enjoyed the lands for his life. The daughters con- CHAP. xxvIII. tended, that they were the persona designatæ under the devise to the testator's own right heirs, his son excepted; for that the son, who was the proper heir, was plainly and manifestly excluded by the express words. And of this opinion were Lord Mansfield and the rest of the Court of King's Bench, who held, that the words were to be interpreted, as if the testator had said, "Those who would be my right heirs, if my son were dead." This judgment, however, was reversed in the House of Lords, with the concurrence of the Judges present, who were unanimously of opinion, that no person took any estate under the will by way of devise or purchase. This is an extraordinary decision; and high as is the authority of the Court by which it was ultimately decided, its soundness may be questioned, as the will contains not merely words of exclusion in reference to the son, (which, it is admitted, would not alone amount to a devise,) but a positive and express disposition in favour of the person who would be next in the line of descent, if the son were out of the way. In this case, we trace but very faintly the anxiety, generally imputed to judicial expositors of wills, ut res magis valeat quam pereat. It is next to be considered how far the construction of the word "heir" is dependent upon or liable to be varied by the nature of the property to which it is applied. If the subject of disposition be real estate of the tenure of gavelkind, or borough English, or copyhold lands held of a manor in which a course of descent different from that of the common law prevails, it becomes a question, whether, under a disposition to the testator's heir as a purchaser, the intended object of gift is the heir general at common law, or his heir quoad the particular pro Remarks upon Goodtitle v. Pugh. "Heir" in re ference to gavel kind or borough English lands; CHAP. XXVIII. -in reference to personal estate, how construed. "Heirs" ap plied to both real and personal estate. perty which is the subject of the devise; and the authorities at a very early period, established the claim of the common law heir (y); supposing, of course, that there is nothing in the context to oppose the construction. With respect to the personalty, too, it is often doubtful whether the testator employs the term "heir" in its strict and proper acceptation, or in a more lax sense, as descriptive of the person or persons appointed by law to succeed to property of this description. Where the gift to the heirs is by way of substitution, the latter construction has sometimes prevailed; an example of which occurs in the case of Vaux v. Henderson (z), where a testator bequeathed to A. £200, "and, failing him by decease before me, to his heirs ;" and the legacy was held to belong to the next of kin of A. living at the death of the testator. Sir R. P. Arden, M. R., too, in Holloway v. Holloway (a), was strongly disposed to give the same construction to the word "heirs," applied to personalty; though his opinion on another question rendered the point immaterial. But cases of this description must not be understood to warrant the general position, that the word heirs, in relation to personal estate, imports next of kin, especially if real estate be combined with personalty in the gift; which circumstance, according to the principle laid down by Lord Eldon, in Wright v. Atkyns (b), affords a ground for giving to the word, in reference to both species of property, the construction which it would receive as (y) Co. Litt. 10. a., 22. b.; Ro- (*) 1 Jacob. & Walk. 388, n. (b) Coop. 111; S. C. 19 Ves. 269. 4th Ed. 335, where, however, the words of the will being applicable rather to personalty, the construction which obtains, in regard to this species of property, predominated as to both real and personal estate. to the real estate, if that were the sole subject of dis- CHAP. XXVIII. position. Thus, in the case of Gwynne v. Muddock (c), where a testator gave all his real and personal estate to A. for at law," how life; adding, after her death, his "nearest heir at law to "Nearest heir enjoy the same;" Sir W. Grant, M. R., held, that the construed. heir at law took both the real and personal estate, not the realty only, the testator having blended them in the gift. And even where the entire subject of gift is personal, the word " heir," unexplained by the context, must be taken to be used in its proper sense. Nor will the construction be varied by the circumstance, that the gift is to the heir in the singular, and there is a plurality of persons conjointly answering to the description of heir (d). Thus, under the words "to my heir £4000," three co-heiresses of the testator were held to be entitled; Sir J. Leach, M. R., observing, "Where the word is used not to denote succession, but to describe a legatee, and there is no context to explain it otherwise, then it seems to me to be a substitution of conjecture in the place of clear expression, if I am to depart from the natural and ordinary sense of the word 'heir' (e)." The words, "heirs" and "heirs of the body," applied to personal estate, have been sometimes held to be used synonymously with "children"-a construction which, of course, requires an explanatory context. to mean child As, in the case of Loveday v. Hopkins (f), where the "Heirs" held words were:-"Item, I give to my sister Loveday's heirs ren. £6000”—“I give to my sister Brady's children equally £1000." At the date of the will, Mrs. Loveday had two (c) 14 Ves. 488. (e) Mounsey v. Blamire, 4 Russ. 384. (d) See 2 Lord Raym. 829. CHAP. XXVIII. children, one of whom was a married daughter, who afterwards died in the lifetime of the testatrix, leaving three children. Mrs. Loveday was still alive, and her surviving child claimed the legacy. Sir Thomas Clarke, M. R., was clearly of opinion, that the testatrix intended to give the £6000 to the children of Mrs. Loveday, the same as in the subsequent clause to Brady's children, and had not their descendants in view; or if she had, yet as she had not expressed herself sufficiently, the Court could not construe the will so as to let them in to take, His Honor, therefore, held the surviving child to be entitled to the legacy. 25 CHAPTER XXIX. GIFTS TO FAMILY, DESCENDANTS, ISSUE, NEXT OF KIN, of the word THE word family has been variously construed, ac- Construction cording to the subject-matter of the gift and the context "family." of the will. Sometimes the gift has been held to be void for uncertainty. As, in Harland v. Trigg (a), where a testator gave leasehold estates to his brother, "J. H. for ever, hoping he will continue them in the family," Lord Thurlow thought it too indefinite to create a trust, as the words did not clearly demonstrate an object. The testator's brother was tenant for life in remainder, with remainder to his issue in strict settlement, of some freehold lands, and the testator had given some other leaseholds to the same uses; and it was contended, that the leaseholds in question were intended to be subject to the same limitations, so far as the nature of the property would admit; but his Lordship considered that this was not authorized. He said, the testator understood how to make his estates liable to those uses, and intended something different here. So, in Doe d. Hayter v. Joinville (b), where a testator devised and bequeathed residuary real and personal estate (b) 3 East, 172. (a) 1 B. C. C. 142. Devises to when void for family," uncertainty. |