Construction of wills.
Intention to be observed.
(n) 30 Ass. 183 a; Year Book, 9 Hen. VI. 24 b; Litt. s. 586; Perkins, s. 555; 2 Black. Com. 381.
Example of an intended life estate, held to be an estate tail.
An intended fee simple, held to he only an estate for life.
(o) Perrin v. Blake, i Burr. 2579; 1 II. Bla. 672; 1 Dougl. 343.
(p) Fearne, Cont. Rem. 117 to 172. (q) Ante, p. 45. (r) Ante, p. 19.
Another instance of the defeat of intention arose in the case of a gift of lands to one person, "and in case he shall die without issue," then to another. The courts interpreted the words, "in case he shall die without issue," to mean "in case of his death, and of the failure of his issue;" so that the estate was to go over to the other, not only in case of the death of the former, leaving no issue living at his decease, but also in the event of his leaving issue, and his issue afterwards failing, by the decease of all his descendants. The courts considered that a man might properly be said to be "dead without issue," if he had died and left issue, all of whom were since deceased; quite as much as if he had died, and left no issue behind him. In accordance with this view, they held such a gift as above mentioned to be, by implication, a gift to the first person and his issue, with a remainder over, on such issue failing, to the second. This was, in fact, a gift of an estate tail to the first party (u); for an estate tail is just such an estate as is descendible to the issue of the party, and will cease when he has no longer heirs of his body, that is, when his issue fails. Had there been no power of barring entails, this would no doubt have been a most effectual way of fulfilling to the utmost the testator's intention. But, as we have seen, every estate tail in possession is liable to be barred, and turned into a fee simple, at the will of the owner. With this legal incident of such an estate, the courts considered that they had nothing to do; and, by this construction, they accordingly enabled the first devisee to bar the estate tail which they adjudged him to possess, and also the remainder over to the other party. He thus was enabled at once to acquire the whole fee simple, contrary to the intention of the testator, who most probably had never heard of estates tail, or of the means of barring them. This rule of construction had been so long and firmly established, that nothing but the power of parliament could effect an alteration. This was done by the act for the amendment of the laws with respect to wills, which directs (x) that in a will the words "die without issue," and similar expressions, shall be construed to mean a want or failure of issue in the lifetime, or at the death of the party, and not an indefinite failure of issue; unless a contrary intention shall appear by the will, by reason of such person having a prior estate tail, or of a preceding gift being, without any implication arising from such words, a gift of an estate tail to such person or issue, or otherwise.
Gift in case of death without issue.
(s) 7 Will. IV. & 1 Vict. c. 26.
(t) Sect. 28.
From what has been said, it will appear that, before the above-mentioned alteration, an estate tail might have been given by will, by the mere implication, arising from the apparent intention of the testator, that the land should not go over to any one else, so long as the first devisee had any issue of his body. In the particular class of cases to which we have referred, this implication is now excluded by express enactment. But the general principle by which any kind of estates may be given by will, whenever an intention so to do is expressed, or clearly implied, still remains the same. In a deed, technical words are always required; to create an estate tail by a deed, it is necessary, as we have seen (y), that the word heirs, coupled with words of procreation, such as heirs of the body, should be made use of. So, we have seen that, to give an estate in fee simple, it is necessary, in a deed, to use the word heirs as a word of limitation, to limit or mark out the estate. But in a will, a devise to a person and his seed (z), or to him and his issue (a), and many other expressions, are sufficient to confer an estate tail; and a devise to a man and his heirs male, which, in a deed, would be held to confer a fee simple (b), in a will gives an estate in tail male (c); for, the addition of the word "male," as a qualification of heirs, shows that a class of heirs, less extensive than heirs general, was intended (d); and the gift of an estate in tail male, to which, in a will, words of procreation are unnecessary, is the only gift which at all accords with such an intention. So, even before the enactment, directing that a devise without words of limitation should be construed to pass a fee simple, an estate in fee simple was often held to be conferred, without the use of the word heirs. Thus, such an estate was given by a devise to one in fee simple, or to him for ever, or to him and his assigns for ever (e), or by a devise of all the testator's estate, or of all his property, or all his inheritance, and by a vast number of other expressions, by which an intention to give the fee simple could be considered as expressed or implied (f).
Such a gift held to be an estate tail.
(u) 1 Jarm. Wills, 488, 1st ed.; 464,2nd ed.; 517,3rd ed.; Machell v. Weeding, 8 Sim. 4, 7. (x) Sect. 29.
Gift of an estate tail by will.
Gift of a fee simple by will.
(y) Ante, p. 140.
(z) Co. Litt. 9 b; 2 Black. Com. 115.
(a) Martin v. Swannell,2Beav. 249; 2 Jarm. on Wills.. 329, 1st ed. See however 2 Jarm. on Wills, 347, 2nd ed.; 388, 3rd ed.
(b) Ante, p. 140.
(c) Co. Litt. 27 a; 2 Black. Com. 115.
(d) 2 Jarman on Wills, 233,1st ed.; 266, 2nd ed.; 298, 3rd ed.