Southampton, was adjudged to remain in the Heirs of the Devisor; the Duke himself not being capable to take it. That here being no Person able to take under this Deed and Fine during the Husband's Life, it shall be construed to remain as it was before, till that Life ends; and then the Use ought to take effect: For, otherwise, both the Deed and Fine are to no Purpose, they are all in vain; and the Intent of the Parties to it is defeated. And there were cited the Lord Paget's Case in 1 Anderson, and Woodlett and Denny, 2 Crook 439, and 1 Leon. 256.
Argument for Defendant in Error.—On the other Side it was argued with the Judgment, that this Deed and Fine can raise no Use to the Heirs of the Husband according to the Rules of Law. It was insisted, That if Husband and Wife do levy a Fine of the Wife's Land, and no Uses are declared, or such Uses are declared, as are void and can never take effect; such Fine is to the Use of the Wife and her Heirs: That in such Case the Estate remains as it was; or if the Fine operates any Thing, it shall be for the Benefit of the Party to whom it did belong before.
Then it was urged, That this was designed to raise an Use immediately to the Heirs of the, &c. and that there was no Person capable of taking at the Time of levying this Fine: The common Maxim in the Law proving it, quod nemo est hæres Viventis. That the Name and Nature of an Heir import a Successor after Death; that this being designed to raise an Use ex præsenti, and no Person being capable of taking at that Time, the same must be void. That this is the Case of a Deed executed in the Life-time of the Parties: And not a Will, where large Allowances are often made in favour of supposed Intentions, by Reason that Persons are often surprised by Sickness, and presumed to want the Assistance of Counsel; but the Rules of Law are always allowed to govern in Construction of Deeds. Then it was urged, that nothing was ever designed to the Husband himself by this. That no Words in the Deed can favour such a Presumption. That this must either work as an Estate in present, or by way of Remainder: If the latter, then by the known Rules of Law, there must be a particular Estate to support it; and such particular Estate must be either expressed or implied. Here is none expressed: And if implied, it [107] must be in the Wife: And if in her; then she dying before the Husband, her particular Estate did determine before the Remainder could take Place; and consequently by all the Rules of Law it can never take place. And no particular Estate can be implied, in or for the Husband: For that there is nothing said shewing such Intent, and if the Construction of Law be to prevail, then, as was urged before, that is in Favour of the Wife. But here it was plainly designed to take effect immediately, and therefore void; because there was no Person in Being capable of taking at the Time the Estate was intended to vest: And no Uses are to be executed by the Statute, which are limited against the Rules of the Common Law, Chudleigh's Case, 1 Rep. 129. if the Limitation of an Use be at this Day to A. for Years, and afterwards to the Use of the Heirs or Wife of B. which shall be, this is void: Because 'twould have been void, if limited, in Possession, Dyer 190. the Earl of Bedford's Case in Popham, 3, 4. and 82. resolved in like Manner to be void: Because 'twould have been so in an Estate conveyed at Common Law. And all that can be objected is, that then this is all void, which is no more than may be pretended upon every imperfect Conveyance: But here the Case is in a Court of Law, and the Defendant is a Purchaser who hath been thirty Years in Possession, tho' that doth not appear in the Case.
And it was said, That as to the Notion of a springing contingent Use, 'tis hardly intelligible in it self; and by no Means applicable to this Case: Because here are no Words in this Deed, that carry any Relation to a future Time or Contingency. And the Objection is only this, That the Conveyancer was mistaken in his Judgment; or that the Parties knew not what they meant; or that they meant to create such an Estate, and in such a Manner, as the Law will not allow: And neither of these are Reasons sufficient to prevail for the Reversing of a Judgment given according to the Rules of Law, by which Men's Inheritances have all along been governed, and upon which many Estates do now depend.
Judgment affirmed.—'Twas further urged, That the contrary Opinion, which must be advanced to annul this Judgment, would render the Law and Men's Conveyances as doubtful and uncertain as last Wills and Testaments; and submit
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