On June 17, 3 862, Jonathan and Mary, D. Smith conveyed, by deed, a certain tract of land in Hinds county to Mary A. Smith, wife of Lemuel H. Smith, “and the heirs of her body begotten by the said Lemuel H. Smith.” Afterwards, on the 2nd day of February, 1875, the same parties made a second deed to said Mary A. Smith to the same land and some additional land; this deed was to “Mary A. Smith, wife of Lemuel H. Smith, during her life, and to her heirs begotten by said Lemuel Smith, forever.”

Mary A. Smith, after the last deed was executed, gave a deed of trust on the said land to T. E. Richardson & Co., to secure a debt she owed them. The deed of trust was foreclosed, and they purchased the lauds, aud afterwards sold it iu fee simple to E. Richardson. Appellants, the surviving children of Mary A. Smith and Lemuel IT. Smith, they being dead, filed the bill in this case against E. Richardson to cancel his deed and the trustee’s deed to T. Richardson & Co., as clouds on their title, claiming that the deeds from Jonathan and Mary D. Smith to Mary A. Smith only conveyed a life-estate to Mary A. Smith, and that they took the remainder. The defendant demurred to the bill, and the demurrer was sustained, and tbe bill dismissed. From that decree complainants appeal.

Appealed from Chancery Court, Hinds county, First District, E. Gr. Peyton, Chancellor.

The deeds are not within the rule in Shelley’s case. I will simply state that rule: “That when the ancestor by any gift or conveyance taketh an estate of freehold., and in the same gift or conveyance, an estate is limited either mediately or immediately to hi's heirs in fee or in tail, the words ‘the heirs’ are words of limitation of the estate, and not words of purchase.” 4 Kent, 215.

Mr. Preston says where the limitation to “his heirs” or “the heirs of his body” are designated as a class of persons to take in succession from generation to generation, the limitation to the heirs entitles the ancestor to the whole estate. 1 Preston on Estates, 263-419.

A case to fall within the rule must contain the words embraced in the rule, thus: it must have been the words “heirs” or “heirs of the body.” If these precise words are employed, then the first taker has the whole estate in fee. But the point is this, that these words are not used in the deed. But other, and in legal observation, very different words, viz: “The heirs of the body, begotten by Lemuel Smith.”

The rule in Shelley’s case was based on the idea that the words, “heirs” or “heirs of the body,” generally indicated simply the legal course of descent, and hence were construed as words of inheritance and not words as purchase, and therefore the estate went to the first taker, with his heirs or heirs of his body generally to take by descent from him, as his heirs, and not as the beginning of a new stock.

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