This case presents three questions. 1. What estate did Solomon Dart the elder take under this devise ? 2. What estate passed from the plaintiff to the releasees ? 3. Is the plaintiff estopped, by his deed to them ?
To answer the first question, we must ascertain the intention of the devisor; and this can be learned only from his will. His first object seems to have been, to provide for his sons, during their lives ; the second, to perpetuate his estate in his name and family. This, according to the notions of those days, could be effected only by an entailment. He therefore used expressions, which have always been understood to create an estate tail. In the first place, he created an estate of inheritance in his sons. lie then forbade their selling it away from their lawful male issue. And lastly, he provided, that if either of his sons should die without such issue, his land should revert, and become the estate of his surviving sons, or their male issue. This completed the entailment in perpetuity, according to his views ; though not according to the modern decisions. Chappel v. Brewster., Kirby 175. Hamilton v. Hempstead, 3 Day 332.
But the defendants claim, that Solomon, the devisee, took an estate in fee simple, conditional or in remainder. I am satisfied, upon the authority of many adjudged cases, both English and American, that he took an estate in tail male general. A reference to a few, which seem to run “quaiuor pedibus’' with the case at bar, will remove all doubt.
*254“ Jf land,” saith Perkins, (sect. 173.) “ be given by deed unto S. el si contingat ipsum onire sine hcerede de corpore suo, quod tunc revertat, to the donor and iiis heirs, without any habendum in the deed, the donee hath an estate tail.”
In Webb v. Hearing, Cro Jac. 415. the testator devised thus: “ To F., my son, my houses in L., after the death of my wife ; and if my three daughters, or either of them, do overlive their mother, and their brother and his heirs, then they to enjoy the houses for the term of their lives, remainder to my sister’s sons,” &c. The court resolved, that he had but a fee tail; for by heirs, in this place, r intended heirs of the body.
So in Sonday’s case, 9 Rep. 127. the testator devised his house to his wife for life, aod after her death, his son William to have it; and if William marry, and have issue male lawfully begotten, then his son to have it; remainder to his other sons successively, totidem verbis; and then adds, “ If any of his sons, or their heirs males issue of their bodies go about, at any time to alienate or mortgage the house, then the next heir to enter and enjoy it.” It was resolved, by the two chief justices and the court of wards, that the sons have an estate tail, to them severally and to the heirs male of their bodies.
In Price v. Smith, Willes’ Rep. 1. the testator devised his estate to his son Philip in fee, on condition that he pay £30 to his son William, under this limitation, viz. “ In case any of my said children, unto whom I have bequeathed any of my real estate, shall die without issue, then I give the estate ofhim or them so dying unto his or their right heirs.” “ It cannot be doubted,” said the court, “ after so many solemn resolutions, but that if a man devise an estate to A. and his heirs, and after-wards in his will give his estate to another, in case A. die without issue, the subsequent words reduce A.’s estate only to an estate tail, and restrain the general word heirs to signify only heirs of the body. Vide Aliham’s case, 8 Rep. 154. b. and Dean d. Slater v. Slater, 5 Term Rep. 335 and cases there cited.
In Doe. d. Ellis v. Ellis, 9 East, 382. the testator devised his estate thus : “ To my son Joseph, his heirs and assigns; but in case my son shall die without issue, then l give and devise the same to the child or children with which my wife is now ensient, his heir” &c. Lord Ellenborough said: “ The estate being at first given to Joseph, his heirs &c. forever, would have given him the fee. But the premises, however large, may be restrained by the context, as premises however narrow, may *255be enlarged by it. Here then, the testator goes on to say, that in case Joseph should die without issue, then he gives over, which clearly gives Joseph only an estate tail.” And Grose, J. said : “ It is impossible to read this will, without seeing, that the testator intended, that if J. has issue, that issue should take ; and if he died without issue, the issue of which his second wife was ensient, should take the estate ; and this intention could only be effectuated, by giving J. an estate tail.”
In Hurlburt v. Emerson, 16 Mass. Rep. 241. the testator devised part of his estate to his son John, subject to the payment of certain legacies, adding, “ that in case my son John should leave no male issue, then one half of the above bequests to be equally divided among his children, and the other half among all my surviving children.” The court unanimously decided, that the devise to John, was an estate in tail male general.
The same point has been more than once decided in this state.
In Dart v. Douglass, which was an action for another parcel of the same devise, the same question arose ; and it was decided, by the superior court, in January, 1816, whereof the late Chief Justice was one, that the devisees took an estate tail. This decision, though not binding on this court, is entitled to great respect.
In Peters v. Loomis, in 1860, the case was thus. In 1758, John Thompson devised his estate to his five children in fee, and added this clause : “ If any of my said children shall die, his, her or their share, if heirless, shall be equally divided among my surviving children.” Ann, a daughter, married, and died without issue, in 1798: the plaintiff was the only survivor, — the rest having previously died leaving issue. The superior court decided, that by heirless, the testator meant without issue, and that the plaintiff was entitled to recover
2. What estate passed from the plaintiff, by his deed to the releasees ? By the common law, a release is a secondary conveyance, and is a discharge of a man’s right in land or tenements to another, who hath some former estate in possession. Shep. Touch. 318. 2 Bl. Com 328 But in this state, a release is considered as a primary conveyance, and passes all the right of the releasor to the releasee, provided no other person be in possession adversely ; and operates as a conveyance without warranty. 1 Sw. Dig. 133. But if he have no right, nothing *256- passes, not even a chose in action. What estate, then, had the . issue of the first donee in tail, during his life ? My answer is, non.-. The plaintiff could, therefore, convey none. Such issue is only an heir apparent or presumptive. His title is the bare possibility, or mere chance, of becoming eventually the heir in tail; for the maxim is, “ nemo est haeres viventis.” And it is a well settled rule, that a mere possibility cannot be released or conveyed ; and the reason thereof is, that a release supposes a right in being. Shep. Touch. 319. Bac. Abr. tit. Release. H. Hence, it is holden, that an heir at law cannot release to his father’s disseisor, in the life-time of the father; for the heirship of the heir is a contingent thing ; for he may die in the life-time of his father. Ibid. This question was indefeasibly answered, by our great master Littleton, nearly four centuries ago. “ If there be father and son, and the father be disseised, and the son (living the father) releaseth by his deed to the disseisor, the right which he hath, or may have, in the tenements, without clause of warranty, and after the father dieth, this son may lawfully enter upon the possession of the disseisor; for that he hath no right in the land in his father’s life-time, but the right descended to him after the release made, by the death of his father ; for no right passeth by a release, but the right which the releasor hath, at the time of the release made ; and if he hath no right, the release is void.” Littleton, sect. 446. Lampet's case, 10 Rep. 51. a. “ And in some cases,” saith Sheppard, (Touch. 321.) “a release, like a confirmation, doth enure by way of abridgment. But a man cannot bar himself of a right that shall come to him hereafter ; and therefore it is field, that these words used in releases, qua; quovis modo in futuro habere potero, are to no purpose.” This is a mere quotation from the text of Littleton, {ubi supra) which is there sanctioned, by the commentary of Sir Edward Coke. “ But here, in the case which Littleton puts, where the son releases in the life-time of his father, this release is void, because he hath no right at all, at the time of the release made, but all the right was at that time in the_ father ; but after the decease of the father, the son shall enter into the land against his own release. 1 Inst. 265 a. And we are informed, by Lord Chief Justice Trevor, in delivering his opinion in Arthur v. Bokenham, Fitzgib. 234. that this text of Littleton had never been contradicted. Hargrave’s Notes on Co. Litt. 265. a. n. 212. The same doctrine was recognized, by the supreme court of *257New-York, in McCrackin v. Wright, 14 Johns. Rep. 193. wherein it was decided, that no title, not in esse, would pass by a deed of bargain and sale and quit-claim, unless it contain a warranty, in which last case, it will operate as an estoppel. And in Davis v Hayden & al. 9 Mass. Rep. 514. it was decided, that nothing passes by a conveyance of land, of which the grantor is only heir apparent.
3. Is the plaintiff estopped to claim against his own deed t This question is already answered, by the citations from Littleton, sect. 446. and the case in 14 Johns. Rep. 193. “If there be a warrantie,” saith Lord Coke, (1 Inst. ubi supra) “ annexed to the release, then the sonne shall be barred ; for albeit the release cannot barre the right, for the cause aforesaid, yet the warrantie may rebut and barre him and his heirs of a future right ” But the deed in question, is a mere release or quit-claim, and contains no warranty, express or implied.
I, therefore, do not advise a new trial.
Lanman and Daggett, Js., were of the same opinion. Hosmer, Ch. J,, having heard the case argued in part only, gave no opinion. Brainard, J. was absent.New trial not to be granted.