13 Penn. St. 344;
George v. Morgan, 16 Penn. St. 105;
Kingsland v. Rapelye, 3 Edw. Ch. 1;
Wright v. Thayer, 1 Gray 284.

*766]

*LEVI v. LEWIS. June 15.

A. let premises to B. for a term which expired at Lady Day, 1858. B. had underlet to C. for the whole of his term. The term having expired, C. applied to A. to accept him as his tenant for a further term, which A. refused to do, saying that B. was his tenant. C. continued in possession till after Michaelmas, 1858, when B. sued him for the half-year's rent, and afterwards paid A. (who received the same) the rent which would have become due from him (B.) to A., assuming his tenancy to be still subsisting:-Held, that the action was maintainable.

THIS was an action for use and occupation of premises in Fetter Lane. The plaintiff claimed a half-year's rent from the 25th of March to the 29th of September, 1858. The defendant pleaded never indebted, whereupon issue was joined.

The facts which appeared in evidence at the trial before Willes, J., at the sittings in Middlesex after last Michaelmas Term, were as follows:One John Knight, the superior landlord of the premises in question, had let them to the plaintiff, Levi, for a term which expired at Lady-Day, 1858. Levi had underlet the premises to the defendant, Lewis, for the whole of his term. The term for which the premises had been so let by Knight to Levi, and by Levi to Lewis, having expired, Lewis, the undertenant, applied to Knight to accept him as his tenant for a further term; but Knight declined to do so, referring to Levi as being still his tenant. Lewis continued to occupy the premises; and, a half-year's rent becoming due at Michaelmas, 1858, Levi brought this action for use and occupation. After the commencement of the action Levi paid to Knight, and the latter accepted, the half-year's rent which would have become due from Levi to Knight, assuming that there was a tenancy subsisting between them.

On the part of the defendant it was submitted that there was no evidence to go to the jury of a use and occupation of the premises by Lewis as tenant to Levi; and the learned judge, being of this opinion, directed a nonsuit.

H. James, in Easter Term last, obtained a rule nisi for a new trial, on the ground of misdirection.

*Huddleston, Q. C., and G. Francis, on a subsequent day, *767] showed cause.-There was no evidence to support the plaintiff's claim. To entitle him to sue for use and occupation, he was bound to show the subsistence of a contract of tenancy, express or implied, between himself and the defendant. Express contract there was none; for, his term had expired: and no contract can be implied from the circumstance of the defendant contiv uing to occupy the premises. [COCKBURN, C. J.— In what character did he so continue to occupy?] As tenant on sufferance. [COCKBURN, C. J.-To whom?] To Knight. [COCKBURN, C. J.— The evidence is that Knight repudiated him, and treated Levi as his continuing tenant, and afterwards received the half-year's rent from