The clause in the will of Benjamin Buxton, upon the construction of which the case principally depends, is as follows : “ And the other half of my estate, both real and personal, I give and dispose of as followeth, viz. the one half of all my lands, except the eight acres given to James, to my son John Buxton and the heirs lawfully begotten of his body, and their heirs and assigns, and all the remainder of my movea ble estate.” It is argued that the words “heirs and assigns’ must be construed to have some meaning ; and that, by giving *91them their appropriate signification, they enlarge the gift to a fee, and consequently the demandant has no estate in the demanded premises. But we are of opinion that the words do not enlarge the devise. It is á common rule of construction, that general words are to he limited and restrained by thf subject to which they immediately relate, and are not to be construed as conferring a larger or different grant or power than the distinct grant or power created by the specific words. In this case, to give the construction contended for, would be directly to change the nature of the estate specifically created, and to defeat the object of the grant. In cases where a sub-' sequent clause is clearly repugnant tó preceding clauses, the clause must be rejected as not expressing the intent of the donor or grantor, and as the only legal mode of carrying into effect imperfect instruments. But in the case now before us, we do not think the clause repugnant, nor that the words were intended to enlarge, or that they do enlarge, the estate previously created ; but that the clauses may stand together, and that they intend merely to express the nature of the estate, as one of inheritance beyond the immediate heirs of the first taker, and are but a repetition of the gift. The words “ heirs and assigns ” are qualified and restrained by the words “ heirs of the body,” which last show clearly the intention of the testator to create an estate tail; and whether the restraining words succeed or precede the more general words, they operate, in either case, to limit the gift or grant, if the intention is clearly expressed by such restraining words; as in Soulle v. Gerrard, Cro. Eliz. 525, where Richard Baker, being seized of land in fee, and having four sons, devised his land to his son Richard and his heirs forever, and if he should die within the age of twenty one years, or without issue, then to his three other sons. The devisor died, and Richard, the devisee, had issue, a daughter, and died within age ; and it was adjudged that he took an estate tail, and that the daughter was entitled to the estate. So in Clache’s case, Dyer, 330 6, where a grant to A. and her heirs forever was restrained by the subsequent words, “ having no issue.” See also Corbin *92v. Healy, 20 Pick. 514, where one Marcy executed a deed to his daughter Rhoda. The words were, “ unto the said Rhoda, and to her heirs born of her body, to be to her and them forever ; ” and afterwards, in the habendum, were the words “to have and to hold the sanie to her and her heirs forever.” The grantor also covenanted with her, and her heirs as aforesaid, that he would “ warrant and defend the same to her and ner heirs aforesaid.” In that case, the court held that the words in the habendum did not enlarge the estate to a fee simple, but that the generality of the word “ heirs,” in the habendum, was limited to those heirs who by law could take that estate, namely, heirs of her body. ' See also Co. Lit. 21 a. Perk. §§ 170, 171. Osborne v. Shrieve, 3 Mason, 391.
This disposes also of the second point raised, to wit, that if there was an estate tail in the first taker, the fee vested in the heirs of Timothy, and that his eldest son did not take the estate as tenant in tail, and so the demandant, though an heir and the eldest son of Timothy, would only be entitled to one tenth part of the estate. Upon the authorities above cited, it is clear that the estate was not enlarged in the heir of the tenant in tail, by the subsequent words, and consequently the eldest son of John took. an estate tail, and not an estate in fee ; and under him the demandant claims as heir in tail.
We are now called upon to consider the construction to be given to the deed of partition between the two brothers, John and James Buxton, made shortly after the death of their father. And the question is, whether the legal effect of this partition was, to give John Buxton an estate tail in the whole of the lands set off to him in severalty, and to James .Buxton an estate in fee in the portion set off to him; or, admitting that it would not bind the heir of the tenant in tail, if he chose to avoid it after the death of the tenant in tail, yet if he now comes in and affirms the partition, whether he cannot establish it, and thereby entitle himself to claim the whole of the demanded premises.
This partition was not made under any legal process, but *93was the mere agreement of the parties ; and it is very clear, we think, that it could not bind nor affect the heir in tail, though it would be binding on the tenant in tail during his life. Co. Lit. 170 a. 173 b. Soule v. Soule, 5 Mass. 64. And although such a division of the estate might be a reasonable and fair one, yet the legal power was wanting to carry into effect their intent in its full extent. The deed itself, however, was not a simple partition during the life of the tenant in tail, because James, who was seized in fee of an undivided half of the estate, by force of the partition deed, conveyed an estate in fee to John and his heirs, in half the premises assigned and transferred to John in said deed, while he, in return, took but an estate for life in half the premises released and conveyed to him by John, who had no right or power to pass a larger estate. We are therefore of opinion that, by the deed of John Buxton to Nicholas Batty, an estate in fee passed to him in an undivided half of the premises conveyed to him, and an estate of freehold, during the life of John, in the other undivided half. This deed was made so long ago as January 1789, but John Buxton not dying till 1839, the right of the heir in tail has not been affected by the lapse of time, although Batty’s estate has passed to other persons, under whom the tenants claim.
Whether the heir in tail could have affirmed the partition after the death of the tenant in tail, if he had made no conveyance during his life time, we are not called upon to consider, because, after the transfer to Batty, other persons acquired rights in the lands, which could not be affected by any election of the heir in tail to affirm the partition.
With these views, we are of opinion that the demandant has established his title to one half of the demanded premises ; and his remedy, if he has any, for his further interests in the lands devised in tail, must be pursued against the other owners of the entailed estate.
Judgment is to be entered on the verdict for an undivided moiety of the demanded premises.