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Whether a When family is construed children, a simple gift to the gift to several

families of A. and B. goes per capita in joint tenancy. families

Gregory v. Smith, 9 Ha. 708. goes per capita or

So, too, a gift to be divided between the families of per stirpes among A. and B. goes to all the children of A. and B. per capita them.

as tenants in common. Barnes v. Patch, 8 Ves. 604; see, however, Alexander v. Douglas, Rom. Notes of Cases,

93. Friends. Under a direction that after the death of the testator's

wife, to 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.

269

CHAPTER XXV.

GIFTS TO HEIRS, NEXT OF KIN, REPRESENTATIVES,

AND EXECUTORS.

WHERE Borough English or gavelkind lands are devised Devise of

Borough with other lands to the testator's heir, the common law English heir is entitled. Davis v. Kirk, 2 K. & J. 391; Thorp v. kinds to

and Gavel Owen, 2 Sm. & G. 90; Buchanan v. Harrison, 1 J. & H. the heir. 662; Sladen v. Sladen, 2 J. & H. 369.

So where Borough English lands alone are devised to a person 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 In what a devise to the heirs of a living person is contingent, unless word heir the term heirs is so qualified by express words or by the refers to a

persona de general intention of the will as to show that the testator signata. 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.

cases the

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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. Wms. 229 ; 3 B. P. C. 60; Goodright 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. Acknow The appointment or acknowledgment of a person as ledgment of a person

heir, though he may not be the real heir, is sufficient to as heir.

carry to him the testator's real estate. Parker v. Nickson,

1 D. J. & S. 177; 11 W. R. 533; 32 L. J. Ch. 397. Devise to A devise to the right heirs male, or to the right heirs of the heir of a parti

a particular name, will go only to the very heir, who must lar name or be a male or of that name.

Ashenhurst's Case, Hob. 34; to heirs male. 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. Heirs of The rule does not, however, apply to heirs of the body, the body.

whether taking by descent or purchase. Wells v. Palmer, 5 Burr. 2617; 2 W. Bl. 687; Evans d. Weston v. Burten

shaw, Co. Lit. 164a, n. (2). Whether An heir male taking by inheritance must trace his the heir male tak. descent entirely through males. Co. Lit. 25a. ing by purchase must

It said by Jarman, ii. p. 61, that this does not apply trace his

to a gift to the heir male or female by purchase, citing descent through Hob. 31 ; Co. Lit. 25b. At any rate it is clear that if the males.

a

word lineal be 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, 3 Q. B. 328; Thellusson v. Rendlesham, 7 H. L. 429.

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 Heir ex who is also heir ex parte paternâ may take. Rawlinson materna.

, v. Wass, 9 Ha. 673; In re Willomier's Trusts, 16 Ir. Ch. 389.

RULE IN MANDEVILLE'S CASE, Co. LIT. 26B.;

FEARNE, 80.

Mande

"Where an estate is limited to the heirs special of a Rule in particular ancestor, without any estate of freehold limited ville's case. 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. 26 b.

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. Helilon, 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 v. Blake, supra; Ashenhurst's Case, Hob. 34; Baker v. Wall, 1 Ld. Raym. 185; Doe d.

Lindsey v. Colyear, 11 East, 548. In what Heirs of the body, however, used as a term of purchase, of the body may mean children if the devise is to them as their children. parent shall appoint, or if they are to take equally among

them as tenants 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.

cases heirs

Assigns.

ASSIGNS. As a rule the words “and assigns,” following the word heirs, 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. 141; 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.

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