solute estate, after the expiration of the life. So that, if real and personal estate be conveyed to one by such words, the devisee will take an estate tail of inheritance, in the real estate, and an estate for life only, in the personal. As was the case of Forth and Chapman, reported in 1 P. Wms. 665, where the devise was of free-hold and lease-hold estate to A, for life; and if A died leaving no issue, then to B; it was determined that A took an estate tail in the free-hold lands, and an estate for life in the lease-hold for in the last, he was supposed to mean by the words leaving no issue, leaving none at his death; but in the former he was supposed to mean, that if A died without issue generally; by which there might at any time be a failure of issue.

The acumen of astute judges is able to force these different ideas with respect to the same words, into the minds of the testators; but to them alone are we indebted for these distinctions: they would, with deference to the opinion of grave and learned judges, have escaped the man that possessed nothing more than plain good sense, and a sound understanding. When the intention of the testator was apparent to entail personal property, and when not, we shall find the same discordance of opinion among the English lawyers, in cases of personal estate as in cases of real.

Whether, in any instance, in the State of Connecticut, a devise of personal estate to one and his heirs, can, upon principle, be considered as vesting the whole in the first devisee, may be considered as a question. The law of this State, with respect to a limitation of a personal estate to one for life, and remainder over to another, is considered, I apprehend, the same with the English law. And the great reason why a limitation to one and his heirs, in the English law, is not permitted, is, the danger 485 of establishing thereby, a perpetuity. To prevent this, I

the law declares, that in such case, the whole interest vests in the first devisee. But by our law of entailments, an entailed estate vests a fee-simple in the issue of the first donee: so that all danger of a perpetuity is at an end; and, of consequence, there is no danger of indulging the intention of the testator, by admitting such a limitation to be effectual, to vest in the heirs the estate given. Among the numerous authorities upon this subject, are Atkinson v. Hutcheson, 3 P. Wms. 259. Soltern v. Soltern, 2 Atk. 376. Pelham v. Gregory, 5th Brown's Parliamentary Cases. Theebridge v. Kilburn, 2 Ves. 236. Garth v. Baldwin, 2 Ves. 646, &c. Hodgeson v. Bussey, 2 Atk. 89. Seale v. Seale, 1 P. Wms. 290. Beauclerk v. Dormer, 2 Atk. 312.

II.

Of the Maxim NEMO EST HERES VIVENTIS.

WHEN an estate is given to a man and his heirs, this vests nothing in the heir. It altogether vests in the devisee, or grantee. The phrase heirs only serves to show the nature of the estate: that is to say, an estate, that, in a course of descent, will go to his heirs. If, therefore, A devises an estate to B and his heirs, and B dies in the lifetime of the testator, the devise is lapsed, for nemo est hæres viventis. So if given to the heirs of C, and C is living when the devise is to operate, that is to say, upon A's death, there is no person, according to the afore-mentioned maxim, to take the estate. Plowden, Brett v. Rigden. But if the description is such as to make it clear, that the testator meant some particular person to take, this intention shall be regarded as a devise by A "to the heir of C, now living," whilst C was alive. Burchell v. Durdant, T. Raymond, 330. In this case, it was plain, that he meant the heir apparent of C. And wherever the case comes up to this, that the testator intended, by the phrase heir, an heir apparent, the devise is good, and vests in such heir apparent by purchase. In the case of a devise to A and his heirs, A dies, leaving the testator: what difficulty would there be in considering the heirs of A as taking by purchase, upon the contingency of their ancestor's dying before the testator? And, in the case of a devise to the heirs of C, C being then alive, is not the presumption violent, that he meant the heir apparent of C? It must be so, unless we can suppose the testator whimsical enough, when he gave the estate, to intend that it should not go to any by devise, unless the ancestor of that person was dead.

How far the Term HEIRS is necessary to Convey an Estate of Inheritance, either in a Deed or Will.

WE have already seen what the operation of that term is in such an instrument. I shall now consider in what cases a fee

devise real property, think that any thing can be necessary more in that case, than when they devise personal property. When a testator gives to J. S. a horse, he has not the most distant idea that it is for the life of J. S.; neither is it so, but for ever. Neither, in the case supposed, does he imagine he is giving his farm for life; but supposes that the same words which imply a gift forever of personal estate, also imply a gift forever of real estate. Ought it not to be presumed, that the testator intended a fee-simple in all such cases, except where we find, from other parts of the will, that he understood how to devise technically? In the case of Right and Sidebotham, Doug. 730, Lord Mansfield says, that "all my estate" would pass a feesimple; but "all my lands lying in such a place" had been considered only as descriptive of their locality, and an estate for life was given. But why do the terms "all my estate," pass a feesimple? Because, it is said, that these words convey to us the idea, not only of the subject given, but of the interest that the devisor had in the subject. If he had a fee-simple, it follows that a fee-simple was intended to be passed; and the intention is to govern, when consistent with the rules of law. But it is observable that Lord Mansfield says, that he had no doubt of the intention of the devisor to pass a fee-simple in that case. Why then was it not so adjudged? It must be that the words used in that will were not such words as had been considered as sufficiently evidential of the devisor's intention. It seems, then, that although the court is clear, beyond a possibility of doubt, what the devisor's intention was; yet this intention is not to govern them, unless the evidence of such intention is derived to them throngh a certain set of words. When it was first established, that the words "all my estate," pass a fee-simple, these were not

the legal technical words to pass a fee; how, then, came it 491 to be so adjudged? The answer is obvious, upon the clear

intention of the testator that it should be so. Why, then, should it not always be thus adjudged, when the intention is equally clear? Can any solid advantage be derived to us by adopting such distinctions, unless we are satisfied that they are founded in sound sense? That the law respecting devises should approach much nearer to the standard of common sense, than that of deeds, is not extraordinary; for the latter was grown into a system, by the adjudications of men groping in the thick darkness of a Gothic night, and was riveted in the minds of men by the syllogistic jargon of schoolmen. But the law of devises did not commence its formation, until the kindly beams of liberal

science had began to irradiate the world, when a system more conformable to the dictates of reason might be expected.

It can hardly be doubted, that, if the systems of deeds and wills had sprung up together, but that the same words would have had the same effect in a deed as in a will. Surely it is as important in the former, as in the latter, that the intention should be complied with; and there can be no danger of admitting this idea. The words in a will to convey a fee-simple, must be clear, such as are indicative of that intention beyond a doubt. The indulgence shown to wills, admits of no conjecture; for the rule is, that the words used, must clearly demonstrate what kind of estate was intended to be given. Will not the same words in a deed, convey the same ideas with equal clearness? Does not common sense revolt at the idea that courts, whose peculiar province it is to administer justice, should give a construction to such words, when found in a deed, as is diametrically opposed to the intention of the parties, and the clear, unequivocal meaning of the words themselves? Will the investigating mind rest satisfied with the reasons given, that in wills, the intention is to be regarded, when clearly expressed, although not disfig- 492 ured by a certain set of technical expressions? that a testator is often inops consillii? His wishes are, therefore, to be complied with, and no criminalty imputed to him for not expressing himself in the language of a lawyer. But as to the man who conveys by deed, he, probably, is in sound health. Let him express his intention with ever so much perspicuity, since he has an opportunity to procure a Confessor in Technics, if he will not, they will impose the penalty upon him of thwarting his intention, and adjudge that he meant that, which they know he never intended. The warmest advocate for the galling fetters of systems and precedents, will find it difficult to convince the mind, not illuminated by legal maxims, of the propriety of giving different constructions to the same words in different instruments; when it is beyond a doubt, that the persons using them, affixed the same ideas to the words in one instrument, as they did in the other.

IV.

Of the Operation of the Term HEIRS, in a Bond.

493

By the English law, the personal estate is the only fund for the payment of debts of deceased persons, unless the heir is bound

I devise real property, think that any thing can be necessary more in that case, than when they devise personal property. When a testator gives to J. S. a horse, he has not the most distant idea that it is for the life of J. S.; neither is it so, but for ever. Neither, in the case supposed, does he imagine he is giving his farm for life; but supposes that the same words which imply a gift forever of personal estate, also imply a gift forever of real estate. Ought it not to be presumed, that the testator intended a fee-simple in all such cases, except where we find, from other parts of the will, that he understood how to devise technically? In the case of Right and Sidebotham, Doug. 730, Lord Mansfield says, that "all my estate" would pass a feesimple; but "all my lands lying in such a place" had been considered only as descriptive of their locality, and an estate for life was given. But why do the terms "all my estate," pass a feesimple? Because, it is said, that these words convey to us the idea, not only of the subject given, but of the interest that the devisor had in the subject. If he had a fee-simple, it follows that a fee-simple was intended to be passed; and the intention is to govern, when consistent with the rules of law. But it is observable that Lord Mansfield says, that he had no doubt of the intention of the devisor to pass a fee-simple in that case. Why then was it not so adjudged? It must be that the words used in that will were not such words as had been considered as sufficiently evidential of the devisor's intention. It seems, then, that although the court is clear, beyond a possibility of doubt, what the devisor's intention was; yet this intention is not to govern them, unless the evidence of such intention is derived to them throngh a certain set of words. When it was first established, that the words "all my estate," pass a fee-simple, these were not

the legal technical words to pass a fee; how, then, came it 491 to be so adjudged? The answer is obvious, upon || the clear

intention of the testator that it should be so. Why, then, should it not always be thus adjudged, when the intention is equally clear? Can any solid advantage be derived to us by adopting such distinctions, unless we are satisfied that they are founded in sound sense? That the law respecting devises should approach much nearer to the standard of common sense, than that of deeds, is not extraordinary; for the latter was grown into a system, by the adjudications of men groping in the thick darkness of a Gothic night, and was riveted in the minds of men by the syllogistic jargon of schoolmen. But the law of devises did not commence its formation, until the kindly beams of liberal