Things remained in this situation until the time of Taltarum's case, and the statute of fines; after which there could be no doubt but that a donee in tail by suffering a common recovery or by levying a fine, might have defeated any instrument. The effect of the statute de donis being thus, in a great measure, destroyed, and the powers of men to make firm settlements defeated, the ingenuity of the lawyers of those days was employed in attempts to create perpetuities to a certain effect. To obtain this end two methods were devised. The first was the introduction of remote contingencies; the second was the giving the first taker an estate for life only; but both of these were soon defeated. The first in Chudleigh's, [1 Rep. 137. Fearne, 158.], the second in Skelley's case, [1 Rep. 93. Fearne, 141.] The first taker, to whom an estate for life was given, was held to take the inheritance for the benefit of the lord, who would have lost the fruits of the feudal tenures, if the heirs of the first taker had taken by purchase. But as this reason depended entirely upon feudal notions, it cannot be applied to limitations of bank stock, nor to any other thing which cannot be the subject of feudal tenures. Afterwards an attempt was made to establish limitations of long terms of years. There is no case from which it appears exactly at what time this attempt was made, but Lord Nottingham supposes it to have been about the 38th of Queen Elizabeth. These limitations were defeated by the determination in the case of Childs v. Bayley. Cro. Fac. 460. [et 1 Roll. Abr. 611. p. 5. Palm. 48. 333.] After this case, came that of the Duke of Norfolk, [3 Chan. Ca. 1. Pollex. 223.] which is in contradiction to Childs v. Bayley, [Cro. Jac. 459. 1 Roll. Abr. 611. p. 5. Palm. 48. 333.] Before the Duke of · Norfolk's case, it seems not to have been a settled and incontrovertible principle that there could be a further limitation of a term of years after an estate for life. It was established by by the decree of Lord Nottingham in that case. Attempts were likewise made to limit personal chattels after a gift of them for life, &c. and a distinction taken between the gift of a thing and the temporary use it, contrary to the idea of Lord Coke, that the gift of a personal thing passes it forever.

For the sake of family settlements the court strongly contended with technical rules in order to establish perpetuities to a certain degree. In the cases of personal estate they permitted a new species of technical reasoning to prevail, by allowing the reasoning relating to freeholds to be applied in some measure to chattels; and it became a rule that whenever a chattel interest vested in a person, in consequence of a limitation, the words of which would have given him an estate-tail, if applied to an estate of freehold, that person should take the ultimate property of the chattel.

Lord Macclesfield, in the determination of the cases that came before him, adopted a sensible and manly kind of reasoning. He did not hesitate to establish limitations of terms for years, that did not import a perpetuity, and established it as a rule, that where the words of a devise, if applied to a freehold, would create an estate-tail by implication only, they should not operate so as to pass the ultimate property of a chattel interest, and make all limitations over, void. He took a distinction in the case of Target v. Gaunt, 1 P. Wms. 366. between the words of a devise when they are applied to a freehold, and when to chattels; and, that being the case of a leasehold, he construed the words dying without issue to mean, according to the vulgar acceptation of them, dying without issue at his death, and not, dying without issue indefinitely. The same distinction was taken in the cases of Nichos v. Hooper, 2 Vern. 686. Forth v. Chapman, 1. P. Wms. 663. In the case of Atkinson v. Hutchinson, 3 P. Wms. 258. Lord Talbot took the distinction and established the opinion of Lord Macclesfield. In Forth v. Chapman, the words were if he die without leaving issue; which gave rise to a notion that unless the words, without leaving issue, or, without issue then living, occurred, all limitations over should be void. This notion does seem to have been adopted in the determination of the case of Green v. Rod, Fitzg. 68. and it has been said that it was adopted in Beauclerk v. Dormer, 2 Atk. 308. likewise. But this

H

last was a very partial case, and Lord Hardwicke's decree seems to have been founded upon the singular circumstances attending it; for it is observable that there was a general, absolute, unqualified interest given to Miss Dormer, and after that, a limitation to Lord George Beauclerk, but such a limitation would not have been suffered even in the case of a freehold. In the case of Keily v. Fowler, [House of Lords, January, 1768] it appears that the rule of law, which creates an estate tail in the first taker, was improperly transferred from real to personal estates, and that, in the cases of chattels, limitations over after dying without issue, without leaving issue, or for want of issue, may be good. In that case the doctrine, that I have been awkwardly endeavouring to explain, is fully and clearly laid down and adopted. The words of the devise in the case before the court are to Leonora Ann Pynsent during her life and after her decease to the heirs male of her body lawfully begotten forever, and for want of such issue to Mr. Daw. That the words, heirs of the body or right heirs, may be words of purchase appears from Lisle v. Gray, Sir Th. Jo. [2 Lev. 223. 1 Raym. 278. Fearne 104.] Long v. Laming, and Perryn v. Blake, which were cases of freeholds and at law; and from Wood v. Saunders, Pollex. 35. and many other cases. And I hope from what has been said, it is clear, that in the' cases of chattels there is no rule of law that will prevent their being words of purchase, in every instance where a testator intends them as such. This is the case of a chattel. The testator's intention to make heirs male of the body, words of purchase is manifest, and therefore, I trust they will be construed to be words of purchase.

The issue then of Miss Pynsent being to take by purchase, there can be no doubt but the executory devise to the appellant upon the contingency of Miss Pynsent leaving no issue, (which contingency has happened) is good: for though the case of Burgis v. Burgis, [1 Mod. 115.] and Sir William Backhurst's case in Pollexfen's Reports are authorities against it, they do not at this time affect the case. When those causes were

determined, the law relating to limitations of terms for years was not settled. Lord Nottingham, in the Duke of Norfolk's case, [3 Cas. in Chanc. 30.] went a great way towards settling it. From his time it grew more and more certain, till the time of Sir Joseph Jekyl, who, in the case of Standley v. Leigh, 2 P. Wms. 686. has fixed it beyond a doubt, that executory limitations of this nature are good.

Upon the whole I contend that the intention of the testator most clearly was, to give Miss Pynsent the bank stock, &c. for her life, in the event of having issue to give them ultimately to the issue; but in the event of her having no issue, to give them ultimately to the appellant: that, this is an intention that might well have been executed: that, as this is the case of a chattel, in which there is no rule of law to contradict it, the most sacred regard is to be paid to it: that even in the case of freeholds, as in Robinson v. Robinson and Perryn v. Blake the strongest legal operation of words has been overruled to make way for the intention of a testator; and that, à fortiori, in the present case the intention of the testator shall prevail, without regard to the terms in which he has expressed himself, however fatal they might have been in the case of a devise of a freehold.

N. B. Lord Hardwicke, in the case of Villers v. Villers, said that the different circumstances in Peacock v. Spooner, 2 Vez. 660. and Webb v. Webb, 1. P. Wms. 132. were the occasion of the different determinations in those two cases; that in both of them the estate moved originally from the husband, and that, if in the first case, the wife had been held to take the whole of the chattel, she would have had it in her power to have deprived the children of him from whom it moved of it; that, in fact, an attempt was made to do it, and that the Chancellor determined the matter as he did to prevent such a piece of injustice; but that no such ill consequences could flow from a determination in Webb v. Webb, that the husband should take the ultimate property, because the interest having moved from him, there could be no impropriety in leaving it in his power

to dispose of it ad arbitrium, and therefore it was determined that the whole interest vested in him.

The Court, after taking time to consider, delivered their opinions, in which they adopted the principles laid down by Wedderburne in every part of his argument, and accordingly gave

JUDGMENT for the APPELLant.

Upon an appeal to the House of Lords, this judgment was reversed without a division on the question. 7 Bro. Par. Ca.

453.

At the time this case was argued in Chancery the judgment of the K. B. in Perryn v. Blake was not reversed. But that reversal has made the case of Perryn v. Blake an authority against Wedderburne's argument, which was then a strong one in his favour.

[The case of Perryn v. Blake, to which allusion is made in the above report, should have preceded it; but owing to an accident it is delayed until the ensuing number. For these cases the Editor is indebted to the kindness of WILLIAM COOKE, Esq. of this city, who, at his request, permitted copies to be taken from a note book, kept by him while a student in London.]