text:
    APPERSON versus COTTRELL.
    QUESTIONS IN THIS CASE.
    As to the jurisdiction of the Orphans' Court on the subject of a destroyed mill, and the establishment thereof by proof

      As to the establishment of such a will, by a copy thereof

      As to the number of the attesting witnesses necessary to establish a will.

    1. The Orphans’Court of this State is, in general, possessed of full and entire jurisdiction in relation to all testamentary causes.
    2. Thus, before the Orphans’ Court, a w 11, lost or destroyed, may be established, on an issue, submitted to a jury, by the production of a copy regularly proved by the attesting witnesses; and may be admitted to probate.
    3. So, the Orphans’ Court, with the aid of a jury, is competent to receive proof of a will, once made and duly executed before competent witnesses, and which has been destroyed by the testator in a fit of derangement: and (upon proper testimony, under proper issues,) to admit the same to probate.
    4. In a case like this, the Supreme Court will ohly look to the bill of exceptions, and any conceived error, in awarding an issue in the trial of the cause, or in the judgment of the court must be there reserved.

      5. Where the copy of a will had been produced for probate, and an affidavit was filed by the executor, stating the circumstances of the destruction of the original paper — held that the affidavit, (no objection to it being made before,) was a sufficient foundation for proofby the subscribing witnesses to the will, that it was executed while the testator was of sound mind; and proofby another that the testator destroyed a paper in a moment of insanity, (on the day of his death,) which he said was his will; were proper matters for the consideration of a jury, by which to identify the paper; and render a verdict on the question of its genuineness as a will.
    ¡3. It seems, that two, out of three witnesses, attesting a will of .realty, might wot be sufficient to establish said will, (if object-edto for want of the third,) if all be alive and within the jurisdiction of the court.
    7. But it seems clear that an objection of this kind could not be made, in error, where none had been made below, and where it did not appear, from the record, but that the absence of one of the three witnesses had been accounted for.
    In error from the Orphans’ Court of Autauga.
    This was a proceeding before the Orphans’ Court, instituted for the object of establishing the last will and testament of James L. Cottrell. A paper, purporting to be a copy of the will of said Cottrell, was submitted to that Court, for probate, on the affidavit of the defendant in error, the executor. The affidavit stated, that the copy produced, was substantially that of.the will; that said deceased had made no other will, save the one produced in copy; and that, at the time of its execution, the testator was of sound and disposing mind: and that it was duly attested in the presence of the witnesses whose signatures appeared thereto attached. That after the time of the execution of the said instrument, the said Cot-trel became dissolute in his habits, to such an extent as to impair his mind and destroy his memory; that while laboring under a fit of drunken insanity, while incapable of acting rationally, he tore into pieces and destroyed the said will; by which doings, he, the executor, was unable to produce the original will for probate; and he prayed the copy might be received and established as the last will and testament of said Cottrell; and letters testamentary issued accordingly. To the admission of.this paper to probate, the plaintiff in error, (who had intermarried with one of the daughters of the deceased,) filed objections, because, he averred, the said paper, purporting to be the said will of said Cottrell, was not the last will and testament of said Cottrell; that the same had not been executed by the deceased at a time when of sound mind and disposing memory — praying that these matters should be enquired of by the country.. And, for further objection, he averred that the said paper was but a copy; and that the deceased Cottrell had revoked the original by destroying it — of which hp prayed judgment
    The defendant in error, by way of replication, took issue upon the fact of Cottrell having executed his will, admitted the destruction of of it as alleged, but insisted that the testator at the time of the commission of that act, was insane and deprived of reason; further, averred the said paper to be a true copy of the said will, and submitted the matter to be determined by a jury.
    The court, upon this state of the proceedings, caused a jury to be empanneled, who, being elected, tried and sworn to try the issues joined, returned a verdict, saying that the said Cottrell died testate; that the instrument produced was a copy of his will; that he was of sound and disposing mind at the time of the execution of said will: and that it had not been revoked. And upon this verdict the Court rendered a decree, or judgment, establishing the will, and issuing letters testamentary thereon.
    During the trial a bill of exceptions was taken in the cause, on the part of the plaintiff in error; which disclosed, that when the said cause was progressing, two witnesses, who were the subscribing witnesses to the will, aftemnaking proof of the will, testified that the said Cottrell, in his lifetime, in their presence, and that of the other subscribing witness, executed the will in question, and that he was of sound mind at the time; that, thereupon, another witness was called, who swore that Cottrell, on the morning of his death, in a fit of insanity from intoxication, destroyed a paper which he said was his will. He further testified that he never saw the will, nor had he heard it-read. Upon this evidence the copy was admitted to be read to the jury — whereupon Apperson excepted, and brought the case to this court for revision.
    Argued by Goldthwaite, for the plaintiff in error, and Hopkins and Peck, for defendant.
   Saffold, C. J.

The defendant in error made application to the Orphans’ Court, of the County of Autauga, to admit a certain instrument to probate, as the last will and testament of James Cottrell, deceased. His affidavit states, that the instrument annexed, is substantially a copy of a will, made by said James L. Cottrell; that he believes, the decedent made no other will; that he was, at the time of making it, of sound mind; that the will was duly attested : that the testator, after making his will, became dissipated, and his mind was thereby impaired, and destroyed; and, that, at a time when he was in a state of drunken insanity, and incapable of acting reasonably, and not of sound mind, he tore the will "into pieces, and entirely destroyed the same.’— Wherefore, he prays, that the copy may be proved, and admitted to probate, as the last will and testament of the said Cottrell. »

The applicant further deposes, that he has made diligent search among the papers of the deceased,, and diligent inquiry among the family and friends^ and can *find no other will, and believes no other exists.

The widow of the deceased and next of kin, having been cited, by order of the Court, to appear, and show canse, if any existed, why said instrument should not be proven and established, as the will of the deceased, Apperson, claiming as heir, in right of his wife, who was a daughter of the deceased, appeared, and entered his caveat against the admission of said supposed will, to probate, on the ground, that it was not, in fact, the last will and testament of the deceased; and this, he prayed, might be inquired of by the country. And, for further objection, he insisted, that the said supposed will was not made at a time, when said James L. Cottrell was of a sound and disposing mind : and, this also, he prayed, might be inquired of, by the country. And, for further reason against granting probate, he alleged, that the instrument presented for probate, was but a copy from the original will of said James L. Cottrell; and, that the original was revoked, by his destroying the same; and this he was ready to verify: wherefore, he prayed judgment, &c.

By way of replication, to the several objections, filed against the validity of the will, the applicant denied the facts alleged, in avoidance; re-affirmed those stated in his application and sworn to; and submitted the several issues, to be inquired of, by the country.

TJpon this entire replication, Apperson joined issue.

A jury having then been empanneled, to inquire of the validity of the will, on the issues formed as aforesaid, they returned a verdict, finding, “ that James L. Cottrell did make a will, of which the instrument produced, is, in substance, a copy; and that he was of sound and disposing mind and memory, at the time of making the same; and that it has not been revoked.” Thereupon, the Court gavtf judgment accordingly, establishing the validity of the will, and granting letters testamentary to James L. F. Cottrell, the applicant, who gave bond, and quali-ed, as executor.

On the trial, as is shewn, by the bill of exceptions, a copy of the will was produced to the court: before the same was read to the jury, two of the subscribing witnesses to the original were introduced, and testified that the original was made by the deceased, in their presence — that he was of sound mind, at the time of his executing the same; and that he executed it in the presence of the other witness.— That, another witness was then called, who testified, that James L. Cottrell, the deceased,did onthe morning of his death, take the paper, which he said n as his will, and destroy it; and, that he believed he was, at the time, in a state of insanity, from intoxication; that he never saw the will of Cottrell, nor did he ever hear it read.

The two witnesses, however, who testified to the execution of the will, proved the same, substantially, before the copy was exhibited to them. Whereupon, the copy was admitted to be read, in evidence— to which the plaintiff in error excepted.

It is now assigned, for error—

First — That the Court below,.had no jurisdiction, to grant probate of a lost will, or, of one destroyed in the manner here alleged---or, to submit the same to a jury.

Secondly —That the court should not have permitted the instrument to be read to the jury, without further proof than was offered.

In England, previous to the reign of William I, the County Courts had jurisdiction of testamentary causes; but, after his accession, and the dismemberment of this Court, arising from the separation of the powers of the bishop and the sheriff, by whom it had been held, the probate of testaments, and the consequent determination of questions, growing out of them, devolved upon the Courts of Chancery, the Ecclesiastical Courts, and some Courts Baron. To the two latter, it is said the original jurisdiction exclusively belonged, except, that the former would interpose a concurrent jurisdiction, in determinations upon personal bequests, where a discovery and an account of assets, are generally necessary to the purposes of relief. Also, in cases involving matters of trust.— And, in cases, in which the ecclesiastical courts had not the means of giving effectual relief, the chan--eery exercised exclusive jurisdiction.

The general proposition, however, is maintained in the English cases, that the original jurisdiction of probates, belongs exclusively to the ecclesiastical courts, and to those courts Baron, to whom it has belonged, from time immemorial; and, that they alone, are competent to determine the validity of a will, either of real or personal estate.

The principle is also recognised, by Chancellor Walworth of New York. He, also, claims, for the decisions of these courts, a degree of respect, equal to that which is due those of any of the others,- in Great Britain, of the same date. He insists, that the high character of the judges, and the review, to which their decisions are subject, on appeal, by a court of delegates, composed of Judges of the King’s Bench, and common pleas, and barons of the exchequer, as well as doctors of the civil law, entitle them to the same weight.

The same, in most respects, may be said of our Court of probate; the jurisdiction of the Orphans7 Court to hear and determine this contest, must depend upon the statutes of the State. It is provided, that an Orphans’ Court shall be held in each county, “ for taking the probate of wills, and granting letters of administration, on the estates of persons deceased,” &c.; “ with full jurisdiction of all testamentary, and other matters, pertaining to an Orphans’ Court, or Court of probate, in their respective counties.

Again, it is said, “ the judges of each County Court, shall have power, within the county, either in open court, or in vacation, to take the probate of wills, grant and repeal letters testamentary, and letters of administration,” &c. And, further, that, “in all cases, where it may be necessary to have any matter, depending before said Courts, or the judge thereof,ion any return day, tried by a jury/bhe sheriff,, by order of the judge, shall, forthwith, summon and empannel a jury.

From these provisions, it would appear, that the Orphans’ Court has, in genera], plenary jurisdiction of all testamentary cases; and, that the statutes deny this cognizance to any other tribunal, even to Chancery ; except, in peculiar cases, requiring the exercise of its extraordinary powers: such, for instance, as involve matters of trust, and require an account to be taken; or, where, for other purposes, a discovery, on oath, from a party in interest is essential to the merits of the controversy. In cases of this kind, the powers of Chancery would not be restricted, by the jurisdiction of the Orphans’ Court, more than by that of any other Court of law, where their interposition is equally necessary.

In the case before us, I perceive no necessity for the extraordinary jurisdiction. Taking the proof, that a will was once made, and duly executed by the testator, in the presence of competent witnesses, is one of the most common duties of the Orphans’ Court. It is true, that this case required the establishment of the further facts, that the destruction of the original was the effect of insanity, and, that the paper exhibited, was in substance, a copy. -But, if these facts were susceptible of proof, by indifferent witnesses, in a court of law, and the Orphans’ Court possessed all the requisite means, to determine the truth of them, the effect of the statutes quoted, must be, to deny the jurisdiction to any other Court.

The facilities of this Court, to try questions of the kind, are greater, than those of a separate Court of Chancery, from which issues of fact must be sent to the Courts of law, for trial. They are just the same with those of the Chancery, under our organization,, which unites the common law and Chancery powers, in. the same tribunal, and, -which is provided with a jury, for the trial of issues necessary to either.

In addition to the general authority of the Orphans’ Court, to cause juries to be empanneled, in all cases, where necessary, as previously referred to, the same statute further provides, “"that when the validity of any will shall be contested, or doubts may arise, as to its validity, or as to any facts, which, in the opinion of the judge, it may be necessary to have ascertained by the verdict of a jury, before awarding any order, judgment or decree, such judge, at any stated session, oí on any sitting held in vacation, according to the provisions of this act, may, forthwith, cause a jury to be summoned and empanneled, to try such issues, or inquire of such facts, as, under his direction, shall be submitted to their decision; and shall cause them to be sworn in such form as the case may require.

It is objected, on the part of the plain tiff in error, that this was not a proper case, for the application of this power — that a jury is authorised, only in cases where doubts may arise, as to the validity of the will, &c.; and, here, it does not appear that any doubt was entertained. He, also, contends, that the word “ or,” preceding “ doubts,” in the commencement of the section, should be construed, “and,” so as to require both the contest and doubts, to authorise an issue to the jury.

I own, I cannot perceive the force of these positions. The circumstances of the case appear to have been sufficient to create doubt; especially after the tender of the several issues by the parties, in addition to the affidavit of the applicant for the probate: and, the award of the venire, implies an opinion of the necessity for an ascertainment of doubtful facts. I find no cause to suspect any typographical error, or other mistake in the words of the statute; nor do I perceive any objection to it, according to its literal import.

Then, from the language of the statute, a contest merely concerning the validity of a will, or doubts, entertained, authorises an issue to the jury. That this was the intention of the act, is, also, clearly indicated in the conclusion of the section, where the jury is required “to try such issues,” or enquire of, such facts, as shall be submitted to them : also, by the direction, that they shall “ be sworn, in such form as the case may require.” If they had been intended to try issues only, the uniform oath to try the issues submitted, would have been sufficient, and that, alone, we may presume, required.

Another conclusive answer to this objection, is, that the issues were voluntarily tendered and joined, by the parties, after which neither is at liberty to object to this mode of ascertaining the facts.

In reference to facts properly triable on issues, thus submitted, I understand the principle to be conceded, that there is no necessity, for spreading on the record, the evidence adduced on such trials; except, where a bill of exceptions is claimed, as in other cases of jury trials. — Whether conceded, or not, I think the principle sufficiently obvious.

In Chancery, where causes of this kind, as well as other controversies, are prepared for hearing before the Chancellor, the evidence appears, of course, in the form of written depositions. Then it is a matter resting in the sound discretion of the Chancellor to award a feigned issue, to inform the conscience and judgment of the Court of matters of fact involved in doubt and difficulty. The trial by "jury is supposed to afford advantages for eliciting the truth in relation to contested facts, superior to any other insti tution. But the Court alone has power, if it will, even in doubtful cases, to decide for itself, Invoking the aid of a jury; and the verdict, in such cases, is not conclusive upon the Court; it is but evidence addressed to its judgment, and if it does not 'produce conviction, it may be disregarded.

The order for an issue may be reversed by the appellate Court, but it is incumbent upon the party seeking such reversal to show, that, upon the evidence as it stood, he was clearly entitled to a decree upon the matter of fact involved in the issue.

The powers of an Orphans’ Court, and of this appellate Court are conceived to be similar, except as to the manner of adducing the evidence, and the form of proceedings.

It was therefore incumbent- on this plaintiff in er-; ror, if he conceived there was error in awarding the issue, in the trial thereof, or in the judgment of the Court, to have reserved the question by bill of exceptions. Proceeding, as we are left to presume, under this impression, after assenting to the issues and entering upon the trial, he causes points to be reserved; all we may suppose on which,' he felt himself aggrieved, in the form of a bill of exceptions; to this therefore, we must look for error, if any.

The exceptions taken disclose the ground of the second assignment of error, that the court permitted the copy of the will to be read to the jury, as evidence, on the proof adduced.

What was that proof? As heretofore shown, it was, that, before reading the copy, two of the subscribing witnesses to the original, swore that the original was executed in their presence; that the testator was of sound mind at the time; that he executed it also in the presence of a third witness; and farther, they proved the contents of the will, substantially, before the copy was exhibited to them. That another witness testified that the deceased, Cottrell, on the morning of his death, took a paper, which he said was his will, and destroyed it, (witness knowing nothing more of the contents,) and he believed he was, at the time, in a state of insanity, from intoxication.

This, it is also to be observed, was after the defendant in error, who was the applicant for the probate, claiming an interest under the will, had in the form of an affidavit, accompanying his application to the Judge, stated all the facts relied on to establish the will, and among others, that he had made diligent search among the papers of the deceased ; also, diligent enquiry among the other members of his family and his friends, could find no other will, and believed-no other existed.

No question appears to have been raised as to the necessity of his repeating these declarations before the Court, as a foundation to the secondary proof; nor as to the right of the adverse party to cross examine him, or have other questions propounded. Hence we are to presume that no right of cross-examination was denied, and that the affidavit was supposed to embrace all the requisite facts.

A party to a suit, or other interested person, competent to make proof of diligent search for, and loss of, a deed, will or other paper, so as to lay a foundation for the introduction of secondary, or inferior proof of its execution and contents; such proof being addressed solely to the Court. If the rule admits any qualification, such as, that, the person offering make the proof, was the keeper of the papers, trunk, or the like, necessary to be searched, (a restriction applying more properly to public officers,) still, this party was competent, in as much as he was the on-

ly son, and, after the death of his father, entitled to, at least, as much control as any other person. The extent of the search and enquiry made, and the authority of the party in interest to make it, were, doubtless, sufficient for the object of it, as shown by the last case referred to.

It is also to be observed, that the non existence of the will, did not rest alone on the proof by the party to the Court; he introduced before the jury evidence tending to establish the fact that the original had been actually destroyed, and under circumstances which did not affect its validity: that the testator, on the morning of his death, in a fit of insanity, had torn up a paper which he then said was his will. The declaration as to the identity of the paper is to be considered as pars res gestee, except so far as the insanity could weaken its force. I think, however, there' would be nothing extraordinary in the idea that one might be enabled perfectly to know and truly declare ' the nature of an instrument before him, while his mind was so impaired as to be incapable of either executing or revoking a will. If such was the situation of the testator at the time of destroying the instrument the language connected with the act might serve to identify the paper. Whether this was-the state and condition of the testator at the time — whether he destroyed an instrument, and how far his expressions at the time, should convince the mind repeating its identity, were questions very proper for the consideration of the jury.

The finding these questions in favor of the application for probate, could avail nothing, without the farther finding that the original will was duly executed; also, the contents; for which purpose the evidence of the other two witnesses had been introduced. If the evidence satisfied the jury on all these points, and that the contents agreed, substantially, with the copy exhibited, it was their duty to find as they did.

In Idley v. Bowen, it was ruled that the destruction of a will, even by the hands of the testator, will not amount to a revocation in law, unless he had, at the time, sufficient capacity to understand the nature and effect of the act, and that, although the in-strumentáis not in being, its contents having been satisfactorily shewn, there- is no difficulty in establishing it as a will, if it is shown to have been improperly destroyed—(see, also, Trevelyan vs. Trevelyan. ) The principle that an act resulting from insanity can not operate as a revocation of a will duly executed and published, is believed too obvious to require elaborate investigation, I therefore only add the authority of Williams on Executors, that, “if a will be wholly or partially cancelled, or destroyed by the testator whilst of unsound mind, probate will be granted of it, as it existed-in its integral state, that being ascertained.” The same authority, however, maintains, that, in such cases, the proof must be clear and satisfactory.

If the competency of two witnesses, only, to prove the due execution, and contents, of the original will; could be considered' as having been sufficiently brought in question to require the opinion of the court; I am not prepared to say that they were sufficient, especially if objected to for want of the third, and his absence unaccounted for. The will embraces real as well as personal estate, and, by statute, three subscribing witnesses are required. They' are designed to ascertain and judge, with the greatest certainty, of the testator’s capacity to dispose of his-property, as well as that he did so with requisite solemnity. Whether the heir had not the right to insist on the testimony of all three before probate could be granted, provided they were all living and within the jurisdiction of the Court, is a question, which, when duly presented, may require deliberate consideration. In the case of Chase et al. vs. Lincoln, the principle was so ruled; but it was at the same time said, if it be impossible to. produce any one of them, the Court would proceed without him ex necessitate rei. In the case of Dan vs. Bowen, (previously cited,) the will, as in this case, appeared from the testimony of two witnesses, to have been subscribed by them; and one of them further stated, that it was also subscribed by a third vt itness, whose name he did not recollect, but he had no doubt pf his being a credible witness. There, as here, the object being to establish a will, which had been lost or destroyed; the court held that this was all the evidence that could be expected under the circumstances of the case,- and that it was prima facte sufficient.

In this case, however, it is an important fact, that no objection appears to have been made below to the competency of these two witnesses alone, to prove the will; that the only objection made, or exception taken, was, that on the testimony of the two subscribing witnesses, relative to the due execution and contents of the will, and of the one other witness concerning the destruction of the original, the Court admitted the copy as evidence to the jury. It does not appear but that the absence of the third subscribing witness was accounted for; that any question was made, or any opinion of the Court given, respecting the necessity of producing him, in order to the establishment of the will. It is not shewn that any instructions to the jury were given, or requested, whether all the evidence received was sufficient for this purpose; nor does it appear what other evidence, or whether any, was adduced before the jury. Under these circumstances, I am of opinion that no error is shewn in permitting the copy to be read as evidence.

In reference to the argument that there is no sufficient shewing that the testator remained insane, after the destruction of his will until his death, so as to prevent his supplying a new one, had he chosen not to die intestate; and to any other objection respecting the extent of the questions propounded, and answered, it is deemed sufficient to remark, that the issues were sufficient to embrace the entire controversy, and the jury having passed upon it, the legal presumption is, in the absence of any shewing to the contrary, that the evidence justified the verdict; and as to the continued insanity of the testator, if proof to this effect were admitted to have been necessary, the evidence of his having been so on the day — '“on the morning of his death,” — might justify the inference that it continued until the moment. Or if the contrary presumption could be indulged, a knowledge or recollection of the acts of his insanity, would by no means follow, as a necessary consequence of the restoration of his reason. It is therefore unnecessary to inquire on whom the burthen of proof, in this respect, devolved; or, whether, supposing him to have had the subsequent knowledge, some public recognition of the validity of the insane act, was not necessary to give it effect. This view of the subject derives additional force from the consideration that these, with other objections were embraced by the issues to the jury, and no question in relation to them has been reserved by the bill of exceptions.

In my opinion, the judgment of the Orphans’ Court should be affirmed, and such is the unanimous pjpinion of the Court.

       2RoP. on Leg. 531.

       Ib. 532.-3Moriv171-7 Br. P.C. 437

      6 Wendel 173

       Aik.Dig.348 9.

       Aik. Dig.251

      2 Atkyn’s R. 295-2 Vesey's R. 256-Ber'd Ch. R. 100

       11 Wend. R. 227

       Id.

       1 Star. Ev. 349, note 1 and refer's-4 Cowen 483; 6 Wen 178.

       4 Cow 490

       11 Wend. 227

      1 Phil;153

      1 vol. 209.

      3 Mass.R. 286


source: Caselaw Access Project

author: Saffold, C. J.

license: Public Domain

text:
    SIMMONS versus AUGUSTIN.
    QUESTIONS IN THIS CASE.

      As to the competency of one to execute a valid convey« anee of realty, in consideration of natural love and affection, under a provision that the deed shall take effect in futuro.

      As to the title to lands, granted to one, and the heirs of his body, between the issue of the donee, and a purchaser.

      The construction of the statute of 1812, upon the subject of estates in fee tail, &c.

      The construction of a particular deed.

    1. In this State, the freehold of lands to take effect in futuro, may be conveyed by a grantor to the grantee and his heirs, upon the consideration of natural love and affection, without livery of seizen, where the deed reserves to the grantor a life estate in the premises; and such reservation will be construed into a covenant to stand seized to the use of the grantee.
    2. A deed “giving and granting” lands to one, “and the heirs of his body forevei;, after the demise of the grantor;” held to be sufficient in its terms for this purpose.
    3. Where a deed of lands by one to his two sons, expressed a limitation to the donees, “and the legal heirs of their bodies forever;” held that such deed created an estate tail, in the donees, and was embraced within the meaning of the act of 1812.
    4. Under the statute of 1812, a limitation by deed, of real estate to a succession of donees, will not be deemed valid without the adoption of the terms prescribed in that statute; and a clause, that in default of heirs of the body of the remainder man, the estate shall revert to the right heirs of the donor in fee simple.

    5• To give a deed passing real estate, validity, under this statute, the limitation and reversion must be declared by express words; and where a deed contains no clause adopting the terms of the statute and the limitation there prescribed, the 4onee takes an absolute estate in fee simple.

      This was an action of trespass to try titles, brought in the Circuit Court of Autauga, by the next friend of Martha Augustin, an infant.
    The lands, the subject of the suit, were held by the plaintiff in error, under a regular conveyance, by deed, from Thomas J. Augustin, the father of Martha: and she claimed, under a deed, made by her grand father, William J. Augustin, to her father, Thomas J., and his brother, Henry W. Augustin.-^-And the deed was as follows :
    “ The StateA of Alabam\ l Entailed deed of gift. Autauga County. 3
    “ Know all men, by these presents, that I, William J. Augustin, of the State and county aforesaid, for, and in consideration of the natural love and affection, which I bear to my sons, Henry W., and Thomas J.-Augustin, as well as for the further consideration of one pepper-corn, to me in hand paid, by the said Henry W. and Thomas J., at or before the sealing and delivery of these presents, the receipt whereof, is hereby acknowledged, have given and granted, and, by these presents, do give and grant, unto the said Henry W. and Thomas J., and the legal heirs of their bodies, forever, after the demise of the said William J. — Also, that the following lands, to be described, and to be equally divided between the said' Henry W. and Thomas J., are in no wise to be made subject to any debts, contracts or conveyances, that the said Henry W. and Thomas J. may make to any person or persons — as the true intent and meaning of this deed is, that the lands to be described, are to remain with them or their legal heirs, forever. — All that fraction west of the Alabama river,1 section No. 23, in township, No. 17, of range, No. 12, containing three hundred and twenty acres — -To have and to hold the said described land, unto them above mentioned, and in the manner above described.

      “ In witness whereof, I have hereunto' put my hand and seal, this twenty-eighth day of September, in the year of our Lord, one thousand eight hundred and twenty-four, and in the forty-eighth year of the Independence of America.
    “william j. augustin. [l.s.]
    “Signed, sealed, and acknowledged, ? in the presence of, 5
    “ Griffin L. Hogans.
    “James D. Goss.
    “ Nathaniel Haws.”
    The bill of exceptions, taken in the cause, stated, that the plaintiff below produced to the jury, the' above deed; and proved the death of said William J. Augustin, and the death of the said Thomas J. Augustin; and, that she was the sole child of the latter.
    The defendant, in defence, introduced a deed made to one Ezell, by Thomas J. Augustin; and a regular conveyance from Ezell, to himself, (Simmons,) of the lands, in question.
    The court charged the jury, upon this evidence,that the said deed of William J. Augustin, was such as was authorised by the laws of this State; and, that, under the deed, Thomas J. Augustin, after the demise of William J., the father, took a life estate, only, in the lands; and, that Thomas J. Augustin had no right to convey the premises, for a longer term; and, that no greater title than a life estate passed to Ezell and Simmons, under the deed, from Thomas J. Augustin. — That the infant child of Tho-* mas J, was entitled to the premises ; and, that if sa--tisfied of her heirship, and the identity of the land, the jury must return a verdict for the plaintiff.
    The exceptions further disclosed, that proof was made,, that Henry Augustin was still living, and-also,- children of his body. — That, the counsel for the defendant requested the court to charge the jury,that the plaintiff, if entitled to-recover the lands, was only entitled jointly with the said Henry, or with his children — the plaintiff having shewn, from the records of the Orphans’ Court of Autauga, that commissioners had been appointed, • under an order of that Court, to make partition of the lands, held under the deed; and that they had made due return, allotting the premises sued for, to the said Thomas J. Augustin, in his life-time — ‘the Court refused to give the instructions, asked ; and charged, that it was not necessary, for the said Henry Augustin,- or his children, to join in the action here — no objection having been made to the regularity of the proceedings-on partition.
    It was further shewn, that in reference to some contrariety of evidence, as to the plaintiff being in existence, at the time of the death of Thomas J. Au-gustin, the court was requested, to charge, that, if the jury believed that the plaintiff was not in being,at the. time of her father’s death, then the lands mentioned in the deed, would revert to the right heirs of the donor. The court refused, and informed the jury, that it was indifferent, whether, at that • time, Martha, the child, was alive, or not: her rights were the same; and, she was equally entitled, under the deed of the ancestor.
    A verdict was thereupon rendered, for the plaintiff in the action; and an appeal, by the defendant, prayed to this court.

      Mr. Hopkins, for appellant.
    The statute declares, that every estate tail that existed at its enactment, or' might afterwards be created, should be a fee simple. No one can doubt the effect of the statute upon the estates tail, which had.been granted before its passage. It was to convert them into estates in fee simple, and to give the fees to the persons, who were then tenants in tail. The proviso was prospective in its operation — it authorised future conveyances to be made, in the mode that is prescribed in it; but, such conveyances must be of the estates of those who might make them, and could not affect the right to a fee simple, which the statute gave to him, who was tenant in tail at the time of the enactment of it. As the statute declares, that every estate tail, created after its passage, shall be a fee simple, in the donee, in the same terms, in which it changes every estate tail, that then existed, into a fee simple, the conclusion cannot be avoided, that the legislature intended, that every grant, which might be made after the enactment of the statute, in the same language of those that it converted into pure fees, should convey a fee simple to the grantee. In a grant of an estate tail, there is but one limitation. Even, if a grant be made to A, for life, and the remainder to the heirs of his body, the legal effect of it, according to the rule in Shelly’s case, is that it is one limitation of an estate tail to A. Such, a grant, existing at the date of the statute, was changed, by it into the conveyance of a pure fee, to him, who was tenant in tail; and, just such a grant, made since, the legislature intended should corivey the fee simple to the grantee — because they have said it should do so.
    A conveyance, founded upon the proviso of the statute, is a different thing from a simple grant, consisting of one limitation only, of an estate tail. In a coveyance, authorised by the proviso, there must be three limitations. If there be two living donees in the grant, to whom the estate is successively li-mitted, there must be a limitation of a certain, separate and exclusive interest in the estate to the first — ■ because his interest must be ascertained by the conveyance,- and at the limit appointed for its termination, would be the commencement of the interest of the succeeding living donee. If there be but one living donee, his interest must be granted with certainty, because it is separate and exclusive of the estate, limited to the heirs of his body; as the interest of the first living donee is separate from, and exclusive of that of a succeeding living donee.
    lo.' a conveyance, therefore, to one living donee, the point at which his interest must terminate, must be described — because it is the only feature, in such a grant, which shows the line of separation, between the interest of the living donee, and that intended, by the remainder, for the heirs of his body.
    If a grant be merely to A, and the heirs of his body, it would be uncertain, although the third limitation, required by the proviso, might be inserted, at what time the grantor intended the interest of the heirs of the body to commence — whether at their birth, or at the death of their parent. So, if there were a grant, merely to be enjoyed by A, first, and next by B, who were both living, without ascertaining the quantity of the interest of each, the limitation would not be made, as the statute requires.
    Under the proviso, a term of years, as well as a life estate may be limited, to a living donee. In a conveyance, with three limitations, made pursuant to the proviso, the rule in Shelly’s case, would not be'applicable — although the first might be to the living donee, for life; because a rule of the common law, cannot operate upon limitations which the proviso authorises to be made in a conveyance, introduced by the proviso. Such a conveyance,' with three limitations, the last being, as the proviso directs, to the right heirs of the donor, would not be an estate tail — because the proviso distinguishes such a grant, from the grant of a fee tail. But, such a conveyance, without the proviso in the statute, would be a fee tail, and, consequently a fee simple. Every statute should be so construed, as to give effect to every part of it.
    The intention of the legislature, was, that some estates tail, created after the passage of the act, should be fees simple. They have declared, that all should be; but, if any one granted since the enactment of the statute, must be a pure fee, then all,- created by the same words, must be.
    The intention of the legislature, was, that all fees tail, created after the act, should be as pure fees, as the fees tail, existing at the date of the statute, were made, by the effect of it.
    But, according to the construction of the statute, given by the counsel for the defendant in error, no estate tail, created since its enactment, is a fee simple : every grant of a fee tail, is an estate for life, to the donee, and in fee simple to the heirs of his body. This exposition of the statute, is made, regardless of the express declaration, in the act, that every estate tail, created after its passage, should be a fee simple; and, as though the statute contained no such enactment. The construction denies any effect to the body of the statute.
    If every conveyance of a fee tail, made since the statute, without any other limitation in the deed, be deemed a fee simple, effect will be given to the body of the statute; but, if the deed, creating the estate, have the three limitations, which the proviso is believed to require — or, at least, two limitations, one of an estate tail, and the second, of the estate to the right heirs of the donor, in the event of the death of the donee, without heirs living at his death, it would present a case, upon which the proviso would take effect.
    Without the proviso in the act, the creation of a fee tail, would transfer the fee simple, from the donor to the donee, although the latter might never have an heir of his body. With the proviso, the donor has power, in the event of the donee’s having no heirs of his body, to limit the estate to his own right heirs.
    Our construction of the statute, therefore, gives effect to both the body, and the proviso of the statute. The power offered by the proviso, may be exercised, or rejected, as the donor may choose. If he make a grant to A, and the heirs of his body, he gives what was formerly a fee tail, but, under the statute, it is a fee simple; and, if the deed have no other limitation, there is no reversion in the donor. But, he may, in the same deed, and, as a part of it, in virtue of the power of which the proviso is the source, limit the estate, in the event which has been mentioned, to his own right heirs. Should he do so, he would not part with the fee simple — he would retain it, till heirs of the body of the donee should be ascertained — to whom, should there be any, the fee simple would pass, in virtue of the limitation to them : should there be none, the fee simple would pass to the right heirs of the donor, in virtue of the limitation over.
    It has been asked why we insist that the proviso requires the limitation to the right heirs of the donor? Does not the reversion, upon the creation of a fee tail, remain in the grantor; which may, at some future time, return to him, or his right heirs? In England now, and in this country before the statute, the creation of a fee tail, was the grant of less than the whole quantity of interest in a fee simple, and while it was so, a grant of a fee tail left an interest in the grantor, which might return to him or his heirs, without a limitation to them, and which he, or they, might sell. But, since the statute, a grant of a fee tail, in this State, if there be nothing more in the deed than is necessary to create an estate tail, is a grant of afee simple.
    The statute has made a grant to A, and the heirs of his body, or to one for life, and’ the remainder to heirs of his body, as appropriate to convey a fee simple, as one to him and his heirs is. The same effect must now be given to a grant to one, and the heirs of his body, as to a grant to one and his heirs. The same construction must be put upon a deed containing the former words, as though the effect allowed to the words by the statute, were, and. always had been given to them by the common law. The truth of the proposition, that upon a grant of a fee tail, which, according to the English law, leaves an interest in the grantor, which will be preserved without a limitation of it to his own heirs, it is unnecessary to make such a limitation, does not prove that, upon a grant in fee simple, in this State, which, unaccompanied by any other limitation, leaves nothing in the grantor, it is unnecessary to make such limitation as the proviso requires, to the donor’s right heirs. A grant in fee tail, is here a grant in fee simple, which will pass the whole estate of the donor from him to the donee, unless there be an addiiional limitation in the deed to his owm right heirs, the effect of which would be to retain the fee simple in himself. If such a limitation were not authorised by the statute, the fee simple could not be prevented from passing to the donee by any common law deed. The common law permits a person by executory devise, to grant a fee simple to a devisee, and by the same devise, to limit the same fee to another person, in the event of the first person dying without heirs living at thr time of his death. But if the devisor devise in fee simple, and omit to make a proper limitation over of the same estate, the first devise carries the whole estate — the.fee simple. 'This right to devise a fee simple, and to modify the devise by another limitation in the will of the devisor, is peculiar to executory devises. Grantors by deed have no corresponding right. (Fearn on Remainders and Executory Devises, 443, ’4.)

      Our statute has given to grantors by deed, a similar right, and it must be exercised as if it were derived from the common law — it'must be exercised as the right to devise a fee simple, and then to qualify the devise by a limitation over it. As a devise of a fee simple, without any limitation over, passes the fee simple from the devisor to the devisee: so a grant by. deed under our statute, in fee simple, without any limitation over, must pass a pure fee to the grantee or donee.
    If our legislature had intended that the creation of an estate tail, should give a life estate to the.donee, and a fee simple to the heirs of his body, our act, instead of being as it is, would be like the statute of New Jersey, by which such an effect is expressly given to estates tail. Had such been their intention, the statute would have given in the fees tail that then existed, estates for life to the donees, and in 'fee simple to their heirs.
    The case of an estate tail existing at. the passage of the act, with a limitation in the deed, that created it to the heirs of the donor, which the counsel for the defendant in error has stated, as an instance in which the whole fee simple was vested, by the effect of the statute, in the donee, does not show that our first proposition is untrue; the meaning of the proposition is, that every grant that existed at the passage of the act, and contained words proper and necessary to create a fee tail, was changed, by the act, into a fee simple; and that every grant made since, if it contain the same proper and necessary words to create a fee tail, is a conveyance of the fee simple.— Before the act, a limitation of the reversion to the donor’s heirs, in a grant of a fee tail, was useless and inoperative. The reversion belonged to him and was as well secured to him and his heirs, by operation of law, without as with the limitation. But, since the act, a grant, in words that before created an estate tail, is a conveyance of a fee simple, unless a limitation to the grantor’s heirs be added, to retain the fee simple in the grantor, till it be ascertained whether the donee shall have heirs of his body to take it. A devise, before the act, of a fee tail, left a reversion in the devisor; but now it would convey the fee simple. As a devise is a coveyance, there might be a devise under the proviso of a fee simple, in words which formerly created a fee tail, with a limitation to the devisor’s heirs, the effect of which would be to prevent the fee simple from passing from the devisor till the devisee should have heirs of his body. If a grant were made to A and his heirs, with a declaration of the grantor, in the deed, that he should have no power to convey, or to charge the estate with his debts, it would vest the fee simple in A, and the restraint would be void. As the grantor had legally conveyed the whole estate to A, and expressed the intention that he should never part with it, a court could not determine that a life estate only had been conveyed, or that the grantor had expressed what he had not — an intention that the grantee should have a life estate only. In this case a fee simple has been granted, in words, made proper by the act, to convey one. The restraints which the grantor desired to impose, are void. The grantor has not expressed his intention that his son should have a life estate, but he has said his intention was, that the estate should remain with his son, and his heirs forever; showing he intended what the law does not permit, that his son should first have the whole interest in the estate, and after his death the heirs of his son should have the whole interest. If the son of the grantor had died without having had a child, can any one doubt that the land would have belonged to the son’s estate? But if it be a life estate in the son upon his death, without having had any children, it would belong to the estate of the grantor.

      Mr. Goldthwaite, for appellee.
    The defendant in error readily admits, that the statute intended to change all fees tail, which existed as such at the time of its passage, into fees simple, no matter by what words they had been created. It might well be questioned, however, whether the legislature possessed the constitutional power to divest the grantor of his estate in reversion, or the issue in tail of their estate in remainder, particularly in cases where it had become vested by their beihg in esse-. Without adverting to this question, it may be assumed, that the enacting words of this statute are sufi ficient to change all fees tail then existing, into fees simple.
    With this admission, the consequence contended for by the plaintiff in'errror does not follow; his pn> position is, “ that the legislature intended that any grant which might be made after the enactment of the statute, in the same language of those which by it were converted into pure fees, should also convey fees simple to the grantees.”
    Let this proposition be examined. Previous to the statute, a grant to A, and the heirs of his body, would have left a reversion to the grantor and his heirs. So would a grant to A for life, with remainder to the heirs of his body. The reversionary estate of the grantor, in both of these cases, would arise by implication, but they would, nevertheless, have been pure estates tail. Would the addition of words expressing this reservation of the interest of the grant- or, have changed the character of the estate granted, or have changed it from a fee tail to something else? Let us see; a grant to A, and the heirs of his body, and in default thereof, to the right heirs of the grant- or. Would not this be as pure and absolute a fee tail as either of the other estates? If this would not be an estate in tail, what would it be? And, if such an estate had have existed, at the passage of the act referred to, would it not, by its operation, have been changed into an estate in fee? And can any one assert, that if such an estate was now to be created, that it would, by the operation of that statute, be changed into an estate in fee simple? For it will be observed that it is in the very identical words of the exception of the statute. Therefore, the proposition of the plaintiff in error, cannot be true.
    The next position of the plaintiff in error is,that all the various limitations introduced into the exception of the statute, must be strictly pursued in the indentical words. He even contends for a step beyond this, that the termination and commencement of the successive estates, must be determined by the words of the grant. Now it will readily be admitted, that it must appear to have been the grantor’s intention to limit the estate of the first, or each successive donee, but that the manner and words of expressing this intention, can make no difference; that any words may be made use of, and whenever the intention can be ascertained, that intention will be carried into effect. There can be no doubt but that a grant in the very terms made use of in the statute, would be effectual to convey an estate to the issue of the donee; and yet, according to the argument submitted, it would not, be sufficient for that purpose, for two reasons, first, because no time would be shewn when the estate of the first do-nee was to terminate, or the estate of the issue to commence. Second, a gift to A, and the heirs of his body, and in default of such heirs, to the right heirs of the donor, would, it is contended be defective, and pass nothing to the héirs of the body of A, because it did not state when the interest of A was to terminate, and because it did not shew when the interest of the heirs of the body of A, uas to commence — whether at their birth or at the death of A. It would be likewise defective, according to the argument of the counsel for the plaintiff in error, because it did not specify that the heirs of A, must be heirs living at the time of his death. Now both these matters are supplied by intendments of law. A, shall take the largest estate which he can take by the words of the grant, which shall be most favorably construed for him, and the heirs of his body can not be known till his death, nam nemo est hceris viveniis. It is not conceded, that, if a grant was made to A and B, to be enjoyed by A first, that the same would necessarily be void, because the legal intendment of such a grant would be, that A should have the greatest estate which the words would give to him, which would be a life estate; no words of procreation being used, he would then take a life estate, and B would take a life estate after the death of A.

      The next proposition of the plaintiff in error, is, that the intention of the legislature, was that some estates tail, created after the passage of the act, should he estates in fee simple ; and, if any one fee tail, granted since the enactment of the statute, must be a fee simple, then all fees tail, created by the same words, must be fees simple, also.
    Perhaps there is nothing in this proposition, which calls for direct refutation: it might safely be admitted that the legislature did intend to make some fees tail, created after the statute, fees simple, and, the consequence would be] inevitable, that if any were so intended, all, created in the same language, would be so, too. But, wherever the intention of the donor was clear, that the first donee in tail, should only take a life ' estate, and that the estate should pass,' through him, to the heirs of his body, the statute could have full operation, both in the creating clause, and in the proviso. Although' I .am by no means clear, that all estates tail, created after the passage of the statute, should not be fees simple, in the first generation, still, such a construction could be given, as would avoid this difficulty: although, it might be held, that some estates tail, created after the passage of the statute, must, by it, be turñed into fees simple, it, by no means, follows, that all must.
    If the donor were to grant to A, and the heirs of his body, without shewing, by any words, his intention to limit the estate to A, it might be doing no injustice to say, that this estate tail, should, by the operation of the statute, be turned into an estate in fee simple; but, if the grantor, by the use of any words, expressed his intention that A shall not haye more than a life estate, then that intention could be carried into effect, and no violence done to the statute. A grant to A, for life, remainder to heirs of his body, would express the intention of the grantor, and would convey the fee simple to his heirs.
    So a grant, in the terms of this donation, where the intention is so clearly expressed, that the first donee shall take nothing but a limited estate, would shew a strong case, where the intention of the grant- or should be carried into effect.
    Any other construction than this, to be given to the statute, would, in effect, be saying, that no matter how plainly soever, the intention might appear, yet, unless that intention was expressed, in the technical language of the statute, no effect should be given to it: and, thus, in effect, say to every citizen in the community, that he should employ, not merely a conveyancer, but the ablest counsel in the community, to give effect to his donation.
    The fourth proposition of the plaintiff in error, is, that the intention of the legislature was, that all fees tail, created after the passage of the act, should be as pure fees simple, as those fees tail, which existed at the date of the statute, were made, by the effect of it.
    This construction of the statute, wrould entirely destroy the effect of the proviso — for, it is clear, that the estate, designated in the proviso, is a fee tail; and I think, it has been made to appear, that an identical estate with the one in the proviso, would, if existing at the date of the statute, have been turned into a fee simple. The words of the statute are, “every estate, which exists, in fee tail,” shall be a fee simple; no exception, whatever, is made: but, as to estates, hereafter to be created, a modified estate tail may be permitted to exist.
    In relation to the only other point assumed by the argument of the plaintiff in error — that this case is to be governed by the same rules as apply to the case of executory devises, where a fee simple is limited on a fee simple, it is not perceived what application the one has to the other.' — In the case of a limitation over, by way of executory devise, it does not follow, that, because the davise over is too uncertain, to have any operation, that it would enlarge a previous estate granted; and, I might here ask to show the whole want of application of the last point, if a limitation over, to one of the donee’s right heirs would not be good.
    Suppose a grant to A, for life, remainder to the heirs of his body, and, in default-of such heirs of his body living, at the time of his death, to the eldest son of the grantor, in fee, would not such a limitation be good 1

    To conclude, the construction, which the defendant in error insists, should be given to the statute, is this, that by the enacting clause of the statute, all estates tail were changed into fees simple. — That the proviso of the statute was not intended to operate, nor did it operate on estates tail, as then ’ existing ; but, that it permitted them to be afterwards created, so as to vest a life estate only, in the first donee, and an estate in fee simple, in the heirs of his body, if he had any such, living, at the time of his death— and, if he had none, it reverted to the grantor or his right heirs, in fee : that, this reversion was an estate that might either arise by express limitation, or by operation of law; and, that the grantor might vest the reversion, bp such devise, or otherwise, in whom he chose. — That an estate tail, created after the passage of the act, would perhaps, be turned into a fee simple, unless the donor should, by some express words, indicate that the first donee should only take a life estate; and, that whenever such intention was expressed, or clearly indicated by the terms of the grant, that it should and ought to be carried into effect. — That, the evil intended to be prevented, was a perpetuity of estates, not to prevent a provision for' grand children — that this object is permitted and sanctioned by the legislature; and, it seems, that it should be the province of the courts, to advance this object, by giving full effect to thé intention of the gran tor.---That it would be manifestly unjust, be cause the donor, in this case, perhaps, intended to go further than the law permitted, that he should not provide for his grand-children, which was clearly one of his objects. — And, that it would be sacrificing his intention, entirely, to permit an estate, which, he most unquestionably, intended to be for no greater period than the life of his sons, to be turned into a fee simple.
   Saffold, C. J.

The action was trespass to try titles, instituted by Martha Augustin, an infant, by. hen next friend. The object was to recover of Simmons,the premises in dispute, and damages for the detention.

A recovery was had accordingly, with a view to reverse which, Simmons prosecutes this writ of error.

The bill of exceptions shews that the claim in favor of Martha Augustin, was derived from a deed of gift, executed by her grandfather, William J. August tin, on the first of September, 1824, whereby the land now in question, with other parcels, (which others have, by partition been allotted to another and this said Martha’s, deceased father,) were conveyed, in an informal manner, as follows:

“ Know all men by these presents, that I, William J. Augustin, of,” &c. “for, and in consideration of, the natural love and affection which I bear to my sons, Henry W. and Thomas J. Augustin, as well as for the further consideration of one pepper corn, to me in hand paid,” &c. “ have given and granted, and by these presents do give and grant, unto the said Henry W- and Thomas J., and the legal heirs of their bodies forever, after the demise of the said William J. Also, that the following lands to be described, and to be equally divided between the said Henry W. and Thomas J., and are in no wise to be made subject to any debts, contracts and conveyances that the said Henry W. and Thomas J. may make to any person or persons; as the true intent and meaning of this deed is, that the lands to be described are to remain with them and their legal heirs forever.” (After here describing the land, the deed proceeds:) “To have and to hold the said described land unto them above mentioned, and in the manner above described. In testimony,” &c.

The plaintiff below further proved the death of W'm. J. and of his son Thomas J., and that she was the sole child of the latter. The defendant below, then produced a deed, made to John Ezell, by said Thomas J., and a regular conveyance, from Ezell, to himself.

Upon this evidence, the court charged the jury, that the deed of William J. Augustin, was such as was permitted by the laws of the State : and that, under said deed, Thomas J. Augustin, after the demise of his father, took a life estate only, in the said estateand that he had no right to sell or convey said premises, for a greater period. — That no longer title than the life estate of the said Augus-tin, passed to said Ezell and Simmons, under their purchase of said premises, from Thomas J. Augus-tin. — That the infant child of the said Thomas J; Augustin, was entitled to said premises; and, that, under the law, arising from the deed of the said William J. Augustin, the jury must return their verdict for the plaintiff, if satisfied of the heirship^ and identity of the land in question.

On the trial, it was also proved, that Henry Augustin was still in life, and had children living. The counsel for the defendant requested the Court to charge the jury, that the plaintiff, if entitled to recover the land in question, was only entitled joint ly with the said Henry, or his chiidten.

The plaintiff having produced an order of the County Court, appointing comrnissionersj to make partition of said land, and also, produced, from the record, the return made by said commissioners, and proved, that the land, described in the plaintiff’s declaration,. was allotted to the said Thomas J. Augus-tin, in his life-time, the court refused to charge, as requested : and, charged the jury, that it was not necessary, that the said Henry, or his children, should join in the suit — no objection being made to the regularity of the partition.

Some of the witnesses testified that the plaintiff below, was not in being, at the ttme of her father’s death — others, that she was previously born. On. this contrariety of testimony, the defendant’s counsel requested the Court; to charge the jury, that if they believed the plaintiff was not in being, St the time of the death of the said Thomas J., her father, that, then, the lands in contest, reverted to the right heirs of the donor — which charge the Court refused, and charged, that, whether the plaintiff was in being, at the death of Thomas J., or was born afterwards, her rights were the same, and she was equally entitled, under the deed of her grand-father — to all which the defendant excepted.

It is here assigned as cause of error — that the Circuit judge instructed the jury, as above stated, and refused to charge them, in the different manner, as requested.

Haying reference to the course of the argument, and the principles of law, necessarily involved in the controversy, the following questions are believed to embrace the entire merits of the case.

First — Was-it competent for William J. Augus-tin to execute a valid conveyance of a free-hold, to his sons, in consideration of natural love and affection, without livery of seizen; but, under a provision, that the deed should take effect, not in prcesenti, but, after the death of the grantor : if so, is this deed sufficient for the purpose ?

Second — Do the expressions of the deed, import an estate tail — such as the statute of this State declares to be an absolute fee: or, are the limitations, authorised by the statute, sufficiently expressed, to render them valid, as such, and deny the grantees ' the power of alienation?

1. So far as seizen of the premises, at the time of the grant, may be deemed material, it may well be assumed, that the grantor was then in the quiet enjoyment. The contrary does not appear: no opinion of the Court is shewn to have been expressed, or requested, or any question raised, on the trial, respecting it. We cannot, therefore, presume any such deficiency of proof.

The language of the deed, viz: “ Have given and granted, and by these presents, do give and grant, unto the said' Henry W. and Thomas J., and the legal heirs of their bodies, forever, after the demise of the said William J.f &c. is believed sufficiently to imply a reservation of the premises to the use of himself, the said William J. during, his life, and until the grant should take effect in favor of the grantees. The force and effect of the words “after the demise of the said Wm. J.” is the same as any more formal reservation of this interest would be.

In Jackson vs. Swart, it was held that a deed bargain and sale for a pecuniary consideration, of a fee, to commence in futuro,’ will operate as a covenant to stand seized to the use of the persons within the consideration, according to the intention of the party, without any technical or formal words for that purpose. There, the deed was executed by husband and wife, the title being in the former, and the latter joining in the deed merely to release her claim of dower. Following-the description of the premises, in the deed, were these words: “ It is understood that the parties of the first part, reserve to themselves th.e use of the premises during their natural lives.” On this clause the court also ruled that the deed could not operate as a reservation or exception in favor of the wife, who had survived, for the reason that she had no sufficient title or interest in the land; jet that it had effect and operation of a covenant to stand seized to the use of the husband during his life, and after his death to the use of his wife for her life. It was there also maintained that the language of the reservation was sufficient; that, for this purpose no technical words are required, “such as that the grantor covenants to stand seized to the use of A,” &c.; but that any other words will create a covenant to stand seized, if it appear to have been the intention of the party to use them for that purpose. The authorities also show that the application of this doctrine is not confined to conveyances on valuable consideration.

In Bedell’s case, the facts were that B was seized, and he and his wife, in consideration of the natural love and affection which he had to his sons, and for their better preferment and advancement, convenanted to stand seized of the premises conveyed to the use of himself for life, and after his decease to the use of his wife for life; and, after their death, of one moiety to the use of one son, and of the other moiety to the use of the other son in tail. The question was, whether any use arose to the wife; and it was resolved, that if a man covenant to stand seized to the use of his wife, son or cousin, it- shall raise a use without any express words of consideration; and upon writ of error the judgment was affirmed, by all the judges of the Common Pleas and Barons of the Exche-

The case of Goodlitle vs. Pelts, is to the same efi-feet; and in Paget's case, it was decided, that in case, a use will arise to those who are within the consideration, though not to those who are strangers to it.

.... Sergeant Williams, in his notes on Saunders, (Chester vs. Willan,) , sustains the authority of Co. Litt. that the word “grant” is of general extent, and may amount to a grant, feoffment, gift, lease, release, confirmation, or surrender; and that it is in the election of the party to use it to which ever of these purposes he pleases. He cites the case of Crossing vs. Scudamore, where a father seized in fee, made a deed to his daughter, enrolled within six months, by which, in consideration of natural love, augmentation of her portion,-and her preferment in marriage, and other good and valuable considerations, he gave, granted, bargained and sold, aliened, enfeoffed and confirmed, unto the daughter and her heirs, the said lands; and there was a covenant that after due execution, &c., she should quietly enjoy, and also a clause of warranty, but there was no money paid, or other consideration, but what was expressed in the deed. It was held that though the deed could not insure a bargain and sale, no money having passed between the parties; yet it should operate as a covenant to stand seized. He cites various other cases in support of the same principle; and maintains that where the intent of the parties is to pass the estate, the method of doing it ought to be subservient to that end; and that though the intent of the grantor is to be regarded as to what estate is to pass, and to whom, yet it is not tobe regarded as to the manner of passing it, for of that he is supposed to be ignorant. (See Hob. 277—Earl of Clameckard’s case. )

That it was the intention of the grantor, in the case under consideration, to convey the premises to his sons and their heirs, generally or specially, to be enjoyed after his death, reserving the use of the same to himself, during his life; and, for this period, that he would remain in possession — in other words, would stand siezed for these purposes, I think is sufficiently implied by the expressions of the deed.— Then, admitting the common law doctrine, which is very clear as a general rule, that an estate of freehold cannot be created to commence in futuro', but that it .must take effect presently, either in possession or remainder; and this for the reason that no such es-pass without livery of seizen, which must, operate immediately or not at all : yet, if, during the interval, according to the import of the deed, the possession is to be enjoyed by the grantor, or any other, under a covenant to stand seized to the present use of himself; and subsequent use of the grantee, or for the entire use of the latter, the object of the law is satisfied. In such case, the inconsistency, against which this principle of law was intended to guard, the granting an estate to commence in future, by a conveyance importing an immediate possession, would not arise : the possesion would be consistent with the terms and object of the deed. As a further answer to this objection, our statute of'uses, similar to the English statute of Henry VIII. may be cited. It provides that in all cases by deed of bargain and sale, or by deed of lease and release, or by covenant to stand seized to use, or by deed operating by way of covenant to stand seized to use, the possession of the bargainor or releasor, or covenantor, shall be deemed heretofore to have been, and hereafter to be, transferred to' the bargainee, releasee, or person entitled to the use of the estate, or interest which such person hath, or shall have, in the use, as perfectly as if such bar-gainee,” &c., “ had been enfeoffed with livery of sei-zen of the lands intended to be conveyed by said deed, or covenant.”

In this case, I think, it may, also, be assumed, that the possession of the sons immediately on the execution of the deed, .was not inferior to, or materially different in principle, from that of a remaindér man, while the possession of his free-hold is' held by a tenant of the particular estate.

Hence, I conclude, it was competent for the grant- or to convey the free-hold to his sons and their heirs,reserving to himself a life interest in the premises: and, that the terms of this deed are sufficient for the purpose.

2. Then, the second question arises, relating to-the effect, under the statute, of the limitation imported by the terms of the deed.

The language of the statute is, that “ every estate in lands or slaves, which now is, or shall hereafter be created an estate in fee tail, shall, from henceforth, be an estate in fee simple; and the same shall be discharged of the conditions annexed thereto, by the common law, restraining alienation before the do-nee shall have issue, so that the donee, or person in whom the conditional fee is vested, or shall vest, shall have the same power over the said estates, as if they were pure and absolute fees. Provided, that any person may make a conveyance or demise of lands, to a succession of donees, then living, and the heir or heirs of the body of the remainder man; and, in default thereof, to the right heirs of the donor, in fee simple.”

A conditional fee, at common law, was a fee restrained to some particular heirs, exclusive of others: “as, to the heirs of a man’s body,” by which only, his lineal descendants are admitted, in exclusion of collateral heirs, &c. Under the common law merely, and before the statute de donis, the construction which prevailed, in relation to such conditional fees, was, that, on the birth of issue, such as contemplated by the grant, the condition was performed and discharged, and the estate was supposed to become absolute in tbe grantee — so far, at least, as to enable him, if he chose, to alien it, and, thereby bar, not only his oun issue, but also the donor, of his inter-est in the reversion, and to forfeit or incumber it.— To prevent which, the statute of 2 Westm. called the statute de donis, was enacted which secured to such conveyances, additional virtue.

The English Judges so construed it as to divide the estate into two parts, leaving in the donee a new kind of particular estate, which they denominated a fee tail; and, investing, in the donor, the ultimate fee simple, expectant, on .the failure of issue — which was called a reversion.

This was regarded as a residue of the fee, left in the grantor, to be enjoyed by the implied terms of the grant, at any indefinite period, when the estate created by it should expire, by the happening of the event. The statute de donis was admitted to have the effect to protect the interest of the heirs, and also of. the grantor, until the titles become so embarrassed from the difficulty in tracing the lines of lineal descent, and the restraints on alienation, together with the liability of the estates tail, to revert to the grantor, for any indefinite failure of lineal heirs, that methods were invented, and in most cases resorted to, of unfettering the estates, and subjecting them to alienation, even before issue born. This was done by fines, common recoveries, and the like. The prevention of similar complexity and uncertainty, in. land titles, within this State, was, doubtless, a main inducement to the passage of the act already quoted, abolishing and prohibiting estates tail.

Now to determine whether the estate created by the deed of William J. A. falls within the description, or definition given of an estate tail, let reference be had to such parts of the deed as must determine its true character in this respect. As the substance of so much thereof, (disregarding its informality, and transposing some of the sentences,) I give the following : That said Williám J. gave and granted unto his two sons, Henry W. and Thomas 3., and the legal heirs of their bodies, forever, to be' enjoyed after the death of the said William J., the lands described— to be equally divided between them : the same to be, in no wise subject to any debts, conveyances or other contracts, that they should make; as the true intent and meaning of the deed was, that said lands should remain with them and their legal heirs, forever. To have and to hold the same, in manner aforesaid.

If, instead of .the words, in the premises of the deed, following Henry W. and Thomas J., “"and the legal heirs of their bodies,” it had read, and their heirs, or their legal heirs, all other parts of the deed being as it is, there could have been no question but that the absolute fee was conveyed to the sons: the subsequent parts would have, been perfectly consistent with the premises, in respect to the grantees and the estate granted ; and, by the principles, even, of the common law, the language would have been entirely appropriate, for the conveyance of the unconditional estate. But, the insertion of the words, “heirs of their bodies,” according to their common law import, would necessarily operate as a limitation of the estate, to the grantee and his lineal descendants, to be enjoyed, in succession, by each, during their natural lives, subject to reversion, if, at any time there should be a failure of such issue. The subsequent designation of said two grantees, and their legal heirs, is., not necessarily inconsistent with the former, as the words “legal heirs,” are no less applicable to heirs of the body, than any others.

It is, therefore, unnecessary to examine the effect of a repugnance in this respect, between different parts of a deed. The conclusion appears to me unavoidable, that the effect of this deed, according to the common law and the statute of Westminster, would be to create an estate tail.

This proposition, however, I do not understand to be particularly contested, in argument. But, on the part of the defendant in error, it is insisted, that, though the statute was intended to convert existing estates tail into absolute fees; it could not have been intended to prevent the subsequent creation of all kinds of estates tail.

The case is supposed, of a grant to A, and the heirs of his body, and, in default thereof, to the right heirs of the grantor. This, it is said, would be as pure a fee tail, as any other that could be created; and, one which, by operation of the statute, would have been changed into an absolute fee.

It is denied, however, that such an estate, created since the statute, would be changed into a fee simple: for, that it would be in the identical words of the exception of the statute.

Hence, it is contended, that the proposition of. the adverse counsel, that the legislature intended, that grants, made after the enactment of the statute, in the same language of those which, by its terms, were converted into pure fees, should also convey fees simple to the grantees, can not be true.

To this argument, which, at least has the merit of plausibility, the counsel for the plaintiff in error urges a satisfactory reply : it is, that his proposition, alluded to, means, that every grant, that existed at the passage of the act, and contained words proper and necessary to create a fee tail, was changed, by the act, into a fee simple: and, that every grant made since, if it contained the same proper and necessary words to create a fee tail, is a conveyance of the fee simple. — That, before the act, a limitation of the reversion expressed, was useless and inoperative; because it was secured by operation of law, as well without, as with an express limitation.

Remarkable as it may appear, no case, fully involving the construction of this statute, has previously occurred in this court, or of a similar one, elsewhere, within our observation. As anew question, then, and one, which, from its nature must affect a large amount of real estate, on conveyances already existing, as well as others, to be executed, it is worthy of the most deliberate consideration.

To concede to the statute, according to the argu-meat referred to, a construction which would abolish estates tail, created before its passage, and, at the same time, recognise the right of the same grant- or, or another, by the use of the same words, (they being appropriate and usual,) to create a new estate, of the same character, which would be valid, would involve an incongruity, which it is, by no means, probable, the legislature intended.

It is true, that, in England, a conveyance, such as is expressly authorised, by the proviso to the statute, would be regarded as a fee tail, and could constitute nothing else ; but, it is equally ! clear,' that a portion of the language thus to be used, would, there, be unusual and unnecessary: consequently, we are at liberty to suppose, that the legislature only intended to inhibit estates tail, created in the usual form, by providing, that the words, “heirs of the body,” should not, here, receive their technical common law operation, to limit a conveyance, so expressed, to lineal descendants, and. imply a reversion to the grantor, on the failure of such heirs. We are bound to do so, if it be found impossible, otherwise, to reconcile the general provision of the statute, with the exception, which, in this instance, appears to be the case.

Reference to another general provision, contained in the previous section of the same statute, will aid in the construction of this. It is that which declares, that “every estate in lands, whichshall be hereafter granted, conveyed or devised; although words, heretofore necessary to transfer an estate of inheritance, be not added, shall be deemed afee simple, if a less estate be not limited, by express words. This was no less an innovation upon the common law, than that relating to estates tail:, by force of this, a conveyance, which, by the common law, would have created only a life estate, for want of the word “heirs,” is made to secure a fee simple.

A principle, which it appears to have been the object of both these sections of the statute to advance, was, that there should be no implied reversion of the fee ; and, of that relating to entails, that the words, “ heirs of the body,” should also be deprived of the virtue of limiting the grant to the grantee, and his lineal descendants, for the period only of their respective lives, unless an intention of the kind, instead of being left to implication, was declared by express words, such as prescribed by the statute, that “in default thereof, (of such heirs',) then to the right heirs of the donor.”

The position assumed, in argument, that, by virtue of the statute, a conveyance to one “ and the heirs of his body,” without any other limitation expressed, operates as an estate in fee, no less than if the word “ heirs,” generally, were used, appears to be tenable, and the only view that can give effect, both to the body and proviso of the statute.

Before the statute, the words “heirs of the body,” were the proper operative words, for the creation of an estate tail — the word “ heirs,” merely, for an estate in fee simple.

Then, in as much as the statute has declared, that every estate, which then had been, or thereafter might be created an estate in fee tail, should operate as an estate in fee simple, &c., the same effect, precisely, is given to either form of expression ; and, either must operate as a fee simple, if there be no other provision in the deed, to vary the import, such as the last limitation prescribed by the statute, that, in default of heirs of the body, the estate should then revert to the right heirs of the donor, in fee simple. This limitation, also, appears indispensable, to reserve even a contingent fee in the grantor, according to the previous section cited, which gives to all conveyances the effect of fees simple, if less estates be not limited by express words.

It has never,been considered, that the words “heirs of the body,” even in England, reserved the right of reversion to the grantor, “ by express words,” but only by implication: this, it appears to have been the object of both these sections to prevent.

If the principle be conceded, as I think it must be, that under the statute, “ heirs of the body,” and “ heirs,” generally, without any other limitation expressed, import the same thing, the difficulty, on this point, must immediately vanish. The effect of this conveyance must be the. same as if the words, “heirs of their bodies,” in connection with “ heirs,” had not been inserted.

As respects the argument, that these words should constitute the heirs of the first takers, tenants in fee, after the death of their fathers, I can find no warrant for such construction. The common law import of •the words “ heirs of the body,” limited the estate to the lifetime of the heirs, as absolutely as did a grant to A, and the heirs of his body, limit his estate to the period of his life. On the same principle that these words could, or ever did deny to the tenant in tail, the absolute fee, they reserved the right of reversion.

By force of the statute, their effect has been alike varied, in both these respects. Had the legislature intended to convert estates tail, such as are imported by this conveyance, into absolute fees, in the children of the first takers, we may safely presume, that other, and more appropriate words would have been used, for this purpose. Both in England and in the United States, the words, heirs of the body,” have, in their technical acceptation, been understood to imply the reverse.

A principle of decision ever to be held sacred, is, “that where words haye long been used, in a technical sense, and have received an uniform construction, they have become a rule of property, and the construction should be adhered to; otherwise, titles to estates may be unsettled.” Then, according to this principle, the words “heirs of their bodies,” as expressed in this deed, construed, without reference to the statute, would have had the effect to constitute Henry W. and Thomas J. Augustin, tenants in tail, thereby limiting the remainder as life estates, to their lineal descendants, through succeeding generations, until the line should become extinct, then to revert to the grantor. Apart from the statute, the terms, “failure of issue,” or “dying without issue,” mean an indefinite failure of issue: and, unless accompanied by some additional clause, word or circumstance, clearly denoting a contrary intention, they must receive this construction.—Patterson vs. Ellis.

In this case nothing is expressed or implied the contrary, except under the influnce of the statute. This statute declares such shall constitute absolute fees; with the exception that lands may be conveyed “ to a succession of donees, then living, and the heir, or heirs, of the body of the remainder man, and in default thereof to the right heirs of the donor, in fee simple.”

Hence I conclude, as before intimated, that to constitute a valid limitation, by deed, as here contended for, the language prescribed in the statute, particularly the latter clause, “and in default thereof, to the right heirs of the donor in fee simple,” must be adopted; and that for the want of such, in this deed, it must, according to the direction of the statute, operate as a pure and absolute fee, in the donees; that, consequently, the title of Martha A., the issue of one of them, cannot be sustained.

I am, therefore, of opinion that the judgment of the Circuit Court must be reversed; in this the Court are unanimous. Let the cause be remandad for a new trial

      20 Jhon.R85

       Co. 133.

         2 t§ Str.

       1 Co. Rep. 154, note

       Will’s R. 676.

       2 vol. 96. note 1.

       p. 301, b. 302, a.

       1 Vent.137

       Sh.Touch 82

       3 Bt. 117

       11 Wend. 259