
    *Carter v. Tyler and Others.
    [Tuesday, November 14, 1797.]
    Entails — Construction ot Statute Docking. — By the act of Oct. 1776, for docking entails, all remainders, as well contingent as vested, are utterly barred, whether the entail be created before or after passing of the act.
    Same — Same.—Nor will the Court, in order to avoid this effect, construe that to be an executory devise, which, before, would have been, held to be a contingent remainder.
    In an ejectment for 1000 acres of land in the County of Prince William, the jury found, that John Champe was, in his lifetime, seised, in .fee simple, of sundry tracts of land, and of the lands in the declaration mentioned, and thereof died seised in fee, on the first day of March, 1763, having duly made his last will and testament, bearing date the tenth day of December, 1759, whereby he devised as follows: l‘My will' is that my son William Champe have all my lands in King George County, next below Poplar Swamp, together with my old mill, &c. to him and his heirs lawfully begotten forever together with twenty slaves or negroes to be part of those now working on the said land and all the stock of every kind on the said lands at the time of my death ; and I also give to my son John Champe, junior, all the remaining part of my lands in King George County next above Poplar Swamp, together with the plantation that I now live on co him and his heirs lawfully begotten forever together with twenty slaves and all the stock, of every kind, that shall be on the said lands at the time of my death; and all the rest of my negroes in King George County to be in possession of my wife during her life and after her death I desire that they may be divided between my two sons: and if either of my sons should die without issue, my will is that the whole go to the survivor, and they both die without issue lawfully begotten, then my will is after my wifes death that the lands be sold and the monies thereon be equally divided between my daughters then living and their heirs forever. My will is that all my lands in Prince William County and slaves be equally divided after my wifes death, between my sons William Champe and John Champe under the same limitation as 166 *my lands are given in King George County, &c.” And in another clause thereof, “My will is that all the lands in King George County above Poplar Swamp negroes and stock be and remain in possession of my wife, as also all the lands in Prince William County negroes and stogk be in her possession and disposal during her life for the support of herself and family and then to fall to my sons, as before mentioned. ’ ’ That the lands in the declaration mentioned, are a part of the lands devised on the said will, in the aforesaid following words: “My will is that all my lands in Prince William County and slaves be equally divided after my wifes death between my sons William Champe and John Champe under the same limitation that my lands are given in King George County.” That the testator appointed his said wife executrix, and his said two sons, William Champe and John Champe, executors, of his said will. That the said William Champe was the testator’s eldest son and heir at law; and that, after the death of the widow of the testator, (which happened in theyear 1766,) the said William Champe and his brother John, by their own consent and agreement, divided, equally between them, the lands in the said clause of the said will mentioned; whereby, the lands in the declaration mentioned, were assigned to the said William Champe, ás his part thereof, who entered, and was seised, as the law requires. That the said William Champe sold and conveyed the lands in the declaration mentioned, to Bernard Hooe, by deeds of lease and release, dated the 9th, and 10th, days of February, 1783, who entered, and was seised, as the law requires. That William Champe survives his brother John, and died on the 19th of April, 1784, without lawful issue of his body, leaving his sister, Sarah Carter, : ' . the plaintiff, his heir at law, and the only child, then alive, of the said testator; and that the said John Champe, the devisee, : also died without lawful issue of his body. Upon this verdict, the District Court gave ' judgment for the defendants in the ejectment; and from that judgment, the plaintiff appealed to this Court.
    *The question was, whether the plaintiff’s title was barred by the act of Assembly, passed in the year 1776, [c. 26, . 9 Stat.'Earg. 226,] declaring, that tenants of lands or slaves in tail should hold the same in fee simple? For, if not, then as the events had all happened on which the remainder had been limited to the plaintiff, she would be entitled to the lands in the declaration mentioned.
    Call, for the appellant.
    Contended, 1. That the act of 1776 had not destroyed the remainder, in estates tail created prior to the passage of that act.
    1st. Vested remainders.
    The mere declaration, that tenant in tail shall stand seised in fee simple, does not operate like a fine and recovery in England. Because, there, a recompence in value is always supposed; which, the remainder-man may receive in satisfaction of the loss. 4 Reaves’ Hist. Eng. Law 339; 2 Black. Com. 358-9. For the fine and recovery does not overthrow and destroy the remainder itself; but, it only bars and estops the remainder-man from recovering on account of the vouching to warranty and recompence in value.
    Therefore, the act of Assembly, and the fine and recovery agree in this, that neither destroys the remainder; but, they disagree in this, that in the case of fine and recovery, the remainder-man is barred and es-topped, in respect of the recompence and voucher, although the events should after-wards happen, from recovering the specific lands entailed; and, is driven to pursue the recompence. But, as there is no such recompence or voucher, in the case of the act of Assembly, there is, consequently, no bar or estoppel to prevent it; and, therefore, the remainder-man becomes entitled to enter, upon the happening of the contingency.
    Hence, it follows, that express words are necessary, in order to destroy the remainder; or else, it will continue to exist, 168 and the right of entry will ^attach in the tenant in tail, whenever the event upon which it was limited, shall come to pass.
    This, which is clear upon principle, is corroborated and confirmed by authority. For, although, the statutes of the 18 Edw. I. and 4 Hen. VII. have words, which at the first sight, would seem to amount to a destruction of the remainder-man’s right of entry, yet the Courts in England would not admit, that they could, by mere implication, be adjudged a sufficient bar; and, therefore, the statute of the 32 Hen. VIII. was made, in order to remove the difficulty. 2 Black. Com. 354-5.
    This also appears, to have been the idea of our own Legislature. For, the act of [Oct.] 1748, [c. 1, l 16, 5 Stat. Larg. 415,] has expressly declared, that by writ of ad quod damnum, “the issue in tail of the vendor, and all other persons in remainder, or reversion, shall be barred, in the same manner as the same estate might be barred, by fine and recovery, according to the laws of England.’-’ And, similar expressions are to be found in many private acts of Assembly. All of which, go to prove that, in the opinion of the Legislature, express words were-necessary to defeat and destroy the remainder.' ■ ■
    But, there are no such express words in the act of 1776. In which, not a sentence has even indirectly, much less in so many words, declared the remainder to be void and ineffectual. Eor the words, limitations and conditions, in the last member of the enacting clause, only mean that the tenant in tail may have a fee simple, notwithstanding the remainder; and, not ■ that the remainder shall be destroyed, and annulled. But .take away, those two words, .and there is not an expression left, which can even incidentally, go to affect the remainder.
    The saving clause does not alter the case; because, it is only an exception-out of the enacting clause; and, consequently, if that does not abridge and defeat the remainder, much less can the exception out of the generality of the expression of the enacting clause. A statute, which recites 169 a *non-existing statute, does not make the recited statute to exist. 5 Com. Dig. 260; and, much less will a bare exception; out of the enacting . clause, give •greater power to that very clause, out of which, itself is taken.
    The fair inference- from all this is, that the remainder is not destroyed, but continues to exist, although it may chance never to take effect, in actual possession and occupation of the estate.
    But, if the remainder is not destroyed, it may well take effect on failure of issue; because, the necessary consequence of the non-destruction of the remainder, is, that tenant in tail does not take an unqualified, but a mere determinable estate in fee simple, by the act of 1776; that is to say, he has. a fee,simple which will continue to endure, so long as the issue of his body lasts, but no longer. Seymor’s Case, 10 Co. 97. Eor, if the remainder was not destroyed, it must attach and take effect in possession, by virtue of the instrument which, creates it and the statute de donis, whenever the contingency happens; and, therefore, must interrupt and determine the precedent determinable estate.
    Because, the statute de donis is only repealed as far as the act of 1776 operates; and, therefore, if the latter does not destroy the remainder, then, by the necessary construction and force of the. statute de donis, the remainder must take effect. Eor, take the two statutes together- as one system of laws, and the construction will be, that he who was tenant in tail, under the instrument, shall have a fee .simple-; which shall endure so long as he has issue; but when that is spent, then, by virtue of the statute de donis, the remainder shall attach and take effect in actual possession and enjoyment of the estate.
    So, that the act of 1776, may be said only to have altered the quality, but not to have increased the quantity of the estate of tenant in tail; that is to say, that it only alters the descent and makes the estate go to the heirs general, instead of the heirs special, according to the doctrine in 170 Seymor’s Case, *before-mentioned; which clearly demonstrates, that the alteration of the estate from fee tail to fee simple, does not destroy and overthrow the remainder.
    This construction is in perfect harmony with the act of Assembly; as it gives a fee simple to the tenant in tail; which is all that the act has provided for.
    2d. Contingent remainders.
    But, if it should even be admitted that vested remainders are all swallowed up and destroyed by the act of 1776, yet contingent remainders are not.
    Eirst, because they are not in being, but only have a capacity to exist at a future time; and, therefore, as they are not expressly destroyed by the act of 1776, they will not lose their effect when it comes into actual existence. Pow. on Dev. 251. Eor, 'a statute cannot make that not to exist, which already does not exist; but, as to that, the statute is vain and ineffectual.
    Secondly, because they derive their force and effect from the statute de donis; which, in this respect is not contradicted by the act of 1776; but, has been already shewn to be consistent with it; and, therefore, ci pres, the force of that statute continues.
    Thirdly, because these contingent interest and possibilities are not destroyed by any disposition of the preceding estate, unless the connection between ■ them is thereby broken up ánd interrupted.
    Eor, a change of the estate tail, into an estate in fee simple, does not destroy the connection between the two estates, and thereby destroy the remainder, according to .the rule, that, if the preceding estate is any how displaced or destroyed, before the happening of the contingency on which the remainder depends, that the remainder itself is thereby destroyed also. 1st. Because the preceding tenant’s . taking a larger estate, does not destroy a con-171 tingent remainder. *Fearne on Rem. [247-8,] [262-3.] 2nd. Because an alteration of the quality merely, and not of the quantity, don’t destroy the contingent remainder. Eearne on Rem. [259.] But, this was not an alteration of the quantity, but of the quality merely. Eor, the alteration was only as to the descent, that is to say, from special to general heirs, and not as to the duration and continuance of the estate. It, therefore, continued to support the remainder. Eearne on Rem. [j247-8.]
    Eor, the reasons why contingent remainders are destroyed by defeating the preceding estates are two. Eirst, that there may be a tenant to the praecipe; and secondly, that the connection between the different parts of the estate may be kept uninterrupted. Fearne; on Rem. [234;] Plowd. 25.
    Neither of which reasons applies to the present case. 1st. Because the tenant in tail, will be tenant to the praecipe. 2nd. Because the fee, being determinable, does not disturb the connection. The alteration, therefore, of the preceding estate by the act of Assembly, does not "interrupt the connection and destroy the remainder.
    This construction does not destroy the effect of the acts of Assembly, for docking entails. 1st. Because, since the making of the acts, the same words, which formerly signified a fee tail, have, by authority of the law, another meaning imposed upon them; and are made in legal language to signify a fee simple. 2d. Because, since the acts, the donor will be attempting to create what the law will not suffer to exist; and, therefore, the attempt will be void. 3rd. Because the statute de donis is repealed by the general repealing law of [Dec.] 1792, [c. 40, R. C. ed. 1819;] and base fees at common law are destroyed by the acts of 1785 and 1792; so that, in future, there can be no estate tail created.
    2. That the alienation and warranty, by William Champe, had not altered the case, and given his grantee an undefeasible estate.
    Because a lease and release, only convej's what the party granting may lawfully convey, 10 Co. 97; Fearne on Rem. [246-7;] 172 Co. Litt. 328; 1 Burr. *"93; and, therefore, the lease and release only conveyed the determinable fee; but did not alter or increase the quantity, so as to displace the estate and defeat the remainder. If, the tenant for life, grants the estate for his own life, it does not defeat the remainder. For, it is not like a feoffment or a release to the disseisor; because, they convej' an indeterminable fee, which, being an increase of quantity, and not of quality, destroys the remainder. But, in this case, where only a determinable fee is conveyed, the quality only is changed, but not the quantity increased, and, therefore, the remainder is not affected.
    The warranty makes no difference:
    Because, that does not increase the estate to which it is annexed, but, only assures the granted estate of whatever extent or quantity it may be. [Seymor’s Case,] 10 Co. 97. Therefore, as the lease and release, only conveyed the determinable fee, the warranty only went to assure that; and of course, whether lineal or collateral, does not estop the heir. For, it is not like a feoffment, or a release to a disseisor. Because, they convey an indeterminable fee, and therefore, the warranty extending to the whole, by necessary consequence, estops the heir.
    3. That, if the act be construed as intended, to dock preceding entails, it would be unconstitutional and void; because, it would be ex post facto in its operation, taking away private rights without any public necessity, and without making the injured parties any compensation for them.
    It may perhaps be said, that by the act of [Oct.] 1748, [c. 1, § 14, 5 Slat. Larg. 414,] it was declared, that entails should not be docked, except by act of Assembly, and, that if each entail might be severally docked by a special act of Assembly, made for that particular purpose, the whole might be comprised into one act, and all be docked by a general law; and, consequently the remainder-man, who took the estate, subject to this mode of destruction, could not complain that the remainder was cut off.
    But, this is no objection against the 173 position contended *for. 1st. Because that argument proceeds upon a presumption of power, which, if it ever existed, ceased with the Revolution; and, therefore, the support failing, the argument fails of course. 2nd. Because that doctrine, instead of pursuing, does in fact oppugn the meaning and intention of the act of 1748. For, the act of 1748 was intended to restore the full effect of the statute de donis, which had been broken and destroyed by the fine and recovery; and was not intended to facilitate, but actually to hinder and impede the docking of entails. Consequently, the remedy is to be advanced, and the mischief suppressed according to a known rule of interpretation; which will be inverted by the other construction. For, it would be strange, to put such an interpretation upon a law, the professed object of which was to impede and restrain the destruction of entails, as will aid and facilitate the abolition of them.
    It was, therefore, a fair position, after the act of 1748, to say, that no estate tail, created during existence of that statute, could be docked ; because, the law would not presume that the Legislature would make any ldw other than those which already existed ; much less one, which went to the open violation of private right. Consequently, the remainder-man had a well grounded confidence, amounting to an interest, that the Legislature would preserve, and not destroy, his right.
    Hence, in the private acts for the purpose of docking entails, regard was generally had to the rights of the parties; those who were interested in the business, were to have notice of the petition; and an equivalent estate, in analogy to the recompense in the fine and recovery, was settled in the room of that which was docked.
    A law, therefore, which takes away the remainder-man’s right, without any regard to these circumstances, is ex post facto, and, consequently, void.
    But, this inconvenience wilt be avoided by the construction contended for, by us; which, therefore, ought to be adopted.
    *PENDLETON, President. When Mr. Call, yesterday, entered so extensively into the proof, that there may be such things as determinable or subordinate fees in lands, a by-stander would have supposed, that the law under consideration had given some such fee to tenants in tail: but, the words of the act are, “that such tenants in tail, shall be ipso facto seised, possessed, or entitled of, in, or to his estate or interest, in full absolute fee simple, in like manner as if the deed, will, act of Assembly, or other instrument, they hold under, had conveyed the same to them in fee simple; any words, limitations, or conditions, in the conveyance, to the contrary notwithstanding:” Words, too strong to admit of criticism or construction, that his fee was limited, or that all remainders depending on his estate tail, were not destroyed; and, if it needed any aid in construction, that would be abundantly afforded in the saving clause, which excludes all claiming in reversion or remainder, from the benefit of that saving.
    That the alienation or warranty of William Champe, could not give Hooe a better title .than Champe himself had, was too clear to require the labor used to prove it. On these points, therefore, we do not, at present, desire to hear the' defendant’s counsel; but, if the other counsel for the plaintiff wishes to add any observations on those which he thinks important, we are ready to hear him. If this is declined, the defendant’s counsel are desired to. confine themselves to the question, whether the act is void, as being unconstitutional.
    Washington, for the appellant.
    If the act of 1776, does not contain words which expressly or necessarily defeat the rights of the remainder-man, the Court will not willingly adopt a construction which shall produce that effect. It is not necessary to deny the constitutionality of the act of 1776; and, yet, it is observable, that the law of 1748, paid great regard to the rights of the remainder-man: for, in • the case of the ad quod damnum, no-175 tice *was required, and the private acts of Assembly not only gave a real instead of a fictitious recompense, but required notice also; so, that the business was not carried on in haste, but the whole merits of the question were heard. At the time of the Revolution, though, it was thought necessary to unfetter estates; and, perhaps, it was politically wise to do so.
    I am willing, therefore, that, the act of 1776, should have the fullest effect that any reasonable man would require; that is to say, that it shall fully remove all the inconveniences contemplated by the statute; but then, surely I may be1 allowed to ask, that it may not be carried further: Inasmuch, as the law is unjust in taking away the rights of the individual. For a remainder is an interest, which it is as unjust to take away without a cause, as if it were an estate in possession. My request, therefore, is not unreasonable, that the law may not be carried beyond the necessary construction of the statute. -
    It is a rule of construction, that a statute shall not have an equitable interpretation, in order to overthrow an estate, 6 Bac. Abr. 388, [ed. Gwil.]
    The question is, what was the mischief, which the act of 1776, was intended to remedy? The title and preamble shew it,' and prove that the great object of the Legislature, was to defeat the right of the issue in tail. Because, it perpetuated property in the same family, tended to deceive fair traders, discouraged the holder from taking care of and improving the estate, and injured the morals of youth, by rendering them independent of and disobedient to their parents. These were the inconveniences.
    And what was the redress?
    It was bjr making tenant in tail, tenant in fee simple; which altered the course of descent, and broke up the channel performam doni: Thereby, defeating the issue and abolishing the perpetuity.
    *Now, if we satisfy all these objects of the law, why shall not the plaintiff claim under the limitation to her, upon the happening of the events? Since it involves none ’ of the inconveniences stated in the preamble; and, does not tend to frustrate the effect and operation of the law.
    My great ground of argument is, that the act of 1776, does not directly destroy remainders or defeat the issue or reversioner; but, it does it indirectly only. There are no words which expressly defeat either; it is only a consequence of law that does it, by the application of a legal principle. Thus, as to the issue; he claims per formam doni, under the statute de donis; but; the law has altered that course of descent, and, therefore, he cannot claim any longer per for-mam doni. The same answer applies to a vested remainder-man or the reversioner. For, the act of 1776, having given the whole interest to tenant in tail, there is no remnant left for either of them.
    Then as to contingent remainders.
    If his title is by deed, then he claims a fee after a fee; which, by common law, he cannot do; and, therefore, the right is gone, although the contingency happens.
    If by will; and, the limitation is to A. and his heirs, but if he dies without issue, then over; here, he is the remainder, cannot claim it as a remainder either, because, it is a fee after a fee in this case also. Neither can he claim it by executory devise, because it is upon too remote a contingency.
    But, suppose the devise be to A. and the heirs of his body; and, if he die without issue living B.-, that the remainder should be to B. in fee. Here, B. might take by way of executory devise; for, it is within a life in being.
    Suppose the will here had given a fee, with a limitation over on this contingency, it would have been good. I contend then, that it is equally so now.
    "•‘'But, I shall be told that no such' inference can be drawn; for, that the will in this case does not give a fee, which I admit, but the act of 1776, does; and then, why shall not the limitation over take effect? ' .
    If the act had said; that 1 ‘all remainders should be barred,” it might have been a different thing ; but it has not said so, and the only objection to what I contend for, is the legal consequence arising from the law, which does -not apply, where the contingency is to happen within a reasonable time ; for, the docking the remainder, in such a case, is not a necessary consequence growing out of the law.
    The contingencyT here, is, if the sons shall die without issue; then, after the death of the mother, to the daughters who shaT be living ; which event has happened, and it was within a reasonable time, that is to say, within lives in being, so that the candles were all lighted up at once. In short, it is the case of Pells v. Brown, Cro. Jac. 590. Por, if you convert the fee tail into a fee simple, it is the limitation of a fee, upon a fee byr devise. The words of the act are, that tenant in tail shall stand seised in fee simple, in like manner as if the will had conveyed a fee simple to him. Suppose, then, the will had given a fee to William Champe, the contingency on which the limitation over was to take effect, would have been within a reasonable time; and, consequently, the limitation would have taken effect. But, by the statute, he is to be seised as if the will had given him a fee simple; and, therefore, it must clearly follow, that, notwithstanding the act, the limitation over is good.
    Take a view of consequences.
    Suppose a will to be made after the act of 1776: it must be construed in the same manner as this; for, the act includes future as well as prior wills. Then, let one man make a will before, and the other after the act, the limitation over in the last would be clearly good; because the first de178 vise would be a fee, *and then the limitation over would be a fee upon a fee, to take effect within a reasonable time ; for the act of Assembly changes the force and meaning of the words, which formerly signified a fee tail, and makes them signify a fee simple. But, as I said before, a will after, and a will before the act, are both to be construed in the same manner; and, therefore, if in the case of a will after the act, the limitation over would be good, so will it be likewise in a case before the act.
    The present case, therefore, is no more than a limitation to one in fee; and if he dies without issue living the testator’s daughter, then to her in fee; which would be clearly a good limitation.
    Suppose such a limitation for payment of debts, or the advancement of children, the Court would not decide against it surely, but would rather labor to support it. 6 Bac. Abr.
    In the cases of ad quod damnum, and private acts of Assembly, the Legislature cut off the remainder in express words; and the act of 1776, proceeded upon the idea of most remainders being destroyed, but did not include all. Such as this was either casus omissus, or intentionally omitted: and if so, the argument is with us.
    Pull and absolute fee simple is mere tautology; for fee simple, and absolute fee simple, mean the same thing; and, therefore, no argument is to be drawn from thence.
    Nor is any inference to be drawn from the last words of the enacting clause, any more than from the usual words in statutes of any law, usage or custom to the contrary notwithstanding, which are nugatory, because the statute would be law without them.
    The saving clause cannot affect my construction, because an exception never vests any estate, but the contrary. It is taking a smaller from a greater, and does not enlarge the enacting clause. 6 Bac. Abr. [381;] 19 Vin. 532.
    *It may, perhaps, be said, that this act resembles a fine and recovery in England; which, Mr. Pigott saj^s, bars entails, because of the recompense; and Judge Willes, [in Martin v. Strachan,] 1 Wilson, 73, because it is a common assurance. But, as there was no recompense here, and as I have shewn that the act of Assembly does not contain any such destructive operation as the recovery does, they cannot be justly resembled to each other in respect of their effect upon the remainder.
    Taltarum’s Case, in England, [12 Ed. 4, 146, pl. 16,] was laid hold on, by the Judges, as affording an opportunity of destroying estates tail; and when the Courts had once begun it, in order to support their favorite doctrine and to render estates alienable, they construed all estates contingent remainders which could be destroyed by fine and recovery; but those which could not, were held to be executory devises: for, a contingent remainder may be destroyed, but an executory devise cannot. Pearne, on Rem. [306.] But, there is no occasion for that construction at present, as no estates tail can be created hereafter; therefore, as it is a rule, that what was a contingent remainder in its origin, may, from subsequent circumstances, be turned into an executory devise, Pearne on Rem. [418, 419,] it will follow that, in the principal case, what was at first a contingent remainder, has, by subsequent circumstances, become an executory devise ; and, therefore, the alteration in the preceding estate does not affect the case.
    It may, perhaps, be said, that the act of 1776, after destroying the remainder, cannot give effect to it as an executory devise; but, I have shewn, that it does not destroy it, either by the words or by consequence ; and, therefore, that objection can have no weight.
    Wickham and Randolph, for the appellees.
    It will be necessary for ,us, after what has passed, to make but very few observations upon the case before the Court. The act of 1776, has destroyed every species of remainder; for, the language is as effectual, for that purpose, as any that could 180 be ^devised; and any addition would be but mere repetition. The words of the statute are full and absolute fee simple ; which clearly shew the extent of the Legislative mind, and include every quality and property of any fee simple estate; which' Judge Blackstohe, in his Commentaries, says, is the strongest and highest estate.'
    But, the attempt is to turn the fee simple into a determinable fee; and the word absolute, in the statute, is said to be tautologous. Upon which, it may be remarked,' 1st. That fee simple, according to Lord Coke’s definition, 1 Inst. 1, is more' applicable to a general unlimited fee, than it is to a conditional fee. 2d. That lawyers use the word absolute, in contradistinction to determinable fee, 2 Black. Com. 104, 109; Pow. on Dev. 237; and, therefore, no word was so proper, for the purpose of creating an unqualified fee. The saving clause, too, strongly marks the impression of the law-makers; and, indeed, the whole scope of the act shews a fixed determination in the Legislature, "to unfetter the estate: which, is utterly inconsistent with the notion of a determinable fee. The enacting clause ought not to have mentioned reversions and remainders; for’then, perhaps, there might have arisen some difficulties about the extent of the terms used; whereas, by the simple, plain and unequiv-' ocal declaration, that- the tenant in tail should stand seised of a pure and absolute estate in fee simple, all room for doubt is removed; and the tenant has a perfect and indefeasible estate in fee, freed from all manner of limitations and conditions.
    But, it is said, that the words- of . the statute do not include contingent interests in express terms; and, therefore, in the present instance, the remainder will take effect by way of executory devise. But, if the remainders were all destroyed, as we have already shewn, then it was unnecessary to have been more particular in the description; because, an executory devise cannot be limited on an estate tail; and, therefore, it would have been a work of supererogation, to have said, that such interests should be barred.
    *Which, of itself, in a great measure, answers the argument, that the Court would avoid construing it a contingent remainder, lest the statute should destroy it. But, that argument is of little weight upon other grounds. Por, the mere circumstance of its being liable toJ be destroyed, will not prevent the construction, that it is an estate of .a particular kind; but, the Court will give it the fair construction, without regard to the consequences. Pearne on Rem. [306.] Particularly, when the object would only be to preserve a solitary case of'no public utility; .and which, the Legislature, if they had conceived any difficulty could have arisen concerning it, would certainly have provided for. Besides, it is not correct to say, that what was a remainder in its origin, can be turned into an executory devise, by matter ex post facto. The ca^es cited"from Pearne, do - not prove it; for, they were all cases, where the first devise became void in the testator’s own life-time; and, the remainder-man, therefore, took by way of executory devise. So, that in ’ fa.ct, the limitation never was a contingent remainder, after the will began to operate; and, consequently, the cases are not parallel. The words of the act, are more extensive in their operation, than the judgment in a fine and recovery in England; which, clearly would have destroyed the plaintiff’s interest. Spalding v. Spalding, Pow. on Dev. 225.
    In short, the main design of the act of Assembly was, to destroy entails and all other conditional estates, which tended to a perpetuity; and, therefore, the Court should adopt the construction, which will best effect that end: which is, by considering the remainders, and all other contingent interest as entirely barred.
    
      
      Entails — Construction of Statute Docking. — The principal caséis cited in Jiggetts v. Davis, 1 Leigh 422, for the proposition that the statute of 1776, turning estates tail into estates in fee simple, did not convert into executory devises, any remainders limited on estates tail created before the passage of that act, but utterly extinguished the interest of the persons in remainder.
      In Goodrich v. Harding, 3 Rand. 284, Judge Cabell said : “The real question in this case, as to the lands in controversy, is, whether Tbaddeus Goodrich took an estate tail therein ; for if the will gave him an estate tail, then it was converted, by the acts of Assembly 1776 and 1785, into an estate in fee simple, discharged from all limitations whatsoever, whether in the nature of a remainder or executory devise. Carter v. Tyler, 1 Call 165." The principal case is further'cited in this connection in Goodrich v. Harding, 3 Rand. 282; Bells v. Gillespie, 5 Rand. 280, 298 ; Broaddus v. Turner, 5 Rand. 309, 311; Tiusley v. Jones, 13 Gratt. 298; Orndoff v. Turman, 2 Leigh 223, 228, 240 : Turpin v. Locket, 6 Call 175. The principal case is distinguished and explained in Broaddus v. Turner, 5 Rand. 317 ; Smith v. Chapman, 1 Hen. & M. 294. See foot-note to Callis v. Kemp, 11 Gratt. 78.
    
   PENDLETON, President,

delivered the resolution of the Court as follows:

The statute de donis secured entailed estates to the issue and remainder-men, by declaring that the will of the donor in that respect should be observed, and that all conveyances made by tenants in 182 tail, should *be ipso facto void. The fine and recovery furnished means, by which the tenant in tail might defeat both if he chose it, or he might forbear, and leave his estate to the operation of the statute. Mr. Pigott, and the Judge, who contended with him, might, and any other gentleman may, amuse themselves with investigating the principles, upon which, that proceeding was adjudged to bar the issue in tail and remainder-men: It is sufficient to say, that it was adjudged by the court, to have that effect, at an early' period, and so became as much a law of that country as the statute itself.

Our ancestors brought hither with them, both laws as a rule of property; and, the fine and recovery might have been used here, if the forms could be preserved, until the Legislature should interpose to prohibit them. And, this I find they did by an act passed in [Oct.] 1710, [c. 13, $ 4, 3 Stat. Larg. 517,] reserving to the Assembly the sole power of docking entails.

The exercise of this power was, by acts passed on each particular occasion. Which, may rather be viewed as a change of the lands on which the estate tail was to operate; than, as defeating that estate, and giving a real recompense for it, instead of the fictitious one, in the form of the fine and recover}'. The old lands were vested in fee simple, and the new placed in the hands of the tenant to pass to his issue, and those claiming in remainder or reversion, as the others would have passed by the instrument creating the entail. This spirit in the Legislature, for preserving entails, is further manifested by an act passed in [Feb.] 1727, [c. 11, § 12, 4 Stat. Larg. 225,] authorising the annexing slaves to lands to pass with them in tail, in possession, remainder or reversion, making the slaves, however, 'liable for the debts of the tenant in tail, for the time being. I believe it was in 1734, [Aug. c. 6, § 6, 4 Stat. Larg. 400,] for I have not the law here, that the Legislature, judging as I suppose, that a small tract of land would not support and perpetuate a family, introduced the writ of ad quod damnum, for docking entails. The writ did not defeat the entail, but was a previous en-183 quiry to ascertain *the value, and whether it was a separate tract, not adjoining to other entailed lands of the tenants? If the jury found the value under 2001. sterling, and the other tract affirmatively, then a conveyance, particularly described, is declared to vest the estate in the bargainee in fee simple, and the issue, a.nd those claiming in remainder and reversion, are declared to be barred. From thence, and from the language of the private acts, an inference is drawn, that where the Legislature intended to bar remainders, they did it by express words, which are not in the act of 1776. A review of these acts gives an impression, that in the opinion of the Assembly, a different language was proper, where a fee simple was vested by the act, and where it was to vest in consequence of a future conveyance, whether well or ill founded is immaterial.

In the former case, they barely vested the fee simple, without barring the issue or remainder-men expressly, only excepting them from the operation of the saving clause; in the other case, they expressly declare them barred. But, since it is admitted, that the issue and vested remainders are barred, in consequence of what is declared in the act of 1776, the question is, whether that consequence does not include the limitation under consideration, without the aid of the construction, against which this observation was applied. Whether it does or not, I shall consider when I come to that act. In the revised law of 1748, [5 Stat. Larg. 414,] the prohibition of fines and recoveries, and permission of writs of ad quod damnum were continued till the Revolution. That event having produced a new order of things, this great subject came before the Legislature in October, 1776, under a view of all its legal circumstances, from the common law and the statute de donis, down to that period.

" The great subject of discussion was, whether they should restore the fine and recovery, which was objected to on account of its fictitious nature, and the trouble and expense attending it; but the principal objection was, that it would permit 184 the *tenants to continue what was considered as a mischief; and, that those who possessed the large estates, would have an inclination to continue them in their families. They, therefore, resolved to cut the Gordion knot at once, and, ipso facto, to vest the fee simple in those who then had, or should in future have, an immediate beneficial interest; that is to say, an estate in fee-tail in possession, or a remainder or reversion in tail, after estates for life or lesser estates, unfettering the estates of all future interests depending, in creation, upon those estates tail.

That this was the design of the act, is manifest, from the title and preamble: and the question is, do the words of the enacting clause effect their purpose, and defeat the plaintiff’s remainder?

1st. Rules of construction of statutes are given us, but none of them prove, that where the words of a statute are plain and obvious, the Court can, by construction, restrain their operation. The rules prove the contrary.

2d. The revised law of 1785, [c. 62, 12 Stat. Larg. 156,] and 1792, [R. C. c. 90,] on this subject referred to, which adds to the vesting in fee simple these words: ‘The estate shall from that time, (that is from 1776,) and thenceforth, be discharged of the conditions annexed thereto by the common law, restraining alienations before the donee shall have issue; so, that the donees or persons in‘whom the conditional fees vested or shall vest, had and shall have, the same power over the estate, as if they were pure and absolute fees.” This, it was said, proved that the words of discharge are necessary ; which, being omitted in the act of 1776, are here supplied, and the act so far amendatory; and in that view, must be prospective only, and not retrospective, according to former judgments of this Court: so, at least, I understood the application of those acts. I am of opinion, these acts make no alteration, but only express in other words, and those not so strong, what is in the former law. Conditional fees at common law, are estates tail under the statute, and these, the act of 1776, says, shall vest a full and ab-185 solute estate in fee simple. *And what are the words of exclusion in the hew acts, discharged of the condition annexed by the common law, to the conditional fee? The act of 1776, is, “the fee shall vest in the tenant in tail, in the same manner as if it had been conveyed to him in fee simple, notwithstanding any words, conditions and limitations, to the contrary, in the instrument of conveyance.” If this be not effectually discharging the estate of those words, conditions and limitations, I own I am not able to discover the difference.

3rd. But the gentleman said, that estates may yet be limited, to provide for contingencies in families; and of this there is no doubt. A parent may guard against an improvident child’s wasting his provision, by limiting his interest in, or power over it. He may give an estate for life, and limit remainders over upon it; but how far he may go in limiting estates for life, one after another, so as to effect a perpetuity, we leave to be decided, when a case shall come before the Court, in which the experiment shall have been made. At present, we can safely say, that whenever the conveyance gives an estate tail in lands, the act vests in that tenant an estate in fee simple.

But inconveniences are objected:

1st. A man ought to be allowed to provide for perpetuating estates in his family, one after another; but, this the act prohibits as injurious to society.

2nd. But he may, by these remainders, provide for paying his debts, and for younger children. A provision for either, by a remainder, to take effect after a general failure of issue, which, it is truly said, may not happen in 1000 years, would be very unsatisfactory.

On the other side, we discover important inconvenience in the decision labored for. The act has been in operation 21 years; and we might suppose, and indeed know, that great numbers of tenants 186 *in tail have sold their estates to fair purchasers, without a doubt of the interest being absolute, and unfettered of these latent family provisions engrafted on that estate tail. To subject these purchasers to be disturbed in favor of mere volunteers, would be, at least, a great evil. But, in this Court, the law is to guide.

Mr. Washington states a difference between a will made the day before, and one made the day after, the act of 1776, which we do not comprehend. That act makes no difference between estates created before or after.

These objections being removed, we come to the act itself, the words of which are so strong and explicit, that no comment could increase their force.

Wm. Champe was indisputably tenant in tail of these lands, at that period, which the act changes into a full and absolute fee simple. And what is the general aspect of Mr. Washington’s reasoning? The issue, who have the first and most important interest, are defeated; and a contingent remainder, which may never take effect, and which I call an estate in the clouds, is preserved. I believe it may be truly said, that no statute ever proceeded upon such a system. It only remains to consider Mr. Washington’s great fort, that this devise may be supported as an executory devise, consistent with William Champe’s háving a full and absolute fee simple under the act; and, if he could have proved this, he would have succeeded. But this is not, and cannot be proved.

For, what is a fee simple? It includes an entire dominion over the property to sell, to give, or transmit to heirs general; and when an instrument has disposed of that to one, nothing remains to be given to others, or to descend.

The words full and absolute, used by the Legislature, the word pure, by Lord Coke, and pure and indefeasible inheritance, used by others, are epithets to distinguish fee simple from base and limited fees; unnecessarily, indeed, as fee simple alone 187 would *have’ the- same effect. That an executory devise, under proper rules, may be limited upon a contingent fee, is proved; the cases go farther, however, and prove that a devise, in itself importing a fee simple, may admit of an executory devise afterwards. But by what operation? By changing the supposed fee simple into a contingent and limited fee, from apparent intention. There are no words or spirit in the act, to admit of such an operation in full and absolute fee simple which it vests in William Champe. So that, if this devise, which is a contingent remainder, and as such, barred by the act, could be converted into an executory devise to some purposes, yet it cannot be so changed to avoid the act, nor have that effect. Upon the whole, we are clear and unanimous, that the defendants, under the conveyance from William Champe, have a good title; and affirm the judgment.  