ance is attended with a heavy expence, and, in many cases, with great inconvenience. Be it enacted," &c.

In consideration of these acts of the legislature, not only recognizing the statutes of entail as introduced in Pennsylvania, but having rendered the baring them so easy, by a mere deed of conveyance, &c. I did not withhold my signature from the report of the judges, on the subject of the English statutes; but I have had, since, reason to wish that I had noted an exception with regard to the statutes of entail. My reasons of which I was not then aware, and which in great part did not exist, at least so strongly in my view, will be seen from my dissent in several cases, Binney's reports, where the questions were under devises, whether an estate in fee, or in tail was taken. It will be seen in these cases, that the judges, from whose opinion I dissented, not only adopted the strictest rules of the English courts in the construction of devises; but as I would seem to have thought, even in the application of the rules to the particular case. This however would be only matter of opinion with me, and must be judged of by others, on the strength of the reasons given. But certain it is, that the court adopted, in its utmost strictness, the English rule, that where a technical term is used, the devisor shall be presumed to mean it in the technical sense, unless it can be collected from other parts of the will, that he did not mean it in a technical sense. I would just reverse this rule; viz. that a devisor shall not be presumed to use a word in a technical sense, unless it can be collected from the whole of the will, that he did mean so to use it.

We all know who are the usual scriveners, or drawers up of last wills and testaments in Pennsylvania; the school-master of the neighbourhood; a commissioned justice of the peace, or some one that has been about the courts and has some reputation for clerkship. The schoolmaster has his Clerks' Assistant, or vade mecum, or some book of bad precedents, from which he picks terms without distinguishing the use: the justice in like manner, or other person, little learned in the law, and yet affecting much. The terms, heir, issue, begotten, &c. get in, or the arrangement

of the words, by implication is such as to be construed to mean what in fact never was intended. I am therefore of opinion to abolish the entailing estates altogether.

The person taking the estate, not dreaming that he was an heir in tail never thinks of baring it; but conveys it to an innocent purchaser, who makes improvements, and at a distant period, a defendant looking at the will, or some one for him, finds it out that he may claim the estate as entailed under the devise, and takes it with all the labour of the purchaser, the judges declaring it an estate tail, by reason of a technical term, or arrangement of words, that by implication, would seem to make it such. These things ought not to be so.

119.

"Entails" says judge Tucker in his note, 2 Bl. Com.

were formerly greatly favoured in Virginia; the statute de donis conditionalibus, extending to the colony, no act of assembly authorising entails of lands, occurs in our code. In 1710, as we have seen, they were protected from being defeated by a fine and recovery. In 1727, slaves were subjected to limitations in tail, by being annexed to lands entailed, and were to descend and pass in possession, reversion, and remainder, with the lands themselves, c. 4. Sec. 12. Edi. 1769. By the act of 1734, c. 6, Sessions acts, an abstract of which is preserved in Mereer's abridgment, title, entails, "any person seised in fee"tail of any lands, tenements, or hereditaments, not exceed❝ing the value of £200 sterling, and not being parcel of, "or contiguous to other entailed lands of the same party, "might sue out a writ from the secretary's office in the nature of an ad quod damnum to the sheriff of the county, "commanding him to inquire, by the oaths of good and "lawful men of his county, of the value of such lands, and "whether, &c. and if such lands shall be found not to exceed the value as aforesaid, and to be a separate parcel, and an "inquisition to that effect be made and returned to the office, "then a deed of bargain and sale reciting the title, and such "inquisition, wherein a valuable consideration shall be ex"pressed, and bona fide paid, acknowledged, or proved by three witnesses, before the general court, within eight

"months after the date thereof, should be sufficient in law "to pass the fee simple estate to the purchaser, and the "right of the issue of the vender, and all other persons in "remainder or reversion, should be barred, &c." This act was amended by the act of 1748, c. 1. §. 16, which requires the surveyor of the county to attend and survey the lands in the presence of the jury, and to give them an account of the number of acres. And where the tenant in tail had no issue capable of inheriting the lands, if there were a remainder over, the remainder man, or, if an infant, his guardian or next friend should have notice to attend the survey, and see that the valuation was fairly made; and the deed of bargain and sale was to be recorded in the general court within eight months. Edi. 1769. Estates, above the value of £200 sterling, were barred by private acts of assembly passed for that special purpose."

"But when the revolution took place, a different mode of thinking succeeded; it was found that entails would be the means of accumulating and preserving great estates in certain families, which would, not only introduce all the evils complained of in England, but be utterly incompatible with the genius and spirit of our constitution and government. At the first session, therefore, after the declaration of independence, an act passed, declaring tenants of lands, or slaves in tail, to hold the same in fee simple. This act avoids all estates tail in possession, reversion, or remainder theretofore created by deed, will, act of assenibly, or any other ways or means, or thereafter to be created, any words, limitations, or conditions in the deed, will, or act of assembly, or other in. strument to the contrary notwithstanding; and further declares, that every estate, so created, shall be held in full and absolute fee simple. This act is further confirmed by the acts of 1785 and 1792, which declare, that every estate in lands which hath been limited since the seventh day of Octo ber, 1776, or hereafter, shall be limited, so that as the law. aforetime was, such estate would have been an estate tail, shall be deemed to have been, and continue an estate in fee simple. The act of May, 1783, declares, that all estates i

lands or slaves which have become, or shall become escheatable to the commonwealth, by virtue of the "act declaring tenants of lands or slaves in tail, to hold the same in fee simple," for defect of blood, shall descend, and be deemed to have descended agreeable to the limitations of the deed or will creating the same. But that act does not extend to lands or slaves which had been escheated and sold. L. V. Oct. 1776, c. 26 May 1783, c. 27. Edi. 1785. Sessions

acts of 1785, c. 62. Edi. 1794, c. 90. Sect. 9, 10, 11."

"In the construction of these acts, it has been decided, that by the act of October 1776, for docking entails, all remainders, as well contingent as vested, are utterly barred, whether the entail be created before or after passing the act. And though executory devises of lands, after a devise thereof in fee simple, may still be created as before that statute, yet the court will not, in order to avoid the effect of the statute, construe that to be an executory devise, which, before, would have been held to be a contingent remainder. Carter, vs. Tyler, and also 1 Call's Rep. 165."

"And in this case, Pendleton, president, said, a parent may guard against an improvident child's wasting his estate, by limiting his interest in, or power over it. He may give an estate for life, and limit remainders over, upon it; but how far he may go in limiting estates for life, one after another, so as to effect a perpetuity, we leave to be decided when the experiment shall be made. At present, we can safely say, that whenever the conveyance gives an estate-tail in lands, the act vests in that tenant, an estate in fee simple. Ibidem, 185."

"See also Hunters v. Haynes. 1 Wash. Rep. 71. Where a devise to A. for life, with remainder to B. and the heirs of his body lawfully begotten forever; but in case B. should die without such issue, then to C. and his heirs for ever. In this case the court decided, that although B. died without issue in the life-time of A. yet his next heir should have the land in preference to C. the next remainder man. For, by the operation of the act of 1776, B's vested remainder in tail, was turned into an absolute fee simple, and descended to his heirs af ter the death of the tenant for life."

"We have now considered the several species of common as❝surances, whereby a title to lands and tenements may be trans"ferred and conveyed from one man to another. But before we "conclude this head, it may not be improper to take notice of a ❝ few general rules and maxims, which have been laid down by "courts of justice, for the construction and exposition of them all.” II Bl. Com. 379,

THERE has been no point of law upon which I have been more dissatisfied with the decisions of the English judges than with regard to the construction of last wills and testaments. The rule which they have laid down, and their reasoning upon it, or application of it, is so inconsistent and contradictory, that I have been at a loss to know what to make of it. According to one, the technical term is to govern; according to another, the intention is to govern; or the construction is to be a compound of both. The only judge, or elementary writer, that I find to speak common sense on the subject, is Hargrave, in his observations, concerning the rule in Shelly's case, in which I am happy to find my own way of thinking on the subject perfectly established. Harg. Tracts, 574.

His language is, "Surely the rules of interpreting words must be the same throughout. If a single word or a whole sentence, has, by habit, obtained an appropriate sense, the Jaw ought to presume in favour of that sense in preference to any other; unless from other passages in the same instrument, or from some peculiar circumstances attending the case, there is evidence sufficient to satisfy the mind of the judge, that the author of the instrument under consideration really intended to convey a different meaning. For the sake of preventing the assumption of a boundless and arbitrary discretion, it is fit that great respect should be shown to former decisions as to the weight of evidence requisite to repel the legal or technical sense of words, but some discretion must neessarily be left; because to insist that men shall only use zwords in one certain sense would be a monstrous tyranny; and there is such an infinite variety in the language and circumstances which may occur to distinguish one case from ano