#### *W. W. Holeman et ux. et al.*v. *A. H. Fort et al.*

Columbia,

Nov. 1849.

The deed of gift was to *“ the joint heirs”*of the daughter and son-in-law of the donor. They had two children living at the time. The deed was *luM,*to be valid, but to operate only in favor of the two children in *esse*at the time of its delivery, to the exclusion of the afterborn children.

If the donee can be identified, either by name or description, the deed will not be void for the want of a proper party to take under it.

*Before*DuNkin, Ch. *at Lexington, June,*1848.

The following circuit decree contains all the facts of the case:

Dunkin', Ch. — The lapse of time has combined with the tortuous conduct of some of the parties to involve the facts *67of this case in some obscurity. It seems, however, that prior *to*1813, the ancestor’s or original stock of the slaves in dispute, were the property of “ old Mr. Hoof,” (as the witness called him,) the father of the defendant, James D. Hoof, Sr. and the grandfather of the complainants. This person died intestate, and William Geiger, (the witness,) together with the widow, administered on his estate. The only distributees were the ' widow and her son, the defendant, J. D. Hoof, Sr. then about 12 or 14 years of age. The negroes went or remained in the possession of the widow. Sometime after the death of the intestate, she intermarried with Thomas Jackson. This event probably took place in January, 1813. In April, of the same year, the defendant, J. D. Hoof, Sr. married his present wife, who was the daughter of Thomas Jackson — he tvas, then, very young, probably about 17 years of age. He and his wife lived with their parents for three or four years after his marriage: they then removed to Edgefield, taking the negroes with them, where they remained long enough to make one crop. Hoof became involved in a law suit, sold Mary, one of the slaves, and they then returned back-:— Thomas Jackson went to Edgefield and arranged the difficulty in which Hoof had been involved, and on his return, the deed on which these proceedings are founded, was executed. The deed is in the following words, to wit:

“ To all people to whom these present writings shall come, be seen or made known, greeting : Know ye, that I, Thomas Jackson, of the State and district aforesaid, in consideration of the *very great love*and affection that I bear my son-in-law, James D. Hoof, and daughter, Ann Hoof, of the State and district aforesaid, and for other good causes and considerations me thereunto moving, have given, granted and confirmed unto the joint heirs of said James D. Hoof, and Ann Hoof, *his wife, the following*negroes, viz: Nose, Milly and Jack, to have and to hold the said three negroes, Rose, Milly and Jack, with all the issue of the said Rose and Milly, which they may hereafter have, to the joint heirs of the said James D. Hoof, and Ann, (his wife.) I, the said Thomas Jackson, for myself, my heirs, executors and administrators, do warrant and forever defend the said three negroes unto the joint heirs of the said James D. Hoof, and Ann, his wife, and to their heirs shall and will warrant and forever defend, by these presents. In witness whereof, 1, the said Thomas Jackson, have hereunto set my hand and seal, this twenty-third day of October, in the year of our Lord one thousand eight hundred and seventeen, and in the forty-second year of American Independence.

(Signed) Thomas Jackson, [l. s.]

Signed, sealed, and delivered in the presence oí Laban Williams, William Paulding, J. Q.”

*68The deed was recorded in Orangebürg district, where all the parties resided. James D. Hoof was not present when the deed was executed, and so far as the subscribing witness could testify, he had no knowlege of its existence. The negro Jack, mentioned in the deed, was originally the property of Jackson, but had been purchased from him by James D. Hoof, Sr. his son-in-law. *William Geiger,*apparently a highly respectable witness, testified that he had heard Jackson say he had got Jimmy’s (James D. Hoof) property settled to him and his wife for their lives. Mrs-. Jackson and witness’s mother were sisters, and on the first visit after this deed was executed, Jackson told him he got Jimmy’s property so fixed that he and his wife could have the use of it without being liable for his debts, and afterwards to their children.

James D. Hoof, Sr. says in his answer, that when the deed was executed, Rose, Milly and Jack were his own property; that his mother, prior to her marriage with Jackson, conveyed these negroes to him by deed. In this there is one mistake. At the date of the deed his mother was the wife of Thomas Jackson, and the donor is styled Sarah Jackson.

But Hoof says that, when he married in 1813, he was very young, and became improvident; and that within four years afterwards he found it convenient to consent, and did consent, that his step-father, Thomas Jackson, should make a bill of sale of the slaves, Rose, Milly and Jack, by which bill of sale he would secure to the defendant and his wife, Ann, the joint use of the said slaves for life, and with a limitation to their children upon their death. That Thomas Jackson agreed to execute such instrument, and he understood from him that he had done so; that Jackson paid him no consideration for the slaves, and he expressly agreed that the deed should secure to him and his wife a joint interest in and use of the said slaves during their lives, with remainder to their children.

J. D. Hoof, Sr. has been always in possession of the ne-groes, until about the time of instituting these proceedings : he has been always embarrassed. In August, 1828, he applied for the benefit of the Prison Bounds Act, swearing that he had no property, real or personal, and was discharged by the plaintiff. Again, in October, 1824, he was arrested in a different suit, made substantially a similar affidavit, and was discharged by the Commissioner of special bail. He has held out to others, as appears from the testimony, that these negroes were the property of his children, and not his own. It is difficult to say that there is any evidence of any claim to the contrary, on the part of James D. Hoof, Sr. until having successfully baffled his creditors, for a series of years, it became necessary to contest the importunate demands of his *69children. This controversy is between him and his children, — some of the children insisted on having a portion of( the negroes, and Hoof thereupon, for reasons stated in his answer, sold them for $3600, and he has been required to give security for their forthcoming, to abide the decree.

Rice Eq. R, 184.

2 Atk. 581.

p. 582.

Rice Eq. R, 243.

The Court rather concludes from the testimony, (and J. D. Hoof, Sr. is not at liberty to controvert the inference,) that prior to the execution of the deed of October, 1817, the ne-groes mentioned in that deed were the property of James D. Hoof, Sr. If the deed of Jackson had given a life estate to James D. Hoof, with remainder to the joint heirs of him and his wife, “ to their heirs and assigns forever,” it would have been in strict conformity with the authority which Hoof admits that he vested in him, and such deed would have been perfectly valid for all the purposes intended to be accomplished. If James D. Hoof, Sr. being the owner of the negroes, had executed a deed in the terms of that of October, 1817, by which he gave, granted and confirmed to the “joint heirs” of himself and wife three negroes, it would be competent for the Court to enquire into the meaning, and if not inconsistent with principle, to give effect to that intention. In *Bag-shaw*v. *Spencer,*Lord Hardwiche, admitting that there ought not to be one rule of property in Law, and another in Equity, says: “ but surely a Court of Equity may be more liberal in the construction of words, to make them agree with the intent of the party ;” and he denied that “ even in the case of volunteers, the words must be taken as they are, and cannot be varied from.” According to the strict legal construction, no persons could be said to be the “joint heirs” of J. D. Hoof, Sr. and Ann, his wife, as both of them were still in esse.— - The term “joint” indicates that no immediate transfer and enjoyment was intended, but rather that it was a settlement on the issue of that marriage, in contradistinction to the issue of any other marriage. It is not very distinguishable from the case of *Dawson*v. *Dawson.*It was there held that an interest might pass by deed, which was to be enjoyed *in fu-turo,*and that the grantor himself stood seized in the meantime. It was also ruled that if a trustee were necessary, this Court would appoint a trustee in that case. In that case the donor “ gave up all to the chilldren named in his will.” It was determined that the enjoyment of the property, given by the deed, was postponed until the will went into operation by the death of the testator. The admissions of James D. Hoof, Sr. are perfectly competent to show that the deed of the 23d October, 1817, was made with his privity and consent. It was manifestly intended as a settlement upon the joint heirs of J. D. Hoof and wife, as the terms purport, and as the defendant admits. In order to blind his creditors, the very inartificial (but as it proved very effectual) expedient *70was resorted to of having the deed executed by his father-in- ^ jaW) Thomas Jackson. It is not for Hoof to defeat the pur ■ / poses of the settlement altogether by alleging that a life estate tQ jijmseif was not expressly given. The life interest was left in the original owner, and thus the effect was in conformity with the admitted intention — nor is it perceived that the result would be different as to the rights of the complainants, if Thomas Jackson had been the real owner at the time of the execution of the deed. The terms indicate clearly enough that the object was to make a settlement, and not to transfer an immediate interest and right of enjoyment to those in whose favor the deed was executed. The father would be construed a trustee, but as to the complainants only for the purpose of preserving the property, and delivering it up when the right of enjoyment commences.

It is ordered and decreed that the transfer of the slaves, made by the defendant, James D. Hoof, Sr. *pendente lite,*be set aside and annulled, and that he be perpetually enjoined from eloigning, removing or otherwise disposing of the same. That he file forthwith in the office of the Commissioner, an inventory of said slaves, and that the bond heretofore given by him, stand as security for his observance and fulfilment of this decree. Parties to pay their own costs.

The complainants, William W. Holeman, and Sarah, his wife, Polly Hoof, Isabel R. Hoof, and Walter M. Hoof, appealed and moved to reverse or modify the circuit decree, upon the following grounds :

1st. Because the deed of Thomas Jackson, dated 23d October, 1817, vested an absolute estate m the slaves Rose, Milly and Jack, in Thomas C. Hoof and Sarah Hoof, the only children of James D. Hoof, and Ann, his wife, *in esse*at the execution of said deed.

2d. Because his Honor, the Chancellor, admitted parol testimony to explain, control, and vary the terms of the said deed.

3d. Because the declarations of Thomas Jackson, made subsequently to the execution of the said deed, were admitted in evidence.

The defendant, J. D. Hoof, Sr. appealed from the decree of the Chancellor, and moved to reverse the same, upon the ground that the deed of October, 1817, conveying slaves to the heirs of a person *in esse,*is a nullity, and that neither the complainants nor any other children of J. D. Hoof, Sr. take any interest in the said slaves by virtue of the said deed.

*JBcmskett*& Hooker,.,Complainants’s Solicitors.

*W. F. DeSaussure, Carroll*& *Griffin,*Defendants’s Solicitors.

*71*Curia, per*

Caldwell, Ch.

The instrument under which the questions in this case arise, is in the words fol- ^ lowing:

> “ To all people to whom these present writings shall come, be seen, or made known, greeting : Know ye, that I, Thomas Jackson, of the State and district aforesaid, in consideration of the very great love and affection that I bear my son-in-law, James D. Hoof, and daughter, Ann Hoof, of the State and district aforesaid, and for other good causes and considerations me thereunto moving, have given, granted and confirmed unto the joint heirs of said James D. Hoof, and Ann Hoof, his wife, the following negroes, viz Rose, Milly and Jack, to have and to hold the said three negroes, Rose, Milly and Jack, with all the issue "of the said Rose and Milly which they may hereafter have, to the joint heirs of the said James D. Hoof, and Ann, his wife. I, the said Thomas Jackson, for myself, my heirs, executors, and administrators, do warrant and forever defend the said three negroes unto the joint heirs of the said James D. Hoof, and Ann, his wife, and to their heirs shall and will warrant and forever defend, by these presents. In witness wereof, I, the said Thomas Jackson, have hereunto set my hand and seal, this 23d day of October, in the year of our Lord one thousand eight hundred and seventeen, and in the forty-second year of American Independence.

> (Signed) Thomas JacksoN, [l. s.]

> Signed sealed, and delivered in the presence oí Laban Williams, William Paulding, J. Q.”

There are three classes of persons that have claims under this instrument: 1st. James D. Hoof; 2d. The two children, Thomas C. Hoof and Sarah, who were in *esse*at its execution; and 3d. The other children of James D. Hoof and Ann, his wife, born since.

But the preliminary point must first be determined — is it a valid deed ?

It has all the requisites of a deed, both in form and substance, except the names of the grantees who are to take under it. The gift is to “ *the joint heirs of said James D. Hoof and Ann Hoof, his wife.”*

It cannot be controverted that, according to the strict rules of the common law, a deed conveying lands to the heirs of a person living, is void, and cannot be set up either at Law or in Equity. The indefinite description of the donee, and the rules that *nemo est hceres*viventis, and that a freehold cannot be created to take 'effect in future, combine .to defeat . such an instrument.

But here the subject matter is personal property, and the word heirs is not necessarily used in such conveyances.— The common law, as well as history, often speaks of the *72heir appparent and of the heir presumptive to the throne of ( Great Britain; and in common parlance he who stands near- ’ est in degree of kindred to the ancestor, is called in his lifetime, his heir, although no one can be an heir, strictly speaking, until the ancestor be dead. The word heir is, apart from its technical meaning, universally used as synonymous with child.

2 Vent. 311. 1 Pr. Wms. 229.

2 Pr. Wms. 342.

Ambler, 274, 1755.

Cox’s Cases, 327; Swinton v. Legare, 2 M’C. Ch. 440; Cole Y. Crayon, 1 Hill Ch. 322.

9 Connect. Rep. 272.

In an ancient case, *Burchett*v. Durdant, there was a devise to the heirs made of Robert Durdant, then living, and it was adjudged in Westminster Hall, and twice affirmed in the House of Lords, to be a good limitation to George, the eldest son of Robert Durdant, although Robert Durdant was then living. So in *Darbien on the demise of Long*v. *Beaumont,*a devise to the *heirs male of J.*/S', begotten, J. S. having a son, and the testator taking notice that J. S. was then living, was considered a sufficient description of the testator’s meaning, and such son was adjudged to take, though strictly speaking he was not heir.

The case of *Thomas*v. *Bennett*arose out of marriage articles, to which greater latitude has been extended than to construction of the limitations of estates; there the words were : “ to the heirs of the body of my niece, Mary Bennett, by her said husband, and to their heirs,” and the Court held that these words shall be construed children.

In *Loveday*v. *Hopkins*the words of the will were, “ I give to my sister Loveday’s heirs, £6000.” “ I give to my sister Brady’s children, each £1000.” The sister, Mrs. Love-day, had two children at the making of the will, and she survived the testatrix; one of her children died, leaving children, in the lifetime of the testatrix, and the surviving child claimed the £6000. The master of the rolls, Sir Thomas Clarke, held that the defendants who were the children of the deceased child of Mrs. Loveday, were excluded, and that her surviving child was entitled to the £6000.

Where one gave his wife the residue of his estate, “ for her life and no longer,” and upon her decease he gave and bequeathed it “ to the children of Mr. John Ayton and his wife, Jane, to be equally divided amongst them, the said Jane Ayton’s children, and not to any child by another marriage of either party,” the residue was held divisible amongst the children of Ayton and his wife who were living at the death of testator’s wife, but children born after her death were excluded. There the time of distribution was not indefinite, but was fixed at the death of the tenant for life, and all those that were then in esse, came within the class that were to take the gift.

In *Lockwood*v. *Jessup*the plaintiffs brought an action on a promissory note, payable *to the heirs of J. iS.*and averred that, at the date of the note, they were the children, and the *73only presumptive heirs of J. S. then living; the word heir was held on demurrer to denote the presumptive heir of a person living, and that the action was sustainable.

4 Des. E. R. 272.

Ib. 459.

1 Bail. R. 119.

M’C.Ch. R. 214.

In *Stroman and wife*v. *Rottenburg and wife,*the deed purported to have been made by the donor, “ in consideration of the love I have and bear to my beloved grandchildren of my daughter, Catharina, I have given and granted, &c. unto the said my grandchildren of my daughter, Catharina,” it was held not only to be sufficient, but to comprehend only the, grandchildren *then born,*and not others born afterwards.

In *Moon et al.*v. *Herndon,*incorrectly reported as *Moore*v. *Henderson,*the limitation was to a son and his heirs, but if any of the testators children should die without an heir, theu his share to go to the rest of testator’s children ; it was held not too remote, and that the testator used the word heirs as synonymous with children.

In *Kitchens*v. *Craig*there was a deed of gift to the heirs of a person then living, in which it was recited that the donor had delivered the slaves which were the subject of the gift to the heirs, and it was held that this recital manifested the intention of the donor to restrain the gift to the heirs or children then living, and that children born afterwards did not take.

Where the words were, “ I give and bequeath unto my dear and beloved grandchildren,” without any qualification or limitation of time or circumstances when distribution should be made; that period was considered indefinite, and the Court, therefore, excluded the grandchildren born after testator’s death, and held that the devise vested only in those born at his death. *Myers*v. *Myers.*

The donor when he made this deed knew well the condition and relation of the persons designated in it, and may have adopted the expression, “joint heirs” of James D. Hoof and Ann, *his wife,*from the fact that they, at that time, had two children, Thomas C. Hoof and Sarah Hoof. From what had already occurred from James D. Hoof’s improvident management of his affairs, the donor may be presumed to have had apprehensions, if he conveyed the negroes to Hoof or his wife, they might be made liable for his debts, and the family lose the benefit of their services, and subsequent events have demonstrated that he acted wisely in not making the conveyance to either of them. Hoof has been insolvent from thence forward, and has, during that period, twice taken the benefit of the Prison Bounds Act, but the negroes have not been embraced in either of his schedules, nor taken by his creditors. As far as such extrinsic evidence can corroborate the construction given to the deed by all parties, it would seem that James D. Hoof has not been considered as the owner of the such circumstances not be conclu*74sive, hut ave well calculated to raise presumptions against his rjgijk The terms 0f the <jeecj (j0 n0(; convey any interest or estate to any other persons but to the *joint heirs*of Janies p Hoof, and Ann, his wife, and the enquiry is, do these words sufficiently designate the donees *1*Can such expression be applicable to any other persons than these two children ? If the donee can be identified, either by name or by description, the deed will not be void for want of a proper party to take under it. There is a material difference between a will and a deed ; the latter takes effect from its delivery, and vests the title of the property in the donee immediately ; the former usually looks forward to the future, and contemplates the condition of things at the period of the testator’s death, or the distribution of the estate; hence after-born children are rarely provided for by a deed, the object being generally to pass a present interest, but they are frequently let in under the construction of wills by which gifts are made to children, when there is an anterior interest and they come in esse before its determination, especially if there be no child to take at the time of vesting in possession, or where there is a fixed period for the distribution: a legal remainder in real estate would constitute an exception.

This being a gift *inter vivos,*and operating *per verba in presentí,*it must fail if there was no one in *esse*in whom the title could vest; no one but a child of James D. Hoof, and Ann, his wife, could be their joint heir; and Thomas C. Hoof and Sarah Hoof being the only persons who came within that description, it appears to be sufficiently certain that they were the persons the donor intended should receive the benefit of the gift. Had such persons not been in existence at its execution, it would either have been considered void, or a different construction would have been given to it, from the necessity of the case; no one could take but after-born children, and as there was no definite period for distribution, it might be presumed the donor intended that *all*the children should come in and participate equally : this interpretation might be given, *ut res magis valeat quampereat,*and a clear implication might arise from the circumstances in favor of *all*the after-born children. But here the donor knew that James D. Hoof, and Ann, his wife, had two children living, and as nothing was expressed in or can be implied from the terms of the deed in relation to after-born children, they do not appear to have been either necessary to its completion, or contemplated by it, and it would require a clear and necessary implication from its context, before it could be held to open and let them in. That this was not the donor’s intention, may be inferred from the facts that no contingency was contemplated as necessary to complete the gift, and no period was designated for the distribution of the property among the *75donees. The slaves given by the deed vested in the children in esse at its execution, and their rights ought not, upon , a slight presumption, to be abridged in favor of those that have been born since; there having been no express provision for them, and there being others who came within the description and were capable of taking, repels the conclusion that they were intended to be included: *expressio unius (est) exclusio alterius.*

It is apparent from the face of the instrument, that the donor meant that no other class but the “ joint heirs” should receive the benefit of the gift. An immediate interest and title passed to these two children on the delivery of the deed; they then became entitled to the absolute and unconditional enjoyment of the property, and but for the birth of the other-children, there would have been no doubt that they were the only persons the donor intended: their rights stand upon the terms of an express grant; but the claim of the after-born children can, at best, rest only on an implication from circumstances which have arisen independently of the deed, and were unnecessary to its consummation; such, however, as the donor might have anticipated and provided for if he had thought fit: nothing but a clear and necessary implication ought to abridge their vested rights in favor of the after-born children, and the terms of the deed do not warrant such a construction.

It is, therefore, ordered and decreed that Thomas C. Hoof and Sarah Hoof (who has intermarried with W. W. Hole-man) are entitled to the said slaves absolutely in exclusion of James D. Hoof, and Ann, his wife, and of their children born since the delivery of the said deed ; and that the said James D. Hoof do deliver them up to the said Thomas C. Hoof and Sarah, and that his bond, heretofore given, stand as a security for his fulfilment and performance of this decree, and that the circuit decree be modified in these, and that it be affirmed in all other points.

JohNston and Daugin, CC. concurred.

*Decree modified.*