On the 12th day of March, 1864, Bridget M. Evoy, for an expressed consideration of one thousand dollars, conveyed to Z. Montgomery, and Ellen, his wife (the said Ellen being the daughter of the grantor), a tract of land. The premises of the deed contain no words of inheritance, but simply grant, bargain, convey, and confirm to parties of the second part a specific tract of land. The habendum is as follows:
“ To have and to hold all and singular the above mentioned and described premises, together with the appurtenances, unto the said parties of the second part, and to the longest liver of them, for and during their natural lives and the natural life of such longest liver, remainder thereafter to the issue and heirs of their two bodies, begotten and to be begotten, and the heirs of such issue forever, to and for the use and benefit of such longest liver of them, for and during the life of such longest liver, and thereafter to and for the use and benefit of the said issue and heirs of their two bodies, begotten and to be begotten, in equal shares, as tenants in common, the issue, if any, of any child of their bodies who may die before the death of the longest liver of said parties of the second part, to take the share and portion of such deceased child.”
In November, 1869, Montgomery and wife made a valid contract, by which they agreed to sell to defendant a portion of this land. In pursuance of his contract they after-wards tendered a deed to the defendant, and demanded a performance on his part, which was refused on the ground that plaintiffs were not the owners of the land in fee simple, the deed from Mrs. Evoy conveying to them a life estate only. This action is brought to compel defendant to perform the contract, and is resisted on the ground above stated.
It is first contended by plaintiffs that under our statute the *296granting part of the deed conveyed to them an estate in fee simple, and that the limitation in the habendum is repugnant to the grant, and therefore void. The section of the statute referred to is as follows:
“ Section 2. The term heirs, or other words of inheritaüce, shall not be necessary to create or convey an estate in fee simple; and every conveyance of any real estate hereafter executed shall pass all the estate of the grantor, unless the intent to pass a less estate shall appear by express terms, or be necessarily implied in the terms of the grant.”
If the habendum were entirely omitted, the deed in question would undoubtedly have conveyed an estate in fee simple; and it is, therefore, contended that the language of the habendum, which attempts to limit the estate granted to a life estate, is repugnant. Independently of the statute, the common law rule was that a deed like this, without the habendum, would convey a life estate only. The estate, though different, was just as definite as that under the rule of the statute. If the argument of counsel were correct, the result would have been that the grant could not have been enlarged by the habendum. Met we all know that where the formal parts of a deed are all used this was the customary mode of conveying, and is still often followed.
The rule of common law was only intended to apply to conveyances in which the extent of ownership of the grantee in the thing granted was not defined in the conveyance. The statute rule was merely intended to take the place of the common law rule. ¡Neither was intended to override the expressed intention of the parties. The office of the habendum is to limit and define the estate which the grantee is to have in the property granted. It is not an essential part of a deed,- but has generally been used, and in some States the form adopted in this case is in general use. ¡No estate is limited in the granting part of the deed, but this is done in *297the habendum. The Legislature did not intend to prohibit this form of conveyance, but merely to supply a rule of construction when the parties failed to define the estate conveyed. The word grant, in the last part of the section of the statute, has precisely the same meaning as the word conveyance in the preceding clause.
Giving full effect to the language of the habendum clause in this deed, it is a conveyance to the grantees for their joint lives, and to the survivor during the life of the survivor, with remainder to the issue and heirs of their two bodies and the heirs of such issue forever.
It is contended by the defendant, and I think correctly, that this language clearly indicates an intention of limiting the interest of the grantees named in the deed to a life estate, and that the issue or children of the grantees named take by purchase and not by limitation; and this is rendered more evident from the fact that the deed goes further and uses apt words to vest an estate in fee simple in such issue, as though they had been the first takers. It is to them and their heirs, and in a subsequent clause provision is made that they shall take as tenants in common, and that in case of the death of one of them, during the life of the longer liver of the grantees named in the deed, the issue of such deceased child, if any, shall take the share of such deceased child. The conveyance is to the grantees and to the heirs and issues of their bodies. Had it stopped there, undoubtedly, by familiar rules of construction, it would have vested in Montgomery and wife an estate in fee tail general. The word issue, connected as it is with the word heirs, would not indicate a specific designation of certain individuals, but the phrase, heirs of their bodies, would clearly be a nomen eollectivum, indicating a class of heirs who would take in perpetual succession. It would include all the posterity of the grantees. *298But the conveyance vests a new inheritance in the heirs of their bodies. They take an estate of inheritance generally. The remainder is to the heirs of the bodies of the grantees. When once vested in them, however, it is inheritable generally, and may go to those who are not descended from the first grantees. As a new descent commences from the issue of the first grantees, it is necessary that the estate shall vest in them, as the root of this new inheritance. (2 Wash. on Real Prop. 273; 4 Kent Com. 221, and cases there cited.)
This language clearly indicates an intention on the part of the grantor to limit a life estate in Montgomery and wife, and to vest a full estate in their children. Otherwise, by the terms of the conveyance, it would be an estate tail in the first grantees, and an estate in fee simple in their heirs. This, of course, tiould not be.
Judgment reversed, and cause remanded for further proceedings in accordance with this opinion.