By the Court.
Lumpkin, J.
delivering the opinion.
[1.] Our first impressions, as to the Law of this case, were very strong, and subsequent -examination and reflection have tended only to confirm them.
"We are clear, that under this marriage settlement, Mrs. Cook took an absolute foe in all the property, real and personal, thereby conveyed; and consequently, that the remainder over, is void; inasmuch as a fee cannot be limited on a fee.
By the laws of this State, the word “heirs” is not necessary to create an estate of inheritance, by deed; for, by the Act of 1821, “ all gifts, grants, feoffments, bequests, devises and conveyances of every kind, whatsoever, of real or personal property, thereafter made or executed, shall be held and construed to vest in the person or persons to whom the same are made or executed; an absolute unconditional fee simple estate, unless it be other[462]*462wise expressed, and a less estate mentioned and limited in such gift, grant, feoffment, bequest, devise or conveyance”; (Pr’s Dig. 246, ’7.)
While by the Common Law, therefore, “ heirs” is the only word that can be employed in a grant, to pass an inheritable fee; under this Statute, words of restraint must bo added, in order to carry -a less estate.’- . '
* [2.] We hold it to bean incontrovertible rulé, then, that whenever an estate is given, in Georgia, either by deed or will, to a person, generally or indefinitely, with the unlimited power of disposition annexed, that it invariably vests the absolute fee in the first taker; and that neither a remainder or an- executory devise, can be limited over, upon such an estate. A remainder cannot, because no remainder can be limited on an estate of inheritance. And an executory devise cannot, because indestructibility is an essential element of this latter estate ;■ whereas, the unlimited power of disposition, in the first taker, is incongruous with this idea ; it is ipso facto, a destruction of the executory limitation, whether the power be exercised’ or not. ■ ■ ' . .
[3.] And the only exception to the, rule, thus broadly stated, is, whore the donor or testator, gives to the first taker, an estate for life only, by certain and express wordsand annexes to it a power of disposal. In that particular and special case, it has been held, and the better opinion seems to be, that the donee or devisee for life, will not take an estate in fee, notwithstanding the distinct gift of the power of disposition. And by carefully marking this distinction, there will be found to be no confusion or collision in the authorities, upon this subject. (Jackson vs. Robins, 16 Johns. 537. Jackson vs. Bull, 10 Johns. 19. Ide vs. Ide, 5 Mass. R. 500. Jackson vs. Delancy, 13 Johns. 552. Attorney Greneral vs. Hall, Fitz. 314. Flanders vs. Clark, 1 Ves. Sr. 9. (In this latest case, the doctrine of the Goldsmith’s Company against Hall, in Fitzgibbon’s Reports, is fully sanctioned.) Pushman vs. Filliter, 3 Ves. 7. Lord Vicount Fauconborg and Wife vs. Fitzgeral and Wife, Lord Aston and others. 3 Bro. Par. Cas. 543.)
[463]*463[4.] But, it is contended by counsel for the defendant in error, that, admitting the rule, and that the words of this settlement gives the fee under it to the wife, that even then, it would be the duty of the Court, to cut doAvn the fee into a life estate, in order to support the limitation over, and thereby effectuate the general and paramount'intent of the parties. That technical words, it is true, are commonly to be understood in their legal sense ; yet, that where the intent is manifest, it will even control and over-rule the technical sense and legal operation of the terms employed in the conveyance.
This was the identical argument used in the leading case, of Jackson vs. Robins, in 16 Johnson, and is that which is always pressed upon Courts, in like cases. Mr. Yan Burén, then Attorney General of New York, in reply, asserted, that no authority could be produced, in which a fee simple is given by apt and appropriate words, to the first taker, with the addition of an absolute power of disposal; and yet, the fee has been restricted to a life estate, by mere implication. The Court, in its opinion, appeared to acquiesce in this assumption, And after the most industrious and laborious search, we can find no case which reaches that point.
In the present instance, there was not only a reservation of the whole interest in the property, which Miss Walker possessed, but to this is super-added the unqualified and unlimited power to sell, dispose of or give away the same, or any part thereof, by deed, will or otherwise, as .she might think proper.
“When a principle is settled”, says Lord Mansfield, (Cowper’s Rep. 355,) “no conjecture or private imagination can shake a rule of law which must govern”.
So that, although the intention be clear, that so much of .this property as remained undisposed of, at the death of Miss Walker, should go first to her children or grand-children, 'if she left any living; otherwise, to the complainants' in the Bill; here a stubborn rule of law interposes, which controls that intention. And the mother and brothers and sisters, shall talco nothing, although Miss Walker left neither children nor tho representatives of such; and although the whole property re[464]*464mained in Miss Walker at her death. And for the reason, that if it was the intention of the instrument to give an absolute and unlimited estate to Miss Walker, the other intention, to dispose of a remainder, is. inconsistent with the first intention, and cannot prevail. Suppose the estate of Miss Walker had consisted of $1000, the whole of which she had appropriated, could there be any residue subsisting afterwards, in which a remainder could be created ? And yet, stripped of all adventitious circumstances, this is the exact case before us.
In all the cases which I have examined, from Lord Oohe’s day to the present time, I must say, that the one under consideration furnishes the slightest pretence; for cutting down the fee simple, which vested in Miss Walker;, under this settlement, to a life estate. As an example and illustration, take the case of John Smith, T. vs. Bell and Wife, (Martin & Yerger, 302,) and see how much more strongly the words there used, than here, imply a limited estate in the first taker. And yet, it was held, in that case, that the devise over, was void. The words were those: “ I give and bequeath to my son, Jesse-Goodwin, my young sorrel gelding, and one feather bed, to be delivered to him by my executrix, after my decease. Also, I give to my wife, Elizabeth Goodwin, all my personal estate, whatsoever and wheresoever, and of what nature, and kind,, aftd quality, soever, after payment of all my just debts, legacies and funeral expenses ; which personal estate I give and bequeath to my wife, Elizabeth Goodwin, to and for her own-use and benefit and disposal, absolutely. The remainder of said estate, after her decease, to be for the use of the said Jesse Groodwin”.
Here is an express devise of the remainder, in the last sentence of the last clause of the will, to Jesse Goodwin; but the Oourt said it could not have effect; because, it was inconsistent With the absolute power of disposition, for her own use, conferred on Elizabeth Goodwin, the first taker. Cases, to the same effect, might be multiplied to an indefinite extent, both from the English and American- Eeports. But it would be an act of supererogation, to pursue this point any further. This-[465]*465current of decisions is not now questioned in any Court, nOr by any author.
Surely it cannot be necessary, at this day, to show that no intent, however manifest, can contravene the positive rules of law. Had the property been given to Miss "Walker, for life only, with remainder to the heirs of her body, and in default of such heirs, to the present complainants, this being an estate tail, no one would doubt but that the fee would vest in Miss Walker, notwithstanding she took a life estate, only, by the terms of the instrument; and this, too, simply because the intention must yield to the unbending rules of the law, technical though they may be. What power has this Court to prevent the same result, in this instance ? That the creation of an estate tail, by deed or will, shall vest the fee in the first taker, is not a more inflexible doctrine, than that an indefinite conveyance, with unlimited power to give, sell or devise, shall produce the same result.
But, it has been asked, what object could Miss Walker have had in making this settlement? We answer—In the first place, to protect the property from the marital rights of Elijah Cook, her intended husband; and secondly, to secure to herself, not only the usufruct, but the power of disposition over it. These were motives sufficiently operative, to influence her. to enter into this contract.
But, it is said that this is a trust estate, and that consequently, the principle we have been endeavoring to establish, does not apply. Wherefore ? Ingenious counsel have failed, with all their industry, to assign any reason, or produce any authority, which would make a distinction. We apprehend none exists.
Again, it is argued, that Mr. Cook is estopped by his deed, from disturbing the title of the complainants. The defendant remains passive. He is in possession of the estate. The complainants seek to recover it out of his hands, as remainder-men, under this marriage settlement. But when they .exhibit the evidence of their title, it turns out that the limitation over, [466]*466to them, in this property, is void ; the absolute .and unqualified interest in and to the same having been previously .disposed of to another. Nothing- remaining, therefore, to the complainants, they have no standing in Court.
[5.] Had the Judge the right to sanction the supplemental bill, at Chambers ? We think he had. If the Judges of the Superior Courts have authority to sanction original bills during vacation, it would seem to include, necessarily, the power of sanctioning a supplemented bill, which is in the nature of an amendment to the original. It must he understood, however, that it is done, with the right of exception to the opposite party.
[6.] On an ex parte application, to filo a supplemental bill, the Chancellor examines the question, so far as to soo that the privilege is not abused, for the purposes of delay and vexation to the defendant. Eager vs. Price,(2 Paige, 333.) And in a doubtful ease, the Ohanceller may direct notice to ho given, beforehand, of the application to the defendant. (Ib.)
[7.] As to the third ground of assignment, that is, the power of the Court to compel the defendant to appear before him at Columbus, to answer to interrogatories, with a view to dispossess him of the property in controversy, and to place it in the eustody of a receive!-, wo think the Judge had no such right. Thq case was pending in Harris county; the defendant resided there ; and in view of the constitutional privilege accorded-to every citisen,. of having his rights adjudicated in the county where he lives, we hold that the investigation should have been had m Harris, and not in Muscogee. Parties have rights which may not yield, even to Judicial convenience.
[8.] The question has been argued at great length, as to the Chancery powers of our Superior Courts. In my humble opinion, the inquiry is rather curious than profitable; for whether its jurisdiction be dcducible from the Adopting Statute of 1784, or the Judiciary Act of 1781), and its predecessors, or from any Other source, one thing is certain, namely: that for fifty years, our Superior Courts have been exercising, without let or hindrance, the powers usually appertaining to Courts of Equity in England and other States of this Union.
[467]*467[9.] As early as July, 1796, the following rule of Equity Practice, was adopted by the Judges of the Superior Courts at Louisville, and ivas signed by W. Stephens, Benjamin Tali-, aferró, W. Eew, I). B. Mitchell and H. Caldwell: “where cases, in the first instance, require the power of a Court of Equity, the mode of proceeding shall be by bill or petition ; and the usual process of subpoena shall issue, and copies of bill and subpoena be served on the defendant, if in the State, as in Common Jjaw casos; if out of the State, the subpoena shall be published six months, in one of the public Gazettes, to bring in the defendant to answer. The defendant, on appearance, shall have such reasonable time to answer, as the Court shall find to be equitable ; when the defendant remains in default or contempt, the plaintiff shall be entitled to have his bill so far confessed, as to justify an interlocutory order being pased thereon; and which shall entitle the complainant to have his case, ex parte, submitted to the Jury, who may decree upon the merits of the cago laid before them”. (Minutes of Wilkes Superior Court, November Term, 1796.)
What cases, pray, did then, as now, require the powers of a Court of Equity, in the first instance? All, unquestionably, where a Common Law remedy -was not adequate. To this extent, then, at least, this rule, adopted during the last century, recognizes Equity powers, as existing in the Superior Courts of this State. And, I apprehend, there never was a1 time, from the settlement of the Colony in 1732, to the present period, when, for all practical purposes, less power than this was lodged in the Judiciary Department of the Government, under every change and form of organization.
[10.] By reference to the early records of the older counties of the State, the fact is established, that both before and subsequent to the .Judiciary Act of 1799, the Superior Courts of Georgia were in the constant habit of exercising all the Chancery powers which were usual to Courts of Equity ip, England. n
Similar proof is furnished by the elder Charlton’s Reports., At page 94, is a very learned and elaborate opinion, in Equity, [468]*468in 1807, founded upon the doctrine of escheats. There are several eases, praying injunctions to stay proceedings at Law, under various pretexts; and among the rest, fraud is the basis of the application, in one of the cases. There are one or two bills for specific performance. I beg leave to dwell, however, with more particularity, on ex parte, Paul Grimball, page 153,(1808.)
This was a bill in Equity, stating that several judgments had 'been obtained at Law, against the complainant, for. neai’ly $>5,000, while he had a judgment in his favor, for 8,000 dollars, suspended by an appeal; that executions had been issued against him, and a sale threatened, which, if it took place, would prove ruinous to the complainant, inasmuch as, owing to the embargo laws, double the property would be sacrificed now, at a forced sale, which it would have required only four months before, to pay the judgments; and praying an injunction to delay any farther proceedings at Law, for the present.
The Judge, after delineating in glowing language the pecuniary distress of the country, and ’adverting to tho fact, that it was-of sufficient magnitude as to have-required an extra session of the Legislature, > which had adjourned, however, without passing any suspension or alleviating Act, asks, “ cannot relief be afforded by this Court”? And he continues, “I have given to the power with which tho Law and the Constitution have invested me, their full deliberation ; and, although I do not possess all the powers of a Lord Chancellor”, (why?) “ because, by our local system, the interposition of a Jury is required in Equity causes, yet that system cannot and does not interfere with these matters in Chancery, which, in their nature, must be exclusively referred to the discretion of the Court. Of this nature, I consider the application for writs of injunction”.
This was the view taken by a learned Judge, nearly a half a century ago, of tho Equity powers of the Superior Courts in this State. That they ^differed only from those possessed by the Lord Chanceller in England, , so far as that, by “ our local system, the interposition of a Jury is required here, in [469]*469Equity cases”. And, accordingly, he issued his fiat, to restrain a judgment and execution at Law, because they were proceeding against equity and good conscience. Need I remark, that this is not only one of the most delicate, but questionable powers which is claimed by the Courts of Chancery ?
■ But I propose to follow this case a step further. The Judge ■continues, “it is admitted by both sides, that no remedy can be had at Law. When we resort to Law, it is expected that precedents will have their full weight of authority; and, though precedents may militate with that justice which the peculiar circumstances of a particular case may require, yet, for the sake of general and uniform rules, a Judge will seldom deviate from an established and settled principle, to accommodate the circumstances of one case, however strong the reasons may be, to exempt it from the operation of precedent.—■ In Doe vs. Pott, (2 Douglass, 120,) Lord Mansfield is reported to have said: ‘ the absurdity of Lord Lincoln’s Qase, is shocking; however; it is now law’. This observation of his Lordship, may be selected as the most strongly illustrative of the authority given by Common Law Judges to precedent”.
“ A Court of Equity is not so trammeled. It is governed by uniform rules of evidence ; and, though a respect is evinced, in that jurisdiction, for precedents, yet they are seldom permitted to stand in the way of the particular circumstances of each case. A Lord Chancellor of Great Britain is almost as omnipotent as Parliament. Give him but a strong hold on an equitable principle, and he will be sure to substitute the intention of an Act of Parliament, for its letter; he wall push aside precedent for abstract honesty. What are the many cases in the Equity Reports, on the Statutes of Frauds and Perjuries, but in direct repeals of the plain and literal requisites of that all-important Statute” ?
“It is only necessary to advert to the nature of Law and Equity, to account for the latitude of poiver given to the latter. The law is stubborn and unbending; it marks out for itself a course, from which no fascination can illure—no obstacles impede. It neither looks to the right nor to the left; [470]*470it neither relents nor forgives; it issues its mandates, and will be obeyed; it talcos into view no consequences. Fiat justitia is its maxim, whether contemplating its operation upon a nation, or upon an individual. We perceive, at once, that such should be the nature and effects of Law. They necessarily result from that intlbxriininating and eternal justice, upon which the Common Law is founded”.
“Our ancestors felt, as we have felt after'them, the necessity of some tribunal, armed with the attributes of alleviating .the inexorablcness of the Law. This tribunal is called a Court of Equity, whose decisions are guided by the particular circumstances of the case. This Court of Equity lends mercy to the Law; and steps in, as "■ kind mediator, between rigid justice, as established by tin* artificial institution:; of society, and that justice which trace:; iís origin to the laws of nature and of God”.
Tims eloquently did a Qeorgia Judge discourse, in 180", on the large and benefiani powers of a Court of Equity in this State; only nine gears after, the Act of 1799 was passed, which, it has been supposed, curtailed the general jurisdiction of that Court, and expressly limited it to cases “ between eopartnerg and co-ezeeutnw.: fj compel the dislrihKtic-n f estates and payment of legacies, erd to discover fr r hd -rj, tr-vxe'Vtions for the benefit of creed' ms” ! ! I l.iov, ' -i r *._:*.; well unwarrantable, such an assumption, or rather, I should say, usurpation of power, must have appeared to Berrien, Bulloch, Davis, Harris, Noel, Leake, Lawson, Stiles and Cuylcr, and the men of that day! But no: not a word of complaint is found to escape their lips, as reported in the pleadings, in the numerous Equity causes in which they were constantly engaged. The record contains no demurrers, filed to the jurisdiction of the Court. The inference is irresistible—no suspicion was entertained by the authors or cotempornrms of the Act of 1799, that it restricted the powers of ,*;■ Court of Equity to the five classes of cases therein enumerated. This discovery has been reserved to a much later day. And this chronological fact should be conclusive upon t.bo question.
[471]*471If this Special grant of power, a? it has been called, includes the sum total, of tho jurisdiction of Chancery, what became of technical trusts—of those accidents, mistakes and frauds which are only relievablcin a Court of Equity—of the wife’s equity—■ of marriage articles—of bills for specific performance, and the thousand other cases, where the r; medy at Common Law is not adequate ? No provision has been made for them by subsequent legislation.
.By examining tho Reports of tho younger Charlton, “ of ever blessed memory”—tho volume of decisions made by the Superior Courts of this State, and published in compliance with tho Act of. December 10, 184-1; as well as Dudley’s Reports, of tlio cases decided by tho nudges in Convention, it will be soon, that all the powers ordinarily exercised by a Court-of Chancery, in England, and which were suited to the circumstances of our people, and form of government, have been claimed and exercised by the Superior Courts of this State. I need only appeal to the experience of tho bar throughout tho State, to establish this truth. And I think I am not mistaken in venturing the assertion, that nothing would be considered more disastrous, by tho profession, generally, than for this Court to undertake to circumscribe tho Equity powers of the the Superior Courts,' within the very narrow jimits fixed by Statute, as claimed by counsel.
One other thought, and I will discontinue this discussion, which, I fear, has been extended quito too far, on account of my respect for the very able and distinguished counsel, whose views I am combatting. By searching the Digest of the Laws of this State, it will be found that there are numerous Acts which recognize the existence of Equity powers in our Superior Courts, which have not been anywhere expressly conferred. b\ Statute.
[11.] By the Act of 1806, amendatory of the Act of 1802, to cany into effect the 9th section of tho Sd article of the Constitution, relative to divorce, (Cobb’s Digest, 224,) the Verdict or decree of the Jury, making provision out of the property of the husband, for tho separate maintenance and sup[472]*472port of the wife and the issue of the marriage, was to be carried into effect, according to the rules of Law, “ or according to the practice of Chancery, as the nature of the case may require”.
Here, then, is a Statute passed only three years after the Act of 1799, not delegating to, but recognizing in the Superior Courts, plenary Equity powers, as to writs of ne exeat, bills of quia tenet, ¿x. For this was the usual machinery in Chancery, by which Ecclesiastical decrees for alimony were enforced.
Take another example—the Act of 1839, (Cobb’s Digest, 469,) regulating proceedings in Equity. It provides, that when a ‘complaining party seeks, through a Court of Equity, the specific performance of an agreement to convey land, and the Jury shall find in favor of the complaining party, it shall be the duty of the Court to cause the description of the land to be set forth in the judgment of the Court, and signed by the attorney of the complainant, which judgment shall be entered on the records of the Court, (if for land,) and shall be recorded in the county where the land lies ; which judgment and decree shall pass the title without any act to be done by the defendant. And such judgment or decree having been recorded, shall be as effectual to transfer the property, as the deed of the defendant.
I beg to know, whence did the Courts get the jurisdiction to .entertain bills for specific performance, the existence of which is assumed by this Act ? It is certainly not to be found in the special grant contained in the 53d section of the Judiciary Act of 1799, nor in any other Statute, before or since.
[12.] It has been asked, why the delegation of Equity porters to the Superior Courts, to be found interspersed in our legislation from time to time, provided they were clothed with plenary authority already? Some Judge may' have entertained doubts upon the subject; not so much, perhaps, as to the power itself, as to the application of it. And these Acts have been passed, not as introductory of any new power, but either as declaratory of the law, as it already existed; or [473]*473what is more probable, as directory of the mode in which the power should be exercised, as adapted to our new relations.There is one very remarkable fact, however, if my memory is not at fault, and it is this: that there is not a Statute in the Book, which was passed for-the avowed purpose of negativing or prohibiting the exercise of any Equity power, by the Superior Courts of this State. All has been conceded or acquiesced in, which was claimed. The Act of 1820 complains, that Equity had drawn to itself exclusive jurisdiction over the five sorts of cases therein mentioned; and confers concurrent Common Law jurisdiction. This is all it seeks to accomplish.
To borrow the language of Chief Justice LeGrey,' as much to show that the peculiar phraseology which he uses, is not, as it has been wrongfully supposed to be, an Americanism, as to express the.strength of my own conviction, I must say, that ■to my mind, “it isa mighty clear case”. (1 Fearne, on Remainders, 4th American from 10th London Edition, 64.)