"WESTCOTT, J.,
delivered the opinion of the court..
The question in this case is, what estate and interest Johanna E. Eoz is entitled to in the one-half of the prop[158] erty coming to her former husband, Daniel W. Hart, from inis-father’s estate.
To determine this question, we are to construe the instru•ment set forth in the statement' of the case, as it is under-this, instrument that she claims. Upon the part of the appellants, it is insisted .that the instrument cannot operate as h, .feoffment at common law to pass a freehold estate to the wife upon the happening of the future event of marriage, because a freehold estate could not thus be created to commence mfutv/ro, and that the effect to he given to the instrument was that of articles of marriage settlement; that under this instrument, giving it that effect, “ the estate is conveyed to the wife for life, (no estate being limited to her,) remainder to the issue of the marriage, reversion to the grantor if there be no issue; that the word heirs here is a word of purchase, operating to give the estate to the heirs (that is, issue,) originally, and as the persons in whom the estate is considered as commencing. It is not a word of limitation operating to expand the estate in the ancestor so as,to Jet the heirs described into its extent, and entitle them to take derivatively through or from her (Johanna) as the toot of succession or person in whom the estate is compaencing.”
The position of appellants just stated is inconsistent with another position which they take in reference to this • instrument. They insist that the term “parties,” in the habendwn of the instrument, means the husband and wife, the persons who executed it. If this be so, and the estate thus limited in the habendum controls, and such an estate can be thus limited, then the same beneficial interest which passes under the deed to the wife would pass to the husband, and hence the wife could not have an absolute life estate in the whole property.
On the other hand, appellees contend that the instrument was effective as a formal disposition, (1 Sch. & Lef., 87,) that the estate which passed, under the deed was an estate [159] in fee; that upon the marriage, the legal title either vested in the wife under our statute, or if this result did not follow and the deed was ineffectual to pass the legal title to the wife, then the husband would be treated as a trustee during coverture, and ripon the death of the husband, the wife surviving, a court of equity would make the deed effectual to pass such an estate to the wife. It was no doubt the purpose of the parties by this instrument to settle the property in accordance with an antecedent agreement, and not to reduce to writing the terms of such agreement. This is evident from the preamble or. recital of the instrument. If it fails to have this effect, it will be the result, not of a want of intention that it should have this effect, but the result of the application of the rule of the common law that an estate of freehold must take effect presently, either in possession or remainder; the estate under this deed not taking effect presently because it was to take effect only on the marriage, and it could not take effect in remainder as there was no precedent particular estate to support the remainder—no estate between the date of the conveyance and the marriage. This instrument purports to be an ante-nuptial settlement, and not articles of agreement embodying the terms of a settlement to he made after marriage. The rule as stated by Mr. Atherly is, “ that it is only in cases where the parties themselves evidently considered the instrument in the light of articles, and intended a future act, that courts of equity will so consider it. Where they clearly intended it to operate as a final, complete settlement, it must always be looked upon as such.” Atherly on Marriage, 123. If such an instrument can be made effective to pass a freehold estate upon the happening of the marriage, that is an end of this question, and we have only to determine what estate passes under the terms used, being controlled in the construction of those terms by the rules obtaining in a court of equity in like cases.
Such an instrument, viewed as a feoffment at common [160] law, could not be sustained; but such an instrument, having a marriage consideration, has been universally sustained as a covenant to stand seized, although, generally speaking, a settlement should not be made by covenant to stand seized. In such a case as this, where there is a consideration for raising a use, the instrument is construed as a covenant to stand seized to the use of the person specified, and the estate passes, not by feoffment as the deed says, but by virtue of the statute of uses and “ ut res magis mleat quam pereatf and the estate which the party is entitled to is such estate as was intended, if consistent with the rules of law. 2 Wilson, 77; Shep. Touch., 83; 2 Ves., jr., 226; 1 John. Cases, 96; 20 John., 87; 22 Wend., 142 ; 32 Maine, 332; 3 N. H., 452 ; 15 N. H., 393; 4 Mass., 136 ; 7 Mass., 384; 22 Pick., 380 ; 4 Desau., 627; 2 Hill Chy., 3.
We have thus only to determine what estate was intended to pass under the terms used in this instrument, being controlled in our construction by the rules obtaining in a court of equity in like cases.
The preamble or recital of this instrument sets forth substantially that the husband had, anterior to its execution, agreed to make a liberal, certain and sure provision for the support and maintenance of his intended wife; that the property to be secured to his intended wife was not to be subject to or liable for his present or future debts in any manner; and an agreement and understanding between them that he was to “ make over ” to his intended wife and her heirs one-half of the property to which he was entitled then or might thereafter become entitled to from his father’s estate. It is plain that the legal effect of the. terms used here determine the estate agreed to be made over to be a fee simple, and that there is no expression of an intention to provide for the issue of the marriage. The only intention expressed, the only matter agreed upon, was to provide for the wife. The grant in the premises of an estate to the said Johanna F. and her heirs, is the grant of an estate of [161] inheritance, a fee simple. This really is all that is perfectly clear in the instrument.
• When we reach the hdbmd/iinn, a difficulty, a doubt arises. Construing it as appellants do, it is inconsistent with what precedes. It has inconsistent provisions in itself. The habendum is “ to hold for the use, benefit and maintenance of all the said parties herein mentioned ;” and then follows a clause not securing a benefit or passing an estate to the heirs, but providing that in the event there are no heirs, then habendum, “ to the sole use, benefit and maintenance of the said Johanna E., and to and for no other use, intent of purpose whatsoever.” Appellants insist that the word parties in the first clause of the habendum means Daniel W. Hart and Johanna E. DeWall. They also insist that the word heirs in the next clause means issue of the marriage, and they insist that the estate which the wife takes under the deed is a life estate.
It is plain that the wife, under either of these clauses, took no life estate, giving the words the construction contended for.. In the one case, the husband would take an equally beneficial interest with the wife; and under the other, the wife would take no life estate in the whole property, except upon the happening of the contingency, the failure of issue. Any beneficial interest in the subject matter of the grant remaining in the husband, is inconsistent with his expressed intention in the previous part of the deed, to the effect that the estate was to be limited to Johanna and her heirs, and that the property was not to be subject to his debts, either present or future. On the other hand, giving the word heirs in the last clause of the habendum its strict legal signification, this, clause would amount to a grant of an estate upon a condition which could not be known or determined until after the time during which the estate was to be enjoyed had expired, a grant of a life estate to a person upon condition that he has no heirs, when [162] you cannot determine whether he has any heirs until after his death, nam “ nemo est heeres wi/oentis.”
Something was said in argument in reference to giving those words in the habendum a construction which would limit the estate granted in the premises to certain uses, making the party Johanna the feoffee to such uses as are declared in the hdbend/um. "We do not think there was any such purpose.
The estate which the parties intended to pass under the deed was not a statute use. It was manifestly an estate at common law, and the words for the use, benefit and maintenance, &c., only served to show in how ample and beneficial a manner the feoffee was to take the estate granted. 1 Cruise, 429, 30, 31. The habendium should have commenced by a limitation of the estate to the grantee in such manner as was intended. This was, however, omitted, no doubt through want of knowledge, and what there is in it is nothing more than certain words to show the extent to which the estate previously granted was to be enjoyed by the grantee.
According to the construction contended for by appellants, the effect of the hdbend/um here is to control the previous grant in the premises, and an estate “ is conveyed to the wife for life, remainder to'the issue of the marriage.” It is impossible to construe this deed in such way that the issue of the marriage are to derive such an estate under it, for even if you were to insert the words “ issue of the marriage,” instead of the word “ heirs,” in the deed, no such estate would thereby pass to them under it.
Considering this last clause in the habendum with reference to the manifest intention of the parties to secure a permanent benefit to the wife, and giving the word heirs here the meaning contended for by appellants, the wife would not even have a life estate, except in the event there was no children or issue of the marriage. A life estate, upon the condition that it was to vest only in the event the wife had [163] no children by the intended husband, could never be called a “ liberal, certain and sure provision ” for her support. We have no idea that such a thing as this was intended. On the contrary, if we were permitted to enter the field of speculation, uncontrolled by the terms and legal effect of the deed, we would conclude, from the peculiar use of the word “ parties ” and the word “ heirs,” that it was the purpose of the parties to secure some benefit to the issue; what benefit, however, we would be unable to determine from anything before us, and we would also be of opinion that the purpose of the last clause of the habendum was to vest a fee simple, rather than a life estate, in the event there was no issue, the parties no doubt conceiving that the words there used passed such an estate.
It certainly would be unauthorized in a deed of this character to give an arbitrary construction to it, unauthorized by its terms, contrary to their legal effect, even when modified as suggested, and consistent with no apparent intention, in order to pass an estate in remainder to the issue of the marriage. This would not be the case, even if the instrument being construed was articles with similar provisions, instead of a final settlement and disposition.
Mr. Atherly remarks that, “ so strongly do courts of equity lean in favor of a strict settlement,” (that is, a settlement limiting a life estate to the parties, with remainder to the issue), “ that if the articles even limit the estate to the husband or wife in fee, yet if it appears that the object must have been to make a provision for the children, the articles must be executed in strict settlement.” Atherly on Marriage Settlements, 91-95. This is stating the rule strongly in favor of the issue. Can it be said in this case that “the object must have been to make a provision for the children ?” We think not.
There is no doubt that courts of equity go very far in construing contracts of this character, whether executory or executed, whether in the shape of articles or final settle[164] ments, to give them effect, so as to secure a benefit to the issue of the marriage, when such construction is consistent with the rules of law in reference to estates ;• but there is nothing in the adjudged cases which would justify us in creating an estate in remainder to the isssue under this instrument, when, according to no fair construction, is there an estate in remainder or an estate tail passed to any one.
- Whenever, according to their strict legal signification, the marriage articles gave the parents an estate tail, courts of equity in England, as a general rule, executed the articles in strict settlement; that is, whenever the articles limited the estate to the settler and the hews of his body, instead of permitting a fee tail to pass, the estate was limited to him for life, with remainder to the first and other sons in fee tail. 1 P. Williams, 622; 1 Ves., 238 ; 2 Atk., 39 ; 2 Bro. P. C., 122; 1 Bro. C. C., 384 ; 3 Atk., 371.
The reason was, because if an estate tail passed, a recovery might be suffered and the estate aliened, thus depriving the issue of any benefit. As remarked by Lord Chancellor Hardwicke, that on a settlement for valuable consideration, to make the father tenant in tail would be nugatory, and the same as making him tenant in fee. Where, however, the husband’s estate was settled on the wife and the heirs of her body, there an estate tail was limited to the wife, because she was prohibited by statute from discontinuing, aliening, or suffering any recovery of an estate tail derived through settlement by the husband.
While we do not propose to say what effect should be given to an instrument of this kind passing an estate tail, we remark that our statute provisions in reference to estates tail prevent the existence of many of the evils which these decisions remedy; but, however this may be, there is nothing in the case which brings it within these decisions. Rone of the decisions go to, an extent which would justify us in giving this deed, which, according to everything that is definite or certain in it, was intended to pass a fee simple, a con[165] struction which would vest an interest in remainder under it in the children.
The great difference between this case and the cases cited by appellants, is manifest. The ease in 2 Piere Williams, 341, was an agreement by marriage articles that the testator would convey lands to the heirs of the body of his niece, Mary Bennett, by her said husband, and to their hews. It appeared from the preamble that the purpose was to advance the issue of the marriage. The words, heirs of the body of the niece by her husband, were “ construed children.”
The instrument under consideration in the case in 3 Strob., 71, limited' the estate to the joint heirs of the husband and wife. The subject matter was personal property, in conveyances of which the word heirs is not necessarily used.
The court held that the term joint heirs could not, under the circumstances of that case, there being children then in being, be held applicable to any other persons than the two children then in being, and that they took to the exclusion of the after-born children. Neither side denied that the intention of the deed was to vest a beneficial interest in the issue of the marriage. The only question was, whether the interest vested exclusively in the children then in being, or in all the children, including those m esse, as well as those to be begotten.
The case in 4 Desau. was an executory devise. The devise was, “ 1 give and bequeath to my son, John Lee, certain lands and negroes (enumerated in the will), to him and his heirs;” and in a subsequent clause, after other bequests to other children, the will directed, “ If either of my children should die with ” (meaning without, as was agreed by counsel), “ an heir, then his share shall go to the rest of my children.” It was not questioned that the word heirs here meant children. It was used in the same sentence as synonymous with it.
[166] There are clear distinctions and differences between this ease and all the cases which we have been able to examine.
These cases construe the word heirs, under certain circumstances, to mean children, and then pass such an estate as by this substituted meaning is limited to the children. In this case you can make the substitution, and no such result follows as to create a remainder in their favor. Besides, as we have before remarked, the latter portion of the habendum (although the terms used would pass only a life estate, and that only in case there was no issue), was no doubt, in fact actually intended to pass a fee to the wife in one-half of the property in the event there were no children, which is the fact presented by the record.
The issue of the marriage are no parties to this contest. The husband is dead, and there can be no such issue. "While courts of equity will give a liberal construction to the terms employed in instruments of this character in favor of the issue, when it is possible that the issue may be benefited upon the presumed intention of the parties (when there is room for a presumption to operate,) to provide for the issue, yet we cannot see why this rule, which is the creature of a court of equity, originating under a state of facts where a benefit may accrue to the issue, and to produce that result, should be extended to a case where the party who seeks to vary the terms of the instrument, and who is to derive a benefit, is one who claims through the husband, as against the wife, such an one being not a child, and the circumstances such that no issue of the marriage can ever derive a benefit. 1 Baldwin C. C. Rep., 489. The reason ceasing, the rule should cease. Upon 'what principle would a court of equity favor one rather than the other of these parties ?
Estates limited to trustees to preserve contingent remainders from the power of the tenant of the preceding particular estate, were introduced, in order to secure in family settlements the provisions intended for the benefit of the issue of the marriage against being defeated by the parents, the [167] tenants for life, and courts of equity have always deemed the-joining in a conveyance by such trustees to destroy the contingent uses or remainders a breach, of trust. If, however, there was no issue of the marriage, and a subsequent remainder to the right heirs was limited, and a collateral relation only was affected by such act of the trustees, courts of equity have refused to punish the trustees. The reason of the difference is, that in one case the court considers the issue the object of the settlement and within the consideration, while the remainder to the right heirs is merely voluntary. 1 P. Williams, 359-387; 1 Eq. Ab., 385 ; 2 Cruise, 384.
While it is true that the parties here do not claim under the deed by way of remainder to the right heirs, yet they are not the issue of the marriage; and the same reason for the distinction taken in the cases above, exists for the difference we have stated in the rule of construction when the issue seek a benefit, and where collaterals or devisees under the hushand’s will, not being issue of the marriage,- are seeking aid from a court of equity.
The effect sought to be given to the hdbencktm here, is neither to qualify, explain or enlarge the premises within the meaning of the authorities. 4 Cruise, 433-4.
To pass a life estate by the hdfomditm, would be repugnant to the premises, and it is the precise ease stated by Blackstone as being inidmissable. 2 Black., 297; 2 Bac. Ab., 545; 4 Cruise, 433-5. Where the estate granted in the premises is a fee, and the estate limited by the hdbmd/wm is a life estate, (which really is not the case here), a fee passes. The Jidbendmn is inconsistent with the premises— inconsistent with the expressed intention of the parties, and uncertain. It is our opinion that it was the actual intention of the husband, and the understanding of the wife, that the husband would divest himself of his entire estate in one-half of his property—that this was the purpose in thus framing the premises of the deed. The word parties in the [168] habendum, we believe, was intended as a substitute for the words Johanna and her heirs in the premises; but from the peculiar phraseology of this and. the subsequent clause of the habendum, we are inclined to the opinion that the parties thought the effect of such a use of the terms was to give the estate first to the wife, and at her death, to the children; and from the last clause of the habendum, we think it was the purpose to pass a fee simple to the wife, in the event there were no children. To pass a fee simple to the wife, under the circumstances, is therefore consistent, in our judgment, with the application of the rules of construction, as well as the actual intention of the parties.
Only one other question remains to be disposed of in this case : The intended effect of this deed was to pass an estate to the wife upon the happening of the marriage.
Under our statute, married women may become seized or possessed of property, real or personal, by bequest, demise, gift, or purchase, during coverture, subject to certain limitations. The standing of the wife, under such a deed as this, is that of a purchaser for value, and we can see no reason why, under our statute, coverture could have operated to have prevented any interest passing which should pass under the deed. But this is immaterial; nor do we decide this point, as a court of equity will protect her by making the husband a trustee, if necessary, or devise some other method to secure to her such beneficial interest as passes under the deed. The precise case is considered in 2 Hill’s Ch. Rep., 6. There the husband, reciting the intended marriage, undertook to convey the property directly to the wife. The court say, Ci To give effect to this contract at law, the conveyance ought to have been to some third person, as trustee for these uses, but equity presumes that done which ought to have been done; and in adjusting the rights of the parties in this court, we must suppose that the intended husband and wife had joined in a deed, conveying the property to some third person as trustee.”
[169] The decree of the Chancellor being conformable to the views expressed in this opinion, it is affirmed, and the case is remanded for further proceedings in execution of the decree, which were suspended by the appeal. The parties, appellant and appellee, will each pay one-half of the costs attending this appeal.
3Mr. Justice Hart, being disqualified, did not hear this .cause.