Akers' Executors v. Akers. or the remainder to their children, in this case although they have not any child at the time, yet every child which they shall have after, may take by way of remainder, according to the rule of the law; for his intent appears that their children should not take immediately, but after the decease of Rowland and his wife." The second resolution only applies when the gift is to a man and his children. If such children were then in being they would take jointly with their father. But if they were not in being, the law, to give the devise effect, construes children like heirs, a word of limitation. But it is carefully, in the other two resolutions, distinguished from the cases where the gift was to the children after the decease of the parent, as in this case. In Wild's case the gift to children was after their parents' decease. It was held that Wild and his wife had only an estate for life, and that their children took only an estate for life, and not an estate tail. And by the third resolution, which is upon a proposed case just like the present, where the children were born after the will, it went to every child born afterwards by way of remainder, and not to the heir-at-law. All the other cases relied on by counsel in support of this position are upon devises like that supposed in the first resolution in Wild's case—that is, devises to A and his children—and not like the devise in this case, or the devise to Wild and his wife for life, and after their decease to their children. The resolutions in Wild's case would make this gift to each daughter for her life, and at her death to her children for life only; in this state, by statute, the children take the fee. This would apply to both real and personal property. It is further insisted that the word heirs, in the gift over to children or heirs, being a word of inheritance, must create an estate in fee in the lands; and in the personal estate coupled and mixed up with it in the same gift, must make the gift in like manner absolute. I will assume the position taken by Sir John Leach in Malcolm v. Taylor, 2 Russ. & Myl. 416, in a judgment afterVOL. VIII. с Akers' Executors v. Akers. wards affirmed by Lord Brougham on a re-hearing, that “it is to be supposed where real and personal estate are given together, that the testatrix had the same intention with respect to the funded property and the real estate. In real estate, the words used in this will, (if the word children is expunged or considered as swallowed up in the word heirs in the gift over,) would not give a fee in the lands. It would have had that effect under the rule in Shelley's case; but since the act of 1820, incorporated in the present act of descent as section ten, the rule in Shelley's case has been abolished in this state, so far as devises are concerned. In 1843, a gift to a person for life, and at her death to her heirs, would give a life estate only to the devisee, and at her death it would go to her children in fee; and this in the case of Den d Hopper v. Demarest, 1 Zab. 525, was determined to be a vested estate in the children. The words of the fourth clause, if they had been used for the personal estate only, would have given the daughter only an estate for life, and the limitation over would have taken effect, not being too remote for the limitation of personal estate. If, because real estate is included in the same gift, this must have the same construction as to the personal as to the real estate, the gift is for life, with limitation over at the death of the life tenant to her children-a limitation allowed by the rules of law. This is the view taken in 2 Jarman on Wills 506, of the effect of the English statute of 1837, which declares that in wills of persons dying after that, the words "dying without issue" shall be taken to mean dying without issue living at the death of the first taker. These words, in a devise over, had been held before to create an estate tail in lands by implication. And under the rule that words which as to lands would create an estate tail, when applied to personal estate would make the gift absolute, because it could not be entailed-these words, in a limitation over of personal estate, made the first bequest absolute. The learned author remarks that "the statute will, when applied to personalty, operate to restrain such words from passing the absolute Akers' Executors v. Akers. interest, and also to bring within the compass of the rule against perpetuities, the ulterior bequest depending on such contingency." The act of 1820 had the same effect upon devises of real estate here that the English statute of 1837 did there, and should have the same reflected effect upon gifts of personal estate in changing the application of the abrogated rules to them. The intention of the testator as expressed is, above all things, the guide of the courts in the construction of the will, and the courts will not be backward in taking advantage of anything that abrogates an iron rule of law preventing the giving effect to such intention. But there is no reason for holding that in this case the word "children" is to be taken as synonymous with heirs, or that it is swallowed up by it. A more reasonable construction would be to give effect by applying the word "children" to the personal property, and the word "heirs" to the lands, according to the rule, reddendo singula singulis. The word "heirs," when applied to personal property alone, is often held to mean the legatees in the will, and when applied to both real and personal estate, to mean both legatees and devisees, in accordance with this rule; and if it had been the only word here, this meaning could be given to it. But where both are used, each should be given its proper effect, by applying it to the estate to which its settled meaning refers. Either view brings to the same conclusion. The daughters are entitled to a life estate only in the personalty. It must be invested by the executors, and the interest of each daughter's share paid to her half yearly in person. Green v. Richards. GREEN and wife vs. RICHARDS. 1. A bill by a husband and wife, praying performance of one or the other of two agreements-the one a parol agreement made with the husband, and the other a written agreement made with the wife—both for the conveyance by the defendant of the same premises upon the same terms, is not multifarious. 2. Such bill might have been demurrable for a misjoinder. But here the error is not such that the court will refuse relief on this technical objection, after the defendant has allowed the cause to proceed to hearing. 3. Taking possession of the premises, under a parol agreement for their conveyance, is such part performance as will take the case out of the statute of frauds, and support the suit on the agreement; part payment will not. 4. A memorandum endorsed on a receipt, &c., as follows: "This is to show that I agree to sell to Mrs. G. house and lot No. 71 Ferry street, for the sum of $2500, and that when there is $500 paid, and the back rent, I will give her the deed and take a mortgage for $2000. [Signed.] T. E. R.,” is a contract certain and definite, except as to whether the mortgage should draw interest or not. But there being no agreement for time, and the purchaser not being entitled to any credit, a court of equity will presume it to have been the intention of the parties that the mortgage should be made payable on demand, and enforce the contract. Argued on final hearing upon pleadings and proofs. Mr. F. Stevens, for complainants. Mr. C. F. Hill, for defendant. THE CHANCELLOR. This suit is to compel the defendant to convey to the complainants, or one of them, a house and lot in the city of Newark, as specific performance of agreements entered into by him with each of them. The bill sets forth a parol agreement made by the defendant with Mr. Green, also certain acts in part performance; and also an agreement in writing afterwards entered into by him with Mrs. Green for a conveyance of the same premises on the same terms. It Green v. Richards. prays performance of one or the other. The bill is not multifarious. The uniting these two contracts in one bill may be a misjoinder, and the bill, if it had been demurred to, might have been held bad. But in this case the error is not such that the court will, after the defendant has allowed the cause to proceed to hearing, refuse relief on this technical objection. By the statute of frauds no suit can be brought on a parol agreement. But courts of equity have long held that it is a fraud to take advantage of the statute after the other party has in part performed the agreement so that he cannot be placed in the same situation. And under this doctrine it is settled that part payment is not, but that taking possession of the premises under the agreement is, such part performance as will take it out of the statute. The complainant says his possession was taken under this agreement, and testifies to this allegation in his bill. The defendant in his responsive answer, under oath, says that it was not under this agreement, but under an agreement to let the premises to Green at $20 per month, for one year, and that he would at the end of the year convey, if Green did for that time continue sober. He denies in his answer that he ever made the agreement stated in the complainant's bill. There is no evidence, except that of the complainant, to sustain his allegation. The answer of the defendant is corroborated by his own testimony, and sustained by the testimony of two witnesses, one of whom heard Green state that he was to have the house if he kept sober, but had broken the restrictions by getting drunk at Jersey City. He also told this witness and another that he paid $20 a month rent. Neither the parol contract stated in the bill, nor an That contract, being denied in the such manner as to avoid the effect It is not so proved, and no relief entry under it, is proved. answer, must be shown in of the statute of frauds. can be had upon it. The written contract with Mrs. Green is dated May 9th, 1868, one year after the verbal contract with Mr. Green. It was endorsed on a receipt in these words: "Received from |