power to defeat the intention of the testator (z); nor,

3dly, That the ancestor shall be tenant for his life and NO LONGER, and that it shall not be in his power to sell, dispose, or make away with any part of the premises (a); nor,

4thly, A provision that the ancestor shall not be impeached for waste; nor,

5thly, That he shall have a power of leasing. or jointuring; nor,

6thly, The interposition of an estate to trustees to support contingent remainders (b); nor a direction that the heirs shall take SEVERALLY and SUCCESSIVELY, as they shall be in PRIORITY OF BIRTH; every elder and the heirs male of his body to be preferred to every younger; will change the word heirs into words of purchase (c).

Nor will a gift to two, as tenants in common, with a limitation to their heirs, &c. equally to be divided (d);

Nor a gift to A and the heirs of her body lawfully to be begotten, for ever, as tenants in

(z) Thong v. Bedford, 1 Brown's Ch. Ca. 313.

(a) Hayes v. Foorde, 2 Black. Rep. 698.

(b) Hodgson and Ambrose, and Coulson and Coulson, supra. (e) Legate v. Sewell, 1 P. W. 87; see also Jones and Morgan, 1 Brown's Ch. Ca. 206; 7 Brown's Par. Ca. 130; Miller v. Seagrave, Robinson's Gavelkind, 96; Fearne, 179.

(d) Thrustout v. Peake, Str. 12.

common, and not as joint-tenants; and in case she shall happen to die before twenty-one, or without leaving issue of her body lawfully begotten, then to others (e);

Nor a gift to A and the heirs of her body lawfully to be begotten, whether sons or daughters, as tenants in common, and not as joint-tenants; and in default of such issue, then over (ƒ);

Nor will the word first, next or eldest, subjoined to the word heir in the singular number, or to the word heirs in the plural number, be sufficient of itself, for this purpose, UNLESS ATTENDED WITH WORDS OF ENGRAFTED LIMITATION, clearly showing that particular persons were in the contemplation of the parties, and singly and individually, the objects to be ascertained under the description of heirs of their ancestors (g).

Without such special indication of intention, this word of reference will, in construction of the words heirs, &c. be UNDERSTOOD to mean nothing more, than that the person who, for the time being, shall be the FIRST in the line of succession, is the object to be preferred, and the person designed to take under these words.

Nor even in wills will words of superadded limitation, though accompanied by the word first, &c. always render it necessary to construe

(e) Doe v. Smith, 7 T. Rep. 531.

(f) Pierson v. Vickers and Wife, 5 East, 548.

(g) Whiting and Wilkins, 1 Bulstr. 219; 1 Roll. Abr. 836; Trollope and Trollope, Amb. 453; Rob. Gavel. 96; 1 Vent. 230.

the word heirs, in the first instance, to be words of designation or purchase (h).

That the word heirs may have this construction, the words of superadded limitation must vary, and be wholly inconsistent with, the line of sucCESSION imported by the first mention of heirs, as in the several cases already noticed. In Wright and Pearson (i), a devise was in trust for A for life, remainder to trustees to support contingent remainders, remainder to the use of the heirs male of A and their heirs and in Goodright v. Pullyn (k), a devise was to N for life, remainder to the heirs male of his body lawfully to be begotten, and his heirs for ever; and it was held, that the several devisees took estatestail, under the limitation to their heirs; and, of course, the words heirs, &c. were construed to be words of limitation: and in the case of King and Burchell (1), the devise was to I H for life, remainder, after his death, to the issue male of his body, and to their heirs; and for want of SUCH ISSUE, to W R, his heirs and assigns for ever: and Lord Keeper Henley determined, that I H took an estate-tail, and that a proviso for imposing a charge on the estate, in favor of the person next in remainder, in case of alienation, &c. by I H OR HIS issue

(h) Minshull v. Minshull, 1 Atk. 411.

(i) Ambl. 358.

(k) 2 Lord Raym. 1437; and Minshull v. Minshull, 1 Atk. 411.

(1) Ambl. 379; Frank v. Stovin, 3 East, 548. S. P.; Roe ex dem. Dodson v. Grew, 2 Wils. 322.

male, or (they, as well as the issue male, being named to take under limitations of other property,) issue female, was vOID.

The difference between these cases, and others which, on a first impression, appear to be similar in their circumstances, may, with a little attention, assisted as that attention will be, by a reference to the principles and grounds of the several determinations, be easily discovered.

On the reason which influences the determination of these cases, some notice has already been taken in different parts of this Essay.

That the word heirs, in reference to limitations of legal estates, may be a word of purchase, even in a will, it must, in terms, be explained to be of the same import with the word children, and used to describe them, without extending to the whole line of successors.

Or they must be used and be interpreted in this sense, or otherwise cannot have any effect, according to the intention with which they are introduced into the will.

Or they must be used to describe a particular person, or several persons, or a class of persons.

Or they must engraft a new order of succession, by giving an inheritable interest to be derived from this person, these persons, or this class of persons.

Or they must be used as ascertaining a person already in existence; giving an estate to him. immediately.

Or because, from the context, it may be

collected that no intail was intended to be

created (m).

Thus in Lowe v. Davies, a devise was to B and his heirs lawfully to be begotten; that is to say, to his first, second, third, and every other son and sons successively, lawfully to be begotten, of the body of the said B, and the heirs of the body of such first, second, third, and every other son and sons successively lawfully issuing, as they should be in seniority of age and priority of birth; the eldest always, and the heirs of his body, to be preferred before the youngest and the heirs of his body.

And in Doe v. Laming, the devise was to A and her heirs of her body, lawfully begotten, or to be begotten, as well females as males, and their heirs and assigns for ever, to be equally divided between them, as tenants in common, and not as joint-tenants (n).

And in Archer's case, the devise was to A for for life, remainder to the next heir male of A, and to the heirs male of the body of such next heir male.

And in Burchett v. Durdant, the devise was to A for life, without impeachment of waste; and after the decease of A, then to the heirs male of the body of A NOW LIVING (0).

And in all these cases, the

as heirs, took by purchase.

persons designated

(m) Doe v. Goffe, 11 East, 668; White and Collins, Com. Rep. 289.

(n) Doe v. Laming, 2 Burr. 1100; 1 Black. Rep. 265.

(•) Burchett v. Durdant, 2 Vent. 311; 2 Lev. 232.