
    June, 1809.
    Joseph Hamilton and Rebecca, his wife, against Joshua Hempsted.
    
      A. devised his lands to his son B. and his male heir; but if he should have no male heir, then to his daughters; and it he should die without issue, then l.o the daughters of A. Held, that B took an estate-tail. By the common law of Connecticut t an estate-tail became an estate in fee-simple ift the issue of the first donee in tail.
    In 170?, the General Assembly of Connecticut had not so far parted with their judicial authority as to Í»recl udethem rom awarding reve trials In subordinate tribunals.
    MOTION for a new trial.
    This was an action of ejectment by the plaintiffs, in the right of the wife, claiming title to the demanded premises as tenants in common with the defendant, and alleging an actual ouster and exclusive possession by the defendant.
    The general issue was pleaded.
    On the trial, it appeared, that Joshua Hemfisted thé first devised the premises by a will dated the 17th of October, 1683, to Ms son Joshua Hemfisted the second, with this clause of limitation : “ Which lands, (to say,) all the lands given him, shall accrue unto the heir male of my said son, and not to be alienated; but if it should please God, he should have no heir male, then it shall become his daughter and daughters; and if it should please God, he should die without issue, then to be divided among my daughters, all or so many of them, as shall be then living.”
    In 1689, the testator died. No executor being named in the will, Elizabeth, widow of the testator, took out letters of administration in 1690, and proceeded to settle the estate as an intestate estate.
    On the 1st of October, 1706, the will was presented, by Joshua Hemfisted the second, to the court of firobatc in Hete-London county, for probate, which was refused. 1 he record of that court is as follows: “ At a Court of ‘Probate, held in jYew-London, October the 1st, 1706,
    
      « Mr. Joshua Hemfisted appearing at this court, pre-sen ted the will of his deceased father, Joshua Hemfisted. for probate; ,and this court, considering there is no executor appointed in said will, and that the court have granted administration on said estate sixteen years ago.; and also, there being two children of the testator now surviving, which were born since the will was made; for the above recited reasons this court do not see cause to give a probate to said will.”
    From this decree an appeal was taken, the record of which is as follows: “ Joshua Hemfisted has an appeal from this judgment to the court of assistants to be holder: in Hartford in May next. He, the said Joshua Hemfisted, acknowledges himself bound in a recogni-sance of ten pounds, current money of New England, to the public treasury of Connecticut colony, that he will prosecute the abovesaid appeal to effect, and answer all damages in case he make not his plea good.”
    This appeal was entered at the court of assistants, ⅛ October, 1707, who thereupon proceeded to act on the same, and established the .will. The record of their decree is as follows: “ This court, considering the premises, do approve ami allow the said will to be the last will and testament of the said Joshua Hemfisted, deceased, and that the disposition of his estate ought to deregulated by it; always provided, that the children bom since the date of the will be allowed their portions out. of the whole estate equal to the daughters born before the will was made, to be deducted out of the portions of all of them by proportion, according to what is allowed to each of them by the will.” Elizabeth, the widow, and Joshua, the son, of the testator, were, at the same time, appointed administrators.
    
      In October, 1708, John Edgcomb and said Elizabeth whom he had married, preferred a petition to the general assembly for ⅜ new trial, which, after a full hearing, was .granted. The reasons, which the record assigns for this decision, are, first, that the appeal from the court of f róbate was entered, not at the next court of assistants, but at the next court but one ; and secondly, that the ap- * polices, now petitioners, had neglected to take a review of the decree, which they might have done.
    In October, 1709, a new trial was had, before the court of assistants, and the will established, according to the principles of the decree made two years before. Joshua Hempsted the sedond then went into possession of the premises. His title was afterwards confirmed by releases from the other heirs and claimants.
    On the 27th of November, 1758, he made his will; whereby he devised the premises to his grandson Joshua Hempsted the third, son of his eldest son, Nathaniel Hempsted, deceased, and “ to the male heirs of his body lawfully begotten, by a succession for ever from generation to generation.” /This will, after the testator’s death, was regularly proved and approved.
    
      Joshua Hempsted the third died, seised of the premises, without a will, leaving sundry children, male and female, of whom Rebecca Hamilton was one. The defendant was so!) of the eldest sou of Joshua Hempsted the third, and claimed under the second will as the heir to whom the estate was limited.
    In support of this claim, he contended, first, that the - will of Joshua the first was not legally proved and approved; secondly, that by the words of that will, Joshua the second took an estate in fee-simple; and lastly, that if he took an estate-tail, it could not be inherited by a female defendant.
    The court instructed the jury, that the law was so, upon the facts which have been stated, that the will of Joshua the first was duly proved and approved; thát the demanded premises were thereby entailed to Joshua the second; and that the estate became a fee-simple in Joshua the third, the issue of the first donee in tail.
    The jury, in pursuance of these instructions, found a verdict for the plaintiffs; whereupon the defendant moved for a new trial. This motion was reserved for the consideration of the nine judges, before whom
    
      Law and Cleaveland, for the defendant,
    insisted upon the same positions, which had been urged and overruled on the circuit.
    1. The will in question was not exhibited for probate, until many years after the death of the testator. The court of fir abate then refused to allow it. From this sentence no regular appeal was taken. The statute then in force made provision for an appeal from any order, sentence, decree or denial, that should be made by the court of firobate, referring to the approbation and allowance of any will, to the next court of assistants, and to no other after. The proceedings on the appeal,/ which was taken to the next court but one were, there-/ fore, void, being coram non fudice. The subsequent pro-, ceedings of the general assembly could not remedyi this defect. .Jhe rights of the parties had become" vested in pursuance of the decree of probate. The general assembly, therefore, could not interfere in their legislative capacity; and as to the subject matter of this application* they had parted with their judicial authority.
    2. It is clear, that by the English law, the words of this devise, in a deed, would not create an estate-tail. In a devise, it is true, their courts would give effect to the intent of the devisor. But there, the policy of the law is in favour of entailtnents. The policy of our law is opposed to them.
    3. The law, at the time of making this will, was not so, that an estate-tail became a fee-simple jn the issue of the first donee in tail. By the statute, which was then in force, and which had existed from a very early period of the government, all persons were fully authorized to make all lawful alienations of their lands and other estates. To determine what wa, a ‘‘ lawful alienation,” reference must be had to the law of England. It was to this law that the framers of the act had reference, when they used those words. The law of England was our law, except where it had been altered by express statute, or where it was peculiarly opposed to the policy of our law. In practice, entailrnents have been regarded as operative here to the same extent as they are in England; and, in pursuance of this idea, tenants in tail in this state have suffered common recoveries.
    
      Gurley and Isham, contra.
    I. The will of Joshua the first was legally proved and established. The judgments of the court of assistants, both in 1707 and 1709, in express terms, allow and approve of the will, and direct that the disposition of the estate be regulated by it.
    
      It Is said, however, that the devisee did not appeal to the next court, as he was bound by law to do but to the next but one. This, we contend, is wholly immaterial. The court of assistants did take cognisance- of the jap* peal; and their decision has never been, reversed, or set aside. It cannot now be inquired into collaterally. Hush v. Sheldon, 1 Day, 170. Besides, the general assembly, on petition, ordered a rehearing for this very irregularity, among other things; and a second confirmation of the will took place, on such reheating. That the awarding of new trials in the subordinate tribunals Was a power, which the general assembly, even at a later period, had the right to exercise, has been settled, by a decision of the Su/ireme Court of the United States. Calder et Ux. y. Bull et Ux. 3 Dal. 386.
    2. The will in question gave an< estate-tail to the devisee.
    The intention of the testator is the pole-star, by which we are to he guided, in the construction of a will. Lord Kenyon says, “ We almost spell every word in a devise to get at the intentioivof the testator.” In the case of Roe, ex dem. Dodson, v. Grew et ah 2 Wils, 324. Wilmot, Ch. J observed, that cases in the books upon w-ills had no great weight with him, unless they were exactly in the very point: the intention was the great thing which governed him. In this will, the intention of the testator is too obvious to require any remarks to evince it. '
    
    The language of this devise corresponds with the description of an estate-tail in England. The words “ of his body” are not necessary in a will to create an estate-tail; it is sufficient, if the limitation be t* the testator’s seed, or his heirs male, or his fioslerity, or if any words are used which show an intention to restrain the inheritance to the descendants of the devisee. Co. Litt. 9. b. 27. a. 2 Bla. Com. IIS. and note (10), by Christian, The court will supply the words '■ of his body.” Denn, ex dem. Slater, v. Slater, 5 Term Reft. 335.
    Further, in this will there is a limitation over: “ But if it should please God he should die without issue, then to be divided among my daughters,” &c. making an estate-tail, not by construc'ion or implication merely, but technically so. A devise to one, and the heirs of his body, and their heirs for ever. creates an estate-tail, if qualified by the words, in case he shall die without issue. Denn, ex dem. Geering, v. Shenton, Cowfi. 410.
    3. Our statute regarding entail-ments was in affirmance of the common law. It was introduced at the revision In 1784. by the committee of revision, not for the purpose of changing the law, but of sanctioning an unwritten canon, by an explicit legislative provision.
    But it is unnecessary to inquire what the law was be» fore the passing of that act. It was clearly intended to have a retrospective operation. After declaring prospectively, that no estate, either in fee-simple, fee-tail, &c, shall be given, &c. it proceeds to declare, that all estates given in tail shall be and remain ?n absolute estate in fee-simple. Chap fiel v. Brewster, Kirby, 175.
    
      
      
         Vide Stat. Conn, tit. 8, s. I-, and note (1).
    
   By the Court.

The proceedings in the probate of ⅝ the will are conformable to the usage and practice of ‘that period; for the general assembly then exercised ex* ! tensive judicial power, especially in granting new trials, ! And it would be of dangerous consequence to set aside ! such ancient proceedings, because they do not appear to ; be conducted with all the regularity *f modern times.

In the construction of devises, the intent of the devi-sor, collected from the whole devise, is to be pursued, if that intent is consistent with the policy of the law. Though the words “ heir male in fierfietual succession” would comprehend his heirs male generally; yet, when taken in connection with the other words in the devise, that if the devisee has no heir male, then to his daughters, and if no issue, then to the daughters of the devisor, it is manifest, that the devisor intended the heir male of his body begotten; and that his object was to create an estate in fee tail.

Our courts have never adopted the fee conditional at common law, nor the statute of Westminster 2d, called the statute de donis; but from the principle, that the law abhors a perpetuity, they have decided, that a deed or devise, using words proper to create an estate in fee tail, should vest an estate in fee-simple in the issue of the*first donee in tail: And the statute on that subject has been considered to be in affirmance of the common law. *

New trial not to be granted.  