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light of a set of instructions merely for the purpose of a
a Yates J., in Perrin v. Blake. '
c Fearne, 141, 175--181.
Morgan, on the ground, that the case before Lord Hardwicke was not the case of an executory trust. It is settled, that the same construction ought to be put upon, and the same rule of law applied to, words of limitation, in cases of trust and of legal estates, except where the limitations were imperfect, and something was left to be done by the trustee, or, in other words, except the trust was executory, and not a trust executed. If a limitation in trust was perfected, and declared by the testator, it receives the same construction as an estate executed.
There are several cases in which, in a devise, the words heirs, or heirs of the body, have been taken to be words of purchase, and not of limitation, mopposition to the rule in Shelley's case. (1.) Where no estate of freehold is devised to the ancestor, or ne is dead at the time of the devise ; in that case the heir cannot take by descent when the ancestor never had in him any descendible estate. It is the same thing if the ancestor takes only a chattel interest by the devise, for if there be no vested estate of freehold interposed between the term of the ancestor and the estate of bis heirs, the latter can take only by way of executory devise; and if there be such a vested estate, the contingent remainder to the heir is supported by the intermediate estate, and not by the chattel interest of the ances. tor. (2.) Where the testator annexes words of explana
a 1 Bro. 206.
b in Papillon v. Voice, 2 P. Wms. 471. Lord King very clearly illustrated the distinction between executory and executed trusts. Where the devise was of lands to B. for life, with remainder to trustees, to support contingent remainders, remainder to the heirs of the body of B., the limitation was held to be an estate tail in B.; but so far as the will directed lands to be purchased, and settled in the same way, it was an executory estate, or trust, and the intention was to govern, and not the rule of law.
c Sir Thomas Tippen's case, cited in 1 P. Wms. 359. Co. Lill: 319. b.
tion to the word heirs, as to the heirs of A. now living, showing thereby that he meant by the word heirs, a mere descriptio personarum, or specific designation of certain individuals ;" or where the testator superadds words of explanation, or fresh words of limitation, and a new inheritance is grafted upon the heirs to whom he gives the estate. Thus it is in the case of a limitation to A. for life, or for life only, and to the next heir male of his body, and the heirs male of such heir male; and in the case of a devise of gavelkind lands to A., and the heirs of her body, as well female as male, to take as tenants in common. In such cases, it appears that the testator intended the heirs to be the root of a new inheritance, or the stock of a new descent, and the denomination of heirs of the body was merely descriptive of the persons who were intended to take.
The great difficulty has been to settle when the rules and when the intention in opposition to the rule, shall pre.. vail. We have seen the effort that was made by Lord Hardwicke in Bagshaw v. Spencer, to allow the rule to be controlled by the intention of the testator, and in the great case of Perrin v. Blake, the Court of K. B. made the rule yield to the testator's manifest intent, even where the limitation was of a legal, and not of a trust estate. In that case, the testator declared, in his will, his intent and meaning to be, that none of his children should sell his estate for a longer time than their lives, and “ to that intent" he devised a part of his estate to his son John, for and during the term of his natural life, remainder over during his life, remainder to the heirs of the body of John, with
a Burchett v. Durdant, 2 Vent. 311. Carth. 154. 8. C. b Archer's case, 1 Co. 66. Lisle v. Gray, 2 Lev. 223. T. Raym. 315. S. C. Luddington v. Kime, 1 Lord Raym. 203. Backhouse v. Wells, 1 Equ. Cas. Abr. 184. pl. 27. Doe v. Laming, 2 Burr. Rep. 1100. Mr. Justice Blackstone's argument in Perrin v. Blake, Harg'. Law Tracts, 504, 505.
< 1 Col. Jurid. No. 10. 4 Burr. Rep. 2579.
remainders over. The question was, whether the son took an estate for life, or an estate tail, under the will; and that depended upon the further question, whether the words heirs of the body were, as used in that will, to be taken to be words of purchase to effect the manifest intent of th. will, or words of limitation, according to the rule in Shel ley's case. A majority of the court decided that the intent was to prevail. On error to the Exchequer Chamber, the judgment of the K. B. was reversed by a large majority of the judges, and upon a further writ of error to the House of Lords, the dispute was at length compromised, and a non pros. entered on the writ of error by consent. The result of that famous controversy tended to confirm, by the weight of judicial authority at Westminster Hall, the irresistible pre-eminence of the rule, so that even the testator's manifest intent could not control the legal operation of the word heirs, when standing for the ordinary line of succession as a word of limitation, and render it a word of purchase. If the term heirs, as used in the instrument, comprehended the whole class of heirs, and they became entitled, on the death of the ancestor, to the estate, in the same manner, and to the same extent, and with the same descendible qualities as if the grant or devise had been simply to A. and his heirs, then the word heirs is a word of limitation, and the intention will not control the legal effect of the word. The term must be used as a mere designation of one or more individuals, or a new import given to it by superadded, or engrafted words of limitation, varying its sense and operation, in order to make it a word of purchase.a
a The case of Perrin v. Blake was first brought into discussion before the K. B. in 1769, and decided there in February, 1770, but the litigation upon that will involving merely the validity of a widow's jointure of 1000 pounds a year, was first commenced by an action of ejectment in the Supreme Court of the island of Jamaica, as far back as the year 1746; and after the question had travelled, in two eject
In Perrin v. Blake, the judges considered the intention of the testator that his son should take only an estate for life, to be manifest; and, assuming that fact, they insisted, that in the construction of wills the intention was always emphatically regarded. They were for confining the rule in Shelley's case within its exact bounds, especially as the reason and policy of the rule had ceased; and they relied upon a series of cases, principally in chancery, to show that words of limitation had, in particular cases, and in deeds, as well as in wills, been held to be words of purchase, and controlled in their ordinary meaning, by superadding explanatory words denoting a different species of heirs to have been intended. The strongest case in favour of the decision was Bagshaw v. Spencer, before Lord Hardwicke, in 1748, and the most difficult one to surmount, because the one of the most point and authority against the innovation upon the rule, was Coulson v. Coulson, before the K. B. in 1744. Lord Mansfield denied, as he had done before in Doe v. Laming, that there was any solidity in the distinction between trusts executed and trusts executory; and he held, that all trusts were executory, because a trust executed was within the statute of uses. He insisted, also, that there was no sense in the distinction between the trust
ment suits, through the Supreme Court, and the Court of Appeals and Error in Jamaica, it passed the Atlantic on appeal in each suit to the king in council. After a reversal in one suit, a new ejectment was instituted in the island of Jamaica, and it passed through the Court of Appeals and Errors there, and back again to the king in council, and then, upon recommendation, the question was brought before the K. B. as already stated. The final termination (by mutual consent) of this protracted litigation, was in 1777, after an exhausting strife of upwards of thirty years. See Harg. Law Tracts, 489–493. in the notes.
a Archer's case, 1 Co. 66. Waker v. Snowe, Palm. 359. Lisle v. Gray, 2 Lev. 223. and these two last cases arose upon deeds. Backhouse v. Wells, 1 Equ. Cas. Abr. 184. Luddington v. Kime, 1 Lord Raym. 203. Bagshaw v. Spencer, 1 Coll. Jurid. No. 15.