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being the persons interested, to insist that the power contained in the proviso was not well executed; and they were made parties accordingly. At the final hearing, the court decreed the articles for the purchase to be carried into execution; reserved the costs of an enquiry directed as to what rents Lamplugh had received; and did not give costs as to the rest of the cause. The court did not dismiss the bill against any of the parties in either of these cases.

On the part of the respondents, the vendors, it was contended (J. Mansfield, J. Lee), that if Mrs. Belchier would have taken an estate tail in the premises in question, in case she had survived the testatrix, there was no doubt but that the decree was right; for the limitations to the respondent Mrs. Hodgson, are the same in terms with those to Mrs. Belchier; and the devise to Mrs. Belchier having become void by her death, in testatrix's life-time, the devise to Mrs. Hodgson immediately took place. That Mrs. Belchier would have taken an estate tail under this will if she had survived the testatrix, appears from this settled and established rule of law, applicable as well to the construction of wills, as of deeds; viz.

When the ancestor by any gift or conveyance takes an estate of freehold, and in the same gift or conveyance an estate is limited, either mediately or immediately, to his heirs in fee, or in tail, that always in such cases (the heirs) are words of limitation of estate, and not words of purchase.

In this case Mrs. Belchier would have taken an estate of freehold by the devise to her for life; and an estate was afterwards limited in the same will to the heirs of her body, and therefore, under the rule above stated, the words (heirs of her body) must be words of limitation of estate, and not words of purchase, i.e. the estate tail must have vested in her. That the case of Coulson v. Coulson, which was determined by the unanimous opinion of the Court of King's Bench, in the year 1744, and afterwards confirmed by the Lord Chancellor, was in point with the present; indeed the cases were so exactly similar, that the will in that case seemed to have been the precedent from whence this was taken. This decree was therefore founded not only upon a settled rule of law, but also upon a solemn resolution in the point; and overturning established cases upon which some titles to real estates certainly do, and many [423] probably may depend, is the most dangerous way of removing land marks.

On the part of the respondent Catherine Belchier it was said (J. Wilson), that if under the will of Susan Jolland, her sister Elizabeth Belchier would have taken only an estate for life, in case she had survived the testatrix, and the subsequent limitation to the heirs of her body, was a contingent remainder to take effect upon her death, the plaintiff's bill was rightly dismissed with costs, as against this respondent; insomuch as, if that be the true construction of the will, it would not be disputed, but that in the event which had happened, she took an estate tail in possession, and therefore the plaintiff's in equity were wrong throughout. That this was the true construction of Susan Jolland's will, might appear from the following consideration; viz. that she had limited the estate to Elizabeth Belchier, for life expressly, that she had considered it as an estate determinable in the life-time of Elizabeth Belchier, and had provided for the preservation of contingent remainders, which were not created unless by this limitation; and it was unreasonable to suppose, that she would be providing for the preservation of estates which she did not intend to create. That by this construction, the testatrix's intention that the descendants of one sister should enjoy one part of her estate, and the descendants of the other sister should enjoy another, would be carried into execution; whereas, if the sisters were held to take estates tail, that intention would he frustrated, and one sister would take the whole, in exclusion of the child of the other. And that if the parties to the agreement, the performance of which was the object of this suit, thought it necessary to bring this respondent before the court, in consequence of that agreement, to which she was no party, it was but reasonable that they should pay her the costs of her coming there, even though she had no title.

After hearing counsel on this appeal, the following questions were put to the Judges; viz. first, "Whether Catherine Belchier, the daughter of Elizabeth Belchior, took any and what estate under the will of Susan Jolland?" Second, "What estate Catherine Hodgson, late Jolland, took under the said will?" And the Lord Chief Baron of the Exchequer having delivered the unanimous opinion of the judges present, upon the first question, that Catherine Belchier took no estate under the will of Susan Jolland; and upon the second question, that Catherine Hodgson, late Jolland, took an estate for life in all the premises, not merged by the devise to the heirs of her body;