The controlling question in this case is, what is the legal effect of the fourth paragraph of the will?
The 10th section of the act of 1812 declares, that “every estate in lands or slaves, which now is, or shall hereafter be, created an estate in fee-tail, shall from henceforth be an estate in fee-simple, and the same shall be discharged of the conditions annexed thereto by the common law, restraining alienations before the donee shall have issue; so that the donee, or person in whom the conditional fee is vested, or shall vest, shall have the same power over the said estates, as if they were pure and absolute fees. Provided, that any person may make a conveyance or demise of lands to a succession of donees then living, and the heir or heirs of the body of the remainder-man, and in default thereof, to the right heirs of the donor, in fee-simple.” — Clay’s Digest, 157, § 37.
As long ago as 1836, in Simmons v. Augustin, 3 Porter, 69, this court, in construing the statute above referred to, declared that every conveyance made since its passage, if it contained words proper and necessary to create a fee tail, and its expressions imported an estate tail, was a conveyance of the fee simple; and that to constitute a valid limitation by a conveyance, which, if construed without reference to the statute, would have had the effect to create an estate tail, the language prescribed in the statute must be adopted. The opinion of this court in the case above cited has, thus far, been acquiesced in as a proper exposition of the statute. If must now be regarded as a rule of property, and be adhered to as such. Under its influence, we are constrained to hold, that as the expressions contained in the fourth paragraph of the will under consideration import an estate tail, and as the language prescribed in the statute of 1812 has not been *118adopted in that paragraph, the effect of that paragraph was, to vest in Martha Ann Burt, the first taker, the absolute beneficial interest in the real estate thereby devised, not merely for her life, but as an estate in fee-simple. The limitation of that real estate to the heirs of her body, and in default of such heirs to the right heirs of the testator, is invalid. It is not authorized by the proviso to the 10th section of the act of 1812. The conveyance is not “to a succession of donees then living, and the heir or heirs of the body of the remainder-man"; but to a donee then living, and the heirs of her body forever, in fee-simple. The case presented by the fourth paragraph of the will is not the specific case provided for and saved by the proviso to said 10th section. And although there may be as good reason why the legislature should have authorized the limitation contained in said fourth paragraph, as to have authorized the limitation expressed in said proviso ; yet the court is not called on to say what law the legislature should have made, but simply what law it did make for such a case as the present.
Having decided the point above considered against the appellant, and understanding from him that, if we did decide that point against him, he did not desire an examination of any other question in the case, we decline to consider any other question, and affirm the decree. He must pay the costs, and be reimbursed therefor out of the trust funds.
StoNe, J., not sitting.