#### DEN ON DEMISE OF SUSAN C. MOORE v. DAVID PARKER.

A. devised to his son a tract of land “ for and during his natural life,” and after his death “to the heirs of his hody, to be equally divided between them, to them and their heirs forever,” and if he dies without heirs of his body, living at the time of his death, then to his daughter. *Held,*that under this devise, thé son took only a life estate.

The-sou having only a life estate, when he sells and conveys the land with • warranty in fee, this warranty does not bar nor rebut the purchaser.

The presumption of death, arising from the absence of a party for more than seven years, is not removed by proof of a rumor, during that time, of his being alive, which rumor, upon investigation, turns out to he without foundation.

The case of *Jones*v *Ward,,5*Ire. Eq. 400, cited and approved.

Appeal' from the Superior Court of Law of Hertford County} at the Spring Term 1851, his Honor Judge Dick; presiding..

This was an action of' ejectment;/ The case was as follows : Tile-land formerly belonged to one John S. Moore, who died in-the year 1827, having first made and published his last will in form to pass real estate, tvhich was duly proved and recorded : And in the said will the said land was devised as follows: “ I give, devise, and bequeath to my son, Adolphus Edward Moore, lor and during his natural life, the three following tráete of land, to wit: (Here the testator describes the lands.) I also give and bequeath to my son Adolphus Edward, aforesaid, for and during his natural life, one feather bed and furniture, my large brandy still, and two mahogany tables. The above property, both real and personal, I give to my son Adolphus, aforesaid, for and during his natural life; and after his death, I give the-above property, both real and personal, to the heirs of his-body, lawfully begotten, to be equally divided between *124them, to them and their heirs forever. But in case my son. Adolphus Edward should die without such heirs of his body lawfully begotten, living at the time of his death, then and in that case the lands given to him, as above described, to my daughter Sally Matilda aforesaid; and should she die'without heirs of her body begotten, living at the time of her death, then I give the above described land to all my children, living at *the time*ofher death, to be equally divided between them, to them and their heirs foreverwhich is all in the will that relates to the land in controversy.

Adolphus E. Moore, to whom the land was devised as aforesaid, took possession of the land after the father’s death, and continued that possession until the year 1837, when, by his deed of bargain and sale, with warranty, he conveyed the same to one Alfred W. Moore, and thence by *successive*deeds the title was transmitted to the defendant before the date of the demise in the plaintiff’s declaration.

It was further in proof, that the said Adolphus E. Moore left the county of Hertford in the month of December 1841; and the witnesses for the plaintiff, to wit: the brother of the said Moore, the husband of his sister, and the brother of his wife, and with whom she had resided ever since the said Moore left this State, stated that they had never heard from him since the year 1842 ,• and the brother stated, that in the year 1842, and prior the to the month of November, he had received two letters from the said Adolphus, dated in Winyaw District, South Carolina, and that he subsequently received another letter from Charleston, South Carolina, dated in the month of November, 1842, but that he had never heard from him since, though he had written to both places to have enquiries *made;*and he and the husband of the sister of said Moore stated, that they had requested persons travelling South to inquire for him, but had never heard from him.

The defendant then proved, that one John D. Jenkins, since deceased, while travelling in South Carolina in the-*125year 1845, wrote to his brother in Hertford County, that he had heard of the said Moore, and that he was in South Caro, lina.

The plaintiff then proved by the brother and the husband of the sister of said Moore, that on the return of the said Jenkins, having before heard what he had written, they called on him to ascertain what information he had on the subject, and were told by him, that he had no other than1 this — that he had seen a man in South Carolina, whom he' did not know, who told him that he had heard of a man by the name of Moore, residing in some village, he did not remember what, who was said to be a shoe maker, with a wife and three children. It was further proved, that the said Adolphus had no such trade when he left this State : And also, that, when he left this State, he had a wife, who is yet alive ; and that the lessorof the plaintiff was his only child, and that she is yet an infant.

The defendant’s counsel insisted, that, under the will of John Moore, the lessor of the plaintiff had no title to the land devised, so as to recover ; and if that was not so, that there was not sufficient proof, that the said Adolphus was dead at the time of the demise of the plaintiff’s lessor.

By agreement, his Honor reserved his opinion upon the first point. And on the second he charged the jury, that, if the said Moore had been absent upwards of seven years and not been heard from, the law raised the presumption, .that he was dead; and that such presumption could not be rebutted by a report of his being alive, which, when enquired into, proved to be baseless and unfounded.

The jury returned a verdict for the plaintiff; and his Honor, by consent, ruled *pro forma,*that under the said will the land passed to the plaintiff’s lessor, on the death of her father : And judgment was rendered accordingly, and the defendant appealed.

*126
      *Bragg,*for the plaintiff.

*W. N. H. Smith,*for the defendant, submitted the following argument.

The devise of the land in controversy is to Adolphus E: Moore,for life, and after his death,- “to the heirs of his body, lawfully begotten, equally to be- divided between them, to them and their heirs forever,’’ with certain other contingent limitations over.

The terms, used by the testator in this devise, bring the-' case directly within the-operation- of the rule-in Shelley’?ease, unless such effect be given to the qualifying words-, “equally to-be divided between them>” as to form the ex-, ception.

It is submitted, that after much- conflict of opinion as fo-the efficacy of those words, and other expressions-of similar or equivalent import, it is now established,by the authority of English decisions, that such-qualifying expressions,, annexed to- a devise,, after a life estate, to-the heirs, or to the-heirs of the- body of the life-tenant, do not prevent the application of the principle, upon- which such- words- are construed, as words of limitation and not of purchase: and the estate of the tenant for life is enlarged into a fee simple or fee tail, as the case may be. Tide 2 Jarman on Wills Ch. 38, pages 277 — to 306, citing and discussing the following cases, to wit:

Candler *v*Smith 7 Dur. and E. 632; Person *v*Vickars 5 East. 548 ; Bennet. *v*Earl of Tankerville 1:9 Ves. 170; Cole *v*Goldsmith 7Tant. 209 ; Jesson *v_*Wright 2 Rligh 1; S.C. 2 Marsh 517. The same principle has been recognised and determined in this State ; Ross vJToms 4 Dev. 376 ; Vid Hayes’ Inquiry.

II. Do the words of inheritance, snperadded to the devise to the heirs of the body, exempt the present devise from the rule, which construes them to be words of limitation of the estate to the life tenant?

*127It is -difficult to see upon what principle the addition of 'words of inheritance can abridge the estate of the tenant, -and thus impair the established import of technical terms. •If the term “ heirs of the body” does not serve to designate persons who are to take, what effect do further words of inheritance impart ? It is submitted that such words be■come annexed to the estate created by the previous words "“heirs of the body,” which estate, whether with or without this qualification, vests in the life tenant only. Ham *v*Hum 1 D. and B. Eq. 598.

If, therefore, neither the expression “ equally fo be divide -ed” nor the further words of inheritance annexed to the present devise, have -the effect, separately considered, of preventing the life tenant from taking an estate of inheritance, do they, when found united, vary the rule of construction 3

1st. The legal import of technibal words, settled upon '•repeated adjudications, should not be disturbed, except for ■the strongest and most convincing reasons. The tendency *to*unsettle titles, when technical rules are departed from, whether those rules are founded originally .in wisdom or •not, forms a strong objection to the admission of an interpretation, calculated to lead to such a result.

2d. The case cited, *Ham*v *Ham,*and the authorities referred to in the opinion in that case, shew that the rule of construction in Shelley’s case was not adopted to prevent the •failure of the estate of inheritance in the donees, because in these cases the same rule is -followed, notwithstanding the presence of superadded terms of inheritance. That rule is a rule of general application, and is based on considerations, wholly independent of the .presence or absence of words of inheritance.

. 3d. The devise of the testator’s ;t-estate” is sufficient to pass the fee, without further words, and yet it is held, the rule of construction contended for applies ; *Bosnall*v *Harvey*,*4 Barn, and Cress., 610.

*128IIT. There was, therefore, an estate of inheritance in possession of the ancestor of the plaintiff’s lessor, and,-whether absolute or contingent, his deed therefor conveys the title to the defendant, or bars, by the warranty, the lessor who is his sole heir at law ; *Flynn*v *Williams,*1 Ire. 509.

IV. It is farther insisted that there was not sufficient proof of the death of Adolphus E. Moore. The artificial presumption from absence, if recognised at law, is one so likely to lead to error, as to require to be confined within its strictest limits. It should be limited to absences from domicil, either where there was the *animus reverlendi,*or to removal with a view to the acquiring a domicil *else*where„ It does not, in its reasons, seem applicable to the 'case of one, who abandons his fiunily and departs Avith no distinct object or purpose of location any where. Nor does it strictly apply to an interval of absence, interspersed with reports of his being alive, Avhether such reports be well-founded or otherwise. It does not legitimately belong to a judicial tribunal to permit the jury to trace the origin and truth of such reports, with a view to the laying down for their guidance a rule of evidence so purely artificial. It would render a case too complicated. On the contrary, with such deductions from a rule requiring a person to be seven years absent “ *unheard of,"*it should have been left with the jury to draw such presumptions as to the fact of death, as the circumstances might, in their opinion, warrant,- and not submitted to them as a rule of evidence, which the law required them to enforce; *Watson*v *England,*14 Sim. 28.

Pearson. J.

John Moore, who died in 1826, devised the land, sued for, to his son Adolphus for life, “and after his death to the heirs of his body, to *be equally divided between them, to them and their heirs forever*and if he dies *“*without heirs of his body, *living at the time of his death,"*then to his daughter Sally Matilda.

*129Adolphus took only an estate for life. The rule in *Shelley's case*does not apply.

This point is settled *bj Jones*v *Ward,*5 Ire. Eq. 400, where the matter is fully discussed and the cases reviewed. Indeed, this is a plainer case; for, there, no words of inherb tauce were added to the estate of the issue, and it was necessary to supply them, by inference from the act of 1784, ch. 204, sec. 12. Here, the words are added by the will. Then, it'was necessary to supply the words, *“ living at the time of his death”*by inference from the act of 1784; here, the words are added by the will.

Adolphus Moore, having only an estate for life, his warranty does not bar or rebut the lessor of the plaintiff; for she claims by purchase, and not by descent. By the Rev. Stat. ch. 43 — sec. 8, it is provided, that all warranties made ■by a tenant for life, descending or coming to any person in *remainder*or reversion, shall be void and of no effect. This is are-enactment of 4 Ann. Ch. 16, Sec. 21.

We also concur with his Honor upon the question, as to the presumption of death, when one has been absent or not heard of for more than seven years. The circumstance, that, during the term, there was a rumor of his being alive, which proved upon investigation to be wholly without foundation, tended rather to confirm, than to weaken the presumption; for, it thus appeared, that diligent enquiry had been made after him.

Per Curiam. Judgment affirmed.