statute de Donis. The heirs who are to succeed to the estate are, by the express terms of the limitation, to be the heirs of the son; and it is not provided that they should be the issue of his body; for this reason, no estate-tail is created. The heirs which are described, may be the issue of an ancestor in a higher degree, and still be within the terms of the limitation.

All the descendants of the father, as well as the descendants of the son, are, by the words of limitation, to be inheritable to the estate; and it seems to be a quality of an estate-tail, to entitle none besides the issue or lineal descendants of the first donee, or those who stand in the same degree of relationship with him, and are part of a class (o); and these issue only, when they can severally claim in successive order, under a general name of purchase, as heirs of the body of their father; and that denomination is equally applicable to all of them. For the

mode in which heirs will become entitled, when they are to take under a collective name of description, the reader is referred to the observations on the rule in Shelley's case (p).

A gift to a man and the heirs of the body of his father (q), though made by the same sentence, and the same clause, contains, in construction of law, several and distinct gifts;

(0) Mandeville's case, 1 Inst. 26 b; Hodgkinson and Wood, Cro. Car. 17; Southcote and Stowell, 2 Mod. 207; Wright and Pearson, Ambl. 358.

(p) Supra, ch. 3.

(q) 1 Inst. 26 b, 27 a.

one to the son, the other to the heirs of the body of his father; and these heirs will take by purchase, as persons described by that name.

The son to whom the gift is made, may have a title under each of the gifts, and thus become tenant in tail.

His title under the limitation to the heirs of the body of his father, will depend wholly on the fact, that he unites in himself that description.

Unless he be the heir of his father, he cannot claim under the second branch of the gift, till this character shall be fulfilled in his person; and, in the mean time, the gift to the heirs of the body, will confer a title on that person, who is the heir of the body of the father, if he be dead, and in case he should be living, the gift will wait for effect till his death; and, in the interval, the estate-tail will be in abeyance, or contingency, for want of a person in whom it

may vest. That a limitation, frequently occurring in wills and in settlements (r), does or does not afford another instance of a qualified fee, seems involved in some doubt. The limitation now under consideration is, to the right heirs of a man, when the heirs are to take as purchasers, eo nomine, and of course, the estate does not vest in their ancestor. This limitation cannot have effect in any case, to give an estate to the heirs by purchase, unless it be made to the heirs of a person, who takes no preceding

(r) 1. Inst. 220 b; Gordon v. Goodwyn, 1 Ves. 227.

estate of freehold, by the same deed or instrument; nor unless the person, to whose heirs the limitation is made, be a stranger in point of estate. Mr. Fearne inclined to the opinion, that it gives a fee-simple to the person in whom the estate first vests; and such is the opinion generally entertained by the most experienced lawyers in the conveyancing department. Mr. Fearne (s) observes, "in a limitation to the right heirs of IS, without any antecedent limitation to IS himself, it appears, that to give the estate to his heirs by purchase, would not secure and confine the succession to the whole class of descriptive heirs of IS; but in case of such a limitation to the heirs of the body of IS, we have seen it might."

When a man is the owner of the estate (t), and makes a limitation by a conveyance at common law, to his right heirs, by that name; or devises to his right heirs by that name; or devises to the individual who solely unites in himself this description, by his proper name, (so as in a will the heir be to take in the same degree (u), and in the same manner, and an estate of the same quality, as he would be entitled to take by descent); in one case, the and in the other cases, conveyance,

(s) Butler's Fearne, 192.

(t) 1 Inst. 22 b; 4 Burr. 879; Hurst v. Earl of Winchelsea, Vin. Abr. verbo Heir, 1. 2; Dyer, 156 a b; Godolphin v. Abingdon, 2 Atk. 57.

(u) Hedger v. Row, 3 Lev. 127; Harris v. Bishop of Lincoln, 2 P. Wms. 135. To the right heirs of his mother's side, when he took from his mother's mother; Watk. Desc. 268.

the devise, is void as to the heirs. But, under a devise to several persons, being co-heirs, either as joint tenants or tenants in common in fee, they will take by purchase.

So a devise to one of two persons, being co-heirs, or to two of three or more persons, being co-heirs, would make the devisee or devisees, a purchaser or purchasers.

Since, if there were a descent, the other coheir or co-heirs would necessarily participate.

If the devise be to the person, who is heir, for an estate-tail, or for life, or for years, he will take by force of that gift, and by purchase.

Till a recent period, Scott v. Scott (x) warranted the conclusion, that even a devise in fee, subject to a limitation over by executory devise, altered the quality of the estate, and rendered the heir, being a devisee of the fee, a purchaser.

That case (and for the purposes of title, it may be said, unfortunately) is overruled, by Doe ex dem. Pratt and others v. Timins and another (y). The latter case will, in all probability, give occasion to further litigation, on the part of those, who have accepted titles under the authority of Scott v. Scott; a case which was supposed to have settled the law, and, with great deference, it be said, was founded on a basis and on principles, which gave it a claim to be followed.

That Scott v. Scott was contrary to former determinations, and professed to overrule them, (x) Ambler, 383; 1 Eden's Ch. Ca, 458.

(y) 1 Barn, & Ald. 530.

was a reason (z) for following Scott v. Scott, instead of opening a new field of litigation, and rendering the law on this point open to doubt and dispute.

A general rule belonging to this subject is, that no man can, by a gift, by deed or will, make his right heir a purchaser by that name (a).

Another rule is, that when a devise is made to a person who is heir, of the same estate as he would take as heir, he shall take by descent as his better title (b).

At the common law, no one could grant even to the heirs of his body, by that name, to make them purchasers. This rule flowed from another rule, that no man could grant to himself, or become a purchaser by his own grant. Nemo potest esse agens et patiens.

But in conveyances to uses and in wills, a person may make the heirs of his body, by that name, purchasers; since he alters the quality of the estate, to which these heirs would, as general heirs, be entitled by descent (c).

But when a man makes a limitation of the ultimate estate of the use in favour of his right heirs (d), and with or without any limitation of

(z) Goodtitle v. White, 15 East, 174; infra, 466.

(a) 1 Inst. 22 b; Watk. Desc. 268, 280.

(b) Watk. Desc. 269, 270.

(c) Else v. Osborn, 1 P. Wms. 387.

(d) 1 Inst. 10 a; Bedford's case, Poph. 3; Fenwick and Mitford, 1 Leon. 182; Mo. 284; Jenkins, Cent. 248; 2 Rep. 91 b; Cro. Eliz. 334; Hales' MSS. in Harg. Co. Litt. 22 b; 3 Leon. 406; supra, Ch. 3.