JACKSON. April, 1836. Polk & others ▼ Faris. necessity for such construction. man, 1 H. and Mun. 263. Smith and wife vs. Chap 2. If my first position is sound law, that is, if the words "heirs of her body," are words descriptive of those who are to take the property, it must follow as a necessary consequence, that the subsequent limitation is good; because, although a limitation after an indefinite failure of issue is void; yet a limitation in default of children, or a limitation over in case of her dying without leaving lawful children, would be good; 5 Day's Rep. 98. In such case, the limitation would take effect, if it took effect at all, within the period limited for the vesting of an executory devise, or springing use, to wit: a life or lives in being, and twenty-one years and nine months thereafter. The limitation here is, and for default of such issue, then, &c. "Such issue" refers to the preceding limitation, and is controlled by it. If the preceding limitation is in effect, a remainder to her children, then the subsequent limitation will read thus, "if said Agnes Brown dies without leaving such lawful issue, i. e., such children, then over, &c. Upon the death of Agnes Brown, if she leaves children, it vests in them; if she leaves no children, the subsequent limitation instantly vests the property in Elizabeth Strain and her heirs. See 1 Salkeld's Rep. 225, 226: 2 Thomas Coke 535: 2 Atkins Rep. 138, 139: Goodtitle vs. Pegden, 2 Term Rep. 720. In limitations of this kind, the question is not whether the case falls within the rule in Shelly's case, but whether the limitations tend or amount to a perpetuity, and the rule in fact is only regarded as auxiliary in settling this question. Thus, an estate to a man and the heirs of his body, or to a man for life remainder to the heirs of his body, and on a general failure of issue, remainder over to the donor, is within the rule, because it amounts to a perpetuity. But an estate to a man and the heirs of his body, or for life, and then to the heirs of his body, but if he die and have no issue at his death, remainder over, is good, and not within the rule, because this does not amount to a perpetuity, as the time within which the limitations must vest, if they vest at all, is within the time limited by law. See as to the above illustration the case of Higginbotton vs. In the two last cases cited, and also in those from Salkeld 225, and 2 Term 620, the court, in deciding that the limitations over were good on the death of the donees or devisees dying without issue, established incontrovertably, that if the donees or devisees had died leaving issue at their death, that issue would take the estate. These decisions are in conformity with the clear intention of the donor, which was merely to vest a life estate in Agnes Brown, and after her death in her children, and if she had no children, then to revert to the donor; and it is a maxim that such a construction ought to be made of deeds "ut res magis valeat quam periot," that the end and design should take effect rather than the contrary. See Dormer vs. Fortesque, 3 Atkins 136. 3. If the children of Agnes Brown are entitled to the slaves, in remainder, the act of limitations of course has nothing to do with the case; because they have no right to sue until the termination of the life estate. pos But the statute of limitations can have no effect, if the estate is an absolute one in her, because Elizabeth Strain covenanted and warranted the title against all persons. She and her husband got the property, after she had conveyed it, into their session; and they now insist upon the act of limitations. This covenant is general in its nature, and operates as a covenant for quiet enjoyment, in which the rule is, that the covenantor undertakes against the rightful acts of strangers, and the wrongful acts of himself. See Hays vs. Beckersteth, Vaughn's Rep. 122: Platt on Cavenants 315, 319: Hobart's Rep. 35: 2 Sanders 322: 1 Term Rep. 671: 13 East 72. From the above authorities, and the terms of this covenant of warranty, it is impossible to suppose a claim or assumption of title against which Elizabeth Strain is not bound to defend. It is a personal covenant and binds her as long as she lives, and can only be extinguished by a release. The wrongful assumption of title, the claiming to hold adversely against her covenant, is of itself a breach of the covenant, and if a suit were now JACKSON. April, 1836. Polk & others V Faris. JACKSON. April, 1836. Polk & others V Faris. In this case we insist there are no such words of explanation. The deed, is to "Agnes Brown for life, and after the determination of that estate, then to the heirs of her body lawfully issuing," and for default of such issue, to the donor and her heirs. The argument relied upon, is, that the words "and after the termination of that estate, then to the heirs of her body," show that a life estate was only intended; and that these words, together with the words, "in default of such issue, then to the donor, &c." explain and do away the technical effect of the limitations. It is admitted, they do most clearly demonstrate that only a life estate was intended to Agnes Brown. But they do not evidence the intention more clearly, than would a simple gift for life. For the words to A for life, are as strongly indicative of the intent as language can make it. In every case to which the rule has been applied, the intention was to give a life estate to the first taker. And the question has been, not, whether that was intended, but whether that intention could be carried into effect, without violating the rules of law. The party not only intends to give the first taker a life estate, but by using the words "heirs" or "heirs of the body," he intends the issue to take as a line, or class in succession, until the inheritable blood is exhausted; or in other words, intends all to take, however remote, who can claim as heirs. This intention cannot stand with the first; for if the issue take by descent, as they must do if the words include the whole inheritable line, the ancestor must necessarily have more than a life estate, or the issue or heirs cannot take in the manner pointed out by the gift. The particular intention to give a life estate, must therefore give way to the general intention, that the issue should take as heirs; for both intentions cannot exist together, unless the last intention, manifested by the use of the word heirs, &c. is negatived by words explanatory of the sense in which they were used, and not by words which merely show a life estate was designed for the first taker. The cases upon this point are numerous; no words or expressions, however strong, that a life estate was only intended to the first taker, will be sufficient to do away the effect of the subsequent limitations, were it otherwise, the rule itself could not exist. Thus: where an estate for life is expressly given, and words restrictive of the power of alienation are superadded. This, although inconsistent with an absolute estate in the first taker, has been held insufficient to take the case out of the operation of the rule. Hays vs. Ford, cited Fearne on Rem. 173: 4: Perrin vs. Blake, 1 Har. Coll. 283. Or, words superadded, which give a power to jointure to the first taker. Rundel vs. Ely, Carter Rep. 170: Broughton vs. Langsly, 2 Lord Raymond 873: King vs. Melling, 2 Lev. 78: Frank vs. Stevens, 3 East 548. Or, where there is an estate for life, without impeachment for waste and power to jointure, with limitations to trustees to preserve contingent remainders. Shaw vs. Weigh, 3 Br. P. Cases 130: Jones vs. Morgan, 1 Bro. Ch. Cases 206, Papillon vs. Voice, 2 P. Wms. 471: Bennet vs. Tankerville, 19 Vesey 170: Coulson vs. Coulson, 2 Atkins 247:: Hodgson vs. Ambrose, 3 Bro. Par. Cases 416: Glenorchy vs. Bosville, Cases Tem. Tal. 3: Den vs. Pucky, 5 T. R. 299: Langley vs. Baldwin, 1 P. Wms. 759 Or, where the limitation is to A for life only, or for life and no longer. Robinson vs. Robinson, 3 Bro. Par. Cases 180: Doe vs. Cooper, 1 East 229: Roe vs. Bedford, 4 M. and Selwyn 362. Again: it is argued, that the word "then" in this deed, immediately following the words "after the termination of said estate," together with the subsequent words "for default of such issue," are explanatory of the sense in which the words "heirs of the body," were used. This word is not restrictive of the legal effect of the limitations in this deed. It only has reference to the time when, as heirs they shall take, that is, at the termination of the life estate. It is always used in this sense. See Rundale vs Ely, Fearne 158: King vs. Burchel, Fearne 163; 178, 9. Nor have the words "in default of such issue," the effect contended for. Indeed these words, unless explained, would JACLSON. April, 1336. Polk & others V Faris. JACKSON. April, 1836. Polk & ot! ers V Faris. In this case we insist there are no such words of explanation. The deed, is to "Agnes Brown for life, and after the determination of that estate, then to the heirs of her body lawfully issuing," and for default of such issue, to the donor and her heirs. The argument relied upon, is, that the words "and after the termination of that estate, then to the heirs of her body," show that a life estate was only intended; and that these words, together with the words, "in default of such issue, then to the donor, &c." explain and do away the technical effect of the limitations. It is admitted, they do most clearly demonstrate that only a life estate was intended to Agnes Brown. But they do not evidence the intention more clearly, than would a simple gift for life. For the words to A for life, are as strongly indicative of the intent as language can make it. In every case to which the rule has been applied, the intention was to give a life estate to the first taker. And the question has been, not, whether that was intended, but whether that intention could be carried into effect, without violating the rules of law. The party not only intends to give the first taker a life estate, but by using the words "heirs" or "heirs of the body," he intends the issue to take as a line, or class in succession, until the inheritable blood is exhausted; or in other words, intends all to take, however remote, who can claim as heirs. This intention cannot stand with the first; for if the issue take by descent, as they must do if the words include the whole inheritable line, the ancestor must necessarily have more than a life estate, or the issue or heirs cannot take in the manner pointed out by the gift. The particular intention to give a life estate, must therefore give way to the general intention, that the issue should take as heirs; for both intentions cannot exist together, unless the last intention, manifested by the use of the word heirs, &c. is negatived by words explanatory of the sense in which they were used, and not by words which merely show a life estate was designed for the first taker. The cases upon this point are numerous; no words or |