Bleckley, Judge.
We are in a court of law, not in a court of equity. The action is ejectment, with no special allegations on which to adjudicate mere equitable rights, or found equitable relief. The property involved may or may not be the proceeds of property owned by Mrs. Pooler at the time of her marriage. The special verdict is silent on that point, and so is the entire record. The deed applying directly to the premises in dispute, is one from the municipal authorities of Savannah, to the trustees of Mrs. Pooler, bearing date in 1831, ten years later than the marriage settlement. That deed makes no reference to the settlement; neither does it mention the [20] children or issue of the marriage, or the heirs of the wife’s body. In so far as it passes title at all, it simply conveys to the trustees, as tnrstees of Mrs. Pooler. It provides for a further conveyance, on certain conditions, to them, their heirs and assigns, to the only proper use and behoof of her and her heirs and assigns, forever, in fee simple. The record does not inform us whether this deed was made pending the coverture, or after it had terminated. Neither does it inform us whether or not Pooler survived his wife, or even whether he may not still be living. "We cannot tell, therefore, whether the plaintiff’s intestate was sole heir general of Mrs. Pooler, as well as the only heir of her body; nor can we tell whether she was the sole heir of Pooler himself, so as to succeed by the statute of distributions to whatever estate he may have had in the premises, if indeed he had any. It will thus be seen, that upon the face of the deed, the plaintiff’s intestate had no title to the premises, and that further facts are wanting to give her exclusive title under the statute of distributions. Therefore, in the absence of any defense whatever, her administrator was not in a situation to recover the whole of the premises, if he could recover any part, without having recourse to the marriage settlement. His real claim is founded on the terms of that settlement, read in connection with the deed. His position is, that, although the deed passed no title to his intestate, yet the settlement did; that, by virtue of the settlement, she took a remainder in fee, as purchaser. It is true, the settlement, in its language, applies to future acquisitions, but there is a strong probability that there is an implied limit in time, so as to confine its effect to acquisitions made before the termination of the coverture. It is hardly reasonable that what Mrs. Pooler might acquire after the death of her husband, was to be controlled by the settlement. This consideration suggests that, unless it appeared, either that the property in controversy was paid for out of the settled estate, or was otherwise acquired while the coverture subsisted, the construction of the settlement, even if favorable on the general question, ought not to be [21] decisive of the plaintiff’s right to recover. How can a deed which provides for an estate in fee simple be cut down to a life estate by the terms of a prior instrument, without showing, affirmatively, that the two instruments have a necessary connection, and must needs operate together on the very property in question ?
1. However, as in the court below the case was made to turn on a construction of the marriage settlement, and as no other topic received the attention of counsel in the discussion here, we proceed to an examination of that instrument. The distinction between executory articles, contemplating a future settlement to make them fully effective, and a settlement, operating as a present conveyance, and intended to be final and complete, is well recognized. Atherly on Mar. Set. 92, 117, 151; 2 Story’s Eq. §983; 1. Ib. §160; 1 Fearne on Rem. 91, 92, 93, 98, 108; Hill on Tr. 329; Perry on Tr. §361; 7 S. & M. 799; 1 White & Tudor’s Leading Cases in Equity, Am. Ed., 46, 62, notes to Lord Glenorchy vs. Bosville. In a court of equity, as appears from most of the authorities just cited, marriage articles are among the most plastic of all legal materials. That court will sometimes mould out of them settlements different from those provided for by the letter of the articles. Completed settlements, on the other hand, are of a more rigid nature, and equity touches them less freely; yet, where they have been made in pursuance of articles, or where mistakes are apparent from recitals, etc., they will be reformed so as to accomplish the legal effect intended. It is, nevertheless, to be observed that even a court of equity will not perform its work in favor of manifest intention by a process of violence or crushing. It will not do by construction, what ought to be done by reconstruction or correction. Though satisfied that a mistake has been committed, it will abide by a completed conveyance as the parties have made it, so long as there is no application to have it reformed. Of course, a court of law, adjudicating strictly as such, will regard only the actual state of the conveyance [22] and tlie construction which it ought to receive in that state. Indeed, the party bringing in the instrument and asserting it as title, stands upon it as correct. What it gives him as it is, he claims; what it might give him as it is not, is a question which he does not present. The instrument now under consideration is not a minute of executory articles. It is a complete and final conveyance, in which the parties have given ultimate form and expression to their whole scheme, and established limitations to suit themselves. It contemplates no ulterior settlement by the trustees, or by a court of equity. In and by it, the intended wife conveys her property, real and jsersonal, to trustees, and to the heirs, executors, administrators and assigns of the surviving trustee, “to, for and upon the uses and trusts, conditions and Unvitations following; that is to say, to and for the use and behoof of the said (intended wife) for and during the term of her natural life, and from and after her decease, then to the use and behoof of the heirs of the body of the said (intended wife), by the said (intended husband) to be begotten, and for and in default of such issue, then to the use and behoof of the survivor of them, the said (intended husband and wife), his or her executors, administrators and assigns forever, and to and for no other use, intent, or purpose whatsoever.” A legal estate of inheritable freehold is manifestly conveyed to the surviving trustee, and though the instrument was made prior to our act of 1821, dispensing with words of inheritance to create a fee, the only words of inheritance introduced in connection with any of the uses declared, are “heirs of the body.” In every case of marriage articles, or marriage settlement, there is, from the nature of the transactionj some degree of presumption that the parties intended a provision for children, as such. Moreover, that presumption is aided in the present instance by a preliminary recital, declaring that the intended husband has agreed, if the marriage shall take effect, that he, his executors, administrators or assigns, shall not, and will not, have any right, title, or interest, at law or in equity, in or to any [23] of the wife’s property, real or personal, during her natural life, but that the same shall remain in her, for and during her life, and after her decease, to the issue of the marriage, if any issue there shall be. It is impossible to doubt that the estate in the wife was intended to be restricted to the period of her own life, and that, in the event of issue, they should succeed to the estate. But how succeed ? This question is not answered in the recital, but is answered in the limitation to uses, above quoted, and in terms precisely appropriate to the creation of an estate tail. The wife, after passing a legal fee in trust, declares a use in herself for the term of her own life, and then a use for the heirs of her body to be begotten by the husband. This is the mode of providing for the issue that the parties adopted. We may be morally satisfied that they made a mistake in what they did; but we can see no reason for doubting that they did what they intended — only the true legal effect of their action was not contemplated or foreseen. Their intention was to provide for children by entailing the property. Their mistake was in supposing that they could secure the property to children in that way. When we consider the words of entailment they used, and that they failed to introduce anywhere, in connection with the equitable estate, the word heirs, except “ heirs of the body,” we can scarcely doubt that they had their minds upon an indefinite line of descendants, and thought they had settled the succession from generation to generation. The intention was to transmit the property throughout that line. None but heirs of the wife’s body, by the husband begotten, were to succeed, as long as there should be such heirs in existence. The stream of blood was to be followed, and where it flowed, the estate was to go. Along the one narrow channel, it was to be washed down until blood failed. Under the authorities, we do not see that this construction is to be modified by the limitation over to the survivor of the parents. 20 Ga. 804; 17 Ib. 280; 2 Kelly 116. 'From numerous reported cases, we think the English courts of equity, when called upon to execute marriage articles or to [24] reform defective settlements, almost invariably construe “heirs of the body” as words of purchase for one purpose, namely, to make them (as meaning children), successive donees in tail, so as to give them the estate in strict settlement. This is done to promote, and not to obstruct, effective entailment. It makes the eldest son the first donee in tail, instead of the parent, and thereby prevents the parent from cutting off the entail; so that, at last, the words “ heirs of the body,” when applied to realty and used in articles or in a settlement, either create an estate tail, or go to provide for its creation. It is not improbable — indeed it is more than probable — that a court of equity in that country, would, on timely application, reform such a settlement as that with which we are now dealing, so as to put the estate tail in the children of the marriage, instead of in the wife. But until reformed, the conveyance would, we believe, be construed there as we construe it. When parties fail to convey in a way to give proper legal effect to articles, courts there do not disregard the conveyance actually made, or treat it as something else. Even courts of equity do not go to that extreme, but give relief, as we have before said, by reforming the conveyance, purging it of mistake.
2. Mr. Guerrard, the learned counsel for the defendant in error, citing 1 Preston on Estates, 344, 359, and 2 lb. 441, contended that the rule in Shelley’s case, could not be made to apply to the instrument now under consideration, because “the freehold is limited to one person, and the second limitation is to the heirs of the body of that person and of another, who are husband and wife, so that the persons designated as heirs are to be common heirs of their two bodies.” If this statement correctly expounded the second limitation in the settlement before us, it would undoubtedly be conclusive in favor of the learned counsel’s position. 1 Eearne on Bern. 38. But it does not. The limitation with which we are concerned, is to the heirs of the wife’s body to be by the husband begotten ; and these terms do not designate the common heirs of their two bodies, but the heirs of the [25] wife’s body alone. 1 Fearne 39 ; Littleton § 28; 3 Hargrove’s Notes, Co. Lit. 26 b, notes 151, 152 ; 2 Powell on Dev. 440, 441; 2 Jar. on Wills, 251, 252 ; 2 Durn. & East, 431; 8 Ib. 516 ; 7 Smedes & M. 799. It is clear, therefore, that the heirs in whose favor the ultimate estate is limited are those of the same person to whom the preceding estate for life was limited, and none others. The conveyance is, in this respect, as exactly within the rule in Shelley’s case as it is possible for any conveyance to be — see the rule stated in 2 Kelly 316; 14 Ga. 553.
3. Another reason given by the learned counsel against the application of the rale, concerns the nature of the tra.pt. He contended that the trust was executory, in such sense as to render the rule inapplicable. There is a power in the instrument, enabling the trastees, upon the request of both consorts, “to grant, bargain and sell, all or any part of the property, they preserving, investing, settling and assuring the proceeds of any such sale upon the same uses, trusts, intents and purposes as are herein contained and expressed.” This is a limited power to change and reinvest. It is a power that could be exercised only during the joint lives of the husband and wife, and was conferred to facilitate the management and better enjoyment of the estate. Such a power seems not unusual. 1 White & Tudor’s L. C., Am. Ed. 53, notes to Lord Glenorchy vs. Bosville. As long as the power continued, the trust would be, in a certain sense, executory. Indeed, in that loose sense, it would be executory as long as'the legal title remained in the trastees. But what is meant by an executory trust on which the rule in Shelley’s case will not operate, may be seen by consulting the following authorities: 2 Kelly 320, 321; 3 Ib. 559 ; Hill on Trustees 332, 333; 1 Perry on Trusts, § 359, 2 Story’s Eq. § 983 ; 1 Fearne on Rem. 137, 140 to 144; 1 White and Tudor’s L. C. (supra) 45. The -authorities may be said to lead to this result- — -that the rale is not applicable if the trust be executory in either of two ways : first, where some direction is to be obeyed before the limitations [26] are complete; and, secondly, where though all the limitations are complete in substance, there is a direction for an actual conveyance to be made to the persons described as heirs, or heirs of the body. In the former instance, the maker of the instrument either postpones the limitations until after some preliminary is arranged, such as the purchase of property, or else whispers them, as it were, to the trustee, leaving him to utter them aloud; in the latter, the utterance, though clear and distinct at first,-is, for greater certainty, to be repeated in a formal and ceremonious manner — that is, a direction to convey is to become an actual conveyance. The instance with which we are now dealing, is not one in which the limitations are postponed or incomplete, nor one in which a conveyance to the heirs of the body is directed. The power given is to sell and to reinvest upon the same uses etc. There is no authority to vary the uses, or to create new ones, or to make more perfect those already declared. To ascertain the uses after reinvestment, as well as before, there is no occasion to look out .of the original conveyance. In that one instrument all the uses are expressed, and fully expressed, not only in respect to the original property, but in respect to any other into which it might, under the power, be converted. To decide on the exact character and immediate effect of every limitation, there is no occasion to wait for any act to be performed by the trustees ; and no act they could perform, in pursuance of the power, would make a better or more complete title in any person or persons than the original instrument confers.
Judgment reversed.