copy of the deed of gift as set forth and exhibited in the bill, It is further agreed that the court shall decree upon complainant's bill and this agreement, unconnected with defendant's answer, which is withdrawn. Chancellor COOKE was of opinion, that the absolute and entire interest in the slave, Phillis, passed by the deed from Elizabeth Strain to Agnes Brown, and that the statute of limitations barred a recovery by complainants, John Polk and his wife, and dismissed the bill, from which decree the complainant's appealed to this court. H. A. Garrett, for the complainant. By the terms of the deed from Elizabeth Strain to Agnes Brown, the latter had only a life estate in the slave mentioned in the deed, with a remainder to such of her issue as might be living at her death, and in the event of her dying without issue, the property will be revested in Elizabeth Strain, the grantor. The Chancellor based his opinion entirely upon the rule in JACKSON. April, 1836," Polk & o.hersr V Faris. JACKSON. April, 1836. Polk & others V Faris: Shellys' case, and has adhered to it with as much strictness and rigor, as did the court which decided that celebrated case. And although the rule itself may still be admitted to some extent, to stand an unbroken pillar of the feudal system, yet it has in modern times been regarded more as a question of intention, than an arbitrary and fixed rule of the common law. The reason of the rule itself has long since ceased, and no good reason can be assigned why it should not cease to exist also. Cessante ratione, cessat ipsa lex. See Co. Litt. 376 b: (Butler's Note.) The most eminent jurists of England, have upon every proper occasion endeavored to do away its operation, and it has been condemned by many celebrated jurists; vide Papillon vs. Voiee, 2 P. Wms 471: King vs. Melling, 1 Ventres 225: Legate vs. Sewel, 1 P. Wms. 87: and vide observations of Lord Mansfield, in Long vs. Laming, 2 Burrow's R. 1107. In Pennsylvania, its authority has been disregarded; Findley's lessee vs. Riddle, 2 Binneys Rep. 139; and its weight much shaken in Connecticut. 5 Day's Rep. 98: 1 Swift's Digest 81: and vide also Allen vs. Mather, 9 Connecticut Rep. 114, But, be this as it may, there is not now any fixed and invariable rule that words of limitatie shall never in any case be construed werds of purchase. Long vs. Laming, 2 Burrow 1109. The words "heirs of the body" are frequently construed as words of purchase, or as a mere designation of the person who is intended to take. And the courts, will, to effectuate the intention, seize on any word or clause in a deed or will, to take the case from without the operation of the rule. In the case before the court, the nature of the property given, and the explanation which it is believed is given to the words "heirs of her body," all tend strongly to prove the grantor only intended a life estate to Agnes Brown, with a remainder to her children. If this be the intention, it ought to be carried into effect. For it is settled that the rule may be controlled by the plain intent of the grantor or testator. The case of Lysle vs. Gray, 2 Levintz 223, in principle, Settles this. In that case the words "heirs, male of the body" were held to be words of purchase, and the evidence of intention was not stronger than in this deed. Walker vs. Snow, Palmer's Rep. 359, was a case similar in principle to that of Lysle vs. Gray. The cases of Peacock vs. Spooner, 2 Vernon Rep. 195: Daffern vs. Daffern, 2 Vernon 362: Ward vs. Bradley, 2 Vernon 23: Hogsden vs. Bussey; 2 Atkins 89: Hobert vs. Lord Stamford, 1 Bro. P. Cases 388, Bagshaw vs. Spencer, 2 Atkins 570: 577: Allgood vs. Withers, cited 2 Burrow's 1107: Long vs. Laming, 2 Burrow's Rep. 1106: Warman vs. Leaman, Finch. Rep. 279: Clare vs. Clare, Cases Tem. Talbot 21: Bakehouse vs. Wells, 10 Modern Rep. 181: Den vs. Lile, 1 Term Rep. 593, all prove most conclusively, that "heirs of the body" are indifferently construed to be either words of limitation or of purchase, according to the circumstances of each case and the intention of the grantor. In all of the above cases, the limitations were for life, with remainder to the heirs of the body, or to issue, and the issue or heirs were held to take as purchasers. But it may be objected that words of superadded limitation controled these cases; to which I answer, that the cases of Peacock vs. Spooner, Daffern vs. Daffiern, Ward vs. Brodley, Hogsden vs. Bussey, and Bagshaw vs. Spencer, had nothing in them like words of limitation superadded. The phraseology of all of them very much resembles this case, and if they are to be regarded as authorities, they may be considered as decisive of it. The above authorities fully establish the principle, that the rule in Shelly's case, is arbritary in its character; that being founded upon feudal reasons, it will not be suffered to defeat the apparent intention of the grantor, and that as before remarked, the slightest circumstance will be seized on by the courts to unfetter the case from its operation. The deed from Elizabeth Strain, carries on its face the meaning of the grantor, in words plain and intelligible. The phrase in the deed, "to the only proper use, &c. of Agnes Brown, for and during, and until the full end and term of her natural life," as strongly indicates the intention of the parties to the deed, that a remainder was intended, and that Agnes JACKSON. April, 1836 Polk & others V Faris. JACKSON, April, 1836. Polk & others V Faris Brown should only have an estate for life, as if the words "only during life" or "et non aliter," or, "if she should so long live," had been used, which words, in Hodgson vs. Bussey and other of the cases before cited, were held sufficient to take them out of the rule. Again, in putting a construction on this deed, we must look to the circumstances under which it was made. Agnes Brown was the natural daughter of the doner. She was in the language of the law "nullius filiæ," and could have no heirs, but of her body, and could be heir to no one, (Thomas Coke 171.) If she died without issue, her property would escheat, and could not by any possibility go to the mother. Do not these facts aid very much in finding out what the intention of Elizabeth Strain was? To benefit her daughter and her children, should she have any, we may suppose was her object; but if she died without children, that the State or strangers to her blood should enjoy it, cannot for a moment be supposed was ever intended or contemplated. Her intention therefore, was to give to her grand children, after the death of Agnes Brown, by the name and description of "heirs of her body" this property, and in the event there were no grand children, then to reinvest the property in herself. But it may again be objected, that although this case might fall within the rule laid down in Clare vs. Clare and Attorney General vs. Baily; yet the subsequent words in this deed, "and in default of said issue, lawfully begotten, then the said slave, &c." has enlarged the estate of Agnes Brown into an estate tail. The generality of these words, are always restrained by the slightest circumstances, to mean issue living at the time of the death of the tenant for life. 1 P. Wms. 432, 534: 3 P. Wms. 558: 2 Atkins 282: 2 T. Rep. 720. These words, when taken in connexion with the limitations which precede them, show, without doubt, the intention was to vest a remainder in the children of Agnes Brown, living at her death, and if there were none such, the property was again to vest in the donor. It is a well settled rule in limitations of ersonal property, that all the limitations are good until one yests carrying the whole estate, but when one which carries the whole interest happens to vest, all the subsequent limitations become void. Stanly vs. Leigh, 2 P. Wms. 685: Sheffield vs. Lord Orny, 2 Atkins 287. But again; the words "in default of such issue," if they have any influence at all in the construction of this deed, it is in favor of complainant's. "Issue" is always taken in deeds to be a word of purchase. Baily vs. Morris, 4 Vesey 794: Bakehouse vs. Wells, 10 Modern Rep. 181: Bagshaw vs. Spencer, 3 Atk. Rep. 570: 4 Term Rep. 299. And if the preceding limitation to the heirs of the body &c. means children of Agnes Brown, the word "such" in the subsequent limitation "will make it read," for want of such children of Agnes Brown; for the word "such" confines it to such issue as is meant by the words "heirs of her body." See Hodgson vs. Bussey, 2 Atkins 92. Indeed the authority of Hogdson vs. Bussey, and the cases. which show "issue" to be a word of purchase, conclusively prove, that if the words "heirs of the body," standing alone were to be taken as words of limitation, yet the words "such issue" afterwards used, convert them into words of purchase, and show that the donor only used them as descriptio persona. Again: the above conclusion is unavoidable, if we attend to the proper construction of the word, "then" immediately following the words "in default of such issue." The word "then" evidently refers to the death of Agnes Brown; "then," i. e. at that point of time, the subseqent limitations are to take effect. The word, "then" in a grammatical sense is an adverb of time. But in limitations of estates and in framing contingencies, it is a word of reference, and relates to the determination of the first limitation in the estate, when the contingency 2 Atkins 311: 1 P. Wms. 564. This word taken in connection with the whole instrument proves conclusively, that whatever estate was previously given to Agnes Brown, was "then", i. e. at her death to cease, and if it then ceased, the absolute property could not have been vested in her. ceases. Again: If these words in England enlarge the previous estate to an estate tail, it is to effectuate the iniention of the grantor. Here there can be no estate tail, and there is no JACKSON. April, 1836, Polk & others V Faris. |