his body by his intended wife, remainder to the right heirs of himself; with a power to husband and wife to make leases; and a provision, that if the husband should die without issue male, by his intended wife, and there should be one daughter, she should have 3,000l. and if there should be more daughters than one, they should have 4,000l. among them: and these portions were secured on part of the settled lands. And it was resolved, that 3,000l. secured to the daughter, the only issue of the first marriage, by a settlement which the husband made on a subsequent marriage (he having, till that time, suffered the provision for the issue of the first marriage to rest wholly on the articles) was an actual satisfaction of all demands under the articles, and that though a limitation by articles to the heirs male of a marriage, after an express estate for life to the father, was taken to mean a remainder to the first and every other son, it did not follow, that a limitation to the heirs of the body must be equivalent to a remainder limited to daughters; especially in this case, where they were postponed to the heirs male of the body of the intended husband by any wife; and where there was an express pecuniary provision made for the daughters by the first wife.

It may be added, (and this circumstance. makes this case more clearly distinguishable from West and Errissey,) that no notice was taken of daughters contrasted with sons, or of females contrasted with males, as the express

objects of the provision made by the limitations of estates, and that care was taken of the daughters UNDER THAT NAME by a provision of a different sort.

That there is an allowed and established distinction between those articles which do, and those which do not, by a change of expression, in the several classes of limitation, show that the settling party makes a difference between the use of the words first and other sons, and the words heirs of the body; and even between the different use of the words heirs of the body in different clauses of the same instrument, is clear from Powell and Price, already cited, and from Chambers and Chambers (r), and Howell and Howell (s).

In the former of the two last cases, money in the hands of trustees was articled to be disposed of in the purchase of lands, to be settled on the intended husband for life, remainder to the intended wife for life, for her jointure, remainder to the first and other sons of the marriage successively in tail male, chargeable with 2,000 7. for younger children, remainder to the husband in fee; and, by the same articles, the father of the intended husband, covenanted to settle other lands on his said son and the heirs male of his body, remainder to the right heirs of himself, the father.

In the latter of these cases, the articles were

(r) Fitzgibbon's Rep. 127; 2 Eq. Ca. Abr. 35. C. 4.
(s) 2 Ves. 358.

for a settlement of part of the land, on the husband for life, remainder to the wife for life, remainder, after the death of the survivor, to the heirs of the body of the wife; and of other part of the lands, on the husband for life, remainder to the heirs of his body, remainder to the wife. And it was said, in the first of these cases, by Lord Chancellor King, that by the articles, those lands which were comprised in the second class of limitation were not intended to be settled, as a provision for the children of that marriage; that the children were taken. care of by the other part of the articles; by the trust money; and that it was not like the common case of articles for a settlement on the issue of the marriage, where no other provision was made for, or care taken of, them; and that the different manner of penning the articles in relation to the trust money, and as to those lands; the one to be in strict settlement to the first and other sons of that marriage, the other to be limited to the husband and his heirs male of his body generally, and not tied up to the issue of that marriage (t), showed plainly that the parties understood, and had in contemplation, the difference between a strict settlement upon the issue of that marriage, and a general settlement upon the husband and the heirs males of his body.

In the latter of these cases, it was observed by Lord Hardwicke, that there was a difference in the penning of the two limitations; that on

(t) See infra.

the first, the parties might have it in view, to leave it in the power, not of the father only, but of both to vary; that on the second, there would be no sense of the limitation, but as the son contended, which was to have the articles carried into execution strictly, to the first and every other son in tail; that otherwise it would be in the power of the father, by fine, to bar it and defeat all the issue; that it seemed a strong distinction on the face of the articles; and that there had been cases adjudged on that distinction; that as there was a difference in the penning of the articles; in one (should be, clause) of which they might intend to leave it in the power of the father, in the other not in his power to do it alone, it was a reasonable way.

In delivering his opinion on this case, Lord Hardwicke cited a case of articles for a settlement, of part of certain lands on the father for life, on the wife for life, on the first and other sons and daughters in tail; and of other part, on the father for life, and the heirs male of his body by his then intended wife; and stated Lord Macclesfield (who decreed to the father in tail, as to the lands comprised in the second class of limitations) to have said, by way of observation on that case, if that had been the sole limitation, he should, without scruple, decree IN STRICT SETTLEMENT, according to the common rule; but that where the parties had shown they knew the distinction, when to put

it out of the power of the father, and when to leave it in his power, he would not vary the last limitation.

Deeds and wills creating trusts which are executory, and show an intention in the party, that his directions shall not be considered as complete and conclusive, but rather as minutes, from which more full and more correct limitations are to be framed, are open to the same observations, and entitled to the same construction; and in these instruments, the word heirs will receive the same interpretation as in executory trusts, as often as there is any trace of an intention to use this word, or, IN WILLS, and perhaps in deeds too, the word issue, or other substituted word of the same import, as words of purchase.

In instruments creating executory trusts, the clause for exempting the ancestor from impeachment of waste; the insertion of trustees to support contingent remainders, or any clause which denies the power of barring the intail (u), or any like clause, furnishes evidence of such intention. The case of Leonard v. Earl of Sussex (x), goes still farther; for in that case, the trust was, by one and the same connected clause, to settle on the ancestor and his heirs of his body, without any express estate for life, or any other controlling circumstances, besides directions that special care should be taken in such settlement, that it should never be (u) Per Grant, 2 Ves. & B, 371. (x) 2 Vern. 526.