Woodward, J.
It must be remarked, in the outset, that neither Ellen, the daughter, nor Armstrong, the husband, are alleged to have had any voice, hand or part in procuring the gift of the lot, nor in the making of the deed, or the manner in which it was made. The gift appears to have been entirely a gratuity of the father, and the manner of it altogether his and his attorney’s. It is not altogether clear, what the bill is in its nature, whether a bill to correct a mi'stake, or to quiet a title. If it is the latter, however, still it is to quiet it, on account of a mistake. The cause has been argued mainly, as an application in chancery to correct a mistake. The complainant and appellant claims relief upon two grounds. First, that the deed is not sufficient to carry the fee; second, that if it is, there was a mistake in the draftsman, in not effecting the intention of the grantor.
We will view the case, first, upon the second ground, supposing the deed sufficient to carry the fee. The grantor [286]*286intended that on tbe death of Ellen and her children, without issue, the title should revert, but it has descended from the child to its father. Here is a mistake as to the legal ■effect of the deed. Is it a mistake of fact, or of law ? It seems difficult to distinguish it from one of law, and whether ■of fact, or of law, can relief be granted. The maxim “ igno-rantia legis non excusat,” is stated throughout the books, as an elementary proposition; and when you look for the doctrine of law on this subject, you find it to be, that equity will not relieve against a mistake of law. And Mr, Story says (1 Eq. Juris. § 138), that the present disposition of •courts of equity is to narrow, rather than to enlarge, the operation of exceptions. See 1 Story’s Eq. Juris. §§ 111 to 120, 125, 137, 138, The Supreme Court of the United •States, says, “ The question then is, ought the court to grant the relief asked for, upon the ground of mistake arising from •any ignorance of law? "W"e hold the general rule tobe, that a mistake of this character, is not a ground for reforming a deed, founded on such mistake; and whatever exceptions there may be to this rule, they are not only few in number, but tbey will be found to have something peculiar in tbeir character.” Hunt v. Rousmaniere, 1 Peters, 1. This case will be referred to again more fully. A statement of it is found in 1 Story’s Eq. § 114. Sholwell v. Murray, 1 John. Ch. 512 ; Lyon v. Richmond, 2 Ib. 51, 60; Storrs v Barker, 6 Ib. 166, 169; 6 Paige Ch. 189, 202, and authorities. These books will lead to others. Many comments might be made upon these authorities, and those which follow, but it would occupy too much time and space. We will, however, refer to some which are often referred to, with a brief notice of tbe distinctions and grounds on which they stand.
Two are bound by a bond, and the obligee releases one, supposing by mistake of law, that the other will remain bound. The obligee was refused relief. 1 Story Eq. § 112. See, also, §§ 113,114,115,116,134 to 137. In sections 140 to 156, Mr. Story takes up mistakes of fact, in which relief is usually granted, and in sections 152 to 156, he treats as mistakes of fact, the cases of written agreements, by mistake [287]*287containing less or more tban, or something different from, wbat the parties intended; and in some of those sections speaks of mistakes of a draftsman. On all the branches of this subject, there has been some confusion, and probably some conflicting cases, but the law, as we conceive it now to stand, is best summed up in. Hunt v. Bousmaniere, 1 Peters, 1. The court, m that case, says: “ There are certain principles of equity applicable to this question, which, as general principles, we hold to be incontrovertible. The first is, that where an instrument is drawn and executed, which professes, or is intended, to carry into execution, an agreement, whether in writing or by parol, previously entered into,'but which, by mistake of the draftsman, either as to fact or law, does not fulfill, or which violates the manifest intention of the parties to the agreement, equity will correct the mistake so as to produce a conformity of the instrument to the agreement.” Again, page 16, “ It is not the intention of the court, in the case now under consideration, to lay it down that there may not be cases in which a court of equity will relieve against a plain mistake, arising from ignorance of law. Rut we mean to say, that when the parties, upon deliberation and advice, reject one species of security, and agree to select another, under a misapprehension of the law as to the nature of the security so selected, a court of equity will not, on the ground of such misapprehension, and the insufficiency of such security, in consequence of a subsequent event not foreseen, perhaps, or thought of, direct a new security of a different character to be given, or decree that to be done, which the parties supposed would have been effected by the instrument which was finally agreed upon.”
. We must here remark, that iñ the above authorities, and in the cases generally, mutuality forms an important element; and although the cases sometimes arise upon an instrument signed but by one, yet that instrument arises out of, and is the expression of, the agreement of two minds. Now, in the case before us, is not the deed the intended expression of but one mind, and that the mind of the grantor, and should not this fact have some weight in the case ? It is true that the [288]*288grantor says, the others so understood it, both before and after execution. But what if they did? They are not said to hayo sought or procured the gift, or the making of the deed. It was a free gift on his part, and he got it up in the manner which best suited himself. The daughter took only just what he pleased to give, and in such manner as he pleased to give it, and had not a word to say about it. True, she understood it just as her father and his attorney explained it, but there was no agreement between them in the sense of contract. And as to Armstrong, he had nothing to do with it; it was intended to exclude him; he stood outside; he was an alien to the transaction; and the terms “agreement” and “ mutuality ” have no application to him. The mistake, if there was one, was in not anticipating further probable or . possible events. The attorney provided for the duration of two lives, we will say, that is, of the daughter and her children ; he thought that sufficient, and went no further. He did not provide for the contingency of the daughter’s issue being cut off.
Let us now look at some of the cases usually cited, in view of the above law and these facts. A full statement of Champlin v. Layton, 6 Paige’s Ch. 189, would require too much space, but the hinge upon which it turns, lies in these words of the chancellor: “ The representation of Herring was tantamount to a declaration on the part of the vendors, 'that neither they, nor those under whom they claimed, had dedicated the lot in question to the public, nor done any other act by which the corporation, or the owners of the adjacent land, would have a right-to open a street over the lot, without paying the owner the full value thereof. This declaration of Herring, amounted to a misrepresentation in point of fact.” This indicates the ground upon which relief was granted to the purchaser of the lot.
The case of Gouverneur v. Titus, 6 Paige Ch. 347, was thus: A. sold to B. the north east
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Woodward, J.
It must be remarked, in the outset, that neither Ellen, the daughter, nor Armstrong, the husband, are alleged to have had any voice, hand or part in procuring the gift of the lot, nor in the making of the deed, or the manner in which it was made. The gift appears to have been entirely a gratuity of the father, and the manner of it altogether his and his attorney’s. It is not altogether clear, what the bill is in its nature, whether a bill to correct a mi'stake, or to quiet a title. If it is the latter, however, still it is to quiet it, on account of a mistake. The cause has been argued mainly, as an application in chancery to correct a mistake. The complainant and appellant claims relief upon two grounds. First, that the deed is not sufficient to carry the fee; second, that if it is, there was a mistake in the draftsman, in not effecting the intention of the grantor.
We will view the case, first, upon the second ground, supposing the deed sufficient to carry the fee. The grantor [286]*286intended that on tbe death of Ellen and her children, without issue, the title should revert, but it has descended from the child to its father. Here is a mistake as to the legal ■effect of the deed. Is it a mistake of fact, or of law ? It seems difficult to distinguish it from one of law, and whether ■of fact, or of law, can relief be granted. The maxim “ igno-rantia legis non excusat,” is stated throughout the books, as an elementary proposition; and when you look for the doctrine of law on this subject, you find it to be, that equity will not relieve against a mistake of law. And Mr, Story says (1 Eq. Juris. § 138), that the present disposition of •courts of equity is to narrow, rather than to enlarge, the operation of exceptions. See 1 Story’s Eq. Juris. §§ 111 to 120, 125, 137, 138, The Supreme Court of the United •States, says, “ The question then is, ought the court to grant the relief asked for, upon the ground of mistake arising from •any ignorance of law? "W"e hold the general rule tobe, that a mistake of this character, is not a ground for reforming a deed, founded on such mistake; and whatever exceptions there may be to this rule, they are not only few in number, but tbey will be found to have something peculiar in tbeir character.” Hunt v. Rousmaniere, 1 Peters, 1. This case will be referred to again more fully. A statement of it is found in 1 Story’s Eq. § 114. Sholwell v. Murray, 1 John. Ch. 512 ; Lyon v. Richmond, 2 Ib. 51, 60; Storrs v Barker, 6 Ib. 166, 169; 6 Paige Ch. 189, 202, and authorities. These books will lead to others. Many comments might be made upon these authorities, and those which follow, but it would occupy too much time and space. We will, however, refer to some which are often referred to, with a brief notice of tbe distinctions and grounds on which they stand.
Two are bound by a bond, and the obligee releases one, supposing by mistake of law, that the other will remain bound. The obligee was refused relief. 1 Story Eq. § 112. See, also, §§ 113,114,115,116,134 to 137. In sections 140 to 156, Mr. Story takes up mistakes of fact, in which relief is usually granted, and in sections 152 to 156, he treats as mistakes of fact, the cases of written agreements, by mistake [287]*287containing less or more tban, or something different from, wbat the parties intended; and in some of those sections speaks of mistakes of a draftsman. On all the branches of this subject, there has been some confusion, and probably some conflicting cases, but the law, as we conceive it now to stand, is best summed up in. Hunt v. Bousmaniere, 1 Peters, 1. The court, m that case, says: “ There are certain principles of equity applicable to this question, which, as general principles, we hold to be incontrovertible. The first is, that where an instrument is drawn and executed, which professes, or is intended, to carry into execution, an agreement, whether in writing or by parol, previously entered into,'but which, by mistake of the draftsman, either as to fact or law, does not fulfill, or which violates the manifest intention of the parties to the agreement, equity will correct the mistake so as to produce a conformity of the instrument to the agreement.” Again, page 16, “ It is not the intention of the court, in the case now under consideration, to lay it down that there may not be cases in which a court of equity will relieve against a plain mistake, arising from ignorance of law. Rut we mean to say, that when the parties, upon deliberation and advice, reject one species of security, and agree to select another, under a misapprehension of the law as to the nature of the security so selected, a court of equity will not, on the ground of such misapprehension, and the insufficiency of such security, in consequence of a subsequent event not foreseen, perhaps, or thought of, direct a new security of a different character to be given, or decree that to be done, which the parties supposed would have been effected by the instrument which was finally agreed upon.”
. We must here remark, that iñ the above authorities, and in the cases generally, mutuality forms an important element; and although the cases sometimes arise upon an instrument signed but by one, yet that instrument arises out of, and is the expression of, the agreement of two minds. Now, in the case before us, is not the deed the intended expression of but one mind, and that the mind of the grantor, and should not this fact have some weight in the case ? It is true that the [288]*288grantor says, the others so understood it, both before and after execution. But what if they did? They are not said to hayo sought or procured the gift, or the making of the deed. It was a free gift on his part, and he got it up in the manner which best suited himself. The daughter took only just what he pleased to give, and in such manner as he pleased to give it, and had not a word to say about it. True, she understood it just as her father and his attorney explained it, but there was no agreement between them in the sense of contract. And as to Armstrong, he had nothing to do with it; it was intended to exclude him; he stood outside; he was an alien to the transaction; and the terms “agreement” and “ mutuality ” have no application to him. The mistake, if there was one, was in not anticipating further probable or . possible events. The attorney provided for the duration of two lives, we will say, that is, of the daughter and her children ; he thought that sufficient, and went no further. He did not provide for the contingency of the daughter’s issue being cut off.
Let us now look at some of the cases usually cited, in view of the above law and these facts. A full statement of Champlin v. Layton, 6 Paige’s Ch. 189, would require too much space, but the hinge upon which it turns, lies in these words of the chancellor: “ The representation of Herring was tantamount to a declaration on the part of the vendors, 'that neither they, nor those under whom they claimed, had dedicated the lot in question to the public, nor done any other act by which the corporation, or the owners of the adjacent land, would have a right-to open a street over the lot, without paying the owner the full value thereof. This declaration of Herring, amounted to a misrepresentation in point of fact.” This indicates the ground upon which relief was granted to the purchaser of the lot.
The case of Gouverneur v. Titus, 6 Paige Ch. 347, was thus: A. sold to B. the north east corner of a tract of land, but by mistake in the deed, described it as the north west corner. Subsequently to this, C. recovered judgment against A. before the mistake was discovered, which judgment was [289]*289-a lieu by law. 33. then conveys to others, by the same erroneous description. C. -then buys under Ms judgment, .and a -levy made with the knowledge of the mistálce. A. and B. at -some point of time, made a new deed to B.’s vendees, correcting tbe error. These subsequent purchasers, under B., •seek relief -against 0., and the relief is granted. Here was a clear mistake of fact, with notice, and observe by whom the application was made.
The case of Edwards v. Morris, 1 Ohio, 531, is said, in 11 Ohio, 231, to have been a case of mistake Gf fact, and not of law. In McNaughten v. Partridge, 11 Ohio, 223, one partner .gave a sealed instrument for the debt of the firm, with the knowledge and assent of -the other partners, and under the ■supposition and intention of them all, that all should be, and were, bound. The obligee alleged; that Hale, the partner who executed the bond, was insolvent, and had gone to parts unknown, and prays relief -against the other partners.It was considered, that the other partners were discharged ■in law by the higher security .given by Hale, and which bound him alone. Wood, J., giving the opinion of the court, reasons as though relief should be given, although it was a mistake of law. Yet he says, '“I do not know that I am ¡authorized by a majority of my brethren to say, thatu mere mistake of law may be corrected; but I am authorized to say, that relief might be granted in the ease at bar, if it depended ■on the case of mistake made in the bill.” The case was-•ultimately decided upon another ground. The case of Evants v. Admr. of Strode, 11 Ohio, 480, is more strongly in favor of the present complainant. Evants took from -Strode a written agreement for the sale of some land, by-warraniy deed. Strode died, and his administrator filed a bill in the proper court, to obtain authority to make the •conveyance. The court decreed the conveyance -by warranty •deed. The administrator made a deed, but by mistake, or -for some other cause, omitted to insert a clause of warranty. The purchaser was ousted, and brought his bill against the •administrator and heirs at law of Strode, for -relief. The «court distinctly call this a mistake of -law, and grant relief [290]*290They cite,- in addition to tbe oases above, Drew v. Clark, Cooke, 374, 380; 1 Hill Abr. 146; 2 Bibb, 449, 168; 6 Rand. 594. Three things are to be noticed in this case;; the decree o-f the court below, was that the conveyance should be by deed of warranty; the purchaser had paid his-money for the land; and there was a prior contract, which was to be affected by the deed. In- the case at bar, these things do not exist. The Code of Iowa, section 240, has,, manifestly no relation to this case. Arnold v. Grimes, 2 G. Greene, 80, in its own features, has no bearing upon the case before us, and the dicta quoted from 10 Yerger, 121, applies too loosely to avail much, amid so much that is adjudication, The case of Wharburton v. Lauman, 2 G. Greene, 420, is much like that of Gouverneur v. Titus, 6 Paige, 347. B, mortgaged lot eighteen to L. by mistake, intending lot eight; afterward B. mortgaged lot eight to W., who- had notice of the mistake. L. asks relief against W., on the ground of mistake and notice, and it is granted. These cases and references, include all those cited by counsel. We will now refer to two or three, which seem- to settle the case before us. 1 Story’s Bq., § 112. “Two are bound by a bond, and the obligee releases one, supposing, by a mistake of law, that the other will remain bound.” Story says, “The obligee will not be relieved in equityj upon the mere ground of his-mistake of the law; for, there is nothing inequitable in the obligor’s availing himself of his legal rights, nor in the obligor’s insisting upon his release;- if they have both acted bona fide, and there has been no fraud or imposition on either side, to procure the release.” “So, where a party had a power of appointment, and executed it absolutely, without introducing a power of revocation, upon a mistake of law, that being a voluntary deed, it was revocable, relief was denied.
In Hunt v. Rousmaniere, 8 Wheat, 174, 216; and 1 Peters, 1, the facts were these: R. borrowing money of H., was willing to give him any security he chose, by lien or otherwise, on the brig Nereus, and the schooner Industry. H„ consulted counsel, who advised to take a power of attorney to sell the vessels, as this would avoid the necessity of [291]*291changing the vessels’ papers, and of taking possession of them, on their arrival in port. This was intended to be, and was believed to be, as full and perfect security, as would be given by a deed of mortgage. The power was irrevocable in law, but B. died, and his death terminated it. The bill was filed against B.’s administrator. The defendant demurred. MARSHALL, C. J., in his remarks, says, “ In this case, there is no ingredient of fraud.” “The instrument taken, is the instrument intended to be taken; but it is, contrary to the expectation of the parties, extinguished by an event not foreseen nor adverted to. Does a court of equity, in -such a case, substitute a different instrument for that which has failed to effect its object?” Again: “We find no case precisely in point, and are unwilling, where the effect of the instrument is acknowledged to have been entirely misunderstood by both parties, to say, that a court of equity is incapable of affording relief.” He overrules the demurrer, but, as there are creditors concerned, permits the defendants to withdraw their demurrer, and answer over. This case is cited on both sides of the question — whether chancery will relieve against a mistake of law. And certainly, it is not a clear case. The same case comes up again in 1 Peters, 1. In this, it appears that the former bill had been answered under the leave given by C. J. Marshall, testimony taken, and a hearing had in the Circuit Court, which finally dismissed the bill. On appeal, the Supreme Court of the United States affirmed this decree. This case goes the furthest in support of that at bar, and yet decides against it. There was a clear mistake as to the effect of the instrument; there was a pecuniary consideration involved; there were two parties agreeing what should be effected, and what was intended; and yet the highest tribunal in our land refuses the relief, asked. And this decision is cited with approbation, in Bank U. S. v. Daniel, 12 Peters, 55.
We think, therefore, that to grant the relief sought in the ■case at bar, would be going, not only beyond any case where it has been granted, but against those in which it has been refused. We do not undertake to lay down any proposition [292]*292of law, any further than those we have quoted, and par" ticularly those from 1 Peters, 13. But although this part of the case is decided, without this further thought, we cannot avoid expressing the strong inclination of our minds, that some weight ought to be given to the fact, that the defendant is an entire stranger to the original transaction, having no voice nor hand in its inception or maturity, and that all that he now has in it is cast upon him by the law, he taking only by descent from his child, and that taking by descent from its mother. The complainant having chosen his own instrument and mode for exercising his liberality, we cannot make a new instrument for him, but must leave him to its legal effect.
And to this branch of the case we come now. It is said that the deed is not sufficient to pass the estate, and that the condition of it has not been fulfilled. 1. It is said that the deed did not pass the estate, because the words “ have given and granted,” will not have that effect. Counsel present this, and the following objections, seriously, and we will consider them, and examine the books referred to by him. First — -The words are in the past tense. Tomlin’s Law Die. verbum “ Grant.” Grants are usually made by these words, “have given, granted, and confirmed.” Mr. Walker, in his Introduction, 377, says: “ The statement of the conveyance in the past and present tenses, ‘has given ’ and ‘ does give,’ &C., is an insult to common sense; either tense is sufficient.” /Second — 'Counsel urges that the words “give ” and “ grant” are not ajDpropriate to convey the land, and dwells principally on the word “grant,” as appropriated to incorporeal property only. Let us drop this word, then, as carrying only the incorporeal qualities of the estate, and take up the word give. This, at common law, passed an inheritance, a fee, although it was appropriate to a fee tail. But this deed does not present the line in which the estate shall pass, and we must look at the habendum, for this will lessen, enlarge, explain, or qualify the premises. The habendum, then, is “to her and her own proper and legal heirs forever.” 4 Kent, 468: Walker’s Intro. 380. The daughter dying, left [293]*293the child her heir, and the child dying, left its father as heir. This is in the regular line of “her heirs.” But counsel mistake in thinking, that the word “give” was not, at common law, a sufficiently effective word, when not limited to an estate tail. Tom. Law Lie. tit. Conveyance; Walk. Int. 377 ; 4 Bacon' Ab. 76, 77, 82. The latter says-, “ The words cledi and concessi are general words, and may amount to a grant, feoffment, gift, release, confirmation, surrender, -&C.” 2. The counsel hold, that the consideration of “ love and affection ” will not support an inheritance. For the contrary, see 4 Kent, 462, margin; 1 Story’s Eq. § 168; Oode of Iowa, § 975. 3. The counsel maintain, that the instrument (or deed) could not operate as a covenant to stand seized to uses, there being no seal to it. The seal on private instruments, had become a pure and useless technicality. The Oode of Iowa in 1851, abolished the use of them on private instruments, by declaring it to have no effect, and providing that all written contracts should import a consideration. The same statute, in its provisions relating to the transfer of real estate, does not require a seal, and applies the word “ deed,” in the statute, to an instrument conveying lands, and says, that it does not imply a sealed instrument. See § 26, part 20, 974, 975. We understand that real estate may be conveyed, and by an instrument without a seal,'and that all its qualities and incidents will pass without that heretofore important thing, a seal or scrawl. 4. As the court below may probably have held, that this deed could receive effect as a covenant to stand seized to uses, if in no other view, the counsel here maintain, that the defendant could not inherit a use; and he refers to the Code, section 1408, which, relating to decedent’s estates, says, that “ the remaining estate of which the dece-cedent died seized, shall, in the absence of other arrangements by will, descend in equal shares to his children.” Then the counsel argues, that a use is not an estate. By the Oode, section 26, part 8, the word “land,” and the phrases “real estate,” and “real property,” (in the statute), include lands, tenements, and hereditaments, and all rights [294]*294thereto, and interests therein, equitable as well as- legal.”' By section 26, part 10, the word “ property ” includes personal and real property; by section 1201, “ every conveyance of real estate, passes all the interest of the grantor therein, unless a contrary intent can be reasonably inferred from the terms used;” by section 1408, “the remaining-estate of which the decedent died seized, shall descend in equal shares to his children;” and by section 1410, if the-intestate leave no wife (or husband), nor issue, “ the whole shall go to his father.” These provisions would seem to embrace a use, and to make it inheritable; and more, was not a use descendible at common law ? See 2 Black. Com. 330; 4 Kent, 492 ; Prest. on Est. 143; 1 Cru. Dig. 323; 2 Thos. Co. 705 and 672; 7 Bac. 77; Saund. W. & T. 63, 66, 165; 1 Hill Ab. 226; 2 Bl-kf. 434. We incline to the opinion,, therefore, that if this was only a covenant to stand seized to uses, and the use was executed in the mother, then it descended to the child, and to the child’s heir, who was its father.
These legal points have not been argued at all, on the one side, but we have felt ourselves obliged to notice them, wishing, however, that if they were really relied upon, they might have received a more careful and thorough attention. When a question like the above, relating to the words, “given and granted,” or that concerning the consideration of “love and affection,” supporting an estate of inheritance comes up, the doubt naturally arises, whether “there now remaineth to- us ” any of this law. Have we not passed by it, and got beyond it? We have not the various estates formerly known in England, with their complication of law. We have no occasion for their former distinction of conveyances. We, in general, own our land in simple absoluteness, and need not talk of allodium, or free and common socage.. Saving the rights of creditors and subsequent Iona fide purchasers, we enjoy the right to do with it what we please; not merely to sell it, but to give it away. If a deed is without any consideration, what matters it between grantor and grantee, and their heirs ? Has- not the grantor the same right to [295]*295-give away bis lot, tbat be bas to give bis boxse or bis wateb? Is it not tbe intent, and tone, and spirit, of all our laws, •and institutions, and tenure of lands, tbat tbe latter may be conveyed by any words wbieb manifest tbat purpose, and •for any consideration we please, so tbat others, having legal or equitable claims upon us, are not injured? These questions naturally arise, though they are not presented for formal adjudication. Walk. Int. 877.
But complainant and appellant presents one other matter, which is more serious in its nature. Supposing this deed to convey a fee simple, it is followed in the same instrument, •by a condition, of defeasance. Should the said Ellen die without children living at her death, tbe estate is to revert. Is" tbe estate saved, by ber leaving one child living ? Complainant’s counsel, cite 2 Eearne on Rem. 877; 1 Story’s lEq. § 288 ; Stor. on Cont. §'561, the last two of which sayj that a condition precedent must be strietly performed. But this is.a condition subsequent, which is not held up so rigidly. 2 Tom. Law Diet.' — ■“ Condition.”' — Of performance in substance and effect. Ib. 8. No authority seems ,to be of weight, unless it -is upon -the use of the -particular word “children;” and of these we axe referred to none, and can fi.nd|but very few. Bouv. Law Diet. verb, “plural,” says. “ Sometimes, however, It may be so expressed tbat It means only one, as if a man were to devise to another all he was worth, if he, testator, died without children •; and he dies leaving one child, the devise would-not take effect.” For which he refers to the civil law, &c. So on the word “ singular ” he says, it frequently includes the plural, as a bequest to “my nearest relation,” is to all in the same degree. So a bequest to “my heir,'” by one having three heirs, is extended to all. The word'“heirs'” is never construed as requiring more than one. A gift or devise to one and his children,” would not.be held to call for a plurality, but what estate it would give, is not material. It is worthy of note, that this deed is to her and “ her heirs,” provided, ,&c., and then will .the word “ children,” restrain the word heirs •” and even .the bill seems to give a construction, [296]*296■when it uses the language,” and in such manner as that at the death of said Ellen, and upon failure of children as aforesaid, and heirs of her body, to enjoy the same, said grant should cease,”' &c. This view is favored also by the case of McGregor v. Toomer, 2 Strob. Eq. 57. The case of Glass v.. McCloud, decided by this court, also- bears upon similar questions. The object of this gift, would seem to apply to one child as well as to several. The language must be taken, to mean the same as if it was,. “ if the said Ellen die without any children living,” &c.
The judgment of the District Court is therefore affirmed,, but the cause will be remanded, with leave to the complainant to amend,, if he sees cause.