Lyles v. Digges's Lessee

delivered the opinion of the court. This case depends upon the construction of the will of Charles Bigges, dated the 28th of January 1742, which inter!alia has the following devise: “Item, I give and beepeath all that my land or messuage, with the appurtenances whereon I now dwell, called Warburton Manor, as also all that tract of land called FranJdand, adjoining thereto, to my loving son William Bigges, to hold to him during his natural life; and from and after his decease, I give all the said messuage, lands and tenements, to my dear grandson Charles Bigges, eldest son of the said William Bigges, and from and after the decease of my said grandson Charles, then to remain to the first son of my said grandson, and the heirs of the body of such first son lawfully issuing; and for default of such issue, then to the «se and behoof of the second, third, fourth and fifth, amt all and every other sons of my said grandson Charles, to "be lawfully begotten, the elder of such son or sons, and the heirs of his body lawfully issuing, always to be preferred, and to take before the younger of such sons, and the heirs of his body, and for default of sach issue, then I give the same to my grandson Thomas,-second son of the said William Bigges, for and during the term of his natural life, and after his decease, to remain to his issue in tail, in such manner as I have limited the same to my grandson Charles, and his issue; and for default of such issue, then to remain to my grandson George, third son of the said William Bigges, for and during the term of his natural life, and after his decease, to be and remain to his "issue in tail, in the same manner as before limited, for the *368use of my grandson Charles', and for default of such issuej then to remain to my own right heirs forever.'5 And this question is, whether Thomas Digges took an estate for life only, or an estate tail?. In the exposition of wills, it is a general rule, that the intention of a testator expressed in his will, shall prevail, if consistent with the settled rules of .law. .... . , .

For the appellant it is contended, that the devise to Tho’mas Digges, &c. is within the rule laid down in Shelley’s case, “that where the ancestor takes an éstate of freehold by any gift or conveyance, and in the same gift or conveyatice an pstate.is limited either mediately or immediately to his heirs, in fee; or in tail, the word Heirs is a word of limitation of the estate; and riot a word of purchase,55 which as a known and established rule of law controls 3md governs it, arid that he took an éstate tail.

The first inquiry to be made is; how the deviáé to Thomas Digges should be construed in relation to the previous devisé to Charles Digges? that is, whether it is to be taken as an entirely unconnected disposition, to be construed alone, without reference to any other, the words to ^remain to liis issue in tail,55 denoting not only thé estate intended to be passed; but the manlier also in which it should pass; and the subsequent words “in such manner as I have limited the samé to my grandson Charles and his issue,55 as explanatory only of the previous limitations to Charles arid his heirs. And it seeiris to be perfectly clear, that the lattér wórds were introduced by way of reference to the limitation to Charles Digges, and his sons; for the meaning of thé testator, in the use of the WOrds, “to remain to his issrié in tail,55 after the limitation to Thomas Digges for life; and construed, as it should be, with that reference, the whole clause must be understood, as if ih placé of the words “his issue in tail,55 the words of the preceding limitations'to Charles Digges, arid his first arid other sons, &c. were particularly repeated, which is at variance with no known principle of construction. On the contrary, it is a rule in the interpretation of wills, that the whole of the instrument shall be taken and examined together, in order to arrive at the' intention of the testator, which shall prevail if there be apt words to effectuate it; and it is settled that even the technical word “heirs55 may by reference to a preceding distinct limitation, be qualified *369and restrained to mean “sons.” The words “in such manner as I have limited tíié same to my grandson Charles, and his issue,” are manifestly words of relation, and mean. ceio the first son of Thomas,” &c. and so on, us in the words of the limitations, "to the first and other sons of Charles, the word “issue” there used being, by reference, synonymous to sons; and whatever estate Charles Digged took, whether in tail, or for life only, the same estate was given to Thomas. What estate then did Charles Digges take under the will of his grandfather? Admitting the rule in Shelley's case, though in terms applied to conveyances by deed, to be equally applicable to limitations in Wills, as it certainly is, it remains to be seen whether this case is within that "rule.

To bring it within the rule, the word “issue,” “for default of such issue,” is resorted to to explain the sense in which the word “son” is used, as a'word of more extensive signification, and is relied upon ás being synonymous to the word heirs. That word, in the place where it is first found, 'immediately "following the limitation to the first son of 'Charles Digges, and the heirs of his body, is used in relation to the heirs of the body of that son, and by force of "the relative word such, is tó be understood to mean “heirs;” that is, 'the heirs of the body of the first son of Charles, which surely can have no effect upon the sense in which the words “first son” are used. Or if it should be coll* strued to relate to the first son. of Charles, as well as to the heirs of the body of such first sou, still it would be restrained by the same relative term “such,” tornean “son.” And the same word afterwards used, and explained by the accompanying word “such,” relates to, and is restrained to mean the first and other sons of Charles Digges, and the heirs of the bodies of such sons respectively; but-if it were not so, it by no means follows that the word “issue” would have the effect to bring this case within the rule in Shelley's case, being sometimes a word of limitation, and sometimes of purchase, in a will, according to the context, and to borrow the language of Mr. Fearne, “of less technical force” than the word “heirs” in the plural number, and is not ex vi termini within the rule. "

It is not, however, our purpose to inquire minutely to what cases the rale is, or is not applicable, that would lead to an almost endless examination; but briefly whi flíer this *370¡particular case is within it. And in order t.o arrive at & correct conclusion, it would seem to be only necessary to look to the leading principle of the rule; which is, that the limitation must hot be to an individual or individuals of the family of the person to whom the life estate is giveii, as á bon; sons or children, but must be to hiá heirs, general of special, and so extend fo and comprise the whole line of described heirs, as a class or denomination of persons id take in succession, as that the person who takes after the tenant for life; whoever he may be, must be one who indiscriminately answers the relative description of heir general of special, (as the case may be,) 'of the ancestor referred to, and takes eo nomine, or technically in that character only; and that, there must be nothing in the limitation to restrain the operation of it to the person so first taking, or his representatives as such, but that it must reach to; kind equally comprehend all other persons successively an- , steering the same relative description, and entitle them to take under it eo nomine and by virtue only of such relation to the ancestor. Doe vs. Colyear, 11 East, 564. Preston on Estates, ch. 3: Fearne on Remainders, sec. 5. As in the particular case of Shelley, where the limitation was “to Edward Shelley for the term of his life, without impeachment of waste; and after his decease to the uste of Mr. Caril and others, for 24 years] and after the said 24 years ended; then to the use of the heirs males of the body' of the said Edward Shelley lawfully begotten, and of the heirs males of the body of such heirs males lawfully begcrt- ' ten; and for defanlt,” &c.

There the limitation to the use of the heirs male of the body of Edward Shelley lawfully begotten, not being confined to fine or more persons, in whom the character of heirs should first be fulfilled, but embracing all possible heirs of the giveii description, as a class of persons to take successively, and in that character only, Edward Shelley was held to take an estate tail, notwithstanding the super-added words of limitation “to the heirs males of the body of such heirs males lawfully begotten';” &c; they .being of the same import with the preceding words of limitation," and virtually included in them; and not inconsistent with the nature of the descent pointed out by them.

But if they had provided a different order of succession-from ths^described by the first limitation ‘‘to the use ef *371the heirs males of the body of Edward Shelley lawfully-begotten,” and could not have been construed to mean the heirs in succession of the first named heirs, as heirs of Edward Shelley, then Edward Shelley would have taken an, estate for life only. As in the case put by Anderson in, Shelley’s case of a limitation to the use of A for life, remainder to the use of his heirs, and of their heirs female; the superadded words of limitation, “and of their heirs female,” denoting a different species of heirs from that described by the. preceding vifords “his heirSj’? the one being a limitation in fee simple, and the other in tail female; the superadded words of limitation, in such a case, manifesting the intention of the testator, that the first taker should only have an estate for life, and that the words “his heirs,” were only used to designate those who should form, the; root of a‘new inheritance.

Where there is a limitation to an individual or individuáis of the family of the first taker, as to a sou, sons or children, with superadded words of limitation to his er their heirs in foe or in tail, such selection being a manifestation of the testator’s intention to constitute the person or persons selected, a stock from which the inheritance shall be deduced, there can be no doubt that the ancestor referred to, will take an estate for life only, notwithstanding the person or persons so selected may also fill the character oi£ heir or heirs to such ancestor; as m the case of a limitation, in strict settlement on first and other sons.

In Lisle vs. Grey, Sir T. Raym. Rep. 278, Fearne on. Rem. 151, the covenantor covenanted to stand seized to the; use of himself for life, and after his decease, to the use, of E, "his son, for life, and after his decease, to the use of the first son of the body of E, and the heirs .male of the, body of such first son; and for default of s.uch issue, to the use of the second son of the body of E,,and the heirs malt; of the body of such second son; an,d for default of such is.sue, to the use of the, third son of the body of E, and the heirs male of such third, son; and for default of such issue, to the use of the fourth son of the body of E, and the heirs male of the body of such fourth son; and so severally and respectively to every of the heirs male of the body of the said E, and the heirs male of the bodies of such heirs, male according to their ages and seniorities; and for default of such issue, remainder, &c. and it was held, that the words “and so,” &c, were words, of relation, and meant in th#' *372same, manner, as the four first sons took, and that E took only an estate for life, the general import of the word heirs being qualified by the preceding particular limitations .to, the first and,'other sons. And thus construed, it stood as if it had been in terms a limitation to E for life, remainder to his first, second, and other sops, and the heirs male of the bodies of such sons respectively. In Lowe vs. Davies, 2 Ld. Raym. 1561, the devise was “to B, and his heirs lawfully to be begotten; that is to say, to his first, second and third, and every son and sons_ successively, lawfully to fie begotten of the body of said B, and the heirs of the body of such first, second, third, and every other- son and sons successively, lawfully issuing, as they should be in seniority .of age and priority of birth, the eldest always, and the heirs of his body, to be preferred before the youngest, and the heirs of his body; and in default of such issue then over,” &c. In that case the words “hi? heirs” were considered as being explained by the words “that is to say,”, to mean first, second,' and other sons, &c. And it was decided that B took only an estate for life, that being the manifest intention of the testator. In Sweet vs. Herring, 11 East, 264, the devise was to Margaret Davie for lite,' and after her 'decease to the heirs niale of her body to be begotten, severally, successively and in remainder, one after another, as they and every of them should be in seniority of age and priority of birth, the elder of such son's, and the heirs male of his body lawfully issuing, being always preferred, and to take before the younger of such son and sons, and the heirs male of his and their bodies; and for want and in default, of such issue', (hen over”’-Sc.' There it was held, that the words ' “heirs of her body,” were not used in their strict technical sense as words of limitation, but were explained and qualified by the subsequent words “the elder of such sons,” by which they were plainly designated by the devisor as purchasers to* take iii their own right, and, not hy descent fropi their mother; and thus explained, the whole clause was viewed as if.it had been a devise to her for life, and after her decease to her first and other sons successively in tail, male. ' '

Now what is tliis case? ' Why a' devise to Charles. Digges, and after his decease to his first, second, and third sons in succession, and the heirs of theirbodies respectively} in no respect differing in principle from either of the *373©a^es cited. In each of those cases, to be sure, the word ^heirs’’ is used, which, if unexplained by the context, would have been a word of limitation, and have operated to give to the first taker an estate tail; but here is not that, word, and this case is clear even of that difficulty, and which was the only difficulty raised in either of them; the case of Bamfield vs. Popham 1 R. Williams, 54, is directly in point. ' But here the words “for default of such issue,” "are relied upon as controiing the sense in which the Word “son5? is used, and explaining it to mean “issue.” I bare endeavoured to show, that they have no such operation, and if will bé seen, that in Lisle vs. Grey, and Sweet vs. Herring, the very same words are used, though no such «fleet was attempted to be ascribed to them. But if the word “sou” was not in this devise, and in the place of it fhe word “issue” had in fact been used* it would have made ao difference...

In Backhouse vs. Wells, 1 Cases in Equity Abridged, 184, pl. 27, the devise was to one for life, and after his decease to the issue male of his body, and to the heirs male of the bodies of such issue, and the first taScer was held to have only an estate for life, the word ‘issue” not being ex vi termini a word of limitation, and the words of limitation grafted upon ít, as in this case, showing that it was used as a word of purchase, and as descriptive of the person who was to take the estate tail. " In the case of Check vs. Day, 2 Roll. Ab. 417, where the devise was to a woman for life, and after her death, to her heir, and the heirs of such heir, it was held that she took only an estate for life. And so in, Archer’s case, 1 Coke, 63, where the limitation was to one for life, anil after his death to his next heir male, and the heirs male of- the body of such next heir male. In both of those cases the word “heir” being used in the singular, number, the superadd ed words of limitation restrained it to a word of purchase, which is stronger than the case of a limitation to one, and after his death to his“issue,” and the heirs of such “issue.”. The case of Legate vs. Sewell, 1 P. Wms. 87, 1 Cases in Equity Abridged, 395, has been urged to show, that sons taking by seniority, and in succession, may still take as heirs; but that case will be found to have no bearing on this. There the devise was “to Williain Legale for life, and after his decease, to the heirs male of his body lawfully to be begotten, and the *374heirs male of the body of- every such heir male, severally and successively as they should he in priority of birth, &c. In that case the limitation was to the heirs male, &c. and though they were directed to take severally and successively,'there w^s nothing explanatory of the, words “heirs, male of the body,’5 and showing that the. testator used them in any other than, their, technical sense; whereas in this case .the limitation iy to the first son, &c. and the. word “.heirs” never used. And in Lisle vs. Grey, Lowe vs. Davies, and Sweet vs. Herring, the sense in which tha word “heirs” is used, is explained by the context, which shows the meaning annexed to it-by'the testator himself, and that he used it in the same, sense, as first, &c. sons. What has been said of the case of Legate vs. Sewell, may equally be said of Jones vs. Morgan, 1 Brown’s Chan. Rep. 206, Fearne, 134, which was also relied ori in argument. And the cases of Langley vs. Baldwin, 1 Cases in Equity Abridged, 185, and The Attorney General vs. Sutton, 1 P. Wms. 754, are not, more applicable. In each /of those cases, after a limitation to some only of the sons, of the first taker successively in tail, there is'a remainder over, on the death, of: the first taker without issue male of his body, which of-itself-was held-to give him an estate, tail. In Robinson vs. Robinson, 1 Burr. 38, and Dodson vs. Grew, 2 Wils. Rep. 324, it was held tobe an estate,, tail in the first taker, in order to give cffectto the manifest general and more weighty intention of the testator, which could not stand with the particular Intention, and must have been sacrificed, if the minor particular intention had been gratified. And they were not decided-, on the ground that they were within the rule in Shelley’s case, but on the cy pres- doctrine, which has been carried quite far. enough in’ another country. Here there is no general-intention.to be sacrificed at the shrine of «'particular intent, and this case js clear of the principle governing that class of cases.

It was manifestly the intention of the testator tp give to his grandson, Charles Digges, an estate for life, and no more. He begins with giving, an estate for life to his son William Digges, the father of Charles; he next- gives an estate for life to Charles, his grandson, and then goes on to. limit an estate to the first, second, &cl and all and every other.son of Charles, in succession, and- the heirs of their bodies, respectively. Now if it was not- his intention that *375i'he first and other sons of Charles should take the estafé Successively each in his own right, as the root of a liew inheritance, and that Charles should take only an estate for life, why did he not follow the devise to William Digges for life, with a limitation to Charles, bis son, in tail? This he has not done, and his avoiding to do it, clearly shows what his intention was. Besides, the limitation in tail gcHeral to the first and other sons in succession, of Charles Digges, is in exclusion of the daughters of Charles; whereas if he look an estate tail general, it might eventually go to his daughters, (if he had any,) as persons belonging to the class of described heirs, which was not the intention of the testator. He meant to give Charles Digges only an estate for life, otherwise, he would have grafted words of limitation on the devise to him, ás he did immediately after on the limitation to his first son, &c. and that intention may be grafted without violating any positive rule of law.

That the words “to his issue in tail,” in the devise to Thomas Digges, are coniroled by the next following words, “in such manner as I have limited the same to my grandson Charles, and his issuer” are explained to mean, to the first son, &c. of Thomas, as in the limitation to Charles, and his first and other sons, is a position fully sustained by the case of Lisle vs. Grey, where the words “and so severally and respectively to every the heirs male of the body of the said E,” immediately after the limitations to the first, second, third, and fourih sons of the said E, and the heirs male of their bodies respectively, were held to be words of relation, and meant, in the same manner as the four first sons took, the words “and so” being the same as eodemmodo. We are therefore of opinion, that Thomas Digges took only an estate for life in the premises devised io him. judgment afeiiuieb.