
    Polk and others vs. Faris.
    Wherever the ancestor by deed, will or other writing, take’S an 'estate of freehold, sgither legal or equitable, and in the same instrument there is a limitation by way of remainder, (either with or withoutjlq'intervening estate,) of the same legal or equitable character, to his heirs, or the heirs of his body, as a class of persons to take in succes-J sion; the limitation to the heirs, entitles the ancestor to the whole estate. I
    The rule in Shelly’s case, is a settled and acknowledged principle of the common law; our ancestors brought it with them; it formed an element of our colonial law, and it must continue to exist as a portion of 'Our general public law, until abrogated by statutory enactment.
    Every rule of law, once clearly established, Continues to éxist, so long aá the subject! matter on which it operates exists, unless altered by the Legislature; therefore that, al rule of the common law was exclusively of feudal origin, or established in feudal reasons, which have ceased to exbt, does not diminish its authority, nor justify courts of justice in withholding obedience to it, or in refusing to give it full effect.
    {‘At matters not how distinctly in point of intention it may appear that the grantor meant that the first taker should take a life estate only, if it further appear by the use of the terms, “heirs of the body, issue, children, &c.” he meant the descendants of the first takerto take in their character of heirs a descendible estate of inheritance; such purpose by operation of the rule, vests the first taker with the inheritance^/
    Where the interest or profits only are given to the first taker for life, and the principal to his heirs, the effect of the rule is the same; it vests the whole in the ancestor.
    The reason and origin of the rule in Shelly’s case examined; its propriety as a rule of property illustrated, and its direct applicability to the genius of our institutions, and the liberal and commercial spirit of the age, which alike abhor the locking up and rendering unalienable property, discussed and insisted on by Judge Reese, in delivering the opinion of the Court,
    
    
      A, by deed, in consideration of natural love and affection for her natural daughter Í?, conveyed to her said daughter B, a slave named Phillis, “to have and to hold, and enjoy all and singular, the premises' aforesaid to the said B, her executors, administrators an^ assigns,- for and during, and until the full end anc1 term of her natural life, and after the dtetermination of that estate, then to the heirs of the body of the- said B, lawfully Sssuingr and for default of such issue — lawfully begotten, then the said negro wench and her issue, <&c. to return to me, and my heirs forever.” Held, that the absolute right and title" ⅛ the slave was vested in the daughter.-
    It is well settled' that whatever words create an estate tail in real property, will ves¿ th’e entire and absolute property in chattels.
    This bill was filed against the defendant, Faris, by John Polk and Agnes his wife, formerly Agnes Brown-, Robert Harper and Elizabeth S. his wife, formerly Elizabeth S. Polk, William F. Smith and Mary T. his wife, formerly Mary T. Polk, Thomas A. Polk, Alexander F. Polk, George Polk, Catharine Polk, James Polk and William Polk; the four latter are minors, who sue by their next friend, John Polk. It alleges that on the 2nd day of January, 17’86, the mother of complainant Agnes, then a single woman by the name of Elizabeth Strain, for and in consideration of the natural love and affection she had for complainant' Agnes, (who was her natural daughter,) and for the better maintenance and' suppbrt of the said Agnes, gave, granted and confirmed to the-said complainant, Agnes, for and during her natural life, and after the termination of that estate,, to the heirs of the body of said Agnes, a young negro wench named' Phillis-, then about eleven-years old, together with other property therein named, which deed of gift is as follows: “This indenture made this 2nd January, 1786, between Elizabeth Strain, of the State of South Carolina, of the one part, and Agnes Brown, natural daughter of said Elizabeth, of the other part, Witnesseth: That the said Elizabeth Strain, for, and in consideration of the natural-love and affection which she hath and beareth unto the said Agnes Brown, hath given, granted and confirmed, and doth give, grant and confirm unto the said Agnes Brown, one negro wench about eleven years of age,' named Phillis; likewise a cow and calf, together with all the issue of the said negro-wench,and the increase of the cattle aforesaid. To have and to hold, and to enjoy all and singular the premises aforesaid to the said Agnes Brown, her executors, administrators and assigns,for and during, and until the full end and term of her natural life; and after the determination of “that estate,” then to the heirs of the body of the said Agnes Brown, lawfully issuing, and for default of such issue, lawfully begotten, then the said negro weneh Snd her issue, and the cattle and their increase to return to me and my heirs forever. And the said Elizabeth Strain, all and singular, the aforesaid .property to the said Agnes Brown and her heirs, lawfully begotten, against all persons whatever, shall and will warrant and forever defend, &c.”
    The bill then alleges this deed of gift was made in the State of South Carolina, where the parties then resided, and was duly proved and recorded as required by the laws of said State.
    It further alleges that complainant, Agnes, intermarried .with complainant John Polk, in the year 1804, in South Carolina, and that at the time of her intermarriage she was a minor under the age of twenty-one years, and that complainants Elizabeth S., Mary T., Alexander F., George, Catherine, James and Wiliir.it:5 r.'.'r.'children of said complainant, Agnes by her said husband, John Polk. It further alleges that, some time after the date of said deed, and many years before the marriage of complainant, Agnes, the said Elizabeth Strain intermarried with the defendant Alexander Faris, and that said slave Phillis, with her increase, were taken into the custody and possession of said Faris, at or about the time of his said marriage, and continued in his possession up to the time of the marriage of said Agnes. That after complainant’s, Agnes and John, were engaged to be married, and only ten days before they were actually married, the said defendant Faris and Elizabeth, his wife, by combining together, and taking advantage of the circumstances which surrounded the said complainant, Agnes, required and induced the said Agnes, whilst she was yet ■a minor, to execute some instrument or deed, by which she conveyed her interest in said slave to said defendant. The execution of this instrument was made a condition, upon which only, they would consent to the marriage of complainants, Agnes and John; and that it was made under circumstances of duress and oppression, which would authorise a Court of Chancery to set it aside; and that, although complainant John, ass^nte(3 to this, and. gave a bond to that effect, it was done the same circumstances,
    The bilí then alleges that defendant had sold some of the slaves, the increase of said Phillis, and that a suit was pending for them in Georgia. That defendant Faris was in possession of Dinah, one of Phillis’ children, and also four children of said Dinah, (to wit:) Rhody, Harriet, Mary and Austin.
    The bill also alleges that defendant Faris is insolvent; that the absolute right to the slaves is in complainant, Agnes, for her life, and that if said deed or contract, made by said Agnes, is allowed to stand, it only vested her interest, which was for life, and that the absolute property, in remainder, is vested by the terms of said deed from Elizabeth Strain, in the complainants, her children. That complainants have good cause to believe, from hints, &c. that said defendant will remove said slaves without the limits of this State, &c.
    The bill prays that the instrument executed by complainant,. Agnes, about the period of her intermarriage, and any instrument executed by said John, under like circumstances, maybe delivered up and cancelled; that the title to said slaves may be divested out of defendant, and vested in complainants, and that complainant, if he is entitled to the life estate, may be compelled to deliver up the negroes or give good and sufficient security for their forth-coming at the death of complainant, Agnes, and for such other and further relief as may be just and equitable.
    The defendant answered the bill, which was however, after-wards withdrawn, and the facts of the case were agreed upon by the parties, which are as follows: “It is agreed by the parties in this case, that complainants, John Polk and his wife, from the time of their intermarriage, and the other complainants from the time of their births, resided in the(State of South Carolina, until about the year 1830, when they removed to Tennessee. That the complainant Agnes Polk and her mother, Elizabeth, the wife of defendant Faris, resided in the State of South Carolina at the time of the execution of the deed of gift from the said Elizabeth to the said Agnes; that said Agnes was 18 or 19 years old at the time she executed the bill of sale mentioned ip the bill to defendant, and not of lawful age; that the copy of the deed of gift as set forth and exhibited in the bill, is a true copy of the original, which original was executed by the said Elizabeth Strain, before her marriage with defendant: that the facts set forth in the bill are all true, and that the instrument of writing or bills of sale, executed by said Agnes and John, to defendant, shall be produced as required by the bill, and are to be taken as'executed under the circumstances stated in the bill. That the statute of limitation of three years of Tennessee, and four years of South Carolina, are to be considered as relied and insisted on by defendant. That the defendant has had possession of the negroes, before, and ever since the marriage of complainant Agnes; that his possession has been adverse to complainant’s ever since his marriage, and to every body else. And it is further agreed that defendant resided in, and had possession in South Carolina, from the time of his marriage, up to about five years ago, when he removed to this State, where he has resided ever since, and thathe still continues in possession of said negroes, and that defendant intermarried with' Elizabeth Strain, 24th March, 1786.
    It is further agreed that the court shall decree upon complainant’s bill and this agreement?, unconnected with defendant’s answer, which is withdrawn.
    Chancellor Cooke was of opinion, that the absolute and entire interest in the slave, Phillis, passed by the deed from Elizabeth Strain to Agnes Brown, and thatthe statute of limitations barred a recovery by complainants, John Polk and his wife, and dismissed the bill, from which decree the complainant’s appealed to this court.
    
      H. Jl. Garrett, for the complainant.
    By the terms of the deed from Elizabeth Strain to Agnes Brown, the latter had only a life estate in the slave mentioned in the deed, with a remainder to such of her issue as might be living at her death, and in the event of her dying without issue, the property will be revested in Elizabeth Strain, the grantor.
    The Chancellor based his opinion entirely upon the rule in Shelly s’ case, and has adhered to It with as much strictness and "rigor, as did the court which decided that celebrated case. And although the rule itself may still be admitted lo some extent, to stand an unbroken pillar of the feudal system, yet it has in modem times been regarded more as a question of intention, than an arbitrary and fixed rule of the common law. The reason of the rule itself has long since ceased, and no good reason can be assigned why it should not cease to exist also. Cessante ratione, cessat ipsa lex. See Co. Litt. 376 6: (Butler’s Note.)
    The most eminent jurists of England, have upon every proper occasion endeavored to do away its operation, and it has been condemned by many celebrated jurists; vide Papillon vs. Voiee, 2 P. Wins 471: King vs. Mailing, 1 Ventres 225: Legate vs. Sewel, 1 P. Wms. 87: and vide observations of Lord Mansfield, in Long vs. Laming, 2 Burrow’s R. 1107.
    In Pennsylvania, its authority has been disregarded; Find-ley’s lessee vs. Riddle, 2 Binneys Rep. 139; and its weight much shaken in Connecticut. 5 Day’s Rep. 98: 1 Swift’s Digest 81: and aide also Mien vs. Mather, 9 Connecticut Rep. 114,
    But, be this as it may, there is not now any fixed and invariable rule that words of limitat'cn shall never in any case be construed words of purchase, juong vs. Laming, 2 Burrow 1109.
    The words c ‘heirs of the body” are frequently construed as words of purchase, or as a mere designation of the person who is intended to take. And the courts, will, to effectuate the intention, seize on any word or clause in a deed or will, to take the case from without the operation of the rule. In the case before the court, the nature of the property given, and the explanation which it is believed is given to the words “heirs of her body,” all tend strongly to prove the grantor only intended a life estate to Agnes Brown, with a remainder to her children. If this be the intention, it ought to be carried into effect. For it is settled that the rule maybe controlled by the plain intent of the grantor or testator.
    The case of Li/sZe vs. Gray, 2 Levintz 223, in principle, setlles this. In that case the words “heirs, male of the body” Were held to be words of purchase, and the evidence of inten-ticn was not stronger than in this deed.
    
      Walker vs. Snow, Palmer’s Rep. 359, was a case similar in principle to that of Lysle vs. Gray.
    
    The cases of Peacockvs. Spooner, 2 Vernon Rep. 195: Daffern vs. Daffern, 2 Vernon 362: Ward vs. Bradley, 2 Vernon 23: Hogsden vs. Bussey, 2 Atkins 89: Hobert vs. Lord Stamford, 1 Bro; P. Cases 388, Bagshaw vs. Spencer, 2' Atkins 570: 577: Allgood vs. Withers, cited 2 Burrow’s-1107: Long vs. Laming, 2 Burrow’s Rep. 1106: Warmari vs. Leaman, Finch. Rep. 279: Clare vs. Clare, Cases Tem. Talbot 21: Bakehouse vs. Wélls, 10 Modem Rep. 181: Den vs. Lile, 1 Term Rep. 593, all prove most conclusively, that “heirs of the body” are indifferently construed to be either' words of limitation or of purchase, according to the circumstances of each case and the intention of the grantor. In all of the above cases, the limitations were for life, with remainder to the heirs of the body, or to issue, and the issue or heirs were held to take as purchasers.
    But it may be objected that words of superadded limitation controled these cases; to which I answer, that the cases of Peacock vs. Spooner, Daffern vs. Daffern, Ward vs. Bradley, Hogsden vs. Bussey, and Bagshaio vs. Spencer, had nothing-in them like words of limitation superadded. The phraseo-’ logy of all of them very much resembles this case, and if they are to be regarded as authorities, they may be considered as! decisive of it.
    The above authorities fully establish the principle, that the rule in Shelly’s case, is arbritary in its character; that being' founded upon feudal reasons, it will not be suffered to defeat the apparent intention of the grantor, and that as before re-' marked, the slightest circumstance will be seized on by the' courts to-unfetter the case from its operation.
    The deed from Elizabeth Strain, carries on its face the' meaning of the grantor, in words plain and intelligible'. The phrase in the deed, “to the only proper use, &c. of Agnes Brown, for and during, and until the full end and term of her natural life,” as strongly indicates the intention of the parties, to the deed, that a- remainder was intended, and that Agnes-®rown should only have an estate for life, as if the words “onty during life” or “et non alitor,” or, “if she should so long live;)” had been used, which words, in Hodgson vs. Bussey and other of the cases before cited, were held sufficient to take them out of the rule.
    Again, in putting a construction on this deed, we must look to the circumstances under which it was made. Agnes Brown was the natural daughter of the doner. She was in the language of the law “nullius filiee” and could have no heirs, but of her body, and could be heir to no one, (Thomas Coke 171.) If she died without issue, her property would escheat, and could not by any possibility go to the mother. Do not these facts aid very much in finding out what the intention of Elizabeth Strain was? To benefit her daughter and her children, should she have any, we may suppose was her object; but if she died without children, that the State or strangers to her blood should enjoy it, cannot for a moment be supposed was ever intended or contemplated.
    Her intention therefore, was to give to her grand children, after the death of Agnes Brown, by the name and description of “heirs of her body” this property, and in the event there were no grand children, then to reinvest the property in herself.
    But it may again be objected, that although this case might fall within the rule laid down in Clare vs. Clare and Attorney General vs. Baily; yet the subsequent words in this deed, “and in default of said issue, lawfully begotten, then the said slave, &c.” has enlarged the estate of Agnes Brown into an estate tail.
    ■ The generality of these words, are always restrained by the slightest circumstances, to mean issue living at the time of the death of the tenant for life. 1 P. Wms. 432, 534: 3 P. Wms. 558: 2 Atkins 282: 2 T. Rep. 720.
    These words, when taken in connexion with the limitations which precede them, show, without doubt,’the intention was to vest a remainder in the children of Agnes Brown, living at her death, and if there were none such, the property was again to vest in the donor. It is a well settled rule in limitations of nsrsonal property, that all the limitations are good until one vests carrying the whole estate, but when one which carries the whole interest happens to vest, all the subsequent limita-lions become void. Stanly vs. Leigh, 2 P. Wms. 685: Sheffield vs. Lord Orny, 2 Atkins 287.
    But again; the words “in defaulted such issue,” if they have any influence at all in the construction of this deed, it is in favor of complainant’s.
    “Issue” is always taken in deeds to be a word of purchase. Baily vs. J\Iorris, 4 Yesey 794: Bakehouse vs. Wells, 10 Modern Rep. 181: Bagshaw vs. Spencer, 3 Atk. Rep. 570: 4 Term Rep. 299. And if the preceding limitation to the heirs of the body &c. means children of Agnes Brown, the word “sdch” in the subsequent limitation “will make it read,” for want of such children of Agnes Brown; for the word “such” confines itto such issue as is meant by the words “heirs of her body.” See Hodgson vs. Bussey, 2 Atkins 92.- Indeed the authority of Hogdson vs. Bussey, and the cases which show “issue” to be a word of purchase, conclusively prore, that if the words “heirs of the body,” standing alone were to be taken as words of limitation, yet the words “such issue” afterwards used, convert them into words of purchase, and show that the donor only used them as descriptio personae.
    
    Again: the above conclusion is unavoidable, if we attend to the proper construction of the word, “then” immediately following the words “in default of such issue.” The word “then” evidently refers to the death of Agnes Brown; “then,” i. ei at that point of time, the subseqent limitations are to take effect. The word, “then” in a grammatical sense is an adverb of time. But in limitations of estates and in framing contingencies, it is a word of reference, and relates to the determination of the first limitation in the estate, when the contingency ceases. 2 Atkins 311: IP. Wms. 564. This word taken in connection with the whole instrument proves conclusively, that whatever estate was previously given to Agnes Brown, was “then”, i. e. at her death to cease, and if it then ceased, the absolute property could not have been vested in her.
    Again: If these words in England enlarge the previous estate to an estate tail, it is to effectuate the iniention of the grantor. Here there can be no estate tail, and there is no necessity for such construction. Smith and wife vs. Chap- ■ man, 1 H. ánd Mun. 263.
    2. If my first position is sound law, that is, if the words “heirs of her body,” are word's descriptive of thos'e who are to take the property, it must follow as a- necessary conse-' quence, that the subsequent limitation is good; because, although a limitation after an indefinite failure of issue- is void; yet a limitation in default of children, or a limitation- over it* case of her dying without leaving lawful children, would be’ good; 5 Day’s Rep. 98. In such case, the limitation would take effect, if it took effect at all, within the period limited for the vesting~of an executory devise, or springing use, to wit: a life or lives in being, and twenty-one years and nine months thereafter.
    The limitation here is, and for default of such issue, then, &c. “Such issue” refers to the preceding limitation, and is controlled by it. If the preceding limitation is in effect, a remainder to her children, then the subsequent limitation will read thus, “if said Agnes Brown dies without leaviug such lawful issue, i. e., such children, then over, &c. Upon the death of Agnes Brown, if she leaves children, it vests in them; if she leaves no children, the subsequent limitation instantly vests the property in Elizabeth Strain and her heirs. See 1 Salkeld’s Rep. 225, 226: 2 Thomas Coke 535: 2 Atkins Rep. 138, 139: Goodtitle vs. Pegden, 2 Term Rep. 720.
    
    In limitations of this kind, the question is not whether the case falls- within the rule’ in Shelly’s case, but whether the limitations tend or amount to a perpetuity, and the rule in fact is only regarded as auxiliary in settling this question. Thus, an estate to a man and the heirs of bis body, or to a man for life remainder to the heirs of his body, and on a general failure of issue, remainder over to the donor, is within the rule, because it amounts to a perpetuity. But an estate to a man and the heirs of his body, or for life, and then to the heirs of his body, but if he die and have no issue at his death, remainder over, is good, and not within the rule, because this does not a-niount to a perpetuity, as the time within which the limitations must vest, if they vest at all, is within the time limited by law. See as to the above illustration the case of Higginbotton vs. Rucker, tit which this is nearly allied. 2 Call’s'Rep. 213: Dunn vs. Bray, 1 Call’s Rep. 3,39.
    In the two last cases (ñted, and also in those from Salkeld 225, and 2 Term 620, the court, in deciding that the limitations over were good on the death of the donees or devisees dying without issue, 'established incontroyertably, that if the donees or devisees had died leaving issue at their death, that issue would take the estate.
    'These decisions are in conformity .with the clear intention of the donor, which was merely to vest a life estate ⅛ Agnes Brown, and after her death in her children, and if she had no children, then to revert to the donor; and it is a' maxim that such a construction ought to be made of deeds Uut res magis valeat quam periot,” thatthe end and design should take effect ■rather than the contrary. See Dormer vs. Fortes que, 3 Atkins 1-36.
    3. If the children of Agnes Brown are entitled to the slaves, in remainder, the act of limitations vof course has ■nothing to do with the case; because they have no right to sue until the termination of the life estate.
    'But -the statute of limitations can have no effect, if the estate is an absolute one in her, because Elizabeth Strain,covenanted •and warranted t'he title against all persons. She and her husband got the property, after she had conveyed it, into their possession; and they now insistupon the act of limitations. This ■covenant is general in its nature, and operates as a covenant for quiet enjoyment, in which the rule is, that the covenantor •undertakes against the rightful acts of strangers, and the wrongful acts of himself. See Hays vs. Beckersteth, Vaughn’s Rep. 122: Platt on Cavenants 315, 319: Hobart’s Rep. 35: 2 Sanders 322: 1 Term Rep. 671: 13 East 72.
    From the above authorities, and the terms of this covenant of warranty, it is impossible to suppose a claim or assumption of title against which Elizabeth Strain is not bound to defend. It is a personal covenant and binds her as long as she lives, and can only he extinguished by a release. The wrongful assumption of title, the claiming to hold adversely against her covenant, is of itself a breach of the covenant, and if a suit were now brought upon the covenant, a recovery for the breach would be clear, and if this be so, this court will to avoid gircuity of action, estop the defendant from availing himself of that de-fence. See 14 John Rep. 194, 3 Thomas Coke 537.
    Suppose an action of covenant brought on this deed, and the breach assigned that defendants took this slave and her increase tortiously out of the possession of the plaintiffs and held and claimed them as their own, can any one doubt it would be a good breach, and could the defendant plead the statute of limitations? Certainly not: If this is so, why turn the complainant out of this court, to litigate the matter at law. If then by force of these covenants, the value of the slaves can be recovered, in damages, any title or right, whether by lapse of time or otherwise, enures and vests by operation of law in the covenantee, and the covenantor is estopped from setting up such title against the covenantee. 12 John Rep. 201: 13 John Rep. 316: Barr vs. Gratz, 4 Wheaton’s Rep.: Peck’s Rep. 24.
    Mr. Garrett also insisted that if the contract of Complainant’s made at their marriage is valid, the children or those in remainder are entitled to have the property secured during. the life estate.. He cited Johnson vs. Merril, 1 Yerger’s Rep, 71,
    
      B. Totten ⅜ G. S. Yerger, for defendant.
    The rule in Shelly’s case, it is said is based upon feudal reasons, wholly inapplicable to our country and its institutions j that the reason of the rule has long since ceased, and the rule ought to cease with it, or at least be very limited in its application. This kind of reasoning would destroy nearly every rule of law, which originated during the feudal ages.
    We think, whenever a principle is once settled, it continues to exist, whatever may have been the reason of its establishment, so long as there is subject matter for it to operate upon. See Fearne on Remainders, 85, 6, 7, 8, 9.
    In this case it is impossible to tell, what were the original reasons which caused the adoption of the rule, nor is it necessary to enquire, as it was a settled rule of the common law, which our ancestors brought with them to this country.
    
      Its authority has been acknowledged, and the rule extensively adopted in every State, where it has been discussed, and - is as binding upon this court as any -other rule of the common law. See 4 Kent’ 229 to 232, to show the various States which have recognized it, as a fixed and permanent rule of the common law. 10 Conn. Rep. 448: 2 Murphy’s Rep. 137; 1 Hill’s Ch. Rep. 37.
    We consider it riiore strictly applicable to the policy and institutions of this country, than to those of England. Our policy has been to cut off entails, to throw all kinds of property as soon into market as possible, and not permit it to be tied up or restricted in its alienation.
    If the conveyance, (the construction of which is involved in this case,) were a conveyance of real estate, it would literally fall within the operation of the rule, and vest an estate tail, in the first taker. And the law is well settled that words, which create an estate tail in realty, carry the whole and entire interest in personal estate; and, by our act of 1784, will also carry the fee real in estate.
    The rule applies to every case where there is a limitation to A for life, and a remainder limited in the same instrument to his heirs, or the heirs of his body, or issue, and where the limitations are of the same nature, unless the words “heir” or “heirs of the body’,’ are clearly demonstrated to mean a remainder to children, as purchasers, by express declaration, or by reference to other parts of the instrument, which clearly show that such was manifestly the intention of the grantor or testator. And, whatever may have been the doubts, or dicta of some judges, it is now well settled, that the words “heirs” or “heirs of the body,” are so apt and appropriate a description-of the whole line of inheritable succession, as not to admit of their being received in a different sense, without such distinct and unequivocal demonstration of intention to use them different, as cannot be misunderstood. 4 Kent 228: Hays on real Estate 15, 16, 17, 18: 20 Com. L. Rep. 512: Roe vs. Bedford, 4 M. and Selwyn: Doe vs. Harvy, 4 B. Cres. 610: Pool vs. Pool, 3 Bos. and Puller 620: Jesson vs. Wright, 2 Bligh’s Par. Cases, 1.
    
      In this case we insist there are no such words of expfana-fion.
    The deed, is to “Agnes Brown for life, and after the determination of that estate, then to the heirs of her body lawfully issuing,” and for default of such issue, to the donor and her heirs.
    The argument relied upon, is, that the words “and after the termination of that estate, then to the heirs of her body,” show that a life estate was only intended; and that these words, together with the words, “in default of such issue, then to the donor, &c.” explain and do away the technical effect of the limitations. t
    
    It is admitted, they do most clearly demonstrate that only a life estate was intended to Agnes Brown. But they do not evidence the intention more clearly, than would a simple gift for life. For the words to A for life, are as strongly indicative of the intent as language can make it.
    In every case to which the rule has been applied, the intention was to give a life estate to the first taker. And the question has been, not, whether that was intended, but whether that intention could be carried into effect, without violating the rules of law. The party not only intends to give the first taker a life estate, but by using the words ‘‘heirs” or “heirs of the body,” he intends the issue to take as a line, or class in succession, until the inheritable blood is exhausted; or in other words, intends all to take, however remote, who can claim as heirs. This intention cannot stand with the first; for if the issue take by descent, as they must do if the words include the whole inheritable line, the ancestor must necessarily have more than a life estate, or the issue or heirs cannot take in the manner pointed out by the gift. The particular intention to give a life estate, must therefore give way to the general intention, that the issue should take as heirs; for both intentions cannot exist together, unless the last intention, manifested by the use of the word heirs, &c. is negatived by words explanatory of the sense in which they were used, and not by words which merely show a life estate was designed for the first taker.
    The cases upon this point are numerous; no words or expressions, however strong, that a life estate was only intended to the first taker, will be sufficient to do away the effect of the subsequent limitations, were it otherwise, the rule itself could not exist.
    Thus: where an estate for life is expressly given, and words restrictive of the power of alienation are superadded. This,- although inconsistent with an absolute estate in the first taker, has been held insufficient to take the' case out of the operation of the rule. Hays vs.- Ford, cited Fearne on Rem.-173: 4: Perrin vs. Blake, 1 Hat. Coll. 283.
    Or, words superadded, which give a power to jointure to the first taker. Rundel vs. Ely, Carter Rep, 170: Brough-ton vs. Langsly, 2 Lord Raymond 873: King vs. Mellingy 2 Lev. 78: Frank vs. Stevens, 3 East 548.
    Or, where there is an estate for life, without impeachment for waste and power to jointure, with limitations to trustees to preserve contingent remainders. Shaw vs. Weigh, 3 Br. P. Cases 130: Jones vs. Morgan, 1 Bro. Ch. Cases 206, Papillonvs. Voice, 2 P. Wms. 471: Bennetv s. Tankerville, 19 Yesey 170: Coulson vs. Goulsonj 2 Atkins 247:: Hodg-son vs. Ambrose, 3 Bro. Par. Cases 416: Glenorchy vs. Bosville,- Cases Tem. Tal. 3: Den vs. Fucky, 5 T. R. 299:-Langley vs.- Baldwin, 1 P. Wms. 759
    Or, where the limitation is to A for life only, or for life and no longer. Robinson vs. Robinson, 3 Bro. Par. Cases- 180: Doe vs. Cooper, 1 East 229: Poe vs. Bedford, 4 M. and Selwyn 362.
    Again: it is argued, that the word “then” in this deed, immediately following the words “after the termination of said estate,” together with the subsequent words “for default of such issue,” are explanatory of the sense in which the words “heirs of the body,” were used.
    This word is not restrictive of the legal effect of the limitations in this deed. It only has reference to the time when,as heirs they shall take, that is, at the termination of the life estate. It is always used in this sense. See Rúndale vs Ely, Fearne 158: King vs. Burchel,- Fearne 163; 178, 9.
    Nor have the words “in default of such issue,” the effect contended for. Indeed these words, unless explained, would have a contrary effect, for they in general mean an indefinite failure of issue, and would of themselves create an estate tail; 2 Leigh’s Rep. 17S, 1 Sergeant and Rawl 8.
    Numerous adjudged causes have settled the import of these words. In fact they are in nearly every case to which the rule in Shelty’s case has been applied, as in Doe vs. Harvey, 4 Bar. and Cres. 610: King Vs. Mellish, 2 Lev'mtz 58: Plait vs. Poiols, 2 M. and Selwyn 65: Elton vs. Eason, 19 Vesey73: Roe vs. Bedford, 4 M. and Selwyn 362; Wright vs. Pearson, 1 Eden 119: Shelly’s case, 1 Coke 93: Garth vs. Baldwin, 2Vesey 646: Burley’s case, 1 Ven. 230: Whiting vs. Wilkins. 1 Bulstrode 215: Doe vs. Hally, 8 T. Rep. 5, and many others not necessary to he cited.
    We will next inquire, what words have been held sufficient; or insufficient to take a limitation “to the heirs of the body*” out- of the rule.
    1. If the limitation is to “heirs” or “heirs of thebody’^ in the plural, superadded words engrafted upon them, will foot do away their legal effect. Fearn on Rem: 178: Shelly’s case, 1 Coke 93: Legate vs. Sewél, 1 P. Wms; 87: Pool vs. Pool, 3 Bos. and Puller 620: Hays Vs. Ford, 2 Blk. Rep. 598: Wright vs, Pearson, 1 Eden. 119: Measure vs. Gee, 5 Bar. and Al. 910: Goodwright vs. Pullen, 2 Lord Raymond 1437: Morris vs. Ward, 8 T. Rep. 518: Roe vs. Grew, 2 Wilson 322.
    In Doe vs. Ironmonger, 3 East 533, and Doe vs. Laming,-3 Burrows 1190, superadded words, where the limitation was to heirs in the plural, were held sufficient. But in the first case, the limitation for life was equitable, and the remainder legal. The second was a case of gavelkind land, where “heirs” in the plural, answered for “heir” in the singular in lands not gavelkind.
    In Archer’s case, 1 Coke, the limitation was to the “heir” in the singular, and the superadded words, were held sufficient, hut this is denied to be law in some of the cases.
    2. Where the limitation was to A for life, “remainder to and amongst all and every, the heirs of the body of A, as well female as male,” liolden insufficient to take the case out of the rule. Doe vs. Harvey, 4 Bar. and Cres. 610,
    
      3. Where the ultimate remainder is to a person living (as in this case,) it is not sufficient, because the effect of this is only to subject the previous absolute estate, to determine upon the contingency of the donees dying without issue. Wright vs. Pearson, 1 Eden. Rep. 119.
    4. Where the limitation is for life, remainder to the heirs of the body, as' tenants in common, or in such shares as A shall appoint: Holden not sufficient. Doe vs. Goldsmith, 7 Taunton Rep. 209: Doe vs. Harvey, 4 Bar. and Cres. 610. Jesson vs. Wright, 2 Bligh’s Rep. 1.
    6. Even in cases where the remainder is limited to “issue,” which is not per se a word of limitation, unless there are su-peradded words of limitation or other clear explanatory terms, the rule applies in full force. King vs. Mellish, 2 P. Wms. 472: Glenorchy vs. Bosville, Cas. Term Tal. 3: Robinson vs. Robinson, 3 Bro. Par. Cases 180: Roe vs. Grew, 2 Wilson 322: Slum vs. Weigh, 3 Br. Par. Cases 130; King vs. Burchet, 1 Eden. 424: Den vs. Pucky, 5 T. Rep. 299: Frank vs. Sloven, 3 East, 648: Doe vs. Appleton, 4 T. Rep. 83 f Doe vs. Cooper, 1 East, 229: Attorney General vs. Sullen, 1 P. Wms. 734: Stanly vs. Leonard, 1 Eden, 87: Doe vs. Hally, 8 Term Rep; 5.
    6. But where the limitation in remainder was to thé heirs of A now living, as A could not have heirs whilst alive, the technical effect of the words was done away, and they were held merely as descriptive of the persons who were to take. Bur-chet vs. Durdant, 2 Levintz Rep. 232: 3 Bligh’s Rep. 26in note.
    
    So, where there are superadded words of limitation, the word “issue,” will be taken as as a word of purchase, as in Loddington vs. Kime, 1 Lord Ray 203. Backhouse vs. Wells, 1 Eq. Cases Ab. 184; Mandeville vs. Lackly’ 3 Ridg. Par, Cases 352: Doe vs. Collis, 4 T. Rep. 244,: Merest vs, James, 1 Brod. and Bing. 484: Barnfieldvs. Popham, 1 Eq. Cases Ab. 183.
    In the cases of —, Blk. Rep. 888: Goodlett vs Herring, I East Rep. 164: Henry vs. Purcel, Blk. Rep. 1092. Doe vs. ironmonger, 3 East Rep. 533: Right vs. Cribber, 5 Bar. and Cres. 856: Crump vs. JVbrword, 7 Taunton 363: White 
      vs. Collins, Comyns, Rep. 289: and Seward vs. Witlock, 5 East 198, the explanatory words used were holden sufficient; in nearly all of which it will he perceived there were clear words of modification. And in Henry vs. Pur cel-y Doe vs. Ironmonger, and Right vs. Crihber, the limitations: were of different qualities; the limitations for life being equitable, and the remainders legal
    Upon analyzing the limitations in the cases' before cited, it will appear that there are twelve, in which the limitations were to A for life, remainder to the heirs of his body, or heirs male or female of his body, and in default of, or for want of, or in case A die without leaving issue, remainder over. (Here the counsel named the cases.)
    There are also eleven, where the limitations were the same as above, with the addition of the words “only” or “no longer” or a jointuring power, or other words indicating that no> more than a life estate was intended to the first taker. (Here they were named.)
    There are also thirteen cases where the limitations were precisely the same, except the remainders were to “issue” instead of “heirs of the body,” a number of which were for “life only,” or other words of the like character annexed to the life estate, in all of which the court held the first taker' was tenant in tail. (Here they were named.) Making in all thirty six cases, upon wills and deeds, where the most hairsplitting mind, could not draw a distinction between the Ubii-' tations contained in them and the one under discussion.
    To these may be added as precisely in point, because the limitations were in effect the same, and personal property was the subject of them, the following : Doe vs. Dickens, Fearne on Remainders 463: Butterfield vs. Butterfield, lb. 463: Daw vs. Pilt, lb. 463, 4, 5: Threebridge vs. Kelburn, 2 Ye-sey 233. And also the American cases collected by Chancellor Kent, 4 Kent Com. 229 to 232: 10 Connecticut Rep. 448: 2 Murphy’s Rep. 137: 1 Hill’s Ch. Rep. 37:
    We will now briefly notice the authorities relied upon on the other side.
    In Lylse vs. Cray, and also in Snoio vs. Walker, the remainders were limited not to “heirs” or “heirs of the body,” but to the first son, &c. of the’ tenant for life. The words “son” or “children,” or “sons of the body,” are strictly words of purchase, unless other parts of the instrument show they were intended as words of limitation. Smith and ivife vs. Chapman, 1 Hen. and Mun. 290, 291: Ginger vs. White, Willis Rep. 348: Wild’s case, 6 Coke Rep. 17: Ive vs. Legg, cited 3 Term Rep. 488: Godwin vs. Godwin, 1 Vesey226: Doe vs. Penn, 3 Term Rep. 484. And says Mr. Fearne, the general import of the words “heir” or “heirs of the body” subsequently used in both these cases, were qualified by the preceding distinct and particular limitations to the first and other sons in tail, as well as by words of limitation superadded or grafted on them. Fearne on Rem. 152.
    
      ■Peacock vs. Spooner and Daffern vs. Godman, were both eases of marriage settlement, to which, as well as executory trusts, the rule has never been strictly applicable. But even in these cases, though decided by the Lords, there were six judges to two against their judgment. See Fearne on Rem. 493. And they may be considered as in effect overruled by ■Jfebb vs. Webb, and other cases citedby Mr. Fearne, at page 493.
    
      Ward vs. Bradly, was also the case of a marriage settlement. But the ground of the decision was, that there was a particular term of ninety-nine years taken out of the whole terna; and the father had a particular estate limited to him during ninety-nine years only; that the trusts of the whole term were not executed in the father, but it was an executory trust and rparriage settlement, and must be governed by intention; and the deed directed the trustees, after the death of thefather, to execute estates to the persons respectively that should be interested, according to their respective shares therein. These last words evidently show the children were to take as purchasers.
    
      Hodgson vs. Bussey, decided by Lord Hardwick, was a case of personal property, in which there were superadded words of limitation, and the decision must have been expressly based on these superadded words; for the same judge, in Three-bridge vs Kelburn and Garth vs. Baldwin, cited in Fearne 4.91, 492, where the limitations were the same (except the superadded words,) decided the whole interest to he in the first taker.
    
      Sir John Hobart vs. Earl Stamford, was clearly an execu-tory trust, and decided on that ground; besides there was no limitation of the legal estate. (See the case Fearne 118.) It is settled, that where the trust is executory, or the limitations do not carry the legal estate, the rule does not apply. 4 Kent’s Com. 218, 219, 220, and note C. Fearne on Rem. 117.
    The celebrated case of Bagshaw vs. Spencer, is much relied on. This case was considered hy Lord Hardwick, as an executory trust. He denied the distinction, since completely settled between executed and executory trusts. He admitted the rule in legal limitations, but denied its application to trusts which he said in the eye of a Court of Equity, were always executory. (See Fearne on Rem. 123, which shows that this was the express ground of the decision.) In the case under consideration there are no executory trusts and the limitations are all legal. Bagshaw vs- Spencer, is therefore a direct authority in our favor. And indeed, so far as it attempts to withdraw from the operation of the rule in Shelly’s case, executed trusts, it is permanently overruled. See 4 Kent’s Com. 219, 220. Hays on Property table, II,. number 47. '
    The case of Allgood vs. Withers, like Hodgson vs. Bussey, had words of limitation superadded, and besides the limitations to the heirs of the first taker were blended with a joint limitation to the heirs of persons who had no previous estate limited to them; these heirs were consequently obliged to take by purchase. Vide Fearne 120.]
    
      Long vs. Laming, was a case of gavelkind land; in which there were not only superadded words of limitation, but other express words which restricted the technical effect of the remainder to the heirs of the body. See the case and ground of its decision, in Fearne 154..
    
      Warner vs. Leman, Clare vs. Ctare,-Backhouse vs. Wells, and Loddington vs. Kime, were all cases, where the remainders were linpted to “issue,” not “heirs” or “heirs of the body.”
    
      The word “issue” Is, as perhaps we have before stated, ge-ner.ally a word of purchase, but it may be a word of limitation if so intended, or shown from other parts of the instrument: unexplained, it is generally a word of purchase. Fearne on Rem. 106, 149: 4 Kent’s Corn. 230,231: 1 H. and Mun-ford 290.
    The cases of Higginbotlom vs. Rucker and Dunn vs. Bray, cited from Gall’s Rep. have no application. There were no remainders to the heirs. The whole estate in these cases was vested in the first taker; but this estate was to be divested and vested in other persons, if he died without issue. . And the question was, whether an indefinite failure of issue was meant, in which case the limitations over would be void, or whether the donor meant “issue living at the death of the first taker,” which would make the limitations over good.
    In executory devises, or in conveyences deriving their effect from the statute of uses, the whole fee or interest, may be vested in the first taker, subject however to be divested upon the happening of some contingency, and vested in other persons. These are conditional limitations, to which the rule in Shelly’s case does not apply. Wilson on Uses 49: Loyd vs. Garew, Shower’s Par. Cases 137. But the limitations in such, cases must be so framed, that the contingency must happen, if it takes effect at all, within the period prescribed by law to prevent perpetuities. In the above cases there was no question as to what interest the first taker took. . The whole was vested in him, and the simple question was, whether it was vested absolutely or subject tobe divested, upon a failure of issue.
    
      Loving vs. Hunter, 8 Yerger’s Rep. 4, so far from conflicting with the positions assumed by us, sustains them. That case was clearly an executory trust, and this is one of the principal grounds of the decision. In that case, in the limitation to the first taker, the word “lend” was used instead of the word “give;” this the court thought vested only the equity able interest or use. In this, we apprehend with due deference, the court were mistaken; to lend or give property for life, is the same thing, and a gift of the use of a thing, is a gift of the thing itself. See Daw vs. Pitt, Fearne 464, 2 Murphy 137, 1 Hill’s Cb. Rep. 37. The same remarks will apply to Hickman vs. “Lanier, 6 Yerger 96. This Jatter case as to this point, we do not think is law.
    If we are correct in the foregoing view of the subject, it then follows, that the absolute interest in the slave, was vested in Agnes Brown, and that her claim is barred by the act of limitations, unless, as is argued, the defendant is estopped by the covenant of warranty contained in the deed.
    It may be admitted that where there is a warranty of title, and the party has no title at the time, he will be estopped from setting up any subsequently acquired title. But if the party has title at the time, as in this case, and the vendee parts with, or loses it by the act of limitations or otherwise, there is surely no breach of the covenant. The cases cited have no application; covenants for quiet enjoyment, &c. are distinct in their character from covenants of warranty; the one relates to the possession, the other to the title. If Elizabeth Strain took possession of the negro after she made the deed, and claimed to hold her adversely, she might have been sued in trover or detinue for her; but she could not have been sued for a breach of her covenant. If she was not sued within the time limited for bringing an action of trover, the title would be reinvested in her by operation of the statute of limitations. Kegler vs. Miles, M. and Yerger’s Rep.450.
    
      
       See Judge Green’s note at the end of the case.
    
   Reese, J,

delivered the opinion of the court.

The determination of this cause depends upon the legal effect of the terms used in the deed or bill of sale set forth in the pleadings, which is in the following words. (Here the Judge set out the deed as stated in the bill.)

The complainants contend that the above deed vests a life estate only in Agnes Brown, and a remainder in the other complainants, her children, as purchasers; that the words “heirs of the body” in the deed, are to be considered and taken, not as words of limitation, but of purchase. On the other hand, the defendant contends that the words used in the deed'fall within the extent of the rule in Shelly’s case; that if the conveyance had been of real estate, the legal effect of the words under the operation of the rule in Shelly’s case, would have been to vest Agnes Brown, the first taker, with the inheritance in fee tail, which the statute of 1784, ch. 22, sec. 5, would have converted into a fee simple absolute; but that the deed being for personalty, of which an estate tail cannot by law, be limited, the whole interest vested absolutely in Agñés Brown.

Two questions have been discussed, 1st. Will full effect be given to the rule in Shelly’s case in the Courts of Tennessee? 2d. Does the rule extend to and embrace the present case?

The rule in question was considered in the 23d year of the reign of Queen Elizabeth, when upon authority of cases in the year books of the reign of Edward III. and of divers other books, it was held by the Lord Chancellor of England, and all the judges except one of the puisne judges, as an acknowledged and ancient rule of law, “that when the ancestor, by any gift or conveyance, takes an estate of freehold, and in the same gift or conveyance an estate is limited, either medi-ately or immediately to his heirs in fee of in tail, that always in such cases, the “heirs of the body” are words of limitation of the estate, and not words of purchase. lCo.R.104. Mr.Preston gives a description or definition of the rule, which Chancellor Kent, a very competent judge of the matter, pronounces to be full and accurate. “When any person takes an Estate of freehold, legally or equitably, under a' deed, will, or other writing, and in the same instrument there is a limitation by way of remainder, either with or without the interposition of an intervening estate, of a right of the same legal or equitable character, to his heirs or heirs of his body, as a class of persons to take in succession, the limitation to the heirs entitles the ancestor to the whole estate.” Preston on Estates, vol. 1, p. 263.

As a ground why full effect should not be given in Tennessee, to this rule, it has been argued that it had its origin in the policy of the feudal system, when that system was in full vigor. It is alleged to have been founded upon reasons which have now, even in England, but little strength, and which in the United States never existed, in which the rulo is said not to be in harmony with our institutions; and it is contended that the reasons in which the rule originated having _ ° ° the rule itself should cease with them. The current indeed of professional opinion in England seems to be, that the rule had its origin in feodal policy, the incidents of wardship, primer sei-en, relief, ⅞-c. making estates taken by descent more beneficial to the lord, than estates taken by purchase. It is remarkable, however, that Justice Blacksfone, in his celebrated argument in the case of Perrin and Blake in the Exchequer chamber, says that in no feodal writer did he ever find a single trace of such reason assigned. That learned judge was inclined to believe that it was first established to prevent the inheritance from being in abeyance: One principal foundation for it he says, was to obviate the mischief of too frequently putting the inheritance in suspense or abeyance. Another foundation be said might be, and probably was laid in a principle diametrically opposite to the genius of the feo-dal institutions, namely, a desire to facilitate the alienation of land, and to throw it into the track of commerce one generation sooner by vesting the inheritance in the ancestor, than if he continued tenant for life, and the heir was declared a purchaser. To make this latter reason probable, he cites from the year books, the very first case in which, as he believed, the principle of the rule in Shelly’s case had been established. It is so early as 18 Ed. 2. (fob 577.) where A purchased the manor of F, to hold to himself and wife and his oldest son, and the heirs of the body of the son, and if he died without heirs of his body, then to remain to the right heirs of A, the father. The son died without issue in the father’s life time. The father became bound in a statute merchant and died, leaving another son his heir. To a writ sued out extending the lands of A upon the estate, the sheriff returned that he had delivered all the lands which A had in fee, except the manor of F, in which he had only an estate for term of life. U pon this return it was argued that A took only an estate for life, the fee simple being limited to his heirs, who took by purchase, but the court held the contrary; for this reason among others, because otherwise the fee and the right after the death of the eldest son, would have been in nobody. And Justice Blackstone concludes that the rule was of the highest antiquity, not merely grounded upon any narrow feodal principle, but applied in the very first instance we know of, to the liberal and conscientious purpose of facilitating the alienation of land by charging it with the debt of the ancestor. See Fearne on R. 85, 86. Hargrave’s Law Tracts vol. 1, p. 499, 500.

If the rule were, however, exclusively of feodal origin, its authority would not be thereby diminished, nor would that circumstance justify courts of justice in withholding obedience to it, or in refusing to give to it, its full effect. For as is justly remarked by the same learned judge last referred to, “there is hardly an ancient rule of real property but what had in it more or less of a leodal tincture, but whatever their parentage, they are now adopted by the common law of England, incorporated into its body, and so interwoven into its policy, that no court of justice in the Kingdom had either the power or (he trusted) inclination to disturb them.” Whatever may have been the origin of the rule, or how well soever it may seem adapted to attain the selfish objects, or gratify the grasping cupidity of the feodal lord, it happens to have been obviously based also upon principles of public policy and commercial convenience, sufficiently broad and deep to cause it to survive for the period of near five hundred years, the rage of legislative innovation, and all the changes and fluctuations of the most eventful era of the world, and still to challenge the willing obedience and enlightened support ..of the most learned and able minds of Great Britain and the United States. It is a rule or canon of property, which so far from being at war with the genius of our institutions, or with the liberal and commercial spirit of the age, which alike abhor the locking up and rendering'inalienable real estate and other property, seems tobe in perfect harmony with both. It is owing perhaps' to this circumstance that the rule, a gothic column found among the remains of feodality, has been preserved in all its strength to aid in’ sustaining the fabric of the modern social system.

The statute of entailments, passed in the 13th year of King Edward I. (1285,) commonly called the statute de donis, recites that “where one giveth land to another and the heirs of his body, it seemed very hard to the grantors and their heirs, that their will expressed in the grant should not be observed: instead of which after issue born, the grantee had Power t0 aliene his land, contrary to the mind of the giver, and contrary to the form of the gift.” The statute then ordained, “that the will of the giver, according to the form of the deed of gift manifestly expressed, should be observed, so that those to whom the land was given under such condition shall have no power to aliene the land so given, but if shall remain with the issue of them to whom it was giyen, after their death, or shall revert to the donor or his heirs, if issue fail.”

This statute would have locked up all lands in the Kingdom from creditors, from commerce, and from all the purposes of society. But the fictitious action of common recoveries, and the rule in Shelly’s case afterwards adopted, had some tendem cy to knockoff the fetters created by .this statute. And finally, our statute of 1784, c. 22, § 5, coming in aid of the policy of those fictitious actions and of the rule in Shelly’s case, put an end to the effect and operation of the statute de donis. It recites that, “Whereas, entails of estates tend only to raise the wealth and importance of particular families and individuals, giving them an unequal and undue influence in a republic, and prove in manifold instances, the source of great contention and injustice, be it enacted, &c., that from and after the ratification of this act, any person seized or possessed of an estate m general or special tail, whether by purchase or descent, shall be held and deemed to be seized and possessed of the same in fee simple, fully and absolutely, without any condition or limitation whatsoever, to him, his heirs and assigns for ever, and shall have full power and authority to sell and devise the same as he shall think proper; and said estate shall descend under the same rules as other estates in fee simple.” This statute, like the rule in Shelly’s case, is a rule, not of intention or construction, but of property, and like it has relation not to the wishes of the donor, but to the interests of the community; both alike tend to control individual purpose for the attainment of a public object, namely, the unlocking of property and the subjecting it to the uses ot society.

But if we are mistaken in supposing that the rule in it? intrinsic merits has even more to commend it to the cheerful obedience and entire approbation of the people of the U. States, than to those of Great Britain, where it has been so" uniformly and so staunchly maintained, still, as our ancestors brought the rule with them across the Atlantic, and it formed an element of our colonial law, it must continue until abrogated by statutory enactment to Constitute a portion of our general body of laws, and as much exacts obedience, and must be carried as fully into effect -as any other principle of the common law which we have adopted. If the reasons upon which the rule was originally founded had indeed ceased, it would not follow that the rule itself should likewise cease. For as Mr. Fearne correctly remarks, “whére those things which are the objects of any rule of law cease to exist, there the rule itself must of necessity eease for want of subject matter to relate to, or have any efféctupon; but it by no means follows, that where the same objects of a law still continue, that there the law should cease, only because the very state of things which was the first occasion of it no longer exist. The conclusion is that every rule of law once established continues to be so, whilst the subject of it éxists, until altered by solemn act of legislation.” Fearne on R; 83. Ch. J: Dorseyj 4 Harr, and Johns. R. 431, speaking of the rule in Shelly’s case and of the argument against it now under consideration} very forcibly remarks; “That to disregard rules of interpretation sanctioned by a succession of ages, and by the discussions of the most enlightened judges, under pretence that the reason of the rule no longer exist, or that the rule itself is unreasonable, would not only prostrate the great land marks of property, but would introduce a latitude of construction, boundless in its range and pernicious in its consequences.”

That views so just and enlightened have generally prevailed is shown by the uniform adoption and enforcement of the rule in the courts of the different States of the Union. For which see 4 Kent. Com. 421, &c. and the cases there cited.

We proceed now to enquire whether the terms and limitations of the deed from Elizabeth Strain to Agnes Brown, fall within the extent and operation of the rule in Shelly’s case? If this deed were a conveyance of real estate, the question would be too plain to admit of debate, or to be susceptible of illustra» tion. In its terms it falls literally within the rule. It contains 'a distinct limitation to Agnes Brown for life, with remainder to the heirs of her body lawfully issuing, and in default of such issue, to the grantor or her heirs. We hazard nothing, it is believed, in asserting that no case of a deed or common law conveyance for real estate, with terms similar to those of the deed before us, has by any court in England, been excluded from the extent and operation of the rule in Shelly’s case, from the 'time that rule was adopted up to the present moment.

We have already indicated our opinion that the rule in question is a rule of property and of public policy, not of intention merely, or construction. By this it is not meant to assert that the intention' of the grantor is to be altogether excluded as to the entire instrument, in fixing upon it a construction or interpretation. But it is intended to assert that it matters not how distinctly in point of intention it may appear, that the grantor meant that the first taker should have a life estate only; if it further appear, that by the úse of the terms, heirs' of the body, issue, sons, children, &c., he meant the descendants of the first taker should take, in their character of heirs, a de-scendible estate of inheritance, exhausting the lineal stock of the first taker; such purpose, by operation of the rule, vests' the first taker with the inheritance. In other words, it matters not how strongly or how clearly the grantor may intend that; the instrument should not be controlled by the rule of law; yet if the proper construction of the terms which he has used in the entire instrument bring it within the operation of the’rule of law, the rule of law, and not his intention must have effect. So under our statute of 1784, c. 22, § 5,-it would matter not how clearly the grantor might intend to create an estate tail and not a fee simple, yet the statute which is a rule of property and of public policy, would have effect, against such intention of the grantor, and the estate, in the language of the statute, would be held and deemed, not a fee tail, but a fee simple absolute.

The many vexed qúestions which have from time to time arisen in the application of the rule, and much of the obscurity and apparent contradiction in the decisions of. the courts upon the subject, have probably proceeded from a want of uniform attention to this distinction, or of a just application of it. In wills especially, where intention has always been favorably regarded, and been permitted to exert a controlling influence, the courts have, perhaps, sometimes erfed in not sustaining the rule- with sufficient firmness, against the presence of supposed intention. The general description of circumstances, in cases of wills, that have been allowed to repel the influence of the rule, are thus summed up by Justice Blackstone, in his celebrated argument before referred to, in Perrin vs. Blake, in the Exchequer Chamber. “All the cases that had occurred from the statute of wills to that time, (a period of above two centuries,) in which the heirs of the body had been construed to be words of purchase, were reducible to these four heads; either where no estate of freehold was given to the ancestor, or where no estate of inheritance was given to the heir, or where other explanatory words-were immediately subjoined to the freehold estate; or lastly, where a new inheritance was grafted on the ‘heirs’ of the body.” 1 Harg. Law Tracts, 507. In the deed before us, none of these circumstances occur. Mr. Hargrave, in his able remarks upon the rule in Shelly’s case, 1 Harg. Law tracts 562, 577, says: “If the party entailing meant to build up a succession of heirs on the estate of the tenant for life, he would apply the rule, even though the party should express in his will that the rule should not be applied, and should fur-ther express, that the remainder to the heirs of the tenant for life should operate by purchase.” Mr. Fearne, in commenting upon this observation, remarks, that it might at first glance' be thought to bear against the leading principles in the construction of wills, namely, the intention of the testator; but he adds, upon examination this appears to be only in effect striking the balance between two incompatible intentions; the one' that the whole line of heirs and those only shall take, the oth„er that they shall take by purchase. Fearne on R. 191. In' the case of Perrin vs. Blake, the court of the Exchequer Chamber, in their judgment, struck the balance in the same way, between incompatible intentions. In that case the lim-4 itations were, to A for life, remainder to the heirs of the body of A, remainder to testators daughters for their lives, &'c. And the testator declared it to be his intent that A should not sell or dispose of his estate for a longer term than his life,' and to that intent devised it to A for life, remainder to B and his heirs during the life of A. The court determined that A was tenant in tail, and yet it was beyond all doubt, that the testator intended he should have a life estate only. Mr. Hays, in his essay, remarking upon this case observes, “that it was pending above thirty years, yet the simple question was whether the testator had indicated an intention to designate individuals under the term ‘heirs.’ He unquestionably meant objects to take by purchase, but unless he meant other objects than heirs, A was beyond all dispute, tenant in tail: The superadded declaration was quite consistent with an intention to use the word heirs in its proper sense.”

So also in the case of Jones vs. Morgan, 1. Bro. C. C. 206. The gift was to A for life, without impeachment of waste, to the heirs male of the body of A, severally and respectively and in remainder, the one after the other, as they and every of them shall be in seniority of age and priority of birth, with remainder over. There were powers to A to lease and jointure and charge with portions. All these accumulated circumstances tended strongly to show, indeed left no doubt, that the testator’s intention was, that A should have a life estate only. Yet he was adjudged by operation of the rule, to be tenant in tail, and vested with the inheritance. Lord Chancellor Thurlow, who determined the cause, observes, “It is immaterial that the testator meant the first estate to be an estate for life. I take1 it, that in all cases the testator does mean so. I rest it upon what he meant after-wards. If he meant that every other person who should be his heir, should take, he meant what the law would not suffer him to give, or the heir to take as a purchaser. All possible heirs must take as heirs.”

^ So prevalent is the influence of this general intention when, expressed, that the issue shall take as heirs, that even the word “son”, which is properly a word of purchase, if used so as to prove that the testator meant a class to. take in succession as heirs, will be construed a word of limitation, and vest the in- * heritance in the tenant for life. As in the case of Robinson t vs. Robinson, determined in the House of Lords, 3 Bro. Parl. C. 180. The gift was to A for life, and no longer,! 'provided he took the testator’s name of R, and lived in testa-p tor’s house at B, with remainder to such son as he shall have lawfully to be begotten, taking the name of R, and for default of such issue, then over, &c. The decision was that A was tenant in tail; and the ground of the decision was, that the word son as used, was nomen collectivum, and equivalent to heirs male of the body, which let in the rule in Shelly’s case. Here it was not necessary to take away the force of any technical words of fixed meaning, such as “heirs of the body,” but merely to put a plain construction on the words which the testator had actually used..

So also in the great case of Jesson vs. Wright, 2 Bligh’s Cases in the House of Lords, p. 1. The gift was to A for life, he keeping the building in tenantable repair, to the heirs of the body of A in such shares and proportions as he by deed or will shall appoint, and for want of appointment, then to the heirs of the body of A, share and share alike, as tenants in common, and if but one child, the whole to such child, and for want of such issue, over, &c. It was held in the House of Lords, that A was tenant in tail and vested with the inheritance. In that case, Lord Eldon, then Chancellor, remarks, “if the words children and child, are so to be considered as merely within the meaning of the words “heirs of the body,” which words comprehend them and other objects of the testator’s bounty, (and I do not see what right I have to restrict the meaning of the word ‘issue,’) there is an end of ■ the question. Ido not go through the cases. Upon the whole, I think it is clear that the testator intended that all the issue of the first taker should fail before the estate should go ever according to the final limitation. I am sorry that such a decision is necessary, because when we thus enforce a paramount intention, we enable the first taker to destroy both the general and particular intent. But it is more important to maintain the rules of law than to provide against the hardships of particular cases.” Lord Redesdale, in the same case, in his usual luminous and direct manner remarks, “that it is dan-§erous where words have a fixed legal effect, to suffer them t0 contr°hed without some clear expression or necessary implication. In this case it is argued that the testator did not jmean to use the words ‘heirs of the body,’ in their ordinary legal sense, because there are other inconsistent words. But it only follows that he was ignorant of the effect of the one or of the other. All the cases but Doe vs. Goff, decide that the latter words, unless they contain a clear expression or a •necessary implication of some intent, contrary to the legal import of the former, are to be rejected. That the general intent should overrule the particular., is not the most accurate expression of the principle of decision. The rule is, that technical words shall have their legal,.effect, unless from subsequent inconsistent wo.rds it is very clear that the testator .meant otherwise. Those who decide upon such cases ought not to rely on petty distinctions, which only mislead parties; but look to the words used in the will. The words ‘for want of such issue,’ are far from being sufficient to overrule ‘heirs of the body.’ They have almost constantly been construed to mean an indefinite failure of ‘issue and of themselves, have frequently been held to give an estate tail.”

After the citation of authorities so strong and decisive, it is scarcely necessary to remark, that the words in the deed before the court, “after the determination of that estate, then,” &c., relied on in argument to change the legal effect of the words, “heirs of the body,” from words of limitation to words of purchase, have not the slightest tendency to produce such result. Indeed, it would be doing violence, not only to the fixed and obvious meaning and legal effect of the terms “heirs of the body,” if held in this case to be words of purchase, but to the general intention of the grantor, to be collected from the other portions of the instrument, and arising also from the fact, that Agnes Brown, the first laker, was, at the time the deed was made, not more than two or three years of age, and the grantor therefore would probably look to the heirs of her body as a class to take as heirs, and could hardly be supposed to look to a portion of them, to wit, children living at a particular time, as individuals, the special objects of her bounty. This case indeed, is so clear of all difficulty upon ibo words of the instrument, as not to have merited the attention which has been bestowed upon it, except for the reason that it is the first case in this State, which has distinctly brought up the rule in Shelly’s case for discussion, and the determination of which, must necessarily be placed exclusively upon that rule. It were useless, however, to go further into the cases. They are very numerous and must be familiar to that portion of the profession who have directed their researches into this branch of legal learning. Those cases, too, have received the most severe and elaborate analysis from minds as subtle and powerful as ever adorned the profession, or illustrated the science of law.

But it has been urged that however correct might be the view of the subject which has been taken, if the deed before the court were a conveyance of real estate, yet, as it is for personal property, the rule in Shelly’s case will not apply to it. But by a well settled principle of the common law, the limitation of personal estate to one in tail vests the whole in him. Fearne, on R. 463. In Roper’s Treatise on the Law of Legacies, vol. 2, p. 393, it is laid down as a principle, that if personal estate be given by testament to A, and the heirs of his body, as such words would create an express estate tail in freehold lands, if applied to them,' so in personal estate, if applied to it, such words will have the effect to vest the absolute interest, because such property cannot be entailed, therefore, the first taker will take the absolute interest in the bequest, and the remainder or executory limitations to the heirs of the body, and the subsequent limitations, if any, depending upon the failure of them, will have no. effect. It will make no difference in regard to the construction, that the interest or profits only are given to the first taker, and the principal to the heirs.” This principle is proved by many cases. See Scale vs. Scale, 1 P. Wm. 290, and also, Dod vs.Dickerson, 8 Vin. 451, and the case of Butterfield vs. Butterfield, 1 Ves. Sen. 133, 134. Where a testator by his will devised that ¿6400 should be put out on good security for his son T, that he might have the interest of it for his life, and for the lawful heirs of his body; and if it 'should so'- happen that he should die without heirs, it should go to testator’s youngest eon J. B., Lord Hardwick decided that the whole vested* ftf the first taker, and the limitation over was too remote. In the case of Daw vs. Lord Chatham, 1 Madd. 488; 1 Mer. 278, and 5 Bro. Parl. Ca. 450, the same point is decided, although in that case the devise to the first taker was only of the dividends and payments of stock and annuities, and of the use of furniture during life-. In the case of Chandas vs. Price, 3 Ves. Jr. 99, Lord Eldon remarking upon tfie above case, says, “In Daw vs. Lord Chatham, the whole contemplation of the argument in support of the decree of the Lords Commissioners, was that the rule'in Shelly⅛ case could not apply to' ⅜ bequest purely of personal property. The distinction taken by Lord Talbott in Atkinson vs. Atkinson, 3 P. Wms. 258, that where the words would give an express estate tail', the construction' of law must obtain, bút wheré only an implied estate tail, it should not, was very much labored in Daw vs. Lord Chatham. For in that case there was manifestly art express estate for life, and there were circumstances to show how anxiously the testator endeavored to restrain it to an interest for life; from the manner in which the question was left to the judges, and from some notes, I have concluded that .the distinction is exploded; and that it is to be taken as a general rule, that where the words would raise an estate tail in real estate, they will' give the absolute property in personalty, and if there is no distinct' expression to restrain it to the time the few allows, this consequence must prevail, whatever is the intention.

In the same State, (South Carolina,) in which the'deed of gift before the court was made, and in which the parties to this suit resided until recently, the case of Dott et al vs. Cunnington, 1 Bay’s. R. 447, was decided, founded upon a' deed for personal1 property, in its'terms- véfy like! the present. A special verdict stated, that “Sarah Baker, by deed poll, gave her daughter, Sarah Dott, (wife of David Dott,) sundry ne-groes, &c. distinct from her husband, during life, and at her death to the heirs of her body; that Mrs. Dott then had issue the plaintiff, her eldest son, and several other children, and sOon after her husband, David Dott, died, and she afterwards married John Fyffe, and that after the marriage,- the- said Fyffe and his wife, viz. in 1776, sold part of the negroes in question .to the defendant, Cunnington.” The special verdict-then submits the points of law to the court, whether Mrs. Dott had a life estate only in the negroes, with a limitation over on her death, or whether the whole vested in her at first. ■'The case was fully argued before Rutledge, Ch. J. Burke, Grimke, Waties and Bay justices, who were unanimously of opinion, that the words, “at the death to the heirs of her body,” were words of limitation and not words of purchase; that the court must ,be governed by the plain rules of law, and the legal import of the phrases which constitute an .estate tail, which being too remote and tending to a perpetuity of a chattel, •the whole vested in Mrs Dott the first taker.

There are many other American cases which apply and give effect to the rule in Shelly’s case to devises and conveyances of personal property. Upon the whole, therefore, we feel very clear that the gift from Elizabeth Strain to Agnes Brown for life, with remainder to the heirs of her body, vested the entire interest in Agnes Brown; and therefore, that the statutes of limitation have barred the right of the complainants. The decree of the Chancellor, which dismissed 'the bill, must consequently be affirmed...

.GREEN, J.

I fully concur with the result of the foregoing opinion; but I adhere to the views expressed by me in Loving vs. Hunter, as to the reason an.’ policy of the rule in Shelly’s case.

Judgment affirmed.  