
    James Boatwright and others vs. Christiana Faust and others.
    ¡Previous to the act of 1824, a devise of lands containing no words of perpetuity carried only a life estate.
    A subsequent act. cannot affect the will of a testator who died before the act was passed.
    BurrillFaust by his will devised as follows: “I give my two children Uriah and Saliy, the tract of land whéreon I now live. I give Sally 140 acres to he laid off at the upper end of the tract adjoining Jasper Faust’s land, by a straight line from the river.” “ I give my son Uriah all my other lands.” Uriah Faust died intestate and unmarried. James Boatwright and Elizabeth his wife, and John Glover and Mary his wife, who are both daughters of Bur-rill Faust, sued for partition of the lands devised to Uriah Foust between and among the heirs of Bnrril! Faust. stating that a life estate was only devised to Uriah Faust. The defendants demurred and the demurrer was sustained by Mr. Justice Waties. The plaintiff appealed and moved to reverse the d< cisión -u eon the ground that a life estate only was devised to Uriah Faust.
    DeSaussnre, for ihe appeal,
    
    
      cited the case of Hall vs. Goodwyn, 2 Nott& M‘Cord, 383, as having settled the law.
    
      Preston, contra.
    The old Court of Equity had uniformly held that words of perpetuity or inheritance in a devise of lands were not absolutely necessary to convey a fee simple; Braiisford vs. Howard, 2nd DeSaussure’s Repts. 291; Frazer vs. Hamilton, Do, 576; Whaley vs. Jenkins 3d Do. 80; Clark vs. Meeker, Do. 174; Waring vs. Middleton, Do. 264. The same principle was more recently ruled after, a very elaborate argument in the case of Mrs. Clements, in Charleston, which has not been reported. The constitutional Court in the ease of Hall vs. Goodwyn, 2nd Nott & M'Cord, 384, established a different rule. Both Courts however, concur in the principle that the manifest intention of the testator is to govern.
    To reconcile these contradictory decisions, the Legislature passed the act of 1824, declaring that- every gift of land by devise, shall be construed a gift in fee simple.” He considered this act as bearing upon the question in two ways; 1st. As .adding authority to the decision of the Court of Equity, by the concurrence of the Legislature, and, 2ndly. As inducing an apparent propriety for deciding a question now taken up, ríe novo, in conformity with w’hat must beiherrleof decision'hereafter. The question should be regarded as not having been judicially settled, so that if the rule in Hall and Goodwyn should prevail and be applied to this case, it will be a solitary, unconnected case, having no relation to any thing that had gone before it or can by possibility come after it. In ibis will, where the testator derives a life estate, hé uses the words i give during her life,” shewing that he understood the word give to convey a'fee simple, and that, he thought it necessary to make an express limitation where he intended any thing short of it. He uses thé sáme word give where it is, clear that he intends a fee simple conditional-. He also uses* the words heirs instead of children, under circumstances in which there is.no doubt the Court of Equity would substitute the latter for the former word.- . The will was obviously the production of a very ignorant mán. ■
    Words of perpetuity-were by no means so necessary in a will as'in a deed. 1st Robts. on Wills, 406, note. — ,
    The English construction, as laid doW'ii and reprobated by Lord Mansfield in 2nd,Doug. 763, is founded upon puré feudal principles, to which our political institutions and our statute of distributions are in direct hostility.— it operated and was -intended to operate as a restriction, ,not, to be sure, upon the power, but upon the practice oí disposing of estate? in derogation of the rights o'f the heir at law. Our .laws promote the distribution of estates, and our rules of construction in conformity with them, should not lean towards the heirs at law and against the devisee, but rather in favor of the devisee.
   Curia per

Nott, J.

The motion in this case must be granted. There is no principle of law better.settled than that previous tp our late act of Assembly upon the subject, a devise of lands containing no words of perpetuity carried only a life estate. No member of this Comí ever entertained a different opinion. Technical words are not necessary. Therefore, where an intention tb pass a fee’ is manifest, that" inténtion will be carried into effect by whatever words it may be expressed. In the case of Hall and, Goodwyn, the Court differed about the construction of the will, hut not about the rule-of law* In the eases quoted from I)e Saussure’s reports, the Court of Equity appears to have gone great lengths in behalf of devisees, but the Judges always profess to be governed by the intention of the testator. There are no words in this will from which an intention to give a fee can be inferred.

- By the act of 1824, it is declared that every gift of land by devise shall be construed a gift in fee simple.— .'But that act cannot effect the will now in question, as it was passed since the execution of the will, and even since the death of the testator. It was not the object of the Legislature to reconcile the conflicting decisions on the question but to change the law. The act therefore can' only have a prospective operation. The decision must be reversed.

All the Court concurred. Judgment reversed.  