Rutty v. Tyler 3 Day 470

June, 1809.

A grant of land to A. to continue for a yard to build vessels in? by A* and his heirs, so long as they shall see fit, but if they cease to use it for this purpose, not to be sold by them, but for ever to remain to B. and his heirs, gives Ji no more than an estate for life, and the remainder to B, ⅛ good,

Jonah Rutty and Asa Rutty against Simon Tyler, 2d, and Lyman Shaler.

MOTION for a new trial.

This was an action of trespass, in which both partiés claimed title under the same deed from Josep-h Arnold, dated 15th of April, 1735; by which the grantor, for the consideration of love and good will, conveyed to his daughter Anna Tyler, and her husband, Nathaniel Tyler, a piece of land, containing an acre and three roods, and then proceeded thus: “ I, the said Joseph Arnold, conditionally give, grant, and convey unto the said Nathaniel Tyler near half an acre by the great river side, where said Tyler built the brig the summer last past; said yard being set out with stakes and stones at each corner; which said small piece of land shall continue for a yard to build vessels in, by said Nathaniel Tyler, and his heirs, so long as he, or any of them, shall see good; but if said Tyler, or his heirs, shall cease building thereon, then said yard shall neither by him, nor any of them, be sold, but shall be and for ever remain to my son Simon Arhold, and his heirs and assigns: This last piece, with the conditions, to have and to hold to Anna and Nathaniel Tyler, their heirs and assigns for ever, as part of their portion.” The plaintiffs claimed the last-mentioned piece of land under Simon Arnold; the defendants, under Nathaniel Tyler. They claimed, that the deed from Joseph Arnold vested an immediate estate in fee-simple, or fee-tail, in Nathaniel Tyler; and that, in either case, the contingencies were too remote and uncertain, and the condition was void. But the court directed the jury, that this was a limitation in law; and that the defendants must prove, that the conditions had been complied

*471SUPREME COURT OF ERRORS, •with, and that they had not, by ceasing to build vessels, J forfeited their estate. The defendants, after a verdict for the plaintiffs, moved for a new trial, for this supposed misdirection of the court. Hosmer and Clark, in support of the motion, contended, that a fee vested in Nathaniel Tyler by the grant; and, consequently, that Simon. Arnold could take nothing. Cro. Eliz. 360. 379. Pont), on Dev. 239. Co. Lift. 18. Edward Seymor’s case, 10 Co. 95. Shelly’s case, 1 Co. 88. Daggett, contra, argued, that a life estate only was given to Nathaniel Tyler; that the word “ heirs” does not always convey a fee, but is sometimes used as de-scrifitio fiersonee. By the Court. The deed of Jasefih Arnold conveyed nothing in the lands now in dispute to Nathaniel Tyler, but an estate for life; and this, on condition that the grantee, and his heirs, should use the land for a ship-yard. The word “ heirs,” as used in that part of the deed, is only-descriptive of the person for whose use the estate is conveyed, and cannot enlarge the estate. The remainder,, therefore, in fee, to Simon Arnold, was well created; and the rights of the plaintiffs, who claim under Simon, were correctly stated in the charge to the jury.