
    *Wright v. Cohoon.
    May, 1841,
    Richmond.
    Will — Construction—Estate Tail† — Case at Bar. — Testator devises the lands to his son E. W. to him and Ms heirs forever: and if his son E. W. should die without lawful issue of a son, then to his son H. W. — Held, E. W. took by the will an estate tail: dissen tiente Ttjoküb, P.
    In a writ of right, brought in the circuit superior court of Nansemond, by the plaintiff in error against the defendant, to recover a parcel of 729 acres of land in that county, there was a special verdict stating the case thus: •
    Stephen Wright, who died earfy in 1816, by his will devised as follows — “I give to my son Edward Wright the plantation on which I now reside, and also the plantation I bought of James Wilson, to him and his heirs forever — I desire that if my son Edward Wright should die without lawful issue of a son, that the aforesaid lands and plantation to descend and go to my son Henry Wright.” The devisee Edward entered upon the lands devised to him; and by deed, dated the 19th August 1819, sold and conveyed the plantation on which the testator resided to Cohoon, the tenant in this action; and under that conveyance Cohoon took and had ever since held, and now claimed. Edward Wright died in January 1832, '‘without” (in the words of the verdict) “leaving or having had lawful issue of a son or of issue male or female.” The testator’s son Henry Wright was the de-mandant in the action; and the plantation on which the testator resided was the land demanded. The question referred to the court was, whether the demandant or the tenant was entitled?
    The circuit superior court held that the law was for the tenant, and gave judgment for him accordingly; to which this court allowed the demandant a supersedeas.
    *Robinson, for the plaintiff in error.
    The testator certainly did not mean what the words of the executory limitation literally import, that if Edward should die without leaving lawful issue of a son of Edward, that is, without a grandchild or remoter descendant sprung from a son of his own, in, such event the estate should devolve to the testator’s son Henry. Upon that construction, if Edward had died leaving a son, and that son had no issue living at Edward’s death, the son of Edward would have taken nothing. And the construction supposes, that the contingency upon which the testator meant to limit the estate to his son Henry, was the failure of great grandchildren of his own, male or female, sprung from a son of his son Edward; an intention so ■'unusual, and indeed so unnatural and absurd, that the court will not impute it to the testator, if by any reasonable construction it can be avoided. The construction is easy and obvious: the superfluous preposition “of” should be struck out of the limitation, and the will should be understood as if it read, ‘ ‘if Edward should die without lawful issue, a son;” meaning, without a son. And then, the effect will be, that Edward took an estate in fee, with an executory devise over to Henry in the event of Edward dying without a son; and as that event must of necessity be ascertained at Edward’s death or within nine months after, the execu-tory devise was good in its creation, and Henry is now entitled to the estate. In Melson v. Cooper, 4 Leigh 408, the testator devised land to his son W. and his heirs, and if he should die without a son, and not sell the land, then to his son G. ; and Carr and Cabell, J., thought, that a general absolute unlimited power to sell the land was plainly given to W. and that, therefore, he took an absolute fee; Tucker, P., doubted. In that case, but for the power to sell the land, the executory devise to G. limited upon the event of W. dying without a son, would have been held good. In Doe v. Erost, 3 Barn. & Aid. 546; 5 Eng. C. L. R. 373, the testator, having a son and daughter, *and the latter having many children, devised lands to his son W. P. and his heirs, and if W. E. should have no children, child or issue, the said estate was, on the decease of W. É. to become the property of the heir at law, subject to such legacies as W. E. might leave by will to the younger branches of his family : and it was held, that it was to be ascertained at the period of the son W, E.’s death, whether the estate devised to him should then vest in him in fee absolutely or pass over to some other person, and that W. P. took under the will an estate in fee, with a good executory devise to the person who, on the happening of the event contemplated by the will (namely, the dying of W. 1?. without issue living at his death) should be heir at law of the testator. In Murray v. Addenbrook, 4 Russ. 407 ; 3 Cond. Eng. Ch. Rep. 729., the testator having bequeathed an annuity to J. W. for life, gave the annuity, upon the death of the annuitant, to the eldest surviving son of the annuitant’s father Sir J. M. and failing issue male of Sir J. M. to his daughters living at the demise of such issue male, in equal proportions; at the death of J. M. the annuitant, his father Sir J. M. had no son living, but he had two daughters: and it was held, that the exec-utory bequest to the daughters of Sir J. M. was well limited, and that in the event that occurred, they were entitled. He cited also Birthright v. Hall, 3 Munf. 536, and Burfoot v. Burfoots, 2 Leigh 119.
    Leigh, for the defendant in error.
    If the words of the limitation are to be understood to import, that if tne testator’s son Edward should die without issue sprung from a son of Edward, the estate should devolve to the testator’s son Henry, then this would be a devise to Edward in fee, with an executory devise over to Henry limited upon a general failure of issue of any son of Edward; and the executory devise to Henry would be clearly void, as being limited on too remote a contingency.
    The jury so understood the words of the limitation ; *for the special verdict find that Edward died “without leaving or having had lawful issue of a son or of issue male or female.” But I agree, that that could hardly have been the meaning of the testator in framing this limitation. What, then, is the true import of the words “if my son Edward should die without lawful issue of a son?” I understand the meaning to be, without lawful issue of the son sex; equivalent to without issue male. Among the various functions of the preposition “of”' in composition, Dr. Johnson says, it is sometimes used as “noting something that has some particular quality,” and sometimes, as “noting species or kind;” but it must be confessed, that the examples he quotes do not exactly, though they do very nearly, indicate the same function of the preposition which I attribute to it in this will. I cannot remember any instance of this form of ex-
    pression, in the precise sense I ascribe to it here, in any book.  or written instrument; but it is not uncommon in the vernacular speech of Virginia, especially of the people of Eastern Virginia; and was more fre-quent formerly, within my memory, than it is now. It must be familiar to the judges of this court. Taking it, that by “issue of a son,” the testator meant issue ■of the son sex (which I have no doubt is the true explanation of the words) we have a plain case: he devised the estate to his son Edward in fee simple, and if he should die without issue of the son sex, without issue male, then over to Henry. And then, it cannot be doubted, that Edward took an estate tail by the will, with a contingent remainder to Henry. But, suppose the testator had said, as Mr. Robinson insists his words ought to be understood, — “if my son Edward should die without lawful issue, a son, the estate shall go to lmy son Henry”' — would the words ‘ ‘without lawful issue, a son, ’ ’ import the same meaning as the words “without a son?” I rather think the qualification of the word “issue” by the word “son,” would only serve to explain that by the word “issue” first used,s he meant male issue; and then Edward' took an estate tail. But grant all that Mr. Robinson asks; take the will as if it read thus — ‘ ‘I give my son Edward the 'plantation &c. to him and his heirs forever, and if he should die without a son, I give the same to my son Henry” — still, I insist, Edward would take an estate tail. Robinson v. Miller, 1 Roll. Abr. 837; 6 Cruise’s Dig. 303; Robinson v. Robinson, 1 Burr. 38; 3 Bro. P. C. 180; Tomlin’s Edi. ; Wild’s case, 6 Co. 16, b. ; Cook v. Cook, 2 Vern. 545; Merrymans v. Merryman, 5 Munf. 440. If Edward took an estate tail by the will, with a contingent remainder to Henry, the statute for abolishing entails converted Edward’s estate tail into a pure and absolute fee, and cut off Henry’s contingent remainder; and Edward’s conveyance to Cohoon passed the absolute fee.
   CABELL and BROOKE, J.,

without stating the reasons of their opinion, said the judgment was to be affirmed.

TUCKER, P.,

dissented. After stating the case, he said — It is contended by the counsel for the plaintiff in error, that Edward Wright’s conveyance to Cohoon gave him only an estate for Edward’s life, and that on the death of Edward, the title devolved to his brother Henry; and in this I think he is sustained by the best established legal principles.

The only difficulty that can exist in the case, arises from the word “of” in the connexion which it has in the clause — “if my son Edward dies without lawful issue of a son.” But this word I take to have been interpolated, *either by a slip of the pen or by reason of the testator’s want of skill in expressing himself. If we retain the word, the literal interpretation is, if he die without a- grandchild, or rather, without a child of a son. 'But, besides the improbability of the testator’s looking to the grandchildren of his son, that is, his own great grandchildren, it is not easy to imagine why he should have used this clumsy phraseology, instead of at once saying if he die without grandchildren. Moreover, if, as the words thus construed imply, he was looking to his own great grandchildren, it is not easy to discover a motive why the great grandchild, which might be of either sex conformably with the will, should be the child of a son rather than a daughter. It is contended, indeed, that the words are equivalent to — if he die without male issue; but this cannot be; for it is not by the will prescribed that the lawful issue of a son should be male issue. The words would be as well satisfied by female as by male children of the grandson of the testator. Again, even if we retain these words, Edward’s estate could not be an estate tail. For he cannot take, per formula doni, an estate either in tail male or tail general: not tail male, because the lawful issue of his son are not required to be male; nor tail’ general, because only a son of his could take; a daughter could not. If, then, we rigorously retain this particle “of,” the clause would still give •no estate tail to Edward. The most it could do, would be to give an estate tail general to his son, if he had one, and if he had none, then to give the estate over to Henry.

I think, however, we are warranted in striking out this word “of;” Doe v. Micklen, 6 East 486; Smart v. Clarke, 3 Russ. 365; 3 Cond. Eng. Ch. Rep. 437. And then the limitation is to Edward and his heirs, and if he die without a son, then over to Henry. Taking it thus, there is a clear executory devise limited upon a fee simple. The first words, standing alone, would give a fee, but they are clogged and limited by the subsequent * words, if he die without a son then over to Henry in fee. It is a clear limitation of a fee upon a fee, by way of executory devise, in the event of the first taker dying without a son. As where a testator devised to his mother for life, remainder to his brother in fee, but if his brother’s wife then enceint had a son, then to him in fee: a son was born: and this held a good ex-ecutory devise to the son; Dyer 127, a. in margin. So, where lands were devised to T. and his heirs forever, but if he died without issue, living W. then to W. and his heirs; here, the words without issue, living W. were considered as constituting a good contingency, and the limitation over was held good. Pells v. Brown, Cro. Jac. 590. So, where lands were devised to E. H. forever, that is, if he have a son or sons who shall attain 21, but if he die without son or sons to inherit, then the testator’s son W. H. to inherit: held, that E. H. took an estate in fee, subject to an executory devise over in the event of his dying without a son who should attain 21. Heath v. Heath, 1 Bro. C. C. 147. So, devise to S. S. and her heirs, but if she should die leaving no child or children or lawful issue of her body living at the time of her death, then to T. B. and his heirs: held, that S. S. had a fee subject to an ex-ecutory devise over to T. B. upon the contingency of her dying without child &c. Doe v. Wetton, 2 Bos. & Pull. 324; Right v. Day, 16 East 67. So, a devise to A. and his heirs forever, but if he died leaving no son, then to such son of his executor as he the executor should nominate, and if no such son, then to B. was held a good ex-ecutory devise to B. Fairfax v. Heron, Prec. in Chan. 67; Butl. Fearne 431; 6 Cruise’s Dig. 466 ; 4 Bac. Abr. Eegacies and Devises; I. p. 296. Erom these cases, it seems clear, that if the words of this will are equivalent to — if he die without a son, the devise over to Henry was a good exec-utory devise.

The cases cited for the defendant in error, seem to me entirely inapplicable. Thus, in Robinson v. Miller, *the devise was to the wife for life, and after to the testator’s son, without words of inheritance, and if his son died without issue, having no son, then over: adjudged an estate tail; and properly, for there being no words of inheritance in the devise to the son, his children could never get the estate, unless it was construed to be an estate tail, though it was clear the testator postponed the devise over with a direct reference to benefiting his son’s issue. So of Wild’s case: it was held, that a devise to A. and his children, he having then no children, created an estate tail, because if A. had but a life estate, the children could never take any thing, whereas it was clearly the intention of the testator that they should be benefited by the devise. See 6 Cruise’s Dig. 299. The principle stated in 2 Vern. 545, is but a reiteration of that in Wild’s case, and Merrymans v. Merryman, 5 Munf. 440, is of the same character. The celebrated case of Robinson v. Robinson, 1 Burr. 38, was a devise for life and no longer to E. H. ; then to such son as he should have lawfully to be begotten (without words of inheritance), and for default of such issue, then over. E. H. took an estate tail, since the testator’s manifest intent was to benefit the whole line of his issue, for the estate was not to go over until they failed, and if L. H. took but a life estate, his descendants could not receive the benefit intended for them. In these cases it is observable, that the first taker having no inheritance unless an estate tail was created, the son, children, or other descendants, could never come info any enjoyment of the estate. The estate tail, therefore, was implied to effectuate the intent of the testator in favor of the son, children or issue. But, in the case at bar, Edward Wright took a fee by the first words, and his son of course would take the estate unless he aliened it. In this it is distinguished from the cases cited.

Judgment affirmed. 
      
       The principal case is cited in Tinsley v. Jones, 18 Gratt. 299. See foot-note to Callis v. Kemp, 11 Gratt. 78.
     