This case has been very ably argued by the counsel for the defendant, and if the premises assumed by him were sound, it would be difficult to escape from his conclusion. But there is a fallacy in his ingenious argument, which consists in the assumption, as the basis of the reasoning, that the devise to the plaintiff of the premises in controversy is in legal effect a gift in express terms to him for life and on his death to the heirs of his body, or, what is equivalent, to his lawful issue. But such is not the true interpretation of the devise, construing, as we are bound to do, the two clauses, relating to the premises, together, as being made uno flatu and operating to vest an estate in the devisee at one and the same time. Thus construed, the devise is of an estate tail, which vests in the first taker something more than an estate for life. In other words, the language of the will relating to the premises in dispute creates an estate tail in the plaintiff by implication, and has the same force and effect ex vi termini as if it had been in express terms to the devisee and the heirs of his body lawfully begotten. This point is fully settled by a series of adjudications in this commonwealth, cited by the counsel for the plaintiff, especially by Parker v. Parker, 5 Met. 134, and Wheatland v. Hodge, 10 Met. 502. It follows that this is not a case to which the statute abolishing the rule in Shelley's case, Rev. Sts. c. 59, § 9, ap plies. This statute was not intended to prohibit or restrain the creation of estates tail when the devise should be made by apt and sufficient words according to the well established rules ot *52law. It was only intended to be applicable to those cases where the devise was in express terms or in substance and effect to the first taker for life, and was designed to give effect to the particular intent creating a life estate, to the exclusion of the general intent to create a fee tail, which the rule of the common law implied from a gift so expressed. But in this case no particular intent to give to the plaintiff a life interest is expressed or implied. On the contrary, as has been already stated, the implication is that an estate tail was created.
Demmrer overruled.