#### *Sarah P. Danner*vs. *William H. Trescot.*

Conveyance of land lo ((II. 1?. and his heirs 5 to the use of the said II. 37. and his heirs; in trust for the use of S. 3?., *during the term of her natural*life; and after her death, then in trust to and for the *right heirs*of her, the said S. P., *their heirs and assigns for ever*— Held, that S. P., the *cestui (pie trusty*took an estate absolute and in fee.

*Before*Darc;AN, Ch., *at Charleston, June,*1852.

The Circuit decree is as follows :

Dargan, Ch. This is a bill for the specific performance of an executory contract, for the sale of a house and lot in the town of Beaufort. By a written contract, dated the 29th of April, A.D. 1851, the plaintiff undertook to convey to the defendant the property in question, and to make him good titles ; and the latter agreed to pay to the plaintiff the sum of six thousand dollars, in different instalments, not necessary here to be particularly brought to notice. The plaintiff avers her readiness to comply with the conditions on her part, and the defendant having refused to perform, this bill was filed.

The defendant, in his answer, alleges, as the ground of his defence against the prayer of the bill, that the plaintiff is unable to execute to him good and sufficient titles in fee simple, which, according to the true construction of the agreement, she was bound to execute. The plaintiff derived title from her late husband, N. J. Danner, who, by a deed bearing date the 29th day of April, 1847, conveyed the lot to Henry Fuller in fee, in trust, however, for uses that are therein declared, in the following language: “ to have and to hold, all and singular, the premises before mentioned, *unto the said Doctor Henry Fuller and his heirs; to the use of the said Dr. Henry Fuller and his heirs :*in trust, nevertheless, for the sole, separate and only use of the said Sarah P. Danner, during the term of her natural life ; so that the same shall in no manner be liable to my debts, contracts or engagements; and after her death, should the said Sarah P. Danner survive me, the said N. J. Danner, *357and only in that event, then in trust *to and for the right heirs of her, the said Sarah P. Danner, their heirs and assigns forever.*But should I, the said N. J. Danner, survive her, the said Sarah P. Danner, then in trust, to hold the aforesaid premises to the only use and behoof of me, the said N. J. Danner, my heirs and assigns, forever.”

The plaintiff has survived her husband, N. J. Danner, and in order to determine whether she is entitled to have a decree against the defendant for a specific performance of the contract, it will be necessary to see whether she is *no%o*vested with a fee simple estate in the premises which she has undertaken to convey.

The contingent estate in fee, reserved to the husband in the event of his survivorship, is gone, the condition on which it was to take effect not having happened. It can now never happen, and is not in the way. So that the deed, as to the question before the Court, must be construed upon the words giving to Mrs. Danner an estate for life, “ and after her death,” “ to and for the right heirs of her, the said Sarah P. Danner, their *heirs and assigns forever.”*And the discussion will more particularly turn upon the effect of the last words of the preceding sentence, which I have placed in *italics.*What effect have these words that are superadded to the previous words of limitation? Strike them out, and the defendant himself would admit that the estate of the husband, limited upon his survivor-ship, having failed, Mrs. Danner would now take the fee under the rule in *Shelley's*case. But the defendant insists, that, by the force and effect of the superadded words of limitation, *“the right heirs*” of Mrs. Danner will be entitled to take at her death, as purchasers; or, in other words, that Mrs. Danner is only entitled to a life estate, with remainder in fee to her own right heirs.

The reason of *this*construction rests upon the. ground that the donor, by indicating an intention to create a new stock of inheritance, the *u propositus*” of which should be, not Mrs. Danner, but her. “right heirs,” has shown that he did not use *358the word “ heirs ” in its general and technical sense; but to describe a class of persons who should be entitled to take at the death of Mrs. Danner. I assent to the doctrine, when the subject matter of the gift is personal estate. I assent to it, however, with this qualification : that the superadded words of limitation must be after a gift *to the heirs of the body, or the*issue, and not after a limitation to one and his heirs generally. I am aware of no case, English or American, where, even in reference to personal property, this idea of cutting down what would otherwise be a fee, by superadded words of limitation, indicating an intent to create a new stock, has ever been applied in a case where the gift to the first taker was to him and his heirs general.

With this qualification, I think the doctrine well sustained when applicable to personal property. It received an early recognition in *Dott*vs. *Wilson,*1 Bay, 457. It was affirmed with great solemnity in *Lemacks*vs. *Glover,*1 Rich. Eq. 141, by the Court of Errors. *Myers*vs. *Anderson,*1 Strob. Eq. 344, was decided upon its authority. All these were cases of personal estate.

The first trace of the doctrine, that I have been able to find in the English reports, is that of *Peacock*vs. *Spooner*and others, decided by Sir Joseph Jekyll, 4 Geo. *2,*and cited by Lord Hardwicke, in *Hodgeson*vs. *Bussey, 2*Atk. 89. Upon the authority of *Peacock*vs. *Spooner,*and *“*the general run of the cases,” as hé expressed it, (none of which latter, however, were cited,) Lord Hardwicke decided the case of *Hodgeson*vs. *Bussey.*In each of these cases, the property limited was a term for years, which, in questions of this nature, stands upon precisely the same footing as chattels personal. See note, *2*Atk. 89. The latter case, *(Hodgeson*vs. *Bussey,)*arose under a deed of post-nuptial settlement, by which the husband conveyed to trustees a term for 59 years, in trust, to permit Grace Bussey, his wife, to receive the rents and profits for her sole and sepa rate use, during the term, if she should so long live, and after her decease, to permit Edward Bussey (who was the settler) *359to enjoy the rents and profits during the remainder of the term, if he *should so long live, and after his decease, in trust for the heirs of the body of*Grace, by Edward Bussey begotten, *their heirs, executors*and *assigns.*This case is relied on in the argument *for the*defendant, as being in perfect analogy to that before the Court; But it- has several very important con-tradistinctive features. First, the subject matter is personal, and not real property. Second, the limitation is not to the heirs general, as in the case of Mrs. Danner, but to the heirs of the body of Grace Bussey. And, third, the limitation is to even a more limited class than to the heirs of the body of Grace : for it is to the heirs of her body begotten by Edward Bussey.

As our Courts have gone to the English decisions for the authority and principles upon which *Dott*vs. *Wilson, Le-macks*vs. *Glover,*and similar cases have been decided, it would be the extreme of absurdity and inconsistency not to consider the English decisions as authoritative, when a similar question arises as to real estate.

Jarman (2 Jarm. Wills, 271,) lays down the doctrine broadly, “ that where the superadded words amount to a mere repetition of the preceding words of limitation, they are, *of course,*inoperative to vary the construction.” The text is supported by a uniform and unbroken series of decisions, down to the case of *Nash*vs. *Nash,*3 B. and Ad. 839, which is. directly in point.

The cases go further than this. In *Goodright*vs. *Pulyn,*Ld. Eaym. 1437, S. C. 2 Strange, 729, the devise was to the first taker *for*life, and' after his death, *to the heirs male of his body and their heirs forever*: — and if he should happen to die without such male heirs, then over.. It was held to be an estate tail in the first taker. See *Buxton*vs. *Uxbridge,*10 Metcalf, 87. So that it seems to be well settled, that a limitation to the heirs general of the heirs of the body is ineffectual to turn the words “heirs of the body *”*into words of purchase.

It is said in argument, that the case of *Doe*vs. Ironmongerj 3 East, 533, is contrary to this proposition. It is not so consid*360ered by any English writer. It is true, that it is quoted by Chancellor Harper, in *Lemacks*vs. *Glover,*in support of the principle therein decided, which, as we have seen, related to personal estate. That learned Chancellor misconceived the issue decided in *Doe*vs. *Ironmonger,*in applying it to the point involved in *Lemacks*vs. *Glover.*And this is shown by a reference to the report of the former case, which I have now before me.- The devise, (which was of lands, &c.,) was to Sarah Hallen, &c., “ and after her death, for the use of *the heirs of her body,*lawfully begotten or to be begotten, *their heirs and assigns forever, without any respect to be had or made in regard to seniority of age or priority of birth.”*It is true, that the form of the devise was similar to that of the bequest in *Lemacks vs. Glover.*But the questions were not the same. It was not decided that the heirs of Sarah Hallen’s body took as purchasers, *because*the testator intended to create a new stock of inheritance in them. Hear Lord Ellenborough, who decided the cause. He said, “ all Sarah Hallen’s children were intended to take together, without regard to seniority of age or priority of birth; that must mean, that they should take as joint tenants.” This was all that was decided; and the above extract embraces, according to the report, every word that fell from his Lordship’s lips. The decision was, that the heirs of the body of Sarah Hallen took as purchasers, not because the testator intended to create in them a new stock of inheritance, but because he intended to give them an estate in joint tenancy, which was inconsistent with the devolution of the estate upon them, as tenants in tail.

The only other case quoted by the counsel for the defendant, in support of his construction of the deed, which I feel it incumbent upon me to notice, is that of *McLure*vs. *Young,*3 Kich. Eq. 659, decided by the Court of Errors. Though there was a division of the Court in that case, and I myself was among those who dissented, 1 aclmotvledge the authoritative force of the decision, in cases to which it may be regarded as a precedent. The testator, Jonathan Davenport, gave all his real *361estate to his daughter Catharine, for and during the term of her natural life; and at her death, he gave the same *absolutely and forever to her lineal descendants.*The decision of the Court was made to rest upon the ground that the testator, upon the death of his daughter Catharine, intended to adopt the provisions of the Act of 1791, as the rule for the distribution of his estate. It was the same (the Court ruled) as if he had said, on the death of Catharine, the estate shall- go, absolutely and for ever, to such -persons among her lineal descendants, as under the statute of distributions, would be entitled to take ; which, in the case that happened, was her only child, the defendant. Thus, according to the reasoning upon which the decision was founded, the testator had designated, on the death of Catharine, a person or class of persons, who must then, *if ever, be*in *esse,*and who, at that time, were to take an absolute estate. It was the same (reasoned the Court) as if Davenport had said in his will, I give the estate to Catharine, and on her death I give it to her child or children, to be equally divided among them, with the right of representation to the issue of deceased children, &c., the division to take place among them on the death of Catharine. It is obvious that this case is strikingly different from that before the Court, in all its main features, as well as in the reasoning by which it was decided. Certainly, the child of Catharine became a new stock, not taking his estate derivatively from his mother, but directly as a purchaser under the will. But that is equally the case in all limitations of estates, where the issue or heirs of the body take as purchasers, after a life estate in the ancestor. But that is not what is meant by the reasoning applicable to a case like that now before the Court. It is in a case where there *being no other*circumstances to show that the testator intended to use the words “ heirs of the body,” in another than the technical sense, the argument applies, that because the testator has given the estate to the heirs of the body of the first taker, and, not content with *this,*has again limited it to their heirs, &e., he therefore intended to create a new stock. And if he did intend to create a new stock, such new stock *362would of course take as purchasers. It is clear that the construction of Davenport’s will depended upon no such arguments as this.

The Chancellor who delivered the opinion of the Court, (quoting from the appeal decree in *Myers*vs. Anderson,) says, “all the authorities agree, that if the limitation be to the heirs of the body or issue, and *to their*heirs, this constitutes them purchasers, as it shows an intention to give them an estate not inheritable from the first taker, but an original estate, inheritable from themselves as a new stock.” This proposition is much too broadly laid down. It is true, when applied to cases involving personal estate, as in *Myers*vs. *Anderson.*But it is not correct when applied to real estate, where, as I have shown, the authorities are all the other way. It is not for me to say why the distinction has been drawn. But I take the law as I find it.

*Archer’s*case, 1 Co. 66, cannot be considered an authority or an example against this construction. There, lands were devised to one for life, and after his death, *“to his next heir male,*and the heirs male of the body of such next heir male.”

It was held by all the Judges, that the first taker had a life estate, with a contingent remainder to “the next heir male.” The testator was considered as having indicated an intention to use the words “ next heir male,” as a description of the person who was to take after the termination of the life estate — the superadded words of limitation converting the expression “ next heir male,” into words of purchase ; *“*an effect, however,” says Mr. Jarman, 2 vol. 236, “ which (as will be shown at large in the sequel) does not in general belong to such superadded expressions of this nature,” and the whole course of the English decisions is in conformity with Mr. Jarman’s text.

But to make the most of the general proposition above quoted, found in *Myers*vs. *Anderson,*it is simply this, that “ if the limitation *be to the heirs of the body,*or *to the issue, and to their heirs,*this constitutes them purchasers,” &c. But where is the authority for saying that such will be the result, if the *363limitation *be to the heirs general*of the first taker, *and their heirs*?” '

Before dismissing *McLure*vs. Young, I have one further remark to make. I do this with the view of showing the utter want of analogy between that case and this. In the former, the gift was to Catharine Davenport for life, and afterherdeath to her “ *lineal*descendants, absolutely and forever,” a phrase construed by the Court to be equivalent *to heirs of the*body, and evidently importing *issu)e ;*while, in the case before the Court, the estate is given to the plaintiff for life, and after her death, *to her right*heirs, *and their heirs and assigns.*There is a vast difference, I think. ;

I am of the opinion, that on the death of the husband, and the survivorship of the wife, the trustee stands seized for the use of the plaintiff, absolutely and in fee. The estate is conveyed “ to Dr. Henry Fuller and his heirs, in trust for the use of the said Dr. Henry Puller and his heirs, in trust, nevertheless,” for the uses and purposes which the deed proceeds to declare. This is a trust which is not executed by the statute of uses. 1 Cruise, Dig. 304; Lewin on Trusts, 102. It will therefore be necessary, in executing a conveyance, that Dr. Henry Fuller should join.

The judgment of the Court is, that there is no valid objection to the plaintiff’s title, so far as the sanie is derived from the deed of N. J. Danner.

It is the further judgment of the Court, that if the plaintiff can show, in other respects, a good and sufficient title to the premises, she is entitled to have a specific performance of the contract set out in her bill of complaint.

It is further ordered and decreed, that it be referred to one of the Masters, to report upon the title.

It is further ordered and decreed, that Dr. Henry Fuller, if the plaintiff’s title should be found good and sufficient, do join in a conveyance thereof to the defendant.

It is further ordered and decreed, that each party pay his and her own costs.

*364The defendant appealed, on the grounds:

1. Because “right heirs” may be “ *designatio personarum,”*or words of purchase as well as “ heirs of the body,” in grants or deeds, as well of real as of personal estate.

2. Because “ right heirs,” in this deed, should be taken as words of purchase, from the concurrence of ’these provisions : first, an express life estate to Mrs. Danner; next, a contingent remainder to her “right heirsand third, the addition of words, showing an intention to make the *“*right heirs ” a new stock of inheritance, or purchasers.

McCrady, for appellant,

cited *Archer's*case, 1 Co. 66; *King*vs. *Melting,*1 Vent. 214; *Lisle*vs. Gray, Jones 114, 2 Lev. 223 ; *Doe*vs. *Laming,*2 Bur. 1109 ; *Luddington*vs. *Kyme,*1 Ld. Raym. 203; *Lowe*vs. *Davies,*2 Id. 1561; *Dubber*vs. *Trollope,*Amb. 453; Harg. Tr. 489; *Jones*vs. *Morgan,*1 Bro. Ch. R. 208 ; *Dott*vs. *Cunnington,*1 Bay, 453 ; 3 T. R. 146; *Campbell*vs. *Wiggins,*Rice Eq. 10.

*Petigru,*contra,

cited 2 Fearne, 31, 32.

*Per Curiam.*

This Court concurs in the conclusion of the Chancellor. And it is ordered that his decree be affirmed, and the appeal dismissed.

Johnston, Dunkin, Dargan and Wardlaw, CC., concurring.

*Decree affirmed.*