
    *Henry Deas and Wife, vs. Ann Julia Horry, Charles D. Manigault and Wife, and Edward R. Laurens and Wife.
    A remainder cannot be limited after a fee conditional. [*246]
    Testator by his will devised an estate to his son, E. L., for life, and at Ms death to the first son of E. L., and the heirs of his body lawfully issuing, and in default of such issue, to the second, and every other son of E. L. successively and in the order of birth, and to the several heirs of their bodies in like manner; and in default of sons, with like limitations to the first, second and every daughter of E. L. and successively in the order of their birth, and the several heirs of their bodies, &c.: and died in 1785, leaving one son, E. L., and a daughter. His son, E. L., the tenant for life had a son and three daughters; the son of E. L. died in 1797, without issue, and his father in 1831: — held, that the first son of E L. took a fee conditional; that all the remainders after the devise to him, were void; and that on his death, in 1797, the fee reverted to the right heirs of the testator. [*247]
    Although the testator died before the Act of 1791, abolishing the right of primogeniture, the reversion must go to those who were heirs at the time the fee conditional determined. [*248]
    A possibility of reverter is not devisable, (per Harper, J.) [*248]
    Before Chancellor De Saussure, Charleston, January, 1884.
    This bill was filed for partition between the plaintiffs and defendants, of a plantation called Hickory Hill, and for a moiety of the rents and profits, from the death of Elias Lynch Horry, in 1831.
    In 1183, Elias Horry, the father of said Elias Lynch Horry, deceased, and of the plaintiff, Margaret Deas, made his last will and testament, duly executed, to pass real estate, containing the following clause:
    “ I give and devise unto my son, Elias Lynch Horry, for and during the term of his natural life, without impeachment of or for any manner of waste, all that (my) plantation or tract of land, situate in Prince G-eorge’s Parish, in this State, called or known by the name of Bear Hill, [here the property is particularly described,] and from and after Ms decease, to the first son of the said Elias Lynch Horry, and the heirs of the body of such first son, lawfully issuing, and for default of such issue, then to the second, third, fourth, fifth, sixth, seventh, eighth, ninth, tenth, and all and every other, the son and sons of the said Elias Lynch Horry, severally and successively and in remainder, one after another as they and every of them shall be in seniority of age and priority of birth, and the several and respective heirs of the body and bodies of all and every such son and sons, lawfully issuing, the elder of such sons and the heirs of his body, lawfully issuing, being always to be preferred and to iahe before the younger of such sons, and the heirs of his or their body or bodies issuing; and for default of such issue, then to the ■ first daughter of the said Elias Lynch Horry, and the heirs of the body of such first daughter, lawfully issuing and for default of such issue, then to the second, third, fourth, fifth, sixth, seventh, eighth, ninth, tenth, and all and every other the daughter and daughters of the said Elias Lynch Horry, severally and successively, and in remainder, one after another, as they and every of them shall be in seniority of age and priority of birth, and the several and respective heirs of the body and bodies of all and every such daughter and daughters lawfully issuing, the elder of such daughter and *the heirs of her body, lawfully issuing, being always [-*245 to be preferred and to take before the younger of such daughters L and the heirs of her or their body or bodies issuing, subject nevertheless to the several limitations, conditions, restrictions and provisions hereinafter mentioned of and concerning the same” — and died in 1785, leaving the said will in full force. Elias Lynch Horry entered on the devised premises, married and had a son named Elias Lynch Horry, who died in the month of July, 1797, unmarried and without issue. Elias Lynch Horry, the father, died on or about the-, 1831, leaving three daughters, Ann Julia, Horry, Emma L., who intermarried with Charles D. Manigault¡ and Margaret H., who intermarried with Edward R. Laurens,, his sole heirs at law; and now the said Margaret Deas and the said three daughters of Elias Lynch Horry, are the sole heirs at law of the testator, Elias Horry.
    The plantation named Bear Hill, in the said devise, has been exchanged for the plantation called Hickory Hill, and this latter is in all respects substituted in the place of the former. The plaintiffs contend, that under the facts stated, and the law of this State, Mrs. Deas is entitled to one moiety of the plantation, and of the rents and profits from the death of the tenant for life, Elias Lynch Horry. The defendants demurred to the bill.
    The Chancellor sustained the demurrer and dismissed the bill, and from his decree the plaintiffs appeal on the grounds:—
    • 1. That the fee conditional created by the will of the testator vested in the son of Elias Lynch Horry, and in becoming so vested, all the subsequent limitations were void
    2. That a fee cannot be limited after a fee, to take effect on an indefinite failure of issue.
    3. That on the death, in July, 1797, of the son of Elias Lynch Horry, the possibility of reverter of the fee conditional vested in the said Elias Lynch Horry, and the plaintiff, Mrs. Deas, as the sole heirs at law of the testator, Elias Horry, subject to the estate of the tenant for life, Elias Lynch Horry.
    4. That on the death of Elias Lynch Horry, the plaintiff, Mrs. Deas, became entitled to the possession of one moiety of the said plantation, and the defendants to the other moiety.
    5. That the plaintiffs are entitled to a moiety of the rents and profits from the death of Elias Lynch Horry.
    
      *Petigru and King, for the appellants,
    cited and commented on [-¡tmifi the following authorities: Archer’s case, 1 Co. 63; Fearne on Rem. 4 314, 514, n. 1, lb. 517 ; Adams v. Chaplin, 1 Hill’s Ch. 265 ; 3 T. R. 489 ; 4 lb. 39 ; 2 Bail. 248; 3 Cruise, 461, tit. 29, Ch. 4, s. 2; Fearne, 548; 1 Russ. & Milne, 117 ; 8 Wheat 77 ; 1 Dorn. 411; 4 Kent’s Com. 258-9, 3 Ed.; Fearne, 371-2; 1 Cruise, 19; 4 P. W. 372; Co. Lit. 426.
    
      
      R. B. Smith and Dunhin, contra,
    cited the following : Bract. 2 book, sect 6; Fearne, 383, 354; 2 Saund. 380; 2 Bl. Com. 110; Plow. 241; 2 Prest. 301; 1 Yes. Ill; 1 Hill’s Ch. 273, 298; 1 Co. Lit. 219, 255 : 2 Atk. 282; Fearne, 378; 1 Prest. 75; 4 Kent’s Com 498; 4 Com. Dig. 248, tit. Est K.; 8 East, 568 ; 1 Taunt. 585-6, 604; 2 Prest. 204; 3 T. R. 88; 2 Bur. 1131; iff. Black. Rep. 251; 2 Eq. Rep. Ill, 112; 2 Bos. & Pul. 665 ; ’ Cruise, tit. 29, sect. 16.
   Harper, J.

There would be no question respecting this will in England. It would have given an estate for life to Elias Lynch Horry, the father, with remainder in. tail to his first and other sons, and in default of sons, to his daughters, successively, in the order of birth, leaving the reversion in the testator’s right heirs. On the birth of the son, the remainder in tail would have vested in him, and on his death, in 1797, would have vested in interest in the eldest daughter of Elias Lynch Horry, the elder, and on his death, in 1831, would have vested in possession, leaving the reversion still in the right heirs of the testator.

In like manner with us, there is no doubt but that Elias Lynch Horry, the father, took an estate for life, and that on the birth of the son, a fee conditional in the land vested in him. The first question is as to the validity of any remainder limited after the first devise of the fee conditional. In the case of Mazyck v. Vanderhorst, decided by this Court, it was determined that no remainder .could be limited after a fee conditional. The same thing was determined by me, as Chancellor, upon full consideration in the case of Bailey v. Seabrook, on the clear preponderance of the more modern authorities, notwithstanding the authorities of Bracton and Fleta, showing the existence of a different rule in their times. The same point was again determined by me, in the case of Chaplin v. Adams, 1 Hill’s Ch. R. 265, which determination was affirmed by this Court.

'*2471 *■*■* *s ^rue ^at case Bailey v. Seabrook, I threw out -* the suggestion, on the authority of the quotations from Bracton and Fleta, that before the statute de donis, there might have been a limitation of the fee conditional to several in succession, each taking the same qualified estate without having relation to the ultimate possibility of reverter; a sort of substitution not involving the power to limit the fee absolue; but, as said in that case, this is speculation too uncertain to found a conclusion upon. The passages referred to, import that the ultimate possibility or fee absolute may be limited. The whole current of English authorities is that no remainder can be limited after a grant of the fee simple conditional; and the reasoning of the cases illustrates this, because by the grant the first taker has the whole estate, so that there is nothing left in the grantor to be the subject of a further grant; and the further reason assigned in William and Berkley, Plowd. 235, 239, and other authorities, that before the statute, no formedon in remainder lay, so that such a remainder man would have been without remedy. This has certainly been the law of England since the time of Plowden — and should we be authorized to depart from it on our construction of the older authorities ?

All remainders, then, after the devise to the first son of Elias Lynch Horry were void; and on his death in 1797, his estate was determined and the fee reverted to and vested in the right heirs of the testator, Elias Horry. Who were those right heirs ? At the death of the testator, before the passing of the Act of 1.791, abolishing the right of primogeniture, his son, Elias Lynch Horry, was his heir at law; but at the death of his son in 1797, the father, Elias Lynch Horry, together with his sister, the plaintiff, Mrs. Deas, according to the provisions of that act, answered the description of the testator’s heirs at law. The point was considered by me in Adams v. Chaplin, in which case also a fee conditional was devised by a testator who died before the Act of 1791, and the estate determined after the act. I refer to that case for the rule of the English law — “ That where a person entitled to an estate in remainder or reversion expectant on a freehold estate, dies during the continuance of the particular estate, the remainder or reversion does not descend to his heir, because he never had a seizin to render him the stock or root of an inheritance, but it will descend to the person who is heir to the first purchaser of such remainder or reversion, at the time when it comes into ^-possession” — and for the reasons which induced me — supposing r^o the rule to be different with respect to a remainder or reversion L under our statute of distributions, yet to conclude that with respect to a fee conditional, the estate must go to the person who can make himself heir to the grantor of the fee conditional, when that estate determines. It was argued that on the death of Elias Horry, the right of reverter descended on his son, Elias Lynch Horry, and it seemed to be thought that this right could not be divested by the act of legislature. But why not ? It belongs to the legislature to direct the course of descent, and declare who shall be heir. It is true that the right of reverter descended on Elias Lynch Horry in this sense, that if the fee conditional had determined at any time after the death of his father, and before the Act of 1791, he would have been the person then entitled to the benefit of it. But that right he could not have transmitted to his heir, if the Act of 1791 had never been passed. Such a right, according to the views before expressed, is not regarded as property, it is a mere possibility, analogous in some degree to an heir apparent’s right of succession.

Besides, as was justly observed in argument, if the act of the legislature is not to have effect, it must be on the ground that it is opposed to those provisions of the constitution, which are intended for the protection of private property. There is no other restraint than the constitution on the legislature. But the constitution itself provides that the right of primogeniture shall be• abolished, and in passing the Act of 1791, the legislature was only carrying the direction of the constitution into effect,

It was further argued that the right of reverter having descended on Elias Lynch Horry, the father, passed under the residuary clause of his will to his daughter. But this is a plain misconception. At the time of his death there was no possibility of reverter. The fee had long before vested in himself and his .sister, Mrs. Deas, and he could not divest her interest by his will. But I do not hesitate to express my opinion that such a possibility of reverter is not devisable. An authority relied on was the note to Kent’s Com. vol. 4, p. 498, n. d. “ Mr. Preston doubts whether a mere possibility of reverter be devisable, but there seems to be no reason for doubt since the decision in Jones v. Roe.” But with proper deference to that distinguished jurist, it does not appear to me

that case Jones v. Roe R. 88) concludes this *matter. 4 J What is determined in that case is, that an executor devise is devisablq; that is, the interest which the devisee takes before the event on which it depends is determined. It is said that a possibility coupled with an interest is devisable. But I am persuaded that the right of reverter is not regarded as such a possibility. In the case of Goodright v. Forrester, 8 East, 552, subsequent to Jones v. Roe, it was determined that the right of entry could not be devised under the Stat. Wills, 21 H. 8, O. 1, which provides that persons “having manors, lands, tenements or hereditaments,” may dispose of them by will. It was argued on the terms of our statute of 1189, which authorizes any person having “right or title to any lands, tenements or hereditaments whatever,” to dispose of them, that the possibility of reverter is an hereditament, being descendible, and is therefore devisable. The possibility of reverter is descendible in the sense I have before 'pointed out; and exactly in the same sense the right of entry is descendible, and there seems to be no substantial difference in the words of the two statutes. But what is a right of entry ? The party has been divested of the estate by disseisin, but has the perfect present right of re-investing himself with the title by entry. Mr. Preston, in his elaborate argument of the case of Goodright v. Forrester, in the Exchequer Chamber, 1 Taunt. 603, (where it was finally determined on different grounds, without impugning the decision of the Court of King’s Bench on the point,) admits the authority of Jones v. Roe, but argues that, in point of law, though it is otherwise in point of fact, a right or title of entry is no interest; at least no interest for the purpose of disposition, though it is an interest which may be released, it is merely a naked possibility. But he who has the possibility of reverter, has no present interest, either in law or in fact, and the presumption is, that he will never have any, the whole estate, according to the cases, is in the' tenant in fee conditional. Is this less a naked possibility ? — The only decree which can be made at present is, that the decree of the Chancellor be reversed, and the demurrer overruled, and it is Ordered and decreed accordingly.

Johnson, J. and O’Neall, J. concurred.  