and wife take an estate tail. And Mr. Fearne ob- Rem. 46. serves, that however light or frivolous the distinction 4th ed. in these cases between the word of, and the words on or by, may now appear, yet it having originally, upon principles now obsolete, obtained ground in judicial decisions, the Courts hold themselves bound to observe it. 34. Thus where a limitation was to the husband and wife for their lives, remainder to the first and other sons of the body of the wife, remainder to the heirs of the body of the wife by the husband to be begotten; it was held an estate tail in the wife. But the Court said, if it had been to the heirs which the husband should beget on the body of the wife, it would have created an estate tail in both; for which was cited 19 Hen. VI. 75 a., giving the same reason as Littleton does; because the word heirs was indifferently limited to both. Repps v. Yelv. 131. Gillot, 35. A person, in consideration of marriage, cove- Dunn v. nanted to stand seised to the use of himself and his 4 Term Rep wife for their natural lives, and the life of the longer 431. liver of them; remainder to the use of the heirs on the body of the said wife by the said husband lawfully to be begotten; and for default of such issue, to the use of the right heirs of the husband for ever. A question arose, whether this limitation raised an estate tail solely in the wife, or a joint estate tail in the husband and wife. Mr. Justice Ashurst said, the question depended on positive determinations, rather than on reasoning. If the words of limitation had been-" the heirs of the body of the wife by the husband to be begotten," the case would be otherwise, and the wife would take an estate tail; but as the word was on and not of, all the determinations were the other way; particularly those in 3 Edw. III. and in Effect of a Limitation to the Heirs of the Body of A. Mandevill's 1 Inst. 26 b. Styles; and therefore both husband and wife took an estate tail. If the Court was at liberty to go into the intention of the parties, he should have been inclined to have read the word of instead of on, because the wife ought to be considered as a purchaser, but they were tied down by express authorities. Judgement was given accordingly. 36. An estate tail may be created by a limitation to the heirs of the body of A., provided A. be dead when the limitation takes effect; and will vest in the person answering the description of such special heir. And in case of his death without issue, it will go to the person who would be entitled to such estate, if it had originally vested in the ancestor of the first taker. 37. This doctrine is founded on the authority of the following case in 17 Edw. II.-John de Mandevill, by his wife Roberge, had issue Robert and Maude. M. de Merwell gave certain lands to Roberge, and to the heirs of John Mandevill her late husband, on her begotten. It was adjudged, that Roberge had an estate but for life, and the fee tail vested in Robert, (heirs of the body of his father being a good name of purchase); and that when he died without issue, Maude the daughter was tenant in tail, as heir 2 Mod. 207. of the body of her father; per formam doni. Southcot v. Stowell, Cont. Rem. 110. 38. Mr. Fearne observes, that in the case of a limitation to the heirs male of the body of A., the devolution, after the decease and failure of issue male of the first special heir of A. to other heirs, equally falling within the same description, has been styled a descent per formam doni. But this sort of acquisition of, or succession to, an estate tail, by the heirs male of the body of A., in a collateral line between themselves, is not strictly a descent; nor does it operate as a purchase. It is not strictly or completely a descent, because the estate never attached, or by possibility could attach, in the ancestor, or be derived from or through him. It has not the effect of a purchase, because the estate goes in the same course of succession as it would have done under a descent, exclusive of persons to whom it would have gone, if the heirs male had taken absolutely by purchase. 39. In a subsequent paragraph Mr. Fearne says- Idem, 112. "It seems in truth of a compound or intermediate description, betwixt a descent and purchase. In point of acquisition, it has the quality of the latter, as not being derived from or through the ancestor; but in regard to its course of devolution, it is referrible to the former, as pursuing the very same channel of transmissive succession. It is a sort of entail which, though it first attaches in the special heir, according to the nature of the description, yet terminates not in him and his representatives, of the species denoted, but continues its progress through the whole race of heirs described, in the same course as if it had been an estate vested in the ancestor, descendible from him to his heirs of that description. 40. The usual mode of limiting estates tail in settlements, where an estate for life is given to the ancestor, is, to the use of the first son of the body of the said A. B. by the said C. D. (his intended wife), and of the heirs male of the body of such son lawfully issuing; and for default of such issue, to the use of the second, third, and all and every other the son and sons of the body of the said A. B. by the said C. D. lawfully begotten; severally, successively, and in remainder, one after another, as they and every of them shall be in priority of birth; and of the several and respective heirs male of the body and bodies of all and every such son and sons lawfully issuing; the Usual Mode of limiting Estates Tail. Owen v. Smyth, 2 H. Black. Rep. 594. elder of such sons, and the heirs male of his body issuing, being always preferred, and to take, before the younger of the same sons, and the heirs male of his and their bodies issuing and for default of such issue, &c. 41. In a modern case, there was a limitation in a feoffment to the use of Nicholas Smyth for life, remainder to the use of the first son of the body of Nicholas Smyth lawfully issuing; and for default of such issue, to the use and behoof of the second, third, fourth, and all and every other son and sons of N. Smyth, lawfully issuing, severally and successively, &c.; and of the several heirs male of the body and bodies of all and every such son and sons respectively issuing, &c. Upon a case sent from the Court of Chancery to the Court of Common Pleas, respecting the estate which the eldest son of N. Smyth took under this limitation, Lord Chief Justice Eyre said— "I think this is one of the clearest cases I ever saw : there is a demonstration plain on the face of the feoffment, that it was the intent of the parties that an estate tail should be limited to the eldest son of N. Smyth. The argument on the part of the defendant has occasionally shifted; sometimes admitting the intent, but contending that the words used were not sufficient to effectuate that intent, which I thought was the true way of considering the question; and sometimes denying the intent itself. But no man can read this deed without seeing the intent I have mentioned; though by some strange blunder, the usual words are omitted. If, indeed, it had stopped at the limitation to the first son of Nicholas, I should have agreed with the counsel for the defendant; for it certainly does not follow, that because we can see an intent on the face of a deed, therefore that the words used are sufficient to effectuate that intent. But the intent here does not rest on the first expressions; but the other part of the deed respecting the trusts and other limitations, refer to an estate tail in the first son of N. Smyth. The intent then being plain, the question is, whether we can find sufficient words? I, for one, adhere to the rule which forbids the raising estates by implication in deeds, and think that we ought not to grant the same indulgence to inaccuracy, in the construction of deeds, as we do in wills. But here it is not necessary to resort to implication, or to inquire whether the same latitude is to be allowed to conveyances to uses, as to wills; for here there are strict technical words, capable of being applied to the limitation of the first son of the body of N. Smyth, so as to give him an estate tail. The limitation is to the first son, and for default of such issue, the whole line of sons is taken in, without any particular limitation to them, and the heirs of their bodies nominatim; but it is to the several heirs male of the body and bodies of all and every such son and sons respectively issuing. Fortunately it is not said, to the heirs male of the body and bodies of such second, third, and other sons, &c. If it had been so, it could not perhaps have been got over. But the limitation is to the heirs male of the body and bodies of every such son. Now the case of Doe v. Martin is an authority to ante. warrant the application of those words to the limitation of the first son of N. Smyth, as well as to the others. But this case is stronger than Doe v. Martin; for it does not even require the assistance of punctuation. Upon the whole, therefore, it is clear that the plaintiff took an estate tail under the limitation in the deed to the first son of the body of N. Smyth." The other Judges concurring in this opinion, the |