
    John D. Carroll vs. William H. Renich et al.
    A marriage contract made in Tennessee by parties resident there at the time, and where the marriage also took place there, must be construed according to the laws of that state; it seems it would be otherwise if it were made with a view to its execution elsewhere.
    By the law of Tennessee, where a slave is conveyed to one for life and on the termination of the life estate then to the heirs of the body of the tenant for life, and in default thereof, to the grantor and his heirs, the absolute right and title to the slave was vested in the tenant for life.
    By a contract made in Tennessee in contemplation of marriage, certain slaves owned by the wife were conveyed to a trustee “for the use of the wife during her natural life and from the termination of that estate to the heirs of her body and their heirs forever, and in case she should die without such heirs, or having such heirs they should die before they arrive at mature age, then to her brothers by her mother’s side and their heirs forever.” The marriage took place, the wife died soon after giving birth to a son, who lived to be sixteen years of age and died, the husband having removed with the property to this state ; it was held, on a bill by the brothers of the full blood of the wife, that the property by the deed of marriage settlement, vested absolutely in the wife, and on her marriage in the husband.
    Limitations in marriage agreements already executed, are subject to the same rules that limitations contained in other instruments are; it is only in cases of marriage articles, where the settlement is thereafter to be made and the trusts are executory that an exception to the general rule is permitted.
    By marriage agreements the marital rights are excluded only to the extent that a valid legal instrument operates to do so ; where therefore a deed of settlement made in contemplation of marriage, made a limitation over of slaves to the intended wife for life, and after the life estate to the heirs of the tenant for life, and in default thereof to third parties, the limitation over being otherwise void; the fact that the slaves belonged to the wife at the time of the settlement and that the husband joined in the conveyance will not render it valid; the limitation over being void and the husband by law being entitled to all the personal property of the wife at the time of the marriage, will be entitled also to such slaves.
    How far in this state a limitation in a deed after a life estate to the heirs of the body of the tenant for life, and in default therof, to third persons, is valid and such third persons in default of such heirs -will take,— Qucere ? It seems that the proviso to the section abolishing entails, which says “ provided that any person may make a conveyance or devise of lands to a succession of donees then living, and the heir or heirs of the body of the remainder-men, and in default thereof to the right heirs of the donor in fee simple.” H. & H. § 24, p. 348 ; and also the statutes in regard to contingent limitations and executory devises, (H. & H. 349, § 26,) alter the common law on the subject of such limitations.
    On appeal from the decree of the vice chancery court held at Carrolton; Hon. Henry Dickinson, vice chancellor.
    James T. Renich, William H. Renich, and Rufus Renich exhibited their bill against John D. Carroll and others, in which they aver that they were the full brothers, by the mother’s side, of Rachel Renich; that in 1828 the family were residing in Hardeman county, Tennessee, and in January of that year their sister Rachel intermarried with John D. Carroll; having previously entered into a marriage contract with him. That by this marriage contract certain negro slaves named in it were granted and conveyed to James Titus, to hold as trustee the said property, subject to the following limitations and trusts, that is to say: “ from and after the solemnization of said marriage to the use and benefit and behoof of the said Rachel, for and during the term and period of her natural life, and at her death to the heirs of her body and their heirs forever; and if she should die without such heirs, or having such heirs, and they should die before they arrived at mature age, then to her brothers by her mother’s side, their heirs and assigns forever.”
    The bill further averred that Rachel died in Hardeman county, Tennessee, in the year 1829, and had only one child, a son called Andrew J. Carroll, the only issue of the marriage, who was born shortly before his mother’s death, she having died in child-bed; that Andrew J. Carroll lived about sixteen years, when he also died. That the slaves, conveyed by the marriage settlement, and their increase, were in the possession, in Carroll county, in this state, of Richmond Carroll, who had, during the life time of Andrew J. Carroll, acted as his guardian.
    
      The complainants averred their right to these slaves by virtue of the provisions in the marriage settlement, and prayed accordingly.
    The defendants demurred to the bill; and the vice-chancellor overruled their demurrer; and they declining to answer further he entered a final decree against them in accordance with the prayer of the bill, and they appealed.
    
      Yerger and Scott for appellants.
    1. If the son or heir of Mrs. Carroll had arrived at mature age, at the time of his death, being then sixteen years old, the property, in our view of the case, was absolutely vested in him, which would defeat the claim set up by the complainants.
    Age is a subject of much discussion in the books, and the laws of all civilized countries have variously defined the periods of majority, minority, &c., but there is no mention of a period of “ mature age.” The period of majority may wear the age of maturity, but it does not follow that the phrase “mature age” means the age of majority. According to the rule of the common law, the period of absolute majority, in both sexes, is twenty-one years, and such is the rule in most of the states of this union. 2 Kent’s Com. 232.
    The law considers an infant of mature age, for many purposes, before he arrives at the age of majority, or twenty-one years. An infant at the age of fourteen, if a male, and twelve, if a female, may make a valid contract of marriage. At fourteen, he has arrived at the years of discretion, and may not only marry, but choose a guardian. He may act as executor at the age of seventeen. Age is the time when the law allows persons to do acts, which for want of years they were prohibited from doing before. The law, then considers them mature to do any act which it authorizes them to do, or which may be for their benefit. For some purposes a person is not mature even at the age of twenty-one. He could not be a representative in congress, before'he is twenty-five years old; nor be a senator until thirty; nor president until thirty-jive. Then it seems that a mature age is not a fixed and certain period in the law. The age of majority, or twenty-one years, is not the only period of maturity known to the law.
    2. But the rule in Phillips’s case will govern here, by which the whole estate was vested in Mrs. Carroll. Whenever, by deed, will, or other writing, the ancestor takes an estate of freehold, either legal or equitable, and in the same instrument there is a limitation by way of remainder, (either with or without an intervening estate) of the same legal or equitable character to his heirs or heirs of his body, the limitation to the heirs entitles the ancestor to the whole estate.
    This case, it is thought, falls within the above rule, which is fully and ably examined in the case of Polk et al. v. Faris, 9 Yerg. R.; to which the court is referred without further comment. 9 Yerg. R. 209.
    
      William G. Thompson, for appellants.
    1 Co. R. 104; 1 Preston on Estates, 263; Robinson v. Robinson, 3 Bro. Pari. C. ISO; Jesson v. Wright, 2 Bligh’s Cases in the House of Lords. There the case was of a gift to A. during his life, and to the heirs of his body, and for want of such issue, remainder 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, remarked, “I think it is clear that the testator intended that all the issue of the first taker should fail before the estate should go over according to the final limitation.” And the case turned on that point. In the same case, Lord Redesdale remarked, “ The words ‘ for want of such issue,’ are far from being sufficient to overrule £ heirs of the body.’ And the case at bar, notwithstanding the words, ‘ in case she should die without heirs, or having such heirs, they should die before mature age,’ it was clearly intended that all the issue of the first taker should fail before the estate should go over according to the final limitation ; and those words are not sufficient to overrule ‘ heirs of her body, and their heirs forever.’ ”
    It will appear clearly, from an examination of the foregoing authorities, in the order in which I have cited them, that if the deed before the court were a conveyance of real estate, the rule in Shelly’s case would apply to it; that the words used would create an estate in tail. The limitation of personal estate to one in tail vests the whole in him. Fearne on Rem. 463; 2 Roper on Legacies, 393.
    The deed was made in the state of Tennessee, where the parties then resided. According to the decision of the supreme court of that state, in Polk and others v. Paris, 9 Yerger, in which the statute of that state was construed, Mrs. Carroll took the whole estate. It was a vested interest.
    
      William Thompson, on same side.
    
      Sheppard, for appellees.
    The rule that the words “heirs of the body” are words of limitation and not of purchase, was established in Shelley’s case, because it was, according to the feudal institutions and policy, more beneficial for the lord that the heir should take by descent, and upon a presumed intention, than all the issue of the first donee, ad infinitum, should take. And all the cases now recognize the rule solely on the latter ground. It is regarded as a rule of evidence of intention, and not as a rule of law of so permanent and substantial nature as not to yield when a different interest is. made manifest.
    The case of marriage settlement is an exception to the application of the rule. 1st. Because the issue of the marriage are within the consideration of the marriage, and it is presumed the parents designed to make a provision for them. 2d. It is more beneficial for the issue to take as purchasers, as it is ■then without the power of the parents to defeat the provision. This exception was first made in case of Peacock v. Spooner, •decided in 1690, on appeal to the house of lords. 2 Yern. Ch. R. 195. The doctrine of this case was recognized and sustained in Dajfom v. Goodman, 2 Yern. 361, and Ward v. Bradley, Ibid. 23. Hodgesson v. Bussey, 2 Atk. R. 89, is a direct authority on this point, and fully covers the case at bar. The same rule is recognized and adopted in South Carolina. Case reported 1 Dessaus. R. 437, 444.
    
      These cases were decided on the ground of presumed intention, from the nature of the contract; but the expressions and language of this settlement make the position much stronger in favor of the last donees.
    1. The deed shows that Rachel Renich should not take a greater interest than a life estate; it gives the property to her during her natural life, and from and after the end and termination of that estate to the heirs, &c. In case of wills the rule does not apply if it is shown that the donee should not take a greater interest than an estate for life, and the same latitude of construction is adopted in construction of trusts as in wills, in favor of the intent.
    2. To the words heirs, &c. further words of limitation are added, showing they were regarded as a new stock or root of inheritance.
    3. The limitation to the heirs, &c. is qualified with a condition that they arrive at full age. And in order that such limitation should enure, to enlarge the prior estate the heir must take under the settlement as full and perfect an estate as he would by descent from the ancestor.
    In this view the words being those of purchase the limitations may be regarded as the limitations of the fee after the death of Rachel Renich, with a double aspect, first, to the children of the marriage who arrive at the age of ^wenty-one, and in default of them to the appellees. That such construction is allowed, see 3 Term R. 143.
    The word such qualifies and restrains the general expression, and avoids a perpetuity.
    In Radford v. Radford, 15 Eng. Ch. R. 486, the general expression of failure of issue, preceded by a prior limitation, was held to refer to those who were to take under such prior limitation, and was not too remote.
    A use may be limited in as full and ample a manner, and on same conditions as by executory devise. The conveyance of a chattel interest in trust is, in equity, regarded as a use before the statute of uses of Henry VIII. 4 Kent’s Com. 301; Cruise’s Digest, tit. Use and Trust.
    
      A fee may be limited after a fee, so that it avoids a perpetuity. 4 Kent, 276.
    If the words should be construed as words of limitation, which would give a fee to Rachel Renieh, the last limitations could still be regarded as a shifting use, the happening of the condition, according to the whole scope and intent of the settlement being confined to the time of the death of the first taker, or twenty-one years thereafter.
    This is strictly a question of intention, and the cases cited, and others arising on the construction of wills, show that the court will be astute to seize upon any circumstances to sustain the limitation.
   Mr. Justice Clayton

delivered the opinion of the court.

In the year 1828, Rachel Renieh being about to intermarry with the appellant, John D. Carroll, both parties being residents of the state of Tennessee, entered into an agreement with him, by which it was stipulated that certain slaves, the property of said Rachel, should be vested in a trustee, “ for the use of said Rachel, during her natural life, and from the termination of that estate, to the heirs of her body and their heirs forever, and in case she should die without such heirs, or having such heirs, they should die, before they arrive at mature age, then to her brothers by her mother’s side, and their heirs forever.” '

The marriage took place; the only issue was one son, who died at the age of sixteen years ; the mother having died soon after his birth. This bill was filed by her brothers of the full blood, who claim the property under the marriage settlement, in the events which have taken place. A demurrer was filed by Carroll, the husband, which was overruled by the vice-chancellor ; and the cause brought to this court.

It is insisted, in argument, that the instrument having been executed in Tennessee, by parties resident there at the time, and the marriage having taken place there, must be construed according to the laws of that state. We concur in this view. The law of the place of the contract must determine its validity, and govern the extent of its operation, unless it were made with a view to its execution elsewhere. Story’s Con. Laws, 200, 3.

It is next contended that the supreme court of Tennessee, has settled the construction of instruments of this character, and that we must follow their decision. The case of Polk v. Faris, 9 Yerger, 207, is relied on as having this effect. The material words of the instrument in that case, were to have and to hold the said property (slaves) to her 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 to me and my heirs forever.”

The court, on the authority of the rule in Shelly’s case, held that the whole estate vested in the first taker. The court stated the rule as defined by Mr. Preston, and abridged by chancellor Kent in his Commentaries, vol. 4, p. 215, which however hardly does entire justice to the full and comprehensive definition of the former. The rule, in the words of Mr. Preston, is, that, “When a person takes an estate of freehold, legally or equitably, under a deed, will, or other writing, and afterwards in the same deed, will, or other writing, there is a limitation by way of remainder, with or without the interposition of any other estate, of an interest of the same quality, as legal or equitable, to his heirs generally, or his heirs of his body; by that name in deeds or writings of conveyance, and by that or some such name in wills, and as a class or denomination of persons, to take in succession from generation to generation; the limitation to the heirs will entitle the person or ancestor himself to the estate or interest imported by that limitation.” Prest, on Est. 263.

In legal effect there is certainly no difference between the words of the instrument in the case of Polk v. Faris, above cited, and those in this case. Two reasons have been assigned in argument, however, for a different construction. The first is, in the case before us the question grows out of a marriage agreement; in the other it was a deed of gift to a child.

The answer to this is, that marriage agreements already executed, are subject to the same rules, with limitations contained in other instruments. It is only in cases of marriage articles, where the settlement is thereafter to be made, and the trusts are executory, that an exception to the general rule is permitted. 1 Prest. Est. 887, 93. The doctrine is thus laid down, in a treatise upon the subject: A settlement actually made, is construed according to the strict legal rules of construction. If, therefore, by a settlement before marriage, without articles, the estate is limited to the use of, or in trust for the settler for life, with remainder to the use of, or in trust for the heirs of his body, he will be considered as tenant in tail; though, under articles so expressed, he would only be considered as tenant for life.” Atherley on Marriage Settlements, 151; 25 Law. Lib. 79. In the case before us the settlement was executed before the marriage, and there is no room for the exception.

The other reason assigned is, that the slaves belonged to the wife before marriage, and the husband joined in the conveyance. This does not vary the rule. Without a settlement, as the law stood in Tennessee, the husband would have acquired a right to all the personal property of the wife in possession at the time of the marriage. By marriage agreement the marital rights are excluded, only to the extent, that a valid legal instrument operates to do so. If the instrument transcend the limits prescribed by law, and thus defeat its own end and object, it has no effect. Under the circumstances the husband’s rights in this instance must prevail.

We wish it however to be distinctly understood, that this opinion is given solely with reference to the laws of Tennessee. It is a case of first impression in this state, and we wish no misapprehension of our views on the point. We have a strong belief, that the statute of this state has changed the rule on this subject, and relieved it from the intricacy and embarrassment which have perplexed the common law and involved it in minute and subtle distinctions and refinements. The case of Booher v. Booher, 5 Hum., shows that in Tennessee, words of apparently the same meaning in common parlance, with those in Polk v. Faris, have received a very different construction.

We extracted the rule from Preston at length, that we might place itin contrast and connection with the simple and plain provisions of our statute. The proviso to the section abolishing entails says, — Provided that any person may make a conveyance or devise of lands to a succession of donees then living, and the heir or heirs of the body of the remainder-man, and in default thereof, to the right heirs of the donor in fee simple.” H. & H. sect. 24, p. 348. The boundaries of such limitations are here clearly defined.

A rule not less explicit is also prescribed in regard to contingent limitations and executory devises, and a principle of construction laid down which frees these matters of much of the obscurity, which has proved so fruitful a source of litigation in other states. Ib. 349, sec. 26.

On the whole, the decree of the court below is reversed, and the bill dismissed.  