The opinion of the court was delivered by

Littleton, in the text, says, that the word heirs only can make an estate of inheritance, in all feoffments and grants; Lord Coke, in his commentary on this, page 9, says, “But out of this rule of our author, the law doth make divers exceptions, {ex-ceptio probat regulam;) for sometimes by a feoffment, a fee simple shall pass, without these words, (his heirs.) For example, first, if the father enfeoffe the sonne, to have, and to hold, to him and his heirs, and the sonne enfeoffeth the father, as fully as the father enfeoffeth him, by this the father has a fee simple, quia verba relata hoc maxima operanturper referentiam ut in esse videntur,” &c. Shep. T. 101, and Preston on Estates 2, are to the same point. As if one recite, that B hath enfeoffed him of white-acre, to have and to hold, to him and his heirs, and he saith further, that as fully as B hath given while-acre to him, and his heirs, he doth grant the same to C. This is held a fee simple, on the same principle. And if one grant two acres to A and B, to have, and to hold, the one to A and his heirs, and the other to B in forma predicta; by this (grant), B hath a fee simple in this other case, for an estate in fee simple, fee tail, or for life, may be made by such words of reference. It is said, that this case is embraced by the principles above stated. The facts are these: — by an article of agreement, David Lytle assigns to his brother Abraham Lytle, all his part of the estate left to him by Yús father’s last will and testament, both personal and real property, and further David relinquishes his claim for ever. It is plain that, by agreement, nothing but a life estate passes, unless it is enlarged to a fee simple by the reference to the will. The words of the will are, so far as they are material to the question, “ and the remainder of my real and personal estate, I will, be equally divided between my children.” The will leaves the parties just where they were. It shows it was the intention of the parties, to convey a fee, a matter which is as plain on the face of the agreement as it can be made by reference to the will. If the will had contained a clause giving the property to him and his heirs, it would have come within the reasons of the, cases which have been cited. A fee simple is conveyed, because by the reference, the other instrument is incorporated and made part of the convey*261anee, and if that should contain the essential word (heirs), it is adjudged good, as a conveyance of the fee. The distinction between a will and a deed, is firmly settled] and we must not yield to exceptions, unless they plainly appear to be within the cases already ruled.

This point does not seem to have occurred to the counsel on the argument in the district court. It was argued there on other grounds, which have been properly abandoned.

Judgment affirmed.