By Court, WILDE, J. Several objections have been raised to the validity of the bond now in suit, arising from the facts appearing by the record of the proceedings before the justice, and in the court of common pleas, upon which I will briefly state the opinion of the court. Most of the objections are founded on the alleged irregularity of the proceedings; the principal objection being that the principal defendant was a minor, and that a guardian ad litem ought to have been appointed to defend him against the plaintiff's accusation. But, admitting that such a guardian should have been appointed, we think it clear that the omission does not render the proceedings void, but only erroneous; and that they are valid, and can only be reversed and set aside on a writ of certiorari. And the same principle applies to the other objections to the proceedings. The objection, therefore, that the bond was given under duress can not be maintained. This case differs from that of Fisher v. Shattuck, 17 Pick. 252; for in that case the justice had no jurisdiction, and the whole proceedings were coram non judice.

The remaining objection to the action is, that the defendants are not liable, because the principal in the bond was a minor. To this objection it has been answered, that the statute requires that the party accused, under the bastardy act, should give bond, and there is no exception of minors, as there is in the revised statutes, c. 135, sec. 20, as to witnesses, being married women or minors; and it has been argued, that it must, from the nature of the subject, have been intended that minors should not be excepted. And the rule laid down by Lord Wilmot, as to the construction of similar statutes, is applicable. He says: "Many cases have been put, where the law implies an exception, and takes infants out of the general words, by what is called a virtual exception. I have looked through all the cases; and the only inference to be drawn from them is, that where the words of a law, in their common and ordinary signification, are sufficient to include infants, the virtual exception must be drawn from the intention of the legislature, manifested by other parts of the law, from the general purpose and design of the law; and from the subject-matter of it:" Earl of Buckinghamshire v. Drury, Wilm. 194. By this rule of construction, we are of opinion that the revised statute, c. 49, sec. 1, must be so construed as to include infants. The justice is authorized to require the party accused "to give bond, with sufficient sureties, to appear and answer to the said complaint, at the next court of common pleas,

and to abide the order of court thereon, and may order him to be committed, until such bond shall be given."

From this language of the statute, and the nature of the subject, there seems no reason to doubt that it was intended to include minors. This is not a case entitling the minor to any privilege. He is liable for costs; he may contract marriage; and there appears to be no objection to his giving bond as the statute requires.

Judgment for the plaintiff.

In Commonwealth v. Henry, 7 Cush. 713, it was held, citing the principal case, that where a justice of the peace issued his warrant irregularly, and tried and convicted the accused, the defendant could not on an appeal object to the irregularity in the form of the warrant, it not appearing from the records or papers, that he took any such objection before the justice. The rule of law laid down by Chief Justice Wilmot in Buckinghamshire v. Drury, Wilm. 194, and approved and acted on by the court in the principal case, for determining whether infants shall be excepted by implication out of a statute expressed in general words, viz., that "where the words of a law, in their common and ordinary signification, are sufficient to include infants, the vir tual exception must be drawn from the intention of the legislature, manifested by other parts of the law; from the general purpose and design of the law; and from the subject-matter of it," is cited and approved in Bradford v. French, 110 Mass. 367.

CANEDY V. HASKINS.

[13 METCALF, 389.]

CONSTRUCTION OF WILL WHICH READ: "I give, grant, and convey unto my brother W. C.'s son, N. C., during his natural life, and at his decease to his eldest male heir, and after his decease and to said male heirs and assigns forever," etc. At the time of the testator's decease said N. C. had no children, but subsequently had several, his third son only surviving him: Held, that said N. C. took a life estate only, and that at his decease his surviving son took an estate in tail male.

WRIT of entry. The facts were, that Barnabas Canedy, being seised of the demanded premises and other lands and tenements, after giving his wife the use of them during her natural life, devised them as stated in the opinion. The demandant claims the premises as eldest male heir of Noble Canedy, and it was agreed that he was the only male heir surviving said Noble Canedy, the devisee mentioned in the will. Noble Canedy went into possession of the premises on the death of the testator's wife and held them until he conveyed them to his second son, Barnabas, and his son-in-law Reed, both grantees then being of full age. They soon after conveyed the premises to the tenant. The devisee

Noble had seven children, all born after the decease of the testator. Two sons, the eldest born and the youngest, died in infancy. The second son, Barnabas, died after making the above conveyance to the tenant, and before said Noble's death. Upon these facts it was agreed that the tenant should be defaulted, or demandant nonsuit, as in the opinion of the court should be the law.

Eddy and Greenleaf, for the demandant.

Baylies, for the tenant.

By Court, WILDE, J. In this writ of entry, both parties claim title under the will of Barnabas Canedy; so that the case depends on the construction of his will, by which he devised the demanded premises and other lands and tenements, in the manner following: "I give, grant, and convey unto my brother William Canedy's son, Noble Canedy, during his natural life (that is, after the decease of my said wife Elizabeth Canedy), and at his decease to his eldest male heir, and after his decease and to said male heirs and assigns forever, all and singular my homestead farm in Taunton," and also the demanded premises. The cause has been ably argued, and numerous cases have been cited and discussed by counsel, as to the rules of construction in like cases, some of which are apparently conflicting, but which, we think, may be reconciled, so far at least as they bear on the present case by the application of the general rule that, in the construction of wills, the intention of the testator is to govern, if it may be effectuated by the rules of law.

On the part of the demandant, it has been argued, that by the devise Noble Canedy took an estate for life, and that a contingent remainder in fee was given to his eldest male heir, which vested in the demandant, on the decease of the said Noble, his father; he being then his only male heir. The leading authority in support of this construction is Archer's Case, 1 Co. 66 b. That was a devise to Robert Archer for life, and to his next heir male, and the heirs male of the body of such heir male, and it was held that Robert Archer took only an estate for life. Numerous subsequent cases, in support of the same construction, are cited and reviewed by Story, J., in Sisson v. Seabury, 1 Sumn. 235.

On the other hand, it was contended by the tenant's counsel, that Noble Canedy, the devisee named in the will, took an estate ir tail male, according to the rule in Shelley's Case, 1 Co. 93 b, that where an estate of freehold is limited to a devisee or grantee, and

by the devise or conveyance an estate is limited, either mediately or immediately, to his heirs, in fee simple or in tail, "his heirs" are words of limitation of the estate, and not words of purchase. Numerous cases and authorities have been cited in support of the application of this rule, as the counsel for the tenant contends, to the present case. One of the strongest cases in support of the argument for the tenant is that of Robinson v. Robinson, 1 Burr. 38. In that case, the devise was as follows: "I bequeath all my real estate to Lancelot Hicks, for and during his natural life, and no longer; and after his decease, to such son as he shall have: and for default of such issue, then I give the same to my cousin," etc. It was held, that although the devise to Hicks was of an estate for life, and no longer, yet by necessary implication, to effectuate the manifest general intent of the testator, the will was to be so construed as to give to Hicks an estate in tail male; because the father could not take an estate for life, and the sons successively an estate in tail; as an estate to the heirs male of the body of L. Hicks is implied, though an estate for life only is given to him. Several cases were decided by Lord Kenyon, on the same ground, namely, on the rule of construction, that where a particular intent is indicated, which is inconsistent with the general intent of the will, the former must yield to the latter: See 2 Jarman on Wills, 318, 319. I do not, however, intend to review the numerous cases cited, which would be a useless labor. For the present case must depend on the intention of the testator, if not inconsistent with the rules of law. And that intention must be ascertained by the language of the will; taking into consideration all its provisions bearing on the question. Little assistance can be obtained by consulting a multitude of cases.

Now we have no doubt as to the intention of the testator, in the present case. In the first place, it is clear that he intended to give Noble Canedy, the devisee named in the will, a life estate, for this intention is expressly declared. In the next place, he gives the estate, at his decease, to his "eldest male heir;" and the question is, whether the testator intended, by these words, to enlarge the estate given to Noble Canedy, and thereby to create an estate tail in him, or were the words intended to indicate the person who was to take the estate at the decease of the first devisee? And we think the latter intention is manifestly indicated. By "the eldest heir," we think the eldest son of the devisee named in the will, who should be living at the decease of the devisee, was intended; for we can not

suppose that any collateral relative of the devisee was intended. The devisee had, at the time of the devise, no children; but the remainder was not to vest until the death of the devisee of the life estate; and the devise over may reasonably be construed as a prospective provision for his eldest son, who should be living at his decease. In this respect, the devise materially differs from that in Wild's Case, 6 Co. 16 b. In that case it was decided, that if A. devises his lands to B. and to his children or issue, and he hath no issue at the time of the devise, the same is an estate tail; for the gift is immediate, and the children or issue could not take, not being in rerum natura; and they could not take by way of remainder, for that was not the intent of the testator-the gift being immediate. In the present devise, the gift to the eldest heir of the first devisee was to take effect, and we think did take effect, by way of remainder, which was contingent and did not vest until the death of the devisee, Noble Canedy; and we are of opinion that the demandant took an estate in tail male. It is true that the intention of the testator is not accurately expressed; but we think there can be no reasonable doubt of the meaning. It is clear that the eldest son or heir of Noble Canedy was to take a remainder. Then follow the words, "and, after his decease, to said male heirs and assigns forever." We think that by these words the intention is indicated, that after the decease of the eldest son of Noble Canedy, the estate given to him was to descend to his eldest son, and so from eldest son to eldest son, in perpetual succession. The words "said male heirs" were intended to designate the eldest male heirs who should take in succession after the death of the first remainder-man. These words, therefore, must be construed as words of limitation of the estate in remainder, and not as enlarging the life estate expressly given to Noble Canedy; and thus all the parts of the will will be consistent. The rule in Shelley's Case, accordingly, does not apply to the estate of Noble Canedy, the devisee first named in the will, and he only took an estate for life.

The rule of construction, on this point, is correctly stated by Jarman, and is fully supported by the authorities: "Though a devise to the next heir male, simply following a devise to the ancestor for life, does not confer on the heir an estate by purchase (the words being construed as words of limitation), yet if the testator has ingrafted words of limitation on the devise to the next heir male, he is considered as indicating an intention to use the term 'heir' as a mere descriptio persona; the super