#### *Jonathan Wright and others*vs. *William H. Herron and others.*

The deed conveyed, with warranty, lo ST. H. “ and the heirs of her body,” a tract of land, “ unto the said IÑT. H., and the heirs of her body and assigns forever *5”*— Held, that N. H. took an estate in fee conditional.

The question, whether the husband surviving, is entitled to hold for life as tenant by the curtesy, where the wife was tenant in fee conditional, referred to the Court of Errors.

*Before*Dargan, Ch., *at*Darlington, February, 1853.

Dargan, Ch. Newit Delk, by a deed dated 18th June, A.D. 1836, “ for and in consideration of one dollar in hand paid, as also for the good will and affection which *he*bore towards *his*daughter, Nancy Herron ; also for the better maintenance, support and livelihood of the said Nancy Herron and the heirs of her body,” conveyed in proper words, “ to the said Nancy Herron, and the heirs of her body,” the land described in the pleadings, “ unto the said Nancy Herron, and the heirs of her body and assigns, forever, peaceably and quietly to have and to hold, use and occupy, possess and enjoy, the said land granted and confirmed, against all other gifts, grants, bargains, sales, and against the said Newit Delk, his heirs and assigns, *442or any other person, or persons, lawfully claiming the same, or any part thereof.”

Nancy Herron was, at the date of this deed, the wife of the defendant, W. H. Herron, and had at that time five children. She departed this life in the year 1848, leaving her husband surviving her j and also leaving eleven children, one of whom (a daughter) has since died, leaving one child of tender years; some of the other heirs of her body are infants, and all of her heirs, including the husband, are parties to the cause, either complainants or defendants.

The bill is filed by Jonathan Wright and Eliza his wife, (a daughter of Nancy Herron,) and Darius L. Stuckey and Margaret his wife, (also a daughter of Nancy Herron,) against the other heirs of the body of the said Nancy Herron, and her surviving husband, the said William H. Herron. The plaintiffs claim that the deed of Newit Delk created a fee conditional in Nancy Herron, which, on her death, descended to the heirs of her body. They pray for a partition of the land among the heirs of the body of the said Nancy Herron ; and that the said W. H. Herron, who has used and occupied the premises since the deajh of his wife, may be decreed to account for the rents and profits.

William H. Herron, in his answer, admits all the material allegations of the plaintiffs’ bill. He concurs with them in the construction of the deed, which makes the estate a fee conditional in Nancy Herron. He admits, that on her death it descended to the heirs of her body ; subject, nevertheless, to a life estate in himself, as tenant by the curtesy. He therefore contends that he is entitled to enjoy the estate during his life, free from any accounting for the rents and profits, and that the plaintiffs are not entitled to any present partition.

I assume, as beyond debate, that the fee conditional is recognized in the jurisprudence of South-Carolina. There are so many decisions to this effect, that to deny the proposition would manifest the most daring irreverence for established principles and institutions. I assume further, that a grant or devise to *443one, and the heirs of his body, is the most proper and apt form of language to create such an estate. What was a fee conditional, as it was known to the common law, before the statute *de donis conditionalibus*? It was an estate, upon the condition that the first taker had heirs of his body, to whom, upon his death, the estate was to descend, *per formam doni,*from generation to generation, until the line of the donee became extinct. By considering it an estate upon condition, it came to he held, that when the donee had issue capable of inheriting the estate, he had performed the condition. By this, his estate became enlarged, so as to admit of its being alienated in his life, though it could not be the subject of devise. Upon the failure of heirs capable of inheriting the estate, it reverted to the donor. It admitted of restrictions, which confined the descent of the estate to issue of a particular class — -as heirs male or female. As an estate of inheritance, it was subject to dower and curtesy. These are the principal incidents by which this estate may be defined.

The statute *de donis*destroyed the alienable qualities of the estate, and in the other respects left it very much as it was before. The effect of this legislation converted the possibility of *reverter*to the donor into a reversion. The estate tail into which the fee conditional was transmuted, thenceforward became in England a *particular*estate, capable of supporting a' remainder. Where no remainder was limited upon the fee tail, on its termination by natural eflux, or in any other way, there was a reversion to the donor. The fee tail, though a less estate than the fee conditional, was subject to dower and cur-tesy:

“ Tenant by the curtesy is he, who after his wife’s death, (having had issue by her inheritable,) is introduced into her inheritance, and has an estate for life therein; and he is so called from the favor or curtesy of that law, which. made this provision for him.” Bac. Abr. Tit. Curtesy. The estate must be descendible. The condition seems to be, that the issue of such husband, may by possibility inherit. Ib. letter C.

*444Before the statute *de donis,*conditional fees were subject to ■ curtesy; when that statute converted them into estates tail, husbands were allowed to be tenants by the curtesy of them also. 1 Cruise, Dig. 117; 8 Rep. 70 ; *2*Inst. 836. In *Paine's*case, a husband was allowed his curtesy in an estate tail, after the possibility of issue extinct. 8 Rep. 67.

The curtesy of the husband and the dower of the wife seem to be correlative estates. While curtesy is a provision for life, allowed to the husband out of his deceased wife’s inheritance ; dower is a similar provision in favor of the wife, out of the descendible estate of her deceased husband. There is a remarkable analogy between these two freehold estates, in the circumstances under which they arise. In each, the estate is for life only. In each, there must be *seizin.*They attach upon legal, not upon trust estates. In each, the estate upon which they are engrafted must be a descendible estate; and descendible to such heirs as the husband or wife (as the case may be) might have had born to them in their life, capable of inheriting the estate.

The statute *de donis*has never been of force in Soulh-Caro-lina, and the statute of distributions (1791) does not bear upon the question here presented: whether a husband can have his curtesy in his deceased wife’s fee conditional estates. In the first clause of the last mentioned statute, it is declared, in sweeping language applicable to all inheritances, “ that the right of primogeniture be, and the same is, hereby abolished.” This clause, I apprehend, will apply equally to fees conditional as to fees simple. Tn the fee conditional, instead of descending according to the law of primogeniture, it would descend to all the issue, who could bring themselves within the description of the gift, as tenants in common, and to *take per capita.*

The subsequent parts of the Act clearly relate to the distribution of fee simple estates: for, after declaring the abolition of the right of primogeniture, it proceeds to enact *“*that when any person possessed of, interested in, or entitled unto, a real estate in his or her own right, *in fee*simple, shall die without dispos*445ing thereof by will, the same shall be distributed in the following manner.” Then follows the various clauses, directing the mode of distributing such estates, that is to say, fee simple estates. This Act makes no innovation upon the common law principles which govern the fee conditional, except so far as it relates to the abolition of the right of primogeniture. It is impossible to suppose that the subsequent clauses of this statute have any bearing upon, or can modify the doctrines of the fee conditional, for reference is only made to fee simple estates. If its provisions émbrace the fee conditional, then that estate is destroyed, and does not exist in South-Carolina. The statute speaks of *intestate*property. But . the fee conditional is not the intestate property of the deceased tenant last *seized.*He has no power of devising it. Nor is such an estate distributable on his death among his heirs general; but it descends, *per formarn doni,*to such of the heirs of his body as are entitled to take, according to the terms of the deed, or will, which created the estate. On the failure of, such issue, it does not go to collate-rals, and next of kin, (as the statute disposes, in such case, of a fee simple,) but it reverts to the donor or his heirs. There is not a feature in the distributory clauses which can be imagined to relate to the fee conditional, consistently with the preservation of the estate. Is there any legislation, *whatever,*modifying the common law incidents of the fee conditional *1*I am aware of none. If this proposition be admitted, no alternative is left me, but to decide according to the principles of the common law. If the common law concedes to the husband' an estate by the curtesy, in the fee conditional of his deceased wife, (there being no legislation upon the subject,) the Court has no discretion or authority to disallow the claim. Why should we revere the principle, which secured the *reverter*to the donor — or that which compelled the descent to the issue *per formarn*doni— and deny his curtesy to the husband ? All these rights stand precisely upon the same authority. And it seems to me that it would be a very great inconsistency to respect and enforce one of them, rather than another. It would not be irrevelant on *446this question, to inquire whether the correlative estate of dower is allowed by the law of South-Carolina, in the fee conditional. That it was allowed by the ancient common law, in such an estate, and that it is allowed by the present law of England, in fees tail, is indisputable. The statute of 1791 does not take away, absolutely, the widow’s dower in fee simple estates. It makes a provision for her out of the husband’s intestate property, and requires her to elect between the statutory provision and her common law right of dower. The statutory provision, when accepted, is *in lieu*of, and in bar of dower. This is expressly upon the principle of compensation. Her distributive share is considered an equivalent. But in the fee conditional there can be no compensation or equivalent. There is nothing which she can receive “in *lieu” of dower.*For that estate descends to the heirs of the body *per formam doni.*I see no reasonable ground for saying that the widow’s right of dower, in the fee conditional, is abolished. And if dower be allowed in such an estate, why should not the corresponding estate of curtesy be also allowed ?

The Act of 1791 makes no special provision as to the husband’s estate, by the curtesy, in his wife’s fee simple estate. In the 6th clause it declares, that “ on the death of any married woman, the husband shall be entitled to the same share of her real estate, as is herein given to the widow out of the estate of the husband.” Upon the construction of the Act, it has been held, that the husband is not entitled *to his curtesy in fee*simple estates. But, as the widow is allowed to elect between her distributive share and her dower, and as the Act expressly declares that the husband shall be entitled to the same share, in his deceased wife’s real estate, as it allows to the widow, out of the husband’s estate, would it not be a just construction, to allow the husband his election between his distributive share and his curtesy, and this even in fee simple estates *1*Is there any case which adjudges this question — which refuses him his election *1*

As to his estate by the curtesy, in the fee conditional of his *447deceased wife, there is, in my judgment, no reason, precedent or authority for disallowing it. I conclude what I have to say upon this interesting question, by referring to the able opinion of Chancellor Johnston, in the Circuit decree, in *Molture*vs. *Young,*3 Rich. Eq. 559.

It will be proper for nre now to notice some other views as to the construction of the deed, that were urged at the trial of the cause. In the *habendum*of the deed, the words are, “ unto the said Nancy Herron, and the heirs of her body, and *assigns*forever,” &c. It was suggested that the words, *“*and assigns,” might make a difference in the construction. It does not very clearly appear, whether by the words were intended the assignees of Nancy Herron, or the assignees of the heirs of her body. From the analogy, which this expression bears to the usual form of conveyances of fee simple estates, I apprehend it must be considered as meaning the assignees of Nancy Herron. If there be any force in the argument, as urged in behalf of the issue of Nancy Herron, and if the words have any power in modifying the construction, it must be to enlarge the estate from a fee conditional to a fee simple. This would be adverse to the parties urging the objection : for, if it be a fee simple, the husband would be entitled to take one-third absolutely, under the statute of distributions. But I think the expression, (“ and assigns,”) whether it means the assignees of Nancy Herron, or the assignees of the heirs of her body, can have no modifying ■influence upon the interpretation. Certainly, the estate in fee conditional is assignable absolutely, when the condition is performed ; and before the birth of issue, it is assignable for the life of the tenant, for the time being, and so of every tenant for life in succession: thus the rule of construction, which demands, where it is possible, that every part of a deed *must*have some meaning, is satisfied, without resorting to a forced construction, to defeat the obvious intention which the grantor had, of giving some interest to the heirs of the body.

Again, it has been urged, that because the grantor warranted the title generally, and especially against himself and those *448who claimed by, or through, him, the idea- of a *reverter*to himself is excluded or negatived. Again, I say, that the objection, if allowed, would be adverse to the parties making it: for, if there be no *reverter,*there can be no fee conditional; and if no fee conditional, it must be a fee simple — In which case the husband would be entitled to one-third, in fee, as his distributive share.

But it is a *petitio principii*to say, that the warranty excludes the idea of a *reverter.*What title the grantor warranted, depends upon what title he intended to convey. If, from the other parts of the deed, it appears that the grantor intended to give to Nancy Herron a fee conditional, it would be a perversion of the language employed, to say that his warranty covered a larger estate than he intended to create. It is needless to dwell on this point.

In the judgment' of the Court, the estate created by the deed of Newit Delk, to Nancy Herron, is a fee conditional, and'that her surviving husband, W. H. Herron, is entitled to hold the said estate for his life, as tenant by the curtesy.

It is ordered and decreed, that the bill be dismissed.

The plaintiffs appealed, and moved this -Court to reverse the decree, on the grounds :

1. Because his Honor erred in holding that Mrs. Herron took a fee conditional in the lands conveyed to her by the deed referred to in the pleadings.

*2.*That under a proper construction of said deed, Mrs. Her-ron took a life estate in the land, and, at her death, the remainder vested in her children absolutely, as purchasers; or, if this construction is erroneous, then Mrs. Herron and her children were jointly seized.

3. That the estate of tenancy by the curtesy does not exist in this State, has never been recognized by our Courts, and the reason and policy upon which it was founded in England does not exist here *;*and that his Honor erred in holding that W. H. Herron was entitled to said lands for life, as tenant by the curtesy.

*4494. Because the decree was, in other respects, contrary to Law, Equity, and a proper construction of the deed.

Dargan, for appellants.

*Moses,*contra.

The opinion of the Court was delivered by

WaRülaw, Ch.

Whatever diversity of opinion there may be among the Judges of this State, concerning the implication of a fee conditional, and as to some of the incidents of the estate, the existence of the estate itself, with most of its attributes, according to the Common Law, has been recognized by many decisions of our Courts, *(a)***If there be mischiefs in this state of the law, the Legislature alone can correct them.

In the present instance, the grantor in the deed creates a fee conditional in strict, technical form, by donation to Nancy Her ron and the heirs of her body. There is neither need nor room for implication. In the *tenendum*of the deed, the terms of tenure are*,*unto the said Nancy Herron, and the heirs of her body, and assigns, foreverand, in the argument, much stress is laid upon the word “ assigns.” But it is plain that the term “assigns,” by grammatical construction, must be referred to Nancy Herron, the tenant in fee conditional; and that, if it could be construed to refer to the heirs of her body, it cannot enlarge the heirs to take the inheritance, and expresses merely by *pleonasm*the right of *“*assignment ” or alienation incident to the estate. We are satisfied with the reasoning and conclusion *450of the Chancellor on this point; and it is adjudged and decreed, that Nancy Herron took an estate in fee conditional.

This Court is not agreed on the question, whether the surviving husband of Nancy Herron be entitled to hold for his life, the whole lands, as tenant by the curtesy; and two Chancellors request, that this question be referred to the Court of Errors.

. It is, therefore, ordered, that it be referred to the Court of Errors, to determine the question, whether the surviving husband of a wife, who is tenant in fee conditional, be entitled to hold, by the curtesy, the land for his life, conveyed to the wife in fee conditional.

Johnston, Dünkin and Dakgan, CC., concurred.

(a)

*Murrell*vs. *Mathews,*1 Brev. 190; 2 Bay, 397; *Jones*ads. *Postell & Potter,*Harp. 92; *Bedon*vs. *Bedon,*2 Bail. 231; *Cruger*vs. *Heyward,*2 Des. 112, 429; *Thomas*vs. *Benson,*4 Des. 18; *Milledge*vs. *Lamar,*4 Des. 638; *Carr*vs. *Porter,*1 McC. Ch. 90; *Henry*vs. *Felder,*2 McC. Ch. 330; *Mazyck*vs. *Vanderhorst,*Bail. Eq. 49; *Izard*vs. *Izard,*Bail. Eq. 228; *Adams*vs. *Chaplin,*1 Hill, Ch. 268, 276; *Edwards*vs. *Parksdale,*2 Hill, Ch. 189, 196; *Deas*vs. *Horry,*2 Hill, Ch. 246, *Gray*vs. *Givens,*Riley Ch. Cas. 41; *Laborde*vs. *Penn,*McM. Eq. 448; *Dehay*vs. *Porcher,*1 Rich. Eq. 269: *Whitworth vs. Stuckey,*1 Rich Eq. 404; *Chaplin*vs. *Turner,*2 Rich. Eq. 138; *Hull*vs. *Hull,*2 Stroh. Eq. 189, 3 Rich. Eq. 77; *Smith*vs. *Hilliard,*3 Strob. Eq. 214; *Barksdale vs. Gamage,*3 Rich. Eq. 271; *Hay*vs. *Hay,*3 Rich. Eq. 390; *McLure*vs. *Young,*3 Rich. Eq. 563, 574; Buist *vs. Dawes,*4 Rich. Eq. 421; *Bailey*vs. *Seabrook,*Rich. Eq. Cas. 419.