
    Julia A. Macumber vs. Marcus W. Bradley.
    A grantor executed a deed, to take effect after bis death, by which, in consideration of love and affection for his daughter A, he conveyed certain real estate to her absolutely, and certain other real estate to her son K.with the following provision as to the latter:—“ to be his property forever, unless he dies without "heirs, and in that case to go to the heirs of H;” the habendum of the deed being as follows:—“ to have and to hold the above granted premises unto them the said grantees, their heirs and assigns, forever, to their own proper use and behoof.” Held that the language of the prior clause was not sufficient to restrict the meaning of the word “ heirs” in the habendum to children or heirs of the body, and that the grantor must be considered as having intended to give a fee simple to 1C, and to limit over upon that estate a remainder to the heirs of H; and that, as no remainder can be limited after a fee simple, the heirs of H took nothing by the deed, and K had an estate which he could alienate absolutely in fee simple.
    H, to "whose heirs the limitation over was made, was the husband of a daughter of the grantor, and not of his blood. Whether a limitation over to his heirs, who were not necessarily of the blood of the grant or, would be sustained by a consideration of love and affection: Quere.
    
    Where a grantor makes a conveyance of his property by deed to take effect after his death, in the place of a disposition of his property by will, such a deed, while in view of the circumstances to be favorably construed to carry out the intent of the grantor, is yet not entitled to an application to it of the rules with regard to devises of property, so as to make valid a limitation in the deed which would be valid in a devise but would not be valid in an ordinary deed.
    Ejectment, to recover possession of two pieces of land. Both parties claimed title to the demanded premises under a certain deed from Elijah Wilmot, the important part of which is as follows :—
    
      To all Sfc.:—
    Know ye that I, Elijah Wilmot, of &c., for the consideration of love, good will and natural affection I have and bear to my daughter, Anna Kinney, do give, grant, bargain and confirm unto the said Anna Kinney, * * * * Also 1 give to her son Reuben Kinney, a piece of land containing about ten acres, [describing it; ] and also I give to the said Reuben another piece of land containing six acres and an half, [describing it;] the two pieces of land I have here given to the said Reuben are to be his property after my decease forever, unless he dies without heirs, and in that case are to go to the heirs of Joseph Hulse, of New Haven in said county ; and the said Anna, his mother, is to have the use of both pieces of land given to the said Reuben, after my decease, till he the said Reuben arrives to lawful age:—To have and to hold the above granted and bargained premises, with the appurtenances thereof, unto them, the. said grantees, their heirs and assigns forever, to them and their own proper use and behoof. The deed also contained the usual covenants of warranty and seizin.
    The deed was executed by the grantor on the 29th of May, 1812, and delivered to his daughter Anna Kinney, who then lived in his house, with instructions to retain it until his death, and then to have it recorded. He died on the 3d of October, 1814, and she placed it on record on the following day.
    Reuben Kinney, named in the deed, died unmarried in 1856. Joseph Hulse, at the time of the execution of the deed, was the husband of Abigail, another daughter of the grantor. They had four children, of whom the plaintiff was *one, all of whom except the plaintiff died unmar- [ *447 3 ried, before the death of Reuben Kinney. Hulse died in 1836. Reuben Kinney entered into possession of both pieces of land on coming of age, and afterwards conveyed them away in fee by warranty deed, and by sundry conveyances they came to Bradley, the defendant.
    The case was tried on the general issue, closed to the court, and reserved for the advice of this court on the above facts stated by the court.
    Harrison, for the plaintiff.
    1. The deed is testamentary in its character. This fact appears upon the face of the deed, and is further shown by the circumstances under which it was executed and delivered.
    2. Although the language of the deed is inartificial, the intent of the grantor as evinced by that language is clear. This intent was, 1st. To retain an estate in the land in question for the grantor’s own life. 2d. To give to Anna his daughter the use of the land from the time of the grantor’s death until Reuben should be of age. 3d. To give Reuben the use of the property from the date of his majority until his death. 4th. Not to give Reuben personally and absolutely an estate in fee, but 5th. To give the fee, upon the death of Reuben without issue, to “ the heirs of Joseph Hulse.” It is obvious from the whole of the grantor’s language taken together, that in the informal parts of the deed he uses the word “ heirs,” not technically, but in the popular sense, as synonymous with the, word “ children.”
    3. The court ought to construe such a deed, especially the words used in the informal parts of it, so as to give effect to the manifest intent of the grantor. 2 Smith’s Lead. Cases, 288 to 297. Bryan v. Bradley, 16 Conn., 474. Barrett v. French, 1 id., 354. Fish v. Sawyer, 11 id., 545. Bridge v. Welling
      ton, 1 Mass., 219. Hamner v. Smith, 22 Ala., 433. 2 Hilliard Ab., 333 et seq.
    
    4. If technicalities are relied upon to defeat this manifest intent, we have a right to insist upon the most astute and subtle application of technical rulés to aid that intent. We [ *448 ] *claim the benefit of every permissible application of those rules for this purpose. 1st. Under a strict application of those rules Reuben has only a life estate. The grant is to Reuben, not to Reuben and his heirs.- 2d. The-grant is not necessarily enlarged by the habendum. The word “ them, the said grantees, their heirs,” &c., in the habendum, apply appropriately only to those persons, previously indicated in the deed, to whom an estate in fee was intended to be given, Anna Kinney and the heirs of 'Joseph Hulse. Those words- are fully satisfied by such an exclusive application of them. As between litigating grantees the rule of construing words most strongly against, the grantor does not apply. 3. If there -are operative words- to pass the whole fee out of the grantor, and Reuben has only a life estate, and a remainder-man is designated, the legal effect is to carry the fee to the remainder-man on termination of the life estate.
    5. Reuben’s estate may perhaps be regarded as an estate'tail ; especially in view of the limitation of the remainder to the heirs of Hulse. Where a testator in the first instance devises land to a person, and his heirs, and afterwards uses language which shows that he employs the term “heirs ” in its x’estricted sense, it makes an estate tail ; as where he provides for his dying without issue. And where an estate is devised over on failure of heirs, and the first' devisee is related to the devisor, the term “ heirs ” is construed to mean “ heirs of the body.” 2 Jar-man on Wills, 236 to 240. 2 Cruise’s Dig., 264. 2 Bla. Com., 164.
    
      Baldwin, for the defendant.
    1. The only consideration expressed in the deed is the love and affection of the grantor for'his daughter Anna, the mother of Reuben, the other grantee. The deed, though delivered to the daughter with directions to retain it till the death of the grantor, and- then to record it, took effect immediately on its delivery, as the deed of the grantor. The deed being founded on no pecuniary consideration,; which, is essential to [ *449 ] the validity *of a deed of bargain and sale under the statutes of uses, and purporting to convey the land in question to “ Reuben her son,” in the same manner as that granted to his “ daughter Anna,” -to be his property after the grantor’s decease, can only operate by force of its covenants, which are immediately operative, to stand seized, in consideration of the love and affection expressed in the deed, to the uses therein specified, for the parties named as grantees and their heirs, who are the only persons that can be regarded as within the consideration by reason of which alone the covenants have force. The heirs of Joseph Hulse are not necessarily of the blood of the grantor, and are not referred to or spoken of as such in the deed. They are therefore to be regarded as strangers to the consideration by virtue of which the covenants in the deed became operative on its delivery. If the deed were, as claimed by the counsel for the plaintiff, intended as a testamentary disposition of the property, it has not the requisite formalities of a will, and can be effective to alienate the title only as a conveyance. Bryan v. Bradley, 16 Conn., 474, 9. As such it constituted, from the time of its delivery, a covenant on the part of the grantor, in consideration of blood, to stand .seized of the premises for the use of Reuben, and his heirs and assigns forever, which, by the principles of the statute of uses, is converted into a legal estate in him, to take effect on the death of the grantor. Stewart v. Stewart, 5 Conn., 317. The deed, in respect to the estate limited to the grantees, is to be construed according to the legal import of the words used by the grantor. The intention of the grantor is ascertainable from no other source than the language he has used. And that intention, so ascertained, is to be made effectual so far only as it is consistent with the rules of law applicable to estates granted by deed. There is in this deed no use declared, except that the grantees are to have and to hold the premises to them, their heirs and assigns forever, and to their own use and behoof. The statute of uses, the principles of which are to be considered as incorporated into and therefore a part of our common law, vests the legal estate, from the time of the conveyance, in the person entitled to the use. Bryan v. Bradley, 16 Conn., 483. And whether the title is by feoffment to *uses, [ *450 ] bargain and sale, or covenant to stand seized, no person can claim a use executed to him, unless he is a party to the deed, or to the consideration, in such a sense that a trust is created by contract which a court of equity would enforce, in which case it becomes a use which the statute executes. This deed created no such trust.
    Since then the deed can only be construed as a conveyance operating, in virtue of the statute of uses, as a covenant to stand seized, on what possible ground can the plaintiff claim a title under it ? The grant is to Reuben, “ tc be his property, after my decease, forever, unless he dies without heirs, and in that case, it is to go to the heirs of Joseph Hulse.” See 1 Swift Dig., 145. The intention clearly was that Reuben should have an estate descendible to his heirs forever. There is nothing to limit the course of descent to any particular description of heirs, as heirs of the body, which would create an estate tail but for the habendum. But the habendum shows that it was the intention of the grantor to use the appropriate words to create an estate in fee simple—“ to the grantee, his heirs and assigns forever, to them and their own proper use and behoof.” Such an estate being granted and intended to be granted to Reuben, the grantor could not, and is therefore not presumed to have intended to abridge it of any of its legal incidents, as of the right of alienation. Mitchinson v. Carter, 8 T. R., 61. In a deed there is no latitude of construction allowed, as in a devise. But even if this were a devise and not a deed, the limitation of an estate to take effect after a general failure of heirs, or even of issue of the body, unless there is something to confine it to dying without issue living at the time of the death, would be void as too remote. Powell on Devises, 426. Fearne Cont. Rem., 322. And, as was said by Lord Mansfield in Goodman v. Goodright, (2 Burr., 878,) “ if it was too remote in its creation, the event can not vary the construction, so that her actually dying without issue can make no difference.” “ A devise may fail of taking effect, (says Powell on Devises, 426,) by reason that the ’ intent of the testator in his will doth not agree with [ *451 ] the rules of law : for such intent *shall be void ; as if a man devise lands to A in fee, and if he die without heirs, that B shall have the land; this devise to B is void, for, as has been shown, one fee simple can not depend on another.” And see Holmes v. Godson, 35 Eng. L. & Eq., 595. It could not for the same reason have effect as a contingent or springing use; and also for another, that such an estate is always defeated by alienation of the feoffee before the contingency arises. 2 Bla. Com., 334. It can not be a remainder in the heirs of Joseph Hulse, for the essence of a remainder is that it is to arise immediately on the termination of the particular-estate by lapse of time or other determinate event, and not in abridgement of it. Whenever the gift is of a fee, there can not be a remainder, though the fee may be a qualified or base fee, or determinable one. The fee is the whole estate ; when once granted there is nothing in the grantor but a possibility or right of reverter, which does not constitute an actual estate. 1 Jar-man on Wills, 792. Martin v. Strachan, 5 T. R., 107, note. 4 Kent. Com., 10, note. All the estate vests in the first grantee notwithstanding the qualification annexed to it. Proprietors of Church v. Grant, 3 Gray, 150. Every devise to a person in derogation of, or in substitution for, a preceding estate in fee simple, is an executory devise, and therefore void.
   H in man, J.

The defendant is in possession of the demanded premises, claiming title thereto under a regular chain of conveyances from Reuben Kinney, one of the grantees in the instrument under which the plaintiff now claims title. It follows, therefore, that if Reuben took such an estate under that instrument that he had power to convey away the fee, the present defendant has it, and so has the right to retain his possession. The instrument itself was a deed, and can therefore only operate as a deed. It ivas said that it was testamentary in character, and some importance seemed to be ascribed to this circumstance. No doubt that, for the purpose of ascertaining the meaning of the grantor by the words used in the instrument, we must take into ^consideration every fact and circum- [ *452 ] stance which appears in it. Hence, it is proper to consider that, although the instrument is a deed, yet it appears on its face to have been a disposition of a portion of the grantor’s property, to take effect at his decease, and was made to his relatives in consideration of love and natural affection. As such, it is entitled to a liberal construction in order to carry out the intention of the grantor. But if any thing more than this is meant, there can be no foundation for it. We can not change the nature of the instrument from a deed to a will, so as to apply to it the rules of law applicable to passing title by devise, because it may be found impossible to carry out fully the intention of the grantor. There was no pecuniary consideration for the deed. It was given as expressed in it, in consideration of the love and good-will and natural affection which the grantor had for his daughter Anna. And as it appears that the other grantee, Reuben, was the son of Anna, he of course comes within the consideration. No question is therefore made as to the validity of the instrument. It is admitted that he took an estate under it. And whether he took it under a law peculiar to ourselves, of allowing freeholds to be granted' to take effect in future, or whether he took it under the statute of uses, is not very important.

Assuming then that Reuben took a life estate, at least, after the death of his grandfather, the question arises whether that was all the estate in the premises which he took; or, rather, whether in fact and in law, he did not take, and was not intended by the grantor to take, the fee. If he took a fee-simple in the land, then, as "by deed nq other estate can be limited over after, a fee simple, it follows that, after the death of the grantor, the whole estate became Vested in Reuben, whose title the defendant has, and consequently the plaintiff, having no title, must fail in her action. This result follows also, irrespective of an important question which would otherwise arise--in the . case, as. to whether, upon a consideration of love and affection, a limitation over to the heirs of Joseph- Hulse, who would not: necessarily be of the blood of the'grantor, Hulse himself not being [ *458 ] so, would be good. Now the *'grantor ,in. this deed has used apt words-to convey to-Reuben an-entire unqualified fee simple in this property-. It is true that in the same instrument he has used words which show that,An the event of Reuben’s dying■ without heirs, he-intended the estate should go to the heirs of Joseph Hulse. But. unless.the previous grant to Reuben is to be so qualified by what is sai,d in respect to the heirs of Hulse; as to limit» his estate to an estate- for life only, or, at most, to an estate to him and the heirs of his body, thus making it an estate tail, the limitation over to the. heirs of Hulse must fail; being contrary to the rule of law that no, remainder can be limited- over after the grant of -an estate in fee simple. That can undoubtedly be done by what is called an. executory devise, but can not be accomplished by deed.. The question here is, as to the grantor’s meaning as it is expressed it the deed. His words are, “ I give to Reuben Kinney a piece of land, &c., to be his property after my decease, forever, unless he dies without heirs, and in that case it is to go to the heirs of Joseph Hulse.” And then the habendum is, “ To have and to-hold the above granted and bargained- premises, with the appurtenances, unto them, the said grantees, their heirs and assigns forever, to them and their own proper use and behoof.” Now this is the ordinary language of our deeds where a fee simple is intended to be conveyed, and, aside from what is said in respect to the heirs of Joseph Hulse, would unquestionably have carried the whole estate to Reuben; and there is certainly nothing in the language of the grant itself to show any intention to limit or qualify Reuben’s estate. He grants it to him foreyer, and the habendum, limiting it to him and his heirs forever, appears to be as clear an expression of intention that his heirs, should take, as that he should. It was said that by the word “heirs” the' grantor meant the children or heirs of the body of the grantee. We can only say that there is nothing to show this except the simple fact that he attempted to limit, the. estate to the. heirs of Hulse, in case Reuben died without heirs, and we do not think this circumstance sufficient for the purpose, since to give the word this meaning is contrary to its plain and obvious import, and would also render it necessary to incorporate *into the deed additional words not found there, [ *454 ] in order to give the deed the meaning claimed for it. Besides, we think it as probable, not to say more so, that while he intended to give Reuben an absolute fee simple in the property, he also intended, iñ case he died without heirs generally, to limit it over to the heirs of Hulse, which, as we have said, can not be done in this form.

We advise the superior court, therefore, that the defendant is entitled to judgment.

In this opinion the other judges concurred.

Judgment for defendant advised.  