
    Margaret Stockton against Martin.
    Columbia,
    1802.
    A settlement made by a father on his daughter for life, and after her death to her children, share and share alike, but limited in the habendum of the deed to the heirs of her body, deemed loo remote,so that the whole rests in the first taker and liable to the husband’s debts.
    TROVER for sundry negroes. Verdict for plaintiff. Motion for new trial.
    By a deed produced on the trial, it appeared that one Havens, the father of the plaintiff, previous to her marriage to Mr. Stockton, lately deceased, settled on his daughter the negroes in question during her life, and then to her children share and share alike. .In the habendum of this deed, the negroes were given to Miss Havens for life, and then to the heirs of her body; and in the warranty of this deed, he wax-rants the negroes to his daughter for life, and then to the heirs qf her body. After Stockton!s death, these ne-groes were seized and sold for his debts, and the defendant Martin, at the sheriff’s sales became the purchaser. Stockton died, leaving sevex-al children. This was therefore a suit by Mrs. Stockton, the guardian of her children, on behalf of herself and them, to recover back these negroes. And the jury, under the direction of the presiding Judge, gave a verdict for the plaintiff.
    This, therefore, was a motion for a new trial, on the ground of the yerdict being against law.
    •. Mr. Nott, for defendant,
    in support of the motion, argued, that the limitation over in this caso was too remote, and consequently that the property vested id the first taker Mrs. Stockton, and as such upon the marriage, it became the property .of the husband and liable for his debts.
    That the limitation in this case being to the heirs of the body, it created an estate tail of a chattel interest, which had been determined in this court to be too remote, and rested in the first taker, in'the case of Dottv. Cunnington, yol. 1. p. 453. Riley's edit. That if any doubt could arise upon the construction of this deed from the premises, the habendum and zvarranty had both explained it and put it beyond all doubt, as they both confined the limitation to the heirs of the body only.
    For the plaintiff, against the motion, it was admitted, that . if there had been no other words in this deed than those contained in the habendum, that it would have been an estate tail, and consequently it would have been too remote for the limitation of a chattel; it would have vested in the pre-taker, on the authority of the case of Dott v. Cunnington ; but it was contended, that there was a wide difference between that case and the one under consideration. There were no words in the deed in that case, which could be laid hold of, to shew that it was not an estate tail. Every part of it, both the premises and habendum limited the property to the heirs of the body, and there was nothing further explanatory of the donor’s intention. Whereas, in the present case, it was most evidently the- father’s intention to make a provision for the daughter for life, and after her death to her children share and share alike ; that is, to such children as she might have living at the time of her death. This limitation was not too remote, but to persons in esse at the time of her death, who could take, and within every rule of law. It was true, that the habendum differed from the premises, inasmuch as it was to her during her life, and after her death to the heirs of her body; but these latter words, ought in a case like this, where the donor’s intention was to make a provision for his daughter, and such children as she might have at her death, to have a liberal construction for the benefit of a young family; and these words, heirs of the body, in the habendum, ought in conformity to the donor’s intention, expressed in the premises of the deed, to be construed to extend to her children ; because, “ heirs “ of the body” here means children, and the words share and share alike confine it to those living at the time of her death, and not to indefinite issue. That these words, share 
      
      andshare alike, have always had a very liberal construction given to them when applied to children, both in wills and deeds, whenever it appears to have been the testator’s or donor’s intention to make provision for a family.
   The majority of the judges were of opinion, that as the habendum of a deed is that part of it which declares and limits the use of the thing conveyed» and as the negroes in question are limited in the habendum to the heirs of the body of Mrs. Stockton, after her death, it created an estate tail of a chattel, which was too remote, and vested the property in the first taker, Mrs. Stockton ; consequently, Stockton upon his marriage acquired a right to such property, and of course it became liable for his debts. They were therefore of opinion, that the verdict should be set aside, and a new trial granted.

Bay differed in opinion, and agreed with the presiding Judge on the trial, that as this deed would admit of an equitable construction, and was intended as a provision for a young family, it should be construed liberally, and not be trammeled with the rigid rules of law. That if this deed was dissected and examined critically by piecemeal or by fragments, and the latter part was construed to control the formei", it might admit of the construction contended for. But if, on the contrary, the premises and habendum were taken together with reference to each other, and as explanatory of the donor’s intention, he was of opinion, that the limitation over to the children, after the mother’s death, was regular and within all the rules of law on that subject, and that the words in the habendum might be qualified by the plain and obvious intent and meaning of those in the premises. And this construction would not militate in the smallest degree against the case of Dott v. Cunning-ton, where there was not one sentence in any part of the deed to justify the court in giving an equitable construction to it.

Rule for new trial made absolute.

All the judges present.  