For the creation of an estate tail words of limitation and procreation are necessary; that is, not only is the word "heirs" required, as in the limitation of a fee simple, but there must also be some words which show that the heirs of the donee's body, or some class of them, are to inherit the estate. If the words of limitation are absent, the donee takes only a life estate,27 while the omission of words of procreation gives the donee a fee simple.28 As to what words are sufficient to create an estate tail, the same rules apply as to a fee simple, as far as words of limitation are concerned; so that the word "heirs" must be used in a deed, and "seed," "issue." or "children of the body" would be insufficient.29 But any words which show that the word "heirs" is to be restricted to the heirs of the body will suffice to restrict the inheritance to a fee tail.30 In wills there is the same relaxation as in the creation of a fee simple, and the intention of the testator governs, even though he does not use the technical words required in a deed.31 So the word "issue,"32 or "children"33 may be sufficient to create an estate tail, without using the word "heirs," if it appears from the context that the devisor so intended.34 And in a will the expression "heirs male" has been held to pass a fee tail, although it would create a fee simple if used in a deed. A limitation to A. and to his heirs male, or to A. and to his heirs female, creates an estate in fee simple, because it contains no restriction to a particular line of issue. It is not limited by the gift of what body the issue male or female shall be. Inheritance by heirs general cannot be restricted to one sex; therefore, the words "males" and "females," having here no legal import, are rejected, and all the heirs, female as well as male, may inherit. For no man can institute a new kind of inheritance not allowed by law.35 The intention to give a
25 Willion v. Berkley, Plow. 251, per Dyer, C. J. 26 Leake, Prop. Land, 37.
27 Co. Litt 20b; 2 Bl Comm. 115; Ford v. Johnson, 41 Ohio St 36C Cf. Lehndorf v. Cope, 122 III. 317, 13 N. E. 505. 28 2 Bl Comm. 115; Co. Litt 27a; Doe v. Smeddle, 2 Bam. & Ald. 126.
29 Co. Litt 20a; 2 Bl Comm. 115.
30 Hall v. Vandegrirt, 3 Bin. (Pa.) 374; Corbin v. Healy,'20 Pick. (Mass.) 514; Pollock v. Speidel, 17 Ohio St 439; Den v. Lake, 24 N. J. Law, 686; Morgan v. Morgan, L. R. 10 Eq. 99; Den v. Cox, 9 N. J. Law, 10; Buxton v. Inhabitants of Uxbridge, 10 Mete (Mass.) 87; Brown v. Hospital, 155 Mass. 323, 29 N. E. 625; Holden v. Wells (R. I.) 31 Atl 265.
31 Reinoehl v. Shirk, 119 Pa. St. 108, 12 Atl. 806; Arnold v. Brown, 7 R. I. 189; Manwnrins: v. Tabor, 1 Root (Conn.) 79; Clark v. Baker, 3 Serg. & R. (Pa.) 470; Stone v. Mcmullen (May 3, 1881) 10 Wkly. Notes Cas. 541. But see Hill v. Hill, 74 Pa. St. 173. "Heirs lawfully begotten" has been held, In a will, to mean "begotten by him." Pratt's Lessee v. Flamer, 5 Har. & J. (Md.) 10.
32 Clark v. Baker, 3 Serg. & R. (Pa.) 470; Taylor v. Taylor, 63 Pa. St 481.
33Nightingale v. Burrell, 15 Pick. (Mass.) 104; Fletcher v. Fletcher, 88 Ind. 418.
34 See, also, Braden v. Cannon, 24 Pa, St 168; Ganse v. Wiley, 4 Serg. & R. (Pa.) 509; Allen y. Markle, 36 Pa, St 117; Wheatland v. Dodge, 10 Mete. (Mass.) 502.
35 Co. Litt 13a; Leake, Prop. Land, 171; Den y. Fogg, 3 N. J. Law, 598; Allin y. Bunce, 1 Root (Conn.) 96; Welles v. Olcott Kirby (Conn.) 118; fee tail may appear from a limitation over, if the donee "die without heirs of his body," or similar expressions. This is called an "estate tail by construction."36