
    John Davis versus William Hayden and Others.
    An estate is conveyed by indenture to A and his heirs, to the use of B, the wife of C, for life, remainder to C for life, remainder to “the joint heirs of the body of B and C, by them lawfully begotten; ” and the estate so limited- to B is declared to be in trust, that, in case of the insolvency of C, it should not be liable for his debts. It was hoi den that this was an estate in special fee tail in B and C, and that their eldest son was entitled after their death, exclusively of their other children.
    Nothing passes by the conveyance of land, of which the grantor is only heir apparent
    This was a writ of entry sur disseisin, and was submitted to the decision of the Court upon the following agreement of the parties: — “ In the year 1765, one John Vassall, being seised of the- demanded premises, in his demesne as of fee, did, by an indenture of two parts, made.by and between him and one Thomas Oliver, convey the said premises to * said Oliver, in manner following, viz.: — The said indenture is therein said to be made by and with the said Oliver as trustee of said Vassall’s sister, Ruth Davis, and witnesseth that the said Vassall, in consideration of five shillings paid to him, by said Oliver in behalf of the said Ruth, and also in consideration of the natural affection which he bore to his said sister, did give the said premises unto the said Oliver and his heirs; to have and to hold the same unto the said Oliver, to the several uses, intents, and purposes, in said indenture expressed, and to none other; which said uses, intents, and purposes, were, in said indenture, expressed in these words, to wit: — “ First, to the sole, separate, and proper use and behoof of my said sister Ruth, wife of the said Edward Davis, of Boston aforesaid, merchant, for and during the term of her natural life; and, after the determination of the estate of said Ruth, to the use and behoof of the said Edward Davis, for and during the term of his natural life; and after the determination of the estate of the said Edward Davis, to the use and behoof of the joint heirs of the body of the said Ruth and Edward, by them lawfully begotten. And as for and touching the said estate, herein before limited to the said Ruth, it is hereby declared that the said estate is so limited to her as aforesaid in trust, that in case of the failure of the said Edward in business, or insolvency, whereby his estate, or effects, of any kind, shall be liable for the payment of his debts, the said hereby granted premises shall be exempt from demands of the said creditors, and be reserved by my said trustee herein before mentioned to the sole, separate use and behoof of the said Ruth, during the said natural timé of her life, as aforesaid. In witness whereof,” dec.
    
      
      “ Upon the execution of said indenture, the said Edward Davis, and Ruth, his wife, entered into the demanded premises, and continued to occupy them until the year 1776, when the said Ruth died; and the said Edward * continued from that time to occupy the same until the 16th of April, ±811, on which day he died, intestate, leaving a widow and three children born of her, and now living, the said Oliver being then living.”
    “ The said Edward and Ruth had several children living at her decease, here named in the order of their respective births, viz.: Elizabeth, Hannah, Lucy, (wife of said Hayden,) Charlotte, Frances, John, (the demandant,) Edward, and William, deceased, intestate, and without wife or issue.”
    “ The said Edward, last mentioned, died in the year 1798, intestate, and without wife or issue.”
    “ The said Samuel Prince, the younger, and the said Edward Prince, who are named in the writ, are the only children and heirs of the said Frances, who intermarried with Samuel Prince, the elder, and died in the year 1799.”
    “ The said Joseph Fosdick, the younger, named in the writ, is the only child and heir of the said Charlotte, who intermarried with Joseph Fosdick, the elder, and died in the year 1799.”
    
      “ The said Huey is the wife of said William Hayden, named in the writ as one of the tenants.” 0
    “ The said Hannah is also one of the tenants named in the writ.”
    
      “ The said Elizabeth has duly released and conveyed to the demandant all her title and interest, if any, in and to the demanded premises.”
    “ On the 15th of October, 1795, the demandant executed and delivered to his brother Edward, then living, a deed purporting to convey the remainder in fee, after the decease of the said Edward Davis, the elder, therein said to be tenant for life, of one undivided seventh part of the said demanded premises. The said deed was made bona fide, and for a valuable consideration; the demandant then supposing that, by force of the indenture before mentioned, his said father then had an estate for life in the premises, * with remainder in fee to all the children of himself and the said Ruth Davis.”
    
    
      “ This is a writ of entry, in which the demandant claims the whole of the premises mentioned in said indenture, alleging a seisin in himself, and a disseisin by the tenants, and in the count sets forth his title specially, as tenant in tail by force of the said indenture. And it is agreed that,, on the death of the said Edward Davis, the elder, the demandant entered and became seised as the law requires.”
    “ If the Court should be of opinion that the said indenture created an estate tail, as alleged in the declaration, the tenants agree to be defaulted, and that judgment shall be rendered for the demand-ant for possession'of the demanded premises, or of such part thereof as the Court shall consider him as now entitled to recover with costs.”
    “ But if the Court shall be of opinion that the said indenture did not create an estate tail, as alleged, and that the premises, after the decease of the said Edward and Ruth, came to all their children, either in tail or in fee, by force of said indenture, then the tenants agree to be defaulted, and that judgment shall be rendered for the demandant for possession of such part of said premises, if any, as the Court shall consider him now entitled to recover, without costs; and the demandant to pay the tenants the amount of their legal costs in this suit. — And if, in the latter case, the Court should be of opinion that the demandant is not entitled to recover any part of said premises, then. he agrees to become nonsuit, and that judgment be rendered for the tenants for costs. — And it is further agreed that, in case the tenants shall be entitled to any portion of the demanded premises, no costs shall be recovered against them, but they shall in such case recover their costs.”
    The cause was argued at the last March term, in this county, by Dexter and Jackson for the demandant, and by *Amory, Prescott, and Blake, for the tenants; after which the action stood over to this term for advise ment, and now judgment was pronounced to the following effect: —
   By the Court.

The question in this action arises on the con , struction of the indenture between John Vassall and Thomas Oli ver, therein named, as the trustee of his sister Ruth Davis, the substance of which is recited in the case agreed by the parties. B appears that Vassall, being seised in fee of the demanded premises, conveyed them to Oliver and his heirs, habendum to the use of Ruth Davis during her natural life, and after her death to the use of her husband, Edward Davis, during his natural life, and after his death to the use and behoof of the joint heirs of the body of the said Ruth and Edv'ard, by them lawfully begotten. And the estate, “ so limited.to tne said Ruth,” is declared to be in trust, that in case oi the failure of her husband in business, or his insolvency, the premises are to be exempt from the demands of his creditors, and to be reserved, by the said trustee, to the separate use of the said Ruih for her life.

The demandant is the eldest son of the said Edward and Ruth, who are both deceased, the said Edward having survived his wife.

The counsel for. the demandant have insisted that the case was within the rule established in Shelly’s case, and that this was an estate tail in Edward and Ruth Davis; and that the demandant, being their eldest son, is entitled, as heir in tail, to the whole of the demanded premises; while the counsel for the tenants have argued that the rule in Shelly’s case does not apply, because the estate for the life of Edward and Ruth Davis was a trust estate, and the estate limited to the heirs is not an equitable, but a legal estate.

The endeavor of courts of law, in modem times, has been to give a construction, to deeds as well as wills, conformed to the intent of the parties, as far as such intent is discernible, and is consistent with 'the rules of law. This Court *has always inclined to construe an estate in trust to be an estate to uses, for this reason,—that we have no Court of Chancery to compel the performance of trusts,

In the indenture in the case at bar, the word trust is only used in the latter clause, which contains the provision that Oliver might interfere, and secure the profits to Ruth Davis, the wife. And it is not necessary now to consider the effect of this provision. Both estates may be considered as legal estates; and if there was a trust estate in Oliver, it was determined by the death of Ruth Davis On that event, a legal estate vested in Edward Davis, for term of life, with remainder to the joint heirs of the body of Ruth, begotten by Edward. Then the rule in Shelly’s case comes in, and creates an estate in special tail, as the demandant has alleged; and he is entitled to judgment, unless his conveyance of one seventh part to his brother Edward affects his right. But at the time of that conveyance, the demandant had nothing in the premises; he was but heir apparent; and nothing passed by his deed,

According to the agreement of the parties, the tenants are to be called, and judgment is to be entered, that the demandant recove! possession of the demanded premises, with costs.

Tenants defaulted 
      
       1 Co. 104.
     
      
      
         [See Revised Statutes, c. 81, § 8, where jurisdiction in equity is given in all cases of trusts. — Ed ]
     
      
      
         [See Eastman vs. Trull, Middlesex Supreme Judicial Court. 1841. — Ed ]
     
      
       [ Quære.—Under the laws of Massachusetts, as they were at the time of the making of this will, or as they have been at any time since, relative to descents, could the eldest son in this case be alone entitled, as heir, in special tail ? An estate tail in England, where it originated, descends to a certain designated class of heirs, according to the will of the testator, and the English laws of descent. Why, then, should it not here descend to a like class, according to the will of the testator, and our laws of descent? If, in England, an estate in tail may descend to the eldest male heir, because he inherits according to the laws of descent there, why, on the same principle, should it not here descend to the male heirs generally, according to our laws of descent? — See Robinson on Gavelkind, 119.— Weeks vs. Carvel, Noy, Rep. 106.—Ed.]
     