ment of justice by substituting a superior jurisdiction in the place of an inferior one, cannot, under any sound rule of interpretation. be construed to repeal any of the provisions of the British Statute, relating to the suggestion of breaches. Let it be remembered, that the statute provides, that after breaches have been been assigned or suggested, the judgment * entered shall remain as a 9 security for any further breaches of covenant contained in the said deed, instrument or writing, and that the plaintiff may have a scire facias on the said judgment against the defendant, his heirs, executors and administrators, suggesting breaches of the covenants, and may summon them to shew cause why execution should not be awarded on the said judgment, upon which there shall be the like proceedings as were originally had in the action on the bond. Unless a suggestion is made on the roll, how can it be known that the breaches assigned in the scire facias are the same or different from those on which the judgment was rendered? The object of the statute, in requiring the suggestions, was to give certainty to the proceedings under it, but the effect ascribed to the Act of 1794, ch. 46, by the counsel for the appellee, would destroy this legal certainty, when no possible reason can be suggested for such an intention on the part of the Legislature.

The final judgment of the Court below being erroneous on this ground, it becomes unnecessary to express an opinion on the other points raised by the appellant's counsel.

In relation to the bills of exceptions taken by the defendant's counsel, the Court are of opinion, that the County Court erred in each opinion expressed on those exceptions.

The Court hold, that the admission of an executor or administrator of a co-obligor, cannot be used in evidence against the surviving obligor in a suit brought against him by the obligee, and of course, that a judgment confessed by such executor or administrator, (being nothing more than an admission,) is equally inadmissible. If the admissions of an obligor could be used as evidence against a coobligor, (and whether they could, or not, the Court do not mean to decide,) yet it does not follow that the confessions of an executor or administrator are equally admissible. The privity between the executor or administrator, and co-obligor, is not the same as that between the co-obligors, and it cannot be supposed that the executor or administrator has the same information on the subject as his testator. or intestate had. No case has been cited in support of the admissibility of such testimony, and various considerations of policy and justice are opposed to it. The Court below therefore erred in permitting the judgment confessed by William Harris, the ac10 count of the plaintiff, and the letter of William Harris, to go before the jury.

*

It necessarily follows from this view of the case, that the opinion of the County Court, as expressed in the second bill of exceptions, is

erroneous, because in their direction to the jury they declare, that the admissions flowing from the letter of William Harris to his counsel, and the judgment confessed by him to Edward Harris, ought to have no weight with them, if they believe from the testimony laid before them that the letter was written, and the judgment confessed, with a view to furnish Edward Harris with evidence to be used to the prejudice of the defendant in the trial of this cause; thus giving to the plaintiff the full benefit of those documents as testimony, except in the particular case stated by the Court, when in point of law such judgment and letter were not legal and admissible in any way to charge the defendant.

And this view is equally fatal to the opinion delivered in the third bill of exceptions; because the Court therein recognize the settlement between the plaintiff and William Harris, and the judgment against William Harris, as evidence in the cause, by declaring its legal effect in a specified case, when in point of law they ought to have rejected the prayer, as not being founded on testimony which was legal and admissible.

The Court therefore reverse the judgment of the County Court, this Court dissenting from the opinions expressed in all the bills of exceptions. Judgment reversed, and procedendo awarded.

COURT OF APPEALS, (E. S.) JUNE TERM, 1820.

PRATT'S Lessee vs. FLAMER et al.

A devise to F. and her heirs lawfully begotten, and in case she dies without heirs, remainder over, gives F. only an estate tail. (a)

A devise to F. for life, remainder over to her issue, and in case the issue dies without heirs, remainder over to B. the issue takes only an estate for life the words without heirs, preceding the last remainder, meaning heirs of the body only, and not being sufficient to enlarge the interest of the first remainder-man into a fee simple.

A devise to an unborn illegitimate child, where the mother is described, is valid.

Devises to two illegitimate childron, and in case either shall die without heirs, then her part shall go to the survivor,-the word heirs means issue, and not heirs generally.

11

APPEAL from Talbot County Court. Ejectment for three tracts of land, viz. Piccadilly, Vickars' Venture, and Dunn's Range. The questions submitted to the Court by the statement of facts, arose under the following devises in the will of William Vickars, dated the 26th of August, 1774, viz. "I give, devise and bequeath, unto my loving wife Sarah Vickars, my home plantation

(a) Approved in Clarke vs. Smith, 49 Md. 116. Cf. Rev. Code, Art. 49, sec. 9.

called Piccadilly, and part of Dunn's Range, during her life." "I give and bequeath unto my loving wife Sarah Vickars, five negroes, viz. &c. during her life, and after her decease, the aforesaid lands and negroes to go to my daughter Elizabeth Vickars." "I give, devise and bequeath, unto my daughter Elizabeth Vickars, my plantation called Vickars' Venture, to her and her heirs, (lawfully begotten) forever; and in case she dies without heirs, to return to my loving wife Sarah Vickars." "I give and bequeath to my daughter Elizabeth Vickars, four negroes, viz. &c. to her and her heirs forever; and in case she dies without heirs, to return to my loving wife Sarah Vickars." "In case there should be any issue in nine months from this date, I give and bequeath my home plantation aforesaid called Piccadilly, and part of Dunn's Range, after the decease of my loving wife Sarah Vickars, to the said issue." "In case my children die without heirs, I give and bequeath my aforesaid lands and negroes unto my brother Jacob Garron, (after the decease of my loving wife Sarah Vickars,) to him and his heirs forever." It was admitted that Sarah, the wife of the testator, survived him, and died in 1801, and that she had no issue except her daughter Elizabeth, who, was the only child of the testator; that Elizabeth also survived her father intermarried with Charles Price, and died in 1789, in the life-time of her mother. That Jacob Garron also survived the testator, and on the 2d of April, 1783, duly made and executed his will, whereby he devised to his daughter Henrietta Palmer, daughter of Rebecca Palmer, the one-half of his estate, of whatever it might consist, after his just debts were paid; and the other half to the child Rebecca Palmer was then big with, if it should live, and if it should die without heir, then he devised it unto the said Henrietta Palmer, her and her heirs forever; if either of the children should die without heir, then he devised their part to the other. It was also admitted that Henrietta Palmer survived the last mentioned testator, and died in 1801, before she attained the age of 21 years, and without issue. That at the time when Garron made his will, Rebecca Palmer was

encient of and with a female child, who was born soon after

12 the decease of Garron, and named Ann, and that she was born long before the death of Henrietta, and intermarried with Philemon Pratt, which said Philemon, together with the said Ann, made the demise set forth in the declaration, and that the said Ann is the surviving lessor of the plaintiff. It was also admitted that the said Henrietta and Ann were illegitimate children, the daughters of Rebecca Palmer by Garron, and that Garron was the half-brother of William Vickars, both born of the same mother, but of different fathers. The County Court gave judgment on the case stated for the defendants, and the plaintiff appealed to this Court.

The cause was argued in this Court before CHASE, C. J., BUCHANAN, JOHNSON, MARTIN, and DORSEY, JJ.

Kerr, for the appellant, contended that Elizabeth Vickars took an estate tail. Co. Litt.; 3 Salk. 336; 4 Bac. Ab. 256; 7 Co. 41; Moore.— A devise to an unborn infant is valid, and will take effect when the child is born. 4 Bac. Ab. 246; Pow. on Dev. 328. Elizabeth Vickars and the issue, if any, took cross-remainders in tail. Where a devisee takes an express estate tail, it is not to be enlarged by implication. 4 Bac. Ab. 290. And as the estate tail could not be enlarged by implication, they therefore took cross-remainders in tail. The word heirs in the will must mean heirs of his body. 4 Bac. Ab. 259; Wille's Rep. 165, 369, 370. Elizabeth Vickars and the issue, took cross-remainders in tail by implication. 2 Blk. Com. 381; 4 Bac. Ab. 290; 2 East, 36; 1 Saund. 105, (note 6.) On the death of W. Vickars, Garron had an estate in remainder in fee, after the estates tail. If Garron had an interest it was devisable by him. A devise to an illegitimate child unborn, is valid if the mother be described. Co. Litt. 3 b; 1 P. Wms.; 2 Roll. Ab. 43, 44; Moore, 430. By the word heirs, Garron meant heirs of the body; for being illegitimate they could have no heirs except issue of the body, and therefore the remainder over is valid. 3 Buls. 193, 195; 3 T. R. 135, 136; Cowp. 410. * Hammond for the appellees. The intention of a testator 13 must prevail, if consistent with the rules of law. It was the intention of W. Vickars to give the personal estate in the same manner as the real, but the remainder over is void, as too remote. The inheritance would have gone to Elizabeth as the heir-at-law. Crossremainders are only where the estate is given tail. 2 Blk. Com. 381. There can be no cross-remainders except in estates tail. More than two cannot take cross-remainders, except the intention is plain and manifest. The land called Piccadilly was unquestionably given to Elizabeth in fee, to be defeated on the birth of the issue; but as there was no issue born, the fee remained. She also took a fee in Vickars' Venture. 2 Ld. Raym. 1145; Co. Litt. 20 b; 2 Ld. Raym. 1145; 1 H. & McH. 336. If an estate in fee was vested in Elizabeth Vickars, can the limitation over, change the nature of the estate? In every instance where lands are devised in fee, and if the devisee dies without heirs, the devisor means by the word heirs, issue. Such is the intention, whether the remainder over be to a connexion of the first devisee, or to a stranger. A devise over, after a fee, is void. Corp. 234; 1 Ves. 89. Originally a devise to a person in ventre was void. Pow. on Dev. 320. The authorities to prove that an unborn illegitimate child cannot take as devisee, are Cro. Eliz. 509; 1 P. Wms. 530; Pow. on Der. 339; Fern. 175, 176; 2 Blk. 170; 2 Ld. Raym. 1152; Pow. on Dev. 426; 4 Com. Dig. 216.

Bullitt, in reply. It is certain that W. Vickars designed that the property, on certain events occurring, should go to Garron. He intended to entail it on Elizabeth-remainder to his wife for life-remainder to Garron. A fee tail only passed. The words lawfully begotten forever, must pass a fee tail. The word heir, in that part of

the will, must mean issue, for the testator never intended a total failure of heirs. He knew the difference between a fee tail and a fee simple. To Garron a clear fee simple is given. 3 Com. Dig. 26; Co. Litt. 20 b. When an intermediate estate is intended to take effect by the birth of a child, if the child is not born, the remainder takes an immediate effect. 1 Wille's Rep. 105; Cowp. 40; Fern. 163, 164. If a child had been born, it with Elizabeth took cross-remainders in fee-tail. If Elizabeth took an estate in fee, then the limitation over may be supported as an executory devise-as if they died without heirs, living the mother. They died during the life of the mother. What passed under Garron's will? Henrietta Palmer took one-half of the estate. The other half he gives to the child that Rebecca Palmer was then big with. It is contended that the devise is void by the policy of the law. The devise is valid; for it is given, and the description is only the child that Rebecca Palmer was then preg nant with-not as his child. Limitation to an unborn bastard is good, if described with certainty. Roll. Ab. 43; Noy. 35; * 2 Ld. Raym. 1152. Cur. adv. vult.

16

JOHNSON, J. at this term, delivered the opinion of the Court. This was an action of ejectment brought to recover three tracts of land, to wit, Piccadilly, Vickars' Venture, and Dunn's Range; the cause was tried on a case stated, and judgment given in favor of the defendant.

The case stated in substance is, that William Vickars being seized in fee of two tracts, Piccadilly and Vickars' Venture, on the 27th of August, 1774, in due form of law made his will and testament, in which are the following clauses :

1st. "I give and bequeath to my loving wife Sarah Vickars, my home plantation called Piccadilly, during her life."

2d. And by the next clause he gave her five negroes by name, also during life, and after her death the negroes and land to go "to my daughter Elizabeth Vickars."

3d. "Item. I give and bequeath unto my daughter Elizabeth Vickars, my plantation called Vickars' Venture, to her and her heirs (lawfully begotten,) forever; and in case she dies without heirs, to return to my wife Sarah Vickars."

4th. And by the next clause he gave to his said daughter four negroes by name, to her and her heirs forever, "in case she dies without heirs to return to my wife Sarah."

5th. "Item. In case there should be any issue in nine months from this date, I give and bequeath my home plantation aforesaid called Piccadilly," (and the five negroes first given to his wife,)" after the decease of my loving wife Sarah Vickars, to the said issue.

6th. "Item. In case my children die without heirs, I give and bequeath my aforesaid lands and negroes, unto my brother Jacob Gar