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prevail when it is manifest and lawful, it is necessary that an exception be admitted to qualify the rule of construction, when it stands in opposition to the rule of property; and such an exception being admitted, there could be no other controversy in this case, than touching the degree of evidence in the will of the testator's intention. That it cannot be disputed, that where the testator's intention is expressed clearly and unequivocally, it is a case within the exception; and that where the testator has in words, the sense of which cannot be doubted, declared his intention to be, that the words "heirs of the body" shall be understood to mean the first and other sons, they shall have the effect that the latter words would have had, if they had been used in the will. That no particular form of expression, no local situation of words in a will, can, from the nature of a testamentary disposition, be required to qualify the legal sense of the words "heirs of the body," provided the expression be clear and direct. That in the case of Coulson v. Coulson, and also in the will in this cause, after an estate for life to the ancestor, the succeeding limitation [421] is, and "after the determination of that estate, to trustees and their heirs, during the life of the ancestor, to support the contingent uses and estates therein after limited," etc. Here is the express declaration of the testator, that the uses and estates after limited, are intended by him to be by way of contingent remainder; and that the heirs of the body shall take. The whole expression together therefore is, that the heirs of the body shall take, by way of contingent use, which can be understood in no other sense, than that the first and other sons, and the heirs of their several bodies, shall take successively; and then that the daughters, and the heirs of their bodies, shall take when they shall come in esse. The words also contain a declaration, that the testator intends the ancestor to take such an estate as may determine in his life-time so that affirmatively and negatively, he is expressly excluded from taking an estate tail. That a devise to A. and his heirs, lawfully to be begotten, that is to say, to his first and other sons successively in tail, has been held to make A. tenant for life, with contingent remainders to his first and other sons, in Lowe v. Davis, 2 Lord Raym. 1661. That case differed from the present only in the form of the expression, and the situation of the explanatory words in the will; but the expression is as clear and unequivocal in the one will as the other. It was submitted therefore, that in the present case, the authority of Coulson v. Coulson ought not to overturn the testator's intention expressly declared.

But it was further argued, that as the decree now stood, the respondent Catherine Belchier was dismissed from being a party in the cause, and was not bound by the decree; so that if she should hereafter disturb the possession of the purchaser, he would not be able to enforce the decree against her, by supplemental bill for an injunction, but would be driven to a new suit; in which the point decided would be open to her to contest, and the decree would have no greater force than as a precedent upon the point; whereas, if their Lordships should be pleased to affirm the decree, as to the performance of the contract, whereby the appellant was bound to accept the title, and to pay his purchase-money, it was submitted to be reasonable, that he should have every security to protect the title that the occasion afforded. That the records of the Court of Chancery afford instances, where, in such cases, the court has, by the decree, kept the party claiming against the vendor's title, in court, and not dismissed the bill. In the case of Sayer v. Masterman, decreed on the 25th of June 1757, George Sayer, the plaintiff, contracted to sell an estate to the defendant Masterman, which Sayer took under his brother's will. And it being made a question by the purchaser, whether George Sayer took an estate for life only, or an estate tail under the will, he brought his bill against the purchaser for a performance of the contract, and against his daughter and only child, to have the question decided as between them; and by the decree the court declared, that the plaintiff, [422] on the death of Everard, became tenant in tail, and was capable, by fine, to bar the estate tail, and make a good title to the purchaser; and decreed the articles to be performed, and no costs on either side. In the case of Lamplugh v. Hebden, decreed the 18th of October 1742, upon the marriage of William Lamplugh, he settled an estate in strict settlement, with a proviso, enabling him to settle other lands, of the yearly value of £100, in exchange for the settled lands. He made a settlement accordingly by way of exchange, and contracted to sell the lands first settled to Hebden. Lamplugh filed a bill for the performance of the contract. When the cause first came on for hearing, the wife and only child of Lamplugh were not parties. The court ordered the cause to stand over, to make them parties, they