5. That if the words will bear two fenfes, one agreeable to, and another against law, that sense fhall be prefered which is moft agreeable to law. As if proprietor in fee-tail, lets a leafe for life generally, it shall be conftrued for his own life only, for that is confiftent with the law and not for the life of the leffee, which is beyond his power to grant.

6. That in a deed, if there be two claufes fo totally repugnant to each other, that they cannot ftand together, the firft shall be received, and the latter rejected; but in a will, where there are repugnant claufes, the last shall stand: on the principle that the firft deed, and laft will, are always moft available in law.

7. That a devife be most favorable expounded, to purfue if poffible, the will of the devifor, who for want of advice, or learning, may have omitted the legal and proper phrafes. The law therefore many times difpenfes with the want of words in devifes, that are abfolutely effential in all other inftruments. Thus a feefimple may be created by devife, without the word heirs, and at fee-tail without ufing words of procreation, if it be apparent that fuch estate was intended to be created, y as a devife to a man, and his feed, or his heirs male, or any fuch expreffions, evincive of his intent, tho in a deed an eftate for life only would pafs. The fame may be faid in refpect of eftates in remainder and reverfion.

CHAPTER EIGHTEENTH.

OF TITLE BY ESCHEAT.

LANDS never efcheat by reafon of tenure, and of course there are

no private perfons who take lands on failure of heirs, as was done by the feudal lords, on extinction of inheritable blood in their vaffals. Lands efcheat to the ftate, on failure of heirs, according to the rules of defcent, or when no owner can be found. The statute respecting efcheats, points out the mode of procedure. The courts of probate are to fecure fuch eftates in the hands of administrators, by them appointed for that purpofe, and to notify the state treasurer, who has power to difpose of the fame, and to render his account to the general affembly annually. If

2 Black. Com. 115. z Statutes, 51.

any

any heir or owner fhould afterwards appear, they are entitled to the eftate, or a reasonable compenfation.

Lands efcheat upon failure of heirs, and this happens where there is a compleat extinction of inheritable blood, according to the law of defcent.

An heir to a perfon, is he who on the death of such person, will by the law of defcent fucceed to his estate. This implies, that no perfon can be a compleat heir of another, till the ancestor be dead, for it is a common maxim, that no one is the heir of the. living. Before the death of the ancestor, those perfons who are entitled to fucceed to his eftate, if he dies inteftate, may be denominated heirs apparent, or prefumptive heirs. All perfons may be heirs, excepting monfters, baftards, and aliens.

I. a A monster, is defined to be a creature born in lawful marriage, that has not the fhape of mankind, and evidently has fome refemblance of the brute creation. Creatures coming within this defcription cannot inherit. But then the deformity must be so great, that the being cannot be confidered, as a part of the human fpecies for if the being, be created in human form, tho he be deformed in fome parts of his body, as if there be fix or four fingers, or the limbs are useless, or distorted, yet he may be a legal

heir.

2. Bastards being children born out of lawful wedlock, or not within a proper time after its determination, cannot inherit.— They are confidered as the fons or children of nobody, or of every body, and no inheritable blood flows in their veins. Lands therefore will efcheat to the state, if there be no other relation to the last owner. Baftards can have no other heirs than the iflue of their own bodies: for as they are confidered as the children of nobody, there can be no ancestors, by which a kindred or relation can be made. Nor can the courfe of defcents be traced through them. But they must be confidered as beginning a new stock or family. The reafon of excluding baftards from the right of inheritance, is on account of the uncertainty of their ancestors. But this rule is extended to cafes where there is no uncertainty, as the mother of a baftard. Yet by the principles of the common law, #t

U u 2

2 Black. Com, 246.

b Ibid. 247.

if the mother dies, leaving lands, or the bastard, leaving lands, and a furviving mother, they cannot be heirs to each other; but the eftate fhall efcheat or go to the lawful heirs.

3.

Aliens or foreigners not belonging to this or any of the United States, are incapable of helding lands in this ftate, by virtue of a statute made for that purpofe, and of courfe cannot be heirs. If then, a citizen of this ftate die poffelled of an eftate, in lands, and leave relations that are foreigners, either refiding in this state, or in fome foreign kingdom, they cannot inherit, but the lands fhall efcheat to the state. So if a citizen fhould leave remote relations that were legal inhabitants of this state, and nearer relations that were foreigners, the remote relations belonging here, muft inherit in preference to the foreigners.

In respect however to the lands that were holden in this ftate by foreigners, at the time this act was paffed, I prefume that they will defcend to the heirs of fuch foreigners, who fhall continue to hold them till their death, in the fame manner, as tho this ftatute had never pafled.

CHAPTER NINETEENTH.

OF TITLE BY EXECUTION.

THE mode of acquiring title to real property by execution,

was not derived to us from the law of England, for there, a title to lands in fee fimple, cannot be acquired by the levy of an execution. But they may by force of the ftatute of Westminster fecond, pray out an elegit, a particular kind of execution, by which half the lands of the debtor may be extended, and holden by the creditor until the debt be difcharged. But in this ftate, by force of the ftatute, refpecting the levying of executions, it has become a very common mode of acquiring the title to lands, by the levy of an execution. Whoever has an execution against a debtor, owning lands, may levy the fame on them, provided the debtor is unable to difcharge it by the payment of the money, or cannot tender fuflicient perfonal estate to fatisfy it. The creditor however has no legal right to levy on real eftate, if perfonal can be had. He has the right

e Statutes, 83.

ot

of election, respecting the taking of lands, and the debtor cannot tender them on the execution, to fave his body from imprisonment: the creditor may elect, to take the body, or lands, but if perfonal ef ate can be found, it must be levied upon in preference to either. The officer cannot levy the execution on lands, without the exprefs direction of the creditor, tho they are inferted in the execution.

The mode of proceeding being clearly pointed out by the statute in this cafe provided, it will be fufficient to recite that part of it which relates to this fubject. By this act it is enacted, that all lands and tenements, belonging to any perfon in his own proper right in fee, fhall ftand charged with all the juft debts owing by fuch perfon, as well as his perfonal eftate, and fhall be liable to be taken in execution for the fame, where the debtor or his attor ney fhall not expofe to view, and tender to the officer perfonal eftate to answer the fum mentioned in the execution, with all charges. And all executions duly ferved upon any fuch houses, or lands, being with the return of the officer thereon, recorded in the records of lands in the town wherein fuch houfes or lands are fituate, shall make a good title to the party, for whom they were taken, his heirs and affigns forever and whenever any execution fhall be levied on lands, the fame fhall be appraised by three indifferent freeholders of the fame town where fuch lands lie, or if that town be a party, then of the next adjoining town, one of whom may be chofen by the debtor, and another by the creditor, and if they do not agree in chufing a third, or if either party neglect to chufe, the officer fhall apply to the next affiftant or juftice of the peace, who by law, may judge between the parties in civil cafes, which authority, fhall appoint one or more appraisers, as the cafe may require, which appraisers fhall be fworn according to law, and it shall be the duty of the officer who levies,fuch execution upon the lands, to caufe the execution, with his endorsement thereon to be entered on the town records as aforefaid, before he returns the fame into the clerk's office of the court out of which it iffued, and the officer fhall have two fhillings for caufing the fame to be recorded, with additional fees for his travel.

The Satute contemplates the levy of executions upon lands holden

d Statutes, 62.

holden by the debtor in fee, without mentioning any leffer eftate, But it is clear, that where a debtor holds a lefs eftate in lands than a fee, the execution may be levied on the fame, in the manner as the statute directs in cafe of an eftate in fee, by force of which, the creditor will aequire all the title which the debtor had in it, in the fame manner, as he might by a deed describing it as an efstate in fee, and would have right to occupy and improve the fame during the full term, to which the debtor was entitled. So the execution may be levied and proceeded with in the fame manner as in cafes of levies on eftates in fee and in the return of the officer, the particular eftate which the debtor has, may be defcribed and appraised according to its value, having regard to its continuance, which levy would unquestionably convey to the creditor, the cftate of the debtor: But then in all cafes, where a levy is made upon lands, in which the debtor has an eftate, less than a fee, the whole eftate of the debtor must be taken, fet off, and appraifed: for our law will not admit that a levy fhould be made for any particular number of years, which are or may be lefs than the eftate of the debtor, by which it would at the expiration of the time, for which it was taken, revert to the debtor. But the whole eftate must be taken, and may by the appraisers be estimated according to its real value.

Neither does our law admit the levy of an execution on lands, to be holden till the rents and profits difcharge the debt.

A question has often arifen with respect to the power of creditors, to take by execution, crops growing on lands, which are cultivated by tenants at will, or by fufferance, or on fhort leafes. An idea has been entertained, that the execution may be levied on the crops of grafs, or grain, or any thing elfe while growing, and that they may be fevered and fold as perfonal elate; but the law will not warrant fuch a levy. In all cafes where a tenant at will, or by fuferance, or on a fhort leafe, has grain or grafs or any other thing growing on the land, he has by law a right to all fuch ufe of the land, as will be neceflary to take the benefits of his grain, or grafs that is growing. While growing it is considered as a part of the realty. The only mode of courfe of proceeding against fuch tenant, to obtain fuch eftate by execution, must be by

levying