Scott, J.,
delivered ihe opinion of the Court.
This was an action of replevin, instituted by the appellant, plaintiff, against the appellee, defendant, for a slave named Sally, in which the appellant submitted to a nonsuit, and, after a refusal by the court below to set aside, appealed to this Court.
It appears that Micajali Woods, in consideration of the love and affection which lie bore his grand-children, Juliet Walker Wilson and William Henry Wilson, gave unto ¿the said Juliet W. Wilson, her executors, administrators, and assigns, one negro woman, Malinda, and three of her children, one boy, Allen, and two girls, Sally Anderson and Mary'Ann; and in like manner he gave to William II. Wilson three other children of the above-named woman Malinda, viz., one girl, Queen, and two boys, Alexander and Reuben; to have and to hold the said negroes unto them, the said Juliet W. and William H. Wilson, their executors, administrators, and assigns forever: but should either the said Juliet W. or William II. Wilson die without heirs, then the property of the one so dying shall absolutely vest in the other. The instrument of the gift was a deed. The appellant is one of the donees mentioned in the deed. Juliet W. Wilson, the other donee, intermarried with Alfred Mann, and after being delivered of a dead child, died herself in child-bed, leaving no children. The slave Sally, for which the suit was instituted, is the same named in the deed of gift, and given to Juliet W. Wilson. Mann, after his marriag-e, and before the death of his wife, sold the said slave to the appellee, Cockrill.
Micajali Woods, the donor, was a resident of Albemarle county, Virginia, and executed the deed of gift to his grand-children on the eve of their departure from his home, where they had lived since the death of their mother. They left their grandiather’s house for the purpose of coming to this State, where their father had resided tor a number of years, and by whom they were sent for.
On one part it was maintained, that the appellant, the surviving donee, was entitled to the slave in dispute, by virtue of that clause in the deed of gift which provides, that, if cither the said Juliet W.Wilson or William H.Wilson shall die without heirs, then the property of the one so dying shall vest absolutely in the other.
On the other hand it was contended, that the limitation over, being after an indefinite failure of heirs, was too remote, and therefore void; consequently, that the entire property in the slaves vested in the first taker: that if the limitation over was not too remote, and could be construed so as to bring it within the period the law allows an estate to vest, viz., a life or lives in being twenty-one years and some months, yet such contingent interests can only be created by a will or conveyance Under the statute of uses, and not by a common law conveyance.
It was a principle of the common law, that no person but the feoffor, or grantor, and his heirs could take advantage of the breach of an express condition or conditions created by deed; hence, if a freehold estate be conveyed to one, and words [6]*6of condition be used, and there be a limitation over to a third person, in case the condition be broken, yet upon breach of the condition, the feoffor, or grantor, or his heirs must enter, in order to avoid the estate: for whatever estate was created by livery could only be defeated by entry, and to permit him, the commencement of whose estate depended upon a breach of the condition, to enter, in order to take advantage of it, was allowing the assignment of a chose in action, which, for the purpose of preventing maintainance and oppression, the common law forbade. It was also a rule, that when the feoffor, or grantor, entered to take advantage of a breach of a condition, his entry defeated the livery made at the commencement of the estate, and all subsequent estates depending on the first were thereby defeated and gone: hence the principle, that a remainder, properly so called, cannot be limited by a common law conveyance to take effect upon a condition which is to defeat the particular estate. Inasmuch as such limitations were, however, found exceedingly convenient in making provisions for families, they were afterwards allowed, when created by will or conveyance under the statute of uses, by the denomination of executory devises and conditional limitations.
The authorities are all united in declaring that interests similar to that claimed by the appellant in the slave in controversy, which is a remainder limited to take effect after a disposal of the entire property in the thing by the grantor, can only be created by a conveyance operating under the statute of uses, or by will. (4 Kent, 128; Fearne, 10, 391; Tucker’s Com., 90, 144.) Judge Tucker remarks, that Blackstone, vol. 2, pp. 155, 6, puts the case of a conditional limitation by a common law conveyance, and cites Fry vs. Porter, Ventris, 202, as an authority in support of such a mode of limitation ; but he observes, all the elementary writers state the case as a devise, and Kent refers to the same case as an authority for the position, that conditional limitations, though not valid in the old conveyance at common law, yet within certain limits they are good in wills and conveyances to uses.
It was insisted by the appellant, that (he intention of the grantor was to give the slaves to Juliet W. Wilson forever, but if she died without leaving children at her death, then they should go to the appellant, if he survived.
It may be admitted, that such was the intention of the grantor. When a donor has such an intent, and wishes to have it effected, the law has proscribed particular modes or forms in which that intent must be expressed, otherwise it cannot be regarded. The grantor by deed gave an absolute interest in property to one, and after thus parting with all his estate, wished to give a right to the same property (o another, upon' the happening of a certain event. That wish, in order to be carried into effect by the courts of law, must he expressed in one of two modes. The grantor has not adopted either of the modes required by law; his intentions, therefore, cannot prevail. — Betty vs. Moore, 1 Dana, is a direct authority upon this point.
Butler says, (Thomas’ Coke, 2d vol., p. 761, 2,) “Executory devises originated in the indulgence shown to testators in effectuating their intentions, whereby the judges were induced, in cases of wills, as well as in limitations of uses, to dispense with the strict rules of the common law, according to which no remainder could be limited over after an estate in fee-simple, nor a freehold be created to commence in future: an executory devise or bequest is, therefore, such a limitation of a [7]*7future estate, or interest in lands or chattels, as the law admits in the case oí'a will, though contrary to the rules of limitation in conveyances at common law.”
In the case of Jackson vs. Anderson, (16 I.Rep.,) the principle is slated, that in construing limitations, wo arc to look at the words of the instrument by which they arc limited, and no circumstance transpiring subsequently affecting the limi'lees is to have any weight in ascertaining their validity. If, by the words of their creation, they may possibly endure forever, they are considered as estates in foe, though in fact they may terminate in less time than a life in being. If the limitation over to William H. Wilson be tested by this rule, it is impossible to say that Juliet W.
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Scott, J.,
delivered ihe opinion of the Court.
This was an action of replevin, instituted by the appellant, plaintiff, against the appellee, defendant, for a slave named Sally, in which the appellant submitted to a nonsuit, and, after a refusal by the court below to set aside, appealed to this Court.
It appears that Micajali Woods, in consideration of the love and affection which lie bore his grand-children, Juliet Walker Wilson and William Henry Wilson, gave unto ¿the said Juliet W. Wilson, her executors, administrators, and assigns, one negro woman, Malinda, and three of her children, one boy, Allen, and two girls, Sally Anderson and Mary'Ann; and in like manner he gave to William II. Wilson three other children of the above-named woman Malinda, viz., one girl, Queen, and two boys, Alexander and Reuben; to have and to hold the said negroes unto them, the said Juliet W. and William H. Wilson, their executors, administrators, and assigns forever: but should either the said Juliet W. or William II. Wilson die without heirs, then the property of the one so dying shall absolutely vest in the other. The instrument of the gift was a deed. The appellant is one of the donees mentioned in the deed. Juliet W. Wilson, the other donee, intermarried with Alfred Mann, and after being delivered of a dead child, died herself in child-bed, leaving no children. The slave Sally, for which the suit was instituted, is the same named in the deed of gift, and given to Juliet W. Wilson. Mann, after his marriag-e, and before the death of his wife, sold the said slave to the appellee, Cockrill.
Micajali Woods, the donor, was a resident of Albemarle county, Virginia, and executed the deed of gift to his grand-children on the eve of their departure from his home, where they had lived since the death of their mother. They left their grandiather’s house for the purpose of coming to this State, where their father had resided tor a number of years, and by whom they were sent for.
On one part it was maintained, that the appellant, the surviving donee, was entitled to the slave in dispute, by virtue of that clause in the deed of gift which provides, that, if cither the said Juliet W.Wilson or William H.Wilson shall die without heirs, then the property of the one so dying shall vest absolutely in the other.
On the other hand it was contended, that the limitation over, being after an indefinite failure of heirs, was too remote, and therefore void; consequently, that the entire property in the slaves vested in the first taker: that if the limitation over was not too remote, and could be construed so as to bring it within the period the law allows an estate to vest, viz., a life or lives in being twenty-one years and some months, yet such contingent interests can only be created by a will or conveyance Under the statute of uses, and not by a common law conveyance.
It was a principle of the common law, that no person but the feoffor, or grantor, and his heirs could take advantage of the breach of an express condition or conditions created by deed; hence, if a freehold estate be conveyed to one, and words [6]*6of condition be used, and there be a limitation over to a third person, in case the condition be broken, yet upon breach of the condition, the feoffor, or grantor, or his heirs must enter, in order to avoid the estate: for whatever estate was created by livery could only be defeated by entry, and to permit him, the commencement of whose estate depended upon a breach of the condition, to enter, in order to take advantage of it, was allowing the assignment of a chose in action, which, for the purpose of preventing maintainance and oppression, the common law forbade. It was also a rule, that when the feoffor, or grantor, entered to take advantage of a breach of a condition, his entry defeated the livery made at the commencement of the estate, and all subsequent estates depending on the first were thereby defeated and gone: hence the principle, that a remainder, properly so called, cannot be limited by a common law conveyance to take effect upon a condition which is to defeat the particular estate. Inasmuch as such limitations were, however, found exceedingly convenient in making provisions for families, they were afterwards allowed, when created by will or conveyance under the statute of uses, by the denomination of executory devises and conditional limitations.
The authorities are all united in declaring that interests similar to that claimed by the appellant in the slave in controversy, which is a remainder limited to take effect after a disposal of the entire property in the thing by the grantor, can only be created by a conveyance operating under the statute of uses, or by will. (4 Kent, 128; Fearne, 10, 391; Tucker’s Com., 90, 144.) Judge Tucker remarks, that Blackstone, vol. 2, pp. 155, 6, puts the case of a conditional limitation by a common law conveyance, and cites Fry vs. Porter, Ventris, 202, as an authority in support of such a mode of limitation ; but he observes, all the elementary writers state the case as a devise, and Kent refers to the same case as an authority for the position, that conditional limitations, though not valid in the old conveyance at common law, yet within certain limits they are good in wills and conveyances to uses.
It was insisted by the appellant, that (he intention of the grantor was to give the slaves to Juliet W. Wilson forever, but if she died without leaving children at her death, then they should go to the appellant, if he survived.
It may be admitted, that such was the intention of the grantor. When a donor has such an intent, and wishes to have it effected, the law has proscribed particular modes or forms in which that intent must be expressed, otherwise it cannot be regarded. The grantor by deed gave an absolute interest in property to one, and after thus parting with all his estate, wished to give a right to the same property (o another, upon' the happening of a certain event. That wish, in order to be carried into effect by the courts of law, must he expressed in one of two modes. The grantor has not adopted either of the modes required by law; his intentions, therefore, cannot prevail. — Betty vs. Moore, 1 Dana, is a direct authority upon this point.
Butler says, (Thomas’ Coke, 2d vol., p. 761, 2,) “Executory devises originated in the indulgence shown to testators in effectuating their intentions, whereby the judges were induced, in cases of wills, as well as in limitations of uses, to dispense with the strict rules of the common law, according to which no remainder could be limited over after an estate in fee-simple, nor a freehold be created to commence in future: an executory devise or bequest is, therefore, such a limitation of a [7]*7future estate, or interest in lands or chattels, as the law admits in the case oí'a will, though contrary to the rules of limitation in conveyances at common law.”
In the case of Jackson vs. Anderson, (16 I.Rep.,) the principle is slated, that in construing limitations, wo arc to look at the words of the instrument by which they arc limited, and no circumstance transpiring subsequently affecting the limi'lees is to have any weight in ascertaining their validity. If, by the words of their creation, they may possibly endure forever, they are considered as estates in foe, though in fact they may terminate in less time than a life in being. If the limitation over to William H. Wilson be tested by this rule, it is impossible to say that Juliet W. Wilson did not take an estate in the slaves which might endure forever, consequently it was an estate granted after the disposal of the grantor’s entire interest in the properly, and therefore could not be made by deed or conveyance at common law.
Not 01m of the many cases produced in support of the claim of the appellant, except the ease of Higginbotham vs. Rucker, (2 Cull,) arose on the construction.' of a common law conveyance. The limitations in all of them were by will or conveyance under -the statute of uses. The question did not arise in the case of Higginbotham vs. Rucker, if the limitation in that case was made by deed; and so we may infer, from the report of it, the objection was not made, and no opinion was expressed in relation to it. The other oases cited by the appellant, to show that such an interest as lie claims in the slave in dispute may be created by a common law conveyance, or, which is the same thing, by deed, — Keene & West, vs. Macy, 3 Bibb, 39; Wright vs. Cartriglit, 1 Burr, 162; Powell vs. Brown, 1 Bailey’s S. C. Rep., 100, — are authorities in support of the principle, that chattels may be limited by deed to one for Ufa with remainder over to another, and the limitation over, after the life-interest in the chattel has expired, is good. By the ancient common law, there could be 110 limitation over of a chattel, but the gift for life carried the entire interest. This rule was relaxed at first in favor of wills, and afterwards such limitations were permitted by deed.
We do not wish to be understood as expressing the opinion, that the limitation over to the appellant would have been valid had the same been created by will or conveyance under the statute of uses: conceiving that the question does not arise, we express 110 opinion in relation to it.
We are not clear, under the circumstances stated in the record, that the validity of the limitation contained in the deed should be determined by the laws of Virginia.
Even should the laws of that Slate govern us in ascertaining whether it is allowable or not, the counsel of the appellant did not maintain that they are different from those which prevail in this State.
The doctrine, as established in New York and Massachusetts, is, that the courts will not take judicial cognizance of any of the laws of our sister States at variance with the common law, but upon common law questions, the legal presumption is, that the common law of a sister State is similar to that of our own. — 10 Wind., 75; Holmes vs. Broughton.
Judgment affirmed.
Note. — This ease was argued at Boonville at the Fall term, 1812. Judge Naplon, in consequence of indisposition, was absent from the bench.