
    Kay vs. Connor
    The word heirs is always a word of limitation, unless controlled in its meaning by the use of other words in the instrument. So the word children is always a word of pur* chase, unless controlled by the use of others, and when each is used in separate clauses without reference to the other, it would be presumed that the technical meaning of the words were understood, and that they Were used in reference to such meaning.
    Zacliariah Gent sold by bill of sale, slaves, to wit, Frankey and Albert, to Lane, and delivered them to him. Lane sold and delivered them to Kay, and Kay sold and delivered them to Connor. Kay, in the bill of sale to Connor, warranted title. Charles Gent and brothers, sons of Zachariah Gent, took the slaves out of the possession of Connor, on the ground of title vested in them, by a deed to them by their grandfather, which had a clause as follows, “One negro girl named Frankey, and all her future increase, I give and bequeath to him during his life, in trust, for his heirs after his death.” Zachariah Gent was now dead. Connor sued Kay on covenant in the criminal and commercial court at Memphis, and in his declaration averred that the defendant, Kay, broken his covenant in this, that he sold the slaves to him, and warranted the title when he had no title to the said slaves;' but that the said Charles Gent and others were the true owners thereof. To this the defendant pleaded; 1st, that he had not broken his covenant. 2nd, that plaintiff was not deprived of said slaves by the true owners, to which there was replication; an issue thereupon was submitted to a jury under the direction of judge King, at the March term, 1848. „
    The judge charged the jury as follows: “that this case did not fall within the rule in Shelly’s case, that by the deedfrom Charles Gent to Zachariah Gent, there was a valid remainder in trust to the heirs of Zachariah Gent to the negroes in question, and that Zachariah could make ho transfer of them beyond the term of his own life. And this being the fact, the covenant in the bill of sale from defendant to plaintiff, was broken so soon as made, and the jury must assess the plaintiff’s damages— that in such a case as the present, the measure of damages would be the value of the slaves, or the price paid for them at the time of the sale to plaintiff by defendant, with interest on such sum to this time.”
    The jury returned a verdict for plaintiff for $1250. There was judgment accordingly. From this defendant appealed.
    
      S. Jarnagin, for the plaintiff in error.
    It is insisted that this case falls within the rule in Shelly’s case.' The rule is stated in 1 Co. Rep. 104, and in Preston on Estates, vol'l, page 263; 9th Yer. 231. The rule applies in every case where there is a limitation for life, with a remainder, in the same instrument to heirs. 4 Kent, 228; 4 M. and Selwyn;3 Bos. and Puller, 620; 2 Bligh’s Pari. Cases.
    The rule in Shelly’s case is a rule of the common law, not one of construction, but of property, and in every case to which, or in which it has been applied, the intention was to give a life estate to the first taker, and then to heirs, as a line or class, and when such intention is manifest, the rule pf law interposes, and gives the whole to the first taker.
    In the case before the court, there is no doubt about intention. It was to give a life estate, with a remainder to them as a class, and to tie up the property in the same family; the law will not permit this intention to be carried out.
    The rule has been applied in niuch stronger cases than this, 4 M. & Selwyn, 362; Robznson\s. Robinson, 3 Bro. Pari. Cases, 180; Dow vs. Cooper, 1 East; 229. In these eases there was a limitation for life, and no longer, with remainder to heirs _ of the body. In Jones vs. Morgan, 1 Bro. Ch. Cases, 206, 2 Williams, 471, 19 Yesey, 170, 2 Atkinson, 247, 5 Term Rep. 299, there was an estate for life, without impeachment for waste, and subject to jointure with limitations to trustees to preserve contingent remainders, yet the rule applied, and the first taker held an absolute estate.
    In fact, not a case can be found where the limitation ever was to heirs, or heirs of the body, in which the application of the rule in Shelly’s case was doubted; and when it was to issue, unless there were superadded words of limitation, the rule applied. 2 P. Will. 472; 2 Wilson, 322; 5 Term Rep, 299; 3 East, 548; 4 Term Rep. 83; 1 East, 229; 8 Term Rep. 5.
    The act of 1784, ch. 22, sec. 5, comes in aid of the rule in Shelly’s case; both are rules, not of intention or construction, but of property, and have relation not to the wishes of the donor, but to the interests of the community. Both tend to control individual purposes for the attainment of a public object, namely, the unlocking of property, and the subjecting it to the uses of society; 9 Yerger, 234.
    
      D. M. Currin, for the defendant in error.
    It is contended by appellant, that the rule in Shelly’s case is-applicable to this. Such cannot be the law.
    That rule, as stated by Mr. Preston, in his “Treatise upon Estates,” and as laid down by this court in the case of Polk vs. Fanis, (so much relied upon by appellant, and by the way, the only case to which this court has applied the rule,) is thus analyzed by that author. See Preston on Estates, page 205:)
    1st. There shall be an estate of freehold.
    2nd. That there shall be a limitation to the heirs, or heirs of the body of the person taking that estate; by that, or some such substituted name, and not the heirs as meaning or explained to be, sons, children, &c.
    3rd. That these heirs shall be named to take as a class or denomination of persons.
    4th. In succession, from generation to generation.
    5th. By way of remainder; or, at least, so that the estate to arise from the limitation to the heirs, and the estate of freehold in the ancestor, shall owe their effect t© the same, deed, will or writing.
    And lastly. That the several limitations should give interests of the same quality*' both legal, or both equitable.
    Now, it is only necessary to state the rule, as thus analyzed, to show that it is wholly inapplicable to the case at bar.
    1. If, according to the opinion of the court below, the interests are of different quality, the one being legal, the other equitable — this is decisive of the question, at once, the case being without the rule as it'is laid down under the last head of Mr. Preston’s analysis.
    
      ; 2. It is not considered very material in this case, whether the deed of gift should be held to give a legal life-estate, with an equitable remainder over, or not, lor the language employed — -“Give and make over to him in trust, for the benefit of all the children he may have,” (as it is expressed in the beginning of the instrument,) and “Give and bequeath to him, during his life, in trust for his heirs, after his death, (as it is expressed in the conclusion,) it is thought clearly indicates an intent, on the part of the donor, tó give merely a life-estate, (if so much,) to Zachariah, with remainder over — which intent will prevail, unless it contravene some established rule of law.
    3. The common doctrine usually asserted in urging the application of the rule — that the intention of the donor shall not be allowed to change the law; or that the particular intent must yield to the general intent, it is not proposed to controvert; yet this rule of construction, as stated in the later English decisions is merely, that technical words, or words of known legal import, must have their legal effect, even though inconsistent words be used, unless those inconsistent words are of such a nature as to 'make it perfectly clear that the donor did not mean to use the technical words in their proper sense. 6 B. and Ad. 27th vol. E. C. Rep. 620, 640; Jetton vs. Wright, 2 Bligh, 57. Nor does this rule of construction differ, materially, from that elsewhere laid down, and in numerous cases; perhaps in none more forcibly than in those decided by this court; for after all, the rule in Shelly’s case is used to apply only to those cases which are literally and technically within it; and when circumstances take any case out of the letter of the rule, the question becomes purely one of intention. This is stated as the result of the English cases upon the subject, in 4 Kent, 225. See also, to same point, Fearne on Remainders, 149, 210; Loving vs. Hunter, 8 Yerg.; the Tennessee cases generally, and particularly the case of Hughes vs. Cannon, 2 Humph. — the last case, perhaps, decided by this court, in which the rule in question was involved.
    The rule had never been favored by this court. It is not remembered that it has ever applied it to but one case, Polk vs. Farris, 9 Yerg., which was a case literally and technically within it. Thus, in our earliest case involving it, Lewis vs. Claiborne, 5 Yerg. 369, it was held, that even the words “die without issue,” although words of limitation, according to the English rules of construction are not necessarily so here; that the reason for the adoption of the rule in England, does not exist here, on account of the changes made in our own law, and (by implication) that, therefore, the rule itself should cease.
    In Loving against Hunter, this court refers to the origin of' the rule; its inapplicability to our institutions; and determined that shall be applied to no case not literally and technically within it. The case of Polk against Farris, afterwards decided, was so, as before remarked. In the case of Hughes against Cannon, (perhaps the last adjudication) upon that question, the intent to give a life-estate merely (say the court) is manifested by the use of the terms “deliver”’ and “lend:” are not the words in the present case — “Make over in trust” — “Give .and bequeath in trust,” &c~, even more indicative of an intent to limit the first taker to a life-estate?
    It may here be remarked, that the whole instrument, in the connection of its meaning and in strict grammatical construction, consists of but one sentence; and if the various and disconnected clauses of a deed may be used as mutually explanatory of, and qualifying each other, in order to arrive at its true and perfect meaning and intent — a rale of legal construction which no one will controvert — how much more may reference be had to the different members and words of the same sentence, for the same purpose?
    The whole substance of the instrument, then, is, that Charles Gent gives to Zaehariah, during his life, the property therein mentioned, in trust, for the benefit of his (Zachariah’s) children, after his death. Such too, is the legal effect; for according to the very definition of the rule as stated under the .second head of Mr. Preston’s analysis, above quoted, the term “heirs” occurring in the concluding portion of the instrument — (if allowed to have any. independent meaning at all, under a rule of construction hereinafter stated,) is explained to be children.
    4. But in addition to the circumstance already adverted to, that the donor, in conveying the interests, had used such operative words “make over for the benefit of” — “give in trust for,” &c., as clearly to indicate' his intention to bestow upon the first taker, a life-estate only, it is contended that, in remainder, he used terms which, literally and technically, are not words of limitation, but are words of purchase; so that his intention, as manifest from other parts of the instrument, not only may, but must prevail. The terms used in this case, to designate the remaindermen, are the word “children” which occurs in the beginning of the instrument, and the word “heirs” which occurs at the conclusion. Now, the term children is eminently and always a word of purchase. No one, it is presumed, will contend that it is ever a word of limitation; and it is believed that no case can be found in which it had been so decided, amongst the numerous adjudications that have been had in reference to the rule in Shelly’s case. On this point, it would seem to. be idle to quote authorities. However, reference is made to case of Buffer vs. Bradford, 2 Atk. 221; Crook vs. Brooking, 2 Yern. 107; Fearne on Remainders, 149; Preston on Estates, 359; 1 Roper on Leg., 70,71, 72, and the cases generally, as' summed up in the three latter authorities. So strictly, according to Roper, is the word “children” held to be a term of purchase, muring t.o the benefit only of .the particular person or persons of whom it is construed to be descriptive* that it is not allowed to extend even to grand-children, but in a few excepted cases of wills, where,by a forced construction, it is allowed to embrace them, in order to carry out the presumed intention of the testator. In the case of Loving vs. Hunter, 8 Yerger, 4, determined by this court, the term “children’’ did not occur in the gift; but, the court holding that, by implication, children were meant, decided that the legatees took by purchase, and not by limitation.
    How much stronger is this case, where nothing is left to inference, but the term itself is used. But here it may be objected that, in the concluding part of the gift in this case, the word “heirs” occurs. To this it may be replied, that the term heirs is, in itself, comparatively indifferent, being construed sometimes as a word of limitation, and sometimes as a word of purchase; sometimes as a nomen collectivum of a class who are to take in indefinite succession; and sometimes, as a mere descriptio personae or personarum; and that its effect in any particular case, must depend upon the context of the instrument in which it may have been employed, and upon its connection with othef words which may strengthen or qualify it. This is believed to be the result of all the authorities, which it is deemed unnecessary here to cite, particularly.
    General reference is therefore made to Fearne on Rem., 149, 152, 180, et passim; Preston on Estates, 294, 368, 376, 380, et passim; 4 Kent, 220, 221; Law Library (Ancest. & Heir) 136-7,' and cases there collected; Loving vs. Hunter, 8 Yerg., and the Tennessee cases involving this question, generally.
    It may here be remarked, that in most of the cases' particularly referred to by Fearne and Preston, and from a summary of which the principle above stated is. deduced, the words “heirs” and “heirs of the body” are found in association with, the word “children.”
    There is not, then, necessarily, any conflict between the first and latter branch of this gift, inasmuch as the terms employed, respectively, may consist with each other, and have the same meaning; and, by the rule of construction before referred to, the general intent of a party to a deed is to be inferred from the whole context, and allparts ofit reconciled, if itmay be.
    5. It is a rule of construction equally well established,.that if there be two clauses,- parts or terms in a deed, repugnant the one to the other, and which may not be reconciled, the former shall be received, and the latter rejected. The reverse is the rule in regard to wills; and this distinction arises from the different datare of the two instruments; the first deed and the last will being most available in law. Broom’s Legal Maxims, 50 Law Library, 252; Shepherd’s Touchstone, 174; Bac. Abrí:, Title, Grant. Thus where’ an estate of inheritance in lands, or an absolute interest in personalty is gi^en by will, and subsequent passages thereof ‘clearly show that the devisee or legatee was intended to take a life-estate only, he is restricted to that. The reverse is the case with deeds. Legal Maxims, (Brooms’,) 252.
    The gift in this case, then, is to be construed as if the word “children” was used; for the word “heirs” subsequently occurring must either be held consistent with that first employed, or must be rejected, altogether.
    The word “heirs,” therefore, as it occurs, in this gift, is either inoperative, or is “explained” to mean children. It would be idle, as before remarked, at this day, to cite authorities to show that the latter term is eminently and exclusively a word of purchase.
    It may be added here, however, that in Hughes against Cannon, the words “heirs” and “heirs of the body” occur most frequently in the deed, and that, too, in the first part of it; yet this court held, in that case, that these words were restrained and qualified by the subsequently occurring words, “children.”
   Turley, J.

delivered the opinion of the court.

The question presented for our consideration in this case, is whether the word heirs, as .used in a deed of gift, from' Charles Gent to his son Zachariah Gent is to be construed under the rule in Shelly’s case, as a word of limitation or a word of purchase; it was holden by the circuit judge, to be a word of purchase, and from this judgment the defendant appeals to this court.

The clause, in the deed of gift, in which the word is used, is as follows: “One negro boy called Jacob, about seven or eight years old, and one negro girl going on 6 years, called Frankey, and all her future increase,“I give to him (viz: Zachariah Gent,) during his life in trust for his heirs after his death.” To give any efficient meaning to these words, they must be construed as if they had read; “I give to him for life with remainder to his heirs after his death.” The words heirs is a technical word, and is always construed to be a word of limitation and not of purchase, unless there be other control-ing words, clearly showing that a contrary meaning was intended by its use. This it is said,/.is the case here, but, we cannot, upon legal principles, think so. There is another clause in the deed by which a tract of land is given to him in the words following: “In consideration of the good will and affection, I bear towards my son Zachariah Gent, I do give and make over to him, in trust, for the benefit of all the children that he may have, one tract of land,” &c.: now in. this clause, the word children is used, which is also a technical word and is always construed to be a word of purchase, unless it be so controlled by other words used so as to show that it was intended as a word of limitation. It is argued that by the use of the word children in the first clause of the deed it is fairly to be inferred, that the donor when he used the word heirs in the second meant children. This inference, is not le-gitiraate; it would be as fair to argue, that<by the use of the word heirs, in the second clause, he meant hpirs, when he used the word children in the first. But the legal inference to be drawn from the use of these different words in two clauses of the deed, is that the donor knew their legal meaning and used them accordingly, for why should he vary them? and this inference is strengthened by the manner of using them: in the first clause the gift'is to all the children that he may have, shewing a disposition to provide for future children, and that in the second clause the gift is to heirs, generally, shewing no disposition to provide for children but to keep the property from descending otherwise than in the limitation.

We are therefore constrained upon legal grounds of construction to hold that the words heirs as used' in the second cláuse of this deed is a word of limitation, and not a word of purchase, and that the circuit judge erred in holding that the rule in Shelly’s case is not applicable to it.

Judgment reversed and case remanded.  