Acknow

ledgment

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.

The appointment or acknowledgment of a person as of a person heir, though he may not be the real heir, is sufficient to 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.

as heir.

Devise to the heir of

A devise to the right heirs male, or to the right heirs of a particu- 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.

Heirs of the body.

Whether

the heir

male tak ing by purchase must trace his descent through males.

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.

The rule does not, however, apply to heirs of the body, whether taking by descent or purchase. Wells 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 entirely through males. Co. Lit. 25a.

It is said by Jarman, ii. p. 61, that this does not apply to a gift to the heir male or female by purchase, citing Hob. 31; Co. Lit. 25b. At any rate it is clear that if the

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.

parte

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

In what cases heirs

means

children.

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. 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 v. Blake, supra; Ashenhurst's Case, Hob. 34; Baker v. Wall, 1 Ld. Raym. 185; Doe d. Lindsey v. Colyear, 11 East, 548.

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 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.

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.

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 II. & M. 411. See post, p. 286.

BEQUESTS OF PERSONALTY TO HEIRS.

1. A bequest of personalty to the right heirs, or to the Bequests of heirs at law, or the next heir of an individual, prima facie to heirs. personalty goes to 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. & Sm. 228; Southgate v. Clinch, 27 L. J. Ch. 651; 4 Jur. N. S. 428.

The rule applies, à fortiori, to a mixed fund. De Beauvoir v. De Beauvoir, 3 H. L. 524; Boydell v. Golightly, 14 Sim. 327; Todhunter v. Thompson, 26 W. R. 883.

remainder

2. In the same way, if the gift is to A. for life with A. for life, remainder to his heirs, the heir, in the strict sense, is to heirs, entitled. In bonis Dixon, 4 P. D. 81; Smith v. Butcher, 10 Ch. D. 113; disapproving Mounsey v. Blamire, 4 Russ. 384. The cases of Evans v. Salt, 6 B. 266; Low v. Smith, 25 L. J. Ch. 503; 2 Jur. N. S. 344; Re Peppitt's Estate; Chester v. Phillips, 36 L. T. N. S. 500, must be considered overruled, unless they can be supported on the special context in each case.

means next

3. But the word heirs may be controlled by the context, In what as in Gamboa's Trust, 4 K. & J. 757, where a bequest to cases heirs "the heirs of my late partner for losses sustained during of kin, the time that the business of the house was under my sole. control," went to the next of kin under the Statute;

RI

Gift of psuolty to FHD & RF share & share alike & at the dece of 1 JH J FRP 16 their choren share & share alike and then hirs F# I died with issue

ever

the death of R F. Held upon. the propt was divisie in moieties betw the chren of o pry 5. rebres of FHS. Hutchinsons bust 1803.

Substitu

tional gift to heirs.

and in In re Newton's Trusts, 4 Eq. 171, where the
bequest to "the heirs and assigns of my deceased sister"
was shown to be quasi substitutional by other limita-
tions to the testator's living brothers and sisters and their
heirs and assigns; and see In re Steevens' Trusts, 15 Eq.
110, as to which case quære.

Where the intention is to give A. the absolute interest,
the word heirs has been held equivalent to executors and
administrators. Powell v. Boggis, 35 B. 535, where the gift
was to A. for life, then to her heirs as she shall give it by
will, and if she dies without a will to her right heirs,

And, where the testator directs a division amongst the several heirs of tenants for life, who are related to each other, so that heirs cannot mean next of kin, heirs will mean children. Bull v. Comberbach, 25 B. 540; see Roberts v. Edwards, 33 B. 259.

4. In a gift to A. or his heirs, heirs means the persons entitled under the statute. Vaux v. Henderson, 1 J. & W. 388; Gittings v. M'Dermott, 2 M. & K. 69; Jacobs v. Jacobs, 16 B. 557; Doody v. Higgins, 9 Ha. App. 32; 2 K. & J. 729; In re Craven, 23 B. 333; Powell v. Boggis, 35 B. 535; Parsons v. Parsons, 8 Eq. 260; Neilson v. Monro, 27 W. R. 936.

If real and personal estate are given together to persons or their heirs, but the realty is not converted, the realty goes to the heir and the personalty to the statutory next of kin. Wingfield v. Wingfield, 9 Ch. D. 658. Heay & Boulton's In a bequest to children or their heirs, followed by a gift over, if all the children die without issue the word heirs has been held to mean issue. Speakman v. Speakman, 8 Ha. 180; and see Roberts v. Edwards, 12 W. R. 33. Heirs of In a bequest to A. or the heirs of his body, heirs of the the body. body means such of the persons entitled under the statute as may be descendants of A. Pattenden v. Hobson, 17 Jur. 406; 22 L. J. Ch. 697.