wiU


t>F  TUB  fiFF£CT  OF  EXCESSIVE  EXECUTIONS.       44:9

'\vi\\  appointed  part  of  the  estate  to  one  of  his  sons,
llcury^  for  life^  remainder  to  the  children  of  Henrj^  as
lie  should  appoint.  It  was  insisted  that  Henry  should
take  an  estate  tail ;  and  Lord  Rosslyu,  iif  the  course  of
the  argument^  asked  why  he  could  not  put  that  con-^
struction  on  the  devise ;  to  which  he  was  answered^  that
it  was  intended  that  the  children  (of  Henry)  should  take
absolutel3^5  not  that  it  should  go  as  an  estate  tail  would
carry  it  It  was  said,  that  the  principle  of  all  the  cases
for  an  implied  estate  tail  is,  that  there  was  a  clear  in-
dicium of  an  intention  that  all  the  issue  should  take  in
the  course  in  which  an  estate  tail  would  go,  but  that
DO  inference  could  be  drawn  from  those  cases  to  this,
where  there  was  no  such  indication.  Lord  Rosslyn,  in
delivering  j  udgmeut^  ado[)ted  these  arguments :  he  said,
that  the  case  of  Pitt  v,  Jackson  would  not  enable  him  to
do  the  sai^e  thing  here^  for  here  it  was  a  power  to
Henry  to  appoint  to  children  in  such  shares  as  he  thought
fit.  No  estate  tail  was  given,  nor  was  any  intention  of
that  sort  expressed ;  but  the  children  would  take  either
by  appointment,  or  for  want  of  it^  distributively  per  ca-
fitcu  Therefore  that  did  not  apply  :  and  he  was  under
the  necessity  of  sayings  the  interests  to  the  children  of
Henry  could  not  in  any  respect  taKe  effect.
