
    Evans’ by their next friend vs. Wells.
    1. James Jordan modo a deed of gift in substance as follows: “Jn consideration of the love and regard that I have for my daughter, Martha Evans, I have loaned to her the following negroes &c., for her support and no others, except she, the said Martha should have issue or heirs of her body, and in that case I loan said negroes to he r and her heirs for their mutual support. And if said negroes should remain in possession of said Martha until her death, and she should have legal heirs of her body, I give said negroes with their increase to them.” Held, that a life estate was given to Martha Evans, and a valid remainder to her children living at her death.
    2. A deed, required, by the laws of the State, where it was made and registered, to bo proved and recorded in twelve months after execution, otherwise to be void, must bo shown to have been registered within the time prescribed or it will not be admitted in evidence.
    3. Dismissal oí bill without prejudice; under what circumstances this will be done.
    On the 10th November, 1828, James Jordan made and executed the following deed of gift:
    “Know all men by these presents that I, James Jordan, of the county of Pearson and State of North Carolina have this day loaned to my daughter, Martha, who has intermarried with David Evans, the following slaves &c., which slaves, I do, by these presents, for and in consideration of the love and regard that I have for my daughter Martha Evans, as well as divers other good causes, loaned to her the said Martha for her support and no others, except she should have issue, or heirs of her body, and in that case, I loan said negroes to her and her heirs for their mutual support, retaining to myself the control of said negroes during my natural life so that they are not to be taken from her either by myself, or any other person or persons whatsoever, in any way whatever by him the said David Evans or otherwise for his debts, or to be conveyed by him to any other person in any way whatever, that the said negroes shall remain in the possession of the said Martha for her support, her and her heirs &c.; and that so long as the said David Evans shall have said negroes in his possession in right of his wife Martha, treat them with humanity, clothe and work them for their support and nolonger, so long as they may comply with this loan; and further, that if said negroes should remain in the possession of said Martha and David, until the death of her, the said Martha, and she should have legal heirs of her body, I give said slaves with their increase to them, the said heirs, otherwise, I retain them to myself as a part of my estate, to be equally divided among my legal heirs, then alive.”
    This deed was acknowledged in open court and oi'dered to be registered. Appended to the copy read in evidence, was the certificate of the register under date of January 27th, 1844, certifying, that said deed was a true and perfect copy from the records of his office, being registered in book I, page 237. But the date of the original probate and registration no where appeared in proof. Martha Evans had two children by her husband David Evans, who are the complainants in this suit. She afterwards obtained a divorce from said Evans, and intermarried with defendant William H. Wells. This bill was filed by James S. and John C. Evans, by their next friend and guardian James Jordan in the Chancery Court at Somerville. The defendant insisted that the entire interest in the slaves was vested in Martha, by the terms of the deed, and became his jure mariti. The Hon. Andrew McCampbell, Chancellor, upon final hearing, dismissed the complainants bill, from which decree complainants appealed.
    
      H. G. Smith, for complainant.
    The meaning of the deed on which depends the title to the slaves in controversy, is—
    A loan of the slaves, subject to some extent to the control of the donor, to Martha, wife of Daniel Evans, to her separate use until she shall have issue. Then to her for her separate use and to such issue for their joint support, until her death. Then to such of her issue as might be living at the time of her death, and if no such issue, over.
    Martha had by Evans two children, the present complainants, after the execution of the deed; subsequently intermarried with Wells, the present defendant, and died, leaving the complainants, the only issue of her body living at the time of her death.
    The questions are, on the effect of the deed — whether it vests the entire estate in Martha, which upon her death enures to her husband surviving; or whether the limitations declared in favor of the heirs of her body vest the estate in the complainants upon her death.
    The deed was made in North Carolina in November 1828, where the donor and Martha and the slaves then were. By the law of that State, (Act of 1823, c. 121, 1 Ird. and Batt. Dig. 231) the validity of limitations of slaves by deed, is governed by the rules of law applicable to executory bequests. The effect of the present deed is therefore the same as if it were a will.
    The separate estate of a married woman in personalty, in the absence of ulterior limitations, enures on her death to her husband surviving; 10 Yerg. In the present case, therefore, the slaves would enure to the defendant, but for the limitations declared in favor of the complainants.
    Are these limitations valid? The courts strongly incline to support limitations of personalty. Jarman on Wills 489, a. and u. 1.
    Conceding the effect of the deed to be a gift to Martha to her separate use for life, remainder to the heirs of her body, the remainder, would be good to the complainants. The phrase “heirs of her body” is a phrase of purchase not of limitation, in such case.
    And for the reason — that the particular estate and the re- . •mainder, are not of the same quality, the former being equitable; the latter, legal.
    The rule in Shelley’s case requires the particular estate, and the remainder to be of the same quality, both legal or both equitable. 4 Kent Com. 215; 2 Jarman on Wills 244.
    The estate of Martha is equitable. A gift of personalty to a married woman to her separate use, in the absence of -a trustee, vests the equitable estate in the wife, the legal estate by operation of law, enuring to the husband. 8 Yerg. 33; Clancy on Rights ácc. 256 &c; 2 Roper on Husband and Wife 152.
    At law the existence of the wife is merged in the husband. A gift to her is a gift to him in the case of personalty. An equity declared in her favor is not noticed or recognised in the courts of law. It is the subject exclusively and solely of the cognizance of chancery.
    
      But in another aspect, it is clear that the interest of Martha is merely equitable. The deed in terms declares a loan to her, and in contra distinction thereto, a gift to her issue after her death; a loan to her and her issue for the joint support'during her life, and a gift to such issue living at her death. It declares the estate to be to her separate use, which is an equity only. The donor retains to himself a partial control of the slaves, which is inconsistent with the entire parting with all estate in them. The legal estate therefore may be deemed to remain in the donor, till the gift in remainder takes effect.
    Further. Whatever estate is declared to the wife, the same estate during her life is declared to her issue as they come into being. The “heirs of her body” are to share jointly with Martha and during her life in the use and enjoyment of the slaves. The words therefore are words of purchase, not of limitation. 4 Kent 221; 6 Yerg. 103; 9 Yerg. 225.
    And hence the estate so declared (treating the deed as a will by virtue of the North Carolina statute)’ is a good executory bequest.
    It takes effect from time to time as each comes into being— opening as each comes inip life, to let him in. 4 Kent Com. 221, u. c. and cases there cited, id. 269.
    During her life, therefore, Martha takes an estate in common with her issue. Her estate terminates with her life, whether the limitations over to her issue be good or not.
    For if the limitations give the remainder to her issue, of course her estate is only for life. And if these limitations, by virtue of the rule in Shelley’s case or as an entail, communicate to her an absolute estate, then the ultimate remainder to the donor is good, and her estate at her death is defeasible. The remainder to the donor is good, because it is not limited on indefinite failure of issue, but is to take effect at the death of Martha.
    And further, the object, frame and manifest intent of the deed, is to declare an estate for life only to Martha.
    It is equally clear, that the donor designed an estate to her issue during the life of Martha, equal with her, and at her death the entire estate.
    
      The estate to the issue, during the life of Martha vested in them. The deed declares her estate to end with her life, and then to continue after. To sustain the claim of the defendant reverses all this — continues her estate and ends theirs. Such result would be a monstrous legal anomaly or absurdity.
    Whatever effect therefore, the words may have to sustain and lengthen the estate of Martha, the same intending to continue and enlarge the estate of her issue, can scarcely beheld to work its destruction. At least they will be deemed to continue to them the estate vested in them during her life.
    If so, the issue are tenants in common with Martha during her life — and after her death, with her representative. This would give the complainants two thirds of the slaves.
    Again. The technical meaning of “heirs of her body” is as words of limitation. Such meaning, however, yields to a clear intent to use them as words of purchase.
    In the present instrument, these words, with slight variations, are found three times. In the two first instances they are clearly words of purchase, inasmuch as they designate persons in being in the life time of Martha, and who cannot therefore be her heirs during her lifetime.
    In the third and last instance they are employed to declare the limitation of the remainder, which limitation is to the “heirs of her body” alive at the time of her death.
    By a physical necessity, the issue of the body of a woman living at the time of her death, must come into being at or before her death.
    Therefore the heirs of her body living at the time of her death are the same heirs of her body in esse in her life time.
    And consequently, the same persons are designated by the same phrase in all the several instances where used. Twice they mean purchasers — the third time are they merely a legal fiction, designating the quantity of an estate, not the individuals to enjoy it.
    If they take as purchasers in her life time, and the same persons are declared to take at and after her death, the case is similar to a limitation to A. for life, until a contingent event occurs, then to A. and B. during the life of A. remainder to B.
    
      The following cases are similar to the present in which the ulterior limitations have been supported. Hunter vs. Loving, 8 Yerg. 4; Hamilton vs. Bishop Sfc. 8 Yerg. 33; Hughes vs. Cannon, 2 Humph. 589; Hickman vs. Quinn, 6 Yerg. 103; Hoe vs. Ironmonger, 3 East 533.
    As to the adverse possession, the complainants are infants against whom the statute will not run.
    If the court are of opinion that the lack of proof of the date of registration of the deed debars the complainants of a decree, the following observations are submitted as to the proper course to be taken with the case.
    The chancellor is by virtue of his office guardian of infants in his jurisdiction, and it is his duty to watch and protect their interests in cases in his court. 8 Pet. 128.
    Then if it appear that infants have merits in their case, but by reason of the inadvertence of counsel or inattention of the prochein atmj,r such merits be not so shewn by proofs as to call for a decree in favor of the infants, it is proper for the court to do one of two things — to remand the cause for further proofs —or to dismiss the bill without prejudice, that the infants when of age or again advised may more ■ effectually prosecute their rights.
    This court has power to remand. Thus in 9 Cranch 122, objection was made to the probate of deed. The court held the deed not proved, and refused to dismiss the bill but remanded it to the court below for further proceedings. The objection was said to be technical, and the court mentioned was not made in the court below. In the present case, the objection to the deed for lack of date of registration was not made in the court below.
    The case in Cranch was of person of full age. Of course, much more ought a court to remand in favor of infants, whom the court ought to protect.
    So again, in 9 Gill & Johns. 51, (2 American Ch. Dig. 444,) it is said — where the substantial merits of an equity cause, will not be determined by reversing or affirming the decree of the Chancellor, or the purposes of justice advanced by doing either, the court will remand the cause and amend the pleadings; make iiew parties; state further accounts, and take such testimony as may be necessary.
    But if the court think it not proper to remand, it is then submitted that dismissal without prejudice is proper and just. Especially so is it, where the parties are infants, and there is reason to think they have merits which have not been well exhibited by proofs. *
    To dismiss absolutely or without prejudice, is of course a matter of discretion with the court, having reference to the merits.
    In 7 Gill & Johns. 179, (2 Am. Ch. Dig. 439,) in the case there stated, the court dismissed the bill without prejudice that the complainants might institute new proceedings; prove their case more fully, &c. &c.
    .Also in 6 Munf. 20, (2 Am. Ch. Dig. 441,) the caséis— where the bill is defective, not only for want of proper parties, but in other respects, so that no decree can be made for the plaintiffs, a decree dismissing the bill ought to be affirmed. But if it appear probable that something might be recovered upon a bill properly drawn, such affirmance should be without prejudice to any other suit the plaintiff may be advised to bring.
    Again — It is usual to allow an infant defendant six months after he comes of age to show cause against a decree. In such case he may put in a new answer; make a new defence, and take new proofs. 1 Smith’s Ch. Pr. 419. Such care being taken to protect infant defendants, surely it seems proper that they should have some means to investigate a decree upon their rights against them as plaintiffs. This can only be done by dismissing without prejudice.
    The date of registration may be proved by parol. Meigs’ Rep.
    A decree of absolute dismission, where it ought to be without prejudice, may be for that reversed and dismissed without prejudice. 1 Mon. 239, (2 Am. Ch. Dig. 441.)
    
      L. H. Coe, for defendant.
    By the act of N. Carolina in 1806, Rev. Code, page 230, sec. 17 — No gift of a slave is permitted to be available, unless made in writing, signed by the donor and attested by at least one credible witness, subscribing; neither shall such gift be valid unless the said writing shall be proved or acknowledged as conveyances of land, and registered in the office of the public register of the county, where the donor resides, within one year after the execution thereof.
    Sec. 18, declares, that all deeds of gift of any estate of whatever nature, shall within twelve months after the making thereof, be proved in due form and recorded, or otherwise shall be void and' of no force whatever; and the
    19th sec., also states in explicit terms, that all deeds of gift shall be void and of no force whatever, unless 1st, in writing, 2d, attested by at least one credible witness, and 3d, proved in due form, and rendered within twelve months from the making.
    I insist therefore, that whether the instrument upon its face is regarded as a gift or loan in the first instance, it cannot be read at all as testimony in favor of complainants, because it does not appear that the instrument was duly proven and recorded within twelve months after the making thereof. And this is a point of proof (being denied or required in the answer,) resting upon complainants to establish affirmatively, and this also by the record.
    But if all these questions be decided against us, was this a deed of loan or gift:
    1. If a loan, the legal title remained in James Jordan, and that title was barred by defendant’s possession, and the rights of creditors had attached before any claim or right could have vested in complainants.
    2. If a gift, (and in this instance this may well bear the construction of gift, though the word loan is used,) and the title passed out of James Jordan, upon executing the deed it vested in Mrs. Evans, and by virtue of the marital right in David Evans, so tied up if you please, that it could not be sold for his debts. By the proofs iu this case neither of complainants was then in being, or for years afterwards: Mrs. Evans had then no children. This appears on the face of the deed.
    I insist, therefore, that it falls fully within the rule in Shelly’s case, and is.a stronger case for the application of that rule than the case of Taylor vs. Bevill, decided by this court in 1845.
    This deed cannot be brought within the operation of sec. 22, page 231, of the.Rev. Statutes. It applies only to such limitations as would be good as an executory devise or bequest. Mrs. Evans might have lived, say sixty years after the death of James Jordan, and nearly as long after the decease of all his children except herself, and leaving in fact none but great grand children of James Jordan, and then herself would have died childless, and if the limitation in the deed under consideration be good they could have taken it as his “legal heirs ihen alive.” It might have gone to persons not in being at the death of James Jordon or any of his children, nor for -twenty-five years or more after that event.
    In the case of Booker et als vs. Booker et als, 5 Hum, 505, the court decided that this contingency must happen within the lifetime of some of testator’s children.
    Mrs. Evans look an estate in fee to her and her heirs to the property, but the power of the husband to alienate it was taken away. The object of this was to protect it against the creditors of Evans. In all other respects her estate was absolute. But upon her becoming a feme sole by a subsequent divorce, her title became in all respects absolute and passed fully upon marriage to defendant Wells, and became subject to his debts.
    In a settlement in trust to the separate use of a married woman for life, the clause against anticipation becomes inoperative on the death of the husband, and no longer binding. Barton vs. Briscoe, Jacobs R., 603; and Benson vs. Benson, 6 Sim-ons R-, 126; 2 Story Eq., 611, note 1; Bradley vs. Hughes, Simons R., 149.
   Turley, J.

delivered the opinion of the court.

The complainants, children of Martha Evans, deceased, filed this bill for the recovery of certain negroes conveyed by deed of gift from their grand father James Jordan of North Carolina, on the 10th day of November, 1828, to their mother for life, with remainder to her children living at her death. The father of the complainants died leaving their mother, who afterwards married the defendant Wells and died, and he has in his possession the negroes, claiming them by marital right. There are twm objections taken to the complainants’ right of relief.

1st. That the limitation in the deed falls within the rule in Shelly’s case, and is void as being too remote, and therefore vests an absolute estate in Martha Evans, which belongs to her husband and not her children.

We do not think that such is the construction of the limitation in the deed of gift. It is not made to depend upon the failure of heirs generally, but is an absolute gift to the children of Martha Evans living at her death, who take as purchasers. The clauses of the deed bearing on this point, are as follows: “In consideration of the love and regard, that I have for my daughter Martha Evans, I have loaned to her the negroes aforesaid, for her support and no other, except she, the said Martha, should have issue or heirs of her body, and in that case I loan said negroes to her and her heirs for their mutual support. And if said negroes should remain in possession of said Martha until her death, and she should have legal heirs of her body, I give said negroes with their increase to them.”

It is obvious that the daughter of the dpnor and her children were the equal objects of his bounty, that it was for them he was providing and for none others more remote, and it is equally obvious that when he uses the words “heirs of her body” he meant children, using the words in the common and ordinary meaning as representing individuals, and not in its legal sense as representing a class.

We therefore think, the deed of gift conveys to the complainants the title to the slaves upon the death of their mother, and that the defendant Wells has no marital right to them.

But it is objected, 2nd, that by the laws of North Carolina, this deed of gift is void as to all purposes, if it were not regis-' tered within twelve months after its execution, and there is no proof as to the date of its registration. There is no proof showing when the deed was registered, and we therefore, cannot say it was so executed as to pass the title to the negroes to the complainants, and we must therefore dismiss the bill, but we do this with regret, because we have but little doubt that in point of fact the deed was registered in proper time, because if it were not, the defendant Wells has no right to the negroes unless he have acquired it by the operation of the statute of limitations.

We, therefore, dismiss the bill without prejudice to the complainants’ right to file another, when the defect of proof may be supplied.  