
    Tate v. Tally.
    [Thursday, April 28th, 1803.]
    Wills — Devise—Construction —Esiate=Tail,—Devise of lands to A. and if the said A. should die not having any lawful heir of his body, then the land to go to B.; this is an estate-tail in A.
    In ejectment brought by John Tate against Debdul Tally, for a tract of land in Hanover county, the parties agreed a case, which stated, that Robert Tate being seised of the lands in the declaration mentioned, made his last will on the 11th of May, in the year 1777, whereby he devised the said lands in the words following : 1 ‘I will and bequeath to my son Jesse Tate, all the land I hold on the south and east side of the above mentioned road, bounded on the south side by John Tate and James Martin, on the west by Francis Tate, on the north and east by Richard Richardson, containing about 205 acres more or less. Now if the said Jesse Tate should die, not having any lawful heir of his body, then the said land to go to my youngest son John Tate.” That, -after the death of the testator, the said Jesse Tate entered and was seised, and being so seised conveyed to a person, under whom the defendant claims. That the said Jesse Tate died about the year ——, having never had any lawful issue. That the plaintiff is the son of the testator, *and the person, described in the said devise by the words my youngest son John Tate. The District Court gave judgment for the defendant, and the plaintiff appealed to this Court.
    Wickham, for the appellant.
    The question is, whether the devise over to John Tate be good? In one point, the case is nearly the same with that of Hill v. Burrow, the other day; which was fully argued, and the cases then cited, particularly Porter v. Bradley, 3 T. R. 143, clearly shew how the point would now be decided in England. Relying, therefore, upon those cases, and the arguments made use of upon them, I pass to a second point which occurs in the present case: namely, that the devise here, was since the act of 1776, [9 Stat. Larg. 226,] for docking entails: And, therefore, I contend, whatever may be the English rulé in such cases, that the limitation over, in the case before the Court, is clearly good: Eor, the act of 1776, has changed the whole system, and subverted all the ancient reasoning on the subject, in England, estates-tail are implied for the benefit of the issue, and to prevent their being defeated b.y the limitation over. But, that reason does not hold with us at this day; for, as estates-tail cannot now be created, real and personal estate stand upon the same footing in respect to limitations over, after preceding estates are given. But, the constant rule with respect to limitations of personals, is, to pursue the particular intention of the testator as expressed in the will, and not to adopt he notion of the general intent, as was done with regard to devises of land. This distinction is very well illustrated in Fonbl. Treat, on Eq. [2 vol. 93, 2 Am. ed.]. And the reason is obvious, namely, that it would counteract instead of supporting the general intent of the testator in the case of personal estate; because, that could not be entailed, but the first devise would give the whole property; so that, the limitation over, which in that case would be within the general intent of the testator, would be entirely defeated; Dunn v. Bray, 1 Call, 343, where the *President, in delivering the resolution of the Court, expressly states it so. This reasoning applies emphatically to real estate since the act of 1776; because, as the first devise will now give the whole estate in lands also, the object of the testator will be defeated, by the implication; and, therefore, in support of the intention, the implication will be rejected: Consequently, the Court will now pursue the course with regard to devises of personals, in which the Judges have been astute in finding out distinctions in order to maintain the limitation over, [Goodtitle v. Pegden,] 2 T. R. 720; where the words are scarcely so strong as in our case; and yet the limitation over was supported. Eet us suppose that the Eegislature, instead of docking entails, had declared that personal estate might also be entailed, then devises of personal estate would have been subject to all the rules with regard to entails of lands: And, the converse of this doctrine ought now to prevail with respect to real estate since the act for docking entails was made. Before the act of 1776, as entails were lawful, there was a fair presumption that the testator intended an. entail; but, it is otherwise now; because, that would be to presume he intended to create an estate, contrary to law; which the Court will not do: especially, as the effect would be to presume it, for the sake of destroying the intention of the testator, instead of supporting it. The act of of 1776, leaves the construction with regard to express estates-tail to remain upon the same foundation as before, but it is not correct to say that the same rule should apply to implied estates-tail, for there is no reason for making the implication now. The rule has been found so inconvenient, even in England, that the Judges there have struggled to get rid of it; and, therefore, have been constantly narrowing, but never have enlarged it.
    *Randolph, contra.
    The devise in this case would have created an estate-tail before 1776, clearly; and, therefore, it gives a fee, since. The testator did not intend an executory devise, but a remainder. Eor, the first devise is to Jesse Tate for life, without any words of perpetuity. [Goodright, dem.; Baker v. Stocker,] 5 T. R. 13; [Doe, dem. ; Spearing v. Buckner,] 6 T. R. 612. Therefore, it must be construed an entail in Jesse, or his issue would have been defeated; and this in favor of the eldest son, who was already provided for. The word heir is equivalent to heirs. 1 Fearne on Rem. 181; and consequently it is the same as if the devise had been to Jesse Tate for life, and if he dies without having any lawful heirs of his body, that is, without issue, then to John Tate in fee; which would have given an entail, clearly. 3 T. R. 146; 7 T. R. S9S; which, indeed, is proved by Mr. Wickham’s own case- of Dunn v. Bray, 1 Call, 343. This doctrine is right on principle, and is agreeable to the rule in Shelly’s Case; for, a man may be said to die without issue, whenever his issue fails. Eee’s Case, cited in Forth v. Chapman, 1 P. Wms. 664. It is not correct to say, that the decisions of the Courts are to change with circumstances; for, when they have been of long standing, they become rules of property, and ought to be considered as binding. 1 Wash. 202. There always has been a settled distinction in the construction when the words relate to real, or to personal property. In the first they create an entail, in the latter a good ex-ecutory devise. [Denn v. Shenton,] Cowp. 411; Forth v. Chapman, 1 P. Wms. 667; [Denn v. Slater,] 5 T. R. 338. And, although the opinion of Lord Kenyon in Porter v. Bradley, 3 T. R. 146, is cited to shew that he was against any differences between them, and reprobated the distinction taken by Lord Macclesfield in Forth v. Chapman, yet it appears that he afterwards approved of it in the case of Dainty v. Daintry, 6 T. R. 314. And, indeed, it was expressly recognised by this Court in Dunn v. Bray, 1 Call, 338. There is no ground for a difference in the construction before and after the act of 1776. For, that act was *merely designed to turn the estate-tail into a fee, but to leave the construction, as to what words would create an estate-tail, as it was before. Carter v. Tyler, 1 Call, 186. In which Mr. Washington, who scarcely ever used a weak argument, expressly urged there was no difference; and the Court appears to have thought so. Indeed, the bias of the Court has been, not to disturb old rules of interpretation, but on the contrary, to maintain them. Minnis v. Aylett, 1 Wash. 302. If the statute de bonis was repealed in England, this would be considered a conditional fee at common law there. It is said, that the English Judges have been striving to get rid of the rule, but that rather proves it cannot be departed from. Nor is it unimportant, that the Legislature by the act of 1792, R. C. 16, plainly shew their idea to be that the usual construction is to take place relative to estates-tail; for, they say, that every estate in lands, “which since hath been limited, or hereafter shall be limited, so as that the law aforetime was such an estate would have been an estate-tail,” shall now be deemed an estate in fee simple.
    Wickham, in reply.
    The word estate, may be taken from other parts of the will, and annexed to the devise to Jesse Tate, so as to create a fee instead of a life-estate. Davies v. Miller, 1 Call, 127. The case of Dunn v. Bray, does not prove that a distinction between real and personal estate should not be made, but the contrary. For, it shews that it was formerly made for the sake of the issue only. The act of 1792 means limitations in tail, expressly, and not by implication. Besides, it was subsequent to this will; and, therefore, proves nothing. The case of Carter v. Tyler, was not a case of construction, but merely as to the effect of the act upon an acknowledged entail.
    Cur. adv. vult.
    
      
       Wills — Construction — Estate-Tail. — As to what words in a will create an estate-tail, see the principal case cited in Eldridge v. Fisher, 1 Hen. & M. 562; See v. Craigen, 8 Leigh 452; Hood v. Haden, 82 Va. 597; Tidball v. Lupton, 1 Rand. 204; Goodrich v. Harding, 3 Rand. 282; Tinsley v. Jones, 13 Gratt. 298. The principal case is cited in Bells v. Gillespie, 5 Rand. 307. See foot-notes to Tinsley v. Jones, 13 Gratt. 289; Callis v. Kemp, 11 Gratt. 78.
      Same — Same—Same.—In construing what is or is not an estate-tail, since the act of 1776 abolishing estates-tail, the court should be guided by the former laws and rules of construction upon this subj ect, prevailing before that act, and, therefore, what would have created an estate-tail before that act, will, in like manner, do so since that statute. Hence, what would have been construed to create an estate-tail by implication before the statute, will be so construed since its passage, notwithstanding the reason of those rules of construction have ceased. In support of this proposition, see the principal case cited with approval in Jiggetts v. Davis, 1 Leigh 423, 425; Bells v. Gillespie, 5 Rand. 283, 300, 311; Smith v. Chapman, 1 Hen. & M. 300; Tinsley v. Jones, 13 Gratt. 296. See the principal case cited in this connection in Goodrich v. Harding, 3 Rand. 282; Tidball v. Lupton, 1 Rand. 204.
      Executory Limitation — “Dying without Issue.” — A limitation over in remainder to A, after the death of B without issue, is void, as being too remote.’ For this proposition, the principal case is cited and approved in Wilkins v. Taylor, 5 Call 156; Newby v. Blakey, 3 Hen. & M. 60.
    
   ROANE, Judge.

This is an action of ejectment for a tract of land, and the question depends on *the construction of the will of Robert Tate, of the 11th of May, 1777.

The particular clause of that will, which gives rise to it, is in the following words: “I will and bequeath to my son Jesse Tate all the land I hold, &c. (the premises in question;) now, if the said Jesse Tate should die,_ not having any lawful heir of his body, then the said land to go to my youngest son John Tate.” And the question is, what estate the devisee, Jesse Tate, took in the premises in question.

The doctrines of the law are common to this case, and to the case of Hill v. Burrow, just decided, except so far as a distinction may arise from the different phraseology of, and circumstances appearing in the wills, and from the consideration which was much pressed upon us, that the will before us was made posterior to the act of 1776, docking entails.

This being the case, I shall, to save time, refer to my opinion just delivered in that case; and especially to such parts of it as go to fortify the case of Forth v. Chapman, and to shew, that even in the case of chattels, it is not the general intention solely, which authorises restrictive construction relative to that subject, but a particular intention inferable from the will and case itself, coming in aid of the supposed general intention. Mr. Wickham’s great argument was, that since the act of 1776, prohibiting entails, there is the same general intention as relative to both kinds of property, and that real property, since that time, stands on a common ground with personal. If this were so, it still is not enough, unless he shews also, that under this will, in the case of personal property, a restrictive construction would have been adopted.

This, I apprehend, would not have been the case; but I shall not waste time to enquire, whether it *would or would not, thinking it best for the public good to go at once into the great question ; and being equally clear upon that question, that it Is quite immaterial, whether the will was prior to the act of 1776, or since.

The Legislative construction of the act of 1792 accords with my own opinion on the same subject. It is entitled to respect, but would not bind this Court to adopt the same construction, contrary to their own judgment in relation to prior cases.

The act of 1776 declares, “that any person who now hath or hereafter may have any estate in fee tail general or special in any land, &c. in possession, &c. or who now is, or hereafter may be entitled to any such estate-tail, in reversion or remainder, &c. whether such estate-tail hath been or shall be created by deed, will, act of Assembly, or by any other ways or means, shall, from henceforth, or from the commencement of such estate-tail, stand seised, &c. to such lands, &c. so held or to be held, &c. in full and absolute fee simple, in like manner as if such deed, will, &c. had conveyed the same to him in fee simple: Any words, limitations or conditions in the said deed, will, &c. to the contrary notwithstanding.”

There can be but one possible construction of this act, and that is, that it converts estates-tail into fee simple, but refers to and reserves all laws then in force, for the decision of the question, whether in future as well as in past cases, an estate-tail would, (but for the interposition of the act,) have passed or not? If such reference is not made to the laws, what could the Legislature mean, after annihilating estates-tail, by pointing the act also against estates-tail, which persons might hereafter have, and which they might hereafter be entitled to? Why else direct it against estates-tail, which shall be created by deed, will, &c. ? why else refer to the commencement of a future estate-tail? *why else use the expression relative thereto, to be held, &c.?

Upon any other construction, the act is a complete felo de se, as to future cases, in respect of all those emphatical expressions. It is no novelty, even for Courts to refer to the lex temporis, for the construction of instruments and contracts. The Legislature has gone upon the same principle in the present instance; but, when the reserved law has had its operation in relation to the construction of estate-tail, the act of 1776 steps in and enlarges the interest into a fee simple.

The present attempt of the appellant is to take from the tenant and his heirs, by construction and analogy, that interest which it is the particular object of this act to secure to them, and which it is provided that no express limitation by the party in the deed or will itself shall affect or frustrate.

I am, therefore, for affirming the judgment.

FLEMING, Judge.

There can be no doubt, as well upon general principles as upon the authority of the case of Hill v. Burrow, just decided, that the words of this will would have created an estate-tail in Jesse Tate, prior to .the act of 1776. The question, therefore, is, whether its being made subsequent to that act, has altered the case? And I think not: For, the whole effect of that statute is to .convert estates-tail into estates in fee simple; .and not .to alter the meaning of words, or destroy the established rules of construction. My opinion, consequently, is,' that the judgment of the District Court ought to be affirmed.

LYONS, Judge.

The case is not so strong as even that of Hilt v. Burrow.. For, here the first devisee would have had only an estate for life, unless he had taken an estate-tail. The judgment is right; and is to be affirmed.  