
    Loving and Others vs. Hunter.
    
    When a bequest in a will is not clothed in language, having a particular technical meaning affixed thereto, so as to control the intention in its construction, the intention shall prevail.
    When the words in a will were, “the remaining two thirds of my estate I lend unto my three daughters, S. L., M. B., and J. S., to them during their natural lives, and then given to the lawfully begotten heirs of their bodies:” Held, ‘'that the words lawfully begotten heirs of their bodies” meant children; and that the bequest did not vest the absolute estate in the first takers, but an estate for life only, with a remainder over to their children, which was not top remote; the word, “then,” fixing the time of the remainders vesting to the death of the first takers.
    Words used in a bequest of personalty, which, when applied to realty, would create an estate tail, vest the absolute interest in the personal estate in the first faker.
    
    When a testator in his will directs that his land should be sold, and the proceeds invested in negroes, which, when purchased, are loaned to A for life, and then given to B: Held, that though the negroes did not belong to the testator at his death, this is a sufficient declaration of the limitation of the slaves, by will under the act of 1801, ch. 25, against a bona fide purchaser for value.
    A will made in Virginia, and duly proved and registered theie, declaring the loan and limitation of propertythereinmentioned, which property was then in Virginia, is sufficient, against purchasers, without registration here under the act of 1801, ch. 25, though the property may have been removed to this State by the loanee, and possession held for five years.
    In 1809, Thomas Norvell, who resided in Goochland County, Virginia, made and published his last will and testament; and dying, said will was duly proved and recorded, according to the laws of Virginia, in the said county of Goochland. By his said will, the testator loaned to his wife one third of his estate, during her life; after which, the - will provides, in the second clause, as iollows: “It is my wish and desire that the land be sold . , , . , . . lor the best price that can be got, and the money, arising therefrom, to bo laid out in young negroes, at the discre-lion of my executors; to be equally divided among my three daughters, in like manner as will hereafter be named. Thirdly, The remaining two-tliirds of my estate I lend unto my three daughters, Sally Loving, Martha Bernard, and Jincy Sgdler, to them, during their natural lives, and then given to the lawfully begotten heirs of their bodies; further, the said two-tliirds of my estate to be equally divided among my three daughters, as above named; and the one-third of my estate, that is lent unto my wife Judith, I desire may be equally divided, after her decease, among my three daughters, to them lent, during their lives, and then given to the lawfully begotten heirs of their bodies for ever.”
    The executor sold the land and purchased negroes, as directed in the will, and distributed them among the three daughters. Among the negroes so purchased and distributed was a girl Mary, who was delivered by the executor to Sally Loving. Gabriel Loving, the husband of said Sally, moved to Tennessee in 1811, with his family, and brought the said slave Mary with him, where they have continued to reside ever since.
    In 1818, Gabriel Loving executed a bill of sale for said slave Mary, to John Roach, — his wife Sally, and their eldest son Thomas N. Loving, joining in its execution; and in 1823, Roach sold the slave to the defendant Thomas Hunter. All the slaves in controversy consist of said Mary and her issue.
    Sally Loving has died, and the complainants, her children, bring this bill to recover the said slaves, and for an account of hire, &c. The chancellor dismissed the bill and complainants appealed to this court.
    
      
      F. B. Fogg, for complainant.
    The statute of frauds of Virginia, can have no application to this cause, for the property never remained in Virginia, five years after it was delivered to the father and mother of the complainants. In 1811, Loving, in right of his wife, received the slaves from the executor of her father in Virginia, and during the same year he removed to the State of Tennessee, where he has ever since resided. The law of Virginia regulates the rights of property, and prescribes a rule of evidence for her own citizens, or those residing within her limits; it cannot operate extra territorially. Had the property remained in Virginia for five years after its delivery, in the possession of the father, without any limitation declared by will or deed, in that case it would be conceded, that the rights of creditors and purchasers being vested in Virginia, that as to them, the slave belonged to Loving by her laws, and would belong to him every where, notwithstanding his change of residence. See Guy vs. Shelby, 11th Wheaton, and cases there cited. The law is a statute of limitations, giving a positive rule of evidence fixing the rights of property after the expiration of five years. It certainly refers to a possession of five years in Virginia, and regulates the rights of property, in that State only.
    2. Suppose that the laws of Virginia regulate .the right to this property, then we contend that those laws were complied with, and that the limitation or reservation of the remainder in this slave, was, by will duly recorded according to those laws. The will gave a power to sell real and personal estate, and directed executors to purchase negroes with the proceeds, and deliver the negroes to his children, during their lives, with remainder to his grandchildren. The trust created by the will was executed, this negro purchased, and delivered to Loving, the husband of one of the children. Under what title did Loving claim — was it not by virtue of the will, and held in accordance with its provisions, and was not the remainder , , ■ . . , , , ,, T . created by a will m writing, duly recorded! It is true, that the identical negro delivered, was not specified in the will, because it was not the property of the testator, at the time of his death, but was purchased agreeably to his directions, and the question of identhy must be always a question of fact and parol proof. The law intended to prescribe what should be legal notice, not notice in fact, to exclude the possibility of frauds, by requiring the party to show, by written and recorded evidence, the origin of his title. What notice to prevent frauds on purchasers, of the increase of a negro woman slave, would be given by a deed or will recorded in Blountsville, when the property was removed to Memphis or Nashville? None whatever, the question of identity must depend upon parol testimony, but the production of the deed or will would exclude the idea of fraud. The intention of the law was to prevent pretended loans, pretended reservations or limitations, and not to destroy entirely the rule of caveat emptor. The reservation or limitation of the use or property in this case, is declared by will duly proved and recorded, although the identical negro purchased by the executors must be proved by parol. The statutes to prevent frauds in gifts, or loans, or sales of slaves, always contemplate and provide against the frauds of donor or donee, vendor or vendee, and borrower or lender. They do not extend to fiduciary possessions, where the original gift is evidenced by a recorded title, and where there is no person authorized to bring suit, “or assert in any way whatever an adversary claim.
    3. The assent of an executor by the delivery of the property bequeathed to the tenant for life, is an assent to the remainder man. The possession of the one is not adversary to, or inconsistent with, the title of the other. In 1812, this negro was delivered, in the State of Virginia, by the executor, to the husband of the tenant for life, in accordance with the provisions of the will. The property was vested by the laws of the State of Virginia. N0 law existed in Tennessee, authorizing a will made in another state to be recorded here, until 1823; and there was no mode providing the manner in which it could be done, and no law authorizing the registration of deeds of gift, marriage settlements, &c. made in other states and registered there, of property there and subsequently removed to this state, until the act of 1831. The defects existing in our former system of jurisprudence are now remedied, but these laws apply not to the present case. The act of 1801 cannot apply to any other wills or deeds than those made in Tennessee, for property in this State, because a foreign will could not be recorded, and deeds could not be foreign deeds, because they were to be registered in the register’s office of the county, where the said goods and chattels, or the most valuable part of them are, within eight months after the execution of the deed; thus clearly showing that the legislature intended to make a provision only for property which was within our own limits, at the time of the execution of the deed. The doctrine is well settled, that no legislature of a State, will ever pretend to regulate the rights of persons or things beyond the limits of its territory, unless the words of the statute are explicit and clear to that effect. The rights to personal property are also to be regulated by the law of the domicil of the testator, and if the will is good and valid in Virginia, and vested the property there in the complainants, their title is good every where. The act of 1801 has no application, as we believe, to the present cause. See Crenshaw vs. Antony, Martin and Verger’s Reports, 110.
    Whether the remainder in Sadler’s will tothe heirs of the bodies of his daughters, are words of limitation or purchase depends upon intention. All other rules bend to the one rule that courts affect the intention of testators, when ascertained if such intention be consistent with the rules of law. 6 Pet. Rep. 68, Smith vs. Bell: 5 Yerg. Rep. Claiborne vs. Lewis.
    Although it be the general rule, that a limitation to the heirs, or heirs of the body of tire person to whom a life estate is given, vests the same in the ancestor or the first-taker; yet there are many exceptions to this rule. One exception supported by many cases, is where, by any words superadded to the ordinary words of gift for life and limitation, the testator manifests the intention, that the life estate is not to be enlarged, or that the word heirs' is employed as descriptive of the persons which he intends to be the objects of his bounty; the remaindermen, then, take as purchasers, and not by descent from their ancestor, who held the life estate. 2 Atk. Hodgson vs-Bussy: 1 Co. R. Archer’s case: 6 Yerg. Rep. 96, Hickman vs. Elleston: 2 Ver. 195, Peacock vs. Spooner: 2 Do. 362: Fearne on Remainders, 149, 210.
    In this case “loan” is the word employed for the creation of the life estate. And although this is in effect equal to the word give, as regards the life estate, yet, when.the remainder is created, the word “give” is employed.
    
      William Thompson, for defendant.
    In the argument of the first question, presented for the consideration of the court, it will be proper to consider whether there is any peculiar phraseology in this will, that differs the case under consideration, from the ordinary one of a bequest to a person of a chattel during life, and to the lawfully begotten heirs of his or her body, after the termination of the life estate.
    The word loan is used by the testator, “I lend unto my three daughters, Sally Loving, &c. to them during their natural life, and then given to the lawfully begotten heirs of their bodies.” The word loan, quo ad hoc, is synonymous with the word gift, the effect is the same, it js an enjoyment for life. See Roper on Legacies, 2d ed. vol. 2, page 393. He says, “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 the freehold land's 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, *(i. e.) the first taker will have the absolute interest in the bequest; and the remainder or executory limitation to the heirs of his body, and the subsequent limitations, if any, depending upon a failure of them, will be of no effect. It will make no difference in regard to the construction, that the interest of profits only are given to the first taker, and the principal to his heirs.”
    All the cases on which these conclusions depend, are cited by Mr. Roper. See note Fearne on Remainders, page 462, top: also Fearne, p. 463: where he says, “So where long exchequer annuities for ninety-years, were given by will to trustees for the residue of the term, in trust for E for so many years of the said term, as she should live, afterwards to the plaintiffs for so many years of the said term, as they or the survivor of them should live, and after the decease of the survivor, in trust for the heirs of their bodies lawfully begotten, for all the residue of the said term, and for default of such issue, in trust for the defendant. Lord Chancellor King held, the remainder over to be void, and that the whole vested in the plaintiffs, to whom the limitation was for life, with remainder to the heirs of their bodies; and accordingly the annuities were decreed to be sold, and the money to be paid to die plaintiffs. In this case the devise was only in trust, and yet the rule was the same;” he cites Vin. vol. 8, page 451. On the same, page 463, he also says, “So where a testator-, by his will, devised that £400 should be put out on good security, for his son T, that he might have the interest of it for 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 the youngest son, .1. B. Lord Hardwicke decreed that the whole vested in the first taker, and the limitation over was too remote. ” He cites 1 Vesey, sen. 133, 154, Butterfield vs. Butter-field. See also Fearne, 464, top paging. Although we have taken the trouble to cite the foregoing authorities, yet we do not anticipate any reliance will be placed by the opposing counsel on the word “loan” or “lend,” used in the will, for in the numberless cases reported in the books, these words, we believe have been almost invariably considered by both the bar and the bench, as of the same import with the word “given.”
    “The remaining two-thirds of my estate,” says the testator, “I lend unto my three daughters, Sally Loving, &c. to them during their natural life, and then given to the lawful begotten heirs of their bodies.” Can the-words, “and then given” have any efficacy or force in determining the question, whether the words, “heirs of their bodies,” are words of limitation of the estate, or words of purchase? In 2 Atk. 311, Beaucleth vs. Dormer, the Lord Chancellor says, “The first question,” says he, “is, whether there is any particular circumstance in this case, that can confine the words to a dying without issue at the time of Miss Dormer’s death; the cases which have been cited are most properly applicable to this question. I am of opinion, that though there are some words which look this way, yet in point of law, they will not admit of this construction. The word, “then,” indeed, first occurred to me, but I do not recollect any case that has turned upon this merely; for then, in the grammatical sense, is an adverb of time, but in limitations of estates, and framing contingencies, it is a word of reference, and relates to the determination of the estate when the contingency arises.” In Biggs vs. Bensly, 2 Bro. Ch. R. 187, we find the same point decided. ' Also in Benyon vs. Maddison, 2 Bro. Ch. R, 75, 77. I would refer the court on this point, particularly to the case of Davidson and others vs. Davidson’s TT. - , , , executors, 1 Hawk’s Kep. 180, 181, 182, and to the authorities cited in the opinion of the chief justice, (Taylor.) And also to the opinion of the court, in the case of Royall vs. Epps, 2 Mun. Rep. 490; hy all which it will appear beyond controversy, that no efficacy can be given to the words “then given,” used in the will of old Mr. Norvell, in determining whether this be a case of limitation or purchase. What then is the construction, according to the established rules of law, to be given to the will of Mr. Norvell, loaning the property during life, and then giving it to the lawfully begotten heirs of their bodies?
    We consider the law in England, on this subject, to have been so long, so firmly and incontestably settled, that in a case like the present, the first taker has the absolute right and entire property; that we believe a plausible argument predicated upon a different assumption cannot be made. We do anticipate though, that the counsel for the appellants, yielding unreservedly, or yielding for argument sake, that the law is so settled in England, and perhaps in some of the American States, will still contend, that in Virginia, where this will was made, the rule is different.
    Before referring to the authorities, by which it is hoped to satisfy the court, that in a case like the present, the ■ rule of construction is not in Virginia different from that in England, ana that the established law, applicable to the case, is the same in both countries; we will refer the court to some authorities, showing that the rule in Shelley’s case is applicable to the present, and that it is the incon-trovertable law at the present day. The rule in Shelley’s case is, “That when the ancestor, by any gift or conveyance, taketh an estate of freehold, and in the same gift or conveyance the estate is limited, either mediately or immediately, to his heirs, in fee or in tail, the word, heirs, is a wordof limitation of the estate, and not word a of purchase,”
    
      Chancellor .Kent, in the fourth volume of his . / n t \ /» • i commentones, (2nd edit.) alter commencing at p. 214, and for several succeeding pages, reviewing-the various English decisions, concludes by saying that, “The rule in Shelley’s case, if applied to real property, enlarges the estate for life into an inheritance, and gives to the tenant for life the capacity of a tenant in fee, by which he can defeat the entail or strict settlement intended by tire party. If the rule be applied to personal property, it makes the tenant for life absolute owner, instead of being a mere usufructuary, without any power over the property be-yoncTthe enjoyment of it for life. ” And at p. 228, he says, “To conclude, the rule in Shelley’s case, survived all the rude assaults which it received in the controversy under Perrin vs. Blake; and it has continued down to the present time in full vigor, with commanding authority, and with its roots struck immoveably deep in the foundations of the English law.” “In the case of Perrin vs. Blake, the court of K. B. made the rule yield to the testator’s manifest intent,” says Chancellor Kent, “even where the limitation was of a legal and not of a trust estate.” 4 Bur. Rep. 25 79. In that case, the testator declared in his will, his intent and meaning to be, that none of his children should sell his estate for a longer period than their lives; and ‘to that intent,’ he devised a part of his estate to his son John, for and during the term of his natural life, remainder over, during his life, remainder, to the heirs of the body of John, with remainder over. A majority of the court decided, that the intent was to prevail, and that his son John took only a life estate. On error to the exchequer chamber, the judgment of the K. B. was reversed, by a large majority of the judges; on a writ of error to the House of Lords, the case was conpromised. “The result of that famous controversy,” says Kent, 4 Com. 222, “tended to confirm, by the weight of judicial authority at Westminster hall, the irre» sistable pre-eminence of the rule, so that even the testa» tor,s man^est intent, could not control tlie legal operation of the word “heirs,” when standing for the ordinary line of succession as a word of limitation, and render it a word of purchase.” I would ask the court, in the examination of this case, to turn their attention to Fearne on Remainders, and in the index, under the head “rule in Shelley’s case,” they will find arranged the innumerable cases to which it applies, and they will also see how effectually the decision of the K. B., in. Perrin vs. Blake, has been overruled. I would ask their particular attention to Fearne, 165 to 172, (third American edit.) in which I humbly conceive it will be seen that Mr. Fearne, in his observations upon the case of Perrin vs. Blake, has displayed much wisdom and judgment, and shown most satisfactorily that the rule, attempted in that case to be established is not sanctioned either by authority or policy. Tn commenting on the innovation attempted by the K. B. in the case of Perrin vs. Blake, upon the rule established by Shelley’s case. At p. 169, Mr. Fearne says, “If rules and maxims of law were to ebb and flow with the taste of the judge, or to assume that shape, which in his fancy best becomes the times; if the decision of one case were not to be ruled by, or depend at all upon former determinations in other causes of a like nature; I should be glad to know, what person would venture to purchase an estate without first having the judgment of a court of justice, respecting the identical title under which he means to purchase? No reliance could be had upon precedents; former resolutions upon titles of the same kind could afford him no assurance at all.” Page 170, “Construction depending on, and guided by certain fixed known rules, will not be liable to those various temporary influences, which must necessarily have a share in directing the discretionary decision of airy court upon earth; no inducement can arise, no room can be left to dispute or litigate titles built upon such a stable foundation. Whereas the implied intention of a testator is at best uncertain, frequently very doubtful; favor, affection, caprice, nay different liabits of thinking, and modes of expression in different men, will occasion different constructions of the same will. Very often, I venture to say, a testator himself would be at a loss to fix or expound his own intention, when the reason, humanity, or ingenuity of a judge, might conceive it clear as day-light.” He says p. 171, “Is there any thing impolitic, any thing harsh in deciding, that tire intention of the testator should never be indulged, so far- as to control all established rules of construction.
    Whenever the construction, upon the apparent intent of the testator, is not contrary to tire construction upon certain established legal maxims, respecting the import of terms made use of by him; so far let the apparent intent be the guide in the construction, but not one jot further. And wherever the terms of art made use of, do not fall within the allowed extent of any established legal maxim, respecting their import and operation, there, let the intent be the sole guide of construction; because then a more certain and better rule of construction is not sacrificed to it. These are distinctions which have long since prevailed in our courts of justice, and which appear to be founded in good reason and permanent useful policy. Surely, it is better that the intentions of twenty testators, every week, should fail of effect, than those rules be departed from, upon which the general security of titles and quiet enjoyment of property so essentially depend. Where, in the name of wonder, can be the inconvenience; where the policy, of directing our attention and solicitude, to substantiate the conjectural intentions of the dead, at the expense of so much perplexity, strife, litigation, and distress to the living?”
    Chancellor Kent, 4 Com. third American edit, page 226, says, “Mr. Hargrave, in his observations on the rule, is for giving it a most absolute and peremptory obligation. He considered that the rule was beyond the control of intention, when a fit case for its application existed. It was a conclusion of law of irresisible eifi-cacy, when the testator did not use the word heirs, or heirs 0f the body, in a special or restrictive sense, for any particular person or persons, who should be the heir of the tenant for life at his death, and, in that instance, inaptly denominated heir, and when he did not intend to break in upon, and disturb the line of descent from the ancestor, but used the words heirs as a nomen collecti-vum, for the whole line of inheritable blood. It is not, nor ought it to be, in the power of a grantor or testator, to prescribe a different qualification to heirs from what the law prescribes, when they are to take in their character of heirs; and the rule in its wisdom and policy did not intend to leave it to parties to decide what should be a descent, and what should be a purchase. The rule is absolute, (and this was the doctrine of Lord Thurlow, in Jones vs. Morgan, 1 Bro. 206,) that whoever' takes in the character of heir, must take in the quality of heir.
    All the efforts of the party to change the qualification, while he admits the character of heirs, by saying, that they should take as purchasers, or otherwise, are fruitless and of no avail.
    The same limitation, under the English law, which would create an estate tail, if applied to real estates in land, would vest the whole interest absolutely in the first taker, if applied to chattels. Attorney General vs. Bay-ley, 2 Brown, 553: Knight vs. Ellis, Do. 570: Lord Chatham vs. Tothill, 6 Brown’s P. C. 450: Britton vs. Twining, 3 Merivale, 176: 3 Saunders, 388, n. 3.
    “A man is not to be permitted,” says Kent, 4 Com. 228, third American edit, “by will to counteract the rules of law, and change the nature of property; and, therefore, he cannot create a perpetuity, or put the freehold in abeyance, or make a chattel descendable to heirs, or destroy the power of alienation by a tenant in fee or in tail. In Doe vs. Smith, 7 Term Rep. 531, Lord Kenyon took a distinction between a general, and a secondary intention m a will, and lie held that the latter must , . . ’ , T- . r . give way when they interfered, it, therefore, the testator intended that the first taker should take only an estate for life, and that Ms issue should take as purchasers, yet, if he intended that the estate should descend in the line of hereditary succession, the general intent prevails, and the word issue is a word of limitation. ” I would ask the attention of the court to Fearne on Remainders, pages 490, 491, 492, 493, 494, 495. Having discussed the doctrine in respect to limitations of real estates at page 490, he says, “But in the limitation of personal estates, a similar rule does not always hold. If a term be devised to one for life, and afterwards to the heirs of his body, these words áre generally words of limitation, and the whole vests in the first taker, as is evident from several of the cases before cited. So where a term was limited in trust, for S, during her life, and immediately from and after her decease, to the heirs of the body of S, lawfully to be begotten, if the term should so long.endure, and in default of such issue, then to B. Lord Hardwicke expressed himself of opinion, that the whole term vested in S. And again, where real and personal estate was devised to trustees, in trust to pay the profits to G, during his life, and afterwards to pay the same to the heirs of his body. Lord Hardwicke held, that the personal estate vested absolutely in G, by this limitation.*’ p. 491, &c. &c. See Fearne, page 481, 462 to 466. At 462 he says, “That the limitation of a personal estate to one in tail, vests the whole in him, is proved by many cases;” see the cases by him cited, and the authorities referred to. “Thus, where one devised, that all his money in the government funds should be laid out in the purchase of- lands, and settled on his eldest son A, and the heirs male of his body; remainder to the second son C, and the heirs male of his body; and bequeathed the rest of his personal estate to A, and the heirs male of his body, remainder over in the same manner held by the Lord Chancellor that the personal estate, (viz. the residue after what was to be laid out in the purchase of lands,) could not be entailed. So where a testator by his will dev-ised that £400 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 his youngest son, J. B-Lord Hardwicke decreed, that the whole vested in the first taker, and the limitation over was too remote.” And see in the author’s observations immediately following,, many similar cases cited.
    Chancellor Kent, in the 4th vol. Com. p. 221, says',, “The rule in Shelley’s case has been received and adopted in these United States, as part of the system of common law. In South Carolina, the rule was early acknowledged; Dott vs. Cunnington, 1 Bay, 453; and recently after a long controversy and conflicting decisions,, the court of appeals, upon great consideration, decided a case upon the basis of the authority of the rule in Shelley’s case. Carr vs. Porter, 1 M’Cord’s Ch. Rep. 60. The rule was also fully admitted as a binding authority, in Virginia, in the case- of Roy vs. Garnett, 2 Wash. Rep. 9; though it was allowed to be under the control of the testator’s intention; and in Maryland, it has received the clearest elucidation and the most unqualified support. In Horne vs. Lyeth, 4 Harr. & John’s Rep. 431, the rule, under all its modifications and exceptions, was learnedly and accurately expounded. In that case, a devise of a term for ninety-nine years to A, during her natural life, and after her death to her heirs, was held to pass to A the entire interest in the term. It was admitted by Ch. J. Dorsey, that if it had been a devise of an estate of inheritance, the remainder would have been immediately executed in the ancestor, and he would have been seized of an estate in fee.
    The word heirs, when used alone, without explanation, is always a word of limitation and not of purchase, and no presumed intention will control its legal operation. n i , pi** * f i i. ihven superadded words oi limitation, engratted on the first limitation, would not alter the rule, unless they went to alter, abridge, or qualify the words, and to establish a new succession, inconsistent with the descent pointed out by the words, so as to make the next heir the terminus, or stock, by reference to whom the future succession was to be regulated. To change the word into a term of purchase, the heirs must not be able to take as heirs, by reason of a distributive direction, incompatible with the ordinary course of descent, or the limitation must be directed to the then presumptive heirs of the person, on whom the estate for life is limited. This very correct view of the rule of law, admitted the acknowledged exceptions to the rule in the case of limitations in marriage articles, and of executory trusts, and also where the ancestor takes a trust or equitable estate, and the heir the legal estate, or an executed use; and assuming the rule to have been introduced on feudal principles, yet to disregard rules of interpretation, sanctioned by a succession of ages, and by the decisions of the most enlightened judges, under pretence that the reason of the rule no longer exists, or that the rule itself is unreasonable, would not only prostrate the great landmarks of property, but would introduce a latitude of construction boundless in its range, and pernicious in its consequences.”
    It will be noticed, that many of the cases we have extracted from, as well as others cited, are cases originating between the executory devisee, on a limitation upon a failure of heirs or issue, and the tenant for life; which are stronger authorities for sustaining the position we take, than cases between the ancestor, or those claiming under him and thejheirs, (which is the case under consideration.) The reason of the superior obligation of these authorities, will be shown, when we come to examine the Virginia authorities.
    
      But it may be argued by the opposing counsel, tha? conceding the law in England to be, as we have contended, the decisions of the supreme court in Virginia have made an innovation on the rule in Shelley’s case in relation to slaves. It is true, as stated by Kent, that in the case of Roy vs. Garnett (2 Washington 9), the court says the will of the testator is to govern, which is all the application that case has to the present; and this is saying no great deal by way of innovating on the rule in Shelley’s case; for in the case of Perrin vs. Blake, Justice Blackstone, in the Exchequer, said the same thing, and yet he decided in favor of the first taker, notwithstanding the testator declared his intent and meaning to be, that none of his children should sell the estate for a_ longer time than his life. He decided, that the particulaar intent confining the devise to the life of the first taker, must yield to the general intent, that the heirs should take by descent, and not by purchase.
    It is contended, that in no case situated like the present, where the question is raised between the first taker, and his or her heirs, have the Virginia courts decided it to be a purchase, and not a limitation. It is only in cases between the executory devisee, on a limitation upon failure of heirs or issue, and the first taker, that they have decided the first taker took a life interest only, and that the executory devise was not too remote; or, as in a case like Higginbotham vs. Rucker (2 Call 313), where the gift was “to the daughter of the plaintiff, and the heirs of her body; and in case she died without issue, that is, children of her body, the said slaves to return to the grantor.” That I am correct in this distinction, see 2 Call 316; Dunn vs. Bray, 1 Call 344; Timberlake vs. Graves, 6 Munford; Gresham vs. Gresham, 6 Munford; Royall vs. Epps, 2 Munford 491; Didlake vs-. Hooper, 1 vol. Virginia Reports, page 195. See, also, as bearing on the point, 5 Yerger 368; 1 Hawk’s Reports 163. Now we argue, that in the cases cited in the Virginia Reports, it is the executory devise, upon a failure of heirs or issue, which ascertains the will of the testator, that the first taker shall only take for life, and the “heirs” as purchasers. The executory devise is the pivot upon which the construction turns; as, for instance, if a bequest is to A and the heirs of his body (by a will made in Virginia); and if he die without lawful issue, then to B, if the limitation to B is good, by way of executory devise, is it not because’ the executory devise gives the clue to the testator’s meaning? That he did not mean an indefinite failure of issue — which would be a void limitation, and vest the absolute estate in the first taker — for says Preston (in his Abstracts of Titles, vol. 2, page 152, margin), “As a consequence of the rule against perpetu-ities, every gift by executory devise, must be so limited as to vest, or fail of effect, within a life or lives in being, and twenty-one years, and the period of gestation. Then follows this result: Every gift by will, which cannot on the one hand have effect, except under the learning of executory devises; and on the other hand, is so limited, that it must wait for effect, as a vested interest, until the indefinite failure of issue of any person, is too remote, and for that reason void, though it be limited after, and expectant on, a prior gift to another, and the heirs general or special of his body.” Which authority tends to sustain the opinion advanced, that the Virginia cases being those of contests between the executory devisee, on a limitation upon a failure of heirs or issue, and the first ta-taker; the courts there, rely upon the fact of said execu-tory devise in the will, as evidencing the intention of the testator, when speaking of dying without issue, to confine it to the lifetime of the executory devisee, or the usual limitation after, and not to an indefinite failure of issue. Whereas, if the devise had been simply to one and the lawful heir of their body, as in the present case, they would not have hesitated to have decided, that the first taker took the absolute estate. Executory devises, limited upon a failure of heirs or issue, are favored in courts of equity. Mr. Fearne, on remainders, page 470, says: “Indeed, with respect to executory devises of terms for years, and other personal estates, the court of chancery has very much inclined to lay hold of any words in the will, to tie up the generality of the expression of dying without issue, and confine it to dying without issue living at the time of the person’s decease.” See his illustrations, page 475.
    Without troubling the court further on this point, I would simply ask, when the English law is so firmly settled; when it is so consonant with policy, that perpetuities should not be encouraged; that property should not be locked up; that the right should not be severed from the possession; whether they would be willing to go further in relaxing the rule in Shelley’s case, than the Virginia courts have gone?
    Upon the remaining point, the statute of frauds and perjuries, the will gives no notice of the property in which the reservation is claimed by complainants. See 1 Mun-ford’s Reports 303; 2 Eden’s Reports 347. If the reservation, &c., is not recorded, it is void, under our act of 1801. See 1 Haywood and Cobbs 129; which is a literal copy of the Virginia statute.
    That the case is directly embraced by the statute of frauds and perjuries, of both Virginia and Tennessee. See 2 Munford’s Reports 545; 3 Yerger 39, Hartsfield and others vs. Andrews; Do. 62, Walker vs. Winn; Martin and Yerger 385; 4 Bibb 170, 337; 1 Marshall 7; 1 Littell 229; 2 Do. 78. It is immaterial whether the purchaser had notice or not, though Hunter is manifestly an innocent purchaser.
    
      Ewing on the same side.
    The question in this case, first to be decided, is, what estate did Mrs. Loving take under the second clause of old Mr. Norvell’s will. We contend, that she took an estate in fee. 1, Upon the ground that the limition m the third clause does not comprehend the property passed by the second clause. And, secondly, upon the ground that the third clause passes the fee. What estate did Mrs. Loving take under the third clause? The words are precisely such as, under the rule in Shelley’s case, so often acted on and so well settled, would carry an estate tail in real property, and the whole interest in personal property. Gentlemen say they do not question the rule in Shelley’s case; but they rely upon the rule that the intention of the testator is to prevail, unless it be contrary to some known rule of law. The general rule, that “a dying without issue,” means an indefinite failure of issue, unless there be some restrictive words, is settled beyond all question. Wilkes vs. Lion, 2 Cowen; Bells vs. Gillespie, 5 Ran. Rep.; Broaddus vs. Turner, 5 Ran.; Anderson vs. Jackson, 16 John. What are the restrictive words in this case, relied upon to exempt it from the general rule? 1. That the estate is given expressly for life; but these words, in themselves, have no such effect. 2 Th. Co. 764; Fearne 463, and cases there cited; Barlow vs. Salter, 17 Ves. That the limitation is of personal property, is a circumstance which cannot vary the construction. Although this once was held to be the law, the distinction now seems to be exploded. Chandless vs. Price, 3 Ves. Fearne 464, 490; Eldridge vs. Fisher, 1 H. & M. 559; 4 Kent 276, note, where the cases are summed up and commented on. The word “there,” is likewise ineffectual. Fearne 491; 2 Ves. jr. 233; Broaddus vs. Turner, 5 Ran. The word “loan” is cisely equivalent to the word “gift.”
    When, as the law originally stood, it was held, that only the use of a chattel could be transferred for life -with a limitation, there was some reason for a distinction between them; but since it is held that the thing itself may be given for life, there is none. The case in 5 Yerger, of Claiborne vs. Lewis, is too unlike this in its terms, to S*ve 311^ lu*e ^or a decision herei and upon a comparison of it with Chan. Kent’s opinion, in the case referred to 16 Johnson, it will be found at variance with the English cases. It will, therefore, be followed only in cases precisely similar. In this case, from tire words used, there is no ulterior limitation; no provision for the event of her dying without heirs of her body, lawfully begotten. So much of an estate as is not disposed of, remains in the donor or his heirs. Fearne 42; Pybus vs. Milford, 1 Vern. 372. Here there is a reversion in the heirs of this testator, which is only to be called into existence by an indefinite failure of the issue of the first taker. A'construction which goes directly to establish a perpetuity. See 5 Ran. 277. The distinction between this case and Hickman vs. Q.uin (6 Yerger) is this, that in that case the estate is given over after her death to the lawful heirs of her body, if she have any; if not, to be equally divided, &c. Here there is no limitation over on such an event, and the reversion is left to arise on an indefinite failure of issue. The modem cases, in 14 John, in 5 Randolph, and 2 Cowen, exhaust this whole subject; and I beg leave to refer the court to them, as comprehending the whole doctrine. One remark on the New York cases. They seem to admit that Fosdick vs. Cornell, 1 Johns. Rep. was wrongly decided; but they bow to its au~ thority. The learning of the case, in 2 Cowen, may point us to the correct result, although it differs from the cases in Randolph.
    Next, as to the question of registration; and I regard this as still an open question in this state. It is said the statute of Virginia cannot operate extra-territorially. This is conceded. So long as the owners of the property remained in Virginia, they and the property were governed by the laws of that state. Personal property is governed by the lex domicilii of its owner, in some respects; in others, by the law of the place where it is situated. When Loving removed to this state with his property, it became subject to the laws of this state. His property tras protected by the law here; and what the law protects, it has the right to regulate. Story, Con. Laws 821, also, 312. By removing to this state they submitted to its laws; Slid if they failed to comply with them, the Ibss be on their heads. Upon this principle, the Kentucky courts shade their decisions upon this self same Virginia Stáíüte. Í Mars. 7; 4 Bibb 470. Those decisions may be sustained upon another principle. The act of 180Í is not only to act to suppress frauds, but for the limitation of actions. All statutes of limitations, in their most extended sense, are made to suppress frauds. Thé statute of limitation bf the state in which suit is brought, always governs thé faté of the action. Story 482, 490. And this is the cáse, not only where the statute controls the remedy, but where the title becomes final by lapse of time. Béckford vs. Wade, 17 Yes. 88. This view of the case assumes, that the statute was complied with in Virginia. I will now proceed to show the statute was not complied with there. The land descended. The negroes were Hot pm-chased. Suppose the land had not been sold; the legatees might have had it sold, and taken the money. The executor hada mere naked power; the trust was an execu-tory one, and when executed, he should have declared it according to the statute.
    This part of the case may be sustained, for the appellee, in another point of view. By the will of Norvell, a trust is reposed iñ the executor to sell the land and purchase the slaves. To whom did these slaves belong when purchased? The legal title was clearly in the executor. The legatees might pursue the property in his hands, and enforce the trust; but théy could not pursue it into the hands of a purchaser in good faith, and for valuable consideration. I Mad. Ch. Pr. 456; 2 Mad. 147. It was the duty of the trustee to keep the property out of the hands of the purchasers; and if he failed to do it, he is liable. Legatees are merely volunteers. They are postponed to creditors of the testator; and where the ie-gacy is not specific, to purchasers from the executor. Purchasers for valuable consideration, even with notice of a voluntary conveyance, are preferred to those claiming under such conveyance. Buckle vs. Mitchell, 18 Yes.; Pulowtoff vs. Pulowtoff, lb. The statute of Virginia could not operate beyond its limits; it afforded no protection in Tennessee. Here this principle has room to operate and protect the purchaser. When the executor placed it in the power of Loving to. commit this fraud, he became responsible himself to the legatees; the purchaser is protected; the remedy of the legatees is against the executor for breach of faith. They cannot pursue the property into the hands of an innocent purchaser for valuable consideration.
    
      JVIr. Clayton,, for the defendants,
    followed Mr. Ewing and Mr. Thompson, urging the positions assumed by them at length.
    
      Win. E. Jlnderson replied,
    and discussed very fully the different points assumed by the counsel of defendants..
    
      
       Catron, Ch. J., did not sit in this cause.
    
    
      
       See Duncan and Wife vs. Hall, Martin and Others. 7 Yerger’s Report, 519.
    
   Green, J.

delivered the opinion of the court-

It is contended by the counsel for the defendant, that Mrs. Loving took an estate in fee to the property in controversy, by the provisions of the second clause of the-will. It is true, that clause of the will, after directing that the land should be sold, and that the proceeds of the sale be laid out in young negroes, further provides, that they he equally divided among his three daughters; but this bequest is to be understood in manner thereafter to be named. The manner here intended is particularly pointed out in the next clause. The assumption, that the property given in the second clause, is not comprehended in the limitation contained in the third clause, is evidently erroneous, as will appear by recurring to the provisions of the three first clauses. In the first clause, the testator loaned to his wife during life, one third part of his estate. The second clause provides for the sale of his land, and purchase of negroes, to be divided among his daughters; and the third clause commences by declaring that he loaned to his three daughters the remaining two-thirds of his estate. It must here be seen, that if one-third was loaned to his wife, by the first clause, and two-thirds were loaned to the daughters, by the third clause, the whole estate would be thus appropriated. Hence it follows, that the negroes, which are directed to be purchased in the second clause, constitute the two-thirds of the estate, which is loaned to the daughters, “during their natural life, and then given to the lawfully begotten heirs of their bodies.”

But it is insisted that Mrs. Loving took an estate in fee, because the words, “heirs of her body,” are words of limitation, and not of purchase, and that this is a case for the application of the rule in Shelley’s case. This rule, as defined by Preston, (Essay on Estates, vol. i. p. 263,) and which Chancellor Kent says, (4 Com. 215) seems full and accurate, as abridged and copied by him, is thus stated; “When a person taires air 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 another estate, of an interest of the same legal or equitable quality, to his heirs, or heirs of his body, as a class of persons to take in succession, from generation to generation, the limitation to the heirs entitles the ancestor to the whole estate.”

This rule originated in the policy of the feudal tenures, and was adopted to favor the lord, by subjecting the heir to the burdens incident to a descent, from which, as a purchaser, he would have been exempt. It is true, many other reasons have been stated by judges and elementary writers for the rule. These axe collected and examined by Mr. Hays, in his notes and illustrations, (Law Lib. No. 21, note D, p. 43,) where they are all obviated, and the writer concludes: “That the real inducement to the rule was, the prevention of fraud upon feudal tenure; for when the heir came in by succession or descent, and was under age, the lord of the fee was entitled to those grand fruits of rnilitary tenure, wardship and marriage; hut if the heir took by purchase, then only a trifling' acknowledgment for a relief was due to the lo.rd.” This opinion, as to the origin and reason of the rule, Chancellor Kent says, (4 Com. 216, 2d edit.) has been generally followed. To carry into effect this policy, it has been considered that the rule, is of such preremptory obligation, as to he beyond the control of intention, when a fit- case for its application existed. 4 Kent’s Com. 226. Memorable for its antiquity, and for the patient cultivation and discipline which it has received, still as it is a rule purely “arbitrary and technical,” and calculated to defeat the intention of those who are ignorant of technical language;’-’ and as it had its origin and reasons in a state of things at war with our institutions and policy, we cannot perceive that there are just grounds to join Chancellor Kent in his lament over the learning, which he says has been devoted to destruction, by the statute of New York, by which the operation of the rule has been abolished. On the contrary, when we take into view the intricacies and subtleties into which the numerous disquisitions on this subject have descended, involving it, as Chancellor Kent admits, in “involutions wild,” (Com. 226, 2d edit, note a,) and giving birth, as it has, to so much vexatious litigation, as to afford, according to Mr. Hays, (p. 93,) a strong prima facia argument for the abolition of the rule; rye would rather recommend it to the legislature of this State, to follow the example of that of New York.

Notwithstanding these observations are made, we do not say, that if a fit case for the application of the rule, were to arise, it would not be enforced; but the above •considerations are presented, in order to show that there is no reason to construe other words than those embraced in the rule, so as to make them of like meaning, and thereby, justify the application of the rule to them. As, therefore, the rule is purely technical, by which a particular meaning is affixed to certain words, insomuch as to control the intention; it will he left, in its application, to the particular case, and where other words are used, the intention should prevail.

In this will, what are the words ? The testator says, “The remaining two-thirds of my estate, I lend unto my three daughters, Sally Loving, Martha Bernard, and Jin-cy Sadler, to them, during their natural lives, and then given to the lawfully begotten heirs of their bodies.” The word “lend,” is here used, and not the word “give;” and although the former word confers the use for life, and may for some purposes he construed, to mean the same thing as though the latter word had been used; yet the use of the word “lend,” assists in determining what estate the testator intended his daughters should taire. By the use of the words “lend, during their natural "lives,” the intention of the testator is as certainly expressed, and as well understood, to confer on them only a life estate, as it could have been by the use of any form of superadded words. This is more especially manifest, by reference to the words which follow these. He says, after lending to the daughters for life, — “and then given to the lawfully begotten heirs of their bodies.” He uses here, the word “given,” in contradistinction to the word “lend,” the more conclusively to show, that his purpose was, that his grandchildren should take the absolute estate, the use of which, was bestowed on their mothers for life only. By the words, “heirs of their bodies,” therefore, we are to understand children. This being the plain sense of the bequest, we are not to seek to give the words an artificial and technical sense, in disregard of their natural meaning and common sense construction.

Although, therefore, it is true, that where words are used jn devises, which would, in real estate of inherit- . ’ , , , , . anee, give an estate tail; the same words, used m relation to personalty, would give an absolute interest, (See Duncan and wife vs. Martin, Hall and others, decided at this term, reported in 7 Yerg. Rep. 519,) yet, we are not of opinion, that such interest passed in the case before us, to Mrs. Loving; because the words are not such, as in a devise of lands, would have created in her an estate tail. Had it been a devise of real estate, the word lend, would have conferred on Mrs. Loving, only an equitable right to the use of the estate, during her natural life, and the legal title thereto, would have vested in her children, by force of the words, “given to the heirs of their bodies.” It would not, therefore, have fallen within the rule in Shelley’s case, for to do so, the estate which is taken by the ancestor, and that which is limited to the heirs, must be of the same legal or equitable character.

But there is another view in which this case may be considered, which still more clearly shows, that the rule, in Shelley’s case, has nothing to do with it. In the second clause of the will, tire testator directs his land to be sold, and the money arising therefrom to be laid out in young negroes, at the discretion of the executors. This clause contemplates the title to the negroes, to be vested in the executors. With this idea distinctly in the mind, the language of the third clause may be easily understood. In that clause, he says, he lends to his daughters the two-thirds of his estate, during their natural lives, “and then given to the lawfully begotten heirs of their bodies.” The idea conveyed clearly by this language is, that the executors, in whom is vested the title to the negroes, are so to provide, that the daughters of the testator are to enjoy the use of the property dining their natural lives, and then, at their death, the executors are to give the estate to those who may then he heirs of the bodies of his daughters. The same language is repeated in the latter part of the third clause, when he directs the disposition of the one-third, which had been loaned , ,.<• TT T ■ , , to his wile during her hie. He desires, that it may be equally divided among his three daughters, to them lent, during their lives, and then given to the lawfully begotten “heirs of their bodies.” Although the language of this will is not very elegant, yet, to my mind, it is very expressive. He uses the words, “to them lent,” to express his will and desire, that the executors, when the event contemplated may occur, shall lend to the daughters during their lives; and when they die, “then,” the executors are to give to the heirs. In this view of the case, the word, “then,” has its full meaning and significancy, as referring to a gift then to be made by the executors. Thus understood, we see why the word “given” was used, instead of the word give. The language used, is equivalent to the phrase, and “then to be given;” not giving directly himself, but vesting the estate in the executor, who is empowered to lend, and give, as directed in the will. If this be the meaning of the will, and we think it is, it will be at once perceived, that the rule, in Shelley’s case, can have no application here, (it being merely an executory trust,) and that Mrs. Loving took only an interest for life; and after her death, her children, the complainants, were entitled to tire property.

But it is insisted, by the counsel for the defendant, that if the construction here given to this devise, be the true one, still the defendant -must succeed, because Gabriel Loving had possession of the negro Mary, more than five years in this State, and it is insisted, that the limitation was not declared by deed or will, duly proved and recorded, and consequently, by our Statute of Frauds, (1801, ch. 25, sc. 2,) the absolute property was with the possession. Upon this part of the case, the first question is, whether the limitation of this property was declared by the will of old Mr. Norvell? It is argued that it was not, because the negroes did not belong to his estate at his death, and were not designated in the will. This, we conceive, can'make no difference. The land was directed to be sold, and with the proceeds, the negroes were to be purchased, as directed by the second clause of the will; and the thing thus directed to be done, was contemplated as done, in making the disposition contained in the third clause. The executor was only an agent, to carry into effect the directions of the will; and if he had 'made a deed to Mrs. Loving, still she would have held under the will, and not under the deed. A deed, from the executor, would have been a mere matter of form; and it cannot for a moment be supposed, that his omission to execute a deed, shall defeat the. intention of the testator, and the right of the legatees. Equity regards that as done, which should have been done.

The last question is, does our act of 1801, ch. 25, sec. 2, apply to such a case as this? Upon this point the chancellor decided the cause against the complainants. In this, we think, he erred.

The Statute, says, the reservation shall be declared “by will duly recorded, or by deed in writing, acknowledged or proved by one witness at least, in a court of record, and registered in the registers’s office of the county where the goods and chattels, or the most valuable part of them are, within eight months after the execution thereof.”

The Statute clearly contemplated, that the deed was to be registered in the county where the goods were, at the time of the execution thereof. It does not, therefore, embrace a case, where the limitation pr reservation was made by deed or will in another State, where the goods were situate at the time. A foreign will could not lawfully have been recorded in this State, at the time of the enactment of this Statute, nor for many years after-wards. The legislature could not, therefore, have intended to make a provision that would produce the forfeiture of a title, for the non-performance of an act which could not be lawfully done. We are the more satisfied with this construction of the act, because it accords with the opinion of Judge Catron, in the case of Crenshaw vs. Anthony, (Martin and Yerg. Rep. 110,) with whose reasoning we concur.

Let the decree be reversed, and decree for the complainants.

Decree reversed.  