
    
      Hall and others vs. Goodwyn and others.
    .No words of perpetuity are necessary toa deviso of lands to convey a fee simple. The Act of 1824 is a declaratory law, and therefore retrospective in its operation.,
    This was an action of trespass to try titles. The plaintiffs claimed as heirs at law of William Howell, deceased. The defendants claimed under Robert Howell, a devisee under the will of the said William Howell. If Robert took a fee under the will, the defendants were entitled to recover; if he only took a life estate, the plaintiffs were entitled to recover. The preamble of the will was in these words: “And as touching such worldly estate as it has pleased God to bless me with in this life, I give, demise, and dispose of the same in the following manner and form, after all my just debts are paid,” and the devising clause in question was in these words : “I give and bequeath unto Robert Howell, son of Arthur Howell, deceased, a tract of land containing one hundred acres, on; the south-west side of the great lake, where James Anderson formerly lived.”
    The case came on for trial in the -term, 18 — , befpre Mr. Justice Colcock, who, being of opinion that Robert Howell took afee, ordered á nonsuit. In May term, 1820, the case was argued before the then Court of Appeals in law, at Columbia, on a motion to set aside the nonsuit. That Court did set aside the nonsuit, and declared that Robert only took a life estate, and that the plaintiffs w,ere entitled to recover. See the case as reported in 2 Nott & M’Cord, 383. The case of course-went down for trial, and coming on before Mr. Justice Richardson- — Desaussure, for the defendants again moved for a nonsuit, and relied on the act of 1824, which-dispenses with the necessity, of words of perpetuity, and urged the arguments made by Preston, in the case of Boatwright vs. Faust, (see the preceding case,) and cited the case of Dunlap vs. Crawford, 2 M’Cord’s Chancery Reports, 171.. The Court, however, refused the motion, on the ground that the point in the case had already been adjudged. The Jury found a verdict for the plaintiff. .
    
      Desaussure, for the defendants,
    now appealed, and renewed his motion for a nonsuit on the grounds urged by him before the Circuit Court.
    
      McCord, in x’eply,
    contended that the cause had been adjudged, and that the judgment of the late Court of Appeals, in this very caus.e, was final and conclusive upon the parties. Upon the formation of this Court, it had determined in several cases, as in Raoul vs. Haskell, Sumter vs. administrators of Lawson, &e. &c. that this Court would not revise a decision made by one of the late Courts of Appeal. Their decisions were regarded as the final determination of the matter by a jurisdiction competent to try tlie question, and their judgment was as conclusive as if it were the judgment of a foreign Court upon a subject matter properly before it. lie would not argue the question under the will. That had been settled eight years before in the same cause, and as it was only placed upon the docket of the Circuit Court to enable the plaintiff to take his verdict, and had been so long postponed, it could not now be said that the question was open again. How, then, could this Court reconsider a question which was not open, but already determined by another Court of the last resort, of competent jurisdiction ? The Act of 1824, could have no operation on this will, made thirty years ago. It was so decided in the case of Boatwright vs. Faust. The act expressly says that its provisions shall only apply to wills “hereafter,” viz: “That no words of limitation shall hereafter be necessary to convey an estate in fee simple by devise; but every gift of land by devise, shall be considered as a gift in fee simple, unless such a construction be inconsistent with the will of the testator, expressed or implied.” It would be a disgrace to the Court and to the Country, to have two decisions so contradictory in the same cause.What would his client think of the justice and stability of the laws ? His right had been settled eight years ago, and now he was to be told that the legislature had changed it. If the Court should now change their opinion, what would the party think of the Court in the case of Boatwright- vs. Faust ? That case should also be reconsidered. He would not argue the question made under the will. It was not open.
   CuBiA.per

Johnson, J.

It is eoneeded on the part of the plaintiffs, that the lands in dispute at one time belonged to William Howell, and that he devised them to his nephew, Robert Howell, and the foundation of their claim is, that the devise contained no words of perpetuity or inheritance, and that consequently he took only a life estate in them. And it is further conceded, that if a devise in general terms and without words of perpetuity or inheritance will pass a fee simple, that the plaintiffs must fail in their action. That question was decided against the plaintiffs in the case of Crawford and Dunlap, brought up here at the February term, 1827 ; and in the subsequent case of Peyton, et. al. vs. Smith, et. al. determined at the sittings in Charleston, in February last, I expressed my reasons for concurring in the case of Crawford and Dunlap. They were founded on the conclusion that the conflicting opinions between the Law and Equity Courts in relation to it left the question open, or rather rendered the operation of the rule uncertain, and that the Act .of 1824 was declaratory of what the law was, and therefore operated retrospectively: and I have not yet been satisfied that there was any thing erroneous in that opinion, and must adhere to it. It only remains that 1 should justify the Court in overturning the decision made between these parties in this identical ease, and which is reported in 2nd Nott & M’Cord, 381, to which I also refer for a more particular statement of the facts.

That the Court possesses in itself the power of reviewing its own decisions, even between the same parties, and about the same subject matter of dispute, will not, I presume, be questioned. And of this, the history of the cases of Rose and Daniel, and Faysoux and Prather, are memorable examples. But when, as it happened here, the rule operated differently upon the community in the two distinct tribunals professing final jurisdiction in the last resort, it was worthy of a wise legislature to declare what the law was, and to give certainty to the .rule ; and the Court would have been inexcusable if it had arrayed itself against it; and I esteem it the more fortunate that this case, the only one in which the doctrine was established, has again found its way here, and that no rights have , been fixed by .it; and that the determination I am now prepared to give, settles, the rights of the parties in conformity to the declared opinion of the collected wisdom of the State. ■

Nonsuit granted,

Nott, J. dissenting.  