
    WILLIAM J. MILLER, Trustee, vs. LIZZIE D. FLEMING Et Al.
    1. Where a man’s title can be referred either to the act of law or to the act of man the former shall prevail.
    2. Where, however, the estate is of a different nature from that which he would inherit, he. will take by purchase and not by descent.
    3. There is no substantial difference, in the District of Columbia, • between an estate in common and the estate which passes by-descent. Therefore, when a limitation in a deed is to the right heirs of the grantor, “to take a's tenants in common,” the title passes by descent and not by purchase.
    4. By deed of marriage settlement the settlor conveyed certain real estate to trustees to the use of himself until his intended marriage, then to the use of his intended wife for life, with contingent remainder over to the children of this and a former marriage — fail- , ing which he limited the property in fee to his right heirs “to take as tenants in common and not as joint tenants.” After the marriage the settlor executed a will disposing of certain other property and devising the residue of his estate to his grandson. Held, there being a failure of the contingent remainder, that the residuary devisee took to the exclusion of the right heirs under the settlement.
    In Equity.
    No. 10,421.
    Decided May 14, 1888.
    The Chief Justice and Justices Coz and James sitting.
    Bill of interpleader filed by a trustee to obtain a construction of a marriage settlement.
    On Appeal by defendant, Mills Dean, from a decree of the Special Term.
    The Facts and question presented are sufficiently stated in the opinion.
    Mr. Franklin H. Mackey, for Mills Dean:
    A man cannot, by any kind conveyance known to the law, raise a fee simple in his heirs; hence, it is uniformly held that an ultimate remainder limited to the right heirs of the grantor is void, and that although the freehold be expressly limited away from him, yet it will continue in him as his old reversion, and not as a remainder. The heirs will take by descent and not by purchase. Fearne, Cont. Rem., 49-52, 66; 1 Preston, Estates, 290, 291, 455; 2 Id., 37; 2 Thomas’ Coke, 116, note, 464, note; Watkins, Descents, 168, 169; Godolphin vs. Abingdon, 2 Atk., 56; Cholmondeley vs. Maxey, 12 East., 589; 1 Tucker’s Bl. Com., 138, 140; Lomax, Dig., 413, 414; 2 Washb., Real Prop., 242; Loring vs. Eliot, 16 Gray (Mass.), 568; King vs. Dunham, 31 Ga., 743; Harris vs. McLaran, 30 Miss., 539.
    When the limitation is to the right heirs eo nomine of a testator, the gift is void and the fee will descend. 2 Preston, Est., 17.
    If a conveyance or devise be to uses, or there be a bargain and sale, or covenant to stand seised to uses, and the ultimate use be to the right heirs of the settlor, this use will not be of any avail. 2 Preston, Est., 18; Fennick vs. Mitford, 1 Leonard, 182; Bedford vs. Russell, Popham, 3.
    “ If a copy holder make a surrender to uses and limit the ultimate fee to his right heirs, the limitation will, contrary to the opinion formerly entertained, be of no effect. The surrenderor will retain his old reversion.” 2 Preston, Est., 18. See also Fearne, Cont. Rem., 66,67; Watkins, Copyholds, 96; Noden vs. Griffiths, 4 Burr., 1952; Thrustout vs. Cunningham, 2 W. Bl., 1046.
    “A limitation to the right heirs of the grantor will continue in himself as the reversion in fee. As when a fine was levied to the use of the wife of the conusor for life, remainder to the use of B in tail, remainder to the use of the right heirs of the conusor; it was adjudged that the limitation of the use to the right heirs of the conusor was void, for that the old use of the fee continued in him as a reversion.” Fearne, Cont. Rem., 51, 9th ed. See also Fennick vs. Mitford, 1 Leonard, 182; 1 Inst., 22 b.
    
    As often as the limitation to the right heirs is in effect the old reversion, the interest will of necessity be vested without regard to the language or terms in which the limitation to the right heirs is made. 2 Preston, Est., 37 ; Harris vs. McLaran, 30 Miss., 533.
    Although the testator (a fortiori if the gift be by deed) has limited the fee to his right heirs after several particular estates, it will be a gift to his right heirs, ascertainable at his death, and as such be void. 2 Preston, Est., 37; Godolphin vs. Abingdon, 2 Atk., 56.
    The interposition of a trust estate to preserve contingent remainders, or for the separate use of a woman, will not prevent the remainder or ultimate limitation from failing to take effect. 2 Jarm. Wills, 244, 246, 251-253; 2 Atk., 247, 250; Roberts, Frauds, 175,176; 2 Strange, 1125; 1 Preston, Est., 288, 290, 381, 392; Fearne, Cont. Rem., 57-59; Poole vs. Poole, 3 Bos. & P., 627.
    Whenever a person has an estate to him and his heirs, he is the owner of the whole estate, subject, of course, to any lesser estates which he may have carved out of if. The land and the estate in the land are wholly in his power. They are the property of himself alone. 2 Preston, Est., 37.
    As a consequence he may give, grant or devise the fee, and on the expiration or failure of the intervening estates, his donee, grantee or devisee will take to the exclusion of his heirs; for the heir is bound by the deed or will of his ancestor.
    The rule evidenced by the foregoing authorities is not, strictly speaking, the rule in Shelley’s Case, although it is analogous to it, and founded upon the same reason. It may rather be said to' be the foundation of the latter rule. 1 Harg. Law, Tracts, 572; Fearne, Cont. Rem., 86, 87, 9th Butler’s ed.
    Preston’s definition of the rule in Shelley’s Case shows the distinction between that rule and the more ancient one out of which it grew. That definition is:
    “ Where the ancestor takes an estate of freehold by any gift or conveyance, and in the same gift of conveyance there is a limitation, either mediate or immediate, to his heirs, or heirs of his body, the word heirs is a word of limitation of the estate, and not of purchase.” 1 Preston, Est., 264.
    To bring the case within the rule, the estate limited to the ancestor must bo an estate of freehold. In those instances in which that estate is for years only, the rule does not apply (1 Preston, 309); but that was never a condition necessary to the operation of the more ancient rule that a man may not by any form of conveyance raise an estate in his own heirs. In every such case “ 'í'he ultimate use will be the old use, and descendible as such, whether the grantor does or does not take an. estate of freehold by limitation of use or by implication; or although he takes an estate for years.” Preston, supra; see also Fearne, pp. 43, 50, 51-66; Broom, Legal Max., 393; 2 Bl. Com., 231; Co. Litt., 8, a.
    
    That a reversion will pass under a residuary clause of a will (and a fortiori under a general devise of all -the testator’s real and personal estate), is shown by Goodright vs. Downshire, 2 Bos. & Pul., 600; Doe vs. Weatherby, 11 East, 322; Goodtitle vs. Miles, 6 East, 494; Bettison vs. Rickards, 7 Taunt., 105; Sheffield vs. Mulgrave, 5 Term Rep., 571.
    It is well settled that the only business of a court in construing and giving effect to a marriage settlement is to ascertain what is the declared object of the settlement, and having ascertained that, to give it effect. Neves vs. Scott, 9 Plow., 196; Adams vs. Law, 17 How., 417.
    “In marriage settlements the issue are considered as claiming a provision in the capacity of purchasers for a valuable consideration, under the purport and intention of the stipulated terms, upon which that marriage was engaged. and which gave them birth.” Fearne, Cont. Rem., 112.
    “ Next, after the parties to the marriage, the Court considers the issue to be the only objects of the settlement and trusts, and pays less regard to the remainder over to the right heirs, as no immediate objects of consideration in the settlement.” Id., 329.
    
      “ The remainder to the heirs of the husband is merely voluntary and not to be aided by a court of equity. Id., 329. See also Preston, Est., 385-395.
    The superadded words, “to take as tenants in common,” do not in any way, under the law in force in this District, change the quality of the estate which the heirs would take by descent, even if it be admitted that heirs in this District take as coparceners; for there is in the United States no difference whatever between the estates which coparceners take and that which is taken by tenants in common.
    “The technical distinction between estates in coparcenary and estates in common may be considered -as extinguished in the United States.” Bac. Abr. title Coparceners, Bouv. ed., citing 4 Kent, Com., 363; 1 Hill Abr. Real Prop., 792; 2 Id., 352. See also Cooley’s Bl. Com.,; Washb. Real Prop., 414.
    The case of Gilpin vs. Hollingsworth, 3 Md., 190, upon which the other side rest for the maintenance of their proposition, gives no reason whatever for the conclusions of the Court, except that the judge, to his brief utterance of three or four words, adds, “ and they (heirs of an intestate) are so treated by the act of .1820.” But if we look to the Maryland act of 1820, we will see that as a matter of fact they are not so treated. The word parceners is used but once, and that clearly in the sense of partitioners; but if they are so treated by the act of 1820, that act is not in force in this District. The opinion cites no authority in support of it, except that of Hoffar vs. Dement, 5 Gill., 132, a case equally as barren of reason and authority; and furthermore, both of these cases are overruled by the later case of Clarke vs. Smith, 49 Md., 106-119, where it was held that a direction that the estate should be equally divided among those taking as heirs, is not inconsistent with or repugnant to the descent from the first taker to his heirs as such. That case decided the very opposite of Hoffar vs. Dement and Gilpin vs. Hollingsworth. Moreover, those two cases, having been decided since the cession, can have no force in this District, except in so far as they are supported by reason and authority, Phillips vs. Negley, 117 U. S., 665.
    In Allen vs. Bayliss, 2 Mac A., 180, and Jost vs. Jost, 1 Mackey, 487, directly the reverse of Gilpin vs. Hollingsworth and Hoifar vs. Dement was decided. If, therefore, it be still insisted that heirs take in this District as coparceners, then the Court, to have come to the conclusion they did in the cases first above cited, must necessarily have held that in quality there is no distinction in this District between a tenancy in common and a tenancy in coparcenary.
    Messrs. Morris & Hamilton, contra:
    
    The contention of defendant, Dean, is based upon a forced construction placed on a technical rule of the common law which is closely associated with and analogous to the rule in Shelley’s Case, and which is equally as obnoxious to the policy of the law as now administered in the courts of .this country.
    While many of the propositions of law stated by counsel in his brief are accurately stated, they have no ■ application whatever to the question at issue in this case; and its author fails not only in his attempted application of the rules and principles of law, which he has collected together with so much labor and learning, but also to appreciate the fact that he is in a court of equity seeking the construction of equitable estates created by a deed of marriage settlement, which is always to be construed in the light of the intention of the grantor, to be gathered in the consideration of the entire instrument, rather than by the application of technical rules and forms and precedents once applied in the courts of common law, but even there unrecognized at the present day. Loring vs. Eliot, 16 Gray, 568.
    It is apparent from the language of the provisions of the deed of settlement that the grantor intended his children or their issue to take as purchasers and not by descent. If they took by descent, they would take as coparceners. The deed positively provides that they shall take as tenants in common. It is well settled by authority that by the creation of a joint tenancy or a tenancy in common, property passes by purchase and not by descent: Gilpin vs. Hollingsworth, 3 Md., 190; Hoffar vs. Dement, 5 Gill, 132; Hall vs. Jacobs, 4 Harr. & J., 245.
    From the grantor’s indifferent o'r indiscriminate use of the words children and heirs, when referring to his issue, it is fair and reasonable to suppose that • he regarded these words as synonymous; and this, taken in consideration with other circumstances and with other expressions contained in the deed, shows that he meant only to provide for such of his children by a former marriage or their descendants who should be living at the date of his wife’s death — all persons who should then answer to the description of his heirs at lawr; and the superadded words of limitation show that he intended such children or issue to be the stock or termini for the succession to take its course from.
    To hold that the grantor in this deed of settlement retained after its execution and delivery a reversion in the property, which reversion could be made the lawful subject of a grant or devise, would be to create a rule of law more technical, more unjust and onerous than any rule known even in the days of Ooke or Blackstone, and would serve to restrict, if not to destroy, the force, effect and efficacy of deeds of marriage and family settlement — a form of conveyance which has proved most beneficial to the public and which is favored by the policy of modern law.-
   Mr. Justice Cox

delivered the opinion of the Court:

In this case it appears that Edward Owen, of this District, on the 21st day of December, 1861, being about to contract a second marriage; executed a deed of settlement premising that in consideration of his intended marriage and for making for and towards the jointure of the said party of the second part” (his intended wife) in case after the solemnization of the marriage, she survived him “ and also for making some provision for the sustenance and support of the children and issue of the intended marriage” he conveyed the property in question to Mr. Miller, upon trust: first, to hold to the use of the settlor until the marriage, and then for the use of his intended wife for life, free from all debts and control of the settlor, and the rents to apply to her sole use and benefit and for the sustenance and support of any children of the marriage; and, third, if she should die before the settlor without leaving any children, then to the use of the settlor, his heirs and assigns; fourth, should she survive the settlor, and then die leaving children of the marriage, then the property was to go to the use of such children and the children of the settlor’s former wife ; and, lastly, should she survive the settlor and then die without leaving children of the marriage, then “to the use of his right heirs and their heirs and assigns, as tenants in common and not as joint tenants.”

In other words, to state it more briefly, the conveyance is made in trust, first, for his intended wife for her life, and in case of her death after him without leaving children (which was the case) then to the use of his right heirs as tenants in common and not as joint tenants.

Now, doubtless under the advice of counsel,. Mr. Owen assumed that this remainder was a nullity and that the conveyance left the reversion in him, and his heirs would take by descent, instead of as purchasers under this settlement. Therefore he made a will disposing of certain other property and devising the rest and residue of his estate to the defendant, Mills Dean, which would include this property. After his death, six heirs claimed that they were entitled to the property by way of remainder. On the other hand, Mr. Dean contended .that he was entitled to it, 'and Mr. Miller, the trustee, not being willing to solve the question himself, asks the instruction of the Court as to what he shall do in the premises.

The question has been discussed by Mr. Mackey with great learning and a copious citation of black-letter authorities which would be very interesting for the Court to review in detail. But we have not the time and do not deem it necessary to go into them at length, and I shall only state some general conclusions which we think dispose of the question. Its very well settled, and it is an ancient rule, that if a man’s title can be referred to either the act of the law or to the act of man, the former shall prevail. It is a recognized qualification of the rule, however, that if a devise gives to the heirs an estate of a-different nature from that which they would inherit, then their title will be referred to the devise and they will not take by descent. It is claimed that the same qualification applies to a deed, limiting an estate to them in remainder.

The principal question in this case is, whether the peculiar language of this remainder would give'to Owen’s heirs á different estate from that which they would take by descent. It is argued, for the heirs, that it has that effect by reason of the use of the words “ to hold as tenants in common,” the contention being that if they take by descent they take as coparceners. That leaves us to consider what is the .law of descent in the District of Columbia.

An estate which descends equally to all children, without regard, to-sex, was not known to the common law at all, but is purely a creature of statute. The Maryland Act of 1786, which is our Statute of Descents, commences by reciting that the law of descents which originated in the feudal system and military tenure is contrary to justice and ought to be abolished; and then it goes on and enacts that on the death of a man intestate his estate shall descend equally to his children. It does'not use the word parceners or coparceners, from the beginning to end. We are in the habit of speaking of those taking by this statutory descent as coparceners because the only estate which at common law descended to more than one person was an estate in coparcenary. But it is perfectly competent for a statute to create an estaté which will descend to several persons who will yet not be coparceners: It may be substantially, to all intents and purposes, an estate in common.

Is there any difference between an estate in common and. an estate which passes by our law of descent? Let us see now whether there -would be any difference, whether these heirs are to be considered as coparceners or as tenants in common. Each heir in this case would take precisely the same undivided interest in the estate, and would be able to transfer it ¿nd transmit it to heirs in exactly the same manner and would have exactly the same right of partition, and not only that, but their estates would have the same identical unities of time, title, interest and possession: It is impossible to point out any difference, whether they take it as tenants in common or as coparceners.

• This question, as to the effect of this statute, is suggested as far back ás the year 1804 in the Court of Appeals of the State of Maryland in the case of Mitchell vs. Gover, 1 ITarr: & J., 507, where an action of ejectment was brought by several heirs, and the question was whether they had a right, to join, or, as tenants in common, they ought to sue separately, The cause was finally settled, so that no opinion of the Court was given. But Luther Martin who, as we know, was one of the greatest lawyers of this country, used the following language in argument:

“Under the act of 1786 the descendants take the estate as heirs sub modo. They take in the same manner as tenants in common. The Act of 1786 vests a particular estate; It is not an estate of joint tenancy, tenancy in common or parcenary. But it is an estate peculiar to itself. It is not in the power of any one of the heirs to compel a partition of the estate. The act points out how the division is to be made, by application to the county Court, or Court of Chancery, and one of the heirs may take the whole estate if it will not admit of division, by paying to the others their proportion under valuation. The estate has qualities similar to that of a joint tenancy, tenancy in common and coparcenary.”

The question arose at a much later date in the case of Hoffar vs. Dement, 5 Gill, 132, in which the Court of Appeals was construing the Act of Maryland of 1820 and not ■that of 1786.

There was a case before this Court (Power vs. Davis, 3 Mac Arthur, 153) in which the main question was whether a certain paper purporting to be a codicil, leaving pecuniary legacies was ever completed, and the Court held unanimously that it was not. But in addition to that, Judge Mac Arthur, speaking for himself, held that the real estate in the hands of the heirs was not chargeable with the legacies, because the heirs took as purchasers and not as heirs. , __ .

This might, however, be, not because the devise was intended to pass a tenancy in common, while the descent would give a coparcenary, but because the devise was to children and not to heirs. A devise to children would give an estate by purchase, which would be entitled to as much favor as a bequest of money; and this would be sufficient to sustain the judge’s conclusions. As far as his opinion extends beyond this, he does not commit the Court and he is not sustained by the cases referred to.

Judge Wylie concurred in the opinion, and that is all we find: but there is no such clear committal of the Court to this view as would hamper us in our determination of this as an original question; and we are of the opinion that there is a substantial identity between the estate limited by this deed to the heirs and that which they would take by descent, and therefore such a limitation left it disposable by the testator by deed or will and the will gives the property to Mr. Dean, who is claiming it.

It is further contended, on behalf of the devisee, that by no kind of conveyance could the testator give a fee simple estate by a deed to his heirs. It is admitted that by will he might, but that he cannot by deed, even by way of remainder, give an estate in fee simple different from that which they would take by descent. But it is not necessary to examine that question in the view we take of the case.

We are of opinion on the whole that Mr. Dean is entitled to the property.  