In this writ of entry, both parties claim title under the will of Barnabas Canedy; so that the case depends on the construction of his will, by which he devised the demanded premises and other lands and tenements, in the manner following: “ I give, grant and convey unto my brother William Canedy’s son, Noble Canedy, during his natural fife, (that is, after the decease of my said wife Elizabeth Canedy) and at his decease to his eldest male heir, an! after his decease and to said male heirs and assigns forever, all and singular my homestead farm in Taunton,” and also the demanded premises.

The cause has been ably argued, and numerous cases have been cited and discussed by counsel, as to the rules of *401construction in like cases, some of which are apparently corn flicting, but which, we think, may be reconciled, so far at least as they bear on the present case, by the application of the general rule that, in the construction of wills, the intention of the testator is to govern, if it may be effectuated by the rules of law.

On the part of the demandant, it has been argued, that by the devise Noble Canedy took an estate for life, and that a contingent remainder in fee was given to his eldest male heir, which vested in the demandant, on the decease of the said Noble, his father; he being then his only male heir. The leading authority in support of this construction is Archer's case, 1 Co. 66 b. That was a devise to Robert Archer for life, and to his next heir male, and the heirs male of the body of such heir male, and it was held that Robert Archer took only an estate for life. Numerous subsequent cases, in support of the same construction, are cited and reviewed by Story, J. in Sisson v. Seabury, 1 Sumner, 235.

On the other hand, it was contended by the tenant’s counsel, that Noble Canedy, the devisee named in the will, took an estate in tail male, according to the rule, in Shelley's case, 1 Co. 93 b, that where an estate of freehold is limited to a devisee or grantee, and by the devise or conveyance an estate is limited, either mediately or immediately, to his heirs, in fee simple or in tail, “ his heirs ” are words of limitation of the estate, and not words of purchase. Numerous cases and authorities have been cited in support of the application of this rule, as the counsel for the tenant contends, to the present case. One of the strongest cases in support of the argument for the tenant is that of Robinson v. Robinson, 1 Bur. 38. In that case, the devise was as follows: “ I bequeath all my real estate to Lancelot Hicks, for and during his natural life, and no longer; and after his decease to such son as he shall have : and for default of such issue, then I give the same to my cousin,” &c. It was held that although the devise tc Hicks was of an estate for life, and no longer, yet by necessary implication, to effectuate the manifest general intent of *402the testator, the will was to be so construed as to give to Hicks an estate in tail male; because the father could not take an estate for life, and the sons successively an estate in tail; as an estate to the heirs male of the body of L. Hicks is implied, though an estate for life only is given to him. Several cases were decided by Lord Kenyon, on the same ground, namely, on the rule of construction, that where a particular intent is indicated, which is inconsistent with the general intent of the will, the former must yield to the latter. See 2 Jarman on Wills, 318, 319. I do not, however, intend to review the numerous cases cited, which would be a useless labor. For the present case must depend on the intention of the testator, if not inconsistent with the rules of law. And that intention must be ascertained by the language of the will; taking into consideration all its provisions bearing on the question. Little assistance can be obtained by consulting a multitude of cases.

Now we have no doubt as to the intention of the testator, in the present case. In the first place, it is clear that he intended to give Noble Canedy, the devisee named in the will, a life estate, for this intention is expressly declared. In the next place, he gives the estate, at his decease, to his “ eldest male heir; ” and the question is, whether the testator intended, by these words, to enlarge the estate given to Noble Canedy, and thereby to create an estate tail in him, or were the words intended to indicate the person who was to take the estate at the decease of the first devisee? And we think the latter intention is manifestly indicated. By “ the eldest heir,” we think the eldest son of the devisee named in the will, who should be living at the decease of the devisee, was intended; for we cannot suppose that any collateral relative of the devisee was intended. The devisee had, at the time of the devise, no children ; but the remainder was not to vest until the death of the devisee of the life estate; and the devise over may reasonably be construed as a prospective provision for his eldest son, who should be living at his decease, in this respect, the devise materially differs from that in *403Wild's case, 6 Co. 16 b. In that case, it was decided, that if A. devises his lands to B. and to his children or issue, and he hath no issue at the time of the devise, the same is an estate tail; for the gift is immediate, and the children or issue could not take, not being in rerum natura; and they could not take by way of remainder, for that was not the intent of the testator — the gift being immediate. In the present devise, the gift to the eldest heir of the first devisee was to take effect, and we think did take effect, by way of remainder, which was contingent and did not vest until the death of the devisee, Noble Canedy; and we are of opinion that the demandant took an estate in tail male. It is true that the intention of the testator is not accurately expressed; but we think there can be no reasonable doubt of the meaning. It is clear that the eldest son or heir of Noble Canedy was to take a remainder. Then follow the words, “ and, after his decease, to said male heirs and assigns forever.” We think that by these words the intention is indicated, that after the decease of the eldest son of Noble Canedy, the estate given to him was to descend to his eldest son, and so from eldest son to eldest son, in perpetual succession. The words “ said male heirs” were intended to designate the eldest male heirs who should take in succession after the death of the first remainderman. These words, therefore, must be construed as words of limitation of the estate in remainder, and not as enlarging the life estate expressly given to Noble Canedy ; and thus all the parts of the will will be consistent. The rule in Shelley's case, accordingly, does not apply to the estate of Noble Canedy, the devisee first named in the will, and he only took an estate for life.

The rule of construction, on this point, is correctly stated by Jarman, and is fully supported by the authorities. “ Though a devise to the next heir male, simply following a devise to the ancestor for life, does not confer on the heir an estate by purchase, (the words being construed as words of limitation,) yet if the testator has ingrafted words of limitation on the devise to the next heir male, he is considered *404as indicating an intention to use the term ‘ heir ’ as a mere descriptio personae ; the superadded words of limitation having the effect of converting the expression ‘ next heir male ’ into words of purchase.” 2 Jarman on Wills, 234. This we consider a very sound rule of construction, and it is decisive in the present case. No one would doubt, that if the devise had been to Noble Canedy for life, and at his decease to his eldest son, and the heirs of his body, the latter would take an estate tail; and we think the words in the will, though not expressed with perfect accuracy, must have the same effect.

Tenant defaulted.