"3d. Of the application of the rule in construing devises: - The rule now under consideration having been established for purposes of general utility, it has been adopted in the construction of devises, as well as in that of deeds. But it being a principle of law, that the intention of the testator is to be the chief guide in construing wills; it has been often doubted how far the application of this rule should be extended, in contradiction to the intention of the testator. Fearn. Cont. Rem., 290, 299. It has, however, been uniformly applied to devises of legal estates. Rundale vs. Eley, Cart., 170; although it appeared from other circumstances, besides an express devise for life, that the testator did not intend to give the first devisee a greater estate; such as a power to settle a jointure, with the concurrence of trustees; or an interposed estate to trustees to preserve contingent remainders; or a clause, that the devisee's estate should be without impeachment. Broughton vs. Langley, 2 Ld. Raym., 273; Papillon vs. Voice, 2 P. Wms., 471; Sayer vs. Master-man, Fearn. Cont. Rem., 250; Ambl., 344; Blandford vs. Applin, 4 T. R., 82; Candler vs. Smith, 7 T. R., 531; Cock vs. Cooper, 1 East, 229; Pearson vs. Vickers, 5 East, 548; Poole vs. Poole, 3 Bos. & P., 627; Ant.

vol. 1, p. 548, n. (n). So, although the limitation to the heirs be only mediate, yet the devisee will take an estate in fee or in tail, in remainder, to take effect in possession, upon the determination of the interposed estate; and the estate for life is not merged in the remainder. Coulson vs. Coulson, 2 Atk., 247; Hodgson vs. Ambrose, Dougl., 337; 3 Bro. P. C, 416; Thong vs. Bedford, 1 Bro. C. C, 313. And the rule holds, although no estate for life is expressly devised, but arises by implication, Hayes vs. Foord, 2 Bl. Rep., 698; and although the limitation be to the heir in the singular number. Burley's case, 1 Vent., 230; Wilkins vs. Whiting, 1 Rol. Abr., 836; Bulstr., 219; 2 Vern. 324; Miller vs. Seagrave, Rob. Gav., 96; Dubber vs. Trollop,-Rob. Gav., 96; Ambl., 453; Blackburn vs. Stables, 2 Ves. and B., 371. And a devise to the heirs, or heirs of the body, of a prior devisee for life, with superadded words of limitation, will be construed within the rule in Shelley's case, Goodright vs. Pullyn, 2 Ld. Raym., 1437; 2 Stra., 729; Legate vs. Sewell, 1 P. Wms., 87; Morris v. Ward, 8 T. R., 518; 2 Burr., 1102; Denn, d. Webb vs. Puckey, 5 T. R., 299; though there are some cases (which will be mentioned hereafter) in which a different construction prevails. The rule in question has also been applied to devises of trust estates, the construction of which is the same in the court of chancery, as it would be in a court of common law upon a devise of legal estate. Sweetapple vs. Bindon, 2 Vern., 536; Fearn. Cont. Rem., 164; Bate vs. Coleman, 2 Vern., 670; 1 P. Wms., 142; Garth vs. Baldwin, 2 Ves., 646; Wright vs. Pearson, Ambl., 358; Fearn. Cont. Rem., 187; Austen vs. Taylor, Ambl., 376; Jones vs. Morgan, 1 Bro. C. C, 206. And it takes place also in devises of copyhold estates. Lawsey vs. Lowdell,

2 Rol. Abr., 253, pl. 4; Gilb. Ten., 270; Bushby vs. Greenslate, 1 Str., 445; and in devises of terms for years; though if there appears any other circumstance or clause in the will to show the intention of the testator, that the words 'heirs of his body,' should be words of purchase, and not of limitation, then it seems the ancestor takes for life only, and his heir will take by purchase. Fearn. Ex. Dev., 300; 3 Cru. Dig., 344.

"The rule in Shelley's case, however, is not applied to devises, where the limitation is to sons or children, 1 Rol. Abr., 837, pl. 13; Ginger vs. White, Willes, 348. Goodtitle vs. Woodhall, Willes, 592; Goodright vs. Dunham, Dougl, 264; or where words of explanation are added to the word 'heirs/ from whence it may be collected that the testator meant to qualify the meaning of the word 'heirs,' and not to use it in its technical sense, but as a description of the person to whom he intended to give his estate after the death of the first devisee. As where a person devised to his son B. I. and his heirs" lawfully to be begotten; that is to say, to his first, second, third, and every son and sons lawfully to be begotten of the said B. I. and the heirs of the body of such first, second, third, and every son and sons successively, lawfully issuing; and in default of such issue, then to his right heirs forever. It was resolved, that B. I. took only an estate for life; the word 'heirs' being fully explained by the subsequent words to be a word of purchase. Lowe vs. Davies, 2 Ld. Raym., 1561; Et vid. Doe vs. Laming, 2 Burr., 1100; 1 Bl. Rep., 265; Rob. Gav., 95; Goodtitle vs. Herring, 1 East, 264; Sed vid. Poole vs. Poole, 3 Bos. & P., 620. And where words of limitation are superadded to the word 'heir,' in the singular number, from which it appears to have been the testator's intention to denote by the word 'heir' a new stock and root of inheritance, or where the context shows that that word is not used in its technical sense; as the word 'issue' or 'without impeachment of waste,' a limitation to trustees to preserve contingent remainders; or a direction so to frame the limitation, that the first taker shall not have the power of barring the intail, in these cases, it will be construed a word of purchase; and the first devisee will take an estate for life only. Archer's case, 1 Co., 66 b.; Clarke vs. Day, Moor, 593; Blackburn vs. Stables, 2 Ves. & B. 371. And Mr. Fearne observes, that there may possibly be some cases, where the superadded words of limitation may be admitted to control the preceding words, heirs, heirs male, etc, though in the plural number; when such superadded words limit an estate to such heirs, heirs male, etc, of a different nature, from that, which the ancestor would take, if the preceding words, 'heirs male,' etc., in those cases, were taken as words of limitation. As in the case put by Anderson (1 Co., 95 b., et vid. 1 Atk., 413), of a limitation to the use of a man for life, and after his decease to the use of his heirs, and the heirs female of their bodies; here the first word 'heirs' would have given a fee to the ancestor, if taken as a word of limitation; whereas the subsequent words, 'and the heirs female of their bodies,' grafted on the word 'heirs,' could give only an estate tail female to the heirs. In such cases, the general effect of the first words, 'heirs of the body,' etc., seems to be altered, abridged, and qualified, by such subsequent express words of limitation annexed to them, as cannot possibly be satisfied by considering the first words as words of limitation. But we must take care to confine this observation to those cases, where the ingrafted words describe an estate descendible in a different course, and to different persons as special heirs, from what the first would carry the estate to: viz., to males instead of females, or vice versa; for where the first words give an estate tail general, and the words ingrafted thereon are words serving to limit the fee, it seems by the general and better opinion, that the annexed words of limitation are not to be attended to, as in the cases of Goodright vs. Pullyn, 2 Ld. Raym., 1437.; Wright vs. Pearson, Fearn. Cont. Rem., 187, Ambl., 358; and King vs. Burchall (Ambl., 378), where the ingrafted words limited the whole fee. Fearn. Cont. Rem., 286. So the rule is not applied to devises, where the remainder is given to the heir of the first devisee, for life only; in which case the first devisee will take no more than an estate for life. White vs. Collins, Com. Rep., 289. And where the word 'issue' is used with words of limitation superadded, it will be construed to be a word of purchase. Loddington vs. Kyme, 1 Ld. Raym., 203; Backhouse vs. Wells, 10 Mod., 181; and see Doe vs. Collis, 4 T. R., 294, adj. acc., in which case Lord Ken-yon observed, that, in a will, issue was either a word of purchase or of limitation, as would best answer the intention of the devisor; though, in the case of a deed, 'issue' was universally taken as a word of purchase. Et vid. Doe vs. Burnsall, 6 T. R., 30. But the word 'issue,' in a will, will not be construed to be a word of purchase, where the general intent requires a different construction. See King vs. Melling, 1 Vent., 225, 232; 2 Lev., 58; 2 P. Wms., 472; King vs. Burchall, 4 T. R., 296, n.; Roe, d. Dobson vs. Grew, Wilm., 272; 2 Wils., 322. In cases where the testator has directed a settlement to be made, and the court of chancery has been called upon to give directions respecting such settlement, the court has deviated from the rule in Shelley's case, and has so far departed from that which would be the legal operation of the words limiting the trust, if reduced to a common law conveyance as to construe the words 'heirs of the body/ although preceded by a limitation for life, as words of purchase, and not of limitation. But this has been done only in cases where it appeared from some clause or circumstance essentially repugnant to the nature of an estate tail, that the devisor could only intend to give the first devisee an estate for life; and that he used the words 'heirs of the body,' for the purpose of describing the persons, to whom he meant to give the estate, after the death of the first devisee. Leonard vs. Earl of Sussex, 2 Vern., 526; Stamford, (Earl of) vs. Hobart, 3 Bro. P. C, 31.; Papillon vs. Voice, 2 P. Wms., 471; Ashton vs. Ashton, 1 Collect. Jur., 402; Glenarchy vs. Bosvill, Forrest, 3; 1 Collect. Jur., 405. Meure vs. Meure, 2 Atk., 265. And see the case of White vs. Carter, Ambl., 670, adj. acc., in which Lord Camden took a distinction between the case, where a testator has given complete directions for settling his estate, with perfect limitations, and where his directions are incomplete, and are rather minutes or instructions, and cannot be performed in the words of the will. In the former case, said his Lordship, the legal expression shall have the legal effect, though perhaps contrary to his intention; as in Garth vs. Baldwin, 2 Ves., 646. In the latter case, the court will consider the intention, and direct the conveyance according to it. And where there is a settlement without articles, the words will be left to their legal operation, unless from some recital in the deed, or some other circumstance, it clearly appears that the language of the limitation was owing to mistake.