4th edit. showed that the children should all take their several shares. But is now 60. Mr. Fearne observes, that in the cases of Peaapplied. Ex. Dev. 302. cock v. Spooner, and Dafforn v. Goodman, no particular expressions determined the intent to be that the heirs of the body should take as purchasers. But these being cases of marriage settlement, it was reasonably enough inferred that the issue of the marriage were intended objects of the settlement, and the term not designed to vest wholly in the mother. But in subsequent cases, the words heirs of the body were held to be words of limitation. Webb v. Wms. 132. 61. Edward Webb, the defendant's grandfather, Webb, P. in consideration of a marriage between Thomas his son, and Anne his then wife, and 350l. portion, assigned divers lands to trustees for the remainder of a term of 1000 years, upon trust to permit the son to enjoy the same so long as he should live, and after his decease, then to Anne his wife as long as she should live, and after their decease, to permit the heirs of the bodies of the said Thomas the son and Anne his wife to be begotten, to hold the premises during the remainder of the term; and for want of such issue, to be enjoyed by the right heirs of the said Thomas the son. Thomas and Anne had several children; and he having survived his wife, and settled about two thirds of his estate on the defendant, his eldest son, and being indebted about 3007, made a mortgage of the premises for securing that money; and in order thereunto took out administration to the surviving trustee, and afterwards assigned the term to the plaintiffs, upon trust to sell the same, and pay off the mortgage. The plaintiffs, the trustees, being disturbed by the defendant (the eldest son), brought their bill for the execution of the said trust. The defendant, by his answer, set forth the first deed of trust, and insisted that he, as eldest son and heir of his father and mother, was entitled to the premises, by virtue of that settlement. The cause was heard before the Master of the Rolls (Sir John Trevor), who dismissed the plaintiff's bill. Upon a petition to Lord Keeper Harcourt, it was reheard by him; he said, he never heard, before the case of Peacock v. Spooner, that the limitations of a term in equity, differed from the case of a freehold at common law; and as that case differed from this in several material circumstances, he thought himself at liberty to determine this as if the case of Peacock v. Rod, v. Spooner was out of the way; and reversed the Tit. 8. c. 2. decree. Hayter § 28. 62. A term was vested in trustees, by a voluntary Thubridge v. Kilburn, deed, in trust to pay the profits to Sarah Sharp 2 Ves. 233. during her life, and immediately after her decease, to the heirs of the body of Sarah, lawfully to be begotten, if the term should so long endure; and for default of such issue, to the grand-daughter of the settlor. Lord Hardwicke was of opinion that the whole trust of the term vested in Sarah Sharp. Unless a con trary Inten 63. Notwithstanding the authority of the two preceding cases, there have been other determinations, tion appear. in which the Court of Chancery, proceeding entirely upon circumstances of evidence of intention, have held the words, heirs of the body, to be words of purchase. 64. Edward Bussey being possessed of a term for Hodsol v. Bussey, 59 years, by voluntary deed, conveyed it to trustees, 2 Atk. 89. in trust to permit Grace Bussey his wife to receive the rents and profits for the said term of 59 years, if she should so long live, and after her decease, to the use of the said Edward for life, and after the decease of Edward and Grace, then in trust for the VOL. IV. Dd heirs of the body of the said Grace by the said Edward, and to their executors, administrators, and assigns, for the residue of the said term; and for want of such issue, &c. Lord Hardwicke was of opinion that the whole did not vest in Grace, the words not being words of limitation, but of purchase; and that they might, from the circumstances of the case, be considered as words of purchase, appeared Tit. 38.c. 14. from Archer's case, where the superadded words of limitation made the word heir a word of purchase. Price v. Price, 2 Ves. 234. 65. A person on his marriage settled a leasehold estate to trustees, to the sole and separate use of his intended wife for life, for her jointure; and from and after her decease, to the use of the heirs of the body of the wife, by the husband to be begotten; and for want of such issue, to the use of the husband and his heirs for ever. Sir Joseph Jekyll held, that on the wife's death, the leasehold vested in the heirs cited 2 Ves. of her body, as purchasers Sands v. Dixwell, 652. TITLE XXXII. DEED. CHAP. XXIII. Construction.-Of Perpetuities. 1. Perpetuities discouraged. 7. History of Settlements. 28. And to Declarations of Trust 11. Settlements of Estates for 29. But not to Remainders after Life. 12. Of Terms for Years. 18. Alienation may be restrained during Lives in being and 21 Years after. 21. This Rule applied to spring ing and shifting Uses. Estates Tail. to the Issue of an unborn 25. And to Uses arising from 35. Perpetuities created by Act of Appointments. SECTION 1. Parliament. WE ante, c. 1. E have seen that by the introduction of the Perpetuities feudal law into England, all real property was discouraged, rendered unalienable; but by degrees the proprietors of land acquired a power to dispose of it; which was found to be so beneficial to the country, that the Judges have, for many centuries, established it as a rule, that real property should in no case be rendered perpetually unalienable; or, as it is usually expressed, that perpetuities should not be allowed. And this rule being founded on principles of general policy, 3 Cha. Ca. is adopted by the courts of equity, in as full an extent as by the courts of law. 31. Tit. 1. § 53. Tit. 2. c. 1. 2. Thus it has been stated, that an unlimited power of alienation is an incident so inseparably annexed to an estate in fee simple, that it cannot be restrained by any proviso or condition whatever. 3. The statute De Donis was procured by the nobility for the purpose of rendering their possessions Tit. 35 & 36. unalienable.. But the Judges, by means of common recoveries, and by their construction of the statutes of fines, effectually defeated the operation of this statute; and also laid it down as a rule, that a tenant in tail cannot be restrained from barring his estate by those assurances. King v. Mainwaring v. Baxter, 5 Ves. Jun. 458. 4. Any other mode of restraining a tenant in tail from alienation will also be deemed void, as tending to a perpetuity. 5. John Blunt devised real estates to his cousin John Harris for life, remainder to the issue male of John Harris, and to his and their heirs, share and share alike; and for want of such issue, to the issue female of J. Harris, and her and their heirs; remainder over with a proviso, that if J. Harris, or his issue, should alienate, mortgage, or incumber, or commit any act or deed whereby to alter, change, charge, or defeat the said bequests, they should pay 2,000 7. to the person who ought to take next by means of the said limitations. John Harris having two daughters, he and they joined in suffering a recovery. Lord Keeper Henley, after taking time to consider, delivered his opinion, that John Harris took an estate tail; and that the proviso was repugnant to the estate. 6. Lands were limited by deed to trustees and their heirs, to hold to the use of them, their heirs and assigns for ever, in trust to the use of Charles Mainwaring (the settlor) for life, and after his decease, to |