for such estate or estates, rights and interests, and to, for, and upon such uses, trusts, intents, and purposes, and subject to such provisoes, conditions, and agreements, as the said George Earl of Orford, by any deed or writing, or by his last will and testament in writing, by him duly executed, in the presence of, and attested by two or more credible witnesses, should declare, limit, direct, or appoint; and, in default of such declaration, limitation, direction, and appointment, to the use of the right heirs of the said Samuel Rolle for ever, and to, for, or upon no other use, intent, or purpose whatsoever: Provided always, and it was thereby declared and agreed, and it was the true intent and meaning of these presents, that it should and might be lawful to and for the said George Earl of Orford, at any time or times hereafter, during his natural life, by any deed or deeds, writing or writings, under his hand and seal, duly executed in the presence of, and attested by two or more credible witnesses, or by his last will and testament in writing, attested as aforesaid, from time to time, and at all times thereafter, to alter, revoke, or make void all or any of the estates, uses, and limitations thereinbefore specified or limited, and also, by the same or any other deed or deeds, writing or writings, or by his last will and testament, so executed and attested as aforesaid, to limit or declare any other or new use or uses of all and singular the said manors, lands, tenements, hereditaments, and premises, or any part or parts thereof, at his free will and pleasure, and as to him the said George Earl of Orford should seem meet; and also from time to time, and at all or any time or times during his life, to grant, charge, lease, demise, or convey all and singular the aforesaid manors, lands, tenements, hereditaments, VOL. II. Tt and 1819. against. Lord CLINTON. and premises, or any of them, or any part or parcel thereof, to any person or persons, according to his own The Marquis of CHOLMONDELEY free will and pleasure, either in fee-simple or for life or lives, or any number of years determinable on the death of any person or persons, or for any number of years absolute, in possession, reversion, or by way of future interest, and in such form, manner, and sort as the said George Earl of Orford should think fit and proper; all and singular which said grants, charges, leases, demises, and conveyances of the premises, or any part thereof, should be good and effectual, to all intents and purposes. On the 5th of December, 1791, George Earl of Orford died without issue, and intestate, and without having altered or revoked the limitations contained in the indenture of the 2d August, 1781. At the date of that indenture, George Earl of Orford himself was the right heir of Samuel Rolle. At his death, Robert George William Trefusis was the right heir of Samuel Rolle, and the heir of George Earl of Orford, on the part of his mother, the daughter of the said Samuel Rolle; and there was an heir of the said George Earl of Orford, ex parte paterna. This case was twice argued; first in Michaelmas term last by Richardson, for the plaintiff, and Preston for the defendant; and, secondly, in this term, by Shadwell, for the plaintiff, and Copley Serjt. for the defendant. Richardson and Shadwell, for the plaintiff. The question is, whether Mr. Trefusis took any estate under this limitation in George Earl of Orford's settlement. It appears, that George Earl of Orford was tenant in tail by purchase, and consequently, by the recovery which was was suffered, and which enlarged his estate tail into a fee, the estate would, by law, descend not to his heirs. ex parte materna, as would have been the case had he been tenant in tail by descent, but to his heirs general, Martin v. Strachan (a), Roe v. Baldwere (b), Abbot v. Burton. (c) Under these circumstances, he made the settlement on which the question arises, by which he limited the estate first, to his own own use for life, and after his decease, to the use of the heirs of his own body, and, in default of such issue, to the use of such persons as he might by deed or will appoint; and then to the use of the right heirs of Samuel Rolle for ever. Now, as George Earl of Orford was himself right heir of Samuel Rolle, at the time when this deed was executed, this latter limitation may be properly considered as tantamount to a limitation of the estate to his own right heirs. And it was decided, in Bingham's case (d), The Earl of Bedford's case (e), and 2 Rolle's Abridgment (f), that a man cannot make his own right heir a purchaser, and that such a remainder is void. Then this limitation is in fact part of the old use, still remaining in George Earl of Orford, and if so it will descend to his heirs general. But it is said, that this being a conveyance to uses, must be construed differently from a common law conveyance. That is, however, not the law. For in Tapner v. Merlott (g) the rule was distinctly laid down by Lord C. J. Willes, that a conveyance to uses was not to be construed as a will, according to the intention of the parties, but as a common law conveyance; and he expressly disclaims the 1819. The Marquis of against Lord CLINTON. 1819. The Marquis of CHOLMONDELEY against Lord CLINTON. doctrine in Leigh v. Brace. (a) Lord Kenyon, in Aipass v. Watkins (b), speaking on this point, says, that a deed to uses must be construed as a common law conveyance; and again, in Doe v. Morgan (c), he says, "Soon after the statute of uses, an attempt was made to introduce a different construction on deeds to uses, from that which was put on common law conveyances; but that attempt failed of success, and the same rule of construction applies to both." The attempt to which Lord Kenyon alluded, was in the case of Abraham v. Twigg. (d) Then if this be so, it remains to be considered how this limitation would, in a common law conveyance, be construed. In commenting on Littleton, s. 30., Lord Coke puts this case. "If a man hath issue two daughters, and dieth seised of two acres of land in fee-simple, and the one coparcener giveth her part to her sister and the heirs of the body of her father, in this case, the donee hath an estate tail in the moiety of the donor's part, for the donee is not the entire heir, but the donor is heir with the donee; and she cannot give to the heirs of her own body, and the donce hath the other moiety of her sister's part for life." (e) There the gift fails as to that part of which the donor is heir, such limitation being void. That is exactly a case in point. In Rigden v. Vallier (ƒ), where the question was only whether the words of the limitation created a tenancy in common, the judgment of Lord Hardwicke (if indeed it can be considered as a final judgement, inasmuch as he offered to send a case to be argued before two common law Judges,) proceeded, on the ground (a) Carth. 343. (b) 8 T. R. 519. (c) 3 T. R.765. (d) Cro. Eliz. 478. (ƒ) 3 Atk. 734. 2 Ves. 257. S. C. that that the words there were words of regulation or modification and not of limitation. The same observation applies to Fisher v. Wigg. (a) But in Idle v. Cooke (b), where the question turned on words of limitation, the Court came to a different conclusion. Then, considering this as a deed at common law, the intention, if it were even clearly expressed in this recital, which it is not, still could have no operation in construing the words of the limitation in the habendum. In Sheppard's Touchstone, 75, 76. it is laid down, that a recital is the setting down, or report, of something done before, and that it is not an essential part of the deed. Lord Coke mentions eight parts of a deed; first, the premises which include the names of the parties, and the description of the lands granted; second, the habendum; third, the tenendum; fourth, the reddendum; fifth, the clause of warrantry; sixth, the in cujus rei testimonium; seventh, the date; eighth, the clause his testibus. And in Litt. s. 371., Co. Litt. 229. b., the precedent of a deed is given, which contains no recital; and Lord Coke, in his comment says, that there are three general parts of a deed, the premises, the habendum, and the in cujus rei testimonium. Now, if it were true, that the recital could be introduced in order to controul the deed, it is surely very strange that it should have been thus wholly omitted to be considered as a part of the deed by these eminent persons. It can, therefore, have no effect upon a clear limitation like the present. It is to be observed, that the argument on the other side is contrary to the policy of the law which favours the vesting of estates, by construing these words as limiting a future estate. That such is the policy, appears from (b) 1 P. Wms. 70. (a) 1 P. Wms. 16. 1819. The Marquis of |