| Sup. Ct. N.C. | Jul 5, 1801
Evidence may be given to prove that the deed last mentioned was really delivered on the 8th, and before the deed to the daughter and her son. The date is not of the essence of the deed, and it is not sound, as argued, that Cutlar, being a party to the deed and now a plaintiff, is therefore estopped to say the contrary of that which appeared on his own deed. Vide 2 Rep., 4; Dy., 307; Comber, 83.
As to the other points, he said that heirs of the body, when spoken of chattels, were in some cases descriptive of the person to take, and were words of purchase, not of limitation; but the word heirs simply was always a word of limitation, and operated to give the whole property to the survivor, and is here tantamount to executors. There is no difference *158 between saying remainder in fee to the heirs of the survivor, and remainder to the heirs of the survivor. The absolute property (155) was in suspense till the death of one, but upon that death the absolute property immediately vested in the survivor, and was no longer contingent, and consequently his administrator ought to recover.
NOTE. — As to the question of delivery, see Nichols v. Palmer,