« SebelumnyaLanjutkan »
S. & St. 409; Measure v. Gee, 5 B. & Ald. 910; Nash v. Coates, 3 B. & Ad. 839 (a); Minshull v. Minshull, 1 Atk. 411 (6); Douglas v. Congreve, 1 B. 59 (c); Legatt v. Sewell, 1 Eq. Abr. 395, p. 7; 1 P. Wms. 37; see Fearne, 159, 160;
see Fetherston v. Fetherston, 3 Cl. & F. 67; 9 Bl. 237 (d). Words of 3. Words of distribution following the limitation of the distribution super. inheritance will not prevent the application of the rule, added.
“ for it does not follow that the testator did not intend that heirs of the body should take because they could not take in the mode prescribed.”
Thus a declaration that the heirs are to take as tenants in common, and not as joint tenants (a); or equally among them, share and share alike (b); or in such shares and proportions as the ancestor should appoint (C); or “as well male as female," or “whether sons or daughters” as tenants in common (d), will not prevent the operation of the rule. Doe d. Candler v. Smith, 7 T. R. 531; Bennett v. Earl of Tankerville, 19 Ves. 170 (a); Doe d. Atkinson v. Featherstone, 1 B. & Ad. 944 (6); Jesson v. Wright, 2 Bl. 1; see Roddy v. Fitzgerald, 6 H. L. 823; Dunk v. Fenner, 2 R. & M. 557 (c); Doe d. Bosnall v. Harvey, 4 B. & C. 610;
Pierson v. Vickers, 5 East, 548 (d). Garel- In such a case it makes no difference that the lands are kind lands.
gavelkind. Doe d. Bosnall v. Harvey, supra, overruling Doe v. Laming, 2 Burr. 1100.
The absence of a gift over in default of issue is imma
terial. Doe d. Atkinson v. Featherstone, 1 B. & Ad. 944. Words of 4. Nor will words of distribution and limitation together, distribution and superadded to the limitation of the inheritance, prevent limitation
the operation of the rule.
It has sometimes been laid down that words of distribution and limitation together, superadded to the heirs, would make the latter a word of purchase, but the rule is now clearly settled, overruling Gretton v. Haward, 6 Taunt. 94; 2 Marsh. 9, and Crump d. Woolley v. Norwood, 7 Taunt.
362; 2 Marsh. 161; see Anderson v. Anderson, 30 Beav. 209; Mills v. Seward, 1 J. & H. 733; Grimson v. Downing, 4 Dr. 125; and see Jordon v. Adams, 9 C. B. N. S. 483.
Lord Chief Justice Cockburn, in the last cited case, p. 497, thus sums up the law with reference to the extent of the application of the rule in Shelley's Case, where the words heirs or heirs of the body are used: “No incident, superadded to the estate for life, however clearly showing that an estate for life merely, and not an estate of inheritance, was intended to be given to the first donee, nor any modification of the estate given to the heirs, however plainly inconsistent with an estate of inheritance, nor any declaration, however express or emphatic, of the devisor, can be allowed, either by inference or by force of express direction, to qualify or abridge the estate in fee or in tail, as the case may be, into which, upon a gift to a man for life, with remainder to his heirs or the heirs of his body, the law inexorably converts the entire devise in favour of the ancestor."
The words heirs or heirs of the body will, however, be construed as words of purchase :
1. When words of limitation are superadded to them Words of inconsistent with the nature of the descent pointed out by superthe first words, as where the limitation is to a man for life, consistent and after his decease to the use of his heirs and the heirs with the female of their bodies. Fearne, C. R. 182; Shelley's Case, descent of 1 Rep. fol. 88, 95 b.
There appears to be no other authority for this rule than ancestor. the argument of counsel in Shelley's Case, cited with approbation by Fearne, C. R., p. 182. It has, however, been followed in a case where the word issue and not heir was used. See Hamilton v. West, 10 Ir. Eq. 75. In that case the devise was to Margaret for life, remainder to her issue female and the heirs of their bodies; and it was held that
an estate tail in the
Margaret took only a life estate, with remainder to her daughters in tail general, and there seems no reason for supposing, that the same principle would not be applied, where the word heirs instead of issue is used. See Dodds
v. Dodds, 10 Ir. Ch. 476; 11 ib. 374. What is an In the absence of authority it is doubtful, what amount inconsistent course of discrepancy between the two courses of descent, will of descent. justify the application of this rule. Fearne, C. R., p. 183,
points out that “there does not appear to be the same inconsistency in construing the first words, which describe heirs special, to be words of limitation, where the superadded words extend to heirs general, as there is where the first words, and those engrafted on them, distinguish two different incompatible courses of descent, and would not carry the estate to the same person ; in the latter case it is absolutely impossible, by any implied qualification, to reconcile the superadded words to those preceding them, so as to satisfy both by construing the first as words of limitation; whereas, in the former case, the superadded words are not contrary to or incompatible with the preceding, but in their general sense include them; and there is no improbability in the supposition that they were used by the testator in the same qualified sense as the preceding; and then both may be satisfied, by taking the first as words of limitation.” In Hamilton v. West, however, the question was between an estate in tail female in the ancestor and an estate in tail general to the daughters, the latter of which would, “ in their general sense,” have included the former; and it seems, therefore, that Fearne's remark must be taken with some modification.
2. Where the testator has, either by express words, or interpret by implication, interpreted the meaning he intended to
convey by the term heirs or heirs of the body, those words may be words of purchase.
In Fetherston v. Fetherston, 3 Cl. & F. 67, Lord Brougham lays down, “If there is a gift to A. and the heirs of his body, and then in continuation, the testator, referring to what he had said, plainly tells us that he used the word heirs of the body to denote A.'s first or other sons, then clearly the first taker would only take a life estate."
However, the mere insertion of such words as, if more Effect of than one child, or, if only one child, then to such child, is “ if more not sufficient to show that the testator meant by heirs of
child, to the body, children. Roddy v. Fitzgerald, 6 H. L. 823;
child." Jesson v. Wright, 2 Bl. 1. And even if the words are, if there be but one such child, Effect of
the words to such child, his or her heirs for ever, the term heirs of " if more the body will not be held to mean children, if there are than one no words to carry the fee to them, except in the event of child,” &c. there being only one child. Bridge v. Chapman, Notes of Cases, L. J., July 10, 1875, 118; see Ryan v. Cowley, Ll. & G. temp. Sug. 7.
But in similar cases heirs of the body will be construed as children, if there are words giving them an estate in fee or in tail. Goodtitle d. Sweet v. Herring. 1 East, 264; Gummoe v. Howes, 23 B. 184. In Poole v. Poole, 3 B. & P. 620, this construction was rebutted by other limitations.
So, if the testator, after using the words heirs of the Express body, continues, "that is to say, the first, second, and
tion clause. other sons, etc.” Lowe v. Davies, 2 Ld. Raym. 1561. Or again, the testator may explain his meaning by Interpre
tation by reference to other limitations. Meredith v. Meredith, 10 reference. East, 503; Doe d. Woodall v. Woodall, 3 C. B. 349; East v. Twyford, 4 H. L. 517. And the word heirs of the body, coupled with a refer- Reference
to father. ence to the ancestor, as their father, must mean children. Jordan v. Adams, 9 C. B. N. S. 483.
First heirs B. The application of the rule in Shelley's Case is the male.
same, where the words are first heirs male or heirs of the body who shall attain twenty-one. Minshull v. Minshull,
1 Atk. 4 11; Toller v. Attwood, 15 Q. B. 929. Limitation C. When the word heir is used in the singular, the to the heir of the
rules of law are less stringent in uniting the limitation tenant for of the inheritance to the estate for life of the ancestor. life.
1. However, the word heir, in the singular, without words of limitation superadded, is a word of limitation and not of purchase, even when such words as “next” or “ first” are added to it. Blackburn v. Stables, 2 V. & B. 367; Burley's case, cit. 1 Vent. 230; Whiting v. Wilkins, 1 Bulst. 219; Richards v. Lady Bergavenny, 2 Vern. 324 ; White v. Collins, Com. Rep. 289; Dubber d. Trollope v. Trollope, Ambl. 453.
The fact that the limitation is to the heir for ever
makes no difference. Fuller v. Chamier, L. R. 2 Eq. 682. Words of
2. But words of limitation in fee or in tail, superadded limitation super- to the word heir, make it a word of purchase. Archer's added to the word case, 1 Co. 66 ; Fearne, C. R. 150; Clerke v. Day, Moore,
593; Willis v. Hiscox, 4 M. & Cr. 197 ; Greaves v. Simpson, 12 W. R. 773; 10 Jur. N. S. 609.
And even a devise to A. to hold to him and the heir male of his body, and the heirs and assigns of such heir male for ever, followed by a gift over, if A. died without leaving any son of his body, has been held to give A. a life estate only. Chamberlayne v. Chamberlayne, 6 E. & B. 625.
3. Where the estate of the heir is expressed to be for life, inasmuch as he is not to have the inheritance, he cannot take as heir by descent. White v. Collins, Com.
289. The rule D. The application of the rule in Shelley's Case, where in Shel. ley's Case the limitation is to the issue of the ancestor, who takes applies where the a prior estate of freehold :