Miller v. Gilbert, 144 New York, 68; Rose v. Hale, 185 Illinois, 378; Siddons v. Cockrell, 131 id. 653; Roberts v. Roberts, 140 id. 345; Cooper v. Cooper, 56 New Jersey Equity, 48; Morgan v. Morgan, 41 New Jersey Equity, 235; Snider v. Newsom, 24 Georgia, 139; Bodwell v. Nutter, 63 New Hampshire, 446; Nash v. Simpson, 78 Maine, 142; Mansfield v. Mansfield, 75 Maine, 509; Derickson v. Garden, 5 Delaware Ch. 323; Bostick v. Blades, 59 Maryland, 231; Clark v. Tennison, 33 id. 85; Selden v. Keen, 27 Grattan (Va.), 576; Boyer v. Allen, 76 Missouri, 498; Gaven v. Allen, 100 id. 293; Hibbits v. Jack, 97 Indiana, 570; Harmon v. Brown, 58 Indiana, 207; Summit v. Yount, 109 Indiana, 506; Levengood v. Hoople, 124 Indiana, 27; Harmon v. Brown, 58 Indiana, 207; Kaufman v. Breckinridge, 117 Illinois, 305; Martin v. Seigler, 32 South Carolina, 267; Duncan v. Philips, 3 Head (Tenn.), 415; Herd v. Catron, 97 Tennessee, 662; Cornell v. Lovett, 35 Pennsylvania State, 100; Brotzman's Appeal, 133 Pennsylvania State, 478; Beddard v. Harrington, 124 North Carolina, 51; McKrow v. Painter, 89 id. 437. The same rule applies to a bequest or devise by a wife to her husband upon condition that he shall not marry again. Stevens v. Gardner, 88 Iowa, 307; Cornell v. Lovett, 35 Pennsylvania State, 100.

If the will shows that it was the testator's intention to provide for his widow, daughter, or other female beneficiary so long as she should remain single, but that upon her marriage he expected her husband to support her and for that reason alone, a conditional limitation over upon that event, or a condition that the gift should continue only till the happening of that event, is held not to be void. Herd v. Catron, 97 Tennessee, 662; Mann v. Jackson, 84 Maine, 400, 16 L. R. A. 707; Denfield, Petitioner, 156 Massachusetts, 265; Bruch's Estate, 185 Pennsylvania, 194; Cornell v. Lovett, 35 id. 100; Hotz's Estate, 38 id. 422; Courter v. Stagg, 27 New Jersey Equity, 305; Graydon v. Graydon, 23 New Jersey Equity, 229; Morgan v. Morgan, 41 New Jersey Equity, 235; Bodwell v. Nutter, 63 New Hampshire, 446; Thayer v. Spear, 58 Vermont, 327; Born v. Horstmann, 80 Cal. 452. See Page on Wills, s. 681.

In Fuller v. Wilbur, 170 Massachusetts, 506, a testator gave by will to his wife, "all my real and personal estate of whatever name, for her sole use and benefit so long as she remains my widow, except the legacies to my children," which were ten dollars to each child. It was held that the wife took a life estate determinable on her marrying again. The Court, per MORTON, J., said: "There is some ground perhaps for saying that, with the exception of the legacies to the children, she took the entire estate absolutely and in fee, subject to be devested of it if she married again; but we think that the better construction, and the one which is according to the weight of authority here and elsewhere, is that she took a life estate determinable on the happening of that event."

A distinction has sometimes been taken between a bequest or devise limited to continue so long as the testator's widow shall remain unmarried, and a bequest or devise upon condition that if she marries again, the property shall go over to another; the former being a valid limitation, and the latter a void condition. Hotz's Estate, 38 Pennsylvania State, 422; Kromer's Estate, 22 Pennsylvania Co. Ct. 327; Bruch's Estate, 185 Pennsylvania State, 194; Pat

No. 20. Mandeville's Case, Co. Litt. 26 b.- Rule.

ton v. Church, 168 id. 321; Redding v. Rice, 171 id. 301. But this distinction is not generally regarded, the condition as well as the limitation being regarded as valid.

A condition, the tendency of which is to induce a husband and wife to live separate, or to be divorced, is, upon grounds of public policy and public morals, void. Wright v. Mayer, 47 App. Div. (N. Y.) 604; Whiton v. Harmon, 54 Hun (N. Y.), 552; O'Brien v. Barkley, 78 Hun (N. Y.), 609, 28 N. Y. Supp. 1049; Conrad v. Long, 33 Michigan, 78; Ransdell v. Boston, 172 Illinois, 439; Hawke v. Euyart, 30 Nebraska, 149, 27 Am. St. Rep. 391. In Ransdell v. Boston, 172 Illinois, 439, a condition in a will whereby the life estate given the testator's son is to be enlarged to a fee in case he should become divorced from his then wife, was held not to be void, as against public policy and good morals, where for several years prior to the execution of the will the son and his wife had lived apart while divorce proceedings were pending between them.

SECTION IV. Limitations of Estates.

No. 20. MANDEVILLE'S CASE.

RULE.

A DEVISE to the heirs of the body of the testator, or of another not taking any prior gift, confers an estate tail devolving (until barred) upon all persons who successively answer the description of heirs of the body.

Mandeville's Case.

Co. Litt. 26 b.

[This case is cited and commented on by COKE as follows:]John de Mandeville by his wife Roberge had issue Robert and Mawde. Michael de Morevill gave certain land to Roberge and to the heires of John Mandeville her late husband on her body begotten, and it was adjudged that Roberge had an estate but for life, and the fee taile vested in Robert (heires of the body of his father being a good name of purchase), and that when he dyed without issue Mawde the daughter was tenant in taile as heire of the body of her father, per formam doni, and the formedon which he brought supposed, quod post mortem præfatae Robergia et Roberti filii et hæredis ipsius Johannis Mandeville et hæredis ipsius Johannis de præfata Robergia per præfatum Johannem pro

No. 20. - Mandeville's Case, Co. Litt. 26 b. Notes.

creati præfatæ Matildæ filiæ prædicti Johannis de præfata Robergiâ per præfatum Johannem procreatæ sorori et hæredi prædicti Roberti descendere debet per formam donationis prædictæ. And yet in truth the land did not descend unto her from Robert, but because she could have no other writ it was adjudged to be good. In which case it is to be observed, that albeit Robert being heire took an estate taile by purchase, and the daughter was no heire of his body at the time of the gift, yet she recovered the land, per formam doni, by the name of heire of the body of her father, which notwithstanding her brother was, and he was capable at the time of the gift; and therefore when the gift was made she tooke nothing but in expectancy, when she became heire per formam doni.

ENGLISH NOTES.

In Wright v. Vernon, Vernon v. Wright (1854-1858), 2 Drew, 439, 7 H. L. C. 35, the question arose out of a devise "to the right heirs of my grandfather S., deceased, by M. his second wife, also deceased, for ever." It was decided by Sir RICHARD T. KINDERSLEY, V.-C., and by the House of Lords, that the devise had the same effect as if an estate tail special had been created in the grandfather S. Sir RICHARD T. KINDERSLEY, after referring to Fearne's Contingent Remainders, explained the rule in Mandeville's Case as follows (2 Drew, 452): "Where, without any estate of freehold limited to the ancestor, lands are limited to his heirs special, the terms used to designate the class of special heirs to whom the lands are given have a two-fold operation, viz., first, they serve to point out who is to be the first taker, and secondly, they serve also to specify and prescribe what estate such first taker is to have. By virtue of their first operation, the first taker must be the person who answers the description of the special heir at the time when the gift comes into operation, and such person must take by purchase; and by virtue of this second operation, the estate which such first taker is to have must be such an estate as will descend to the whole series of persons who shall successively answer the description of the special heirs of the ancestor named, in the same manner as if the limitation to the heirs special had been preceded by an estate of freehold limited to the ancestor, and so the estate tail had originally vested in, and had descended from the ancestor." And he further points out that the decision in Mandeville's Case was not the inevitable result of the statute de donis, which peremptorily directed that the will of the donor should always for the future be observed. For he says (2 Drew, 455): "When the estate was limited to the heirs

special of a particular ancestor, without any estate of freehold limited to the ancestor himself (either expressly or by implication), it was impossible to effectuate that expressed will of the donor, and to make the estate pass through the whole series of the special heirs designated, except by regarding the limitation as if it were an estate tail which had originally vested in, and had descended from the ancestor himself, and yet the first taker must take as purchaser, because no estate did in fact vest in or descend from the ancestor."

The rule was applied in Allgood v. Blake (1872, 1873), L. R. 7 Ex. 329, 8 Ex. 160, 41 L. J. Ex. 217, 42 L. J. Ex. 101, where, after a long series of limitations, there was a gift to "all and every other the issue of my body." The Court construed "issue" to mean "heirs of the body" of the testator; and applied the rule in Mandeville's Case, so as to create a vested remainder in the testator's eldest son as heir of entail as if the estate had been entailed upon the testator, and the heirs of his body; and that the prior estates having expired, and the son having executed a disentailing deed, he became absolutely entitled.

The rule describes the effect of a devise not of common occurrence; and there appears to be no reported decision relating to such a devise made since the Wills Act (1 Vict. c. 26) came into operation (1st January, 1838). The learned editor of Jarman, 5th ed. p. 906 n., suggests that the 28th section of the Act might affect the operation of such a devise; but it is difficult to see how this could be, or how a devise to heirs of a person not described as taking any estate could be construed as a "devise to any person without any words of limitation: "— although it appears, as observed by Sir R. T. KINDERSLEY, that the first taker must take as a purchaser.

-

AMERICAN NOTES.

Estates Tail. - The definition of an estate tail in the principal case is applicable to this estate as it exists in America, though at present this estate is so readily convertible into an estate in fee simple, that it is seldom met with. In Alabama, Florida, Georgia, Indiana, Kentucky, Michigan, Minnesota, Mississippi, Montana, New Hampshire, New York, North Carolina, North Dakota, Oklahoma, Pennsylvania, South Dakota, Tennessee, Virginia, West Virginia, and Wisconsin, by statutes, estates tail are converted into estates in fee simple in the first taker, the words of procreation being wholly disregarded. In other states, as Arkansas, Connecticut, Illinois, Missouri, New Jersey, New Mexico, Ohio, and Vermont, the first donee in tail takes a life estate, and the heirs of the body of such donee take as purchasers with remainder in fee simple. In other states, as Delaware, Maine, Maryland, Massachusetts, and Rhode Island, the statutes enable the tenant in tail to bar the entail by a conveyance in fee simple. 1 Jones on Real Property, s. 613. "While in theory an entail secures a succession in perpetuity to the oldest VOL. XXV. — -41

son, and to the oldest son of the oldest son, in effect there is no such succession. Continuous entail ceased in England under the operation of recoveries at common law; and in this country, where they have not been wholly abolished by statute, under the operation of statutes enabling the tenant in tail to bar the entail by deed, continuous entails have ceased to exist. There may be temporary entailments, where estates tail have not been converted into other estates by statute, but, owing to the facility with which they may be barred, they are seldom of long duration." 1 Jones on Real Property, s. 612. In Price v. Taylor, 28 Pennsylvania State, 95, 105, 106, Lowrie, J., saiḍ: “If it was an error to admit the eldest son as the heir to an estate tail general, under our law, it was perhaps an inevitable one, for, inheriting all our forms of wills and conveyances, and of legal practice, from England, we could not, if we would, at once build up a perfectly consistent system of legal principles founded on our new circumstances. . . . The reason why estates tail descended to the eldest son under our old laws of descent was, because the descent of such estates was not provided for under our old statutes, and therefore the old common law alone furnished the rule for them. . . . The judicial adoption of the English law of primogeniture in estates tail has entirely ceased to have any support in our laws and customs, and is now plainly incompatible with them all. Therefore, we can no longer presume, from general words of entailment, that a lineal descent according to the English law is intended."

·

A devise to A. and heirs of his body, and to their heirs and assigns forever, gives A. an estate tail. "A consideration, which greatly strengthens this conclusion, arises from the peculiar phraseology of this devise. It is not to A. and the heirs of her body,' and in the habendum to hold to her heirs generally, which is the case put by Lord COKE (Co. Lit. 21 a); but is to the heirs of her body, and to their heirs and assigns. The distinction is obvious. In the former case, in failure of her issue, the estate tail would cease by its own limitation, and then the gift over, to her heirs general, might take effect as a remainder; so that it would be an estate tail in her, with a fee simple expectant. Otherwise, when it is to the heirs of her body, and then to their heirs generally, the case supposes the first heir in tail to have issue, who survive him, and who can take as heirs in tail." Wight v. Thayer, 1 Gray (Mass.), 284, 288; Buxton v. Uxbridge, 10 Metcalf (Mass.), 87; Malcolm v. Malcolm, 3 Cushing (Mass.), 472.

A devise to one and his heirs and assigns, but if he shall die without issue then over, creates an estate tail by implication. Ide v. Ide, 5 Massachusetts, 500; Cheseboro v. Palmer, 68 Connecticut, 207; Hertz v. Abrahams, 110 Georgia, 707; Hall v. Priest, 6 Gray (Mass.), 18; Gifford v. Choate, 100 Massachusetts, 343; Albee v. Carpenter, 12 Cushing (Mass.), 382. It shows that by "heirs" was meant "issue" or " heirs of the body." And a direct devise to the issue of the first taker upon her death would seem to lead even more strongly to the same result. But it is apparent that it was not the intent of the testator to give an estate tail where the gift was to his daughter, and upon her decease to her issue in equal portions; that is, to take at once as tenant in common, which is not the mode in which an estate tail is to be held and enjoyed. Gifford v. Choate, 100 Massachusetts, 343.