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chased, there should have been cross remainders directed, in favour of the children of each of Samuel Papillon's sisters, in the same manner as were directed between the daughters of John Papillon, prior to the limitation to the right heirs of the testator.

In answer to the first objection, it was to be observed, that though a testator's intention is generally to govern, yet in the case of a devise of a legal estate, no intention is to be presumed in opposition to the legal operation of technical words, and the settled rules of construction. It is a known and certain rule, that where an estate is devised to one for life, with a limitation mediate or immediate to the heirs of his body, the devisee takes an estate tail; and the interposition of an intermediate remainder can have no other effect, than to prevent the estate for life from merging in the estate tail. But as to the money which was devised for the purchase of an estate, the court might well put a different construction on the same words of devise; and as that estate, when purchased, was to be settled under the direction of the court, they might order it to be conveyed in such manner, and with such limitations, as would best answer the design of the testator. And therefore it was conceived, that in order to support that part of the decree of 1731, which directed the deeds [463] and writings to be delivered to John Papillon, it was unnecessary to have recourse to the marriage articles of Samuel Papillon, which were introduced into the cause by the supplemental bill; though John being thereby entitled in equity to an estate tail in the lands devised, was in all events entitled to have the deeds and writings of that estate delivered to him. As to the second objection, it was founded on a supposition, that the deeds and writings of the estate at Great Bentley were decreed to John Papillon, upon the sole ground of his being tenant in tail of that estate under the marriage articles of his father; but the not putting John to such an election, was a manifest proof that that part of the decree was founded as well upon the legal effect and operation of the devise of that estate by the will of Samuel Papillon, as upon the right which accrued to him under the articles. No such objection was made by any of the answers to the supplemental bill of John Papillon, or insisted on at the hearing of the cause; and the inconvenience which must arise from insisting upon it now, after the death of John Papillon, and the acquiescence of all parties for so long a period of time, was an additional argument in favour of the respondent. And as to the third objection, it was said, that the will of Samuel Papillon having directed the estate, when purchased, to be conveyed to the heirs of the body of John Papillon, and the decrees having carried that direction into a strict settlement, by limiting an estate tail to the daughters as tenants in common; it was necessary, in order to comply with the directions of the will, to limit cross remainders between the daughters; as a part of the estate might otherwise have gone over to those next in remainder, while there were heirs of the body of John Papillon still in being; which would have been in direct contradiction both to the words and meaning of the will. But the testator having by his will directed the estate to be limited, in default of heirs of the body of his son, to the children of his sisters and the heirs of their bodies, who were thereby to take separately as tenants in common, with an immediate remainder over in default of issue of such children, no such necessity of construction in favour of cross remainders prevailed as in the former instance, but the natural import of the words must be pursued; which shewed his intention to have been, that in default of issue of any of such children, the estate limited to that child should immediately go to such person as might then be entitled thereto, by virtue of the immediate remainder to his own right heirs.

On the day appointed for hearing this appeal, the counsel were directed to argue the preliminary question, Whether the appeal was brought within the time limited by the standing order of the House, for bringing appeals? And after the counsel had been fully heard, it was declared, that the appeal from the decrees of the 15th of July 1728, and the 5th of February 1731, ought not to have been received: it was therefore ordered, that the appeal should be dismissed, so far as it complained of those de-[464]-crees: and it was ordered and adjudged, that the decree of the 22d of June 1767, should be affirmed. (MS. Jour. sub anno 1770. p. 68.)