Moss against Sheldon, 3 Watts & Serg. 160

The opinion of the Court was delivered by Sergeant, J. The question in this case is as to the effect of the habendum in controlling and qualifying the estate granted in the premises.

By the premises the estate given to Eleanor would be construed an estate tail vested in her, notwithstanding after the limitation to her and the heirs of her body legally begotten or to be begotten who shall survive her, it is declared that it is to be divided equally amongst them, or to such issue of such, (the grandchildren of the grantor), who may survive their i’espective parents, to be apportioned and divided by stocks and not by heads—however, the issue of each stock to divide the parents’ portion, share and share alike.

For if this latter limitation could be considered as a remainder to the surviving children or their issue, to take by purchase, yet, as it is not a grant in fee, but only for life, it would defeat the main object of the grantor, which was to give an estate of inheritance; and on the decease of the last survivor, the estate would revert back to the grantor or his heirs. The effect of the habendum, however, is different.

It expressly declares the estate of Eleanor to be but an estate for life, and passes the estate over to the issue in fee simple; thus abridging her former implied estate tail into an estate for life, but enlarging the estate of the issue into a fee simple. It is said that an habendum in a deed may lessen, enlarge, explain or qualify, but not totally contradict, or be repugnant to the estate granted in the premises. 2 Bl. Com. 298. As if a grant be in the premises to A. and his heirs, habendum to him for life; the habendum would be utterly void. Ibid.; 2 Rep. 23; 8 Rep. 56.

Yet even this position seems to be questioned, in modern times, (see 1 Shep. Touch., by Preston, 102): and it is decided that the words, heirs of the body, in the habendum, qualify the word-, heirs, in the premises, so as to make it an estate tail. Ibid.; 4 Cruise 292. In Pilsworth v. Pyet, (T. Jones 4), there was a demise of a tenement to Pyet and his heirs, habendum to him and his heirs for three lives; and the habendum was held by the court to expound the premises, and that the lessee and his heirs should have the estate for the three lives.

But it is not necessary to pursue further the abstract question of the power of the habendum to abridge the estate granted in the premises, because it is clear, by the current of all the authorities, that it may enlarge, expound, qualify and vary it: and in the case before us, it does all these. Although it lessens the estate of Eleanor Mercer from a tail to a life estate, yet it enlarges that of her issue from an estate tail to a fee simple; and they are objects of the grant in the premises, as well as Eleanor Mercer.

This construction accords with the intent of the instrument, taken together and construed as a whole. We therefore think the plaintiff is entitled to one-sixteenth of the property in fee simple. Judgment for plaintiff for one-sixteenth.