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LORD ELLENBOROUGH, C. J. If the estate devised to the trustee be an executory devise, the law will cast the estate of the heir on him by descent, until the contingency happens; if the trustee's estate be not an executory devise, I do not see that there is necessarily such an estate of freehold given to him as to break in upon and alter the quality of the estate which the heir would otherwise take.

BAYLEY, J. I am of the same opinion. In all these cases it is desirable that the heir should be in by descent, rather than by purchase; because it is convenient that the property should be assets in the hands of the heir. And the general rule is, that where the heir takes the same estate in nature and quality which the law would give him, he takes by descent. It appears by Mr. Ford's MS. note of Allam v. Heber, though this is not noticed either in Strange (Str. 1270), or Blackstone's report of that case (1 Black. 22), that the court denied Gilpin's Case, Cro. Car. 161, to be law. Impeached, therefore, as Gilpin's Case is, as well by what I have just remarked, as by the authority of Treby, C. J., and Powell, J., it is competent to us to examine the case, and in examining it to ask this question: whether a fee mounted upon a fee turns the first into a base fee? I think that it does not. Here the plaintiff's estate was a good estate in fee, the last an executory devise.

HOLROYD, J., being connected with the parties, declined giving any opinion.1

BIEDERMAN v. SEYMOUR.

CHANCERY. 1840.

[Reported 3 Beav. 368.]

THE MASTER OF THE ROLLS. [Lord Langdale.] 2 In this case the question reserved was, whether the real estate which the testator devised to his heir at law, is to be taken as real assets, for payment of debts, in priority to real estates, by the same will devised to other persons.

The devise to the heir is made subject to the payment of an annuity of £50 to the testator's sister during her life, and after her death to the payment of £1,000 to her two children.

Notwithstanding the devise, and notwithstanding the charges, the heir takes by descent. Chaplin v. Leroux, 5 M. & S. 14. For the purpose of making him take otherwise than by descent, the devise is said to be void; and it is argued for the defendants that the devise is void for all purposes: that no intention can be applied to it: that the

1 In Doe d. Pratt v. Timins, 1 B. & Ald. 530 (1818), there was a devise to the heir, with an executory devise over in case he should not reach his majority. It was held that he took by descent. — ED.

2 The opinion only is given.

attempted devise must be treated as a mere nullity, and the estate therein comprised be considered merely as descended estates, and therefore as assets to be applied for the payment of debts, in priority to estates effectually devised.

But whatever may be the origin of the rule, which gives to the heir by descent, that which the testator has intended to devise; whether the rule be derived from the supposed application of a principle that a man shall not have by gift that which is his own without gift, as some have supposed; or whether the rule be adopted for the benefit of third persons, as of the lord for the preservation of tenure, or of creditors for the payment of their debts; or simply, as Mr. Justice Bayley said in Chaplin v. Leroux, because it is convenient that the property should be assets in the hands of the heir; there seems to be no reason, why, as against the heir, the rule should be extended further than the principle requires.

It cannot be said of estates expressed to be devised to the heir, as of estates not mentioned in the will, that they are "quite out of the scope of the testator's intention, perfectly beside and independent of it," 2 Bro. C. C. 262; it is indeed clear that an estate which the testator says he devised to the heir, is within the testator's intention, and meant to be a benefit to the heir. There is nothing illegal in that intention, and if the rule be founded on the regard due to third persons, as creditors or otherwise, there seems no reason for its application between the heir and other objects of the testator's bounty; and if the effect of the devise be to procure for the heir a contribution from the other devised estates towards payment of debts, which would otherwise have had to be borne by descended estates alone, it cannot be said that the heir obtains by gift something which was his own, without gift.

Courts of justice ought to carry into effect the intentions of testators as far as they can consistently with the rules of law; and in this case, although the rule of law makes the devised estates assets in the hands of the heir, and the creditors may, therefore, resort to this estate in priority to others, and without being embarrassed with the necessity of seeking contribution from other devisees; yet, as it appears by the expressions which the testator has used, to have been his intention. that the devisee, who is heir, should partake of his bounty as well as other devisees, there seems to be no reason why, without prejudice to the claims of creditors or others, the heir should not enjoy the like benefit which is given to other devisees; or why those who claim under the will, and do not appear to be more objects of the testator's bounty, should be permitted to defeat the expressed intention in favor of the heir.

I do not think that the testator's intention can be excluded from the consideration of this question. The intention is not to prevail against the rule of law for the benefit of third persons. A testator cannot, as against creditors, exempt his personal estate from payment of his debts, or prevent his real estates from being assets, by devising them to his

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

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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.
Mr. Rolt, Q. C., and Mr. Speed, for the heir ex parte materna.
Mr. Giffard, for other parties.

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.

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