#### *Christiana Hatcher vs. Lucinda Hatcher.*

1. "Where the plaintiff, being tenant for life, and the remainderman during his life time, «ntered into the following written agreement, “ that the said C. H. do agree to let E. H. build on the land willed to him by his father, at the death of the said C. H., the said C. H. do also agree that E. H. may open and malte all the improvements on said land that he thinksproper. The said E. H. do agree not to interrupt any thing that belongs to the said C. H. in person or property. If the saidE. H. should interrupt or suffer any ofhis family to interrupt any thing belonging to the said C.H., the saidE. H. do agree to pay the full value in cash or forfeit all tire improvements on said land.” It was *held,*that the plaintiff had not, by this agreement, surrendered to the remainderman her freehold for life. That this paper conveyed nothing more than a tenancy at will, or a lease to terminate upon reasonable notice, or a privilege during his life and peaceable behaviour.

2. The Court say, “ that in such anomalous agreements, we must look to the instrument itself for its own construction, as identical papers cannot be found already adjudged.”

*Before*O’Neall, J., *at*Edgefield, January, 1842.

This was an action of trespass to try titles. The plaintiff was the widow of John Hatcher, and the defendant was the widow of Edward Hatcher, a son of said John Hatch-er. The said John Hatcher devised the land in dispute to the plaintiff for life, and after her death to said Edward Hatcher in fee. The plaintiff and Edward Hatcher entered into the following agreement.

“ Memorandum of an agreement made and entered into this the twenty-seventh day of August, in the year one thousand eight hundred and thirty-three, between Christi-ana Hatcher, of the one part, and Edward Hatcher, of the other part, sheweth:

That the said Christiana Hatcher do agree to let Edward Hatcher build on the land willed to him by his father, at the death of the said Christiana Hatcher; the said C. Hatcher do also agree, that E. Hatcher may open and make all the improvements on said land that lie thinks proper.

The said Edward Hatcher do agree, not to interrupt any thing that belongs to the said C. Hatcher, in per,son or property: if the saidE. Hatcher should interrupt, or suffer any of his family to interrupt, any thing belonging to the said C. Hatcher, the saidE. Hatcher do agree to pay the full value in cash, or forfeit all the improvements on said land.

In witness whereof, we have hereunto set our signatures *430and affixed our seals, this the 27th day of August, in the year one thousand eight hundred and thirty-three.

C. Hatcher. [l. s.]

Edward Hatcher, [l. s.]

Witnesses, Alfred Hatcher,

William J. Turner.

The plaintiff proved (in addition to the trespass, location of the land, notice to quit, (fee.,) that Edward Hatch-er, in his life time, had greatly annoyed the plaintiff, by trespasses upon her negroes, horses, and other property ; but she failed to prove any demand of satisfaction in money for these trespasses. His Honor charged the jury, that the said agreement amounted to a release by the plaintiff" to Edward Hatcher, of her life estate, and that Edward Hatcher had not forfeited his interest under said agreement, without proof of his refusal to pay in cash for his trespass on plaintiff’s property. The jury, in pursuance of the charge, found a verdict for defendant.

The plaintiff appeals for a new trial, on account of error in the presiding Judge, on the grounds:

1. That, according to the just construction of said agreement, a tenancy at the will of plaintiff, was the only interest given to the said Edward Hatcher, which was terminated, as well by the acts of said Edward, as the notice given by plaintiff.

2. That all interest of Edward Hatcher, in the premises, was a personal privilege, which died with his person.

3. That said Edward Hatcher forfeited all interest under said agreement, by interrupting the plaintiff in the enjoyment of her property.

Wardlaw, for the motion. Griffin, contra.

*Curia, per*

Richardson, J.

The only question is, upon the proper construction of the agreement between Christi-ana and Edward Hatcher. Did she intend to surrender or release to him her estate for life, so as to make the re-mainderman, thereafter, the exclusive owner *1*That she intended by the agreement to give some estate, or privi*431
      *lege,*to Edward, is evident. But Mrs. Hatcher, being a freeholder during her own life, could, of course, make any lease, or give any less estate, tenancy, or privilege, without surrendering her freehold. In the contest for the one of the other of such estates, the court is to decide. And we are to bear in mind, that a freeholder for life, and one in fee simple, belong to the same class of estates. It is difficult to perceive in the agreement, that without any valuable consideration, or any reciprocal benefit, she intended to surrender her entire freehold, when so many less estates might have answered the purpose of her evident gratuity, and object of peace. If Edward had been any other than the remainderman, or a stranger, or Christiana the owner in fee simple, could we conclude that she had released her whole estate? If the freehold be given, why give him the expressed privilege to build and clear the lands ? If so given, why make him, in a certain event, forfeit his “ improvements” only, which would be useless to her, if he kept the land, and inconsistent with the character of a freehold estate in him ? Such a forfeiture would have been idle in that case; and therefore it presupposes the land still in her. ' In such anomalous agreements, we must look to the instrument for its own construction, as identical papers cannot be found already adjudged. In the instance before us, it may have been more than a tenancy at will; but assuredly, not more than a lease to terminate upon reasonable notice, or a privilege during his life and peaceable behaviour, Mrs. Hatcher reserving still her freehold.

A mere gratuity should be plain, and ought not to be. extended to its utmost latitude and by mere construction against the giver, when a less estate, and a very common one, may have been intended for the gift. Some mere lease or privilege must therefore have been the object of the agreement, and when Edward died, it passed away, and her life estate stood unimpaired by the agreement. The motion for a new trial is, therefore, granted.

Evans and Earle, JJ. concurred.

O’Neall, J.

I regret that I cannot take the view In this case which has been taken by a majority of *432my brethren. But were it not for the fact, that the report was prepared by counsel, and does not set out the reasons-of my judgment, I should not care to state *now the*reasons of my dissent. As it is, I think it right and proper, that I should state the grounds why I do not concur in the judgment just read.

An instrument like the one in this case, is to be fairly construed by reading all its parts together, as applied to the subject matter of which it treats. If there be any doubt, it is to be resolved against the grantor. Taking these rules as our guide, I think there can be little doubt that the grantor, Mrs. Hatcher, intended to surrender to the remain-derman so much of her life estate in the land, as he might enter upon and improve, under the condition that the estate thus surrendered might be resumed, if he (the remain-derman) should interrupt or suffer any of his family to in-rupt any thing belonging to the said C. Hatcher, and should fail to.pay the cash value of said interruption. If this be not the true interpretation, I would ask, why it was that the condition of forfeiture of the “ improvements” to be made by the said remainderman was inserted in the agreement *1*For, if it was only a tenancy at will, the grantor could enter, at any time after a notice of six months to quit at the end of the year. TJie condition of forfeiture shows that the tenant for life could not enteruntil the forfeiture was incurred, and hence the notion of a tenancy at will is at an end. It cannot be, that it conveys only an estate for the life of the remainderman, for his covenants are not only for himself, but for his family, and the forfeiture is of the only roofs which he had provided to cover his wife and children, after his own head had been covered by the clods of the valley. The general grant of the tenant for life is ta the remainderman to enter at once upon the land, build and make any “improvements that he thinks proper.” This was to ail intents and purposes a surrender of her life estate in so much of the land as he might build upon and improve. To say that his estate was defeated by his death is to visit loss upon a man by the act of God, and which had not been prescribed as a condition of forfeiture or termination by tne parties. Such a thing was never before heard of.

*433The only doubt which I ever entertained, was whether the agreement could operate, from its form, as a surrender. That, however, has been removed by *Smith vs. Mapleback,*1 T. R. 441. In that case Smith was the proprietor of the *“ Three Jolly Sailors, at*Rotherhite,” for a long term of years. He demised the premises to Swin, and Swin to Sellon. Smith afterwards applied to take the premises, and the following agreement, between Sellon and Anne Smith as the agent of her husband, was entered into, viz: “Agreement between Mr. Smith and Mr. Sellon for the *Three Jolly Sailors at Rotherhite,*Mr. Smith to have the house on the terms mentioned in the lease, and to pay £8 10s. over and above the rent annually, towards the good will already paid by Mr. Sellon.” It was adjudged, that this was a surrender, and that the plaintiff was in under his original term, and that it was not a lease from year to year. If that agreement was properly construed to imply a surrender, much more, it appears to me, ought *this*to be so construed.

Butler, J., signed neither opinion.