By the grant in this deed a fee was conveyed to Henry A. Breed and Catharine H. Breed. Being husband and wife, if there were nothing else in the deed to control or modify its operation, the estate would vest in them as joint tenants, and the inheritance would be limited to the heirs and assigns of the survivor.
But the recital of the consideration imports an investment of her estate ; and the habendum declares that the estate purchased is to be held by them as her estate, that is, “ in her right,” with limitation over to “ her heirs and assigns.”
This manifest intent of the parties should be carried out in the construction of the deed, if it can be done consistently with established rules and principles of law. We think it may be; and that it is warranted by the decisions of this court in Pratt v. Sanger, 4 Gray, 84, and Chenery v. Stevens, 97 Mass. 77. The habendum qualifies the limitation as set forth in the premises, but is not repugnant to it. The estate is accordingly now in the demandant for his life; but the descent of the inheritance has already been cast by the death of Mrs. Breed. It has vested in Henry A. Breed, Jr., and his estate passed by the deed of his guardian to the tenant. Whether the demandant holds his estate Eor life under the limitations of the deed, or under the declaration *320of the uses, or as tenant by the curtesy, is immaterial for the purposes of this case.
As the demandant claimed a fee and has shown only a life estate, he has not proved “ that he is entitled to such an estate as he claims in the premises.” Gen. Sts. c. 134, §§ 3, 7. And in. accordance with the agreement of parties, there must be
Judgment for the tenant.