court, to enable it to judge of its application to the present case. But we cannot accede to the broad proposition it is said to lay down. We think the law in this state as well as in England, is well settled, that merely cancelling, or destroying a deed, will not revest the title in the grantor. A contrary dsctrine would be in the face of the statute of frauds, which provides, that no interest in lands (except leases for a term not exceeding three years) shall be granted or assigned, unless by deed or writing. A jury may, however, presume a deed or writing for that purpase, to have been given, where the acts of the parties for a great length of time, have been inconsistent with the existence of the original conveyance; and if you shall be of opinion that such is the case, in the present instance, you may presume a reconveyance, so as to vest the title in Mary Philipse. But it is to be borne in mind, that this must have been done some time before her intermarriage with Roger Morris, or at all events, before the birth of any of their children, for upon that event the children acquired an interest under this deed, of which they could not be deprived, without their consent; and, from the evidence in the cause, this must have been only a short period. The precise time of their marriage does no appear; but Colonel Barclay swears that their children, four in number, were born before the year 1774.

The circumstances which have been relied upon to raise a presumption against the title under this marriage settlement deed, are:

1. That it purports to have been made tripartite, and only one part has been shown on the present trial. The answer given to this circumstance is certainly well founded, and entitled to great weight that it was unnecessary for the purpose of showing the title of the lessors of the plaintiff, to give in evidence more than one part. The others are not presumed to be in their possession.

2. Again, it is said, this deed has

lain dormant, from the year 1758 to the year 1787, when it was proved and recorded, which affords the presumption that it was then revived, for the purpose of overreaching the attainder of Roger Morris and his wife.

It is to be observed, however, that the proving and recording were not necessary for the purpose of passing the title, but only for safe keeping, and preserving the evidence of the due execution of the deed. The situation of this country in relation to England, for some considerable portion of this time, and the absence of Beverly Robinson, in England, may account, in some measure, for the delay. But the deed cannot be considered as having lain dormant during the whole of that period. For Col. Barclay testifies, that he was very intimate in the family, and repeatedly heard it spoken of, as early as the year 1770, as a prudent measure, on the part of Mrs. Morris' mother, to secure the property to the children; and Judge Benson saw it in the possession of Gov. Livingston in the year 1784.

3. The next circumstance relied upon, is the long possession of the occupants of the farm now in question, as well as of other lands in the patent, claiming to hold as tenants under Morris, previous to the revolution. A number of old witnesses have been examined, who have fully established that fact, and if the interest claimed to have been held by the tenants, was incompatible with, or greater than that which Morris had in the lands, it would be a strong circumstance against considering this marriage settlement at that time a subsisting deed. these witnesses only say generally, that the occupants held the land as tenants, under Morris. Whether there was a tenancy from year to year, or for a term of years, or during the life of Morris, does not appear. And this holding was not therefore inconsistent with the right which Morris had in the land, for under the marriage settlement he had a life estate therein. Nor was the giving the deeds, by Morris and his wife, to William and Joseph

But

Merrit, in the years 1765 and 1771, as shown in the evidence, at all at war with the right and interest they held under the marriage settlement. They conveyed these three farms in fee simple, and they had full and ample power so to do. For the marriage settlement deed secured to them the right of selling land to the amount of £3000, and the amount sold was only £1200. All these possessions, by the tenants, and sales made by Morris and his wife, are perfectly consistent with the interest they held in the land, and afford no presumption against the validity of the deed.

4. Again, it has been proved by a number of witnesses, living upon the lands falling within the present claim, that they never heard of this marriage settlement until within fifteen or sixteen years past.

This is at best but negative evidence and warrants no just conclusion against the validity of the deed, when not only its existence, but the assertion of a claim under it long before that time, is so fully proved by positive testimony. Col. Barclay heard it spoken of in the family as early as the year 1770; Judge Benson saw it in the possession of Gov. Livingston in the year 1784; it was proved and recorded in the office of secretary of state, in the year 1787; and in this same year, a claim under it was asserted by a petition to the legislature of the state, and the only answer received was, that if the facts set forth in the petition were true, the ordinary course of law was competent to the relief of the petitioners; and that it was unnecessary for the legislature to interpose. But this claim could not be set up in a court of justice during the life of Mrs. Morris, and she has died within the last two or three years.

Under these circumstances, it will be for you to say, whether the plaintiffs are justly chargeable with any delay, which ought to prejudice the claim now set up.

III. The only remaining inquiry is, as to the legal effect and operation of this marriage settlement deed, and

H

to what extent the interests of the parties to it were affected by the attainder of Roger Morris, and Mary his wife, in the year 1779.

This is purely a question of law, and by no means free from difficulty, and it would have been more satisfactory if the cause could have been thrown into the shape of a special verdict, or a case agreed upon, so as to have given the court, time and opportunity for a more full and deliberate examination of these questions. But as the counsel have chosen to adopt a different course, we are called upon to express an opinion according to our present impressions.

We shall not at this time enter much at large, into the examination of these questions, but only state generally, the opinion of the court, so as to enable the parties to avail themselves of their legal rights, to have this opinion reviewed, if they shall be dissatisfied with it.

The opinion of the court is, that this marriage settlement deed conveyed to Roger Morris and Mary his wife, upon their intermarriage, an estate for their lives, and the life of the survivor, and a contingent remain. der to their children, which vested in them respectively, as they were born.

It is contended, on the part of the defendant, that the contingent estate of the children could not vest until the natural death of their parents, who held the particular estate, and that, by their attainder, they became civilly dead, and the particular estate thereby ended, by reason whereof, there was no particular estate to support the contingent remainders, as the law requires. And that, although the life estate of Roger and Mary Morris, might have been transferred to the people of this state, yet the state could not stand seised to the uses declared in the deed. It is no doubt a well settled rule of law, that a contingent remainder to be valid, must vest, during the continuance of the particular estate, or at the instant of its termination, so that no estate can intervene between the two. But the vesting of

the contingent remainder may be at any time during the continuance of the particular estate, whenever the contingency happens upon which it is to vest. The enjoyment of it, however, is deferred, until the particular estate is ended. If the estate of the children did not vest, until the natural death of their parents, their civil death by the operation of the attainder, and the transfer of their life estate to the people of this state, might present some difficulty in supporting the contingent remainders, without the intervention of trustees to preserve them. But we think no difficulty arises on this ground, as the contingent estate of the children vested upon their birth. And all were born before the year 1779, when their parents were attainted, And after the contingent interest of the children became vested, it was unimportant, as it respected their rights, what became of the particular estate. It is unnecessary for us to express any decided opinion as to the ultimate limitations over, to Morris and wife, in case they should survive their children, as provided for in the marriage settlement. It may, however, be observed, that if they had not been attainted, and had survived their children, we see no insuperable objection to their taking the estate,

according to the provision in the deed. by way of shifting uses. But, by their attainder, both their life estate and their contingent remainder, over to them, would have become forfeited, and vested in the people of this state. So that the whole interest in the land in possession and remainder, would have gone to the state, if Morris and his wife had survived their children.

These are briefly the views of the court with respect to the construction of this marriage settlement deed. And it follows of course, that the forfeiture, by reason of the attainder of Roger Morris and his wife, attached only upon their life estate, and that upon the death of their parents, there was no legal impediment to the children's coming into the possession and enjoyment of their estate.

The plaintiff will therefore be entitled to recover, if the jury shall find that the lease, as well as the release were duly executed and delivered, at, or about the time of the date. And that the estate thereby conveyed, was not afterwards divested, by any deed or instrument in writing. These questions, being matters of fact, are submitted to the decision of the jury. The jury returned a verdict for the plaintiff.

I

her with the lash or handle of the whip when I saw her. I took no liquor that day but what was useful to me. I don't know how much is useful. don't think I took more than was useful to me, a glass of liquor and of beer. I was washing that day. There was a young woman below when I went down. The deceased told me she thought there were strangers below, and to fix my hair. went down on her telling me. The prisoner was in a violent passion; he kept calling her a drunken strap, off and on. I did not call in any neighbours while it was going on; I thought it was some. thing between man and wife that would soon cease. I was in the house all the time. The prisoner never came down until he was done beating her. My memory is very good. I repeat that I never told the prisoner that his wife was at her mother's that day. After the business was over that night, it was talked of in the house, but I did not say it.

Michael McGuire, sworn.-I was in the house when the prisoner came home last Friday. He went up stairs, and was not up long before I heard some raps that I thought were whip sounds. I went up to the head of the stairs; she was bloody. He said he would cut her throat. I was afraid to go into the room and went down, went out for a constable; saw one, but he would not come. I came back, went up stairs, and saw the prisoner having the deceased by the hair, with a whip in his right hand. The whip, a black leather one, was produced in court and identified by the witness. The prisoner held it by the butt, the lash out. I went again to the constable's house, corner of Plum and Third streets. When I came back, I saw the arms and head of the deceased out of the second story window, and James McColgey on the pavement, with his arms held out to catch her as she might fall. It was dark; I went up stairs, and saw the prisoner having the deceased sitting on the floor, his arms around her. She was all bloody about the head. Her hair was all covered with blood. The floor too. I came

down stairs; there was a great crowd about the stairs. No one went up. After a considerable while, Bryan Mount came in; he and I went up. We saw her hair tied to the bedpost; it was parted in half as near as I saw. She had long hair. She was on her knees or haunches on the floor. The hair kept her head from falling. The job was pretty well over at this time. She could not speak; she was groaning. I left Mount and came down stairs. There I met Mr. McCann; he was coming up stairs. Mount told him to stop below. McCann and I went for the constable; he was not at home. McGarvey was down stairs when I returned. They sent me for the doctor, and before I got back again the prisoner was taken by another constable. The beating began an hour before dark; it lasted altogether some hours. The constable lived about three squares or so off.

Cross examined.-The prisoner and deceased lived together in the one room. They cooked there; had a fire there, shovel and tongs; they eat there; I can't say they had knives and forks there. They had reasonable good furniture. I never saw them eating. I know the hair was tied to the bedpost. I saw it. The hair was wrapped or tied around the bedpost. Her head was hanging down. There are some stout men living near. I did not go after them. McGarvey came in an hour before dark. I do not recollect where my wife was then. He walked up stairs pretty smart. I did not hear him say any thing then. When I went up he was not beating her; the door was half way shut. I saw her; he shut the door half way. It was when I was going up that he threatened to cut her throat. He had no knife; he did not speak loud. I did not remain down stairs five minutes. I stood at the front door, considering what to do. I was about a quarter of an hour away for the constable. On returning I saw my wife. I did not stay up stairs w th Mount long enough to hear what the prisoner said. I did not hear my wife say she gave the deceased liquor.