Venables v. Morris, 7 T. R. 342; Tippin v. Coson, or Cosin, 4 Mod. 380; S. C. Carth. 272; Ireson v. Pearman, 3 B. & C. 799.

Words added to limitation to ancestor.- The Rule applies even if words are added to the limitation to the ancestor, clearly showing that his estate is not intended to continue after his death; see the cases (all on wills) collected, Theobald on Wills (2nd ed.) p. 336.

Limitation to heirs followed by words of distribution.—It applies if words of distribution are added to the limitation to the heirs, as "share and share alike;" see the cases (all on wills) in Theobald on Wills (2nd ed.) p. 338.

Words of limitation.- Words of limitation added to the limita tion to the heirs do not prevent the application of the rule; see this discussed, Hawkins on Wills, 185; see the cases on wills collected, Theobald on Wills (2nd ed.) p. 337. Tud. L. C. R. P. 608. Where in a marriage settlement the limitations were to the husband for life, remainder to the wife for life, remainder [*245] to the "heirs of the body of the wife and their

heirs

and assigns for ever," it was held that the wife took an

estate tail; Alpass v. Watkins, 8 T. R. 516.

Of both distribution and limitation.—The rule applies if words both of distribution and of limitation are added to the limitation to the heirs; see Theobald on Wills (2nd ed.) p. 338. See the question discussed what words of explanation added to the word "heirs " will render the heirs purchasers; Hawkins on Wills, 186: Theobald on Wills (2nd ed.), p. 340.

Deeds and wills.-In Re White and Hindle's Contract, 7 Ch. D. 201, Malins, V.-C., held that there is no difference between deeds and wills as to the application of the rule in Shelley's Case.

Executory or conditional limitation to the heirs.-It is said that the rule does not apply where the limitation to the heirs is not by way of remainder, but is by way of executory or conditional limitation of a future use: but see Re White and Hindle's Contract, ubi sup.

Remainder contingent.—The rule applies though the remainder be contingent; Co. Lit. 3786; 1 Prest. Est. 316.

Conditional and determinable fees, &c.

Conditional fees.--The many questions that occur on conditional fees will be found discussed in Co. Litt. 201a to 237, "Estates upon condition." As to the meaning of "condition," see 2 Fearne, C. R. 3.

Determinable fees (1) under the statute of uses.-The cases on the construction of fees made determinable by shifting clauses taking effect under the Statute of Uses, are discussed in Co. Litt. 327a, note; 3 Dav. Prec. 349, et seq.

(2) At common law. --The question whether a fee can be made determinable at common law is discussed in Sanders on Uses, 208, in Pollock on the Land Laws, 213, and in the treatise by Mr. Challis, prefixed to Hood and Challis on the Conveyancing Acts, 2nd edit. p. 48, et seq; Challis on Real Property, Ch. XVII., pp. 197, sqq. See also Tud. L. C. R. P. (3rd edit), 744.

Limitation to A. "and his heirs" for years.-It should perhaps be observed that a limitation at common law, "to A. and his heirs for a term of years," confers a chattel interest only, which passes to his executors or administrators on his death: Co. Litt. 388a, 62b;* Shep. Touch. 271, 469; 1 [* 246] Prest. Est. 31 et seq. See also Anon., Godb. 42, pl 48.

Estate pur autre vie.-The effect of a limitation to A. and his heirs during the life of B., is not that A. takes a determinable fee simple, but that if A. dies without having disposed of his estate pur autre vie, his heir takes it as special occupant and not by descent; Atkinson v. Baker, 4 T. R. 229; Doe v. Luxton, 6 T. R. 292; See Tud. L. C. R. P. (3rd edit.), pp. 50, et seq.

As to a quasi estate tail pur autre vie, see Tud. L. C. R. P. 53, 54; and Williams on Seisin, 166. Re Barber's Settled Estates, 18 Ch. D. 624.

In connection with the subject of determinable fees the following remarks may be made:

First, Estate gained by entry under power.-- Where a rentcharge, with power of entry, is secured to A. and his heirs, A. gains by entry no estate of freehold, but merely an interest by the agreement of the parties to take the profits in the nature of a distress; Co. Litt. 203a. And this interest passes to the executors of the person who enters: see note, loc. cit. and the cases there cited; see also Jemmot v. Cooly, 1 Lev. 170; S. C. T. Ray. 135, 158.

Secondly, Lease till a certain sum be paid.-If a lease be made of land to A., without words of limitation, till a certain sum be paid, "in this case, because the annual profits are uncertain, he hath an estate for life, if livery be made, determinable upon the levying of " the sum; Co. Litt. 42a; see Manning's Case, 8 Rep. 94b. But, formerly, it was but an estate at will without feoffment, for it is not certain that the land shall be every year of the same annual value. See the Bishop of Bath's Case, 6 Rep. at p. 36a. On the other hand—

Thirdly, Grant of rent till certain sum be paid.—“If a man grant a rent of £20 per annum till £100 be paid, there he hath an estate for five years, for there it is certain and depends upon no uncertainty;" Co. Litt. 42a.

17 INTERPRETATION OF DEEDS.

257

[* 247]

* CHAPTER XVI.

DEATH WITHOUT ISSUE.

Death without issue: Gift over on death before the happening of a certain event, "or" without issue: Limitation to A. and his heirs, or to A. for life, followed by a gift over on death "without issue," or, "without heirs of his body": Gift over "in default of such issue," or "without leaving issue": Limitation to children with gift over in default of such issue.

Rule 82.-"Death without issue."-The words "die without issue," are construed to mean the death of the propositus, and the failure of his issue at any time either before, at, or after his death.

The rule applies where the words are

"without issue male."

Examples.--Limitation of a term to raise portions, "if A. should die without issue male; " A. died leaving a son and daughters, then the son died without issue male: Held that the limitation on "the death of A., without issue male" thereupon took effect; Goodwin v. Clark, 1 Lev. 35: S. C. sub nom. Goodiar v. Clarke, 1 Sid. 102, where the words are said to be "if he die without heir male of his body; " S. C. sub nom. Goodier v. Clerke, 1 Keb. 73, 78, 169, 246, 462, where the case is stated somewhat differently.

The rule does not apply where the gift over is on death without issue at a certain age; Right v. Day, 16 East, 67, a will

[ *248]

case.

* The context may show that death "without issue" means "without leaving children," see post, Chap. XXIII., or "without leaving issue living at A.'s death." See the cases (all arising on Wills); Hawkins, 207; 2 Jarman on Wills, 497.

Rule 83.-" Or " without issue read and."-In a limitation to A. in fee simple, or to A. for life with remainder to his issue, with a gift over on his death before the happening of a certain event, or without issue, "or" will be construed "and."

Surrender of copy holds to the use of S. for life, remainder to the use of his wife E. during widowhood, remainder to the use of W. for life, remainder to the use of the issue of his body; with a proviso that if W. should die in the lifetime of S. or without issue of his body, then the surrendered premises should go over: Held, that or "must be read "and," and that the gift over would only take effect if W. died in the lifetime of S. without issue; Wright v. Kemp, 3 T. R. 470.

66

See the corresponding rule as to wills stated and discussed, 1 Jarman on Wills, 505; Hawkins, 203.

Rule 84.-Limitation to A. and his heirs with a gift over on his death without issue.-A limitation "to A. and his heirs," followed by a gift over if A. dies "without issue," or "without heirs of his body," confers an estate tail on A. (See per Wright, L. K., 1 P. W. 57, note.) See ante, Rule 74, p. 234.

Examples." If lands be given to B. and his heirs, to have and to hold to B. and his heirs, if B. has heirs of his body, and if he die without heirs of his body, that it shall revert to the donor, this is adjudged an estate tail and the reversion in the donor; Co. Lit. 21a.

Limitation to the use of A. and B., his wife for life and to the heirs of A. after the death of A. and B., and if it

* shall happen that A. should die without issue of his [* 249] body, remainder over; held, tail in A.; Canon's Case, 3 Leon. 5, pl. 13.

Feoffment by B., to the use of himself for life, remainder to the use of J. for life, remainder to the use of the first son begotten of the body of J. that shall have heirs male of his body and to his heirs, and in default of such issue of his body, to the use of the first daughter of J., which shall have issue of her body, remainder to the right heirs of J. Held, that the limitation to the first son of J., was a contingent estate tail in him; Beck's Case, alias Burton v. Nichols, Lit. Rep. 159, 253, 285, 315, 344. The report of this case sub nom. Boreton v. Nicholls, Cro. Car. 363, is very imperfect.

Limitation to the use of A. for life, remainder "to the use of his son Thomas and his heirs for ever, and for default of issue of the body of the son," to the use of the heirs of A.; held, tail in the son; Leigh v. Brace, 5 Mod. 266; S. C. Carth. 343; 1 Lord Ray. 101; 3 Salk. 337; Holt, 668; 12 Mod. 101. There is some discrepancy in the reports of this case, but it is correctly stated in the text. See Willes, 181.

Conveyance to the use of the settlor for life, remainder to the use of D., his heirs and assigns, but if D. should die without issue, to the use of T., his heirs and assigns, but if both D. and

T. should die without issue, to the use of the male issue of the settlor. D. died without issue; held, that T. took an estate tail; Morgan v. Morgan, L. R. 10 Eq. 99.

Limitation to the use of A. for life, remainder to the use of his eldest son and the heirs male of such eldest son, the elder always to be preferred before the younger, and in case of failure of the issue male of the eldest son, remainder over. Semble, the eldest son took an estate tail; Smith v. Smith, 5 Ir. C. R. 88.

Estate for life not enlarged by gift over on death without issue. -It is perhaps unnecessary to say that an express estate for life will not be enlarged by a gift over in default of issue of the tenant for life; Seagood v. Hone, Cro. Car. 366.

[* 250]

Rule 85.-Limitation over in default of such issue, or without leaving issue.-An estate in fee simple is not cut down to an estate tail by a gift over "in default of such issue," or, "without leaving issue."

"For default of such issue;" Idle v. Cook, 2 Ld. Ray. 1144; S. C. 2 Salk. 620; 1 P. W. 70; 11 Mod. 57; Holt, 164.

"Without leaving issue: " Olivant v. Wright, 9 Ch. D. 646. "For want of such;" Bayley v. Morris, 4 Ves. 788.

Personalty. As to the effect of such words in a gift of personalty, see Excel v. Wallace, 2 Ves. Sen. 118; on app. ibid., 318.

"Such issue" proceeding from specified body. Of course the context may show that the issue is to proceed from a specified body, so as to cut down the fee to an estate tail.

Limitation to the use of the first son who shall have issue male of his body and to his heirs, and for default of such issue over; held, tail in the son; Burton v. Nichols, alias Beck's Case, Lit. 159, 253, 285, 315, 344; S. C. sub nom. Boreton v. Nicholls, Cro. Car. 363.

In Beresford's Case, 7 Rep. 41a, a limitation in remainder "to the use of A. and of the heirs male of the said A. lawfully begotten, and for default of such issue," over, was held, on the construction of the whole deed, to give to A. an estate in tail male. Willes, C. J., says (Goodright d. Goodridge v. Goodridge, Willes, 374), that this case can hardly be cited as an authority, unless a deed of uses should happen to be penned exactly in the same words."

66

In Shelley v. Earsfield, 1 Rep. in Ch. 206, where the limita tions were, to the use of A. for life, remainder to the use of the heirs of A. lawfully begotten, and for want of such issue remainder (subject to some prior limitations) to the use of B. (A.'s