
    Hall versus Leonard et al.
    
    
      A grant of land to the heirs of A. B., who is living, is void. The deed of A. B., who is in actual possession, referring to such grant, conveys all the title he has.
    This was a writ of entry sur disseisin, in which the demandant counted upon his own seisin within thirty years and a disseisin by the tenants.
    At the trial, which was upon the general issue, before Putnam J., the demandant gave in evidence a deed from Ephraim Leonard, the father of the tenants, to Ebenezer Hall, the father of the demandant, dated in 1803, conveying all his right in a tract of land in Sheffield containing about fifty-nine acres, “ being the same tract of land which was deeded by Medad Huggins to his (Leonard’s) heirs, so expressed in two deeds from said Huggins to them, as will more fully appear by the records, &c., reference thereto being had.” This was the land demanded in the writ. Before and at the time of making the deed, Ephraim Leonard occupied the land, and about ten or twelve years ago Ebenezer Hall entered into it, claiming title. Ebenezer Hall died in 1820, leaving seven children and heirs, of whom Noah Hall the demandant is one ; and in June of the same year his estate was distributed, and the land in question was assigned to the demandant. The tenants in 1820, after the assignment, occupied part of the land, by the permission of the demandant, upon shares, they allowing the demand-ant part of the crops for the rent. In the spring of 1821, the demandant sued the tenants for the land, and they agreed to give up the possession to him, if he would pay the cost of his writ; but they afterwards refused to do it, and gave the demandant notice, that, if he held the land, he must hold it by the law.
    The tenants offered in evidence a copy of a deed, dated ir 1797, from Medad Huggins “ to the heirs of Ephraim Leon ard ” ; which was rejected. Also an original deed of Huggins “ to the heirs of Ephraim Leonard,” dated in 1802 ; which was rejected as void for uncertainty.
    The tenants contended, that the deed of Leonard to Hall could not operate, as it had reference to the deeds of Huggins, . which were to the heirs of Leonard ; and also because it was a release only, and not a deed of bargain and sale ; but the judge ruled, that as Leonard was in possession when he made the deed, all his estate, whatever it might be, passed to the grantee or releasee.
    The tenants then contended, that, after Ebenezer Hall entered, they" disseised him, and that he was at the time of his death disseised; so that nothing but the right to the land descended to his heirs, and the assignment to the demandant was void. The demandant contended, that Ebenezer Hall died se-ised ; and that if he did not, yet that the demandant having entered before this action was brought, and the tenants having occupied under him after the death of his father, he was entitled to recover the whole, or, at any rate, one undivided seventh part of the demanded premises. The tenants denied that position. Evidence was offered on both sides in relation to Ebenezer Hall’s dying seised, which the parties contended respectively should be considered as conclusive ; but it was held to be evidence only tending to prove the fact of his dying seised or disseised.
    The jury found a verdict for the demandant.
    The tenants moved for a new trial, for the misdirections of the judge, and because the verdict, upon the point of Ebenezeir Hall’s being seised at his death, was against the evidence.
    Mills, for the tenants.
    The deed to the heirs of Leonard ought to have been received in evidence. It is admitted, that in some of the older authorities it is laid down that' such a deed is void for uncertainty ; because nemo est hares viventis; Perk. § 52 ; but this is a technical rule, and, at the present day, the Court will look to the intention of the parties, if it can be ascertained. By the words “ heirs of Ephraim Leonard,” who was then alive, were meant his children. In England, while the father is living, the oldest son is usually called the heir ; Marwood v. Darrel, Cas. Temp. Hardw. 94; and here, where no preference is given to the oldest son, all the children are designated in the same way. It was the intention of the deed, that Huggins should be divested of his right to the land, and he was divested ; but the land never passed to Ephraim Leon-ard, and he never had any title or claim except so far as it is implied by his making a deed of release. A valuable consideration was paid, and the tenants should be permitted to show by extrinsic evidence that they were grantees in the deed. In a devise, the law is well settled, that it may be proved, by evidence dehors the will, who is intended as the devisee 
      James v. Richardson, 2 Lev. 232; Marwood v. Darrel, before cited; Powell on Dev. 345 et seq.; Bac. Abr. Grant, C.; Vin. Abr. Grant, A. 4; Bradwin v. Harpur, Amb. 374; Beaumont v. Fell, 2 P. Wms. 140; Thomas v. Stevens, 4 Johns Ch. Rep. 607. There is no reason why the intention of the parties should not be regarded in a deed, as much as in a will. The danger of perjury is no greater in one case than in the other, and the intention of the grantor may be ascertained as easily as that of the testator. This Court, and others in our country, as well as the courts in England, have gone aside from the ancient strictness of the common law in regard to forms, and have even departed from principles of the old law, in order to give effect to contracts, and to do justice. Pray v. Peirce, 7 Mass. Rep. 381; Conner v. Shepherd, 15 Mass. Rep. 164; Webb v. Townsend, ante 21; Pigot's case, 11 Co. 27; Smith v. Crooker, 5 Mass. Rep. 538; Webster v. Woodford, 3 Day, 90; Badger v. Phinney, 15 Mass. Rep. 349.
    The question whether the verdict was against evidence was also argued. The point, as to the deed of Leonard to Hall being a release, was given up.
    
      Dwight and Sheldon, for the demandant,
    to show that the deed “ to the heirs of Ephraim Leonard was void, relied on Co. Lit. 24 b, and Harg. note 145; Bac. Abr. Grant, C. 
      As to the objection made at the trial, that if the deeds from Huggins to the heirs of Leonard were void, the deed of Leonard to Hall was also void, because it refers to them, it was answered, that the description in the last deed, of the premises conveyed, was sufficient without the reference. Worthington v. Hylyer, 4 Mass. Rep. 285.
    
      
       In Sheppard’s Touchstone, it is said, “ If a devise be to the heirs of I S., I. S. being living, this devise is void.” Upon which Mr. Preston remarks ; “ The law is now settled, that such a devise, or a devise to the heirs of the body, may be good as an executory devise. It amounts to a devise to the heirs, when there shall be any. The objection formerly taken was, that the limitation was to the heirs lanquam. in esse, and was void, since there was not any person to answer that description. But now it i understood, that the testator must have known that A. was living, and that he intended to suspend the operation of the devise till the death of A., and consequently till the description of heirs should be fulfilled. ’ Preston’s Shep. Touchstone, 415.—Reporter
      
    
   The opinion of the Court was delivered at May term 1823, by

Wilde J.

The tenants moved for a new trial, for a supposed misdirection of the judge, and because they say that the verdict, as to the seisin of Ebenezer Hall, is against evidence. The tenants, at the trial, offered in evidence the deed of one Medad Huggins to the heirs of Ephraim Leonard, which was rejected as void for uncertainty ; and the principal question is, whether this deed was properly rejected.

It is laid down in Perkins, § 52, that a grant to the heirs of a person in being is void, as there are no persons in esse, who can take under that description. This doctrine is recognized in Bac. Abr. Grant, C.; Com. Dig. Grant, B. 1.

It is essential to the validity of a grant, that the parties be named in the deed, or plainly designated, so as to distinguish them from all others. If they are so distinguished, the grant would be good without any name at all, and a mistake in the name in such case would not vitiate.

A grant, therefore, to Henry Earl of Pembroke, where his name is Robert, is good ; or if a grant be made to A. and bis wife, without naming her by the name of baptism, yet she shall take ; for being called the wife of A. she is sufficiently designated. So, if a grant be made to a father and his son, he having but one son, it is good ; but if the father have several sons, or if a grant be made to a man’s cousin, these are void for uncertainty.

The question then is, whether a grant to a man’s heirs is sufficiently certain.

The difficulty is, to ascertain the intention of the grantor. Supposing we may understand that children were intended, are after-born children to be included, or those only who were in esse at the time of the grant ? Was it meant that the grant should take effect immediately, or at the death of the father ? Suppose there were no children then surviving, would the brothers anc^ sisters take We have no certain means of ascertainihg the grantor’s intention in these particulars ; it is all uncertain, and there is nothing in the deed .to clear away the uncertainty.

There seems to be no case of a deed in which the uncertainty has been supplied by paroi testimony. The intent must be gathered from the deed itself. «

As to wills, the rules of construction are less strict. The intent of the testator is to govern, if it be not repugnant to the rules of law. “ A devise,” says Blackstone, “ is to be most favorably expounded, to pursue if possible the will of the devisor, who for want of advice or learning may have omitted the legal and proper phrases. And therefore many times the law dispenses with the want of words in devises, that are absolutely requisite in all other instruments. Thus, a fee may be conveyed without words of inheritance, and an estate tail without words of procreation. By a will, also, an estate may pass by mere implication, without any express words to direct its course : ” as in cross remainders and in many other instances. And although paroi proof shall not be admitted to explain a will, i as to expound it contrary to the import of the words, yet when the words will bear it, a paroi averment may be admitted. As, for instance, to ascertain the person, but not to alter the estate. Such being the law, it is not necessary to notice particularly the cases cited by the tenants’ counsel relating to the construction of devises. No case has been found to support a grant to a man’s heirs, he being living at the time of the grant.

Another objection made by the tenants’ counsel relates to the deed from Ephraim Leonard to Ebenezer Hall, which they contend could not operate, inasmuch as it referred to the deeds of Huggins,’ which conveyed no estate to said Leonard. He however was in actual possession, and his deed conveyed to Hall all the title he had, which is sufficient in the present action.

Whether Ebenezer Hall died seised or not was properly left to the jury as a question of fact. The tenants or some of them were in possession, but whether claiming to hold t as their own, or occupying by permission of Hall, appears doubtfui. While in possession, one of the tenants proposed to purchase of Hall, and after his death the tenants occupied under the demandant, to whom the premises had before been assigned. Ebenezer Hall did. not yield the possession ; he at least disputed it with the tenants ; for it appears he turned his cattle upon the land, and if they were turned out by the tenants, that was a trespass, but not necessarily an ouster or disseisin. There was certainly competent evidence for the jury to find the fact of seisin of Ebenezer Hall at his death, which would make the assignment good, and give a seisin to the demandant. This being found by the jury, the demandant must recover, he having the right of possession.

Motion for a new trial overruled. 
      
       See Bacon v. Fitch., 1 Root, 81.
     