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 kins- “ man Solomon Hall, 10Ɩ. in lawful money, likewise 60 acres “ of woodland, joining on the northeast side the plantation “ he now dwells on, I give to him, and his lawful begotten “ heir for ever." 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 Solomon 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 authorities which have been cited. It is objected, that the words for ever indicate an intent to give a fee. But these words are properly applied to an estate tail, because an estate tail may continue for ever, and was, at common *382law, a fee simple of a particular nature. It is next objected, that there cap be no estate tail, because the devise is to the lawfully begotten heir, not heir's. 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 Dubber v. Trollop, 8 Fin. 233. pli 13. His expressions are, that “the opinion “ of Coke is not warranted by any thing 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 bodiek, “ which was held to be an estate tail.” In Whiting v. Wilkins, 1 Buls. 219., a devise to A for ever, 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 collectivum. The plaintiff’s counsel cited other cases to the same purpose, which it is unnecessary to notite, as the point is sufficiently clear. The last and principal objection 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 rule of law certainly is, as laid down in 2 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 to designate heirs begotten by the devisee? It is tod far fetched an idea; to suppose, that the testatrix looked to the general heir,’ and used the words latvfully begotten 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 wish to limit the estate to the issue of the devisee. The desire of confining property to a particular family, seems *383deep rooted in the human breast. From whence this passion springs, which delights in exercising a kind of dominion over property after death, it is unnecessary to inquire. But the fact is, that we see it prevail in people of all conditions.
I have hitherto considered the intention of the testatrix, 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 for ever. Also for the love and affection she bears him, she gives to him and his heirs for- ever, all the reversion of what she had before given of her estate both real and personal. Here it appears, that Joseph was her favourite, and that she knew how to give an absolute fee simple, where she intended it. The devis’e bf the reversion may it is true be satisfied, by referriug 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 Solo-’ man Hall, and at all events it leaves no ground for the argument which might otherwise have been raised, that a fee pimple 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. Lift, note 121., says, a devise “to one and his heirs lawfully 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 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 co^sideripg the man from whom it *384came, 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 seised of the premises as tenant in tail, and Solomon (the grantor or lessor) was not seised 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 limitations began to run from its date. If the grantor had any right capable 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 Hall the grantee, because during his life he was rightfully seised 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 &c., 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 &c., of the seisin or possession of himself or his ancestors, or declare or allege any other seisin 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 time of his making the deed, he had neither right or title accrued, but only a possibility that it might *385thereafter 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 suspended 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 ifttitled to ajudgment.
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 corpdre 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,” &c. Co. Litt. 20 b., 7 Co. 41 b.
In wills the fundamental principle is, that the intention of the testator 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 lazvfitl begotten haire for &ver.” To her negro boy Toby, she gave 10 adres of land lying on the northeast corner of her land, to have during his life: “ and “ to her kinsman Joseph Hall and to his lawful heirs for ever, “ she gave all her plantation, that she had not before given, “ with all the improvements thereon to him and his heirs for “ ever; and for the love and affection she had unto him, she *386“ gave and bequeathed to the aforesaid Joseph Hall, all the " reversi°n °f what she had therein before given of her es- “ tate both real and personal, or of what kind or nature “ soever unto her said kinsman Joseph Hall and his heirs for u ever”
It appears then, that Joseph Hall was the favourite object of her regard 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 for ever, and in the devise to Solomon to him and his lawfully begotten heir for ever, if the testatrix meant to grant to each devisee a fee simple? The difference of phraseology would seem to import a difference of intention; and this construction is fortified in my idea, by the expressions u 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 heir in the singular number, would seem to point to the individual heir at common law, claiming/;crforman 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 rtomen collectivum 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 ex-pressionsfor ever 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 t'o 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 iss'ue. Co. Litt. 27 b. And if it be riot ex*387pressed, 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 afee simple. Litt. s. 31. The only question here therefore is, whether the testatrix has used sufficient words to limit the inheritance 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 ed. — 2 Bac. Estate Tail B 259. 1st ed. The expressions of lord Hardwicke in Barret v. Beckford, 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. Rot. 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 seised 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 hceredibus 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 mere, and if both should die without fruit &c., then that f. 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 that 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. 5. Devise p. 26, 1st ed., that the words “ hceredibus suis legitime procreatis,” in a will, create an estate tail without 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. Ray. 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 *388the inheritance of the 60 acres in question was limited to ^le 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 plain tiff 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 subsequent infancy, coverture &c. 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 fohn should die without issue. 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 yac. 1. c. 16., was held to be in force here. 1 Dali. 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 yohn Hall and those holding under him, were in-titled to the legal possession 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 yohn 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 preclude him from recovering the lands in question. But his case is not embraced by the act, the second section enacting, 44 that from 44 henceforth, no person shall make entry into any manors, 44 lands &c., after the expiration of twenty-one years, next af44 ter his right or title to the same first descended or accrued There is an interval of nineteen years between 1785 and *3891804, arid therefore the act interposes no bar in the present case.
Whatever my private feelings may be in favour of innocent purchasers, I feel myself bound to give my voice that judgment be entered for the plaintiff.
Brackenrid'ge 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 intail, that the words used can be construed an intail; and this on the ground of indulgence in a devise. But I do not believe that an estate of this nature was intended; and thisJFrom considering,
1. The rank and country of the devisor. Had she been of the gentry or nobility of England, I could more readily have inferred the family pride of preserving an estate unbroken, and continued in the succession 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 bequeathes 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 evidently that of a half learned person, with motes of lazo *390terms glimmering in his brain; but without seeming to know use °f each, in its particular place. Lawful heir, begotten heir, used now, and omitted again, carries with it evidence 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 supposed to last for ever, but to be revertible to him from whom it came. An estate tail clearly 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), remainder 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 grammarians, 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 intention drawn from the mere force of the terms. The question then will be, to which construction shall I incline, where the evidence of intention is in balance. I speak of the evidence which is attempted to be drawn from the use of the terms. Which estate shall be favoured; that of the intail, 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 favourite of the judges, but that they winked at the evasion of it; or in the words of Blackslone, “ 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 procuring the statute H de donis, introduced the fee tail, the courts, by a kind of pia *391“ fraus, eluded the statute, by a fiction in barring the intail.” 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 intails; and I cannot but be of opinion, that were the same judges who at an early-period made some of those decisions, on a bench at this day, they would be shackled still less; in this country, more especially, where a change of property under such decisions, could not affect; and where, in inferring an intention, they would look to the manners, customs, and habits of the people. 2 Massachusetts Reports, 62.
Nor is it only to these that we are to look, but to the laws of a community, 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 intail became more questionable than it was in the mother country. 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 early laws of distribution in the case of intestacy, we shall discover 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 army or navy. The locking up ¡estates was unfavourable to the “ enlarging the em- “ pire, and promoting useful commodities,” which is recited in the charter as a consideration of granting it, and to which the subdivision of property was favourable. 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 *392in the application of a principle under a different state of ^nSs> there is this latitude. Tails enhn est humará juris disciplina, ut opiniones, secundum varietatem temporarily senes~ cant et intermoriantur, aliceque diversas renascantury et dehide pubescant. A rule of construction is spoken of as flexible. See BlackstonPs 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 referred' 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 adjudged 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 heir male 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 bodtjy 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 reject the wor;d “ begotten,” and the insensible word “ hairef and the devise will then be “ to him and his for ever,” which in a devise is a fee simple.
The word haire is insensible, and I must reject one letter, and transpose another, to make it heir. Why this spelling to make out an estate of questionable policy, and of extreme hardship in an individual case? There can be toothing collected of improvidence in the ancestor, er 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 labour 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 century ago, would go but little way to alleviate the misfortune. It cannot therefore be supposed that under th.ese circumstances I can have any great inclination to col*393lect 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 en~ semble of the whole will together 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 necessary 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 yf time that had elapsed before the idea of an estate tail in tliis 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 term* of this devise therefore, on the strictest precedents, not imperiously demanding of me1 the construction contended for, l 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 limitations.
Judgment for plaintiff.