
    Pendleton v. Vandevier.
    October Term, 1794.
    Wills — Construction—Case at Bar. — The testator devises to his daughter M. 201., as her full legacy, ana in bar of any claim she may have on his estate. He then gives a tract of land to her heirs lawfully begotten on her body, to be held by them under the limitations contained in the devise to the heirs of his son A. V. He devises to the said A. V. and his heirs lawfully begotten, another tract of land with sundry limitations over. At the time the will was made, M. had a daughter, and afterwards a son, who immediately after his birth died. The daughter of M. took by purchase as heir apparent, at the death of the testator.
    Life Tenant — Deed of Lease and Release — Effect.—If tenant for life by deeds of lease and release, under the Statute of Uses, conveys the fee, it creates no forfeiture.
    Juries — Finding—Correction of Mistake in. — The jury find a conveyance to James, the lessor of theplain-tifl, whereas his name is Jacobus. This is a plain mistake, which may be corrected by the other part of the finding, that he is the lessor of the plaintiff.
    Wills — Devise of Land — Effect Where Testator Leaves Out a Course. — The testator in attempting to describe the boundaries of a tract of land he is disposing of, leaves out a course, which throws the whole into confusion. The jury in a special verdict, say, that if the testator intended to convey by such boundaries as they describe, then they find that to be the land in question; if by certain other boundaries, which they also describe, then they find that the land devised was according to those bounds. The Court may decide which are the true boundaries.
    Appellate Practice — Judgment in Favor of Appellant-Reversal — Costs.—If the j udgment below be in part favourable to the appellant, and it is reversed as to that part, he shall pay the costs of the appeal.
    This was an ejectment brought upon the demise of Jacobus Vandevier the appellee, against the appellant, in the District Court of Winchester. The jury found a special verdict to the following effect viz: That John Vanmeter being seized in fee simple of a tract of land, of which the land in question Was a part, departed this life at some time previous to September 1745, having first duly made and published his last will and testament, bearing date the 13th of August, in the same year, whereby he devised the land in question by the following clause viz: “Item, I give and bequeath to my daughter Magdalena, twenty shillings, as her full legacy, which when paid, is to bar her of any title to my real or personal estate, and I do devise unto her heirs lawfully begotten on her body, a certain tract of land part of that on which I now live, bounded as follows; [here follows a particular description of this parcel according to certain courses and distances] containing by estimation 2S0 acres more or less, to be held by the heirs of my said daughter under the limitations and restrictions according to the devise made to my son Abraham Van-meter’s heirs.” That he devised to *Abraham Vanmeter another parcel of the same tract particularly described by metes and bounds to him and his heirs, lawfully begotten; but if there should be no heirs male or female of his said son or sons (thereafter named) who should attain the age of 21 years, then after the death of his said son or sons, or their heir-s, remainder to his surviving devisees equally to be divided. The residue of the tract he devised in the same manner to his other children describing accurately the courses and distances of each parcel. That at the time of making the will, Magdalena had one daughter named Prudence born in the year 1744. That she had also a son born about 20 months after the birth of Prudence who lived only a few days. That Prudence (who is still living) did in the year 1769, convey the land in question by deeds of lease and release to Jacob Vande-vier, the father of the lessor of the plaintiff.
    The jury find a survey of the entire tract, as well as of the several parcels given to the respective dfevisees with the boundaries of the whole (except of the part bequeathed to the heirs of Magdalena) particularly laid off and described, and corresponding with the courses and distances mentioned in the will. The parcel devised to the heirs of Magdalena, is laid off in the plat referred to by the jury, in two ways, the one comprehending about 30 acres more than the other. The verdict then proceeds as follows : “If from the words of the will the testator’s intention can be legally construed so as to convey unto the heirs begotten on the body of the said Magdalena, the lands contained between the lines and letters s, t and K, then we find that the part of the land devised to the heirs lawfully begotten on the body of the said Magdalena, and which is the land in the declaration mentioned, is contained within the lines and letters, m, n, o, p, q, r, s, t, E, D, C, B and m. But if from the words of the will, the intention cannot be legally construed so as to convey the lands between the lines and letters s, t and E, to the heirs begotten on the body of said Magdalena, then we find that the part of the lands devised to the heirs lawfully begotten of the body o± the said Magdalena (which is in that case the land in the declaration mentioned) is described in the plat aforesaid by the letters m, n, o, p, q, r, s, E, D, C, B and m.” They further find that Jacob Vandevier the father of the plaintiff, being seised &c. departed this life having by his will devised the land in question to his son James the lessor of the plaintiff.
    *To several of his children he devises (“after his wife’s thirds of his moveable estate, and legacies are paid) ata equal proportional child’s part arising therefrom, as well of lands to be disposed of, if any there be, as of all things else.”
    The District Court gave judgment for the plaintiff according to the lines which included the smallest quantity of land, from which the defendant appealed.
    Williams for the appellant.
    The first question is, whether Prudence took any estate at all or not? 2dly, If she did, then what estate she did take? 3dly, Whether the verdict be not so defective, as that no-judgment can properly be rendered upon it?
    First, the rule of law is well established, that no person can take by the name of heir during the life of the ancestor, for nemo est haeres viventis. From this general rule, a departure is sometimes permitted, in the case of last wills in favor of intention ; but then, the person who is intended to take by that name, must be almost as accurately described, as if he were named. The word heir, unconnected with some other description, is a word of limitation, Cowp. Rep. 309, 313. In all the cases which form exceptions from this general rule, there will be found superadded words descriptive of the person intended to take; Thus in Dong and Beaumont, 1 P. Williams 229, which was a devise to the heirs male of a person then living, there is not only a legacy given to the ancestor, by which the testator takes notice that he is alive, but legacies are also given to his three sons by name, who were of course known by the testator to be then living j and in that case it was resolved, that the eldest son should take as heir thus described. So in Burchett & Durdant, 2 Vent. 311. The devise was to the heirs male of the body of R. D. then living. But in the case now under consideration, there are no words descriptive of the daughter of Magdalena. The testator takes no notice of her at all, nor does it appear that he knew she was in being; for she was born only in 1744, the year before the testator’s death. It is also to be observed, throughout the will, that when the testator gives any thing to grandchildren, he mentions them by name.
    2dly, If Prudence takes any thing, it cannot be a greater estate than for life, for the devise is to the heirs of the body of Magdalena without words of limitation super-added, and the reference to the devise, to Abraham Vanmeter’s heirs does not enlarge the estate; for the words in that clause are not (as in this) to the heirs of Abraham, but to Abraham and the heirs of his body. *So that there is no such devise in the will, as that to which the reference is made.
    If then Prudence only took an estate for life, her conveyance being1 by lease and release amounts to a forfeiture of her estate. I admit, that if this had been a conveyance operating under the statute of uses, it would have been otherwise; but a lease and release like the present is a common law conveyance. • The consequence is, that the heir at law was the only person entitled to enter for the forfeiture.
    3dly, It may be very seriously questioned, whether as Jacobus the lessor of the plaintiff must recover by deducing a clear title to himself, he can succeed upon this verdict which finds that the devise from Jacob Vandevier was to his son James.
    As to the conclusion of the jury, it seems too vague for the court to decide upon, since there is nothing but the will itself from which the intention of the testator can be discovered.
    Whether the testator in describing the parcel of land in question meant to confine, or to extend its limits, according to either of the two lines stated in the verdict is a question, which must depend entirely upon evidence. The courses mentioned in the will do in no respect fit either of them, but might have been explained to the satisfaction of the jury by a variety of circumstances of which they were, as I conceive, the'only proper judges.
    Lee for the appellee.
    In this case, both parties may be considered as appellants. Pendleton complains because a judgment is rendered against him for any thing, and Vandevier contends that he is entitled to a judgment for the whole of the land.
    As to the first point, I shall admit the general rule, nemo est hceres viventis. JBut it is equally clear, that to favor the intention of a testator, the word heir may be as descriptive of the person to take, as if he were particularly named. In this case, it is evident from the mispelling, and from other inaccuracies in the will, that it was written by an illiterate man. The testator was about to divide a large tract of land between his children and grand-children, and intended to describe each parcel by certain metes and bounds. He then gives all the residue of his estate to be divided amongst several of his children, which proves that he did not intend to die intestate as to any part, or to leave any thing to descend to his heir at law. He takes notice that Magdalena is living, and of course, that she could not have heirs in the legal sense of the word. Prudence is also found to have been born before the will was made, *with which it is presumed he was acquainted, tho’ she is not noticed in the will. All these circumstances are as strong as can occur in any case, to shew an intent in the testator, to describe Prudence by the words which he used. The case of Doe and Lamming, 2 Burr. 1100, was that of a present devise, unattended by any particular description of the persons meant to take as heirs, other than may be drawn from the manner in which they were directed to take. The case of Brooking v. White 2 Blac. Rep. 1010, is a very strong' and pointed authority.
    As to the second point, it is immaterial whether Prudence took an estate for life, or intail, for as she is found to be still living, the conveyance to Jacob Vandevier is sufficient to enable the appellee to recover in this action, and the conveyance does not produce a forfeiture, as is supposed. If it were necessary to contend that she took an estate of inheritance, the reference to the devise to Abraham Vanmeter might without . violence to the words be construed to mean ‘ ‘to Abraham Vanmeter and the heirs of his body,” since the devise in that clause is not to the heirs of Abraham Van-meter &c. but to ‘‘Abraham Vanmeter, and the heirs of his body.”
    The third objection does not seem to be much relied upon. The jury having found that the devise was to the lessor of the plaintiff (whose name is Jacobus) and the devise being to Jacobus, the court will at once perceive that it is a mistake of the jury, and will reject the word Jacobus in the verdict as surplusage.
    The last objection is, that the jury ought to have found the boundaries of the land in question and not to have submitted that question to the court.
    The court being the proper tribunal to decide upon the construction of deeds and wills, and of the intention of the makers thereof, the jury did right in submitting to them the question respecting the disputed lines, as they depended entirely upon a comparison of the courses and distances mentioned in the will, with those laid down and described in the plat of the land found by the verdict. Prom that it appears, that the testator intended to parcel out one entire tract amongst the different members of'his family, according to certain metes and bounds. There is a perfect correspondence between the will, and the plat, as to every subdivision, except that in question. It is clear therefore that he meant to devise the whole, and not to leave a remnant of 30 acres in a tract of 1700 undisposed of, which will be the case, if the judgment below be right. Now it is plain, that the testator *had the plat found by the jury before him, at the time he was writing his will, and after pursuing the boundaries of this parcel of land to a particular point, by mistake he left out a course, and consequently if the will be literally pursued, the lines of the survey could never be made to unite. This would be absurd and repugnant. To effectuate the intention of the testator therefore, the court will supply the line which was omitted, so as to produce a compleat disposition of the whole tract. If then the court is of opinion that the testator meant to dispose of the whole tract, the judgment below will be reversed and entered for the whole; if otherwise, the judgment will be affirmed.
    Washington on the same side. The rule of law, as a general one, is truly stated by Mr. Williams. The doctrine formerly prevailed in all its rigor, but it has long since been mitigated, and it is now as well settled, as any principle whatever, that heirs in a will may take eo nomine by purchase, if the court be satisfied that such was the intention of the testator. The case of Long and Beaumont, cited by Mr. Williams, proves it, and is much like the present. In this, as in that case, the heir was living when the will was made, and the testator took notice that the ancestor also was living, a circumstance much relied upon in that case. In this case, as in that of Brooking and White, the testator has made a provision for his heir at law, which proves that he could not intend to leave any thing to descend. But, what renders this case still stronger is, that there was an evident intention to make an equal division of this tract of land amongst the children, and to prevent the possibility of an intestacy as to any part, the residuum of the real estate is disposed of.
    2d point. Independent of the strong argument to be derived from the reference to the devise to the heirs of Abraham Vanmeter, it is clear that the heirs of. Magdalena took an estate tail. It is not true, I conceive, that where heirs or issue take by purchase, they take only an estate for life. If they be described by the former name, they take the absolute property and dominion; if by the latter, a limited fee. Trevor and Trevor 1 Eq. Ca. Ab. 387.
    But suppose only an estate for life passed, still that is sufficient to entitle the lessor of the plaintiff to recover. And in that case the deed from Prudence to Van-devier could not produce a forfeiture as Mr. Williams supposes, because the conveyance has its operation under the statute of uses. The lease is a deed of bargain and sale, which by the operation of the statute, vests *the possession, so as enable the lessee to receive a release. The only difference between this mode of conveyance before, and since the statute is, that in the one case, actual entry by the lessee was necessary for the release to operate upon ; in the other, the bargain and sale passes the use, and the statute executes the possession, which enables the lessee to receive a release. Now the lease in question is made by the deed of bargains and sale, and recites the intent of it to be, to put the lessee in possession, do so as to enable him by virtue of the statute of uses to receive a release.
    Marshall for the appellant.
    We do not contend, that heirs or issue, so named, are incapable of taking by purchase, but that the general rule as stated by us, and admitted on the other side, is never departed from, but in favor of a clear intention, plainly describing the person who by that name is to take. Is Prudence so described ? There is not a circumstance in the case to prove that she was meant. It does appear that the testator knew that she existed; for if he had, it is probable he would have named her, in the same manner as he has done others of his grand children; and if he knew she was living, then it would seem that he rather meant to exclude her. The description is too vague for the court to say who was intended, and therefore the devise is void for uncertainty. Suppose there had been a son who had lived; — could the court say that Prudence should take in exclusion of that son? Or is it not more probable, that the testator would prefer the male to the female issue? — If the case supposed had happened, and the son would have been entitled, then it cannot be said that Prudence was intended to be described. The argument that no person can be supposed to intend a partial intestacy, if admitted in the latitude contended for, would entirely defeat the general rule, because it would apply in all the cases which have been cited, where the heir not being properly described, it has been determined, that he could not take as a purchaser. Long- and Lamming is not like this case; the devise there, is to A. C. and to her heirs male and female equally to be divided, as well those begotten as to be begotten. So that there was no uncertainty who was to take. In this case it might mean a son, or a daughter. The case of Brooking v. White, comes within the exception, as the testator took notice that the ancestor had children living. The devise in question is therefore void, being an immediate one, which could not take effect upon the death of the testator.
    *As to the nature of the estate given to Prudence, (if she be entitled to any thing) it cannot I conceive exceed an estate for life. I know of no case in which the heir takes by purchase, that he takes a greater estate than for life, unless words of inheritance are engrafted upon the devise, or a strong intention appears to pass a greater estate. As to the reference to the limitations to Abraham Vanmeter’s heirs, the counsel ask too much when they call upon the court to supply the words “to Abraham Vanmeter and his heirs” &c. instead of those actually used by the testator.
    As to the last point, I think it impossible for the court to supply a whole course, without a single fact being stated by the jury. The testator may have blundered, but I cannot perceive upon what principle this court can correct it. It would be to make not to interpret a will.
    
      
      Appeals — Costs.—On this question the principal case is cited in Preston v. Harvey, 2 Hen. & M. 66; Mantz v. Hendley, 2 Hen. &M. 308; Todd v. Bowyer, 1 Munf. 447. See monographic note on “Appeal and Error" appended to Hill v. Salem & Pepper’s Perry Turnpike Go., 1 Rob. 263; monographic note on “Costs” appended to Jones v. Tatum, 19 Gratt. 720;
    
    
      
      This Is a mistake, it should have been. E, as it is apparent from the plat.
    
   LYONS J.

delivered the opinion of the court.

The first question made in this cause is, whether the devise to the heirs of the body of Magdalena be void or not. The argument to prove it void is, that no person can be the heir of an ancestor whilst living, and therefore, as such, cannot take. But the court are of opinion that the word heir may mean heir apparent, and that such was the intention in the present case. We are clear, that the testator meant to give the estate to the person -who should be the heir apparent of Magdalena at the time o± the testator’s death, and that he has used proper words to convey such an intention. If the heir apparent at that period had been a son, he would certainly have taken, but being a daughter, she took as such by purchase.

The second question was, what estate she took? It is unimportant for the court to decide, whether she took an estate of inheritance or not, since as she is found to be stilt living, her grantee has a .title to recover in this action, though she only took an estate for life.

But it was contended, that if she took only an estate for life, the deeds of lease and release produced a forfeiture of it. We are of opinion that there is nothing in this objection. The conveyance has its operation under the statute of uses, and therefore the grantor could pass no greater estate than she might lawfully part with.

The next objection is that the verdict finds the land in question to have been devised to James instead of Jacobus who is the lessor. This is clearly a mistake in the jury, and ought '^not to be regarded, since the description of the devise is sufficient^ plain when he is called the lessor of the plaintiff.

The last point is attended with more difficulty. It respects the boundaries of the land upon the special statements in the verdict. There is some inconsistency in the finding, which might be important, if the court doubted about the true boundaries of the land intended to be devised. It is evident that the testator had surveyed this land, and marked down by specified boundaries, the •part intended for each of the devisees, and that he must have had the plat before him when he made his will. The boundaries of the other devisees are right; when he comes to describe the parcel in question, he begins right and continues so, with little variation in course or distance, till he gets to s; then by mistake in transcribing the courses, from the plat, into the will, he appears to have overlooked one line viz. s, t, which creates the difficulty. If it be omitted altogether, none of the subsequent lines are right; if it be supplied from the plat, then they are all right and the disposition of the whole tract is compleat. The court has no hesitation in saying, that the testator’s intention was to pursue the lines which comprehends the 30 acres not included in the judgment of the District Court, and therefore, that their judgment though right as to the plaintiff’s title, is erroneous in not comprehending the land contained within the lines of the survey described by the letters s, t, E> and to s again.

But as that error was in favor of the appellant, the costs of this court ought to be paid by him to the appellee as the party prevailing, although the judgment be reversed.

The judgment must therefore be reversed and entered for the appellee, for the land contained within the survey taken in this cause and described by the small letters m, n, o, p, q, r, s, t, and the large letters E, D, C, B, and to little m, together with his costs in this court.

Judgment reversed. 
      The principal case is cited in Nelson v. Matthews, 2 Hen. & M. 176,
     