HAMNER, Adm'r, vs. SMITH, 22 Ala. 433

CHILTON, C. J’. The question to be decided by us is, whether the deed from Alexander Graham vested in the intestate the absolute property or only a life interest in the slave Eliza, who is the mother of the other slaves in controversy. The cardinal rule which must govern in all such inquiries is, to arrive, if possible, at the true intent and meaning of the grantor, from a fair consideration of the whole instrument, and then to give effect to such intention, if it can be done without a violation of any rule of law.

In arriving at this intention, it is proper to have regard to the character of the written instrument, as to whether it is formal and technical, bearing upon its face evidence of its having been prepared by a skillful draftsman, or is inartificial, affording proof, by the language in which it is couched and the collocation of its sentences, that it was written by a person unskilled in legal technicalities, and probably unacquainted with the meaning and force of many expressions employed in it.

In construing the former, it would be proper to subject it to the technical rules of law as most likely to lead to a correct result, while with respect to the latter, a much greater latitude of construction is indulged. Saunders v. Saunders, 20 Ala. Rep. 710. Conceding, however, that the instrument before us was drawn by a man wholly unacquainted with legal forms, and applying to it the most liberal rules of

interpretation, it is impossible, we think, to arrive at the conclusion that the donor designed to give to his daughter a life estate merely. He gives the slave and all her issue to her, not for life, but absolutely, without any qualification as to the duration of her interest contained in the granting words. Had he intended her to take only a life interest, it is quite improbable that the grantor, however artless and ignorant he may have been, would have omitted the simple words qualifying the grant— “ I give to my daughter for life,” or “ to have and hold during her life,” &c.

Such language would readily occur to the most uncultivated mind, capable of comprehending the commonest forms of expression; and its omission is pretty clear proof, that it was not intended to make the instrument so operate.

He declares, “ I have given her a certain negro girl named Eliza, about ten years old, with all her issue,” — and no doubt laboring under the impression, not uncommon among those ignorant of law, that a title is not perfect unless assured by what they call “ a general warranty deed,” he proceeds to insert a warranty: “ which said negroes I warrant and defend to the said Mary Gordon during her life ”■ — -that is, he would protect her title and ownership so long as she should live, and after her death, when her heirs should come to the succession, he would in like manner protect their title — ’“and to her heirs afterwards, (especially those who in the course of Providence may live the longest with her) against the lawful claims of all persons,” &c.

He would not only protect the interest which might, subsequently to his daughter’s death, vest in her heirs, but he would feel under peculiar obligations to see to it that the interests in the property of those of the heirs who had lived the longest with her, should be rendered available to them. It is insisted, that a warranty in a deed of gift is nugatory. Grant this; but the donor was unlearned in the law, and consequently may not have known that such was the fact.

Whether he did or not, however, makes no difference; for it is impossible, by any just rule of construction, to construe the words of this warranty into a grant to the heirs of Mary Gordon, thus limiting her to a life estate. If the design was to create a life estate, with remainder over, to take effect upon the death of Mary, to whom is the remainder limited ? The slave is warranted to her during her life, and to her heirs af-terwards.

If this creates a remainder, it is in favor of all the heirs of Mary; but how can this consist with the expression, “ especially those who, in the course of Providence, should Jive the longest with her ?” To give the property to all, and especially to some of the class, which latter expression implies an exclusion of such of them as did not live the longest with Mary, is repugnant in itself; whereas, treating it, as it was evidently designed by the donor, as a guaranty on his part to protect and maintain the title to all the heirs, and especially to those who should live longest with the donee, although inoperative as a warranty, yet, to one ignorant of that fact, there is nothing repugnant or absurd about it; and this view harmonizes with the inartificial character of the instrument.

But conceding the words u warrant and defend,” as used in this deed, to be equivalent to “ grant,” or “ give,” and even then, it is very clear, according to numerous authorities of this and other courts, that an absolute estate vested in the first taker. It is supposed that the word “heirs” is qualified by the expression “ especially those who shall live the longest with her,” inasmuch as they could not be her heirs while living with her. Hence, say the counsel, the term designates a class, and is but descriptio personarum.

But the donor does not limit the property to her heirs while she is living, but afterwards— after her death, then to her heirs and especially to those heirs who before her death had lived the longest with her. We cannot see how this expression can convert the term “ heirs ” into a designation of a particular class, who are to take from the donor, under the deed, and not as heirs of Mary Gordon. We have listened with much attention to the argument of the learned counsel, in opposition to the authority of the case of Ewing v. Standifer, 18 Ala.

Bep. 400 ; and having examined that decision with much care, we do not hesitate to reaffirm it as the law. As to the words of distribution super-added to the limitation over in that case, and which the counsel supposes entirely escaped the observation of the court, we have only to say, they have overlooked that portion of the opinion; for on page 403, in quoting from Mr.

Lewis’ treatise on the law of perpetuity, we say, speaking of the terms “ issue and heirs of the bodyThey are generally and primarily words of limitation, i. e. do not carry the legacy to the person answering that description, but describe and regulate the quantum of interest to be taken by such ancestor; and this construction is not varied by the circumstance of words of division or distribution being superadded to the gift to the issue; nor will that of a gift over in default of issue afford a sufficient reason for construing the word “ issue,” otherwise than a word of limitationand we say further in that case, that the will providing for a distribution equally among all the heirs, made the same disposition of the property which the law, without it, made.

It cannot be contended that our law makes an unequal division of the property among the heirs — for if they stand in equal degree, they take per capita, each an equal share; if some of them who would have inherited be dead, leaving children, the latter take^er stripes — by right of representing their ancestors, and inherit through them. It is, however, unnecessary now to add to that opinion, since the authorities cited in it, we think, fully sustain the law as there declared. In the case before us, as in the case of Ewing v.

Standifer, there is nothing showing that the term “ heirs ” has any other-than its primary meaning. The expression included in parenthesis (“ especially those who may, in the course of Providence, live the longest with her,”) which, it is insisted, explain and limit the word “heirs” to a particular class, and make it a description of the particular persons to take, is more general and indefinite than the term to be explained. Those heirs who may have lived the longest with her, might have been children, or grand children, or, in default of lineal descendants, her collateral relations.

In short, they must fill the character of heirs, and then they do not take to the exclusion of other heirs. But we re-assert the ancient canon of the common law, that when they take in the character of heirs, they must take in the quality of heirs, (Jones v. Morgan, 1 Bro. C. R. 206; 4 Kent’s Com. 236, top page, 7th ed.;) and consequently cannot take as purchasers. But it is said that the rule which is invoked is odious, and that the courts are astute to seize upon very slight circumstances to get round it. For my own part, I think the rule in Shelley’s case founded in wise and sound policy.

It furnished a solid and stable rule of property, cut off strife and litigation, resulting from the pursuit of loose and conjectural intentions, by giving a fixed and determined meaning to certain expressions; and while it contributed to the free circulation of property, by divesting it of clogs which prevented its alienation, at the same time it afforded ample scope for attention to future provisions to meet family exigencies,, which the interest of society required should not be wholly overlooked. Lewis on Perp. 4; 4 Kent, 227 mar.

We may well admire judicial acumen, when exerted to ascertain what the law is, in order that, when ascertained, whether it be good or bad, it may receive from the judge an implicit obedience; but I humbly conceive there is no principle more dangerons in the administration of justice, than that which justifies the resort on the part of the judge to slight, flimsy, unsatisfactory shifts to avoid what he conceives to be an odious rule of law. He may meet the justice of the particular case, but the precedent unsettles the law, and tends to make shipwreck of principle.

In a word, the judge becomes the arbitrator, rather than the interpreter of the law. “Bouv. Die. Tit. Judge.” I would not be understood as applying these remarks to the judge who tried this cause. They are general, and designed as a response to that class of decisions cited by the learned counsel, which, with becoming humility, I conceive to be obnoxious to such criticism. After the best examination we are enabled to give this case, we all agree that, in either view of this instrument, it vested in the plaintiff’s intestate the absolute property in the slaves.

It follows that the judgment in the court below must be reversed, the non-suit set aside, and the cause remanded.