of freehold, by implication, at the same time that he took an estate of a chattel quality by express limitation, this was a fair instance for its application; for the estate of freehold would not have been immediately expectant on the estate for years determinable on his decease, so as to have caused its immediate merger, but would have taken place in order of time, after and in remainder of the estate for twenty-five years, limited to the trustees. Thus, the two estates would, in the first instance, have been distinct and compatible.

Notwithstanding this circumstance, the resulting use was negatived in this case, and also in Rawley and Holland (z); a case which was open to the like observations, as containing similar limitations; with the difference only, that in Rawley and Holland, the trustees had a longer term, viz. two hundred years.

In Rawley v. Holland, the express ground of the decision was, that no estate of freehold could result to 4 for his life by implication, because another estate, viz. for ninety-nine years, if &c. inconsistent with a freehold by implication, was expressly limited to him.

But when the estate for years is limited to some other person than the author of the uses, in trust for him, then an estate of freehold may arise to him by implication. Beverley and

(z) 22 Vin. 189; 2 Eq. Abr. 753.

·Beverley (a), is an authority for this dis

tinction.

In that case, a conveyance was made by A, to the use of trustees for seventy years, if A should so long live, remainder to trustees for three thousand years; and from and after the death of A, to B, his son, for life, with divers remainders over.

It was objected, that the limitation to B, and the remainders over, were void; being estates of freehold to commence in futuro. The ground was, that the first freehold estate was limited to B, and was not to arise until the death of A; and no estate was vested in A for his life, unless an estate for life resulted to him. And after solemn argument on the point, and a case stated to the judges for their opinion, it was decreed, that an estate for life resulted to A, and supported the limitation over.

And in Willis and Palmer (b), the author of the uses had the fee under the limitations of use, till the marriage then in contemplation, and for which the settlement then made was intended to be a provision; and still an estate for his life was held to result to him, under the uses, to take place after the marriage (c).

Again, when a man devises lands of inheritance after the death of his wife to the person who is his heir (d), then from the expression of

(a) 2 Vern. 131. (b) 5 Burr. 2615; 2 Bl. Rep. 617. (c) Fearne 63; Davis and Speed, 2 Salk. 675.

(d) 1 Eq. Abr. 196.

the particular period at which the heir is to take, the law considers him to be excluded of all right of enjoyment till that time; and because the death of the wife is used to mark the commencement of the estate limited to the heir, the law presumes that it was the intention of the testator, that his wife should have the property devised in this manner for life. Hence, by implication, the widow will be tenant for life.

So if a man devise land to another after default of issue of the body of the person, who, on his death, will be his heir (e), the implication is, that the testator intended that his heir should have an estate-tail, and the devisee an estate in remainder, expectant on that estate; and estates will pass to the heir at law and devisee accordingly. The intention of the testator cannot be reconciled with his words; or his will, as expressed, have effect by any other construction.

The devise considered as a substantive independent gift would be construed a devise to take effect on an indefinite failure of issue; and in that point of view would be void, as too remote (f).

Again, when a devise is made to two persons who may not lawfully intermarry, and the heirs of their bodies; and in case they shall both die without issue of their bodies, then to another,

(e) Walter v. Drew, 1 Com. Rep. 372.

(f) Lady Lanesborough v. For, Cas. temp. Talb. 262.

each person has, under this devise, an estatetail, with a remainder in the other's moiety in, tail; in other words, with a cross remainder in tail. The express limitation passes several inheritances with a joint freehold. Each tenant has an estate to himself (jointly with the other during the life of that person, and till the jointure shall be severed,) and to his heirs of his body; and under that limitation, the estate of each person, so far as it is merely an estate of inheritance, would determine when there shall be a failure of heirs of his body.

The clause introducing the next limitation imports an intention which would not be completely fulfilled by this construction. From the terms in which the remainder is introduced, it is clear, the person to be benefited by that limitation is not to be entitled to the possession till there shall be a failure of the several heirs of the several and respective bodies of each of the devisees. Therefore it is concluded, that an interest of that extent was intended for them; and since no construction which can be made of these clauses of express limitation would give to each an estate-tail in both moieties, the courts will raise an estate-tail to each, in the moiety of the other, by implication (ff).

All these cases are to be contrasted with instances in which there is not any room for such implication; and in the chapters on

(f) See also Tenny v. Agar, 12 East, 253; Romilly v. James, 6 Taunt. 263.

Estates-tail, and for Life, the discussion will be resumed.

Estates will now be considered in relation to their quantities and several sorts, as they are of freehold, and not of freehold; and with reference to the words by which their extent is to be marked, or may be ascertained; and also with a view to the construction of instruments already prepared, and under consideration for an opinion on their legal operation and effect.

CHAP. II.

On Freeholds.

THE term freehold, as denoting an estate of a given quantity, or rather of a peculiar quality, is opposed to the term chattel (g). Questions have arisen on the import of this

term.

Reference has been made to the most ancient law writers, to prove the grounds of a variety of opinions. The passages which have been quoted have been sometimes misunderstood, or grossly misrepresented.

The term may be easily explained.

It is acknowledged, on all hands, that our rules of property are, for the most part, derived from the policy of the feudal establishment (h). (g) 1 Inst. 43 b; 1 Burr. 108.

(h) 2 Eun. 85; 2 Bl. Com. 44; 3 Bl, Com. 434; 1 Doug. Contr. Elect. Cases, 2.