estate, bequeathed upon a contingency too remote, was held to pass under them to the residuary legatee.

There is not any distinction as to this effect of the residuary bequest between specific and general legacies. And where a man by his will" gave and bequeathed all the rest and residue of his real and personal estate, whatsoever, and wheresoever, and of what nature or kind soever the same might consist of, not therein before specifically disposed of, the general devise was held to comprehend specific legacies lapsed, upon the ground that the word specifically ought to be construed particularly.' The Master of the Rolls being of opinion clearly, that the testator was not to be interpreted as meaning to die intestate with regard to all sums specifically bequeathed, and testate with regard to all pecuniary legacies.

But if a devise of real estate becomes ineffectual from lapse, it is considered by the law as undisposed of; and, having been separated from the residue at the time that the will had an incipient operation, in the nature of a conveyance, it cannot be brought again into it by a subsequent event. And where a testator manifests his intention to make a particular disposition of a real estate, and such disposition is void in law, still it will not pass inclusively in the residue, unless under special circumstances overruling the inference of intention to separate it from the residue. Thus in a case" where the testatrix, having four sisters, devised par, ticular estates to them, with remainder to her own

right heirs, and afterwards gave the residue, in a general residuary clause, to one of the sisters, and died, having no other real estate; upon one of the particular estates determining, it was held that the reversion did not pass by the residuary clause; for though the devise might not operate to make the heir take by purchase, (10) yet it was in the nature of an exception out of the residuary clause, which determination was approved by Lord Northington and confirmed by the Court of K. B. in Smith d. Davis v. Saunders °.

2 Blackst. 736.

Of the devise to the

heir-when

he takes by

the willwhen by descent.

:

(10) Where the same estate is devised to the heir in quantity and quality, as he would have taken by descent if there had been no devise, the devise is void, and the heir will take by descent. But where by the devise a different estate is given from that which the law would give, the will prevails; as where a man devises to A. and B., his daughters and co-heirs, in fee for instead of an estate in coparcenary, they take as joint-tenants, with survivorship. So, if the devise be to them, as tenants in common. And if a man devise to one of several co-heirs of himself; in as much as one co-heir cannot take without the others by descent, the whole shall pass by the devise. If a devise be to the heir and another in fee, the heir takes by purchase, for he takes subject to survivorship in a stranger. But if a testator devise to his heir and another, as tenants in common, it seems that the devise to the heir, as to his moiety, is void, for he takes the part devised to him just in the same manner, as if it had been left to descend to him. And, where lands are subjected to a charge by a will, with a devise to the heir in fee, it seems that the heir will still take by his title of descent, and not by purchase; and that if it is subjected to a temporary right of possession in another, until the heir pays a sum of money, and then is devised to the heir in fee, still the heir takes according to his better title, i. e. by descent. See Fearne's posthumous Works, 226. 229. and see Reading v. Rawstorne, 2 Lord Raym. 4th Ed. 829.

SECTION V.

By what words an Estate tail passes.

IN conformity with the principle of giving effect to the intention, an estate tail, as well as an estate in fee, may be created in a will by expressions, be they ever so informal, that manifest the meaning of the testator. To discuss the varieties into which the cases in the books have expanded the doctrine, would require volumes of learned labour; the reader can expect only the general heads of this multifarious subject to be treated of in this place.

words of

are to be

An inheritance in tail general, is properly created The formal in a deed where lands or tenements are given to a limitation whereby man, and his heirs of his body begotten. And this estates tail estate, according to Littleton, " is called general tail, created. because whatsoever woman such tenant in tail taketh for wife, (if he hath many wives, and by every of them hath issue,) yet every one of these issues, by possibility, may inherit the tenements by force of the gift; because every of such issue is of his body engendered."

"In the same manner it is," says the same author, "where lands or tenements are given to the woman, and to the heirs of her body; albeit that she hath divers husbands, yet the issue which she may have by

Sect. 14, 15.

Of the ne

cessary

deed to

create an estate tail.

every husband may inherit as issue in tail by force of this gift, and therefore such gifts are called general tails."

He then defines the tenancy in tail special to be, "where lands or tenements are given to a man and his wife, and to the heirs of their two bodies begotten; in which case, none shall inherit by force of this gift, but those that be engendered between these two. And it is called special tail, because, if the wife die, and he taketh another wife, and have issue, the issue of the second wife shall not inherit by force of this gift, nor the issue of the second husband if the first husband die."

These estates tail, whether general or special, are words in a not, in general, to be created by a gift inter vivos, without the words of limitation used by Littleton, as above stated; for every estate tail was a fee-simple at common law, and at common law, no fee-simple could be conveyed by feoffment or grant without the word heirs; and to the word heirs must be added words to express from whose body the heirs intended are to spring (1).

(1) Yet, says Lord Coke, if a man give lands to A. et hæredibus de corpore suo, the remainder to B. in formâ prædictâ, this is a good estate tail to B., for, in formâ prædictâ do include the other. If a man letteth lands to A. for life, the remainder to B. in tail, the remainder to C. in formâ prædictà; this remainder is void for the uncertainty. But if the remainder had been to C. in eâdem formâ, this had been a good estate tail, for idem semper proximo antecedenti refertur.

The words of his body' are not so strictly required, even in a deed, but that they may be expressed by others which are tantamount; for the example which the statute de donis puts, has not the words de corpore. The words are these-cum aliquis dat ter

Therefore, if a man by deed give lands or tenements to A. and to his seed, or to the issues, or children, of his body, or to the issues of his body lawfully be

ram suam alicui viro et ejus uxori et hæredibus de ipsis viro et muliere procreatis. Therefore, if lands be given to B. et hæredibus quos idem B. de prima uxore sua legitime procrearet, this is a good estate in especial tail, (although he hath no wife at the time,) without the words de corpore. So it is if lands be given to a man, and to his heirs which he shall beget of his wife, or to a man et hæredibus de carne sua, or to a man et hæredibus de se. In all these cases, these are good estates tail, and yet the words de corpore are omitted.

The word begotten may in many cases be omitted in a deed; and though Littleton says, ingendered, or begotten, yet if the words be, to be begotten,' or, whom he shall have begotten,' the estate tail is good; and, as procreatis shall extend to the issues begotten afterwards, so procreandis shall extend to the issues begotten before. Co. Litt. 20. b.

Where the premises provided they have

If lands be limited by deed to the use of J. S. et hæredum masculorum suorum legitime procreatorum, remainder over, it is a feesimple; but if it be hæredum masculorum de se, or in Euglish, the heirs of him lawfully begotten, especially where there is a remainder over, it is tail. Bedell's case, 7 Rep. 41. in a deed come short of the full description, the word 'heirs,' the habendum may supply what is wanting to make the estate tail; as if lands be given to B. and his heirs, to have and to hold to him and the heirs of his body, or if lands be given to B. and his heirs, to hold to B. and his heirs if B. have heirs of his body, but if he shall die without heirs of his body, that they shall revert to the donor; thus has been adjudged an estate tail. See Co. Litt. 21. a. and the note by Mr. Hargrave, 124.

It seems that a limitation in a deed to a man and to the heir of his body in the singular number, gives him an estate tail. See Co. Litt. 22. a. and Richards v. Lady Bergavenny, 2 Vern. 235, And, according to many authorities, heir may be nomen collectivum as well in a deed as a will, and operate in both in the same manner as heirs in the plural number; for which see the several authorities referred to by Mr. Hargrave, in note to Co. Litt. 8. b.