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was exactly agreeable to the decree of Sir Joseph Jekyll, pronounced on the 17th of April 1733, and afterwards affirmed by the Lord Chancellor Talbot, on the 17th of December 1734, in the presence of counsel for Lancelot Hicks, who was now held to have been tenant in tail, and who was materially interested to contend for the ownership of the inheritance, but was advised to acquiesce in Sir Joseph Jekyll's opinion: and yet at the time of hearing the appeal, it was taken to be so just and right, that no doubt was conceived upon it either by the counsel or the court. It was therefore hoped, that the decree now appealed from would be reversed; and the respondent's bill dismissed.

But in support of the decree it was contended (C. Pratt, F. Norton), that the words son, children, issue, and heir, in a will, where no son is in being at the time of the devise, are nomina collectiva, and sufficient to create an estate of inheritance, and carry the land, not only to the immediate heir or issue, but to all that descend from the devisee. That the testator in this case could not have any particular person in view to take, but the issue male of Lancelot Hicks, in a collective sense, was clear; because, at the time of making his will, Lancelot Hicks was a bachelor; and therefore to suppose be could mean to give a life estate only to some one son of Lancelot Hicks not then in being, would be a construction equally illiberal and absurd. That this was made still plainer by the words which follow, i.e. for default of such issue, for these words explained what kind of an estate, as to its continuance or duration, the devisee should take; and are so frequently used to denote an estate tail, that they are become almost technical; so that express words are hardly better to be understood, than the implication arising from this phrase. That if the testator meant to give his estate to all the issue male of Lancelot, there was some sense in requiring all such devisees to bear his name, and this is common: from whence this affection to his name in the testator, furnished a strong argument to extend that devise to all the issue male; inasmuch as this kind of vanity is never satisfied with the remembrance of one or two generations, but looks forward to the latest posterity. That the testator's intentions in this respect, seemed more fully explained, in the clause immediately following the devise; where, after desiring that William Robinson should have liberty to present whom he pleased to any vacancy which should happen in any of the testator's presentations during his life, and in case any of his children should be designed for holy orders, to take bonds of resignation to such child or children; he expressly devised the perpetuity of those very presentations to Lancelot Hicks, in the same manner, and to the same uses, as he had given his estate; which manifestly shewed, that at least an estate of inheritance was meant to pass to the son or sons of Lancelot Hicks, taking the name of Robinson; for he never could intend to give an estate for life only, to arise at so remote a period, as when there should be a [186] total failure of issue of William Robinson and without which, the word perpetuity could not be satisfied by any other construction that could be put upon it. That in the case of wills, the testator is inops consilii, and has not always opportunities of observing the formalities of law; and it is a general rule, that the intention of the testator is to govern in the construction of wills, and that the judges will go as far as they can to assist and give effect to such intention. And therefore, as the word son will in a will signify an estate tail, as well as the words issue or children, it was humbly insisted, that the devise in the will of George Robinson, must by consequence and operation of law, to manifest the intent of the testator, be construed to create an estate to the respondent and the heirs male of his body.

After hearing counsel on this appeal, the judges were directed to give their opinions upon the following question, viz. "Whether any and what estate or interest in the premises in question, is by virtue of the will of the testator George Robinson, vested in Edmund Hicks, alias Robinson, the respondent?" And after taking time to consider, the Lord Chief Baron delivered the following unanimous opinion, viz.

That by the will of the testator George Robinson, an estate in tail male did vest in Lancelot Hicks, alias Robinson the father, and that an estate in tail male is vested in Edmund Hicks alias Robinson the son, as heir male of the body of Lancelot Hicks alias Robinson.

Whereupon it was ordered and adjudged, that the appeal should be dismissed, and the decree therein complained of affirmed. (Jour. vol. 29. p. 227. 232.)