What is an inconsis

of descent.

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.

In the absence of authority it is doubtful, what amount tent course of discrepancy between the two courses of descent, will 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.

The testator may

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.

the sense

in which

he has

used the word heirs.

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."

of

the words

than one

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 the body, children. Roddy v. Fitzgerald, 6 H. L. 823; such Jesson v. Wright, 2 Bl. 1.

child, to

child."

the words

than one such

And even if the words are, if there be but one such child, Effect of 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 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 interpretaother sons, etc." Lowe v. Davies, 2 Ld. Raym. 1561.

tion clause.

Or again, the testator may explain his meaning by Interpretation 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.

to father.

And the word heirs of the body, coupled with a refer- Reference ence to the ancestor, as their father, must mean children. Jordan v. Adams, 9 C. B. N. S. 483.

First heirs male.

Limitation to the heir of the

B. The application of the rule in Shelley's Case is the 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.

C. When the word heir is used in the singular, 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.

Words of limitation

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. 2. But words of limitation in fee or in tail, superadded super- to the word heir, make it a word of purchase. Archer's 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.

added to

heir.

The rule

in Shel

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.

D. The application of the rule in Shelley's Case, where

ley's Case the limitation is to the issue of the ancestor, who takes

is to the

a tenant

"The authorities clearly show that, whatever be the limitation prima facie meaning of the word issue, it will yield to issue of the intention of the testator to be collected from the will, for life. and that it requires a less demonstrative context to show Distinesuch intention than the technical expression heirs of tween the the body would do." Per Alderson, B., Lees v. Mosley, and heirs. 1 Y. & C. Ex. 609.

This doctrine was questioned by Lord Wensleydale in Roddy v. Fitzgerald, 6 H. L. 882-"I certainly feel a difficulty in figuring to myself, what precise sort of context would be sufficient to alter the sense of the word issue, which would not have the same effect, if the words used were the admitted technical words, heirs of the body." There can, however, be no doubt that words of modification will more readily convert the word issue than the word heirs into a word of purchase, and the remark of Lord Wensleydale must be held to apply to cases where other words have interpreted the word issue to mean children. Thus:

tion be

word issue

the Words of the tion alone

distribu

Doe Super

added in

v. cases be

1. Words of distribution alone, superadded to word issue, in cases where the issue would not take inheritance, will not make it a word of purchase. d. Blandford v. Applin, 4 T. R. 82; Doe d. Cock Cooper, 1 East, 229; Roddy v. Fitzgerald, 6 H. L. 823; Wills Act. Colclough v. Colclough, I. R. 4 Eq. 263; Woodhouse v. Herrick, 1 K. & J. 352; Blackhall v. Gibson, 2 L. R. Ir. 49.

This is clear, when there is a gift over upon an indefinite failure of issue; but it seems, that a gift over is immaterial, since, under the old law, the issue, if they took as purchasers, could only take for life, and therefore the testator's general intent to benefit all the issue would fail See per Wood, V.-C., in Kavanagh v. Morland, Kay, 16, 27, where the same construction prevailed, although the gift over was in default of issue

fore the

Words of limitation

superadded.

Effect of the absence of

a gift over

of issue.

of the tenant for life living at his death; and this is in accordance with Doe v. Rucastle, 8 C. B. 876.

2. Words of limitation in fee or in tail, superadded to the word issue, where there is a limitation in default of issue in cases before the Wills Act, will not make it a word of purchase, provided they do not change the course of descent. Roe d. Dodson v. Grew, 2 Wils. 324; Wilm. 272; Denn d. Webb v. Puckey, 5 T. R. 299; Frank v. Stovin, 3 East, 548; Griffiths v. Evan, 5 B. 241.

The same rule applies where the gift over is on failure of issue living at the death of the person, to whom the prior estate is limited, or on death of the issue under twenty-one. Warren v. Travers, I. R. 2 Eq. 455; see Fetherston v. Fetherston, 3 Cl. & F. 67; 9 Bl. 237. Merest v. James, 1 B. & B. 484; 4 J. B. Moo. 327, must be considered overruled.

Whether the absence of a gift over in default of issue will convert issue into a word of purchase seems in default doubtful. In Doe d. Cooper v. Collis, 4 T. R. 294, a devise to S. for life, and after her decease to the issue of her body and their heirs for ever, without any limitation in default of issue, was held to give S. an estate for life only; but the judgment was not based upon the absence of a limitation over in default of issue, and the authority of the case seems questionable. On the whole it seems, that when the fee is already in the issue, the gift over can have no influence either way, the dying without issue being held to refer to such issue as were before mentioned. See the remarks of Wood, V.-C., Kay, 16, 27; and see Montgomery v. Montgomery, 3 J. & Lat. 47.

Words of

3. If, however, the superadded words of limitation alter the course of descent, the issue will take as purchasers. Hamilton v. West, 10 Ir. Eq. 75; Dodds v. Dodds, 10 Ir. Ch. 476; 11 ib. 374, ante, p. 340.

4. Words of limitation in fee or in tail, and of distri