1846. DOE dem. Y. ANGELL. clear special designation of an heir male, other than the Queen's Bench. heir general: he must be a male descendant claiming through a succession of male heirs. The person so designated was John Angell, the father of the lessor of the plaintiff. The case on the other side rests on the doctrine in Co. Lit. 24. b., where the diversity between a descent and a purchase is illustrated as follows. "When a man giveth lands to a man and the heirs females of his body, and" [the man to whom the gift is made] "dieth, having issue a son and a daughter, the daughter shall inherit; for the will of the donor (the statute working with it) shall be observed. But in case of a purchase it is otherwise: for if A. have issue a son and a daughter, and a lease for life be made, the remainder to the heirs females of the body of A. A. dieth, the heir female can take nothing, because she is not heir; for she must be both heir and heir female, which she is not, because the brother is heir, and therefore the will of the giver cannot be observed, because here is no gift, and therefore the statute cannot work thereupon. And so it is if a man hath a son and a daughter, and dieth, and lands be given to the daughter, and the heirs females of the body of her father, the daughter shall take nothing but an estate for life, because there is no such person, she being not heir. But where a gift is made to a man, In Michaelmas term (November 17th), 1845, before Lord Denman C. J., Volume IX. 1846. Doɛ dem. v. ANGELL. and to the heirs female of his body, there the donee (a) Hob. 29. 31. (5th ed.); S. C. Moore, 860. (d) Prec. Ch. 54. (g) 2 P. Wms. 1. (c) Freem. C. B. 216. 225. (e) 3 Salk. 336. (h) 1 Vent. 372. 381. (i) 1 Ca. Ch. 145. (cited in Davy v. Davy). (k) 1 Ld. Røym. 185. S. C. cited in 1 Str. 41. 1846. Doɛ dem. V. ANGELL. for ever; if a female, his next heir should allow her an Queen's Bench. annuity out of the lands, and hold the rest to him and his heirs male for ever: and the heir general, being a female, was excluded, because the will implied that by heir male was meant a special kind of heir other than the heir general. In Brown v. Barkham (a) (s. D. 1716) Lord Couper held clearly that, under a devise to the heirs male of the body of the devisor's great grandfather, a male descendant of a younger son could take, though the daughter of an elder son was heir general: and, instead of founding his decree on special circumstances, he expressly denied Lord Coke's proposition. In Wills v. Palmer (b) (A.D. 1770), under a settlement to the heirs male of the body of the settlor, his son by a second wife was held to be entitled in preference to the heir general, the daughter of a deceased elder son. In Goodtitle dem. Weston v. Burtenshaw (c) (A. D. 1772) an estate was settled, after the decease of N. and his intended wife, to the first and other sons of the marriage in tail male, and, after certain other limitations which failed, to the heirs female of the marriage and her or their heirs: there were three sons of the marriage; two died without issue; the third left a son, who died, leaving a daughter and only child. There were six daughters of the marriage, all of whom died except one, who was the wife of the lessor of the plaintiff: the defendant claimed under a purchase from the daughter of the surviving son, who was N.'s grand (a) 1 Str. 35; S. C. Prec. Ch. 442. 461; and, as Newcomen v. Bark. ham, 2 Vern. 729., 1 Eq. Ca. Abr. 215. Volume IX. 1846. Doɛ dem. V. ANGELL. daughter and heir at law. It was objected that the wife of the lessor of the plaintiff was not the very heir, but the grand-daughter was heir, and therefore the former did not answer to the description of heir female in toto: but this objection was clearly overruled. In all these cases the heir specially designated was held entitled, though not heir general. At the time of the writing of Hargrave's note they had not been all decided: and, in a note, (2), to Co. Litt. 164. a., he says, after referring to the former note: "Since the writing of that note, a case has been published, in which the Court of King's Bench, after three arguments, decided against applying the rule to a will"; and he then refers to Wills v. Palmer (a). Coke's doctrine is also considered by the text writers to be now over-ruled; 2 Jarman on Wills, 7-9, Burton's Elementary Compendium, 253, (6th ed.), 1 Roberts on Wills, 426, 427 (3rd ed.), 1 Powell on Devises, 319, &c. (3d ed.). Lord Cowper's decree in Brown v. Barkham (b) was afterwards confirmed by Lord Hardwicke ; Newcoman v. Bethlem Hospital (c). It is clear in the present case, from the whole of the will, that the devisor meant to prefer such a particular male heir as he describes to any other. He assumes the existence of a descendant (d) of Mrs. Browne, who was an Angell; yet he overlooks her issue: he must have known that such descendant was heir general; and, had (a) 5 Burr. 2615. (b) 1 Str. 35; S. C. Prec. Ch. 442. 461; and, as Newcomen v. Barkham, 2 Vern. 729, 1 Eq. Ca. Abr. 215. (c) Ambl. 8, (d) Called in the will William Browne. William Browne, however, (according to the pedigree) died some years before the first making of the will; and the only grandchild of Mrs. Frances Browne then alive was Benedict, the defendant's father. 1846. Doɛ dem. V. ANGELL. he not understood that the heir general was superseded Queen's Bench. by the heir specially designated, he would not have devised the estates to that heir in remainder, inasmuch as he would have them as heir at law. The devisor directs that the estate shall "always be in one hand": but this might be defeated if they went to females: and he accordingly endeavours to prevent parceners from taking, by exhausting the male heirs. [Coleridge J. Might it not be said, on the other hand, that this shewed his apprehension that the estates might come to a female under the earlier words of the devise?] The issue of Katherine, the aunt of the then heir general, are never to take till after the Brownes. The devise of the remainder to heirs male must be construed as pointing to heirs male of the body; Lord Ossulston's Case (a). Here is a special exclusion, to carry which into effect the devisor gives to relations of whose existence he did not know. He had one object, namely, that the taker of the estates should be male heir and special heir. [Coleridge J. What meaning has "descendants"?] It means persons descended through males. In devises the ordinary interpretation will be given: and all the expressions here point to persons of the male line. Thus : "the males to take place first, so long as there are any, through every descent": in which there is no ambiguity. It may therefore be argued that such words as are used in this will are not contemplated by Coke and therefore it is scarcely necessary to controvert his general doctrine. The introduction of the words "heirs male of the body" would make no difference ; "heirs male" simply would have the same effect; 2 Powell on Dev. 423. 3d ed. This agrees with the view taken in (a) 3 Salk. 336. |