1804. Feb. 10th. Devise to testator's first son by his wife begotten or to be begotten for life, remainder to trustees to preserve con tingent remain ders; remainder to the several heirs male of such first son lawfully issuing, so as the elder of such sons and the heirs male of his body shall always be ferred and take pre before the younger and JOHN POOLE v. LUCY POOLE and Others. HIS was a case from the Court of Chancery. THIS James Poole, by his will bearing date the 6th February 1784, gave and devised his freehold and copyhold estates in the words following: "Item, All my freehold and copyhold estates called Blakelow, within the manor and forest of Macclesfield in the county of Chester, and all other my real estate whatsoever and wheresoever, and of what nature or kind soever that I shall die possessed of, or entitled unto at the time of my decease, in possession, reversion, remainder, or expectancy, I give, devise and bequeath unto John Davenport and John Edison, and their heirs; to the use of them and their heirs upon trust, for the several uses, intents and purposes hereinafter mentioned and declared of and concerning the same (that is to say), in trust, that they receive and take the rents and profits of my said estate, for the use and benefit of my first son by Lucy my wife, begotten or to be begotten, during his life; and also upon trust to preserve the contingent remainders from being defeated or destroyed, and after his decease in trust for the several heirs male of such first son lawfully issuing, so as the elder of such sons, and the heirs male of his body, shall always be preferred and taken before the younger and the heirs male of his body, and for want of such issue, in trust for my second, third, and fourth, and all and every other son and sons for their several respective lives; and also upon trust to preserve the contingent remainders from being defeated or destroyed; and after their several deceases in trust for the several heirs male of their several and respective bodies lawspective bodies fully issuing, so as the elder of such sons, and the heirs male of his lawfully issuing, body, shall be always preferred and take before the younger of the of such sons, and same sons, and the heirs male of his or their body and bodies, and the heirs male of his body; re mainder to the testator's 2d, 3d, 4th, and all and every other son and sons for their several and re spective lives; remainder to trustees, to pre serve, &c.; remainder to the several heirs male of their several and re so as the elder the heirs male of his body, shall be always preferred and take before the younger of the same sons, and the heirs male of his and their body and bodies; remainder to the testator's first and other daughters for their lives; remainder to trustees, &c. remainder to the several heirs male of their several and respective bodies lawfully issuing, so as the elder of such daughters, and the heirs male of her body, shall always be preferred and take before the younger of the same daughters, and the heirs male of her and their body and bodies. There were other clauses in the will, by which after giving an estate for life to the first taker, the testator limited to trustees, &c. ; remainder to the first and other sons of such first taker, and the heirs of their bodies, so as the elder of such sons, and the heirs of their bodies, should always be preferred before the younger of the same sons and the heirs male of their bodies. Held that the first son of the testator took an estate tail.* Vide Pierson v. Vickers, 5 East, 548. Doe d. Strong v. Goff, 11 East, 668. Roe d. Clemett v. Briggs, 16 East, 406. Doc d. James v. Hallett, 1 M. & S. 124. for for want of such issue in trust for my first daughter, and every other my daughter and daughters for their several and respective lives, for their several sole and separate use, free from the power or debts of any husband they may any of them marry; and also upon trust to preserve the contingent remainders from being defeated and destroyed; and from and after their several deceases, in trust for the several heirs male of their several and respective bodies lawfully issuing, so as the elder of such daughters and the heirs male of her body, shall always be preferred and take before the younger of the same daughters, and the heirs male of her and their body and bodies. And I do hereby empower such persons as shall be entitled to the possession of my said estates, to settle by way of jointure upon any woman with whom they may marry, any part of such estates not exceeding the value of 500l. per annum. And I do hereby direct that my eldest son shall not be entitled to the possession of my real or personal estate till he attain the age of 27 years; but I do hereby empower my executors, at their discretion, to allow any sum for his maintenance and education not to exceed 300l. per annum, till he attain the age of 21 years, and from that time to pay to my said son the sum of 500l. per annum till he attain the age of 25 years, and from that time the sum of 1000l. per annum till he attain the said age of 27 years. Item, all my freehold and copyhold estate, and all other my real estate whatsoever and wheresoever, and of what nature or kind soever, that I shall die possessed of or entitled unto at the time of my decease, in possession, reversion, remainder or expectancy, and all the rest, residue, and remainder of my personal estate, and every part and parcel thereof, after payment of my debts and legacies last mentioned, in failure of such issue by me as aforesaid, and not otherwise, I do hereby give, devise, and bequeath the interest, rents, and profits of the same, and every part and parcel thereof, unto the said John Davenport and John Edison and their heirs, to the use of them and their heirs, subject to the annuities by me hereby given, in trust that they lay out and invest my said personal estate in the purchase of freehold or copyhold lands, tenements and hereditaments in England or Wales in their names as aforesaid, to the use of them and their heirs, in trust to and for the several uses, interests, and purposes hereinafter-mentioned of and concerning the same, (that is to say,) upon trust that they permit and suffer my nephew Thomas Poole, now residing in the East Indies, son 1804. POOLE v. POOLE and Others, of 1804. POOLE บ. POOLE and Others. of my nephew John Poole, to receive and take the rents and profits of all and every my said estates, for and during his life, subject to and chargeable with the payment of an annuity of 2001. per annum to his father the said John Poole during his natural life, payable quarterly; and also upon trust to preserve the contingent remainders hereinafter limited, and after his decease, in trust to permit my nephew Anderton Poole, son of my late brother Joseph Poole, to receive and take the rents and profits of my said estate for his life, subject to the said annuities; and also upon trust to preserve the contingent remainders hereinafter limited; and after his decease in trust for the first and every other son and sons of the body of the said Anderton Poole, lawfully to be begotten, successively as they shall be in priority of birth and seniority of age, and the several heirs of their respective bodies lawfully issuing, so as the elder of such sons, and the heirs of his body, shall always be preferred and take before the younger of the said sons, and the heirs of his and their bodies; and for want of such issue, in trust to permit and suffer the said James Poole, son of my late brother Joseph Poole, to receive and take the rents and profits of my said estates for his life, subject to the said annuities; and also to preserve the contingent remainders hereinafter limited; and after his decease, in trust for the first and every other son and sons of the body of the said James Poole, lawfully to be begotten, successively as they shall be in priority of birth, and seniority of age, and the several heirs of their respective bodies lawfully issuing, so as the elder of such sons, and the heirs of his body, shall always be preferred and take before the younger of the same sons, and the heirs of his and their bodies; and for want of such issue, to John Poole Mair, son of my niece Elizabeth Mair, and his heirs for ever." The testator afterwards died without having revoked or altered his will. He left John Poole his only son and heir at law, then an infant under the age of 21 years, and one daughter. The said John Poole, the testator's son, has attained the age of 27 years. The testator's copyhold estates were duly surrendered by him to the use of his will. The question was, What estate John Poole, the son of the testator, took under the will of the testator? Williams Serjt. for the Plaintiff, was desired by the Court to argue this case as if the limitations in dispute had created legal estates. estates. John Poole the Plaintiff took an estate tail. The limitation to John Poole in this case amounts to nothing more than a devise to him for life, remainder to trustees to preserve contingent remainders, remainder to the heirs male of his body, and for want of such an issue then over. For the words 66 so as the elder of such sons and the heirs male of his body shall always be preferred and take before the younger and the heirs male of his body," are nothing more than the law would have implied; for the sons of every tenant in tail take by priority of birth and seniority of age. Expressio eorum quæ tacite insunt nihil operatur. Had these unnecessary words been omitted John Poole would clearly having taken an estate tail, notwithstanding the express limitation to him for life, with remainder to trustees. Sayer v. Masterman, Ambl. 344. Wright v. Pearson, Ambl. 358. Austin v. Taylor, Ambl. 376., and Jones v. Morgan, 1 Bro. Chanc. Cas. 206. It is clear that the testator did not intend the estate to go over so long as there should be issue of his son John Poole. But if the issue of John Poole were to take as purchasers, then if John Poole had had a son, and that son had died leaving a son, the estate upon the death of John Poole would have gone over to the daughter of the testator. The case of Robinson v. Robinson, 1 Bur. 38. shews the extent to which Courts will go in giving an estate tail, in order to effectuate the general intention of a testator; and also Doe d. Dodson v. Grew, 2 Wils. 322. Those two cases are recognised, and the principle upon which they proceeded was acted upon in Doe d. Candler v. Smith, 7 T. R. 531., and Doe d. Cock v. Cooper, 1 East, 229. It is remarkable, that in the subsequent devise to Anderton Poole for life, the testator, after the limi tation to trustees to preserve contingent remainders, expressly limits the estate to the first and every other " son and sons" of the body of the said A. Poole in the usual manner; when therefore he wished to give an estate for life and designate the subsequent takers, it is evident, that he knew how to express himself. The case of Goodtitle d. Sweet v. Herring, 1 East, 264., which may perhaps be urged as an authority against the Plaintiff, is very distinguishable from this; for the testator there employed words which very plainly shewed that he meant to use the words "heirs male of the body" in the sense of sons, and not in their usual sense; and it was therefore holden, upon the authority of Lowe v. Davis, 2 Ld. Raym. 1561., that as the testator had explained the meaning of the 1804. POOLE V. POOLE and Others. word 1804. POULE v. POOLE and Another. word "heirs," by subsequent expressions, that word must be taken in the sense which he had assigned to it. But in the present case there are no words to denote an intention to use the words "heirs of the body" in a different sense from that which the law puts upon them. In the limitation to the second, third, and other sons, it is obvious that the words "such sons" refer to those second, third, and other sons, and not to the heirs of the body of those sons; under that part of the devise therefore those sons must have taken an estate tail; and as it cannot be contended that the limitation to the first son is to be construed differently from the limitation to the other sons, he must also take an estate tail, though the word "sons" in the plural number, which follows the limitation to him, does not seem to have any appropriate application. The expression "so as the elder of such sons," &c. appears to have been inserted by some mistake in the first limitation, as one son only had been mentioned, though the same expression has an appropriate application in the limitation which follows. Lens Serjt. contrà. It may be admitted as a general rule, that neither the devise of an express estate for life to the first taker, nor the interposition of a devise to trustees to preserve contingent remainders, if followed by a devise to the heirs male of the body of the first taker, will prevent him from taking an estate tail. It is not necessary therefore to comment upon any of the cases which have been cited to this point. The only question here is, Whether the words "heirs male of the body" have not been so explained by the testator that they must in this will be construed to mean first and other sons. The cases of Lowe v. Davis and Goodtitle v. Herring admit that the words "heirs male of his body," if unexplained, import an estate tail, but establish this further rule, that if the testator appear to have put a different sense upon them by using them as synonimous to son or sons, the sense so put upon them must prevail. Here the testator in his devise to his first son and the heirs male of his body applies the words "such sons" to "heirs male of his body," there being no other antecedent to which those words can be applied; he therefore considers the latter expression as synonimous with the former; and having put this sense upon it, the Court must take it in that sense. Unless therefore that part of the first devise be rejected respecting the preference of the elder to the younger sons, the Court must take the testator to have given only an estate for life to John Poole, with re mainder |