
    [211] [*] DEN, M’GINNIS and ux. against M’PEAKE.
    HT EJECTMEHT
    A grant in consideration of natural love, by a father to a child, of an estate tail, is such an advancement that bars pro tanto, her share in his real estate, after his death.
    This action was brought to recover the eighth part of a lot of land containing thirty-one acres, in the township of Kingwood, in the possession of the defendant. The cause was tried before his honor the Chief Justice, at the October Hunterdon Circuit, 1806. On the trial, it appeared in evidence, that James Thatcher, the father of Susanna M’Ginnis, one of the lessors of the plaintiff, died seized of the premises about eight years before, without leaving any last will and testament, leaving one son and six daughters. That the defendant, Anna M’Peake, was one of his daughters. That the said James Thatcher died seized in all, of about 260 or 300 acres of land, tinder our act of Assembly, altering the law directing the descent of real estates, the lessors of the plaintiff, in right of Susanna, claimed one-eighth part of the premises.
    The defendant gave in evidence a deed executed by the said James Thatcher in his lifetime, to the said Susanna M’Ginnis his daughter, one of the lessors, for [*] twenty-seven acres of land; and then proved that the land contained in the said deed to Susanna M’Ginnis, and which she was then in the possession of, was worth considerably more than one-eighth part of the land, which her father, the said James Thatcher, died [212] seized of, including the land contained in the before mentioned deed to Susanna M’Ginnis, with a view of setting up as a defense, the second proviso in the 1st section of the act of Assembly, altering the law directing the descent of real estate, Pat. 44, barring the issue of an ancestor that hath been advanced by such ancestor in his lifetime, of any part of his real estate, in proportion to such advancement.
    On which, the counsel- for the plaintiff moved the court, that the evidence of the defendant should be overruled, on the grounda that the estate conveyed by the said James Thatcher to his daughter, Susanna M’Ginnis, was not such an estate as could be brought into hotch-pot, under the statute altering the law directing the desceut of real estates; and the Chief Justice being of that opinion, overruled the testimony of the defendant, and directed the jury to find a verdict for the plaintiff, which they accordingly did. The language of the deed was to this effect: Unto Susanna M’Ginnis, for her support during her natural life; and after her decease, to the heirs of her body, and to their heirs and assigns forever.
    
    On the coming in of the postea, the counsel for the defendant, took a-rule calling on the plaintiff to show cause why the verdict should not be set aside, and a new trial ordered, on the ground of the court overruling legal evidence, and a wrong direction to the jury. This rule was argued in May Term last.
    
      Mr. Maxwell, for the defendant, contended,
    1st. That the estate created by the deed to Susanna M’Ginnis was a fee tail, and not an estate for life; that the words in the premises and habendum of the deed were in substance the same, and both created an estate tail. In support of this he cited 1 Coke 104; [*] Shelley’s case, Carthew 174; 2 Salk. 679; 2 Lord Ray. 873; 2 Stra. 729, 1125; 3 Wil. 322; 2 At. 266. He said that the case of Perrine v. Blake was not law.
    2d. That this being an estate tail, it must be brought into hotch-pot. Pat. 44; Coke Lit. from 176a to 179b. That the ease of hotch-pot does not take place at common law, except in cases of frank marriage, which is a species of estate tail.
    3d. That even if the estate is an estate for life, yet he said by our acts of Assembly it must be put into hotch-pot pro tanto.
    
    4th. That before an heir can bring an ejectment for the lands of his ancestor, he must first put the lands advanced him in hotch-pot; the child advanced must do the first act, that is, put his advancement into hotch-pot.
    
      Mr. P. Stookton, for the plaintiff, said:
    1st. That he did not deny the general doctrine, [213] that a devise to a man of an estate for life, remainder to the heirs of his body, creates a fee tail estate; but he said that it was confined to those cases where an immediate remainder was devised to the heirs of the body. That the case under consideration did not come within the rule; that in this case there was a second devise over. It was to Susanna M’Ginnis during her life; then to heirs of her body, and then again to their heirs forever. In support of this distinction he cited 1 Vent. 232; 2 Stra. 729.
    
    2d. That the act of Assembly only regulates the descent of fee simple estates; and the proviso under consideration must be construed to relate to an advancement of a fee simple estate only. Nor could he see how the doctrine of hotch-pot could be earned into execution under our act of Assembly. Frank marriage, he said, was a different thing. This act was intended to put all the children on an equal footing; but this construction, he apprehended, would create an [*] inequality; it ought to apply only to fee simple estates; any other construction would cause confusion and uncertainty.
    
      Mr. Maxwell, in reply,
    said, that the latter words in the deed, to wit, their heirs forever hereafter, did not change it from an estate-tail to a lesser estate, but that the word estate made use of by the act is to be considered any estate, either for life in tail or in fee; that the regular rule of law to be pursued under the act is to apply for a partition of the land, and to offer to put into hotch-pot the land advanced.
    The court took time to consider the case, and at this term,
   Rossell, J.

— Said that he was of opinion that the deed from the intestate, James Thatcher, to Susanna M’Ginnis, ought to have been admitted in evidence on the trial of the cause; this being' overruled, he was of opinion that a new trial should be had.

Pennington, J.

— It appears, from the report of the Chief Justice, that on the trial of this cause, satisfactory evidence was given that James Thatcher (the father-both of Susanna M’Ginnis, one of the lessors of the plaintiff, in whose right the action was brought, and of Anna M’Peake, the defendant) died seized of the premises in question, without leaving any last will and testament. That the said James Thatcher left seven children; one son and six daughters. That the lessors of ihe plaintiff claim one-eighth of the premises in question, in virtue of our statute altering the law directing the descent of real estates. That the defendant, by way of defense, gave iu evidence a deed from James Thatcher, the father, to Susanna M’Ginnis, for twenty-seven acres of land. That she possessed the same, and [214] attempted to prove this land was of equal or superior value to an eighth part of the real estate, of which the said James Thatcher died seized, with a view of contending before the jury that under the second proviso in the same section of the act on [*] which the lessors claim title, they had no right to recover, the said Susanna being advanced by her father, in her lifetime, of real estate equal if not superior to the eighth part which she claimed. The whole of this evidence was overruled by the Chief Justice, on the ground that the deed from the father to the daughter did not convey such an estate as could be considered as an advancement under the proviso in the act. The whole, therefore, turns upon this point; and to form a correct opinion, it will be necessary to compare the language of the proviso with the operative words of the deed.

The act, after directing the manner of descent, in oases where an ancestor dies intestate, leaving two or more sons, or sons and daughters, has the following proviso: “ Provided, also, that if any such ancestor shall, in his lifetime, have given or advanced any part of his or her real estate to any of his or her issue, such issue shall not be entitled to any part or share of such ancestor’s real estate, descending under or by virtue of this act, unless the real estate so given or advanced shall not be equal in value to the respective shares of the other issue in the same degree of affinity, as the case may be; and then no more than will be sufficient to make such share equal in the above proportion.”

The consideration in the deed is expressed in these words: “jNow this indenture witnesseth, that the said James Thatcher, for and in consideration of the natural love and affection he hath and beareth to his said daughter Susanna M’Ginnis, and for the better support of his said daughter Susanna M’Ginnis, for and during her natural life, &c.,” hath given, granted, aliened, &c., unto the said Susanna M’Ginnis, for her support during her natural life, and after her decease to the heirs of her body, and to their heirs and assigns forever, &c. To have and hold, &c., during her natural life, and, after her decease, unto the heirs [f] of her body, and to their heirs and assigns, to the ' only proper use of the said Susanna' M’Ginnis during her natural life, and to the heirs of her body, and their heirs and assigns forever hereafter. There is also a covenant for quiet enjoyment in the same manner.

The question for our determination is, is this land thus conveyed to Susanna M’Ginnis by her father in his lifetime, an advancement to her of any part of his real estate, or rather evidence thereof fit to go to a jury, or is it not ? •

[215] I will not now give an opinion (because under the view I have of the subject, it is not necessary) whether an advancement of a mere life estate in land, by a father in his lifetime, to a child, is such an advancement as will bring it within the proviso of the act, or not. But I am of opinion that an estate in fee tail is; and, also, that the deed unider consideration created in Susanna M’Ginnis a fee tail estate in the lands comprehended in it. The general rule of law as to this is, that when the ancestor by any gift, devise or conveyance, takes an estate for life, with remainder mediately or immediately to his heirs, in fee or in tail, the word heirs is a word of limitation, and not of pinchase, .and the estate of inheritance shall vest in the ancestor, and the express limitation for life is of no effect. That is, that such remainder vests in the ancestor himself, and the heir (when he takes) shall take by descent from him, and not as a purchaser. It is not material what gave rise.to this rule— whether it sprung from feudal policy, was contrived for the benefit of creditors, or invented to prevent the estate from being in abeyance; still it is a rule of law so firmly established, that I think nothing short of a legislative act can shake it. I have looked into the books, and cannot find a case from Shelly’s, adjudged the 23 Eliz. 1 Coke Rep. 104, down to the present time, but that a .conveyance, worded like the one under consideration, hath been adjudged to be an estate tail. The deed from Thatcher to Mrs. M’Ginnis is to her during her natural life; and then to whom? [*] Why, unto the heirs of her body; that is, to the whole succession of heirs descending from her body. The words heirs of her body, are nomen eolleetivum, and include all her heirs descending from her, and ex vi termini, take in the whole generation. The word heirs is stronger than the word issue. The subsequent words, and to their heirs and assigns, are either merged in the preceding words, limiting the estate, to the heirs of her body, or are too uncertain to control them. There are cases of devises, where the testator hath superadded fresh limitations, and grafted other words of inheritance upon the heir to whom he gives the estate; whereby it evidently appeared, that these heirs were meant by the testator, to be the root of a new inheritance, and not considered as branches derived from their own ancestor. But I do not consider the present case as coming within any of them. Archer's case, 1 Coke, 66, is of this kind. Francis Archer devised fee simple lands, to Robert Archer for life, and afterwards to the next heir male of Robert, and the heirs males of the body of such next heir male. It was here evidently the intention of the testator, to make the next heir male of Robert the stock, or root of [216] a new inheritance, and not Robert himself. In this case it was adjudged, that Robert had but an estate for life; and the reason given by the judges for this opinion was, because the remainder is limited to the next heir male of Robert in the singular number.” It was almost the same as saying, the eldest son of Robert; it was, in fact, a description of the person who was to take on the death of Robert, and not in general terms given to a line or succession of heirs, as in the present case; it is evident that Mr. Thatcher intended his daughter Susanna, the stock or root of inheritance from whence the estate was to descend.

The case of Lisle v. Pullin and others, 2 Strange, 729, is stronger than this. Nicholas Lisle devised a messuage and tenement, to his kinsman, Nicholas Lisle, for and during his natural life, and after his decease, [*] wnto the heirs males of the body of the said Nicholas, lawfully to be begotten, and Ms heirs forever; and in case he died without such heir male, he gave it over to another kinsman. This was adjudged by all the court to be an estate tail. Raymond, Chief Justice said, that the word heirs was always a word of limitation; that the word heir and heir male include all the heirs of the devisee; that in Archer’s case, it was the word next, which confined it to one particular person; for without that word, it would have been a limitation, and not a purchase. POBTESQTJE, J., said the word hems is certainly a word of limitation, unless their be other words next eldest. &c., and that without such words added to it, it can never be a word of purchase. That in Archer’s case, the particular person was pointed out by the word next; and in Wild’s case, there is the word children, which could not be a word of limitation. In the famous case of Perrin and another v. Blake, the principle laid down in Shelley’s case was not denied; but it was attempted to show, that in case a testator manifestly intended, from the whole of the will taken together, that the heir of the body should take as a purchaser, and not by descent, that the court should so adjudge; and it was contended, that such intent manifestly appeared, from the will which created the estate in controversy. It is to be recollected that the case under consideration grows out of a deed, and not a will. And also, that no such intent can be drawn from the words of the instrument.

If then, I am correct in this construction, the only question for consideration yet remaining is, how far an estate tail is to be considered as an advancement of a child, under the proviso of the first section of the act, altering the law directing the descent of real estates. [217] The proviso speaks only of the ancestor, giving or advancing any part of his real estate; nothing is said about a fee simple, nor a fee tail, but only a real estate. In this case, the ancestor gives to his daughter twenty-seven acres of land, which exceeded in value what would [*] fall to her share under the act, constituted her the stock of an inheritance, and limitingAhe estate to the heirs of her body generally, assigning as the consideration moving him to it, the natural love and affection he hath and beareth to his daughter, and for the better support of his said daughter, for and during her natural life. This certainly appears to me, an advancement of his daughter of a real estate, and considering that she was a married woman, it was not injudiciously disposed of, to benefit herself and her posterity.

The English practice of putting the land advanced by a man in frank-marriage into hotch-pot, as it is called, bears a strong resemblance to this provision of our statute; and so far as it respects the question of advancement, affords some light; the estate of frank-marriage is an estate of inheritance in the special tail. 1 Institute, 21. Littleton, in section 269, saith, “ When a man giveth lands or tenements in frank-marriage, with his daughter or with his other cousin, it is intended by the law that such gift made by this word frank-marriage, is an advancement and for advancement of his daughter or of his cousin.” And in the same section he further saith — “And for this cause the law is that she shall have nothing of the other lands or tenements descended to the other parcener, &c., unless she will put the lands given in frank-marriage in hotch-pot, as is said; and if she will not put the lands given in frank-marriage in hotch-pot, then she shall have nothing of the remnant, because it shall be intended by the law, that she is sufficiently advanced, to which advancement she agreeth and holds herself content.” This idea of Littleton, of an advancement of a father to his daughter of an estate tail, appears to me, conclusive on this head.

I am, for the foregoing reasons, of opinion, that the land conveyed to Susanna M’Ginnis, by her father James Thatcher, by the deed offered in evidence on the trial of this cause, was art advancement to her in the lifetime of her father, of part of his real estate; and [*] therefore, ought to have been received in evidence, and not overruled. That the verdict ought to be set aside, and a new trial had, in order to let in the evidence rejected and overruled.

Kirkpatrick, C. J.

— This being the opinion of the eourt, let the verdict be set aside, and a new trial had.

Cited is Den, Johnson v. Morris, 3 Halst. 213; Den, Richman v. Baldwin, 1 Zab. 395; Kennedy v. Kennedy, 5 Dutch. 185.

Approved is Zabriskie v. Wood, 8 C. E. Gr. 552.  