Curia, 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 if necessary to examine the numerous cases to be found on the subject. They are many of them cited in Jackson v. Kisselbrack, (10 John. 337,) which I consider decisive of this question. In that *328case 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 contradistinguished 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 instrument 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 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 restrained by condition. If he seeks to crfeate a greater estate, the effort 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 limitation whatever, he will take an estate for his own life, unless the grantor 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. Forster, Dyer, 307, b. And vid. 2 Bac. Abr. Estate for life and occupancy, (A) p. 559.) *329Lord Coke (Co. Litt. 42, a. and 183, a.) gives as a reason, the maxim, in law, that every man’s grant shall he taken by construction of law most forcibly against himself; 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 reversion.
The law will intend the lease to be such an one as he may lawfully make, rather than that an injury may accrue to any one. (Co. Litt. 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.