
    Ware et als. vs. Sharp.
    Feme Covert. Gift to, by deed. Power of disposition. A gift by deed, of personal property, to a feme covertt ‘‘during her natural life, and then to whomsoever she may by deed or wii| appoint,” restrains her power of disposition to these two modes; for where property 15 given to a married woman, to her separate use, and a mode of disposition is prescribed in the instrument creating the estate, the settled rule of Jaw in Tennessee is that the feme covert can only dispose of the property in tjie mode indicated.
    Husband and Wife. Gift to separate use of wife. Coi\struction of deed and effect to be given to the word “heirs.” The donor executed a deed of gift, of slaves to a feme covert, “to the separate use and behoof of her the said Margaret Kneeland, apart from the opR-trol of her husband, and free and discharged from his debts and liabilities, at this time existing, or hereafter to be contracted — also one piano forte; to hold said slaves and piano forte to her own use, during her said Mai garet’s natural life, then to whomsoever said Margaret may by deed or will appoint or devise, and in default of appointment, to the heirs of the said Margaret forever, &c.” The question in the construction of such a deed, as this is not what quantity of estate, the donee takes by the deed, but whether it was the intention of the settler to exclude the husband’s marital rights altogether; and in such case the word “heirs” has no artificial meaning; it is not used technically, but is used to denote an intention to exclude, as it does in this instance, the marital rights of the husband, and that in default of appointment, the property should pass to those blood relations of thg (Jonee on whom the law \yould csist the personal estate of one •<] yfog intestate,
    
      This was a bill filed in the common law and chancery court of the city of Memphis. At the December term, 1850, Tur-ley, Judge, presiding, there was a decree against respondent Sharp in favor of the brothers and sisters of the donee of the gift mentioned in the opinion. To reverse this decree Sharp prosecuted a writ of error.
    McClanahan and Searcy, for complainants,
    cited 2 Bl. Com., 242; 4 Kent, 220, 222, 226-7; 9 Yerg. 209, 243; 10 Yerg. 224; 1 Bro. C. C., 206; 1 Fearne on Rem.; 10 Ed., by Butler, 194; and Searcy argued:
    This is a settlement of slaves, by a father, on his married daughter, to her separate use for life, free from the control of her husband, and free and discharged from his debts and liabilities at that time existing, or thereafter to be contracted, with power by deed or will to appoint or devise the same, and in default of appointment, then to her heirs forever.
    The only question is, whether upon the death of the wife, the husband by the marital right became the owner of the property?
    By marriage, the sole and absolute property of the wife’s chattels vest in the husband, and this right can only be abridged to the extent stipulated, in any settlement which may have been made. In this case, if no disposition of the property had been made after the wife’s death, the husband as survivor would be entitled. 6 Humph., 227; 7 J. C. R., 246; 3 Humph., 628.
    Here the settlement provides that in default of appointment, the property shall vest in the heirs, which clearly excludes the husband, who is not the heir of the wife. The gift to the heirs shows clearly the intent of the grantor to exclude the husband, he not answering that description. In Buford vs. Collier, 6 Humph. R., 487, the slaves were given to trustees, “for Isabella,” (an unmarried woman,) “and her heirs’ benefit.” And the court said, “the gift for her and her heirs’ benefit, showed the intention to exclude the marital right of any husband she might take.”
    
      Watt vs. Watt, 3 Yes. Jr., 244, was a trust under a marriage settlement for the next of kin of the wife, subject to her appointment, by will, with two witnesses. She appointed in favor of her hnsband, by an unattested will, which was void. Held that the next of kin, and not the husband, were entitled.
    In Bailey vs. Wright, 18 Yes. Jr., 49, there was a settlement in trust to the separate use of the wife, for the joint lives of husband and wife, and in the event of the wife surviving, to pay the principal to her, but in case she should die first, then to pay said principal according to her appointment, by any writing under seal or by will, and in default of appointment in trust for her next of kin, or personal representative — Held that the husband was not entitled, he not being next of kin.
    
      Sugg vs. Tyson, 2 Hawk’s R., 472, is directly in point. That was a marriage settlement, where the property was vested in trustees, for the use of the husband for life, and after his death to the use of the wife and her heirs, and to no other use whatever. The wife 'died leaving her husband surviving. On the death of the husband, and in a contest between the administrators of the husband, and of the wife, and the children and heirs of the wife, the court held, “That the husband was neither heir, nor next of kin .to the wife. That in determining the quantity of the estate, the word ‘heirs’ would be received as a word of limitation, and the same force allowed it as the words‘administrator or executor.’” Yet on arriving at the intent, the court will consider the common meaning of the word — though it be a technical word. That here it was not used technically, because applied to personalty. and shall be taken to mean blood relations, on whom the law casts the inheritance, on the death of the ancestor— and the same with next of Idn.
    It is alleged in the answer, lhat the limitation to the heirs carried the whole estate to the wife, and that she became the' absolute owner. If this were true, it cannot alter the case so far as the rights of the husband are concerned. It does not follow that because the wife has an absolute estate, the right of the husband as survivor will attach. We maintain that if this is an absolute estate, and not a power, yet it is so qualified as to exclude the husband.
    Testator gave one thousand pounds stock, to his married daughter for her separate use, and whenever she should die, to be absolutely in her power to dispose of by will, or writing purporting t > be a will, to any person or persons, purpose or purposes, she should think proper, and in default of appointment, to go oVer to testator’s grand daughter. Held that this was nota power, but an absolute gift, qualified so as to exclude the husband, on the death of the wife. 3 Yes. Jr., 229.
    The court below decreed the property to the persons answering the description of heirs. The word is used in this instrument to denote the persons who are to take in default of appointment, and it would have been extraordinary to have decreed it to those who are not heirs. The heir may take personalty under that designation as a purchaser. 14-Yes., 488. See the case also in 2 Russell, 388; 3 E. C. R., 718, which was a legacy given by testator to his heir, and the court held, that where the word heir was used to denote succession, then it might well be understood to mean such pei*-son as would legally succeed to the property according to its nature and quality. But where the word is not used to denote succession, but to describe a legatee, and there is no context to explain it, otherwise.
    Wright <fc Turley, for respondent.
    
      1st. The husband, by his marital rights, is entitled to the personal estate of his deceased wife, whoever may administer. Hoskins vs. Miller, 2 Dev. Law Rep., 360; Whittie's adm'r. vs. Frazier, 1 Hayw. Rep., 275; 6 Johns. Rep., 110, 118; Hamrico vs. Laird, 10 Yerg., 222. Ira C. Kneeland, therefore, upon the death of his wife, became owner of these slaves, and might well convey them to Sharp, for his creditors.
    2d. There is, it seems to us, but one possible ground upon which any of the complainants could be allowed to recover, and that is, that inasmuch as Margaret Kneeland had a separate estate in these slaves, upon which the marital rights of her husband did not attach till after her death, George G. Ware, her administrator, as such, should be permitted to recover them merely to pay her debts. But she has none, and therefore such recovery is unnecessary, and will not be allowed. Hamrico vs. Laird, 10 Yerg., 227; 6 Humph., 130. It is manifestly a contest as to ownership. Indeed the bill, as to Ware, individually and as administrator, is dismissed in the Chancellor’s decree, and from this there is no appeal.
    3d. We take it, therefore, that the sole question here is, whether the brothers and sisters of Margaret Kneeland aré the owners of these slaves; and that they must fail to recover unless they show they are interested in these slaves as pur^ chasers under the deed to Margaret Kneeland. If their father, either as administrator, or individually, be entitled, that will be of no avail to them.
    4th. We deny that either the father, or brothers and sisters of Margaret Kneeland, have any interest under this deed. She had an absolute, estate. A power of disposition, so general as this over slaves, in a tenant for life, must destroy any intended remainder. Hamrico vs. Laird, 10 Yerg., 223, 224; 3 Humph,, 628,629; Irwin vs. Farrerl, 19 Yes., 86-87; 2 Yerg., 559, 561; 10 Humph. 591. But if mistaken in this, then wc still say Margaret Kneeland had a fee simple interest. The deed is “to her own use during her the said Margaret’s ■natural life, and then to the heirs of said Margaret forever.” This places the entire estate in her. The word “heirs” here is not a word of purchase. 2 Humph. R., 177; 4 Kent Com. 214,230,4 Harr. & Johns. Rep., 431; 9 Yerg. 209,231; 8 Yerg., 29, 31; 10 Humph., 474; 9 Yerg., 242.
    5th. This is not a contract between husband and wife (as was the case of Hamrico vs. Laird, 10 Yerg., 224, 225,) whereby Mr. Kneeland releases or renounces his marital rights. It is simply the case of a gift to the wife by her father, and there is nothing whatever, to carry the property from her husband. 10 Yerg., 226; 7 Johns. Ch. Rep., 245, 246; 6 Humph. R., 127, 129, 130; Bailey vs. Wright, 18 Yes., 49; Watt vs. Wall ^ 2 Ves. Jr., 243; and Sugg vs. Tyson, 2 Hawkes’ R., 472, relied upon by the counsel on the other side, are not like this case. The terms used to exclude the husband are much stronger and more decisive. Besides, the case in Hawkes is of questionable authority, and the able Judge himself, who delivered the opinion, so regarded it. 1 Dev. Eq. R., 189.
   Green, J.,

delivered the opinion of the Court.

The facts of this case are shortly as follows: On the first of June, 1845, George G. Ware, executed to his daughter, Margaret L. Kneeland, then the wife of Ira C. Kneeland, a deed of gift of four negro slaves, “to the separate use and behoof of her the said Margaret L. Kneeland, apart from the control of her husband, and free and discharged from his debts and liabilities, at this time existing, or hereafter to be contracted; also one piano forte, to hold said slaves and piano to her own use during her, the said Margaret’s natural life, then to whomsoever the said Margaret may by deed or will duly executed appoint or devise, and in default of such appointment, then to the heirs of the said Margaret forever,” &c. Mrs. Kneeland died, her husband surviving, without having made any appointment, and without issue. Ira C. Knee-land is also dead, having in his lifetime conveyed said slaves to the defendant Sharp.

The father of said Margaret has administered on her estate, and he, together with the brothers and sisters of said Margaret, are complainants in this bill.

The question is, whether the marital right of the husband is excluded, by this deed, altogether, or only suspended during the coverture.

It is insisted, for the defendant, that an absolute power of disposition is conferred on the wife, which is' inconsistent with the limitation of the estate to her for life only; that she therefore took the entire estate, and as there are no words excluding the husband’s right after the coverture shall cease, as a matter of course, he became owner of the property after her death.

The deed confers on Mrs. Kneeland, an estate for and “during her natural life, and then, to whomsoever she may by deed or will duly executed, appoint.”

Her power of disposition is here restrained to two modes only — by deed or will. For when property is given to a married woman, to her separate use, and a mode of disposition is prescribed in the instrument creating the estate — the settled law of this court is, that the feme covert is restricted to the mode of disposition so indicated.

Now here, the donee takes the property for life and then she may dispose of it by deed or will. Here are two restrictions: First, she has no authority to dispose of the property during her life. Her father intended it for her use and support during life, and did not intend to permit her to sell it, and deprive herself of that provision for her maintenance, which his affection and providence "had made. In the next place, if the estate had been vested in her with unlimited power of disposition, she might have disposed of the piano forte, by verbal sale or gift and delivery; and the statute only requires that the sale of slaves shall be in writing, and does not make a deed necessary. But by the instrument under consideration, the donee can only dispose of the property, to take effect after her death, and that disposition must be by deed or will; so that her power of disposition is not unlimited, and inconsistent with the life estate given her.

2d. But it is said that the use of the word “heirs,” in default of appointment, is a word of limitation, having a technical meaning, which will control all other evidences of intention, and carries to the first taker the entire estate, under the rule in Shelly’s case. If our present inquiry were confined to the consideration of the quantity of estate which was vested in Mrs. Kneeland, there would be much force in this position, and it would be difficult to avoid the application of the case of Polk vs. Farris, 9 Yerg. R., for although the word “heirs,” as applied to personal estate, is not a technical expression, to denote those who take in succession; yet it has been held to have the same force as “executor or administrator,” in determining the quantity of estate conveyed. But our present inquiry is as to the intent of the settler, as to the marital rights of the husband, for if that intent be to exclude him altogether, it is a matter of no concern, whether the wife took the entire estate, or only a life estate. Now in arriving at the intent, we are to look at the whole instrument. We see that the wife is only to have a life estate — that she cannot sell or dispose of the property during life — that she can only make an appointment by deed or will — and that in default of appointment, it is to go to her “heirs.”

It is plain that the word “heirs,” is not used in this deed technically, as it is a conveyance of personal estate, and the defendants must insist, that it shall have another than a technical signification, in order to give effect to the rule in Shelly’s case, viz : that it shall have the same force as the words “executor or administrator.” As, therefore, another than a technical meaning must be given, we think the word as here used is to be understood, in its common signification, to mean, “the blood relations of the wife,” who, the settler intended, in default of appointment, should take the property, in exclusion of the husband. It is not to be understood to mean those persons who would stand in the relation to Mrs. Kneeland of “heirs” at her death, who are to take personally, as purchasers, under the designation of “heirs;” but it means, her next of kin. The settler intended in default of appointment, that those blood relations, on whom the law would cast an intes • tate’s personal estate, should take this property.

The rule in Shelly’s case is, that when the word “heirs” is used in a conveyance or devise, so as to mean the whole class of those on whom the descent may be cast, however remote, it is a word of limitation, and not of purchase; and the first taker has the entire estate, no matter how clearly the intention may appear that he should take a less estate. Such intention is disregarded, because the courts affix to the word “heirs,” an artificial sense, from which they deduce a general intention, inconsistent with the particular intention, no matter how clearly expressed, and which particular intention is thereby frustrated.

But here the question is not what quantity of estate Margaret L. Kneeland took by this deed, but it is, whether it was the intention of the settler to exclude the husband’s marital rights altogether. In such case, the word “heirs,” has no artificial meaning — it is not used technically — and in determining the sense in which it is used, we are to look at the whole context of the instrument. And in doing so, we do not doubt the intention to exclude the husband.

In this view of the subject, we are fully supported. 2 Hawks’ R., 472.

We think, therefore, the next of kin of Margaret L. Knee-land is entitled under this deed. The Chancellor decreed in favor of the brothers and sisters of Margaret Kneeland, instead of her father, and therefore, we think, erred; but as Sharp, the defendant, only prosecutes this writ of error, we order that the decree be reversed, and the cause remanded, to the end, that such decree may be entered, as the complainants, among themselves, may desire — that the defendant deliver up the slaves, and account for hire.  