#### Foscue, executor, &c. v. Foscue.

") I From Carteret. J

Where slaves were given by deed to A B and C D, to them, their heirs and assigns for ever, “ immediately after the death of” the grantor, reserving tiie use and profitB of the slaves to the grantor dur- ! inghis natural life, and after his death to the said A IÍ and • ' I), it * was held, that as there could not be a limitation of a remainder in a personal chattel upon a precedent estate for life by deed, that the deed operated nothing, but left the property in the donor as it was before.

This was an action of detinue to recover a negro slave Tom, and came on to be tried below before Badger, Judge, when a verdict was taken for the plaintiff, subject to the opinion of the Court on a case stated and reserved; and if the opinion of the Court be for the plaintiff, then judgment to be rendered for him; if for the defendant, then the verdict to be set aside and a nonsuit entered. The case reserved is as iollows:

The negro slave belonged to Simon Foscue the cider, who died in possession of the said slave, having first made and published his last will and testament, of which he appointed the plaintiff executor. After testator’s death, the plaintiff proved the will and took the negro into his possession; afterwards, and before the bringing of this suit, the defendant obtained possession of the slave, claiming under a deed executed by the testator in his life time, and *539retained that possession up to the present time: the deed' was in these words:

This indenture, made this 20th day of April, in the year of our Lord 1809, between Simon Foscue, Sen. of the county of Jones and state of North-Oarolina, of the one part, and Lewis Foscue and Sarah Foscue, son and daughter of the said Simon, oí the other part, witnessed), that the said Simon Foscue, for and in consideration of the. natural love and affection which he has and beareth unto the said Lewis and Sarah Foscue, also for their better maintainance and preferment. have given, granted, conveyed and comfirmed, unto the said Lewis and Sarah Foscue the lands and negroes herein after mentioned in manner and form following, to wit: (o Lewis Foscue two negroes named Martin and Tom, a’so one half of that tract of land whereon I now live on the upper part of said tract, reserving to my wife Betsy Foscue her dower right during her life or widowhood; to Sarah Fos-' cue, four negroes named Nero, Charles, Peter and Lucy; which said land and negroes above mentioned, the said Simon Foscue, sen, doth hereby give, grant, alien, enfeoff, convey and confirm unto the said Lew is and Sarah Foscue, to them, their heirs, and assigns for ever, immediately after the death of the said Simon Foscue, sen. the said Simon reserving to himself the use and profits arising from the said land and negroes aforesaid for and during his natural life, and after my death, unto the said Lewis and Sarah Foscue, to them, their heirs and ass signs for ever. In witness whereof, &c.

(Signed) Simon Foscue, sen. [i. s.]

By the will this negro was bequeathed to one Stephen Foscue, who, before the action brought, released to the plaintiff all his interest under the bequest. Upon these facts the Court below was of opinion, that as by the terms of the deed nothing was to vest in the defendant until the death of the donor; and as by the policy of the law, there could not be a life estate in a personal chattel in one, and a remainder limited thereon to another; therefore the deed operated nothing, but left the property in the donor as it was before.

The defendant’s counsel then moved to arrest the judgment for a variance between the writ or leading process and the declaration: tiie writ being, to take the body of the defendant to answer “Simon Foscue-, executor of Simon Foscue deceased,” and the declaration upon the plaintiff’s own possession, in the usual form. The motion was ovei'-*540ruled, and judgment rendered for the plaintiff, whereupon defendant appealed to this Court. 1 x

Gaston, for the appellant.

I. This deed may operates© as to carry into effect the full intent of the parties. On an examination it will be found to intend to convey to the son the property in the things given, but so as that during the father’s life he may have the profits. Lei it be examined in detail, and in con-nexion, this intent is apparent.

It is evidently a conveyance made without legal aid, and emphatically requires a favorable exposition. {Bacon, “Lease,” K. 3 Mk. 136. 1 Mk. 8.)

It is an intent perfectly consistent with every maxim of law, violating no principle of justice, infringing on no rule of public policy. Though donor gives, he may secure for life the profits of the thing given. He may an - nex a condition to every disposition which he makes of his own, whether real or personal. {Shep. Touch. Condition, 115, 116.) He may give money on condition, and if it be broken he may have accompt. {Ibid, Grant, 240.)

Gifts of chattels on condition, the donor to have all the profits, were good at common law. {See Slat. 3 H. 7. ch. 4.) There may be found a precedent of a deed of gift, donor to have profits during life. (5 Woods Conv. Gifts, 3.)

The whole objection is founded on the solitary clause, “ which S give after my death.” Even unexplained these may mean give now, to take effect in possession after my death. Doe v. Folgrean, (1 M. Bl. 536, 540.) But an explanation is immediately subjoined, showing in express terms this to be the design of the words.

Every rule of good sense and of positive law, forbids the interpretation alleged, and supports that for which appellant contends. The construction should be made on the entire deed. {Shep. T. 87.) It should give the whole deed effect if possible. {Ibid.) If words will fiear two in-tendments, that consistent with law shall be taken {Ibid.)

*541There are various instances given of the astutia of the judges so to expound deeds as to prevent illegality or failure. (Ibid 83, 84. 1 Go. Inst. 183 &.) The ordinary cases of powers; words giving lands or goods will not be construed an execution of the powers, unless it appear by reference to the subject matter, or because otherwise unavailing, they were so intended.

The subject matter of this deed urges on the Court the necessity of a liberal interpretation. Law, though inflexible in principle, should be accommodated in practice to the exigencies of society. This case is entirely distinguishable from Graham v. Graham, (2 Hawks 322.) The only words of grant there are, “ give at my death;” there is no explanation from the context. It was impossible there to say he gave property and reserved use. There the Court were obliged to choose between reason and established law; here we can reconcile both.

2. If this deed cannot have entire effect, it is had os to the life estate reserved. “ Verba fortius accipiuntur contra proferentem.” Better that it should operate in part, than be wholly null. There is no more reason that one phrase, favorable to grantor, should be relied on, than there is that the other favorable to grantee should. It is apparent that the only stipulation for donor was a reservation for life. See Duncan v. Self, (1 Murph. 466.) Vass v. Hicks, (3 Ibid 493.)

Badger, for the appellee.

The bill of sale from old Foscue to the defendant is inoperative and void.

Whenever by the terms of a deed the whole estate in a thing is limited to one, any limitation over must of course he void; for it is a limitation in remainder where (in legal estimation) nothing remains. So where a grant is made to one to take effect after the whole estate of which the thing is capable is expended, nothing can pass to the grantee, hut the whole remains as before in the grantor. So, if the whole estate be granted to one pr.e-*542á'ently, ahdtheii the whole estate.be reserved to the gran* tor, such reservation is void, because the whole interest. passing to the grantee, the reservation oí the whole is repUgnant.

The validity of this deed is tó he settled by the application of principles well known and long established in another department of the law.

If land be given by deed operating under the statute Of uses to A and his heirs from and after the death of the grantor and his heirs, nothing passes to A, for nothing is given presently, and what is given hereafter cannot take effect till in judgment of law the whole estate is given; and it makes no difference, that in fact the grantor may die without heirs, living the grantee or sotne of his heirs.

If land be given to A and his heirs, remainder to B and his heirs, B takes nothing, because A has all the estate of which in law the land is capable.

If land be given to A and his hairs presently, reserving the same land to the grantor and his heirs, such reservation is void and A has the whole.

But a life estate in a personal chattel is in law the whole estate in that chattel; and the existence of the chattel after the death of the tenant for life is such a mere contingency that no limitation can be made upon it by any act inter vivos.

This bilí of sale is, therefore, void; because, it gives the slave to the defendant from and after the death of the donor, that is after the whole estate is expended.

But it is contended on the other side that the deed does give a present interest; and that if it does not, yet it may be supported upon what’seems to me to be a singular construction.

The counsel has cited Bacon’s Abridgment, 1 Atkins, and Shep. Touch, to show that a construction is to be ma le on the entire deed; that deeds will be construed to advance the intent of the parties; that in general a man *543who has a thing may condition with it as he will, and that a man may grant op give away his money. And ho has cited Co. Litt. 183 6. to show that a feoffment to two men, and the heirs of their two bodies begotten, shall give them a joint estate, for life with several ran antlers in tail. These simple propositions, well known and esr tablished, I certainly shall not attempt tp dispute. They have, I think, nothing to do with the question presented to the Court. It is only necessary to read this deed' attentively to see, that in every part of it, the estate is limited to take effect, in interest as well as possession, after the death of the donor, and that nothing passes by the terms of the deed until that, event, The skill of the counsel has been exhausted to no effect in endeavoring to make any other construction tenable-. I infer, therefore, that no other construction can be made.

The case, therefore, is precisely the case of Graham and Graham, decided in this Court. That case is not ip the least effected by the caséis of Vass and wife v. Hicks, in 3 Mnrphey, nor the case in 1 Mnrphey 466i. The case, of Hoe v. Folgrean, was the limitation of a term for years,. The precedent in Woods’ Conveyancing, is a conveyance to trustees, and at all events does not appear to havo been supported by any adjudged case, and shows only the opinion of the writer. But if all these cases were opposed to the construction and legal effect of such a deed now contended for by us, it is sufficient for me to say, thist Graham v. Graham is a decision upon the very point, made in this Court after argument and upon reviewing the authorities. If that case is erroneously decided and the Court think fit to disregard it, it will be overruled; if the Court shall adhere to that case, it will not be a reluctant adherance, leaving us to suppose that the case will furnish no authority, except upon the construction of deeds which are exact transcripts of the deed then expounded by the Court.

Upon the authority of Graham v. Graham, stfimorted *544as it is by principles and decisions, and indirectly fortified by an expression of legislative opinion in the act of 1823, that the law was as decided in that case, we rely. The case of Graham v. Graham, not frittered away by any nice and verbal distinctions, but acknowledged as an authority for the principle it determines, is decisive of the present case.

Badger, for the appellee,

was then about to argue the motion in arrest of judgment made in the Court below, when the counsel for the appellant said the reasons in arrest were given up.

Hade, Judge,

delivered the opinion of the Court.

This case, I think, falls within the principle on which the case of Graham v. Graham was decided in this Court. (2 Hawks 322.) From the words of the deed, the title of the property in question was not to vest in the donee until after the death of the donor; a life estate is reserved to the father; after his death a limitation of it is made to the son. It is cause of regret, that a disposition of property so just and simple in itself, cannot be sustained.

The legislature, by an act passed in 1823, have made provision for such cases. But, unfortunately, this deed is not included in it, having been executed anterior thereto. The opinion of the Court is, that judgment must be entered for the plaintiff.

Judgment aeeirmed.