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of the plaintiff. Whereupon a writ of error was brought in the Court of King's Bench in England, where the former judgment was reversed.

Upon this judgment of reversal, a writ of error is now brought, returnable in parliament and on behalf of the plaintiff (J. Mansfield, J. Wilson, F. Bower) in error it was said to be manifest, from a variety of circumstances in the will, that the testator intended the whole of his Bantry estate [441] (except the lands in Inchiclough, devised to the defendant in error for life) should always be possessed by one and the same person, which could not be, if the construction contended for by the defendant in error was allowed, in as much as that part of the estate included in the settlement, must necessarily go to the plaintiff in error. That it was plain the testator did not mean to exclude the issue of his eldest son from the inheritance; the plaintiff in error, and the other children of Simon, being alive and known to the testator at the time he made the devise to Simon and the heirs of his body, under which limitation, if not disturbed, he must know the lessor of the plaintiff would succeed to the estate if he survived his father, which in the ordinary course of things was to be expected; and it is a well known maxim, that an heir is not to be disinherited without express words or necessary implication. That the remainder to the defendant in error was expressly limited to take effect only in default of issue of the testator's son Simon, and no devise was made of the estate until such default should happen; and it is a principle in law, that the heir shall take every thing which is not devised from him. That it was conceived, courts of justice have been always anxious to effectuate the intentions of testators, where they are not contrary to rules of law or settled authorities; and there is no case to be found in which it hath been adjudged, that a devise to a man and the heirs of his body, lapsed for the benefit of a person in remainder, from the circumstance of the first devisee dying in the testator's life-time, where it has appeared that the heir of the body of the first devisee was likewise heir at law of such testator.

On the other side (Ll. Kenyon, J. Wallace, T. Davenport) it was said to be clear, that if Simon, the testator's eldest son, had survived his father, then he would have taken an estate tail in the estates now in dispute, under the limitation in the will of his father, according to the rule laid down in Shelley's case, and confirmed by the case of Coulson and Coulson: but by the established rules of law, the devise to Simon became void by his death in the life-time of the testator, and the remainder to Hamilton the second son of the testator, and who survived him, took effect immediately on his father's death. That if this doctrine prevailed, it decided the case: it was necessary therefore to shew that it had been adopted in early times, and had continued down to the present.—It appears to have been established in the early part of the reign of Queen Elizabeth; and in the latter parts of that reign, and at different periods afterwards, recognised by a variety of cases down to the year 1780, when the last case of this nature came before the House. That this doctrine, so established, did not appear to be any where judicially contradicted or impeached; but there appeared at the end of the report of the case of Fuller and Fuller, in Croke, Eliz. 422, a dictum of Lord Chief Justice Popham, that where a devise is to a son in tail, his issue, in case of his death in the life-time of his father, shall take before the remainder-man; and this was the only authority cited, on the argument in the King's Bench in England and Ireland, in [442] favour of the plaintiff in error; but this at most was an extrajudicial opinion of Lord Chief Justice Popham; and in truth there is no distinction in this respect as to the objects of the devise, whether a sole heir, coheirs, or strangers; for if such a distinction could operate in favour of a sole heir, it would operate also in favour of coheirs; and yet in the case of Ambrose and Hodgson, no such distinction was made, which was decided between a sister of the testatrix, who survived her, and the daughter of another sister who died in the lifetime of the testatrix, and where the devisees were the same as the present. But if there was any legal ground for such a distinction, an insuperable difficulty would arise, how the issue of the first devisee are to take if in fee, as it had been argued, then all the subsequent limitations in the will must be destroyed; and if it be contended that they should take the estate until there be a total failure of issue of the first devisee, then such a construction would have precisely the same effect in the case of strangers, as in the cases of a sole heir or coheirs. Whatever might be the hardships of this case, under the particular circumstances stated in the verdict, yet the adjudged cases were so strong and uniform, that it was safer and