Roberts v. Kingsley, 1 Ves. 238. Legg v. Goldwire, Forest, R. 20. the heirs of the body of the husband by the wife. And it was ordered by the House of Lords, that the lands should be conveyed to the grand-daughters, in the manner already stated. 52. By articles before marriage, an estate was agreed to be settled on the husband for life, remainder to the heirs male of his body, with power to raise portions for younger children. A settlement was afterwards 'made, also before marriage in pursuance of the articles; and observing the very words of the articles. The husband levied a fine, and declared the uses to himself in fee. The son brought a bill to have the settlement rectified, according to the intention of the articles, which was to make his father tenant for life only, although the words both of the articles and settlement, in construction of law, made him tenant in tail. Before marriage, indeed, the parties might come to a new agreement, but the settlement itself being in pursuance of the articles, excluded any such notion. Lord Hardwicke said-This was the common case, the variation from the intent of the articles, and from the ordinary course of settlements, not arising from any new agreement (being made in pursuance of the articles), or fraud; but from mistake in not attending to a strict settlement; the reason of which was unanswerable, viz. that on a settlement for valuable consideration, to make the father tenant in tail, would be nugatory, and the same as making him tenant in fee; therefore the son was entitled to relief, and to have the settlement rectified according to the true intent of the articles. 53. But where both articles and settlement are previous to marriage, at a time when all parties are at liberty, and the settlement is not expressed to be made in pursuance and performance of the articles; there, if the settlement differs from the articles, it will be considered as a new agreement between the parties, and will control the articles. there are pur 54. It should however be observed that the Court Except where of Chancery will not, in those cases, relieve against chasers. purchasers for a valuable consideration, and without notice. As in the case of West v. Erisey, where one Ante, § 44. of the objections to the appeal was, that if the articles should be allowed to control the settlement, the purchasers under the husband would be affected. To which it was answered that the appellant's bill was not brought against any purchaser, as to the parts of the estate sold by the husband; since the appellant only prayed satisfaction out of his personal estate, and the decree was according to such prayer, and did not affect the purchasers. Ante, 346. Warwick v. 8 Atk. 291. ́ 55. So in the case of Powell v. Price, it was admitted that if the trustees under the settlement, or the second wife, had had no notice of the articles made on the first marriage, then their being purchasers, without Mackrill, notice, would have been a bar to the plaintiff's claim, by the articles. 2 Eden. 344. formerly ap. plied to terms for years. 56. This rule does not appear to have been formerly The rule not applied in the construction of assignments of terms for years; for in the early cases, the words heirs of Feare, Ex. the body appear to have been considered as words of Dev. 6th edit. purchase. 490. Spooner, 2 Vern. 43. 195. 57. The trust of a term for years was limited upon Peacock v. a marriage to A. the husband for life, then to B. the wife for life, and then to the heirs of the body of the wife, by the husband to be begotten. Lord Chancellor Jeffries decreed, that the whole vested in the wife. Afterwards the Lords Commissioners, Trevor, Rawlinson, and Hutchins, resolved, that the issue 2 Freem. 114. should have it; for to support the intent of the set- 133. tlement they would take the words heirs of the body to be descriptio persona, and not words of limitation; 2 Atk. 73. which was affirmed by the House of Lords. 58. A termor for years, by settlement on his marriage, assigned his term to trustees, in trust for himself for life, remainder to his wife for life, remainder 1 P. Wms. Dafforn v. 2 Goodman, Vern. 362. of one moiety to the heirs of the body of the wife by the husband, remainder, as to the other moiety, to the children of the body of the wife. The husband died, leaving a son of that marriage. The wife married again, and had a son by the second husband. Upon 1 P. Wms. 372. a question whether the whole interest, in the first moiety of the term, vested in the wife, Lord Somers held, that the case of Peacock v. Spooner having been decided by the House of Lords, must govern this case. There the like limitation to the heirs of the body of the wife, by the husband to be begotten, was adjudged to be take as words of purchase, and not as words of limitation. Ward v. 1 P. Wms. 134. 59. So where A., possessed for 2000 years of a tenement, in consideration of a marriage, and of 3501. portion, and for provision and stay of living of the husband and wife, and their children, demised to trustees for 1700 years, if he and his wife or any of their issue should live so long, in trust for the husband for ninety-nine years, remainder to the heirs of the body of A. by that wife. They had issue three daughters; two of whom got an assignment of the whole term, and had administration to the father. And the question was, whether the third daughter was entitled to a third with her sisters? for though it was insisted for the administratrix, that the trust of the whole term vested in the father, and was executed in him, and that the daughters, though the heirs of his body could not take by purchase in this case, yet the Master of the Rolls (Sir John Trevor) conceived, that inasmuch as there was a particular term of ninetynine years taken out of the 1700, and the father had a particular estate limited to him during ninety-nine years, the trust of the whole term during the 1700 years was not executed to the father. And his Honour said, that the construction of trusts must be governed by intention; and this being the case of a marriage settlement, and the intention plain, it ought to be supported. And his Honour did conceive in this case, that though the word heirs was not properly a word of purchase, yet there being a particular estate for life, during a particular term, limited to the father, the limitation to the heirs of his body afterwards, on that marriage, would carry it to all the daughters equally and he was the more of that opinion, because it was declared in the deed, that, after the death of the father, the trustees should execute estates to the person and persons respectively, that should be interested, according to their respective shares therein; which showed that the children should all take their several shares. 60. Mr. Fearne observes, that in the cases of Peacock 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. 2 P. Wms. 132. 61. Edward Webb, the defendant's grandfather, in Webb v. Welb, 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 remaimder 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 inVOL. IV. 2 A Hayter, v. c. 2. Thubridge v. Unless a contrary intention appear. Hodsol v. debted about 300/., 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. Spooner was out of the way; and reversed the decree. 62. A term was vested in trustees, by a voluntary deed, in trust to pay the profits to Sarah Sharp 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. 63. Notwithstanding the authority of the two préceding cases there have been other determinations, 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 fifty-nine years, by voluntary deed, conveyed it to trustees, in trust to permit Grace Bussey his wife to receive the rents and profits for the said term of fifty |