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But it was objected on the part of the plaintiff in error, that the intent of the testator is the governing rule in the construction of wills; and that in the present case, it was the testator's plain intention to give to the sons of his brother Reginald, estates for life only, with remainders to their first and second sons in tail male successively; and that there was an omission in the will, immediately following the devise to the first son of the body of the second son of Reginald, of a limitation to the first and other sons of such first son, and the heirs male of their bodies successively; and also of a limitation to the second son of such second son, which ought by construction to be supplied.

To this it was answered, that the principle was not controverted, that the intent of the testator collected from the will is to govern the construction; but with this restriction, that such intent be consistent with the rules of law. Suppose the intent of the testator to be clearly as contended, and that the supposed omission in the will might be supplied by construction, yet that intent could not take effect; as it would establish a limitation of a possibility upon a possibility, and manifestly tend to a perpetuity, by a suspension of the inheritance from vesting, and consequently render the estate unalienable for a longer time than the policy of the law allows, which has not yet been suffered to continue longer than a life or lives in being, and 21 years beyond.

It was farther objected, that if the issue of the sons unborn could not take as purchasers, the limitation to them was void to all intents, and the unborn sons had only estates for life given them by the will.

But this objection still proceeded upon the presumption, that the supposed omission in the will ought to be supplied by construction. Though limitations to issue male of unborn sons cannot vest in them as purchasers, yet it does not follow that they must be totally rejected; on the contrary, such limitations manifest the intent of the testator, that such issue should succeed to the estate; and the only way for that intent to take place, was to construe the sons of Reginald Brown to be tenants in tail male, and then their issue would inherit: whereas, the construction contended for by the plaintiff in error, would totally preclude the issue from taking, and defeat the clear intent of the testator, expressly declared in his will, that the estate should continue in his name and blood as long as God would permit. And although the law will not allow some limitations in wills to take effect in the very mode a testator wishes, yet justice requires, and the practice of courts authorises such an exposition of the will, as will best serve to effectuate the general intent of the testator. And wherever a court supplies by construction, any seeming defect in the language, it is always to support, not to defeat, the intent of the testator; whereas, if the supposed omission in the present case were to be supplied by construction, in favour of the plaintiff, it would only be for the purpose of rejecting it the [276] next moment as void, and defeating the general intent of the testator.

It was however insisted, that the act of parliament had concluded the question, and was a legislative exposition of the will, that the second son of Reginald Brown was tenant for life only.

But to this it was said, that whatever might be the effect of that act, with respect to persons claiming under the same, yet the real rights of the parties, with respect to other persons, could not be thereby varied. For the act was not meant, nor could be construed, to make any alteration in the limitations of the will; it was solely to protect, in all events, the persons who should become lessees, upon the terms of rebuilding the premises, and expending money upon the faith of that protection. With respect therefore to a question of right between the claimant under the testator's will, it was submitted, that the determination of it could not be affected by the act of parliament.

After hearing counsel on this writ of error, the following question was put to the Judges, viz. "Whether Thomas, the second son of Reginald Brown, took any and what estate, under the will of Joshua Brown?" Whereupon the Lord Chief Baron of the Court of Exchequer, having conferred with the Judges present, delivered their unanimous opinion, "That Thomas, the second son of the said Reginald Brown, took an estate tail under the will of the said Joshua Brown." It was therefore ordered and adjudged, that the judgment given in the Court of King's Bench should be affirmed, and the record remitted and it was further ordered, that the plaintiff in error should pay to the defendants in error, the sum of £5 for their costs in the House. (Jour. vol. 31. p. 493.)