1818. DOE against ALCHIN. there, though the appointment of the whole estate to one of the testator's relations was held valid, yet it was considered that the case would have been different if it had been an appointment to children, as the present case is: and in Swift v. Gregson (a), the words of the power were "for the use and behoof of such child and children as J. G. should appoint;" but that case is distinguishable from the present, for there are additional words here, viz. in such shares, parts, and proportions, &c. so that it appears that the testator clearly intended the estate to be divided into parts; if so, then this appointment is bad, and the lessors of the plaintiff are entitled to a moiety of this estate. ABBOTT C. J. I am not able to distinguish this case from Swift v. Gregson, and Liefe v. Saltingstone. (b) A distinction has indeed been attempted to be made between those cases and the present, depending on the words, shares, parts, and proportions which exist in the present settlement. But I think that distinction not available; for those words can have an effect only where the person who is to execute the power of appointment, thinks proper to divide the estate into parts, but they do not compel her so to do. This case goes no further than those where a power is given to appoint in favour of such of the children or child as the trustees might please, and the Courts have always held, that those words gave the trustee a power to appoint exclusively to one child only. Besides, here there are not the words "to and amongst such children," which might make a difference. I think therefore, that the non-suit was right. (a) 1 Term Rep. 455. (b) 1 Mod. 189. BAYLEY BAYLEY J. The words, " to and amongst," have a strict technical sense, and where those words are used, each child must have some share assigned to him. But where the words are as here, for the use of such children or child as A. B. may appoint, there the trustee may select one as the sole object of his bounty, and is not bound to give some portion to each. The argument for the plaintiff proceeds upon an omission of the word "such." If that word were omitted it might follow that each child must have a share: but the insertion of the word "such" imports an intention on the part of the settlor to give the power of selection. ap HOLROYD J. I am of the same opinion, that the appointment in this case to one child is a good appointment. The words here are not "to and amongst," but "to such children or child as the widow should point." If therefore she chose to give shares to more than one, she might apportion them as she pleased. But I think that an appointment to one would be equally within the power, and that this case must be governed by that of Swift v. Gregson. Rule refused. 1818. DOF against ALCHIN. 1818. Tuesday, Where a marriage-settlement conveyed an estate to trustees for the use of set tlor for life, of his wife for life, and then for the use of his first son and the heirs of such first son, and from and im the determin ation of that estate for the use of his se DOE, on the Demise of LITTLEDALE, against SMEDDLE and Others. EJECTMENT, for certain premises situate in the parishes of Saint Bees and Saint Bridget, in the county of Cumberland, occupied by the defendants. At the trial at the last Cumberland assizes, before Bayley J, then to the use it appeared, that in the year 1776, Henry Littledale, being seised of the premises in question, in contemplation of marriage, made a settlement, by which he conveyed the premises to trustees, "in trust for the use of himself for life, then to the use of his wife for life, and mediately after then in trust for the use of his first son, and the heirs of such first son, and from and immediately after the determination of that estate, in trust for the use of his second, cond, third, and third, fourth, fifth, and all and every other son and sons, and their several and respective heirs, and for default of such issue, then to the use of all and every of and for default his daughter and daughters, and their heirs, to take as tenants in common, and not as joint-tenants, and for want of such issue, then in trust for the use of the right heirs of the survivor of himself and his wife for ever." The issue of this marriage, were two daughters. Henry Littledale died in 1779, leaving his wife and daughters surviving him. In 1793 and 1794, both the daughters died unmarried. On the 30th May 1781, the widow married Anthony Benn and had issue by him a son, all and every other son and sons, and their several and respective heirs ; of such issue, then to the use of all and every his daughter and daughters, and their heirs, to take as tenants in common, and not as joint-tenants; and for want of such issue, then for the right heirs of the survivor of himself and his Robert Benn, who is still living. She died on the 7th February, 1818. The question at the trial was, whether wife for ever: Held that un der these limit ations the sons took successively estates tail, and the daughters an estate in fee. the premises belonged to the plaintiff, as heir at law of the two daughters, or to Mr. Robert Benn, the eldest son and heir of the widow. The learned judge thought, that the daughters, under the settlement, took an estate in fee which descended from them upon the lessor of the plaintiff, and directed a verdict accordingly; and now Richardson, (by leave of the learned Judge,) moved to enter a verdict for the defendants. The question in this case is, what estates the children took under this deed. The words of limitation to the eldest son and his heirs, would import a fee; but as the limitation goes on to state, that from and after the determination of that estate, it should go to the second and other sons, and their heirs, it is quite clear, that the word "heirs," as used in the first limitation, must mean " heirs of the body;" for otherwise, his estate could not determine in the life-time of his second brother, who would be his heir general. The eldest son, therefore, took an éstate tail; and the same reasoning exactly applies to the limitation to the second and other sons. Then comes the third limitation to the daughters; and it is fairly to be presumed, that the settlor, who had previously given estates tail to his sons, should intend to give the same estates to his daughters, and that the word "heirs," which, in the two former limitations, has been shewn to mean, " heirs of the body," should, in this limitation, receive the same construction. Besides, in this case, there is another limitation over, preceded by the words " and for want of such issue," which brings this case within the authority of Leigh v. Brace. (a) There the limitation was, "to the use of (a) Carth. 343. W. B. 1818. DOE against SMEDDLE. W. B. for life, and afterwards to the use of T. B. and his heirs for ever; and for default of issue of the body of T. B. then to the use of the right heirs of W. B." And it was held, that T. B. took only an estate tail. That case, therefore, is precisely in point, and has never been expressly overruled. Then, here the limitation being to the daughters and their heirs, and for want of such issue, to the heirs of the survivor of the husband and wife, the daughters took only an estate tail, and the estate, on their death without issue, vested by the subsequent limitation in Robert Benn, the heir of the widow, who is therefore entitled to the premises. ABBOTT C. J. The general rule of law is, that by the word "heirs" in a deed is meant heirs general, and even if it be admitted that there may be other expressions in the instrument, which from their nature may shew that the intention of the parties was to use the word in a more limited sense, still it by no means follows that the Court will adopt that limited sense, in those parts of the deed where the intention of the parties is not perfectly apparent. It may be admitted, in the present case, that the settlor, in the limitations to his first and other sons, used this word, as meaning heirs of the body. But if it were necessary, to form a judgment of what was his intention, when he used it in the limitation to his daughters, I should be of opinion, that it would be best effectuated by construing the expression as there meaning heirs general, and by holding that the daughters under it took estates in fee. It is, however, quite sufficient for the decision of this case, to say, that it is not plainly shewn, that in this limitation, the word "heirs" is used |