
    ALEXANDER S. GRAY against JOSHUA WINKLER.
    A limitation by will, before the act of 1781, to one upon the contingency of his or her arriving at a particular age, or of'his or her being married, was Held to manifest an intention that the deviseo should take an estate in fee, in case he or she did arrive at that age or married; and where such provisions were contained in a deed that had not words of inheritance, but was referred to in a will published a few days afterwards, in which the several provisions of the deed wore ratified, and confirmed, it was Held that the two instruments combined conveyed an estate in fee.
    Cause removed from the Court of Equity of Wilkes county.
    The bill was filed praying for an injunction to restrain tho collection of a judgment rendered in tho County Court of Wilkes, for. about $1,867. Tho hill alleges that this judgment. was founded upon two notes given by the plaintiff to the defendant’s testator, Penell, for land lying in the county of "Wilkes, which the said testator covenanted to convey in fee to the plaintiff on the payment of the purchase-money ; that the defendant’s testator had not an estate in fee in the premises, but only an estate for the life of Rebecca Wellborn, an aged female, and that, a recovery for the breach of the covenant would be unavailing to him, for that the executor has not assets of the estate of Penell to compensate him in-damages, in case he should recover at law for such breach. In this Court it was referred to Mr. Freeman, as a commissioner to enquire whether the defendant was able to make a good and sufficient title in fee, who reported the following facts as established before him : Ilngh Montgomery, by deed dated 13th of December, 1779, conveyed the lands, of which that in question is apart, to James Kerr, David Nesbit, and John Brown. The following is a copy of this deed so far as it is material to this ease. “That for and in consideration of the love and affection which the said Hugh hath for his two daughters, Rebecca and Rachel, and to the intent to make some provision for their education and maintenance, and for their support and advancement in the wot Id, and for settling and assuring the premises hereafter mentioned, and for the sum of live shillings to him in hand, now paid by the said trustees, James Iverr, David Nesbit, and John Brown, he, the said Hugh Montgomery hath given and granted, fully and absolutely, unto the said trustees, all that tract of land of him, the said Hugh Montgomery known by the name of the Lower Moravian tract, containing d,930 acres,- situated in Wilkes county, on the Yadkin river, to have and to hold all the said plantation's, lands, hereditaments, and premises hereby given or granted, or intended to "be, unto the said trustees, James Kerr, David Nesbit, and John Brown, their executors, administrators, or assigns forever ; upon the trustees hereinafter mentioned: In trust that the said trustees, James Kerr, David Nesbit, and John Brown, their executors, administrators, and assigns, shall permit and suffer the said. Hugh Montgomery and his assigns, to hold-ánd enjoy all tlie lands and premises hereby before given, and granted for so long a time as said Hugh Montgomery shall live, and immediately after his death, in trust to, and forEebecca and Eachel, children of the said Hugh Montgomery, and such other child or children as she, (his wife Catharine,) may happen to have, until such time as they, or tho survivor of them, respectively, shall attain their respective ages'of twenty-one years, or he married, whichever that first happens; and upon tho further trust, that the said trustees, or the survivor of them, his executors, or administrations shall, and do, ■well and truly apply and dispose of the interest and profits arising from the hereby granted lands and premises to and for the education, maintenance, clothing, and benefit of them, the said children, until they attain the respective ages of twenty-one years, or are married, and upon their an.d every of their attaining their respective ages .of tweiityT one years, or being married, then, upon this further trust, that they, the said trustees, shall and do in their discretion, deliver, distribute, and pay a just and proportionable share, and dividend of the hereby granted lands and premises, and the increase whereof, unto such children respectively, as shall attain to such age of twenty-one years or be married as aforesaid, having always especial regard to the number of children of the said Hugh Montgomery, then living, by the said Catharine; but in case neither the saidEebecca, nor Eachel, nor any other child of the said Hugh Montgomery to be hereafter born of the body of the said Catharine, shall happen to live to attain such age of twenty-one years or bo married, then upon this further special trust, that the trustees, or survivor of them, &c.” with a limitation over in fee to several others, one of whom was the heir of the grantor.
    Three days after the execution of the foregoing instrument, to wit, on the 16th of December, 1779, the said Hugh Montgomery made and published his last will and testament, which was properly attested and probated, and was in proper form to pass both real and personal property ; in which said •will, among other matters, are contained the following provision, viz.: “And whereas on the 13th of this instant, December, I did give and grant, by two certain instruments in writing, called deeds of gift, a considerable part of my real and-personal estate, to certain trustees, my said executors, in trust, for myself for life, with limitations over as by the said deeds will respectively more particularly appear, and at the time of tho execution1 thereof, I did give the said trustees, full and free lively of seisin of all the premises therein given and granted, now I, the said testator, Hugh Montgomery, do hereby fully and absolutely ratify and confirm the said two deeds, of severally and all and singular the premises thereby given to the trustees therein named, upon the trusts, to the uses, and for the intents and purposes therein particularly expressed and declared, of and concerning the same, and I do hereby expressly charge and require my said executors to pay the utmost respect to the two deeds of gift severally, and to all and singular, the premises therein contained, and not to consider a single tittle of the promises thereby given and granted, as any part or parcel of my estate, real or personal, whatever, notwithstanding one part of such premises may happen to be in my custody or possession at the time of my death. And with regard to all the rest, residue, and remainder of my estate,, both real and personal, of whatever nature or kind soever, or wheresoever, not hereby before specifically given, devised, bequeathed or mentioned, it is my earnest will and desire, and I do hereby will, ordain and authorize my said executors,- and the survivors of them, to grant, bargain, sell and dispose of the same in fee simple or otherwise in such manner and form, and in such lots and quantities as to them may-seem fit, &c.” The persons above named as trustees, to wit, James Kerr, David Nesbit, and John Brown, were appointed executors to this will, and it is believed that they all accepted. John Brown was the last surviving of these executors, and ho-died in the year 1812 leaving a last will and testament, duly authenticated and probated to pass real and personal -estate, wherein he appointed his son, John Brown, Junior, his exeentoi’2 and appointed him trustee to. fulfil, and carry out the-trusts and purposes of the deed of trust of 13th December, 177$, and devised to him all the estates, interests, &c., necessary to perform such trusts.
    Hugh Montgomery acquired the land in question by purchase from cne Cossart, and being indebted lor a part of the purchase money in the year 1778, he made a mortgage of the said lands to one Michael Graff\ agent of the said Cossart, for a term of five hundred years. Montgomery died in 1779, and the unexpired portion of the term by a succession of legally executed assignments, became vested in one Christian Lewis lienzein, who instituted proceedings in the Court of Equity of Iredell county, to enforce the payment of the mortgage debt; to which proceeding John Brown, the surviving trustee and executor was made a party, and he, having died during the pendency thereof, his exeentor and devisee, John Brown, the younger, was made a party in his stead. A decree was rendered in the said Court of Equity, requiring the said John Brown, the younger, as the representative of Hugh Montgomery7, to complete the payment of the remainder of the purchase money secured by the mortgage deed and after this was done, to convey the premises toIiebeeca (nowMrs. Wellborn,) and Bachel, (now Mrs. Stokes,) as trustee, appointed for that purpose, in fee simple.
    Benzoin also died, having made his will, (duly executed to pass real and personal property,) wherein he devised and bequeathed the said unexpired term of 500 years to one John G. Cunow, and appointed the said Cunow7, and Jacob Vanfleck, Samuel Stoltz, Andrew Benado, and Frederick C. Meining, bis executors, who all qualified.
    Cunow received from the said John Brown the remainder of the purchase money, and he, and the other executors of Benzoin (made a deed in fee reciting the decree and the payment of the money for the unexpired portion of the term of 500 years) to Rebecca and Rachel, (now7 Mrs .Wellborn and Mrs. Stokes,). One object of the proceeding in Eqnity7 above mentioned, was to confirm to the assignees and devisees of Hugh Montgomery, .tho title to the lands conveyed to him by Cossart, and accordingly William Lenoir and several others, claiming the premises by subsequent grants from the State, were made parties, so were Mrs. Wellborn and Mrs. Stokes with their hue-bands. A part of the decree in this case was, that Lenoir and the other subsequent- grantees, should surrender and reconvey the lands they were in possession of, also that the legatee, Ounow, and the executors of Benzoin should convey the terra (as above stated was done,) and that John Brown, the younger, being appointed trustee for that purpose in said decrees, should make a deed in fee to Mrs. WellborneandMrs. Stokes. In pursuance of this decree, and in his character of trustee, and as devisee and executor of John Brown, his father, lie, the said John Brown, Junior, in 1829, having paid the remainder of the purchase money, by a deed properly executed for that purpose, conveyed to Rebecca Wellborn and Rachel Stokes, the legal estate in fee simple of all the premises mentioned in the deed, and will of Hugh Montgomery, embracing the land, whereof the plaintiff'complains that lie cannot get a good title.
    • The conveyances from Mrs. Wellborn and her husband to Joshua Penell are admitted to be in due form and valid, and the contest, therefore, alone concerns the title of Mrs. Wellborn.
    The Commissioner reported that “The defendent cannot make a good and sufficient title to the plaintiff for the lands mentioned in the pleadings.” To which-the defendent excepted upon the ground that the report was not sustained by the facts reported by him.
    The canse came up for hearing upon the exception.
    
      Boy den for the plaintiff,
    
      Mitchell for the defendant.
   Pearson, C. J.

The report of the master, and the exception filed by the counsel of the defendant, are too general to be of any assistance to the Court.

It appears by the pleadings, that the alleged defect in the title arises from the want of words of limitation, necessary to pass a fee (the word “ heirs” being omitted) in the deed, executed by Montgomery to Brown and others, dated the 13th of December, 1779.

It is conceded that this deed does not, of itself, pass an estate in fee to the cetuis qua trust, “ Rachael and Rebecca,” because, however clear the intention may be, the law requires the word “ heirs” to be used, in order to create a fee simple estate by a deed.

The law is otherwise in respect to a devise, for although, both in a deed and a devise an indefinite, limitation of land passes only a life-estate, in the latter, the technical word is not required, and a fee simple estate may bo created without it, provided the intention is shown by the terms used and the dispositions made in the instrument.

¥e assume that the declaration of the trust, in the deed under consideration, would, if in a devise, give to “ Rachel and Rebecca” a fee simple. This position is taken without reference to our act of 1784, which has no application, for Montgomery died in 1780, and is fully sustained by the cases referred to by Mr. Jarman, in his edition of “Powell on Devises,” vol. 2, part 2, ch. 19, “ Estates enlarged to a fee by implication” (22 Law Lib. 202). The learned writer has collated the cases with so much ability, and deduced the principles so clearly as to make it unnecessary, for our purpose, to do more than set out a few passages. He states it as settled, “ that a devise of land without words of limitation, confers on the devisee an estate for life only but adds, “ the rule has always been received with disfavor, as subversive of the intention of testators, who generally suppose that a devise in indefinite terms, includes all their interest in the property, as in case of personalty ; hence, courts of law have evinced an anxiety to fasten upon any circumstances furnishing á .ground for taking cases out of its operation, and hence, has arisen the several classes of cases, in which such devises have been enlarged to a fee by implication : First, “ a condition or direction imposed on a devisee to pay a sum of money, enlarges a devise without words of limitation, to an estate in fee simple.” Second. “ Devises without words of limitation are enlarged to a fee by implication, where lands are devised to a person, with a limitation over in case he die under twenty-one j or it seems, under any other cuje. In these cases, the first devisee takes a fee, on the presumption that, as the property is limited over, in the event of his dying under the prescribed age, it must be intended that the inheritance shall belong absolutely to him in the alternate event. The contrary supposition would impute to the' testator a very extraordinary intention.” “The rule is not confined to cases in which the limitation over is to the devisor’s heirs; nor.it is to be observed, to those in which it confers afee.” “In the preceding cases, the event on which the devise over was limited to arise, was the death of the first devisee under twenty-one, the age at which he, if living, would be competent to dispose of the land ; and this circumstance has been more or less relied on in favor of the construction adopted in most of the cases. But, it seems that the rule extends to cases to which this argument does not apply, the event being death, under another ago. Thus in Elsmere v. Coleman, 6 Price, 179, the devise was to II. II. and her assigns for life, and after her decease, to such child or children, as should be born of the body of the said II. II., as should be living at her decease, and in case she should happen to have no child or children, who should bo living at her decease, or such child or children should happen to die before he, she or they should attain the age of eighteen years, or be married, then over to W. in fee, it was held that a daughter took a fee on her marriage, by the effect of the devise over.”

In our case, all the strongest points are presented. The limitation over is in the event, that the taker of the first estate should die before arriving at the ago of twenty-one, or marriage ; the estate limited over is a fee, and one of the persons to whom it is limited, is the heir of the devisor / so, there can be no doubt that the principle would apply, if the declarations of trust had been in a devise instead of a deed, and it rests on a clear manifestation-of an intention to give the daughters a fee, provided they married, or lived to- the age of twenty-one.

Three days after the execution of the deed, i. e., on the 16th of December, 1770, Montgomery executed his will; and we think it follows from the position assumed above, that the will had the effect to pass the reversion which was left in the hands of Montgomery, for the want of proper words in the deed to' carry his intention into effect, so as to enlarge the estate of Rachel and Rebecca,.and give them a fee by the combined effect of the two instruments. The reference to the deed which is made in the will, was for the purpose of ratifying and making good the trusts which the devisor intended to make in the deed, and in order to effect this purpose, the declaration of trust must be considered as reiterated in the will. This is clear, from the words,. “ I do hereby fully and absolutely ratify and confirm the two deeds of gift, and all and singular, the premises thereby given.” “I do expressly charge my executors to pay the utmost respect and attention to the two deeds and all and singular the provisions therein contained, and not to consider a singular tittle of the premises thereby giren^ as any part or parcel of my estate, real or personal, dec.” The words are confused and inartificial, but the substance is: “I now intend to give effect to the estates which I intended to create by the deed,” consequently, it is only necessary to determine that he intended to give Raehel and Rebecca estates in fee if they arrived at the age of twenty-one or married, which,, with the assistance of Mr. Jarman, and the cases cited by him has been done.

It is unnecessary to incumber the case by a reference to the “ term of five hundred years,” further than to say, it merged after the assignment to Mrs. Stokes and Wellborn, as they acquired the legal estate in fee simple, by the conveyance of the assignee of the surviving trustee.

The exception is sustained; and it will he declared that the defendant can make a good title in fee simple to the land-mentioned in the pleadings.

Per Curiam, Decree accordingly.  