
    Belton Dickert and others vs. A. G. Dickert and George H. Dickert.
    
      Limitation of Estates.
    
    A father, by deed, gave to his daughter M. a tract of land, to have and to hold the same to her and'to her husband, “ during both their natural lives, and after both their decease, the above mentioned land to devolve into the possession of the two eldest male heirs, born of her, the said M.’s body. And, if so it should happen that there would not be two male heirs, the said land to devolve into the possession of the two eldest heirs born of her, the said M.’s body, male or female, but not till the decease of both father and mother.” After the death of M. and her husband, the children, male and female, of her two eldest sons, who were both dead, claimed the land under the limitation to her “two eldest male heirsHeld, that they were not entitled to recover; that if M. took a fee conditional, the descent was confined to males, through males, and females could not take ; and that if the two eldest sons took as purchasers, they took but an estate for life, there being no words of inheritance.
    BEFORE GLOVER, J., AT NEWBERRY, SPRING TERM, 1858.
    Trespass to try title. The following special verdict was rendered by the jury, to wit:
    “We find the following to be tbe facts in tbis case, and submit them as a special verdict on behalf of the jury to the Court:
    “That Peter Diclcert and Mary'Dickert were married on the 22d day of September, 1796 ; that Jacob Dickert, the first child, was born 25th July, 1798; that the deed conveying the tract of land of about two hundred acres, bounded by land's of Levi E. Eallc, Geo. H. Chapman, Summer and others, bears date 25th March, 1799. This deed is from Peter Stock-man, the father of Mary Dickert, to her and her husband, upon the terms and conditions mentioned in said deed — a copy of which is annexed hereto, marked A.; that after the date of the same deed, the following children were born, to wit: JohnO. Dickert, the 25th July, 1801; Hannah Dickert, 9th May, 1803 ; Catharine Dickert, (the wife of John Huff,) 6th May, 1805 ; David Dickert, 6th October, 1808; Elizabeth Dickert, (widow of Julius Harris,) 12th July, 1811; Andrew G-. Dickert, 28th March, 1813; Wilson W. Dickert, 5th October, 1815 ; George H. Dickert, 18th June, 1819 ; and Mary A. Dickert, 10th May, 1821. We further find that Peter Stockman died some time in the spring of the year 1822. That Hannah Dickert died 5th October, 1829, leaving her surviving her husband, Wilkes S. Waters, who was living in the West, when last heard from; that Wilson W. Dickert died 6th August, 1830; that Jacob Dickert died 7th December, 1848; that Daniel Dickert died 11th December, 1848; that Mary Dickert, (the mother, a donee,) died 19th April, 1850; that John 0. Dickert died 23d October, 1850; that Peter Dickert died 4th September, 1854.
    We further find that Jacob Dickert left him surviving, the following children, viz.: Belton Dickert, Claiborne Dickert, David Dickert, Susan Dickert, and Mary Dickert: Susan is the wife of Ephraim Koon, and Mary is the wife of George Croft; that John C. Dickert, had the following children: Julian, (the wife of Marcellus Boyd) who is dead, and has left an infant son, John Boyd, and Caroline Dickert, Aaron Dickert arid Ella Dickert. The children and grandchildren of Jacob Dickert and John 0. Dickert claim the tract described in the declaration, and are the plaintiffs in this action. Andrew G. Dickert and George H. Dickert, the two sons living at the death of Peter Dickert, are in possession of the lands, claiming it, and are defendants in this action.
    "We further find that the following children of Peter Dickert and his wifé, are now living, beside those mentioned above, viz.: Catharine, the wife of John Huff; Elizabeth, who is the widow of Julius'Harris; and Mary Ann Dickert; and the following grandchildren, the children of David Dickert, viz.: Wilson Dickert, Lora Dickert, and Rebecca Dickert.
    “We further find that Peter Stockman, at his death, left him surviving, the following children, viz.: Mary Dickert, the wife of Peter Dickert; George Stockman, who removed to the State of Alabama, and may still be living, and if dead, it is believed his descendants are living in Alabama; and Elizabeth, who intermarried with Solomon Súber — and has left her surviving, the following children, to wit: Ann Ruff Lavinia Ruff, John U. Súber, and Christian H. Súber, and a son, Preston Ellisor, who is a son by her last husband, Thomas Ellisor, who as well as his son is living.
    “We further find that the defendants have had possession of the tract of land from Peter Dickert’s death, 4th September, 1854, up to the date, and that the rent of the land and houses thereon is worth three hundred and sixty dollars, and if the Court should be of the opinion, the plaintiffs should be entitled to recover, we find the tract of land above described and three hundred and sixty dollars damages for the plaintiffs; but if the Court should be of the opinion that the plaintiffs are not entitled to recover, then we find for the defendants.
    THOMAS B. RUTHERFORD, Foreman.”
    His Honor ordered the postea to be delivered to the defendants.
    The plaintiffs appealed on the ground,
    Because his Honor erred in ordering the postea to be delivered to the defendants, who are the two youngest sons of Peter and Mary Dickert, whereas he should have decided that the, title to the land in dispute was a vested interest in the two eldest sons of the said Peter and Mary Dickert, under the description of male heirs, and therefore descended to the plaintiffs as their issue.
    
      Fair, Jones, for appellants.
    
      Summer, contra.
    
      
       COPY OP DEED.
      
        State of South Carolina — Newberry County.
      
      To all to whom these presents shall come, know ye, That I, Peter Stockman, of Newberry County, in the State of South Carolina, planter, for and in consideration of the love, good will and affection, which I have to, and bear towards my loving daughter Mary, (now the wife of Peter Dickert,) of the same place and State aforesaid, have given and granted, and by these presents do freely, clearly, and absolutely give and grant unto the said Mary Dickert, all and singular that plantation or tract of land, containing two hundred acres, originally granted unto Andrew Mayer, the 12th day of February, Anno Domini, 1755, by his Excellency James Glenn, Esq., &e., situate, being and lying in the Pork, between Broad and Saluda Rivers, on a branch of Crim’s Creek, waters of Broad River, as it appears by a delineated plat thereof. To have and to hold the above mentioned two hundred acres of land to her, the said Mary Dickert, and to her husband, Peter Dickert, during both their natural lives, and after both their decease, the above mentioned land to devolve into the possession of the two eldest male heirs born of her, the said Mary Dickert's body. And, if so it should happen that there would not be two male heirs, the said land to devolve into the possession of the two eldest heirs born of her, the said Mary Dickert’s body, male or female, but not till the decease of both father and mother.
      
      
        In ivitness whereof, I, the said Peter Stockman, have hereunto interchangeably set my hand and seal, this twenty-fifth day -of March, in the year of our Lord one thousand seven hundred and ninety-nine, and in the twenty-third of the Independence of the United States of America. Signed, sealed and delivered in presence of us.
      
      PETEE STOCKMAN, [l. s.]
      George Kinard,
      Mathias B. Hart.
      Adam A. L, Lagrowe.
    
   The opinion of the Court was delivered by

Wardlaw, J.

Unless it can be made to appear that the plaintiffs are entitled to recover the land, which is in the possession of the defendants, the defendants must be permitted to retain the advantage of the order which directed the postea to be delivered to them.

The deed mentioned in the special verdict is a very extraordinary one: its like will not probably be presented for consideration, again. Looking to the unskillfulness with which the instrument was drawn, the date, — soon after the rights of primogeniture were abolished in this State, and the intention which various circumstances aliunde incline me to attribute to Peter Stockman, I might assent to the plaintiffs’ position, that the deed was meant to convey a life estate to Mary Dickert and her husband, during their joint lives and the life of the survivor, with remainder in fee to her two firstborn sons^or in default of two sons, to her two first-born children. But I am not permitted to gather the intention of any writing aliunde, and to a deed I cannot render that assistance which common law and our statutes afford to a will. Guided by technical rules, T can take no view which would be favorable to the plaintiffs.

Suppose that finding a life estate in the ancestor with a subsequent limitation to heirs of that ancestor, I should, under the rule in Shelly's case, say that here is a fee conditional in Mary .Deckert, to her and some heirs of her body. The limitation is to the two eldest male heirs. Conceding that eldest means first-lorn, and that the specification of two was confined to the first generation and would not attend the descent of the lands to the heirs of the body, I would still be constrained to say, that the limitation was to heirs male only, and that the descent must be only to males through males, as in a fee-tail male. These plaintiffs could not then recovery for they are male and female, all the heirs of Jacob Dickert and John C. Dickert, both deceased; and it is ground of nonsuit that persons not having right are joined as plaintiffs with those that have right.

But I think that the two eldest male heirs born of her body, was designado personarum, signifying the same as two eldest sons. If the limitation was then, after the life estate, to the eldest sons, the sons would have taken as purchasers, and if words of inheritance had been superadded, would have taken in fee.

But under the supposition that “ male heirs” meant sons, no words of inheritance remain to extend the estate given to them beyond a life estate. Successive life estates would thus be found, the reversion abiding in the grantor, Peter Stock-man, or his heirs. Even if the two first-born sons had vested remainders for life, they are dead, and with each of them ended his estate under the deed. Thus the plaintiffs could take no advantage from establishment of their position, that the two first-born sons of Mary were the persons upon whom the estate was intended to devolve” after “ the decease of both father and mother.”

What is the true construction of the deed — whether the defendants have any, and if any what interest in the land, ■ — what right the heirs of Peter Stockman have, and if they have any, when it may be enjoyed — are questions which we are not required to discuss now, and which we do not design to decide. It is enough to see, as to the Court appears plain, that the present plaintiffs cannot recover the land.

Motion dismissed.

Withers, Whither, Glover, and Muhro, JJ., concurred.

O’Neall, J.

I think the two eldest male heirs, Jacob and John C. were tenants in fee conditional, and that on their death, their sons take by descent, per formam doni.

Motion dismissed.  