Smith, C. J.,
delivered the opinion of the court.
This case comes before us upon an agreed state of facts. William Hampton conveyed, by deed of gift, to his daughter, Mrs. Martha K. Irby, “ and the heirs of her body forever,” a certain female slave and her natural increase. Mrs. Irby took possession, under the deed, of the said slave, which, together with two children, her natural increase, are the subject of this suit. Irby, the husband of the donee, died, and his widow intermarried with the defendant in error, and died, never having had issue by either [201]*201marriage. The suit was instituted by the heirs of the donor, from which it may be inferred that he had also died, but there is nothing in the record to show whether his death occurred before or after that of the donee.
From this statement, it is manifest that the right of recovery on the part of the plaintiffs, must depend, exclusively, on the character of the estate which vested, by operation of the deed, in Mrs. Irby. For it is certain, that if she acquired an estate in fee in the property donated, they can found no claim to recover as the heirs of the donor, whatever may be the title of the defendant.
What, then, was the character of the interest which vested in Mrs. Irby ? Was it only a life estate, which, upon its termination at her death, without heirs of her body, reverted to the donor, or his representatives ?
It is insisted by counsel, that the intention of the grantor to vest in his daughter but an estate for and during the term of her natural life, is perfectly evident from the terms of the instrument; and hence it is contended, that the limitation over, by the use of the words “heirs of her body,” does not bring the case within the operation of the rule in Shelly’s case, as that rule has been modified by the legislature, and expounded and applied by the courts of this state.
In our opinion, the terms of the instrument in question are precisely such as, if employed under the rule in reference to real property, would convey an estate in fee-tail; and consequently the whole interest in personal property. 1 Prest. Est. 264; 1 Madd. 288; 1P. Wms. 208; 3 lb. 258; Fearne, Rem. 468; 4 Kent, Com. 229. The 24th section of the statute concerning conveyances, Hutch. Dig. 609, which provides, that “ every estate in lands or slaves, which now is, or shall hereafter be created an estate in fee-tail, shall 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 the 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 devise of lands to a succession of donees [202]*202then living, and to the beir or heirs of the body of the remainder-man, and in default thereof to the right heirs of the donor in fee-simple,” determines this controversy, unless the 26th section of same act has not only rendered the rule in Shelly’s ease inapplicable to the instrument under consideration, but has also rendered nugatory the provisions of the section above quoted.
The 26th section provides that, “ every contingent limitation in any deed or will, made to depend upon the dying of any person, without heirs or heirs of the body, or without issue or issue of the body, or without children or offspring, or descendants, or other relative, shall be held and interpreted a limitation to take effect when such person shall die, not having such heirs, or issue, or child, or offspring, or descendant, or other relative (as the case may be,) living at the time of his death, or born to him within ten months thereafter; unless the intention of such limitation be otherwise expressly and as plainly declared, on the face of the deed or will creating it.”
The provisions-of this section, which we have quoted at length, have been, in three cases heretofore decided in this court, the subject of construction. In the last of these, that of Powell v. Brandon, 24 Miss. Rep. 343, the court was careful to remark, that in its opinion the decisions previously made did not in the slightest degree conflict with the views therein expressed. In the first of the cases referred to, Carroll v. Renich, 7 S. & M. 798; the question grew out of a contract made in Tennesseeand was decided exclusively with reference to the laws of that state-. But 'an opinion or a belief was expressed, that the statute had changed the rule in Shelly’s case, “ and relieved it from the intricacy and embarrassment which perplexed the' common law, and involved it in minute and subtle distinctions and refinements.”
In the next case—Kirby v. Calhoun, 3 S. & M. 462 — in which the rule in Shelly’s ease was the subject of comment, as the facts are materially different from those in Powell v. Brandon, it may well be said, that there is no necessary conflict between the judgments in the two cases; but we apprehend it would be impossible to reconcile the views expressed in the opinions in those cases, in [203]*203reference to the question, how far the statute has abolished or modified that rule.
In Kirby v. Calhoun, the case was put exclusively on the statute, and the belief or opinion announced in Carroll v. Renich, that the statute of this state had changed the rule on this subject, was deliberately adhered to. The court further say; “ In Virginia, we find the original of this statute word for word. A late learned commentator on the laws of that state, shows that this provision extends equally to deeds and to wills ; to personal and real estate, except where the use of the personalty involves its consumption as a consequence. He concludes by saying, £ under this rule of construction, it will be difficult to conceive a ease of limitation, after the failure of issue, which can be considered now to be an estate tail” citing Lomax, Dig. 212, 296.
By a principle of the common law, known as the rule in Shelly’s case, as defined by Mr. Preston, “ when a person takes an estate of freehold, legally or equitably, under a deed or will or other Writing, and afterwards in the same deed or will, or other writing there is a limitation by way of remainder, with or without the interposition of any other estate, of an interest of the same quality, as legal or equitable, to his heirs generally, or his heirs of his body; by that name in deeds or writings of conveyance, or by that or some such names in wills, and as a class or denomination of persons to take in succession from generation to generation; the limitation to the heirs will entitle the person or ancestor himself, to the estate or interest imported by that limitation. 1 Preston on Est. 264.
This rule is, in Powell v. Brandon, expressly recognized, as of force within this state, as a principle of the common law, except so far as it may have been repealed or changed by the statute.
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Smith, C. J.,
delivered the opinion of the court.
This case comes before us upon an agreed state of facts. William Hampton conveyed, by deed of gift, to his daughter, Mrs. Martha K. Irby, “ and the heirs of her body forever,” a certain female slave and her natural increase. Mrs. Irby took possession, under the deed, of the said slave, which, together with two children, her natural increase, are the subject of this suit. Irby, the husband of the donee, died, and his widow intermarried with the defendant in error, and died, never having had issue by either [201]*201marriage. The suit was instituted by the heirs of the donor, from which it may be inferred that he had also died, but there is nothing in the record to show whether his death occurred before or after that of the donee.
From this statement, it is manifest that the right of recovery on the part of the plaintiffs, must depend, exclusively, on the character of the estate which vested, by operation of the deed, in Mrs. Irby. For it is certain, that if she acquired an estate in fee in the property donated, they can found no claim to recover as the heirs of the donor, whatever may be the title of the defendant.
What, then, was the character of the interest which vested in Mrs. Irby ? Was it only a life estate, which, upon its termination at her death, without heirs of her body, reverted to the donor, or his representatives ?
It is insisted by counsel, that the intention of the grantor to vest in his daughter but an estate for and during the term of her natural life, is perfectly evident from the terms of the instrument; and hence it is contended, that the limitation over, by the use of the words “heirs of her body,” does not bring the case within the operation of the rule in Shelly’s case, as that rule has been modified by the legislature, and expounded and applied by the courts of this state.
In our opinion, the terms of the instrument in question are precisely such as, if employed under the rule in reference to real property, would convey an estate in fee-tail; and consequently the whole interest in personal property. 1 Prest. Est. 264; 1 Madd. 288; 1P. Wms. 208; 3 lb. 258; Fearne, Rem. 468; 4 Kent, Com. 229. The 24th section of the statute concerning conveyances, Hutch. Dig. 609, which provides, that “ every estate in lands or slaves, which now is, or shall hereafter be created an estate in fee-tail, shall 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 the 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 devise of lands to a succession of donees [202]*202then living, and to the beir or heirs of the body of the remainder-man, and in default thereof to the right heirs of the donor in fee-simple,” determines this controversy, unless the 26th section of same act has not only rendered the rule in Shelly’s ease inapplicable to the instrument under consideration, but has also rendered nugatory the provisions of the section above quoted.
The 26th section provides that, “ every contingent limitation in any deed or will, made to depend upon the dying of any person, without heirs or heirs of the body, or without issue or issue of the body, or without children or offspring, or descendants, or other relative, shall be held and interpreted a limitation to take effect when such person shall die, not having such heirs, or issue, or child, or offspring, or descendant, or other relative (as the case may be,) living at the time of his death, or born to him within ten months thereafter; unless the intention of such limitation be otherwise expressly and as plainly declared, on the face of the deed or will creating it.”
The provisions-of this section, which we have quoted at length, have been, in three cases heretofore decided in this court, the subject of construction. In the last of these, that of Powell v. Brandon, 24 Miss. Rep. 343, the court was careful to remark, that in its opinion the decisions previously made did not in the slightest degree conflict with the views therein expressed. In the first of the cases referred to, Carroll v. Renich, 7 S. & M. 798; the question grew out of a contract made in Tennesseeand was decided exclusively with reference to the laws of that state-. But 'an opinion or a belief was expressed, that the statute had changed the rule in Shelly’s case, “ and relieved it from the intricacy and embarrassment which perplexed the' common law, and involved it in minute and subtle distinctions and refinements.”
In the next case—Kirby v. Calhoun, 3 S. & M. 462 — in which the rule in Shelly’s ease was the subject of comment, as the facts are materially different from those in Powell v. Brandon, it may well be said, that there is no necessary conflict between the judgments in the two cases; but we apprehend it would be impossible to reconcile the views expressed in the opinions in those cases, in [203]*203reference to the question, how far the statute has abolished or modified that rule.
In Kirby v. Calhoun, the case was put exclusively on the statute, and the belief or opinion announced in Carroll v. Renich, that the statute of this state had changed the rule on this subject, was deliberately adhered to. The court further say; “ In Virginia, we find the original of this statute word for word. A late learned commentator on the laws of that state, shows that this provision extends equally to deeds and to wills ; to personal and real estate, except where the use of the personalty involves its consumption as a consequence. He concludes by saying, £ under this rule of construction, it will be difficult to conceive a ease of limitation, after the failure of issue, which can be considered now to be an estate tail” citing Lomax, Dig. 212, 296.
By a principle of the common law, known as the rule in Shelly’s case, as defined by Mr. Preston, “ when a person takes an estate of freehold, legally or equitably, under a deed or will or other Writing, and afterwards in the same deed or will, or other writing there is a limitation by way of remainder, with or without the interposition of any other estate, of an interest of the same quality, as legal or equitable, to his heirs generally, or his heirs of his body; by that name in deeds or writings of conveyance, or by that or some such names in wills, and as a class or denomination of persons to take in succession from generation to generation; the limitation to the heirs will entitle the person or ancestor himself, to the estate or interest imported by that limitation. 1 Preston on Est. 264.
This rule is, in Powell v. Brandon, expressly recognized, as of force within this state, as a principle of the common law, except so far as it may have been repealed or changed by the statute.
But in the application of this rule, the difficulty of determining whether words used in such conveyances as “heirs, issue, heirs of the body, offspring, lineal descendants,” &c., were to be understood and held as words of limitation, or as a designation of a class of persons to take as heirs of the ancestor ; or, on the other hand, as words of purchase, intended to designate particular persons as individuals to take in their own right, gave origin to numerous [204]*204controversies. The courts at length and with great unanimity decided, that those words, in their proper and legal import, embraced any heirs of the given description collectively as a class of persons, unless there was an intention directly and plainly expressed to the contrary. If, however, such contrary intention plainly appeared, the rule was not so inflexible as to control that intention, if'it did not infringe upon the reason on which the rule itself was based, and steered clear of its literal terms. 1 Prest, on Est. 275, 278, 279. The very great amount of litigation which arose from that source, is suflicient to show the extreme difficulty which existed, in determining what words and expressions were sufficient to indicate a direct intention to limit and control the usual meaning which had been attached by the courts to these words. 1 Prest, on Est. 279.
In Powell v. Brandon, say this court, “to obviate this acknowledged difficulty; and by giving a fixed and positive definition to these words, in consonance with, what in most cases seemed to be the wish and intention of the party using them, and thus to cast off a fruitful source of litigation, occasioned, as we conceive, the enactment of the section” above quoted. And in the same case, in response to the argument of counsel on the question of the repeal of the rule by the statute, it was said that, “ by reference to the 24th section, (which we have above quoted at length,) it will be found, we think, to have little if any bearing upon the question. The object of that section, was to abolish entails in both real estate and slaves, whether conveyed by deed or devise, and the proviso contained in the section, has exclusive relation to a conveyance or devise of real estate; and cannot therefore have any influence upon the construction, which must be placed upon a devise or conveyance of slaves.” “A more difficult question” continue the court, “ is presented for consideration by the 26th section,” in reply to which the court say, “we do not think it was the intention of the legislature, to declare that in every case where the words ‘heirs,’ ‘heirs of the body,’ &c., were used, they should be construed words of purchase and not of limitation, even should it appear from the instrument, that such was not the sense or meaning of the party using them. This we think is clear [205]*205from the language of the act itself, which simply declares that these words, when used in the cases referred to, shall hare a certain definition or meaning ; unless the intention of such limitation be otherwise expressly and plainly declared on the face of the deed or will creating it. Erom this exception, contained in the law, the inference seems to be irresistible, that if such intention does so appear, then the words shall not have the meaning or signification affixed to them by the statute, but should receive that definition which the common law affixed to them, and which the party intended to give. In our opinion, therefore, the rule in Shelly’s case, so far at least as personal property is concerned, has not been abolished, but still exists in this state, and will be applied whenever it expressly or plainly appears, from the instrument creating the estates, that it was the intention of the grantors by the use of the words ‘heirs,’ ‘heirs of the body,’ ‘issue’ &c., to specify a class or denomination of persons, to take, the inheritance in succession, from generation to generation,* in their character as heirs of the ancestor.”
The section itself is a legislative recognition of the existence of the rule; and it is equivalent to a declaration that it should be applied in all cases in which, under the operation of the statute, it could, according to settled doctrine, be applied.
It seems clear that it was not the intention of the legislature, by the adoption of the 26th section, to introduce new, or render valid limitations upon a contingency not theretofore recognized' by the courts, as it must be construed in reference to the 24th section of the same act, whose object was to free property from the fetters of entailment. It does not even declare that a limitation over upon a person’s “ dying without issue living at the time of his death,” should be good. The reason is obvious: such limitation was already good at common law; but which had declared that the words “ dying without issue,” meant an indefinite failure of issue, and not issue living at the time of the death. It would seem, therefore, not to admit of doubt that the 26th section was designed simply to lay down a certain, intelligible, and uniform rule of construction, by affixing to certain words used in deeds and wills a [206]*206definite and fixed signification, different from that which had theretofore been attached to the same words by the courts.
The question then comes up ; whether and how far the rule has been abolished or modified by the 24th section ?
The manifest and declared object of that section, was to abolish entailments in respect to lands and slaves, or to raise them to the dignity of estates in fee simple. The proviso has exclusive reference to conveyances and devises of lands; and we concur with the court in Powell v. Brandon, that it can have no “ influence whatever upon the construction which must be placed upon a devise or conveyance of slaves.” The language of the proviso is definite and intelligible, and the boundaries of the limitations therein sanctioned are marked with unmistakable certainty. Whenever the rule in Shelly’s ease is in conflict with its provisions, it is useless to say that the former has been abolished. A conveyance or a devise which comes within the terms of the proviso must stand upon the statute unaffected by any principle of the common law; but we have said the proviso refers exclusively to conveyances and devises of real estate; and hénce does not apply to the questio n involved in this case.
Let the judgment be affirmed.