heir; but we may collect from his will an intention, that, as amongst those claiming under the will, the personal estate, or any portion of the real estate, shall be exonerated; and if there be an equal intention to give to devisees named, and the gift must be encroached upon by the liability of the subjects of them to pay debts, I think the doctrine that the heir, who is devisee, shall take by descent, does not afford a sufficient reason for saying, that the burden of the debts should not be borne ratably by the devisees, although one of them is heir; and I am of opinion that although the creditors have a right to resort to the estate devised to the heir, in priority to the other devised estates, yet that the heir will be entitled to contribution from the other devisees to the extent in which his estate may be exhausted by debts. Mr. Pemberton and Mr. Cankrien, for the other devisees. Mr. Dixon, for the heir at law.1 WILLIAM HARDING, by his will, dated in 1845, gave and devised all his freehold and copyhold estates to Anthony Davis, his heirs and assigns, to hold the same unto and to the use of the said Anthony Davis, his heirs and assigns, upon trust to sell all those three closes therein specifically described, and to stand possessed of the moneys to arise from such sale, upon trust to pay all the said testator's debts, funeral and testamentary expenses; and in the next place to pay the residue thereof to the said testator's wife, Ann Harding; and as to all the rest, residue, and remainder of the said testator's real estate therein before given and devised to his said trustee, upon trust to pay the rents and profits thereof unto the said Ann Harding for her life; and, after her decease, upon trust to convey the said residue of his the said testator's real estate unto such person as should answer the description of his heir-at-law; and the said testator appointed the said Anthony Davis executor of his said will. The testator died shortly after the date of his will, and the said Ann Harding, his widow, died in 1853. At the time of his death, the testator William Harding was seised in fee of copyhold lands besides those mentioned in the will, which had descended to him ex parte materna, and these were now claimed by his heir-at-law, and also adversely by his heir ex parte materna. Mr. W. M. James, Q. C., and Mr. Jessel, for the plaintiffs. 1 Ellis v. Page (1851), 7 Cush. 161, is contra. Mr. Willcock, Q. C., and Mr. Karslake, for the heir-at-law, who was also the customary heir of the testator. VICE-CHANCELLOR SIR W. PAGE WOOD, without hearing the counsel for the defendants, gave judgment as follows: — I do not think that there is any doubt about this case. I have been looking at the case of Harris v. The Bishop of Lincoln, 2 P. Wms. 135. The report of it is in the shape of an argument between the bar and the court, counsel making an observation and the court answering it. I find there "it was objected, that, if the will should be construed in such manner as to entitle the heir of the mother's mother to the estate, such will would be void and nugatory, and the testator all this while would be doing of nothing, because, without any will, the premises would go to the heir of the mother's mother, who was the heir-at-law to this estate, the heir of the mother's father having none of the blood of the first purchaser. To which the court said, that the testator giving by his will several annuities and charities, and then saying that the residue of the profits should go to the right heirs of the mother's side, it was the same thing as if he had said, 'so far I dispose of my estate, and let so much of it go from my heir who otherwise would have had it, but I will not dispose of it any further from the heirs at law of the mother's side, whence it came, and where it would go in case I should not give it away."" In other words, the court treated it as not being a devise at all, but considered that the heir took by his better title; and that was the principle of the decision. I think that the answer to the case of Godbold v. Freestone, 3 Lev. 406, which is the only case that touches this, is, that the use is the old use. Here the devise is an express devise, which vested the whole fee simple in the trustees, and gave it away from the heir. The whole estate is devised away from the heir, and the trustees are left to deal with the legal fee simple, and to convey it to such person as should answer the description of the testator's heir-at-law. The expression "heir-at-law" is somewhat strong; but, independently of that, the fact of the testator having devested the inheritable quality of the estate by breaking the descent entirely, and giving the estate to the trustees, and leaving them to find out the heir, has put them under an obligation to look upon the heir as a persona designata, and they cannot regard the inheritable quality of the estate, but they must find out the person who answers the description of heir-at-law of the testator. I think that there is not any authority precisely in point; but the principle must be, that, when once the descent is broken by a devise of the whole fee simple to trustees, upon trust to convey it to the testator's heir, they are bound to convey it to the person who is heir of the testator according to the common law. NOTE."Upon recollecting the case on Mrs. F.'s will, lately laid before me by Mr. W., it now strikes me that the opinion I delivered upon it is, in one part, not well founded; and, though I have not the case, nor a copy of it, by me, my memory sup SECTION III. POSTHUMOUS HEIR. Co. LIT. 11 b. So it is if a man hath issue a son and a daughter, the son purchaseth land in fee and dieth without issue, the daughter shall inherit the land; but if the father hath afterward issue a son, this son shall enter into the land as heir to his brother, and if he hath issue a daughter and no son, she shall be coparcener with her sister.1 By Cat code a child conceived plies me with all that is necessary to enable me to make what, I think, the requisite can take correction. "The devise by Mrs. F. to her two sons, if I remember right, was under a power in her marriage-settlement. Now, regularly, whoever takes under an execution of a power contained in any conveyance or settlement, takes under such conveyance or settlement itself; and, if this rule extended to the present case, both the sons must have taken as under the settlement, and consequently by purchase; in which case, their heirs, ex parte paterna, would have been clearly entitled to the whole. But the rule, it seems, does not hold in a devise, under such a power, to the heir-at-law of the party executing it, where such heir would have taken the same estate by descent from that person in default of execution of the power. Vide Hurst v. The Earl of Winchelsea, 1 Black. Rep. 187. For there, according to the common rule in respect to devises to an heir-at-law, such heir shall be in by descent, and not by purchase. "This consideration only affects the moiety of the eldest son; for, as to that devised to the youngest, he could not take it otherwise than by purchase, as he was not heir of the testatrix; and, as he took by purchase, his share of course descended, either immediately from himself, or mediately through his brother (if his brother survived him), to his heir ex parte paterna: And, therefore, I think it clear, that the heir of the son, on the part of Mr. F. their father, is entitled to this moiety. But, as to the other moiety devised to the eldest son, it remains to be inquired, How the lands were limited by the settlement, in default of appointment by Mrs. F.? which, I believe, did not appear by the case stated. If they were not limited to her in fee, so that her eldest son would not have taken if there had been no will, then, I conceive, he took as under the settlement, by virtue of the execution of the power contained therein; for he could not, in that case, take by descent; and then, as he took by purchase, his moiety also descended to his heir ex parte paterna; and then the title to the whole will stand as supposed in my former opinion. But if the lands were, by the settlement, limited to Mrs. F. in fee, in default of appointment, so that her eldest son would have taken as heir, if she had not executed her power, then, I conceive, under the authority of the case above cited, he took by descent, and not by the will; unless a devise to an heir-atlaw, and another as tenants in common, prevents the descent as to the moiety devised to such heir, and makes him take by purchase under the will. "Now, I believe, in my former opinion, I supposed this circumstance of the tenancy in common to be an obstacle to his taking by descent, and that, to do so, he must have taken solely as his mother held it. But this latter proposition is certainly wrong; for, suppose a testator devises a moiety, or any other undivided share, of his real estate to a stranger, making no disposition at all of the remaining undivided share, such remaining share will of course descend to his heir-at-law, and he must hold it in common with 1 See Bates v. Brown, 5 Wall. 710. by deeds. GOODALE v. GAWTHORNE. CHANCERY. 1854. [Reported 2 Sm. & G. 375.] THIS was the petition of Elizabeth Goodale, and of Mrs. Moss late Goodale, and her husband, praying that the sum of £273 28. 10d. Consols, and £35 cash, might be divided into thirds, and two thirds thereof paid to the petitioners. John Goodale, who was possessed of certain real estate in the county of Derby, died, on the 1st of April, as to the real estate now in question, intestate. At his death, his widow was enceinte of a son, who was born on the 29th of October, 1848. At the death of John Goodale, his sisters, the petitioners, were his presumptive co-heiresses at law. A suit was instituted on the 18th of November, 1848, to administer the devisee of the undivided share devised. It is clear, therefore, that an heir may take by descent, as tenant in common with a devisee, an undivided part of the estate which his ancestor was solely seised of; and it appears to me to be immaterial, whether the share he so takes is expressly devised to him, or left unnoticed, by the will; for, if expressly devised, he takes it in common, and, if not noticed, he takes it in the same manner; and a devise to two or more as tenants in common, is in effect a devise of one undivided part to one, and of another undivided part to the other; so that under such a devise to an heir and another as tenants in common, the heir takes as if one undivided moiety were devised to the other, and the residue to himself; that is, in the same manner as if no disposition at all of such residue had been expressed in the will; in which case he would have taken by descent; and therefore, the same estate being devised to him in such residue as he would have taken by descent, I think, the general rule, respecting devises to an heir, extends to it. "It has indeed been held, that a devise to the heir and another makes the heir a purchaser; but that seems to be on account of the joint tenancy and benefit of survivorship to the stranger. And it appears, that under a devise to two co-heirs, they take as joint-tenants by the will, and not by descent; and so in a devise to them in common, they take as tenants in common, and not by descent. But, it is evident, under either of these tenures, they take every part of the land devised in a different manner than by descent; whereas, in the case of a devise to the heir and another, as tenants in common, the heir seems to take the part devised to him, just in the same manner as if it had been left to descend to him. I therefore, upon this consideration of the point, am of opinion, that the devise being to the two sons, as tenants in common, was no obstacle to the eldest taking his moiety by descent; and consequently, that if the lands were settled on his mother in fee, so as to descend from her to him, in default of appointment, he took his moiety by descent, and not by the will or settlement; and, in that case, his heir ex parte materna will be entitled to his said moiety.' Fearne, Post. Works, 128-132. In Ellis v. Page, 7 Cush. 161 (1851), land was devised to trustees on certain trusts, and on failure of these trusts in trust to convey the land to the testator's heirs-at-law. The trusts failed, and it was held that the heirs took by descent, and not by devise, and that therefore, under a Massachusetts Statute, the land could be sold to pay legacies. The decision, it is submitted, is unsound: (1) because the devise of the legal estate to the trustees broke the descent, Davis v. Kirk, supra; (2) because even if the devise had been to the heirs directly, the doctrine of Biederman v. Seymour, ante, is good sense and good law. the estate of John Goodale; and on the 12th of January, 1850, it was referred to the Master, to inquire and state what proportions of the rents and profits of the real estates of John Goodale, deceased, had been received by the trustees between the death of John Goodale and the birth of the posthumous son. On the 11th of February, 1850, Master Dowdeswell certified that the sum of £261 3s. 10d. had been so received and paid into court. On the 11th of June, 1851, the widow of John Goodale elected to take an annuity secured by a bond of John Goodale, and her dower, instead of an annuity and legacy given by the will. The question now raised was, whether the petitioners were entitled to two thirds of the fund in court, which arose from rents accruing between the death of the ancestor and the birth of the posthumous heir. Mr. Wigram and Mr. E. Webster, for the petitioners. Mr. Goodeve and Mr. Selwyn, appeared for other parties. THE VICE-CHANCELLOR. [SIR JOHN STUART.] The right of the sisters is admitted by counsel very properly to depend on their having been actually seised of the estate as heirs. The seisin being in them from the death of the ancestor up to the birth of the posthumous son, they were heirs in contemplation of law so long as the posthumous heir was unborn. Lord Coke, in his Commentary, 11 b, says that the descent cast upon the presumptive heir until the posthumous heir is born, does not confer an absolute heirship, but only one of a qualified kind. His words are (the case being that of an uncle), "True it is that the uncle in this case is heir, but not absolutely heir." It is certain that on the birth of the posthumous child, there was an end to the qualified seisin and to all right of entry on the part of the sisters, who had the qualified heirship until the birth of the posthumous child. The law is settled, that, if during the period of this qualified heirship and seisin in the sisters they had entered and had received the rents, as they might have done, an action of account would not lie against them, and they would be entitled to retain what they had received, and which they had lawfully acquired. If, however, they did not obtain possession of such rents, but the rents had remained unreceived by them, their seisin being gone on the birth of the posthumous child before they had received the fruits of their seisin - viz. the rents, the right to the rents in such case is in the absolute heir, who has a right to enter and distrain for them. That is what I infer from the principle as stated by Lord Coke; and the law, as settled in the case of Doe v. Clarke, 2 H. Bl. 399, considers an infant en ventre sa mere as born for all purposes which are for his benefit. Then, it is said, they might bring an action for the rent, but no authority has been cited in support of that proposition; and I apprehend that it would be impossible for them to maintain an action for the rent which the absolute heir had a right to recover by entry and |