(5om^U Ham Btl^aal Eibtarg 
 
Cornell University Library 
 KF 569.S53 
 
 ».1 
 
 Leading cases in the law of reai proper! 
 
 3 1924 018 796 098 
 
The original of tiiis book is in 
 tine Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924018796098 
 
LEADING CASES 
 
 LAW OF REAL PROPERTY 
 
 DECIDED m THE AMERICAN COURTS. 
 
 I^itll $aU$ 
 
 GEOEGE SHARSWOOD, LL.D., 
 
 AND 
 
 HENRY BUDD, 
 
 OF THE PHILADELPHIA EAR. 
 
 VOL. I. 
 
 PHILADELPHIA: 
 M. MTJUPHY, 
 
 LAW BOOKSELLEE, PUBLISHER, AND IMPORTER, 
 
 No. 715 Sansom Stkeet. 
 
 1883. 
 
copykightbd 
 By M. MUEPHY. 
 
 1882. 
 
 w^^t Xi^ -^^:M 
 
 J J. FAGAN t SON, *^| 
 
 ELECTROTTPERS, PHILAD'A. ^ 
 
 \^ ny'l 3^ 
 
 3S3 
 
 PHILADELPHIA : 
 
 COLLINS, PRINTER. 
 
TO THE MEMOEY 
 
 OF 
 
 TitE HONOEABLE PETEE McCALL, 
 
 THE CHRISTIAN GENTLEMAN AND ERUDITE LAWYER, 
 
 WHO GAVE DURING HIS LIFETIME 
 
 AN EXAMPLE OF ALL THE HIGH AND NOBLE QUALITIES WHICH 
 
 SHOULD DISTINGUISH A MEMBER OF THE BAR, 
 
 THIS BOOK IS DEDICATED 
 
 BY 
 
 THE EDITOKS, 
 
 OXE OF WHOM WAS HIS FELLOW-STUDENT AND 
 
 LIFE-LONG FRIEND, AND THE OTHEE 
 
 ENJOYED THE PBIVILEGE OF 
 
 BEING HIS PUPIL. 
 
PREFACE. 
 
 As remarked by Judge Hare and Mr. Wallace in tlie pref- 
 ace to American Leading Cases, the title "Leading Cases" 
 cannot be applied with the same accuracy of expression to a 
 collection of American decisions as to a similar collection of 
 English ; and while, perhaps, an American leading case, in 
 the strict sense, except upon a constitutional question, is an 
 impossibility, yet it cannot be denied that certain cases de- 
 cided in American courts have had practically a leading 
 effect through their influence, although denied that authori- 
 tative weight which characterizes a leading case in England ; 
 or that certain cases may be found amongst those decided by 
 American courts which present the principles of law bearing 
 upon certain subjects in a peculiarly clear and useful manner. 
 
 A collection of such cases is what the editors of the present 
 work have endeavored to make, to which they have added 
 notes upon the subjects which the cases have been chosen to 
 illustrate. It is believed that these notes will be found useful ; 
 they are, at least, the result of a most laborious examination 
 of the cases cited in them, coupled with an endeavor to present 
 the principles found in such cases in as logical an order as 
 possible. 
 
viii Preface, 
 
 It will be observed that tbe notes as well as tbe leading 
 cases are emphatically American, English cases being cited 
 but occasionally, and only by way of illustration or to sustain 
 a principle generally recognized as a component part of the 
 law in this country, for which the editors have been unable 
 to find any decided case upon this side of the Atlantic. 
 
 Such is the general character of the work, which is now 
 submitted to the profession in the hope that it may not have 
 been written in vain. 
 
 The editors desire to express their acknowledgments to 
 Charles H. J. Chormann, Esq., of the Philadelphia Bar, for 
 his careful labor in the preparation of the table of cases. 
 
 Philadelphia, December, 1882. 
 
ADDENDA ET CORRIGENDA. 
 
 Page 362. 8th line from foot, read 28 N. J. Eg. instead of 28 N. Y. Eq. 
 
 " 376. 13th line from foot, insert Pennsylvania, 1 Pur. Dig. p. 463, 
 pi. 22. 
 
 " 514. 7th line fi-om foot, insert the words "this right" between 
 "exercise" and "by treaty." 
 
 6th line from foot, strike out the period after "full" and 
 insert a comma. 
 
TABLE OF CONTENTS. 
 
 Estates in Fee-Simple, Creation of. 
 
 PAGE 
 
 Adams v. Ross 11 
 
 Clayton v. Clayton 34 
 
 Note 53 
 
 Estates Tail. 
 
 Allin and Wife v. Bunce 74 
 
 Lessee of Hall «. Vandegeift . ... 75 
 Note 92 
 
 Estates on Condition. 
 
 Gray v. Blanchaed 115 
 
 Note 123 
 
 Conditional Limitations. 
 
 Den ex dem. Smith v. Hance 151 
 
 Propeietoes of Chuech in Brattle Square v. Grant . 168 
 Note 186 
 
 Estates for Life. 
 
 Jackson ex dem. Murphy v. Van Hoesen .... 191 
 
 Note 194 
 
 ix 
 
X Table of Contents. 
 
 Estate hy the Curtesy. 
 
 Jackson ex dem. Swaetwout v. Johnson . . . .218 
 Wells and "Wells v. Thompson . . ... 247 
 Note 258 
 
 Estate in Dower, 
 
 Thompson v. Moreow ........ 291 
 
 Note. . * , ' 296 
 
 Rights of Alien as to Real Property . 
 
 Inglis v. The Sailor's Snug Haeboe 412 
 
 Note 493 
 
 Talle of Cases Cited, 527 
 
 Index 561 
 
IN THE 
 
 LAW OF KEAL PROPEETY. 
 
 Fee Simple— Creation of: By Deed; by Devise. 
 
 ADAMS V. ROSS. 
 
 Court of Errors and Appeab of New Jersey. Argued, February Term, 1860; 
 decided, June Term, 1860. 
 
 [Reported in 1 Vroom 505.] 
 
 1. A deed made by A. B., in consideration of love and affection and of 
 
 one dollar, to C. D., wife of E. P., in which the said A. B. doth grant, 
 bargain, sell, alien, remise, release, and confirm certain real estate to 
 the said C. D., during her natural life, and at her death to her children 
 which may be begotten of her present husband : to have and to hold the 
 said premises unto the said C. D. for and during her natural life, and at 
 her death to her children which may be begotten of her present hus- 
 band, E. E., and containing covenants of seizin and general warranty, 
 which are made by the grantor for herself and her heirs with the grantee 
 and her heirs and assigns, conveyed to the grantee an estate for life 
 only, with a remainder vested in G. H., a child of the said C. D., for 
 life, subject to open, and let in afterborn children to the same estate. 
 
 2. The estate created was not an estate in fee or in fee tail, there being in 
 
 the grant no words of inheritance or procreation. 
 
 3. The covenants warranting the premises to C. D. and her heirs did not 
 
 enlarge the estate, nor pass by estoppel a greater estate than that ex- 
 pressly conveyed. 
 
 4. A warranty attaches only to the estate granted, or purporting to be 
 
 granted. If it be a life estate, the covenantor warrants nothing more ; 
 the conveyance being the principal, the covenant the incident. 
 6. In the construction of a deed, the question is, not what estate did the 
 grantor intend to pass, but what estate did he pass by proper and apt 
 words. Ko expression of intent, no amount of recital showing the 
 intention, will supply the omission. 
 
 11 
 
12 Adams v. Eoss. 
 
 6. A mortgage made after the conveyance, and while the said C. D. was 
 
 a minor, created no valid charge on the estate against the said C. D. 
 
 7. The grant made to C. D. was within the provisions of an act for the 
 
 better securing the property of married women, passed March 25th, 
 1852, the deed being subsequent to the act. 
 
 8. The husband not entitled to courtesy in the premises on surviving his 
 
 wife, the grantee. 
 
 Error to the Supreme Court. 
 
 On the 9th September, 1854, Anna V. Traphagen conveyed, by 
 deed, to Catharine Ann "V. B. Adams, wife of Alonzo W- Adams, certain 
 lots and real estate, situate in Jersey City, for and in consideration of 
 natural love and affection and of one dollar paid. The terms used in 
 the deed were, " grant, bargain, sell, alien, remise, and release and con- 
 firm, unto Catharine Ann V. B. Adams, wife of Alonzo W. Adams, 
 all that, etc., situate, etc., for and during the natural life of the said 
 Catharine, and at her death to her children which may be begotten of 
 her present husband, Alonzo W. Adams." 
 
 The deed contained covenants of seizin, for quiet enjoyment, against 
 encumbrances, for further assurance and of warranty, which covenants 
 were made by the grantor, for herself and her heirs, with the grantee, 
 her heirs and assigns. 
 
 When the deed was made, the said Catharine Ann V. B. Adams was 
 a minor J and on the 13th day of October, being still a minor, she 
 joined her husband in a mortgage on the premises to William B. Eoss, 
 to secure the payment of the sum of $6000. 
 
 A part of the premises was afterwards, under the authority of law, 
 condemned for the benefit of the Erie Eailway Company, the assessed 
 value of which, being $3061, was brought into the Supreme Court for 
 distribution among the parties, according to their respective rights, the 
 money representing the whole value of the land taken. 
 
 The parties interested were heard before the court, in June term, 
 1858, on an application of Eoss, the mortgagee, to be paid his mort- 
 gage out of the money in court. 
 
 The main question was the construction to be given to the deed 
 made by Aima Y. Traphagen to Catharine Ann V. B. Adams, on the 
 9th September, 1854. 
 
 After full argument by A. C. M. Pennington for the applicant, J. F. 
 Randolph for Alonzo W. Adams, and A. 0. Zahriskie for Anna V. B. 
 
Adams v. Ross. 13 
 
 Traphagen and others, the opinion of the court was delivered as fol- 
 lows, by 
 
 Vredenbuegh, J. — The Erie Eailroad Company, in 1856, took, 
 under tiie provisions of their charter, the west half of lots No. 1, 2, 3, 
 and 4, of block 159, on Mangin's map of Jersey City. The jury 
 assessed their value at $3061, which has been brought into this court. 
 The charter vests the entire interest in the land in the company. This 
 money represents the whole fee simple. 
 
 The applicant claims to have the whole of this money paid over to 
 him. This is resisted by Miss Traphagen, Mr. and Mrs. Adams, and 
 in behalf of the minor children of Mr. and Mrs. Adams, who all 
 claim to have held difFerent interests in the land. This money repre- 
 sents the land, and it is manifest that we should dispose of it, as nearly 
 possible, as if it were the land itself. 
 
 First. As to the claim of Mr. Ross. In its support he shows that, 
 at and prior to the 9th of September, 1854, the land belonged in fee to 
 Miss Traphagen ; that she, on that day, made a deed of bargain and 
 sale, or a covenant to stand seized to uses to said Mrs. Adams, as he 
 contends, in fee, and that Mrs. Adams and her husband, on the 12th 
 October, 1855, gave a mortgage on this property, duly acknowledged to 
 him, for $6000. The validity of this mortgage is contested upon the 
 admitted ground that at its date Mrs. Adams was a feme covert and 
 under age. 
 
 First, what interest was conveyed to Ross by virtue of Mrs. Adams' 
 execution of the mortgage ? 
 
 There can be no doubt but that at the common law the deed of a 
 married woman was absolutely void, so much so that she could plead to 
 it non est factum. Make v. Lawshee, 4 Zab. 613 ; Moore v. Mahe, 2 
 Dutcher 577. It never was a case like mere infancy, where the title 
 passed, but could be avoided by matters subsequent. Nor is this dis- 
 ability removed by the statute (Nix. Dig. 122, § 4) authorizing the 
 acknowledgment of deeds by manned women, because the power con- 
 ferred by that act is, by its express terms, limited to femes covert over 
 age. 
 
 But even supposing, as Mr. Ross contends, that this mortgage is not 
 
 void, but only voidable, still she is represented by counsel claiming now 
 
 here to avoid this mortgage. This is the first and only time and place 
 
 she has had an opportunity so to do, and if not allowed now by us, the 
 
 2 
 
14 Adams v. Ross. 
 
 right is gone forever. We tliink, by her coming forward on this occa- 
 sion, and claiming the money at our hands, she, so far as her rights are 
 concerned, avoids the mortgage, and that consequently Mr. Eoss has no 
 rights in this land by virtue of its execution by her. 
 
 Second. The next question is, what rights did Mr. Eoss acquire by 
 reason of Mr. Adams' execution of the mortgage ? 
 
 Without inquiring now what was Mrs. Adams' interest in the land 
 under the deed from Miss Traphagen, had Mr. Adams, at the date of 
 the mortgage, any present right to the rents and profits, so as to entitle 
 him to the interest of this money during the lifetime of his wife ? The 
 deed from Miss Traphagen is dated the 9th September, 1854. He 
 would have been entitled to the rents and profits as husband during his 
 life, if his wife's interest lasted so long, but for the operation of the act 
 for the better securing of the property of married women, passed 
 March 25th, 1852, Nix. Dig. 466. This act being in force when the 
 deed was made by Miss Traphagen to Mrs. Adams, Mr. Adams' interest 
 is subject to its operation. 
 
 Does this act so alter the common law as to take away from the hus- 
 band all interest during his wife's life in lands conveyed to her by deed 
 of bargain and sale, or by a covenant to stand seized to uses? The 
 third section of this act, the only one applicable to the case before us, 
 provides that " it shall be lawful for any married female to receive, by 
 gift, grant, devise, or bequest, and hold to her sole and separate use, as 
 if she were a single female, real and personal property, and the rents, 
 issues, and profits thereof, and the same shall not be subject to the dis- 
 posal of her husband, nor be liable to his debts." Mrs. Adams mar- 
 ried, and acquired her interest in this land, after the passage of this 
 statute, by a deed from Miss Traphagen, in consideration of natural 
 love and affection and of one dollar. 
 
 This act applies only to land received by the wife by gift, grant, de- 
 vise, or bequest. 
 
 This was certainly not a devise or bequest. The only question is, 
 was this deed a gift or grant withm the meaning of the legislature. 
 
 It is contended, by Mr. Eoss, that the legislature intended to use the 
 terms gift and grant in the strict technical sense, and that the convey- 
 ance here is one of bargain and sale, or a covenant to stand seized to 
 uses, operating by virtue of the statute of uses, and not either a gift or 
 grant. 
 
Adams v. Ross. 15 
 
 But did title legislature intend to use these terms, gift or grant, in 
 their narrowest technical sense? I think not, but to embrace in the 
 terms gift and grant, devise or bequest, all the modes of acquiring 
 property except, perhaps, by descent. This language is used by the 
 legislature in 1852. Gift and grant had then long ceased to be under- 
 stood, even by the profession, and in all ordinary instruments, even 
 such as deeds, in their ancient technical meaning. In practice for many 
 years, females as well as others had ceased receiving lands by the strict 
 technical forms of gift or grant. It cannot be intended that the legis- 
 lature meant to restrict the rights of married women to lands received 
 in a mode which had fallen into disuse. 
 
 In the state of New York, the term grant had for many years, tech- 
 nically as well as in common language, included all modes of acquiring 
 lands by deed or conveyance. It is true that there this was done by 
 special statute. But still this had only the more strongly fixed this 
 meaning in the public mind. 
 
 The Vermont statute provides, that any rights in real estate which a 
 /erne covert may acquire, by gift, grant, devise, or inheritance, dming 
 coverture, shall not be liable for the debts of the husband. 
 
 These words, gift or grant, came up for construction in the case of 
 Peek V. Walter, 26 Verm. Rep. 85, wherein Redfield, Chief Justice, in 
 delivering the opinion of the court, says : " It is very apparent that the 
 statute was intended to embrace all rights in real estate which the wife 
 shall acquire during coverture. It would be a very nice, and, as it 
 appears to me, a very unintelligible construction of this statute to limit 
 the word grant to its narrowest technical import. It evidently was in- 
 tended to apply to all conveyances by deed which were not gifts." 
 That case was, like the present, a mortgage of the wife's property by 
 the husband, the wife not joining. 
 
 In our statute, by the term grant, the legislature intended all the 
 ordinary modes of acquiring propei-ty by deed, whether operating by 
 force of the statute of uses or not ; that by long usage such had become 
 not only the popular, but also the technical meaning of the term. 
 
 It follows, that at the time of the execution of this mortgage by Mr. 
 Adams, he had no present interest in this land which he could convey. 
 
 The next question is, had Mr. Adams, when he executed this mort- 
 gage, any future or contingent interest which would pass by the mort- 
 gage, and give Mr. Ross any future interest in this money ? 
 
16 Adams v. Ross. 
 
 This depends upon whether Mr. Adams was tenant by the courtesy 
 inchoate. There are children bom of the marriage. 
 
 This brings us to the question, what estate Miss Adams had in this 
 land by virtue of the deed from Miss Traphagen ? 
 
 If she had only a life estate, then Mr. Adams never could be tenant 
 by the courtesy, and consequently Mr. Eoss never had any interest in 
 this money. But if Mrs. Adams had an estate either in fee or in tail, 
 then it is contended that, notwithstanding the act for the better security 
 of married women, Mr. Adams was tenant by the courtesy initiate. 
 
 This deed is dated September 9th, 1854, and purports to be made 
 between Miss Traphagen, party of the first part, and Catharine Adams, 
 wife of Alonzo Adams, party of the second part, in consideration of 
 natural love and affection and of one dollar, and to grant, bargain, sell, 
 alien, remise, release, convey, and confirm unto the said pariy of the 
 secbnd part, for and during her natural life, and at her death to her 
 children which may be begotten of her present husband, the said lots 
 (describing them by numbers and bounds), together with all the appur- 
 tenances, and the reversion and reversions, remainder and remainders, 
 rents, issues, and profits thereof, and also all the estate, right, title, in- 
 terest, property, possession, claim, and demand whatsoever, as well in 
 law as in equity, of the said party of the first part of, in, and to the 
 same ; to have and to hold the above described premises unto the said 
 party of the second part for and during her natural life, and at her 
 death to her children which may be begotten of her present husband, 
 Alonzo Adams. 
 
 Then follows — 1st. A covenant by Miss Traphagen, for herself and 
 heirs, with the said party of the second part and her heirs and assigns, 
 of seizin and of full power to convey in manner aforesaid. 
 
 2d. That the said party of the second part, her heirs and assigns, may 
 at all times hereafter peaceably and quietly hold the premises without 
 any let, suit, trouble, molestation, eviction, or disturbance of the said 
 party of the first part, her heirs or assigns, or of any other person law- 
 fully claiming. 
 
 3d. That they are free from encumbrance. 
 
 4th. That the said party of the first part and her heirs, and all per- 
 sons claiming under them, shall and will, at any time or times here- 
 after, upon the request of the party of the second part, her heirs and 
 assigns, make all such further conveyances for the better vesting and 
 
Adams v. Ross. 17 
 
 confirming the said premises in and to the said party of the second part, 
 her heirs and assigns forever, as by the said party of the second part, 
 her heirs or assigns, shall be reasonably required. 
 
 6th. That the said Traphagen and her heirs, the said premises unto 
 the said party of the second part, her heirs and assigns, against the said 
 party of the first part and her heirs, and against all persons whomso- 
 ever lawfully claiming, shall and will warrant and forever defend. 
 
 Upon the construction of this deed, Mr. Eoss contends that it con- 
 veys to Mrs. Adams either an estate in fee simple or in fee tail, and 
 that he consequently is entitled, as representing Mr. Adams, to the in- 
 terest of this money after her death during the life of Mr. Adams, if 
 he survives her. It is contended, on behalf of Mrs. Adams, that the 
 deed gives her a fee simple, and that she is entitled to all the money. 
 It is contended, on behalf of the children of Mrs. Adams, that the 
 deed gives her only a life estate, or at most a fee tail, and that they are 
 entitled to the money after her death ; and it is finally contended, by 
 Miss Traphagen, that the deed only conveys a life estate to Mrs. Adams, 
 and at most, after her death only, a life estate to her children, and that 
 the money goes, after her and their deaths, back to Miss Traphagen. 
 
 Upon the construction of this deed, I am of opinion that the estate 
 thereby conveyed to Mrs. Adams was a fee tail special, as if the lan- 
 guage had been, to Mrs. Adams and the heirs of her body by her pres- 
 ent husband to be begotten. That by the term children which may 
 be begotten of her present husband, the grantor meant, and that the 
 law will so construe it, heirs which may be begotten of her present 
 husband. 
 
 No one can for a moment doubt, upon reading this deed, that it was 
 the intent of the grantor that it should belong to Mrs. Adams during 
 her life, and after her death absolutely to her children. Are we forced 
 by any strict principles of law to defeat this intent ? In the first place, 
 suppose the deed had used the word heirs, instead of the word children, 
 the deed would then have read to Mrs. Adams for and during her nat- 
 ural life, and at her death to her heirs which may be begotten of her 
 present husband. It has never been a question, from the time of 
 Shelly's case, that this would have given Mrs. Adams a fee tail special ; 
 that the words during her life, did not make it a life estate, or change the 
 estate from what it would have been if the language had been to Mrs. 
 Adams and to her heirs of her body by her present husband. Inserting 
 2* B 
 
18 Adams v. Eoss. 
 
 the words " during her life " gave her nothing more or less than she 
 would have had without them. 
 
 Are we prohibited, by unjdelding principles of law, from giving 
 eifect to what the whole document and the nature of the transaction 
 shows to have been the intention of the grantor ? 
 
 In the first place, the estate conveyed to Mrs. Adams is not a fee sim- 
 ple. The words of conveyance are, to Mrs. Adams during her natural 
 life, and after her death to her children by her husband. This ex- 
 pressly limits the estate to less than a fee simple. 
 
 It is contended that, by the covenants, it is warranted to her and her 
 heirs generally. But the covenants cannot be used to enlarge the 
 estate. They only defend the estate granted, whatever that may be, 
 except so far as the general warranty may operate by way of estoppel, 
 of which we shall speak hereafter. 
 
 Nor is the estate granted changed by calling this conveyance a cove- 
 nant to stand seized of uses. The covenant in this deed would have 
 the same effect if we call it a covenant to stand seized to uses, as if we 
 call it a bargain and sale. These covenants, if the conveyance is a 
 covenant to stand seized to uses, would only warrant and defend the 
 uses declared — ^they could not enlarge the uses. If we strike out of this 
 conveyance the pecuniary consideration, it would then be technically a 
 covenant to stand seized to uses ; if we strike out the consideration of 
 love and affection, it is then a deed of bargain and sale, and we may 
 call it, as it is, either the one or the other, or both, as may best effect the 
 intent of the parties. But the quantity of estate conveyed, in either 
 case, must depend upon the operative words of conveyance or the 
 declarations of the use, and not upon the covenant defending the quan- 
 tity of estate conveyed. 
 
 The only remaining question is, does this conveyance give Mrs. 
 Adams an estate for life or an estate in fee tail special ? 
 
 If the deed, instead of saying to Mrs. Adams during her natural life, 
 and after her death to her children by her present husband, had said to 
 Mrs. Adams during her natural life, and at her death to her heirs by 
 her present husband, there can be no doubt but that her estate would 
 have been a fee tail special. The whole difficulty arises from using in 
 the terms of grant the word children, instead of the word heirs. 
 
 It is contended, in behalf of the children, that although the grantor 
 used the word children, yet that she by that term meant heirs, and that 
 
Adams v. Eoss. 19 
 
 the legal construction of the deed is to read it as if she had used that 
 term. 
 
 1st. By the term children, did she mean heirs? 
 
 In the first place, under our statute of descents, the term children by 
 her present husband, is identical in legal effect with the term heirs of 
 her body by her present husband, and designates the same objects. It 
 is not here as it would be under the law of primogeniture, where the 
 oldest male only would be heir. Her heirs by her present husband 
 must be her children, and her children must be her heirs. In the next 
 place, the children are not parties to the deed. They had not then yet 
 been bom. 
 
 In the next place, although the covenants cannot be used to enlarge 
 the estate, yet they may be used to show in what sense the words in the 
 conveying part of the deed were intended. 
 
 From these covenants it is demonstrated that, by the term children 
 by her present husband, the grantor intended the heirs of her body by 
 her present husband. 
 
 Thus the grantor covenants that the party of the second part and her 
 heirs shall at all times hereafter peaceably occupy and hold the prem- 
 ises. She could not intend, by this covenant, that heirs generally should 
 enjoy it, but only those who would take under the operative words of 
 conveyance, and that she used the words children by her present hus- 
 band for, and really meant by it, the heirs of her body by her present 
 husband. So also as to the covenant for other assurance ; so also with 
 respect to the clause of general warranty. 
 
 The covenants are intended not to enlarge but to defend the quantity 
 of estate conveyed. The covenants have reference, consequently, to the 
 words of conveyance, and they are to be construed together. By the 
 term children, in the conveying part, she includes certain heirs, and by 
 the term heirs, in the covenants, those heirs which are children by her 
 present husband. By the covenants she defends the estate to all the 
 heirs in terms, but which heirs she meant is defined in the conveying 
 clause to be children by her present husband. 
 
 The very nature of the transaction shows that it could not have been 
 the intent that, if Mrs. Adams had children by her present husband, 
 the property should revert, at the deaths of those children at some 
 remote period, to Miss Traphagen, but that, under our statute regu- 
 
20 Adams v. Eoss. 
 
 lating estates tail, the property would vest in the children in fee imme- 
 diately at their birth. 
 
 Such being the undoubted intention of the grantor, are we forced to 
 defeat this intent, and say that the term children was only intended to 
 be a designatio personce ? * , 
 
 There can be no doubt if this had been a will, and it had appeared 
 by the context clearly that the testator by the term children meant heirs, 
 that the courts would have given effect to the intention. 
 
 Is it otherwise with respect to deeds ? 
 
 2 Blackstone 107, says the word " heirs " is necessary in a grant or 
 donation in order to make a fee or inheritance. For if land be given 
 to a man forever, or to him and his assigns forever, this vests in him 
 but an estate for life. This very great nicety about the insertion of the 
 word heirs is a relic of feudal strictness, by which it was required that 
 the form of the donation should be strictly preserved. The personal 
 abilities of the donee were originally supposed to be the only induce- 
 ment to the gift, and subsisted, only for the life of the donee, unless the 
 contrary were clearly expressed. But this rule is now softened by many 
 exceptions. 
 
 The reasons of the rule have long since ceased, and with it also ought 
 to cease the law. Conveyances have long since ceased to be looked 
 upon as gifts. 
 
 But it is apparent from the passage, that by it was not meant that 
 there existed any magic in the word heirs or in the sound represented 
 by that combination of letters. Otherwise no deed in a foreign lan- 
 guage could convey a fee. But the writer merely means to say, that in 
 a grant to make a fee the grantor must use language by which it appears 
 that he meant to include the line of inheritance, of which the word 
 heirs was the most apt and well-defined expression. But he does not 
 intend to say that any other language, by which it clearly appears that 
 the grantor intended to embrace the line of inheritance in the grant, 
 will not pass a fee. 
 
 If the word heirs is used, that prima Jade carries the fee, unless 
 the contrary expressly appears ; if the term children is used, it must 
 clearly appear from the instrument that the grantor did not mean by 
 that term certain individuals, but the same thing as heirs or the entire 
 line of descent. But the term children, like the Latin hoeres, or any 
 term in a foreign language, is capable of ti'anslation, and the grantor 
 
Adams v. Ross. 21 
 
 has the right in the instrument creating the grant to translate his own 
 language. It is a question of translation. 
 
 The rule is, that it must appear upon the face of the instrument that 
 the grantor intends to pass the inheritance, which may be done best by 
 the term heirs, but may be equally done by any sound or word or 
 phrase which the instrument shows the grantor used as a synonym for 
 it. Thus the word successors, in a grant of land to a sole corporation, 
 carries the fee, because it shows the intention of the grantor to convey 
 the inheritance. 
 
 Thus Mr. Hays, in his principles for expounding dispositions of real 
 estate, 7 ^Law Library 77, remarks : " That the rules of construction 
 freely permit the use of the words heirs of the body or issue in the lim- 
 ited sense of children, arid the word children in the comprehensive 
 sense of the words ' heirs of the body.' Those rules,* or rather the 
 fundamental principles of legal interpretation, require only a clear ex- 
 planation to justify a departure from the ordinary meaning, imposing 
 on those who would translate the term the onus of producing an express 
 warrant under the hand of the author of the gift." 
 
 So in his 8th proposition, developing the principles on which the 
 construction of gifts to heirs special depend, the same author remarks : 
 " It is immaterial, with reference to the preceding propositions, whether 
 their heirs special are described under the technical denomination of 
 heirs of the body, or under the informal denomination of heir of the 
 body, issue, descendants, son, sons, children, for all these may be used 
 as sjmonymous with heirs in tail, or any other term apparently designed 
 to comprehend the whole line of succession." The rule does not speak 
 of the word heirs abstractedly, nor suppose any special virtue to reside 
 in that word ; but when, by the application of the ordinary rules of in- 
 terpretation, the testator is found to have used a term which, though 
 properly a word of purchase, or of an ambiguous character, yet, taken 
 in connection with the context, is of as large import as heirs of the 
 body standing xmexplained, it follows that he has indicated that course 
 and mode of succession which the writers on the rule have so anxiously 
 marked as attracting and requiring its application. 
 
 2 Preston on Estates 1, says : " To the creation of an estate in fee by 
 deed, it is requisite that the land should be limited to an individual and 
 his heirs, but that many exceptions are to be noticed. Thus, the word 
 heirs need not be in the grant at all, as where one grants land to an- 
 
22 Adams v. Eoss. 
 
 other as fully as they were granted to him; or where one enfeoffs 
 another, and it is re-enfeoffed in the following language: you have 
 given me these lands ; as fully as you have given them to me, I assure 
 them to you." These authorities show that the fee passes not because 
 the word heir is in the deed, but because it appears by reference that it 
 was the intention of the grantor to include the whole line of descent in 
 the grant. 
 
 So in p. 7, the same author, quoting 3 Buls. 128, remarks : " It will 
 be sufficient that it should appear from the context that the grantee and 
 his heirs are to have the benefit of the grant. Thus, where a grant was 
 of rent to A., and afterwards that he and his heirs should distrain for it, 
 this limitation of distress enlarged the estate, and made it a fee simple." 
 
 So in p. 47, speaking of estates tail, he says : " Words of reference 
 will be sufficient to create an estate tail, therefore a gift to A. and the 
 heiiB of his body, remainder to B., in eadem, forrria, gives B. an estate 
 tail. So where a gift is made in frank marriage." Again, the author 
 says, an estate tail even in a deed may, contrary to the general rule of 
 law, arise from necessary implication. Thus, a gift to a man without 
 any limitation to his heirs, but with a provision that the land shall 
 revert to the donor, or remain to another if the donee shall die without 
 heirs of his body, will afford ground for the construction that the donee 
 is to have the land to him and the heirs of his body, because the land 
 is not to revert or remain over until there shall be a failure of these 
 heirs. And as Perkins, and, after him. Chief Justice Holt, states the 
 reason to be quod voluntas donatqris searnidam formam in carta doni sui 
 manifeste expressa de cetero observdur. The true reason is, that the 
 intent of the donor appeared in express words in the deed, and the im- 
 plication was a necessary one. Again, in page 484, the author says : It 
 is sufficient in creating an estate tail that the words of the clause of 
 limitation, or some part of the deed that refers to the clause or explains it, 
 or a reference by this clause to some other part of the same deed, or 
 even to a distinct instrument, should confine the gift to the heirs of the 
 body of the donee. It is not by the rule of law prescribed that the 
 qualification of the gift should, in direct words or by express terms, be 
 in the immediate clause of the gift to the donee. All that is required 
 is that, by the frame and context of the deed, the gift should be re- 
 strained to the heirs of the body, and not extended to the heirs gener- 
 ally. The point depends on the rule, that all the clauses included are 
 
Adams v. Eoss. 23 
 
 to be taken into consideration together, and construction made on the 
 several parte. The entire instrument must be construed by ite parte, 
 so that every clause, and every word in every clause, may have effect. 
 Whenever it is to be collected in construction on the clause of imme- 
 diate gift, or from a clause which introduces the limitation of another 
 estate, or refers to another part of the same instrument, or to another 
 instrument, that the gift under consideration is not to extend the bene- 
 fit of the limitation to any heirs besides those which are of the body 
 of the devisee, the word heirs will be restrained to mean heirs of the 
 body. 
 
 Now, construing this deed upon these principles, is it not apparent, 
 and a necessary implication from the different clauses of the deed iteelf, 
 first, that it was the intention to grant an estate to Mrs. Adams and her 
 heirs, and in the second place, that those heirs were the heirs of her 
 body by her present husband ? 
 
 Take, for instance, the second covenant : the grantor therein, for her- 
 self and her heirs, covenante with Mrs. Adams and her heirs that the 
 party of the second part and her heirs shall forever quietly hold the 
 premises. And so of the other covenante. 
 
 As the covenant is only intended to defend the estate granted, is it 
 not a necessary implication that the grantor intended to use in the 
 granting clause words that would create in the grantee an estate of in- 
 heritance, and the object of the covenant was to defend that inheritance ? 
 The words in the granting clause and in the covenant have direct refer- 
 ence to each other, and mutually translate each other. The children by 
 her husband were her heirs. 
 
 Using the term heirs in the covenant shows that by children, in the 
 granting, clause, was intended heirs, and the term children, in the grant- 
 ing clause, shows that by the term heirs, in the covenant, was intended 
 heirs of her body by her present husband. 
 
 In the case of Parkman v. Bowdoin, 1 Sumner's Eep. 359, the lan- 
 guage of the wUl was, " I give the land to my son James and his law- 
 ful begotten children in fee simple forever ; but in case he should die 
 without children lawfully begotten, to my son A. and to his lawfully 
 begotten children in fee simple forever." At the time of making this 
 will James had no children. It was held that James took an estate tail. 
 Judge Story, in giving his opinion, says the devise must be construed as 
 meaning heirs of the body. 
 
24 Adams v. Ross. 
 
 Numerous cases are referred to by him where children in devises have 
 been construed to mean heirs of the body. It is true that these are 
 cases of devises, but I cite them as showing that, in legal language, chil- 
 dren may be construed as meaning heirs of the body. Here the term 
 children is defined and demonstrated by the covenants to mean heirs of 
 the body, by necessary impKcation from the covenants and by the direct 
 reference of the covenants to the words of grant. Even if the word 
 heirs must be in a deed, no authority prescribes that they can be only in 
 the granting clause. The whole deed and all its parts are to be con- 
 strued together to give to the term heirs, wherever found in the instru- 
 ment, their proper force. 
 
 In MiMs V. Carter, 22 Verm. Eep. 104, the court remarks, that though 
 it may be true that the covenants in a deed may not enlarge the estate, 
 yet when it becomes a question of construction as to what is granted, 
 they may well be resorted to to help the construction, and this upon the 
 principle, that reference is to be had to the whole deed, and that every 
 part is to have operation, if possible. 
 
 But again, in TerriU v. Taylor, 9 Cranch 57, Story, in delivering the 
 opinion of the court, says, the present deed did not operate by way of 
 grant to convey the fee ; for the term heirs is not in the deed, but the 
 covenant of general warranty binding the grantors and their heirs, and 
 warranting the land to the church wardens and their successors forever 
 (who could not hold lands) may well operate by way of estoppel to con- 
 firm to the church and its grantees the beneficial estate in the land. 
 
 The case of Shaw v. Galbraith, 7 Barr. Ill, was one upon a deed 
 like the present, without words of inheritance in the granting clause, 
 but containing the clause of general warranty to the grantee, his heirs 
 and assigns. The court, in delivering their opinion, say, that without 
 undertaking to determine whether the fee simple is transferred, we are 
 of opinion the grantor is estopped from denying the title. 
 
 It is well settled that a general warranty operating by estoppel passes 
 the estate. If this be so, the general warranty in this deed passed the 
 estate by virtue of the term heirs in a covenant to Mrs. Adams and her 
 heirs. But what heirs? Not her heirs general, for that would be 
 against the express language of the clause and grant, but by every rule 
 of construction the term heirs, in the covenant, would be limited to 
 those heirs named in the granting clause, to wit, her children by her 
 present husband. The heirs named in the covenant must mean and be 
 
Adams v. Ross. 25 
 
 restricted to the heirs of her body by her present husbaaid, and this 
 would give a fee tail special to Mrs. Adams. 
 
 I confess myself at a loss to put any other construction upon this 
 deed. If we call the estate of Mrs. Adams a fee simple, we must reject 
 the words during her life, and after her death to her children, in fact 
 the whole clause of conveyance ; if we call it a life estate, we must strike 
 out the word heirs in all the covenants. But if we decide that the cove- 
 nants and the clause of conveyance refer to, explain, and construe each 
 other, and that the estate is a fee tail, all its parts harmonize, and the 
 intention of the instrument inanifestly carried out, the wife gets her life 
 estate, the husband his inchoate courtesy, and the children the inher- 
 itance. 
 
 It was urged, upon the argument in behalf of Mr. Ross, that Mrs. 
 Adams, under this deed, had the fee simple ; but in the view we have 
 taken of the case, this inquiry is immaterial as regards him, as he takes 
 precisely the same interest whether Mrs. Adams has an estate in fee or 
 in tail, he being in either case tenant by the courtesy initiate. 
 
 But the question becomes material as between Mrs. Adams, her chil- 
 dren, and Miss Traphagen. 
 
 It was contended, on behalf of Mrs. Adams, that the deed gave her 
 a fee simple, because this was void as to the children on account of its 
 being a deed of bargain and sale, and they not being in existence at the 
 date of the deed, and so no pecuniary consideration could move from 
 them, and the clause of conveyance gave it to her during her natural 
 life, and also all the remainders and reversions, and thg,t she take, all 
 after her life as a remainder. But these terms are no broader than tio 
 say, to her forever. It would still be but a life estate for want of 
 words of inheritance. 
 
 It is contended, in behalf of Miss Traphagen, that considering this 
 deed as one of bargain and sale, Mrs. Adams has only a life estate, and 
 the children of Mrs. Adams take as purchasers ; and that as none of 
 them were bom at the date of the deed, it is void, as to them, for want of 
 consideration moving from them. But if we are right in the conclusion, 
 that under this deed the estate of Mrs. Adams is a fee tail special, then 
 this question cannot arise, because then the children would hold by 
 descent, and not as purchasers. 
 
 Again, it is said, by Miss Traphagen, that considering this deed as a 
 covenant to stand seized to uses, it, in the first place, is void entirely, be- 
 3 
 
26 Adams v. Eoss. 
 
 cause Mrs. Adams was too remotely comiected to raise the consideration 
 of blood or marriage. However this may be, this deed is undoubtedly 
 good as a deed of bargain and sale, and if by it a fee tail is vested m 
 Mrs. Adams, it makes no difference whether it will operate as a covenant 
 to stand seized. 
 
 Upon the whole case, then, we conclude that this deed is a conveyance 
 whereby the grantee, Mrs. Adams, became seized in law of such an estate 
 in the laads thereby conveyed as imder the statute of 13th Edward the 
 first, called the statute of entail, is an estate in fee tail, and that conse- 
 quently upon her death, under our statute (Nix. Dig. 196, § 11), the lands 
 go to and will be vested in the children of Mr. Adams in fee. 
 
 One more question is raised by Miss Traphagen. She contends that 
 all the issue of Mrs. Adams may die before their mother, and that in 
 that event the reversion is in her. But it appears, by the case, that Mrs. 
 Adams had children before this land was condemned for the railroad 
 company. This section of the act provides that upon the death of the 
 tenant in tail the lands shall go to and be vested in the children of such 
 grantee, and if any child be dead, the part which would come to him 
 or her shall go to his or her issue in like manner. This language is 
 identical with that of the 10th section of the same act, providing in 
 case any lands shall hereafter be devised to any person for life, and 
 at his death to go to his heirs, then upon the death of his devisee the 
 lands shall go to and be vested in the children of such devisee in fee, 
 and if any child be dead, the part which would come to him to go to 
 his issue. 
 
 The question is whether, under the language of these sections, the 
 estate of the children vest at their birth or at the death of the parent. 
 The language of the 10th section has received the judicial construction 
 by the Court of Appeals of this State in the case of Den v. Hopper, 2 
 Zab. 699, wherein that court decided that, within the 10th section, the 
 children took vested estates at their birth, subject to be defeated only so 
 far as to let in subsequently born children. I can see no difference, in 
 this respect, between the two sections, and think the decision in Den v. 
 Hopper controls this question. 
 
 This follows from what we have said, that by the deed in question, 
 Mrs. Adams is entitled to the use of the land during her natural life 
 without the interference of her husband ; that after her death her hus- 
 band, if he survives her, will be tenant by the courtesy, and that the bal- 
 
Adams v. Ross. 27 
 
 ance of the interest on the lands belongs absolutely in fee to Mrs. Adams' 
 children. 
 
 The money is in court, and it is our duty to pay it out, as nearly as 
 may be, as if it were the land itself. I know of no better way than to 
 let the value of Mrs. Adams' interest be calculated by the clerk, and 
 said amount paid over to her. The same as respects Mr. Adams' 
 interest, and the amount paid over to Mr. Ross. That the balance be 
 invested under the supervision of the clerk, and the interest paid annu- 
 ally to the guardian of the children of Mr. Adams until the further 
 order of this court. 
 
 An order was made conforming to the views of the court, and 
 thereupon a writ of error was brought by Ross and Traphagen to re- 
 move the order into this court for revision. 
 
 The cause was argued at February term, 1860. 
 
 For the plaintiff in error, A. 0. Zabriskie. 
 For the defendant, J. P. Bradley. 
 
 At June term, 1860, the following opinion was read by 
 
 Whelpley J. — This writ of error brings up for review the judg- 
 ment of the Supreme Court, giving a construction to a deed, dated the 
 9th of September, 1854, between Anna V. Traphagen, of the iirst part, 
 and Catharine Ann V. B. Adams, wife of Alonzo Whitney Adams, of 
 the second part, by which the grantor, in consideration of natural love 
 and affection and of one dollar, conveyed to the grantee the premises in 
 the deed described. The operative words are grant, bargain, sell, alien, 
 remise, release, convey, and confirm unto the said party of the second 
 part, for and during her natural life, and at her death to her children 
 which may be begotten of her present husband : to have and to hold 
 the above described premises unto the said party of the second part for 
 and during her natural life, and at her death to her children which may 
 be begotten of her present husband, Alonzo W. Adams. 
 
 The deed contains covenants of seizin, for quiet enjoyment, against 
 encumbrances, for further assurance and of warranty. 
 
 These covenants are made by the grantor for herself and her heirs 
 with the party of the second part, her heirs and assigns. 
 
28 Adams v. Eoss. 
 
 Mrs. Adams, at fihe date of the conveyance to her, was a minor. On 
 the 12th October, 1855, she, with her husband, executed a mortgage to 
 secure the payment of $6000, in one year from date, upon the premises 
 conveyed to her. She was then nineteen. The mortgage was to Eoss, 
 the applicant in the Supreme Court. 
 
 The Erie Eailway Company, under the provisions of an act of the 
 legislature, took a part of the land in question, and hold it in fee simple. 
 The value of the land taken has been ascertained at $3061 ; that is now 
 in the Supreme Court, to be awarded to the parties entitled to it, and 
 who they are must depend upon the true construction of the deed. 
 
 What, then, are the rights of Mrs. Adams, her husband and chil- 
 dren, one having been born of the marriage since the conveyance ; and 
 what, if any, are the rights of Eoss, the mortgagee, to the money in 
 court? 
 
 The Supreme Court held, that the estate granted by the deed was an 
 estate in fee tail special in Catharine Adams and the heirs of her body 
 by her present husband ; that her husband was entitled to courtesy ; that 
 the mortgage to Eoss on the interest of Mrs. Adams was void as to her, 
 but was a lien upon the estate of her husband, in case he survived her. 
 
 This decision was reached by interpreting the word " children," in 
 the deed, as equivalent " to heirs," calling in the covenants in aid of 
 that interpretation, as throwing light upon what the coiu^; called the 
 intention of the grantor. 
 
 The Supreme Court was right in holding the first estate conveyed to 
 Mrs. Adams not a fee simple ; the express limitation of the estate to 
 her during life, and after her death to her children, forbade any other 
 conclusion. The covenant, warrantmg the land to her and her heirs 
 general, cannot enlarge the estate, nor pass by estoppel a greater estate 
 than that expressly conveyed. A party cannot be estopped by a deed, 
 or the covenants contained in it, from setting up that a fee simple did 
 not pass, when the deed expressly shows on its face exactly what estate 
 did pass, and that it was less than a fee. Eawle on Cov. for title 420 ; 
 Bkmchard v. Brook, 12 Pick. 67 ; 2 Co. Lit. 385, b. 
 
 Lord Coke expressly says : but a warranty of itself cannot enlarge 
 an estate ; as if the lessor by deed release to his lessee /or life, and war- 
 rant the land to the lessee and his heirs ; yet doth not this enlarge his 
 estate. 
 
 Justice Vredenburgh, in his opinion, admits this to be law. He 
 
Adams v. Ross. 29 
 
 says, although the covenantB cannot be used to enlarge the estate, yet 
 they may be used to show in what sense the words in the conveying 
 part of the deed were used. What is that but enlarging what would 
 otherwise be their meaning? If without explanation they are insuffi- 
 cient to pass the estate, does not the explanation enlarge their operation ? 
 
 The learned judge, in his elaborate opinion, says : from these cove- 
 nants, it is demonstrated that, by the terms children by her present hus- 
 band, the grantor iatended the heirs of her body by her present hus- 
 band. It follows, from this argument, that although the conveying 
 part of the deed may not contain sufficient to convey the estate as a 
 fee simple, for example, yet that if the covenants show an intent to 
 pass a fee simple, it will pass. 
 
 The argument is, that the words of conveyance and covenant must 
 be construed together. If the covenants look to the larger estate, that 
 will pass upon the intent indicated. Children are said to be equivalent 
 to heirs, because she warranted to her heirs ; and the heirs are said to 
 be not heirs general, because she called them children. 
 
 The inconsistency between the conveyance and covenant shows mis- 
 take in the one or the other. The safest rule of construction is that 
 propounded by the Supreme Court ; that the quantity of the estate con- 
 veyed must depend upon the operative words of conveyance, and not 
 upon the covenants defending the quantify of estate conveyed. 
 
 Starting with that premise, it seems difficult, nay impossible, to reach 
 the conclusion, that the covenants are to be looked to in the interpreta- 
 tion of the conveyance,, as such. 
 
 The covenants only attach to the estate granted, or purporting to be 
 granted. If a life estate only be expressly conveyed, the covenantor 
 warrants nothing more. The conveyance is the principal, the covenant 
 the incident. If they do not expressly enlarge the estate passed by the 
 operative words of the deed, I cannot perceive upon what sound prin- 
 ciple of construction they can have that effect indirectly by throwing 
 light on the intention of the grantor. In the construction of a deed 
 of conveyance the question is, not what estate did the grantor intend to 
 pass, but what did he pass by apt and proper words. If he has failed 
 to use the proper words, no expression of intent, no amount of recital, 
 showing the intention, will supply the omission, although it may pre- 
 serve the rights of the party under the covenant for further assurance 
 or in equity upon a bill to reform the deed. 
 
30 Adams v. Ross. 
 
 The object of the covenants of a deed is to defend the estate passed, 
 not to enlarge or narrow it. To adopt, as a settled rule of interpreta- 
 tion, that deeds are to be construed like wills, according to the presumed 
 intent of the parties making them, to be deduced from an examination 
 of the whole instrument, would be dangerous, and, in my judgment, 
 in the last degree inexpedient. It is far better to adhere to the rigid 
 rules established and firmly settled for centuries, than to open so wide 
 a door for litigation, and render uncertain the titles to lands. The ex- 
 perience of courts in the construction of wills, the difEiculty in getting 
 at the real intent of the pariy, where imperfectly expressed, or where 
 he had none ; the doubt which always exists in such cases, whether the 
 court has spelt out what the party meant, all combine to show the im- 
 portance of adhering to the rule, that the grantor of a deed must ex-, 
 press his intent by the use of the necessary words of conveyances, as 
 they have been settled long ago by judicial decision and the writings 
 of the sages of the law. Upon this point, it is not safe to yield an 
 inch ; if that is done, the rule is effectually broken down. Where shall 
 we stop if we start here ? 
 
 Littleton says : tenant in fee simple is he which hath lands or tene-: 
 ments to hold to him and his heirs forever. For if a man would pur- 
 chase lands or tenements in fee simple, it behooveth him to have these 
 words ia his purchase : " to have and hold to him and his heirs." For 
 these words, " his heirs," make the estate of inheritance. For if a man 
 would purchase lands by these words, " to have and to hold to him 
 forever," or by these words "to have and to hold to him and his 
 assigns forever," in these two cases he hath but an estate for life, for 
 that there lack these words, " his heirs," which words only make an 
 estate of inheritance in all feofftnents and grants. 
 
 " These words, ' his heires,' doe not only extend to his immediate 
 heires, but to his heires remote and most remote, born and to be born, 
 sub quihus voeabulis ' haredibus suis ' omnes hmredes, propinqui compre- 
 hendimtwr, et remoti, nati et nasdturi, and hcsredum appellatione veniwrd, 
 hceredes hceredvm in infinitum. And the reason wherefore the law is so 
 precise to prescribe certaine words to create an estate of inheritance, is 
 for avoiding of uncertainiy, the mother of contention and confusion." 
 Co. Lit., vol. 1, 1 a, 8 6; 1 Shep. Touch. 101 ; Com. Dig., tit. Estate 
 A, 2 ; Preston on Est. 1, 2, 4, 5 ; 4 Cruise's Dig., tit. 32, c. 21, c. 1. 
 
 There are but two or three exceptions to this rule. The cases of sole 
 
Adams v. Eoss. 31 
 
 and aggregate corporations, and where words of reference ai'e used " as 
 fully as he enfeoffed me." A gift ia frank marriage, etc., which are to 
 be found stated ia the authorities already cited. 
 
 These exceptions create no confusion ; they are as clearly defined and 
 limited as the rule itself. 
 
 The word " heirs " is as necessary in the creation of an estate tail as 
 a fee simple. 1 Co. Lit. 20, a; 4 Cruise's Dig., tit. 32, c. 22, § 11 ; 4 
 Kent's Com. 6 ; 2 Bl. Com. 114. 
 
 This author sets this doctrine ia clear light. He says : As the word 
 heirs is necessary to create a fee, so, in further limitation of the strict- 
 ness of feodal donation, the word body or some other word of procrea- 
 tion, is necessary to make it a fee tail. If, therefore, the words of ia- 
 heritaace or words of procreation be omitted, albeit the other words are 
 inserted ia the grant, this will not make an estate tail, as if the grant 
 be to a man, and his issue of her body, to a man and his seed, to a man 
 and his children or offspring, all these ai'e only estates for life, there 
 wanting the words of inheritance. 
 
 The rule in Shelley's case, that when the ancestor, by any gift or 
 conveyance, takes an estate of freehold, and in the same gift or convey- 
 ance an estate is limited either immediately or mediately to his heirs 
 in fee or in tail, that always in such cases the word heirs are words of 
 limitation, and not of purchase, 1 Rep. 93 ; 4 Cruise's Dig., c. 23, § 3, 
 tit. 32, requires the use of the word heirs to briag it in operation. 
 
 No circumlocution has been ever held sufficient. It is believed no 
 case can be found where this rule has been held to apply, unless the 
 word heirs has been used in the second limitation. 
 
 Neither the researches of the learned judge who delivered the opinion 
 of the Supreme Court, nor those of the very diligent counsel who ar- 
 gued the case here, have produced a case decided in England or in any 
 State of this Union abiding by the common law, where, in a conveyance 
 by deed, the word children has been held to be equivalent to heirs. 
 That this has been determined in regard to wills is freely conceded, but 
 that does not answer the requisition. The reasoning of the Supreme 
 Court is, to my miad, entirely unsatisfactory. In the administration 
 of the law of real estate, I prefer to stand super antiquas vias, stare 
 decisis; to maintain the. great rules of property, to adopt no new dogma, 
 however convenient it may seem to be. The refined course of reasoning 
 adopted in the face of so great a weight of authority rather shows what 
 the law might have been, than what it is. 
 
32 Adams v. Eoss. 
 
 I am utterly unprepared to overturn the common law, as understood 
 by Littleton, Coke, Shepherd, Cruise, Blackstone, Kent, and all the 
 judges who have administered it for three centuries, and to adopt the 
 dogma, that intention, not expression, is hereafter to be the guide in the 
 construction of deeds. That would be as unwarrantable as dangerous. 
 
 Under this deed, Mrs. Adams took an estate for life^ which was not 
 enlarged by the subsequent limitation to a fee tail. - The remainder 
 vested in Anna Adams, the child of the marriage, for life, subject to 
 open and let in afterborn children to the same estate. 
 
 The deed operated as a covenant to stand seized. The proper and 
 technical words of such a conveyance are, stand seized to the use of, 
 etc. ; but any other words will have the same effect, if it appear to have 
 been the intention of the parties to use them for that purpose. The 
 words bargain and sell, give, grant, and confirm, have been allowed so 
 to operate. 4 Cruise, tit. 32, c. 10, § 1, 2. 
 
 By such a covenant, an estate may be limited to a person not in esse, 
 if within the considerations of blood or marriage. Fearne on Rem. 
 288; 1 Eep. 154, a; 1 Preston on Est. 172, 176; 4 T. Eep. 39, Doe 
 V. Martin. 
 
 This deed, on the face of it, expresses the considerations of natural 
 love and affection, as well as the money consideration of one dollar. 
 
 It follows, from these considerations, that Adams is not entitled to 
 courtesy in the lands on surviving his wife. The mortgage to Ross cre- 
 ated no valid charge on the estate against Mrs. Adams, she being a 
 minor when it was executed. 
 
 Mrs. Adams' interest in the land was subject to the provisions of the 
 act for the better securing the property of married women, passed March 
 25th, 1852 ; the deed to her was after this act passed. 
 
 This was clearly a gift or grant, within the meaning of the act. The 
 legislature did not intend to limit the benefits of the act to property 
 conveyed by a deed operating as a gift or grant ; all the ordinary modes 
 of acquiring property by deed were intended by the use of the terms 
 gift, grant. The reasoning of Justice Vredenburgh upon this point is 
 conclusive. Upon the determination of the respective life estates, the 
 land reverts to Miss Traphagen. 
 
 The judgment of the Supreme Court must be reversed. The money 
 in court must be invested for the benefit of Mrs. Adams for life, and 
 after her death for the benefit of the surviving children of the mar- 
 
Adams v. Eoss. 33 
 
 riage, in equal shares, during their respective lives, and at their deaths 
 respectively ; their several shares must be paid to Miss Traphagen, or 
 if she be then dead, to her heirs or devisees. 
 
 Judges Combs, Green, Risley, Van Dyke, Wood, Coenelison, 
 Haines, and Swain concurred in reversing the order of the Supreme 
 Court. 
 
 For affirming — None. 
 
 "Whereupon the following order or judgment was entered : 
 " This cause having been argued at the last term of this court, by 
 the counsel of both parties, upon the reasons assigned for reversal, and 
 the court having inspected the record and proceedings, and duly consid- 
 ered the same, and being of opinion that the deed executed by Anna V. 
 Traphagen to Catharine Ann V. B. Adams for the lands out of which 
 the sum paid into court arose, conveyed to the said Catharine Ann V. 
 B. Adams an estate for life only, and that her husband, Alonzo W. 
 Adams, is not entitled to any courtesy or any other estate therein ; and 
 that, after the death of the said Catharine Ann V. B. Adams the same 
 would go to the children begotten of her body by her husband, Alonzo 
 W. Adams, equally to be divided, if more than one, for the life of each 
 of said children respectively, and that the reversion thereof remains in 
 the said Anna V. Traphagen : it is ordered, adjudged, and decreed, 
 that the judgment of the said Supreme Court be reversed, set aside, and 
 for nothing holden ; and that the record be remitted to the Supreme 
 Court, with directions to cause the sum paid into court to be invested 
 under the control and direction of said court, and that the interest 
 thereof, during the life of the said Catharine Ann V. B. Adams, be 
 paid to her for her separate use, and at her death be paid to her chil- 
 dren begotten on her by her husband, Alonzo W. Adams, in equal 
 shares, if more than one, for their respective lives, and at the death of 
 such children, respectively, the principal sum be paid to the said Anna 
 V. Traphagen. On motion of ^. 0. Zabriskie, of counsel with plain- 
 tifiPs in error." 
 
 C 
 
34 Clayton v. Claytok. 
 
 CLAYTON V. CLAYTON. 
 
 Supreme Court of Pennsylvania, July 22, 1811. 
 
 [Reported In 3 Binney 476.] 
 
 In Error. 
 
 The testator devised "unto S. E. the granddaughter of his sister, and to 
 her children, t\ie. plantation they then lived upon, for the use of her the 
 said S. E. during her life, and immediately after her decease, to be 
 equally divided among the surviving children of her the said S. E. " He 
 gave a legacy of £10 to his heir at law, and £40 to each of the children 
 of his heir. Held that the children of S. E. took but an estate for life. 
 
 In ejectment in the Common Pleas of Bucks, by John Clayton the 
 plaintiff below, judgment was entered in his favor upon the following 
 case, which by agreement was brought up by writ of errbr. 
 
 Richard Clayton deceased, being seized in fee of a tract of land con- 
 taining five hundred acres in the township of Southampton in the county 
 of Bucks, of which the lands in the declaration are part, on the 15th 
 of November 1770 made his last will and testament bearing date the 
 same day and year, and afterwards on the 16th of the same month and 
 year, duly made a codicil thereto, by which will he devised as follows : 
 " I give unto my nephew Richard Clayton, the son of my brother John 
 Clayton, ten pounds lawful money aforesaid. I give unto the children 
 of the said Richard Clayton by his wife, each and every one of them, 
 £40 lawful money aforesaid, to be put out to interest by my executors 
 for their use until they respectively arrive to the age of twenty-one 
 years. / give and bequeath unto Sarah Evans, wife of James Eoans, and 
 granddaughter of my sister Margaret Jones, and to her children, the plan- 
 tation they now live upon, being the same tract of land I bought of Jacob 
 Jones, containing one hundred and seventy-one acres, for the use of her 
 the said Sarah Evans during her life, and immediately after her decease 
 to be equally divided among the swrvimng children of her the said Sarah 
 Evans." 
 
 The codicil contained the following clause. " As for and concerning 
 the plantation I have bequeathed unto Sarah Evans, wife of James 
 Evans, for the benefit of her the said Sarah Evans and her children, 
 
Clayton v. Clayton. 35 
 
 my will is that the timber thereof shall be preserved, and not destroyed 
 by any person or persons whatsoever, firewood and fencing, being for 
 the use of tRe said plantation, excepted." 
 
 The testator died seized in the same month, without cancelling or 
 altering the said will or codicil. 
 
 Sarah Evans, in the said will named, had at the time of the making 
 thereof,4awful issue five children living, to wit, Eichard, Enoch, James, 
 Sarah, and Elizabeth, who afterwards intermarried with Jonathan Clay- 
 ton, Jr., the defendant After the death of the testator, the said Sarah 
 Evans entered and was possessed, and after residing thereon for some 
 years, died in possession during the lifetime of her said five children, 
 who immediately after her death entered and were possessed. Shortly 
 after, to vdt, in June, 1789, Sarah the daughter of the said Sarah Evans 
 died intestate and without issue, and on the 3d of August, 1793, the 
 four surviving children, to wit, Richard, Enoch, James, and Elizabeth 
 Avith her husbyid, Jonathan Clayton, Jr., by deeds mutually executed, 
 made partition among themselves of the said plantation, by which, a 
 tract of twenty-nine acres thirteen perches, was released and confirmed 
 to Jonathan Clayton, Jr., and Elizabeth his wife, and the heirs of Eliza- 
 beth, as her purpart. The lands in the declaration are a part of this 
 tract. Jonathan Clayton and Elizabeth his wife entered and were pos- 
 sessed, and in the month of May, 1809, Elizabeth died leaving lawful 
 issue. 
 
 Richard Clayton the testator died without issue ; but in his lifetime 
 he had an only brother, John Claj^ton, who died before Mm, leaving 
 lawful issue Richard his son and heir at law, who survived the testator, 
 and was also his heir at law and a legatee in the said will of ten pounds. 
 The said Richard the second, afterwards in the year 1772, died, leaving 
 lawful issue John Clayton his eldest son, the plaintiff, Jane, Elizabeth, 
 Hannah, Rachel, and Dorothy, daughters. On the 18th of August, 
 1809, and prior to the commencement of this suit, the plaintiff made 
 an actual entry in the lands in the declaration mentioned, claiming 
 them as heir at law to his great uncle Richard the testator ; and cut off 
 a small ash tree, and left notice of the entry, &c., with the defendant. 
 
 The defendant is in possession of the lands in the declaration men- 
 tioned. 
 
 The question for the opinion of the Court, is whether the children 
 of Sai-ah Evans took an estate in fee simj;)le, or only an estate for life. 
 
36 Clayton v. Claytok. 
 
 If for life, then judgment to be entered for the plaintiff, if in fee simple, 
 then for th^ defendant. 
 
 Bich for the plaintiff in error, argued in favor of a fee simple, which 
 he said the testator intended to give to the children of Sarah Evans, as 
 was obvious from many circumstances in the will. The governing rule 
 in the interpretation of wills is the intention of the testator. "He is 
 regarded by the law as inops oonsiMi; as wholly unacquainted with 
 technical language ; as not at all versed in the artificial limitations of 
 estates; and therefore with infinite propriety it exempts him from the 
 necessity of doing more than plainly expressing his meaning, which if 
 not contrary to the rules of law, it will uniformly execute. Nay, for 
 the purpose of ascertaining this meaning, even where it is not plain 
 upon first view, courts will sift the entire will, and will understand its 
 language, not as lawyers, but as ordinary men. Wood's Inst. 299 ; Shep. 
 Touch. 434; 2 Black. Comm. 381, note 12 ; Holmes y. Maywill, 2 Show. 
 137 ; Strong v. Oammin, 2 Bur. 770 ; JBrownsword v. Edwards, 2 Ves. 
 247 ; Frogmorton v. Holyday, 3 Burr. 1622 ; Bridgwater v. BoUon, 2 
 Salk. 267 ; Grayson v. Atkinson, 1 Wils. 334 ; Bowes v. Blackett, Cowp. 
 238 ; Cowper v. Cowper, 2 P. Wms. 741 ; Ginger v. White, Willes 350 ; 
 Kennon v. M' Roberts, 1 Wash. 99 ; Shermer v. Shermer's Executors, 1 
 Wash. 271 ; Minnis v. Aylett, 1 Wash. 302 ; Boy v. Garneli, 2 Wash. 
 31 ; Lambert v. Paine, 3 Cranch 129. It is the remark of Judge John- 
 son, in the last cited case, that the fair presumption generally is, that he 
 who enters upon making a will, intends to make a full distribution of 
 everything he possesses; and in the present case, where there is no 
 residuary clause, and where the testator has throughout spoken the 
 common language, another presumption is equally fair, that he intended 
 to make a distribution of everything among the persons he named, and 
 did not expect that any latent interest was to spring up at a distant day 
 for the benefit of any one whom he did not name. At the date of the 
 will, Richard Clayton was his heir at law, to whom he gave "£10, and 
 to his children £40 each. Is it not perfectly clear to every mind that 
 he did not intend to give them more ? It is true that Loi'd Mansfield 
 in Hogan v. Jaokson, Cowp. 307, says this circumstance alone will not 
 exclude th6 heir ; but he admits it to have great weight in that case, and 
 coupled with others in this, it ought to be conclusive. Among other 
 circumstances with which it may be connected, is the limitation to Sarah 
 
Clayton v. Clayton. 37 
 
 Evans for life, which is not carried over to the devise to the children. If 
 it is to be generally presumed that a testator intends to give the whole, how 
 much more, when he has first created a life estate out of a plantation to 
 the parent, and upon her death gives it to her children. Ordinary men 
 do not think of creating successive life estates out of the same fee. 
 Another circumstance is the division which he directs to be immediately 
 made among the surviving children after the death of their mother. 
 The survivorship, and the division are both striking features. It is 
 very like Rose v. Hill, 3 Burr. 1881. The case however which is most 
 directly in point is WigfaU v. Brydon, 3 Burr. 1895. It was a devise 
 of real estate to A for life, and after his death to B for life, and after 
 the death of B to the children of the testatrix's cousin C and D, or such 
 of them as should then be living, share and share alike ; and if it should 
 happen that B should not be living at the death of A, then that property 
 should be divided ammigst tlie said children as aforesaid. Lord Mans- 
 field said that the estate was given to A expressly for life, and so to B. 
 If the testatrix had meant the like to the children she would have done 
 the like. Besides she directed the property to be divided amongst seven 
 children, that is, she intended the value to be divided among them, and 
 therefore meant a fee. It is not necessary that there should be either 
 words of limitation annexed to the devise, or even words indicating the 
 quantity of an estate, to convey a fee. In Moone v. Heaseman, Willes 
 138, there was neither. The testator gave all his lands in Cowfold to 
 his sister for life, and after her decease to her daughter S., paying to 
 each of her sisters E. and M. £500 apiece ; and if either of them should 
 die, the survivor was to take the legacy, and if S. should die, the testa- 
 tor willed that the farm should be divided between the survivors. The 
 court held that E. and M. were to take a fee in the event mentioned, 
 and "Willes Chief Justice evidently questioned Pettywood v. Cooke, Cro. 
 Eliz. 52, where the contrary had been ruled. Goodright v. Allin, 2 W. 
 Black. 1042, confirms Moone v. Heaseman. The case of French v. 
 MMhenny, 2 Binn. 13, seems indeed to conclude this case. The pecu- 
 liar features of that will exist in this, and in this is one which did not 
 exist there, the legacy to the heir at law. Nothing but a technical con- 
 struction can raise a difficulty ; and it is this halting between a strict 
 artificial interpretation of wills, and a liberal understanding of their 
 terms as unlearned men would use and understand them, that the con- 
 fusion in the construction of wills has arisen. The only way to avoid 
 4 
 
38 Clayton v. Clayton. 
 
 it, is to adopt and execute the intention, without regard to technical 
 language. 
 
 Condy and T. Ross for the defendant in error. We admit that the 
 intention must govern, but it must be a plain intention ; not such as the 
 private conjectures of a judge may raise, but such as no enlightened mind 
 can escape from. Whatever the law lays down as a rule of real 
 property, is a just rule ; the party holds and gives it according to that 
 rule ; and as well may any one part of an artificial system be censured 
 as another, since the whole depends upon policy and convenience, and 
 not upon any principle of justice or morality. Before the statute of 
 wills, lands were not devisable at all, except perhaps in the Saxon times, 
 or by particular custom. They became so generally by positive law. 
 Judicial decisions have established certain rules for the construction' of 
 such devises. They may be arbitrary rules, but they are not more so 
 than other parts of the system. They are simple and certain, and it is 
 of importance that when once settled they should never be shaken. 
 Estates are transferred under their authority ; family settlements are 
 bottomed upon them ; and however in particular cases a violation of 
 these rules may gratify the feelings- of an individual, yet it lets in such 
 a flood of uncertainty, that no one can tell what is the construction of a 
 wiU without resorting to a court, and even different courts may as well 
 disagree as different individuals. There is no safety but in an adherence 
 to judicial precedent, until the legislature, not the court, shall think fit 
 to destroy its authority. Two of these rules have been acquiesced in for 
 a century and a half. The one is, that where real property is devised 
 without limitation, it is but an estate for life, unless from other parts of 
 the will, an intention to give a greater estate is plainly to be inferred. 
 The other is, that the heir at law is not to be disLoherited without express 
 words, or necessary implication. Conjecture, ambiguity, uncertainty, 
 shall never disinherit him. Hayford v. Benlows, Ambl. 583 ; Harwood 
 V. Ooodright, Cowp. 92 ; Frogmorton v. Wright, 3 Wils. 418 ; Bowes v. 
 Blackett, Cowp. 235. In the present case the devise to the children of 
 Sarah Evans is without limitation ; and every argument in support of a 
 fee, is not only conjecture, but it is conjecture in direct opposition to 
 judicial precedent. The direction that the estate should be divided 
 among the children is nothing. In Diohens v. Marsfial, Cro. Eliz. 330, 
 the devise was of all the testator's lands and goods to E,. and M. his 
 children, equally to be divided between them ; and it was held to be an 
 
Clayton v. Clayton. 39 
 
 estate for life. In Pdton v. Banks, 1 Vern. 65, the testator devised lands 
 to his wife for life, and the reversion to A and B to be equally divided 
 betwixt them ; and yet A and B took but for life. Here was both the 
 express estate for life, and the division, but without any influence. In 
 Woodward v. Olassbrook, 2 Vern. 388, one devised several parcels of 
 land to his several children in tail, and if any of them should die before 
 twenty-one or unmarried, his part to go to the survivors ; yet the sur- 
 vivors took only a life estate in that part. Middleton v. Swain, Skinner 
 339, is a strong case to the point, that although you may see enough on 
 the will to make you think it probable that a fee was intended, yet prob- 
 ability will not do ; it must be a plain case. As to the pecuniary legacy 
 to the heir at law, the point occurred in Roe v. Bolton, 2 W. Black. 1045, 
 where it was not allowed the least weight. The authority of Pettiwood 
 v. Cook, has never been judicially shaken ; it is suppoi-ted by many later 
 cases. The only decision which countenances the argument for a fee is 
 Wigfall V. Brydon. But this case cannot be law ; and if it be, it has 
 been so explained as to be a very difierent case from the present. In 
 Burrow's report of the case, Lord Mansfield puts the decision upon the 
 estate's being small, a wasting estate, and not fit for division, which are 
 not very good reasons. However be they good.or bad they do not apply 
 here, where the estate is large and has been divided. In Wigfall y. Bry- 
 don it was a house and barn. The true groimd of that case was that the 
 devise amounted to a power to seU and divide. So it appears from Good- 
 right V. Patch. [Here the counsel read a manuscript note of that case 
 taken by Mr. Edward Tilghman in the King's Bench in June, 1773.] 
 French v. M'llhenny was a very different case. The will contained 
 introductory words showing an intention to dispose of everything, and 
 the devise in question was of all the plantation not before given to the 
 wife, which was a life estate. The codicil to the present will negatives 
 a fee, as it prohibits the devisees from cutting timber, which the testator 
 would not have done, had he intended an absolute estate of inheritance. 
 
 Tilghman C. J. — Eichard Clayton deceased, by his last will and tes- 
 tament dated 15th November, 1770, devised as follows. "1 give and 
 bequeath unto Sarah Evans wife of James Evans, and granddaughter of 
 my sister Margaret Jones, and to her chUdren, the plantation they now 
 live upon, being the same tract of land I bought of Jacob Jones, con- 
 taining one hundred and seventy-one acres, for the use of her the said 
 
40 Clayton v. Clayton. 
 
 Sarah Evans during her life, and immediately after her decease to be 
 equally divided among the sm-viving children of her the said Sarah 
 Evans." A legacy of £10 was given to the testator's nephew Richard 
 Clayton, who was his heir, and £40 apiece to each of his children. In 
 a codicil dated the day after the will, there is the following clause.' 
 " And as for and concerning the plantation I have bequeathed to Sarah 
 Evans wife of James Evans, for the benefit of her the said Sarah Evans 
 and her children, my will is that the timber thereof shall be preserved, 
 and not destroyed by any person or persons whatever, firewood and 
 fencing, being for the use of the said plantation, excepted." Did the 
 children of Sarah Evans take an estate for life or in fee simple ? That 
 is the point for our decision. 
 
 That the intention of the testator shall be carried into eifect, if not 
 contrary to law, even though such intention shall not be expressed in 
 the usual form, is a principle not to be controverted ; but such intention 
 must appear by the words of the will, and not by conjeeture. It is also 
 a settled principle, that a devise of land to a person in general terms, 
 without words of limitation, or any other words showing an intent to 
 give more than an estate for life, shall pass no more than an estate for 
 life, unless it can be fairly inferred from other parts of the will, that 
 more than an estate for life is intended. For instance, if the devisee is 
 ordered to pay a sum of money to another person, it may be fairly inferred 
 that a fee simple was intended, because otherwise the devise might turn 
 out to be an injury rather than a benefit. It has been often said, that it 
 may be reasonably supposed the testator intends a fee. simple in every 
 case, in which there are no expressions to the contrary ; that when a man 
 gives a thing, he means to give the whole property. But although this 
 has been said, it has always been added, that whatever conjecture the 
 judge might form as to the intention, yet he is bound by the principlfe 
 which in such cases has confined the estate to the life of the devisee. 
 When a principle of construction has been fixed, it becomes a rule of 
 property, and cannot be unfixed without violating the rights of property. 
 Purchases are made under the advice of counsel, and the opinions of 
 counsel are formed on the decisions of the courts. When the legislature 
 think proper to make alterations in the law, they take care to confine 
 them to future cases; but fluctuating decisions of courts of justice, have 
 a mischievous ex post facto operation. These considerations have satisfied 
 me, that I am not at liberty to indulge myself in conjecture, concerning 
 
Clayton v. Clayton. 41 
 
 the intention of the testator. The estate is not to be taken from the heir, 
 without an express devise, or words from which a clear implication may 
 be drawn. Let us apply these principles to the will in question. An 
 express estate for life is given to Sarah Evans, and immediately after her 
 death the estate is to be equally divided among her children. Here is a 
 devise in general terms to the children. What ground is there for 
 implying a larger estate ? It may be said, that inasmuch as their estate 
 is not to commence till after their mother's death, it may be supposed 
 that they were to take the fee, because otherwise they might derive but 
 little benefit. This remai'k would have little weight, if it was now made 
 for tiiefrst time. But after the numerous decisions, in which devises to 
 commence in possession after the expiration of a life, have been held to 
 convey no more than a life estate, it has no weight at all. Another cir- 
 cumstance relied on by the counsel for the plaintiff in error, is, that the 
 estate is to be divided among the children. If the estate had been 
 ordered to be sold, and the money divided, the absolute property would 
 have passed to the devisees. But it is the land which is to be divided. 
 The convenience with which the land may be divided, depends upon the 
 quantity of the land, and the nature and value of the improvements, 
 but by no means upon the quantity of estate given to the devisees. 
 In support of the argument drawn from the estate's being ordered to be 
 divided, Oates ex dem. Wigfall v. Brydon was cited, 3 Burr. 1895. 
 Lord Mkosfield in giving the opiuion of the court in that case, says, 
 " The testator gives to the seven children after the two lives, a wasting 
 property, share and share alike. Besides, she directs the house and 
 stable to be divided amongst the seven children, that is, they must be 
 sold and the produce divided." If the will in that case directed the 
 estate to be sold and the produce divided, no doubt the whole interest 
 passed; or if the estate was of such a nature, that it could not be 
 divided into seven parts, there would be some reason for saying that the 
 testator knew it must be sold, and must have so intended. But if that 
 was not the case, it will be difficult to reconcile this opinion of Lord 
 Mansfield with other decisions of good authority. In Peiton v. Banks, 
 1 Vern. 65, there was a devise to flie wife for life, with remainder to A 
 and B to be equally divided. It was held that A and B took an estate for 
 life. In the manuscript note of the case of GoodrigUt v. Patch, decided 
 in the Kiag's Bench 20th June, 1773, and shown to the Court by Mr. 
 Edward Tilghman, it is said that the case of Wigfall v. Brydon turned on 
 
42 Clayton v. Clayton. 
 
 the selling and dividing. And in Denn ex dem. Gashin v. Gashin, Lord 
 Mansfield speaking of Wigfall v. Brydon, says, " the ground the court 
 went upon, was, that from the nature of the estate, and the words used 
 by the testator, they amounted in fact to a direction to sell the estate and 
 divide the produce of it." Cowp. 659. Whether the court were warranted 
 in putting that construction on the will, it is unnecessary now to inquire, 
 because in the case before us, there is no ground for an argument of this 
 kind. There is no diificulfy about dividing, for the land has been actually 
 divided ; nor is there the most distant intimation of a desire that the 
 estate should be sold. French v. M'llhenny, 2 Binn. 13, decided in this 
 Court, was also cited. In that case the court were divided. A majority 
 were of opinion, that taking the whole will together, they could discover 
 an intent to give an estate in fee ; but I did not understand that any 
 change was intended to be made in the established principles of construc- 
 tion. Suffice it to say, that the expressions on which the court relied 
 there, are not to be found in the will of Richard Clayton. 
 
 The last and strongest argument in favor of a fee simple, is drawn 
 from the devise of £10 to the heir at law. This circumstance is worthy 
 of consideration. It affords some ground for supposing, that as £10 was 
 given it was intended that the heir should have tw more. But a doubt- 
 ful intention is not sufficient. The rule of law gives the estate to the 
 heir, unless the will takes it from him ; and in order to take it from him, 
 it must give it to some other person. Thus we are brought back to the 
 question, are there any words in this will, sufficient to convey more than 
 an estate for life to the devisees ? I can find none. If the testator had 
 expressly said, that the heir at law should have £10 and no more, I should 
 have thought his intention on the whole sufficiently clear, to give a fee 
 to the children of Sarah Evans. But the implication arising from a 
 small devise to the heir, without negative words added, has been ex- 
 pressly decided to be insufficient. In Wright on the- demise of Shaw v. 
 Russel, decided in the Exchequer in 1701, and cited by Justice Wright 
 in Gashin V. Gaskin, Cowper 661, there was a devise of Is. to the husband 
 of the heir, and yet the heir was held not to be disinherited. And in 
 subsequent cases, the same principle has been adopted, when there were 
 devises of a small sum to the heir himself. In such cases there is 
 plausible ground for conjecture^ that it was intended to disinherit the 
 heir, because we know, it is a common notion, that it is necessary to 
 give a shilling to the heir in order to cut him off. This notion is derived 
 
Clayton v. Clayton. 43 
 
 from the Roman law, by which a testament was said, to be inofficious, if 
 no mention was made of the heir. The decisions in these cases, all tend 
 strongly to confirm the principle, that the heir takes everything which 
 is not given away by express words or clear implication. The will of 
 Richard Clayton containing no such words, nor any ground for clear 
 implication, I am of opinion that the children of Sarah Evans took no 
 more than an estate for life. 
 
 The codicil is to be considered in conjunction with the will. I do not 
 think the direction about the timber very material ; but if it has any 
 operation, it is against a fee simple, because a direction that a devisee in 
 fee should not cut timber, would be inconsistent with the nature of the 
 estate, and therefore void. My reason for not thinking it very material, 
 is, that it is not clearly expressed to whom this direction is addressed, 
 whether to Sarah Evans or her children. 
 
 Yeates J. — 'the question before the Court rests on the true construc- 
 tion of the last will of Richard Clayton deceased, dated 15th November, 
 1770, and the codicil thereto dated the day following. The material 
 clauses are as follow. " I give and bequeath unto Sarah Evans, wife of 
 James Evans, and granddaughter of my sister Margaret Jones, and to 
 her children, the plantation they now live upon, being the same tract of 
 land I bought of Jacob Jones, containing one hundred and seventy-one 
 acres, for the xise of her the said Sarah Evans during her life, and 
 immediately after her decease to be equally divided among the surviving 
 children of the said Sai-ah Evans." In the codicil it is said, " And as 
 for and concerning the plantation I have bequeathed imto Sarah Evans, 
 wife of James Evans, for the benefit of her the said Sarah Evans and 
 her children, my will is, that the timber thereof shall be preserved, and 
 not destroyed by any person or persons whatsoever, firewood and fencing, 
 being for the use of the said plantation, excepted." There are no intro- 
 ductory words showing the intention of the testator to dispose of his 
 estaie, either by the will or codicil ; nor are there any residuary devisees 
 appointed by either instrument. The privileges out of the real estate 
 devised to the widow, are confined to her state of widowhood. Sarah 
 Evans the devisee died in the possession of the premises, leaving five 
 children, one of whom has died intestate. The four siirviving children 
 have made partition, and twenty-nine acres and thirteen perches have 
 been assigned to Elizabeth, who intermarried with the plaintiff in error, 
 
44 Clayton, v. Clayton. 
 
 as her full purpart and share of the lands devised as aforesaid. She is also 
 dead, and the suit is brought to recover the possession of the twenty-nine 
 acres and thirteen perches, by John Clayton, who has proved himself to be 
 the heir at law of the testator. The question to be decided, is, whether 
 the children of Sarah Evans named in the will, took an estate in fee 
 simple in the said plantation, or only an estate fto* life. 
 
 On the part of the plaintiff in error, it has been strongly contended, 
 that the intention of a testator as disclosed in his will, according to the 
 plain meaning of his words in their common sense and understanding, 
 is the paramount rule of construction; and that where the devise is 
 conformable to law, no technical expressions whatever are necessary to 
 effectuate his intent. All artificial rules are disclaimed ; and it is con- 
 fidently asserted that the compound construction of the common aecepta- 
 tion of term^s and the technical meaning, has been the cause of uncertainty 
 in the exposition of testaments. When a testator maltes his will, it must 
 be presumed that he means to dispose of all his temporal property ; and 
 this is strengthened by the circumstance of his not devising the residue. 
 Introductory words in a will are the mere creatures of the scrivener who 
 draws it ; and nothing can be inferred from the want of them. No man 
 of plain common sense on reading this will could hesitate in pronouncing, 
 that when the testator gave the plantation to Sarah Evans during her 
 life, and after her death to be legally divided amongst her surviving 
 children, his meaning was, that those children should take after their 
 mother's death, their several proportions thereof, absolutely and in fee 
 simple ; and this construction is fortiiied by a devise of £10 to Richard 
 Clayton, his nephew and heir at law at the time of his death, and to 
 each of his children £40. 
 
 The defendant's counsel fully admit, that the intention of the testa- 
 tor is the governing principle in the construction of wills and that there 
 is no magic in any particular form of words, whereby his meaning may 
 be effectuated ; though it is indispensably necessary that his intention 
 should be clear and manifest, from the expi'essions he has made use of. 
 Independently of human laws, there is no natural right of succession 
 to lands. The statutes of 32 Henry 8, c. 1, and of 34 and 35 Henry 
 8, c. 5, in England, gave the general power of aliening lands by will. 
 It is agreed, that great indulgence is given in the construction of wills, 
 the law considering the party in extremis et inops consilii. Though no 
 words of limitation are added to a devise of lands,' yet if there are. 
 
Clayton v. Clayton. 45 
 
 expressions of equal import, as the words /oreuer-, my estate, paying such 
 a sum of money, etc., the law will enlarge the gift accordingly. But 
 the settled rule is, that the heir at law is the favorite of the law and of 
 equity ; and is not to be disinherited without express words or necessary 
 implication. Ambl. 583. If the intention of the testator be doubtful, 
 whether the devisee shall take in fee or not, the rule shall take place. 
 Cowp. 92, 355 ; 3 "Wils. 418. Withoutj words of inheritance, an estate 
 for life only passes. Cro. El. 330. 
 
 By discarding settled rules of construction, and adjudged cases on 
 wills, a judicial tyranny will be established, and this branch of the law 
 be thrown into confusion and uncertainty. No counsel can advise his 
 client ; under a controverted will no man can purchase with safety. 
 
 Many cases occur in the books, where there is a devise to one for life, 
 the reversion over to others equally to be divided between them, and 
 the latter have been held to take an estate for life only. Pdton v. 
 Banks, 1 Vern. 65 ; Bowes v. Blackett, Cowp. 235. The words " share 
 and share alike " are held to be tantamount to " equally divided between, 
 them ; " and the word " share " was held to express the thing devised, 
 and not the quantity of the estate. Middleton v. Swain, Skin. 339, 
 which was affirmed in parliament. Show. Pari. Ca. 207. One devised 
 several parcels of land to his several children in tail, and if any of 
 them should die before twenty-one or unmarried, such child's part to 
 go to the surviving children ; adjudged, that the survivors should have 
 such share for life only. Woodward v. Glassbrook, 2 Vern. 388. 
 Devise of all my lands and goods after debts and legacies paid, to A 
 and B my children equally to be divided between them ; held that an 
 estate for life only passed to them in joint-tenancy. Dickinsy. Marshal, 
 Cro. El. 330. As to the legacy of £10 devised by the present will to 
 the heir at law, the Court of Common Pleas were clearly of opinion 
 that a small pecuniary legacy to the heir is not sufficient to exempt a 
 case from the general rule of law, which declares that a gift to a man 
 of lands, without expressing for what estate, vests only an estate for 
 Hfe. Eoe ex dem. Callow et al. v. Bolton, 2 Black. Eep. 1045. 
 
 The remark, that general introductory words, evincing a disposition 
 to dispose of all the temporal estate, are the mere acts of the scrivener, 
 either proves too much or nothing whatever. Assuredly the will is drawn 
 by him ; but if he does not with correctness reduce to writing the intent 
 of the deceased, or uses unapt and improper words, whose legal opera- 
 
46 CtAYTON V. Clayton. 
 
 tion is opposed to the will of the testator, what human tribunal governed 
 by known and fixed rules of decision, can apply the remedy ? 
 
 "When it is asserted, that the plain meaning of the will was to give 
 an estate in fee simple to the children of Sarah Evans in the lands in 
 question, it is presupposed that the rules of granting realty and personalty 
 are precisely the same, and that lands would pass with as little ceremony 
 as a horse or cow. This certainly would prostrate all judicial decisions. 
 At best however it is but guess and conjecture. Whoever drew the 
 will, had some faint idea of words of limitation. When devising the 
 negroes to the widow, he superadded the words " and to her heirs and 
 assigns;" and in devising certain lands to Jonathan Clayton, he 
 annexes the payment of a gross sum, which would clearly give a fee, 
 the same being inconsistent with a life esta,te in the premises. To this 
 may be subjoined the observation, that the restrictions imposed in the 
 codicil, as to the preservation of the timber on the plantation devised 
 to Sarah Evans and her children, are totally incompatible with the 
 latter taking a fee simple interest therein. Admitting however the 
 meaning of the testator herein to be problematical, the rule of law is 
 decisive against the pretensions of the plaintiff in error. 
 
 I feel no difficulty whatever in the decision of the present case, either 
 on principle or precedent. An act of the legislature (passed on the 28th 
 January, 1777,) has declared, that the common law and such of the 
 statute laws of England, as had theretofore been in force, except as is 
 thereafter excepted, shall be in force and binding on the inhabitants of 
 this State. The rule relied on by the plaintiff is frequently asserted in 
 the English books, which are evidence of the common law. This 
 court, and I think I may safely add, every other court of justice in the 
 government both before and since the American revolution, have adopted 
 it. In Bushby v. Bushhy, 1 Dall. 226, we find these expressions of 
 Shippen president of the Common Pleas. " The intention of the tes- 
 tator is said to be the pole star, to guide the construction of wills. But 
 there are two qualifications to this rule, 1st, that this intention must 
 not clash with the rules of law, and 2d, that where legal technical 
 terms are wanting, the intention to supply them must be clear and 
 manifest from the words and expressions in the will." I cannot see on 
 what grounds the judiciary would be authorized to change the strong 
 uniform current of decision, unless by the aid of the legislative branch. 
 
 But independently of the act of 1777, could we either with propriety 
 
Clayton v. Clayton. 47 
 
 or convenience to the public peace and safety, change the system of law 
 on this subject ? As to myself, I find the decisions of our own courts 
 an insuperable obstacle in my way ; and I frankly declare, that I am 
 not prepared to go the whole length of declaring independence of the 
 decisions of the English Courts, previous to the 4th July, 1776, 
 subjecting the construction of a will to technical rules. My habits, 
 grown rigid during the period of half a century of my life, imperiously 
 intei-diet the measure. I have been taught to consider those judicial 
 determinations as a system of refined wisdom matured by experience, 
 Avhich it would be highly dangerous now to unsettle. I view them as 
 establishing the landmarks of property, which it would be unjust now 
 to vary or remove. In a particular instance my individual wishes may 
 lead me to desire, that the devise was couched in different terms, in 
 order to accomplish my ideas of the supposed intent of the testator. I 
 will construe a will, and imply an intention not expressed therein, in 
 words particularly ; but I will not from arbitrary conjectiu-e, though 
 founded on the highest degree of probability, add to a will or supply 
 the omissions. I go as far as I can, when I repeat the language of an 
 English judge. " I will depart from the technical sense of words, to 
 effectuate the intention of a testator, as far as possible without violating 
 the rules of law." In matters of positive right, I must submit to and 
 follow those ancient and invariable maxims, qu<je relida sunt et tradita. 
 3 Bl. Com. 436. It is not of so much moment what the law is, as that 
 it should be known and settled. When this takes place every citizen is 
 bound to conform to it ; and when a case of seeming hardship occurs, 
 wherein I may think the will of a testator has been disappointed, I con- 
 sole myself with the reflection, sio voluit sed non dixit. It is most con- 
 genial to the spirit of a government of laws, that known rules should 
 determine the conduct of their tribunals of justice, and the steps of their 
 judges be measured. The observation applies with peculiar force to 
 the case of wills, wherein different and contradictory intents often 
 appear on the face of the same instrument, wherein the meaning is not 
 conveyed with any degree of precision, and the different events which 
 might take place have not been contemplated. In such instances, with 
 all the assistance we can derive from our books, we are thrown under 
 the greatest embarrassments ; but without it, shall we not according to 
 the ludicrous idea of Mr. Selden (untruly applied to a court of equity), 
 make the measure of the judge's foot, the rule of decision ? In my 
 
48 Clayton v. Claytok, 
 
 view of the ease, the utmost uncertainty and confusion must necessarily 
 be introduced by this rage of innovation. 
 
 The established rule is thus laid down by Lord Mansfield in Loveanes 
 on the demise of Mudge v. Blight et ux., Cowp. 355. " Where there 
 are no words of limitation, the court must determine in the case of a 
 devise aifecting real estate, that the devisee has only an estate for life ; 
 because the principle is fully settled and established, and no conjecture 
 of a private imagination can shake a rule of law. If the intention of 
 the testator is doubtful, the rale of law must take place ; and if so the 
 Court cannot find words in the will sufficient to carry a fee. Though 
 they should themselves be satisfied beyond the possibility of a doubt, 
 as to what the intention of the party was, they must adhere to the rule 
 of law." 
 
 The observations of the defendant's counsel abundantly satisfy my 
 mind that the intention of the testator to grant a fee simple to the 
 children of Sarah Evans in the lands in question, was at least doubtful ; 
 and the authorities they have cited fully confirm this remark. See also 
 Moone lessee o? Fagge v. Seaseman, Willes 141. 
 
 I am therefore of opinion that judgment should be entered for the 
 defendant in error. 
 
 Beackeneidge J. — The language of this will is not that of a learned 
 or half learned person, but evidently of the testator's own writing, with- 
 out a single word through the whole that savors of an affectation of sden- 
 tifie terms; for I consider the words " heirs and assigns " annexed to the 
 gift of the " negro boy " devised to the wife, as slipping in of course, 
 from having used it, or seen it used in a bond or promissory note, where 
 being unnecessaiy, we have it without any meaning, now that a note is 
 assignable by act of assembly, and the interest in the nature of it goes 
 to the executor, and not to the heir in the technical sense of the word. 
 It would have saved this trouble, if these words had been annexed to 
 the devise of the real estate ; and perhaps it would be no great strength 
 of construction, if we were to carry them forward in our minds, and 
 make use of them yvhen first warded. This is thought to be, when we 
 come to the devise of the "plantation to the wife of James Evans, and 
 granddaughter of his sister Margaret Jones, and to her children." But as 
 this might be considered a stretch beyond the indulgence shown to wills, I 
 shall uot insist upon it ; though at the same time if the testator thouo-ht 
 
Clayton v. Clayton. 4D 
 
 of the use of these terms " heirs and assigns " at all, I have no manner 
 of doubt, but that he thought tliat having put them in the writing once 
 at the beginning, they would serve to season it through the whole, and 
 qualify every bequest that was subsequently made. But I flatter 
 myself we shall be able to do without them, and be justifiable in 
 inferring a devise in fee simple from the terms that are used. I shall 
 take notice nevertheless of the other devises, " to his nephew, Richard 
 Clayton, the son of his brother, John Clayton, £10 ; to the children of 
 the said Richard Clayton, each and every one of them, forty pounds ; 
 to his nephew Jonathan Clayton, the son of his brother John, hii 
 mansion house, with the land thereunto belonging." Here are no words 
 of inheritance, more than in the case of other devises of personal 
 property ; and yet I cannot doubt but that he meant his nephew should 
 have the mansion house and land, out and out. It has not been ques- 
 tioned under this will but that he does so hold it. The plaintiif is the 
 descendant of the nephew Richard, to whom the devise of ten pounds 
 was made ; and to whose children a farther devise of forty pounds 
 each, which may fairly be considered as all that was intended that 
 stock ; yet it is one of these that now claims the estate in question against 
 another devisee. 
 
 But to come to the terms that are used in the devise under which the 
 defendant claims. These are found in the will, and in the codicil. But 
 before we undertake to consider these, let there be premised an observa- 
 tion on the history of the construction of wills. The power to devise 
 being given by statute, it came to the courts to construe wills as other 
 im^itings ; and why introduce a distinction in the construction of these, 
 and other writings ? "What distinction ? Why that the intention shall 
 govern, but that the same words which would be evidence of intention in 
 the case of a chattel, shall not evince in a case of real estate. Yet they 
 did not require the technical terms of a deed, but indulged the lay people, 
 who might be supposed to write their own wills, to a certain extent. 
 And why not to the whole extent of the proper language ? lAeentia 
 sumpta pudenter, it may be said ; and that it would be too great a stretch 
 at once to go so far. It would have been equally justifiable however, 
 and certainly more for the quiet of possessions. The rule ought to have 
 been, that unless something appears in the will from which a less estate 
 than a fee simple is given, the devise shall carry a fee. The rule is 
 otherwise ; viz., that something must appear, more than the mere giving 
 5 D 
 
i>0 Clayton v. Clayton. 
 
 the property, from whence it may be inferred that a fee simple was 
 intended. The mere naked words, I give the land, as in the case of a 
 personal chattel, will not suffice. It is true the decisions have brought 
 this to a very slight matter. Introductory words declaring an intention 
 to dispose of the whole worldly estate, to settle temporal affairs, etc. 
 Estate and even e^eefe have been considered ex vi termini as carrying a 
 fee. The word settle, certainly has. That I may not be thought to 
 speak without book, I cite the case, Barnard, Chancery Rep. 14; 8 
 Viner 230. I meant to have said, cite the books which refer to the 
 case. " What I have I intend to setUe in this manner." By the word 
 settle says the Lord Chancellor, the testator shows his intention to make 
 a settlement of the whole estate, and therefore a fee. He farther observes, 
 that " all cases depend upon their particular circumstances, and the 
 evidence of the testator's intention arising from these." This last sentence 
 is the best dictum that I have met with in the books ; for the taking 
 the relative situation of the testator and the devisees into view, the 
 branches of the family referred to in the will, and the provisions 
 made, in connection with the words of the devise, these may assist in 
 demonstrating the intention. But in this case, from the words of the 
 will in the devise itself, independent of circumstances, I can have no 
 doubt that a fee simple was intended. "The plantation for the use of the 
 sister's granddaughter during her natural life, and immediately after her 
 decease, to be equally divided amongst her surviving children." It could 
 not come to the children until after her decease, because until that time 
 it could not appear what children would be surviving. It was not 
 therefore a devise to her and her children jointly, for they did not take 
 at the same time. It was a life estate cut out of the fee, to the mother 
 in the first instance ; then the plantation to the children. Even did the 
 case rest here, I should have no doubt the testator meant the fee simple 
 after the life estate. But the plantation to be equally divided. Can it 
 be possible that he meant a life estate after the subdivision ? That a 
 hundred and seventy-one acres should be divided between five, a dwell- 
 ing house it may be presumed built by each upon his lot of fifty acres, 
 a garden, an orchard, a grass plot or meadow, and that an individual 
 from the rookery of heirs should come in at a distant day and possess 
 these improvements ? The subdivision is conclusive with me that he 
 intended an inheritance. 
 
 But it is alleged that the codicil qualifies, and shows that a fee was 
 
Clayton v. Clayton. 51 
 
 not intended, viz., " As for and concerning the plantation, my will is, 
 that the timber thereof shall be preserved, and not destroyed by any 
 person or persons whatsoever, firewood and fencing excepted." What 
 can this relate to, but to the life estate to the mother, with which estate 
 such a restraint is perfectly consistent ? So far from evincing a qualifi- 
 cation of the interest in the tract that was afterwards to be divided, it 
 proves to me the solicitude of the testator to preserve it with woodland 
 as it was, in order that it might be subdivided with convenience of timber 
 to the children, when, on the death of the mother, they came severally 
 to enjoy it. At all events it is nothing more, fairly construed according 
 to what we know of the care of an uncle, than a caution or direction in 
 the use, and not a qualification of ths interest in the estate. It would be 
 an unnatural appropriation of the terms to give them that effect. 
 
 Now for authority, as it is called ; though I will acknowledge, I set 
 little store by the early decisions, when it was a struggle with the courts, 
 whether and to what extent they would indulge in wills. Yet I will 
 cite one case referred to in the books, and which looks a little like the 
 case here. " All the rest of my estate I devise, one third to my wife, 
 and the rest to my children eqvxiUy to be divided between them." Carter 
 V. Horner, 4 Mod. 89. In Skinner 195, the same case is cited by the 
 reporter, and affirmed to be adjudged "that all past in fee, and it was 
 enjoyed accordingly." A having three sons, devised to them his lands 
 equally to be divided. They have a fee simple ; for if the younger had 
 not a fee, he would not have an equal share to the other. 8 Viner 237. 
 
 I had taken it that the decision in French v. M'llhenny, though with- 
 out the Chief Justice, yet by force of number, if not by weight of 
 judgment, had become a precedent in our decisions. But in the case 
 of French v. M'llhenny, there was more difficulty in making out a fee 
 than in this. Here I take it there is plain sailing. The words " for 
 life" used in the devise to the mother, omitted in the devis^ to the 
 children, is as much as to say, to them not for life, but altogether. This 
 is the reasoning of Justice Wilmot, who delivered the opinion of the 
 Court in the absence of Lord Mansfield, as reported in 3 Burrow 1539. 
 "Devise to Clement Boreham/or amd during the term of his natural 
 life, followed by a devise to Sarah Boreham of another tenement. But 
 in the devise to Sarah, he omiis the words, for and during natural life ; 
 which words it must be supposed he would have inserted in case he had 
 intended to give her only an estate for life, because he had just before 
 
52 ' Clayton v. Clayton". 
 
 done so in the preceding devise to Clement. It is plain that by giving 
 it to her generally, without having any such restrictive words as he had 
 before added to his devise to Clement, that he meant to give her the 
 absolute property. He meant to devise it ut bona d catalla, as a man 
 unacquainted with the law might very naturally do." So far Justice 
 Wilmot ; and if any one will examine the devises to which he refers, 
 he will find the argument holds more strongly in the devise here; 
 because in the devises there, there were distinct devisees, and distinct 
 subjects of devise in distinct sentences ; here he will find the devise to 
 the wife and children to be of the same subject, and in the same sentence. 
 
 Justice "Wilmot farther observes in that case, which is also an argu- 
 *aent in ours, that there is no devise over. In the case of French v. 
 M'llhenny it is to be noticed that the devise for life was but of one half 
 of the plantation ; and as to the remaining half it had not a life estate 
 to support it, and to make it a remainder of the fee simple. As to the 
 half therefore, it must be considered as given nakedly, without any 
 part hewn out ; and to have been held to be a fee, by the mere force of 
 the words bequeath the plantation. It is true that in that case we had the 
 word estate in the introductory part of the will, which was noticed by 
 me, not that I laid any stress upon it in my own mind, but as referring 
 to the English decisions which have laid stress upon it in some cases. 
 For the truth is, I have always thought the argument drawn from the 
 word estate; eff'ects, settle, etc. etc., whether introductoiy, or in the devise 
 itself, to be but a quibble; and to have been adverted to in these 
 decisions as a way of getting over a rule of construction which had 
 better been set aside. It is on the same principle that slight matters 
 have been laid hold of, collateral to the devise itself, to take the case 
 out of the general rule, such as the devisee paying even a small sum, 
 say forty shillings. 
 
 The heir is said to be favored by the common law ; but quaere, whether 
 he is so under our laws, where the right of primogeniture has been 
 abolished or abridged from the earliest period, and the proprietary grants, 
 and the statutes of distribution, and decision of the courts, and the policy 
 of the whole law, look to alienation and subdivision of property. But 
 the devise in this case to a stranger, savoring of the testamentum inoffi- 
 ciosum, I should be disposed to favor the heir ;. for I would look to the 
 estate as coming from the ancestors, and the right of the testator to 
 devise, as subject in a degree to this consideration, in which the law of 
 
Adams v. Ross. — Clayton v. Clayton. 53 
 
 descent may find some reason for its policy. In this case the devise is 
 to a sister's children. It is by an uncle to orphans. It is of a planta- 
 tion of his own acquisition, and which did not descend to him ; it being 
 the same tract of land, as he himself recites, which he bought of Jacob 
 Jones. No claim therefore could be grounded on the acquisition of an 
 ancestor, and the interest of a common stock. He was free therefore to 
 dispose of it, absolved from all common law consideration. How is the 
 heir to be favored, who has been passed over with a reasonable provision 
 for him and his children in the same will ? I am the more particular 
 in the consideration of this case, from a respect to the judge of the 
 Common Pleas from whom the appeal comes. And having been led 
 to expect a majority of this court against me, I am solicitous that it 
 may appear that I have strong impressions, if not strong reasons to 
 justify my dissent. 
 
 Judgment affirmed. 
 
 It is proposed in this note to consider the method of creation of an estate 
 in fee-simple (1) by deed ; and (2) by devise. 
 
 1. Ceeation op Fee-Simple by Deed. 
 
 The rule of the common law is that in order to vest an estate in fee- 
 simple in a natural person, the deed or conveyance must contain an express 
 limitation to the said person and his heirs-; the word " heirs " being the 
 operative term. There are few rules of the common law which have been 
 so inflexibly and so constantly enforced as this, even the manifest intention 
 of parties to a deed being made to give way before it. 
 
 This rule and its uncompromising nature have been recognized in the 
 United States as binding, except where modified or abrogated by statute. 
 Hileman v. Bouslaugh, 13 Pa. St. 344 ; Hogan's Heirs v. Welcker, 14 Mo. 
 177 ; Sisson v. Donnelly, 7 Vroom 432 ; Adams v. Boss, 1 Id. 505 ; Merritt 
 V. Disney, 48 Md. 344 ; Patterson v. Moore, 15 Ark. 222 ; Jackson v. Myers, 
 3 Johns 388 ; Edwardsville JR. B. Co. v. Sawyer, 92 111. 377 ; Beaume v. 
 Chambers, 22 Mo. 36 ; Sedgvnck v. Laflin, 10 Allen 420 ; Den d. Boberts v. 
 Forsythe, 3 Dev. L. 26. The rule applies with equal force also to cases of 
 reservation and of exception. Curtis v. Gardner, 13 Mete. 457 ; Ashorofi 
 V. Eastern B. B. Co., 126 Mass. 196 ; Kister v. Beiser, 38 Leg. Int. 300. 
 The word " heirs " cannot be supplied by " children," Adams v. Boss, 
 5* 
 
64 Adams v. Eoss. — Clayton v. Clayton. 
 
 supra ; or by " executors, administrators, and assigns," Clearwater v. -Rose, 
 1 Blackf. 137 ; Taylor v. Cleary, 29 Gratt. 448 ; or " successors and assigns," 
 Buffum V. Hutchinson, 1 Allen 58 ; Ililes v. Fisher, 10 Ohio 1 ; nor will 
 words which show an intention on the part of the grantor that the estate 
 granted shall endure indefinitely, enlarge a grant without the word heirs 
 to more than a life estate. See Foster v. Joice, 3 Wash. C. C. 498, where 
 a grant " to J. and his generation, to endure so long as the waters of the 
 Delaware run," was conceded to be a life estate only. Arms v. Burt, 1 
 Vt. 303, and Stevens v. Dewing, 2 Vt. 411, have been cited to the contrary 
 (1 Washburn E. P.). But an examination of the cases shows that in 
 both the word heirs was used ia the grant, which was in the following 
 form : " to A. and his heirs for 1000 years, or as long as wood grows and 
 water runs." So that these cases are not authority for the position that a 
 circumlocutory expression can supply the lack of a limitation to heirs, 
 but in effect merely are examples of the alternative expression combiaed 
 with a limitation to heirs turning a lease for a thousand years into a fee. 
 
 The word heirs must appear in the operative part of the deed or grant. 
 It need not, however, appear in the premises or grant proper ; it is sufiicient 
 if it appear in the habendum, the particular office of which is to define the 
 amount of the estate taken by the grantee, Bank v. My ley, 13 Pa. St. 544. 
 The habendum may enlarge the estate named iu the premises, Chaffee v. 
 Dodge, 2 Root 205. It cannot, however, give a legal estate where an equit- 
 able estate only is granted in the premises, Hastings v. Merriam, 117 Mass. 
 ^45 ; Ghapin v. First Universalist Society, 8 Gray 580. 
 
 An estate less than a fee cannot be enlarged thereto by words in the 
 covenants or in the warranty, Sisson v. Donnelly ; Adams v. Ross, supra ; 
 Den ex d. Roberts v. Forsyike, 3 Dev. L. 26 ; Phillips v. Thompson, 73 N. C. 
 543 ; Patterson v. Moore, 15 Ark. 222. In a case, however, where the war- 
 ranty and the habendum were run together, the court, while admitting the 
 general rule, held the composite clause to be a clumsily constructed haben- 
 dum, and construed the deed as passing a fee, Phillips v. Thompson, supra ; 
 and in Saunders v. Hanes, 44 N. Y. 353, where the question was upon a 
 deed, made in 1804, containing no words of inheritance in the habendum, 
 a restriction upon the grantee and his heirs was allowed to enlarge an estate 
 to a fee. 
 
 A deed to S. and her " bodily heirs " is sufficient to pass the fee. True 
 V. Nicholls, 2 Duv. 547 ; and generally, since the passage, in the various States 
 of the Union, of the statutes abolishing estates tail, words which would 
 formerly have passed an estate tail will pass the fee, Kirh v. Furgerson, 6 
 Cold. 479 ; Andrews v. Spurling, 35 Ind. 262 ; Singletary v. Hill, 43 Tex. 
 858. 
 
Adams v. Ross. — Clayton v. Clayton. 55 
 
 "Heirs" Supplied by Reference to Another Instrument. 
 
 The word " heirs " may be supplied by reference to another instrument 
 in pursuance of which the deed under consideration has been, and professes 
 on its face to be, executed, or which is made part of the deed, which instru- 
 ment referred to, itself contains the word " heirs ; " Mereeir v. Mo. River, Fort 
 Scott & G. E. B. Co., 54 Mo. 506 ; but this rule must be strictly applied, and 
 no intention, no matter how clearly manifested, that the instrument referred 
 to, even though it be a will, shall pass a fee, unless it contain the word heirs, 
 will be incorporated into the deed so as to make it pass a fee without words 
 of inheritance — as, where one, having a fee under a residuary devise, as 
 follows : " The remainder of my real and personal property I will to be 
 evenly divided betwixt my children," made a deed conveying " all his part 
 of the estate left to him by his father's last will and testament," it was held 
 that a life estate only passed by the deed, Lytle v. Lytle, 10 Watts 259. And 
 in Reaume v. Chambers, 22 Mo. 36, on the back of a deed in fee was written 
 another, reciting that the grantors " sold, ceded, and transferred all their part 
 of the land sold by their coheirs in the sale above." The reference was held 
 insufficient to pass a fee, the court saying, " This is one of those cases in 
 which the intent of the parties cannot prevail. The law has appropriated 
 certain words for passing a fee-simple in real estate, and imless they were 
 used, their intent, however forcibly expressed, could not prevail." 
 
 Exceptions to Rule. 
 
 The rule, however, requiring the use of the word heirs has some excep- 
 tions. It does not apply to an executory agreement enforceable as a con- 
 veyance in equity, Defraunce v. Brooks, 8 W. & S. 67 ; nor does it apply 
 in certain grants in trust. Where an estate is given without words of inheri- 
 tance in trust for one and his heirs, it has been held that the trustee must 
 take a legal estate commensurate with the equitable estate of the cestui que 
 trust, and therefore a fee, Newhall v. Wheeler, 7 Mass. 189 ; Brooks v. Jones, 
 11 Mete. 191. In Jackson v. Myers, 3 Johns 388, however, it was held that 
 where the legal estate is granted without words of inheritance in trust for 
 one and his heirs, a life estate only passed to the trustee ; that on his death 
 the fee would revert to the grantor and his heirs, against whom the cestui 
 que trust would be obliged to enforce his rights in equity. Where an estate 
 is given in trust without words of inheritance, and it is necessary for the 
 fiilfilment of the purposes of the trust that the trustee shall have the legal 
 estate in fee, a fee-simple will be held to pass. North v. Philhrook, 34 Me. 
 532 ; Hawkins v. Chapman, 36 Md. 83 ; Welch v. Allen, 21 Wend. 147 ; 
 Spessard v. Rohrer, 9 Gill 261 ; as where a power to sell is given, Angell v. 
 
56 Adams v. Ross. — Clayton v. Clayton. 
 
 Eosenbury, 12 Mict. 241 ; JSfeikon v. Lagow, 12 How. 98 ; even if the power 
 is to be exercised only on a contingency, North. v. PUlhrooh, mpra. 
 
 The proper words of ^rant of a fee to a corporation are to it and its suc- 
 cessors, and it has been held that a grant to a town and its assigns, " said 
 land being for the use of a common," is a grant to the town in fee, and not 
 merely a dedication to public use, Beach v. Haynes, 12 Vt. 15. 
 
 In Massachusetts it was as early as 1651 enacted that the rule requiring 
 the word heirs should not apply to grants by a town, and in the Feoffees 
 of the Grammar School in Ipswich v. Andrews, 8 Mete. 584, the Supreme 
 Judicial Court of Massachusetts, in construing a grant made in 1650, and 
 which did not contain words of perpetuity, held that in view of the general 
 ignorance of conveyancing existing in the colony at the time the deed was 
 made, the manifest intention of the parties thereto should be carried out, 
 and that a fee passed. 
 
 Abrogation of Rule by Statute, 
 
 The rule has been abrogated by statute in tKe following states : Alabama, 
 see Code, of 1876, § 2178 ; Arkansas, Rev. St. 1874, § 831 ; California, 
 Civil Code, §§ 6072, 6105 ; Colorado, Gen. Laws 1877, p. 134, § 7 ; Georgia, 
 Code 1873, 2248 ; Illinois, Rev. St. 1846, p. 105, § 13, Rev. St. 1880, ch. 30, 
 § 13 ; Iowa, Rev. St. 1880, Tit. xiii., § 1970 ; Kansas, Compilation of 1879, 
 ch. 22, § 2 ; Maryland, Rev. Code 1878, Act 4455 ; Nebraska, Gen. St. 1873, 
 ch. 61, § 49 ; New York, 1 Rev. St. 748, § 1 ; Oregon, Gen. Laws, ch. 7, § 4, 
 p. 647 ; Tennessee, Act 1851-2, ch. 33, § 1, Thompson & Steger's Stat, of 
 Tenn., § 2006 ; Texas, Paschal's Dig., § 999 ; Virginia, Code of 1873, Tit. 
 33, § 1 ; Wisconsin, Rev. St. 1878, ch. C, § 206. In these states Ijhe law 
 may be generally stated to be that neither heirs nor any other technical 
 word is required to convey or create an estate in fee, but that all convey- 
 ances of land are to be taken as in fee-simple, unless a contrary intent is 
 expressed in the deed or follows by necessary implication frorri its expres- 
 sions. In some a short form of deed has been given by statute. 
 
 A deed which contains no words of grant, but from the terms of which 
 an. intent to grant an estate can be collected, and which contains an haben- 
 dum to one and his heirs, will pass a fee-simple, Bridge v. Wellington, 1 
 Mass. 227. 
 
 A fee may be well granted with a reservation of the usufruct to the 
 grantor for life, Orihb v. Rogers, 12 S. C. 564 ; Waugh's Ex. v. Waugh, 84 
 Pa. St. 350. 
 
Adams v. Ross. — Clayton v. Clayton. 57 
 
 EflPect of Warranty. 
 
 Where an estate for life is given it will not be enlarged to a fee by a 
 warranty of title or covenant for quiet enjoyment to the grantee and his 
 heirs, for the warranty is an accompaniment of the estate, and when the 
 estate granted ceases the warranty ceases also. Den ex d. Snell v. Young, 
 3 Ired. Law 379 ; Register v. Rowell, 3 Jones Law 312 ; nor is the case 
 altered when the warranty is against the grantor, his heirs, executors, and 
 assigns, 15 Ark. 222. 
 
 2. Ceeation of Fee-Simple by Devise. 
 
 A much greater liberality of practice exists at common law in the crea- 
 tion of estates in fee-simple by devise than by deed. The general rule that 
 a fee will not pass without words of inheritance or perpetuity is, indeed, 
 recognized, Wright v. Denn, 10 Wheat. 204 ; Christie v. Gage, 5 Lans. 139. 
 But it has been so modified and restricted in its application, by that other 
 weU-known rule of law — ^that it is the duty of a court to interpret a will 
 according to the intention of the testator, and, having discovered that inten- 
 tion to carry it out if legal — that the life and strength of the rule of limi- 
 tation may be said to have been gone, even before the passage of the various 
 statutes in the difierent States of the Union for the better effecting of the 
 will of the testator, and which, in most cases, may be said to have, at least 
 from a legal point of view, done little more than change the presumption 
 as to what estate is intended by a devise without words of inheritance. 
 
 In the consideration of our subject, we shall treat it as at common law 
 first, and refer to the statutes later. 
 
 The rule that technical expressions, or the lack of them, should not pre- 
 vent the limitation of an estate in accordance with the testator's intention 
 as discoverable in his will, was applied in this country at an early date, 
 and, with its qualifications, was well stated by Shippen, P. J., in 1787, in 
 the case of Bmby v. Bushy, 1 Dall. 226, as follows : " The intention of the 
 testator is said to be the pole-star to guide the construction of wills. But 
 there are two qualifications — first, that this intention must not clash with 
 the rules of law ; and, secondly, that where legal technical terms are wanting, 
 the intention to supply them must be clear and manifest from the words 
 and expressions in the will." 
 
 A difierence of opinion soon arose amongst judges and lawyers as to the 
 application of the rule, some contending that the utmost liberality of inter- 
 pretation should be allowed in orde#l|tascertain and carry into efiect the 
 testator's intention, being, as ajJUjfcEMfciDGE, J., said he was, " prepared 
 to go the whole length of defflBHjPependence of the decisions of the 
 
58 Adams v. Eoss. — Clayton v. Clayton. 
 
 English courts subjecting the construction of a will to technical rules," 
 French v. M'llhenny, 2 Binn. 13 ; whilst others considered this great liber- 
 ality as forbidden by other rules of law, and held themselves bound to 
 uphold the ordinary technical force of words, except where the intent of the 
 testator to use them in another sense, or to disregard them, manifestly and 
 necessarily appeared from the expressions of the will. At the head of this 
 school of constructionists stood Chief-Justice Tilghman, who stated his view 
 of the law as follows : " That the intention of the testator shall be carried 
 into effect, if not contrary to law, even though such intention shall not be 
 expressed in the usual form, is a principle not to be controverted ; but such 
 intention must appear by the words of the will and not by conjecture. When 
 a principle of construction has been fixed, it becomes a rule of property, 
 and cannot be unfixed without violating the rights of property. Purchases 
 are made under the advice of counsel, and the opinions of counsel are 
 formed on the decisions of the courts. When the legislature think proper 
 to make alterations in the law, they take care to confine themselves to future 
 cases; but fluctuating decisions of courts of justice have a mischievous ex 
 post facto operation. These considerations have satisfied me that I am not 
 at liberty to indulge myself in conjecture concerning the intention of the 
 testator." And, in the course of his dissenting opinion in French v. 
 M'llhenny, the same learned judge, while he acknowledged that he thought 
 it probable that the testator intended to give to the devisee a fee-simple, 
 said that he was unable to get over " a principle which seems to be well 
 established, viz., that the inheritance shall not be taken from the heir unless 
 the devise contains the proper words to create a fee-simple (to the devisee 
 and his heirs), or words which have been construed as tantamount, as to the 
 devisee forever, or all his estate on the land to the devisee, or unless in some 
 other part of the will an intent is manifested inconsistent with a less estate 
 than a fee-simple, as if the devisee is directed to pay a sum of money to a 
 third party." 
 
 French v. M'llhenny went a great length in the direction of free, or, as it 
 might be termed by some, conjectural interpretation. Its authority^ how- 
 ever, was considerably weakened by Clayton v. Clayton, 3 Binn. 476, in 
 which case Beackenbeidge, J., dissenting, charged Yeates, J., who, with 
 him, had overruled Tilghman, C. J., in French v. M'llhenny, with having 
 given up the principle of that case, and by Steele v. Thompson, 14 S. & E. 84. 
 Still, in spite of the earnest efforts of some very learned jurists, the current 
 of decision set strongly in favor of great liberty of interpretation, and while 
 in subsequent cases we rarely find the question of a free or strict construc- 
 tion discussed, yet the practice soon arose of disregarding technical rules 
 of construction upon very slight intimations of intention. 
 
Adams v. Ross. — Clayton v. Clayton. 59 
 
 In noting cases of the enlargementlof devises, -without words of limita- 
 tion, from life estates unto fees-simple, it is, of course, hardly necessary to 
 say, what has been in eifect said over and over again, but perhaps never 
 better than by the court in QuUiver v. Poyntz, 3 Wilson 141, " Cases on 
 wills may guide us to general rules of construction, but unless a case cited 
 be in every respect directly in point, and agree in every circumstance, it 
 will have little or no weight with the court, which always looks upon the 
 intention of the testator as the polar star to direct it in the construction of 
 wills." 
 
 The general rule is that no evidence outside of the will itself can be given 
 to show what estate the testator intended that the devisee should take ; but 
 where the will refers to another writing, the court will examine the writing 
 and construe the will in connection with it, Jackson v. Bahcock, 12 Johns 389. 
 
 Enlargement of Devise by Use of Words Equivalent to a Devise 
 in Fee. 
 
 A devise without words of limitation may be enlarged to a fee-simple by 
 the use of words which have been held equivalent to a devise in fee. Chief 
 amongst these words is " estate," which word is regarded as referring to the 
 whole interest owned and possessed by the testator in land, and not as 
 merely referring to a thing or a locality. A devise, therefore, of the testa- 
 tor's " estate," uncontrolled by other expressions, or by the context of a 
 will, is a devise of the fee, Jackson v. Merrill, 6 Johns 185 ; Doe v. Harter, 
 7 Blackf. 488 ; Riish v. Kinney^ 3 Ind. 50 ; Donovan v. Donovan, 4 Harring 
 177 ; Kellogg v. BMr, 6 Mete. 325 ; Godfrey v. Hmnphrey, 18 Pick. 537 ; 
 Arnold v. Lincoln, 6 E. I. 384, and this although it be accompanied by words 
 of locality and description, as " all the estate called Marrowbone in the 
 county of Henry, containing," etc., Lambert's Lessee v. Paine, 3 Cr. 97 ; 
 Leland v. Adams, 9 Gray 171 ; and where the devise is general, " all my 
 estate, real and personal," Brown v. Wood, 17 Mass. 68 ; Arnold v. Lincoln, 
 supra; Oulbertson v. Duly, 7 W. & S. 195 ; or of the residue or remainder 
 " of my estate real and personal," Peppard v. Deal, 9 Pa. St. 140 ; Browne v. 
 Doughty, 4 Yeates 179; or "the residue of the real estate," Forsaith v. 
 Clark, 21 N. H. 409. 
 
 Another such word is "property," as- said by Bell, J., in Fogg v. Clark, 1 
 N. H. 163, " The word property in its most strict and proper sense relates 
 solely to the quantity of estate in the land, and, unless words restraining its 
 significance are added, always means the whole interest. The word prop- 
 erty in such connection is synonymous with the word estate or interest, and 
 includes everything in the land which the testator possessed." A devise 
 
60 Adams v. Eoss. — Clayton v. Clayton. 
 
 of "property " in connection with expressions showing the word to be refer- 
 able to real estate of the testator, or where the devise is of all the testator's 
 property, will give a fee-simple to the devisee. Bossetter v. Simmons, 6 S. & 
 E. 452 ; iStoever v. Stoever, to me, etc., 9 Id. 445 ; Jachson v. Housel, 17 Johns. 
 281. So the expressions "my land property," Foster v. Stewart, 18 Pa. St. 
 23 ; "all my land property in N.," Fogg v. Clark, supra; my "real prop- 
 erty," Niles v. Gray, 12 Ohio St. 320 ; Dice v. Sheffer, 3 W. & S. 419 ; Mor- 
 rison V. Semple, 6 Binn. 94 ; " my undivided half of the P. mill and privi- 
 lege, and the land and dwelling-house occupied as a part of said mill estate," 
 Waterman v. Green, 12 R. I. 483 ; " rest and residue of all my property, real, 
 personal, and mixed," Lincoln v. Lincoln, 107 Mass. 590, have been held to 
 pass a fee. So also the devise of all the testator's " right " in certain rents, 
 Netvkerk v. Newkerh, 2 Caines 345 ; or of all his '' right and title," he hav- 
 ing a fee, Merritt v. Ahendroth, 24 Hun 218. 
 
 A devise of " all and singular my goods and effects " has been allowed to 
 pass a fee, Lessee of Ferguson v. Zepp, 4 Wash. C. C. 645; also "my late 
 purchase," the said purchase having been in fee, Neide v. Neide, 4 Eawle 75 ; 
 " my plantation,'' Jenkins v. Clement, 1 Harp. Eq. 72 ; Waring v. Middleton, 
 3 Des. Eq. 249 ; Clark v. Mikel, Id. 168 ; French v. M'JJhenny, supra; but 
 see, contra, Steele v. Thompson, 14 S. & E.. 84, where a devise of " the plan- 
 tation which I now live on, which hath two deeds," was held not to confer 
 a fee, and the remarks of Stoey, J., in Wright v. Denn, supra. 
 
 The word " share," preceded by words showing a desire to dispose of the 
 whole estate by will, has been held to carry a fee-simple. Mo G lure's Heirs 
 V. Doidhitt, 3 Pa. St. 446 ; and also the following expressions : " to my wife 
 the land which her father gave me," Purcell v. Wilson, 4: Gratt. 16 ; " one- 
 half of all and everything that shall fall to me at my mother's death," 
 Chamberlain v. Omngs, 30 Md. 447. 
 
 A devise of the profits, rents, and income of land will vest a fee in the 
 devisee, Drusadoiv v. Wilde, 63 Pa. St. 170 ; Anderson v. Gfreble, 1 Ashm. 
 138 ; Carlyle v. Cannon, 3 Eawle 489 ; Early. Grim, 1 J. C. E. 494 ; but not 
 where they are given for a limited time only, Farl v. Grim, supra; and a 
 devise of the income, rents, and use, followed by a devise over on the death 
 of the first taker, will give a life estate only, France's Estate, 75 Pa. St. 220. 
 So a devise of the " use forever " will give a fee , but where the land is 
 giveji for a certain use which would not require any title in the estate to 
 support itj the intent of the testator will be held to be to give, a mere ease- 
 ment, Saxton Y.Mitchell, 78 Pa. St. 481. 
 
 The use of the word "absolutely," immediately following a gift to a 
 widow of " so much of my estate as the law allows her under the intestate 
 laws," where the intestate laws gave the widow a life estate in one-half of 
 
Adams v. Ross. — Clayton v. Clayton. 61 
 
 her husband's realty, will enlarge the devise to a fee-simple, Omald v. Kopp, 
 26 Pa. St. 516. 
 
 A devise to one " to have, hold, and enjoy forever, for the free use of her 
 and no other person, excepting by her assignment and will," will carry a 
 fee, Den d. Bolton v. Boiune, 3 Harr. (N. J.) 210 ; and also a devise to 
 several to enjoy and hold the same as tenants in common, Oroshy v. Dodds, 
 87 Pa. St. 359 ; but a mere devise of a " tract," excluding a portion pre- 
 viously devised for life, will not raise a fee-simple by implication, Wilson v. 
 Wilson, 4 T. B. Mon. 159 ; nor, at common law, a devise of " all the rest of 
 my lands," even if followed by the words " in possession, reversion, or re- 
 mainder," Wright v. Denn, supra. 
 
 Since the abolition of estates tail, words that would formerly have given 
 to the devisee an estate tail will give him the fee-simple, Welh v. Beall, 2 
 G. & J. 458 ; Carter v. Tyler, 1 Call. 144 ; Breckenbridge v. Denny, 8 Bush. 
 623 ; Hounstea v. Sand, 21 Hun 251 ; Deboe v. Loiven, 8 B. Mon. 616 ; 
 Middleton v. Smith, 1 Coldw. 144. 
 
 In some cases a fee has been inferred from the nature of the land devised, 
 or the condition of the title by which it is held. Thus, a devise of wild 
 land without words of inheritance has been construed a devise in fee, on the 
 ground that the devisor must be taken to have intended to confer a benefit 
 upon his devisee by making to him a bequest ; and if the devisee were 
 limited to an estate for life, he would not receive, nor could he obtain, any 
 benefit whatever from the land, since he could not even cut the trees, from 
 the sale of which the chief, if not the only, value of wild land arises, without 
 being liable for waste ; so that a gifb of such land for life would be nothing 
 more than the imposition of an obligation to pay taxes, Caldwell v. Ferguson, 
 2 Yeates 380 ; Sargent v. Towne, 10 Mass. 303 ; Ridgway v. Parker, Id. 305, 
 note ; JRussell v. Elden, 15 Me. 193. It has also been held that a devise of 
 land, which the testator held by an equitable or unperfected title from the 
 state, did not require words of inheritance to render it a devise in fee, where 
 the will showed an expectation on the part of the testator that the devisee 
 would perfect the title by obtaining the necessary title papers from the 
 state, Lindsay v. M' Cormack, 2 A. K. Mar. 229. 
 
 A case which goes very far in upholding the presumed intent of the 
 testator when expressed in most inartistic language is Johnson v. Johnson's 
 widoiv and heirs, 1 Munf. 549, where the bequest was " I give and because 
 ... 120 acres, ... 1 cow, 1 calf," etc.; and the court held that, as the 
 testator was evidently an illiterate person, and used the same words to 
 designate the interest he desired to bequeath in his real, as in his personal, 
 property, his intention was to give an absolute interest in both, and a fee- 
 simple would be taken in the land. 
 6 
 
62 Adams v. Ross.— Clayton v. Clayton. 
 
 Effect of Preamble showing Intent to Dispose of Entire Es- 
 tate. 
 
 There is a large class of cases in which the estate devised has been held 
 to be enlarged to a fee-simple by an intention, shown in the preamble of 
 the will, to dispose of the entire estate of the testator, taken in connection 
 with words according with that intent, contained in the devise itself. With 
 regard to the effect of an introductory clause, Chief-Justice Tilghman, in 
 Steele v. Thompson, said : " There have been various opinions concerning 
 the inferences which may be drawn from the introduction of a will, where 
 it expresses an intent to dispose of the whole estate. In connection with 
 other circumstances, such an introduction may be worthy of consideration, 
 but the better opinion seems to be, that there is not much in it, because it 
 is generally considered by the drawer of the will as matter of form, and put 
 down before he begins to express the will of the testator ; and because it 
 cannot be doubted that most men, when they make their wills, do intend to 
 dispose of their whole estate, whether they say so or not ; " and in Waring 
 V. Middleton, 3 Des. Eq. 249, Chancellor Dessausure, also speaking of the 
 introductory clause, said : " One of the scales must have been inclining 
 downward before any use can effectively be made of it." In accord with 
 the above expressions are many authorities. The rule as to the effect of an 
 introductory clause in the construction of a will may be stated as follows : 
 
 The intention of the testator to dispose of his entire estate, shown by the 
 introductory clause of a will, is never sufficient by itself to enlarge a devise 
 without words of limitation to a fee-simple ; but the intention to dispose of 
 the entire estate being shown in such clause, it will determine the court to 
 decide an estate to be enlarged to a fee, in a case where there exist, in the 
 devise under consideration, expressions tending, when taken in connection 
 with the words in the introductory clause, to show an intent on the part of 
 the testator to devise a fee, which expressions, taken by themselves, would 
 not be considered as showing with sufficient clearness an intent to give such 
 an estate, and where, if the doubtful devise were construed as giving a life 
 estate only, the testator would have died intestate as to part of his property. 
 Lippett V. Hopkins, 1 Gall. 455 ; Jackson v. Harris, 8 Johns. 141 ; Fox v. 
 Phelps, 17 Wend. 393 ; Barheydt v. Barheydt, 20 Id. 576 ; Hogan v. Andrews, 
 23 Id. 452 ; Van Derzee v. Van Derzee, 30 Barb. 331, 36 N. Y. 231 ; Olmsted 
 V. Harvey, 1 Barb. 102, S. C. 1 N. Y. (Comst.) 483 ; Cassell v. Cooke, 8 S. «fe 
 E. 268 ; Melntyre ^.Ramsey, 23 Pa. St. 317 ; Rupp ^.Eherly, 79 Id. 141 ; 
 BuU&r V. IMle, 3 Me. 239 ; Beall v. Holmes, 6 H. & J. 210 ; Lessee of Fer- 
 guson V. Zepp, 4 Wash. C. C. 645. 
 
 To give the effect of enlargement to a fee, there must be words in the 
 
Adams v. Eoss. — Clayton v. Clayton. 63 
 
 devise itself, connected in terms or sense with the introductory clause, and 
 they must import more than a mere description of property, Barh&ydt v. 
 Barheydt; Hogan v. Andrews; lAppetty. Hopkins; VanDereeev.VanD&rzee; 
 Olmsted v. Harvey. 
 
 The following terms in the preamble of a will, in connection with words 
 showing that the testator contemplated their disposition or settlement, have 
 been held as manifesting an intention to dispose of the entire estate of the 
 testator, and being construed with doubtful devising clauses have been 
 allowed to enlarge an estate to a fee : " my estate," Davies v. Miller, 1 Call 
 127 ; ''all my temporal estate," Watson v. Powell, 3 Id. 306 ; " my worldly 
 estate," Peppard v. Deal, 9 Pa. St. 140 ; " my worldly affairs," Walher v. 
 Walker, 28 Id. 40 ; " worldly effects, both real and personal," Doughty v. 
 Browne, 4 Yeates 179; "worldly goods," Wyatt v. Sadler's Heirs, 1 Munf 
 537 ; Kennon v. McRobert, 1 Wash. (Va.) 126 ; " temporal goods," Good- 
 rich v. Harding, 3 Rand. 280. The evidence of intention to give a fee is 
 much strengthened when, in addition to being preceded by an introductory 
 clause, showing an intention to dispose of the whole estate, the devise, without 
 words of limitation, is followed by a conclusion which shows that the testator 
 is of opinion that he has disposed of his entire property, as in Davies v. 
 Miller, supra, " this is my will, and the way I desire my estate to be dis- 
 posed of." 
 
 Intention to Give Fee Discovered by Comparison of Devise with 
 Others in the Same Will. 
 
 An intention to devise a fee is sometimes discovered from a comparison 
 of the devise under consideration with others in the same will. Thus where 
 a testator shows a desire to give equal estates to devisees, standing to him in 
 the same relation, and the devises to all but one are expressly in fee, and 
 the devise to the remaining one is to him generally, there being nothing to 
 show that the omission of the vords of inheritance was made with a purpose, 
 the devisee will be held to take a fee. Cook v. Holmes, 11 Mass. 528. And 
 where a devise was made to a son. A., without words of inheritance, and a 
 legacy was left to the children of a deceased son B., " which [legacy] is his 
 proportion of the estate," and there was an intent manifest in the preamble 
 of the will to dispose of the entire estate, it was held that A. would take a 
 fee-simple, since, otherwise, the children of B. would receive more than their 
 father's proportion, which was all that an intention to give them could be 
 found in the will, Butler v. Little, supra. The fact, however, that a will 
 contains a small legacy to the heir-at-law will not be sufficient to enlarge a 
 devise to another to a fee-simple, Clayton v. Clayton, 3 Binn. 476. See 
 
64 Adams v. Eoss. — Clayton v. Clayton. 
 
 also, for another instance of consti-uction by comparison, Hall v. Dickinson, 
 1 Grant Gas. 240. 
 
 Enlargrement of Devise in Trust by Requirement of Trust. 
 
 Where the will makes a devise on a trust which may require for its 
 execution a fee-simple, a fee-simple will be vested in the trustee, Deering v. 
 Adams, 37 Me. 264 ; Hardy v. Redman's Admr., 3 Cr. Cir. 635 ; Kirkland 
 V. Chx, 94 111. 400. 
 
 Enlargement by Implication from Control given over tbe Land 
 Devised., 
 
 In some cases a fee will be raised by implication from the control over 
 the land given to the devisee. Thus a devise of an estate to be at the 
 " absolute disposal " of the devisee will vest a fee, Jackson v. Babcock, 12 
 Johns. 389 ; so, where the " entire disposal " is given, even if the^re be a 
 devise over on the death of the first taker, McDonald v. Walgrove, 1 Sand. 
 Ch. 274 ; McLean v. MacDonald, 2 Barb. 534 ; or, where the devise is to one 
 " for her sole and absolute use and disposal," Terry v. Wiggins, 47 N. Y. 
 612 ; or, "to be disposed of at the pleasure of the devisee," Jackson\. Cole- 
 man, 2 Johns. 391 ; or, " that the devisee may manage the estate as though 
 she were entire and sole owner," Markillie v. Ragland, 77 111. 98. A general 
 devise, to use and dispose of as the devisee may please, will give a fee, 
 notwithstanding a devise over on the first devisee's death, Benkert v. Jacohy, 
 36 Iowa 273 ; but a devise, to have and hold and do with as she sees proper 
 before her death, will give a life estate only, Brant v. Virginia Coal and Iron 
 Co., 16 Am. L. Reg., N. S. 403. A devise to "A., so long as she continues my 
 widow ; but if she marries, no more than the law allows ; but if she con- 
 tinues my widow, she is to hold, enjoy, or dispose of it at her discretion as 
 I do at present," gives a fee determinable on marriage, Swope v. Swope, 5 
 Gill. 225. A devise of land " to be freely possessed and enjoyed " will give 
 a fee, Campbell v. Carson, 12 S. & E. 54, in which case the Supreme Court 
 of Pennsylvania adopted the meaning given, to free enjoyment by Lord 
 Mansfield in Madge's Lessee v. Blight, Cowp. 352^ i.e., the absolute estate, 
 and rejected the meanings given in later English cases — free from im- 
 peachment of waste, free from incumbrances. The law has, however, been 
 held differently in New York. In Wheaton v. Andress, 23 Wend. 452, the 
 testator, in the preamble, professed to make his will " as touching such 
 worldly interest," etc., and then devised to his wife all his lands, by her 
 " freely to be possessed and enjoyed." The court held that this devise gave 
 
Adams v. Ross. — Clayton v. Clayton. 65 
 
 but a life estate. Cowen, J., in his opinion, said : " No case holds that 
 [the introductory clause, manifesting an intent to dispose of the entire estate 
 of the testator] simply connected with the words freely to be enjoyed, etc., 
 the whole will carry a fee. To do this when there are no words of express 
 limitation, all the cases agree that the will should contain some provision 
 in respect to the land, necessarily inconsistent with the estate being for life. 
 Freely to be enjoyed, etc., may come much short of this." His Honor 
 pointed out that in Denn ex d. Gaskin v. Gaskin, Cowp. 657, and Wright ex d. 
 Shaw V. Evssell, Id. (cited by counsel), a disinheriting legacy had been given 
 to the heir-at-law, and that the authority of the cases had been weakened 
 by the opinions and comments of Lord Ellenboeough and Le Blanc 
 and Deetiry, J. J., in Goodright ex d. Drewry v. Barron, 11 East. 220. A 
 devise of land, to dispose of as the devisee may thiak best while she sur- 
 vives, and that any disposition she may make at her death shall be duly 
 and strictly attended to, and stand good in law, will give a fee, Moore v. 
 Webb, 2 B. Mon. 282. An express devise for life will not be enlarged to a 
 fee by the mere addition of a power of sale. Sawyer v. Dozier, 7 Jones N. C. 
 Law. 7 ; Dean v. Nunnally, 36 Miss. 358 ; Lewis v. Palmer, 46 Conn. 454 ; 
 Malthy's Appeal, 47 Id. 349 ; nor by the addition to the power of disposal 
 of a power to reinvest the proceeds without accountability, Coekrill v. 
 Maney, 2 Tenn. Ch. 49. The rule, with regard to this branch of the sub- 
 ject, laid down by the authorities is, that a devise for life, expressly with a 
 power of disposition, gives to the devisee but a life estate with a power 
 annexed ; but an estate given by a general devise, without words of limi- 
 tation, will be enlarged to a fee simple by the addition of a power of disposal, 
 Flintham's Appeal, 11 S. & R. 18 ; Jackson v. Robins, 16 Johns. 537 ; Rail 
 v.Dotson, 14 S. & M. 183; Dean \. Nunnally, 36 Miss. 358; Andrews v. 
 Brumfidd, 44 Id. 4957 ; Hall v. Preble, 68 Id. 100 ; Rubey v. Bamett, 12 
 Mo. 3 ; Bryant v. Christian, 58 Id. 98 ; Smith v. Fulkinson, 25 Pa. St. 109 ; 
 Baden v. Downey, 36 N. J. Law 74, 460 ; Fairman v. Beal, 14 lU. 244 ; 
 Funk V. Eggleston, 92 Id. 515 ; Beneseh v. Clark, 49 Md. 497. In Vir- 
 ginia, however, it has been held that a devise for life expressly, if followed 
 by an absolute power of disposition, will vest a fee. May v. Jaynes, 20 Gratt. 
 692 ; see also Missionary Society v. Calvert's Admr., 32 Id. 357, and Reynolds 
 V. Lee, 12 Reporter 702. This, however, seems contrary to the current of 
 decisions. 
 
 EflPect of a Devise Over. 
 
 A devise over without words of limitation is not enlarged to a fee-simple 
 by the mere fact that it is a devise after a life estate, Van Dereee v. Van 
 6* E 
 
66 Adams v. Eoss. — Clayton v. Clayton. 
 
 Derzee, 30 Barb. 331, 36 N. Y. 231 ; Ferris v. Smith, 17 Johns 221 ; Edwards 
 V. Bishop, 4 Comst. 61 ; Wilson v. Wilson, 4 T. B. M. 159 ; but a devise over, 
 contingent on the death of the first taker without issue, will carry a fee, 
 Morris v. Potter, 10 K. I. 58. 
 
 A fee in the iirst taker may be implied from a devise to one, and, in case 
 of failure of heirs, then over, Daniel v. Manama, 1 Bush. 544 ; Mies v. 
 Gray, 12 Ohio St. 320 ; Den ex d. SolloweU v. Kornegay, 7 Ired. Law 261 ; 
 Armstrong v. Zane's Heirs, 12 Ohio 287 ; in Huntingdon v. Spalding, 1 Day 
 8, the court gave the word " son " the force of " heir " in this connection ; 
 a fee may also be implied from a devise to several persons, with a provision 
 that should any die without heirs their share should go to the survivor 
 or survivors, Richardson v. Noyes, 2 Mass. 56 ; Taylor v. Foster's Admr., 17 
 Ohio St. 166 ; Abbott v. Essex Co., 18 How. 202. In King's Heirs v. King's 
 Administrator, 12 Ohio 390, a devise of " all my property to be used by C. 
 while he lives, and should he die without heirs lawfully born, I then will 
 what may be considered my share unto A. and B.," was held to give a fee ; 
 but in Lessee of Willis v. Bucher, 3 Wash. C. C. 369, a devise to A., " and if 
 A. die without heir or issue," was held to be only a devise in tail, the word 
 issue being interpreted as in the sense of heirs of the body and reducing 
 the fee. 
 
 A general devise with a remainder over contingent upon the death of the 
 first taker within a given age, will vest a fee in the first taker. " It is a 
 settled principle that when an estate is devised to one generally, with a 
 remainder over upon a limited contingency, as upon his dying under twenty- 
 one years of age, the first devisee shall take a fee-simple, for if the intent 
 were to give only a life estate with remainder over there could be no reason 
 for limiting to the death under age," per Story, J., Lippett v. Hopkins, 1 
 Gall. 455. See also Gray v. Winkler, 4 Jones (N. C.) Eq. 308, where it is 
 also decided that the limitation over need not be in fee, Cassell v. Coohe, 8 
 S. & E. 268 ; Garter v. Reddish, 32 Ohio St. 1 ; Seanlan v. Porter, 1 Bail. 
 427. It seems that a fee is given by a devise to one when he comes to the 
 fill! age of twenty-one years. Devenish's Lessee v. Smith, 1 H. & M. 148 ; 
 Carr v. Jeannerett, 2 McCord 67 ; sed vide Carr v. Green, Id. 75 ; and this 
 is not altered by the fact that it is uncertain who the devisee may be, as in 
 the case of a devise " to the youngest child " of the testator " who attains 
 twenty-one," Braikford v. Heyward, 2 Des. 290. 
 
Adams v. Ross. — Clayton v. Clayton. 67 
 
 Enlargement of Devise by a Charge upon the Devisee In Re- 
 spect to the Devise. 
 
 Where land is devised to a person, and a charge is made by the will upon 
 the devisee in respect to the devise, he will take a fee-simple, although the 
 devise contain no words of inheritance or -perpetuity. This rule proceeds 
 upon the principle of an intended benefit to the devisee, which benefit might 
 never accrue to him if the devise were limited to a life estate, for it might 
 expire before he had been able to reimburse himself, from the land, the 
 amount of the charge put upon him in respect thereto. Cook v. Holmes, 11 
 Mass. 528 ; Harden v. Hays, 9 Pa. St. 151 ; Lindsay v. McCormach, 2 A. K. 
 M. 229 ; King v. Cok, 6 E. I. 584 ; Farrar v. Ayres, 5 Pick. 404. 
 
 A mere injunction to pay is not suflicient to enlarge the estate granted to 
 a fee ; there must be a positive charge in the wiU, Fox v. Phelps, 17 Wend. 
 393 ; the charge is frequently expressed as follows, to A., he paying, etc. The 
 charge must be a personal one, and not a charge on the land. The distinc- 
 tion is thus stated by Kent, C. J., in Jackson v. Bull, 10 Johns 148, "The 
 distinction which runs through the cases is that where the charge is upon 
 the estate, and there are no words of limitation, the devisee takes only an 
 estate for life ; but where the charge is on the person of the devisee, in 
 respect of the estate in his hands, he takes a fee on the principle that he 
 might otherwise be a loser ; " see also Spraker v. Van Alstyne, 18 Wend. 
 200 ; see also Olmsted v. Olmsted, 4 Comst. 66. A fee, therefore, will not 
 be implied from a general charge on the testator's estate, Jackson v. Bull, 
 mpra ; or from the devise of an estate charged with the debts of the tes- 
 tator, no special charge being made upon the devisee, McLellan v. Turner, 
 15 Me. 436 ; Olmsted v. Harvey, 1 Barb. 102 ; or from a devise to pay the 
 fiineral expenses and debts out of the proceeds of the estate devised, Jack- 
 son V. Harris, 8 Johns. 141 ; Doe v. Harter, 7 Blackf. 488 ; or to pay certain 
 sums out of the estate devised. Funk v. Eggleston, 92 111. 517 ; or from a 
 general direction to pay debts, Mooherry v. Marye, 2 Munf. 453. 
 
 On the same principle, to wit, that the reason of holding a general devise, 
 accompanied by a persctaal charge is equivalent to a devise in fee, is that an 
 indemnity may be aflTorded to the devisee against possible loss, it is held 
 that even where there is a personal charge upon the devisee, yet if the 
 testator has provided a fond to which the devisee may look for indemnity 
 against the charge upon him, the devise will not be enlarged to a fee, Bur- 
 lingham v. Belding, 21 Wend. 463. 
 
 Where there is a personal charge, and no indemnity is provided, the 
 enlargement of the devisee's estate will not be prevented by the fact that 
 the sum charged upon the devisee is very small in amount, Jackson v. Mer- 
 
68 Adams v. Eoss. — Clayton v. Clayton. 
 
 rill, 6 Johns. 185 ; Gibson v. Horton, 5 H. & J. 177 ; King v. Cok, 6 K. I. 
 584 ; or that the time of its payment is postponed, Doe d. Harrington v. 
 Dill, 1 Hous. 398; Harden v. Hays, supra; or even contingent on the 
 arrival at a certain age of the person to whom payment is to be made, Doe 
 d. Harrington v. Dill, supra. 
 
 The charge may be to pay certain legacies, Barheydt v. Barheydt, 20 Wend. 
 500 ; or an annuity, Jones's Ex'rs v. Jones, 2 Beas. 236. It need not be a 
 direct money charge, but may imgpse an obligation to perform a certain 
 duty, as to educate a minor, Dumond v. Stringham, 26 Barb. 104 ; or to 
 give fire-wood or allow the use of a room to the testator's widow, Jackson 
 V. Martin, 18 Johns. 31 ; or to surrender a claim or expectancy, as a devise 
 to A., " provided he give up his right to all my land in C," Gibson v. Horton, 
 5 H. & J. 177. Where land is devised generally with words of valuation, 
 and there is a direction that the value shall be deducted from the share of 
 the devisee in the residuum, a fee-simple will pass. Baker v. Bridge, 12 Pick. 
 27 ; so where there is a direction that the residuum shall be given to those 
 who " get the worst lots of land," a fee will be implied in the land, Fattison 
 V. Doe d. Thompson, 7 Ind. 282. Where, however, the devisee has received 
 advancements from the testator to an amount exceeding the sum of the 
 latter's debts, and the fact is adverted to in the will, and a bequest of the 
 surplus of the advancements is made to the devisee, there a devise .will not 
 be enlarged to a fee by a direction that the devisee shall pay the debts, for 
 there is reaUy no charge upon the devisee at all, but the direction is a mere 
 application of the testator's own funds to the payment of his debts. Tanner 
 v. Livingston, 12 Wend. 83. A charge upon devisee in respect to the whole 
 of a piece of land of which he receives a portion and another person another 
 portion, may have the effect of enlarging the estates of both devisees to 
 fees, as in Barheydt v. Barheydt, supra. The devise of the " upper half" of 
 certain land to A. and the lower half to A.'s minor son, on condition that 
 A. paid certain legacies, was held to give an estate in fee to both A. and 
 his son. 
 
 Where a direction is inserted after an indefinite devise, that the devisee 
 shall pay a certaiu sum to a legatee named, and the same person is appointed 
 executor, the charge will be regarded as having relation to the devisee in 
 his personal character, and not as executor, and hence wUl cause him to 
 take a fee in the land devised, Wharton v. Moragal, 62 Ala. 201. 
 
 Where an estate less than a fee-simple is expressly limited, the rule is, 
 that it will not be enlarged to a fee by a charge, Dewitt v. Eldred, 4 W. & 
 S. 414; Moore x.Dimond, 5 K. I. 121. In Saylor x.Koeher, 3 W. & S. 
 165, however, the testator devised to his sons, "my leasehold estate in all 
 those messuages," etc., subject to the payment by the sons of certaiu legacies. 
 
Adams v. Eoss. — Clayton v. Clayton. 69 
 
 In fact, the testator had no leasehold estates, but owned the property devised 
 in fee. It was held that the sons took a fee. Gibson, C. J., remarked : 
 " Can it be doubted that the devise had regard to this land, or that he [the 
 testator] intended to pass the fee, when it is considered that the devisees 
 were burdened with the payment of the legacies ?" In Bmby v. Busby, 1 
 DaU. 226, a devise of land, without words of inheritance, to a widow, in lieu 
 of her dower or third, was held not to give a fee. 
 
 EflFect of Absence of Residuary Clause. 
 
 The absence of a residuary clause in a will, showing an intention to 
 dispose of the whole of the testator's estate, has been allowed to have the 
 effect of enlarging a devise to an estate in fee, Shinn v. Holmes, 25 Pa. 142 ; 
 Doe d. Harrington v. Dill, 1 Houst. 398. 
 
 Reduction of Devise. 
 
 The intention of the testator is to be observed, not only when it enlarges 
 an estate, but also when it cuts down what would otherwise have been a 
 devise in fee, Ellet v. Paxson, 2 W. & S. 418. A fee, however, will not be 
 held to be cut down by ambiguous words, Ladd v. Whitney, 117 Mass. 201 ; 
 Briggs Y.Shaw, 9 Allen 516, as where the devise is to A. in fee, but if he 
 die, to B. ; here the fee will not be cut down, but the provision for the devise 
 over will be held to refer to death in the testator's lifetime. The fee will 
 not'be cut down by words restricting or forbidding the sale of the land by 
 the devisee, even if followed by a devise over on the death of the first taker, 
 Reifsnyder v. Hunter, 19 Pa. St. 41 ; Walker v. Vincent, Id. 369 ; Kepple's 
 Appeal, 53 Id. 211 ; M'Cullough's Heirs v. Gilmore, 11 Id. 370; or by a 
 devise over on the death of the first taker without a son, Melson v. Doe 
 d. Gooper, 4 Leigh 408 ; or by a provision that the profits of the land shall 
 be applied to a particular purpose, Thompson v. Swoope, 24 Pa. St. 474 ; or 
 by a proviso that the land devised shall not be left to a certain person, 
 Barnard v. Bailey, 2 Harriag. 56 ; or by precatory words to the effect that 
 the devisee will leave the land to certaia persons, or for certain uses, 
 should he die without issue, or in any other contingency, Batehelor v. Macon, 
 69 N. C 545 ; Second Reformed Presbyterian Church v. Disbrow, 52 Pa. St. 
 219 ; Pennoek's Estate, 20 Id. 268 ; or by a provision that " should any 
 of my children die without heirs, his bequeathed share shall revert," 
 Shutt V. Rambo, 57 Pa. St. 149. The addition of the words " for life " to a 
 devise of a fee-simple — I give to A. an estate " in fee-simple for life — " will 
 not cut down the fee to a life estate, McAllister v. Tate, 11 Rich. 509 ; nor 
 
70 Adams v. Ross.— Clayton v. Clayton. 
 
 will a proviso that if A. " should die without heirs of his body," then over, 
 reduce a properly devised fee to a fee-tail, Roser v. Slade, 3 Md. Ch. 91. 
 When a fee is given, the only effect of the words " for her sole and separate 
 use during her life " will be to exclude the marital rights of a husband, 
 leaving the estate iu the devisee still a fee-simple, SkUlin v. Lloyd, 6 Cold. 563. 
 Where, after a devise ia fee, the will provides that, if the devisee do not 
 pay certaiu legacies, the executors may sell part, or all of the land devised, 
 and there is no devise over, the fee will not be cut down. Sauna's Appeal, 
 31 Pa. St. 53. The addition to a devise in trust for B. and her heirs, o| the 
 words " for her and her heirs' sole use and benefit," will not destroy the 
 equitable fee devised to B., Kom v. Outler, 26 Conn. 4. In Grant v. Carpenter, 
 8 R. I. 36, after giving an estate in fee, the will went on to provide that, 
 under certain, circumstances the devisee might sell the estate : the court held 
 that, although the testator evidently thought the estate he had given could 
 not be disposed of without the subsequently granted power, stUl the will 
 should not be construed as giving a life estate. The mere fact that an 
 estate for life has been limited to a person is not a sufficient indication of 
 intent that the devisee shall have a life estate only, to prevent a fee-simple 
 in the same land being given to him by subsequent words, Geyer v. Wentzel, 
 68 Pa. St. 85. 
 
 Statutory Regulations. 
 
 Throughout the United States, statutes have been passed, which have 
 greatly modified, if they have not overthrown, the rules of construction of 
 devises of realty. They have all been in the direction of giving freer play 
 to the intention of the devisor, and have given much greater latitude to 
 courts, when engaged in the construction of wills, than was permitted by 
 the rules of the common law. With regard to the question immediately 
 before us, some of the statutes have merely destroyed all presumption aris- 
 ing from the omission of words of limitation ; others have declared the 
 presumption to be in favor of a gift of the fee, thus reversing the old rule ; 
 and others, still, have joined with this omission other circumstances, as 
 necessary to create a presumption. 
 
 New Jersey seems to have taken the lead in this species of legislation, and 
 its statute, passed as early as 1784, provides that, " all devises in which the 
 words ' heirs and assigns,' or ' heirs and assigns forever ' are omitted, and no 
 expressions are contained in such will or testament whereby it shall appear 
 that such devise was intended to convey only an estate for life, and no further 
 devise thereof being made of the devised premises after the death of the 
 devisee, to whom the same shall be given ; all such devises shall be taken 
 
Adams v. Eoss. — Clayton- v. Clayton. 71 
 
 and understood to be the intention of the testator thereby to grant and 
 devise an absolute estate in the same ; and shall be construed, deemed, and 
 adjudged in all courts of law and equity in this State to convey an estate in 
 fee-simple to the devisee for all such devised premises, in as foil a manner 
 as if the same had been given or devised to such devisee, and to his heirs 
 and assigns forever, any law, usage, or custom to the contrary notwith- 
 standing." Eevision of 1878, p. 300, ch. 41, § 47. The Oregon statute is 
 apparently a transcript of the efficient part of the foregoing statute. Gen. 
 Law of Oregon of 1872, ch. 64, § 47. 
 
 The Pennsylvania statute is to the same eifect, but more succinctly ex- 
 pressed: "AU devises of real estate shall pass the whole estate of the 
 testator in the premises devised, although there be no words of inheritance 
 or of perpetuity, unless it appear by a devise over, or by words of limitation 
 or otherwise ia the will, that the testator intended to devise a less estate." 
 Act AprU 8, 1833, § 9, Pur. Dig., Vol. 2, p. 1475, pi. 10. 
 
 The statutes of Delaware, Eev. St. ed. 1874, ch. Ixxxix, § 24 ; Kansas, 
 Comp. Laws 1879, ch. 117, § 54 ; Massachusetts, Eev. St. 1858, pt. II., Tit. 
 m.; Michigan, Eev. St. 1857, ch. 92, § 2, par. 2826; Maine, Eev. St., 
 ch. 74, § 16 ; Minnesota, 1 St. at Large 646, Tit. 1, ch. 35 (Bissell, 1873) ; 
 Ehode Island, Gen. St., Tit. xxix., ch. 171, § 5 ; Virginia, Code 1873, ch. 112, 
 § 7 ; West Virginia, Eev. St., ch. 82, § 8 ; New Hampshire, Eev. St., ch. 193, 
 § 5 ; Ohio, Eev. St. 1880, Tit. II., § 5970 ; Vermont, Gen. St. 1862, ch. 49, 
 § 3 ; Wisconsin, Eev. St., ch. 103, § 2278 provide, with but little variance 
 of language, that every devise of land shall be construed to pass all the 
 estate of the testator therein, which he could legally devise, unless the will 
 show an intent to pass a less estate. 
 
 The statutes of Illinois, Eev. St. 1880, ch. 30, § 13 (Hurd's edition) ; 
 Colorado, Gen. Laws, ch. xvii., § 7 ; and Texas, Pasch. Dig., Art. 999, de- 
 clare that a devise shall be deemed to be intended in fee-simple, if a less 
 estate be not limited by express words, or do not appear to have been 
 devised by construction or operation of law. 
 
 The Maryland act, passed in 1825, Md. Code 1878, Art. 49, § 8, declares 
 that by a devise without words of limitation or perpetuity, the entire and 
 absolute estate of the devisor shall pass, unless it appear by a devise over, 
 or words of limitation or otherwise, that a less estate is intended. 
 
 In Mississippi, by the Code, ch. 52, § 2284, it is provided that a devise 
 without words of limitation shall transmit a fee-simple if a less estate be 
 not limited by express words, or unless it clearly appear from the will that 
 a less estate was intended. 
 
 In Missouri, Eev. St., ed. 1879, § 4004, by a devise as above, where there 
 
72 Adams v. Ross.— Clayton v. Clayton. 
 
 are no express words showing an intention to give a life estate, and there is 
 no devise over, a fee-simple is to be taken to have been intended. 
 
 In South Carolina a statute passed in 1824 declares that every devise 
 shall be considered as in fee, unless such a construction be inconsistent with 
 the will of the testator, express or implied. 
 
 In New York the statute is as follows, Eev. St., ch. vi., § 7 : " Every will 
 that shall be made by a testator in express terms of all his real estate, or 
 in any other terms denoting his intent to devise all his real property, shall 
 be construed to pass all the real estate which he was entitled to devise at 
 the time of his death." 
 
 In North Carolina, by the terms of the Kevised Code, ch. 119, § 26, every 
 devise shall be construed as in fee-simple, unless such devise shall in plain 
 and express words show, or it shall be plainly intended by the will, that the 
 testator intended to convey an estate of less dignity. The Tennessee stat- 
 ute. Code § 2006, is to the same effect. 
 
 In Kentucky a devise will carry the entire estate of the testator, unless 
 a less estate is limited by express words or by necessary impKcation, Rev. 
 St., ch. 80, § 7. 
 
 Words of limitation are rendered unnecessary in a devise in Alabama, Code 
 § 2178 ; Iowa, Eev. of 1860, ch. 95, § 2208 ; and Indiana, Rev. St. 1843, § 488, 
 
 The statute of Georgia goes farther than any other. It provides (Code 
 1873, § 2248, Act of 1821) that a fee shall pass without words of limitation, 
 unless a less estate is limited ; that if a less estate is expressly limited, the 
 courts shall not, by construction, enlarge such estate into a fee, but, disre- 
 garding all technicalities, shall give effect to the will of the testator so far 
 as the same is lawftil, if it can be gathered from the contents of the instru- 
 ment, and if not the court may resort to parol testimony. 
 
 Interpretation of Devises since Statutes. 
 
 The above, it will be seen, all tend in the same direction, differing only 
 in the respects pointed out. The interpretation, therefore, in many respects, 
 of a will made in any state since the enactment of the statute upon 
 that subject, will be governed by a different rule than that applied to a 
 wUl antedating the statute. In South Carolina, indeed, it has been held 
 otherwise, and there the statute has been considered as merely declaratory, 
 and therefore retroactive, Peyton v. Smith, 4 McC. 476 ; Hall v. Ooodwyn, 
 Id. 442, which two cases seem to overrule Boatwright v. Faust, Id. 439, 
 wherein a contrary position was taken ; but this is believed to be the only 
 State where the law is so held. 
 
 Since the statutes, the words " heirs and assigns " are not only unneces- 
 
Adams v. Eoss. — Clayton v. Claytost. 73 
 
 sary to pass a fee, but their absence is not even evidence of intention on the 
 part of the testator to give less than a fee, Baldwin v. Bean, 59 Me. 481 ; 
 and as the presumption now is in favor of a fee being given, it is not now 
 sufficient that the testator's intention appear doubtful in order to persuade 
 a court to hold that a life estate and not a fee-simple is given to the devisee, 
 Shirey v. Postlethwaite, 72 Pa. St. 39. In Illinois the presumption has been 
 carried so far, that a devise that A. administer, and if there be not suffi- 
 cient personalty to pay all just demands that he shall sell such of the real 
 estate as he shall think advantageous, has been construed as giving a fee, 
 MoConnel v. Smith, 23 111. 611. A limitation over after the death of a 
 devisee to whom a general devise has been made, does not, under the statute 
 of Pennsylvania, in which it will be recollected a devise over is recited as 
 one of the means by which an intention to give a life estate may be recog- 
 nized, reduce the fee where the limitation over is to the children and heirs 
 of the devisee, Williams v. Leech, 28 Pa. St. 89 ; Naglee's Appeal, 33 Id. 
 89. The word " use " in a devise will not necessarily show an intent that 
 the fee shall not pass, as " I give to my son V. the use of that part of the 
 farm," etc., Hance v. West, 32 N. J. Law, 233 ; but a devise of an entire 
 estate, durante viduitate, " but in case of marriage I give only one-half of 
 my property, which goes for her support during her natural life, and the 
 other half to my brothers or their heirs," was held to give a life estate only 
 in the half devised to the widow, on her remarriage, the court regarding the 
 intent of the testator, as shown by the word '' only," manifesting an inten- 
 tion that the after devised should be of the same character as the first 
 devised estate, and the fact that the widow's support during her life was the 
 recited object of the devise, Sheldon v. Rose, 41 Conn. 371. A devise, 
 however, for the devisee's " own individual purposes and property to have for 
 her benefit to enable her to support her three infant children," is not reduced 
 to a life estate by the recital of the object of the devise being the support 
 of the children, Davis v. Bawcum, 10 Heisk 406. A devise to one " and 
 her children, the children taking their mother's share," has been held to 
 show an intention that the mother should take a life estate only. Estate of 
 I. R. Smith, 9 Phila. 348. A general devise, followed by a declaration that 
 the land should not be encumbered or sold by the devisees, but remain free 
 for their children, but the devisees should have the use, income, and profits 
 during life, with power to make wills disposiag of the land, has been held 
 to give to the devisees a life estate only, Vridh v. Merkel, 81 Pa. St. 332. 
 
 There are cases of enlargement of an estate, in terms for life, to a fee by 
 virtue of the rule in Shelly's case, both when the estate is created by devise 
 and when it is created by deed. These will be found treated in their proper 
 place in the note upon that rule. 
 7 
 
Estate Tail— Creation of: Incidents ; Statutory Regulations. 
 
 ALLIN AND WIFE v. BUNCE. 
 
 Hartford Superior Court and Supreme Court of Errors of 
 Connecticut, A. d. 1785. 
 
 [Repoited in 1 Boot 96.] 
 
 A devise to a man and the heirs of his body lawfully begotten forever cre- 
 ates a fee-tail. 
 
 Action of ejectment for a piece of land. The case from the decla- 
 ration and pleadings was thus — Capt. Knowles of Hartford, in and by 
 his last will and testament, dated the 30th of Nov. A. d. 1753, devised 
 certain lands, including the demanded premises, to his son Samuel and 
 to the heirs of his body forever. The testator died and his will was 
 proved and approved. Samuel Knowles, the devisee, married and had 
 heirs of his body, the plaintiff's vnfe being one, and then said Samuel 
 sold and conveyed the estate in fee to the defendant, and is since dead. 
 
 The question made in this case was — whether this was a fee condi- 
 tional in Samuel the son, or a fee-tail. 
 
 By the court it was adjudged to be a fee-tail in Samuel the son, and 
 the plaintiff had judgment for the land demanded. 
 
 The case of John Kimberly v. Hale, adjudged at Hartford on a special 
 verdict, was quoted, in which case the jury found the following facts in 
 a special verdict, viz. : that in April A. D. 1727, Samuel Smith, Sr., 
 made a settlement of his estate to certain uses, viz., first to himself for 
 life, then to his son Samuel and the heirs of his body lawfully begotten ; 
 and in default of such heirs to his son Joseph and the heirs of his body 
 lawfully begotten ; and in default of such heirs then to his own right 
 heirs. That Samuel, Sr., died, and Samuel the son entered into said 
 estate and was seized ; and without having any heirs of his body, in 
 A. D. 1734 he conveyed said estate to his sister Rachel ; that thereupon 
 said Rachel entered and was possessed, and under her the plaintiff 
 claims. That in a. d. 1749 Samuel the younger died without heirs of 
 his body, and that thereupon the said Joseph Smith entered upon the 
 
 74 
 
Lessee of Hall v. Vandegeift. 75 
 
 estate, claiming tke same as tenant in tail by force of the deed of settle- 
 ment aforesaid, and leased it to the defendant for a term not yet ex- 
 pired; who entered and did the facts complained of in the plaintiff's 
 declaration. 
 
 And thereupon put the question of law to the court upon the facts 
 aforesaid^whether the said Joseph Smith and the defendant under him 
 had right to enter into said land, etc. The court adjudged that the said 
 Joseph Smith, and the defendant under him, had right to enter into 
 said land ; and thereupon, judgment was for the plaintiff to recover. 
 
 The case was carried, by a writ of error, to the supreme court of 
 errors, and the judgment of the superior court was affirmed. 
 
 LESSEE OF HALL v. VANDEGEIFT. 
 
 Supreme Court of Pennsylvania. 
 
 [Reported in 3 Binney 373.] 
 
 A devise to A, " and his lawful begotten heir forever " is an estate tail in A. 
 
 It is sufficiently clear that in a will, if not in a deed, heir is nomen collectir 
 vum, and the same as heirs. 
 
 It is not necessary that the body from which the issue is to come should be 
 mentioned in express terms, in order to make a good estate tail. It is 
 sufficient if the intention of the testator appears with reasonable certainty. 
 
 It is the spirit of the act of limitations to allow twenty-one years from the time 
 that a person might make an entry and support an action, the statute 
 not stopping after it has begun to run, in consequence of infancy cover- 
 ture or any other disability. But if a party has not a right of entry, but 
 only a possibility which may give a right of entry at a future day, the 
 statute does not nm against him until that right accrues. Hence, not- 
 withstanding the next heir in tail releases to the tenant in tail in pos- 
 session, the statute does not run against the releasor until the death of 
 the tenant in tail without issue. 
 
 This was an ejectment, in which the following, case was stated for the 
 court's opinion : 
 
 Sarah Mallowes, being seized in fee of the premises in the declara- 
 tion, on the 16th December, 1723, duly made and published her last 
 will and testament in writing, bearing date the day and year aforesaid, 
 
76 Lessee op Hall v. Vandegeipt. 
 
 and therein devised as follows : "Imprimis I give and bequeath to my 
 kinsman Solomon Hall ten pounds in lawful money, likewise sixty acres 
 of woodland joining on the northeast side the plantation he now dwells 
 on, I give to him and his lawful begotten haieb forever" — "Item I 
 give unto my negro boy Toby, when he arrives at the age of twenty- 
 four years of age, the sum of ten pounds lawful money, likewise ten 
 acres of land lying at the north corner of my land, to have during his 
 life." — "Item I give and bequeath to my kinsman Joseph Hall, and to 
 his lawful heirs forever, all my plantation that I have not before given, 
 with all its improvements thereon, I give and bequeath to my kinsman 
 Joseph Hall and his lawful heirs forever. And for the love and affec- 
 tion I do bear unto my kinsman Joseph Hall, I do give and bequeath 
 unto the aforesaid Joseph Hall, all the reversion of what I have herein 
 before given of my estate both real and personal, or of what kind or 
 nature soever they be, I give unto my said kinsman Joseph Hall and 
 his heirs forever " 
 
 The testatrix died seized as aforesaid, without altering or revoking 
 her said will, Solomon Hall, the devisee therein mentioned, surviving her. 
 
 Solomon Hall the devisee, after the death of Sarah Mallowes, entered 
 into the premises, and died seized thereof, leaving lawful issue four chil- 
 dren, to wit, John Hall his eldest son, Solomon Hall his second son, and 
 two daughters — Sarah, who intermarried with David Davis, and Mary 
 Hall. 
 
 After the death of Solomon Hall, the said John entered upon the 
 premises, and about the latter end of 1785, or beginning of 1786, died 
 without issue, his brother Solomon above mentioned, who was his heir 
 at law, surviving him. 
 
 On the 18th of May, 1786, the said Solomon Hall last mentioned 
 died, leaving lawful issue Jacob Hall, his eldest son and heir at law, the 
 lessor of the plaintiff, and five other children. 
 
 The defendants are in possession ; and they and those under whom 
 they claim have been in possession of the premises in the said will of 
 Sarah Mallowes mentioned, and devised as aforesaid, ever since her 
 death, and claim the same by force and virtue of the following deeds, 
 will, and conveyances. ■ ' 
 
 On the 30th August, 1750, William West and Elizabeth his wife 
 (who was the widow of Solomon Hall the devisee of Sarah Mallowes), 
 Solomon Hall one of the sons of Solomon the devisee, David Davis 
 
Lessee of Hall v. Vandegrift. 77 
 
 and Sarah his wife, one of the daughters of the said Solomon the devisee, 
 and Mary Hall another daughter of the said Solomon the devisee, re- 
 leased all their right and title to the property devised by Sarah Mallowes 
 as above stated, unto John Hall eldest son and heir at law of Solomon 
 Hall the devisee of Sarah Mallowes, in fee, with a warranty against all 
 claiming under them. [The deed was in these words, " have granted, 
 remised, released, and confirmed, and do grant, remise, release, and con- 
 firm to the said John Hall, his heirs and assigns, etc."] 
 
 On the 26th April, 1754, John Hall and wife conveyed the above 
 premises to Benjamin Britton in fee. [And the case then proceeded to 
 deduce the title down to the defendants.] 
 
 The question for the opinion of the court was, whether the plaintiff 
 was entitled to recover. 
 
 It was argued first in December term last by Gondy for the plaintiff, 
 and by Rush and Hophinson for the defendants. 
 
 For the plaintiff. The plaintiff claims as heir in tail of Solomon Hall, 
 under the will of Sarah Mallowes. If Solomon took an estate tail under 
 that will, we are entitled to recover, otherwise not. The word hdr, in 
 the singular number, is the only thing which can create a doubt ; but 
 we think it perfectly well settled, that heir is nomen GoUeetiwrn, and 
 both in wills and deeds equivalent to heirs ; certainly it is so in a will. 
 The opinion of Lord Coke is known to be the other way. He says that 
 if land be given to a man and his heir, in the singular number, he hath 
 but an estate for life. The reason which he gives for it is, however, a 
 bad one — " his heir cannot take a fee-simple by descent, because he is 
 but one, and therefore in that case his heir shall take nothing." This 
 reason evidently begs the question ; for his heir we say is not one, but 
 all who at different times stand in that relation. Accordingly his learned 
 commentator puts against that opinion many authorities, that as well in 
 a deed as a will, heir may operate in the same manners as heirs, in the 
 plural. Co. Litt. 8, b, note 4. Lord Coke himself, in a subsequent 
 page, agrees that " heir in the singular number in, a special case may 
 create an estate tail, as appeareth by 39 Ass., p. 20," where lands were 
 given to a man and to his wife, and to one heir of their bodies lawfully 
 begotten, and to one heir of the body of that heir only. This was held 
 to be an estate tail, although to use Lord Coke's language, it was much 
 7* 
 
78 Lessee of Hall v. Vandegeift. 
 
 more coareted or restrained than the present. Co. Litt. 22 a. In 
 Richardson w.Yardky, Moore 397, case 619, Popham says, if land be 
 devised to one for Ufe, and after to his heir male, it is tail. The point 
 was expressly decided in Clerl v. Bay, Cro. Eli^. 313. All the justices, 
 says the reporter, agreed that a devise to one and the hdr of his body 
 is an estate tail ; " for heir is nomen collectivum, and one can have but 
 one heir at one time, and this shall go from heir to heir." To the same 
 poiat is Whiting v. Wilkins, 1 Bulstr. 219, which was a devise to Robert 
 Whiting the testator's son in perpduum, and after his decease the re- 
 mainder to his hdr male in perpduum; and it was held by the whole 
 court to be a good estate tail iu Robert. So 1 Roll. Abr. 832, Estate 
 K. pi. 1, a gift to one and his heir was held to be a fee in the donee ; 
 and iu Dubber v. Trollop, 8 Yin. 233, pi. 13, Lord Coke's opinion is 
 denied to be law by Chief Justice Eyi-e in delivering the opinion of the 
 court. 
 
 If it be objected that the body from which the heir must proceed is 
 not particularly indicated in this case, it is aufewered that it appears with 
 sufficient certainly. To Solomon Hall and his lawful begotten heir, is 
 the same as to him and his heir by him lawfully begotten. It is not 
 necessary to use the words de corpore. In Church v. Wyatt, Moore 637, 
 case 877, the devise was to A, ^ hceredibus suis legitime procreatis, which 
 is precisely the present devise. And in Barrd v. Bechford, 1 Ves. 521, 
 which was a devise to A and his legitimate heirs. Lord Chancellor Hard- 
 wicke says in terms, the proper construction of legitimate heirs is heirs 
 of his body lawfully begotten ; for if to him and his heirs lawfully be- 
 gotten, that would be heirs of his body. The difference between a lawful 
 and an illegitimate heir occurs only when the particular parent is referred 
 to. In such a case lawfully begotten heir means issue. 
 
 The testatrix intended to keep this estate in the line of Solomon Hall. 
 Though illiterate, she knew the difference between estates. To Toby 
 she gives an estate for life, and to Joseph Hall a fee-simple, in legal 
 terms. When she spoke of lawfully begotten heirs, she must therefore 
 have intended the lawful issue of Solomon. Joseph was the peculiar 
 object of her bounty, not Solomon. She gave a fee-simple to him in 
 a part of her farm, and the reversion of what she had before given of 
 her estate, which was the life estate to Toby, and the estate tail to Sol- 
 omon. This is very strong to show that she did not intend the entire 
 fee should go to Solomon. 
 
Lessee of Hall ». Vandegeipt. 79 
 
 For the defendants. This case is not entitled to favor. The spirit of 
 our code is opposed to this restricted inheritance, and has brought the 
 distinction between a fee-simple and a fee-tail to a mere name, by au- 
 thorizing the tenant in tail to bar the issue by a deed of bargain and 
 sale. The estate in question has moreover been considered a fee-simple 
 since 1723. It has been sold as such to bona fide purchasers for a val- 
 uable consideration ; and the plaintiif claims not only against them, but 
 against the deed of his father. The words in this will do not in their 
 proper and legal acceptance create a tail ; and words must be taken in 
 this way in a will as weU as in a deed, unless there is a plain intent to 
 the contrary. If therefore there is nothing like such a plain intent in 
 this will, the consequence must follow that there is no tail. Whether 
 Solomon Hall took for life or in fee is of no consequence ; either way 
 the plaintiff cannot recover. 
 
 Blackstone defines an estate tail in general to be, where lands and 
 tenements are given to one and the heirs of his body begotten. Two 
 things therefore are necessary ; words of inheritance, and words limit- 
 ing that inheritance to the heirs of a particular body. 2 Bl. Comm. 113. 
 No case has been shown where these have been dispensed with in a deed ; 
 and it is not conceded that any such case can be shown. On the con- 
 trary there is no doubt, that for want of certainty as to the body, these 
 words in a deed would not amount to an estate tail, but to a fee-simple 
 or an estate for life. Abraham v. Twigg, Cro. Eliz. 478, is in point that 
 they would not. The deed there was to A and his heirs males lawfully 
 engendered ; and held that it was not tail. But greater indulgence is 
 shown to wills, if the intention of the testator plainly requires it. Stfll 
 it must be a certain and manifest intention, or the legal import of the 
 words must prevail. Wild's case, 6 Rep. 16 b. To a man and his seed, 
 or the like, is a good tail in a will. But there the body is designated. 
 Here it is to Solomon Hall and his lawful begotten heir. What is the 
 difference between this and his lawful heir ? Does it necessarily mean, 
 begotten by him ? Not at all. Any legitimate heir, or in fact any heir 
 of Solomon Hall, is his lawfully begotten heir. There is therefore no 
 evidence of plain intention, because the words will answer for a fee at 
 least as well as for an estate tail. Indeed the intention must be pre- 
 sumed to have been in favor of a fee. Ignorant people uniformly mean 
 to give the whole, where they do not expressly and plainly limit the 
 gift, as Hie testatrix did in the present will, where she gave Toby an 
 
80 Lessee op Hall ?;. Vandbqeift. 
 
 estate for life. She probably never heard of an estate tail, and did not 
 know what it was. She takes no particular care of the issue of Solomon, 
 but leaves the whole subject to his disposition, at least by some species 
 of conveyance ; and what emphatically shows her intention to part with 
 the whole estate is her closing the devise by the words /ore»er. To sup- 
 pose that the testatrix knew that these terms would limit the inheritance 
 to any other description of Solomon's heirs, than those born in wedlock 
 in some branch or other of his family, and that the estate would upon 
 a certain event cease, is to attribute to her an intimacy with law, which 
 is impossible, and which the will disproves throughout. Eeversion is 
 of no importance here. The life estate of Toby was enough for that to 
 operate upon. 
 
 No case cited for the plaiatifF comes up to this. Mr. Hargrave in his 
 note 2 to Co. Litt. 20 b, cites Moore, case 711, for the decision, that a 
 devise to one et lueredihus legitime prooreatis is tail ; but the case of that 
 number is in prohibition, and has nothing to do with the subject. In 
 Church V. Wyatt there were other parts of the will of much more weight 
 than the particular words in question ; the estate being devised over, 
 only in case the first devisee should die -without fruit of her body. And 
 in Barret v. JBeokford, what Lord Hardwicke says, must be applied only 
 to the case before him, where there was also a limitation over, if the 
 first devisee died without legitimate heirs. These expressions unequivo- 
 eally confined the issue to the body of the devisee, and therefore there 
 was a plain intention in the testator that the inheritance should be re- 
 stricted. Nothing of that kind exists here. The testatrix was anxious 
 •that the heirs should be lawful, but she did not care who got them. 
 
 Our. adv. vutt. 
 
 The case was again argued at the present term, by Condy for the 
 plaintiif, and by Tilghman for the defendants, upon the question, whether 
 the defendants were not protected by the statute of limitations. 
 
 For the defendants it was said that the statute was founded in public 
 convenience, and that its principle was so reasonable, that courts of 
 equity had applied it to cases to which in strictness it did not extend. 
 Johnson v. Smith, 2 Bur. 961 ; Gh-een v. Eivett, 2 Salk. 421 ; Eldridge 
 V. Knott, Cowp. 215 ; Sir Thomas' Standish v. Badley, 2 Atk. 171. When 
 it once begins to run, no disability of infancy, coverture, or the like, will 
 
Lessee op Hall v. Vandegeift. 81 
 
 prevent its running on, until the limitation is out. St. John v. Turner, 
 1 Eq. Abr. 314 pi. 4; Neoarre v. Button, 2 Eq. Abr. 9 pi. 6. Hence 
 if the statute began against Solomon Hall the younger, it will run against 
 his issue, and the court will favor the application of it to protect such 
 defendants as these. 
 
 Solomon Hall released to John his brother on the 30th of August, 
 1750. This release inured solely by way of extinguishment, as the 
 releasee could not have the thing released. Litt. sec. 479, 480. It fol- 
 lows therefore that from the moment of the release there was a possession 
 adverse to the estate tail of Solomon, which continued to the bringing 
 of ,this action in 1804, and is a bar. If the release had passed any 
 estate, I grant that during its continuance the statute would not have 
 run against the grantor, because the possession would have been accord- 
 ing to the grant. But it is not so where nothing passed, but the grant 
 merely extinguished the right of the releasor. 
 
 For the plaintiff. There are two reasons against the application of 
 the statute, first because it runs, in express terms, only from the time 
 when the right or title to the same first descended or accrued. 2 St. 
 Laws 28, Act of 26th March, 1785. Now Solomon Hall the younger 
 could have no right or title to this estate until the death of John Hall 
 without issue in 1785 or 1786, and twenty-one years did not elapse be- 
 tween that time and the commencement of the action. Dm'ing John's 
 life, Solomon had only .a possibility to take the estate upon a futm-e 
 event, and therefore it was impossible for the plaintiff during John's 
 life to do anything to obtain possession. Neither he nor his father was 
 entitled to it. The statute was not intended to bar those who could not 
 bring a suit. Besides, John and those claiming under him were in pos- 
 session lawfully during John's life, and they could not elect to be in by 
 wrong and adversely to us under the deed of Solomon. A second reason 
 is, that if the argument were allowed, it would introduce a new mode 
 of barring entails, never before heard of. The tenant in tail can bar 
 his issue only by fine or recovery, or by lineal warranty with assets. 
 
 TiLGHMAN, C. J. — The first question in this case is, what estate passed 
 to Solomon Hall by the following devise in the will of Sarah Mallowes. 
 "I give and bequeath to my kinsman Solomon Hall £10 in lawful 
 money, likewise 60 acres of woodland, joining on the northeast side the 
 
 F 
 
82 Lessee of Hall u. Vandegkipt. 
 
 plantation he now dwells on, I give to Mm and his lawful begotten hdr 
 forever. The first reading of these words made a strong impression on 
 my mind that the land was intended to go to the lawful issue of Solo- 
 mon Hall ; and that impression has been strengthened by the argument 
 which we have heard and by subsequent reflection. I cannot think, 
 that an unlettered person as the testatrix evidently was, would make a 
 distinction between the expression " his lawful begotten heir," and " the 
 heirs lawfully begotten by him." If the devise had been to him and to 
 the heirs lawfully begotten by him, it would have been a clear estate tail. 
 I will consider the objections against an estate tail, and the authori- 
 ties which have been cited. It is objected, that the words forever indi- 
 cate an intent to give a fee. But these words are properly applied to 
 an estate tail, because an estate tail may continue forever, and was, at 
 common law, a fee-simple of a particular nature. It is next objected, 
 that there can be no estate tail, because the devise is to the lawfully 
 begotten heir, not heirs. Lord Coke, in 1 Inst. 8 b, does say, that a 
 gift to A and his heir is only an estate for life ; his opinion is upon a 
 gift by deed, and therefore not strictly applicable to a devise. But even 
 on a deed, the opinion of Coke is positively denied by Eyre C. J., in 
 delivering the opinion of the court in Duhber v. Trollop, 8 Vin. 233, 
 pi. 13. His expressions are, that " the opinion of Coke is not warranted 
 by anything, in Littleton, and is directly contrary to 39 Ass. s. 20, where 
 lands were given to a man and his wife and one heir of their bodies, 
 which was held to be an estate tail." In Whiting v. Wilhins, 1 Buls. 
 219, a devise to A forever, and after his decease to his heir male for- 
 ever, was adjudged an estate tail. It is there said, that heir male and 
 heirs male is all one, because heir is nomen oollectiwm. The plaintiff's 
 counsel cited other cases to the same purpose, which it is unnecessary 
 to notice, as the point is sufficiently clear. The last and principal ob- 
 jection is, that it is not expressed from whose body the heirs shall issue, 
 but only that they shall be the heirs of Solomon Hall, and that they 
 shall be lawfully begotten. The rale of law certainly is as laid down 
 ■ in 1 Black. Comm. 113, that to create an estate tail, it must appear from 
 whose body the issue is to be. The question still recurs, does it not 
 appear by this devise ? It is sufficient, if the intention of the testator 
 appears with reasonable certainty. But it is not necessary that the body 
 from which the issue is to come should be mentioned in express terms. 
 Why was the word begotten introduced into this devise, if not intended 
 
Lessee of Hall v. Vandegrift. 83 
 
 to designate heirs begotten by the devisee ? It is too far-fetched an idea 
 to suppose that the testatrix looked to the general heir, and used the 
 words lawfully begoUen only to prevent any person unlawfully begotten 
 from inheriting. The defendant's counsel think it unnatural that an 
 ignorant woman should take it into her head to create an estate tail. I 
 agree with them, that she might not think of an estate tail, because 
 probably she did not know what it was. But it was very natural that 
 she should msh to limit the estate to the issue of the devisee. The 
 desire of coniinuig property to a particular family seems deep rooted in 
 the hximan breast. From whence this passion springs, which delights 
 in exercising a kind of dominion over property after death, it is unnec- 
 essary to inquire. But the fact is, that we see it prevail in people of 
 oM conditions. 
 
 I have hitherto considered the intention of the testatrix, as appearing 
 only from the words which I have mentioned. But there are other 
 parts of the will which strengthen the idea of an estate tail. In the 
 concluding paragraph the testatrix devises land to her kinsman Joseph 
 Hall and to his lawful heirs forever. Also for the love and affection 
 she bears him, she gives to him and his heirs forever, all the reversion 
 of what she had before given of her estate both real and personal. 
 Here it appears, that Joseph was her favorite, and that she knew how 
 to give an absolute fee-simple, where she intended it. The devise of 
 the reversion may it is true be satisfied, by referring it to a piece of land 
 which had been given in the former part of the will, to the negro boy 
 Toby expressly for life. But it may also be referred to the land devised 
 to Solomon Hall, and at all events it leaves no ground for the argument 
 which might otherwise have been raised, that a fee-simple was intended 
 to Solomon, because there was no devise of the reversion. 
 
 These are the arguments which would have satisfied me, that Solomon 
 took an estate tail, if no authorities could be produced on the subject. 
 But we are not without respectable authority. Mr. Hargrave in his 
 edition of Co. Litt. note 121, says, a devise "to one and his heirs law- 
 fully begotten," is an estate tail ; and he cites 43 Eliz. Rot. 1408 ; 
 Moore, case 711. It is very true that nothing is to be found in Moore 
 to support this opinion. There is certainly a mistake in the reference 
 to Moore. Whether the original roll justifies Mr. Hargrave's citation, 
 we are left to conjecture. In general he bears the character of a man 
 of accuracy. But what has much greater weight with me is the opinion 
 
84 Lessee op Hall «; Vandegript. 
 
 of Lord Hardwicke in Barret v. Beckford, 1 Ves. 521, that a devise to 
 one and his heirs lawfully begotten, means heirs of his body. The case 
 decided by Lord Hardwicke did not turn on those words, but the opinion 
 I have mentioned was given in the course of his argument. It is not 
 of equal authority with an adjudged case, but considering the man from 
 whom it came, it carries weight with it. Upon the whole I am well 
 satisfied that Solomon Hall took an estate tail. 
 
 The second question is on the act of limitations, and will depend on 
 the effect of the deed of the 30th August, 1750, from Solomon Hall 
 deceased (father of the lessor of the plaintiff) to John Hall son and 
 heir of Solomon the devisee. At the time of making this deed, John 
 Hall was seized of the premises as tenant ia tail, and Solomon (the 
 grantor or lessor) was not seized of any estate, but had a possibility of 
 becoming tenant in tail, in case of John's death without issue. The 
 deed contains words of grant, as well as of release, and there was a small 
 consideration of money. It is contended for the defendant, that this 
 deed operated by way of extinguishment only, and that the act of lim- 
 itations began to run from its date. If the grantor had any right ca- 
 pable of being transferred, the deed would operate as a legal transfer 
 during his life. It would pass an estate in fee-simple, defeasible by the 
 entry of his issue. It did not take away the right of entry of his issue, 
 because it could not work a discontinuance of the estate tail. I cannot . 
 conceive that the act of limitations could take any effect, before the 
 death of John Plall the grantee, because during his life he was rightfully 
 seized of an estate tail. Immediately on his death, a right to the estate 
 tail descended upon Solomon (the father of the lessor of the plaintiff) 
 or would have descended on him, if he had not made the deed before 
 mentioned. From that time there was a possession adverse to the estate 
 tail, and from that time the act of limitations would run. This act 
 made in the year 1785, enacts, that no person shall make an entry into 
 any lands, etc., after the expiration of twenty-one years next after his 
 title first descended or accrued, nor shall any person maintain any action 
 for any lands, etc., of the seizin or possession of himself or his ances- 
 tors, or declare or allege any other seizin or possession of himself or his 
 ancestors, than within twenty-one years next before the commencement 
 of his suit. Now the right of the lessor of the plaintiff's father Solomon 
 Hall, first descended or accrued on the death of John Hall his brother 
 within twenty-one years before the commencement of the suit. At the 
 
Lessee op Hall, v. Vandegeift. 85 
 
 time of his making the deed, he had neither right nor title accrued, but 
 only a possibility that it might thereafter accrue. It is the spirit of the 
 act of limitations to allow twenty-one years from the time that a person 
 might make an entry, or support an action ;- understanding always that 
 when the twenty-one years once begin to run, they shall not be sus- 
 pended by infancy, coverture, or any other circumstance. Upon this 
 principle, the lessor of the plaintiff is not barred of his action. I am 
 therefore of opinion, that he is entitled to a judgment. 
 
 Yeates, J. — It is admitted on all hands, that the words "heirs of the 
 body " are the proper technical terms, to create an estate tail in all grants 
 and gifts by deed ; but it is also certain, that the precise expressions de 
 corpore are not indispensably necessary in such cases to create an estate 
 tail, so long as there are other words equivalent ; as in a grant to " a man 
 and his wife, and the heirs by them procreated," or " to a man and his 
 heirs which he should beget on the body of his wife," etc., Co. Litt. 
 20 b, 7 Co. 41 b. 
 
 In wills the fundamental principle is, that the intention of the testa- 
 tor shall govern the construction ; provided the estate devised be not 
 inconsistent with the rules of law. It is a melancholy truth, that men 
 too frequently postpone putting their houses in order, and making their 
 final arrangements until the last moments of their existence. Hence 
 the legal presumption arises, that in the performance of this solemn act 
 they are ignorant of the law and without learned counsel ; for which 
 reason the law will execute their intention, if it can be plainly collected 
 from the expressions they have made use of. 
 
 By recurring to the instrument before us, we find, that Sarah Mallowes 
 the testatrix, bequeathed " to her kinsman Solomon Hall £10 ; likewise 
 60 acres of woodland adjoining on the northeast side the plantation he 
 then dwelled on, she gave to him and his lawful begotten haire forever." 
 To her negro boy Toby, she gave 10 acres of land lying on the north- 
 east corner of her land, to have during his life : " and to her kinsman 
 Joseph Hall and to his lawful heirs forever, she gave all her plantation, 
 that she had not before given, with all the improvements thereon to him 
 and his heirs forever ; and for the love and affection she had unto him, 
 she gave and bequeathed to the aforesaid Joseph Hall, all the reversion 
 of what she had therein before given of her estate both real and per- 
 8 
 
86 Lessee of Hall v. Vandegeift. 
 
 sonal, or of what kind or natxire soever unto her said kinsman Joseph 
 Hall and his heirs forever." 
 
 It appears, then, that Joseph Hall was the favorite object of her re- 
 gard and affection ; and that whoever penned the will, knew well how 
 to describe an estate for life, as well as an estate in fee-simple. It would 
 naturally occur to any one who reads this will, to inquire why in the 
 devise to Joseph Hall the words used are to him and his heirs forever, 
 and in the devise to Solomon to him and his lawfully begotten heir forever, 
 if the testatrix meant to grant to each devisee a fee-simple ? This dif- 
 ference of phraseology would seem to import a difference of intention ; 
 and this construction is fortified, in my idea, by the expressions " his 
 lawfully begotten heir." The pronoun his coupled with the other 
 words, has the same signification as by him lawfully begotten, negativing 
 the idea of collateral heirs ; and fieir in the singular number, would seem 
 to point to the individual heir at common law, claiming per formam 
 doni, in contradistinction to the rules of descent established by our acts 
 of assembly. At the same time, I freely admit, that heir may be nomen 
 colledivum as well in deeds as wills, and operate in both in the same 
 manner as heirs in the plural number, according to the authorities cited 
 in Hargrave's note 4 to Co. Litt. 8 b. The expressions forever are 
 often inserted in the formation of estates tail. The issue in tail may by 
 possibility exist the same period of time as general heirs. 
 
 The case of Abraham v. Twigg was cited by the defendant's counsel 
 from Cro. El. 478. It is said in the conclusion thereof, that in a devise, 
 -the words of the body must be expressed to make an estate tail. But 
 this is contradicted by the whole current of authorities ; and in a more 
 full report of the same case in Moore 424, the instances of feoffments 
 and wills are expressly distinguished from each other in this particular. 
 The rule at law is, that in every estate tail, within the statute of Westm. 
 2, it must be limited either by express words, or words, equipollent, of 
 what body the heir inheritable shall issue. Co. Litt. 27 b. And if it 
 be not expressed, it cannot be taken to be within the equity of the said 
 statute ; so that if the gift be to one and his heirs, females or males, 
 the donee has a fee-simple. Litt. s. 31. The only question here there- 
 fore is, whether the testatrix has used sufficient words to limit the inher- 
 itance of the 60 acres of land in dispute to the issue of Solomon Hall. 
 To the different abridgments for the several decisions on this subject, I 
 refer. 10 Vin. 254 ; T. 5, Tail— 3 Com. Dig. Devise N. 5, 26, 1st 
 
Lessee of Hall v. Vandegeift. 87 
 
 ed. — 2 Bac. Estate Tail B. 259, 1st ed. The expressions of Lord Hard- 
 \\'icke in Barret y. Be'ckford, 1 Ves. 521, are very strong. The proper 
 construction of legitimate heirs, is heirs of his body lawfully begotten ; 
 for if to him and his heirs lawfully begotten, that would be heirs of his 
 body. 
 
 But the case which most nearly resembles the present, is that of 
 Church V. Wyatt, Moore 637, case 877 ; Hil. 37 Eliz. C. B. Eot. 1408, 
 (which in Hargr. note 2, to Co. Litt. 20 b is called 43 Eliz., but in the 
 same court, term, and roll.) There one seized of a copyhold inheritance, 
 surrendered it to the use of his will ; and having a daughter born, and 
 a child in ventre sa mere, devised part of the land to his son or daughter 
 in ventre sa mere, wherewith his wife was then going, and hoffredibus 
 suis legitime procreatis, and the residue he devised to his daughter born, 
 to have to her and the fruit of her body, and if she should die without 
 fruit of her body, remainder to the child in ventre sa ndre, and if both 
 should die without fruit, etc., then that J. S. should sell the lands ; and 
 he willed, that one should be heir to the other. And all the justices 
 agreed that it was an estate tail in the daughter after born. It is true, 
 that case was stronger than the one now before the court, by reason of 
 the words without fruit of their bodies, and thai one should be heir to the 
 other. But we have the authority of Lord Chief Baron Comyns in the> 
 third volume of his Digest N. 6, Devise p. 26, 1st ed., that the words 
 " hceredibus suis legitime procreatis," in a will, create an estate tail with- 
 out other words ; and Mr. Hargrave in his note before referred to, adopts 
 the same opinion. The different operation of the same words in deeds 
 and wills is strongly marked in Idle v. Coke, 2 L. Bay. 1144; 1 Wms. 
 70; Salk. 620; 11 Mod. 57; Holt 164; and conceiving here that the 
 intent of the testator was plain and manifest, that the inlieritance of the 
 60 acres in question was limited to the lawful issue of Solomon Hall, I 
 am of opinion that he took an estate tail in the premises. 
 
 A second point has been made and argued during the present term. 
 It has been objected that the plaintiff is barred from recovery of the 
 premises by the act of limitations, the release of the 13th August, 1750, 
 operating by way of extinguishment ; that no interest whatever passed 
 thereby, and the statute then attaching, it ran on notwithstanding sub- 
 sequent infancy, coverture, etc. But the release of Solomon (the second) 
 did pass his future contingent interest in case he should survive his 
 elder brother John, and that the same John should die without issue. 
 
88 Lessee op Hall v. Vandegeipt. 
 
 Were this even otherwise, the plaintiff would not be barred. Previous 
 to the act of 26th March, 1785, the statute of 32 Hen. 8, c. 9, and not 
 the statute of 21 Jac. 1, c. 16, was held to be in force here. 1 Dall. 
 67. Now counting back from even December term, 1804 (when this 
 ejectment was commenced) to August, 1754, only fifty-four years and 
 four months would have elapsed, which is five years and eight months 
 short of the period of time declared by the statute of 32 Hen. 8, c. 9, 
 to operate as a bar. 
 
 If the devise to Solomon Hall was an estate in fee-tail, his eldest son 
 John Hall and those holding under him, were entitled to the legal pos- 
 session of the premises during the natural life of the said John Hall, 
 and therefore they could not be considered as holding by an adverse 
 title to the lessor of the plaintiff. The act of assembly of the 26th 
 March, 1785, 2 St. Laws 281, was passed previous to the death of John 
 Hall, as it is agreed that he died in the latter end of 1785 or beginning 
 of 1786, and consequently the estate tail then descended on and accrued 
 to him. Before this time he could make no legal entry, nor support an 
 ejectment. The provisions therefore of the law of 1785 only can pre- 
 clude him from recovering the lands in question. But his case is not 
 embraced by the act, the second section enacting, " that from henceforth 
 no person shall make entry into any manors, lands, etc., after the expi- 
 ration of twenty-one years next after his right or title to the same first 
 descended or accrued." There is an interval of nineteen years between 
 1785 and 1804, and therefore the act interposes no bar in the present 
 case. 
 
 Whatever my private feelings may be in favor of innocent purchasers, 
 I feel myself bound to give my voice that judgment be entered for the 
 plaintiff. 
 
 Beackeitridge, J. — To make this an estate tail there are wanting 
 the words of the body; and it is only on the ground of an intention to 
 entail, that the words used can be construed an entail ; and this on the 
 grouuH of an indulgence in a devise. But I do not believe that an es- 
 tate of this nature was intended ; and this from considering, 
 
 1. The rank and country of the devisor. Had she been of the gen- 
 try or nobility of England, I could more readily have inferred the family 
 pride of preserving an estate unbroken, and continued in the succession 
 
Lessee op Hall v. Vandegrift. 89 
 
 of a single heir. But the will in question was made in this State, and 
 by an inhabitant of it. 
 
 2. The nature of the estate devised. It is not such a possession as 
 one would suppose she could have had a wish to preserve undivided : 
 a piece of woodland conterminal to the estate of the devisee ; a strip of 
 60 acres, which if not given out and out, as we say in common parlance, 
 would not so well suit the estate which he had adjoining. 
 
 3. I cannot easily suppose that if she had considered it an estate tail, 
 there would not have been some understanding of it in the immediate 
 devisee, and his family, and some tradition respecting it; whereas it 
 appears not to have been thought of on the son of the devisee taking. 
 Else why releases from the other children, if as heir in tail he could 
 alone take ? Or why not bar before alienation ? It is evident that it 
 did not come into his mind, or of those concerned at that day, that it 
 was not a fee-simple. 
 
 The reversion she bequeaths to Joseph Hall, is satisfied by referring 
 to the life estate in the devise immediately preceding to the boy Toby ; 
 so that it will not be necessary to construe this an estate tail in order to 
 constitute a reversion. 
 
 But from the terms of the devise, must not an intention be inferred 
 of devising in tail ? No. The language of the will is that of a half 
 learned person, with motes of law terms glimmering in his brain ; but 
 without seeming to know the use of each, in its particular place. Law- 
 ful heir, begotten heir, used now, and omitted again, carries with it evi- 
 dence to me, of one who was aiming at the diction of the learned ; or 
 having an idea that certain terms of art were necessary in a will, without 
 knowing where to place them. 
 
 But are not the terms such as are peculiarly applicable to an estate 
 tail ? The word heir in the singular number (for I will read it heir, 
 though it is spelt haire) and the word begotten. Agreed. But there is 
 the word "forever," that is destructive of their special meaning, and 
 goes to the fee-simple. It is the natural adjunct of a fee-simple, and 
 inconsistent with an estate tail ; which, in the nature of it, is not sup- 
 posed to last forever, but to be revertible to him from whom it came. 
 An estate tail freely given, yet would be raised to an estate in fee-simple 
 by the word forever, as implied in the observations of Lord Mansfield. 
 Cowper 412. The law contemplates as certain the determination of 
 every estate tail. Fearne 171. And " a life estate to M (wife), remain- 
 
90 Lessee of Hall v. Yandegeift. 
 
 der to M (daughter) and the heirs of her body lawfully begotten, or to 
 be begotten, as tenants in common," gives a fee-simple by purchase. So 
 I say of the word forever. It is a word technically belonging to the 
 fee-simple ; and being the more worthy, in the language of gramma- 
 rians, must qualify and raise the special meaning of the others to its own 
 dignity. 
 
 I must confidently demand that this at least be granted me, that the 
 word forever qualifies, so far as to leave in balance the evidence of in- 
 tention drawn from the mere force of the terms. The question then 
 will be, to which construction shall I incline, where the evidence of in- 
 tention is in balance. I speak of the evidence which is attempted to 
 be drawn from the use of the terms. Which estate shall be favored, 
 that of the entail, or the fee-simple ? If we advert to juridical history, 
 we shall find that the fettering of alienation by the fee conditional at 
 the common law, was not a favorite of the judges, but that they winked 
 at the evasion of it ; or in the words of Blackstone, " gave way to a 
 subtle finesse of construction, in order to shorten the duration of these 
 estates." And he goes on to observe that " when the nobility by pro- 
 curing the statute de donis, introduced the fee-tail, the courts, by a kind 
 of piafraus, eluded the statute, by a fiction in barring the entail." And 
 though the maxim of serving the intention in a devise, was extended 
 in the construction of an estate tail, as well as with regard to any other 
 subject of a devise, yet it is impossible not to see, in the juridical history 
 of British decisions, what I may call an emancipation from the shackles 
 of early precedent, in the case of entails ; and I cannot but be of opinion, 
 that M^ere the same judges who at early period made some of those de- 
 cisions, on a bench at this day, they would be shackled still less ; in this 
 country, more especially, where a change of property under such deci- 
 sions, could not aifect ; and where, in inferring an intention, they would 
 look to the manners, customs, and habits of the people. 2 Massachu- 
 setts Reports, 62. 
 
 Nor is it only to these that we are to look, but to the laws of a com- 
 munity, and the policy of a construction according to the spirit of the 
 statutes on the same subject. Under our colonial government, the policy 
 of the entail became more questionable than it was in the mother coun- 
 try. The right of primogeniture did not exist in the same extent ; nor 
 was there the same reason* for it, the support of a nobility. If we look 
 to the eaiiy laws of distribution in the case of intestacy, we shall dis- 
 
Lessee op Hai^l v. Vandegrift. 91 
 
 cover the inclination to subdivide estates amongst the individuals of a 
 family, which is totally repugnant to the succession of a single heir. 
 Is it not justifiable in narrowing or enlarging rules of construction, to 
 look at the progress of alterations in the law itself by the legislature of 
 a country ? Is it not justifiable to look at even the change in the state 
 of society which may vary the reason of a rule ? We brought no church 
 establishment with us from England, to enable us to provide for younger 
 branches ; nor was there an equal opportunity of advancement in the 
 arn»y or navy. The lockihg up estates was unfavorable to the " enlarg- 
 ing the empire, and promoting useful commodities," which is recited 
 in the charter as a consideration of granting it, and to which the sub- 
 division of property was favorable. Shall we not take these things into 
 view in the indulgence we shall give to the construction of terms not 
 technically constituting an estate tail ? In the application of a rule of 
 construction, or even in the application of a principle under a different 
 state of things, there is this latitude. Talis enim est humani juris dis- 
 dplina, ut opiniones, secundwm varietatem temporum, senescavi et inter- 
 moriantur alimqwe diverscs renascantw, et deinde pubescant. A rule of 
 construction is spoken of as flexible. See Blackstone's argument, Perrin 
 V. Blake. Why not yield to a change in the genius and spirit of a 
 system ? 
 
 But taking it even according to the precedents to which we are re- 
 ferred of British decisions at the earliest period in the construction of 
 terms, there has been none read that comes up to this. Nay, devises, 
 as it would seem to me, more looking like an estate tail, have been ad- 
 judged a fee-simple. I refer to the case of Abraham v. Twigg, " heir 
 male lawfully engendered," held not an estate tail, because there was 
 not any body from whom this male heir should come. This case was 
 that of a deed ; but it is added in the report, Cro. Eliz., 478, that " so 
 it is in the case of a devise." 
 
 In the devise in question there is not only the want of the word body, 
 which must be supplied to make an estate tail, but the word ever, which 
 must be rejected to keep clear of the fee-simple. I incline more to re- 
 ject the word "begotten," and the insensible word "haire;" and the 
 devise will then be " to him and his forever," which in a devise is a 
 fee-simple. 
 
 The word haire is insensible, and I must reject one letter, and trans- 
 pose another, to make it heir. Why this spelling to make out an estate 
 
92 Allin v. Bunce.— Hall v. Vandegeift. 
 
 of questionable policy, and of extreme hardship in an individual case? 
 There can be nothing collected of improvidence in the ancestor, or that 
 in transferring to the defendants, or those under whom they hold, there 
 was not a full and valuable consideration which has substantially come 
 to the use of the family, and of which the plaintiff himself may be 
 presumed to have participated ; and the amelioration of the property 
 which may be presumed to have been made by the labor and the money 
 of the defendants^ must aggravate the hardship of a recovery against 
 them ; more especially as they are without warranty from the ancestor, 
 and even if they were not, the value of the estate more than half a cen- 
 tury ago, would go but little way to alleviate the misfortune. It cannot 
 therefore be supposed that under these circumstances I can have any 
 great inclination to collect and infer from technical terms merely, an 
 intention which does not appear by declaration plain, or necessary and 
 unavoidable inference. But the fact is that I could not possibly infer, 
 were I disposed to indulge a construction, that she meant a taking in 
 succession by the eldest born. The tout ensemble of the whole will to- 
 gether carries with it to me intrinsic evidence of the contrary. I take 
 it to have been drawn by some clerk's vade mecum scrivener of the 
 neighborhood, who had seen words in forms, and took them to be nec- 
 essary in a last will and testament, without distinction of the use. This 
 from my knowledge of the country, and what is usual in such cases. 
 And I take it from the length of time that had elapsed before the idea 
 of an estate tail in this case would seem to have been entertained, that 
 the discovery of it at last was a matter of accident ; and that it may 
 well be called a windfall to the plaintiff succeeding in it. The terms 
 of this devise therefore, on the strictest precedents, not imperiously de- 
 manding of me the construction contended for, I shall not give it ; but 
 hold the estate devised in this case a fee-simple. It becomes therefore 
 unnecessary for me to go into a consideration of the other point that has 
 been made in the argument, the statute of limitation. 
 
 Judgment for plaintiff. 
 
 "An estate tail may be described to be an estate of inheritance deriving 
 its existence from the statute de donis conditionalibus, which is descendible 
 to some particular heirs only of the person to whom it is granted, and not 
 to his heir general," 1 Cruise 78. 
 
Allin v. Bunce. — Hall v. Yandegeift. 93 
 
 Origin of Estates Tail. 
 
 By the ancient common law, all freehold estates of inheritance fell within 
 one of two classes. (1.) Fee-simple absolute; (2.) Limited fees. This second 
 class was subdivided into qualified or base fees and fees conditional. Frcjm 
 this latter subdivision estates tail took their rise, as said by Littleton, Sect. 
 13, 18 b. "Tenant in fee-tail is by force of the statute of W. 2, Cap. 1; for 
 before the said statute all inheritances were fee-simple, for all the gifts 
 which be specified in that statute were fee-simple conditional at the common 
 law, as appeareth by the rehearsal of the same statute." 
 
 The fee conditional at common law was where an estate was granted to 
 one and the heirs of his body. The construction given to such a limitation 
 was that it was a grant in fee-simple on condition that the grantee had 
 issue. When the donee had issue, the condition was held performed, and 
 consequently gone, and the estate became a fee-simple, absolutely unfettered 
 for purposes of alienation. Blackstone goes ftirther than this, and says 
 that the estate became, on birth of issue of the donee, " absolute and wholly 
 unconditional." Bl. Com., Book II., p. 111. This, however, is questioned 
 by Chitty in his note to the passage cited, on the authority of Nevil's case, 
 7 Rep. 33 a, and Willion v. Berhky, Plowd. 247, and the law is, by him, 
 asserted to be that though the donee, after having had issue, might freely 
 aliene his land, yet, if he did not, the donor would still be entitled to a 
 right of reverter upon failure of the donee's issue. 
 
 Without doubt, in most cases, this interpretation, by promoting the ease 
 with which land could be conveyed, was contrary to the intent and desire 
 of the grantor in creating the conditional estate, and was subversive of the 
 object of the grant, which was to bind tenants to a feudal superior by insur- 
 ing a continuance of a certain family as the possessor of the grantor's bounty. 
 To correct this, the statute of Westminster 2 (13 Edw. I., c. 1), commonly 
 called de donis conditionalibus, was passed. It ordained that "the will of 
 a donor, according to the form of the deed of gift manifestly expressed, be 
 henceforth observed ; so that to whom a tenement was given under such 
 condition shall have no power to alien the tenement so given, but that it 
 shall remain unto the issue of them to whom it was given after their death, 
 or shall revert to the donor or his heirs, if issue fail or there is no issue at 
 all." And the second section enacted, " If a fine be levied hereafter upon 
 a tenement so given, it shall be void at law." This second section was re- 
 pealed by statute 32 Hen. VIII., c. 36, except as to fines levied by a woman 
 after the death of her husband of lands which were by the gift of him or 
 his ancestors assigned to her in tail for her jointure, and as to entails by 
 act of parliament a letter-patent, where the reversion was in the crown. 
 
94 Allin v. Bunce. — Hall t;. Vandegrift-. 
 
 Recogrnition of Estates Tail in the United States. 
 
 Upon the settlement of this country, the common law as modified by the 
 statute de donis became the general law of the land, the statute being 
 recognized, it is believed, in all the original States, except South Carolina, 
 where the fee-simple conditional at common law existed as an estate from 
 early times, llurrell v. Mathews, 2 Bay 397 ; Wright v. Herron, 6 Eich. Eq. 
 441. In 1636, the colony of New Plymouth enacted that all lands thereto- 
 fore entailed, and that should be entailed thereafter, should descend and 
 enure as by the law of England the same ought to do. In Massachusetts 
 colony the same rule was recognized by the "Fundamentals." In Virginia 
 the force and policy of the statute were so far recognized that in 1710 the 
 legislature passed an act forbidding the levying of a fine or suifering a 
 common recovery of an estate tail, and reserving to the legislature itself 
 the sole power of docking an entail. In Connecticut, in 1789, in the case 
 of AUin V. Bunce, 1 Root 96, it was contended that a devise to one and the 
 heirs of his body was of a fee conditional at common law ; but the court held 
 it an estate tail. See also Welles v. Orcott, Kirby 118 ; Chappel v. Brewster, 
 Id. 176. In Pennsylvania, the statute de donis is among those included 
 in the report, made by the judges of the Supreme Court in 1808, of the 
 British statutes in force in that commonwealth. See 3 Binney, Appendix. 
 See also Jewell v. Warner, 35 N. H. 176; Den ex d. James v. Dubois, 1 
 Harrison (N. J.) 285 ; Giddings v. Smith, 15 Vt. 344 ; Pollock v. Speidel, 
 17 Ohio St. 439. 
 
 In Jordan v. Roach, 32 Miss. 48P, the Supreme Court of Mississippi denied 
 that the statute de donis was ever in force in that State ; and estates tail do 
 not seem ever to have existed in Louisiana. 
 
 Species of Estates Tail. 
 
 Estates tail may be generally divided into two classes. 
 
 I. Estate in tail general, whereof Littleton says : " Tenant in tail general 
 is where lands or tenements are given to a man and his heirs of his body 
 begotten. In this case it is said general tail, because whatsoever woman 
 that such tenant taketh to wife (if he hath many wives and by every of 
 them hath issue), yet every one of these issues by possibility may inherit the 
 tenements by force of the gift ; because that every such issue is of his body 
 engendered. In the same manner it is where lands or tenements are given 
 to a woman and to the heirs of her body, albeit that she hath divers hus- 
 bands ; yet the issue which she may have by every husband may inherit as 
 issue in tail by force of this gift, and therefore such gifts are called general 
 tail," Litt., Sees. 14, 15. 
 
Allin v. Bunce. — Hall «. Vandegeipt. 95 
 
 IT. Estate in taD special, which is thus deiiiied by the same authority. 
 " Tenant in tail special is where lands or tenements are given to a man and to 
 his wife and to the heirs of their two bodies begotten. In this case none shall 
 inherit by force of this gift but those that be engendered between them two. 
 And it is called special tail because, if the wife die and he taketh another 
 wife and have issue, the issue of the second wife shall not inherit by force 
 of this gift, nor also the issue of the second husband, if the first husband 
 die," Litt., Sec. lb. To this Coke adds that if lands be given to a man and 
 woman, not married to each other, and the heirs of their two bodies, yet they 
 have an estate tail in respect of the possibility of marriage, Co. Litt. 20 b. 
 
 Estates tail, both special and general, may be limited to heirs male or to 
 heirs female, in which case the heirs of the class named in the deed or devise 
 wUl inherit, to the exclusion of those of the other class, Litt., Sees. 21, 22. 
 
 The estate in frank marriage, which was an estate tail, it is believed has 
 never existed in this country, at least we have discovered no case in which 
 such an estate is mentioned. 
 
 What may be Entailed. 
 
 As to what may be entailed, Hargraves, Co. Litt. 20 a, note 5, lays down 
 the rule that two things are necessary to an entail under the statute de donis. 
 First, that the subject of the entail be land or some other thing of a real 
 nature; second, that the estate m it be of inheritance. Therefore an in- 
 corporeal hereditament may be entailed, but an estate pur autre vie cannot, 
 nor can an estate for years ; for it is but a chattel real, no matter how long 
 its duration. Estates pur autre vie and for years may, however, be so settled 
 by way of remainder, executory devise or trust, that many of the purposes 
 of an entail will be answered. 
 
 In Pennsylvania, prior to the year 1758, an unlocated land warrant was 
 not a subject of an entail, but after that year such warrants began to be 
 regarded as titles, and the land represented by them became entailable. 
 Shoemaker v. Bvffnagle, 4 W. & S. 437. A warrant and survey attended 
 by the payment of the purchase-inoney were regarded as on the same foot- 
 ing as the legal estate in England, and became subject to entail. Lessee of 
 BurMrt, Willis v. Buoher et al, 2 Binn. 455 ; Duer v. Boyd, 1 S. & R. 203. 
 
 Creation of Estate Tail— By Deed. 
 
 The technical words for the creation of an estate tail are to A. and the 
 heirs of his body. The word " heirs " is as necessary in the creation of an 
 estate tail as in that of an estate in fee-simple, for the reason given by Coke, 
 
96 Allin v. Bunce.— Hall v. Vandegeift. 
 
 that every estate tail was a fee-simple at the common law, and an estate 
 tail is but a cut or restraiaed fee ; and it is denied by him that " seed," 
 " issue," or " children," can supply the place of " heirs," Co. Litt. 20 a.— 
 The word " heir," in the singular, may, even in a deed, be sufficient to create 
 an estate tail. It is true. Lord Coke, 1 Inst., 8 b, says that a gift to A. and 
 his heir would give but a life estate, but that this is error is clearly pointed 
 out by TiLGHMAN, C. J., in Hall v. Vandegrift, 3 Binn. ^74, in which case 
 his Honor says, " But even in a deed the opinion of Coke is denied by Eyee, 
 C. J., in delivering the opinion of the coprt in Dubber v. Trollop, 8 Vin. 
 233, pi. 13. His expressions are ' The opinion of Coke is not warranted 
 by anything in Littleton, and is directly contrary to 39 Ass. 20, where lands 
 were given to a man and wife and one heir of their body-^which was held 
 to be an estate tail.' " See also Manwaring v. Tabor, 1 Boot 79, where a 
 deed to A. and the heir male of his body was held to give an estate tail. 
 
 The words of inheritance may be supplied by a reference to another 
 limitation, provided such limitation is clearly of an estate tail, Co. Litt. 20 
 b, as a gift to A., and the heirs of his body, remainder to B., in manner 
 aforesaid. 
 
 The words of procreation " of the body " may be supplied by equivalent 
 expressions. Co. Litt. 20 b, 2 Bac. Abr. 543. 
 
 Where an estate tail is given, the fact that the habendum of the deed 
 creating it, is to the grantee and his heirs, will not enlarge the estate to a 
 fee-simple, Corbin v. Healy, 20 Pick. 514 ; nor will the entail be destroyed 
 by a warranty to the grantee " and his heirs as aforesaid." Id. 
 
 Where a deed is to one, the heirs of his body and assigns, the addition 
 " assigns " wUl not enlarge the estate granted to a fee, Pollock v. Speidel, 
 17 Ohio St. 439. 
 
 The rule in Shelly's case applies in cases of estates tail, as will appear 
 in the note upon that subject. 
 
 By Devise. Regard to Intention of Testator. 
 
 The proper technical words for the creation of an estate tail are the same 
 in a devise as in a deed, but from the regard paid by the law to the intent 
 of the testator, the technical expressions are not essential, and any expres- 
 sions in a will which show that the intent of the testator was to give an 
 estate to a person, and that the said estate should be inherited by his issue 
 will be construed as giving an estate tail. Thus in Clark v. Baker, 8 S. & K. 
 470, the testator devised land to his daughter M., and his granddaughter E., 
 to hold to them and to their lawful issue forever, share and share alike in 
 two equal shares, with the ftirther direction that if either M. or E. died 
 
Allin v. Bunce. — Hall v. Vandbgeift. 97 
 
 without leaving lawful issue of their bodies, then the land should go to the 
 survivor and her lawful issue forever, and if both died without issue then 
 over in fee. This devise was held to give an estate tail to the daughter and 
 the granddaughter. Tilghman, C. J., in the course of the opinion of the 
 court, saying, " Here is a plain intent to provide for each devisee and her 
 issue forever ; that is to say, as long as issue should remain, which might 
 possibly be forever. The intent is equally plain, too, that the issue of each 
 should take through the ancestor by descent, and not wiih the ancestor by 
 purchase, because the land is to be divided into but two parts ; whereas, if 
 even all the chil^en of the daughter and granddaughter were to take as 
 purchasers yith their parents, it might be necessary to divide it into many 
 parts ; and also because there is no mode but by descent in which the estate 
 can be secured to the issue indefinitely. Now the intention of giving to the 
 parents first and then to the issue so long as issue should remain, is an intent 
 to give aa estate tail." And see Stone v. McMulleri, 10 W. H". C. 541. 
 
 Expressions held EqniTalent to "Heirs of the Body." 
 
 The word " issue," in a will, has prima jade the force of heirs of the body, 
 Tayhr v. Tayhr, 63 Pa. St. 481 ; Johnson v. Johnson, 2 Met. (Ky.) 331 ; 
 and the expression " legal heirs " may be construed with like effect, Braden 
 V. Cannon, 1 Grant 60; Same v. Same, 24 Pa. 168. 
 
 A devise to one and " his heirs lawfully begotten," followed by a re- 
 mainder in case the devisee die without heirs, will give the devisee an estate 
 tail, JVatt v. Flamer, 5 H. & J. 10 ; so also will a devise which directs the 
 land to descend to the " lawful heirs from generation to generation," Gause 
 V. TFi%, 4 S. & K. 509 ; or a devise of land to descend to the " legal 
 ofispring" forever, Alkn v. Markle, 36 Pa. St. 117 ; or a devise to A. and 
 " his male heirs," Den ex d. Orane v. Fogg, Penn. (N. J.) 819 ; or when the 
 devise is to one " and his children," and the devisee has no children at the 
 time of the making of the will, Nightingale v. Burr ell, 15 Pick. 104 ; Clark 
 V. Baker, mpra; and this is also the case where the testator has used the 
 word " heirs," and it appears that he has used it to mean children, Seibert 
 V. Wise, 70 Pa. St. 147 ; Parkman v. Bowdoin, 1 Sumn. 359 ; Brown v. 
 Weaver, 28 Ga. 377 ; or where the devise is to one "and his grandchildren" 
 under like circumstances, Wheatland v. Dodge, 10 Met. 502. 
 
 Where the word " heirs " is used, and the will explains that thereby issue 
 is meant, an estate tail will be given, Den d. Holeomh v. Lake, 4 Zab. 686. 
 
 A devise to one and his heir, with words showing that the word " heir " 
 is used in the sense of issue as " male heir," or as a nomen collectivum, will 
 give the devisee an estate tail, Hall v. Vandegrifi, 8 Binn. 374 ; Den d. 
 9 G ' 
 
98 Allin v. Bunce.— Hall v. Yandegeift. 
 
 Ewan V. Cox, 4 Hals. 10 ; Brovmell v. Brmmdl, 10 K. I. 509 ; Ouffee v. 
 MUk, 10 Mete, 366. 
 
 Effect of Bemainder in Fee or Tail after an Indefinite FaUiire 
 of Issue. 
 
 A devise in fee followed by a remainder in fee or in tail after an indefi- 
 nite failure of issue is construed an estate tail by implication, Amehng v. 
 Dorneyer, 16 S. & R. 325; Heffner v. Knepper, 6 Watts 18; Amelia 
 Smith's Appeal, 23 Pa. St. 9 ; Pierce v. Sakes, Id. 231 ; Vaughan v. Diekes, 
 20 Id. 509; HanseU v. Huhhell, 24 Id. 244; Wall v. Ma^uire, Id. 249; 
 Eichelherger v. Bamitz, 9 Watts 447 ; Wynn v. Story, 38 Pa. St. 166 ; 
 Owrtis V. Longdreth, 44 Id. 297 ; Matlaek v. Roberts, 54 Id. 148 ; Gast v. 
 Boer, 62 Id. 35 ; Ogden's Appeal, 70 Id. 501 ; Irwin v. Dunwoody, 17 
 S. & R. 61 ; Williamson v. Daniel, 12 Wheat 568 ; Laidler v. Young's 
 Lessee, 2 H. & J. 69 ; Shoofstall v. Powell, 1 Grant 19 ; Braden v. Cannon, 
 Id. 60 ; Sill v. Burrow, 3 Call 342 ; Oi% v. Chamberlain, 30 Pa. St. 161 ; 
 Morehouse y. Cotheal, 1 Zab. 480 ; Sydnor v. Sy^nors, 2 Munf. 263 ; Hulburt 
 V. Emerson, 16 Mass. 241 ; Z)ari v. i)ari, 7 Conn. 250. A provision for a 
 reversion on an indefinite failure of issue ■will have the same efiect as a 
 remainder in fee or tail limited thereon, Hayward v. Howe, 12 Gray 49. 
 By the expressions, " die without issue," or " die without leaving issue," 
 or " having no issue," and kindred expressions, unless there are some quali- 
 fying words showing a contrary intent, a testator will always be held to 
 have meant an indefinite failure of issue. As -said by Weston, C. J.', in 
 Biggs V. Sally, 15 Me. 408 : " The general doctrine of the books, from an 
 early period of the English law, is that a limitation over, if the first devisee 
 dies without issue of his body, is to be understood to mean an indefinite 
 failure of issue. . . . And this is to be the construction, unless it clearly 
 and distinctively appears by the will that the failure of issue upon which 
 the devise over depends, has reference to the time of the death of the first 
 devisee." See also Newton v. Griffith, 1 H. & G. Ill ; Executors of Con- 
 did V. King, 2 Beas. 375 (in New Jersey, however, the rule of interpre- 
 tation has been changed by statute) ; Hall v. Priest, 6 Gray 18 ; Waples v. 
 Harman, 1 Harring 223 ; Nightingale v. Burrell, 15 Pick. 104 ; Parker v. 
 Parker, 5 Met. (Mass.) 134 ; Weld v. Williams, 13 Id. 486 ; AbboU v. Essex 
 Co., 2 Curt. C. C. 126, 18 How. 202 ; Brightman v. Brightman, 100 Mass. 
 238 ; Allen v. Trustees of Ashley School Fund, 102 Id. 265 ; Stone v. 
 McMullen, 10 W. N. C. 641. The nature of the estate limited in remainder 
 is a very important element in determining whether a deiinite or indefinite 
 failure of issue is intended, since a devise over for life necessarily implies 
 that that devisee in remainder may outlive the first estate, Taylor v. Taylor, 
 
Allin v. Bunce. — Hall v. Vandegript. 99 
 
 63 Pa. St. 485 ; Hope v. Rusha, 88 Id. 127 ; but while it is an important 
 element, it is not of controlling force, and the limitation of a life estate in 
 remainder does not of itself convert what would otherwise be construed an 
 indefinite into a definite failure of issue, Watkins v. Sears, 3 Gill 492. 
 
 The addition of " unmarried " to dying without issue, " dying without 
 issue and unmarried," will not turn an indefinite into a definite failure of 
 issue, Vaughan v. Dickes, 20 Pa. St. 509 ; Matlack v. Roberts, 54 Id. 148. 
 
 In general, it may be said that whenever it is apparent that the testator's 
 intent is that the issue shall take by inheritance from the first taker, and 
 an estate in fee or tail is given in remainder on an indefinite failure of issue, 
 then the devise will be construed as giving an estate tail, PoWs Appeal, 30 
 Pa. St. 168 ; in Kentucky, however, a devise to one in fee followed by a 
 devise over in case the first taker shall die without lawfiil issue is held to 
 give a defeasible fee and not an estate tail. Sale v. Orutchfield, 8 Bush 637 ; 
 see also Sart v. Thompson, 3 B. Mon. 482 ; Daniel v. Thomson, 14 Id. 
 662. A devise not expressly iu fee, followed by a limitation in remainder 
 in fee or tail, will give an estate tail to the first devisee. Thus, a devise to 
 A., " and Lf he die without lawful heirs of his body," or " without lawfiil 
 heirs," then over, will give an estate taU, Tate v. Tally, 3 Call 354 ; Doe d. 
 See V. Oraigen, 8 Leigh 449; Den d. Sanders v. Hyatt, 1 Hawks 247; 
 Covert V. Robinson, 46 Pa. St. 274 ; or, " if he die without heir or issue," 
 then over, Lessee of Willis v. Bucher, 3 "Wash. C. C. 369 ; Alhee v. Carpenr 
 ter, 12 Cush. 382. 
 
 A devise for life with a remainder in fee to the heirs of the life tenant, 
 which by the rule in Shelly's case would constitute a fee in the first taker, 
 followed by a devise in fee in case of the death without issue of the first 
 taker, or in case of the issue dying under the age of twenty-one years, 
 will give the first devisee an estate tail, James's Claim, 1 DaU. 47 ; Doe d. 
 Evans v. Davis, 1 Yeates 332. 
 
 A devise to E. W. and his heirs forever, and if E. W. should "die with- 
 out lawful issue of a son" then over, has been held by the Supreme Court 
 of Virginia, Tuckee, P., dissenting, to give an estate tail, Wright v. Cohoon, 
 12 Leigh 370. 
 
 An express devise for life, with the provision that if the devisee should 
 die without lawful issue of her body, her " share " should be divided 
 amongst the other children of the testator, has been held to give an estate 
 tail. Mast and Morris's Appeal, 2 W. N. C. 404 ; so also a devise to B. for 
 life, and should he die without issue, then over, "but should he leave issue, 
 my will is that he may dispose of said land to such of his issue as he may 
 think fit," Callis v. Kemp, 11 Grat. 78 ; Ball v. Payne, 6 Rand. 73. 
 
 A devise to S. S., by her freely to be enjoyed and possessed, but if she 
 
100 Allin v. Bttnce. — Hall v. Vandegeift, 
 
 die without children and heirs of the body, then over creates an estate tail, 
 Shoemaker v. Huffnagle, 4 W. & S. 437. 
 
 A devise to J. S. " and his heirs by his present wife " will give an estate 
 tail, SoTners v. Pierson, 1 Harrison (N. J.) 181. 
 
 An estate tail wiU be given by a devise to one "and his lawfiiUy begotten 
 heir or heirs forever," without words of procreation. Den d. Evans v. Cox, 
 4 Hals. 10. 
 
 A devise to several persons " and the heirs of their bodies " is construed 
 as giving an estate tail in common, Perry v. Kline, 12 Cush. 118 ; so also a 
 devise to several of a class " and the heirs of their bodies begotten," Johnson 
 V. Johnson, 2 Met. (Ky.) 334 ; Brown v. Alden, 14 B. Mon. 144 ; True v. 
 Nicholls, 2 Duval 547 ; Lachland v. Downing, 11 B. Mon. 33 ; Prescott v. 
 Prescott, 10 Id. 58. 
 
 Devise apparently in Fee-Simple Reduced to a Devise in Tail 
 by the Context of Will. 
 
 In some»cases, where the testator in deiining the estate devised has used 
 the words " in fee-simple," they have been made to give way to the context 
 of the will, and an estate in fee-tail has been held to have been given. In 
 Parhnan v. Bowdoin, 1 Sumn. 359, the devise was to A. for life, and after 
 her death to her second son B., and to his lawfully begotten children in 
 fee-simple forever, but in case he should die without children lawfully be- 
 gotten, then over. StoSy, J., said, " ' In fee-simple ' means the same as to 
 their heirs and assigns, and the devise over being to collateral heirs, these 
 words are necessarily cut down to heirs of the body, if the devise over is 
 to take effect only upon an iadefinite failure of issue," and in Price v. Taylor, 
 28 Pa. St. 95, where the devise was to T. for life "provided she shall not 
 leave issue at her death, but if she shall leave issue then to her heirs in fee- 
 simple forever," which, of course, gave T. an estate of inheritance under 
 the rule in Shelly's case, the devise was held to be of an estate tail, Loweie, 
 J., remarking, " The limitation to the issue in fee-simple goes for nothing, 
 as being inconsistent with the lineal descent with which the estate starts." 
 
 A devise to several sons of the testator and their heirs forever, with a 
 provision that if any die without heirs of their body, or issue, their parts 
 shall be divided among the surviving brothers, is held to give an estate tail, 
 Sydnor v. Sydnors, 2 Munf. 263 ; Bells v. Gillespie, 5 Rand. 278. 
 
 Express or Implied Devise in Tail not Enlarged by Implication. 
 
 An express devise in tail will not be enlarged to a fee-simple by being 
 made subject to a charge. Den ex d. Wilson v. Small, Spen. (N. J.) 151 ; 
 
Allin v. Buxce. — Hall «. Vandegeift. 101 
 
 Devfitt V. Eldred, 4 W. & S. 414 ; nor where a devise in fee has been re- 
 duced to a tail by implication will a charge of legacies increase it to a fee, 
 Heffn&r v. Knepper, 6 Watts 18. 
 
 The addition of the words " and assigns " to the usual words of procrea- 
 tion will not enlarge an estate tail to a fee, Doe d. Dor emus v. ZabrisMe, 15 
 N. J. Law 404 ; Lessee of Wright v. iSeott, 4 Wash. C. C. 16. In the latter 
 of these two cases, the devise was to A. and B. " and their heirs begotten 
 of their bodies and assigns forever, or for want of such heirs and assigns " 
 then over ; and the court was influenced to a certain extent by the fact that 
 if the first given estate were enlarged to a fee, the will would then contain 
 a limitation of a fee upon a fee. 
 
 It has been contended that the use of the word " forever " after heirs of 
 the body will enlarge a fee-tail to a fee-simple, but the law is otherwise. 
 Grout V. Townsend, 2 Denio 336 ; Sail v. Vandegrift, 3 Binney 374 ; Den d. 
 Ewan V. CJox, 4 Hals. 10 ; Lessee of Wright v. Scott, supra. 
 
 A devise in tail by apt words will not be enlarged to a fee by a general 
 devise in the same will to the same person of all of the testator's property 
 " except what is before excepted." The exception will cover the former 
 devise as well as what has been devised to other persons, Browne's Lessee 
 V. Anderson, 2 H. & McH. 100. 
 
 In the case of Wight v. Thayer, 1 Gray 284, the devise was to E. " and 
 the heirs of his body lawfully begotten, and to their . heirs and assigns for- 
 ever." It was argued by counsel that though this devise created an estate 
 tail in E., yet after her death it became enlarged to a fee-simple, so as to go 
 to the general heirs of the heir in tail ; but this position was denied by 
 the court. Shaw, C. J., in the course of his opinion said, " But this would 
 be alike inconsistent with principle and authority. An estate taU, though 
 created and brought into existence by deed or will, is stiU an estate of in- 
 heritance, and when once vested and until barred, passes, like other estates 
 of inheritance, by operation of law ; and though it is competent for a de- 
 visor to create as many particular estates as he will to hold in succession, 
 yet it is not competent for him to alter the rules of law which govern the 
 descent of an estate, either in fee or in tail, which has once vested. Were 
 such an intention manifested, it could not be carried into effect, because 
 contrary to the rules of law. If it was an estate tail in Benjamin Hall, 
 then it must continue an estate tail until barred by common recovery or 
 otherwise, or until failure of heirs in tail. So long as there are heirs in 
 tail capable of taking by the form of the gift, there can be no limitation 
 over to heirs general. The very nature of an estate tail is that it is an 
 estate exclusively limited to a particular class of heirs ; the legal construc- 
 tion put on it is that it divides the inheritance or general estate in fee, 
 9* 
 
102 Allin v. Bunce.— Hall v. Vandegeift. 
 
 making a particular estate to the donee in tail and the special heirs, and 
 leaving the estate in the donor, which he may limit over by way of remainder, 
 and which without such limitation will revert to the donor or his general 
 heirs.' 2 Inst. 335. 
 
 " It has been said upon the authority of Lord Coke (Co. Litt. 21 a), 
 cited by the petitioner's counsel, that when a person in the premises of a 
 deed gives land to another, and the heirs of his body, habendum, to him 
 and his heirs forever, he wiU take an estate tail with a fee-simple expectant. 
 In tracing this proposition, it wiU be found to be this : When it is manifest, 
 by the premises, that the donor intends to give an estate tail, and from the 
 subsequent part of the deed it is equally manifest that he intends to give 
 ultimately an estate in fee, it will operate as a grant of a present estate tail 
 with a fee-simple expectant. But expectant upon what event or contin- 
 gency ? Clearly upon the determination of the particular estate, the estate 
 tail, by the failure of heirs in tail, which is its own proper limitation. It 
 operates by way of gift of the particular estate in tail with a limitation 
 over, by way of remainder, to the general heirs of the same donee in fee. 
 Of course, such remainder over in fee cannot take effect until the failure of 
 the issue in taU." See also Buxton v. Uxhridge, 10 Mete. 87. 
 
 An estate to A. in tail will not be reduced by a provision in the devise 
 that if the first taker " should decease not having lawful heirs," the estate 
 should go over in fee or tail, Tidballv. Impton, 1 Rand. 194. A gift to two 
 and the heirs of their bodies will not be cut down to a life estate in. the 
 first takers by a restriction on the power of alienation, and a provision for 
 survivorship between them, followed by devise over in fee in case both 
 should die without issue. As said by Strong, J., lAnn v. Alexander, 59 
 Pa. St. 43 : " An estate tail may be followed by a limitation on a definite 
 failure of issue. So, like an estate in fee, it may depend for its continuance 
 on the performance of a condition, or may be defeated by the happening 
 of a contingency, but when once created it remains an estate tail until the 
 occurrence of the contingency, or until the condition is broken upon which 
 its continuance was made to depend." 
 
 Incidents. 
 
 A tenant in tail has power to commit waste, lAford's Case, 11 Co. 50 a ; 
 Holes V. Petit, Plow. 259; Secheverel v. Z>afc, Poph. 194; Att'y-Gen. v. 
 Duke of Marlborough, 3 Madd. 531. 
 
 An estate tail is subject to dower, Amelia Smith's Appeal, 23 Pa. St. 9 ; 
 Kennedy v. Kennedy, 5 Dutch. 188 ; and curtesy. See Voller v. Carter, 
 4 El. & Bl. 173. 
 
Allin v. Bunce, — Hall v. Vandegbift. 103 
 
 It is not subject to merger, Wiscot's Case, 2 Co. 61 a ; Carell v. Oudding- 
 ton. Plow. 296. 
 
 It is forfeitable for treason, but for no longer period than the life of the 
 person attainted of treason, and this, it seems, independently of the pro- 
 vision in the Constitution of the United States, Roe d. Evans v. Davis, 1 
 Yeates 332 ; Den d. Hinchman v. Clark, Coxe (N. J.) 340. 
 
 Tenant in tail cannot be compelled to keep down the interest of incum- 
 brances, for the estate is his; it is only on his power of alienation that there 
 is a restriction, Amesbury v. Brovm, 1 Ves. Jr. 477 ; Chaplin v. Chaplin, 3 
 P. Wm. 235 ; but the guardians of an infant tenant in tail are bound to 
 do so, so far as the rents and profits of the estate go, Sergison v. Sealey, 
 
 2 Atk. 416 ; Burgess v. Mawhy, 1 T. & R. 176. 
 
 A tenant in tail has power to bar the entail either, as formerly, by means 
 of a fine or common recovery, or by any of the statutory methods now in 
 force, and the right to bar an entail is so essential a part of an estate tail, 
 that the law will not permit the tenant to divest himself of that power, 
 Doyle V. Mullady, 33 Pa. St. 264 ; nor can a testator in giving an estate 
 tail efiectually prohibit the donee barring it, Deviitt v. Eldred, 4 W. & S. 
 414 ; and even when the tenant is out of possession through a sale of his 
 estate, either by himself or through judicial process, he still retains suf- 
 ficient interest therein to enable him to bar the entail, Elliott v. Pearsall, 
 8 W. & S. 38 ; Sharp v. Petit, 4 Yeates 413 ; Hall v. Thayer, 5 Gray 523 ; 
 Watts V. Cole, 2 Leigh 653 ; Waters v. Margerum, 60 Pa. St. 39. 
 
 The tenant in tail cannot alien the land for a longer time than his own 
 life, and his alienee takes an estate pur autre vie, or, rather, a base fee, void- 
 able by the entry of the issue in tail. Watts v. Cole, Waters v. Margerum, 
 supra, Litt., § 613. This is also the case where the land is sold for the 
 debts of the tenant in tail, except where it is otherwise provided by statute, 
 as in Massachusetts (Stat. 1791, c. 60, § 2, p. 412,) and Pennsylvania (Act 
 April 15, 1859, § 1, P. L. 670). 
 
 It would seem that such a statute would not apply to an estate tail in 
 remainder, and it has been so held in Massachusetts, Holland v. Crujt, 
 
 3 Gray 162. 
 
 A statute is necessary to enable the tenant in tail to mortgage the en- 
 tailed land, Todd v. Pratt, 1 H. & J. 465. 
 
 The heir in tail is not bound by a conveyance and release of his ancestor. 
 In Buxton v. Uxbridge, 10 Mete. 87, the testator devised to B. an undi- 
 vided half of a piece of ground in fee, and to C. the other half of the same 
 in tail. B. and C. made partition with mutual releases. The court held 
 that each, thereby, became seized of one-half of his estate in fee and the 
 other half in tail, and C. having aliened his portion, his heirs could recover 
 
104 Allin v. Bunce. — Hall v. Vandegeift. 
 
 one-half thereof frora the alienee ; nor is the heir bound to carry out a 
 contract of his ancestor for the conveyance of the entailed estate, since 
 he claims per formam doni, and not through the bounty of his ancestor, 
 Partridge v. Dorsey's Lessee, 3 H. & J. 302 ; Jones v. Jones, 2 Id. 281 ; 
 and a formal entry by the issue in tail is not necessary to avoid the con- 
 veyance of the ancestor. Den v. Robinson, 2 South. 689. 
 
 Descent. 
 
 At common law the descent of an estate tail resembles that of a fee- 
 simple, except that the descent must, however, always be traced from the 
 donee in tail. Thus by the common law, lands given to A. in tail would 
 descend upon his death to his eldest son, and on his death without issue to 
 the other sons of A. successively in like manner, according to priority of 
 birth. After the lines of all the sons were exhausted, the land would go to 
 the donee's daughter, if there should be but one, but if there should be 
 more than one, then all the daughters would take jointly. With regard to 
 the more remote lineal descendants of the donee in tail, the descent of an 
 estate tail is the same as that of one in fee. Upon a failure of lineal heirs 
 the estate will either go to those entitled in remainder, or will revert to the 
 donor or his heirs. In an estate in tail male, the issue male will alone 
 inherit, and the same may be said, mutatis mutandis, with reference to 
 estate in tail female, Litt., Sees. 21, 22, 23. 
 
 The common law rule of descent of estates tail obtained at an early day 
 in the United States, Reirihart v. Lantz, 37 Pa. St. 491 ; Sauder v. Morning- 
 star, 1 Yeates 318 ; Corhin v. Healy, 20 Pick. 514. The rule has been 
 changed by statute in many of the States, as will appear in the portion of 
 this note which refers to the statutory regulation of estates tail ; but in the 
 absence of an express statutory change of the course of descent, it may be 
 said that the rule of descent remains as at common law, and that unless 
 expressly included an estate tail will not be embraced within provisions of 
 an intestate act. In Riggs v. Sally, 15 Me. 408, the court said : " The stat- 
 ute law of inheritance, as far as respects intestate's estates, differs from the 
 common law ; but it does not affect estates tail which depend on the will of 
 the donor." 
 
 Methods of Barring Entail. Fine. 
 
 The ancient methods of barring an entail were by levying a fine or suf- 
 fering a common recovery. 
 
 Of the former we find no examples in our reports, and the court in 
 
Allin v. Bunce. — Hall v. Vandegeipt. 105 
 
 Moreau v. Detehemend, 18 Mo. 527, denied that it had ever existed in this 
 country. This assertion is, however, erroneous, since we find it recognized in 
 several statutes, e. g. that of Pennsylvania, of Jan. 27, 1749-50, § 1, and 
 we find that it continued in New York until 1830, when it was abolished, 
 McGregor v. Comdoch, 17 N. Y. 163. It was abolished in New Jersey in 
 1799, and continued in Pennsylvania until 1837. See Kent Com., Vol. IV., 
 p. 497 ; Washburn, E. P., Vol. I., p. 97. The fine was a fictitious action. 
 The person to whom the land was to be conveyed brought an action against 
 the tenant in tail for a breach of an agreement to convey the land, where- 
 upon the defendant applied to the court for leave to compromise the action, 
 which being granted the defendant acknowledged the title to the land to 
 lie in the demandant, which acknowledgment was made in open court or 
 before a judge or a commissioner, and entered of record, and duly enrolled. 
 The fine barred only the issue of the person levying the fine, and therefore 
 created a base fee determinable upon the fkilure of the issue of the person 
 levying, Seymor's Case, 10 Co. 95 b. 
 
 Common Recovery. 
 
 The latter method was early known and practised, it is believed, in nearly 
 all the States in which estates tail existed ; it was at an early date prohibited 
 in Virginia, and is said. Pollock v. Speidel, 17 Ohio St. 439, never to have 
 been known in Ohio, into which portion of the older commonwealth civiliza- 
 tion had not advanced at the time of the abolition of the common recovery. 
 In Pennsylvania, before 1750, there were on record only some three in- 
 stances of a common recovery, owing possibly to a doubt as to their 
 validity ; in 1750, however, the doubt was settled by an act of a declaratory 
 character, which established common recoveries on a firm basis as a common 
 assurance. See Carter v. McMiehael, 10 S. & R. 429 ; Sharp v. Petit, 4 
 Yeates 413 ; Wood v. Bayard, 63 Pa. St. 320 ; Stump v. Findlay, 2 Rawle 
 168. 
 
 The common recovery was at first a collusive action, and it always retained 
 the form of an action even after it was recognized as a common assurance. 
 The tenant in tail procured some one to bring an action against him, claim- 
 ing to recover therein the entailed land, whereupon the tenant " vouched," 
 or called upon a third person, who, he alleged, had warranted the title, to 
 defend it. The vouchee appeared and admitted the warranty, and then 
 made default, whereupon the judgment of the court was that the demandant 
 recover the land claimed and the defendant recover over, from the vouchee, 
 lands of equal value. This was the recovery by single voucher, and it barred 
 the estate of which the tenant in tail was actually seized at the time of suffer- 
 
106 Allin v. Buncb. — ^Hall t?. Vandegbift. 
 
 ing it, but did not bar remainders and reversions. And, therefore, to com- 
 pletely unfetter the estate, there was invented the recovery with double 
 voucher. In this the tenant in tail conveys the land in fee to an indifferent 
 person, known as the tenant to the praecipe, against whom the action is 
 brought; whereupon the tenant to the prseeipe vouches the tenant in tail, 
 who vouches over the common vouchee, and a default being made, the judg- 
 ment is that the demandant recover from the tenant to the praecipe, that 
 he recover from the tenant in tail lands of equal value, and that tenant in 
 tail recover over from the common vouchee. 
 
 It was questioned whether where a tenant in tail was out of possession, 
 his estate having been taken in execution and sold by the sheriff, the 
 sheriff's vendee could suffer a common recovery, and by vouching the tenant 
 in tan cut off the entail. It was held that he could, and that the sheriff's 
 vendee would be a good tenant to the praecipe, Sharp v. Petit, 4 Yeates 
 413. A tenant to the praecipe must by right or wrong have an estate of 
 freehold, an equitable interest will not suffice. Stump v. Findlay, 2 Eawle 
 168. A tenant for life with a vested remainder in tail general, after an 
 intermediate estate for life and various contingent estates tail, can make a 
 good tenant to the praecipe, IajU v. Eichards, 9 S. & R. 322. A common 
 recovery suffered by a tenant in tail after he has conveyed the land will 
 enure to the benefit of the alienee, Den v. Robinson, 2 South. 689. A com- 
 mon recovery will cause judgments previously obtained against the tenant 
 in tail to become liens upon the fee. See Maslin v. Thomas, 8 Gill 18 ; 5 
 Cruise 493, c. 9. 
 
 A common recovery, once suffered, cannot be avoided for any error or 
 defect therein, unless a writ of error is brought or an appeal is taken within 
 the proper time ; it cannot be attacked collaterally, but, like a judgment, can 
 only be impeached for fraud or because the defendant was not tenant of 
 the freehold, Ransley y.Stott, 26 Pa. 126; Wood y. Bayard, 63 Pa. 320. 
 
 Barring by Kecovery against the Estate of tlie Creator of the 
 Entail. 
 
 It being more in accord with the policy of most of the States that land 
 should be capable of easy transfer than that it should be tied up and fet- 
 tered, less cumbersome modes of barring entails were soon sought for, and 
 a method resembling the common recovery, in that it was in form an action 
 at law, was soon formed to apply in cases in which the entail sought to be 
 barred, had been created by will. In this country lands generally from the 
 earliest times were assets for the payment of debts, and therefore,- where the 
 lands of a decedent, who by his will had created an estate in them, were 
 
Allijt v. Buncb. — Hall v. Vandegeift. 107 
 
 sold for the payment of his debts, the purchaser would take an estate in 
 fee-simple, since he 'would take an estate which was prior to the creation 
 of the estate tail, and this was held also to be the case where an estate 
 tail was devised, charged into the testator's debts, and the land was after- 
 wards sold therefor, Gause v. Wiley, 4 S« & E. 609 ; accordingly, especially 
 in Pennsylvank, the practice sprang up of barring an estate tail by bring- 
 ing an action founded on some real or supposed debt of the testator, and 
 selling the land by virtue of a judgment and execution thereon. See the 
 remarks of Chief- Justice Tilghman in Lyle v. Richards, 9 S. &. R. 322; 
 Nohes V. Smith, 1 Yeates 244 ; and Mr. W. H. Rawle's lecture before the 
 Law Department of the University of Pennsylvania, at the opening of the 
 session 1881-2, 38 Leg. Int. 380. 
 
 Writ of ad quod damnnm. 
 
 Another early discovered method was by the writ of ad quod damnum. 
 This method was in use ini Virginia. The policy of Virginia diiFered from 
 'that of the other States, and though she was, under the lead of Jefferson, the 
 first State to actually abolish estates tail, yet, prior to so doing, she treated 
 them with great consideration, and did much to foster and preserve them. 
 Tn 1710, an act was passed prohibiting the use of fines and common recov- 
 eries to bar entails, and reserving to the legislature the exclusive right to 
 dock them. This policy was found to work injuriously in the case of small 
 estates, and accordingly in 1734 the writ in questioa was invented. By this 
 proceeding a writ issued to inquire whether the land, the entail of which it 
 was proposed to bar, were under £200 in value, and whether it did not ad- 
 join other lands of the tenant in tail. If the jury found the value under 
 £200, and that the land did not adjoin other land of the tenant in tail, an 
 order was made, by virtue of which a particular species of conveyance was 
 declared to vest the land in fee-simple, and by the writ the issue in tail and 
 the remainder-men were barred. See Carter v. Tyler, 1 Call 165. This 
 writ had to be sued out by a tenant in tail in possession, and hence, where he 
 had made, a deed to any one elsej,he could not bar the entail, Oleeson'sSeir 
 V. Scott, 3 H. & Mun£ 278. 
 
 No Discontinuance caused by a Deed of Bargain and Sale, or by 
 a Covenant of the Tenant in Tail. 
 
 A deed of bargain and sale by the tenant in tail without assets descend- 
 ing does not bind the issue in tail. Den v. Robinson, 2 South. 689. In Wells 
 v. Newhold, 1 Taylor 166, a bargain and sale by the tenant in tail was held 
 
108 Allin v. Bunce. — Hall v. Vandbgeift. 
 
 to work a discontinuance and to bar the entry of the issue ; but this was 
 denied, and the case overruled in Gilliam t. Jacoehs, 4 Hawks 310, in the 
 course of the opinion on which case Hendbeson, J., said: "A bargain and 
 sale is a rightful conveyance ; the statute transfers the seizin of the bar- 
 gainor to the bargainee ; such a seizin, such an estate as the bargainor had 
 is transferred to the bargainee. I speak not as to parties, but as to strangers, 
 that is, those not claiming under either of them. . . If tenant ia tail, therefore, 
 bargain and sell the entailed land in fee, it is not a discontinuance of the 
 estate tail, for that is a separation of the right from the estate ; for the issue 
 in tail claims not from the tenant in tail, but per formam doni ; he is there- 
 fore a stranger to the bargainor, and as to him the bargain and sale passes 
 only an estate for the life of the bargainor; his estate remaining still ia him, 
 he is not put to his action to recover it, for he has not lost it ; he may enter, 
 which is the touchstone by which is ascertained whether an estate is lost or 
 not, for if the tenant is disseized, and has not by a descent or otherwise lost his 
 right of entry, he may compel the lord to avow upon him and in all respects 
 recognize him as one having the estate, .... and his right of entry will sup- 
 port -a contingent remainder dependent on his estate as the precedent free- 
 hold, and as the issue ia tail after the death of the bargainor may enter 
 (which is not disputed by any one), it proves beyond a doubt that the estate 
 tail is in him and not in the bargainee, that is, the bargainee has no estate 
 of any kiad; for there cannot be two persons ia the same estate at the same 
 time holdiag adversely. . . . There is thus no separation of the right from 
 the estate, they are both united in the issue, there is no discontinuance. . . . 
 I will next endeavor to show that it derives no aid from the warranty on 
 discontinuing the estate ; a warranty is a covenant annexed to an estate. 
 Without an estate there cannot be a warranty. When no estate passes by 
 a deed and the grantee had no estate before, the warranty is a nullity. If 
 an estate is made to a man for life, with warranty to him and his heirs for- 
 ever, the warranty determines with the life estate, it entwines itself around 
 it and must fall to the ground with it. . . It may be now safely asked. Does 
 the discontiauance arise from the warranty, or the bargain and sale, or both 
 combined ? It does not arise from either separately, and there is no estate 
 in the bargainee after the bargainor's death, with which the warranty can 
 combine or unite. In truth, it cannot he a discontinuance unless we entirely 
 change the nature of the thing." See also Mayson's Lessee v. Sexton, 1 Har. 
 & McH. 275 ; Bidc/ely v. McLaughlin, 3 Id. 220. 
 
 In Den d. Jacoehs v. Gilliam, 3 Murph. 47, the tenant in tail aliened with 
 a covenant for himself and his heirs to warrant and defend and secure the 
 possession of the alienee against all lawful claims. It was held that no dis- 
 continuance was worked, and that the warranty was a mere personal cove- 
 
Allix v. Buncb. — Hall v. Vandegeift. 109 
 
 nant, which did not bind the heirs, although assets descended, and that 
 the alienee, or his heirs, on being ousted would be obliged to look to the 
 administration of the grantor's estate for compensation. 
 
 A covenant to stand seized to the use of the covenantee does not work a 
 discontinuance, although the deed be in form one usually accompanying liv- 
 ery of seizin, no such livery in fact being made, Watts v. Cole, 2 Leigh 653. 
 
 The issue in tail cannot before the death of the tenant in tail discontinue 
 by a deed of bargain and sale with a warranty, Hopkins v. Threlkeld, 3 H. 
 & McH. 443. 
 
 Statutory Bar by Deed. 
 
 In most of the United States statutory provisions have been made, whereby 
 estates tail may be barred by a deed executed with greater or less formaUty. 
 
 In Maryland, by statute of 1782, ch. 23, a tenant in tail was given power 
 to convert his estate into a fee by conveying to another and taking back a 
 conveyance in fee-simple, and made it a simple conveyance by bargain and 
 sale vested a fee in the grantee, Laidler v. Young's Leases, 2 H. & J. 69. 
 A devise in fee would not, however, destroy the entail, nor a mortgage, for 
 on the payment of the debt the former estate would revive. Id. 
 
 In Massachusetts, by statute of 1791, c. 61, § 1, p. 413, it was made lawful 
 for any tenant in tail " being of full age, by deed, subscribed before two or 
 more credible witnesses, and acknowledged and recorded, for a good or 
 valuable consideration, hona fide to grant such lands (i. e. held in tail) in 
 fee-simple . . . and such deed . . . shall be sufficient and effectual in law 
 to bar all tails . . . and to vest the absolute inheritance in fee-simple in such 
 purchaser or grantee without any force or common recovery." 
 
 Under this act it has been held that the deed to bar the entail must 
 actually be made for a good or valuable consideration, and it is not sufficient 
 if it purport to be made for such consideration, and therefore that when the 
 tenant in tail without such consideration conveyed his land in fee, by a 
 deed which expressed a valid consideration in order that the land might be 
 reconveyed to him in fee, the entail was not barred, Soule v. Soule, 6 Mass. 
 61 . The " good " consideration of the act includes love and affection , Wheel- 
 wright v. Wheelwright, 2 Mass. 447. In Whittaker v. WMttaker, 99 Mass. 
 366, a devisee in tail in remainder conveyed, by an antenuptial settlement, 
 during the life of the life-tenant, her estate to a trustee in trust for herself, 
 reserving a power of appointment by deed ; after the death of the life-ten- 
 ant, she made an appointment without the assent of her husband, and later, 
 jointly with him and the trustee, conveyed to a new trustee without words 
 of covenant or grant. It was held that the entail was not barred, for the 
 10 
 
110 Allin v. Bunce. — ^Hall v. Vandegkift. 
 
 first deed showed no intent to bar the entail, and there was no possession 
 on the part of the grantor, and the second deed rose no higher than that of 
 which it was a mere execution, while the third merely changed the trustee. 
 Under this statute a deed by husband and wife of the entailed estate of 
 the wife will bar the entail, Nightingale v. Bvrrell, 15 Pick. 104. 
 
 By the second section of the act of 1791, which subjects the estate of a 
 tenant in tail to his debts, the tail may be barred by being taken in exe- 
 cution and held during the life of the tenant or by a sale, for his debts, made 
 by license of court after his death. This applies to estates tail in possession 
 only, and does not extend to estates tail in remainder, Allen v. Trustees of 
 Ashley School Fund, 102 Mass. 265. When the tenant in tail is non compos 
 mentis, a sale for his debts by his guardian, a license of court having been 
 obtained, is within the said section, WiUiams v. Sichbom, 4 Mass. 189. 
 
 In Maine, the Massachusetts statute was re-enacted by statute of 1821, c. 
 36, § 4, and has been declared to have not only a prospective but retro- 
 active force, to act on estates tail already in being, as well as on those created 
 after the passage of the act. Biggs v. Sally, 15 Me. 408. See also Willey v. 
 Saley, 60 Me. 176. 
 
 In Pennsylvania, at an early period in the colonial history, repeated acts 
 were passed for the purpose of docking or barring estates tail by deed ; but 
 these acts were regularly repealed by the Queen in Council. After the 
 revolution, in 1799, was passed the act at present in force, which provides 
 "that any tenant in tail in possession, reversion, or remainder, may convey 
 his land as in fee-simple, provided the deed state the intention of the grantor 
 to bar the entail, and that it be first acknowledged in open court and be 
 recorded." If the deed be not recorded, it loses its efiect as a bar to the 
 entail. Theological Seminary v. Wall, 44 Pa. St. 353 ; George v. Morgan, 16 
 Id. 95, but it will be efiicient to pass the estate of this tenant in tail during 
 his life to the vendee, George v. Morgan, Id. The terms of the act do not 
 cover a devise. In Theological Seminary v. Wall, supra, it was argued that 
 a devise to a charity barred an entail, but, as said by Thompson, J., " It is 
 contrary to all received notions of charity, that a man may devise what is 
 not his own, provided it be to a charity." 
 
 In Rhode Island, a tenant in tail may bar the entail by deed or devise ; 
 the deed must be acknowledged before the Supreme Court or the Court of 
 Common Pleas, Gen. Stat. 1872, ch. 161, § 3, p. 348. See Manchester v. 
 JDurfee, 5 E. I. 549. 
 
 In Delaware, a tenant in tail has power to bar the entaU by a deed. Laws, 
 1874, p. 507. 
 
 In many States, the radical nature of the statutes with regard to entails 
 has rendered unnecessary any specific j)rovision for barring them. 
 
Allin v. Bunce. — Hall v. Vandegeipt. Ill 
 
 While deeds barring estates tail take the place, for all practical purposes, 
 of the old common recovery, they still have not all the properties thereof 
 For example, they have not the same immunity from attack except in 
 specified ways, thus, while a common recovery cannot be set aside on account 
 of the infancy or insanity of the person suffering it, a deed barring an 
 entail may be avoided by proof of the infancy or insanity of the grantor, 
 Wood V. Bayard, 63 Pa. St. 320 ; nor will the execution of a deed barring 
 an entail let in the claim of a prior judgmient against the land, Maslin v. 
 Thmnas, 8 GilllS. 
 
 A deed barring an entail destroys the remainders depending upon it, 
 Greenawalt v. Greenawalt, 71 Pa. St. 488. 
 
 Statutory Abolition and Curtailment of Estates Tail. 
 
 Limitations upon the right of free disposal of land being against the 
 policy of our institutions, we find shortly after the Declaration of Inde- 
 pendence a general tendency throughout the Union to either abolish estates 
 tail or to restrict the time during which they should be allowed to exist. 
 
 Virginia, in 1776, passed its act abolishing entails, which is characterized 
 by the Court in Omdoff v. Twrman, 2 Leigh 200, as " a great general com- 
 mon recovery.'' By it fees tail were converted into fees simple, and, as a con- 
 sequence, words which at common law in a deed or devise would have given 
 an estate tail, are held to give an estate in fee, it having been decided that the 
 statute did not effect any change in the meaning to be given to the words 
 used, but merely converted the estate when an intent to give a fee-tail was 
 discovered, Tate v. Tally, 3 Call 354 See Code, Virginia, 1860, 559. 
 
 The law is the same in West Virginia, Code 1868, 460. 
 
 In Alabama, estates tail are converted into fees simple in the hands of 
 the donee or devisee in tail, Eev. St. 1867, § 1570 ; 1876, § 2179. 
 
 In Kentucky, estates tail are converted into fees simple. Gen. St. 1873, 
 p. 585 ; and it is decided that since the statute, an estate tail convertible into 
 a fee will not be raised by implication from the words " dying without 
 issue," followed by a devise over, whether the first devise be for life or in 
 tail; and that the failure of issue intended will be held to be a definite one, 
 Deboe v. Lowen, 8 B. Mon. 616 ; Sale v. Orutehfield, 8 Bush. 636 ; Daniel 
 v. Thomson, 14 B. Mon. 696. 
 
 In Connecticut, an estate given in tail becomes an estate in fee-simple in 
 the issue of the first taker, Act 1784, Gen. Laws, Ch. VI., § 3. 
 
 In Florida, estates tail are prohibited, Thompson's Dig., Tit. 2, ch. 1, 
 
 § 4, pi. 3. 
 
 In Georgia, estates tail are abolished ; a gift or devise in tail becomes a 
 fee-simple, and a limitation which, by the rules of construction would create 
 
112 Allin v. Bunce, — Hall v. Vandegkift. 
 
 an estate tail, is interpreted to give an estate for life to the first taker with 
 a remainder in fee to his children generally, not to the heir at common 
 law, Acts 1799, 1821; Code 1873, p. 391. 
 
 In California, estates tail are abolished and a limitation in tail is declared 
 to vest an estate in fee-simple absolute, unless there be a valid devise over ; 
 if there is a limitation over it is declared valid, although after a fee, and 
 will vest on a definite failure of issue. Civil Code, 1872, §§ 763, 764. 
 
 In Indiana, estates tail are abolished, and if there be no valid remainder 
 over, the fee vests in the donee or devisee, 1 Stats. 266; Kev. of 1876, 
 Vol. I., p. 368. 
 
 In Iowa, all limitations which suspend the absolute power of alienation 
 for any time longer than lives in being and twenty-one years after are 
 void. Stats. 1873, § 355. 
 
 In New York, the statutes of 1782 and 1786 abolished entails and con- 
 verted estates tail into fee-simple. The act of 1786 applied to estates tail 
 in remainder as well as to those in possession. Van Rensselaer v. Poueher, 
 5 Denio 35 ; Vanderheyden v. Orandall, 2 Id. 9 ; Wendell v. Orandall, 1 N. 
 Y. 491 ; Van Rensselaer v. Kearney, 11 How. 297 ; Jackson v. Van Zandt, 
 12 Johns. 169 ; and struck down remainders limited on a failure of the 
 issue in tail. Grout v. Townsend, 2 Den. 336. The law at present in New 
 York converts an estate tail, if followed by no valid remainder, a fee sim- 
 ple, 1 Stat, at Large, 670. 
 
 In Pennsylvania, by the act of April 27, 1855, § 1, P. L. 368, Purdon's 
 Dig., Vol. I., p. 620, pi. 8, it was enacted that when " by any gift, convey- 
 ance, or devise an estate tail would be created according to the existing 
 laws of the State, it shall be taken and construed to be an estate in fee- 
 simple, and as such shall be inheritable and freely alienable." 
 
 This act applies only to estates tail created after its passage, Reinhart v. 
 Lantz, 37 Pa. St. 491. It does not bring existing estates tail within the 
 intestate act so that they will descend to the issue generally, and they, con- 
 sequently, descend as, at common law, Guthrie's Appeal, 37 Pa. St. 10; 
 Reinhart v. Lantz, supra. Its general efiect, as stated by Strong, J., in 
 Nicholson v. Bettle, 57 Pa. St. 884, is as follows : " The Act of 1855 prac- 
 tically makes the statute de donis inoperative. It remits us to the common 
 law as it was before 13 Ed. I., and while it converts those which would 
 have been estates tail, had it not been passed into estates in fee-simple, it 
 has no effect upon executory devises." In other words, the act turns estates 
 tail into fees conditional at common law. 
 
 In New Jersey, by the statutes of 1784 and 1786, it was provided that 
 an estate tail after one descent should become an estate in fee-simple, and 
 in 1799 the statute de donis was repealed. This repeal was held neither to 
 
Allin v. Bunce. — Hall t>. Vandegeift. 113 
 
 abolish existing estates tail nor to convert them into fees conditional at 
 common la\Y. In 1820 a further statute was passed, and the law of New 
 Jersey at present is that a gift or devise in tail will give to the first taker 
 an estate for life, and vest a remainder in fee in the heir, Deii ex d. SpacMus 
 V. SpachiuSj 1 Harrison 172. See also X>e?i ex d. James v. Dubois, Id. 285. 
 
 In Arkansas, an estate tail becomes a life estate in the first taker, with a 
 remainder in fee-simple to the heir at common law. Rev. St. 1838, c. 31, § 5. 
 The same law prevails in Illinois Rev. St. 1874, p. 273 ; 1880, p. 266, § 6 ; 
 Vermont Gen. Laws, 1862, p. 446 ; and Colorado, Gen. Laws, 1877, c. xviii., 
 § 165, p. 134. 
 
 V In Maryland, by act of 1786, ch. 45, it is declared that if any person 
 seized of an estate in fee tail general created and acquired after the com- 
 mencement of the act should die intestate, the lands should descend in fee- 
 simple. The true construction of this act has been declared to be that the 
 course or manner of transmittiug the estate taU is changed only by making 
 the land descend to all the children of the tenant in tail, Smith v. Smith, 
 2 H. & J. 314 ; Eoe, Lessee of Posey v. Budd, 21 Md. 477, and that it does 
 not let in the collateral heirs, Smith v. Smith, supra. The opinion that the 
 latter class of heirs were enabled by the act to take, expressed in Newton 
 V. Griffith, 1 H. & G. Ill, would seem, therefore, to have been overruled. 
 See ReV. St., Art. 47, § 1, Art. 44, § 7. 
 
 In Michigan, estates tail are abolished, and all estates of inheritance are 
 declared to be fee-simple, either conditional or absolute. If there is no 
 estate limited after, an estate of inheritance will be held a fee absolute, 
 2 Comp. L., 1871, c. cxlvii., § 3, p. 1325. The law is the same in Wis- 
 consin, R. S. 1878, c. 95, § 2027, and Minnesota Rev. St. (Bissell) 613, § 3. 
 
 In Mississippi, estates tail are converted into fees simple, and it is pro- 
 vided that lands may be limited to two living donees in succession and to 
 the heirs of the body of the remainder-man, and in default of heirs to the 
 heirs of the donor in fee-simple, Stats. 1871, § 2286. 
 
 In Missouri, a devisee or donee in tail takes an estate for life with a re- 
 mainder to his children as tenants in common, Stats. 1866, p. 442. 
 
 In New Hampshire, two statutes of 1789 impliedly repealed the statute 
 de donis, the one (Sts. 1789, p. 76), by providing for the descent of entailed 
 lands to all, the children of the tenant equally, in case of intestacy the 
 other (p. 77), by allowing all lands to be devised. In view of the statute 
 it has been decided that the restrictive words, " heirs of the body," in a 
 deed or devise have simply no effect, and make neither an estate condi- 
 tional at common law nor an estate tail, Jewell v. Warner, 35 N. H. 176. 
 Before this decision the general opinion in New Hampshire seemed to be 
 that estates tail had not been abolished. See Frost v. Cloutman, 7 N. H. 9 ; 
 
 10* > H 
 
114 Allin v. Buncb. — Hall «, Vandegeift. 
 
 Hall V. Chaffee, 14 N. H. 215 ; BeU v. Scammon, 15 Id. 39 ; Dunning v. 
 Wherren, 19 Id. 9 ; Ladd v. Harvey, 1 Fost. 526. 
 
 In Ohio, an estate tail becomes a fee-simple in the issue of the donee in 
 tail, 1 K. S. (S. & C.) 550. 
 
 In North Carolina, every person seized of an estate in tail is deemed 
 seized in fee, and all sales made by a tenant in tail m possession since 
 January 1st, 1777, where the conveyance has been in fee-simple, are con- 
 firmed. Battles Eev. (1873) p. 383. 
 
 In Rhode Island, the statute provides that no person seized in fee-simple 
 shall have a right to devise an estate in fee tail for a longer period than to 
 the children of the first devisee. Gen. Stat., c. 171, § 2, p. 313. The efiect of 
 this statute has been decided to continue the entailment through the life of 
 the first devisee in tail, and then to enlarge the estate to a fee-simple in the 
 children of said devisee, Wilcox v. Heywood, 12 R. I. 196, overrules the 
 opinion in Lippitt v. Huston, 8 R. I. 415, 424. See also Sutton v. Miles, 
 10 R. I. 348. 
 
 Legislative Right to Change Course of Descent. 
 
 The right of the legislature to alter and direct by act the future descent 
 of estates tail in existence at the time of the passage of the act has been 
 considered by the courts. It would seem that there could be no question as 
 to the right but for the clause in the Constitution of the United States pro- 
 tecting the obligation of contracts, and therefore, as has been held, there 
 can be no question as to the validity of the acts passed before the adoption 
 of the federal constitution. Hen ex d. James v. Dubois, 1 Harrison 285, and 
 the right of the legislature, after the adoption of the constitution, is thus 
 asserted and supported by Ingeesoll, J., in De Mill v. Loekwood, 3 Blatch. 
 56, in which case a special act barring an entail was under consideration. 
 " The legislature would have had a right to declare every fee tail to be a 
 fee-simple in the tenant in taU, and after such general law, an estate in fee 
 tail would in the tenant in tail be converted into a fee-simple. The legis- 
 lature by so doing would not take any right of property from any one and 
 vest it in another. They would not take any strict legal right from any 
 one, for the issue have no right in the entailed estate which can be con- 
 veyed, but only a possibility or expectancy, or capacity of inheriting. He 
 has no right to convey ; and by the common law, such issue may in various 
 ways, without any act done by him, or any act left undone by him, be 
 deprived of that possibility or expectancy, the legislature have a right at 
 all times, by a general law, to change the course of the inheritance, and 
 deprive such issue of the capability of inheriting. ... If this could be 
 done by a general law, it could be done by a particular, special law." 
 
Estates on Condition. 
 
 GEAY V. BLANCHARD. 
 
 Supreme Judicial Court of Massachusetts, March Term, 1829. 
 
 [Reported in 8 Pickering 284.] 
 
 The demandant, being owner of a parcel of land with a dwelling-housQ 
 thereon, adjoining on the north to land with a dwelling-house thereon 
 belonging to his sister, facing to the south, conveys to the tenant's 
 grantor in fee simple, " provided, however, this conveyance is upon the 
 condition, that no windows shall be placed in the north wall of the 
 house aforesaid, or of any house to be erected on the premises, within 
 thirty years from the date hereof." After the sister has conveyed her 
 land to a stranger, the tenant mortgages by a deed reciting the fore- 
 going provision, and afterward, while remaining in possession, makes 
 windows in the north wall. Held, that the above clause was a condition, 
 and not a covenant ; that it was a valid condition ; and that such breach 
 of it worked a forfeiture of the estate, and gave the demandant a right 
 to re-enter. 
 
 Writ of entry sur disseizin to recover possession of a parcel of land 
 and a dwelling-house thereon, situate in Atkinson street, in Boston. 
 Trial before Wilde, J. 
 
 In 1801, the demandant owned a tract of land bounding easterly 
 eighty feet on Atkinson street, and erected on the northern portion of 
 it a dwelling-house facing to the south with the eastern end fronting on 
 the street. 
 
 In 1802, he conveyed to Willett and Bullard a part of the tract, 
 bounded northerly by the parcel upon which he had erected the house, 
 and measuring fifty feet on the street. 
 
 In March 1803, he conveyed to his sister, Mrs. Haile Rand, the 
 northerly part of the tract, describing it as bounded southerly by land 
 of Willett and Bullard, and easterly on the street, there measuring 
 thirty feet. 
 
 Willett and Bullard, having erected a dwelling-house, under the direc- 
 tions of the demandant, on the northern part of the land sold to them, 
 reconveyed such part to the demandant, describing it as bounded east 
 on the street, twenty-eight feet, west on land of Dorr, twenty-eight feet, 
 and north on land of the demandant. 
 
 115 
 
116 Gray v. Blanchaed. 
 
 On the 28th of August 1804, the demandant conveyed the tract now 
 in question to William Blanchard, describing it as bounded east on the 
 street, twenty-seven feet, south on land of Dillaway, west on land of 
 Dorr, twenty-seven feet, and north on other land of the demandant, 
 being part of the land purchased of Willett and Bullard ; habendum 
 in fee-simple ; " provided, however, this conveyance is upon the con- 
 dition, that no windows shall be placed in the north wall of the house 
 aforesaid, or of any house to be erected on the premises, within thirty 
 years from the date hereof, and also upon the condition, that no building 
 shall be erected upon the strip of land at the east end of said house for 
 the space of thirty years from the date hereof, but during said term said 
 strip of land, measuring twenty-seven feet on Atkinson street, and three 
 feet three inches in depth from said street, shall remain without any 
 incumbrances except the fences as they now stand." 
 
 On the 24th of October 1821, William Blanchard conveyed the same 
 land to the tenant, " subject to the terms and conditions mentioned and 
 contained in the original deed from said Benjamin Gray to said William 
 Blanchard, reference being thereto had." 
 
 On November 1, 1821, the tenant mortgaged the land to Jonathan 
 Amory, by a, deed in which the conditions above quoted are recited at 
 length. 
 
 It was proved, that the house on the land in question, is a brick house 
 of about forty feet in length and eighteen in width, the north wall being 
 towards the house conveyed to Mrs. Rand, and that at the time of the 
 conveyance to William Blanchard, the north wall was without any 
 aperture except one doorway ; and that in 1822 the tenant caused two 
 windows to be made in this wall, which have ever since remained there. 
 
 The demandant proved an entry upon the demanded premises for 
 breach of condition. 
 
 The tenant gave in evidence a deed of Mrs. Rand, dated in 1813, 
 whereby she conveyed her land to George Blanchard, describing it as 
 bounded southerly on land of William Blanchard. But the demand- 
 ant claims to be the owner of a strip of land one foot wide, lying 
 between the demanded premises and the land conveyed by him to Mrs. 
 Rand. 
 
 It was admitted that the demandant, at the time when he gave the 
 deed to William Blanchard, had no interest in the house and land con- 
 veyed to Mi-s. Rand, and has never since had any, and that none of his 
 
Gbay v. Blanchard. . 117 
 
 family have had any interest therein since his sister made the conveyance 
 to Greorge Blanchard. 
 
 The jury were instructed to find a verdict for the demandant ; which 
 was to be subject to the opinion of the Court. 
 
 Prescott and Oorham for the tenant. The provision in the deed from 
 the demandant to William Blanchard, considered as a condition, is void. 
 1. It is against the policy of the law, being idle and useless to the 
 grantor and embarrassing to the grantee. In the case of a lease, the 
 grantor owns the estate and may prescribe the mode of managing it ; 
 and if there is a forfeiture, the lessee ceases to pay rent ; but here there 
 is a barren condition annexed to a fee-simple, in land in which the 
 grantor has parted with his whole estate. 2. The condition is repugnant 
 to the grant. It is a restraint on the fair and profitable use of the land, 
 when no estate remains in the grantor. The condition is not annexed 
 to a collateral thing, but to the estate itself which is the subject of the 
 grant. Co. Lit. 223 ; Ibid. 206 b ; Newherh v. Newkerk, 2 Caines's E. 
 345 ; Soovell v. Cabell, Cro. Eliz. 107 ; Stukely v. Butler, Hob. 170 ; 
 Moore and Savil's case, 2 Leon. 132 ; Jervis v. Bruton, 2 Vern. 251 ; 
 2 Bl. Com. 381 ; Mildmay's case, 6 Co. 41 ; 5 Yin. 105, Condition, A, a. 
 
 But suppose the demandant had been, at the time of the grant and 
 ever since, the owner of the adjoining estate and wished to benefit it, 
 the Court will consider the provision in question as the grant of an ease- 
 ment by the grantee or a covenant, and not as a condition. On the 
 breaclj of a condition, the grantor only and his heirs can enter ; and if 
 he has assigned the adjoining land and then enters, he holds the estate 
 discharged of the condition and the owner of the adjoining land derives 
 no benefit from the condition. Lit. § 347 ; Co. Lit. 214 a, 214 b, 215 
 b ; Com. Dig. Condition, A 6 ; Bac. Abr. Covenant, A; 2 Cruise's Dig. 
 6. Covenant will He on a deed poll accepted by the grantee. Ewer v. 
 Strickland, Cro. Jac. 240 ; Brett v. Cumberland, Ibid. 399, 521 ; Knipe 
 y. Palmer, 2 Wils. 130; Co. Lit. 231. The clause may be bad as a 
 condition, but good as a contract. Freeman v. Freeman, 2 Vern. 233 ; 
 Shep. Touch. 368. Holms v. Seller, 3 Lev. 305. The only way of efiect^ 
 ing the intent of the parties, is to construe it as a reservation or covenant, 
 running with the land conveyed to Mrs. Rand. The party who took 
 the deed could not have understood that the estate was to be defeated 
 by the non-performance of the supposed condition, there being no 
 
118 Geay v. Blanchaed. 
 
 words of re-entry, nor any words signifying that the deed would become 
 void. 
 
 Putting in the windows was a trespass by a tenant at will, and ought 
 not to work a forfeiture as against the mortgagee, who has the fee-simple. 
 
 8. Hvhbard and C Q. Loring, contra, to the point, that the words 
 used constitute a condition, cited Shep. Touch. 121, 122 ; Bac. Abr. 
 Condition A, O; Viu. Condition H, and notes; Lit. § 328, 330, 331 ; 
 JaSlcson V. AUen, 3 Cowen 221. That the condition was not repugnant 
 to the grant, Shep. Touch. 129, 131 ; Largos cose, 2 Leon. 82, and 3 
 Leon. 182 ; Dyer, 318, pi. 12 ; Bac. Abr. Condition, L; Vin. Condition, 
 Z, pi. 4 and pi. 32 ; Com. Dig. Omdition, D 6 ; Doe v. Pearson, 6 East 
 173. That a court of equity will not relieve when the forfeiture is vol- 
 untary, Rolfe V. Harris, 2 Price 210, note. That if the condition had 
 been idle and useless, yet being express and upon a valuable considera- 
 tion (the price of the land being of course less in consequence of the 
 condition), it must be enforced, Jaehson v. Browndl, 1 Johns. E. 267 ; 
 Skinner v. White, 17 Johns. E,. 357; Wheeler v. Wallcer, 2 Connect. R. 
 196 ; King v. Withers, Finch's Prec. 348. That the lapse of time since 
 the breach of the condition was not a waiver, Jackson v. Cryshr, 1 
 Johns. Cas. 125 ; Doe v. AUen, 3 Taunt. 78 ; Braddick v. Thompson, 
 8 East 344 ; Boe v. Harrison, 2 T. R. 425. That covenant would not 
 lie, Goodwin v. Oilhert, 9 Mass. E.. 610. 
 
 The opinion of the Court was delivered at this term, by 
 
 Paekee, C J. — The tenant moves to have the verdict set aside, on 
 several grounds. 
 
 Eirst, because the words in the deed do not import a condition, the 
 breach of which will work a forfeiture of the estate, but only a cove- 
 nant, entitling the demandant to his action for damages. But this is 
 imtenable. The words are apt to create a condition ; there is no ambi- 
 guity, no room for construction ; and they cannot be distorted so as to 
 convey a different sense from that which was palpably the intent of the 
 parties. The word "provided " alone, may constitute a condition, but 
 here the very term is used which is often implied from the use of other 
 terms. " This conveyan/ie is upon the condition," can mean nothing 
 more nor less, than their natural import ; and we cannot help the folly 
 of parties who consent to take estates upon onerous conditions, by con- 
 
Gray v. Blanchard. 119 
 
 verting conditions into covenants. It would be quite as well to say that 
 the words mean nothing, and so ought to be rejected altogether. No 
 authority has been cited which bears out this suggestion ; indeed, the 
 authorities are all against it. 
 
 It is then said, that this condition is void, being idle and useless, and 
 so against the policy of the law. But who shall judge over the head 
 of the grantor, that this condition is idle and useless ? At the time of 
 his conveyance to William Blanchard, his sister owned, by conveyance 
 from him, the next adjoining lot to the northward, with the front of 
 her dwelling-house towards this north wall. He probably intended to 
 protect this estate from being overlooked from windows in that wall, the 
 house in question having been built with this dead wall under his direc- 
 tion. This may have been important to the enjoyment and the value 
 of his sister's estate ; and there seems to be no good reason why, in dis- 
 posing of the demanded premises, he should not provide for her accom- 
 modation. Those who hold under her may have considered this restric- 
 tion on the estate as an inducement to purchase. The grantee was not 
 surprised into the bargain, nor those who hold under him, the condition 
 being inserted in all the deeds ; and if the estate was of less value on 
 account of this restriction, they were compensated in the price ; at any 
 rate, it was a voluntary bargain, and if they did not choose to take the 
 estate cum onere, they should have rejected it altogether. Every pro- 
 prietor of an estate has jus disponendi. He may grant it with or with- 
 out condition ; and if he grants it upon condition directly, the estate 
 of the grantee will terminate with the breach of the condition, if the 
 grantor chooses to avail himself of the forfeiture and enter for the 
 breach. 
 
 It is next argued that this condition is void, as being repugnant to 
 the grant, restraining the beneficial use of the estate. Without doubt, 
 conditions of the nature supposed are void, anfl the estate is absolute ; 
 but the law very clearly defines this rule, and the cases cited to support 
 this position show the limitation and the exceptions to the rule. 
 
 A lease for two years, provided the lessee occupy but one ; this is 
 repugnant and senseless, and the proviso shall be rejected. Soovell v. 
 (hbell, Cro. Eliz. 107. 
 
 Grant of a house upon condition not to meddle with the shops, the 
 shops being part of the house ; this is of the same nature. Hob. 170. 
 
 So a grant of land or rents in fee-simple, upon condition that the 
 
120 Gray v. Blanchaed. 
 
 grantee shall not alien, or that his widow shall not have dower ; these 
 conditions are void, as clearly repugnant to the grant; Shep. Touch. 
 129, 131 ; for it is of the essence of a fee-simple estate, that it shall be 
 alienable and subject to dower. 
 
 But if the condition be that the grantee shall not alien to particular 
 persons, or within a reasonable limited period, these conditions shall 
 stand, not being inconsistent with the nature of the estate granted. Co. 
 Lit. 223. 
 
 If one make a feoffinent in fee on condition that the feoffee shall 
 retain the land for twenty years without interruption, it seems this is a 
 good condition and not repugnant. Shep. Touch. 131. A feoffinent in 
 fee with a condition that the feoffee shall not enjoy the land or take the 
 profits, or that his heirs shall not inherit it, oi'that the feoffee shall do 
 no waste, or that his wife shall not be endowed ; these are all repugnant 
 and void. Shep. Touch. 131. And the same law is of a grant by deed 
 of bargain and sale, for by our law this is an entire substitute for a 
 feoffment. 
 
 But partial and temporary restrictions as to the use, may be consistent 
 with the estate granted, and so may stand. 
 
 A condition in a deed of a house, that there should be no windows 
 in it, or no passage in and out, or that the grantee should never occupy 
 or sell it, would come within the rule and be void ; but that there should 
 be no door or window on one side or end, that it should not be sold for 
 several years, or to a particular person, would fall within the exception 
 to the rule, and form a valid condition. 
 
 Again, it is said that the demandant not owning any land adjoining, 
 he has no interest in the condition, and so cannot avail himself of the 
 forfeiture. But it is not necessary, in order to make a condition valid, 
 that the party creating it should have any beneficial interest in any other 
 estate which may be uSefully affected by the condition. He may have 
 conveyed an adjoining estate for the benefit of which this condition was 
 created. He may have received a greater price for that estate on account 
 of this condition, and justice to others may require that he should exact 
 its performance. 
 
 It is said to be a general rule, that when a man hath a thing, he may 
 condition with it as he will. This, however, is subject to the foregoing 
 rule. Shep. Touch. 118. And the condition cannot be reserved to a 
 stranger, but by and to him who doth make the estate. Neither can it 
 
Gray v. Blanchaed. 121 
 
 be granted over to another, except to and with the land or thing unto 
 which it is annexed and incident. Shep. Touch., 120. 
 
 It seems to us that there ai-e many things which may be provided for 
 as conditions in a deed, which, though of small consideration in the view 
 of a stranger, may be thought of great importance by the grantor. A ^■ 
 man has a vacant lot in front of his dwelling-house, which somebody is 
 desirous to buy, and he is willing to sell, if thereby his light and air 
 shall not be too much obstructed. May he not sell it under a condition, 
 that no building shall be erected beyond a certain height, or within a 
 certain distance from his house, or that the land shall not be used for 
 the purposes of a tavern, or for any particular business which is likely 
 to be noisy or troublesome, at least for a limited number of years ? Who 
 is prejudiced by such a condition ? The purchaser and all who may 
 claim xmder him have notice of the restriction, and if it diminishes the 
 value of the land, they get their compensation in the price. 
 
 The common law does not so interfere with the right of disposing of 
 estates ; as appears from the authorities cited. Neither is there anything 
 unreasonable in the particular condition of this deed. The tenant's house 
 is built with its easterly end on the street, its front to the south. Such 
 houses are usually provided with light from the front and the ends. 
 This very house had stood many years without windows in the back 
 wall. Certainly if it is a hard thing for the demandant to exact the 
 forfeiture, it was a foolish thing in the tenant to give him the oppor- 
 tunity. 
 
 Then it is thought that the various conveyances under the original 
 grantee of the demandant, William Blanchard, and the tenant, who has 
 charged the land with a mortgage, may have destroyed this condition, 
 or defeated the right of the demandant to enter for the breach of it. 
 But the law is otherwise. 
 
 " The estates of both parties are so suspended by the condition, that 
 neither of them alone can well make any estate or charge of or upon 
 the land ; " that is, free from the burthen of the condition. For he that ^ 
 parteth " with the estate and hath nothing but a possibility to have the 
 thing again upon the performance or breach of the condition, cannot . 
 grant or charge the thing at all. And if he that hath the estate, grant 
 or charge it, it will be subject to the condition still ; for the condition 
 doth always attend and wait upon the estate or thing whereunto it is 
 annexed." " And when the condition is broken or performed, etc., the 
 11 
 
122 Gbay v. Blanchard. 
 
 whole estate shall be defeated and the whole estate of the whole, and not 
 of some part only shall be avoided, except by agreement the condition 
 is limited to part." Shep. Touch. 120, 121. 
 
 The last point made in the argument for the tenant is, that there being 
 no clause of re-entry for breach of condition in the deed, the provision 
 is not strictly a condition going to the forfeiture of the estate, but may 
 for this reason be construed into a covenant. But here again the law 
 seems to be clear the other way. 
 
 A clause of re-entry is not necessary to make a condition. Proviso, 
 ita quod, sub conditione, make the estate conditional. Com. Dig. Con- 
 dition, A 2. Other words, such as d, si contingat, do not make a con- 
 dition, which will work a forfeiture, without clause of re-entry. Lit. 
 § 331 ; Shep. Touch. 121. 
 
 It has been suggested also, that as the proprietor of the estate next 
 north of the wall, must have known of the placing windows there, and 
 did not prohibit or complain of the act, his silence should be construed 
 a waiver of the condition, so as to defeat the demandant's right to re- 
 enter. But there are two objections to this ; first, that the then owner 
 of the adjoining estate had no legal interest in that condition, and there- 
 fore could not waive it. His silence might result from a reliance that 
 the demandant, under whom derivatively he held, would vindicate his 
 own rights. Secondly, a mere indulgence is never to be construed into 
 a waiver of a breach of condition ; and so are the authorities. If the 
 windows had been made before the conveyance in mortgage by the 
 tenant to Amory, the demandant knowing that the condition had been 
 broken and having omitted to enter for breach, there would be a strong 
 case in equity for an injunction from a court with competent jurisdiction 
 on the subject ; but the mortgage was made before the breach of con- 
 dition. It has been strongly urged, that after the mortgage, Charles 
 Blanchard was only tenant at the will of the mortgagee, and that his 
 act, unauthorized by the mortgagee, could not work a forfeiture. But 
 he was, to everybody but the mortgagee, tenant in fee ; and remaining 
 in possession with the consent of the mortgagee, his acts have the same 
 effect as if he had not conveyed in mortgage. The mortgagee's estate 
 was subject to the same condition, not only by virtue of the original 
 deed from the demandant, but the condition was expressed also in his 
 deed from the tenant ; so that he should have dispossessed the tenant, 
 if he would have avoided the effect of his acts. 
 
Gray v. Blanchaed. 123 
 
 We therefore see no ground on which, consistently with the rules of 
 law, we can deny the demandant's claim. It is a harsh proceeding on 
 his part, but it is according to his contract, which must be enforced, if 
 he insists upon it. 
 
 Judgment according to verdict. 
 
 " A condition annexed to the realty, whereof Littleton here speaketh," 
 says Coke, " in the legal understanding est modus, a quality annexed by 
 him that hath estate, interest, or right to the same, whereby an estate, etc., 
 may either be defeated, enlarged, or created upon an uncertain event. Con- 
 ditio didtur cum quid casum iucertum qui potest tendere ad esse aut non esse 
 eonfertur," Co. Lit. 201 a. 
 
 Kinds of Conditions. 
 
 Conditions are primarily of two kinds, (1) conditions in laW, or those con- 
 ditions which are inseparably annexed to an estate by the law itself, with- 
 out aid from any act or declaration of either grantor or grantee, and arise 
 out of the very essence and constitution of the estate itself, and (2) condi- 
 tions in deed ; it is of the latter class that Coke above speaks and with 
 which we are at present concerned, since the conditions of the other class 
 can be more conveniently discussed in treating of the incidents of the 
 estates to which they are respectively attached. 
 
 An estate on condition in deed is thus defined in Wheeler v. Walker, 2 
 Conn. 196, " An estate on condition expressed in the grant or devise itself 
 is where the estate granted has a qualification annexed whereby the estate 
 shall commence, be enlarged, or defeated upon performance or breach of 
 such qualification or condition.'' See also Labevee v. Carleton, 53 Me. 211. 
 
 Creation of Condition, 
 
 There are certain technical words proper in themselves to make a con- 
 dition, these are suh conditione, proviso, itaquod, Co. Lit. 203 b, and quod 
 si contingat if followed by a clause of reentry. Id. 204 b, Stanley v. Colt, 5 
 Wall. 119; Wheeler v. Walker, supra; Hooper v. Oummings, 45 Me. 359; 
 Paschall v. Passmore, 15 Pa. St. 295 ; Rawson v. Inhabitants of School District 
 No. 5, 7 Allen 125 ; Warner v. Bennett, 31 Conn. 468 ; Gray v. Blanehard, 
 8 Pick. 284. 
 
 But these words are not necessary to create a condition ; it may be ere- 
 
124 Ghay v. Blanchard. 
 
 ated by any words which show a clear, unmistakable intention on the part 
 of a grantor or devisor to create an estate on condition, regard being had 
 to the whole of the deed or will in which they occur, Bacon v. Huntington, 
 14 Conn. 92 ; Hapgood v. Houghton, 22 Pick. 480 ; Lessee of Worman v. Tea- 
 garden, 2 Ohio St. 380 ; Waiters v. Bredin, 70 Pa. St. 235 ; Underhillw. Sara- 
 toga and Washington R. R. Co., 20B^b. 458; Hamilton y. Kneeland, 1 Nev. 
 40. A provision for reentry is a distinctive characteristic of an estate on 
 condition, and where in a deed the grantor has reserved the right of 
 reentry, upon the happening of any specified event, in order to revest in 
 himself his former estate, there the estate granted will be held to be one 
 upon condition. Attorney- General v. Merrimack Manufacturing Co., 14 Gray 
 612, and this has been held where the provision for reentry was appended 
 to words of covenant, Gibert v. Feteler, 38 N. Y. 165. 
 
 As the technical words above mentioned are not absolutely essential to 
 the existence of a condition, so their use does not necessarily create one, 
 but may be so controlled by the context of the instrument in which the 
 technical words occur as to fail of that effect. The rule as to them is thus 
 stated by Bell, J., in Pasohallv. Passmore, 15 Pa. St. 295, "these condi- 
 tional words sometimes serve to work a qualification or limitation and con- 
 dition, and sometimes a covenant only, according to the intention of the 
 parties and the manner in which they are used in a conveyance. In 
 Cromwell's case, 2 Co. 71 a, ... it was settled, that though the words pro- 
 viso and sub eonditione are apt to make a condition, yet to confer upon them 
 this effect three things are necessary ; first, that the clause wherein they 
 occur have no dependence on another in the deed, but stand originally by 
 and of itself; second, that it be the language of the feoffor, donor, lessor, 
 etc., or may be attributed indifferently to both ; and third and principally, 
 that it be compulsory to enforce the bargainee, feoffee, donee, etc., to do an 
 act the omission of which may work a forfeiture." See also Episcopal City 
 Mission v. Appleton, 111 Mass. 326 ; Sohier v. Trinity Church, 109 Id. 1 ; 
 Chapin v. Harris, 8 Allen 594 ; Stanley v. Colt, supra. And whatever 
 words are relied on as creating a condition must not only be such as of 
 themselves would create a condition, but must be so connected with the 
 grant as to qualify or restrain it. Laberee v. Carlton, supra. , 
 
 A condition may be created by a reference in an instrument to a condi- 
 tion contained in another paper, as by a reference in a deed to an agreement 
 to convey on condition, with a recital that the deed is made in pursuance 
 thereof, Bear v. Whisler, 7 Watts 144 ; Merritt v. Harris, 102 Mass. 326, or 
 by a reference in a codicil to the provisions of a will, Tilden v. Tilden, 13 
 Gray 103 ; and in a case, where on the back of a deed there was a recital 
 that the estate was conveyed upon a certain condition, which recital was 
 
Gray v. Blanchaed. 125 
 
 signed by the grantee, it was held that a condition was well created in favor 
 of the grantor, Barker v. Cobb, 36 N. H. 344 ; but a mere recital in the 
 deed that it has been made upon a certain consideration will not raise a 
 condition, as where a deed set forth that the estate conveyed thereby was 
 given to commissioners of a county in consideration of a county seat having 
 been located on the premises, it was held that there was no condition that 
 the county seat should be kept there, Harris v. Shaw, 13 111. 456 ; and see 
 Perry v. Scott, 51 Pa. St. 119, where the deed recited that it was made in con- 
 sideration of natural love and affection, and that the grantee, the grantor's 
 son, had promised to remain with the grantor and to support his widow 
 after the grantor's death, the consideration recited was held not to consti- 
 tute a condition which could be enforced by an ejectment ; and this is the 
 case even where an estate on condition is transferred by the grantee thereof 
 to another in consideration that the condition be performed by the second 
 grantee, in this case there will be no condition vested in the first grantee, 
 but the liability to him on the part of the second grantee wiU be personal 
 only. Norris v. Laberee, 58 Me. 260. 
 
 A condition will not be raised by implication from a declaration in the 
 deed or devise, that the grant is made for a special and particular purpose 
 without being coupled with words appropriate to make a condition, Packard 
 V. Ames, 16 Gray 327 ; Bigelow v. Barr, 4 Ohio 358, or from the state of 
 affairs existing at the time of the grant. An example of this latter position 
 is found in Southard v. Central R. R. of New Jersey, 2 Dutch. 13. At the 
 time of the grant in that case, the grantee, a railroad company, was not 
 permitted by its charter to extend its road beyond Somerville, where the 
 land granted was located, and the grant was undoubtedly made in view 
 of the benefit which would accrue to the grantor, an owner of land in 
 Somerville, from the town being made a railway terminus ; yet it was 
 held that there was no implied condition either that the grantee should 
 not obtain an enlargement of its franchise and extend its road beyond 
 Somerville, or allow its privileges to become vested in another corpora- 
 tion whose charter permitted such extension. 
 
 A condition will not be readily raised or enlarged by construction. In 
 Jennings v. O'Brien, 47 Iowa 392, a father made a conveyance to his son 
 for the consideration of one dollar, on condition that the son should not 
 alien the land during the lifetime of the father ; it was held that there was 
 no condition to support the father during life. See also Supervisors of War- 
 ren County V. Patterson, 56 111. Ill ; Gadberry v. Sheppard, 27 Miss. 203. 
 
 As the policy of law is to render the alienation and transfer of property 
 as free as possible, conditions are not favored in law ; and, therefore, when- 
 ever words can be construed indifferently as a condition, reservation, or a 
 11* 
 
126 Geay v. Blanchaed. 
 
 covenant, the tendency of the courts is to construe them as either of the 
 latter rather than as the former. Ohapin v. School District No. 2, 35 N. H. 
 445 ; Hoyt v. Kimball, 49 Id. 326 ; Wheeler v. Dascomb, 3 Cush. 285; Thorn- 
 ton V. Trammell, 39 Ga. 202 ; PaschaM v. Fa^smore, 15 Pa. St. 295 ; Kreutz 
 V. McKnight; 51 Id. 232. 
 
 A condition cannot be engrafted upon a conveyance, by parole, Marshall 
 County Sigh School v. Iowa Evangelical Synod, 28 Iowa 360; Thompson v, 
 Thompson, 9 Id. 323; Sogers v. Sebastian County, 21 Ark. 440; Moser v. 
 Miller, 7 Watts 156 ; Chapman v. Gordon, 29 Ga. 250 ; Dunbar v. Stickler, 
 45 Iowa 384. 
 
 Condition Precedent or Subsequent. 
 
 Conditions may be either subsequent or precedent ; and it is sometimes a 
 little difficult to determine under which head a given condition falls, since 
 no technical words exist which will determine absolutely the character of 
 the condition. "It is not now the employment of any particular word 
 which determines a condition to be precedent or subsequent, but the mani- 
 fest intention of the parties. One of the rules upon which the construction 
 depends is, that when the niutual covenants go to the whole of the consider- 
 ation on both sides, they are mutual conditions, the one precedent to the 
 other, as where in the conveyance of property the whole of the consideration 
 money is either to be paid or secured on the delivery of the deed, which is 
 a plain case of stipulation for a contemporaneous performance, a perform- 
 ance uno flatu, and where neither party intends to trust the other." Car- 
 penter, J., in Shinn v. Roberts, Spen. (N. J.) 435. See also Jones v. Cliesa- 
 peake & Ohio It. B. Co., 14 W. Va. 514. It may be laid down as a rule 
 that where the act of condition necessarily precedes the vesting of the estate 
 — as, for instance, a gift to a person if he reach a certain age — ^the condition 
 will be held to be precedent ; but if the act can be performed as well after 
 as before the vesting of the estate, then the condition will be held subse- 
 quent, unless an intention of the grantor or devisor that it shall be precedent 
 is clearly manifested, Finlay v. King's Lessee, 3 Pet. 346 ; Martin v. JBallou, 
 13 Barb. 119 ; Underhill v. S. & W. R. R. Co., 20 Id. 458 ; Parker v. Nichols, 
 7 Pick. Ill; Burnett v. Strong, 26 Miss. 116; Bell County v. Alexander, 
 22 Tex. 350. A condition in a devise, that a devisee should marry a cer- 
 tain other person, has been held a condition subsequent, Finlay v. King's 
 Lessee, supra. So also where the condition in a devise was that the one who, 
 by its terms, should be entitled to the estate at the age of twenty-one, should 
 change his name, and that in case he did not do so within a reasonable 
 time, the land should follow the direction of a devise over, Taylor v. Mason, 
 
Geay v. Blanchakd. 127 
 
 9 Wheat. 325. So a condition that so soon as the devisee comes into pos- 
 session of the estate he shall take a certain name, Webster v. Cooper, 14 
 How. 488 ; or a condition that the grantee or devisee shall pay an annuity, 
 and in such case security will not be exacted for its payment, Beck v. Mont- 
 gomery, 7 How. (Miss.) 39 ; or that no claim be made against the estate of 
 the devisor, Sackett v. Mallory, 1 Mete. 355 ; or a condition avoiding a 
 conveyance in case it afterwards appears that the grantee was not, at 
 the time of the conveyance, seized of certain lands adjoining those con- 
 veyed to him, Towle v. Smith, 2 Robt. 489. A condition that the grantee 
 shall allow the grantor's wife to have the use, occupation, and improve- 
 ment of the land demised during her natural life is a condition subsequent, 
 Tallman v. Snow, 35 Me. 342. But in a devise to a widow for life, with 
 power to sell the land if the income of the property be not sufficient to 
 support her, insufficiency of support is a condition precedent to the vesting 
 of a fee, for the purpose of conveyance, in the widow and must be proved 
 in order to sustain the title of one claimiag title in fee under the widow in 
 an ejectment, Minot v. Preseott, 14 Mass. 495 ; and where a deed recited 
 that the grantor, being desirous of securing the completion of a certain dam 
 on or before a certain date, granted an estate to the party of the second 
 part upon a trust that if a certain hydraulic company should erect such a 
 dam by the said date, the grantee should deliver to the said company a 
 deed for the said estate, the building of the dam was held a condition 
 precedent to the vesting of the estate in the hydraulic company, Wilson v. 
 Gait, 18 111. 431, and in a devise to a person, if he shall live to become of 
 age, or when he shall become of lawfiil age, the attainment of twenty-one 
 years is a condition precedent. Cox v. Bird, 65 Ind. 277. 
 
 Of what a Condition may consist. 
 
 A condition may be made of almost anything that is not illegal or un- 
 reasonable, on the principle that the owner of land, who is not obliged to 
 transfer it at all, may attach to its transfer such conditions and restrictions 
 as he pleases, and in view of which the grantee takes the land, so long as 
 they are not in contravention of any policy of law. 
 
 A condition may be made of the payment of rent, Van Rensselaer v. Ball, 
 19 N. Y. 100 ; Van Rensselaer v. Slingerland, 26 Id. 580 ; Van Rensselaer 
 V. Dennison, 35 Id. 393 ; Hosford v. Ballard, 39 Id. (Tiffany) 147, or that 
 a certain proportion of the produce of the land granted shall be delivered 
 to the grantor. Frost v. Butler, 7 Greenl. 225. It is a good condition that 
 a railroad company shall keep open as a public street part of the land 
 conveyed to it, Tinkham v. Erie R. R., 53 Barb. 393. A condition that 
 
128 Gray v. Blakchaed. 
 
 the grantee pay the expenses of a certain lawsuit, Hihn v. Peek, 30 Cal. 
 280, or indemnify the grantor against a bond and mortgage, Michigan State 
 Bank v. Hastings, 1 Dougl. 225 ; Rowell v. Jewett, 69 Me. 293 ; Sanborn v. 
 Woodman, 5 Gush. 36, is good. 
 
 A very common condition in rural districts is that the grantee shall sup- 
 port the grantor duriug life, Spaulding v. Hallenheek, 39 Barb. 79 ; Sheaffer 
 V. Sheaffer, 37 Pa. St. 525 ; Hershman v. Hershman, 63 Ind. 451 ; Bollins v. 
 Riley, 44 N. H. 9 ; Rowell v. Jewett, 69 Me. 293, or support the grantor 
 or devisor's wife. Tanner v. Van Bibber, 2 Duv. 550, or child, or some 
 other person designated by him, Wilson v. Wilson, 38 Me. 18 ; Marwiek v. 
 Andrews, 25 Id. 525 ; and it seems that the condition for support partakes 
 of a personal character, and that the conveyance of the estate will not shift 
 the obligation to perform the condition from the original grantee. Barker 
 V. Cobb, 36 N. H. 344; Eastman v. Batchelder, Id. 141. 
 
 Among examples of other conditions which have been sustained by 
 the courts may be mentioned a condition that no sale of the property con- 
 veyed shall be made without first giving the grantor and his heirs an op- 
 portunity to purchase it, Jackson v. Schutz, 18 Johns. 174 ; that certain 
 buildiags shall be erected upon the premises, Hunt v. Beeson, 18 Ind. 380 ; 
 McKelway v. Seymour, 29 N. J. Law 321 ; Allen v. Howe, 105 Mass. 241 ; 
 Dolan V. Mayor and Council of Baltimore, 4 Gill 394 ; that the devisee 
 shall not contest the will containing the devise. Chew's Appeal, 45 Pa. St. 
 228 ; that a church erected, or to be erected, on the premises granted shall 
 remain a free church, Woodworih v. Payne, 74 N. Y. 196 ; that the devisee 
 shall keep a house in repair, Tilden v. Tilden, 13 Gray 103 ; that no build- 
 ings be erected on the premises within a certain distance of a street line, 
 Nowell V. Boston Academy of Notre Dame, 130 Mass. 209 ; that a certain 
 deed shall be confirmed, Spofford v. Manning, 6 Paige 383 ; that the grantee 
 shall return to a certain place. Reeves v. Craig, 1 Winst. 209 ; M' Carthy v. 
 Dawson, 1 Whart. 4 ; that land or its produce be applied to the support of 
 certain clergymen, Austin v. Cambridgeport Parish, 21 Pick. 215. 
 
 While, however, great liberty is allowed in the creation of conditions, 
 there are nevertheless some conditions and restrictions which the law pro- 
 hibits as being contrary to public policy or as being repugnant to the estate 
 granted. 
 
 First, it may be stated that a condition in general restraint of marriage 
 is bad as against public policy and is incapable of enforcement ; but to ren- 
 der a condition in restraint of marriage void, it must be in fact general, or 
 at least unreasonable, and a condition that a person shall not marry before 
 attaining a certain age, provided the age fixed be not an unreasonable one, 
 is a good condition, Shackelford v. Hall, 19 111. 212. As to what has gen- 
 
Gray v. Blanchahd. 129 
 
 erally been considered a reasonable restriction under such circumstances, it 
 was said in the case just cited by Caton, C. J., " An examination of the 
 subject will show that the courts have rarely held such a condition void, 
 although it might appear harsh, arbitrary, and unreasonable, so as it did 
 not absolutely prohibit the marriage of the party within the period wherein 
 issue of the marriage might be expected." It has been sometimes held that, 
 where the condition in restraint of marriage is followed by a devise over 
 on the occurrence of the breach, the condition will be sustained ; but this is 
 not the case where the devise over is to the heirs of the devisor, Randall 
 V. Marble, 69 Me. 310. 
 
 A distinction has been taken between the condition in restraint of mar- 
 riage in an ordinary deed or devise where the restraint is imposed on some 
 person other than the widow of the grantor or devisor and a condition an- 
 nexed by a husband to a devise to his widow, restraining her from a second 
 marriage ; and it now seems well settled that a condition in restraint of a 
 second marriage contained in a devise by the husband of the devisee will 
 be upheld, and this in spite of the position taken by some judges and elo- 
 quently urged by counsel that the policy of the law is opposed to any 
 restraint upon the legitimate increase of population, and that restraints 
 upon second marriage are odious to the common law and to public policy, 
 as being the invention of ecclesiastics, to whom such marriages were dis- 
 tasteful. In the case of the Commonwealth y. Stauffer, 10 Pa. St. 350, where 
 the devise was to a widow on condition of her not remarrying, the Court of 
 Common Pleas, relying on the text writers and on a nisi prius opinion of 
 Kennedy, J., iu Middleton v. Rice, 6 Pa. Law Journ. 234, held the con- 
 dition void, the learned president of the Court, after a glowing eulogium of 
 marriage and its consequences, saying, " The principles of morality — the 
 policy of the nation — the doctrines of the common law — the law of nature 
 and the law of God — ^unite in condemning as void the condition attempted 
 to be imposed by this testator upon his widow." Nevertheless, when the 
 case came to the Supreme Court, the decision of the Court below was reversed, 
 and in answer to the argument pressed at bar by counsel that a general re- 
 straint of marriage was void, Gibson, C. J., in the course of the opinion of the 
 Court said : " I know of no policy on which such a point could be rested, 
 except the policy which for the sake of a division of labor would make one 
 man maintain the children begotten by another. It would be extremely 
 difficult to say why a husband should not be at liberty to leave a home- 
 stead to his wife without being compelled to let her share it with a succes- 
 sor to his bed, and to use it as a nest to hatch a brood of strangers to his 
 blood." See also Vaughn v. Lovejoy, 34 Ala. 437 ; Dumely v. Schoeffler, 24 
 Mo. 170 ; Steger's Estate, 3 W. N. C. 368 ; Hough's Estate, 7 Id. 559 ; Bond- 
 
130 Gray v. Blanchaed. 
 
 brigMs Appeal, 9 Id. 475 ; Phillips v. Medbury, 7 Conn. 568 ; O'Neal v. 
 Ward, 2 H. & McH. 93 ; Luigart v. Eipley, 19 Ohio St. 24, and a condi- 
 tion in such case will be good without a devise over, Coppage v. Alexan- 
 der's Hdrs, 2 B. Men. 313; MeOullough's Appeal, 12 Pa. St. 197; see, 
 contra, JBinnerman v. Weaver, 8 Md. 517 ; but iu the same State it is held 
 that in a will, any devise over will be sufBcient to uphold such a condition, 
 for the reason that it shows the intent of the testator to make a further 
 disposition of the property in the event of the marriage. In Gough v. 
 Gough, 26 Md. 347, the testator made a devise to his wife, " provided she 
 will not marry . . . any man after my death ; " this was followed by a devise 
 over to the testator's heirs of the same estate that, but for the will, they 
 would have taken by descent. It was argued that the case presented was 
 that of a devise on condition, with no devise over in case of breach, since 
 the devisee would take by the worthier title, and hence the condition was 
 void. The Court, however, held otherwise, Bowie, C. J., saying, "The 
 argument, although ingenious, is not conclusive. The devise over makes 
 the primary bequest or devise valid, because it shows the intent of the 
 testator to make further testamentary disposition in the event of the first 
 devisee's marrying again, and in furtherance of that intent, m regard for 
 the ulterior disposition in favor of the substituted devisee, the law gives it 
 effect. This latent is not less obvious when the devisee stands in such 
 relation to the testator that he or she comes in by a superior title, notwith- 
 standing the devise, than when the ulterior devise is to a stranger." It may 
 be noticed, in passing, that equitable relief may be given even in some cases 
 of valid condition in restraint of marriage, as in Shackelford v. Hall, supra, 
 where the person restrained from marriage was also the heir-at-law of the 
 testator, and married a short time before the expiration of the time limited ; 
 the Court held that the forfeiture should not be enforced without proof of 
 knowledge, on the part of the heir, of the condition. In Georgia the sub- 
 ject of conditions in restraint of marriage has been made the subject of 
 statutory regulation. It beiag enacted by the code, that " every effort to 
 restrain or discourage marriage by contract, condition, limitation, or other- 
 wise, is invalid and void. Prohibitions of marriage to a particular person 
 or persons, or before a certain reasonable age, or other prudential provi- 
 sions looking only to the interest of the person to be benefited, and not in 
 general restraint of marriage, will be allowed and held valid." Code, Tit. 
 2, Ch. 1, Art. 1, Sect. 1, § 1697, p. 294. 
 
 Conditions in general restraint of alienation are void, both as contrary to 
 the policy of law in this country, and as repugnant to the estate granted, 
 as said by Littleton, Sect. 360 : " Also, if a feoffment be made upon this con- 
 dition that the feoffee shall not alien the land to any, this condition is void, 
 
Gray v. Blanchard. 131 
 
 because when a man so enfeoffed of lands or tenements, he hath power to 
 alien them to any person by the law. For if such a condition should be 
 good, then the condition should oust him of all power which the law gives 
 him, which should be against reason, and therefore such a condition is 
 void ;" and Coke adds, " and the like law is of a devise in fee upon condi- 
 tion that the devisee shall not alien, the condition is void. And so it is of 
 a grant, release, confirmation, or any other conveyance whereby a fee-sim- 
 ple doth pass. For it is absurd and repugnant to reason that he that hath 
 no possibility to have the land revert to him should restrain his feoffee in 
 fee-simple of all his power to alien. And so it is if a man be possessed of a 
 lease for years, or of a horse, or of any other chattel, real or personal, and 
 give or sell his whole interest or property thereia upon condition that the 
 donee or vendee shall not alien the same, the same is void, because his 
 whole interest and property is out of him, so as he hath no possibility of a 
 reverter, and it is against trade and traffic and bargaining and contracting 
 between man and man ; and it is within the reason of our author that it 
 should ouster him of all power given to him. Iniquum est ingenuis homini- 
 hus non esse liberam suarum alienationem ; and rerum suarum quilibet est 
 moderator et arbiter; and again, regulariter non valet pactum de re mea non 
 alienda. But these are to be understood of conditions annexed to the grant 
 or sale itself, in respect to this repugnancy, and not to any other collateral 
 thing, as hereafter shall appear." See also St. Germain, Doct. & Stud., 
 Dial. I., ch. 24. 
 
 The law at the present day is the same, and may be stated to be that a 
 condition in general restraint of alienation, or that the grantee shall not 
 alien during his life, is void, Blackstone Bank v. Davis, 21 Pick. 42 ; Eeif- 
 snyder v. Hunter, 19 Pa. St. 41 ; Walker v. Vincent, Id. 369 ; Dick v. Pitch- 
 ford, 1 Dev. & Bat. Eq. 480 ; Schermerhorn v. Negus, 1 Denio 448 ; Gleason 
 V. Fayerweather, 4 Gray 348 ; Sail v. Tufts, 18 Pick. 455. With regard to 
 conditions imposing partial restraints upon alienation, the authorities are, 
 however, not at one. A loijg line of cases holds that a condition imposing 
 a partial restraint as to time, so long as the time is not unreasonably long, 
 will be sustained, Cornelius v. Ivins, 2 Dutch. 376 ; Langdon v. Ingram's 
 Guardian, 28 Ind. 360; Hill v. Hill, 4 Barb. 419 ; McWilliams v. Nisley, 
 2 S. & R. 507 ; Stewart v. Brady, 3 Bush 623 ; Stewart v. Barrow, 7 Id. 
 368. A condition that an estate should not be alienated except to certain 
 persons for fifteen years, has been held reasonable, Hill v. Hill, supra, but 
 where a devise was made in fee, with a restriction against alienation in less 
 than twenty-five years from the death of the testator, the condition was held- 
 void as violating the rule against perpetuities, Oxley v. Lane, 35 N. Y. 347. 
 In a deed to three childi-en, a condition that the land should not be conveyed 
 
132 Gray v. Blanchard. 
 
 until the youngest reached the age of twenty-five years, has been held good ; 
 and in the same case it was also held that the period of restraint would not 
 be reduced to the attainment of twenty-one years, because at the time the 
 deed was made the legal time of majority was twenty-five years, the land 
 being then under the dominion of the Spanish law, and was afterwards 
 reduced to twenty-one by coming under the laws of Missouri, Dougal v. 
 Fryer, 3 Mo. 40. In Tohey v. Moore, 130 Mass. 448, the Supreme Judicial 
 Court of Massachusetts declared that the rule against perpetuities which 
 governs limitations over to third persons to take efiect in the future, had 
 never been held applicable to conditions, a right of entry for the breach of 
 which was reserved to the grantor or devisor and his heirs as the condition, 
 might be released by him or them at any time. See also French v. Old 
 South Society, 106 Id. 479. 
 
 Some very respectable authorities, however, deny the right to restrain 
 alienation at all. In Mandlebaum v. MoDonell, 29 Mich. 78, the Supreme 
 Court of Michigan, after reviewing the authorities, thus expressed its view 
 of the law : " The only safe rule of decision is to hold, as I understand the 
 common law for ages to have been, that a condition or restriction which 
 would suspend all power of alienation for a single day is inconsistent with 
 the estate granted, unreasonable and void';" and in the course of the opin- 
 ion of the Court, ^Jhristiancy, J., after adverting to the maxims, Conven- 
 tio privatorum non potest publico j'uri derogare, and Fortior et potentior 
 est dispositio legis quam hominis, said : " In reference to real estate, the 
 application of the maxim. Modus et conventio vincunt legem, is by the 
 other two maxims above cited confined to a much narrower range. Here, 
 for the sake of certainty and stability, the law has classed and defined all 
 the various interests and estates in lands which it recognizes the right of 
 any individual to hold or create, and the definition of each is made from, 
 and the estate known and recognized by, the combination of certain legal 
 incidents, many of which are so essential to the particular species of estate 
 that they cannot, by the parties creatiug it, be severed from it, as this would 
 be to create a new and mongrel estate unknown to the law and productive 
 of confiision and uncertainty." This decision has been approved by the 
 Supreme Court of Iowa in McCleary v. Ellii, 20 Am. L. R., N. S. 180. It 
 is, however, safe to say, in spite of these dissents, that the law generally 
 received is as we have stated above. 
 
 A condition that the grantee shall not alien to a particular person is 
 good, according to Littleton. " But if the condition be such that the feoffee 
 shall not alien to such a one, naming his name, or to any of his heirs or of 
 the issues of such a one let, or the like, which conditions do not take away all 
 power of alienation from the feoffee, etc., then such condition is good." Sect. 
 
Gray v. Blanchard. 133 
 
 361, 223 a ; and see Langdon v. Ingram's Exr., 28 Ind. 368, and Doct. & 
 Stud., Dial. I., ch. 24. 
 
 A condition in a grant to tenants in common that partition should not be 
 made has been upheld as a good condition. Hunt v. Wright, 47 N. H. 396. 
 Another form of condition, once common in New York, has been de- 
 clared void as in illegal restraint of alienation, viz., where a conveyance in 
 fee has been made, reserving a sum to be paid to the grantor upon any sub- 
 sequent alienation by a grantee, with the right of re-entry or non-payment 
 thereof. It was at one time thought that this condition had the sanction 
 of a decision in its favor, but in Jackson v. Sehutz, 18 Johns 174, which was 
 cited to that effect, the condition in question was mentioned by but one judge, 
 Platt, J., in his opinion, the other judges basing the decision of the case 
 upon another ground and not touching upon the validity or invalidity of 
 the condition. The question, however, came up squarely in De Peyster v. 
 Michael, 6 N. Y. 467. This was the case of a fee lease, which the Court de- 
 clared to be a fee-simple estate, granted on two conditions : First. That the 
 grantor in case of any future sale by the grantee should have the right 
 of pre-emption. Second. That on a sale by the grantee, one-fourth of the 
 price received should be paid to the grantor. The Court held the latter 
 condition void as an illegal restraint upon alienation. Rtjggles, C. J., in 
 the opinion of the Court, said : " If the continuance of the estate can be 
 made to depend on the payment of one-tenth, one-sixth, one-fourth part of 
 the value of the land, it may be made to depend on the payment of nine- 
 tenths or the whole of the sale-money. It is impossible on any known 
 principle to say that a condition to pay a quarter of the sale-money is 
 valid, and a condition to pay the half or any greater portion would be void. 
 If we affirm the validity of a condition to pay a quarter, we must affirm a 
 condition to pay any greater amount. It would be a bold assertion to say 
 that the adoption of such a principle would not operate as a fatal restraint 
 upon alienation. That which cannot be done by direct prohibition cannot 
 be done indirectly. The enforcement of the restriction upon alienation, by 
 requiring money to be paid for the privilege and by a forfeiture in case of 
 non-payment, separates the incident of free alienation from the estate in 
 fee as effectually as a direct prohibition." 
 
 The rules and restrictions upon conditions above noted, however, do not 
 apply to grants made by the government, which, in granting lands of 
 the public domain, may absolutely prohibit their transfer without the con- 
 sent of itself, as in Farrington v. Wilson, 29 Wise. 383, a condition in a 
 patent that the land should not be sold without the permission of the Presi- 
 dent of the United States, was held good ; in deciding the case the Court 
 relied on Gibson v. Chouteau, 13 Wall. 92, in which the Supreme Court of 
 12 
 
134 Geay v. Blanchakd. 
 
 the United States held that, " with respect to the public domain, the Con- 
 stitution vests in Congress the power of disposition and of making all need- 
 ful rules and regulations. That power is subject to no limitations. Congress 
 has the absolute right to prescribe the times, the conditions, and the mode 
 of transferring the property or any part of it, and to designate the person 
 to whom the transfer shall be made." 
 
 Conditions which limit the use or the purpose or manner of use of land 
 ■ may be sustamed. Conditions of this class are more frequently called re- 
 strictions, and are quite common, especially in cities. Of course a condi- 
 tion which amounted in its effect to depriving the grantee of the profits 
 of his land, would be held void, but limitations and restrictions have been 
 upheld with considerable liberality by the courts ; amongst others, the fol- 
 lowing conditions have been held good : That the premises granted shall 
 not be used for a tavern. Post v. Weil, 15 N. Y. S. C. 418 ; that liquor shall 
 not be manufactured, sold, or otherwise disposed of on the premises, O'Brien 
 V. Wetherell, 14 Kan. 616 ; Cowell v. Cohrado Springs Co., 3 Col. 82 ; S. C. 
 
 100 U. S. 55; Collins Manufaduriny Co. v. Marcy, 25 Conn. 242; 
 Plumb V. Tubbs, 41 N. Y. 442 ; that the land shall not be conveyed for 
 any purpose but that of a school-house, MeKissick v. Pickle, 16 Pa. St. 
 140 ; that no building of greater than a specified height shall be erected 
 upon the premises, Clark v. Martin, 49 Pa. St. 289; that no building 
 except of a certain kind shall be erected on the premises, and shall 
 not be occupied for the purposes of an offensive business. Dorr v. Harra- 
 han, 101 Mass. 531 ; Parker v. Nightingale, 6 Allen 341 ; Gillis v. Bailey, 
 21 N. H. 149 ; that no bay-window be built in a house, lAnzee v. Mixer, 
 
 101 Mass. 512 ; that buildings shall not be erected which would interrupt 
 the view from certain other properties, Gihert v. Peteler, 38 N. Y. 165 ; 
 Fuller V. Arms, 45 Vt. 400. These restrictions will be binding on the 
 subsequent purchasers of the land, and will be enforced in favor of those 
 aggrieved by their violation and for whose benefit they were originally 
 made, even if the grantor or his heirs should refuse to enforce the condi- 
 tion in the usual way, and there be no privity between the aggrieved per- 
 sons and the aggressors, restrictions standing in this respect on a diflferent 
 basis from other conditions as will be noticed more fully hereafter. And it is 
 also held that there may be a valid restriction, although it is provided in the 
 deed that a violation thereof shall not work a forfeiture, as in Tobeyr. Moore, 
 130 Mass. 448, where it was provided that an erection made, or business 
 carried on in violation of certain " restrictions and conditions," should not 
 work a forfeiture of the estate, but vest a right of entry in the grantoK or 
 his heirs to abate the nuisance. With regard to what restrictions or limita- 
 tions in use would be permitted to stand, the words of Parkee, C. J., in 
 
Gray v. Blanchard. 135 
 
 Gray v. Blanchard, 8 Pick. 284, are well in point : " A condition in a deed 
 of a house that there should be no windows in it or no passage in or out, 
 or that the grantee should never occupy or sell it, would come within the 
 rule, and be void ; but that there should be no door or window on one side 
 or end, that it should not be sold for several years, or to a particular 
 person, would fall within the exceptions to the rule, and form a valid con- 
 dition." 
 
 Following the idea suggested, it may be said that a mere capricious 
 restraint on use will not be sustained. Thus in Mitchell v. Leavitt, 30 Conn. 
 587, where a condition prohibited the erection of any saw- or grist-mill, and 
 it did not appear that the restriction was for the benefit of the grantor or 
 of any piece of property, the restriction was declared of no effect and void, 
 as against public policy. 
 
 In Newherh v. Newkerh, 2 Caines 345, a condition that the devisees 
 should continue to inhabit the town of H., a small country town, was held 
 void as repugnant to the estate granted and as absurd. Livingston, J., 
 said : " It is repugnant to the estate granted. If the devisees were always 
 to inhabit the town of H., they could not sell. If they did, were the gran- 
 tees also to be inhabitants of the same town ? Or were the devisees them- 
 selves, even after alienation, to remain there ? If continuing there only 
 while they held the estate were sufficient, they might defeat the testator's 
 intention by parting with the land as soon as that situation became irksome 
 to them, unless their assignees were forever to live in that town, which 
 would not only be a great cl(3g on its alienation, but would be entailing a 
 very unusual condition on the owners of this property, and one that was to 
 have no end, which the testator had no right to do. If there be no con- 
 tradiction between the devise and the condition or unnecessary restraint on 
 the devisee, it is too absurd and unreasonable to be countenanced. It is 
 absurd for any man to compel all his children to live in a small country 
 village as the condition of enjoying a piece of woodland lying there." 
 
 In the very recent case oi .Hamond v. Port Royal and Augusta Railway 
 Co., 15 S. Carolina 10, 12 Reporter 666, a new ground of avoiding a con- 
 dition was attempted. The railroad company, which had a right to enter 
 upon the plaintiff's land and condemn it for railway purposes, by virtue of 
 an act of legislature, did not do so, but bought the land from the plaintiff, 
 taking a deed therefor, " upon the express condition" that a certain system 
 of drainage then in operation on the land should be kept up by the com- 
 pany ; having failed to do so, in response to an action by the plaintiff to 
 recover the land for breach of condition, it was contended by the company 
 that the condition was avoided by public policy, it being contrary thereto 
 to allow a corporation, chartered for the public good, and which could 
 
136 Gray v. Blanchakd. 
 
 have condemned the land by legal process, to be subject to a condition 
 which would impair its freedom of action, but the Court said: "We do 
 not think that considerations of public policy can enter into this case. 
 The Port Royal company had the right, under the act of the General 
 Assembly, to condemn this strip of land, and take possession by virtue of 
 the mode therein prescribed. If it saw proper to resort to a private agree- 
 ment and purchase, we do not see that it can interpose the public interest 
 as a shield against their positive and distinct contracts, especially as the 
 conditions imposed were reasonable and proper, and do not appear to have 
 been surrounded with any great difficulty in being met and discharged." 
 
 In Michigan and Wisconsin, conditions " which are merely nominal and 
 evince no intention of actual or substantial benefit to the party to whom 
 or in whose favor they are to be performed," are practically prohibited, it 
 being provided by statute in each State that such conditions "may be 
 wholly disregarded, and a failure to perform the same shall in no case 
 operate as a forfeiture of the lands conveyed subject thereto," Rev. St. Wis- 
 consin, ch. xcv., § 2070, p. 617 ; 2 Comp. Laws Mich., ch. cxlvii., § 46, p. 
 1330. See Barrie v. Smith, 10 North- Western Reporter 168. 
 
 Character of Estate on Condition before Forfeiture. 
 
 An estate granted on condition, untU it is forfeited for a breach thereof, 
 difiers in no respect from an estate absolute of the same extent, and may 
 be used and enjoyed in precisely the same mknner, except so far as the con- 
 dition itself expressly curtails the free use and enjoyment of the land. 
 Chapman v. Pingree, 67 Me. 198; Taylor v. Sutton, 15 Ga. 103; Shattwik 
 V. Hastings, 99 Mass. 23. 
 
 t 
 Efifect of Non-performance of Condition. 
 
 The effect of the non-performance of a condition precedent is to prevent 
 the estate granted on such condition from ever vesting in the grantee, Rol- 
 lins V. Riley, 44 N. H. 9 ; Donohue v. McNichol, 61 Pa. St. 73 ; and this is 
 the case even if the performance be prevented by the act of God, Mizell 
 V. Burnett, 4 Jones, N. C. Law 249. 
 
 The effect of the non-performance or breach of a condition subsequent, 
 is to render the estate granted liable to forfeiture at the option of the per- 
 son entitled to ,take advantage of such breach, Stanley v. Colt, 5 Wall. 119 ; 
 unless the condition is one which the law will not enforce, in which case the 
 estate will become vested absolutely in the grantee, Barksdale v. Elam, 30 
 Miss. 694; Taylor v. Sitton, 15 Ga. 103; City of Philadelphia y. Girard's 
 
Gray v. Blanchaed. 137 
 
 Heirs, 45 Pa. St. 9 ; R&ifmyder v. Hunter, 19 Id. 41 ; Walker v. Vincent, 
 Id. 369. 
 
 Performance. 
 
 Conditions subsequent, it has been repeatedly said, are not favored in 
 law, and when relied on to work a forfeiture, must be strictly construed, 
 Merrifield v. Cobleigh, 4 Gush. 178 ; Hunt v. Beeson, 18 Ind. 380 ; Gadberry 
 V. Sheppard, 27 Miss. 203; Bradstreet v. Clark, 21 Pick. 389; Hoyt v. -fiTm- 
 ball, 49 N. H. 327 ; Page v. Palrfier, 48 Id. 385 ; Laberee v. Carleton, 53 Me. 
 211"; the rule as laid down by Shaw, C. J., in Rawson v. Inhabitants of 
 School District No. 5, 7 Allen 125, " Such a condition when relied on to 
 work a forfeit is to be construed by the Court with great strictness, the 
 demandant shall have his exact legal rights and no more." Examples of 
 this strict rule of construction are quite numerous. In the Michigan State 
 Bank v. Hastings, 1 Dougl. 228, where the bank had assigned its land and 
 other property on condition that it should be indemniiied against its debts, 
 and a judgment was recorded on a mortgage upon the assigned land, it was 
 held that there was no breach of condition before an action was brought 
 on the bond aecoflipanying the mortgage. 
 
 In Emerson v. Simpson, 43 N. H. 475, a deed was made on condition that 
 the grantee keep up forever a certain fence, no mention was made of heirs, 
 executors, or assigns of the grantee, and it was held that the condition 
 was personal to the grantee, and expired with his life. 
 
 In Voris v. Renshaw, 49 111. 425, a condition not to assign except for a 
 term of years prior to 1861, was held not to prohibit a lease for ninety- 
 nine years being made previous to that date. 
 
 In McKelway v. Seymour, 29 N. J. Law 321, a condition that land should 
 be used for a certain purpose, was held not to prohibit the use of some of 
 it for another purpose, so long as the originally contemplated use was also 
 kept up. 
 
 In The Congregational Society of Halifax v. Stark, 34 Vt. 243, the con- 
 dition was that a certain congregational society should meet on the ground 
 granted, or have a house there, and appropriate the same to a certain form 
 of worship. This was held not to prohibit the society from removing and 
 permitting another society to carry on the same species of worship on the 
 granted premises. 
 
 In Nowellv. Boston Academy of Notre Dame, 130 Mass. 209, a condition 
 that no building should be erected within ten feet of the street was held 
 not violated by the erection within the said limit of a brick wall to be 
 used as a fence. 
 
 In Farrington v. Wilson, 29 Wise. 383, a condition that the grantee should 
 12* 
 
138 Geay v. Blanchard. 
 
 not convey without the consent of the President of the United States was 
 held not to be binding on the heirs of the grantee, they not being mentioned 
 in the condition in the patent. 
 
 The performance of a condition, its requirements being ascertained, must 
 be in good faith and ^bstantial, and it is sufficient if it be substantial 
 rather than exact, Spaulding v. Hallenheclc, 39 Barb. 79 ; for example, 
 where the condition is that buildings be used for a special purpose, a tem- 
 porary use of them for another, and not improper one, not interfering with 
 the specified use, has been held not to work a forfeiture — in other words, to 
 make a breach in a condition of this kind there must be a permanent use 
 and occupation for alien purposes. In McKissiek v. Pickle, 16 Pa. St. 140, 
 allowing a poor woman to occupy temporary quarters in a building, 
 granted on condition that it should be used as a school and meeting-house 
 only, was held not to work a forfeiture ; and in Broadway v. State, 8 Blackf. 
 290, a similar condition was held not violated by the occasional use of the 
 school-house for political meetings. 
 
 A condition that a certain institute should be permanently located upon 
 the lands granted, before a certain date, was held by the Supreme Court 
 of the United States fulfilled, by the passage, before tht said date, by the 
 governing body of the institute, locating it in accordance with the terms 
 of the deed, followed by building on the same land after the date fixed ; 
 and that although the institute was afterwards burned and was reerected 
 upon grounds other than those granted. Miller J., in the course of the 
 opinion of the Court, said, adverting to the condition, " Did this mean that 
 all the buildings which the institution might ever need were to be built 
 within that time, or did it mean that the officers were to determine in good 
 faith the place where the buildings for its use should be erected ? It is 
 clear to us that the latter was the real meaning of the parties, and that 
 when the trustees passed their resolution locating the buildings on the land, 
 with the intention that it should be the permanent place of conducting the 
 business of the .corporation, they had permanently located the institute 
 within the true construction of the contract." Mead v. Ballard, 7 Wall. 
 290. See, however, Police Jury v. Reeves, 6 Mart. N. S. 221 ; Indianapolis, 
 Peru, and Chicago R. W. Co. v. Hood, 66 Ind. 580. 
 
 In Southard v. Central Railroad Co. of New Jersey, 2 Dutch. 13, there was 
 a grant on condition that the grantee should use the demised lands as a 
 depot, that it should not establish any other depot within a mile, and not 
 erect or suffer the erection of any public house or any other house, except 
 such as might be necessary for the sole use and accommodation of the 
 grantee. The depot-master, with the knowledge and permission of the com- 
 pany, opened an oyster-stand, and in the course of five years lodged a few 
 
Gray v. Blanchaed. 139 
 
 people, and the company allowed the merchants of the town to take their 
 freight from the cars at their own doors, instead of compelling them to come 
 to the depot for it. / It was held that the condition had been substantially 
 complied with, and that there was no forfeiture. A condition that the land 
 granted shall be used for a tanyard, without any time of such use being 
 named, is held fulfilled by user as a tanyard for twenty-four years, Hunt v. 
 Beeson, 18 Ind. 380. Where a tenant in common devised his interest to 
 his co-tenant on condition that he should convey to the testator's daughter 
 a certain portion of the land, the condition was held fulfilled when the de- 
 visee entered on the premises and set apart to the daughter her portion, 
 which she entered upon and enjoyed, although no formal conveyance was 
 made to her, Pfttmmer v. Neile, 6 W. & S. 91. In a devise to J. B. "pro- 
 vided that if he do not return from his present voyage, or in case he does 
 not return to Philadelphia within a reasonable time after my decease, but 
 departs this life without lawful issue," the estate should go over, the condition 
 was held fulfilled by a return of J. B. during the lifetime of the testatrix, 
 McCarthy v. Dawson, 1 Wliart. 4. Where a deed was made to the Methodist 
 Protestant Church of land " for church purposes," with a condition that if 
 any seats in the church building were rented or sold, the land should revert, 
 and the land was afterwards sold to pay the debts of the church corpora- 
 tion, it was held that the mere sale worked no forfeiture, but that so long as 
 the land was used for church purposes and no seats were rented or sold the 
 title was good, Woodworth v. Payne, 74 N. Y. 196 ; but where the convey- 
 ance was on condition that the land conveyed should be applied to the 
 support of such ministers as might preach in a certain meeting-house built 
 upon the land granted, and in others erected on its site, and to no other 
 purpose whatever ; and the grantees took down the house and built another 
 on another lot and voted that the granted lot should " be reserved for the 
 erection of a meeting-house at some period hereafter when said parish may 
 deem it expedient." It was held that there was in the vote sufl5cient evi- 
 dence of an intention not to apply the subject of the grant in accordance 
 with the condition, to work a forfeiture upon the carrying into efiect of the 
 resolution, Austin v. Cambridgeport Parish, 21 Pick. 215. 
 
 Where there was a condition against the sale of liquor upon the granted 
 premises, and a tenant of the grantee without his authorization sold liquor 
 thereon, it was held that the grantee was not chargeable with a breach in 
 the absence of any proof of negligence on his part, Collins Manufacturing 
 Co. V. Marcy, 25 Conn. 242. 
 
 A condition that a house shall be kept in good repair is broken when, 
 the house having been burned down, the grantee or devisee fails to rebuild 
 the same, Tllden v. Tilden, 13 Gi-ay 103. 
 
140 Gray v. Blanchaed. 
 
 Where a deed was made conditioned upon the building of a church upon 
 the premises and the laying out of a burying-ground upon the same, and 
 the church was buUt elsewhere and the premises granted were kept for the 
 burying-ground, it was held that a forfeiture had been incurred, Dokin v. 
 Mayor and Oouneil of Baltimore, 4 Gill 394. 
 
 A condition not to claim a debt, or against an estate, is broken by the 
 mere claim itself, even if nothing be recovered thereby, Frederick v. Cfray, 
 10 S. & K. 183. 
 
 The performance of a condition must, in general, be by the grantee or 
 his heirs, or by one interested in having the condition performed, Frederick 
 V. Gray, supra ; Wilson.-^. Wilson, 38 Me. 18. Some conditions are, however, of 
 a personal character, and their performance must be by the grantee himself 
 unless by the permission of the grantor or his heirs, another is allowed to per- 
 form them. Support is generally considered one of these personal conditions, 
 Rollins Y. Riley, 44 K H. 9 ; Barker y. Cobb, 36 Id. 344, though it has been 
 held that, in the case of a condition for support of persons other than the 
 grantor, the grantee was not bound personally to oversee the affording of 
 support to those entitled thereto, but might delegate that duty to others, 
 TVilson V. Wilson, supra. The grantee or devisee subject to a condition for 
 the support of persons, cannot require the person to confine his or her right 
 to support to a right receivable only on the premises demised or granted ; 
 but the support may be demanded at any reasonable place, Wilder v. Whitte- 
 more, 15 Mass. 262; Thayer r. Richards, 19 Pick. 398; Petteey. Case, 2 
 Allen 546. 
 
 Performance of a condition will not be excused on account of the fact 
 that the person who is to perform it is a feine covert, Garrett v. Scouten, 3 
 Denio 334 ; Barker v. Cobb, supra ; or a minor, Cross v. Carson, 8 Blackf. 138. 
 
 Time of Performance. 
 
 As to the time of performance of a condition, the authorities do not all 
 announce the same doctrine. In Finlay v. King's Lessee, 3 Pet. 346, Mae- 
 shall, C. J. , stated the law to be as follows : " It is also a general rule that, 
 if an estate be given on a condition, for the performance of which no time is 
 limited, the devisee has his life for performance." The true rule, however, 
 with its exceptions, seems to be better stated by Gibson, J., in HamUton v. 
 Elliott, 5 S. & K. 375, as follows : " It is an undoubted general rule that, 
 where the condition is to be performed to the feoffor himself, and there 
 is no limitation as to time, but only as to person, the feoffee has his whole 
 lifetime to perform it. The reason is that, conditions not favored by the 
 law, are taken strictly, and a literal compliance with their terms is all that 
 
Gray v. Blanchard. 141 
 
 is required. But to this there are exceptions, in which, from the reason and 
 nature of the thing, the condition shall be performed according not merely 
 to the letter of the agreement, but according to its spirit and the true 
 intent and meaning of the parties. . . . From a view of all the cases the rule 
 seems to be that where a prompt performance of the condition is necessary 
 to give the feoffor the whole benefit, contemplated to be secured to him, 
 or where its immediate fruition formed his motive for entering into the 
 agreement, the feoffee shall not have his lifetime, but only a reasonable 
 time." 
 
 In Hayden v. Stoughton, 5 Pick. 528, Putnam, J., regarded what may be 
 called the reasonable-time rule as the general one ; he said : "Where no par- 
 ticular time is mentioned for the performance of a condition subsequent, 
 the law requires that it be done in a reasonable time." See also Boss v. 
 Tremain, 2 Mete. 495; Allen v. Howe, 105 Mass. 241 ; Fish' v. Chandler, 
 30 Me. 82 ; Eowell v. Jewett, 69 Me. 293. In Adams v. Ore Knob Copper 
 Co., 12 Eeporter 166, where a grant of the "mineral and metallic interest" 
 in certain lands was made upon a condition to be performed by the grantees 
 " at their own convenience and time," and no present benefit accrued to the 
 grantors, the United States Circuit Court for North Carolina, Western Dis- 
 trict, held that the condition must be performed within a reasonable time. 
 It is thought that the rule laid down by Gibson, J., would probably be 
 that followed by most courts. The rule, as baldly stated in Finlayy. King's 
 Lessee, seems entirely too liberal to the devisee, and in that case, where the 
 condition was the devisee should marry one of certain sisters, the allow- 
 ance to him of his whole lifetime in which to get married would certainly 
 have a decided tendency to defeat the desires of the testator. 
 
 By Whom Forfeiture is to be Taken Advantage of. 
 
 A forfeiture may be taken advantage of by the grantor and his heirs, Van 
 Rensselaerv. Ball, 19 N. Y. 100 ; N!e.r>n.M^N^wYork aud^Erie Railroad. 2 Ker- 
 nan 121 ; Marwiek v. Andrews, 25 Me. 525 ; Winn v. Cole's Heirs, Walk. 
 (Miss. Rep.) 1 19 ; and the heir need not be expressly named in the instrument 
 creating the condition, to entitle him to take advantage of a breach thereof, 
 occurring either in the lifetime of the grantor or after his death, Jackson v. 
 Topping, 1 Wend. 388 ; Warner v. Bennett, 31 Conn. 468 ; Thomas v. Record, 
 47 Me. 500 ; and to have any effect upon the estate the condition must be 
 taken advantage of by those to whom the right so to do belongs ; and it may 
 be stated as a general rule, that with the breach of a condition a stranger 
 has nothing to do, and a court will not examine at his request, or in a col- 
 lateral proceeding, the question whether a condition has been broken and a 
 
142 Gray v. Blanchaed. 
 
 forfeiture incurred, Norris v. Milner, 20 Ga. 563 ; Fonda v. Sage, 46 Barb. 
 109 ; Sehulenberff v. Harriman, 21 Wall. 44 ; Rector of King's Chapel v. 
 Pelham, 9 Mass. 501 ; Board of Normal School District v. Trustees of First 
 Baptist Church of Normal, 63 111. 204; Smith v. Brannan, 13 Gal. 107; 
 Beioey v. Williams, 40 N. H. 222. The case of Dolan v. The Mayor and 
 Council of Baltimore, 4 Gill 394, seems, however, to violate this rule. In 
 that case the condition in the deed had been broken, but the grantor had made 
 no entry for the breach. The city of Baltimore took steps looking towards 
 a sale of the graveyard, part of the premises granted, for unpaid munici- 
 pal taxes for paving and grading the adjoining street. A bill was filed by 
 the pastor and a lay member of the church, in behalf thereof, to restrain 
 the city from selling the land. The Court held that the complainants had 
 no status in court, the title of the church having been forfeited. This ease 
 seems decidedly opposed to the current of authority, and it is submitted 
 that the sounder view of the law is .that contained in the dissenting opinion 
 of Dorset, J., and not that taken by the majority of the Court, and the 
 rule as above stated may be taken as universal, at least where there is no 
 express reservation of a condition to any one else than the grantor or his 
 heirs. Whether a condition can be reserved to any one else is perhaps a 
 more doubtful question; it has been held that no such reservation can be 
 made. See Gray v. Blanchard, 8 Pick. 284, but in McKissick v. Pickle, 16 
 Pa, St. 140, the Supreme Court of Pennsylvania held that a reservation 
 could be made to the assignees of a grantor, and that a sheriff's vendee 
 was such an assignee ; and in Hamilton v. Kneeland, 1 Nev. 40, it was denied 
 that the common law rule that a condition could not be reserved except to 
 the grantor and his heirs was recognized in this country. 
 
 It is not necessary that the owner of a condition should have any bene- 
 ficial interest in any other estate which may be affected usefully by the 
 condition, Gray v. Blanchard, supra. 
 
 The right to take advantage of a condition cannot be conveyed so as to 
 give the assignee a right to enforce it, but the conveyance will be so far 
 effective that it will destroy the right of the grantor to enforce it, thus prac- 
 tically destroying the condition, Ruch v. Roch Island, 7 Otto 693 ; People 
 of Vermont v. Society for the Propagation of the Gospel, 2 Paine 545 ; Bangor 
 Y.Warren, 34 Me. 324; Warner v. Bennett, 31 Conn. 468; UnderhiUy. B. 
 R., 20 Barb. 455 ; Parsons v. Miller, 15 Wend. 561 ; Tinkham v. Erie R. R. 
 Co., 393 ; Rice J. Bosto n and Worcestm- R. R.. 12A llen 141 ; and the effect is 
 not altered by the fact that the person to whom the conveyance was made 
 is the same who could subsequently have claimed the condition as heir of 
 the grantor, Rice v. R. R., supra ; nor, it seems, is the case different where 
 the conveyance is by force of law, as one made under an insolvent act, 
 
Gray v. Blanchard. 143 
 
 Steams v. Harris, 8 Allen 597. A devisee of a condition cannot take ad- 
 vantage of it, Southard v. Central R. R. of N. J., 2 Dutch. 13, except where 
 a condition is rendered devisable by statute, Southard v. Central R. R. of 
 N. J., supra; Austin v. Cambridgeport Parish, 21 Pick. 215; Clapp v. 
 Stoughton, 10 Id. 463. 
 
 Forfeiture and Entry. 
 
 To forfeit the estate granted for breach of condition, the breach must be 
 taken advantage of by some positive act on the part of the person entitled 
 to the condition, and herein consists the great distinction between a condition 
 and a conditional limitation. In the latter case the estate being determined 
 on the arrival of the period of limitation without any act, entry, or claim. 
 
 The usual way of taking advantage of a condition is by entry or some 
 equivalent act, and the right of entry is part of a condition itself and need 
 not be expressly reserved, Thomas v. Record, 47 Me. 500 ; Osgood v. Abbott, 
 58 Id. 73 ; Gray v. Blanchard, supra. Entry, or its equivalent claim, is re- 
 garded by many authorities as absolutely necessary for the divestiture of 
 an estate on condition, Chalker v. Chalker, 1 Conn. 79 ; Bowen v. Boiven, 
 18 Id. 535 ; Phelps v. Chesson, 12 Ired. Law 194 ; Stone v. Ellis, 9 Cush. 95 ; 
 Guild V. Richards, 16 Gray 3(^i^lieo^w v. Drummond, 5 Mass. 321 ; Hub- 
 bard V. Hubbard, 97 Id. 188 ; F^mav. Sage, 46 Barb. 109 ; Sperry v. Sperry, 
 8 N. H. 477 ; WUlard v. Henry, 2 Id. 120 ; Jewett v. Berry, 20 Id. 36 ; Wil- 
 liams V. Angell, 7 K. 1. 145 ; Tallman v. Snow, 58 Me. 73 ; Throp v. Johnson, 
 3 Ind. 343 ; Boone y. Tipton, 15 Id. 270 ; Memphis and Charleston R. R. Co. 
 v. Neighbors, 51 Miss. 413 ; Voris v. Renshaw, 49 111. 425 ; Board of Educa- 
 tion V. Trustees of First Baptist Church, 63 Id. 204. In Connecticut an ac- 
 tion of disseizin has been held not a sufficient substitute for entry or claim, 
 Chalker v. Chalker ; and the Maine statute with regard to entry has been 
 held not to dispense with entry where it was formerly necessary to revest 
 an estate or to enforce a forfeiture, Marwick v. Andrews, 25 Me. 525. Actual 
 entry, or, if it be impossible to make entry, continual claim is necessary in 
 South Carolina, Hamond v. Port Royal and Augusta R. R. Co., 15 S. Car- 
 olina 10, 12 Reporter 666. 
 
 Other authorities, however, have not regarded entry as necessary, and 
 have held that an action is a sufficient substitute therefor. In Cornelius v. 
 Ivins, 2 Dutch. 376, the Court quoted with approbation the words of Lord 
 Mansfield, in Goodright v. Cator, Dougl. 485, " We look upon it as hav- 
 ing been finally settled in 1703, by the opinion, of all the judges upon 
 deliberation and consideration of all the cases, that actual entry is only 
 necessary to enforce a fine. . . . The reason of the thing is agreeable to the 
 
144 Gray v. Blanchaed. 
 
 practice, for it is absurd to tangle men's rights in nets of form without 
 meaning, and ejectment being a mere creature of the court framed for the 
 purpose of bringing the right to an examination, an actual entry can be of 
 no service," and held that an ejectment could be brought for a breach of 
 condition without actual entry being previously made. 
 
 The same view of the law was taken in New York as early as 1799, 
 in Jackson v. Crysler, 1 Johns. Cas. 125, in which the Court said " there 
 was formerly much contrariety in the cases on this subject ; but it seems 
 to be settled by repeated decisions for near a century that the confession 
 of lease, entry, and ouster is sufficient to maintain an ejectment for con- 
 dition broken, and that an actual entry is not necessary except to avoid a 
 fine." 
 
 Actual entry is not necessary in Pennsylvania, SJieaffer v. Sheaffer, 37 
 Pa. St. 525 ; Brown v. Bennett, 75 Id. 423. In Massachusetts, as we have 
 seen by the cases above cited, the rule was for a long time that entry was 
 necessary, but since the adoption of the Revised Statutes, c. 101, § 48, actual 
 entry is no longer necessary, and the bringing of an action is regarded as 
 a sufficient substitute, Austin v. Camhridgeport Parish, 21 Pick. 215. 
 
 Where the grantor has already the possession of the premises granted 
 on condition, either concurrently with the grantee or otherwise, an entry 
 is not required, as it would be simply absurd for the grantor to go out of 
 possession for mere sake of entering to reestablish it, Lincoln and Ken- 
 nebec Baiih V. Drummond, 5 Mass. 321 ; Rollins v. Riley, 44 N. H. 9 ; 
 Hamilton v. Elliott, 17 S. & R. 375 ; Adams v. Ore Knob Copper Co., 12 
 Reporter 166 ; but it has been held that where the grantor is in possession, 
 he must, to take advantage of the forfeiture, announce that he holds for 
 condition broken, or in some way give notice of the intent to insist upon 
 forfeiture, Willard v. Henry, 2 N. H. 120 ; on the other hand it has been 
 held that the grantor in possession at the time, and after a condition is 
 broken, will be presumed to hold on that account, Andrews v. Senter, 32 
 Me. 394. 
 
 To make an entry effective to work a forfeiture for breach of condition, 
 it must be shown to have been made for the purpose of enforcing the for- 
 feiture, and an entry made for another purpose will not sujjport an eject- 
 ment, although at the time of entry a condition had been broken, Bowen 
 V. Bowen, 18 Conn. 535 ; Stone v. Ellis, 9 Cush. 95. An entry upon a 
 wild, uncultivated lot in the name of a number of such lots situated in the 
 same county, conveyed by one deed and subject to the same condition, will 
 be good as to all, Greeri v. Pettingill, 47 N. H. 377 ; but a mere turning 
 of cattle upon wild and unimproved land is not a sufficient entry. Guild v. 
 Richards, 16 Gray 309. It is also held, that where the grantor and the 
 
Gray v. Blanchaed. 145 
 
 grantee have agreed as to what act shall constitute a reentry, a compliance 
 with such agreement is sufficient to divest the grantee's estate, Swoll v. 
 Oliver, 61 Ga. 248. 
 
 As a general rule, where the condition is the prompt performance of a cer- 
 tain act, no request to perform it is necessary before the person entitled to 
 the condition can enter or otherwise take advantage of a breach, Whitton v. 
 Whitton, 38 N. H. 127 ; Bowell v. Jewett, 69 Me. 293 ; but where the con- 
 dition is the payment of a rent charge, then in order to divest a freehold, 
 a demand of the precise sum due, on the very day that it is due and on the 
 most notorious part of the premises out of which the rent issues, must be 
 made, McCormiok v. Connell, 6 S. & E. 151. In New York the neces- 
 sity for a demand has been abrogated by statute, and the bringing of an 
 ejectment is a sufficient demand, Hosford v. Bullard, 39 N. Y. 147. 
 
 In view of the strictness with which conditions are interpreted, it has 
 been held that where the deed provides for a reentry on the neglect or 
 refusal of the grantee to perform the condition, a demand must be made 
 before the neglect or refusal of the grantee will be held to have occurred, 
 Merrifield v. Cobkigh, 4 Cush. 178. 
 
 Manner of Enforcement of Forfeiture by the State. 
 
 Where the person entitled to the condition is the State, the method of 
 enforcing a forfeiture for breach is not the same as in the case of a private 
 person. The rule upon this branch of the subject is well stated by Lewis, 
 C. J., in The People v. Brown, 1 Caines 424, as follows : " First. That the 
 State can acquire seizin or possession of lands for breach of condition by 
 matter of record only. 
 
 " Second. That generally where entry is necessary in the case of a com- 
 mon person, an office is necessary to entitle the State. 
 
 " Third. Where entry and action are necessary to a common person, an 
 office and scire faeias are necessary to the State." 
 
 And in Schutenberg v. Harriman, 21 Wall. 44, Field, J., said : " In 
 what manner the reserved right of the grantor for breach of condition must 
 be asserted so as to restore the estate, depends on the character of the grant. 
 If it be a private grant, that right must be asserted by entry or its equiva- 
 lent. If the grant be a public one, it must be asserted by judicial proceed- 
 ings, the equivalent of an inquest of office at common law, finding the fact 
 of forfeiture and adjudging the restoration of the estate on that ground, or 
 there must be some legislative assertion of the ownership of the property 
 for breach of the condition, such as an act directing the possession and ap- 
 plication of the property, or that it be offered for sale or settlement. 
 13 K 
 
146 Gray v. Blanchard. 
 
 Excuse or Waiver of Condition. 
 
 The performance of a condition may be excused, or after breach thereof 
 the forfeiture of the estate may be waived ; and where the condition itself 
 is waived, whether before or after breach, a subsequent breach cannot 
 be taken advantage of, Diokey v. MeGullough, 2 "W. & S. 88; Barrie v. 
 Smith, Supreme Court of Michigan, 10 North- Western Reporter 168; S.C. 
 12 Reporter 187 ; it is otherwise where the waiver is merely of the right 
 to take advantage of some particular breach. 
 
 The condition before breach may be excused not only by the grantor or 
 his heirs, but also by the person towards whom it is to be performed, and 
 in that case the condition is discharged, Jones v. Bramhlet, 1 Scam. 276 ; as 
 where the condition was to support the grantor and his wife, and after the 
 grantor's death the wife released the condition, it was held as good dis- 
 charge thereof, Tanner v. Van Bibber, 2 Duv. 550. A refusal by the 
 person beneficially entitled to the performance of a condition to receive the 
 same, will be a release, Petro \. Cassiday, 13 Ind. 289 ; Boone v. Tipton, 
 15 Id. 270. 
 
 A waiver of a condition may be by acts as well as by express words, 
 Andrews v. Senter, 32 Me. 394 ; Sharon Iron Co. v. Oity of Erie, 41 Pa. St. 
 342 ; but no mere parole assent or passive acquiescence can destroy the 
 effect of a condition contained in a deed at least prior to a breach, Jackson 
 V. Crysler, 1 Johns. Cas. 125 ; though silence, where it is coupled with 
 standing by and allowing acts to be done and expense to be incurred by 
 others which but for the presumed assent they would not have done or have 
 incurred, may have the effect of a waiver, Hooper v. Oummings, 45 Me. 
 359. In Barrie v. Smith, 10 North- Western Reporter 168, the condition 
 was that no intoxicating liquor should be sold on the premises conveyed. 
 The grantee sold liquor thereupon with the knowledge of the grantors, or 
 of some of them, and then sold the land to the defendant, who entered and 
 made valuable improvements for the purpose of carrying on the liquor 
 trade. The grantors then attempted to enforce the forfeiture. It was 
 held that they had, by their inaction during the sale of liquor by the pre- 
 vious owner, and by permitting the defendant to make the improvements, 
 waived the condition. Mere indulgence will not be construed as a waiver, 
 especially where the accompanying words or deeds of the grantor show that 
 it was not intended as such, as where the condition in a deed was that no 
 building of a height greater than ten feet should be erected on the premises 
 conveyed, and the grantor allowed the grantee to erect one eleven feet high, 
 but with the express understanding and agreement that the condition should 
 not be considered impaired or discharged, it was held that the condition 
 
Gray v. Blaistchard. 147 
 
 remained in force, Clarh v. Martin, 49 Pa. St. 289. Where the grantor by 
 his own acts prevents or renders impossible the performance of a condition 
 he cannot take advantage of a breach, Jones v. Walker, 13 B. Mon. 163 ; 
 Lamb v. Miller, 18 Pa. 448 ; Jones v. Chesapeake and Ohio R. R. Co., 14 
 W. Va. 514. 
 
 Where a condition is released in part, the whole condition is gone, Dakin 
 v. Williams, 17 Wend. 447, but a covenant coupled with the condition will 
 not be destroyed thereby, Id. ; Stuyvesatit v. Mayor of New York, 11 Paige, 
 c. 414, and this rule is only applied where it is sought to enforce a forfeiture, 
 Clark V. Martin, supra. 
 
 After breach, a waiver may be implied from acts upon the part of the 
 grantor treating the condition as still ia force, Hubbard v. Hubbard, 97 
 Mass. 188, as where the condition was for support, contLauing to receive the 
 support, or by recognizing its continuance even by providing for the sub- 
 stitution of one act for another, as in Sharon Iron Co. v. City of Erie, 41 
 Pa. St. 342. In that case the condition reserved by the city of Erie, the 
 grantor, was that the grantee should, within a time specified, erect a sub- 
 stantial bloomery ; after the time had expired, the grantor, by a resolution, 
 extended the time for performance of the condition, and allowed the substi- 
 tution of a blast furnace for the bloomery ; the furnace was never erected ; 
 the grantee failed and the property was sold to others, it was held that 
 there could be no forfeiture for the breach. 
 
 If. the acts relied on as showing a waiver can be referred to any other 
 motive or cause of action, the grantor will not be held to have waived even 
 the right to take advantage of a particular breach, as in Frost v. Butler, 
 7 Greenl. 225, where a farm granted on condition that the grantee should 
 pay certain notes, manage the farm in a husbandlike manner, and deliver 
 to the grantor a certain proportion of the produce thereof The grantor 
 entered for breach of condition, the breach assigned being the non-payment 
 of one of the notes and the mismanagement of the farm, and brought eject- 
 ment. Before the action and after the breach he continued to receive from 
 the grantee the stipulated proportions of the produce. It was held that 
 from such receipt no waiver could be inferred, since the grantor would 
 have the right, as owner of the land, to receive the produce ; and see Rowell 
 V. Jewett, 69 Me. 293. 
 
 A waiver after breach is not necessarily a waiver of the condition, but 
 may be confined to a waiver of the right of entry for the particular breach 
 which has occurred. In Gillis v. Bailey, 21 N. H. 149, the condition was 
 violated by the erection of a certain kind of house ; the grantor gave no- 
 tice to the grantee to remove the same ; nothing more was done until five 
 years afterwards, when a fresh notice to remove was given, it was held that 
 
148 Gray v. Blanchard. 
 
 the right of entry still remained in the grantor, and that he, by his inaction 
 after the first notice, had waived nothing but the right to enforce the con- 
 dition -without giving additional notice to the grantee. 
 
 In order to make the receipt of rent after breach a waiver of the forfeit- 
 ure, the rent must have accrued as well as have been received after the 
 breach, for the principle, of course, is that by the receipt the grantor affirms 
 the estate, out of which the rent issues, to be still in existence, but this 
 affirmance can only relate to the time at which the rent fell due, for if it 
 fell due before the breach of condition, it would have become a debt due at 
 a time when no question as to a forfeiture had arisen, and the grantor 
 would have had a right to receive it then, irrespective of any action he 
 might take with reference to any breach of condition subsequently occur- 
 ring, Jackson v. Allen, 3 Cow. 220 ; Hunter v. Osterhoud, 11 Barb. 33. See 
 also Jackson v. Sheldon, 5 Cow. 448 ; Bleeeker v. Smith, 13 "Wend. 530. 
 
 Where a condition subsequently to its creation becomes impossible it is 
 discharged, Martin v. Ballou, 13 Barb. 119. 
 
 Where by a change in the law or in the statutes of the government, the 
 reason for a condition annexed by the government to an estate created 
 by it, ceases, the condition falls ; as where the colonization laws of Texas 
 required a payment of a certain sum towards the building of churches, as 
 a condition of the estate of a grantee from government, after the revolution 
 of 1836, and the consequent severance of church and State, the land was 
 held to be discharged of the condition, Wheeler v. Moody, 9 Texas 372. 
 
 A breach of condition should be taken advantage of with reasonable 
 promptness, and it is too late to take advantage of a breach when the con- 
 dition has been performed, although the performance has been after the 
 time limited therefor, Wilson v. Gvihrie, 2 Grant 111. 
 
 Eft'ect of Enforcement with Keference to Other Remedies. 
 
 By enforcing a forfeiture a grantor waives his right to an action for 
 damages for breach of covenant accompanying the condition, Underhill v. 
 Saratoga and Washington R. B. Co., 20 Barb. 458 ; and as a general rule 
 where one has chosen to protect himself by a condition, he must look to the 
 remedy given by it alone for the enforcement of performance thereof, for a 
 court of equity will not compel the fulfilment of that in a deed, the non- 
 performance of which works a forfeiture, as said by the Chancellor in Wood- 
 ruff y. Water Power Co., 2 Stockt. (10 N. J. Eq.) 489 : "The grantor has 
 fixed his remedy and can forfeit the estate at his pleasure.'' See also Beck 
 V. Montgomery, 7 How. (Miss.) 39. The case of Spofforth v. Manning, 6 
 Paige, seems, at first sight, to contravene the above rule, but an examina- 
 tion of the facts will show that it was an exceptional case, and that without 
 
Gray v. Blanchaed. 149 
 
 equitable interference there would have been a failure of justice and a hard- 
 ship suffered without any public interest being subserved thereby. In that 
 case there was a devise to two children of the testator on condition that 
 they should confirm a certaia deed by which the testator had conveyed cer- 
 tain land which he held for life, the remainder being vested in the said 
 children. The children entered on the demised premises, and the court 
 decreed that they should execute a release to their father's grantee. 
 
 Equity will never assist in enforcing a forfeiture, Warner v. Bennett, 31 
 Conn. 468 ; Spaulding v. Hallenbeek, 39 Barb. 79 ; Livingston v. Tompkins, 
 4 Johns. C. 415 ; Livingston v. Stickles, 8 Paige 398. 
 
 The rule that equity will not interfere to compel performance where a 
 condition has been created, does not apply in the case of those peculiar con- 
 ditions known as restrictions, for there very frequently a court of equity 
 will enforce a condition even if the grantor and his heirs are not parties to 
 the proceedings, where its power is invoked by those for whose benefit the 
 restriction was made. The reason of this is well stated in Packer v. Night- 
 ingale, 6 Allen 341, by Bigelow, C. J. : "A purchaser of land, with 
 notice of a right or interest in it, existing by agreement with his vendor, 
 is bound to do that which his grantor had agreed to perform, because it 
 would be unconscionable and inequitable for him to violate or disregard 
 the valid agreements of the vendor in regard to the estate of which he had 
 notice when he became the purchaser. In such cases it is true the aggrieved 
 party can often have no remedy at law. There may be no privity of con- 
 tract between himself and those who attempt to appropriate property in 
 contravention of the use or enjoyment impressed upon it by the agreement 
 of their grantor, and with notice of which they took the estate from him. 
 But it is none the less contrary to right that those to whom the estate comes 
 with notice of the right of another respecting it should wilfully disregard 
 them, and, in the absence of any remedy at law, the stronger is the neces- 
 sity of affording in such cases equitable relief, if it can be given consistently 
 with public policy and without violatLag any absolute rule of law." See 
 also GibeH v. Peteler, 38 N. Y. 165 ; Dorr v. Harrahan, 101 Mass. 531 ; 
 Clark V. Martin, 49 Pa. St. 289 ; Toh&y v. Moore, 130 Mass. 438 ; Sanborn 
 V. -Rice, 127 Id. 387. 
 
 Relief against Forfeiture. 
 
 While the rule is inflexible that equity will not interfere to assist a for- 
 feiture, it will often interpose and relieve against one, where there has been 
 no wilful default on the part of the grantee, and where the injury suffered 
 by the grantor, or by whomsoever is entitled to the condition, is compensa- 
 ble in damages or otherwise. This relief is most frequently afforded where 
 13* 
 
150 Geay v. Blanchaed. 
 
 the breach is the non-payment of a sum of money at a time named, San- 
 born V. Woodman, 5 Cush. 36 ; Hancock v. Carlton, 6 Gray 39 ; Carpenter 
 V. Wedcott, 4 E. I. 225 ; Rogan v. Walker, 1 Wise. 527. Relief has also 
 been afforded where the condition was that the grantee should afford main- 
 tenance and support, and a breach had been accidentally made, irreparable 
 damage not having been occasioned thereby, Henry v. Tupper, 29 Vt. 358. 
 
 The Estate of the Grantor after Reentry. 
 
 A question has sometimes been made as to what estate the grantor after 
 reentry for forfeiture is possessed of; and the better opinion seems to be 
 that he is seized as of his original estate. It is true that this position is 
 denied by Etjggles, C. J., in the course of his interesting and instructive 
 opinion in De Peyster v. Michael, 6 N. Y. 467 ; speaking of the right of 
 reentry, the learned judge says : " It is not a reversion, nor is it the possi- 
 bility of a reversion, nor is it any estate in the land. It is a mere right 
 or chose in action, and if enforced the grantor would be in by the forfeiture 
 of a condition and not by reverter." 
 
 The current of authority is, however, the other way. Coke, 202 a, says : 
 " Regularly it is true that he that entereth for a condition broken shall be 
 seized in his first estate or of that estate which he had at the time of the 
 estate made upon condition," and states certain exceptions to the rule on 
 account of impossibility, as where the reverter is to one seized in right of 
 a wife who has died before breach — of necessity, as where a cestui que use 
 prior to the statute of uses had made a feoffment and had entered for con- 
 dition broken — or with regard to certain collateral qualities. This is recog- 
 nized as the law on this side of the Atlantic in The Proprietors of the' Church 
 in Brattle Street v. Grant, 3 Gray 142. Bigelow, J., said : " A grant of a fee 
 on condition only creates an estate of a base or determinable nature in the 
 grantee, leaving the right or possibility of reverter vested in the grantor." 
 See also Hershman v. Hershman, 63 Ind. 451 ; Scott v. Stipe, 12 Id. 74. 
 
 It follows from the above position that any lien upon or right obtained 
 by a third party in an estate held subject to a condition will be destroyed 
 upon a reentry by the grantor for a breach of condition, Moore v. Pitts, 53 
 'N. Y. 85 ; and a grantor is under no obligation to regard any supposed 
 rights which a creditor of the grantee has acquired in the conditional estate. 
 Thus in a case where, in April, 1857, a creditor of the grantee of an estate 
 on condition made a levy on the estate, and in May of the same year the 
 grantor formally entered for condition broken, and in 1859 took actual 
 possession of the premises, it was held that there being no evidence of col- 
 lusion between the grantor and grantee, the creditor acquired no right 
 as against the former, Thomas v. Record, 47 Me. 500. 
 
Conditional Limitations. 
 
 DEN EX DEM. ANN SMITH, HILL SMITH AND THOMAS 
 SMITH V. JOHN HANCE AND ISRAEL HANCE. 
 
 Supreme Court of Neiv Jersey, February Temi, 1830. 
 
 [Reported in 6 Halsted 244.] 
 
 Ann Smith devised to John Smith a plantation and tract of woodland, dur- 
 ing his natural life, and after his death, to such of the lawful issue of 
 the body of the said John Smith, as should arrive to the age of twenty- 
 one years, and to the survivor of such issue ; provided that the said 
 John Smith should convey, by a good and sufficient conveyance in law, 
 unto Israel Smith, the son of Hill Smith, all the right and title of him 
 the said John Smith, to the real estate of his father. Hill Smith ; and 
 provided also, that the said John Smith should release to her executors 
 all accounts, charges and actions against her or her executors ; and 
 should release also all actions against the said Israel Smith above named ; 
 and in case the said John Smith should refuse to make such conveyance 
 to the said Israel Smith, or to execute such releases to her executors and 
 to the said Israel Smith, then this devise to be void, and in that case she 
 devised the said plantation and tract of woodland to the said Israel 
 Smith and the heirs of his body. John Smith died in the lifetime of 
 the testatrix, leaving three children all under age, and without making 
 any conveyance to Israel, of the real estate of his father and without 
 executing any release of his pecuniary demands against the testatrix 
 and Israel Smith. 
 
 The condition of the devise to John, not having been performed, the devise 
 to him and his issue failed, and the devise' over to Israel was a good 
 devise, and took effect. 
 
 Where words of condition are used in connection with a devise, and there 
 is another or subsequent devise of the same premises, on failure of the 
 first or preceding devise ; the words of condition are not strictly con- 
 sidered as such, or rather have not the force and operation of words of 
 condition, and are called words of limitation. 
 
 When a devise is made after a preceding executory or contingent limitation, 
 or is limited to take effect, on a certain condition annexed to any pre- 
 ceding estate, if that preceding or contingent estate should never arise 
 
 151 
 
152 Smith v. Hance. 
 
 or take effect, the remainder over will nevertheless take place, the first 
 estate being considered only as a precedfng limitation, and not as a 
 preceding condition to give effect to a subsequent limitation. 
 
 B. Thompson, Jeffers and Wood, for the plaintiff; cited 1 Vez. 423 ; 
 Cruise, Tit. 13, Ch. 2, Sec. 14, 15 ; Peyton v. Berry, 2 P. W. 626, 783 ; 
 2 Atk, 16 ; 3 Burr. 1624; 5 Mass. Kep. 526. 
 
 Dayton and Wall, for the defendants, cited Cruise, Tit. 13, Ch. 1, 
 Sec. 15. Ibid. Tit. 16, Ch. 2, Sec. 29, 30. Ibid. Tit. 38, Ch. 20, Sec. 11, 
 17; Com. dig. devise N. 10; 1 Vez, 420; 2 Fearne 392, 453. 
 
 Opinion of Chief Justice. 
 
 Ann Smith, late of the county of Salem, at the making of her "will 
 on the 17th of April, 1818, was the owner of a plantation in the town- 
 ship of Mannington in that county. She had then living a son, John 
 Smith, and a grandson, Israel Smith, the son of her son Hill Smith, 
 who had previously departed this life. Her son John Smith was then 
 the owner of a farm in the township of Elsinborough, and had pecu- 
 niary demands against his mother and also against the said Israel Smith, 
 his nephew. Ann Smith, by her will devised among other things as 
 follows : " I give and devise unto my son John Smith, all that planta- 
 tion situate in the said township of Mannington, on which the said John 
 Smith now resides ; and also, twenty-five acres of woodland situate in 
 the said township, adjoining lands of Jediah Allen and Samuel Allen, 
 during his natural life ; and after his death I give and devise the said 
 plantation and tract of woodland to such of the lawful issue of the body 
 of the said John Smith, as shall arrive to the age of twenty-one years, 
 and to the survivor of such issue ; and for the want of such issue, I 
 give and devise the said plantation and tract of woodland in fee to 
 Joshua Smith, Powell Smith, and Mary Smith, wife of Merriman Smith, 
 Esq. and to their heirs forever : Provided that the said John Smith shall 
 convey, by a good and sufficient conveyance in law, unto Israel Smith 
 the son of Hill Smith and my grandson, all the right and title of him 
 the said John Smith, to the real estate of his father Hill Smith, and 
 which was laid off to the said John Smith in the division of the real 
 estate of his father, by order of the Orphans' Court of the county of 
 Salem [being the above mentioned farm in Elsinborough,] and provided 
 also, that the said John Smith shall release to my executors hereinafter 
 
Smith v. Hange. 153 
 
 named, all accounts, charges and actions against me or my executors : 
 and shall also release all actions against the said Israel Smith, above 
 named ; and in case the said John Smith shall refuse to make such con- 
 veyance to the said Israel Smith, or to execute such releases to my exec- 
 utors, and to the said Israel Smith, then this devise to be void, and in 
 that case I give and devise the said plantation and tract of woodland to 
 the said Israel Smith and to the heirs of his body, and for want of such 
 heirs, to the aforesaid Joshua Smith, Powell Smith and Mary Smith, 
 wife of said Merriman Smith." The testatrix lived until 22d Decem- 
 ber, 1825. In the mean time, however, in May 1820, her son John 
 died, leaving three children, the eldest of whom is yet under the age of 
 twenty-one years. No conveyance was made by John in his lifetime 
 to Israel, of the Elsinborough plantation ; nor was any release of the 
 pecuniary demands executed ; but the plantation on the decease of John 
 descended to and is now held by his children ; and after his decease, 
 his administrator sued for and recovered those demands from Ann and 
 Israel respectively. The contents of the will were unknown to John 
 and to his children, during the life of the testatrix. 
 
 The children of John, who are the lessors of the plaintiff, insist the 
 devise of the Mannington plantation has failed, not only as to John, 
 but also as to Israel ; that the plantation has descended therefore, to the 
 heirs of the testatrix ; and that in the character of heirs they are now 
 entitled to recover one moiety of it from Israel, who was in possession 
 q,t the commencement of this action. If such is the legal result, the 
 intention of the testatrix is certainly frustrated ; for the slightest in- 
 spection of the will shows she did not design that John or his children 
 should have payment of the pecuniary demands, and the farm in Elsin- 
 borough, and one-half the farm in Mannington ; nor that Israel should 
 be compelled to pay the pecuniary demands against him, and be left 
 with half only of the latter farm and without any portion of the former. 
 On the contrary, her wish was that the pecuniary demands should be 
 extinguished ; that John, and after him, his issue, should have the plan- 
 tation in Mannington, and Israel, that in Elsinborough ; and if this 
 disposition did not take effect, she intended that Israel and the heirs of 
 his body should have the plantation in Mannington. 
 
 Our duty then is, to examine whether the intent of the testatrix ac- 
 cording to the provisions of the will, and the events which have occurred, 
 can, consistently with the rules of law, be accomplished. Upon looking 
 
154 Smith v. Hance. 
 
 into the will we find a devise of the premises in question to John, and 
 afterwards to his issue, and also a devise of the same premises to Israel 
 and the heirs of his body. The devise to John was conditional, not 
 absolute. The devise to Israel was to take eifect in case the devise to 
 John did not become absolute, or, in the language of the will, became 
 void. The disposition intended in the devise to John, was first, if ever, 
 to take effect ; and if it did, and became absolute, the devise over to 
 Israel could never come into existence. The devise to John, was con- 
 ditional. The devise to Israel, however, was not connected with, or 
 dependent upon that condition, except as it served to control the devise 
 to John. The failure of performance of that condition while it would 
 defeat the estate to John and the others connected therewith, that is, to 
 his issue, and for want of such issue, to the three Smiths, would not 
 defeat the estate to Israel. On the contrary, the non-performance of 
 the condition, causing the failure of the devise to John, would give rise 
 to the contingency on which the devise to Israel was to take effect. The 
 condition was not connected with all the clauses of the will, so that a 
 failure of performance should alike operate on and defeat all, but was 
 connected with certain of the clauses, and a failure operating on and 
 defeating them, would clear the way for the existence of the rest. The 
 estate to the issue of John, and for the want of such issue, to the three 
 Smiths, is, like the estate to John, dependent on the condition. The 
 condition unfulfilled, the devise to the issue and to the three Smiths 
 must fail as well as the devise to John. Suppose John living, and the 
 correctness of this position is very manifest. His non-performance 
 would defeat the estate to him and those immediately dependent on it, 
 but not the devise to Israel, which indeed such non-performance was to 
 call into action. 
 
 Such being the nature of the will, it remains to inquire what effect 
 is produced by the events which have occurred. John Smith, the first 
 named devisee, died in the lifetime of the testati'ix. He made no 
 conveyance or release. His children are under age. They can make 
 no conveyance, even if a conveyance by them would be of any avail. 
 The condition of the devise to John, has not been performed and cannot 
 be performed. The devise to him and to his issue fails. And the ques- 
 tion is, whether the devise over to Israel also fails or now takes effect? 
 The intent of the testatrix, under such circumstances, cannot I think 
 be mistaken. Her wish was, that John should have the Mannington 
 
Smith v. Hance. 155 
 
 farm and Israel that in Elsinborough, and that the pecuniary demands 
 should be released ; and it is equally clear and certain that she intended 
 that neither the whole nor any part of the Mannington farm, should go 
 to John or his issue, unless the conveyance of the other farm was made 
 and the releases executed, unless the Elsinborough farm became the prop- 
 erty of Israel and the pecuniary demands were extinguished ; and that she 
 designed Israel to have the Mannington farm in case he did not obtain 
 the other, and a discharge of the claims which John had against him. 
 
 In order to resolve the question proposed, let us in the first place, 
 examine the nature of the estates created by this devise. 
 
 Where words of condition are used in connection with a devise, and 
 there is another or subsequent devise of the same premises on the failure 
 of the first or preceding devise, the words of condition are not strictly 
 considered as such, or rather have not the force and operation of words 
 of condition, and are called words of limitation. The design of this 
 rule is to subserve the intent of the testator. For if they were, under 
 such circumstances, considered words of condition strictly, the intent 
 would be liable always to be defeated, if the second devisee was not the 
 heir at law. By another rule, no person except the heir at law, can 
 enter for or enforce, a breach of a condition. And by another rule, the 
 estate, standing on condition, does not cease on the breach of the con- 
 dition, but on the entry, or at sometimes the claim, of the heir at law. 
 Hence if the words were deemed words of condition, the second devise 
 might fail if the heir at law did not think proper to enforce the breach 
 of the condition, and to enter or claim, and put an end to the estate. 
 The condition might fail or be broken, and yet contrary to the intent 
 of the testator, the subsequent devise, from the omission or refusal to 
 act of the heir at law, might not take effect. Thus if a fai-m was de- 
 vised to A. on condition that in one year he should build an house upon 
 it, the heir at law only could enter for a failure ; and the estate of A., 
 though no house were built would continue until he did enter. But if 
 the land were given to B., not being the heir at law, in case the house 
 was not built, the land, on failure to build, would at once vest in B. 
 without any act to be done by the heir at law. In the one case, the 
 words are called words of condition, and in the other, by reason of their 
 connection, words of limitation ; and the estate, which in the one instance 
 is called, an estate upon condition, is in the other called, an estate upon 
 conditional limitation. 
 
156 Smith v. Hance. 
 
 Thus in a case like the present, if the words annexed to tlie first 
 devise are deemed words of condition, the second devise would depend 
 not merely on the performance or failure of the condition, but on the 
 will and pleasure of the heir at law, for if he did not think proper to 
 enter, the second devise would not take effect. But as they are deemed 
 words of limitation, the concurrence of the heir at law is not needed, 
 and the estate, on breach or failure of the condition, at once vests in the 
 devisee. 
 
 Carrying our view of the present case somewhat farther, we shall dis- 
 tinctly perceive the propriety of the rule which thus, under different 
 circumstances^ gives a different construction to even the same words; 
 and how essential it is to secure, and how effectually it does secure, the 
 intention of the testatrix. The conclusion is irresistible, as well from 
 the very language as from the structure of the will, that she designed 
 the Mannington farm should go to Israel in case John did not make 
 the conveyance she wished of the Elsinborough farm. She did not 
 intend he should have the liberty of choice to make or refuse the con- 
 veyance, and besides, if heir at law, to have the power to enforce or 
 waive the breach of the condition ; first to refuse to convey, and then 
 to refuse to enter for want of conveyance. She intended .the devise to 
 Israel should vest on the refusal to convey, not on a subsequent act of 
 John himself, taking advantage of or enforcing against himself the 
 breach of the condition. Yet if these are words of condition only, John 
 may refuse to convey, and then by refusing to enter, prevent the subse- 
 quent devise to Israel from taking effect ; which result he can by no 
 means produce, when the words are construed words of limitation ; for 
 then on his breach or non-performance of the condition, the estate vests 
 in Israel, and he may enter. 
 
 Upon the argument at the bar, it was insisted that this devise cannot 
 contain a conditional limitation, because the condition imposed upon 
 John is in its nature precedent; he must, it was said, convey and release 
 before the estate could vest, and a conditional limitation depends on a 
 condition subsequent ; a condition to defeat an estate once vested. I do 
 not find this distinction recognized in the books ; on the contrary. Bur- 
 row reports Lord Mansfield to have said, that the case of Porter v. Fry, 
 1 Ventr. 202, which will hereafter be more particularly stated, was a 
 condition precedent, and therefore, the estate never vested; 4 Burr. 
 1938. And moreover, the reason on which the rule for construing words 
 
J* 
 Smith v. Hance, 157 
 
 of condition to be words of limitation, is founded, seems to apply with 
 equal force to both kinds of condition. Such construction is made to 
 prevent the heir, who alone can act under a strict condition, from defeat- 
 ing the devise over by refusal to enter or claim for breach or non-per- 
 formance. Now, in both cases, the devise over would be equally defeated, 
 if the heir refused to enter or claim. And hence the rale, formed in 
 order to prevent such result in the one instance, ought also to be in force 
 in the other. But it is not necessary to pursue this inquiry or to resolve 
 it ; for it will be seen hereafter, in a leading and unshaken case, that 
 words of condition, like the present, have been construed to be words 
 of limitation, and effect has been given to a devise over, though the 
 condition was unperformed, because events rendered it impossible. 
 
 It was farther argued on the part of the defendant's counsel, that the 
 right of choice to make or refuse the conveyance, was intended to be 
 personally exercised by John ; to be a personal consideration with him ; 
 in other words, that the disposition to be made of the farms was to 
 depend on his preference and selection ; and that as he died in the life- 
 time of the testatrix, and before he could be called to make the choice, 
 the subsequent devise which was to depend on his refusal, is now impos- 
 sible, and cannot take effect, and the Mannington farm must therefore 
 descend to the heirs at law. This argument assumes for its basis, a 
 confidence in John, or an intention in his favor, much beyond the lan- 
 guage of the will. The testatrix designed to produce a certain dispo- 
 sition of the real estate, which she has mentioned ; the Mannington farm 
 to John, the Elsinborough farm to Israel. Such only was her real aim. 
 This disposition could not indeed be brought about, unless John thought 
 proper to make the conveyance. She could not deprive him of his right 
 to refuse. But she meant to confer upon him no power or authority, 
 to add nothing in this respect. The condition was framed and annexed 
 to the devise, not for the benefit or gratification of John, but simply to 
 produce the disposition which she desired. 
 
 This argument also assumes an undue influence to the phrase, " in 
 case the said John Smith shall refuse." The term refuse, as here used, 
 is explained by the context, is no more than a repetition of the condition, 
 and is not designed to restrain or enlarge, or in any wise to alter it, and 
 means only a failure to convey and release. In Taylor v. Mason, 9 
 Wheat. 344, Chief- Justice Marshall says the words " refusing to com- 
 ply," may in general have the same operation in law as the words " fail- 
 14 
 
158 Smith v. Hance. 
 
 ing to comply ;" and he lays down this rule of construction, "Where 
 the condition to be performed depends on the will of the devisee, his 
 failure to perform is equivalent to a refusal." 
 
 But whatever opinion may be entertained of the design of the testa- 
 trix to vest in John a right of choice, it must be conceded that such 
 intent was of a subordinate or secondary character, a particular intent, 
 as it is sometimes denominated. The general or paramount intent was, 
 that Israel should have the Manningtonfarm, if he did not obtain the 
 other and a release or extinguishment of the claims against him. 
 
 The truth, however, is, and so it will appear in the sequel, that this 
 argument, and the result of it, are of little importance, inasmuch as the 
 effect of this devise, and the determination of the present controversy, 
 do not turn upon the inquiry here raised. We are now brought to the 
 consideration of one of the most important and influential topics in this 
 cause. What is the legal consequence in case of such limitations by 
 will, of the decease of the first devisee, or him by whom the condition 
 was to have been performed, in the life of the testatrix ? Do both de- 
 vises, first and second, fail? Or does the first only fail, and the second 
 take effect? In Holcroft's case, Moore 486, there was a devise to the 
 use of the first son of Sir John Holeroft in tail, and so to the second, 
 third, and fourth sons successively, and if the said fourth son should 
 happen to die without issue, remainder over to Hamlet Holeroft, and 
 divei-s limitations over. Sir John Holeroft never had but one son. The ~ 
 question was, whether the subsequent uses could arise ? The court held 
 that they coxild, for the words amount to no more than a limitation of 
 the estate, and are not a condition precedent to the estate of Hamlet. 
 In Scatterwood v. Hdge, 1 Salk. 229, the devise was to trustees for a term 
 of years, then to the first and other sons of A. successively in tail male, 
 provided the said sons should take on them the surname of the devisor ; 
 and in case they or their heir or heirs should refuse to take his name or 
 die without issue, then to the first son of B. in tail male, provided he 
 took the surname. A. had no son at the time of the devise, and died 
 without issue ; B. had a son living, who took the name of the devisor. 
 It was held that the devise to A. was not a condition precedent to the 
 devise to B., which failing, all must fail, but a precedent estate attended 
 with limitations, and that the devise to B. took effect. 
 
 In Williams v. Fry, 1 Ventr. 199, Raymond 236, the testator devised 
 an house to his wife for life, and after her death to his granddaughter, 
 
Smith v. Hance. 159 
 
 the defendant, and the heirs of her body ; Provided always, and upon 
 condition that she married, with the consent of certain named persons, 
 and in case she married without snchi consent, or happened to die with- 
 out issue, then to his grandchild, the lessor of the plaintiff, and his heirs 
 forever. The granddaughter married at the age of fourteen years, 
 without such consent, and without notice of the will, until after her 
 marriage. The court held, that though the word condition was used, 
 yet, limiting a remainder over, made it a limitation, for so it was plain 
 the testator meant; and that notice of the condition or will was not 
 necessary ; and judgment was rendered for the plaintiff. In Jones v. 
 Westeomb, Prec. Ch. 316, a testator devised to his wife for life, and after 
 her death to the child of which she was then enceinte, and if the child 
 died before it came to the age of twenty-one, then he devised one-third 
 part to his wife, and the other two-thirds to other persons. The wife 
 was not enceinte, and so the contingency on which the devise over was 
 to talte place, never happened. Yet it was held that the devise over 
 was good. Lord Mansfield speaking of this case in 3 Burr, 1624, says, 
 " the intent, though not expressed, must be construed to give the estate 
 to the substitute, unless a posthumous child lived to be of age to dispose 
 of it. Consequently, no posthumous child having ever existed, the 
 substitute was entitled." In the case now before us, the intent is equally 
 strong to give the Mannington plantation to the substitute, Israel, unless 
 a conveyance and releases were made. Consequently, no conveyance or 
 release being made, the substitute is entitled. Andrem v. Fulham, 2 Str. 
 1092, 1 Vez. 421, was an ejectment which depended on the same clause 
 of the will on which arose the case in Chancery of Jones v. Westeomb. 
 The Chief Justice said the objection was, that no such person ever ex- 
 isted, and, consequently, those who claim in remainder on the dying of 
 such person under twenty-one, and without issue, can never enjoy the 
 estate. But he said it was no unusual thing for words of condition to 
 be taken as words of limitation, where there was a remainder over ; that 
 it was an executory limitation, which are all on some contingency on 
 the failure of a preceding limitation, and none of them takes in all the 
 ways of failing, yet it was the same thing. The devise over was held 
 good by the court. GuUiver v. Witchett, 1 Wils. 105, was on the same 
 will. The court said, whether the limitation to the child never took 
 effect, or whether it did and was determined, is the same thing ; as the 
 remainder to the child never could take place, the next devise over must 
 
160 Smith v. Hance. 
 
 take effect. In Stratham v. Bell, Cooper 40, the testator having a daugh 
 ter, and supposing his wife enceinte, devised, if a son, to him at twenty- 
 one years of age, and if a daught^ pne moiety to his wife, and the other 
 to his two daughters at twenty-one ; and if both died before that time, 
 both their shares to his wife and her heirs. The testator died, his wife 
 was not enceinte, and the daughter died under age, and without issue. 
 The question was, if the wife should take the whole? On the part of 
 the plaintiff, it was insisted, that the wife should not take but on the 
 condition expressed in the will, the birth of a second daughter, and the 
 death of both without issue, which condition was not performed, and 
 therefore she could not be entitled. But the court held it was the plain 
 intention of the testator that in case no son should be born, and he 
 should have no daughters who should live to the age of twenty-one 
 years, that the wife should have the whole estate and in the event which 
 had happened, she was so entitled. In the case before us, it seems to 
 be the plain intent of the testator, that if the farm in Elsinborough was 
 not conveyed to Israel, and the pecuniary demands extinguished, he 
 should have the farm in Mannington. The cases which thus far have 
 been reviewed, are, from the principles established by them, important 
 in the present inquiry. The case ofAvelyn v. Ward, 1 Vez. sen. 420, is 
 more directly in point. It was thus : Serjeant Urling devised his real 
 estate to his brother Goddard Urling, and his heirs, on condition that 
 within three months after his decease, he should execute and deliver to 
 his trustee a general release of all demands. , But if his brother should 
 neglect to give such release, the said devise to him should be null and 
 void ; and in such case he devised the real estate to Richard Ward, his 
 heirs and assigns. Goddard Urling, the first devisee, who was also the 
 heir at law of the testator, died in his lifetime. The chancellor held 
 that the devise over, and the contingency on which it was given, was to 
 be considered a conditional limitation ; that it was to be construed accord- 
 ing to the sense and intention of the testator that if in any event the 
 first could not take place, the subsequent should ; and that the substance 
 of this was the intent of the testator, that if no such release was exe- 
 cuted whereby tjie demand against his estate would exist, the estate 
 should go over. And he held that the land should not descend to the 
 heir at law, but go to the devisee over. This case, in all its leading 
 features, was like the case now before us. In both, the first named 
 devisee was an heir at law. To both devises a condition was annexed, 
 
Smith v. Hance. 161 
 
 requiring an act to be done by the devisee ; in the one, the time within 
 which the act should be done, was expressly limited to three months 
 after the decease of the testator ; in the other, although no express time 
 is limited, yet some time after the decease is necessarily allowed, and the 
 law will require that it should be of reasonable length ; and as in both 
 cases, after the decease of the testator, some time is requisite, the prin- 
 ciple as to each must be the same. The devise to Goddard Urling was 
 a fee-simple ; the devise to John, with the others dependent on it, is 
 equivalent. There was in each a devise over, and in both, the devisee 
 died in the lifetime of the devisor. In delivering his opinion, the 
 chancellor. Lord Hardwicke, said, he knew no case of a remainder or 
 conditional limitation over of a real estate, whether by way of particu- 
 lar estate, so as to leave a proper remainder, or to defeat an absolute fee 
 before, by a conditional limitation ; but if the precedent limitation, by 
 what means soever is out of the case, the subsequent limitation takes 
 place. 
 
 The effect in the present instance, of the decease of John Smith, the 
 first devisee, is very clearly shown in the general rules laid down by 
 Fearne and by Preston, in their elaborate and distinguished works. I 
 have thought it more satisfactory to recur to some of the leading cases, 
 than to content myself with a reference to these elementary treatises. 
 Fearne says : Where a devise is made after a preceding executory or 
 contingent limitation, or is limited to take effect on a condition annexed 
 to any preceding estate, if that preceding or contingent estate should 
 never arise or take effect, the remainder over will nevertheless take 
 place ; the first estate being considered only as a preceding limitation, 
 and not as a preceding condition to give effect to a subsequent limita- 
 tion. Fearne Cont. Eem. 399. Preston says : The limitation over will 
 be considered to give an estate to commence in possession as soon as the 
 interest previously limited shall be removed, by either failing of effect 
 or by taking effect and afterwards determining, as often as the intention 
 calls for this construction, although the contingency which is expressed 
 merely provides for the determination of the interest under the former 
 gift. Prest. on Estates 87. 
 
 Upon the whole, I am of opinion, the devise over to Israel was a 
 good devise, and took effect; and that on this special verdict, judgment 
 should be rendered for the defendant. 
 14* L 
 
162 Smith v. Hance. 
 
 Opinion of Ford, J. 
 
 This is a devise made to John Smith, who was the son of the testa- 
 trix, for the term of his natural life, upon condition that he conveys 
 his estate at Elsinborough, to her grandson Israel Smith ; and if he 
 does not comply with the condition, the devise to him is to be void. 
 This must necessarily be construed a precedent condition, to be per- 
 formed on the part of John, before the estate devised can vest in him, 
 otherwise he would hold both estates at the same time, contrary to the 
 intent of the testatrix, who evidently meant, that he 'should take one 
 estate in lieu of the other, but not both together. If he conveys the 
 one estate to Israel, the other vests in him by the devise, eo instanti, and 
 he never has both estates ; but if the devised estate vests in him first, 
 he will certainly have both, until he makes a conveyance of the other, 
 be the time longer or shorter ; whereas it is the plain intent of the will 
 that he should never have both the estates for any length of time what- 
 ever, and therefore it is necessarily a condition precedent, to be performed 
 before any estate can vest in John under this devise. I found this con- 
 struction on the evident intent of the will, under that great rule so fully 
 settled in the books, that a condition is to be construed precedent or 
 subsequent, as the intent of the testator may require. Cruise, Tit. 13, 
 Ch. 1, Sec. 10. 
 
 Taking it then to be a condition precedent, we are next to consider 
 whether the condition is to be restricted to John's estate, or extend to 
 that of the issue of his body likewise. If this were the devise of an 
 estate of inheritance to John and the issue of his body, the issue would 
 necessarily be affected by the condition, for if no estate vested in the 
 ancestor, there would be none for the issue to inherit from him. But 
 instead of being an estate tail to John, it is a strict estate for his life, 
 and the issue are not to take as heirs, at his death, but the limitation 
 after his death is made " to such of the lawful issue of his body as shall 
 arrive to the age of twenty-one years ;" that is, to certain persons, not 
 by name, but by description, who shall take the estate after his death, 
 on condition they arrive to the age of twenty-one years, which persons 
 are not to take the estate by descent, but by purchase. But the con- 
 dition affects the estate of the issue, clearly, as I apprehend, upon a dif- 
 ferent ground. If John does not convey to the grandson, the failure 
 draws after it this consequence,' that he is not only to lose the estate 
 under the will, but the same is expressly limited over to the grandson, 
 
Smith v. Hance. 163 
 
 and the issue of John are as necessarily precluded as if the testatrix had 
 shut them out by express words. If the issue of John could take this 
 estate, they would not only defeat this plain limitation in the will to the 
 grandson, but he would obtain neither of the estates, when it is the most 
 evident intent of the testatrix that if he could not have one he should 
 have the other. It was not to be expected that John would give up the 
 one estate, which he held in fee-simple, for a mere life estate in the 
 other, unless she spread before him the additional motive of benefiting 
 his issue ; and therefore if he did not comply, she took the estate away 
 from him and his issue, in the most direct manner possible, by a limita^ 
 tion of it over to her grandson. The will is so drawn as that the non- 
 performance of the condition should defeat the estate otherwise intended 
 for John's issue, as well as himself, by carrying the estate over to the 
 grandson by an express limitation in case of failure ; and therefore the 
 condition is annexed to and afiPects the issue, as well as their father. 
 
 But John died by the act of God, in the lifetime of his mother, 
 whereby the performance of the condition on his part became impossi- 
 ble, and it was argued, in the first place, that as the act of God works 
 injury to no one, so it ought not to destroy the estate of John's infant 
 and innocent issue ; and secondly that if a condition become impossible, 
 the non-performance of it is excused in law. But the act of God cannot 
 properly be said to destroy the estate of the innocent issue if they had 
 no estate vested in them, and that they had, is the point first to be made 
 out. If the question is whether the act of God will give them this 
 estate without its being given by the will, the question readily answers 
 itself in the negative, for it is the will that must give the estate if any 
 is to be given. The meaning of the maxim is no more than that, where 
 the will has given an estate, the act of God will not take it away. 
 
 Then as to the performance of the condition being excusable in law, 
 by its becoming impossible through the death of John, before his mother, 
 the law is well settled that if an estate already vested in a person, is to 
 cease unless he perform a certain act by a given time, and the act be- 
 comes impossible before the time arrives, it excuses the performance ; 
 so that the party shall not lose his estate. Such is a condition subse- 
 quent, for divesting an estate which the party has in him. But if it be 
 a condition precedent to be performed in order to acquire an estate, the 
 performance whereof becomes impossible by the act of God or otherwise, 
 the party acquires no estate. The words of Co. Lit. 206 a. are these : 
 
164 Smith v. Hancb. 
 
 "And so it is in case of a feoffment in fee, with a condition svAsequmt 
 thai is impossible, the estate of the feoffee is absolute ; but if a condition 
 precedent be impossible no estate or interest shall grow thereon." Now 
 we have shown this to be a condition precedent, and the consequence of 
 its not being performed is that neither John nor his issue acquired the 
 estate. 
 
 We have thus far considered this a condition in law, in order to ascer- 
 tain whether it affects the estate of the father only, or of him and his 
 issue also ; and likewise to determine whether it be a condition prece- 
 dent or subsequent, and the consequences either way ; which principles 
 remain applicable to the case, although it should not be strictly a con- 
 dition in law. And such it certainly cannot be. It is a settled rule of 
 law that none but the heir can enter and take advantage for a condition 
 broken. Cruise, Tit., Ch. 1, Sec. 17. Now the consequence of holding 
 this to be a condition is, that if John had survived his mother, and 
 actually refused to convey, he being an heir, must have entered on him- 
 self for his own default. Moreover, he would have proiited by his own 
 neglect, losing thereby merely an estate for life, but acquiring in lieu 
 of it an estate in fee-simple in a moiefy of the very lands, which by the 
 intent of the will, he was never to touch, unless he conveyed the other 
 estate to the grandson. It would therefore be in utter destruction of 
 the will to construe this into a strict condition. But there is, if possible, 
 a still stronger objection arising out of another inflexible rule of law, 
 that a condition to be good, must defeat the whole estate, so that the 
 heir may enter and avoid them all ; and construing this into a condition 
 would be repugnant to the will in> two important particulars, for first, 
 it would defeat the whole limitation over to the grandson, and secondly, 
 it would give to John and his heirs a moiety of that very estate in which 
 they were to have nothing, unless he performed the precedent conditions. 
 It is contrary therefore to the drift, intent and scope of the whole will, 
 to construe this as a condition, and there is no necessiiy obliging the 
 court to do so, it being a perfectly well settled rule, that the law 
 will construe it to be a condition or a limitation, as will best subserve 
 the intent of the testator. Thus in Avelyne v. Ward, 1 Vez. 420, Lord 
 Hardwicke said, "We are bound to make such a construction as to make 
 good the plain intention of the testator." So Cruise, Tit. 16, Ch. 2, Sec. 
 30 : " It has long been settled, that where, in a devise, a condition is 
 annexed to a preceding estate, and upon the breach or non-performance 
 
Smith v. Hancb. 165 
 
 thereof, the estate is devised over to another, the condition shall operate 
 as a limitation," etc. " and limitations of this kind are properly called 
 conditional limitations." This distinction is all-important between a 
 condition and a limitation ; under the former of which, the heir would 
 enter for non-performance and defeat the intent of the testator, and 
 every estate in the premises provided for in the will ; whereas under 
 the latter, in case of non-performance, the limitations go successively 
 into execution, and thus the intent of the will is carried into effect. If 
 John had lived and failed to convey the estate at Elsinborough, it would 
 have remained to him and his heirs, and the grandson would have taken 
 this estate by force of the limitation to him, as the testatrix evidently 
 intended. Nothing can be plainer than that this was intended to be a 
 limitation for the benefit of the grandson, and not a condition for the 
 benefit of the heir. I am of opinion therefore, that the lessoi-s of the 
 plaintiff who are the children of John, have no title to the premises in 
 question, and that the verdict and judgment must go for the defendant. 
 
 Opinion of Drake, J. 
 
 By the will of Ann Smith, the premises in question are devised to 
 her son, John Smith, " during his natural life ;" and after his death, 
 " to such of his lawful issue as shall arrive at the age of twenty-one 
 years, and to the sm-vivor of such issue ;" and " for the want of such 
 issue," in fee, to Joshua Smith and othei-s : Provided, first, that the 
 said John Smith should convey to Israel Smith certain lands (described 
 by the testatrix) ; secondly, that John Smith shoulji release to the exec- 
 utors of the testatrix all demands against her estate ; and thirdly, that 
 he should release to Israel Smith, all actions against him. And in case 
 the said John Smith should refuse to make such conveyances and 
 releases, then " this devise to be void ;" and in that case the said prem- 
 ises are devised to the said Israel Smith and the heirs of his body. 
 
 John Smith died in the lifetime of the testatrix, and the conditions 
 connected with the first set of devises, have not been performed. 
 
 The estates made subject to those conditions, necessary to be noticed 
 in deciding this cause, are, 
 
 1st. A life estate, to John Smith. 
 
 2d. A fee-simple, to such issue of John as should arrive at the age 
 of twenty-one years. 
 
 Although there be no words of inheritance, yet this estate is a fee- 
 
166 Smith v. Hance. 
 
 simple, as well from the intent of the testator, manifest on the face of 
 the will, as from the statute of New Jersey on this subject. Rev. Laws, 
 p. 60. And as it is not immediately connected with, and made to vest 
 upon the termination of the life estate of John Smith, but can vest only 
 on a future contingency, before which the life estate has in fact termi- 
 nated, it is not good as a remainder, and is sustainable only as an exec- 
 utory devise. Fearne on Remainders, 397, 8 ; 2 Croke 590. 
 
 This is also the nature of the estate tail to Israel, it being limited to 
 take effect after a fee-simple. 
 
 The tenant in possession holds under Israel Smith. The lessors of 
 the plaintiff are children of John Smith, both now under the age of 
 twenty-one years. 
 
 The lessors seek to recover as heirs at law. And they insist, in the 
 first place, that if the conditions, annexed to the first set of estates, are 
 conditions precedent, then these conditions not having been performed, 
 and now, since the death of John Smith, not possible to be performed, 
 aU the estates devised are gone, and they are entitled to the premises as 
 heirs at law. Or, in the second place, if the conditions be subsequent, 
 then, performance having been rendered impossible, by the act of God, 
 the estates dependent upon those conditions, are freed from them, and 
 have become absolute. And, although the executory devise to the issue 
 of John is good, yet until some of such issue shall arrive to the age of 
 twenty-one years, the land must descend to the heirs at law, and is now 
 accordingly vested in themselves. 
 
 As to the first prqJesition, that is, that if these be conditions precedent, 
 and now, by the act of God, impossible to be performed, so that the con- 
 ditional estates cannot vest, the heirs shall have the property ; I think 
 it erroneous. This would be the effect of a strict condition at the com- 
 mon law, because none but the heir could take advantage of the breach. 
 But in case of a further limitation of the estate, upon breach of the con- 
 dition, this construction would so evidently oppose the design of the 
 grantor, that the courts have long been in the habit of construing such, 
 as conditional limitations ; and if ever the intent of a devisor could ope- 
 rate to give that construction to a devise, it should in this case. Here, 
 estates are given to the heir at law, and his issue, (now heirs at law) 
 upon condition, that they confer an important benefit upon another 
 object of the testator's bounty, her grandson, Israel Smith ; and if they 
 do not, then the estate to go to that grandson. But if the breach of the 
 
Smith v. Hance. 167 
 
 , condition would defeat all the subsequent estates created by the will, in 
 the same lands, John Smith and his children, would be more benefited 
 by breaking than performing the condition, and the intent of the testa- 
 trix would be frustrated. But the contrary principle is now too firmly 
 settled to admit of dispute. It is laid down in Comyn's Digest, Title 
 Condition T, " If a man by will devises land to his heir, upon condition 
 that he pays, or does such an act, etc., and for non-payment, etc., devises 
 it over; this shall be taken as a limitation, though there are express 
 words of condition ; for otherwise, the heir, who ought to enter for the 
 condition broken, will take advantage of his own default," and see 1st 
 Vezey421; 14th Vezey, Jun. 345; 3d Burrows, 1624; 1st Wilson 107, 
 and 1st Yernon 234, 304. Most of these cases, with others, are quoted 
 in Cruise's Digest, Title Devise, Ch. 20, Sections 10 to 22 inclusive. The 
 consequence is, that if these be conditions precedent, an estate tail has 
 vested in Israel, and the lessors of the plaintiff cannot recover. But 
 as to the second proposition, that if these be conditions subsequent, and 
 the performance has become impossible by the act of God, the estate 
 shall be enjoyed discharged from the conditions ; and although the vest- 
 ing of the estate devised to the issue of John Smith must be postponed 
 until some of them arrive to the age of twenty-one, yet it remains with 
 the heirs at law during the interval, and the plaintifis, as heirs, are 
 entitled to recover. 
 
 That this is the general rule with respect to conditions subsequent, 
 there can be no doubt. And yet it strikes me that it cannot avail the 
 lessors of the plaintiff in this case. John Smith died in the hfetime 
 of the testatrix, so that no estate was vested in him. By his death, the 
 devise to him became lapsed, and if the estate of his issue had been so 
 connected with his, that they must have taken through him, and not as 
 purchasers, their estate would also have lapsed by his death, 1st Vezey 
 420. But it is said that John's children take as purchasers. This is 
 true. But when do they take ? Not yet. They are not yet twenty-one 
 years of age. It is not pretended that any estate under this devise is 
 executed in them ? And where is it ? It is with the heirs at law. And 
 shall they be divested of an estate, yet in their hands, upon a conditional 
 grant of it, when the condition cannot be performed ? I have discov- 
 ered no case that authorizes this idea. Lord Coke says, that " if a con- 
 dition annexed to lands be possible at the making of the condition, and 
 become impossible by the act of God, yet the estate of the feoffee shall 
 
168 Chttech in Beattle Square v. Grant. 
 
 not be avoided." And the reason he gives is, " because the estate in 
 the land is executed and settled in the feoffee, and cannot be redeemed 
 back again but hy matter subsequent." Here then is the reason of the 
 distinction in this respect, between conditions precedent and subsequent ; 
 and upon this reason the rule does not apply to matters executory, as a 
 bond, recognizance, etc. Coke on Lyttleton, p. 206, Sec. 334, Bacon's 
 Abdt., Title Condition, letter K 
 
 Need we then inquire whether, if John had survived, the conditions 
 would have been precedent or subsequent to the vesting of his estate. 
 If not to be performed before his estate would vest, they certainly were 
 to be performed before this devise to his issue could take effect, even in 
 interest. In the case of Doe ex dem. Planner & Wife v. Scudamore, 2 
 Bos. & Pul. 297, Justice Heath says, " The question always is, whether 
 the thing is to happen before or after, the estate is to vest ; if before, 
 the condition is precedent ; if after, it is subsequent." If the conditions 
 need not be performed before John's life estate could vest, they surely 
 must be before it could end. This devise to the issue of John, then, is 
 in fact subject to conditions necessarily precedent to it in point of time, 
 and it must also be so considered ia reference to the reasons upon which 
 the distinction is founded between conditions precedent and subsequent, 
 as affected by the circumstance of performance becoming impossible by 
 the act of God. The result is, that if there were no further limitation, 
 the property would remain with the heirs at law. But it was not the 
 intention of the testatrix that this property should descend to her heirs 
 at law. She has provided a substitute in case the first set of estates 
 should not take effect. And, for the reason before mentioned, I am of 
 opinion that the devise to Israel has taken effect ; and, of course, that 
 the lessors of the plaintiff cannot recover. 
 
 Judgment for defendant. 
 
 PEOPRIETOES OF CHUECH IN BEATTLE SQUAEE v. 
 
 GEANT. 
 
 Supreme Judicial Court of Massachusetts, March Term, 1855, 
 
 [Beported In 3 Gray 142.] 
 
 A limitation, by way of executory devise, which may possibly not take 
 eflfect within the term of a hfe or lives in being at the death of the tes- 
 
Church in Brattle Square v. Grant. 169 
 
 tator, and twenty-one years (adding, in case of a child then en ventre sa 
 mere, about nine months) afterwards, is void, as too remote, and tend- 
 ing to create a perpetuity. 
 
 A devise, subject to a conditional limitation void for remoteness, vests an 
 absolute estate in the first taker. 
 
 A house and land were devised to the deacons of a church, and their suc- 
 cessors, forever, "upon this express condition and limitation, that is to 
 say, that the minister or eldest minister of said church shall constantly 
 reside and dwell in said house, during such time as he is minister of said 
 church ; and in case the same is not improved for this use only, I then 
 declare this bequest to be void and of no force, and order that said house 
 and land then revert to my estate, and I give the same to my nephew 
 J. H. and to his heirs forever." Held, that the devise over to J. H. and 
 his heirs was a conditional limitation, and not upon condition ;. that it 
 was void as being too remote ; and that the deacons and their successors 
 took an absolute estate in fee. 
 
 Bill nsr equity by the Proprietors of the Church in Brattle Square, 
 prajdng for leave to sell the parsonage-house in Court street, held by 
 them under the following devise in the will of Lydia Hancock : " I 
 give and bequeath unto Messrs. Timothy Newell, Isaac Smith, and 
 Ebenezer Storer, present deacons of the Church of Christ in Brattle 
 street in Boston, whereof the Rev. Mr. Samuel Cooper is minister, and 
 to their successors in that office, all that brick dwelling-house and land 
 situated in Queen street, lately improved by my honored father, Daniel 
 Henchman, Esquire, as his mansion-house, to hold the same, at and 
 immediately upon the decease of my mother, unto the said Timothy 
 Newell, Isaac Smith, and Ebenezer Storer, and to the deacons of the 
 said church for the time being, forever, upon this express condition and 
 limitation, that is to say, that the minister or eldest minister of said 
 church shall constantly reside and dwell in said house, during such 
 time as he is minister of said church ; and in case the same is not im- 
 proved for this use only, I then declare this bequest to be void and of 
 no force, and order that said' house and land then revert to my estate, 
 and I give the same to my nephew, John Hancock, Esquire, and to his 
 heirs forever." The said John Hancock was also made residuary 
 devisee. The will was dated October 30th, 1765, and proved in the 
 probate court on the 21st of November, 1777. 
 
 The bill alleged that from the decease of Mrs. Hancock the minister 
 or eldest minister of said church had constantly dwelt and resided in 
 15 
 
170 Church in Brattle Square v. Grant. 
 
 said house, during such time as he was minister of said church, and the 
 house ahd land had been improved for that use only ; that the sum 
 assessed for taxes upon said estate had been and was continually in- 
 creasing, and the estate required, and would from time to time require, 
 the expenditure of large sums of money to keep it in repair ; that a 
 sale of the estate was necessary to the beneficial accomplishment of the 
 intent of the devise ; that the present deacons of the church, who nq;w 
 hold the legal estate in the premises, were unwilling to join in making 
 sale thereof without the sanction and decree of this court, because John 
 Hancock and others, heirs at law of the John Hancock named in the 
 will, pretended that the estate was devised upon the limitation and con- 
 dition that the minister or eldest minister of said church should con- 
 stantly dwell and reside in said house during such time as he should be 
 minister of said church, and that in case the same should not be im- 
 proved for that use only, the testatrix ordered that the said house and 
 land should revert to her estate, and gave and devised the same to the 
 sfiid John Hancock and to his heirs forever, and so, if the said house 
 and land should be sold, the same would be forfeited and would revert 
 to the heirs of the said John Hanc^ock ; but the plaintiffs charged the 
 contrary thereof to be the truth, and that the devise was not upon any 
 such condition or limitation, and that the supposed devise over to said 
 Hancock was altogether void and of no effect ; and that, if any forfeit- 
 ure of said estate could or should at any time be worked, the legal title 
 would not vest in the heirs of said John Hancock, but in certain other 
 persons, heirs at law of the testatrix ; and that if the estate should, in 
 the opinion of this court, be deemed to have been devised and to be still 
 holden by said deacons upon any such limitation or condition, a sale of 
 the estate had become necessary and expedient to effect the objects of 
 the trust, as contemplated by the testatrix. 
 
 The deacons and minister of the church, John Hancock and others, 
 heirs of John Hancock named in the will, and the heirs at law of the 
 testatrix, were made parties to the bill. The bill prayed for a discovery, 
 for a decree for a sale of the estate, and an investment and application 
 of the proceeds in such manner as should best effect the objects of the 
 trust, and for further relief. 
 
 John Hancock and William H. Spear, two of the heirs at law of 
 John Hancock named in the will, filed answers, in which they alleged 
 that the condition and limitation of the devise under which the plain- 
 
Chtjech in Bkattle Square v. Grant. 171 
 
 tiffs held was valid ; two other heirs of said John Hancock demurred 
 on the ground that they were improperly made parties ; and all the 
 other defendants suffered the bill to be taken for confessed. 
 
 The case was argued at March term, 1853, by C. B. Goodrich and 
 I. J. Austin, for the plaintiffs, and C. L. Hancock, for the defendant 
 Hancock. 
 
 BiGELOW, J. — The interesting and important questions involved in 
 the present case are now for the first time brought to our consideration. 
 In a suit in equity between the same parties, which was pending several 
 years ago in this court, we were not called upon to give any construc- 
 tion to the clause in the will of Lydia Hancock, imder which the 
 deacons of the church in Brattle Square and their successors hold the 
 estate now in controversy. The object of that suit was widely different 
 from that of the present. The plaintiffs then assumed, by implication, 
 that they were bound by the " condition and limitation " annexed to the 
 devise, and the validity of the gift over on breach of the condition was 
 not called in question by them. The single purpose then sought to be 
 accomplished was to obtain authority to sell the estate, solely on the 
 ground that, from various causes, the occupation and use of the premises 
 for a private dwelling, and especially for a parsonage, in the manner 
 prescribed in the will, had become onerous and impracticable; and the 
 prayer of the bill was that, if a sale was authorized, the proceeds might 
 be invested in other real estate, to be held on the same trusts and upon 
 the like condition and limitation as are set out and prescribed in the 
 ■will of the testatrix, relative to the estate therein devised to the deacons 
 and their successors. It is quite obvious that, on a bill thus framed, no 
 question could arise concerning the respective titles of the parties to the 
 suit, under the devise. They were not put in issue by the pleadings, 
 and no decision was in fact made in regard to them. That suit was 
 determined solely upon the ground that the case made by the plaintiffi 
 was not such as to warrant the court in making a decree for a sale of 
 the premises upon the reasons and for the causes alleged in that bill, 
 and above stated. 
 
 The case is now brought before us upon allegations and denials which 
 directly involve the construction of the devise, and render it necessary 
 to determine the respective rights of the devisees and heirs at law to 
 
172 Chuech in Beattlb Squabe v. Geant. 
 
 the estate in controversy. In order to decide the questions thus raised, 
 it is material to ascertain, in the outset, the legal nature and quality of 
 the estate which is created by the terms of the devise to Timothy Newell 
 and others, deacons of the church in Brattle street. If the gift had 
 been solely to the deacons of the church in Brattle street and their suc- 
 cessors forever, without any condition annexed thereto concerning its 
 use and occupation, it would, without doubt, have vested in them the 
 absolute legal estate in fee. By the provincial statute of 28 G. 2, which 
 was in force at the time of the death of the testatrix, the deacons of all 
 Protestant churches were made bodies corporate, with power to take in 
 succession all grants and donations, both of real and personal estate. 
 Anc. Chart. 606. The words of the devise were apt and suificient to 
 create a fee in the deacons and their successors, and they were legally 
 competent to take and hold such an estate. It therefore becomes neees- 
 . sary to consider the nature and effect of the condition annexed to the 
 gift ; how far it qualifies the fee devised to the deacons and their suc- 
 cessors ; aud what was the interest or estate devised over to John Han- 
 cock and his heirs forever, upon a failure to comply with and perform 
 the condition. It will aid in the solution of these questions, if we are 
 able in the first place to determine, with clearness and accui'acy, within 
 what class or division of conditional and contingent estates Hhe devise 
 in question falls. 
 
 Strictly speaking, and using words in their precise legal import, the 
 devise in question does not create simply an estate on condition. By 
 the common law, a condition annexed to real estate could be reserved 
 only to the grantor or devisor, and his heirs. Upon a breach of the con- 
 dition, the estate of the grantee or devisee was not ipso facto terminated, 
 but the law permitted it to continue beyond the time when the contin- 
 gency upon which it was given or granted happened, and until an entry 
 or claim was made by the grantor or his heirs, or the heirs of the 
 devisor, who alone had the right to take advantage of a breach. 2 Bl. 
 Com. 156. 4 Kent Com. (6th ed.) 122, 127. Hence arose the distinc- 
 tion between a condition and a conditional limitation. A condition, 
 followed by a limitation over to a third person in case the condition be 
 not fulfilled, or there be a breach of it, is termed a conditional limita- 
 tion. A condition determines an estate after breach, upon entry or 
 claim by the grantor or his heirs, or the heirs of the devisor. A limi- 
 tation marks the period which determines the estate, without any act on 
 
Church in Brattle Square v. Grant. 173 
 
 the part of him who has the next expectant interest. Upon the hap- 
 pening of the prescribed contingency, the estate first limited comes at 
 once to an end, and the subsequent estate arises. If it were otherwise, 
 it would be in the power of the heir to defeat the limitation over, by 
 neglecting or refusing to enter for breach of the condition. This dis- 
 tinction was origiually introduced in the case of wills, to get rid of the 
 embarrassment arising from the rule of the ancient common law, that 
 an estate could not be limited to a stranger, upon an event which went 
 to abridge or destroy an estate previously limited. A conditional limi- 
 tation is therefore of a mixed nature, partaking both of a condition and 
 of a limitation ; of a condition, because it defeats the estate previously 
 limited ; and of a limitation, because, upon the happening of the con- 
 tingency, the estate passes to the person having the next expectant 
 interest, without entry or claim. 
 
 There is a further dLstinction in the nature of estates on condition, 
 and those created by conditional limitation, which it may be material 
 to notice. Where an estate in fee is created on condition, the entire 
 interest does not pass out of the grantor by the same instrument or con- 
 veyance. All that remains, after the gift or grant takes effect, continues 
 in the grantor, and goes to his heirs. This is the right of entiy, as we 
 have already seen, which, from the nature of the grant, is reserved to 
 the grantor and his heirs only, and which gives them the right to enter 
 as of their old estate, upon the breach of the condition. This possibility 
 of reverter, as it is termed, arises in the grantor or devisor immediately 
 on the creation of the conditional estate. It is otherwise where the 
 estate in fee is limited over to a third person in case of a breach of the 
 condition. Then the entire estate, by the same instrument, passes out 
 of the grantor or devisor. The fii-st estate vests immediately, but the 
 expectant interest does not take effect until the happening of the con- 
 tingency upon which it was limited to arise. But both owe their ex- 
 istence to the same grant or gift; they are created unoflatu; and being 
 an ultimate disposition of the entire fee, as well after as before the 
 breach of the condition, there is nothing left in the grantor or devisor 
 or his heirs. The right or possibility of reverter, which, on the crea- 
 tion of an estate in fee on condition merely, would remain in him, is 
 given over by the limitation which is to take effect on the breach of the 
 condition. 
 
 One material difference therefore, between an estate in fee on condi- 
 15* 
 
174 Chxjech in Brattle Square v. Grant. 
 
 tion and on a conditional limitation, is briefly this; that the former 
 leaves in the grantor a vested right, which, by its very nature, is re- 
 served to him, as a present existing interest, transmissible to his heirs ; 
 while the latter passes the whole interest of the grantor at once, and 
 creates an estate to arise and vest in a third person, upon a contingency, 
 at a future and uncertain period of time. A grant of a fee on condi- 
 tion only creates an estate of a base or determinable nature in the gran- 
 tee, leaving the right or possibility of reverter vested in the grantor. 
 Such an interest or right in the grantor, as it does not arise and take 
 effect upon a future uncertain or remote contingency, is not liable to the 
 objection of violating the rule against perpetuities, in the same degree 
 with other conditional and contingent interests in real estate of an ex- 
 ecutory character. The possibility of reverter, being a vested interest 
 in real property, is capable at all times of being released to the person 
 holding the estate on condition, or his grantee, and, if so released, vests 
 an absolute and indefeasible title thereto. The grant or devise of a fee 
 on condition does not therefore fetter and tie up estates, so as to prevent 
 their alienation, and thus contravene the policy of the law which aims 
 to secure the free and unembarrassed disposition of real property. It 
 is otherwise with gifts or grants of estates in fee, with limitations over 
 upon a condition or event of an uncertain or indeterminate nature. 
 The limitation over being executory, and depending on a condition, or 
 an event which may never happen, passes no vested interest or estate. 
 It is impossible to ascertain in whom the ultimate right to the estate 
 may vest, or whether it will ever vest at all, and therefore no convey- 
 ance or mode of alienation can pass an absolute title, because it is 
 wholly uncertain in whom the estate will vest on the happening of the 
 event or breach of the condition upon which the ulterior gift is to take 
 effect. 
 
 Bearing in mind these distinctions, it is obvious that the devise in 
 question was not the gift of an estate on a condition merely, but it also 
 created a limitation over, on the happening of the prescribed contin- 
 gency, to a third person and his heirs forever. It was therefore a con- 
 ditional limitation, under which general head or division may be com- 
 prehended every limitation which is to vest an interest in a third per- 
 son, on condition, or upon an event which may or may not happen. 
 Such limitations indude certain estates in remainder, as well as gifts 
 and grants, which, when made by wiU, are termed executory devises. 
 
Chtiech in Brattle Square v. Grant. 175 
 
 and when contained in conveyances to uses, assume the name of spring- 
 ing or shifting uses. 1 Preston on Estates, §§ 40, 41, 93. 4 Kent 
 Com. (6th ed.) 128, note. 2 Fearne Cont. Eem. (10th ed.) 50. 1 Pow. 
 Dev. 192, and note 4. 1 Shep. Touch. 126. 
 
 That the devise in question does not create a contingent remainder in 
 John Hancock and his heirs is very clear, upon familiar and well estab- 
 lished principles. There is, in the first place, no particular estate upon 
 the natural determination of which the limitation over is to take effect. 
 The essence of a remainder is, that it is to arise immediately on the ter- 
 mination of the particular estate by lapse of time or other determinate 
 event, and not in abridgment of it. Thus a devise to A for twenty 
 years, remainder to B in fee, is the most simple illustration of a partic- 
 ular estate and a remainder. The limitation over does not arise and 
 take effect until the expiration of the period of twenty years, when the 
 particular estate comes to an end by its own limitation. So a gift to A 
 imtil C returns from Rome, and then to B in fee, constitutes a valid 
 remainder, because the particular estate, not being a fee, is made to deter- 
 mine upon a fixed and definite event, upon the happening of which it 
 comes to its natural termination. But if a gift be to A and his heirs 
 till C returns from Rome, then to B in fee, the limitation over is not 
 good as a remainder, because the precedent estate, being an estate in fee, 
 is abridged and brought to an abrupt termination by the gift over on 
 the prescribed contingency. One of the tests, therefore, by which to 
 distinguish between estates in remainder and other contingent and con- 
 ditional interests in real property, is, that where the event, which gives 
 birth to the ulterior limitation, determines and breaks off the preceding 
 estate before its natural termination, or operates to abridge it, the limi- 
 tation over does not create a remainder, because it does not wait for the 
 regular expiration of the preceding estate. 1 Jarman on Wills 780. 
 
 4 Kent Com. 197. Besides, wherever the gift is of a fee, there cannot 
 be a remainder, although the fee may be a qualified or determinable one. 
 The fee is the whole estate. When once granted, there is nothing left 
 in the donor but a possibility or right of reverter, which does not con- 
 stitute an -actual estate. 4 Kent Com. 10, note. Martin v. Strachan, 
 
 5 T. R. 107, note. 1 Jarman on Wills 792. All the estate vests in 
 the first grantee, notwithstanding the qualification annexed to it. If, 
 therefore, the prior gift or grant be of a fee, there can be neither par- 
 ticular estate nor remainder ; there is no particular estate, which is an 
 
376 Church in Beattle Square v. Grant. 
 
 estate less than a fee; and no remainder, because,' the fee being 
 exhausted by the prior gift, there is nothing left of it to constitute a 
 remainder. Until the happening of the contingency, or a breach of the 
 condition by which the precedent estate is determined, it retains all the 
 characteristics and qualities of an estate in fee. Although defeasible, it 
 is still an estate in fee. The prior estate may continue forever, it being 
 an estate of inheritance, and liable only to determine on an event which 
 may never happen. For this reason the rule of the conmion law was 
 established, that a remainder could not be limited after a fee. In the 
 present case, the devise was, as we have already stated, a gift to the 
 deacons and their successors forever ; and they being by statute a quasi 
 corporation, empowered to take and hold grants in fee, it vested in them, 
 ex vi termini, an estate in fee, qualified and determinable by a failure to 
 comply with the prescribed condition. The limitation over, therefore, 
 to John Hancock and his heu's could not take effect as a remainder. 
 
 It necessarily results from these views of the nature and qualify of 
 conditional and contingent estates, as applicable to the devise in ques- 
 tion, that the limitation of the estate over to John Hancock and his 
 hail's, after the devise in fee to the deacons and their successors, is a 
 conditional limitation, and must take effect, if at all, as an executory 
 devise. The original purpose of executory devises was to carry into 
 effect the will of the testator, and give effect to limitations over, which 
 could not operate as contingent remainders, by the rules of the common 
 ' law. Indeed, the general and comprehensive definition of an executory 
 devise is a limitation by will of a future estate or interest in land, which 
 cannot, consistently with the rules of law, take effect as a remainder. 
 Every devise to a person in derogation of, or substitution for, a preced- 
 ing estate in fee simple, is an executory devise. 4 Kent Com. 264. 1 
 Jarman on Wills 778. Lewis on Perp. 72. 6 Cruise Dig., tit. 38, c. 
 17, §§1, 2. PurefoyY. Rogers, 2 Saund. 388 a, and note. Thus a 
 limitation to A and his heirs, and if he die under the age of twenty-one 
 yeai's, then to B and his heirs, is an executoiy devise, because it is a lim- 
 itation of an estate over after an estate in fee. This, by the rules of 
 the ancient common law, would have been void, for the reason that they 
 did not permit any limitation over after the grant of a previous fee. 
 Whenever, therefore, a devisor disposes of the whole fee in an estate to 
 one person, but qualifies this disposition, by giving the estate over, upon 
 breach of a condition, or happening of a contingency, to some other 
 
Chtjech IK Brattle Sqtjaee v. Grant. 177 
 
 person, tliis creates an executory devise. 4 Kent Com. 268. 6 Cruise 
 Dig., tit. 38, c. 17, § 2. Bac. Ab., Devise, I. 1 Fe^ne Cont. Kern. 399. 
 
 In the case at bar, the devise is to the deacons and their successors in 
 this office forever. By itself, this gave to them an absolute estate in fee- 
 simple ; but the gift in fee was qualified and abridged by the condition 
 annexed, and by the limitation over to John Hancock and his heirs. 
 From the rules and principles which we have been considering, it would 
 seem to be very clear that the devise in question did not create an estate 
 on condition, because the entire fee passed out of the devisor by the will ; 
 no right of entry for breach of the condition was reserved, either directly 
 or by impKcation, to herself or her heire, but ujion the prescribed con- 
 tingency it was devised over to a third person in fee. It did not create 
 an estate in remainder, because there was no particular estate which was 
 first to be determined by its own limitation before the gift over took 
 effect, and because, the prior gift being of the entire fee, there was no 
 remainder, inasmuch as the prior estate might continue forever. It did 
 create an executory devise, because it was a limitation by will of a fee 
 after a fee, which, by the rules of law, could not take effect as a re- 
 mainder. 
 
 This being the nature of the devise to John Hancock and his heirs, 
 it remains to be considered whether there is anything, in the nature of 
 the gift over, which renders it invalid, and if so, the effect of its inva- 
 lidity upon the prior estate devised to the deacons and their successoi's. 
 Upon the fii-st branch of this inquiry, the only question raised is, whether 
 the gift over is not made to take effect upon a contingency which is too 
 remote, as violating the well established and salutary rule against per- 
 petuities. Executory devises in their nature tend to perpetuities, 
 because they render the estate inalienable diu-ing the period allowed for 
 the contingency to happen, though all mankind should join in the con- 
 veyance. They cannot be aliened or barred by any mode of convey- 
 ance, whether by fine, recovery, or otherwise. 4 Kent Com. 266. 2 
 Saund. 388 a, note. Hence the necessity of fixing some period beyond 
 which such limitations should not be allowed. It has therefore long 
 been the settled rule in England, and adopted as pai-t of the common 
 law of this commonwealth, that all limitations, by way of executory 
 devise, which may not take effect within the term of a life or lives in 
 being at the death of the testator, and twenty-one years afterwards, as 
 a term in gross, or, in case of a child en ventre sa mere, t^veuty-one years 
 
 M 
 
178 Church in Beattle Square v. Grant. 
 
 and nine months, are void as too remote, and tending to create perpetu- 
 ities. 4 Kent Co A 267. 1 Jarman on Wills 221. 4 Cruise Dig., tit. 
 32, c. 24, § 18. Nightingale v. BurreU, 15 Pick. 111. See also Gadell 
 V. Palmer, 1 CI. & Fin. 372, 421, 423, which contains a very full and 
 elaborate history and discussion of the cases on this subject. In the 
 application of this rule, in order to test the legality of a limitation, it 
 is not sufficient that it be capable of taking effect within the prescribed 
 period ; it must be so framed as ex necessitate to take effect, if at all, 
 within that time. If, therefore, a limitation is made to depend upon 
 an event which may happen immediately after the death of the testa- 
 tor, but which may not occur until after the lapse of the prescribed 
 period, the limitation is void. The object of the rule is to prevent any 
 limitation which may restrain the alienation of property beyond the 
 precise period within which it must by law take effect. If the event 
 upon which the limitation over is to take effect may, by possibility, 
 not occur within the allowed period, the executory devise is too re- 
 mote, and cannot take effect. Nightingale v. BurreU, 15 Pick. 111. 
 4 Kent Com. 283. 6 Cruise Dig., tit. 38, c. 17, § 23. These rules are 
 stated with great precision in 2 Atkinson on Conveyancing, (2d ed.) 
 264. 
 
 The devise over to the heirs of John Hancock is therefore void, as 
 being too remote. The event upon which the prior estate was to deter- 
 mine, and the gift over take effect, might or might not occur within a 
 life or lives in being at the death of the testatrix, and twenty-one years 
 thereafter. The minister of the church in Brattle Square, it is true, 
 might have ceased constantly to reside and dwell in the house, and it 
 might have been improved for other purposes, within a year after the 
 decease of the testatrix ; but it is also true that it may be occupied as a 
 parsonage, in the manner prescribed in the will, as it has hitherto been 
 during the past seventy-five years, for five hundred or a thousand years 
 to come. The limitation over is not made to take effect on an event 
 which necessarily must happen at any fixed period of time, or even at 
 all. It is not dependent on any act or omission of the devisees, over 
 which they might exercise a control. It is strictly a collateral limita- 
 tion, to arise at a near or remote period, uncertain and indeterminate, 
 and contingent upon the will of a person who may at any time happen 
 to be clothed with the office of eldest minister of the church in Brattle 
 Square. It is difficult to imagine an event more indefinite as to the 
 
Church in Brattle Square v. Grant. 179 
 
 time at which it may happen, or more uncertain as to the cause to which 
 it is to owe its birth. 
 
 The more common cases of limitations by executory devise, which 
 are held void, as contravening the rule against perpetuities, are when 
 property is given over upon an indeiinite failure of issue, or to a class 
 of persons answering a particular description, or specifically named ; as 
 to the children of A who shall attain the age of twenty-five, or to a 
 person possessing a certain qualification, with which he will not be nec- 
 essarily clothed within the prescribed period. So gifts to take effect 
 upon the extinction of a dignity, by failure of the lives of persons to 
 whom it is descendible ; Bacon v. Proctor, Turn. & Russ. 31 ; Made- 
 worth V. Hinxman, 2 Keen 658 ; or depending on the contingency of 
 no heir male or other heir of a paiiiicular person attaining twenty-one, 
 no person being named as answering that description; Ker v. Lord 
 Dungannon, 1 Dru. & War. 509 ; are held invalid, as being too re- 
 mote. So, too, in a case more analogous to the present, where the tes- 
 tator devised lands to tmstees, and directed the yearly rents, to a certain 
 amount then fixed and named in the will, to be appropriated for certain 
 'charitable purposes ; and provided that, in the event of there being a 
 new letting, by which an increase of rents was obtained, the surplus 
 arising from such increase should go to the use and behoof of the per- 
 son or persons belonging to certain families, who, for the time being, 
 should be lord or lords, lady or ladies, of the manor of Downpatrick ; 
 and in case the said families did not protect the charities established by 
 the will, or if the said families should become extinct, then the said 
 surplus rents were to be appropriated to said charities, in addition to 
 the former provisions for the charity ; it was held that the gift over of 
 the surplus rents to the trustees for the charity was too remote, as the 
 contingency upon which it was to take effect was not restricted to the 
 proper limits. Commissioners of Charitable Donations v. Baroness De 
 Clifford, 1 Dru. & War. 245, 253. In this case Lord Chancellor Sug- 
 den says, " This is a clear equitable devise of a fee qualified or limited ; 
 a fee in the sm'plus rents for this family, so long as they shall be lords 
 and ladies of the manor of Downpatrick, ' in case,' (and I must here 
 read the words in cas§ as if they wei-e 'whilst' or 'so long as,') certain 
 persons pi'otect the almshouse, etc. ; and thus the limitation would as- 
 sume the same character as that which is so familiar to us all, viz., while 
 such a tree shall stand, or the happening of any other indifferent event. 
 
180 Chuech in Beattle Sqttaee v. Geant. 
 
 Such being my opinion with respect to the estate devised to these fami- 
 lies, I must hold the gift over void. The law admits of no gift over, 
 dependent on such an estate ; a limitation after it is void, and cannot be 
 supported ; otherwise, it would take eifect after the time allowed by law." 
 It is diificult to distinguish that case from the one at bar. The contin- 
 gency of the families neglecting to protect the charities established by 
 the will, in that cash, was no more remote than that of the failure or 
 omission of the minister of the chm-ch for the time being to reside and 
 dwell in the house, as is prescribed by the will in the present case. Either 
 event might take place within the prescribed period, but it might not 
 until a long time afterwards. It can make no difference in the applica- 
 tion of the case cited, that it was the gift of an equitable fee-simple, be- 
 cause the limits prescribed to the creation of future estates and interests 
 are the same at law and in equity. Lewis on Perp. 169. 4 Cruise Dig., 
 tit. 32, c. 24, § 1. JDuhe of Norfolk v. Howard, 1 Vem. 164. 
 
 But it is quite unnecessary to seek out analogies to sustain this point, 
 as we have a direct and decisive authority in the case of Welsh v. Foster, 
 12 Mass. 97. It was there held, tliat a limitation, in substance the same 
 as that annexed to the devise in the present case, being made to take' 
 effect when the estate should cease to be used for a particular purpose, 
 was void, for the reason that it contravened the rule against perpetuities. 
 That was the case of a grant by de^ed, with a proviso that the estate was 
 not to vest " until the millpond [on the premises] should cease to be em- 
 ployed for the purpose of carrying any two mill-wheels ; " and it was 
 adjudged that the rule was the same as to springing and shifting uses 
 created by deed, as that uniformly applied to executory devises in order 
 to prevent the creation of inalienable estates. The limitation was there- 
 fore held invalid, as depending on a contingency too remote. 
 
 The true test, by which to ascertain whether a limitation over is void 
 for remoteness, is very simple. It does not depend on the character or 
 nature of the contingency or event upon which it is to take effect. These 
 may be varied to any extent. But it turns on the single question whether 
 the prescribed contingency or event may not arise until after the time 
 allowed by law, within which the gift over must take effect. Applying 
 this test to the present case, it needs no argument or illustration to show 
 that the devise over to John Hancock and his heirs is upon a contin- 
 gency which might not occur within any prescribed period, and is there- 
 fore void, as being too remote. 
 
Church in Brattle Square v. Grant. 181 
 
 The remaining inquiry is as to the effect of the invalidity of the de- 
 vise over, on account of its remoteness, upon the preceding gift in fee to 
 the deacons and their successors forever. Upon this point we understand 
 tlie rule to be, that if a limitation over is void by reason of its remote- 
 ness, it places all prior gifts in the same situation as if the devise over 
 had been wholly omitted. Therefore a gift of the fee or the entire in- 
 terest, subject to an executory limitation which is too remote, takes effect 
 as if it had been originally limited free from any divesting gift. The 
 general principle applicable to such cases is, that when a subsequent con- 
 dition or limitation is void by reason of its being impossible, repugnant, 
 or contrary to law, the estate becomes vested in the first taker, discharged 
 of the condition or limitation over, according to the terms in which it 
 was granted or devised ; if for life, then it takes effect as a life estate ; 
 if in fee, then as a fee-simple absolute. 1 Jarman on Wills 200, 783. 
 Lewis on Perp. 657. 2 Bl. Com. 156. 4 Kent Com. 130. Co. Lit. 
 206 a, 206 b, 223 a. The reason on which this rule is said to rest is, 
 that when a party has granted or devised an estate, he shall not be 
 allowed to fetter or defeat it, by annexing thereto impossible, illegal, or 
 ■ repugnant conditions or limitations. Thus it has been often held, that 
 when land is devised to A in fee, and upon the failure of issue of A, then 
 to B in fee, and the first estate is so limited, that it cannot take effect as 
 an estate tail in A, the limitation over to B is void, as being too remote, 
 because given upon an indefinite failure of issue, and the estate vests ab- 
 solutely in fee in A, dischai-ged of the limitation over. So it was eaiiy 
 held, that where a testator devised all his real and personal estate to his 
 wife for life, and after her death to his son and his heu-s forever, and in 
 case of the death of the son without any heir, then over to the plaintiff ia 
 fee, the devise over to the plaintiff was void, and the son took an absolute 
 estate in fee. Tilbury v. JSarbut, 3 Atk. 617. Tyte v. Willis, Cas. temp. 
 Talb. 1. 1 Fearne Cont. Rem. 445. So, too, if a devise be made to A 
 and his heirs forever, and for want of such heirs then to a stranger in 
 fee, the devise over to the stranger would be void for remoteness, and A 
 would take a fee-simple absolute. Nottingham v. Jennings, 1 P. W. 25. 
 1 Pow. Dev. 178, 179. 2 Saund. 388 a, b. 1 Fearne Cont. Rem. 467. 
 Attorney- General v. GiM, 2 P. W. 369. Bmby v. Salter, 2 Preston's 
 Abstracts 164. Kampf v. Jones, 2 Keen 756. Ring v. Hardwiolc, 2 
 Beav. 352. MiUer v. Maeomb, 26 Wend; 229. Ferris y. Gibson, 4 Edw. 
 Ch. 707. Tator v. Tator, 4 Barb. 431 . C'onMin v. Conklin, 3 Sandf. Ch. 64. 
 16 
 
182 Church in Brattle Square v. Grant, 
 
 Such indeed is the necessary result which follows from the manner in 
 which executory devises came into being and were engrafted on the stock 
 of the common law. Originally, as has been already stated, no estate 
 could be limited over after a limitation in fee-simple, and in such case 
 the estate became absolute in the first taker. This rule was afterwards 
 relaxed in cases of devises, for the purpose of effectuating the intent of 
 testators, so far as to render such gifts valid by way of executory devise, 
 when confined within the limits prescribed to guard against perpetuities. 
 If a testator violated the rule by a limitation over which was too re- 
 mote, the result was the same as if at common law he had attempted to 
 create a remainder after an estate in fee. The remainder jivould have 
 been void, and the fee-simple absolute would have vested in the first 
 taker. 6 Cruise Dig., tit. 38, c. 12, § 20. Co. Lit. 18 a, 271 b. 
 
 The rule is, therefore, that no estate can be devised to take effect in 
 remainder after an estate in fee-simple ; but a devise, to vest in deroga- 
 tion of an estate in fee previously devised, may under proper limits be 
 good by way of executory devise. If, after a limitation in fee by will, 
 a disposition is made of an estate to commence on the determination of 
 the estate in fee, the law, except in the case of a devise over to take effect 
 within the prescribed period, presumes the estate first granted will never 
 end, and therefore regards the subsequent disposition as vain and useless. 
 Shep. Touch. (Preston's ed.) 417. It makes no difference in the appli- 
 cation of this rule, that the condition on which the limitation over is 
 made to depend is not mala in se. It is sufficient that it is against 
 public policy. Thus in a recent case, where estates were limited to A 
 for ninety-nine years, if he should so long live, remainder to the heirs 
 male of his body, with a proviso that if A did not during his lifetime 
 acquire a certain dignity in the peerage, the gift to his heirs male should 
 be void, and the estate should go over to certain other persons, it was 
 held that this conditional limitation was made to depend upon a condi- 
 tion which was against public policy and therefore void, and that the 
 estate vested in the eldest son of A as heir male, discharged of the gift 
 over. Egerton v. Earl Brownlow, 4 H. L. Cas. 1. So in the case at 
 bar, the limitation over being upon an event which is too remote, and 
 for that reason contrary to the policy of the law, cannot take effect. The 
 estate therefore in the deacons and their successors remains unaffected by 
 the gift over to John Hancock and his heirs. The doctrine on this point 
 is briefly and clearly stated in the Touchstone; "No condition or limi- 
 
Church in Brattle Square v. Grant. 183 
 
 tation, be it by act executed, limitation of a use, or by devise or last will, 
 that doth contain in it matter repugnant, or matter that is against law, 
 is good. And therefore, in all such cases, if the condition be subsequent, 
 the estate is absolute and the condition void ; " " and the same law is for 
 the most part of limitations, if they be repugnant, or against law, as is 
 of conditions" in like cases. Shep. Touch. 129, 133. See also 4 H. L. 
 Cas. 160. 
 
 It is undoubtedly true that this construction of the devise defeats the 
 manifest purpose of the testatrix, which was, on a failure to use aud 
 occupy the premises as a parsonage in the manner described in the will, 
 to give the estate to John Hancock and his heirs. But no principle is 
 better settled than that the intent of a testator, however clear, must fail 
 of effect, it it cannot be carried into effect without a violation of the 
 rules of law. 1 Pow. Dev. 388, 389. 
 
 It is to be borne in mind, however, in this connection, that the claim 
 set up by the heirs at law of the testatrix to the premises in controversy 
 is in direct contravention of the clear intent of the will, by which they 
 are studiously excluded from any share or interest whatever in this estate. 
 All that she did not specifically devise is given by the residuary clause 
 to John Hancock. Her heirs therefore can claim only by virtue of an 
 arbitrary rule of law ; and it certainly more accords with the general 
 intent of the testatrix, that the absolute title in this estate should, by 
 reason of the invalidity of the gift over, be vested in the deacons and 
 their successors, who were manifestly the chief objects of her bounty in 
 this devise, than in her heirs at law, whom she so carefully disinherited. 
 The court will not construe a conditional limitation as a mere condition, 
 and thus defeat the estate first limited, in a mode not contemplated by 
 the testatrix. 
 
 ' Nor can the estate in question pass by the residuaiy clause. The 
 testati'ix having specifically devised the entire estate to the first taker, 
 and upon the happening of the contingency over, to another person, 
 could not have intended to include it in the gift of the residue. She 
 had given away all her estate aud interest in the property, and nothing 
 remained to pass by the residuary clause. 2 Pow. Dev. 102-104. 
 Hayden v. Stoughion, 5 Pick. 538. It is not like a case of a gift on a 
 valid condition, where the right or possibility of reverter remains in the 
 donor or devisor, which would pass under a residuaiy clause, or in case 
 of intestacy, to the heii-s of the donor ; but it is the case of a devise in 
 
184 Church in Brattle Square v. Grant. 
 
 fee on a conditional limitation over, which is void in law. There is 
 therefore no possibilily or right of reverter left in the devisor, which 
 can pass to heirs or residuary devisees, and the lipiitation over being 
 , illegal and void, the estate remains in the first takers, discharged of the 
 divesting gift. Nor does it make any difference in the application of 
 this well settled rule of law to the present case, that the testatrix in 
 terms declares that the gift to the deacons and their successors shall be 
 void, if the prescribed condition be not fulfilled. The legal effect of 
 all conditional limitations is to make void and. terminate the previous 
 estate upon the happening of the designated contingency, and to vest 
 the title in those to whom the estate is limited over by the terms of the 
 gift or grant. The clause in the will, therefore, which declares the gift 
 void in the event of a breach of the condition, and directs that the 
 premises shall revert to her estate, does not change the nature of the 
 estate, nor add any force or effect to the condition which it would not 
 have had at law, if no such clause had been inserted in the will. It is 
 simply a conditional limitation. The condition, being accompanied by 
 a limitation over which is void in law, fails of effect, and the estate 
 becomes absolute in the first takers. It could not revert to her estate, 
 because there was no reversion left, the whole estate being limited over 
 by the same devise. Such reversion could only exist in case of a simple 
 condition, as we have already seen ; and no such reverter can take place 
 where the condition is accompanied by a limitation over. Besides, and 
 this perhaps is the more satisfactory view of a devise of this nature, the 
 condition operates only as a limitation, the rule being that when an estate 
 is given over upon breach of a condition, and the same is devised by 
 express words of condition, yet it will be intended as a limitation only. 
 In all cases where a clause in a will operates as a condition to a prior 
 estate, and a limitation over of a new estate, the condition takes effect 
 only as a collateral determination of the prior estate, and not strictly as 
 a condition. Therefore a limitation on a condition or contingency is not 
 a condition ; a clause creating contingent remainders or executory gifts 
 by devise is properly a limitation, and though it be in such terms as to 
 defeat another estate by way of shifting use or executory devise, still it 
 is strictly speaking a limitation. 2 Cruise Dig., tit. 16, c. 2, §30. Shep. 
 Touch. 117, 126. Vent. 202. Carter, 171. 
 
 The case of Austin v. Cambridgeport Parish, 21 Pick. 215, cited and 
 relied upon by the defendant Hancock, is wdely different from the case 
 
Chfech in Brattle Square v. Grant. 185 
 
 at bar. That was a grant by deed of an estate, defeasible on a condi- 
 tion subsequent which was legal and valid. The possibility of reverter 
 was in the grantor and his heirs or devisees ; the residue of the estate 
 was vested in his grantee, the parish. The two interests united made 
 up the entire fee-simple estate, and were vested in persons ascertainable 
 and capable of conveying the entire estate. There was nothing, there- 
 fore, in that case which resembled a perpetuity, or restrained the aliena- 
 tion of real property. The conditional estate in the parish, and the 
 possibility of reverter in the devisees of the grantor, were vested estates, 
 and interests capable of conveyance, and constituting together an entire 
 title or estate in fee-simple. This is very diffei-ent from an executory 
 devise, where only the conditional estate is vested, and the persons to 
 whom the limitation over is made are uncertain and incapable of being 
 ascertained until the prescribed contingency happens, however remote 
 that event may be. No conveyance of such an estate, by whomsoever 
 made, could vest a good title, because it can never be made certain, until 
 after a breach of the condition, in whom the estate is to vest. Besides, 
 in that case there was nothing illegal or contrary to the policy of the 
 law, in the creation of the estate by the original grantor. The case of 
 Hayden v. Stoughton, 5 Pick. 628, to which reference has also been 
 made, did not raise any question as to the remoteness of the gift over, 
 because it there vested, according to the construction given to the will, 
 within twenty years from the death of the testator, and therefore within 
 the prescribed period. In the case of Brigham v. Shattuck, 10 Pick. 
 306, the court expressly avoid any decision on the validity of the devise 
 over, and decide the case upon the ground that the demandant had no 
 title to the premises in controversy. 
 
 The result, therefore, to which we have arrived on the whole case is, 
 that the gift over to John Hancock is an executory devise, void for re- 
 moteness ; and that the estate, upon breach of the prescribed condition, 
 would not pass to John Hancock and his heirs, by virtue of the resid- 
 uary clause, nor would it vest in the heirs at law of the testatrix. But 
 being an estate in fee in the deacons and their successors, and the gift 
 over being void, as contrary to the policy of the law, by reason of vio- 
 lating the rule against perpetuities, the title became absolute, as a vested 
 remainder in fee, after the decease of the mother of the testatrix, in the 
 deacons and their successors, and they hold it in fee simple, free from 
 the divesting limitation. 
 16* 
 
186 Smith v. Hance. — Church v. Grant. 
 
 A decree may therefore be entered for the sale of the estate, as prayed 
 for in the bill, and for a reinvestment of the proceeds for the objects and 
 purposes intended to be effected by the trusts declared in the will respect- 
 ing the property in question. 
 
 "When an estate is so expressly confined and limited by the words of its 
 creation that it cannot endure for any longer time than till the contingency 
 happens upon which the estate is to fail, this is denominated a limitation ; 
 as when lands are granted to a man so long as he is parson of Dale, or 
 while he contiuues unmarried, or until out of the rents and profits he shall 
 have made £500, and the like. In such case the estate determines as soon 
 as the contingency happens (when he ceases to he parson, marries a wife, 
 or has received the £500), and the next subsequent estate which depends 
 upon such determination, becomes immediately vested without any act to 
 be done by him, who is next in expectancy," 2 Blackst. Com. 155. 
 
 In The Proprietors of the Church in Brattle Square v. Grant, 3 Gray 142, 
 the following definition of a conditional limitation is given : " A condition 
 followed by a limitation to a third person in case the condition be not ful- 
 filled, or there be a breach of it." 
 
 Creation of Conditional Limitation. 
 
 It is sometimes a little difficult, fi:om the mere phraseology of a provision, 
 especially one occurring in a will, to determine whether it creates an estate 
 on condition or a conditional limitation, while certain words are peculiarly 
 appropriate to one or the other, yet there are words which have no abso- 
 lute force, and may be used for either one or the other, and while the limi- 
 tation over is generally looked to as determining the intent of the instru- 
 ment, yet there may be a good conditional limitation without a devise over, 
 McOullough's Appeal, 12 Pa. St. 197. As, however, there is a wide differ- 
 ence between the nature of an estate on condition and that of one on 
 a conditional limitation, and especially with reference to the manner of 
 their being terminated, it becomes of importance to properly distinguish 
 provisions creating the one or the other. 
 
 The best general rule can be derived irom considering the great distinc- 
 tion* between the two estates when created. The estate on condition has 
 attached to it something that must be done to cause it to vest or to prevent 
 it from being divested, or that must be left undone on peril of its de- 
 
Smith v. Hance. — Chtjech v. Geant. 187 
 
 struction, upon the breach of which condition the estate becomes voidable, 
 and the grantor or his heirs may destroy it by entry or some other positive 
 act. The estate on a conditional limitation, on the other hand, has a fixed 
 period, fixed by the happening of an event, beyond which it cannot con- 
 tinue ; the instant the event happens, the estate is at an end, and the right 
 of the tenant is absolutely and finally gone, without any further act on the 
 part of any one. From this consideration may then be derived the general 
 rule that whenever the intent of a deed or will in attaching a condition to 
 a gift or devise of land is to compel or to prevent the performance of a 
 certain act, there the instrument should be construed as creating an estate 
 on condition ; but where the intent is to fix certain bounds to the length of 
 existence of an estate, there the instrument should be construed as making 
 a conditional limitation. 
 
 The words ordinarily used in creating a condition are, as we have seen, 
 " provided," " so that," " upon condition," etc. (ante p. 123) ; while the terms, 
 " so long as," " while," " during," " until," are words ordinarily indicative 
 of a conditional limitation, Henderson v. Hunter, 59 Pa. St. 335 ; Vanatta 
 V. Brewer, 32 N. J. Eq. 268 ; Bennett v. Robinson, 10 Watts 348. The 
 intent of the words, as above given, is not, however, inflexible, and there 
 are instances where the word " provided " has been interpreted as making 
 a conditional limitation, Stearns v. Godfrey, 16 Me. 158 ; Chapin v. Harris, 
 8 Allen 594. 
 
 . A devise to E. and J. of one-third, each, of certain land in fee, and to "W. 
 of the remaining one-third, and " at the death of W. his share to be equally 
 divided between E. and J., with this provision, in case the said W. should 
 ever recover from the present malady under which he now labors [insan- 
 ity], then he is to hold all the property devised to him for his own use and 
 benefit," has been held to give an estate to arise by way of conditional limi- 
 tation, Montgomery v. Petriken, 29 Pa. St. 118. 
 
 And there is even an instance of the words " upon condition," taken in 
 connection with the rest of a deed, making a conditional limitation. In the 
 recent case of Camp v. Cleary, Supreme' Court of Appeals of Virginia, Jan- 
 uary term, 1882, 13 Eeporter 381, a grantor conveyed by deed of gift, to 
 his grandson, three pieces of groand, on one of which pieces stood a mauso- 
 leum, and the gift was " upon the condition that if he [the grantee] shall 
 ever ... in any way whatsoever alienate or dispose of the said last men- 
 tioned piece of land, or any part thereof, this deed shall cease and be void, 
 and the said last mentioned piece of land, with the other two lots conveyed 
 to him in fee, shall revert to and rest in his sister E. and her heirs forever." 
 It was argued that this presented the case of a condition in restraint of 
 alienation, and therefore void ; but the Court held that it was the case of a 
 
188 Smith v. Hastce. — Church v. Grant. 
 
 conditional limitation, and therefore not open to the objection urged against 
 its validity. 
 
 The words "paying, etc.," have been adjudged to create a limitation, 
 Wheeler v. Walker, 2 Conn. 196 ; citing Welloek v. Sammond, Cro. Eliz. 
 204 ; Mary Portington's Case, 10 Coke 41. 
 
 A grant " provided that if the grantee neglect to pay" his proportion of 
 certain sums of money rendered, by the deed, necessary to entitle him to hold 
 certain land given thereby, " B. and F. shall be entitled to hold the same 
 in fee," has been held a conditional limitation. Steams v. Godfrey, supra. 
 
 A grant of a right of watercourse with this addition, " and if by any 
 reason the water should not be delivered in the main pipe for the space of 
 one whole year at one time, this indenture is to cease," has been held a 
 limitation and not a condition, enforceable or not at the will of the grantor, 
 and the court also held that, the estate having expired, the grantor could 
 not prevent the grantee from removing the pipes, which, according to the 
 terms of the deed, he had a right to remove on the termination of his 
 estate, Owen v. Field, 102 Mass. 105. 
 
 While the fact that on a breach the estate granted reverts to the grantor, 
 is in general a characteristic of an estate on condition, yet the mere pres- 
 ence of a provision that the estate shall so revert will not cause a conditional 
 limitation to be construed as a condition. See Henderson v. Hunter, 59 Pa. 
 St. 335, in which case the deed granted certain land to the trustees of a 
 Methodist church and their successors " so long as they use it for that pur- 
 pose and no longer, and then to revert back to the original owner." 
 
 Distinction Between Estate on Condition and Conditional Lim- 
 itation. » 
 
 The most material diiference between a condition and a conditional limi- 
 tation has been already adverted to; it is this, that to render a condition 
 effective to terminate the estate to which it is attached, it must be taken 
 advantage of by some act, and this can be done only by the grantor or his 
 heirs, while on the expiration of an estate by the limitation it at once 
 ceases, and the next estate in expectancy at once vests, Attorney- General v. 
 Merrimack Manufacturing Co., 14 Gray 612 ; Miller v. Levi, 44 N. Y. 489 ; 
 and a stranger may take advantage of the recurrence of the contingency 
 gn which the estate is limited, Owen v. Field, 102 Mass. 105. This dis- 
 tinction was originally introduced " to get rid of the embarrassment arising 
 from the rule of the ancient common law that an estate could not be limited 
 to a stranger upon an event which went to abridge or destroy an estate 
 previously limited. A conditional limitation is therefore .of a mixed nature, 
 
Smith v. Hance. — Church v. Grant. 189 
 
 partaking both of a condition and of a limitation : of a condition because 
 it defeats an estate previously limited, and of a limitation because upon the 
 happening of the contingency the estate passes to the person having the 
 next expectant interest without entry or claim," Bigelow, J., in Proprie- 
 tors of Church v. Grant, supra. The design of the rule is to carry out the 
 latent of the grantqr or devisor, for if the estate over could not vest in pos- 
 session ia the grantee thereof without some act of the heirs of the grantor, 
 the grantee might very possibly never receive the benefit intended for him. 
 Den ex d. Smith v. Hance, 6 Hals. 244. 
 
 A conditional limitation is subject to the rule against perpetuities, which 
 we have seen (ante p. 132) does not apply to estates upon condition, viz., 
 that an estate given must vest within the period of a life or lives in being at 
 the time of the death of the testator, and tweaty-one years as a term in gross 
 after the expiration of such life or lives, the period of gestation being added 
 in the case of a child en ventre sa mire, 4 Kent 267 ; Proprietors of Church, 
 etc. V. Grant, supra. And to determiue whether the limitation over is void 
 as in conflict with the above rule, the test is, must the limitation over, by 
 the terms of the instrument, take effect, if at all, withiu the prescribed time ? 
 If it must ex necessitate take efifect within the said time, the limitation over 
 is valid ; but if the event upon which it depends may or may not happen 
 within the said time, the limitation over is void. Id., and see Davenport v. 
 Harris, 3 Grant 164. 
 
 Where the limitation over is void, the first granted or devised estate 
 becomes absolute. Proprietors of Church, etc. v. Grant, supra. 
 
 A conditional limitation is not subject to the rule of avoidance on account 
 of being in restraint of marriage, as in the case of a condition, for, as said 
 by Gibson, C. J., ia Bennett v.. Robinson, 10 Watts 348, " the object of 
 such a Hmitation is not to impose a penalty, but to mark the extent of the 
 interest given ; against the terms of which equity has not power to relieve." 
 It may be remarked that the provision in that case might have been upheld 
 upon another ground, even if it had made a condition, as the question arose 
 upon a devise to the widow of the testator, but the Supreme Court of 
 Pennsylvania had not then taken the position announced by the same 
 learned judge in Comnnonwealih v. Stauffer, 10 Pa. St. 350 (ante p. 129), and 
 the decision was placed upon the distinction between a condition and a 
 conditional limitation. 
 
 Grantee of the Subsequent Estate may, on the Expiration of 
 the Estate first liimited. Enter at Will. 
 
 On the occurrence of the event upon which the termination of the prior 
 estate is limited, no act is necessary on the part of the grantee of the subse- 
 
190 Smith v. Hance, — Chttech v. Grant. 
 
 quent estate to cause his rights to vest. He need not even give notice of 
 his intention to take possession of the land, Ashley v. Warner, 11 Gray 43, 
 and may enter when he will. His entry will, however, be at his peril, and 
 such being the case, if, after his entry, an action is brought against him 
 therefor, he will be allowed in defence to show that the event upon which 
 the prior estate was limited has occurred. Thus in Ashley v. Warner, where 
 there was a letting so long as the tenant should keep a good school, it was 
 held that in action against one of the grantors for ejecting the tenant, he 
 should be allowed to show that the tenant was deficient in literary and 
 scientific attainments, and so incapable of keeping a good school. 
 
Life Estate. 
 
 JACKSON EX DEM. MUEPHY AND WIFE v. VAN 
 
 HOESEN. 
 
 Supreme Court of the State of New York, Albany, February Term, 1825. 
 
 [Reported in 4 Cowen 325.] 
 
 The words " has bargained and sold," in a conveyance sealed, are operative 
 
 to pass an estate for life. 
 Tenant for life, unless restrained by condition, may alien his whole estate 
 
 or any less estate. 
 If lands are conveyed to a natural person, without words of lirnitation, an 
 
 estate for the life of the grantee passes, unless the grantor be tenant for 
 
 his own life only. Then only an estate for the life of the grantor passes. 
 
 Reason of this distinction. 
 If tenant for years convey without limitation, his whole estate passes. 
 
 Ejectment for a farm in the town of Taghkanic, in the county of 
 Columbia, tried at the Columbia Circuit, on the 30th day of June, 1823, 
 before Betts, C, Judge ; when a verdict was taken for the plaintiff, 
 subject to the opinion of the Court on a case. 
 
 On the 27th of May, 1798, Henry W. Livingston executed a lease 
 of the premises in question, to John Murphy and Eve Connor, his wife, 
 for their lives. John Murphy died about the year 1814, leaving the 
 lessors of the plaintiff his heirs at law ; and they are also his adminis- 
 trator and administratrix under letters dated February 26th, 1814. 
 
 The defendant claimed under and gave in evidence an instrument in 
 writing, commencing in the usual form of articles of agreement, dated 
 the 28th April, 1800, interchangeably signed and sealed by John Mur- 
 phy, in his lifetime, and Jacob Van Hoesen, the father of the defend- 
 ant ; which, after naming the parties and date, ran thus : " witnesseth, 
 that the said John Murphy of the first part has bargained and sold 
 unto the said Jacob, the farm, etc." (the premises in question ;) and these 
 words, has bargained and sold, were the only operative words. Murphy 
 also declared by this instrument that Van Hoesen, " is to have posses- 
 
 191 
 
192 Jackson v. Van Hoesen. 
 
 sion of the above premises on the 1st day of May next." -The instru- 
 ment then provided for paying the consideration money by instalments. 
 
 Jacob Van Hoesen took possession accordingly, and continued in pos- 
 session till about 1815, when he died, leaving the defendant his heir at 
 law, who continued in possession to the time of the trial. 
 
 The instrument in writing, executed by John Murphy and Jacob 
 Van Hoesen, was left with one F. Hanson till about two years before 
 the trial, who also testified that he filled up a printed blank lease for 
 the premises from John Murphy to Jacob Van Hoesen, dated January 
 20th, 1814, for the parties named in it. 
 
 When the instrument of the 28th of April, 1800, was executed, Mur- 
 phy's name was stricken out of the rent-book as tenant, by the agent 
 of Livingston the landlord, and Van Hoesen's inserted as tenant of that 
 farm ; and the rents have always since been paid by Van Hoesen and 
 his heirs. 
 
 E. Williams, for the plaintiff. The instrument in writing of the 28th 
 April, 1800, was executory and not a present lease or conveyance; and 
 was to have been followed up by a lease, which was never executed. 
 It, therefore, passed no interest. 4 Cruise's Dig. Deed, ch. 33, s. 34, 
 pp. 428, 429. Blandfm-d v. Marlborough, per Ld. Chancellor, 2 Atk. 
 545. JaeJcson v. Kisselbraek, 10 John. Hep. 336, 337. Roe v. Asbur- 
 ner, 5 Tr. 163, 167. Doe v. Smith, per Ld. Ellenborough, 6 East, 535. 
 Goodtitle V. Way, 1 T. E. 735. 
 
 At any rate, if it could be construed into a sub-lease or conveyance 
 in prcesenti, it passed only an estate for the life of the bargainee, there 
 being no words of limitation or of inheritance. Then the death of the 
 bargainee terminates the estate. Co. Litt. 42, a, Id. s. 283, Id. 183, a, b. 
 
 J. Sudam, for the defendant. The instrument of the 28th of April, 
 1800, contains apt words of conveyance, " has bargained and sold," and 
 operates as an assignment or conveyance of the premises. JaeJcson v. 
 Kisselbraek, 10 John. Rep. 336, and the cases there cited. Where the 
 estate intended to be passed by a conveyance is not mentioned, it is 
 deemed to pass an estate for the life of the grantee, if the grantor had 
 power to sell such an estate. 1 Cruise's Dig. Estate for life, s. 4, 5, pp. 
 60, 61. Co. Litt. 42, a, sec. 56. Murphy, having only a life estate in 
 the premises, could not convey for the life of his grantee ; and the law 
 
Jackson v. Van Hoesen. 193 
 
 will so construe the conveyance as to have it pass the estate which he 
 had in the premises. Co. Litt. 42, a, Id. sec. 283. "Wood's Inst. 128-9, 
 269. The Court will also be guided by the acts of the parties, the long 
 possession, the payment of rent, and the change of the tenant's name 
 in the rent-roll. There is no doubt, from the context, but that Murphy 
 intended to divest himself of all his interest. The authorities relied on 
 against this, are where a question might arise between the tenant and 
 the reversioner upon the effect of a common law conveyance. ISTo such 
 question can arise upon conveyances which take effect upon the statute 
 of uses. 
 
 Owria, per Savage, Ch. J. The questions arising in this case are, 
 
 1. Was the article an agreement for a lease, or was it a lease in itself? 
 
 2. If it was an instrument conveying a present interest, what estate 
 passed by it? 
 
 As to the first question, it is unnecessary to examine the numerous 
 cases to be found on the subject. They are many of them cited in Jack- 
 son V. Kissdbrack, 10 John. 337, which I consider decisive of this ques- 
 tion. In that case a memorandum of an agreement was made, by which 
 the grantor " set and to farm let " to the defendant certain premises ; and 
 the agreement contained a covenant that they should be surveyed, and 
 then the defendant was to take a lease. The late Chief Justice, in giving 
 the opinion of the Court, says that the last circumstance has generally 
 given a character to the instrument of an agreement for a lease as con- 
 tradistinguished from a present demise. He adds, that none of the cases 
 contradict the position, that where there are apt words of present demise, 
 and to them are superadded a covenant for a further lease, the instru- 
 ment is to be considered a lease, and the covenant as operating in the 
 nature of a covenant for further assurance. This case is much stronger. 
 Here are apt words of conveyance. The contract seems to be complete, 
 and no provision is made for any further conveyance. If the assertion 
 be true, " that there is no case of a present demise by apt words followed 
 by a possession, in which the instrument has not been held to pass an 
 immediate interest," per Spencer, J., Id. 338, then certainly an immediate 
 interest passed by the instrument under consideration. 
 
 John Murphy had an estate for the lives of himself and wife, and 
 though the case is silent on the subject, I presume the wife is still living. 
 The plaintiff, then, is entitled to recover, unless John Murphy conveyed 
 17 N 
 
194 Jackson v. Van Hoesen. 
 
 away his whole estate. What estate did he convey ? Every tenant for 
 life has the power of alienating his whole estate, or of creating any 
 estate less than his own, unless restraiaed by condition. If he seeks to 
 create a greater estate, the eifort must necessarily be void for the excess, 
 as no one can give what he has not. 1 Cruise's Dig., Estate for life, 
 sect. 95. 
 
 If lands are conveyed to a natural person without any words of lim- 
 itation whatever, he will take an estate for his own life, unless the 
 gmntor be only tenant for his own life ; in which case the grantee will 
 take an estate for the life of the grantor only. 4 Cruise's Dig., Deed, 
 ch. 24, s. 42. But if a tenant for years conveys without limitation, his 
 whole estate passes. Fenton v. Foster, Dyer, 307, b. And vid. 2 Bac. 
 Abr., Estate for life and occupancy, (A) p. 559. Lord Coke, Co. Litt. 
 42, a. and 133 a., gives as a reason, the maxim in law, that every man's 
 grant shall be taken by construction of law most forcibly against him- 
 self; and is so to be understood that no wrong be thereby done; for it 
 is another maxim in law, quod legis constructio non facit injuriam. 
 And, therefore, if tenant for life make a lease generally, this shall be 
 taken an estate for his own life that made the lease ; for if it should be 
 a lease for the life of the lessee, it would be a wrong to him in rever- 
 sion. The law will intend the lease to be such an one as he may law- 
 fully make, rather than that an injury may accrue to any one. Co. 
 Yitt. 42, b. 
 
 Whether, therefore, the estate conveyed be for the life of the lessor 
 or lessee, as both are dead, it is at an end ; and as the lease to John 
 Murphy has not expired, the plaintiff is entitled to recover. I have 
 taken no notice of the fact of Murphy's name being stricken from the 
 landlord's rent-book, as that only shows the opinion of his agent ; nor 
 of the unexecuted lease, as that was not prepared by the direction of 
 the defendant. 
 
 Judgment for the plaintiff. 
 
 An estate for life is a freehold interest held by the tenant for the term 
 of his own life or of that of some other person. Littleton, Sec. 56, 416 ; 
 1 Cru. Dig., Tit. III., ch. 1, sec. 1. 
 
 To render an estate a life estate it is not necessary that it be so limited 
 that it must endure for the life of the grantee or of some other person ; it 
 
Jackson v. Van Hoesen, 195 
 
 is sufficient that it may endure for such life and cannot endure beyond it.. 
 As said with reference to estates for the life of the tenant in Den v. Oraw- 
 ford, 3 Hals. 90, " An estate, by whatever terms expressed, which may 
 remain to a man during his life and no longer, is an estate for life." 
 
 The class of life estates most frequently met with is the estate for the 
 life of the tenant. 
 
 Creation of Life Estate. 
 
 Estates for life are created in two ways (1), by the act of the law, as 
 estates in dower, by the curtesy and in tail after possibility of issue extinct ; 
 and (2) by the act of the parties to a deed, or of the devisor in a will. It 
 is with life estates created in the latter manner that we are at present con- 
 cerned. 
 
 A life estate cannot be created by parole, Stewart v. Olarh. 13 Met. 79 : 
 Garrett v. Clark, 5 Oreg. 464 ; but may be by either deed or devise. 
 
 By Deed. 
 
 The most obvious way of creating a life estate by deed, is to express 
 the estate granted to be for the life of the grantor, grantee, or some other 
 person ; but on account of the inflexibility of the rule requiring a grant 
 of an estate of inheritance to contain words of inheritance, it may be said 
 generally that, except where it is otherwise provided by statute, a deed to 
 a person indefinitely or generally, without using the proper words of per- 
 petuity, as " heirs," " heirs of the body," or their equivalents, will give to 
 the grantee an estate for life, Hunter v. Bryan, 5 Humph. 47 ; Qray v. 
 Parker, 4 W. & S. 17 ; Jackson ex d. Murphy v. Van Hoesen, 4 Cow. 325 
 [and see ako cases cited in the note upon fee-simple, pp. 53, 57, etc.] ; and 
 where the word heirs does not appear in the granting part of the deed, the 
 implied life estate will not be turned into a fee by a warranty to the grantee 
 and his heirs, or a covenant with them for quiet enjoyment, Den ex d. Rob- 
 erts V. Forsythe, 3 Dev. Law 26 ; Den ex d. Snell v. Young, 3 Ired. Law 
 379; Register v. Rotvell, 3 Jones Law 312, or by a warranty against the 
 grantor, his heirs, executors and assigns, Patterson v. Moore, 15 Ark. 222, 
 for it is co-extensive with the estate warranted, and when the estate limited 
 has run out, the warranty, no matter how large in terms, cannot revive or 
 extend the estate, but falls with it, Register v. Rowell, supra. 
 
 A deed to one, his executors, administrators, and assigns, will give a life 
 estate, Clearwater v. Rose, 1 Blackf. 137 ; so, also, a deed to one, and his 
 " successors," and that even where the deed is made to the grantee as a 
 
196 Jackson v. Yak Hoesew. 
 
 trustee, WJieekr v. Kirtland, 24 N. J. Eq. 552, modifying the opinion of 
 the Chancellor in 23 N. J. Eq. 13. 
 
 A grant for an indefinite time as to one quamdiu se bene gesserit, or so long 
 as a certain rent is paid, or until a contingent event happen, or to a woman 
 durante vidiuate or dum sola, or to a husband and wife during coverture, 
 will give a life estate, Littleton, Sec. 56, 42 a, and even where the period of 
 limitation will, in all human probability, be far beyond the life of the 
 grantee, if the word heirs is not used, an estate for life will be taken, as 
 where the deed was to "J. M. and his generation, to endure as long as the 
 waters of the Delaware run," Lessee of Foster v. Joice, 3 Wash. C. C. 498. 
 
 In King v. Barns, 13 Pick. 24, the deed granted one-half of a certain 
 property to H., his heirs and assigns, with an habendum to H., his heirs 
 and assigns, and continued, " and after my ani my wife's decease, H. shall 
 have the other half." It was held that H. took a Ufe estate in the last 
 mentioned half, and that it was not to be enlarged to a fee by the fact that 
 the first half was granted in fee. 
 
 In Kenniston v. Leighton, 43 N. H. 309, a conveyance to A., " his heirs 
 and assigns for life," then to the use of his children for life, and from and 
 after the decease of each, his portion to descend to his children, and after 
 the decease of the grandchildren to the use of their heirs and assigns for- 
 ever, was held to give a life estate only to the children of the first taker, as 
 the conveyance being under the statute of uses, that part of the fee which 
 the grantor had failed to dispose of remained in him and his heirs. 
 
 A deed to A. for the use of the wife and children of B., will vest a life 
 estate in the wife, with a remainder in fee to the children as a class, White 
 V. Williamson, 2 Grant 249. 
 
 A life estate may be created by a reservation in a deed for a greater estate, 
 Doe ex d. Smith v. Grady, 2 Dev. Law 395 ; Den ex d. Hatch v. Thompson, 
 3 Id. 411 ; Hodges v. Spieer, 79 N. C. 223. 
 
 A quit-claim deed by one tenant in common to his co-tenant will convey 
 a life estate only, McKinney v. Stacks, 6 Heisk. 284. 
 
 # 
 
 By Devise. 
 
 We have already seen, in considering devises in fee-simple and fee-tail, 
 that, as a rule, except where otherwise established by statute, the word heirs 
 was necessary to create a fee by devise, and, consequently, where a devise 
 was made generally and without words of inheritance, the estate taken by 
 the devisee would be an estate for life ; and we have also seen that to this 
 rule the exceptions allowed for the purpose of rendering efiectual the inten- 
 tion of the testator were very numerous. See, in addition to cases cited on 
 
Jackson v. Van Hoesen. 197 
 
 p. 57 et seq., Conoway v. Piper, 3 Harring. 482 ; Jackson ex d. Neivkirk v. 
 Emhler, 14 Johns. 198 ; Miles v. Fisher, 10 Ohio 1 ; in the last case a 
 devise to A. and his successors, not being a corporation, was held to give 
 a life estate only. 
 
 In the interest of the testator's intention not only will an estate be en- 
 larged beyond the mere verbal grant, but if, from the whole tenor of the 
 will, an intention to give less than is implied by the words used in the par- 
 ticular devise is discoverable, a devise apparently in fee may be construed 
 to give only an estate for life ; and, in furtherance of the testator's desire, 
 even the word " heirs " may be read in another sense, as " sons," Lyles v. 
 Digges's Lessee, 6 H. & J. 364 ; or " children," Bunnell v. Evans, 26 Ohio 
 409 ; and a devise to one " and her heir male forever, that is to say, her 
 son, in case he come of age to enjoy it, but if he die before then," then over, 
 is held to give to the first taker a life estate, Harris v. Potts, 3 Yeates 141. 
 A devise in words which would clearly give an estate in fee, will be con- 
 strued a devise for life if the will contains a devise over on the death of the 
 first taker, Jones's Ex'rs v. Stites, 19 N. J. Eq. 324, and even if there is a 
 devise over on the happening of a contingency connected with the life of 
 the first taker, as a devise over in case the first taker shall never have chil- 
 dren, Hatfield v. Sneden, 42 Barb. 615 ; see, also, Norris v. Beyea, 3 Kern 
 273. Where, however, the devise over, after the death of the first taker, is 
 for life, and the fee can be sustained without destroying the life estate, both ' 
 will be upheld, and on the death of the first taker, the remainder-man will 
 take an estate for life, leaving a remainder in fee to the heirs of the first 
 taker, Jones v. Bramblet, 2 111. 276. 
 
 A devise of an " improvement," followed by a devise over, will give a life 
 estate only. Bowers v. Porter, 4 Pick. 198 ; Wilmarth v. Bridges, 113 Mass. 
 407. 
 
 A devise to a wife " forever and during her life," wUl carry but a life 
 estate, Sheafe v. Cushing, 17 N. H. 508. 
 
 A life estate will not be enlarged to a fee by words, contained in the pre- 
 amble to a will, showing an intention to dispose of the whole estate of the 
 testator, unless there is some connection between the preamble and the de- 
 vising clause. Hall et al. v. Goodwyn, 2 N. & McC. 383 ; Beall v. Holmes, 6 
 H. & J. 205 ; Jackson v. Wells, 9 Johns. 222 ; or the will contains some 
 provision inconsistent with the gift of an estate for life only, Wheaton v. 
 Andress, 23 Wend. 452, and the preamble will never be allowed so to con- 
 trol material words of a devise as to convert a life estate into a fee, Sheafe 
 v. Cushing, 17 N. H. 508 ; see, also, Olmstead v. Harvey, 1 Barb. 102; S. C 
 1 N. Y. (Comst.) 483, and note and cases ante, p. 62. 
 
 Where a general devise of land is made with words forbidding the dev- 
 17* 
 
198 Jackson v. Van Hobsen. 
 
 isee to sell or incumber it, the devise, in the absence of a contrary intent 
 otherwise appearing on the face of the will, will be held to be of an estate 
 for life, Orim's Appeal, 1 Grant 209 ; and the devise so restrained will be 
 held to be for life, even where there is a provision for the descent of the land 
 to children, where the will recites that the interest of the first taker is for 
 life only, (JByrne v. Feeley, 61 Ga. 77. 
 
 "While a devise in general words, accompanies! by a charge or burden 
 upon the devisee in respect to the devise, is often held to give a fee, for reasons 
 stated ante, p. 67, the rule is strictly applied, and the charge must be upon 
 the person of the devisee in respect to the land devised ; a charge upon the 
 land itself will not have the eifect of converting the presumptive life estate 
 into a fee, Olmstead v. Olmstead, 4 Comst. 56 ; lAppen v. Eldred, 2 Barb. 130 ; 
 Stevens v. Winship, 1 Pick. 318; Mesick v. New, 7 N. Y. 163 ; see, also. Les- 
 see of Ferguson v. Zepp, 4 Wash. C. C. 645 ; Jackson v. Martin, 18 Johns. 
 -31, and the charge must be a real one, imposing some actual burden, even 
 if a very light one, to be borne after the death of the testator, or if the 
 charge be in the shape of services to be performed prior to the death of the 
 testator, it must be shown to have been known to the devisee, so that the 
 performance of the services was induced by the hope of obtaining the de- 
 vise. This is well illustrated in Farrar v. Ayres, 5 Pick. 404. In that case 
 the will contained a devise to the testatrix's coachman and his wife on con- 
 dition that the coachman continued to serve the testatrix during her life, 
 and conducted himself to her satisfaction. It was argued that the devise 
 gave a fee, but the Court held that a life estate only was taken. Putnam, 
 J., saying : " In regard to. the supposed charge upon the devisee, it is suf- 
 ficient to say that it did not survive the testatrix ; she gave the estate upon 
 condition that the devisee should serve her as coachman so long as she 
 should require him, but she did not subject him to any charge or duty upon 
 taking the estate after her decease — and it does not appear that the devise 
 was intended as a satisfaction for the services of the devisee, or that he ever 
 knew of the provision which his mistress had made for him, until after her 
 death. It cannot be said then that this estate came to the devisee subject 
 to any charge. What is given, whether in fee or for life, is given in a man- 
 ner to be enjoyed, without any payment or duty to be made or performed 
 by the devisee.'' 
 
 An express devise for life will not be enlarged to a fee by a charge, Moore 
 V. Dimond, 5 R. I. 121, and the same rule is to be applied where there is a 
 plain intent to create a life estate discoverable, as said by Paeker, C. J., 
 in Boivers v. Porter, 4 Pick. 198, " where the intention to create a life estate 
 is deducible from the expressions of the will, the estate cannot be enlarged 
 by construction although it is burdened with duties." 
 
Jackson v. Van Hoesen. 199 
 
 "While a devise of land in general terms, accompanied by an absolute 
 power of disposition, will carry a fee (see ante, p. 64), a devise in terms 
 for life witb such power does not become a fee in the hands of the devisee, 
 and if the power is never exercised the estate remains one for life simply, 
 and will revert to the heirs of the testator on the death of the devisee, 
 Dunning v. Van Dusen, 47 Ind. 423 ; Henderson v. Vauh, 10 Yerg. 30 ; 
 Frazier v. Hassey, 43 Ind. 310 ; Demon v. Mitchell, 26 Ala. 360 ; Benesch 
 V. Clark et al, 49 Md. 497 ; Eamsdell v. Ramsdell, 21 Me. 288 ; SImw v. 
 Sttssey, 41 Id. 495 ; Hale v. Marsh, 100 Mass. 468 ; Cummings v. Shaio, 
 108 Id. 159 ; Collins v. Carlisle's Heirs, 7 B. Mon. 13 ; Pulliam v. Byrd, 2 
 Strobh. Eq. 134 ^ Fairman v. Beal, 14 111. 244; Andrelus v. Brumfield, 32 
 Miss. 107 ; Rail v. DoUon, 14 Sm. & M. 176 ; Stevens v. Wimhip, 1 Pick. 
 318 ; Troy v. Troy, Winst. Eq. 77 ; but if the power is exercised, the ven- 
 dee or appointee thereunder will take an estate in fee, Eamsdell v. Ramsdell, 
 Shaw v. Hussey, Hale v. Marsh, Cummings v. Shaw, supra. A devise to 
 executors of the power to sell realty does not vest in them any estate, but 
 the fee remaios in the heir until the power is exercised, Ex'rs of Ware v. 
 Murph, Eice 54. 
 
 A direction in a devise of land, that it shall be equally divided among 
 certain persons, will not, by construction, give them more than a life estate, 
 Edwards v. Bishop, 4 N. Y. (Comst.) 61, the words "to be equally divided" 
 going to the quality and not to the limitation of an estate, Jackson v. Liiguere, 
 5 Cow. 221 ; Jackson v. Bull, 10 Johns. 148 ; Van Alstyne v. Spraker, 13 
 Wend. 578 ; and a devise to several, to be equally divided, to them for life, 
 and after their deaths to their lawful issue, and if any one should die leaving 
 no issue, his or her share to be divided among the survivors, will give 
 estates for life with fees, and, in South Carolina, conditional fees, in remain- 
 der, McCorkle v. Black, 7 Rich. Eq. 407. 
 
 As a general rule, a devise to one and his children, he having no children 
 at the time the devise is made, will be construed as giving to the devisee 
 an estate tail, see ante, p. 97, but this rule is subordinate to the intention 
 of the testator, and such a devise may be so explained by other expressions 
 in the will as to pass an estate for life only. In Sisson v. Seabury, 1 Sumn. 
 235, the devise was to A. and his male children, lawfully begotten of his 
 body, and their heirs forever, to be equally divided among them and their 
 heirs forever. A. had, at the time the devise was-made, no children, yet 
 the estate given was held to be for life to A., with remainder to the children. 
 Story, J., regarding the provision for an equal distribution as inconsistent 
 with an intention to give an estate tail. Where estates tail have been 
 turned into fees by statute, it is at least questionable whether the intent of 
 the testator will not often be defeated, rather than carried into effect, by the 
 
200 Jackson v. Van Hoesen. 
 
 enforcement of the rule, and the Supreme Court of Kentucky has so held. 
 In Carr v. Estill, 16 B. Men. 309, that Court departed from the general 
 rule, and held a devise to an unmarried woman and her children, a devise 
 for life to the first taker, with a remainder to the children afterwards born 
 in wedlock. Ceensecaw, J., in delivering the opinion of the Court, dis- 
 cussed the rule and the reason thereof, as follows : " In general, the word 
 ' children' is a word of purchase and not of limitation, and as it was ac- 
 knowledged by the jurists of England that the word in its present connec- 
 tion manifested a certain intent on the part of the testator that the children 
 should take under the devise, and as they would do so there, if the word 
 were construed to be a word of limitation and not a word of purchase, it 
 was natural and easy for the English judges to make an exception to the 
 general acceptation of the word, and so construe it as to render the estate 
 devised an estate tail ; and as this was a convenient mode of giving Qffect 
 to the intention of the testator, the courts of England adopted it without 
 perhaps bestowing much consideration on the question whether the testator 
 might not have intended to give a life estate to the person in esse, remainder 
 to the children, which might equally have effectuated his intention. How- 
 ever this may be, it is clear that they adopted their rule of construction to 
 promote the intention of the testator ; and our law having converted estates 
 tail into absolute fee-simple estates, it is equally clear that if we adopt the 
 same rule of construction the acknowledged intention will be frustrated 
 and defeated, as the children could thus take nothing under the devise. . . . 
 It has been observed, the words of the devise abstractly and~literally impart 
 an immediate gift not only to the devisee in being, but to those not in being. 
 But there being no children in esse at the time of the devise, it could not 
 have been the intention to give an immediate estate to them, for that were 
 impossible ; and as the words of the devise, as conceded by all the authori- 
 ties, manifest a clear intent that the children shall take, the only consistent 
 and rational construction is that the testator intended the devisee in being 
 at the time should take a life estate, remainder to the children ; " and see, 
 also. Wood V. Griffin, 46 N. H. 231. 
 
 The use in a devise of the word "children," in connection with the words 
 " heirs of the body," has often the eifect of destroyiag what would other- 
 wise have been an estate tail, and rendering it a life estate, Goss v. Eber- 
 hart, 29 Ga. 545, in which Lumpkin, J., said : " The employment of this 
 term [heirs], therefore, indicates that the children were not to take a pres- 
 ent estate, but one that should come to them after the death of their 
 mother." 
 
 A life estate will be given by a devise to one " for her own benefit and 
 separate support, and of her children and family," with a devise over on 
 
Jackson v. Van Hoesen. 201 
 
 her death, Jossey et ux. v. White, 28 Ga. 265 ; and a devise to daughters of 
 the testator and their heirs, " the said property to remain in the hands of 
 my executors for the benefit of my said daughters during their respective 
 lives, and then the remainder to be given up to their heirs,'' will give a 
 life estate to the daughters, and vest none in the executors, Knight v. 
 Weatherwax, 7 Paige 182. 
 
 A life estate may be given by implication without words of direct gift ; 
 thus a devise, " after my death and the death of my wife, I give to B.," 
 etc., will give a life estate to the wife surviving the testator, Barry y. Shelby, 
 4 Hayw. 229 ; and a devise to be divided among the children of E,., he and 
 they enjoying the benefit while he lives, will give a life estate to R., Has- 
 Idns V. Tate, 25 Pa. St. 249. 
 
 In the case of a wUl made by an unlettered person, a devise giving lands 
 to be equally divided among sons and daughters, and containing further 
 provisions which contemplated keeping the property together during the 
 lives of the sons and daughters, and even afterwards, has been held to give 
 an estate in trust for the sons and daughters, so long as they contruued 
 members of the family, for their lives, and afterwards to their children, 
 Bunch V. Hardy, 3 Lea 543. 
 
 A devise in general terms to G., with the following addition, " now the 
 condition is that the property is to remain to G. and his chUd and children, 
 and in case he should die without leaving children," then over, has been 
 held to give a life estate to G., with remainder to the children. Hill v. 
 Thomm, 11 S. C. 346. 
 
 A devise of the right to occupy, possess, or enjoy lands for life, will give 
 a life estate, Wimthoff v. Dracourt, 8 Watts 240 ; Kearney v. Kearney, 17 
 N. J. Eq. 59, S. C. on Appeal, Id. 504, or a devise giving the right for an 
 indefinite time at the option of the devisee, Piper's Estate, 2 W. N. C. 711. 
 See also the Succession of Law, 31 La. Ann. 456. 
 
 The mere fact that the devise is a devise over, after a precedent life 
 estate, does not cause it to be necessarily construed as a fee — thus a devise 
 of a plantation to E., subject to a life estate in her mother, will give to E. a 
 life estate only, Calhoun v. Cooh, 9 Pa. St. 226. 
 
 A devise to one and his children, there being a child or children living at 
 the time of the devise, will be held to give a life estate to the devisee with 
 a remainder in fee to the children as a class, so that after-born children 
 will be entitled to share in the remainder equally with those already in 
 existence, Hannan v. Oshorn, 4 Paige 336 ; Reeder v. Spearman, 6 Rich. 
 
 Eq. 88. 
 
 A devise " to F., and if he should die before his wife, it is my will that 
 the land return to my legatees . . . but should he outlive his wife, then to 
 
202 Jackson v. Van Hoesen. 
 
 F. in fee," gives a life estate to F., with a contingent remainder in fee, 
 Den V. Oraivford, 3 Hals. 90. 
 
 A devise to two daughters, to be equally divided between them, share 
 and share alike, and to be to them for and during their natural life, and 
 after their death to be to their and each of their children, and to be divided 
 between them, share and share alike, gives a life estate only to the daugh- 
 ters, with a remainder to the children of each, as tenants in common, Bool 
 ei ux. V. Mix, 17 Wend. 119. 
 
 A devise to a wife and her husband for their lives and the life of the 
 survivor, " subject to be divided among the heirs of her body," and in de- 
 fault of heirs of the body, then over, gives a life estate, Self's Adm'r v. Tune, 
 6 Munf. 470. 
 
 A devise as follows, " I lend to 0. E. . , . . if in case said O. R. should 
 live to arrive at manhood, and beget heirs lawfully, the above property to 
 him and his heirs forever," followed by a devise over, was held to give a 
 life estate, to be enlarged to a fee, upon the birth of issue, Felton v. Billups, 
 1 Dev. & Bat. 584. 
 
 Where a devise was made of land to be divided among the testator's 
 wife and his half sisters, " as the law directs," the law referred to was held 
 to be the intestate law, and as that gave the widow but a life estate in her 
 portion, she was held to take no more under the will, Benton v. Benton, 4 
 Harring. 38. 
 
 A devise that the testator's son " shall have all the land I have any right, 
 title, or claim to, either by law or equity," except certain land previously 
 devised to a daughter, expressly in fee, will give a life estate only, Dough- 
 erty V. Monett's Lessee, 5 G. & J. 459. 
 
 In those States where the statutes have turned fees-tail into estates for 
 life in the first taker in tail, with a remainder either to the heir at law or 
 the issue of the devisee, a devise in tail will be interpreted as giving an 
 estate for life, with remainder over, Chiles v. Bartleson, 21 Mo. 344 ; Blair 
 V. Van Blarcum, 71 111. 290, and where by statute or otherwise it is held 
 that words of perpetuity are not necessary to a devise to make a fee, still 
 where a life estate is given by implication, it will not be enlarged to a fee 
 without such words, Fuller v. Tates, 8 Paige 325. 
 
 Where a life estate is given in a will, it will not be held to be destroyed 
 by a subsequent devise of the fee in the same instrument, if by any con- 
 struction, consistent with law and reason, the two estates can be both up- 
 held. The law on this subject is thus stated by Thompson, J., in Wilson v. 
 MeKeehan, 53 Pa. St. 79 : " The rule is to regard the first taker as the pre- 
 ferred object of the testator's bounty, and in doubtful cases the construc- 
 tion leans in favor of making the gift to him or her as effectual as possible." 
 
Jackson v. Van Hoesen. 203 
 
 In Chesebro v. Schoolcraft, 25 Wend. 633, the testator devised land for 
 life to his widow, and afterwards devised one-third thereof to a daughter, 
 with power to sell the same after the death of the widow, another third to 
 a second daughter with a like power, and the remaining third to a third 
 daughter, without making any mention of the widow. It was held that 
 the widow's life estate in the last third was not revoked, but that she would 
 hold her entire devise for life. 
 
 In Hodges v. Potter, 12 R. I. 245, there was a will containing several 
 clauses. The first clause gave a life estate in certain realty to the testa- 
 tor's wife ; the seventh, a remainder in fee in the same to the testator's son. 
 The ninth provided that in case the son died without leaving issue, the ex- 
 ecutors should see that the will was carried into effect ; and the tenth and 
 eleventh clauses gave the land in fee to other persons, without mentioning 
 the widow. The son died without issue. The Court held that the tenth 
 and eleventh clauses did not destroy the life estate given to the widow, but 
 were merely substitutionary bequests of what had been given to the son, 
 and the devisees would take the fee, subject to the same life estate as that 
 to which the son's fee was subjected. 
 
 In Wilson v. McKeehan, supra, the devise was " to my wife and three 
 children, all the proceeds of my farm during her natural life. ... If all 
 my children should die before my wife, I allow my wife one-half of my real 
 estate." The other half was devised over. The children all died before 
 their mother, and it was held that her life estate in the half devised over 
 was not destroyed. See also JBeekman v. Hudson, 20 Wend. 53 ; Boundtree 
 V. Talbot, 89 lU. 246. 
 
 Rights and Liabilities. Bents and Profits. 
 
 The life tenant is entitled to all the rents and profits of the land accru- 
 ing during the term of his estate, absolutely, Forsey v. Luton, 2 Head. 183 ; 
 McCampbell v. Me Campbell, 5 Litt. (Ky.) 92; Brooks y. Brooks, 12 S. C. 
 422. On the death of the life tenant such profits will go to his executors, 
 although the estate is held under a will which provides that none of the 
 property shall be sold before the death of the life tenant, " but the same, 
 together with the increase thereof, shall be kept together," Tatum v. McLel- 
 lan, 56 Miss. 852, and rents accruing, but not due at the time of the death 
 of the life tenant, will be apportioned between his estate and the remain- 
 der-man, Borie v. Crissman, 82 Pa. St. 125. A life tenant may permit the 
 occupation of her land by another without the payment of rent, Mc Camp- 
 bell v. McCampbell, supra. 
 
204 Jackson v. Van Hoesen. 
 
 Kight to Possession where Necessary for Eijjoyment of the Life 
 Estate. 
 
 If possession is necessary for the foil enjoyment of a life estate, a court 
 of equity will put the equitable life tenant in possession as against his trus- 
 tee, WiMamson ¥. WilMns, 14 Ga. 416. 
 
 Right to Proceeds in Case of Sale of Estate. 
 
 If an estate is sold, the life tenant has a right to the prooeeds thereof for 
 life, Styer's Appeal, 2 Grrant 249. 
 
 Liimitatiom of Right of Recovery for Dams^ge to the Realty. . 
 
 In case ■any damage is done to the real estate^ the right of recovery of 
 the life teaiant is limited to the amount of damage done to the life estate, 
 Sagar v. Eekert, 3 Bradw. 412, and where, by virtue of the exercise of the 
 right of eminent domain, the land is taken for public purposes, as -a railroad 
 or other work of a more etrictiy public character, the life tenant will be 
 entitled to receive separate damages for the iffljury dcxae to his life interest, 
 Joyner v. Conyers, 6 Jones Eq. 78 ; Pittsbwrgk, Virginia, and Charlestown R. 
 B. V. BenUeg, 6 W. N. C. 289-; Borough (^ Sarrisburg v. Orangie, 3 W. & 
 S. 460, and the rule, where general damages are given for the taking of 
 land, is that they beloag to the life temamt and remainder-man in propor- 
 tion to the inconvenience suffered by each, Joyner v. Conyers, sypra. The 
 life tenant may bring Ms action without joining the remainder-man, R. R, 
 V. Boyer, 13 Pa. St. 496. 
 
 Liability of Life Estate for Dehts of Life Tenant. 
 
 The life estate is Eable for the debts of the life tenant, and a levy on the 
 land itself for his debts wUl be uphdd. as a levy on the estate, Roberts v; 
 Whiting, 16 Mass. 186, and, when levied upon, the life estate should be 
 appraised as should any other estate of freehold, and only such portion 
 taken as, including the debtor's whole interest, will be sufficient to pay the 
 debt, Wheeler v. Gorham, 2 Eoot 328. 
 
 Enihlements. 
 
 The life tenant has the right to crops of wheat or other grain growing at 
 the time of his death, ag emblements, Poindexter v. Poindexter, 1 Ired. Eq. 
 286 ; Perry v. ToUier, 1 Dev. & B. Eq. 441 ; Hunt v. Watkins, 1 Humph. 498 ; 
 but uncut grass standing at the time of the death will not be regarded as 
 within the term emblements. The reason for this distinction is stated by 
 
Jackson v. Van Hoesen. 205 
 
 Bead, J., in Reiffy. Reiff, 64 Pa. St. 134 : " The vegetable chattels called 
 emblements are the corn and other growth of the earth which are produced 
 annually, not spontaneously, but by labor and industry, and thence are 
 called /rwcto industriales. The growing crop of grass, even if grown from 
 seed, and though ready to be cut for hay, cannot be taken as emblements, 
 because, as it is said, the improvement is not distinguishable from what is 
 natural product, although it may be increased by cultivation." 
 
 Estovers. 
 
 The tenant for life is entitled to proper estovers, and may take from the 
 land the wood necessary for his fuel, fencing, and necessary repairs, Elliot 
 V. Smith, 2 N. H. 430 ; SmMiY^JewM, 40 Id. 530 ; Smith v. Poyas, 2 Dess. 
 65, and the right to fuel will embrace a right to take fuel not only for the 
 house of the life tenant, but also for the use of a servant or farmer who 
 cultivates the land for the life tenant. Smith v. Jewett, supra, and it has been 
 held that the fuel may be so taken even if the servant resides on an adjoin- 
 ing tract, Gardiner v. Deri7ig, 1 Paige 573 ; but it would seem that this 
 extension of the right to fire bote must be exercised in accordance with 
 the circumstances, of the case. Thus, in Sarles v. Sarles, 3 Sand. Ch. 601, 
 a life tenant of a tract of some one hundred^and sixty -five acres was held 
 not entitled to take fiiel from the land for the supply of the dwelling-house 
 of his farmer, in addition to the supply necessary for his own house, and it 
 was also held that a custom to that efiect would be unreasonable and invalid. 
 He has no right to cut timber for sale or to sell it when cut, for, as said in 
 Miles V. Miles, 32 N. H. 147, when it is permitted to the tenant to cut wood 
 or timber for purposes disconnected with the premises, he is no longer using 
 his life estate in the land, but is converting to his own use the permanent 
 growth of the earth. See also Johnson v. Johnson, 18 N. H. 694. He will 
 not be allowed to sell timber, although the amount sold be less than he 
 wo"!!}^ have a right to consume for proper purposes, Fuller v. Wason, 7 N. 
 H. 341, and although the timber sold were disposed of to procure fiiel or 
 to pay for the expense of bringing it to the house, Paddelford v. Paddelford, 
 7 Pick. 152. The same rule will, of course, apply to a case where the wood 
 w^ sold to defray the expense of repairs ; but in Loomis v. Wilbur, 5 Mason 
 13, Stoey, J., applied a different rule, & follows : " If the cutting down 
 of the timber was without any intention of repairs, but for sale generally, 
 the act itself would doubtless be waste ; and if so, it would not be purged 
 or its character changed by a subsequent application of the proceeds to 
 repairs. But if the cutting down and sale were originally for the puicptise 
 of repairs, and the sale was an economical mode of making the repairs, and 
 18 
 
206 Jackson v. Van Hoesen. 
 
 the most for the benefit of all concerned, and the proceeds were bona fide 
 applied for that purpose, in pursuance of the original intent, it does not 
 appear to me to be possible that such a cutting down and sale can be waste. 
 It would be repugnant to the principles of common sense that the tenant 
 should be obliged to make the repairs in the way most expensive and inju- 
 rious to the inheritance." 
 
 The ruling in this case has been explamed, by Mr. Washburn and others, 
 on the ground that it was in a "hard" case. The tenant had only cut 
 some ten or fifteen trees, was very poor, and unable otherwise to make 
 necessary repairs. All the trees, except one or two, were sold to buy boards 
 for the said repairs, and it was shown to the Court that by this means the 
 repairs could be most advantageously and economically made. It is 
 thought, however, that while there can be little doubt of the substantial 
 justice done by the decision, it is not of sufficient authority to establish a 
 rule that a sale of wood may be made if thereby repairs may be most eco- 
 nomically made. To establish such a rule would open wide a door for 
 litigation, if not for fraud. 
 
 Kight to work Mines, Quarries, or Pits. 
 
 The tenant for life has tiie right to work mines, quarries, clay-pits, or 
 sand-pits, opened or used by former owners. Executors of Reed v. Reed, 16 
 N. J. Eq. 248; Billings v. Taylor, 10 Pick. 460; Cbafesv. Cheever, 1 Cow. 
 460 ; Rockwell v. Morgan, 2 Beas. 389 ; Neel v. Ned, 19 Pa. St. 324 ; 
 Lynn's App., 31 Id. 44 ; nor will such right be limited or restrained by a 
 statute providing that the tenant for life shall have " reasonable and neces- 
 sary use and enjoyment" of the land, Irwin v, Covode, 24 Pa. St. 162 ; the 
 work may be without stiat, and it is permissible to open new pits or shafts 
 into the mine or pit, Orouch v. Puryear, 1 Hand. 258 ; Kier v. Peterson, 41 
 Pa. St. 367 ; Westmoreland Goal Go's Appeal, 85 Id. 344, but the opening 
 must be made or the mining conducted on the same tract already opened 
 and worked, and therefore where there were two tracts, on one of which a 
 shaft had been sunk, while on the other the ground was not broken, sepa- 
 rated by another which did not belong to the tenant for life, and a vein of 
 coal extended under all three tracts, it was held that the tenant for life 
 could not mine under and take coal from the unopened tract, nor could his 
 lessee, although the owner of the intermediate tract, Westmoreland Coal 
 Co.'s Appeal, supra. 
 
 A life tenant has no right to open new mines, Coates v. Cheever, 1 Cow. 
 460, or to dig soil and use woo<l for the purpose of making brick, Living- 
 ston V. Reynolds, 2 Hill 157. 
 
Jackson v. Van Hobsen. 207 
 
 A question sometimes arises how far a mine which has been opened and 
 worked, and then has been left idle for a number of years, is to be consid- 
 ered an open mine, so that it may be lawfully worked by the life tenant. 
 In Gaines v. Green Pond Iron Alining Company, 32 N. J. Eq. 96, the pre- 
 decessor in title of the life tenant had worked a mine in 1812 or 1814, and 
 then ceased work, and allowed the mine to remain undisturbed until his 
 death in 1872. The Chancellor held that the long non-use showed an 
 abandonment of the property as mining property, and that the life tenant 
 had no right to work the mine. The decree was, however, reversed by the 
 Court of Errors and Appeals in 32 N. J. Eq. 603, and the following rule was 
 laid down by Van Syckel, J., in delivering the opinion of the Court : " The 
 rule by which the right of the ^ life tenant to work open mines is to be 
 tested is not the length of time that may have elapsed since the last work- 
 ing of the mines, but it depends upon whether the owner of the fee merely 
 discontinued the work for want of capital Or because it did not prove 
 profitable, or for any other like reason, or whether he abandoned it with 
 an executed intention to devote the land to some other use." 
 
 Oblig'ation to Repair^ 
 
 The life tenant is bound to keep the property in repair so far as is neces- 
 sary to prevent it from falling into dilapidation, Brough v. Siggins, 2 
 Gratt. 408 ; Cochran v. Cochran, 2 Dess. 521 ; Ex'rs of Kearney v. Kearney, 
 17 N. J. Eq. 59, Id. 504. As said by Zabeiskie, Ch., In re application 
 for the sale of the lands of Mary E. Steele, an infant, 19 N. J. Eq. 120, " the 
 life tenant is bound to keep the premises in as good repair as they were in 
 when he took them, not excepting ordinary wear and tear ; if a new roof is 
 needed, he is bound to put it on ; if paint wears off, he is bound to repaint." 
 See also Piper's Estate, 2 W. N. C. 711 ; Wilson v. Edmonds, 24 N. H. 517. 
 He is not bound, however, to expend any extraordinary sum, Wilson v. Ed- 
 monds, supra ; Brooks v. Brooks, 12 S. C. 422, nor to rebuild where buildings 
 have been destroyed by the act of God, Brooks v. Brooks, supra. 
 
 Permanent Improvements— Fixtures. 
 
 If permanent improvements are made by the tenant for life, they will 
 become part of the inheritance, and the tenant will not be permitted to call 
 on the remainder-man to contribute to the expense thereof, the rule being 
 that the life tenant can neither repair nor make permanent improvements 
 at the expense of the inheritance, 8ohier v. Eldredge, 103 Mass. 345 ; Aus- 
 tin v. Stevens, 24 Me. 620 ; Thurston v. Dickinson, 2 Rich. Eq. 317 ; Merritt 
 
208 Jackson v. Van Hoesen. 
 
 V. Scott, 81 N. C. 385. The rule is not, however, without exception. Thus 
 where the improvement consists of the tenant for life going on with and 
 finishing an improvement permanently beneficial, and which has been begun 
 by the donor of the estate, the remainder-man may be required to contrib- 
 ute, Corhett v. Laur'ena, 6 Rich. Eq. 301 ; Sohier v. Eldredge, supra. See 
 also Ex parte Palmer, 2 Hill, Ch. 217 ; and it has been held that in such 
 cases the putting of a building into a tenantable. condition may be a charge 
 on the estate at large, while the keeping it in repair afterwards should fall 
 on the life tenant, Parsons v. Winslow, 16 Mass. 361 ; Sohier v. Eldredge, 
 supra. It is also held that where the life tenant has made an improve- 
 ment for the benefit of himself and the remainder-man, and the property is 
 subsequently sold to promote the interests of both, the life tenant is entitled 
 to be allowed the value of the improvement at the time of the sale, 0am- 
 bril V. Oambril, 3 Md., Ch. 259. 
 
 If a house is built by the reversioner upon the land of the life tenant 
 with his consent, the house becomes part of the realty, and the assignee of 
 the reversioner cannot enter upon the house and hold the same against the 
 tenant for life, Cooper v. Adams, 6 Gush. 87. 
 
 The question how far the relaxation of the rule that whatever is annexed 
 to the freehold becomes part of the inheritance, which has obtained to so 
 great an extent between a tenant for years and his landlord, has been recog- 
 nized in favor of a life tenant, is one, perhaps, not satisfactorily settled. In 
 Buckley v. Buckley, 11 Barb. 43, Hand, J., was " inclined to think that a 
 tenant for life who erects a fixture for the purposes of trade or manufactur- 
 ing had an equal right in respect to their removal with a tenant for years.'' 
 The learned judge, however, admitted that the cases had not generally 
 gone that far, and the current of authority is to the effect that much less 
 liberty of removal will be allowed to a tenant for life than to one for 
 years. See Austin v. Stevens, 24 Me. 524 ; Doak v. Wiswell, 38 Id. 519 ; 
 White v.Arndt, 1 Whart. 91; McCidlough v. Irvine's Ex'rs, 13 Pa. St. 438. 
 In Cannon v. Hare, 1 Tenn. Ch. 22, Chancellor Cooper thus states his 
 view of the result of the authorities : " I take it, therefore, that a tenant 
 for life or his representatives are not entitled to remove buildings of a per- 
 manent character, and that permanency may be predicated of all buildings 
 which appear, either by the intention of the party erecting them, the man- 
 ner of attachment to the soil, or the uses to which they are put, to have 
 been designed as additions to the freehold or to enhance its income or con- 
 venience. It is probable, also, that the exception in favor of buildings 
 erected for the purposes of trade will be limited in the case of a tenant for 
 life to such as are erected for the purposes of trade proper, and will not be 
 extended to occupations having an affinity or resemblance to trade," and 
 
Jackson v. Van Hoesen. 209 
 
 suggested as a reason for the distinction the following : " Tenants for life 
 are usually widows as dowresses, or husbands as tenants by curtesy or 
 devisees under wills, with remainders to children or other blood relations ; 
 the persons entitled on remainder in such eases are ordinarily those nearest 
 in ties of afiection and blood to the tenant of the life estate. It may be 
 well presumed, as between such parties, that improvements put upon the 
 property by the life tenant are not designed for the temporary use of such 
 tenant, but as permanent additions." 
 
 (For a discussion of the question of fixtures, see Vol. II.) 
 
 Obligation to Keep down Interest upon Incumbrances, but not 
 to Contribute to their Extinction. 
 
 The tenant for life is bound to keep down the interest of incumbrances 
 upon the estate, Cogswell v. Cogswell, 2 Edw. 231 ; Hunt v. Watkins, 1 
 Humph. 498 ; McDonald v. Seylin, 4 Phila. 73 ; Ifosely v. Marshall, 27 
 Barb. 42 ; Jones v. Sherrard, 2 Dev. & B. Eq. 179 ; Barnum v. Barnum, 42 
 Md. 251 ; Jewell's Estate, 1 W. N. C. 404 ; but he is not bound to contrib- 
 ute to the extinction of the principal, Cogswell v. Cogswell, Jones v. Sherrard, 
 Mosely v. Marshall, supra; and if he does so contribute he will be entitled 
 to a credit of the amount of his contribution as against the remainder-man, 
 Hunt V. Watkins, supra, and hence if the life tenant purchase any portion 
 of the principal of a debt which is an incumbrance upon the estate, the 
 presumption is that it was purchased for the benefit of the life tenant him- 
 self, Barnum v. Barnum, supra, and if a mortgage is called in by the mortga- 
 gee the remainder-man must pay his proper share of the mortgage money, 
 Cogswell v. Cogswell, supra. 
 
 If the life tenant allow the arrears of mortgage to remain unpaid so that 
 the land is sold on an execution by the mortgagee, he is liable in damages 
 to the remainder-man. Wade v. Malloy, 16 Hun. 226. 
 
 Where a debt, which is a charge upon the land, is not established until 
 after the death of the life tenant, his estate cannot be. called upon to con- 
 tribute to the payment of either principal or interest, Poindexter's Ex'rs v. 
 Green's Ex'rs, 6 Leigh 504. 
 
 Obligation to pay Ordinary Taxes. 
 
 The tenant for life must also pay the ordinary taxes upon the land held 
 
 by him, Varney v. Stevens, 22 Me. 331 ; Patrick v. Sherwood, 4 Blatch. 112 ; 
 
 Cairns v. ChabeH, 3 Edw. 312; McDonald v. Heylin, 4 Phila. 73; Fleet v. 
 
 Dorland, 11 How. Pr. 489 ; Johnson v. Smith, 5 Bush. 102 ; Wade v. Malloy, 
 
 18* O 
 
210 Jackson v. Van Hoesex. 
 
 16 Hun. 226 ; JeioeU's Est., 1 W. N. C. 404 ; Pip&r's Est, 2 Id. 711 ; Fox y. 
 Long, 8 Bush. 551 ; and if he neglect or refuse to pay the taxes, and suffer 
 the land to be sold, and buy it in, he will not be allowed to set up the tax 
 title against the remainder-man or reversioner, for that would be taking ad- 
 vantage of his own wrong, Patrick v. Sherwood, supra. In Ohio a life ten- 
 ant suffering a sale of his land for taxes, forfeits his life estate, and will not 
 be allowed to redeem the land. McMillan v. Eobbins, 5 Ohio 28. 
 
 In the case of Cairns v. CJiabert, 3 Edw. 312, it was intimated by the 
 Vice-Chancellor, in the course of his opinion, that the rule requirmg the 
 life tenant to pay the taxes, ought not to apply to those extraordinary 
 taxes levied for municipal improvements and permanently beneficial to the 
 land, known as assessments. The matter has been regulated in New York 
 by the act of May 26, 1841, § 1, Laws of 1841, ch. 341, according to the 
 terms of which the amount of the assessment is divided equitably between 
 the life tenant and the remainder-man, Fleet v. Borland, 11 How. Pr. 489 ; 
 Stillwell -v. Doughty, 2 Bradf. 311; Estate of Miller, 1 Tuck. 346; Gunning 
 V. Carman, 3 Eedf 69. The same rule has been adopted elsewhere inde- 
 pendently of any statute, and certainly is accordant with the rule'of equity, 
 Qui sentit commodum sentire debet et onus. In Plympton v. Boston, 106 
 Mass. 547, the Court says: "Assessments for permanent improvements 
 must be treated as an incumbrance to which the life tenant must contrib- 
 ute to the extent of the interest during his life on the amount paid at his 
 death. . . . Strict adherence to this rule would require the tenant for life to 
 pay interest annually, though for convenience the value of such an annuity 
 is usually paid at once." 
 
 This rule of contribution must be confined to cases of assessments for 
 permanent improvements, and therefore, where the improvement required 
 by a local ordinance or statute is of such character that, from its nature, it 
 will require frequent renewals, the expense of such improvement must be 
 borne by the life tenant alone, Hitner v. Ege, 23 Pa. St. 306. 
 
 In the case of Whyie v. Mayor and City of Nashville, 2 Swan 364, the 
 distinction above 'noted between the widow's obligation as to ordinary 
 taxes and as to assessments for permanent improvements seems to have been 
 ignored by the Court. In that case, counsel argued that the city's claim 
 for permanent improvements should have been brought against not only 
 the life tenant but the remainder-man. The Court, however, took no notice 
 of the argument in its opinion, and seemed, so far as it spoke of the widow 
 at all, to regard her as, at least, primarily liable for the entire amount of 
 the assessment ; the case, however, went off on another point, viz., that the 
 notice required by law had not been served by the proper officer. 
 
Jackson v. Van Hoesen. 211 
 
 Life Tenant not Bound to Insure. 
 
 The life tenant is not bound to insure the premises for the benefit of the 
 remainder-man, but where insurance is desirable each* should pay for the 
 insurance of his respective estate, Ex'rs of Kearney v. Kearney, supra. In 
 case of the partial destruction of the insiired premises, either the life tenant 
 or the remainder-man has the right to require the insurance money to be 
 applied to the repair of the property, Brough v. Higgins, 2 Gratt. 408 ; in 
 case of a total loss, the fund, arising from a general insurance, is substituted 
 for the destroyed property, and the life tenant will be entitled to the interest 
 for life, and the remainder-man to the principal, Haxall's ExWs v. Shippen, 
 10 Leigh 536 ; Graham v. Roberts, 8 Ired. Eq. 99. 
 
 Waste. 
 
 At common law the tenant for life was not liable for waste, but this 
 liability was placed upon him by the statute of Marlebridge, 52 H. 3, c. 23, 
 which gave the right to the owners of the inheritance to recover damages 
 for the waste committed, and by the statute of Gloucester, 6 Ed. I., c. 5, 
 which gave the right to recover the place wasted with treble damages. 
 
 In this country the liability of the tenant for life for waste, unless made 
 expressly unimpeachable therefor, has been generally recognized, Johnson 
 V. Johnson, 18 N. H. 594; Sackett v. SacJcett, 8 Pick. 314; Chase v. Hazelton, 
 7 N. H. 171 ; MiUer v. Shields, 55 Ind. 71 ; Smith v. Daniel, 2 McC. Eq. 
 143 ; Ned v. Neel, 19 Pa. St. 324; B^arnatte v. Allen, 5 Gratt. 499, and 
 this liability will extend to the alienee of the tenant for life, Dejarnette v. 
 Allen ; but the commission of waste by the life tenant will not enable the 
 remainder-man or reversioner to recover the place wasted in ejectment, such 
 a recovery being attainable only by the action of waste, Patrick v. Sher- 
 wood, 4 Blatch. 112; Robinson v. Miller, 2 B. Mon. 284. 
 
 It is waste, and the life tenant must account therefor, to cut wood except 
 for the purposes of estovers, Phillips v. Allen, 7 Allen, 116 ; Whits yt fJvMer, 
 17 Pick. 248; Cooh v. Cooh, 11 Gray 123; Sargeant v. Tovme, 10 Mass. 307, 
 and it is no "defence to show that a quantity of fire-wood, equal in amount 
 to the wood taken away, was brought upon the premises, Phillips v. Allen. 
 Under some circumstances, however, it will not be waste to cut timber, as 
 where the land in which the life estate is, is timber-land, and derives its value 
 therefrom, as in Williardy. Williard, 56 Pa. St. 119, where Agnew, J., said: 
 " In considering the question of waste by a life tenant, respect must be had 
 to the nature of the property. Here the evidence proves clearly that the 
 tract was bought by Jacob and John as timber-land, that this was its chief 
 
212 Jackson v. Van Hoesen. 
 
 value, and that they were both engaged in cutting and rafting timber from 
 it. The timber was the intended source of profit, and the parties treated it 
 accordingly." Where there is a right to work mines there is also the right 
 to use the timber necessary for that purpose, Neel v. Neel, 19 Pa. St. 324 ; 
 Findlay v. Smith, 6 Munf 134 ; and it has also been held, it is not waste 
 for a tenant for life to cut wood for the purpose of clearing the land for rea- 
 sonable cultivation, Hastings v. Orunekleton, 3 Yeates 261 ; Lynn's Appeal, 
 31 Pa. St. 44, and on a petition of the tenant for life, it has been referred 
 to a master to ascertain whether cutting of timber would be for the benefit 
 of the estate, Bennett v. Danville, 56 N. H. 216. 
 
 As we have seen (ante, pp. 206, 207), it is not waste for a tenant for life to 
 work mines already opened, even to exhaustion, but it is waste if he open 
 new mines. 
 
 The privileges of a life tenant are much greater in this country than in 
 England, and in all cases of waste the presumption is in favor of the life 
 tenant, and must be overthrown by clear testimony. 
 
 In a proper case a court of equity will issue an injunction to restrain a 
 life tenant from committing waste, since equity regards a life tenant in the 
 light of a trustee for those in remainder. Smith v. Daniel, 2 McC. Eq. 143 ; 
 Smith v. Poyas, 2 Dess. 65 ; Sarles v. Sarles, 3 Sand. Ch. 601. , 
 
 [On the subject of Waste in general, see postJ] 
 
 Conveyance by Tenant for Life. 
 
 The tenant for life may convey his own estate oi* any less estate created 
 out of it, Jackson ex d. Murphy v. Van Hoesen, 4 Cow. 325. 
 
 It was formerly held that a conveyance by the tenant for life, in fee, 
 worked a forfeiture of his life estate, but this rule was confined to cases in 
 which the conveyance was a feoffment with livery of seizin, a common recov- 
 ery or a fine, and did not apply to conveyances under the statute of uses, 
 Pendleton v. Vandemer, 1 Wash. (Va.) 381 ; Bell v. Tvnlight, 22 N. H. 500 ; 
 Jackson ex d. MeOrea v. Mancius, 2 Wend. 357 ; but it was, at a quite early 
 date, denied that the rule of forfeiture was the law in parts of this country. 
 In Martin v. Sterling, 1 Root 210, the Court said that " the forfeiture by grant- 
 ing a greater estate than he hath in the lands is borrowed from the feudal 
 system, but, by the law of reason and common sense, and the law of this 
 State, a man's deed shall be good and valid for so much as he hath right 
 to, and void for the rest," and in Rogers v. Moore, 11 Conn. 553, the same 
 doctrine was enunciated and enforced, Huntingdon, J., saying : " The prin- 
 ciples on which the English law of forfeiture is founded are as inapplicable 
 
Jackson v. Van Hoesen. 213 
 
 to our condition and circumstances as they are, in the consequences result- 
 ing from them, unjust and inequitable." 
 
 Even where the decided ground above maintained has not been taken, 
 yet there has always been in the courts of this country a tendency so to 
 construe the deed of a tenant for life as to avoid a forfeiture— thus in JacJc- 
 son ex d. Murphy v. Van Hoesen, supra, it was decided that a conveyance 
 by a tenant for life without any words of limitation to a natural person 
 will be held to be a conveyance for the life of the grantor for that estate 
 he might legally grant, and in Jackson ex d. McOrea v. Manaius, supra, 
 where the life tenant made a deed in fee, it was held that a life estate only 
 was conveyed, it not appearing from the deed that a tortious conveyance 
 had been made, and Savage, C. J., declared that the Court would never 
 presume a conveyance to have been made by feoffment. 
 
 At the present day the rule may be said to be that the effect of a deed 
 by a tenant for life, purporting to give a greater estate than that of which 
 he is seized, will be to pass an estate for the life of the grantor, and to be 
 void for the residue, McCorry v. Kinc/'s Heirs, 3 Humph. 267, and a con- 
 veyance by life tenant in fee will not affect remainders, although in form 
 contingent. Smith v. Cooper, 59 Ala. 494. 
 
 Tenant for Liife not Permitted to set up Outstanding Title 
 against the Owner of the Fee or to claim the Fee by Matter 
 of Record. 
 
 A tenant for life will not be allowed to purchase an outstanding adverse 
 title, and set it up against the reversioner or remainder-man, Caufman v. 
 Presbyterian Congregation of Cedar Spring, 6 Biun. 59 ; and at common law 
 it involved a forfeiture if the life tenant claimed the fee of record ; it has 
 been held, however, that such a claim made in the course of an equity pro- 
 ceeding would not work a forfeiture, a court of equity not having formerly 
 been a court of record. Forfeiture also followed from an admission that 
 the reversion was in a stranger, or from accepting it as a gift from him, 
 but this does not appear to be law in the United States. In Rosseell v. 
 Jarvis, 15 Wise. 671, it is said by Paine, J., " Under the common law 
 rule, that if the tenant for life or years admitted of record that the fee was 
 in a stranger, he forfeited his estate, and the authorities show that such 
 was the common law rule. But no case was referred to, and we have not 
 been able to find anywhere the doctrine was ever adopted in this coun- 
 try." The Court declined to decide whether the rule were law in this 
 country or not, but. held that, at all events, it would not enforce it in any 
 case which did not come strictly within its letter, and therefore held that 
 the acceptance of a deed from a stranger, and putting it upon record, 
 
214 Jackson v. Van Hoesen. 
 
 would not be held equivalent to admission of record so as to work a for- 
 feiture. 
 
 Condltiens attached to Life Estate. 
 
 Conditions wticli will work a forfeiture may be attached to the gift of a 
 life estate ; the condition must, however, be clearly expressed, as in case of 
 any doubt the life estate will be upheld, see Oraig v. Watt, 8 Watts 498 ; ia 
 cases where the estate is created by devise, the following rule, laid down by 
 TuEHEE, V. C, in Rochford v. Sackman, 9 Hare 481, is cited with appro- 
 bation by the Supreme Court of Tennessee, in Scruggs v. Murray, 2 Lea 
 44 : " The true rule I take to be this : the Court is to collect the intention 
 of the testator, whether his intention was that the life interest should not 
 continue ; and it is to collect the intention from the whole wUl, lookiftg to 
 the primary disposition for the purpose of seeing to what extent the interest 
 is given, and to the ulterior disposition for the purpose of seeing to what 
 extent and in what events the primary disposition is defeated. If, on the 
 one hand, the Court, upon this examination, finds that there is a limitation 
 over, and that it meets the event which has occurred, it is plain that the 
 testator did not intend the life estate to continue in that event, and it ceases 
 accordingly ; but if, on the other hand, the Court, upon examination, finds 
 that the limitation over does not meet the event which has occurred, there 
 is no evidence of the testator's intention that the life interest should not 
 continue in that event, and it therefore continues." 
 
 Partition by Tenants for Life. 
 
 Tenants for life cannot make partition so as to bind those in remainder, 
 Austin V. Rutland R. R. Co., 45 Vt. 215. 
 
 Valuation of Life Estate. 
 
 It irequently becomes an object of some importance to ascertain the value 
 of a life estate, either for^ the purpose of dividing equitably the proceeds 
 of land when sold, between the life tenant and the remainder-man, or for 
 the purpose of ascertaining in what proportions a burden, chargeable upon 
 both, should be borne by each. Of course, the real and absolute value of 
 a life estate cannot be accurately determined imtil after its termination, 
 and the best that can be done is to arrive at an approximation to its value. 
 
 The question of the valuation of a life estate came before the Court of 
 Chancery in England as early as the year 1661, and the Court valued the 
 
Jackson v. Van Hoesen. 215 
 
 life estate and the remainder at respectively one-third and two-thirds of 
 the fee. Rowel v. Sharp, 1 Ch. Rep. 219. This proportion was persisted in 
 until 1718 ; see Cornish v. Mew, 1 Cas. Ch. 271 ; Brent v. £est, 1 Vern. 
 70 ; Clyat v. BaUeson, Id. 404 ; Thynn v. Duvall, 2 Id. 117 ; Balkt v. 
 Sprainger, Prec. Ch. 62 ; Flud v. Flvd, 2 Freem. 210 ; Loch v. Loeh, 2 Vern. 
 667; with an exception in 1692, where, in a decree apportioning the burden 
 of paying off an incumbrance, the court directed that the remainder-man 
 pay three and the life tenant two fifths, James v. Hales, 2 Vern. 267. The 
 cases seem to have been decided by an adherence to an arbitrary rule, with- 
 out taking into consideration the condition and health of the life tenant, 
 and other circumstances which would render probable the greater or less 
 continuance of the life estate. In 1718, in Freembult v. Dedire, 1 P. Wms. 
 429, the Court ordered an estimate of the value of the life estate to be made, 
 based upon the probabiUty of life of the life tenant. This was followed 
 in later cases, and in 1785 the one-third rule was put aside as unjust, and 
 the valuation with reference to probabiUty of life declared to be a proper 
 rule. Nightingale v. Lawson, 1 Brown C. C. 440. For the purpose of ascer- 
 taining the probability of life, the various tables of mortality and expecta- 
 tion of life, such as Halley's, Price's, the Northampton and Carlisle tables 
 were used. See Heatheote v. Paignon, 2 Br. C. C. 167 ; Griffith v. Spratley, 
 1 Cox 389 ; Stone v. Theed, 2 Br. C. C. 243 ; WhUe v. White, 4 Ves. 24; 
 Penrhyn v. Hughes, 5 Id. 107. 
 
 In this country various methods have been used, and various systems of 
 calculation adopted, to determine the value of a life estate. In Garland v. 
 Exe&dors of Grow, 2 Bailey 24, the Court considered a life estate worth 
 seven years' purchase, and, to arrive at its value, said that interest should 
 be computed on the value of the fee for seven years, and perhaps interest 
 on the several sums of annual interest from the time of the estimation, 
 which should be deducted. From an early period the courts, however, took 
 into consideration the probabilities arising from all sources ; thus, in Cassa- 
 nave v. Brooke, 3 Bland 267 (note), the Chancellor took into consideration 
 the age and health of a widow as ingredients of valuation of her life estate. 
 This was followed in Greenwood v. Clarke, Id. 268 (note), and in Dorsey v. 
 Smith, Id. 271, the Chancellor having adopted the computation of life con- 
 taiued in the Halley tables, his decree was reversed, and the rule in Cassa- 
 nave v. Brooke applied. In Maryland a table or sliding-scale of valuation 
 of life estates has been adopted by the Court, varying from the case of a 
 healthy person under thirty years of age, whose estate is valued at one-half 
 of the fee, to that of a healthy person over seventy-seven, whose estate is 
 valued at three-twentieths. See Williams' Case, 3 Bland 221, and the in- 
 structive opinion therein. 
 
216 Jackson v. Van Hoesen. 
 
 The mortality tables are generally regarded as not authoritative, but as 
 assistants in estimating the value of a life estate, Greer v. Mayor of New 
 York, 1 Abb. Pr. K S. 206; Sagar v. EckeH, 3 Bradw. 412; Gunning v. 
 Carman, 3' Eedf. 69 ; Shippen and Bobbins's Appeal, 80 Pa. St. 391, and the 
 general rule here is that regard must be had to all the circumstances of the 
 case — ^the health, age, and habits of the life tenant, the rental value of the 
 land, the amount of taxes and probable cost of repairs — in estimating the 
 value of the life interest. See cases, supra, and Swaine v. Ferine, 5 John. 
 Ch. 482 ; Jones v. Sherrard, 2 Dev. & B. Eq. 179 ; Games v. Polk, 5 Heisk. 
 244. In Atkins v. Kron, 8 Ired. Eq. 1, Puffin, C. J., stated as a difficulty 
 in the way of ascertaining the value of a life estate the fluctuation in the 
 price of land to which some parts of the country are especially liable. 
 
 As to the proper time at which the value of the estate should be taken, 
 the rule is that the value of the life estate should be taken as at the time 
 the burden fell upon the estate, or the conversion thereof into money took 
 place. This rule has sometimes been enforced where its application resulted 
 in a failure of justice. Thus, in Foster v. Hilllard, 1 Story 77, land in 
 which there was a life estate was sold, and, before distribution of the pro- 
 ceeds, the life tenant died. It was contended by those in remainder that 
 he was only entitled to the exact amount of the interest of the principal 
 for the time during which he actually lived ; but Stoey, J., said, " I think 
 it [the apportionment of the fund] must be according to the value of the 
 life of the tenant for life at the time of the sale, according to the common 
 tables. If I am right in the opinion already stated, that the rights of the 
 parties were absolutely fixed at the very time of the sale, then it follows, as 
 a necessary consequence, that they are entitled to share in the proceeds 
 according to the relative values of their respective interests in the estate at 
 the time of the sale. ... It strikes me, therefore, that the true rule in the 
 present case is to apportion the purchase-money between the tenant for life 
 and the remainder-men according to the relative values of their respective 
 estates at the time of the sale, unafiected by the subsequent events. It is 
 said that the duration of the life of the tenant for life, calculated according 
 to the common tables, was over twenty years, whereas he died in a little 
 less than four years after the sale. Be it so. The event has turned out 
 unfortunately for the remainder-men, as contingent events sometimes do. 
 But the tenant for life might have lived thirty years, and then the appor- 
 tionment would have been favorable to them. The fact, therefore, does not 
 shake the propriety of the rule of apportionment, but it only shows that it 
 has the common elements of uncertainty belonging to all calculations of 
 contingencies. A tenant for life of a mortgaged estate may die within a year 
 after he has been compelled to pay one-third part of the mortgage-money. 
 
Jackson v. Van Hoesen. 217 
 
 upon a decree for redemption, his life having been calculated as worth that 
 proportion of the money. He may, on the other hand, live far beyond the 
 period of average life. Yet the inequality has never been supposed to 
 justify any departure from the general rule of contribution." 
 
 Now, with all deference to so great a name as that of the learned judge 
 whose opinion we have just quoted, the above does not seem right. It is 
 true the rights of the parties were absolutely fixed at the time of the sale ; 
 but what was the right of the life tenant ? It was to receive so much as 
 his life estate was actually worth. If any calculation was to be entered 
 into to ascertain that amount, it was because, owing to the uncertainty of 
 human life, the absolute value could not be then fixed, and for the purpose 
 of settling accounts, and of making a speedy distribution, an approximate 
 value, arrived at through the doctrine of chances, was allowed by the law 
 to be taken ; but when before distribution, and before decree therefor, the 
 actual value of the life estate became fixed, absolutely and certainly, through 
 its effluxion, then the reason for remaining satisfied with an approximation, 
 or of having an approximate valuation made at all, failed, for the court 
 was then able to say with certainty what was the exact sum to which, at 
 the time of sale, each party became entitled. It seems, therefore, to us 
 that the court went very far in upholding a rule, and that the action of 
 the court in Gfunning v. Carman, supra, was more in accordance with the 
 rules of equity. In that case it was necessary to determine the proportion 
 of an assessment for permanent improvements to be borne by the estate of 
 a life tenant who had died. The Surrogate said : " The probabilities arrived 
 at by the Northampton tables are only approximate, and adopted from the 
 necessities of the case, and in particular instances do obvious injustice. In 
 this case the uncertainty of the tables need not be incurred, as all uncer- 
 tainty has been providentially resolved by the death of the Ufe tenant. It 
 is true that sometimes equity adjudges a thing to have been done when it 
 ought to have been done, but such a principle should never be invoked to 
 produce an inequitable result, and certainly any resort to the tables which 
 would impose upon a life tenant the payment of interest for a longer period 
 than he actually enjoyed the estate would be inequitable, and charging him 
 for the use of what he did not enjoy, for the benefit of the remainder-man 
 who did enjoy it. 
 
 " Regarding the assessment as an incumbrance on the premises, for the 
 permanent benefit of the estate, equity seems to require that the life tenant 
 should pay interest upon the incumbrance during the term of his enjoyment, 
 and no longer." 
 19 
 
Estate by the Curtesy. 
 
 JACKSON EX DEM. SWAKTWOUT AND WIFE v. 
 JOHNSON. 
 
 SAME V. BRAINARD. 
 
 Supreme Court of New York, August Term, 1825. 
 
 [Reported In 5 Cowen 74.] 
 
 A, in. 1787, was vested by act of the Legislature, •with, certain lands in fee, 
 in trust for B, a female infant and others, he having power to sell, etc. 
 On the 12th May, 1790, he contracted by his attorney, to sell a farm to 
 E, on his (R's) paying, etc. ; and B took possession under the contract, 
 and began to improve the land ; but soon assigned his contract to J, 
 who, in 1790, succeeded him in the possession. B, the male cestui que 
 trust, being still an infant, intermarried with C, April 7, 1792 ; and on 
 the 5th November, of the same year, A conveyed all the trust property, 
 (including the land contracted for by R,) to the cestui que try,st. After- 
 wards, December 13, 1793, A, the trustee, by his attorney, conveyed 
 the fee to J. During the same year, but at what time in the year it did 
 not appear, B had issue a son born alive by her husband C ; and after- 
 wards, September 30, 1795, a daughter. B died in July, 1797, having 
 attained the age of twenty-one, C, her husband, surviving. The son 
 died intestate and unmarried, in 1816 ; and his father, the husband of 
 B, died in 1817, the daughter surviving. On ejectment, ex dem. the 
 daughter against J, who had held claiming title, from the date of his 
 deed, of December 13, 1793 ; held, first, that his possession was not ad- 
 verse, so as to avoid the deed to the cestuis que trust, for champerty or 
 maintenance ; secondly, that his possession was adverse, from the date 
 of his deed ; but thirdly, as B, the owner, was then under disability, 
 both of infancy and coverture, the statute of limitations should not run 
 against her, till both these disabilities were removed ; that she, or her 
 heirs, should have, in any event, ten years after the removal of her dis- 
 abilities, and at least twenty years after the adverse possession com- 
 menced, within which to enter or bring ejectment ; and fourthly, that C 
 was tenant by the curtesy whether the adverse possession or disseizin 
 took place before or after issue of the marriage ; and fifthly, that this 
 suspendiiM' the right of entry or action, of her heirs, they had yet ten 
 years, within which to bring ejectment, after the estate by the curtesy 
 terminated by the death of her father in 1817. 
 
 218 
 
Jackson v. Johnson. 219 
 
 Jt seems, that a conveyance in fee, to one in trust for others, coupled with 
 power to sell or mortgage, for the purpose of reimbursing to the trustee, 
 certain moneys to be expended about the trust property, does not carry 
 the possession or legal estate to the cestui que trust by virtue of the stat- 
 ute of uses. 
 
 It seems, that where A contracts to convey land to B, on certain conditions 
 being performed, and afterwards conveys accordingly, this is evidence 
 that the previous conditions were performed by B. 
 
 A possession and claim of land, under an executory contract of purchase, 
 is not such an adverse possession as will render a deed from the true 
 owner void for champerty or maintenance ; nor is it such an adverse 
 possession as if continued for twenty years, will bar an entry, within 
 the statute of limitations ; and especially, it is in no sense adverse, as 
 to the one with whom the contract is made. 
 
 To constitute an adverse possession, it must not only be hostile in its incep- 
 tion, but the possessor must claim the entire title ; for if it be subservient 
 to, and admit the existence of a higher title, it is not adverse to that 
 title. 
 
 Yet, it seems, that where one enters under a contract for a deed with A ; and 
 afterwards takes a deed from B, his possession from this time is adverse 
 to A, and if continued for twenty years, will bar A's entry. 
 
 The disability which entitles a party to the benefit of the proviso in the 
 statute of limitations, must exist when the right of entry or action first 
 accrues ; and if several disabilities exist together, the statute does not 
 begin to run until the whole are removed. 
 
 If several disabilities exist together, in the owner of an estate, as infancy 
 and coverture, when the adverse possession commences against her, 
 she, or if she die, her heirs, have at least ten years within which to 
 enter or bring an action, after both disabilities are removed ; and they 
 are entitled to full twenty years, for this purpose, from the time when 
 the adverse possession commenced. Thus, if the disabilities should be 
 removed within three years after the adverse possession commenced, 
 they would not be barred under seventeen years. So if the disabilities 
 should not be removed till twenty years after the adverse possession 
 began, they would still have ten years to enter or bring ejectment. And 
 thus, thirty years' adverse possession, or more, may be necessary to bar 
 an entry or ejectment. 
 
 And though these disabilities be removed, if the right of entry or ejectment 
 be suspended by the intervention of a particular estate, existing at the 
 time of their removal, as a tenancy by the curtesy, initiate, during their 
 existence, and consummate eo instanti that they determine, the owners 
 still have ten years to enter or bring ejectment, after the particular 
 estate determined. 
 
 Cumulative or successive disabilities, such as are mentioned by the proviso 
 in the statute of limitations, are not allowed to stand in the way of the 
 
220 Jackson v. Johnson. 
 
 statute ; but the intervention of a particular estate is not within the 
 rule. Thus, if the disseizin happen during infancy and coverture, and 
 afterwards, before or at the determination of these disabilities, an estate 
 by the curtesy intervene, it is not within the rule ; but the rightful 
 owner shall have yet ten years to enter or bring ejectment, after the 
 estate by the curtesy is determined. 
 
 The statute of limitations does not run against remainder-men or reversion- 
 ers, during the continuance of the particular estate. It was aimed at 
 those who may be guilty of laches in omitting to enter or bring actions ; 
 which cannot be said of remainder-men and reversioners, who have no 
 right in law to do either. And this, whether the particular estate exist 
 at the time of the disseizin, or arise subsequently, provided that in the 
 latter case it be immediately preceded by a disability or disabilities 
 within the proviso of the statute. 
 
 Four things are necessary to constitute a tenancy- by the curtesy : marriage, 
 seizin of the wife, issue and death of the wife. But it is not necessary 
 that seizin and issue should concur together at one time ; and therefore, 
 if the wife become seized of lands during the coverture, and then be dis- 
 seized, and then have issue, the husband shall be tenant by the curtesy 
 of these lands ; and on his wife's death may enter as such ; and, during 
 her life, he is called tenant by the curtesy initiate. So if the wife be- 
 come seized after issue, though the issue die before her seizin. 
 
 As to what shall amount to a seizin ; it is enough that the wife have a tenant 
 in possession, who holds at will, or who entered under a contract to 
 purchase her estate. 
 
 And it seems, that the rule which requires actual seizin, applies only to cases 
 where it is not complete till entry ; as where the estate comes to the 
 wife by descent or devise , not where it comes by purchase, and is trans- 
 ferred into possession by the statute of uses. 
 
 The lessor of the plaintiff sworn as a witness, at the circuit, without objec- 
 tion, in order to prove the loss of a deed. 
 
 Ejectments, to recover an undivided fourth of part of lots 5 and 
 10, in Colden's tract, in Croghan's patent, in the town of Burlington, 
 in Otsego county, tried at the circuit in that county, September, 1823, 
 before Nelson, C, Judge. 
 
 It was admitted that Cadwallader Colden and David Golden were, 
 on the 15th of March, 1770, seized of 1843 acres of land, of which 
 the premises in question were a part. 
 
 The plaintiff gave in evidence, a deed from Cadwallader Colden to 
 David Colden, dated December 12, 1776 ; and by which, lots 5 and 
 10, with others, were released to David Colden. 
 
Jackson v. Johnson. 221 
 
 It was admitted that David Colden's name was in the act of attainder 
 of 1779. 
 
 The plaintiff's counsel' then read in evidence, an act of the Legislature, 
 passed April 21, 1787 ; the first section of which, vested the estate of 
 David Golden, not already sold in Cadwallader Golden, his heirs, exec- 
 utors and administrators, in trust for the children of David Colden, and 
 authorized Gadwallader Golden to bring actions for the recovery of the 
 property in his own name. 
 
 The second section was in the form of a proviso, that Gadwallader 
 Golden should pay into the treasury, in three months, such sums as the 
 land should be appraised at, and deliver to the surveyor-general certain 
 papers belonging to his office and make a certain affidavit. 
 
 The third section directed the commissioners of forfeitures, to have 
 the lands mentioned in a certain location, of the lands of David Golden, 
 made by Gadwallader Colden, appraised ; and authorized Gadwallader 
 Golden, when the terms of the act should be complied with, to sell or 
 mortgage enough of the land to repay himselj any money he might 
 have advanced. 
 
 The plaintiff's counsel then read in evidence, an act of the Legisla- 
 ture, passed January 17, 1789, by which the time of payment to the 
 estate was extended. 
 
 He then read in evidence, a copy of a paper from the comptroller's 
 office, a certificate from the surveyor-general, and an affidavit made by 
 Gadwallader Golden, before the Ghief Justice, by which it appeared that 
 the conditions of the act of 1787 had all been complied with. 
 
 He further read a deposition of Gadwallader D. Golden, taken by 
 consent, by which it appeared that David Golden died in the year 1784, 
 leaving five children, viz. Gadwallader D. still living, Alice Griste, 
 Mary, Elizabeth Anne, and Gatharine. Alice Griste was born in 1768, 
 and died intestate, in 1788, without having been married. Mary was 
 bom in 1770, married J. O. Hoffman, and died in 1797, leaving chil- 
 dren. Elizabeth Anne was born in 1774, was married to E. W. Laight 
 in 1799, and died intestate, in 1800, without having had a child. 
 
 That Gatharine, the fourth daughter, was born November 20, 1775, 
 married Thomas Gooper, April 7, 1792, and died intestate, in July, 
 1797, leaving her husband, Thomas Gooper, and a son Golden, and a 
 daughter, Alice Anne, by him, living. 
 
 That Alice Anne was born September 30, 1795, and married 22d 
 19* 
 
222 Jackson v. Johnson. 
 
 December, 1814, to Samuel Swartwout, who, with Alice Anne, his wife, 
 are the lessors of the plaintiff. 
 
 That Golden Cooper was bom in 1793, and died intestate without 
 having been married, on the 21st of November, 1816. Thomas Cooper 
 died in November or December, 1817. 
 
 It also appeared from this deposition, that Cadwallader Golden, the 
 trustee under the act of 1787, on the 5th of November, 1792, gave the 
 deponent (the son of David Golden) a deed for his undivided fourth of 
 the trust lands, (which deed was produced,) and also that Cadwallader 
 Golden, on the same day executed to Catharine Cooper, the fourth 
 daughter of D. Golden, a deed for her undivided fourth part. Also, 
 that Cathariae Cooper's deed was, in all respects, similar to the deed 
 produced. That these deeds were intended as a full execution of the 
 trust. 
 
 The witness recollected the place where the deeds were signed. It 
 was at Mr. Hofiinan's. The parties assembled there for the purpose. 
 A copy of this deed was annexed to the case. 
 
 The deposition also stated, that long previous to the execution of these 
 deeds, and as early as 1790, Cadwallader Golden, the trustee, had been 
 paid for all his advances, out of moneys of. the children of David Golden, 
 received from England ; that none of the trust lands were sold to raise 
 this money, or for the repayment of any money raised for this purpose ; 
 that Cadwallader Golden never pretended to have any claims on those 
 lands after this money from England was received and paid. 
 
 The money from England was received in the months of February 
 and June, 1790. In the deed from Cadwallader Golden, the trustee, 
 to Cadwallader D. Golden, there was an exception, as to the Otsego 
 lands, in the covenant, that he had done nothing to encumber or impair 
 the title. This, (as appeared from the deposition,) as the deponent un- 
 derstood, was because some of these lands had been sold by William 
 Cooper, of Cooperstown. 
 
 S. Swartwout, the lessor, was sworn as a witness, and proved the loss 
 of the deed from Cadwallader Golden the trustee, to Catharine Cooper. 
 
 It was admitted that the defendant, in the first cause, was in posses- 
 sion of part of No. 10, and the defendant in the second cause, of part 
 of No. 5, and lease, entry and ouster in both causes were confessed. 
 The plaintiff then rested. 
 
 The defendants then gave in evidence a power of attorney from Cad- 
 
Jackson v. Johnson. 223 
 
 wallader Golden, thQ trustee, to William Cooper, of Cooperstown, dated 
 January 30, 1790, authorizing William Cooper to sell his (Cadwalla- 
 der Colden's) lands and also any lands Cadwallader Colden was intrusted 
 with. 
 
 The defendant in the first cause then read in evidence an article or 
 contract from William Cooper, as attorney for Cadwallader Colden, to 
 one Matthew Rogers, dated 12th May, 1790, by which it was agreed, 
 that if Rogers paid a certain sum of money by the year 1800, with 
 interest annually, he should receive a deed for the whole of No. 10. 
 This article is more particularly recited in the opinion of Suthee- 
 
 LAND, J. 
 
 The defendant in the first cause proved that he, as assignee of the 
 contract to Rogers, went on to No. 10, in 1790 ; that he built a log house 
 that summer, and cleared a part of it ; and had ever since been in pos- 
 session, claiming it as his own. He also gave in evidence, a deed in fee 
 from William Cooper, as attorney for Cadwallader Colden, to him, dated 
 December 13, 1793, for the premises in question, given in pursuance 
 of the article. 
 
 The defendant in the second cause gave in evidence a similar article 
 to one T. Morse, and proved that one Giles, as assignee of Morse, entered 
 in 1790, and cleared a part, and built a log house; that he continued 
 there till 1794, and then sold to the defendant, who had continued in 
 possession ever since, claiming the laud as his own. He also gave in 
 evidence. a deed in fee from William Cooper, as attorney for Cadwalla- 
 der Colden, to himself, for the premises in question, dated January 6, 
 1795, executed pursuant to the article to Morse. 
 
 Verdicts were taken for the plaintiif for a fourth of the premises in 
 question, subject to the opinion of the Court upon the above case. 
 
 J. 0. Morse, for the plaintiff, made the following points : 
 
 1. The plaintiff has shown a perfect title in the lessors. 
 
 2. The defendants' possession did not become adverse, till after the 
 death of Thomas Cooper, who was tenant by the curtesy. 
 
 1. Title is shown in the lessors; for it is proved, ^rsi, that in 1770, 
 D. Colden and C. Colden were seized in fee. Secondly, that in 1775, 
 C. Colden released to D. Colden half the tract of which the premises 
 in question are part. Thirdly, although the lands of David were for- 
 feited by the act of 1779, the act of 1787 vests them in Cadwallader 
 
224 Jackson v. Johnson. 
 
 Golden, in trust for the children of David. Fourthly, in 1792, C. Col- 
 den, the trustee, conveyed to Catharine Cooper, one of the children of 
 David, her share, of which the premises in question are part. Fifthly, 
 Catharine Cooper died in 1797, leaving her husband, Thomas Cooper, 
 survivor, who was tenant by the curtesy. Sixthly, Thomas Cooper died 
 in 1817, and the estate of Mrs. Swartwout then vested, her brother 
 Colden having previously died. 
 
 2. The possession of the defendants, under the contracts to Eogers 
 and Morse, was not adverse. Jackson v. Camp, 1 Cowen's Rep. 605. 
 
 It cannot be said that the deed from C. Colden to Mrs. C. Cooper, 
 in 1792, was void for champerty. The case of Jackson v. Bard, 4 John. 
 230, is decisive on this point. The cases are exactly parallel. In the 
 case of Cooper v. Slower, 9 John. 331, it was decided that a contract to 
 sell and convey, does not even give a license to enter; but it was 
 agreed that till the contract was executed by all the purchasers, and 
 a certain bond given, no timber should be cut : and the Court say, that 
 with this addition, the most that could be implied was a permission to 
 enter and occupy as tenants at will, till the consideration-money was 
 paid. 
 
 The defendants in these causes, then, while occupying under the con- 
 tracts to Morse and Eogers, the consideration-money not having been 
 paid, are to be considered, at most, no better than tenants at will, or 
 quasi tenants at will, to C. Colden, or to his cestui que trust, Mrs. 
 Cooper. 
 
 Their possession, then, did not destroy the operation of the deed to 
 Mrs. Cooper, in 1792 ; and if this was an operative and valid deed, it 
 is not necessary to inquire whether the trust created by the act of 1787 
 was executed by our statute of uses. 
 
 But it may be said, perhaps, that the defendants' possession became 
 adverse when they took their deeds, the first in 1793, and the second 
 in 1795. 
 
 For the sake of the argument, we are willing to admit that their 
 possessions did, in their nature, become adverse ; but it is denied that 
 they began to dperate against Mrs. Cooper. 
 
 We admit that there cannot be a succession of disabilities. We 
 say, in the language of Kent, Chancellor, in Demarest v. Wyncoop, 3 
 John. Ch. E.ep. 136, " If several disabilities exist together at the time 
 the right of action accrues, (or at the time the adverse possession com- 
 
Jackson «. Johnson. 225 
 
 mences), the statute does not begin to run until the party has survived 
 them all." 
 
 In our cases, Mrs. Cooper was, at the date of the defendants' deeds, 
 laboring under two disabilities, infancy and coverture. 
 
 In 1796 she became of age, and her disability as an infant, perhaps, 
 then ceased ; but her disability, as a feme covert, continued as long as 
 she lived. This disability she did not survive. The statute, therefore, 
 did not begin to run against her. 
 
 This is undoubtedly the true doctrine on this subject ; and there is 
 nothing that militates against it, except it be a mere dictum of Chief- 
 Justice Swift, of Connecticut. 2 Conn. Rep. N. S. 33. 
 
 The rule laid down by Chancellor Kent, is supported by Chambre, 
 J., in Cotterell v. Dutton, 4 Taunton 830. 
 
 If, then, the statute did not begin to run against Mrs. Cooper in her 
 lifetime, the intervention of her husband's life estate, as tenant by the 
 curtesy, would further prevent it, so that in fact it never began to run 
 against Mrs. Swartwout, till after the death of her father. 
 
 A contrary rule would be the height of injustice. It would compel 
 the reversioner to bring his suit during the continuance of the particular 
 estate, which is impossible. Jackson v. Sohoonmaker, 4 John. Rep. 402. 
 7 East. 311. 
 
 If the statute does begin to run, the proviso is a nullit}^ " If there 
 be no right to enter during a particular estate, in such a case, the statute 
 never attaches." Ballantine on Lim. 49. 
 
 Possibly, however, it may be contended that Mrs. Cooper was never 
 seized of these lands, in such a manner as to constitute her husband a 
 tenant by the curtesy. 
 
 The rule which now exists on this subject is, that there must be a 
 constructive possession in fact. Jackson v. SeUick, 8 John. Rep. 271. 
 
 In 1792, C. Colden conveyed these lands to Mrs. Cooper. The per- 
 sons then on the lands, as has been shown on the authority of Cooper v. 
 Slower, 9 John. 331, were her tenants at will, or quasi such. She could 
 have maintained trespass against them on the authority of that case. 
 She had, therefore, a constructive seizin in fact. 
 
 In De Grey v. Richardson, 3 Atk. 469, curtesy was allowed in a case 
 precisely like these. In Sterling v. Penninglon, 7 Vin. 1 49, pi. 11 , the wife 
 was denied possession during the coverture, and yet curtesy was allowed. 
 
 Again; it will not be pretended but that from the year 1787, Mrs. 
 
226 Jackson v. Johnson. 
 
 Cooper had a trast estate in these lands. The lands were then wild. 
 An actual entry was not necessary. Jackson y.Sellick, 8 John. Rep. 271. 
 A husband shall be tenant by the curtesy of a trust estate of freehold 
 in the wife. WaMs v. BaU, 1 P. Williams 108. Cruise's Digest, Title 
 XII., Trust, ch. 11, sec. 8, 9. Chaplin v. Chaplin, 3 P. Williams 229. 
 Comyn's Digest, Estate, (D. 1.) 
 
 I. Seelye and B. Campbell, contra. 
 
 1. If the act of 1787 vested in the children of D. Colden, by the 
 statute of uses, an estate in fee, or if it vested by the payment of the 
 money to the trustees in 1790, the statute of limitations began to run 
 against Mrs. Cooper before her marriage. 
 
 Giving the deeds to the defendants, is full evidence that every part 
 of the contracts was performed. Jaelcson v. Camp, 1 Cowen's Rep. 605. 
 
 Where a possession is taken under a contract, and the contract con- 
 summated by a deed, the possession is adverse from the first. The pos- 
 session being adverse in 1790, operated on the rights of Mrs. Cooper, 
 then an infant. 
 
 The proviso in the statute of limitations saved her rights, imtil that 
 disabihty was removed ; but cumulative disabilities are not within the 
 proviso. 18 John. 40. 3 John. Ch. Rep. 129, 138. 4 Taunt. 826. 
 6 East. 80. 4 Day 298. Plowden 353. 4 Mass. Rep. 182. 4 T. R. 
 300. 2 Com. Rep. 27. 
 
 If title first accrue to an infant sixteen years old, he is not within the 
 proviso, nor obliged to bring his action in ten years after he comes of 
 age ; for in all cases a person has twenty years. 
 
 If Mrs. Cooper was seized in 1790, the statute began to run against 
 her. She was of age in 1796. She and her heirs had fifteen years to 
 bring an action. The statute having begun to run, no subsequent disa- 
 bility can stop it. 2 Conn. Rep. 27, 33, per Swift, Ch. J, 
 
 2. But if Mrs. Cooper was not seized till the date of the deed to her 
 from C. Colden, in 1792, this deed gave her no right; for it was void 
 for champerty. At the date of this deed, the defendants had been three 
 years in possession under the contracts. C. Colden could sell nothing 
 but a right of action. • 
 
 If Mrs. Cooper would have been compelled to bring an action to get 
 possession, the deed must be void ; for such an action cannot be sold. 
 It is directly in face of the statute, and void at common law. 1 Rev. 
 
Jackson v. Johnson. 227 
 
 Laws, 172. 3 John. Cas. 101. 2 John. Cas. 41, 58. 5 John. Rep. 
 489. Co. Litt. 214. 11 John. Rep. 91. 9 Id. 55. The lessors, there- 
 fore, showed no right. 
 
 3. The adverse possession certainly began to operate on the execution 
 of tlie deeds to the defendants. Mrs. Cooper was then an infant and 
 covert. She was of age in 1796, and died in 1797. She had twenty 
 years from the date of the defendants' deeds, and her heirs ten years 
 from her death. 
 
 It does not appear from the case, that Mrs. Cooper had a child at the 
 date of Johnson's deed (December, 1793). Of course, Thomas Cooper 
 was not then tenant by the curtesy. 
 
 The case states that Colden Cooper was born in 1793 ; but the time 
 in that year is not stated. The tenancy by the curtesy must have existed 
 when the adverse possession commenced. It cannot arise during the 
 existence of an adverse possession. 
 
 4. When the adverse possession commenced in Johnson's ease, T. 
 Cooper had not acquiredeven an inchoate right by the birth of a child. 
 His life estate did not commence till the death of his wife in 1797, if 
 at all. 1 Binney 10. 
 
 The dictum that the statute does not begin to run in such a case as 
 this, is not correct. It can only be true, that the statute never runs out, 
 and forms a bar during that disability, nor until ten years afterwards. 
 Opinion of Ch. J. Swift, 2 Conn. Rep. 27, 33. 
 
 The statute did, therefore, begin to run, and the life estate of tenancy 
 by the curtesy, not being in existence when the adverse possession com- 
 menced, will not stop the statute. 
 
 This, therefore, distinguishes the case from those of Jaekson v. Schoorir- 
 maJcer, 4 John. 390, and Jackson v. Sdlick, 8 John. 262. 
 
 5. The decisive answer to the plaintiffs claim is, that Thomas Cooper 
 never was tenant by the curtesy. Here was no seizin in deed, and in 
 fact. This is necessary. 1 Inst. 29, a. 1 Cruise 107, s. 10. Perkins 
 464, 470. 
 
 There has been no relaxation of this rule, except where lands are 
 wild, as in Jackson v. Sdliok, 8 Johns. 265. If, however, T. Cooper 
 and wife should be deemed seized in law, that seizin was in trust for the 
 defendants ; and the husband of a female trustee cannot be tenant by 
 the curtesy. 1 Madd. Ch. 268. 1 Cruise's Dig. 471, Title XII., Trust, 
 ch. 1, sec. 30. 
 
228 Jackson v. Johnson. 
 
 Where articles are entered into for the purchase of an estate, a trust 
 immediately results to the purchaser. 3 John. Ch. Rep. 316. 1 Madd. 
 Ch. 389, 390, 391. 
 
 D. Cady, in reply. It cannot be necessary to discuss the questions, 
 whether the act of the 7th of April, 1787, created such a trust in C. 
 Golden, as was executed in the children of D. Golden, by the statute 
 of uses; nor, whether they became seized of the legal estate in 1790, 
 when all the money which their trustee had advanced on account of the 
 trust estate, was repaid. It is enough to show, that it was vested in 
 them by their trustees on the fifth of November, 1792. 
 
 The husband of Mrs. Gooper, the cestui que trust, could not, even by 
 his dissent, make void a deed executed by the trustee in pursuance of 
 the trust. But there is no pretence that he dissented. 
 
 In 1 Inst., sec. 1, 3 a, it is said, " a feme covert is of capacity to pur- 
 chase of others, without the consent of her husband : but the husbajid 
 may disagree thereto and divest the whole estate ; but if he neither agree 
 nor disagree the purchase is good." The law, then, requires that the 
 husband should do an act clearly manifesting his diasent to the purchase. 
 
 What are the facts which are supposed to prove the adverse possession 
 upon which the defendants rely for a defence ? Were it conceded, that 
 on the 13th December, 1793, the possession of the defendants became 
 adverse to all the world, and so continued from that time to the present, 
 it would not furnish them with a shadow of a defence. Unless their 
 possession was commenced in hostility to the title of C. Golden, and 
 continued adverse down to the 5th November, 1792, when he executed 
 a deed to Mrs. Gooper, his cestui que trust, no one of the objections 
 taken by the defendant's counsel, and founded upon adverse possession, 
 can be supported. 
 
 The Gourt say, in the case of Smith v. Burtis, 9 John. 180, "a posses- 
 sion for ever so long a time, stripped of the circumstance that it is 
 accompanied with the claim of the entire title, will not amount to an 
 adverse possession, barring those who have the real and legitimate title. 
 The fact of possession and the quo animo it was commenced or contin- 
 ued, are the only tests ; it must necessarily be exclusive of any other 
 right." In the case of Brandt v. Ogden, 1 John. 158, the Gourt say, 
 " in order to bar the recovery of a plaintiff who has a title by a posses- 
 sion in the defendant, strict proof has always been required, not only 
 
Jackson v. Johnson. 229 
 
 that the first possession was taken under a claim hostile to the real owner ; 
 but that such hostility has continued on the part of the succeeding 
 tenants." 
 
 In these cases, the Court were speaking of such an adverse possession, 
 as would, if continued twenty years, bar the person having title ; but 
 the possession which will make void a deed executed by a person having 
 the title, must be of the same character. Suppose Johnson had remained 
 in possession twenty years, as assignee of the contract to M. Rogers ; 
 would that possession have protected him against an ejectment brougLc 
 by C. Golden ? Could he have alleged that he entered claiming the fee 
 in hostility to the title of C. Colden ? So far from this, C. Golden, on 
 the trial of such ejectment, need not have given any other evidence of 
 his title, than the contract to Rogers, and proof that the defendant 
 entered and claimed as assignee of that contract. Jaohson v. Dobbin, 
 3 John. 223. Jackson v. Reynolds, 3 Gaines 444. 
 
 The counsel for the defendant have introduced what is deemed a new 
 test, in order to determine whether a possession be or be not adverse. 
 They assume that if the defendant had committed such an ouster or 
 disseizin as would compel G. Golden, or fhe children of D. Golden, to 
 bring an action to get possession, then the deed must be void ! Indeed ! 
 is this the rule ? A tenant at will or at sufferance, if he be obstinate, 
 cannot be turned out of possession but by action ; and is it to be taken 
 for granted, that he will be obstinate ; and that his possession renders 
 it unlawful for his landlord to sell the estate ? The law requires strict 
 proof in order to show that a possession is adverse. Without such proof, 
 the possession is always presumed to be in subordiuation to the title, and 
 to be held for the rightful owner. 9 John. 166, 7. 3 John. Cas. 124. 
 
 The case of Jackson v. Bard, 4 John. 231, bears directly upon the 
 point under discussion; and in the case of Jackson v. Camp, 1 Gowen 
 610, the Court say, " that the agreement (to piirchase) had not placed 
 Dyer in a situation to commence holding adversely, until he had per- 
 formed the condition." When Johnson, as the assignee of the agree- 
 ment with Rogers entered, it was altogether uncertain whether he ever 
 would perform the conditions upon which the agreement would take 
 effect, and there is no evidence in the case that he ever did pay a cent 
 before the deed of the 5th November, 1792, to Mrs. Cooper. He did 
 not enter claiming title in himself, but claiming the title to be in C. 
 Colden, from whom he intended to acquire it. 
 20 
 
230 Jackson v. Johnson. 
 
 A deed given in December, 1793, by C. Colden, can furnish no evi- 
 dence that the article of sale was perform^, against his grantee, in a 
 deed given in November, 1792. Besides, the agreement was for the 
 conveyance of 525 acres of land ; and the deed is for but 100 acres. 
 It is idle, therefore, to say that the deed was given in pursuance of the 
 contract, or that it furnishes evidence that the contract was performed. 
 It is rather evidence, that the agreement with Rogers was abandoned, 
 and a new agreement substituted in its stead. It cannot, however, be 
 important whether the defendant did, or did not perform the agi'eement 
 under which he entered. Suppose he had regularly paid the interest 
 up to the time when C. Colden conveyed to Mrs. Cooper, would such 
 payment have rendered his possession adverse, so that C. Colden could 
 not give a valid deed to his cestui que trust ? If C. Colden had been 
 seized of the land in his own right, and covenanted to convey it to the 
 defendant in the year 1800 ; and the defendant had paid the interest to 
 November, 1792, C. Colden might have been considered a trustee for 
 the defendant ; and had C. Colden then given a deed to another, the 
 deed would have passed a valid title at law, but the purchaser might 
 have been charged with the trust, and compelled in a Court of Equity 
 to convey the land to the defendant. But in this case, C. Colden was 
 trustee for the children of D. Colden, before he made any agreement 
 with the defendant's assignor, Rogers. There is good reason for saying, 
 that the defendant purchased with notice of that trust. The papers 
 which the defendant would have to produce, to show his own title, would 
 prove the trust. Hamilton v. Royoe, 2 Sch. and Lef. 315. But whether 
 he is chargeable with notice of the trust or not, Mrs. Cooper had the 
 first equity, and the first title at law. 
 
 But suppose the agreement made by William Cooper with Rogers, was 
 a valid agreement, as against the children of D. Colden ; neither C. Col- 
 den nor his attorney could, after he had conveyed the estate to his cestuis 
 que trust, give a valid deed to Johnson. The defendant should have 
 looked to them for a title. 
 
 The statute against champerty and maintenance has no application to 
 a deed given by a trustee to his cestui que trust in pursuance of the trust. 
 Their titles constitute but one, and it must be immaterial, as to other 
 persons, whether their titles be united in one person or not. There can 
 be no danger, that a cestui que trust will purchase in his own title ai an 
 tmder value, for the purpose of litigation or oppression. The intent of 
 
Jackson v. Johnson. 231 
 
 the statute, was " to restrain all persons froiji transfemng any disputed 
 right to strangers." 3 Bac. Abr. 326, Maintenance. " Whoever has a 
 reversion or remainder vested in him, m&y lawfully take any convey- 
 ance which will strengthen his estate." May not a cestui que trust do 
 the same ? 
 
 Why did the execution of that deed to Mrs. Cooper give the charac- 
 ter of hostility to the defendant's possession ? If the defendant, when 
 that deed was executed, was in possession, admitting the title of C. Col- 
 den, and intending to purchase that title, he did not commence to hold 
 in hostility to it, the moment it; was transferred to Mrs. Cooper. No; 
 he continued to hold under the same title, as her tenant at will. 
 
 To support their branch of the argument upon the statute of limita- 
 tions, the defendant's counsel are driven to the necessity of insisting, 
 that T. Cooper was not tenant by the curtesy. So confident are we, 
 that T. Cooper was tenant by the curtesy, and that, during his life, the 
 descent to the children of Mrs. Cooper was suspended, that I do not 
 deem it necessary to examine whether the construction put upon the 
 statute of limitations by the defendant's counsel, be or be not correct. 
 
 The law is not, that to make the husband tenant by the curtesy, the 
 seizin of the wife must be after the birth of issue. 1 Cruise's Dig. 107, 
 chap. 1, sec. 11. Id. 113, s. 25. The time when the seizin of the wife 
 commences, whether before or after issue had, is immaterial. Thtis, 
 Lord Coke says, 1 Inst. 30, a, " If a man takes a woman seized of lands 
 in fee and is disseized, and then has issue, and the wife dies, he shall 
 enter and hold by the curtesy. So if he has issue before the descent 
 of lands upon his wife." These authorities are enough to show that it 
 is wholly immaterial whether Colden Cooper was born before, or after 
 the deed given to the defendant. Nay ; if he had never been born, it 
 would not have varied the right of the lessors. 
 
 The question is, was Mrs. Cooper, at any time during the coverture, 
 so seized as to entitle her husband to be tenant by the curtesy ? This 
 question must be answered in the affirmative, unless Cadwallader Colden 
 was so disseized, that he could not convey a legal title to his cestui que 
 trust, Mrs. Cooper, on the 6th November, 1792. That he was not so 
 disseized, has, it is believed, been sufficiently shown. 
 
 It requires the same seizin in the wife, to enable her heir to take by 
 descent, as it does to entitle her husband to be tenant by the curtesy. 
 1 Cruise's Dig. 112, ch. 1, s. 24. A seizin in law is said not to be suf- 
 
232 Jackson v. Johnson. 
 
 ficient for either purpose. A seizin in law, as distinguished from a seizin 
 in deed, applies only to cases in which the title of the person claiming 
 is not complete till entry. Thus, a person who claims as heir or devisee, 
 has only a seizin in law, before entry ; and if before entry, a stranger 
 enters, it is an abatement, not a disseizin. 3 Bl. Com. 167. " In de- 
 scents of land, which are cast upon the heir by the act of the law itself, 
 the heir has not plenum dominium, or full and complete ownership, till 
 he has made an actual corporal entry into the lands; and if he die 
 before entry made, his heir shall not be entitled to take possession ; but 
 the heir of the person who was last actually seized." 2 Bl. Com. 312. 
 But when a person claims under a deed or conveyance, to which effect 
 is given by the statute of uses, " he is put at once into corporal posses- 
 sion of the land, without ever having seen it, by a kind of parliament- 
 ary magic." 2 Bl. Com. 338. In this case, Mrs. Cooper did not claim 
 as heir, devisee, or feoffee, and there was no necessity that she should 
 enter in order to enable her heirs to take, or her husband to be tenant 
 by the curtesy. She claimed either under a legislative grant, or under 
 a deed from her trustees, in either of which cases was entry necessary 
 to give plenum dominium. The case put by Lord Coke, 1 Inst. 29, a, 
 to show that the husband shall not be tenant by the curtesy, where the 
 wife has only a seizin in law, is where lands descend to the wife, she 
 has issue, and dies before entry. But the literal construction of this 
 rule has been departed from, both m England and in this country. 
 1 Cruise's Dig. 110, sec. 16. 
 
 In the case of Jackson v. Sellich, 8 John. 262, the Court held that, as 
 to lands, the possession followed the title, and that to entitle the husband 
 to be tenant by the curtesy, it was not necessary that he should enter 
 during the coverture. In the case of Jackson v. Howe, 14 John. 405, 
 406, the Court held that, as to wild lands, the heir need not enter in 
 order t» become the stock from which a descent might be claimed. 
 
 Here the possession of the defendant, was the possession of Cadwal- 
 lader Colden, which was transferred to Mrs. Cooper, and she had a right 
 to consider the defendant as holding for her. At all events, she had a 
 right so to consider him, till he took a deed in 1793. And were it con- 
 ceded that she and her husband were then disseized, and so continued 
 till her death, it would present the very case, in which Lord Coke says, 
 that the husband " shall enter and hold by the curtesy." 
 
Jackson v. Johnson. 233 
 
 Sutherland, J. — The lessors of the plaintiff made out a clear paper 
 title to the premises in question ; and are entitled to recover, unless the 
 deed from Cadwallader Golden to Mrs. Cooper, of the 5th November, 
 1792, was void under the statute of champerty and maintenance, or 
 their rights barred by adverse possession. 
 
 The questions which arose in the suit of the same lessors against 
 Cole,* whether the trust in favor of the heirs of David Colden, created 
 by the act of 1787, was executed by the statute of uses, or if not, whether 
 a conveyance from the trustee to the cestuis que trust was to be presumed, 
 are excluded from this case ; because an actual conveyance from their 
 trustee is proved ; and the first question which arises is, whether that 
 conveyance was valid. It bears date on the 5th November, 1792 ; and 
 it is contended by the defendant that it was void ; because, at the. time 
 of its execution, the premises in question, which, among others, it pur- 
 ported to convey, were in the actual possession of the defendant, under 
 a contract of sale made between Cadwallader Colden, by his attorney 
 William Cooper, and one Matthew Rogers, on the 12th day of May, 
 1790. It appears that the defendant, as the assignee of that contract, 
 entered upon a part of the premises which it contains in the summer 
 of 1790, made a small clearing, and erected a log house; that on the 
 13th day of December, 1793, he took a deed from William Cooper, as 
 the attorney of Colden, and has remained in the possession down to the 
 time of the trial. 
 
 This, it is said, was an adverse possession from the time of the de- 
 fendant's entry in 1790; but if not so, then, that it became adverse 
 upon the receiving of his deed in 1793. 
 
 So far as the question of maintenance is concerned, it is not material 
 whether the defendant's possession became adverse or not, upon receiv- 
 ing his deed in 1793. If the lands conveyed to Mrs. Cooper by the 
 deed of November 5th, 1792, were not then held adversely to the 
 grantor, the deed was not void on the ground of champerty and main- 
 tenance. The adverse possession must exist at the time of the convey- 
 ance, in order to avoid it. If the defendant's possession was not then 
 adverse to Cadwallader Colden, under whom he entered, it was in judg- 
 ment of law the possession of Colden ; and his conveyance would not 
 be affected, either by the terms or the principles of the act against cham- 
 
 *4Cowen'sEei). 587. 
 20* 
 
234 Jackson v. Johnson. 
 
 perty and maintenance. In the view of that act, it would be valid, 
 whatever might be its legal eifect and operation. 
 
 Was the defendant, then, on the 5th of November, 17*2, in posses- 
 sion of the premises in question, holding them adversely to Cadwallader 
 Golden? By the contract with E-ogers, he was to have a deed for his 
 land from Golden, upon his paying him £262,10, with interest, annu- 
 ally, on or before the 12th day of May, 1800. The contract does not, 
 in terms, authorize Rogers to enter upon the land. It contains no words 
 of present demise. It recites that Rogers, by his obligation, bearing 
 even date with the agreement, was indebted to Golden in the sum of 
 £262,10, and covenants that in consideration thereof, the said Golden 
 will convey to the said Rogers, the premises mentioned therein, if the 
 said Rogers shall pay the said sum of £262,10, with interest, annually, 
 on or before the 12th day of May, 1800. Rogers, therefore, or his 
 assignee, was not entitled to a deed until the land was paid for. He 
 did not enter, claiming the whole title. The contract itself admits the 
 title to reside in Golden, and that it was to remain in him until Rogers' 
 part of the agreement was performed. Now, admitting the deed to the 
 defendant, given in 1793, to be evidence of performance on his part, it 
 is evidence of performance only at the time it was given, and not at 
 any antecedent period. In 1792, therefore, when the deed to Mrs. 
 Gooper was given, the defendant had not performed, and was not enti- 
 tled to a conveyance. Such a possession has never' been considered 
 adverse. In Jackson v. Bard, 4 John. 230, one Barton, in May, 1798, 
 entered into articles of agreement with Dickenson and Harris, for the 
 sale of certain premises. Soon after, one Smith purchased a portioij of 
 the premises from Dickenson by contract, and paid him $25, and entered 
 into possession. On the 8th March, 1799, Barton gave a deed to Dick- 
 enson, and took back a mortgage. Barton foreclosed the mortgage, and 
 the lessor of the plaintiff became the purchaser, and took a deed from 
 Barton on the mortgage sale. The tenant in possession under Smith 
 forbid the sale, and it was contended that the possession of Smith was 
 adverse at the time of the giving of the mortgage, so as to render it 
 void and prevent its operation. But the Court held it not to be adverse 
 to Barton's title. They say Dickenson could not have set up against 
 Barton an adverse holding ; and Smith, who claimed under him, must 
 be considered as standing in the same situation. 
 
 In Jackson v. Camp, 1 Gowen 605, the same principle is distinctly 
 
Jackson v. Johnson, 235 
 
 recognized. One Dyer made a contract for land with the agent of the 
 proprietors in 1792, and entered under it. In 1794 he received his 
 deed. In 1796 he sold a part of it to the defendant. It appeared that 
 he took possession under his contract, of land which the deed did not 
 cover, and the defendant sought to retain it, on the ground of adverse 
 possession. The possession taken under Dyer's contract, was held not 
 to be adverse on several grounds. But, among others, the Court say, 
 the agreement (made by Dyer with the agent) " did not put him in a 
 situation to commence holding adversely, until he performed the con- 
 dition. The land still belonged to the proprietor of the township. 
 Whether he ever would perform, was contingent. He entered on the 
 lot, it is true, but it was necessai-ily subject to the right of turning him 
 off, if he neglected to make full payment. The possession, therefore, 
 when taken, had not the characteristics to constitute it adverse. It was 
 not hostile in its inception. On the non-performance. Dyer would be- 
 come liable to be turned out as a trespasser, and responsible in that 
 character for the mesne profits." These obsei-vations are entirely appli- 
 cable to this case, and are decisive of the question of adverse possession, 
 at the time of the giving of the deed from Cadwallader Golden to Mrs. 
 Cooper in 1792. That deed, therefore, was not void on the ground of 
 champerty or maintenance. 
 
 A possession, in order to be adverse, must be accompanied with a 
 claim of the entire title. If it appear that the title claimed is subservi- 
 ent to, and admits the existence of a higher title, the possession is not 
 adverse to that title. Smith v. Burtis, 9 John. 180. Now, in this case, 
 the agreement between Colden and Rogers, is an admission on the part 
 of Rogers, that the legal title remained in Colden ; for it provided for 
 the conveyance of that title to Rogers at a future period, upon certain 
 contingencies. If Rogers had not performed the agreement, it would 
 have afforded all the evidence of title, which would have been necessary 
 to enable Colden to recover the possession from him, in an action of 
 ejectment. Colden might perhaps be considered as the trustee of Rogers, 
 holding the legal estate in trust for him, upon performance on his part ; 
 and if Colden's estate in the land had been absolute and in his own 
 right, and not in trust for the heirs of David Colden, his grantee would 
 probably have taken it subject to the trust for Rogers, and might per- 
 haps have been compelled in equity to convey. It may well be doubted 
 whether, in a case like this, where the legal estate has been united to 
 
236 Jackson v. Johnson. 
 
 the older equitable interest, chanceiy would interfere in favor of a 
 younger equity. But tibat inquiry is irrelevant here ; for in this action 
 the legal title must prevail. 
 
 But if the defendant had not such an adverse possession on the 1st 
 of November, 1792, as to render the conveyance to Mrs. Cooper, of that 
 date, void, it is contended that his possession, at all events, became ad- 
 verse to the lessors of the plaintiff on the 13th of December, 1793, when 
 he received his deed from Cadwallader Golden ; and that the claim of 
 the lessors of the plaintiff is barred by the statute of limitations. It is 
 answered that Mrs. Cooper was, at that time, both an infant and feme 
 covert; that her coverture continued until her death in 1797 ; that the 
 descent to her children was suspended during the life of Thomas Cooper, 
 her husband, who was tenant by the curtesy, and who survived until 
 1817. In reply, it is denied that Mrs. Cooper ever was so seized as to 
 constitute her husband tenant by the curtesy. In order to create such 
 a tenancy, it is said that there must be a seizin in fact, either in the 
 wife or the husband in her right. But admitting there was a sufficient 
 seizin, then it is contended that in December, 1793, when the defend- 
 ant's adverse possession commenced. Cooper was not tenant by the cur- 
 tesy, as it is not shown that Colden Cooper, his son, was then bom ; 
 that his life estate did not commence until the death of his wife, in 1797 ; 
 and tJiat the statute having commenced running in 1793, could not be 
 impeded by any subsequent disability. 
 
 It is well settled that cumulative disabilities are not allowed or pror 
 tected by the statute ; that a party can only avail himself of the disa- 
 bilities existing when the right of action first accrued. Demarest v. 
 Wyncoop, 3 John. Ch. Rep. 138, and the cases there cited and examined 
 by Chancellor Kent, and Jackson v. Wheat, 18 John. 45, where the 
 doctrine is fully recognized. 
 
 It is also clear, both from the words and policy of the statute, and the 
 repeated expositions which have been given to it, that if twenty years 
 have elapsed since the right of action accrued, and ten of those years 
 have been free from disability, the right of entry is barred ; that is, the 
 party is not entitled to twenty years after the disability ceases, to bring 
 his action, but to ten years only, provided, at the expiration of those 
 ten years, twenty years have elapsed since the right of entry or action 
 accrued. 
 
 Thus, in this case Mrs. Cooper, in 1793, when the defendant's adverse 
 
Jackson v. Johnson. 237 
 
 possession commenced, was an infant and feme covert. Slie was, at all 
 events, entitled to twenty yeai-s to bring her action ; and if her coverture 
 continued also for twenty years, she was entitled to ten years after it 
 ceased. The statute would have protected her for thirty years. But 
 if her infancy and coverture had ceased at any time within ten years 
 after the defendant's entry, tlien she was barred at the expiration of 
 twenty years ; because she had more tlian ten years free from disability. 
 Her infancy, in fact, terminated in 1796, and her coverture in 1797, 
 when she died. If her husband had not a life estate as tenant by the 
 curtesy, so that her lands then descended to her heii-s, their right of 
 entry terminated in 1813, being twenty years from the commencement 
 of the defendant's adverse possession, and more than ten years after the 
 termination of the disabilities, and death of their ancestor. Kent, Ch. 
 J., in Smith v. Burtis, 9 John. 181, considers this the time exposition of 
 the statute ; and although he says that the question did not necessarily 
 arise in that case, and therefore he did not wish the opinion on that 
 point then expressed by him, to be considered definitive, subsequent 
 reflection and examination confirmed him in that opinion ; for he reit- 
 erates it in the case of Demurest v. Wyncoop, already referred to. Vid. 
 also 4 Taunt. 826. 6 East. 50. 4 Day 298. 2 Conn. Rep. 27. 4 Mass. 
 Rep. 182. 4 T. R. 300. Plowd. 353. 
 
 Unless, therefore, Thomas Cooper was tenant by the cm-tesy of his 
 wife's lands, so as to suspend their descent to her heirs, the claim of the 
 lessors of the plaintiff is barred by the statute of limitations. 
 
 It seems to be supposed by the counsel for the defendant, that unless 
 the life estate of Cooper had vested, by the bii'tli of a child, previcms to 
 the commencement of the adverse possession in 1793, although he might 
 subsequently have become tenant by the curtesy, the heirs of Mrs. 
 Cooper could not avail themselves of this new disability, to avoid the bar 
 of the statute of limitations ; that it would fall within the principle of 
 cumulative or successive disabilities, which are not allowed by the policy 
 of the act. 
 
 It is clear, that the birth of a child at any time during coverture, 
 whether before or after the commencement of the defendant's possession, 
 would constitute Cooper tenant by the curtesy of all the lands of his 
 wife, of which, during coverture, she was so seized as to support such 
 an estate. Lord Coke, 1 Inst. 30, a, says, " four things belong to an 
 estate of tenancy by the curtesy, viz. raamage, seizin of the wife, issue. 
 
238 Jackson v. Johnson. 
 
 and death of the wife. But it is not necessary tliat these should concur 
 together all at one time ; and therefore if a man taketh a woman, seized 
 of lands in fee, and is disseized, and then have issue, and the wife die, 
 he shall enter and hold by the curtesy. So if he hath issue which dieth 
 before tfie descent." Vid. also, 8 Kep. 36, Paine's case.* 13 Rep. 23, 
 Menvil's case. 1 Cruise's Dig. Tit. 5, Curtesy, ch. 1, s. 11, 25, pp. 107, 
 112, 113. 
 
 Cooper then had a life estate in the premises in question, which was 
 initiate, as it is expressed, Coke Litt. 30, a, upon the birth of a child in 
 1793 ; and became consummate upon the death of his wife in 1797, ajid 
 continued until his death in 1817. 
 
 During the existence of this particular estate, the lands of Mrs. 
 Cooper did not descend to her heirs, so as to give them a right of entiy. 
 The question then recurs, whether this pai-ticular estate, which arose, or 
 was created subsequent to the commencement of the adverse possession 
 in 1 793, was a cumulative disability, of which the lessors of the plain- 
 tiff cannot avail themselves under the statute, by way of excuse for not 
 having brought their action within thirteen years after the death of their 
 ancestor ; the period within which they must have brought it, if tliis 
 estate by the curtesy had not existed. 
 
 The statute declares that no person shall make any entry into lands, 
 but within twenty years next after his right or title descended or accrued ; 
 provided, that if any person entitled to make such entry, be, at the time 
 such right or title first descended or accrued, within the age of twenty- 
 one years, feme covert, etc., such person and his heirs shall or may after 
 the said twenty years be expired, make such entry, as he or they might 
 have done before the expiration of the said twenty years, so as such 
 person, within ten years after such disability removed, or the heir or 
 heirs of su6h person, within ten, years after his death, make such entry. 
 Now, it is most obvious, that the heirs here contemplated, are such heirs 
 as have a right of entry. The object of the statute was to punish par- 
 ties guilty of laches in the assertion of their right, by a forfeiture of 
 them. The proviso was intended to save those who, in judgment of law, 
 had a reasonable excuse for their delay ; and give to them and their 
 heirs ten yeai"s after the disability should be removed, to bring such 
 action, or make such entry as they might have brought, or made within 
 
 * Cited sometimes, 8 Rep. 35, b, and of some editions, p. 67. 
 
Jackson v. Johnson. 239 
 
 die twenty years. But the parties in reversion in this case could not 
 have made entry or brought any action to recover the possession during 
 the twenty years. The statute would work great injustice, if it were 
 held to affect the rights of reversioners or remainder-men during the 
 continuance of tlie particular estate. Such was the view of the statute 
 taken by this court, in Jackson v. Sohoonmahe)', 4 John. 390, and Jack- 
 son V. Sellick, 8 John. 262. In the first case, it is said, that neither a 
 descent cast, nor the statute of limitations, will affect a right, if a par- 
 ticular estate existed at the time of the disseizii^ or when the adverse 
 possession began ; because a right of entry in the remainder-man cannot 
 exist during the existence of the particular estate. And the laches of 
 a tenant for life will not affect the party entitled. The reason given 
 shows that the circumstance, that the particular estate existed at the 
 time of the disseizin, or when the adverse possession began, can vary 
 the case. It applies with equal force to a case where it accrued subse- 
 quently. 
 
 In Jackson v. Sellick, the adverse possession commenced in 1772, 
 when Vincent Matthews was tenant by the curtesy ; the estate in rever- 
 sion being in his daughter, then an infant. She man-ied Beekman in 
 1783 ; and Matthews, the tenant by the curtsey, died in 1784. Beek- 
 man, the husband, died in 1 807 ; and his widow, the daughter of Mat^ 
 thews, was the lessor of the plaintiff. When the adverse possession 
 commenced, the only disability that existed, independent of the estate 
 by the curtesy, was the infancy of the lessor. Her coverture did not 
 commence until 1783; the particular estate having terminated in 1784. 
 It was contended that the lessor being then of full age, and having a 
 right of entry, waB bound to exert it ; and that she could not avail her- 
 self of her coverture ; and it was urged that her coverture was a second 
 or cumulative disability, which was never allowed. But the Court held, 
 that during the particular estate, no right of entry had descended to the 
 lessor ; that the statute, therefore, did not begin to run until the death 
 of the tenant by the curtesy ; that coverture was the first disability ; 
 and they reiterate the language used by them in Jackson v. Schoonmor- 
 ker, that the statute of limitations does not affect the right of a remain- 
 der-man during the continuance of the particular estate. If the right 
 of remainder-men or reversioners are not affected by the statute, then, 
 during the life of the tenant by the curtesy, it could not have run 
 against the lessors ; for they had no right of entry until his death. If 
 
240 Jackson v. Johnson. 
 
 Mrs. Cooper, then was so seized as to constitute her husband tenant by 
 ■the curtesy, the right of the lessors is not barred by the statute of lim- 
 itations, and they are entitled to recover. 
 
 It is said to be indispensable, that there should be an actual seizin of 
 the land, either by the wife or by the husband in her right, in order to 
 constitute him a tenant by the curtesy that a seizin in law is not suffi- 
 cient to support such an estate it must be in fact and in deed. 
 
 This is undoubtedly the general language of the English authorities. 
 Coke's Litt. 29, a. ^ruise. Dig. 108, Tit. 5, ch. 1, s. 10. But this 
 rule, in its literal strictness, has not been adhered to, either in England 
 or in this country. 
 
 In De Gi-ay v. Richardson, 3 Atk. 469, Lord Hardwicke ruled, that 
 the husband was entitled to hold as tenant by the curtesy, an estate tail 
 descended to his wife from her brother, which was leased for years; 
 and on which leases there were large arrearages but no rent paid during 
 the life of the wife. So that the possession of a lessee for yeai's, is so 
 far the possession of the person entitled to the inheritance, even before 
 the receipt of rent as to entitle the husband to curtesy. And several 
 other cases in which the relaxation of the rule is exemplified, are col- 
 lected in 1 Cruise's Dig. 110, 11, 12. 
 
 In this Court, Jackson v. Sellick, 8 John. 270, it was held not to apply 
 to wild and uncultivated lands ; that in relation to them, actual occupa- 
 tion was not necessary to sustain an estate by the cui-tesy ; that the pos- 
 session follows the title so as to enable the owner to maintain trespass, 
 and, with equal reason, to sustain an estate by the curtesy. 
 
 But it is suggested by the counsel for the plaintiff, and I think with 
 great force, that the rule requiring an actual seizin, applies only to cases 
 in which the title of the person claiming is not complete till entry. 
 Thus, a person claiming by descent or devise, has only a seizin in law 
 before entry ; and if he die before entry, the inheritance will go, not to 
 his heir, but the heir of the person last actually seized. Upon such a 
 seizin of the wife, there could be no estate by the curtesy. Her issue 
 would not be capable of inheriting from her ; and the rule seems to be, 
 that, to enable the husband to be tenant by the curtesy, the wife must 
 have such seizin, as will enable her issue to inherit from her. 1 Cruise's 
 Dig. 112, s. 24. 
 
 Now, in all the cases in which an actual seizin of the wife has been 
 held necessary, it will be found that she claimed either as heir or devisee 
 
Jackson v. Johnson. 241 
 
 and not by virtue of a deed or conveyance to which eifect is given by 
 the statute of uses. ' 
 
 Where the statute executes the estate, as is said by Blackstone, 2 Com. 
 238, the party iutended to be benefited, is put at once into corporal pos- 
 session of the land without ever having seen it, by a kind of parKa- 
 nientary magic. Here the wife did not claim as heir or devisee, but 
 under a deed from Cadwallader Golden ; and I apprehend, with the 
 counsel for the plaintiff, that no actual entry was necessary in order to 
 enable her heirs to take, or her husband to be tenant by the curtesy. 
 
 I am accordingly of opinion that the plaintiff is entitled to recover 
 in both causes. 
 
 Savage, Ch. J. — I propose to consider the rights of the parties, at 
 the several different stages of their title. 
 
 In 1787, the title to the premises in question, and other lands, is 
 admitted to have been vested in the people of this State. The act of 
 that year, was a conditional grant of these lands to C. Golden in trust 
 for the heirs of D. Golden. The title, however, did not vest until the 
 conditions were performed, which was in February, 1790. G. Golden 
 was authorized to sell the lands to reimburse advances which it was 
 contemplated he would make, and in fact did make. He took the legal 
 estate, and the heirs, only an equitable one. In May, 1790, he con- 
 tracted to sell the premises in question to Rogers. This contract he had 
 a right to make, and was in fact the only person, who could convey the 
 title. The defendant, Johnson, went into possession as assignee under 
 the contract, and acquired an equitable iaterest ia the land ; but his 
 possession was surely not adverse to the true title. He was considered 
 in law, a tenant at will to the owner of the estate, G. Golden. 
 
 Such was the relation of the parties, till the 5th of November, 1792, 
 when C. Golden, who had, in 1790, been reimbursed his advances, put 
 an end to his trust, by conveying the legal estate to the children of D. 
 Golden. Between the trustee and cestuis que trust, there was no dif- 
 ficulty. Their title was the same. Before the conveyance of 1792, 
 they severally held different component parts, (if I may so express it,) 
 of the same title. The legal estate was in G. Golden, while the equita- 
 ble estate rested in the heirs of D. Golden. His (G. G.'s) acts were 
 valid, and binding upon those heirs ; and when he conveyed to them 
 the legal estate, they took it, subject to such equitable interests as the 
 21 Q 
 
242 Jackson v. Johnsox. 
 
 defendant and others had acquired in the lands, by virtue of the acts 
 of the trustee. So far from an adverse possession, which would inval- 
 idate the conveyances from C. Golden to the heirs, there existed a ten- 
 ancy. 4 John. 230. That relation was transferred from the trustee to 
 the heirs. They might have enforced the performance of the contract, 
 and were bound on their part to give the title on the terms and condi- 
 tions contained in it. 
 
 While such were the relations between these parties, the defendant, 
 Johnson, on the 13th December, 1793, received a deed from Cooper as 
 attorney for C. Golden. At this time G. Golden had no interest in the 
 lands ; and as the defendants are presumed to have been conusant of 
 the conveyance in 1792, receiving this deed was an act of disloyalty to 
 the true landlords ; and may, therefore, be considered with propriety, 
 the commencement of a holding adverse to the title of the lessors. 
 
 It is contended that the execution of the deed is evidence of the per- 
 formance of the contract by the defendant ; and so it would be undoubt- 
 edly, if it had been given by the owner of the title in pursuance of the 
 contract. But under the circumstances of this case, the deed of C. Col- 
 den can have no more legal operation upon the title of the defendant, 
 than if it had been executed by John Stiles. It evinces, however, an 
 intention to hold under a title hostile to that of the lessors, and is there- 
 fore adverse. That a possession taken at first under the true title, may 
 subsequently become adverse, seems to be conceded by several decisions 
 of this Court. 1 Cowen 610. 18 John. 488. And this, I apprehend, 
 is an exception to the rule as we find it laid down in Brandt v. Ogden, 
 1 John. 156, that the possession must be adverse in its inception. After 
 the 13th of December, 1793, the defendant claimed the entire title, 
 exclusive of any right in another, and this claim was in hostility to the 
 title of the lessors. Whether Mrs. Cooper had a right of action against 
 the defendant on the execution of the deed to her, in 1792, would de- 
 pend on the payment of the interest by the defendant. Supposing that 
 to have been done, which we are warranted in assuming, as the case is 
 silent on the point, it follows that Mrs. Cooper had no right of action 
 against the defendant, until December 13, 1793, when he disclaimed 
 her title by taking a deed from another, and as respects the rights of 
 the parties, a stranger. 
 
 I assume, then, what to me seems undeniable^ that on the 13th of 
 December, 1793, the defendant's possession became adverse, and that 
 
Jackson v. Johnson. 243 
 
 the statute of limitations would then have commenced running, but for 
 the disabilities of Mrs. Cooper. At this time, she was an infant and a 
 feme covert ; arid it is perfectly well settled, that if several disabilities 
 exist, when the right of action accrues, the statute does not begin to 
 run, till the party has survived them all. 3 John. Ch. Eep. 138. 
 1 Plowd. 375. It is equally well settled, that cumulative disabilities 
 cannot be allowed. Two disabilities were existing when the right of 
 action accrued ; infancy and coverture ; and the proviso in the statute 
 gives ten years in which an action may be brought, after such disabili- 
 ties removed. The last of these disabilities was removed by the death 
 of Mrs. Cooper, in July, 1797. Her infancy had ceased in Novem- 
 ber, 1796. 
 
 According to the construction given to the statute, 3 John. Ch. Rep. 
 137, the party has, in every event, twenty years to make his entry ; and 
 if under disabihty when the right accrues, he has ten years, and no 
 more, after the disability ceases. If twenty years were not to be allowed, 
 and the heirs of Mrs. Cooper were confined to ten years after the death 
 of their mother, their right would have been barred in 1813, though 
 the twenty years would not expire till 1817. But as the statute did 
 not intend to place those persons named in the proviso in a worse con- 
 dition than those who were under no disability whatever, it is a reason- 
 able construction of the statute, that twenty years shall be allowed them 
 at all events. It may happen that this proviso will give to some thirty 
 years, while others, under similar disabilities, may have but the twenty 
 years. Such would be the situation of the lessors of the plaintiif, were 
 there no intervening life estate, to suspend further the operation of the 
 statute. 
 
 It becomes important, then, to inquire whether Thomas Cooper was 
 tenant by the curtesy ; and if so, what effect the existence of his life 
 estate has upon the rights of the parties. 
 
 To constitute this estate, four things are necessary : marriage, seizin, 
 issue bom aKve, and the death of the wife. The marriage in this case 
 took place on the 7th of April, 1792. According to the view which I 
 have taken, the wife became seized of the legal estate, on the 5th of 
 November, 1792. She had one child in 1793, and another in 1795; 
 and died in 1797, when the husband's estate became perfect. 
 
 It is objected, however, that the wife could not have that seizin in 
 fact which is necessaiy to make the husband tenant by the curtesy. It 
 
244 Jackson v. Johnson. 
 
 has been settled by this Court in the case of Jackson v. SeHEck, 8 John. 
 269, that a wife who had the legal title to wild and uncultivated lands, 
 had such a seizin as was sufficient to constitute her huiiband tenant by 
 the curtesy. Here, however, there was an actual entry by the tenant 
 of the wife ; for it has also been adjudged by this Court, that a pur- 
 chaser by contract holds as tenant at will. It is immaterial at what 
 period, during coverture, the wife become seized ; whether before issue 
 or after. Nor is it material, whether the issue be living at the time of 
 the seizin. So, if the wife be seized, and disseized before issue, yet if 
 she have issue after the disseizin, the husband shall hold as tenant by 
 the curtesy. Co. Litt. 29, 30. The husband's title does not become 
 perfect till the death of the wife, though, for some purposes, it is sup- 
 posed to commence at the birth of a child. He is- then called tenant 
 by the curtesy initiate; but not consummate, till the death of the 
 wife. 
 
 Assuming, then, that there was such seizin in Mrs. Cooper as entitled 
 her husband to hold as tenant by the curtesy, it becomes necessary to 
 inquire, whether the existence of that estate prevents the operation of 
 the statute of limitations. In Jackson v. 8choonmaker, 4 John. 402, it 
 was decided that " neither a descent cast, nor the statute of limitations 
 will affect a right, if a particular estate existed, at the time of the dis- 
 seizin, or when the adverse possession began ; because a right of entry 
 in the remainder-man cannot exist during the existence of the particu- 
 lar estate ; and the laches of a tenant for life will not affect the party 
 entitled. An entry, to. avoid the statute, must be an entry for the pur- 
 pose of taking possession ; and such an entry cannot be made during 
 the existence of the Kfe estate." In that case, the disseizin happened 
 after the tenancy by the curtesy was consumma,te ; and hence, possibly, 
 the peculiar phraseology of the Court, when they say, " if a particular 
 estate existed at the time of the disseizin, or when the adverse possession 
 began." I apprehend the doctrine is equally true, that the right of a 
 reversioner or remainder-man is not affected by the statute, if the par- 
 ticular estate existed when the right accrued. And the same reason 
 may be given for the one as the other ; because the right of entry never 
 existed in him, in reversion or remainder, during the continuance of the 
 particular estate. When did the statute become operative ? Not till 
 the death of Mrs. Cooper, as that event terminated the coverture. But 
 the same event which subjected her heirs to the operation of the statute, 
 
Jackson v. Johnson. 245 
 
 consummated the particular estate which precluded them from any right 
 of entry ; et impotentia excusat legem. 
 
 Before the statute can, by any reasonable construction, be made to 
 operate, there must be some laches on the part of those asserting a right 
 of entry ; and the policy of the statute gives to every claimant at least 
 ten years, within which laches shall not be imputed. 
 
 At what period of time, I would ask, was it in the power of the heirs 
 of Mrs. Cooper to have asserted their rights, before 1817, when Thomas 
 Cooper died ? Their infancy, I admit, is no excuse for them, as suc- 
 cessive disabilities are not allowed. The statute was not operative till 
 the death of Mrs. Cooper. It is true, indeed, that more than twenty 
 years have elapsed since the adverse possession commenced ; and more 
 than ten years since the last disability was removed, which existed when 
 the disseizin took place; but I would ask, when were the claimants 
 guilty of laches ? They were not bound to make an entry, or claim, 
 till the death of Mrs. Cooper. And from that period, till the death of 
 the tenant for life, the law would not permit them to enter. Shall 
 laches, then, be imputed to them ? Certainly not. Whether Colden 
 Cooper was born before or after the disseizin, seems to me not to change 
 the rights of the parties. The lessors of the plaintiff have brought 
 their action within ten years after the operation of the statute upon their 
 claim; and are not barred by it. Having, in my opinion, shown a right 
 to one-fourth of the premises, they are entitled to judgment for so much. 
 
 WooDWOETH, J. {Dissenting in the first cause.) — I am of opinion 
 that a legal title, to one undivided fourth part of the premises in ques- 
 tion, was conveyed to Catharine Cooper, by the deed from Cadwallader 
 Colden, of the 5th November, 1792. At this time, the possession held 
 under a contract to sell, given by William Cooper, as attorney for Cad- 
 wallader Colden, was not adverse ; because the purchase rested in con- 
 tract, and the conditions were not yet performed. An adverse possession 
 cannot commence under a contract to purchase, as has been frequently 
 decided upon reasons fully assigned. The adverse possession of John- 
 son commenced December 13, 1793, when Cooper conveyed to him. 
 At that time Catharine Cooper was an infant and feme covert. She 
 died in July, 1797, leaving a son born in 1793, since dead without 
 issue ; and Alice, one of the lessors of the plaintiff born September 
 
 30, 1795. 
 21* 
 
246 Jackson v. Johnson. 
 
 The question is, whether the plaintiff is bound by the statute of lim- 
 itations. It is contended that Mrs. Swartwout had but ten years from 
 the death of her mother to bring a suit; because Thomas Cooper was 
 never tenant by the curtesy ; and consequently there was no suspension 
 of the statute. The argument is founded on this, that it does not,appear 
 that Golden Cooper was born before the deed executed to the defend- 
 ants ; and if he was not, it is contended that there was not such a seizin 
 in the wife as would make the husband tenant by the curtesy ; or, in 
 other words, that it must be an actual seizin after the birth of issue ; 
 and that a previous seizin during the coverture and before issue, is in- 
 sufficient. The law on this subject is otherwise. According to Lord 
 Coke if a man takes a woman seized of lands, and is disseized, and then 
 has issufe, and the wife dies, he shall enter and hold by the curtesy. 
 1 Cruise's Dig. 107, oh. 1, s. 11. Id. 112, s. 25. So that whether the 
 birth of Golden Cooper was before the deed of 1793, or not, is imma- 
 terial as to the question whether Thomas Cooper was not tenant by ithe 
 curtesy, at some period during the coverture. Mrs. Cooper did not take 
 as heir or devisee, in which cases it might be necessary for her to make 
 an actual entry, in order to enable her heir to take by descent, or her 
 husband to be tenant by the curtesy. The title was not cast on her by 
 act of law ; but she took under a deed to which effect is given by the 
 statute of uses by which she was put in corporal possession, there being 
 no adverse holding at the time. 2 Bl. Com. 312, 338. 1 Inst. 29. 
 
 But admitting this proposition to be correct, the material point is this: 
 when did the right of entry first accrue ; and what were the existing 
 disabilities at that time ? The answer is, the adverse possession com- 
 menced December 13, 1793. The only disabiUties then existing were 
 infancy and coverture. No tenancy by the curtesy existed at that period ; 
 for it is not shown that Colden Cooper was then born. The birth of a 
 child is necessary to constitute this estate. The husband at that moment 
 had no estate that could be continued beyond the coverture ; for, on the 
 death of his wife without issue, the estate would have immediately de- 
 scended to her heirs. Whether he would ever have a greater right was 
 altogether contingent and uncertain. He had not even an inchoate 
 right as tenant by the curtesy ; consequently, the proviso in the statute 
 applied to coverture and infancy only ; and gave ten years after those 
 disabilities were removed. But the party has in any event twenty yeai-s 
 to make his entry; and as Mrs. Cooper died in 1797, four years after 
 
"Wells and "Wells v. Thompson. 247 
 
 her disseizin, the effect of the proviso would be to give her heirs sixteen 
 years after her death. The sixteen years ended in 1813. The law is 
 well settled, that the right of entry is not barred until all the disabili- 
 ties, existing when the right of action accrued, are removed ; that there 
 cannot be cumulative disabilities ; for when the statute first begins to 
 run, all subsequent disabilities are disregarded. It is then evident that 
 although Thomas Cooper afterwards became a tenant by the curtesy, it 
 does not interpose any additional barrier to prevent the operation of the 
 statute. The following authorities establish the doctrine laid down : 
 3 John. Ch. Eep. 129. 18 John. Eep. 44. 8 Id. 262. 2 Conn. Eep. 
 27. 6 East. 80. 4 Mass. Eep. 182. Plowd. 353. As the deed to the 
 defendant, Johnson, bears date December 13, 1793, and by the testi- 
 mony of Cadwallader D. Golden, it appears that Colden Cooper was 
 born in 1793, it is highly probable that his birth was previous to the 
 disseizin. Had this been shown, then Thomas Cooper would have had 
 a contingent estate as tenant by the curtesy; and in the event of his 
 surviving his wife it would have become absolute. But on the facts 
 before us I am of opinion that the defendant, Johnson, is entitled to 
 judgment. 
 
 Judgment for the plaintiff in both causes. 
 
 WELLS AND "WELLS v. THOMPSON. 
 
 Supreme Court of Alabama, January Term, 1848. 
 
 [Reported in 13 Alabama 793.] 
 
 The failure of an Indian reservee, or his or her heirs, under the provisions 
 of the treaty of the 24th March, 1832, with the Creek tribe of Indians, 
 to take possession of the land allotted to them, or in any manner to sig- 
 nify a desire to remain in this State, after the five years expired, deter- 
 mined the estate to which they would otherwise have been entitled, and 
 the land revested in the United States, without an entry, or other act 
 on the part of its agents. 
 
 A marriage between a white man and a woman, who is of mixed white 
 and Indian blood, if made between parties able and willing to contract, 
 and consummated, is valid under the law of this State. Quere— When 
 a marriage is duly solemnized in this State, does not the strength and 
 perpetuity of the marriage tie depend upon the marriage doniicil, and 
 not upon any subsequent residence of the parties in a heathen country ? 
 
248 Wells and Wells v. Thompson, 
 
 3. A marriage solemnized in this State, is not dissolved by an abandonment 
 
 of one of the parties, unless sanctioned by a divorce in due form. 
 
 4. The husband is a tenant by the curtesy, of waste and uncultivated lands, 
 
 not held adversely by another, of vrhich the wife had only the legal sei- 
 zin, if the other incidents necessary to create the tenancy by curtesy 
 exist. 
 
 5 The adultery of the husband is not a forfeiture of the tenancy. 
 
 6. Though the husband may forfeit his estate, as tenant by the curtesy, by 
 a wrongful alienation, tending to the disherison of the reversioner, or 
 remainder-man, the sale of his interest as tenant, has no such effect. 
 
 Eeeor to the Circuit Court of Macon. Judgment by his Honor 
 Geoege W. Stone. 
 
 Trespass to try title, by the plaintiffs in error. From a bill of 
 exceptions it appears, that one Mary Wells, under the 2d article of the 
 Creek treaty of the 24th March, 1832, was enrolled as the head of a 
 family, and located on the land in controversy, and that the defendant 
 was in possession at the commencement of this suit. The plaintiffs are 
 the children of Mary Wells, who was not more than one-fourth of 
 Indian blood. 
 
 That in 1821, she was married to one William J. Wells, a white man, 
 by an authorized officer in Monroe county, in this State, according to 
 the laws of this State, and whilst residing among the whites, and out 
 of the limits of the Creek tribe. That shortly after the marriage, they 
 removed within the limits of the Creek tribe, and remained domiciled 
 with the tribe until the year 1 828, when they with their children, the 
 plaintiffs, went to the Ten Islands, where Wells took up with another 
 woman, and the said Mary repaired with her children, the plaintiffs, to 
 her father's residence in the Creek territory. After this, and before the 
 treaty of 1832, Wells visited the residence of the father of the said 
 Mary, and took and carried the plaintiffs, who were at that time minors, 
 to the State of Arkansas, and neither he nor the children returned to her 
 during her life. 
 
 It was proved, that by the laws and customs of the Creek tribe, a 
 man was allowed to take a wife, and abandon her at pleasure, and that 
 this worked an absolute dissolution of the marriage state, and the par- 
 ties were not allowed to marry again, until after the succeeding annual 
 green corn dance. That the husband took no part of the personal effects 
 of the wife by the marriage, and at her death her personal estate de- 
 
Wells and Wells v. Thompson. 249 
 
 scended to her children, or next of kin. In regard to real estate, it was 
 in proof, that each town had its regular possession under a separate 
 control, worked in common, each occupying a suitable spot within the 
 enclosure, the unappropriated soil being free to all. There was no such 
 thing known among them as title to lands. That if a house was erected 
 by the husband it belonged to him ; if by the wife to her. 
 
 The defendant then proved, that about the year 1836, he purchased 
 the land in controversy from Wells, for |1800, and introduced and read 
 a patent from the United States, to the defendant, for the land in con- 
 troversy, issued on the 1st June, 1843, which recites that Mary Wells, 
 wife of William J. Wells, by virtue of the treaty of 1832, became enti- 
 tled to a tract of land, which is described ; that Wells had sold the 
 same to the defendant, with the approbation of the President of the 
 United States, etc., etc. There was no proof that either Mary J., or 
 William J. Wells, were ever in the actual occupation of the lands. 
 
 The defendant moved to exclude the patent from the jury, which the 
 Court refused, and he excepted. 
 
 The Court charged, that if William J. and Mary Wells, were mar- 
 ried in 1821, according to the law of Alabama, if he was living at the 
 time of the treaty, and continued in life until 1836, his abandonment 
 of his wife in 1828, did not work a dissolution of the marriage contract, 
 though such might be the custom of the Indian tribe. That in that 
 state of case, Mary Wells was not the head of a Creek Indian family, 
 and should not have been located. That the defendant was estopped 
 from denying that Mary Wells was located, but it was competent for 
 him to show that her husband, William J. Wells was the head of the 
 family, and of right entitled to the location. That it was competent for 
 the government to correct its own errors, and the patent, if the facts are 
 believed, might be regarded as such correction by the government, by 
 the act of its agent; and if said Wells, being the surviving husband 
 of Mary, sold to the defendant, and pursuant to that sale the patent 
 issued, they must find for the defendant. 
 
 The Court refused to charge, that a change of the residence of Wells 
 and his wife, to the Indian nation, his abandonment of her, and removal 
 to Arkansas — ^the continued residence of Mary afterwards, she being of 
 Indian extraction, in the Indian nation, was under the proof a dissolu- 
 tion of the marriage. 
 
 The Court also refused to charge, that the act of the officer of the 
 
250 "Wells and Wells v. Thompson. 
 
 United States, appointed to take the census of the heads of Creek In- 
 dian families, determining Mary Wells to be the head of a family, and 
 placing her name on the census roll, was conclusive on the government, 
 and all persons claiming under it. The plaintiff excepted to the action 
 of the Court as stated in the bill of exceptions, and now assign it as 
 error. 
 
 8. F. Rice, for plaintiffs in error. 
 
 1. A patent issued in violation of law, or obtained by fraud, is void. 
 And the head of a Creek Indian family enrolled and located under the 
 treaiy of 1832, may show such enrolment and location to defeat a pat- 
 ent subsequently issued. Ladiga v. Rowland, 2 How. U. S. Eep. 581. 
 
 2. The Creek treaty of 1832, is itself the title of the head of a Creek 
 family, to the half section of land on which such head of a family is 
 located by the officer of the government ; and this title is paramount to 
 that conferred by a patent subsequently issued. 
 
 3. The location of the head of a Creek family upon a half section 
 of land, by the officer of the government, under the Creek treaty of 
 1832, is conclusive upon the government, and all persons claiming under 
 the government by purchase subsequent to the location. Orommelin v. 
 Minter, 9 Ala. E. 594 ; 8 Smedes & Mar. K. 234 ; Hit-tuh-ho-mi v. 
 Watts, 7 lb. 363; Smede's Dig. 179; § 12. 
 
 4. The recitals in a patent are conclusive upon the party claiming 
 under it. And as the patent to the defendant in this case distinctly 
 admits, that the mother of the plaintiffs was entitled to the land by 
 the treaty of 1832, that admission estops the patentee (as well as the 
 government) from denying the plaintiff's title — when it is shown that 
 the plaintiffs are the heirs at law of Mary Wells. (The laws of Ala- 
 bama were extended over the Creek territory on the 16th day of Janu- 
 ary, 1832, and long before the death of plaintiff's mother; and there- 
 fore her children are by that law entitled to her rights in the land.) 
 Brasher v. Williams, 10 Ala. Rep. 630. See the act of 16th January, 
 1832, entitled " an act to extend the jurisdiction of the State of Ala- 
 bama," etc., etc. 
 
 5. Marriage in Alabama has ever been dissoluble. A marriage be- 
 tween a white man and a Creek Indian woman, in a county (Monroe) 
 subject to the jurisdiction of the laws of Alabama, may be dissolved 
 according to the laws and customs of the Creek tribe, if the parties 
 
Wells and Wells v. Thompson. 251 
 
 acquired an actual bona fide domicile in the Creek nation before the 
 dissolution, and before the laws of Alabama were extended over the 
 Creek Indian territory. Story's Confl. of L., § 230, a, 2d ed. ; Dorsey 
 V. Dorsey, 1 Chand. L. Rep. 287, 289 ; Wall v. Williamson, 8 Ala. Eep. 
 48 ; Wall v. Williams, 11 lb. 826. 
 
 6. " While the parties remain subject to our jurisdiction, the marriage 
 is dissoluble only by our law ; when they are remitted to another, it is 
 incidentally remitted along with them." Story's Confl. of L., supra; 
 WaU V. Williamson, 8 Ala. Eep. 48. 
 
 7. The dissolution of the marriage between Mary Wells, and her hus- 
 band, occurred many years before 1832, when the laws of Alabama were 
 extended for the first time over the Creek territory. The Indian law 
 was the only law of force in that territory, when the dis^plution of the 
 marriage occiured. And it would be a most harsh and unjustifiable 
 mode of construing the treaty of 1832, to say that Mary Wells was 
 entitled to nothing under it, although by the Creek Indian law, she was 
 completely divorced from her husband. In the construction of this 
 treaty, and in all acts done under it, the customs and laws of the Creek 
 tribe have been carefully observed and regarded. The very terms used 
 in the treaty, " every head of a Creek Indian family," necessarily imply 
 that regard was to be paid to the Indian laws in determining their family 
 relations. Wall Y.Williams, 11 Ala. R. 826. 
 
 8. The patent being void, is void for all purposes ; and could not be 
 good to transfer to defendant the curtesy of the husband, even if he had 
 been tenant by the curtesy. But it is manifest that he was not tenant 
 by the curtesy, for many reasons — one of which is, that he was divorced 
 from his wife long before the Creek treaty of 1832, and before either 
 had any interest in the land. And " the effect of this dissolution of the 
 marriage, according to the Indian laws, is the same in the courts of Ala- 
 bama, as if directed by a lawful decree." Wall v. Williamson, 8 Ala. 
 E. 48 ; Wall v. Williams, 11 Ala. E. 826. 
 
 9. The title of the plaintiffs is clearly made out to the land. And 
 every point ruled against them on the trial, was a violation of the law 
 of the country. See the cases above cited. 
 
 McLester and Belser, for defendant in error. 
 
 1. The marriage between Wells and his wife in 1821, was properly 
 proved. The marriage itself was neither polygamous nor incestuous, 
 
252 Wells and Wells v. Thompson. 
 
 and such a contract, in a civilized country, exists throughout time, unless 
 it be annulled by death or by some legal decree. See Corn v. Norcross, 
 9 Mass. 492 ; Fenton v. Beed, 4 Johns. 63; 16 Mass. 157 ; Milford v. 
 Woraesler, 7 Mass. 52 ; Car. Law Jour. 94, 377. 
 
 2. The marriage having taken place among the whites, and in accord- 
 ance with their law, Wells became and continued, the head of the fam- 
 ily. The case is different from that of a union between two persons of 
 the Indian tribe, entered into according to the usage of the tribe, and 
 at a time and place, when and where, their laws were in force. See Sto. 
 Confl. Laws 122; Wall y. Williamson, 8 Ala. 48; Wall Y.Williams, 11 
 Ala. 826. 
 
 3. The plaintiffs are concluded by the action of the government. 
 The patent hsB issued — ^the matter has been settled by a competent tri- 
 bunal. The record shows no such case as that of Sally Ladiga, settled 
 by the Supreme Court of the United States. It comes within the prin- 
 ciple of some of the decisions of this Court. See Sally Ladiga's Case, 
 2 Howard 681 ; ParsoTis's Heirs v. Ing^s Heirs, 6 Porter 327. 
 
 4. The bill of exceptions does not show to whom the real estate of 
 an Indian descends, according to the custom of the Creek tribe. In 
 the absence of such proof, our law must govern. If our law governs, 
 then, there is no evidence of the death of Wells, before the commence- 
 ment of the suit. If Wells is alive, (and this is the presumption, until 
 the contrary is made to appear,) even if his wife was the owner of the 
 land, still his transferee can hold it during the life of Wells ; therefore, 
 plaintiff's suit must abate. See McLain v. Gregg, 2 A. K. Marsh 454 ; 
 Conly V. Porter, 12 Ohio 79 ; Davis v. Mason, 1 Peters 503 ; Jackson 
 V. Lellech, 8 Johns. 202 ; Glute v. Miller, 2 Cowen 439. 
 
 5. There is nothing in the record, going to prove that Mrs. Wells 
 was the head of a family, independent of her husband, at the date of 
 the treaty of 1832, or when she was located on the land. If the loca- 
 tion was unauthorized, her heirs have no right to complain. 
 
 Collier, C. J.— By the treaty of the 24th of March, 1832, the 
 Creek tribe of Indians ceded to the United States all their land east of 
 the Mississippi River. The United States engaged by the same instm- 
 ment to survey this land as soon as the same could be conveniently done, 
 and when surveyed to allow ninety principal chiefs of the tribe to select 
 one section each, and every head of a Creek family to select one half 
 
"Wells and Wells v. Thompson. 253 
 
 section each, " which tracts shall be reserved from sale for their use for 
 the term of five years, unless sooner disposed of by them. A census 
 of these persons shall be taken under the direction of tlie President, and 
 the selections shall be made so as to include the improvements of each 
 person within his selection, if the same can be so made, and if not, then 
 all the persons belonging to the same town, entitled to selections, and 
 who cannot make the same, so as to include their improvements, shall 
 talte them in a body in a proper form." It is provided by the third 
 article of the treaty, that " these tracts may be conveyed by the persons 
 selecting the same, to any persons for a fair consideration, in such man- 
 ner as the President may direct. The contract shall be certified by 
 some person appointed for that purpose by the President, but shall not 
 be valid till the President approves the same. A title shall be given 
 by the United States on the completion of the payment." The fourth 
 article declares, that " at the end of five years, all the Creeks entitled 
 to these selections, and desirous of remaining, shall receive patents 
 therefor in fee-simple from the United States." 
 
 Without stopping to inquire what the law may be, upon the point, it 
 may be conceded that the enrolment of the name of Mary Wells as the 
 head of a Creek family, and the allotment to her as such, of the land 
 in controversy, gave her prima facie a legal estate, on which she might 
 maintain an action for the recovery of the possession against an intruder. 
 It may also be conceded that if she died before the expiration of five 
 years, without conveying the same as provided by the thu-d article, that 
 her interest did not revert to the United States, but descended to her 
 heirs to be disposed of by them, if adults, or to hold under the pro- 
 visions of the fourth article. But in the case before us, it does not 
 appear the reservee was in possession, or asserted her right to the land 
 by conveying it, or otherwise ; and although she died within the five 
 years, her heirs did not within that time set up their claim to it. In 
 fact, previous to the treaty, they removed with their father to Arkansas, 
 and did not again return to Alabama until after the death of their 
 mother. 
 
 The title acquired by the " head of a Creek family" under the treaty, 
 was to continue for five years, unless it was sooner conveyed with the 
 approval of the President; but if there was no such conveyance, it 
 reverted to the United States, unless the reservee or his heirs were 
 desirous of remaining in the country after the expiration of that period. 
 22 
 
254 Wells and Wells v. Thompson. 
 
 True, this is not explicitly declared, yet it follows from the terms em- 
 ployed in the fourth article, in which the United States stipulate to 
 issue patents to all the reservees who are " desirous of remaining " " at 
 the end of five years." All the title of the Indian tribe passed from 
 it, and the federal government became the proprietor of the fee in the 
 territory they had previously occupied. The government engaged, 
 among other things, to allot half sections of land to each head of a 
 family, to be enjoyed for five years absolutely, and in fee upon certain 
 conditions. Here was the grant of a fee-simple estate, defeasible on the 
 happening, or rather the not happening of the event specified. If the 
 condition was not performed as provided, the title of the reservee deter- 
 mined, and the land revested in the United States without an entry, or 
 other act on the part of its agents. See University of Alabama v. Win- 
 ston, 5 Stewt. & P. Eep. 17 ; Gill v. Taylor, 3 Port. Eep. 182 ; Kennedy 
 & Moreland v. McCartney's Heirs, 4 Port. Eep. 141 ; Orommeliny. Min- 
 ter et al., 9 Ala. R. 594, 600. If this view be correct, it follows that the 
 failure of the reservee or her heirs to take possession of the land allot- 
 ted to her, or in any manner signify a desire to remain in this State after 
 the five years expired, determined the estate to which they would have 
 been otherwise entitled. 
 
 This interpretation of the treaty is enforced by an act of Congress 
 of the 3d of March, 1837, which authorizes the President to cause all 
 reserves belonging to the Creek Indians by virtue of the treaty, and 
 remaining unsold on the fourth of April thereafter, (precisely five years 
 after the treaiy became operative,) to be sold at public auction, etc. The 
 second section of the act authorizes the President to confirm the sales 
 made by the widow, the widow and children, the children, or the lawful 
 administrator of Creek Indians who had died or might die prior to the 
 fourth of April, without having legally disposed of their reserves, and 
 to receive the unpaid purchase-money, etc. By the third section, the 
 President is invested with a discretion in the investment and paying 
 over to the persons entitled, the money received from the purchasers of 
 reserves. 5 U. S. Stat, by Peters, 186. The terms of this enactment 
 go quite beyond what the terms of the treaty justify, and profess to 
 direct the sale of all reserves, and of course those where the reservee is 
 " desirous of remaining." But in respect to reserves, the allottees of 
 which do not come within the latter category, and have not conveyed 
 their interests, the act is potent to show that Congress supposed they 
 
Wells and Wells v. Thompson. 255 
 
 reverted to the United States immediately upon the expiration of the 
 period prescribed by the treaty. The statute could not have been en- 
 acted upon any other hypothesis. This is indicated by the provision 
 for confirming irregular sales, and the discretion conferred in respect to 
 the purchase-money to be received under the direction of the President, 
 as well as the power assumed by the first section of the act. 
 
 There is perhaps another objection to the plaintiff's title equally fatal 
 to their right to recover in the present action, as that we have consid- 
 ered. Mrs. Wells was of Indian extraction, but not more than one- 
 fourth Indian blood, and married William J. Wells, according to the 
 laws of Alabama, in Monroe county, in 1821, where they both resided. 
 Shortly after their marriage, they removed into the country occupied 
 by the Creek tribe, where they resided until 1828, when they again 
 moved to the " Ten Islands" with their children (the plaintiffs). At 
 this latter place the husband formed an adulterous connection with 
 another woman, and Mrs. Wells left him with her children, and went 
 to her father's house in the Creek territory, whither he had removed 
 after her marriage in 1821. There is no law of this State, which inhib- 
 its the marriage of a white man with a woman whose blood partakes of 
 the white and Indian races ; and if such a marriage is consummated 
 between persons able and willing to contract, the parties become subject 
 to all the disabilities, and are entitled to all the rights and privileges 
 incident to such a relation. See Frank and Lucy v. Denham's Adm'r, 
 5 Litt. Rep. 530. 
 
 Monroe county was the domicile of both the parties at the time they 
 were married, and it cannot be inferred that they then contemplated a 
 residence without the j urisdiction of Alabama. Their subsequent removal 
 to the Creek territory did not ipso facto dissolve their connection. Even 
 conceding that they became affiliated with the tribe, did the customs of 
 the nation in respect to marriage, so revolting to Christianity, furnish 
 rules by which the obligations and duties of that state — its permanency 
 and incidents, when solemnized in a civilized country, should be ascer- 
 tained and determined. We should long hesitate before we would give 
 to this question an affirmative response. It involves other considera- 
 tions than those which have arisen upon the discussions whether the 
 strength and perpetuity of the vinculum fidei depends upon the domicile 
 of the marriage, or the subsequent residence of the parties. See Story's 
 Confl. of Laws 188 to 192, and citation in the notes; 2 Clarke & F.' 
 
256 WsLLS AND Wells v. Thompson. 
 
 Rep. 488. But however this question may be settled when it shall 
 come up in judgment, is perhaps not now a material inquiry ; for it does 
 not appear that Mrs. Wells separated from her husband until they had 
 fixed their residence at the Ten Islands. The bill of exceptions does 
 not inform where these islands were located, but we must judicially 
 know their position, and that they are in a river, which in 1828 formed 
 a dividing line between the Creek tribe and the settled portion of Ala- 
 bama ; and from the manner in which the facts are stated, the fair infer- 
 ence is, that Mrs. Wells and her husband settled west of the line. Mrs. 
 Wells then abandoned her husband within the jurisdictional limits of 
 this State, and by such an abandonment unsanctioned by a divorce in 
 due form, their marriage could not be dissolved. 
 
 The marriage, then, of W. J. Wells with the plaintiffs' mother, and 
 the birth of issue capable of inheriting, being proved, the husband be- 
 came tenant by the curtesy initiate of the inheritable estate of his wife 
 in lands, and by the death of the wife this tenancy became consummate. 
 By the common law as administered in England, it was essential to an 
 estate by the curtesy that the wife should have had an actual seizin or 
 possession of the land, and not a bare right to possess, which is a seizin 
 in law. 1 Step. Com. 246 et seq. But this rule has been relaxed in 
 this country ; and if the wife be the owner of waste, uncultivated lands, 
 not held adversely, she is deemed seized in fact, so as to entitle her htis- 
 band to his right of curtesy. The title to such property draws to it the 
 possession ; and that constructive possession continues in judgment of 
 law, until an adverse possession be clearly made out. 4 Kent's Com. 
 29 et seq. It is said that curtesy applies as well to qualified or con- 
 ditional, as to absolute estates in fee. Id. 32 ; 8 Johns. Rep. 262 ; 1 
 Pet. Rep. 506 ; 5 Cow. Rep. 574. 
 
 The bill of exceptions does not inform us whether the land in ques- 
 tion was occupied during the lifetime of Mrs. Wells under an adverse 
 claim, and it may be inferred that it was not, as the husband sold it 
 several years after her death to the defendant and others. The reservee, 
 then, had such a constructive possession as would invest her husband 
 with an estate by the curtesy, if the interest which the United States 
 gave her still continues ; and during his life the right of entry and pos- 
 session cannot vest in the plaintiffs as the heirs of their mother. 
 
 Although the statute of Westminster the 2d declares, that the wife's 
 dower shall be lost by her adultery, no such misconduct on the part of 
 
Wells and "Wells v. Thompson. 257 
 
 the husband will work a forfeiture of his curtesy. And it has been said 
 that the forfeiture of the wife's estate by her act will not defeat the 
 curtesy. 4 Kent's Com. 34. 
 
 The husband, as well as any other tenant for life, may forfeit his 
 curtesy by a wrongful alienation, or by making a feoffment, or levying 
 a fine importing a grant in fee, suffering a common recovery, joining 
 the mise in a writ of right, or by any other act tending to the disherison 
 of the reversion or remainder-man. 4 Kent's Com. 34. This is the 
 rule of the English common law, and it seems has been recognized in 
 Maine. 21 Maine Rep. 372. But in McKee v. Pfout, 3 Dall. Eep. 486, 
 it was held, that a conveyance in fee by a tenant by the curtesy, though 
 by indenture duly recorded, and with a covenant of special warranty, 
 is not a forfeiture of the estate. 
 
 In the case at bar, there is nothing in the record to indicate that W. 
 J. Wells attempted to convey to his vendees a greater interest than his 
 estate by the curtesy. The recital in the patent is, that the land had 
 " been duly sold and conveyed by William J. Wells, to Julian S. Dev- 
 ereux, Moses Thompson, and Weldridge C. Thompson, as appears by 
 the conveyance thereof,, dated the 3d day of March, 1836, approved by 
 the President of the United States the 18th day of September, 1841, " 
 and deposited in the general land office of the United States." The 
 inference from this is, that the vendor transferred his estate in the land 
 to the vendees according to law ; and this conclusion is strengthened by 
 the fact, that the usual form of conveyances by reservees under the 
 treaty, was nothing more, in legal effect, than a relinquishment of their 
 title to the purchaser named in the contract. So that, conceding the 
 strict rule of the common law to be applicable in this State, it is not 
 shown that the husband's curtesy has been forfeited by a conveyance of 
 the fee. 
 
 We do not intend to be understood as asserting that the estate of W. 
 J. Wells, as a tenant by the curtesy, or otherwise, continued beyond the 
 4th of April, 1837. But if the interest of Mrs. Wells, as derived from 
 the treaty, and her subsequent recognition as the -head of a " Creek fam- 
 ily," survived that period, it will not descend to the plaintiffs during 
 the life of their father, but vests in the latter, or his assignees, to be 
 enjoyed until his death. ^ 
 
 It is not material to consider other questions discussed as to the effect 
 of the evidence of title set up by either party. The plaintiffs, we have 
 22* B 
 
258 Jackson v. Johnson. — Wells v. Thompson. 
 
 seen, have failed to show such a right as will sustain their action ; and 
 as they must recover upon the strength of their own claim, and not 
 upon the weakness of that of their adversary, we will not stop to ex- 
 amine the pretensions of the defendant. We have but to add, that the 
 judgment of the Circuit Court is affirmed. 
 
 Chilton, J., not sitting. 
 
 Tenant by the curtesy of England, is where a man taketh a wife seized 
 in fee-simple or in fee-tail general or seized as heir in taU special, and hath 
 issue by the same wife, male or female, born alive, albeit the issue after 
 dieth or liveth, yet if the wife dies, the husband shall hold the land during 
 his life by the law of England, Lit., Sec. 35, 29 a. 
 
 The generality of the above statement must be somewhat limited by 
 another, viz., that the issue born alive must be such as could by possibility 
 inherit the mother's estate. Lit., Sec. 2, 40 a ; and, therefore, though there 
 be issue, yet if the issue could not inherit the mother's estate as heir, as 
 where a woman is seized in tail male, and has issue a daughter only, in that 
 case her husband could take no estate by the curtesy, 2 Bl. Com., p. 128, 
 Co. Lit. 29 ; and the definition must be fiirther qualified by the remark 
 that the husband will likewise have curtesy in an estate of which the wife 
 becomes seized duriag the coverture, Co. Lit. 29 b. 
 
 Littleton further says, that " he is called tenant by the curtesy of Eng- 
 land, because this is used in no other realm, but in England only." This 
 is, however, incorrect, since it is found in Scotland, Ireland, Normandy, and 
 amongst the Germans, Co. Lit. 30 a ; Pat. 11, Hen. 3 m. 3 ; Hale, Hist. 
 Com. Law 180; Muor, c. 1, § 3; Wright, Ten. 193; according to the Cou- 
 toumier, c. 119, the estate lasted in Normandy only during the widowhood 
 of the husband. Blackstone, Lib. 2, 126, following Littleton, attributes 
 the introduction of the estate to Henry L, or at least gives no other account 
 of its origin. Wright, however, claims for it a much more ancient exist- 
 ence, he says : " Tenancies by the curtesy, or per kgem terrae, though so 
 called, as if they were peculiar to England, were known not only in Scot- 
 land, but in Ireland, and in Normandy also ; and the like law or custom is 
 to be found among the ancient Almain laws ; and yet it doth not seem to 
 have^ been feudal, nor doth its original anywhere satisfactorily appear. 
 Some English writers ascribe it to Henry I. ; but Nathaniel Bacon calls it 
 a law of counter tenure to that of dower ; and yet supposes it as ancient 
 
Jackson v. Johnson. — Wells v. Thompson. 259 
 
 as from the time of the Saxons, and that it was rather restored by Henry 
 I. than introduced by him. But as there are no notices of this curtesy 
 among the laws of the Saxons, or among those we have of Henry I., I shall 
 propose Mr. Crag's conjecture as the most rational I have met with, who is 
 so far from thinking it feudal that he is of opinion that the original of it 
 is ex Jure Oivili non incommode deduei potest ; ex Constantini enim Resoripti 
 (says he) sanctum est, ut haereditatis maternae Pater usumfruetum filii pro- 
 prietatem." 
 
 ' The estate by curtesy may be said to exist, or to have existed, in all 
 of the United States, whose laws are the outgrowth of the common law, 
 and, whUe it has been materially modified by statute in many of the 
 States, it has been abolished in but few, as will appear further on in this 
 note ; and the four essentials to the estate as laid down by Coke, 30 a, viz., 
 marriage, seizin of the wife, birth of issue, and death of the wife, have 
 been so often recited in the opinions of learned American judges, that it is 
 unnecessary to cite authority to show that they have been recognized as 
 essentials to the estate amongst us. 
 
 Curtesy Initiate. 
 
 Tenancy by the curtesy is of two kinds, or rather consists in two stages 
 — curtesy initiate and curtesy consummate. The first stage begins upon 
 the birth of issue capable of inheriting the estate from the mother, Stewart 
 V. -Ross, 50 Miss. 776 ; Foster v. Marshall, 22 N. H. 491 ; Marahle v. Jordan, 
 5 Humph. 417. It has been sometimes referred to the time of the mar- 
 riage, but this is erroneous, and arises from confiising the estate by curtesy 
 with the right, in a wife's land, given to the husband by virtue of the mar- 
 riage, as said by Chief-Justice Gibson in the Lancaster County Bank v. 
 Stauffer, 10 Pa. St. 398. " It has sometimes been said that a husband is 
 tenant by the curtesy initiate by the marriage, but there is no curtesy in 
 any degree before the birth of issue ; for though the marriage is the foun- 
 dation of the whole, it does not constitute it at the common law. The hus- 
 band indeed becomes seized of a freehold by the marriage, but it is his 
 wife's freehold, not his, insomuch that both must do homage for it. In 
 contemplation of law, therefore, her person is his person, and her seizin 
 his seizin. After issue born, he has a separate estate." 
 
 In Monroe v. Van Meter, 100 111. 367, where a marriage had taken place 
 before, and issue had been born after the passage of an act abolishing 
 curtesy, it was held that the husband had, prior to the passage of the act, 
 acquired no such estate as would be protected from destruction on the 
 ground of its being a vested right. 
 
260 Jackson v. Johnsojs^. — ^Wells v. Thompson. 
 
 Curtesy Consummate. 
 
 The tenancy by the curtesy becomes consummate upon the death of the 
 wife, Co. Lit. 30 a ; 2 Blackst. 128. And it is held that until the estate be- 
 comes consummate, there is no such estate of freehold in the husband ' as 
 would merge a term in which he is entitled in his own right. In Jones v. 
 Davies, 7 Hf & N. 766, in which this point was decided by the Court of 
 Exchequer, Pollock, C. B., quoting Coke, said : " According to this high 
 authority then it would seem that until the wife's death, when the estate 
 would be ' consummate,' the husband would only be tenant by the curtesy 
 for certain limited purposes.'' In the same case in the Exchequer Cham- 
 ber, Weightmait, J., said : " It is only upon the death of the wife that the 
 husband becomes tenant by the curtesy in the proper sense of the term . . . 
 During the life of the wife he is only what is called ' tenant by the curtesy 
 initiate,' and as such is respected in law for some purposes, which are enumer- 
 ated by Lord Coke, but he is not tenant by the curtesy ' consummate,' so 
 as to give him a separate and independent estate of freehold until the death 
 of the wife." 
 
 liBgal Marriage necessary to sustain Curtesy. 
 
 The marriage necessary to sustain the estate by curtesy must be a legal 
 one, Co. Lit. 30 a. Blackstone says a "legal and canonical" one, 2 Blackst. 
 Com. 127, but this seems to be going too far, for a marriage within the 
 Levitical degrees is voidable only, and if not avoided by a divorce obtained 
 in the lifetime of the wife, the husband will take his estate by the curtesy. 
 See Preston, Estates 473, 478. The marriage must be between people 
 capable of contracting a marriage, and curtesy cannot arise where one of 
 the parties is an idiot or insane, for in that case the marriage is void, ab 
 initio. See Turner v. Meyers, 1 Hag. Consis. 416, and Morison v. Stewart, 
 Delegates, 1745, cited by Sir WiLLLiM Scott in Turner v. Meyers at page 
 417, 
 
 Birth of Issue. 
 
 Issue capable of inheriting the mother's estate must be born alive, Co. 
 Lit. 29 b. There was at one time a theory that the child must be heard 
 to cry out, but this theory, which was probably based on the occurrence in 
 a writ of Henry III., anno 11, of the clause " et ipse postmodum ex eapro- 
 lem svsGitaverit, cujus clamor auditus fuerit inter quatuor parietes," is no 
 longer in accord with the law, if it ever was, and the cry of the child is 
 simply regarded as one amongst other proofe of life, Co. Lit. 29 b ; 2 Blackst. 
 Com. 127, 
 
Jackson v. Johnson. — Wells v. Thompson. 261 
 
 It was formerly held that the birth must be in the lifetime of the mother, 
 Co. Lit. 29 b, and it was said by Lord Coke, that where a delivery was 
 effected by the Csesarean operation there could be no curtesy, for the child 
 was not born durmg the coverture. Paine's Case, 8 Co. 35 a ; Co. Lit. 
 29 b ; 2 Blackst. Com. 130. It is suggested by Mr. Tudor in his note to 
 Lewis Bowles's case, Tudor's Leading Cases in Eeal Property, p. 65, that 
 at the present day a child en ventre sa mere might now be considered as in 
 esse for all purposes ; in support of this he cites, Thellusson v. Woodford, 4 
 Ves. 323, and 1 Bright, Husb. & Wife 124 ; he admits, however, that one 
 of the difficulties suggested by Lord Coke still exists, namely, that the estate 
 during the short interval succeeding the wife's death descends to her next 
 heir and is not divested ah initio by the birth of the child ; citing 1 Roper, 
 Husb. & Wife 31 ; Basset v. Basset, 3 Atk. 207 ; Goodlitle v. Newman, 3 
 WDs. 516 ; 4 Ves. 335. 
 
 If the child is bom alive it matters not whether it die before its mother, 
 or how long it Kves, for its existence, though but for an instant, vests in the 
 husband an estate by the curtesy initiate, which is not divested by the death 
 of the child, Phillips v. Ditto, 2 Duv. 549 ; Malone v. McLaurin, 40 Miss. 
 161 ; Taliaferro v. Burwell, 4 CalL 321 ; Bush v. Bradley, 4 Day 298 ; Say 
 v. Mayer, 8 Watts 203. 
 
 As it is held that the requisites for an estate by the curtesy need not 
 coincide in point of time, Co. Lit. 29 b, it is held that where children are 
 bom to a man and a woman in an illicit connection, in a State where' 
 bastards are legitimatized by the subsequent marriage of their parents, 
 and the parents subsequently marry and have no other issue, the right to 
 curtesy in all the lands of which the wife may be seized during coverture 
 will vest in the husband. Hunter v. Whitworth, 9 Ala. 965. 
 
 In some States of the Union birth of issue is no longer necessary to give 
 the husband an estate by curtesy, but the husband surviving the wife will 
 take the estate, where no children have been born. See Oregon Gen. Laws, 
 ch. XVIL, Tit. II., § 30, p. 588 ; Alabama, Code 1876, Tit. 5, ch. 1, § 2714; 
 Michigan, 2 Comp. Laws (1857), ch. 89, § 30, p. 856 ; Minnesota, 1 Stat, at 
 Large (Bissell 1873), ch. 32, § 164, p. 630 ; Nebraska, Comp. Stat (1881), 
 ch. 23, § 29, p. 215 ; Ohio Eev. St. (1880)^ § 4176, p. 1046, and the same 
 is held to be the law in Pennsylvania since the passage of the married 
 woman's act, Gamble's Estate, 5 Clark 4 ; S. C. 1 Parsons 489. 
 
 We have seen a rather striking instance of the rule that the essentials 
 of curtesy need not coincide in time ; so, by the same rule, the birth of 
 issue and seizin need not be at the same time, and, therefore, where there is 
 a seizin during coverture and the land is conveyed and issue is afterwards 
 bom, or where the land is acquired after the death of the issue, in either 
 
262 Jackson v. Johnson. — Wells v. Thompson. 
 
 case the husband will be entitled by the curtesy, Gfuion v. Anderson, 8 
 Humph. 298 ; Phillips v. Ditto, 2 Duv. 549 ; Jackson v. Johnson, 5 Cow. 
 74 ; Heath v. White, 5 Conn. 235. In the last case the Court denied that 
 the estate by the curtesy rested, entirely, on the obligation of the husband 
 to support and maintain the children of the marriage, and instanced as 
 evidence in support of its position the fact that a man marrying a widow 
 with children by a former husband, and afterwards having issue by her, 
 would take the whole estate as tenant by curtesy. 
 
 Estates in whicli Curtesy is given. 
 
 The estate by curtesy at common law embraces all estates of inheritance 
 held by the wife, and this is the general law in the United States. In 
 Vermont, however, there is no curtesy in an estate tail, it being held that 
 the Act of October 31, 1823, by expressly mentioning curtesy in estates in 
 fee-simple, excluded the ordinary common law rule, Giddings v. Cox, 31 Vt. 
 607, and it is also, there, held, that the statute which converts an estate tail 
 into a fee-simple in the hands of the issue in tail will not alter the case so 
 as to give the husband of the wife tenant in tail, an estate by the curtesy, 
 the sole question for consideration being of what estate was the wife seized 
 during the coverture, and that being an estate tail and no enlargement of 
 it taking place during her seizin, the husband is not entitled, Haynes v. 
 Bourn, 42 Vt. 686. 
 
 Curtesy in Conditional and Qualified Estates. 
 
 The estate by curtesy is attached not only to absolute but to qualified or 
 determinable estates and to those subject to conditional limitations. Wells v. 
 Thompson, 18 Ala. 793 ; Thornton's Executors v. Krepps, 37 Pa. St. 391 ; 
 even after the condition divesting the estate has happened, thus yhere there 
 was a devise to three sisters, A., B., and J., and the will contained a pro- 
 vision that in case of the death of any one without leaving issue, her share 
 should go to the others, and J. married and had a child who died before 
 her mother, it was held after J.'s death that her husband was entitled to his 
 curtesy, Orumley v. Deahe, 8 Baxt. 361. [See as to the distinction, with 
 reference to curtesy, between a condition and a limitation, infra pp. 282-3. 
 
 Curtesy given in EquitaTile Inheritances, but not in mere Equi- 
 ■ table Rights. 
 
 The right to tenancy by curtesy extends to equitable estates of inherit- 
 ance of the wife, Robinson v. Codman, 1 Sumn. 121 ; Shoemaker \. Walker, 
 
Jackson v. Johnson. — Wells v. Thompson. 263 
 
 2 S. & K. 554 ; Baker v. Heiskell, 1 Cold. 641 ; Dubs v. Dubs, 31 Pa. St. 
 149 ; Rawlings v. Adams, 7 Md. 26 ; [in Maryland, curtesy in an equitable 
 estate is expressly given by statute, provided it shall not take effect to the 
 prejudice of any claim for purchase money or other lien on the wife's estate. 
 Kev. Code (1878), Art. XLV., § 2, p. 397 ; it is given by statute in West 
 Virginia also. Rev. St. (1879), eh. 82, § 17 ;] Taylor v. Smith, 54 Miss. 50 ; 
 Tremnel v. EMboldt, 6 Mo. App. 549 ; Bak&r v. Nail, 59 Mo. 268 ; Alex- 
 ander V. Warranee, 17 Id. 228 ; Gilmore v. Oilmore, 7 Oreg. 374 ; but the 
 husband is not entitled to curtesy in a mere equitable right. In Sentill v. 
 Robeson, 2 Jones, N. C. Eq. 510, the law, as to this point, was thus stated 
 by Pearson, J., "A husband is entitled to curtesy in a trust or other equi- 
 table estate of his wife. This means an express trust — one by the consent 
 of the parties so as to give an estate in equity as distinguished from a right 
 in equity." And the Court held that there could be no curtesy in a right 
 to convert an apparent owner of land into a trustee for the wife. 
 
 There can be no curtesy in a preemption right, McDaniel v. Grace, 15 
 Ark. 465. 
 
 Seizin of Wife necessary. 
 
 Seizin is one of the necessary factors of an estate by the curtesy, and at 
 common law the seizin must have been in (Jeed, and seizin in law was not 
 sufficient to uphold the estate, Co. Lit. 29 a, and this has been held to be 
 the law here by some courts in this country. Thus in Stoddard v. Gibbs, 1 
 Sumn. 263, Stoey, J., held that the common law rule of seizin prevailed 
 in Massachusetts and Rhode Island, and in Neely v. Butler, 10 B. Mon. 48, 
 the Supreme Court of Kentucky upheld the rule, Simpson, J., who delivered 
 the opinion of the Court, thus stating the reason of the decision: "It is the 
 duty of the husband to enable him to protect the land from injury and for 
 the purpose of fortifying the title of his wife to take it into actual possession. 
 The wife being disabled by coverture to do it herself, the law devolves the 
 duty on the husband, and if he fails in its performance, he has no interest 
 in the land upon the death of the wife. The uniform course of the decisions 
 in this Court, therefore, has been to regard actual seizin by the husband 
 during coverture as necessary to entitle him to an estate in the land of his 
 wife after her death, as tenant by the curtesy." See also Mercer's Lessee v. 
 Seidell, 1 How. 37 ; Lessee of Barr v. Galloway, 1 McL. 476 ; Adams v. 
 Logan, 6 T. B. Mon. 175 ; Stinebaugh v. Wisdom, 13 B. Mon. 467 ; Welch's 
 Heirs v. Chandler, Id. 420. 
 
 The general tendency, however, has been to disregard the requirement 
 of actual seizin, as being no longer supported by the reason which formerly 
 
264 Jackson v. Johnson. — Wells v. Thompson. 
 
 existed. In some cases the Court has hesitated to go so far as to declare a 
 legal seizia sufficient under all circumstances, but has simply relaxed the 
 rule -with reference to certain kinds of land ; as said in Wells v. Thompson, 
 13 Ala. 793, s^pra : " By the common law as administered in England it 
 was essential to an estate by the curtesy, that the wife should have had an 
 actual seizin or possession of the land and not the bare right to possess, 
 which is a seizia iu law, 1 Steph. Com. 246 et seq. But this rule has been 
 relaxed iu this country ; and if the wife be the owner of waste, uncultivated 
 lands, not held adversely, she is to be deemed seized in fact, so as to entitle 
 her husband to his right of curtesy. The title to such property draws to 
 it the possession ; and that constructive possession continues in judgment 
 of law untU an adverse possession be clearly made out, 4 Kent Com. 29." 
 The rule here stated as to wUd lands, is also recognized iu Green y. Liter, 8 Cr. 
 243, in which case Stoey, J., states the reason of the relaxation of the old 
 rule : " The object of the law in requiring actual seizin, was to evince noto- 
 riety of title to the neighborhood and the consequent burthens of feudal 
 duties .... But in a mere uncultivated country, in wild and impenetrable 
 woods, in the sullen and solitary haunts of beasts of prey, what notoriety 
 could an entry or gathering of a twig or acorn convey to civilized man at 
 the distance of hundreds of miles ? " To the same effect as the foregoing 
 cases see Malone v. McLaurin, 40 Miss. 161 ; MeDaniel v. Or ace, 15 Ark. 
 468; Guion v. Anderson, 8 Humph. 298 ; Davis v. Mason, 1 Pet. 503 ; Fer- 
 guson V. Tweedy, 56 Barb. 168 ; Shores v. Carley, 8 Allen 425 ; Gillespie 
 v.For/ord, 2 Cold. 632. 
 
 In Jackson v. Johnson, 5 Cow. 74, the operation of the general rule of 
 actual seizia was considered by the Court to be of limited scope. Suthee- 
 LAND, J., said that in all cases where actual seizia of the wife had been re- 
 quired, it would be found that the wife claimed either as heir or devisee, 
 and the Court held that where the wife's title rested on a deed takiag effect 
 by the Statute of Uses, the corporal possession would be drawn to the legal 
 title "by a kiad of parliamentary magic." 
 
 An exception to the rule requiring actual seizin is also recognized where 
 entry or seizia during the coverture has been prevented by bodily fear. 
 Lessee of Barr v. Galloway, 1 McL. 476. 
 
 In other cases the courts have gone farther, and held that where the 
 wife was either actually possessed, or had the right of immediate possession 
 of the land, so that entry could have been made by the voluntary act of 
 the husband, and there was no adverse possession of the said land, there 
 was a sufficient seizia to support the estate by curtesy. Day v. Cochran, 
 24 Miss. 261 ; Rahb v. Griffin, 26 Id. 579 ; Redus v. Hayden, 43 Id. 614; 
 Bush V. Bradley, 4 Day 298 ; Wass v. Buchnan, 38 Me. 356 ; Is2ine v. Beebe, 
 
Jackson v. Johnson. — "Wells v. Thompson. 265 
 
 6 Conn. 494; Chewy. Commissioners of Southwarh, 5 Rawle 160; Eeaume 
 V. Chambers, 22 Mo. 36 ; McKee v. Cottle, 6 Mo. App. 416 ; Borland's Lessee 
 V. Marshall, 2 Ohio St. 308 ; WatUns v. Thornton, 11 Id. 367 ; Buchanan 
 V. Duncan, 40 Pa. St. 88. 
 
 It is also held expressly that even where a descent is cast upon the wife 
 during coverture, entry is not necessary to support curtesy. Harvey v. 
 Wickham, 23 Mo. 112 ; Stephens v. Hums, 25 Id. 349 ; JSeaume v. Cham- 
 bers, supra; Childers v. Bumgamer, 8 Jones, N. C. Law 297. 
 
 A recovery in ejectment has been held a sufficient seizin to support cur- 
 tesy, Ellsworth V. Cook, 8 Paige 643 ; so also a decree in equity settling 
 rights. Id. 
 
 Where a married woman owning a vested remainder in tail received a 
 surrender of the particular estate, it was held that she had acquired a suf- 
 ficient seizin to support an estate by the curtesy. Pierce v. Hakes, 23 Pa. 
 St. 231. 
 
 Where the wife is a minor, and her guardian retains possession of her 
 land after the marriage, his seizin is that of the woman so far as to support 
 the estate by curtesy. Powell v. Oossom, 18 B. Mon. 179 ; Phillips v. Ditto, 
 2 Duv. 549. 
 
 Where a husband and wife executed a deed of the wife's unimproved 
 land, purporting to pass the fee, and thfe deed was ineffective for want of a 
 proper certificate of acknowledgment, the entry of the grantees under the 
 deed was held to be a sufficient seizin to support the curtesy, and uphold, 
 until the husband's death, the possession of the grantee. Vanarsdall v. 
 Fauntleroy's Heirs, 7 B. Mon. 401. 
 
 Possession by a tenant for years, or at sufierance, is a sufficient seizin by 
 the wife for the purposes of curtesy. Malone v. McLaurin, 40 Miss. 161. 
 
 The seizin of one tenant in common is so far the seizin of another as to 
 enable her husband to claim by the curtesy. Wass v. Buckman, 38 Me. 
 356 ; Dunscomb v. Executors of Dunscomh, 1 Johns. Ch. 508 ; Buckley v. 
 Buckley, 11 Barb. 43 ; Childers v. Bumgamer, 8 Jones, (N. C.) Law 297. 
 The law in this respect being in accord with that of England, as it formerly 
 was, see Sterling v. Penlington, 7 Vin. Abr. 150, pi. 11, and difiering from 
 that in force in that country since the statute 3 & 4 Wm. IV., c. 27, § 12. 
 See Oulley v. Doe d. Taylerson, 11 Ad. & Ell. 1008 ; Doe d. Holt v. Hor- 
 rocks, 1 C. & K. 566. 
 
 The receipt of rents and profits of land is held sufficient seizin, even where 
 the rule of actual seizin is insisted upon, Powell v. Gossom, supra; but where 
 a devise was made to a married woman of the sole control of all the income 
 from an estate, without accountability, it was held that estate was not so. 
 " owned and possessed " as required by the Kevised Statutes of Kentucky, 
 23 
 
266 Jackson v. Johnson. — ^Wells v. Thompson. 
 
 Vol. 2, ch. 47, Art. 4, § 1, p. 22, as to give the husband an estate by curtesy, 
 Stewart v. Barclay, 2 Bush. 550. 
 
 Where curtesy is sought ia an equitable estate, an equitable seizin is suf- 
 ficient, and the receipt by the cestui que trust of the rents, issues, and 
 profits, or an actual possession of the land by her trustee, will uphold the 
 estate by curtesy, Oushing v. Blake, 30 K J. Eq. 689. 
 
 No Curtesy in a Kemainder after a Freehold. 
 
 The estate of the mfe, whether an actual or a potential seizin only be re- 
 quired to support curtesy, must be a present one, and there can be no cur- 
 tesy in a remainder, or reversion after a freehold estate, where the particular 
 estate is not determined during the coverture. Planter's Bank of Tennessee 
 V. Davis, 31 Ala. 626 ; Stoddard v. Gibbs, 1 Sumn. 270 ; Tayloe v. Gould, 
 10 Barb. 400 ; Mackey v. Proctor, 12 B. Mon. 433 ; Eldredge v. Forrestal, 
 7 Mass. 253 ; Blood v. Blood, 23 Pick. 80 ; Shoemaker v. Walker, 2 S. & K. 
 554 ; Weir v. Humphries, 4 Ired. Eq. 279 ; Fisk v. Eastman, 5 N. H. 240 ; 
 Dunham v. Osbom, 1 Paige 634 ; Watkins v. Thornton, 11 Ohio St. 367 ; 
 Prater v. Hoover, 1 Cold. 544 ; Orford v. Benton, 36 N. H. 395 ; Young v. 
 Melntyre, 6 W. K C. 252 ; Beed v. Beed, 3 Head. 491. In Shores v. Car- 
 ley, 8 Allen 425, Bigelow, C. J., said : " The rule of law is well settled 
 that a man cannot be tenant of the curtesy of a remainder, or a reversion. 
 The reason of the rule is that in such case one of the essential elements 
 of a title by curtesy is wanting. The seizin of the wife must be a seizin in 
 deed, that is an actual seizin, or possession of the estate, to give the husband 
 a right by cxirtesy. There can be no such seizin of a reversion, or remainder 
 expectant on the termination of a freehold estate in another. Of such an 
 estate the wife can have only a seizin in law, or constructive seizin.'' 
 
 This same reason will apply in those States where a potential seizin is suf- 
 ficient to support curtesy, for the potential seizin being by construction 
 made equal to actual seizin, and in no other way supporting the curtesy, it 
 follows that it is subject to the same conditions, and that as there can be 
 no present actual possession of a thing for whose enjoyment the time has 
 not yet come, so neither can there be a constructive present possession 
 thereof. An outstanding dower is such an estate as if not determined 
 during the coverture will defeat the estate by curtesy, Beed v. Beed, supra ; 
 In the matter of Oreger, 1 Barb., Ch. 601 ; Miner v. Ege, 23 Pa. St. 305 ; 
 Williams v. Baker, 71 Id. 476. Where an estate-tail is converted by stat- 
 ute to an estate for life in the first taker, with remainder in fee to the heirs, 
 the husband of the first taker cannot have curtesy, Burris y. Page, 12 Mo. 
 358. 
 
Jackson v. Johnson.— Wells v. Thompson. 267 
 
 In Maehey v. Proctor, 12 B. Mon. 433,. J. H. Y. conveyed to her son W. 
 certain land by a deed which contained the following reservation, " the said 
 J. H. Y. is to reside on the land during her life or so long as she may think 
 fit." W. died before his mother, leaving a child M., who married and died 
 before her grandmother, J. H. Y. It was held that the reservation in the 
 deed was of a life estate, that consequently W., and after him M., had only 
 a remainder, and hence that M.'s husband was not entitled to curtesy in the 
 land conveyed by the deed. 
 
 Seizin to Sustain Curtesy must be Beneficial. 
 
 The wife's estate to sustain curtesy must be both beneficial and present, 
 in the sense that no freehold prior to her estate of inheritance exists, there- 
 fore where a woman was seized in fee, in trust for the grantor for life, with 
 a reversion in the beneficial interest to herself, it was held, that the hus- 
 band was not entitled to curtesy. Chew v. Commissioners of SouthwarJc, 5 
 Eawle, 159. Kennedy, J., in the course of a learned examination of the 
 question said, " Now the quotation from Lord Coke relative to the seizin 
 that is necessary to give a right to dower, and the nature of the estate out 
 of which such right may or may not be claimed, is equally applicable as 
 well as necessary to establish a right by the curtesy. And Lord Haed- 
 wiCKE, accordingly, in the case of Hearle v. Greenbank, 1 Ves. Sr. 307, laid 
 it down in these words : ' Though said to be determined in Casbom v. Scarf e, 
 1 Atk. 603, that husband may be tenant by the curtesy of a trust in equity ; 
 yet the wife must in the first place have the inheritance ; and secondly, 
 there must be a seizin of the freehold during the coverture.' The same 
 principle is repeated and confirmed by Chancellor Kent in his Commen- 
 taries, Vol. 4, p. 31 (of the first edition), who there states, ' the wife must 
 have had a seizin of the freehold and inheritance semel et simul, either at 
 law or in equity during the coverture.' But the seizin at law here men- 
 tioned, must be understood as a seizin attended by or under a right of 
 ownership ; because in addition to what has been' already advanced going 
 to show that this must be so, the husband, if entitled to the estate at all by 
 the curtesy, has the right to it immediately upon the death of his wife, or 
 it would not be, as has been already shown, a continuation of the estate or 
 right of the wife ; but if the wife was seized only in trust for the use of an- 
 other, and not for her own benefit, at the time of her death, the husband 
 cannot take, for Chief Baron Gilbeet, in his treatise on Uses and Trusts, 
 171, lays it down that ' tenant by the curtesy, or tenant in dower, cannot 
 be seized to uses, because they come to these estates by the disposition of 
 law, for the advancement and encouragement of matrimony ; and those 
 
268 Jackson v. Johnson. — ^Wells v. Thompson. 
 
 estates are given them for their own maintenance, and are consequently 
 exclusive of all other uses for the advantage of other people.' And besides 
 to permit the husband to take the estate for his own use on the death of 
 his wife, where she was only seized of the freehold as a trustee, would be 
 in direct violation of the trust and of the rights of the cestui que trust, which 
 are paramount to that of either the wife or the husband, and, therefore, is 
 not to be tolerated for a moment." See also MeKee v. Jones, 6 Pa. St. 429. 
 
 Outstanding Term of Years will not prevent Vesting of Curtesy. 
 
 The outstanding estate, to prevent the right to curtesy from attaching, 
 must be a freehold, and an outstanding terni of years will not have that 
 effect. Weir v. Humphries, 4 Ired. Eq. 279 ; even if the term be of great 
 length. See Lessee of Lowry v. Steele et al., 4 Ohio 170, where the term 
 was over seventy years, for the termor is not vested with the land, but with 
 the term only, and therefore, where the land is upon lease for years, there 
 may be curtesy without entry or even without the receipt of rents, the 
 possession of the lessee being that of the husband and wife. Harg. Co. 
 Lit., note 29 a; 2 Blacks. Com. 144; 1 Cr. Dig. 64, 161. 
 
 In Carter v. Williams, 8 Ired. Eq. 177, the testator devised to his wife a 
 plantation durante viduitate, or until his son, R., arrived at the age of twenty- 
 one years ; he then made a devise of the plantation to his children, one- 
 third thereof on the death of the widow and the other two-thirds upon her 
 marriage. M., a daughter of the testator, married, had issue and died, 
 leaving a husband, before R. reached twenty-one. On R.'s attaining that 
 age, M.'s husband claimed curtesy. It was held, that he was not entitled to 
 it in the one-third, the widow's estate therein being a freehold, but her 
 estate in the remaining two-thirds was for years only, i. e., until R. reached 
 twenty-one, and hence that the husband of M. was entitled to curtesy 
 therein. 
 
 In Robertson v. Stevens, 1 Ired. Eq. 247, an estate was givento A., with 
 the proviso that the possession should be in B. until a certain claim should 
 be paid. A. afterwards married. It was held that the interest of B. was 
 no more than that of a termor or a chattel interest and would not interfere 
 with the curtesy of A.'s husband. 
 
 Kight to Curtesy in a Legal Estate cannot be Barred by the Will 
 of the Grantor or Devisor. 
 
 The right of the husband to curtesy is so inherent in the wife's estate of 
 inheritance that it cannot, at least in a legal estate, be barred by the will 
 
Jackson v. Johnson. — Wells v. Thompson. 269 
 
 of the grantor or devisor of the estate, Thornton's Executors v. Krepps, 37 
 Pa. St. 391 ; Mullany v. Mullany, 3 Green, Ch. 16 ; as said by Loweie, 
 C. J., in the first-named case : " The incidents of an estate do not depend 
 upon the intention of it ; but are engrafted on it by law, and generally, at 
 least, without any regard to the intention of the grantor and even in dis- 
 regard of it. Our inquiry, therefore, is not after the intention of the testa- 
 tor, relative to the claim of curtesy ; but for the character of the estate in- 
 tended to be granted by him and whether curtesy is an incident by law to 
 such an estate." 
 
 In the Lessee of Buchannan v. Sheffer, 2 Yeates 374, there was a devise to 
 a. daughter and her heirs and assigns forever, but if she should die without 
 issue the wiU. directed the executor to sell the lands and divide the pro- 
 ceeds ; it was held that the daughter's husband was entitled to curtesy, for 
 " the wife was seized of an inheritance during her life, which her issue by 
 possibility might inherit and which they would have inherited if they had 
 not been disappointed by death." 
 
 And where a sole and separate estate, not in trust, was given to a wife by 
 a deed which expressly barred the husband's curtesy, he was nevertheless 
 held entitled thereto, and that although the estate was purchased with the 
 wife's money, the Court saying : " It was originally money that was be- 
 queathed to her, and when she converted it into land, she could impose no 
 terms upon her title to the land different from those attached to the money. 
 That was merely for her separate use and all other limitation of her title, 
 contained in the deed, are without authority," Johnson v. Fritz, 44 Pa. St. 449. 
 
 In Illinois, the law differs from that generally in effect, and it is there 
 held that where a deed or devise is made to a wife for her separate use 
 with a power of disposal, and the wife exercises such power, the husband 
 cannot have curtesy. Pool v. BlaiUe, 53 lU. 495 ; Monroe v. Van Meter, 100 
 Id. 347. 
 
 A husband may be tenant by the curtesy of his wife's separate estate, 
 notwithstanding the fact that he is cut off from any participation in the 
 rents and profits during the coverture, Carter v. Dale et al., 3 Lea 710. 
 
 A deed to a married woman, habendum " to her, her heirs and assigns, 
 to her and their sole use, benefit, and behoof," will not exclude the hus- 
 band's curtesy, De Hart v. Dean, 2 Mc.A. 60. 
 
 Curtesy in an Equitable Estate may be Barred by tbe Instru- 
 ment Creating it. 
 
 In giving an equitable estate the deed or devise may be so drawn as to 
 exclude the husband from curtesy, Baher v. HeiskeU, 1 Cold. 641 ; Cochran 
 23* 
 
270 Jackson v. Johnson. — Wells v. Thompson. 
 
 V. O'Hern, 4 W. & S. 95 ; Eigler v. Cloud, 14 Pa. St. 361. In Stokes v. 
 McKibbin, 13 Pa. St. 267, the question of exclusion was examined by Chief- 
 Justice Gibson, who said : " Whether Daly was tenant by the curtesy de- 
 pends on the precedents. The first of them is Bennet v. Davis, 2 P. Wms. 
 316, in which it was held that a husband is excluded from curtesy of his 
 wife's equitable estate wherever there is a manifest intention to exclude 
 him. The lands were devised to the wife for her separate use, with direction 
 that the husband should not be tenant by the curtesy ; and though he would 
 have been so at law, yet as trustees had not been interposed, he was declared 
 to be a trustee for her heirs and decreed to convey to them. There was no 
 express declaration in Roberts v. Dixwell, 1 Atk. 606, that the husband should 
 not be tenant by the curtesy ; but the testator directed that the trustees 
 should convey to the use of his daughter for life in such wise that she alone 
 or her appointees should receive the rents and profits, that her husband 
 should not intermeddle, but that, after her decease, the trusts should be for 
 the heirs of her body, and Lord Hardwicke decided that as the trust was 
 executory, the daughter took an estate for life only, and that he was con- 
 sequently not tenant by the curtesy. He went further in Heark v. Green- 
 bank, 3 Atk. 716, though it was conceded that the daughter had an estate 
 of inheritance, he said the testator had made her a feme sole by giving her 
 the profits to her separate use, and that her husband, therefore, could have 
 no seizin during the coverture, ' he could come at neither the possession nor 
 the profits.' In remarking on the discrepancy between that case and the 
 next preceding one the Vice Chancellor, Sir John Leach, said in Mor- 
 gan V. Morgan, 2 Madd. 408, that the husband may be tenant by the cur- 
 tesy of his wife's equitable inheritance, notwithstanding a naked direction 
 to pay the rents and profits to her separate use. Yet he admitted the 
 question was not of power, but of intention ' at law ; ' said he, ' the husband 
 cannot be excluded from the enjoyment of property given to or settled 
 upon his wife ; but in equity he may ; and this not only partially by a 
 direction to pay the rents or the profits to the separate use of the wife dur- 
 ing coverture, but wholly, by a direction that upon the death of the wife 
 the inheritance should descend to the heir of the wife and that the husband 
 shall not be entitled to be tenant by the curtesy. Such a provision was 
 
 made in Bennet v. Davis, and was acted upon by the Court.' One 
 
 would think that a declaration, that the husband should not touch the in- 
 come, and that the property should go instantly to another at the wife's 
 death, would be equally operative. It seems absurd to suppose that the 
 settler would give him the equitable seizin stripped of the fruits of it. In 
 every case perhaps the object of the exclusion is to protect not only the 
 wife, but her children from his prodigality ; and it would, therefore, be but 
 
Jackson v. Johnson. — "Wells v.. Thompson. 271 
 
 imperfectly attained were he allowed to resume his marital rights at her 
 death. In the deed of trust before us, it is said not only that he shall not 
 have the profits, but that the property shall not be in the power or subject 
 to the debt, contract, or engagement of her present or any future husband. 
 But if he were to be tenant by the curtesy at her death, he might, notwith- 
 standing, squander the anticipated profits in her lifetime. That the ex- 
 clusion of him was intended to be entire is obvious from the direction that 
 the property should go, immediately after his wife's death, to her heirs or 
 appointee, which meant something more than that it should go encumbered 
 with curtesy.'' 
 
 What Provisions in a Trust will Exclude Curtesy. 
 
 It being recognized law that a trust may be so drawn as to exclude the 
 husband's curtesy, and that the question before the Court in each case is 
 that of intent and not of power, it is of some importance to see what pro- 
 visions in a trust will be held to show an intent to bar curtesy. 
 
 And first, a mere declaration that the trust is for the sole and separate 
 use of the wife will not bar the curtesy, Mullany v. 3Iullany, 3 Gr. (N. J.), 
 Ch. 16 ; Gushing v. Blahe, 30 N. J. Eq. 686 ; Tremmel v. Kleiboldt, 6 Mo. 
 App. 549 ; Stewart v. Stewart, 7 John. Ch. 229 ; and it is held that the fact, 
 appearing on the face of the instrument creating the trust, that the trust 
 has been made by a husband, or intending husband, for the benefit of his 
 wife, or intended wife, will not have that efieet ; thus, in Gushing v. Blake, 
 29 N. J. Eq. 399, a man, contemplating marriage, conveyed to a trustee 
 on a declaration that the land was held in trust for the separate use of the 
 intended wife, and that he would convey the same as requested by her 
 during her life, or according to the terms of her will, or, on failure of any 
 appointment, to the wife, to her heirs at law in fee-simple. The Court 
 held that the equitable estate in fee-simple vested in the wife, and there 
 being no words of exclusion, the husband would take an estate by the 
 curtesy. The chancellor further held that the fact that the trust pro- 
 ceeded from the husband himself was not a circumstance which would 
 lead the Court to a decision which would exclude the husband, and on Rig- 
 ler V. Gloud, 14 Pa. St. 361, being cited as sustaining the position, which 
 would exclude the husband, the chancellor strongly disapproved of that 
 case, and said : " Indeed, it would seem that where a gift is made under 
 such circumstances by the husband to the wife for her benefit, the curtesy 
 should be favored rather than the contrary. There is nothing unreason- 
 able in a provision of law that, under such circumstances, the husband 
 should, at the death of his wife, if she shall not have disposed of the property. 
 
272 Jackson v. Johnson. — Wells v. Thompson. 
 
 have the same right that he would have had, had the gift proceeded from 
 some one else, or had the property been purchased with her own money." 
 The chancellor's decision was aiSrmed in 30 N. J. Eq. 689. To the same 
 effect is Frazer v. Hightower, 12 Heisk. 94. 
 
 In spite of this authority, it may well be thought that as the moving 
 cause of a settlement for the benefit of a wife is, as said by Gibson, C. J., 
 supra, generally to protect the wife and issue from the extravagance or 
 necessities of the husband, the presumption would be especially strong that 
 such was the motive where the husband himself puts his estate in trust for 
 his wife in fee, and that therefore this would be an additional argument 
 that the intent was to exclude the estate by the curtesy. And this is the 
 law in Pennsylvania. Thus in Rigler v. Cloud, supra, the husband made a 
 conveyance " to the use of Maria Eigler [the wife of the grantor], and her 
 heirs forever, so that the same shall not be subject in anywise to the fliture 
 control, debts, or liabilities of her present or any future husband," and it 
 was held that the estate by curtesy was barred ; but in Dubs v. Dvbs, 31 
 Pa. St. 149, a testator made a devise in trust " for my daughter Adelaide, 
 and her heirs ... to hold the said lands ... as to the yearly income or pro- 
 duce in trust for the sole and separate use of my said daughter Adelaide, 
 without and free from the control of any husband to whom she may be mar- 
 ried, and without any power of her or her husband aliening or disposing 
 the estate," etc. At the time of making the will, and of the testator's 
 death, Adelaide was unmarried, and did not contemplate any particular 
 marriage. It was held that the estate by curtesy was not barred. As it 
 may be suggested that the claim of curtesy might have been sustained by 
 striking down the trust as not made in contemplation of any particular 
 marriage, thus leaving Adelaide vested with a legal estate in fee-simple, in 
 which, of course, curtesy would be had, it is worth while to note that the 
 Court expressly said that it did not discuss the question of the validity, or 
 effect of the trust, and besides, said, " It is in form an equitable fee, and in 
 substance it is' a fee legal or equitable ; and there is nothing to prevent its 
 descent as a fee." 
 
 In construing marriage settlements, or deeds of the nature thereof, the 
 Courts have given instances of considerable liberality in sustaining a pre- 
 sumed intention to bar an estate by the curtesy. In Ward v. Thompson, 6 
 G. & J. 349, there was an ante-nuptial settlement of the wife's property on 
 trustees to the use of the wife, without impeachment of waste, subject to the 
 exclusive and entire control of the wife, her heirs, etc., without interference 
 on the part of the husband, and with power to the wife to dispose of her 
 property as if a feme sole. This settlement was held to bar the estate by 
 curtesy. See also Townsend v. Matthews, 10 Md. 251. The same effect has 
 
Jackson v. Johnson. — Wells v. Thompson. 273 
 
 been given to what was practically a marriage settlement, without the inter- 
 vention of trustees, thus, where an intended husband executed a deed as 
 follows :" I ... do hereby sell, assign, deliver, alien, and confirm to the 
 said M. [the intended wife] all the right, title, estate, interest, and benefit 
 which I may, by operation of law, acquire, derive, or receive, either at law 
 or equity, in and to the following real and personal estate belonging to the 
 said M., by reason of our marriage," it was held that he would take no 
 curtesy in the land mentioned in the deed. Hooks v. Lee, 7 Ired. Eq. 83 ; 
 and where an agreement has been arrived at between an intended husband 
 and wife, that the wife should dispose of her property as she pleased by 
 will or otherwise, and the parties to the agreement have acted thereupon, 
 the Courts have gone some distance in upholding the agreement, though 
 not evidenced by a formal settlement, thus in Lant's Appeal, 9 W. N. C* 
 209, S. C. 10 Reporter, 645, a parol ante-nuptial agreement was made 
 whereby the wife was to have power to dispose of her property as she saw 
 fit, she thereupon made a will, and afterwards married. The Court held 
 that though the will was revoked by the marriage, according to the pro- 
 visions of the Act of the Assembly of Pennsylvania of 8 April, 1833, § 16, 
 P. L. 251, yet it would be enforced in equity as an ante-nuptial settlement. 
 
 In Mason v. Deese, 30 Ga. 308, marriage articles contained a declaration 
 as follows, "said property, nor any part thereof, or the proceeds or hire 
 thereof, is never to be subject to the control, contracts, or liabilities " of the 
 husband. The early part of the articles set out that their object was the 
 securing of the property to the sole and separate use of the wife and family, 
 and contained a covenant by the husband, that he would exercise no 
 power or authority other than as authorized by the settlement. The judge 
 who delivered the decision of the Court was of opinion that there was a 
 manifest intention to bar the curtesy, but, there being a difierence of opinion 
 amongst the judges, the case was allowed to go to a jury, to consider the 
 intention of the parties under the circumstances of the settlement. This 
 method of avoiding a decision by a divided Court seems to violate the dis- 
 tinction generally maintained as to the provinces of the Court and the jury. 
 
 Every presumption is in favor of curtesy as a natural legal incident of 
 an estate, either legal or equitable, and, therefore, even in a settlement by 
 the husband, the intent to exclude curtesy must clearly appear, Jones et iix 
 V. Brown, 1 Md., Ch. 191. 
 
 In other cases to exclude the husband from his curtesy in a trust estate 
 of the wife, the words of exclusion must be plain ; it is not enough that the 
 estate is for the mere sole and separate use of the wife, the intent to exclude 
 the husband from his marital rights in the property must be plainly ex- 
 pressed, Tremmel\.Kleiboldt, 6 Mo. App. 549. 
 
 S 
 
274 Jackson v. Johnson. — "Wells v. Thompson, 
 
 In Payne v. Payne, 11 B. Mon. 138, a father gave land in trust for his 
 daughter S., to be at her disposition, the trust to cease on the death of S.'s 
 husband, and the legal title then to vest in S. S. died before her husband, 
 he was held entitled to curtesy. 
 
 In Eochon v. Lecatt, 2 Stew. (Ala.) 429, there was an ante-nuptial agree- 
 ment by which the intended husband renounced " all claim, right, title, or 
 interest, to any part or parts of the estate of T., in right of the said A. (his 
 intended wife), she to retain the said property, of whatever nature so ever, 
 for her own use and benefit." It was held by the Court, two judges dis- 
 senting, that the right to curtesy had not been surrendered. 
 
 In Tillinghast v. Coggeshall, 7 R. I. 383, a husband and wife made a 
 settlement of one-half of a landed estate in trust for the sole and separate 
 use of the wife for life, to collect rents and profits, with power to the trus- 
 tees on the request of the wife to sell and reinvest proceeds as directed by 
 her, and on her death to convey according to the provisions of her will, and 
 in default of a will to convey to her heirs in fee-simple. In case of the 
 death of the husband before the wife, the trust was to cease. The wife 
 made a will in which she gave to her husband, inter alia, the income of the 
 property for life, and devised the fee over. Afterwards the trustees pur- 
 chased the other half of the land, and took a conveyance thereof on the 
 same trusts as those upon which the first half was held. After this the 
 wife died, having attempted to make a will, but having failed through bod- 
 ily infirmity. It was held that the husband took an estate by curtesy, in 
 the half undisposed of by will. Ames, C. J., remarking, " Whatever doubts 
 were once entertained upon this subject {Hearle v. Greenhanh, 3 Atk. 718), 
 it seems to be well settled now that the reservation by the wife of the rents 
 and profits of her estate to her sole and separate use during her life, does 
 not amount to a^ expression of an intent on her part to exclude her hus- 
 band from curtesy therein after her death. The exclusion of the husband 
 might, if the intent to exclude him had been expressed, have been total, as 
 in Davis v. Bennet, 2 P. Wms. 316 ; but, as in this case the exclusion was 
 partial only, during her life, the Court can have no authority to restrain 
 him from enjoyment of his general right as tenant by the curtesy in the 
 equitable estate in fee of his wife." Morgan v. Morgan, 5 Mad. 248 ; Pitt v. 
 Jackson, 2 Bro. C. C. 51 ; 4 Kent Com. 320, 321. 
 
 In Paker v. Heiahell, 1 Coldw. 641, where there was a settlement in 
 chancery, by which a trust was created for a wife, her heirs and assigns, 
 giving to the wife the control and possession of the property with a power 
 of appointment, the husband was held entitled to curtesy, his wife having 
 died without exercising the power. 
 
 In Cochran v. O'Eern, 4 W. & S. 95, there was a trust of land for the 
 
Jackson v. Johnson. — Wells v. Thompson. 276 
 
 sole, separate, and peculiar use, benefit, and disposal of the wife, and " that 
 the same or any part thereof shall not in any wise be subject or liable to the 
 disposal, intermeddling, control, engagements, debts or encumbrances of 
 him, the said John O'Hern [the husband] . . ; and it is the true intent and 
 meaning of these presents, that nothing herein contained shall be taken and 
 construed, either at law or in equity, to vest any title, claim, or challenge 
 whatsoever in the said John O'Hern." It was held by the Court that the 
 intent to exclude the estate by the curtesy was sufficiently clear and that 
 the husband took nothing. 
 
 The mere expression that the purpose of a trust is the promotion of the 
 interest of married woman and her children, separate and apart from that 
 of her husband, following a trust for the sole and separate use of the wife, 
 will not be sufficient to destroy the estate by the curtesy, Ege v. Medlar, 
 82 Pa. St. 86 ; and the giving of a power of sale to the wife, will not by it- 
 self work a conversion so as to destroy the curtesy, although the execution 
 of the power may have that effect. Id. 
 
 A devise to a married woman in tail with a provision that on her death 
 without issue the executors shall sell the land for the benefit of the testator's 
 nephews, will not prevent the estate by curtesy from vesting in the devisee's 
 husband, and if she have issue, who all die before her death, the husband 
 will hold after her death, Hay v. Mayer, 8 Watts. 203. 
 
 Bights of Alien with Keference to Curtesy. 
 
 At common law an alien cannot take an estate by the curtesy, Foss y. 
 Ori»p, 20 Pick. 121 ; Reese v. Waters, 4 W. & S. 145 ; Mussey v. Pierire, 
 24 Me. 559 ; Paul v. Ward, 4 Dev. 247 ; Den ex d. Copeland v. Sauh, 1 
 Jones (N. C.) Law 70 ; naturalization, however, enables the alien to take, 
 Fish V. EJein, 2 Mer. 432 ; Fourdrin v. Gowdey, 3 M. & K. 401. It has 
 been held that where an alien husband had declared his intention to become 
 a citizen, during the life of his wife, but had not been naturalized until after 
 her death, he could not take by the curtesy, Foss v. Orisp, supra; in that case 
 it was argued that the words of the Massachusetts statute, viz., " when a 
 
 man and his wife shall be seized the husband shall have and hold 
 
 such estate during his natural life as tenant by the curtesy " were sufficiently 
 broad to cover an alien husband, but the Court answered, " The statutes 
 of the commonwealth, touching the descent of lands, were intended to apply 
 to citizens not aliens unless they were particularly named." 
 
 In Reese v. Waters, supra, it was argued that the act of March 24th, 181 8, 
 of the Legislature of Pennsylvania, which gave to an alien the right to pur- 
 chase land subject to a limitation as to quantity, entitled an alien to become 
 
276 Jackson v. Johnson. — ^Wells v. Thompson. 
 
 tenant by the curtesy ; but the Court held that the word " purchase " was 
 used in the act in its ordinary and popular meaning, and that the alien 
 husband could not take by the curtesy ; in the course of its opinion the 
 Court said : " A continuance of this peculiar disability is not recommended 
 by any principle of policy ; and the legislature would doubtless put an end 
 to the difficulties of the subject, were it brought before them, by cutting 
 up the root from which they sprung." 
 
 Beese v. Waters was decided in the autumn of 1842, and in 1844 the 
 Legislature passed an act, April 16th, 1844, confirming the title of aliens to 
 lands previously purchased, not exceeding 2000 acres, and continuing : " And 
 in all cases where such aliens shall have inherited the same by descent or 
 otherwise, the title of such aliens is hereby confirmed, and it shall be law- 
 ful for such alien or aliens to hold as fully to all intent and purposes as 
 any citizen of the United States might or could do." In Whichcote v. Lyle's ' 
 Executors, 28 Pa. St. 73, curtesy was claimed by Sir Thomas Whichcote, 
 an alien ; and the case was argued by very eminent counsel. The counsel 
 for the complainant contended that the act had been passed to meet the 
 suggestion of the Court in Reese v. Waters, that it therefore was intended to 
 enable an alien to be tenant by the curtesy, and that it was prospective in 
 operation, as shown not only by its general intent, but by the use of the 
 second future tense. The counsel for the defendants argued that the act 
 was merely confirmatory of titles, and that even if the act were prospective, 
 yet as an estate by the curtesy was an estate, neither by descent nor pur- 
 chase, but by the operation of law, the alien was still excluded from curtesy 
 in Pennsylvania. The case, however, went off on another point, and the 
 Court gave no opinion upon this particular question. So that the law upon 
 the subject may be said to be still unsettled in Pennsylvania. See 2 Ameri- 
 can Law Mag., p. 46. 
 
 In the other States, in those in which all restrictions upon acquiring and 
 holding realty are removed as to an alien, he, of coui-se, takes by the cur- 
 tesy, where it exists, the same as would a citizen. The States which have 
 so removed restrictions, are Alabama, Code 1876, Tit. 7, ch. 2, § 2860; 
 Florida, M'Clellan's Digest (1881), ch. 92, § 7 ; Illinois, Rev. St. (Hurd, 
 1880), ch. 6, § 1, p. 136 ; Iowa, M'Clain's Annotated Statutes, Pt. 2, Tit. 
 XIII., ch. 1, § 1908; Kansas, Constitution, Bill of Rights, Sec. 17; Maine, 
 Rev. St. 1871, Tit. VII., ch. 73, § 2, p. 559 ; Maryland, Rev. Code 1878, 
 Art. 45, § 8 ; Massachusetts, Gen. St. 90, § 38, p. 473 ; Minnesota, Sts. 1878, 
 ch. 76, § 41, p. 820 ; Mississippi, Rev. Code, ch. 44, § 1230 ; Missouri, Rev. 
 St. ch. 3, § 325, p. 49; Nebraska, Comp. Sts. (Brown, 1881), ch. 73, § 54, p. 
 394 ; New Jersey, Rev. of 1877, p. 6, §§ 1, 2, 3 ; North Carolina, Battle's 
 Rev., ch. 3, § 1 ; Rhode Island, Gen. Sts. 1872, Tit. XXII., ch. 161, § 6, p. 
 
Jackson v. Johnson. — Wells v. Thompson. 277 
 
 348-9; Texas, Paschal's Digest., 2d edition. Art. 46, p. 106; Virginia Code, 
 ch. 4, Tit. 2, § 18 ; Wisconsin, Rev. St. 1878, eh. 99, § 2200 ; West Virginia, 
 Rev. St. 1879, ch. 3, § 1 ; California, Civil Code 1876, Div. 2, Pt. 1, Tit. 2, 
 ch. 1, § 5671. In those States where restrictions are removed from aliens 
 resident therein, Arkansas Const., Art. I., § 20 ; Rev. St., ch. III., § 224 ; 
 New Hampshire, Gen. Law, ch. 135, § 16 ; Oregon Const., Art. I., § 81 ; 
 Vermont Const., § 39 ; or from aliens resident in the United States ; Con- 
 necticut, Gen. Laws, Tit. 2, ch. 1, § 4 ; or from aliens, who have declared 
 their intention of becoming citizens, Delaware Laws, Tit. 12, ch. 81, § 5 ; 
 Kentucky, Gen. Sts. 1873, ch. 14, Art. III., § 1 ; Tennessee, Sts. Tenn. 
 1871, Pt. 2, Tit. 1, ch. 2, §§ 1999, 2000; the estate by curtesy would be 
 taken by aliens as any other estate would. In the remaining States, where 
 certain restrictions are placed about the holding of real property by aliens, 
 or where the time of holding is limited, or the method which they are per- 
 mitted to acquire property distinctly pointed out by statutory enactment, 
 there may be some doubt whether an alien will be permitted to take by the 
 curtesy. [For conditions of holding and acquiring lands by aliens in the 
 vaj*ious States, see post, page 515 et seq.] 
 
 Incidents. Emblements. Liability for Waste. 
 
 Tenant by the curtesy is entitled, as a life tenant, to emblements and is 
 liable for waste, Armstrong v. Wilson, 60 111. 226 ; Bates v. Shraeder, 13 
 Johns. 260 ; and where he has assigned his curtesy, and waste is committed 
 by the assignee, the action by the heir must still be brought against the 
 assignor. Bates v. Sehraeder, supra. 
 
 Improvements by Tenant by Curtesy. 
 
 If the tenant by curtesy make improvements upon the land, he is not 
 entitled to an allowance therefor, nor is his grantee, Buiiey v. Edmands, 15 
 Mass. 291. 
 
 Power to Convey or Lease Estate by Curtesy. 
 
 The estate by curtesy may be leased or assigned by the tenant, Shortall 
 V. Hinckley, 31 111. 219, and if the husband convey his curtesy, and after- 
 wards join with his wife in a conveyance of the entire estate, the latter con- 
 veyance will not defeat the former, but will carry the wife's remainder only. 
 Id. A conveyance of the curtesy by the husband in fraud of his creditors 
 is void, Stehman v. Huber, 21 Pa. St. 260, and a voluntary settlement thereof 
 24 
 
278 Jackson v. Johnson. — ^Wells v. Thompson. 
 
 on his wife is void as to creditors, Van Duzer v. Van Duzer, 6 Paige 366 ; 
 Wiekes v. Clarhe, 8 Id. 161. 
 
 Estate by Curtesy bound by a Judgment against the Husband. 
 
 The estate by curtesy is bound by a judgment against the husband, and 
 may be taken in execution, Canhy v. Porter, 12 Ohio 79 ; Roberts v. Whiting, 
 16 Mass. 186 ; Mechanics' Bank v. Williams, 17 Pick. 438 ; Gardner v. Hooper, 
 3 Gray 398 ; Lancaster Bank v. Stauffer, 10 Pa. St. 398 ; Day v. Cochran, 
 24 Miss. 261 ; Shortall v. Hinckley, supra; Lang v. Hitchcock, 99 111. 550. 
 In Mattocks v. Stearns, 9 Vt. 326, the question arose under a statute making 
 liable to execution " any estate held by the debtor in his own right, or for 
 his own life, or the life of another, paying no rent therefor." Eedfield, 
 J., in delivering the opinion of the Court, said : " We see no difficulty in 
 considering this an estate which the debtor held in his own right. The 
 title was indeed derived through the right of his wife ; but, by virtue of 
 the marriage, he, as husband, acquired certain rights, among which the use 
 of the freehold estate of inheritance of the wife during the coverture is one. 
 After issue born alive, this estate is enlarged, and extends not only during 
 the coverture, but till the death of the husband, except in one event, which 
 will be named hereafter. This, in England, after the death of the wife, 
 was denominated an estate by the curtesy, but is strictly an estate, which 
 the husband holds in his own right, whether before or after the death of 
 the wife. He may bring trespass or ejectment in his own name for any 
 injury to the usufruct during the continuance of the estate. 
 
 " The next inquiry is whether this is an estate for the life of the debtor. 
 It is undoubtedly true that this estate might be determined by a divorce 
 a vinculo, before the death of either husband or wife. But this is a con- 
 tingency of so remote expectation, as not to enter into the ordinary calcu- 
 lations of the duration of the relation of married life. It is one of those 
 extreme cases which, like earthquakes and tempests in the natural world, 
 or like public executions, in the history of individual existence, do, indeed, 
 sometimes occur, but which no one feels bound to expect or provide against." 
 The Court, accordingly, held the estate by curtesy to be liable to execution 
 under the statute. 
 
 The levy may be made on the land directly, Roberts v. Whiting, 16 Mass. 
 186. 
 
 At the present day, since the enactment of the various married women's 
 acts, the tendency in those States where the tenancy by curtesy initiate' is 
 still recognized, is to restrain any levy upon or sale of the curtesy initiate 
 by virtue of an execution, and to leave the husband's creditors to wait until 
 
Jackson v. Johnsoit. — Wells v. Thompson. 279 
 
 the estate becomes consummate by the wife's death. See Act of Penna. 
 Legislature of April 22, 1850, § 20, P. L. 553 ; Clarke's Appeal, 79 Pa. St. 
 376 ; Woodward v. Wilson, 68 Id. 208 ; Ckrry v. Bott, 53 Id. 400 ; Gen. Sts. 
 Massachusetts, eh. 108, § 1 ; Silsby v. Bullock, 10 Allen 94 ; Staples v. Broim, 
 13 Id. 64. The effect of an act exempting the wife's lands from levy and 
 sale for debts of the husband during the wife's life, is held to be to prevent 
 the husband during the coverture from conveying his estate by the curtesy, 
 Williams v. Baker, 71 Pa. St. 476. Of course in those States where curtesy 
 initiate is held to be abolished, there can be no levy on the husband's estate 
 in his wife's lifetime, for his estate does not arise until his wife's death, and 
 until that event occurs, he has the mere uncertain expectancy of an estate 
 in such lands as remain upon the wife's death, and this is too uncertain 
 a property to be subject to levy and sale. See also Jones v. Carter, 73 
 N. C. 148. 
 
 Estate by Curtesy an Insurable Interest. 
 
 The estate by curtesy is an insurable interest, Harris v. York Mutual Ins. 
 Co., 50 Pa. St. 341. 
 
 Suspension of Descent of Liand by Existence of Estate by Cur- 
 tesy. Effect on Statute of Lilniitations. 
 
 The existence of an estate by the curtesy suspends the descent of the 
 land, and the inheritance cannot be transmitted during said existence. 
 Bates V. Shraeder, 13 Johns. 260 ; Jackson v. Johnson, 5 Cow. 74 ; and 
 during its continuance the statute of limitations will not run against the 
 heirs of the wife, Miller v. Bledsoe, 61 Mo. 96 ; Witham v. Perkins, 2 Greenl. 
 400 ; Heath v. White, 5 Conn. 228 ; Jackson v. Schoonmaker, 4 Johns. 390 ; 
 Ecfe V. Medlar, 82 Pa. St. 86 ; Meraman's Heirs v. Caldwell's Heirs, 8 B. 
 Mon. 32, or against the wife herself, and if the husband permit an adverse 
 possession to bar his estate, yet the wife's reversion is not barred, and her 
 right of action only accrues upon the death of her husband. See Foster 
 V. Marshall, 22 N. H. 491. Where a plaintiif had been under disabilities, 
 and an estate by the curtesy arose before the disabilities were removed, the 
 existence of the curtesy at the time of the removal was held to stop the 
 running of the statute; for the Court regarded the case not as one in which 
 it was sought to tack one disability to another, after the statute had begun 
 to run, but as one in which an intervening estate prevented the vesting of 
 the plaintiif's right, Jackson v. Johnson, supra, per Savage, C. J., and 
 Sutherland, J., Woodwoeth, J., dissenting. 
 
280 Jackson v. Johnson. — Wells v. Thompson. 
 
 In some States, Curtesy subjected to Wife's Debts. 
 
 In some States, the estate by the curtesy is held to pass subject to the 
 -wife's debts, Philips v. DiUo, 2 Duv. 549 ; Taylor v. Smith, 54 Miss. 50. 
 
 « 
 Wife's Right as Creditor as against Curtesy. 
 
 The estate will pass to the husband, subject to the right of his wife as a 
 creditor, Piatt's Est, 2 W. N. C. 468. S. C. sub nomine Shippen and Rob- 
 bins's Appeal, 80 Pa. St. 391. 
 
 Wife not a Necessary Party in Suits with Reference to Curtesy. 
 
 In actions or suits with reference to the curtesy, the wife need not be 
 joined, Shortall v. Hinckley, 31 111. 219. 
 
 Tenant by Curtesy cannot Recover for Damage to the Reversion. 
 
 Tenant by the curtesy cannot sue for damage done to the reversion, 
 Mathews v. Bennett, 20 N. H. 21. 
 
 Substitution of Interest of Proceeds where Land is sold by Ju- 
 dicial Proceedings. 
 
 Where lands subject to curtesy are sold by judicial proceedings, so as to 
 pass the title free from the curtesy, the interest of the proceeds will belong 
 to the husband for life, Ellsworth v. Cook, 8' Paige 643 ; Dunscornb v. Duns- 
 comb, 1 Johns. Ch. 508 ; Jacques v. Ennis, 25 N. J. Eq. 402. 
 
 Defeat of Curtesy after Vesting. By Recovery or Fine. 
 
 The husband's curtesy will be defeated by a recovery of the wife's land 
 in an action against the husband and wife, or by a valid fine levied, or 
 recovery suffered by the husband and wife. See Tudor, Leading Cases in 
 Real Property, p. 66. 
 
 Forfeiture by Conveyance of Fstate greater than Curtesy. 
 
 A conveyance by the husband of an estate greater than his curtesy will 
 forfeit his estate. Wells v. Thompson, 13 Ala. 793, but the conveyance must 
 be a tortious one, as a feoffment, and the husband does not forfeit his estate 
 by leasing in fee, or by conveying by a deed operating under the statute 
 of uses, Grovi v. Townsend, 2 Hill 554 ; McKee's Lessee v. I^out, 3 Dall. 
 486 ; Flayg v. Bean, 25 N. H. 49 ; Meraman's Heirs v. Caldwell's Heirs, 8 
 
Jackson v. Johnson. — Wells v. Thompson. 281 
 
 B. Mon. 32 ; and it has been held that even a feoffment by the husband 
 during the life of the wife will not work a forfeiture, but will give the 
 feoffee an estate for the life of the husband, Pemberton v. Hicks, 1 Binn. 1. 
 On the other hand, it has been held in Maine that a deed in fee by a tenant 
 by the curtesy works a forfeiture, French v. Rollins, 21 Me. 372. 
 
 ££fect of Adultery on Estate by Curtesy. 
 
 The estate by the curtesy is not lost by adultery on the part of the hus- 
 band, Wells V. Thompson, 13 Ala. 793, differing in this particular from 
 that of dower, which is lost by elopement, and living with an adulterer. 
 The reason of the difference, as stated by Lord Talbot in Sidney v. Sidney, 
 3 P. Wms. 276, is that the Statute of Westminster 2, 34 (13 Edw. 1, o. 
 34), expressly ordains the forfeiture of dower under such circumstances, 
 but no statute makes such an enactment as to curtesy. In Indiana, quite 
 early in the history of that State, this inequality was done away with, and 
 a statute passed depriving the husband of curtesy, if he left his wife and 
 lived with an adulteress. Rev. St. of Indiana, 1838, p. 240 ; and in West 
 Virginia the curtesy is lost, if the husband desert his wife, unless the de- 
 sertion be justified by the same cause as would support a decree of divorce, 
 a vinculo matrivionii, or a mensa et thoro. The estate is restored by a rec- 
 onciliation. Code W. Va. (1868), ch. 65, § 15, p. 445 ; Eev. St. (1879), 
 Vol. I., ch. 70, § 16, p. 502. In Pennsylvania, a husband who, for a year 
 or more, previous to the death of his wife, has wilfully neglected or refused 
 to provide for her, or who has maliciously and wilfully deserted her, forfeits 
 his right to curtesy. Act, May 4, 1855, § 5, P. L. 431. 
 
 In Maryland the estate by curtesy is forfeited for bigamy. Eev. Code 
 Md., Art 72, § 102, p. 807. 
 
 Effect of Divorce upon Curtesy. 
 
 While curtesy is not lost by adultery, it is, however, barred by a divorce 
 a vinculo matrimonii. In Wheeler v. Hotchkiss, 10 Conn. 225, the question 
 was argued at length and the above position sustained in a well-reasoned 
 opinion by Daggett, C. J., as follows : " In this case, Wheeler, the hus- 
 band had issue bom alive before and after she [the wife] became seized of 
 the land, and hence they say that he was tenant by the curtesy initiate. It 
 has its origin, they insist, not simply in the marriage, but in the birth of issue. 
 He may then charge the estate, make a feoffment, hold against the heir of 
 the wife after her death, against the remainderman or reversioner, and even 
 against the king in case of attainder. And again his estate is not termi- 
 
282 Jackson v. Johnson. — "Wells v. Thompson. 
 
 nated by abandoning his wife and living with another woman. For these 
 several positions they cite Co. Lit. 30 ; 2 Blacks. Com. 127 ; 1 Rop. H. & 
 W. 15, 45, 48 ; Swift's Dig. 84 ; Sidney v. Sidney, 3 P. Wms. 376. 
 
 " Be it so, that by these authorities those positions are sustained, still all 
 the authorities concur that until the death of the wife he is only tenant 
 by the curtesy initiate and not consummate. The death of the wife is one 
 of the four essentials requisite to constitute a tenant by the curtesy. Now 
 the wife, Mary Wheeler, is still living, and the foundation of the husband's 
 estate is removed by the dissolution of the marriage. The coverture is dis- 
 solved by the very act of the husband. By the authority of adjudged cases, 
 as well as for the soundest reasons, his estate could continue only during 
 the coverture, Starr v. Pease, 8 Conn. 545. I am satisfied that the right 
 of the wife, which was suspended during the marriage, was restored by the 
 divorce, and, of course, the title to the land is now vested in her." See also 
 Foster v. Marshall, 22 N. H. 491. 
 
 The destruction of the husband's estate by a divorce a vinculo will not be 
 allowed to affect the interests of third parties, acquired on the faith of the 
 husband estate by the curtesy, where the marriage is not destroyed ab 
 initio. In Gillespie v. Worford, 2 Cold. 632, it was held that a divorce for 
 a cause arising after marriage and not affecting its validity, would not 
 divest the husband's curtesy in the hands of one who had purchased the 
 same from the husband prior to the decree of divorce. 
 
 In Nebraska, by statute, Comp. Stat. 1881, oh. 25, § 24, if the divorce . 
 a vinculo is for the adultery of the wife, the husband retains his curtesy. 
 
 A divorce a mensa et thoro will not destroy the estate by curtesy, Rochon 
 V. Leeatt, 2 Steed. (Ala.) 429. 
 
 Curtesy Barred by Divestiture of Wife's Estate on Breach of 
 Condition, but not where a Limited Fee has Expired. 
 
 Where the wife's estate is upon condition in deed, and a breach occurs, 
 for which the grantor or his heirs enter, the estate by curtesy is destroyed, 
 for the donor resumes his prior estate, and the derivative estate by the cur- 
 tesy falls with that out of which it has been derived. A distinction is 
 taken between a case in which the estate of the wife is terminated by entry, 
 or proceedings instituted upon a breach of a condition in deed, and one in 
 which a limited fee is determined in accordance with the term of its crea- 
 tion. In the latter case, the curtesy is allowed to exist notwithstanding the 
 expiration of the fee to which it is attached. This distinction has been 
 rested on the circumstance that in the former case the entry was not the 
 entry after the natural expiration of a previous estate, but for a condition 
 
Jackson v. Johnson. — ^Wells v. Thompson. 283 
 
 broken, which destroyed the estate ; but in the latter a new estate arose by- 
 virtue of the limitation, and, of course, was postponed to all the prior rights 
 of the previous estate, one of which was the estate by curtesy. See Butler's 
 Note 170 to Co. Lit. 241 a; Lord Mansfield, in Buchworth v. Thirhell, 3 
 B. & P. 652, note, seemed to recognize the distinction, when, after the case 
 had been twice argued, he said : " It is contended that this is a conditional 
 limitation. It is not, but a contingent limitation. All the cases go upon 
 the distinction of their being conditions and not limitations ; " but his Lord- 
 ship and the other judges .nevertheless decided that curtesy would be had 
 in an estate given to the wife and her heirs, but in case she died before the 
 age of twenty-one and without issue, then over, when the wife, having had 
 issue, who died before her, died under the age of twenty-one. The decision 
 in Buckworih v. Thirhell is, undoubtedly, in conflict with the authorities 
 cited in Mr. Butler's note, some of which were cited in that case, and in 
 making it the Court seems to have been influenced by a supposed analogy 
 which the estate given to the wife bore to a fee-tail or fee-conditional. 
 The question is involved in considerable difficulty, but it is thought that 
 the distinction above noted, i. e., that between a condition and a limitation 
 is the true one, and that a conditional limitation will follow the rule of the 
 condition. See Preston, Abst. of Title 384 ; 4 Kent. Com. 33, and in Boothhy 
 V. Vernon, 9 Mod. 147. 
 
 Barring- by Joinder of Husband in Deed or Will. 
 
 The husband may bar his curtesy by joining with his wife in a deed for 
 her land, Haines v. Ellis, 24 Pa. St. 253 ; or in a will of her realty, his 
 joinder acting as a species of release on his part, MeBride's Est., 81 Id. 303. 
 But the husband's joinder in the deed must be in the manner prescribed 
 by law, and in a case wherein it was sought to bar the curtesy, and the 
 husband's joinder in the conveyance was not evidenced by a deed, it was 
 held that the curtesy was not barred, and that no estoppel would arise 
 against the husband by reason of the fact that the wife, with his consent, 
 took in part payment for the land a promissory note made by her husband 
 to a third person, Houck v. Bitter, 76 Pa. St. 280. 
 
 Where a conveyance is made by virtue of a power of attorney, made by 
 husband and wife to transfer all their right, title, and interest in certain 
 land of the wife, the estate by curtesy will be defeated, no matter how 
 defective the power may be as to the wife, or how ineffectual to pass her 
 estate, Jackson v. Hodges, 2 Tenn., Ch. 276. 
 
 Where a husband, tenant by curtesy initiate, joined with his wife in a 
 conveyance of her land and agreed that property purchased with the pro- 
 
284 Jackson v. Johnson. — Wells v. Thompson. 
 
 ceeds thereof should be conveyed to his wife, in trust for her and her chil- 
 dren by a former husband, it was held that the husband took no curtesy 
 in the newly acquired land, and that if, in violation of his agreement, he 
 took title to himself, he would be compelled to account &r the proceeds of 
 the estate even during the lifetime of the wife. Carpenter v. Dame, 72 111. 16. 
 But where a post-nuptial contract secures to a wife the control of all her 
 realty and releases curtesy, and the wife sells her property and dies, the 
 release wUl not be held to be a bar to the husband's right to his share of 
 the wife's personalty, even though the personalty be the proceeds of the 
 sale of the land, Rice v. Bice, 2 W. N. C. 672. 
 
 Curtesy not Barred by an Ante-nuptial Deed in Fraud of Hus- 
 band. 
 
 Where a woman, on the day of her marriage, and before its solemnization, 
 conveyed .her property without consideration, it was held by the Court a 
 fraud upon the husband, and the fact that the grantee afterwards be- 
 queathed a legacy to the wife, which she, with the assent of her husband, 
 received, did not estop him from claiming his curtesy in the land after his 
 wife's death, Robinson v. Buck, 71 Pa. St. 386. 
 
 Not Barred by any Act or the Attainder of the Wife after Birth 
 of Issue. 
 
 The husband's estate, after it has become initiate, is not barred by the 
 attainder of the wife or any other thing working a forfeiture of the wife's 
 estate, Lancast&r Bank v. Stauffer, 10 Pa. St. 398 ; Wells v. Thompson, 13 
 Ala. 793 ; Foster v. Marshall ; or by any act of the wife after birth of issue, 
 Stewart v. Ross, 50 Miss. 776 ; the attainder of the wife before birth of issue 
 will, however, defeat the estate by curtesy, Gillespie v. Worford, Co. Lit. 
 40 a, 351 a; 4 Hawk. PL Cr. 783^ Via. Abr., Tit. Curtesy, A; and a 
 pardon will not entitle the husband to claim curtesy except as to after 
 acquired land, 1 Bright, Hush, and Wife, 160; Gate v. Wiseman, Dyer 140 
 b ; Co. Lit. 392. 
 
 lioss of Curtesy by Felony or Treason of Husband. 
 
 The tenant by the curtesy might, formerly, forfeit his estate by a felony, 
 Foster v. Marshall, 22 N. H. 491. 
 
 Where the tenant by the curtesy initiate commits treason, and is attainted, 
 he loses his estate, but it is not forfeited to the commonwealth, but passes 
 to the wife and her heirs discharged of the curtesy, Pemberton v. Hicks, 1 
 Binn. 1. 
 
Jackson v. Johnson. — Wells v. Thompson. 285 
 
 Curtesy not Barred by a Will of the Wife. 
 
 As the estate by curtesy antedates any -will of the wife, which takes 
 effect from her death, the wife's devise will not affect her husband's cur- 
 tesy, and this has been held even where the husband's estate is limited to 
 the land of which the wife dies seized, Hall v. Hall, 32 Ohio 184. On the 
 same principle the wife's conveyance, after issue born, will not affect the 
 estate, but the law is otherwise where the estate is limited as above stated, 
 Forbes v. Sweesy, 8 Neb. 620. 
 
 Or by a Decree enjoining Husband from Intermeddling in the 
 Wife's Property. 
 
 The husband's curtesy in an estate of which the absolute control is vested 
 in the wife is not barred by a decree, made during the wife's life, enjoining 
 the husband from intermeddling with the property, Rochon v. Leoatt, 2 
 Stew. Ala. 429. 
 
 Curtesy not Transferable by a Disclaimer. 
 
 As the estate by curtesy partakes of the character of a descent rather than 
 a purchase, and becomes consummate immediately upon the death of the 
 wife, it cannot be transferred by a disclaimer, whose office is rather to pre- 
 vent an estate from vesting than to convey one already vested, Watson v. 
 WaUon, 13 Conn. 83. 
 
 Barrable by Statute of Limitations. 
 
 The estate may be barred by the Statute of Limitations, Neal v. Robert- 
 son, 2 Dana 86 ; Lessee of Thompson's Heirs v. Green, 40 Ohio St. 216 ; 
 ShortaU v. Hinckley, 31 111. 219. 
 
 Or by Statutory Judicial Proceedings, the Tenant being made 
 a Pai"ty thereto. 
 
 It may be barred by statutory judicial proceedings, whereby the land is 
 ordered to be sold free from the curtesy, and the interest of the proceeds 
 given to the husband, but unless the tenant by the curtesy be a party to 
 the proceedings and the adjudication is made with reference to him and his 
 estate, the curtesy will not be barred, Jacques v. Ennis, 25 N. J. Eq. 402. 
 
 Ifot liost by Abandonment of Possession to Cotenant in Common. 
 
 The tenant by the curtesy does not lose his estate by abandoning posses- 
 sion of the land to a cotenant in common, Witham v. Perkins, 2 Me. 400. 
 
286 Jackson v. Johnson. — Wells v. Thompson. 
 
 Statutory Provisions. 
 
 The estate by curtesy has in this country been very much altered by 
 statutes in the various States. The mainspring of the alteration has been 
 the tendency to increase the power of married women over their real prop- 
 erty. In some States the alteration has been effected directly by statutes 
 having express reference to the curtesy ; in others, indirectly by the operar 
 tion of the various married women's acts. Some States have even gone 
 so far as to abolish the estate by the curtesy altogether, as Iowa, M'Clain's 
 Annotated Stats., § 2440, p. 653 ; Illinois, Eev. St. 1880, ch. 41 ; Mmne- 
 sota, Act 1875, ch. 40, § 5 ; Stats. 1878, ch. XLVIII., ch. XLVi:, § 3, and 
 in these States the husband is given in lieu of curtesy an estate in fee- 
 simple of one-third of his wife's land possessed by her, and not sold on 
 judicial sale, or in which he has not relinquished his right ; California, 
 Civil Code (1876), § 5173, p. 595, Act April 17th, 1850 ; Mississippi, Eev. ^ 
 Code 1880, ch. 42, § 1170, p. 339; Kansas, Comp. Laws 1879, ch. 33, § 28, 
 p. 380 ; and by implication in Georgia, where the wife leaves children, Code 
 1873, ch. III., Art. 1, § 2484 ; in Florida, where it is provided that the 
 husband shall take in his wife's lands the share. Laws Flor., Div. II., 
 Tit. v., ch. 1, § 7 (Thomp. Dig.), and in Colorado by an enactment that 
 the wife may not leave away from husband more than one-half her estate, 
 without his consent in writing, Gren. Laws, ch. LXIV., § 4, p. 614. 
 
 The general tendency, however, is not to utterly abolish the estate by 
 ' curtesy, and in some of the married women's acts it is expressly preserved, 
 while others are held to preserve it by construction. In some States the 
 effect of the legislation is held to be to destroy curtesy initiate without de- 
 priving the husband of his right to the land after the wife's death. The 
 following is a brief review of the law as affected by statute : 
 
 In Alabama, the Code, 1876, Tit. 5, ch. 1, § 2714, provides that if a 
 woman having a separate estate die intestate, her husband shall be entitled 
 to the use of the real estate for life, unless he has been divested of all con- 
 trol of the wife's estate by a decree in chancery, as provided by § 2717 of 
 the Code, which enacts that the husband may be deprived of the care and 
 management of his wife's separate 'estate on proof of imbecility, intemper- 
 ance, or anything else, " which renders him unfit for the management " of 
 said estate. 
 
 The imbecility or intemperance must be such as renders the hus- 
 band unfit for the management, and is not enough, per se, to justify a decree, 
 nor is his adultery or cruelty, Bryan v. Bryan, 35 Ala. 290 ; but as said by 
 Walker, C. J., " the management which the law contemplates does not 
 have relation alone to the control of the trust ; but it has relation also to 
 the purposes to be subserved by the trust," and, therefore, where the hus- 
 
Jackson v. Johnson. — Wells v. Thompson. 287 
 
 band, without adequate cause, abandons his wife, a decree depriving him of 
 the control of her property will be made, Boaz v. Boaz, 36 Ala. 334. By 
 Section 2713 of the Code, a married woman has unlimited power to dis- 
 pose of her separate estate. So that curtesy would seem to be reduced, in 
 Alabama, to a life share after the wife's death, in what she has not disposed 
 of by deed or will. 
 
 In Indiana, the husband's separate deed passes no interest in the wife's 
 land. Revision of 1876, Vol. I., ch. 144, § 6, p. 550, and a married woman 
 may, without the assent of her husband, devise land ; Acts May 31, 1852 ; 
 Act 1859, pt. 5, Eev. 1876, Vol. II., ch. 3, § 1, p. 570, which would seem 
 to confine the curtesy to an interest after the wife's death in the undisposed 
 of realty. 
 
 _In Kentucky curtesy is limited to lands owned and possessed by the 
 wife at the time of her death. Rev. St., Art. 4, ch. 47, p. 22. 
 
 In Massachusetts, Gen. Stats., ch. 108, §§ 3, 10, p. 538 ; Oregon, Gen. Laws, 
 ch. 64, § 3, p. 788; Pennsylvania, Act April 11, 1848, § 10, 2 Pur. Dig. 
 1007, pi. 17. Rhode Island, Pub. St. (1882), Tit. XX., ch. 166, § 14, p. 424, 
 Tit. XXIV., ch. 182, § 3, p. 471. Tennessee, Statutes, Vol. I., p. 1119, § 2486, 
 in the married woman's acts the estate by the curtesy is expressly saved, 
 and the eflTect of the saving is that where a married woman is given power 
 to convey her land, the conveyance will be subject to the husband's estate 
 by the curtesy, Beal v. Warren, 2 Gray 447 ; Comer v. Chamberlain, 6 
 Allen 166. 
 
 In Michigan, by statute, curtesy is given in land of which the wife dies 
 seized, and no birth of issue is necessary to the vesting of the estate ; but if 
 the wife leave, at her death, issue by a former husband to whom her land 
 might descend, such issue will take the land discharged of curtesy, 2 Comp. 
 Law (1867), ch. 90, § 30, p. 856, Comp. Laws 1871, ch. 151, § 30, Hathon 
 V. Lyon, 2 Mich. 93, Sill v. Chambers, 30 Mich. 422. While the law as 
 thus established by statute has never been expressly repealed, or the estate 
 by the curtesy abolished, yet it has been held abrogated by the various 
 statutes relating to married women's estates. See Tong v. Marvin, 15 Mich. 
 60, in the course of the opinion in which case Cooley, J., reviews the legis- 
 lation on the subject ; it may be noted, however, that the learned judge 
 relies to a certain extent on some New York cases, which have since been 
 overruled, and see Brown v. Clarh, 44 Mich. 309. 
 
 In Nebraska, the phraseology of the act with reference to curtesy is the 
 same as the one held to be abrogated in Michigan, viz. : " When any man 
 and his wife shall be seized in her right of any estate of inheritance in 
 lands the husband shall, on the death of his wife, hold the lands for his life 
 as tenant thereof by curtesy ; Provided, That if the wife, at her death, shall 
 
288 Jackson v. Johnson. — Wells v. Thompson. 
 
 have issue by a former husband, to whom the estate might descend, such 
 issue shall take the same discharged from the right of the surviving hus- 
 band, and hold the same as tenant by curtesy." Comp. Stat. (1881), ch. 23, 
 § 29, p. 215. 
 
 The Act of March 1, 1871, relating to married women, Comp. Stat. (1881), 
 ch. 53, § 2, conferred on a married woman the right to convey her real 
 property, and enter into contracts, with regard to the same, with like effect 
 as could a married man with reference to his land. 
 
 In view of this statute, it is held that in Nebraska the estate of the 
 curtesy still exists in lands undisposed of the wife in her lifetime, but will 
 be taken subject to her contracts ; and hence, where the wife, having made 
 a lease of her land, dies, the surviving husband will have no right to the 
 possession of the land until the term of the lease has expired, Forbes v. 
 Sweesy, 8 Neb. 520. 
 
 In Ohio issue is not necessary, but if there be issue by a former husband, 
 the surviving husband shall not have curtesy, unless the estate in which it 
 is claimed came to the wife by a gift from him, or from his ancestor, Eev. 
 St. 1880, § 4176, p. 1046. For a view of the estate in Ohio prior to the 
 enactment of the law now in force, see Denny v. MeCahe, 35 Ohio 576. 
 
 In New Jersey it has been decided that the married woman's act (Nixon's 
 Dig. (1852) 503, Stewart's Kevision (1877), p. 639, § 14) abolished the estate 
 by curtesy initiate, but did not affect the right of the husband in his wife's 
 land, upon her death, Porch v. Fries, 18 N. J. Eq. 204 ; Johnson v. Owm- 
 mins, 16 Id. 97 ; Boss v. Adams, 4 Dutch. 160 ; Naylor v. Field, 5 Id. 292. 
 
 In Minnesota the act abolishing curtesy saved all vested rights, Stats. 
 1878, ch. XLVIII. 
 
 In Mississippi the Revised Code of 1871, ch. 23, §§ 1786-7, provided 
 that the husband" should have curtesy in land of which the wife died seized, 
 and that if there was surviving issue by a former husband, the curtesy 
 should be in but one-third of the estate. The statute of Feb. 19, 1867, 
 gave the wife a right to devise her land without the assent of the hus- 
 band, while the married woman's act, Code, 1857, Art. 23, p. 335, saved 
 the curtesy. The effect of this legislation was thus stated in Stewart v. 
 Boss, 50 Miss. 776, by Simeall, J., " as we interpret the statutes, the 
 right of the husband does not become initiate of a life estate on the birth 
 of issue, in the sense of being fixed and vested, but it is contingent to take 
 effect on the death of the wife in all the lands of which she died seized, or 
 possessed, that are not disposed of during the coverture, and not devised 
 by will." By the Code of 1880, ch. 42, § 1170, p. 339, the estate by the 
 curtesy was abolished. 
 
 Under the New York married woman's act (Act April 7, 1848), it was, 
 
Jackson v. Johnson. — Wbi.ls v. Thompson. 289 
 
 for a long while, a matter of doubt as to whether the estate by curtesy 
 were abolished, highly respectable authorities differing on the question. 
 In Thurher v. Townsend, 22 N. Y. 517, it was held that the statute had 
 destroyed the curtesy initiate, and in Billings v. Baker, 28 Barb. 343, a 
 department of the Supreme Court held that, as under the act the husband 
 had no seizin of his wife's land during her life, there was wanting one of 
 the four essentials of curtesy, and there being no estate initiate in the wife's 
 lifetime, there could be none to become consummate at her death. See 
 also Colvin v. Ourrier, 22 Barb. 371 ; In the matter of Winne, 1 Lans. 508. 
 On the other hand, while it was admitted that the estate by the curtesy 
 initiate was abolished, it was held that the estate by the curtesy after the 
 wife's death still existed. Surd v. Cass, 9 ' Barb. 366. See also Clark v. 
 Clark, 24 Barb. 581 ; Losing v. GvMeh, 26 How. Pr. 250 ; Jaycox v. Col- 
 lins, Id. 497 ; Beamish v. JSoyt, 2 Robt. 307. In Burke v. Valentine, 52 
 Barb. 412, the Supreme Court in the first department, carefully consid- 
 ered the question, reviewed the authorities, Ingeaham, P. J., delivering 
 the opinion, and decided that the estate of the curtesy was not abolished 
 as to realty of the wife, not disposed of at the time of her death. This 
 decision was affirmed by the Court of Appeals (see 6 Alb. Law Journal 
 167), which has since announced the same doctrine in Hatfield v. Sneden, 
 54 N. Y. 280, and may be regarded as having settled the law. See also a 
 dictum in Ransom v. Nichols, 22 N. Y. 110 ; and see Leach v. Leach, 28 N. 
 Y. S. C. 381, Barnes v. Underwood, 47 N. Y. 351. 
 
 In Vermont, curtesy is as at common law, with the provision that in the 
 event of issue by a former husband, so much of the estate of the wife as 
 might have descended to said issue, shall be discharged from the curtesy. 
 Laws Vt., Tit. XVI., eh. 55, § 15, p. 414, and see Eevised Laws (1880), 
 Tit. 15, ch. 114, § 2229, p. 452. 
 
 In Wisconsin, the husband's curtesy is confined to lands of which the 
 wife dies seized and intestate, and a proviso to the same effect as that in 
 Vermont, where issue by a former husband survive the wife, exists, Rev. 
 Stats. (1878), ch. 98, § 2180, p. 628. 
 
 In "West Virginia the husband's right to curtesy is limited to lands of 
 which the wife dies seized. Rev. St. (1879), ch. 70, § 15. 
 
 In Maine the statute upon curtesy is as follows : " When a man and 
 wife are seized of lands in fee in her right, acquired before March 22, 
 1844, which are under improvement, and issue is born alive of her body 
 that may inherit the same, the husband shall hold such estate after his 
 wife's decease during his life as tenant by the curtesy. The husband of a 
 deceased wife, whose estate is solvent, shall have the use for life of one-third 
 of her real estate, to be recovered and assigned in the same manner and 
 25 T 
 
290 Jackson v. Johnson. — Wells v. Thompson. 
 
 with the rights of dower, and shall have the same right to waive any pro- 
 vision made for him in her will that a wife has in regard to her husband's 
 will. When a husband or wife dies intestate, leaving no issue, and the 
 estate is solvent, the survivor shall have the use for life of one-half of the 
 real estate of the deceased, t© be recovered and assigned in the manner and 
 with the rights of dower," Eev. St. (1871), Tit. IX., eh. 103, § 15, p. 758. 
 In Connecticut, Laws, Tit. 18, ch. 11, § 18 ; Delaware, Rev. Code, ch. 
 LXXXV., § 1, cl. 6; New Hampshire, Gen. Laws (1878),.ch. 202, § 14, p. 
 475 ; North Carolina, Battles' Revision, ch. 69, § 30, p. 692 -, and Rhode 
 Island, Pub. Stats. (1882), Tit. XX., ch. 166, § 14, p. 424 ; Tit. XXIV., ch. 
 182, i 3, p. 471, ch. 187, § 8, p. 490, the husband's right to curtesy is rec- 
 ognized as at common law, and the nature of the estate does not seem to 
 have been materially altered by subsequent legislation. 
 
Dower. 
 
 THOMPSON V. MOREOW. 
 
 Supreme Comi of Pennsylvania, September 6, 1819. 
 
 [Reported in 5 Sergeant & Kawle 289.] 
 
 A wife is not barred of her dower by a conveyance in wliich she joins with 
 her husband, if she is not privately examined by the magistrate who 
 takes her acknowledgment. The widow in the assignment of her dower 
 against a purchaser from her husband, shall take no advantage of im- 
 provements of any kind made by the purchaser, but, throwing those 
 out of the estimate, she shall be endowed according to the value, at the 
 time her dower shall be assigned to her. 
 
 This was a writ of error to the Court of Common Pleas of Allegheny 
 County, in an action of dower brought by Elizabeth Thompson widow of 
 Moses Thompson deceased, against William Morrow, in which two bills 
 of exceptions were taken by the plaintiff in the Court below. 
 
 This case had been previously twice argued, and Tilghman, C J. 
 being prevented by sickness from attending at this term, he sent his 
 opinion, which was read by Gibson, J. as the opinion of the Court. 
 
 TiLGHMAN, C. J. — The record in this case presents two bills of ex- 
 ception, taken on the trial of this cause, in the Court of Common Pleas 
 of Allegheny County. It is an action of dower, brought by Elizabeth 
 Thompson, widow of Moses Thompson deceased. 1. A deed from the) 
 said Moses Thompson and Elizabeth his wife, (the plaintiff,) conveying 
 in fee simple the laud in which dower is now demanded, to Robert 
 Henderson, under whom the defendant claims, having been given in 
 evidence by the defendant, the Court were of opinion, that by virtue 
 of this deed, the plaintiff was barred of her dower, although it did not 
 appear, that she was privately examined, by the justice of the peace 
 who took her acknowledgment. This point having been decided in 
 the case of Kirk v. Dean, 2 Binn. 341, and that decision recognized 
 
 291 
 
292 Thompson v. Morrow. 
 
 by this Court in several subsequent cases, it is unnecessary at present, 
 to say anything more, than that we consider the law as settled. There 
 was error, therefore, in the decision of the Court of Common Pleas. 
 
 2. After the conveyance by Moses Thompson to Robert Henderson, 
 the land in which dower is claimed, (being a lot of ground in the city 
 of Pittsburgh,) was increased in value by the erection of buildings. 
 And the value was, besides, greatly increased, by the growth of the 
 city and other causes, distinct from any buildings or improvements 
 made by the purchaser. The Court of Common Pleas were of opinion; 
 that in assigning dower to the plaintiff, no regard was to be had to the 
 gradual increase of value from causes unconnected with improvements 
 made by the purchaser, but that the plaintiff was to have one-third, 
 according to the value at the time of the alienation by Moses Thompson. 
 It is a point of great importance to widows, and to all those who pur- 
 chase from married men without legal conveyances from their wives. 
 We have, therefore, had it twice argued, in order that we might avail 
 ourselves of the industry and talents of the learned counsel on both 
 sides. Dower is a claim founded on law, and favored by courts both 
 of law and equity. It is a right flowing from marriage ; and marriage 
 is so highly regarded as to be a valuable consideration for the settle- 
 ment of property on the wife. By marriage, the husband acquires an 
 absolute right in his wife's personal estate, a right to the possession and 
 profits of her real estate during the coverture, and also a right to her 
 real estate during his life, in case he survives her, provided he has issue 
 by her, and the estate be of such a nature, that the issue may, by possi- 
 bility, inherit it. In return for all this, the law gives to the wife, in 
 case she survives her husband, one-third for her life, of all the real 
 estate whereof her husband was seized at any time during the coverture, 
 whether she have issue by him or not, provided the estate be of such a 
 nature, that any issue which might have been born, might, by possibility, 
 have inherited it. The right of dower is inchoate, on the marriage, 
 but not consummate till the death of the husband. No act of the hus- 
 band can lessen or defeat it. But, during the marriage, his right is 
 absolute; he may improve the estate, or suffer it to lie waste; erect 
 buildings or pull them down at his pleasure. All that the wife can 
 cla,im, where the husband dies seized, is one-third of the land in the 
 condition in which it is found at the time when her title is complete, 
 viz. at the death of her husband. But if after her title is thus complete, 
 
Thompson v. Moekow. 293 
 
 and before assignment of dower, the heir erects buildings, or makes 
 other improvements, the widow shall be endowed of one-third part of 
 the estate, according to its value at the time dower is assigried to her ; 
 because it was the folly of the heir to make improvements on land which 
 he knew to be subject to dower. Co. Litt. 32 a, sect. 36. The law is 
 different, however, when the husband aliens the land during coverture, 
 for there the wife shall derive no advantage from any improvement 
 made by the alienee. There is no injustice in this, for, if the husband 
 had never aliened, he might not have made these improvements. And 
 it would affect the prosperity of the county, by discouraging improve- 
 ments in building and agriculture, if the wife were to be endowed of 
 one-third of the value, including these improvements. This I take to 
 have been the main reason for excluding the wife from any part of the 
 value arising from improvements ; although we find in the old books, 
 another reason assigned, that is to say, that as the tenant in dower, who 
 vouches the heir on a warranty of his ancestor, must recover of the heir, 
 according to the value of the land, at the time of the alienation, it would 
 be unreasonable that the widow should recover of the tenant according 
 to any other value. So far as concerns improvements made by the 
 alienee, it is agreed that the tenant shall be protected from this hard- 
 ship ; but as to any value which may chance to arise, from the gradually 
 increasing prosperity of the county, and not from the labor or money 
 of the alienee, it would be hard indeed upon the widow, if she were 
 precluded from taking her share of it. She runs the risk of any de- 
 terioration of the estate, which may arise either from public misfortune, 
 or the negligence, or even the voluntary act of the alienee ; for although 
 he destroy the buildings erected by the husband, the widow, has no 
 remedy, nor can she recover any more than one-third of the land as 
 she finds it at the death of her husband. Perk., sect. 829. There are 
 not many authorities on this subject to be found in the English books, 
 and such as we have are bottomed on decisions said to be reported in 
 the year-books. Mr. -Hargrave in his note on Co. Litt. 32 a, sect. 36, 
 cites 1 H. 5, 11, 17, E. 3, 17 H. 3, Dower, 192, 31 Ed. 1, vouch. 288. 
 " If the feoffee improve by buildings, yet dower shall be, as it was in 
 the seizin of the husband, for the heir is not bound to warrant except 
 according to the value as it was at the time of the feoffment ; and so 
 the wife would recover more against the feoffee, than he would recover 
 in value, which is not reasonable." It is to be remarked, that the de- 
 25* 
 
294 Thompson v. Morrow. 
 
 cision in the cases here cited, was upon improvements by buildings, erected 
 by the feoffees ; the decision, therefore, was clearly right, although a 
 better reason might, perhaps, be given, than that which is said to be 
 assigned for it, in the year-books. In Jenk. Cent., pp. 34, 35, case 68, 
 in which the year-book 47 E. 3, 22, is cited, we have the law laid down 
 as follows : " On voucher, if special matter be shewed by the vouchee, 
 viz. that the land at the time of the feoffment was worth only £100, 
 and now at the time of the voucher, is worth £200, by the industry of 
 the feoffee, the tenant shall recover only the value as it was at the time 
 of sale, for, if the act of the feoffee has meliorated the land, this shall not 
 prejudice the feoffor in his warranty." Here is satisfactory reasoning 
 indeed. The warrantee shall not, by any acts of his ovm, increase the 
 responsibility of the warrantor, for that would, in effect, be to alter the 
 contract of warranty. But even granting that the tenant, who vouches 
 the heir, can recover from him only according to the value at the time 
 of the alienation, this being the true construction of the warranty, the 
 wife of the feoffor, who is no party to the warranty, ought not to be 
 injured by it. So far as her rights are concerned; she ought not to be 
 affected, but by those reasons of policy and justice, which apply to her 
 case ; reasons which extend only to improvements made by the feoffee. 
 As the year-books are principally relied on, by those who contend, that 
 the widow is to recover, according to the precise value at the time of the 
 alienation, I endeavored to trace the subject through those books, but 
 met with great difficulty, from the imperfection of the printed editions. 
 I believe I have seen all which have ever been printed, but it appears 
 by a report of a committee of the British House of Commons, ap- 
 pointed for the purpose of enquiring into the state of the public records, 
 in the year 1800, that although there are year-books, from the reign of 
 Edward I., (inclusive) to the first of Henry VIII., yet in the printed 
 editions, there are the following chasms : the whole reign of Edward I., 
 (except some short notes in the exchequer :) of the reign of Edward III., 
 ann. 11 to 16, ann. 19, 20, and 31 to 37 ; whole reign of Eichard II., of 
 Henry V., ann. 3, 4, and 6 ; of Henry VII., ann. 17, 18, 19. And 
 it appears from the same report, that in some instances, the manuscripts 
 contain different reports of the same cases. It is to be remarked in 
 general of such reports, as we have in these books, that they are often 
 so short as to be obscure and unsatisfactory. With respect to dower, 
 however, I have found no adjudged case in the year-books confining 
 
Thompson v. Morrow. 295 
 
 the widow to the value at the time of the alienation by her husband, 
 where the question did not arise on improvements made after the aliena- 
 tion. In our own State, it does not appear, that the pouit now in 
 question has been decided, although I have certainly considered the 
 general understanding to be, that the widow should have the advantage 
 of all increase of value, not arising from improvements made after 
 the alienation. And such I know to have been the opinion of my 
 deceased colleagues. Judges Yeates and Brackenridge. As to the 
 case of Winder v. Little,! Yeates 154, although the point on which 
 the Court decided is not expressly stated, yet enough appears to satisfy 
 me, that it was a question on improvements. By the Supreme Court of 
 New York, justly commanding the highest respect, the law has been 
 held differently. But they have a statute of their own, by which this 
 matter is regulated. It is true, that Court, in delivering its opinion, 
 did say, that the statute made no change in the common law : still, 
 however, the decision was upon the statute, and therefore, what was 
 said of the common law, ought not to be considered as more than a 
 dictum. The New York cases on this subject, will be found in 2 Johns. 
 484; 11 Johns. 510 ; 13 Johns. 179. In Massachusetts', the Supreme 
 Court have in several cases decided, that so far as concerns buildings, or 
 other improvements, the widow shall take her third according to the 
 value, exclusive of the improvements, 9 Mass. Kep. 218 ; 9 Mass. Rep. 
 8 ; 10 Mass. Eep. 80 ; 13 Mass. Rep. 227. But as to increase of value 
 not arising from improvements, the opinion of the late Chief-Justice 
 Parsons may be collected from what fell from him, in the case of 
 Gore V. Brazier, 3 Mass. Rep. 544. His words are these : " If the 
 husband during covertm-e, had aliened a real estate in a commercial 
 town, and at his death the rents had trebled, from causes unconnected 
 vjith any imprcmement of the estate, and the widow should then sue for 
 her dower, perhaps it might be difficult for the purchaser to maintain, 
 that one-ninth only, and not one-third should be assigned to her." I 
 am not aware that this opinion has ever been contradicted in Massachu- 
 setts, and therefore, I presume that the law is held there, in conformity 
 to it. Having considered all the authorities which bear upon this question, 
 I find myself at liberty to decide, according to what appears to me to be 
 the reason, and the justice of the case, which is, that the widow shall 
 take no advantage of improvements of any kind, made by the purchaser, 
 but throwing these out of the estimate, she shall be endowed, according 
 
296 Thompson v. Moerow. 
 
 to the value, at the time her dower shall be assigned to her. The judg- 
 ment is therefore reversed, and a venire faeias de novo awarded. 
 
 Judgment reversed, and a venire facias de novo awarded. 
 
 According to Sir Henry Maine, dower, as it exists with us, is the result 
 of the exertions of the church in the interest of wives surviving their hus- 
 bands; the church iirst insisted that the husband, at the time of the mar- 
 riage, should formally and expressly promise that he would make a pro- 
 vision for his wife, and afterwards succeeded in having the principle of 
 dower engrafted upon the customary or common law of western Europe. 
 Maine, Ancient Law (3d Am. Ed. 1875), Ch. VII., p. 218. 
 
 Dower ad ostium ecclesise. 
 
 Having such an origin, it is not remarkable that the earliest species of 
 dower, of which we have an authentic account, is the dower ad ostium 
 ecclesicB, which is mentioned by Glanville. See Reeves, History of the 
 Enghsh Lawj ed. Murphy, Phila., 1880, Vol. I., pp, 354-5. In it, the hus- 
 band endowed his wife openly and before the church, and either specified 
 the- dower or he did not. If no especial dower were named, the dower was 
 understood to be of one-third of the freehold, of which the husband was 
 seized in desmesne at the time of the marriage, and he was not permitted 
 to give a dower greater than such one-third, although he might give less ; 
 and of property which the husband afterwards acquired, the wife could 
 claim no dower, unless there had been a provisional mention of such acqui- 
 sitions at the time of the endowment, Glanv. lib. 6, c. 1. 
 
 In Littleton's time, however, the liberty of the husband, with reference 
 to this species of endowment, had become enlarged, so that he could endow 
 his wife " of his whole land, or of the half or other lesser part thereof," Lit., 
 Sec. 39 ; and this was the law in the time of Coke, Co. Lit. 34 a. 
 
 To give validity to this form of endowmait, it was necessary that it 
 should be made openly in the face of the church, by a man of full age, or, 
 if he were an infant, with the consent of his guardian, and after affiance and 
 troth plighted between the husband and wife. Id. It resembled the dower 
 at common law in many things, but differed in others, notably in the fol- 
 lowing respects, viz., if the wife wished to prevent her dower being barred 
 by a conveyance of her husband, she was obliged to make a solemn decla- 
 
Thompson v. Morrow. 297 
 
 ration of dissent from the conveyance (" contradicere," Glanville), -which 
 would enable her, the sale being afterwards made, to claim dower against 
 the purchaser ; the heir was obliged, if it could be done, to deliver to the 
 widow possession of the specific land assigned by the husband, and, if that 
 were impossible, to make the widow a recompense in value, exeamhiwn. 
 Reeves, Vol. I., pp. 356-7 ; and on the death of the husband, the widow 
 had a right of entry upon her dower lands without further assignment there- 
 of, Co. Lit., Sec. 39, 34 a. 
 
 DowM" ex assensu patris. ^ 
 
 Dower ex assensu patris, resembled, generally, dower ad ostium eccledce. 
 It was made by the husband, who was heir-apparent to his father, of parcel 
 of his father's lands and tenements, with the assent of the father. Lit., Sec. 
 40 ; and a like endowment might be made ex assensu matris, Co. Lit. 35 b. 
 
 Disclaimer of foregoing Species of Dower— Their Abolition. 
 
 Both of these species of dower, when dower by the common law had be- 
 come the law of the realm, might have been disclaimed by the widow, and 
 on such disclaimer she became entitled to dower at common law, Co. Lit., 
 Sec. 14, 36 a. They afterwards, and probably for that reason, fell into disuse, 
 and were abolished in England by statute of 3 and 4 William IV., c. 105, 
 § 13. They seem never to have obtained in the United States. They may, 
 however, be considered as ftirnishing the foundation upon which jointures, 
 which in many respects resemble these antique forms of dower, arose. 
 
 Dower de la plus belle. 
 
 Littleton also mentions, Co. Lit., Sec. 48, 38 a, another species of dower, 
 i. e., dower de la plus belle, which was abolished, in effect, by the Stat. 2 Car. 
 2, c. 27, by which tenures by knight's service were converted into soccage. 
 
 Dower at Common Law. 
 
 Dower, at the common law, as we have it, was a matter of growth. Start- 
 ing with the rationable dos of Glanville, i. e., a third part of the freehold 
 of which the husband was seized on the day of marriage, it is, in the reign 
 of Edward III., spoken of as a third of all that was the husband's in his 
 lifetime, held either in fee-simple or in fee-tail. Reeves, Vol. III., p. 523. In 
 Henry VL's time, Littleton gives the following definition: "Tenant in 
 
298 Thompson v. Moeeow. 
 
 dower, is where a man is seized of certain lands or tenements in fee-simple, 
 fee-tail general, or as heir in special-tail, and taketh a wife and dieth ; the 
 wife, after the decease of her husband, shall be endowed of the third part 
 of such lands and tenements as were her husband's at any time during the 
 coverture; to have and to hold to the same wife in severalty, by metes and 
 bounds, for the term of her life, whether she hath issue by her husband or 
 not ; and of what age soever the wife be, so as she be past the age of nine 
 years at the time of the death of her husband, otherwise she shall not be 
 endowed," Littleton, Sec. 36, 30 b. This definition is afterwards extended 
 to land held by the husband as donee in tail-special, when, by the limitation 
 of the eState, the heirs were to be begotten on the body of the wife, who 
 claimed dower. Sec. 53, 40 a; the test being, that issue wMch the wife 
 might, by possibility, have, should be capable of inheriting the estate by 
 the terms of its limitation. 
 
 Blaekstone's definition, Bl. Com., Lib. 2, p. 129, is defective, in that, if 
 taken literally, and without the explanation which he afterwards gives on 
 p. I31, it would cover a life estate. Mr. Tudor's definition, in his note to 
 Lewis Bowles's case, Tudor's Leading Cases on Real Property, p. 68, is at 
 once concise and clear. He thus defines dower : " The estate that a widow 
 (if not debarred of such estate) is entitled to have assigned to her for life 
 in one-third of the hereditaments, which her husband is seized of in fee- 
 simple or fee-tail, and which her issue, if any, might, by possibility, in- 
 herit." 
 
 Dower, as at common law, has been recognized in all the States of the 
 Union which derive their law from England. In some it is expressly recog- 
 nized by statute. See Massachusetts, Pub. Stats. (1882), Pt. 2, Tit. 1, Ch. 
 124, §3, p. 740; Virginia, Code, Tit. 31, Ch. CVL, §1, p. 853; North 
 Carolina, Battle's Rev., Ch. 117, §1, p. 839; Ohio, Rev. St., Pt. 3, Tit. IV., 
 Ch. 3, §4188, p. 1049; Rhode Island, Laws (1882), Tit. 29, Ch. 229, §1, 
 p. 637 ; West Virginia, Rev. Sts., Vol. 1, Ch. 70, § 1, p. 498 ; New Jersey, 
 Rev. of 1877, p. 320, PL 1 ; New York, Rev. Stat. (1882), Pt. 2, c. 1, Tit. , 
 3, §1, p. 2197; Nebraska, Comp. Stat., Pt. 1, c. 23, §1, p. 212; Oregon, 
 Stats., Ch. 17, Tit. 1, § 1 ; New Hampshire, Gen. Stat., Ch. 202, § 2, p. 474; 
 Michigan, Comp. Laws, Vol. 2, Tit. XXII., Ch. CLI., §4269, p. 1359; Wis- 
 consin, Rev. Stat., Pt. 2, Tit. 20, Ch. 98, § 2159, p. 626 ; Missouri, Rev. 
 Stat, Vol. 1, Ch. 29, § 2186, p. 363 ; Alabama, Code (1876), Pt. 2, Tit. 3, 
 Ch. 2, Art. 1, §2232; Maine, Rev. Stat. (1871), Tit. IX., Ch. 103, §1, p. 
 756 ; Arkansas, Rev. Stat., Ch. XLIX., § 2210, p. 455 ; Delaware, Rev. 
 Code (1874), Ch. LXXXVII., §1, p. 533; Florida, McClellan's Digest, 
 Ch. 95, §1. 
 
 Dower was also given, as at common law, by the federal ordinance of 
 
Thompson v. Morrow. 299 
 
 1787, under which the great north-western territory of the United States 
 was organized. See May v. Bumney, 1 Mich. 1 ; Belts v. Wise, 11 Ohio 219. 
 
 Variatioa of the Common Law Rule. 
 
 In some of the above States, the common law has been slightly varied 
 as to the character of the land, or the nature of the estates in which dower 
 may be had, as will appear more fiiUy in the appropriate places. 
 
 The Alabama Code contains a rather peculiar provision with reference 
 to dower ; by it, if the widow has a separate estate of a value greater than 
 her dower and distributive share of her husband's estate, estimating the 
 same at seven years' purchase, no dower or distributive share can be taken 
 by the widow ; if the separate estate is less, she will be given enough from 
 the husband's estate to render her estate equal to what she would receive 
 under the law, if she had no separate estate, Code, Pt. 2, Tit. 5, Ch. 1, Art. 
 III., § 2715. This applies only to separate estates created by law. Smith's 
 Exr. V. Smith, 30 Ala. 642, and does not embrace a separate estate, made 
 so by the acts of the parties or by a will. Id. ; Huckahee's Admr. v. An- 
 dreivs, 34 Id. 646. 
 
 In Vermont, Eev. Laws (1880), Tit. 16, Ch. 114, § 2215, p. 449 ; Ten- 
 nessee, Stats. (T. & S. 1871), Pt. 2, Tit. 3, Ch. 3, § 2398, p. 1073 ; Connec- 
 ticut, Gen. Stat. (Revis. of 1875), Tit. 18, Ch. 11, Art. IV., § 1, p. 376 ; 
 Widmv Beforest's Appeal, 1 Root 50 ; Georgia, Code (1873), Pt. 2, Tit. 2, 
 Ch. 1, Art. 2, § 1763, dower is limited to lands or realty of which the hus- 
 band was seized or possessed at the time of his death ; except that in Geor- 
 gia, it also includes lands of which the husband became possessed in the 
 right of his wife, though aliened during coverture. 
 
 Dower in sonie States Abolished. 
 
 In Mississippi, by the Revised Code (1880), Ch. 42, § 1170, p. 339, dower, 
 " as heretofore known," is abolished, and the word dower is, when used in 
 the code, declared to mean the statutory interest in the land of a husband 
 given, after his death, to his wife. Id. § 20. See Quin v. Coleman, 42 Miss. 
 386. 
 
 Dower is abolished in Indiana, Ch. 98, § 16; Kansas, Comp. Laws (1879), 
 Ch. 33, § 28 (2129), p. 380 ; California, Civil Code, Ch. III., § 5173 ; Min- 
 nesota, Gen. Stat., c. 48, p. 572 (the abolishing act in this State saves all 
 vested rights) ; Nevada, Comp. Laws, Vol. 1, Ch. XXII., § 157, p. 57. 
 
 In some of the States, the widow has been left entirely at the mercy of 
 
300 Thompson v. Morrow. 
 
 her husband, in others, her rights have been carefully guarded ; thus, in 
 Indiana she is given a right to a fee-simple in one-third of the lands of her 
 husband, -which right has been declared to be of the nature of dower, and 
 to resemble it in its incidents and characteristics ; see ffendrix v. MeBeih, 
 61 Ind. 473, Roberts v. Shroyer, 68 Id. 64 ; Mark v. Murphy, 76 Id. 634 ; 
 Johnson v. Plume, 77 Id. 166 ; and in California, where, by the Act of 
 April 17, 1850, dower was abolished, a community of property was estab- 
 lished between husband and wife, and the latter's rights therein were pro- 
 tected against a devise of the husband. Beard v. Knox, 5 Cal. 252. 
 
 Object and Prerequisites of Dower. 
 
 The object of the institution of dower, is said to be for the sustenance of 
 the widow, and the nurture and education of the younger children of the 
 deceased husband, Blackst. Com., Lib. II., p. 130; Co. Lit. 30 b; Higgins 
 V. Breen, 9 Mo. 497. To render the right perfect, there must occur three 
 things — marriage, seizin of the land in which dower is claimed during the 
 coverture, and the death of the husband, Co. Lit. 31 a ; Sisk v. Smith, 6 111. 
 503. It attaches, as a consequence, and by virtue of marriage, and for 
 reasons of public policy connected therewith. Matter of Central Park Ex- 
 tension, 16 Abb. Pr. 36, and is not an estate created or raised by contract, 
 Higgins v. Breen, 9 Mo. 497 ; Lawrence v. Miller, 1 Sandf. 516. As said 
 by Coulter, J., in Melizet's Appeal, 17 Pa. St. 449 : " It is not part of the 
 marriage contract. It results from wedlock, by the operation of existing 
 laws at the time of the husband's death." 
 
 The estate does not become absolute until the death of the husband, 
 when it becomes so immediately. Price v. Johnston, 4 Yeates 526. 
 
 Dower Incboate. 
 
 During the lifetime of the husband, dower is not an estate, but a mere 
 inchoate, though valuable, right, Sewall v. Lee, 9 Mass. 363 ; State v. Win- 
 erofi, 76 K C. 38; Sutliff v. Forgey, 1 Cow. 89, affirmed, 5 Id. 713; Wheeler 
 V. Kirtland, 27 N. J. Eq. 534 ; Reiff v. Horst, 55 Md. 42 ; protected, in- 
 deed, against the acts of the husband, McClurg v. Schwartz, 6 W. N. C. 
 361, but, as it is not a constitutional right, Melizet's Appeal, supra, entirely 
 at the mercy of the Legislature, by which it may be, while inchoate, en- 
 tirely divested, Moore v. City of New York, 4 Sand. Sup. Ct. 456, affirmed, 
 8 N. Y. 110; Lee v. Lindell, 22 Mo. 202; Noel v. Ewing, 9 Ind. 37 ; Lucas 
 V. Sawyer, 17 Iowa 517 ; Barbour v. Barbour, 46 Me. 9 ; Magee v. Y&ung, 
 40 Miss. 164; Weaver v. Gregg, 6 Ohio St. 547. 
 
Thompson v. Morrow. 301 
 
 In order to divest or modify dower, the legislative interest to accomplish 
 that object must be apparent, and the wife's right will not be suffered to be 
 destroyed by an act which can affect dower only through acting upon the 
 husband ; thus, in Bewail v. Lee, 9 Mass. 363, it was held that a wife would 
 not be deprived of her dower by virtue of an act confiscating the land of 
 her husband, or, as to lands acquired by the husband before its passage, by 
 an act declaring that he should be held as an alien, if the husband were a 
 citizen ; for in each case, during the coverture, the husband was so seized 
 as to vest the inchoate right in his wife ; and in Hinds v. Pugh, 48 Miss. 
 268, the rule was laid down, that a statute cutting down dower must be 
 strictly construed, and that the courts would sustain a claim for dower so 
 far as was possible within the terms of such a statute. 
 
 Dower has been held to be an incumbrance, Barnett v. Gaines, 8 Ala. 
 373, within the range of a covenant against incumbrances, Buss v. Perry, 
 49 N. H. 527 ; Shearer v. Ranger, 22 Pick. 447 ; Jones v. Gardner, 10 Johns. 
 266 ; Paries v. Brooks, 16 Ala. 529 : Gazley v. Price, 16 Johns. 268 ; but 
 see Powell v. Monson and Brimjield Manufacturing Co., 3 Mason 347 ; Car- 
 ter V. Denman, 3 Zab. 260. 
 
 Wlio is Entitled to Dower. 
 
 Before proceeding to the examination of the subject of dower consum- 
 mate, we will consider, briefly, who is entitled thereto. We have seen that 
 marriage and death of the husband are necessary conditions of dower, there- 
 fore the widow alone is dowable, and, to make a widow, there must be a 
 lawful marriage, Higgins v. Breen, 9 Mo. 497 ; Donnelly v. Donnelly's 
 Heirs, 8 B. Mon. 113 ; and in a suit for dower, it may be shown in defence 
 that the connection between the demandant and the deceased was not mar- 
 riage but concubinage. In Jones v. Jones, Admr., 28 Ark. 19, Bennett, 
 J., in delivering the opinion of the Court, said : " In a suit for dower, it is 
 clear that an actual marriage, either under the forms prescribed by the 
 statute, or, as prescribed by the common law, is necessary. It is not one 
 of those cases in which a man is estopped, on grounds of public policy or 
 private right, from denying that he is married to a woman. . . . Here the 
 person claiming to be the wife, assuredly, has no higher equity than the 
 relations of the deceased ; for, if instead of being married she lived with 
 the deceased as his concubine, it was her own fault, and she can blame Jier- 
 self alone." 
 
 As a lawful marriage cannot exist where there is any legal impediment, 
 so, where a marriage is solemnized between a man and a woman, and 
 the one has a husband, or the other a wife, living at the time, although 
 26 
 
302 Thompson v. Moeeow. 
 
 they continue to reside together as man and wife until the former's death, 
 there can be no dower, Smith v. Smith, 5 Ohio St. 32 ; Williamson v. Paris- 
 ian, 1 Johns. Ch. 389 ; Fenton v. Reed, 4 Johns. 52 ; Smart v. Whaley, 6 
 Sm. & M. 308 ; and that although the woman has been married in igno- 
 rance of the fact that the man had a wife living, Donnelly v. Donnelly's 
 Heirs, 8 B. Mon. 113 ; in that case, however, it was held that the woman 
 having acted innocently, and the relation having continued after the re- 
 moval of the impediment to its lawfulness, by the death of the first wife, a 
 new marriage, after her death, might be inferred. 
 
 A woman who goes through the form of marriage with a lunatic, or a 
 person non compos mentis, can have no dower in his estate, for a lunatic is 
 unable to contract a marriage, Jenkins v. Jenkins's Heirs, 2 Dana 102. In 
 Rhode Island, this is enacted as the law by statute, Laws (1881), Tit. XX., 
 Ch. 163, §5, p. 416. 
 
 At common law, the wife of an alien is not dowable, Co. Lit. 31 a; 
 Sewall V. Lee, 9 Mass. 363 ; Alsberry v. Hawkins, 9 Dana 177 ; Gurrin v. 
 Finn, 3 Denio 229 ; but where, by act of Legislature, an alien is allowed 
 to purchase land, there his wife may have dower, for the right of dower is 
 inseparable from the estate acquired by the husband, Sutliff v. Forgey, 1 
 Cow. 89 ; 5 Id. 713 ; and she may recover dower against one holding title 
 derived from the husband, although the husband was not entitled to hold 
 land, because of the rule of law which will not permit the alienee, ia an 
 action of dower, to deny the seizin of the husband, Davis v. Darrow, 12 
 Wend. 65. 
 
 In Missouri, it was held, before the enactment of any statute with special 
 reference either to the dowable quality of an alien or the rights of an alien 
 to acquire or hold real property, that under a general act, providing for 
 the descent of the estate of any person ia a particular way, saving " the 
 widow's right of dower, if there be one," an alien's widow might be en- 
 dowed ; the Court, in delivering judgment, dwelt on the different policies 
 of England and of this country on the subject of aliens, and was of opinion, 
 that had the Legislature intended to have excluded the widow's dower, it 
 would have said so, Stokes v. 0' Fallon, 2 Mo. 29. The reasoning of the case 
 seems, however, rather fallacious, and it is hard to see how, where the com- 
 mon law prevails, dower can be given to an alien in the absence of a statute 
 for the purpose. 
 
 In Sutliff V. Forgey, supra, it was held that the alien wife of a native, or 
 of a naturalized citizen, could not have dower ; this position was denied by 
 the Supreme Court of New York in Priest v. Cummings, 16 Wend. 617, but 
 this case was reversed, in 20 Wend. 338, by the Court of Errors, which 
 affirmed the doctrine of Sutliff v. Forgey, and held, further, that the subse- 
 
Thompson v. Morrow. 303 
 
 quent naturalization of the wife would give her no right to dower in lands 
 previously aliened by the husband. 
 
 The New York statute of 1825, with reference to aliens (see post, p. 518), 
 covers the case of a widow's dower ; and the alien widow, even of a person 
 capable of taking land, must file her deposition, as required by said act, in 
 order to be entitled to dower, Ourrin v. Fimi, 3 Denio 229 ; Connolly v. 
 Smith, 21 "Wend. 59. By statute of April 30, 1845, it was enacted that an 
 alien woman, " married, or who may be hereafter married, to a citizen of 
 the United States, shall be entitled to dower." Under this act, it was held 
 that where a marriage took place before the passage of the statute — at a time 
 when both the husband and wife were aliens, — and the husband afterwards 
 was naturalized, and the wife never came to this country, she could not 
 have dower, Oreer v. Sankston, 26 How. Pr. 471. The same conclusion 
 was arrived at in Burton v. Burton, Id. 474, in which case the Court con- 
 sidered also the Act of Congress of Feb. 10, 1855, 10 U. S. Stats, at Large, 
 p. 604, § 2, and held that it was intended for the benefit of an alien who 
 married a person who, at the time of marriage, was a citizen, or, if liberally 
 construed, one who came to the United States with an alien, who was after- 
 wards naturalized, and so had identified herself and her interests with this 
 country. 
 
 In Sistare v. Sistare, 2 Root 468, the wife of a naturalized foreigner, who 
 remained away from her husband, through her own fault, in a foreign coun- 
 try, was held not dowable. This decision, however, was not necessarily 
 upon the question of alienage, since, by the Connecticut law, dower is given 
 ouly to a woman living with her husband at the time of his death or ab- 
 sent, by his consent or default, or divorce without alimony, where she is the 
 innocent party. 
 
 In Pratt v. Teffi, 14 Mich. 191, a widow, non-resident in the State at the 
 time of her husband's death, was held not entitled to dower in land which 
 the husband had conveyed in his lifetime. The same rule prevails in Wis- 
 consin, Rev. Stat., § 2160 ; Bennett v. Haines, 51 Wise. 251. In general, 
 however, it may be considered that residence in another State of the Union 
 will not prevent the widow having her dower, Jones v. Oeroolc, 6 Jones Eq. 
 190. The presumption of alienage, which attaches to a wife from her re- 
 moval with her husband to a foreign country, may be rebutted, Moore v. 
 TMale, 5 B. Mon. 352. 
 
 Statutes conferring upon aliens the right to hold realty, cover the right 
 to dower when claimed by an alien woman ; for these statutes, see post, p. 515. 
 In addition, in the following States aliens are expressly allowed dower by 
 statute, Arkansas, Rev. Sts. CXLL, §2211; Illinois, Rev. Stat., Ch. 41, 
 § 2, p. 423 ; Iowa (except as against a purchaser from the husband^ Msf^ 
 
304 Thompson v. Morrow. 
 
 tated Stats. (1880, McClain), Tit. XVI., Ch. 4, § 2442 ; Michigan, Comp. 
 Laws, Vol. 2, Tit. 22, Ch. CLI., § 4289 (see Pratt v. Tefft, supra) ; Nebraska, 
 Comp. Stat., Pt. 1, Ch. 23, § 20 ; New Jersey, Rev. of 1877, p. 320, pi. 1 ; 
 Oregon Stat., Ch. 17, Tit. 1, § 21 ; Wisconsin, Rev. Stat., Pt. 2, Tit. 20, Ch. 
 98, § 2160 (see Bmnett v. Haines, 51 Wise. 251). 
 
 In what Dower is given. 
 
 Dower, in both the technical and the popular use of the word, applies to 
 realty only, Dow v. Dow, 36 Me. 211 ; Perkins v. Little, 1 Id. 148; Braehett 
 V. Leighton, 7 Id. 383 ; and to realty in its technical sense — corporeal or in- 
 corporeal hereditaments. In Kentucky, following the English precedents, 
 Buckeridge v. Ingram, 2 Ves., jr. .651 ; Drybutter v. Bartholomew, 2 P. Wms. 
 127, the Supreme Court held railroad shares realty and the wife dowable 
 thereof. Price v. Price's Heirs, 6 Dana 107, and adhered to its position 
 afterwards in Copeland v. Copeland, 7 Bush. 349. After the latter decision, 
 however, the Legislature passed an act declaring railroad shares personalty, 
 Act March 22, 1871. The question was also raised in Ohio in Johns v. 
 Johns, 1 Ohio St. 350, but the Court held railroad shares personalty, and 
 refused dower therein ; Welles v. Cowles, 2 Conn. 567, wherein the Supreme 
 Court of Connecticut had held turnpike shares realty, being brought to the 
 attention of the Court, Thueman, J., while disapproving of the decision, 
 drew a distinction between turnpike and railway shares. In Massachusetts, 
 turnpike shares have been decided to be personalty, Tippets v. Walker, 4 
 Mass. 595. 
 
 The New England Kule as to Wild Lands. 
 
 In some parts of the Union it has been held that dower is confined to 
 cultivated or improved, or, at least, useful lands, and hence it has been re- 
 fused in wild lands, ^M^M v. Kaler, 14 Me. 409; Stevens v. Owen, 25 Id. 
 94. In White v. Outler, 17 Pick. 248, Shaw, C. J., thus stated the reason 
 for the rule : " Such estate yields no annual profit. The owner may make 
 a profit of the land, but it is in the exercise of the right of the tenant ia 
 fee, which a tenant for life does not enjoy, that of felling trees;" and see 
 Webh V. Townsend, 1 Pick. 21 ; Conner V. Shepherd, 15 Mass. 164. This 
 which had become common law in New England has been confirmed by 
 statute. New Hampshire, Gen. Stat. (1878), Ch. 20, §3, p. 474; Massa- 
 chusetts Stat. (1882), Pt. 2, Tit. 1, Ch. 124, §4, p. 741. 
 
 The law in New England is, however, contrary to the Ig-w in the Union, 
 generally, which is that dower may be had in wild lands, Schnebly v. 
 
Thompsok v. Moeeow. 305 
 
 Schnehly, 26 111. 116; In Re Campbell, Appellant, 2 Dougl. 141 ; Chapman 
 V. Schroeder, 10 Ga. 321 ; Allen v. McCoy, 8 Ohio 418 ; Hickman v. Irvine's 
 Heirs, 3 Dana 121 ; Brown v. Richards, 17 N. J. Eq. 32. 
 
 Even where the New England rule prevails, there is no presumption that 
 land is wild, Lothrop v. Foster, 51 Me. 367 ; and where the wild land is 
 use.d in connection with other land which is cultivated or improved, or with 
 a dwelling-house, for the purpose of supplying it with fuel, fenciug, etc., 
 dower may be had in the wild land, Stevens v. Owen, 25 Me. 94 ; White v. 
 Willlis, 7 Pick. 143 ; and it may be had in pasture lands, although sepa- 
 rated by some distance and by intervening lots from the house in connec- 
 tion with which tjiey are used, Shattuck v. Gragg, 23 Pick. 88 ; and this 
 applies'to pasture land, which since the alienation of the husband has be- 
 come overgrown. Id. Where land is partly pasture and partly wild, dower 
 will be given in the whole tract, Mosher v. Masher, 15 Me. 371. The test 
 in all cases would seem to be connection with improved land. In Conner v. 
 Shepherd, 15 Mass. 164, Paekee, C. J., in announcing the Massachusetts 
 rule said, after stating the English rule as to the character of property jn 
 which dower would be given and its exceptions: " The question whether 
 forests, parks, and other property of a similar nature are also exceptions, 
 seems never to have occurred, probably because there is no instance in 
 Great Britaiu of any such property held separately and distinct from im- 
 proved and cultivated estates." 
 
 It may be noted, however, that to establish a connection, it is not suffi- 
 cient that the husband, in conveying a tract of woodland from the lot on 
 which he lived, retained a right to take therefrom an abundant supply of 
 fuel, etc., Euhn v. Kaler, 14 Me. 409. 
 
 To take lands out of the category of wild lands, so that the widow may 
 be dowable of them, it is not necessary that they should be productive, but 
 whenever they have been worked, and have not reverted to a state of 
 nature, during the seizin of the husband, it is sufficient, Johnson v. Perley, 
 2 N. H. 56. 
 
 In Massacbusetts, the statute above cited confines dower in wood or other 
 wild lands to lots connected and used in connection with a farm or dwelling, 
 and excludes it even in such lands where they have been cleared by the 
 alienee of the husband. 
 
 Mines and Quarries. 
 
 Dower is given in miues and quarries opened and worked in the lifetime 
 of the husband, Lenfers v. Henke, 73 111. 405 ; Coates v. Cheever, 1 Cow. 
 460; Moore v. Rollins, 45 Me. 493; Billings v. Taylor, 10 Pick. 460; Hen- 
 26* U 
 
306 Thompson v. Moeeow. 
 
 drix V. McBeth, 61 Ind. 473 ; or by the heir or owner of the fee before the 
 assignment of dower, Lenfers v. Henke ; a temporary opening and working 
 will suffice to entitle the widow to dower, Id. ; and her right extends to the 
 whole quarry or miae, and is not confined to the portion actually opened 
 and worked, Moore v. Eollins, Billings v. Taylor ; this is the case even 
 where the practice has been to open mines or quarries in sections, Billings 
 V. Taylor; but of unopened mines, as mines, the widow can have no dower, 
 Coates V. Cheever, supra. 
 
 Growing Crops. 
 
 A widow is entitled to dower in crops growing at the time of her hus- 
 band's death, and is not barred thereof by their having been included in 
 the inventory of her husband's personal estate, Clarh v. Battorf, 1 Thomp. 
 & Cook (N. Y. ^up'r Ct.) 58 ; but where they have been assigned by the 
 husband to pay his debts, she cannot have dower therein, for by their con- 
 structive severance from the realty they have lost their real character, 
 Street v. Saunders, 27 Ark. 554. 
 
 Accretions. 
 
 The widow of a riparian owner is dowable of accretions, whether they 
 took place during the possession of the husband or of an alienee, Lombard 
 V. Kinzie, 73 111. 446 ; Gale v. Kinzie, 80 Id. 132. 
 
 Mere Privilege. 
 
 There is no dower in a mere privilege, as one given by a deed from canal 
 commissioners to use the surplus waters of a canal, Kingman v. Sparrow, 
 12 Barb«201. 
 
 Estate to which Dower Attaches— Freehold of Inheritance. 
 
 The estate in which dower can be had must be an estate of freehold as 
 well as of inheritance, Weir v. Humphries, 4 Ired. Eq. 264 ; Apple v. Apple, 
 1 Head 348 ; it may be had in an estate tail, Amelia Smith's Appeal, 23 Pa. 
 St. 9 ; but the law is otherwise, by statute, in Kentucky, dower being there 
 limited to lands held by the husband in fee-simple. Gen. Stat., Ch. 60, Art. 
 IV., § 2, p. 527. 
 
 It cannot be had in an estate pur autre vie, Fisher v. Orimes, 1 S. & M., 
 Ch. 107 ; Gillis v. Brown, 5 Cow. 388 ; or in a term of years, even if the term 
 be a very long one, as in Goodwin v. Goodwin, 33 Conn. 314, where the 
 
Thompson v. Morrow, 307 
 
 term was nine hundred and ninety years, and Ware v. Washington, 6 Sm. & 
 M. 737, where it was ninety-nine years ; and the ease is not altered by the 
 fact that the lease contains a clause making the tenn renewable forever, 
 Spangler v. Stanler, 1 Md. Ch. 36. 
 
 In Massachusetts, however, an estate for one hundred years and over, so 
 long as fifty years thereof remain unexpired, is declared, by statute, to be, 
 for the purposes of dower, realty, and the widow will be endowed thereof 
 subject to the obligation to pay her proportion of any rent which may be 
 payable therefor, Pub. Stat. (1882), Pt. 2, Tit. 1, Ch. 121, §§ 1, 2, p. 738 ; 
 and in Missouri, dower is given, by statute, in leaseholds, for twenty years 
 or more. Rev. Stat., Vol. I., Ch. 29, § 2186, p. 363. 
 
 Estate subject to Condition, or determinable by Executory 
 Devise. 
 
 Dower may be had in land held subject to a condition for repurchase, 
 CJiase's Case, 1 Bland. 206 ; or in a fee-simple, determinable by executory 
 devise on the death of the husband, without issue living at the time of his 
 death, Enam v. Evans, 9 Pa. St. 190 ; Milledge v. Lamar, 4 Desau. 617 ; 
 Buchannan v. Sheffer, 2 Yeates 374 ; Lovett v. Lovett, 10 Phila. 537 ; Keiv- 
 nedy v. Kennedy, 29 N. J. Law 185. Against this latter position it has been 
 objected, that as where the husband's estate is evicted by title paramount, 
 the seizin is defeated ab initio, and as the wife's dower depends upon the 
 husband's seizin, it should be excluded by such a devise. This question, 
 which has puzzled some of the most profound minds in the law, is thus 
 dealt with by Chief-Justice Gibson in Evans v. Evans : " All agree that 
 where the husband's fee is determined by recovery, condition, or collateral 
 limitation, the wife's dower determines with it. But why a collateral limi- 
 tation rather than by any other limitation of the estate which extinguishes 
 the husband's fee, of which the dower is but appendage ? I have a defer- 
 ential respect for the opinions of Mr. Butler, who was, perhaps, the best 
 conveyancer of his day ; but I cannot apprehend the reason of his distinc- 
 tion in the note to Co. Lit. 241 a, between a fee limited to continue to a 
 particular period at its creation, which curtesy or dower may survive, and 
 the devise of a fee-simple, or a fee-tail, absolute or conditional, which, by 
 subsequent words, is made determinable upon some particular event, at the 
 happening of which curtesy or dower will also cease. In Doe v. Sutton, 
 Lord Alvanly spoke doubtingly of it ; and, without absolutely dissenting 
 from it, reftised to give it his approbation. The system of estates at the 
 common law is a complicated and an artificial one ; but still it is a system 
 complete in all its parts, and consistent with technical reason. But how to 
 
308 Thompson v. Morrow. 
 
 reconcile to any system of reason, teclmical or natural, the existence of a 
 derivative estate, after the extinction of that from which it was derived, 
 "was for him to show ; and he has not done it. He drew his instances from 
 statutory estates, whose limitations have been moulded more benignly; and 
 though he affirms that a wife might have been endowed of an extiuct con- 
 ditional fee before the statute de donis, he gives no precedent for it. The 
 case of a tenant iu tail, says Mr. Preston in his Abstracts of Title, vol. 3, 
 372, ' is an exception arising from an equitable construction of the statute de 
 donis; and the cases of dower of estates, determinable by executory devise 
 and spriagiag use, owe their existence to the circumstance that these limita- 
 tions are not governed by common-law principles.' The mounting of a fee 
 upon a fee, by executory devise, is proof of that. This very satisfactory 
 solution of the doubt was glanced at, but not developed, iu Buckworth v. 
 ThickelL* Before the statute of wills there was no executory devise, and 
 before the statute of uses there was no springing use. Like estates tail, 
 which were created by the statute de donis, and of which there is constantly 
 dower, though tenant in tail claims per formam doni, it was the benign 
 temper of the judges who moulded the limitations of the estates introduced 
 by them, whether original or derivative, so as to relax the severer princi- 
 ples of the common law ; and, among other things, to preserve curtesy and 
 dower from being barred by determinations of the original estate, which 
 could not be prevented. ... It may be safely said that Buchworih v. Thiehell, 
 Goodenough v. Ooodenough,f and Moody v. King, J had a solid foundation 
 in the interpretation of the statutes, which sustained the estate from 
 which the curtesy or dower was derived. Lord Alvanly is reported to 
 have said, in Doe v. Sutton, 3 B. & P. 653, that Buckworth v. ThickeU 
 made a good deal of noise in the profession at the time it was decided — a 
 remark which was properly disposed of by Chief-Justice Best in Moody v. 
 King : ' Whatever conveyancers may have thought of the case,' said he, 
 ' when it was first decided, they have since considered it as having settled 
 the law; and it would be productive of much confusion if we were to un- 
 settle it again.' Including the decision then made, we have three cases in 
 point without an antagonist case in all the books ; and if to overturn them 
 for the sake of a technical principle, would have bred much confusion then, 
 it would breed more confusion now. The English courts have gone upon 
 a liberal principle, and we are bound to follow them." 
 
 Where an estate is given upon a condition precedent and until the fiilfil- 
 
 *10 Moore 285 n.; 3 B. & P. 652 n.; 4 Dougl. 323. 
 
 t2 Dickens 1765; and see statement of the case in 3 Preston on Abstracts 372. 
 
 j 10 Moore 233 ; 2 Bmg. 447. 
 
Thompson v. Morrow. 309 
 
 ment of that condition to another, the latter has such an estate of inheri- 
 tance as will support dower, Jackson v. Kip, 3 Hals. 241. 
 
 Estate in Common. 
 
 Dower may be had in an estate held in common, Holhrook v. Finney, 4 
 Mass. 566 ; Pynchon v. Lester, 6 Gray 314 ; Hanill v. JSolloway, 24 Ark. 
 19 ; Blossom v. Blossom, 9 Allen 254 ; Ross v. Wilson, 58 Ga. 249 ; Hill v. 
 Gregory, 56 Miss. 341 ; Cook v. Walker, 70 Me. 232. 
 
 Joint-Tenancy. 
 
 There is no dower of an estate in joint- tenancy, Mayburry v. Brien, 15 
 Pet. 21; Coekrill v. Armstrong, 31 Ark. 580 ; for the title of the joint-tenant 
 by survivorship is prior to that of the wife by dower ; as said by Evans, J., 
 in Reed v. Kennedy, 2 Strobh. 67 : " The special reason given in all the 
 cases why a widow shall not be endowed of a joint-tenancy, is that the sur- 
 viving joint-tenant, being already seized of the whole, is in, by prior title, 
 to that which the law casts upon her ; and the same reason is given why 
 the heir of the deceased tenant cannot take by inheritance." 
 
 Where, however, the jiLS accrescendi is abolished as between joint-tenants, 
 there the widow may have dower, for eessat ratione eessat ipsa est lex, and the 
 mere abolition of the right, without any express mention of the widow or 
 of dower, is sufficient to bring about this result. Reed v. Kennedy, supra ; 
 Dams v. Logan, 9 Dana 185. 
 
 In Mississippi, before the estate in dower was abolished, a woman was, 
 by statute, dowable of an estate in joint-tenancy, James v. Rowan, 6 S. & 
 M. 393 ; and she may be endowed of such an estate in "West Virginia, Kev. 
 Stat., Vol. 2, Ch. 82, § 18, p. 556. 
 
 Partnership Lands. 
 
 The widow of a co-partner is not entitled to dower in partnership lands, 
 as against the firm or its creditors, Galbraith v. Gedge, 16 B. Mon. 631 ; 
 Duhring v. Duhring, 20 Mo. 174; Greene v. Surviving Partners of Greene & 
 Co., 1 Ohio 535 ; Sumner v. Hampson, 8 Id. 328 ; Hiscock v. Jaycox, 12 N. B. 
 K. 507; Simpson v. Leech, 86 111. 286; but where real property is held by a 
 firm, and has not otherwise had the character of personalty impressed upon 
 it, the law in the United States will give a widow dower in her husband's 
 proportion of the land after the partnership debts have been paid, Sale v. 
 Plummer, 6 Ind. 121 ; Loubat v. Nourse, 5 Fla. 350 ; Syhes v. Sykes, 49 
 Miss. 190 ; Goodburn v. Stevens, 1 Md. Ch. 420 ; S. C. 5 Gill 1 ; and in 
 Campbell v. Campbell, 30 N. J. Eq. 415. 
 
 The fact that the title to the property is taken in the name of one of the 
 
310 Thompson v. Moekow. 
 
 partners instead of in the name of the firm, does not alter the law, Bopp v. 
 Fox, 63 111. 540 ; Mcoll v. Ogden, 29 111. 323 ; and the law is the same 
 where lands, purchased with partnership funds for partnership purposes, 
 have been conveyed to the several individual members of the firm, as indi- 
 viduals, Willet V. Brown, 65 Mo. 138. 
 
 It is not, however, every purchase of land by partners, even with part- 
 nership funds, which will render the land liable to be dealt with as partner- 
 ship property, Ware v. Owens, 42 Ala. 212 ; the purchase must be for part- 
 nership purposes, Galbraith v. Oedge, supra; and in lands purchased by 
 partners, with no agreement that they shall be treated as joint stock, and 
 where there is no application or use of the land, showing that the original 
 understanding was that they should be so treated, the wife of a co-owner 
 will be entitled to her dower, Wooldridge v. WUkins, 3 How. (Miss.) 360; 
 and in Marhham v. Merrett, 7 Id. 437, where partners had extended their 
 business to the purchase and sale of town lots, but had made conveyances 
 not in the partnership style but in their individual names as tenants in 
 common, it was held that the wife of a partner was entitled to dower. 
 
 The reason of the refiisal of dower in partnership land, rests upon the 
 agreement of the partners that it shall be liable to sale for the partnership 
 debts. This agreement need not be expressed with reference to the lands, 
 but may be inferred from the general agreement of partnership. See Gfreene 
 V. Surviving Partners of Greene & Co., 1 Ohio 535. This case is slightingly 
 alluded to by the Vice-Chancellor in Smith v. Jackson, 2 Edw. 28, but it 
 seems to contain a full and clear statement of the law and to be well 
 reasoned. 
 
 Where land was purchased for five persons, who signed an agreement 
 that it should be held by one in trust, to receive the avails until a sale and 
 conversion, it was decided that there was such an agreement as converted 
 the land into personalty, and that the widow of one of the partners who 
 died before sale could not have dower, Coster v. Clarke, 3 Edw. 428. 
 
 It has been held in the case of a planting partnership, that the widow 
 should be endowed of her husband's share of the profits, /S^/te v. Sykes, 49 
 Miss. 190. 
 
 What Title will Sustain Dower— Warrant Lands— Pre-emption 
 Rights, etc. 
 
 The question sometimes arises as to what title, other than a legal and per- 
 fected one, will sustain dower. 
 
 In the early days of Pennsylvania, lands, in that State, held by warrant 
 were not subject to dower. In Dodson v. Davis, 2 Yeates 168, one Dodson had 
 settled on land without obtaining an office title ; he sold the land in 1755, and 
 
Thompson v. Moeeow. 311 
 
 in 1776 obtained a warrant therefor. Dower being claimed in the land, the 
 Court (McKean, C. J., and Yeates, J.) said : " Dower must be of a legal 
 estate in the husband. The right which John Davis had to these lands in 
 1755 cannot be deemed such. Under the customs and established practice 
 of the country, lands warranted, and even surveyed, were considered at that 
 early period, and afterwards, as chattel interests, and sold as such in the 
 course of administration. This doctrine has been established in a variety 
 of cases, and particularly in Duncan's Lessee v. Walker, in January Term, 
 1793." But the same Court, in 1799, gave dower of lands held by im- 
 provement right alone, Kelly v. Mahan, 2 Yeates 515. That dower will not 
 be given in land held by warrant, has also been held in the quite recent 
 case of Drennan v. Walker, 21 Ark. 539 ; and see Mulhollan v. Thompson 
 et ux., 13 Ai-k. 232 ; but see Blakeney v. Ferguson, 20 Id. 547. 
 
 There is no dower in a mere pre-emption right under an act of Congress, 
 Davenport v. Farrar, 1 Scam. 314 ; Wells v. Moore, 16 Mo. 479 ; Bowers v. 
 Keesecker, 14 Iowa 301 (overruling Davis v. O'Ferrall, 4 Green (Iowa) 358); 
 Langworihy v. Heeb, 46 Iowa 64 ; or in a mere right to receive a patent, Chin- 
 nuhhlee v. Nicks, 3 Port. 362 ; Woolley v. Magie, 26 111. 526. There is, how- 
 ever, dower in lands held by certificate from the United States, the price hav- 
 ing been paid, FleesonY. Nieholson,'W alker (Miss, Eep.) 247; and in military 
 warrant lands, Burke v. Barron, 8 Iowa 132. In Johnson v. Parcels, 48 Mo. 
 549, a distinction was taken between such lands and lands held by pre- 
 emption right, and it was decided that where a warrant was issued to a 
 soldier under.the Act of May 20, 1836, 5 U. S. Stat, at Large, p. 31, and a 
 patent was issued in his name after his death, it would relate to the day of 
 the soldier's enlistment, so as to give dower to the widow, if the husband 
 died possessed of the land, though the claim of dower would not be enforced 
 to the prejudice of innocent purchasers of the land. 
 
 Dower is given in a donation claim, the mere holding it being regarded 
 as a sufficient seizin, Fbey v. Ebey, 1 Wash. Terr. 185 ; and in land claims 
 under the Act of Congress of March 3, 1803, sin,ce, by that act, the heirs 
 of the grantee took by descent, and, of course, subject to all the incidents 
 of an estate by descent, Hackler's Heirs v. Cabel, Walker (Miss. Rep.) 91, 
 and that although the patent did not issue until after the death of the 
 claimant, McKay v. Freeman, 6 Oreg. 449. 
 
 Character of Estate— Dower in Equitable Estate. 
 
 At common law, formerly, in order to sustain dower it was necessary 
 that the husband's estate should have been legal-f see Tudor's Leading 
 Cases in Real Property, note p. 71 ; Grabbe v. Pratt, 15 Ala. 843 ; Mann 
 V. Edson, 39 Me. 25 ; and it was so held in Virginia prior to the act of 
 
312 Thompson v. Morrow. 
 
 1785, which took effect in 1787, Winn v. ElUotCs Widow, Hard. 402 ; Clai- 
 borne V. Henderson, 3 H. & M. 322 ; ia Maryland prior to the act of 1818, 
 Hopkins v. Frey, 2 Gill 369; and ia Arkansas under the territorial statute, 
 Blakeney v. Ferguson, 20 Ark. 558 ; Kirby v. Vantrece, 26 Id. 868 ; and 
 the common law rule in this respect still prevails in Maiae, Hamlin v. 
 Hamlin, 19 Me. 141 ; and see Mann v. Edson, 89 Id. 25 ; and New Hamp- 
 ' shire, Hopkinson v. Dumas, 42 N. H. 301. But where the legal and equi- 
 table estates merge during the coverture, the wife wiU be dowable. Thus in 
 the case just cited, H. and others purchased land ; the deed was made to 
 H., ia trust for himself and the others. Afterwards H. purchased the shares 
 of his co-tenants, giving his notes for the price. The property was sold on 
 a judgment obtaiaed on one of the notes ; it was held that his wife was 
 entitled to dower. 
 
 The general rule, however, in this country, is that the widow may have 
 dower in an equitable as well as a legal estate. Shoemaker v. Walker, 2 S. & 
 R. 554; Orabb v. Pratt, 15 Ala. 843; Lawson v. Morton, 6 Dana 471; 
 Stevens v. Smith, 4 J. J. M. 64 ; Yeo v. Mercereau, 8 Harr. (N. J.) 387 ; 
 Lewis V. James, 8 Humph. 537 ; Robinson v. Miller, 1 B. Mon. 88 ; Kirby 
 V. Vantrece, 26 Ark. 368 ; Miller v. Wilson, 15 Ohio 108 ; Owen v. Bobbins, 
 19 lU. 545. 
 
 Dower is given, by statute, in equitable estates in Ohio, Stat., Pt. 2, Tit. 
 IV., Ch. 3, §4188, p. 1049, where held by bond, articles, lease, or other 
 evidence of claim; Illinois, Eev. Stat. (1880), Ch. 41, §1, p. 425; Mary-, 
 land, Tit. XXIV., Art. IV., § 1, p. 397 ; Alabama, Code (.1876), Pt. 2, 
 Tit. 3, Ch. 2, Art. 1, §2232. 
 
 To render an equitable estate liable to dower, it must be perfect, the 
 cestui que trust must be so declared by the instrument by which the estate 
 is held or otherwise, or must be in such a position towards the land that a 
 chancellor would compel a conveyance thereof to him, Worsham v. Callison, 
 49 Mo. 206 ; Pugh v. Bell, 2 T. B. Mon. 125 ; Bailey v. Duncan's Rep., 
 4 Id. 256 ; Reed v. Whitney, 7 Gray 533 ; Stow v. Steel, 45 111. 328 ; Owen 
 V. Robbins, 19 Id. 545 ; Harrison y. Boyd, 36 Ala. 203 ; Boyd v. Harrison, 
 Id. 533 ; Gillespie v. Somerville, 3 St. & Port. 447 ; Edmondson v. Montague, 
 14 Ala. 370 ; Smith v. Addleman, 5 Blackf. 406 ; hence there will be no 
 dower of lands which the husband held by a mere verbal contract, not 
 enforceable under the statute of frauds, Herron v. Williamson, 6 Lit. 250 ; 
 and see Lane v. Courtney, 1 Heisk. 331 ; or of which he was ia possession 
 by virtue of a contract of purchase, but without having held the legal title 
 or having paid for the' land, Barnes v. Oay, 7 Iowa 26 ; Smith v. Addleman, 
 supra; Lobdell v. Hayes, 4 Allen 187; Junk v. Cannon, 84 Pa. St. 286; 
 and this, although he had given his promissory note for the price, Secrest v. 
 
Thompson v. Morrow. 313 
 
 McKenna, 6 Rich Eq. 72 ; or even if he had tendered the price, Latham v. 
 MeLain, 64 Ga. 320. As said by Bleckley, J., in delivering the opinion 
 in the last cited case, " mere tender of money does not operate as payment, 
 or work a transmutation of title. The money which the complainant's hus- 
 band tendered to the railroad company remained his money, and if it was 
 still on hand when he died, became assets of his estate ; and if he owned 
 the money at the time of his decease, he surely did not own the land also. 
 The tender, together with the other facts, put him in a situation where he 
 might have filed a bill for specific performance, and obliged the railroad 
 company to invest him with title, but he did not pursue that course. . . . 
 The most that can be said is, that he died possessed of a right to become 
 seized of the land by proceedings in equity ; and, possibly, if the right 
 were now actually enforced by his executors, administrators, or heirs at law, 
 so as to render the land the property of the estate fully and completely, 
 the widow might be dowable of it on the doctrine of relation." It is also 
 held that if the husband, although he had not paid the price of the land, 
 left the contract at the time of his death in such position that his heirs 
 would be entitled to demand a conveyance on paying the purchase-money, 
 the widow may have dower on doing equity. Brewer v. Vanarsdale's Heirs, 
 6 Dana 208 ; and see Thompson v. Cochran, 7 Humph. 72 ; Stow v. Steel, 
 45 111. 328, the last-named case being decided under the statute of Illinois 
 last above cited, which expressly provides for dower in cases where " the 
 title " may be completed after the husband's death ; and see also Revised 
 Stat, of Missouri, Vol. I., Ch. 29, §2187, p. 363. 
 
 It has been quite generally held that to sustain dower in an equity, the 
 equity must subsist at the time of the husband's death, and hence, if trans- 
 ferred by him in his lifetime, the wife's right is gone, Bowie v. Berry, 1 Md. 
 Ch. 452 ; Hamilton v. Hughes, 6 J. J., Mar. 581 ; Gully v. Ray, 18 B. 
 Mon. 107 ; Rands v. Kendall, 15 Ohio 671 ; Dmigald v. Hepburn, 5 Fla. 
 568 ; Purdy v. Purdy, 3 Md. Ch. 547 ; Miller v. Wilson, 15 Ohio 108 ; St. 
 Clair V. Morris, 9 Id. 15 ; Taylor v. Fowler, 18 Id. 567 ; Carter v. Walker, 
 2 Ohio St. 339 ; Carter v. Goodin, 3 Id. 75 ; Miller v. Stump, 3 Gill 304 ; 
 Stow V. Steel, 45 111. 328 ; Lohdell v. Hays, 4 Allen 187 ; Hawley v. James, 
 5 Paige 318 ; Hicks v. Stebbins, 3 Lans. 39 ; Pritts v. Ritchey, 29 Pa. St. 71 ; 
 Glenn v. Clark, 53 Md. 580 ; but it is thought that the law, as thus stated, 
 should be confined to imperfect equities and to equitable interests, and does 
 not extend to perfected equitable estates in the stricter sense. In Yeo v. 
 Mereereau, 3 Harr. (N. J.) 387, the law was held to be that where any one 
 was seized to the use of the husband at any time during the coverture, if 
 in equity the husband was the real owner and had a right to demand a 
 conveyance, the right of dower would be enforced, although the equitable 
 27 
 
314 Thompson v. Morrow. 
 
 estate passed from the husband during his life ; and in Atkin v. Merrell, 39. 
 111. 62, it was held that where a husband was seized of an equitable estate 
 of inheritance, he could no more bar his wife's dower by a sale, or by pro- 
 curing one to be made by the holder of the legal title, than if he himself 
 held the legal title ; see Bank of Commerce v. Owens, 31 Md. 320 ; Swaine 
 V. Ferine, 6 Johns. Ch. 482 ; but see also Bands v. Kendall, 15 Ohio 671 ; 
 Duval V. Febiger, 1 Cincin. 268. 
 
 Dower in Equity of Redemption. 
 
 There may be dower in an equity of redemption as against all persons but 
 the mortgagee and those who stand in his place. Coles v. Coles, 15 Johns. 
 319 (and see Hitcheoek v. Harrington, 6 Johns. 290 ; Collins v. Torrey, 7 Id. 
 278) ; Reed v. Morrison, 12 S. & R. 18 ; 8now v. Stevens, 15 Mass. 278 ; 
 Carll V. Butman, 7 Me. 102 ; Manning v. Laboree, 33 Id. 343 ; Simonton 
 V. Gray, 34 Id. 50 ; Thompson v. Thompson, 1 Jones, Law 430 ; Not- 
 tingham V. Calvert, 1 Ind. 527 ; Stoppelhem v. Shulte, 1 Hill (S. C.) 200 ; 
 Hiiichman v. Stiles, 1 Stock. 361 ; Bossiter v. Cossit, 15 N. H; 38 ; Cass v. 
 Martin, 6 Id. 25 ; Bobinson v. Bates, 3 Mete. 40 ; Hastings v. Stevens, 29 
 N. H. 464 ; Montgomery v. Bruere, 2 South. 265, reversing S. C. 1 Id. 260 ; 
 Opdyke v. Bartles, 3 Stock. 133 ; Thompson v. Boyd, 1 Zab. 58 ; Campbell 
 V. Knights, 24 Me. 332 ; Draper v. Baker, 12 Gush. 288 ; Van Duyne v. 
 Thayre, 14 Wend. 233 ; Fish v. Fish, 1 Conn. 559 ; Titus v. Neilson, 5 
 Johns. Ch. 452 ; Bell v. Mayor of New York, 10 Paige 49 ; McMahan v. Kim- 
 ball, 3 Blackf. 1 ; Buiherford v. Munce, Walk. (Miss. Eep.) 370 ; Denbon 
 V. Murray, 8 Barb. 618 ; Hartshome v. Hartshorne, 1 Green Ch. 849. We 
 use the term equity of redemption here as covering the estate left in the 
 husband where a mortgage has been made prior to his marriage, or where 
 the wife has joined in the mortgage, so that the legal estate was either not 
 technically in the husband during the co-^erture, or had been surrendered 
 with the wife's assent, or where, during the coverture, the husband, with- 
 out his wife, has made a mortgage in a State where the joinder of the wife 
 is not necessary to render it binding upon her, as in the case of Pennsyl- 
 vania. 
 
 In Bird v. Gardner, 10 Mass. 864, however, the Court held that the 
 right of dower in an equity of redemption existed only in equity, and that 
 in view of the limited equity powers given to the courts in Massachusetts, 
 there was no way of enforcing the right by adversary proceedings in that 
 commonwealth; and in Stelle v. Carroll, 12 Pet. 201, the Supreme Court of 
 the United States held that, as at the common law in England, there was 
 no dower in an equity of redemption, and as that was the law of Maryland 
 
Thompson v. Moreow. 315 
 
 at the time of the cession of the District of Columbia, there could be no 
 dower in an equity of redemption in the district. That dower in an 
 equity is enforceable only in equity, is also held in McMahan v. Kimball, 3 
 Blackf 1. 
 
 Dower in an equity of redemption is given by statute in Maine, Eev. St. 
 (1871), Tit. IX., Ch. 103, § 12, p. 758 ; Arkansas, Rev. St., Ch. XLIX., 
 § 2213, p. 455 ; Michigan, Comp. Law, Vol. 2, Tit. XXII., Ch. CLI., § 4271, 
 p. 1359 ; Wisconsin, Rev. St., Pt. 2, Tit. 20, Ch. 98, § 2162, p. 626 ; New 
 York, Rev. St. (1882), Vt 2, Ch. 1, Tit. 3, §4, p. 2197; Nebraska, Comp. 
 St., Ch. 23, § 3, p. 212 ; Oregon St., Ch. 17, Tit. 1, § 3, p. 584 ; Tennessee, St. 
 (1871, T. & S.), Pt. 2, Tit. 3, Ch. 3, § 2399, p. 1075 ; Massachusetts, Gen. 
 St. (1882), Pt. 2, Tit. 1, Ch. 124, § 5, p. 741; Vermont, St., Tit. 15, Ch. 114, 
 § 2216, p. 450 ; Illinois, Rev. St., Ch. 41, § 3, p. 425. 
 
 Requisites of Equitable Dower. 
 
 To entitle the widow to an equitable dower, the husband must have been 
 possessed of a vested equitable interest or estate, and that estate or interest 
 must be inheritable, Davenport v. Farrar, 1 Scam. 314; there is no dower 
 in a mere equity, Farnum v. Loomis, 2 Greg. 29, or in a mere power to sell 
 realty, though coupled with an interest in the proceeds thereof, Germond v. 
 Jones, 2 Hill 569. Thus in Porter v. Ewing, 24 111. 617, P. and B. entered 
 into an agreement, by the terms of which B. should furnish money, with 
 which P. should carry on a trading business in land. It was also agreed 
 that the title to land purchased should be taken in the name of B., and 
 that P. should receive one-half of the profits resulting from the trade. P. 
 bought land in accordance with the agreement, and sold the same : his 
 wife claimed dower. It was held that she was not dowable, since her hus- 
 band's right was only to the profits arising from the sale of the land, and 
 he could have at no time demanded a conveyance of any part of the land 
 to him, and that B. held the land in his own right until sale, and after that 
 as a trustee for the purchaser. 
 
 Character of Seizin Necessary to Support Dower. 
 
 Having considered the nature of the estates, interests and equities in 
 which dower may be had, it remains to consider the seizin necessary to sup- 
 port the estate ; and here we may notice that, while seizin, or a right there- 
 to, on the part of the husband is necessary, Butler v. Cheatham, 8 Bush. 694 ; 
 Mann v. Edson, 39 Me. 25, a much more liberal rule of seizin is established 
 in this country than at the old common law. As said by Duncan, J., in 
 Beed v. Morrison, 12 S. & R. 18 : " The truth is that the doctrine of seizin 
 
316 Thompson v. Morrow. 
 
 is little known here, because it is inconsistent with the genius and spirit of 
 our laws, which give a free scope to the alienation and transfer of property, 
 untrammelled with the feudal doctrine of investiture and its concomitants, 
 and with us seiziu is for many substantial purposes, the beneficial interest 
 and right of ownership." Accordingly, it is held that ia claiming dower the 
 widow need only give evidence which raises a fair presumption of seizin of 
 the husband, which may be rebutted, Becker v. Quigg, 54 111. 390; and for 
 the purpose of raising such presumption, proof of mere possession is suffi- 
 cient, Mann v. Edson, mpra; Knight v. Mann, 3 Fairf 41 ; Hale v. Munn, 
 4 Gray 182 ; MoOullers v. Haines, 39 Ga. 195 ; and will support dower as 
 against all except those who claim by a title superior to that of the hus- 
 band, Torrence v. Carhry, 27 Miss. 697. The reason for not requiring a 
 strict deduction of title on the part of the widow is thus stated by Ewing, 
 C. J., in Griggs v. Smith, 7 Hals. 22 : " The claim of dower is favored in 
 the law. The widow is not entitled to the custody of the muniments of 
 title ; they belong to, and therefore are presumed to be held by, the hus- 
 band in his lifetime, and after his decease by his heirs, or, in case of aliena- 
 tion, by the alienee. Hence, a strict deduction of title is not required of 
 her. It is enough for her to produce such evidence as will raise a fair 
 presumption of the seizin of the husband ; and such presumption, unless 
 overcome by the proof produced by the defendant, will support her claim." 
 In this case, a deed from the person in possession immediately before the 
 husband to him, and evidence of the latter's possession, were held sufficient 
 to show seizin. Where two persons bought land and divided it, taking 
 separate possession, and one. A., sold his lot, the other, B., joining with him 
 in the deed, it was held that while this deed raised a prima fade case of 
 tenancy in common, yet the sole possession of A. was sufficient evidence of 
 sole seizin to give his wife dower of the whole of his lot, Dolf v. Basset, 
 15 Johns. 21 ; and where the husband, having a deed for certain land, en- 
 tered on certain other land by mistake, and afterwards sold, and the pur- 
 chaser took a quit-claim deed from the vendor of the husband, it was held 
 that the wife could have her dower, as against the purchaser, based on the 
 husband's possession, Hale v. Munn, 4 Gray 132 ; and in Cochrane v. Libby, 
 18 Me. 39, where land was levied on as belonging to A., who subsequently 
 died, it was held that, as against a tenant who claimed title only under the 
 levy, there Avas sufficient evidence of seizin to give dower to A.'s widow. 
 
 Seizin in Law Sufflcient. 
 
 Seizin need not be in deed; seizin in law is sufficient, Co. Lit. 31 a; 
 Doct. & Student Dial. II., Ch. 15 ; Atwood v. Atwood, 22 Pick. 283 ; Gal- 
 
Thompson v. Morrow. 317 
 
 braith v. Green, 13 S. & R. 85 ; and see Kentucky, Gen. St., Ch. 52, Art. 
 IV., §4, p. 529; Missouri, Rev. St., Vol. L, Ch. 29, §2207, p. 367; but 
 where a deed was delivered to the husband, and was not registered by him, 
 as required by law, and, so far as appears by the report of the case, there 
 was no other evidence of seizin besides the deed, it was held that there was 
 shown no such seizin as would entitle the widow to dower, Thomas v. 
 Thomas, 10 Ired. Law 123 ; at all events, as against an innocent purchaser, 
 Emerson v. Sarries, 6 Mete. 475. 
 
 Grantee of Husband cannot Deny the Seizin of his Grantor, 
 but may Show the Character of the Seizin. 
 
 The grantee of the husband is estopped upon familiar principles from 
 denying the seizin of his grantor, Davis v. Logan, 9 Dana 185 ; but not 
 from showing the character of the seizin, and that it was such as would not 
 entitle the widow to dower, Foster v. Bivinel, 49 Me. 44 ; Gammon v. Free- 
 man, 31 Id. 243; Moore v. Fsty, 5 N. H. 479; Edmondson v. Welsh, 27 
 Ala. 578 ; Otis v. Parshley, 10 N. H. 403 ; Sparrow v. Kingman, 1 Comst. 
 242 (overruling as to the character of the estoppel, Sherwood v. Vanden- 
 hurgh, 2 Hill (N. Y.) 303 ; Bowne v. Potter, 17 Wend. 164 ; Davis v. 
 Darrow, 12 Id. 65 ; Eitchcoek v. Harrington, 6 Johns. 290 ; Collins v. Torry, 
 .7 Id. 278) ; Crittenden v. Johnson, 11 Ark. 94 ; Famum v. Loomis, 2 
 Oreg. 29. 
 
 Seizin must be of Present Estate in Possession— Dos €le dote 
 peti non debet — Remainders. 
 
 The seizin which will give dower must be of a present estate of freehold 
 in possession, and, therefore, where the husband is seized of a vested re- 
 mainder, dependent upon a previous freehold, and the particular estate is 
 not determined in the lifetime of the husband, his widow can have no 
 dower in the remainder, Dunham v. Osborn, 1 Paige 634 ; Otis v. Paishley, 
 10 N. H. 403 ; Northmtt v. Whipp, 12 B. Mon. 65 ; Durando v. Durando, 
 23 N. Y. 331 ; Arnold's Heirs v. Arnold's Admrs., 8 B. Mon. 202 ; Fisk v. 
 Eastman, 5 N. H. 240 ; Eldridge v. Forestal, 7 Mass. 253 ; Brooks v. Everett, 
 13 Allen 457 ; Green v. Putnam, 1 Barb. 600 ; Cocker's Exrs. v. Philips, 
 12 Leigh 248 ; Blow v. Maynard, 2 Id. 29 ; Reynolds v. Reynolds, 5 Paige 
 161 ; Royster v. Royster, Phil. (N. C.) Law 226 ; Gardner v. Green, 5 R. I. 
 104 ; Wilmarth v. Bridges, 113 Mass. 407 ; Vanleer v. Vanleer, 3 Tenn., Ch. 
 23 ; Butler v. Cheatham', 8 Bush. 594. Hence arises the rule dos de dote 
 peti non debet; in other words, that where one has died seized of lands 
 which descend to the heir subject to the dower of the widow of the dece- 
 27* 
 
318 Thompson v. Moeeow. 
 
 dent, and the heir has died before the widow, his widow will take dower in 
 two-thirds only of her husband's lahds so derived, Reynolds v. Reynolds, 
 mpra; Safford v. Safford, 7 Paige 259; Reitzel v. Kard, 65 N. C. 673; 
 Pechham v. Hodmen, 8 R. I. 160. 
 
 In Bear v. Snyder, 11 Wend. 592, the Supreme Court of New York con- 
 sidered the existence of a previously assigned dower a temporary bar only, 
 and held that on the death of the first widow, the second would have dower 
 of her dower lands. Savage, C. J., said: "But it is objected that this suit 
 seeks to recover dower upon dower. This cannot be done ; a widow is not 
 dowable of lands assigned to another woman in dower. Cruise, Ch. 3, § 20 ; 
 but this proves only that the plaintiff is not entitled to dower in the one- 
 ninth assigned to Mary Hall [the widow of the father-in-law] during her 
 life. But she is entitled now to be endowed of the remaining eight-ninths; 
 and, if she survives Mary Hall, she will be entitled to one-third of the 
 ninth part." This case has been unfavorably criticised ; see Reitzel v. Kard, 
 65 N. C. 673, and is not authority in its own State. In the Matter of Cregier, 
 1 Barb. Ch. 598, Walwoeth, Ch., in deciding that where the husband 
 takes land by descent from his father, subject to the dower of his mother, 
 which is afterwards assigned to her, the assignment will relate so as to bar 
 the widow of the husband, dying in the life of his mother, from dower, even 
 in the reversion of the estate, assigned for the previous dower, said, after 
 quoting Bear v. Snyder : " It is evident, however, that the chief-justice had 
 overlooked the distinction which exists between an estate which comes to 
 the husband or wife subject to the mere contingent right of dower of the 
 wife of the grantor, in ease she survives him, and an estate by descent, 
 which the heir-at-law takes subject to the present right of dower. In the 
 first case, by act of the parties, the grantee of the land became seized of a 
 present estate in the whole premises, subject only to a contingent right of 
 dower in one-third thereof ; so that upon the death of such grantee during 
 the life of the widow of the grantor, the husband or wife of such grantee 
 is entitled to an estate by the curtesy or dower in the whole premises, sub- 
 ject only to the incumbrance of the prior right of dower in one-third of 
 that estate during the actual continuance of the prior right of dower in 
 one-third of that estate during the actual continuance of that right. But 
 in the other case, the assignment of dower to the M'idow of the ancestor re- 
 lates back to the time of his death, so as to prevent the seizin of the heir- 
 at-law of a present estate in the one-third of the premises assigned to the 
 widow during her life.'' In support of his position, the learned chancellor 
 cited Co. Lit. 31 a, as follows : 
 
 "And yet of every seizin in law, or actual seizin of lands or tenements, 
 a woman shall not be endowed. For example, if there be grandfather. 
 
Thompson v. Moreow. 319 
 
 father, and son, and the grandfather is seized of three acres of land in fee, 
 and taketh wife and dieth, this land descendeth to the father, who dieth 
 either before or after entry. Now is the wife of the father dowable. The 
 father dieth, and the wife of the grandfather is endowed of one acre, and 
 dieth. The wife of the father shall be endowed only of the two acres resi- 
 due ; for the dower of the grandmother is paramount the title of the wife 
 of the father, and the seizin of the father, which descended to him (be it 
 in law or actual) is defeated ; and now upon the matter, the father had but 
 a reversion expectant upon a freehold, and in that case Dos de dote peti non 
 debet ; although the wife of the grandfather die, living the father's wife. 
 And here note a diversity between a descent and a purchase, for in the case 
 aforesaid, if the grandfather had infeoffed the father, or made a gift in tail 
 unto him, there, in the case above said, the wife of the father, after the 
 decease of the grandfather's wife, should have been endowed of that part 
 assigned to the grandmother-; and the reason of this diversity is for that the 
 seizin, that descended after the decease of the grandfather to the father, is 
 avoided by the endowment of the grandmother, whose title was consummate 
 by the death of the grandfather ; but in case of the purchase or gift, that 
 took effect in the life of the grandfather (before the title of dower of the 
 grandmother was consummate), is not defeated, but only quoad the grand- 
 mother ; and in that case there shall be dos de dote." 
 
 In Durando v. Durando, 23 N. Y. 331, the Court of Appeals concurred 
 in the result reached in Cregier's case, but held that the rule should em- 
 brace cases wherein the title of the husband was by devise as well as those 
 wherein it was by descent ; and, after quoting the above passage of Coke, 
 Selden, J., said: "This word purchase, which occurs in this paragraph, 
 when used in contradistinction to descent, includes the obtaining of title by 
 devise as well as by deed. But the whole reasoning of the passage cited, 
 shows that the effect attributed to a purchase, follows only when the land 
 is conveyed by deed ; the sole reason given for the distinction is that a 
 purchase takes effect in the lifetime of the vendee, and the purchaser be- 
 comes at once seized of a defeasible estate ; while in case of a descent, the 
 heir is never seized of the land assigned for dower during the life of the 
 widow, as her title relates back in all cases to the death of her husband." 
 The rule of dos de dote peti non debet applies only where there has been an 
 assignment to the first widow, or where she is in actual possession of the 
 land, McLeery v. McLeery, 65 Me. 172. 
 
 An estate by the curtesy, existing in the father of the husband, will, un- 
 less determined in the latter's lifetime, prevent dower, Leaoh v. Leach, 28 
 N. Y. S. C. 881. 
 
 In Moore v. Esty, 5 N. H. 479, A. conveyed to B., and B., at the same 
 
320 Thompson v. Moerow. 
 
 time, reconveyed to A. for life, with the proviso that A. should not take 
 possession so long as B. performed certain conditions; it was held that, 
 although a security, A.'s estate was a life estate, which would debar B.'s 
 widow from dower, and that by virtue of the rule of instantaneous seizin 
 (vide infra, p. 325) no such estate had vested in B. aS would sustain dower. 
 
 When the remainder is aliened during the coverture, the widow can have 
 no dower, Shoemaker v. Walker, 2 S. & E,. 554. 
 
 In Ohio, the law as to dower in a remainder is different from that above 
 stated, since in that State dower is given, by statute, in a remainder or a 
 reversion in fee, with the provision that the dower shall not be assigned 
 until after the determination of the particular estate. Laws, Ft. 2, Tit. IV., 
 Ch. 3, § 4188, p. 1049. 
 
 An outstanding lease for years, which has not expired at the time of the 
 husband's death, will not deprive the widow of dower, for a mere chattel 
 interest will not prevent the vesting of a fee in possession, Sykes v. Sykes, 
 49 Miss. 190; Boyd v. Hunter, 44 Ala. 705; and if a rent be reserved 
 upon the lease, the widow, on endowment, will be entitled to her propor- 
 tionate share thereof, Boyd v. Hunter, supra ; Williams v. Cox, 3 Edw. 178. 
 
 Seizin must toe Beneficial— No Dower in Wife of Trustee. 
 
 The seizin of the husband must be a beneficial one, and, therefore, of 
 lands held by him in trust for another, his wife cannot have dower, Robin- 
 son V. Cadman, 1 Sumn. 121 ; Derush v. Brown, 8 Ohio 412 ; Cowman v. 
 HaU, 3 G. & J. 398 ; Thompson v. Murray, 2 Hill Ch. 204 ; Ocean Beach 
 Association v. Brinkley, 34 N. J. Eq. 438 ; Bartlett v. Gouge, 5 B. Mon. 
 152 ; Hopkinson v. Dumas, 42 N. H. 296 ; Coster v. Lorillard, 14 Wend. 
 314 ; and the fact that the widow had no knowledge of the trust at the 
 time of the marriage, will not change the case ; she is not in the position 
 of a purchaser without notice, White v. Drew, 42 Mo. 561 ; and the bare 
 legal title, where the husband is bound to convey to a vendee, will not sus- 
 tain dower, Aaron v. Bayne, 28 Ga. 107 ; Dean's Heir v. Mitchell's Heirs, 
 4 J. J. Mar. 451 ; Stevens v. Smith, Id. 64. 
 
 There will, accordingly, be no dower in lands affected with a resulting 
 trust in favor of another person, Powell v. Monson and Brimfield Manu- 
 facturing Co., 3 Mason 347 ; thus, where a guardian purchased land with 
 the money of his ward, it was held that dower did not attach in favor of 
 the guardian's widow, Gannaway v. Tarpley, 1 Cold. 572. 
 
 In Michigan, where resulting trusts have been abolished, it is held that 
 where title was taken by one, the principal part of the purchase-money 
 being paid by others, the grantee agreeing to make deeds to them when so 
 
Thompson v. Morrow. 321 
 
 required, the widow of the holder of the legal title could have dower in 
 the whole tract, irrespective of the amount of the purchase-money paid by 
 others than her husband, Newton v. Sly, 15 Mich. 391. 
 
 In New Jersey, it is enacted that the widow of a trustee shall have no 
 dower in the trust estate, and the trustee is empowered to convey the land 
 free of dower, Kev. of 1877, p. 324, pi. 25. 
 
 Trust Conjoined with Interest. 
 
 Where a trust is joined with an interest in the trustee, the wife may have 
 dower, iJofti/won v. Codman,! Sumn.121 ; Cockrill y. Armstronff,Sl Ark. 580. 
 
 A mere seizin as executor will not sustain dower, although the executor 
 is one of the devisees of the testator, Cockrill v. Armstrong, 31 Ark. 580. 
 
 Instances of Beneficial Seizin. 
 
 In Tevis v. Steele, 4 T. B. Mon. 339, L. and S. were partners in an in- 
 volved firm. S. agreed to assume L.'s indebtedness, and, in consideration 
 thereof, L. conveyed to S. a house, which S. undertook to convey to a 
 trustee, to secure the demands against the partnership and against S. per- 
 sonally. The conveyance was made ; the property was sold for the benefit 
 of creditors. The Court held that, inasmuch as the conveyance to S. was 
 in part to secure his own debts as well as those of L., there was such a 
 beneficial seizin as would entitle the widow of S. to dower. 
 
 In Prescott v. Walker, 16 N. H. 340, A. bought land in pursuance of an 
 agreement with J., that he would convey to him, on J.'s making certain 
 payments, including the price of the land and other debts. One P. paid 
 A., and received from him the land, subject to the same terms with refer- 
 ence to J. It was held that A. had such a beneficial seizin as would entitle 
 his widow to dower. 
 
 In Bowen v. Collins, 15 Ga. 100, where the vendor, holding a bond for 
 the purchase-money of certain land, after the death of the vendee, took 
 out letters of administration upon his estate, and sold the land as adminis- 
 trator, it was held that there was no such seizin as would support dower in 
 the vendee's wife, and that the conduct of the vendor, as administrator, did 
 not amount to such an admission as would estop him from denying such 
 seizin. 
 
 Seizin of Heir, where Lands are Assets for Debts. 
 
 In States where lands are assets in the hands of the executor or admin- 
 istrator for the payment of the decedent's debts, the heir has no seizin 
 
322 Thompson v. Morrow. 
 
 while they so remain ; and if he die before the payment of the outstanding 
 debts, it has been held that his wife can have no dower, Tate v. Jay, 31 
 Ark. 576. 
 
 Title of Mortgagee. 
 
 A title as mortgagee is not sufficient to sustain dower where the title is 
 not made absolute in the lifetime of the husband, Flack v. Long-mate, 8 
 Beav. 420. See New York, Rev. St. (1882), Pt. 2, Ch. 1, Tit. III., §7, 
 p. 2197 ; Arkansas, Eev. St., Ch. XLIX., §2216. 
 
 The wife of a mortgagee, after the land has become forfeited, may re- 
 cover dower therein at law, Weir v. Humphries, 4 Ired. Eq. 264 ; but where 
 a mortgagee entered for a foreclosure, and, instead of perfecting his title, 
 conveyed the land, by quit-claim, to a third person, it was held that mort- 
 gagee's wife was not entitled to dower, Foster v. Dwinel, 49 Me. 44. 
 
 A conveyance absolute upon its face, cannot be so changed by parole as 
 to destroy dower, Atwood v. Atwood, 22 Pick. 283. 
 
 Incomplete Title. 
 
 It sometimes happens that the land in which dower is claimed is held by 
 a title, which is incomplete and imperfect, either for want of some compli- 
 ance with a legal form or requirement, or for want of the performance of 
 an act by. the husband or by some third person, and the question then arises 
 whether there is sufficient seizin to give dower. 
 
 In Klutts v. Klutts, 5 Jones Eq. 80, a husband bought land at a master's 
 sale, and gave bond for the payment of the purchase-money, and died, it 
 was argued that the seizin was incomplete for the purposes of dower, be- 
 cause the sale was liable to be set aside by the Court before confirmation ; , 
 but the Court held otherwise, and decided that the widow was entitled to 
 dower, and that the purchase-money would have to be paid out of the per- 
 sonal estate, saying : " The power to set aside is not an arbitrary one, but 
 is regulated by law. ... It only adds a condition whereby the vendee's 
 equity may be defeated. It makes the vendee's equity a little more com- 
 plex, but does not materially change its nature." 
 
 In Sutton V. Jervis, 31 Ind. 268, A. made a deed to B., which deed was 
 never recorded, but was lost, destroyed, or misplaced. B. entered on the 
 land, and afterwards, by his consent, A. made a deed for the same to B.'s 
 son, it was held that there was sufficient seizia in B. to give his widow 
 dower as against a mortgage made by B. and his son, she not having 
 joined therein. 
 
Thompson v. Morrow. 323 
 
 In Fiehett v. Lyles, 5 So. Car. 275, it was held, generally, that the failure 
 of a husband to record a deed, whereby his title became invalid as against 
 a subsequent purchaser, would not so far defeat his seizin as to deprive his 
 widow of dower ; and in Tyson v. Harrington, 6 Ired. Eq. 829, that the 
 widow of one to whom a deed had been delivered, but from whom, before 
 it was recorded, it had been stolen, could in equity have her dower ; but 
 where a husband received a deed, and suffered it to become void, as against 
 subsequent purchasers, for want of recording, and, never having paid for 
 the land, returned the deed in order to discharge his obligation to pay, his 
 widow was reftised dower, Talhott v. Armstrong, 14 Ind. 254. 
 
 Where title depends upon the act of some third person, e. g., in the case 
 of the conveyance of Indian lands, on the approval of the President of the 
 United States, the title dates from the performance of the act, so far as 
 relates to giving rise to the inchoate right of dower, Parks v. Brooks, 16 
 Ala. 529 ; Shields v. Lyon, Minor 278. 
 
 Where a contract is made for land, and time is given for payment, and 
 the price is not entirely paid at the time of the husband's death, there is 
 no dower, unless the personal estate of the decedent is sufficient to pay the 
 balance, Kintner v. McRae, 2 Ind. 453 ; Greenbaum v. Austrian, 70 111. 591 ; 
 or unless the contract is subsequently carried out for the benefit of the 
 heirs, Stow v. Steel, 45 111. 328 ; but in Missouri, possession by a vendee, 
 either by a legal title, coupled with the payment of the greater part of the 
 purchase-money, or under a contract to purchase, will give dower, subject 
 to the vendor's lien, Hart v. Logan, 49 Mo. 47 ; Duke v. Brandt, 51 Mo. 
 221. 
 
 Where a creditor made a levy, and, within the time allowed by law to 
 the debtor to redeem the land, made a deed of quit-claim to a third person, 
 the creditor's widow was held not dowable, Foster v. Gordon, 49 Me. 54. 
 
 Title not formally Divested until after Marriage. 
 
 Where, before marriage, the husband had conveyed land, but the deed 
 was not rfecorded until afterwards, it was held that the husband was not so 
 seized during the coverture as to give dower to his widow. Blood v. Blood, 
 23 Pick. 80. In this case it was argued that the unrecorded deed was good 
 only against the grantor and his heirs, and the widow being neither, her 
 rights could not be affected by it. But the Court said, that being good 
 against the grantor and his heirs, the husband's seizin was thereby defeated, 
 and there remained nothing upon which to rest dower; and see Richardson 
 V. Skolfield, 45 Me. 386. 
 
 And even where the husband being an infant, before marriage, has made a 
 
324 Thompson v. Morrow. 
 
 sale by parole, and after marriage, being of fiiU age, makes a formal con- 
 veyance, it is so held, for the sale was only voidable, and not haviag been 
 actually avoided, there was no beneficial seizia during coverture, Oldham v. 
 Sale, 1 B. Mon. 76 ; Gully v. Ray, 18 Id. 107 ; and where the husband, 
 prior to marriage, had sold land, and given a bond to convey the same, it 
 was held that his wife could not have dower. Dean's Heir v. Mitchell's 
 Heirs, 4 J. J. M. 451 ; but in Madigan v. Walsh, 22 Wise; 501, where, be- 
 fore marriage, there was an oral agreement for a sale, unaccompanied by 
 any part performance, it was held that the wife's rights were in nowise 
 affected either by the contract or a subsequent performance of it, and that 
 she might maintain a suit to have a deed executed and delivered in pursu- 
 ance of the contract set aside as void. 
 
 It is also held that where, before marriage, a levy in execution has been 
 made upon the husband's land, and a sale is made thereunder, after the 
 marriage, the divestiture of seizia will relate, and the widow of the debtor 
 can have no dower. Brown v. Williams, 31 Me. 403 ; but the mere levy, un- 
 less followed by actual sale on execution, will not have the effect of divest- 
 ing the wife's dower, even if the land is sold for the purpose of paying the 
 debt for which the levy was made. Thus in Mayo v. Hamlin, 73 Me. 182, 
 a levy was made upon a man's property. After the levy he married. 
 Within the year allowed for redemption, the creditor indefinitely extended 
 the time for redemption. A conveyance of the land was made to a third 
 person, who paid the husband's debt and took a release to himself from the 
 creditor. It was held that the debtor's wife could have dower. 
 
 Conveyance in Fraud of Creditors before Marriage. 
 
 Where lands have been conveyed by the husband before marriage, in 
 fraud of creditors, but with no intent to defraud the intended wife, there 
 is a difference of opinion as to whether such a seizin is in the husband, on 
 the setting aside the fraudulent conveyance, as will support dower. That 
 it will, was held in Swaine v. Ferine, 5 Johns. Ch. 482 ; but see contra, 
 Whithead v. Mallory, 4 Cush. 138 ; King v. King, 61 Ala. 479 ; Gross v. 
 Lange, 70 Mo. 45. 
 
 Mortgage before Marriage. 
 
 Where a mortgage is made before marriage, the wife can have no dower 
 in the land mortgaged unless the incumbrance is discharged during the 
 coverture, Heth v. Coehe, 1 Kand. 344; but she will have dower in the 
 equity of redemption, supra. 
 
Thompson v. Morrow. 326 
 
 Duration of Seizin Necessary to Support Dower. 
 
 A very interesting question tas been mooted with reference to the dura- 
 tion of seizin necessary to give dower, and it has been maintained that 
 seizin " but for an instant " will not be sufficient to vest dower. An ex- 
 amination will,, however, show that the true principle of the cases which 
 have seemed to sustain the position above mentioned, is that dower will 
 not be given when, by the same transaction, the premises are vested ia the 
 husband and taken out of him — where he is the mere conduit-pipe of the 
 title. 
 
 It is true. Coke, Co. Lit. 31 b, says, "Also of seizin for an instant a 
 woman shall not be endowed." But even in England, the rule is by no 
 means so general as thus stated ; for it is said by Blackstone, that if the 
 land abides in the husband for a single moment, the wife shall have dower, 
 2 Blackst. Com. 132 ; and see Cro. Eliz. 503, Broughton v. Randall, the 
 famous case of the father and son being hanged from one cart, and where 
 the son's legs having been seen to quiver after the death of the father, the 
 Court held that there was sufficient seizin in the son to give his widow 
 dower in lands descended from the father. 
 
 Mr. Justice Coleridge, in his note to Blackstone, supra, says : " In fact, 
 the space of time is no essential ingredient in the case ; it is the interest of 
 the husband." In this country, it has been held that if the lands vest iff 
 the husband, beneficially, though but for an instant, the right of dower 
 attaches, iStanwood v. Dunning, 14 Me. 290 ; Edmondson v. Welsh, 27 Ala. 
 578 ; McCauley v. Grimes, 2 G. & J. 318 ; McClure v. Harris, 12 B. Mon. 
 261 ; Tevis v. Steele, 4 T. B. M. 339 ; Fontaine v. Boat-men's Saving Ins., 57 
 Mo. 552 ; and this as against strangers, and against all claiming under the 
 husband, even if his seizin were tortious, Randolph v. Doss, 3 How. (Miss.) 
 205 ; at the same time, the cases hold that where one receives title merely 
 to transfer it to another, no dower will arise from such seizin, Bartlett v. 
 Gouge, 5 B. Mon. 152 ; Wooldridge v. Wilkins, 3 How. (Miss.) 360 ; the 
 character as well as the duration of the seizm is to be looked to, Douglass 
 V. Dickson, 11 Rich. Law 417. 
 
 Some cases, however, in most, if not all, of which the result arrived at 
 can be sustained upon other grounds, have put the deprivation of the widow 
 of her dower on the ground of instantaneous seizin ; see Stow v. Tifft, 15 
 Johns. 458 ; Ounningham v. Knight, 1 Barb. 399 ; Bullard v. Bowers, 10 
 N. H. 500. Bullard v. Bowers is sustainable on the ground that the ques- 
 tion was between a dowress and a mortgagee in a purchase-money mortgage, 
 and the authority of the New York cases is much weakened by the strong 
 dissent of Thompson, C. J., in Stow v. Tifft, and by the case of Mills v. 
 Van Voorhies, 20 N. Y. 412, in which Selden, J., considered Stow v. Tiffl 
 
326 Thompson v. Morrow. 
 
 as having no foundation in principle, but merely as deciding that the 
 ■widow's rights were not paramount to those of the mortgagee. 
 
 The case of Adams v. Bill, 29 N. H. 202, was, however, not a case of a 
 purchase-money mortgage, and the rule of instantaneous seizin was followed. 
 In that case the facts were as follows : P. conveyed to A. lands in Lancaster 
 for the price of $2200 ; a week later A. conveyed the same lands to W., and 
 received from W. a conveyance of land ia Greenland, which A. at once 
 mortgaged to P. to secure the $2200. Gilchrist, G. J., after citing Co. 
 Lit. 31 b, and Ameotts v. Catherich, Cro. Jac. 615, said : " In the present 
 case the mortgage was not made to secure the purchase-money of the 
 Greenland lands, but of the lands in Lancaster; stUl, the two deeds would 
 seem to constitute but one transaction ; the estate passes out of him at the 
 same instant that he receives it. Stow v. Tifft, 15 Johns. 458. The hus- 
 band is not beneficially seized so as to entitle his wife to dower as against 
 the mortgagee, and Kent says this conclusion is agreeable to the manifest 
 justice of the case. There certainly is as much justice in holding that she 
 is not so entitled against the mortgagee, though the mortgage was not given 
 to secure the purchase-money of that particular estate. If there be only 
 an instantaneous seizin where the mortgage is given to secure the purchase- 
 money of the mortgaged land, the seizin is equally instantaneous here, for 
 it can make no difference what particular debt the mortgage secures." 
 
 Possibly the most reasonable statement of the law upon this subject is 
 that of Aechee, J., in McCauley v. Grimes, 2 G. &. J. 318: "Perhaps 
 there is no general rule' that in cases of instantaneous seizin the widow shall 
 or shall not be entitled to dower. This must depend as well upon the char- 
 acter of the seizin as its duration. When a man has the seizin of an estate 
 though for an instant, beneficially, for his own use, his widow shall be en- 
 dowed ; when the husband is a mere instrument for passing the estate, 
 although there may be an instantaneous seizin, the widow shall not be en- 
 dowed." 
 
 Purchase-Money Mortgage. 
 
 Where a man purchases land, and at the same time, or as a part of the 
 same transaction, gives a mortgage for the purchase-money, the widow of 
 the purchaser will not be entitled to dower as against the purchase-money 
 mortgagee. This rule has sometimes been held to be the result of the doc- 
 trine of instantaneous seizin, but a much better foundation for it is in the 
 superior equity of the mortgagee, Eslava v. Lepretre, 21 Ala. 504 ; Boynton 
 V. Sawyer, 35 Id. 497 ; Bogie v. Rutledge, 1 Bay 312 ; Trustees of Frasier v. 
 Centre, 1 McCord Ch. 279 ; McCauley v. Grimes, supra; Nottingham y.Cal- 
 
Thompson v. Moeeow. 327 
 
 vert, 1 Ind. 527; Bimie v. Maris, 29 Ark. 591 ; Thomas v. Hanson, 44 Iowa 
 651 ; Hinds v. Ballou, 44 N. H. 619 ; George v. Covper, 15.W. Va. 666 ; 
 Oreeelius v. Horst, 4 Mo. App. 419 ; Griggs v. Smith, 7 Hals. «2 ; Grafts v. 
 Grafts, 2 McCord 54 ; Seehright v. Moore, 4 Leigh 30 ; WeMi v. Buchins, 
 9 Ohio St. 331; iiands v. Kendall, 15 Ohio 671 ; GVeme v. Greene, 1 Id. 
 535 ; and see Brown v. Duncan, 4 McCord 346. 
 
 In Georgia, where the code (1867, §§ 1753, 1759) and the revision of 
 1873 (Pt. 2, Tit. 2, Ch. 1, Art. 2, §1769) provided that no lien, though 
 assented to the wife, which was placed upon the property by the hus- 
 band, should affect the wife's dower, it was held in Slaughter v. Gulpepper, 
 44 Ga. 319, that a- purchase-money mortgage would not take precedence 
 of dower. McCay, J., in delivering the opinion of the Court, saying : 
 " But section 1759 of the code provides that no lien created by the hus- 
 band shall in any manner interfere with the dower. Was this mortgage 
 lien created by the husband? Without doubt it was. How then can we 
 give it in any manner preference to the dower? What right have we 
 to add an exception to the statute, especially when it contains such posi- 
 tive language ? How can we give it a preference ? " 
 
 After this decision, the law of Georgia was changed by the Act of Feb- 
 ruary 24, 1875, § 1, Laws, 1875, p. 100, which enacted that when a pur- 
 chase-money mortgage was given, the widow should have no dower until 
 the purchase-money was paid. 
 
 It is expressly provided by statute tha:t there shall be no dower as 
 against a purchase-money mortgage in Illinois, Rev. St., Ch. 41, § 4, p. 425 ; 
 Arkansas, Rev. St., Ch. XLIX., § 2214 ; Michigan, Comp. Laws, Vol. 2, 
 Tit. XXII., Ch. CLI., §4269, p. 1359 ; Wisconsin, Rev. St., Pt. 2, Tit. 20, 
 Ch. 98, §2163, p. 626; Nebraska, Comp. St., Ch. 23, §4, p. 212; New 
 York, Rev. St. (1882), Pt. 2, Ch. 1, Tit. 3, §3, p. 2197; Oregon, Laws, 
 Ch. 17, Tit. 1, § 2 ; North Carolina, Battle's Rev., Ch. 117, § 4, p. 839 ; and 
 see West Virginia, R. S., Vol. 1, Ch. 70, § 3, p. 499, and Virginia, Code, 
 Tit. 31, Ch. 106, §3, p. 853. 
 
 The conveyance and mortgage, in order to fall within the rule, need not 
 be of the same date, or executed at the same time ; it is sufficient if they 
 are delivered at the same time, Fontaine v. Boatmen's Savings Institution, 
 57 Mo. 552 ; and it seems to be essential that there should be this simulta- 
 neous delivery, and that it be to accomplish the agreed purpose of securing 
 the payment of the purchase-money, Gammon v. Freeman, 31 Me. 243 ; Baw- 
 lings V. Lovmdes, 34 Md. 639 ; Mayhurry v. Brien, 15 Pet. 21. "VVhere the 
 conveyance and mortgage bear different dates of acknowledgment, there is 
 no presumption of simultaneous delivery, Rawlings v. Lowndes, supra; Hen- 
 derson V. Mayor and Council of Baltimore, 8 Md. 352. 
 
328 Thompson v. Moreow. 
 
 There may be circumstances wHch will induce a Court of Equity to re- 
 gard instruments not executed or delivered on the same day as parts of one 
 transaction, ?o as to bring them within the rule refusing dower. Thus in 
 Wheatley's Heirs v. Calhoun, 12 Leigh 264, W. and C. agreed to purchase 
 land, and to divide the same between them in a certain proportion. They, 
 accordingly, bought land from M. and G., agreeing to pay for it in certain 
 instalments, and to give a deed of trust for the price ; they took a convey- 
 ance, executed a bond for the price, and afterwards executed a deed of 
 trust therefor; neither the wife of C. nor the wife of W. joining in the deed 
 of trust. The Court held the deed of trust paramount to the dower of the 
 wives, on the ground that, although given later than the conveyance, it 
 was in pursuance of the same agreement by which it was given, and was 
 part of the same transaction. 
 
 In pursuance of a prior agreement, the mortgage may be made to a third 
 person, who furnishes the purchase-money, to secure him repayment, and 
 as against him the widow cannot have dower, Clarh v. Monroe, 14 Mass. 351 ; 
 King v. Stetson, 11 Allen 407 ; Smith v. Stanley, 37 Me. 11 ; Glenn v. Glarh, 
 53 Md. 580 ; and it is held, generally, in Kettle v. Vandyek, 1 Sand. Ch. 76, 
 that the mortgage may, by the assent of the vendor, be made to a third 
 person, and retain all the privileges with reference to dower of a pur- 
 chase-money mortgage ; but iu Jameson v. Garden, 29 111. 199, the Supreme 
 Court of Illinois held that, under the law of that State, a mortgage made 
 to a third person, to secure money borrowed from him to pay for the land 
 conveyed, and delivered on the same day as that on which the deed for the 
 land was received, was not a purchase-money mortgage. If this case can 
 be upheld, it must be on the ground that it can be distinguished from the 
 foregoing cases by the fact that the mortgage did not appear to have been 
 given in pursuance of any prior arrangement between the parties to the 
 sale, and so, perhaps, was not part of the one transaction ; and this view 
 of the case is strengthened by the decision in Smith v. McCarty, 119 Mass. 
 519, wherein it was held that a mortgage, executed on the same day that 
 a deed was received, to a third person, to secure the payment of a note 
 given for money borrowed to pay for the land, is not necessarily such a 
 mortgage as will have precedence of dower, and that it must be shown that 
 the deed and mortgage are parts of the same transaction. 
 
 A later mortgage cannot be substituted for the purchase-money mort- 
 gage and have the like effect, although it is given to secure the payment 
 of money borrowed to pay off the purchase-money mortgage, and that fact 
 is recited in the new mortgage, Calmes v. McGracken, 8 So. Car. 87. 
 
 In Gaffe v. Ward, 25 Me. 101, 0. conveyed toW., and received a purchase- 
 money mortgage ; afterwards becoming indebted to G., upon a promissory 
 
Thompsok v. Moeeow. 329 
 
 note, he agreed with W. to receive the note in part payment for the land. 
 W. then, by agreement with G., procured the discharge of the mortgage, 
 and gave G. a new one for the amount of the note. It was held that G. 
 did not become subrogated to the rights of the purchase-money mortgagee, 
 and the widow of W., not having joined in the mortgage, was entitled to 
 her dower. 
 
 The scope of the purchase-money mortgage cannot be extended so as to 
 cover subsequent debts to the prejudice of the widow's dower, Greer v. 
 Chester's Seirs, 7 Humph. 77. 
 
 It is to be borne in mind that the rule, that where a purchase-money 
 mortgage exists there is not a sufficient seizin to sustain dower in the mort- 
 gagor's widow, applies only in favor of the mortgagee and those having his 
 title; as against all others the right of dower is in full force, and is not in 
 the least affected by the mortgage. Whitehead v. Middleton, 2 How. (Miss.) 
 692 ; Young v. TarheU, 37 Me. 608. 
 
 Dower in Surplus of Mortgaged Property. 
 
 The widow may have dower in the surplus of property on which is a 
 mortgage superior in right to her dower, Calver v. Harper, 27 Ohio St. 464 ; 
 Matthews v. Dunjee, 45 Barb. 69 ; Brown v. Duncan, 4 McCord 346 ; and 
 see Illinois Eev. St. (1880), Ch. 41, § 6, p. 425 ; Virginia, Code, Tit. 31, 
 Ch. 106, §2, p. 853; West Virginia, Rev. St., Vol. 1, Ch. 70, §3, p. 4-99; 
 Michigan, Comp. Laws, Vol. 2, Tit. XXII., Ch. 151, § 4273, p. 1360 ; Wis- 
 consin, R. S., Pt. 2, T. 20, Ch. 98, § 2164; New York, Rev. St. (1882), P. 
 2, C. 1, T. 3, § 6, p. 2197 ; Nebraska, Comp. St., Ch. 23, § 5, p. 212 ; Oregon, 
 Ch. 17, T. 1, § 5, p. 584 ; and also in the proceeds of an equitable title 
 after satisfying the vendor's lien, Harrison v. Griffith, 4 Bush. 146. 
 
 Right of Exoneration as against Personal Estate of the Hus- 
 band. 
 
 The widow has a right, as against the personal estate of her husband, to 
 have her dower interest exonerated, Caroon v. Cooper, 63 N. C. 386 ; Jenni- 
 son V. Hapgood, 14 Pick. 345 ; Mantz v. Buchanan, 1 Md. Ch. 202 ; Pech- 
 ham V. Hadwen, 8 R. 1. 160 ; Campbell v. Campbell, 30 N. J. Eq. 415; Buffin 
 V. Cox, 71 N. C. 253 ; Henagan v. Harllee, 10 Rich. Eq. 285. 
 
 Deed made on Day of Marriage and Prior thereto. 
 
 Where on the day of his marriage, and before its solemnization, the hus- 
 band has made a deed by which he has conveyed his property, the wife 
 28* 
 
330 Thompson v. Morbow. 
 
 will be entitled to dower therein, for the two essentials, coverture and seizin, 
 existed upon the same day, Stewari^s Lessee v. Stewart, 3 J. J. Mar. 48. 
 
 Deed in Fraud of Intended Wife will not Prevent Dowable 
 Seizin. 
 
 A deed made by the husband shortly before marriage, without the knowl- 
 edge of his intended wife, and with intent to defeat her dower, will not 
 prevent his being, at least constructively, seized so as to give his wife 
 dower, Littleton v. Littleton, 1 D. & B. 327 ; Cranson v. Cranson, 4 Mich. 
 230 ; and such a deed will be set aside in the husband's lifetime, Bahcoch v. 
 Babcock, 53 How. Pr. 97 ; or even after his death, Brown v. Branson, 35 
 Mich. 415; Baird v. Steame, 39 Leg. Int. 374; S. C. 12 W. N. C. 205. 
 But it seems that such a deed must be made with reference to a particular 
 marriage, or it will be upheld as against dower ; thus where, long before 
 marriage, a man made a deed of all his property in trust, to dispose of 
 the same for the support of the grantor, and on his death to account for 
 what remained to the heirs at law, as under the intestate acts, and after- 
 wards married, it was held that the widow could not have dower, Knieher- 
 haeher v. Seymour, 46 Barb. 198. 
 
 But it seems that where a particular marriage is contemplated, the fact 
 that a formal engagement of marriage has not been entered into will not 
 render valid a deed made secretly with reference thereto. In a recent case 
 in the Common Pleas of Philadelphia, Baird v. Steame, 39 Leg. Int. 374, 
 the plaintiff filed a bill to set aside a deed made by her deceased husband, 
 under the following circumstances. The husband, before marriage to the 
 plaintiff, was a widower with three children; he paid attention to the plain- 
 tiff, and announced to his friends his intention of marrying her. Three or 
 four days before any actual engagement of marriage had been entered into, 
 he made a deed of his realty in trust for himself for life, and to be con- 
 veyed to his children by his first wife, upon his death, pie afterwards 
 married the plaintiff. The evidence showed that, during the courtship, the 
 plaintiff had been made aware of the circumstances of her lover, and that at 
 the time of the marriage she was ignorant of the conveyance in trust. The 
 Court regarded the case as falling within the definition of a fraud upon the 
 wife, and set aside the conveyance as against her. Thayee, P. J., in deliv- 
 ering the opinion of the Court, said : " Equity will always set aside deeds 
 and settlements secretly made in contemplation of marriage, where their 
 effect is in derogation of the just expectation of one of the parties to the 
 contract, and of the obligations about to be assumed in that relation. . . . 
 
Thompson v. Moeeow. 331 
 
 It is not a question of actual fraud, but whether the effect of the convey- 
 ance operates as a fraud upon the just expectations of the party who is 
 wronged, Robinson v. Buck, 21 Sm. 392 [71 Pa. St.] ; Duncan's Appeal, 7 
 "Wr. 67 [43 Pa. St.] ; Beet v. Ferguson, 3 Grant's Cases 289. It is not 
 necessary in the present case to find that actual fraud was intended either 
 by James Baird or by the trustees who procured him to execute this deed. 
 The weight of the evidence appears to us to be that it was not. Neverthe- 
 less, the deed made by James Baird, under the circumstances, was a fraud 
 in law. While a reasonable settlement upon the children of a former mar- 
 riage would have been, under the circumstances, only a just and proper 
 provision, it cannot be doubted that the secret conveyance by James Baird 
 to the trustees of the bulk of his property, on the eve of his marriage with 
 the plaintiff, was a fraud in law upon her just expectations and the conju- 
 gal rights which were about to be acquired by her." 
 
 A man may, without being guilty of a fraud upon his intended wife, 
 provide for children of a former marriage, and an advancement to a son, 
 while a second marriage was in contemplation, has been upheld as a valid 
 conveyance, Baker v. Chase, 6 Hill 482. 
 
 The deed, made iu fraud of the wife, is void only as against her, and 
 cannot be avoided by the grantor's heirs, Rowland v. Rowland, 2 Sneed 
 543. 
 
 Dying in Possession equivalent to Dying Seized. 
 
 Where the law requires that to entitle the wife to dower the husband 
 must die seized, there will be a sufficient seizin if the husband die in pos- 
 session, although the land was subject to a judgment obtained against the 
 husband before marriage. Green v. Causey, 10 Ga. 435 ; or the husband had 
 agreed to sell and had given a bond for the title, the purchase-money being 
 unpaid, Day v. Solomon, 40 Ga. 32 ; and although the husband be insol- 
 vent, Allen V. Allen's Admr., 4 Ala. 556 ; and where a husband conveyed, 
 in his lifetime, by a deed absolute upon its face, but which was in reality a 
 mortgage, his widow was held entitled to dower, Turhemlle v. Gibson, 5 
 Heisk. 565 ; and a husband is held to have died seized of an equity of re- 
 demption, which, although forfeited, had not been foreclosed at the time of 
 his death. Fish v. Fish, 1 Conn. 559 ; but where a sheriff's sale of land of 
 the husband has been made at a time prior to his death, and the statutory 
 period for redemption has expired, and the sheriff has neglected to make a 
 deed to the purchaser, there is no such dying seized as will sustain dower 
 in the execution debtor's widow, Rose v. Rose, 6 Heisk. 533, overruling 
 Earrell v. Harrell, 4 Cold. 377. 
 
332 Thompson v. Morrow. 
 
 Dower— How Defeated or Barred— By Defeat of Husband's 
 Seizin. 
 
 Dower is defeasible by the occurrence of anything which would defeat 
 the husband's seizin ab initio, or by the enforcement of any claim or in- 
 cumbrance which existed prior to the marriage, or to the title of the hus- 
 band, Strihlong v. Eoss, 16 111. 122 ; NoHhcut v. Whipp, 12 B. Mon. 65 ; 
 Waller v. Waller's Admx., 33 Grat. 83 ; as when the estate of the husband 
 is evicted by title paramount, as by the enforcement of a mortgage made 
 before marriage, Fox y. Pratt, 27 Ohio St. 514; Calver v. Harper, Id. 464, 
 or subject to which the husband took this title, Cheek v. Waldrum, 25 Ala. 
 152 ; or of a judgment antedating the marriage, Trustees of Poor of Queen 
 Anne's County v. Pratt, 10 Md. 5 ; Robins v. Robins, 8 Blackf. 174 ; Sarv- 
 ford V. McLean, 3 Paige 117. The judgment must, however, antedate the 
 marriage, for since, except in a few States noted hereafter, the claim of 
 dower is superior to the rights of creditors. Colder v. Bull, 2 Eoot 50; 
 Crocker v. Fox, 1 Id. 227 ; Cavender v. Smith, 8 Iowa 360 ; it is not suffi- 
 cient that the debt existed before marriage if the judgment were not recov- 
 ered until after it. Griffin v. Reece, 1 Harring. 508 ; a judgment, evicting 
 the husband's estate, obtained by collusion, procurement, or covin, will not 
 affect the wife's right of dower ; see Kentucky, Gen. St., Ch. 52, § 8, p. 530 ; 
 Ohio, R. L., Pt. 2, T. 4, Ch. 3, § 4193 ; Illinois, Eev. St., Ch. 41, § 16, p. 427 ; 
 New Jersey, Rev. of 1877, p. 321, pi. 5 ; Missouri, Rev. St., Vol. 1, Ch. 29, 
 § 2187, p. 363 ; Arkansas, Rev. St., Ch. XLIX., § 2225 ; West Virginia, 
 Rev. St., Ch. 70, § 13, p. 502 ; Virginia, Code, Tit. 31, Ch. 106, § 13, p. 855. 
 Where a sale of land is set aside by a decree of Court, the dower of the 
 vendee's wife is defeated. Waller v. Waller's Admx., 33 Grat. 83. 
 
 Exercise of Big^Iit of Eminent Domain. 
 
 Dower is also barred where the State, by virtue of the right of eminent 
 domain, takes possession of the land in which it is claimed, Moore v. City of 
 New York,'4: Sand. Sup. Ct. 456, S. C, on appeal, 8 N. Y. 110 ; French v. 
 Lord, 69 Me. 537 ; but not by a deed of the husband, dedicating the prop- 
 erty to public uses, Nye v. Taunton Branch R. R. Co., 113 Mass. 277. In 
 the case of Ghvynne v. City of Cincinnati, 3 Ohio 24, however, the Supreme 
 Court of Ohio refused to recognize the distinction adverted to above, and 
 held dower barred where land had been devoted to the public use, as a 
 market, by contract between the owners and the public. The distinction, 
 however, seems a well-founded one ; for while the public, acting in its 
 sovereign capacity, may undoubtedly override private rights (except so 
 • far as it has limited itself by its ftindamental law), yet it can only do so 
 
Thompson v. Moeeow. 333 
 
 when it acts in its sovereign capacity, and not when it chooses to deal with 
 a private individual by way of contract, or to accept from him a donation 
 of land ; when it so acts, it acts rather as a private party to a contract, 
 and is subject to the rules governing such a party. 
 
 Where the wife's right of dower is extinguished by the exercise of the 
 right of eminent domain, the better opinion appears to be that equity will 
 protect the wife's interest by securing to her that portion of the fund 
 awarded to the husband in compensation for the land taken, which prop- 
 erly represents her inchoate dower. This is the conclusion arrived at by 
 the Court of Errors and Appeals of New Jersey, and announced in a very 
 interesting opinion by Reed, J., in Wheeler v. Kirtland, 27 N. J. Eq. 534. 
 The Court fully recognizes the law to be that the right" of dower cannot be 
 asserted against the public interest, and that when once properly con- 
 demned and taken, the land in its totality, with all interests and estates 
 therein, passes absolutely to the public, and that no deduction should be 
 made in an assessment of value for the worth of the wife's inchoate dower, 
 but rests the rule solely on the principle of the superiority of the public to 
 all private interests, and criticises and condemns the ground taken in Moore 
 V. Oity of New York, supra, in reaching the same conclusion, viz., that " the 
 wife had no interest in the land, and the possibility she did possess was in- 
 capable of being estimated with any degree of accuracy." 
 
 The doctrine of Moore v. City of New York is not sustained even in its 
 own State by the later authorities ; see Simar v. Canaday, 53 N. Y. 298, 
 and the remarks of Ingeaham, P. J., in The Matter of the Extension of 
 Central Park, 16 Abb. Pr. 69. 
 
 Dower not aflPected by Act or Conveyance of the Husband 
 during' Coverture. 
 
 As a rule, no act, conveyance, deed, or incumbrance of the husband alone 
 during the coverture, can affect the right of dower, Rank v. Hanna, 6 Ind. 20. 
 
 The husband cannot convey lands so as to bar the wife's dower, unless 
 she assent in due form. This, which is the common law, is the subject of 
 express enactment in some of the States. See Missouri, Eev. St., Ch. 29, 
 § 2197, p. 365 ; Illinois, Rev. St. (1880), Ch. 41, § 16, p. 427 ; Arkansas, 
 Rev. St., Ch. XLIX., §2225. 
 
 And the rights of the wife are not affected by the fact that the purchaser, 
 against whom dower is claimed, bought the property in ignorance that any 
 claim for dower had attached thereto, and gave a full price therefor, Dick 
 v. Doughten, 1 Del. Ch. 320. 
 
334 Thompson v. Moeeow. 
 
 Effect of ConTeyance in States where Dower is given only 
 where Husband Died Seized. 
 
 The law is otherwise in those States in which the widow is dowable only 
 of lands of which the husband died seized ; but even there his right to dis- 
 pose of property in which his wife has a possibility of dower is not abso- 
 lutely unfettered ; and while he may, so long as he acts in good faith, sell 
 or dispose of his property at his will, yet he will not be permitted, by a 
 voluntary conveyance, or one ia the whole or in greater part a gift, made 
 with intent to defeat his wife's dower, to accomplish that object ; but the 
 widow, aa against such a conveyance, will be entitled to dower, Thayer v. 
 Thayer, 14 Vt. 107 ; Den ex d. Hughes v. Shaw, M. & Y. 323 ; Jigrgitts v. 
 JiggiUs, 40 Miss. 718 ; Davis v. Dams, 6 Mo. 184 ; Tmher v. Tucker, 32 Id. 
 464, 29 Id. 350. 
 
 In Thayer v. Thayer, the Court considered and dissented from Stewart v. 
 Stewart,5 Conn. 317, in which the Supreme Court of Errors of Connecticut 
 had held that until the death of the husband the wife had no such right to 
 her dower that it could be the subject of a fraud. A deed, even, for which 
 full consideration has been given, has been held void as to the widow where 
 the grantee knew that the object of the deed was to deprive her of her 
 dower. Brewer v. Connell, 11 Humph. 500 ; but a conveyance on good con- 
 sideration only will not necessarily be held void, no intent to bar dower 
 having been proved, Mcintosh v. Ladd, 1 Humph. 459 ; Tate v. Tate, 1 D. 
 & B. Eq. 22. And see, upon this subject, the statutes of Vermont, T. 15, 
 C. 114, § 2228 ; and Tennessee, Pt. 2, T. 3, Ch. 3, § 2406. 
 
 While the husband can bar his wife's dower by a bona fide conveyance, 
 yet such conveyance will not be assumed, and the husband cannot, by 
 merely neglecting to bring suit for lands to which he was entitled until his 
 claim is barred by the statute of limitations, deprive his wife of her dower, 
 Hart V. MeCollum, 28 Ga. 478 ; and the widow's right is not defeated by a 
 parol sale and delivery of possession, although the vendee has paid part 
 of the price, for the widow's equity in superior, and the vendee will not 
 even be given a lien on the property, but will stand as an ordinary creditor, 
 Williams v. Dawson, 3 Sneed 316. 
 
 Where, however, a conveyance has been made during the husband's life- 
 time, but is not registered until after his death, the registration -frill relate 
 so as to affect the widow's right of dower, Norwood v. Marrow, 4 Dev. & B., 
 Law 442. 
 
 In Connecticut, it is held that a tenant in tail may bar his wife's dower 
 by a conveyance in fee, although such conveyance is not good against the 
 heir in tail, and vests but a base fee, determinable upon the grantor's death, 
 in the grantee, Whiting v. Whiting, 4 Conn. 179. 
 
Thompson v. Morrow. 335 
 
 It was formerly held in Tennessee that a conveyance in mortgage so 
 vested the fee in the mortgagee that the dower of the mortgagor's wife 
 would be barred, Kuhn v. Feiser, 3 Head 82 ; Melver v. Cherry, 8 Humph. 
 713; this was under the North Carolina act of 1784; but see Den ex d. 
 Taylor v. Fen and Parsley, 3 Hawks. 126 (which was decided under the 
 same act) ; but by the Act of 1855-6, Code, § 2399, dower is given where 
 the husband, mortgagor, dies before foreclosure and sale, Boyer v. JBoyer, 
 1 Cold. 12 ; Tarpley v. Gannaway, 2 Id. 246 ; Harrell v. Rarrell, 4 Id. 377 ; 
 this act, however, does not extend to land mortgaged or conveyed in trust 
 before marriage, Boyer v. Boyer, supra. 
 
 Mortgage by Husband. 
 
 A mortgage made by the husband and not joined in by his wife, will be 
 of no effect against her dower, Hinchman v. Stiles, 1 Stock. 361 ; Hayes v. 
 Whitall, 2 Beas. 241 ; and her rights are not affected if, without her com- 
 plicity, the husband represented himself to the mortgagee as unmarried, 
 Westfall V. Hintze, 7 Abb. N. C. 236 ; and after her inchoate right attaches, 
 the wife is not bound by the recitals or admissions of her husband ; hence, 
 where, a few weeks after receiving a deed for certain land, the husband 
 executed a mortgage, in which his wife did not join, reciting therein that 
 it was a purchase-money mortgage, it was held that the recitals could not 
 be given in evidence to show that it was such a mortgage, and, as such, 
 superior in right to dower, Tihhetts v. Langley Manuf. Co., 12 So. Car. 465. 
 
 The foreclosure of a mortgage, in which the wife did not join, will not 
 affect her io-wer,Oold v. Byan, 14 111. 53; MoMahon v. Rimell, 17 Fla. 698; 
 even if she is made a party to the foreclosure proceedings, unless the dower- 
 right is expressly put in issue, Mooney v. Maas, 22 Iowa 380 ; and the mere 
 allegation in a bill, that the widow claims an interest, without referring to 
 or describing the dower, and making the widow a party to the suit, as a 
 devisee, will not put the right in issue so as to render the dower barred 
 by a decree, Lewis v. Smith, 11 Barb. 152, on appeal 9 K Y. 502 ; and see 
 Wade V. MiUer, 32 N. J. Law 296. 
 
 The law in Pennsylvania upon this point is different ; there the mort- 
 gage of the husband alone is good as against the wife, and its enforcement 
 will effectually defeat her dower. This was settled law in that State at an 
 early day, for in Seott v. Groasdale, 1 Yeates 75, S. C, 2 Dallas 127, de- 
 cided in 1791, Chief-Justice McKean, referred to a decision to the same 
 effect, some thirty years back, and accounted for it on the general princi- 
 ple of the policy of Pennsylvania in rendering all lands subject to the 
 owner's debts ; and see Killinger v. Smith, 6 S. & K. 534. 
 
336 Thompson v. Moeeow. ' 
 
 The husband, however, will not be allowed to use his power for the mere 
 purpose of defrauding his wife, under cover of the forms of law. Thus 
 where a husband mortgaged his land, and suifered a judgment to be entered 
 on a scire facias on the mortgage, for the purpose of defeating his wife's dower, 
 and the mortgagee had constructive notice of the wife's right, it was held 
 that, on an appeal to the equitable power of the Court, the wife would be 
 entitled to have the judgment opened and be let into a defence to the ex- 
 tent of her dower, even after her husband's death, McClurg v. Schwartz, 6 
 W. N. C. 361 ; S. C. 87 Pa. St. 521. 
 
 ^Effect of Judgment and ^Execution against Husband. 
 
 Dower will not be affected by a judgment obtained against the husband 
 after marriage, Stuart v. Beard, 4 Md. Ch. 319 ; or by a sale on an exe- 
 cution thereunder, Waheman v. Roache, Dudley 123 ; Harrison v. Eldridge, 
 2 Hals. 392; Griffin v. Reeee, 1 Harring. 508; Barker v. Parker, 17 Mass. 
 564; Fleeson v. Nicholson, Walk. (Miss. Eep.) 247 ; Pense v. Hixon, 8 Iowa 
 402 ; although the property sold is subject to a mortgage in which the wife 
 had joined, and the proceeds of the sale were applied to the satisfaction of 
 the said mortgage, Taylor v. Fowler, 1^ Ohio 567. 
 
 In North Carolina, during the period in which dower was given only in 
 the lands of which the husband died seized, it was held that where a levy 
 and sale upon execution took place in the lifetime of the husband, and 
 the deed was delivered after his death, the delivery would relate and the 
 widow's dower would be defeated. Den ex d. Davidson v. Frew, 3 Dev. 
 Law 3 ; but where the execution issued only in the lifetime of the hus- 
 band, the widow could have her dower, Frost v. Etheridge, 1 Dev. Law 30, 
 overruling Hodges v. McCahe, 3 Hawks 78. 
 
 In Tennessee it is held, that where, after a levy upon the land of the 
 husband, he dies, the wife may have her dower, Rutherford v. Read, 6 
 Humph. 423 ; and where a levy and sale take place in the lifetime of the 
 husband, who dies before the delivery of the sheriff's deed, a delivery of 
 the deed after the husband's death will not relate so as to divest the dower, 
 Harrell v. Harrell, 4 Cold. 377. 
 
 In Georgia the right of dower is superior to a judgment, even where the 
 judgment has been obtained before the marriage, Simmons v. Latimer, 37 
 Ga. 490. 
 
 In Pennsylvania, the sale of the land at sheriff's, or other judicial sale, 
 will bar dower. Directors of the Poor v. Royer, 43 Pa. St. 146 ; and that 
 even where the debt was not a lien at the time of the husband's death, and 
 the judgment upon which the execution issued was obtained subsequently, 
 
Thompson v. Moreow. 337 
 
 Id. ; for, said Woodward, J., "A widow's dower must wait on the payment 
 of debts, whether lien or no lien ; she is dowable of only what remains of 
 the husband's estate after the payment of his debts ; not after the payment 
 of liens merely, but debts. Debts of a decedent, as such, are liens; though, 
 so far as dower is concerned, this is immaterial, for she is no more effectu- 
 ally postponed to liens than she is debts." 
 
 In accordance with the Pennsylvania policy of subjecting lands to debts, 
 doyyer will be barred by a sale under a testamentary power to pay debts, 
 Hannum v. Spear, 1 Yeates 553 ; Mitchell v. Mitchell, 8 Pa. St. 126. 
 
 In Iowa, a sale of the husband's lands, on execution or other judicial 
 sale, will bar her right to the one-third of the land in fee, which is in 
 reality a dower. Annotated Sts. (McClain 1880), Tit. XVI„ ch. 4, § 2440, 
 p. 653 ; but the wife will be protected against a fraudulent contrivance to 
 deprive her of dower by means of a sheriff's sale, Buzick v. Buzick, 44 
 Iowa 259. 
 
 In Indiana, under the Act of March 11, 1875, 1 Kev. St. (1876), p. 554, 
 where a judicial sale of the husband's realty is made, and the Court does 
 not direct the wife's inchoate interest to be barred thereby, her interest is 
 not only saved, but the wife will become entitled to the possession of her 
 one-third of the land sold, as though the husband were dead, Jachnan y, 
 Nowling, 69 Ind. 188 ; Ketehum v. Schicketanz, 73 Id. 137 ; and the same 
 applies in the case of a conveyance by the husband's assignee in bank- 
 ruptcy, Roberts v. Shroyer, 68 Ind. 64; MoGracken v. Kuhn, 73 Id. 149; 
 Warford v. Noble, 9 Biss. 320. 
 
 In Maryland, where lands are sold for the husband's debts upon pro- 
 ceedings to which the wife is a party, she will be bound by a decree that 
 the land be sold free of dower, Gardiner v. Miles, 5 Gill 94. 
 
 Sale for Taxes. 
 
 Dower will not be barred by a sale of the husband's property for unpaid 
 taxes, Blodget v. Brent, 3 Cr. Cir. Ct. 394 ; Walsh v. Wilson, 130 Mass. 
 124; but the law is otherwise in Ohio, the Court proceeding upon the 
 ground that a tax title had no connection with any previous chain, but was 
 the result of " a breaking up of all previous titles," Jones v. Devore, 8 Ohio 
 St. 430 ; and it is presumed, that wherever the claim of the husband's debts 
 is made superior to that of dower, a tax sale will bar dower. 
 
 Effect of Assignment for Benefit of Creditors. 
 
 Dower will not be barred by a voluntary assignment made by the hus- 
 band, for the benefit of creditors, in which the wife does not join, and a 
 29 W 
 
338 Thompson v. Moeeow. 
 
 subsequent sale, by the assignee, for the purposes of his appointment, Dwyer 
 V. Garhugh, 31 Ohio St. 158 ; Orittenden v. Woodruff, 11 Ark. 82. This is 
 the law even in Pennsylvania, Keller v. McMichael, 2 Yeates 300; Helfrieh 
 V. Obermyer, 15 Pa. St. 113 ; Blackman's Est, 6 Phila. 160. 
 
 And the law is the same in the case of an involuntary assignment under 
 compulsory process, Eherle v. Fisher, 13 Pa. St. 526. In delivering the 
 opinion of the Court, Burnside, J., said : " There is no case in our books 
 which carries the extinguishment of a widow's right of dower beyond a 
 judicial sale, and this is not that; this is no more than a voluntary convey- 
 ance. The husband had his choice, whether to lie in prison, on the ca. sa., or 
 surrender his property to his creditors, under the then existing insolvent 
 laws. He chose the latter ; but there is nothing in these insolvent laws 
 which commanded or authorized him to surrender the incipient rights of 
 his wife. . . . Our insolvent laws required the assignment to be made when 
 the unfortunate debtor was in custody ; he must so make it to obtain his 
 discharge ; his creditors designated, and the Court appointed the trustee. 
 The interest which his assignee had, was precisely his interest and no more, 
 Krause v. Beitel, 3 Rawle 199. The trustee stands in the shoes of the 
 insolvent ; he sells his effects real, personal, and mixed ; he collects his 
 debts, and he divides the fund, according to law, among the creditors ; if a 
 surplus, he returns it to the debtor. The wife is not named in our insolv- 
 ent laws ; and if the insolvent has real estate which is sold by the trustee, 
 and she survives her husband, she is entitled to dower in that estate.'' 
 
 Bankruptcy. 
 
 Dower is not barred by a sale by the assignee in bankruptcy of the hus- 
 band under the United States bankruptcy acts, Worcester v. Clark, 2 Grant 
 84; Speake v. Kinard, 4 S. Car. 54 ; Re Bartenback, 11 N. B. R. 61 ; Me 
 Angier, 4 Id. 619 ; Roberts v. Shroyer, 68 Ind. 64 ; Lazear v. Porter, 87 Pa. 
 St. 513, S. C. 6 W. N. C. 321, 7 Reporter 216 ; Cooper v. Tabor, 8 W. N. C. 
 341. 
 
 In Worcester v. Clark, the decision was rested entirely on the phraseology 
 of the Bankrupt Act of 1841, which saved the " lawful rights of married 
 women ; " but in Lazear v. Porter, this reason of decision was disapproved, 
 and dower was upheld on the broad ground of the resemblance between 
 bankruptcy and insolvency proceedings ; that the restrictions upon dower 
 should not be multiplied, and that in the absence of express divestiture of 
 dower by the statute, it should not be permitted to be inferentially prejudiced 
 or destroyed. Accordingly, where, by a direction of the Court of Bankruptcy 
 that the sale of certain property, held by the bankrupt subject to a mortgage, 
 
Thompson v. Morrow. 339 
 
 in which the wife had not joined, should be made free of dower, a sale is made 
 by the assignee, the right of dower is not divested, Re Bartenback, supra. 
 
 Dower Superior to Mechanic's Lien. 
 
 The imposition of a mechanic's lien upon the property through a con- 
 tract with the husband, and its subsequent enforcement against the premises, 
 will not affect the right of dower. Bishop v. Boyle, 9 Ind. 169 ; Gove v. 
 Gather, 23 111. 634; Sliaeffer v. Weed, 8 Id. 613; Pifer v. Ward, 8 Blackf. 
 252; Van Vrouker v. Eastman, 7 Mete. 162 ; Mark v. Murphy, 76 Ind. 634. 
 The reason of the rule is well stated by Gorkins, J., in Bishop v. Boyle: 
 "The mechanic bestows his labor with a knowledge of her [the wife's] 
 prior right, and he knows the house he is building, as brick is added to 
 brick, and nail after nail is driven, becomes real estate. He can protect 
 himself by security, or not venture. She is passive, and can do nothing." 
 
 The case of Nazareth Literary and Benevolent Institution v. Lome, 1 B. 
 Mon. 257, is contrary to the course of authority, unless the circumstance 
 that the property was subject, at the time the mechanic's lien attached, to 
 a vendor's lien, had the effect of preventing a dowable seizin before the 
 mechanic's claim became a lien. This explanation of the case derives 
 strength from Wilson v. Damsson, 2 Rob. (Va.) 384, which denies that 
 dower can be had even in the surplus, where land, subject to a vendor's 
 lien, is applied to the payment of debts. 
 
 Decree for Specific Performance of Contract of Sale— or Execwi- 
 tion tliereof after Husband's Death. 
 
 Where the husband has made a contract for the conveyance of land, 
 and dies before its fulfilment, a decree for specific performance against his 
 widow and heirs will not bar dower; for it was in the husband's power to 
 contract with reference to his own interest alone, and not to that of the 
 widow, Grady v. McCorhle, 57 Mo. 172 ; nor will dower be affected by the 
 execution of such a contract by an administrator or executor, by virtue of 
 an order of Court, Biddlesberger v. Mentzer, 7 Watts 141 ; or by the admin- 
 istrator without such an order. Covert v. Sertzog, 4 Pa. St. 145 ; but where, 
 in pursuance of an order of Court, under such circumstances, a deed was 
 executed by the administrator, and by the widow, who was also administra- 
 trix, but who did not sign herself as such, though so described in the deed, 
 and which, without expressly mentioning dower, conveyed all the " estate, 
 title, interest, and property " of the widow, it was held that the convey- 
 ance would bar the widow's dower, Thomas v. Harris, 43 Pa. St. 231. 
 
340 Thompson v. Moeeow. 
 
 A sale "by virtue of foreclosure proceedings upon a purchase-n^oney mort- 
 gage, will not deprive the wife of a right to redeem, Bell v. Mayor of New 
 York, 10 Paige 49 ; Wheeler v. Morris, 2 Bosw.'524. 
 
 Where the husband has mortgaged an equity of redemption, and the 
 mortgagee has entered and taken possession of the mortgaged premises, the 
 widow can have her dower, unless, being duly notified after her husband's 
 death that the possession is adverse, and for a foreclosure, she rests upon 
 her rights until barred by the statute of limitations at law, or her claim 
 has become stale in equity, Jjund v. Woods, 11 Met. 566. 
 
 Bar by Proceedings upon a Mortgage in which Wife has Joined. 
 
 Where the wife joins in a mortgage, its enforcement will bar her dower, 
 Frost V. Peacock, 4 Edw. 678 ; Watson v. Clendenin, 6 Blackf. 477 ; Baker 
 V. Fetters, 16 Ohio St. 596 ; and this has been held where the foreclosure 
 was against the husband alone, Riddick v. Walsh, 15 Mo. 519 ; but it seems 
 to have been more generally held that it is necessary to join the wife, Har- 
 rison V. Eldridge, 2 Hals. 392 ; McArthur v. Franklin, 15 Ohio St. 485 ; 
 McArthur v. Franklin, 16 Id. 193 ; Ketehum v. Shaw, 28 Id. 503 ; and see 
 Mills V. Van Voorhies, 20 N. Y. 412 ; and that the dower-right must be in 
 issue ; see Moomey v. Maas, 22 Iowa 380. 
 
 If the wife is an infant at the time of joining in the mortgage, she is not 
 barred of her dower, Glenn v. Clark, 53 Md. 580 ; except in the case of her 
 joinder in a purchase-money mortgage ; but in that case the bar rests on 
 the superior equity of the mortgagee, and not on the wife's joinder, Id. 
 
 The sale may be on proceedings taken after the husband's death, and 
 yet bar dower, Mead v. Mead, 39 Iowa 28 ; Graves v. Braden, 62 Ind. 93. 
 
 It has been held that where a mortgage has been joined in by the wife, her 
 dower will be barred by a sale, after the husband's death, for the same debt 
 as that for which the mortgage was given, St. Clair v. Morris, 9 Ohio 15 ; 
 Mead v. Mead, supra ; but this statement of the law would seem to be by 
 no means without opposition. In Harrison v. Eldridge, 2 Hals. 392, Bou- 
 DiNOT, J., said: "If he [the mortgagee] files a bill in equity to foreclose, 
 the wife, having joined in the mortgage, must be made a party; and, being 
 brought before the Court, they must either redeem or submit to have the 
 equity of redemption foreclosed, by which the wife's right to dower in the 
 premises is forever barred ; or the lands may be sold by a decree of the 
 Court, by which the rights of both the defendants will be transferred to 
 the purchaser under the sale, who will hold the property free from every 
 claim on the part of either husband or wife. 
 
 "If, however, the creditor or mortgagee proceed simply to sue on his bond, 
 
Thompson v. Moeeow. 341 
 
 and obtain judgment, the execution issued thereon may be levied, indiffer- 
 ently, on all the property of the defendant, as well that not included in the 
 mortgage as that specifically pledged. If the mortgaged premises are 
 levied upon and sold under it, the estate conveyed by the sheriff to the 
 purchaser, depending wholly upon the judgment and execution, is in no 
 maimer affected by the circumstance that a mortgage had been previously 
 given. The mortgagee may be considered a party to the proceedings, and 
 it would be questionable, at least, whether, having treated the property as 
 the estate of his mortgagor, he should not be estopped from ever setting 
 up a claim under the mortgage. Supposing Harrison himself, without the 
 intervention of the sheriff, and without any proceedings on the part of the 
 mortgagee, had made the sale and conveyance to the present defendant, 
 and had himself applied the proceeds of the sale to paying off the mort- 
 gages, can a question exist as to the consequences which would legally re- 
 sult from the measure? would not the mortgages, after the satisfaction, be 
 as if they had never been, and the wife's right to dower, which had not 
 been absolutely extinguished, but only conditionally suspended, be renewed 
 in all its strength ? 
 
 "If the purchaser would derive any benefit from the wife's having joined 
 in the deed of mortgage for the security of the debt, he may, if he has an 
 equitable title to it, obtain an assignment of the mortgage ; he will then 
 stand in the same situation in which the mortgagee would have stood had 
 he reduced the mortgaged premises into possession without foreclosing the 
 equity of redemption, but certainly in no better. 
 
 " If a contrary doctrine were established, the consequences would be as 
 was forcibly urged in the argument, that a husband, by inducing his wife 
 to join in a mortgage for a debt, however inconsiderable, would acquire an 
 absolute control over her right to dower, and might deprive her of her in- 
 terest in an estate of the greatest value. She could not in any manner 
 prevent the bringing of an action on the bond on any of the subsequent 
 proceedings. Her joining in what is called a mere mortgage, therefore, 
 would be not merely pledging her interest as additional security for the 
 payment of the debt, but a total disposition of her estate, an absolute, not 
 a defeasible, conveyance." 
 
 The ground upon which the cases which hold the contrary rule are based 
 is well expressed by Millee, C. J., in Mead v. Mead : " It is not the kind 
 of proceedings instituted to bar dower that has that effect, but the relin- 
 quishment by the wife gives the mortgagee, through the means of the 
 courts, the power to subject it to sale for the payment of the debt.'' 
 
 The joinder in the mortgage is effectual, as a bar to the widow's dower, 
 only in favor of the mortgagee, Rutherford v. Munce, Walk. (Miss. Rep.) 
 29* 
 
342 Thompson v. Morrow. 
 
 370 ; Tabele v. Tabele, 1 Johns. Ch. 45 ; Eildreth v. Jones, 13 Mass. 525 ; 
 Klinck V. KecMey, 2 HiU Ch. 250 ; Wheekr v. Morris, 2 Bosw. 524 ; or of 
 those who equitably take his place. Dearborn v. Taylor, 18 N. H. 153 ; and 
 hence the -widow will have dower in the surplus of the mortgaged land, 
 after satisfying the mortgage, Keith v. Trapier, 1 Bailey Eq. 63 ; for the 
 effect upon dower of the wife joiniag in a mortgage, is not so much to 
 convey the dower as to create a bar to attend the husband's conveyance — 
 to endure whUe it endures, to cease when that conveyance becomes inoper- 
 ative, Richard v. Talbird, Eice Eq. 158; and the widow's right is so far 
 recognized, that where she had joined in a mortgage to secure a debt, paya- 
 ble by iostalments, and part having been paid, it was found, after the hus- 
 band's death, that the balance could be paid by a sale of a portion of the 
 land, it was held that the income of the wife's share of the residue could not 
 be taken to pay iastalments not yet due. Bank of Ogdensburgh v. Arnold, 5 
 Paige 38 ; and where a sale is made of land subject to a mortgage, superior 
 to the wife's dower, a chancellor will protect that right so far as is consistent 
 with the equities of the mortgagee. Fry v. Merchants' Ins. Co., 16 Ala. 810. 
 
 Effect of Extinguishment of Mortgage. 
 
 When a mortgage, which, whether because it has been joined in by the 
 wife, or because it is an ante-nuptial or a purchase-money mortgage, is 
 superior to the claim of dower, is paid and extinguished, the husband's seizin 
 is relieved of the incumbrance, and at once becomes one that will support 
 dower, Atkinson v. Stewart, 46 Mo. 510. This may be by relation ; and if 
 the mortgage is paid off by the husband or his heir, or personal representa- 
 tive, there can be no question as to the effect of the transaction ; but when 
 it is claimed that the payment, or act of a purchaser of the equity of re- 
 demption, or the mortgagee constitutes such an extinguishment, there is 
 more doubt. 
 
 It has been held, that where the purchaser of the equity of redemption 
 buys the mortgage from, the mortgagee pending the life of the mortgagor, 
 in that case there is such an extinguishment that the latter's widow will be 
 entitled to her dower, Collins v. Torry, 7 Johns. 278 ; Coates v. Cheever, 1 
 Cowen 460 ; but in Popkin v. Bumstead, 8 Mass. 491, the Court held that, 
 on the purchase of an equity of redemption, the purchaser had the right to 
 pay off the mortgage, and thus relieve his estate of an incumbrance ; and 
 having all the equitable interest himself, when he paid the money, the legal 
 estate followed the equitable, and he became seized of the whole fee. The 
 Court ftirther said, that if this were not the plain, legal effect of the trans- 
 action, the law would construe the discharge of the mortgage by the 
 
Thompson v. Morrow. 343 
 
 mortgagee, a release by him to the tenant, who had become lawfully pos- 
 sessed of the equitable interest, and from whom the consideration of the 
 discharge flowed ; and see Hinds v. Ballou, 44 N. H. 619. 
 
 It is held in many cases, that where the assignee of the equity of redemp- 
 tion pays the amount of the mortgage and takes an assignment thereof, he 
 may keep the mortgage alive, so as to protect himself against the widow's 
 claim, Hartshome v. Hartshome, 1 Green Ch. 349 ; Atkinson v. Angert, 46 
 Mo. 516 ; Sargeant v. Fuller, 105 Mass. 119 ; Be Lisle v. Herbs, 32 N. Y. S. 
 C. 485 ; but where the tenant pays off the debt absolutely, the mortgagor's 
 widow will have dower, Atkinson v. Angert, supra ; Mathewson v. Smith, 1 
 K. I. 22; Runyan v. Stewart, 12 Barb. 537; and the omission to take an 
 assignment has been considered evidence that the mortgage was not to be 
 kept alive as against the dowress. Thus in Wedge v. Moore, 6 Cush. 8, as 
 appears by the report, which is not a very good one, land was subject to 
 three mortgages, the widow having joined in the second only ; the third 
 mortgagee paid off the two prior mortgages without the knowledge of the 
 mortgagor, it was held that the widow could have dower as against the 
 third mortgagee, Shaw, C. J., said : " The fact that the tenant obtained a 
 discharge of the mortgage and did not take an assignment, leads to the 
 conclusion that he was to pay the mortgagor himself, as part of the pur- 
 chase-money." 
 
 In Eaton v. Simonds, 14 Pick. 98, the purchaser of an equity of redemp- 
 tion paid the mortgage debt, and intended to take an assignment of the 
 mortgage, but being told that it would be unnecessary to do so, he had the 
 mortgage discharged of record, it was held that the dower of the mort- 
 gagor's widow was unincumbered ; and see Carter v. Goodin, 3 Ohio St. 75. 
 
 The mere fact that a person, whose duty it is to pay a debt secured by a 
 mortgage, does so, and, instead of having the mortgage satisfied, takes an 
 assignment thereof, will not have the effect of keeping it alive as against 
 dower. Brown v. Laphrnn, 3 Cush. 351 ; it will be held to be a discharge, 
 though an assignment in form. Hatch v. Palmer, 58 Me. 271. 
 
 The true rule in cases of a formal assignment seems to be that stated by 
 Parker, C. J., in Gibson v. Orehore, 3 Pick. 475 : " When the purchaser 
 of a right to redeem takes an assignment, this shall or shall not operate as 
 an extinguishment of the mortgage, according as the interest of the party 
 taking the assignment may be, and according to the real intent of the par- 
 ties." And see also Simonton v. Gray, 34 Me. 50 ; Toomey v. McLean, 105 
 Mass. 122 ; and in Carll v. Butman, 7 Me. 102, a quit-claim from the 
 mortgagee to the purchaser was held to take effect as an assignment. 
 
 When the mortgagee, or his assignee, purchases the equity of redemp- 
 tion, he will have a right to prevent a merger of his mortgage with the 
 
344 Thompson v. Moeeow. 
 
 fee, so as to protect himself against the claim for dower, Thompson v. Boyd^ 
 1 Zab. 58 ; and the mere fact that he buys the equity, will not give dower 
 as against him ; each case will depend upon its own circumstances, Eldridge 
 V. Eldridge, 1 McCart. 195 ; WoodhuU v. Reid, 1 Harr. 128; Russell v. Aus- 
 tin, 1 Paige 193 ; Opdyke v. Bartles, 3 Stock. 133. 
 
 In Ketehum v. Shaw, 28 Ohio St. 503, K. and wife executed a mortgage, 
 which mortgage was assigned to B. K. afterwards failed in business, and 
 made an assignment, for the benefit of creditors, to B., who, under an order 
 of Court, sold the mortgaged premises, which brought more than the mort- 
 gage debt ; the personalty also brought more than the said debt. It was 
 held that K.'s wife could have dower. 
 
 In Woods V. Wallace, 30 N. H. 384, it was held that where, after the 
 death of a husband, the holder of a mortgage upon his land purchased the 
 equity of redemption, the widow was entitled to dower upon contributing 
 to the redemption of the mortgage ; that prior to his purchase the mort- 
 gagee could have insisted upon payment of the whole debt, but afterwards, 
 as owner of the equity, to that of a portion only. 
 
 Effect of Bedemption by Personal Kepresentatives of the Hus- 
 band. 
 
 Where the mortgage is redeemed by the husband's personal representa- 
 tives, the widow may have dower without being required to contribute to 
 the discharge thereof, Rosdt&r v. Cosdt, 16 N. H. 38 ; but see Trowbridge 
 V. Sypher, 55 Iowa 352 ; but in favor of one having an interest in the re- 
 demption, the widow must contribute if she would have dower, Rosdter v. 
 Cosdt, supra; Woods v. Wallace, supra; and see Newton v. Cook, 4 Gray 46; 
 and see Michigan, Comp. Laws, Vol. 2, Tit. XXII., Ch. CLI., § 4274 ; Wis- 
 consin, Rev. St., Pt. 2, Ch. 98, §2165; Nebraska, Comp. St., Ch. 23, §6, p. 
 213; Oregon Sts., Ch. 17, Tit. 1, §6. 
 ' In Vermont, it is provided by statute, that where payment is made either 
 by the personal representative or the heir, the widow's dower shall be dimin- 
 ished by such payment, Sts., Tit. 15, Ch. 114, § 2217, p. 450 ; and in Iowa, 
 it has been held that the widow's distributive share of mortgaged property 
 must bear its proportion of the mortgage debt, even where a sale is made 
 by leave of Court for the purpose of paying the husband's debts, Trowbridge 
 V. Sypher, 55 Iowa 352 ; from this decision Beck, J., dissented. 
 
 Effect of Charge. 
 
 Where lands come to the husband subject to a charge, the dower of the 
 wife must contribute to the charge, Clough v. Elliott, 23 N. H. 182. 
 
Thompson v. Moeeow. 345 
 
 Effect of Performance of a Coudltion. 
 
 Where a mortgage is given to secure the performance of a condition, and 
 the condition is discharged, the right of dower becomes absolute, Lanfair v. 
 Lanfair, 18 Pick. 299. 
 
 Eflfect of Common Kecovery SuflFered by Husband Alone. 
 
 A common recovery, suffered by a tenant in tail, to which the wife is not 
 a party, will not affect her dower, Sharp v. Pettit, 1 Yeates 389. 
 
 Effect of Partition. 
 
 Where the husband is seized of an undivided portion of a piece of land, 
 and partition is made, in good faith, between him and his co-tenants, by 
 deed, the wife is bound by such partition, and can claim dower only in the 
 portion assigned to her husband in severalty ; for it is an incident of an 
 estate in common, that any tenant may be compelled to make partition, 
 and the marriage gives a right of dower subject to the contingency of par- 
 tition being enforced. Potter v. Wheeler, 18 Mass. 504 ; Totten v. Stuyvesant, 
 3 Edw. 500 ; Matthews v. Matthews, 1 Id. 565 ; Mosher v. Mosher, 32 Me. 142 ; 
 but if the proportions assigned to the different tenants are made essentially 
 uneven, for a pecuniary or other consideration, the widow of a tenant re- 
 ceiving a smaller proportion than independently of the collateral considera- 
 tion he would have been entitled to, will not have her dower-right confined 
 to the land set out to her husband. Cases supra. 
 
 The widow is also bound, by proceedings at law, in partition where the 
 land is actually divided, Wilhinson v. Parish, 3 Paige 653 ; and it seems 
 in such case she need not have been made a party to the proceedings, Mat- 
 thews V. Matthews, supra ; but where there is sale of the land by an order 
 of Court, in partition, the wife must have been made a party, or her dower 
 is not barred, Wilkinson v. Parrish, supra ; Warr&)i v. Tvdlley, 10 Md. 39 ; 
 Jordan v. Van Epps, 26 N. Y. S. C. 526 ; 85 N. Y. 427 ; Kent v. Taggart, 
 68 Ind. 163. 
 
 In Lee v. Lindell, 22 Mo. 202, it was held that the wife was barred by 
 proceedings in partition to which she was not a party, and that when, by 
 virtue of an act of Assembly, the husband received a sum of money in lieu 
 of his share of the land, the dower of the wife was divested. Leonard, 
 J., dissented, holding that the wife should be made a party, so that her 
 contingent right might be protected by securing it on the proceeds of the 
 
346 Thompson v. Moerow. 
 
 In the spirit of this dissent is the legislation of Michigan and Wisconsin, 
 which provides that, in proceedings in partition, the Court may order a 
 payment in gross, to be made in lieu of dower, if the dowress assent to it, 
 or may order the sum to be invested to secure dower, Michigan, Comp. 
 Laws, Vol. 2, Tit. 31, Ch. 196, §§ 6310, 6311, 6312, 6313, pp. 1785-6 ; Wis- 
 consin, Pt. 2, Tit. 26, Ch. 134, §§ 3121-3125, p. 811. 
 
 EflPect of Exchange. 
 
 In the case of an exchange of lands between a husband and a third per- 
 son, there would be, on the part of the husband, sufficient seizin to give his 
 wife dower in both pieces of ground; and yet justice and equity would 
 seem to forbid that the widow should take dower in both ; and yet it would 
 be unjust to confine her to the land received, for in that case a door would 
 be opened to fraud, and an exchange might readily be made simply a dep- 
 rivation of dower by another name ; accordingly, we find, in several of 
 the States, acts passed providing that, in case of such exchange, the wife 
 shall make her election of which piece she will be endowed, Illinois, Rev. 
 St. (1880, Hurd), Ch. 41, §17, p. 427; Arkansas, Rev. St., Ch. XLIX., 
 § 2212 ; Michigan, Comp. Laws, Vol. 2, Tit. XXII., Ch. CLI., § 427 ; Wis- 
 consin, Rev. St., Pt. 2, Tit. 20, Ch. 98, § 2161, p. 626; Nebraska, Comp. St., 
 Pt. 1, Ch. 23, § 2 ; New York, Rev. St. (1882), Pt. 2, Ch. 1 ; Oregon, Ch. 17, 
 Tit. 1, § 2 ; and this, in all probability, would be held to be the general 
 law wherever the question should arise ; see Stevens v. Smith, 4 J. J. M. 64. 
 
 In order, however, to put the widow to her election, the exchange must 
 be one falling within the definition in 2 Blackst. Com. 323, viz., "a mutual 
 grant of equal interests, the one in consideration of the other ; " and where 
 the exchange was of an equity in seventy-five acres, for eleven acres and a 
 sum of money, the widow was not put to an election, Wileox v. Randall, 7 
 Barb. 633 ; and where A. conveyed his farm to B., and B. his to A., and 
 the deeds did not set out an exchange, it was held that there had been no 
 proper exchange, and that the widow could take dower in both farms, Cass 
 V. Thompson, 1 N. H. 65. 
 
 In New York, Michigan, Wisconsin, Nebraska, and Oregon, the election 
 must be made withia one year after the husband's death, or the widow will 
 be confined to the land received by the husband; see statutes cited, mpra. 
 
 Vendor's IJlen Superior to Dower. 
 
 Dower is subject to the vendor's lien. In Wilson v. Davisson, 2 Rob. 
 (Va.), 384, Baldwin, J., said: "A wife's right of dower is an emanation 
 
Thompson v. Morrow. 347 
 
 from the ownership of her husband, and subject to all its qualifications, 
 though not to his alienation or incumbrance during the coverture, without 
 her consent, declared in the mode prescribed by law. The right is depen- 
 dent upon his as existing at the inception of the coverture, or as acquired 
 by him during its continuance. ... If the purchase-money be unpaid and 
 not secured, an equitable mortgage is embodied in the transaction itself, 
 and if that be foreclosed by a sale of the property under the decree of a 
 court of equity, the wife's right of dower' is completely extinguished." And 
 see Thorn v. Ingram, 25 Ark. 52 ; Crane v. Palmer, 8 Blackf 120 ; Naza- 
 reth IMerary and Benevolent Institution v. Lowe, 1 B. Mon. 257 ; Ellicott v. 
 Welch, 2 Bland. Ch. 242 ; Kirby v. Dalton, 1 Dev. Eq. 195 ; Williams v. 
 Woods, 1 Humph. 408 ; Walton v. Margraves, 42 Miss. 18 ; Coche v. Bailey, 
 Id. 8 ; Tisdale v. Rkh, 7 Bush. 139 ; Harrison v. Griffith, 4 Id. 147 ; Orumb 
 V. Davis, 64 Iowa 22 ; but the lien, while unenforced, will not reduce the 
 amount of dower receivable by the widow ; Flinn v. Barber, 64 Ala. 193 ; 
 Boynton v. Sawyer, 35 Id. 497 ; it is only superior to the widow's dower, it 
 does not destroy it, and when enforced after her husband's death, the widow 
 will be entitled to one-third of the rents from her husband's death to the 
 time of the enforcement, Wilson v. Ewing, Court of Appeals of Kentucky, 
 1881, 13 Reporter 272. 
 
 Where Vendor's Lien is Upheld. 
 
 The lien exists only where its object is money, and where the vendor 
 relies on it and not on other security; thus where the consideration of a 
 deed was support, the lien was not upheld as against the dower of the 
 grantee's widow, Meigs v. Dimoek, 6 Conn. 458 ; it is lost by taking any 
 independent security, HoUis v. Hollis, 4 Baxt. 524. 
 
 Where a vendor takes a note, bill, or bond for the price of the land, with 
 distinct security, he waives his lien, and the vendee's widow may have 
 dower, although the price be unpaid, Blair v. Thompson, 11 Gratt. 441 ; 
 and it has been even held, when the purchaser gave notes for the price to 
 the vendor's creditor, that there remained no lien paramount to dower, 
 McClure v. Harris, 12 B. Mon. 264. 
 
 In Clements v. Bostwiek, 38 Ga. 1, the Court refused to enforce a vendor's 
 lien, as against dower, where the vendor had parted with the legal title by 
 conveying it to the vendee ; but the better opinion appears to be that the 
 lien may be upheld as superior to dower, even where the vendor has given 
 up the legal title and taken notes for the price, if he has done nothing else 
 to waive his right. Brooks v. Woods, 40 Ala. 538 ; Warner v. Van Alstyne, 
 3 Paige 513 ; Bisland v. Hewett, 11 Sm. & M. 164 ; Firestone v. Firestone, 
 
348 Thompson c. Moerow. 
 
 2 Ohio St. 415 ; and in a case where notes were given for the price, and, 
 remaining unpaid, the vendee reconveyed the land to the vendor, who re- 
 turned the notes, it was held that no right of dower had vested in the ven- 
 dee's wife, Hugunin v. Cochrane, 51 111. 302. 
 
 The hen is lost by taking a deed of trust to secure the notes for the pur- 
 chase-money. Thus in Gregg v. Jones, 5 Heisk. 443, the vendee having 
 died before the deed of trust given by him had been enforced, it was held 
 that the widow's dower was superior to the vendor's claim. Nichoi^on, C. 
 J., said : " The vendor once had the right to assert the superiority of his 
 lien to the widow's right of dower, but he elected to make a contract by 
 which he ceased to rely on the vendor's lien, and chose to rely on his trust 
 deed. By the provisions of the statute he brought his debt under the oper- 
 ation of the express provisions of the statute, and it is not in our power to 
 restore him to his rights as vendor." 
 
 The vendor's lien once satisfied, it cannot be kept alive, so as to preju- 
 dice dower in favor of any other debt, though due to the same person who 
 is the vendor. Thus in James v. Fields, 5 Heisk. 394, the notes given for 
 purchase-money were all paid, but the vendor made a loan to the vendee, 
 and it was agreed that the vendor should hold the legal title as security 
 therefor, it was held that the lien given by the agreement, though good as 
 against creditors, would not avail its holder as against the dower-right of 
 the vendee's widow, the purchase-money lien having been extinguished by 
 the payment of the notes. 
 
 When the vendor files his bill to enforce his lien, the widow may set up 
 her dower, for she has a right to an account, for after the lien is discharged 
 she wUl have a right to dower in the surplus. Brooks v. Woods, 40 Ala. 538 ; 
 and it has been held that a wife may, under such circumstances, assert her 
 inchoate interest, Unger v. Letter, 32 Ohio St. 210; after the husband's 
 death, the wife's dower is not divested by a suit to enforce the vendor's 
 lien, unless she be made a party to the proceedings, Willd, v. JBeatty, 12 B. 
 Mon. 172. 
 
 Charge of Legacies on Devised Lauds no Bar to Dower therein. 
 
 Dower is not barred in devised lands, by the fact that they have been 
 charged with legacies, and although the legatee proceeds and obtains a 
 judgment against the devisee, the latter 's wife will be entitled to her dower, 
 Lhyd V. Conover, 1 Dutch. 47 ; and where a specific devise of realty is 
 made, the devisee will not be entitled to exoneration against the dower of 
 the devisor's widow, unless there is an express direction to that effect in the 
 will, Drummond v. Drunvmond, 40 Me. 35. 
 
Thompson v. Morrow. 349 
 
 Dower Superior to Rights of Creditors. 
 
 Dower is superior to the rights of creditors, Yandell v. Pugh, 53 Miss. 
 296, even in States where the right of dower is confined to lands of which 
 the husband dies seized, Cond>a v. Young, 4 Yerg. 218 ; Stokes v. 0' Fallon, 
 2 Mo. 29 ; Bray v. Lamb, 2 Dev. Eq. 372 ; and the case is not altered by 
 the fact .that the husband is insolvent at the time of his death, Crittenden 
 V. Johnson, 11 Ark. 94 ; Crittenden v. Woodruff, Id. 82. The rule is other- 
 wise in Pennsylvania, and at one time was so in Missouri ; and, in case of 
 insolvency, in Mississippi, Bridgeforth v. Maxwell, 42 Miss. 743 ; but debts 
 can be set up as agaiost dower by the creditor only, Thomas v. Hesse, 34 
 Mo. 13. • 
 
 Sale by Order of Probate Court for Debts of Husband. 
 
 Where lands are sold by a probate court for the debts of the husband, 
 the wife's dower will not be barred, Owen v. Slatter, 26 Ala. 547 ; Living- 
 ston V. Cochran, 33 Ark. 294 ; and see Floyd v. Hodge, 10 Eich. 157 ; and 
 that, although the widow was made a party to the proceedings and did not 
 answer, Merriwether v. Sebree, 2 Bush. 232 ; although in such case an inno- 
 cent purchaser will be protected, and the widow, as against him, confined to 
 a claim against the proceeds, Id. 
 
 It has been held that such a sale will not be a bar, although made on 
 the petition of the widow as administratrix, Owen v. Slatter, supra ; but in 
 Stoney v. Bank of Charleston, 1 Eich. Eq. 275, where the executrix, who was 
 also the widow, filed a petition for the sale and made no claim of dower, 
 she was held barred. But while the widow cannot be barred by a sale 
 against her will, she may bar herself by concurring therein, and receiving 
 a portion of the proceeds in lieu of dower, Ellis v. Biddy, 1 Ind. 561. 
 
 For statutory provisions, whereby a decedent's land may be sold by order 
 of Court, free of dower, and the widow's interest properly appraised and 
 secured, see Maryland, Eev. Code 1878, Tit. XXVI., Art. 65, §§ 106, 108, 
 p. 651; Connecticut, Gen. Stats. (1875), Tit. 18, Ch. 11, Art. IV., §39, 
 p. 394; Alabama, Code, Pt. 2, Tit. 4, Ch. 7, Art. 1, §2469. 
 
 Defeat of Dower in Defeasible or Conditional Estate. 
 
 Where the husband holds an estate determinable upon the happening of 
 a certain event, or upon condition, if the estate is defeated by the happen- 
 ing of the event, or there is a breach of condition and the grantor enters 
 therefor, in either case the widow's dower will be defeated, Northcut v. 
 Whipp, 12 B. Mon. 65 ; Beardslee v. Beardslee, 5 Barb. 324 ; the same is 
 30 
 
350 Thompson v. Moerow. 
 
 in the case of an estate upon a conditional limitation, Northeut v. Whipp, 
 supra. 
 
 Bar of Dower where Estate is Determined by an Executory 
 Devise. 
 
 But it is held that the determination of an estate by an executory devise 
 will not defeat dower, Jones v. Hughes, 27 Gratt. 561 ; Medley v. Medley, Id. 
 668 ; Milledge v. Lamar, 4 Desau. 617 ; Evans v. Evans, 29 Pa. St. 277 ; 
 but, on the contrary, it was held, in Edwards v. Bibb, 54 Ala. 475, that in 
 the case of an executory devise on definite failure of issue, on such failure 
 dower would be divested. This case rested on Adams v. Beehman, 1 Paige 
 631, and Weller v. Weller, 28 Barb. 589 ; the latter case was a decision of 
 but one judge of a court not of last resort, and in view of the opinion of 
 the Court of Appeals of New York in Hatfield v. Sneden, 54 N. Y. 280, 
 would seem to be of questionable authority. 
 
 Bar by Execution of Power by Husband. 
 
 Where the husband is the owner of a power of disposition, and until the 
 execution of the power, the property is given to him in fee, he may, by exe- 
 cuting the power, bar his wife's dower ; but the barring must be by a paper 
 showing an intent to execute the power; therefore, where a husband devises 
 the property of which he is so possessed to a third person without alluding 
 to the power, the widow will have her dower in the land devised. Link v. 
 Edmondson, 19 Mo. 487 ; and the mere existence of the power will have 
 no efiect upon the right of dower ; accordingly, where land was conveyed 
 to C. in trust for P. for life, and subject to a power of disposition in P., 
 and the latter died without having made an appointment, it was held that 
 he took a fee, and that his wife should have dower, Peay v. Peay, 2 Rich. 
 Eq. 409. 
 
 Bar of Dower by Act to which Wife is Actually or Construc- 
 tively a Party— Jointure. 
 
 So far we have considered, principally, the cases in which the widow was 
 barred by matters within the control of third persons, and not by act of 
 her own, except incidentally. We come now to consider those means of 
 barring dower to which the wife is either actually or constructively a party ; 
 and first as to jointure. 
 
 Jointure is thus defined by Bouvier, Law Diet, ad verbum : A competent 
 livelihood of freehold for the wife of lands and tenements, to take efiect in 
 
Thompson v. Morrow. 351 
 
 possession presently after the death of the husband, for the life of the wife 
 at least. 
 
 In Littleton's time the jointure was no bar to dower, and therein was 
 distinguished from dower ad ostium ecclesice and ex assensu patris, but by 
 the statute of 27 Hen. 8, e. 10, § 6, it was enacted that a jointure should 
 be so far a bar to dower that the widow should not have both jointure and 
 dower, Co. Lit. 36 b ; Vincent v. Spomer, 2 Cush. 467. The characteristics 
 of a good jointure, by virtue of the statute, were: 1. That it should take 
 effect in possession or profit immediately upon the death of the husband. 
 2. That it should be an estate of freehold for the life of the widow or a 
 greater estate. 3. That it should be made to the widow herself 4. That 
 it should be made in satisfaction of the whole dower to which the widow 
 would otherwise be entitled. 5. That it should be so expressed or averred. 
 6. In case of a jointure made after marriage, the widow could waive it 
 and claim her dower. 
 
 This statute, and the requirements of it, have been recognized in the 
 United States, Oelzer v. Gelzer, 1 Bail. Eq. 387 ; Vance v. Vance, 21 Me. 
 364 ; Avant v. Robertson, 2 McM. 215 ; Yancy v. Smith, 2 Mete. (Ky.) 
 408; Terns' s Exrs. v. MeCreary, 3 Id. 151 ; Grider v. Euhanhs, 12 Bush. 
 510 ; Report of the Judges, 3 Binn. (App.) 619 ; Hawley v. James, 5 Paige 
 318. 
 
 In Alabama, it is held that the statute was never in force, Gould v. Womack, 
 2 Ala. 88, and that a post-nuptial jointure, to be of effect, must be accepted 
 after the husband's death, Martin's Heirs v. Martin, 22 Ala. 86. 
 
 A deed made after marriage will not be held to create a jointure in the 
 absence of an express declaration to that effect, or some act equivalent in 
 effect to a declaration, as a delivery on condition that, if the deed be re- 
 ceived and retained, it shall be in lieu of dower, Buhier v. Roberts, 49 Me. 
 460 ; Reed v. Diekerman, 12 Pick. 148. 
 
 Jointure lands need not be free from incumbrance, Ambler v. Norton, 
 4 H. & M. 23. 
 
 Bar to Dower by Ante-Nuptial Agreement. 
 
 A provision which fails in the requirements of a legal jointure, and, 
 therefore, cannot take effect as such, may, nevertheless, be of such a char- 
 acter that a court of equity will compel the widow to elect between it and 
 her dower, Logan v. Phillips, 18 Mo. 22 ; and thus arises a sort of equitable 
 jointure, which, although not enforceable at law, Gardner v. Gardner, 10 R. 
 I. 211, will yet be upheld in equity, Gelzer v. Gelzer, 1 Bail. Eq. 387, which 
 leads to the ante-nuptial agreement as a bar to dower. Such an agreement 
 
352 Thompson v. Moeeow. 
 
 is not bound by the same rules as a legal jointure, and it has been held 
 that " almost any bona fide and reasonable agreement made before mar- 
 riage, to secure the wife in the enjoyment of a competent estate or support 
 during her life, will be upheld as a good ante-nuptial agreement ; " and in 
 Andrews v. Andrews, 8 Conn. 79, it is said that "any provision which a per- 
 son, able to contract, agrees to accept before marriage, will be a good equi- 
 table bar to dower ; " and see Gibbon v. Gibbon, 40 Ga. 562 ; Heald's Petition, 
 22 N. H. 265; Selleek v. Selleek, 8 Conn. 85, note. 
 
 The provision must be fair and reasonable, Gould's Exr. v. Womaeh, 2 
 Ala. 83; Grogan v. Garrison, 27 Ohio St. 50; MoCartee v. Teller, 2 Paige 
 511, and must commence immediately upon the husband's death, McCartee 
 V. Teller, supra. 
 
 As a rule, it may be said that where the agreement is siipply that the 
 wife shall have control of her own property, with power to dispose of it by 
 will, such an agreement will not be upheld as a bar to dower, Swaine v. 
 Ferine, 5 Johns. Ch. 482; Whitehead v. Middleton, 2 How. (Miss.) 692; 
 Blachnon v. Blackmon, 16 Ala. 633 ; Adams v. Adams, 39 Id. 274; but 
 it is held otherwise in Cauley v. Lawson, 5 Jones Eq. 132 ; Stilley v. Folger, 
 14 Ohio 610 ; Andrews v. Andrews, 8 Conn. 79 ; and see Wentworth v. Went- 
 worth, 69 Me. 247. 
 
 In Culberson v. Culberson, 37 Ga. 296, the agreement was that the wife, 
 in lieu of dower, should have control of her property to her sole and 
 separate use, and that the husband's estate should be chargeable with fur- 
 nishing the wife, in case she survived her husband, with a house, lot, and 
 three thousand dollars. It was held that there was a good equitable bar 
 provided in the agreement. 
 
 In McGee v. McGee, 91 111. 548, both parties owned property, real and 
 personal, and, by the contract, the husband relinquished all rights which, 
 by the marriage, he would have acquired over his wife's property, and in 
 consideration thereof she relinquished dower; the agreement was upheld as 
 a good bar. 
 
 The provision by ante-nuptial contract to bar dower may consist of either 
 realty or personalty, Tevis's Exrs. v. McCreary, 3 Mete. (Ky.) 151 ; Farrow 
 V. Farrow, 1 Del. Ch. 457 ; it may be of a sum of money, Findley's Exrs. 
 V. Findley, 11 Gratt. 434 ; but a gift of money, to be a good bar, must be 
 designed and accepted as an equivalent for dower, O'Brien v. Elliot, 15 
 Me. 125. 
 
 In Hastings v. Dichinson, 7 Mass. 153, it was held that an annuity was 
 no bar, although the widow had covenanted not to demand dower ; and to 
 the same eifect see Gibson v. Gibson, 15 Mass. 106. 
 
 The agreement is wthin the Statute of Frauds as touching realty, and, 
 
Thompson v. Morrow. 353 
 
 therefore, a verbal agreement, that in consideration of certam things to be 
 given to the wife by the husband she will not claim dower, is no bar to 
 a claim of dower, and the marriage, in the absence of actual fraud, will 
 not be regarded as such partial performance of the contract as will take 
 the case out of the operation of the statute, Finch v. Finch, 10 Ohio St. 
 501. 
 
 A mere agreement not to claim dower has been held to be against public 
 policy, and hence unavailing against the widow, Ourry v. Ourry, 17 N. Y. 
 S. C. 367. In Wentworth v. Wentworth, 69 Me. 247, however, it was held 
 that the consideration of marriage was, per se, sufficient to support an 
 agreement in bar of dower ; but even if the position taken in this case be 
 sound, it would seem that the consideration of marriage must embrace the 
 support and companionship which generally follow its solemnization. In 
 Spiva V. Jeter, 9 Eich. Eq. 434, there was an ante-nuptial agreement that 
 the wife should have no dower. After the marriage the husband deserted 
 his wife; it was held that she was not barred of her dower even as against 
 a purchaser of the husband's land. 
 
 The mere agreement, no matter how effectual a bar it provides for, is of 
 no avail without performance, and will not deprive the widow of her dower, 
 and compel her to claim against her husband's estate simply as a creditor, 
 or by virtue of her contract, Johnson v. Johnson's Admr., 23 Mo. 561 ; Bren- 
 ner V. Gauch, 85 111. 368 ; Sheldon v. Bliss, 8 N. Y. 81 ; but on a failure to 
 perform, her right of dower revives, Sargent v. Roberts, 34 Me. 135 ; but it 
 is also held that in such case the widow must rescind the contract, for if 
 she accept a pro rata share of her husband's estate with creditors or others, 
 she will be barred, Camden Mutual Ins. Asso. v. Jones, 23 N. J. Eq. 171. 
 
 To bar dower, the performance of the contract must be strict, or at least 
 substantial. In Sheldon v. Bliss, supra, the contract was to leave the widow 
 an annuity during life, and the annuity left was durante viduitate only, it 
 was held that there was no bar, and that the widow could claim her dower. 
 Vincent v. Spooner, 2 Cush. 467, seems to be contrary to the general current 
 upon the subject of the necessity of performance to constitute a bar; but as 
 it was decided upon the Massachusetts statute, Eev. St. e. 60, §§ 8, 9, it can 
 hardly disturb outside decisions. In that case the intending husband cove- 
 nanted to secure to a trustee for his wife, by will or otherwise, a certain 
 annual sum during widowhood ; he died leaving a will which did not make 
 the provision covenanted, but which contained a general direction that his 
 debts .should be paid and his obligations fulfilled. The executor stated his 
 willingness to pay the annual sum. The Court held that the ante-nuptial 
 contract itself was a complete provision within the statute, and that the 
 dower was barred. 
 
 30* X 
 
354 Thompson v. Moeeow. 
 
 In Freeland v. Freelflnd, 128 Mass. 509, the contract was that both hus- 
 band and wife should retain their respective estates, and those which might 
 accrue afterwards to them, separate and apart from each other, with full 
 power of disposition, "provided, that in case of the death of F. [the hus- 
 band], she, the said Mary [the wife], surviving him, there shall, within one 
 year from the time of his decease, be paid to the said Mary the sum of 
 $1500, as a proper debt of his estate." Covenants to pay the said $1500, 
 and, on the part of the wife, to release all claims on the husband's estate, 
 were added. The $1500 were never paid. The Court, without going *to 
 the full extent of Vincent v. Spooner, held that the widow was not entitled 
 to claim dower, Soule, J., saying: "The fact that this agreement for $1500 
 is not the only stipulation in consideration of which the demandant agreed 
 to release her dower, but is merely one of several agreements which, to- 
 gether, make up the marriage contract, takes the case out of the doctrine 
 which governs where the agreement is to accept a mere pecuniary provision 
 instead of dower." 
 
 Where the ante-nuptial contract is to provide sufficiently by will for the 
 wife, the husband is not the sole judge of what constitutes sufficiency, and 
 if he make provision for an insufficient maintenance only, a court of equity 
 will increase the amount of the provision. Rivers v. Rivers, 3 Desau. 190; 
 and this it may do at the expense of voluntary grantees of the land of the 
 husband or his heirs ; thus in Garrard v. Garrard, 7 Bush. 436, the ante- 
 nuptial contract was that the husband should give to his wife a sufficient 
 support during widowhood. At the time of his marriage he owned a con- 
 siderable amount of land ; during the coverture he conveyed all his land, 
 without other consideration than that inferrable from relationship, to his 
 children, and died insolvent, without making provision for his widow. 
 The Court charged the lands of the children with annuity in favor of the 
 widow. 
 
 An ante-nuptial contract will not be extended by implication so as to bar 
 dower in lands acquired after the date of the contract, where the intent 
 of the husband to bar dower, as dower in the whole of the property of 
 which he may be seized during the coverture, does not appear. Thus in 
 Arrlngton y.Arrington's Heirs, 2 Car. Law Eepos. 253, the husband and wife, 
 before marriage, and in contemplation thereof, conveyed, by a deed, to a trus- 
 tee all the husband's lands, and all that he might thereafter acquire in trust, 
 that the husband might hold the same during life, and sell or appoint the 
 same by will, with a remainder, in case of intestacy, to the use of the hus- 
 band's children. The deed contained no covenant on the part of the 
 widow, nor was it expressed to be in satisfaction of dower. The Court 
 held that the deed could only operate upon such lands as the husband 
 
Thompson v. Morrow. 355 
 
 owned at the time of its execution, and did not bar the widow's dower in 
 after acquired property. 
 
 Any fraud in the ante-nuptial contract will avoid it, and the widow may 
 then claim dower; thus in Farrotv v. Farrow, 1 Del. Ch. 457, the intending 
 wife agreed to take one-third of the personalty of the husband in lieu of 
 dower ; at the time the husband was in debt beyond the value of the person- 
 alty, and concealed the fact ; it was held that the wife could have her dower. 
 
 An infant will not be held bound by an ante-nuptial contract ; thus in 
 Shaw V. Boyd, 5 S. & R. 309, an infant, with the assent of her parent and 
 guardian, and in contemplation of marriage, gave her bond to release 
 dower in consideration of five hundred dollars, to be paid to her after her 
 husband's death. The husband died, and the widow, still a minor, received 
 the five hundred dollars, and executed a release of dower. The Court 
 recognized the English rule to be that a settlement of personalty upon an 
 infant might act as a bar, but held, without considering the general ques- 
 tion, that the case showed no settlement, but the mere naked contract of an 
 infant, by which she was not bound. 
 
 In Levering v. Heighe, 3 Md. Ch. 365, it was held that an infant could 
 bar her dower by an ante-nuptial contract. The Chancellor relied on the 
 cases of Drury v. Drury, 2 Eden 39, and McCartee v. Teller, 2 Paige 511, 
 as supporting his position. It may, however, be noted, that the remarks 
 which the learned Chancellor relied upon in the cases cited by him, were 
 mere dicta, the question in the first-named case being whether a female 
 infant could so settle her realty as to bind her ; and in Me Cartee v. Teller, 
 all that Walworth, Ch., said was that " an equitable jointure, or a com- 
 petent and certain provision for the wife in lieu of dower, if assented to by 
 the infant and her father or guardian before marriage, and to which there 
 is no objection but its equitable quality, would bar dower." 
 
 Where a marriage contract is alleged, its existence and whole contents 
 must be strictly proved, Gangwere's Estate, 14 Pa. St. 417. 
 
 Settlement during Coverture Accepted after Husband's Death. 
 
 A settlement may be made during coverture as a bar to dower, but it 
 must be voluntarily accepted by the widow, after her husband's death, in 
 order to be binding, McCartee v. Teller, 2 Paige 511. 
 
 A mere gift to the wife, or a settlement upon her during coverture, will 
 not be regarded as in lieu of dower unless so expressed. This was decided 
 in Mitchell v. Wood, 60 Ga. 525, in which the husband, in contemplation 
 of death, had made a gift to his wife, which he declared, in writing, to be in 
 part provision for her, but said nothing about dower as such. 
 
356 Thompson v. Morrow. 
 
 Acceptance of a homestead by the wife during coverture will not be a 
 bar to her dower, McAJee v. Bettis, 72 N. C. 28. 
 
 "Widow Deprived, of Provision Entitled to Dower or Indemnity. 
 
 The widow, if deprived of her provision through no fault of her own, 
 may have dower or indemnity, Tevis's Exrs. v. Me dreary, supra; Grider v. 
 Euhanhs, 12 Bush. 510 ; but her dower right will not be revived by the 
 subsequent deterioration of property which she has taken in lieu thereof; 
 thus in Lively v. Paschal, 35 Ga. 218, the widow had, by a post-nuptial 
 settlement made at her desire, received, in lieu of dower, certain negroes. 
 The husband died in 1858, and the widow held the slaves, whose value was 
 great, until after their emancipation by the Federal power. After this 
 event the widow tried to have the contract set aside, but her application 
 was refused. 
 
 Statutory Regulation of Jointures and Settlements in Lieu of 
 Dower. 
 
 The subject of jointures and ante-nuptial and post-nuptial contracts has 
 been the subject of statutory regulation in many of the States, as follows : 
 
 Arkansas. — ^A joiature ia land before marriage with the assent of the 
 intended wife. Rev. St., Ch. XLIX., § 2218, or a pecuniary ante-nuptial 
 provision likewise assented to, § 2220, will bar dower. The wife's assent is 
 to be shown by her becoming a party to the marriage settlement ; if she is 
 an infant, the assent may be given for her by her guardian, § 2219. If a 
 jointure is made after marriage, or if without the assent of the wife, either 
 a jointure or pecuniary provision is made before marriage, the widow may 
 elect between her dower and the provision, § 2221 ; and unless within one 
 year she enter upon land for dower, or otherwise proceed to obtain the 
 same, she is to be regarded as having elected the provision, § 2223. 
 
 Connecticut. — ^Any settlement before marriage, to take effect on the death 
 of the husband, and to be in lieu of dower, is a bar, unless it fails in whole 
 or ia part, in which case the widow will be entitled to dower in the estate, 
 or in so much thereof as will recompense her for her loss, not exceeding 
 the value of her dower. Gen. St., Eev. 1875, Tit. 18, Ch. 11, Art. IV., §4. 
 
 Delaware. — Jointure is made a bar, and there is the same provision as 
 to recompense as that above stated, Laws, Ch. LXXXVII., §§ 3, 4. 
 
 Georgia. — ^A provision before marriage, and accepted by the wife in lieu 
 of dower, will be a bar. Code (1873), Pt. 2, Tit. 2, Ch. 1, Art. 2, § 1764. 
 
 Illinois. — Dower is barred by a jointure in land, Rev. St., Ch. 41, § 7, 
 
Thompson v. Morrow. 357 
 
 assented to before marriage by the intending -wife, or, in case of her in- 
 fancy, by her father or guardian, § 8 ; in case of no assent, or if a provision 
 is made after marriage, the widow may elect between the provision and 
 dower, § 9. 
 
 Kentucky. — Jointure may be of either realty or personalty, and if made 
 before marriage, without the wife's consent, or during her infancy, or after 
 marriage, the widow may waive the jointure, and claim dower within twelve 
 months after the husband's death, Gen. St., Ch. 52, Art. IV., § 6, p. 630. 
 
 Maine. — Dower is barred by a jointure in land, Eev. St. (1871), Tit. IX., 
 Ch. 103, § 7, p. 757, of at least a freehold for life, taking effect immediately 
 on the husband's death, and assented to by the intended wife, the assent 
 being shown by her becoming a party to the settlement, and if within 
 age, being joined in the deed, by her father or guardian. If made without 
 her assent, the jointure may be waived by the widow within six months 
 after the husband's death, § 9. 
 
 Massachusetts. — The law is the same as in Maine, as above stated, Eev. 
 St. (1882), Ch. 124, §§ 7, 9, p. 741, and dower may also be barred by a 
 pecuniary provision, subject to the same terms as a jointure, § 8. 
 
 Missouri. — Jointure may be of realty or personalty, if it constitutes a 
 provision for support during the life of the widow, and is expressed to be 
 in bar of dower, or if lands are conveyed during coverture to the wife for 
 the same purpose, by another person, in either case the dower will be 
 barred, Rev. St., Vol. 1, Ch. 29, § 2201 ; if the provision is made after mar- 
 riage, or during the infancy of the intended wife, she may elect between 
 dower and the provision, § 2202. 
 
 New York. — The wife's dower is barred by a jointure, provided it be a 
 freehold for the life of the wife, at least, to take effect immediately upon 
 the husband's death, in possession or profit, Eev. St. (1882), Pt. 2, Ch. 1, 
 Tit. 3, § 9, assented to by the wife joining in the deed, or, if an infant, by 
 her father or guardian joining, § 10 ; or by a pecuniary provision, § 11. If 
 without assent, or made after marriage, the wife may elect between the 
 provision and dower, § 12. 
 
 The law is the same in Michigan, Comp. Laws, Vol. 2, Tit. XXII., Ch. 
 CLI., §§ 4282, 4285 ; Wisconsin, Eev. St., Pt. 2, Tit. 20, Ch. 98, §§ 2167- 
 2170 ; Nebraska, Comp. St., Pt. 1, Ch. 23, § 13-16 ; Oregon, Ch. 17, Tit. 1, 
 §§ 14-17. 
 
 New Jersey. — A jointure will bar dower, Eevision of 1877, p. 322, pi. 10, 
 and if made after marriage, or during the infancy of the wife, she may 
 elect between it and her dower. Id., pi. 12, 13. 
 
 The law is the same in Ohio, Eev. St. (1880), Vol. 1, Pt. 2, Tit. IV., Ch. 3, 
 §4189. 
 
358 Thompson v. Moekow. 
 
 Rhode Island. — ^A provision for the life of the widow, to take effect im- 
 mediately after the husband's death, is a bar to dower, ; but if made after 
 the marriage, or during the infancy of the wife, she may waive it after the 
 husband's death, St., Tit. 29, Ch. 229, § 23, p. 640. 
 
 South Carolina. — A jointure will be a bar, but, if made after marriage, 
 the widow may waive it and take dower. Stats., Ch. 83, §§ 12, 15. 
 
 Maryland. — Any estate given by jointure, or other settlement, before 
 marriage, is a good bar to dower, Rev. Code, Art. 50, Tit. 24, § 226. 
 
 Virginia. — Dower is barred -by a provision by way of jointure ; if it is 
 made after marriage, or during the infancy of the wife, she may waive it. 
 Code, Tit. 31, Ch. 106, §§4,5. 
 
 The law is the same in West Virginia, Rev. St., Ch. 70, §§ 4, 5. 
 
 New Hampshire. — Dower may be barred by an ante-nuptial settlement, 
 Gen. St. (1878), Ch. 202, § 11. 
 
 Vermont. — Dower is barred by a jointure, settled by the husband or 
 other person, or a pecuniary provision, before marriage, with or without 
 the consent of the wife, which will take effect immediately after the death 
 of the husband, and is expressed to be in lieu of dower, Rev. Laws (1880), 
 Tit. 18, Ch. 114, § 2219 ; the wife is permitted to waive the provision with- 
 in eight months from the proof of the husband's will, or a grant of letters 
 of administration. 
 
 In case of lawful eviction of the widow from her jointure or provision, it 
 is expressly provided in many States that she shall be recompensed either 
 by an endowment, or by an indemnity from her husband's lands or estate, 
 to the extent of what would have been her dower ; see Maine, Rev. St., 
 Tit. 1, Ch. 90, §16, p. 470; Vermont, Sts., Tit. 15, Ch. 114, §2225; Mas- 
 sachusetts, Sts. (1882), Ch. 124, §15; New Jersey, Rev. of 1877, p. 322, 
 pi. 10; Delaware, Laws, Ch. LXXXVIIL, §4; Connecticut, Gen. St. 
 (Rev. 1875), Tit. 18, Ch.. 11, Art. IV., §4; Kentucky, Gen. St., Ch. 52, 
 Art. IV., §7, p. 530; Virginia, Code, Tit. 31, Ch. 106, §6, p. 854; West 
 Virginia, Rev. St. (1879), Ch. 70, §8, p. 500 ; Michigan, Comp. Laws, Vol. 
 2, Tit. 22, Ch. 151, §4288, p. 1362; Nebraska, Comp. St., Pt. 1, Ch. 23, 
 § 19 ; Oregon, Ch. 17, Tit. 1, § 20 ; Ohio, Rev. St. (1880), Vol. 1, Pt. 2, Tit. 
 IV., §§ 4190, 4191 ; Rhode Island, Pub. Sts. (1882), Tit. 29, Ch. 229, §§ 24, 
 25, p. 640; South Carolina, Sts., Ch. 83, § 14, p. 432 ; -Wisconsin, Rev. St., 
 Pt. 2, Tit. 20, Ch. 98, § 2173. 
 
 A peculiarity of a jointure, under the law as received by us from Eng- 
 land, is that it is not forfeited, as is dower, by the misconduct of the wife, 
 Sidney v. Sidney, 3 P. Wms. 269 ; Tower v. Davys, 1 Vern. 479. This 
 peculiarity has been, in some States, taken away by enactments, to the 
 effect that jointure shall be forfeited in all cases where dower would be. 
 
Thompson v. Moeeow. 359 
 
 New York, Rev. St. (1882), Pt. 2, Ch. 1, Tit. III., § 15, p. 2198; Arkansas, 
 Sts., Ch. XLIX., § 2224. 
 
 Bar of Dower by Devise or Bequest Accepted by Widow. 
 
 A bar to dower may be created by a devise or bequest to the widow in 
 the husband's will, intended to be in lieu of dower, and accepted by the 
 widow, McDowall v. McDowall, 1 Bail. Eq. 324 ; Kennedy v. Milh, 13 
 Wend. 553. 
 
 It sometimes becomes a question, as to whether a provision is intended to 
 be in lieu of dower, or as a free gift to the widow. 
 
 In the absence of any statutory provisions upon the subject, it is gener- 
 ally held that the intent to bar dower must be plain, and that if there is 
 doubt with reference thereto, the widow will be favored, Clark v. Griffith, 
 4 Iowa 405 ; Sigganbotham v. Cornwell, 8 Gratt. 83 ; Smith v. Kniskern, 4 
 Johns, Ch. 9 ; Sandford v. Jackson, 10 Paige 266 ; Whilden v. Whilden, 
 Riley, Ch. 205 ; Douglas v. Feay, 1 W. Va. 26 ; Kelly v. Stinson, 8 Blackf. 
 387 ; Ostrander v. Spickhard, Id. 227 ; Exrs. of Green v. Green, 7 Port. 19 ; 
 Stark V. Sunton, Saxt. 216 ; Ounningham v. Shannon, 4 Rich Eq. 135 ; 
 McLeod V. McDonnel, 6 Ala. 236; Ailing v. Chatfield, 42 Conn. 276 ; Gordon 
 V. Stevens, 2 Hill Ch. 46. 
 
 It is even held in some cases, that to cause a devise or bequest to have 
 the effect of being in lieu of dower, it must be so expressed in the will, 
 Perry v. Ferryman, 19 Mo. 469 ; Bryant v. McCune, 49 Id. 546 ; Pickett v. 
 Peay, 2 Const. Rep. (1 Series) 746 ; S. C. 3 Brev. 545 ; Blunt v. Gee, 5 Call 
 481 ; Booth v. Stebbins, 47 Miss. 161 (but see contra, Wilson v. Cox, 49 Id. 
 538) ; Wood v. Lee, 5 T. B. Hon. 50 ; Mills v. 3Elk, 28 Barb. 454 ; Sheldon 
 V. Bliss, 8 N. Y. 31 ; but the strong expression of Gardner, J., in the last 
 cited case, seems hardly supported by the authorities in his State ; and, so 
 far as this point is concerned, this case, and those which follow it, would 
 seem to be of no weight since the decision in Tobias v. Ketchum, 32 N. Y. 
 319. In some cases it has been held that any provision will put the widow 
 to her election, Reid v. Campbell, Meigs 378 ; Craven v. Graven, 2 Dev. 
 Eq. 338. 
 
 The better opinion seems to be that the widow may be compelled to elect 
 between the provision in the will and her dower, by a strong and necessary 
 implication, as by the devise being in itself inconsistent with the right of 
 dower, McCullough v. AUen, 3 Yeates 10, which follows in the line of Ken- 
 nedy V. Nedrow, 1 Dallas 415, where McKean, C. J., laid down the fol- 
 lowing as the circumstances under which equity would put the widow to 
 an election : " 1st. Where the implication that she shall not have the devise 
 
360 Thompson v. Morrow. 
 
 and the dower is strong and necessary ; 2dly. Where the devise is entirely 
 inconsistent with the claim of dower ; and 3dly. Where it would prevent 
 the whole mil from taking effect ; that is, where the claim of dower would 
 overturn the will in toto." 
 
 The rule, as laid down in Tobias v. Ketchum, 32 N. Y. 319 (reversing S. 
 C. 36 Barb. 304), is that a provision in a will will not be held to be intended 
 in lieu of dower, unless the bequest is so repugnant to the claim of dower 
 that the two cannot stand together ; and see Lewis v. Smith, 9 N. Y. 502 ; 
 Bull V. Church, 5 Hill (N. Y.) 206, 2 Denio 430; Jachson v. Churchill, 7 
 Cow. 287 ; Savage v. Burnham, 17 N. Y. 562 ; Lasher v. Lasher, 13 Barb. 
 106 ; ToroJce v. Hardeman, 7 Ga. 20 ; Fuller v. Yates, 8 Paige 325 ; Adait v. 
 Adsit, 2 Johns. Ch. 448 ; Sample v. Sample, 2 Yeates 389, 483 ; Havens v. 
 Havens, 1 Sand. Ch. 324 ; Sandford v. Jackson, 10 Paige 266 ; Corriell v. 
 Ham, 2 Iowa 552 ; Stewart v. Stewart, 31 N. J. Eq. 398 ; Cain v. Cain, 23 
 Iowa 31 ; but no election will be caused when the provision and dower can 
 take effect together, Herbert v. Wren, 7 Cr. 370. 
 
 The fact that the devise is of a larger estate than the dower, will not 
 raise the implication of a bar, Evans v. Webb, 1 Yeates 424 ; and where the 
 provision, by wiU, includes dower, it is tantamount to a gift in addition to 
 dower, and the widow can, therefore, hold the dower freed from claims 
 against the husband's estate, Baxter y.Bowyer, 19 Ohio St. 490. 
 
 In Wood V. Wood, 5 Paige 596, it was held that the widow was not put to 
 her election by a direction that all the testator's estate should be sold, and 
 one-third of the proceeds be invested for the use of the widow during wid- 
 owhood, — Walworth, Ch., saying : " I am satisfied, however, from an 
 examination of the American as well as the English cases, that a devise of 
 all the testator's real and personal estate to trustees, to be converted into 
 money, without any particular designation of the real property to be sold, 
 and giving to the wife an annuity, or other provision, out of such mixed 
 fund, is not of itself sufficient to show that the testator intended that her 
 interest in the land, as tenant in dower, should be sold as part of the estate, 
 so as to make it necessary for the widow to elect between such dower and 
 the provision contained in the will." 
 
 Upon the same principle see Chandler v. Woodward, 3 Harring. 428 ; 
 Kinsey v. Woodward, Id. 459 ; and in Cordon v. Stevens, 2 Hill Ch. 46, it is 
 held that a direction to executors to sell, and a devise to the wife of all 
 the land received through her, would not cause an election. 
 
 It has, however, been held that a direction to sell the realty is incon- 
 sistent with dower, and will put the r.idow to an election, Vernon v. Vernon, 
 53 N. Y. 351 ; Brink v. Layton, 2 Redf. 79 ; and so a devise to executors 
 to sell at their discretion, and invest one-half the proceeds for the benefit 
 
Thompson v. Morrow. 361 
 
 of the wife during life, Colgate v. Colgate, 23 N. J. Eq. 372 ; but a mere 
 devise of the real estate to trustees, to pay over the iRcome, or a portion 
 thereof, to the widow, will not have that effect, Van Arsdale v. Van Arsdale, 2 
 Dutch. 404 ; Colgate v. Colgate, supra. 
 
 If the will, containing a provision for the wife, creates a trust of the 
 land, and vests the entire legal estate in trustees, with active duties, there 
 is such a repugnance between the provisions of the will and dower as will 
 cause an election, Tobias v. Ketehum, 32 N. Y. 319. 
 
 A direction that the whole estate should be kept together for a year, and 
 applied to debts, and then, after specific bequests, including some to the 
 wife, had been paid, be kept together until the eldest child attained his 
 majority, and then be divided, will not be a devise in bar of dower. Brown 
 V. Caldwell, Speers Eq. 322. 
 
 In Worthen v. Pearson, 33 Ga. 385, it was held that when the testator 
 devises the whole of two properties, if there be one part of the property as 
 to which it is clear, that the testator did not intend it should be subject to 
 the claim of dower, it follows that he did not intend that any portion of it 
 should be subject to dower, and in such case the wife is put to her election. 
 
 A devise to the testator's sons, coupled with a direction to support their 
 mother, is not inconsistent with the right of dower in the latter, Jackson ex 
 d. Louche v. Churchhill, 7 Cow. 287 ; nor is a devise, with a provision that 
 the widow shall have her support therefrom, and live with the devisees, 
 although the support is charged on the laud devised, Douglass v. Feay, 1 
 W. Va. 26 ; or is a devise to the widow herself of the use of a room and a 
 comfortable support, to be paid by the executors. Smith y. Kniskem, 4 Johns. 
 Ch. 9. 
 
 A bequest of "all my property, real and personal," to the widow for 
 Ufe, will not, by itself, put her to an election, Metteer v. Wiley, 34 Iowa 214 ; 
 and see Lewis v. Smith, 9 N. Y. 502 ; or a bequest of one-third the testator's 
 realty and personalty, given at a time when the dower in Iowa was in fee, 
 Watrous V. Winn, 37 Iowa 72, 
 
 A devise of an estate for years is not to be held as intended in bar of 
 dower, Wiseley v. Findlay, 3 Rand 361 ; nor will a provision in personalty 
 be presumed to be so intended, Pemberton v. Pemberton, 29 Mo. 408 ; Fulton 
 v. Fulton, 30 Miss. 586. 
 
 A devise to a widow, to which is attached a condition that she educate 
 the testator's children, will not show an intent that it is to be taken in lieu 
 of dower, Webb v. Evans, 1 Binn. 565. 
 
 A widow may be put to an election by a devise durante viduitate, followed 
 by a devise over on her marriage, Luigart v. Ripley, 19 Ohio St. 24; Bailey 
 v. Boyee, 4 Strobh. Eq. 84 ; Hamilton v. Buckwalter, 2 Yeates 389 ; Oreo- 
 Si 
 
362 Thompson v. Morrow. 
 
 craft V. Dille, 3 Id. 79, S. C. Addison 350 ; and although the devise over is 
 that the property shall "go according to law," Stark v. Hunton, Saxt. 216 ; 
 but see contra Blunt v. Oee, 5 Call 481 ; and in McOuire v. Brown, 41 Iowa 
 650, where there was a devise durante viduitate, and a provision that, in 
 case of marriage of the widow, the property should " take the course desig- 
 nated by existing laws," it was held that on her remarriage the widow could 
 have dower. 
 
 A declaration, in a will, that personalty is left to the wife to exclude her 
 from any further " demands on my estate," coupled with a devise of the 
 rest of the estate, real and personal, to the executors for disposition, will 
 sufficiently manifest an intention to bar dower, Norris v. Clark, 2 Stockt. 51. 
 
 By statute, in some of the States, a presumption that the devise to, or 
 provision for, the widow, in a will, i? in lieu of dower, is raised by the mere 
 devise or provision itself, unless it appear that the testator intended that 
 his widow should have both bequest and dower. See Michigan, Comp. 
 Laws, Vol. 2, Tit. XXII., Ch. CLI., § 4286 ; Wisconsin, Eev. St., Pt. 2, Tit. 
 20, Ch. 98, § 2171 ; Nebraska, Comp. St., Pt. 1, Ch. 23, § 17 ; New York, 
 Eev. St. (1882), Pt. 2, Ch. 1, Tit. 3, § 13 ; Oregon, Ch. 17, Tit. 1, § 1 ; Ohio, 
 Eev. St., Pt. 3, Tit, 2, Ch. 1, §5963, p. 1433 ; Massachusetts, Gen. Sts., Ch. 
 127, §20, p. 750 (St. 1783, c. 24, §8); Illinois, Rev. St., Ch. 41, §10; 
 Maine, Eev. St. (1871), Tit. IX., Ch. 103, § 10 ; Pennsylvania, Eev. Dig., 
 Vol. 1, p. 629, pi. 4, Act. 14, Apr. 1851, § 11 ; Arkansas, Eev. St., Ch. 
 XLIX., §§ 2233, 2334 ; and see Jones v. Hughes, 27 Gratt. 560 ; Hilliard 
 V. Binford's Heirs, 10 Ala. 977 ; Hardy v. Scales, 64 "Wise. 452. 
 
 In Missouri, Eev. St., Vol. 1, Ch. 29, §2199, and New Jersey, Eev. of 
 1877, p. 322, pi. 16, the presumption of intention to bar dower is confined 
 to cases in which the provision is of realty. Under the New Jersey act, it 
 has been held that a devise of a room in a house will not raise the pre- 
 sumption, White V. White, 1 Harr. (N. J.) 202 ; and that the devise, to cause 
 an election, must be to the widow herself, and not in trust for her, and of 
 lands lying Avithin the State, Van Arsdale v. Van Arsdale, 2 Dutch. 404 ; 
 and see Thompson v. Egbert, 2 Harr. (N. J.) 459 ; and in a case not coming 
 within the letter of the law, as to presumption, the old rule will prevail ; 
 thus in Freeland v. Mandeville, 28 N. Y. Eq. 559, the will empowered the 
 executors to sell the realty and purchase a home, to be used by the widow 
 and children until the youngest child came of age. Eunyon, Ch., quoting 
 KiNDERSLY.V. C, said : "It is not enough to say that, upon the whole will, 
 it may be fairly inferred that the testator intended his widow should not 
 have dower. In order to compel her to elect, the Court must be satisfied 
 that there is a positive intent, either expressed or clearly implied, that she 
 is to be excluded from dower, Gibson v. Qibson, 17 E. L. & E. 349. 
 
Thompson v. Moeeow. 363 
 
 " Nor were any of the provisions of the will dependent on the relinquish- 
 ment of her dower. The land might have been sold subject to her dower. 
 It was, in fact, sold on an arrangement for the relinquishment of it on com- 
 pensation being made to her out of the purchase-money. The fact that she 
 consented to the sale, and took her dower out of the purchase-money, was 
 regarded by Lord Alvanly, M. R., in Freneh v. Daviea, 2 Ves. jr. 572, as 
 a complete answer to the objection that the widow's claim of dower would 
 obstruct the sale." 
 
 In Maryland, the presumption is that the provision is in lieu of dower, 
 but where the provision is mixed, the widow need only elect as between the 
 realty devised to her and dower, Code, Tit. XXIV., Ch. 50, §§ 227, 230 ; 
 see Durham v. Rhodes, 23 Md. 233 ; Orrick v. Boehm, 49 Id. 172. 
 
 In Greorgia, the statute leaves the presumption in favor of the wife's 
 right of dower, except where the provision is expressed to be in lieu of 
 dower, or there is a manifest intent to that effect. Code (1873), Pt. 2, Tit. 2, 
 Ch. 1, Art. 2, §1764. 
 
 In those States where the presumption has been changed by statute, as 
 above, the intention to give both dower and provision must appear,, or the 
 widow will be put to her election, Hastings v. Clifford, 32 Me. 132 ; Delay 
 V. Vinal, 1 Met. 57 ; Moore v. Steidel, 1 Dis. 281 ; and where there was a 
 devise to the wife of one part of the testator's estate, and that the other 
 part should " be disposed of as the law directs," it was held that the pre- 
 sumption against dower was not so far overcome as to give it to the widow 
 in the second portion, Adams v. Adams, 5 Met. 277. 
 
 Where the intention does not appear by the will, parole evidence, to 
 show that the devise or provision was intended in lieu of dower, is inadmis- 
 sible, Hall V. Hall, 8 Rich. 407. It is otherwise held in Virginia and Ken- 
 tucky, Bailey v. Duncan's Rep., 4 T. B. Mon. 256 ; Herbert v. Wren, 7 Cr. 
 370 ; Dixon v. McOue, 14 Gratt, 540 ; Ambler v. Norton, 4 H. & M. 28. 
 
 Acceptance of Provision Necessary— Election— How made. 
 
 The efficacy of all bars by will, depends upon their acceptance by the 
 widow after the husband's death. Her election may be made by the 
 method provided by statute, in which case the statutory method must be 
 followed substantially ; see Walton's Est., 1 Tuck. 10 ; Price v. Woodford, 43 
 Mo. 247, or by matter in pais. 
 
 To render an election in pais binding, it must be made with full knowl- 
 edge of the facts, and of the electress's right, Anderson's Appeal, 36 Pa. St. 
 476 ; Bradjords v. Kents, 43 Id. 474 ; Milliken v. Welliver, 37 Ohio St. 460, 
 S. C. 13 Reporter 346 ; and, therefore, the widow is not bound to make her 
 
364 Thompson v. Moeeow. 
 
 election before the husband's estate is settled, Ball v. Hall, 2 McCord Ch. 
 269 ; or while a controversy is going on over the will regarding the realty, 
 in which controversy the widow's rights are involved, Church at Aoquackanonk 
 V. Exrs. of Ackerman, Saxt. 40 ; and where she has made an election in 
 ignorance of the condition of the estate, she may retract her election, unless 
 her change of purpose will injure one who has, bona fide, acted upon her 
 election, Dahney v. Bailey, 42 Ga. 521 ; Macknet v. Macknet, 29 K J. Eq. 
 54 ; Simonton v. Houston, 78 N. C. 408 ; creditors of the husband will not 
 have the right to object to the retraction of an election to take the pro- 
 vision, since they are in no worse position than if the husband had died 
 intestate, Simonton v. Houston, 78 N. C. 408. She may also retract where 
 her election has been in consideration of an undertaking by the heirs, which 
 has not yet been fulfilled by them, Eichart v. Richart) 30 Iowa 465. But 
 where an election has been made in ignorance of the law only, the widow 
 having foil knowledge of the facts, it is binding, unless the ignorance has 
 been occasioned by fraud, Cauffman v. Cauffman, 17 S. & R. 16 ; Light v. 
 Light, 21 Pa. St. 407. 
 
 In Kents v. Bradfords, 43 Pa. St. 474, Steong, J., laid down the follow- 
 ing rule as to an election and a retraction thereof: "Nothing less than 
 unequivocal acts will prove an election, and they must be acts done with 
 the knowledge of the party's rights, as well as of the circumstances of the 
 case. . . . When the question is, whether a widow has elected to take a 
 devise or bequest under her husband's will, in lieu of dower at law, it is 
 not sufficient to prove that she has been merely passive, or even that she 
 has received the property given to her by the will, unless she knew the situ- 
 ation of her husband's, estate and the relative values of the properties be- 
 tween which she was empowered to choose. All this must be conceded ; 
 and so even when a widow has the requisite knowledge, where an act done 
 by her is equivocal, the intention with which the act was done is material 
 to be considered. But a widow who, after having become acquainted with 
 all that is necessary for her to know, in order to make a binding election, 
 receives the gift conferred by her husband's will, and uses it as her own, is 
 not at liberty to say she did not intend to relinquish dower. Her acts are 
 inconsistent with any other intention. They are not equivocal. She has 
 no right to the gift except as legatee or devisee, and her taking and using 
 it is an admission that she chooses to take under the will. . . . There are, 
 undoubtedly, decisions that a widow may elect dower even after she has 
 claimed and received the legacy or devise made to her, but she may not 
 receive and hold the benefits conferred by the will of her husband, after 
 the extent of her rights has become known to her, and then retract her 
 election." 
 
Thompson v. Morrow. 365 
 
 In Ohio, it is even held that the probate judge should explain to the 
 widow the provisions of the will and her rights, to the end that her election 
 may be intelligent; the record of election need not, however, show that this 
 was done, Davis v. Davis, 11 Ohio St. 386. 
 
 An election, made fairly and understandingly, is a bar to the claim of 
 dower both at law and in equity, Davison v. Davison, 3 Green Law 235 ; 
 Heron v. Hoffner, 3 "Kawle 393 ; Hamilton v. Buchwalter, 2 Yeates 389. 
 
 An election in pais may be shown in various ways, as an election against 
 dower, by the widow selling the land, or a distributive share devised to her, 
 for an estate beyond her life, Brown v. Gantrell, 62 Ga. 257 ; or by enter- 
 ing upon and continuing for a long time in possession of the land devised 
 to her in lieu of dower, Caston v. Gaston, 2 Eich. Eq. 1 ; Oraijjf's Heirs v. 
 Walthall et ux., 14 Gratt. 518 ; Kents v. Bradfords, supra ; but the mere 
 remaining in the mansion house, where it has been devised to the widow, 
 will not show an election to take under the will, for her occupancy may be 
 referred to her right of quarantine, MeCallister v. Brand's Heirs, 11 B. 
 Mon. 371. 
 
 Qualifying as executrix of the husband's will, will be an election to take 
 under it, Mendenhall v. Mendenhall, 8 Jones Law 287, or accepting a testa- 
 mentary trust and administering it. Delay v. Venal, 1 Mete. 57 ; but where 
 it does not appear tha,t the widow acted with a full knowledge of the condi- 
 tion of her husband's estate, or of her rights, her acts in paying the debts 
 of her husband out of his money, receiving and holding the balance, and 
 having control of the real and personal estate, do not constitute an election 
 to take under a will, by the terms of which the wife was given the residue 
 of the real and personal estate of her husband, after the payment of his 
 debts, for life, the will not having been proved, and the wife dying within 
 the statutory time for an election to take under the will, Millihen v. WelUner, 
 13 Reporter 346, 37 Ohio St. 460. 
 
 The bare receipt of articles, specifically bequeathed to the widow, will 
 not, without more, determine her election, Duncan v. Duncan, 2 Yeates 302. 
 
 Ordinary proceedings at law, to obtain dower, constitute a suflBcient elec- 
 tion against the will, Quarles v. Garrett, 4 Desau. 145 ; where an annuity 
 is given to the widow in lieu of dower, and charged on land devised, and 
 the devisee refuses to pay, the bringing of an action to recover the annuity 
 is a sufficient election to take under the will. Van Or den v. Van Orden, 10 
 Johns. 30. 
 
 For other instances of what is and what is not a binding election, see 
 
 English v. English, 2 Green Ch. 504 ; O'Driscoll v. Koger, 2 Desau. 295 ; 
 
 Toohe V. Hardeman, 7 Geo. 20; Dixon v. McGue, 14 Gratt.; Thompson v. 
 
 Hoop, 6 Ohio St. 480; Reed v. Dickerman, 12 Pick. 146 ; Upshaw v. Upshaw, 
 
 31* 
 
366 Thompson v. Moerow. 
 
 2 H. & Mun. 381 ; Ambler y. Norton, 4 Id. 28 ; Clay v. Hart, 7 Dana 1 ; 
 Craig y.Walthall, 14 Gratt. 518 ; AvanU v. Robertson, 2 McM. 215 ; Exrs. 
 of Green v. Green, 7 Porter 19 ; Hawley v. James, 5 Paige 318 ; Gauffman 
 V. Gauffman, 17 S. & R. 16. 
 
 A renunciation of the will may be conditional, and the condition upon 
 which it depends may be the death of the widow herself, McGallister v. 
 Brand's Heirs, 11 B. Mon. 371. 
 
 Enactments as to Time of Election. 
 
 In many States, the time within which the widow must make her election 
 is fixed by statute. In New York, Rev. St. (1882), Pt. 2, Ch. 1, Tit. 3, 
 § 14; Nebraska, Comp. St., Ch. 23, § 18; Wisconsin, Rev. St., Pt. 2, Tit. 20, 
 Ch. 98, § 2172 ; Michigan, Comp. Laws, Vol. 2, Tit. XXII., Ch. CLI., 
 § 4287 ; Oregon, Gen. Laws, Ch. 17, Tit. 1, § 19, p. 586 ; the time fixed, is 
 one year from the death of the husband. 
 
 In Missouri, R. S., Vol. 1, §2200; Kentucky, Gen. Stat. (1878), Ch. 31, 
 § 12 ; Illinois, Rev. St., Ch. 41, § 11 ; Alabama, Code (1876), Pt. 2, Tit. 4, 
 Ch. 2, Art. 1, §§2292-3; Tennessee, Stats., Vol. 1, Tit. 3, Ch. 3, §2404; 
 one year from the probate of the wUl. 
 
 In North Carolina, Batt. Rev., Ch. 117, § 6, and New Jersey, Rev. of 
 1877, p. 322, pi. 16, six months from the probate of the will. 
 
 In Maryland, six months from the grant of letters upon the will, Rev. 
 Code (1878), Tit. XXIV., Art. 50, §228, p. 475. 
 
 In Ohio, one year from the issue of a citation to the widow to elect. Rev. 
 St., Pt. 3,Tit. 2,Ch. 1, §5963. 
 
 In Arkansas, eighteen months from the death of the husband. Rev. St., 
 Ch. XLIX., §2237. 
 
 Effect of Failure to Elect. 
 
 If the widow fail to manifest her election within the time allowed by the 
 statute, she will, in general, be held to have elected the provision in the 
 will ; see statutes above, and Craven v. Graven, 2 Dev. Eq. 338 ; Pratt v. 
 Felton, 4 Cush. 174 ; McLeod v. McDonnell, 6 Ala. 236 ; Pettijohn v. Beas- 
 ley, 1 Dev. & B. 254 ; Malone v. Majors, 8 Humph. 577 ; Stephens v. Gibbes, 
 14 Fla. 331 ; Vaughan v. Vaughan's Heirs, 30 Ala. 329 ; and in Connecticut, 
 it is declared, by statute, that silence on the part of the widow is to be in- 
 terpreted an acceptance of the provision. Gen. St. (Rev. 1875), Tit. 18, Ch. 
 II.,Art. IV., §4. 
 
 In Iowa the rule is otherwise, and there the silence of the widow for six 
 
Thompson v. Morrow. 367 
 
 months after a notice, given to her by a party in interest, to elect, is con- 
 strued as an election to retain dower, Annotated Stats. (McClain 1880), 
 Tit. XVI., Ch. 4, § 2452, p. 656 ; and see Missouri, Welch v. Anderson, 28 
 Mo. 293. 
 
 Independently of statute, however, silence for a long time is held to be 
 an election to take under the will, Eeed v. Diekerman, 12 Pick. 146; Noell 
 V. Gamett, 4 Call 92 ; especially where the provision is more advantageous 
 to the widow than her dower would he, Merrill y.' Emery, 10 Pick. 507; 
 Sloan V. Whitaker, 58 Ga. 319 ; but see Blunt v. Oee, 5 Call 481 ; and the 
 rule is otherwise in Ohio, where silence implies an election of dower; Stilley 
 V. Folger, 14 Ohio 610 ; Bowen v. Bowen, 34 Ohio St. 164. 
 
 It has been held that a suspension of the statute of limitations will not 
 extend the time given to the widow for her election, Stephens v. Cribhes, 14 
 Fla. 331 ; but the decision to the contrary in Hinton v. Sinton, Phil. Law 
 410, seems more in consonance with the general spirit of the law, and with 
 the favor with which the courts generally regard dower. 
 
 Where the widow has been prevented, by fraud and misrepresentation, 
 from filing a dissent to the will in due time, she may be relieved in equity. 
 Smart Y.Waterhouse, 10 Yerg. 94, and, on cause shown, a chancellor may 
 extend the time allowed by the statute, so as to enable the widow to make 
 an intelligent choice, Smither v. Smither's Exr., 9 Bush. 230 ; but it is not 
 ground for relief, that the widow was erroneously advised by counsel, one 
 of the executors of the will, that she had a longer time in which to elect 
 than that actually given by the statute, Waterhury v. Waterbury, 6 Heisk. 
 512. 
 
 Where the will contains no provision for the widow, she will not be com- 
 pelled to go through the idle formality of renouncing the will in order to 
 obtain her dower. Gumming' s Exr. v. Daniel, 9 Dana 361 ; Martin v. Martin, 
 35 Ala. 560 ; Milliard v. Binford, 10 Id. 977 ; in Tennessee, it is held that 
 where the husband dies insolvent, no formal dissent from his will is necessary 
 to entitle the widow to her dower, Jarman's Exr. v. Jarman's Heirs, 4 Lea 
 671 ; and in Missouri, under the statute of 1835, it was held that where the 
 provision was of personalty only, the widow need not renounce as to the 
 •will, Hamilton v.O'Neil, 9 Mo. 11 ; and see Jennings v. Smith, 29 111. 116. 
 
 Klght of Election Personal. 
 
 The right to elect is one personal to the widow, and does not survive to 
 her heirs or representatives, Boone's Rep. v. Boone, 3 Har. & McH. 95 ; 
 Crozier's Appeal, 90 Pa. St. 384 ; Donald v. Portis, 42 Ala. 29 ; and they 
 cannot retract her election on making compensation, Buist v. Dawes, 3 Kich. 
 
368 Thompson v. Moerow. 
 
 Eq. 281 ; Millihen v. Welliner, 13 Eeporter 346, 37 Ohio St. 460; and the 
 right must be exercised by the ■widow in her lifetime ; she cannot, therefore, 
 exercise it by ■wUl, Kyne v. Kyne, 48 Iowa 21 ; when, however, the widow 
 has actually made her election, and there remains nothing but a mere for- 
 mality to give full effect, that formality may be complied with after her 
 death. Thus mMcGrath v. McGrath's Admr., 38 Ala. 246, the widow had 
 executed a dissent, in due form, and handed it to a friend with instructions 
 to file it, as required by law. Before it was filed, however, the widow died, 
 and after her death, but within the statutory time allowed for an election, 
 the dissent was filed. It was held that the widow had sufficiently renounced 
 the will and had elected her dower. In South Carolina, in Snelgrove v. 
 Snelgrove, 4 Desau. 274, an election was allowed to be made by a widow's 
 representatives after her death. 
 
 The right of election is so far a personal right that it has been held that 
 an insane widow, incapable of making an election, is barred by the effluxion 
 of the statutory time, there being no provision in the statute for the case 
 of lunacy, Collins v. Carman, 5 Md. 503 ; and that the committee of an 
 insane widow cannot elect for her, Leivis v. Lewis, 7 Ired. Law 72 ; but a mose 
 liberal doctrine was held in Wright v. Wright, 2 Lea 78, where a lunatic 
 widow was allowed, in equity, to take dower as though she had dissented 
 from the will in due time ; and in Kennedy v. Johnston, 65 Pa. St. 451, it was 
 held, that while the committee of a lunatic widow could not elect for her, 
 yet the Court might ; but the Court will not make an election after the 
 widow's death, Grozier's Appeal, 90 Pa. St. 384. In Brovm v. Hodgdon, 
 31 Me. 65, an insane widow waived the provision of the will ; when lucid, 
 she showed no intention of avoiding her waiver, and her guardian assented 
 thereto ; it was held that she had sufficiently elected dower. 
 
 How far the Bar of an Acceptance Extends. 
 
 Where the widow accepts the provision in lieu of dower, there is a 
 division of authority as to whether dower is thereby barred as to lands 
 which have been previously sold by the husband, or only as to those of 
 which he dies seized. It is held, in the following cases, that the bar applies 
 to all lands of which the wife would otherwise have been endowed, whether 
 held by him at the time of his death, or which have been aliened either bj* 
 his own act or by that of the law, Durham v. Rhodes, 23 Md. 233 ; Chapin 
 V. Hill, 1 K. I. 446 ; Allen v. Pray, 12 Me. 138 ; Steele v. Fisher, 1 Edw. 
 435 ; Moore v. Steidel, 1 Disney 281 ; Haynie v. Dickens, 68 111. 267 ; 
 Mornseby v. Casey, 21 Mo. 545. 
 
 It was held otherwise in Borland v. Nichols, 12 Pa. St. 38 ; Wesfbrooh v. 
 
Thompson v. Morrow. 369 
 
 Vanderburg, 36 Mich. 30 ; Braxton v. Freeman, 6 Rich. 35 ; Corriell v. Ham, 
 2 Iowa 552 ; and see Leinaweaver v. Stoever, 1 W. & S. 160 ; Oreeelius v. 
 Horst, 4 Mo. App. 419. The provision will be a bar to dower in land ac- 
 quired after the date of the will, Raines v. Corbin, 24 Ga. 185. 
 
 Bequest in Liien of Dower— Incidents thereof. 
 
 A bequest in lieu of dower is not subject to contribution for a deficiency 
 with the other bequests of the same class, Lord v. Lord, 23 Conn. 327 ; 
 Hubbard v. Hubbard, 6 Met. 60 ; Williamson v. Williamson, 6 Paige 305 ; 
 Stuart V. Carson, 1 Desau. 506 ; Isenhart v. Brown, 1 Edw. 411 ; or abate- 
 ment, Howard v. Francis, 30 N. ,T. Eq. 444; Tevis's Exrs. v. McCreary, 3 
 Mete. 151 ; but the testator's debts will be paid in preference to the be- 
 quest to the widow, Isenhart v. Brown, supra; and they will be a lien upon 
 the land given and accepted in lieu of dower, Bray v. Neill's Ex'x, 21 N. J. 
 Eq. 343 ; and the said land will be also subject to the incumbrances placed 
 upon it by the husband, Inge v. Boardman, 2 Ala. 331 ; an election relin- 
 quishing dower, relinquishes' also all the incidents thereof, and, therefore, 
 after such an election, the widow cannot claim the rent of a mansion house 
 to which she would be otherwise entitled, Wigley v. Beauchamt, 51 Mo. 
 545, overruling Orriek v. Bobbins, 34 Id. 226. 
 
 It has been sometimes maintained, that where the wife takes a provision 
 in lieu of dower, she is to be regarded as a purchaser to the extent of her 
 dower, Thomas v. Wood, 1 Md. Ch. 296 ; but see Mitohener v. Atkinson, 
 Phil. Eq. 23. 
 
 In Traey v. Murray, 44 Mich. 109, the Supreme Court of Michigan re- 
 viewed the authorities on the subject, and Maeston, C. J., after stating 
 the English rule, and examining Burridge v. Bradly, 1 Peere Williams, 127 ; 
 Davenhill v. Fletcher, Ambl. 244 ; and Blomer v. Moviet, 2 Ves. 420, said : 
 " If we adopt the view of the early English decisions, the creditors of the de- 
 ceased are left entirely at his mercy, subject only to the right to attack 
 the bequest as fraudulent. Accepting as correct the doctrine of those cases 
 which hold that the widow becomes a purchaser of the legacy by releasing 
 her dower, the contract is not a completed one until her acceptance of the 
 provision of the will after her husband's decease. Had he purchased from 
 his wife her dower, and given her his note therefor, upon his death such 
 obligation, if not paid, would simply become a claim against his estate, and 
 take its place, when proved against his estate, with the other allowed claims. 
 The husband, during his lifetime, wishing to make an asrangement to have 
 his wife release her dower interests in the lands of which he should die 
 seized, makes an offer therefor, which is not to be submitted to her for 
 
370 Thompson v. Moerovt. 
 
 acceptance until after his decease. If then accepted, the consideration to 
 be paid becomes a claim and charge against .the estate, and takes prece- 
 dence over the legacies. It is but a debt against the estate. If there are 
 sufficient assets to pay all the claims allowed against the estate in ftiU, the 
 widow receives the full amount of her claims ; if not, she receives her pro 
 rata with the other creditore." 
 
 Where the widow accepts the provisions of a will, she has no equity to 
 charge the amount bequeathed her upon land devised to others, Paxson v. 
 Potts, 3 N. J. Eq. 313. 
 
 Where a condition is attached to a provision or devise in lieu of dower, 
 the condition must be observed, CoUim v. Woods, 63 111. 285 ; and if the 
 widow forfeit the estate devised to her by her voluntary violation of the 
 condition, she will not be entitled to be relieved by a revival of her claim 
 for dower, Taylor v. Birmingham, 29 Pa. St. 306 ; Gough v. Manning, 26 
 Md. 347. 
 
 Failure of Provision. 
 
 When the provision or devise made and accepted fails, as by its being 
 taken to pay the debts of the testator, the right of dower is revived. Mor- 
 row V. Morrow, 3 Tenn. Ch. 532 ; Gist v. GatteU's Heirs, 2 Desau. 53 ; Grif- 
 Jith V. Griffith's Exrs., 4 Har. & McH. 101 ; Coomes v. Clements, 4 Har. & 
 J. 480 ; Chew v. President of Farmer's Bank, 9 Gill 361 ; and the failure 
 need not be total ; it is sufficient that it be of a substantial part of the 
 provision, Hastings v. Clifford, 32 Me. 132. 
 
 In Thomas v. Wood, 1 Md. Ch. 286, a failure which reduced the value 
 of the provision to below that of dower, was held sufficient to entitle the 
 widow to compensation by way of dower. 
 
 Bar by Joinder of Wife In Husband's Deed. 
 
 The only way in which, formerly, dower could be barred by the act of 
 the wife, in her husband's lifetime, was by levying a fine alone, or by joining 
 with her husband in a fine and recovery, Portington's Case, 10 Co. 43; 
 Lampel's Case, Id. 49 ; but these methods seem never to have obtained in 
 this country, and there soon sprang up the custom of barring dower by the 
 wife joining in her husband's deed, with a view thereby to bar her dower. 
 This, which is recognized as an exceptional exercise of power by the wife 
 by Story, J., in Powell et ux. v. Monson and Brimfield Manufacturing Co., 
 3 Mason 347, existed from an early time in Massachusetts, Fowler v. Shearer, 
 7 Mass. 14, has become the custom throughout the Union, and is recognized 
 
Thompson v. Morrow. 371 
 
 and established by statute in many of the States. See Illinois, Rev. St., Ch. 
 30, § 17, p. 268 ; Alabama, Code (1876), Pt. 2, Tit. 3, Ch. 2, Art. 1, § 2234 ; 
 Missouri, Eev. St.,Vol. 1, Ch. 20, §669, p. 109; Nebraska, Comp. Laws, Ch. 
 73, § 43 (but in this State joinder is not necessary, and the wife may bar 
 her dower by her separate deed) ; Maine, Rev. St. (1871), Tit. IX., Ch. 
 103, §6, p. 757; Maryland, Rev. Code (1878), Tit. XXV., Art. 51, §80; 
 Michigan, Pub. Acts 1877, § 13, p. 52; Rhode Island, Tit. 20, Ch. 166, § IJ, 
 p. 423 ; South Carolina, Ch. 83, §§ 1, 2, 3, p. 429 ; New Jersey, Rev. of 
 1877, p. 155, pi. 9 ; Wisconsin, Rev. St., Ch. 100, § 2222 ; Oregon, Sts., Ch. 
 17, § 18 ; Massachusetts, Ch. 124, § 6 ; North Carolina, Bat. Rev., Ch. 117, 
 § 5 ; and where a statute provides for the relinquishment of dower, it is 
 regarded as a substitute for the fine and recovery, and its relinquishments 
 must be substantially complied with, O'Ferrall Y.Simplot, 4 Iowa 381. 
 
 The usual way, .in Massachusetts, of barring dower by deed, is said, by 
 Parsons, C. J., in Fowler v. Shearer, supra, to have been by introducing the 
 wife, at the close of the deed, as expressly relinquishing all claim to dower 
 in the premises conveyed, and by her executing the deed with her husband. 
 
 Deed must Show Intention to Bar Dower. 
 
 The mere joinder of the wife in the deed of her husband, when the deed 
 contains no words manifesting an intent that the dower should be barred 
 thereby, will not be a release of the wife's dower to the purchaser, Catlin 
 v. Ware, 9 Mass. 218 ; Davis v. Bartholomew, 3 Ind. 485 ; Lothrop v. Foster, 
 51 Me. 367 ; Lufkin v. Curtis, 13 Mass. 223 ; even where the deed contains 
 a warranty, Stevens v. Owen, 25 Me. 94 ; and see Westfall v. Lee, 7 Iowa 1 2. 
 
 Merely signing and sealing the deed of the husband do not sufiiciently 
 manifest an intent to bar dower, Gox y. Wells, 7 Blackf. 410 ; the law, how- 
 ever, is otherwise in New Hampshire, Dustin v. Steele, 21 N. H. 431 ; Burge 
 V. Smith, Id. 832. 
 
 The deed will not bar dower where the wife's signature is said to be in 
 " token of assent," Leavitt v. Lamprey, 13 Pick. 382 ; or " in token of free 
 consent," Stevens v. Owen, 25 Me. 94 ; or where the wife merely signs and 
 joins in the covenants, Davis v. Bartholomew, 3 Ind. 485 ; but it is held 
 otherwise in Iowa, Edwards v. Sullivan, 20 Iowa 500 ; or where the wife is 
 mentioned only in the clause describing the parties to the deed, and in the 
 attesting clause, the covenants being by the husband alone, and no terms 
 are employed which touch dower. Garter v.Goodin, 3 Ohio St. 75; McFar- 
 land V. Febiger's Heirs, 7 Ohio 194. 
 
 It is not necessary that dower be mentioned by name ; it is suflScient if, 
 in the deed, expressions are used that will cover it ; thus in Gillilan v. * 
 
372 Thompson v. Moebow. 
 
 21 N. Y. S. C. 574, a deed granting " all the estate, right, title, interest, 
 property, possession, claim, and demand whatsoever, as well at law as in 
 equity of the said parties of the first part," and signed by husband and 
 wife, was held sufficient to bar the wife% dower. 
 
 Uniting in the grantor's part of the deed is sufficient to bar dower, Smith 
 V. Handy, 16 Ohio 191 ; and proper words of grant need not be used where 
 the attestation clause recites that the deed is signed by the wife in testi- 
 mony of her release of dower, Stearns v. Swift, 8 Pick. 532 ; Frost v. Deering, 
 21 Me. 156; Learned v. Cktler, 18 Pick. 9 ; Usher v. Richardson, 29 Me. 415. 
 
 Statutory Provisions as to Execution and Acknowledgment. 
 
 In Alabama, the deed in which the wife joins to bar her dower must be 
 executed iu the presence of two witnesses, who must attest the same. Code 
 (1876), Pt. 2, Tit. 3, Ch. 2, § 2234. 
 
 In several States, there are statutory provisions that the wife's signature 
 must be acknowledged before a proper officer, Michigan, Comp. Laws, Vol. 
 2, T. XXII., C. CLL, §4281 ; Wisconsin, Rev. St., Ch. 100, §2222; Ne- 
 braska, Comp. St. (1881), Part. 1, C. 23, § 12 ; Oregon, Ch. 17, § 13, p. 585 ; 
 New Jersey, Eev. of 1877, p. 155, pi. 9; South Carolina, Ch. 83, §§1, 2, 3, 
 p. 429 ; Missouri, Eev. St., Vol. 1, Ch. 29, § 2197 ; Illinois, R. S., Ch. 30, 
 § 19, p. 268 ; and in some it is required that the wife be separately exam- 
 ined, in order to ascertain whether the deed is executed by her of her 
 own free will, and without compulsion on the part of her husband. South 
 Carolina, Ch. 83, §§ 1, 2, 3, p. 429 ; and see Gough v. Walker, 1 Nott. & McC. 
 469; Delaware, Rev. Code (1874), Ch. LXXXIIL, §4; Florida, McClell. 
 Dig., Ch. 95, § 14 ; North Carolina, Bat. Rev., Ch. 117, §5. Separate exam- 
 ination is declared, by statute, unnecessary in Maryland; see Rev. St. 
 (1878), Tit. XXV., Art. 51, § 30, p. 483. 
 
 In general, it may be said, that where the conveyance of the real estate 
 of a married woman is regulated by statute, and there is no especial stat- 
 utory regulation of the conveyance of dower, a deed which sufficiently 
 complies with the requirements of the statute to pass the land of the mar- 
 ried woman will be a good conveyance in bar of her dower. 
 
 Where an acknowledgment is required by the statute, the requirement is 
 not a mere directory enactment, but one which constitutes the acknowledg- 
 ment a substantial part of the deed ; and a conveyance, joined in by the 
 wife, but having a defective acknowledgment, will not take efiect so as to 
 bar the wife's dower, Kirh v. Dean, 2 Binn. 341 ; Moore v. Thomas, 1 Oreg. 
 201 ; Sheppard v. Wardell, Coxe 452 ; Elliott v. Piersol, 1 Pet. 328 ; Hepburn 
 V. Dubois's Lessee, 12 Id. 345 ; Stidham v. Matthews, 29 Ark. 650 ; but in Iowa 
 
Thompson v. Morrow. 873 
 
 the law is held to be that a defective acknowledgment will not prevent the 
 operation of the deed between the parties thereto, Lake v. Gray, 30 Iowa 415. 
 
 The same remark will apply where a separate examination is required ; 
 it is an essential part of the conveyance, Sheppard v. Wardell, supra; Fowler 
 V. McClurg, 6 S.&B.. US. 
 
 The certificate of acknowledgment need only show a substantial compli- 
 ance with the requirements of the act, Dundas v. Hitchcock, 12 How. 256 ; 
 Russell V. Rumsey, 35 111. 362 ; Hughes v. Lane, 11 Id. 123 ; Hughes v. 
 McKinsey, 5 T. B. Mon. 38 ; but it is not sufiicient that the requirements 
 have been complied with ; they must appear in the certificate, or be fairly 
 inferrable from it, Raverty v. Fridge, 3 McL. 230 ; Brovm v. Farran, 3 Ohio 
 142 ; Owen v. Paid, 16 Ala. 130. 
 
 A certificate of the proper ofiicer, that the wife, "she being examined by 
 me as the law directs, voluntarily relinquished " her dower, has been held 
 sufficient, upon the principle of omnia proBsumuntur rite et selenniter esse 
 ada ; and see Watson v. Clendenin, 6 Blackf. 477 ; Stevens v. Doe d. Henry, 
 Id. 475 ; but a certificate which does not state that the wife relinquished 
 dower, has been held incurably defective even in equity, Russell v. Rumsey, 
 35 HI. 362. And so a certificate which stated simply that the wife, being of 
 iuU age, had been separately and apart from her husband examined, and 
 acknowledged the instrument to be her act and deed, has been held defec- 
 tive, as not showing that the wife acted without the coercion or compulsion 
 of her husband, Fowler v. McClurg, 6 S. & E. 143. 
 
 The certificate must show that the wife has been separately examined, 
 Clarh v. Redman, 1 Blackf. 379 ; Rogers v. Woody, 23 Mo. 548 ; Elwood v. 
 Klock, 13 Barb. 50 ; Sheppard v. WardeU, Coxe 452 ; and it has also been 
 held that a certificate which does not show that the wife was acquainted 
 with the contents of the deed by which she released dower, was fatally de- 
 fective, OFerrall v. Simplot, 4 Greene (Iowa) 162 ; Connell v. Connell, 6 
 Ohio 353 ; Lessee of Good v. Zercher, 12 Id. 364. The Ohio cases have, 
 however, been overruled by Chesnut v. Shane's Lessee, 16 Ohio 699. 
 
 It has also been held that the certificate must show that the person re- 
 leasing dower was known to the officer taking the acknowledgment, Gove 
 V. Gather, 23 111. 634. 
 
 The absence of an official seal, where one is required by law, is a fatal 
 defect in a certificate, Watson v. Clendenin, 6 Blackf. 477. 
 
 Kecord evidence of acknowledgment is indispensable, Tomlins v. Mo- 
 Chord's Rep., 5 J. J. Mar. 135 ; Ellwood y.Klock, 13 Barb. 50 ; the acknowl- 
 edgment cannot be shown by parol or the certificate be amended thereby. 
 Id. O'Ferrall v. Simplot, supra; Watson's Lessee v. Bailey, 1 Binn. 470; 
 Barnet v. Barnet, 15 S. & R. 73 ; Elliott v. Piersol, 1 Pet. 339. 
 32 
 
374 Thompson v. Mokeow. 
 
 Constitutionality of Acts assuming to Cure Defective Acknowl- 
 edgments. 
 
 Where, after a defective acknowledgment, the Legislature has passed a 
 curative act, the constitutionality of such act has been drawn into ques- 
 tion. 
 
 In Tate v. StooUzfoos et al.,16 S. & K. 35, such an act came before the Su- 
 preme Court of Pennsylvania, and its constitutionality was upheld. Dun- 
 can, J., in delivering the opinion of the Court, said : " The general rule is 
 that all laws are in their nature prospective ; yet this does not prohibit the 
 Legislature from passing some laws which have a retrospective operation, 
 where the laws do not impair the obligation of contracts, or are not ex post 
 facto (ex post facto laws relate to crimes only). Every confirmatory act is, in 
 its nature, retrospective, and in the opinion of this Court, delivered in Under- 
 wood V. Lilly, 10 S. & K. 101, it is stated ' that confirming acts are not uncom- 
 mon. Deeds acknowledged defectively, by femes covert proceedings, and 
 judgments of commissioners and justices of the peace, who were not commis- 
 sioned, agreeably to the Constitution, or when their power ceased on the 
 division of counties until a new appointment. Retrospective laws which 
 only vary the remedies, divest no right, but merely cure a defect in pro- 
 ceedings otherwise fair, the omission of formalities, which do not diminish 
 existing obligations, contrary to their situation, when entered into. These, 
 and several like acts, are clearly constitutional.' I have seen no reason to 
 change that opinion. I will just add, that it is an abuse of terms to con- 
 tend that this is an act divesting vested rights. Such acts would be odious 
 and unjust as well as unconstitutional ; for it is not intended, by a vested 
 right, that it shall be a right to do wrong ; to take advantage of a mere 
 slip in form, when the transaction is a bona fide one, and to avoid an honest 
 conveyance, fairly acknowledged, in the hands of an innocent purchaser." 
 And see Raverty v. Fridge, 3 McL. 230 ; Watson v. Mercer, 8 Pet. 109 ; Ches- 
 nut V. Shane's Lessee, 16 Ohio 599. 
 
 In Russell v. Rumsey, 35 111. 362, however, it was held that a curative 
 act would not have the efiect of making an anterior conveyance, defectively 
 acknowledged, a bar ; the Court holding that dower, though inchoate, was 
 " a vested, although imperfect, and contingent right." The same doctrine 
 was held in the Lessee of Good v. Zereher, 12 Ohio 364, overruled in Ches- 
 nut V. Shane's Lessee, supra. 
 
 Bar by Separate Deed of Wife. 
 
 In Fowler v. Shearer, 7 Mass. 14, it was said, by Paesons, C. J., that the 
 wife might bar her dower, either by joining with her husband, or by her 
 
Thompson v. Moreow. 375 
 
 separate deed, executed subsequently to the conveyance, and reciting the 
 sale as the consideration for the release of dower. This, however, is in the 
 face of the great mass of the authorities, which hold a subsequent separate 
 deed of the wife ineffectual, thus making no distinction between it and one 
 executed by her without her husband, while he still remained seized of the 
 property in which dower is released, Vlp v. Campbell, 19 Pa. St. 361 ; Dodge 
 V. Aycrigg, 1 Beas. Eq. 82 ; Moore v. Rake, 2 Dutch. 574 ; Page v. Page, 6 
 Cush. 196; Shaw v. Rms, 14 Me. 432; French v. Peters, 33 Me. 396; Moore 
 v. Tlsdale, 5 B. Mon. 352 ; Marvin v. Smith, 46 N. Y. 571 ; Slidham v. 
 Matthews, 29 Ark. 650; but such a release has been held good, Ela y.Card, 
 2 N. H. 175 ; Shepperd v. Howard, Id. 507, in which latter case the Court 
 gave as a reason for excepting such a separate deed of a married woman 
 from the general rule which declares her deeds not joined in by her hus- 
 band to be void, that " no interest of the husband is affected by the deed ; 
 it can have no operation during his life ; and while a wife is permitted, by 
 joining in a deed with her husband, to bar her right of dower, there seems 
 to be no reason why she should not be permitted to release her right by a 
 separate deed." 
 
 It is submitted, however, that the void character of the deed arises from 
 the disability which the law, for her own protection, imposes upon the wife, 
 and not from a desire to protect the rights of the husband ; and a case may 
 be well imagined, where a husband, exercising his judgment for the benefit 
 of his wife, would be very willing to sell and convey all of his own interest 
 in his land, and yet be unwilling to have his wife deprived of the support 
 after his death, assured to her by the law. 
 
 In Oshom v. Oshorn, 19 111. 124, it was held, that the disability under 
 which the wife is from a second marriage, will prevent her releasing dower 
 in the land of her first husband without the assent of her second ; and see 
 also Bailey \.West, 41 111. 290. 
 
 In Alabama, by the Code (1876), Pt. 2, Tit. 3, Ch. 2, Art. 1, §2234, p. 
 578, it is provided that a wife may, by her separate deed, release dower to the 
 alienee of land conveyed by her husband ; and see Robinson v. Moon, 56 
 Ala. 241 ; a like rule prevails in Michigan, Pub. Acts. 1877, § 13, p. 52, 
 when the intent to bar the dower is expressed in the deed. 
 
 Acknowledgment by Husband and Wife on Different Days does 
 not Destroy the Joint Character of the Deed. 
 
 The acknowledgment of the husband and wife may be taken on different 
 days, Williams v. Robson, 6 Ohio St. 510, or the joint deed may be executed 
 by them on different days. Frost v. Deering, 21 Me. 156 ; and the deed 
 
376 Thompson v. Moeeow. 
 
 ■will be joint, and a good bar of dower ; and where, on the same paper, but 
 under the signatures, the wife executes a release of dower, it will be con- 
 sidered as one with the body of the deed, and, hence, as constituting a good 
 bar, Dundas v. Hitchcock, 12 How. 256. 
 
 Bar when Husband Is Insane. 
 
 The joinder of the wife ra a conveyance by the guardian of an insane 
 husband, acting under an order of court, will bar her dower in the prop- 
 erty conveyed, Rannells v. Gerner, 9 Mo. App. 506 ; so, also, will her joinder 
 with her husband's duly constituted attorney, Glenn v. Bank of the United 
 States, 8 Ohio 72. 
 
 When Wife is an Infant. 
 
 In the absence of statutory enactments giving her the power, an infant 
 feme covert is not able to bar her dower, Hughes v. Watson, 10 Ohio 127 ; 
 Bool V. Mix, 17 Wend. 119 ; Adams v. Palmer, 51 Me. 480 ; Oldham v. Sale, 1 
 B. Mon. 76 ; Priest v. Cummings, 16 Wend. 617 ; Sanford v. McLean, 3 Paige 
 117 ; and, although the deed is executed with all formalities, she may, on 
 coming of age, avoid it ; and it is held that she may do so without any 
 specific act disaffirming her deed before bringing suit, Hughes v. Watson, 
 supra ; Brake v. Ramsay, 5 Ohio 252. 
 
 By statute, in some States, a married infant is permitted to release or 
 convey her dower, Alabama Code (1876), Pt. 2, Tit. 3, Ch. 2, Art. 1, §2236; 
 see Robinson Y.Moon, 56 Ala. 241 ; Maine, Kev. St., Tit. IX., Ch. 103, §6, 
 p. 757 ; see Adam^ v. Palmer, 51 Me. 480 ; and in Maryland, it is provided 
 that she may join with her husband in a lease or conveyance, and if the 
 Court of Equity shall deem such lease or conveyance equitable, expedient, 
 or proper with respect to the dower, it may adjudge that the deed shall be 
 of like effect as if the feme covert were of full age, Kev. Code (1878), Tit. 
 XXVI., Art. 66, § 105, p. 651. 
 
 Where Deed is Executed by Attorney for Wife. 
 
 As a married woman could not, at common law, act by attorney, so a 
 deed, executed by virtue of a power of attorney, given by her, and as to 
 which she was privately examined, will not bar her dower, Lewis v. Coxe, 
 5 Harring. 401 ; but such conveyance/* by a married woman, by power of 
 attorney, is expressly permitted in Missouri, Rev. St., Ch. 20, § 670, p. 110 ; 
 and in any State in which a married woman is permitted to act, generally. 
 
Thompson v. Morrow. 377 
 
 by attorney, a deed executed by her duly constituted attofney •will have 
 the effect of barring dower. 
 
 By Wife who has been Deserted by her Husband. 
 
 A wife, who has been deserted by her husband, may, after the presump- 
 tion of the husband's death has arisen, bar her dower by joining with his 
 children in a conveyance of his land, Rosenthal v. Mayhugh, 33 Ohio St. 
 155 ; and in New Jersey, by statute, a woman living separate from her 
 husband, by virtue of a decree obtained on her application, and entitled to 
 ahmony, may release her dower by separate deed, Kev. of 1877, p. 639, 
 pi. 17. 
 
 Bar of Dower of Insane Wife. 
 
 An insane woman, of course, cannot make a deed, and, therefore, her 
 joinder in the deed of her husband will not bar dower. In Ex parte 
 MeElwain, 29 111. 442, a petition was presented setting forth the petitioner's 
 wife's insanity, and praying the Court to appoint a suitable person to exe- 
 cute a conveyance which should bar her dower in land which the peti- 
 tioner had sold, the Court refused the petition with strong expressions of 
 disapprobation. 
 
 In many States, however, the case of an insane wife has been provided 
 for by statutes, by virtue of which, on a petition being presented, the Court 
 will order a conveyance to be made, by the guardian or committee of the 
 lunatic, barring dower, a proper provision having been made for the wife's 
 support. See Illinois, Eev. St., Ch. 68, §§ 17, 18, p. 593 ; Wisconsin, Rev. 
 St., Ch. 100, Tit. 21, §§ 2225, 2226, p. 638 ; Missouri, Rev. St., Vol. 1, Ch. 29, 
 § 2235, p. 371 ; Ohio, Eev. St., Tit. 1, Div. 7, Ch. 7, § 6725 ; West Virginia, 
 Rev. St., Ch. 112, §10, p. 729 ;,VirgiQia, Code, Tit. 36, Ch. 124, p. 933; 
 Massachusetts (1882), Ch. 147, §§ 20, 21, p. 821 ; Michigan, Laws 1873, 
 Vol. I., p. 479. 
 
 It seems, however, that the guardian of a lunatic wife will not ex mero 
 officio have authority to join in a deed of the husband so as to bar dower, 
 Eslava v. Lepretre, 21 Ala. 504. 
 
 In those States where no especial provision is made whereby the dower 
 of an insane woman can be barred, it is thought that the statutes which 
 provide for the sale of the real estate of an insane person, will be construed 
 so as to cover the case of a wife's inchoate dower. Thus in Pennsylvania, 
 under the Act of April 11, 1866, P. 1. 780, Pur. Dig., Vol. 2, p. 985, in 
 an unreported case, in which one of the editors of the present work was 
 of counsel, the husband of a lunatic was allowed, by a decree, to convey 
 32* 
 
378 Thompson v. MoEEOVf, 
 
 a piece of lafld free of dower, the Court being first satisfied of the hus- 
 band's ability to properly provide for his wife, and directing him to enter 
 into a bond to secure her support, In Be Petition of Bailley, Com. Pleas; 
 Phila., No. 4, June T., 1877, No. 609. 
 
 Dower cannot be Barred by Parol. 
 
 The -wife will not be barred of her dower by a parol relinquishment, 
 Davis V. McDonald, 42 Ga. 205, no matter how formally made or certified, 
 Worthington v. Middleton, 6 Dana 300 ; for, as it is an estate, or, at least, 
 an interest, for life in land, the statute of frauds will prevent its being re- 
 leased or discharged, except by some instrument in Avriting, Garnall v. Wil- 
 son, 21 Ark. 62 ; Keeler v. Tatnell, 3 Zab. 62 ; White v. White, 1 Harr. 
 (N. J.) 202 ; Davis v. McDonald, 42 Ga. 205 ; and an agreement to release 
 dower cannot be shown by parol, so as to give efiect,- as a bar of dower, to 
 a deed joined in by the wife and husband, which does not contain words 
 apt to cover dower, Lothrop v. Foster, 51 Me. 367, and see Harrison v. Car- 
 roll, 11 Leigh. 476; but an agreement by parol, made by the wife after 
 her husband's death, and while she is under no disability, by which she 
 is to receive a certain sum in lieu of dower, followed by an actual 
 receipt thereof, may be sustained in equity as a good bar of dower, 
 Warfield v. Castleman, 5 T. B. Mon. 517 ; Simpson's Appeal, 8 Pa. St. 
 109 ; and the Supreme Court of Kentucky has even gone farther, and 
 in Connelly v. Bransiter, 3 Bush. 702,, where, at a sale of her husband's 
 land, the wife had publicly announced that she would not claim dower as 
 against the purchaser, she was held estopped from claiming it. Robert- 
 son, J., remarking that " the disability of coverture could not exonerate 
 against fi-aud." 
 
 It may well be questioned, however, whether this last case can be re- 
 garded as authority, since disability is not to be considered as a privilege 
 to be set up by the disabled person, or of which she may be deprived by 
 her dishonesty. The books are full of cases to the effect that fraud will not 
 give a power to a married woman which she had not by reason of her cov- 
 erture; and in McFarland v. Febiger's Heirs, 7 Ohio 194, the Court even 
 went to the extent of holding that where a married woman joined in a 
 deed which she believed to be (and which was) inoperative as to herself, 
 and kept silent as to her knowledge, she was not estopped by her fraud from 
 claiming dower. In the language of the Court : " Whatever might be the 
 effect of such conduct in one acting in her own right, it cannot be imputed 
 as a fraud to a married woman, disabled to contract except upon one subject, 
 and that only in prescribed form." 
 
Thompson v. Morrow. 379 
 
 Deed Defective as to Husband Creates no Bar. 
 
 If the deed, in which the wife joins to bar her dower, is defective as to 
 the husband, her dower will not be barred thereby ; but her conveyance, 
 which is merely to attend that of her husband, will fall with it, Kay v. 
 Jones, 7 J. J. Mar. 3». 
 
 Release of Dower by Wife to Husband. 
 
 A release of dower by the wife to her husband is void whether made by 
 a deed to him, Carson v. Murray, 3 Paige 483 ; Pillow v. Wade, 31 Ark. 
 678 ; Countz v. Marhling, 30 Id. 17 ; Wilher v. Wilher, 52 Wise. 298, or 
 by a deed tripartite, to which the husband, wife, and a trustee for the wife 
 are parties, by which, in consideration of the wife's having the enjoyment 
 of her property, dower is relinquished, Townsend v. Townsend, 2 Sand. 711. 
 In the case of Hobertson v. Robertson, 25 Iowa 350, it was held that under 
 Section 2215 of the Iowa statutes, the wife might release dower to her hus- 
 band ; but this case seems to be overruled by MeKee v. Reynolds, 26 Id. 
 578, which makes no mention of the statute, but holds on general prin- 
 ciples a doctrine contrary to that of Robertson v. Robertson. Where, how- 
 ever, the wife has received a consideration for her release, and continues to 
 hold the same after the death of her husband, she will not be allowed to 
 retain both consideration and dower, and her continued holding of the 
 former for any considerable length of time, Lively v. Paschal, 35 Ga. 218, 
 or an attempt to enforce it, Stoddard v. Cutcom.pt, 41 Iowa 329, or, in the 
 case of an annuity being the consideration, its continued receipt after the 
 husband's death, Eioans v. Euans, 3 Yeates 507, will be regarded as an elec- 
 tion, after the husband's death, to take a settlement in lieu of dower. 
 
 The feet that the wife is living apart from her husband will not make 
 valid her release to him, Eoans v. Evans, supra ; in New Jersey, however, 
 a woman living separate from a husband by virtue of a decree obtained by 
 her, and entitled to alimony, may make such a release. Rev. of 1877, p. 
 639, pi. 17. 
 
 Release of Dower by Separation Agreement. 
 
 It has been held that an agreement between husband and wife, by the 
 terms of which they are to live separate, and the wife, either in considera- 
 tion of the separation or of the payment of a sum of money, surrenders 
 her dower, and each party gives up all right in the estate of the other, 
 wUl not bar the wife's dower, Stephenson v. Osborne, 41 Miss. 119 ; Guidet 
 Y.Brown, 54 How. Pr. 409, S. C. 3 Abb. N. C. 295 ; Carson v. Murray, 3 
 
380 Thompson v. Morrow. 
 
 Paige 483 ; and the law is the same, although the wife is represented by 
 a trustee, Stephenson v. Osborne, supra; but a separation agreement, whereby, 
 in consideration of the transfer of certain property to the use of the wife, 
 her trustee undertook to indemnify the husband against any claim of 
 dower, has been held good as against the trustee, Gaines' Admx. v. Poor, 
 3 Met. (Ky.) 503. 
 
 And there are authorities which sustain a surrender of dower in a 
 separation agreement, DiUinger's Appeal, 35 Pa. St. 357 ; miner's Appeal, 
 54 Id. 110 ; but such an agreement must be in definite words under seal, and 
 must contain words aptly referring to dower, Walsh v. Kelly, 34 Pa. St. 84 ; 
 and it seems that to uphold the agreement of separation its object must be 
 an actual and immediate, and not a contingent or future, separation, Hutton 
 V. Sutton's Admr., 3 Pa. St. 100. 
 
 Release by Wife after Divorce. 
 
 After a divorce, which severs the legal unity and relieves the wife from 
 the presumption of the control of her husband, she may release her dower 
 to her late husband. Savage v. Orill, 26 N. Y. S. C, 4. Affirmed by Court 
 of Appeals on the opinion of the Court below, Feb. 3, 1880. 
 
 Release must be to the Owner of the Title to the Land or to One 
 in Privity therewith. 
 
 A release of dower to be of effect must be made to one having title or 
 being in privity with the title to the land, and therefore a release to a 
 stranger or to a vaidee after he has parted with his title, except where he 
 is in privity by a covenant of warranty, will not be a bar of dower in favor 
 of any one, Harriman v. 0^'ay, 49 Me. 537 ; and see Reiff v. Horst, 55 Md. 42. 
 
 Consideration Supporting Release of Dower. 
 
 A consideration moving to the husband alone will be sufficient to support 
 a release or renunciation of dower, Bailey v. LiUen, 52 Ala. 282. 
 
 Release of Dower a Valid Consideration. 
 
 The release of her dower is, even as against creditors, a sufficient consid- 
 eration for a deed of land in fevor of the wife, Singree v. Welch, 32 Ohio 
 St. 320 ; Harvey v. Alexander, 1 Eand. 219 ; Ellinger v. Orowl, 17 Md. 361 ; 
 Bullard v. Briggs, 7 Pick. 533 ; Bick v. Hamilton, Deady 322 ; Wright v. 
 Stanard, 2 Brock. 211 ; or a settlement upon her. Hoot y.Sorrell, 11 Ala. 
 
Thompson v. Morrow. 381 
 
 386 ; William and Mary College v. Powell, 12 Gratt. 372 ; Ward v. Crotty, 
 4 Met. (Ky.) 59 ; Taylor v. Moore, 2 Rand. 563 ; or a promissory note given 
 to her, Caldwell v. Bower, 17 Mo. 564 ; Nims v. Bigelow, 45 N. H. 343 ; 
 Motley V. Sawyer, 38 Me. 68 ; and the difficulty of estimating the value of 
 a dower right is so great that almost any consideration therefor, where 
 fraud is not shown, will be sustained, Singree v. Welch, Hoot v. Sorrell, Mot- 
 ley V. Sawyer, supra. Where, however, the value of a settlement by a 
 debtor upon his wife is grossly disproportionate to that of the dower re- 
 leased by the wife, such disproportion may be considered as evidence of 
 fraud, and there are cases in which it is held, independently of the question 
 of fraud, that where the value of the settlement upon the wife is proved 
 to be in excess of the value of the dower released, the settlement will be 
 voidable by existing creditors so far as the amount in excess of the value 
 of the dower is concerned. See Ward v. Grotty, supra; Garliek x. Strong, 
 3 Paige 440 ; Taylor v. Moore, 2 Rand. 563 ; William and Mary College v. 
 Powell, supra ; Patrick v. Patrick, 77 111. 555. 
 
 Eft'ect of Release of Dower. 
 
 Upon the question of the eifect of the release of dower by joinder of the 
 wife in the deed of the husband, the authorities are not united. In Elmen- 
 dorf V. Lockwood, 4 Lans. 393, 57 N. Y. 322, it is held that the effect is to 
 extinguish dower for all purposes whatever. On the other hand, it is held 
 that the release acts by way of estoppel, and therefore takes effect only in 
 favor of parties and privies, French v. Lord, 69 Me. 537 ; French v. Crosby, 
 61 Id. 502 ; KitzmiUer v. Van Rensselaer, 10 Ohio St. 63 ; Robinson v. Bates, 
 3 Met. 40 ; Ridgway v. Masting, 23 Ohio St. 294 ; and in Llttlefield v. Crocke, 
 30 Me. 192, where a mortgage in which the wife had not joined was fore- 
 closed, and after the execution of the mortgage the wife had joined in a 
 release of dower to the assignee of the equity of redemption, it was held 
 she was not barred as against the mortgagee ; and see McMahon v. Russell, 
 17 Fla. 698. But in Johnson v. Van Velsor, 43 Mich. 109, where a wife 
 joined in an absolute deed of property which had been mortgaged by her 
 husband, and afterwards purchased the same property, it was held that in 
 a suit on the mortgage she could not claim dower. In McKee v. Brown, 43 
 111. 130, one A. being charged with crime entered bail, and to secure his 
 bondsmen he and his wife conveyed land to them. A. made default, his 
 recognizance was forfeited, and to relieve the bailsmen the land was con- 
 veyed to the city, but the forfeiture of bail being claimed by the school 
 commissioners, the Court ordered the deed for the land to be made to them ; 
 the wife was held estopped to claim dower as against their alienee. 
 
382 , Thompson v. Morrow. 
 
 Agreement to Release Dower. 
 
 An agreement to release dower is not equivalent to a release, White v. 
 White, 1 Harr. (N. J.) 202. 
 
 Effect of Setting aside Deed in Fraud of Creditors. 
 
 Where the husband and wife unite in a deed to a third party in, fraud 
 of creditors, and the deed is afterwards set aside as fraudulent, the wife's 
 right to dower will revive, Summers v. Babb, 13 111. 483 ; Robinson v. Bates, 
 3 Met. (Mass.) 40 ; Loekett's Admr. v. James, 8 Bush. 28 ; Loimry v. Fisher, 
 2 Id. 70 ; Dugan v. Massey, 6 Id. 81 ; Woodworth v. Paige, 5 Ohio St. 70 ; 
 Miller V. Wilson, 15 Ohio 108 ; Cox v. Wilder, 2 Dillon 45 (reversing 8. C. 
 5 N. B. R. 443) ; Wyman v. Richardson, 62 Me. 298 ; Ridgway v. Masting, 
 23 Ohio St. 294. The same is the case where a fraudulent settlement upon 
 the wife is set aside, Davidson v. Graves, 1 Bail. Eq. 268 ; Belford v. Crane, 
 16 N. J. Eq. 265 ; this case overrules Den ex d. Stewart v. Johnson, 3 Har- 
 rison 87, unless the remarks of the chancellor in giving judgment, " No 
 actual fraud is imputed to the wife. Her interest in the property as against 
 her husband's creditors will be secured to her to the extent of the value 
 of her dower," be regarded as showing an intention of the Ck)urt to make 
 a distinction between a case in which a wife was merely a passive instrument 
 and one in which she actually co-operated as a fraud. This distinction, it 
 is submitted, is one which can hardly be maintained, and which we do not 
 believe the learned chancellor intended to make. 
 
 In New York the law was for a time thought to be otherwise. See 
 Manhattan Co. v. Eoertson, 6 Paige 457 ; Meyer v. Mohr, 1 Robt. 333 ; and 
 in Moloney v. Horan, 53 Barb. 29, the Supreme Court, in one of the depart- 
 ments, declared the law as follows: " When the deed of the husband has 
 been avoided at the suit of the creditors, on the ground that it was made 
 with intent to hinder, delay, or defraud them, there remains an estate in 
 the fraudulent grantee which is sufficient to support or feed this estoppel, 
 for the fraudulent deed is good as between the parties to it. . . . Whatever 
 consequence may ensue from the proceedings of the creditors in invitmn, for 
 the enforcement of their remedy upon the estate fraudulently conveyed, is 
 attributable to the statute which in conjunction with the decree acts directly 
 upon such estate, and divests so much thereof only as may be necessary to 
 obtain satisfaction of the claims of the creditors, and the wife's dower in 
 that portion of the estate so divested will be as eifectually barred as in the 
 part which may remain vested in the fraudulent grantee. There cannot, 
 in the nature of the case, be any severance, and so, if the whole estate be 
 taken away, this results from the enforcement of the remedy and not because 
 
Thompson v. Morrow. 383 
 
 the fraudulent deed conveyed nothing to the fraudulent grantee." The 
 decision of the Supreme Court was reversed on appeal in 49 N. Y. 111. 
 In giving judgment Folgee, J., said : " A release of dower can be availed 
 of, then, only by one who claims under the very title which was created by 
 the conveyance with which the release of dower is joined. But when a 
 creditor of the husband pursues him to judgment, and attacks as fraudu- 
 lent and sets aside as void the deed from him, joining in which the wife 
 has released her right of dower, he does not connect himself with the title 
 which that deed has created, and with which the release o:^ dower is con- 
 nected. He sets up the title of the husband as it existed before the fraudu- 
 lent conveyance, and stands in hostility to the title which it has given. 
 Not being a party to the release, or in privity with it, he may not set it up 
 in bar of dower." 
 
 To restore the right of dower, however, the fraudulent conveyance must 
 be set aside ; if left unattacked, the dower right is gone. Thus in Cantrill 
 V. Risk, 7 Bush. 160, where the deed was not set aside, but was made to 
 operate as an assignment for the benefit of creditors, the right of dower was 
 held still barred, and in Mann v. Edson, 39 Me. 25, where the deed was made 
 in fraud of creditors, and the husband took from the grantee a life lease, and 
 remained in possession until his death, the wife was held barred of her dower. 
 
 And where the title is lost through the laches of the grantee, the deed 
 not being set aside, the dower will still be barred, Martin v. Nohle, 57 
 111. 176. 
 
 On the setting aside of a fraudulent deed, in which the wife did not join, 
 but in which she had a contingent interest, which she asserted, she may 
 still have her dower, Blow v. Maynard, 2 Leigh. 29 ; and see Martin v. Lin- 
 coln, 4 Lea 289 ; and even where the fraudulent deed has been made to 
 the wife herself, and she has resisted its being set aside, and has not in pro- 
 ceedings to accomplish that end set up her dower, and it is nevertheless set 
 aaide, she may, notwithstanding, assert her rights, and obtain her dower in 
 subsequent proceedings, Humes v. Scruggs, 64 Ala. 40. 
 
 Recovery against Husband for Defective Title. 
 
 Where the wife joins her husband in a conveyance, and the grantee 
 afterwards recovers against the husband for a defect of title, the wife's 
 dower is revived, Stinson v. Sumner, 9 Mass. 148. 
 
 Joinder in a Licase. 
 
 A joinder by a wife in a lease will bar her dower only to the extent dS 
 and during the continuance of the lease, Chase's Case, 1 Bland. 206. 
 
384 Thompson v. Morrow. 
 
 Bar of Dower by the Adultery and Elopement of Wife. 
 
 By the statute of West. 2, cap. 34 (13 Edw. I., St. 1, c. 34), it is enacted 
 that " if a wife willingly leave her husband and go away, and continue with 
 her avoutrer, she shall be barred forever of action to demand her dower 
 that she ought to have of her husband's land, if she be convicted thereupon, 
 except that her husband willingly reconcile her, and suffer her to dwell 
 with him, in which case she shall be restored to her action." See Co. 
 Litt. 326. 
 
 This statute, or the law as stated by it, is practically in force in the 
 greater number of the United States. In some it has been recognized as. 
 interwoven into the common law of the State, and in others its protrisions 
 have been, with slight variations, formally enacted. See Sell v. Nealy, 1 
 Bail. 312 ; Heslop v. Heslop, 82 Pa. St. 537 ; Lecompte v. Wash, 9 Mo. 551 ; 
 Eeport of the Judges, 3 Biun. App. 606 ; Cogswell v. lAppett, 3 N. H. 41 ; 
 Shaffer v. Richardson's Admin., 27 Ind. 122 ; Ohio, Rev. St., § 4192, p. 1051 ; 
 South Carolina, Pt. 2, Tit. 1, Ch. 83, § 11, p. 431 ; West Virginia, Rev- St., C. 
 70, § 7, p. 500 ; Virginia, Code, 1873, Tit. 31, Ch. 106, § 7, p. 854 ; Illinois, 
 Rev. St., Ch. 41, § 15, p. 427 ; Kentucky, Gen. St., Ch. 52, Art. IV., § 3 ; 
 Georgia, Code, 1873, Pt. 2, Tit. 2, Ch. 1, Art. 2, §1764 ; Delaware, Rev. St. 
 1874, Ch. 87, § 9 ; North Carolina, Bat. Rev., Ch. 37, § 16, p. 367. In Virginia 
 and Delaware the statutes also deprive the wife of her dower where she 
 deserts the husband, and the desertion is not occasioned by his fault. In 
 Virginia, the fault must be such as would justify an application by the 
 wife for a divorce, supra. In North Carolina, the wife's misconduct will 
 not deprive her of her dower unless the husband has begun proceedings 
 for divorce. The statute. West. 2, Cap. 34, was in force in New York until 
 the adoption of the Revised Statutes of 1830, Reynolds v. Reynolds, 24 
 Wend. 193. 
 
 The essential parts of the offence which causes the wife to lose her dower, 
 are the adultery and the willing departure from the husband, or contiau- 
 ance with the adulterer. These the Supreme Court of North Carolina in 
 Walters v. Jordan, 13 Ired. Law 361, a case decided before the passage of the 
 law mentioned above, considered so essential that it would suffer no one of 
 them to be supplied by construction. Ruffin, C. J., said, " The adultery 
 need not be before leaving the husband or elopement with the adulterer, 
 and she may be carried away, and afterwards remain away in adultery, 
 and there will be a bar ; but if the husband find his wife in adultery and 
 drive her away, she does not lose her dower, for there must be a willing 
 leaving within the words of the statute." In this, Nash, J., concurred, 
 but Peaeson, J., dissenting, thought that her going away under such cir- 
 cumstances, should be considered a voluntary one, since the expulsion was 
 
Thompson v. Moerow. 385 
 
 a natural consequence of her misconduct, and should have been foreseen by 
 the wife. 
 
 The opinion of Peaeson, J., would seem more consonant to reason and 
 equity than that of the majority of the Court, and it was held in Stegall v. 
 StegalVs Admr., 2 Brock (U. S.) 256, that any separation was voluntary 
 which was not brought about by the husband, or by constraint of the wife's 
 person. In that case, a husband wished his wife to leave her father's home, 
 where she was living ; she refused, and the husband left her, and she after- 
 wards married another man. She was held to have forfeited her dower. 
 
 Where the husband by his ill-treatment, as by personal abuse, or by his 
 infidelity to the marriage relation, forces his wife to leave him, or wilfully 
 deserts her, the widow's dower is not barred, although she afterwards yield 
 to temptation and commit adultery, Rawlins v. Bvttel, 1 Houst. 224 ; Hes- 
 lop V. Heshp, 82 Pa. St. 537 ; Reel v. Elder, 62 Id. 308. In New York, the 
 bar was held to rest upon the living apart from! the husband, and not upon 
 the circumstances of the elopement, and that, therefore, the Court would 
 not take into consideration the provocation received by the wife, Reynolds 
 V. Reynolds, 24 Wend. 193, and this seems in accord with the English law 
 upon the subject. Woodward v. Dowse, 10 C. B. (N. S.) 722 ; Bostoch v. 
 Bmith, 34 Beav. 57. 
 
 If the husband, after having forced his wife to leave, invites her to re- 
 turn and she refuses to come, her dower is barred. Bell v. Nealy, 1 Bail. 
 312. 
 
 The elopement need not be with the adulterer. Reel v. Elder, 62 Pa. St. 
 308 ; and where the adultery is committed while the wife and husband are 
 living apart by the consent of the latter, her dower will be barred, McAl- 
 ister V. Nonenger, 54 Mo. 251. In Indiana it is held that the mere absence 
 of the wife from the husband, unaccompanied by adultery on her part, will 
 not deprive her of her right in her husband's land, Wiseman v. Wiseman, 
 73 Ind. 112. 
 
 The statute of West. 2, c. 34, is not in force, nor has its spirit been intro- 
 duced into the laws of Massachusetts, Lakin v. Lakin, 2 Allen 45 ; Rhode 
 Island, Bryan v. Batcheller, 6 R. I. 543 ; Iowa, Smith v. Woodworth, 4 Dillon 
 584. The reason generally assigned being that, as under the laws of this 
 country, a divorce a vinculo matrimonii could be obtained, on account of 
 the adultery of the wife, which divorce would be an effectual bar to dower, 
 there did not exist the same reason for constituting the elopement and 
 adultery, not followed by a divorce; such a bar as in England where, under 
 the common law, a divorce a vinculo matrimonii could be obtained only for 
 causes antecedent to the marriage. 
 
 In Maine, in the case of LiUlefield v. Paul, 69 Me. 527, the Supreme 
 33 Z 
 
386 Thompson v. Moeeow. 
 
 Court doubted whether the statute had ever been in force in that State, 
 and held that even if it had, it had been undoubtedly supplied by Rev. St., 
 Ch. 60, §§ 7, 8 ; Ch. 103, §§ 1, 6, 7, 8, 9, 10, and that, therefore, adultery 
 would not of itself bar the wife's dower. 
 
 In New York, the statute has not been in force since 1830 ; see ScMffer v. 
 Pruden, 64 N. Y. 47 ; Reynolds v. Reynolds, 24 Wend. 193. 
 
 In Minnesota, before the abolition of dower, it was forfeited if the wife 
 deserted her husband, and it was held that where, by the judgment of a 
 court, the husband was to pay to the wife a sum for a separate mainte- 
 nance, such a judgment was an implied authority to the wife to live sepa- 
 rate from her husband, and would preserve her dower, Weed v. Weed, 27 
 Minn. 330. 
 
 In Maryland, dower is forfeited by bigamy of the wife, Eev. Code, Tit. 
 27, Art. 72, § 102, p. 807. 
 
 Effect of Divorce. 
 
 A divorce a vineulo matrimonii will bar dower in some States irrespec- 
 tively of the cause for which it is obtained, or whether the husband or wife 
 is the moving party in the divorce proceedings, Calame v. Calame, 24 N. J. 
 Eq. 440 ; WhiUell v. Milk, 6 Ind. 229 ; Gleason v. Emerson, 51 N. H. 405 ; 
 Millimore v. Millimore, 40 Pa. St. 151 ; in others only where the divorce is 
 on accbunt of the misconduct .of the wife ; in some, when the decree is 
 against the wife, generally, and, in others, when it is for specified causes. 
 
 It will be a bar for the fault of the wife, generally, in Arkansas, Eev. 
 St., Ch. XLIV., §2217; Missouri, Eev. St., Vol. 1, Ch. 29, §2198; New 
 York, Eev. St. (1882), Ch. 1, Tit. III., §8, p. 2197 ; Illinois, Eev. St., Ch. 
 41, §14, p. 427; North Carolina, Bat. Rev., Ch. 37, §14, p. 366; Ohio, 
 Eev. St. (1880), Ch. 2, Tit. IV., Ch. 4, § 4192, p. 1051 ; (but not when 
 the divorce has been granted in another State, Mansfield v. Mclntyre, 10 
 Ohio 27 ;) and, therefore, where the divorce is for the fault of the hus- 
 band, the wife may still have her dower, Illinois, E. S., Ch. 41, § 14, 
 p. 427 ; Missouri, Eev. St., Vol. 1, Ch. 29, § 2198 ; Hunt v. Thompson, 61 
 Mo. 148 ; Forrest v. Forrest, 6 Duer 102. This last case overruled a dictum 
 of McCouN, V. C, in Day v. West, 2 Edw. 592, to the effect that a divorce 
 per se would bar the widow's dower, irrespective of her guilt or innocence. 
 Forrest v. Forrest was affirmed in Wait v. Wait, 4 Comst. 95, in which case 
 the Court of Appeals reversed the decision of the Supreme Court in 4 
 Barb. 192, and quoted with approbation the dissenting opinion of Willaed, 
 J., in the Court below. 
 
 The reason given for upholding the widow's claim of dower after the 
 divorce granted for the husband's fault, and therein differing from the com- 
 
Thompson v. Morrow. 387 
 
 mon law of England, was that, as' at common law, a divorce a vinculo 
 matrimonii could be obtained only for causes antecedent to the marriage, 
 and, therefore, rendered the marriage void ab initio, while in New York 
 (and it may be added in the United States, generally) a divorce might be 
 obtained for causes subsequent, it would be contrary to the analogy of the 
 law to permit the crime of one party to work a forfeiture of the rights of 
 another, and especially when that other was the injured person. This doc- 
 trine is held even when the divorce is accompanied by an order of the 
 Court for the maintenance of the wife. Wait v. Wait, supra ; Savage v. Orill, 
 26N.Y. S. C. 4. 
 
 In Connecticut, the statute, Gen. St., Tit. 18, Ch. 11, Art. 4, § 1, p. 376 ; 
 provides that where the wife is the innocent party in a divorce proceeding, 
 and no part of the husband's estate is assigned for her support, she can have 
 her dower. Under this statute, in a case where the wife, having begun pro- 
 ceedings in divorce, entered into an agreement with the husband to take no 
 alimony in consideration of his making no resistance to a decree of divorce, 
 it was held that the wife might still claim dower, for the contract was void 
 as between husband and wife, and the Court also intimated it might also 
 be held void as against public policy being to promote divorce, Stilson v. 
 Stilson, 46 Conn. 15. 
 
 In Georgia, when a decree for permanent alimony accompanies the di- 
 vorce, dower will be barred, Stewart v. Stewart, 43 Ga. 294, Code (1873), 
 Pt. 2, Tit. 2, Ch. 1, Art. 1, § 1742. 
 
 In Alabama, a divorce for adultery, on the part of the wife, will bar her 
 dower, Code (1876), Pt. 2, Tit. 5, Ch. 1, Art. 2, § 2698. 
 
 In Massachusetts, the law provides that there shall be no dower given 
 after a divorce, except when the decree is on account of the husband's 
 adultery, or his being sentenced to be confined at hard labor, in which case 
 the wife shall have her dower immediately, as though the husband were 
 dead, Sts., Ch. 146, § 28, p. 816. 
 
 This dower will include all lands owned by the husband during cover- 
 ture, Davol V. Howland, 14 Mass. 219. 
 
 In Rhode Island, upon a decree of divorce, based on a crime of the hus- 
 band, dower wUl be given to the wife in the lifetime of the husband, Gen. 
 Sts., Tit. XX., Ch. 167, § 7, p. 426. 
 
 The Maine statute. Tit. V., Ch. 60, § 7, p. 488, is to the same eifect, ex- 
 cept that its operation extends to all cases of divorce for fault of the hus- 
 band, except when the cause is impotence, Lewis v. Meserve, 61 Me. 374. 
 The statute has no retroactive force, so as to give dower in lands aliened by 
 the husband before the passage of the act, Given v. Marr,27 Me. 221 ; a 
 decree obtained by the husband will bar the wife's claim of dower abso- 
 
388 Thompson v. Mobkow. 
 
 lutely, and if she afterwards obtain a decree against him, it will not revive 
 her right, Stilphin v. Hondlette, 60 Me. 447. 
 
 In Wisconsin, where a marriage is dissolved by the sentence of the hus- 
 band to imprisonment for life, K. S., Tit. 23, Ch. 109, §2373, p. 665; in 
 Michigan, Comp. Laws, Tit. 38, Ch. 170, § 4756, p. 1469, and Nebraska, 
 Comp. Laws, Ch. 25, § 23, p. 254, if the husband is so sentenced, or if a 
 divorce be granted on account of the adultery or drunkenness of the hus- 
 band, or on account of his being sentenced to prison for a term of two 
 years or more, the wife becomes entitled to dower as though he were dead. 
 
 In Missouri, in the case of Hunt v. Thompson, 61 Mo. 148, it was argued 
 that the act of that State, with reference to dower, had the same effect as 
 those m the States immediately above mentioned ; but the Court held that 
 the act merely saved the widow's dower, leaving it to become consummate 
 on the death of the husband; the act applies when the divorce has been 
 granted in another State, Gould v. Grow, 57 Mo. 200. 
 
 In Ohio, where the wife's dower is saved on a decree of divorce for the 
 fault of the husband, it was held that if, after the divorce, the wife re- 
 married, she would not be entitled to dower in the estate of her first husband 
 on his death, the ground being that she would not then answer the descrip- 
 tion of the widow of the first husband, Bice v. Lumley, 10 Ohio St. 596. 
 
 The law in Ohio is now, however, different. In Lamkin v. Knapp, 20 
 Ohio St. 454, decided under an act passed in 1840, which, in case of a 
 divorce, gave dower to the innocent wife, who survived her husband, it was 
 decided that the subsequent marriage would not defeat the dower right, 
 Day, J., saying: "The subsequent marriage is lawful; why then should it 
 have any more effect on her right of dower than the marriage of a widow ? 
 The right in either case is a vested right, contingent, as to the former, it is 
 true, but it becomes absolute only by her survivorship ; " and the Court dis- 
 tinguished the case from Riee v. Lumley, on the ground that that case was 
 decided under the Act of 1824, which was silent as to dowter in such case. 
 
 A legislative divorce, made with the assent of both parties, and by which 
 a certaia sum is to be paid to the wife, is as effective a bar as a decree of 
 divorce by the courts, Cabell v. Cabell's Admr., 1 Met. (Ky.) 319: 
 
 A divorce a mensa et thoro will not be a bar to dower, although alimony is 
 granted, for it is a mere suspension of the marriage relation for the protec- 
 tion of the injured party. Day v. West, 2 Edw. 592 ; Rich v. Rich, 7 Bush. 53. 
 
 Statute of Limitations— Eflfect upon Dower. 
 
 After the death of the husband, it is generally held that, in the absence 
 of special mention, the widow's claim for dower is not within the statute 
 
Thompson v. Morrow. 389 
 
 of limitations, Barksdale v. Garrett, 64 Ala. 277 ; Ridgeway v. McAlpine, 31 
 Id. 458; Barnard v. Edwards, 4 N. H. 107 ; for the reason, generally given, 
 that the widow has no power to enter upon her dower lands before assign- 
 ment (see infra, though the power is given to her in some States), and that 
 the right of action does not arise from any right of possession adverse to 
 that of the heir or feoffee, the widow's right not being adverse. In some 
 cases the widow has been held as ia possession, in contemplation of law, 
 from the death of her husband. May v. Rumney, 1 Mich. 1 ; Welk v. O'Beall, 
 2 G. & J. 468 ; Spencer v. Weston, 1 Dev. & Bat. 213 ; Guthrie v. Owen, 10 
 Yerg. 123 ; Ralls v. Hughes, 1 Dana 407 ; Toohe v. Hardeman, 7 Ga. 20 ; 
 Chapman v. Schroeder, 10 Id. 321. 
 
 The law, however, is held otherwise in Iowa, where the statute wUl run 
 in favor of the heir or his assignee from 'the time that he denies the right 
 of the dowress, or does some act equivalent to such a denial. Sully v. 
 Nebergall, 80 Iowa 339 ; Rice v. Nelson, 27 Id. 148 ; but the right of dower 
 will not be barred by a mere lapse of time without adverse possession, Berry 
 V. Furhman, 30 Iowa 462 ; Fehh v. Finch, 52 Id. 563 ; in Pennsylvania, where 
 the statute wiU run from the time that the vendee, after the death of the 
 . vendor has, by some unmistakable act or declaration, asserted an adverse 
 right and claimed ownership. Care v. Keller, 77 Pa. St. 487 ; in Kentucky, 
 where the statute is held to run from the time of the husband's death, 
 Kinsohing v. Pierce, 18 B. Mon. 782 ; in South Carolina, where the statute 
 runs in favor of the purchaser, but not in favor of the heir, Boyle v. Row- 
 and, 3 Desau. 655, and note ; Lide v. Reynolds, 1 Brev. 76 ; Mitchell v. 
 Poyas, 1 N. & M. 85 ; in Arkansas, see Livingston v. Cochran, 33 Ark. 294 ; 
 in Tennessee, Carmichael v. Carmichael, 5 Humph. 96 ; in Maine, Durham 
 V. Angier, 20 Me. 242 ; and in Illinois, where it runs from the accrual of a 
 right of action for dower, but the laches of the husband can in no respect 
 affect the wife's right, Steele v. Gellatly, 41 111. 39. 
 
 Statutes of limitation, with especial reference to dower, have been en- 
 acted ia Massachusetts, where the period within which action must be 
 brought is twenty years from the husband's death. Pub. St. (1882), c. 124, 
 §14, p. 742; Georgia, where the term is seven years, Code (1873), Pt. 2, 
 Tit. 2, Ch. 1, Art. 2, § 1764 ; New York, twenty years. Rev. St. (1882), Pt. 
 2, c. 1, Tit. 3, § 18, p. 2199 ; Alabama, as in favor of the husband's alienee, 
 or one claiming under him, three years. Code (1876), Pt. 2, Tit. 3, Ch. 2, 
 Art. 2, § 2251, p. 581. Under the Code, an assignee in bankruptcy is not 
 such an alienee, Humes v. Scruggs, 64 Ala. 40. 
 33* 
 
390 Thompson v. Moeeow. 
 
 Stale Claims. 
 
 The rule of stale claims applies to claims for dower, Ralls v. Hughes, 1 
 Dana 407 ; Barnard v. Edwards, 4 N. H. 107. In the latter case a widow, 
 whose husband died in 1797, made no claim until 1826 ; the jury was, 
 allowed to consider the great length of time which had elapsed between 
 the accrual of the right and its assertion as evidence of a release of the 
 right of dower, although the widow had remarried in 1798, and had con- 
 tinued a feme covert and a non-resident of New Hampshire ever after. 
 
 No Presumption of Kelease of Dower from Adverse Possession 
 in Husband's Lifetime. 
 
 No presumption of a release of dower can arise from long continued pos- 
 session adverse to the husband in his lifetime, Durham v. Angier, 20 Me. 242. 
 
 Bar by Sale for Decedent's Debts. 
 
 In those States where land is assets for the payment of a decedent's 
 debts, a sale for such debts, with such notice to the widow as is required by 
 statute or otherwise, will effectually bar dower in the lands sold, Cockrill v. 
 Armstrong, 31 Ark. 580 ; Olmsted v. Blair, 45 Iowa 42 ; Garvin v. Hatcher, 
 39 Id. 685. 
 
 And where land has been, under an order of Court, improperly sold as 
 free from dower, it has been held that the widow may be put to her elec- 
 tion between her dower and her proportion of the avails of the sale, Sweesey 
 V. Shady, 22 Ohio St. 333. 
 
 Widow Estopped to Claim Dower. 
 
 The widow may, by her actions after her husband's death, estop herself 
 from blaiming dower, as by being present at a sale of the realty by the 
 administrator, and stating that the sale would be made free of dower, 
 Sweaney v. Mallory, 62 Mo. 485 ; or, it has been held, by simply standing 
 by and allowing persons to bid upon the property, the presumption being 
 that the widow knows her rights and by her silence waives them, Smith v. 
 Wright, 2 Ohio 506 ; but the reverse was held in Smith v. Paysenger, 2 
 Mills. Const. E. 59, the Court considering that there was no such pre- 
 sumption ; and in Phinney v. Johison, 13 S. Car. 25, the widow was held not 
 barred, though, in addition to standing by while a sheriff's sale was made for 
 the debts of her husband, she allowed the purchasers to make improvements, 
 the Court being of opinion that the purchasers must be presumed to know 
 
Thompson v. Moreow. 391 
 
 the title they held ; and see also Toledo, Peoria, and Warsaw R. W. Co. v. 
 Ourtenius, 65 111. 120, where the sale was made by order of Court. 
 
 The widow is not estopped from claiming her dower by merely selling as 
 executrix the land' of her husband for the payment of his debts, although 
 she do not expressly reserve her dower, Sip v. Lawbctek, 2 Harris (N. J.) 
 442 ; but if, acting in such capacity, she sell the land under an order of 
 Court, the terms of which direct a clear title to be made, and the purchaser 
 pay the full value of the land, she will be estopped as against the vendee 
 and his assignee, Dougrey v. Topping, 4 Paige 94 ; a like estoppel arises 
 when the sale is made with warranty, Magee v. Mellon, 23 Miss. 585. 
 
 The widow may estop herself by an agreement with the heir, upon proper 
 consideration, Shotwell v. Sedam's Heirs, 3 Ohio 5 ; but she is not estopped 
 by the fact that, prior to an assignment of dower, she enjoyed the assets of 
 her husband's estate to an amount in excess of a legal dower, and wasted 
 said assets, Kenan v. Johnson, 48 Ga. 28. 
 
 She may also be estopped by her laches ; thus in Gilbert v. Reynolds, 51 
 111. 513, the widow was held estopped under the following circumstances : 
 A husband and wife were in 1834 living apart ; in that year the former 
 obtained a divorce, but the wife did not know of it until 1854 ; in the same 
 year in which he had been divorced, the husband remarried and moved to 
 the State of Illinois, where he died in 1863, having sold certain land. In 
 1869, the widow, the first wife, claimed dower in said land, but was held 
 barred by her long silence. The widow may also be estopped by a ratifi- 
 cation after her husband's death of acts which, while covert, were not suf- 
 ficient to bar her dower. Reed v. Morrison, 12 S. & E. 18 ; Stoddart v. 
 Chiteomputs, 41 Iowa, 329. 
 
 Right of Widow after Husband's Death and before Assignment 
 of Dower. 
 
 Although the right of dower becomes consummate immediately upon the 
 husband's death. Price v. Johnston, 4 Yeates 526, yet, before the dower is 
 actually assigned, the widow's position is a somewhat anomalous one ; for while 
 the assignment does not create the dower, Matloek v. Lee, 9 Ind. 298, yet it 
 ascertains the portion of the land which she is to hold for her dower, JVIiyte 
 V. Mayor and Aldermen of Nashville, 2 Swan. 364 ; and until assignment, 
 the widow does not reap the fruits of her estate. 
 
 Before assignment, it has been characterized as a mere right or chose 
 in action. Strong v. Bragg, 7 Blackf 62 ; Rayner v. Lee, 20 Mich. 384 ; 
 Weaver v. Sturtevant, 12 E. I. 537 ; Hoxsie.y. Ellis, 4 Id. 123 ; the widow 
 has before assignment no right of entry. Shields v. Baits, 5 J. J. Mar. 13 ; 
 
392 Thompson v. Moreow. 
 
 Wyman v. Richardson, 62 Me. 293 ; Bokter v. Oushman, 34 Id. 428 ; May 
 V. Rumney, 1 Mich. 1 ; Sharpley v. Jones, 5 Harring. 373 - HillecSry v. HUr 
 leary's Lessee, 26 Md. 274 ; Barksdale v. Oarrett, 64 Ala. 277 ; Weaver v. 
 Crenshaw, 6 Id. 873 (aZtfer in Vermont, Grant \. Parham, 15 Vt. 649 ; 
 Connecticut, -where before assignment the -widow holds as tenant in com- 
 mon with the heirs, Stedman v. Fortune, 5 Conn. 462 ; Wooster v. Hunts 
 & Lyman Iron Co., 38 Id. 256 ; and Michigan, Prodor v. Bigelow, 38 Mich. 
 282; Moody y. Seaman, 46 Id. 74;) and cannot maintain a possessory 
 action, Toohe v. Hardeman, 7 Ga. 20 ; and if she obtaia possession, it is by 
 right of quarantine only, Shields y. Batts, supra ; Weaver v. Crenshaw, 6 
 Ala. 873 ; Blodget v. Brent, 3 Cr. Cir. 394 ; and if an ejectment or writ of 
 equity should be brought against her, she cannot defend by virtue of her 
 unasSigned dower, Hildreth v. Thompson, 16 Mass. 191 ; Cavender \. Smith,' 
 8 Iowa 360 ; but in Den ex d. Halsey v. Dodd, 1 Hals. 367, the Court 
 thought otherwise, and quoted with approbation the dictum of Gould, J., 
 in Goodlitle v. Newman, 3 Wils. 516. " If dower be not assigned to her 
 within forty days, may she not continue until it be assigned ? I think the 
 Court would not turn her out until dower was assigned." But see Jaekson 
 V. O'Dqnaghy, 7 Johns. 247. 
 
 Before assignment, the widow's dower is not seizable in execution, Gooeh 
 V. Atkins, 14 Mass. 378 ; Crittenden v. Woodruff, 14 Ark. 465 ; Pennington 
 V. Yell, 11 Id. 236 ; Torrey v. Minor, 1 S. & M., Ch. 489 ; Summers v. Babb, 
 13 111. 483 ; Rausch v. Moore, 48 Iowa 611 ; Doe ex d. Cook v. Webb, 18 Ala. 
 814 (aliter in Connecticut, Greathead's Appeal, 42 Conn. 374), and a sale on 
 execution will not be validated by a subsequent assignment. Shields v. Batts, 
 supra ; but where the widow is in possession, her dower may be reached by 
 a creditor's bill, Tompkins v. Fonda, 4 Paige 448 ; Stewart v. McMartin, 5 
 Barb. 438. Davison v. Whittlesey, 1 McAr. 165, goes further, and declares 
 unassigned dower subject generally, in equity, to debts contracted by the 
 widow after her husband's death, and that where the dower cannot be 
 assigned by metes and bounds, a receiver will be appointed; and that 
 unassigned dower is liable generally in equity for the widow's debts has 
 lately been declared to be the law in New York. In Payne v. Becker, 29 
 N. Y. S. C. 28, the Supreme Court held that an assignment of an unassigned 
 dower, executed by a widow under compulsory process, to a receiver 
 would not authorize the receiver to proceed to have the dower ad- 
 measured ; but the Court of Appeals, in 87 N. Y. 154, reversed this deci- 
 sion, and said, "It must now be deemed settled that upon the death 
 of the husband, a widow has an absolute right to dower in the lands of 
 which he had been seized, and that this right, or interest, although resting 
 in action, is liable in equity for her debts." 
 
Thompson v. Moeeow. 393 
 
 Before assignment, the widow is not liable for taxes, Branson v. Yancy, 
 1 Dev. Eq. 77 ; Fetch v. Finch, 52 Iowa 563 ; she may, if in possession, 
 take the crops and account to the heirs for their share thereof, Laird v. Wil- 
 son, Penning. 281 ; but she has no power to make a lease, Croade v. Ingra- 
 ham, 13 Peck. 33 ; or exercise other acts of ordinary dominion over the 
 land, Webb v. Boyle, 63 N. C. 271 ; Lamar v. ScoU, 4 Rich. 516 ; and in 
 case of proceedings for partition, she need not be made a party, Hoxde v. 
 Ellis, 4 R. I. 123. 
 
 Before assignment, the widow has no power to convey her dower so as to 
 vest a right of action in the graxileR, Blain v. Harrison, 11 111. 384; Jackson 
 ex d.,Clowes v. Vanderheyden, 17 Johns. 167 ; Jackson ex d. Totten v. Aspell, 
 20 Id. 411; Green v. Putnam, 1 Barb. 500; Jackoway v. MeGarrah, 21 
 Axk. 347; CamaU v. WUson, Id. 62; Jacks v. Dyer, 31 Id. 334 ; Saltmarsh v. 
 8mith, 32 Ala. 404 ; Wallace v. Hall's Heirs, 19 Id. 367 ; Cox v. Jagger, 2 
 Cow. 644 ; Summers v. Babb, 13 111. 483 ; but she may release her right to 
 the owner of the fee, Reed v. Ash, 30 Ark. 775 ; Summers v. Babb, Green 
 V. Putnam, supra ; or to the heir, Matlock v. Lee, 9 Ind. 298; Strong \. 
 Bragg, 7 Blackf. 62 ; Malin v. Coult, 4 Ind. 535 ; and a release to the heir, 
 although he is not in possession, wUl not be champertous, Boss v. Blair, 
 Meigs 525 ; or to the equitable owner of the fee, Bailey v. West, 41 111. 290 ; 
 or to the purchaser of the fee, although the contract of purchase is still 
 unexecuted, Chicago Dock Co. v. Kinzie, 49 111. 289 ; or to one who, by 
 covenants of warranty, is in privity with the owner of the fee. La Framboise 
 V. Grow, 56 111. 197 ; and see Bobbins v. Kinzie, 45 Id. 354. 
 
 Although the widow cannot convey her dower before assignment, 
 yet, under some circumstances, a contract made by her with reference to 
 such a conveyance may be enforced in equity, Potter v. Everitt, 7 Ired. Eq. 
 152 ; and it has even been held that her alienee may be protected at law by 
 being allowed to sue in the name of the widow, Lamar v. Scott, 4 Rich. 506. 
 
 In Grant v. Parham, 15 Vt. 649, the question was as to the effect of a 
 quit-claim deed given by the widow before the assignment of her dower, 
 and the Court, without giving any opinion as to the general rule of the 
 widow's inability as above stated, held that by such a deed the widow might 
 bar herself; as, however, in Vermont the widow has a right of entry before 
 assignment, this case cannot be considered as authority upon the general 
 question. 
 
 Assignment of Dower. 
 
 An assignment of dower should be made before any sale of the realty 
 for the deceased husband's debts, Laidley v. Kline, 8 W. Va. 218. It 
 
394 Thompson v. Moeeow. 
 
 should be made by the heir, or by him who is tenant of the land, Co. Lit. 
 346. 
 
 This duty of the heir is recognized by statute in Arkansas, Rev. St., Ch. 
 XLIX., § 2239 ; Illinois, Rev. St. (1880), Ch. 41, § 18, p. 427 ; Ohio, Rev. 
 St., Pt. 3, Tit. 1, Div. 7, Ch. 7, §§ 5703, 5707, p. 1383 ; Rhode Island, Rev. 
 St., Tit. 29, Ch. 229, §4, p. 637 ; Massachusetts, Pub. St. (1882), Ch. 124, 
 §16, p. 742. 
 
 If the heir is a minor, the assignment may be made by his guardian, 
 Jones V. Brewer, 1 Pick. 314 ; Ourtis v. Hobart, 41 Me. 230 ; Young v. 
 Tarhell, 37 Id. 509 ; Illinois, Rev. St., Ch. 41, § 43, p. 429 ; Arkansas, Rev. 
 St., Ch. XLIX., § 2241. In Michigan, the guardian of a spendthrift may 
 assign for him, Comp. Laws, Vol. 2, Tit. 28, Ch. 172, § 4833, p. 1484. 
 
 An assignment may be made by parol, notwithstanding the statute of 
 frauds, for the widow does not derive any estate from the assignment ; she 
 already holds an estate by the operation of the law, and needs only to have 
 the land she is to occupy distinguished from the rest of her late husband's 
 estate by being separated therefrom, and this may be done as well by the 
 physical act of setting it out by metes and bounds, as by deed, Johnson v. 
 Neil, 4 Ala. 166; Meservey. Meserve, 19 N. H. 240; Pinhhamy. Gear, 3 
 Id. 163 ; Conard v. IMle, 1 Pick. 189 ; Shattuck v. Graffff, 23 Id. 88 ; Our- 
 tis V. Hobart, 41 Me. 230 ; but the assignment must be accepted by the widow 
 to render it binding, Johnson v. Morse, 2 N. H. 48 ; and a mere agreement, 
 although in writing, signed by the heirs and not by the widow, that in con- 
 sideration of the use of the entire estate of the husband by his heirs, the 
 widow may have the occupancy of a certain part thereof, together with 
 certain farm stock, and that she shall have a certain yearly payment from 
 the heirs, will not amount to an assignment. In McLeery v. McLeery, 65 
 Me. 172, where the facts were as above, the Court said: "Nor could it (the 
 paper) operate as an assignment to her of her dower. A portion of the 
 consideration to her iu the agreement consists of the executory promises 
 of the sons, which may never be fiilfiUed. The agreement (not signed by 
 her) merely related to ' the use and income * of her dower by the sons until 
 set out to her. It operated only to suspend her claim for a time." 
 
 If the heir or owner of the fee does not assign dower, the widow may 
 then apply to the proper authority, and have dower assigned by it. In 
 England, the assignment, under such circumstances, is made by the sheriff, 
 but in this country, under various acts, the place of the sheriff is generally 
 supplied by commissioners appointed by the Court ; see Scott v. Seott, 1 Bay 
 504 ; and it may be noted that, except where the statutory method is made 
 by legislative authority, exclusive of all others, the common-law system of 
 assignment may still be pursued, Johnson v. Neil, 4 Ala. 166 ; Moore v. 
 
Thompson v. Morrow. 395 
 
 Waller, 2 Eand. 421 ; SuUon v. Burrows, 2 Murph. 81 ; Qihhs v. Esty, 29 
 N. Y. S. C. 266 ; Rutherford v. Graham, 9 Id. 796. 
 
 Before proceeding to have dower adversely assigned, the widow must 
 make a demand for dower upon the person bound to assign it, primarily, the 
 person seized of the freehold, either as heir or by conveyance from the hus- 
 band. Hunt v. HotchUss, 64 Me. 241. In Cook v. Walker, 70 Me. 232, it 
 was held that where the wife is entitled to dower in lands held in common, 
 the demand must be made upon the person holding the husband's title, and 
 not upon his cotenant. A demand upon the tenant of a non-resident owner, 
 Stevens v. Rollingsjord Savings Bank, 70 Me. 180, or upon his agent to col- 
 lect rents, Hunt v. Hotckkiss, supra, has been held good under a statute 
 which accords with the common law on the subject of demand. In New 
 York, a demand is not necessary before proceeding to recover dower, Jack- 
 son ex d. Loucks v. Churchill, 7 Cow. 287. 
 
 The demand may be by parol. Page v. Page, 6 Gush. 196 ; Baker v. 
 Baker, 4 Greenl. 67 ; Curtis v. Hobart, 41 Me. 230, or made by one au- 
 thorized by parol, Luce v. Stubbs, 35 Me. 92 ; Lothrop v. Foster, 51 Id. 
 367. 
 
 In New Hampshire, however, the demand must be in writing, Stats. 
 (1878), Ch. 246, §2, p. 666. 
 
 How Dower should be Assigned. 
 
 Dower should be assigned by metes and bounds, Pierce v. Williams, Pen- 
 ning. 709 ; Smith v. Smith, 6 Lans. 313 ; and where it is to be assigned in 
 a tenancy in common, partition should be made before assignment, Walker 
 V. Walker, 6 Cold. 671 ; but an assignment may be made without partition, 
 Ross V. Wilson, 58 Gra. 249 ; Smith v. Smith, 6 Lans. 313. 
 
 A room, or a portion of a building, may be assigned for dower. Den ex d. 
 Miller Y.Miller,! South. 321; White v. Story, 2 Hill 543; Stewart v. Smith, 
 39 Barb. 167 (reversed in 1 Keyes 59, but not upon this point) ; but if 
 dower be assigned in a building in such a manner as to render it practi- 
 cally useless, the assignment will be set aside as bad, Stewart v. Smith, 4 
 Abb. App. 806 ; and the remarks of Beonson, J., in White v. Story, supra, 
 would indicate that the widow's assent was necessary to render the assign- 
 ment of a room valid. 
 
 Where an assignment is made by the sheriff, or by commissioners, the 
 return should be definite. In Pierce v, Williams, Penning. 709, the Court 
 said : " It ought to describe the part allotted to the widow by metes and 
 bounds, whenever the subject-matter is capable of being so described, and 
 a particular end of a house or barn, or a third of an orchard, will not do." 
 
396 Thompsout v. Moeeow. 
 
 But in Den ex d. Miller tt:. Miller, mpra, the assignment of " one-third " of 
 a building was held good, and in Patch y. Keeler, 27 Vt 252, the assign- 
 ment of "the three -west rows of apple-trees on the west side of the orchard, 
 running north and south, in the centre, between the third aad fourth rows," 
 was held sufficient. 
 
 Where the character of the property in which dower is to be assigned is 
 such that it is impossible to set it off by metes and bounds, dower may be 
 assigned by giving the widow one-third of the net rents and profits of the 
 land or of its yearly value, Walsh v. Eeis, 50 111. 447 ; Michigan, Comp. Laws, 
 Vol. 2, Tit. XXn., Ch. CLI., §4279, p. 1361 ; Wisconsin, Rev. St., Pt. 2, 
 Tit. 29, Ch. 166, §3871, p. 953; Nebraska, Comp. Stat., Ch. 23, §10; 
 Oregon, Sts., Ch. 17„Tit. 1, § 11, p. 585; Ohio, Tit. 1, Div. 7, Ch. 7, § 5714, p. 
 1384; Ehode Island, Stats., Ch. 229, §2, p. 637; South Carolina, Eev. (1873), 
 Pt. 3, Tit. 3, Ch. 113, p. 530; Vermont, Gen. Laws, Tit. 15, Ch. 114, §2223, 
 p. 451 ; Missouri, Eev. St., Vol. 1, §§2215, 2216, p. 368 ; New Hampshire, 
 Gen. Stat. (1878), Ch.202, §4, p. 474; Arkansas, Eev. St., Ch. CIL, §4339, 
 p. 777 ; Maine, Eev. St (1871), Tit. IX., Ch. 103, § 3, p. 757 ; Massachu- 
 setts, Pub. Stats. (1882), Pt. 2, Tit. 1, Ch. 124, § 11, p. 742 ; or by assigning to 
 the widow a sum of money which, if all consent, may be a sum in gross ; 
 but the widow is not compellable to take the sum in gross, and may insist 
 upon having secured to her an annual sum, or on being endowed of the 
 rents and profits. Summers v. DonneU, 7 Heisk. 565 ; and the true measure 
 of the sum to be secured to the widow is the annual value of the land, less 
 repairs, taxes, and other necessary and recurrent expenses ; and the ques- 
 tion, ia fixiag the amount, is not whether the property is used or is unpro- 
 ductive, but what is the yearly value of the property if used, or permitted 
 to be used, for the purposes to which it is peculiarly adapted, Riley v. Clor 
 morgan, 15 Mo. 331, as explained iu Reily v. Bates, 40 Id. 468. No de- 
 duction should be made for insurance or water rent, HUlgartner v. Gebhart, 
 25 Ohio St. 557 ; for the widow as a life tenant would be under no obliga- 
 tion to insure the buildings, if actually held by her ; see ante, p. 211 ; or 
 to use water within them. 
 
 To render an assignment of money in lieu of the land itself valid, the 
 commissioners must certify that it was impossible to assign dower otherwise 
 without doing injustice or ruining the property, Heyward v. Guthhert, 3 
 Brev. 482. When the assignment is made of the annual value, as above 
 stated, the amount cannot be varied by subsequemt events aflPecting the 
 value of the property; but when the assignment is of one-third of the rents 
 and profits, the amount will vary from time to time, Walker v. Walker, 5 
 Bradw. 289 ; and see Donoghue v. Chicago, 57 IU. 235. 
 
 The consent of all parties in interest is necessary to render the assign- 
 
Thompson ?;. Moeeow. 397 
 
 merit of a sum in gross valid, Harmon's Exrs. v. Payne, 32 Gratt. 387 ; 
 Cooh's Exr. V. Cook's Admr., 20 N. J. Eq. 375. 
 
 Where the husband's realty consists of several distinct parcels of land, 
 dower should be assigned in each parcel separately, Schnebly v. Schnebly, 
 26 111. 116 ; Wood v. Lee, 5 T. B. Mon. 50; Scott r. Scott, 1 Bay 504; Coulter 
 V. Holland, 2 Harring. 330 ; Sip v. Lawhach, 2 Harris. (N. J.) 442; French 
 V. Pratt, 27 Me. 381 ; In the Matter of Anne Garrison, 2 McCart. 393; espe- 
 cially where dower is sought in lands which have been conveyed by the 
 husband, Thomas v. Hesse, 34 Mo. 13. Dower so assigned is called dower 
 according to common right. 
 
 Where, however, it can be done without injury to third persons, as where 
 all the parcels belong to one person, or the husband has died seized of all 
 his lands, and such an assignment can be made without injury to devisees, 
 dower against common right may be given ; that is, the widow may re- 
 ceive in one solid piece, land of the same value as she would have received 
 if the third of each tract owned by her husband had been assigned to her; 
 but for such endowment the widow's assent is absolutely necessary, French 
 V. PraU, 27 Me. 381 ; Montgomery v. Horn, 46 Iowa 285 ; Alderson's Heirs 
 V. Henderson & Co., 5 W. Va. 182. 
 
 Dower in solido, if we may so call it, has been provided for by statute 
 in Kentucky, Gen. St., Ch. 52, § 11, p. 531 ; Tennessee, Sts. (T. & S. 1871), 
 Pt. 2, Tit. 3, Ch. 3, § 2403 ; Rhode Island, Sts., Tit. 29, Ch. 229, § 3, p. 637, 
 and GeorgiajCode 1873, Pt. 2, Tit. 2, Ch. 1, Art. 1, §§1766, 1767 ; in the 
 last-named State the right to make such assignment is limited to cases in 
 which aU the lands lie in one county. 
 
 When an assignment against common right is avoided, all parties are 
 restored to their original positions, French v. Peters, 33 Me. 396. 
 
 If the husband conveys his land in portions and then dies, the dower 
 must be assigned out of each portion ; and this is also the case when land, 
 conveyed by the husband as a single tract, has been subdivided by subse- 
 quent conveyances, Fosdich v. Gooding, 1 Me. 30; Boyd v. Carlton, 69 
 Me. 200. 
 
 Where the husband has aliened some of his land and retained some, the 
 dower, if possible, should be assigned out of the retained portion, Lawson 
 V. Morton, 6 Dana 471 ; Morgan v. Conn, 3 Bush. 58 ; in Wood v. Keyes, 
 6 Paige 478, in which the husband had sold several lots with warranty, the 
 Court held that equity would compel a widow to take her dower out of the 
 unconveyed land, although at law such an assignment could not be made 
 without the widow's assent. 
 
 When the husband has conveyed land, and the grantee has improved 
 34 
 
398 Thompson v. Morrow. > 
 
 part of it, the widow's dower must, if possible, be assigned in the unim- 
 proved portion, Leggett v. Steele, 4 Wash. C. C. 305. 
 
 Dower in wild lands should not be assigned in sparse tracts, so that the 
 whole estate of the widow would be of little value, Pike v. Underhill's 
 Admr., 24 Ark. 124. 
 
 Where a widow takes dower against common right, she takes subject to 
 incumbrances, French v. Pratt, 27 Me. 381. 
 
 By assent, the widow may take the value of her dower in land assigned 
 in fee, Pritchitt v. Kirkman, 2 Tenn. Ch. 390. 
 
 In assigning dower, the productiveness as well as the value of the lands 
 should be considered. Smith's Heirs v. Smith, 5 Dana 179 ; and also the 
 convenience of the widow and heirs ; see Leonard v. Leonard, 4 Mass. 533, 
 in which ease the Court (Parsons, C. J., Parker and Sewall, JJ.) 
 laid down the following rule of assignment: "To regard the rents and 
 profits only of the several parcels of the estate out of which the dower is 
 to be assigned. When they have ascertained the annual income of the 
 whole estate, they ought to set off to the widow such a part as will yield one- 
 third of such income in parcels best calculated for the convenience of herself 
 and the heirs;" and see McDanid v. Heirs of McDaniel, 3 Ired. Law 61. 
 
 If possible, without prejudice to the rights of others, the mansion-house, 
 or usual place of residence of the husband, should be included in the por- 
 tion of his estate assigned for dower, Langdon v. Stephens, 6 Ala. 730; 
 Stiner v. Cawthorn, 4 Dev. & Bat. 501 ; and see Tennessee, Stats. (T. & S.), Pt. 
 2, Tit. 3, Ch. 3, §§2401, 2402, pp. 1076-7 ; Florida, McCIell. Dig., Ch. 95, 
 §1 ; Alabama, Code (1876), Pt. 2, Tit. 3, Ch. 2, Art. 2, §2238; Iowa, Stats., 
 Tit. XVI., Ch. 4, § 2441, p. 655 ; Arkansas, Rev. St., Ch. XLIX., §§ 2228, 
 2229. 
 
 It is error to assign as dower a privilege in the lands of others, Jones v. 
 Jones, 1 Busbee Law, 177. 
 
 Value of Ijand— How Fixed for the Purpose of Assignment of 
 Dower. 
 
 In fixing the value of land for the purpose of assigning dower, the rule 
 is that, as against the heir, the value at the time of the assignment is to be 
 taken, and the widow will, therefore, have the advantage of any improve- 
 ments made by the heir, for the reason given in the old books, that it was 
 his folly to improve before he had assigned the widow her dower, Catlin v. 
 Ware, 9 Mass. 218 ; Keith v. Trapier, 1 Bail. Eq. 63 ; McOehee v. McGehee, 
 42 Miss. 747 ; Stewart v. Pearson, 4 S. C. 4 ; Larrowe v. Beam, 10 Ohio 498 ; 
 Price V. Hobbs, 47 Md. 359 ; Husted's Appeal, 34 Conn. 488. 
 
Thompson v. Morrow. 399 
 
 When the question is as to the vahie to be taken as against the alienee 
 of the husband, the rule has been stated to be that the value is to be taken 
 as of the time of alienation, Catlin v. Ware, 9 Mass. 218 ; Bussell v. Gee, 
 2 Mills 254; Brotm v. Duncan, 4 McC. 346 ; Beavers Y.Smith, 11 Ala. 20; 
 and the widow can have no advantage from improvements made by the 
 tenant, Ayer v. Spring, 9 Mass. 8 ; Barney v. Frowner, 9 Ala. 901. 
 
 The tendency of the Courts has been to render this rule somewhat more 
 liberal in its operation towards the widow, and it is now very generally 
 held, that while she can have no advantage arising from the improvements 
 of her husband's alienee, she may yet have the advantage arising from the 
 general improvement of the neighborhood in which the lands lie, or from 
 other causes which, independently of the alienee's acts, tend to appreciate 
 their value, Johnston v. Vandyke, 6 McL. 422 ; Shirtz v. Shirtz, 5 Watts 
 255 ; Powell v. Monson and Brimfield Ifanuf. Co., 3 Mason 347 ; Mosher 
 V. Mosher, 15 Me. 371 ; Allen v. MaCoy, 8 Ohio 418 ; Srnith v. Addleman, 
 5 Blackf. 406 ; Wale v. Hill, 7 Dana 172 ; Rawlins v. Buttel, 1 Houst. 224 ; 
 Wooldridge v. Wilhins, 3 How. (Miss.) 360 ; Dunseth v. Banh of the United 
 States, 6 Ohio 76 ; Green v. Tennant, 2 Harring. 336 ; Bowie v. Berry, 1 
 Md. Ch. 452 ; Summers v. Babb, 13 111. 483 ; Fritz v. Tudor, 1 Bush. 28 ; 
 Scammon v. Campbell, 75 111. 223 ; Boyd v. Carlton, 69 Me. 200 ; Price v. 
 Hobbs, 47 Md. 359 ; Manning v. Laboree, 33 Me. 343 ; Hobbs v. Harvey, 
 16 Id. 80; Lawson v. Morton, 6 Dana 471. 
 
 From the rule thus liberalized, there are some dissidents. In Walker v. 
 Schuyler, 10 Wend. 480, the Supreme Court of New York laid down the 
 rule that the widow should be endowed of the value of the land as at the 
 time of alienation, and no more. Savage, C. J., said : " The distinction be- 
 tween the increased value of the land, as arising from its direct improve- 
 ment by the alienee, or from extrinsic causes, does not seem to have been 
 taken in the English books. . . . Any other rule than that adopted by this 
 Court would be difficult of application. It is not easy to say how much 
 of the appreciated value has arisen from the labor and money expended 
 upon the land. ... It is certainly reasonable that the enhanced value 
 should enure to the benefit of those through whose labor, suffering, and 
 expenditure the appreciation has been procured. If the property has been 
 rendered more valuable by the general improvement of the country, the 
 defendant, and not the plaintiff, has contributed to that general improve- 
 ment;" and see Dorchester v. Coventry, 11 Johns. 510 ; Humphrey v. Phinney, 
 2 Id. 484 ; AUan v. Smith, 1 Cow. 180 ; Shaw v. White, 13 Johns. 179 ; DolJ 
 V. Basset, 15 Id. 21 ; Parks v. Hardey, 4 Bradf 15 ; Hale v. James, 6 Johns. 
 Ch. 258'; Marble v. Lewis, 53 Barb. 432. It is true that some of the cases 
 cited were decided under the statute of Nev York, which declares that the 
 
400 Thompson v. Moerow. 
 
 dower assigned shall be " according to the value of the land, exclusive of 
 improvements made since the sale." But Kent, C. J., declared in Hum- 
 phrey V. Phinney, that the statute introduced no new rule, " for such was 
 the law as understood and declared in the most ancient decision of which we 
 have any report, 17 Hen. III., Dower 192, 31 Ed. 1, Voucher 288 ; Perkins, 
 Tit. Dower, § 328." So that the position of the New York courts may be 
 stated as that of express dissent from the rule which distinguishes between 
 the causes of improvement, and which Kent, although he could not sanc- 
 tion it as a judge, approves as a text writer ; see Kent, Com., Vol. 4, 
 p. 67. 
 
 The New York doctrine was also held by the Supreme Court of Virginia, 
 in Tod V. Baylor, 4 Leigh 498, Tucker, P., dissenting ; and was the law 
 in Minnesota prior to the abolition of dower in that State, Querin v. 
 Moore, 25 Minn. 462 ; and see Barney v. Frowner, 9 Ala. 901. Van Dorn 
 V. Van Dorn, Penning. 698, is hardly an exception to the general Ameri- 
 can rule ; for though the Court said, generally, that the dower should be 
 assigned as of the value at the time of alienation, yet it is evident from the 
 report that the only question before the Court was as to the right of the 
 widow to be endowed of the improvements, it being argued that the pur- 
 chaser, as well as the heir, made his improvements with knowledge of the 
 widow's rights, and that, therefore, the same rule should be applied to both. 
 The same remark will apply in a great measure to Gatlin v. Ware, 9 Mass. 
 218. 
 
 A purchaser at a sale, upon an execution against the husband, is an 
 alienee within the rule. Price v. Hohhs, 47 Md. 359 ; Woods v. Morgan, 56 
 Ala. 397, and it has even been held that a conveyance to a child, upon a 
 good consideration only, will render the widow's dower liable to the same 
 rule of assignment ; see Stookey v. Stookey, 89 111. 40, in which case Dickey, 
 J., said : " It may be that to each child was conveyed the precise share of 
 the property which it would have inherited in the absence of the convey- 
 ance, or of any change in the condition of the property. Their father 
 . chose to give them the property by deed rather than by will or inheritance, 
 and he must be taken to have intended to accomplish the legal effect attend- 
 ing upon the conveyance." 
 
 Where, after a demand for dower has been made, the tenant has gone on 
 and made repairs and improvements upon the premises in which d^jwer has 
 been demanded, he has been refused any allowance for such repairs and 
 improvements, Walsh \. Wilson, 131 Mass. 535. 
 
 In fixing the value of land where it has been sold at sheriff's sale, the 
 sum paid will not be regarded as an absolute measure of the value at the 
 time of the sale, and it may be shown that the land was really worth more. 
 
Thompson v. Moeeo"w. 401 
 
 but it seems it may not be shown that it was worth less, Alexander v. Ham- 
 ilton, 12 So. Car. 39. 
 
 Where the husband has conveyed his land by giving a title bond, the 
 date of its delivery is regarded as the date of alienation, Wilson v. Oatman, 
 2 Blackf. 223. 
 
 Where the value of land conveyed by the husband ia his lifetime has 
 depreciated, the valuation for the purposes of dower should be as at the 
 time of the assignment, McClanahan v. Porter, 10 Mo. 746. Thus, where 
 buildings which were upon the land at the time of conveyance were de- 
 stroyed by accident, and new buildings were erected in their place, it was 
 held that the widow should suffer the loss by the destruction of the old, 
 but should reap no advantage from the erection of the new buildings, 
 Braxton v. Coleman, 5 Call 433; Westcott v. Campbell, 11 K. I. 378. But 
 there is a distiuction between cases in which the destruction is the result 
 of accident, or of the wear of time, and those in which it is the deed of the 
 owner of the land himself. In Beavers v. Smith, 11 Ala. 20, where an old 
 building was pulled down by the alienee and a new one built, it was held 
 that the value of the old building should be settled in equity and the widow 
 should have her dower thereof. i 
 
 This question of valuation has been the subject of statutory regulation 
 ia several States. In South Carolina, it is enacted that the valuation of 
 dower against a purchaser shall be according to the value of the land at 
 the time of alienation, with interest from said time added, Code, Pt. 3, Tit. 
 3, Ch. 112, p. 530. In Ohio, it is provided that permanent improvements 
 made after alienation shall be excluded in estimating the value of dower, 
 Eev. St., Tit. II., Div. 7, Ch. 7, § 5716. In Michigan, Comp. Laws, Vol. 2, 
 Tit. XXII., Ch. CLI., § 4275 ; Minnesota, Gen. Sts., Ch. 48, § 1 ; Nebraska, 
 Comp. St., Pt. 1, Ch. 23, § 7 ; Oregon, Ch. 17, Tit. 1, § 7; Wisconsin, Rev. 
 St., Pt. 2, Tit. 20, Ch. 98, § 2166, dower is to be estimated as at the time 
 of alienation. The statute of Kentucky excludes permanent improvements, 
 even as against the heir, Gen. St., Ch. 52, Art. IV., § 9, p. 530. The Code 
 of Virginia contains a provision substantially the same as the rule stated in 
 Thompson v. Morrow, supra; see Code, Tit. 31, Ch. 106, §§ 11, 12, p. 555. 
 
 Excessive Assignment of Dower— Eviction. 
 
 An excessive assignment of dower may be set aside by a court of equity, 
 In the Matter of Ann Garrison, 2 McCart. 393 ; which may exercise its 
 power upon terms, Pierson v. Hitchner, 25 N. J. Eq. 129 ; and where, after 
 the assignment, a recovery is had against the heirs, which does not include 
 the portion set out to the widow, the assignment is thereby avoided, Single- 
 Si* 2 A 
 
402 Thompson v. Moeeow. 
 
 ton's Heirs v. Singleton's Exr., 5 Dana 87 ; and where the widow is lawfully 
 evicted of her dower, assigned according to common right, she may be re- 
 endowed, Frmch v. Pratt, 27 Me. 381. 
 
 Collusive Assignment. 
 
 A collusive assignment or recovery of dower will not bind a minor heir ; 
 see Ohio, Kev. St., Tit. 1, Div. 7, Ch. 7, § 5717 ; Kentucky, Gen. St., Ch. 62, 
 Art. IV., § 10, p. 531 ; Michigan, Comp. Laws, Vol. 2, §4297 ; Wisconsin, 
 Eev. St., Pt. 2, Tit. 20, Ch. 98, § 2179 ; Missouri, Rev. St., Vol. 1, Ch. 29, 
 §2220, p. 369; Nebraska, Comp. Laws, Ch. 23, §28, p, 216; New Jersey, 
 Rev. of 1877, p. 34, pi. 6 ; New York, Eev. St. (1882), Pt. 2, C. 1, Tit. 8, 
 § 24; Oregon, Stats., Ch. 17, Tit. 1, § 29, p. 687. 
 
 Acquiescence in Dlegal or Defective Assignment. 
 
 An illegal, informal, or defective assignment may, by long acquiescence, 
 become binding, Rohinson v. Miller, 1 B. Mon. 88 ; Sichman v. Irvine's 
 Heirs, 3 Dana 121 ; Mitchell v. Miller, 6 Dana 79 ; Austin v. Austin, 50 
 Me. 74 ; Wood v. Lee, 6 T. B. Mon. 50 ; Rohinson v. Miller, 2 B. Mon. 284. 
 
 Assignment as Finality. 
 
 In several States, it is provided that the widow may receive an assign- 
 ment as a finality, which wUl not be disturbed or increased except in case 
 of a lawful eviction, but will bar the widow's claim even as against lands 
 in which dower has not been assigned, Michigan, Comp. Laws, Vol. 2, Ch. 
 151, §4296, p. 1363; Wisconsin, Rev. St., Ch. 98, § 2178, p. 628; Nebraska, 
 Comp. Laws, Ch. 23, § 27 ; New York, Rev. St., Pt. 2, Ch. 1, Tit. 3, § 23 ; 
 Oregon, Stats., Ch. 17, Tit. 1, §28, p. 587, 
 
 effect and Scope of Assignment. 
 
 After assignment, the wife is possessed as of the seizin of her husband, 
 and is subject to the same estoppels, Lawrence v. Brovm, 5 N. Y. 398 ; Den 
 ex d. Williams v. Bennett, 4 Ired. Law 123 ; her interest is not the subject 
 of a partition suit by the heirs, for she is not a tenant in common, Clark 
 V. Richardson, 32 Iowa 399 ; nor can she apply for partition, Liederkranz 
 Society v. Beck, 8 Bush. 597. 
 
 The assignment wUl carry with it the crops growing on the dower land at 
 the time of assignment, unless otherwise reserved, Ralston v. Ralston, 3 Iowa 
 533. 
 
Thompson v. Moerow. 403 
 
 After assignment, the assignor is estopped from denying that the land 
 in -which dower was assigned was subject to dower, Shattuck v. Gragg, 23 
 Pick. 88. 
 
 Quarantine. 
 
 Quarantine is the right given to the widow by statute, 9 Hen. III., c. 7, 
 to remain in her husband's capital mansion-house for forty days after his 
 death", during which time her dower shall be assigned, 2 Blackst. Com. 135. 
 
 This right is generally recognized throughout the United States ; in some 
 of them the time during which it may be exercised has been increased by 
 statutes, and in some its scope has been increased so as to include more 
 than the mere house ; but it is believed that, in the main, its incidents, as 
 at common law, have been left untouched. 
 
 By statutes in Alabama, Code (1876), Pt. 2, Tit. 3, Ch. 2, Art. 2, § 2238 
 Georgia, Code (1873), Pt. 2, Tit. 2, Ch. 1, Art. 2, § 1768 ; and see Claiborne's 
 Exr.Y. Calhoun, 58 Ga. 274 ; Missouri, Rev. St.,Vol. 1, Ch. 29, § 2205, p. 866 
 New Jersey, Rev. of 1877, p. 320, pi. 2 ; Florida, McClell. Dig., Ch. 95^ 
 § 3 ; Rhode Island, Rev. Sts., Tit. 29, Ch. 229, § 6 ; Vermont, Rev. St. (1880) 
 Tit. 15, Ch. 114, § 2224, p. 451 ; West Virginia, Rev. St., Ch. 70, § 8, p. 
 500; Virginia, Code, Tit. 31, Ch. 106, §8; Illinois, see Stravm v. Straim's 
 Heirs, 50 111. 276, the duration of the right is extended until dower is as- 
 signed. 
 
 In Michigan, Comp. Laws, Vol. 2, Tit. 22, Ch. 151, §4291; Oregon, 
 Stats., Ch. 17, Tit. 1, § 23 ; Nebraska, Comp. Laws, Pt. 1, Ch. 23, § 22 ; 
 Ohio, Rev. St. (1880), Pt. 2, Tit. 4, Ch. 3, §4188, p. 1049 ; Kentucky, Gen. 
 St., Ch. 52, § 8, p. 530, the duration is fixed at one year. 
 
 In Maine, Rev. St., Tit. IX., Ch. 103, § 14, at ninety days. 
 
 In Arkansas, at two months ; and if dower be not assigned within that 
 time, the widow may retain possession of the decedent's farm until dower 
 is assigned. Rev. St., Ch. XLIX., §§ 2226, 2227 ; and see Carnall v. Wilson, 
 21 Ark. 62. 
 
 The statutes of New York, Rev. St., Pt. 2, Ch. 1, Tit. 3, § 17, p. 2199 ; 
 New Hampshire, Gen. Laws, Tit. 24, Ch. 202, § 12, p. 475 ; and Massa- 
 chusetts, Pub. Sts. (1882), Ch. 124, § 3, p. 741, recognize the old term of 
 forty days. 
 
 In Alabama, the widow is likewise entitled to possession of the ofiices 
 and buildings appurtenant to the manor. 
 
 In Indiana, the right extends to the messuage and portion of the farm 
 or land necessarily attached to the house, Grimes v. Wilson, 4 Blackf 331. 
 
 In Kentucky it extends to the whole plantation, Chaplin v. Simmon's 
 
404 Thompson v. Mokeow. 
 
 E&irs, 7 T. B. Mon. 337 ; White v. Clarke, Id. 640 ; Rmjroe's Meira v. Taylor, 
 12 B. Mon. 402. 
 
 Land at a distance is not considered a part of the messuage or plantation, 
 Sharpley v. Jones, 5 Barring. 873 ; or lands which, having been wild, have 
 been cleared and added to the plantation since the husband's death. White 
 V. Clarke, 7 T. B. M. 640. 
 
 The right of quarantine exists only as to land of which the widow is 
 dowable, Voelckner v. Hudson, 1 Sand. Sup. Ct. 215 ; Harrison v. Boyd, 36 
 Ala. 203 ; and hence does not extend to leaseholds, Pizmla v. Campbell, 46 
 Ala. 35 ; Yaehkner v. Hudson, supra. It is confined to what was the actual 
 residence of the husband, Clay v. Sanders, 43 Ala. 287 ; Oghoume v. Og- 
 boume's Admr., 60 Id. 616 ; and hence, in a case where the husband owned 
 but one house, and did not live therein, the widow could have no quarantine. 
 Clay V. Sanders, supra. It does not cover crops which would otherwise be 
 assets in the hands of the executors. Singleton's Heirs v. Singleton's Exr., 
 6 Dana 87. It is not given to a widow who lived apart from her husband 
 at the time of his death, Rioh v. Rich, 7 Bush. 53. 
 
 Quarantine is not subject to execution. Doe ex d. Cook v. Webb, 18 Ala. 
 814 ; Camall v. Wilson, 21 Ark. 62 ; it being not an estate, but a mere per- 
 sonal right. Roach v. Davidson, 3 Brev. 80 ; Bleecker v. Hennion, 23 N. J. 
 Eq. 123. The widow, during her quarantiae, is not liable for taxes, Graves 
 V. Cochran, 68 Mo. 74. 
 
 Incidents of Quarantine. 
 
 During her possession, by virtue of quarantine, the widow's right is abso- 
 lute, and the heirs can claim from her no rent, McLaughlin v. Godwin, 23 
 Ala. 846 ; or account, McLaughlin v. McLaughlin, 22 N. J. Eq. 505, revers- 
 ing S. C. 20 Id. 190. She is not bound to occupy the premises in person, 
 but may do so by a tenant, if she does not surrender her right of posses- 
 sion. Doe ex d. CaiUaret v. Bernard, 7 Sm. & M. 319 ; White v. Clarke, 7 T. 
 B. M. 641 ; Oraige v. Morris, 25 K J. Eq. 467 ; and if the possession is 
 withheld, she can recover rent from the administrator, Boynton v. Sawyer, 
 35 Ala. 497 ; or she can obtain possession by ejectment. Miller v. Talley, 48 
 Mo. 503 ; her right is so absolute, that where the widow is also administra- 
 trix, and rents out the mansion, she will not be accountable therefor to the 
 heir, McLaughlin v. Godwin, supra ; but where she is administratrix in a 
 State according to whose laws the administrator controls the whole estate, 
 she cannot, by virtue of her double position, claim to hold by quarantine 
 indefinitely ; and if she do not institute proceedings to assign dower within 
 a reasonable time, she wUl be chargeable, as administratrix, with two-thirds 
 
Thompson v. Morrow. 405 
 
 of the rfents and profits of the land from the time at which dower should 
 have been assigned, Benagh v. Turrentine, 60 Ala. 557. 
 
 The right is not lost by the subsequent marriage of the widow, Shelton 
 V. Carrol, 16 Ala. 146 ; WaUaee v. Hall's Heirs, 19 Ala. 367 ; or by an 
 election to take ia lieu of dower the statutory child's share of the hus- 
 band's estate, Orrick v. Bobbins, 34 Mo. 226 ; or by taking a statutory allow- 
 ance for support during administration, Farnsworth v. Cole, 42 Wise. 403. 
 
 The right rests on possession, and, if the widow surrenders, she cannot 
 retake possession ; she must look to her remedies for withholding dower 
 alone, and cannot take and hold the mansion by way of security, Den ex d. 
 Smallwood v. Bilderback, 1 Harr. (N. J.) 497. The law is otherwise in 
 Georgia, where the common-law rule does not prevail, Bambo v. Bell, 3 Ga. 
 207. 
 
 Where, however, she has not surrendered possession, but it is withheld 
 from her, she may enforce it by an ejectment, Miller v. Talley, 48 Mo. 503 ; 
 Brovni v. Moore, Supreme Court of Missouri, 1882, 13 Eeporter 768. 
 
 On the expiration of the time limited for quarantine, the widow must 
 leave the premises, although her dower be not yet assigned ; she cannot 
 hold them in order to compel an assignment, but is put to her action, Clark 
 V. O'Donaghy, 7 Johns. 247. 
 
 Detention of Dower— Kemedies for. 
 
 At common law, the widow could originally recover no damages where 
 her dower was detained from her, Kendall v. Honey, 5 T. B. Mon. 282 ; 
 Johnson v. Thomas, 2 Paige 377 ; as her right ran only from the time of 
 assignment. The statute of Merton, 20 Hen. III., C. 1, however, gave the 
 widow the right to recover damages where the husband died seized. See 
 Embree v. Ellis, 2 Johns. 119 ; but the statute gave no damages as against 
 an alienee of the husband, Kendall v. Honey, supra ; Marshall v. Anderson, 
 1 B. Mon. 198 ; and it has been held that, under the statute, the widow 
 cannot recover as damages back rents, even from the time of suit begun, 
 HiU V. Golden, 16 B. Mon. 653 ; Carton's Heirs v. Bates, 4 Id. 367. 
 
 But equity would give an account of rents and profits even when no 
 damages were recoverable under the statute, Keith v. Trapier, 1 Bailey Eq. 
 63, the opinion in which case confines the effect of the decision in Heyward 
 V. Cuthbert, 1 McCord 386, that damages could not be recovered against 
 an alienee for the detention of dower, to the recovery of damages eo nomine 
 at law. In Price v. Hobbs, 47 Md. 359, it was held that equity would give 
 damages accruing after dower had been demanded ; and in Clark v. 
 Tompkins, 1 So. Car. 119, it was held that the widow, after assignment of 
 
406 Thompson v. Moeeow. 
 
 dower, was entitled to an account from the time her right attached ; but 
 see Johnson v. Thomas, 2 Paige 377. 
 
 The right of the widow to recover damages for detention of dower has 
 been recognized by statute in many of the States, and it is thought that 
 even where no statute giving her the right to recover exists, equity would 
 give her an account. See Ehode Island, Sts., Tit. 29, Ch. 229, § 7, p. 637 ; 
 Virginia, Code, Tit. 31, Ch. 106, § 10,p. 855 ; West Virginia, Kev. St., Ch. 
 70, §§ 10, 11 ; New Jersey, Eev. St. (1877), p. 321, pi. 3 ; Maine, Kev. St. 
 (1871), Tit. IX., Ch. 103, § 20, p. 759 ; Delaware, Kev. Code (1874), Ch. 
 87, § 13 ; and see Green v. Tennant, 2 Harring. 336 ; Michigan, Comp. Laws, 
 Vol. 2, Tit. 22, Ch. 181, §§4292, 4294, p. 1363 ; Wisconsin, Kev. St., Pt. 2, 
 Tit. 20, Ch. 98, §§ 2175, 2177 ; Missouri, Kev. St., Vol. 1, Ch. 29, § 2206, p. 
 367 ; New Hampshire, Sts., Ch. 246, § 4, p. 566 ; Nebraska, Comp. Laws, 
 Pt. 1, Ch. 23, §§ 23, 25 ; Oregon, Stats., Ch. 17, Tit. 1, §§ 24, 26 ; New York, ' 
 Eev. Stat., PI. 2, Ch. 1, Tit. 3, §§ 19, 21, p. 2199 ; Massachusetts, Pub. St., 
 (1882)Ch. 114, §4. 
 
 Necessity for Demand to Enable Widow to Kecorer for Deten- 
 tion of Dower. 
 
 Until after demand, however, there can, as a rule, be no recovery by 
 the widow of rents, profits, or damages, either at law or in equity, Peyton v. 
 Jeffries, 50 111. 143 ; Strawn v. Strawn's Heirs, Id. 256 ; Spencer v. Weston, 
 1 Dev. & Bat. Law 213 ; Whitaker v. Greer, 129 Mass. 417 ; but a com- 
 mencement of a suit or action is held a sufiicient demand, Peyton v. Jeffries, 
 supra. In Khode Island, it is provided that the demand must be at least 
 one month before bringing the action ; see statute, supra ; and in Maine the 
 notice must be at least one month, and not more than one year prior to the 
 action, Kev. St., Tit. IX., Ch. 103, § 17. 
 
 The measure of damages for detention of dower is naturally the wid- 
 ow's third of the reasonable net yearly value of the premises, whether they 
 have been used or not, 0' Flaherty y. Sutton, 49 Mo. 583; and see Bolster 
 v. Oushman, 34 Me. 428 ; Wyman v. Richardson, 62 Id. 293. 
 
 Incidents of Dower — Taxes. 
 
 The widow is chargeable with the taxes upon her dower estate during its 
 continuance, Durhee v. Felton, 44 Wise. 467 ; Whyte v. Mayor and Ald&r- 
 men of Nashville, 2 Swan. 364 ; Linden v. Graham, 34 Barb. 316. 
 
Thompson v. Morrow. 407 
 
 Impeachability for Waste. 
 
 She is not permitted to commit waste, and it is provided in some States 
 that waste by the widow will cause a forfeiture of her estate, besides sub- 
 jecting her to an action for damages, Maine, Rev. St., 1871, Tit. IX., C. 
 103, § 6, p. 757 ; Massachusetts, Ch. 124, § 16, p. 742 ; Ohio, Rev. St., Pt. 
 2, Tit. IV., Ch. 3, §4194; Rhode Island, Stats., Tit. 29, Ch. 229, §22, p. 
 639 ; but in most States the penalty is limited to a subjection to damages. 
 New Hampshire, Gen. Stat. (1878), C. 202, § 6, p. 474 ; Michigan, Comp. 
 Laws, Vol. 2, § 4290 ; Wisconsin, Rev. St., § 2174 ; Nebraska, Comp. Laws, 
 Ch. 23, § 21 ; Oregon, Stats., Ch. 17, § 22, p. 587 ; Delaware, Rev. Code, 
 Ch. LXXXVIIL, § 1 ; Maryland, Rev. St., Tit. 24, Art. 50, § 221, p. 474. 
 
 It is not waste, however, for the dowress to clear an amount of land rea- 
 sonably necessary for the cultivation of the rest of her dower estate, Joyner 
 V. Speed, 68 N. C. 236 ; and see Macaulay's Ex'r. v. Dismal Swamp Land 
 Co., 2 Rob. (Va.) 507 ; Lanbeth v. Warner, 2 Jones Eq. 165 ; and she may 
 clear wood-land to a reasonable extent, Hastings v. Crunckleton, 3 Yeates 
 261 ; and the widow is not bound to use each parcel of her land as if her 
 husband had died seized of it alone, and, therefore, where she has been 
 assigned dower in wood-land and in cultivated land, she may take fuel from 
 the former for use upon the latter, without being guilty of waste, Childs v. 
 Smith, 1 Md. Ch. 483 ; but she may not, where she is endowed of two dis- 
 tinct pieces of land, take firewood from one for use in both, Cooh v. Cook, 
 11 Gray 123. 
 
 An injunction to stay waste will not be issued against a widow, as the 
 legal remedies are sufficient. Palmer v. Casperson, 17 N. J. Eq. 204. 
 
 Valuation of Dower Interest. 
 
 In the valuation of a dower interest, the same rules will apply as in the 
 case of the valuation of a life interest in general (q. v., page 214 et seq.). 
 The life tables have been recognized by the courts in connection with dower, 
 in McHenry v. Yokum, 27 111. 160 ; Alexander's Ex'x v. Bradley, 3 Bush- 667 ; 
 and the Maryland rule (see p. 215) in Dorsey v. Smith, 7 H. & J. 345 ; Aber- 
 erombie v. Biddle, 3 Md. Ch. 320. 
 
 In Dealing with Dower, IJegal Principles Prevail. 
 
 As dower is a strictly legal right, courts of equity, although they have 
 concurrent jurisdiction of the subject with the courts of law, will be gov- 
 erned in dealing with it by the same principles which control the latter 
 
408 Thompson v. MpEEOw. 
 
 courts, Stilson v. Stikon, 46 Conn. 18 ; Ocean Beach Association v. Brinky, 
 34 N. J. Eq. 438. 
 
 Dower Governed by Lex Loci Kei Sitae. 
 
 As dower is a right eoimected with or arising out of land, it will, where 
 the land in which the estate in dower is claimed is in one jurisdiction, and 
 the owner of the land is in another, be governed by the lex loci rei sitae, 
 Lamar v. Scott, 3 Strobh. 562 ; Duncan v. Dick, Walk. (S. C. Miss.) 281 ; 
 Jones V. Gerock, 6 Jones Eq. 190 ; Apperson's Ex'r v. Bolton, 29 Ark 418 ; 
 Mitchell V. Word, 60 Ga. 525. Thus in Lamar v. Scott, supra, the husband 
 was a resident of Georgia, in which State the law gave dower in the lands 
 of which the husband died seized only, the land was in South Carohna, 
 where dower was given as at common law, it was held that the widow should 
 be endowed according to the law of South Carolina. 
 
 A decree for dower made by a court in a State other than that of the 
 forum, will be held to be confined to lands in the State in which the decree 
 was made, Jones v. Gerock, supra. 
 
 Where Law has been Chang-ed during Coverture, by what Law 
 Widow's Kights are to be Determined. 
 
 We have seen that dower, while inchoate, is completely within the con- 
 trol of the Legislature, and can be by it modified, or even abolished, and 
 the question then arises, in a case ia which such action has been taken by 
 the Legislature, by the law, as of what time shall the widow's rights be 
 determined ? It may be stated, as a general rule, that where the question 
 arises between the widow and those whose interests have accrued simulta- 
 neously with the consummation of hers, the law at the time of the husband's 
 death will govern, and not that at the time of marriage. Ware v. Owens, 
 42 Ala. 212 ; Boyd v. Harrison, 36 Id. 533 ; Lucas v. Sawyer, 17 Iowa 517 ; 
 Barbour v. Barbour^ 46 Me. 9 ; Walker's Adm'r v. Deaver, 5 Mo. App. 139 ; 
 Kennerly v. Missouri Ins. Co., 11 Mo. 204 ; Riddick v. Walsh, 15 Id. 519 
 (the syllabus in this last case is incorrect, and does not correctly state the" 
 decision of the Court, for which see pages 537-8). 
 
 Where the question arises between the widow and an alienee of the hus- 
 band, the law at the time of the conveyance by the husband will prevail, 
 O'Ferrall v. Simplot, 4 Iowa 381 ; Young v. Wolcott, 1 Id. 174 ; Davis v. 
 O'Ferrall, 4 G. Greene 358 ; Comly v. Strader, 1 Ind. 134 ; Kennerly v. 
 Missouri Insurance Co., supra ; and there would seem to be no doubt as to 
 this where the efiect of the subsequent legislation has been to give dower 
 
Thompson v. Morrow. 409 
 
 where it before did not exist, or to increase its extent. Thus, in the case 
 last cited, it was held that where, as the law stood at the time of a sheriff's 
 sale, such a sale would bar the dower of the debtor's wife, and after the 
 sale an act of Legislature was passed which saved to the widow her dower 
 in such a case, the widow of one whose lands had been sold by the sheriff 
 prior to this act could not claim dower therein. In cases where the sub- 
 sequent legislation has reduced or abolished the wife's right of dower, there 
 is more question ; for while, on the one hand, a purchaser of the husband 
 has presumably taken subject to the right of dower, with full knowledge 
 thereof, and has probably, in fixing the price of the land, allowed therefor, 
 yet, on the other hand, the absolute power of the Legislature over the in- 
 choate dower must be remembered. 
 
 A curious result has been reached, in at least one State, from the combi- 
 nation of the principle of the absolute power of the Legislature over dower 
 inchoate, with the desire of the courts to protect the vested rights of a 
 purchaser. 
 
 In Indiana, prior to the year 1853, the widow was entitled to dower as 
 at common law. In that year an act was passed abolishing dower eo nomine, 
 and giving to the widow, in lieu thereof, a fee in one-third of the lands of 
 which the husband was seized during coverture. The effect of this legis- 
 lation upon lands conveyed prior to the act, came before the Supreme Court 
 in Strong v. Clem, 12 Ind. 37 ; in that case a husband had, prior to the 
 act, conveyed land, subject to dower, and died after the act had been passed. 
 The widow claimed dower from the purchaser, but the Court held that she 
 could have neither the common law dower nor the one-third in fee, for the 
 right to the first had been abolished, and the second could not be given to 
 her without a violation of the vested rights of the purchaser. The same 
 decision was made in Logan v. Walton, 12 Ind. 639 ; Strong v. Dennis, 13 Id. 
 514; Oiles V. Ghdlion, Id. 487 ; Frantz v. Harrow, Id. 507 ; and the princi- 
 ple was carried fizrther in the case of Hoshins v. Hutchings, 37 Ind. 324, 
 where it was held that the security of a mortgage creditor could not be 
 diminished by the enlargement of the widow's rights. 
 
 The same general question arose in Iowa in 1873, under legislation similar 
 in all respects, except that, while giving a one-third fee, it did not expressly 
 abolish dower, but repealed a statute establishing dower as at common law. 
 The conclusion reached by the Supreme Court of Iowa was favorable to 
 the right of the widow to the dower given by the law at the time of con- 
 veyance. In delivering the opinion of the Court, Miller, J., said : " It 
 has been held by this Court, that the right of the widow to dower depends 
 upon the law in force at the time of the death of the husband. . . . There 
 is another class of cases in this Court in which it has been held that the 
 35 
 
410 Thompson v. Morrow. 
 
 dower right of the widow should be governed by the law ia force at the 
 time of the alienation by the husband. On examination this seeming in- 
 consistency disappears. The cases last alluded to arose where the estate in 
 dower, under the law in force at the time of alienation, had been enlarged 
 by the law in force at the time of the decease of the husband, and were 
 decided mainly on the ground that the estate of dower having been en- 
 larged, the statute should not have a retroactive operation, so as to lessen 
 the estate purchased by the vendee. And since there was no question made 
 in those cases but tha? the widow was entitled to dower, either under the 
 law in force at the time of alienation or under that in force at the death 
 of the husband, the only controversy being whether she took under the 
 former or under the latter; and as the wife could not take under the statute 
 in force at the death of the husband without an infringement of the vested 
 rights of the purchaser, she was allowed to take her dower under the former 
 law. ... In this case, however, it is insisted that the wife, not being entitled 
 to dower under the law of 1862, giving an estate of one-third in fee-simple 
 in premises previously conveyed by the husband while the statute gave her 
 dower as at common law, and, since the Act of 1862 repealed the former 
 law in respect to dower, she cannot claim dower under that act, and hence, 
 that she is not entitled to dower at all in the farm in controversy. 
 
 " The right of the wife to be endowed of the lands of her husband, so long 
 as it is inchoate only, may be enlarged, abridged, or entirely taken away by 
 statute. . . . And if the Act of 1862, which repealed the Act of 1853, un- 
 der which the estate of dower was as at common law, had stopped with 
 simply a repeal of that act, we would have no hesitation in holding the 
 plaintiff not entitled to dower. But the Act of 1862, while it repealed 
 that of 1853, enlarged the estate of dower from a life estate in one-third of 
 the lands of the husband to an estate in fee-simple in such portion. The 
 evident purpose of the Legislature was not to take away the widow's dower, 
 but to enlarge it. It was a substitution of a fee-simple estate for an estate 
 for life. It was not intended to destroy the smaller estate, but to give a 
 greater one, and since the estate in fee-simple includes in it the lower and 
 inferior estate for life, the latter would be saved to the plaintiflf as it existed 
 under the law of 1853, in force when her husband conveyed the farm." 
 
 The learned judge considered the Indiana authorities, and, while recog- 
 nizing the distinction between the legislation of the States of Iowa and 
 Indiana, dissented from the principle of Strong v. Clem ; and see Craven v. 
 Winter, 38 Iowa 471. 
 
 After the above decisions in Iowa, the question was again raised in Indi- 
 ana, and an endeavor was made to induce the Court to reverse its former 
 decision ; it, however, adhered to it, and reaffirmed the law as laid down in 
 
Thompson v. Moeeow. 411 
 
 Strong v. Clem ; Taylor v. Sample, 51 Ind. 423 ; and see Colman v. De Wolf, 
 53 Ind. 428 ; Carr v. Brady, 64 Id. 28. 
 
 An exception to the rule that the law, as at the time of the husband's 
 death, is to control the right of dower, is found in North Carolina ; in that 
 State, from the year 1784 to the passage of the Act of 1868-9, the wife's 
 dower was subject to be defeated by the husband's conveyance ; by the Act 
 of 1868-9 it was restored as at common law ; it is held that property owned 
 by the husband prior to the passage of the act may still be conveyed by 
 him free of dower, Sutton v. Askew, 66 N. C. 172 ; Jenkins v. Jenkins, 82 Id. 
 208 ; Bruce v. Strickland, 81 Id. 267. 
 
Aliens. lUghts of Aliens with Keference to Real Property. 
 
 INGLIS, DEMANDANT v. THE TRUSTEES OF THE SAIL- 
 OR'S SNUG HARBOR IN THE CITY OF NEW YORK. 
 
 Supreme Court of the United States, January Term, 1880. 
 
 [Reported In 3 Peters 99.] 
 
 The testator gave all the rest and residue and remainder of his estate, real 
 and personal, comprehending a large real estate in the city of New York, 
 to the chancellor of the State of New York, and recorder of the city of 
 New York, etc. (naming several other persons hy their official descrip- 
 tion), to have and to hold the same unto them and their respective suc- 
 cessors in office to the uses and trusts, subject to the conditions and ap- 
 pointments declared in the will ; which were ; out of the rents, issues 
 and profits thereof, to erect and build upon the land upon which he re- 
 sided, which was given by the will, an asylum, or marine hospital, to be 
 called " the Sailor's Snug Harbor," for the purpose of maintaining and 
 supporting aged, decrepid, and worn-out sailors, etc. And after giving 
 directions as to the management of the fund by his trustees, and declar- 
 ing that the institution created by his will should be perpetual, and that 
 those officers and their successors should for ever continue the governors 
 thereof, etc., he adds, " it is my will and desire that if it cannot legally 
 be done according to my above intention, by them, without an act of the 
 Legislature, it is my will and desire that they will as soon as possible ap- 
 ply for an act of the Legislature to incorporate them for the purpose above 
 specified ; and I do further declare it to be my will and intention, that 
 the said rest, residue, etc., of my estate should be at all events applied 
 for the uses and purposes above set forth ; and that it is my desire all 
 courts of law and equity will so construe this my said last will as to have 
 the said estate appropriated to the above uses, and that the same should 
 in no case, for want of legal form or otherwise, be so construed as that 
 my relations, or any other persons, should heir, possess or enjoy my 
 property, except in the manner and for the uses herein above specified." 
 
 "Within five years after the death of the testator, the Legislature of the State 
 of New York, on the application of the trustees, also named as executors 
 of the will, passed a law constituting the persons holding the offices 
 designated in the will, and their successors, a body corporate, by the 
 name of " the Trustees of the Sailor's Snug Harbor," and enabling them 
 to execute the trusts declared in the will. 
 
 412 
 
Inglis v. The Sailor's Snug Haeboe. 413 
 
 This is a valid devise to divest the heir of his legal estate, or at all events to 
 affect the lands in his hands with the trust declared in the will. 
 
 If, after such a plain and unequivocal declaration of the testator with respect 
 to the disposition of his property, so cautiously guarding against and 
 providing for every supposed difliculty that might arise, any technical 
 objection shall now be interposed to defeat his purpose ; it will form an 
 exception to what we find so universally laid down in all our books as a 
 cardinal rule in the construction of wills, that the intention of the tes- 
 tator is to be sought after and carried into eflfeet. If this intention can- 
 not be carried into effect precisely in the mode at first contemplated by 
 him, consistently with the rules of law, he has provided an alternative, 
 which with the aid of the act of the Legislature must remove every dif- 
 ficulty. 
 
 In the case of " The Baptist Association v. HarVs Executors," 4 Wheat. 27, 
 the Court considered the bequest void for uncertainty as to the devisees, 
 and the property vested in the next of kin, or was disposed of by some 
 other provisions of the will. If the testator in that case had bequeathed 
 the property to the Baptist Association, on its becoming thereafter and 
 within a reasonable time incorporated, could there be a doubt but that 
 the subsequent incorporation would have conferred on the association 
 the capacity of taking and managing the fund ? 
 
 "Whenever a person by will gives property, and points out the object, the 
 property, and the way in which it shall go, a trust is created, unless he 
 shows clearly, that his desire expressed, is to be controlled by the trustee, 
 and that he shall have an option to defeat it. 
 
 What are the rights of the individuals composing a society, and living under 
 the protection of the government, when a revolution occurs, a dismem- 
 berment takes place, and when new governments are formed, and new 
 relations between the government and the people are established. A 
 person born in New York before the 4th of July, 1776, and who remained 
 an infant with his father in the city of New York, during the period it 
 was occupied by the British troops ; his father being a royalist and hav- 
 ing adhered to the British government, and left New York with the British 
 troops, taking his son with him, who never returned to the United States, 
 but afterwards became a bishop of the Episcopal Church in Nova Scotia ; 
 such a person was born a British subject, and continued an alien, and is 
 disabled from taking land by inheritance in the State of New York. 
 
 If such a person had been born after the 4th of July, 1776, and before the 
 15th of September, 1776, when the British troops took possession of the 
 city of New York and the adjacent places, his infancy incapacitated 
 him from making an election for himself, and his election and character 
 followed that of his father ; subject to the right of disaffirmance in a 
 reasonable time after the termination of his minority ; which never hav- 
 ing been done, he remained a British subject, and disabled from inherit- 
 ing land in the State of New York. 
 35* 
 
414 Inglis v. The Sailor's Snug Haeboe. 
 
 The rule as to the point of time at which the American ante nati ceased to be 
 British subjects differs in this country and in England, as established by 
 the courts of justice in the respective countries. The English rule is to 
 take the date of the treaty of peace in 1783. Our rule is to take the 
 date of the Declaration of Independence. 
 
 The settled doctrine in this country is, that a person born here, but who left 
 the country before the Declaration of Independence, and never returned 
 here, became an alien and incapable of taking lands subsequently by de- 
 scent. The right to inherit depends upon the existingstate of allegiance 
 at the time of the descent cast. 
 
 The doctrine of perpetual allegiance is not applied by the British courts to 
 the American ante nati ; and this Court, in the case of Blight's Lessee v. 
 Bocliester, 7 Wheat. 544, adopted the same rule with respect to the rights 
 of British subjects here. That although born before the revolution, they 
 are equally incapable with those born subsequent to that event of inherit- 
 ing or transmitting the inheritance of lands in this country. 
 
 The British doctrine therefore is, that the American ante nati, by remaining 
 in America after the peace, lost their character of British subjects ; and 
 our doctrine is, that by withdrawing from this country, and adhering to 
 the British government, they lost, or perhaps more properly speaking, 
 never acquired the character of American citizens. 
 
 The right of election must necessarily exist in all revolutions like ours, and 
 is well established by adjudged cases. 
 
 This Court in the case of M'Ilvaine''s Lessee v. Goxe, 4 Cranch 211, fully rec- 
 ognized the right of election ; but they considered that Mr. Coxe had 
 lost that right by remaining in the State of New Jersey, not only after 
 she had declared herself a sovereign State, but after she had passed laws 
 by which she declared him to be a member of, and in allegiance to, the 
 new government. 
 
 Allegiance may be dissolved by the mutual consent of the government and 
 its citizens or subjects. The government may release the governed from 
 their allegiance. This is even the British doctrine. 
 
 C. B. by her last will and testament devised " all her estate, real and per- 
 sonal, wheresoever and whatsoever in law or equity, in possession, re- 
 version, remainder or expectancy, unto her executors and to- the survivor 
 of them, his heirs and assigns forever," upon certain designated trusts : 
 under the statute of wills of the State of New York (1 N. Y. Eevised 
 Laws 364), all the rights of the testator to real estate, held adversely 
 at the time of the decease of the testator, passed to the devisees by this 
 will. 
 
 It is the uniform rule of this Court with respect to the title to real prop- 
 erty, to apply the same rule which is applied in State tribunals in like 
 cases. 
 
 The right of an absent and absconding debtor to real estate held adversely, 
 passed to and became vested in the trustees by the act of the Legisla- 
 
Inglis v. The Sailor's Snug Harbor. 415 
 
 ture of New York, passed April 4, 1786, entitled " an Act for relief 
 against absconding and absent debtors." 
 
 In a writ of right the tenant may, on the raise joined, set up a title out of 
 himself and in a third person. If anything which fell from this Court 
 in the case of Greene v. Liter, 8 Cranch 229, can be supposed to give 
 countenance to the opposite doctrine, it is done away by the explanation 
 given by the Court in Greene v. Watkins, 7 Wheaton 31. It is there laid 
 down that the tenant may give in evidence the title in a third person 
 for the purpose of disproving the demandant's seizin : that a writ of 
 right does bring into controversy the mere right of the parties to the 
 suit ; and if so, it by consequence authorizes either party to establish 
 by evidence that the other has no right whatever in the demanded 
 premises ; or that his mere right is inferior to that set up against him. 
 
 In a writ of right on the raise joined on the raere right, under a count for 
 the entire right, a demandant may recover a less quantity than the 
 entirety. I 
 
 This case came before the Court at January term, 1829, from the 
 Circuit Court of the United States for the southern district of New 
 York : on points of disagreement certified by the judges of that Court. 
 After argument by counsel, it was held under advisement until the pres- 
 ent term. 
 
 It was a writ of right, brought in the Circuit Court, for the recovery 
 of certain real estate situate in the city of New York, whereof Eobert 
 Richard Randall died seized and possessed. 
 
 The count was upon the seizin of Robert Richard Randall, and went 
 for th^ whole premises. 
 
 Paul R. Randall and Catherine Brewerton, a brother and sister of 
 Robert Richard Randall, both survived him, but had since died, with- 
 out issue. 
 
 The demandant claimed his relationship to Robert Richard Randall, 
 through Margaret Inglis, his mother, who was a descendant of John 
 Crooke, the common ancestor of Robert Richard Randall, Catherine 
 Brewerton, and Paul R. Randall. 
 
 The tenants put themselves upon the grand assize, and the mise was 
 joined upon the mere right. 
 
 The cause was tried at October term, 1827. 
 
 The counsel for the tenants began with the evidence, and showed that 
 they had been in possession for a number of years, claiming and hold- 
 ing the land as owners. 
 
 The seizin of Robert Richard Randall was then proved, and that he 
 
416 Inglis v. The Sailor's Snug Harbor. 
 
 purchased from one baron Poelnitz. The genealogy of the demandant 
 as next collateral heir of Robert E,. Eandall on the part of his mother, 
 and that the blood of Thomas Eandall, the father of Eobert Eichard 
 Eandall, was extinct, was proved. 
 
 It was in evidence that the British troops entered into New York on 
 the 15th of September, 1776, and took and had full possession thereof,' 
 and of the adjacent bays and islands, and established a civil govern- 
 ment there under the authority of the British commander-in-chief. 
 
 Evidence was given to prove that the demandant was not more than 
 one year old when the British troops entered the city of New York, 
 where he was born ; that the father of the demandant was a native of 
 Ireland, and had resided for some time in New York, and continued to 
 reside there until he left there for England, on the day of or the day 
 before the evacuation of New York, the 25th of November, 1783. He 
 took the demandant with him to England, remained there two years, 
 was appointed a bishop, and went to Nova Scotia in 1785 or 1786, and 
 there resided until his death. The mother of the demandant died in 
 New York on the 21st of September, 1783, a little while before the 
 evacuation thereof by the British troops. It was always considered by 
 a witness who testified in the cause, that Charles Inglis, the father of 
 the demandant, was a royalist. The demandant was certainly born be- 
 fore the year 1779 ; in 1783 he could not speak plainly, and was con- 
 sidered not mt)re than five years old, between four and five. He took 
 his degree of master of arts in England, was there ordained a clergy- 
 man; his place of residence from the time he first arrived at Nova 
 Scotia was with his father, and he has continued to reside there ever 
 since. He went to England to be consecrated a bishop ; which character 
 he now holds, being bishop of Nova Scotia. Charles Inglis, the father 
 of the demandant, had four children, the eldest of which, a son, died 
 an infant, 20th of January, 1782, two daughters, and the demandant, 
 who was the youngest child. 
 
 The following proceedings of a convention of the State of New York, 
 before the British entered the city, were in evidence : 
 
 Tuesday Aftbenook, July 16, 1776. 
 Present, General "WoodhuU, president, and the members of the con- 
 vention. 
 
 Whereas, the present dangerous situation of this State demands the 
 
Inglis v. The Sailor's Snxjg Harboe. 417 
 
 unremitted attention of every member of the convention : Resolved 
 unanimously, that the consideration of the necessity and propriety of 
 establishing an independent civil government be postponed until the 
 first day of August next, and that in the meantime, 
 
 " Resolved unanimously, that all magistrates and other officers of 
 justice in this State, who are well affected to the liberties of America, 
 be requested, until further orders, to exercise their respective offices, 
 provided, that all processes, and other their proceedings, be under the 
 authority and in the name of the State of New York. 
 
 " Resolved unanimously, that all persons abiding within the State of 
 N«v- York, and deriving protection from the laws of the same, owe 
 allegiance to the said laws, and are members of the State : and that all 
 persons passing through, visiting, or making a temporary stay in said 
 State, being entitled to tlie protection of the laws during the time of 
 such passage, visitation, or temporary stay, owe, during the same, 
 allegiance thereto. 
 
 " That all persons, members of or owing allegiance to this State, as 
 before described, who shall levy war against the said State, within the 
 same, or be adherent to the king of Great Britain, or others, the ene- 
 mies of the said State, within the same, giving to him or them aid or 
 comfort, are guilty of treason against the State, and being thereof con- 
 victed, shall suffer the pains and penalties of death." 
 
 The tenants gave in evidence the acts of the Legislature of New York : 
 " For the forfeiture of the estates of persons who adhered to the ene- 
 mies of the State," etc., passed the 22d of October, 1779 ; the " act sup- 
 plementary to the act to provide for the temporary government of the 
 southern part of this State," etc., passed the 23d of October, 1779 ; and 
 the supplement thereto, passed the 27th of March, 1783. 
 
 Robert Richard Randall died in the city of New York between the 
 1st of June and the 1st of July, 1801, having on the 1st of June of 
 that year made his last will and testament; probate of which was 
 regularly made in the city of New York. 
 
 The provisions of the will of Robert Richard Randall under which 
 the tenants claimed their title are the following : 
 
 " 6. As to and concerning all the rest, residue and remainder of my 
 estate, both real and personal ; I give, devise and bequeath the same 
 unto the chancellor of the State of New York, the mayor and recorder 
 of the city of New York, the president of the chamber of commerce in 
 
 2B 
 
418 Inglis v. The Sailoe's Snug Harbor. 
 
 the city of New York, the president and vice-president of the marine 
 society of the city of New York, the senior minister of the Episcopal 
 Church in the said city, and the senior minister of the Presbyterian 
 Church in the said city, to have and to hold all and singular the said 
 rest, residue, and remainder of my said real and personal estate, unto 
 them the said chancellor of the State of New York, mayor of the city 
 of New York, the recorder of the city of New Yoi-k, the president of 
 the chamber of commerce, president and vice-president of the marine 
 society, senior minister of the Episcopal Church, and senior minister of 
 the Presbyterian Church in the said city, for the time being, and their 
 respective successors in the said offices forever, to, for, and upon the uies, 
 trusts, intents and purposes, and subject to the directions and appoint- 
 ments hereinafter mentioned and declared concerning the same, that is 
 to say, out of the rents, issues and profits of the said rest, residue, and 
 remainder of my said real and. personal estate, to erect and build upon 
 some eligible part of the land upon which I now reside, an asylum, or 
 marine hospital, to be called ' the Sailor's Snug Harbor,' for the pur- 
 pose of maintaining and supporting aged, decrepid, and worn-out sailors, 
 as soon as they, my said charity trustees, or a majority of them, shall 
 judge the proceeds of the said estate will support fifty of the said sailors, 
 and upwards ; and I do hereby direct, that the income of the said real 
 and personal estate, given as aforesaid to my said charity trustees, shall 
 forever hereafter be used and applied for supporting the asylum, or 
 marine hospital, hereby directed to be built, and for maintaining sailora 
 of the above description therein, in such manner as the said trustees, or a 
 majority of them, may from time to time, or their successors in office 
 may from time to time direct. And it is my intention that the institution 
 hereby directed and created should be perpetual, and that the above- 
 mentioned officers for the time being, and their successors, should for- 
 ever continue and be the governors thereof, and have the superintend- 
 ence of the same. And it is my yv^ill and desire, that if it cannot legally 
 be done, according to my above intention, by them, without an act of 
 the Legislature, it is my mil and desire that they will as soon as possible 
 apply for an act of the Legislature to incorporate them for the purposes 
 above specified. And I do further declare it to be my will and inten- 
 tion, that the said rest, residue and remainder of my real and personal 
 estate, should be at all events applied for the uses and purposes above 
 set forth; and that it is my desire all courts of law and equity will so 
 
Inglis v. The Sailor's Snug Haebok. 419 
 
 construe this my said will, as to have the said estate appropriated to the 
 above uses, and that the same should in no case, for want of legal form 
 or otherwise, be so construed as that my relations, or any other persons, 
 should heir, possess, or enjoy my property, except in the manner and 
 for the uses herein above specified. 
 
 " And, lastly, I do nominate and appoint the chancellor of the State of 
 New York, for the time being, at the time of my decease ; the mayor 
 of the city of New York, for the time being ; the recorder of the city 
 of New York, for the time being ; the president of the chamber of com- 
 merce, for the time being ; the president and vice-president of the marine 
 society in the city of New York, for the time being ; the senior minister 
 of the Episcopal Church in the city of New York, and the senior minister 
 of the Presbyterian Church in the said city, for the time being ; and their 
 successors in office after them, to be the executors of this my last will 
 and testament, hereby revoking all former and other wills, and declar- 
 ing this to be my last will and testament." 
 
 It was admitted, that at the time of the decease of Robert Richard 
 Randall, and of the probate of the will, the offices named in the will 
 were respectively filled by different persons, and that they, or some of 
 them, immediately upon the death of the testator, entered upon the 
 premises under the will, claiming to be the owners in fee, until the Legis- 
 lature of New York, on their application, on the 6th of Februaiy, 1806, 
 passed " an act to incorporate the trustees of the marine hospital, called 
 the Sailor's Snug Harbor, in the city of New York." 
 
 Those offices continued to be filled respectively by diffetent persons, 
 from the time of the death of the testator until the time of the trial. 
 
 The act incorporating " the trustees of the marine hospital," etc., pro- 
 vides. 
 
 Whereas, it is represented to the Legislature, that Robert Richard Ran- 
 dall, late of the city of New York, deceased, in and by his last will and 
 testament, duly made and executed, bearing date the 1st day of June, 
 in the year of our Lord, 1801, did, after bequeathing certain specific 
 legacies therein mentioned, among other things give and devise and be- 
 queath all the residue of his estate, both real and personal, unto the 
 chancellor of this State, the mayor and recorder of the city of New York, 
 the president of the chamber of commerce in the city of New York, the 
 president and vice-president of the marine society of the city of New 
 York, the senior minister of the Episcopal Church in the said city, and 
 
420 Inglis v. The Sailoe's Snug Harbor. 
 
 the senior minister of the Presbyterian Church in the said city, for the 
 time being, and to their successors in office respectively, in trust, to re- 
 ceive the rents, issues and profits thereof, and to apply the same to the 
 erecting or building on some eligible part of the land whereon the tes- 
 tator then resided, an asylum, or marine hospital, to be called " the 
 Sailor's Snug Harbor," for the purpose of maintaining and supporting 
 aged, decrepid, and worn-out sailors, as soon as the said trustees, or a 
 majority of them, should judge the proceeds of the said estate would 
 support fifty of such sailors and upwards ; and that the said testator, in 
 his said will, declared his intention to be, that the said estate should at 
 all events be applied to tlie purposes aforesaid, and no other ; and if his 
 said intent could not be carried into effect without an act of incoi-pora- 
 tion, he therein expressed his desire that the said trustees would apply 
 to the Legislature for such incorporation ; and, whereas, the said trustees 
 have represented that the said estate is of considerable value, and if 
 prudently managed, will in time enable them to erect such hospital, and 
 carry into effect the intent of the testator ; but that as such trustees, and 
 being also appointed executors of the said will, in virtue of their offices, 
 and only during their continuance in the said offices, they have found 
 that considerable inconveniences have arisen in the management of the 
 said estate, from the changes which have taken place in the ordinary 
 course of the elections and appointments to those offices, and have prayed 
 to be incorporated for the purposes expressed in the said will, and such 
 prayer appears to be reasonable : therefore, 
 
 1. Be it enacted by the people of the State of New York,, represented 
 in senate and assembly, that John Lansing, Jun., the chancellor of this 
 State, De Witt Clinton the mayor, and Maturin Livingston the recorder 
 of the city of New York, John Murray the president of the chamber 
 of commerce of the city of New York, James Farquhar the president, 
 and Thomas Farmer the fii-st vice-president of the marine society of the 
 city of New York, Benjamin Moore, senior minister of the Episcopal 
 Church in the said city, and John Rogers, senior minister of the Presby- 
 terian Chm'ch in the said city, and their successors in office respectively, 
 in virtue of their said offices ; shall be, and hereby are constituted and 
 declaimed to be a body corporate, in fact, and in name, by the name and 
 style of " the Trustees of the Sailor's Snug Harbor in the city of New 
 York ; " and by that name they and their- successors shall have continual 
 succession, and shall be capable in law of suing and being sued, plead- 
 
Inglis v. The Sailor's Snug Harbor. 421 
 
 ing and being impleaded, answering and being answered unto, defend- 
 ing and being defended, in all courts and places whatsoever, and in all 
 manner of actions, suits, complaints, matters and causes whatsoever; 
 and that they and their successors may have a common seal, and may 
 change and alter the same at their pleasure ; and also, that they and 
 their successors, by the name and style aforesaid, shall be capable in law 
 of holding and disposing of the said real and personal estate, devised 
 and bequeathed as aforesaid, according to the intention of the said will ; 
 and the same is hereby declared to be vested in them, and their succes- 
 sors in office, for the purpose therein expressed ; and shall also be capable 
 of purchasing, holding and conveying any other real and personal estate, 
 for the use and benefit of the said corporation, in such manner as to 
 them, or a majority of them, shall appear to be most conducive to the 
 interest of the said institution. 
 
 The second section gives to the trustees the power to make rules and 
 regulations, and to appoint officers for the government and business of 
 the corporation, and provides for the mode of transacting the same. 
 
 The third section declares that " this act shall be deemed and taken ' 
 to be a public act, and be construed in all courts and places, benignly 
 and favorably, for the purposes therein intended." 
 
 On the 25th of March, 1814, an act supplementary to the act of in- 
 coi-poration was passed, declaring, that persons holding certain offices 
 should act as trustees, and declaring it to be the duty of the coi-poration 
 to make an annual report of their funds to the common council of the 
 city, of the state of their funds. 
 
 The counsel for the tenants gave in evidence the act of the Legislatm-e 
 of New York, " for relief against absconding and absent debtors," passed 
 the 4th of April, 1786 ; and a report made to the superior court of 
 judicature of the State of New York, of proceedings under the act 
 against Paul Richard Eandall, by which he was declai-ed an absent 
 
 debtor. 
 
 Under this act all the estate, real as well as personal, of Paul Richai-d 
 Randall, as an absent debtor, of what kind or nature soever the same 
 might be, were, on the 13th of November, 1800, attached, seized, and 
 taken, and were, by the recorder of New York, under and In pursuance 
 of the provisions of the law, upon the 22d of December, 1801, by an 
 instrument of wiiting under his hand and seal, conveyed to Charles 
 Ludlow, James Brewerton, and Roger Strong, all of the city of New 
 36 
 
422 Inglis v. The Sailor's Snug Haebor. 
 
 York ; to be trustees for all the creditors of the said Paul Richard Ran- 
 dall, who afterwards duly qualified as trustees. 
 
 Subsequently, on the 14th of April, 1808, upon a further application 
 to the recorder of New York, Paul Richard Randall being still absent, 
 other trustees are appointed, according to law, who were, on the same 
 day, qualified to act as trustees. 
 
 The demandant gave in evidence the following rules of the supreme 
 court of judicature of the people of the State of New York : 
 
 February 17; 1804. 
 
 " In the matter of Paul Richard Randall, an absent debtor. 
 
 " On reading and filing the petition of Alexander Stewart, "White 
 Matlack, and Catherine Brewerton, agents and attorneys of the said 
 Paul Richard Randall, and also reading and filing the answer of Charles 
 Ludlow, James Brewerton, and Roger Strong, trustees for all the cred- 
 itors of the said Paul Richard Randall, to the said petition, and on 
 motion of Mr. Hamilton, attorney of the said Alexander Stewart, White 
 Matlack, and Catherine Brewerton, it is ordered by the Court, that the 
 said trustees pay to the said Paul Richard Randall, or to his said agents 
 and attorneys, for his use, the sum of five thousand five hundred dol- 
 lars, out of the moneys now remaining in the hands of the said trus- 
 tees." 
 
 August 9, 1804 
 
 " In the matter of Paul R. Randall, an absent debtor, and his as- 
 signees, etc. 
 
 " On reading and filing the petition of Alexander Phcenix, the attorney 
 and agent for Paul Richard Randall, together with a certified copy of 
 the power of attorney, and the acknowledgments of the trustees and 
 former attorneys of the said Paul, thereunto annexed, and on motion of 
 Mr. Van Wyck, of counsel for the said Alexander, ordered that the rule 
 heretofore, in February term last, made in the said matter, be vacated, 
 and that the said sum of five thousand five hundred dollars, acknowl- 
 edged to be still remaining in the hands of the said Charles Ludlow, 
 James Brewerton, and Roger Strong, trustees as aforesaid, be paid over 
 by them to the said Alexander Phcenix, as the attorney and agent of the 
 said Paul Richard Randall." 
 
 It appeared in evidence, that' Catherine Brewerton died some time in 
 
Inqlis v. The Sailoe's Snug Harbor. 423 
 
 or about the year of our Lord, 1815, and that Paul R. Eandall died 
 some time in the year of our Lord, 1820, Catherine Brewerton, having 
 first, while a widow, made her last will and testament, dated the 5th of 
 June, A. D. 1815, duly executed and attested to pass real estate, and 
 devised among other things as follows, that is to say : 
 
 " Secondly, I give, devise and bequeath, all my estate, real and per- 
 sonal, whatsoever and wheresoever, in law or equity, in possession, re- 
 version, remainder or expectancy (excepting such as is herein otherwise 
 specially mentioned), unto my executors hereinafter named, and to the 
 survivor of them, his heirs and assigns forever, upon trust nevertheless 
 for the uses and purposes hereinafter mentioned and intended, that is to 
 say, that my executors shall," etc. 
 
 Upon the trial of the cause in the circuit court the judges were op- 
 posed in opinion upon the following points, which were certified to the 
 Court: 
 
 I. Whether, inasmuch as the count in the cause is for the entire right 
 ia the premises, the demandant can recover a less quantity than the 
 entirety. 
 
 II. Whether John Inglis, the demandant, was or was not capable of 
 taking lands in the State of New York by descent, which general ques- 
 tion presents itself under the following aspects : 
 
 1. Whether, in case he was born before the 4th of July, 1776, he is 
 an alien, and disabled from taking real estate by inheritance. 
 
 2. Whether, in case he was born after the 4th of July, 1776, and 
 before the 15th of September of the same year, when the British took 
 possession of New York, he would be under the like disability. 
 
 3. Whether, if he was born after the British took possession of New 
 York, and before the evacuation on the 25th of November, 1783, he 
 would be under the like disability. 
 
 4. What would be the effect upon the right of John Inglis to inherit 
 real estate in New York, if the grand assize should find that Charles 
 Inglis, the father, and John Inglis, the demandant, did, in point of fact, 
 elect to become and continue British subjects and not American citizens ? 
 
 III. Whether the will of Catherine Brewerton was sufficient to pass 
 her right and interest in the premises in question, so as to defeat the de- 
 mandant in any respect ; the premises being, at the date of the will and 
 ever since, held adversely by the tenants in this suit. 
 
 IV- Whether the proceedings against Paul R. Randall, as an absent 
 
424 Inglis v. The Sailor's Snug Haebor. 
 
 debtor, passed his right or interest in the lands in question to, and vested 
 the same in the trustees appointed under the said proceedings, or either 
 of them, so as to defeat the demandant in any respect. 
 
 V. Whether the devise in the will of Eobert Eichard Randall of the 
 lands in question is a valid devise, so as to divest the heir at law of his 
 legal estate, or to aifect the lands in his hands with a trust. 
 
 The cause was argued by Mr. Ogden and Mr. Webster, for the de- 
 mandant, and by Mr. Talcott and Mr. Wirt, for the tenants. The argu- 
 ment was commenced and concluded by the counsel for the tenants. 
 
 Mr. Justice Thompson delivered the opinion of the Court. 
 
 This case comes up from the circuit court for the southern district of 
 New York, upon several points, on a division of opinion certified by 
 that Court. In the examination of these points, I shall pursue the order 
 in which they have been discussed at the bar. 
 
 I. " Whether the devise in the will of Eobert Eichard Eandall, of 
 the lands in question, is a valid devise, so as to divest the heir at law of 
 his legal estate, or to affect the lands in his hands with a trust." 
 
 This question arises upon the residuary clause in the will, in which 
 the testator declares : that as to and concerning all the rest, residue and 
 remainder of my estate, both real and personal, I give, devise and be- 
 queath the same unto the chancellor of the State of New York, the 
 mayor and recorder of the city of New York, etc. (naming several other 
 persons by their official description only), to have and to hold all and 
 singular the said rest, residue and remainder of my said real and per- 
 sonal estate, unto them, and their respective successors in office, forever, 
 to, for and upon, the uses, trusts, intents and purposes, and subject to 
 the directions and appointments hereinafter mentioned and declared con- 
 cerning the same, that is to say : out of the rents, issues and profits of 
 the said rest, residue and remainder of my said real and personal estate, 
 to erect and build upon some eligible part of the land upon which I 
 now reside, an asylum, or marine hospital, to be called " the Sailor's 
 Snug Harbor," for the purpose of supporting aged, decrepid, and worn- 
 out sailors, ete. And after giving directions as to the management of 
 the fund by his trustees, and declaring that it is his intention, that the 
 institution erected by his will should be perpetual, and that the above- 
 mentioned officers for the time being, and their successors, should for- 
 
Inglis v. The Sailor's Snug Harbor. 425 
 
 ever continue to be the governors thereof, and have the superintendence 
 of the same, he then adds, " and it is my will and desire, that if it can- 
 not legally be done, according to my above intention, by them, without 
 an act of the Legislature, it is my will and desire, that they will as soon 
 as possible apply for an act of the Legislature to incorporate them for 
 the purposes above specified. And I do hereby declare it to be my will 
 and intention, that the said rest, residue and remainder of my said real 
 and personal estate, should be at all events applied for the uses and pur- 
 poses above set forth ; and that it is my desire all courts of law and 
 equity will so construe this my said will as to have the said estate ap- 
 propriated to the above uses, and that the same should in no case, for 
 want of legal form or otherwise, be so construed as that my relations, or 
 any other persons, should heir, possess or enjoy my property, except in 
 the manner, and for the uses herein above specified." 
 
 The Legislature of the State of New York, within a few years after 
 the death of the testator, on the application of the trustees, who are also 
 named as executors in the will, passed a law, constituting the persons 
 holding the offices designated in the will, and their successors in office, 
 a botiy corporate, by the name and style of " the Trustees of the Sailor's 
 Snug Harbor in the city of New York," and declaring that they and 
 their successors, by the name and style aforesaid, shall be capable in law 
 of holding and disposing of the said real and personal estate, devised 
 and bequeathed as aforesaid, according to the intentions of the aforesaid 
 will. And that the same is hereby declared to be vested in them and 
 their successors in office for the purposes therein expressed. 
 
 If, after such a plain and unequivocal declaration of the testator with 
 respect to the disposition of his property, so cautiously guarding against, 
 and providing for every supposed difficulty that might arise, any tech- 
 nical objection shall now be interposed to defeat his purpose, it will form 
 an exception to what we find so universally laid down in all our books, 
 as a cardinal rule in the construction of wills, that the intention of the 
 testator is to be sought after and carried into effect. But no such dif- 
 ficulty in my judgment is here presented. If the intention of the tes- 
 tator cannot be carried into eifect, precisely in the mode at first contem- 
 plated by him, consistently with the rules of law, he has provided an 
 alternative, which, with the aid of the act of the Legislature, must re- 
 move all difficulty. 
 
 The case of the Baptist Association v. Hart's Executors, 4 Wheat. 27, 
 36* 
 
426 Inglis v. The Sailor's Snug Haebok. 
 
 is supposed to have a strong beai'ing upon the present. This is however 
 distinguishable in many important particulars from that. The bequest 
 there was, " to the Baptist Association that for ordinary meets at Phila- 
 delphia." This association not being incorporated, was considered in- 
 capable of taking the trust as a society. It was a devjse in presenti, to 
 take effect immediately on the death of the testator, and the individuals 
 composing it were numerous and uncertain, and there was no executory 
 bequest over to the association if it should become incorporated. The 
 Court therefore considered the bequest gone for uncertainty as to the de- 
 visees, and the property vested in the next of kin, or was disposed of 
 by some other provision in the will. If the testator in that case had 
 bequeathed the property to the Baptist Association on its becoming there- 
 after, and within a reasonable time incorporated, could there be a doubt 
 but that the subsequent incorporation would have conferred on the as- 
 sociation the capacity of taking and managing the fund. 
 
 In the case now before the Court, there is no uncertainty with respect 
 to the individuals who were to execute the trust. The designation of 
 the trustees by their official character, is equivalent to naming them by 
 their proper names. Each office referred to was filled by a single in- 
 dividual, and the naming of them by their official distinction was a mere 
 designatio personse. They are appointed executors by the same descrip- 
 tion, and no objection could lie to their qualifying and acting as such. 
 The ti'ust was not to be executed by them in their official characters, but 
 in their private and individual capacities. But admitting that if the 
 devise in the present case had been to the officers named in the will and 
 theii' successors, to execute the trust, and no other contingent provision 
 made, it would fall within the case of the Baptist Association v. Hart's 
 Executors. 
 
 The subsequent provisions in the will must remove all difficulty on 
 this ground. If the first mode pointed out by the testator for carrying 
 into execution his will and intention, with respect to this fund, cannot 
 legally take effect, it must be rejected, and the will stand as if it had 
 never been inserted ; and the devise would then be to a corporation, to 
 be created by the Legislature, composed of the several officers designated 
 in the will as trustees, to take the estate and execute the trust. 
 
 And what objection can there be to this as a valid executory devise, 
 which is such a disposition of lands, that thereby no estate vests at the 
 death of the devisor, but only on some futm-e contingency? By an exec- 
 
Inglis v. The Sailoe's Snug Harbor. 427 
 
 utnry devise, a freehold may be made to commence in futui'o, and needs 
 no particular estates to support it. The future estate is to arise upon 
 some specified contingency, and the fee-simple is left to descend to the 
 heir at law until such contingency happens. A common case put in the 
 books to illustrate the rule is : if one devises land to a feme sole and her 
 heirs upon her marriage. This would be a freehold commencing in 
 futuro, without any particular estate to support it, and would be void 
 in a deed, though good by executory devise, 2 Black. Com. 175. This 
 contingency must happen within a reasonable time, and the utmost length 
 of time the law allows for this is, that of a life or lives in being and 
 twenty-one years afterwards. The devise in this case does not purport 
 to be a present devise to a corporation not in being, but a devise to take 
 effect in futuro upon the corporation being created. The contingency 
 was not too remote. The incorporation was to be procured, according 
 to the directions in the will, as soon as possible, on its being ascertained 
 that the trust could not legally be carried into effect in the mode first 
 designated by the testator. It is a devise to take effect upon condition 
 that the Legislature should pass a law incorporating the trustees named 
 in the will. Every executory devise is upon some condition or con- 
 tingency, and takes effect only upon the happening of such contingency 
 or the performance of such condition. As in the case put of a devise 
 to a feme sole upon her marriage. The devise depends on the condition 
 of her afterwards marrying. 
 
 The doctrine sanctioned by the Court in Porter's case, 1 Coke's Eep. 
 24, admits the validity of a devise to a future incorporation. In answer 
 to the argument that the devise of a charitable use was void under the 
 statute 23 Hen. 8, it was said, that admitting this, yet the condition was 
 not void in that case. For the testator devised that his wife shall have 
 his lands and tenements, upon condition that she, by the advice of learned 
 counsel, in convenient time after his death, shall assure all his lands and 
 tenements for the maintenance and continuance of the said free school, 
 and alms men and alms women forever. So that although the said 
 uses were prohibited by the statute, yet the testator hath devised, that 
 counsel learned should advise, how the said lands and tenements should 
 be assured, for the uses aforesaid, and that may be ad\dsed lawfully : 
 viz. To make a corporation of them by the king's letters patent, and 
 aftei-wards, by license, to assure the lands and tenements to them. So 
 if a man devise that his executors shall, by the advice of learned counsel. 
 
428 Inglis v. The Sailor's Sntjg Harbor. 
 
 convey his lands to any corporation, spiritual or temporal, this is not 
 against any act of parliament, because it may lawfully be done by license, 
 etc., and so doubtless was the intent of the testator, for he would have 
 the lands assured for the maintenance of the free school, and poor, for- 
 ever, which cannot be done without incorporation and license, as afore- 
 said • so the condition is not against law : guod fuit eoncessum per 
 curiam. 
 
 The devise in that case could not take effeci without the incorporation. 
 This was the condition upon which its validity depended. And the 
 incorporation was to be proeui-ed after the death of the testator. The 
 devise then, as also in the case now before the Court, does not pm-port 
 to be a present devise, but to take effect upon some future event. And 
 this distinguishes the present case from that of the Baptist Association 
 V. Hai'i's Executors, in another important circumstance. There it was a 
 present devise, here it is a futui-e devise. A devise to the first son of 
 A., he having no son at that time, is void ; because it is by way of a 
 present devise, and the devisee is not in esse. But a devise to the fii-st 
 son of A. when he shall have one, is good 5 for that is only a futm'e 
 devise, and valid as an executoiy devise. 1 Salk. 226, 229. 
 
 The cases in the books are very strong to show, that for the purpose 
 of canying into effect the intention of the testator, any mode pointed 
 out by him will be sanctioned, if consistent with the rules of law, although 
 some may fail. In Thellusson v. Woodford, 4 Ves. Jun. 325, Buller, 
 Justice, sitting with the lord chanceUor, refers to, and adopts with ap- 
 probation, the rule laid down by lord Talbot in Hopkins v. Hopkins : 
 that in such eases, (on wills,) the method of the courts is not to set aside 
 the intent because it cannot take effect so fully as the testator desired, 
 but to let it work as far as it can. Most executory devises, he says, are 
 without any freehold to support them ; the number of contingencies is 
 not material, if <hey are to happen within the limits allowed by law. 
 That it was never held that executory devises are to be governed by the 
 rules of law, as to common law conveyances. The only question is, 
 whether the contingencies are to happen within a reasonable time or not. 
 The master of the rolls in that case says, (p. 329,) he knows of only one 
 general rule of construction, equally for courts of equity and courts of 
 law, applicable to wills. The intention of the testator is to be sought 
 for, and the will carried into effect, provided it can be done consistent 
 mtli the rules of law. And he adds another rule, which has become 
 
Inglis v. The Sailor's Snug Haeboe. 429 
 
 an established rule of construction. That if the Court can see a general 
 intention, consistent with the rules of law, but the testator has attempted 
 to carry it into effect in a way that is not permitted, the Com-t is to give 
 effect to the general intention, though the particular mode shall fail. 
 1 Peere Wms. 332 ; 2 Brown's Ch. 51. 
 
 The language of Lord Mansfield in the case of Chapman v. Brmmi, 
 3 BuiT. 1634, is very strong to show how far coui'ts will go to carry into 
 effect the intention of the testator. To attain the intent, he says, words 
 of limitation shall operate as words of purchase ; implication shall sup- 
 ply verbal omissions. The letter shall give way, eveiy inaccuracy of 
 gi-ammar, every impropriety of terms, shall be corrected by the general 
 meaning, if that be clear and manifest. 
 
 In Bartlet v. King, 12 Mass. Rep. 543, the supreme judicial court of 
 Massachusetts adopt the rule laid do'wn in Thellusson v. Woodford, that 
 the Court is bound to cany the will into effect if they can see a general 
 intention consistent with the rules of law, even if the particular mode 
 or manner pointed out by the testator is illegal. And the Court refer 
 with approbation to what is laid down by PoM'ell in his Treatise on 
 Devises 421, that a devise is never construed absolutely void for uncer- 
 tainty, but from necessity : if it be possible to reduce it to certainty it 
 is good. So also in Finlay v. Riddle, 3 Binn. Rep. 162, in the Supreme 
 Court of Pennsylvania, the rule is recognized, that the general intent 
 must be carried into effect, even if it is at the expense of the pai'ticular 
 intent. 
 
 A rule so reasonable and just m itself, and in such perfect hai'mony 
 with the whole doctrine of the law in relation to the construction of 
 wills, cannot but receive the approbation and sanction of all courts of 
 justice ; and a stronger case calling for the application of that rule can 
 scarcely b^ imagined than the one now before the Court. The general 
 intent of the testator, that this fund should be apjDlied to the maintenance 
 and support of aged, decrepid, and worn-out sailors, cannot be mistaken. 
 And he seems to have anticipated that some difficulty might arise, about 
 its being legally done in the particular mode pointed out by him. . And 
 to guard against a failure of his pui*pose on that account, he dii-ects ap- 
 plication to be made to the Legislature for an iucoi-poratiou, to take and 
 execute the trust according to his will ; declaring his will and intention 
 to be, that his estate should at all events be applied to the uses and pur- 
 poses aforesaid ; and desiring all courts of law and equity so to construe 
 
430 Inglis v. The Sailor's Snug Harbor. 
 
 his will, as to have his estate applied to such uses. And to make it still 
 more secure, if possible, he finally directs that his will should in no case, 
 for want of legal form or otherwise, be so construed, as that his relations, 
 or any other persons, should heir, possess or enjoy his property, except 
 in the manner and for the uses specified in his will. 
 The will looks therefore to three alternatives : 
 
 1. That the ofiicers named in the will as trustees, should take the 
 estate and execute the trust. 
 
 2. If that could not legally be done, then he directs his trustees to 
 procure an act of incorporation, and vests the estate in it for the purpose 
 of executing the trust. 
 
 3. If both these should fail, his heire, or whosoever should possess 
 and enjoy the property, are charged with the trust. 
 
 That this trust is fastened upon the land cannot admit of a doubt. 
 Wherever a person by will gives property, and points out the object, the 
 propei-t}', and the way in which it shall go, a trust is created ; unless he 
 shows clearly, that his desu-e expressed is to be controlled by the trustee, 
 and that he shall have an option to defeat it. 2 Ves. Jun. 335. 
 
 It has been urged by the demandant's counsel, that these lands cannot 
 be charged with the trust in the hands of the heir, because the will directs 
 that they shall not be possessed or enjoyed, except in the manner and 
 for the uses specified. That the mannei' and the use must concur in 
 order to charge the trust on the land. But I apprehend this is a mis- 
 taken application of the term manner as here used. It does not refer 
 to the persons who were to execute the trust. But to the mode or man- 
 ner in which it was to be carried into effect, viz., by erecting upon some 
 eligible part of the land an asylum, or marine hospital, to be called " the 
 Sailor's Snug Harbor." And the ^Mes were, " for the purpose of main- 
 taining and supporting aged, decrepid, and worn-out sailors." « Whoever 
 therefore takes the land, takes it charged with these uses or trusts, which 
 are to be executed in the manner above-mentioned. And if so, there 
 can be no objection to the act of incorporation, and the vesting the title 
 therein declared. It does not interfere with any vested rights ia the 
 heir. He has no beneficial interest in the land. And the law only 
 transfers the execution of the trust from him to the corporation, and 
 thereby carrying into effect the clear and manifest intention of the tes- 
 tator. But being of opinion that the legal estate passed under the will, 
 I have not deemed it necessary to pursue the question of trust, and have 
 
Inglis v. The Sailor's Snug Harbor, 431 
 
 simply referred to it, as being embraced in the point submitted to this 
 Court. 
 
 If this is to be considered a devise to a corporation, it will not come 
 within the prohibitions 'in the statute of wills, 1 Eevised Laws 364. 
 For this act of incorporation is, pro tanto, a repeal of that statute. 
 
 Taking this devise therefore in either of the points of view in which 
 it has been considered, the answer to the question put must be, that it is 
 valid, so as to divest the heir of his legal estate, or at all events, to affect 
 the lands in his hands with the trust declared in the will. 
 
 If this view of the devise in the will of Eobert Eichard Eandall be 
 correct, it puts an end to the right and claim of the demandant, and 
 might render it unnecessary to examine the other points which have 
 been certified to this Court, had the questions come up on a special ver- 
 dict or bill of exceptions. But coming up on a certificate of a division 
 of opinion, it has been the usual course of this Court to express an opin- 
 ion upon all the points. 
 
 It is not however deemed necessaiy to go into a very extended exami- 
 nation of the other questions, as the opinion of the Court upon the one 
 already considered, is conclusive against the right of recoveiy in this 
 action. 
 
 II. The second general question is, whether John Inglis, the demand- 
 ant, was or was not capable of taking lands in the State of New York 
 by descent. 
 
 This question is presented under several aspects, for the purpose of 
 meeting what at present from the evidence appears a little uncertain, as 
 to the time of the birth of John Inglis. This question as here presented, 
 does not call upon the Court for an opinion upon the broad doctrine of 
 allegiance and the right of expatriation, under a settled and unchanged 
 state of society and government. But to decide what are the rights of 
 the individuals composing that society, and living under the protection 
 of that government, when a revolution occurs; a dismemberment takes 
 place ; new governments are formed ; and new relations between the 
 government and the people are established. 
 
 If John Inglis, according to the first supposition under this point, 
 was born before the 4th of July, 1776, he is an alien; unless his re- 
 maining in New York during the war changed his character and made 
 him an American citizen. It is universally admitted, both in the Eng- 
 lish courts and in those of our own country, that all persons born within 
 
432 Inglis v. The Sailoe's Snug Haebok. 
 
 the colonies of North America, whilst subject to the crown of Great 
 Britain, were natural born British subjects, and it must necessarily fol- 
 low, that that character was changed by the separation of the colonies 
 from the parent state, and the acknowledgment of their independence. 
 
 The rule as to the point of time at which the American ante nati 
 ceased to be British subjects, differs in this country and in England, as 
 estabKshed by the courts of justice in the respective countries. The 
 English rule is to take the date of the treaty of peace in 1783. Our 
 rule is to take the date of the Declaration of Independence. And in 
 the application of the rule to different cases, some difference in opinion 
 may arise. The settled doctrine of this country is, that a person born 
 here, who left the country before the Declaration of Independence, and 
 never returned here, became thereby an alien, and incapable of taking 
 lands subsequently by descent in this country. The right to inherit 
 depends upon the existing state of allegiance at the time of descent cast. 
 The descent cast in this case being long after the treaty of peace, the 
 difficulty which .has arisen in some cases, where the title was acquired 
 between the Declaration of Independence and the treaty of peace, does 
 not arise here. Prima facie, and as a general rule, the character in 
 which the American ante nati are to be considered, will depend upon, 
 and be determined by the situation of the party and the election made 
 at the date of the Declaration of Independence, according to our rule ; 
 or the treaty of peace according to the British rule. But this general 
 rule must necessarily be controlled by special cu'cumstances attending 
 particular cases. And if the right of election is at all admitted, it 
 must be determined, in most cases, by what took place during the 
 struggle, and between the Declaration of Independence and the treaty 
 of peace. To say that the election must have been made before, or 
 immediately at the Declaration of Independence, would render the 
 right nugatory. 
 
 The doctrine of perpetual allegiance is not applied by the British 
 courts to the American ante nati. This is fully shown by the late case 
 of Doe V. AcUam, 2 Barn. & Cresw. 779. Chief-Justice Abbott says, 
 " James Ludlow, the father of Frances May, the lessor of the plaintiff, 
 was undoubtedly born a subject of Great Britain. He was born in a 
 part of America, which was at the time of his birth a British colony, 
 and parcel of the dominions of the crown of Great Britain ; but upon 
 the fact found, we are of opinion that he was not a subject of the crown 
 
Inglis v. The Sailor's Snug Haeboe. 433 
 
 of Great Britain at the time of the birth of his daughter. She was 
 born after the independence of the colonies was recognized by the crown 
 of Great Britain, after the colonies had become United States, and their 
 inhabitants generally citizens of those States. And her father by his 
 continued residence in those States manifestly became a citizen of them." 
 He considered the treaty of peace as a release, from their allegiance, of 
 all British subjects who remained there. A declaration, says he, that a 
 State shall be free, sovereign and independent, is a declaration, that the 
 people composing the State shall no longer be considered as subjects of 
 the sovereign by whom such a declaration is made. And this Court, in 
 the case of BligMs Lessee v. Rochester, 7 Wheat. 544, adopted the same 
 rule with respect to the right of British subjects here. That although 
 born before the revolution, they are equally incapable with those born 
 subsequent to that event of inheriting or transmitting the inheritance 
 of lands in this country. The British doctrine therefore is, that the 
 American ante nati, by remaining in America after the treaty of peace, 
 lost their character of British subjects. And our doctrine is, that by 
 withdrawing from this country, and adhering to the British government 
 they lost, or, perhaps more properly speaking, never acquired the character 
 of American citizens. 
 
 This right of election must necessarily exist, in all revolutions like 
 ours, and is so well established by adjudged ca.ses, that it is entirely un- 
 necessary to enter into an examination of the authorities. The only 
 difficulty that can arise is, to determine the time when the election should 
 have been made. Vattel, B. 1, ch. 3, sec. 33. 1 Dall. 68. 2 Dall. 
 234. 20 Johns. 332. 2 Mass. 179, 236, 244, note. 2 Pickering 394. 
 2 Kent's Com. 49. 
 
 I am not aware of any case in the American courts where this right 
 of election has been denied, except that of Ainsley v. Martin, 9 Mass. 
 454. Chief-Justice Parsons does there seem to recognize, and apply 
 the doctrine of perpetual allegiance, in its fullest extent. He then de- 
 clares that a person bom in Massachusetts, and who, before the 4th of 
 July, 1776, withdrew into the British dominions, and never since returned 
 into the United States, was not an alien, that his allegiance to the king 
 of Great Britain was founded on his birth, within his dominions, and 
 that that allegiance accrued to the commonwealth of Massachusetts, as 
 his lawful successor. But he adds what may take the present case even 
 out of his rule : " It not being alleged," says he, " that the demandant 
 37 2C 
 
434 Inglis v. The Sailor's Snug Harbor. 
 
 has been expatriated, by virtue of any statute or amy judgment of law." 
 But the doctrine laid down in this case is certainly not that which pre- 
 vailed in the Supreme Judicial Court of Massachusetts, both before and 
 since that decision, as will appear by the cases above referred to of 
 Gardner v. Ward, and Kilham v. Ward, 2 Mass., and of George Phipps, 
 2 Pickering 394, note. 
 
 John Inglis, if born before the Declaration of Independence, must 
 have been very young at that time, and incapable of making an election 
 for himself; but he must, after such a lapse of time, be taken to have 
 adopted and ratified the choice made for him by his father, and still to 
 retain the character of a British subject, and never to have become an 
 American citizen, if his father was so to be considered. He was taken 
 from this countrj^ by his father before the treaty of peace, and has con- 
 tinued ever since to reside within the British dominions without signify- 
 ing any dissent to the election made for him ; and this ratification, as to 
 all his rights, must relate back, and have the same effect and operation, 
 as if the election had been made by himself at that time. 
 
 How then is his father Charles Inglis to be considered ? Was he an 
 American citizen ? He was here at the time of the Declaration of Inde- 
 pendence, and prima facie may be deemed to have become thereby an 
 American citizen. But this pHmafade presumption may be rebutted ; 
 otherwise there is no force or meaning in the right of election. It surely 
 cannot be said, that nothing short of actually removing from the coun- 
 try before the Declaration of Independence will be received as evidence 
 of the election ; and every act that could be done to signify the choice 
 that had been made, except actually withdrawing from the country, was 
 done by Charles Inglis. He resided in the city of New York at the 
 Declaration of Independence, and remained there imtil he removed to 
 England, a short time before the evacuation of the city by the British 
 in November, 1783; New York during the whole of that time, except 
 from July to September, 1776, being in possession, and under the gov- 
 ernment and control of the British, he taking a part and acting with 
 the British ; and was, according to the strong language of the witness, 
 as much a royalist as he himself was, and that no man could be more 
 so. Was Charles Inglis under these circumstances to be considered an 
 American citizen ? If being here at the Declaration of Independence 
 necessarily made him such, under all possible circumstances he was an 
 American citizen. But I apprehend this would be carrying the rule to 
 
Inglis v. The Sailor's Snug Harbor. 435 
 
 an extent that never can be sanctioned in a court of justice, and would 
 certainly be going beyond any case as yet decided. 
 
 The facts disclosed in this case, then, lead irresistibly to the conclu- 
 sion that it was the fixed determination of Charles Inglis the father, at 
 the Declaration of Independence, to adhere to his native allegiance. 
 And John Inglis the son must be deemed to have followed the condition 
 of his father, and the character of a British subject attached to and 
 fastened on him also, which he has never attempted to throw oif by any 
 act disaffirming the choice made for him by his father. 
 
 The case of M'llvaine v. Coxe's Lessee, 4 Cranch 211, which has 
 been relied upon, will not reach this case. The Court in that case rec- 
 ognized fully the right of election, but considered that Mr. Coxe had 
 lost that right by remaining in the State of New Jersey, not only after 
 she had declared herself a sovereign State, but after she had passed laws 
 by which she pronounced him to be a member of, and in allegiance to 
 the new government; that by the act of the 4th of October, 1776, he 
 became a member of the new society, entitled to the protection of its 
 government. He continued to reside in New Jersey after the passage 
 of this law, and until some time in the year 1777, thereby making his 
 election to become a member of the new government ; and the doctrine 
 of allegiance became applicable to his case, which rests on the ground 
 of a mutual compact between the government and the citizen or subject, 
 which it is said cannot be dissolved by either party without the concur- 
 rence of the other. It is the tie which binds the governed to their gov- 
 ernment, in return for the protection which the government affords 
 them. New Jersey, in October, 1776, was in a condition to extend that 
 protection, which Coxe tacitly accepted by remaining there. But tlfat 
 was not the situation of the city of New York ; it was in the possession 
 of the British. The government of the State of New York did not ex- 
 tend to it in point of fact. 
 
 The resolutions of the convention of New York of the 16th of July, 
 1776, have been relied upon as asserting a claim to the allegiance of all 
 persons residing within the State. But it may well be doubted whether 
 these resolutions reached the case of Charles Inglis. The language is, 
 " that all persons abiding within the State of New York, and deriving 
 protection from the laws of the same, owe allegiance to the said laws, 
 and are members of the State." Charles Inglis was not, within the 
 reasonable interpretation of this resolution, abiding in the State and 
 
436 Inglis v. The Sailor's Snug Harbor. 
 
 owing protection to the laws of the same. He was within the British 
 lines, and under the protection of the British army, manifesting a full 
 determination to continue a British subject. But if it should be ad- 
 mitted that the State of New York had a right to claim the allegiance 
 of Charles Inglis, and did assert that right by the resolution referred to, 
 still the case of Mlhaine v. Coxe does not apply. 
 
 It cannot, I presume, be denied, but that allegiance may be dissolved 
 by the mutual consent of the government and its citizens or subjects. 
 The government may release the governed from their allegiance. This 
 is even the' British doctrine in the case of Doe v. J.cA?am, before referred 
 to. The act of attainder passed by the Legislature of iihe State of New 
 York, by which Charles Inglis is declared to be forever banished from 
 the State, and adjudged guilty of treason if ever afterwards he should 
 be found there, must be considered a release of his allegiance, if ever he 
 owed any to the State. 1 Greenleaf's Ed. L. N. Y. 26. 
 
 From the view of the general question referred to in this Court, the 
 answers to the specific inquiries will, in my judgment, be as follows : 
 
 1. If the demandant was born before the 4th of July, 1776, he was 
 born a British subject ; and no subsequent act on his part, or on the 
 part of the State of New York, has occurred to change that character ; 
 he of course continued an alien, and disabled from taking the land in 
 question by inheritance. 
 
 2. If born after the 4th of July, 1776, and before the 15th of Sep- 
 tember of the same year, when the British took possession of New York, 
 his infancy incapacitated him from making any election for himself, and 
 his election and character followed that of his father, subject to the right 
 o:& disaffirmance in a reasonable time after the termination of his mi- 
 nority ; which never having been done, he remains a British subject, 
 and disabled from inheriting the land in question. 
 
 3. If born after the British took possession of New York, and before 
 the evacuation on the 25th of November, 1783, he was, under the cir- 
 cumstances stated in the case, born a British subject, under the protec- 
 tion of the British government,* and not under that of the State of New 
 York, and of course owing no allegiance to the State of New York. 
 And even if the resolutions of the convention of the 16th of July, 1776, 
 should be considered as asserting a rightful claim to the allegiance of 
 the demandant and his father, this claim was revoked by the act of 1779, 
 and would be deemed a release and discharge of such allegiance, on the 
 
Inglis v. The Sailor's Snug Haeboe. 437 
 
 part of the State, and which having been impliedly assented to, by the 
 demandant, by withdrawing with his father from the State of New York 
 to the British dominions, and remaining there ever since, worked a 
 voluntary dissolution, by the assent of the government and the demand- 
 ant, of whatever allegiance antecedently existed, and the demandant at 
 the time of the descent cast was an alien, and incapable of taking lands 
 in New York by inheritance. 
 
 4. When Charles Inglis, the father, and John Inglis, his son, with- 
 drew from New York to the British dominions, they had the right of 
 electing to become and remain British subjects. And if the grand as- 
 size shall find, that in point of fact they had made such election, then 
 the demandant at the time of the descent cast was an alien, and could 
 
 V 
 
 not inherit real estate in New York. 
 
 III. The next question is, whether the will of Catherine Brewerton 
 was sufficient to pass her right and interest in the premises in question, 
 so as to defeat the demandant in any respect ; the premises being at the 
 date of the will, and ever since, held adversely by the tenants in the 
 suit. 
 
 Mrs. Brewerton was the sister of Robert Richard Randall, and if the 
 devise in his will is void and cannot take effect, she, as one of his heirs 
 at law, wonld be entitled to a moiety of the lands in question. She 
 died in the year 1815, having shortly before made her last will and 
 testament, duly executed and attested to pass real estate. By this will 
 she devised and bequeathed all her real and personal estate, whatsoever 
 and wheresoever, in law and equity, in possession, reversion, remainder, 
 or expectancy (except some specific legacies) unto her executors, upon 
 certain trusts therein mentioned. If this will was therefore operative, 
 so as to pass her right to her brother's estate, it will defeat the demand- 
 ant's right to recover, as to one moiety of the premises in question. 
 
 The objection taken to the operation of this will is, that the premises 
 were at the date thereof, and ever since have been held adversely by the 
 tenants in the suit. 
 
 The validity of this objection must depend upon the construction of 
 the statute of wills in the State of New York. By that statute (1 N. 
 Y. Rev. Laws 364, sec. 1) it is declared, that any person having any 
 estate of inheritance, either in severalty, in coparcenary, or in common, 
 in any lands, tenements, or hereditaments, may at his own free will and 
 pleasure, give or devise the same, or any of them, or any rent or profit 
 37* 
 
438 Inglis v. The Sailor's Snug Harbor. 
 
 out of the same or out of any part thereof, to any person or persons 
 (except bodies public and corporate), by his last will and testament, or 
 any other act by him lawfully executed. 
 
 This being a question depending upon the construction of a State 
 statute, with respect to the title to real property, it has been the uniform 
 course of this Court, to apply the same rule that we find applied by the 
 State tribunals in like cases. 1 Peters 371. This statute upon the point 
 now under consideration has received a construction by the Supreme 
 Court of the State of New York, in the case of Jackson v. Varich, 7 
 Cowen 238. The question arose upon the validity of a devise in the 
 will of Medcef Eden, the younger. The objection was, that at the time 
 of the devise, and of the death of the testator, the premises in question 
 were, and had been for several years before in the adverse possession of 
 the defendant, and that he and those under whom he claimed entered 
 originally, without the consent of the devisor or any one from whom he 
 claimed. The Court say, the facts present the question whether the 
 owner in fee can devise land, which, at the time of the devise and his 
 death, is in the adverse possession of another. That is, whether a person 
 having a right of entry in fee-simple, shall be said to have an estate of 
 inheritance in lands, tenements, or hereditaments in the language of our 
 statute of wills. 
 
 It is unnecessary to pursue the course of reasoning which conducted 
 the Court to the conclusion to which it came. The result of the opinion 
 was, that under the comprehensive words used in the act, a right of 
 entry, as well as an estate in the actual seizin and possession of the de- 
 visor, was devisable ; and that an estate that would descend to the heir 
 is transmissible equally by wUl. The judge who delivei^ed the opinion 
 adverted to some cases that had arisen in the same Court, wherein a con- 
 trary doctrine would seem to have been recognized, but came to the con- 
 clusion, that no decision had been made upon the point. 
 
 In the case of Wilkes v. lAon, 2 Cowen 355, decided in the Court of 
 Errors, in New York, one of the points relied upon by the counsel for 
 the plaiatiff in error, was, that this same will of Medcef Eden, the 
 younger, was inoperative as to the premises then in question ; they being 
 lands of which he was not seized at the time of his death. I do not 
 find that any direct opinion was given upon this point ; but the objec- 
 tion must have been overruled, or the Court could not have come to the 
 conclusion it did. 
 
Inglis v. The Sailoe's SiiruG Haeboe. 439 
 
 It is said, however, by the demandant's counsel, that these cases do 
 not apply to the one now before the Court ; but only such estate as 
 would descend to the heir of the devisor, and that the premises in ques- 
 tion here would not descend to the heirs of Mrs. Brewerton for want of 
 actual seizin. According to the rule laid down in Watkins on Descents 
 23, that where the ancestor takes by purchase, he may be capable of 
 transmitting the property so taken to his own heirs, without any actual 
 possession in himself; but if the ancestor himself takes by descent, it is 
 absolutely necessary, in order to make him the stock or terminus, from 
 whom the descent should now run, and so enable him to transmit such 
 hereditaments to his own heirs, that he acquire an actual seizin of such 
 as are corporeal, or what is equivalent thereto, in such as are incor- 
 poreal. 
 
 It is very evident, however, that the Court could not have intended 
 to apply this rule to the construction of the statute of wills. For they 
 say, in terms, that the question is, whether a person having a right of 
 entry in lands has an estate of inheritance devisable, according to the 
 provisions of the statute. But under the common law rule referred to, 
 a person having only a right of entry, would not be accounted an an- 
 cestor from whom the inheritance would be derived. 2 Black. Com. 
 209. Such a construction would be in a great measure defeating the 
 whole operation of the act. 
 
 The demandant in this case states in his count, that upon the death 
 of Robert K. Randall, the right to the land descended to Paul R. Ran- 
 dall and Catherine Brewerton in moieties. So that, by his own showing, 
 she had a right of entry, which, according to the express terms of the 
 decisions in Jackson and Varick, was devisable. 
 
 The answer to this question must accordingly be, that the will of 
 Catherine Brewerton was sufficient to pass her right and interest in the 
 premises in question, notwithstanding the adverse possession held by the 
 tenants in this suit, at the date of the will. 
 
 IV. The fourth point stated is, whether the proceedings against Paul 
 Richard Randall, as an absent debtor, passed his right or interest in the 
 lands in question to, and vested the same in, the trustees appointed under 
 the said proceedings, or either of them, so as to defeat the demandant 
 in any respect. 
 
 Paul R. Randall, as stated in the case, died some time in the year 
 1820. He and his sister Mrs. Brewerton were the heirs at law to the 
 
440 Inglis v. The Sailor's Snug Harbor, 
 
 estate of their brother Robert Richard Eandall. If therefore the will 
 of Mrs. Brewerton operated to pass her right, Paul R. Randall would 
 be entitled to the other moiety. If her will did not operate, then he 
 would be entitled to the whole of his brother's estate. 
 
 It does not appear from the case that any objections were made to the 
 regularity of the proceedings against Paul R. Randall, under the ab- 
 sconding debtor act ; and indeed the question, as stated for the opinion 
 of this Court, necessarily implies that no such objection existed. The 
 question is, whether his right in the land passed to, and became vested 
 in, the trustees. 
 
 As this is the construction of a State law, this Court will be governed 
 very much by the decisions of the State tribunals in relation to it. The 
 question is, whether a right of entry passes under the provisions of the 
 absconding debtor act of tlie State of New York, 1 Rev. Laws 157. 
 By the first section of the act, the warrant issued to the sheriff com- 
 mands him to attach, and safely keep, all the estate, real and personal, 
 of the debtor. The tenth section authorizes the trustees to take into 
 their hands all the estate of the debtor, whether attached as aforesaid, or 
 afterwards discovered by thera ; and that the said trustees, from their 
 appointment, shall be deemed vested with all the estate of such debtor, 
 and shall be cajjable to sue for and recover the same. And the trustees 
 are required to sell all the estate, real and personal, of the debtor, as 
 shall come to their hands, and execute deeds and bills of sale, which 
 shall be as valid as if made by the debtor himself. 
 
 These are the only parts of the act which have a material bearing 
 upon this point. And the first question that would seem to arise is, 
 whether the term estate, as here used, will extend to the interest which 
 the debtor has in lands held adversely. An estate in lands, tenements, 
 and hereditaments, signifies such interest as a person has therein, and is 
 the condition or circumstance in which the owner stands ■svith regard to 
 his property. Coke, sec. 345 a. 2 Black. Com. 103. 
 
 The language of the act is broad enough to include a right of entry ; 
 and there can be no reason to believe that such was not the intention of 
 the Legislature. 
 
 The doctrine of the Court of Common Pleas in England, in the case 
 of Smith V. Coffin, 2 H. Black. 461, has a strong bearing upon this ques- 
 tion. The language of this absconding debtor act, with respect to the 
 estate of the debtor to which it shall extend, is as broad as that of the 
 
Inglis v. The Sailor's Snug Haeboe. 441 
 
 English bankrupt laws, and the same policy is involved in the construc- 
 tion. In the case referred to, the Court say, the plain spirit of the bank- 
 rupt law is, that every beneficial interest which the bankrupt has, shall 
 be disposed of for the benefit of his creditors. On general principles, 
 rights of action are not assignable, but that is a rule founded on the 
 policy of the common law, which is averse to encouraging litigation. 
 But the policy of the bankrupt law requires that the right of actiou 
 should be assignable, and transferred to assignees, as much as any other 
 species of property. Its policy is, that every right, belonging in any 
 shape to the bankrupt, should pass to the assignees. 
 
 The estate of the debtor, under the New York statute, becomes vested 
 in the trustees, by the mere act and operation of law, without any as- 
 signment. 
 
 The Courts in New York have given a literal construction to this act, 
 whenever it has come under consideration, so as to reach all the property 
 of the absconding debtor. In the matter of Smith, an absconding 
 debtor, 16 Johns. 107, the broad rule is laid down that an attachment 
 under this act is analogous to an execution. And in the case of Handy 
 V. Dobbin, 12 Johns. 220, when the proceeding was under another statute, 
 1 Rev. Laws 398, very analogous to the one under consideration, the 
 Court say, there can be no doubt that the constable, under the attach- 
 ment, could take any goods and chattels which could be levied on by 
 execution. The authority in both cases is the same. And in Jackson 
 v. Varick, 7 Cowen 244, it is laid down as a rule axJmitting of no 
 doubt, that a right of entry may be taken and sold under an execu- 
 tion. 
 
 It is said, however, that this right of entry does not pass, because, by 
 tlie tenth section of the act, it is declared, that the deeds given by the 
 trustees shall be as valid as if made by the debtor, and that the debtor 
 could not make a valid deed of lauds held at the time adversely. 
 
 This objection does not apply to the case : the question does not arise 
 upon the operation of a deed given by the trustees. The point is, 
 whether the trustees themselves had any interest in these lands : not 
 whether they would give a valid deed for them, before reducing the 
 right to possession. If it should be admitted that they could not, it 
 would not affect the present question. The right is vested in the trus- 
 tees by operation of law, the act declaring that the estate shall be deemed 
 vested in them on their appointment, and that they shall be capable to sue 
 
442 Inglis v. The Sailoe's Sntjg Haeboe. 
 
 for and recover the same ; implying thereby that a suit may be necessary 
 to reduce the estate of possession. 
 
 Again, it is said, that after such a lapse of time, it is to be presumed 
 that all the debts of Paul K. Randall have been paid, and the trust of 
 course satisfied ; and that the estate thereupon became revested in Paul 
 E. Randall. 
 
 This objection admits of several answers. It does not appear properly 
 to arise under the point stated. But the question intended to be put 
 would seem to be, whether the right, being a mere right of entry, passed, 
 and became vested in the trustees. If it did so vest, it could not be 
 revested, except by a reconveyance, or by operation of law, resulting 
 from a performance of the trust, by paying off all the debts of the absent 
 debtor. And whether these debts have been satisfied, is a proper sub- 
 ject of inquiry for the grand assize. There is not enough before this 
 Court to enable it to decide that point. It is a question of fact, and 
 not of law. If it was admitted that all the debts have been satisfied, 
 the effect of such satisfaction would be a question of law. The evidence 
 might probably warrant the grand assize in presuming payment ; but 
 even that may not be perfectly clear. The order of tlie Court upon the 
 trustees to pay to the agent or attorney of Paul R. Randall five thou- 
 sand five hundred dollars, out of the money remaining in their hands, 
 does not purport to consider this sum as the surplus after payment of 
 all the debts. It was to be paid out of the moneys remaining in the 
 hands of the trustees, thereby fully implying, that their trust was not 
 closed. And if the fact of payment and satisfaction of the debts is left 
 at all doubtful, this Court cannot say, as matter of law, that the interest 
 in the land became revested in Paul R. Randall. It must depend upon 
 the finding of the grand assize. 
 
 It is objected, however, that the defence set up, and embraced in the 
 two last questions, is inadmissible. That in a writ of right, the tenant 
 cannot, under the mise joined, set up title out of himself, and in a third 
 person. That it is a question of mere right between the demandant 
 and the tenant. And it has been supposed, that this is the doctrine of 
 this Court in the case of Green v. Liter, 8 Cranch 229. If anything 
 that fell from the Court in that case will give countenance to such a 
 doctrine, it is done away by the explanation given by the Court in 
 Green v. Waikins, 7 Wheat. 31 ; and it is there laid down, thit the tenant 
 may give in evidence the title of a third person, for the purpose of dis- 
 
Inolis v. The Sailoe's Snug Haeboe. 443 
 
 proving the demandant's seizin. That a ^vrit of right does bring into 
 controversy the mere right of the parties to the suit, and if so, it, by- 
 consequence, authorizes either party to establish by evidence, that the 
 other has no right whatever in the demanded premises ; or that his mere 
 right is inferior to that set up against him. And this is the rule recog- 
 nized in the Supreme Court of New York. In the case of Ten Eyck 
 V. Wai&i'h&rry, 7 Cowen 52, the Court say, that in a writ of right, the 
 mise puts the seizin in issue, as the plea of not guilty in ejectment puts 
 in issue the title, and that under the mise anything may be given in 
 evidence, except collateral warranty. The same rule is laid down by 
 the Supreme Judicial Court of Massachusetts, in the case of Poor v. 
 Robinson, 10 Mass. Rep. 131 ; and such appears to be the well settled 
 rule in the English courts. Booth 98,115, 112. 3 Wilson 420. 2W. 
 Black. Eep. 292. 2 Saund. 45 f. note 4. Stearns on Real Actions 
 227, 228, 372. 
 
 The answer to this question will accordingly be ia the affirmative, 
 unless the grand assize shall find that the trusts have been fully per- 
 formed ; and if so, the interest in the land will by operation of law be- 
 come revested in Paul E.. Randall. 
 
 V. Another point submitted to this Court is, whether, inasmuch as 
 the count in the cause is for the entire right in the premises, the de- 
 mandant can recover a less quantity than the entirety. 
 
 This is rather matter of form, without involving materially the merits 
 of the case. And as the action itself has become almost obsolete, it 
 cannot be very important how the point is settled. I have not therefore 
 pursued the question to see how it would stand upon British authority. 
 The leaning of the Courts in that country is against the action, and 
 against even allowing almost any amendments, holding parties to the 
 most strict and rigid rules of pleading ; and it may be that the English 
 Courts would consider, that the recovery must be according to the count. 
 But whatever the rule may be there, I think it is in a great measure a 
 matter of practice, and that we are at liberty to adopt our rule on this 
 subject. And no prejudice can arise to the tenant by allowing the de- 
 mandant to have judgment for and recover according to the right which, 
 upon the trial, he shall establish in the demanded premises. The cases 
 referred to, showing that a demandant may abridge his plaint, do not 
 apply to a writ of right. This is confined to the action of assize, and 
 authorized by statute 21 Hen. 8, ch. 3. This statute has been adopted 
 
444 Inglis v. The Sailor's Sntjg Harbor. 
 
 in New York, 1 Rev. Laws 88, but does not help the case. But inde- 
 pendent of any statutory provision, I see no good reason why the de- 
 mandant should not be allowed to recover according to the interest 
 proved, if less than that which he has demanded. 
 
 It is the settled practice in the Supreme Judicial Court in Massa- 
 chusetts, in a writ of entry, to allow the demandant to recover an un- 
 divided part of the demanded premises. The technical objection, that 
 the verdict and judgment do not agree with the count, is deemed unim- 
 portant ; the title being the same as to duration and quality, and differ- 
 ing only in the degree of iuterest between a sole tenancy and a tenancy 
 in common. The tenant cannot be prejudiced by allowing this. He is 
 presumed to know his own title, and might have disclaimed. The 
 Courts in that State consider, that with respect to the right to renew a 
 part of the land claimed, there is no distinction between a writ of entry 
 and an action of ejectment. 2 Pick. 387. 3 Pick. 52. Nor is it per- 
 ceived that any well founded distinction, in this respect, can be made 
 between the action of ejectment and a writ of right. 
 
 The opinion of the Court upon this point is, that under a count for 
 the entire right, a demandant may recover a less quantity than the 
 entireiy. 
 
 Mr. Justice Johnson. 
 
 I concm- in tlie opinion in favor of this devise ; but this is one of 
 those cases in which I wish my opinion to appear in my own words. 
 
 This case comes up on a certified difference of opinion on five points. 
 I take them in their order on the record, not that in which they were 
 argued. The first, which is a technical question, and of minor import- 
 ance, I shall pass over. 
 
 The second, which depends upon the civil or political relation in 
 which the demandant Inglis stands to the State of New York, has been 
 exhibited under four aspects. The first contemplating him as born in 
 the city of New York before the 4th of July, 1776. The second, as 
 bom after that period, but before the British obtained possession of the 
 place of his birth. The third, as born in New York while a British 
 garrison. The fourth, as born an American citizen, before the treaty 
 of peace, but having elected to adhere to his allegiance to Great Britain. 
 In the argument there was a fifth aspect of the question presented, 
 which depended upon the act of confiscation and banishment by the 
 
Inglis v. The Sailor's Snug Harbor. 445 
 
 State against the father of the demandant. On the subject of descent, 
 in Shanks's case, which having been argued first in order, I had pre- 
 pared first to examine ; I have had occasion to remark, that the right 
 being claimed under the laws of the particular State in which the land 
 lies, the doctrines of allegiance, as applicable to the demandant, must 
 be looked for in the law of the State that has jurisdiction of the soil. 
 
 In this respect the laws of New York vary in nothing material from 
 those of South Carolina. By the twenty-fifth article of the constitution 
 of New York of 1777, the common law of England is adopted into the 
 jurisprudence of the State. By the principles of that law, the demand- 
 ant owed allegiance to the king of Great Britain, as of his province of 
 New York. By the revolution that allegiance was transferred to the 
 State, and the common law declares that the individual cannot put off 
 his allegiance by any act of his own. There was no legislative act passed 
 to modify the common law in that respect ; and as to the effect of the 
 act of confiscation and banishment, the constitution of the State has in 
 it two provisions which effectually protect the demandant against any 
 defence that can be set up under the effect of that act. The thirteenth 
 article declares that " no member of the State shall be disfranchised or 
 deprived of any of the rights or privileges secured to the subjects of 
 the State by that constitution, unless by the laws of the land or the 
 judgment of his peers." And the forty-first declares, " that no act of 
 attainder shall be passed by the Legislature of the State for crimes other 
 than those committed before the termination of the present war, and 
 that such acts (which I construe to mean acts of attainder generally) 
 shall not work a corruption of blood." 
 
 I shall therefore answer the second question in the affirmative ; that 
 is, that he was entitled to inherit as a citizen, born of the State of New 
 York. 
 
 On the third question, there were two points made. 1. That Mrs. 
 Brewerton having never entered, could not devise. 2. That the issue 
 being joined upon the mere right, it was not competent for the tenant 
 to introduce testimony to prove the interest out of the demandant, un- 
 less (I presume it was meant) the right be proved to be in the tenant. 
 On the first of these points I am satisfied that the State of New York 
 has not suffered the exercise of the testamentary power to be embarrassed 
 with the subtleties of the English law respecting entries and adverse 
 possessions. The words of their statute of wills are broad enough to 
 38 
 
446 Inglis v. The Sailor's Snug Harbor. 
 
 carry any right or interest in lauds, and such practically seems to have 
 been the uniform understanding in that State. 
 
 On the second point, under this question, the facts seem to furnish a 
 vay obvious answer. Whatever be the rule in other eases, and I do 
 not feel myself called upon to say what the rule is, it certainly can have 
 no application here, since it is through Mrs. Brewerton that the demand- 
 ant has to trace his title. Certainly then it must be a good defence, if 
 the tenant can establish that it could not pass through Mrs. Brewerton, 
 if she had prevented its descending by an act of her own, valid to that 
 purpose. Tliat question also I should answer in the affirmative. 
 
 On the fourth question, I feel it difficult to give a precise answer. 
 An attachment, and conveyance under it, are equivalent to an execution 
 executed. But then there is reason to believe, that the situation in 
 which we find this attachment is analogous to that of an execution, 
 satisfied without the sale of this particular property levied upon. Then 
 could such an execution interfere with the rights of the heir? 
 
 It does not appear to me that this question can be answered until the 
 fact of satisfaction can be affirmed or repelled. It is for or against the 
 demandant, according to that alternative. 
 
 The fifth is the material question, and since it has been acknowledged 
 in argument, that this suit was instituted on the authority of the case 
 of the Baptist Association, it is necessary first to determine the doctrine 
 Avhich that case establishes. 
 
 The devise there was of lands lying in Virginia ; the intended devisee 
 was an unincorporated society, described in the will as meeting at Phila- 
 delphia; that society became incorporate under a law of Pennsylvania, 
 not of Virginia, and then brought suit in equity in Virginia, to i-ecover 
 the property devised. 
 
 At the hearing, the Court decided upon the single question, " whether 
 the plaintiffs were capable of taking under that will," and accordingly 
 this Court certify an opinion to no other point. Its language is, " that 
 the plaintiffs are incapable of taking the legacy for which this suit was 
 instituted." And, notwithstanding the marginal notes of the reporter 
 to the contrary, that I consider as the only point decided in the cause. 
 What the law of the case would have been, had the attorney-general of 
 Virginia been made a party to the suit, and (I presume also as a neces- 
 sary inference) had the society been incorporated by Virginia, in order 
 to enable them to take the legacy, this Court expressly declines deciding 
 
Inglis v. The Sailor's Snug Haeboe. 447 
 
 (p. 50) ; aiid certainly it would have been deciding between parties not 
 before it, had it undertaken in that suit to pass upon the interest in, or 
 power over the subject existing in the State of Virginia. The statute 
 of 43 Elizabeth had been expressly repealed in Virginia, previous to 
 the death of Hart., the testator ; and although the learned judge who 
 delivered the opinion of the Court, goes so much at large into the origin, 
 construction and .effect of that statute, it could only have been to prove 
 all that the case required to have established, to wit, that it is under that 
 statute alone that, even in England, a court of equity could extend to 
 the complainants the relief which they craved. That statute being re- 
 pealed in Virginia, it followed that the equity powers of the State Courts, 
 and of consequence that of the Circuit Court of the United States, could 
 no longer be exercised over the subject of the charities embraced in that 
 statute ; that the State of Virginia, where the land lay, and not the 
 State of Pennsylvania, stood in the relation of parens patrice, and there- 
 fore, that tho!^ powers and those rights which the crown exercises over 
 charities in England, in order to sustain and give effect to them, could 
 only be exercised in that case by Virginia. 
 
 So far I consider the decision as authoi'ity, and so far it would require 
 more than ordinary ingenuity to excite a reasonable doubt of its correct- 
 ness. I consider it as too plain to be questioned, that the powers which 
 the Cou7-t of Chancery in Great Britain exercises over bequests of chari- 
 ties, in cases where the interest cannot vest under the rigid rules of law, 
 as applied to other bequests, is vested in that Court by, or rather usurped 
 under the statute of Elizabeth. I am not now speaking, it must be 
 noted, of the power of the crotcn in such cases, but of the portion of 
 the prerogative power over charities now exercised by the Court of 
 Chancery in that kingdom. 
 
 I consider it as conclusive to prove the peculiar origin of this power, 
 that there lies no appeal from the decision of the chancellor in charity 
 cases. Cro. Cha. 40, 351. 4 Viner's Abridg. 496. And when cases 
 occur not enumerated in the statute of Elizabeth, or not strictly anal- 
 ogous thereto, the crown still exercises the power of disposing of them 
 by sign manual. See the cases collected in Viner, Charit. Uses, G. 3, 
 and note; also, 7 Ves. 490. So that were the statute of Elizabeth 
 repealed in England to-morrow, I see not by what authority this power 
 could be exercised even there in the Chancery Courts. The histoiy of 
 this branch of the chancellor's jurisdiction proves that it could not be. 
 
448 Inglis v. The Sailoe's Snug Harbor. 
 
 The plain object of the act of 43 Elizabeth is to place in commission 
 a troublesome branch of the royal prerogative, and to vest the commis- 
 sioners with power to institute inquests of office, or by other means to 
 discover charities, or the abuse or misapplication of charities, and to 
 authorize the board to exercise the same reach of discretion over such 
 charities as the crown possessed ; subject, however, to a revising and 
 controlling power in the lord chancellor ; not a mere judicial power, 
 but a ministerial legislation and absolute power; a power, however, 
 secondary or appellative in its nature, not original. This controlling 
 power being absolute and final, soon swallowed up its parent, and be- 
 came original and absolute. One judge admitted the precedent of an 
 original bill in a charity case, a second judge satisfied his scruples upon 
 that precedent, and other judges following, regarded it as a settled prac- 
 tice. But in whatever way the power is exercised, whether as original 
 or appellate, no other authority for its exercise has ever been claimed 
 by the chancellor but the 43d Elizabeth. 
 
 The correctness of the decision of this Court therefore m the Baptist 
 Association case cannot, I think, be disputed. And yet it does in no 
 wise affect the case now before us. But, it is argued that, if the statute 
 43 Elizabeth be in force in New York, and its Courts can exercise an 
 original power under it, or if they can pursue the intermediate steps 
 necessary to the exercise of an appellate or revising power (six in num- 
 ber, I think. Lord Coke makes them, 2 Inst.), still it can only be a suit 
 in chancery, in the name of the people, or of their Attorney-General, or 
 of the corporation constituted by them, although vested with all their 
 interest in, or power over the subject. 
 
 To me it appears demonstrable, that the 43 Elizabeth introduces no 
 new law of charities, makes none valid not valid before it passed, but 
 simply places the right and power of the Court over charities in other 
 hands. If this were not the case, why should bequests to the uni- 
 versities and great schools, bequests in all cases constituting private, 
 visitors, and bequests to towns corporate (section 2 and 3), hospitals, etc., 
 be excepted from its operation ? Why should a more liberal rule be 
 introduced with regard to the enumerated indefinite charities, and the 
 excepted cases remain subject to a more rigid system ? Certainly the 
 enumerated exceptions in that statute can lose nothing in point of merit 
 or claim to public protection and indulgence, by comparison with those 
 acted upon by the statute. Indeed, the preamble explicitly confines the 
 
Inglis v. The Sailor's Snug Harbor. 449 
 
 views of the Legislature to enforcing the application of the charities 
 according to the charitable interest of the donor ; it is the organization 
 of a machine for carrying that interest into effect, without introducing 
 any new rule of law on the subject of construing, applying, or effectu- 
 ating that intention. 
 
 What then was the law of that day, of the time when the 43 Eliza- 
 beth was passed, on the subject of charitable donations ? It was a sys- 
 tem peculiar to the subject, and governed by rules which were applicable 
 to no other ; a system borrowed from the civil law, almost copied ver- 
 batim into the common law writers. This will distinctly appear by 
 comparing Domat with Godolphin, in the Orphan's Legacy. 
 
 It has been said that there are neither adjudged cases nor dicta of 
 elementary writers on the subject of the law as it stood previous to the 
 43 Elizabeth ; but this I think is not quite correct. In Swinburn on 
 Wills, as well as Godolphin's Orphan's Legacy, both books of great 
 antiquity and of high authority, we find all the rules for construing, 
 enforcing, and effectuating charities which have been maintained and 
 acted upon in the chanceiy since the 43 Elizabeth, laid down as the 
 existing laws of charitable devises ; and yet the statute of Elizabeth is 
 not quoted by either as the authority for their doctrines ; but their 
 margins are filled with quotations from books which treat of the civil 
 and common law. God. Orph. Leg., Sec. Ed. 1676, P. 1, ch. 5, sec. 4, 
 p. 17. Swinb. on Wills, P. 1, sect. 16. And in so modern a book as 
 Maddock's Cha., Vol. I. 47, we find the law laid down in these words : 
 " it has been an uniform rule in equity, before as well as after the statute 
 of 43 Elizabeth, ch. 4, that where uses are charitable, and the person 
 has in himself full power to convey, the Court will aid a defective con- 
 veyance to such uses;" and then goes on to enumerate all that variety of 
 cases to which the English Courts have applied the latitudinous prin- 
 ciple, that the statute of charitable uses supplies all the defects of an 
 assurance which the donor was capable of making, even to a devise by 
 a lunatic. 
 
 Nor are these authors without adjudications to sustain the position, 
 that the law was such before as well as after the statute 43 Elizabeth. 
 Rolt's Case in Moore, p. 855, was the case of a will which occurred 
 long before the statute of Elizabeth passed. The devise was of land 
 not in use, and not devisable by law or custom ; so that had it been to 
 an individual, it had been clearly void. Accordingly, the heir at law 
 38* 2D 
 
450 Inglis v. The Sailor's Sntjg Haebor. 
 
 entered ; yet, after the statute of Elizabeth, it was hunted up and re- 
 turned upon inquest, under the statute ; and the lord chancellor on an 
 appeal, having called in the aid of the two Gommon law chief justices, 
 they all held it a good limitation or appointment. Now there never 
 has been a time when a subsequent statute, general in its provisions, as 
 was that of charitable uses, could divest a right legally descended upon 
 an heir at law. It follows, that the devise must have been good with- 
 out the aid of that statute ; this decision took place in Court twenty 
 years after the date of the statute. 
 
 So also in Revett's Case in the same book, p. 890, when the will was 
 made and the death of the devisor took place in 1586, about seven years 
 before the statute of 43 Elizabeth, and there had been no surrender, the 
 land being copyhold, so that the devise to the charity was clearly void 
 if made to an individual, and accordingly the younger son entered ; the 
 charity was enforced against a purchaser from the heirs, under the idea 
 that it was good as an appointment ; clearly in pursuance of the rule, 
 that wherever the donor has power to convey, and manifestly intends 
 to convey, the law will make good every deficiency in favor of chari- 
 ties. 
 
 And in the case of Sir Thomas Middleton, which also happened before 
 the statute, and where the legal defect lay in the legal insufficiency of 
 the party in interest, and which was not a case of devise, yet it was held 
 good. 
 
 It is true Perkins gives an instance of a very early date (40 Edw. 3 ; 
 . see Perkins, sec. 510), of a devise to a society not incorporated with 
 power to purchase, in which the devise was held void ; but on that case 
 it may be remarked, that as the clergy had an exclusive possession of 
 the Court of Chancery for many years after (to 26 Henry 8), it is easy 
 to perceive how the law of charities came to be improved to what it 
 appears to have been at the date of the cases quoted from Moore. And 
 Ihere are two other remarks applicable to the cases in Perkins. In a 
 modified sense those devises are held to be void even at this day, and to 
 need the aid of a royal prerogative still existing in the Court, to relieve 
 the devisees against the rules of the common law. It is obvious that 
 property, devised to charities under such circumstances as prevent its 
 vesting by the rules of the common law, is placed in a situation anal- 
 ogous to that of escheat, and afterwards disposed of under the king's 
 sign manual, according to his conscience, actual or constitutional ; so 
 
Inglis v. The Sailor's Snttg Harbor. 451 
 
 that In a trial at common law, such devise would be held void, unless 
 aided by prerogative power. 
 
 And, secondly, there is this difference between the case in Perkins 
 and the present case, that the former is expressed in words which con- 
 template vesting presently ; the latter, in words which contemplate a 
 future vesting : which I consider an all important feature in the present 
 case, and one which may give validity to the present devise, without 
 resorting to the aid of those principles which appear peculiar to chari- 
 table bequests. 
 
 But as a charity, to be governed by the law of the State of New York, 
 it appears to me almost idle to view this case with reference to any other 
 rule of decision than their own adjudications. The case of the Trustees 
 of New Rochelle, 8 Johns. Ch. Rep., p. 292, was a case of greater dif- 
 ficulties than the present ; for there the devise is immediate in presenti, 
 to a devisee having no capacity to take at the time. The Legislature 
 afterwards gave that capacity, and the Court held the devise valid ; nor 
 is it unimportant in that case to observe, that the case in Ambler 422, 
 of the devise to " the poor inhabitants of St. Leonard's Shore-Ditch," 
 is recognized as authority; as well as that of the Attorney- General v. 
 Clarke, in the same book, 651. 
 
 Now this decision seems full to these points : 1. That the Legislature 
 of that State can, ex post facto, give a capacity to take a charity, where 
 there was no such capacity existing at the time of devise over, is a case 
 where the future existence of that capacity was not contemplated by the 
 testator. 2. That an act of incorporation, with capacity to take, dis- 
 penses with the presence of the representative of the State, in a suit to 
 recover such a charity. 
 
 What more can be required in the present case, especially where the 
 devisee is the party demandant ? 
 
 It is no objection to the authority of the New Eochelle case, that it 
 was a suit in equity ; for in a case like the present, where nothing is 
 wanting but a competent party to sue or be sued, whenever that party 
 comes in esse, there can be no reason why the suit should not be at law, 
 if courts of law are competent to give relief. Had the devise been void 
 in the case referred to, the estate must have vested in the legal represen- 
 tative, and could no more have been shaken in equity than at law. 
 
 But I have said, that the defendant here might dispense with the aid 
 of the peculiar principles of the law of charities ; and my opinion dis- 
 
.452 INGI.IS V. The Sailor's Sntjg Harbor. 
 
 tinctly is, that the devise is good upon general principles, in every re- 
 spect, unless it be in the time of vesting ; then it is not restricted within 
 the legal limits, since the Legislature may, by possibility, never consti- 
 tute the corporation contemplated in the will. 
 
 It is in general true, that where there is a pi-esent immediate devise, 
 tliere must exist a competent devisee, and a present capacity to take. 
 But it is equally true, that if there exists the least circumstance from 
 which to collect the testator's contemplation or intention of anything 
 else than an immediate devise to take effect in presenti, then, if confined 
 within the legal limits, it is good as an executory devise. 
 
 This is the case of a devise to an infant in ventre sa mere; and this 
 the ground of the distinction in Hobart 33, of a present devise to a 
 corporation where it is or is not in progress towards positive existence. 
 
 Now the present case is one clearly of an alternative devise to such 
 and such official characterSj if by virtue of that devise they can take in 
 perpetuity and succession ; and if not, then to them when constituted a 
 body politic by positive statute. Here is clearly contemplated a future 
 vesting, to depend on a capacity to take, to be created by a legislative 
 act ; and if the passing of that legislative act had been restricted by the 
 will, in point of time, to the lives of the individuals filling those offices 
 at the time of the death of the testator, on what possible ground could 
 the devise have been impeached ? 
 
 Does then the law invalidate the devise for want of such restriction, 
 or some other equivalent to it ? It is perfectly clear that the law of 
 England does not, and never did, as relates to charities ; at least where 
 there has been no previous disposition. In this respect it seems to con- 
 stitute an exception to the law of executory devises ; as is implied in 
 the general reference to the prerogative of the crown to give it legal 
 efficiency, by his sign manual, and as is distinctly recognized in the case 
 of the Trustees of New Eochelle, in the Courts of New York ; a ease 
 in which the plaintiffs might as well have waited forever upon the legis- 
 lative will, as in the present case. 
 
 There may be a reason for this distinction, since it depends upon the 
 sovereign will to prevent the perpetuity at once ; and the presumption 
 is, that the Legislature will not delay to do that which it ought to do. 
 And whence at last arises this rule against perpetuities ? It is altogether 
 an act of judicial legislation, operating as a proviso to the statute of 
 wills ; a restriction upon the testamentary power. The authority from 
 
Inglis v. The Sailor's Snug Harbor. 463 
 
 which the exception emanated could certainly limit it so as to prevent 
 its extension to an object under the care of the sovereign power. 
 
 Upon the whole, I am of opinion that the act of incorporation was 
 at least equivalent to the king's sign manual, and vested a good legal 
 estate in the tenant. That although in the interval it should have de- 
 scended upon the heir, it descended subject to be divested and passed 
 over by tliat exercise of prerogative power. But I perceive no necessity 
 for admitting that it ever descended upon the heir ; since the right of 
 succession seems rather to be in the commonwealth in the case of charities, 
 as parens patrice. 
 
 Mr. Justice Story. 
 
 This cause was argued with gi-eat ability and learning at the last term 
 of this Coui-t, and has been held under advisement until this time. In 
 the interval, I have pi-epared an opinion upon all the points argued by 
 counsel ; and upon one of those points of leading importance, I have 
 now the misfortune to differ from a majority of my brethren. Upon 
 another leading point, that of the alienage of the demandant, my opinion 
 coincides generally -with that of the majority of the Court ; but the 
 reasons, on which it is founded, are given more at large than in that 
 now delivered by my brother Thompson. Under these circumstances, 
 I propose to deliver my opinion at large upon all the points argued in 
 the cause, mainly in the order in which they were discussed by the 
 counsel. It is not without reluctance that I deviate from my usual 
 practice of submitting in silence to the decisions of my brethren, when 
 I dissent from them ; and I trust, that the deep interest of the questions, 
 and the novelty of the aspect under which some of them are presented, 
 will furnish an apology for my occupying so much time. 
 
 The first point is, whether the devise in the will of Robert R. Ran- 
 dall of the lands in question, is a valid devise, so as to divest the heir 
 at law of his legal estate, or to affect the lands in his hands with a trust. 
 
 In considering this question, it appears to me that this Court is to 
 look iuto the terms of the will, and to construe it according to the in- 
 tention of the testator. That intention has been justly said to constitute 
 the pole star to guide Courts in the exposition of wills. When the in- 
 tention is once fairly ascertained, it is wholly immaterial that it cannot 
 be carried into effect by the principles of law ; for our duty is to iu- 
 tei-pret, and not to make wills for testators. 
 
454 Inglis v. The Sailor's Snug Harbor. 
 
 In looking at the terms of the present devise, it appears to me cleai', 
 that tlie testator's intention was to vest in certain persons, in their official, 
 and not in their private capacityj all the residue of his estate for a certain 
 charity stated in the devise. The language is, " I give and bequeath 
 the same unto the chancellor of the State of New York, the mayor and 
 recorder of the city of New York, the president of the chamber of com- 
 merce," etc., etc. Did he by these tei-ms mean to devise to the individuals 
 Avho then occupied these offices, the estate in questioA^ or to the persons 
 who might hold them at the time of his death, or to the persons who 
 might successively from time to time hold them ? It Avas certainly com- 
 petent for him to devise to them personally, and in their private capacity, 
 by theu' official description. If a testator were by his will to give an 
 estate to the bishop of New York for life, or to him and his heirs, with- 
 out giving him his Christian or surname, there is no doubt that the de- 
 vise might well take effect, as a devise to the then incumbent in office, 
 as a desoriptio personce. The law does not require, to make a devise or 
 legacy valid, that the party should be designated by his name of baptism 
 or surname. It is sufficiept if he be pointed out by any description, 
 leaving no room for doubt as to the identity and certainty of the person. 
 A devise to the eldest son of A. is just as good as if his name were given. 
 A devise to the present President of the United States could be just as 
 good as if his name were written at large in the will. The maxim of 
 law is, that the designation must be certain as to the person to take ; and 
 id certvm est, quod cerium reddi potest. There is no doubt, then, that 
 the chancellor, mayor and recorder, etc., etc., of New York might take 
 as individuals, if such were the intention of the testator. I go farther 
 and say, that if the testator did intend the present devise to them in 
 then* private characters, they would take not merely an estate for life in 
 the premises, but an estate in fee. My reason is, that the scope and 
 objects of the charit}', being perpetual, require that construction of the 
 will to carry ioto effect the intention of the testator.* 
 
 But the difficulty is in arriving at the conclusion upon the terms of 
 the will, that the testator did mean any devise to them in their private 
 capacities. It is manifest from his language, that he did not devise 
 to the then chancellor, mayor and recorder, etc., etc., in their private 
 capacities, because his language is, that it is to the chancellor, etc., etc., 
 
 * Cruise's Digest. Devise, ch. 11, sect. 72. 
 
Inglis v. The Sailor's Snug Harbor. 4fi5 
 
 "for tlie time being, and their respective successors in the said offices for- 
 ever." It is then a devise to them, as officei-s, during their continuance 
 in office, and the estate is to go to tlieir successors in office forever ; so 
 that none of tlie devisees are to take any certain estate to themselves, 
 but only while they continue in office. It is said that the Court may 
 reject the latter words, if inconsistent with the avowed intention and 
 objects of the will. If the other language of the will required an in- 
 terpretation of these words diiferent from the ordinary meaning, there 
 might be good ground for such an argument ; but that the devise will, 
 in point of law, become ineffectual if they are not rejected, furnishes no 
 ground for the Court to exclude them. Words which are sensible in 
 the place where they occur, and express the testator's intention, are not 
 to be rejected because the law will not carry into effect that intention. 
 If it were otherwise, courts of law would make wills, and not construe 
 them. But what ground is there to say, that the words " for the time 
 being," and " their successors in office " ought to be rejected ? The 
 former clearly designate what chancellor, mayor and recorder, etc., etc., 
 are meant. How then can the Court take one part and reject the other 
 pai-t of the description ? How can the Court say that the testator meant 
 the then incumbents in office, when he has spoken of them as the in- 
 cumbents for the time being ? His intention clearly is that the charity 
 shall be a pei-petuity. He devises to the successors in office forever. 
 They are to be the administrators of the charity forever. Upon what 
 ground can the Court exclude the successors from the administration of 
 the charity, when the testator has so designated them ? "Why may we 
 not equally well exclude the present incumbents, as the futui'e ? Both 
 ai-e named in the will ; both are equally within the view of the testator 
 of equal regard. Suppose all the other incumbents had died, or had 
 been removed from office, is there a word in the will that shows that 
 they or their heirs could still act as trustees, when they ceased to possess 
 office, in exclusion of the actual incumbents? If not, how can the 
 Court say that it will defeat the main intention as to the administrators, 
 and yet fulfil the chariiy as the testator designed it should be executed ? 
 But this exposition does not rest on a single clause of the will. It 
 pervades it in all the important clauses. In another clause of the will 
 the testator directs that the trustees shall administer the charity " in 
 such manner as the said trustees, or a majority of them, may from time 
 to time, or their successors in office may from time to time direct." And 
 
456 Inglis v. The Sailor's Snttg Harbor. 
 
 again, the testator adds, " it is my intention that the institution hereby 
 directed and created should be perpetual, and that the above-mentioned 
 officers for the time being, and their successors should forever continue, 
 and be the governors thereof, and have the superintendence of the same." 
 Here is a most deliberate re-statement of his intention and objects. The 
 governors and administrators of his charity are not to be the then in- 
 cumbents in office, but the officers for the time being ; not the individuals 
 when out of office, but their successors in office. What right then can 
 this Court have to say that the successors in office shall not be governors ? 
 "Would it not be a plain departure from the express intention and solemn 
 declarations of the will ? The testator seems to have been apprehen- 
 sive, that after all there might be some impediment in carrying his in- 
 tention into effect. What then does he provide ? That his intention 
 shall be disregarded ? That provisions of his will, as to successors, etc., 
 etc., shall be disregarded or rejected ? No, so far from it, that he goes 
 on to provide for the emergency, so as to give full effect to his intention. 
 His words are, " that it is my will and desire, that if it cannot be legally 
 done, according to my above intention, by them (the trustees) without 
 an act of the Legislature, it is my wUl and desire that they will, as soon 
 as possible, apply for an act of the Legislature to incorporate them for 
 the purposes above specified." So that the successors in the manner 
 above-mentioned constituted a primary, as well as a perpetual object of 
 the devise. It seems to me so plain and clear upon the language of the 
 will, that the testator never abandoned the intention of having the trus- 
 tees take in their official and not in their private capacity, that with 
 great deference to the judgment of others, I am unable to perceive any 
 ground on which to rest a different opinion. 
 
 If this is so, then it is next to be considered whether such devise is 
 void at law. I am spared the necessity of going at large into that ques- 
 tion, by the decision of this Court in the case of the Trustees of the 
 Philadelphia Baptist Association v. HarSs Executors, 4 Wheat. Eep. 1, 
 where the subject was very amply discussed; and for reasons, in my 
 judgment unanswerable, it was there decided that such a devise was 
 void at law. Upon that occasion I had prepared a separate opinion ; 
 but that of the Chief Justice was so satisfactory to me, that I did not 
 deem it necessary to deliver my own. 
 
 If the devise was void at law at the time when it was to have effect, 
 viz., at the death of the testator, the subsequent act of the Legislature 
 
Inglis v. The Sailor's Si^dg Haeboe. 457 
 
 of New York could not have any effect to divest the vested legal title 
 of the heirs of the testator. The devise was not a devise to a corpora- . 
 tion not in esse, and to be created in futuro. It was a devise in presenti, 
 to persons who should be officers at the death of the testator, and to their 
 successors in office. The vesting of the devise was not to be postponed 
 to a future time, until a corporation could be created. It was to take 
 immediate effect ; and if the trustees could not exercise their powers in 
 the manner prescribed by the testator, they were to apply to the Legis- 
 lature for an act of incorporation. Assuming, then, that a devise per 
 verba defuiuro,io a corporation not in esse, which is to take effect when 
 the corporation should be created, would be good, and vest, by way of 
 executory devise, in the corporation when created, as seems to have been 
 Lord Chief Justice Wilmot's opinion (Wilmot's Opinion, p. 15); it is 
 a sufficient answer that such is not the present case. From the other 
 report of the same case. Attorney- General v. Dovming, Amb. 550, 571, 
 and Attorney- General v. Bowyer, 3 Ves. 714, 727, I should deduce the 
 conclusion, that the case turned upon the peculiar doctriues of the Court 
 of Chancery in respect to charities ; and that Lord Camden's opinion 
 was founded on that. His judgment is not, as far as I. know, in print ; 
 and whether he thought that at law a devise in futuro to an executory 
 corporation would be good, does not appear. In the case before him he 
 acted upon it as a charitable trust, not as a devise of the legal estate.* 
 
 But it is said, that there are cases in which it has been held, that a 
 devise to persons in their official capacity is good to the party in his 
 natural capacity ; and that it is not true, that, because the devisees can- 
 not take in succession, they cannot take at all : a case from Brook's 
 Abridgment, title Corporation, pi. 34, is relied on. There the principal 
 point was of a different nature : whether a corporation composed of a 
 master and fraternity, could present the master to a benefice. And Pol- 
 lard, J. on that occasion said, " if J. S. is dean of P., I may give land 
 to him by the name of dean, «tc., and his successors, and to J. S. and 
 his heirs, and there he shall take as dean, and also as a private man ; 
 and he is tenant in common with himself." Now, the plain meaning of 
 this is, that because he took one moiety in his official capaciiy to hinl 
 and his successors, that did not disable him to take the other moiety to 
 him and his heirs, but he held the latter in his private capacity. An- 
 
 * See also, 1 Boll. Ab. Devise, H. sec. 1. Com. Dig. Devise, K. 
 39 
 
458 Inglis v. The Sailor's Snug Harbor. 
 
 other case is from Co. Litt. 46, b, where it is said, if a lease for years 
 be made to a bishop and his successors, yet his executors and administra- 
 toi-s shall have it in autre droit; for regularly no chattel can go in suc- 
 cession in case of a sole corporation, no more than if a lease be made to 
 a man and his heirs, it can go to his heirs.* Now, in the case of a sole 
 corporation, it is manifest that the intention is to give the chattel to the 
 actual incumbent in office, for his life, and he is entitled to hold it bene- 
 ficially. But no chattel can pass in succession ; and then the question 
 arises, whether the Court will declare the gift void, as to the residue of 
 the term, or consider the gift absolute. The construction adopted has 
 been to consider the intent to be executed ey pres ; and, as the testator 
 intended to give the whole, to vest the term absolutely in the bishop, 
 and then by operation of law it would go to his assigns. But this is a 
 case of a sole corporation, where the party is capable to take in his cor- 
 porate, as well as in his natural capacity for life. The present is a case 
 of aggregate persons, not capable of taking in a corporate capacity. 
 To give the estate to them in their natural capacity, and for life only, 
 would defeat the testator's intention ; for he meant a perpetuity of trust, 
 aud to persons in office, however often the incumbents might change : 
 to give them, in their natural capacities, an estate for life when not 
 officers, would defeat the primaiy object which he had in view. He 
 m^ant no beneficial interest to any incumbent, but a charitable trust to 
 a succession of official tnistees.f 
 
 It is also said, that in a will a particular may be made to yield to a 
 more general intent. Certainly it may ; but then the difficulty in the 
 application of this rule to the present case is, that the argument insists 
 upon a construction which I cannot but deem an overthrow of the 
 general, to subserve an iateut not indicated. Because the testator has 
 expressed an intent to be cai'ried into effect one way, which cannot con- 
 sistently by law be so ; aud the Com"t can see another way, by which 
 he might have carried it into effect, if he had thought of it ; it does not 
 follow that the Com-t can do that which the testator might have done, 
 and new model the provisions of the will. If a testator should, pei' 
 verba de presenti, devise an estate to a coi-poration not in esse, and he 
 knew the fact, or mistook the law, the Court could not construe the 
 words as de futuro, and declare it a good devise to a corporation to be 
 
 * See Co. Litt. 9, a. 
 
 t See 2 Preston on Estates, 5, 6, 7, 46, 47, 48. Com. Dig. Estates, a. 2. 
 
Inglis v. The Sailor's Snug Harbor. 469 
 
 created in futuro. The case in 1 Roll. Abridg. Devise, H. 1. 50, is 
 decisive of that. The general iatention here appeai-s to me to be to 
 create a perpetual trust in certain trustees in succession, for chai-ity ; and 
 I can perceive no particulai" intent, as distinguishable from that general 
 intent. The perpetuity, the succession and the triLsteeship, are in his 
 view equally substantial ingredients. "So far from allowing any other 
 than the official trustees to administer it, he even points out that if the 
 trust cannot be executed by them, the estate, if it descends to his heirs, 
 shall descend clothed with a trust. And he even appoints the same 
 trustees and their successors in office executors of his will. 
 
 I come now to the other part of the question, whether, if the devise 
 be void at law, the estate in the hands of the heirs is affected with the 
 trust in favor of the charity. It appears to me most manifest, that it 
 is affected by the trust, if we consult either the intention of the testator 
 or the express terms of the will. The closing paragraph of the will is, 
 in my view of it, decisive, as creating an express trust in the heire. 
 " It is," says the testator, " my desire, all courts of law and equiiy will 
 so construe this my said will, as to have the estate appropriated to the 
 above uses ; and that the same should ia no case, for want of form or 
 otherwise, be construed as that my relations, or any other persons, should 
 heir, possess, or enjoy my property, except in the manner and for the 
 uses herein above specified." 
 
 If no trustees had been named in the will to execute the charity, it 
 seems to me very clear that these terms would have created a trust in 
 the heirs. There cannot, as I think, be a doubt, that independent of 
 the statute of mortmain, 9 Geo. 2, ch. 26, the present devise would be 
 held a good chai-itable devise, and would be enforced in equity, at least 
 since the statute of 43d of Elizabeth of charitable uses. The case of 
 White V. White; of Attorney- General v. Downing, Amb. Rep. 550, 571 ; 
 of Attorney- General v. Tancred, Amb. 351, S. C. 1 Eden's Rep. 10; 
 and of Attorney-General v. Bowyer, 3 Ves. 714, 717, would alone be 
 decisive ; but there are many others to the same effect.* Whether the 
 statute of 43 Elizabeth is ia. force in the State of New York, or whether, 
 independent of any enactment, a com-t of equity could enfoi'ce tliis as 
 a charitable trust in the exercise of its general jurisdiction, or as tlie 
 
 * See note on Charitable Uses, 4 Wheat. Eep., Appendix, 1, 11, 12. Cog- 
 geshall v. Felton, 7 Johns. Cha. Rep. 292. Kirkhank v. Hudson, 7 Price, 212. 
 Duke Charitable Uses, by Bridgmau, p. 361, 374, 375, 390. 
 
460 Inglis v. The Sailor's Snug Harbor. 
 
 delegate, for this purpose, of the parental prerogative of the State ; or 
 whether such Court could hold it ijtterly void, it is unnecessary for us to 
 consider ; that point may well enough be left to the decision of the proper 
 State tribunal, when the case shall come before it. At present I do not 
 think it necessary to say more, than that if the trust be utterly void, 
 then the heirs would by operation of law take the legal estate stripped 
 of the trust. If the trust be good, then it is knit to the estate, and the 
 heirs take it subject to the trust. 
 
 But it is said, that if the trust be valid, the Legislature had a perfect 
 right to enforce it, and their act of incorporation amounts to a legal exe- 
 cution of the trusts, and vests the estate in the corporation. Now, what- 
 ever may be the rights of the State, as parens patrice, to enforce this 
 charity, it can enforce it only as a trust. If the legal estate is vested in 
 the heirs subject to the trust, the Legislature cannot by any act, ipso 
 facto, divest that legal title, and transfer it to the corporation. It is 
 one thing to enforce a charitable trust, and quite another thing to destroy 
 the legal rights of the parties to which it is attached. If the devise 
 had been to certain trustees by name, upon trust for the charity ; could 
 the Legislature have a right to divest the legal title ? The case of the 
 trustees of Dartmouth College v. Woodward, 4 Wheat. Eep. 618, in its 
 principles, bears against such a doctrine. The right to enforce the trust 
 and operate upon the legal estate is a right to be exercised by judicial 
 tribunals, and not by legislative decrees. The doctrine of the Supreme 
 Court of New York is, that the Legislature thereof has no authority to 
 divest vested legal rights.* 
 
 But I cannot admit that the act of incorporation was intended to have 
 such an effect ; it has no terms which divest the legal title of the heirs ; 
 it merely incorporates the trustees and their successors, and clothes them 
 with the usual powers to carry the trust into effect. It presupposes that 
 the estate was already vested in them by the will. They are made 
 " capable in law of holding and disposing of the estate " devised by the 
 will. It is true that the uses are added, " and the same (estate) is hereby 
 declared to be vested in them and their successors in office for the pur- 
 poses therein (in the will) expressed." But this was not, as I think, in- 
 tended to vest the estate in them as a legislative investiture ; but to de- 
 
 * Dash V. Van Cleek, 7 Johns. Eep. 477. Bradshaw v. Bogers, 20 Johns. 
 Eep. 103. Oatlin v. Jackson, 8 Johns. 520. Terrett v. Taylor, 9 Cranch 93. 
 Wilkinson v. Leland, 2 Peters 627, 657. 
 
Inglis v. The Sailoe's Snug Harbor. 461 
 
 clare that the estate was vested in them for the purposes of the charity, 
 and not otherwise. The preamble of the act too shows, that the trus- 
 tees did not ask to have the estate vested in them, but that inconveniences 
 had arisen in the management of the estate from the changes of office. 
 This is very strong to show that the Legislature acted solely for the pur- 
 pose of avoiding such inconveniences, and not to give them an estate to 
 which they then had no title, and which they then professed to have in 
 their management. 
 
 In every view, therefore, in which I can contemplate this point, I 
 feel compelled to say that the devise, if a valid devise, is not a devise 
 valid so as to divest the heir at law of his legal estate ; but that the 
 devise can have effect, if at all, only as a trust for a charity fastened on 
 the legal estate in his hands. 
 
 In this opinion as to the nature and effect of the devise, in which I 
 have the misfortune to differ from that of the Court, I am authorized 
 to say that I have the concurrence of the Chief-Justice. 
 
 Another question is, whether the demandant was or was not capable 
 of taking lands in the State of New York by descent ? And this ques- 
 tion is presented upon four different aspects of the facts. 
 
 In order to explain the views which I take of this part of the case, 
 it will be necessary to state some general principles upon the subject of 
 alienage. The rule commonly laid down in the books is, that every 
 person who is born within the ligeance of a sovereign is a subject ; and, 
 e converso, that every person born without such allegiance is an alien. 
 This, however, is little more than a mere definition of terms, and affords 
 no light to guide us in the inquiry what constitutes allegiance, and who 
 shall be said to be born within the allegiance of a particular sovereign ; 
 or in other words, what are the facts and circumstances from which the 
 law deduces the conclusion of citizenship or alienage. Now, allegiance 
 is nothing more than the tie or duty of obedience of a subject to the 
 sovereign under whose protection he is ; and allegiance by birth, is that 
 which arises from being born within the dominions and under the pro- 
 tection of a particular sovereign. Two things usually concur to create 
 citizenship ; first, birth locally within the dominions of the sovereign ; 
 and, secondly, birth within the protection and obedience, or in other 
 words, within the ligeance of the sovereign. That is, the party must 
 be bom within a place where the sovereign is at the time in full posses- 
 sion and exercise of his power, and the party must also at his birth 
 39* 
 
462 Inglis v. The Sailor's Snug Haebor. 
 
 derive protection from, and consequently owe obedience or allegiance to 
 the sovereign, as such, de facto.* There are some exceptions, which are 
 founded upon peculiar reasons, and which, indeed, illustrate and confirm 
 the general doctrine. Thus, a person who is born on the ocean, is a 
 subject of the prince to whom his parents then owe allegiance ; for he 
 is still deemed under the protection of his sovereign, and born in a place 
 where he has dominion in common with all other sovereigns. So the 
 children of an ambassador are held to be subjects of the prince whom 
 he represents, although born under the actual protection and in the do- 
 minions of a foreign prince. Birth within the dominions of a sovereign 
 is not always suificient to create citizenship, if the party at the time does 
 not derive protection from its sovereign in virtue of his actual posses- 
 sion ; and on the other hand, birth within the allegiance of a foreign 
 sovereign, does not always constitute allegiance, if that allegiance be of 
 a temporary nature within the dominions of another sovereign. Thus 
 the children of enemies, born in a place within the dominions of another 
 sovereign, then occupied by them by conquest, are still aliens ; but the 
 children of the natives, born during such temporary occupation by con- 
 quest, are, upon a reconquest or reoccupation by the original sovereign, 
 deemed, by a sort of postliminy, to be subjects from their birth, although 
 they were then under the actual sovereignty and allegiance of an enemy. 
 The general principle of the common law also is, that the allegiance 
 thus due by birth, cannot be dissolved by any act of the subject. It 
 remains perpetual, unless it is dissolved by the consent of the sovereign 
 or by operation of law. Upon the cession of a countiy it passes to the 
 new sovereign ; for the sovereign power is competent to transfer it by a 
 voluntary grant. Upon the conquest of the country it passes by opera- 
 tion of law to the conqueror ; who as sovereign de facto has a right to 
 the allegiance of all who are subdued by his power, and submit to the 
 protection of his arms. Upon the abdication of the government by one 
 prince, it passes by operation of law to him whom the nation appoints 
 as his successor. Thus, by the conquest of England, the allegiance of 
 all Englishmen passed to William the Conqueror ; by the abdication of 
 James II. their allegiance passed to William of Orange ; and by the 
 cession to France of the Anglo-French provinces of England, the 
 allegiance of the natives passed to the new •sovereign. These cases are 
 
 * vSee Calvin's case, 7 Co. 1. Doe ex dem. of Buroure v. Jones, 4 Term. 
 Sep. 300. 1 Bl. Comm. 
 
Inglis v. The Sailor's Snttg Harbor. 463 
 
 plain enough upon the doctrines of municipal law, as well as upon those 
 which are recognized in the law of nations. 
 
 But a case of more nicety and intricacy is, when a country is divided 
 by a civil war, and each party establishes a separate and independent 
 form of government. There, if the old government is completely over- 
 thrown, and dissolved in ruins, the allegiance by birth would seem by 
 operation of law to be dissolved, and the subjects left to attach them- 
 selves to such party as they may choose, and thus to become the volun- 
 tary subjects, not by birth but by adoption, of either of the new gov- 
 ernments. But where the old government, notwithstanding the division, 
 remains in operation, there is more difficulty in saying, upon the doctrine 
 of the common law, that their native allegiance to such government is 
 gone, by the mere fact that they adhere to the separated temtoiy of their 
 birth, unless there be some act of the old government virtually admits 
 ting the rightful existence of the new. By adhering to the new gov- 
 ernment, they may indeed acquire all the rights, and be subject to all 
 the duties of a subject to such government. But it does not follow that 
 they are thereby absolved from all allegiance to the old government. 
 A person may be, what is not a very uncommon ca.se, a subject owing 
 allegiance to both governments, ad urtiusque fidem regis. But if he 
 chooses to adhere to the old government, and not to unite with the new, 
 though governing the territory of his birth, it is far more difficult to 
 affirm, that the new government can compel or claim his allegiance in 
 virtue of his birth, although he is not within the territory, so as to make 
 him responsible criminally to its jurisdiction. It may give him the 
 privileges of a subject, but it does not follow that it can compulsively 
 oblige him to renounce his former allegiance. Perhaps the clearest 
 analogy to govern such cases is to bring them within the rule that ap- 
 plies to cases of conquest, where those only are bound to obedience and 
 allegiance who remain under the protection of the conqueror. 
 
 The case of the separation of the United States from Great Britain, 
 is perhaps not strictly brought within any of the descriptions already 
 referred to ; and it has been treated on many occasions, both at the bar 
 and on the bench, as a case sui generis. Before the revolution, all the 
 colonies constituted a part of the dominions of the king of Great Britain, 
 and all the colonists were natural born subjects, entitled to all the priv- 
 ileges of British born subjects, and capable of inheriting lands in any 
 part of tlie Biitish dominions, as owing a common allegiance to the 
 
464 Inglis v. The Sailor's Snug Harbor, 
 
 British crown. But in each colony there was a separate and independent 
 government established under the authority of the crown, though in 
 subordination to it. In this postui-e of things the revolution came ; and 
 the Declaration of Independence acting upon it, proclaimed the colonies 
 free and independent States; treating them not as communities, in which 
 all government was dissolved, and society was resolved into its first 
 natural elements, but as organized States, having a present form of gov- 
 ernment, and entitled to remodel that form according to the necessities 
 or policy of the people. The language of the Declaration of Indepen- 
 dence is, that Congress solemnly publish and declare, "that these united 
 colonies are, and of right ought to be, free and independent States; that 
 they are absolved from all allegiance to the British crown; and that all 
 political connection between them and the State of Great Britain is and 
 ought to be totally dissolved ; and that as free and independent States, 
 they have full power to levy war, conclude peace, contract alliances, 
 establish commerce, and do all other acts and things which independent 
 States may of right do." It is plain that this instrument did not con- 
 template an entire dissolution of all government in the States ; which 
 would have led to a subversion of all civil and political rights, and a 
 destruction of all laws. It treated the colonies as States, and simply 
 absolved them from allegiance to the British crown, and all political 
 connection with Great Britain. The States so considered it : some of . 
 them proceeded to act and legislate before the adoption of any new con- 
 stitution ; some of them framed new constitutions ; and some of them 
 have continued to act under their old charters down to the present day. 
 They ti'eated the case as it was treated in England upon the abdication of 
 James II., and provided for it, by resorting to that ultimate sovereignty 
 residing in the people, to provide for all cases not expressly provided for 
 in their laws. 
 
 Antecedent to the revolution, the inhabitants of the colonies, whether 
 natives of the colonies, or of any othei* of the British dominions, owed 
 no allegiance except to the British crown. There was not, according to 
 the common law, any secondary or subordinate allegiance to the colony 
 itself, or the government therein established, as contradistinguished from 
 the general allegiance to the British crown. When, therefore, the Decla- 
 ration of Independence absolved all the States from allegiance to the 
 British crown, it was an act of one party only. It did not bind the 
 British government, wlilcli was still at liberty to insist, and did insist 
 
Inglis v. The Sailor's Snug Harbor. 465 
 
 upon the absolute nullity of the act, and claimed the allegiance of all 
 the colonists as perpetual and obligatory. From this perplexing state 
 of affairs, the necessary accompaniment of a civil war, it could not 
 escape the notice of tlie eminent men of that day, that most distressing 
 questions must arise ; who were to be considered as constituting the 
 American States, on one side, and " the State of Great Britain," on the 
 other ? The common law furnished no perfect guide, or rather admitted 
 of different interpretations. If, on the one side, it was said, that all 
 persons born within a colony owed a perpetual allegiance to that colony, 
 whoever might be the sovereign, the answer was, ^that the common law 
 admitted no right in any part of the subjects to change their allegiance 
 without the consent of their sovereign, and that the usurpation of such 
 authority was itself rebellion; for "nemo potest exuere jmtriam" was the 
 language of the common law. In respect to persons who were not 
 natives, but inhabitants only, in a colony, at tlie time of the assertion of 
 . its independence, there was still less reason to claim their allegiance. If 
 they were aliens, there was no pretence to say that they could be bound 
 to permanent allegiance against their will. If they were born in Eng- 
 land, or elsewhere in the British dominions, out of the colony, they 
 were as little bound to permanent allegiance; because they -inhabited, 
 not as colonists, but as British subjects. In respect to both these cases 
 (L e., foreigners and British subjects), no colony, upon assuming to be an 
 independent State, could, against their will, make them members of the 
 State. It would be an exercise of authority not flowing from its rights 
 as an independent State, and at war with the admitted rights of other 
 nations, by the law of nations, to hold the allegiance of their own sub- 
 jects. In order, therefore, to make such persons members of the State, 
 there must be some overt act or consent ou (heir own part, to assume a 
 character; and then, and then only, could they be deemed, in respect to 
 such colony, to determine their right of election. 
 
 Under the peculiar circumstances of the revolution, the general, I do 
 not say the universal, principle adopted, was to consider all persons, 
 whether natives or inhabitants, upon the occurrence of the revolution, 
 eutitled to make their choice, either to remain subjects of the Britisii 
 crown, or to become members of the United States. This choice Avas 
 necessarily to be made within a reasonable time. In some cases that 
 time was pointed out by express acts of the Legislature ; and the fact 
 of abiding within the State after it assumed independence, or after some 
 
 2E 
 
466 Inglis v. The Sailor's Snug Haeboe. 
 
 other specific period, was declared to be an election to become a citizen. 
 That was the course in Massachusetts, New York, New Jersey, and 
 Pennsylv^ia. In other States, no special laws were passed ; but each 
 case was left to be decided upon its own circumstances, according to the 
 voluntary acts and conduct of the party. That the general principle of 
 such a right of electing to remain under the old, or to contract a new 
 allegiance, was recognized, is apparent from the cases of the Common- 
 wealth V. Chapman, 1 Dall. Rep. 53. Caignet v. Fdtit, 2 Dall. Rep. 
 234. Martin v. The Commonwealth, 1 Mass. Rep. 347, 397. Palmer 
 V. Downer, 2 Mass. Rep. 179, note. S. C. Dane's Abridg., ch. 131, art. 
 7, sec. 4. Kilham v. Ward, 2 Mass. Rep. 236, and Gardner v. Ward, 
 2 Mass. Rep. 244, note ; as explained and adopted in Inhabitants of 
 Cumminffton v. Inhabitants of Springfield, 2 Pick. Rep. 394, and note. 
 Inhabitants of Manchester v. Inhabitants of Boston, 16 Mass. Rep. 230, 
 and M'llvaine v. Coxe's Lessee, 4 Cranch 209, 211.* But what is more 
 directly in point : it is expressly declared and acted upon, by the Supreme 
 Court of New York, in the case of Jackson v. White, 20 Johns. Rep. 
 313. It appears to me that there is sound sense and public policy in 
 this doctrine ; and there is no pretence to say, that it is incompatible 
 with the known law or general usages of nations. The case of Ainslie 
 V. Martin, 9 Mass. Rep. 454, proceeds upon the opposite doctrine ; but 
 that case stands alone, and is incompatible with pi'ior as well as subse- 
 quent decisions of the same Court ; and so it has been treated by Chan- 
 cellor Kent, in his learned commentaries. 2 Kent's Comm. 35, 52. 
 
 Another point, which necessarily arises in the present discussion, is, 
 whether a party, who, by operation of law, or by the express enactment 
 of the Legislature of a State, after the Declaration of Independence, 
 became a citizen of the State, could afterwards, by any act of his own, 
 flagrante bello, divest himself of such citizenship. It is clear, that 
 during the war ; however true it might be that the State by its own 
 declaration, or by his consent, might hold him to his allegiance as a 
 citizen, and absolve him from his former allegiance ; such declaration 
 or consent could be binding only between him and the State, and could 
 have no legal eifect upon the rights of the British crown. The king 
 might still claim to hold him to his former allegiance, and until an actual 
 renunciation on his part, according to the common law, he remained a 
 
 * See also Chase J. in Ware v. Hylton, 3 Dall. 225, 1 Peters's Condens. Eep. 
 199. Hebron v. Colchester, 5 Day's Eep. 169, 
 
Inglis v. The Sailor's Snug Harbor. 467 
 
 subject. He was, or might be held to be, bound ad utriusque fidem 
 regis. In an American court, we should be bound to consider him as 
 an American citizen only ; in a British court, he could, upon the same 
 principle, be held a British subject. Neutral nations would probably 
 treat him according to the side with which he acted at the time when 
 they were called upon to decide upon his rights. It might well be pre- 
 sumed, that from various motives, numbers would change sides during 
 the progress of the contest ; some because they were compulsively held 
 to allegiance, and others, again, from a sincere change of opinion. It 
 is historically true, that numbers did so change sides. The general doc- 
 trine asserted in the American courts, has been, that natives who were 
 not here at the Declaration of Independence, but were then, and for a 
 long while afterwards remained, under British protection, if they returned 
 before the treaty of peace, and were here at that period, were to be 
 deemed citizens. If they adhered to the British crown up to the time 
 of the treaty, they were deemed aliens ; some of the cases already re- 
 ferred to are full to this point, and particularly Kilham v. Ward, and 
 Gardner v. Ward. In respect to British subjects, not natives, who 
 joined us at any time during the war, and remained with us up to the 
 peace, a similar rule of deeming them citizens has been adopted. The 
 cases in 9 Mass. Rep. 454 ; 2 Pick. Rep. 394 ; and 5 Day Rep. 169, 
 are to this effect. The ground of this doctrine is, that each government 
 had a right to decide for itself who should be admitted or deemed citi- 
 zens ; that those who adhered to the States and to Great Britain, re- 
 spectively, were, by the respective governments, deemed members thereof; 
 and that the treaty of peace acted by necessary implication upon the 
 existing state of things, and fixed the final allegiance of the parties on 
 each side, as it was then, de facto. Hence the recognition on the part 
 of Great Britain of our independence, by the treaty of 1783, has always 
 been held by us as a complete renunciation on her part of any allegiance 
 of the then members of the States, whether natives or British born. 
 And the same doctrine has been in its fullest extent recognized in the 
 British courts, in the case of Thomas v. Acklam, 2 Barn. & Cress. 779. 
 Lord Chief-Justice Abbott, in delivering the opinion of the Court on 
 that occasion, said, that the declaration in the treaty, that the States were 
 free, sovereign, and independent States, was a declaration that the people 
 composing the State shall no longer be considered as subjects of the sove- 
 reign by whom such declaration is made. And in a subsequent case, 
 
468 Inglis v. The Sailoe's Snug Haebok. 
 
 Auohmuty v. Mulcaster, 8 Dowl. & Eyl. Eep. 593 ; S. C. 5 Barn. & 
 Cress. 771 ; the same Court held, that a native American, bom before 
 the Declaration of Independence, who adhered to the royal cause during 
 the war, still retained his allegiance, and was to be deemed, not an 
 American citizen, but a British subject. Mr. Justice Bajley, on that 
 occasion, said, " the king acknowledges the United States to be free, 
 sovereign, and independent States." "Who are made independent? 
 The States. Does not this mean the persons who, at that time (of the 
 treaty), composed the American States?" 8 Dowl. & Ryl. 603. Aad 
 again he added, " the treaty, etc., etc., made those persons who were at 
 that period of time adhering to the then American government or con- 
 stituted authorities, free of their allegiance to the crown of these king- 
 doms, and left them to adopt their allegiance to the new government." 
 
 In Kilham v. Ward, 2 Mass. Hep. 236, and Gardner v. Ward, 2 Mass. 
 Eep. 244, note, a lilie doctrine was avowed. • The language of the Court 
 there was, that by the treaty those who by their adherence and residence 
 had remained the subjects of the king of Great Britain on the one pai-t, 
 and those who by their adherence and residence were then the people of 
 the United States on the other part, were reciprocally discharged from 
 all opposing claims of allegiance and sovereignty. This doctrine appears 
 to me so rational and just, and founded upon such a clear principle of 
 reciprocity and public policy, that it is, I own, extremely difficult for 
 me to admit that the treaty does not indispensably require that interpre- 
 tation. It is true that the treaty contains no renunciation on our part, 
 of the allegiance of any of our citizens who had adhered to the British 
 CTOwn ; but the reason of the omission is obvious. Great Britain claimed 
 the allegiance of all the colonists as British subjects ; she renounced by 
 the treaty that claim as to all who then adhered to the American States. 
 We acquiesced in that result ; and must, in the absence of any stipula- 
 tion to the contrary, be deemed to admit the allegiance to have been re- 
 tained, of all whose allegiance was not expressly or impliedly renounced. 
 
 I am compelled, however, to admit the language of this Court in 
 M'llvaine v. Coxe^s Lessee, 4 Cranch 209, 214, leads to an opposite con- 
 clusion. There is no doubt that the treaty of peace does not ascertain 
 who are citizens on the one side, or subjects on the other. That is a 
 matter partly of law and partly of fact ; but when the fact is ascertained 
 that the party was de facto, at the time, under the allegiance of, aud 
 adhering to either government, he is to be treated as a subject of that 
 
Inglis v. The Sailor's Snug Haebob. 469 
 
 government, and as such, a party to the treaty. What right have the 
 American States to say that all persons shall be deemed citizens who, at 
 any time previous to the treaty, were deemed citizens under their laws ; 
 any more than Great Britain has, to hold all persons subjects whom she 
 had previously deemed subjects, in virtue of their original allegiance. 
 Each party must, I think, be presumed to deal with the other upon the 
 footing of equal rights as to allegiance, and to act upon the status in quo 
 the treaty found them. If, however, the case of M'Bvaine v. Coxe's 
 Lessee is to be deemed not an administration of local law, but of imi- 
 versal law and the interpretation of treaties, it overthrows the reasoning 
 for which I contend. I cannot "admit its universality of application; 
 on the contrary, sitting in Massachusetts, I should feel myself con- 
 strained to re-examine the doctiine as applicable to that State, upon a 
 point which afiPected her political rights and her soil, and which the 
 Courts of the State had the most ample jm-isdiction to entertain and 
 determine. In New York tl^ere is no decision either way ; and it seems 
 to me, therefore, that it is fit to be re-examined upon principle. I adopt 
 the suggestion of Lord Chief-Justice Abbott in Doe ex d. Thomas v. 
 Acldani, 2 Barn. & Cress. 798, that the inconvenience that must ensue 
 from considering any large mass of the inhabitants of a country to be 
 at once citizens and subjects of two distinct and independent States, and 
 owing allegiance to each ; would, if the language of the treaty could 
 admit of any doubt of its effect, be of great weight toward the removal 
 of that doubt. The treaty ought to be so construed, as that each gov- 
 ernment should be finally deemed entitled to the allegiance of those who 
 were at that time adhering to it.* 
 
 With these principles in view, let us now come to the consideration 
 of the question of alienage in the present case. That the father and 
 mother of the demandant were British born subjects, is admitted. If 
 he was born before the 4th of July, 1776, it is as clear that he was born 
 a British subject. If he was born after the 4th of July, 1776, and 
 before the 15th of September, 1776, he was born an American citizen, 
 whether his parents were at the time of his birth British subjects or 
 American citizens. Nothing is better settled at the common law than 
 the doctrine that the children even of aliens born in a country, while 
 the parents are resident there under the protection of the government. 
 
 * See also 1 Wood. Lect. 382. Dane's Abridg., ch. 131, art. 7. 
 40 
 
470 Inglis v. The Sailoe's Snug Harbor. 
 
 and owing a temporary allegiance thereto, are subjects by birth. If he 
 was born after the 15th of September, 1776, and his parents did not 
 elect to become members of the State of New York, but adhered to their 
 native allegiance at the time of his birth, then he was born a British 
 subject. If he was in either way born a British subject, then he is to 
 be deemed an alien, and incapable to take the land in controversy by 
 descent ; unless he had become at the time of the descent cast an American 
 citizen, by some act sufficient in point of law to work such a change of 
 allegiance. 
 
 His parents being born British subjects, it is incumbent upon those 
 who set up the defence, to establish, tBat having a right of choice, his 
 parent? elected to become American citizens. This is attempted to be 
 deduced by operation of law, from certain resolutions and acts of the 
 government de facto of the State of New York. As early as the 15th 
 of September, 1776, his parents joined the British troops in New York, 
 and remained under the protection of the British arms during the war. 
 At the close of the war his father withdrew (his mother being then dead) 
 with the British authorities ; and he continued ever afterwards under 
 the protection and allegiance, de facto, of the British crown. So far as 
 the acts, therefore, of the parents, manifested by a virtual adherence to 
 the British side, go, they negative any intentional change of native 
 allegiance. But it is said that they were bound to make their election 
 in a reasonable time. I agree to this ; but the effect of the omission to 
 manifest an election in favor of the State of New York, was in my judg- 
 ment decisive of their adhering to the allegiance of their native sove- 
 reign. But if it were otherwise, if the election to remain British sub- 
 jects must be affirmatively established ; still, I think, in point of law, 
 under all the circumstances, an election by taking the British protection 
 in September, 1776, was within a reasonable time ; and the case of Jack- 
 son V. White, 20 Johns. Rep. 313, in my judgment warrants such a con- 
 clusion. 
 
 But it is said that the ordinance of the 16th of July, 1776, which 
 declares " that all persons abiding within the State of New York, and 
 deriving protection from the laws of the same, owe allegiance to the 
 said laws, and are members of the State," by necessary conclusion and 
 operation of law made the parents of the demandant American citizens ; 
 because they were then abiding within the State and deriving protection 
 from its laws. Now, assuming that the convention of the State of New 
 
Inglis v. Thk Sailoe's Snug Haebor. 471 
 
 York had plenary powers for this pui-pose, so as to bind a British sub- 
 ject not born in New York to allegiance to the State, from the mere 
 fact of his local residence at the time (a proposition that is encumbered 
 with many difficulties), the term " abiding," as here used, has never been 
 construed to exclude the right of election of persons who were inhabitants 
 at that period, to adhere to the old, or contract a new allegiance. The 
 case of Jaehson v. White, 20 Johns. Eep. 313, is decisive of that. 
 
 We must then give a rational interpretation to the word, consistent 
 with the rights of parties, and the accompanying language of the ordi- 
 nance. By " abiding " in the ordinance is meant not merely present 
 inhabitants, but present inhabitancy coupled with an intention of per- 
 manent residence. This is apparent from the next clause of the ordi- 
 nance, where it is declared, " that all persons passing through, visiting, 
 or making a tmiporary stay in the State being entitled to the protection 
 of the laws during the time of such passage, visitation, or temporary 
 stay, owe during the same allegiance thereto." Their " temporary stay" 
 is manifestly used in contradiction to " abiding," and shows that the 
 latter means permanent intentional residence. So Mr. Chief-Justice 
 Spencer, in Jackson v. White, 20 Johns. Rep. 313, 326, considered it. 
 He says, " residence in this State prior to that event (the Declaration of 
 Independence) imported nothing as regards the election or determination 
 of such residents to adhere to the old or adopt the new government. 
 The temporary stay mentioned in the resolution of the convention passed 
 only twelve days after the Declaration of Independence by Congress, 
 and within five days after the adoption of the declaration by the con- 
 vention of this State, clearly imports, that such persons who were resi- 
 dent here without any intention of permanent residence, were not to be 
 regarded as members of the State ; " they had a right to a reasonable 
 time therefore, after the ordinance was passed, to decide whether, with 
 reference to the new government, they would adopt a permanent resi- 
 dence in the State, and to become members thereof. 
 
 A similar declaration is to be found in the statute of 1777 of Massa- 
 chusetts, and there the term " abiding " has been construed not only to 
 apply to an intention of permanent residence, but of a prospective 
 abiding.* The reasoning in the Commonwealth v. Chapman, 1 Dall. 
 Kep. 53, persuasively conducts us to a similar conclusion. This ordi- 
 
 * See opinioa in note. 2 Pick. Eep. 394, 395. 
 
472 Inglis v. The Sailor's Snug Haebor. 
 
 nance, then, cannot be deemed to dissolve the native allegiance of the 
 parents of the demandant, unless it shall be clearly established that they 
 intended a permanent residence in New York, and to become members 
 of the State under the new government, anterior to their assuming 
 British protection in September, 1776. 
 
 But even admitting that his parents did elect to become citizens of 
 New York before the 15th of September, 1776, still I am of opinion 
 that the demandant, if he was born .after the British took possession of 
 the city of New York, in September, 1776, while his parents were under 
 the protection of, and adhering to the British government de facto, was 
 to all intents and purposes an alien born. To constitute a citizen, the 
 party must be born not only within the territory, but within the ligeance 
 of the government. This is clear from the whole reasoning in Calvin's 
 Case, 7 Co. 6, a. 18, a. b.* Now in no just sense can the demandant 
 be deemed born within the ligeance of the State of New York, if, at 
 the time of his birth, his parents were in a territory then occupied by 
 her enemies and adhering to them as subjects, de facto, in virtue of their 
 original allegiance. 
 
 The act of the 22d of October, 1779, which confiscates the estate of 
 the parents of the demandant, throws great light upon this part of the 
 subject ; it demonstrates that they were deemed to be then adhering to 
 the British, the enemies of the State. It begins with a preamble re- 
 citing that " divers persons holding or claiming property within this 
 State have voluntarily been adherent to the said king (of Great Britain), 
 his fleets and armies, enemies to this State and the said other United 
 States, with intent to subvert the government and liberties of this State, 
 and of the said other United States, and to bring the same into subjec- 
 tion to the crown of Great Britain ; by reason whereof the said persons 
 have severally justly forfeited all right to the protection of this State, 
 and to the benefit of the laws under which such property is held or 
 claimed." It further declares that the public safety requires " that the 
 most notorious ofienders should be immediately hereby convicted and 
 attainted of the offence aforesaid, in order to work a forfeiture of their 
 respective estates, and invest the same in the people of this State." It 
 then enacts, " that John Murray, earl of Dunmore, etc., etc., Charles 
 Inglis of the said city (of New York), and Margaret his wife (the parents 
 
 * See also Com. Dig. Alien. Bac. Abridg. Alien. A. 
 
Inglis v. The Sailor's Snug Harbor. 473 
 
 of the demandant), etc., etc., be, and each of them are hereby severally 
 declared to be ipso facto convicted and attainted of the offence aforesaid ; " 
 and then declares their estates forfeited. In the second section it enacts 
 that the same persons " shall be and hereby are declared to be forever 
 banished from this State, and each and every of them, who shall at any 
 time hereafter be found in any part of this State, shall be and hereby is 
 adjudged and declared guilty of felony, and shall suffer death." 
 
 This act deserves an attentive consideration on several accounts. It 
 is apparent, upon its face, that it is not an act which purports to be an 
 attainder of citizens of the State only, on account of their treason in 
 adhering to the public enemies ; for it embraces persons who never were, 
 nor were pretended to be citizens ; neither does it affect to confiscate the 
 property on account of the alienage of the persons named therein, by 
 way of escheat. The persons described as subjects of attainder are, 
 " persons holding or claiming property within this State," which descrip- 
 tion equally applies to citizens and British subjects, and may include 
 foreigners of other nations. It seems, indeed, a summary exercise of 
 the ultimate power of sovereignty, in inflicting the penalty of confisca- 
 tion upon the property of enemies, jwe belli. But it demonstrates clearly 
 the sense of the Legislature, that the persons named therein were at that 
 time voluntary adherents to the British crown, and enemies of the State ; 
 and it affords a very cogent presumption of such adherence from the 
 time that they first came under British protection. It farther denounces 
 such persons as enemies or traitors, who have forfeited all right to the 
 protection of the State, and punishes them by a sentence of perpetual 
 banishment, and makes their residence within the State a capital felony. 
 
 Such a sentence, under such circumstances, must be deemed on the 
 part of the State, a perpetual renunciation of the allegiance of those 
 persons, and to deprive them of the rights, and to absolve them from 
 the duties of citizens. There can be no allegiance due where the sove- 
 reign expressly denies all protection, and compels the party to a pei-petual 
 exile. In this view of the matter, the demandant's parents were by the 
 sovereign act of the State itself absolved from all future allegiance, even 
 if they had antecedently owed any to the State. In this state of things, 
 the treaty of 1783 found the father adhering to the British crown as a 
 native-born subject. 
 
 What then is the operation of the treaty of 1783 ? It is clear to my 
 mind that the father of the demandant must be considered as a party 
 40* 
 
474 Inglis v. The Sailor's Snug Haeboe. 
 
 to that treaty on the British side. I say this upon the presumption, 
 which is not denied, that he was then adhering to the British crown ; 
 and that he was there recognized and protected as a subject owing al- 
 legiance to the British crown. In this state of things the treaty must, 
 upon the grounds which I have already stated, be deemed to operate as 
 an admission that he was in future to owe no allegiance to the State of 
 New York, but he was to be deemed a British subject. 
 
 The question then arises as to what was the operation of the treaty 
 upon his son, the demandant, who was then an infant of tender years, 
 and incapable of any election on his own part. It appears to me, that 
 upon principles of public law, as well as of the common law, he must, 
 if born a British subject, be deemed to adhere to, and retain the national 
 allegiance of his parents, at the time of th^ treaty. Vattel considers 
 the general doctrine to be, that children generally acquire the national 
 character of their parents (Vattel, B. 1, ch. 19, sec. 212, 219); and it 
 is certain, both by the common law and the statute law of England, 
 that the demandant would be deemed a British subject. The argument 
 itself assumes that the demandant now acts officially in that character, 
 and that ever since his arrival of age he has adhered to his British al- 
 legiance. 
 
 Upon the whole, upon the point of alienage as presented in the case, 
 the following are my opinions under the various postures of the facts : 
 
 1. That if the demandant was born before the 4th of July, 1776, he 
 was born a British subjecjt. 
 
 2. That if he was born after the 4th of July, 1776, and before the 
 15th of September, 1776, he was born an American citizen; and that 
 it makes no diiference in this respect, whether or not his parents had at 
 the time of his birth, elected to become citizens of the State of New 
 York, by manifesting an intention of becoming permanently members 
 thereof, in the sense which I have endeavored to explain. 
 
 3. That if the demandant was born after the 16th of September, 
 1776, when the British took possession of New York, and while his 
 parents were there residing under the protection of, and adhering to the 
 British crown as subjects, de facto, he was bom a British subject, even 
 though his parents had previously become citizens of the State of New 
 York. 
 
 4. That if the demandant was born after the 15th of September, 1776, 
 and could be deemed (as I cannot admit) a citizen of the State of New 
 
Inglis v. The Sailor's Snug Haeboe. 475 
 
 York in virtue of his parents having, before the time of his birth, elected 
 to become citizens of that State, still his national character was derivative 
 from his parents, and was under the peculiar circumstances of this case, 
 liable to be changed during the Revolutionary War ; and that if his 
 parents reverted to their original chai-acter as British subjects, and adhered 
 to the British crown, his allegiance was finally fixed with theirs by the 
 treaty of peace. 
 
 5. That it was competent for the British government to insist, at all 
 times during the Revolutionary War, upon retaining the allegiance of 
 all persons who were born or became subjects; and for the American 
 States to insist in the like manner. But that the treaty of peace of 1783 
 released all persons from any other allegiance than that of the party to 
 whom they then adhered, and under whose allegiance they were then, 
 de facto, found. That if the demandant's father was at that time so 
 adhering, it was a final settlement of his allegiance on the British side ; 
 and that the demandant, unless born after the 4th of July, 1776, and 
 before the 15th of September, 1776, remained, to all intents and pur- 
 poses, a British subject. 
 
 6. That if the case of M'llvaine v. Coxe^s Lessee, 4 Cranch 209, should 
 be thought to have overturned this doctrine so that it is no longer re- 
 examinable, still that in this case the parents had a right to elect to 
 which government they would adhere ; and that a period up to the 15th 
 of September, 1776, was not an unreasonable time for that purpose ; and 
 that unless some prior, clear act of election could be shown, the adherence 
 to the British from the 15th of September, to the close of the war, af- 
 fordfed strong evidence to repel the presumption of any prior election to 
 become citizens, arising from the fact of abiding in the State up to that 
 period. 
 
 From these views, meaning to be understood to leave any disputed 
 facts open for inquiry (although no other facts seem in dispute, except 
 the actual period of the birth of the demandant), my judgment would 
 be that the demandant was, unless he was born between the 4th of July, 
 and the 15th of September, 1776, an alien at the time of the treaty of 
 ' 1783, and has ever since remained so. I agree to the doctrine in Daw- 
 son's Lessee v. Godfrey, 4 Cranch 321, that the right to inherit depends 
 upon the existing state of allegiance at the time of the descent cast, and 
 not merely upon a community of allegiance at the time of birth ; and 
 the same doctrine is recognized in the fullest manner in the British 
 
476 Inglis v. The Sailoe's Snug Haeboe. 
 
 courts.* If the demandant then was an alien at the time of the descent 
 cast, he is incapable to inherit the estate in point of law. 
 
 But it has been suggested as matter of doubt, whether alienage of the 
 demandant can be taken advantage of or rejected on the mise joined. 
 This objection cannot in my opinion be maintained ; it is laid down in 
 the books that everything in bar upon the merits may be given in evi- 
 dence under the mise, except collateral warranty ; so it is said in Brooks's 
 Ab. Droit 48 ; and Booth on Real Actions 112. That also seems to 
 have been the opinion of the Court in Tyssen v. Clarice, 2 Wils. Rep. 
 541. Whether the proposition can be maintained in its general latitude, 
 it is unnecessary now to consider ; but it is certainly necessary for the 
 demandant to prove his title as set forth in the writ. If he claims by 
 descent from an ancestor who was seized, he must show that he is heir, 
 and capable to take by descent. The seizin of the ancestor is nothing 
 without establishing his heirship. The cases of Green v. lAter, 8 Cranch 
 229, and Green v. Wathins, 7 Wheat. Rep. 28, are decisive that in a 
 writ of right the title and mere right of each party are in issue ; and 
 each may establish that the title of the other wholly fails. If, there- 
 fore, the demandant has no title by descent, the tenant may show it ; for 
 it goes to the very foundation of his claim. 
 
 In this connection it may be well to dispose of another objection, 
 which was much pressed at the argument. It is this : the demandant 
 in his count alleges the seizin of Robert R. Randall, and makes title by 
 descent to the premises .as his next collateral heir on the part of his 
 mother. At the death of Robert R. Randall, he left a brother Paul R. 
 Randall, and a sister, Catherine Brewerton, on whom the alleged fight 
 to the lands descended in moieties, and through whom, (though not from 
 whom) the demandant deduces his title by descent, they having died 
 without issue. The tenants offered evidence to establish that Catherine 
 Brewerton had disposed of her right in the premises by will ; and that 
 the right of Paul R. Randall also had been transferred during his life- 
 time. Now the objection is, that this evidence is inadmissible, because 
 it is an attempt to set up the title of third persons, to defeat a recoveiy 
 in a writ of right, which is inadmissible. The cases of Green v. Liter,' 
 8 Cranch 229, and Green v. WatUns, 1 Wheat. Rep. 28, have been re- 
 lied on to support this objection. Nothing is better settled in this Court 
 
 * Doe ex dem. Thomas v. Acklam, 2 Barn. & Cress. 779. 
 
Inglis v. The Sailor's Snug Haeboe. 477 
 
 than the doctrine that a better title in third persons cannot be set up to 
 defeat a recovery in a writ of right, because that writ brings into con- 
 troversy and comparison the titles of the parties only ; but it is perfectly 
 consistent with this doctrine, that the tenant may show that the title set 
 up by the demandant is in fact no title at all. One material allegation 
 in the present count is its seizin of Robert R. Randall the ancestor ; and 
 this seizin is admitted, and indeed constitutes a part of the title of both 
 parties in the present case. Another material allegation is, that the 
 right to the demanded premises descended to the demandant as heir. 
 Xow, it is clear upon the general principles of pleading, that what is 
 essential to the demandant's right, as stated in his count, must, when 
 that right is denied by the issue, be proved by the demandant, and may 
 be disproved by the tenant. If, therefore, the demandant be incapable 
 of taking as heir by descent, although there be a rigU, that may be 
 shown by the tenant ; as if he be an alien, because it defeats the asserted 
 descent of the title. On the other hand, if the heirship be admitted, 
 and the right was parted with by the ancestor, or by any other person, 
 upon whom it intermediately devolved before it could reach the de- 
 mandant, that, for a better reason, may be shown, because it shows that 
 no right or title descended at all. Both are necessary to establish the 
 demandant's claim ; there must be a right or title subsisting, capable of 
 descent, and a capacity in the demandant to take as heir. If the ancestor 
 has actually parted with his whole right and title in the premises by a 
 legal conveyance, how can it be said that there remains any descendible 
 right in him ? If his right has been parted with by any intermediate 
 heir by a legal conveyance, how can it be said to have devolved upon 
 the demandant ? The true and real distinction is this : if the demandant 
 shows any right, as stated in his count to have descended to him from 
 his ancestor, the tenant cannot show that there is a better right subsist- 
 ing in a third person, under whom he does not claim, for that does not 
 disprove the title of the demandant as asserted in his writ ; and if the 
 demandant's title, such as it is, is better than the tenant's, then the de- 
 mandant ought to recover ; but the tenant may show that the demandant 
 has no right whatsoever by descent, for the possession of the tenant is 
 sufficient against any person who does not show any right, or a better 
 right. And this, as I understand it, is the doctrine in Green v. Watldns, 
 7 Wheat. Rep. 28. Here, title in third persons is offered, not to prove 
 that there is a better outstanding title, but that no right whatsoever 
 
478 Inglis v. The Sailor's Snug Harbor. 
 
 dascended to the demandant, as he claims in his count. It seems to me 
 that it is clearly admissible. 
 
 The next point is whether the will of Catherine Brewerton was suf- 
 ficient to pass her right and interest in the premises in question, so as to 
 defeat the demandant in any respect ; the premises being at the date of 
 the will, and ever since, held adversely by the tenants in the suit. 
 
 If this point were to be decided with reference purely to the common 
 law of England, there might be some reasons for doubt. The question 
 whether a right of entry was under the British statute of wills devisable, 
 seems never to have been directly decided until a recent period. There 
 is indeed to be found in prior cases, many dicta going to affirm the doc- 
 trine that such a right of entry is not devisable. Such seems to have 
 been the opinion of Lord Holt in Bunker v. Cook, 11 Mod. R. 122, and 
 of Lord Eldon in Attorney- General v. Vigor, 8 Ves. 282, as well as of 
 other judges in former times, whose dicta are collected and commented 
 on in Goodright v. Forrester, 8 East's Rep. 552, 566, and 1 Taunt. Rep. 
 604.* There are also dicta the other way; and at all events there is 
 reasoning which leads to the conclusion, that in modern times the judges 
 have been disposed to give a far more liberal construction to the statutes, 
 and to hold that whatever is descendible is devisable. The cases of 
 Jones V. Moe, 3 Term. Rep. 88, and Goodtitle d. GurnaU v. Wood, 
 Willes's Rep. 211, 3 Term. Rep. 94, by Lord Kenyon, are most mate- 
 rial. In Goodright v. Forrester, 8 East's Rep. 552, the Court of King's 
 Bench held a right of entry not devisable. But when that case came 
 before the Court of the Exchequer Chamber in Error, Lord Chief-Jus- 
 tice Mansfield very much doubted that point, and the case was finally 
 decided on another. But it is the less necessary to consider this question 
 upon the English authorities, because it has undergone an express ad- 
 judication in the State of New York, upon the construction of their own 
 statute of wills. The statute of New York enacts that any person hav- 
 ing an estate of inheritance in lands, tenements, and hereditaments, shall 
 have a right to devise them. In Jackson v. Varick, 7 Cowen's Rep. 
 238, the Supreme Court of New York, upon very full consideration, 
 held, that under this statute a right of entry being an hereditament, 
 was devisable. And this Court in Waring v. Jackson, 1 Peters's Rep. 
 571, understood it to be the settled rule in that State that an adverse 
 
 * See also Com. Dig. Devise, M. 
 
Inglis v. The Sailor's Snug Harbor. 479 
 
 possession did not prevent the passing the property by devise. This 
 then being a point of local law, upon the construction of a statute of 
 the State, according to the uniform course of this Court in cases of that 
 nature we should hold it decisive, whatever original doubts might other- 
 wise have surrounded it. But as one, I confess myself well satisfied 
 with that decision upon principle. It is rational and convenient ; and 
 if I should have felt difficulty in arriving at it through the authorities, 
 I should not be inclined to disturb it when made. 
 
 It has been said that the present case differs from that in 7 Cowen's 
 Rep. 238 in this, that the demandant claims through, but not under Mrs. 
 Brewerton, not as her heir, but as heir of Robert R. Randall ; and that 
 the estate was not descendible to her heirs according to the known prin- 
 ciples of the common law, as she was never seized of the premises, but 
 to Robert's heirs, as the person last seized. That is true ; but it does 
 not alter the application of the principle of law. If Mrs. Brewerton 
 had been possessed of a reversion by descent from Robert R. Randall, 
 and she had died before the life estate fell in, it would not have gone to 
 her heirs, but to his. And yet there is no doubt that she might grant 
 such a reversion, or devise it, and it would pass by her will to the devisee, 
 and thus interrupt the descent. So, if Mrs. Brewerton had a right of 
 entry in the premises, and she could devise it, it is of no consequence 
 that it would not, if undevised, have passed to her heirs ; for having 
 the Jits disponendi, when she exercises it it passes her right to her devisee, 
 and so interrupts the descent to the heirs of Robert R. Randall. It ap- 
 pears to me, therefore, that as to the moiety of Mrs. Brewerton it passed 
 under her will, and that the demandant, in any view of his claim, has 
 no title to a moiety of the demanded premises. A right of entry may 
 well pass under the devise of an hereditament.* 
 
 The next question is, whether the proceedings against Paul R. Ran- 
 dall as an absent and absconding debtor passed his right or interest to 
 the other moiety in the lands in question to, and vested the same in the 
 trustees appointed under the same proceedings, so as to defeat the de- 
 mandant in any respect. 
 
 The answer must depend upon the true construction of the abscond- 
 ing debtor acts of 1786 and 1801, as compared with those proceedings. 
 At the time of those proceedings, the premises were in the adverse pos- 
 
 * See Coffin v. Smith, 2 H. Bl. 444. 
 
480 Inglis v. Thk Sailor's Snug Haebob. 
 
 session of the tenants ; and consequently Paul R. Randall had only a 
 right of entry. And the question is, whether that right of entry passed 
 by the statutes to the trustees ; and if so, whether it did not by operation 
 of law revest in him after all these proceedings were functi officio, his 
 debts being paid, and the surplus paid over to him. 
 
 At the common law a right of entry is clearly not grantable or as- 
 signable. The party has, in the sense of the common law, no estate in 
 lands of which he is disseized ; but his estate is said to be turned to a 
 right, and can be recoverable only by an entry or an action. In the 
 meantime he has not any estate in the lands, but he has merely the right 
 to the estate. For this docti'ine it is necessary to do no more than to 
 refer to Littleton, sec. 347 ; Co. Litt. 214 and 345, a. b. ; Preston on , 
 Estates 20, and Com. Digest, Assignment, C. 1, 2, 3, and Grant, D.* 
 Unless it shall appear that the common law has been differently con- 
 strued in New York, or altered by some local statute, the same rule 
 must be presumed to prevail there ; for, by the constitution of that State, 
 the common law forms the basis of its jurisprudence. No case has been 
 cited in which the rule of the common law on this subject has been 
 overturned, or in which it has been decided that the word " estate " in- 
 cludes a right of entry, propria vigore. 
 
 But it is said that by the law of New York a right of entry is attach- 
 able, and may be taken and sold on execution ; and that an attachment 
 under the absconding debtor acts of 1786 and 1801, is deemed analogous 
 to an execution.f It may, doubtless, well be so deemed in a general 
 sense ; but it by no means necessarily follows that because there is such 
 an analogy, therefore, whatever may be taken in execution may be taken 
 on such attachment, or, e converso. The subject of levies under execution, 
 is expressly provided for by the statute of New York of the 31st of 
 March, 1801 ; and what effects or estate may be taken in execution de- 
 pends upon the true construction of the terms of that act. It declares 
 that " all the lands, tenements, and real estate " of every debtor shall be 
 liable to be sold upon " execution," etc., for the payment of any judg- 
 ment against him for debt or damages. "What has been the judicial con- 
 struction of these words in this act, whether they include a right of entiy, 
 does not, as far as my researches extend, appear ever to have been de- 
 cided. It is indeed suggested by Mr. Justice Woodworth, in delivering 
 
 * See Coffin v. Smith, 2 H. Bl. 444. 
 
 t Matter of Smith, 16 Johns. Rep. 102. 
 
Inglis v. The Sailor's Snug Haebok. 481 
 
 the opinion of the Court in Jackson v. Varick, 7 Cowen's Rep. 238, 244, 
 that the reasonable construction is, that it includes such a right ; but the 
 point was not then before the Court, and he does not treat it as a point 
 settled by adjudication. The words to which he refers in another part 
 of the act, giving the form of the execution (sec. 9), in which it is con- 
 fined to lands and tenements ichereof the debtor was seized on the day 
 when the same land became liable to the debt (by the judgment), would 
 rather incline one to a different conclusion. And it is certain that under 
 the statute of Westminster 2, ch. 18, subjecting lands to execution, lands 
 of which the debtor is disseized at the time of the judgment cannot be 
 taken in execution.* Be this as it may, it is certain that in New York 
 the process upon executions, and under the absconding debtor act are 
 not co-extensive in their reach. A judgment is not a lien upon a mere 
 equity ; and such an equity (not being an equitable estate under the 
 statute of uses of 1787, sec. 4), is not an interest which can be sold on 
 execution. And choses in action do not appear to be within the scope 
 of the act respecting executions; for the language confines it to "goods 
 and chattels." Yet choses in action by the express terms of the abscond- 
 ing debtor acts pass under the attachment ; and there are various other 
 interests which may well pass under these acts, which yet are not liable 
 to be taken under a common execution. Several cases illustrative of 
 this position, will be found collected in Mr. Johnson's Digest, title Exe- 
 cution 2.* 
 
 It appears to me, then, that the true mode, by which we are to ascer- 
 tain whether a right of entry passes under the absconding debtor acts, 
 is not by any forced analogy to the case of common executions, but by 
 a just interpretation of the terms of the act themselves. The act of 
 1801 is in substance a revision of the act of 1786 ; no material distinc- 
 tion between them, applicable to the case before the Court, has been 
 pointed out at the argument ; and they may therefore be treated as sub- 
 stantially the same. 
 
 The act of 1801 begins (section 1) by providing for cases of abscond- 
 ing and absent debtors, and upon proof thereof, provides that a warrant 
 shall issue to tho sheriff commanding him to attach and safely keep " all 
 the estate real and personal of such debtor," and make and return a true 
 inventory thereof. Goods, effects, and choses in action, are expressly 
 
 * 1 EoU. Abridg. 888, Com. Dig. Execution, c. 14. 
 41 2F 
 
482 Inglis v. The Sailor's Snug Harbor. 
 
 declared to be within the reach of the act. It afterwards proceeds to 
 provide for the appointment of trustees, and authorizes them (section 2) 
 " to take into their hands all the estate of such debtor, whether attached 
 as aforesaid, or afterwards discovered by them, and all books, vouchers, 
 and papers, relating to the same ; and the said trustees, from their ap- 
 pointments, shall be deemed vested ioith all the estate of sueh debtor, and 
 shall be oapable to sue for and recover the same ; and all debts and things 
 in action due or belonging to such debtor, and all the estate attached as 
 aforesaid, shall be by the sheriif, etc., delivered to the said trustees ; and 
 the trustees, or any two of them, shall sell at public vendue after four- 
 teen days, previous notice of the time, and place, all the estate, real and 
 personal of such debtor as shall come to their hands, and deeds and bills 
 of sale for the same make and execute, which deeds and bills of sale 
 shall be as valid as if made by such debtor," etc. The act afterwards 
 goes on to provide for the distribution of the proceeds of the sales among 
 the creditors, and then declares, that " the surplus, if any, after all just 
 debts and legal charges as aforesaid are satisfied, shall be paid to such 
 debtor or his legal representatives." There is no provision in the act as 
 to what shall be done in respect to any property which never came to 
 the hands of the trustees, nor of any property remaining unsold by them 
 when all the debts were satisfied ; and the omission may easily be ac- 
 counted for from the general policy of the act ; for the language is, that 
 the trustees shall sell all the estate which comes to their hands. If the 
 point were material I should strongly incline to the opinion, that the act 
 did not absolutely divest all right and title out of the debtor of any of 
 his estate, tohich should not come to the hands of the trustees and be sold 
 by them. But whether this be so or not, I am clearly of opinion that 
 when once all the purposes of the trust are satisfied, and all the debts 
 are paid ; if the trustees have any legal interest or title vested in them 
 in the estate of the debtor remaining unsold, it is subject to a resulting 
 use for the benefit of the debtor, in the same manner as the sui-plus of 
 the property sold. Suppose, before the sale, all the debts should be 
 paid, must the trustees go on to sell ? Suppose all the debts are paid 
 by a sale merely of the personal estate, is not their trust extinguished ? 
 The trustees take all the estate in the first place for the benefit of the 
 creditors, and in the next place, they being paid, for the benefit of the 
 debtor. Subject to the rights of the creditors, the use is in him ; and 
 by operation of law the estate revests in him, as soon as the trust for 
 
Inglis v. The Sailor's Snug Haebor. 483 
 
 the creditors is exhausted or extinguished. This seems to me a reason- 
 able, if not a necessary construction of the act ; for it has provided for 
 no express reconveyance by the trustees to the debtor, in any case what- 
 soever. It certainly could not intend to deprive him of his inheritance 
 after all his debts were paid. And it is but just to give the act a con- 
 struction favorable to the debtor, when all its other objects are accom- 
 plished. In the present case the whole proceedings afford a strong 
 presumption that all the debts of P. R. Randall have been paid ; and 
 none are pretended to exist. His right of entry in the demanded pre- 
 mises was never sold by the trustees ; and even if it vested in them, it 
 afterwards by operation of law revested in him, if the trusts were all 
 defunct and satisfied. But I go farther, and incline to the opinion that 
 his right of entry in the demanded premises did not pass to the trustees 
 under either of the attachments. The language of the acts of 1786 and 
 1801 is indeed quite broad, and extends to all the " estate real and per- 
 sonal " of the debtor. But a right of entry is not, as has been already 
 shown, an " estate " in any just and legal sense of the word. Neither 
 is it a " thing in action ; " for it does not depend upon any right to sue, 
 but may be enforced by a mere entry. Indeed, a right of action, and 
 a right of entry, are often used in contradistinction to each other. 
 
 The case of Smith, etc., v. Coffin, 2 H. Bl. 444, turns altogether upon 
 other considerations, and upon the interpretation of the words of the 
 English bankrupt laws. Words of a very broad import are used in 
 those laws ; and the policy of them is far more extensive than that 
 which governs the laws of New York, now under construction. A con- 
 struction might be properly adopted in respect to the bankrupt laws, 
 which would not apply to the absconding debtor acts of New York. 
 The general policy of the common law is to discourage the grant or sale 
 of mere rights of entry and action, with a view to suppress litigation. 
 This policy spreads itself over many important interests; and is so 
 fundamental, that nothing but a very clear expression of the legislative 
 intention ought in my judgment to overthrow it. No such intention is 
 to be found in the acts of 1786 and 1801. Can it be reasonably pre- 
 sumed that the Legislature meant to authorize the sale of a right of 
 entry to a purchaser ? If not, was it the intention to enable the trus- 
 tees to reduce the right into possession, and afterwards to sell the same ? 
 I think the former was manifestly not the intention of the Legislature ; 
 and T found myself on the veiy words of the acts. The trustees are to 
 
484 Inglis v. The Sailor's Snug Haeboe. 
 
 sell, not all the estate of the debtor, but all the estate real and personal, 
 " as shall come to their hands ; " that is, as I construe the words, such 
 as they shall reduce into possession ; so that the estate may bring its un- 
 controverted value. But for the reasons already stated, I incline also to 
 the opinion, that it was not the intention of the Legislature to pass the 
 right of entry to the trustees, so that they might be enabled to reduce 
 it into possession. 
 
 But supposing it to be otherwise ; still it appears to me there is much 
 reason to contend that the trustees, if they took the right of entry at all, 
 took it sub modo, and exactly as Paul R. Randall held it. The Legis- 
 lature did not intend to invest them with a better right than he had. 
 He had a right of entry into the estate vested in him by descent, and 
 he might perfect his estate by an actual entry during his lifetime. But 
 if he died without such entry, then the right to the estate devolved not 
 upon his own heir, but upon the next heir in the line of descent of 
 Robert R. Randall. In this view of the act, the trustees were bound, 
 then, to reduce the right of Paul R. Randall into possession during his 
 lifetime, if they meant to perfect their title thereto. Not having done 
 so, the title devolved upon the next heir who claimed, not through them, 
 but from the ancestor from whom Paul R. Randall took it. This, how- 
 ever, is not the main ground on which I rely, though it fortifies some 
 of the considerations already mentioned. The main ground on which 
 I rely is, that whatever construction of the act may be adopted in other 
 respects, as soon as all the trusts of the assignment are executed, there 
 arises a resulting use to the debtor, which, by operation of law, will re- 
 vest all the unsold estate in him. 
 
 Upon the whole, my opinion is, that the proceedings against Paul R. 
 Randall did not pass his right or interest in the lands in question, so as 
 to defeat the demandant in any respect ; but if they did, and all the 
 tmsts have been satisfied, there is a resulting use to him in the unsold 
 estate. 
 
 The next question is, whether, inasmuch as the count in the cause is 
 for the entire right in the premises, the demandant can recover a less 
 quantity than the entirety. 
 
 This is a question somewhat involved in technical learning, and there- 
 fore requires an accurate examination of the authorities. Reasoning 
 upon general principles and the analogies of the law, there would be 
 little difficulty in deciding it in the affirmative ; for it is deciding no 
 
Inglis v. The Sailor's Snug Harbor. 485 
 
 more than that he who has a right, shall recover according to his right, 
 so, always, that he does not recover more than he sues for. No injury- 
 is done to the tenant by allowing the demandant who sues for ten acres, 
 and shows a title only to one, to recover for the latter ; nor if he sues 
 for an entirety and shows title to a moiety, to recover for the latter. 
 And it is in furtherance of justice that he should so recover ; because it 
 prevents multiplicity of suits. For if his suit should abate for this 
 fault (and that is the only judgment which could be pronounced), he 
 would still be entitled to a new action for the part to which he had 
 shown title. The falsity of the former writ would constitute no bar. 
 
 Let us see, then, how the case stands upon authority. By the old 
 common law, if the writ of the demandant was falsified by his own 
 confession (for it is far from being certain that it was ever true, when 
 found by a verdict upon the merits, after the general issue joined),* as 
 to anything or part of a thing demanded in the writ, it abated for the 
 whole. If the matter did not appear on the face of the record, but was 
 to be made out by facts dehors, then the tenant, if he meant to avail 
 himself of it, was compelled to do it by a plea in abatement. Thus if 
 he meant to avail himself of non-tenure of the whole, or a part, he 
 must plead it. But where, upon the whole record, the falsity of the 
 writ was apparent by confession of the party, there, although the tenant 
 had not pleaded in abatement, it was the duty of the Court, ex officio, 
 to abate the writ. 
 
 Now, at the common law, there are two sorts of writs in real actions. 
 In one the demand is in a general form, without specification of any 
 lands in particular. Thus in the writ of assize, the demand is that the 
 tenant " unjustly and without judgment hath disseized him of his free- 
 hold in C." t without any further description of the land. So in writs 
 of dower, the demand is of the demandant's " reasonable dower, which 
 falleth to her of the freehold, which was of A. her late husband in C, 
 whereof she hath nothing," % without more. The plaint or count is 
 less general, and specifies the particulars of the demand, as a messuage, 
 ten acres of land, etc. § In the other sort of writs, the writ itself is as 
 
 * See Plowden 424, 6. Hobart's Kep. 282, 6. Fitz. Abridg. Breve 272. 
 9 Hen. 6, 54. 11 Co. 45. Theol. Dig. Lib. 16, eh. 5. 
 t Booth on Real Actions 210. Pitz. N. B. 177. 
 t 2 Saund. Bep. 43. Booth on Real Actions 166. Pitz. N. B. 147. 
 i Com. Dio-. Assize, B. 11. Booth on Real Actions 212, and note. 
 41* 
 
486 Inglis v. The Sailor's Snug Harboe. 
 
 special as the count. Such is the case of all precipes quod reddat, such 
 as writs of right, and writs of entry, etc., where the demand is of a cer- 
 tain messuage, or ten acres of land, etc., etc., and the exigency of the 
 writ is that the said tenant should render the same to the demandant 
 without delay.* Now, it was upon this difference that a distinction took 
 place in the common law as to the right of the demandant to abridge 
 his demand. If the writ was special, he could not abridge his demand 
 in any case. If the writ was general, de libera tenemento, he might 
 abridge his demand at his pleasure, so always that he did not abridge it 
 of a moiety or portion, where he sued for the entirety of a thing ; as if 
 he sued for ten acres he might abridge it to five ; but if he sued for the 
 whole of a messuage, he could not abridge it to a moiety. This doc- 
 trine will be found at large in many cases ; but it is nowhere better 
 expounded than in the opinion of Mr. Justice Juyn (afterwards chief- 
 justice), in 14 Hen. 6, p. 3, 4. He said, "that. in all cases where the 
 writ is de libera tenemento generally, as in assize and writs of dower, 
 where the writ is of her reasonable dower, etc., the demandant may 
 abridge his plaint or demand ; and the reason is because although he 
 abridges some acres, yet the writ remains true as to the rest, it being 
 liberum tenementum still. But where a certain number of acres is de- 
 manded in the wi'it, as in a formedon, the demandant cannot abridge, 
 for he acknowledges his writ false ; and where a writ is acknowledged 
 to be false in part, it must abate it in the whole ; but if in an assize the 
 writ be, he unjustly disseized him de libera tenemento in A. and B., and 
 he would abridge his demand as to all in B. he shall not abridge ; for 
 his writ is false, which supposes him disseized of the tenement in A. 
 and B." As to this last position there is some difference in the au- 
 thorities; but the general position is unquestionable law.f But this 
 doctrine even in relation to assizes was of little value to the demandant 
 in many cases, because it stopped short of the most common sources of 
 mistake. If, therefore, he counted against one as tenant of the whale, 
 and he pleaded non-tenure as to part, or joint tenancy, etc., and it ap- 
 peared by confession or otherwise, that the plea was true, the writ abated 
 
 * Fitz. N. B. 1, 5, 191. Booth Eeal Actions 1, 83, 88, 91, 172. 
 
 t See Com. Dig. Abridg. A. 2 Saund. Eep. 44, and note 4. Glib. Com. 
 PI. 199, 201, 202, 203. Brooks, tit. Abridg. 14 ISen. 6, p. 4. 9 Hen. 6, p. 
 42. 3 Lev. 68. Vin. tit. Abridg. Theol. Dig. Lib. 16, oh. 2. Bac. Abridg. 
 Abatement, L. 
 
Inglis v. The Sailor's Snug Harbor. 487 
 
 as to the whole, for the falsity of the writ was established iu this, that 
 the tenant was sued as the tenant of the whole, and was tenant only 
 of part. This mischief was cured by the statute 25 Edw. 3, ch. 16, 
 which provided, " that by the exception of non-tenure of parcel, no writ 
 shall be abated but for the quantity of the non-tenure, which is alleged."* 
 Still, however, many difficulties remained behind ; for if a party sued 
 for an entirety, as of ei manor, or a messuage, or one acre, and a bar was 
 pleaded as to a moiety, or part of the land put in view, etc., in the plaint, 
 the defendant could not abridge his plaint to the moiety left, since his 
 writ was for an entirety, and so far false : the distinction was nice, for 
 he might abridge his plaint from two or ten acres to one acre ; but not 
 as to the extent of his title or right in the land put in view. Such, 
 however, as the distinction was, (and it suited the subtilty of the times,) 
 it prevailed until the statute of 21 Hen. 8, ch. 3, which provided, that 
 in assizes the demandant might in all such cases abridge his plaint, 
 and proceed for the residue, f But this statute is confined to assizes ; 
 and, therefore, left the common law in full force as to all other real 
 actions. 
 
 Such is a brief review of the doctrine at common law in respect to 
 the abridgment of plaints by the demandant. It is not, however, to be 
 imagined that the old authorities are all in harmony on this subject. 
 On the contrary, diversities of opinion seem to have existed from an 
 early period. In Godfrey's case, 11 Co. 42, 45, the Court proceeded 
 mainly on the rule already stated. Lord Coke, however, thought that 
 the common and true rule and diiference is where a man brings an action, 
 be the suit general or certain and particular, and he demands two things, 
 and it appears of his own showing that he cannot have an action or 
 better writ for one of them, there the writ shall not abate for the whole, 
 but shall stand for that which is good. But when a man brings an 
 action for two things, and it appears that he cannot have this writ for 
 one thing, but may have another in another form, there the writ shall 
 abate for all, and shall not stand for that ^vhich is good. The distinc- 
 tion has sound sense in it ; but it is inapplicable to the present case ; 
 
 * See Gilb. Hist. C. P. 201. 
 
 t See Com. Dig. Abridgment, B. Viner, tit. Abridgment. Tlieol. Dig. 
 Lib. 8, ch. 28. Id. Lib. 16, ch. 2. Keilway 116, pi. 56. 5 Hen. 7. 19 Hen. 
 6, 13. Brooks, Abridgment, pi. 2. 
 
488 Inglis v. The Sailor's Snug Haeboe. 
 
 because here, the plaintiif has not shown upon the pleadings, that he has 
 no title to maintain his writ for the whole.* 
 
 Writs of precipe quod redded then, except so far as the statute 
 25 Edw. 3, of non-tenure aided them, stood upon the footing of the 
 common law. In respect to them, therefore, the demandant could not 
 abridge his claim except in cases of non-tenure ; and if his writ could 
 not by his own confession be maintained for the whole for which he 
 sued, his writ abated for the whole ; and it was not material whether 
 he sued for the entirety of a certain number of acres,, and showed title 
 to a less number ; or whether he sued for the whole or a moiety, and 
 showed title only to a kss aliquot part.f But unless the falsity of his 
 writ appeared by his own confession, even though it appeared by the 
 verdict, the better opinion was that the writ was not abated for the 
 whole. Plowden, indeed, in Bracebridge v. Cooh, Plowden 424, thought 
 the objection fatal. But Lord Hobart, in Glanriekard v. Sidney, Hob. 
 272, 282, condemned that opinion as erroneous, and against common 
 experience in his day. And in this last case it was further held that 
 the variance was but matter of form, and at all events cured by the 
 statute of jeofails of 18 Elizabeth, ch. 14, after a verdict, even though 
 it appeared by confession of the party, upon the pleadings. In that 
 case the writ was formedon for an entirety ; and upon the demandant's 
 own confession it appeared that he was entitled to recover but two-thirds. 
 But the Court held, that the parties having gone to trial upon an issue, 
 and the jury having found a special verdict in favor of the plaintiff for 
 the two-thirds, his suit was not abatable for the whole, but the error 
 was cured by the statute of jeofails of 18 Elizabeth, ch. 14. J Whoever 
 will read Lord Hobart's learned opinion upon that occasion will perceive 
 the most solid reasons brought in support of it. The doctrine that if a 
 demandant sue for an entirety, he may yet after verdict recover for a 
 
 * See 1 Saund. R. 282, 285, note 7. Com. Dig. Abatement, M. N. Cro. 
 Jac. 104. Theol. Dig. B. 8, ch. 28, sec. 13. 9 Hen. 7, 4 (b). 
 
 t See Com. Dig. Abatement, L. 1, 2. M. Saville's E. 86. Glanriekard v. 
 Sidney, Hob. 273, 274,. 279, 282. Com. Dig. Abridgment, B. Chatham v. 
 Sleigh, 3 Lev. 67. Viner, tit. Abridgment. Fitzherbert's Abridgment, tit. 
 Breve, 272. Plowden, 424. 
 
 t See Bacon's Abridgment, Amendment, B. Theol. Dig. Lib. 16, s. 15, 
 18. 2 Roll. Ab. 719, pi. 19. Cooper v. FranUing, 1 Roll. R. 384. S. C. 
 3 Bulst. R. 148. 
 
Ingi,is v. The Sailor's Snug Haeboe. 489 
 
 moiety, is not only supported by the case in Hobart's Eep. 172, but by 
 the case Cooper v. FranUing, 1 Eolh Rep. 384. S. C. 3 Bulst. 148, 
 and 2 Roll. Ab. Ti-ial, p. 719, pi. 12. The doctrine, that if he sue for 
 a moiety he may recover for a less aliquot part, may be deduced from 
 the same causes, for it stands upon the same reasoning as that applicable 
 to entireties. So was the reasoning in Saville's Rep. 48, pi. 165.* 
 There are many cases in ejectment where the same doctrine has been 
 maintained, and in none of them has any distinction been asserted be- 
 tween an ejectment and real actions. The ground of argument has been 
 the variance between the count and verdict ; so that it has turned upon 
 the falsity of the plaintiffs claim and title as propounded in his writ 
 and proved at the trial. So was the case of Ablett v. Skinner, 1 Sid. 
 229, where the ejectment was for one-fourth part of a fifth part ; and 
 the plaintiff's title upon the trial was but one-third part of a fourth of 
 a fifth part ; and yet it was held that he was entitled to recover accord- 
 ing to his title. That case was recognized and fully coniirmed in the 
 case of Denn d. Surges v. Purvis, 1 Burr. Rep. 326 ; where in eject- 
 ment the plaintiff sued for a moiety and recovered a third. Lord Mans- 
 field relied on the analogous doctrine in cases of assize. 
 
 It may then be assumed as certain, that from the time of Lord Hobart 
 the general doctrine has been, that the demandant in any real action is 
 entitled to recover less than he demands in his suit, whether he demands 
 an entirety or an aliquot part, if the variance is not taken advantage of 
 until after a verdict found on trial had. If, indeed, the matter is pleaded 
 in abatement, it is fatal to the whole suit. So if it appears of record by 
 the confession of the demandant in the course of the pleadings, the writ 
 is abatable for the whole, if the tenant choose to take advantage of it 
 before verdict. But if the parties go to trial upon the merits, and a 
 verdict, general or special, is found of any part for the demandant, there 
 the variance between the writ and the title, even though by the confes- 
 sion of the demandant upon the pleadings, is cured by the statute of 
 amendments of 18 Elizabeth, ch. 14. This, then, being the state of the 
 law at the time of the emigration of our ancestors, and the statute of 
 Elizabeth being a remedial and not a penal law, and the general prin- 
 ciple being that statutes made in amendment of the law before that period 
 constitute a part of our common law ; the Court might, if it were neces- 
 
 * See Scot and Scot's case, 4 Leon. R. 39. Com. Dig. Abatement, M. 
 
490 Inglis v. The Sailor's Snug Harboe. 
 
 sary, resort to this principle to support the present suit. But such a 
 resort is not necessary ; because, in the first place, the present case is not 
 one where the defect appears upon the confession of the party ; but if 
 at all, appears from facts proved at the trial upon the general issue. In 
 the next place, the provisions of the judiciary act of 1789, ch. 20, sec. 
 32, upon the subject of amendments and jeofails, are far more extensive 
 than the English statutes, and would justify the most comprehensive 
 construction in favor of the demandant. And in the last place, the 
 original nicety of the common law doctrine upon this subject, at least 
 since the time of Lord Hobart, seems to have given way (where the 
 matter was not pleaded in abatement) to the doctrine of common sense. 
 As far as we can trace it, it has been long established in England. Its 
 existence in America has never been maintained by any positive decision 
 in its favor. On the contrary, in Massachusetts, where real actions con- 
 stitute the ordinary remedy for disseizins and ousters, it has been solemnly 
 adjudged, upon a careful consideration of the English authorities, that 
 the demandant may in all cases recover less than he sues for, whether 
 he sues for an entirety or an aliquot part. So are the cases of Dewy v. 
 Broion, 2 Pick. Eep. 387 ; and Somes v. Skinner, 3 Pick. Rep. 52 ; and 
 the opinion of very able commentators upon this branch of the law.* 
 There is nothing in the case of Gh^een v. Liter, 8 Cranch 229, 242, which 
 trenches upon this doctrine. So far, indeed, as that case goes, it is favor- 
 able to the demandant. 
 
 I have not thought it necessary to go into a particular examination 
 of the point, whether, if the variance between the demandant's title and 
 his demand in his writ be apparent only by the finding of the jury upon 
 the general issue, and not by the pleadings of the parties, or the confes- 
 sion of the demandant, the writ was abatable for the whole, upon the 
 old doctrine of the common law. There is much reason to believe, as 
 has been already intimated, that under such circumstances the variance 
 was never fatal to a recovery pro tanto ; and the modern doctrine in 
 England is certainly in favor of a recovery. But whether it be so or 
 not, independent of the statute of jeofails, that statute certainly cures 
 the defect upon the principles already stated. 
 
 Upon the whole my opinion is, that this question ought to be certified 
 in favor of the demandant. 
 
 * Jackson on Real Actions 296. Stearns on Eeal Actions 204. 
 
Inglis v. The Sailor's Snug Haeboe. 491 
 
 This cause came on to be heard on the transcript of the record from 
 the Circuit Court of the United States for the southern district of New 
 York, and on the questions and points on which the judges of the said 
 Circuit Court were opposed in opinion, and which were certified to this 
 Court for its opinion, in pursuance of the act of Congress for that pur- 
 pose made and provided, and was argued by counsel ; on consideration 
 whereof, it is the opinion of this Court : 
 
 I. That although the count in the cause is for the entire right in the 
 premises, the demandant may recover a less quantity than the entirety. 
 
 II. And under the second general point, the following answers are 
 given to the specific questions : 
 
 1. If John Inglis, the demandant, was born before the 4th of July, 
 1776, he is an alien, and disabled from taking real estate by inher- 
 itance. 
 
 2. If he was born after the 4th of July, 1776, and before the 15th 
 of September of the same year, when the British took possession of 
 New York, he would not be under the like disability. 
 
 3. If he was born after the British took possession of New York, 
 and before the evacuation on the 26th of November, 1783, he would 
 be under the like disability. 
 
 4. If the grand assize shall find, that Charles Inglis the father, and 
 John Inglis the demandant, did, in point of fact, elect to become and 
 continue British subjects, and not American citizens, the demandant is 
 an alien, and disabled from taking real estate by inheritance. 
 
 III. The will of Catherine Brewerton was sufficient to pass her right 
 and interest in the premises in question, so as to defeat the demandant's 
 right to recover, so far as her right or interest extended. 
 
 IV. The proceedings against Paul Eichard Eandall, as an absent 
 debtor, passed his right or interest in the lands in question to, and vested 
 the same in the trustees appointed under the said proceedings, so as to 
 defeat the demandant's right to recover so far as his right or interest 
 extended ; unless the grand assize shall find, that the trusts vested in 
 the trustees have been performed ; and if so, the said proceedings will 
 not defeat the demandant in any respect. 
 
 V. The devise in the will of Eobert Eichard Eandall of the lands 
 in question is a valid devise, so as to divest the heir at law of his legal 
 estate. 
 
 Whereupon it is ordered and adjudged by this Court to be certified 
 
492 Inglis v. The Sailor's Snitg Haebor. 
 
 to the judges of the said Circuit Court of the United States for the 
 southern district of New York : 
 
 I. That although the count in the cause is for the entire right in the 
 premises, the demandant may recover a less quantity than the entirety. 
 
 II. And under the second general point, the following answers are 
 given to the specific questions : 
 
 1. If John Inglis, the demandant, was born before the 4th of July, 
 1776, he is an alien, and disabled from taking real estate by inheritance. 
 
 2. If he was born after the 4th of July, 1776, and before the 15th 
 of September of the same year, when the British took possession of 
 New York, he would not be under the like disability. 
 
 3. If he was born after the British took possession of New York, and 
 before the evacuation on the 26th of November, 1783, he would be 
 under the like disabilily. 
 
 4. If the grand assize shall find, that Charles Inglis the father, and 
 John Inglis the demandant, did, in point of fact, elect to become and 
 continue British subjects, and not American citizens, the demandant is 
 an alien, and disabled from taking real estate by inheritance. 
 
 III. The will of Catherine Brewerton was sufficient to pass her right' 
 and interest in the premises in question, so as to defeat the demandant's 
 right to recover, so far as her right or interest extended. 
 
 IV. The proceedings against Paul Richard Randall, as an absent 
 debtor, passed his right or interest in the lands in question to, and vested 
 the same in the trustees appointed under the said proceedings, so as to 
 defeat the demandant's right to recover so far as his right or interest 
 extended ; unless the grand assize shall find, that the trusts vested in 
 the trustees have been performed ; and if so, the said proceedings will 
 not defeat the demandant in any respect. 
 
 "V. The devise in the will of Robert Richard Randall of the lands in 
 question, is a valid devise, so as to divest the heir at law of his legal 
 estate. 
 
 All of which is accordingly hereby certified to the said Circuit Court. 
 
 Mr. Webster, on a subsequent day of the term, submitted to the Court 
 an application in behalf of the demandant, for a re-argument of this 
 case. He presented, as the ground of the application, a statement in 
 writing signed by the counsel in the case, Mr. Ogden and himself, rep- 
 resenting " that the question in this cause, which arises on the construe- 
 
Inulis v. The Sailor's Snug Haeboe. 493 
 
 tion of the will of Robert Richard Randall, is one, not only of great 
 importance, but certainly of no small difficulty. The case was argued 
 at a time when there were six judges on the bench. At the time of the 
 decision there were but five judges living who had heard the cause ; of 
 these five, three were against the demandant upon the construction of 
 the will, being a minority of the whole Court. Under these circum- 
 stances, as counsel for the demandant, in a foreign country, the counsel 
 feel it their duty to ask for a re-ai-gument ; the more particularly, as it 
 appears from an affidavit now submitted to the Court, that a sister of 
 the demandant, who is now and long has been a feme covert, in case of 
 a decision, upon the construction of the will, in favor of the demandant, 
 is not subject to the disability of alienism, and may therefore maintain 
 a suit to recover the property in dispute." 
 
 Mr. Wirt objected to the re-argument, alleging, that should it be 
 allowed, it would establish a precedent which would render every de- 
 cision of the Court uncertain ; and encumber the Court with heavier 
 duties than it could perform. It was without example in the whole 
 course of the Court since its organization. 
 
 Mr. Chief-Justice Maeshall delivered the opinion of the Court. 
 
 The Court have considered the application for a re-argument in this 
 case. It must be a very strong case, indeed, to induce them to order a 
 re-argument in any of the causes which have been once argued and de- 
 cided in this Court. The present case has been very fully considered, 
 and the Court cannot perceive any ground in the present application, to 
 induce them to consent to the motion. It is therefore overruled. 
 
 " Alien, alienigena, is derived from the Latin word aliervus, and according 
 to the etymology of the word it signifieth one born in a strange country, 
 under the obedience of a strange prince or country (and therefore Br acton 
 saith that the exception propter defectum nationis should rather be propter 
 defectum subjectionis), or as Littleton saith (which is the surest), ' out of 
 ligeance of the king.' Note, Littleton saith not out of the realm, but out 
 of the ligeance; for he may be born out of the realm of England, yet within 
 the ligeance," Co. Lit. 128 b, 129 a. Prima facie, a person born out of the 
 territorial limits of a country is an alien, as to such country and to rights 
 under its laws, but the circumstances of his birth may be such that he will 
 42 
 
494 Inglis v. The Sailor's Snug Haeboe. 
 
 be in the eye of the law a native, as, at common law, the children of am- 
 bassadors residing abroad, Calvin's Case, 7 Co. 18 a ; Inglis v. Trustees of 
 Sailor's Snug Harbor, 3 Pet. 99 ; or born on a vessel of the country upon 
 the high seas. Id. ; while on the other hand a person born within the 
 realm, of parents who were alien enemies, would be held an alien, Calvin's 
 Case, supra. 
 
 American Rule of Citizenship as Declared by the Revised 
 Statutes. 
 
 The American rule of citizenship is thus laid down in the Revised 
 Statutes of the United States, and all persons not coming within the pro- 
 visions thereof are born aliens. 
 
 Section 1992. All persons born in the United States, and not subject to 
 any foreign power, excluding Indians not taxed, are declared to be citizens 
 of the United States. 
 
 Section 1993. All children heretofore born, or hereafter born, out of the 
 limits and jurisdiction of the United States, whose fathers were, or may be 
 at the time of their birth, citizens thereof, are declared to be citizens of the 
 United States ; but the right of citizenship shall not descend to children 
 whose fathers never resided in the United States. 
 
 Section 1994. Any woman who is now, or may hereafter be, married to 
 a citizen of the United States, and who might herself be lawfully natural- 
 ized, shall be deemed a citizen. 
 
 Section 1995. All persons born in the district of country formerly 
 known as the Territory of Oregon, and subject to the jurisdiction of the 
 United States, on the 18th May, 1872, are citizens in the same manner as 
 if born elsewhere in the United States. 
 
 The Constitution of the United States, Art. IV., Sec. 2, provides that 
 " The citizens of each State shall be entitled to all privileges and immuni- 
 ties of citizens in the several States." Under this clause, the citizen of any 
 State is to be regarded, for the purpose of holding, enjoying, devising, or 
 inheriting real estate situated in any other, as a native thereof. 
 
 Naturalization — Right of Expatriation. 
 
 Naturalization is also provided for, R. S. 2165-2174. Under our law, a 
 person born within the allegiance of the United States may expatriate him- 
 self and become an alien. The law was not, however, so settled for a long 
 time, and the right of expatriation was long questioned. It was recognized 
 in the first Constitution of Pennsylvania, in that of Vermont, and in that of 
 Virginia, and was early supported upon abstract principles by Professor 
 
Inglis v. The Sailor's Snug Harbor. 495 
 
 Tucker, Tucker's Blacks. App., note K. ; but Chancellor Kent, 2 Kent 
 Com. 44 et seq., declares, after a review of the authorities, that in his time 
 the English rule (nemo potest exuere patriam) remained the doctrine of the 
 American law; and according to Patterson, J., in Talbot v. Janson, 3 
 Dall. 133, even where expatriation was permitted by the legislation of 
 the State, the citizen could not, by emigration or otherwise, in pursuance 
 of such authority, cast off his allegiance due to the United States. The 
 Supreme Court of Kentucky did, indeed, as late as 1839, hold that the 
 right of expatriation was a fundamental American doctrine, and that if 
 no statute upon the subject existed, and a citizen in good faith abjured 
 his country, her assent to his denationalization would be presumed, Alsherry 
 V. Hawkins, 9 Dana 178. The current of authority, however, tended to 
 support the position of Kent. At the same time, the inconsistency of our 
 position, which denied to our own citizens the right of expatriation, and at 
 the same time claimed the right to naturalize aliens, and made their renun- 
 ciation of their former allegiance, without any evidence of assent thereto on 
 the part of their sovereigns, a prerequisite to naturalization, was very ap- 
 parent, and the remedy was applied by Congress, by the Act of July 27, 
 1868, recognizing the right of expatriation. The act is as follows : 
 
 " Whereas, the right of expatriation is a natural and inherent right of 
 all people, indispensable to the enjoyment of the rights of life, liberty, and 
 the pursuit of happiness ; and, whereas, in the recognition of this principle 
 this government has freely received emigrants from all nations and invested 
 them with flie rights of citizenship ; and, whereas, it is claimed that such 
 American citizens, with their descendants, are subjects of foreign States, 
 owing allegiance to the governments thereof; and, whereas, it is necessary 
 to the maintenance of public peace that this claim of foreign allegiance 
 should be promptly and finally disavowed ; therefore, any declaration, in- 
 struction, opinion, order, or decision of any ofiicer of the United States, 
 which denies, restricts, impairs, or questions the right of expatriation, is de- 
 clared inconsistent with the fundamental principles of the republic." 
 
 JBxpatriation, how Accomplislied. 
 
 The mere removal from the country, followed by a long residence abroad, 
 will not be sufficient to raise the inference of expatriation, the intent to ex- 
 ercise the right must be shown by some act. Thus, where a man went to 
 South America for the purposes of trade, to remain indefinitely, and married 
 an alien in the foreign country, but took no further steps showing an inten- 
 tion to transfer his allegiance, it was held that he had not lost his citizenship, 
 and that a child born to him, while abroad, was an American citizen, lAid- 
 
496 Inglis v. The Sailor's Snug Harbor. 
 
 lam V. Ludlam, 26 N. Y. 356 ; and in Kentucky, where the right of expa- 
 triation has always been fully recognized, it was held that where a married 
 woman, who had been taken out of the country by her husband, returned 
 to the State shortly after his death and remained there, there was proof of 
 her intent to retain her citizenship, and that she was entitled to her prop- 
 erty rights as a citizen, Moore v. Tisdale, 5 B. Mon. 352 ; and see Murray 
 V. Flshbaek, 5 B. Mon. 403. 
 
 Effect of Annexation of Territory. 
 
 The annexation of territory has the effect of rendering all the inhabi- 
 tants thereof, who reijiain therein after the annexation, citizens of the 
 annexing country. State v. Primrose, 3 Ala. 546 ; Harr old's Case, 1 Clark 
 (Pa.) 214; but an alien who removed to the territory of Orleans after 
 1803, the date of the treaty of Paris, and prior to the admission of Louisi- 
 ana as a State, did not become by such removal or admission a citizen, 
 State V. Primrose, supra. By the Declaration of Independence, inhabitants 
 of the other parts of the British empire became, as to the United States, 
 alien enemies. Commonwealth v. Bristow, 6 Call 60. 
 
 A question of considerable interest with reference to alienage arose early 
 in the history of this country ; namely, in what position, with respect to 
 their allegiance, were people, born before the Declaration of Independence, 
 placed by the adoption thereof? The British government was overthrown 
 by a revolution, new sovereignties rose from the colonies. These sovereignties 
 claimed to have succeeded to the rights of the British crown. Was then 
 every person born within the boundaries of a State to be considered a na- 
 tive, notwithstanding his disaifection to the State and his preference for the 
 allegiance under which he was bom ? Should he be allowed an election ? 
 or should his status be fixed by his geographical position either at the time 
 of the Declaration or at the time of the treaty of peace and recognition with 
 the mother country ? 
 
 These questions were considered in Ainslie v. Martin, 9 Mass. 454, and 
 the' ground was taken that all persons born within the province of Massa- 
 chusetts Bay before the Declaration of Independence were born within the 
 allegiance of the State, by relation, as successor to the rights of the crown. 
 Paesons, C. J., said: "By this [the common law], to make a man an 
 
 alien, he must be bom without the allegiance of the commonwealth 
 
 But it is said that by this common law definition, the demandant is an 
 alien because he was born before the Declaration of Independence. To 
 this it is answered that, then, all the inhabitants bom within the territory 
 of the late province of Massachusetts Bay, and who were born before the 
 
Inglis v. The Sailoe's Snug Harbor. 497 
 
 Declaration of Independence, are also aliens This people, in union 
 
 with the people of the other colonies, considered the several aggressions of 
 their sovereign, on their essential rights, as amounting to an abdication of 
 his sovereignty. The throne was then vacant, but the people, in their 
 political character, did not look after another family to reign ; nor did they 
 establish a new dynasty, but assumed to themselves, as a nation, the sover- 
 eign power with all its rights, privileges, and prerogatives. Thus this gov- 
 ernment became a republic, possessing all the rights vested in the former 
 sovereign, amongst which was the right to the allegiance of all persons 
 
 born within the territory of the province of Massachusetts Bay 
 
 It was therefore considered as the law of the land, that all persons born 
 within the territory of this government and people, although before the 
 Declaration of Independence, were born within the allegiance of the same 
 government and people as the successors of the former sovereign, who had 
 abdicated his throne." This case was followed in Martin v. Woods, 9 
 Mass. 377. 
 
 The doctrine above enunciated was not, however, generally followed, and 
 the rule was soon established that where a person was born in this country 
 before the Declaration of Independence, he had, after that event, the right 
 to elect to which government he would adhere. In Inglis v. Trustees of 
 Sailor's Snug Harbor, 3 Pet. 99, Story, J., said: "Two things usually 
 concur to create citizenship ; first, birth locally within the dominions of the 
 sovereign, and, secondly, birth within the protection and obedience ; or, in 
 other words, within the ligeance of the sovereign. That is, the party must 
 be born within a place where the sovereign is at the time in full possession 
 and exercise of his power ; and the party must also at his birth derive pro- 
 tection from, and, consequently, owe obedience or allegiance to, the sover- 
 eign de facto." And with respect to the question immediately under con- 
 sideration, he said : " Perhaps the clearest analogy to govern such cases Ls 
 to bring them within the rule that applies to eases of conquest where those 
 only are bound to obedience and allegiance who remain under the protec- 
 tion of the conqueror." In commenting upon Ainslie v. Martin, the learned 
 judge denied that it was of authority even in its own State. In Inglis v. 
 Trustees of Sailor's Snug Harbor, supra, the Supreme Court laid down the 
 following rules for determining the citizenship or alienage of the demand- 
 ant, viz. : 
 
 1. If the demandant was born before July 4, 1776, he was born a British 
 subject ; and if he remained within the British lines, and manifested no 
 election to become an American citizen, he must be considered an alien. 
 
 2. If bom in New York after July 4, 1776, and before the British took 
 possession of that city, his infancy incapacitated him to make an election, 
 
 42* 2G 
 
498 Inglis v. The Sailor's Snug Harbor. 
 
 and his father's election determined his status, subject to his right to change 
 it on attaining his majority. 
 
 3. If born in New York during the British possession, he would be a 
 British subject, unless his election to become an American citizen were 
 shown ; and that even though the Legislature of New York had passed an act 
 during the time of such possession, that the allegiance of all within her ter- 
 ritorial boundaries was due to her, and had attainted the father of treason, 
 the attainder operating to release the allegiance. This case, it will be seen, 
 recognized and maintained the right of election in the fullest manner. See 
 also Orser v. Roag, 3 Hill 79 ; Jackson v. White, 20 Johns. 313 ; Shanks v. 
 Dupont, 3 Pet. 242; 1 Harp. Eq. 5 ; Palmer v. Downer, 2 Mass. 179, note; 
 Kilham v. Ward, Id. 236 ; Inhabitants of Manchester v. Inhabitants of Bos- 
 ton, 16 Id. 230 ; Trimbles v. Sarrison, 1 B. Mon. 140 ; Moore v. Wilson's 
 Admr., 10 Yeager 406. 
 
 This election need not have been made in express words, or by any formal 
 act, but might have been inferred from actions ; thus a citizen who left the 
 country during the Eevolution, and remained away until his death, was held 
 to be an alien. Palmer v. Dovmer, supra ; a lady who during the war mar- 
 ried a British officer and went with him to England, where she remained 
 until her death, in 1801, was held an alien, ShanJes v. Dupont, supra; an 
 American who left the. country before the Eevolution and did not return 
 until 1797, Inhabitants of Manchester v. Inhabitants of Boston, supra, and 
 one who had joined the British forces during the war and did not return 
 until after the peace, Orser v. Hoag, supra, were held aliens. But any one 
 who remained in this country after the peace of 1783jwas presumptively a 
 citizen, Trimbles v. Harrison, supra ; and one who left the United States 
 during the Revolution, but returned thereto before the peace, was held a 
 citizen, Kiltham v. Ward, supra ; and the doctrine of election was even ex- 
 tended so far as to allow a deserter from the British forces, or a prisoner 
 of war, voluntarily remaining within the American lines, if he continued 
 there until the peace, to be considered a citizen, Inhabitants of Oummington 
 V. Inhabitants of Springfield, 2 Pick. 394 ; Hebron v. Colchester, 5 Day 169. 
 In Moore v. Wilson's Administrator, supra, it was held that residence prior 
 to the close of the Eevolution was prima facie evidence of citizenship, and 
 that in such case adherence to the British government and not foreign birth 
 was the test o^ alienage ; but in Jackson ex d. Folliard v. Wright, 4 Johns. 
 75, an alien who emigrated to the United States in 1779, and there remained 
 until his death, in 1798, was held to remain an alien. 
 
 The doctrine of election has also been recognized by our courts in con- 
 nection with the secession of Texas from Mexico, Jones v. McMasters, 20 
 How. 8 ; McKinney v. Saviego, 18 Id. 235 ; and also in connection with the 
 
Inglis v. The Sailor's Snug Harbor. 499 
 
 cession of that part of Mexico which was annexed to the United States at 
 the conclusion of the Mexican war, Quintaine v. Tomkins, 1 New Mex. 29 ; 
 Carter v. Territory of New Mexico, Id. 317. 
 
 As to Rights in Realty, no Distinction between Alien Friend and 
 Enemy. 
 
 As to the rights and disabilities of aliens, it is to be premised that, in 
 respect to rights to the acquisition, possession, and enjoyment of real prop- 
 erty, there is no distinction made by the law between an alien friend and 
 an alien enemy, Marshall v. Conrad, 5 CaU 364 ; Yea v. Mercereau, 3 Har- 
 rison (N. J.) 387 ; Fairfax's Heir v. Hunter's Lessee, 7 Cr. 609 ; Stephen's 
 Heir\. Swann, 9 Leigh 404; the alien's disability resting upon his alienage 
 and not upon his inimical character. Mead v. Read, 5 Call 207. 
 
 Alien may take by Purchase, but cannot Hold as against the State. 
 
 The rule of the common law is that an alien may take land by purchase, 
 but he cannot hold it as against the State. He may, however, hold it until 
 the State manifests her intention to enforce the forfeiture by an office found, 
 Clifton T. Executors of Haig, 4 Desau. 330 ; Groves v. Gordon, 3 Brev. 245 ; 
 Doe ex d. Govemeur's Heirs v. Robertson et al., 11 Wheat. 332 ; Smith v. 
 Zaner, 4 Ala. 99 ; Montgomery v. Borion, 7 N. H. 475 ; Sheaffe v. (XNeil, 
 1 Mass. 256 ; Fairfaxes Devisees v. Hunter's Lessee, 7 Cr. 603 ; Craig v. 
 Radford, 3 Wheat. 594 ; Craig v. Leslie, Id. 589 ; Laurens v. Jenney, 1 Spears 
 356 ; Dudley v. Grayson, 6 T. B. Mon. 269 ; Wadsworth v. Wadsworth, 12 
 N. Y. 376, 16 Barb. 601 ; Den ex d. Blount v. Horniblea, 2 Hayw. 36 ; 
 Jenkins v. Noel, 3 Stew. (Ala.) 60 ; Ramires v. Kent, 2 Cal. 558 ; People v. 
 Folsom, 5 Id. 373 ; Buchanan v. Deshon, 1 H. & G. 280 ; Merle v. Mathews, 
 26 Cal. 455; Waugh v. Riley, 8 Met. 290; Kottman v. Ayer, 1 Strobh. 552 ; 
 Phillips V. Moore, 10 Otto 208 ; Scanlan v. Wright, 13 Pick. 523 ; Den ex 
 d. Trustees of University v. Miller, 3 Dev. 188. 
 
 A devise is a purchase within the meaning of rule stated above, Cross v. 
 De Valle, 1 Wall. 5 ; Vaux v. Nesbit, 1 McCord Ch. 352 ; Marshall v. Conr 
 rod, 5 Call 364 ; Fox v. Southack, 12 Mass. 143 ; Gfuyer et al. v. Smith et al., 
 22 Md. 239. 
 
 It is true there are some cases in which the Court is reported to have 
 held that an alien cannot take by "virtue of a devise, Trustees of University 
 
 V. , 2 Hayw. 104 ; Gilmore v. Kay, Id. 108 ; but these cases, if 
 
 correctly reported, seem to be overruled by Miller v. Harwell, 3 Murph. 
 194, in which Taylok, C. J., delivering the opinion of the Court, said : " I 
 
500 Inglis v. The SaiLoe's Sxug Haebor. 
 
 believe the law to be well settled that an alien may take by devise, although 
 there be some cases and dicta to the contrary." 
 
 To divest the estate of an alien, acquired by purchase, an office found, or 
 an equivalent proceeding on the part of the State, is absolutely necessary, 
 Jackson ex d. Smith v. Adams, 7 Wend. 367 ; Elmondorff v. Carmiehael, 3 
 Lit. 472 ; as the act of conveyance to an alien is regarded as a cause of 
 forfeiture, though the term escheat is sometimes rather loosely used in this 
 connection, and it would be against all the precedent and principle of our 
 law to forfeit an estate without a judicial proceeding of some sort, MeOavi 
 V. Galbraith, 7 Eich. 74. An act of confiscation, naming the alien enemy 
 whose land is to be confiscated, is equivalent to an office found. Den ex d. 
 Bayard et ux. v. Singleton, 1 Mart. (N. C.) 48 ; and so is the issue by the 
 State of an escheat patent for the land, Guyer et al. v. Smith et al., 22 Md. 239. 
 
 Title of Alien not Subject to Collateral Attack. 
 
 The title of an alien cannot be' attacked for alienage in a collateral pro- 
 ceeding, Ramires v. Kent, 2 Cal. 558 ; Norris v. Soyt, 18 Id. 217 ; or by 
 any person except the State, Racouillat v. Sansevain, 32 Cal. 376 ; thus it is 
 held that while an alien, who has not declared his intention of becoming a 
 citizen, cannot hold a mining claim against one who connects himself with 
 the government title by compliance with the mining laws, Golden Fleece 
 Co. V. Cable Consolidated Company, 12 Nev. 312, yet he will be protected 
 in his possession against trespassers who do not show a connection with the 
 government title, Courtney v. Turner, Id. 345. 
 
 Alien not accountable for Profits derived before Office Found. 
 
 After an office found, an alien cannot be held to account for the profits 
 and rents derived by him out of the land before its forfeiture, Craig v. 
 Leslie, 3 Wheat. 589. 
 
 Enforcement of Forfeiture a Sovereign Act, and not Exercisable 
 by a Territory. 
 
 The right to enforce a forfeiture is an inherent property of sovereignty, 
 and it cannot be exercised by a territory unless conferred upon it by the 
 law organizing it. In Territory of Montana v. Lee, 2 Mont. 124, the terri- 
 tory undertook to carry into effect an act forfeiting to the territory mining 
 lands held by aliens ; it was held by the Court that the act, not being au- 
 thorized by the organic law, was void. 
 
Inglis v. The Sailor's Snug Haeboe. 501 
 
 An information to forfeit land held by an alien, may be interposed by 
 the State against a claim by an alien plaintiff seeking to recover land, 
 Beid V. The State ex rel. Thompson, 74 Ind. 252. 
 
 Alien may convey before OflSce Found. 
 
 Before office found, an aUen may convey lands, acquired by him by pur- 
 chase, and if the conveyance be to one capable of takiug and holding, his 
 title wUl be good and valid, Marshall v. Conrad, 5 Call 364 ; Jinkins v. 
 Mel, 3 Stew. (Ala.) 60; iSheaffe v. O'Neil, 1 Mass. 256; Montgomery v. 
 Dorian, 7 N. H. 475 ; Foxwell v. Oraddoek, 1 Pat. & H. 250; Halstead v. 
 Board of Commissioners of Lake County, 56 Ind. 363. 
 
 Some authorities, however, have held that the estate so conveyed will 
 stUl be liable to forfeiture by the State, in the hands of the grantee, Sean- 
 Urn, V. Wright, 13 Pick. 523; People v. Conklin, 2 Hill 67. These cases are, 
 however, against the current authority, and the position taken in them 
 seems to be against reason. The ground on which the disability of aliens 
 to hold lands rests, is that it is against public policy to allow persons owing 
 no allegiance to the government to own lands within its jurisdiction and 
 protection, and to draia from its territory its resources, perhaps to be em- 
 ployed in acts of hostility to the protecting power, and at any rate to 
 transfer to foreign hands that influence which always accompanies the own- 
 ership of the soU. It is for this reason that the law ordaias that land held 
 by an alien is forfeitable to the State, and not because the State seeks, by 
 forfeiture, to increase its revenues. If then the State sees fit to abstain 
 from enforcing its plain right, while the land is held by an alien, and the 
 reason for its enforcement exists, it would be contrary to all sound policy 
 and justice that, after the alien has reaped the fruits of the sale of the 
 land, and the land itself has passed to a citizen, the government should 
 then step in and divest the title of one owing allegiance to it, because he 
 had received the land by a conveyance from an alien. 
 
 Action by Alien before Oflace Found. 
 
 As to the ability of an alien before office found to maintain an action to 
 recover realty, there has been some difference of opinion. In Laurens v. 
 Jenney, 1 Spears 356, the Court seemed to think that the current of au- 
 thority was against the right, saying : " But if he were out of possession, it 
 would seem he can maintain no action to recover it. This results from his 
 incapacity to maintain any real or mixed action, and not from any inca- 
 pacity to hold the land until the State shall see fit to determine his title 
 
502 Inglis v. The Sailoe^s Skug Harbor. 
 
 by the process of escheat." See also Waugh v. Biley, 8 Met. (Mass.) 290. 
 But the juster and more reasonable view seems to be that stated by Savage, 
 C. J., in Bradstreet v. The Supervisors of the County of Oneida, 13 "Wend. 
 546, the learned judge said: "The case of MeOreery's Lessee v. Allender, 
 4 Har. & McH. 409-412, seems to have been decided entirely on common 
 law principles in the Court of Appeals of Maryland ; there Chase, C. J., 
 says that the title of an alien friend is good against everybody but the 
 State, and that this right of possession could not be divested but by office 
 found, or some act done by the State to acquire possession, and judgment 
 was given for the plaintiff, who was an alien and a British subject. ... If 
 an alien may take and hold real estate against every person, he may do so 
 because he has a right in the property which the laws guarantee to him. 
 It is his as against other individuals ; if they attempt to turn him out, or 
 disturb his possession, he may defend himself by virtue of the estate which 
 he has. But suppose some person, by force or fraud, obtains possession, if 
 the plea of alien friend is a bar, the intruder may enjoy the fruits of his 
 improper conduct with impunity. The law cannot be so unjust. The judg- 
 ment given by Chief-Justice Chase seems to be the legitimate conclusion 
 from the premises conceded in all the cases and in all the books. If it is 
 the property of the alien against everybody but the government, he has 
 the right to the use of it, and, if necessary, to prosecute for it ; surely the 
 right to prosecute is necessarily consequent upon his right to its enjoyment." 
 And see MeOreery's Lessee v. Allender, 4 H. & McH. 409 ; Norris v. Hoyt, 
 18 Cal. 217 ; Airhart v. Massieu, 8 Otto 491 ; Sahriego v. White, 30 Texas 
 576 ; Apthorp v. Backus, Kirby 407. 
 
 Defence before Office Found. 
 
 Even where it has been held that an alien could not maintain his action, . 
 it conceded that where he was in possession, he might defend against one 
 attacking his title. Thus in Fairfax's Devisee v. Hunter's Lessee, 7 Cr. 620, 
 Stoet, J., said : " It seems, indeed, to have been held that an alien cannot 
 maintain a real action for the recovery of lands, Co. Lit. 129 ; Thel. Dig., 
 Ch. 6, Dyer 26 ; but it does not follow that he may not defend in a real 
 action his title against all persons but the sovereign." And see also Waugh 
 V. Eiley, supra, where Wilde, J., recognizes the force of the reasoning in 
 Bradstreefs Case, supra. 
 
 Title acquired as against the State in Massachusetts. 
 
 In Massachusetts, an alien, by long continued and undisturbed possession, 
 may acquire a title which will be good against the State, Piper v. Richard- 
 son, 9 Met. 155. 
 
Inglis v. The Sailor's Snug Haeboe. 503 
 
 Alien canuot Plead his own Alienage in Bar of Specific Per- 
 formance. 
 
 An alien will not be permitted to raise his own alienage in bar of a de- 
 cree of specific performance of a contract relating to realty, Scott v. Tliorpe, 
 1 Edw. Cb. 512. 
 
 Alien cannot acquire Title by mere Operation of Law. 
 
 An alien cannot acquire land by mere operation of law, McClenaghan v. 
 Mc Clenaghan, 1 Strobh. Eq. 295 ; and it is also said that he can acquire no 
 estate in his wife's lands by marriage, Mussey v. Pierie, 24 Me. 559 ; yet 
 this statement must be taken with a qualification, for his joinder with her 
 a conveyance of her land will pass a good title. Whiting v. Stevens, 4 Conn. 
 44 ; Kottman v. Ayer, 1 Strobh. 552. 
 
 Alien cannot take by Descent. 
 
 The general rule of law is that an alien cannot take land by descent, the 
 law denying to him the possession of inheritable blood, or the right to take 
 wherever the right is sought to be derived from the act of the law and not 
 from the act of parties, Co. Lit. 8 a ; Orr v. Hodgson, 4 Wheat. 453 ; Treze- 
 vant V. Estate of Osborn, 3 Brev. 29 ; Smith v. Zaner, 4 Ala. 99 ; Mooers v. 
 White, 6 J. C. K. 360 ; Doe v. Acklar, 7 Wheat. 535 ; Sutliff v. Forg&y, 
 1 Cowen 89 ; Montgomery v. Dorion, 7 'N. H. 475 ; Lessee of Levy v. Mo- 
 Cartee, 6 Pet. 102 ; People v. Gonhlin, 2 HUl 67 ; Doe ex d. Huddleston v. 
 Lazenhy, 1 Ind. 234 ; Hunt v. Wamiehe's Heirs, Hardin 61 ; Yeaher's Heirs 
 V. Yeaker's Heirs, 4 Met. (Ky) 33 ; White v. White, 2 Id. 185. 
 
 As an alien has no inheritable blood, a descent cannot be cast upon him, 
 for the law does nothing uselessly ; and where an alien stands in such a 
 position that he would take as heir but for his alienage, the title to the land 
 vests in the next of kin of the intestate who has inheritable blood, and who 
 does not claim through the alien, just as though the alien were not in exist- 
 ence, Orr V. Hodgson, supra; Jackson ex d. Elmejidorf v. Jaokson, 7 Johns. 
 214; Scott V. Cohen, 2 N. & McC. 293; Walker v. Potomac Ferry Co., 3 
 McA. 440. 
 
 In Kentucky the law is otherwise, and there it is held that the title, 
 which would go to the alien but for his alienage, vests in the State, White 
 V. White, 2 Met. (Ky.) 185; Stevenson v. Blitht's Heirs, 7 Mon. 143; Fry, 
 Vaughan v. Smith, 2 Dana 40. 
 
 No title passes by the deed of an alien claiming land by descent, for no 
 title was ever in him, and, therefore, he can convey nohe, Trimbles v. Har- 
 rison, 1 B. Mon. 140. 
 
504 Inglis v. The Sailor's Snug Haeboe. 
 
 The question of ability to take by descent is to be determined by the 
 status of the claimant at the time of the descent cast. In The Lessee of 
 Jackson v. Burns, 3 Binney 75, Tilghman, C J., said : " Considering this 
 subject on the principle of reason abstracted from authority, it would seem 
 that the right of taking by descent should be governed by the condition of 
 the party at the time of the descent cast, because it is then that he is to 
 enjoy the inheritance. The denial to aliens of the right of taking lands by 
 descent must have been founded on political motives ; on the danger of 
 giving too much influence to persons who, so far from having a common 
 interest with the people of the country, may have an interest directly op- 
 posed to them." In Apthorp v. Backus, Kirby 407, where a native of 
 Jamaica, born in 1772, claimed as heir of her father, who died in 1773, the 
 Court (Law, C. J. and Ellsworth, J.) said : " It would be against right, 
 that a division of a state or kingdom should work a forfeiture of property 
 previously acquired under its laws, which is the case here. The plaintiff's 
 title to the land in question accrued while she was not an alien, nor could 
 she be affected by the disabilities of an alien, but was as much a citizen of 
 the now State of Connecticut as any person at present within it, and her 
 descent was cast under its laws." See also People v. Conklin, 2 Hill 67. 
 
 An exception to the rule, that status at the time of descent cast deter- 
 mined the question of ability to take thereby, was attempted to be estab- 
 lished shortly after the Revolution. . . . Many British subjects, born before 
 the 4th of July, 1776, had, after the Declaration of Independence, become 
 heirs to persons owning lands in the United States, and the question arose 
 whether these heirs were aliens, and subject to all the disabilities of aliens 
 with reference to said lands or not. It was urged that they were born sub- 
 ject to the same sovereign as the people of the United States, and that, on 
 the authority of Calvin's case, they should not be treated as aliens. The 
 matter was argued before the Supreme Court of the United States in Goxe 
 V. McMvain, 2 Cr. 280, and Lambert's Lessee v. Paine, 3 Id. 97, and was 
 decided by that Court in D,awson's Lessee v. Godfrey, 4 Cr. 321. In that 
 case the plaintiff's lessor had been born in England before the Declaration, 
 and had never been in the United States ; it was claimed that he could take 
 by inheritance, but the Court held otherwise. Johnson, J., in delivering 
 the opinion, said : " It is evident the case [Calvin's] is not directly in point, 
 for the only objection here to the right of recovery did not exist in Calvin's 
 case, as whether in England or Scotland he was equally bound in allegiance 
 to the king of Great Britain. It would be a contradiction in terms to 
 contend that Dawson or his wife ever owed allegiance to a government 
 
 which did not exist at the time of their birth In the two cases of 
 
 Coxe V. McHvain, and Lamberts Lessee v. Paine, this doctrine was amply 
 
Inglis v. The Sailor's Snug Harbor. 505 
 
 discussed, and this case is submitted upon those arguments. The counsel 
 then contended that the relation of the post-nati of Scotland (after the 
 Union) to the subjects of Great Britain, was identically the same with that 
 of the ante-nati of Great Britain (before our Revolution) to the citizens of 
 this country, and that the community of allegiance at the time of birth, 
 and not the existing state of it when the descent is cast, is the principle 
 
 upon which the right to inherit depends We have no doubt that 
 
 the correct doctrine of the English law is, that the right to inherit depends 
 up the existing state of allegiance at the time of descent cast, and that the 
 idea that it depends upon the community of allegiance at the time of birth, 
 is a consequence which follows from the doctrine that a man can never put 
 off his allegiance or be deprived of the benefit of it but for a crime. Com- 
 munity of allegiance once existing must, upon these principles, exist ever 
 after. Hence it is that the ante-nati of America may continue to inherit 
 in Great Britain because we once owed allegiance to that crown, but the 
 same reason does not extend to the ante-nati of Great Britain because they 
 never owed allegiance to our government. ... As the common law, which 
 is the law of Maryland, on this subject deprived an alien generally of the 
 right of inheritance, it is incumbent upon the plaintiff to show some excep- 
 tion, in favor of his case. But I know of no exception at common law 
 which gives the right to inherit distinctly from the obligation of allegiance, 
 existing either in fact or in supposition of law." 
 
 Shortly after, the same question came before the Supreme Court of Penn- 
 sylvania, in the case of Lessee of Jackson v. Bums, supra, and was decided 
 in the same way. The ground of the decision was placed in a particularly 
 clear light by Chief-Justice Tilghman in the opinion delivered by him as 
 follows : "By the Declaration of Independence (4th July, 1776), all political 
 connection between Great Britain and the United States was dissolved. From 
 that day the State of Pennsylvania became completely sovereign and inde- 
 pendent ; and the people of Great Britain and Pennsylvania had no other 
 relation to each other than that of aliens : in war, enemies ; in peace, friends. 
 It has never been denied that this was the case so far as respected sove- 
 reignty and allegiance. But it has been contended, that by the principles 
 of the common law prevailing in both countries, certain rights flowing from 
 former connection remained in the people of each ; that the right of inherit- 
 ance was unimpaired in all those who were born before the dismemberment 
 of the British empire, because the people of both countries were once bound 
 in allegiance to the same sovereign I suspect, if the principle con- 
 tended for could be traced to its source, it would be found to have originated 
 in another principle not compatible with the Constitution of Pennsylvania 
 or her sister States; that is to say, that no man can, even for the most press- 
 43 
 
506 Inglis v. The Sailok's Snug Haeboe. 
 
 ing reasons, divest himself of the allegiance under -which he was born. 
 This doctrine is founded chiefly upon Calvin's ease. To the main point 
 decided in that case, there can be no objection ; it was simply this, that 
 Calvin, who was born in Scotland after the crowns of Scotland and Eng- 
 land were united in the person of James I., was not to be considered as an 
 alien ia England. But the judges, in the course of their arguments, laid 
 down many other principles, which being collateral, to the point in ques- 
 tion, were in some measure extrajudicial ; and it is certain that they have 
 not all been received with approbation by their successors. I am informed, 
 however, and believe it to be a fact, that by the law as now held in Eng- 
 land, citizens of the United States, born before the Revolution, are capable 
 of taking lands in England by descent. It is supposed by some, that 
 merely for that reason the Courts of the United States should extend the 
 same principle to the subjects of Great Britain. To this I cannot assent. 
 I confess I should be mortified, if my own country were surpassed by any 
 on the globe in acts of humanity and benevolence. But it is evident that 
 Courts of justice have no right to regulate these matters. They are for the 
 sovereign power of the nation. The judges must decide according to the 
 law. The English adhere to their principle, that those who were born un- 
 der the king's allegiance, can never be considered so completely aliens as 
 to be incapacitated from taking lands by descent. But I apprehend that 
 they restrict the right of inheritance to the case of persons either bom under 
 the king's allegiance or beiag under it at the time of the descent cast. I 
 presume they do not extend it to all those who have owed a temporary alle- 
 giance ; for instance, to the inhabitants of a country conquered in war, and 
 ceded by the treaty of peace to its former sovereign. This principle then, 
 even if sound, cannot be applied to the circumstances of the United States ; 
 because, although there was a time when the people of England and the 
 United States owed allegiance to the same sovereign, yet there never was a 
 time when the people of England owed allegiance to the United States." 
 The Court accordingly held that the ante-natus could not inherit. 
 
 The same doctrine was announced in Blight's Lessee v. Rochester, 7 Wheat. 
 535 ; Hebron v. Colchester, 5 Day 169 ; Contee v. Godfrey, 1 Cr. C. C. 479 ; 
 Inglis V. Trustees of Sailor's Snug Harbor, 3 Pet. 99 ; Clifton v. Executors 
 of Haig, 4 Desau. 330. 
 
 A difierent view was taken in New York in Jaokson ex d. Oansevoort v. 
 Lunn, 3 Johns. Cas. 109. That case was as follows : The mother of the 
 wife of Lord Gage was seized, on July 4, 1776, of certain lands in New 
 York ; she died in the fall of that year. It was held that her heir. Lady 
 Gage, who at the time of the Declaration was an infant, could inherit from 
 her mother. Kent, J., said : " One of the inherent properties of the fee 
 
Inglis v. The Sailoe's Snug Harbor. 507 
 
 she [Lady Gage's mother] held, was its capacity to be transmitted by de- 
 scent, and if her issue, then alive and born, and liviag in England, were 
 by the Eevolution rendered incapable of taking these lands by inheritance, 
 the Revolution did then, in fact, impair one of the most valuable ingre- 
 dients in her title. It destroyed her then existing inheritable blood 
 
 It is, perhaps, the better opinion that as to the title to land acquired previ- 
 ously to the Revolution, the right of the British subject to transmit the 
 same by descent continued unaltered and unimpaired, at least to the heirs 
 ill esse at the time of the Revolution. This admission will not controvert 
 the general rule that a natural-born subject cannot transmit his inheritance 
 to an alien heir (Co. Lit. 8 a), because this is the peculiar and extraor- 
 dinary case of a revolution in which the heir was not an alien when the 
 Revolution took place." The doctrine of this case, however, never ob- 
 tained, and in spite of the support derived from the name of Kent, it was 
 repudiated in its own State. In Orser v. Hoag, 3 HiQ 79, it is said by the 
 Court : " The distinction upon which the exception to the general rule was 
 sought to be sustained in Jackson v. I/wnn, has been repeatedly repudiated 
 as unfounded in law or reason." 
 
 Title not Derivable through Alien Ancestor. 
 
 An alien having no inheritable blood can neither receive nor transmit 
 an inheritance ; and, therefore, wherever it becomes necessary to derive title 
 through an alien ancestor, the title fails, even though the title is sought to 
 be made, collaterally, from one citizen to another, Lessee of Levy v. Me Car- 
 tee, 6 Pet. 102 ; Jackson v. Fitzdmmons, 10 Wend. 9. 
 
 Stat. 11 and 12 Wm. HI., and State ILegislation, upon the same 
 Subject. 
 
 As this rule sometimes causes hardship, and as there is no policy of law 
 to be subserved by excluding a citizen, so deriving his title, from its enjoy- 
 ment, acts in imitation of the English Statute of 11 and 12 Wilham III., 
 c. 6, entitled, " An Act to enable His Majesty's natural-born subjects to 
 inherit the estate of their ancestors, either lineal or collateral, notwithstand- 
 ing their father or mother were aliens." It was retained in force in Penn- 
 sylvania : see report of the judges, appendix to 6 Binney 527 ; Maryland, 
 see Me Oreerifs Lessee v. Somerville, 9 Wheat. 354 ; and, perhaps, in some 
 other States. It enacted "that all and every person, being the king's 
 natural-born subject or subjects, within any of the king's realms or domin- 
 ions, should and might thereafter inherit, and be inheritable as heir or 
 
508 Inglis v. The Sailor's Snug Haeboe. 
 
 heirs, .... and make their pedigree and titles by descent from any of 
 their ancestors, lineal or collateral, although the father and mother, or 
 father or mother or other ancestor ... by, from, through, or under whom, 
 he, she, or they should make or derive their title or pedigree, were, or was 
 or should be, born out of the king's allegiance, and out of His Majesty's 
 realms and dominions, as freely, fully, and effectively to all intents and pur- 
 poses, as if such father and mother, or father or mother or other ancestor, 
 had been naturahzed or natural-born subjects." 
 
 This statute, it is held, does not create a new heir, but merely does away 
 with a disability arising from the heir being obliged to derive his title through 
 an alien, and, therefore, does not enable a citizen, whose alien ancestor is still 
 living, to take land as by descent. As said by Stoey, J., in McOreery's Les- 
 see V. Somermlle, 9 Wheat. 354, " it puts the party in the same situation, and 
 
 no other, that he would be in if his parents were not aliens If the 
 
 Legislature had intended not only to create inheritable blood but also to 
 create absolute heirship, some explanatory language would have been used ; 
 the statute would have declared not only that the party should make title by 
 descent, in the same manner as if his parents were natural-born subjects, but 
 that he should be deemed the heir whether his parents were living or dead." 
 
 The like was the effect of the New York Statute of 1830, which was 
 passed with the same object as that of the Statute of William III., and 
 under it a citizen whose alien ancestor, through whom his title must come, 
 is living cannot take, People v. Irvin, 21 Wend. 128. 
 
 The North Carolina Act of 1801, § 2, however, differs from the English 
 act, and makes an heir out of the citizen, although his alien ancestor be 
 stUl alive. The preamble of the act recites that it is "contrary to the true 
 policy of this government that lands should escheat to the State through 
 failure of blood, when any relations of the ancestor exist, who in any case 
 might, or in justice ought to, inherit." And the object of the law, accord- 
 ing to Pearson, C J., was to prevent the alien from enacting the part of 
 the dog-in-the-manger, and preventing the citizen from having what he 
 himself could not enjoy, Gamphell v. Camphell, 5 Jones, Eq. 246 ; Den ex d. 
 Rutherford's Heirs v. Wolfe, 3 Hawks. 272. 
 
 In Virginia, by the statute of descents, 1 Eev. Code (1819), Ch. 96, c. 18, 
 p. 351, the life of the alien ancestor did not bar the descent as in the case 
 of the English statute, Jaeksons v. Sanders, 2 Leigh 109. 
 
 In Texas, it is held that descent may be cast through a living alien an- 
 cestor, and that he will be regarded as civiliter mortuus, Hanrick v. Han- 
 rieh, 54 Tex. 101. 
 
 The same has been held to be the effect of the statute of Missouri, Gen. 
 Stats. (1865), Ch. 129, p. 517, by the Supreme and Circuit Courts of the 
 
Inqlis v. The Sailor's Snug Harbor. 609 
 
 United States, Sullivan v. Burnett, 4 Morr. Trans. 671 ; but there is no 
 decision of the Supreme Court of the State upon the statute. 
 
 The general rule obtains in Indiana, but a statute of 1852, 1 G. & H., 
 § 1, p. 255, removed the disability to inherit in favor of resident aliens, 
 Murray et al. v. Kelly et al., 27 Ind. 42. 
 
 Alienage of Father not a Bar to Inheritance between Brothers. 
 
 The alienage of a common father does not impede the descent of land 
 from one brother to another, Parish v. Ward, 28 Barb. 328 ; Imhrs v. 
 Eimer, 80 N. Y. 171. 
 
 Exceptions to Rule that Alien cannot take by Descent. 
 
 There are some exceptions to the rule that an alien cannot take or trans- 
 mit land by descent. Thus where an alien takes land by virtue of legisla- 
 tive provisions, his lands will descend to his heirs, although aliens, Jackson 
 ex d. Smith v. Adams, 7 Wend. 367 ; and where the commonwealth has 
 conveyed land to an alien, for a valuable consideration, with warranty, it 
 has been held that the State is estopped from settling up against the heirs 
 of the alien, their or his alienage, Commonwealth v. Seirs of Andri et al, 
 3 Pick. 224 ; but it is also held that a private act of Legislature, author- 
 izing an alien to take, hold and alienate land in like manner as a citizen, 
 will not so far change the law of descent as to remove the bar of alienage 
 against an heir, but will merely allow the land to descend to the nearest of 
 kin of the decedent, who is not under disability to take. Parish v. Ward, 28 
 Barb. 328 ; Goodell v. Jackson, 20 Johns. 707 ; Jackson v. Ety, 5 Cow. 314 ; 
 Jackson v. Adams, supra; McGregor v. Comstock, 3 Comst. 408. 
 
 Where an alien has received a patent from the United States for land 
 in Iowa, and dies, his resident heirs can take his estate, since the States of 
 Iowa and Florida were admitted to the Union on condition that they should 
 not interfere with the primary disposal of the soil by the United States, 
 King v. Ware, 53 Iowa 97. 
 
 On Death of Alien, liand Escheats without Office Found. 
 
 When an alien, who has purchased land, dies, no office having been found 
 in his Ufetime, his estate escheats, without office found, and the State be- 
 comes at once entitled thereto, Mooers v. White, 6 Johns. Ch. 360 ; Steven- 
 son et ux. V. Dunhp and Blight's Heirs, 7 T. B. M. 134; Slater v. Nason, 
 15 Pick. 345 ; Jackson v. Adams, 7 Wend. 367 ; Farrar v. Dean, 24 Mo. 
 16; Orane v. Reeder, 21 Mich. 24; Ettenheimer v. Heffernan, 66 Barb. 
 374 ; LarreoM v. Davignon, 5 Abb. Pr. R. 367. 
 43* 
 
510 Inglis v. The Sailor's Snug Haebor. 
 
 In North Carolina, an exception appears to be made in favor of the 
 native-born child of an alien ; and it is there held that such child will suc- 
 ceed to his father's lands if the title thereto has not been divested by an office 
 found in the ancestor's lifetime ; but that where the child is an alien, the 
 ordinary rule that no office found is necessary to prevent the descent being 
 cast upon him prevails. Den ex d. Trustees of the University v. Miller, 3 
 Dev. 188. 
 
 Disability of Alienage not Avoided by a Trust. 
 
 The rule as to purchase and devise of land is the same in equity as at 
 law. Cross v. De Valle, 1 CUffi 282 ; S. C. 1 Wall 5 ; and the disabilities 
 of an alienage cannot be avoided by means of a trust ; and where land is 
 conveyed or devised to a citizen on a trust, express or secret, that he shall 
 hold for the lise of an alien, a court of equity wUI not enforce the trust in 
 favor of the alien, Atkins v. Kron, 5 Ired. Eq. 207, but will consider the 
 trustee seized to the use of the State, and wiU enforce the trust for its 
 benefit, so as to vest the alien's title in the State. In Huhhard v. Goodwin, 
 3 Leigh 492, where the question was very carefully considered, Caee, J., 
 after reciting the legal restrictions resting upon an alien, said : " Would it 
 not seem a strange inconsistency in the law, if principles so vital, so care- 
 fully guarded, might be rendered a dead letter by a mere change ia the 
 form of conveyance ? And yet this would be very much the case if, by 
 making a citizen the trustee, the beneficial interest of the alien in the land 
 
 would be placed beyond the reach of the sovereign But the law is 
 
 not justly chargeable with such inconsistency. .... I conclude, then, the 
 commonwealth had a right to recover this estate by bill in equity ; " and 
 TuCKEB, P., said : " I am very clearly of opinion, that where, for the pur- 
 pose of evading the law which prohibits an alien to hold lands, he purchases 
 real estate in the name of a trustee, upon an express or secret trust, to be 
 permitted to take and receive the rents and profits, this is such a trust as 
 in reason, and upon the well-received principles of equity, as well as upon 
 authority, will pass to the State, and be enforced at its instance and in its 
 favor. 
 
 " In reason, indeed, there can be no doubt. The inhibition of the law 
 would be vain and nugatory if it could be evaded by such a trust. The 
 policy of the rule which denies to an alien the capacity to hold lands for 
 his own benefit, rests upon the ground that it is unwise to permit the soil 
 of the country to be in the hands of the subjects of a foreign power, and 
 its revenues to be enjoyed by them ; since the State must be impoverished 
 by transporting the revenue of the land into foreign countries, and weak- 
 
Inglis v. The Sailor's Snug Haebor. 511 
 
 ened by putting a part of its territory under subjection to a foreign Prince. 
 NoV, in a trust of this description, every evil that can flow from the con- 
 veyance of the legal title equally exists, and hence we shall find that for 
 centuries past, it has been held that the use of an alien shall go to the 
 king. Had not this principle been adopted, the Courts must either have 
 permitted the alien to enforce the trust, which would have been a direct 
 infraction of the policy of the law, or they must have held the trustee enti- 
 tled to the property for his own use, which would have been to hold out to 
 him the wages of treason." See also Leggett v. Dubois, 5 Paige 114, where 
 it is held that the Court would not raise a resulting trust ia favor of an 
 alien whose money had purchased land, the title to which had been placed 
 in a citizen, Walwoeth, Ch., saying : "The law will never cast the legal or 
 equitable estate upon a person who has no right to hold it. . . . When an 
 alien purchases land, and takes an absolute conveyance in the name of a 
 citizen, without any agreement or declaration of trust, the law wUl not 
 raise a trust in favor of the alien purchaser, who cannot hold the land any 
 more than it would cast it by descent upon alien heirs, who cannot hold it 
 against the State." See also Hammehin v. Clayton, 2 Woods 336. It is also 
 held that where title to realty is in a citizen, as agent for aliens, who, if 
 citizens, might at any time compel a conveyance to themselves, on tender- 
 ing the purchase money, there is such an interest of the alien therein as 
 will pass to the State under an act of confiscation, Day v. Murdoch, 1 
 Munf 460. 
 
 The State, however, must enforce the trust in the lifetime of the alien 
 cestui que trust, and, therefore, where there was a devise to a trustee in 
 trust for the sole and separate use of an alien feme covert for Hfe, with 
 power to the feme covert to appoint the fee by will, and the feme covert, 
 having appointed, died, it was held that the forfeiture, not having been en- 
 forced by the State during the lifetime of the alien, could not be enforced 
 against appointees, not personally disabled by alienage, Escheator of S. 
 Philip's and L. Michael's v. The Real Estate of Hester Smith, 4 McC. 452. 
 It will be seen that the rule here in equity is somewhat difierent from that 
 at law, unless the appointment is to be regarded as a conveyance, and as 
 validated by the rule which sustains a conveyance made before office found ; 
 this explanation, however, would not apply in a case where the native heir 
 of a cestui que use took the equitable estate by descent. 
 
 Devise or Conveyance in Trust to Sell and Pay Proceeds to an 
 Alien, or to Convey to an Alien wlien Naturalized, not Invalid. 
 
 A devise or conveyance to a citizen in trust, to sell as soon as practicable 
 and pay over the proceeds to an alien, is not invalid, as in that case there 
 
512 iNaiiis V, The Sailor's Snug Harbor. 
 
 is no intention that the land shall be held for the benefit of an alien, Anstice 
 V. Brown, 6 Paige 448 ; Craig v. Leslie, 3 Wheat. 563 ; and a devise of land 
 in trust, to hold for the use of A., an alien, the legal title to be vested in 
 the trustee until such time as A. shall become duly qualified to hold realty, 
 and then to convey to A., has been upheld, the Court regarding the estate 
 as given on condition precedent of naturalization, and a devise in thq same 
 wUl, of profits of realty to be paid to an alien before naturalization, was 
 held to be subject to forfeiture, McGaw v. Galbraith, 7 Eich. 74. In giving 
 judgment in that case, Waedlaw, J., said : " It is contrary to the policy 
 of the law, that an alien, especially one residing abroad, should hold lands 
 in this State or enjoy their profits ; but it is not contrary to such policy, 
 that lands should be conveyed to one abroad after he has become natural- 
 ized, or that lands and their accumulated profits should be held by a citizen 
 in expectation of the naturalization of a foreigner to whom, in that event, 
 they are to be conveyed. A trust to pay profits, or to convey land to an 
 alien, falls withia the principles which prevent an alien from holding the 
 lands which he purchases. If the trust here was to convey unconditionally 
 to Hugh Hackett, an alien, we say not now whether it would be held that, 
 notwithstanding the contrary intent of the testator, the legal estate would 
 be transferred by the Statute of Uses to the alien, so that it might be for- 
 feited, or that the trust would be binding, so that a title would result to the 
 heirs, or the trustees would take the legal estate and the alien the trust, 
 subject to such right as might be urged on behalf of the State." 
 
 Carrying out the principles above indicated, it is Held, that while equity 
 will not decree a conveyance to an alien, yet if he has taken land in pay- 
 ment for a debt, it will order a sale and the payment of the proceeds to 
 the alien, Merle v. Andrews, 4 Tex. 200. 
 
 Enforcement by State, for its own Benefit, of a Trust for Alien. 
 
 Before any title vests in the State, whereby it can enforce a trust for an 
 alien for its own benefit, the fact that the trust is for an alien must be found 
 by an inquest of office or equivalent proceeding, Me Caw v. Oalbraith, supra; 
 Jackson ex d. Culverhouse v. Beach, 1 Johns. Cas. 399. 
 
 Land of Alien Grantee of the United States Escheats to the 
 State. 
 
 In the case of an escheat, for want of competent heirs of lands granted 
 by the United States to an alien, the land is taken by the State as sovereign 
 of the realty, and not by the United States by way of reversion, Etheridge 
 V. Doe ex d. Malempre, 18 Ala. 565. 
 
Inglis v. The Sailor's Snug Harbor. 513 
 
 Effect of Naturalization. 
 
 Naturalization has the effect of making an alien competent to hold and 
 receive lands as a citizen ; it takes away any defect of blood, and the alien 
 may inherit as though native born. It has, however, no such retroactive 
 effect as will enable him to take, as heir, lands, the descent of which was cast 
 before his naturalization, Vaux v. Nesbit, 1 McCord Ch. 372 ; People v. Conk- 
 lin, 2 Hill 67 ; Eeen&y v. Trustees of Brooklyn Benevolent Society, 33 Barb. 
 360 ; or vest an estate, Keenan v. Keenan, 7 Rich. 345 ; but naturalization will 
 confirm a title, previously acquired, by purchase or devise, Jackson ex d. 
 Doran v. Green, T Wend. 333 ; Harley v. State ex rel. the Attorney- General, 
 40 Ala. 689. It will not have the effect of depriving the subject of it of 
 rights previously given to him by the Legislature. Thus in Spratt v. Spratt, 
 4 Pet. 393, an alien was given power, by an act, to take and transmit to 
 his heir, property, as though he and they were citizens. He was after- 
 wards naturalized. The Court held that, as to the lands acquired by him 
 before naturalization, his alien heirs could inherit, and would not be barred 
 by the rule which would prohibit an alien taking, by descent, from a citizen. 
 In delivering the opinion, Marshall, C. J., said : " The words .... are 
 not inoperative, since they give a capacity which citizenship does not give — 
 the capacity of transmitting to relatives who are foreigners. This capacity 
 is given absolutely by the act, and is not, we think, affected by his becom- 
 ing a citizen." 
 
 • 
 
 Federal and State Rights to Regulate Tenure of Property by 
 Alien. 
 
 The right to naturalize, so as to give the full rights of citizenship, rests, 
 under the Constitution of the United States, with the federal authority 
 exclusively, and for the excellent reason, that, as the citizen of any State 
 is entitled to the privileges of citizenship in all the other States, were the 
 law otherwise, any one State might regulate citizenship for all the other 
 members of the Union ; but a State may render an alien capable of taking 
 by descent, or holding land, without conferring on him the rights of citi- 
 zenship, Montgomery v. Dorian, 7 N. H. 475 ; Etheridge v. Doe ex d. Mai- 
 empre, 18 Ala. 565, as the right to regulate the descent and tenure of 
 realty falls within the power of the State. Chief-Justice Eedfield, in 
 State V. Boston, Concord and Montreal B. E. Co., 25 Vt. 433, indeed, argued 
 to the contrary, as follows : " It seems to me that the right to interfere 
 with aliens holding real estate in this country, strictly and appropriately 
 belongs to the national, and not the State, sovereignty. It goes upon the 
 basis of some defect in allegiance, and allegiance is a matter pertaining 
 
 2H 
 
514 Inglis v. The Sailor's Snug Haeboe. 
 
 altogether to the national sovereignty. They have the exclusive control of 
 all relations between this country and foreign nations and their citizens. 
 And the States are expressly prohibited, in the United States Constitution, 
 from attempting any stipulation, treaty, or compact upon the subject. And 
 the national government have already assumed to enter into stipulations 
 with some European nations upon this particular subject. In the consular 
 treaty, lately concluded between France and the United States, it is, by the 
 Seventh Article, stipulated that in all the States of the Union, whose laws 
 permit, Frenchmen shall enjoy the right of possessing personal and real 
 estate in the same manner as citizens of the United States, and the Presi- 
 dent engages to recommend to such States as do not permit aliens to hold 
 real estate, to pass such laws as may confer the right. This shows in what 
 light the national sovereignty is disposed to regard the matter. Indeed, 
 after proclaiming ourselves the asylum of the oppressed and the home of 
 the homeless and desolate, it would certainly have an ugly sound, to declare 
 aliens incapable of acquiring and holding real estate iu time of peace, they 
 approving themselves peaceable and quiet dwellers upon our shores. In- 
 deed, I conjecture it will be found, in fact, altogether impracticable, to 
 exercise any such power in these States at the mere option of the State 
 sovereignty, as is done in England by what they denote an inquest of 
 office." 
 
 ' It is submitted that this claim of the exclusive right for the federal gov- 
 ernment to fix the status of aliens, with respect to their acquisition and 
 possession of realty, is too broad, and certainly not in accordance with the 
 position taken by the federal government. The consular treaty, cited by the 
 learned judge, is in itself the highest evidence of deference to State author- 
 ity ; the President engages, " to recommend to such States " a more liberal 
 policy. While it is true that the President and Senate, by some treaties, 
 have done, by indirection, what the Congress at large is given no power to 
 do directly, namely, conferred certain property rights upon aliens, and it 
 seems confessed, though not without some dissent, that it was rightfully 
 done, yet the vast majority of treaties have recognized the right of the 
 State to prohibit the tenure of land by an alien, and have only provided 
 for the withdrawal of the proceeds of a sale of land by the alien, and 
 granting the power iu the federal government to exercise, by treaty, to the 
 full. Yet this is very different from the assertion of an exclusive right ; at 
 most, it would show a co-ordinate power existing in both State and federal 
 government. The argument in favor of the exclusive rights rests mainly 
 iipon the theory advanced, that "allegiance is a matter pertaining altogether 
 to the national sovereignty ; " but the States have not been slow to assert 
 for themselves a claim to the allegiance of their citizens. See, as examples 
 
Inglis v. The Sailor's Snug Harbor. 515 
 
 of this, the statutes defining and punishing treason to the State, of Penn- 
 sylvania, Ohio, Maryland, and Massachusetts. So that on any ground 
 upon which we consider the question, whether merely in theory or in the 
 light of the practice of the country, there would seem to be no doubt that 
 a State can regulate the tenure of land within its boundaries, and may 
 admit aliens, denied citizenship by the federal authority, to such rights in 
 real property as it sees fit. 
 
 No Big'Iits acquired by Declaration of Intention to become 
 a Citizen. 
 
 In order that naturalization may confer any right of inheritance, it must 
 be complete, and no right is acquired by the mere declaration of intention 
 to become a citizen, McDaniel v. Richards, 1 McCord 187. 
 
 Statutory Regulations. 
 
 It is to be premised, that an act, enabling an alien to take, hold, or in- 
 herit lands, is to be strictly construed as in derogation of the common law. 
 Thus, an act authorizing the descent to alien heirs of lands held by aliens,^ 
 by deed or will, was held not to authorize the descent of land purchased by 
 an alien at a chancery sale, for which no deed was executed prior to the 
 death or naturalization of the purchaser, Spratt v. Spratt, 4 Pet. 393. 
 
 The following is a brief statement of the effect of the statutes upon the 
 subject of aliens, with reference to their capacity to take or hold lands in 
 the various States : 
 
 Alabama. — There is no restriction upon an alien, and he may take by 
 purchase or descent, and may transmit the inheritance as may a native. 
 Code (1876), Tit. 7, Ch. 2, § 2860, p. 677. 
 
 Arkansas. — Aliens, who are bona-fide residents of the State, have the 
 same rights in realty as have citizens, Const., Art. I., § 20 ; Rev. Stat., Ch. 
 III., § 224. 
 
 California. — The Constitution gives fiill rights of real property to resi- 
 dent aliens. This is not extended so as to permit non-resident aliens to 
 take by descent, Siemssen v. Bofer, 6 Cal. 250; Farrell v. Enright, 12 Id. 
 450 ; and to be capable of taking by descent, the alien must have been 
 resident at the time of descent cast. The Civil Code of 1876, however, re- 
 moves all restrictions from aliens, except that it requires the alien tp make 
 his claim of property within five years of the accrual of his title, Div. 2, 
 Pt. I., Tit. 2, Ch. 1, §§ 5671, 5672. 
 
 Colorado. — An alien is placed, as to real property, on the same footing as 
 a citizen. Gen. Laws, Ch. IV., § 15. 
 
516 Inglis v. Thk Sailor's Snfg Harbok. 
 
 Connecticut. — Aliens resident in the United States, and also Frenchmen 
 "so long as France accords the same rights to citizens of the United 
 States," have the same property rights as citizeng, Gen. Laws, Tit. 2, Ch. 1, 
 §4. 
 
 Delaware. — ^Aliens resident in this State, who have declared their inten- 
 tion of becoming citizens of the United States, may take, hold, and inherit 
 as citizens may, and the heir of such an alien may take, by inheritance, if 
 residing within the United States at the time of the intestate's death, Laws, 
 Delaware, Tit. 12, Ch. 81, § 1, p. 493. 
 
 Florida. — All restrictions are removed. Laws of Florida (McClellan's 
 Dig. 1881), Ch. 92, §§ 7, 14, p. 470. 
 
 Georgia. — An alien may hold land, on filing an oath that he intends to 
 improve the same, provided, that prior to his declaration of intention to 
 become a citizen, he shall not hold more than one hundred and sixty acres. 
 Code (1873), Pt. 2, Tit. 6, Ch. 6, § 2676, p. 465. 
 
 Illinois. — All restrictions are removed, Kev. Stats. (Hurd 1880), Ch. 6, 
 § 1, p. 136. 
 
 Indiana. — Formerly, while an alien, who had declared his intention to 
 become a citizen, could purchase and hold land. Slate v. Blachmo, 8 Blackf. 
 246, yet, if he died before naturalization, a minor child, who had not been 
 reported by his or her father at the time of declaration of intention, could 
 not succeed to the land as heir, Eldon v. Doe d. Wynn, 6 Blackf. 341 ; but 
 at- present the law permits an alien to acquire land by descent or devise ; 
 but if he be an alien, non-resident of the United States, he can hold land, 
 acquired by descent, only for eight years after the final settlement of the 
 estate of the decedent from whom it is inherited, Act, March 9, 1861, Stat. 
 of Ind., Revision of 1876, Vol. I., p. 61. 
 
 Iowa. — An enabling act was passed March 15, 1858 (Rev. St., §§ 2488- 
 2493), and was held to give the power of inheritance to any alien becom- 
 ing a resident of the United States, but to deny it to non-residents, Krogan 
 V. Kinney, 15 Iowa 242 ; Rheim v. Bobbins, 20 Id. 45. These cases were 
 overruled in Purczell v. Smidt, 21 Id. 540, by a divided Court, Dillon and 
 Cole, JJ., holding that § 2489 gave to every alien whatsoever, the right, 
 after the passage of the act, to acquire land by descent or devise, but not 
 to purchase, except upon condition of selling the land within ten years to 
 a qualified person. Lowe, C. J., and "Weight, J., adhered to the interpre- 
 tation formerly given to the act. This decision was followed in Oreenheld 
 v. Standforih, Id. 595, as to the capacity of non-resident aliens to inherit, 
 but in Brown v. Pearson, 41 Id. 481, the Court returned to the doctrine of 
 Krogan v. Kinney. The doubt in the matter was, at least as to future titles, 
 or cases subsequently arising, finally settled by an act of Legislature, re- 
 
Inglis v. The Sailor's Snug Harbor. 517 
 
 moving all restrictions upon the right of aliens to hold lands, Annotated 
 Stats. Iowa (McClain 1880), Pt. 2, Tit. XIII., Ch. 1, § 1908. 
 
 Kansas, — Restrictions upon the holding or taking of land are forbidden 
 by the seventeenth section of the Bill of Rights. 
 
 Kentucky. — An alien may take land by purchase, but not by descent, 
 Rev. St (Stanton 1860), p. 65 ; and see the case of White v. White in the 
 note to same. After declaring his intention to become a citizen, the alien 
 may hold land, Gen. Stats. (1873), Ch. 14, Art. III., § 1. 
 
 Maine.— There are no restrictions. Gen. Stats. (1871), Tit. VII., Ch. 73, 
 § 1, p. 559. 
 
 Maryland. — There are no restrictions upon aliens who are not enemies, 
 Rev. Code (1878), Art. 45, § 8. 
 
 Massachusetts. — " Aliens may take, hold, transmit, and convey real estate, 
 and no title to real estate shall be invalid on account of the alienage of any 
 former owner ; but nothing contained in this section shall defeat the title to 
 any real estate heretofore released and conveyed by the commonwealth, or 
 by authority thereof," Gen. Stats., Ch. 90, § 38 ; Pub. Stat. (1882), Pt. 2, 
 Tit. 1, Ch. 126, § 1, p. 744. 
 
 Michigan. — By the Constitution, aliens who are hona-fide residents of the 
 State are insured the same rights, in respect to the possession, enjoyment, 
 and inheritance of property, as native-born citizens. Art. XVIII., § 13. 
 
 Minnesota. — An alien is empowered to take, hold, transmit, and convey 
 real estate in the same manner as a citizen. Stats. (1878), Ch. 75, § 41, 
 p. 820. 
 
 Mississippi. — Under the latest revised code, there is no restriction upon, 
 an alien, Ch. 44, § 1230. 
 
 Missouri. — Prior to the enactments at present in force, an alien resident in 
 the United States could take by descent, but one resident abroad could not, 
 Wacker v. Wacker, 26 Mo. 426. In the case of an alien, resident in any 
 of the United States other than Missouri, in order to enable him to take 
 by descent, he must have made a declaration of intention to become a citi- 
 zen; this declaration was not required of an alien resident in Missouri, 
 Sullivan v. Burnett, 4 Morr. Trans. 671. Now all restrictions are removed. 
 Rev. Stats., Ch. 3, § 325, p. 49. The removal is, however, prospective only, 
 Sullivan v. Burnett, supra. 
 
 Nebraska. — It is provided by the Constitution that no distinction shall 
 be made as to property rights between resident aliens and citizens. Const., 
 Art. I., § 25; and, by statute, all restrictions upon the holding or taking 
 of realty by non-resident aliens have been removed, Comp. Stats. (Browa 
 1881), Ch. 73, § 54, p. 394. 
 44 
 
518 Inglis v. The Sailoe's Skug Harbor. 
 
 New Hampshire. — All restraints are removed as to resident aliens, Gen. 
 Laws, Ch. 135, § 16. 
 
 New Jersey. — There is no restraint upon alien friends, Revision of 1877 
 (Stewart), p. 6, §§ 1, 2, 3. 
 
 New York. — In 1798, an act was passed, limited in duration to three 
 years, validating conveyances to alien friends. Act, April 2, 1798. An 
 alien taking under this act had the right to convey, and property taken 
 by virtue thereof can be held by alien grantees, or devisees, until it comes 
 to the hands of a citizen, and that notwithstanding the subsequent change 
 of policy by the State with reference to aliens, Duke of Cumberland v. 
 Graves, 7 N. Y. 305 ; People v. Snyder, 41 Id. 397 ; an alien, however, could 
 not, under this act, make a lease reserving a rent, Troup, Admr. v. Mvl- 
 lender, 9 Johns. 303. 
 
 In 1802, an act was passed extending the privileges of the Act of 1798 
 to resident aliens. Act of March 26, 1802, which were, in 1804, 1805, and 
 1808, extended to those becoming inhabitants up to the close of the session 
 of the Legislature of the latter year. In 1825 was passed the Act of April 
 21, 1825, which is substantially the law at present; see 2 Rev. St., Part II., 
 p. 1093, §§ 31-34; Rev. St., Art. 2, §§ 31, 32; Rev. St. (1882), Pt. 2, Ch. 1, 
 Tit. 1, p. 2164. It is as follows: "§ 15. Any alien who has come, or may 
 hereafter come, into the United States, may make a deposition or affidavit 
 in writing .... that he is a resident of, and intends always to reside in, 
 the United States, and to become a citizen thereof as soon as he can be 
 naturalized, and that he has taken such incipient measures, as the laws of 
 the United States require, to enable him to obtain naturalization, which 
 shall be certified," etc. 
 
 " § 16. Any alien, who shall make and file such deposition thereupon, 
 shall be authorized and enabled to take and hold lands and real estate of 
 any kind whatsoever, to him, his heir, and assigns, forever, and may, dur- 
 in-3; six years thereafter, sell, assign, mortgage, demise, and dispose of the 
 same in any manner, as he might or could do if he were a native citizen 
 of this State, or of the United States, except that no such alien shall have 
 the power to lease or demise any real estate which he may take or hold by 
 virtue of this provision, until he become naturalized. 
 
 " § 17. Such alien shall not be capable of taking or holding any land or 
 real estate which may have descended or become devised or conveyed to 
 him previously to his having become such resident, and made such deposi- 
 tion or affidavit as aforesaid. 
 
 " § 18. When such alien shall die, within six years after making and 
 filing such deposition, intestate, leaving heirs inhabitants of the United 
 States, such heirs shall take, by descent, and hold any real estate of which 
 
Inglis v. The SAilor's Snug Harbor. 519 
 
 such alien died seized in the same manner as they would have inherited if 
 such alien had been at the time of his death a citizen of this State." 
 
 The statute bound aliens resident at the time of its passage, and they 
 were, as well as those afterwards removing into the country, compelled to 
 make the deposition required, in order to be assured in their lands, Ken- 
 nedy V. Wood, 20 Wend. 230. 
 
 It was contended, early in the litigation upon the above statute, that the 
 Legislature had by it provided a complete system whereby aliens could 
 hold and acquire land, and that all the rules of the common law with refer- 
 ence thereto were abrogated. In the case of The Matter of Leefe and Wife, 
 4 Edw. 395, McCouN, V. C, condemned this view ; but in Currin v. Finn, 
 3 Denio 229, the Court said that the Act of April 21, 1825, modified all 
 previous statutes, and that no alien could, after its passage, take land by 
 purchase without complying with the provisions of the act. In Wright v. 
 Saddler, 20 N. Y. 320, the matter came squarely before the Court of Ap- 
 peals, whether, where lands had been conveyed jointly to a wife and an 
 alien husband, the alienage of the latter would, on his wife's death, prevent 
 the title to the whole vesting in him, subject to the State's right of forfeiture. 
 The Court held that it would not. Comstock, J., in delivering the opinion, 
 discussed quite fully the object and effect of the act. After adverting to , 
 the position that the common law had been abrogated thereby, he said : 
 " If this is a correct view of the statute, one of two results must follow : 
 1. That any attempt to convey lands to an alien, who has not filed such 
 deposition, vests the title and seizin in the State instantly, and without any 
 judicial proceeding to recover the land, as an escheat ; or, 2. That the con- 
 veyance is void, leaving the title in the grantor. It has been argued that 
 the deed in such a case is void ; but the contrary is, I think, plainly true. 
 In the case of a devise to an alien, who is not authorized by any general or 
 particular statute to hold real estate, such devise is declared, by a pro- 
 vision in the statute of wills, to be void ; and the interest, or estate so de- 
 vised', descends to the heirs of the testator, if there be any, and if not, then 
 it will go to the resident devisee, if there are any competent to take, 2 Rev. 
 St. 57, § 4. In this respect, the Revised Statutes have changed the com- 
 mon law by a provision which is free from all doubt. 
 
 " The question then is this : At the common law, as we have seen, the 
 title to lands conveyed to an alien vested in him subject to a defeasance or, 
 forfeit in favor of the State. ... I am of opinion that, in the respect under 
 consideration, the rule of the common law is still in force, notwithstanding 
 the provisions of the statute which have been referred to. The policy of . 
 the enactment, I think, is obvious. It was to enable resident aliens, intend- 
 inc to become citizens, on filing the required deposition in the office of 
 
520 Inglis v. The Sailor's Snug Harbor. 
 
 the Secretary of State, to hold real estate as though they were in fact citi- 
 zens. . . . The policy of these laws, in short, is liberal and not restrictive; 
 they were not designed to subvert the defeasible rights which the common 
 law conceded to aliens, but to enlarge their rights, and convert them into 
 estates of a higher order, on the condition of residence, and an intention to 
 become citizens, to be made manifest by a deposition. ... I do not over- 
 look the language of the seventeenth section. . . . Now, ' such alien ' is 
 the resident alien mentioned in the preceding sections, who has filed >the 
 deposition therein required, and the object of the provision is precisely to 
 confine the peculiar benefits of these statutes to cases where the lands are 
 acquired after the condition has been performed. As to lands previously 
 acquired, and those acquired by aliens who are not within these statutes at 
 all, by reason of non-residence, or by reason of not having filed the deposi- 
 tion, the common law was left in force. According to the defendant's con- 
 struction, ' such alien,' that is, plainly the resident aliens, who alone are 
 mentioned in the context, cannot take lands in any sense, not even subject 
 to the right of escheat, until they have filed their deposition as required. 
 This construction leads to a discrimination between resident and non-resi- 
 dent aliens unfavorable to the residents, which the Legislature certainly 
 did not intend to make. For while non-resident aliens are not the subject 
 of the statute at all, and may take lands as at common law, those who 
 reside here, but have not filed the deposition, according to this argument, 
 are deprived of the capacity which they would have if they remained in 
 the countries where they were born." 
 
 Under the act of 1825, it is held that where, after the death of a husband, 
 who had taken the first steps towards naturalization, an alien wife filed 
 the required deposition, and was naturalized, she is not thereby entitled to 
 take, by a devise, from him, Mick v. Mick, 10 Wend. 379 ; nor can an alien 
 heir inherit from a naturalized ancestor, without previously complying with 
 the law as to the deposition, Mc Carty v. Terry, 7 Lans. 236 ; nor can a citi- 
 zen take as heir to an alien father, Larreau v. Davignon, 5 Abb., Pr. R. N. 
 S. 367. 
 
 Under the Act of 1825, where land is devised to an alien, it is held 
 that the efiect of the devise is to vest in him a title defeasible by the State 
 until the proper deposition is filed, but absolute as against the heirs of the 
 testator. Hall v. HaM, 81 N. Y. 130. 
 
 In 1843, an act was passed confirming titles to aliens who had become 
 naturalized, or who became so within one year after the acts. This act is 
 confined in its operations to the two classes nanied, Heeney v. Trustees o/ 
 Brooklyn Benevolent Society, 33 Barb. 360 ; Redpath v. Rich, 3 Sand. Sup. 
 a. 79. 
 
Inglis v. The Sailok's Snug Haeboe. 521 
 
 By an Act of 1845, Ch. 115, § 4, it was enacted that on the death of any- 
 alien resident, such person as would answer the description of his heir 
 should be permitted to take the land of the decedent, provided that, if such 
 heir were a male over twenty-one, he should file such a deposition as was 
 required by the Act of 1825. 
 
 This act was held to enable an alien to take land by descent from an 
 alien resident only, but not from a citizen, l/uhrs v. Eimer, 80 N. Y. 171. 
 This incongruity was, however, removed by Act of 1874, Ch. 261, p. 317. 
 See Rev. Stat. (1882), Pt. 2, Ch. 1, Tit. 1, p. 2169. 
 
 North Carolina. — There is no restriction upon an alien, Battle's Rev., 
 Ch. 3, § 1. 
 
 Ohio. — ^An alien may inherit and transmit an inheritance, 1 Rev. St. 
 (1880), § 4173. 
 
 Oregon. — An alien is given the same property rights as a citizen, Miscell. 
 Laws, Ch. XVII., Tit. 3, § 35, p. 588. 
 
 Pennsylvania. — The act of February 23, 1791, gave to aliens, not being 
 subjects of an inimical power, the right to take, by devise or descent, as 
 fully as citizens, 2 Purd. Dig. 65, pi. 1 ; 3 Sm. Laws 4. This act, it was 
 decided, gave no right to an alien to inherit from an alien, for an alien 
 having no heritable blood, could not transmit an inheritance even to a citi- 
 zen, and if he could so transmit to another alien, it would be giving the 
 latter more privileges as to inheritance than those enjoyed by a citizen, 
 Rubeck v. Gardner, 7 Watts 455. The Act of February 10, 1807, § 1, 4 
 Smith's Laws 362, permitted alien friends, who had declared their intention 
 of becoming citizens, to purchase and hold real estate to an amount not 
 exceeding five hundred acres. By the Act of March 24, 1818, 7 Smith's Laws 
 133, aliens, except enemies, were authorized to hold land not exceeding 
 five thousand acres, and finally, by Act of May 1, 1861, § 1, P. L. 433, 
 Purd. Dig. 67, pi. 11, aliens generally were authorized to hold land not 
 exceeding in amount five thousand acres, or, in net annual value, twenty 
 thousand dollars. 
 
 To meet objections to title, arising from time to time, where said title 
 had been derived through aliens, confirmatory acts have been, from time to 
 time, framed by the Legislature. See Purd. Dig. 67, 68, pi. 12-19. 
 
 Rhode Island. — There is no restriction placed upon an alien as to holding 
 land. Gen. Stats. (1872), Ch. 161, § 6, p. 348. 
 
 Tennessee. — By the Act of 1807, it was provided that land should descend 
 to and vest in the next of kin to the decedent, who was resident in the 
 United States, to the perpetual exclusion of aliens related to the decedent 
 in a nearer degree, Starhs v. Traynor, 11 Humph. 292 ; and by the law, as 
 it at present stands, a resident alien, who has declared his intention of be- 
 44* 
 
522 Inglis v. The Sailor's Snttg Haeboe. 
 
 coming a citizen, takes and holds as does a citizen ; a non-resident may- 
 take by devise, and is allo-wed seven years within which to dispose of the 
 land devised. Stats. Tenn. (1871), Pt. 2, Tit. 1, Ch. 2, §§ 1999, 2000. 
 
 Texas. — Under the laws of Mexico, aliens were incapable of acquiring 
 land unless, having been naturalized, they should marry a Mexican woman, 
 Heir of Clay v. Clay, 26 Tex. 24 ; and aliens could not take by descent, 
 Yates V. lams, 10 Tex. 168 ; Hornsby v. Bacon, 20 Id. 556 ; JBlythe v. Easter- 
 ling. Id. 565; Middleton v. McGrew, 23 How. 45. Under these laws a 
 citizen of the United States was incapable of acquiring land as against the 
 government, but if he had acquired land, and no action was taken by the 
 government against him, his title became confirmed on the annexation of 
 Texas to the United States, Ostennan v. Baldwin, 6 Wall. 116. 
 
 By the statute of 1840, Hart's Dig., Art. 585, an alien heir was allowed 
 nine years within which to become a citizen or sell the land. . . . The act 
 contaiued no exception in favor of those under disability. It was held 
 that under this law the alien heir took a defeasible estate on condition of 
 becoming a citizen or selling the land, that the condition was for the benefit 
 of the government, and that on failure to fulfil the condition, the title 
 vested in the State, and not in the next of kin capable of taking, Barclay 
 V. Cameron, 25 Tex. 232 ; see also Cryer v. Andrews, 11 Tex. 170 ; Ward- 
 rup V. Jones, 28 Id. 489. At present, an alien who has declared his inten- 
 tion of assuming citizenship, has the same rights as a citizen as to property, 
 Pasch. Annotated Dig., 2d Ed., Art. 47, p. 106 ; other aliens can take and 
 hold property in the same manner as citizens of the United States are per- 
 mitted to do in their respective countries, Id., Art. 46. 
 
 Virginia. — An alien friend is in the same position as to property rights 
 as citizen. Code (1873), Ch. 4, Tit. 2, § 18. 
 
 Wisconsin.— There is no restriction. Rev. St. (1878), Ch. 99, § 2200. 
 
 Vermont— The Constitution provides that, " Any one of good character 
 who comes to settle in the State, and takes the oath of allegiance, may have 
 all the rights to property in realty that a citizen may," Const., Sec. 39, 
 Rev. (1880), p. 42. 
 
 West Virginia. — There is no restriction upon the property rights of any 
 alien not being an enemy, Rev. Stats. (1879), Ch. 3, § 1. 
 
 The power of the United States to provide, by treaties, for rights to be 
 conceded to aliens, with reference to real property, has been recognized 
 from early times and acted upon. A direct judicial decision as to the power 
 is found in People v. Gerhe, 5 Cal. 381. The right has, however, been ques- 
 tioned, and the grounds of objection are well stated by Murray, C. J., in 
 Siemssen v. Bofer, 6 Cal. 250 : " It cannot be contended, with any show of 
 reason, that the Federal government took this grant of power [i. e. of making 
 
IxGLis V. The Sailor's Snug Harbor. 523 
 
 treaties] in the enlarged sense in which it is exercised by England and the 
 nations on the continent of Europe, or that she is vested with the same 
 plenary powers that the individual States were before the adoption of the 
 Constitution. The political structure of our government forbids such an 
 idea. The power must be construed in reference to the powers delegated to 
 the United States and those reserved to the States, and must be fiirther 
 limited to objects which are the peculiar and proper subject-matter of treaty 
 stipulations. 
 
 " The exercise of the power under the Constitution can scarcely extend 
 beyond that of declaring war, making peace, regulating commerce, and 
 adjusting national misunderstandings and difficulties, and for the execution 
 of such purposes, the power to alter the rules of descent, to change the 
 domestic policy of a State, and to alter the laws of evidence, are not inci- 
 dental any more than the right to abolish slavery or any of the other acts 
 we have enumerated." 
 
 The earliest treaty bearing upon alien rights of property was that be- 
 tween the United States and France, made in 1778 ; by it French subjects 
 were given the right to purchase and hold realty in the United States. See 
 Chirac v. Chirac, 2 Wheat. 259. The rights vested under this treaty were 
 held not to have been destroyed by the abrogation of the treaty, and the 
 expiration of the subsequent convention of 1800, Gameal v. Banks, 10 
 Wheat. 181. 
 
 The treaty of peace and recognition between the United States and Great 
 BritaiQ of 1783 contained a provision against further confiscation, which 
 protected British aliens in the possession of lands held by them in this 
 country. See Orr v. Hodgson, 4 Wheat. 453 ; Trezevant v. Estate of Oshorn, 
 3 Brev. 29. 
 
 The ninth article of the treaty made with Great Britain in 1794, pro- 
 vided that British subjects who then held lands in the United States,' should 
 continue to hold the same with like rights as natives, and that, as to such 
 lands, neither they nor their heirs should be considered as aliens. This 
 treaty was held to protect one who had emigrated to the United States 
 after the Declaration, and had died there after the acknowledgment of the 
 American independence, Jackson ex d. Folliard v. Wright, 4 Johns. 75. 
 
 Both of these treaties applied to and protected titles then existing, only, 
 and sflitors claiming land were held to proof of title existing, either in 
 themselves or their ancestors, at the very time the treaty was made, Blight's 
 Lessee v. Rochester, 7 Wheat. 535 ; Harden v. Fisher, 1 Id. 300 ; Orr v. 
 Hodgson, 4 Id. 453 ; Orser v. Hoag, 3 Hill 79. 
 
 It was not necessary to show actual possession of the land, the test being 
 the existence of title. Harden v. Fisher, supra. The treaties did not, how- 
 
624 Inulis V, The Sailor's Snug Harboe. 
 
 ever, protect a mere possessory right, although the right was afterwards, 
 by legislative act, enlarged into a freehold. Crane v. Beeder, 21 MicL 24. 
 
 The treaty of 1794 did not enable an alien heir to take lands by descent 
 from a citizen, Trimbles v. Harrison, 1 B. Mon. 140 ; and as to lands in 
 Maryland, it was without practical effect, since, at the date of the treaty, 
 all lands owned by British subjects in that State were in the hands of com- 
 missioners, under an act of confiscation, Orwings v. Norwood, 2 H. & J. 104. 
 
 The ninth article of the treaty of 1794 was not annulled by the war of 
 1812. In considering this question in Fox v. Southack, 12 Mass. 143, the 
 Court said : " There seems, however, to be no doubt that this article is one 
 of those stipulations which are distinguished by some writers on the law of 
 nations as real in their own nature ; and which are accomplished by the 
 act of ratification, so that they cannot be dissolved by any subsequent 
 event. ' Pactum liberatorium, quo pax remisso aut transactio facta est qua 
 per extinctum revisiscere non potest,' Com. of H. Cocceius sen. Grot. B. 2, 
 c, 16, § 16." And see Society for the Propagation of the Gospel v. Wheeler, 
 2 Gall. 105 ; Fiott v. Commonwealth, 12 Gratt. 564. 
 
 The above treaties, with the exception of that of 1778, it will be noticed, 
 were simply confirmatory of existing titles, and did not pretend in any way 
 to interfere permanently with the State laws of descent, or with the policy 
 of the States, as to permitting or refusing to allow aliens to hold real estate 
 in their respective boundaries. This policy, whatever may be the right of 
 the United States government, has, except in a few unimportant instances, 
 as will be seen below, been constantly pursued, and the farthest, as a rule, 
 that the general government has gone in its treaties, has been to stipulate 
 that aliens, subjects of the power with whom the particular treaty is made, 
 shall be allowed to sell their lands, and, within a certain time, remove from 
 this country the proceeds thereof. The rule of law is, that when the time, 
 limited 'under the treaty, has expired, if the property remains unsold, the 
 State may take advantage of the forfeiture, Yeaher's Heirs v. Yeaher^s Heirs, 
 4 Met. (Ky.) 33 ; but when the treaty fixes no definite time, and the laws 
 of the State, while making land held by an alien liable to forfeiture, fix no 
 time in which the alien may sell and withdraw the proceeds, the proceeds 
 may be withdrawn at any time, Hauenstein v. Lynham, 10 Otto. 483. 
 
 The following is a brief statement of the rights of aliens with reference 
 to realty as conferred by treaties : 
 
 Subjects of the following powers have the right to succeed to real estate 
 by devise or ab intestato, and may take possession and dispose of the same 
 at their will : New Granada, Treaty, Dec. 12, 1846, Art. XII. ; San Salva- 
 dor, Treaty, Jan. 2, 1850, Art. XII.; Argentine Confederation, Treaty, 
 July 27, 1853, Art. IX." 
 
Inglis v. The Sailoe's Snug Harbor. 525 
 
 Subjects of the following are to be allowed in those States by whose laws 
 alienage is a disqualification to hold real property, two years to sell and 
 withdraw the proceeds of land coming to them by descent, which time may 
 be reasonably prolonged, according to circumstances. Wurtemberg, Treaty, 
 April 10, 1844, Art. II. ; Hesse-Cassel, Treaty, March 26, 1844, Art. II. ; 
 Bavaria, Treaty, Jan. 21, 1845, Art. II. ; Saxony, Treaty, May 14, 1845, 
 'Art. II.; Nassau, Treaty, May 27, 1846, Art. II.; Austria, Treaty, May 8, 
 1848, Art. II. 
 
 Subjects of the following, under like circumstances, are to be allowed 
 three years : Central America, Treaty, Dec. 5, 1825, Art. XL; Hanseatic 
 Eepublic, Treaty, Dec. 20, 1827, Art. VII.; Brazil, Treaty, Dec. 12, 1828, 
 Art. XL; Ecuador, Treaty, June 13, 1839, Art. XIL; Guatemala, Treaty, 
 March 18, 1849, Art. XL 
 
 Subjects of the following, the time allowed by the laws of the State in 
 which the realty is situated : Russia, Treaty, Dec. 6, 18, 1832, Art. X. ; 
 Portugal, Treaty, Aug. 26, 1840, Art. XII. ; Swiss Confederation, Treaty, 
 Nov. 25, 1850, Art. V.; Brunswick and Luneburg, Treaty, Aug. 21, 1854, 
 Art. II.; Nicaragua, Treaty, June 21, 1867, Art. VIII. ; Orange Free 
 State, Treaty, Dec. 22, 1871, Art. IIL 
 
 Subjects of the following are guaranteed a reasonable time within which 
 to sell realty and remove the proceeds thereof: Spain, Treaty, Oct. 27, 1795, 
 Art. XL; Prussia, Treaty, May 1, 1828, Art. XIV.; Hanover, Treaty, 
 June 10, 1846, Art. X.; Oldenburg, Treaty, March 10, 1847; Mecklenburg- 
 Schwerin, Treaty, Dec. 9, 1847, Art. X. ; Hawaiian Islands, Treaty, Dec. 
 20, 1849, Art. VIII. 
 
 The treaties with Portugal and Russia also provide that where no time 
 is limited for the withdrawal by the State laws, their subjects shall have a 
 reasonable time for that purpose. 
 
 The treaties with Bolivia, May 13, 1858, Art. XIL, and with thts Domini- 
 can Republic, Feb. 8, 1867, Art. V., provide that their citizens shall have 
 the longest time allowed by law. 
 
 The treaty with Italy, Feb. 26, 1871, Art. XXIL, provides that her sub- 
 jects shall be placed, with reference to taking and holding real estate in the 
 United States, on the most favored footing. 
 
 The treaty with France, Feb. 23, 1853, Art. VII., provides that in those 
 States " whose existing laws permit so long and to the same extent as the 
 said laws remain in force," Frenchmen may possess land with the same 
 rights thereto as citizens. 
 
TABLE OF CASES CITED. 
 
 Aaron v. Bayne, 28 Ga. 107 ; 320. 
 Abbott V. Essex Co., 18 How. 202 ; 66, 98. 
 Abercrombie v. Eiddle, 3 Md. Ch. 320 ; 407. 
 Ablett V. Skinner, 1 Sid. 229 ; 489. 
 Abraham v. Twigg, Cro. Eliz. 478 ; 79, 86, 
 
 91. 
 Acquackanonk Ch. v. Ackerman, Saxt. 40 ; 
 
 364. 
 Adams v. Adams, 39 Ala. 274 ; 352. 
 
 V. Adams, 5 Mete. 277 ; 363. 
 
 V. Beekman, 1 Paige 631 ; 350. 
 
 V. Hill, 29 N. H. 202 ; 326. 
 
 V. Logan, 6 T. B. Mon. 175 ; 263. 
 
 V. Ore Knob Co., 12 Eeporter 166; 
 
 141, 144. 
 
 V. Pahuer, 51 Me. 480 ; 376. 
 
 Adams v. Boss, 1 Vroom 505 ; 53, 54. 
 Adsit V. Adsit, 2 Johns. Ch. 448 ; 360. 
 Ainslie v. Martin, 9 Mass. 454 ; 433, 466, 
 
 496, 497. 
 Airhart v. Massieu, 8 Otto 491 ; 502. 
 Albee j;.. Carpenter, 12 Cush. 382 ; 99. 
 Alderson's Heirs v. Henderson & Co., 5 W. 
 
 Va. 182 ; 397. 
 Alexander v. Hamilton, 12 S. Car. 39 ; 401. 
 
 V. Warrance, 17 Mo. 228 ; 263. 
 
 Alexander's Ex. v. Bradley, 3 Bush 667; 
 
 407. 
 Allan V. Smith, 1 Cow. 180 ; 399. 
 AUen V. Allen's Adm'r, 4 Ala. 556 ; 331. 
 V. Ashley School, 102 Mass. 265 ; 98, 
 
 110. 
 
 V. Howe, 105 Mass. 241 ; 128, 141. 
 
 V. Markle, 36 Pa. St. 117 ; 97. 
 
 V. McCoy, 8 Ohio 418 ; 305, 399. 
 
 Allen V. Pray, 12 Me. 138 ; 368. 
 Allin v. Bunce, 1 Boot 96 ; 94. 
 AlHng V. Chatfield, 42 Conn. 276 ; 359. 
 Alsberry v. Hawkins, 9 Dana 177 ; 302, 495. 
 Ambler v. Norton, 4 H. & M. 23 ; 351, 363, 
 
 366. 
 Amcotts V. Catherick, Cro. Jao. 615 ; 326. 
 Amelong v. Dorneyer, 16 S. & B. 325; 98. 
 Amesbury v. Brown, 1 Ves. Jr. 477 ; 103. 
 Anderson v. Greble, 1 Ashm. 138 ; 60. 
 Anderson's App., 36 Pa. St. 476 ; 363. 
 Andrew v. Fulham, 2 Str. 1092, 1 Vez. 421 ; 
 
 159. 
 Andrews v. Andrews, 8 Conn. 79 ; 352. 
 
 V. Brumfleld, 32 Miss. 107 ; 199. 
 
 V. Brumfield, 44 Miss. 495 ; 65. 
 
 V. Senter, 32 Me. 394 ; 144, 146. 
 
 V. Spurling, 35 Ind. 262; 54. 
 
 Angell V. Eosenbury, 12 Mich. 241 ; 55. 
 Anstice v. Brown, 6 Paige 448 ; 512. 
 Apperson's Ex. v. Bolton, 29 Ark. 418 ; 408. 
 Apple V. Apple, 1 Head 348 ; 306. 
 Apthorp V. Backus, Kirby 407 ; 502, 504. 
 Arms V. Burt, 1 Vt. 303 ; 54. 
 Armstrong v. Wilson, 60 111. 226 ; 277. 
 
 V. Zane, 12 Ohio 287 ; 66. 
 
 Arnold v. Lincoln, 6 E. I. 384 ; 59. 
 Arnold's Heirs v. Arnold's Adm'rs, 8 B. 
 
 Mon. 202 ; 317. 
 Arrington v. Arrington's Heirs, 2 Car. L. 
 
 Eepos. 253 ; 354. 
 Ashcroft V. Eastern E. E., 126 Mass. 196 ; 
 
 53. 
 Ashley v. Warner, 11 Gray 43 ; 190. 
 Atkin V. Merrell, 39 111. 62 ; 314. 
 
 527 
 
528 
 
 Table of Cases Cited. 
 
 Atkins V. Kron, 5 Ired. Eq. 207 ; 510. 
 
 V. Kron, 8 Ired. Eq. 1 ; 216. 
 
 Atkinson v. Angert, 46 Mo. 516 ; 343. 
 
 V. Stewart, 46 Mo. 510 ; 342. 
 
 Attorney-General v. Bowyer, 3 Ves. 714; 
 
 457, 459. 
 
 V. Clarke, Ambler 651 ; 451. 
 
 V. Downing, Ambler 550 ; 457, 459. 
 
 V. GiU, 2 P. Wms. 369 ; 181. 
 
 V. Marlborough, 3 Madd. 531 ; 102. 
 
 V. Merrimack Co., 14 Gray 612 ; 124, 
 
 188. 
 — ^ V. Tancred, Amb. 351 ; 459. 
 
 V. Vigor, 8 Ves. 282 ; 478. 
 
 Atwood V. Atwood, 22 Pick. 283 ; 316, 322. 
 Auchmuty v. Mulcaster, 8 Dowl. & Byl. 
 
 593; 468. 
 Austin V. Austin, 50 Me. 74 ; 402. 
 V. Cambridgeport Parish, 21 Pick. 215 ; 
 
 128, 139, 143, 144, 184. 
 
 V. Rutland E. E., 45 Vt. 215 ; 214. 
 
 V. Stevens, 24 Me. 520 ; 207, 208. 
 
 Avant V. Eobertson, 2 McM. 215 ; 351, 366. 
 Ayer v. Spring, 9 Mass. 8 ; 399. 
 
 B. 
 
 Babcock v. Babcock, 53 How. Pr. 97 ; 330. 
 Bacon v. Huntington, 14 Conn. 92 ; 124. 
 
 V. Proctor, Turn. & Euss. 31 ; 179. 
 
 Baden v. Downey, 36 N. J. L. 74, 460 ; 65. 
 Bailey v. Boyce, 4 Strobh. Eq. 84 ; 361. 
 V. Duncan's Eep., 4 T. B. Mon. 256 ; 
 
 312, 363. 
 
 V. Litten, 52 Ala. 282 ; 380. 
 
 V. West, 41 lU. 290 ; 375, 393. 
 
 Baird v. Stearne, 39 Leg. Int. 374, 12 W. N. 
 
 C. 205; 330. 
 Baker v. Baker, 4 Greeul. 67 ; 395. 
 
 V. Bridge, 12 Pick. 27 ; 68. 
 
 V. Chase, 6 Hill 482 ; 331. 
 
 V. Fetters, 16 Ohio St. 596 ; 340. 
 
 V. Heiskell, 1 Cold. 641 ; 263, 269, 274. 
 
 v. Nail, 59 Mo. 268 ; 263. 
 
 Baldwin v. Bean, 59 Me. 481 ; 73. 
 BaU V. Payne, 6 Eand. 73 ; 99. 
 Ballet V. Sprainger, Prec. Ch. 62 ; 215. 
 
 Bangor v. Warren, 34 Me. 324 ; 142. 
 Bank of Commerce v. Owens, 31 Md. 320; 
 
 314. 
 Baptist Ass'n v. Hart's Ex., 4 Wheat. 27; 
 
 413, 425, 426, 428, 456. 
 Barbour v. Barbour, 46 Me. 9 ; 300, 408. 
 Barclay v. Cameron, 25 Tex. 232 ; 522. 
 Barheydt v. Barheydt, 20 Wend. 500 ; 62, 
 
 63, 68. 
 Barker v. Cobb, 36 N. H. 344 ; 125, 128, 140. 
 
 V. Parker, 17 Mass. 564 ; 336. 
 
 Barksdale v. Elam, 30 Miss. 694 ; 136. 
 
 V. Garrett, 64 Ala. 277 ; 389, 392. 
 
 Barnard v. Bailey, 2 Harring. 56 ; 69. 
 
 V. Edwards, 4 N. H. 107 ; 90, 389. 
 
 Barnes v. Gay, 7 Iowa 26 ; 312. 
 
 V. Underwood, 47 N. Y. 351 ; 289. 
 
 Barnet v. Barnet, 15 S. & E. 73 ; 373. 
 Barnett v. Gaines, 8 Ala. 373 ; 301. 
 Barney v. Frowner, 9 Ala. 901 ; 399, 400. 
 Barnum v. Barnum, 42 Md. 251 ; 209. 
 Barret v. Beckford, 1 Ves. 521; 78, 80, 
 
 84,, 87. 
 Barrie i;. Smith, 10 N. W. Eeporter 168; 
 
 136, 146. 
 Barr's Lessee «. Galloway, 1 McL. 476; 
 
 263, 264. 
 Barry v. Shelby, 4 Hayw. 229 ; 201. 
 Bartlet v. King. 12 Mass. 543 ; 429. 
 Bartlett v. Gouge, 5 B. Mon. 152 ; 320, 325. 
 Basset v. Basset, 3 Atk. 207 ; 261. 
 Batchelor v. Macon, 69 N. C. 545 ; 69. 
 Bates V. Schraeder, 13 Johns. 260 ; 277, 279. 
 Baxter v. Bowyer, 19 Ohio St. 490 ; 360. 
 Beach v. Haynes, 12 Vt. 15 ; 56. 
 Beal V. Warren, 2 Gray 447 ; 287. 
 Beall V. Holmes, 6 H. & J. 205 ; 62, 197. 
 Beamish v. Hoyt, 2 Eobt. 307 ; 289. 
 Bear v. Snyder, 11 Wend. 592; 318. 
 
 ■ V. Whisler, 7 Watts 144 ; 124. 
 
 Beard v. Knox, 5 Cal. 252 ; 300. 
 Beardslee v. Beardslee, 5 Barb. 324 ; 349. 
 Beavers v. Smith, 11 Ala. 20 ; 399, 401. 
 Beck V. Montgomery, 7 How. (Miss.) 39; 
 
 127, 148. 
 Becker v. Quigg, 54 111. 390 ; 316. 
 Beekman v. Hudson, 20 AVend. 53 ; 203. 
 
Table of Cases Cited. 
 
 529 
 
 Beet ». Ferguson, 3 Grant 289 ; 331. 
 Belford v. Crane, 16 N. J. Eq. 265 ; 382. 
 BeU V. Mayor N. Y., 10 Paige 49 ; 314, 340. 
 
 V. Nealy, 1 Bail. 312 ; 384, 385. 
 
 v. Scammon, 15 N. H. 39 ; 114. 
 
 V. TwiUght, 22 N. H. 500 ; 212. 
 
 Bell County v. Alexander, 22 Tex. 350 ; 126. 
 Bells V. Gillespie, 5 Band. 273 ; 100. 
 Benagh v. Turrentine, 60 Ala. 557 ; 405. 
 Benesch v. Clark, 49 Md. 497 ; 65, 199. 
 Benkert v. Jacoby* 36 Iowa 273 ; 64. 
 Bennet v. Davis, 2 P. Wms. 316 ; 270. 
 Bennett v. Danville, 56 N. H. 216 ; 212. 
 
 V. Haines, 51 Wise. 251 ; 303, 304. 
 
 V. Eobinson, 10 Watts 348 ; 187, 189. 
 
 Benton v. Benton, 4 Harring. 38 ; 202. 
 Berry t>. Furhman, 30 Iowa 462 ; 389. 
 Betts V. Wise, 11 Ohio 219 ; 299. 
 Bigelow V. Barr, 4 Ohio 358 ; 125. 
 Billings V. Baker, 28 Barb. 343 ; 289. 
 
 V. Taylor, 10 Pick. 460 ; 206, 305, 306. 
 
 Binnerman v. Weaver, 8 Md. 517 ; 130. 
 Bird V. Gardner, 10 Mass. 864 ; 314. 
 Bimie v. Maris, 29 Ark. 591 ; 327. 
 Bishop V. Boyle, 9 Ind. 169 ; 339. 
 Bisland v. Hewett, 11 Sm. & M. 164 ; 347. 
 Blackman's Est., 6 Phila. 160 ; 338. 
 Blackmon v. Blackmon, 16 Ala. 633 ; 352. 
 Blackstone Bk. v. Davis, 21 Pick. 42 ; 131. 
 Blain v. Harrison, 11 111. 384 ; 393. 
 Blair v. Thompson, 11 Gratt, 441 ; 347. 
 
 V. Van Blarcum, 71 111. 290 ; 202. 
 
 Blakeney v. Ferguson, 20 Ark. 547 ; 311, 
 
 312. 
 Blanchard v. Brook, 12 Pick. 67 ; 28. 
 Blandford v. Marlborough, 2 Atk. 545 ; 192. 
 Bleecker v. Hennion, 23 N. J. Eq. 123 ; 404. 
 
 V. Smith, 13 Wend. 530 ; 148. 
 
 Blight's Lessee v. Bochester, 7 Wheat. 535 ; 
 
 414, 483, 506, 523. 
 Blodget V. Brent, 3 Cr. C. a. 394 ; 337, 392. 
 Blomer v. Moriet, 2 Ves. 420 ; 369. 
 Blood V. Blood, 23 Pick. 80 ; 266, 323. 
 Blossom V. Blossom, 9 Allen 254 ; 309. 
 Blow V. Maynard, 2 Leigh 29 ; 317, 383. 
 Blunt V. Gee, 5 Cal. 481 ; 359, 362, 367. 
 Blythe V. EasterHng, 20 Tex. 565 ; 522. 
 
 45 21 
 
 Board of Education v. First Bap. Church, 63 
 
 111.204; 142,143. 
 Boatwright v. Faust, 4 McC. 439 ; 72. 
 Boaz V. Boaz, 36 Ala. 334 ; 287. 
 Bogie V. Eutledge, 1 Bay 312 ; 326. 
 Bolster v. Cushman, 34 Me. 428 ; 392, 406. 
 Bondbright's App., 9 W. N. C. 475 ; 130. 
 Bool V. Mix, 17 Wend. 119; 202, 376. 
 Boone v. Tipton, 15 Ind. 270 ; 143, 146. 
 Boone's Eep. v. Boone, 3 Har. & McH. 95 ; 
 
 367. 
 Booth V. Stebbins, 47 Miss. 161 ; 359. 
 Boothby v. Vernon, 9 Mod. 147 ; 283. 
 Bopp V. Fox, 63 111. 540 ; 310. 
 Borie v. Crissman, 82 Pa. St. 125 ; 203. 
 Borland v. Nichols, 12 Pa. St. 38 ; 368. 
 Borland's Lessee v. Marshall, 2 Ohio 308 ; 
 
 265. 
 Bostock V. Smith, 34 Beav. 57 ; 385. 
 Bowen v. Bowen, 18 Conn. 535 ; 143, 144. 
 
 V. Bowen, 34 Ohio St. 164 ; 367. 
 
 V. Collins, 15 Ga. 100 ; 321. 
 
 Bowers v. Keesecker, 14 Iowa 301 ; 311. 
 
 V. Porter, 4 Pick. 198 ; 197, 198. 
 
 Bowes V. Blaokett, Cowp. 235 ; 36, 38, 45.' 
 Bowie V. Berry, 1 Md. Ch. 452; 313, 399. 
 Bowne v. Potter, 17 Wend. 164 ; 317. 
 Boyd V. Carlton, 69 Me. 200; 397, 399. 
 
 V. Harrison, 36 Ala! 533 ; 312, 408. 
 
 V. Hunter, 44 Ala. 705 ; 320. 
 
 Boyer v. Boyer, 1 Cold. 12; 335. 
 Boyle V. Eowand, 3 Des. 555 ; 389. 
 Boynton v. Sawyer, 35 Ala. 497 ; 326, 347, 
 
 404. 
 Bracebridge v. Cook, Plow. 424; 488. 
 Brackett v. Leighton, 7 Me. 383 ; 304. 
 Braddick v. Thompson, 8 East 344; 118. 
 Braden v. Cannon, 1 Grant 60 ; 97, 98. 
 
 !). Cannon, 24 Pa. St. 168; 97. 
 
 Bradfords v. Kents, 43 Pa. St. 474; 363, 
 
 364, 365. 
 Bradshaw v. Eogers, 20 Johns. 103 ; 4C0. 
 Bradstreet v. Clark, 2 Pick. 389 ; 137. 
 
 V. Oneida Co., 13 Wend. 546 ; 502. 
 
 Brailsford v. Heyward, 2 Des. 290 ; 66. 
 Brandt v. Ogden, 1 Johns. 156 ; 228, 242. 
 Branson «J. Yancy, 1 Dev.Eq. 77; 393. 
 
530 
 
 Table op Cases Cited. 
 
 Brant v. Va. C. & I. Co., 16 Am. L. Keg. (N. 
 
 S.)403; 64. 
 Brasher v. Williams, 10 Ala. 630 ; 250. 
 Brattle Street Church v. Grant, 3 
 
 Gray 142 ; 150, 18R, 189. 
 Braxton v. Coleman, 5 Call 433 ; 401. 
 
 V. Freeman, 6 Kicli. 35 ; 369. 
 
 Bray v. Lamb, 2 Dev. Eq. 372 ; 349. 
 
 V. Neill, 21 N. J. Eq. 343 ; 369. 
 
 Breckenbridge v. Denny, 8 Bush 523 ; 61. 
 Brenner v. Gauch, 85 III. 368 ; 353. 
 Brent v. Best, 1 Vern. 70 ; 215. 
 Brett V. Cumberland, Cro. Jac. 399, 521 ; 117. 
 Brewer v. Connell, 11 Humph. 500 ; 334. 
 
 V. Vanarsdale, 6 Dana 208 ; 313. 
 
 Bridge v. Wellington, 1 Mass. 227 ; 56. 
 Bridgeforth v. Maxwell, 42 Miss. 743 ; 349. 
 Bridgwater v. Bolton, 2 Salk. 267 ; 36. 
 Briggs V. Shaw, 9 Allen 516 ; 69. 
 Brigham v. Shattuok, 10 Pick. 306 ; 185. 
 Brightman v. Brightman, 100 Mass. 238 ; 98. 
 Brink v. Layton, 2 Eedf. 79 ; 360. 
 Broadway v. State, 8 Blackf. 290 ; 138. 
 Brooks V. Brooks, 2 S. Car. 422 ; 203, 207. 
 - — V. Everett, 13 Allen 457 ; 317. 
 
 V. Jones, 11 Mete. 191 ; 55. 
 
 V. Woods, 40 Ala. 538 ; 347, 348. 
 
 Brough V. Higgins, 2 Gratt. 408 ; 207, 211. 
 Broughton v. Kandall, Cro. Eliz. 503 ; 325. 
 Brown v. Alien, 14 B. Mon. 144 ; 100. 
 
 V. Bennett, 75 Pa. St. 420 ; 144. 
 
 V. Bronson, 35 Mich. 415 ; 330. 
 
 V. Caldwell, Speer's Eq. 322 ; 361. 
 
 V. Cantrell, 62 Ga. 257 ; 365. 
 
 V. Clark, 44 Mich. 309 ; 287. 
 
 V. Duncan, 4 McCord 346 ; 327, 329, 
 
 399. 
 
 V. Farran, 3 Ohio 142 ; 373. 
 
 V. Hodgson, 31 Me. 65 ; 368. 
 
 V. Lapham, 3 Cush. 351 ; 341. 
 
 V. Moore, 13 Reporter 758 ; 405. 
 
 V. Pearson, 41 Iowa 481 ; 516. 
 
 V. Eichards, 17 N. J. Eq. 32 ; 305. 
 
 V. Weaver, 28 Ga. 377 ; 97. 
 
 V. Williams, 31 Me. 403 ; 324. 
 
 V. Wood, 17 Mass. 68 ; 59. 
 
 Browne v. Anderson, 2 H. & McH. 100 ; 101. 
 
 Browne v. Doughty, 4 Yeates 179 ; 59. 
 Brownell v. Brownell, 10 E. I. 509 ; 98. 
 Brownsword v. Edwards, 2 Ves. 247 ; 36. 
 Bruce v. Strickland, 81 N. C. 267 ; 411. 
 Bryan v. Batcheller, 6 E. I. 543 ; 385. 
 
 V. Bryan, 35 Ala. 290 ; 286. 
 
 Bryant v. Christian, 58 Mo. 98 ; 65. 
 
 V. McCune, 49 Mo. 546 ; 359. 
 
 Bubier v. Eoberts, 49 Me. 460 ; 351. 
 Buchanan v. Deshon, 1 H. & G. 280 ; 499. 
 
 V. Duncan, 40 Pa. Ste 88 ; 265. 
 
 Buchannan's Lessee v. Sheffer, 2 Yeates 374 ; 
 
 269, 307. 
 Buckeridge v. Ingram, 2 Ves. Jr. 651 ; 304. 
 Buckley v. Buckley, It'iBarb. 43 ; 208, 265. 
 Buckworth V. Thirkell, 3 B. & P. 652 ; 283, 308. 
 Buffum V. Hutchinson, 1 AUen 58 ; 54. 
 Buist V. Daws, 3 Eich Eq. 281 ; 367. 
 Bull V. Church, 5 Hill (N. Y.) 206, 2 Denio 
 
 430; 360. 
 Bullard v. Bowers, 10 N. H. 500 ; 325. 
 
 V. Briggs, 7 Pick. 533 ; 380. 
 
 Bunchi;. Hardy, 3 Lea543; 201. 
 Bunker v. Cook, 11 Mod. E. 122 ; 478. 
 Bunnell v. Evans, 26 Ohio 409 ; 197. 
 Burge V. Smith, 27 N. H. 332 ; 371. 
 Burgess v. Mawby, 1 T. E. 176 ; 103. 
 Burkart's Lessee v. Bucher, 2 Binn. 455 ; 95. 
 Burke v. Barron, 8 Iowa 132 ; 311. 
 
 V. Valentine, 52 Barb. 412 ; 289. 
 
 Burlingham v. Belding, 21 Wend. 463 ; 67. 
 Burnett V. Strong, 26 Miss. 116 ; 126. 
 Burridge v. Bradly, 1 P. Wms. 127 ; 369. 
 Burris v. Page, 12 Mo. 358 ; 266. 
 Burton v. Burton, 26 How. Pr. 474; , 303. 
 Busby V. Busby, 1 Dall. 226 ; 46, 57, 69. 
 
 V. Salter, 2 Preston's Ab. 164 ; 181. 
 
 Bush V. Bradley, 4 Day 298 ; 261, 264. 
 Butler V. Cheatham, 8 Bush 594; 315, 317. 
 
 V. Little, 3 Me. 239 ; 62, 63. 
 
 Buxton V. Uxbridge, 10 Mete. 87 ; 102, 103. 
 Buzick V. Buziok, 44 Iowa 259 ; 337. 
 
 Cabell V. Cabell's Adm'r, 1 Mete. (Ky.) 319 ; 
 
 388, 
 Cadell V. Palmer, 1 CI. & Fin. 372, 421 ; 178. 
 
Table op Cases Cited. 
 
 531 
 
 Caignet v. Pettit, 2 Dall. 234 ; 466. 
 Cain V. Cain, 23 Iowa 31 ; 360. 
 Cairns v. Chabert, 3 Edw. 312 ; 209, 210. 
 Calame v. Calame, 24 N. J. Eq. 440 ; 386. 
 Calder v. Bull, 2 Eoot 50 ; 332. 
 Caldwell v. Bower, 17 Mo. 564 ; 381. 
 
 V. Ferguson, 2 Yeates 380 ; 61. 
 
 Calhoun «. Cook, 9 Pa. St. 226; 201. 
 Callis r. Hemp, 11 Gratt. 78 ; 99. 
 Calmes v. McCrackeu, 8 S. Car. 87 ; 328. 
 Calver v. Harper, 27 Ohio St. 464 ; 329, 332. 
 Calvin's Case, 7 Co. 18 a ; 494. 
 Camden Mut. Ins. Ass'n v. Jones, 23 N. J. 
 
 Eq. 171 ; 353. 
 Camp V. Cleary, 13 Eeporter 381 ; 187. 
 Campbell v. Campbell, 5 Jones Eq. 246 ; 508. 
 
 V. CampbeU, 30 N. J. Eq. 415 ; 309, 329. 
 
 V. Carson, 12 S. & E. 54 ; 64. 
 
 V. Knights, 24 Me. 332 ; 314. 
 
 Canby v. Porter, 12 Ohio 79 ; 278. 
 Cannon v. Hare, 1 Tenn. Ch. 22; 208. 
 CantriU v. Eisk, 7 Bush 160 ; 383. 
 Care v. Keller, 77 Pa. St. 487 ; 389. 
 Carell v. Cuddington, Plow. 296 ; 103. 
 Carll V. Butman, 7 Me. 102 ; 314, 343. 
 Carlyle v. Cannon, 3 Eawle 489 ; 60. 
 Carmichael v. Carmichael, 5 Humph. 96; 
 
 389. 
 CamaU v. Wilson, 21 Ark. 62; 378, 393, 
 
 403, 404. 
 Cameal v. Banks, 10 Wheat. 181 ; 523. 
 Carnes v. Polk, 5 Heisk. 244 ; 216. 
 Caroon v. Cooper, 63 N. C. 386 ; 329. 
 Carpenter v. Davis, 72 111. 16 ; 284. 
 
 V. Westcott, 4 E. I. 225 ; 150. 
 
 Carr v. Brady, 64 Ind. 28 ; 411. 
 
 V. Estill, 16 B. Mon. 13 ; 200. 
 
 V. Green, 2 McCord 75 ; 66. 
 
 V. Jeannerett, 2 McCord 67 ; 66. 
 
 Carson v. Murray, 3 Paige 483 ; 379. 
 Carter v. Dale, 3 Lea 710 ; 269. 
 
 V. Denman, 3 Zab. 260 ; 301. 
 
 V. Goodin, 3 Ohio St. 75 ; 313, 343, 
 
 371. 
 
 V. Horner, 4 Mod. 89 ; 51. 
 
 V. McMichael, 10 S. & E. 429 ; 105. 
 
 V. New Mexico, 1 N. Mex. 317 ; 499. 
 
 Carter v. Eeddish, 32 Ohio St. 1 ; 66. 
 
 V. Tyler, 1 Call 144; 61, 107. 
 
 V. Walker, 2 Ohio St. 339 ; 313. 
 
 V. Williams, 8 Ired. Eq. 177 ; 268. 
 
 Casborn v. Scarfe, 1 Atk. 603 ; 267. 
 Cass V. Martin, 1 N.JH. 65 ; 346. 
 
 V. Martin, 6 N. H. 25 ; 314. 
 
 Cassanave v. Brooke, 3 Bland 267 ; 215. 
 Cassell V. Cooke, 8 S. & E. 268 ; 62, 66. 
 Caston V. Caston, 2 Eich. Eq. 1 ; 365. 
 Catlin V. Jackson, 8 Johns. 520 ; 460. 
 V. Ware, 9 Mass. 218 ; 371, 398, 399, 
 
 400. 
 Caufman v. Presbyterian Cong'n, 6 Binn. 59 ; 
 
 213. 
 Cauffinan v. Cauffinan, 17 S. &. E. 16 ; 364, 
 
 366. 
 Cauley v. Lawson, 5 Jones Eq. 132 ; 352. 
 Cavender v. Smith, 8 Iowa 360 ; 332, 392. 
 Chaffee v. Dodge, 2 Eoot 205 ; 54. 
 Chalker v. Chalker, 1 Conn. 79 ; 143. 
 Chamberlain v. Owings, 30 Md. 447 ; 60. 
 Chandler v. Woodward, 3 Harring. 428 ; 360. 
 Chapin v. Harris, 8 Allen 594 ; 124, 187. 
 
 V. HUl, 1 E. I. 446 ; 368. 
 
 V. First Universalist Soc, 18 Gray 580 ; 
 
 54. 
 
 V. School Dist. No. 2, 35 N. H. 445 ; 1 26. 
 
 Chaplin v. ChapUn, 3 P. Wms. 229; 103, 
 
 226. 
 
 V. Simmons, 7 T. B. Mon. 337 ; 403. 
 
 Chapman v. Brown, 3 Burr. 1634 ; 429. 
 
 V. Gordon, 29 Ga. 250 ; 126. 
 
 V. Pingue, 67 Me. 198 ; 136. 
 
 V. Schroeder, 10 Ga. 321 ; 305, 389. 
 
 Chappel V. Brewster, Kirby 175 ; 94. 
 Chase v. Hazleton, 7 N. H. 171 ; 211. 
 Chase's Case, 1 Bland 206 ; 383. 
 Chatham v. Sleigh, Lev. 67 ; 488. 
 Cheek v. Waldrum, 25 Ala. 152 ; 332. 
 Chesebro v. Schoolcraft, 25 Wend. 633 ; 203. 
 Chesnut v. Shane, 16 Ohio 599 ; 373, 374. 
 Chew V. Corn's of Southwark, 5 Eawle 160 ; 
 
 265, 267. 
 
 V. Farmers' Bank, 9 Gill. 361 ; 370. 
 
 Chew's App., 45 Pa. St. 228 ; 128. 
 Chicago Dock Co. v. Kinzie, 49 111; 289 ; 393. 
 
532 
 
 Table of Cases Cited. 
 
 Childers v. Bumgamer, 8 Jones N. C. L. 
 
 297; 265; 
 Childs V. Smith, 1 Md. Ch. 483 ; 407. 
 Chiles V. Bartleson, 21 Mo. 344 ; 202. 
 Chinnubblee v. Nicks, 3 Port. 862 ; 311. 
 Chirac v. Chirac, 2 Wheat. 259 ; 523. 
 Christie v. Gage, 5 Lans. 139 ; 57. 
 Church V. Disbrow, 52 Pa. St. 219 ; 69. 
 Church V. Wyatt, Moore 637 ; 78, 80, 87. 
 Claiborne v. Calhoun, 58 Ga. 274 ; 403. 
 
 V. Henderson, 3 H. & M. 322 ; 312. 
 
 Clanrickard v. Sidney, Hob. 272, 282 ; 488. 
 Clapp V. Stoughton, 10 Pick. 463 ; 143. 
 Clark V. Baker, 3 S. & K. 470 ; 96, 97. 
 V. Battorf, 1 T. & C. (N. Y. S. C.) 58 ; 
 
 306. 
 
 V. Clark, 24 Barb. 581 ; 289. 
 
 II. Griffith, 4 Iowa 405; 359. 
 
 J). Martin, 49 Pa. St. 289; 134,147,149. 
 
 V. Mikel, 3 Des. Eq. 168 ; 60. 
 
 V. Monroe, 14 Mass. 351 ; 328. 
 
 V. O'Donagby, 7 Johns. 247 ; 405. 
 
 V. Eedman, 1 Blackf. 410 ; 371. 
 
 V. Eichardson, 32 Iowa 399 ; 402. 
 
 V. Tompkins, 1 S. Car. 119 ; 405. 
 
 Clarke's App., 79 Pa. St. 376 ; 279. 
 Clay V. Hart, 7 Dana 1 ; 366. 
 
 V. Sanders, 43 Ala. 287 ; 404. 
 
 Clay's Heir v. Clay, 26 Tex. 24 ; 522. 
 Clayton v. Clayton, 3 Binn. 476 ; 58, 63. 
 Qearwater i;. Eose, 1 Blackf. 137 ; 54, 195. 
 Clements v. Bostwick, 38 Ga. 1 ; 347. 
 Clerk V. Day, Cro. Eliz. 313 ; 78. 
 Clifton V. Haig, 4 Des. 330 ; 409, 506. 
 Clough V. EUiott, 23 N. H. 182 ; 344. 
 Clute V. MiUer, 2 Cow. 439 ; 252. 
 Clyat V. Batteson, 1 Vern. 404 ; 215. 
 Coates V. Cheever, 1 Cow. 460; 206, 305, 
 
 306, 342. 
 Cochran v. Cochran, 2 Des. 521 ; 207. 
 
 V. O'Heam, 4 W. & S. 95 ; 270, 274. 
 
 Cochrane v. Libby, 18 Me. 39 ; 316. 
 Cocke V. Bailey, 42 Miss. 8 ; 347. 
 Cocker's Ex. v. Philips, 12 Leigh 248 ; 317. 
 Cockrill V. Armstrong, 31 Ark. 580 ; 309, 
 
 321, 390. 
 V. Maury, 2 Tenn. Ch. 49 ; 65. 
 
 Coffin V. Smith, 2 H. Bl. 444 ; 479, 480, 483. 
 Coggeshall v. Felton, 7 Johns. Ch. 292 ; 459. 
 Cogswell V. CogsweU, 2 Edw. 231 ; 209. 
 
 V. Lippett, 3 N. H. 41 ; 384. 
 
 Coles V. Coles, 15 Johns. 319 ; 314. 
 Colgate V. Colgate, 23 N. J. Eq. 372 ; 361. 
 Collins V. Carlisle, 7 B. Mon. 13 ; 199. 
 
 V. Carman, 5 Md. 503; 368. 
 
 V. Torrey, 7 Johns. 278 ; 314, 317, 342. 
 
 W.Woods, 63111. 285; 370. 
 
 Collins M'fg Co. v. Marcy, 25 Conn. 242; 
 
 134, 139. 
 Colman v. De Wolf, 53 Ind. 428 ; 411. 
 Colvin V. Currier, 22 Barb. 371 ; 289. 
 Combs V. Young, 4 Yerg. 218 ; 349. 
 Comer v. Chamberlain, 6 Allen 166 ; 287. 
 Comly V. Strader, 1 Ind. 134; 408. 
 Commissioners of Charitable Donations v. De 
 
 Cliffijrd, 1 Dru. & War. 245 ; 179. 
 Commonwealth v. Andre's Heirs, 3 Pick. 
 
 224; 509. 
 
 V. Bristow, 6 Call 60 ; 496. 
 
 V. Chapman, 1 Dall. 53 ; 466, 471. 
 
 V. Stauffer, lO'Pa. St. 350 ; 129, 189. 
 
 Conant v. Little, 1 Pick. 189 ; ■ 394. 
 Condict's Ex'rs v. King, 2 Beas. 375 ; 98. 
 Congregational Soc. of Halifax v. Stark, 34 
 
 Vt. 243; 137. 
 Oonklin v. Conklin, 3 Sandf. Ch. 64; 181. 
 Conly V. Porter, 12 Ohio 79 ; 252. 
 Connell v. Connell, 6 Ohio 353 ; 373. 
 Connelly v. Bransiter,' 3 Bush 702 ; 378. 
 Conner v. Shepherd, 15 Mass. 164 ; 304, 305. 
 Connolly v. Smith, 21 Wend. 59 ; 303. 
 Conoway v. Piper, 3 Harring. 482; 197. 
 Contee v. Godfrey, 1 Cr. C. C. 479 ; 506. 
 Cook V. Cook, 11 Gray 123 ; 211, 407. 
 
 !/. Holmes, 11 Mass. 528; 63,67. 
 
 V. Walker, 70 Me. 232 ; 309, 395. 
 
 Cook's Ex. V. Cook's Adm'r, 20 N. J. Eq. 
 
 375; 397. 
 Coomes v. Clements, 4 Har. & J. 480 ; 370. 
 Cooper V. Adams, 6 Cush. 87 ; 208. 
 
 V. Frankling, 1 EoU. 384 ; 488, 489. 
 
 V. Slower, 9 Johns. 331 ; 224, 225. 
 
 V. Tabor, 8 W. N. C. 341 ; 338. 
 
 Copeland v. Copeland, 7 Bush 349 ; 304. 
 
Table of Cases Cited. 
 
 533 
 
 Coppage V. Alexander, 2 B. Mon. 313 ; 130. 
 Corbett v. Laurens, 5 Kich. Eq. 301 ; 208. 
 Corbin v. Healy, 20 Pick. 614 ; 96, 104. 
 Com V. Norcross, 9 Mass. 492 ; 252. 
 Cornelius ». Ivins, 2 Dutch. 376; 131, 143. 
 Cornish v. Mew, 1 Cas. Ch. 271 ; 215. 
 Corriell v. Ham, 2 Iowa 552; 360, 369. 
 Coster V. Clarke, 3 Edw. 428 ; 310. 
 
 V. Lorillard, 14 Wend. 314 ; 320. 
 
 Cotterell v. Button, 4 Taunt. 830 ; 225. 
 Coulter V. Holland, 2 Hairing. 330 ; 397. 
 Countz V. Markling, 30 Ark. 17 ; 379. 
 Courtney v. Turner, 12 Nev. 345 ; 500. 
 
 Covert V. Hertzog, 4 Pa. St. 145; 339. 
 
 V. Eobinson, 46 Pa. St. 274 ; 99. 
 
 Cowell W.Colorado Springs Co., 3 CoL 82; 134 
 
 Cowman v. HaU, 3 G. & J. 398 ; 320. 
 
 Cowper V. Cowper, 2 P. Wms. 741 ; 36. 
 
 Cox V. Bird, 65 Ind. 277 ; 127. 
 
 V. Jaggar, 2 Cow. 644 ; 393. 
 
 V. Wells, 7 BlacM. 410 ; 371. 
 
 V. WUder, 2 DiUon 45 ; 382. 
 
 Coxe V. Mcllvain, 2 Cr. 280; 504. 
 
 Ciabbe v. Pratt, 15 Ala. 843 ; 311, 312. 
 
 Crafts V. Crafts, 2 McCord 54 ; 327. 
 
 Craig V. LesUe, 3 Wheat. 563; 499, 500, 
 512. 
 
 ». Eadford, 3Wheat. 594; 499. 
 
 V. Watt, 8 Watts 498 ; 214. 
 
 Craig's Heirs v. Walthall, 14 Gratt. 518 ; 
 
 365, 366. 
 •Craige v. Morris, 25 N. J. Eq. 467 ; 404. 
 
 Crane v. Pahner, 8 Blackf. 120 ; 347. 
 
 V. Keeder, 21 Mich. 24 ; 509, 524. 
 
 Cranson v. Cranson, 4 Mich. 230 ; 330. 
 
 Craven v. Craven, 2 Dev. Eq. 338; 3^59, 
 366. 
 
 V. Winter, 38 Iowa 471 ; 410. 
 
 Creacraft v. Dille, 3 Yeates 79, Addison 350 ; 
 362. 
 
 Crecelius v. Horst, A Mo. App. 419 ; 
 369. 
 
 Cribb V. Eogers, 12 S. Car. 564 ; 56. 
 
 Criley v. Chamberlain, 30 Pa. St. 161 
 
 Crittenden u. Johnson, 11 Ark. 94; 
 349. 
 
 V. Woodruff, 11 Ark. 82; 338, 349, 
 
 45* 
 
 327, 
 
 98. 
 317, 
 
 Crittenden v. Woodruff, 14 Ark. 465 ; 392. 
 Croade v. Ingraham, 13 Pick. 33 ; 393. 
 Crocker v. Fox, 1 Root 227 ; 332. 
 Crommelin v. Minter, 9 Ala. 594 ; 250, 254. 
 Cromwell's Case, 2 Co. 71 a; 124. 
 Crosky v. Dodds, 87 Pa. St. 359 ; 61. 
 Cross V. Carson, 8 Blackf. 138 ; 140. 
 
 V. De Valle, 1 Cliff. 282, 1 Wall. 5; 
 
 499, 510. 
 Crouch V. Puryear, 1 Eand. 258 ; 206. 
 Crozier's App., 90 Pa. St. 384 ; 367, 368. 
 Crumb v. Davis, 54 Iowa 22 ; 347. 
 Crumley v. Deake, 8 Baxt. 361 ; 262. 
 Cryer v. Andrews, 11 Tex. 170 ; 522. 
 Cuffee V. Milk, 10 Mete. 366 ; 98. 
 Culberson v. Culberson, 37 Ga. 296 ; 352. 
 Culbertsonw.Duly, 7W. &S. 195; 59. ! 
 CuUey V. Doe, 11 Ad. & Ell. 1008 ; 265. 
 Cummings v. Shaw, 108 Mass. 159 ; 199. 
 Cummings' Ex. v. Daniel, 9 Dana 361 ; 367. 
 Cunningham v. Knight, 1 Barb. 399 ; 325. 
 
 V. Shannon, 4 Eich. Eq. 135 ; 359. 
 
 Currin v. Finn, 3 Den. 229 ; 302, 303, 519. 
 Curry v. Bott, 53 Pa. St. 400 ; 279. 
 
 V. Curry, 17 N. Y. S. C. 367 ; 353. 
 
 Curtis V. Gardner, 13 Mete. 457 ; 53. 
 
 V. Hobart, 41 Me. 230 ; 394, 395. 
 
 V. Longstreth, 44 Pa. St. 297 ; 98. 
 
 Cushing V. Blake, 29 N. J. Eq. 399 ; 271. 
 V. Blake, 30 N. J. Eq. 686 ; 266, 271. 
 
 D. 
 
 Dabney v. Bailey, 42 Ga. 521 ; 364. 
 Dakin v. WiUiams, 17 Wend. 447 ; 147. 
 Daniel v. Manama, 1 Bush 544 ; 66. 
 
 V. Thomson, 14 B. Mon. 662 ; 99, 111. 
 
 Dart V. Dart, 7 Conn. 250 ; 98. 
 Dartmouth Col. v. Woodward, 4 Wheat. 518 ; 
 
 460. 
 Dash V. Van Cleek, 7 Johns. 477 ; 460. 
 Davenhill v. Fletcher, Ambler 244 ; 369. 
 Davenport v. Farrar, 1 Scam. 314 ; 311, 315. 
 
 V. Harris, 3 Grant 164 ; 189. 
 
 Davidson v. Graves, 1 Bail. Eq. 268 ; 382. 
 Davies v. Miller, 1 Call 127 ; 63. 
 Davis V. Bartholomew, 3 Ind. 485 ; 371. 
 
534 
 
 Table op Cases Cited. 
 
 Davis V. Bawcum, 10 Heisk. 406 ; 73. 
 
 V. Bennett, 2 P. Wms. 316 ; 274. 
 
 V. Darrow, 12 Wend. 65 ; 302, 317. 
 
 V. Davis, 5 Mo. 184 ; 334. 
 
 V. Davis, 11 Ohio St. 386 ; 365. 
 
 ». Logan, 9 Dana 185 ; 309, 317. 
 
 V. Mason, 1 Peters 503 ; 252, 264. 
 
 V. McDonald, 42 Ga. 205 ; 378. 
 
 V. O'Ferrall, 4 G. Greene 358; 311, 
 
 408. 
 Davol V. Rowland, 14 Mass. 219 ; 387. 
 Dawson's Lessee v. Godfrey, 4 Cr. 321 ; 475, 
 
 504. 
 Day V. Cochran, 24 Miss. 261 ; 264, 278. 
 
 V. Murdoch, 1 Munf. 460 ; 511. 
 
 V. Solomon, 40 Ga. 32 ; 331. 
 
 V. West, 2 Edw. 592 ; 386, 388. 
 
 Dean v. Nunnally, 36 Miss. 358 ; 65. 
 Dean's Heir «. Mitchell's Heirs, 4 J. J. Mar. 
 
 451; 320,324. 
 Dearborn v. Taylor, 18 N. H. 153 ; 342. 
 Deboe v. Lowen, 8 B. Mon. 616 ; 61, 111. 
 Deering v. Adams, 37 Me. 264 ; 64. 
 Deforest's App., 1 Eoot 50 ; 299. 
 Defraunce v. Brooks, 8 W. & S. 67 ; 55. 
 De Gray v. Eichardson, 3 Atk. 469 ; 225, 
 
 240. 
 De Hart v. Dean, 2 McA. 60 ; 269. 
 Dejarnatte v. Allen, 5 Gratt. 499 ; 211. 
 Delay v. Vinal, 1 Mete. 57 ; 363, 365. 
 De Lisle v. Hubs, 32 N. Y. S. C. 485 ; 343. 
 Demarest v. Wyncoop, 3 Johns. Ch. 136; 
 
 224, 236, 237. 
 De Mill V. Lockwood, 3 Blatch. 56 ; 114. 
 Den V. Crawford, 3 Hals. 90 ; 195, 202. 
 
 V. Hopper, 2 Zab. 599 ; 26. 
 
 V. Eobinson, 2 South. 689; 104, 106, 
 
 107. 
 ex d. Bayard v. Singleton, 1 Mart. 
 
 (N. C.)48; 500. 
 ex d. Blount v. Homiblea, 2 Hayes 36 ; 
 
 499. 
 ex d. Bolton v. Bowne, 3 Harr. (N. J.) 
 
 210; 61. 
 
 ex d. Burges v. Purvis, 1 Burr. 326 ; 489. 
 
 ex d. Copeland v. Sauls, 1 Jones (N. C.) 
 
 L. 70; 275. 
 
 Den ex d. Crane v. Fogg, Penn. (N. J.) 819 ; 
 
 97. 
 ex d. Davidson v. Frew, 3 Dev. L. 3 ; 
 
 336. 
 ex d. Evans o. Cox, 4 Hals. 10 ; 98, 
 
 100, 101. 
 ex d. Hallowell v. Kornegay, 7 Ired. L. 
 
 261; 66. 
 
 ex d. Halsey v. Dodd, 1 Hals. 367 ; 392. 
 
 ex d. Hatch -i). Thompson, 3 Dev. L. 
 
 411 ; 196. 
 ex d. Hinchman v. Clark, Coxe (N. J.) 
 
 340, 103. 
 
 ex d. Holcomb v. Lake, 4 Zab. 686 ; 97. 
 
 ex d. Hughes o. Shaw, M. & Y. 323; 
 
 334. 
 ex d. Jacocks v. GiUiam, 3 Murph. 47 ; 
 
 108. 
 ex d. James v. Dubois, 1 Harr. (N. J.) 
 
 285; 94,113,114. 
 ex d. Miller v. Miller, 1 South. 321 ; 
 
 395, 396. 
 ex d. Eoberts v. Forsythe, 3 Dev. L. 26 ; 
 
 53, 54, 195. 
 ex d. Eutherford's Heirs v. Wolfe, 3 
 
 Hawks 272; 508. 
 ex d. Sanders v. Hyatt, 1 Hawks 247 ; 
 
 99. 
 ex d. Smallwood v. Bilderback, 1 Harr. 
 
 (N.J.) 497; 405. 
 ex d. Smith v. Hance, 6 Hals. 244 ; 
 
 189. ' 
 
 — — ex d. Snell d. Young, 3 Ired. L. 379 ; 
 
 57, 195. 
 — — ex d. Spaohius v. Spachius, 1 Harr. 
 
 (N.J.) 172; 113. 
 ex d. Stewart v. Johnson, 3 Harr. 
 
 (N. J.) 87 ; 382. 
 ex d. Taylor v. Fen & Parsley, 3 Hawks 
 
 125; 335. 
 ex d. Trustees of University v. Miller, 
 
 3 Dev. 188; 499,510. 
 ex d. Williams v. Bennett, 4 Ired. L. 
 
 123; 402. 
 ex d. Wilson v. Small, Spen. (N. J.) 
 
 151, 100. 
 Denbon y. Murray, 8 Barb. 618 ; 314. 
 
Table of Cases Cited. 
 
 535 
 
 Denny v. McCabe, 35 Ohio 576 ; 288. 
 
 Denson v. Mitchell, 26 Ala. 360 ; 199. 
 
 De Peyster v. Michael, 6 N. Y. 467 ; 183, 
 
 150. 
 Derush v. Brown, 8 Ohio 412 ; 320. 
 *Devenish's Lessee v. Smith, 1 H. & M. 148 ; 
 
 66. 
 Dewey v. Williams, 40 N. H. 222 ; 142. 
 Dewitt V. Eldred, 4 W. & S. 414; 68, 101, 
 
 103. 
 Dewy V. Brown, 2 Pick. 387 ; 490. 
 Dice V. Sheffer, 3 W. & S. 419 ; 60. 
 Dick V. Doughten, 1 Del. Ch. 320 ; 333. 
 
 V. Hamilton, Deady 322 ; 380. 
 
 V. Pitchford, 1 Dev. & Bat. Eq. 480 ; 
 
 131. 
 Dickens v. Marshal, Cro. Eliz. 830; 38, 
 
 45. 
 Dickey v. McCullough, 2 W. & S. 88 ; 146. 
 DiUinger's App., 85 Pa. St. 357 ; 380. 
 Directors of the Poor v. Eoyer, 43 Pa. St. 
 
 146; 836. 
 Dixon V. McCue, 14 Gratt. 540 ; 363, 365. 
 Doak V. Wiswell, 38 Me. 519 ; 208. 
 Dodge V. Ayerigg, 1 Beas. Eq. 82 ; 375. 
 Dodson V. Davis, 2 Yeates 168 ; 310. 
 Doe V. Acklam, 2 Barn. & Cresw. 779 ; 482, 
 
 436, 467, 469, 476. 
 
 V. Acklar, 7 Wheat. 535 ; 503. 
 
 V. Allen, 3 Taunt. 78 ; 118. 
 
 V. Harter, 7 Blackf. 488 ; 59, 67. 
 
 V. Button, 3 B. & C. 653 ; 307, 308. 
 
 V. Martin, 4 T. E. 39 ; 32. 
 
 V. Pearson, 6 East. 173 ; 118. 
 
 V. Smith, 6 East. 535 ; 192. 
 
 Doe ex d. Caillaret v. Bernard, 7 Sm. & M. 
 
 319; 404. 
 ex d. Cook v. Webb, 18 Ala. 814 ; 392, 
 
 404. 
 ex d. Doremus v. Zabriskie, 15 N. J. L. 
 
 404; 101. 
 ex d. Duroure v. Jones, 4 T. E. 300 ; 
 
 462. 
 
 ex d. Evans v. Davis, 1 Yeates 332 ; 99, 
 
 103. 
 
 ex d. Governeur's Heirs v. Eobertson, 
 
 11 Wheat. 332 ; 499. 
 
 Doe ex d. Harrington v. Dill, 1 Houst. 398 ; 
 
 68, 69. 
 ex d. Holt V. Horrocks, 1 C. & K. 566; 
 
 265. 
 ex d. Huddleston v. Lazenby, 1 Ind. 
 
 234; 503. 
 ex d. Planner v. Scudamore, 2 Bos. & 
 
 Pul. 297 ; 168. 
 
 ex d. See v. Craigen, 8 Leigh 449 ; 99. 
 
 ex d. Smith v. Grady, 2 Dev. L. 395 ; 
 
 196. 
 Dolan V. Baltimore, 4 Gill 394; 128, 140, 
 
 142. 
 Dolf V. Basset, 15 Johns. 21 ; 316, 399. 
 Donald v. Portis, 42 Ala. 29 ; 867. 
 Donnelly v. Donnelly, 8 B. Mon. 113 ; 301, 
 
 .302. 
 Donoghue v. Chicago, 57 111. 285 ; 396. 
 Donohue v. McNichol, 61 Pa. St. 73 ; 136. 
 Donovan v. Donovan, 4 Plarring. 177 ; 59. 
 Dorchester v. Coventry, 11 Johns. 510 ; 399. 
 Dorr V. Harrahan, 101 Mass. 531 ; 134, 149. 
 Dorsey v. Dorsey, 1 Chand. L. 287 ; 251. 
 
 V. Smith, 3 Bland 271 ; 215. 
 
 V. Smith, 7 H. & J. 345 ; 407. 
 
 Dougal V. Fryer, 3 Mo. 40 ; 132. 
 Dougald V. Hepburn, 5 Fla. 568; 313. 
 Dougherty v. Monett, 5 G. & J. 459 ; 202. 
 Doughty v. Browne, 4 Yeates 179 ; 63. 
 Douglas V. Feay, 1 W. Va. 26 ; 359, 361. 
 Douglass V. Dickson, 11 Eich. L. 417 ; 325. 
 Dougrey v. Topping, 4 Paige 94 ; 391. 
 Dow V. Dow, 36 Me. 211 ; 304. 
 Doyle V. MuUady, 38 Pa. St. 264 ; 103. 
 Drake !•. Eamsay, 5 Ohio 252 ; 376. 
 Draper v. Baker. 12 Cush. 288 ; 314. 
 Drennan v. Walker, 21 Ark. 589 ; 311. 
 Drummond v. Drummond, 40 Me. 35 ; 348. 
 Drury v. Drury, 2 Eden 39 ; 355. 
 Drusadow v. Wilde, 63 Pa. St. 170 ; 60. 
 Drybutter v. Bartholomew, 2 P. Wms. 127 ; 
 
 304. 
 Dubber v. Trollop, 8 Vin. 233 pi. 13; 78, 
 
 82, 96. 
 Dubs V. Dubs, 31 Pa. St. 149 ; 263, 272. 
 Dudley v. Grayson, 6 T. B. Mon. 269 ; 499. 
 Duer V. Boyd, 1 S. & E. 208 ; 95. 
 
536 
 
 Table of Cases Cited. 
 
 Dugan V. Massey, 6 Bush 81 ; 382. 
 Duhring v. Duhring, 20 Mo. 174 ; 309. 
 Duke V. Brandt, 51 Mo. 221 ; 323. 
 of Cumberland v. Graves, 7 N. Y. 305 ; 
 
 518. 
 — — of Norfolk V. Howard, 1 Vern. 164; 
 
 180. 
 Dumely v. Schoeffler, 24 Mo. 170 ; 129. 
 Dumoud V. Stringham, 26 Barb. 104 ; 68. 
 Dunbar v. Stickler, 45 Iowa 384 ; 126. 
 Duncan v. Dick, "Walk. (Miss.) 281 ; 408. 
 
 V. Duncan, 2 Yeates 302 ; 365. 
 
 Duncan's App., 43 Pa. St. 67 ; 331. 
 
 Lessee v. Walker, 2 Dall. 205 ; 311. 
 
 Dundaa v. Hitchcock, 12 How. 256 ; 373, 
 
 376. 
 Dunham v. Osbom, 1 Paige 634 ; 266, 317. 
 Dunning v. Van Dusen, 47 Ind. 423 ; 199. 
 
 V. Wherren, 19 N. H. 9 ; 114. 
 
 Dunscomb V. Dunscomb's Exrs., 1 Johns. Ch. 
 
 508; 265,280. 
 Dunseth v. Bank U. S., 6 Ohio 76 ; 399. 
 Durando v. Durando, 23 N. Y. 331 ; 317, 
 
 319. 
 Durham v. Angier, 20 Me. 242 ; 389, 390. 
 
 V. Ehodes, 23 Md. 233 ; 363, 368. 
 
 Durkee v. Felton, 44 Wise. 467 ; 406. 
 Dustin V. Steele, 27 N. H. 431 ; 371. 
 Duval V. Febiger, 1 Cincin. 268 ; 314. 
 Dwyer v. Garlough, 31 Ohio St. 158 ; 338. 
 
 E. 
 
 Earl V. Grim, Johns. Ch. 494 ; 60. 
 Eastman v. Batchelder, 36 N. H. 141 ; 128. 
 Eaton V. Simonds, 14 Pick. 98 ; 343. 
 Eberle v. Fisher, 13 Pa. St. 526 ; 338. 
 Ebey v. Ebey, 1 Wash. Terr, 185 ; 311. 
 Edmondson v. Montague, 14 Ala. 370 ; 312. 
 
 V. Welsh, 27 Ala. 578 ; 317, 325. 
 
 Edwards v. Bibb, 54 Ala. 475 ; 350. 
 
 V. Bishop, 4 Comst. (N. Y.) 61; 66, 
 
 199. 
 
 V. Sullivan, 20 Iowa 500 ; 371. 
 
 Edwai-dsviUe R. E. v. Sawyer, 92 111. 377 ; 
 
 53. 
 Ege V. Medlar, 82 Pa. St. 86 ; 275, 279. 
 
 Egerton v. Earl Brownlow, 4 H. L. Cas. 1 ; 
 
 182. 
 Eichelberger v. Barnitz, 9 Watts 447; 98. 
 Ela V. Card, 2 N. H. 175 ; 375. 
 Eldon V. Wynn, 6 Blackf. 341 ; 516. 
 Eldridge v. Eldridge, 1 McCart. 195 ; 344. ' 
 
 V. Forestal, 7 Mass. 253 ; 266, 317. 
 
 V. Knott, Cowp. 215 ; 80. 
 
 Ellet V. Paxson, 2 W. & S. 418 ; 69. 
 Ellicott V. Welch, 2 Bland Ch. 242 ; 347. 
 Ellinger v. Crowl, 17 Md. 361 ; 380. 
 EUiot V. Smith, 2 N. H. 430 ; 205. 
 Elliott V. Pearsall, 8 W. & S. 38 ; 103. 
 
 •;;. Piersol, 1 Pet. 328; 372, 373. 
 
 Ellis V. Diddy, 1 Ind. 561 ; 349. 
 Ellsworth V. Cook, 8 Paige 643 ; 265, 280. 
 Elmendorf v. Lockwood, 4 Lans. 393, 57 
 
 N. Y. 322; 381. 
 Elmondorffw. Carmichael, 3 Lit. 472; 500. 
 Elwood V. Klock, 13 Barb. 60 ; 373. 
 Embree v. Ellis, 2^ Johns. 119 ; 405. 
 Emerson t». Harries, 6 Mete. 475 ; 317. 
 
 V. Simpson, 43 N. H. 475 ; 137. 
 
 English V. English, 2 Green Ch. 504 ; 365. 
 Episcopal City Mission v. Appleton, 117 Mass. 
 
 326; 124. 
 Eslava v. Lepretre, 21 Ala. 504 ; 326, 377. 
 Etheridge v. Malempre, 18 Ala. 565 ; 512, 
 
 513. 
 Ettenheimer v. Heffernan, 66 Barb. 374; 
 
 509. 
 Evans v. Evans, 9 Pa. St. 190 ; 307. 
 
 V. Evans, 29 Pa. St. 277 ; 350. 
 
 V. Evans; 3 Yeates 424 ; 360. 
 
 V. Webb, 1 Yeates 507 ; 379. 
 
 Ewer V. Strickland, Cro. Jac. 240 ; 117. 
 Ex parte McElwain, 29 lU. 442 ; 377. 
 V. Palmer, 2 Hill Ch. 217 ; 208. 
 
 F. 
 
 Fairfax's Heir v. Hunter, 7 Cr. 603 ; 499, 
 
 502. 
 Fairman v. Beal, 14 lU. 244 ; 65, 199. 
 Farnsworth v. Cole, 42 Wise. 403 ; 405. 
 Famum v. Loomis, 2 Oreg. 29 ; 315, 317. 
 Farrar v. Ayres, 5 Pick. 404; 67, 198. 
 
Table of Cases Cited. 
 
 537 
 
 Farrar v. Dean, 24 Mo. 16 ; 509. 
 Farrell v. Enright, 12 Cal. 450 ; 513. 
 Fairington v. Wilson, 29 Wise. 383 ; 133, 
 
 137. 
 Farrow v. Farrow, 1 Del. Ch. 457 ; 352, 355. 
 Felcli V. Finch, 52 Iowa 563 ; 389, 393. 
 Felton V. Billups, 1 Dev. & Bat. 584 ; 202. 
 Fenton v. Foster, Dyer 307 b ; 194. 
 
 V. Eeed, 4 Johns. 53 ; 252. 
 
 V. Eeed, 16 Mass. 157 ; 252, 302. 
 
 Ferguson v. Tweedy, 56 Barb. 168 ; 264. 
 Ferguson's Lessee v. Zepp, 4 Wash. C. C. 645 ; 
 
 60, 62, 198. 
 Ferris v. Gibson, 4 Edw. Ch. 707 ; 181. 
 
 V. Smith, 17 Johns. 221 ; 66. 
 
 Finch V. Finch, 10 Ohio St. 501 ; 353. 
 Fiudlay v. Smith, 6 Munf. 134; 212. 
 Findley's Ex. v. Findley, 11 Gratt. 434 ; 352. 
 Finlay v. King, 3 Pet. 346 ; 126, 401. 
 
 V. Eiddle, 3 Binn. 162 ; 429. 
 
 Fiott !). Conmionwealth, 12 Gratt. 564 ; 524. 
 Firestone v. Firestone, 2 Ohio St. 415 ; 347. 
 Fish V. Fish, 1 Conn. 559; 314, 331. 
 
 V. Kline, 2 Mer. 432 ; 275. 
 
 Fisher v. Grimes. 1 S. & M. Ch. 107 ; 306. 
 Fisk V. Chandler, 30 Me. 82 ; 141. 
 
 V. Eastman, 5 N. H. 240 ; 266, 317. 
 
 Flack V. Longmate, 8 Beav. 420 ; 322. 
 
 Flag V. Bean, 25 N. H. 49 ; 280. 
 
 Fleesou v. Nicholson, Walker (Miss), 247 ; 
 
 311, 336. 
 Fleet V. Dorland, 11 How. Pr. 489 ; 209, 210. 
 Flinn v. Barber, 64 Ala. 193 ; 347. 
 Flintham's App., 11 S. & E. 18 ; 65. 
 Floyd V. Hodge, 10 Eich. 157 ; 349. 
 Flud V. Flud, 2 Freem. 210 ; 215. 
 Fogg V. Clark, 1 N. H. 163 ; 59, 60. 
 Fondar v. Sage, 46 Barb. 109 ; 142, 143. 
 Fontaine v. Boatmen's Ins., 57 Mo. 552; 
 
 325, 327. 
 Forbes v. Sweesy, 8 Neb. 620 ; 285, 288. 
 Forrest v. Forrest, 6 Duer 102 ; 386. 
 Forsaith v. Clark, 21 N. H. 409 ; 59. 
 Forsey v. Luton, 2 Head 183 ; 203. 
 Fosdick V. Gooding, 1 Me. 30; 397. 
 Poss V. Crisp, 20 Pick. 121 ; 275. 
 Foster v. Dwinel,. 49 Me. 44 ; 317, 322. 
 
 Foster v. Gordon, 49 Me. 54; 323. 
 
 V. Hilliard, 1 Story 77 ; 216. 
 
 V. Marshall, 22 N. H. 491; 259, 279, 
 
 282, 284. 
 
 V. Stewart, 18 Pa. St. 23 ; 60. 
 
 Foster's Lessee v. Joice, 3 Wash. C. C. 498 ; 
 
 54, 196. 
 Fourdrin v. Gowdey, 3 M. &. K. 401; 275. 
 Fowler v. McClurg, 6 S. & E. 143 ; 373. 
 
 V. Shearer, 7 Mass. 14 ; 370, 371, 374. 
 
 Fox V. Long, 8 Bush 551 ; 210. 
 
 V. Phelps, 17 Wend. 393 ; 62, 67. 
 
 V. Pratt, 27 Ohio St. 514; 332. 
 
 V. Southack, 12 Mass. 143 ; 499," 524. 
 
 Foxwell V. Craddock, 1 Pat. &. H. 250 ; 501. 
 
 France'sEst., 75Pa. St. 220; 60. 
 
 Frank & Lucy v. Denham, 5 Litt. Eep. 530 ; 
 
 255. 
 Frantz v. Harrow, 13 Ind. 507 ; 409. 
 Frazer v. Hightower, 12 Heisk. 94 ; 272. 
 Prazier v. Hassey, 43 Ind. 310 ; 199. 
 Frazier's Trustees v. Centre, 1 McCord Ch. 
 
 279; 326. 
 Frederick v. Gray, 10 S. & E. 183 ; 140. 
 Freeland v. Freeland, 128 Mass. 509 ; 354. 
 
 V. Mandeville, 28 N. Y. Eq. 559 ; 362. 
 
 Freeman v. Freeman, 2 Vem. 233 ; 117. 
 Freemoult v. Dedire, 1 P. Wms. 429 ; 215. 
 French v. Crosby, 61 Me. 502; 381. 
 
 V. Davies, 2 Ves. Jr. 572 ; 363. 
 
 V. Lord, 69 Me. 537 ; 332, 381. 
 
 V. Mcllhenny, 2 Binn. 13 ; 37, 39, 42, 
 
 51, 52, 58, 60. 
 
 V. Old South Soc, 106 Mass. 479 ; 132. 
 
 V. Peters, 33 Me. 396 ; 375, 397. 
 
 V. Pratt, 27 Me. 381 ; 397, 398, 402. 
 
 V. EoUins, 21 Me. 372 ; 281. 
 
 Fritz V. Tudor, 1 Bush 28 ; 399. 
 Frogmorton v. Holyday, 3 Buit. 1622 ; 36. 
 
 V. Wright, 3 Wils. 418 ; 38. 
 
 Frost V. Butler, 7 Greenl. 225 ; 127, 147. 
 
 V. Cloutman, 7 N. H. 9 ; 113. 
 
 V. Deering, 21 Me. 156 ; 372, 375. 
 
 V. Etheridge, 1 Dev. L. 30 ; 336. 
 
 V. Peacock, 4 Edw. 678 ; 340. 
 
 Fry V. Merchants' Ins. Co., 15 Ala. 810 ; 342. 
 V. Smith, 2 Dana 40 ; 503. 
 
538 
 
 Table op Cases Cited. 
 
 Fuller V. Arms, 45 Vt. 400 ; 134. 
 
 «. Wason, 7 N. H. 341 ; 205. 
 
 V. Yates, 8 Paige 325 ; 202, 360. 
 
 Fulton V. Fulton, 30 Miss. 586 ; 361. 
 Funk V. Eggleston, 92 111. 515 ; 65, 67. 
 
 a. 
 
 Gadberry v. Sheppard, 27 Miss. 203 ; 125, 
 
 137. 
 Gage V. Ward, 25 Me. 101 ; 328. 
 Gaines v. Green Pond Iron Mining Co., 32 
 
 N. J. Eq. 96; 207. 
 Gaines's Admx. v. Poor, 3 Mete. (Ky.) 503 ; 
 
 380. 
 Galbraith v. Gedge, 16 B. Mon. 631 ; 309, 
 
 310. 
 
 V. Green, 13 S. & E. 85 ; 317. 
 
 Gale V. Kinzie, 80 HI. 132 ; 306. 
 Gamble's Est., 5 Clark 4 ; 261. 
 Gambril v. Gambril, 3 Md. Ch. 259 ; 208. 
 Gammon v. Freeman, 31 Me. 243 ; 317, 327. 
 Gangwere's Est., 14 Pa. St. 417 ; 355. 
 Gannaway v. Tarpley, 1 Cold. 572 ; 320. 
 Gardiner v. Bering, 1 Paige 573 ; 205. 
 
 w. Miles, 5 Gill 94; 337. 
 
 Gardner v. Gardner, 10 E. I. 211 ; 351. 
 
 V. Green, 5 E. I. 104 ; 317. 
 
 V. Hooper, 3 Gray 398 ; 278. 
 
 V. Ward, 2 Mass. 244; 434, 466, 467, 
 
 468. 
 Garland v. Crow, 2 Bailey 24 ; 215. 
 Garlick v. Strong, 3 Paige 440 ; 381 . 
 Garrard v. Garrard, 7 Bush 436 ; 354. 
 Garrett v. Clark, 5 Greg. 464 ; 195. 
 
 V. Scouten, 3 Denio 334 ; 140. 
 
 Carton's Heirs v. Bates, 4 B. Mon. 367 ; 405. 
 Garvin v. Hatcher, 39 Iowa 685 ; 390. 
 Gaskin v. Gaskin, Cowp. 657 ; 42, 65. 
 Gast V. Baer, 62 Pa. St. 35 ; 98. 
 Gate V. Wiseman, Dyer 140 ; 284. 
 Gause v. Wiley, 4 S. & R. 509 ; 97, 107. 
 Gazley v. Price, 16 Johns. 268 ; 301. 
 Gelzer v. Gelzer, 1 Bail. Eq. 387 ; 351. 
 George v. Cooper, 15 W. Va. 666 ;. 327. 
 
 V. Morgan, 16 Pa. St. 95 ; 110. 
 
 Germond v. Jones, 2 HiU 569 ; 315. 
 
 Geyer v. Wentzel, 68 Pa. St. 85 ; 70. 
 Gibbon v. Gibbon, 40 Ga. 562 ; 352. 
 Gibbs V. Estey, 29 N. Y. S. C. 266 ; 395. 
 Gibbert v. Peteler, 38 N. Y. 165 ; 124, 134, 
 
 149. 
 Gibson v. Chouteau, 13 Wall. 92 ; 133. 
 
 i;. Crehofe, 3 Pick. 475 ; 343. 
 
 V. Gibson, 17 E. L. & E. 349 ; 362. 
 
 V. Gibson, 15 Mass. 106 ; 352. 
 
 V. Horton, 5 H. & J. 177 ; 68. 
 
 Giddings v. Cox, 31 Vt. 607 ; 262. 
 
 V. Smith, 15 Vt. 344 ; 94. 
 
 Gilbert v. Eeynolds, 51 111. 513; 391. 
 Giles «. GuUion, 13 Ind. 487 ; 409. , 
 Gill V. Taylor, 3 Port. 182; -254. 
 Gillespie v. Somerville, 3 St. & Pat. 447; 
 
 312. 
 
 V. Warford, 2 Cold. 632 ; 264, 282, 284. 
 
 Gilliam v. Jacocks, 4 Hawks 310 ; 108. 
 Gillilan v. Swift, 21 N. Y. S. C. 574 ; 371. 
 Gillis V. Bailey, 21 N. H. 149 ; 134, 147. 
 Gillis V. Brown, 5 Cow. 388 ; 306. 
 Gilmore v. Gilmore, 7 Greg. 374 ; 
 
 V. Kay, 2 Hayw. 108 ; 499. 
 
 Ginger v. White, Willes 350 ; 36. 
 Gist V. Cattell, 2 Des. 53 ; 370. 
 Given v. Marr, 27 Me. 221 ; 387. 
 Gleason v. Emerson, 51 N. H. 405 ; 
 
 V. Fayerweather, 4 Gray 348 ; 
 
 Gleeson's Heir v. Scott, 3 H. & Munf. 278 ; 
 
 107. 
 Glenn v. Bank of U. S., 8 Ohio 72 ; 376. 
 
 V. Clark, 53 Md. 580 ; 313, 328, 340. 
 
 Godfrey v. Humphrey, 18 Pick. 537 ; 59. 
 
 Gold V. Eyan, 14 111. 53 ; 335. 
 
 Golden Fleece Co. v. Cable Con. Co., 12 Nev. 
 
 312; 500. 
 Gooch V. Atkins, 14 Mass. 378 ; 392. 
 Goodbum v. Stevens, 1 Md. Ch. 420, 5 Gill 1 ; 
 
 309. 
 Goodell V. Jackson, 20 Johns. 707 ; 509. 
 Goodenough v. Goodenough, 2 Dickens 1765 ; 
 
 308. 
 Goodlitle v. Newman, 3 Wils. 516 ; 261, 392. 
 Goodrich v. Harding, 3 Eand. 280 ; 63. 
 Goodright v. AUin, 2 W. Black. 1042 ; 37. 
 ». Barron, 11 East. 220; 65. 
 
 263. 
 
 386. 
 131. 
 
Table op Cases Cited. 
 
 539 
 
 Goodright V. Cator, Dougl. 485 ; 143. 
 Goodright v. Forrester, 8 East. 552 ; 478. 
 
 V. Patch, MSS. ; 39, 41, 42. 
 
 Good's Lessee v. Zercher, 12 Ohio 364 ; 373, 
 
 374. 
 Goodtitle v. Way, 1 T. E. 735 ; 192. 
 
 V. Wood, Willes 211 ; 478. 
 
 Goodwin v. Gilbert, 9 Mass. 510 ; 118. 
 
 V. Goodwin, 33 Conn. 314 ; 306. 
 
 Gordon v. Stevens, 2 Hill Ch. 46 ; 359, 360. 
 Gore r. Braaier, 3 Mass. 544 ; 295. 
 Gospel Soc. V. Wheeler, 2 Gall. 105 ; 524. 
 Goss V. Eberhart, 29 Ga. 545 ; 200. 
 Gough V. Gough, 26 Md. 347 ; 130. 
 
 V. Manning, 26 Md. 347 ; 370. 
 
 V. Walker, 1 Nott. & McC. 469 ; 372. 
 
 Gould V. Crow, 57 Mo. 200 ; 388. 
 
 V. Womack, 2 Ala. 83 ; 351, 352. 
 
 Gove V. Gather, 23 lU. 634 ; 339, 373. 
 Grady v. MoCorkle, 57 Mo. 172 ; 339. 
 Graham v. Roberts, 8 Ired. Eq. 99 ; 211. 
 Grant v. Carpenter, 8 E. I. 36 ; 70. 
 
 V. Parham, 15 Vt. 649 ; 392, 393. 
 
 Graves v. Eraden, 62 Ind. 93 ; 340. 
 
 V. Cochran, 68 Mo. 74 ; 404. 
 
 Gkay v. Blanchaed, 8 Pick. 284; 123, 
 
 135, 142, 143. 
 
 V. Parker, 4 W. & S. 17 ; 195. 
 
 V. Winkler, 4 Jones Eq. (N. C.) 308 ; 66. 
 
 Grayson v. Atkinson, 1 Wils. 334 ; 36. 
 • Greathead's App., 42 Conn. 374 ; 392. 
 Green v. Causey, 10 Ga. 435 ; 331. 
 V. Liter, 8 Cr. 229; 264, 415, 442, 
 
 476, 490. 
 
 V. Pettingill, 47 N. H. 377 ; 144. 
 
 V. Putnam, 1 Barb. 500 ; 317, 393. 
 
 V. Eivett, 2 Salk. 421 ; 80. 
 
 V. Tennant, 2 Barring. 336 ; 399, 406. 
 
 V. Watkins, 7 Wheaton 28 ; 415, 442, 
 
 476, 477. 
 Greenawalt v. Greenawalt, 71 Pa. St. 483; 
 
 111. 
 Greenbaum v. Austrian, 70 111. 591 ; 323. 
 Greene v. Greene, 1 Ohio 535 ; 309, 310, 
 
 327. 
 Greenheld v. Standforth, 21 Iowa 595 ; 516. 
 Green's Ex. v. Green, 7 Port. 19 ; 359, 366. 
 
 Greenwood v. Clarke, 3 Bland 268 (note) ; 
 
 215. 
 Greer v. Chester, 7 Humph. 77 ; 329. 
 11. Mayor of N. Y., 1 Abb. Pr. N. S. 
 
 206; 216. 
 
 V. Sankston, 26 How. Pr. 471 ; 303. 
 
 Gregg V. Jones, 5 lieisk. 443 ; 348. 
 Grider v. Eubanks, 12 Bush 510 ; 351, 356. 
 Griffin v. Eeece, 1 Harring. 508 ; 332, 336. 
 Griffith V. Griffith, 4 Har. & McH. 101 ; 370. 
 
 V. Spratley, 1 Cox 389 ; 215. 
 
 Griggs V. Smith, 7 Hals. 22 ; 316, 327. 
 Grimes v. Wilson, 4 Blackf. 331 ; 403. 
 Grim's App., 1 Grant 209 ; 198. 
 Grogan v. Garrison, 27 Ohio St. 50 ; 352. 
 Gross V. Lange, 70 Mo. 45 ; 324. 
 Grout V. Townsend, 2 Denio 336 ; 101, 112. 
 
 V. Townsend, 2 Hill 554 ; 280. 
 
 Groves v. Gordon, 3 Brev. 245 ; 499. 
 Guerin v. Moore, 25 Minn. 462 ; 400. 
 Guidet V. Brown, 54 How. Pr. 409, 3 Abb. 
 
 N. C. 295; 379. 
 Guild V. Eichards, 16 Gray 309 ; 143, 144. 
 Guion V. Anderson, 8 Humph. 298 ; 262, 264. 
 GuUiver v. Poyntz, 3 Wils. 141 ; 59. 
 
 V. Witchett, 1 Wils. 105 ; 159. 
 
 Gully V. Eay, 18 B. Mon. 107 ; 313, 324. 
 Gunning v. Carman, 3 Eedf. 69 ; 210, 216, 
 
 217. 
 Guthrie v. Owen, 10 Yerg. 123; . 389. 
 Guthrie's App., 37 Pa. St. 10 ; 112. 
 Guyer v. Smith, 22 Md. 239 ; 499, 500. 
 Gwynne v. Cincinnati, 3 Ohio 24 ; 332. 
 
 EC. 
 
 Hackler's Heirs v. Cabel, Walker (Miss.) 91 ; 
 
 311. 
 Haines v. Ellis, 24 Pa. St. 253 ; . 283. 
 Hale V. James, 6 Johns. Ch. 258 ; 399. 
 
 V. Marsh, 100 Mass. 468 ; 199. 
 
 V. Munn, 4Gray 132; 316. 
 
 VI Plummer, 6 Ind. 121 ; 309. 
 
 Hall V. Chaffee, 14 N. H. 215 ; 114. 
 
 V. Dickinson, 1 Grant 240 ; 64. 
 
 V. Golden, 16 B. Mon. 553 ; 405. 
 
 V. Goodwyn, 4 McC. 442 ; 72. 
 
540 
 
 Table of Cases Cited. 
 
 3 Binn. 
 
 601. 
 
 Hall V. Goodwyn, 2 N. & McC. 383 ; 197. 
 
 V. Hall, 2 McCord Ch. 269 ; 364. 
 
 ». HaU, 81N.Y. 130; 520. 
 
 V. Hall, 32 Ohio 184 ; 285. 
 
 V. Hall, 8 Eich. 407 ; 363. 
 
 V. Preble, 68 Miss. 100 ; 65. 
 
 V. Priest, 6 Gray 18 ; 98. 
 
 V. Thayer, 5 Gray 523 ; 103. 
 
 V. Tufts, 18 Pick. 455 ; 131. 
 
 Hall's Lessee v. Vandegeift, 
 
 374; 96,97,101. 
 Halstead v. Lake Co., 56 Ind. 363 ; 
 Hamilton v. Buckwalter, 2 Yeates 389 ; 361, 
 
 365. 
 
 V. EUiott, 5 S. & R. 375 ; 140, 144. 
 
 V. Hughes, 6 J. J. Mar. 581 ; 313. 
 
 V. Kneeland, 1 Nev. 40 ; 124, 142. 
 
 !). CVNeil, 9Mo.ll; 367. 
 
 V. Eoyce, 2 Sch. & Lef. 315 ; 230. 
 
 Hamlin v. Hamlin, 19 Me. 141 ; 312. 
 Hammekin v. Clayton, 2 "Woods 336 ; 511. 
 Hamond v. P. R. & A. R. R., 15 S. Car. 10, 
 
 12 Reporter 666 ; 135, 143. 
 Hance v. West, 32 N. J. L. 233 ; 73. 
 Hancock v. Carlton, 6 Gray 39 ; 150. 
 Handy v. Dobbin, 12 Johns. 220 ; 441. 
 Hannan v. Osbom, 4 Paige 336 ; 201. 
 Hanna's App., 31 Pa. St. 53 ; 70. 
 Hannum v. Spear, 1 Yeates 553 ; 337. 
 Hanrick v. Hanrick, 54 Tex. 101 ; 508. 
 Hansel! v. HubbeU, 24 Pa. St. 244 ; 98. 
 Hapgood V. Houghton, 22 Pick. 480 ; 124. 
 Harden v. Fisher, 1 Wheat. 300 ; 523. 
 
 V. Hays, 9 Pa. St. 151 ; 67, 68. 
 
 Hardy v. Redman, 3 Cr. Cir. 635 ; 64. 
 
 1). Scales, 54 Wise. 452 ; 362. 
 
 Harley v. Att'y-Gen., 40 Ala. 689 ; 513. 
 Harrell .,. Harrell, 4 Cold. 377; 331, 335, 
 
 336. 
 Harriman v. Gray, 49 Me. 537 ; 380. 
 Harris v. Potts, 3 Yeates 141 ; 197. 
 
 !). Shaw, 13 111.456; 125. 
 
 V. York Mut. Lis. Co., 50 Pa. St". 341 ; 
 
 279. 
 Harrisburg v. Crangle, 3 W. & S. 460 ; 204. 
 Hai-rison v. Boyd, 36 Ala. 203 ; 312, 404. 
 V. Carroll, 11 Leigh 476 ; 378. 
 
 Harrison v. Eldridge, 2 Hals. 392 ; 336, 340. 
 
 V. Griffith, 4 Miss. 147 ; 347. 
 
 Harrison's Exs. v. Payne, 32 Gratt. 387 ; 397. 
 Harrold's Casei, 1 Clark (Pa.) 214 ; 496. 
 Hart V. Logan, 49 Mo. 47 ; 323. 
 
 V. McCollum, 28 Ga. 478 ; 334. 
 
 V. Thompson, 3 B. Mon. 482 ; 99. 
 
 Harlshorne v. Hartshome, 1 Green Ch. 349 ; 
 
 314, 343. 
 Harvey v. Alexander, 1 Rand. 219 ; 380. 
 
 D. Wickham, 23Mo. 112; 265. ■ 
 
 Harvill v. HoUoway, 24 Ark. 19 ; 309. 
 Harwood v. Goodright, Cowp. 92 ; 38. 
 Haskins v. Tate, 25 Pa. St. 249 ; 201. 
 Hastings v. Clifford, 32 Me. 132 ; 363, 370. 
 Hastings v. Crunckleton, 3 Yeates 261 ; 212, 
 
 407. 
 
 V. Dickinson, 7 Mass. 153 ; 352. 
 
 V. Merriam, 117 Mass. 245 ; 54. 
 
 V. Stevens, 29 N. H. 464 ; 314. 
 
 Hatch V. Palmer, 58 Me. 271 ; 340. 
 Hatfield v. Sneden, 42 Barb. 615 ; 197. 
 
 V. Sneden, 54 N. Y. 280 ; 289, 350. 
 
 Hathon v. Lyon, 2 Mich. 93 ; 287. 
 Hauenstein v. Lynham, 10 Otto 483 ; 524. 
 Havens v. Havens, 1 Sand. Ch. 324 ; 360. 
 Hawkins v. Chapman, 36 Md. 83 ; 55. 
 Hawley v. James, 5 Paige 318 ; 313, 351, 366. 
 Haxall's Exrs. v. Shippen, 10 Leigh 536 ; 211. 
 Hay V. Mayer, 8 Watts 203 ; 261, 275. 
 Haydon v. Stoughton, 5 Pick. 528 ; 141, 183, 
 
 185. 
 Hayes v. Whitall, 2 Beas. 241 ; 335. 
 Hayford v. Benlows, Ambler 583 ; 38. 
 Haynes v. Bourn, 42 "Vt. 686 ; 262. 
 Haynie v. Dickens, 68 111. 267 ; 368. 
 Hayward v. Howe, 12 Gray 49 ; 98. 
 Heald's Petition, 22 N. H. 265 ; 352. 
 Hearle v. Greenbank, 1 Atk. 716 ; 270, 274. 
 
 V. Greenbank, 1 Ves. Sr. 307 ; 267. 
 
 Heath v. White, 5 Conn. 235 ; 262, 279. 
 Heathcote v. Paignon, 2 Br. C. C. 167 ; 215. 
 Hebron v. Colchester, 5 Day. 169 ; 466, 498, 
 
 506. 
 Heeney v. Brooklyn Ben. Soc, 33 Barb. 360 ; 
 
 513, 520. 
 Hefiher v. Knepper, 6 Watts 18 ; 98, 101. 
 
Table of Cases Cited. 
 
 541 
 
 Helfrich v. Obermyer, 15 Pa. St. 113 ; 338. 
 Henagan v. Harllee, 10 Kich. Eq. 285 ; 329. 
 Henderson v. Baltimore, 8 Md. 352 ; 327. 
 
 V. Hunter, 59 Pa. St. 335 ; 187, 188. 
 
 V. Vaulx, 10 Yerg. 30 ; 199. 
 
 Hendrix v. McBeth, 61 Ind. 473 ; 300, 306. 
 Henry v. Tapper, 29 Vt. 358 ; 150. 
 Hepburn v. Dubois, 12 Pet. 345 ; 372. 
 Herbert v. Wren, 7 Cr. 370 ; 360, 363. 
 Heron v. Hoflfner, 3 Rawle 393 ; 365. 
 Herron v. Williamson, 6 Lit. 250 ; 312. 
 Hershman v. Hershman, 63 Ind. 451 ; 128, 
 
 150. 
 Heslop V. Heslop, 82 Pa. St. 537 ; 384, 385. 
 Heth V. Cocke, 1 Eand, 344; 324. 
 Heyward v. Cuthbert, 3 Brev. 482 ; 396. 
 
 V. Cuthbert, 1 McCord 386 ; 405. 
 
 Hickman v. Irvine, 3 Dana 121 ; 305, 402. 
 Hicks V. Stebbins, 3 Lans. 39 ; 313. 
 Higganbotham v. Comwell, 8 Gratt. 83 ; 359. 
 Higgins V. Breen, 9 Mo. 497 ; 300, 301. 
 Hihn V. Peck, 30 Cal. 280 ; 128. 
 Hn(|reth v. Jones, 13 Mass. 525 ; 342. 
 
 V. Thompson, 16 Mass. 191 ; 392. 
 
 Hileman v. Bouslaugh, 13 Pa. St. 344 ; 53. 
 Hill V. Burrow, 3 CaU 342 ; 98. 
 
 V. Chambers, 30 Mich. 422 ; 287. 
 
 V. Gregory, 56 Miss. 341 ; 309. 
 
 V. Hill, 4 Barb. 412 ; 131. 
 
 V. Thomas, 11 S. Car. 346 j 201. 
 
 Hilleary v. Hilleary, 26 Md. 274 ; 392. 
 Hillgartner v. Gebhart, 25 Ohio St. 557 ; 396. 
 Hilliard v. Binford, 10 Ala. 977 ; 362, 367. 
 Hinchman v. Stiles, 1 Stock. 361 ; 314, 335. 
 Hinds V. Ballou, 44 N. H. 619 ; 327, 343. 
 
 V. Pugh, 48 Miss. 268 ; 301. 
 
 Hinton v. Hinton, Phil. L. 410 ; 367. 
 Hiscock V. Jaycox, 12 N. B. E. 507 ; 309. 
 Hitchcock V. Harrington, 6 Johns. 290 ; 314, 
 
 317. 
 Hitner v. Ege, 23 Pa. St. 305 ; 210, 266. 
 Hitner's App., 54 Pa. St. 110 ; 380. 
 Hittukhomi v. Watts, 7 Ala. 363 ; 250. 
 Hobbsj). Haryey, 16Me. 80; 399. 
 Hodges V. McCabe, 3 Hawks 78 ; 336. 
 
 V. Potter, 12 E. I. 245 ; 203. 
 
 V. Spicer, 79 N. C. 223 ; 196. 
 
 46 
 
 Hogan i;. Andrews, 23 Wend. 452 ; 62, 63. 
 
 V. Jackson, Cowp. 307 ; 36. 
 
 Hogan's Heirs v. Welcker, 14 Mo. 177 ; 53. 
 Holbrook v. Finney, 4 Mass. 566 ; 309. 
 Holes V. Petit, Plow. 259; 102. 
 Hollands. Cruft, 3 Gray 162; 103. 
 Hollis V. HoUis, 4 Baxt. 524 ; 347. 
 Holmes v. Maywill, 2 Show. 137 ; 36. 
 Holms V. Seller, 3 Lev. 305 ; 117. 
 Hooks V. Lee, 7 Ired. Eq. 83 ; 273. 
 Hooper v. Cummings, 45 Me. 359 ; 123, 146. 
 Hoot V. Sorrell, 11 Ala. 386 ; 380, 381. 
 Hope V. Eucha, 88 Pa. St. 127 ; 99. 
 Hopkins v. Frey, 2 Gill 369 ; 312. 
 
 ^.Hopkins, citedin4Ve8. Jr.325; 428. 
 
 V. Threlkeld, 3 H. & McH. 443 ; 109. 
 
 Hopkinson ii. Dumas, 42 N. H. 301 ; 312, 320. 
 Homsby v. Bacon, 20 Tex. 556 ; 522. 
 Homseby v. Casey, 21 Mo. 545 ; 368. 
 Hosford V. Ballard, 39 N. Y. (Tiffany) 147; 
 
 127, 145. 
 Hoskins v. Hutchings, 37 Ind. 324; 409. 
 Houck V. Eitter, 76 Pa. St. 280 ; 283. 
 Hough's Est., 7 W. N. C. 559 ; 129. 
 Hounslea v. Hand, 21 Hun 251 ; 61. 
 Howard v. Francis, 30 N. J. Eq. 444 ; 369. 
 Hoxsie V. EUis, 4 E. 1. 123 ; 391, 393. 
 Hoyt V. Kimball, 49 N. H. 326 ; 126, 1 37. 
 Hubbard v. Goodwin, 3 Leigh 492 ; 510. 
 
 V. Hubbard, 97 Mass. 188 ; 143, 147. 
 
 V. Hubbard, 6 Mete. 50 ; 369. 
 
 Huckabee's Adm'r v. Andrews, 34 Ala. 646 ; 
 
 299. 
 Hughes V. Lane, 11 111. 123 ; 373. 
 
 V. McKinsey, 5 T. B. Mon. 38 ; 373. 
 
 V. Watson, 10 Ohio 127 ; 376. 
 
 Hugunin v. Cochrane, 51 111. 302 ; 348. 
 Hulburt V. Emerson, 16 Mass. 241 ; 98. 
 Humes v. Scruggs, 64 Ala. 40 ; 383, 389. 
 Humphrey v. Phinney, 2 Johns. 484 ; 399, 400. 
 Hunt V. Beeson, 18 Ind. 380 ; 128, 137, 139. 
 
 ». Hotchkiss, 64 Me. 241 ; 395. 
 
 V. Thompson, 61 Mo. 1 48 ; 388. 
 
 V. Warnicke's Heirs, Hardin 61 ; 503. 
 
 V. Watkins, 1 Humph. 498 ; 204, 209. 
 
 V. Wright, 47 N. H. 396 ; 133. 
 
 Hunter v. Bryan, 5 Humph. 47 ; 195. 
 
542 
 
 Table op Cases Cited. 
 
 Hunter v. Osterhoud, 11 Barb. 33 ; 148. 
 
 V. Whitworth, 9 Ala. 965 ; 261. 
 
 Huntingdon v. Spaulding, 1 Day 8 ; 66. 
 Hurd V. Cass, 9 Barb. 366 ; 289. 
 Husted's App., 34 Conn. 488 ; 398. 
 Hutton V. Button, 3 Pa. St. 100 ; 380. 
 
 I. 
 
 Idle V. Cake, 2 L. Bay. 1144 ; 87. 
 Indiana, Peru & Chicago E. W. v. Hood, 66 
 
 Ind. 580; 138. 
 Inge V. Boardman, 2 Ala. 331 ; 369. 
 Ingus v. Sailor's Snug Haebob, 3 Pet. 
 
 99; 494,497,506. 
 Inhabitants of Cummington v. Inhabitants 
 of Springfield, 2 Pick. 394; 466, 
 498. 
 Inhabitants of Manchester v. Inhabitants of 
 
 Boston, 16 Mass. 230 ; 466, 498. 
 In re Angier, 4 N. B. R. 619 ; 338, 339. 
 " Anne Garrison, 2 McCart. 893; 397, 
 
 401. 
 " Bailly, unreported ; 378. 
 " Bartenback, 11 N. B. E. 61 ; 338. 
 " Campbell, 2 Dougl. 141 ; 305. 
 " Central Park, 16 Abb. Pr. 36; 300,333. 
 « Chase, 1 Bland 206; 307. 
 " Creger, 1 Barb. Ch. 601 ; 266,318. 
 " Leefeetux.,4Edw. 395; 5l'9. 
 " Steele, 19 N. J. Eq. 120 ; 207. 
 " Winne, ILans. 508; 289. 
 Ipswich Grammar School v. Andrews, 8 
 
 Mete. 584 ; 56. 
 Irwin V. Covode, 24 Pa. St. 162 ; 206. 
 
 V. Dunwood, 17 S. & E. 61 ; 98. 
 
 Isenhart v. Brown, 1 Edw. 411 ; 369. 
 
 J. 
 
 Jackman v. Nowling, 69 Ind. 188 ; 337. 
 Jackoway v. McGarrah, 21 Ark. 347 ; 393. 
 Jacks V. Dyer, 31 Ark. 334 ; 393. 
 Jackson v. Allen, 3 Cow. 221 ; 118, 148. 
 
 V. Babcock, 12 Johns. 389 ; 59, 64. 
 
 V. Bard, 4 Johns. 230 ; 224, 229, 234. 
 
 V. Brownell, 1 Johns. 267 ; 118. 
 
 Jackson V. Bull, 10 Johns. 148 ; 67, 199. 
 
 V. Burns, 3 Binn. 75 ; 504, 505. 
 
 V. Camp, 1 Cow. 605 ; 224, 226, 229, 
 
 234. 
 
 V. Coleman, 2 Johns. 391 ; 64. 
 
 V. Crysler, 1 Johns. 125 ; 118, 144, 146. 
 
 V. Dobbin, 3 Johns. 223 ; 229. 
 
 I). Ety, 5Cow. 314; 509. 
 
 V. Fitzsimmons, 10 Wend. 9 ; 507. 
 
 V. Harris, 8 Johns. 141 ; 62, 67. 
 
 V. Hodges, 2 Tenn. Ch. 276 ; 283. 
 
 V. Housel, 17 Johns. 281 ; 60. 
 
 V. Howe, 14 Johns. 405 ; 232. 
 
 V. Kip, 3 Hals. 241 ; 309. 
 
 V. Kisselbrack, 10 Johns. 336 ; 192, 193. 
 
 V. Lellech, 8 Johns. 202 ; 252. 
 
 V. Luguere, 5 Cow. 221 ; 199. 
 
 V. Martin, 18 Johns. 31 ; 68, 198. 
 
 V. Merrill, 6 Johns. 185 ; 59, 67. 
 
 V. Myers, 3 Johns. 388 ; 53, 55. 
 
 V. O'Donoghy, 7 Johns. 247 ; 392. 
 
 V. Eeynolds, 3 Caines 444 ; 229. 
 
 V. Eobins, 16 Johns. 537 ; 65. , 
 
 V. Schoonmaker, 4 Johns. 390 ; 225, 
 
 227, 239, 244, 279. 
 
 V. Schutz, 18 Johns. 174 ; 128, 133. 
 
 V. Sellick, 8 Johns. 262 ; 225, 226, 227, 
 
 232, 239, 240, 244. 
 
 V. Sheldon, 5 Cow. 448 ; 148. 
 
 V. Topping, 1 Wend. 388 ; 141. 
 
 V. Van Zandt, 12 Johns. 169 ; 112. 
 
 V. Varick, 7 Cow. 238 ; 438, 441, 478, 
 
 481. 
 
 V. Wells, 9 Johns. 222 ; 1 97. 
 
 V. Wheat, 18 Johns. 45 ; 236. 
 
 V. White, 20 Johns. 313 ; 466, 470, 
 
 471, 498. 
 ex d. Clowes v. Vanderheyden, 17 
 
 Johns. 167 ; 393. 
 ex d. Culverhouse v. Beach, 1 Johns. 
 
 399; 512. 
 ex d. Doran v. Green, 7 Wend. 333 ; 
 
 513. 
 ex d. Elmendorff v. Jackson, 7 Johns. 
 
 214; 503. 
 ex d. Folliard v. Wright, 4 Johns. 75 ; 
 
 498, 523. 
 
Table of Cases Cited. 
 
 543 
 
 Jackson ex d. Gansevoort v. Lunn, 3 Johns. 
 
 109; 506,507. 
 
 ex d. Loucks v. Churchill, 7 Cow. 287 ; 
 
 • 360, 361, 395. 
 ex d. M'Crea v. Mancius, 2 Wend. 357 ; 
 
 212, 213. 
 — - ex d. Murphy v. Van Hoeskn, 4 Cow. 
 
 325 ; 195, 212, 213. 
 ex d. Newkirk v. Embler, 14 Johns. 
 
 198 J 197. 
 ex d. Smith v. Adams, 7 Wend. 367 ; 
 
 500, 509. 
 ex d. SwABTWouT V. Johnson, 5 Cow. 
 
 74; 262,264,279. 
 ex d. Totten v. Aspell, 20 Johns. 411 ; 
 
 393. 
 Jacksons v. Sanders, 2 Leigh 109 ; 508. 
 Jacques v. Ennis, 25 N. J. Eq. 402 ; 280, 285. 
 James v. Fields, 5 Heisk. 394 ; 348. 
 
 V. Hales, 2 Vem. 267 ; 215. 
 
 V. Eowan, 6 Sm. & M. 393 ; 309. 
 
 James' Claim, 1 Ball. 47 ; 99. 
 Jameson v. Garden, 29 lU. 199 ; 328. 
 Jarman's Ex. v. Jarman, 4 Lea 671 ; 367. 
 Jaycox V. Collins, 26 How. Pr. 497 ; 289. 
 Jenkins v. Clement, 1 Harp. Eq. 72 ; 60. 
 
 V. Jenkins, 2 Dana 102 ; 302. 
 
 V. Jenkins, 82 N. C. 208 ; 411. 
 
 V. Noel, 3 Stew. (Ala.) 60 ; 499, 501. 
 
 Jennings v. O'Brien, 47 Iowa 392 ; 125. 
 
 V. Smith, 29 lU. 116 ; 367. 
 
 Jennison v. Hapgood, 14 Pick. 345; 329. 
 Jervis v. Bruton, 2 Vem. 251 ; 117. 
 Jewell V. Warner, 35 N. H. 176 ; 94, 113. 
 Jewell's Est., 1 W. N. C. 404 ; 209, 210. 
 Jewett V. Berry, 20 N. H. 36 ; 143. 
 Jiggitts V. Jiggitts, 40 Miss. 718 ; 334. 
 Johns V. Johns, 1 Ohio St. 350 ; 304. 
 Johnson v. Cummins, 16 N. J. Eq. 97 ; 288. 
 
 V. Fritz, 44 Pa. St. 449 ; 269. 
 
 V. Johnson, 2 Mete. (Ky.) 331 ; 97, 100. 
 
 V. Johnson, 23 Mo. 561 ; 353. 
 
 V. Johnson, 1 Munf. 549 ; 61. 
 
 V. Johnson, 18 N. H. 594 ; 205, 211. 
 
 B. Morse, 2 N. H. 48 ; 394. 
 
 V. Neil, 4 Ala. 166 ; 394. 
 
 V. Parcels, 48 Mo. 549 ; 311. 
 
 Johnson v. Perley, 2 N. H. 56 ; 305. 
 
 V. Plume, 77 Ind. 166 ; 300. 
 
 V. Smith, 2 Bur. 961 ; 80. 
 
 V. Smith, 5 Bush 102 ; 209. 
 
 V. Thomas, 2 Paige 377 ; 405, 406. 
 
 V. Van Velsor, 43 Mich. 109 ; 381. 
 
 Johnston v. Vandyke, 6 McL. 422 ; 399. 
 Jones V. Bramblet, 2 111. 276 ; 146, 197. 
 
 V. Brewer, 1 Pick. 314 ; 394. 
 
 V. Brown, 1 Md. Ch. 191 ; 273. 
 
 V. Carter, 73 N. C. 148 ; 279. 
 
 V. Chesapeake & Ohio B. B., 14 W. Va. 
 
 514; 126,147. 
 
 V. Davies, 7 H. & N. 766 ; 260. 
 
 V. Devore, 8 Ohio St. 430 ; 337. 
 
 V. Gardner, 10 Johns. 266 ; 301. 
 
 V. Gerock, 6 Jones Eq. 190 ; 303, 408. 
 
 V. Hughes, 27 Gratt. 561 ; 350, 362. 
 
 V. Jones, 28 Ark. 19 ; 301. 
 
 V. Jones, 1 Busbee L. J77 ; 398. 
 
 V. Jones, 2 H. & J. 281 ; 104. 
 
 V. McMasters, 20 How. 8 ; 498. 
 
 V. Eoe, 3 T. B. 38 ; 478. 
 
 V. Sherrard, 2 Dev. & B. Eq. 179 ; 209, 
 
 216. 
 
 V. Walker, 13 B. Mon. 163 ; 147. 
 
 V. Westcomb, Prec. Ch. 316 ; 159. 
 
 Jones' Exrs. v. Jones, 2 Beas. 236 ; 68. 
 
 V. Stiles, 19 N. J. Eq. 324; 197. 
 
 Jordan v. Boach, 32 Miss. 481 ; 94. 
 
 V. Van Epps, 26 N. Y. 8. C. 526, 85 
 
 N. Y. 427; 345. 
 Jossey V. White, 28 Ga. 265 ; 201. 
 Joyner v. Conyers, 6 Jones Eq. 78 ; 204. 
 Junk V. Cannon, 34 Pa. St. 286 ; 312. 
 
 Kampf V. Jones, 2 Keen 756 ; 181. 
 Kay V. Jones, 7 J. J. Mar. 38 ; 379. 
 Kearney's Exr's v. Kearney, 17 N. J. Eq. 
 
 59,504; 201,207,211. 
 Keeler v. Tatnell, 3 Zab. 62 ; 378. 
 Keenan v. Keenan, 7 Bich. 345 ; 513. 
 Keith V. Trapier, 1 Bailey Eq. 63 ; 342, 398, 
 
 405. 
 Keller v. McMichael, 2 Yeates 300 ; 338. 
 
5M 
 
 Table of Cases Cited. 
 
 Kellogg V. Blair, 6 Mete. 325 ; 59. 
 Kelly V. Mahan, 2 Yeates 515 ; 311. 
 
 V. Stinson, 8 Blackf. 387 ; 359. 
 
 Kenan v. Johnson, 48 Ga. 28 ; 391. 
 Kendall v. Honey, 5 T. B. M. 282 ; 405. 
 ■ Kennedy v. Johnston, 65 Pa. St. 451 ; 368. 
 
 V. Kennedy, 5 Dutch. 188 ; 102. 
 
 V. Kennedy, 29 N. J. L. 185 ; 307. 
 
 V. Mills, 13 Wend. 553 ; 359. 
 
 & Moreland v. McCartney, 4 Port. 141 ; 
 
 254. 
 
 V. Nedrow, 1 DaU. 415 ; 359. 
 
 V. Wood, 20 Wend. 230; 519. 
 
 Kennerly v. Missouri Ins. Co., 11 Mo. 204 ; 
 
 408. 
 Kenniston v. Leighton, 43 N. H. 309 ; 196. 
 Kennon v. M'Eoberts, 1 Wash. 99 ; 36, 63. 
 Kent V. Taggart, 68 Ind. 163 ; 345. 
 Kepple's App., 53 Pa. St. 211 ; 69. 
 Ker V. Dungaunon, 1 Dru. & War. 509 ; 179. 
 Ketchum v. Shaw, 28 Ohio St. 503 ; 340, 
 
 344. 
 
 V. Schicl^etanz, 73 Ind. 137; 337. 
 
 Kettle V. Vandyck, 1 Sand. Ch. 76 ; 328. 
 Kier v. Peterson, 41 Pa. St. 357 ; 206. 
 Kilham v. Ward, 2 Mass. 236; 434, 466, 
 
 467, 468, 498. 
 Killinger v. Smith, 6 S. & E. 534 ; 335. 
 Kimberly v. Hale, cited in 1 Eoot 96 ; 74. 
 King V. Bams, 13 Pick. 24 ; 196. 
 
 V. Cole, 6 E. I. 584 ; 67, 68. 
 
 V. King, 61 Ala. 479 ; 324. 
 
 V. Stetson, 11 AUen 407 ; 328. 
 
 V. Ware, 53 Iowa 97 ; 509. 
 
 V. Withers, Finch's Prec. 348 ; 118. 
 
 Kingman v. Sparrow, 12 Barb. 201 ; 306. 
 King's Heirs v. King, 12 Ohio 390 ; 66. 
 Kinsey v. Woodward, 3 Harring. 459 ; 360. 
 Kinsolving v. Pierce, 18 B. Mon. 782 ; 389. 
 Kintner v. McEae, 2 Ind. 453 ; 323. 
 Kirby v. Dalton, 1 Dev. Eq. 195 ; 347. 
 
 V. Vantrece, 26 Ark. 368 ; 312. 
 
 Kirk V. Dean, 2 Binn. 341 ; 291; 372. 
 
 V. Furgerson, 6 Cold. 479 ; 54. 
 
 Kirkbank v. Hudson, 7 Price 212 ; 459. 
 Kirkland v. Cox, 94 111. 400 ; 64. 
 Kister v. Eeiser, 38 Leg. Int. 300 ; 53. 
 
 Kitzmiller v. Van Eensselaer, 10 Ohio St. 
 
 63; 381. 
 Klinck V. Keckley, 2 Hill Ch. 250 ; 342. 
 KUne V. Beebe, 6 Conn. 494 ; 265. • 
 Klutts V. Klutts, 5 Jones Eq. 80 ; 322. 
 Kjiickerbacker v. Seymour, 46 Barb. 198; 
 
 330. 
 Knight V. Mann, 3 Fairf. 41 ; 316. 
 
 V. Weatherwax, 7 Paige 182 ; 201. 
 
 Knipe v. Palmer, 2 Wils. 130; 117. 
 Kom V. Cutler, 26 Conn. 4 ; 70. 
 Kottman v. Ayer, 1 Strobh. 552 ; 499, 503. 
 Krause v. Beitel, 3 Eawle 199 ; 338. 
 Kreutz v. McKnight, 51 Pa. St. 232 ; 126. 
 Krogan v. Kinney, 15 Iowa 242 ; 516. 
 Kuhn V. Feiser, 3 Head 82 ; 335. 
 
 V. Kaler, 14 Me. 409 ; 304, 305. 
 
 Kyne v. Kyne, 48 Iowa 21 ; 368. 
 
 Laberee v. Carleton, 53 Me. 211 ; 123, 124, 
 
 137. 
 Lachland v. Downing, 11 B. Mon, 33 ; lOOi 
 Ladd V. Harvey, 1 Fost. 526 ; 114. 
 
 V. Whitney, 117 Mass. 201 ; 69. 
 
 Ladiga ». Eowland, 2 How. (U. S.) 581 ; 250. 
 Laframboise v. Grow, 56 111. 197 ; 393. 
 Laidler v. Young, 2 H. & J. 69 ; 98, 109. 
 Laidley v. KUne, 8 W. Va. 218 ; 393. 
 Laird v. Wilson, Penning. 281 ; 393. 
 Lake v. Gray, 30 Iowa 415 ; 373. 
 Lakin v. Lakin, 2 Allen 45 ; 385. 
 Lamar v. Scott, 4 Eich. 506 ; 393. 
 
 V. Scott, 3 Strobh. 562 ; 408. 
 
 Lamb v. Miller, 18 Pa. St. 448 ; 147. 
 Lambert v. Paine, 3 Cr. 97 ; 36, 59, 504. 
 Lamkin v. Knapp, 20 Ohio St. 454 ; 388. 
 Lampel's Case, 10 Co. 49 ; 370. 
 Lanbeth v. Warner, 2 Jones Eq. 165 ; 407. 
 Lancaster Bank v. My ley, 13 Pa. St. 544 ; 54. 
 Lancaster Co. Bank v. StauiFer, 10 Pa. St. 
 
 398; 259,278,284. 
 Lane v. Courtney, 1 Heisk. 331 ; 312. 
 Lang V. Hitchcock, 99 111. 550 ; 278. 
 Langdon v. Ingram, 28 Ind. 360 ; 131, 133. 
 V. Stephens, 6 Ala. 730 ; 398. 
 
Table of Cases Cited. 
 
 545 
 
 Langworthy t). Hub, 46 Iowa 64 ; 311. 
 Lant's App., 9 W. N. C. 209 ; 273. 
 Large's Case, 2 Leon. 82, 3 Leon. 182 ; 118. 
 Larreau v. Dariguon, 5 Abb. Pr. 367 ; 509, 
 
 520. 
 Larrowe v. Beam, 10 Ohio 498 ; 398. 
 Lasher v. Lasher, 13 Barb. 106 ; 360. 
 Lasingi). Gulick, 26How. Pr. 250; 289. 
 Latham v. McLaln, 54 Ga. 230 ; 313. 
 Laurens v. Jenney, 1 Spears 356 ; 499, 501. 
 Lawrence v. Brown, 5 N. Y. 398 ; 402. 
 
 V. Miller, 1 Sandf. 516 ; 300. 
 
 Lawson v. Morton, 6 Dana 471 ; 312, 397, 
 
 399. 
 Lazear v. Porter, 87 Pa. St. 513 ; 338. 
 Leach v. Leach, 28 N. Y. S. C. 381 ; 289, 
 
 319. 
 Learned v. Cutler, 18 Pick. 9; 372. 
 Leavitt v. Lamprey, 13 Pick. 382 ; 371. 
 Lecompte v. Wash, 9 Mo. 551 ; 384. 
 Lee V. Lindell, 22 Mo. 202 ; 300, 345. 
 Leggett V. Dubois, 5 Paige 114 ; 511. 
 
 V. Steele, 4 Wash. C. C. 305 ; 398. 
 
 Leinaweaver v. Stoever, 1 W. & S. 160 ; 369. 
 Leland v. Adams, 9 Gray 171 ; 59. 
 Lenfair v. Lenfair, 18 Pick. 299 ; 345. 
 Lenfers v. Henke, 73 111. 405 ; 305, 306. 
 Leonard v. Leonard, 4 Mass. 533 ; 398. 
 Levering v. Heighe, 3 Md. Ch. 365 ; 355. 
 Levy's Lessee v. McCarter, 6 Pet. 102 ; 503, 
 
 507. 
 Lewis V. Cox, 5 Harring. 401 ; 376. 
 
 V. James, 8 Humph. 537 ; 312. 
 
 V. Lewis, 7 Ired. L. 72 ; 368. 
 
 V. Meserve, 61 Me. 374 ; 387. 
 
 V. Palmer, 46 Conn. 454 ; 65. 
 
 V. Smith, 11 Barb. 152, 9 N. Y. 502; 
 
 335, 360, 361. 
 Lide V. Eeynolds, 1 Brev. 76 ; 389. 
 Liederkranz Soc. v. Beck, 8 Bush 597 ; 402. 
 Liford's Case, 11 Co. 50 a ; 102. 
 Light V. Light, 21 Pa. St. 407 ; 364. 
 Lincoln v. Drummond, 5 Mass. 321 ; 143, 144. 
 
 V. Lincoln, 107 Mass. 590 ; 60. 
 
 Linden v. Graham, 34 Barb. 316 ; 406. 
 Lindsay v. McCormack, 2 A. K. Mar. 229; 
 
 61, 67. 
 
 Link V. Edmondson, 19 Mo. 487 ; 350. 
 Linn v. Alexander, 59 Pa. St. 43 ; 102. 
 Linzee v. Mixer, 101 Mass. 512 ; 134. 
 Lippen v. Eldred, 2 Barb. 130 ; 198. 
 Lippett V. Hopkins, 1 Gall. 445 ; 62, 63, 66. 
 Lippitt V. Huston, 8 K. I. 415 ; 114. 
 Littlefield v. Crocke, 30 Me. 192 ; 381. 
 
 V. Paul, 69 Me. 527 ; 385. 
 
 Littleton v. Littleton, 1 Dev. & Bat. 327 ; 330. 
 Lively v. Paschal, 35 Ga. 218 ; 356, 379. 
 Livingston v. Cochran, 33 Ark. 294; 349, 
 
 389. 
 
 V. Eeynolds, 2 Hill 157 ; 206. 
 
 V. Stickles, 8 Paige 398 ; 149. 
 
 V. Tompkins, 4 Johns. Ch. 415 ; 149. 
 
 Lloyd V. Conover, 1 Dutch. 47 ; 348. 
 Lobdell V. Hayes, 4 Allen 187 ; 312, 313. 
 Lock V. Lock, 2 Vern. 667 ; 215. 
 Lockett's Adm'r v. James, 8 Bush 28 ; 382. 
 Logan V. Phillips, 18 Mo. 22 ; 351. 
 
 V. Walton, 12 Ind. 639 ; 409. 
 
 Lombard v. Kinzie, 73 111. 446 ; 306. 
 Loomis V. Wilbur, 5 Mason 13 ; 205. 
 Lord V. Lord, 23 Conn. 327 ; 369. 
 Lothrop V. Foster, 51 Me. 367 ; 305, 371, 
 
 378, 395. 
 Loubat V. Nourse, 5 Fla. 350 ; 309. 
 Lovett V. Lovett, 10 Phila. 537 ; 307. 
 Lowry v. Fisher, 2 Bush 70 ; 382. 
 Lowry's Lessee v. Steele, 4 Ohio 170 ; 268. 
 Lucas V. Sawyer, 17 Iowa 517 ; 300, 408. 
 Luce V. Stubbs, 35 Me. 92 ; 395. 
 Ludlam v. Ludlam, 26 N. Y. 356 ; 496. 
 Luf kin V. Curtis, 13 Mass. 223 ; 371. 
 Luhrs V. Eimer, 80 N. Y. 171 ; 509, 521. 
 Luigart v. Ripley, 19 Ohio St. 24 ; 130, 361. 
 Lund V. Woods, 11 Mete. 566 ; 340. 
 Lyle V. Richards, 9 S. & R. 322 ; 106, 107. 
 Lyles V. Digges, 6 H. & J. 364 ; 197. 
 Lynn's App., 31 Pa. St. 44 ; 206, 212. 
 Lytle V. Lytle, 10 Watts 259 ; 55. 
 
 M. 
 
 Macaulay's Ex. v. Dismal Swamp Land Co., 
 
 2 Rob. (Va.) 507 ; 407. 
 Mackey v. Proctor, 12 B. Mon. 433 ; 266, 267. 
 
 46* 
 
 2K. 
 
546 
 
 Table op Cases Cited. 
 
 Macknet v. Macknet, 29 N. J. Eq. 54 ; 364. 
 Macfcworth v. Hinxman, 2 Keen 658 ; 179. 
 Madigan v. Walsh, 22 Wise. 501 ; 324. 
 Magee v. Mellon, 23 Miss. 585 ; 391. 
 
 V. Young, 40 Miss. 164 ; 300. 
 
 Malin v. Coult, 4 Ind. 535 ; 393. 
 
 Malone v. Majors, 8 Humph. 577 ; 366. • 
 
 V. McLaurin, 40 Miss. 161 ; 261, 264, 
 
 265. 
 Maloney v. Horan, 53 Barb. 29 ; 382. 
 Maltby's App., 47 Conn. 349 ; 65. 
 Manchester v. Durfee, 5 E. I. 549 ; 110. 
 Mandlebaum v. McDonell, 29 Mich. 78 ; 132. 
 Manhattan Co. v. Evertson, 6 Paige 457 ; 382. 
 Mann v. Edson, 39 Me. 25; 311, 312, 315, 
 
 316, 383. 
 Manning v. Laboree, 33 Me. 343 ; 314, 399. 
 Mansfield v. Mclntyre, 10 Ohio 27 ; 386. 
 Mantz V. Buchanan, 1 Md. Ch. 202 ; 329. 
 Manwaring v. Tabor, 1 Boot 79 ; 96. 
 Marable v. Jordan, 5 Humph. 417 ; 259. 
 Marble -v. Lewis, 53 Barb. 432 ; 399. 
 Mark v. Murphy, 76 Ind. 534 ; 300, 339. 
 Markham i*. Merritt, 7 How. (Miss.) 437; 
 
 310. 
 MarkiUie v. Eagland, 77 111. 98 ; 64. 
 Marshall v. Anderson, 1 B. Mon. 198 ; 405. 
 
 v. Conrad, 5 Call 364 ; 499, 501. 
 
 School V. Iowa Ev. Synod, 28 Iowa 360 ; 
 
 126. 
 Martin v. BaUou, 13 Barb. 119 ; 126, 148. 
 
 V. Commonwealth, 1 Mass. 347, 397 ; 466. 
 
 V. Lincoln, 4 Lea 289 ; 383. 
 
 V. Martin, 35 Ala. 560 ; 367. 
 
 V. Noble, 57 HI. 176 ; 383. 
 
 V. Stirling, 1 Boot 210 ; 212. 
 
 V. Strachan, 5 T. E. 107 ; 175. 
 
 V. Woods, 9 Mass. 377 ; 497. 
 
 Martin's Heirs v. Martin, 22 Ala. 86; 351. 
 Marvin v. Smith, 46 N. Y. 571 ; 375. 
 Marwick v. Andrews, ^5 Me. 525 ; 128, 141, 
 
 143. 
 Maslin v. Thomas, 8 Gill 18 ; 106, 111. 
 Mason v. Deese, 30 Ga. 308 ; 273. 
 Mast's App., 2 W. N. C. 404 ; 99. 
 Mathews v. Bennett, 20 N. H. 21 ; 280. 
 V. Smith, 1 E. L 22 ; 343. 
 
 Matlaok v. Eoberts, 54 Pa. St. 148 ; • 98, 99. 
 
 Matlock V. Lee, 9 Ind. 298 ; 391, 393. 
 
 Matthews v. Dunjee, 45 Barb. 69 ; 329. 
 
 V. Matthews, 1 Edw. 565 ; 345. 
 
 Mattocks V. Steams, 9 Vt. 326 ; 278. 
 
 May V. Jaynes, 20 Gratt. 692 ; 65. 
 
 V. Eumney, 1 Mich. 1 ; 299, 389, 392. 
 
 Mayberry v. Brien, 15 Pet. 21 ; 309, 327. 
 
 Mayo V. Hamlin, 73 Me. 182 ; 324. 
 
 Mayson v. Sexton, 1 Har. & McH. 275 ; 108. 
 
 McAfee v. Bettis, 72 N. C. 28 ; 356. 
 
 McAlister v. Nonenger, 54 Mo. 251 ; 385. 
 
 McAllister v. Tate, 11 Eich. 509; 69. 
 
 McArthur ii. Franklin, 15 Ohio St. 485 ; 340. 
 
 V. Franklin, 16 Ohio St. 193 ; 340. 
 
 McBride's Est., 81 Pa. St. 308 ; 283.' 
 
 McCallister v. Brand, 11 B. Mon. 371 ; 365, 
 366. 
 
 McCampbell v. McCampbell, Litt. (Ky.) 92; 
 203. 
 
 McCartee v. Teller, 2 Paige 511 ; 352, 355. 
 
 McCarthy v. Dawson, 1 Whart. 4 ; 128, 139. 
 
 McCarty v. Terry, 7 Lans. 236 ; 520. 
 
 McCauley v. Grimes, 2 G. & J. 318 ; 325, 
 326. 
 
 McCaw V. Galbraith, 7 Eich. 74; 500, 512. 
 
 McClanahan v. Porter, 10 Mo. 746 ; 401. 
 McCleary v. Ellis, 20 Am. L. Eeg. N. S. 180; 
 
 132. 
 MoClenaghan v. McClenaghan, 1 Strobh. Eq. 
 
 295; 503. 
 McClure v. Harris, 12 B. Mon. 261 ; 325, 
 
 347. 
 McQure's Heirs v. Douthitt, 3 Pa. St. 446 ; 
 
 60. 
 McClurg V. Schwartz, 87 Pa. St. 521 ; 300, 
 
 336. 
 McConnel v. Smith, 23 111. 611 ; 73. 
 McCorkle v. Black, 7 Eich. Eq. 407 ; 199. 
 McCormick v. Connell, 6 S. & E. 151 ; 145. 
 McCorry v. King, 3 Humph. 267 ; 213. 
 McCracken v. Kuhn, 73 Ind. 149 ; 337. 
 McCreery's Lessee v. AUender, 4 Har. & 
 McH. 409 ; 502. 
 
 V. Somerville, 9 Wheat, 354 ; 507, 508. 
 
 McCullough V. Allen, 3 Yeates 10 ; 359. 
 V. Irvine, 13 Pa. St. 438 ; 208. 
 
Table of Cases Cited. 
 
 547 
 
 McCullough's App., 12 Pa. St. 197 ; 130, 186. 
 McCullongh's Heirs v. Gilmore, 11 Pa. St. 
 
 370; 69. 
 McCullus V. Haines, 39 Ga. 195 ; 316. 
 McDaniel v. Grace, 15 Ark. 465 ; 263, 264. 
 
 V. McDaniel's Heirs, 3 Ired. L. 61 ; 398. 
 
 V. Richards, 1 McC. 187 ; 515. 
 
 McDonald v. Heylin, 4 Phila. 73 ;. 209. 
 
 V. Walgrove, 1 Sand. Ch. 274 ; 64.' 
 
 McDowall V. McDowaU, 1 Bail. Eq. 324 ; 359. 
 McElwain's Case, 29 111. 442 ; 377. 
 McFarland v. Febiger, 7 Ohio 194 ; 371, 378. 
 McGee v. McGee, 91 111. 548 ; 352. 
 McGehee v. McGehee, 42 Miss. 747 ; 398. 
 McGrath v. McGrath, 38 Ala. 246 ; 368. 
 McGregor v. Comstock, 3 Gomst. 408 ; 509. 
 
 V. Comstock, 17 N. Y. 163 ; 105. 
 
 McGuire v. Brown, 41 Iowa 650 ; 362. 
 McHenry v. Yokum, 27 lU. 160 ; 407. 
 Mcllvaine's Lessee v. Coxe, 4 Cr. 209 ; 414, 
 
 435, 436, 466, 468, 469, 475. 
 Mcintosh V. Ladd, 1 Humph. 459 ; 334. 
 Mclntyre v. Ramsey, 23 Pa. St. 317 ; 62. 
 Mclver v. Cherry, 8 Humph. 713 ; 335. 
 McKay ». Freeman, 6 Oreg. 449 ; 311. 
 McKee v. Brown, 43 111. 130 ; 381. 
 
 V. Cottle, 6 Mo. 416 ; 265. 
 
 V. Jones, 6 Pa. St. 429 ; 268. 
 
 V. Pfout, 3 Dall. 486 ; 257, 280. 
 
 V. Reynolds, 26 Iowa 578 ; 379. 
 
 McKelway o. Seymour, 29 N. J. L. 321; 
 
 128, 137. 
 McKinney v. Saviego, 18 How. 235 ; 498. 
 
 V. Stacks, 6 Heisk. 284 ; 196. 
 
 McKissick u. Pickle, 16 Pa. St. 140; 
 
 138, 142. 
 McLain v. Gregg, 2 A. K. Marsh 454 ; 
 McLaughlin v. Goodwin, 23 Ala. 846 ; 
 
 V. Goodwin, 22 N. J. Eq. 505 ; 404. 
 
 McLean v. MacDonald, 2 Barb. 534 ; 64. 
 McLeery v. McLeery, 65 Me. 172 ; 319, 394. 
 McLellan v. Turner, 15 Me. 436; 
 McLeod V. McDonnel, 6 Ala. 236; 
 McMahan v. Kimball, 3 Blackf. 1 ; 
 McMahon v. Russell, 17 Fla. 698 ; 
 McMillan v. Bobbins, 5 Ohio 28 ; 
 
 134, 
 
 252. 
 404. 
 
 67. 
 
 259, 266. 
 314, 315. 
 335, 381. 
 210. 
 
 McWilliams v. Nisley, 2 S. & B. 507 ; 131. 
 
 Mead v. Ballard, 7 WaU. 290 ; 138. 
 
 V. Mead, 39 Iowa 28 ; 340, 341. 
 
 Mechanics' Bank v. Williams, 17 Pick. 438 ; 
 
 278. 
 Medley v. Medley, 27 Gratt. 568 ; 350. 
 Meigs V. Dimock, 6 Conn. 458 ; 347. 
 Melizet's App., 17 Pa. St. 449 ; 300. 
 Melson v. Cooper, 4 Leigh 408 ; 69. 
 Memphis & Charleston B. R. v. Neighbors, 
 
 51 Miss. 413; 143. 
 Mendenhall v. Mendenhall, 8 Jones L. 287 ; 
 
 365. 
 Meraman's Heirs v. Caldwell, 8 B. Mon. 32; 
 
 279, 280. 
 Merceir v. Mo. R. F. S. & G. R. K., 54 Mo. 
 
 506; 55. 
 Mercer's Lessee v. Selden, 1 How. 37 ; 263. 
 Merle v. Andrews, 4 Tex. 200 ; 512. 
 
 V. Mathews, 26 Cal. 455 ; 499. 
 
 Merrifield v. Cobleigh, 4 Cush. 178 ; 137, 
 
 145. 
 Merrill v. Emery, 10 Pick. 507 ; 367. 
 Merritt v. Abendroth, 24 Hun 218 ; 60. 
 
 V. Disney, 48 Md. 344 ; 53. 
 
 V. Harris, 102 Mass. 326 ; 124. 
 
 V. Scott, 81 N. C. 385 ; 208. 
 
 Merriwether v. Sebree, 2 Bush 232 ; 349. 
 Meserve v. Meserve, 19 N. H. 240; 394. 
 Mesick v. New, 7 N. Y. 163 ; 1 98. 
 Metteer v. Wiley, 34 Iowa 214 ; 361 . 
 Meyer v. Mohr, 1 Robt. 333 ; 382. 
 Michigan State Bank v. Hastings, 1 Dougl. 
 
 225; 128, 137. 
 Mick V. Mick, 10 Wend. 379 ; 520. 
 Middleton v. McGrew, 23 How. 45 ; 522. 
 
 V. Rice, 6 Pa. L. J. 234 ; 129. 
 
 V. Smith, 1 Coldw. 144; 61. 
 
 V. Swain, Skinner 339 ; 39, 45. 
 
 Mildway's Case, 6 Co. 41 ; 117. 
 Miles V. Fisher, 10 Ohio 1 ; 54, 197. 
 
 V. Miles, 32 N. H. 147 ; 205. 
 
 Milford V. Worcester, 7 Mass. 52 ; 252. 
 Milledge v. Lamar, 4 Des. 617 ; 307, 350. 
 Miller v. Bledsoe, 61 Mo. 96 ; 279. 
 
 V. Harwell, 3 Murph. 194 ; 499. 
 
 V. Levi, 44 N. Y. 489 ; 188. 
 
 V. Macomb, 26 Wend. 229 ; 181. 
 
548 
 
 Table of Cases Cited. 
 
 MUler V. Shields, 55 Ind. 71 ; 211. 
 
 V. Stump, 3 Gill 304 ; 313. 
 
 V. Talley, 48 Mo. 503 ; 404, 405. 
 
 V. Wilson, 15 OHo 108 ; 312, 313, 382. 
 
 Miller's Est., 1 Tuck. 346 ; 210. 
 
 Milliken v. Welliver, 37 Ohio St. 460, 13 
 
 Eeporter 346 ; 363, 365, 368. 
 MiUimore v. MilHrnore, 40 Pa. St. 151 ; 386. 
 Mills V. Carter, 22 Vt. 104 ; 24. 
 
 V. Mills, 28 Barb. 454 ; 359. 
 
 V. Van Vorhies, 20 N. Y. 412; 325, 
 
 340. 
 Minnis v. Aylett, 1 Wash. 302 ; 36. 
 Minot V. Prescott, 14 JIass. 495 ; 127. 
 Missionary Soe. v. Calvert, 32 Gratt. 357 ; 65. 
 Mitchell V. Leavitt, SOConn. 587 ; 135. 
 — - V. MUler, 6 Dana 79 ; 402. 
 — - V. Mitchell, 8 Pa. St. 126 ; 337. 
 
 V. Poyas, 1 N. & M. 85 ; 389. 
 
 V. Wood, 60 Ga. 525 ; 355, 408. 
 
 Mitchener v. Atkinson, Phil. Eq. 23 ; 369. 
 Mizell V. Burnett, 4 Jones L. 249 ; 136. 
 Monroe aVan Meter, 100 111. 347 ; 259, 269. 
 Montana v. Lee, 2 Mont. 124 ; 500. 
 Montgomery v. Bruere, 2 South. 265 ; 314. 
 V. Dorion, 7 N. H. 475 ; 499, 501, 503, 
 
 513. 
 
 • V. Horn, 46 Iowa 285 ; 397. 
 
 V. Petriken, 29 Pa. St. 118 ; 187. 
 
 Mooberry v. Marye, 2 Munf. 453 ; 67. 
 Moody V. King, 2 Bing. 447 ; 308. 
 
 11. Seaman, 46 Mich. 74 ; 392. 
 
 Mooers ?;. White, 6 Johns. Ch. 360 ; 503, 509. 
 Mooney v. Maas, 22 Iowa 380 ; 335, 340. 
 Moore v. Heaseman, WOles 138 ; 37, 48. 
 
 V. Dimond, 5 E. I. 121 ; 68, 198. 
 
 V. Esty, 5 N. H. 479 ; 317, 319. 
 
 V. New York, 4 Sand. Sup. C't 456, 8 
 
 N.Y. 110; 300,332,333. 
 
 V. Pitts, 53 N. Y. 85 ; 150. 
 
 V. Eake, 2 Dutch. 574 ; 13, 375. 
 
 - — - V. Eollins, 45 Me. 493 ; 305, 306. 
 
 V. Steidel, 1 Disney 281 ; 363, 368. 
 
 V. Thomas, 1 Oreg. 201 ; 372. 
 
 V. Tisdale, 5 B. Mon. 352 ; 303, :W5, 
 
 496. 
 V. Waller, 2 Kand. 421 ; 394. 
 
 Moore v. Webb, 2 B. Mon. 282 ; 65. 
 
 V. Wilson, 10 Yeager 406 ; 498. 
 
 & Savil's Case, 2 Leon. 132 ; 117. 
 
 Moreau v. Detchemend, 18 Mo. 527 ; 105. 
 Morehouse v. Cothral, 1 Zab. 480 ; 98. 
 Morgan v. Conn, 3 Bush 58 ; 397. 
 
 V. Morgan, 2 Madd. 408 ; 270. 
 
 V. Morgan, 5 Madd. 248 ; 274. 
 
 Morris v. Potter, 10 E. I. 58 ; 66. 
 Morrison v. Semple, 6 Binn. 94 ; 60. 
 
 V. Stewart, 1 Hag. Consis. 417 ; 260. 
 
 Morrow v. Morrow, 3 Tenn. Ch. 532 ; 370. 
 Mosely v. Marshall, 27 Barb. 42 ; 209. 
 Moser v. Miller, 7 Watts 156 ; 1 26. 
 Mosher v. Mosher, 15 Me. 371 ; 305, 399. 
 
 D. Mosher, 32 Me. 142 ; 345. 
 
 Motley V. Sawyer, 38 Me. 68 ; 381. 
 Mudge V. Blight, Cowp. 352 ; 48, 64. 
 Mulhollan v. Thompson, 13 Ark. 232 ; 311. 
 MuUany v. Mullany, 3 Green Ch. 16 ; 269, 
 
 271. 
 Murray v. Fishbaok, 5 B. Mon. 403 ; 496. 
 
 ■ V. Kelly, 27 Ind. 42 ; 509. 
 
 Murrell v. Matthews, 2 Bay 397 ; 94. 
 Mussey v. Pierire, 24 Me. 559 ; 275, 503. 
 
 INT. 
 
 Naglee's App., 33 Pa. St. 89 ; 73. 
 Naylor v. Field, 5 Dutch. 292; 288. 
 Nazareth Lit. & Benev. Inst. v. Lowe, 1 B. 
 
 Mon. 257 ; 339, 347. 
 Neal V. Eobertson, 2 Dana 86 ; 285. 
 Neel V. Neel, 19 Pa. St. 324; 206, 211, 212. 
 Neely v. Butler, 10 B. Mon. 48 ; 263. 
 Neide v. Neide, 4 Eawle 75 ; 60. 
 Neilson v. Logan, 12 How. 98 ; 56. 
 Nevarre v. Sutton, 2 Eq. Abr. 9, pi. 6 ; 81. 
 Newhall v. Wheeler, 7 Mass. 189 ; 55. 
 Newkirk v. Newkirk, 2 Caines 345; 60, 
 
 117, 135. 
 Newton v. Cook, 4 Gray 46 ; 344. 
 — V. Griffith, 1 H. & G. Ill ; 98, 113. 
 
 ». Sly, 15 Mich. 391; 321. 
 
 Nicholson v. Settle, 57 Pa. St. 384; 112. 
 Nicoll V. N. Y. & E. E. E., 2 Kern. 121 ; 
 
 141. 
 
Table of Cases Cited. 
 
 549" 
 
 Nicoll V. Ogden, 29 111. 323 ; 310. 
 Nightingale v. Bunell, 15 Pick. 104 ; 97, 98, 
 
 110, 178. 
 
 V. Lawson, 1 Brown C. C. 440 ; 215. 
 
 Niles V. Gray, 12 Ohio St. 320 ; 60, 66. 
 Nims V. Bigelow, 45 N. H. 343 ; 381. 
 Noel V. Ewing, 9 Ind. 37 ; 300. 
 Noell V. Gamett, 4 Call 92 ; 367. 
 Nokes V. Smith, 1 Yeates 244 ; 107. 
 Norris v. Beyea, 3 Kern. 273 ; 197. 
 
 V. Clark, 2 Stockt. 51 ; 362. 
 
 V. Hoyt, 18 Cal. 217 ; 600, 502. 
 
 V. Laberee, 58 Me. 260 ; 125. 
 
 V. Milner, 20 Ga. 563 ; 142. 
 
 North V. Philbrook, 34 Me. 532 ; 55, 56. 
 Northcut V. Whipp, 12 B. Men. 65 ; 317, 
 
 332, 349, 350. 
 Norwood V. Marrow, 4 Dev. & Bat. L. 442 ; 
 
 334. 
 Notingham v. Calvert, 1 Ind. 527 ; 314, 327. 
 Nottingham ii. Jennings, 1 P, Wms. 25 
 
 181. 
 Nowell V. Boston Academy, 130 Mass. 209 
 
 128, 137. 
 Nye V. Taunton Br. E. B,., 113 Mass. 277 
 
 332. 
 
 o. 
 
 O'Brien v. EDiot, 15 Me. 125 ; 352. 
 
 V. Wetherill, 14 Kan. 616 ; 134. 
 
 O'Byme v. Feeley, 61 Ga. 77 ; 198. 
 
 Ocean Beach Ass'n v. Brinkley, 34 N. J. Eq. 
 
 438; 320,408. 
 O'Driscoll V. Koger, 2 Des. 295 ; 365. 
 CFerraU v. Simplot, 4 Greene (Iowa) 162 ; 
 
 373. 
 
 V. Simplot, 4 Iowa 381 ; 371, 408. 
 
 O'Flaherty v. Sutton, 49 Mo. 583 ; 406. 
 Ogboume v. Ogbourne, 60 Ala. 616 ; 404. 
 Ogden's App., 70 Pa. St. 501 ; 98. 
 Ogdensburgh Bank v. Arnold, 5 Paige 38; 
 
 342. 
 Oldham V. Sale, 1 B. Mon. 76 ; 324, 376. 
 Olmstead v. Olmstead, 4 Comst. 56 ; 67, 198. 
 Olmsted v. Blair, 45 Iowa 42 ; 390. 
 V. Harvey, 1 Barb. 102, 1 N. Y. (Comst.) 
 
 483; 62,63,67,197. 
 
 O' Neal V. Ward, 2 H. & McH. 93 ; 130. 
 Opdyke v. Bartles, 3 Stock. 133 ; 314, 344. 
 Orford v. Benton, 36 N. H. 395 ; 266. 
 Orndorff v. Turman, 2 Leigh 200 ; 111. 
 Orr t'. Hodgson, 4 Wheat. 453 ; 503, 523. 
 Orrick v. Boehm, 49 Md. 172 ; 363. 
 
 V. Bobbins, 34 JIo. 226 ; 369, 405. 
 
 Orser v. Hoag, 3 Hill 79 ; 498, 507, 523. 
 Orwings v. Norwood, 2 H. & J. 104 ; 524. 
 Osborn v. Osborn, 19 111. 124 ; 375. 
 Osgood V. Abbott, 58 Me. 73 ; 143. 
 Osterman v. Baldwin, 6 Wall. 116 ; 522. 
 Ostrander v. Spickhard, 8 Blackf. 227 ; 359. 
 Oswald V. Kopp, 26 Pa. St. 516 ; 61. 
 Otis V. Parshley, 10 N. H. 403 ; 317. 
 Owen V. Fitler, 102 Mass. 105 ; 188. 
 
 V. Paul, 16 Ala. 130 ; 373. 
 
 V. Bobbins, 19 111. 545 ; 312. 
 
 V. Slatter, 26 Ala. 547 ; 349. 
 
 Oxley V. Lane, 35 N. Y. 347 ; 131. 
 
 205. 
 
 407. 
 
 Packard v. Ames, 16 Gray 327 ; 125. 
 Paddelford v. Paddelford, 7 Pick. 152 ; 
 Page V. Page, 6 Cush. 196 ; 375, 395. 
 
 V. Palmer, 48 N. H. 386 ; 137. 
 
 Paine's Case, 8 Co. 35 a ; 261. 
 Palmer v. Casperson, 17 N. J. Eq. 204 ; 
 
 V. Downer, 2 Mass. 179 ; 466, 498. 
 
 Palmer's Case, 2 Hill Ch. 217 ; 208. 
 Parish v. Ward, 28 Barb. 328 ; 509. 
 Parker v. Nichols, 7 Pick. Ill ; 126. 
 
 V. Nightingale, 6 Allen 341 ; 134, 149. 
 
 V. Parker, 5 Mete. 134 ; 98. 
 
 Parkman v. Bowdoin, 1 Sumn. 359 ; 23, 97, 
 
 100. 
 Parks V. Brooks, 16 Ala. 529 ; 301, 323. 
 
 V. Hardey, 4 Bradf. 15 ; 399. 
 
 Parsons v. Miller, 15 Wend. 561 ; 142. 
 
 V. Winslow, 16 Mass. 361 ; 208. 
 
 Parsons' Heirs v. Inge, 5 Port. 327 ; 252. 
 Partridge v. Dorsey, 3 H. & J. 302 ; 104. 
 Paschall v. Passmore, 15 Pa. St. 295; 123, 
 
 124, 126. 
 Patch V. Keeler, 27 Vt. 252 ; 396. 
 Patrick v. Patrick, 77 111. 555 ; 381. 
 
550 
 
 Table of Cases Cited. 
 
 Patrick v. Sherwood, 4 Blateh. 112 ; 209, 
 
 210, 211. 
 Patterson v. Moore, 15 Ark. 222 ; 53, 54, 57, 
 
 195. 
 Pattison v. Thompson, 7 Ind. 282.; 68. 
 Paul V. "Ward, 4 Dev. 247 ; 275. 
 Paynes. Becker, 29 N.Y.S.C. 28; 392. 
 
 V. Payne, 11 B. Mon. 138 ; 274. 
 
 Paxson V. Potts, 3 N. J. Eq. 313 ; 370. 
 Peay v. Peay, 2 Rich. Eq. 409 ; 350. 
 Peck V. Walter, 26 Vt. 85 ; 15. 
 Peckham v. Hadmen, 8 E. 1. 160 ; 318, 329. 
 Peiton V. Banks, 1 Vem. 65 ; 39, 41, 45. 
 Pemberton v. Hicks, 1 Binn. 1 ; 281, 284. 
 
 V. Pemberton, 29 Mo. 408 ; 361. 
 
 Pendleton i). Vandevier, 1 Wash. (Va.) 381 ; 
 
 212. 
 Pennington v. YeU, 11 Ark. 236 ; 392. 
 Pennock's Est., 20 Pa. St. 268 ; 69. 
 Penrhyn v. Hughes, 5 Ves. 107 ; 215. 
 Pense v. Hixon, 8 Iowa 402 ; 336. 
 People V. Brown, 1 Caines 424 ; 145. 
 
 V. ConkUn, 2 HlU 67 ; 501, 503, 504, 513. 
 
 V. Folsom, 5 Cal. 573 ; 449. 
 
 V. Gerke, 5 Cal. 381 ; 522. 
 
 V. Irvin, 21 Wend. 128 ; 508. 
 
 V. Snyder, 41 N. Y. 397 ; 518. 
 
 D. Society, 2 Paine 545 ; 142. 
 
 Peppard v. Deal, 9 Pa. St. 140 ; 59, 63. 
 Perkins v. Little, 36 Me. 383 ; 304. 
 Perrin v. Blake, 4 Burr. 2579 ; 91. 
 Perry v. Kline, 12 Gush. 118 ; 100. 
 
 V. Ferryman, 19 Mo. 469 ; 359. 
 
 — - V. Scott, 51 Pa. St. 119 ; 125. 
 
 V. Tollier, 1 Dev. & Bat. Eq. 441 ; 
 
 Petro V. Cassiday, 13 Ind. 289 ; 146. 
 Pettijohn v. Beasley, 1 Dev. & Bat. 254 ; 
 Pettee v. Case, 2 Allen 546 ; 140. 
 Pettywood v. Cooke, Cro. Eliz. 52 ; 37, 39. 
 Peyton v. Berry, 2 P. Wms. 626, 783 1 152. 
 
 V. Jeflfries, 50 111. 143 ; 406. 
 
 «. Smith, 4 McC. 476 ; 72. 
 
 Phelps V. Chesson, 12 Ired. L. 194 ; 143. 
 Philadelphia v. Girard, 45 Pa. St. 9 ; 137. 
 Philips et al. v. Smith, 4 McC. 452 ; 511. 
 Phillips V. AUen, 7 Allen 115 ; 211. 
 V. Ditto, 2 Duv. 549 ; 261, 262, 265, 280. 
 
 204. 
 
 366. 
 
 PhilUps V. Medburry, 7 Conn. 568 ; 130. 
 
 V. Moore, 10 Otto 208 ; 499. 
 
 V. Thompson, 73 N. C. 543 ; 54. 
 
 Phinney v. Johnson, 13 S. Car. 25 ; 390. 
 Pickett V. Lyles, 5 S. Car. 275 ; 323. 
 V. Peay, 2 Const. Kep. (1 Ser.) 746, 3 
 
 Brev. 545; 359. 
 Pierce v. Hakes, 23 Pa. St. 231 ; 98, 265. 
 
 V. Wmiams, Penning. 709 ; 395. 
 
 Pierson v. Hitchner, 25 N. J. Eq. 129 ; 401. 
 Pifer V. Ward, 8 Blackf. 252 ; 339. 
 Pike V. Dnderhill, 24 Ark. 124; 398. 
 PUlow V. Wade, 31 Ark. 678 ; 379. 
 Pinkham v. Gear, 3 N. H. 163 ; 394. 
 Piper V. Richardson, 9 Mete. 155 ; 502. ' 
 Piper's Est., 2 W. N. C. 711 ; 201, 207, 2ia 
 Pitt V. Jackson, 2 Bro. C. C. 51 ; 274. 
 Pittsburgh, Va. & C. E. E. v. Bentley, 6 W. 
 
 K C. 289; 204. 
 Pizzala v. Campbell, 46 Ala. 35 ; 404. 
 Planter's Bank v. Davis, 31 Ala. 626 ; 266. 
 Piatt's Est., 2 W. N. 0. 468 ; 280. 
 Plumb V. Tubbs, 41 N. Y. 442 ; 134. 
 Plummer v. Nejle, 6 W. & S. 91 ; 139. 
 Plympton v. Boston, 10 Mass. 547 ; 210. 
 Poindexter v. Poindexter, 1 Ired. Eq. 286 
 
 204. 
 Poindexter's Ex'rs v. Green, 6 Leigh 504 
 
 209. 
 Police Jury v. Reeves, 6 Mart. (N. S.) 221 
 
 138. 
 Pollock V. Speidel, 17 Ohio St. 439 ; 94, 96, 
 
 105. 
 Pool V. Blaikie, 53 111. 495 ; 269. 
 Poor V. Eobinson, 10 Mass. 131 ; 443. 
 Popkin V. Bumstead, 8 Mass. 491 ; 342. 
 Porchi). Fries, 18N. J. Eq. 204; 288. 
 Porter v. Ewing, 24 111. 617 ; 315. 
 
 V. Fry, 1 Ventr. 202 ; 156. 
 
 i). Wheeler, 13 Mass. 504; 345. 
 
 Portington's Case, 10 Co. 41 ; 188, 370. 
 Post V. Weil, 15 N. Y. S. C. 418 ; 134. 
 Potter V. Everitt, 7 Ired. Eq. 152 ; 393. 
 Pott's App., 30 Pa. St. 168 ; 99. 
 PoweU V. Gossom, 18 B. Mon. 179 ; 265. 
 V. Monson & B.Mfg. Co., 3 Mason 347 ; 
 
 301, 320, 370, 399. 
 
Table of Cases Cited. 
 
 551 
 
 Prater v. Hoover, 1 Cold. 544; 266. 
 Pratt V. Felton, 4 Cush. 174; 366. 
 
 V. Flamer, 5 H. & J. 10 ; 97. 
 
 V. Teffl, 14 Mich. 191 ; 303, 304. 
 
 Prescott V. Prescott, 10 B. Mon. 58 ; 100. 
 
 V. Walker, 16 N. H. 340 ; 321. 
 
 Price V. Hobbs, 47 Md. 359 ; 398, 399, 400, 
 
 405. 
 
 V. Johnston, 4 Yeates 526 ; 300, 391. 
 
 V. Price, 6 Dana 107 ; 304. 
 
 V. Taylor, 28 Pa. St. 95 ; 100. 
 
 V. Woodford, 43 Mo. 247 ; 363. 
 
 Priest V. Cummings, 16 Wend. 617; 302, 
 
 376. 
 Pritchitt V. Kirkman, 2 Tenn. Ch. 390 ; 398. 
 Pritts V. Eitchey, 29 Pa. St. 71 ; 313. 
 Proctor V. Bigelow, 38 Mich. 282 ; 392. 
 Pugh !). Bell, 2 T. B. Mon. 125 ; 312. 
 PuUiam v. Byrd, 2 Strobh. Eq. 134 ; 199. 
 Purcell V. Wilson, 4 Gratt. 16 ; 60. 
 Purczell V. Smidt, 21 Iowa 540 ; 516. 
 Purdy V. Purdy, 3 Md. Ch. 547 ; 313. 
 Purefoy v. Rogers, 2 Saund. 388 ; 176. 
 Pynchon v. Lester, 6 Gray 314 ; 309. 
 
 Q. 
 
 Quarles v. Garrett, 4 Des. 145 ; 365. 
 Queen Anne's County Poor Trustees D.Pratt, 
 
 lOMd. 5; 332. 
 Quin V. Coleman, 42 Miss. 386 ; 299. 
 Quintaine v. Tomkins, 1 N. Mex. 29 ; 499. 
 
 Kabb V. Griffin, 26 Miss. 579 ; 264. 
 Eacouillat v. Sansevain, 32 Cal. 376 ; . 500. 
 Bail V. Dotson, 14 S. & M. 176 ; 65, 199. 
 Eailroad v. Boyer, 13 Pa. St. 496 ; 204. 
 Eaines v. Corbin, 24 Ga. 185 ; 369. 
 Eake v. Lawshee, 4 Zab. 613 ; 13. 
 Balls V. Hughes, 1 Dana 407 ; 389, 390. 
 Ealston v. Ealston, 3 Iowa 533 ; 402. 
 Eambo v. Bell, 3 Ga. 207 ; 405. 
 Eamires v. Kent, 2 Cal. 558 ; 499, 500. 
 Ramsdell v. Eamsdell, 21 Me. 288 ; 199." 
 Eandall v. Marble, 69 Me. 310 ; 129. 
 
 Randolph v. Doss, 3 How. (Miss.) 205; 325. 
 Rands v. Kendall, 15 Ohio 671 ; 312, 314, 
 
 317. 
 Bank v. Hanna, 6 Ind. 20 ; 333. 
 Eannells v. Gerner, 9 Mo. App. 506 ; 376. 
 Eansley v. Stott, 26 Pa. St. 126 ; 106. 
 Eansom v. Nichols, 22 N. Y. 110 ; 289. 
 Eausch V. Moore, 48 Iowa 611 ; 392. 
 Eaverty v. Fridge, 3 'McL. 230 ; 373, 374. 
 Rawlings v. Adams, 7 Md. 26 ; 263. 
 
 V. Lowndes, 34 Md. 639 ; 327. 
 
 Rawlins v. Buttel, 1 Houst. 224; 385, 399. 
 Rawson-D. School Dist. No. 5, 7 Allen 125; 
 
 123, 137. 
 Rayner v. Lee, 20 Mich. 384 ; 391. 
 Read v. Read, 5 Call 207 ; 499. 
 Reaume v. Chambers, 22 Mo. 36; 53, 55, 
 
 265. 
 Rector of King's Chapel v. Pelham, 9 Mass. 
 
 501 ; 142. 
 Redpath v. Rich, 3 Sand. Sup. Ct. 79 ; 520. 
 Redus V. Hayden, 4.3 Miss. 614 ; 264. 
 Reed v. Ash, 30 Ark. 775 ; 393. 
 
 V. Campbell, Meigs 378 ; 359. 
 
 V. Dickerman, 12 Pick. 146 ; 351, 365, 
 
 367. 
 
 «). Kennedy, 2 Strobh. 67;' 309. 
 
 V. Morrison, 12 S. & R. 18 ; 314, 315, 
 
 391. 
 
 V. Eeed, 3 Head 491 ; 266. 
 
 V. Reed, 16 N. J. Eq. 248 ; 206. 
 
 V. Whitney, 7 Gray 533 ; 312. 
 
 Reeder v. Spearman, 6 Rich. Eq. 88 ; 201. 
 Reel V. Elder, 62 Pa. St. 308 ; 385. 
 Reese v. Waters, 4 W. & S. 145; 275, 276. 
 Reeves v. Craig, 1 Winst. 209 ; 128. 
 Register v. Eowell, 3 Jones L* 312 ; 57, 195. 
 Eeid V. Thompson, 74 Ind. 252 ; 600. 
 Eeiff V. Horst, 55 Md. 42 ; 300, 380. 
 
 V. Eeiff, 64 Pa. St. 134 ; 205. 
 
 Eeifsnyder v. Hunter, 19 Pa. St. 41 ; 69, 
 
 131, 137. 
 Eeiley v. Bates, 40 Mo. 468 ; 396. 
 Eeinhai-t v. Lantz, 37 Pa. St. 491 ; 104, 112. 
 Eeitzel v. Kard, 65 N. C. 673 ; 318. 
 Eenfroe's Heirs v. Taylor, 12 B. Mon. 402 ; 
 
 404. 
 
552 
 
 Table of Cases Cited. 
 
 Reynolds v. Lee, 12 Reporter 702 ; 65. 
 
 V. Reynolds, 5 Paige 161 ; 317, 318. 
 
 V. Reynolds, 24 Wend. 193 ; 384, 385, 
 
 386. / 
 
 Rheim v. Robbins, 20 Iowa 45 ; 516. 
 Rice V. Boston & Worcester R. R., 12 Allen 
 
 141; 142. 
 
 V. Lumley, 10 Ohio St. 596 ; 388. 
 
 V. Nelson, 27 Iowa 148 ; 389. 
 
 V. Rice, 2 W. N. C. 672 ; 284. 
 
 Rich V. Rich, 7 Bush 53 ; 385, 404. 
 Richardson v. Noyes, 2 Mass. 56 ; 66. 
 
 V. Skolfield, 45 Me. 386 ; 323. 
 
 V. Yardley, Moore 397, case 519 ; 78. 
 
 Richart v. Bichart, 30 Iowa 465 ; 864. 
 Rickard v. Talbird, Rice Eq. 158 ; 342. 
 Riddick v. Wa'lsh, 15 Mo. 519 ; 340, 408. 
 Riddlesberger v. Mentzer, 7 Watts 141 ; 339. 
 Bidgeley v. McLaughlin, 3 Har. & McH. 
 
 220; 108. 
 Ridgway v. Masting, 23 Ohio St. 294 ; 381, 
 
 382. 
 
 V. McAlpine, 31 Ala. 458 ; 389. 
 
 V. Parker, 10 Mass. 305 ; 61. 
 
 Riggs V. Sally, 15 Me. 408 ; 98, 104, 110. 
 Rigler v. Cloud, 14 Pa. St. 361 ; 270, 271, 272. 
 Riley v. Glamorgan, 15 Mo. 331 ; 396. 
 Ring V. Hardwick, 2 Bear. 352; 181. 
 Rivers «. Rivers, 3 Des. 190; 354. 
 Roach V. Davidson, 3 Brev. 80 ; 404. 
 Robbins v. Kinzie, 45 111. 354 ; 393. 
 Roberts v. Bixwell, 1 Atk. 606 ; 270. 
 
 V. Shroyer, 68 Ind. 64 ; 300, 337, 338. 
 
 V. Whiting, 16 Mass. 186 ; 204, 278. 
 
 Robertson v. Robertson, 25 Iowa 350; 379. 
 
 V. Stevens, 1 Ired. Eq. 247 ; 268. 
 
 Robins v. Roffins, 8 Blackf. 174; 332. 
 Robinson v. Bates, 3 Mete. 40 ; 314, 381, 382. 
 
 V. Buck, 71 Pa. St. 386 ; 284, 331. 
 
 V. Codman, 1 Sumn. 121 ; 262, 320, 321. 
 
 V. Miller, 1 B. Mon. 88 ; 312, 402. 
 
 V. Miller, 2 B. Mon. 284 ; 211, 402. 
 
 V. Moore, 56 Ala. 241 ; 375, 376. 
 
 Rochford v. Hackman, 9 Hare 481 ; 214. 
 Rochon V. Lecatt, 2 Stew. (Ala.) 429 ; 274, 
 
 282, 285. 
 Rockwell V. Morgan, 2 Beas. 389 ; 206. 
 
 Roe V. Asbumer, 5 Tr. 163 ; 192. 
 
 V. Bolton, 2 W. Black. 1045 ; 39, 45. 
 
 ■!;. Budd, 21 Md. 477 ; 113. 
 
 — V. Harrison, 2 T. R. 425 ; 118. 
 Began v. Walker, 1 Wise. 527 ; 150. 
 Rogers v. Moore, 11 Conn. 553 ; 212. 
 
 V. Sebastian Co., 21 Ark. 440 ; 126. 
 
 V. Woody, 23 Mo. 548 ; 373. 
 
 Rolfe 11. Harris, 2 Price 210 n. ; 118. 
 Rollins V. Riley, 44 N. H. 9 ; 128, 136, 140, 
 
 144. 
 Rose V. HUl, 3 Burr. 1881 ; 37. 
 
 V. Rose, 6 Heisk. 533 ; 331. 
 
 Rosenthal v. Mayhugh, 33 Ohio St. 155 ; 377. 
 Roser v. Slade, 3 Md. Ch. 91 ; 70. 
 Resetter v. Simmons, 6 S. & R. 452 ; 60. 
 Ross V. Adams, 4 Dutch. 160 ; 288. 
 
 V. Blair, Meigs 525 ; 393. 
 
 V. Tremain, 2 Mete. 495 ; 141. 
 
 V. Wilson, 58 Ga. 249 ; 309, 395. 
 
 Rosseell v. Jarvis, 15 Wise. 571 ; 213. 
 Rossiter v. Cossit, 15 N. H. 38 ; 314, 344. 
 Roundtree v. Talbot, 89 111. 246 ; 203. 
 Rowel V. Sharp, 1 Ch. Rep. 219 ; 215. 
 Rowell V. Jewett, 69 Me. 293; 128, 141, 145, 
 
 147. 
 Rowland v. Rowland, 2 Sneed 543 ; 331. 
 Roy V. Garrett, 2 Wash. 31 ; 36. 
 Royster v. Royster, Phil. (N. C.) L. 226; 
 
 317. 
 Rubeck v. Gardner, 7 Watts 445 ; 521. 
 Rubey v. Barnett, 12 Mo. 3 ; 65. 
 Ruch V. Rock Island, 7 Otto 693 ; 142. 
 Ruffin V. Cox, 71 N. C. 253 ; 329. 
 Runey v. Edmands, 15 Mass. 291 ; 277. 
 Runyan v. Stewart, 12 Barb. 537 ; 343. 
 Rupp V. Eberley, 79 Pa. St. 141 ; 62. 
 Rush V. Kinney, 3 Ind. 50 ; 59. 
 Russ V. Perry, 49 N. H. 527 ; 301 . 
 Russell V. Austin, 1 Paige 193 ; 344. 
 
 V. Elden, 15 Me. 193 ; 61. 
 
 V. Gee, 2 Mills 254 ; 399. 
 
 V. Rumsey, 35 111. 362 ; 373, 374. 
 
 Rutherford o. Graham, 9 N.Y. S. C. 796; 
 
 395. 
 ^— V. Munee, Walk. (Miss.) 370 ; 314, 341. 
 V. Read, 6 Humph. 423 ; 336. 
 
Table of Cases Cited, 
 
 553 
 
 s. 
 
 Sabriego v. White, 30 Tex. 576 ; 502. 
 Sackett v. Mallory, 1 Mete. 355 ; 127. 
 
 V. Sackett, 8 Rich. 314; 211. 
 
 Safford v. Safford, 7 Paige 259 ; 318. 
 Sagar v. Eckert, 3 Bradw. 412 ; 204, 216. 
 Sale V. Crutchfield, 8 Bush 636; 99, 111. 
 Saltmarsh v. Smith, 32 Ala. 404 ; 393. 
 Sample*. Sample, 2 Yeates 433; 360. 
 Sanborn v. Eice, 127 Mass". 387 ; 149. 
 
 V. Woodman, 5 Gush. 36 ; 128, 150. 
 
 Sandford v. Jackson, 10 Paige 266 ; 359, 369. 
 Sanford v. McLean, 3 Paige 117 ; 332, 376. 
 Sargeant v. Fuller, 105 Mass, 119 ; 343. 
 Sargent v. Eoberts, 37 Me. 135; 353. 
 
 V. Towne, 10 Mass. 303 ; 61, 211. 
 
 Saris V. Saris, 3 Sand. Ch. 60 ; 205, 212. 
 Sauder v. Morningstar, 1 Yeates 313 ; 104. 
 Saunders v. Harres, 44 N. Y. 353 ; 54. 
 Savage v. Burnham, 17 N. Y. 562 ; 360. 
 
 V. Crill, 26 N. Y. S. C. 4 ; 380, 387. 
 
 Sawyer v. Dozier, 7 Jones {N. C.) L. 7 ; 65. 
 Saxton !).-MitcheU, 78 Pa. St. 481 ; 60. 
 Saylor v. Koehn, 3 W. & S. 165 ; 68. 
 Scammon v. Campbell, 75 111. 223 ; 399. 
 Scanlan v. Porter, 1 Bail. 427 ; 66. 
 
 V. Wright, 13 Pick. 523 ; 499, 501. 
 
 Scatterwood v. Edge, 1 Salk. 229 ; 158. 
 Schemerhom v. Negus, 1 Den. 448 ; 131. 
 Schiffer v. Pruden, 64 N. Y. 47 ; 386. 
 Schnebley v. Schnebley, 26 111. 116; 305, 
 
 397. 
 Schulenberg v. Harriman, 21 Wall. 44; 
 
 142, 145. 
 Scott V. Cohen, 2 N. & McC. 293 ; 503. 
 V. Croasdale, 1 Yeates 75, 2 Dallas 127 ; 
 
 335. 
 
 V. Scott, 1 Bay 504 ; 394, 397. 
 
 V. Stipe, 12 Ind. 74 ; 150. 
 
 V. Thorpe, 1 Edw. Ch. 512; 503. 
 
 ScoveU V. Cabell, Cro. Eliz. 107 ; 117, 119. 
 Scruggs V. Murray, 2 Lea 44 ; 214. 
 Secheverel v. Dale, Poph. 194 ; 102. 
 Secrest v. McKenna, 6 Bich. Eq. 72 ; 313. 
 Sedgwick v. Laflin, 10 Allen 420 ; 53. 
 Seekright v. Moore^ 4 Leigh 30 ; 327. 
 47 
 
 Seibert v. Wise, 70 Pa. St. 147 ; 97. 
 Self 's Adm'r v. Tune, 6 Munf. 470 ; 202. 
 Selleck v. Selleck, 8 Conn. 85 ; 352. 
 Sentill v. Eobeson, 2 Jones (N. C.) Eq. 510 ; 
 
 263. 
 Sergison v. Sealey, 2 Atk. 416; 103. 
 Sewall V. Lee, 9 Mass. 363 ; 300, 301, 302. 
 Seymor's Case, 10 Co. 95 b; 105. 
 Shackelford v. Hall, 19 111. 212 ; 128, 130. 
 Shaeffer v. Weed, 8 111. 513 ; 339. 
 Shaffer v. Eichardson, 27 Ind. 122; 384. 
 Shanks v. Dupont, 3 Pet. 242 ; 498. 
 Sharon Iron Co. v. Erie, 41 Pa. St. 342; 
 
 146, 147. 
 Sharp V. Petit, 4 Yeates 413 ; 103, 105, 106. 
 
 V. Pettit, 1 Yeates 389 ; 345. 
 
 Sharpley v. Jones, 5 Harring. 373; 392, 
 
 404. 
 Shattuck V. Gragg, 23 Pick. 88 ; 305, 394, 
 
 403. 
 
 V. Hastings, 99 Mass. 23 ; 136. 
 
 Shaw V. Boyd, 5 S. & E. 309 ; 355. 
 
 V. Galbraith, 7 Pa. St. Ill ; 24. 
 
 V. Hussey, 41 Me. 495 ; 199. 
 
 ■ • V. Russ, 14 Me. 432 ; 375. 
 
 V. EusseU, Cowp. 661 ; 42, 65. 
 
 V. White, 13 Johns. 179 ; 399. 
 
 Sheafe v. Gushing, 17 N. H. 508 ; 197. 
 Sheaffe v. O'NeH, 1 Mass. 256 ; 499, 501. 
 Sheaffer v. Sheaffer, 37 Pa. St. 525 ; 128, 
 
 144. 
 Shearer r. Eanger, 22 Pick. 447 ; 301. 
 Sheldon v. Bliss, 8 N. Y. 31 ; 353, 359. 
 
 V. Eose, 41 Conn. 371 ; 73. 
 
 Shelton v. Carrol, 16 Ala. 146 ; 405. 
 Sheppard v. Wardell, Coxe 452; 372, 373. 
 Sheppard v. Howard, 2 N. H. 507 ; 375. 
 Shermer v. Shermer, 1 Wash. 271 ; 36. 
 Sherwood k. Vandenburgh, 2 Hill (N. Y.) 
 
 303; 317. 
 Shields v. Baits, 5 J. J. Mar. 13; 391, 392. 
 
 V. Lyon, Minor 278 ; S23. 
 
 Shinn v. Holmes, 25 Pa. St. 142 ; 69. 
 
 V. Eoberts, Spen. (N. J.) 435 ; 126. 
 
 Shippen's App., 80 Pa. St. 391 ; 216. 
 Shirey v. Postlethwaite, 72 Pa. St. 39 ; 73. 
 Shirtz V. Shirtz, 5 Watts 255 ; 399. 
 
654 
 
 Table of Cases Cited. 
 
 Shoemaker v. Huffnagle, 4 W. & S. 437 ; 
 
 95, 100. 
 — - V. Walker, 2 S. & E. 554; 262, 266, 
 
 312,320. 
 Shoofstall V. Powell, 1 Grant 19 ; 98. 
 Shores v. Carley, 8 Allen 425 ; 264, 266. 
 Shortall V. Hinckley, 31 111. 219 ; 277, 278, 
 
 280, 285. 
 Shotwell V. Sedam, 3 Ohio 5 ; 391. 
 Shutt V. Eambo, 57 Pa. St. 149 ; 69. 
 Sidney v. Sidney, 3 P. Wms. 269 ; 281, 282, 
 
 358. 
 Siemssen v. Bofer, 6 Cal. 250 ; 515, 522. 
 Silsby V. BuUock, 10 Allen 94 ; 279. 
 Simar v. Canaday, 53 N. Y. 298 ; 333. 
 Simmons v. Latimer, 37 Ga. 490 ; 336. 
 Simontonw. Gray, 34Me. 50; 314,343. 
 
 V. Houston, 78 N. C. 408 ; 364. 
 
 Simpson v. Leech, 86 111. 286 ; 309. 
 Simpson's App., 8 Pa. St. 199 ; 378. 
 Singletary v. Hill, 43 Tex. 858 ; 54. 
 Singleton's Heirs o. Singleton, 5 Dana 87 ; 
 
 402, 404. 
 Singree v. Welch, 32 Ohio St. 320; 380, 
 
 381. 
 Sip V. Lawback, 2 Harris. (N. J.) 442 ; 391, 
 
 397. 
 Sisk V. Smith, 6 111. 503 ; 300. 
 Sisson V. Donnelly, 7 Vroom 432 ; 53, 54. 
 
 V. Seabury, 1 Sumn. 235 ; 199. 
 
 Sistare v. Sistare, 2 Boot 468 ; 303. 
 Skillin V. Lloyd, 6 Cold. 563 ; 70. 
 Skinner v. White, 17 Johns. 357 ; 118. 
 Slater v. Nason, 15 Pick. 345 ; 509. 
 Slaughter v. Culpepper, 44 Ga. 319 ; 327. 
 Sloan V. Whitaker, 58 Ga. 319 ; 367. 
 Smart v. Waterhouse, 10 Yerg. 94 ; 367. 
 
 V. Whaley, 6 Sm. & M. 308 ; 302. 
 
 Smith V. Addleman, 5 Blackf. 406; 312, 
 
 399. 
 
 V. Brannan, 13 Cal. 107 ; 142. 
 
 V. Burtis, 9 Johns. 180; 228, 235, 
 
 237. 
 V. Coffin, 2 H. Black. 444; 440, 479, 
 
 480, 483. 
 
 V. Cooper, 59 Ala. 494 ; 213. 
 
 V. Daniel, 2 McC. Eq. 143 ; 211, 212. 
 
 Smith V. Fulkinson, 25 Pa. St. 109 ; 65. 
 
 V. Handy, 16 Ohio 191 ; 372. 
 
 V. Jackson, 2 Edw. 28 ; 310. 
 
 V. Jewett, 40 N. H. 530 ; 205. 
 
 V. Kniskern, 4 Johns. Ch. 9 ; 359, 361. 
 
 V. McCarty, 119 Mass. 519 ; 328. 
 
 V. Paysinger, 2 Mills. Const. K. 59 ; 
 
 390. 
 
 V. Poyas, 2 Des. 65 ; 205, 212. 
 
 ?). Smith, 2H. & J. 314; 113. 
 
 V. Smith, 6 Lans. 313 ; 395. 
 
 V. Smith, 5 Ohio St. 32 ; 302. 
 
 V. Stanley, 37 Me. 11 ; 328. 
 
 s.Woodworth, 4 Dillon 584; 385. 
 
 D, Wright, 2 Ohio 506 ; 390. 
 
 — ^ V. Zaner, 4 Ala. 99 ; 499, 503. 
 Smither v. Smither, 9 Bush 230 ; 367. 
 Smith's App., 23 Pa. St. 9 ; 98, 102, 306. 
 
 Est., 9Phila. 348; 73. 
 
 Exr. V. Smith, 30 Ala. 642 ; 299. 
 
 Heirs v. Smith, 5 Dana 179 ; 398. 
 
 Snelgrove v. Snelgrove, 4 Des. 274 ; 368. 
 Snow V. Stevens, 15 Mass. 278 ; 314. 
 Sohier v. Eldredge, 103 Mass. 345 ; 207, 208. 
 
 V. Trinity Church, 109 Mass. 1 ; 124. 
 
 Somes V. Skinner, 3 Pick. 52 ; 490. 
 Somers v. Pierson, Harrison (N. J.) 181 ; 100. 
 Soule V. Soule, 5 Mass. 61 ; 109. 
 Southard v. Central E. E. N. J., 2 Dutch. 13 ; 
 
 125, 138, 143. 
 Spangler v. Stanler, 1 Md. Ch. 36; 307. 
 Sparrow v. Kingman, 1 Comst. 242; 317. 
 Spaulding v. Hallenbeck, 39 Barb. 79 ; 128, 
 
 138, 149. 
 Speaks v. Einard, 48. Car. 54 ; 338. 
 Spencer v. Weston, 1 Dev. & Bat. 213 ; 389, 
 
 406. 
 Sperry v. Sperry, 8 N. H. 477 ; 143. 
 Spessard v. Eohrer, 9 Gill 261 ; 55. 
 Spiva V. Jeter, 9 Eich. Eq. 434 ; 353. 
 SpoflFard v. Manning, 6 Paige 383; 128, 148. 
 Spraker v. Alstyne, 18 Wend. 200 ; 67. 
 Spratt V. Spratt, 4 Pet. 393 ; 513, 515. 
 Standish v. Eadley, 2 Ark. 171 ; 80. 
 Stanley v. Colt, 5 Wall. 119 ; . 123, 124, 136. 
 Stanwood v. Dunning, 14 Me. 290 ; 325. 
 Staples V. Brown, 13 Allen 64 ; 279. 
 
Table of Cases Cited. 
 
 555 
 
 Stark V. Hunton, Saxt. 216 ; 359, 362. 
 Starks v. Traynor, U Humph. 292 ; 521. 
 Starr v. Pease, 8 Conn. 545 ; 282. 
 State V. Blackmo, 8 Blackf. 246 ; 516. 
 
 V. Boston C. & M. E. K., 25 Vt. 433 ; 513. 
 
 V. Primrose, 3 Ala. 546 ; 496. 
 
 V. Wincroft, 76 N. C. 38 ; 300. 
 
 St. Clair v. Morris, 9 Ohio 15 ; 313, 340. 
 Stearns v. Godfrey, 16 Me. 158 ; 187, 188. 
 
 V. Harris, 8 Allen 597 ; 143. 
 
 V. Swift, 8 Rich. 532 ; 372. 
 
 Stedman v. Fortune, 5 Conn. 462 ; 392. 
 Steele v. Carroll, 12 Pet. 201 ; 314. 
 
 V. Fisher, 1 Edw. 435 ; 368. 
 
 V. Gellatty, 41 111. 39 ; 389. . 
 
 V. Thompson, 14 S. & E. 84 ; 58, 60, 62. 
 
 Stegall V. StegaU's Adm'r, 2 Brock (U. S.) 
 
 256; 385. 
 Sieger's Est., 3 W. N. C. 368 ; 129. 
 Stehman v. Huber, 21 Pa. St. 260 ; 277. 
 Stephens v. Gibbes, 14 Fla. 331 ; 366, 367. 
 
 V. Hume, 25 Mo. 349 ; 265. 
 
 Stephen's Heir v. Swann, 9 Leigh 404 ; 499. 
 Stephenson v. Osborne, 41 Miss. 119 ; 379, 
 
 380. 
 Sterling v. Penlington, 7 Vin. 149, pi. 11 ; 
 
 225, 265. 
 Stevens v. Dewing, 2 Vt. 411 ; 54. 
 
 V. Henry, 6 Blackf. 475 ; 373. 
 
 i). Owen, 25 Me. 94; 304,305,371. 
 
 V. Eollingsford Savings Bank, 70 Me. 
 
 180; 395. 
 
 V. Swift, 4 J. J. Mar. 64 ; 312, 320, 346. 
 
 V. Winship, 1 Pick. 318 ; 198, 199. 
 
 Stevenson v. Blight, 7 Mon. 143 ; 503. 
 
 V. Dunlap, 7 T. B. Mon. 134 ; 509. 
 
 Stewart v. Barclay, 2 Bush 550 ; 266. 
 
 V. Barrow, 7 Bush 368 ; 131. 
 
 V. Brady, 3 Bush 623 ; 131. 
 
 V. Clark, 13 Mete. 79 ; 195. 
 
 V. McMartin, 5 Barb. 438 ; 392. 
 
 V. Pearson, 4 S. Car. 4 ; 398. 
 
 V. Boss, 50 Miss. 776 ; 259, 284, 288. 
 
 V. Smith, 4 Abb. App. 306 ; 395. 
 
 J). Smith, 39 Barb. 167 ; 395. 
 
 V. Stewart, 5 Conn. 317 ; 334. 
 
 V. Stewart, 43 Ga. 294 ; 387. 
 
 Stewart v. Stewart, 7 Johns. Ch. 229 ; 271. 
 
 V. Stewart, 31 N. J. Eq. 398 ; 360. 
 
 Stewart's Lessee v. Stewart. 3 J. J. Mar. 48 ; 
 
 330. 
 Stidham v. Mathews, 29 Ark. 650 ; 372, 375. 
 Stilley V. Folger, 14 Ohio 610 ; 352, 367. 
 Stillwell V. Doughty, 2 Bradf. 311- ; 210. 
 Stilphin V. Hondlette, 60 Me. 447 ; 388. 
 Stilson V. Stilson, 46 Conn. 15 ; 387, 408. 
 Stinebaugh v. Wisdom, 13 B. Mon. 467 ; 263. 
 Stiner v. Cawthom, 4 Dev. & Bat. 501 ; 39S. 
 Stinson ^.^Summer, 9 Mass. 143 ; 383. 
 St. John V. Turner, 1 Eq. Abr. 314, pi. 4 ; 81. 
 Stoddard v. Cutcompt, 41 Iowa 329 ; 379, 
 
 391. 
 V. Gibbs, 1 Sumn. 263 ; 263, 266. 
 
 Stoever v. Stoever, 9 S. & E. 445 ; 60. 
 
 Stokes v. McKibben, 13 Pa. St. 267 ; 270. 
 
 V. O'Fallon, 2 Mo. 29 ; 302, 349. 
 
 Stone V. Ellis, 9 Cush. 95 ; 143, 144. 
 
 V. McMullen, 10 W. N. C. 541 ; 97, 98. 
 
 V. Theed, 2 Br. C. C. 243 ; 215. 
 
 Stoney v. Bank of Charleston, 1 Eich. Eq. 
 275; 349. 
 
 Stookey v. Stookey, 89 111. 40 ; 400. 
 
 Stoppelbem v. Shulte, 1 1^11 (S. Car.) 200; 
 314. 
 
 Stow V. Steel, 45 111. 328 ; 312, 313, 323. 
 
 V. Tiffl, 15 Johns. 458 ; 325, 326. 
 
 Stratham v. Bell, Cooper 40 ; 160. 
 
 Strawn v. Strawn, 50 111. 276 ; 403, 406. 
 
 Street v. Saunders, 27 Ark. 554 ; 306. 
 
 Striblong v. Boss, 16 111. 122 ; 332. 
 
 Strong V. Bragg, 7 Blackf. 62 ; 391, 393. 
 
 V. Clem, 12 Ind. 37 ; 409, 410, 411. 
 
 V. Cummin, 2 Burr. 770 ; 36. 
 
 V. Dennis, 13 Ind. 514 ; 409. 
 
 Stuart V. Beard, 4 Md. Ch. 319 ; 336. 
 
 V. Carson, 1 Des. 606 ; 369. 
 
 Stukely v. Butler, Hob. 170 ; 117. g, 
 
 Stump V. Findlay, 2 Eawle 168 ; 105, 106. 
 
 Stuyvesant v. Mayor of N. Y., 11 Paige 414 ; 
 147. 
 
 Styer's App., 2 Grant 249 ; 204. 
 
 Sullivan v. Burnett, 4 Morr. Trans. 671; 
 509, 517. 
 
 Sully V. Nebergall, 30 Iowa 339 ; 389. 
 
556 
 
 Table of Cases Cited. 
 
 Summers v. Babb, 13 lU. 183; 382, 392, 393, 
 
 399. 
 
 V. Donnell, 7 Heisk. 565 ; 396. 
 
 Sumner v. plampson, 8 Ohio 328 ,• 309. 
 Sutliff V. Forgey, 1 Cow. 89, 5 Id. 713 ; 300, 
 
 302, 503. 
 Sutton V. .Asken, 66 N. & 172 ; 411. 
 
 V. Burrows, 2 Murph. 81 ; 395. 
 
 V. Jervis, 31 Ind. 268 ; 322. 
 
 V. Miles, 10 E. I. 348 ; 114. 
 
 Swaine v. Ferine, 6 Johns. Ch. 482; 216, 
 
 314, 324, 352. 
 Sweaney v. Mallory, 62 Mo. 485 ; 390. 
 Sweesey v. Shady, 22 Ohio St. 333 ; 390. 
 SwoU V. Oliver, 61 Ga. 248 ; 145. 
 Swope V. Swope, 5 Gill 225 ; 65. 
 Sydnor v. Sydnor, 2 Munf. 263 ; 98, 100. 
 Sykes v. Sykes, 49 Miss. 190 ; 309, 310, 320. 
 
 T. 
 
 Tabele v. Tabele, 1 Johns. Ch. 45 ; 342. 
 Talbot V. Janson, 3 Dall. 133 ; 495. 
 Talbott V. Armstrong, 14 Ind. 254 ; 323. 
 Taliaferro v. Burwell, 4 Call 321 ; 261. 
 Tallman v. Snoi^ 35 Me. 342 ; 127. 
 
 V. Snow, 58 Me. 73 ; 143. 
 
 Tanner v. Livingston, 12 Wend. 83 ; 68. 
 
 V. Van Bibber, 2 Duv. 550 ; 128, 146. 
 
 Tarpley v. Gannaway, 2 Cold. 246 ; 335. 
 Tate V. Jay, 31 Ark. 576 ; 322. 
 
 V. Stooltzfoos, 16 S. & R 35 ; 374. 
 
 V. Tally, 3 Call 354 ; 99, 111. 
 
 V. Tate, 1 Dev. & Bat. Eq." 22 ; 334. 
 
 Tator V. Tator, 4 Barb. 431 ; 181. 
 Tatum V. McLellan, 56 Miss. 352 ; 203. 
 Taylor v. Birmingham, 29 Pa. St. 306 ; 370. 
 
 V. Cleary, 29 Gratt. 448 ; 54. 
 
 V. Foster, 17 Ohio St. 166 ; 66. 
 
 —f V. Fowler, 18 Ohio 567 ; 313, 336. 
 
 V. Gould, 10 Barb. 400 ; 266. 
 
 V. Mason, 9 Wheat. 325 ; 126, 157. 
 
 V. Moore, 2 Band. 563 ; 381. 
 
 V. Sample, 51 Ind. 423 ; 411. 
 
 V. Smith, 54 Miss. 50 ; 263, 280. 
 
 V. Sutton, 15 Ga. 103 ; 136. 
 
 V. Taylor, 63 Pa. St. 481 ; 97^ 98. 
 
 Ten Eyck v. Waterberry, 7 Cow. 52 ; 443. 
 Terrett v. Taylor, 9 Cr. 43 ; 24, 460. 
 Terry v. Wiggins, 47 N. Y. 512 ; 64. 
 Te'vis V. Steele, 4 T. B. Mon. 339 ; 321, 325. 
 Tevis's Ex'r v. McCreary, 3 Mete. (Ky.) 151 ; 
 
 351, 352, 356, 369. 
 Thayer v. Bichards, 19 Pick. 398 ; 140. 
 
 V. Thayer, 14 Vt. 107 ; 334. 
 
 Thellusson v. Woodford, 4 Ves. 323; 261, 
 
 428, 429. 
 Theological Seminary v. Wall, 44 Pa. St. 
 
 353; 110. 
 Thomas v. Acklam, 2 Barn. & Cress. 779; 
 
 467. 
 
 V. Hanson, 44 Iowa 651 ; 327. 
 
 V. Harris, 43 Pa. St. 231 ,• 339. 
 
 V. Hesse, 34 Mo. 13 ;. 349, 397. 
 
 V. Eecord, 47 Me. 500 ; 141, 143, 150. 
 
 V. Thomas, 10 Ired. L. 123 ; 317. 
 
 V. Wood, 1 Md. Ch. 286 ; 369, 370. 
 
 Thompson v. Boyd, 1 Zab. 58 ^ 314, 344. 
 
 V. Cochran, 7 Humph. 72 ; 313. 
 
 V. Egbert, 2 Harr. (N. J.) 459 ; 362. 
 
 V. Hoop, 6 Ohio St. 480 ; 365. 
 
 Thompson v. Moebow, 5 S. & E. 289 ; 401. 
 
 V. Murray, 2 Hill Ch. 204 ; 320. 
 
 V. Swope, 24 Pa. St. 474 ; 69. 
 
 V. Thompson, 9 Iowa 323 ; 126. 
 
 V. Thompson, 1 Jones L. 430 ; 314. 
 
 Thompson's Lessee v. Green, 40 Ohio St. 216 ; 
 
 285. 
 Thorn v. Ingram, 25 Ark. 52 ; 347. 
 Thornton v: Trammell, 39 Ga. 202 ; 126. 
 Thornton's Ex'r v. Kupps, 37 Pa. St. 391; 
 
 262, 269. 
 Throp V. Johnson, 3 Ind. 343 ; 143. 
 Thurber v. Townsend, 22 N. Y. 517 ; 289. 
 Thurston v. Dickinson, 2 Bich. Eq. 317 ; 207. 
 Thynn v. Duvall, 2 Vern. 117 ; 215. 
 Tibbetts v. Langley Mfg. Co., 12 S. Car. 465; 
 
 335. 
 Tidball v. Lupton, 1 Band. 194 ; 102. 
 Tilbnry v. Barbut, 3 Atk. 617 ; 181. 
 Tilden v. Tilden, 13 Gray 103 ; 124, 128, 139. 
 Tillinghast v. Coggeshall, 7 E. I. 383 ; 274. 
 Tinkham v. Erie E. B., 53 Barb. 393 ; 127, 
 
 142. 
 
Table of Cases Cited. 
 
 557 
 
 Tippets ?). Walker, 4 Mass. 595 ; 304. 
 Tisdale v. Kisk, 7 Bush 139 ; 347. 
 Titus V. Neilson, 5 Johns. Ch. 452 ; 31,4. 
 Tobey v. Moore, 130 Mass. 448; 132, 134, 
 
 149. 
 Tobias v. Ketchum, 32 N. Y. 319 ; 359, 360, 
 
 361. 
 Tod V. Baylor, 4 Leigh 498 ; 400. 
 Todd V. Pratt, 1 H. & J. 465 ; 103. 
 Toledo, Peoria & Warsaw K. W. v. Curtenius, 
 
 65111.120; 391. 
 Tomlins v. McChord, 5 J. J. Mar. 135; 
 
 373. 
 Tompkins v. Fonda, 4 Paige 448 ; 392. 
 Tong V. Marvin, 15 Mich. 60 ; 287. 
 Tooke u. Hardeman, 7 Ga. 20; 360, 365, 
 
 389, 392. 
 Toomey v. McLean, 105 Mass. 122 ; 343. 
 Torrence v. Carbry, 27 Miss. 697 ; 316. 
 Torrey D. Minor, 1 S.&M. Ch. 489; 392. 
 Totten V. Stuyvesant, 3 Edw. 500 ; 345. 
 Tower v. Davys, 1 Vern. 479 ; 358. 
 Towle r. Smith, 2 Eobt. 489 ; 127. 
 Townsend v. Matthews, 10 Md. 251 ; 272. 
 
 V. Townsend, 2 Sand. 711; 379. 
 
 Tracy v. Murray, 44 Mich. 109 ; 369. 
 Tremnel v. Kleiboldt, 6 Mo. A pp. 549; 
 
 263, 271, 273. 
 Trezevant v. Osborn's Est., 3 Brev. 29 ; 503, 
 
 523. 
 Trimbles v. Harrison, 1 B. Mon. 140; 498, 
 
 503, 524. 
 Troup's Adm'r v. MuUender, 9 Johns. 303 ; 
 
 518. 
 Trowbridge v. Sypher, 55 Iowa 352 ; 344. 
 Troy V. Troy, Winst. Eq. 77 ; 199. 
 True V. Nicholls, 2 Duv. 547 ; 54, 100. 
 Trustees of University v, , 2 Hayw. 104 ; 
 
 499. 
 Tucker t^. Tucker, 29 Mo. 350, 32 Id. 464; 
 
 334. 
 Turbeville v. Gibson, 5 Heisk. 565 ; 331. 
 Turner v. Meyers, 1 Hag. Consis. 416; 
 
 260. 
 Tyson v. Harrington, 6 Ired. Eq. 329 ; 323. 
 Ty8.sen v. Clarke, 2 Wils. 541 ; 476. 
 Tyte V. Willis, Cas. Temp. Talb. 1 ; 181. 
 47* 
 
 u. 
 
 Ulp V. Campbell, 19 Pa. St. 361 ; 375. 
 Underbill v. Saratoga & Washington E. E., 
 
 20 Barb. 458 ; 124, 126, 142, 148. 
 Underwood v. Lilly, 10 S. & E. 101 ; 374. 
 Unger v. Leiter, 32 Ohio St. 210 ; 348. 
 University of Alabama «. Winston, 5 Stew. 
 
 & Port. 17; 254. 
 Upshaw V. Upshaw, 2 H. & Mun. 381 ; 365. 
 Urich V. Merkel, 81 Pa. St. 332 ; 73. 
 Usher v. Eichardson, 29 Me. 415; 372. 
 
 Van Alstyne v. Spraker, 13 Wend. 578 
 
 199. 
 Van Arsdale v. Van Arsdale, 2 Dutch. 404 
 
 361, 362. 
 Vanarsdall v. Fauntleroy, 73 B. Mon. 401 
 
 265. 
 Vanatta v. Brewer, 32 N. J. Eq. 268 ; 187 
 Vance v. Vance, 21 Me. 364 ; 351. 
 Vanderheyden v. Crandall, 2 Denio 9 ; 112 
 Van Derzee v. Derzee, 30 Barb. 331, 36 N, 
 
 Y. 231 ; 62, 63, 65. 
 Van Dom v. Van Dorn, Penning. 698 
 
 400. 
 Van Duyne v. Thayre, 14 Wend. 233 ; 314 
 Van Duzer v. Van Duzer, 6 Paige 366 
 
 278. 
 Vauler v. Vanler, 3 Tenn. Ch. 23 ; 317. 
 Van Orden v. Van Orden, 10 Johns. 30 
 
 365. 
 Van Eensselaer v. Ball, 19 N. Y. 100 ; 127, 
 
 141. 
 
 V. Dennison, 35 N. Y. 393 ; 1 27. 
 
 V. Kearney, 11 How. 297 ; 112. 
 
 V. Poucher, 5 Denio 35 ; 112. 
 
 V. Rlingerland, 26 N. Y. 580 ; 127. 
 
 Van Vrouker v. Eastman, 7 Mete. 162; 
 
 339. 
 Varney v. Stevens, 22 Me. 331 ; 209. 
 Vaughan v. Dickes, 20 Pa. St. 509 ; 98, 99. 
 
 V. Smith, 2 Dana 40 ; 503. 
 
 V. Vaughan, 30 Ala. 329 ; 366. 
 
 Vaughn V. Lovejoy, 34 Ala. 437 ; 129. 
 
558 
 
 Table of Cases Cited. 
 
 Vaux V. Nesbit, 1 McGord Ch. 352; 499, 
 
 513. 
 Vemon v. Vemon, 53 N. Y. 351 ; 360. 
 Vincent v. Spooner, 2 Cush. 467 ; 351, 353, 
 
 354. 
 Voelckner i;. Hudson, 1 Sand. S. Ct. 215;, 
 
 404. 
 Voller V. Carter, 4 El. & Bl. 173 ; 102. 
 Voris V. Eenshaw, 49 111. 425 ; 137, 143. 
 
 Wacker v. Wacker, 26 Mo. 426 ; 517. 
 Wade V. Malloy, 16 Hun 226 ; 209. 
 
 V. Miller, 32 N. J. 296 ; 335. 
 
 Wadsworth i;."Wadsworth, 12 N. Y. 376 ; 499. 
 Wait i. Wait, 4 Comst. 95 ; 386, 387. 
 Wakeman v. Eoache, Dudley 123 ; 336. 
 Wale V. Hill, 7 Dana 172 ; 399. 
 Walker v. Potomac Ferry Co., 3 McA. 440 ; 
 
 503. 
 
 V. Schuyler, 10 Wend. 480 ; 399. 
 
 V. Vincent, 19 Pa. St. 369 ; 131, 137. 
 
 V. Walker, 5 Bradw. 289 ; 396. 
 
 V. Walker, 6 Cold. 571 ; 395. 
 
 V. Walker, 28 Pa. St. 40 ; 63. 
 
 Walker's Adm'r v. Deaver, 5 Mo. App. 139 ; 
 
 408. 
 Wall V. Maguire, 24 Pa. St. 249 ; 98. 
 
 V. Williams, 11 Ala. 826 ; 251, 252. 
 
 V. Williamson, 8 Ala. 48 ; 251, 252. 
 
 Wallace v. Hall, 19 Ala. 367 ; 393, 405. 
 Waller v. Waller, 33 Gratt. 83 ; 332. 
 Walsh V. Kelly, 34 Pa. St. 84 ; 380. 
 
 I;. Eeis, 50 111. 447 ; 396. 
 
 V. Wilson, 130 Mass. 124 ; 337. 
 
 V. Wilson, 131 Mass. 535 ; 400. 
 
 Walters v. Jordan, 13 Ired. L. 361 ; 384. 
 Walton V. Hargraves, 42 Miss. 18 ; 347. 
 Walton's Est., 1 Tuck. 10 ; 363. 
 Waples V. Harman, 1 Harring. 223 ; 98. 
 Ward V. Crotty, 4 Meto. (Ky.) 59 ; 381. 
 
 V. Thompson, 6 G. & J.- 349 ; 272. 
 
 Wardrup v. Jones, 23 Tex. 489 ; 522. 
 Ware v. Hylton, 3 DaU. 199, 225 ; 466. 
 
 ■ V. Owens, 42 Ala. 212 ; 310, 408. 
 
 V. Washington, 6 Sm. & M. 737 ; 307. 
 
 Ware's Ex'r v. Murph, Eice 54 ; 199. 
 Warfield v. Castleman, 5 T. B. Mon. 617; 
 
 378. 
 Warford v. Noble, 9 Biss. 320 ; 337. 
 Waring v. Jackson, 1 Pet. 571 ; 478. 
 
 V. Middleton, 3 Des. Eq. 249 ; 60, 62. 
 
 Warner v. Bennett, 31 Conn. 468 ; 123, 141, 
 
 142, 149. 
 
 V. Van Alstyne, 3 Paige 513 ; 347. 
 
 Warren v. Twilley, 10 Md. 39 ; 345. 
 Warren County v. Patterson, 56 lU. Ill ; 125. 
 Wass V. Buckman, 38 Me. 356 ; 264, 265. 
 Waterbury v. Waterbury, 6 Heisk. 512 ; 367. 
 Waterman v. Green, 12 E. I. 483 ; 60. 
 Waters v. Margerum, 60 Pa. St. 39 ; 103. 
 Watkins v. Sears, 3 Gill 492 ; 99. 
 
 V. Thornton, 11 Ohio St. 367 ; 265, 266. 
 
 Watrous ii. Winn, 37 Iowa 72 ; 361. 
 Watson V. Clendenin, 6 Blackf. 477 ; 
 
 373. 
 
 V. Mercer, 8 Pet. 109 ; 374. 
 
 V. Powell, 3 Call 306 ; 63. 
 
 D.Watson, 13 Conn. 83; 285. 
 
 Watson's Lessee v. Bailey, 1 Binn. 470 ; 
 Watters v. Bredin, 70 Pa. St. 235 ; 124. 
 Watts V. Ball, 1 P. Wms. 108 ; 226. 
 
 V. Cole, 2 Leigh 653 ; 103, 109. 
 
 Waugh V. Eiley, 8 Mete. 290 ; 499, 502. 
 Waugh's Sir's v. Waugh, 84 Pa. St. 350; 
 
 56. 
 Weaver v. Crenshaw, 6 Ala. 873 ; 392. 
 
 V. Gregg, 6 Ohio St. 547 ; 300. 
 
 V. Sturtevant, 12 E. I. 537 ; 391. 
 
 Webb V. Boyle, 63 N. C. 271 ; 393. 
 
 V. Evans, 1 Binn. 565 ; 361. 
 
 V. Townsend, 1 Pick. 21 ; 304. 
 
 Webster v. Cooper, 14 How. 488 ; 127. 
 Wedge V. Moore, 6 Cush. 8 ; 343. 
 Weed V. Weed, 27 Minn. 330 ; 386. 
 Weir V. Humphries, 4 Ired. Eq. 264; 266, 
 
 268, 306, 322. 
 Welch V. Allen, 21 Wend. 147 ; 55. 
 
 V. Anderson, 28 Mo. 293 ; 367. 
 
 ». Buckius, 9 Ohio St. 331 ; 327. 
 
 Welch's Heirs v. Chandler, 13 B. Mon. 467 ; 
 
 263. 
 Weld V. Williams, 13 Mete. (Mass.) 486; 98. 
 
 340, 
 
 373. 
 
Table of Cases Cited. 
 
 559 
 
 Weller v. WeUer, 28 Barb. 589 ; 350. 
 Welles V. Cowles, 2 Conn. 567 ; 304. 
 
 D. Orcott, Kirby 118 ; 94. 
 
 Wellock V. Hammond, Cro. Eliz. 204 ; 188. 
 Wells V. BeaU, 2 G. & J. 458 ; 61, 389. 
 
 V. Moore, 16 Mo. 479 ; 311. 
 
 V. Newbold, 1 Taylor 166 ; 107. 
 
 Wells v. Thompson, 13 Ala. 793; 2fe, 
 
 264, 280, 281, 284. 
 Welsh V. Foster, 12 Mass. 97 ; 180. 
 Wendell v. Crandall, 1 N. Y. 491 ; 112. 
 Wentworth iJ.Wentworth, 69 Me. 247 ; 352, 
 
 353. 
 Westbrook ji.Vanderburg, 36 Mich. 30 ; 369. 
 Westcott V. Campbell, 11 K. I. 378 ; 401. 
 Westfall V. Hintze, 7. Abb. (N. C.) 236 ; 
 
 335. 
 
 V. Lee, 7 Iowa 12 ; 371. 
 
 Westmoreland Coal Co.'s App., 85 Pa. St. 
 
 344; 206. 
 Wharton v. Moragal, 62 Ala. 201 ; 68. 
 Wheatland v. Dodge, 10 Mete. 502 ; 97. 
 Wheatley's Heirs v. Calhoun, 12 Leigh 264; 
 
 328. 
 Wheaton v. Andress, 23 Wend. 452; 64, 
 
 197. 
 Wheeler v. Dascomb, 3 Cush. 285 ; 126. 
 
 V. Gorham, 2 Boot 328 ; 204. 
 
 V. Hotchkiss, 10 Conn. 225 ; 281. 
 
 V. Kirtland, 24 N. J. Eq. 552 ; 196. 
 
 «. Kirtland, 27 N. J. Eq. 534; 300, 
 
 333. 
 
 V. Moody, 9 Tex. 372 ; 148. 
 
 V. Morris, 2 Bosw. 524 ; 340, 342. 
 
 • V. Walker, 2 Conn. 196 ; 118, 123, 1 88. 
 
 Wheelwright v. Wheelwright, 2 Mass. 447 ; 
 
 109. 
 Whichcote v. Lyle, 28 Pa. St. 73 ; 276. 
 Whilden v. Whilden, Eiley Ch. 205 ; 359. 
 Whitaker v. Greer, 129 Mass. 417 ; 406. 
 White V. Amdt, 1 Whart. 91 ; 208. 
 
 V. Clarke, 7 T. B. Mon. 640 ; 404. 
 
 V. Cutler, 17 Pick. 248 ; 211, 304. 
 
 V. Drew, 42 Mo. 561 ; 320. 
 
 V. Story, 2 Hill 543 ; 395. 
 
 V. Williamson, 2 Grant 249 ; 196. 
 
 t;. Willis, 7 Pick. 143 ; 305. 
 
 White V. White, 1 Ilarr. (N. J.) 202 ; 362, 
 
 378, 382. 
 
 V. White, 2 Mete. (Ky.) 185 ; 459, 503. 
 
 V. White, Kev. St. (Stanton 1860) p. 65 ; 
 
 517. 
 
 !>. White, 4Ves. 24; 215. 
 
 Whitehead v. Mallory, 4 Cush. 138 ; 324. 
 V. Middleton, 2 How. (Miss.) 692; 
 
 329, 352. 
 Whiting V. Stevens, 4 Conn. 44 ; 503. 
 
 V. Whiting, 4 Conn. 179 ; 334. 
 
 V. Wilkins, 1 Bulstr. 219 ; 78, 82. 
 
 Whitsell V. Mills, 6 Ind. 229 ; 386. 
 Whittaker v. Whittaker, 99 Mass. 366 ; 109. 
 Whitton V. Whitton, 38 N. H. 127 ; 145. 
 Whyte V. Nashville, 2 Swan 364 ; 210, 391, 
 
 406. 
 Wickes V. Clarke, 8 Paige 161 ; 278. 
 Wigfall V. Bryden, 2 Burr. 1895 ; 37, 39, 41, 
 
 42. 
 Wightj). Thayer, 1 Gray 284; 101. 
 Wigley V. Beauchamt, 51 Mo. 545 ; 369. 
 Wilber v. Wilber, 52 Wise. 298 ; 379. 
 Wilcox V. Heywood, 12 K. I. 196 ; 114. 
 
 V. Kandall, 7 Barb. 633 ; 346. 
 
 Wilder v. Whittemore, 15 Mass. 262 ; 140. 
 Wilkes V. Lion, 2 Cow. 355 ; 438. 
 Wilkinson v. Leland, 2 Pet. 627, 657; 460. 
 
 V. Parish, 3 Paige 653 ; 345. 
 
 Willard«. Henry, 2N. H. 120; 143,144. 
 Willet V. Beatty, 12 B. Mon. 172 ; 348. 
 
 V. Brown, 65 Mo. 138 ; 310. 
 
 Willey V. Haley, 60 Me. 176 ; 110. 
 William and Mary College v. Powell, 12 
 
 Gratt. 372 ; 381. 
 Williams v. Angell, 7 R. I. 145 ; 143. 
 
 V. Baker, 71 Pa. St. 476 ; 266, 279. 
 
 V. Cox, 3 Edw. 178 ; 320. 
 
 V. Dawson, 3 Sneed 316 ; 334. 
 
 V. Fry, 1 Ventr. 199, Eaymond 236 ; 
 
 158. 
 
 V. Hichbom, 9 Ma^s. 189; 110. 
 
 V. Leech, 28 Pa. St. 89 ; 73. 
 
 V. Eobson, 6 Ohio St. 510 ; 375. 
 
 V. Woods, 1 Humph. 408; 347. 
 
 Williams' Case, 3 Bland 221 ; 215. 
 WilUamson v. Daniel, 12 Wheat. 568 ; 98. 
 
560 
 
 Table of Cases Cited. 
 
 Williamson v. Parisian, 1 Johns. Ch. 389 ; 
 
 302. 
 
 V. Wilkins, 14 Ga. 416 ; 204. 
 
 V. Williamson, 6 Paige 305 ; 369. 
 
 Williard v. Williard, 56 Pa. St. 119 ; 211. 
 Willion V. Berkley, Plowd. 247 ; 93. 
 WiUis' Lessee v. Bucher, 3 Wash. C. C. 369 ; 
 
 66, 99. 
 Willmarth v. Bridges, 113 Mass. 407 ; 197, 
 
 317. 
 Wilson V. Cox, 49 Miss. 538 ; 359. 
 
 V. Davison, 2 Eobt. (Va.) 384; 339, 346. 
 
 V. Edmonds, 24 N. H. 517 ; 207. 
 
 V. Ewing, 13 Eep. (Ky.) 272; 347. 
 
 V. Gait, 18 111. 431 ; 127. 
 
 V. Guthrie, 2 Grant 111 ; 148. 
 
 • V. McKeehan, 53 Pa. St. 79 ; 202, 203. 
 
 V. Oatman, 2 Blackf. 323 ; 400. 
 
 V. Wilson, 38 Me. 18 ; 128, 140. 
 
 V. Wilson, 4 T. B. Mon. 159 ; 61, 66. 
 
 Winder v. Little, 1 Yeates 152 ; 295. 
 Winn V. Cole, Walk. (Miss.) 119 ; 141. 
 
 V. Elliott, Hard. 402 ; 312. 
 
 Wiscot'sCase, 2Co. 61a; 103. 
 Wiseley v. Findlay, 3 Band. 361 ; 361. 
 Wiseman v. Wiseman, 73 Ind. 112 ; 385. 
 Witham v. Perkins, 2 Greenl. (Me.) 400; 
 
 279, 285. 
 Wood V. Bayard, 63 Pa. St. 320; 105, 106, 
 
 IIL 
 
 V. Griffin, 46 N. H. 231 ; .200. 
 
 V. Keyes, 6 Paige 478 ; 397. 
 
 V. Lee, 5 T. B. Mon. 50 ; 359, 397, 402. 
 
 V. Wood, 5 Paige 596 ; 360. 
 
 WoodhuU V. Keid, 1 Harr. 128 ; 344. 
 Woodruff «. Water-Power Co., 2 Stockt. (10 
 
 N. J. Eq.) 489 ; 148. 
 Woods V. Morgan, 56 Ala. 397 ; 400. 
 
 ti. Wallace, 30 N.H. 384; 344. 
 
 Woodward v. Dowse, 10 C. B. (N. S.) 722 ; 
 
 385. 
 
 Woodward v. Glassbrook, 2 Vern. 388 ; 39, 
 
 45. 
 
 V. Wilson, 68 Pa. St. 208 ; 279. 
 
 Woodworth v. Paige, 5 Ohio St. 70 ; 382. 
 
 V. Payne, 74 N. Y. 196 ; 128, 1 39. 
 
 Woolbridge «. Wilkins, 3 How. (Miss.) 360; 
 
 310, 325, 399. 
 "VfooUey v. Magie, 26 111. 526 ; 311. 
 Wooster v. Hunts & Lyman Iron Co., 38 
 
 Conn. 256; 392. 
 Worcester v. Clark, 2 Grant 84 ; 338. 
 Worman v. Teagarden, 2 Ohio St. 380; 124. 
 Worsham v. Callison, 49 Mo. 206 ; 312. 
 Worthen v. Peai-son, 33 Ga. 385 ; 361. 
 Worthington v. Middleton, 6 Dana 300; 
 
 378. 
 Wright V. Cahoon, 12 Leigh 370 ; 99. 
 
 11. Penn, 10 Wheat. 204 ; 57, 60, 61. 
 
 V. Herron, 5 Eich. Eq. 441 ; 94. 
 
 V. Saddler, 20 N. Y. 320 ; 519. 
 
 V. Scott, 4 Wash. C. C. 16 ; 101. 
 
 j;. Stanard, 2 Brock. 211 ; 380. 
 
 V. Wright, 2 Lea 78 ; 368. 
 
 Wusthoff V. Dracourt, 3 Watts 240 ; 201. 
 Wyatt V. Sadler, 1 Munf. 537 ; 63. 
 Wyman v. Richardson, 62 Me. 293; 382, 
 
 392, 406. 
 Wynn v. Story, 38 Pa. St. 166 ; 98. 
 
 Y. 
 
 Yancy r. Smith, 2 Mete. (Ky.) 408 ; 351. 
 Yandell v. Pugh, 53 Miss. 296 ; 349. 
 Yates D. Jarvis, 10 Tex. 168 ; 522. 
 Yeakei''s Heirs v. Yeaker, 4 Mete. (Ky.) 33; 
 
 503, 524. 
 Yeo V. Mercereau, 3 Harr. (N. J.) 387 ; 312, 
 
 313, 499. 
 Young V. Mclntyre, 6 W. N. C. 252 ; 266. 
 
 V. Tarbell, 37 Me. 505 ; 329, 394. 
 
 V. Walcott, 1 Iowa 174 ; 408. 
 
INDEX. 
 
 ACCRETIONS, 
 dower in, 306. 
 
 ACKNOWLEDGMENT, 
 
 of deed by wife to bar ber dower, 372. 
 See DowEE. 
 
 AD QUOD DAMNUM, 
 
 writ of, 107. 
 
 ADULTERY, 
 
 curtesy not lost by adultery of busband, 281. 
 effect of, upon dower, 384. 
 
 ALABAMA, 
 
 no restriction upon the tenure of land by an alien, 515. 
 
 curtesy initiate abolished, 286. 
 
 birth of issue not a prerequisite to estate by curtesy, 261. 
 
 curtesy barred by a decree depriving husband of the management of 
 
 his wife's estate for certain reasons, 286. 
 statutory regulation of curtesy, 286. 
 dower not given to widow where she has a separate estate of a value 
 
 greater than dower and distributive share of the husband's 
 
 estate, 299. 
 dower given in equitable estate by statute, 312. 
 statutory provisions for sale of decedent's land free of dower, 349. 
 Act 27 Hen. 8, c. 10, § 6 (Jointure), not in force, 350. 
 widow must elect between provision by will in lieu of dower, and dower 
 
 within one year from probate of will, 366. 
 
 statutory bar of dower by joinder of wife in husband's deed, 371, 372. 
 
 wife may bar dower by her separate deed to alienee of her husband, 375. 
 
 infant feme covert may bar dower, 376. 
 
 divorce a viiiculo for adultery of wife a bar to dower, 387. 
 
 special statute of limitation as to dower, 389. 
 
 mansion to be included in dower if it can be done without injustice, 398. 
 
 quarantine extended until dower is assigned, 403. 
 
 2L 561 
 
562 Index. 
 
 ALABAMA, — ( Continued.') 
 
 by statute, a deed without the word heirs may pass a fee, 56. 
 words of limitation in a will declared unnecessary to give a fee, 72. 
 estate tail converted into fee-simple in hands of donee or devisee in 
 tail. 111. 
 ALIEN, 
 
 definition of, 493. 
 
 American rule as to citizenship, 494. 
 
 right of expatriation, 494. 
 
 expatriation, how accomplished, 495. 
 
 effect of annexation of territory, 496. 
 
 rule as to British subjects born prior to July 4, 1776 . . . 496. 
 
 right of election, 498. 
 
 how manifested, 498. 
 no distinction as to rights in realty between alien friend and enemy, 499. 
 alien may take by purchase, but cannot hold as against the State, 499. 
 a devise a purchase within the rule, 499. 
 
 to divest alien's estate, office found, or its equivalent, necessary, 500. 
 an act of confiscation naming the alien, equivalent to an office found, 600. 
 
 so the issue of an escheat patent for the land, 600. 
 alienage cannot be set up in a collateral proceeding, 500. 
 
 but may be interposed by the State against a claim by an alien 
 to recover land, 501. 
 alien after office found, not accountable for profits and rents received 
 
 prior to forfeiture, 600. 
 forfeiture not enforceable by a Territory, 500. 
 alien, before office found, may convey, 501. 
 may defend his title, 502. 
 
 in Massachusetts may acquire title, as against the State, by long, 
 undisturbed possession, 502. 
 alien cannot plead his alienage in bar of a decree for specific perform- 
 ance, 503. 
 alien cannot acquire title by mere operation of law, 503. 
 may join with wife in conveyance of her land, 503. 
 alien cannot take by descent, 503. 
 
 where estate would pass to alien but for his alienage, it will go to the 
 next of kin of the decedent who has inheritable blood, and does 
 not claim through the alien, 503. 
 in Kentucky the title under such circumstances vests in the State, 
 503. 
 deed of alien claiming by descent passes no title, 503. 
 
Index. 563 
 
 ALIEN, — ( Continued.) 
 
 question of ability to take to be determined by status of claimant at 
 
 time descent is cast, 504. 
 title cannot be derived through alien ancestor, 507. 
 statute of 11 and 12 Wm. III., to enable natural-born subjects to 
 inherit, although their parents were aliens, 507. 
 in force in Pennsylvania, 507. 
 
 Maryland, 507. 
 statute does not enable citizen, who has an alien ancestor through 
 
 whom he must derive title, living, to inherit, 508. 
 to same effect, statute of New York of 1830, 508. 
 life of alien ancestor no bar in North Carolina, 508. 
 Virginia, 508. 
 Texas, 508. 
 Missouri, 508. 
 alienage of father no bar to inheritance between brothers, 509. 
 exceptions to rule that alien cannot inherit or transmit inheritance 
 where land has been taken by virtue of legislative provisions, 
 509. 
 where the State has conveyed to an alien with warranty, 509. 
 where alien holds by patent from the United States, in certain 
 States his resident heirs may take, 509. 
 a private act of Legislature enabling an alien to hold and alienate as a 
 citizen will not remove bar of alienage as against his alien heir, 
 509. 
 on death of alien, his land escheats without office found, 509. 
 aliter in North Carolina, where there is a native-born child of the 
 
 alien, 510. 
 disability of alienage not avoided by a trust, 510. 
 such trust is enforceable for the benefit of the State, 510. 
 must be enforced in lifetime of alien, 511. 
 and before enforcement there must be an office found, 512. 
 in case of escheat, for want of competent heirs, of land granted by 
 the United States to an alien, the land is taken by the State, 
 not by the United States, 512. 
 alien cannot be tenant by curtesy, 275. 
 or tenant in dower, 302. 
 wife of alien is not dowable, 302. 
 naturalization, 513. 
 
 'has no retroactive effect, 513. 
 
 will confirm a previously-acquired title, 513. 
 
564 Index. 
 
 AIAEN,— (Continued.) 
 
 will not deprive heir of rights given him as an alien by the 
 Legislature, 513. 
 right to naturalize rests with Federal authority, 513. 
 State may, however, regulate tenure of realty by alien without making 
 
 him a citizen, 513. 
 no property right acquired by declaration of intention to become a 
 
 citizen, 515. 
 statutes enabling alien to take, hold, or inherit land, 515. 
 such statutes to be construed strictly as in derogation of the common 
 
 law, 515. 
 statutes, 
 
 Alabama, 515. 
 
 Arkansas, 515. 
 
 California, 515. 
 
 Colorado, 515. 
 
 Connecticut, 516. 
 
 Delaware, '516. 
 
 Florida, 516. 
 
 Georgia, 516. 
 
 lUiuois, 516. 
 
 Indiana, 516. 
 
 Iowa, 516. 
 
 Kansas, 517. 
 
 Kentucky, 517. 
 
 Maiae, 517. 
 
 Maryland, 517. 
 
 Massachusetts, 517. 
 
 Michigan, 517. 
 
 Minnesota, 517. 
 
 Mississippi, 517. 
 
 Missouri, 517. 
 
 Nebraska, 517. 
 
 New Hampshire, 518. 
 
 New Jersey, 518. 
 
 New York, 518. 
 
 North Carolina, 521. 
 
 Ohio, 521. 
 
 Oregon, 521. 
 
 Pennsylvania, 521. 
 
 Khode Island, 521. 
 
Index. 565 
 
 ALIEN, — ( Continued.) 
 
 Tennessee, 521. 
 
 Texas, 522. 
 
 "Vermont, 522. 
 
 Virginia, 522. 
 
 West Virginia, 522. 
 
 WisconsLQ, 522. 
 rights in realty secured to aliens by treaties between their respective 
 countries and the United States, 522. 
 
 treaty of 1778 with France, 523. 
 
 treaties of 1783 and 1794 with Great Britain, 523. 
 rights under existing treaties, 
 
 Argentine Confederation, 524. 
 
 Austria, 525. 
 
 Bavaria, 525. 
 
 Bolivia, 525. 
 
 Brazil, 525. 
 
 Brunswick and Luneburg, 525. 
 
 Central America, 525. 
 
 Ecuador, 525. 
 
 France, 525. 
 
 Guatemala, 525. 
 
 Hanover, 525. 
 
 Hanseatic Republic, 525. 
 
 Hawaiian Islands, 525. 
 
 Hesse-Cassel, 525. 
 
 Italy, 525. 
 
 Mecklenburg-Schwerin, 525. 
 
 Nassau, 525. 
 
 New Granada, 524. 
 
 Nicaragua, 525. 
 
 Oldenburg, 525. 
 
 Orange Free State, 525. 
 
 Portugal, 525. 
 
 Prussia, 525. 
 
 Eussia, 525. . 
 
 San Salvador, 524. 
 
 Saxony, 525. 
 
 Spain, 525. 
 
 Swiss Confederation, 525. 
 
 Wurtemberg, 525. 
 
566 Index. 
 
 ANTE-NUPTIAL AGREEMENT, 
 bar to dower, 351. 
 See DowEE. 
 
 ARKANSAS, 
 
 statutes regulating tenure of lands by aliens, 515. 
 
 right of dower conferred upon aliens, 303. 
 
 dower given by statute in equity of redemption, 315. 
 
 dower postponed to purchase-money mortgage, 327. 
 
 fraudulent or collusive eviction of husband's estate no bar to dower, 332. 
 
 conveyance by husband, without wife's assent in due form, no bar to 
 dower, 333. 
 
 exchange, dower rights in case of, statute as to, 346. 
 
 statutory regulation of jointure and settlement, 356. 
 
 presumption, by statute, that provision by husband's will is in lieu of 
 dower, 362. 
 
 election by widow between provision and dower, to be made within 
 eighteen months from death of husband, 366. 
 
 divorce a vinculo for fault of wife, a bar to dower, 386. 
 
 statute of limitations applies in cases of dower, 389. 
 
 duty of assigning dower imposed by statute upon heir, 394 
 
 statute with reference to assignment of dower where it cannot be by 
 metes and bounds, 396. 
 
 mansion house to be included within dower land, if it can be done with- 
 out injustice, 398. 
 
 quarantine extended to two months, and until dower is assigned, 403. 
 
 by statute, a deed without the word " heirs " may pass a fee, 456. 
 
 estate tail converted into life estate is first taken with remainder in 
 fee to heir at common law, 113. 
 
 ASSIGNMENT, 
 
 for benefit of creditors, eflTect of, on dower, 337. 
 of dower, 393. 
 
 BANKRUPTCY, 
 
 sale under proceedings in, against husband, will not bar wife's dower, 
 338. 
 
 BEQUEST, 
 
 in lieu of dower — incidents of, 369. 
 
 CALIFORNIA, 
 
 statutes regulating tenure of land by aliens, 515, 
 
Index. 567 
 
 CALIFORNIA,— ( Continued.) 
 curtesy abolished, 286. 
 dower abolished, 299. 
 statutory estate in lieu of dower, 300. 
 
 by statute, a deed without the word " heirs " may pass a fee, 56. 
 estate tail converted into fee-simple, 112. 
 a devise over, even after a fee, declared valid, 112. 
 
 CHARGE, 
 
 where lands come to husband subject to charge, the dower must con- 
 tribute, 344. 
 of legacies on devised lands no bar to dower therein, 348. 
 
 COLORADO, 
 
 alien has same rights as to realty as a citizen, 515. 
 curtesy abolished by implication, 286. 
 
 by statute, a deed without the word " heirs " may pass a fee, 56. 
 estate tail converted into an estate for life with remainder in fee to 
 heir at common law, 113. 
 
 COMMON RECOVERY, 
 method of suffering, 105. 
 existence in United States, 105. 
 prohibited in Virginia, 105. 
 recognized in Pennsylvania, 105. 
 unknown in Ohio, 105. 
 tenant in tail may bar entail by, 108. 
 
 effect of, 106. 
 
 tenant to, 106. 
 defeat of curtesy by, 280. 
 
 suffered by husband alone does not defeat dower, 345. 
 bar of dower by when suffered jointly by husband and wife, 370. 
 
 CONDITIONS, 
 
 definition, 123. 
 kinds of conditions, 
 in law, 123. 
 in deed, 123. 
 creation of condition in deed, 
 by the technical words, 
 siib conditione, 123. 
 proviso, 123. 
 ita qiMd, 123. 
 
568 Index. 
 
 CONDITIONS ,— ( Continued.) 
 
 quod si eontingat, if following clause of re-entry, 123. 
 technical words not necessary, 123. 
 
 may be by any words showing intent to create condition, 124. 
 provision for re-entry characteristic of a condition, 124. 
 
 even where appended to words of covenant, 124. 
 technical words may be used without making a condition, if controlled 
 
 by context of the instrument in which they occur, 124. 
 condition may be created by reference to a condition in another paper, 
 124. 
 by reference in deed to an agreement, 124. 
 by reference in codicil to provisions of a will, 124. 
 by a recital of a condition, signed by grantee, on back of a deed, 
 124. 
 mere recital of a moving consideration not sufficient to create a con- 
 dition, 125. 
 even where an estate on condition is transferred in consideration 
 that the condition be performed by the second grantee, 125. 
 condition not raised by implication from a declaration that deed is 
 made for a special purpose, 125. 
 or from condition of affairs existing at the time of the grant, 125. 
 not readily raised or enlarged by construction, 125. 
 conditions not favored in law, 125. 
 
 if words can be construed as a condition, reservation, or covenant, the 
 courts lean to either of the two latter, rather than the former, 
 125. 
 condition cannot be engrafted by parol on a conveyance, 126. 
 conditiong, whether precedent or subsequent, 
 not determined by use of any particular word, 126. 
 when mutual covenants go the whole of the considerations on both 
 
 sides, condition precedent, 126. 
 when act of condition necessarily precedes in time the vesting of an 
 
 estate, condition precedent, 126. 
 gift to a person if he reach a certain age, 126. 
 
 condition subsequent where act can be performed as well after as 
 before the vesting of the estate, unless intention of grantor or 
 devisor is manifest that it shall be a condition precedent, 126. 
 condition to marry a certain person, subsequent, 126. 
 to change name, 126. 
 to take certain name, 127. 
 to pay an annuity, 127. 
 
Index. 569 
 
 CONDITIONS ,— ( Continued:) 
 
 that no claim be made against the estate of the devisors, 127. 
 avoiding a conveyance in case it afterwards appear that the 
 
 grantee was not seized of certain lands, 127. 
 that the grantor's wife be allowed the use of certain land, 127. 
 condition precedent — iii a power to a life tenant to sell land, if neces- 
 sary, for her support — the occurrence of the necessity, 127. 
 the erection of a dam where a deed recites that if the dam is 
 erected by a certain date, the erector shall receive a deed for 
 certain land, 127. 
 the attainment of a certain age where a devise is to a person if or 
 when he attains said age, 127. 
 of what condition may consist : 
 
 of almost anything not illegal or unreasonable, 127. 
 payment of rent, 127. 
 
 delivery of portion of produce of land, 127. 
 that a way be kept open as a public street, 127. 
 to pay expenses of a lawsuit, 128. 
 to indemnify against a bond and mortgage, 128. 
 to support grantor or other person during life, 128. 
 that no sale shall be made of the granted property until the grantor 
 and his heirs have had an opportunity to purchase the same, 
 128. 
 that certain buildings shall be erected upon the granted premises, 128. 
 that a devisee shall not contest the will containing the devise, 128. 
 that a house shall be kept in repair, 128. 
 that a church shall remain a free church, 128. 
 that no building be erected within a certain distance of the street 
 
 line, 128. 
 that the grantee shall return to a certain place, 128. 
 that land or its produce be applied to the support of certain clergy- 
 men, 128. 
 certain conditions void, as contrary to public policy, or as repugnant 
 to the estate granted, 128. 
 condition in general restraint of marriage void, 128. 
 but not a condition in restraint of marriage before a certain age, 
 
 provided the age fixed be a reasonable one, 128, 
 conditions in restraint of marriage followed by a devise over on 
 
 breach, 129. 
 distinction between a restraint placed by a testator upon the re- 
 marriage of his widoWj and a restraint by another person, 129. 
 48* 
 
570 Index. 
 
 CONDITIONS— ( ConimwecZ.) 
 
 condition in restraint of marriage of widow good without a 
 devise over, 130. 
 
 matter regulated by statute in Georgia, 130. 
 
 conditions in general restraint of alienation void, 130, 131. 
 
 partial restraint for a not unreasonably long time upheld, 131. 
 
 fifteen years upheld as a reasonable time, 131. 
 
 twenty-five years held to violate rule against perpetuities, 131. 
 
 condition against alienation until the youngest of three children at- 
 tained twenty-five,' held good, 131. 
 
 rule of perpetuities held not applicable to conditions, 132. 
 
 right to restrain alienation at all denied, 132. 
 
 condition that alienation shall be to a particular person, good, 132. 
 
 that partition should not be made, held good, 133. 
 
 condition that on any subsequent alienation of the land granted, a 
 sum should be paid to the original grantor, held void, 133. 
 
 rule against restraint of alienation not applicable to grants by 
 the government, 133. 
 
 condition in patent that land should not be sold without consent 
 of the President, held good, 133. 
 conditions limiting the use or manner of use of land may be sus- 
 tained when they do not amount to a deprivation of the profits 
 of the land granted, 134. 
 held good : 
 
 that premises be not used for a tavern, 134. 
 
 that liquor be not manufactured or disposed of on the premises, 134, 
 
 that land be used for a school-house only, 134. 
 
 that, no building above a certain height be erected on the' 
 premises, 134. 
 
 that the premises be not used for an offensive business, 134. 
 
 that no building be erected which would interrupt the view from 
 certain other premises, 134. 
 a mere capricious restraint on use will not be sustained, 135. 
 prohibition of the erection of a mill, the prohibition not appearing to 
 be for the benefit of the grantor or of any piece of property, 
 void, 135. 
 a condition that devisees continue to inhabit a small town held void, 
 
 135. 
 where land could have been taken by the exercise of the right of emi- 
 nent domain, and h^ not been so taken, but has been taken by 
 virtue of a deed, the condition of said deed cannot be avoided 
 
Index. 571 
 
 CONDITIONS— ( Continued.) 
 
 because the grantee could have obtained the land without 
 it, 135. 
 
 in Michigan and Wisconsin, nominal conditions may be disregarded, 
 136. 
 effect of non-performance of condition, 
 
 non-performance of condition precedent prevents vesting of estate, 
 136. 
 even if performance is prevented by the act of God, 136. 
 
 non-performance of condition subsequent renders estate liable to for- 
 feiture, 136. 
 unless condition is one not enforceable at law, 136. 
 performance — breach, 
 
 condition subsequent when relied on to work a forfeiture strictly con- 
 strued, 137. 
 performance sufficient if substantial, 138. 
 
 no breach of a condition to indemnify against debts, where a judgment 
 is entered on a mortgage before action is brought on the accom- 
 panying bond, 137. 
 
 condition to keep up a fence — heirs not mentioned — no breach, if fence 
 was kept up during grantee's life, 137. 
 
 condition not to assign prior to a certain date not violated by a lease for 
 ninety-nine years, 137. 
 
 condition for a certain use no breach if land is used for another pur- 
 pose, if original use is kept up, 137. 
 
 condition that a certain religious society should appropriate house to 
 certain worship fulfilled by permitting another society to carry 
 on same species of worship on the premises, 137. 
 
 condition against building fence not violated by building a brick wall, 
 137. 
 
 condition against conveyance by grantee without certain consent not 
 violated by conveyance by grantee's heirs, 138. 
 
 condition against use except for certain purpose not violated by a 
 temporary use for another and not improper one, 138. 
 
 condition that a building be located permanently on land before certain 
 date folfiUed by such location, although the building was after- 
 wards removed, 138. 
 
 condition not to erect a public house not violated by opening an oyster- 
 stand, 138. 
 
 condition not to erect any depot except on premises granted not 
 violated by delivering freight at doors of merchants, 138. 
 
572 Index. 
 
 CONDITIONS,— ( Continued.) 
 
 condition that land be used for tanyard fulfilled by use for twenty-four 
 
 years, 139. 
 condition to convey a portion of land fiilfilled by setting apart the land 
 
 without formal conveyance, 139. 
 condition in a will that third person shall return to a certain place, 
 
 folfiUed by a return in lifetime of testator, 139. 
 condition that seats in a church should be free not violated by a sale 
 
 of the land for debts of church, 139. 
 condition against sale of liquor not violated by a sale by the grantee's 
 
 tenant without authorization or negligence on part of the 
 
 grantee, 139. 
 condition that land be applied to support of such ministers as might 
 
 preach in a church thereon violated by resolution to build a 
 
 church elsewhere, and reserve the granted lot for a future 
 
 erection, 139. 
 condition to repair violated by not rebuilding a burned-down house, 139. 
 condition to build church and lay out graveyard violated by erection 
 
 of church elsewhere, 140. 
 condition not to claim debt as against an estate broken by mere claim 
 
 without recovery, 140. 
 performance — ^by whom to be made, 
 
 in general must be by grantee or heirs, or by one interested in having 
 
 condition performed, 140. 
 conditions of a personal character must be performed by grantee him- 
 self, 140. 
 support generally considered such a condition, 140. 
 but if the person to be supported is other than grantor, held 
 
 otherwise, 140. 
 performance not excused by the coverture or minority of the grantee, 
 
 140. 
 performance — time of, 
 
 where no time is limited, according to some authorities, the grantee 
 
 has his lifetime in which to perform, 140. 
 according to others, performance must be within a reasonable 
 
 time, 140. 
 forfeiture, 
 
 until forfeiture, estate on condition does not differ from an absolute 
 
 estate, 136. 
 forfeiture may be taken advantage of by grantor and heirs, 141. 
 even if heir be not named in instrument, 141. 
 
Index. 573 
 
 CONDITIONS ,— ( Continued.) 
 
 stranger cannot take advantage of breach, 141. 
 
 owner of condition need not have beneficial interest in any other- 
 estate which may be affected thereby, 142. 
 right to take advantage of condition cannot be conveyed so as to give 
 the assignee a right to enforce it, but the conveyance will divest 
 the grantor's right, 142. 
 rule not altered by fact that the assignee is also heir of grantor, 142. 
 devisee of condition cannot take advantage of it, 143. 
 
 except where condition is rendered devisable by statute, 143. 
 to enforce forfeiture, the breach of condition must be taken advantage 
 of by a positive act, 143. 
 usually by entry, 143. 
 or claim, 143. 
 action of disseizin not a sufficient substitute for entry or claim, 143. 
 Maine statute does not dispense with entry, 143. 
 action held sufficient substitute, 143. 
 not necessary in New York, 144. 
 in Pennsylvania, 144. 
 in Massachusetts, 144. 
 when grantor is already in possession, entry not required, 144. 
 
 but he must give notice that he holds for the forfeiture, 144. 
 held that possession after a breach will be presumptively therefor, 144. 
 entry must be shown to be for the jjurpose of enforcing forfeiture, 144. 
 entry on one of a number of uncultivated lots conveyed by a deed, 
 
 subject to same condition, good as to all, 144. 
 turning cattle on wild land not sufficient entry, 144. 
 where grantor and grantee have agreed as to what shall constitute re- 
 entry, compliance with agreement sufficient, 145. 
 where condition is prompt performance of an act, no request to per- 
 form necessary before entry, 145. 
 where condition is payment of rent charge, demand necessary, 145. 
 demand not necessary in New York, 145. 
 where condition ia against neglect, demand must be made, 145. 
 manner of enforcement of forfeiture by State, 145. 
 excuse or waiver of condition, 
 
 where condition itself is waived, there can be no forfeiture for breach, 
 
 whether precedent or subsequent, 146. 
 otherwise where a breach merely is excused, 146. 
 condition before breach may be excused by person towards whom it is 
 to be performed, 146. 
 
574 .Index. 
 
 CONDITIONS — ( Continued.) 
 
 refusal to receive performance is a -waiver, 146. 
 
 waiver may be by acts, 146. 
 
 but before breach, not by parol or passive acquiescence, 146. 
 
 silence and allowing expenditures to be made on faith of presumed 
 
 assent may have effect as a waiver, 146. 
 mere indulgence not a waiver, 146. 
 
 rendering the performance impossible, equivalent to waiver, 147. 
 condition released in part, destroyed in toto, 147. 
 
 but a covenant coupled with the condition is not thereby de- 
 stroyed, 147. 
 after breach, waiver implied if grantor acts as though the condition 
 
 were in force, 147. 
 but not if the acts can be referred to any other motive, 147. 
 waiver after breach may be confined to the particular breach, 147. 
 receipt of rent after breach no waiver unless rent has accrued after 
 
 breach, 148. 
 condition becoming impossible subsequent to its creation, performance 
 
 is excused, 148. 
 where, by a change of law, the reason for a condition annexed to an 
 
 estate by the government ceases, the condition falls, 148. 
 breach of condition must be taken advantage of promptly, 148. 
 by enforcing forfeiture, right of action on accompanying covenant is 
 
 waived, 148. 
 as a rule, equity will not compel the fulfilment of a condition, 148. 
 
 this rule does not apply in cases of restriction, 149. 
 equity will not aid in enforcing a forfeiture, 149. 
 
 but will relieve against one, 149. 
 relief given where condition is payment of money at a time named, 150. 
 
 where condition was support, 150. 
 after re-entry, grantor seized as of original estate, 150. 
 lieu or right obtained against an estate on condition destroyed by 
 
 entry, 150. 
 
 CONDITIONAL FEE, 
 
 See Fee Conditional, 
 
 CONDITIONAL LIMITATION, 
 
 definition, 186. 
 
 distinction between it and condition, 186, 188. 
 creation of, words ordinarily indicative of conditional limitation : 
 "so long as," 187. 
 
Index. 575 
 
 CONDITIONAL LIMITATION,— ( Conimited) . 
 
 "whUe,"187. 
 
 "during," 187. 
 
 " until," 187. 
 
 intent of above words not inflexible, 187. 
 
 " provided," interpreted as making a limitation, 187, 188. 
 
 a devise to one in case he recover, interpreted as making a conditional 
 limitation, 187. 
 
 " upon condition," in connection with rest of deed, held a conditional 
 limitation, 187. 
 
 "paying," 188. 
 
 mere presence of provision for a reversion upon a breach will not 
 cause a conditional limitation to be construed a condition, 188. 
 
 an estate upon a conditional limitation does not require any act upon 
 the part of the grantor to divest it, 188. 
 
 a stranger may take advantage of the contingency, 188. 
 
 conditional limitation subject to rule against perpetuities, 189. 
 
 if estate limited over may or may not take efiect withiu the time pre- 
 scribed by the rule, it is void, 189. 
 
 where limitation over is void, first estate becomes absolute, 189. 
 
 conditional limitation not void as ia restraint of marriage, 189. 
 
 entry of grantee made at his peril, 190. 
 
 CONNECTICUT, 
 
 statutory regulation of tenure of realty by alien, 516. 
 
 statutory regulation of curtesy, 290. 
 
 dower confined to realty of which husband dies seized or possessed, 
 
 299. 
 dower given only to woman living with her husband at time of his 
 
 death, or absent by his consent or default, 303. 
 tenant in tail may bar dower by a conveyance in fee, 834. 
 statutory provisions for sale of decedent's land free of dower, 349. 
 statutory regulation of jointure and settlement, 356, 358. 
 divorce does not bar dower where wife is the innocent party, and no 
 
 part of ^usband's estate is assigned for her support, 387. 
 widow has right of entry before assignment of dower, 392. 
 estate tail converted into fee in heirs of first taker. 111. 
 
 CONSTITUTIONAL LAW, 
 
 right of Legislature to change course of descent, 114. 
 constitutionality of acts curing defective acknowledgments, 374. 
 State may modify or abolish dower while inchoate, 300. 
 
576 Index. 
 
 CONSTITUTIONAL -LAW — ( Continued.) 
 
 State may regulate tenure and descent of realty by aliens, 513. 
 right to naturalize rests with United States, 613. 
 right of United States to provide by treaties that certain property 
 rights shall be conferred on alien, 522. 
 
 CKEDITOES, 
 
 deed in fraud of — effect on dower, 324. 
 rights of, postponed to dower, 832, 349. 
 
 except in certain States, 335. 
 assignment for benefit of, no bar to dower, 337. 
 wife's representatives may claim as against the estate by curtesy, 280. 
 
 COVENANTS, 
 
 words therein will not constitute a fee, 54. 
 where a less estate is granted in the granting part of a deed, < 
 for quiet enjoyment will not enlarge an estate granted for life to a fee, 
 57. 
 
 CURTESY, 
 
 definition of, 258. 
 origin of, 258. 
 
 essentials of, recognized in United States, 259. 
 curtesy initiate, 
 
 begins on birth of issue capable of inheriting estate from mother, 259. 
 not a vested right until issue born, 259. 
 abolished in 
 
 Alabama, 286. 
 
 Indiana, 287. 
 
 Kentucky, 287. 
 
 New Jersey, 288. 
 
 New York, 289. 
 
 "Wisconsin, 289. 
 
 West Virginia, 289. 
 curtesy consummate, 
 
 arises on death of wife, 260. 
 essentials of curtesy, 
 
 legal marriage necessary, 260. 
 
 must be between persons capable of contracting, 260. 
 birth of issue necessary, 260. 
 issue not necessary, 
 
 in Alabama, 261. 
 
Index. 577 
 
 CUKTESY ,— ( Continued.) 
 
 in Michigan, 261, 287. 
 in Minnesota, 261. 
 in Nebraska, 261. 
 in Ohio, 261, 288. 
 in Oregon, 261. 
 in Pennsylvania, 261. 
 issue must be born alive, 260. 
 not necessary that it be heard cry, 260. 
 birth of child after death of mother, 261. 
 curtesy not divested by death of child before the mother, 261. 
 illegitimate issue legitimized by the subsequent marriage of their 
 parents, such issue as ■will sustaiu curtesy, 261. 
 seizin of wife necessary, 263. 
 
 at common law must have been in deed, 263. 
 
 so held in Massachusetts and Rhode Island, 263. 
 
 relaxed in case of wild or waste lands, 264. 
 
 held not to apply where wife's title was, by deed, taking effect under 
 
 statute of uses, 264. 
 actual seiziu not necessary where prevented from being acquired by 
 
 bodUy fear, 264. 
 seizin in deed held not necessary where the wife has the right of im- 
 mediate possession, and there is no adverse possession, 264. 
 actual seizin unnecessary where a descent is cast upon the wife during 
 
 coverture, 265. 
 recovery in ejectment held sufficient seizin, 265. 
 receipt of a surrender by tenant in remainder of the particular 
 
 estate, 265. 
 execution by husband and wife of wife's unimproved land, and entry 
 
 by grantee thereunder held sufficient seizin, 265. 
 possession by wife's tenant for years or at sufferance, a sufficient 
 
 seizin, 265. 
 possession by seizin of guardian of a minor feme covert, sufficient 
 
 seizin, 265. 
 seizin by tenant in common of wife, sufficient, 265. 
 receipt of rent and profits is equivalent to actual seizin, 265. 
 
 but in Kentucky the sole control of all the income of an estate is 
 not such a seizin, 265. 
 equitable seizin sufficient to uphold curtesy in an equitable estate, 266. 
 seizin to sustain curtesy must be beneficial, 267. 
 requisites to sustain curtesy need not coincide in time, 261. 
 49 2M 
 
578 Index. 
 
 CUETESY,— ( Continued.) 
 
 issue bom after conveyance will sustain curtesy in the conveyed 
 lands, 261. 
 in what estates curtesy is given : 
 
 as a rule, in all estates of inheritance, 262. 
 in Vermont, in estates in fee-simple only, 262. 
 in conditional and qualified estates, 262. 
 ._.„ j^ equitable estates by inheritance, 262. 
 
 in Maryland, subject to liens on the wife's estate, 263. 
 
 in some States, to the wife's debts, 280. 
 
 curtesy is not given in a mere equitable right, 263. 
 
 or in a presumptive right, 263. 
 no curtesy in a remainder or reversion after a freehold, 266, 267. 
 
 unless the particular estate is determined during the coverture, 
 266. 
 an outstanding dower will defeat curtesy, 266. 
 
 estate tail, converted by statute into a life estate in first taker, with 
 remainder in fee to heirs, husband of first taker cannot have 
 curtesy, 266. 
 outstanding term for years will not prevent curtesy from vestingj 267. 
 'curtesy confined to lands of which wife dies intestate, 
 in Alabama, 286. 
 in Indiana, 287. 
 in Wisconsin, 289. 
 how curtesy barred or prevented, 
 
 curtesy in a legal estate cannot be barred by the mere will of the 
 
 grantor or devisor of the estate in which it is claimed, 268, 269. 
 
 is not barred by the creation of a sole and separate estate for the 
 
 wife, 269. 
 
 although the husband is cut off from any participation in the 
 
 rents or profits during coverture, 269. 
 
 in Illinois, no curtesy in the separate estate of the wife where she has 
 
 a power of disposal, 269. 
 curtesy cannot be barred by an ante-nuptial deed in fraud of the hus- 
 band, 284. 
 curtesy in an equitable estate may be barred by the instrument crea- 
 ting it, 269. 
 the intent to bar must appear, 273. 
 a mere declaration that the trust is for the sole and separate use of • 
 
 the wife will not bar the curtesy, 271, 273. 
 difference of authorities as to whether the fact that the trust proceeds 
 
Index. 579 
 
 CURTESY,— ( Continued.) 
 
 from the husband affects the question of a presumed intent to 
 bar the curtesy, 271, 272. 
 marriage settlements, or ante-nuptial agreements as barring curtesy, 
 
 272, 273, 274. 
 curtesy given in a trust for the wife, with power of appointment in 
 her, where the power is not exercised by wife in her lifetime, 
 274. 
 intent to exclude curtesy in a trust, sufficiently shown by a provision 
 that nothing in the deed shall be taken to vest any title or 
 claim whatsoever in the husband, 274. 
 merely giving power of sale to wife will not bar the curtesy, 275. 
 right to curtesy not destroyed by a provision in a devise in tail that 
 on the death of the tenant without issue, the executors shall 
 sell the land and apply under the will, 275. ■ 
 alien cannot be tenant by curtesy, 275. 
 but is enabled by naturalization, 275. 
 but not by mere declaration of intention, 275. 
 Act giving aliens a right to purchase land, subject to limitation 
 as to quantity, does not confer right to take by the curtesy, 
 275, 276. 
 removal of all restrictions upon acquiring and holding land by 
 alien, will have the effect of enabling him to take by the cur-' 
 tesy, 276. 
 doubtful as to whether partial removal of restrictions will enable 
 alien to be tenant by curtesy, 277. 
 incidents : 
 tenant by curtesy entitled to emblements, 277. 
 is liable for waste, 277. 
 
 even where he has assigned his estate, 277. 
 is not entitled to allowance for improvements made by him, 277. 
 may lease or assign his estate, 277. 
 
 but not in fraud of his creditors, 277. 
 may not make a voluntary settlement of his estate by curtesy 
 upon his wife, 278. 
 estate by curtesy is bound by a judgment against the husband, 278.' 
 may be taken in execution. 278. 
 the levy may be upon the land direct, 278. 
 tendency of modern legislation to exempt the estate from levy or sale 
 
 while it is initiate, 278, 279. 
 effect of act exempting wife's lands during her life from levy for debts 
 
580 Ikdex. 
 
 CURTES Y — ( Continued:) 
 
 of husband held to prevent a conveyance by the husband of his 
 curtesy during the coverture, 279. 
 estate by curtesy an insurable intent, 279. 
 existence of estate by curtesy suspends descent of land, 279. 
 
 and during its continuance, Statute of Limitations does not run 
 against the wife's heirs, 279. 
 or the wife herself, 279. 
 estate by curtesy allowed to be joined to a disability and prevent 
 
 running of statute, 279. 
 curtesy in some States subjected to wife's debts, 280. 
 wife can claim as creditor against the curtesy, 280. 
 
 not a necessary party in suits relative to the curtesy, 280. 
 tenant by curtesy cannot recover for damages done to the reversion, 
 
 280. 
 where land is sold by judicial proceedings, free of curtesy, the interest 
 of the proceeds will be substituted for the estate, 280. 
 defeat of curtesy after vesting, 
 by recovery, 280. 
 by fine, 280. 
 
 forfeited by a tortious conveyance of husband of estate greater than 
 his own, 280. 
 but not by a l^ase in fee, 280. 
 
 or by a deed operating under the Statute of Uses, 280. 
 feoffment by husband during wife's life held not to work a forfeiture, 
 281. 
 but in Maine held that a deed in fee works forfeiture, 281. 
 adultery of husband does not forfeit his curtesy, 281. 
 
 otherwise in Indiana, 281. 
 desertion by husband works forfeiture in West Virginia, 281. 
 
 Pennsylvania, 281. 
 in Alabama, curtesy barred by a decree depriving husband of control 
 of wife's estate on account of his imbecility, intemperance, or 
 other thing rendering him unfit for such management, 286. 
 bigamy a cause of forfeiture in Maryland, 281. 
 divorce a vinculo defeats dower, 281. 
 
 but such defeasance will not affect the interests of innocent third 
 parties unless the marriage is destroyed ab initio, 282. 
 in Nebraska, when divorce is for adultery of wife, curtesy is preserved, 
 
 282. 
 divorce a mensa et thoro will not bar dower, 282. 
 
Index. 581 
 
 CUETES Y — ( Continued.) 
 
 nor a decree prohibiting the hi^sband from intermeddling with 
 wife's property, 285. 
 curtesy is barred by the divestiture of a wife's estate on breach of 
 condition, 282. 
 but not where the estate expires upon a conditional limitation, 282. 
 curtesy may be barred by joinder of husband in deed or will of his 
 wife, 283. 
 but the joinder must be in form prescribed by law, 283. 
 barred by conveyance, made by virtue of power of attorney, by hus- 
 band and wjfe to transfer all their interest, although the power 
 is defective as to wife, 283. 
 barred by agreement of the husband that land should be conveyed in 
 trust for wife and children by a former husband, although the 
 title is made to the husband directly, 283. 
 effect of post-nuptial agreement, 284. 
 cannot be barred after the birth of issue by any act of the wife, 284. 
 or by her attainder, 284. 
 
 but attainder of wife, before birth of issue, will defeat cur- 
 tesy, 284. 
 
 and a pardon will only enable the husband to claim cur- 
 tesy in after-acquired lands, 284. 
 tenant by curtesy might formerly forfeit his estate by a felony, 284. 
 where forfeited for treason, the estate passes to the wife and her heirs, 
 
 discharged of curtesy, 284. 
 curtesy not barred by will of wife, 285. 
 
 even in States where curtesy is confined to land of which wife dies 
 seized, 285. 
 curtesy cannot be transferred by a disclaimer, 285. 
 is barrable by Statute of Limitations, 285. 
 by statutory judicial proceedings, 285. 
 not lost by abandoning possession to a tenant in common, 285. 
 estate by curtesy abolished in 
 Iowa, 286. 
 Illinois, 286. 
 Minnesota, 286. 
 California, 286. 
 Mississippi, 286. 
 Kansas, 286. 
 and by implication in 
 Georgia, 286. 
 49* 
 
582 ' Index. 
 
 CURTESY,— ( Continued.) 
 
 Florida, ^86. 
 
 Colorado, 286. 
 
 Michigan, 287. 
 statutory regulation of, in 
 
 Alabama; 286. 
 
 Indiana, 287. 
 
 Kentucky, 287. 
 
 Massachusetts, 287. 
 
 Michigan, 287. 
 
 Nebraska, 287. 
 
 Ohio, 288. 
 
 New Jersey, 288. 
 
 Minnesota, 288. 
 
 New York, 288. 
 
 Vermont, 289. 
 
 Wisconsin, 289. 
 
 West Virginia, 289. 
 
 Maine, 289. 
 
 Connecticut, 290. 
 
 New Hampshire, 290. 
 
 North Carolina, 290. 
 
 Ehode Island, 290. 
 expressly saved in married woman's acts,, 
 
 Massachusetts, 287. 
 
 Oregon, 287. 
 
 Pennsylvania, 287. 
 
 Ehode Island, 287. 
 
 Tennessee, 287. 
 
 DEBTS, 
 
 estate tail not subject to tenant's debts for longer pieriod than his 
 life, 103. 
 statute as to, 103. 
 recovery for debts of creator as a method of barring an entail, 106. 
 condition not to claim a debt violated by a claim without recovery, 140. 
 life estate liable for debts of life tenant, 204. 
 estate by curtesy liable for, 278. 
 
 in some States estate by curtesy subject to wife's debts, 280. 
 estate by this curtesy subject to debts of husband to wife,;280. 
 effect of sale for decedent's debts upon dower, 390. 
 
Index. 583 
 
 DEED, 
 
 requisites of, to pass estate in fee-simple, 53 et seq. 
 
 to pass estate tail, 95 et seq. 
 
 to give life estate, 195. 
 construction of — whether creating a condition or a conditional limita- 
 tion, 124. 
 of husband without wife, no bar to dower, 333. 
 of husband and wife to bar dower, 370. 
 of husband and wife to bar curtesy, 283. 
 in fraud of creditors, effect upon dower of setting aside, 382. 
 
 DELAWARE, 
 
 statutory regulation of tenure of realty by alien, 516. 
 statutory regulation of jointure and settlement, 356. 
 statutory provisions as to deed to bar dower, 372. 
 statute as to bar of dower by adultery and elopement, 384. 
 damages for detention of dower given by statute, 406. 
 dowress liable to damages for waste, 407. 
 
 devise to be held to pass entire devisable estate of testator in the sub- 
 ject thereof unless contrary intent appear, 71. 
 bar of entail, 110. 
 
 DEMAND, 
 
 for assignment of dower, 395. 
 
 of dower, necessary to support action for detention, 406. 
 
 DESCENT, 
 
 of estates tail, 104. 
 
 alien cannot take land by, 503. 
 
 suspended during existence of estate by the curtesy, 279. 
 
 DESERTION, 
 
 effect of, on estate by the curtesy, 281. 
 
 under what circumstances a woman deserted by her husband may bar 
 her dower, 377. 
 
 DEVISE, I 
 
 requisites of, to create a fee-simple, 57 et seq. 
 
 to create a fee-tail, 96 et seq. 
 
 effect of preamble of will in connection with, 62. 
 effect of devise over in determining estate given by a will, 65, 197. 
 
 of life estate, 196. 
 a purchase within the rule that an alien may take by purchase, 499. 
 
584 Index. 
 
 DE VISE,— ( Continued.) 
 
 cannot bar curtesy in a legal estate, 268. 
 in lieu of dower, 359. 
 
 DISCONTINUANCE, 
 
 not caused by deed of bargain and sale or dovenant of tenant in tail, 
 107. 
 
 DIVOECE, 
 
 effect of, on curtesy, 281. 
 effect of, upon dower, 386. 
 
 DOWEK, 
 
 origin of, 296. 
 
 ad ostium ecelesim, 296. 
 
 ex assensu patris, 297. 
 
 disclaimer of, 297. 
 
 abolition of, 297. 
 
 de la plus belle, 297. 
 
 dower at common law, 297. 
 
 definition of, 297. 
 
 recognition of, in United States, 298. 
 
 variation of, by Alabama code, 299. 
 
 in Vermont, 299. 
 Tennessee, 299. 
 Connecticut, 299. 
 Georgia, 299. 
 abolished in 
 
 Mississippi, 299. 
 
 Indiana, 299. 
 
 Kansas, 299. 
 
 California, 299. 
 
 Minnesota, 299 . 
 substitutionary provisions in Indiana, 800. 
 
 California, 300. 
 object of dower, 300. % 
 
 essential prerequisites of, 300. 
 dower inchoate, 300. 
 
 not a constitutional right, but at the mercy of the Legislature, 
 300. 
 
 protected against acts of husband, 300. 
 
 held an incumbrance, 301. 
 
Index. 585 
 
 DOWER,— ( Continued.) 
 who entitled to dower, 
 widow only, 301. 
 
 woman living with man as wife, though formally married, not entitled 
 to dower if any lawful impediment existed to marriage, 301. 
 although the woman acted in ignorance of the existence of the 
 , impediment, 302. 
 
 but in such case marriage inferred from cohabitation after re- 
 moval of impediment, 302. 
 no dower in one who has gone through the form of marriage with a 
 
 lunatic, 302. 
 wife of alien not dowable at common law, 302. 
 
 aliter where alien is allowed by the law of the State to purchase land, 
 302. 
 and wife of alien may recover dower against one holding title 
 
 derived from husband, even where not so allowed, 302. 
 rule in Missouri, 302. 
 alien wife of a citizen not dowable, 302. 
 even if subsequently naturalized, 302. 
 to obtain dower in New York, alien widow must file deposition 
 
 under the Act of 1825 . . . 303. 
 New York Act of April 30, 1845 . . . 303. 
 Act of Congress of February 10, 1855 . . . 303. 
 Connecticut rule, 303. 
 Michigan rule as to non-residents, 303. 
 Wisconsin rule as to same, 303. 
 
 in general, residence in another State of the Union does not inter- 
 fere with dower, 303. 
 presumption of alienage rebuttable, 303. 
 statutes conferring on aliens the right to hold realty cover the claim 
 
 of dower, 303. 
 aliens expressly allowed dower by statute in 
 Arkansas, 303. 
 Illinois, 303. 
 Iowa, 303. 
 Michigan, 304. 
 Nebraska, 304. 
 New Jersey, 304. 
 Oregon, 304. 
 Wisconsin, 304. 
 exception as against purchaser in Iowa, 303. 
 
586 Iis-DBX. 
 
 DOWEK— ( Continued.') 
 in what dower is given, 
 realty only, 304. 
 
 in New England, dower not given in wild lands, 304. 
 aliter in the United States generally, 304. 
 
 under New England rule, no presumption that land is wild, 305. 
 widow dowable of wild land, if used in connection with improved land, 
 
 305. 
 of mines and quarries worked in lifetime of the husband, 305. 
 
 or by the heir or owner before assignment of dower, 306. 
 
 temporary opening sufficient, 306. 
 in unopened mines, as mines, no dower, 306. 
 growing crops, 306. 
 accretions, 306. 
 
 no dower in a mere privilege, 306. 
 estate to which dower attaches, 
 fi-eehold of inheritance, 306. 
 estate tail, 306. 
 
 in Kentucky, limited to fee-simple, 306. 
 no dower in estate pur autre vie, 306. 
 
 or term of years, although of great length, 306. 
 
 or renewable forever, 307. 
 in Massachusetts, dower in certain estates for years, 307. 
 
 also in Missouri, 307. 
 estates held subject to condition for repurchase, 307. 
 fee-simple determinable by executory devise on death of husband 
 
 without issue living at time of his death, 307. 
 estate determinable upon the performance of a condition precedent 
 
 vesting the land in another, 308. 
 estate in common, 309. 
 no dower in estate in joint tenancy, 309. 
 aliter, -where jus accreseendi is abolished, 309. 
 
 and by statute in Mississippi, 809. 
 
 and West Virginia, 309. 
 no dower in partnership lands as against the firm or its creditors, 309. 
 
 but where character of personalty has not been impressed, or land 
 held by a firm, dower after payment of partnership debts, 309. 
 
 law not altered by the title being held by one or several members 
 of the firm and not in the firm name, 309. 
 
 dower given in profits of a planting partnership, 310. 
 in warrant lands, 311. 
 
Index. 587 
 
 DO WEE,— ( Continued.) 
 
 in lands held by improvement rights, 311. 
 
 in lands held by certificate from United States, the price having been 
 
 paid, 311. 
 in military warrant lands, 311. 
 in donation lands, 311. 
 
 land claims under Act of Congress of March 3, 1803 . . . 311. 
 no dower in mere pre-emption right under Act of Congress, 311. 
 
 or in right to receive patent, 311. 
 seizin to sustain dower must formerly have been legal, 311. 
 rule still prevails in Maine and New Hampshire, 312. 
 in case of merger of legal and equitable estates, dower may be had, 312. 
 general rule in the United States gives dower in equitable as well as 
 in a legal estate, 312. 
 so ordained by statute in 
 Alabama, 312. 
 Illinois, 312. 
 Maryland, 312. 
 to subject an equitable estate to dower, it must be perfect, 312. 
 no dower in land held by mere verbal contract unenforceable under 
 the statute of frauds, 312. 
 or held by contract of purchase without legal title or price having 
 
 been paid, 312. 
 even if tender of price has been made, 313. 
 if contract is left in such condition at time of husband's death that it 
 may be enforced by his heirs on paying the purchase-money, 
 the widow may have dower on doing equity, 313. 
 to sustain dower in an equity, it must exist at time of husband's 
 death, 313. 
 limitation of rule, 313. 
 dower given in equity of redemption as against all but mortgagee or 
 
 his representatives, 314. 
 dower given by statute in 
 Arkansas, 315. 
 Illinois, 315. 
 Maine, 315. 
 Massachusetts, 315. 
 Michigan, 315. 
 Nebraska; 315. 
 New York, 315. 
 Oregon, 315. 
 
588 Index. 
 
 DOWER,— ( Continued.) 
 Tennessee, 315. 
 Vermont, 315. 
 "Wisconsin, 315. 
 held to be enforceable in equity only, 314. 
 to give dower in equity, the equitable estate must have been vested in 
 
 husband and inheritable, 315. 
 no dower in mere equity, 315. 
 
 or in a power to sell, though coupled with an interest, 315. 
 seizin necessary, < 
 
 American rule as to seizin more libej-al than that of the old common 
 
 law, 315. 
 only necessary to raise presumption of seizin, 316. 
 mere possession sufficient to raise such presumption, 316. 
 seizin in law sufficient to support dower, 316. 
 unregistered deed held not to support dower as against an innocent 
 
 purchaser, 317. 
 grantee of husband cannot deny seizin, but may deny the dowable 
 
 character thereof, 317. 
 seizin must be of freehold in possession, 317. 
 no dower in a remainder after a freehold, 317, 319. 
 dos de dote peti nan debet, 317. 
 
 applicable only where the prior dower has been assigned, 319. 
 law in Ohio as to dower in a remainder, 320. 
 outstanding lease for years will not defeat dower, 320. 
 
 and during its continuance widow may have her share of the rent 
 reserved, 320. 
 seizin must be beneficial, 320, 321. 
 no dower to widow of trustee, 320. 
 
 although at time of marriage she was ignorant of the trust, 320. 
 bare legal title where husband is bound to convey, will not sustain 
 
 dower, 320, 321. 
 no dower in lands afiected with resulting trust, 320. 
 
 aliter in Michigan, 320. 
 dower in trust conjoined with an interest, 321. 
 mere seizin as executor, although executor is also devisee, will not 
 
 sustain dower, 321. 
 no dower to widow of an heir in lands which remain in the hands of 
 an executor or administrator, as assets for payment of a dece- 
 dent's debts, 321. 
 title as mortgagee not a dowable seizin, 322. 
 
Index. 589 
 
 DOWER ,— ( Continued.) 
 
 aliter after forfeiture, 322. 
 
 but not where the title by forfeiture has not been completed, 322. 
 dower where title of husband is incomplete, 322. 
 failure to record deed will not deprive widow of dower, 323. 
 where dower is given in land held on a contract, time being given for 
 
 payment, 323. 
 no dower where creditor after levy, but before title is absolute, makes 
 
 a deed of quit-claim, 323. 
 no dower where husband has sold land before coverture, but vendee's 
 title is not completed until after the marriage, 823. 
 aliter where there has been a mere oral sale without part perform- 
 ance of the contract, 324. 
 effect of levy before marriage, 324. 
 
 conveyance in fraud of creditors before marriage, effect on dower, 324. 
 effect of mortgage made before marriage on dower, 324. 
 duration of seizin necessary to support dower, 325. 
 doctrine of instantaneous seizin, 325. 
 purchase-money mortgage superior in right to dower, 326. 
 statutory provision to that effect in 
 Georgia, 327. 
 Arkansas, 327. 
 Illinois, 327. 
 Michigan, 327. 
 Nebraska, 327. 
 New York, 327. 
 North Carolina, 327. 
 Oregon, 327. 
 West Virginia, 327. 
 Wisconsin, 327. 
 Virginia, 327. 
 essentials of purchase-money mortgage to give it priority to dower, 
 
 327. 
 mortgage made to third person, 328. 
 
 later mortgage cannot be substituted for purchase-money mortgage, 328. 
 scope of purchase-money mortgage cannot be extended so as to cover 
 
 subsequent debts, 329. 
 rule of precedence applies only in favor of mortgagee and those hav- 
 ing his title, 329. 
 widow dowable of surplus of property on which is mortgage superior 
 in right to dower, 329. 
 50 
 
590 Index. 
 
 DOWER — ( Continued.) 
 
 statutes to that effect, 
 Illinois, 329. 
 Michigan, 329. 
 Nebraska, 329. 
 New York, 329. 
 Oregon, 329. 
 West Virginia, 329. 
 Wisconsin, 329. 
 Virginia, 329. 
 the same rule as to surplus of proceeds of equitable title after 
 satisfaction of vendor's lien, 329. 
 dower entitled to be exonerated by personal estate of husband, 329. 
 deed made on day of marriage, and prior thereto, will not defeat 
 
 dower, 329. 
 deed made in fraud of intended wife, no bar to dower, 330. 
 
 such deed to be voidable must be made with reference to a par- 
 ticular marriage, 330. 
 but there need be no formal engagement at the time of making 
 
 the deed, 330. 
 it is not a fraud on intended wife to provide properly for children 
 of former marriage, 331. 
 such deed void only as against wife, 331. 
 
 dying in possession is equivalent to dying seized for purposes of 
 dower, 331. 
 although land be subject to a judgment obtained against the hus- 
 band before marriage, 331. 
 or the husband had given bond for the title, the purchase-money 
 
 not being paid, 331. 
 or the husband be insolvent, 331. 
 
 or if the estate be an equity of redemption which has not been 
 foreclosed, although forfeited, 331. 
 but where a sheriff's sale has taken place, the fact that no deed has 
 been made, will not raise a dowable seizin, 331. 
 dower — how barred, 
 
 barred by anything which defeats husband's seizin ab initio, 332. 
 by the enforcement of a judgment or incuVnbrance which existed prior 
 to the marriage, or to the husband's title, 332. 
 a mere debt existing prior to marriage, though reduced to a judg- 
 ment afterwards, will not bar dower, 332. 
 judgment evicting the husband's estate, obtained by fraud or collusion, 
 no bar to dower, 332. 
 
Index. 591 
 
 DO WER ,— ( Continued.') 
 statute to that effect in 
 Arkansas, 332. 
 Illinois, 882. 
 Kentucky, 332. 
 Missouri, 332. 
 New Jersey, 332. 
 Ohio, 332. 
 Virginia, 382. 
 West Virginia, 332. 
 dower in vendee's wife barred by decree setting aside the sale, 332. 
 dower barred by exercise of right of eminent domain, 332. 
 but not by dedication by husband to public use, 332. 
 distinction ignored in Ohio, 332. 
 equity will protect wife's interest where land is taken by virtue of 
 
 eminent domain, 333. 
 dower not barred by conveyance of husband without wife's assent in 
 due form, 333. 
 statutes to that effect in 
 Arkansas, 333. 
 Illinois, 888. 
 Missouri, 333. 
 case not altered by the ignorance of the purchaser that any claim for 
 
 dower existed, 833. 
 in States where dower is confined to land of which husband dies seized, 
 husband may bar dower by his deed, 834. 
 but only when the sale is in good faith, 334. 
 good consideration sufficient to support the deed, 334. 
 the conveyance must be actually made, 334. 
 husband cannot bar dower by letting the Statute of Limitations 
 
 run against him, 334. 
 nor by a parol sale and receipt of part of the price of the land, 334. 
 registration of deed after husband's death will relate to the time 
 of conveyance as against dower, 334. 
 in Connecticut, tenant in tail may bar his wife's dower by a convey- 
 ance in fee, 384. 
 wife of mortgagor dying in possession entitled to dower in Ten- 
 nessee, 335. 
 except as to land mortgaged or conveyed in trust prior to mar- 
 riage, 335. 
 mortgage by husband not joined in by wife will be no bar to dower, 335. 
 
592 Index. 
 
 DOWEB.,— (Continued.) 
 
 case not altered if husband represented himself as unmarried, 335. 
 after inchoate right attaches, wife not bound by an admission of the 
 
 husband that mortgage is for purchase-money, 835. 
 foreclosure of mortgage not joined in by wife, no eifect on dower, 385. 
 
 unless the dower right is expressly put in issue, 335. 
 in Pennsylvania, mortgage by husband alone is good as against the 
 wife's dower, 335. 
 but to a ^nortgage made for the purpose of defrauding the wife of 
 her dower, the wife may take a defence, 336. 
 judgment after marriage against husband will not affect dower, 336. 
 nor execution thereon, 336. 
 
 although the sale is subject to a mortgage in which wife has 
 joined, and proceeds are applied to said mortgage, 336. 
 in Georgia, judgment, even if obtained before the marriage, will not 
 
 affect dower, 386. 
 in Pennsylvania, a sale upon a judgment bars dower, 336. 
 
 or a sale under a testamentary power to pay debts, 337. 
 in Iowa, a judicial sale bars dower, 887. 
 
 wife protected against fraudulent judicial sale, 337. 
 in Maryland, bar where wife is party to judicial proceedings, 337. 
 effect of levy when wife is dowable only when husband dies seized, 336. 
 relation of sheriff's deed when sale has been made in husband's life- 
 time, 336. 
 effect of sale for taxes, 387. 
 
 assignment for benefit of creditors no bar to dower, 887. 
 bankruptcy not a bar, 338. 
 mechanic's lien not superior to dower, 339. 
 
 decree for specific performance of contract of sale by husband no bar 
 to dower, 339. 
 nor execution of such contract by personal representative, 339. 
 sale upon foreclosure proceedings on purchase-money mortgage will 
 not deprive wife of right to redeem, 840. 
 nor possession by a mortgagee, unless notice is given of adverse 
 holding, which is persisted in until the bar of the statute of 
 limitation has run, 840. 
 dower barred by enforcement of mortgage in which wife has joined, 840. 
 foreclosure proceedings against husband alone, 340. 
 
 against both husband and wife, 340. 
 not barred when wife is an infant, 340. 
 sale on such proceedings may be after husband's death, 340. 
 
Index. 593 
 
 DO WER — ( Continued.) 
 
 as to whether it is barred by a sale for the same debt as that -which 
 
 the mortgage is given to secure, 340. 
 bar by joinder in mortgage eiFectual only in favor of mortgagee, 
 
 341. 
 or those who equitably take his place, 342. 
 equity will protect rights of wife so far as is consistent with the 
 equities of the mortgagee, 342. 
 mortgage liens paid and extinguished, dower is revived in full force, 342. 
 whether purchase of mortgage by the assignee of the equity of re- 
 demption will raise a dowable seizin in mortgage, 342. 
 assignee of the equity of redemption may keep alive the mortgage to 
 protect himself against dower, 3-^. 
 effect of omitting to take assignment of mortgage, 343. 
 mortgage redeemed by husband's personal representatives, widow's 
 dower not subject to contribution, 344. 
 but otherwise in favor of one having an interest in the redemption, 
 344. 
 Vermont statute with reference to redemption, 344. 
 law in Iowa on the same subject, 344. 
 dower must contribute to a charge which antedates the husband's title, 
 
 344. 
 mortgage given to secure a condition, on performance thereof right of 
 
 dower becomes absolute, 345. 
 dower not barred by common recovery suffered by husband alone, 345. 
 partition being made amongst co-tenants in good faith, wife's dower 
 confined to the purpart received by the husband, 345. 
 but not if the parts assigned are made uneven for a consideration, 
 345. 
 partition in legal form which actually divides land binds the wife, 345. 
 
 even if she is not a party to the proceedings, 345. 
 aliter where there is a sale by order of the Court, 345. 
 statute of Michigan on subject of proceedings in partition with refer- 
 ence to wife's dower, 346. 
 statutes of Wisconsin on same subject, 346. 
 in case of exchange, widow required by statute to elect in which piece 
 
 of ground she will have dower, 346. 
 statutes to that effect in 
 Arkansas, 346. 
 Illinois, 346. 
 Michigan, 346. 
 50* 2N 
 
594 Index. 
 
 • 
 
 DOWEK — C Continued.) 
 Nebraska, 346. 
 New York, 346. 
 Oregon, 346. 
 Wisconsin, 346. 
 vendor's lien superior to dower, 346. 
 
 but while unenforced, will not reduce its amount, 347. 
 
 exists only where its object is money, and not where the vendor 
 
 relies on other security, 347. 
 waived by taking independent security, 347. 
 eiTect of parting with legal title, 347. 
 
 of taking deed of trust, 348. 
 once satisfied, cannat be kept alive as against dowery to secure 
 
 other debts to the vendor, 348. 
 in suit to enforce lien, dower inchoate or consummate may be set 
 
 off, 348. 
 in suit after husband's death to enforce lien, widow must be made 
 a party, 348. 
 dower not barred by a change of a legacy on devised land, 348. 
 dower superior to rights of creditors, 349. 
 aliter in Pennsylvania, 349. 
 not barred by a sale by order of a probate court for the debts of 
 
 the husband, 349. 
 where widow is made a party to the proceedings, 349. 
 when she concurs in sale, and receives a portion of the pro- 
 ceeds, 349. 
 statutory provisions for sale of decedent's land free of dower, 
 Alabama, 349. 
 Connecticut, 349. 
 Maryland, 349. 
 breach of condition and entry will defeat dower in a conditional 
 estate, 349. 
 so the occurrence of an event upon which the estate is determi- 
 nable, 349. 
 or in the case of a conditional limitation, 350. 
 but not in the case of an executory devise, 350. 
 execution of power by husband may bar dower, 350. 
 bar by act to which wife is actually or constructively a party, 
 jointure — ^requisites of, 350. 
 statute of 27 Hen. 8, c. 10, § 6 . . . 350. 
 not in force in Alabama, 351. 
 
Index. 595 
 
 DOWER,— ( Continued.) 
 
 jointure not created by deed made to wife after marriage, unless 
 there is an express declaration to that effect, or an equivalent 
 act, 351. 
 
 jointure lands need not be free from incumbrance, 351. 
 ante-nuptial agreement, 351. 
 
 not bound by same rules as jointure, 352. 
 
 provision for widow must be fair and reasonable, 352. 
 
 must commence immediately upon husband's death, 352. 
 
 whether an agreement that wife shall control and dispose of her 
 own property will be a good bar, 352. 
 
 provision may be of either realty or personalty, 352. 
 
 as to annuity as a bar, 352. 
 
 the agreement is within the Statute of Frauds, 363. 
 
 marriage, in the absence of actual fraud, not a part performance 
 within the statute, 353. 
 
 how far marriage, per se, is a good consideration for an agree- 
 ment not to claim dower, 353. 
 
 the agreement ineffectual without performance, 353. 
 
 on failure to perform, widow may rescind the contract, 353. 
 
 performance must be at least substantive, 353. 
 
 when contract is to provide sufficiently by will for the widow, 
 equity will judge of the sufficiency, 354. 
 ante-nuptial contract will not be extended by implication to lands ac- 
 quired by the husband after its date, 354. 
 
 will be avoided by fraud, 355. 
 
 whether binding upon an infant, 355. 
 
 a marriage contract alleged, must be strictly proved, 355. 
 settlement during coverture, 
 
 to be a bar, must be voluntarily accepted by the wife after her 
 husband's death, 355. 
 
 mere gift or settlement not in bar of dower unless so expressed, 
 355. 
 
 acceptance of homestead no bar to dower, 356. 
 
 widow who loses provision through no fault of her own, may have 
 dower or indemnity, 356. 
 
 but deterioration of property taken in lieu of dower, will not re- 
 vive dower right, 356. 
 statutes upon jointure and settlement : 
 
 Arkansas, 356. 
 
 Connecticut, 356, 358. 
 
596 Index. 
 
 DOWEK ,— ( Continued.) 
 
 Delaware, 356. 
 
 Georgia, 356. 
 
 Illinois, 356. 
 
 Kentucky, 357, 358. 
 
 Maine, 357, 358. 
 ■ Maryland, 858. 
 
 Massachusetts, 357, 358. 
 
 Michigan, 357, 358. 
 
 Missouri, 357. 
 
 Nebraska, 357, 358. 
 
 New Hampshire, 358. 
 
 New Jersey, 357, 358. 
 
 New York, 357. 
 
 Ohio, 357, 358. 
 
 Oregon, 357, 358. 
 
 Rhode Island, 358. 
 
 South Carolina, 358. 
 
 Vermont, 358. 
 
 Virginia, 358. 
 
 West Virginia, 358. 
 
 Wisconsin, 357. 
 jointure not forfeited by misconduct of wife, 358. 
 
 aliter by statute, 358. 
 devise or bequest accepted by widow may bar dower, 359. 
 
 intent to bar must be plain, 359. 
 
 in some cases held that the intent must be expressed, 359. 
 widow may be compelled to elect between the provision in the will and 
 dower by a strong and necessary implication, 359. 
 
 what will, and what will not, raise such implication, 359-362. 
 presumption that a devise or bequest to widow is in lieu of dower estab- 
 lished by statute in 
 
 Arkansas, 362. 
 
 Illinois, 362. 
 
 Maine, 362. 
 
 Massachusetts, 362. 
 
 Michigan, 362. 
 
 Nebraska, 362. 
 
 New York, 362. 
 
 Ohio, 362. 
 
 Oregon, 362. 
 
Index. 597 
 
 DOWEE,— ( Continued.) 
 
 Pennsylvania, 362. 
 
 Wisconsin, 362. 
 presumption confined to cases in which the provision is of realty in 
 
 Missouri, 362. 
 
 New Jersey, 362. 
 in Maryland, presumption that the provision is in lieu of dower, but 
 when provision is mixed, widow need elect only between the 
 realty devised and dower, 363. 
 in Greorgia, presumption in favor of dower, 363, 
 parol evidence as to intent inadmissible, 363. 
 
 aliter in Virginia, 363. « 
 
 election by widow, 
 
 necessity of acceptance to constitute bar, 363. 
 
 election may be made in the statutory mode or by matter in pais, 363. 
 
 knowledge required to render election in pads binding, 363. 
 
 widow not bound to elect before husband's estate is settled, 364. 
 
 or pending controversy as to will, 364. 
 when she may retract election, 364. 
 effect of election, 365. 
 how election in pais is shown, 365. 
 time within which election must be made fixed by statute in 
 
 Alabama, 366. 
 
 Arkansas, 366, 
 
 Illinois, 366. 
 
 Kentucky, 366. 
 
 Maryland, 366. 
 
 Michigan, 366. 
 
 Missouri, 366. 
 
 Nebraska, 366. 
 
 New Jersey, 366. 
 
 New York, 366. 
 
 North Carolina, 366. 
 
 Ohio, 366. 
 
 Oregon, 366. 
 
 Tennessee, 366. 
 
 Wisconsin, 366. 
 failure to elect generally taken as an election against dower, 366. 
 
 aliter in Iowa, 366. 
 Ohio, 367. 
 effect of suspension of Statute of Limitations on election by widow, 367. 
 
598 Index. , 
 
 DOWER,— ( Continued.) 
 
 relief in equity where widow has been prevented by fraud from dis- 
 senting in time, 367. 
 no election necessary where will contains no provision for widow, 367. 
 
 or, in Tennessee, where husband dies insolvent, 367. 
 right of election personal, and does not survive to heirs or representa- 
 tives of widow, 367. 
 cannot be exercised by will, 368. 
 by whom exercised ia case of widow's insanity, 368. 
 to what land the bar of an acceptance of provision extends, 868. 
 incidents of bequest in lieu of dower, 
 
 rfct subject to contribution with other bequests, 369. 
 but not preferred to claims of testator's creditors, 369. 
 how far wife is considered as a purchaser of the bequest in lieu of 
 dower, 369. 
 such bequests not a charge on lands devised to others, 370. 
 condition attached to bequest, 870. 
 
 on failure of provision or bequest, right of dower revives, 370. 
 failure need not be total, may be only substantial, 370. 
 bar by joinder of wife in husband's deed, 870. 
 
 statutory provision that such joinder shall be a bar, 
 Alabama, 371. 
 Illinois, 371. 
 Maine, 371. 
 Maryland, 371. 
 Massachusetts, 371. 
 Michigan, 371. 
 Missouri, 371. 
 Nebraska, 871. 
 New Jersey, 871. 
 North Carolina, 871. 
 Oregon, 871. 
 Ehode Island, 871. 
 South Carolina, 371. 
 Wisconsin, 371. 
 requisites of deed : 
 
 must show intent to bar dower, 871. 
 
 mere signing and sealing not sufficient, 371. 
 
 otherwise in New Hampshire, 371. 
 mere joining in covenants not sufficient, 371. 
 but otherwise in Iowa, 371. 
 
Index. 599 
 
 DO WEE — ( Continued.) 
 
 expression that deed is in "token of assent," etc., not sufficient, 
 
 371. 
 dower need not be mentioned by name, if covered by the expressions 
 
 used, 371. 
 uniting in grant as part of the deed, sufficient, 372. 
 statutory provisions as to execution and acknowledgment of deed in 
 bar of dower, 
 
 Alabama, 372. 
 
 Delaware, 372. 
 
 Florida, 372. 
 
 Illinois, 372. 
 
 Maryland, 372. 
 
 Michigan, 372, 
 
 Missouri, 372. 
 
 Nebraska, 372. 
 
 New Jersey, 372. 
 
 North Carolina, 372. 
 
 Oregon, 372. 
 
 South Carolina, 372. 
 
 Wisconsin, 372. 
 where conveyance in bar of dower is not regulated by special statute, 
 a compliance with statutes regulating the conveyance of a mar- 
 ried woman's realty will constitute a good bar, 372. 
 acknowledgment a substantial part of the deed, 372. 
 
 so, a separate examination of the wife, 373. 
 
 but not in Maryland, 372. 
 certificate must show substantial compliance with the act regulating 
 acknowledgments, 373. 
 
 must show separate examination, 373. 
 acknowledgment cannot be shown by parol, 373. 
 effect of acts assuming to cure defective acknowledgments, 374. 
 
 constitutionality of such acts, 374. 
 bar cannot be made by separate deed of wife, 375. 
 
 even if the coverture is that of a second husband, 375. 
 
 held aliter in New Hampshire, 375. 
 bar by separate deed of wife in 
 
 Nebraska, 371. 
 and where made to the alienee of the husband in 
 
 Alabama, 375. 
 
 Michigan, 375. 
 
600 Index. 
 
 BOWER,— (Continued.) 
 
 acknowledgment by husband and wife on diiferent days, does not 
 destroy the joint character of the deed, 375. 
 nor does the fact that it has been executed by them on different 
 days, 375. 
 -where husband is insane, wife may join with his guardian or com- 
 mittee, 376. 
 she may also join with husband's attorney, 376. 
 ia absence of statutory power, infant feme covert cannot bar her 
 
 dower, 376. 
 permitted to bar dower by statute, in 
 Alabama, 376. 
 Maine, 376. 
 Maryland, 376. 
 wife cannot bar dower by deed executed by attorney, 376. 
 aliter in Missouri, 376. 
 
 and in States where a feme covert is permitted to act generally 
 by attorney, 376. 
 wife deserted by husband may, after the presumption of his death has 
 arisen, bar her dower, 377. 
 and in New Jersey, where she lives- separate by virtue of a de- 
 cree obtained by her, 377. 
 dower of insane wife, how barred in 
 Illinois, 377. 
 Massachusetts, 377. 
 Michigan, 377. 
 Missouri, 377. 
 Ohio, 377. 
 Pennsylvania, 377. 
 Virginia, 377. 
 West Virginia, 377. 
 Wisconsin, 377. 
 guardian of lunatic wife will not ex mero officio have authority to join 
 
 in a deed to bar dower, 377. 
 dower not barrable by parol, 378. 
 
 nor can a deed be converted by parol into a bar of dower, 378. 
 but an agreement by parol, followed by receipt and considera- 
 tion, made after husband's death, may be enforced in equity, 
 378. 
 deed defective as to husband will be no bar of dower, 379. 
 release of dower to husband, void, 379. 
 
Ikdex. 601 
 
 DOWER— ( Continued:) 
 
 although trustee for wife intervene, 379. 
 
 but after husband's death, wife cannot hold both considera- 
 tion for release and her dower, 379. 
 fact that wife lives apart from husband, will not validate a release to 
 him, 379. 
 (diter in New Jersey when the separation is by a decree, 379. 
 release of dower in separation agreement, 379. 
 after divorce, wife may release to husband, 380. 
 release to a stranger to the title of the land is invalid, 380. 
 a consideration money to husband alone will support a release of dower, 
 
 380. 
 release of dower a valid consideration for a deed to the wife, 380. 
 for a settlement upon her, 380. 
 for a promissory note given her, 381. 
 grossly disproportionate settlement evidence of fraud, 381. 
 effect of a release of dower, 381. 
 agreement to release not equivalent to a release, 382. 
 effect of setting aside deed in fraud of creditors in which wife hf„s 
 joined, 382. 
 to revive wife's right, the fraudulent conveyance must be actually 
 
 set aside, 383. 
 if title is lost through laches of grantee, dower still barred, 383. 
 assertion by the wife of an interest under the fraudulent deed will 
 not continue the bar of dower on its being set aside, 383. 
 where deed fails through a recovery against husband for defect of title, 
 
 dower revives, 383. 
 joinder in lease bars dower only to the extent of the lease, 383. 
 bar of dower by adultery and elopement of wife, 384. 
 statute of West. 2 cap. 34 . . . 384. 
 statutes to same effect, 
 Delaware, 384. 
 Georgia, 384. 
 Illinois, 384. 
 Kentucky, 384. 
 North Carolina, 384. 
 Ohio, 384. 
 Virginia, 384. 
 West Virginia, 384. 
 held in Pennsylvania, North Carolina, and Delaware that where 
 wife is forced to leave in consequence of misconduct of the lius- 
 51 
 
602 Ikdex. 
 
 BOWEB— {Continued.) 
 
 band, her dower is not forfeited by subsequent adultery, 384, 
 385. 
 aliter in New York, 385. 
 if wife, though driven off, refuses, when invited, to return, the 
 
 dower is barred, 385. 
 elopement need not be with the adulterer, 385. 
 adultery committed when wife is living apart from her husband 
 
 by his consent a bar, 385. 
 statute of West. 2, c. 34, not in force in Massachusetts, 385. 
 Rhode Island, 385. 
 Iowa, 385. 
 Maine, 385. 
 New York, 386. 
 bigamy a bar to dower in Maryland, 386. 
 effect of divorce, 
 
 divorce a vinculo matrimonii a bar to dower, irrespective of the cause, 
 or who is the moving party ia the divorce proceedings, in 
 Indiana, 386. 
 New Hampshire, 386. 
 New Jersey, 386. 
 Pennsylvania, 386. 
 
 where for the fault of the wife generally, 
 Arkansas, 386. 
 Illinois, 386. 
 Missouri, 386. 
 New York, 386. 
 North Carolina, 386. 
 Ohio, 386. 
 where for adultery, 
 Alabama, 387. 
 where decree for permanent alimony accompanies the divorce, 
 
 Georgia, 387. 
 dower saved where wife is the innocent party, and no part of the 
 husband's estate is assigned for her support, 
 Connecticut, 387. 
 dower given to vest immediately on the divorce, where granted 
 for certain causes, 
 Maine, 387. 
 Massachusetts, 387. 
 Michigan, 388. 
 
Index. 603 
 
 DO WEE,— ( Continued.) 
 
 Nebraska, 388. 
 . Ehode Island, 387. 
 Wisconsin, 388. 
 legislative divorce as effectual a bar as a judicial one, 388. 
 divorce a mensa et thoro not a bar, 388. 
 Statute of Limitations does not generally include dower, 388. 
 held otherwise in 
 Arkansas, 389. 
 Illinois, 389. 
 Iowa, 389. 
 Kentucky, 389. 
 Maine, 389. 
 Pennsylvania, 389. 
 
 South Carolina ; but there the statute will not run iu favor 
 of the heir, 389. 
 special Statute of Limitation with reference to dower in 
 Alabama, 389. 
 Georgia, 389. 
 Massachusetts, 389. 
 New York, 389. 
 rule of stale claims applicable to claims for dower, 390. 
 no presumption against widow from possession adverse to the husband, 
 
 390. 
 where land is asset for payment of decedent's debts, a sale therefor 
 with notice to widow bars dower, 390. 
 bar by estoppel, 
 
 widow may estop herself from claiming her dower, 390. 
 how far she is estopped by standing by during a sale, 390. ■ 
 or by statement that sale is free of dower, 390. 
 or by a sale in which she joins as executrix, 39L 
 by agreement with heir, 391. 
 by laches, 391. 
 assignment of dower, 
 
 before assignment, widow has no right of entry, 391. 
 aliter in Connecticut, 392. 
 Michigan, 392. 
 Vermont, 392, 393. 
 cannot maintain possessory action, 392. 
 her unassigned dower not seizable in execution, 392. 
 
604 Index. 
 
 DO WER ,— ( Continued.) 
 
 but may be reached by creditor's bill where widow is in posses- 
 sion, 392. 
 and in New York is liable generally in equity, 392. 
 widow not liable to taxes before assignment, 393. 
 
 but if in possession, may take crops and account therefor, 393. 
 
 cannot make a lease, 393. 
 
 need not be made a party to partition proceedings, 393. 
 
 cannot convey dower so as to vest a right of action in her grantee, 
 
 393. 
 but may release to the owner of the fee, 393. 
 
 or to the heir, though out of possession, 393. 
 or to the equitable owner of the fee, 393. 
 or to the purchaser of the fee, 393. 
 
 or to one who by covenants of warranty is in privity with 
 the owner of the fee, 393. 
 the widow may make a contract with reference to her unassigned 
 
 dower, enforceable in equity, 393. 
 assignment should be made before payment of husband's debts from 
 the realty, 393. 
 should be made by the heir or tenant, 394. 
 duty of the heir recognized by statute in 
 Arkansas, 394. 
 Illinois, 394. 
 Massachusetts, 394. 
 Ohio, 394. 
 Rhode Island, 394. 
 if heir is a minor, his guardian may assign, 894. 
 in Michigan, the guardian of a spendthrift heir may assign, 394. 
 assignment may be by parol, 394. 
 
 must be accepted by widow to become binding, 394. 
 if heir or tenant does not assign, widow may have dower 
 
 assigned adversely, 394. 
 before doing so, must make demand for dower on heir or tenant 
 
 of freehold, 395. 
 demand on sub-tenant of non-resident owner sufficient, 395. 
 
 or upon his agent to collect rents, 395. 
 demand in case of cotenancy, 395. 
 demand may be by parol, 395. 
 
 aliter in New Hampshire, 395. 
 demand unnecessary in New York, 395. 
 
Index. 605 
 
 DOWER — ( Continued.) 
 
 assignment should be by metes and bounds, 395. 
 if of land held in common, partition should precede, 395. 
 a part of a building may be assigned, 395. 
 
 semble, to such an assignment the -widow's consent is necessary, 395. 
 where assigned by sheriff or commissioners, the return should be 
 definite, 395. 
 how assignment is made in property which cannot be set off by metes 
 and bounds, 396. 
 statutes with reference thereto, 
 Arkansas, 396. 
 Maine, 396. 
 Massachusetts, 396. 
 Michigan, 396. 
 Missouri, 396. 
 Nebraska, 396. 
 New Hampshire, 396. 
 Ohio, 396. 
 Oregon, 396. 
 Rhode Island, 396. 
 South Carolina, 396. 
 Vermont, 396. 
 Wisconsin, 396. 
 widow may insist on having secured to her an annual sum or on being 
 endowed of the rents and profits, 396. 
 measures to be adopted in ascertaining yearly value, 396. 
 where money is assigned in lieu of land, the commissioners must 
 certify the imjJossibility of dividing the land justly or without 
 ruining it, 396. 
 assignment made of annual value, is not to be subsequently varied, 396. 
 
 aliter when of rents and profits, 396. 
 for assignment of sum in gross, consent of all parties in interest 
 
 necessary, 396. 
 when land is in distinct parcels, assignment should be made in each 
 
 separately, 397. 
 where, however, it can be done without injustice, the widow may 
 receive her dower in one portion in lieu of the whole, 397. 
 statutes to this eflfect in 
 Kentucky, 397. 
 Tennessee, 397. 
 Rhode Island, 397. 
 51* 
 
G06 Index. 
 
 t 
 
 TfOWER— {Continued.) 
 
 Georgia, in case all the lands in which, dower is sought lie in 
 one county, 397. 
 on avoidance of assignment against common right, all parties restored 
 
 to their original position, 397. 
 land held by alienees of husband in portions, dower must be assigned 
 
 in each tract, 897. 
 where husband has aliened some of his land and retained some, assign- 
 ment should be out of the retained portion, 397. 
 if alienee has improved land, the dower should be assigned in the un- 
 improved portion, 397. 
 assignment of dower in wild lands should not be in sparse tracts, 398. 
 in assignment against common right, the widow takes, subject to in- 
 cumbrances, 398. 
 by assent, widow may have the value of her dower in land in fee, 
 
 398. 
 in assigning, the productiveness of the land to be considered, 398. 
 if possible, without prejudice to rights of others, the mansion-house 
 should be embraced in the dower land, 398. 
 statutes with reference thereto, 
 Alabama, 398. 
 Arkansas, 398. 
 Florida, 398. 
 Iowa, 398. 
 Tennessee, 398. 
 a privilege in land of others not assignable for dower, 398. 
 value of land, as of what time fixed for purpose of assignment, 398. 
 as against heirs, 398. 
 as against alienee of h"usband, 399. 
 where land has depreciated since conveyance, 401. 
 statutory regulation of the question, 
 Kentucky, 401. 
 Michigan, 401. 
 Minnesota, 401. 
 Nebraska, 401. 
 Ohio, 401. 
 Oregon, 401. 
 South Carolina, 401. 
 Wisconsin, 401. 
 Virginia, 401. 
 excessive assignment set aside in equity, 401. 
 
Index. 607 
 
 » 
 
 DOWER,— ( Continued.) 
 
 on eviction after assignment, according to common right, widow may 
 
 be re-endowered, 402. 
 collusive assignment not binding on minor heir, 402. 
 statutes, 
 
 Kentucky, 402. 
 Michigan, 402. 
 Missouri, 402. 
 Nebraska, 402. 
 New Jersey, 402. 
 New York, 402. 
 Ohio, 402. 
 Oregon, 402. 
 Wisconsin, 402. 
 illegal, informal, or defective assignment rendered binding by long 
 
 acquiescence, 402. 
 provision for assignment which will be final except in case of lawful 
 eviction, 
 Michigan, 402. 
 Nebraska, 402. 
 New York, 402. 
 Oregon, 402. 
 Wisconsin, 402. 
 after assignment, wiffe is seized as of her husband's seizin, 402. 
 
 cannot become a party to a partition, 402. 
 assignment carries with it growing crops, 402. 
 
 estops assignor from denying that the land was subject to dower, 
 403. 
 quarantine, 
 
 established by statute 9 Hen. III., c. 7, 403. 
 recognized and regulated in United States, statutes of 
 Alabama, 403. 
 Arkansas, 403. 
 Florida, 403. 
 Georgia, 403. 
 Kentucky, 403. 
 Maine, 403. 
 Massachusetts, 403. 
 Missouri, 403. 
 Michigan, 403. 
 Nebraska, 403. 
 
608 Index. 
 
 DOWER,— ( Continued.) 
 
 New Hampshire, 403. 
 
 New Jersey, 403. 
 
 New York, 403. 
 
 Ohio, 403. 
 
 Oregon, 403. 
 
 Rhode Island, 403. 
 
 Vermont, 403. 
 
 Virginia, 403. 
 
 West Virginia, 403. 
 exists only in lands of which widow is dowable, 404. 
 
 and is confined to actual residence of husband, 404. 
 does not cover crops which would otherwise be assets in hands of ex ■ 
 
 ecutor, 404. 
 not subject to execution, 404. 
 not given to widow who at the time of her husband's death lived 
 
 apart from him, 404. 
 during its existence the widow is not subject to taxes, 404. 
 
 or liable for rent, 404. 
 
 need not occupy in person, 404. 
 
 can recover rent if the possession is withheld, 404, 405. 
 
 can obtain possession by ejectment, 404. 
 
 obligation where widow is executrix, 404. 
 right not lost by subsequent marriage, 405. 
 
 or by an election to take a child's portion instead of dower, 405. 
 or a statutory provision during administration, 405. 
 if widow surrenders possession, she cannot retake it, 405. 
 
 aliter in Georgia, 405. 
 on expiration of quarantine widow must leave premises, although dower 
 be not assigned, 405. 
 detention of dower, 
 
 at common law, originally no damages for, 405. 
 
 Statute of Merton, 405. 
 
 account of rents and profits given by equity in cases not falling within 
 
 the statute, 405. 
 no damages recoverable until after demand, 405. 
 right to damages given by statute, 
 
 Delaware, 406. 
 
 Maine, 406. 
 
 Massachusetts, 406. 
 
 Michigan, 406. 
 
Index. 609 
 
 DOWEE — ( Continued.) 
 Missouri, 406. 
 Nebraska, 406. 
 New Hampshire, 406. 
 New Jersey, 406. 
 New York, 406. 
 Oregon, 406. 
 Khode Island, 406. 
 Virginia, 406. 
 West Virginia, 406. 
 Wisconsin, 406. 
 demand for assignment necessary both at law and equity before liability 
 ' for detention arises, 406. 
 
 comm^cement of suit is sufficient notice, 406. 
 aliter in Rhode Island, 406. 
 Maine, 406. 
 measure of damages for detention, 406. 
 incidents of^dower, 
 
 widow liable for taxes, 406. 
 
 impeachable for waste, 407. 
 by statute, waste wUl cause forfeiture of estate in 
 Maine, 407. 
 Massachusetts, 407. 
 Ohio, 407. 
 Ehode Island, 407. 
 penalty limited to damages in 
 Delaware, 407. 
 Maryland, 407. 
 Michigan, 407. 
 Nebraska, 407. 
 New Hampshire, 407. 
 Oregon, 407. 
 dowress may clear land reasonably necessary for the cultivation of the 
 rest of her dower land, 407. 
 may reasonably clear wood land, 407. 
 
 and is not bound to use each parcel, as though her husband 
 had died seized of it alone, 407. 
 injunction to stay waste will not be issued against widow, 407. 
 valuation of dower iaterest, 407. 
 laws governing dower, 
 
 in dealing with dower legal principles prevail, 407. 
 
 20 
 
610 Index. 
 
 DO WEE— ( Continued.) 
 
 dower subject to lex rei dtcB, 408. 
 
 rule which governs when there has been a change in law after the 
 
 dower right Jias attached, but before it becomes consummate, 
 
 408. 
 
 ELECTION, 
 
 by widow to take provision by will in lieu of dower, 363. 
 
 EMBLEMENTS, 
 
 right of life tenant to, 204. 
 
 right of tenant by curtesy to, 277. 
 
 EMINENT DOMAIN, 
 
 See State. 
 
 ENTEY, 
 
 need not be made by issue in tail to avoid conveyance of'ancestor, 104. 
 
 to take advantage of breach of condition, 143. 
 no right of in widow before assignment of dower, 391. 
 
 EQUITABLE ESTATES, 
 curtesy in, 262. 
 
 except where barred by the instrument creating the estate, 269. 
 dower in, 311i' 
 
 ESCHEAT, 
 
 of land purchased by alien, 509. 
 
 for want of competent heirs of alien, to whom grant has been made by 
 the United States, 512. 
 
 ESTATE FOE LIFE, 
 definition, 194. 
 creation of, 195. 
 
 cannot be created by parol, 195. 
 (a) by deed, 
 by deed expressly limiting the estate for life of grantee or some 
 
 other person, 195. 
 by deed omitting the word "heirs" or its equivalent, 195. 
 deed to one, and his executors, administrators, and assigns, 195. 
 to one and " his successors," 195. 
 deed to one quamdiu se bene gesserit, 196. 
 so long as a certain rent is paid, 196. « 
 until a contingency happen, 196. 
 durante viduitate, 196. 
 
Index. 611 
 
 ESTATE FOE LIFE,— (Cbwimwed) 
 dum sola, 196. 
 during coverture, 196. 
 deed to one and his generation, even -where the period of limitation 
 ■will in all probability outlast the life of the grantee, 196. 
 other instances, 196. 
 life estate may be created by a reservation in a deed for a greater 
 
 estate, 196. 
 quit claim by tenant ia common to his co-tenant, conveys life estate 
 only, 196. 
 (6) by devise, 
 if testator's intention so appear, a devise apparently in fee may be 
 held to be only for life, 197. 
 devise in words clearly giving fee, held to be for life only if fol- 
 lowed by devise over on death of first taker, 197. 
 and if the devise over depends on a contingency connected with 
 
 the death of the first taker, 197. 
 otherwise, where devise over is for life, and the fee can be sus- 
 tained without destroying the life estate, 197. 
 devise of " improvement," followed by devise over, 197. 
 
 to one " forever and during her life," 197. 
 life estate not enlarged to fee by words in preamble of will, unless 
 there is a connection between the preamble and devising clause, 
 62, 197. 
 or there is a provision in the will inconsistent with a gift for life 
 
 only, 197. 
 preamble not allowed to control material words, 197. 
 general devise, with a prohibition upon selling or incumbering, con- 
 stitutes a life estate, 198. 
 even where the devise contains a provision for descent, 198. 
 to convert a general devise into a fee by reason of a burden imposed 
 on the devisee in respect thereof, the devise binding must be a 
 real one, to be borne after testator's death, or if prior, must be 
 shown to have been known by devisee, 198. 
 express devise for life not turned into a fee by a charge, 198. 
 
 nor where there is a plain intent to devise for life, 198. 
 devise in terms for life, with general power of disposition, does not give 
 a fee, but a life estate only, 199. 
 if power is exercised, vendee or appointee will take fee, 199. 
 devise to executors of power to sell, does not vest in them any estate, 
 199. 
 
612 Index. 
 
 ESTATE FOE JAFE— {Continued.') 
 
 direction that land shall be equally divided amongst certain persons, 
 
 will not give more than a life estate, 199. 
 devise to one and his male children lawfiilly begotten of his body, to 
 
 be equally divided amongst them and their heirs forever, held 
 
 to give life estate only, 199. 
 use of word " children," in connection with " heirs of body," may re- 
 duce an apparent estate tail to a life estate, 200. 
 general devise with devise over, 201. 
 
 life estate given by implication, without words of direct gift, 201. 
 devise of right to occupy, possess, or enjoy for life, or for an indefinite 
 
 time, at option of devisee, 201. 
 devise over after a devise in fee may be for life, 201. 
 devise to one and his children, he having children at the time of the 
 
 devise, 201. 
 devise to one with a contingent fee, 201. 
 devise to two to be equally divided for life, and after their death to 
 
 their children, to be divided, 202. 
 devise subject to division amongst heirs of devisee's body, with devise 
 
 over in default of heirs, 202. 
 devise to be divided as the law directs, 202. 
 
 general devise with exception of land, previously devised in fee, 202. 
 devise in tail in States where estates tail are converted into life estates 
 
 in first taker, 202. 
 even where words of inheritance are not necessary to create a fee, still 
 
 where a life estate is given by implication, it will not be 
 
 enlarged without such wojds, 202. 
 life estate granted not destroyed by a subsequent grant of the fee in 
 
 the same will, 202. 
 
 other instances, 203. 
 incidents, 
 
 life tenant entitled to rents and profits, 203. 
 
 profits will go to his executors, 203. 
 
 rents accruing, but not due, will be apportioned, 203. 
 
 life tenant may permit the occupation of the land without payment of 
 
 rent, 203. 
 equitable life tenant has the right of possession where necessary for full 
 
 enjoyment of his estate, 204. 
 life tenant has right during his life to proceeds of an estate sold, 204. 
 right to recover for damage to realty confined to the damage to the 
 
 life interest, 204. 
 
Index. 613 
 
 ESTATE FOR lWe— ( GonimweA) 
 
 where land is taken by exercise of enoinent domain, life tenant is en- 
 titled to separate damages, 204. 
 may bring his action therefor without joining remainder-man, 204. 
 life estate liable for life tenant's debts, 204. 
 should, when taken in execution, be appraised as any other freehold, 
 
 204. 
 life tenant has right to emblements, 204. 
 to estovers, 205. 
 what are proper estovers, 205. 
 no right to cut timber for sale, 205. 
 even where proceeds are applied to proper purposes upon the 
 
 estate, 205. 
 has the right to work mines, quarries, or pits opened or used by 
 former owners, 206. 
 without stint, 206. 
 may open new shafts into the mine, 206. 
 
 but not on a tract which has not been opened, although the life 
 tenant owns another tract over the same mine, and which has 
 
 been opened, 206. 
 has no right to open new mines, 206. 
 or dig soil and use wood for brick-making, 206. 
 a mine once opened, may be worked, although disused, if disuse did 
 not arise from intention to devote the land to another use, 
 207. 
 life tenant under obligation to repair, 207. 
 
 but not to expend any extraordinary sum, 207. 
 or to rebuild where buildings have been destroyed by the act of 
 God, 207. 
 permanent improvements made by life tenant become part of the 
 inheritance, and he cannot demand contribution therefor, 207. 
 except where the improvement consists in finishing a work begun 
 before the dower of the estate, 208. 
 and where the estate is sold for the benefit of both the life tenant and 
 remainder-man, the former may be allowed the value of the 
 improvements at the time of the sale, 208. 
 tenant for life entitled to possession of house built by reversioner upon 
 
 the land, 208. 
 right to fixtures considered, 209. 
 
 life tenant must keep down interest upon incumbrances, 209. 
 but need not contribute to their extinction, 209. 
 52 
 
614 Index. 
 
 ESTATE FOR JAF'E— (Continued.) 
 
 but if he does contribute, he is entitled to a credit against the 
 
 remainder-man, 209. 
 if he allows the land to be sold for arrears of mortgage, he is 
 liable in damages to remainder-man, 209. 
 charge on land not established until after tenant for life's death, his 
 estate not liable to contribution for either principal or interest, 
 209. 
 must pay ordinary taxes, 209. 
 and wUl not be allowed to buy in for his own benefit at a tax sale, 
 
 210. 
 but in case of municipal assessments, he need only pay in propor- 
 tion to the value of his life estate, 210. 
 aliter where the assessment is for a matter which from its nature 
 
 will require frequent renewals, 210. 
 not bound to insure, 211. 
 
 where insurance has been made, in case of partial destruction, 
 either life tenant or remainder-man can require the insurance 
 money to be applied to repairs, 211. 
 in case of total loss, life tenant entitled to interest of fund paid 
 therefor, 211. 
 life tenant liable for waste by statute of Marlbridge, 211. 
 
 and by statute of Gloucester, 211. 
 liability for waste recognized in United States, 211. 
 
 extends to alienee of tenant for life, 211. 
 place wasted not recoverable in ejectment, 211. 
 but in action of waste, 211. 
 may not cut wood except for estovers, 211. 
 no defence that amount was replaced, 211. 
 not waste to cut timber on tLmber land, 211. 
 not waste to use wood necessary for raining, 212. 
 not waste to clear land reasonably, 212. 
 Court may, on petition, determine whether cutting timber will be for 
 
 the benefit of the estate, 212. 
 waste to open new mines, 212. 
 equity may enjoin waste on part of life tenant, 212. 
 in the United States, in cases of waste, the presumption is in favor of 
 
 the life tenant, 212. 
 tenant for life may convey his own or a less estate, 212. 
 conveyance in fee formerly worked a forfeiture, 212. 
 
 but not where it took effect under Statute of Uses, 212. 
 
Index. 615 
 
 ESTATE FOR LIFE— (Confrnwed.) 
 
 present rule, conveyance by tenant for life of greater estate than his 
 
 own will pass an estate for the life of the grantor only, 213. 
 conveyance in fee by tenant for life will not affect remainders, though 
 
 in form contingent, 213. 
 tenant for life cannot set up outstanding title against owner of fee, 213. 
 at common law, claim of fee by matter of record involved forfeiture 
 of life estate, 213. 
 or if life tenant admitted of record that fee was in a stranger, 213. 
 rule questioned as applicable in United States, 213. 
 conditions may be attached to a life estate, 214. 
 
 must be clearly expressed, 214. 
 tenant for life cannot by partition bind remainder-men, 214. 
 valuation of life estate, 214. 
 
 English rule of one-third, 214. 
 departure therefrom, 215. 
 life tables used, 215. 
 
 methods of valuation in United Stages, 215. 
 Maryland sliding scale, 215. 
 
 mortality tables not authoritative, but used as assistants, 216. 
 regard to be had to all circumstances, 216. 
 time of estimating the value of the estate, 216. 
 death of life tenant after sale of the estate and before distribution 
 
 of proceeds, 216. 
 rule laid down by Stoey, J., 216. 
 rule questioned, 217. 
 
 ESTATE FOR YEARS, 
 not entailable, 95. 
 widow not dowable of, 306. 
 
 except in Massachusetts and Missouri, when of a certain or greater 
 number of years, 307. 
 
 ESTATE IN COMMON, 
 widow dowable of, 309. 
 partition of, effect on dower, 345. 
 widow, before assignment of dower, held tenant in common with heirs 
 
 in Connecticut, 392. 
 assignment of dower in, 395. 
 estate tail in common given by devise to several and the heirs of their 
 
 bodies, 100. 
 
616 Index. 
 
 ESTATE IN FEE-SIMPLE, 
 
 See Fee-Simple. 
 
 ESTATE IN JOINT TENANCY, 
 
 ■widow not dowable of, 309. 
 
 aliter in Mississippi and West Virginia, 309. 
 
 and where jMS accrescendi has been abolished, 309. 
 
 ESTATE ON CONDITION, 
 
 See Condition. 
 
 ESTATE PUR AUTRE VIE, 
 not entailable, 95. 
 but may be settled by way of executory devise, trust, or remainder, so 
 
 that the same purpose wUl be served, 95. 
 widow not dowable of, 306. 
 
 ESTATE TAIL, 
 definition of, 92. 
 
 origin of — Stat. West. 2, #ap. 1 ... 93. 
 fee conditional at common law, 93. 
 recognized ia the United States, 94. 
 
 in Massachusetts by the fundamentals, 94. 
 Virginia statute of 1710 ... 94. 
 statute de donis reported in force in Pennsylvania, 94. 
 statute declared never in force in. Mississippi, 94.' 
 estate tail never part of the law of Louisiana, 94. 
 species of estates tail, 
 estate in tail, general, 94. 
 estate in tail, special, 95. 
 
 both classes may be limited either to heirs male or heirs female, 95. 
 no record of estate in frank marriage in the United States, 95. 
 what may be entailed, 
 
 subject of entail must be land or some other thing of a real nature, 95. 
 
 must be an estate of inheritance, 95. 
 incorporeal hereditament entailable, 95. 
 estate pur autre vie not entailable, 96. 
 nor estate for years, 95. 
 
 they may, however, be so settled by way of remainder, ex- 
 ecutory devise, or trust, as to answer many of the purposes of 
 an entail, 95. 
 unlocated land warrant formerly not subject of entail in Pennsylvania, 
 95. 
 
Index. 617 
 
 ESTATE TAll.,— {Continued.) 
 
 warrant and survey attended by payment of purchase-money entailable, 
 95. 
 creation of estate tail, 
 (a) by deed, 
 
 technical words, " heirs of the Ijody," 95. 
 
 the singular, " heir," may be sufficient, 96. 
 
 the words of inheritance may be supplied by reference to another 
 
 limitation, 96. 
 words of procreation, " of the body," supplied by equivalent ex- 
 pressions, 96. 
 estate tail given, not enlarged to a fee by an habendum to the 
 grantee and his heirs, 96. 
 
 or by a warranty to heirs as aforesaid, 96. 
 addition of " assigns " to " heirs of body," will not enlarge the estate to 
 
 a fee-simple, 96. 
 (6) by devise, 
 
 intention of testator to be observed, 96. 
 expressions held equivalent in a will to heirs of the body, 
 " issue," 97. 
 "legal heirs," 97. 
 " his male heirs," 97. 
 
 " his heirs lawfully begotten," followed by a remainder in 
 case of death of devisee without heirs, 97. 
 
 to one "and his children," he having no children at the 
 time the will was made, 97. 
 but see 200. 
 
 or " grandchildren " under like circumstances, 97. 
 a provision that the land shall descend " to the lawful heirs 
 from generation to generation," equivalent to a devise in tail, 
 97. 
 
 or to descend " to the legal offspring," 97. 
 " heirs," used in sense of " children," will give an estate tail, 
 97. 
 
 or in the sense of issue, 97. 
 
 or heir used in sense of issue, or as a nomen eoUedivuvi, 97. 
 devise in fee, followed by remainder in fee, or tail after indefinite fail- 
 ure of issue, construed a fee-tail, 98. 
 or if by a provision for reversion, 98. 
 expressions implying indefinite failure, 
 " die without issue," 98. 
 52* 
 
618 Index. 
 
 ESTATE TAIL— (Continued.) 
 
 " die witliout leaving issue," 98. 
 " die without children and heirs of the body," 99. 
 " having no issue," 98. 
 " die -without lawful issue of a son," 99. 
 limitation over if first taker die without issue of his body, presump- 
 tively refers to an indefinite failure, 98. 
 rule of construction otherwise in New Jersey, 98. 
 nature of estate in remainder, an important element in determining the 
 character of the failure meant, 98. 
 but not a controlling element, 99. 
 addition of "unmarried" to dying without issue, will not turn an in- 
 definite to a definite failure of issue, 99. 
 where intention is that issue shall take by inheritance from first taker, 
 and devise over is given, or in definite failure, the first taker 
 will take in tail, 99. 
 but in Kentucky held otherwisoj 99. 
 devise not expressly in fee, followed by limitation over, on death with- 
 out issue in fee or tail, will give an estate tail to first taker, 98. 
 devise which, imder the rule iu Shelly's case, would give estate in fee- 
 simple, followed by a devise over on death of first taker, or on 
 death of his issue under a certain age, wiU give first devisee 
 estate tail, 99. 
 express devise for life, with limitation over on death of devisee with- 
 out lawfiil issue of her body, held to give an estate tail, 99. 
 so such a devise, with power in devisee to dispose of the land to 
 such of his issue as he may see fit, 99. 
 devise to one and his heirs by his present wife, will give estate tail, 
 100. 
 or to one and his lawfully begotten heirs forever, 100. 
 devise to several and the heirs of their bodies, will give estate tail in 
 common, 100. 
 or to several of a class, and the heirs of their bodies begotten, 
 100. 
 words " in fee-simple," may be compelled to yield to the context of a 
 will, so that a devise will be construed to be of an estate tail, 
 100. 
 so, where the devise is to several and their heirs forever, 100. 
 express devise iu tail not enlarged to a fee by being subjected to a 
 charge, 100. 
 nor if the estate tail is given by implication, 101. 
 
Index. 619 
 
 ESTATE TAIL— (Continued.') 
 
 addition of " and assigns " to words of procreation will not enlarge a 
 devise in tail to a fee, 101. 
 nor that of the word "forever," 101. 
 a subsequent devise of all " except what is before excepted," to a per- 
 son who has in the same will received a devise in tail, will not 
 enlarge the estate tail to a fee, 101. 
 a devise to one and the heirs of his body lawfully begotten, and to 
 their heirs and assigns forever, remains an estate tail after the 
 death of the first taker, 101. 
 an estate to one in tail will not be reduced to a life estate by a pro- 
 vision in the devise that it shall go over on the decease of the 
 first taker not having lawful heirs, 102. 
 a gift to two, and the heirs of their bodies, not reduced to a life estate 
 by a restriction on the power of alienation and a provision for 
 survivorship, followed by devise over in case of the death of 
 both without issue, 102. 
 incidents, 
 
 tenant in tail may commit waste, 102. 
 estate tail is subject to dower, 102, 306. 
 except in Kentucky, 306. 
 and curtesy, 102. 
 subject to merger, 103. 
 
 is forfeitable for treason, but only for the life of the traitor, 103. 
 tenant in tail not compellable to keep down interest on incumbrances, 
 
 103. 
 but guardians of infant in tail are compellable, so far as rents and 
 profits go, 103. 1 
 
 tenant in tail may bar the entail, 103. 
 
 and cannot divest himself of the power to do so, 103. 
 nor can a testator in giving the estate deprive the devisee in tail 
 thereof, 103. 
 if out of possession, tenant still retains sufficient interest to enable him 
 
 to bar the tail, 103. 
 tenant in tail cannot alien for a period longer than his own life, 103. 
 nor can the estate be sold by judicial process for a longer time, 
 
 with efiect, except where otherwise provided by statute, 103. 
 such a statute exists in Massachusetts, 103. 
 and Pennsylvania, 103. 
 
 such statute will not apply to an estate tail ia remainder, 103. 
 tenant cannot mortgage unless empowered by statute, 103. 
 
620 Index. 
 
 ESTATE TAIL— {Continued.) 
 
 heir in tail not barred by conveyance and release of ancestor, 103. 
 or by bargain and sale in tail assets descending, 107. 
 or to carry out a contract for conveyance, 104. 
 and can avoid ancestor's conveyance without formal entry, 104. 
 descent of estate tail, 104. 
 common law rule obtains in United States in the absence of a statutory 
 
 change, 104. 
 unless expressly included, an estate tail is not within the provisions of 
 an intestate act, 104. 
 methods of barring entail, 
 
 (a) fine, 104. 
 
 (b) common recovery, 105. 
 prohibited in Virginia, 105. 
 
 said not to have been known in Ohio, 105. 
 
 established by declaratory act in Pennsylvania, 105. 
 
 may be suffered by tenant out of possession, 106. 
 
 tenant for life with vested remainder in tail general, after an 
 intermediate estate for life and various contingent estates tail, 
 can make a good tenant to the praecipe, 106. 
 
 a sheriff's vendee a good tenant to the praecipe, 106. 
 
 tenant to praecipe must have by right or wrong an estate of free- 
 hold, 106. 
 
 common recovery suffered by tenant after he has conveyed will 
 enure to the benefit of alienee, 106. 
 
 common recovery will cause judgments previously obtained against 
 tenant in tail to become liens on the fee, 106. 
 
 common recovery once suffered, can be avoided only on error ; it 
 cannot be attacked collaterally, 106. • 
 
 it may be impeached for fraud, 106. 
 
 or because defendant was not tenant of freehold, 106. 
 
 (c) by recovery against the estate of the creator of the entail, 106. 
 
 practice of bringing action for a real or supposed debt of the testa- 
 tor, 107. 
 
 (d) by writ of ad quod damnum, 
 invented in Virginia in 1734 . . . 107. 
 
 must have been sued out by tenant in tail in possession, 107. 
 discontinuance not worked by deed of bargain and sale of tenant in 
 
 tail, 107. 
 or by a covenant to warrant and defend the alienee against all 
 
 lawftil claims, 108. 
 
Index. 621 
 
 ESTATE TAIL— (Continued.) 
 
 or by a covenant to stand seized, although the deed be in form 
 one usually accompanying a livery of seizin, no such livery 
 being in fact made, 109. 
 or by a bargain and sale with warranty by the issue in tail before 
 the death of the tenant in tail, 109. 
 (e) statutory bar by deed, 
 statutory provisions for barring entail by deed made in most of the 
 United States, 109. 
 Maryland statute of 1782 . . . 109. 
 no bar by a devise or a mortgage, 109. 
 Massachusetts statute of 1791 . . . 109. 
 consideration necessary, 109. 
 • might be either good or valuable, 109. 
 
 entailed estate of wife barred by deed of husband and wife, 110. 
 entail barred by sale for debts, 110. 
 
 sale by guardian for debts of tenant in tail, he being 7ion compos 
 mentis, a good bar, 110. 
 Maine statute of 1821 ... 110. 
 
 has retroactive force, 110. 
 Pennsylvania statute of 1799 . . . 110. 
 deed must be recorded, 110. 
 
 but, if not, wiU pass the estate of the tenant during his own 
 life, 110. 
 terms of Act do not cover a devise, 110. 
 no bar by a devise to a charity, 110. 
 Ehode Island, 110. 
 
 bar may be by deed or devise, 110. 
 deed must be acknowledged before Court, 110. 
 Delaware, 110. 
 
 as to other States, 110. 
 deeds barring entails take place of common recovery, 111. 
 but have not the same immunity from attack. 111. 
 may be avoided by proof of infancy or insanity of grantor. 111. 
 will not let in claim of prior judgment against the land. 111. 
 destroy remainders depending on the entailed estate. 111. 
 statutory abolition and curtailment of estates tail, 
 
 Alabama — estate tail converted into fee-simple in hands of dowee or 
 
 devisee in tail. 111. 
 Arkansas — estate tail converted into estate for life in first taker, with 
 remainder in fee-simple, to the heir at common law, 113. 
 
622 Index. 
 
 ESTATE TAIL— (Continued.} 
 Illinois — the same, 113. 
 Vermont — the same, 113. 
 Colorado — the same, 113. 
 
 California — estates tail abolished, and declared fee-simple unless there 
 is a valid devise over, 112. 
 in case of such devise, it is declared valid even after a fee, 112. 
 Connecticut — estate tail converted into fee in the issue of first taker, 
 
 111. 
 Florida — entails prohibited. 111. 
 Georgia — entails abolished and turned into fees. 111. 
 
 a limitation, constructively in tail, becomes a life estate, with 
 remainder in fee to the children generally. 111. 
 Indiana — estates tail abolished and, in absence of a devise over, vest as 
 
 fees as do wee or devisee, 112. 
 Iowa — suspension of power of alienation beyond lives in being and 
 
 twenty-one years after, void, 112. 
 Kentucky — estates tail converted into fees-simple. 111. 
 Maryland — estate tail to descend, in case of intestacy, in fee-simple, 
 113. 
 collateral heirs not let in, 113. 
 Michigan — estates tail abolished — all estates of inheritance, fees con- 
 ditional or absolute, 113. • 
 Minnesota — the same, 113. 
 Wisconsin — the same, 113. 
 Mississippi — estates tail converted to fees-simple, 113. 
 Missouri — estate tail vests in tenant as life estate, with remainder to 
 
 children as tenants in common, 113. 
 New Hampshire — statute de donis Impliedly repealed by two statutes 
 
 of 1789 . . . 113. 
 New Jersey — by statutes of 1784 and -1786, estates tail become fees 
 after one descent, 112. 
 statute de donis repealed by Act of 1799 . . . 112. 
 Stat. 1820 — gift or devise in tail gives life estate to first taker, 
 with remainder in fee to heir, 113. 
 New York — Acts 1782 and 1786 convert entails into fees-simple, 112. 
 Act of 1786 applied to tails in remainder, 112. 
 
 and destroyed remainders on a failure of issue in tail, 112. 
 present law converts estate tail, if followed by no valid remainder, 
 into fee-simple, 112. 
 North Carolina — estates tail converted into fees-simple, and convey- 
 
Index. 623 
 
 ESTATE TAIL—(Contmued.) 
 
 ances by tenant in tail in possession since January 1, 1777, 
 
 confirmed, 114. 
 Ohio — estate tail converted into fee-simple in the issue of the dowee in 
 
 tail, 114. 
 Pennsylvania — Act of ISSS converts estate tail into fee-simple, 112. 
 
 Act applies only to after-created entails, 112. 
 Ehode Island — entails become fees-simple in hands of devisees in tail, 
 
 114. 
 Virginia — estate tail converted into fee-simple — Act of 1776 . . . 111. 
 
 ESTOPPEL, 
 
 of grantee of husband to deny seizin, does not preclude him from 
 showing the seizin not to have been a dowable one, 317. 
 
 of assignor of dower to deny dowable character of land in which dower 
 has been assigned, 403. 
 
 of widow to claim dower, 390, 
 
 ESTOVERS, 
 
 right of life tenant to, 205, 211. 
 right of dowress to, 407. 
 
 EVICTION, 
 
 widow entitled to indemnity when evicted of dower assigned according 
 to common right, 402. 
 so, when evicted of the dower assigned as a finality, under the 
 statutes of Michigan, Nebraska, New York, Oregon, and Wis- 
 consin, 402. 
 
 or of jointure or possession in lieu of dower, 356. 
 
 by statute, in Connecticut, Delaware, Kentucky, Maine, Massachusetts, 
 Michigan, Nebraska, New Jersey, Ohio, Oregon, Rhode Island, 
 South Carolina, Vermont, Virginia, West Virginia, Wisconsin, 
 358. 
 
 eviction of husband's estate by title paramount destroys dower, 332. 
 
 EVIDENCE, 
 
 extraneous evidence not admissible to show what estate a testator in- 
 tended to give by his will, 59. 
 but where will refers to another writing, it will be construed in 
 connection with it, 59. 
 
 presumption of wife's alienage, from removal with her husband to a 
 foreign country, may be rebutted, 303. 
 
624 Index. 
 
 EVIDENCE — ( Continued.) 
 
 parol evidence not admissible to give a deed the effect of a bar of 
 dower, 378. 
 
 EXCHANGE, 
 
 in case of exchange of land by the husband, widow must elect of 
 which piece of land she will be endowed, 346. 
 
 EXECUTION, 
 
 effect of, on dower, 336. , 
 
 before assignment, dower not seizable in, 392. 
 
 quarantine not subject to, 404. 
 
 effect of sale upon execution of estate tail, 103. 
 
 life estate liable to execution, 204. 
 
 so estate by the curtesy, 278. 
 
 but general tendency since Married Woman's Act to restrain levy 
 or sale until after wife's death, 278. 
 
 Act, with reference thereto, of Pennsylvania, 279.- 
 Massachusetts, 279. 
 
 EXECUTORS, 
 
 expression, " his executors and assigns," will not supply want of word 
 
 " heirs " in a deed, 54. 
 devise to, of power to sell does not vest an estate, 199. 
 where lands are assets in the hands of the executors for the payment 
 
 of decedent's debts, there is no dowable seizin in the heir while 
 
 they so remain, 321. 
 effect on dower, of redemption, by executor of husband, of a mortgage, 
 
 344. 
 Statute of Vermont upon subject, 344. 
 where devise to executors to sell will put the widow to her election 
 
 between dower and testamentary provision, 360. 
 widow acting as executrix held to have elected to take under the will, 
 
 365. 
 executor of widow cannot make an election for her, she having made 
 
 none in her lifetime, 367. 
 or retract one that she has made, 367. 
 
 EXECUTORY DEVISE, 
 
 estates pur autre vie, or for years, may be so settled by executory 
 devise as to serve many of the purposes of an entail, 95. 
 
Index. 625 
 
 EXECUTORY BEYISE,— (Continued.) 
 
 determination of estate of husband by executory devise will not defeat 
 dower, 307, 350. 
 authorities contrary to course of decision, 350. 
 
 FEE CONDITIONAL, 
 
 at common law, 93. 
 
 in South Carolina, 94. 
 
 in remainder, given in South Carolina by a devise to several, to be 
 equally divided for life, and after their death to their issue, 
 and in case of death of any without issue, his share to be di- 
 vided amongst the survivors, 199. 
 
 FEE-SIMPLE, 
 
 creation of, 58. 
 (a) by deed, 53. 
 word " heirs," required to create, 53. 
 
 rule applies to cases of reservation and execution, 53. 
 
 not to be supplied by " children," 53. 
 
 or " executors, administrators, and assigns," 54. 
 
 or " successors and assigns," 54. 
 
 or by words showing an intent that the estate granted shall en- 
 dure indefinitely, 54. 
 word " heirs," must appear in operative part of deed or grant, 54. 
 
 may appear in the habendum 54. 
 words in covenants or in warranty will not enlarge estate to a fee, 54, 
 
 57. 
 a warranty and habendum run together, construed as an habendum, 54. 
 a restriction allowed to enlarge an estate, 54. 
 words " bodUy heirs," held to pass fee, 54. 
 " heirs" may be supplied by a reference to another instrument connected 
 
 with the deed under consideration, 55. 
 exceptions to rule requiring the use of the word heirs, 55. 
 an executory agreement enforceable as a conveyance in equity, 55. 
 where estate is given to trustee in trust for one and his heirs, 55. 
 
 but see 55. 
 where an estate in fee is necessary for the purposes of a trust, 55. 
 a grant to a corporation, 56. 
 rule abrogated by statute in, 
 
 Alabama, 56. 
 
 Arkansas, 56. 
 
 California, 56. 
 53 2P 
 
626 Index. 
 
 FEE-SIMPLE — ( Continued.) 
 Colorado, 66. 
 Georgia, 56. 
 Illinois, 66. 
 Iowa, 56. 
 Kansas, 56. 
 Maryland, 56. 
 Nebraska, 56. 
 New York, 56. 
 Oregon, 56. 
 Tennessee, 56. 
 Texas, 56. 
 Virginia, 56. 
 Wisconsin, 56. 
 intent to pass fee allowed to govern in Massachusetts, 56. 
 fee may be granted with a reservation of a life estate, 56. 
 (6) by devise, 
 rule of necessity of use of word " heirs," 57. 
 
 rule greatly relaxed even at common law, in favor of testator's in- 
 tent, 57, 61. 
 devise without words of limitation enlarged to a fee by words equiva- 
 lent to a formal devise in fee, 59. 
 by word 
 
 " estate," 59. 
 
 " property," 59. 
 
 " right and title," 60. 
 
 " goods and effects," 60. 
 
 " my late purchase," 60. 
 
 "plantation," 60. 
 
 sed contra, 60. 
 " share," 60. 
 
 " profits, rents, and income," 60. 
 but not when given for limited only, 60. 
 " use forever," 60. 
 but not where the purpose of the use would not require any 
 
 title to support it, 60. 
 "absolutely," following a gift to a widow of the estate 
 allowed "under the intestate laws," where such laws allow 
 a life estate, 60. 
 " to have . . forever for free use of her and no other person, 
 excepting by her assignment and will," 61. 
 
Index. 627 
 
 FEE-SIMPLE — ( Continued.) 
 
 a devise to several to hold as tenants in common will give fee, 61. 
 but not a mere devise of a " tract," excluding a portion pre- 
 viously devised for life, 61. 
 nor a devise of " all the rest of my lands,'' 61. 
 since abolition of estate tail, words which would give formerly an 
 estate tail, may give fee-simple, 61. 
 intent to give fee inferred from the nature of the land devised — wild 
 land, 61. 
 or condition of the title of the land, 61. 
 preamble to will in connection with words in the devise itself, may 
 have the effect of enlarging an estate without words of inheri- 
 tance to a fee, 62. 
 cannot, however, standing alone, have that effect, 62. 
 what words in preamble in the connection aforesaid, may have 
 such effect, 
 
 " my estate," 63. 
 " all my temporal estate," 63. 
 " my worldly estate," 63. 
 " my worldly affairs," 63. 
 " worldly effects, both real and personal," 63. 
 " worldly goods," 63. 
 " temporal goods," 63. 
 evidence of intention to give fee, strengthened by a conclusion showing 
 that testator is of opinion that he has disposed of his entire 
 property, 63. 
 an intention to give a fee may be discovered by a comparison of the 
 
 devise with others in the same wUl, 63. 
 a devise in trust is enlarged to a fee where the object of the trust may 
 
 require for its execution a fee in the trustee, 64. 
 a devise may be enlarged to a fee by the control over the land given 
 to the devisee, 64. 
 where it is to be at his " absolute disposal," 64. 
 " entire disposal," even if followed by a devise over on the death of 
 
 the first taker, 64. 
 or " for her sole and absolute use and disposal," 64. 
 to be disposed of at the pleasure of the devisee, 64. 
 " that she may manage the estate as though she were entire and 
 
 sole owner," 64. 
 " to be freely enjoyed and possessed," 64. 
 but see contra, 64, 65. 
 
628 Index. 
 
 FEE-SIMPLE — ( Continued.) 
 
 devise to dispose of as the devisee may please during her life, and at 
 her death any disposition she may make to be strictly attended 
 to, will give a fee, 65. 
 a devise in general terms, with power of disposal, will give fee, 65. 
 a devise to a widow durante viduitate, with power to hold as held by 
 the testator, but " if she marries, no more than the law allows," 
 gives a fee determinable on marriage, 64. 
 a devise to do with as devisee sees proper before her death will not 
 give a fee, 64. 
 an express devise for life with a power of sale, will not give a fee, 
 65. 
 
 aliter in Virginia, 65. 
 even if power to reinvest proceeds without accountability is added, 
 65. 
 effect of devise over, 
 
 a devise without words of limitation not enlarged to a fee, by the fact 
 
 that it is a devise over after a life estate, 66. 
 but a devise over on death of first taker without issue, will give a fee, 66. 
 a, devise over on failure of heirs will imply a fee in the first taker, 66. 
 
 " son " given force of " heir '' in this connection, 66. 
 fee implied from a devise to several with a provision that the share 
 of any one dying without heirs should go to the survivors, 66. 
 but a devise over, if A. die without " heir or issue," held to give 
 an estate tail, 66. 
 devise with remainder over, in case of death of first taker within a 
 given age, will vest fee in him, 66. 
 even if the limitation over is not in fee, 66. 
 a fee is given by a devise to one on his arrival at certain age, 66. 
 even if it is uncertain who the devisee may prove to be, 66. 
 effect of a charge upon the devisee in respect to the devise, 
 
 a devise may be enlarged to a fee by a charge placed over the devisee 
 
 with respect to the devise, 67. 
 a mere injunction that the devisee pay a certain sum not a sufiicient 
 
 charge, 67. 
 the charge must be a personal one, and not on the land, 67. 
 a fee will not be implied from a general charge upon the testator's 
 estate, 67. 
 or from the devise of estate charged with testator's debts, 67. 
 or from a direction to pay funeral expenses and debts out of the 
 estate devised, 67. 
 
Index. 629 
 
 FEE-SIMPLE — ( Continued.) 
 
 or certain sums thereout, 67. 
 or a general direction to pay debts, 67. 
 the charge will not work an enlargement even where there is a per- 
 sonal charge on the devisee, if the testator has provided a fiind 
 to which the devisee may look for indemnity, 67. 
 the enlarging effect will not be prevented by the fact that the charee 
 is very small in amount, 67. 
 or that the time of its payment is postponed, 68. 
 or contingent, 68. 
 the charge may be to pay certain legacies, 68. 
 or an annuity, 68. 
 or to educate a minor, 68. 
 or to surrender a claim, 68. 
 charge upon one devisee with reference- to the whole of a piece of land 
 devised in portions to different devisees, may enlarge the estate 
 of all the devisees, 68. 
 a charge upon a devisee afterwards named as executor, will be held to 
 
 attach to him in his individual character, 68. 
 land devised generally with direction that its valuation be deducted 
 from share of devisee in the residuum, a fee will be given, 68. 
 but not where the devisee has received advancements to a greater 
 extent than the testator's debts, and a bequest of the surplus of 
 the advancement is made to him with a direction that he pay 
 testator's debts, 68. 
 devise of an estate expressly less than a fee, will not be enlarged to a 
 fee by a charge, 68, 198. 
 but see 68, 69. 
 devise in lieu of dower held not to give a fee, 69. 
 absence of a residuary clause may have the effect of enlarging a de- 
 vise, 69. 
 reduction of devise, 
 
 a devise in fee may be reduced if the testator's apparent intent requires 
 it, 69. 
 will not be by ambiguous words, 69. 
 
 not reduced by a devise to one in fee, and if he die, to another, 69. 
 or by words forbidding or restricting a sale, 69. 
 or by devise over on death of first taker without a son, 69. 
 or provision that profits be applied to a particular purpose, 
 
 69. 
 or that the land shall not be left to a particular person, 69. 
 53* 
 
6;50 Index. 
 
 FEE-SIMPLE — ( Continued.) 
 
 or by precatory words with reference to the disposition of the 
 
 land in any contingency, 69. 
 or by a provision for a reversion in case of death of devisee 
 
 without heirs, 69. 
 or by the addition of " for life," to a devise in fee, 69. 
 or by a devise over if the first taker die without heirs of his 
 
 body, 70. 
 or by the words, "for her sole and separate use during 
 
 her life," 70. 
 or by a provision that if devisee do not pay certain legacies 
 
 the executors may sell the land devised, 70. 
 or in a trust, by the addition " for her and her heirs' sole use 
 
 and benefit," 70. 
 or by the addition of a power of sale under certain circum- 
 stances, 70. 
 or by the previous limitation of the same land to the same 
 devisee for life, 70. 
 statutory regulations of devise, 
 
 in absence of apparent intent to the contrary, a general devise to be 
 interpreted as in fee, 
 Illinois, 71. 
 Mississippi, 71. 
 North Caroliua, 72. 
 South Carolina, 72. 
 Texas, 71. 
 fee-simple to pass where there are no words showing an intention to 
 give a less estate, and there is no devise over, 
 Missouri, 71. 
 New Jersey, 70. 
 Oregon, 71. 
 Pennsylvania, 71. 
 fee-simple to pass by a general devise, unless it appears by devise over 
 or otherwise, that less estate is intended, 
 Maryland, 71. 
 every devise of land to pass the; entire estate of the testator therein 
 which he could legally devise, unless contrary intent is shown, 
 Delaware, 71. 
 Kansas, 71. 
 Maine, 71. 
 Massachusetts, 71. 
 
Index. 631 
 
 FEE-SIMPLE — ( Continued.) 
 Michigan, 71. 
 Minnesota, 71. 
 New Hampshire, 71. 
 Ohio, 71. 
 Rhode Island, 71. 
 Vermont, 71. 
 Virginia, 71. 
 West Virginia, 71. 
 Wisconsin, 71. 
 Kentucky, 72. 
 a devise in express terms of all the testator's real property, or showing 
 intent to devise all his real property, construed to pass all the 
 realty he was entitled to devise. 
 New York, 72. 
 words of limitation unnecessary, 
 Alabama, 72. 
 Georgia, 72. 
 Indiana, 72. 
 Io^^'a, 72. 
 interpretation of devises made after passage of statutes, 
 statutes generally prospective, 72. 
 
 in South Carolina, held declaratory, and therefore retroactive, 72. 
 absence of "heirs and assigns" not evidence of intention to give 
 
 less than a fee, 73. 
 a doubt of intention \yill not cause a devise to be held less than 
 
 fee, 73. 
 limitation over, after the death of first taker, held nnt to show 
 
 intent to give life estate, 73. 
 word " use" 'will not show an intent that fee shall not pass, 73. 
 a devise to a widow durante viduitate, and in case of remarriage, 
 " only one-half of my property which goes to her support during 
 her natural life and the other half" over, held to give a life 
 estate only on remarriage, 73. 
 a devise to the devisee for her own purposes and property, to enable 
 
 her to support her children, not reduced to a life o>'t;ite, 73. 
 a devise to one and her children, the children taking their mother's 
 
 share, held not to give a fee to the mother, 73. 
 a devise with prohibition of sale or incumbrance by devisee, but 
 giving power of disposition by will to them, held not to give a 
 fee-simple, 73. 
 
632 Index. 
 
 FEE TAIL, 
 
 See Estate Tail. 
 
 FINES, 
 
 Stat, de donis, concerning, 93. 
 Stat. 32 Hen. VIII., c. 36 . . . 93. 
 existence in United States, 105. 
 tenant in tail has power to levy, 103. 
 defeat of curtesy by, 280. 
 bar of dower by, 370. 
 
 FIXTURES, ' 
 
 rights with reference to, as between tenant for life and remainder-man, 
 208. 
 
 FLORIDA, 
 
 all restrictions upon alien with reference to tenured realty removed, 516. 
 
 curtesy abolished by implication, 286. 
 
 statutory provisions as to deed to bar dower, 372. 
 
 mansion-house to be included within dower-land if it can be done 
 
 without injustice, 398. 
 quarantine extended until dower is assigned, 403. 
 estates tail prohibited, 111. 
 
 FORFEITURE, 
 
 estate tail liable to, for treason, 103. 
 
 but only during life of tenant in tail, 103. 
 of estate by the curtesy for felony or treason, 284. 
 
 by tortious conveyance of estate greater than curtesy, 280. 
 at common law by conveyance in fee by tenant for life, 212. 
 
 restriction of rule, 212. 
 entry or its equivalent necessary to enforce forfeiture for breach of 
 
 condition, 143. 
 by whom to be taken advantage of, 141. 
 relief against, in equity, 149. 
 enforcement of forfeiture of alien's land an act of sovereignty, and 
 
 cannot be exercised by a territory, 500. 
 of dower for waste, 407. 
 of life estate for waste, 211. 
 
 not enforceable by ejectment, but by action of waste only, 211. 
 
 Statute of Gloucester, 211. 
 
 FRAUD, 
 
 ante-nuptial deed in fraud of wife, 329. 
 
Index. 633 
 
 FRAUD —( Continued.) 
 
 ante-nuptial deed in fraud of husband, 284. 
 
 effect on dower of settuig aside deed in fraud of creditors, 382. 
 
 fraud iQ ante-nuptial contract, 355. 
 
 fi-aud in assignment of dower, 402. 
 
 fraud in preventing widow from filing a dissent to will, 367. 
 
 disproportionate settlement in lieu of dower, evidence of fraud, 381. 
 
 GEORGIA, 
 
 statutory regulation of tenure of realty by alien, 516. 
 
 curtesy abolished by implication, 286. 
 
 dower confined to realty of which husband died seized or possessed, or 
 
 which came to the husband in right of his wife, although 
 
 aliened during coverture, 299. 
 dower postponed to purchase-money mortgage, 327. 
 judgment, even if obtained before marriage, will not affect dower, 336. 
 statutory regulation of jointure and settlement, 356. 
 presumption, where provision is made by will, that it is in addition to 
 
 dower, 363. 
 statute as to bar of dower by adultery and elopement, 384. 
 divorce a vinculo, accompanied by decree for permanent alimony, bars 
 
 to dower, 387. 
 special statute of limitation with reference to dower, 389. 
 statutory provision for assignment of dower against common right, 397. 
 quarantine extended until dower is assigned, 403. 
 widow having surrendered quarantine before assignment of dower, 
 
 may retake possession, 405. 
 by statute, word " heir " not necessary in a deed to pass a fee, 56. 
 words of inheritance unnecessary to give a fee by a devise, 72. 
 estate tail abolished, and converted into fees. 111. 
 limitation constructively in tail, becomes a life estate with remainder 
 
 in fee to the children generally, 111. 
 
 GROWING CROPS, 
 
 widow entitled to dower in, 306. 
 
 although included in inventory of husband's personalty, 306. 
 
 but not where constructive severance has taken place, as by an assign- 
 ment by the husband, 306. 
 
 carried by assignment in dower of the lands upon which they are, 402. 
 
 where assets for debts, do not pass to the widow by virtue of her right 
 of quarantine, 404. 
 
 tenant for life entitled to those growing at the time of his death, 204. 
 
63i Index. 
 
 GUARDIAN, 
 
 of infant tenant in tail bound to keep down incumbrances, 103. 
 seizin of guardian of infant wife sufficient to support curtesy in her 
 
 husband, 265. 
 consent of, necessary to an endowment ad ostium eoclesioe by an infant 
 
 husband, 296. 
 effect of assent of guardian of infant to an ante-nuptial agreement in 
 bar of her dower, 355. 
 statutory regulation of question, 356. 
 joinder of wife in deed of guardian of insane husband, 376. 
 guardian of lunatic wife has no power ex mero officio to unite in hus- 
 band's deed so as to bar dower, 377. 
 semhle, he may do so under the direction of the proper court, 377. 
 statutes to that effect in Illinois, Massachusetts, Michigan, Mis- 
 souri, Ohio, Virgiuia, West Virginia, and Wisconsin, 377. 
 
 HABENDUM, 
 
 office of, 54. 
 
 may enlarge the estate named in premises, 54. 
 
 cannot give a legal estate where an equitable one is given in premises, 54. 
 
 will not enlarge an expressly granted estate tail, 96. 
 
 HEIR, 
 
 not bound by bargain and sale of tenant in tail without assets descend- 
 ing, 107. 
 
 entry of, not barred by bargain and sale of tenant in tail, 107. 
 
 not bound by warranty of tenant in tail, although assets descend, 108. 
 
 should be mentioned in condition in order to be bound thereby, 137. 
 
 performance of condition by, 140. 
 
 need not be expressly named to entitle him to take advantage of 
 breach of condition, 141. 
 
 in States where lands are assets for debts, the heir has no such seizin 
 as will sustain dower while the lands remain in the hands of 
 the executor or administrator for the purpose of payment of 
 debts, 321. 
 
 release by widow to heir not in possession not champertous, 393. 
 
 duty of, to assign dower, 393. 
 
 value of land, how taken for assignment of dower as against heir, 398. 
 
 effect of extinguishment by, of mortgage which is paramount to dower, 
 342. 
 statute of Vermont, 344. 
 
 effect of devise over on failure of heir, 66. 
 
Index, 635 
 
 " HEIRS," 
 
 necessity of use of word in grant of fee-simple, 53 et seq. 
 
 in grant of fee tail, 96. 
 in furtherance of testator's intention, read " sons " or " children," 197. 
 
 " HEIRS OF THE BODY," 
 
 proper words to create estate tail, 95. 
 expressions in devise- held equivalent to, 97. 
 
 ILLINOIS, 
 
 all restrictions upon tenure of realty by aliens removed, 516. 
 
 no curtesy in separate estate of wife of which she has the power of 
 disposal, 269. 
 
 curtesy abolished, 286. 
 
 right of dower conferred upon aliens, 303. 
 
 dower given in equitable estate by statute, 312. 
 
 dower given in equity of redemption by statute, 315. 
 
 dower postponed to purchase-money mortgage, 327. 
 
 widow dowable in surplus after mortgage superior to her right, 329. 
 
 eviction of husband's estate by fraud or collusion no bar to dower, 332. 
 
 conveyance by husband without assent of wife in due form no bar to 
 dower, 333. 
 
 exchange — statute with reference to dower rights in case of, 346. 
 
 statutory regulation of jointure and settlement, 356. 
 
 presumption, by statute, that provision for widow in will of husband 
 is in lieu of dower, 362. 
 
 widow's election between husband's will and dower to be made within 
 one year from probate of will, 366. 
 
 statutory bar of dower by joinder of wife in husband's deed, 371, 372. 
 
 bar of dower of insane wife, 377. 
 
 statute as to bar of dower by adultery and elopement, 384. 
 
 divorce a vinculo for fault of wife, a bar to dower, 386. 
 
 Statute of Limitations applies in case of dower, 389. 
 
 duty of assignment of dower imposed by statute on heir, 394. 
 
 quarantine upheld until dower is assigned, 403. 
 
 by statute, a deed without the word " heirs " may pass a fee, 56. 
 
 in absence of apparent intent to contrary, general devise to be inter- 
 preted as in fee, 71. 
 
 estate tail converted into estate for life in the first taker, with 
 remainder in fee to the heir at common law, 113. 
 
 IMPLICATION, 
 
 of intent to give fee from nature of land devised, 61. 
 
636 Index. 
 
 IMPUCATIOHf— (Continued.) 
 
 from condition of title, 61. 
 from comparison of devises, 63. 
 from requirements of a trust, 64. 
 from control of land given to devisee, 64. 
 from devise over, 65. 
 
 from charge placed upon devisee witli reference to land devised, 67. 
 from absence of residuary clause, 69. 
 of intent to give an estate tail from a devise over or reversion on 
 indefinite failure of issue, 98. 
 will not enlarge an expressly granted estate tail, 100. 
 
 IMPKOVEMENTS, 
 
 made by tenant for life become part of inheritance, 207. 
 tenant by the curtesy not entitled to allowance for, 277. 
 in assignment of dower widow may have advantage of improvements 
 made by the heir, 398. 
 aliter in Kentucky, 401. 
 but may not have advantage of improvements made by the alienee 
 
 of the husband, 399. 
 may, however, share in the general improvement of the neighbor- 
 hood not made by the alienee, 899. 
 aliter in New York, 399. 
 
 in Virginia before the adoption of the code, 400. 
 in Minnesota, 400. 
 permanent improvements made after alienation excluded, by 
 statute, from valuation of dower in Kentucky, Minnesota, Michi- 
 gan, Nebraska, Ohio, Oregon, South Carolina, Wisconsin, 401. 
 
 INCUMBRANCES, 
 
 tenant in tail not compellable to keep down the interest upon, 103. 
 
 but aliter as to guardian of infant tenant in tail, 103. 
 life tenant must keep down interest upon, 209. ■ 
 
 but need not contribute to extinction of, 209. 
 
 if not established until after his death, his estate not answerable 
 for either interest or principal, 209. 
 dower inchoate held an incumbrance, 301. 
 will not prevent a jointure from being good, 351. 
 in taking dower against common right, widow takes subject to, 398. 
 
 INDIANA, 
 
 statutory regulation of tenure of realty by alien, 516. 
 
Index. 637 
 
 INDIANA,— (Conimwed) ♦ 
 
 curtesy initiate abolished, 287. 
 
 curtesy forfeited by adultery of the husband, 281. 
 
 statutory regulation of curtesy, 287. 
 
 dower abolished, 299. 
 
 statutory estate in lieu of dower, 300. 
 
 divorce a vineiilo a bar to dower, 386. 
 
 words of inheritance unnecessary in a devise to pass a fee, 72. 
 
 estates tail abolished ; and where an estate tail is created without a 
 devise or limitation over it will vest in the first taker as a fee, 
 112. 
 INFANT, 
 
 endowment by, 296. 
 
 sale by parole by, before marriage, effect on dower, 323. 
 
 how dower of infant wife is barred, 376. 
 
 assignment of dower by guardian of infant heir, 394. 
 
 deed to bar an entail executed by, set aside on proof of infancy. 111. 
 
 common recovery suffered by, not avoided on proof of infancy. 111. 
 
 INSURANCE, 
 
 life tenant not bound to insure, 211. 
 
 right of life tenant as remainder-man to have insurance money applied 
 
 to repairs, 211. 
 expense of, not to be deducted from value of land in assigning dower, 
 
 396. 
 curtesy an insurable interest, 279. 
 
 IOWA, 
 
 statutory regulation of tenure of realty by alien, 516. 
 
 curtesy abolished, 286. 
 
 right of dower conferred upon aliens except as against purchaser from 
 husband, 304. 
 
 a sale on a judgment against the husband bars dower, 337. 
 
 widow's distributive share of mortgaged property liable for its pro- 
 portion of husband's debts, 344. 
 
 failure to elect construed as retention of dower, 366. 
 
 joinder by wife in covenant of husband's deed sufficient to bar her 
 dower, 371. 
 
 Statute of West. 2, c. 34, not in force, 385. 
 
 Statute of Limitations applies to cases of dower, 389. 
 
 mansion-house to be included in dower if it can be done without in- 
 justice, 398. 
 54 
 
638 Index. 
 
 IOWA— (Conimweci.) 
 
 by statute, word " heirs" not necessary in a deed to pass a fee, 66. 
 
 in a devise, wo^ds of limitation unnecessary to give a fee, 72. 
 
 suspension of power of alienation beyond lives in being and twenty-one 
 years after, declared void, 112. 
 ISSUE, 
 
 in a will, held equivalent to heirs of the body, 97. 
 
 devise over on indefinite failure of, 98. 
 on failure of issue of first taker, 68. 
 
 birth of, necessary to vest estate by the curtesy, 258, 260. 
 
 in certain States, birth of issue no longer necessary, 261. 
 
 JOINT TENANCY, 
 
 See Estate in Joint Tenancy. 
 
 JOINTURE, 
 
 bar of dower by, 350 et seq. 
 See DowEE. 
 
 JUDGMENT, 
 
 estate by the curtesy bound by judgment against husband, 278. 
 if obtained against husband after marriage will not eifect dower, 336. 
 aliter in Pennsylvania, 336. 
 
 KANSAS, 
 
 statutory regulation of tenure of realty by alien, 517. 
 
 curtesy abolished, 286. 
 
 dower abolished, 299. 
 
 by statute, word " heirs " not necessary in a deed to pass a fee, 56. 
 
 devise to be interpreted as giving the entire devisable estate of the 
 
 testator in the subject thereof, unless a contrary intent appear, 
 
 71. 
 
 KENTUCKY, 
 
 where the person on whom descent would be cast were he a citizen is 
 disqualified by alienage, the estate passes to the State, 503. 
 
 statutes regulating tenure of land by aliens, 517. 
 
 curtesy initiate abolished, 287. 
 
 control of all the income of an estate not equivalent to actual seizin for 
 the purposes of curtesy, 265. 
 
 statutory regulation of curtesy, 287. 
 
 dower limited to estates in fee-simple, 306. 
 
 eviction of husband's estate by fraud or collusion, no bar to dower, 332. 
 
Index. 639 
 
 KENTUCKY — ( Continued.) 
 
 statutory regulation of jointure and settlement, 357, 358. 
 
 widow's election between the will of her husband and dower to be 
 made' within one year from probate of will, 366. 
 
 statute as to bar of dower by adultery and elopement, 384. 
 
 Statute of Limitations applies in cases of dower, 389. 
 
 statutory provision for assignment of dower against common right, 397. 
 
 as to what time the value of land is to be taken for purpose of assign- 
 ing of dower, 401. 
 
 collusive assignment not binding on infant heir, 402. 
 
 quarantine extended to one year, 403. 
 
 devise to be held to pass the entire devisable estate of testator in the 
 subject thereof, unless contrary intent appear, 72. 
 
 devise in fee, followed by a devise over on death of first taker without 
 lawful issue, is held to give defeasible fee, and not an estate tail, 99. 
 
 estate tail not subject to dower, 306. 
 
 estate tail converted into fee-simple. 111. 
 
 LAND WARRANTS, 
 entailable, 95. 
 as to dower in, 310. 
 
 LEX LOCI REI SITiE, 
 dower governed by, 408. 
 
 LIEN, 
 
 See Mechanic's Lien, Vendor's Lien. 
 
 LOUISIANA, 
 
 estate tail not recognized, 94. 
 
 LUNATIC, 
 
 marriage cannot be contracted by or with, 260, 302. 
 
 how dower of insane wife is to be barred, 377. 
 
 how dower is to be bound when husband is insane, 376. 
 
 MAINE, 
 
 no restrictions upon tenure of realty by alien, 517. 
 
 statutory regulation of curtesy, 289. 
 
 no dower in wild lands, 304. 
 
 seizin to sustain dower must be legal, 312. 
 
 dower given in equity of redemption by statute, 315. 
 
 statutory regulation of jointure and settlement, 357, 358. 
 
 presumption by statute that devise or bequest is in lieu of dower, 362. 
 
640 Index. 
 
 MAINE, — ( Continued.) 
 
 statutory bar of dower by joinder of wife in husband's deed, 371. 
 
 infant feme covert may bar dower, 376. 
 
 statute of West. 2, c. 34, not in force, 385. 
 
 dower given immediately on divorce, when for certain causes, 387. 
 
 Statute of Limitations applies in cases of dower, 389. 
 
 statute with reference to assignment of dower where it cannot be by 
 
 metes and bounds, 396. 
 quarantine extended to ninety days, 403. 
 damages for detention of dower given by statute, 406. 
 demand other than bringing suit necessary before action, 406. 
 dowress liable to forfeit estate for waste, 407. 
 devise to pass the entire devisable estate of testator in the subject 
 
 thereof, unless contrary intent appear, 71. 
 bar of estate tail by statute of 1821, 110. 
 
 MAREIAGE, 
 
 condition in general restraint of, void, 128. 
 
 partial restraint, 128. 
 
 condition restraining remarriage of widow, 129. 
 
 to give curtesy or dower legal marriage necessary, 260, 301. 
 
 cannot be contracted by or with a lunatic or idiot, 260, 302. 
 
 of widow does not deprive her of her quarantine, 405. 
 
 MAEYLAND, 
 
 statute 11 and 12 Wm. III., enabling natural-born subjects to take 
 
 land by descent, notwithstanding alienage of parents, in force, 
 
 507. 
 statutes regulating tenure of land by alien, 517. 
 husband forfeits curtesy by bigamy, 281. 
 dower given in equitable estates by statute, 312. 
 a judicial sale of husband's land bars dower where wife is a party to 
 
 the proceedings, 337. 
 statutory provisions for sale of decedent's land free of dower, 349. 
 statutory regulation of jointure and settlement, 358. 
 presumption that provision in husband's will is in lieu of dower, but 
 
 where provision is mixed, wife need elect only between the 
 
 devised realty and dower, 363. 
 election to be made within six months of grant of- letters on will, 366. 
 statutory bar of dower by joinder of wife on husband's deed, 371, 372. 
 separate examination of wife not necessary, 372. 
 infant feme covert may bar dower, 376. 
 
Index. 611 
 
 MAEYLAND,— ( Continued.) 
 
 bigamy a bar to dower, 386. 
 
 dowress liable to damage for waste, 407. 
 
 by statute, a deed without the word " heirs " may pass a fee, 56. 
 
 fee-simple to pass by a general devise, unless it appears, by devise over 
 or otherwise, that less estate was intended, 71. 
 
 statute of 1782 for bar of entail, 109. 
 
 estate tail to descend in case of intestacy as in fee-simple, but exclud- 
 ing collateral heirs, 113. 
 
 MASSACHUSETTS, 
 
 alien could acquire title to land as against the State, 502. , 
 
 Act enabling alien to take, hold, convey, and transmit realty, 517. 
 to uphold curtesy, held wife's seizin must be in deed, except in case of 
 
 waste lands, 268, 264.* 
 statutory regulation of curtesy, 287. 
 curtesy expressly saved in Married Woman's Act, 287. 
 entry for breach of condition unnecessary to make forfeiture, 144. 
 no dower in wild lands, 304. 
 
 dower given in equity of redemption by statute, 315. 
 dower given in estate for one hundred years and more when fifty years 
 
 of the term remain unexpired, 307. 
 statutory regulation of jointure and settlement, 357, 358. 
 presumption by statute that provision by husband's will is in lieu of 
 
 dower, 362. 
 statutory bar of dower by joinder of wife in husband's deed, 371. 
 bar of dower of insane wife, 377. 
 statute West. 2, c. 34, not in force, 385. 
 
 dower given immediately on divorce when for certain causes, 387. 
 special Statute of Limitation with reference to dower, 389. 
 duty of assigning dower imposed by statute upon heir, 394. 
 statute with reference to assignment of dower when it cannot be by 
 
 metes and bounds, 396. 
 common law duration of quarantine established by statute, 403. 
 damages given by statute for detention of dower, 406. 
 dower forfeited by waste, 407. 
 devise to pass the entire devisable interest of the testator in the subject 
 
 thereof, in the absence of apparent contrary intent, 71. 
 estates tail recognized by the fundamentals, 94. 
 statute with reference to sale of land for debts of tenant in tail, 103. 
 entail barred by deed under statute of 1791 . . . 109. 
 54* 2Q 
 
642 Index. 
 
 MASSACHUSETTS— ( Cbnimwerf.) 
 
 estate tail of wife by deed of husband and wife, 110. 
 estate tail barred by sale for debts, 110. 
 
 MECHANIC'S LIEN, 
 
 postponed to dower, 339. 
 
 MERGER, 
 
 estate tail not subject to, 103. 
 
 effect on dower of merger of legal and equitable estates in Maine and 
 New Hampshire, 312. 
 
 MICHIGAN, 
 
 aliens, bona fide residents of State, given same rights in realty as 
 
 citizens, 517. 
 birth of issue not a prerequisite to ^n estate by the curtesy, 287. 
 statutory regulation of curtesy, 287. 
 curtesy abolished by implication, 287. 
 nominal conditions may be disregarded, 136. 
 dower in land aliened by husband not given to a widoAv non-resident 
 
 in the State at time of husband's d^eath, 303. 
 right of dower conferred upon aliens, 304. 
 dower given in equity of redemption by statute, 315. 
 dower given in lands which elsewhere would be affected by a resulting 
 
 trust, 321. 
 dower postponed to purchase-money mortgage, 327. 
 widow dowable, by statute, in surplus after a mortgage superior to her 
 
 right, 329. 
 contribution of dower to mortgage, — statute as to, 344. 
 partition, effect of, on wife's dower, — statute as to, 346. 
 exchange, dower rights in case of,— statute as to, 346. 
 statutory regulation of jointure and settlement, 357, 358. 
 presumption, by statute, that devise or bequest to widow is in lieu of 
 
 dower, 362. 
 widow must elect between will and dower within one year from hus- 
 band's death, 366. 
 statutory bar of dower by joinder of wife in husband's deed, 371, 372. 
 dower may be barred by separate deed of wife, if made to alienee of 
 
 husband, 375. 
 bar of dower of insane wife, 377. 
 
 dower given immediately on divorce when for certain causes, 388. 
 widow has right of entry before assignment of dower, 392. 
 
Index. 643 
 
 MICHIGAN,— ( Continued.) 
 
 dower may be assigned by guardian of spendthrift heir, 394. 
 
 statute with reference to assignment of dower where it cannot be by 
 
 metes and bounds, 396. 
 as of what time value of land is to be taken for purpose of assigning 
 
 dower, 401. 
 collusive assignment not binding on minor heir, 402. 
 statutory provision for assignment as a finality, 402. 
 quarantine extended to one year, 403. 
 damages for detention of dower given by statute, 406. 
 dowress liable to damages for waste, 406. 
 devise to pass entire devisable estate of testator in the subject thereof, 
 
 unless contrary intent appear, 71. 
 estates tail abolished, 113. 
 
 MINES, 
 
 right of life tenant to work, 206. 
 dower in, 305, 306. 
 
 MINNESOTA, 
 
 alien given same rights in realty as citizen, 517. 
 
 birth of issue not a prerequisite to estate by curtesy, 261. 
 
 statutory regulation of curtesy, 288. 
 
 curtesy abolished, 286. 
 
 dower abolished, 299. 
 
 devise to pass the entire devisable estate of the testator in the subject 
 
 thereof, in the absence of apparent contrary intent, 71. 
 estates tail abolished, 113. 
 
 MISSISSIPPI, 
 
 no restriction upon tenure of realty by an alien, 517. 
 
 curtesy subject to wife's debts, 280. 
 
 curtesy abolished, 286. 
 
 dower abolished, 299. 
 
 before abolition, dower given in estates in joint tenancy, 309. 
 
 in absence of apparent eefatrary intent, a general devise to be held in 
 
 fee, 71. 
 statute de donis never in force, 94. 
 limitations in tail converted to fee-simple, 113. 
 
 illSSOUEI, 
 
 native may take by inheritance through alien parent, although the 
 
 parent is living, 508. 
 statutes regulating tenure of land by aliens, 517. 
 
C44 Index. 
 
 MISSOURI— ( Continued.) 
 
 dower given in lease holds for twenty years or more, 307. 
 
 eviction of husband's estate by fraud or collusion no bar to dower, 332. 
 
 conveyance by husband without wife's assent in due form no bar to 
 
 dower, 333. 
 statutory regulation of jointure and settlement, 357. 
 presumption that provision by will is in lieu of dower, confined to 
 
 cases in which provision is of realty, 362. 
 widow's election between dower and the will to be made within one 
 
 year from probate of will, 366. 
 statutory bar of dower by joinder of wife in husband's deed, 371, 372. 
 bar of dower of insane wife, 377. 
 divorce for fault of wife bars dower, 386. 
 statute with reference to assignment of dower where it cannot be by 
 
 metes and bounds, 396. 
 collusive assignment not binding on minor heir, 402. 
 quarantine extended until dower is assigned, 403. 
 damage for detention of dower given by statute, 406. 
 fee-simple to pass by a devise when there are no words showing intent 
 
 .to give less estate, and there is no devise over, 71. 
 limitation in tail becomes life estate in first taker, with remainder to 
 
 children as tenants in common 113. 
 
 MORTGAGE, 
 
 effect of, on dower, 324, 326, 237, 335. 
 
 tenant in tail cannot mortgage entailed land unless authorized by a 
 
 statute, 103. 
 tenant for life who allows land to be sold by virtue of judgment and 
 
 execution upon, is liable to remainder-man, 209. 
 
 MORTGAGEE, 
 
 title as not sufficient to sustain dower, 322. 
 
 MUNICIPAL IMPROVEMENTS, 
 
 distinction between liability of life tenant for, and for ordinary taxes, 
 210. 
 
 NEBRASKA, 
 
 aliens given same rights in realty as citizens, 517. 
 
 birth of issue not a prerequisite to estate by curtesy, 261. 
 
 curtesy not barred by divorce when for adultery of wife, 282. 
 
 statutory regulation of curtesy, 287. 
 
 right of dower conferred upon aliens, 304. 
 
Index. 645 
 
 NEBRASK A,— ( Continued.) 
 
 dower given in equity of redemption by statute, 315. 
 
 dower postponed to purchase-money mortgage, 327. 
 
 widow dowable by statute in surplus after mortgage superior to her 
 
 right, 329. 
 statute as to liability of dower for contribution to mortgage, 344. 
 exchange — dower rights in case of, statute as to, 346. 
 statutory regulation of jointure and settlement, 357, 358. 
 presumption by statute that provision by husband's will is in lieu of 
 
 dower, 362. 
 widow must elect between will and dower within one year from death 
 
 of husband, 366. 
 statutory bar of dower by joinder of wife in husband's deed, 371, 372. 
 wife may bar dower by her separate deed, 371. 
 dower given immediately upon divorce when for certain causes, 388. 
 statutes with reference to assignment where it cannot be by metes and 
 
 bounds, 396. 
 value of land, as of what time to be taken for purpose of assigning 
 
 dower, 401. 
 collusive assignment not binding on minor heir, 402. 
 provision for assignment as a finality, 402. 
 quarantine extended to one year, 403. 
 damages for detention of dower given by statute, 406. 
 dowress liable to damage for waste, 407. 
 by statute, a deed without the word " heirs " will pass a fee, 56. 
 
 NEW HAMPSHIEE, 
 
 resident alien given same rights as to realty as citizen, 518. 
 
 statutory regulation of curtesy, 290. 
 
 no dower in wild lands, 304. 
 
 seizin to sustain dower must be legal, 312. 
 
 statutory regulation of jointure and settlement, 358. 
 
 merely signing and sealing husband's deed sufficiently manifest intent 
 
 to bar dower, 371. 
 divorce a vinculo a bar to dower, 386. 
 demand for assignment of dower must be in writing, 395. 
 statute with reference to assignment of dower where it cannot be by 
 
 metes and bounds, 396. 
 common law duration of quarantine recognized by statute, 403. 
 damages for detention of dower given by statute, 406. 
 dowress liable to damages for waste, 407. . 
 
646 Index. 
 
 NEW HAMPSHIRE— (Cowimwed) 
 
 devise to pass entire devisable estate of testator in the subject thereof, 
 
 unless contrary intent appear, 71. 
 statute de donis repealed, 113. 
 
 NEW JERSEY, 
 
 alien friends given same. rights in realty as citizens, 518. 
 
 curtesy initiate abolished, 288. 
 
 statutory regulation of curtesy, 288. 
 
 right of dower conferred upon aliens, 304. 
 
 eviction of husband's estate by fraud or collusion no bar to dower, 332. 
 
 statutory regulation of jointure and settlement, 357, 358. 
 
 presumption that provision in will is in bar of dower, is confined to 
 
 cases where the provision is of realty, 362. 
 widow's election between will and dower to be made in six months 
 
 from probate of will, 366. 
 statutory bar of dower by joinder of wife in husband's deed, 371, 372. 
 wife may release dower to her husband when living apart from him by 
 
 virtue of a decree, 379. 
 di\5orce a vinculo a bar to dower, 386. 
 
 collusive assignment of dower not binding on minor heir, 402. 
 quarantine extended until dower is assigned, 403. 
 damages for detention of dower given by statute, 406. 
 fee-simple will pass by a devise when there are no words showing 
 
 intent to give a less estate, and there is no devise over, 70. 
 by statutes of 1784 and 1786, estate tail made a fee after one descent, 
 
 112. 
 by statute 1799, repeal statute de donis, 112. 
 by statute of 1820, gift or devise in tail gives life estate to first taker, 
 
 with remainder in fee to heirs, 113. 
 
 NEW YORK, 
 
 statute of 1830 of same efiect as Statute 11 and 12 Wm. TIL, en- 
 abling natives to take by descent, notwithstanding alienage 
 of parents, 508. 
 
 statutes regulating tenure of lands by aliens, 518. 
 
 curtesy initiate abolished, 289. 
 
 statutory regulation of curtesy, 288. 
 
 entry for breach of condition unnecessary to work a forfeiture, 144. 
 
 demand of rent, where its payment is a condition, not necessary before 
 bringing ejectment, 145. 
 
 acts afiecting dower of alien widow, 303. 
 
Index. 647 
 
 NEW YOBK— (Continued.) 
 
 dower given in equity of redemption by statute, 315. 
 
 dower postponed to purchase-money mortgage, 327. 
 
 widow dowable, by statute, of surplus, after mortgage, superior to her 
 right, 329. 
 
 exchange — dower rights in case of, — statute as to, 346. 
 
 statutory regulation of jointure and settlement, 357. 
 
 presumption, by statute, that provision by husband's will is in lieu of 
 dower, 362. 
 
 widow's election between provision and dower to be made within one 
 year from husband's death, 366. 
 
 husband's misconduct will not prevent forfeiture of dower by subse- 
 quent adultery of wife, 385. 
 
 Statute of Westminster II., c. 34, not in force since 1830 . . . 386. 
 
 divorce a vinculo for fault of wife a bar to dower, 386. 
 
 special Statute of Limitation with reference to dower, 389. 
 
 widow's unassigned dower liable for her debts generally in equity, 392. 
 
 no demand of the widow necessary before proceeding to have dower 
 adversely assigned, 395. 
 
 collusive assignment not binding on minor heir, 402. 
 
 statutory provision for assignment as a finality, 402. 
 
 the common law term of quarantine recognized by statute, 403. 
 
 damages for detention of dower given by statute, 406. 
 
 by statute, deed without the word " heirs " may pass a fee, 56. 
 
 a devise showing intent to devise all testator's realty to be held to pass 
 • all his devisable interest, 72. 
 
 estates tail converted into fees-simple by Acts 1782 and 1786 . . . 112. 
 
 Act 1786 applied to tails in remainder, 112. 
 
 estate tail followed by no valid remainder becomes fee-simple, 112. 
 
 NORTH CAROLINA, 
 
 by Act of 1801, § 2, native could take by inheritance through his alien 
 
 parent, although the parent is living, 508. 
 on death of an alien, without office found in his lifetime, leaving a 
 
 native-born child, there will be no escheat, 510. 
 restrictions upon tenure of land by alien removed, 521. 
 statutory regulation of curtesy, 290. 
 dower postponed to purchase-money mortgage, 327. 
 widow's election between testamentary provision and dower to be made 
 
 within six months from probate, 366. , 
 
 statutory bar of dower by joinder of wife in husband's deed, 371, 372. 
 
648 Index. 
 
 NORTH CAROLINA— (Cojiimwed) 
 
 statute as to bar of dower by adultery and elopement, 384. 
 divorce a vinculo for fault of wife a bar to dower, 386. 
 in absence of apparent contrary intent, a devise to be held as in fee, 72. 
 estates tail converted into fees-simple, 114. 
 
 OHIO, 
 
 statute regulating rights of alien in realty, 521. 
 
 birth of issue not necessary for estate by the curtesy, 288. 
 
 statutory regulation of curtesy, 288. 
 
 dower given in a remainder, 320. 
 
 eviction of husband's estate by fraud or collusion no bar to dower, 332. 
 
 distinction between exercise of eminent domain and dedication by 
 
 owner to public use ignored as affecting dower, 332. 
 statutory regulation of jointure and settlement, 357, 358. 
 presumption, by statute, that provision in husband's will for widow is 
 
 in lieu of dower, 362. 
 widow's election between dower and provision to be made within one 
 
 year from the issue of a citation to elect, 366. 
 failure to elect construed as retention of dower, 367. 
 bar of dower of insane wife, 377. 
 
 statute as to bar of dower by elopement and adultery, 384. 
 divorce a vinculo for fault of the wife a bar to dower, 386. 
 duty of assigning dower imposed by statute upon heir, 394. 
 statutes with reference to assignment of dower where it cannot be by 
 
 metes and bounds, 396. 
 as of what time value of land is to be taken in assigning dower, 401. 
 collusive assignment not binding 'on minor heir, 402. 
 quarantine extended to one year, 403. 
 dowress liable to forfeit her estate for waste, 407. 
 devise to pass entire devisable estate of the testator, unless contrary 
 
 ^intent appear, 71. 
 common recoveries unknown, 105. 
 estate tail converted to fee-simple in issue of donee in tail, 114. 
 
 OREGON, 
 
 alien given same property rights as citizen, 521. 
 birth of issue not a prerequisite to estate by curtesy, 261. 
 curtesy expressly saved in Married Woman's Act, 287. 
 right of dower conferred upon aliens, 304. 
 (5 dower given in equity of redemption by statute, 318. 
 dower postponed to purchase-money mortgage, 327. 
 
Index. 649 
 
 OREGON,— ( Continued.) 
 
 widow dowable, by statute, in surplus after mortgage superior to her 
 right, 329. 
 
 exchange — dower rights in case of — statute as to, 346. 
 
 statutory regulation of jointure and settlement, 357, 358. 
 
 presumption, by statute, that a testamentary provision by husband for 
 wife is in lieu of dower, 362. 
 
 widow's election between will and dower must be made within one year 
 from death of husband, 366. 
 
 statutory bar of dower by joinder of wife in husband's deed, 371, 372. 
 
 statute with reference to assignment of dower where it cannot be by 
 metes and bounds, 396. 
 
 value of land, as of what time to be taken, for the purpose of assign- 
 ing dower, 401. 
 
 collusive assignment not binding upon infant heir, 402. 
 
 statutory provision for assignment as a finality, 402. 
 
 quarantine extended to one year, 403. 
 
 damages for detention of dower given by statute, 406. 
 
 dowress liable to damage for waste, 407. 
 
 by statute, word " heirs " not necessary in a deed to pass a fee, 66. 
 
 devise to give a fee-simple, unless there are words showing an intent 
 to give a less estate, or a devise over, 71. 
 
 PARTITION, 
 
 by tenant for life will not bind remainder-men, 214. 
 
 effect of, on dower, 345. 
 
 of estate in common, should precede assignment of dower therein, 395. 
 
 but assignment may be made without partition, 395. 
 before assignment, widow need not be a party to proceedings in, 393. 
 after assignment widow cannot apply for, or her interest be made the 
 
 subject of, 402. 
 condition that partition shall not be made, upheld, 133. 
 
 PARTNERSHIP LANDS, 
 dower in, 309, 310. 
 
 PATENT, 
 
 no dower in a mere right to receive, 311. 
 
 descendible qualities of land held by patent by an alien in Iowa, 509. 
 
 PENNSYLVANIA, 
 
 statute 11 and 12 Wm. III., enabling natural-born subjects to take 
 55 
 
630 IXDEX. 
 
 PENNSYLVANIA— ( CoHiimMecZ.) 
 
 land by descent, notwithstanding alienage of parents, in force, 
 507. 
 
 statutes regulating tenure, of land by aliens, 521. 
 
 since Married Woman's Act, birth of issue not a prerequisite to cur- 
 tesy, 261. 
 
 desertion of wife by husband works forfeiture of curtesy, 281. 
 
 curtesy expressly saved in Married Woman's Act, 287. 
 
 entry for breach of condition not necessary to work forfeiture, 144. 
 
 mortgage by husband alone good against dower, 335. 
 
 sale upon a judgment against husband bars dower, 336. 
 
 so a sale under a testamentary power to pay debts, 337. 
 
 rights of creditors not postponed to dower, 349. 
 
 presumption, by statute, that provision for widow in husband's will is 
 in lieu of dower, 362. 
 
 bar of dower of insane wife, 377. 
 
 where wife is forced to leave husband by his misconduct, her subse- 
 quent adultery will not forfeit her dower, 385. 
 
 divorce a vinculo a bar to dower, 386. 
 
 Statute of Limitations applies to cases of dower, 389. 
 
 devise to be held to give a fee unless there are words showing an intent 
 to give a less estate or a devise over, 71. 
 
 statute de donis reported in force by the judges, 94. 
 
 statute with reference to sale of land for debts of tenant in tail, 103. 
 
 common recovery recognized by Declaratory Act of 1750 . . . 105. 
 
 statutes providing for bar of entail by deed, 110. 
 
 Act of 1855 converting after created estates tail to fees-simple, 112. 
 
 PERPETUITIES, 
 
 rule against — not applicable to conditions, 132. 
 applicable in conditional limitations, 189. 
 
 POWER, 
 
 addition of absolute power of disposition to a devise in general terms 
 enlarges it to a fee, 64. 
 
 addition of power of sale to express devise for life will not enlarge it 
 to a fee, 65. 
 in Virginia, express devise for life, with absolute power of dis- 
 position, will give a fee, 65. 
 
 power of appointment or sale vested in wife, unexecuted, will not aifect 
 the curtesy, 274, 275. 
 
 execution of, by husband will bar dower, 350. 
 
Index. 651 
 
 PREAMBLE OF WILL, 
 
 effect of, in interpretation of devise, 62, 197. 
 
 PEOCREATION, 
 
 words of, in creation of an estate tail, may be supplied by equivalent 
 expressions, 96, 97. 
 
 QUARANTINE, 
 
 See DowEE, 403 et seq. 
 
 QUARRIES, 
 
 See Mines. 
 
 RECITAL, 
 
 condition created by, 124. 
 
 when not, 125. 
 of husband, will not biad wife after her inchoate rigbt of dower has 
 
 attached, 335. 
 that a trust is for the sole and separate use of wife will not bar cirtesy, 
 
 271. 
 that a trust is for the promotion of the interest of a married woman 
 
 and her children apart from her husband will not bar curtesy, 
 
 275. ^ 
 
 RELEASE, 
 
 of ancestor, does not bind heir in tail, 103. 
 
 of dower, by wife to husband void, 379. 
 
 of dower, by separation agreement, 379. 
 
 of dower, by wife after divorce, 380. 
 
 of dower, must be to one having title to the land, or being ia privity 
 
 therewith, 380. 
 effect of, 381. 
 by widow, before assignment of dower, to heir not in possession,, not 
 
 champertous, 393. 
 of condition, 147. 
 
 RELIEF, 
 
 in equity agaiast forfeiture of estate on condition, 149. 
 
 REMAINDER, 
 
 statutes subjecting estates tail to sale for debts not applicable to estates 
 
 tail ia remainder, 103. 
 not affected by a conveyance in fee by a tenant for life, 213. 
 curtesy not given in, 266. 
 not an estate iu which dower will be given, 317. 
 
652 Index. 
 
 REM AINDER,— ( Continued.) 
 
 effect of, after indefinite failure of issue, 98. 
 after definite failure, 66. 
 
 REMAINDER-MA]Sr, 
 
 not liable to contribute to the expense of permanent improvement made 
 
 by the life tenant, 207. 
 except where the improvement was begun by the donor of the 
 
 estate, 208. 
 must contribute to assessments levied for municipal improvements, 
 
 210. 
 right of, to have insurance money applied to repairs, 211. 
 not bound by partition mjide by life tenant, 214. 
 may recover against life tenant for waste, 211. 
 in proper case, may have injunction to stay waste, 212. 
 
 EENT, 
 
 payment of, a good condition, 127. 
 
 life tenant entitled to, absolutely, 203. 
 
 apportioned between life tenant's executors and remainder-man, 203. 
 
 widow not liable for, during quarantine, 404. 
 
 even if, being also administratrix, she let out the mansion, 404. 
 if mansion is withheld, may recover rent therefor from the ad- 
 ministrator, 404. 
 one-third of rent assigned for dower under certain circumstances, 320, 
 396. 
 
 REPAIR, 
 
 when condition to repair is violated, 139. 
 obligation of life tenant to repair, 207. 
 
 REPUGNANCY, 
 
 condition repugnant to estate upon which it is granted, void, 128. . 
 
 RESERVATION, 
 
 of life estate may be made in deed in fee, 56, 196. 
 
 RESTRAINT, 
 
 upon marriage, when void, 128. 
 
 upon alienation, when void, 130. 
 
 upon use of land granted, when valid, 134. 
 
 RESTRICTION, 
 
 instance of, being allowed to enlarge a life estate to a fee, 54. 
 of reduction of devise to life estate by, 69. 
 
Index. 65] 
 
 REVERSION, 
 
 for injuries to, damages cannot be recovered by tenant for life, 204. 
 
 or by the curtesy, 280. 
 no curtesy in reversion after a freehold, 266. 
 
 effect of a devise providing for a reversion after an indefinite failure 
 of issue, 98. 
 
 REVERSIONER, 
 
 may recover for waste, 211. 
 
 RHODE ISLAND, 
 
 no restriction upon alien as to holding land, 521. 
 
 to uphold curtesy, held that seizin of wife must be in deed except in 
 
 case of waste lands, 263. 
 curtesy expressly saved in Married Woman's Act, 287. 
 statutory regulation of curtesy, 290. 
 statutory regulation of jointure and settlement, 358. 
 statutory bar of dower by joinder of wife in husband's deed, 371. 
 statute West. 2, c. 34, not in force, 385. 
 
 dower given immediately on divorce where for certain causes, 387. 
 duty of assigning dower imposed, by statute, on heir, 394. 
 statute with reference to assignment of dower where it cannot be by 
 
 metes and bounds, 396. 
 statutory provision for assignment of dower against common right, 397. 
 quarantine extended until dower is assigned, 403. 
 damages for detention of dower given by statute, 406. 
 demand for dower to be made one month before bringing action, 406. 
 dowress forfeits estate by waste, 407. 
 every devise to pass entire devisable estate of testator in the subject 
 
 thereof, unless contrary intent appear, 71. 
 estate tail barrable by deed or devise, 110. 
 
 SEIZIN, 
 
 of wife, necessary to sustain curtesy, 263. 
 of husband, necessary to sustain dower, 315. 
 See Curtesy, Dowjek. 
 
 SEPARATE USE, 
 
 husband may h^ve curtesy in an estate conveyed to the separate use of 
 his wife, 271, 273. 
 although the trust proceeds from himself, 271. 
 
 SEPARATION AGREEMENT, 
 in bar of dower, 379. 
 55* 
 
65-t Index. 
 
 SETTLEMENT, 
 
 as bar to dower, 355. 
 as bar to curtesy, 272, 274. 
 See Curtesy, Dowee. 
 
 SOUTH CAEOLINA, 
 
 statutory regulation of" jointure and settlement, 368. 
 
 statutory bar of dower by joinder of wife in husband's deed, 371, 372. 
 
 Statute of Limitations applies in cases of dower, but not in favor of 
 
 heir, 389. 
 statute with reference to assignment of dower where it cannot be by 
 
 metes and bounds, 896. 
 as of what time value of land is to be taken for purpose of assignment 
 
 of dower, 401. 
 in absence of apparent contrary intent, a general devise to be held as 
 
 in fee, 72. 
 statute making the above declaration held declaratory only and 
 
 retroactive, 72. 
 
 STALE CLAIMS, 
 
 rule of, applied in cases of dower, 890. 
 
 STATE, 
 
 rules avoiding conditions do not apply to grants by, 133. 
 
 manner of enforcing forfeiture by, 145. 
 
 not entitled to the estate by curtesy -when forfeited for treason, 284. 
 
 may modify or abolish dower while inchoate, 300. 
 
 exercise of eminent domain by, will bar dower, 332. 
 
 in Massachusetts, alien may acquire title as against, 502. 
 
 lands granted by the United States escheat for failure of heirs capable 
 
 of taking to the State, 512. 
 may regulate tenure, of realty by alien, 513. 
 grant of lands to an alien, 509. 
 enforcement by, of trust for benefit of alien, 512. 
 
 STATUTE OF FRAUDS, 
 
 relinquishment of dower a conveyance within, 378. 
 condition cannot be engrafted on conveyance by parol, 126. 
 
 STATUTE OF LIMITATIONS, 
 
 does not run against wife or her heirs during the continuance of an 
 estate by curtesy, 279. 
 
 curtesy allowed to be joined to a disability, and to prevent the run- 
 ning of the statute, 279. 
 
Index. 655 
 
 STATUTE OF LIMITATIONS— (Oonimweei.) 
 applies to the estate by the curtesy, 285. 
 does not generally apply to estate in dower, 388. 
 aliter in certain States, 389. 
 
 STATUTE OF USES, 
 
 conveyance in fee by life tenant, by deed operating under the Statute 
 of Uses, does not forfeit his estate, 280. 
 but as to the law in Maine, see 281. 
 
 TAXES, 
 
 obligation of life tenant to pay, 209. 
 
 distinction between ordinary taxes and municipal assessments for 
 permanent improvements, 210. 
 effect of sale for, upon dower, 337. 
 widow not liable for, before assignment of dower, 393. 
 
 or during quarantine, 404. 
 dowress liable for, 406. 
 
 TENNESSEE, 
 
 statute regulating tenure of land by alien, 522. 
 
 curtesy expressly saved in Married Woman's Act, 287. 
 
 dower limited to realty of which husband dies seized or possessed, 299. 
 
 dower given in equity of redemption by statute, 315. 
 
 dower given to wife of mortgagor dying in possession, 335. 
 
 widow's election between dower and testamentary provision to be made 
 within one year from probate of will, 366. 
 
 election need not be made where husband dies insolvent, 367. 
 . statutory provision for assignment of dower against common right, 397. 
 
 mansion house to be included in dower if it can be done without injus- 
 tice, 398. 
 
 by statute, word " heirs " not necessary in a deed to pass a fee, 56. 
 
 TEXAS, 
 
 native may take by inheritance through his alien parent, although the 
 
 parent is living, 508. 
 statute regulating tenure of land by aliens, 522. 
 by statute, deed without the word " heirs " may pass a fee, 56. 
 devise to pass a fee-simple, unless there are words showing intent to 
 
 give less estate, or there is a devise over, 71. 
 
 TREASON, 
 
 estate by curtesy forfeitable for, 284. 
 
 so estate tail, but only for life of person attainted, 103. 
 
656 Index. 
 
 TRUST, 
 
 disability of alien natjivoided by, 510. 
 
 for alien may be enforced by tbe State for its own benefit, 512. 
 
 dower given in, 311. 
 
 aliter in Maine and New Hampshire, 312. 
 curtesy given in, 262. 
 
 but trust may be drawn so as to exclude curtesy, 269. 
 may be so drawn with reference to estate for years, or pur autre vie, as 
 
 to serve purpose of entail, 95. 
 resulting trusts abolished in Michigan, 320. 
 
 TRUSTEE, 
 
 widow of trustee not entitled to dower, 320. 
 unless trust is conjoined with an interest, 321. 
 
 UNITED STATES, 
 
 rule of citizenship m, 494. 
 
 right of- expatriation recognized by, 495. 
 
 lands granted by, to an alien, escheat for want of heirs to the State, 
 512. 
 
 as to right of, to fix status of alien with reference to real property, 
 514. 
 
 as to right to confer by treaty real property rights on alien, 522. 
 treaties, 523. 
 
 Act of Congress of Feb. 10, 1856, with reference to dower of alien 
 widow, 303. 
 
 lands held by an alien by patent from, 509. 
 
 power to naturalize rests with, 513. 
 
 in grant by, there may be a valid condition which would be void for 
 repugnancy, or as against public policy, in a grant by an indi- 
 vidual, 133. 
 
 VENDOR'S LIEN, 
 
 superior to dower, 346. 
 where upheld, 347. 
 where waived, 347. 
 
 VERMONT, 
 
 by the Constitution, any one of good character settling in the State, 
 and taking the oath of allegiance, has the property rights of a 
 citizen, 522. 
 
 statutory regulation of curtesy, 289. 
 
Index. 657 
 
 VEKMONT,— ( Continued.) 
 
 dower limited to realty of which husband dies seized or possessed, 299. 
 
 dower given in equity of redemption by statute, 315. 
 
 where payment of mortgage is made either by personal representative 
 of husband or heir, widow must contribute, 344. 
 
 statutory regulation of jointure and settlement, 358. 
 
 widow has right of entry before assignment of dower, 392, 393. 
 
 statute with reference to assignment of dower where it cannot be by 
 metes and bounds, 396. 
 
 quarantine extended until dower is assigned, 403. 
 
 every devise to pass the testator's whole devisable interest in the sub- 
 ject thereof, unless contrary intent is shown, 71. 
 
 estate tail converted into estate for life in first taker, with remainder 
 in fee in heir at common law, 113. 
 
 VIRGINIA, 
 
 native may take by inheritance through his alien parent, although the 
 parent is living, 608. 
 
 statutes regulating tenure of land by aliens, 522. 
 
 dower postponed to purchase-money mortgage, 327. 
 
 widow dowable in surplus after mortgage superior to her right, 329. 
 
 eviction of husband's estate by fraud or collusion no bar to dower, 
 332. 
 
 statutory regulation of jointure and settlement, 358. 
 
 on question whether devise is in addition to or in lieu of dower, parol 
 evidence admissible, 363. 
 
 bar of dower of insane wife, 377. 
 
 statute as to bar of dower by adultery and elopement, 384. 
 
 as of what time value of land is to be taken for the purpose of assign- 
 ing dower, 401. 
 
 quarantine extended until dower is assigned, 403. 
 
 damages for detention of dower given by statute, 406. 
 by statute, a deed without the word " heirs " may pass a fee. 
 
 held, a devise for life, followed by absolute power of disposition, will 
 vest a fee, 65. 
 
 devise to pass the entire devisable estate of the testator in the subject 
 thereof, unless contrary intent appear, 71. 
 
 power to bar entail reserved to Legislature by statute of 1710 ... 94. 
 
 common recoveries prohibited, 105. 
 
 writ otad quod damnum, 107. 
 
 estate tail converted into fee-simple. 111. 
 
 2K 
 
658 Index. 
 
 WAIVER, 
 
 of performance of condition, 146. 
 
 see Condition. 
 of vendor's lien, 347. 
 
 WARRANT LANDS, 
 
 See Land Warrants. 
 
 WARRANTY, 
 
 warranty will not enlarge a less estate to a fee-simple, 54, 57, 195. 
 a warranty and habendUm run together, held a clumsily constructed 
 
 habendum, 54. 
 always attendant on estate granted, and expires with it, 195. 
 
 WASTE, 
 
 may be committed by tenant in tail, 102. 
 may not be committed by life tenant, 211. 
 
 what constitutes waste by, 212. 
 tenant by curtesy liable for, 277. 
 dowress impeachable for waste, 407, 
 
 WEST VIRGINIA, 
 
 no restriction upon alien friend as to property rights, 522. 
 
 curtesy initiate abolished, 289. 
 
 curtesy forfeited if husband deserts his wife, 281. 
 
 statutory regulation of curtesy, 289. 
 
 dower given in estates in joint tenancy, 309. 
 
 dower postponed to purchase-money mortgage, 327. 
 
 widow dowable by statute of surplus after mortgage superior to her 
 
 right, 329. 
 eviction of husband's estate by fraud or collusion no bar to dower, 332. 
 statutory regulation of jointure and settlement, 358. 
 bar of dower of insane wife, 377. 
 
 statute as to bar of dower by adultery and elopement, 384. 
 quarantine extended until dower is assigned, 403. 
 damages for detention of dower given by statute, 406. 
 devise to pass entire devisable estate of testator in the subject thereof, 
 
 unless contrary intent appear, 71. 
 
 WILD LANDS, 
 
 dower not given in New England, 304. 
 assignment of dower in, 398. 
 
Index. 659 
 
 WILL, 
 
 in interpretation of, intention of testator to determine the estate granted, 
 57, 96, 196. 
 words in will held to give fee-simple, 59. 
 to give estate tail, 97. 
 not explainable as to intent by extrinsic evidence, 59. 
 
 but when it refers to another writing, the latter may be examined, 
 59. 
 interpretation of, generally, 62, 63, 98, 196. 
 statutes as to interpretation, 63, 362. 
 curtesy in legal estate cannot be prevented by provision in, 268. 
 
 aliter as to equitable estate, 269. 
 provision by, in lieu of dower, 359, 369. 
 bar of curtesy by joinder of husband in will of wife, 283. 
 
 WISCONSIN, 
 
 no restriction upon alien as to tenure by realty, 522. 
 
 curtesy initiate abolished, 289. 
 
 statutory regulation of curtesy, 289. 
 
 nominal conditions may be disregarded, 136. 
 
 dower in land aliened by husband not given to a widow non-resident 
 in the State at the time of the husband's death, 303. 
 
 right of dower conferred upon aliens, 304. 
 
 dower given in equity of redemption by statute, 315. 
 
 dower postponed to purchase-money mortgage, 327. 
 
 widow dowable in surplus after mortgage superior to h^r right, 329. 
 
 contribution by dower to redemption of mortgage — statute as to, 344. 
 
 partition as affecting dower — statute as to, 346. 
 
 exchange — right of dower in case of — statute as to, 346. 
 
 statutory regulation of jointure and settlement, 357. 
 
 presumption, by statute, that devise or bequest to widow is iu lieu of 
 dower, 362. 
 
 widow must elect between dower and provision within one year from 
 death of husband, 366. 
 
 statutory bar of dower by joinder of wife in husband's deed, 371, 372. 
 
 bar of dower of insane wife, 377. 
 
 dower given immediately on divorce when for certaui causes, 388. 
 
 statute with reference to assignment of dower where it cannot be by 
 metes and bounds, 396. 
 
 as of what time value of land is to be taken for the purpose of assign- 
 ing dower, 401. 
 
660 Index. 
 
 WISCONSIN ,— ( Continued.) 
 
 collusive assignment not binding on minor heir, 402. 
 
 statutory provision for assignment as a finality, 402. 
 
 damages for detention of dower given by statute, 406. 
 
 by statute, a deed without the word " heirs " may pass a fee, 56. 
 
 every devise, in the absence of contrary intent appeariag, to pass the 
 
 entire devisable estate of the testator therein, 71. 
 estate tail abolished, 113. 
 
 YEARS— TERM OF, 
 
 not entailable, 95. 
 
 but may be so settled as to serve the purposes of an entail, 95. 
 outstanding term will not prevent curtesy, 268. 
 
 or dower, 320. 
 no dower in, even if of great length, 306. 
 
 aliter in Massachusetts and Missouri, 307. 
 
 END OP VOL. I.