Page:The English Reports v1 1900.pdf/1194

the debts, legacies, and funeral expences of the testator, together with their costs sustained in and about the said trusts; that the estate and term of twenty-one years were thereby determined; that John Sparke and Jonathan Sparke both died without issue; that the defendant Dorothy Beaumont was the sister and next heir at law of the testator; that John Beaumont and Dorothy his wife, in right of Dorothy, (the term of twenty-one years being determined,) entered and were seised, prout lex postulat; that Elizabeth Long, aunt of the said testator, in his will named, at the time of making the said will, had three sons of her body lawfully begotten, and no more; that Thomas Long, the lessor of the plaintiff, was the eldest son of the said Elizabeth Long; that the said Elizabeth Long was still living; that after the death of the testator, and the determination of the said term of twenty-one years, and the death of John and Jonathan Sparke, and before the time laid in the declaration, the said Thomas Long entered and demised to the plaintiff Darbison, who entered and was possessed, and that the defendants ejected him, etc.

The general question upon this verdict was between the defendant Dorothy, who claimed as heir of the testator, and Thomas Long, the lessor of the plaintiff, who claimed under the will, as being the person designed therein, by the limitation to the heirs male of the body of Elizabeth Long, antecedent to the limitation to the testator's right heirs; and after several arguments in the Court of Exchequer, all the Barons (except Mr. Baron Bury) were of opinion, that the lessor of the plaintiff had a good title under the will, and gave judgment accordingly.

But upon further argument, on a writ of error in the Exchequer Chamber, before the Lord Chief Justice Parker, and the Lord Chief Justice Trevor, this judgment was reversed.

[62] Hereupon the plaintiff brought his writ of error in parliament; and on his behalf it was said (P. King, J. F. Aland), that the single objection taken to his title was, nemo est hæres viventis; and that Mrs. Long being living, there could not, in propriety of speech, be any heir male of her body begotten, to take by this will: but to obviate this objection, it was insisted, that the lessor of the plaintiff was the person designed by the testator to take, under the appellation of the heirs male of the body of his aunt Elizabeth Long, lawfully begotten; and that the intent of the testator by this devise, was to be collected not only from the words of the devise itself, but also from the several other parts of the will. That the word heir has, in law, several significations; in the strictest sense, it signifies one who succeeds to a dead ancestor; but it also signifies, in a more general sense, an heir-apparent, which supposes the ancestor to be living; and in this latter sense, the word heir is frequently used in statutes, law books, and records. As therefore the law gives several senses to this word, it would be hard in the present case, to expound it in the most strict and rigorous sense, which would destroy great part of the will; when by law it might have another sense, which would support the whole will, and the manifest design of the party. That the intent of a testator is the principal rule for the exposition of a will; because he is excused from using the strict and proper terms and phrases of the law, and is at liberty to use such expressions as he pleases; for if they be such as sufficiently declare his intent, it is enough; and that intent so expressed shall take place, if by any possibility it can be made consistent with the rules of law. Now here the testator took notice, that the sons of his aunt Elizabeth Long were living, by giving them legacies, and thereby he excluded all future heirs; he also took notice that Elizabeth Long, the ancestor, was likewise living, by giving her a legacy; and therefore he could not intend, that the first son should take as heir strictly, that being impossible in the lifetime of the ancestor; but as heir-apparent he night, and was clearly intended to take. He gave his heir, the defendant Dorothy, an annuity, and did not intend she should have the whole estate, until failure of issue male of his aunt Long; and therefore he expressly devised the lands to his own right heirs, in default only of the heirs male of the body of his aunt Long; so that the intent was manifest, that the apparent heir male of her body (who is the lessor of the plaintiff) should take before his heir general, who is the defendant Dorothy; and that she should take no more than the annuity, so long as there should be issue male of his said aunt. That by this construction every part of the will stood and was consistent, no rule of law was broken, and the word heir was taken in a sense which the law allows; but if a different construction should take place, several parts, and some whole lines together, of a very