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for life into an estate tail. If there was such a limitation, the consequence would be undeniable; it being too well settled to be now disputed, that where a man has an estate for life devised to him, even with the negative words, "and no more," or "no longer," or the like, yet if there is a subsequent devise in the same will to his heirs, or the heirs of his body, these last words are to be construed as words of limitation, and not of purchase; and will operate by force of the testator's general intention, against his words, and give an estate in fee, or an estate tail, to the ancestor, and not to the heir. Upon this ground it was, that in the case of Robinson v. Hicks, (3 Brown, p. 180) (the authority principally relied on for the defendants,) when it was once resolved, that the word "son" in that will was used by the testator as a word of limitation, as nomen collectivum, as synonymous to "heirs of the body," it followed of course, that it enlarged the estate for life before given to the father, into an estate tail. But in the present case, the lessors of the plaintiff contended, that no words of limitation were meant, or could with any propriety of construction be applied to Thomas, the second son of Reginald; consequently, none which could operate to enlarge the estate for life expressly given him. It was not to be doubted, that the confusion in this part of the will, was owing to an omission in copying; and if the words supposed to have been omitted could be supplied, the second son here meant would appear to be, not the second son of Reginald (Thomas), but the second son of that second son; agreeable to the apparent intention of the testator, to limit his estate in succession to the several descendants of the then unborn second son of Reginald, in like manner as he had before done to those of the first son of Reginald, who was then in being. But supposing, for argument sake, that the omission could or could not be supplied, it was enough to shew that the second son [274] there meant could not be Thomas, the second son of Reginald; and for this purpose it would suffice to observe, that the very next limitation to take place, in failure of issue of that second son, was in favour of the third son of Thomas, the second son of Reginald. Now while Thomas had a third son, there could be no failure of the issue of Thomas. The event therefore which the testator had in contemplation, and in which he intended the third son of Thomas should take, could not be a failure of the issue of Thomas, the father of that third son, but of some other person; of whom the words "second son" in the limitation before-mentioned, must of necessity be understood.

But it is objected, that though the law will not permit the unborn issue of an unborn ancestor, to take the estates which the testator intended them; yet, in order as far as may be to effectuate that intention, it will give the ancestor a larger estate than was meant for him, i.e., an estate tail, under which his issue may take, instead of an estate for life. Not to mention how ineffectual such a construction is to attain the end proposed, because such tenant in tail may employ the power thereby given him over the estate (as in the present case) to defeat, rather than support the order of succession which he is expected to preserve; it was submitted, that if the policy of the law would not allow the sons of Thomas to take that estate which the testator designed them, it afforded, no reason for giving to the father an estate which the testator certainly did not design for him, and to disinherit the heir, by a disposition which the ancestor never thought of. It was therefore hoped, that the judgment would be reversed.

On the other side it was contended (J. Morton, J. Wallace), that Thomas, the second son of Reginald, took an estate tail. That it is a known and established rule of law, that where an estate is devised to one for life, and afterwards a limitation either immediate or mediate is made to the heirs of his body, such devisee takes an estate tail. That in the present case, the devise was to the second son of Reginald Brown for life, and after his decease to the first son of his body lawfully to be begotten, and the heirs male of the body of such second son, which was apprehended to be a clear estate tail in the second son of Reginald Brown; and the inserting a limitation to the first son of such second son, must be understood to mean no more than to direct the order of succession according to the laws of primogeniture; that is, to the second son of Reginald, and after him to his eldest sons and male descendants, according to the known course and order of succession; and the words to his first son, were not to be considered as designatio personæ, but in the nature of words of limitation, explained by the words heirs male of such second son; and in this sense, the word son was nomen collectivum. It was moreover apprehended, that the devise to the first son of one unborn, is too remote to take effect by way of purchase; and then the case was reduced to a devise to one for life, [275] and to the heirs male of his body, which is unquestionably an estate tail.