(Babb v. Clemson.)

on the issuing docket, might be evidence of the fact in a case requiring proof; as of the day when a writ issued to save the statute of limitations, on a replication of assumpsit infra sex annos; or it might be shown on the trial as evidence that the defendant had shown a cause of action subsequent to its commencement when the jury would be directed, to find against plaintiff, or he become non-suit. Though in the formal making up of a record, the date of the time of actually issuing process is never inserted, because it is no part of the record, and the præcipe is not, to this purpose, a part of the record, courts will use it to advance justice by amending writs agreeably to the præcipe, but never to defeat a judgment. But this very point was settled in the court of errors and appeals. Skinner

v. Robeson. And the verdict would cure it, for it could not be found for the plaintiff but on evidence of a cause of action, a taking before the action brought. 4 Mass. 264. But for the other caus e, the judgment is reversed, and a venire facias de novo awarded.

Judgment reversed, and a venire facias de novo awarded.

[PHILADELPHIA, DECEMBER, 29, 1823.]

CARTER and another against M'MICHAEL.

IN ERROR.

Testator devised to his son E. C. two tracts of land to hold to him and his assigns for and during the term of his natual life, he making no waste or destruction of the timber thereupon and paying the testators daughter twenty pounds within two years after his wife's decease; and from and immediately after the decease of E.C. he gave one tract to his two sons J. and D. their heirs and assigns as tenants in common; and the other tract to the heir male of the body of E. C. lawfully begotten, and the heirs and assigns of such heirs or heir male forever, and for want of such heirs male to the two sons of J. and D. in fee, as tenants in common. E. C. suffered a common recovery. Held that by virtue of this devise E. C. took an estate tail in the second tract which was barred by the recovery.

IN the Court of Common Pleas of Delaware county an ejectment was brought by the plaintiffs below Joseph Carter and Daniel Carter, plaintiffs in error against John M'Michael, and the following case was stated for the opinion of the court, to be considered as if the facts were found by a special verdict. Judgment was there entered for the defendant and removed to this court by writ of error. Abraham Carter on the 29th of December, 1787, made his last will and testament, and on or about the 1st of April, 1789, died without altering or revoking the same, and it was afterwards duly proved. At the time of making the said will and of the death of the said Abraham Carter, he was seized in fee of 50 acres of land situate in the township of Chester, then in the county Chester, now in the county of Delaware, being the premises in the declara

(Carter and another v. M'Michael.)

tion mentioned. By his said will he devised the same 50 acres in manner following:

Item. I give, devise and bequeath unto my son Edward Carter, all that tract of 50 acres, (the meadow aforesaid only excepted) devised to me by my brother Edward Carter deceased, which descended to me by the death of our sister Lydia Carter, to whom the same was granted and conveyed by Robert Wade and Lydia his wife by deed of the 11th of 7th month 1684, and all that other tract of 50 acres of land devised to me by my said brother Edward Carter, which he purchased of Thomas Baldwin, the 18th of April, 1719, to hold to him my son Edward and his assigns for and during the term of his natural life, he making no waste or destruction of the timber thereupon, and paying thereout to my daughter Agnes, the sum of 20 pounds in gold or silver money within the space of two years next, after the decease of my wife; and from, and immediately after the decease of him my said son Edward, I give and devise the 50 acres descended as aforesaid by the death of our sister Lydia, (excepting the aforesaid meadow,) to my said two sons Joseph and Daniel their heirs and assigns forever as tenants in common; and the aforesaid other 50 acres heretofore purchased of Thomas Baldwin I give and devise to the heirs male of the body of my said son Edward, lawfully to be begotten, and the heirs and assigns of such heirs, or heir male for ever, and for want of such heirs male then to my said two sons Joseph and Daniel their heirs and assigns for ever as tenants in com

mon.

The last mentioned 50 acres purchased of Thomas Baldwin, are the premises mentioned in the declaration.

The testator devised other estates to his said two sons, Joseph and Daniel, and also all the rest, residue and remainder of his estate real, personal or mixed, &c, to his two said sons Joseph and Daniel in fee as tenants in common.

Upon the death of the said testator, Edward Carter entered upon the premises in question under the said will and was seised thereof.

Of the Term of April, A. D. 1795, a proceeding in the form of a common recovery, was had of the said 50 acres in the Common Pleas of Delaware county, wherein William Graham, was demandant, and the said Edward Carter was tenant to the præcipe by which the same became vested in the said Edward Carter, in fee.

On or about the 1st day of May, A. D. 1821, the said Edward Carter, died, having first made his will in writing, by which he de-. vised the said 50 acres in fee to his daughter Ann Roberts who intermarried with the defendant, who was in possession of the said premises at the time of bringing this action.

The said Edward Carter, never had any heirs or heir male of his body lawfully begotten, but had two daughters who were living at the time of making the said Abraham Carter's will.

(Carter and another v. M'Michael.)

The plaintiffs in this ejectment are the same Joseph and Daniel mentioned in the will of the said Abraham Carter.

Kittera for the planitiffs in error, now contended that Edward Carter took under this will an estate for life remainder to his sons in fee as tenants in common, with an executory devise to the plaintiffs Joseph and Daniel Carter, as tenants in common in fee, in case Edward Carter died without issue then living, and referred to Hoge v. Hoge, 1 Serg. & Rawle, 144. Pow. on Dev. 358. Harg. Law Tracts, 506. Archer's Case, 1 Rep. 66. 1 Fearne's Cont. Rem. 228, 242, 287, (5th ed.) Lodington v. Kyme, 1 Ld. Ray. 203. 4 Bac. ab. 250, 777. Findlay v. Riddle, 3 Binn 139. Dunwoody v. Reed, 3 Serg. & Rawle, 435.

B. Tilgman, contra, argued that Edward Carter, took an estate tail and by the recovery the fee simple vested in the defendant. He cited Robinson v. Robinson, 1 Burr. 50. Fearne, Cont. Rem. 283, (4th ed.) Morris v. Legay, cited 5 T. R. 304. Dodson v. Grew, 2 Wilson, 422.

The opinion of the court was delivered by

TLGHMAN, C. J. This case depends on the will of Abraham Carter, and the question is, what estate passed in 50 acres of land devised by the testator, to his son Edward Carter. The following is the material part of the will. (His honour here read it.) There is no doubt that the testator intended to give an estate for life to his son Edward; because he has said so expressly, and has moreover restrained him from destroying the timber, which he would not have done, if he had intended to give him the inheritance. But if it should appear that the testator had likewise another intent, inconsistent with an estate for life, then in order to effectuate the will, the court must consider which is the main intent and having ascertained that, the intent of minor importance must give way. This is the rule established in the case of Robinson v. Robinson, 1 Burr. 38, and there is so much good sense in it, that it has never been disputed. Had the testator any other intent then, and what was it? He evidently had another in'ent, viz. that all the male issue of Edward should take, and the estate should not go over, while there was any such issue in existence. That intent can be effected by giving an estate in tail male to Edward, and in no other way. If Edward took for life, and his heirs male by purchase, the estate would go after his death, to his eldest son, in fee, but that would defeat the testators intent, which was, that all the sons should take. There are no words which would justify a construction, that if there were several sons, they should take as tenants in common, in fee. The estate is given, after Edward's death, to the heirs male of his body lawfully to be begotten, and as there can be but one heir male at one time, the eldest son must take it. Besides there was an intent, that after failure of issue male

(Carter and another v. M'Michael.)

of the body of Edward, indefinitely, the estate should go to his brothers, the plaintiffs in fee, as tenants in common. But this intent cannot possibly be effected in any other way than by giving Edward an estate in tail male, by virtue of which the whole would go to each of his sons in succession, and after a total failure of issue male, whenever it might happen, the remainder of the whole would vest in possession in the testators other sons Joseph and Daniel. There are no expressions which limit the failure of heirs male of the body of Edward, to the time of his death, or to any other particular time. If there had been, the case would have been very different. It is no wonder, that a testator, sitting down to make his will and ignorant of those technical difficulties, by which the most experienced professsional men are frequently embarrased, should attempt to create estates which are incompatible. And in nothing would he be more apt to fall into error, than in a wish to restrict the first taker, to an 'estate for life, with an inheritance of some kind, to his children. The history of wills shows this to be the case. And accordingly, the courts have frequently been called upon, to mould these inconsistent designs into a form which might give efficacy to the most important, or governing intent, for that, indeed, is truly to effectuate the will. I will cite a case or two, to show, that the construction I have put upon this will, is supported by the opinions of different courts, in cases very similar. In Dodson v. Grew, 2 Wils. 322, the devise was, "to A. for life remainder to the issue male of his body lawfully to be begotten and the heirs male of the body of such issue male, and for want of such issue male, over." Held, that A, took an estate in tail male. That case differs from the present, in this, the words of limitation superadded to the devise to the issue male of A. are in tail; whereas in the case before us, they are in fee. But we shall see that in the case next to be cited, that difference was disregarded. In Morris v. Le Gay, decided in the year 1720, and cited by Lord Kenyon, in Down v. Puckey, 5 Durn. and East. 324, the devise was "to A for life, remainder to the heirs of the body of A, and their heirs, and if A. died without such issue of her body, then over." This comes very near to our case, and it was decided, that A. took in tail. To these cases, I will add, the opinion of Mr. Fearne, which from his well established reputation, is entitled to great consideration. "If the words be, heirs, or heirs of the body, &c. in the plural; in that case, even words of limitation engrafted on them, if not inconsistent, with the nature of the descent pointed out by the first words, will not convert them into words of purchase, (p. 180, 7th ed.)" and again, in page 183, he says, "where the first words give an estate tail general, and the words engrafted thereon, are words serving to limit the fee, it seems by the general and latter opinion, the annexed words of limitation are not to be attended to, as may be seen by the above cited cases of Wright v. Pearson, Amb. Rep. 358. Goodright v. Pullyn, ?

(Carter and another v. M'Michael.)

Lord Raym. 1437, and King v. Burchell, Amb. 379." I have no doubt therefore, that Edward Carter, took an estate tail, which was barred by the common recovèr. I am opinion, that the judgment should be affirmed.

Judgment affirmed.

[PHILADELPHIA, DECEMBER 29, 1823.]

BEAUMONT against WOOD.

IN ERROR.

If the defendant in replevin makes cognizance as bailiff, and states that A. B. held the lands as tenant under a demise at a yearly rent and rent accrued, and plaintiff replies non demisit and no rent in arrear, the plaintiff may without previous notice of special matter give in evidence, that A. B. took the lands for a certain period, and paid the rent in advance.

ERROR to the Court of Common Pleas of Chester county, in a replevin brought by Joseph Wood, the plaintiff below and defendant error, against George W. Beaumont, for 300 dozen of wheat and rye in the sheaff.

The defendant below made cognizance as bailiff of Thomas McKean, acknowledged the taking on the premises, and said, that one Benjamin Vogdes, for one year next before the 25th of March, 1820, held the lands as tenant, under a demise at the yearly rent of 300 dollars, during which time the rent distrained for accrued, which remained due. The plaintiff replied no rent in arrear, and non demisit, and issues were joined.

The facts were, that judgment was entered on the 6th of April, 1818, in favour of T. M'Kean against Jesse Vogdes and John George, on a bond and warrant of attorney, dated March 25th, 1818, in the penalty of 4666 dollars 68 cents, conditioned to pay 2333 dollars 34 cents. Afi. fa. was issued on the 13th April, 1819, returnable to May, 1819, upon which the sheriff returned, levied on lands and condemned. A venditioni was issued to August Term, 1819, on which the sheriff returned the land and premises sold to T. McKean.

It appeared in evidence that Benjamin Vogdes occupied the property during part of the year 1818, and the whole of 1819, and left it in the spring of 1820. He said after the sale, in August, that he was to pay 400 dollars for the first year, and 300 dollars for that year. When called on for the rent on behalf of McKean, and told he would be indulged till after the election, he said it did not suit to pay till spring. Vogdes said he had no lease. He went into possession some days after the 25th March, 1818, and left the premises on the 25th March, 1820. Wood came to them in the spring of 1820, and had been there ever since.

VOL. X.

3 I