
    *Warners v. Mason and Wife.
    Decided, Nov. 20th, 1816.
    i. Wills — Construction—Contingent Remainder. — A Testator stave to his son W. a tract of land," during- his natural life,, and then to his heirs lawfully begotten of his body, that is, born at the time of his death, or nine Calendar months thereafter; and, for want of such heirs, then to his son I.’s two sons, ,J acob and George; one of them to set a price on the whole of it, and give or receive one half of that sum from the other.” This was a good limitation, by way of contingent remainder, to Jacob and George.
    William Warner the elder, late of the County of Accomack, made his last Will, dated June 20th, 1803, and devised to his son William Warner a tract of land, by the following words: “I give to my son William Warner my sea side plantation adjoining the lands of Thomas Evans, Esq. during his natural life, and then to his heirs lawfully begotten of his body, that is, born at the time of his death, or nine Calendar months thereafter; and, for want of such heirs, then to my son Iasac’s two sous Jacob and George; one of them to set a price on the whole of it, and give or receive one half of that sum from the other: I also give to my son William all the timber and scantling which he has got or sawed for the purpose of building a house on the plantation I have given him.”
    The Testator died, and William Warner the son entered, and died seized, without having had any issue, and having devised the land to his sister, who became the wife of Charles Mason.
    Jacob and Georg'e, the sons of Isaac Warner, brought an Ejectment against Mason and wife, in the County Court of Accomack, to recover the said sea side plantation; on the trial of which action, a case was agreed by the counsel on both sides, stating the facts aforesaid.
    On this case, the County Court gave Judgment for the plaintiffs. The Superior Court of Law reversed that decision; and the plaintiffs appealed to this Court.
    Nicholas for the Appellants.
    The question is whether the limitation over to Jacob and George was good, or n.ot.
    I contend that William Warner, the first devisee, took only an estate for life. It is an express estate for life in terms, and then to his heirs lawfully begotten. I do not say that an express devise for life will in all cases prevent the rule in Shelly’s case from prevailing: the general rule is, that the first devisee will take an estate in tail, which by the Act of Assembly becomes a fee simple; yet all the Judges agree that this rule is against the Testator’s intention. I admit that the rules of law *are not, in every case, to be controlled by the intention of the Testator; but, where any expressions are found in the Will, shewing the devise to the second devisee to be to him, as a purchaser, the Court will lay hold of those expressions in support of the intentign.  Shelly’s case only shews, .that where the limitation over is to the heirs of the body, generally, it vests an estate of inheritance in the first devisee; that the word heirs, in that case, is a word of limitation, not of purchase. But neither that case, nor any other, was ever intended to control the intention, obviously expressed, that the second devisee should take by purchase, and not by descent. Here the words “heirs lawfully begotten’’ were plainly intended, not as words of limitation, but as designa-tío personas; which is evident from the Testator’s describing those heirs, as persons “born at the time of his death, or nine Calendar months thereafter.’’
    The word “heirs,” in this case, is therefore a word of purchase, and not of limitation,  And that limitation is not too remote.
    Wickham contra.
    A person, not conversant with rules of law, would suppose that this case ought to be determined against me. The intention of the Testator certainly was to give an estate for life to William ; but he intended also to give something to William’s heirs; and they can take such estate only, as the law permits. His general intention must therefore control his particular intention.
    I contend that William Warner took an estate tail. His children (should he have any) could not claim by way of Executory devise, but by way of contingent remaindere: “for where a contingency is limited to depend on an estate of freehold, which is capable of supporting a remainder, it shall never be construed to be an Execu-tory devise, but a contingent remainder only, and not otherwise.” If therefore the contingency was too remote to permit the remainder to take effect, the children of William Warner could only take by construing the devise to him as an estate tail.
    ■ All the subsequent cases either conform, or profess to conform to the rule in Shelly’s case, according to which the heirs of William Warner could not take by purchase, but by descent; *and this is considered a principle of law never to be departed from,  This rule is not at all founded on the Statute de donis, but applies to estates in fee as well as tail; to Wills as well as Deeds. In the case before us, the devise to William Warner is not merely an implied, but an express estate tail; for the intention of the Testator must be consistent with the rules of law, and he cannot create new modes of descent,  If the heirs take by descent, the ancestor must have an estate of inheritance; as is also stated in the case of Jones v. Morgan,  in which the rule is laid down by Lord Thurlow with great accuracy and clearness.
    Suppose William Warner had died, leaving a grandson living; would he not have taken? Yet he could not, according to the argument of Mr. Nicholas: for he reads this Will as if the word used in it were “sons” instead of “heirs;” excluding all grandsons; which could not have been the intention of the Testator. The law term “heirs,” used by himself, includes grandsons, and ought always to be construed as meaning heirs, ” unless a contrary meaning be necessary.
    I admit there are exceptions to the rule in Shelly’s case; as where the limitation is to “sons” or “children;”  or where words of limitation are superadded to the word “heir,” in the singular number.  So if the devise be to A. for life, remainder to his heirs “now living,” this confines it to the children now living, and excludes the rule in Shelly’s case: but wherever “all his heirs” are to take at the time of his death,' there the rule applies.
    But if William Warner took an estate for life only, the devise over by way of contingent remainder is too remote. The case of Sydnor v. Sydnors, 2 Munf. 263, was as plain a case of intention, as ever came before a Court; yet there it was decided that the limitation was too remote; for there is no such thing, as an Executory devise taking effect after an estate tail: the Court considering the estate of the first devisee to be an estate tail, it was therefore turned into a pure and absolute fee by virtue of the Act of Assembly; according to Carter v. Tyler, 1 Call. 187.
    In Smith and Wife v. Chapman, 1 H. and M. 240, the distinction taken was that the devise over was to ‘‘children.” In Brewer v. Opie, 1 Call 212, the word “or” being considered *by the Court equivalent to “and,” both the contingences were confined to the period of the life of the first devisee: that case has therefore no bearing on this: Higgenbothan v. Rucker was a case of personal estate; in which, too, the word “children” was greatly relied upon. Bamfield v. Popham, 1 P. Wins. 54, has always been considered of doubtful authority. Coxe’s new edition shews this. In Roy v. Garnett, 2 Wash. 24, it is denied to be law, and said to have been overruled by Blackborn v. Edgley, 1 P. Wms. 605. Independent of all this, the devise was to Popham for life, remainder to his “first son,” and so to every other son in tail male.
    Nicholas in reply.
    Most of the cases cited by Mr. Wichkarn are not important in this case, because they relate to distinctions between Executory devises, and contingent remainders; and whether my clients take by one or other, they are equally entitled to recover: for, admitting they cannot take by Executory devise, yet if the first devisee took an estate for life, and the contingency be not too remote, the limitation over to them is good, as a contingent remainder. I deny that Shelly’s case applies to this. Mr. Wickham has shewn that there are many exceptions to the rule in that case. This narrows the ground of inquiry to the question, does this case present one of those exceptions?
    Almost all the exceptions to Shelly’s case turn 'on the intention of the Testator,  I admit that an express devise for life is not of itself sufficient, but it may be resorted to as evidence of the intention, in aid of other words. There is no rule of construction of Wills which ties down the Testator to particular words. Any that are equipollent, or used as synonymous, with “sons,” or “children,” will have the same effect. The word “heirs” is not used in this Will in the technical, but in the popular sense; being evidently intended to mean “children,” and not grandchildren, or any more remote heirs, or issue.
    A similar argument to that of Mr. Wick-ham in relation to grandchildren, was used in Smith and Wife v. Chapman, and overruled. That case is a very strong authority in my favour.
    In Doe v. Earning, 2 Burr. 1100,  it is said by Rord Mansfield, that “as there was no rule of law that prevented *heirs taking as purchasers, where the intention of the Testator required it, so he was of opinion that the words “heirs of the body” were words of purchase,” in that case.
    The reasoning in Jones v. Morgan, 1 Bro. Ch. cases, 219, is supposed to militate against the pretentions of my clients; but the words used in the devise over in that case were clearly words of inheritance, not of purchase. In Rord Thurlow’s argument there is a strong implication that the word “heirs” may in some cases be considered not words of limitation.
    Even where there is no express estate for life; but words of explanation are added to the word “heirs,” shewing that the Testator meant to use it only as a description of the person, or persons, to whom he intended to give the estate after the death of the first devisee; the word “heirs” will operate as a word of purchase, and the first devisee will take an estate for life,  These cases shew that the particular words “sons,” or “children,” are not necessary to be used; but any words sufficient to explain the intention will answer the purpose.
    The cases of Doe v. Cooper, Hill v. Burrow, Tate v. Tally, Eldridge v. Eisher, and Sydnor and Sydnors, are none of them like this, in which the limitation over was to take effect upon a contingency happening within nine months after the death of the first devisee; but were all cases of limitations depending upon indefinite failures of issue.
    
      
       Wills-Construction-‘Heirs. ”- It is nettled law that flic word "heirs,” as well as issue, may be construed a word of purchase, as descriptive of the persons to take, if that shall appear to be the intention of the testator, and is not necessarily a word oi limitation. Tidball v. Lupton, 1 Rand. 196, citing principal case.
      The principal case is also cited in Moore v. Brooks, 12 Gratt. 148. See generally, monographic note on “Wills” appended to Hughes v. Hughes, 3 Munf. 209.
    
    
      
       1 Co. Rep. 89.
    
    
      
       Coote’s Analysis of Fearne, p. 38. Fearne, (4th Ed.) 76; 2 Bl. Com. 241.
    
    
      
       Bamfield v. Popham, 1 P. Wms. 69; Burchett v. Durdant, 2 Vent. 311; Brewer & Wife v. Opie, 1 Call 212; Higgenbotham v. Rucker, 2 Call 313.
    
    
      
       2 Bl. Com. 173.
    
    
      
       2 Saunders, 388. Purefoy v. Rogers, note (9.) 3 Term Rep. 763. Doe v. Morgan.
    
    
      
       5 Bac. 731; Harg. Law Tracts, 489, Blackstone’s Argument in Perrin v. Blake; Ibid. 551, Hargrave’S own op. Robinson v. Robinson, 1 Burr. 38; 6 Cruise. 289.
    
    
      
       Coulson v. Coulson, 2 Str. 1125.
    
    
      
      b) 1 Bro. Ch. cases 219.
    
    
      
       Love v. Davies, 2 Ld. Raym. 1561; Doe v. Laming 2 Burr. 1100.
    
    
      
       6 Cruise. 344.
    
    
      
       Ibid. 353.
    
    
      
       Doe v. Cooper, 1 East 229, 6 Cruise. 295: Hill v. Burrow, 3 Call 342; Tate v. Tally, Ibid. 354; Eldridge v. Fisher, 1 H. and M. 559.
    
    
      
       6 Cruise. 341.
    
    
      
       6 Cruise. 347.
    
    
      
       6 Cruise, 346; Low v. Davies, 2 Ld. Raym. 1561; Doe v. Larning, supra.
    
   Wednesday, November 20th, 1816,

JUDGE ROANE

pronounced the Court’s opinion, that the Judgment of the Superior Court of Raw be reversed, and that of the County Court affirmed.  