1833. DOE dem. V. 1. Is the remainder to the first male heir of the branch of the family of the testator's uncle, Richard Chilcott, a remainder in fee-simple or fee-tail? 2. Was the expression "first male heir" used by the testator to denote a person of whom an ancestor might be living? 3. At what time did this remainder vest in interest? 4. In what person did this remainder first vest in interest? 5. Could the remainder, if once vested in interest in any person, open or become devested so as to admit another person in preference to the person in whom it had so vested? The arguments on both sides being exhausted in the opinions delivered by the Judges, it would be superfluous to repeat them here; but the following pedigree may be found of use. 1833. DoE dem. V. PERRATT. TAUNTON J. Before I proceed to answer seriatim the questions propounded by your Lordships to the Judges, I must observe that, if the words "male heir," in the limitation to the first male heir of the branch of my uncle Richard Chilcott's family, be construed in its strict technical sense, the limitation must fail altogether, for there never has in that sense been such a male heir. In a will, the words heir male of A. mean heir male of the body of A.; Lord Ossulston's case (a); and though that simple form of expression be not used in this will of Emanuel Chilcott, yet I take it, the words male heir of the branch of my uncle Richard Chilcott's family, in effect are the same as male heir of the body of my uncle Richard Chilcott. This Richard Chilcott at his death left five daughters, and had no son; and although four of them married and had sons, yet as the known rule of law is, that under such a limitation the title must be derived entirely through males, Lit. sec. 24, 25.b., it is obvious that no male heir of the body of Richard Chilcott has ever come into esse, or ever can. If, therefore, the law will permit some person other than a male heir, properly so called, to be substituted, the limitation may take effect, and the courts of law are bound to find out what person under the circumstances is best entitled; or otherwise the will as to this part is void. In any way of considering this case, it is impossi- · ble to say that there are not serious difficulties, and no opinion can be given without considerable doubts. But effect, if possible, must be given to the will rather than it should fail; and in order to do this, I think the words "first male heir" must be construed to mean first male descendant. Richard. the uncle died in the lifetime and six years before the death of the testator, and the testator knew that he had left only daughters, and that (a) 3 Salk. 336. Joan, Joan, one of them, who married Isaac Winter, had two sons. It is not to be presumed, that he meant nothing by this devise to the branch of his uncle Richard's family. He must then have intended by the term "first male heir," some other person than one strictly coming within this appellation. I have premised these general observations, because it appears to me they furnish a key to many of the questions proposed. In answer to the first, my humble opinion is, that the remainder is a remainder in fee simple and not in tail. The term here, "first male heir," is a word of purchase, and a mere designation of the person who was to take. It is in the singular number, and excludes plurality. See Perriman v. Pierce. (a) In this respect it resembles the limitation in Archer's case, 1 Rep. 66., of "next heir male of A.;" in Clerke v. Day (b), of "daughter's heir;" in Walker v. Snowe (c), of right heir male of Sir E. to be begotten after the sixth son." In effect it is the same as if the devise had been to one by name; but being without words of limitation, which accompanied the several devises in the cases above mentioned, the remainder could have been only for life, if it had ended there. But the charge created by the words "yielding and paying unto such of the daughters of the aforesaid Richard Chilcott which shall be then living, the sum of 100%. each," enlarges the interest to a fee. It has been argued at your Lordships' bar, that where there is a gift to a special heir as heir male, it must give an estate tail, for such a gift defines the line of descent in which the estate is to go. And this, in some cases, where the word "heir" is used in the strict sense of 1833. DOE dem. V. PERRATT. 1833. DoE dem. V. PERRATT. where John de Mandeville, by his wife Roberge, had issue Robert and Maude, Michael de Morevill gave certain lands to Roberge and to the heirs of J. Mandeville, her late husband, on her body begotten; and it was adjudged that Roberge had an estate but for life, and the fee tail vested in Robert, (heirs of the body of his father being a good name of purchase), and that then when he died without issue, Maude, the daughter, was tenant in tail as heir of the body of her father per formam doni. "In which case, it is to be observed," says Lord Coke, "that albeit Robert being heir took an estate tail by purchase, and the daughter was no heir of his body at the time of the gift, yet she recovered the land per formam doni, by the name of heir of the body of her father, which, notwithstanding, her brother was, and he was capable at the time of the gift: and therefore, when the gift was made, she took nothing, but in expectancy, when she became heir per formam doni." So, in the case of the gift to a man and the heirs of the body of his ancestor, the donee, by reason he is named, will take an estate for his own life; and under the limitation to the heirs of the body, an estate in tail will execute in the person who can bring himself within that description. If the donee himself answer the description of heir of the body of the ancestor, it will for that reason execute in himself; if another person be the heir of the body of the ancestor, then in that other person. Thus, where A. having two sons, B. and C., covenanted to stand seised to the use of B. and the heirs male of his body on M. his wife to be begotten; and for want of such issue, to the heirs male of his (d.'s) own body; and for want of such issue, to his own right heirs for ever; B. the eldest son died, leaving issue one son and several daughters; A. died; and the son of B. died without issue: the Court held the limitation to the heirs male of the body of A. to be words of purchase, and to vest in the |