duly executed to pass freehold estates, and in the will were the following clauses. And as to my real and personal estate, I give and devise the same in manner following, (that is to say,) "First, I give and devise unto my grand-daughter, Ann Alcock, and to her heirs and assigns for ever, all those my arable, meadow, or pasture lands, hereditaments and premises, situate, lying and being, in Leverington, in the isle of Ely, in the county of Cambridge, which I purchased of the trustees of Mr. Daniel Swaine; but in case it shall happen, that my said grand-daughter, Ann Alcock, shall depart this life unmarried, and without issue of her body lawfully to be begotten, then I give and devise the said arable, meadow, or pasture lands, hereditaments, and premises unto my daughter Ann, the wife of William Tatam, her heirs and assigns for ever. Also I devise unto my said daughter, Ann Tatam, all the residue and remainder of all my freehold and copyhold messuages, lands, &c. and with their and every of their rights and appurtenances, the copyhold part thereof I have duly surrendered to the use of this my last will, to hold the said freehold and copyhold messuages, lands, &c. with their appurtenances, unto my daughter, Ann Tatam, for the term of her natural life; and after her decease, then I give the said messuages, lands, &c. with their appurtenances, unto John Tatam, an infant, the only son of my daughter, Ann Tatam, for the term of his natural life; and after the determination of that estate by forfeiture or otherwise, then I give and devise the said messuages, lands, &c. with their appurtenances, unto Henry Boulton and James Measure, and their heirs, during the life of the said John Tatam, upon trust to preserve 1822. MEASURE against GEE. 1822. MEASURE against GEE. preserve the contingent uses and estates hereinafter limited and devised from being defeated and destroyed, and for that purpose, to make entries or bring actions as the case shall require: but nevertheless, to permit the said John Tatam, and his assigns, during the term of his natural life, to receive and take the rents and profits thereof, for his and their own use; and from and after the decease of the said John Tatam, then I devise the said messuages, lands, &c. with their appurtenances, unto the heirs of the body of the said John Tatam, lawfully to be begotten, his, her, and their heirs and assigns, for ever; but in case it shall happen, that there shall be failure of issue of the body of the said John Tatam lawfully to be begotten, then there was a devise over to the two daughters of Anne Tatam." The question for the opinion of this Court was, whether John Tatam, the son, took an estate tail in remainder in the estate and premises in question, under and by virtue of the will of John Hardy. The case was argued at the sittings before last Michaelmas term by Preston for the plaintiff. By the settled rules, of law John Tatam took an estate tail under this will. It is a general rule, that when an estate is limited to one for life, a subsequent limitation to the heirs of the body of that person creates an estate tail in the donee for life. This is laid down in Mr. Fearne's Essay on Contingent Remainders, p. 161. 6th edit., where all the authorities on the subject are collected. The rule in Shelley's case imposes this effect on the several gifts. Morris v. Ward (a), Broughton v. Lang (a) 8 Term Rep. 518. ley ley (a), Goodright v. Pullyn (b), and Coulson v. Coulson (c), are the more relevant authorities. In the last case the devise was to Robert Coulson for life; remainder to trustees during his life, to preserve contingent remainders; remainder to the heirs of the body of Robert Coulson. It was held, that by the devise to the heirs of his body, he took an estate tail; and the authority of that case was confirmed by the decision in Hodgson v. Ambrose. (d) But the case of Goodright v. Pullyn (e) is the authority more immediately applicable. The language of the Court there is full, clear, and precise in favour of the plaintiff, and shews that these limitations created an estate tail. In that case, and also in Shelley's case (ƒ), from which the general rule derives its denomination, there were words of superadded limitation; and whether the second gift be to heirs males of the body and their heirs males of their bodies, or their heirs of their bodies, or their heirs, does not prevent the application of the rule. These words of superadded limitation will convert the words "heirs or heirs males of the body," into words of purchase or designation. In all these cases the words of superadded limitation were rejected, as far as they did not quadrate with the intention of creating an estate tail, by means of the words "heirs or heirs male of the body." So in this case, the words “ his, her, and their heirs for ever, " must be discarded. The words of limitation over establish the general intention, that John Tatam was to be the stock of the family and the donee in tail. In 1822. MEASURE against GEE. 1822. MEASURE against GEE. order to convert the words "heirs of the body" into words of designation, giving interests by purchase, it would be incumbent on the defendant to shew that these terms were used in the sense of "children." No such intention can be collected from this will, and that construction would, in this case, defeat, not advance the intention. It would be very inconvenient, independently of disturbing settled rules, to treat two or more children as joint-tenants in fee; and yet that is the only construction which the defendant can aim to establish. In Sugden, contrà. The law is not now as laid down by Mr. Fearne. The case of Coulson v. Coulson came under the consideration of the Court in Hodgson v. Ambrose, and the Court adhered to it only because it had stood as law for so many years. The old rule, however, is broken in upon by several decisions. Doe v. Perryn (a), the estate was devised to A., the wife of B., for life, remainder to trustees to preserve contingent remainders, remainder to the children of A. and B. and their heirs for ever, to be divided among them equally, and if one child, to such only child, and his or her heirs for ever, and for default of such issue, remainder over. At the death of the devisor, A. and B. had no child. It was held, that the estate limited to their children was a contingent remainder in fee, which, on the birth of a child, vested in that child, subject to open, and let in those that might be born afterwards, and that the remainders over would be defeated by that estate becoming vested, and that the words "for default of such issue" in such a case, meant "for default (a) 3 Term Rep. 484. of of such children." In Gretton v. Haward (a) the de- (a) 6 Taunt. 94. (b) 11 East, 668. (c) 1 Brod. & B. 484. 302 use 1822. MEASURE against GER. |