body of the given person, though related to the first taker only in the collateral line, into the measure and extent of this estate. So complete an owner of all the estate, is each successive taker, that he may defeat the right of every other person falling within the terms of the gift. All the heirs OF THE BODY of the person to whose heirs the limitation is made, take, in point of estate, precisely in the same manner, and with the same degree of interest, and in the same relative situation, as if the estate had vested in their ancestor, under a gift to him and his heirs of the given description. The heirs succeeding from time to time, collaterally to the first taker, do not take by way of remainder; nor does the person in whom the character of heir is first fulfilled, take the same limited degree of interest, as if the gift had been to HIM and his heirs of his body. His brothers and sisters are within the extent of the gift, and they may take in succession, and may be barred by his fine with proclamations (b). Neither do they take separate and distinct estates. Their only ground of claim is, that the measure of the estate does, in its comprehensive terms, embrace persons of their description, and confer a right on them, as heirs within the compass of the intail. Strictly speaking, they do not take by descent; for they do not claim as heirs to the person, in whom the estate first vests. He is not their ANCESTOR; nor can they, with any precision, be said to take (b) Hob. 258; Co. Litt. 372 ab.

by purchase; for then they would take separate and distinct estates (c). They take in a mixed right in a right which cannot be easily defined; by a quodam modo descent; a descent per formam doni under the statute of intails (d) (e).

When a gift to heirs or heirs of the body taken separately, would confer an interest of this nature, then the rule will apply to a gift connected with an estate of freehold in the ancestor. This position seems to be so clearly maintainable, that every case of this description necessarily invites the application of the rule.

From these deductions it will appear, that the previous inquiry must be, what is the true construction of the limitation to the heirs, or heirs of the body, considered distinct from the freehold in the ancestor. Does it describe all possible heirs of the given description; so that it is not confined to one person, or to several persons, in whom the character of heirs shall be first fulfilled; or does it by these words, independently of words of superadded limitation, extend to the issue, or the issue and other relations of these persons; is the material point to be discovered.

The rule in Shelley's case will be applicable or not, according to the result of this inquiry.

That all possible heirs of the given description are to take in succession, from generation to generation, under the name of heirs of the an(c) Watk. Desc. p. 3, note (a). (d) Ib. 156.

(e) Butler's Fearne, 80.

cestor, is to bring the case immediately within the rule. That only one individual, or several individuals, is or are to take, in the character of heirs, or rather as particular persons described by that name, either for their lives only (f), or for an estate of inheritance to be deduced from them as the stock or ancestor; and that their heirs are described by superadded words of limitation and as their descendants, is to exclude the rule.

The intention that the heirs should or should not take by purchase, ought not to form any part of this preliminary inquiry (g). The single point to be decided is, in what manner THEY ARE TO TAKE; generally, without exception, as a class of inheritable persons, and as the successive heirs of the person to whom the preceding estate of FREEHOLD IS LIMITED; or partially, as individuals selected out of the class of heirs, and for an estate which, so far as it depends on the gift to the heirs, because they, as heirs, &c. of their ancestor, are the donees, will determine with their deaths; and so far as it is of an inheritable quality, will entitle those heirs only, who, deducing their pedigree from these individuals are to look up to them as their common stock, from whom their descent is to be derived, in like manner as if the parent or ancestor of these individuals had been named as the donee.

(f) White and Collins, Com. Rep. 259.

(g) Sed vide Doe v. Ironmonger, 3 East, 533; 7 Term, Rep. 532.

It is on these grounds that the decision of the case of Perrin and Blake (h), in the Exchequer Chamber, is more satisfactory than the judgment pronounced in the Court of King's Bench, on the same case.

In that case, the devise, so far as it is material, was made by Mr. Williams, in these words; "Should my wife be enseint with child, at any time HEREAFTER, and it be a female, I give and bequeath unto her the sum of 2,000l. &c.: and if it be a male, I give and bequeath my estate, real and personal, equally to be divided between the said infant and my son John Williams, when the said infant shall attain the age of twenty-one. Item, it is Item, it is my intent and meaning, that none of my children shall sell or dispose of my estate for longer time than his life; and to that intent I give, devise and bequeath all the rest and residue of my estate to my son John Williams and the said infant, for and during the term of their natural lives: the remainder to brother-in-law J G and his heirs, for and during the lives of my son John Williams and the said infant, the remainder to the heirs of the body of my said son John Williams and the said infant lawfully begotten or to be begotten, the remainder to my daughters," &c.

my

It is by observing on this case, that the rule may be brought to the test, and illustrated.

That this case did or did not call for the

(h) 4 Burr. 2579; 1 Black. Rep. 672; 1 Collectanea Juridica, 283; MS. Rep.

application of the rule, was a point, on which a great diversity of opinion was entertained. Men of the first eminence differed in their sentiments on the construction of this will. In the Exchequer Chamber it was held by a majority of the judges, that the rule did APPLY TO THIS CASE; and the judgment of the Court of King's Bench, founded and pronounced on the opinions of Lord Mansfield and Justices Willes and Aston, against the opinion of Justice Yates, who argued very ably and strenuously for the application of the rule, was reversed.

Trying the solution of the law on this will, by the modes of inquiry which have been recommended for ascertaining the application of the rule in doubtful cases, it is clear that the case of Perrin and Blake was completely within the reason and the terms of the rule; without any circumstance (besides the intention of the testator, as collected from the express estate for life, and the limitation to support contingent remainders, that the heirs should take distinctly from their ancestor,) to show that the testator did not use these words as words of limitation, that is, as comprehending the whole class of heirs. This intention, so far from negativing the application of the rule, is the very ground and reason from which it had its origin.

It was clear that the testator intended that the successive heirs of his son, and not merely one more individuals in particular, should be