
    [598] [*] DEN ex dem. CRANE and al. against FOGG and al.
    A devise to I. and J., and heirs of their body, and if they die without issue, to W. and his male heirs. W. takes on- default of issue of I. and J., as devisee in remainder in tail male. And on his failure of male issue, the land devised reverts to the right heirs of the testator.
    This was an action of ejectment, for a farm in Salem county, tried at the Salem Circuit, in December, 1810, before Rossexx, Justice. The jury found a special verdict, containing the whole state of the case. The substance of which is as follows: — Archibald Hamilton being seized of the premises in question, on the 13th March, 1787, made his will. The clause in his will which gave rise to the controversy, is as follows:
    “ I give and bequeath unto my two sons, Isaac Hamilton and Jacob Hamilton, all my lands, to be equally divided between them, and to them and their heirs, lawfully begotten of their own bodies; and if they cannot live peaceably together, then to divide the land, and the care of Jacob Hamilton to be left to my executrix hereafter named; and if both my two sons, Isaac Hamilton and Jacob Hamilton, should die without issue, then I give and bequeath all my lands unto [f] my son William Hamilton, and to his male heirs.”
    
      The testator, in this will, gave his personal estate among his children or grandchildren, in different portions and died seized of the premises in question in December, 1788, leaving the following children then living, viz.: William, Isaac, Jacob, Abraham, Mary, Susanna and Ann, and one granddaughter, named Elizabeth, daughter of a son by the name of Charles, and also a granddaughter, Susanna Bishop, daughter of Margaret, another daughter of the testator, who had intermarried with one Bishop. Both Charles and Margaret died in the lifetime of the testator. That Isaac [599] and Jacob, on the death of the testator, entered into the 'premises, and were seized thereof, and being so seized, died without issue of their body, neither of them having ever had any issue; that on the death of Isaac, who survived his brother Jacob, and died in 1799, William entered into the premises, and was seized thereof, and being so seized, died in 1802, leaving a widow, Elizabeth Hamilton, and seven daughters, but no sons, which widow and her daughters were together with Eogg, the defendants, Fogg being a tenant under the widow, under a lease for years, unexpired. That the lessor, Mary English, is a daughter of the testator, and one of his heirs at law; and that David English, another lessor*, is her husband, claiming in her right; that Isaac Watts Crane, the other* lessor, after the death of William Hamilton, and while his widow was in possession of the premises, purchased several distinct portions of the estate, from several of the heirs at law of the testator, which the special verdict particularly sets out. That Crane, before the commencement of this action, tendered to Elizabeth Hamilton, widow of the said William Hamilton, deceased, one of the defendants, an assignment of her dower, under his hand and seal, which she refused to receive.
    
      L. H. Stoehton, for the plaintiff.
    William Hamilton took an estate in special tail, that is, an estate [*] in tail male, and being without male issue, the estate tail was spent, and the estate reverted to the heirs of Archibald Hamilton, the original donor. He cited, Coke Lit. 27, 222; Mac. Com. 114, 115, 175; Ambler, 12; Free. Ch. 7, 172, 589.
    
    
      Leake and Ewing, for the defendant; took the following points:
    1st. William Hamilton took a fee simple, by the words of the will; and his daughters are his heirs at law.
    2d. Under our statute, Pat. 54, 78, William Hamilton is to be considered as second devisee in tail; and, therefore, by the express words of the statute, he took an absolute estate in fee.
    3d. That Crane, being out of possession when he purchased, the purchase is void at common law. Mr. Leake also contended, that at the time of making the will, and the death of the testator, the statute de donis was not in force in this State; that whenever we legislate on a subject, the English statute on the same subject, is thereby repealed; that the statutes limiting estates tail, and the supplement thereto, were passed before the making of the will, and, therefore, the English statute was not in force. The following cases were cited on the part of the defendants, 2 Stra. 734; 2 Bur. [600] 1112; 3 Bur. 1541; 2 Wil. 24; 11 Mod. Pow. on Dev. 361; Pat. 78.
    
    
      Scott and Stockton replied.
    The cause was learnedly argued at considerable length, in May Term last; and at this term the following opinions were delivered.
   Kirkpatrick, C. J.

Upon the case presented by this special verdict, I am of opinion,

1st. That the testator’s son William, took, under the will of his father, a vested remainder in tail male, in the premises in question, expectant on the death of his brothers, Isaac and Jacob, without issue.

[*] 2d. That upon the death of William, without male heirs, the ultimate remainder in fee, descended to the right heirs of Archibald Hamilton, under whom the plaintiff claims.

I think there can be no doubt but this would be the course upon the principles of the common law; and upon looking into our act limiting estates tail, and the supplement thereto, I can see nothing to alter this course.

The first part of the section upon this subject, relates to devises in tail, made before the passing the act; and in this there are certain modes of expression, which the Legislature thought it necessary to explain, by a subsequent act. From the words, “ passed through one descent since the death of the testator, and is now in the second, or remote descent from the testator,” it had been doubted by some, (and I think not without reason,) whether, if an estate tail general had been devised to A., and upon his death, had descended to his son B., it had been passed through one descent, and was in the second or more remote descent; or, whether B’s life also must have terminated, and the estate must have descended in the same line, to his son C., in order to make it a fee simple. And to explain this doubt, was the object of the supplement.

But the present being the case of devise, made after the passing of the act, we have nothing to do either with the first part of the section, or with the supplement, which goes only to explain its words. They relate to another thing.

This act, therefore, limiting estates tail, so far as it touched this case, is expressed in these words: “ All devises which shall hereafter be made in tail of any kind, shall be deemed, &c., to vest in the person to whom the same may descend, agreeably to the devise or entailment, after the decease of the first devisee, all the estate,” &c.

[601] [*] Now, if I am right in my first position, there was no descent to William. He took as a remainder-man under the will, and not as heir, after the decease of the first devisee.' So far as relates to the subject under consideration, or what these acts call the line of entailment, he was the first devisee himself. The act in question, therefore, cannot apply to him. It cannot destroy the limitation, and turn the estate in his hands, into a fee simple.

From this view of the subject, I am inclined to think, there must be judgment for the plaintiff. But, unless my brethren are perfectly satisfied, I should wish another argument as to the ability of the heirs out of possession, and having only a right of entry, to convey, &c.

[*] Bossell, J. — Archibald Hamilton, by his last will, date the 13th of March, 1787, devised to his sons Isaac and Jacob, and to their heirs, lawfully begotten of their own bodies, all his lands; and if they should die without issue, then he bequeathed these lands to his son William, and to his male heirs. Archibald, the testator, died in December, 1788. Isaac and Jacob came into possession of the lands in question, on the decease of their father, and died, one in June, 1789, the other in December following, without issue; and William took possession agreeably to the directions of the will. William died in 1802, intestate, and without male issue; but leaving seven daughters.

Two questions have been, strenuously argued before the court:

1st. Will the words in the devise to William and his male heirs, create an estate tail.

2d. After the death of Isaac and Jacob, who were the first devisees in tail, did not the possession of William, vest in him a fee simple, under the laws of this State ?

As to the first, it has been frequently adjudged, that the words “ heirs male ” in a will, create an estate tail; and some authorities go so far as to say, they are always intended of the body, in a will.

Secondly: Our act “ to pass estates in fee, by devises, and to limit estates in tail,” was passed 1784, and the explanatory act in 1786, previous to the will and death of Archibald Hamilton, and will therefore regulate the disposition of this estate as far as the devisees in such will come within their provisions.

■The second section of the act of 1784, by which estates in tail are limited, is couched in terms so obscure and uncertain, that the Legislature were induced to [*] pass the act of 1786, to explain and do away this uncertainty. It seems, however, that they have still left [602] the matter in doubt, as is abundantly proved by the present controversy. If we strike out the woi’ds in the second section of the first act, which the legislature intended to explain, and engraft the explanatory words of the second act in their place, the section would read thus: “All lands or other real estate, which have heretofore been devised in tail, and hath, agreeably to such devise or entail, been possessed by the first devisee in tail, and is the property of the next devisee in tail, after the decease of the first devisee in the line mentioned in the devise in tail, under which they may claim, shall be deemed, taken and adjudged to be the proper estate in fee simple of the possessor, provided the testator had an absolute estate in the same, and that the person in possession holdeth the same in the line of entailment mentioned and directed in such devise in tail; and all devises hereafter made in tail of any kind shall be deemed to vest in and entitle the person to whom the same may descend, agreeably to the devise or entailment, after the decease of the first devisee, to all the estate in the devised premises which the testator was entitled to. And no entailment of lands, &c., shall continue to entail the same in any case whatever, longer than the life of the person to whom the same hath been, or shall be first given or devised by such entailment.”

In searching for the intention of the Legislature, where the language of a statute is doubtful, it is a sound rule, that we look for the mischief arising under the old law, as well as the remedy meant to be applied. The mischief attending entailments under the old law, requiring legislative correction, we find unequivocally expressed in the preamble of the first mentioned act; and was, that “ devises were sometimes made in tail without limitation, whereby the heirs were put to considerable expense in docking them; for a remedy in this case, be it enacted.”

[*] We cannot suppose then that the Legislature intended to interfere with any settled rules or construction laid down in the common law canons respecting descents, the stocks from which these descents should be cast, &c. These ancient rules were left untouched, and stand on the same foundation, and must receive the same construction, as if these acts never had a being. It is an acknowledged rule, that estates tail shall go strictly in the line and manner limited and directed in the will of a testator, when this direction is not in contradiction to the law of the land. If we examine separately, every sentence of the second section of the first mentioned act, respecting the second devisee in tail, in whom, after the decease of the first devisee, an estate in fee simple wTas to vest, we find the concluding language of each sentence, in substance, the same; and it would be [603] seen that the Legislature had the above rule in their eye, whilst penning the law; else, why do we find them so careful in the choice of words, which, it appears, could only be selected to guard and secure it; — “ the line mentioned in the devise,” “provided the possessor holdeth the same in the line of entailment;” “ the person to whom the same descend, agreeably to the entailment; and lastly, “ the person to whom the same hath been, or shall be given by such entailment.” This concluding sentence, at first view, appears most strongly in favor of the defendants; but it clearly refers to the amended part of the second section, applying to estates that had already passed into the possession of the second devisee, and the words by such entailment,” must necessarily refer to the line of entailment there mentioned. All this particularity could not have been for nought; it certainly had its meaning, and it would be hard to find for it any other than the lines, stirpes, or stocks so well regulated and defined by the common law, and by which descents were cast, should be carefully protected. If this construction be correct, in the question before us, Isaac and [*] Jacob being possessed of the lands as tenants in tail general, were the first devisees in tail; and their children, whether male or female, would have been the second devisees in tail after their decease, “ in the line of entailment; ” but they dying without heirs, agreeably to the limitation of the statute, that line of entailment became extinct; and William, on this contingency happening, took possession of this estate, as the first devisee in tail male general, “in the line of entailment” mentioned in the second .devise. William dying without male heirs of his body, agreeably to the limitation of the will, the reversion of this estate is .in the heirs general of the testator; and must be distributed according to the directions of our statute. On the whole case, for the reasons given by my brother Pennington, I consider the plaintiff has a right to recover possession of such shares of this estate, as by the statute the lessors of the plaintiff are entitled to.

[t]

Pennington, J.

The first question arising in this

case is, what estate William Hamilton took under the will of his father? The will, after creating an estate tail in Isaac and Jacob, continues thus : — “ And if both my two sons, Isaac Hamilton and Jacob Hamilton, should die without issue, then I give and bequeath all my lands unto my son William, and his male heirs.” There cannot be a doubt that where lands are conveyed by a deed to a' man and his male heirs or heirs male, but that the grantee will have a fee simple. It is necessary in creating an estate tail, to designate of [604] what body the heir inheritable shall issue. But in case of wills, the law supplies the words of the body. The well known distinction between the construction of a deed and a will, causes the difference. It has been the settled law for two hundred years, that where one devises land to a man and his heirs male, that this, by construction of law, is an estate tail. Coke Lit. 37; 3 Salk. 336; Garter, 173; Hob. 33, 43; [*] 1 Vent. 338, 9; Ambler, 13, 4; Bae. 356. William Hamilton therefore took an estate in tail male, unless our act of Assembly, limiting estates in tail, Pat. 54, makes a difference. The object of that act was to break up the estate tail, after the first descent, and convert it into a fee simple in the person of the second taker, in the line of descent, marked out by the entailment. The words of the act, as it respects this case, are “all devises which shall hereafter be made in tail of any kind, shall deemed taken and adjudged to vest in, and entitle the person to whom the same may descend, agreeable to the devise or entailment, after the decease of the first devisee, to all the estate in the devised premises,” &c. It is impossible that the Legislature should have meant by, “ person to whom the same descend,” the first remainder-man in tail; the word descend wholly precludes that idea. But the counsel for the defendants contend, that the last clause in the act, restrained the testator from creating a remainder in tail; and that by attempting to do it, he has vested a fee simple in the devisee, so attempted to be made a remainder-man in tail. This clause is as follows : — “ That no entailment of any land, or other real estate, shall continue to entail the same, in any case whatever, longer than the life of the person to whom the same hath been, or shall be first given or devised by such entailment.” That is, the entailment itself shall not continue; it limits the entailment; so far the entailment shall go, and no farther. But this clause, standing alone, is far from restraining the testator or devisor from creating a remainder in tail. On a view of the whole act taken together, it is evident to my mind that the construction contended for by the counsel for the defendants is foreign from the intention of the law maker. The title of the act is to limit estates tail, not to prevent their creation. The preamble recites, as the mischief to be remedied by the act, that devises are sometimes made in tail, without limitation of time, whereby the heirs are put [*] to great expense in suing out recoveries, in order to dock such entails, for remedy, &c. The act vests in the tenant in tail, a fee simple, in all estates that have passed through one descent, are in a second and more remote descent from the testator. A supplement [605] to the act explains these words to mean, being possessed by the first devisee in tail, and now the property of the next devisee in tail, after the decease of the first devisee in the line mentioned in the devise in tail. The act then goes on, provided they hold the same in the line of descent, mentioned in the devise in tail, which by the supplement is explained to mean the line of entailment. The plain meaning of the act is, that when an entailment has been or shall be created, the entail shall not continue beyond the first descent. The word first in the concluding clause of the act refers to the donee in tail, the person to whom the estate is given in tail; the original stock of the entailment. I can perceive nothing, either in the letter or spirit of the act, to prohibit a remainder in tail from being created. It is, to be sure, limited in the same manner as the preceding entail; and that is the use and design of the act. It is said that although this construction will not create a perpetuity, yet it will tend to it. Not so. To create an entail, or a remainder in tail, which in this respect is the same thing, there must be a description of the estate in tail, a designation of the person to take the entail. Every one must perceive the difficulty in describing a person not in being, but to exist at some future period of time. Again, we are told by the counsel for the defendants that the statute de donis is not in force in New Jersey; and that we are at common law. As to this, it is sufficient at this time to say, that the statute de donis was in force in this State at the death of the testator; and I apprehend that all rights acquired under it are valid. I am, therefore, of opinion, that William Hamilton took an estate in special tail; that is, he took an estate in tail male, and having left no [*] male issue, that the estate, on his death, reverted to the heirs of Archibald Hamilton, the original donor; and that his heirs at law are entitled to the inheritance of the land. If I am correct in this, the plaintiff must recover on the demise of English. As to the demise of Crane, it is contended that he purchased of persons out of possession ; and, therefore, that the purchase is void at common law. Whether such a purchase is void in this State, is a question that will, I understand, in a short time, be submitted to the consideration of this court, and is of great importance. But I think it does not arise in this cause. The possession of Elizabeth Hamilton, the widow of William, at the time of the purchase, was either as guardian in socage to her children, the defendants, or as widow to the tenant in tail. If as guardian in socage to her children, the persons of whom Crane purchased, were tenants in common with these children; and the possession of one tenant in common is the possession [606] of the other, unless there was an ouster, which the jury have not found. If the widow is to be considered as holding the place as widow’, under our act of Assembly, until the assignment of her dower, yet I cannot consider it such a possession as would render the sale of the heir at law void, even admitting the doctrine contended for correct. The heir at law has a seizin in land. The possession of the widow is no disseizin, but a possession consistent with his right. If the tenant in tail die without issue, he in remainder, may lease the land to another before entry, 5 Com. Dig. 19. Whichever way you take it, I think the sale was valid. On the whole of this case, I am of opinion that the lessor of the plaintiff must recover nine out of sixteen parts of the premises; two-sixteenths on the demise of Jacob English and wife, and seven on the demise of Isaac Watts Crane.

Judgment for plaintiff.

Cited in Den, Young v. Robinson, 2 South. 689; Den, Ewen v. Cox, 4 Halst 10; Den, Mason v. Smith, 5 Halst. 39; Den, James v. Dubois, 1 Harr. 285; Den, Richman v. Baldwin, 1 Zab. 395. 
      
       Mr. Leake, during the argument, furnished the court with the following pedigree, which will not only throw light on the case itself, but will be of service in tracing the rights of heirs at law, under our act of Assembly, altering the law directing the descent of real estate. Pat. 43. PEDIGREE. — According to the special verdict.
      The TESTATOR 1 -Archibald Hamilton, the testator, by his first ' J wife, had
      I. Charles Hamilton, who died in 1770, before the decease of Archibald Hamilton, his father. Charles Hamilton left a daughter, Elizabeth Hamilton, who afterwards become by marriage, Elizabeth Hogbin. Elizabeth Hogbin, widow, by deed of the 2nd day of 1 CRANE, Oct., 1806, conveyed her share to Isaac Watts Crane. J Lessor. Archibald Hamilton, the testator, by his second wife, had
      II. William Hamilton, who died the eleventh day of September, 1802, intestate, and who left
      
        
      
      III. Margaret-Hamilton, Who died in October, 1787, before the decease of Archibald Hamilton, her father, Margaret Hamilton became bv marriage, Margaret Bishop, and left one child, namely, Susannah Bishop.
      Susannah Bishop, by deed of the 15th of June, 1809, 1 CRANE, conveyed her share to Isaac Watts Crane. J Lessor.
      IV. Isaac Hamilton, who died in June, 1789, without issue.
      V. Mary Hamilton, who married David English.
      David English, and Mary, his wife, are living, and lessors.
      
        VI. Susannah Hamilton, who died in August, 1797, without issue.
      VII. Jacob Hamilton, who died in December, 1789, without issue.
      VIII. Abraham Hamilton, who died in December, 1803, and who left
      1. His first son, William Hamilton.
      2. His second son.
      3. His third son.
      4. His first daughter.
      5. His second daughter.
      William Hamilton, first son of Abraham Hamilton, by deed of the 29th day of June, 1805, conveyed his share to Isaac Watts Crane. | CRANE, f Lessor.
      IX. Ann Hamilton, who died in March, 1791, without issue.
      
        
      
       