#### James Jackson, *ex dem.*Brockholst Livingston and others, Plaintiff in Error, *against*John Robins, Defendant in Error.

in 1771, *J.*fcTIfTertain 4red’ a'judgjTMTM1 Mhich onthoselands* In 1788, after the death of and s.,jtHe executors of *B,*brought o *scire*thelheinPand X^^whicbf htirs,°an5 not the terretenants, were summoned.

Judgment was obtained on the default, execution was issued, and the lands in question were sold and conveyed by the sheriff. *Held,*that if the proceedings were irregular, yet they were not void, but only voidable, and that after a lapse of more than thirty 3-ears from tne revival of the judgment, they could not be impeached m an action of ejectment brought by!the heir of *A.*against a person in possession under the sheriff’s sate.

Where *A.*devised lands in the county of *Ulster*to C. for life, remainder to the heirs of *A.*and there be:ng no actual occupant of the lands, a scire *Judas*was issued on a judgment recovered against *A*to the sheriff of *¡Yew-*York, on which the heirs, but not the devisee of *A.*were warned, and judgment was obtained thereon by default, it was held that/), not ha- ing appeared and pleaded to the *scire Jadas,*could not, afterwards, object that the tenant for life ought to have been summoned.

Where *A.*devises *fill kis real and personal estate to his*wife, *and in case of her death, without giving, fyc. by will, or otherwise selling or assigning the said estate,*then he devises the same to Ins daughter *J).*; A. takes the entire fee simple, both by force of the word *estate,*and of the absolute power given by the will, and the subsequent limitation, being repugnant thereto, is void, cither as a remainder, (which cannot be limited on afee,) or as an executory devise, to the validity of which it is essential that it cannot be defeated by any act of the first taker—the same rules apply whether the limitation is ot real or personal property; in either case, it is void. Where there is a devise for life, in express term;?, a power of disposal annexed, does not enlarge it to a fee; but where toa general devise, without any specification of the quantity of interest,* an absolute power of disposal is. annexed, the devisee takes a fee.

THIS was a writ of error to the Supreme Court. The material facts are stated in the report of the case in the court below, and also in the opinion delivered by the Chau cellor in this court. It is, therefore, unnecessary to repeat them in this place. For the facts and the opinion of the Supreme Court, *See*15 *Johns. Rep.*169. 172,

*Bunner*and J. Duer, for the plaintiff. 1

1. It is contended, , . , on the part of the plaintiff, that *Catharine Nelson,*one of the lessors of the plaintiff, has aright of entry under the will of her father, Lord *Stirling.*Under that will, the widow of the testator took an estate, either for life, or in fe.e : in the former case, the limitation to her daughter is valid as a remainder in the other, it is good as an executory devise. . *J*

*538Lady *Stirling*took an estate for life ; and the fee vested in her, neither by force of the word estate, employed by the testator, nor by the implication from the power of disposal granted to her by the will. The word *estate,*has no fixed meaning. Its construction must be governed by the intent of the testator ; and if the intent be clear not to give the fee, the ordinary acceptation and force of the term will be restricted It is obvious from the consideration that in no case were the heirs of Lady *Stirling,*as such, to take the fee, that the testator did not design it to pass; if Lady *Stirling*died without giving, selling, or assigning the estate, it was to go, not to her heirs, but to her daughter alone: if the daughter had died during the lifetime of her mother, and the mother had then died, without disposing of the property, the heirs of the daughter, and not those of the mother, would have taken, *(Vick*v. *Edwards, 3 P. Wms.*372. *Neale*v. *Power, Pollex.*54. *Goodright*v. *Searle,*2 Wils. 29. *Fearne Rem. Butl. ed.*364. 552.) Had the limitation over been to a stranger, the case might have been different; for had the stranger died, without heirs, during the lifetime of Lady *Stirling,*on her death, her heirs would have taken. But here the limitation being to a daughter, such a case could not possibly happen, since there could be no failure of heirs to the daughter, as long as there was any person *in esse*competent to take as heir of the mother. Suppose this testator, after devising to HIs wife, had added, *the said*estate, *however, is in no event to pass to her heirs, but in case of her death, without selling, 4>'C. then over.*Can it be doubted, that the effect of such an addition would be to restrain the devise to a life estate ? And if the intent of the testator, that the estate should not go to the heirs, appear from the will, by necessary and unavoidable implication, must not the same construction be adopted as if he had said so in express terms ? A relation subsisting between devisees may control the construction of limitations in a will. Thus, if lands be devised to *A.*and his heirs, and if he die without heirs, then to *B.*and his heirs ; here, if *B.*is a stranger, the limitation over is wholly void, either as a remainder, the preceding estate being afee; oras an executory devise, because the contingency of the failure of heirs is too remote. *539But if *B,*were himself a relation and collateral heir of *A.,*the construction would be totally different; for as then, *A.*cannot die without heirs, as long as *B.*or any of his heirs are in existence, the words, *dying without heirs,*are construed to mean, *dying without issue,*and the fee first given to *A.*is narrowed to an estate tail, the limitation upon which is valid, as a remainder in fee. *(Webb*v. *Herring, Cro. Jac.*415. *Barker*v *Thatcher,*3 *Lev.*70. *Nottingham*v. *Jennings,*1 *P. Wms.*23. *Fearne, Butl. ed.*466, 467. 2 *Saund.*388. *a. b.,*and cases there cited.) It by no means follows, that because the word *estate*is used in the limitation over, to signify a fee, its meaning must be the same in the devise to Lady *Stirling.*There can be no reason why the sáme word should not be differently construed in the same will, if such difference of construction be required by the intent of the testator.

It will be said, that a fee passed by implication from the absolute power of disposal given to Lady Stirling, It is admitted, that where lands are devised to a person with an absolute power of disposing of them, a fee usually passes. This construction, however, is always founded on the intent, and not on the necessary operation of the power. But when an intent to give a life estate merely, is manifest, either from express terms, or necessary inference, a different construction must take place. If Lady *Stirling*took a life estate, the limitation to her daughter is good as a remainder, and has vested by the happening of the contingency on which it depended; and it is no objection to its validity, that it might have been defeated by the power ■ granted to Lady *Stirling.*In *England,*limitations of this kind occur in almost every family settlement, in which the; settler creates in himself an estate for life, with remainders* over in tail or in fee, and reserves a power of revoking the1' uses of the settlement, and of appointing such new uses* as he may think proper, *(Digge's case,*1 *Rep.*164. *Fitzwilliam’s case,*6 *Rep.*32. *Fitzgerald*v. *Fauconberg,*3 *Bro. P.C.*543. *Moseley*v. *Moseley,*5 *Ves.*248. *Powell on Powers,*243, 244, 245., and cases there cited.) It is true,that in the cases just cited, the power was reserved by the grantor to himself, and here it was given to another; blit *540the difference is immaterial. Any power which the owner of an estate, on settling it, may reserve to himself, he may, suretyi on parting with it, confer upon another. (3 *Leon.*71. 4 *Leon.*41. 1 *Salik.*239. *Reed*v *Shergold,*10 *Ves.*270.) jn these cases, the power was annexed to an estate for life created by devises; they are also important authorities to prove that an estate for life is not converted into a fee, by the addition of "a general power of disposal.

If, however, Lady *Stirling*took the fee, the limitation over to Mrs. *Meilson*was void, asa remainder, but it was good as an executory devise. Though a fee cannot be limited upon a fee, by way of remainder, this may be accomplished by an executory devise, under the restriction, that the contingency on which it is to vest, must occur within a life or lives in being, and twenty-one years thereafter. *(Pells*v. Brown, Cro. *Jac.*590. 1 *Eq. Cas. Abr.*64. 186. 3 *Ch. Cas.*19. *Fearne's Ex. Dev. Powel's ed.*18.83. *Fearne, Butl. ed.*430. 431. n. a. 429. n. 1. *Long*v. *Blackall,*7 *Term Rep.*88.) The executory devise, in this case, closely conforms to the restriction ; and from the peculiar nature of the contingency upon which it is limited, did not operate to restrain the alienation of the estate fora single instant. Nor is it an objection to its validity, that it was liable to be defeated by an execution of the power. The rule certainly is, that an executory devise cannot be barred ; but it does not apply in this instance. The meaning of the rule is, that no act can be done by the first taker, to prevent the vesting of the subsequent estate, on the happening of the contingency- upon which it is limited. By an exercise of the power of disposal, the contingency would never have arisen; and the intention of the testator would not have been defeated; for he gives the power, and allows the exercise of it. If this objection be admitted, it will follow, that no executory devise can be good," wherever its vesting is dependent on the will of the first taker ; as where the contingency on which it is limited, is the performance or nonperformance of some act, by the first taker, resting entirely in his discretion. Yet the cases are numerous in which such limitations have been held valid. *(Fry*v. *Porter,*1 *Mod.*300. *Booth*v. *Booth,*1 *Ch. Cas.*109. *Pul*
      *541
      *ing*v. *Ready,*1 *Wils.*21. *Doe*v. *Clayton,*8 *East’s Rep.*141. *Perrin*v. *Lyon,*9 *East’s Rep.*140.,) The case of *Beachcroft and others*v. *Broome,*(4 Term Rep. 44l.,)is a decisive authority, and in no way distinguishable from the present, being the same almost in terms. There, the testator devised certain estates to his son C. and his heirs, and certain other estates to his son *F.*and his heirs, and if either of his sons should die without issue, or otherwise disposing of the estate devised, then to the survivor. C., by lease and release, conveyed a portion of the estate. The question which appears to have been submitted was, not whether the limitation over, but whether the power, was void. On both points, however, the court delivered a very clear and express opinion : 1st. That the limitation over was good as an executory devise, and would have taken effect, if the first limitation had failed; and, 2d. That the intent to create such a power was lawful, and that by the exercise of it, the limitation over was defeated. And this case is cited by Mr. *Powell,*in his edition of *Fearne, (Ex. Dev.*81. n.) as establishing the principle, that an estate may be so limited, by way of executory devise, as that its taking effect may depend on the act of the owner of the precedent fee.

Opposed to these authorities, are the cases of *Ide*v. *Ide,*(5 *Mass. Rep.*500.) and *Jackson*v. *Bull*(10 *Johns. Rep.*19.) But there is a distinction between these cases and the present; there the limitation over was to attach on such property as the first taker should *leave,*or die possessed *of;*and it was, consequently, subject to all charges and incumbrances which he might create ; but here, Lady *Stirling*could only dispose of the property by her own voluntary act; it was not chargeable with her debts, and she was, therefore, not the absolute owner of it. Had it been sold under a judgment against her, the conveyance would have been defeated by die happening oi the contingency, that is, her death, without selling or devising. *(Doe*v. *Carter,*8 *Term Rep.*57. *Doe*v. *Hawke,*2 *East’s Rep.*481.) But without having recourse to this distinction, can the decision in *Jackson*v. *Bull*be supported ? One ground on which that decision appears to be placed, is, that the limitation over was void, because it was liable to be defeated at the will of the first taker. This *542position has already been refuted. The cases cited prove the contrary. (See, also, *Fulmerston*v *Steward. Cro. Jac.*592. *Fearne's Ex. Dev Powells*ed. 18.) The rule is, indeed, laid down by Mr. *Fearne*in the broadest terms, that an executory devise *cannot be prevented or destroyed;*but it is obviously to be understood with this limitation, *provided the contingency, happen on which its vesting depends.*If the contingency does not happen, whether from the exercise of the will of the first taker, oran event which he could not control, in both cases, the right of the executory devisee is, equally defeated; not barred or destroyed, in the sense of the rule, but prevented from vesting, by the very means that the testator intended. The court, in *Jackson*v. *Bull,*also, rely on the ground, that the limitation was void, as repugnant to an absolute control over, or absolute ownership of the estate given to the first taker. The terms *absolute control,*and *absolute ownership,*although essentially different, áppear to be used by the court as synonymous, as meaning that unlimited power of alienation which was given to the first taker, and they considered the limitation over void, as being repugnant to that power. Indeed, the Chancellor, in *Jackson*v. Delaney, (13 *Johns. Rep,*552) in speaking off this very decision, says, that the limitation over was void, *as repugnant to the power to sell:*Yet the court has not explained, wherein that repugnancy consists; and in the absence of such explanation, it may be permitted respectfully to suggest, that no such repugnancy does in fact exist, and that the power and subsequent devise, so far from being contradictory, are in truth perfectly consistent. In what manner does the devise to Mrs. *Neilson*affect, limit, abridge, restrain, or, in any degree, control the exercise of the power previously vested in Lady *Stirling;*since, it is only in the event of the total failure of the mother to exercise the power, that the limitation in favour of the daughter is intended to take effect ? Conformably to the idea of repugnancy which the court seem to have entertained, no limitation, whether by remainder, or executory devise, can. be supported, where an unrestricted power is. given to the. particular tenant. The reasoning in *Jackson*v. *Bull,*is not •exclusively applicable to executory devises; it equally tends *543to show, that a remainder must, under similar circumstances, be void ; yet it has been proved, that the most unqualified and unlimited power may be annexed to the estate of a tenant for life, or in tail, by the exercise of which, the remainders over would be destroyed. Possibly, by the position, that the executory devise was void, as repugnant to the power to sell, they may have meant, merely, that it was repugnant, as inconsistent with the rule, that an executory devise cannot be defeated; and that thus understood, it was applicable not to remainders, but exclusively to executory devises. But it has been shown, that the devise in this case may be supported without infringing upon that rule, which, designed as it was to secure the complete execution of the intention of a testator, ought not to receive a construction by which it would be effectually defeated.

On an examination of the authorities to which the court refer, in *Jackson*v. Bull, as well as *Ide*v. *Ide,*it will be found that they give no aid to the doctrine which they were introduced to support. Those authorities are, *The Attorney General*v. *Hall,*(Fitzg. 314.) and *Flanders*v. *Clark,*(1 *Ves.*9.) It is to be observed, that these were cases solely of personal property ; that they neither deny or question the principle now contended for, in regard to real property; and were decided upon reasons drawn from the peculiar nature of the one species of property, which are in no wise applicable to the other. It is a rule of the common law, that there can be no remainder of a chattel interest. A gift or bequest of a chattel, for any period of time, however short, is held to pass the whole interest, and any subsequent limitation is void. There appears to have been a distinction between a bequest of the use of a chattel, and of the chattel itself, and that when the use only was given, a devise o.ver seems to have been considered as good. This distinction,. however, the courts of equity have long since exploded, and it- is. now settled-, that there is no difference between a bequest of the use, and of the chattel; for whatever may be the terms employed, they will be controlled by the intent of the testator, and if necessary to give effect to his intent, the use only will be construed to pass. *(Wildon*v. *Elkington,Plowd. 52*1. *Dyer*7. a. n. *Co. Litt,*20. a. n. *Hyde*
      *544v. *Parratt,*1 *P. Wms.*1. *Tissen*v. *Tissen,*1 *P. Wms.*500. *Fearne on Rem. Butl.*ed. 401. 408. 416. n. 1.) Still, however, the rule of the common law, although it may seem to have been evaded, in fact remains to this day unaltered; for wherever it clearly appears to be the intention of a testator, that the first taker of -personal property shall not merely havq a usufructuary interest, for life, or other limited period, but a right of property in the chattel itself, the rule then applies, and avoids all subsequent limitations. Upon this principle were the cases of *The Attorney General v.'Hall,*and *Flanders*v. *Clark,*decided. There, the court found it impossible to support the devise over, by holding, that the first taker had merely a usufructuary interest for life, because the power of spending and consuming the whole of the property was plainly given. By pursuing the subject further, it will be apparent, that there is no possible analogy between limitations of personal and of real estate.

The first taker of personal property which is devised over, is entitled merely to the use and enjoyment of it. He is not the legal owner, but a bare *cestui que trust:*in many cases he cannot even part with the possession, nor can it be taken from him by creditors. If the bequest be of a sum of money, the first taker is not entitled to the principal, but only to the interest: if household furniture, plate, or the like, a court of equity will compel him to file an inventory of the articles upon oath, and when danger is apprehended, to give = security that they shall be forth-coming at his decease. Limitations of personal chattels are so purely equitable, thaL they can only be enforced by the power of the Chancellor. *(Vachel v. Vachel,*1 *Ch. Cas,*129. *Catchmay*v. *Nicholls,*and *Shirley*v. *Ferrers,*1 *P. Wms.*6. n. *Hyde v. Parratt,*1 *P. Wms.*1. Lord *Foley*v. *Burnell, Cowp.*435. n. Lady *Arundell*v. *Phipps*Taunton, 10 *Ves.*139. *Cadogan*v. Kennett, *Cowp.*432. *Lockyer*V. *Savage, Str.*946. *Fearne on Rem. Butl,*ed. 407—415.) On the other hand, the first devisee of real estate, limited over by way of executory devise, (unless the interest of the testator is merely equitable, or he creates a trust in express terms,) takes the legal estate, and not a mere usufructuary interest. He is not a *cestui que trust,*but the actual owner, He may dispose of *545his estate in any way consistently with the nature and extent of his interest. *(Hyde*v. *Lyon,*3 *Leon.*64. *Pells*v. *Brown, Cro. Jac.*590. *Hanbury*v. *Cockerill,*1 *Roll. Abr.*334. 1 *Salk.*229. *Fearne on Rem. Butl.*ed. 384. n. 399. *et seq.)*The following rules, relative to limitations of personal property, are deducible from the authorities: 1st. That the same words which create an estate tail in realty, pass the whole interest in a chattel, and then all limitations over are void; 2d. That a power to. sell, annexed to a grant or bequest of a chattel, for life, makes the gift absolute, and renders void an ulterior devise; and, 3d. That the ownership or right of property in a chattel, being once givénj there can be no limitation over. *(Fearne’s Exec Dev. Powell’s*ed. 167. and cases there cited.) Now, if these rules are to be applied to limitations of real estate, it will follow, that no remainder after an estate tail can be valid: that a power to sell, annexed to an estate for life, converts it into an absolute fee, and destroys the remainder over; and that a fee cannot be limited on a fee, even by way of executory devise. Yet, although there have been repeated decisions in *England, (Wynne*v. *Hawkins,*1 *Bro. Ch. Rep.*179. *Pushman*v. *Filliter,*3 *Ves. 7. Fearne’s Exec. Dev. Powell’s*ed. 226. n.) that a power to sell renders a gift of personal property absolute, there is not a single case to be found in the *English*books, in which that doctrine has been extended to limitations of real estate. In the only case on the subject which occurs, Lord *Kenyon,*a great master of the law of real property, held, without any hesitation, that the executory devise was good, and considered the question too plain to admit of argument or doubt.

But conceding, for a moment, that the authority of the case of *Jackson*v. *Bull,*cannot be shaken, and that when a power to sell is annexed to an estate for life, the limitation over is valid as a remainder, but that when the same power is annexed to a fee, the ulterior disposition is void as an executory devise; such a distinction, if it existed, would afford an unanswerable argument in favour of adopting the construction of Lord *Stirling’s*will, contended for on the part of the plaintiff; that is, that Lady *Stirling*took only an estate for life: for, it would then follow, that by no other construction, the intent of the testator could be carried into *546effect: and it is a primary principle, that the court, whenever the intent is clear and lawful, will give it effect, in whatever terms ^ may be expressed- (4 *Ves.*412. 3 *P.*Wms. 260., *Jones*v. *Morgan, Fearne on Rem. Bull,*ed Appendix, 589.) The intent of the testator, in the present case, is clear and unambiguous, and it may obviously be effectuated by giving to Lady *Stirling*an estate for life, with povt er to sell and devise, and the remainder to her daughter. The use, as has been already suggested, which the testator has made of the’ word estate, forms no objection. This word does not necessarily import a fee ; it is only in a will that it admits of such interpretation, and its meaning is to be controlled, enlarged, or restrained, by the intention of the testator, as collected from the whole of the will. *(Countess of Bridgwater*v. *Duke of*Bolton, *Salk,*236. S. C. 6 *Mod.*106. *Doe*v. *Chapman,*1 H. *Bl, Rep.*223. *Timewell*v. Perkins, 2 *Atk.*102. *Wilton*v. *Kenworthy,*3 *East’s Rep.*553. *Woolam*v. *Kenworthy,*9 *Ves.*137,) But let it be supposed that Lord *Stirling*bad, in express words, given the fee to his wife, even then it. would be the duty of the court to cut down the fee into a life estate, in order to support the limitation over, and effectuate the general intent of the testator. Technical words, it is .true, are commonly to be understood in a legal sense; yet where the intent is manifest, it will even control and overrule the technical sense and legal operation of the terms employed, (2 *P. Wms.*741. *Doug.*341. 4 *Ves.*51.) and even the very same words will be construed to pass the different, estates, to suit the difference of intention of the testator. (Pi*erson*v.. *Vickers,*5 *East’s Rep.*549; *Doe*v. *Goff, 11 East’s Rep.*668.) So anxious, indeed, are courts of justice to effectuate the wishes of a testator, that the existence' of a precedent estate is frequently implied, when such implication is necessary, in order to support the limitation over. *(Jones*v. *Morgan, Fearne on Rem. Butl.*ed. Appendix, 577. *Hackley*v. *Mawley,*1 *Ves.*jun. 143.) To state a hypothetical case : A devise of lands to *A.*and his heirs, and in case of his death, without selling or devising, &c. then that the lands should not pass to his heirs, but should vest in *B.*It cannot be doubted but that this last clause would control the preceding limitation, and change , the fee before given, into an estate foe life. It is well settled, that.when there are *547two repugnant clauses in a will, the last shall prevail, as being most indicative of the intent. *Quum duo inter se*re*pugnantia reperiuntur in testamento, ultimum ratum est. (Co. Litt.*112. b. 2 *Taunt.*112. 6 *Fes.*100. 5 *Ves.*243.) The case just supposed is the very case before the court. It is true that the testator has not said, in so many words, that the estate devised to his wife should not descend to her heirs, but his intent is as clear as if he had prohibited the descent by express words, since the devise over to his daughter, of necessity excludes it. It may be asked, why the court, in *Jackson*v. *Bull,*in order to support the ulterior devise, did not resort to the construction of giving the first taker an estate for life only. The answer to that objection will fortify the argument which has just been urged. In *Jackson*v. *Bull,*the devise was to *A.*and his heirs, and if he should die without issue, &c. then to *B.*The testator did not intend that *B.*should take, Until the failure of the issue of *A.*If it had been held, for the purpose of supporting the remainder, that *A.*took only a life estate, the intent would have been defeated, and the children of *A.*the principal objects of the testator’s bounty, could not have taken at all. To conclude this branch of the argument, if the decision in *Jackson*v. *Bull*is to be confirmed, the court will feel itself compelled to determine, that Lady Stirling, under the will of her husband, took only an estate for life, with power to sell or devise, and that the limitation to *Catharine Neilson*is, therefore, valid, as a remainder, and has vested by the death of Lady *Stirling,*without an execution of the' power.

2. The sale and conveyance made by the sheriff of *Ulster,*are absolutely void. It is admitted, that the title of a purchaser without notice, is not affected by irregularity in the judgment or process; and it is admitted, for the purpose of the present argument, that the judgment against the heirs was valid and binding; but it is insisted, that it did not affect the premises in question, and that the sheriff had no right or power to sell them. The sale, therefore, being made without authority, was void. It might be inferred from the observations of the Chancellor, in *Jackson*v. *Delancy,*(13 *Johns. Rep,*550.) that the judgment on the *scire facias*
      *548was general; that the plaintiffs should have execution against" all the lands and tenements of which Lord *Stirling*had been seised; but such was not the fact.. The terms of the judgment were, *that the plaintiffs have execution against all the lands and tenements whereof*Lord *Stirling was seised, <&C‘ being in the hands and possession of his heirs, Mary Walts and Catharine Duer.*The execution was in conformity *to*the judgment, and directed the sheriff to levy on lands in the possession of the heirs, and those only. Here the heirs took nothing by descent; the premises in question were not in their hands and possession, but in the actual possession of Lady *Stirling,*the devisee. The plaintiff, therefore, is not concerned to dispute the authority of the cases cited by the Chancellor, in *Jackson*v. *Delaney.*In all those cases, the lands sold were bound, or directed to be sold by the irregular judgment or decree; and the sheriff, or master, in making the sale, pursued the terms of his authority. The purchaser, to use the words of Lord *Redesdale,*(2 *Sch.*«S' *Lef.*57Í.) “ has a right to presume, that the judgment or decree is correct; but he is bound to see, that *the proper parties are before the court,*and that his title cannot be impeached aliundeHe is, *a fortiori,*bound to know, that the officer selling has a lawful authority, and that the judgment or decree, under which he professes to act, is a lien on the land. But the question here is, whether, when a judgment is revived by *scire facias*against one terre-tenant, and execution is awarded against the lands in his possession, lands in possession of other terre-tenants, not parties to the *scire facias,*can be sold ? Or in other'words, whether the land of *A.*can be sold under an execution against *B. ?*Surely, it is not too much to say, that the sale would be absolutely void. And in this view of the case, it was unnecessary that the proceedings on the *scire facias*should have been vacated, and there was no negligence on the part of the lessors of the plaintiff, in not applying to the court for that purpose. ’

It will be said, that if an execution had issued on the judgment against Lord *Stirling,*without any revival, the pro-ceding would have been the same, as respects the rights of. Lady *Stirling,*as a *scire facias,*to which she was not a party, *549and yet the purchaser would he protected. It is well settled, that an execution issued against the original defendant, after the year and day, without revival,is voidable only; but this principle has never been extended to an execution issued after the death of the defendant. If the sheriff, under a/. *fa.*in the usual form, tested and delivered to him after the death of the defendant, were to levy upon, and sell goods which had belonged to the defendant, now in the possession of his executors or legatees, it would, it is conceived, be a trespass, for which the writ would be no justification ; for this plain reason, that by the death of the defendant, the property is changed, (Dyer, 79. b.) Then, if void as against the goods and chattels, it must also be void as to lands and tenements. It is submitted, whether an execution on the original judgment, against the lands and tenements only, of the debtor, omitting the goods and chattels, would not be a nullity, as the form of the writ is expressly prescribed by statute. Then, if the clause as to the goods and chattels be rendered void by circumstances, must not the effect on the whole writ be precisely the same ? Admitting, however, that the irregular execution, in the cases which have been supposed, would protect the officer and purchaser; this can only be on the ground, that the officer acted in obedience to the writ, and that the purchaser had a right to presume its regularity. Yet if a sheriff, without any execution, levy upon lands bound by a judgment, and sell them, no title can. pass to a purchaser, however ignorant of the want of authority. Such in reality is the present case. The sheriff, at the time of the sale, had no execution against the premises in question; since there can be no difference between an execution not affecting the lands, and no execution at all.

The objection to the plaintiff’s recovery arising from the supposed acquiescence of the devisees of Lord *Stirling*proceeds on the ground, that the plaintiff seeks to avoid the defendant’s title for irregularity merely. It is conceded, that after a length of time, the court will refuse its aid to set aside an irregular proceeding, and thus a title, originally defective, may become unimpeachable by the acquiescence or neglect of the parties interested to defeat it. But mere neglect, or acquiescence, cannot give strength to a title origt*550nally void, unless continued for so long a period as to create a bar by adverse possession. The claimant does not require the aid of the court to clear the way for- him, but his title is perfect at once. In this case, an adverse possession did not commence until 1794, so that, at the time of Lady *Stirling’s*death, the period of limitation had not expired as to her; and the statute has not yet begun to run as against Mrs. *Neil-son.*Had Lady *Stirling*brought an action of ejectment, no defencé could have been made to her claim. If the sale and conveyance were void, as to her, upon what grounds, can it be said, that they are valid against the present claimants *1*'1 '

The opposite party, as to this point, rest their defence upon the following positions : 1. That a *scire*facias, against the heirs, is a general revival of the judgment against all the lands and tenements of She ancestor, upon which the judgment was a lien : 3. That the heirs having suffered judgment to pass, by default, on the *scire facias,*are estopped from saying, that they were terre-tenants when the judgment, was rendered : 3. That the future executory interest of Mrs. *Neilson-t*in the lands, was bound by the execution, and passed by the sheriff "s conveyance. 1. The first position is not only unsupported, but is contradicted by all the precedents and authorities. A *scire facias*is a notice to show cause, either why the plaintiff should not have execution generally, on a judgment before given, or an execution of a particular nature and description. The form and prayer of the writ, therefore, (and, consequently, the judgment rendered,) necessarily vary according to the character and situation of the parties to whom it is addressed. If it be brought against the original defendant, the prayer is, general, *to have execution,*and by the judgment the plaintiff" is repossessed of all his original remedies. If the defendant he dead, an execution may be prayed, either against his personal estate, or his lands and tenements, at the election of the plaintiff. In the first case, the *scire facias*is directed to the executors or administrators only; in the other, it must he directed to all who are in possession of the lands; all who, in the legal sense, are terre-tenants, for execution can be . awarded against the lands of those only who are summoned *551or returned. The heir himself, although usually summoned, *eo*nomine, is liable as terre-tenant only ; that is, execution pan only be awarded against the lands of the ancestor, of which he is in possession. (3 *Co.*Rep. 12, *Cro. Car.*296. 312. *Jones,*87. *2 Saund.*7. n. 4.) If the heir be not summoned, that fact may be pleaded by the other terretenants, and the judgment will be stayed until the heir is warned ; not only because the heir may have a special defence, of which the terre-tenants are ignorant, but because the lands of the ancestor in his possession, ought first to be charged. (2 *Saund.*8. n. 8. 72. p. Lord *Raym.*1255. *Salk,*598.) But the heir is not a necessary party, for if he" have no lands to be charged, the writ may proceed agains! the terre-tenants without him. *(F. N.B.*517. 2 *Saund,.*7. n. 4.) The heir cannot plead that he has been summoned as terrelenant only, and not as heir, for it is only as terre-tenant that he is liable. *(Cro.*Eliz, 896.) The tenants summoned may plead, that there are other terre-tenants not warned, and-that they ought not to be compelled to answer, until the others are brought into court. (2 *Fern.*105. *Cro. Eliz,*506. Lord *Raym.*1255. 2 *Saund.*8. n. 10.) In *Adams*v. *Terre-tenants of Savage,*(Lord *Raym.*1255.) the reason for allowing this plea is given by *Powell,*J., and it is very material: *“*because execution ought to be awarded against ail the terre-tenants equally, which cannot be done, until all of them are returned warned, and brought before the court.” The judgment on the *scire facias*varies according to the nature of the writ, or of the return made by the sheriff. If the sheriff returns that certain persons are tenants of all the lands of which the debtor was seised, &c. the judgment is, that the plaintiff have ex- ■ ecution against all such lands, in the possession of the persons named. If the persons summoned are returned as tenants of particular lands, the award of execution is against the lands so described; but by the invariable form of the judgment, the award of execution is confined to lands in the possession of those who have been warned by the sheriff, or are returned by him as tenants. *(Co. Ent.*622. *Thes. Brev.*96. 269. 288. *IÁU. Ent.*385» et *seq,)*2. There is no estoppel, Strictly speaking, an estoppel can never *552arise on a record, unless the fact sought to he contradicted, appear affirmatively. (Co. *Lilt.*352. a.) The fact that Mrs. *Neilson*was a terre-tenant does not appear on the record. The sheriff of *New- York,*to whom the *scire facias*was directed, returns that she was warned as heir; but he neither did, or could return that she was terre-tenant of lands in a different county. A party who has never had due notice of the péndency of the proceedings against him, is never estopped from impeaching the judgment. *(Phelps*v. *Holker,*1 *Dallas,*261. 5 *Johns. Rep.*41. *Robinson*v. *Ex’rs. of*Ward, 8 *Johns. Rep.*86. *Fenton*v. Garlick, 8 *Johns. Rep.*194. *Buchanan*v. *Rucker, 9 East’s Rep.*192.) Nor is any estoppel implied from the circumstances that the heirs did not appear and plead, that they had no lands in their possession, it is not denied, that a defendant cannot, after judgment, take advantage of a defence which might have been pleaded. *(Earle*v. *Hinton, Str. 772.)*But here, what had the heirs to plead ? They might, indeed, have pleaded payment, or a release, or other matter in discharge of the original judgment; and if they were bound to appear, they are concluded from showing that the judgment was not then a subsisting incumbrance. Yet they could not have pleaded that they were not terretenants, and had no lands, &c. of their ancestor in their possession. It is clear from the authorities, that such a general plea of non tenure, would have been bad on demurrer. (3 *Lev.*105. *Cro. Eliz,*872. *Salk.*601. *Com. Dig. Pleader,*3. L. 11.) The case in *Croke*gives the reason why the plea is bad. It is, because the plaintiff has a right to take a general judgment (that is, a judgment not specifying the lands to be charged) at his peril, which must mean at the peril of showing, that the lands against which he may direct his execution, are lands of the ancestor, of which the heirs, or other persons summoned, are the terre-tenants. The case of *Gilburn*v. *Rack,*(2 *Sid.*12. 1 *Lev.*41. ‘ S. C. cited Lord *Raym.*590.) will be greatly relied on by the defendant. That case appears to have been an action of ejectment. The plaintiff gave in evidence a judgment upon a *scire facias,*an *elegit*issued thereon, and an extent of the lands; and on this extent the suit was founded. The defendant offered to prove that he was tenant in tail of *553the lands, and, therefore, that they were not liable to an execution on a judgment against his ancestor; and it was held* that he was estopped from giving this evidence, because he might have pleaded it in bar to the *scire facias.*It is manifest, from the several reports of this case, that the defendant had been specially warned, and returned as tenant in fee, of the very lands in question : and having been thus expressly called on to show his title, and assert his right, he was properly held to be concluded by his neglect. Unless the case be thus understood, or if it is to be supposed that the heir was only summoned generally, the injustice and absurdity of the decision would be most revolting; for it would then follow, that all lands in the possession of the heir are liable to an execution for the debts of the ancestor, although not derived from him, but held by an independent title. 3. As to the position, that the future interest of Mrs, *Neilson*was bound by the execution, and passed by the sheriff’s sale and conveyance. It is clear, that although a future interest in land may be bound by a judgment, it is not the subject of an execution, more especially, when the execution, by its very terms, is confined to lands in the actual possession of the party against whom it is issued. The heir, when sued on the bond of his ancestor, may plead that he has only a réversion expectant on an estate for life; and although on such a plea, judgment will be given of assets *quando acciderint,*yet execution must be stayed until the life estate is determined, and the reversion of the heir is vested in possession. *{Dyer, 373. b. Carth.*129. Lord *Raym.*783. 2 *Saund. 7.*n. 4.) A, *scire facias,*then, will not lie until the expiration of the life estate. It may be said, that the heir when warned on a *scire facias,*ought equally to plead that he has only a future interest in the lands of his ancestor. But the distinction is plain : first, the object of the suit against the heir, on the bond of his ancestor, is not merely to have execution, but to obtain a judgment that may be a lien upon the land: and secondly, before the alteration of the law by statute, it was necessary for the heir, by pleading, to show the nature of his estate, since, by suffering a judgment by default, he rendered himself personally liable. Neither of these reasons apply to a-proceeding against the heir by *scire facias.*
      *554The object of the *scire facias*is, not to obtain a judgment which may bind the lands, for they are already bound by the ^ortner judgment, but merely to have execution ; and the heir incurs no risk by suffering a judgment, since execution can only issue against the lands in his possession. Thus, it is not denied but that the original judgment against Lord *Stirling,*may still be a lien on the premises in question. The object of this suit is, not to exonerate the lands from that lien, but to ascertain whether it has been properly enforced or applied.

3. The right of entry of Mrs. *Neilson*is not barred by adverse possession. It is a point admitting of no doubt, that the right of entry of a person entitled in remainder, or as executory devisee, is not barred or affected by an adverse possession during, the continuance of the precedent particular estate. *(Jackson*v. *Schoonmaker,*4 *Johns. Rep.*390. *Taylor*v. *Horde, Burr. Rep.*60. S. C. *Cowp.*689. *Salk.*422. *Doe*v. *Danvers,*7 *East’s Rep.*299.) Mrs. *Neilson*being, at the time of the death of her mother, and still continuing under coverture, the operation of the statute, as regards her, has not yet even commenced. And her right of entry has not been tolled by a descent cast. A descent cast only tolls the entry, in cases of actual disseisin : but the grantee of *Taylor*entered peaceably, and under colour of title. Besides, the right of a person having a mere right of entry, such as a devisee, is never affected by a descent cast. (Co. *Litt.*240. b. *Doe*v. *Danvers,*7 *East’s Rep.*319. 321.)

To conclude: It will be said that the questions arising in this cause, havé been already decided by this court in *Jackson*v. *Delaney,*and that the decision then made ought to be regarded as final and conclusive. But it is not correct, that these questions were decided in that case. It is true, that they were presented on the part of the plaintiff, and that the Chancellor, in delivering the judgment of the'court, expressed an opinion in relation to them. The discussion of them, however, was not necessary for the decision of the cause, and the decision of the Chancellor must, so far, be regarded as extrajudicial.

*555
      *S. Jones,*Jun. and *Van Burén,*(Attorney General,) pontra.

The present case must be considered as having been decided by this court, in their judgment in *Jackson*v. *De Lancy.*(13 *Johns. Rep.*537.) The point there arose, and was settled, that the supposed irregularity in the *scire facias,*did not render void the title of a purchaser under the execution. The regularity of the proceedings could not be questioned collaterally; and after the length of time which had been suffered to elapse, a direct application for setting them aside, would not be entertained. If this court, therefore, is to adhere to the uniform practice of other courts of the last resort, and not suffer the rule which it has once laid down, to be- contradicted or evaded, the necessity of answering the arguments of the plaintiff’s counsel is obviated. But it is unnecessary for the defendant to resort to so rigorous a doctrine : admitting that the entire field of controversy is still open, he cannot but feel the highest confidence in the validity of his defence.

1. Lady *Stirling*took the entire fee simple, both by forep of the word *estate,*and of the absolute power of disposal given to her by the devise. Wills and testaments are to receive a benign interpretation; and if the intent of the party to transfer a fee be apparent, that intent will be carried into effect, notwithstanding the omission of the word *heirs,*which are the only words that can be employed for that purpose in a grant; for wills must be frequently made in haste, and when it is impossible to obtain' the advice of counsel; and, therefore, the law does not subject them to the same rigid rules as those conveyances which admit of greater caution and deliberation. (2 *Bac. Abr.*536. 1 *Roll. Abr.*834. pi. 4, 5, 6. 9, 10. *Co. Lilt.*9. b.) A devise of all a man’s estate, even when connected with words of local description, as all his estate in *A.,*carries the fee to the devisee. *(Countess of Bridgwater*v. *Duke of Bolton, Salk.*236. S. C. 6 *Mod.*106. *Roll. Abr.*834. pi. 12. 14. *Roe, ex dem. Child,*v. *Wright,*7 *EasPs Rep.*259. *Gilb. on*Dev. 25.) The word *estate*is the most general word that can be used. For, so far from its being necessary to add words of inheritance, in order to make it pass a fee, words of restraint must be added, in order to carry a less estate ; for it *556IS *ms generalissimum. (Holdfast, ex dem. Cowper,*v. *Marten, and another,*1 *Term Rep.*411. 414. *Butter,*J. *ibid.)*So, the word *estates*is equivalent to estate, unless other words be added to express a different intention. *(Fletcher*v. *Smiton,*2 *Term Rep.*656.) *Estate*comprehends not only the land or property which a man has, but also the interest he has in it; *(Cowp.*355. 659.) and, indeed, it has been said, that it signifies the interest, rather than the subject. (2 *P. Wms.*524.) In *Lambert's Lessee*v. *Paine,*(3 *Crunch,*97.) the testator devised *all the estate catted M., lying in fyc. containing, S/c., and likewise one other tract called Hg, containing 8rc.; also one other tract containing, fyc., calBd-P.:*Yet it was held that the fee in *the estate catted*M.,'passed to the devisee, notwithstanding it was immediately coupled with other devises, the-terms used in which, were sufficent only to convey a life estate. Mr. J. *Johnson,*in that case, observes, “ the word estate, in testamentary cases, is sufficiently descriptive both of the subject and the interest existing in it. It is unquestionably true, that its meaning may be restricted by circumstances or expressions indicative of its being used in a limited or particular sense, so as to confine it to the subject alone; but certainly, in its general use, it is understood to apply more pertinently to the interest in the subject.’’ *“*It cannot be questioned,” says Mr. J. *Patterson,*“ that the word *estate*will carry every thing, both the land and the interest in it, unless it be restrained by particular expressions; for estate is *genus ge~ neralissinum,*and comprehends both the land and the inheritance. The word *estate*is the most general, significant, and operative, that can be used in a will, and according to all the cases, may embrace every degree and species of interest. When no words are made use of to manifest the intention of the testator, that the term *estate,*should be taken, not in a general, but in a limited signification, then it will pass a fee ; because, the law declares, that it designates and comprehends both the subject and the interest.” And Mr. J. *Washington,*who dissented from the construction given by the court to the will in that case, acquiesces, however, in the general rule upon the subject. The following authorities are all express to the same point. *(Roe, ex*dem. *Urry,*
      *557v. *Harvey, Burr. Rep,*2638. *Willes,*296. n. a, Doug, 434. 763. *Cowp.*206. 4 *Bac. Mr.*253 ) The word *es-*_ . . . i-i* ,i , , *tate,*then, is equivalent to *heirs,*and in this case, the testator both intended, and actually did give a fee to the first devisee. He expressly gave her a fee, with an absolute power to dispose of the property, and, consequently, the executory devise, which was thus liable tobe defeated, which wanted the primary characteristic of that species of contingent interest, its inviolability by any act of the first taker, must be void. A fee cannot be limited upon a fee* on the contingency of the first taker’s not disposing of the land. Lord *Stirling*had no intention to give his wife merely a life es- . tate, with a power to sell, but he intended to vest her with all the interest which he himself possessed. The word *estate*is applied by the testator to both his real and personal property; he surely did not design, that the latter should be for life merely. According to the plaintiff’s construction of the will, the fee simple, which is expressly given, must be cut down to a freehold for life, to support the remainder over, by implication; and thus, the inheritable force of the word *estate,*(and the like principle, if at all admissible, must have applied, even had the word *heirs*been used,) must be destroyed. Such a doctrine cannot be correct. Words of inheritance may, indeed, be qualified, but they cannot be devested of all their efficacy.

Again ; a fee simple passed by the power of disposing of the estate, which the testator conferred upon the first devisee. That a power of this kind carries the entire fee, is not a principle introduced into the law in modern times; it was well established in the time of *Coke,*who adduces several other instances which show what regard was paid, even in those days of rigid law, to the intent of a testator. Thus, if a man devise 20 acres to another, and that he shall pay to his executors for the same, ten pounds, the devisee takes a fee simple. So, if he devise lands *in perpctuum,*or *to give and to sell,*or in *feodo simplici,*or to the devisee and his assigns for ever, or to a man *et sanguini suo,*the fee simple passes, by the intent of the devisor. (Co. *Litt.*9. b. 1 *Roll. Mr.*834. pi. 5—10. *Cruisers Dig.*Devise, ch. 11. s. 11, 12.) So, where a person devised lands to his wife, to dispose and *558employ them on her, and his son, at her will and pleasure, it was held, that she took an estate in fee. *(Moore,*57.) So, where a person devised certain houses to *M. T.for her own use, to give away at her death to whom she pleases,*it was held, by Lord *hlardwicke,*that *M. T,*took the fee. *(Timewell*v. *Perkins,*2 *Aik.*.102.) The two authorities last cited, are relied upon in the decision of the Supreme Court, in *Jackson, ex dem. Bush and wfe,v. Coleman,*(2 *Johns. Rep.*391.) in which the case of *Whiskonv. Clayton,*(1 *Leon.*256.) is, also, quoted as in point. In that case, *C:*devised an estate to his godson, after the death of his wife, and if he failed, then he willed all his part to the *disposition of his father;*it was held, that the father took a fee, and that to will my lands *at the disposition of B., or to will my lands to B., to give and sell at his pleasure,*carried a fee ; and that there was no difference where the devise was, *that B. should do with the land at his discretion,*and the devise thereof to *B., to do with it at his discretion.*In all these cases, the testator used words, which, *per*-se, unconnected with the absolute power of disposal, would give only a life estate; but by being connected with a power of disposal, their signification was enlarged, so as to pass a fee. In making this construction, no violence was done to the intention of the testator; he devises his house or his land, without using any of the peculiar terms of inheritance, such as *heirs, estate*or *interest;*the context must then be resorted to, to supply the omission, and it is discovered, from an examination of the context, that any smaller interest than a fee, would be inconsistent with the other provisions of the will; and it is only where the want of words of inheritance cannot be supplied by the manifest intent of the testator, as collected from other parts of the will, or the estate of the first devisee is restricted to an estate for life, by express words of limitation, that he will be construed to take an estate less than a fee. Under this view of the subject, there is no discrepancy between the authorities. A power to give or sell, coupled with a bare, unqualified devise of the land, creates an estate in fee simple; yet, if the estate were devised to a person expressly for life, with a power of disposal, the devisee would only take an estate for life, with a naked power to give the reversion. *(Cruisers Dig.*Devise, ch. 11. s. 16. *559c. 13. s. 6.) This distinction was fully recognized in Jack*son*v. *Coleman,*where, as in the present case, the first devise contained words of inheritance. The testator gave to his wife *the use of all his real estate, to use and dispose of at her pleasure,*and after her death he gave the one third to his daughter *S.,*in fee, *and the other two thirds were to be disposed of, at the pleasure of his wife, after the death of his grandson D.*This, the Chief Justice says, in delivering the opinion of the court, amounted to a devise in fee to his wife. It is to be distinguished, he observes, from the case of a mere power, for, here, the estate was, in the first instance, devised *to the wife.*Cases of mere powers, super-added to an express estate for life, can, therefore, have no application; yet such are the description of cases, all proceeding upon the distinction just noticed, by which it is attempted to narrow down the devise *to*Lady *Stirling.*Such was the anonymous case in 3 *Leon. 71.*and 4 *Leon.*41. cited by the plaintiff’s counsel. The testator devised lands to his wife for life, and at her decease, she was to give the same to .whom she pleased. The wife granted the reversion to a stranger, and committed waste, and the two daughters brought an action of waste. It was held, that by the devise, the wife had but an estate for life, with an authority to give the reversion to whom she pleased; and her grantee would be in by the will, for the testator had given his wife an express estate for life, and, therefore, she could not, by implication, have any greater estate; but if an express estate had not been appointed to the wife, by the other words, an estate in fee simple had passed. So, in *Thomlinson*v. *Dighton, (Salk.*239, 240.) the testator devised to his wife, for her life, and then to be at her disposal to any of her children who shall be then living; this the court held to be only an estate for life, with a power to dispose of the inheritance; and *Parker,*Ch. J., in delivering their opinion, recognises the distinction between that case, and those in which the devise is general and indefinite; as, to *J: S.,*arid that he shall sell, or to *J. S.*to sell; because, in these instances, the party being empowered to convey a fee, is construed to have one, he having no express estate divided from the power; but in the case before the court, the power *560is a separate gift, distinguished from the estate, and the estate given, is a certain and express estate. And in Reed *v. Shcrgold,*(10 Vesey, 370.) also referred to by the opposite counsel, the same doctrine was confirmed. The Lord Chancellor says, that it was well settled, “ that where there is an express limitation for life, with a power to dispose by will, the interest is equivalent only to an estáte for life,” And again; “ If the party dies, the interest ceases with the life ; and no one can take by transmission of interest from that person; though they might take by the power, if executed. *{Ibid,*379.)

There can be no authority produced, in which a fee simple is given, by apt ann appropriate words, to the first taker, with the addition of an absolute power of disposal, and yet the fee has been restricted to a life estate, by mere implication. In the present case, there was a gift of the whole interest which the testator possessed, by apt and appropriate words; and to render his intention as unequivocal as possible, he superadds an unqualified and unlimited power of disposing of the estate. He employs the phrase, and adopts the provision, best calculated to render his wife the unrestricted owner of his property. *Goodtitle, ex dem. Pearson,*v. *Otway,*(2 *Wilt.*6.) is as strong an authority, to the same purpose as those which have already been mentioned. The testator devised lands to *Agnes Pearson,*who was bis heir at law, for and during her life, to be enjoyed by her without molestation, and after her death, to her lawful issue; and if she should have no issue, that she should have power to dispose thereof at her will and pleasure. *Agnes*entered, married the defendant, to whom she devised the premises, and died without issue. In an action by the heir at law of *Agnes,*against her devisee, the whole court was clearly of opinion that *Agnes*had an estate in fee-simple, by the will, as the contingent remainder to the issue never vested; and that the testator, by giving her power.to dispose thereof at her will and pleasure, in case she had no issue, had given her a fee simple. Judgment was, therefore, rendered for the plaintiff; it being admitted, on all sides, that if she had an estate in fee, she could not make a will during her coverture ; but if she had only an authority, she might execute it *561while covert. The court, in this case, are reported to say, that the case in 3 *Leon.*71. already cited, was not law. Without attempting to reconcile these authorities, (and yet there is an obvious distinction between a devise to *A.*for life, and a devise to *A.*for life, remainder to the issue of *A.)*if it is to be understood from the decision in *Goodtitle*v. *Otway,*that a power of disposal will enlarge an express estate for life, into a fee, it extends the effect of such a power far beyond what the counsel for the defendant feel it incumbent on them to urge : viewed in any other light, it by no means impugns the principles which they have insisted on. But this is not the only instance in which an express estate for life has been enlarged to a fee by implication. The same construction was made by the Court of Appeals of *Virginia*in *Shermer*v. *Shermer’s Ex’rs,*(1 *Wash.*266.) where the testator devised to his wife the use and profits of his whole estate, both real and personal, during her natural life, and after that was ended, then the whole of his estate, exclusive of that already given to his wife, to be equally divided between whoever his wife should think proper to make her heir or heirs, and his brother, *R. S.*He empowered his executors, after the wife’s death, to sell, and dispose of his estate. The executors, after the death of his wife, sold the estate, agreeably to the will, and distributed one moiety thereof among the relations of the wife; to recover which, the heir and executor of *R. S.*filed his bill in chancery, which, on the hearing, was dismissed; and on appeal, the decree dismissing the bill was affirmed; because the intention of the testator was apparent, that the wife should have the whole of his property during her life; and that, on her death, one half should go to her family, and the other to his own. Independent of the two last authorities, there is enough to show, that in the case now before the court, the devise of all the testator’s estate, connected with the power given to the devisee, must carry the fee. The cases of family settlements which have been referred to by the opposite counsel, are inapplicable. In all those cases, the settler reserved to himself the power of revoking the uses which he had previously created.

*562If by a subsequent limitation, a devise of the testator’s *estate*will be restricted to an estate for life, yet it must be otherwise, where unlimited authority over the land is given .to the first devisee. If a devise over can narrow the primar ry import of the. word estate, can it also defeat the necessary implication arising from the absolute power of disposal ? On the contrary; any subsequent limitation is inconsistent with .a right to give or sell the land; it is repugnant to the power; and as both provisions cannot subsist together, the limitation must be rejected. But supposing the inconsistency renders both void, the first devisee, under the will in question, would take a fee. A devise of a man’s estate to *A.*is tantamount to a devise to *A.*and his heirs. Had the testator devised, in express terms, to Lady *Stirling*and her heirs, would not the absurdity be glaring, if he should proceed and say—no, her heirs shall not inherit, but the person whom I now designate shall succeed to the land. There are cases in which words of request have been held imperative, and that the devisee was bound to dispose of the property among the persons pointed out by the testator. *([Hardiug*v. Glynn, 1 *Aik.*469. *Bute*v. *Stewart,*1 *Bro. P. C.*'476. *Cruise’s Dig.*Devise, c. 10. s. 14, 15.) There is nothing precatory, still less is there any thing imperative here. The testator gives no direction, he expresses no desire, that Lady *Stirling*should exercise her power in favour of his daughter: she might have disposed of the estate to an utter stranger ; and admitting that she had only a power, her appointment would have been valid.' The testator has done,nothing to enforce and protect the ulterior limitation, and has left the devisee over as much at the mercy of the first taker, as if she had not been named in the will. Indeed, his intention is apparent, to give his wife his whole estate, as largely as he himself enjoyed it—indefinitely, and without control. But, to repeat what has been already urged, it is an invariable rule of law. that an unlimited power of sale annexed to an estate given carries a fee. *(Cruise’s Dig.*Devise, c. 11. s. 11. 15. c. 13. s. 6, 7, 8.) It is also a rule, that, a general devise, without words of limitation, and which of itself would create only an estate for life, may be enlarged by *563subsequent words, or by implication, into an estate tail, *(Cruise's Dig.*Devise, c. 12. s. 34. *et seq.)*

According to thé argument of the opposite counsel, Mrs. *Neilson*took either a remainder or an executory devise ; but which it was, they neither do, nor can designate. The truth is, she has neither. It cannot be a remainder, for no remainder can be limited on an estate of inheritance ; and as an executory devise the limitation is equally void. It is of the very essence of an executory devise, that it cannot be prevented or destroyed by any alteration, whatsoever, in the estate out of which, or after which, it is limited. *(Fearners Ex. Dev.*51. *Pells*v. *Brown, Cro. Jac.*590. *Scatterwood*v. *Edge, Salk.*229.) Here, on the 'contrary, the executory devise was liable to be defeated by any conveyance of the lowest order; a bargain and sale, or a will, would have done it effectually. It is not denied, but that Lady *Stirling*might, by any species of conveyance, have prevented the subsequent limitation from vesting, and the mere possibility that this could be done, is incongruous with every idea of an executory devise. There is no case to be found, in which an executory devise was held to exist after a contingency like this : for what has been termed a power to sell is not properly and strictly a power, but it is the express contingency on which the devise over is made, to depend. The devise is, that *in case of the death of the wife,*without giving, devising, and bequeathing by will, or otherwise selling or assigning the said estate, or any part thereof, *then,*the testator gives, devises, and bequeaths- all such estate, or all such parts thereof as shall so remain unsold, undevised, or unbequeathed, to his daughter. To expressions of this kind, the term *power,*(although it has beep used in the foregoing part of the argument, where it was unnecessary to scan its meaning with nicety,) is inapplicable. By the clear language of the will, the devise over is to commence on the contingency of the death of Lady *Stirling,*without selling or bequeathing the estate; but upon such a contingency, the law will not suffer any executory interest to be limited. The case of *Beachcroft and others*v. *Broome,*(4 *Term Rep.*441.) does not support the doc?trine contended for on the opposite side, There the testar *564tor devised part of his estate to *F.*and his heirs, and the residue to C. and his heirs, and if either *F.*or *C.*should die without having settled, or otherwise disposed of the estates so devised, or without lawful issue, &c., then to the survivor. The only question was, whether the devisee could sell the estáte, and the court held, that there was no doubt but that the testator intended that he should have the power so to do. The case, therefore, turned only on the single point of the existence of the power, and whatever Lord *Kenyon*observed, as to there being an estate-tail, was clearly extrajudicial. The counsel for the plaintiff insisted, that the first devisee took an estate in fee, and the very question proposed by the Court of Chancery, in which the case originated, and from which it was sent for the opinion of the Court of K. B., shows that there was no other subject for discussion in the case, as to which, Lord *Kenyon*properly observes, “ it is impossible to raise any serious •doubt.” Indeed, it was so clear, that the opposite counsel declined to argue it, saying that he had no hope of success.

It does not appear thatthe point was discussed or decided, how far an executory devise can be defeated by a power to sell, and whether an -executory devise can be limited upon the contingency that the-first taker does not dispose of the estate. But admitting that it was intended to decide, that an executory devise might -be limited upon a similar contingency, or if such be the true construction of the case, then it is not law. It is contrary *to*the case of Jackson, *ex dem. Brewster,*v. *Bull,*(1-0 *Johns. Rep.*19.) and the authorities upon which that case was decided. The devise over, in that case, was of such property as the first devisee should die *possessed of,*and it was held void, being repugnant to the absolute controul over the estate, which the testator intended to give. *The Attorney General*v. *Hall, (Fitzg.*314.) is in point, to"show, that the words, *died possessed of,*imply a power of alienation by the devisee, and, consequently, an absolute ownership repugnant to the limitation, and destructive of it. The two other authorities cited by the Supreme Court, *(Flanders*v. *Clark,*1 *Ves.*9. *Ide*v. *Ide, 5 Mass. Rep.*500.) are to the same effect. “ The question does not turn upon the fact, whether the devisee had exercised his *565power of alienation. He had not, as to the personal estate, in the case from *Fitzgibbon;*but the question is, whether the clear intent of the testator to give him an absolute control over the property, be not inconsistent with, and destructive to, what would otherwise have been a good andbinding limitation. A valid executory devise, of real or personal pro perty, cannot be defeated at the will and pleasure of the first taker. This is a settled principle.

An executory devise may be of mere personal chattels, as well as of real property, and in either casq^ the limitation over is equally protected and secured, from being prevented by the alienation of the first taker. *(F earners Ex. Dev.*26. 50. 54. *Manning's*case, 8 *Rep.*95. a. *LampePs case,*10 *Rep.*46. b. 1 *Roll. Abr.*612. pi. 3, 4. *Hyde*v. *Parralt et al.*1 *P. Wms.*1. *Cadogan etal. v.Kennelt et al. Cozop.*432. 435. n. *lloare and another*v. *Parker,*2 *Term, Rep.*376* *Lockyer et al.*v. *Savage et al. Sir. 647: Cruise’s*Dig. Devise ch. 19. s. 3, 4, 5, 6, 7.) These authorities show, that there is no difference as respects an executory devise of real or personal property, and thus the criticism which, has been attempted on the case of *Jackson*v. *Bull,*is overthrown. The same rules apply to either species of estate. It has been settled, that an executory bequest of a term for-years cannot be barred ; and, therefore, the same rule is applied to this kind of limitation, as to executory devises of estates of inheritance; namely, that it should not, within the compass of a life, or lives in being, and twenty-one years and some months after. *(Cruise’s Dig.*Devise, ch. 19. s. 12.) *Jackson*v. *Bull, The Attorney General*v. *Hall,*and *Flanders*v. *Clark,*all show, that this distinction is unfounded ; and whether the devise be of land or of chattels-, the power to sell, *ipso facto,*destroys the executory limitation. There is no case in which an unlimited power of sale is annexed to the particular estate on which a remainder is to depend; or if such a case can be found, it can only be a case in which an express estate for life was given, and not, as in the present instance, where the devise was general. Here, the testator unquestionably intended, and actually did give to his wife, an estate of inheritance. The word *estate, by*which the fee passed, it has been attempted to restrict to *566a mere interest for life ; but how can an executory devise of laud be limited upon a life estate ? Unless the inheritance was given in the first instance to Lady *Stirling,*there was no foundation on which the executory devise could rest; but as the inheritance was given to her in such a manner, that she could, at any time, and in any way, defeat the limitation over, the executory devise was void ; void as wanting the most essential requisite, its unalienable nature. Besides *Jackson*v. *Bull,*which has so often been referred to in the course of this argument, the case of *The Executors of Mojfatt*v. *Strong,*(10 *Johns. Rep.*12.) is conclusive to show, that a valid executory devise is beyond the control of the first devisee; and it is particularly deserving of notice, that there, the property which the first devisee undertook to dispose of, was a chose in action, a promissory note. ‘‘ Every executory devise,’’ says *Kent,*Ch. J. in that case? “ is, as far as it goes, a perpetuity; that is, it is an unalienable interest. The devisee has only the use, and not an absolute interest in the personal property devised. The rule holds good, where the bequest is of specific chattels, as books, furniture, stock, &c.’’

A limitation repugnant to an estate given by will, is void. After a devise to *A. and his heirs,*or a devise to *A.*of all the testator’s estate, a limitation restrictive of the interest previously granted, is repugnant. To admit such a limitation, would be to expunge the word *heirs,*or to confine the meaning of the word estate, and thus the intention of the testator would be defeated. If a person has an unrestricted power of disposing of an estate, it is chargeable with his debts to the extent of the power. As it would be absurd to pretend, that a person can have a fee simple, not of an inheritable quality, the plaintiff’s case can only be supported by showing, that Lady *Stirling*had an estate for life.

2. If Lady *Stirling*took the fee simple, then the plaintiff’s right of entry is barred by the statute of limitations. During the continuance of the particular estate, the remainder man cannot enter, and is, therefore, unaffected by the laches of the tenant for life; and so it was held in *Jackson, ex dem. Hardenbergh and others,*v. *Schoonmaker.*(4 *Johns. Rep.*390.) .But admitting that the devisees under Lord *Stirling’s*will *567stand in the relation of tenant for life and remainder-man, or conceding that there was a valid executory devise, that case is materially distinguishable from the present. There the first taker could do no act to devest the estate of the remainder man. Here, the devisee over was completely at the mercy of the first taker; and if, by her active interference, she could prevent the subsequent devise from taking effect, does it not follow, that her permitting an adverse title to commence and continue, must be equally conclusive upon the remainder-man or executory devisee ? It is unnecessary to discuss how far the *scire facias*and the proceedings upon it, affected Lady *Stirling.*If she were injured, she ought to have sought redress in her life-time. After a lapse of twenty-five years, the court will not set aside proceedings, for form merely, and without merits, and turn a *bona fide*purchaser out of possession. The heirs were personally summoned, and that .is sufficient.

3. The sheriff’s sale was good, and was warranted by the judgment and execution. But it. is said, on the other side, that the lands were not in the possession of the heirs. This is not correct: the verdict finds, that the purchaser under *Taylor*was the first occupant. In judgment of law, the owners were the possessors. If it be alleged on the other side, that Lady *Stirling*was owner, then they must give up their cause on the first point which they have made, according to which Lady *Stirling ■*had no more than a life estate. A terre-tenant is the owner of the fee. By *tenants*generally, is meant the owners of the fee simple, and by occupiers, those who come in under them. (2 *Saund.*9. n. 9.) The heir is chargeable on the judgment, or recognizance of his ancestor, as tenant of the lands, and not as heir. (2 *Saund. 7.*n. 4.) If Lady *Stirling*took a life estate, the remainder over vested at the same time; the rule being now settled, that a power of appointment in the first taker, does not suspend the effect of the subsequent limitations, and keep them in contingency, but that they vest, subject to be devested by a subsequent execution of the power; *(Fearne on Rem. Bull ed.*226. 229.) and in this view of the case, the proceedings were regular, as the person who bad the inheritance was warned. A defendant in *scire facias*
      *568cannot plead non-tenure generally, but "only specially, as that be holds only for years; otherwise, it would be to permit the sheriff’s return to be'traversed. *(Com. Dig,*Pleader, T T x *° ,*„ 3 L. 11. *Barret*v. *Trotman, 3 Lev.*205. *Find*v. *Penington, Cro. Eliz.*872. *Adams and Terre-tenants of Savage, Salk.*601.) And although the tenants may, perhaps, allege that they are not to be charged until the heir is summoned, (2 *Saund.*72. n.) yet it no where appears; that the heirs can object that the other terre-tenants have not been summoned. After a judgment has been regularly entered on a *scire facias,*it will not be" set aside, on the ground that the defendants were not such terre-tenants as ought to have been summoned. *(Whitney*v. *Camp and Townley,3 Johns. Rep.*86.) Still less, can any objection be taken in another action. It is a settled rule of law, that if a defendant has a matter proper for his defence, and he neglects to plead it in bar to the action, at the time he may, he shall never take advantage of it afterwards. As if a tenant in tail upon a *scire facias,*be. returned tenant in fee, and suffers judgment by default; upon an *elegit*and ejectment brought, he cannot give in evidence, or any way defend himself by his tenancy in tail, because he might have pleaded it in bar to. the *scire facias. (Earle*v. *Hinton, Str.*7 32.)

• 4. If the proceedings on the *scire facias*were regular, it - has been already shown, that the defendant cannot now introduce any defence which existed during their pendency: if they were irregular, such a length of time has been suffered to elapse, that they cannot now be questioned. The cases *of Gilburn*v. *Rack,*(2 *Sid. 7.*12.) and of *Day*v. *Guilford,*(1 *Lev.*41. 1 *Sid.*54.) are conclusive as to this point: and in the last mentioned case, *Twysden,*J. cited a case, where a *scire facias*was sued upon a supposed judgment, where there was none, and on *scire facias*returned and judgment by default, the party was left without remedy. But it is unnecessary to enlarge upon this topic ; the subject was fully discussed, and the question definitively settled, in *Jackson*v. *Delaney.*Every interest, such as that of a tenant in remainder, or of any other person having an expectant estate, may be sold under a fi.fa.; and in this case *569the interest of the heirs of Lord *Stirling*was sold, even if Lady *Stirling*had nothing more than a particular estate. Mrs. *Neilson1 s*remainder, admitting that her interest was of that description, was sold. If all proper parties were not joined in the *scire*facias, it was for Mrs. *Neilson*to have said so at the time»

Banner, in reply.

1. Where a power of disposal is annexed to an estate for life, the devisee only takes an estate for life, with a naked power to give the reversion. *(Cruise’s Dig.*Devise, ch. 13. s. 6, 7.) In this case, Mrs. *Neilson*took a contingent remainder, expectant upon the life estate which Lady *Stirling*had, coupled with an unlimited power of disposal; or if this construction cannot be supported, then she has an executory devise. That a power of disposal may be annexed to any estate, is apparent from the practice in family settlements, and the authority of Lord *Kenyon,*in *Beachcroft*v. *Broome,*decides the point. Such a power may, in certain cases, imply a fee; but not where, as in the present instance, it would be contrary to the intention of the testator. The fallacy of the decision in *Jackson*v. *Bull,*consists in the application of the doctrine in the *English*cases to realty, whereas, they can only be applied to chattels.

2. The sale by the sheriff was void, because there was no judgment against the lands of Lady *Stirling,*and because the sheriff must warn, in every county, where the lands lie. A *scire facias*to the sheriff of *Nezo-York,*only binds the lands in *New-York,*

The Chancellor.

This is an action of ejectment brought by, or on behalf of *Catharine Neilson,*formerly *Catharine Duer,*and one of the daughters of Lord *Stirling.*

It appears, by" the special verdict, that Lord *Stirling*was, on the 1st of *January,*1771, seised in fee, of a tract of 3,000 acres of land in *Wallkill,*in the now county of *Orange,*and of which the premises in question are a part. That in that year, *Ann Waddell*recovered a judgment againt him, for 7,790/. of debt, and which judgment, upon the death of *570
      *Ann Waddell,*was revived by *scire facias,*in 1775. That Lord *Stirling*died in 1783:/ and, in 1788, the executors of *Ann Waddell.*undertook *po*revive and enforce the judgment against the representatives of Lord *Stirling.*A *scire facias*was, accordingly, sued out of the Supreme Court in that year, directed to the sheriff of *New-York,*and commanding him to give notice to tlie heirs of Lord *Stirling,*and to the tenants of the lands in his bailiwick, which were bound by the judgment, to show cause, if any they had, why the debt should not be levied on those lands. To this writ ot *scire facias*the sheriff returned, (¡hat he had made known to *Mary Watts*and *Catharine*Duer, who were daughters and heiresses of Lord *Stirling,*to appear in the Supreme Court, and show cause, if any, why the debt should not be levied on those lands. The sheriff further returned, that there were no other heirs of Lord *Stirling,*nor any other ten,ants, or any lands in his bailiwick, bound by the judgment. The heirs did not appear according to the summons, but made default, and judgment was thereupon awarded, that the executors of *Waddell*should have execution against those heirs, of the lands which were of Lord *Stirling,*in 1771 j and in their hands and possession. In the same year, execution issued upon the judgment so revived, to the sheriff of Ulster, commanding him to levy the debt and costs of the lands in his bailiwick, whereof Lord' *Stirling*was seised, in 1771, and in the hands and possession of those heirs. The sheriff stated, that he bad seized certain lands which were of Lord *Stirling,*and of which he was seised in 1771, in the hands and possession of those heirs, and sold them to *John Taylor.*The premises in question were part of the lands so seized and sold, and *John Taylor,*in 1794, conveyed them to *Samuel Harlow,*who entered into possession, and in 1795, sold them to the father of the present defendant, who continued in possession from 1795 to 1814, when he died, and the estate descended to the defendant, as his son and heir at law.

From this state of facts, it appears that here has been an actual *bona fide*possession, under the sheriffs deed, of 25 years, and it is 31 years since *Catharine Duer*was personally summoned, as one of the heirs of Lord *Stirling,*to *571show cause why the judgment debt against Lord *Stirling*should not be levied. The defence set up against this actio'n is twofold, and consists, 1. Of a title under the sheriff’s deed : 2. Of a legal protection under the statute of limitations. If this defence should prove ineffectual, then the lessor of the plaintiff, *Catharine Neilson,*as one of the daughters, and heirs of Lord *Stirling,*would be entitled to an undivided moiety of the premises. But she sets up a claim to the whole land, not as heir, but as devisee under her father. Lord *Stirling,*by his will, devised “ all his real and personal estate, whatsoever, unto his wife *Sarah,*to hold the same to her, her executors, administrators and assigns ; but in case of her death, without giving, devising, and bequeathing by will, or otherwise selling or assigning the said estate, or any part thereof, then he devised all such estate, or all such parts thereof as should so remain unsold, undevised or unbequeathed, unto his daughter *Catharine Duer,*to hold the same to her, her executors, administrators and assigns.” The claim, however, whether as heiress, or as devisee, is still under Lord *Stirling,*and subject to the judgment of *Ann*Waddell. In whatever shape *Catharine Duer,*now *Catharine Neilson,*may put forward her claim, she still is the very person who was personally summoned in 1788, to show cause why that judgment should not be levied, and who, by her silence and default, admitted she had nothing to say.

None of the facts in the case, are the subject of dispute. The existence and validity of the judgment debt, at the time of the *scire facias,*and of the sheriff’s sale, is not questioned. That the premises were owned by Lord *Stirling,*in 1771, and legally bound by the judgment, is not denied: (hat they were unoccupied in 1788, and that there was no actual tenant upon the land to summon, is granted. Neither the original judgment, nor the judgment upon the *scire facias,*nor the execution thereon, have ever been impeached, cither by a writ of error, or by application to the Supreme Court, on the ground of irregularity. They all stand, to this moment, and after a lapse of upwards of thirty years, as valid proceedings, upon record. The defence, therefore, in any view *572of the case, is very imposing: and if, in the face of all these facts, the claim of the heir or devisee could be sustained in an action of ejectment, against the present defendant, should apprehend that it would communicate a very injurious insecurity to title under judgment and execution.

1. The first point to be considered is, whether the defendant has not a good title under the sheriff’s deed.

This point is supposed to have been once decided in this court in the case of *Jackson*v. *Delancey,*(13 *Johns. Rep.*537.) which was argued and decided in the session of 1816. That was an action of ejectment brought by, or on behalf of, the claimant in the present suit, and under the same will, to recover lands lying in the town of *Plattekill,*in the county of *Ulster.*The defence set up was under the same judgment, execution, and sheriff’s deed to *John Taylor,*and it was contended, in that case, as well as in this, that the judgment was not duly revived by *scire facias,*because the widow of Lord *Stirling*was not made a party, and summoned ; and that the title under the sheriff’s deed was void, on that ground, and on the further ground, also, that the premises then in question were not described in the deed. It is to be observed that the lands sought to be recovered in that case, were no part of the 3,000 acres described in the sheriff’s deed, by metes and bounds, but they were sought to be included under the general description of “ all other the lands, tenements, and hereditaments and premises, in my bailiwick, whereof Lord *Stirling*was seised in 1771.” In the opinion which I had the honour to deliver before this court, and in the result of which the court unanimously concurred, it was stated that it appeared from the sheriff’s deed, that the levy, and exposure to sale, and the price bid, applied only to pieces or parcels of land which were therein mentioned and described, and that it was altogether inadmissible to sweep away all the rest of the defendant’s real estate in that loose undefined manner, when it was never specifically known or described, or set up at the sale. But as to the other objection to title under the sheriff’s deed, that the *scire facias*was not duly directed and served, I observed that “ Lady *Stirling*was the devisee of the real estate, and she was, consequently, the tenant of the freehold, and ought to have beeji*573a party to the writ. It was the same thing, as to her rights, as if execution had issued, and the lands been sold, on the dormant judgment against Lord *Stirling,*without any revival by *scire fa-cias.*Still I take the law to be, that even the omission altogether of the *scire facias*will not, as of course, render *void*a sale under the execution. An execution issued on a judgment, after a year and a day, without revival, has been held to be *voidable*only, and a justification to thp ^party under it, until set aside. The *scire facias*is intended as notice to a party to show cause why execution should not, issue, and to give him an opportunity to plead payment, or other discharge; and if it be omitted in a case requiring it, he would, no doubt, be entitled to relief, on proper application. But in this case, the execution has been permitted to stand to this day, without being regularly questioned by Lady *Stirling,*or her representatives. - She lived seventeen years after the execution had been thus irregularly issued ; and it cannot but be presumed that the *scire facias on*her daughters came seasonably to her *knowledge;*and evén ten years have elapsed since her death, and no attempt appears to have been made by her heirs or deviseqs, to set it aside. 1 presume the Supreme Court would not now sustain a motion to set aside the execution for irregularity, after so great a lapse of time. The objection is infinitely stronger when the attempt is made to question the regularity of the execution, and to set aside the title under it, in this collateral action.” I then went on, in that opinion, to cite some authorities in confirmation of what I had said, and concluded the point, by observing, that “ the first objection to *Taylors*title under the execution, from the want of a regular revival of the judgment by *scire facias,*falls to the ground.”

I do not know that it ought to be considered that theSe observations, which I made in the cause of *Jackson*v. *Delaney,*necessarily received the sanction of the court, because the title under the sheriff’s deed was bad, on the other ground, for want of a due description and sale of the land, and because the defendant, in that case, was enabled to shelter himself under the protection of the mortgage given by Lord *Stirling*to Mrs. *Waddell.*It may be, that the other members of the. court were governed in their judgment by *those other*points *574in the cause, because those points were sufficient to uphold the judgment in favour of the defendant. The Supreme Court, in the opinion which they gave in the cause now under review, seem to have cautiously avoided the express[on 0f any opinion on the title acquired by the sale to *TayiQT'*“Whether *Taylor*acquired a valid title, under the proceedings by *scire facias*and the sheriff’s sale, is a question,” say the court, “ which does not necessarily arise in this case.” The court, therefore, as if diffident of that point, place the validity of the defence in this case, entirely upon ' the statute of limitations. One of the judges says expressly, that “ were it not forShe decision of this court in *Jackson*v. *Delancey,*he should have no difficulty in saying, that the judgments were not well revived by *scire facias*against Lady *Catharine Duer.”*

As the Supreme Court have not assigned any reasons., or given us any authorities on this Very interesting point, touching the validity of the sale in 1788,1 am at a loss to know the • grounds of my error in that case. Out of deference to that court, as well as out of respect to the learned counsel who • have so ably argued this cause on the part of the plaintiff, I have reconsidered the point with all the care, and with all the research in my power, and I am under the necessity of saying, that I remain of opinion, that the title under the sheriff’s deed is valid in law. I prefer placing the cause on that ground rather than on the statute of limitations, because I am unwilling to cast even the shade of suspicion over such a title. I cannot give countenance to the idea, that Mrs. *Duer*can be personally summoned in 1788, as one of the heirs of Lord *Stirling,*and can suffer a judgment to pass by default on the *scire facias,*and large tracts of uncultivated land to be sold and settled under it, and now, after the lapse of thirty years, can be permitted to come into court, upon the ground that we mistook her claim and title to the land. It is not sufficient to say, that she did not claim it as heir of Lord *Stirling,*though the creditor may have supposed it; and that her claim was under the will of Lord *Stirling,*by way of executory devise, after a life estate in her mother. I should think it would be a sufficient answer to such an allegation, to say, *575that she had an interest in that land which was bound by the judgment, and liable to be sold on execution; and that if she had any thing to say against an execution, or that all proper parties were not summoned, she should have appear-, ed and pleaded it.

It is not pretended, now, that the judgment debt was not fully and fairly due, or that there was any person ready, at that time, to discharge it. If the *scire facias*had been in any other form, and under any other direction, the result would have been the same. There were no persons then living to whom the *scire facias*could have been awarded, except Lady *Stirling*and her two daughters. We are well warranted to presume, that neither of them had any thing to say that could have impeded the creditor’s remedy. The whole objection, therefore, to the informality of the *scire*facias, on the part of Mrs. *Neilson,*is matter of form, and not of substance. The creditor had no concern with any thing that Lord *Stirling*had done by will, to entangle his title with life estates, contingent remainders, executory devises or other family interests. The creditor had a right to sell the land, upon the revival of the judgment, and to vesta good title in the purchaser, which would be paramount to these subsequent claims, and demolish, at once, all these mysterious and complicated settlements.

There does not appear to be any intrinsic merit in the claim, and I think it can be satisfactorily shown to he precluded by the rules of law.

In the first place, the better opinion is, that if execution had been issued without any *scire*facias, the sale under it would not have been void. It might have been voidable, and liable to have been set aside, by the Supreme Court, upon motion, as irregular, or by this court, upon error, as erroneous ; but until that was done, the title would have stood. This question of irregularity, or error, never can be discussed collaterally in another suit. It is not a point in issue in this action of ejectment. We are only to look to the judgment, and cannot question its regularity. Thus, in the case of *Patrick*v. *Johnson,*(3 *Lev.*403. 2 *Lutw.*925.) an action was brought for false imprisonment, and the defendant justified under a judgment of the 1st year of *William*

*576and *Mary,*and a *ca.'sa.*of th'e 4th of *William*and *Mary.*To this plea the plaintiff replied, that the execution had issued after a year and a day from the judgment, without being revived by *scire facias ;*and on demurrer, the court resolved, that the execution sued after the year, was not void, but only voidable by writ of error; and until it be reversed, it is a good justification. This case was decided in the C. B., as early as the 6th of *William*and *Mary,*and it has since been quoted in all the books, and received as good law. Now, if a *ca. sa.*issued after a year and a day, without being revived by *scire facias,*will justify the sheriff in taking the body of a defendant, it will equally justify the sheriff in selling his land; and the purchaser may justify under such a title, at least until the judgment and ^execution be set aside for irregularity, or reversed by writ of error. It appears to me that the conclusion from this authority is irresistible. The same doctrine is taught in many other cases. Thus in *Burke’s case, (Cro. Eliz.*188.) and *Shirley*v. *Wright,*(1 *Salk.*273.) and *Marlin*v. *Ridge,*(Barnes, 206.) a sheriff suffered a prisoner to escape on *ca. sa.*issued after a year and a day, without a *scire facias ;*and it was held that he was liable, and could not take advantage of the want of the *scire facias,*because the execution was good until set aside. The process was only erroneous, and not void. The Supreme Court of this state have uniformly regarded this as a settled rule of law. In the case of *Reynolds*v. *Corp Douglas's,*(3 *Caines,*267.) decided in 1805, the court all agreed in the validity of an execution issued after a year and a day, without revival, but they admitted that it was liable to be reversed, as erroneous. So also, in *Jackson*v. *Bartlett,*decided in 1811, (8 *Johns. Rep.*361.) there was an ejectment against a purchaser of land under a sheriff’s sale, and the regularity of the execution was questioned, because it issued after a year and a day, without a revival of the judgment by *scire facias.*The court say, that the question on the regularity of the fi.fa. could not be raised in the action of ejectment; and that though it may have issued a year and a day after judgment, without revival, it was only voidable at the instance of the •party against whom it issued. The purchaser’s title could *577not be questioned in that collateral action under such an execution. It was a good authority for the sale.

All these cases are much stronger than the present, for the execution in each of them was upon a dormant judg* ment, without the issuing of any *scire facias.*

But it is said, that these were cases of executions issued after a year and a day, and not after the death of the party. I do not know, however, that such a circumstance makes any difference in the application of the rule. The presumption that the judgment is satisfied, is no stronger when the parties to the record are changed by death, than when the creditor has suffered the judgment to sleep. But in the *Pennsylvania*case, of the *Lessee of Heister*v. *Fortner,*(2 *Binney,*40.) a judgment was obtained in 1789, by *A.*against *B.,*and some years afterwards, *A.*died, and his executors issued execution on the judgment in 1797, after a *scire facias*issued, and one *nihil*only returned, which was as no summons, either in law and fact, and sold the land. The court held, that the judgment and execution on such a *scire facias*might be set aside for irregularity, or reversed on error, but that neither the error, nor the irregularity, could be noticed in that ejectment suit against the purchaser. Here, then, we have the same doctrine, when one of the parties was changed by death, and it shows, that there is in such a case no variation in the principle.

But I need not pursue this point any farther, for a *scire facias*did actually issue in this case, and the heirs of Lord *S.,*(and one of them was the present lessor of the plaintiff,) was actually summoned to appear and show cause, and they omitted to do either.

There were no terre-tenants or actual occupiers of the land to summon. It is admitted, that *Samuel Harlow*made the first entry upon the premises in 1794. There were no persons to summon, but the widow and children of Lord Stirling; if the former was not made a party to the *scire facias,*the heirs did not come forward and object *to*-it, and the rights of the widow we are not now to discuss. If she had only a life interest, as the counsel for the plaintiff contend, that interest terminated with her life. Placing the interest of Lady *Stirling,*then, for the present, out *578of view, there were no persons to summon but the two daughters, and being personally summoned, can they now be heard to object to any informality in the process ? How absurd would it have been to have issued a *scire facias*to the sheriff of Ulster, when the. heirs lived in *New-York,*an5 when there were no occupants upon the land. The *scire facias*was directed *to the*sheriff of *New-York,*to summon the heirs and the tenants of the lands in his bailiwick, and he returned that he had summoned the heirs, and that there were no other heirs, and that there were no other tenants. In the absence of all actual occupiers, the rightful owner is the terre-tenant, and if he owns only a remainder in fee expectant on an estate for life, (as is contended for on behalf of Mrs. *Neilson,)*he is the terre-tenant of the fee. In *England,*the heir who has only such an estate in remainder may plead it to the *scirefacias,*and allow the creditor to take judgment -for assets, *quando*acciderunt. But not so here, for the judgment existing prior to the creation of these separate interests, is to be presently satisfied without regard to them. Indeed it is held in *England,*that a reversion expectant upon an estate for life, is assets in the' hands of the heir. (1 Lord *Raym.*53. *Carth.*129. *Holt,*Ch. J. *Kellon*v. *Rowden.)*The judgment upon the *scire facias*was, that the party should have execution of the lands whereof Lord *Stirling*was seized in 1771, “ being in the hands and possession” of those heirs. The judgment was not confined to the lands in the city of *New-York.*It was co-extensive with the jurisdiction of the court, and reached to all the lands of Lord *Stirling*throughout the state. How, otherwise, was the creditor to award his *scire facias,*except against the heirs, when the land was unoccupied? There is no evidence in the case, that the will of Lord *Stirling*was then made public, or known to the party. It was the business of the heirs to have come in and pleaded that there were other parties in interest not summoned, if they deemed it material to have their mother, or any other person, associated with them in the writ. But the fact is, that it was not material, andwhoever may have been summoned, no doubt the execution must have been awarded, for no person appears to have been ready and able to pay the debt.

*579It is no defence for Mrs. *Neilson*to say, that her interest in the land was in the character of a devisee, and not in that of heir. She was summoned as heir and as tenant, and the sheriff returned, that he had summoned her and her sister, and that there were no other heirs, nor any “ other tenants.” The *scire facias*was to summon the heirs and the tenants, and the return of the sheriff upon a just construction of it, is, that he had summoned her, in both capacities. Her character as terre-tenant would apply as well to her as devisee, as heir.

These criticisms are, however, unnecessary. After such a lapse of time, and in such a collateral way, a *scire facias*and its return, are not to be assailed by such means. There is no precedent for it in law, nor any colour for it in justice. By suffering judgment to pass by default upon the *scire facias,*all the rights of the lessor of the plaintiff, as heir of Lord *Stirling,*and as devisee of Lord *Stirling,*were waived and abandoned.

Though Mrs. *Duer*was, at the time, a *feme covert,*and her husband was not returned by the sheriff, as summoned with her, the objection, if good at all, should have been pleaded in abatement. (Lord *Kenyon,*and theK. B. in 3 *Term Rep.*631. *Com. Dig.*tit. Abatement, F. 2. tit. *Pleader,*2. A. 1.) It was cured by the default, and, at most, was but matter of error.

In *Hannon*v. *Mase, (Hob.*283 ) a defendant to a *scire facias*upon a judgment, was summoned, and made default, and execution was awarded against him. He had a release of the judgment which he had neglected to plead, and he was held concluded by the default, and relief was denied him. So, in *Bascock*v. *Thompson, (Sty. Rep.*281. 288.) error was brought by special bail to reverse a judgment upon *scire facias*by default, and the error alleged was, that no *ca. sa.*had been previously taken out against the principal, and, therefore, the *scire facias*against the bail was not good. *Roll,*Ch. J. admitted, that this would have been a good plea to the *scire facias;*but as the party had been duly-summoned, it was too late then to use it for error, for otherwise, there would be no end of things ; and the judgment ■was affirmed.

*580These two cases are of ancient date, and they show, that the party may effectually, waive his rights, by suffering a defau*t uPon the *scire facias,*even though he may have the most pressing equity in his favour. And can the present lessor of the plaintiff expect to be relieved at this day, and in this action, when she does not show that she had then, or ever had since, any thing to plead to the *scire facias?*But I proceed to stronger and graver cases.

The case of *Gilburn*v. *Rack,*(2 *Sid.*7. and 12.— 1 Lord *Raym.*590. S. C.) was decided in the year 1657, in what was called the upper bench, during the transitory period of the *English*commonwealth. This case cannot but be received here with some interest and curiosity, for it was the decision of a *republican*tribunal sitting in *Westminster*Hall. There was a judgment against *A. B.*and *C. A?,*one of the defendants, died, and the *scire facias*issued against his heirs, and it misrecited one of the parties to the judgment. The sheriff summoned the heir, and a judgment was given, and execution by *elegit*issued. The tenant by the *elegit*brought an ejectment against the heir, and the special verdict found these facts, and that the defendant, who died, was seised in tail, and that the *scire facias*was against the heir and terre-tenant, and the heir *in tail*was warned, and returned by the sheriff as heir *in fee,*and judgment was taken against him by default, and the entailed lands taken in execution. And what did the court say to such a weighty defence as this, which was, that the *scire facias*misrecited the judgment, and that his lands ought not to be charged in execution as if he was tenant in fee, when in truth he was only tenant in tail ? The answer of the court was, that he was estopped by the summons upon the *scire facias,*and the default, to give in evidence, that he was tenant in tail, and not tenant in fee, for he should have appeared, and pleaded to the *scire facias.*Nor would the court take notice of the misrecital of the judgment ; and they said that they would intend a judgment that would warrant the execution.

This case was cited, long afterwards, by Lord Ch. J. *Holt,*(1 Lord *Raym.*590.) and then again by Ch. J. *Eyre, (Str.*732.) as good law.

*581The next case of similar import, was that of *Day*v. Guilford, (T. *Raym.*19. 1 *Sid.*54. 1 *Lev.*41. 1 *Keb.*112. 141. S. C.) decided in the K. B. in the 13 *Car.*II. immediately after the restoration ; and though the judges were now clothed with royal ermines, the two cases show, that the principles of law are not to be affected by the revolutions of government. In this case, it was found, by special verdict, that the father of the defendant was seised of the lands in question, for life, remainder to the defendant in tai!, and the father acknowledged a debt of record to the plaintiff, and died. The plaintiff then sued out a *scire facias*upon the debt of record, against the defendant, as heir, and the sheriff returned the defendant as heir, and terretenant, and that he had summoned him. He made default, and did not plead, and judgment and execution were rendered for the plaintiff, who brought ejectment. The preceding case of *Gilburn*v. *Rack*was cited by the counsel, and the court held, that the defendant was bound by the judgment by default, upon the *scire*facias, for he ought to have ap peared, andpleaded, and that he could not be relieved, nor falsify the recovery in that action of ejectment. It was his folly not to have appeared when warned. And judgment was rendered for the plaintiff, though it was admitted, that the recognizance by the father, who was only tenant for life, was no lien on the lands of the defendant, because the estate of the heir in tail was not liable to the judgment against the father. If the party will not come in, and plead to the *scire facias,*though he be a mere stranger, *and in of another estate,*as the issue in tail, after a tenant for life, he is estopped, and shall never falsify the judgment. *Leges vigilantibus non dormientibus subveniunt.*

This was a very strong case. It went even beyond that which was pronounced in the time of the republic. Nei< ther of them have ever been overruled, or questioned : and now permit me to ask, where is the ground for distrust in the opinion, or for imputed error in the doctrine on this point as delivered in this court three years ago ? *Catharine Neilson,*with all her claims under the will of Lord *Stirling,*(whatever they may be,) is bound, and concluded by the judgment by default, against her upon the *scire fa;.*
      *582
      *das ;*and the subsequent execution and sale to *Taylor*were valid in law, and are not now to be shaken. Such a doctrine as this, 1 cannot but think, to be the true and sound doctrine of the common law, for it gives stability to legal proceedings, and security to judicial sales, and quiet to purchasers, and confers a signal blessing upon the community.

The title under the judgment on the *scire facias*is not only exempt from impeachment in this action, but it cannot be touched any where, or in any action. No writ of error will now lie, and no motion for irregularity can now be made. They are both barred by time, and were so long before *the*commencement of this suit. And I should doubt whether either of them, in this case, could have been sustained, at any time, on behalf of the heirs, so as to defeat the sale and purchase under the execution. There is much good sense and sound policy in the doctrine of Lord Ch. *Redesdale,*on this point, as delivered by him in the case of *Bennett*v. *Hamill.*(2 *Sch. fy Lef.*566.) A man died leaving a widow and an infant son; and his judgment creditors, in collusion, as was supposed, with the widow, filed a bill in Chancery to have the infant’s estate sold, and the widow appeared for herself and as guardian for her infant son, and a decree of sale was obtained. Under that decree, certain freehold and leasehold premises were sold, which came by purchase, fora valuable consideration, to the defendant who expended large sums in improvements. When the infant came of age, he filed his bill to set aside the decree and sale under it, as irregular and erroneous, and one ground of the allegation was, that he had no day given him by the decree, after he came of age, to show cause against it. Thé Chancellor admitted that there were irregularities in the proceedings which he pointed out, and that the decree was erroneous, inasmuch as the infant ought to have had a day to show cause against the decree when he came of age. But he held that this was not to affect the purchaser’s title. It would be too much, he thought, to say, that a purchaser under a decree of that description could be bound to look into all these circumstances, and go through all the proceedings from the beginning to the end. The general impres- ' sion from the cases was, that a purchaser had a right to pre*583sume that the court had taken the necessary steps, and he was only to see that all proper parties to be bound were before the court, and that the title was one affected by the decree. If we went beyond this, he observes, we should introduce doubts on sales under the authority of the court, which would be highly mischievous.

If I am correct on this branch of the defence, it would be unnecessary to go farther. The judgment of the Supreme Court must be affirmed. But, perhaps, my opinion may not meet with the entire concurrence of the court, on this point; and as the other head of the defence arising upon the statute of limitations, occupied the largest and most intricate part of the argument of the counsel, I should not feel satisfied with myself, if I did not pay some attention to so learned a discussion.

If Lady *Stirling*took an estate in fee under the will of Lord Stirling, then at her death, Mrs. *Neilson*would have been entitled, as one of her heirs, to an equal undivided moiety of all her interest in the premises. But if Lady *Stirling*took a fee, then an adverse possession commenced, when *Harlow*entered into possesion under *John*Taylor, in 1794, and the statute of limitations began to run against her, for she was then under no disability. When the statute once begins to run, it continues to run until the twenty years have expired, and, therefore, not only Lady Stirling, but all who claim under her by will or by inheritance, were bound in 1814, and before (he commencement of this suit. The question, therefore, as to what estate Lady *Stirling*took under the will, becomes material *only*by its influence upon this other question of the statute of limitations; and it was quite entertaining to see how industriously and profoundly the counsel were obliged to labour upon the one question merely to bring it to bear upon the other.

This question is also supposed to have been decided by this court in the former cause of *Jackson*v. *Delancy.*But, I apprehend, that the decision of this court in that case does not rest at all upon this point, and I barely mentioned in the opinion which I then delivered, that Lady *Stirling*did take a fee under Lord *Stirling's*will, and that the devise aver to his daughter *Catharine Duer,*was not a good limitá*584tion by way of executory devise. I relied for this upon the decision of the Supreme Court in *Jackson*v. *Bull,*(10 *Johns. Rep.*19.) and observed, that nothing had been urged to show why that decision was not to be regarded as correct. It is *that*decision, then, and not the one in this court) which I think governs this question. If that decision be sound, then, according to the principle of it, Lady *Stirling*did take an estate in fee; and, notwithstanding all that has been said or suggested to the contrary in the court below, *(Vide*15*Johns. Rep. 171,*172.) I am obliged still to be of the opinion, that it was a well-founded decision.

Suffer me, for one moment, to re-examine its foundations. *Redit labor actus in orbem.*

The testator, in that case, devised to his son *Moses,*and to his heirs and assigns forever, a lot of land, and then added, that in case his son should die without lawful issue, the property he died possessed of, he gave to his son *Young. Moses,*the son, did die in possession of the property, and without lawful issue, but he devised it by will, to his- wife and others, under whom the plaintiff claimed, in opposition to the devise over'to the other son.

The counsel for the plaintiff, contended, that the limitation over by way of executory devise, was void, because repugnant to the absolute power of disposal given by the will to Moses,who was thereby enabled to defeat it. The court unanimously acceded to that principle, and cited authorities in support of it, and gave judgment for the plaintiff.

The first case that the court then relied upon, was that of *The Attorney General*v. *Hall, (Fitzg.*314.) decided in 1731, by Lord Chancellor *King,*assisted by the master of the rolls, and Chief Baron *Reynolds. Hall,*the testator, owning real and personal estate, gave it, by will, to his son, and to the heirs of his body, and if he should die, leaving no heirs, then he gave so much of the real and personal estate as his son should be possessed of at his death, to the *Goldsmith"1 s Company*at *London,*for charitable purposes. A limitation over for such a purpose had strong claims upon the protection of a court of Chancery, and I hope that I may be excused for making, as a passing remark, *585that the will awakens interesting associations from another circumstance, which is, that Sir *Isaac Newton*was one of the executors. The son alienated the real estate by a common recovery, and bequeathed the personal estate by will to his wife, and died without issue. The question arose between the wife, claiming under the will, and the *Goldsmith’s Company*claiming by virtue of the limitation over on the event of the son, dying without issue. The case was fully and ably argued, and there was no distinction made between the real and the personal estate, as to the validity of the limitation over. The court were unanimously of the opinion, that the *Goldsmith’s Company*had no valid claim, and that the limitation over was void, because the absolute ownership - had been given to the son; for the property was given to him and the heirs of his body, and the company were to have no more than he should leave unspent, and, therefore, he had a power to dispose of the whole. The words that gave him an estate tail in the land, gave him the entire property in the personal estate, and nothing remained to be given over by the testator.

The point of that case then was, that where an estate is given to a man, and the heirs of his body, with a power of disposal, at his own will and pleasure, it carries with it an absolute ownership, repugnant to any limitation over, and destructive of it. The court did not make any distinction between the real and personal estate, and say, that the limitation over was good as to the one, and void as to the other. They said, *generally,*that the limitation over in the will was void, because the testator gave the son an unqualified power to spend the whole.

The other case that the court relied on in *Jackson*v. *Bull,*was *Ide*v. *Ide,*(5 *Mass. Rep.*500.) decided in the Supreme Court of *Massachusetts,*in 1805. There the testator gave by will, to his son, and to his heirs and assigns forever, certain real and personal estate, and then added, that if the son died without heirs, the estate which he *should leave*was to be equally divided between two other persons. The son did die without leaving heirs, and the question arose between those claiming the real estate under the limitation over, and those claiming it under a conveyance from the son. The *586opinion of the court was delivered by the late Ch. J. *Parsons'-,*wh°se character, as a lawyer and a judge, is held in universal reverence. He cited and relied upon the case of The *Attorney General*v. *Hall,*and said, that “ whenever it is the c^ear intention of the testator that the devisee should have an absolute property in ihe estate devised, a limitation must be void, because it is inconsistent with the absolute property supposed in the first devisee. And a right in the first devisee to dispose of the estate devised, at his pleasure, and not a mere power of specifying who may take, amounts to an unqualified gift.” He then applied the rule to the case before him, and observed, that “ the absolute unqualified interest in the estate devised, was given to the son, which was inconsistent with the limitation over, and, consequently, the limitation was void.”

The error, in the case of *Jackson*v. *Bull,*said the learned counsel, was in applying the *English*case to the real estate, when it was applicable only to chattels. But the Supreme Court of *Massachusetts*were then in the same error, for they equally so applied it. *n*The limitation over,” says Chief Justice *Parsons, “*makes no distinction between the real and personal estate, operating only on such part of either, as the first devisee should leave.” In both of those cases, the devise was of real and personal estate in the same sentence, and the same limitation over was created as to each ; and neither the *English,*nor the *'Massachusetts*court, " admitted any difference in the rule of construction, or in the operation of the power of alienation, whether applied to the limitation of the real or of the personal estate.

I do not know that either of those two last decisions have ever been questioned in any court, or by any author. They were pronounced by the highest judicial authorities; and Lord Hardwicke, (1 *Ves.*10.) gives his sanction to the accuracy of the *English*case. *Beachcroft*v. *Broome,*(4 *Term,*441.) decided in the K. B. in 1791, is in confirmation of the doctrine of the prior case. That was the case of a devise to *B.*and his heirs, and if he die without having settled, or otherwise disposed of the estate, or without leaving issue of his body, then the devise over. *B.*sold the premises in fee, and died without issue, and the question was, whether the *587purchaser took an estate in fee, and the K. B. held clearly that he did. The decision is entirely conformable to the doctrine in the *Attorney General*v. *Hall,*and *Ide*v. *Ide,*and *Jackson*v. *Bull;*but a'single expression of Lord *Kenyon*is seized upon, and great reliance was placed upon it by the counsel for the plaintiff in this cause. Lord *Kenyon*said, (and it must have been in loose conversation on the bench,) that if the case had turned on the question whether that was an estate tail in *B.,*he should have thought it extremely clear that on failure of the first limitation, the second ought to have taken effect as an executory devise. Perhaps, the meaning of Lord *Kenyon*is not to be clearly understood, It was an observation not required by the decision, nor applicable to the point; but let it mean what it may, are we to permit such a loose remark to be of any weight or consideration, in opposition to the deliberate and solemn judgments of the courts ? It is enough, I apprehend, merely to mention such a *dictum,*and then to pass it by in silence.

If we now apply these teases to the will of Lord *Stirling,*we cannot but be struck with their perfect and controlling application. He does, in the first place, devise and bequeath unto his wife *Sarah, all his real and personal estate whatsoever, to hold the same to her, her executors, administrators and assigns.*This was a gift in fee. The word estate, in a will, carries the land and all the testator’s interest in it. It is *genus generalissimum,*said Lord *Holt, (Countes*s *of Bridgwater*v. *Duke of Bolton,*1 *Salk.*236.) and includes all things real and personal. The words *all his estate*are, in a will, descriptive of his fee; and in a subsequent case, *(Barry*v. *Edgworth,*2 *P. Wms.*523.) the Master of the Rolls, referring to this opinion of *Holt,*said, that the law was then settled on the point, and that the word estate comprehended not only the thing, but the interest in it; and as it had been agreed and settled to convey a fee in a will, it would be dangerous to refine upon it. So again, Lord *Mansfield*observed, *(Roe*v. *Harvey, 5 Burr.*2638.) that the word estate in a will, carried every thing, unless tied down by particular expressions. And in a subsequent *588case, *(Holdfast*v. Marten, 1 *Term Rep.*411.) Mr. J. *Buller*said, that the word estate was the most general word that cou^ be used, and words of restraint must be added to make it carry less than a fee. And lastly, (for I will not fatigue myself with further citations on the point,) Mr. J. *Patterson**of the Supreme Court of the *United States,*declared, (3 *Cranch,*134.) that the word estate was the most general, significant, and operative word, that can be used in a will; and it comprehends both the land and the inheritance.

We may say, then, that Lord *Stirling,*by the first part of his will, gave an estate in fee to his wife. So he, also, repeated this gift of a fee, by the next clause in the will, when he admits expressly, that she has the power and the right *to give, devise, and bequeath, or sell or assign the estate, or any part thereof.*This power, of itself, is an attribute of ownership, and carries with it a fee. Thus, as early as 6 *Eliz (Dalison’s Rep.*58.) it was held by the judges, that if a man devises land to his wife, to dispose of and employ it upon herself and her son, at her pleasure, she takes a fee. So again, Lord *Coke*says, *(Co. Litt.*9. 6.) that if a toan de- , vises land to another, to give and to sell; this amounts to a devise in fee; for, in a will, the word heirs is not necessary to create an estate of inheritance. There are many other eases to the same effect, which I need not particularly mention, (M*oor,*57. 2 *Atk.*102. 2 *Johns. Rep.*391.) and we may lay it down as an incontrovertible rule, that where an estate is given to a person generally, or indefinitely, with a power of disposition, it carries a fee $ and the only exception to the rule is, where the testator gives to the first taker an estate for life *only,*by certain and express words, and annexes to it a power of disposal. In that particular and special case, the devisee for life will not take an estate in fee, nbtwithstanding the distinct and naked gift of a power of disposition of the reversion. This distinction is carefully marked and settled in the cases. *(Tomlinson*v. *Dighton,*1 *Salk.*239. 1 *P. Wms.*149. S. C. *Crossling*v. *Crossling,*2 *Cox,*396. *Reid*v. *Shergold, 10 Ves.*370. *Goodtitle*v. *Otway,*2 *Wils.*6.)

The question then occurs, was the limitation over to Mjs* *Buer*valid, after the creation of such an estate in fep;

*589The words of the will were, that “ in case of the death of his wife, without giving, devising, and bequeathing by will, or otherwise selling or assigning the estate, or any part thereof, he doth give and devise all such estate as should so *'*o remain unsold, undevised, or unbequéathed to his daughter, Lady *Catharine Duer,’*&c. This limitation over, must be either as a remainder, or as an executory devise, and it is impossible that it should be either, upon any known principles of law. No remainder can be limited after an estate in fee, and, therefore, if a devise be to *A.*and his heirs, and if he die without heirs, then to B., the remainder is repugnant to the estate in fee, and void. *(Preston*v. *Funnell, Wittes' Rep.*164. *Pells*v. *Brown,*2d point, *Cro.*Jac. 590.) Nor can the limitation over operate by way of ex-ecutory devise, because the power to dispose of the estate by will or deed, which Lord *Stirling*gave to his wife, is fatal to the existence of that species of interest. It is a clear? and settled rule of law, that an executory devise cannot be prevented or defeated by any alteration of the estate out of which, or after which, it is limited, or by any mode of conveyance. It cannot be created, and it cannot live under such a power in the first taker. “ These limitations,” says Mr. J. *Powell, (Scatlerwood*v. *Edge,*1 *Salk.*229.) “ make estates unalienable, for every executory devise is a perpetuity, as far as it goes, that is to say, it is an estate unalienable, though all mankind join in the conveyance.” *(Vide*also, 2 *Fearne,*p. 51. by *Powell.*2 *Saund.*388. d. note.) We are obliged, therefore, to have recourse to thq explicit and settled doctrine, in the cases of *The Attorney General*y. *Hall,*and of *Ide*v. *Ide,*and *of Jackson*v. *Bull,*and say, that an absolute ownership or capacity to sell, in the first taker, and a vested right by way of executory devise in an. other, which cannot be affected by such alienation, are perfectly incompatible estates, and repugnant to each other, and the latter is to be rejected as void.

Lord *Stirling*clearly intended to give his wife an estate in fee. The words amount to demonstration of that intention. If she sold the land-, she was not accountable for the proceeds. She could not be chargeable with waste, and she might mortgage, or incumber the land, for that is in-*590eluded in the right to give, and sell, and assign. And when he attempted to ingraft an executory devise or limitation over> upon a fee with such an absolute power of control, he did what was incompatible with his other and principal intention, and which the courts must, of necessity, reject as repugnant and void.

There is not a case to be found, in which a valid executory devise was held to subsist under an absolute power of alienation in the first taker. I have looked at the cases so industriously collected by the plaintiff’s counsel, and there are none of them that reach this point. All executory devises may be said, in some degrée, to depend upon the will or discretion of the owner of the precedent estate. If a devise be to *A.*in fee, but if he die without issue living at his death, then over to B., it is in his volition and power, (morally speaking,) not to marry, or to marry, and have issue, and so avoid the devise over. So, if ¡the limitation over be made to depend upon the contingency, that the first taker' marry without the consent of B., or marry a prohibited person, he may, undoubtedly, avoid marrying without the requisite ‘ consent, or avoid marrying against the prohibition, ■and só defeat the limitation. But these distinctions have nothing to do with the simplicity and good sense of the general rule we are discussing. The first taker, in these special cases, has not an absolute discretion and free agency, within the meaning of the rule. The sound doctrine on the subject is, that an executory devise under the salutary checks provided for it, is a stable and unalienable interest, and the first taker has only the *use*of the land or chattel, pending the contingency mentioned in the will j and he cannot convert the property to his own use, and defeat the subsequent estate by a voluntary alienation. *This*is the rule for which we contend, and it was not so with Lady *Stirling.*She could give and devise, and she could sell and assign the estate when, and to whom, and for what purpose she pleased. She was a free moral agent, and an absolute and independ- • ent owner, in respect to the estate. This is what we understand by a right, incompatible with an executory devise, and this is what we are to understand by the books, when they *591speak of a limitation over as being void, because inconsistent with such an absolute power and dominion in fee.

But it is time that this discussion should draw to a close, The result of my inquiry, is a belief, that the defendant has a good title under the judgment and execution, and that if he had not, he is, nevertheless, protected by the statute of limitations, because Lady *Stirling*was seised in fee, so as to enable the statute to run against her, when the adverse possesion commenced, in 1794. Upon either ground, if cor. rect, the judgment must be affirmed. During the examination of this subject, I have not been insensible to the weight of the inquiry, and more especially, as' one of the judges of the court below seems to think the law in favour of the claim. The counsel for the plaintiff, and one of them a son of a lessor of the plaintiff, have, indeed, laboured the points, in their argument annexed to the case, as well as at this bar, with a diligence and painful anxiety, and, no doubt, with a sincere conviction, that has excited my sympathy. The descendants of Lord *Stirling*appear to feel, that a rich inheritance has been injuriously snatched from their enjoyment, but I think it was fairly lost by the inability or neglect of their ancestor, or his representatives, to redeem the incumbrance. And if the law was with the plaintiff, would not our sympathies be as properly directed to this defendant, whose father was a *bona fide*purchaser under the execution, and cultivated the premises as his own for 20 years, and died in possession, and transmitted the fruit of his labour to his son ? The truth is, that judges are bound to declare the rules of law strictly, without regard to consequences. They must follow the conclusions of the understanding, and not the dictates of the heart. If the argument on the part of the plaintiff has made a more favourable impression upon others than it has upon me, I shall be perfectly contented. I am, however, obliged to say, as the case strikes me, that the law is with the defendant, and that the judgment ought to be affirmed.

This being the unanimous opinion of the court, it was, thereupon, ordered, adjudged and decreed, that the judgment of the Supreme Court be affirmed, and that the plain*592tiffs in error pay to the defendant in error, fifty dollars and fifteen cents, for his costs and charges, in and about his defence in this court; and that the record be remitted, &c.

Judgment of affirmance.