Opinion
(Fall Riding, 1801.)
1. The date of a deed is not of its essence, and a party thereto is not estopped to prove that it was delivered at another time than that of the date.
2. The words "heirs of the body," when used in a disposition of chattels, are in some cases descriptive of the person to take, and are words of purchase, not of limitation; but the word "heirs" simply is always a word of limitation, and vests the absolute property.
TROVER for negroes which Spillar in 1794 gave by deed to his daughter for life, and by another deed, dated 8 February, 1794, to his daughter and her son, J. S. Cutlar, for their lives, and the life of the longest liver or survivor, remainder to the heirs of the survivor. Cutlar, who had married the daughter, conveyed by deed, dated 10 February, 1794, to James Spillar, and covenanted never to claim any property which should come to his wife by purchase or descent.
Evidence may be given to prove that the deed last mentioned was really delivered on the 8th, and before the deed to the daughter and her son. The date is not of the essence of the deed, and it is not sound, as argued, that Cutlar, being a party to the deed and now a plaintiff, is therefore estopped to say the contrary of that which appeared on his own deed. Vide 2 Rep., 4; Dy., 307; Comber, 83.
As to the other points, he said that heirs of the body, when spoken of chattels, were in some cases descriptive of the person to take, and were words of purchase, not of limitation; but the word heirs simply was always a word of limitation, and operated to give the whole property to the survivor, and is here tantamount to executors. There is no difference between saying remainder in fee to the heirs of the survivor, and remainder to the heirs of the survivor. The absolute property (155) was in suspense till the death of one, but upon that death the absolute property immediately vested in the survivor, and was no longer contingent, and consequently his administrator ought to recover.
NOTE. — As to the question of delivery, see Nichols v. Palmer, 4 N.C. 319, 436. With respect to the word "heirs" being always one of limitation when applied to a disposition of personalty, see. Ward v. Stowe, 17 N.C. 509; Allen v. Poss, 20 N.C. 77. A gift of a slave by deed for life prior to the act of 1823 (1 Rev. Stat., ch. 37, sec. 22) passed the absolute interest in the slave. Note to Tims v. Potter, 1 N.C. 12.