
    DEN EX DEM. SPACHIUS v. SPACHIUS.
    In ejectment for lands in Burlington
    A, by will, dated 13 January, 1800, devises his plantation to his son B. to be holden to him and the lawful heirs of his body forever. A dies in 1814. B the devisee, then takes possession of the premises, and remains thereon till 1831, and then dies intestate, leaving eight children, of whom C, the defendant is the third in age but the oldest son, who thereon takes possession.as heir at law.
    
      Held, that the devise to B, was an estate tail, and which descended to C, his oldest son, as heir at common law. Such course of descent was not interrupted or repealed until the passing of the act of 13th June, 1820.
    STATE OF THE CASE.
    The postea in this cause returned by Judge Ford, from the November Circuit, 1836, contains the state of the case agreed upon by the parties, and is as follows, viz.
    “Afterwards to wit on the first day of November, in the year of our Lord, one thousand, eight hundred and thirty six, at a Circuit Court held at Mount Holly, in and for the county of Burlington, before his Honor, Gabriel H. Ford, Esq. one of the Justices of the Supreme Court of the State of New Jersey, according to the form of the statute in such case made and provided, come, as well the aforesaid John Den, as the aforesaid Henry Spachius by their respective attorneys aforesaid, and the said defendant confesses lease, entry, and ouster, according to the terms of the consent rule; and in open Court the said parties agree upon the following facts and state of the case, viz: That Philip Spachius was in his life time, and at the time of his death, seized and possessed in fee of a certain farm, or plantation situate within the corporation of the city of Burlington, in the county of Burlington aforesaid, and that being so seized, he made his last will and testament as follows “I, Philip Spaciotts of the county and corporation of Burlington and State of New Jersey, being of sound mind and memory, do make and publish this for my last will and testament. First, I direct and empower my executors hereinafter named, and the survivor of them to lease out all that my plantation whereon I now dwell, lying and being in the corporation of Burlington aforesaid, for the term of four years next, after my dacease, and the moneys from the rents arisemig during the four years, together with all my personal estate, I give and bequeath as follows — Three hundred pounds theirof I give unto my six daughters to be equally devided between them, that is fifty pounds to each, namely, Hannah Richardson, Mary Kimble, Elizabeth Hayes, Margert Sytham, Prudence Taylor, and Ann Speoius, two-thirds parts of each ones Zcigacy, to be paid in one year after my decease, and the remaining one-third in fou-r years, if not convenient for my executors to collect before. Item, the remainder or residue of my personal estate, and above mentioned rent, if any their be after paying my just debts, lagacies and reasonable expenses, I give unto my son Philip Spacms. Item, all my plantation lying within the corporation of Burlington or elsewhere, I give, devise and bequeath unto my said son, Philip Spacius, to hold to him and the hiwfuU heirs of his body forever, only excepting out of the profits theirof the four years rent as herein above reserved. Lastly, I nominate and appoint my son Philip Spaehius, my son-in-law Joseph Richard, and Asa Schooley executors of this, my list will and testament. In witness whereof, I have hereunto set my hand and seal, this thir£ee?r£ day of the first month called January, in the year of our Lord eigteen hundred.” That said will was duly signed, sealed, published, and declared by said testator, to be his last will and testament in presence of the subscribing witnesses. That said testator departed this life sometime in the month of May, in the year of our Lord, eighteen hundred and fourteen, leaving said will in full force unrevoked, and that the same was duly proved and recorded according to law, and letters testamentary thereon granted to the executors therein named, on the twenty-fifth day of the same month of May. That after the decease of said testator, his son Philip Spaehius in said will named, did under said will and by virtue of the devise therein contained, enter upon and take possession of the plantation of the testator, lying in the corporation of the city of Burlington, in the county aforesaid, and held the same until his decease. ■ That said Philip Spaehius, the son and devisee, departed this life on the twenty-fifth day of December, in the year of our Lord eighteen hundred and thirty-one, intestate, and without having aliened said plantation. That he left surviving him, eight lawful children, whose names in the order of their ages are as follows, and who before the beginning of this suit had intermarried as here stated, viz: Elizabeth the eldest, married to Daniel D. Lippincott; Sarah married to Thomas Woolman; Henry Spaehius; Janette Spaehius; Mary, married to Samuel Costill; Prudence, married to John D. Beck; Phebe, married to Abraham Hooper; and John Spaehius, the youngest. That all of said children are now living. That upon the death of said Philip Spaehius, Henry Spaehius, the third child and the eldest son of said Philip, entered upon and took possession of said plantation, excluding his older and younger sisters and his brother, and taking to himself the rents, issues and profits. That he has ever since so held and possessed the same, and kept out the other children of his said father. That said plantation is the same land and premises for which this action is brought, and at the time of bringing the same, said Henry Spaehius was tenant in possession thereof, and the declaration in ejectment was duly served upon him. It is agreed between the parties, that if the Supreme Court shall be of opinion that the said plaintiff ought to recover in the suit, the said plantation and premises, or any part thereof, the judgment shall be given for the plaintiff, according to the legal rights of the respective lessors. But if said Court shall be of opinion, that said plaintiff is not entitled to recover in this suit, the said premises or any part thereof, then judgment of non-suit be entered with costs of suit.
    It is agreed that either party, be at liberty to turn this state of the case into a special verdict, and to bring a writ of error.
    
      Samuel L. Southard, Attorney of plaintiff.
    
      Charles Kinsey, Attorney of the defendant,
    Gabbiel H. Fobd.
   Fobd, J.

Philip Spachius being seized of a farm in fee simple, made his will the 13th of January, 1800, and died in 1814; by which will he devised as follows. “Item, all my plantation, I give, devise, and bequeath unto my son Philip Spachius, to be holden to him and the lawful heirs of his body forever.” The devisee took possession on the decease of the testator, and remained possessed till the twenty-fifth of December 1831, when he departed this life intestate, leaving eight living children, whose names in the order of their birth, are, Elizabeth, Sarah, Henry, Jannette, Mary, Prudence, Phebe and John. After the death of Philip the devisee, his eld.est son, Henry, took the farm into possession, and is claiming it in exclusion of the other children, as having been devised to his father in tail, and as having descended to him, as the oldest son, according to the form of the donation of it. Whereas the devise to their father, is considered by the other children, to have been a devise in fee simple, which descended to all the children as tenants in common ; and John the lessor of the plaintiff, brings this ejectment for his eighth part of the farm.

That the testator devised to his son Philip, an estate in fee tail, by the words, “to him and the lawful heirs of his body,” seems to me not to admit of a doubt. The testator does not devise it to Philip’s general heirs, he restricts it to the heir of Philip’s body; and I need not open a book át this late day, after so many hundred adjudications as we have had, to prove that a devise to a man and the heirs of his body, conveys an estate in fee tail: or that they would give a like estate in the reversion, after the determination of a term for four years, which the executors were empowered by the will to create.

If it be contended that no estate tail could be created in New Jersey, since the thirteenth of June, 1799, when all the statutes of England were abolished, and among them, that of 13 Ed. 1, estates-tail being by virtue of it; such a position can by no means be sustained; for our own statute had existed ever since 1784, {Pat 54.) which not only legalizes estates in fee-tail, but actually prescribes their descent from the first devisee in tail, and this statute was in full force both at the date of the will in question, and even after the death of the testator, not having been repealed till the 13th of June, 1820, Rev. Laws, 774. So that if the estate in fee tail, had been created by the statute 13 Ed. 1, our own act confirmed the creation of it also, and gave it its full effect till after one descent performam doni. ■ But it is a mistaken supposition that the estate was created by the statute of Westminster 2d. respecting gifts on condition. There is no such estate mentioned in it. We learn by 2 Bl. Com. 112, that after the passing of that statute, this kind of estate was carved out of a conditional fee at the common law, by judicial construction; and though this judicial construction after regulating these estates, nearly six centuries, was modified in this State in 1784; it was preserved under that modification, and never repealed till the statute of 1820. It continued to be a legal estate in New Jersey, and every where known as such, till the latter date. At the making of the will, and death of the testator, an estate in fee-tail could be created by devise, to exist as such, during the life of the devisee, and to descend at his death to his heirs according to the rules of descent at the common law. But the instant the first descent was cast, that instant, the estate was enlarged into a fee simple. I am therefore of opinion that the father of John Spacius took only an estate-tail, no part of which descended at his death, to any of his children except Henry, who took it all by descent, and is the present owner in fee-simple. Judgment therefore, must be rendered in favor of the defendant.

Ryerson, J.

I do not preceive any room for doubt in this case. The devise, under which the parties claim, was to the defendant’s father in fee tail, in the year 1814. To this inheritance the defendant, oldest son, and heir at common law, of the iirst devisee, has succeeded. Our statute of twenty-fourth May 1780, Pat. Pev. 43, “to alter the law directing the descent of real estates,” is in express words, limited to estates in fee-simple. The law is now changed by the second section of the statute “ furtner regulating the descent of real estate, passed the 13th June 1820, Pev. Laws, 774. This last statute, however, is limited in its operations, and that by its terms, to conveyances and devises, to be made after the passing of the act. In my opinion therefore, the defendant must have judgment.

I have some doubt what question the parties in this cause meant to raise. The case was submitted without any argument, or even presentation of the point or points relied on. But I can perceive no question on the case, unless it be what I have above-noticed, whether before our act of thirteenth June 1820, estates tail general, descended, in this State, to all the children, or only to the eldest son ? This seems too plain to admit of any hesitation.

Hobnbixhver, C. J. concurred in the opinions of Justices-Ford and Ryebsost.

Judgment for defendant.

Cited in Den. Richman v. Baldwin, 1 Zab. 400.  