Page:The English Reports v1 1900.pdf/1195

sensible will, must he expunged, and the heir at law must take against the express meaning of the testator. That this case seemed to be the very same as the case of Burchett and Durdant (2 Ventris, 311), which had formerly been disputed under [63] the name of James and Richardson (1 Ventris, 334. 2 Lev. 232. Raym. 330. 2 Jones, 59. Pollex. 457), where a devise to the heirs male of the body of Robert Durdant, then living, was adjudged in Westminster-Hall, and twice affirmed in parliament (1 July 1685. Jour. vol. 14. p. 70. 15 Nov. 1690. ib. p. 554), to be a good limitation to George, the eldest son of Robert Durdant, though Robert Durdant was living; for there could be no great difference between the heirs male of the body of Robert Durdant, then living, and the heirs male of the body of Elizabeth Long, lawfully begotten; the words then begotten, being tantamount to the words then living. For those reasons it was conceived, that the first judgment was rightly given; and that therefore, the judgment of reversal ought to be reversed.

On the other side it was argued (J. Jekyll, J. Pratt), that the right of the defendant Dorothy, who was the testator's heir at law, was in its nature favourable, and constantly supported by the common law of England; and that all devises which disinherit an heir at law, ought to receive a strict construction. That in order to make the devise in question good to the lessor of the plaintiff, it must either be construed a contingent remainder; or the words heirs male, must be taken as a descriptio personæ, so as to vest the remainder in him. Now it could not be good as a contingent remainder, because there was no freehold to support it, all the precedent estates being for years; and even if it were good as a contingent remainder in its original creation, yet Elizabeth Long being living at the testator's death, the lessor of the plaintiff could not take; for it is a standing rule in law, that all contingent remainders must vest, either during the particular estate, or at the instant when the particular estate determines, otherwise they are void; and as Elizabeth Long was living when the particular estate determined, Thomas, her son, could not take as heir, for nemo est hæres viventis. Neither could this devise to be good as a designatio or descriptio personæ, for that is such a description as is vice nominis; the word heirs did not agree with the person pretended to be described; he was not heir of Elizabeth Long, nor could be, while she was living; that heirs, being a legal term, can be understood only in a legal sense, unless some other word or words accompanying it, determine the sense otherwise, as heir-apparent, or heir now living; but the word begotten doth not determine the sense otherwise, because heirs begotten, and to be begotten, have the same legal construction; and there did not appear any intention in the testator, to confine this devise to the issue male of Elizabeth Long, then living, much less to Thomas Long only, who would take as the person here described. For these, and several other weighty reasons and authorities in law, the devise, under which Thomas Long claimed, was adjudged to be a void devise; and that the lands descended to the defendant Dorothy, as the heir at law of the testator; and therefore it was hoped, that this judgment would be affirmed.

But after hearing counsel on this writ of error, it was ordered and adjudged, that the judgment of reversal given in the Exchequer Chamber, should be reversed. (Jour. vol. 19. p. 696.)