WASHINGTON, Circuit Justice.
The following objections have been made to the title of the plaiDtiff, and his right of recovery: (1) That the will of Peter Fretwell passed to Jonathan and Eliza Wright a fee simple estate. If so, the lessor of the plaintiff, who claims as the eldest son of Peter F. Wright, can have no title to the lands in question, which were sold and conveyed by Jonathan Wright his grandfather. (2) But if the estate was a fee tail, then it is objected, that the estate tail was converted into an estate in fee simple by force of two acts of assembly of this state, passed in the years 1784 and 1786, which operated to defeat the estate of the issue in tail. (3) That the plaintiff is barred by force of the act of limitations.
In construing the above recited clause of Peter Fretwell’s will, the court will take care not to forget the maxim equally contended for by the counsel on both sides, and which all the cases upon the subject inculcate, that the intention of the testator apparent in the will, is to govern the construction, if such intention be not inconsistent with the established principles of law. We think there is no difficulty in discovering the intention of this testator, and it is quite clear to us that this intention entirely harmonizes with the rules of law. Gan it admit of a doubt that the testator intended, in the first instance, to give to his daughter and to his son-in-law, a joint estate in fee tail, excluding for a moment, the words “or assigns for ever?” The words are “to his well beloved daughter, and to her husband J. W. and their heirs begotten of their bodies.” The most unlettered man, however'ignorant he may be of the difference between a fee simple and a fee tail, knows that the heirs of the body of the devisee, cannot. include general heirs, who are not of his body. Again, can it be doubted that the testator intended, in the event of the death of his daughter, or of her husband, without issue of their bodies, to give the estate to the heirs of the body of the survivor of them? The words for this purpose are, “or for want of such heirs or assigns, then to the heirs begotten by or of either of them, and to their assigns for ever.” The expressions “heirs begotten by or of either of them” have precisely the same meaning here, that they'have in the devise of the particular estate. But the word “assigns,” used in the first, and in the latter part of the clause, might well be construed differently, for the purpose of effectuating the intention of the testator; and that for the following reason. If they are construed in the first part to give a fee simple to the husband and wife, in violation of the obvious intention to give only a fee tail, the rule t>f law would not permit the equally evident intent, in favour of those in remainder, to take effect; because it would then amount to a limitation over, after a fee simple, dependent upon an indefinite dying without issue; which the policy of the law will not tolerate, even in wills, the favoured instruments of courts of justice. But the same reason does not apply to prevent the enlargement of the estate in remainder, by force of the same expression; because if the testator meant, in both cases, to give a fee simple, -yet as he still more clearly intended to limit a remainder upon the first estate in the event of a dying without issue; such intention might be gratified by construing “assigns” where they are last used, so as to enlarge the estate into a fee simple, and yet to give a different construction to the same expression in the first part of the clause. These observations are made, not with a view to decide what estate passed to the remainder-man, as that question is not involved in this cause; but are merely intended to show, that because the word “assigns” might have the effect of converting the estate in remainder into a fee simple, without violating the intention- of the testator, or the rules of law, it does not follow that it should be so construed in the devise of the particular estate, when by doing so, it would defeat the manifest intention of the testator, by bringing it into collision with the rules of law. What the testator meant by the use of the words “or assigns forever,” in the devise of the particular estate, it is not easy for us to say. Possibly he might have meant to apply them exclusively to the personal estate, reddendo singula singulis; which, he may have known, could not be intailed. Or he may have used them, as they are used in deeds, when superadded to heirs, without any meaning or operation whatever. Be this as it may, they cannot admit of the construction contended for by the defendant’s counsel, without defeating the manifest wishes of the testator, which is a sufficient reason for rejecting it.
Many cases were read by the defendant’s counsel to show, that certain expressions in one part of a will, may be resorted to, to enlarge the particular estate given in another part; such as charging it with payment of debts, the use of the word “estate,” and the like. But it will be found, upon an examination of those cases, that they apply to devises of mere freehold estates. There is not one of them which bears upon an estate of inheritance in fee tail, devised by appropriate words, and especially where an estate is limited over upon a general dying without issue. We are therefore of opinion that an estate tail passed to Jonathan Wright, and to his wife, in joint tenancy.
The next question is, whether the lessor of the plaintiff is prevented from recovering in this action, on account, either of defect of title, or want of remedy? These are the two objections urged by the defendant’s counsel under the second and third heads of their argument, and which we shall combine, for reasons [697]*697-which will be perceived when the objections are examined.
The plaintiff's counsel have contended that the estate tail created by the will of Peter Fretwell was not affected by the act of 1784 (Patt. Laws, 53) and the explanatory act of 1786 (Patt. Laws, 78), because Fretwell Wright, the first in descent, was not in the year 1784 in possession of the premises in controversy; that consequently he continued tenant in tail when he died; from which time, and not before, the right of the lessor of the plaintiff, his issue in tail, accrued; that the deed of Jonathan Wright to Henry Scott, and that of his son Jonathan to the same person in 1754, neither nor both of them, discontinued the estate tail, or passed an estate that could endure longer than the life of Jonathan, the first tenant in tail; or, that at most, it was a base fee; and finally that the instrument called a release, executed by Fretwell, dated in 1743, could not affect the right either of hinrelf, or of his issue in tail, not only for the reasons assigned in respect to his father's deed, but because there was no second party to it; but even if it operated as a deed of bargain and sale, that still it could only affect the estate of the bargainor, and not that of his issue in tail, whose right did not accrue before the year 1797, within twenty years from which period, this action was commenced. It is further insisted on the same side, that since Scott held under the above deeds, he held under the grantors, and not adversely to Fretwell Wright; for which reason it is argued that the act of limitations did not begin to run against the lessor of the plaintiff till after his death; and again, that even if the act of limitations had commenced its operation against Fretwell Wright, still his heir in tail could not be affected by it, because if his title could not be defeated or impaired by his acts, neither could it be by his laches.
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WASHINGTON, Circuit Justice.
The following objections have been made to the title of the plaiDtiff, and his right of recovery: (1) That the will of Peter Fretwell passed to Jonathan and Eliza Wright a fee simple estate. If so, the lessor of the plaintiff, who claims as the eldest son of Peter F. Wright, can have no title to the lands in question, which were sold and conveyed by Jonathan Wright his grandfather. (2) But if the estate was a fee tail, then it is objected, that the estate tail was converted into an estate in fee simple by force of two acts of assembly of this state, passed in the years 1784 and 1786, which operated to defeat the estate of the issue in tail. (3) That the plaintiff is barred by force of the act of limitations.
In construing the above recited clause of Peter Fretwell’s will, the court will take care not to forget the maxim equally contended for by the counsel on both sides, and which all the cases upon the subject inculcate, that the intention of the testator apparent in the will, is to govern the construction, if such intention be not inconsistent with the established principles of law. We think there is no difficulty in discovering the intention of this testator, and it is quite clear to us that this intention entirely harmonizes with the rules of law. Gan it admit of a doubt that the testator intended, in the first instance, to give to his daughter and to his son-in-law, a joint estate in fee tail, excluding for a moment, the words “or assigns for ever?” The words are “to his well beloved daughter, and to her husband J. W. and their heirs begotten of their bodies.” The most unlettered man, however'ignorant he may be of the difference between a fee simple and a fee tail, knows that the heirs of the body of the devisee, cannot. include general heirs, who are not of his body. Again, can it be doubted that the testator intended, in the event of the death of his daughter, or of her husband, without issue of their bodies, to give the estate to the heirs of the body of the survivor of them? The words for this purpose are, “or for want of such heirs or assigns, then to the heirs begotten by or of either of them, and to their assigns for ever.” The expressions “heirs begotten by or of either of them” have precisely the same meaning here, that they'have in the devise of the particular estate. But the word “assigns,” used in the first, and in the latter part of the clause, might well be construed differently, for the purpose of effectuating the intention of the testator; and that for the following reason. If they are construed in the first part to give a fee simple to the husband and wife, in violation of the obvious intention to give only a fee tail, the rule t>f law would not permit the equally evident intent, in favour of those in remainder, to take effect; because it would then amount to a limitation over, after a fee simple, dependent upon an indefinite dying without issue; which the policy of the law will not tolerate, even in wills, the favoured instruments of courts of justice. But the same reason does not apply to prevent the enlargement of the estate in remainder, by force of the same expression; because if the testator meant, in both cases, to give a fee simple, -yet as he still more clearly intended to limit a remainder upon the first estate in the event of a dying without issue; such intention might be gratified by construing “assigns” where they are last used, so as to enlarge the estate into a fee simple, and yet to give a different construction to the same expression in the first part of the clause. These observations are made, not with a view to decide what estate passed to the remainder-man, as that question is not involved in this cause; but are merely intended to show, that because the word “assigns” might have the effect of converting the estate in remainder into a fee simple, without violating the intention- of the testator, or the rules of law, it does not follow that it should be so construed in the devise of the particular estate, when by doing so, it would defeat the manifest intention of the testator, by bringing it into collision with the rules of law. What the testator meant by the use of the words “or assigns forever,” in the devise of the particular estate, it is not easy for us to say. Possibly he might have meant to apply them exclusively to the personal estate, reddendo singula singulis; which, he may have known, could not be intailed. Or he may have used them, as they are used in deeds, when superadded to heirs, without any meaning or operation whatever. Be this as it may, they cannot admit of the construction contended for by the defendant’s counsel, without defeating the manifest wishes of the testator, which is a sufficient reason for rejecting it.
Many cases were read by the defendant’s counsel to show, that certain expressions in one part of a will, may be resorted to, to enlarge the particular estate given in another part; such as charging it with payment of debts, the use of the word “estate,” and the like. But it will be found, upon an examination of those cases, that they apply to devises of mere freehold estates. There is not one of them which bears upon an estate of inheritance in fee tail, devised by appropriate words, and especially where an estate is limited over upon a general dying without issue. We are therefore of opinion that an estate tail passed to Jonathan Wright, and to his wife, in joint tenancy.
The next question is, whether the lessor of the plaintiff is prevented from recovering in this action, on account, either of defect of title, or want of remedy? These are the two objections urged by the defendant’s counsel under the second and third heads of their argument, and which we shall combine, for reasons [697]*697-which will be perceived when the objections are examined.
The plaintiff's counsel have contended that the estate tail created by the will of Peter Fretwell was not affected by the act of 1784 (Patt. Laws, 53) and the explanatory act of 1786 (Patt. Laws, 78), because Fretwell Wright, the first in descent, was not in the year 1784 in possession of the premises in controversy; that consequently he continued tenant in tail when he died; from which time, and not before, the right of the lessor of the plaintiff, his issue in tail, accrued; that the deed of Jonathan Wright to Henry Scott, and that of his son Jonathan to the same person in 1754, neither nor both of them, discontinued the estate tail, or passed an estate that could endure longer than the life of Jonathan, the first tenant in tail; or, that at most, it was a base fee; and finally that the instrument called a release, executed by Fretwell, dated in 1743, could not affect the right either of hinrelf, or of his issue in tail, not only for the reasons assigned in respect to his father's deed, but because there was no second party to it; but even if it operated as a deed of bargain and sale, that still it could only affect the estate of the bargainor, and not that of his issue in tail, whose right did not accrue before the year 1797, within twenty years from which period, this action was commenced. It is further insisted on the same side, that since Scott held under the above deeds, he held under the grantors, and not adversely to Fretwell Wright; for which reason it is argued that the act of limitations did not begin to run against the lessor of the plaintiff till after his death; and again, that even if the act of limitations had commenced its operation against Fretwell Wright, still his heir in tail could not be affected by it, because if his title could not be defeated or impaired by his acts, neither could it be by his laches.
- The court cannot agree with the counsel in many of the above propositions, and altogether dissent, from the conclusions drawn from them. If the release, as it is called, by Fretwell Wright, were out of the case, there could be very little doubt as to the operation of the act of limitations. We will examine the case, then, first, as if this instrument had not been 'executed; and second, as it may be affected by it.
1. Before we proceed further in the investigation of these questions, it will be proper to attend to the language of the acts of limitations. and particularly to those which passed on the 5th of June, 1787 (Patt. Laws, 81), the first section of which enacts “that sixty years actual possession of any lands, &c., uninterruptedly continued by occupancy, descent, conveyance, or otherwise, in whatever way or manner such possession might have commenced, or have been continued, shall vest a full and complete right and title in every actual possessor or occupier of such lands, and shall be a good and sufficient bar to all claims that may be made, or actions commenced by any person or persons whatsoever for the recovery of any such lands,” &c. The second section enacts “that thirty years actual possession of any lands, &c., uninterruptedly continued as aforesaid, wherever suchi possession commenced, or is founded upon a proprietary right, &c., or wherever it was obtained by a fair bona fide purchase of such lands of any person whatever in possession, and supposed to have a legal right and title thereto, or of the agent, &c. shall be a good and sufficient bar to all prior locations, rights, titles, conveyances or claims whatever, not followed by actual possession as aforesaid, and shall vest an absolute right and title in the actual possessor and occupier of all such lands,” &c. The first proviso in this law saves the rights of a person under the usual disabilities existing at the time the said right or title first descended or accrued, if he shall commence his action within five years after the disability removed. The second proviso is in the following words, “that any citizen of this, or any other of the United States, and his or their heirs, having right or title to any lands, &c. within this state, may, notwithstanding the aforesaid times are expired, commence his or their action for such lands, &c. at any time within .five years next after the passing of this act, and not after-wards.” The tenth section of the act of the 7th of February, 1799 (Patt. Laws, 352), enacts “that from and after the 1st of January, 1803, every real, possessory, ancestral, mixed, or other action, for any lands, shall be brought or instituted within twenty years next after the right or title thereto, or cause of such action shall'accrue, and not after.” It may not be amiss to observe upon the second section of the first act, that the case shows that Henry Scott obtained possession of the land by a fair bona fide purchase from persons in possession, and supposed to have a legal right and title thereto. There can be no doubt but that the act of 1787 operates retrospectively as well as prospectively, with this difference, that where the sixty or the thirty years had entirely run out, at the time of the passage of the law, citizens of this, or any other state of the United States, claiming title to the land, were indulged with an additional five years within which to commence this action. But if the term was running when the act was passed, or began afterwards to run; in either ease, the lapse of the time stated in the act constituted a complete bar, unless the plaintiff could save himself, by showing that he had been under some one of the enumerated disabilities. It will readily be admitted that the possession under this law must be adverse, so far at least, as that the possession must not be held and continued under the person claiming title; and therefore, a lessee for one hundred years, which was the case put by the plaintiff’s counsel, could claim no benefit under the act, though he should re[698]*698tain the possession during all that time, inasmuch as such possession would be the possession of his lessor. How far a possession for sixty or thirty years, under a conveyance from a tenant in tail, believed to be such, would operate to bar the issue after the death of the grantor, is a question which does not arise under this head of the inquiry, and therefore need not be mooted. For the case states, that upon the death of Jonathan Wright, in 1742, Henry Scott entered upon the 225 acres conveyed to him by Jonathan Wright in 1741, and that the two sons of the said Jonathan, Ebenezer and Jonathan, entered upon the 700 acres devised to them by their father, (part of which, as well as the 225 acres, are the premises in dispute) and that in 1754, the said Jonathan conveyed the 125 acres to the said Scott. Can it then admit of a doubt, that Scott and the two sons of Jonathan Wright, claiming under his will, entered under titles opposed to that of Fretwell Wright, and consequently adverse to his title? Scott claimed, and was entitled to a base fee, by virtue of the conveyance of Jonathan Wright the elder, de-feasible by Fretwell Wright, the issue in tail; and as for the two sons, they had no title whatever. But the possession of those persons, whether with or without title, was in hostility to that of Fretwell Wright, which he claimed, not under his father, but under Peter Fretwell, the donor. From the year 1742 then, to a period exceeding even sixty years, there was, in the words of the first section of the act, an actual possession, uninterruptedly continued by occupancy or otherwise; and this, the act declares, shall not only bar all claims and actions commenced for the recovery of the land, but shall vest a complete title in the possessor. It is to be remarked that this possession is unaffected by either of the provisions in the act, so far as we are informed by the case before us.
But it is contended by the plaintiff’s counsel. that the lessor of the plaintiff is not within the operation of the above act, because he claims paramount to the title of Fretwell Wright, and that he cannot be barred, unless the title had run against him after his right commenced, or accrued in 1797, upon the death of Fretwell Wright. This doctrine is altogether untenable. It is opposed as well by the words, as by the obvious meaning of the act. It has been already shown, that the right of Fretwell Wright accrued in 1742, and consequently, that the time then began to run; and it is a clear principle of law, that in such a case it continues to run on, as well against the issue in tail, as against the tenant in tail, against whom it commenced its operation. The language of the first section of the act is general, as to all estates without exception; “in whatever way or manner such possession might have commenced, or have been continued.” The act then applies as well to the claim of a tenant in tail, as to any other title. Yet the argument we are examining, if sound, would substantially exclude from its operation a title gained by length of possession, when opposed by the claim of a tenant in tail; which, particularly after the act of 1784 respecting intails, would be a construction altogether inadmissible. For if the length of time, during which the tenant in tail is bound to bring his action, does not run on so as to affect his issue when he becomes entitled to the estate, then he, and his issue in succession ad infinitum, -would be entitled to the benefit of the same length of time to make his claim, after the death of his ancestor; which would in effect do away the operation of the act altogether, as to estates tail. Supposing then the release of Fretwell Wright to be out of the case, we are of opinion that the title of the lessor of the plaintiff is barred by the act of limitations.
2. Taking the case as affected by the release, it is contended that the acts of 1784 and 1780, did not enlarge the estate of Fret-well Wright or of his alienee, but that he died tenant in tail of this estate, and having estopped himself by his release to claim or to sue for the same in her life time, the act of limitations did not begin to run until 1797, when, and not before, the title of the issue of Fretwell Wright accrued, before which time, the possession obtained by Scott under the release was not adverse. We have no doubt but that the effect of the acts of 1784 and 178G, was to unfetter estates tail from the restraints of the statute de donis, whether the tenant in tail was in possession when the act of 1784 passed, or whether the estate then existed as a base fee in possession of his alienee. Den v. Robinson, 2 South. [5 N. J. Law] 793, seems completely to have decided this point, and we think rightly. These acts then being clearly intended to defeat the title of the issue in tail, or in other words, to dock the intail in a case like the present, they operated like a common recovery to enlarge the estate of the alienee into a fee simple. Now we hold it to be perfectly indifferent, whether the plaintiff’s or defendant’s counsel is right, as to the validity of the release, so called, of Fret-well Wright. If it be valid then, by force of the above acts, it passed to Henry Scott a fee simple estate in the premises, and the lessor of the plaintiff can have no title as the heir of Fretwell Wright the grantor. If it was void, then it has been already shown that the plaintiff is barred by the act of limitations, which began to run upon the death of Jonathan Wright, in 1742.
The case in short stands thus: Upon the death of Jonathan Wright, the right to this estate vested in his eldest son Fretwell Wright, as issue in tail, notwithstanding his father’s conveyance to Scott, and the devise in his will to Jonathan and Ebenezer; and Fretwell Wright might then have commen[699]*699ced his action.- If his title was unaffected by his release, and also by the acts of 1784 and 1780, then the act of limitations began to run in 1742, and an adverse possession of more than sixty years, previous to the bringing of this action, had run out against the lessor of the plaintiff. If the release was a valid instrument, and the acts of 1784 and 1780 unfettered the estate tail, then the title of the issue in tail of Fretwell Wright was defeated; the estate of the grantee.was enlarged into an estate in fee simple; and the. heir at law of Fretwell Wright, who must claim under the grantor, and cannot claim paramount to him from the donor, can have no title against the grant. So that take the case under any and every aspect, the lessor of the plaintiff cannot recover.
The view which we have taken of this case, renders it unnecessary to notice many of the arguments at the bar which were much pressed upon us. Judgment for the defendant in each ease.