#### Jarvis et al. *v*. Wyatt.

A devises lands to J. W. and his wife duping their lives, and to the longest liver of them, and also bequeathes to them certain slaves, &c. for their lives as aforesaid; and alter their decease he gives said property, real and personal, unto the heirs of their bodies lawfully begotten, to be equally divided among them, to them and their heirs forever; J. W. and wife are tenants for life only, and the heirs of their bodies take an estate in fee in the lands in remainder as purchasers' the remainder is contingent, and on the decease of the surviving donee for life, vests in such persons as are heirs of the bodies of J. W. and wife: a child, therefore, of J. W. and wife, who dies in the lifetime of the surviving donee, had no estate in the lands.

According to the intent of the testator, the personal property, on the decease of the surviving donee for life, goes over with the lands to the remainder men; ihe heirs of the body of J. W. and wife take an absolute property in the personalty on the decease of the surviving donee lor life, and the executor or assignee of a child of J. W. and wife, dying before the wife, has no interest in the personalty.

This bill was filed in 1823 for foreclosure of a mortgage. *Jhnbrose Knox,*by his will duly executed, devised the use and occupation of four fifths of his plantation, &c. to *John Wyatt*and *Parthenia*his wife, during their natural lives, anti to the longest liver of them; and he also bequeathed to them the use of certain slaves and their increase during their natural lives as aforesaid; and farther, during their lives as aforesaid, the use of all his stock and household furniture and plantation utensils of whatever kind now in their possession; and after their decease, he gives and bequeaths all and singular the property, both real and personal, above mentioned, (for their use during their lives. *\*unto the heirs of their bodies lawfully begotten, to be equally divided among them, to them and their heirs for ever. The testator died in the year 1796, Upon his death, *John Wyatt*entered upon the lands, and had possession of the personalty until 1802, when lie died; hisi widow surviving him, took possession of the *228real and personal estate, and continued it during her life. In 1804. *William Wyatt,*one of the children of *John*and ^ *Parthenia,*by deed mortgaged to the complainants all his-interest in the lands and slaves mentioned in the above devise and bequest. *William Wyatt*died in 1817, and was survived by his mother *Parthenia.*who departed this life in the year 1821, The bill was filed against the defendants, who were the children of *William*Wyatt, and were his heirs and distributees. On the death of *Parthenia,*they had taken possession of the land and slaves men-, tioned in the mortgage; they were the heirs of the body of *John*and *Parthenia,*and by their answer insisted that *William Wyatt*had nothing in the premises in 1804 when he executed the mortgage, and that on the death of *Par-thenia*the lands belonged to them, either under the will of *Ambrose Knox, or*by descent from *Parthenia,*and that the slaves were their property either under said will or as the distributees of *Parthenia.*The sole question in the case was, whether *William Wyatt*had, in 1804, any interest in the lands and slaves. The Court below' being of opinion that he had not, dismissed the bill of the complainants with costs, from which they appealed.

*Gaston,*for the appellants. —

The Court below decided that the mortgagor, at the date of his deed, had no estate or interest in the real or personal property which could pass. It will not be denied, that every thing that may be considered property1, remainders, reversions, possibilities and executory interests, are' transmissible, descendible, deviseablc. and assignable. It is so laid down in *Powell on Mortgages*25.: and in *Jones*v. *Roe*and *Perry,*(3 *Term*88.) it was decided, that' a possibility coupled w'ith an interest may be devised.

To support the decree below, it must be shown that (under our act of 1784, “ to do away entails,”) the whole estate passed to *Wyatt*and wife, and that on his death' the wife w'as seized of an estate in fee in possession. And *229even if this he correct, the decree below was wrong as to the personalty, for the husband, *as such,*was absolute owner of whatever property in *that*was given to his wife, and on his death *William,*his son, was entitled to a distributive share of the slaves. *[Com. Dig. Baron and Feme E.*3.) Whether *William*had an interest in the lands depends on the inquiry whether the words “heirs of their bodies begotten,” used in the devise, be a limitation of the estate given to the husband and wife, or whether they designate the heirs as purchasers of an estate in remainder after the life estate of the husband and wife; the ap-pellees must contend that, according to the rule in *Shelly’s*case, they are to be regarded as limiting a fee to the baron and feme.

This rule, according to *Hargrave,*is adopted to prevent the qualities and properties of a purchase annexing to a real descent, to render impossible the creation of an *amphibious*inheritance, that is, a freehold with a perpetual succession of heirs without the other incidents of an inheritance; an inheritance in the first ancestor, with a privilege of vesting in the heirs by purchase. *(Hargrave’s Law Tracts,*565. 572.)

This rule is not the medium to find out the intent; it supposes the intention to be previously discovered; that is, that there is a gift of a freehold to some person, and a superaddition of a succession of heirs to *that*person; making him the ancestor, terminus or stirps, by reference to whom the whole generation and posterity of heirs is to be ascertained. *(Hargrave’s Law Tracts,*574.)

The ordinai'y rules of interpretation are to be first resorted to, to arrive at the meaning of the testator. His meaning must be first adjusted without reference to the rule. *(Ibid.*575, 576.)

If it appears that the testator did not mean to use the words *“*heirs,” or “ heirs of the body, &c.” in their full and technical sense; but intended to designate *the person*who should be *“*heir,” or “ heirs of the body” of the *230donee for life *at his death,*and to make such person an ancestor, terminus or stock for a new succession, *then*there is no room for the application of the rule. *(Ibid.*5?u)

The sole inquiry is, whether the remainder to the heirs of the donee for life be designed to include *the whole of his inheritable blood,*the whole line of his heirs, or to designate an individual answering to the description of heir of the donee for life at his death, to whom an inheritance is to be given. *(Ibid.*576, 577.)

These, principles are sanctioned by the decision of the Chancellor in *Jones*and- *Morgan,*(1 *Bro. Ch. Ca.*206.) To apply them to the case under consideration. It is perfectly clear, the words “ heirs of the body,” in the will of *Knox,*were not meant to include the whole line of heirs, but individuals *only*of a certain character, existing at the death of the tenants for life. For to suppose that by « heirs of the body” is intended the whole line of succession, is to impute to the testator an unlawful and impracticable intention, to wit, to create an entail; and where words are susceptible to two meanings, one unlawful and the other lawful, the latter is to be presumed to be the sense in which the words were used.

Secondly. It cannot be supposed that the testator meant to entail the trifling farming utensils, carts, ploughs, &c. as well as the lands and slaves.

Thirdly. Testator anxiously expresses his intention not to give the *property*to *Wyatt*and wife, but the *use*only. They may take a life estate; it is clear no greater estate was given them.

Fourthly. The words “ after their decease. I give, &c.” is a guarded expression, and shows the testator’s intent to give them a life estate only; the moment of their decease was to be *that*of the commencement of a new estate. The words “ after the decease,” have been regarded in executory devises as: tying up the contingency to the moment of death, and changing the general meaning *231of dying without issue. *Penbury*y. *Ekons,*(2 *P. Wms. 563. i Wilkinson*v. *Smith,*(7 *Term 555.)*

Fifthly. The gift “ to the heirs of their bodies begotten, *to be equally divided*among them,” is conclusive to show that the « heirs of the body” were to take as purchasers: for if they were to take as heirs by descent this *equality of division*is absurd; the division must be governed by the statutes regulating descents. If there were *two*children, and both dead at the death of the tenants for life, the *one*leaving an only child, and the other leaving many children, the *equality*of division could not take place by the law of descents. Again, the words “ equally to be divided between them,” have a just application to *individuals*taking a new estate; but are absurd if applied to series of heirs taking in succession from and upon the death of each individual heir.

Sixthly. The gift is not only “to the heirs of the body,” but “ to them and their heirs forever.” These words of a limitation in fee engrafted on the devise to the heirs of the body, show beyond any reasonable controversy, that the “ heirs of the body” were individuals of a certain description, who, at the death of the donees for life, acquired a new estate in fee, and that they were termini stocks or ancestors from whom the succession of heirs in fee were to be derived.

The construction put upon the clause of the will by the appellants, gives to every word its proper meaning, makes a reasonable disposition of the property, and supposes the intent of the testator to have been a lawful one.

Excellent directions are given by *Butler (Note to Co. Bit. 376,*b.) as to the rule in *Shelly’s*case. First to ascertain from the incorrect and inartificial language of the will the meaning of the testator, and to express it with technical accuracy; and then to inquire whether the estates created by the terms of art be lawful or not. Let this be done in the clause of *Knox’s*will. It is an estate to *Wyatt*and wife far life: remainder in fee to those who. *232at their death, should be heirs of their bodies begotten, to them for life, remainder in- fee to their children. The ^ ^ same as in *Doe*v. *Ferren,*(3 *Term*484.) *Doe*v. *Provost,*(4 *John.*61.)

According to Justice *Blackstone,*when it appears that heirs are intended to take as purchasers they shall sp take; and this may appear either when words of explanation are added to the words heirs, &c. whereby it appears, issue sons, eldest son, &c. were meant; or where the testator hath superadded words of limitation to and upon the heirs to whom the estate is given. Argument in *Ferren*v. *Blake, (Ilarg. Laxo Tracts,*505, 506.)

It is easy to show, that in wills like this, and where the evidence of intent was not stronger, that these words “ heirs of the body,” have been interpreted children, and held so to be words of purchase. They were so interpreted in *Cheek*v. *Day,*reported in *Fitzg.*24. and *Ci-o. Eli%.*313. and in *Archer’s*case, 1 *Bep.*66. both cases being cited in Justice *Blackstone’s*argument. *(Margrave’s Laxo Tracts,*506.)

It is true, in these cases, “ heir” in the singular number was used and not “heirs.” In England, the eldest son takes as heir; and if there be no son, *all*the daughters take; and though there may be more than *one*daughter, yet they take but as *one*heir. With us all the children take as tenants in common, and are all heirs. Therefore, the words “heirs” in our law answers to the word “heir” in the singular number at the common law, and all the arguments and reasonings applicable to the superaddition of words of limitation on a gift to the “ heir” in the singular number in a devise of lands in England, hold with equal strength to a like superaddition in a gift to the “ heirs” in the plural number under our statutes of descent: for “ heir” would not apply with us; it must be heirs in the plural. See the opinion of Lord *Mansfield in Doe*v. *Laming,*2 *Burr.*1110.

*Lnddington*v. *Kime,*(1 *Salk.*234.) is a devise to “ issue *233ni ále,'5 and not tó freirá Of the Body, and in all other respects resembling the case undet consideration.

In *Leine*v. *Satis;*(2 *Ld: Éaym.*1561.) héirs of the Body arc explained by the context to mean children.

*Seii on demise of Long*v.- *Laming,*(2 *Burr*if Í0.) he-ferried to above, is a devise of goods and lands in almost the word's of *Knox's*will, and the woíds “ ftéirs of the body” arc construed to mean children.

*Goodtitle*v. *Herring,*(1 *East*264. *)'Sóé, lessee of Strong,*v. *Goft,*(11 *East*668.) show that heiris of the body may be words of purchase; arid in *Goodtitle*v. *Harris,*276. per *Le Blanc,*there is nó'ru'1'e of law to preycrit tlié Words “heirs of the body”’from creating a purchase if so’ intended.

It is, therefore, submitted for the appellants, that the whole estates did *not pass*to *Wyatt*and wife by the will of *Knox,*but'a life estate only, With a remainder to their *children*living at the death of the testator arid to after-born children as they should come in esse; and that *William Wyatt,*being one' of the children surviving at the death of the testator, toók a vested5 remainder in the property, real arid personal, devised to him by *Knooc,*and that liis interest passed to the complainant By the deed of morR gage'of 1-804, and therefore the' decree below must be reversed.

*Hogg,*for appellees.—

*William Wyati*had' no estáte iri the property mortgaged' to thé complainants. It ha's been argued for them, that' eytín if he did nottal£e; directly odder the will of *JhnWose KnOX,*yet aS distributee' of' liis father *John' Wyatt,*he had1 sciirie interest’in thé pe'rs'oriálty. The nidrtgagéi ánd the bill! for foreclosure co’iitem-plate no claim of *William*under his father *J'ohn aS*dis-tributee. It’is not mentioned in the case whether the" *fa-1*thrir1 died iritest até,-or! whether there'was any'administrad tori'or e’xfecutor, asid- neither of them is a party to the’prb'-sfenf' billy ritór'ié'ariy relief ashed ‘ against them. So that *234if the complainants claim from *John Wyatt,*they should file another bill. But *John Wyatt,*the father, had no interest in the property to transmit to his executor. The personal property, *on this supposition,*is bequeathed by *Ambrose Knox*to the husband and wife for their joint lives, and to the survivor absolutely. It is urged for the complainants, that a gift of the personalty to the husband and wife jointly, and their heirs, is a direct gift to the husband. It is conceded by the defendants, and farther, that every personal chattel of the wife in the possession of the husband, or which, by *possibility,*may come to her possession during the coverture, shall *be his,*and that he may release or assign it without taking possession, so as to defeat all survivorship in the wife. But it remains for the counsel of the complainants to show, that an interest in a chattel which was *not*in the *possession*of the husband during the coverture, and which could not vest in the wife until after she was *discovert,*shall belong to the husband’s executor. No authority has been or can be shown for such an extraordinary position. The authorities to the contrary will be found *collected*in *Boper on husband and wife,*238, 239. The counsel has totally misapplied the law whereby a present gift to the wife during cover-ture enures to the husband. The reason of the lawT is, that during tbe coverture the husband and wife are *one*person, and all power over their joint property is in *him;*but this reason must be left out of view, or misunderstood, when it is insisted that the husband is entitled to an interest in a chattel not given unless the wife survive, and not to vest until the *identity*of person has ceased, and the wife has become, by survivorship, a distinct person *in law*as in fact, and when the personal rights of the husband are dead with them.

The right of the complainants to reverse the decree must, therefore, depend on their claim under the will of *Ambrose Knox.*The devise and bequest of the property, Teal and personal, lands, slaves, stock and furniture, is *235to the husband and wife during their natural lives, arid to the longest liver of them: and after the decease of the survivor, unto the heirs of their bodies, to be equally divided among them, to them and their heirs forever. Now it would seem there could be but *two*constructions put on *this*testamentary disposition. Either that the husband and wife should take the whole interest and estate in the real and personal property- to which their representatives should succeed by law, or that they should take a life *estate*only, and the *heirs*of their body should take a contingent estate at. their death. The complainants rejecting both *these,*ask for a third interpretation, whereby the husband and wife should take an estate for life only, and a *vested*remainder should be in the *children*of the husband apd wife living at the making of the *will*or at the death of the testator, and that the children unborn should have vested remainders as they should come in esse.

To adopt this last construction would be to make, not to interpret the will. The testator hath said, “ alter their decease 1 do give all and singular the property, both real and personal, unto the heirs of their bodies.” Now waiving the consideration, how these persons are to take, whether by descent or purchase, it would seem impossible to suppose that any other than *heirs*are to take, unless the testator has given some other description to control the meaning of “ heirs of the body.” He has said it is to be divided among them, and to be to them and their lieirs forever. Do either of these phrases control the meaning? It has been said “divided” does; for that heirs are, by the *common law,*a series, and take consecutively and never distributively; and that, therefore, the division which is directed cannot be made among them, but must be among children who may take distributively. This reason would be unanswerable at *commo?i law;*but this will was not made at *common law,*but under statutes that enable all persons in equal degree, for instance all « children,” to take as heirs. S,o that heirs are not with us a *236series *only,*but also a series of classes; wherefore heirs now l*° 1K)Í take *Successively*only, but distributively, as tenants in common; and the word “divided?’ applies to children and to heirs with equal fitness and propriety. It is said, however, that words of limitation are super-added, and therefore heirs of the body mean children. Whatever weight these words of limitation will have upon an inquiry whether they take as purchasers or in succession, they cannot aid us in ascertaining who are to take, children or heirs of the body. There arc then no words designating children to take any interest in the real and personal estate. Whether heirs of the body *ex •pi termini*ever mean children, when personal property is given to a parent, and remainder in purchase to the heirs of the body, and whether the words shall have that meaning in this testamentary disposition, will be more prope r - ly discussed in the course of the argument.

It is denied on the part of the defendants, that the *thii-(Iren*as such of *John*and *Parthenia*took a remainder In fee in the lands, and an absolute property in the chattels, consequent on the interest for life given to the wife as survivor; and it is insisted, that supposing the words *“*heirs of their body” to be words of purchase, that at common law the person who claimed as purchaser must survive *both,*and be the *heir*of both *John*and *Parthenia.*

It is decided in *Frogmorton*v. *Wharrey,*(3 *Wilson*125. 144.) on a surrender of copyhold from A to B whom he intended to marry, for life, and to the heirs of their bodies, &c. that the heirs of the body take by purchase, and on- the wife dying *in the life of her- husband, her. son*could not take in remainder by purchase, as not being heir of both. See *Poe*v. *(piariley et al.*(1 *Term*630. *S. P.)*

*Jlrcher’s*case is an express authority, that in a limitation to ope fpr life, with a contingent remainder to the heir of his body, that the heir apparent has no interest, but that the heir proper of th.e tenant for life, that is, *one*v/ho survives liiip apd is entitled tq succeed to his inhw *237•rstance, is tlie person designated to take the estate by purchase. *Stith’s heirs*y. *Barnes,*(1 *Law Eep.*484.) is a decision of this Court to th.e same point.

These authorities are conclusive as to the re,al property, and these would appear to be *decisive*of the whole case, for the question is one of intention; who are. the persons to take in remainder? As to*the lands, upon authority the persons are certain, the *heirs*of the husband and wife. Doubtless it was the meaning of the testator, that *the*individuals who were to take the lands, should take the personalty also. He intended the lands and chattels to go over on the same event to the same persons. It is a rule of construction, that a gift of a chattel to one and the heirs of his body, which would be a fee tail of real estate, shall yest the chattel in the first taker absolutely; but supposing the intent manifested that the heirs of the body shall take as purchasers, there is no rule of law prohibiting them to take. As if the testator in so many words should devise real estate and a personal chattel to A for life, remainder in purchase to such person as at the death *o-'*A should be the heir at law of A, to such person and his heirs forever. If it be conceded that the devise did not make A tenant in tail of the real estate, but that his heir at law took as a purchaser, is there any reason why the personal chattel should not, on the decease ot A the tenant for life, go over to the heir at law of A with the real estate? Certainly the rule of construction does not apply, for the devise of the real property does not create an estate tail, and therefore the bequest of the chattel shall not create an absolute property in A. It follows, therefore, if the “ heirs of the body” of the husband qnd wife, upon the authorities cited, take the *real estate*Us purchasers on the decease of the wife who. survived, and that the children as such of the husband and wife *Mi Vipt take*a vested remainder in the real estate, that the same “ heirs of the body” shall, on the decease of the wife, take the personalty as purchasers, and that the chit. *238dren shall not take in the personalty a vested remainder/ *because*by the will of the testator the realty and person- ^ ^ alty, on the decease of the surviving donee for life, shall g0 to the heirs of the body of the husband and wife. The rule of construction will be found laid down in *Butler's Fearne*490. supported and illustrated by many cases, and in 2 *Roper on Legacies*393. And although theexcep? tions to the rule are many on the particular wording of bequests, where explanatory words have been added importing that the testator meant *issue*or children, in which it has been held that the issue or children should take vested interests as they came in esse; yet these cases' will not avail the complainants in their claim of the personalty, because the testator, by giving the personalty with the lands, has shown, he used the word “heirs” in a technical sense, to denote persons who would succeed to a joint fee of husband and wife, to take both the lands and chattels after the decease of the donees for life *by*purchase,• and there is no maxim in law to hinder these persons, the “heirs of the husband and wife,” to take according to the intent of the testator to the exclusion of the executor or *assignee*of a child dying in the life time of the mother. If the testator meant that the grand-children of *John*and *Parthenia Wyatt,*surviving them both and being the heirs of their real estate, should take the phattels mentioned in the will in exclusion of the executor or assignee of a child of *John*and *Parthenia,*who might die in the life time of one of his parents, the intent is a just and lawful one, and must prevail. He did so intend, for it is to their “ heirs” that he does give *both*the lands and chattels.

But the defendants deny that the heirs of the survivor of the husband and wife took a distinct estate *by purchase,*and affirm that the words “ heirs of their bodies lawfully begotten, to be equally divided among them, to them and their heirs forever,” are words of limitation, and import no more than that the heirs of the husband ami wife *239«■ere to succeed to the estate *after their decease,*as tenants in common.

The rule in *Shelly’s*case is fairly cited by the counsel of the complainant from *Hargrave’s Tract,*and the obser-rations of *Hargrave*show the meaning and application of the rule. The sense of the rule is expressed with great precision and accuracy by Chancellor *Thnrlow*in *Jones*y. *Morgan,*(2 *Bro. C. C.*206.) “ It is not,” says the Chancellor, “ a question whether the ancestor should take for life only, for the testator, in most of the cases, means the first taker, a life estate only; but the true inquiry is, whether the heir shall take in the *character*of *heir,*for if so he must take in the *quality*of heir; and again, if the es-, tato is to go to *every*person who can take as heir to the first taker, the word heirs must be in limitation, and alt heirs taking must be in by descent; as *Hargrave*expresses it, if the ancestor be the terminus, and the whole line of heirs (in tail or in fee) be to take after him, they must take by succession.

It is said that the whole line of heirs are not to succeed by the will of *Knox;*because words heirs of the body are not technical words by the laws of this state. It is insisted for the appellees, that the words “ heirs” are not less words of art since than they were before the abolition of -entails, although the words “of the body” do not, as formerly, control their meaning and confine the descent to *Lineal*heirs. The word *“*heirs” retains its technical sense, although the words “of the body” have lost their signi-ficancy. The case of *Jones*v, *Spaight,*(1 *Law Rep.*544.) .cited by the plaintiff's counsel to prove that “ heirs of the body” is not a technical phrase, decides only that a limitation of an estate to one and his heirs, and to another if the first taker should die without *leaving*heirs, shall not convert the fee into an estate tail at common law, but shall mean a dying without issue liying at the death of the first taker, and that it shall be good as an executory devise: it decides nothing as to the meaning of *240heirs-' of the' body. B ut' as to the effect' of the Word < *‘*leading,” the Judge, in delivering the opinion of the Court, however, expressly notices the idea advanced by one of the counsel in arguing- that case', that the words should create an estate tail' at common law for an instant which-by the statute would" be" converted into a fee, for the purpose of stating tliat the words heirs of the body” create a fee as heirs do" at- eommow law; and the case is therefore an authority that heirs of tlie" body are technical words, and mean neither more or less than heirs; and we suppose if there was no decision, that a limitation by a deed to A and the heirs of his body begotten, would give a lee simple to A, and' none but words of art can *operate*lb a- deed.

It is said' by the counsel tliat' one is a lawful and the other an unlawful intent in the testator. We profess not to understand *this;*the testator might lawfully give by "purchase or succession, and tlie only controversy is, ^híclo/the -two meanings shall be put on the test'amen-tary disposition. If by unlawful intent, it be meant that the testator' could not- make an entail by will, the answer is, that-if is tone that lie could not; but the heirs shall not talíe;by purchase, nor shall the devise altogether fail because the words- at common law would have created an entail;'but the same words shall; since 1784, by legal in-tendment, create an entail in fee' simple. It is said an usufruct- is giVeri to the tenants lor life to their use, &c. and for life" and no longer, and that this shows the testator meant the heirs should take as purchasers. It is settled on authority beyond dispute, that' a devise of the *úse*of realty or personalty and- of the thing itself; and again, that a devise to AS and his; heirs-, and to A for life and no longer, remainder to-his heirs; are identical in meaning, and: differ in words'only. « After their decease” is" relied on"t&'stíow-"a pufehasewas' meant, it is not very easy to discover wherefore,as the Words imply nothin'gtobre'thah that: the succession or purchase shall begin after *the*decease of the survivor. *241It is said that the words “ divided amongst them,” show the testator intended the heirs should take as tenants in common and not in succession; and English cases from *Vesey Jun.*and *Ambler*are cited to show that these words would make the heirs take as purchasers, *because*they could not *succeed*as tenants in common. But it has been already shown, that because primogeniture is abolished in this state, and lands descend to heirs in common by statute, that these cases *fail*in their application.

The great question *then*in this case is, whether the su-peraddition of words of inheritance upon the limitation to “ heirs of the body,” shows that the heirs of the body were persons designated who were to take estates in fee simple. Independent of all cases on the subject, as it has been shown that heirs of the body mean in *our*law heirs, it is strange, upon principle, that an estate to A and his heirs and to their heirs, should mean aught else but a succession; but let it be examined on authority, tate to A and his heirs, or heirs of his body *cie*in a will an estate in fee to A; and the those who claim against him to show that he fee. *For this purpose*the complainant’s com] cited *Doe*v. *Perrin,*(3 *Term*484.) where th remainder to the *children*of A and their hgirsWreyer, Children is not a word of limitation, but of pur

The next case cited is that of *Cheek*v. *Day.*In that the remainder is to the next *heir*male of A, in the singular number, and his heirs. Heir in the singular number is not a word of limitation, but a word of purchase. (See *Co. Lit. 7 b.)*

*Archer’s*case is cited from 1 *Rep. 55.*and is a devise to *Robert*for life, and to the next heir male of *Robert*and his heirs. Again, heir is in the singular number, and therefore not a word oflimitation but purchase.

2 *Burr.*1110. *Doe*v. *Laming,*is greatly relied on; that was a devise of gavelkind to A and the heirs of her body, female as *'•well*as *male,*and their heirs. By the *custom*of *242gavelkind females could not inherit; it was therefore held, that heirs was not used in a technical sense, and as the females could not take in succession, they must therefore take by *purchase*to give effect to the intent of the testator, It was in that case said by the Chief Justice, that the reasoning as to the heir in the singular number at common law, applied to the heirs in gavelkind in the plural number; but with great submission, this dictum does not seem well founded, as heir is properly a word of purchase by common law and by custom, whereas heirs is a word of limitation in both, although it means in one that the eldest son and all the daughters shall succeed at law, and all the sons shall succeed by custom in lineal descent. It would seem, therefore, that an estate to A and his heirs and to their heirs by the custom, as it included *the whole*inheritable blood of A, should create a succession and not a purchase in the heirs of A. The remark of the Chief Justice was not necessary to the decision, as the case turned on the word *female.*

1 *East*264. is also cited; it is a devise to A for life and successively to such son or sons. Son has been always a word of purchase. 11 *East*668. To daughter for life and her heirs of her body as tenants in common, and if such *issue*should die before twenty-one, &c. Heirs at common law could not take in common; and this with *issue,*which is a word in purchase, controls heirs of the body. In the present case, heirs do take in common, and the wrord issue is not used. The case from 11 *East*cannot be reconciled with *Doe*v. *Applen,*(4 *Term*82.)

*Jacobs*v. *Omeott,*(4 *Bro. C. C.*542.) This is a bequest of personalty to A for her life, and from and immediately after her decease to the heirs of her body, to be equally divided between them share and share alike, and in default of issue over. This is of personalty and a bequest over. It would not have created an estate in tail in real estate because of the tenancy in common, and there was a bequest over in default of issue; There is in *Jarvis*v. *243*Wyatt,*real estate, which renders the phrase of heirs technical, and what has been often repeated, the heirs, 1 by our act of assembly, take share and share alike by implication of law, and there is no mention of issue to limit the expression of heirs.

*Hodgeson*v. *Bussey,*(2 *Mk.*89.) is a bequest of *personalty*to heirs of the body, their executors, &r, It was impossible to understand the testator to úse heirs in a technical sense. 2 *Vessey*238. is cited to show, that in bequests of chattels, where heirs of the body by explanatory words are taken to mean *children*or *issue,*that Courts have laboured to make them take vested estates as purchasers when in esse, or when they come in esse, instead of waiting the death of the first taker to become properly heirs of the body; which is not denied where personalty is the sole subject of bequest, and when it is ascertained that heirs of the body, by explanatory words, *do*mean children, which is, however, the matter in controversy.

The counsel lor the complainants did not cite the cases of *Walker*v. *Snow*and *Lisle*v. *Gray,*on the argument as' to the effect of superadded words; but as we cannot reply, it may be well to notice in transitu that they are devises to the first, second, third son, &c. and *so*to the heirs of the body of the tenant for life and the heix-s of their bodies in succession, &c. and so referring to third son, and meaning fourth, fifth, sixth sons, &c. in tail, sons being a word of purchase. *Luddington*v. *Kime, Backhouse*v. *Wills, Law*v. *Davies,*are limitations to *issue*and their heirs, issue being a word of pui’chase. These cases are cited in Mr. *Fearne’s Essay,*and commented on.

All these cases are *affirmative,*and show1 that if the limitation be to a person known or unknown, by proper terms of purchase, as heir in the singular number, heir female in gavelkind, issue, sons, &c. with superadded words of limitation, that the estate *shall vest in the persona designata by purchase.*

*Negative*authorities of the highest character abound *244to show, that if *proper terms of limitation*be used, and words of inheritance superadded, that the estate shall *not*, , , , „ 7 , . *vest by purchase, but shall descend m succession.*

*Shelly’s*case, (1 *Co. 93.)*is an express authority; limitation to the heirs of the body in the *plural*and to the heirs of their bodies, an estate tail in the first taker.

*Minshull*v. *Minshull,*(1 *Aik.*412.) First *heirs*male of the body and the heirs male of the body; distinction taken between singular and plural, and between this and *Jlrcher’s*case.

*Wright*v. *Pearson.*To T. R. for life, remainder to the lieirs male of T. R. and their heirs; T. R. tenant in tail.

*Legate*v. *Sewell,*(1 *P. Wins.*187.) and *Goodnight*v. *Puller,*(2 Ld. *Raym.*1437. *S. P.)*These cases are collected by *Fearne;*and in page 183. of *Butler’s edition*it is remarked by the author of the essay, that the words heirs and heirs of the body in the plural, are sometimes abridged by words altering the descent as to A and the heirs of his body and the heirs *male*of such heirs, but never enlarged; and he *cautions*his reader not to confound these with the cases where words in tail have words in *fee*superadded, in which case the superadded words are surplusage. And *Butler,*in note to *Fearne*203. says, Mr. *Fearne’s*doctrine has been confirmed in *Webb*v. Puckey, (5. *Term*299.) to which we refer. *King*v. *Burchett, (Ambler*379.) is a very strong case for defendants. *Williams and wife*v. *Holly,*(2 *Law Rep.*286.) is entitled to great consideration as a decision of this Court; the devise was “ to my daughter and her husband during each of their lifetime and no longer, if dying without any lawful heirs begotten of their bodies; and if any lawful heir, to that and to its heirs forever; otherwise to my right heirs.” This wras before 1784, and the question was whether there was an estate tail in the husband and wife, or a life estate in husband and wife only, aud an estate tail in contingency in their heir. The Court held, because of the words of inheritance that followed the life estate of the *245husband and wile, that they took an estate tail, which was converted to a fee by the act of 1784.

. . , On the whole it is certain, on authority, that words ot inheritance superadded to heirs in the *plural*number, do not enable the heirs to take as *purchasers;*and there is nothing to distinguish the present case from that of *Shelly,*except the words “divided among them,” which make the heirs tenants in common; and as this is the course of descent according to the statutes, it follows that they cannot have'any effect in creating a purchase on the maxim of construction that *impressio earum quse facile insunt ni-hil operatur.*

*Gaston,*in reply. — A gift to the wife of a personal chattel, is to all intents and purposes a gift to the husband, and therefore supposing the estate in the personalty in the husband and wife, yet as the husband would then he the absolute owner, his son *William*Wijatt, as his distri-butee, would have an interest in the personal chattels, which passed by his deed to complainants. This is met by saying that here is a gift to husband and wife jointly, with remainder to the survivor. It is not so; a husband and wife cannot have a joint estate in a chattel, for a gift of a chattel to husband and wife vests solely in the husband.

2dly. “ The heirs of the body” in the devise and bequest do mean children. The case of *l)oe, lessee of Long*v. *Laming,*before cited, has not been answered, and is unanswerable *on*this point of the case. See the opinion of Lord *Mansfield,*2 *Burr.*1106. 1110. and per Justice *Wilmot,*1112. “ Heirs of the body” are not in all cases and under all circumstances words of limitation; the true principle that *mast*govern all cases of this kind is the *intention*of the testator, provided it be not inconsistent with the rules of law. If they do mean children the remainder *vests*in those liying and in others as they are born. 3 *Term Sep.*484. before cited, and *5 Mass. Sep. 537.*as to the real *246estate, and so as to the personal property, 4 *Bro. C. C.*542, 2 *Ves.*238.

These cases are distinguishable from that in 3 *Wilson*i25. These are cases in last wills where the intent of the testator shall prevail, if not inconsistent with the rules of law. The case at bar is also a will, and the case relied on by the appellee’s counsel from 3 *Wilson,*is on the construction of a conveyance *inter vivos,*where the words must be construed with technical strictness.

Sdly. As to the rule in *Shelly’s*case: the premises are wanting for the application of the rule; the words heirs of the body are qualified by new words of limitation consequent to and engrafted on them. *Thurlow’s*opinion is the same as *Hargrave’s.*The case of *Jones*v. *Morgan*turned on the want of the *superadded*words. *Hence Thur-low’s*significant remark to *Mansfield,*who cited *Lowe*v. *Davies*for plaintiffs, *“*I did not hear you state my words of limitation afterwards;” and a like remark of *Kenyon*to *Lens,*-Sergt. on citing the case of *Jones*v. *Morgan*in *Goodtitlc*v. *Herring,*(1 *East 9,70.)*“I argued the case: there were no superadded words of limitation to the heirs male in that case.” And again in delivering his opinion, **(*I well remember the case of *Jones*v. *Morgan:*there were no words of limitation added to the devise to the heirs male, which has always been holden to he of great weight in cases of this sort.” *Shelly’s*case (1 *Rep.*93.) was cited for the appellees: the words in that case are, to the heirs male and to their heirs male;” there is no inconsistency, the superaddition is mere surplusage. *Wright*v. *Pearson, (JLmbler*358.) cited in *Fearne’s Essay*126. is relied on for the appellees: *Fearne*states the Lord Keeper *Henley*as deciding it on the intention of the testator in that particular will, as holding it immaterial whether the word heir was in the singular or plural number. *Legate*y. *Sewell,*(IP. *Wins.*8 *7.)*is a limitation of heirs male on heirs male, and therefore is merely surplusage; and note the opinion of Justice *Tracy*rwho *247differs from a majority of the Court) that *Archer’s*case •was not decided on the word “ heir,” which being *nomen collectivum*would have created a fee as the word « heirs,” but that the heir in that case took by purchase because of the limitation over to her heirs. *Goodright*v. *Pullen,*(2 *Ld. Raym.*1437.) The subsequent words of limitation were doubtful and uncertain in their application; *Fortes-cue*thought they might refer to *Nicholas. Williams*y. Holley, (2 *Law Rep.*286.) The devise was before 1784, when entails were in force in this state. It is perfectly clear, that heir when first used means heir of the body, and when subsequently used must haye the same sense; so the whole is to the tenants for life, remainder to their lineal descendants, and so within the terms of *Shelly’s*case. The case of *Doe v. Laming*is an authority for every point made by the appellants: 1st, It decides that heirs of the body, &c. are to be understood as words of purchase if the testator so intends. 2dly, *Anne*having died before the testator, it decides that her children took a vested estate, and that their remainder was not contingent on the life estate of their mother, and that they need not answer the description of heirs of her body. Thus these words heirs of the body may mean children in devises of real estate; they ordinarily do in personal property. (4 *Bro. C. C.*542. 2 *Roper on Legacies*402.) The reason for interpreting words “ heirs of the body” to mean children (since 1784 when entails were done away) in the devises of lands, is as strong as in bequests of personalty in England.

In conclusion: One of *three*meanings must be attributed to the testator. First, a life estate to *Wyatt*and wife, remainder in tail to their issue. If this meaning be imputed, the words « equally to be divided” and the super-addition *“*to them and their heirs,” must be rejected; it must be supposed that the testator intended to create an estate not allowed by law, and to create it in personalty as well as in lands, The whole estate will be giyen ffe *248the husband and wife for whom the testator meant a usiu IVuct only, and nothing will pass to the heirs of the body for whom he meant an absolute ownership; and thus the whole scheme of the devise will be destroyéd as effectually as if you expunge every word from the will except the devise to *Wyatt*and wife.

Secondly, a life estate to *Wyatt*and wife, with a contingent remainder in fee to such persons as at the death of the survivor of husband and wife, might be the heirs of their bodies. This is to suppose “ heirs of the body” to be used in a strict technical sense, and to mean heirs in tail. The words *“*equally to be divided” must be rejected, as equality of division was established in fee simple esíátes only: *(Conf. Rep.*402.) personalty as well as realty will be entailed. It supposes that the testator did not mean his bounty for persons in existence and *known*to him, but for persons unknown to him, who were to come into existence, and whose whole merits with him were that they would stand in a certain legal relation to the tenants for life: the whole property would be in abeyance for the lives of *Wyatt*and wife.

Thirdly, the property was intended for *Wyatt*and wife for their lives only, remainder to their children absolutely: the children of *Wyatt*and wife were to have the whole estate and property, subject to the life estates of their father and mother. This is perfectly consistent with every expression, explains and reconciles every term, is consistent with the ordinary motives of human action, and is adapted to the nature of the property, produces no legal inconvenience, and is forbidden by no legal maxim.

Tayjgor, Chief Justice. —

That the testator intended *John Wyatt*and his wife to have no more than the enjoyment of the subject devised, during their lives and that of the longest liver, seems evident from the terms he uses in the will. He «lends the use and occupation” of the plantation to them «during their natural lives, and to the *249longest liver.” and be “ leaves them the chattel property during their lives as aforesaid;” thus showing his wish that they should be restrained from the power of dispos-sing of the land, so as to defeat the ulterior devise to their heirs. He then provides that *after*their decease, all the property thus given shall go to the heirs of their bodies lawfully begotten, to be equally divided among them and their heirs for ever.

It is agreed on the part of the defendants, that whatever the testator’s intent might haye been, yet the legal operation of the devise was to give an estate for life to *John Wyatt*and his wife, and an immediate remainder to their heirs, and that in such a case the rule in *Shelly’s*case applies, and yests in the ancestors an estate in fee simple.

I think it evident that the words “heirs of their bodies,” as used in this will, were designed to secure the estate in the first place to the descendants of *John*and *Farthenia,*and to make their issue the stock or root of the future succession, since if they had both died without leaving such issue, it would have contravened the intent of the testator to suffer the property to devolve on their collateral heirs. Upon the death of the devisees it would have vested in their lineal descendants as tenants in common, but the design of the will having taken effect, it would be an absolute estate in such children or grand-children, de-scendible to their heirs general.

According to the authorities, *“*heirs of the body” have been held to be words of purchase, when the testator hath superadded fresh limitations, and grafted other words of inheritance upon the heirs to whom he gives the estate; thereby showing that those heirs were meant by the testator to be the stock of a new descent. Where the heirs are thus made ancestors, it is evident that the terms “ heirs of the body” are merely descriptive of the persons intended to take, and import such sons and daughters of the tenant for life as shall also be heirs of his body. This exception to the rule in *Shelly’s*case is well ratal)-*250lished by the cases referred to, particularly *árcher’s*case, and *Lisle*v. *Gray,*and *Lowe*v. *Davies.*

Although it appears, plain to my apprehension that the jie¡rs take as purchasers, yet I think it unnecessary to say much more on this point, because it can make no difference in the decision of the cause; since in neither case could *William Wyatt*become entitled to any thing during the life-time of his parents.

There are not on the face of the will any sufficient indications that the testator meant to use the word “ heirs” in any other than its technical sense, that is this, those who should answer the description upon the death of the ancestor, until which event it must be unknown who would be his heirs. On the contrary, the will devises it to the heirs *after*the decease of the father and mother, and it is consequently a contingent remainder to those who should be heirs of the body on the death of the survivor., As the real and personal estate are disposed of by the same words, the construction must be the same in both, and no part of either vested in • *William Wyatt.*The husband and wde had a joint estate for life in both, and upon the death of either, the survivor became entitled for life, nor does it seem to me that it whs such an interest in the wife as the husband might have assigned or released, so as to destroy the right of survivorship. *(Shepherd’s Touch.*344. *Cro. Car.*222. 1 *Salk.*326. *Cro. Jac. 570.)*I am of opinion that *William Wyatt*having died before his surviving parent, took nothing in either real or personal property.

ÍTendekson, Judge. —

Were the stiperadded words *equally to be divided between them*stricken out, and the case decided according to the laws of England, there would be no doubt but that the wife who survived her husband would take an estate in special tail; that the estate created by the devise should stand thus, an estate to husband and wife during-the coverture With a contingent remainder in special tail to the survivor; for the heirs of *251the body being called to the succession in the character of heirs, must take in the quality of heirs, which could not be effected without according to the ancestor an estate descendable to the heirs of her body, and this, ro-gardless of the intent of the devisor, for the question is not what he intended to do, but what he has done; he has called to the succession the heirs of her body after giving to her a life estate; and they claiming in their character of heirs, the ancestor must have an estate of inheritance herself, for the heirs as heirs can take only that which was in the ancestor. But since abolition of estates tail, heirs of the body can no longer take in that character, and therefore cannot take in the quality of heirs, in their proper sense they can he no longer considered as words of limitation or expansion; they must therefore be understood as words of purchase, when we are ascertaining in what character they are called to the succession, and in deciding on the question whether the ancestor took an estate of inheritance, or a bare estate for life only. It is admitted, that if an estate be granted to A and to the heirs of his body, that A has a fee simple, not that it is *converted*into a fee simple by the act of 1784, it was not otherwise for a moment. The legislature declared by that act, that all such limitations thereafter made should create a fee simple descendable to the heirs collateral as well as lineal. We cannot, therefore, by construction, turn a life estate into an estate tail, and then give it up to the operation of the act of 1784, and thereby entirely defeat the intention of the devisor; for in such case the collateral heirs would succeed on failure of lineal heirs. Heirs general include the whole inheritable blood. By our law the latter description have lost their character; our law knows of no such body of heirs taking exclusively. But the words have not lost their meaning, as a *designatio persomrum;*they point to the same persons that they did before the act of 1784. When the person designated comes to claim, and not before, the question then arises, in what *252character does he claim? in order to ascertain in what l)e should take. If, therefore, an estate for life be given to A, remainder to the heirs of his body, and a col-iatCral heir, a brother, should come to claim, the question in what character he claims would never arise; the previous question would dispose of his claim, that he is not the person designated; he could therefore claim in neither character. As well might it be said that the two estates unite where the limitation is to the first son; first, for the word son is not a word of limitation but of purchase, because it does not include the whole inheritable blood of either species of estates known to the laws of England. So here, heirs of the body are not words of limitation but of purchase, when we are ascertaining this previous question, for the very same reasons; they do not include the whole inheritable blood on whom any estate of inheritance is descendable.

The rule, therefore, is, when by the words the same persons are called to the succession in the same manner as when called by the law, they claim in the character of heirs, and must take in the quality of heirs, and when not, they take as purchasers.

I am glad that we are relieved from deciding on the meaning of the words heirs of the body, or heirs general when applied to personal property. The question in the abstract does not appear to be settled in England. The opinion expressed by Lord *Mvanley*in *Ves. Jun.*I think is the better one, that they mean heirs *quoad*the property. It is true that many cases may be found where it is said that they mean children, issue, descendants, next of kin, and the like. But this meaning is given to them in reference to the particular case then under consideration, as where the contest is between the eldest son and heir at law and the other children. There it was said they mean children to include the whole, for they are heirs *quoad*the property; also where they were construed children to prevent the operation of the maxim *nano est hseres vivai-.**253*lis,*and the like. There is one case decided by Sir *Thomas Clarke,*Master of the Rolls, in which it was adiada:-ed that they meant children, in exclusion of grand-children; but I do not find that this case is follow ed; it is not so much as noticed by Lord *Mvanley,*and it appears to me to be a strange decision; but there was a reason given for it, but a very poor one. The estate was devised to the heirs of the body of A, and to the children of B. Sir *Thomas Clarke*took hold of the word children of B to exclude the grand-children of A. If necessity required it, Í think he ought to have reserved it. But in this case we are relieved from the consideration of the question, for the devise certainly intended the property to be kept together, and to go over together; and there is nothing improper to use a word proper to designate a person in regard to real property, to point out a purchaser of personal property, it is true that the devisor could not make it descend as real property; but because we cannot effectuate his intent in toto, it is no reason that we shall not do it in part; and by these words we are carried to persons to take by a certain designation, for the statute of 1-784 lias not destroyed the *meaning*of the words heirs of the body; they still designate those lineal descendants on whom an inheritance devolves so far as regards designating a purchaser. But it was argued, why not take its meaning with respect to personal property as regards both species, as they are to be kept together, and carry both estates to the heir *quoad*the personal estate? The answer is, the words heirs of the body are more appropriate to real estate; it is there technical, in the other it is more uncertain, and we are left in some measure to conjecture. Besides the real estate is the most worthy, and if both estates are to go together, its word of designation shall be preferred.

I therefore think that the complainant’s mortgage had nothing in the property when the mortgage was made, and that the other children, not claiming under him, will not *254be affected by his transfer. The bill must therefore be dismissed with costs.

Hart, Judge.

— 1 think the interest intended by the testator for the heirs of the body of *John*and *Farthenia Wyatt*is contingent, and does not vest in them until the death of their mother, who survived their father, and that then they take as purchasers.

I think the words *heirs of their bodies lawfully begotten,*are a description of the persons intended to take; because the words *equally to be divided between them, to them and their heirs for ever,*give them a fee simple, and if they have a fee simple, they do not take it because they are the heirs general of their father and mother, but because the testator by using those latter words has given it to them. If then they have a fee simple by those latter words, they take nothing by the words *heirs of their bodies,*&c. as used in a technical sense; the only office of those words must be, to ascertain, at Mrs. *Wyatt’s*death, the persons who shall be entitled to take; before the happening of that event, it cannot be done, for *neno est hseres viventis.*

We have been urged to consider the words heirs of the body, as issue or children, in order to let the property vest. But I cannot discover in the will any. clause that justifies a departure from the words used by the testator; it is not likely that he intended that the children of *John*and *Farthenia*should have any control oyer the property before they got it into their possession. I therefore think that the real and personal property in question did not vest in *William Wyatt*during his life, and of course he conveyed nothing by the deed which he executed to the complainants. But there is another view of this case taken by my brother Henderson, to which I altogether subscribe, which leads to the same result; and that is, that the words *heirs of the body*gives an estate in fee by *purchase,*although there is an estate for life to the pa.*255pent preceding it; because *heirs of the body*are not *heirs general,*and our law, since estates tail áre done away, recognize none as *heirs*except such as can inherit collaterally as well as lineally; and that, although where there is an estate for life to the parent remainder to his heirs, both estates unite in the parent un<Jer the operation of *Shelly's*case; yet there can be no such union where the remainder is to heirs of the body; our law knows of no such heirs, of course they are words of description, and those that take under them must take as purchasers. In 'England the case is otherwise, because heirs ot the body are recognized as heirs, they can inherit as such.

I also think, for the reasons given by Judge IIeNRer-soN, that the personal estate in this case is to be governed by the same rules of law as the real estate.