tion to be, that the first taker shall have only an estate for life with no power over the inheritance. So, where a gift was in trust for the separate use of a married woman for life, she alone to receive the rent, and her husband not to intermeddle, and, after her decease, to the heirs of her body, the wife took only for life, and the words "heirs of her body" were words of purchase; for if the wife takes the inheritance in tail, the husband will have curtesy, which would be contrary to the clause against his intermeddling. So, where a testator directed an estate to be settled on a married woman for life for her separate use, and at her death on her issue, she was not tenant in tail; for there would be only an equitable estate in her, while a legal estate would vest in her issue, and the two estates could not coalesce in such manner as to make her tenant in tail.2 So a direction to settle land on A. and the heirs of his body "as counsel shall advise," 3 or as "the executors shall think fit," 4 implies that a simple estate tail is not intended, for if it was there would be no need of the additional words. And where the trust was to settle on A. for life without impeachment of waste, remainder to his issue in strict settlement, the court directed the estates to be settled on A. for life, without impeachment for waste, remainder to his sons successively in tail male, remainder to his daughters as tenants in common in tail male, with cross-remainders in tail male, and with limitations to trustees to preserve contingent remainders.5

1 Roberts v. Dixwell, 1 Atk. 607; West, Ca. t. Hardw. 536; Turner v. Sargent, 17 Beav. 515; Stanley v. Jackman, 5 W. R. 302; Stonor v. Curwen, 5 Sim. 264; Shelton v. Watson, 16 Sim. 542.

2 Stonor v. Curwen, 5 Sim. 268; Verulam v. Bathurst, 13 Sim. 386; Coape v. Arnold, 2 Sm. & Gif. 311; 4 De G., M. & G. 574. And see Collier v. McBean, 34 Beav. 426.

a White v. Carter, 2 Ed. 366; Amb. 670.

4 Read v. Snell, 2 Atk. 642.

5 Trevor v. Trevor, 13 Sim. 108; 1 H. L. Ca. 239; Coape v. Arnold, 2 Sm. & Gif. 311; 4 De G., M. & G. 574.

§ 370. Where a testator devised his estate to trustees for the term of six years, and to be then divided among his children or their issue, and conveyances to be given therefor, and directed that "in each deed or writing to any of my children shall be inserted and expressed a clause limiting such grant or interest conveyed to the grantee for life, with remainder over to the right heirs of such grantee, their heirs and assigns for ever," it was held that the deeds must be so drawn as to give the children a life-estate only, and not a fee in their shares.1 The same rule of construction has been established and enforced in Georgia,2 and in Tennessee, and has been recognized in South Carolina, Maryland, and Pennsylvania.6

§ 371. It will be observed that "heirs of the body" and "issue are not synonymous terms. "Heirs are technical words of limitation, while the word "issue" is prima facie a word of purchase; and courts have ordered a strict settlement when the word "issue" was used, when it would probably have been otherwise if the word "heir" had been used.7 The words "heirs of the body," and "issue,” 9

1 Wood v. Burham, 6 Paige, 515, affirmed on appeal, 27 Wend. 9. The rule in Shelley's case was in force in New York at the time, and would have applied to this case if it had not been an executory trust. The rule in Shelley's case was soon after abrogated in that State, and the decision has ceased to be important; nor is the subject-matter now under discussion of importance in any State where the rule in Shelley's case is abolished by statute.

2 Edmondson v. Dyson, 2 Kelly, 307; Wiley v. Smith, 3 Kelly, 551, 559; Neves v. Scott, 9 How. 197; 13 How. 268.

3 Loring v. Hunter, 8 Yerg. 4.

4 Garner v.

Garner, 1 Des. 437; Porter v. Doby, 2 Rich. Eq. 49.

5 Horner v. Lyeth, 4 H. & J. 431.

Findlay v. Riddle, 3 Binney, 139.

7 Meure v. Meure, 2 Atk. 265; Haddelsey v. Adams, 22 Beav. 276;

8 Bastard v. Proby, 2 Cox, 6.

Meure v. Meure, 2 Atk. 265; Trevor v. Trevor, 13 Sim. 108; Ashton v. Ashton, ut supra.

embrace daughters; for they equally answer the description, and are equally the objects of bounty; and where the words are words of purchase, the settlement, in default of sons, will be made upon daughters, as tenants in common in tail, with cross-remainders.1 In the United States, the settlement would be made upon sons and daughters in common, with cross-remainders in default of issue, unless the direction was to settle upon some particular one of the heirs of the body or issue.

§ 372. If the limitations of an executory trust are imperfectly or defectively declared in a will, the court will rectify the limitations, and order the settlements to be made in accordance with the intention of the testator, and to be drawn up in proper form to effectuate that intention.2 But if a testator undertake to be his own conveyancer, and himself draw up in his will all the particulars of the limitations upon which he desires his property to be settled, intending them to be final and to be carried into effect in the trusts, the court is bound by the words, as in Austen v. Taylor, where Lord Rochford v. Fitzmaurice, 2 Conn. & Laws. 158; Bastard v. Proby, 2 Cox, 6; Dodson v. Hay, 3 Bro. Ch. 405; Stonor v. Curwen, 5 Sim. 264; Horne v. Barton, G. Coop. 257; Crozier v. Crozier, 2 Conn. & Laws. 311; Ashton v. Ashton, cited in Bagshaw v. Spencer, 1 Coll. Jur. 402; McPherson v. Snowden, 19 Md. 197. Where a testator intends the estate to go to the whole body of persons, in legal succession, constituting in law the entire line of descent lineal, he evidently means the same thing as if he had said "issue," or "heirs of the body;" or if he intends it to go to the whole line of descent, lineal and collateral, he means the same thing as if he had used the term "heirs," which, as a word of art, describes precisely the same line of descent. Per Agnew, J., in Yarnall's App. 70 Pa. St. 340. And see Kleppner v. Laverty, 70 Pa. St. 70; Kiah v. Grenier, 1 N. Y. Sup. Ct. 388.

1 Marryat v. Townley, 1 Ves. 105; Meure v. Meure, 2 Atk. 265; Trevor v. Trevor, 13 Sim. 108; 1 H. L. Ca. 239; Bastard v. Proby, 2 Cox, 6; Ashton v. Ashton, in Spencer v. Bagshaw, ut supra; Shelton v. Watson, 16 Sim. 543.

2 Franks v. Price, 3 Beav. 182; Doncaster v. Doncaster, 3 K. & J. 26; Rochford v. Fitzmaurice, 1 Conn. & Laws. 173; 2 Dr. & War. 21.

Northington said that "the testator had referred no settlement to the trustees to complete, but had declared his own uses and trusts," and that there was no authority in the court to vary them.1

§ 373. When a testator has devised lands in strict settlement, and then devises personal chattels as heirlooms, to be held by, or in trust for, the parties entitled to the use of the real estate under the limitations of the settlement; or when he expresses a desire that the heirlooms should be held upon the same trusts as the real estate, "so far as the rules of law and equity will permit," the tenant for life will have the use of the heirlooms, and they will vest absolutely in the first tenant in tail, upon his birth, though he die immediately after.2 In such cases, the court regards the trust, either as executed, or, if the trust is executory, that it has no authority to insert a limitation over in case of the tenant in tail dying under twenty-one. But such a limitation over is not illegal ; and if the bequest of the heirlooms is clearly executory, and if the intention of the testator is plainly manifested that no person shall take the chattels absolutely who does not live to become possessed of the real estate, the court will execute the intention by directing the insertion of a limitation that the absolute interest of the first tenant in tail, if he should

1 Austen v. Taylor, 1 Ed. 368. This case, however, has been criticised. See Green v. Stephens, 19 Ves. 76; Jervoise v. Northumberland, 1 J. & W. 572. And see East v. Twyford, 9 Hare, 713; Meure v. Meure, 2 Atk. 265; Harrison v. Naylor, 2 Cox, 247.

2 Foley v. Burnell, 1 Bro. Ch. 274; Vaughan v. Burslem, 3 Bro. Ch. 101; Newcastle v. Lincoln, 3 Ves. 387; Carr v. Erroll, 14 Ves. 478; Trafford v. Trafford, 3 Atk. 347; Doncaster v. Doncaster, 3 K. & J. 26; Rowland v. Morgan, 6 Hare, 463; 2 Phill. 674; Gower v. Grovesnor, Barn. Ch. 54; 5 Madd. 337, overruled; Evans v. Evans, 17 Sim. 108; Tollemache v. Coventry, 2 Cl. & Fin. 611; 8 Bligh (N. s.), 547; Stapleton v. Stapleton, 2 Sim. (N. s.) 212; Deerhurst v. St. Albans, 5 Madd. 232, overruled; Scarsdale v. Curzon, 1 John. & H. 40, where all the cases are cited and commented on.

die under twenty-one, should go over to the next person in remainder. And so where the absolute vesting of the chattels is coupled with the actual possession, and is therefore suspended until the death of the tenant for life, the chattels will vest in the child, who, after the death of the tenant for life, shall fulfil all the requisites of being tenant in tail in possession.2

§ 374. If the words of a will, taken in their ordinary sense, create a joint-tenancy, the court cannot order a settlement giving a tenancy in common, as it may do under marriage articles. But in some cases, where a testator is providing for his children, or where a grandparent in loco parentis is providing for his grandchildren, the court will order a settlement that will create a tenancy in common.3 And, generally, executory trusts under wills will be construed in the same manner as marriage articles entered into after marriage.4

$375. When a settlement is directed in an executory trust, but there is no direction as to the powers to be given under it, the court cannot order the insertion of any powers, except perhaps the power of leasing, which generally is an implied power to enable a party to enjoy the estate. But if the executory articles or the will contain a direction to insert the "usual powers," powers to lease for twenty-one years,' of sale

1 Potts v. Potts, 3 Jo. & Lat. 353; 1 H. L. Ca. 671; Trafford v. Trafford, 3 Atk. 347; Lincoln v. Newcastle, 3 Ves. 387.

2 Scarsdale v. Curzon, 1 John. & H. 40.

8 Synge v. Hales, 2 B. & B. 499; Marryat v. Townley, 1 Ves. 102. But there were other circumstances in these cases that indicated a tenancy in common. McPherson v. Snowden, 19 Md. 197.

Rochford v. Fitzmaurice, 1 Conn. & Laws. 158.

5 Wheete v. Hall, 17 Ves. 80; Brewster v. Angell, 1 J. & W. 628. Woolmore v. Burrows, 1 Sim. 518; Fearne's, P. W. 310; but see the late cases, Turner v. Sargent, 17 Beav. 515; Scott v. Steward, 27 Beav. 367; Charlton v. Rendall, 1 Hare, 296.

7 Hill v. Hill, 6 Sim. 144; Bedford v. Abercorn, 1 M. & Cr. 312.