1790, when her daughter Rebecca took possession; the last named Rebecca married Benjamin Bailey who died in 1796; and she herself died in 1797 without having made any effectual direction or appointment of such premises, leaving an only child Mary Ann Bailey, who by her guardian received the rents, but was non admitted, and died an infant and without issue on the 15th of February, 1802. The prosecutor is her maternal heir at law. Ann Acton survived her sister Rebecca Bailey, and died in the life-time of Mary Ann Bailey, leaving the above John Acton her only son, who on the 24th of January, 1804, was admitted (by his guardian) to an undivided moiety of the said copyhold premises. MARRYAT. "The prosecutor contends, that the absolute fee vested in Mary Ann Bailey, the infant, after the decease of her mother, who is described in the will as the testator's daughter Rebecca Houde. The defendant claims a moiety under the devise over in de.. fault of such issue, he being the testator's heir at law, and Acton being entitled to the other moiety. The question arises upon the construction of the devise over after the life estate to the issue of the body of Rebecca Houde, and the subsequent devise over to the children of Rebecca Hoade, and it must be contended that lawful issue of the body' means heirs of the body. So the word children of Rebecca Hoade must mean the same thing. An heir may be a collateral heir, but children must mean issue of the body. In Doe d. Comberbach v. Perryu,* there was a devise to Dorothy Comberbach for life, with a power of leasing for a term not exceeding seven years; remainder to all and every the children of Dorothy Comberbuch, begotten or to be begotten on her body by his nephew James Com 3 Term Rep. 484. 1806. The KING versus the LORD and STEWARD of the Manor of CHERTSEY. 1806. The KING versus the LORD and STEWARD Of berbach and their heirs for ever, to be equally divided, if only one child then to such one and his heirs; and in default of such issue to James Comberbach for life; and after the decease of the survivor of Dorothy and the Manor of James Comberbach, without issue as aforesaid, to and CHERTSEY. among all and every the children of his nephew Roger Comberbach and of B. Perryn respectively begotten or to be begotten on the bodies of their respective wives, and to his niece E. Adams, and to the heirs of such children of E. Adams respectively in manner therein mentioned; remainder to the devisor's own right heirs. And the question was, whether by the birth of a son of James and Dorothy Comberbach, the contingent remainders were not defeated? and the next question, whether in consequence of their children dying in the life-time of James and Dorothy Comberbach they would not revive, the interest of the children never taking effect in possession although it vested in interest? And it was held, that by the birth of such a child, who died in the life-time of the tenant for life, the remainder over was defeated. Here the child was in possession, and there is nothing in this case to turn upon the remainders being divested by the birth of a subsequent child as in that case, but whether this infant did not take the estate in fee. It was said in that case that there were plain words importing a fee, and there was nothing by necessary implication to divest it; that in default of such issue could not apply to the heirs but only to the children of the devisee: that it was not in default thereof, which might include the heirs, but in default of such issue, which could not apply to the heirs. Lodington v. Kyme was devise to 4. for life, and, if he has issue male, to such issue male and his heirs, and, if he die without issue male, to B. and his * Salk. 224. 1806. versus the LORD and STEWARD of the Manor of CHERTSEY. heirs; held, A. has but an estate for life, and both remainders are contingent. And here the object of The KING the testator is, that if his grandaughter had issue, they should take the estate in fee, and the words in default of such issue, are sensible if referred to children, but not so if referred to and to mean heirs. In Goodright v. Dunham,* a devise to children and their heirs was held to be a remainder in fee. Here also it is given to the children and their heirs as tenants in common, and not as joint-tenants; but if they were tenants in tail, the latter words would be insensible; for there cannot be a joint tenancy in tail between a man and his sister, nor between two men, nor between any man and a woman who cannot marry with him. He therefore contended that the devise to the children of Rebecca Hoade was a contingent remainder in fee, which vested upon the birth of any child, and could not be divested by his decease. Sir VICARY GIBBS, contrà. Mary Ann Bailey, the grandaughter took an estate tail, and on her death the limitation over to the children of Rebecca Hoade, namely, the prosecutor of the mandamus, Thomas Hoade and the descendant of Ann Hoade, the defendant John Acton, took effect. The testator knew that there were children both of Rebecca Bailey and Mrs. Acton alive, and he intended to provide for both of them, but if the construction in favour of the prosecutor is to prevail, then if she had several children, and all died under the age of 21 years, the eldest son of Rebecca Hoade or his heir would take that which he gives over to Ann Acton and Thomas Hoade. The term default of such issue may be considered as ambiguous, referring either to the children last-mentioned who are issue, or to the issue of the body of Rebecca Houde first mentioned. * Dougl. 251. + Com. Dig. Estates, K. 1 Co. Litt. 124. 1806. versus the LORD and the Manor of CHERTSEY. In Doe d. Comberbach v. Perryn, the words are to The KING their heirs for ever, and though a man may sometimes mean by the words heirs, heirs of the body, yet when STEWARD of he uses the words heirs for ever, that must mean aa estate in fee, namely to heirs that will endure for ever, and in that case the testator had expressly given an estate to one person, and the heirs of his body, a cir cumstance on which Buller, J. relied very much in giv ing his judgment. Lodington v. Kyme, is not strictly in point; for there the words were, if he have issue male to his heirs for ever, and if he die without issue then over. So in Goodright v. Dunham, the words were and in case he dies without issue, he gives the same premises to his daughters and their heirs, and the words were not as here, in default of such issue. Of an estate so limited in tail, there might be a joint tenancy, as, if be had given it to them jointly, whether sons and daughters or not,they would take as joint-tenants for life with seve ral inheritances. He cited also Lewis d. Ormond v. Waters. In the case of Ives v. Legg, the words in default thereof were said to comprise both contingencies; as well that of there being no children as of the devisee having children and they dying in her lifetime, and here the words in default of such issue may by reference to the first part of the sentence apply to a default of heirs of the body. This case resembles that of Ives v. Legg, and must be governed by it. Cur, adv. cult. And on this day the judgment of the court was delivered to the effect following, by Lord ELLENBOROUGH, C. J. "The question raised in this case is, whether there are words in the will to Littleton, s. 283. + 6 East, 336. See the note to the case of Doe v. Perryn, 3 T.Rep, ut supra. 1806. The KING versus the LORD and the Manor of CHERTSEY. shew an intent to restrain the devise to the children of the grandaughter, Rebecca Hoade, and their heirs, to mean heirs of the body, and to give them only an estate tail. There is no doubt that, according to the common STEWARD of and ordinary meaning of the words they must take a fee. The devise is in this form: "To Rebecca Hoade, the daughter, for life; remainder to Rebecca Hoade, the grandaughter, for life; remainder to the lawful issue of her body in such parts, shares, and proportions, manner and form, as the said Rebecca Hoade my gran daughter shall, by her will, direct, will, limit, or appoint; and, in default of such direction, will, limitation, or appointment, to the use and behoof of all and every the children of my said grandaughter Rebecca Houde, lawfully to be begotten and their heirs, as tenants in common, and not as joint-tenants; and in default of such issue to the use of my own right heirs." And it is said, by the limitation over in default of such issue, the testator meant his other grand children to take,if the children of his grandaughter Rebecca Hoade should die. If the words had been, and they shall die without issue,' it would have been clearly so; but that event is not expressly provided for; and why might not the testator intend to give the estate absolutely to the children of his grandaughter, if she had any, and if not, then to his right heirs? The construction contended for, that in default of such issue must mean issue of the body, would be more obvious if the devise to the children of the grandaughter Rebecca were an immediate devise; but that is not the case; it is a devise after a power of appointment, to the issue of her body in such parts, shares, and proportions, manner and form as she shall appoint. This in the course of the argument is said only to be a power to appoint the shares and proportions amongst the children in tail. If so that would furnish an inference that the li 30 NO. XXXIV. N. 9. |