
    Lewis A. Beckam, et al., vs. W. D. De Saussure.
    Testator, having three sons and three daughters, devised his lands to his youngest son, F. W., “and his heirs forever,*” and should F. W. die “without issue male living at the time of his death,” then, to his son H. A. “and his heirs forever;” and should H. A. die “ without issue male living at the time of his death” then “to the eldest issue male of my son J. D., then living, when such event shall take place, that is of the sons he may have living at my death, to him and his heirs forever:” And should my son F. W. “have issue male, and such issue male should or shall die without issue male living at the time of his death, then I devise said lands, first to my son H. A. and his heirs, and then to the eldest issue male, living at the time of X X>., under the same limitations, and on the same contingencies, and in the same order and manner as above directed and devised, should my son F. W. die without any issue male living at the time of his death, to them and their heirs forever: And should my son H. A. have issue male living at his death, and such issue male shall die without leaving issue male living at his death, then I devise said lands, should they so have vested under the above contingencies in such issue male, to the eldest issue male then living of my son X F., being of his sons living at my death, to him, his heirs and assigns forever.” ' H. A. died in 1848, leaving issue, a daughter, and three grandsons, children of said daughter'; and F. W, died in 1850, without issue:
    
      Held, that the grandsons of H. A., children of his daughter, were ‘‘issue male” of H. A., in the sense of those words as used by. the testator, and, consequently, that H. A/s estate did not, upon his death, go over to the eldest issue male of X D.
    
      Issue male, when used asvwords of limitation, are equivalent to heirs male of the body, and define an estate, which/it seems, can descend only to males whose descent has been wholly through males; but where they are not used as words of limitation, they mean, in their natural and primary sense, any male descendants, whether their descent be through males or females, and whether they be heirs of the body or not.
    
      BEFORE WARDLAW, J., AT CHESTER, FALL TERM, 1855.
    This was an action of trespass to try title.
    A special verdict was taken, which is as follows:
    We find that the plantation at Landsford, the subject of this suit, was the property of Gen. William Richardson Davie, at his death, which occurred on the 5th November, 1820. That Gen. W. R. Davie devised this plantation, as in his will mentioned, dated the 17th September, 1819, which will is made a part of this verdict. That Frederick William Davie, his son, died on the 9th of April, 1850, without leaving issue male, living at the time of his death — he had a ^on, but he died before him. That Hyder A. Davie died on the 13th June, 1848, having no son living at the time of his death, but a daughter, Julia, him surviving, who, before his death, had intermarried with Richard S. Bedon; that the issue male, of that marriage were Josiah Bedon, Hyder Davie Bedon, William Z. Bedon, and Archibald S. Bedon, all living at the death of Hyder A. Davie, and his brother, Frederick William Davie, except the last, to wit.: Archibald S. Bedon, who was born after the death of Hyder A. Davie.
    We find that at the death of Frederick William Davie, there was living a son of Allen Jones Davie, viz: William Richardson Davie, born in 1816, being the eldest of the issue of Allen J. Davie, which William R. Davie departed this life in 1854, leaving issue. That after the death of Frederick William Davie, to wit.: on the 29th April, 1850, William R. Davie, claiming the said plantation under the limitations contained in the will of Gen. William R. Davie, leased the same to Frederick G. Fraser, executor of F. W. Davie for ten years, for the annual consideration of twenty thousand pounds of ginned cotton delivered at said plantation; and that F. G. Fraser continued in possession, cultivating the same till his death on the 1st February, 1852, after which period the defendant, as executor of F. W. Davie, under the lease, took and yet holds possession. That Hyder A. Davie left a will dated 24th March, 1847, devising his whole estate as is therein-mentioned, which will is made a part of this verdict.
    That William Davie DeSaussure was born in December, 1819, of which fact his grandfather, Gen. W. E. Davie, was aware.
    That the family of Gen. Wm. E. Davie consisted at his death, and at the date of his will, of the following persons, to wit.: his son, Allen Jones Davie, who had issue then living, several sons and daughters, the eldest of which sons was William Eichardson Davie. Also Hyder A. Davie, who had but one child, a daughter, born at the date of the will, and then an infant.
    Also a son Frederick William Davie, who was his youngest child, and unmarried at his death.
    Alsof'a daughter Mary, who was unmarried at the time of his death. Also a daughter, Martha Eebecca, who was unmarried at the period of his death. Also a daughter, Sarah Jones Davie, who, prior to his death, viz : in 1815, had intermarried with William F. DeSaussure, and had issue living at the death of her father, as follows : Eliza Gabriella,'who, since the death of Gen. Davie, intermarried with Dr. Henry K. Burroughs. Sarah Jones, who, since the death of her said grandfather, intermarried with Alex. Hamilton ■ Boykin, and William Davie DeSaussure, the date of whose birth is stated above.
    That General Wm. E. Davie was a distinguished lawyer, and had formerly practiced, for many years, in the State of North Carolina.
    If, upon the facts thus found, the Court shall be of opinion that the plaintiffs are entitled to the land, then we find for the plaintiffs the land described in the plat made by Charles Boyd, dated 17th May, 1813, and made a part of this verdict, and which lands are designated and contained within the lines indicated on the said plat by the numbers 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 28, 29, 30, 31; and the islands opposite, and five dollars damages. But if, upon the facts found, the Court shall be of opinion that the plaintiffs have no title to the said land, then we find for the defendant.
    J. H. Stroud, Foreman.
    Copy op General Davie’s Will.
    
      State of South Carolina :
    
    I, William Richardson Davie, of the Distinct of Chester, in the State aforesaid, declare and publish the following Will as my last Will and Testament:
    1st. I give and bequeath to my daughter, Mary Hayne Davie, the following negro slaves, to wit: Rose, with her following children, Sam, John, Elijah, Diel, Patty and Ossian; the negro woman Venus, wife of Sam; the negro woman Weaser and her children, Winney and Francis; the negro woman Harriet and her two children, Allen and Sophia, and the negro woman Nicelly; and also such further issue as any of the said women may have at my death.
    
      Item: I give and bequeath to by daughter, Sarah Jones DeSaussure, in addition to the slaves I have already given her, the following, to wit: Anthony and his son Shadrach.
    
      Item: I give^nd bequeath to my daughter, Martha Rebecca Davie, the following negro slaves: Old Kate and her son Peter; Phillis, wife of Peter; Henry, son of Phillis; Old Ben; Black Venus and her following children, to wit: Dave, Lett, Jim, Mary, Alfred and Lucine, together with the negro man Batt, and the negro woman Charity, and such issue as the said Charity or Lett may have at my death.
    
      Item: I give and bequeath to my daughter, Mary Hayne Davie, the sum of three thousand dollars, to be paid as soon as the same can be raised out of the proceeds or crops of my estate in manner hereinafter mentioned.
    
      Item: I give and bequeath to my daughter, Sarah Jones DeSaussure, the sum of four thousand dollars, to be paid to her as soon as the same can be raised out of the proceeds or .crops of my estate, in manner as hereinafter mentioned.
    
      Item: I give and bequeath to my daughter, Martha Eebecca Davie, the sum of three thousand dollars, to be paid to her as soon as the same can be raised out of the proceeds or crops of my estate, in manner as hereinafter mentioned.
    
      Item: It is my will, that the negro slaves so bequeathed, as above, to my daughters Mary Hayne Davie, Sarah Jones DeSaussure, and Martha Eebecca, Davie, shall be delivered to them as soon as the demands against my estate, and the money legacies bequeathed in this will shall be paid, except one negro woman or girl as a maid to my daughter Mary, and also to my daughter Martha Eebecca, to be chosen by them respectively, when they think proper, from among the negroes bequeathed to each of them above: And I do hereby positively direct that every proper exertion be made for the payment, as soon as practicable, of the above money legacies.
    
      Item: I give and bequeath to my daughters, Mary Hayne Davie and Martha Eebecca Davie, that is to each of them, the sum of two hundred dollars, to be paid to them respectively and annually on the first day of May in every year until the said negro slaves, so bequeathed to them by this will, shall be delivered to them, agreeably to this will.
    
      Item: I have given to my1 daughter, Mary Hayne Davié, the gold watch now in her possession, also the piano forte, and I now give and bequeath to her a bed, bedstead anc[ necessary furniture to it, to be chosen by herself, unless I should give her such before my death.
    
      Item: I give to- my daughter, Martha Rebecca Davie, a gold watch, to be purchased by my executors, should I not give her one before my death; also the bedstead she now uses, and a bed with the necessary furniture to it, to be chosen by her after her- sister hath made choice.
    
      Item: I bequeath to my daughter, Sarah Jones DeSaussure, my diamond ring, bequeathed to me by my friend, Stephen Cabanus.
    
      Item,: I give and bequeath to William Richardson Davie, eldest son of Allen Jones Davie, the following negroes, to wit: Durham and Martia, and their children, Lettice, Simon and Henry, and also all the money his fathei*, Allen Jones Davie, may owe me at his death, together with such other issue as the said Martia may have at my death.
    
      Item: Being desirous 'to provide a residence for life for my friend and kinsman, Robert Kerr, it is my will and I so desire, that he be permitted to reside on the land I bought of John Rivers, during his natural life, with liberty to cultivate so much of the cleared land as he may think fit, and get what timber he may want from any of my adjacent lands.
    
      Item: In addition to the slaves I have already given my son, Hyder Aly Davie, I also give him the following negro slaves, viz.: .Harry, with his wife, Tilla, and their children, to wit: Taylor, Stephen, Asa and Thomas, and such other issue as the said Tilla may have at my death; also the negro man Tom and his wife, Peg, and their child, Chloe, and such other issue as the said Peg may have before my death; also Cudjo and his son, Phill, also the negro man Ben, and his sister, Pleasant, and such issue as the said Pleasant may have at my death; also the negro man Bill, and his wife, Patt, with her children,- Liley, Jack, Fanny, Williamson and Warren, and all such issue as the said Patt may have more at my death; also, Old Joe and his-wife, Luce, with their children, Charles, Laura, Franklin and Milley; also the negro man called Daniel, and the negro woman called Edie, and her daughter, Amie; these negroes, however, shall remain in the hands of my executors, as part of my estate, until my debts and money legacies are paid, as herein and hereafter in this will directed.
    
      Item: I give and devise to the Governor of the State of South Carolina and his successors forever, four acres of land, to be laid off adjoining the present public graveyard on my land, on the south side thereof, in trust, for the use of the people in my neighborhood as a burying-ground forever, and as a site for a house for the public worship of God, should any Christian congregation think .proper so to use it.
    
      Item: I give and devise all the rest and residue of my lands and real estate, in the State of South Carolina, to my son Frederick William Davie, to him and his heirs forever; subject, however, to the incumbrances mentioned in this will, and it is my will, and I do hereby devise, that in case of the death of my said son Frederick William without issue male living at the time of his death, then in that case I give and devise the lands and real estate, so devised as above to the said Frederick William, to his brother, Hyder Ally Davie, to him and his heirs forever; subject, however, to the incumbrances in this will mentioned : And in case the said Plyder Ally Davie shall die without issue male living at the time of his death, then, in that case, I give and devise the said lands and real estate to the eldest issue male of my son Allen Jones Davie, then living when such event shall take place, that is of the sons he may have living at my death, to him and his heirs forever ; subject to the incumbrances directed in this will: And should my said son Frederick William have issue male, and such .issue male of my said son Frederick William should or shall die without issue male living at the time of his death, then, in that case, it is my will, and I do devise, the lands and real estate so devised and described above, first to my son Hyder Ally Davie and his heirs, and then to the eldest issue male, living at the time, of Allen Jones Davie, under the same limitations, and on the same contingencies, and in the same order and manner as above directed and devised, should my son Frederick William die without any issue male living at the time of his death, to them and their heirs forever: And should my son Hyder Ally Davie have issue male living at his death, have issue male living at his death, and such issue male shall die without leaving issue male living at his death, then, in that case, I give and devise the said lands and real estate so devised and described above, should they so have vested under the above contingencies in such issue male, to the eldest issue male then living of my son Allen Jones Davie, being of his sons living at my death, to him, his heirs and assigns forever.
    
      Item: It is my will, and I do hereby devise and direct, that, until the demands against my estate and the money legacies bequeathed by this will are fully discharged and paid, my negro slaves bequeathed to my daughters, and thoso bequeathed to my son Hyder Ally, and those bequeathed by the residuary clause of this will to my son Frederick William, that is, all my negro slaves, except as is in this will excepted, shall be kept and worked together on my plantations on the Catawba River, and the proceeds of the crops shall be applied to the above purpose of the payment of debts and legacies, until they are fully discharged, it is to be clearly understood as my will, and I do will and direct, that all the mules and horses heretofore used on the plantations, the stock of every kind, plantation tools and utensils of every kind, with those of the blacksmith shop, remain to be used with the negroes on the plantations as heretofore, until the above object of the payment of debts and legacies shall be completely effected.
    
      Item: It'is my will, and I hereby direct, that my mills shall be kept in repair at the expense of my estate until the above object of paying debts and legacies is effected, and the profits and proceeds thereof applied.also jointly with the proceeds of my other estate to the raising and paying the money so required.
    
      Item: I give and devise to my son, Allen Jones Davie, the-lands I bought of Armstrong in the State of Tennessee, to him and his heirs.
    
      Item: I give and bequeath to my said son, Allen Jones Davie, all the silver plate given to my late wife, his mother, by his grandfather, Gen. Jones.
    
      Item: In addition to what I have already given my son Hyder Ally Davie, I also give and bequeath to the said Hyder Ally Davie, twelve hundred and fifty dollars, unless I should advance that sum to him before my death, in which case this legacy is revoked.
    
      Item : I give and bequeath my gold watch, and family seal, to my son Frederick William, to be delivered to him when he is twenty-one years of age; and in case of his death, before that time, I give them to my son, Allen Jones Davie.
    
      Item: I give my arms and military accoutrements to my son, Frederick William, and in case of his death, without a son, then to Allen Jones Davie. Let them never forget that these arms were honorably employed in establishing the liberties of their country, and I request that they may be preserved in the family forever.
    
      
      Item: I give and bequeath to my son, Frederick William, the whole of my library, whether books or manuscript, and in case of his death, before he is twenty-one years of age, I give them to his brother, Allen Jones Davie.
    * t- * * * * *
    
      Item: I give and bequeath to my servants, Ned, Nancy, and Killo, the sum of ten dollars each.
    
      Item: It is my will, and I hereby direct, that whatever may be the state of my crops at the time of my death, whether growing or housed, that the proceeds of the same, after the supply of the plantation and family, and the proceeds of the mills, if any on hand, shall make part of the fund for the payment of debts and legacies, as well as the money on hand or due to me.
    
      Item: I give and bequeath to my son, Frederick William, two hundred dollars, to be paid to him annually until the debts and legacies are paid, and he shall take under the residuary clause in this will.
    
      Item: I give and bequeath all the rest and residue of my estate, whether real or personal of whatever kind the same may be, to my son Frederick William Davie, to him and his heirs, the slaves, horses, mules, utensils and other articles mentioned being subject to the directions of this will, until the debts and legacies are paid; and I earnestly recommend Iris sisters to his protection and unremitted attention. And as I know not when or where I shall die, or what may be the condition of my family at the time, it is my will, and I do hereby direct that my daughters, Mary H. Davie and Martha Rebecca Davie, shall, if they or either of them choose to reside at my dwelling-house, have the use of my dwelling-house, kitchen and other offices, with the furniture of the house, my carriage and carriage-horses, my servants Ned and Cook, until they have received the whole of the property bequeathed to them by this will, the stock of provisions and necessaries provided and on hand shall be considered for the use of them and their brother, Frederick William, and a regular and sufficient supply of pro-. visions set apart for them annually, should they thus live together, until the above event takes place, and I do hereby will and direct, that my dwelling-house, and all the other houses on the plantation, be kept in proper repair by the estate, until the arrangements, by this will directed, are fully effected.
    
      Item: I hereby appoint my son, Hyder Ally Davie, and my son-in-law, William F. De Saussure, Guardians to my son Frederick William, and I recommend the care of the mind and morals of this young man most earnestly to them.
    
      Item: I hereby appoint my son, Hyder Ally Davie, and my son-in-law, William F. De Saussure, executors to this my last will and testament, and also my son, Frederick William, when he shall attain the age of twenty-one years, hereby declaring this to be my last will and testament, written altogether with my own hand, and expressed, I hope, in so plain a manner that my intention cannot be mistaken, with my name written on each page.
    In witness whereof, I have hereunto set my hand and seal, this 17th day of September, in the year of our Lord eighteen • hundred and nineteen.
    W. E. Davie, [l. s.]
    Signed and published in the 1 presence of j
    Cadwallader Jones,
    Allen Jones Green,
    Fred’k L. L. Pride.
    
      Copt op Hyder Ally Davie’s Will.
    
      South Carolina:
    
    This the last will and testament of Hyder A. Davie.
    I devise and bequeath my whole estate, real and personal, to E. W. Davie, Lewis A. Beckham, and W. E. DeSaussure, in trust for the sole and separate use of my daughter, Julia Bedon, free from the debts, contracts, or control of her husband, and at her death, in trust for her child or children who shall be living at the time of her death; provided, that if any of her children shall have died during her life, leaving children who shall be alive at the death of the said Julia, such children shall represent their parent, and take the share such parent would have been entitled to, if living at her death.
    If it shall become expedient to change the investment of any portion of my property, such change may be effected with the consent of my trustees, or a majority of them, at the request of my daughter; but the substituted property shall be, and the same is hereby settled, to the same uses as attached under this will to the property sold.
    It is my will and desire that my negroes shall not be removed from the District of Chester in this State.
    I constitute the before-named trustees, executors of my will.
    In witness whereof, I have hereunto set my hand and seal, this 25th March, 1847.
    Hyder A. Davie, [l. s.]
    Witness:
    James Boatwright,
    Robert W. Gtbbes,
    Henry D. Bull.
    His Honor ordered the postea to be delivered to the plaintiffs.
    The defendant appealed.
    After argument in the Law Court of Appeals, in December, 1855, the case was ordered to this Court, where it was now heard.
    Grregg, for appellant,
    cited Ridgeivay vs. MunJcettrich, Drury & W. 84; Dalzell vs. Welch, 2 Sim. 319; Slater vs. Dangerfield, 15 M. & W. 269 ; Grreenwood vs. Rothwell, 5 M. & G. 628; Merest vs. James, 1 Brod. & B. 484; Lees vs. Mosley, 1 Y. & C.' 589 ; Ellis vs. Selby, 7 Sim. 352 ; Mandeville vs. LacJcey, 3 Ridg. P. C. 352; Sibley vs. Perry, 7 Yes. 532; Peel vs. Gatlow, 9 Sim. 372; Swift vs. Swift, 8 Sim. 168; Ryan vs. Cooley, Lloyd & Gr. 7 ; Burleson vs. Bowman, 1 Rich. Eq. Ill; Bernal vs. Bernal, 3 Mylne & C. 559 ; Oddievs. Woodford, 3 Mylne & C. 584; 2 Jarm. on Wills, 353, et seq.
    
      DeSaussure, Petigru, contra,
    cited 9 Bligh, 237; 1 Jarm. on Wills, 490; 3 Atk. 774; Có. Lit. 25, a,b; 2 Jarm. 9, 10 ; Hob. 31; .1 B. & P. 243 ; 2 Bligh, 1; Cro. Jac. 590; 1 McO. 70; 1 Fearne, 171; Hayes on Bst. Tail, 3 Table, Nos. 62, 74; 3 T. R. 143 ; 7 T. R. 789; Fearne, 552, § 20 ; Rutledge vs. Rutledge, Dud. 201; 3 Bro. 367; 3 Swanst. 320; 3 Bl. Com. 115; 2 B. & P. N. R. 38; 1 Bos. & P. 626.
    
      McAliley, in reply,
    cited 3 Bro. P. C. 154; 4 Yes. 277 ; 2 Jarm. on Wills, 7, 10, 527 ; 20 Eng. Ch. R. 503; Key vs. Key, 19 Eng. L- & E. R. 617 ; Hurlbut vs. Emerson, 16 Mass. 240 ; 3 Cond. Eng. Ch. R. 729.
    
      
       The following Circuit decroe of his .Honor, Chancellor Johnston, in the case of Frederick G-. Frazer vs. William R. Davie et al., delivered at Richland, March 19, 1851, construes the same will:—
      Johnston, Ch. — This is an application, at chambers, for an injunction.
      The plaintiff seeks, upon the ground of mistake, to be relieved of a lease, which he took from the defendant, W. R. Davie, of premises described in the pleadings. It is necessary to look into the title to the premises demised, in respect to which the mistake, if any, was committed.
      General William Richardson Davie, at his death, on the 5th of November, 1820, left a last will and testamant, which had been duly executed on the l'Tth of September, 1819.
      After numerous bequests and devises, residuary clauses were inserted in the will, in the following terms:
      “I give and devise all the rest and residue of my lands and real estate, in the State of South Carolina, to my son, Fred. Wm. Davie, to him and his heirs for over." “ And it is my will, and I do hereby devise, that, in case of the death of my Said son, Frederick William Davie, without issue male, living at the time of his death, then, and in that case, I give and devise the lands and real estate, (so devised as above, to the said Frederick William,) to his brother, Hyder Ally Davie, to him and his heirs for ever." “And in case the said Hyder Ally Davie shall die without issue male, living at the time of his death, then in that ease, I give and devise the said lands and real estate to the eldest issue male of my son Allen Jones Davie, then living, (when such event shall take place,) that is, of the sons he may have living at my death, to him and his heirs for ever."
      “And should my son Frederick William, have issue male, and such issue male, of my said son Frederick William, should or shall die without issue male, living at the time of his death, then in that case, it is my will and I do devise the said real estate (so devised and described above,) first, to my son Hyder Ally Davie and his heirs, and then to the eldest issuo male, living at the time, of Allen Jones Davie, under the same limitations, and on the same contingencies, and in the same order and manner, as above directed and devised, (should my son Frederick William die without any issue male, living at the time of his death,) to them and their heirs for ever."
      “And should my son Hyder Ally Davie, have issue male, living at his death, and such issue male shall die without leaving issue male, living at his death, then in that case, I give and devise the said lands and real estate so described and devised above, should they so have vested, under the above contingencies, in such issue male, to the eldest issue male then living of my son Allen Jones Davie, being of his sons living at my death, to him, his heirs and.assigns for ever."
      These residuary dispositions embraced a valuable estate, containing upwards of three thousand acres, called Landsford, the residence of the testator, on the Catawba.
      Frederick William Davie, to whom the same was devised in tho first instance, died without issue, the 9th of April, 1850; being at the time in possession of the premises, upon which a crop was then set, and leaving a will, of which the plaintiff is executor.
      Hyder Ally Davie had already died, (to wit, on the 30th of June, 3848:) his only child who, survived him was a daughter, Julia, who, in her father’s life time, had intermarried with Richard S. Bedon. Of this marriage the following male issue wero born, to wit, Josiak Bedon, Hyder Bavie Bedon, William Z. Bedon and Archibald Stobo Bedon ; all of whom are now living. The three first of them were born in the lifetime of their grandfather, Hyder Ally Bavie. The last was born after his death, but before the death of Frederick Wm. Bavie.
      The eldest male issue of Allen Jones Bavie, living at the death of Frederick William Bavie and Hyder Ally Bavie, respectively, was the defendant, William R. Bavie, a son of the said Allen Jones, and was born before the death of the testator, General Bavie.
      Upon the death of Frederick William Bavie, this defendant claimed the Lands-ford estate; and the plaintiff, under a construction which he put upon the will of the testator, (under what he alleges in his bill to have been a mistake) agreed, as executor of Frederick William Davie, to lease tbe premises for ten years, at a yearly rent of twenty thousand pounds of ginned cotton, taking date from the execution of the lease, which bears date the twenty-ninth of April, 1850.
      The plaintiff was afterwards advised that the construction of the will of General Bavie, under which he leased the premises, was erroneous. That according to the true construction of that will, the fee was devised, in the first instance to Frederick William Bavie, upon condition that it pass over to Hyder Ally Bavie, if Frederick William should die without living male issue. That that contingency having happoned, the fee vested in Hyder Ally, and upon his death became subject to the provisions of his will, (by which his estate was settled in trustees, for the sole and separate use of Mrs. Bedon, his only child.) That by the terms of General Davie’s will, this fee, thus vested in Hyder Ally, was not to be divested, nor pass to the ^defendant William R. Bavie, except upon the contingency that Hyder Ally left no male issue; and that, inasmuch, as at his death he left at least three grandsons, children of his daughter, Mrs. Bedon, that condition never happened; and so William R. Bavie never acquired any title to the land, and had no right to demise it.
      He was moreover instructed, that even if the title accrued to the said defendant at common law, upon the death of Frederick William Bavie, the effect of the statute of 1789 was to,postpone it until the end of the year 1850, Frederick William having died after the first of March in ’that year, after having set a crop on the land, and that the agreement to pay rent for the residue of that year was without proper consideration to support it, and, therefore, not obligatory.
      Upon this advice, the plaintiff refused to carry out the lease; and, the rent of 1850 having accrued, the defendant, William R. Bavie, distrained for it. The plaintiff replevied; and now files his bill to be relieved of his contract, and to enjoin the collection of rent.
      The trustees of Mrs. Bedon have also brought their action against the plaintiff, in possession, to recover the land; and this is also one of the grounds of the bill, to which Mrs. Bedon and her trustees, as well as William R. Bavie, are made parties.
      The application now before me is heard upon the bill alone; and I am, therefore, to assume as fully as if I had evidence of the fact, that, if the construction of General Davie’s will, under which the lease was executed, was erroneous, the error arose from mistake.
      The principal inquiry is, whether it was erroneous; the next, whether, if erroneous, fcke mistake which led to the error is a ground of relief, under the circumstances of the case.
      There is no doubt the fee was vested, by the express terms of the will, in Frederick William Davie. He left no male issue, in any sense of that term, (no male descendant, proximate or remote,) and, therefore, the contingency upon which his estate was to determine and pass over, occurred upon his death. Upon that event it would have vested, according to the terms of the will, in Hyder Ally Davie, if he had been then living; and the provisions of his will would have applied to it. According to the late case of Didst vs. Dawes, the only effect of his predecease was to confer the fee upon those who were his heirs general at the time of his death; that is, upon Mrs. Bedon, who was his only heir. Whatever doubts may be suggested as to the correctness of that decision, I am bound to follow it here; nor is it necessary in this case to determine whether, taking under the description of 'heir, Mrs. Bedon took as a purchaser, and independently of her father’s will, or as heir, and through him, in such a sense as to imply in him a power of disposition, to such an extent as would warrant the application of his will to the subject. It is enough°to say, that the land having been given (upon a contingency which has happened) to Hyder Ally and his heirs, there can be no reverter to tbe grantor, so long as there is no failure of heirs of the grantee; and the estate must remain with him and his heirs, unless some condition accompanying the gift of it, has occurred, by which it was to become divested.
      The condition expressod in this will is, that “in case Hyder Ally Davie shall die without issue male, living at the time of his death,” then the land shall go to the eldest issue male of Allen Jones Davie, &c., giving a description to which, no doubt, the defendant, William B. Davie, answers.
      The only question then is, whether Hyder Ally Davie left issue male at his death, in the true meaning of the term, as employed in this will.
      FTo doubt the general meaning of issue is lineal descendants of every degree of remoteness, and that all lineal male descendants are embraced within the terms, issue male.(a) And if there is nothing in the context of this will leading to a different construction, the existence of Mrs. Bedon’s sons, at the death of their grandfather, H. A. Davie — though they were his remote and not his immediate issu0 and though they were issue in the female and not in the male line — negatived the condition of his dying without surviving male issue, and prevented the estate from going over.
      But while it is true that such is the general and natural meaning of the terms issue or male issue, that meaning .may, as I have intimated, be deflected.(b) Thus, if a testator annex words of explanation, showing that he uses the terms in a special sense, they must be construed in the sense intended by him. He translates his own language, as has been well said, and effect must bo given to his meaning as explained by himself. Examples of this are found in those cases in which testators have employed the words issue and children synonymously; in which cases the word issue has been restricted to mean children, or, on the other hand, the word children enlarged to embrace issue generally, according to the intention manifested.
      (a) 2 Jarm. 328, ch. 29, § 1; Id. pp. 33, 38.
      (b) 2 Jarm. 353, ch. 29, § 3, 4; Burleson vs. Bowman, 1 Rich. Eq. 111.
      
        In some instances, resort has heen had to other and even disconnected parts of the will, to ascertain the true intention.(a) In one of these cases, Lord Chancellor Sugden said, it was a settled rule of construction, and one to which, from its soundness, he should always strictly adhere, never to put a different construction on the same word where it occurs twice, or oftener, in the same instrument, unless there appear a clear intention to the contrary. Though this proposition has been admitted to be generally sound, and with proper qualifications may be so, it does not, as has been remarked, by Mr. Jarman, dispose of all the difficulties attending these cases; for the question still is, what amounts to “a clear intention to the contrary,” so as to take a given case out of the general rule — a point upon which different minds will, very probably, draw different conclusions. Besides, the proposition, as laid down, does not necessarily mean, as Mr. Jarman in his note upon the case seems to apprehend, that where a term or phrase, occurring several times in an instrument, is defined in one instance and not in the others, the definition shall be extended to the instances where it is omitted, whether the definition was clearly intended to be general and to apply to the instrument throughout or not. The proposition may mean directly the contrary; that where the words stand in a context supposed to so explain or define them as to impart to them a special meaning, that meaning shall not without strong necessity be attributed to them there, in opposition to their signification in other parts of the instrument, where they occur without that context.
      But whatever may be thought of the proposition of Lord Chancellor Sugden, and whatever may be thought of the remedy proposed by Mr. Jarman, in his note, by way of obviating a latitudinarian construction, as to what amounts to “a clear intention to the contrary;” and whatever may be thought of another method of interpretation in doubtful cases, which has sometimes been resorted to, viz: to look to the will for the purpose of ascertaining what operation the testator has ascribed to the words he has employed — what effects he supposes they are fitted to produce, or must produce; whatever may be thought of any or all of these methods, all the cases show, and common reason dictates, that the context may and must have an influence in the construction of testamentary papers. That influence will be more or less controlling, according to the degree of evidence it.bears as to the true meaning. In some cases set phrases occur, and the influence they are to have on the construction may be reduced to rule. In other special instances room may exist for a rule. But so infinitely varying are contexts, that in few instances can any rule apply, beyond the general one, that words and phrases shall be construed in their obvious and natural sense, unless there is enough somewhere in the context to convince a sound mind that they were intended differently. "Where the context produces that conviction, and to the extent that it produces it, it must govern.
      This general rule applies not only to wills, but to every other instrument by which individuals, or societies of men, undertake to communicate their thoughts, or express their intentions, or embody their contracts, or agreements, or enactments, whatever their nature may be.
      I do not pause to adduce and comment on the cases. They are collected by Mr. Jarman in his second volume on Wills, chap. 29, divis. 2, sect. 4, pp. 353-361. I proceed immediately to the will before me.
      
        
        (a) Ridgeway vs. Munkettrick, Dru. & W. 84, cited 2 Jarm. 356, note g.
      
      
        The scheme of this will is peculiar. In no instance has the testator given any portion of his real estate to his daughters, or their issue, male or female.
      The whole of it is given to males. It is first given to his son Frederick William in fee simple. Upon a contingency, that estate is to determine, and the fee is to pass to his son Hyder Ally. Upon a contingency nearly similar, that estate is to cease; but then the fee is to pass, not to his other son, Allen Jones, but, passing him by, is to vest in his eldest issue male,.of a special description.
      The contingencies upon which the estate is to pass from Frederick William to Hyder Ally are twice described; first, if Frederick William shall leave no issue male, and second, if he shall leave neither issue male, nor male issue of that issue, living at his (Frederick William's) death. But, observe, nothing is given to this issue or their issue, if they should survive Frederick William. In that case his fee is simply confirmed in him.
      The contingency upon which the estate is to pass from Hyder Ally is also twice described: first, if he shall leave no issue male, living at his death; second, if he shall leave issue male, and the estate shkll be vested in that issue, and that issue should afterwards die, leaving at his (the issue's) death no male issue-of his own. In either of these events, the estate is to go over to its ultimate destination.
      And what is that destination? The eldest male issue of Allen Jones, then living "of his sons,"or "being of his sons," who were m esse at the testator's death.
      But among all these dispositions there is no gift to any of the issue of his sons, except to those of Allen Jones. The fee is constantly given, but never limited; first to Frederick William, then limited over to Hyder Ally, and then to special issue of Allen Jones.
      It was to pass from Frederick William only in case he left no male issue, nor issue male of that issue. If survived by either, his estate was established in him, with the most unlimited power of disposition; nevertheless, there is no suggestion of the estate's vesting in his issue of either or any class.
      Though Hyder Ally should leave male issue, notwithstanding it is suggested that that issue might get the estate, yet it should be defeated, unless the issue should be survived by male issue of its own; in which case it was to go to the issue of Allen Jones, to whom the testator neither imparted any part of the estate, nor any power of disposition over it.
      How, if General Davie had been asked why he made dispositions so singular and whimsical and incongruous, as these at first view appear to be, might he not have explained himself in some such way as this:
      I have certain sentiments upon the subject of landed property, leading me to give it to the families of my sons, and to withhold it from my daughters. Where I give it to either of my sons themselves, I think it proper to invest them with such a power of disposition over it as their exigencies may require; and, although I have made the existence of male issue at their death a bar to the estate's passing away from them, I have given nothing to the issue, leaving the whole estate in the power of my sons, with a view to secure to them the dependence, and consequent obedience of their children. By the description I have given of the persons whose existence is to prevent the estate passing over, I have indicated a wish that my sons should, in the exercise of their power, by testamentary disposition or otherwise, vest it in them, if their own circumstances, or the conduct of those persons, may, in their judgment, warrant it. But, for reasons which exist in my own mind, I have imparted a more effectual power to my sons in some instances than in others, and in one instance I have'purposely withheld all power.
      Frederick William, though a boy, I constitute the head of my family. In my will is a clause, in which I commit to his care and protection his unmarried sisters. And I am willing to give him the unlimited disposition of the property I devise to him. As head of the family I give him as large a power as I, the present head of it, possess. If he does not dispose of the property in his lifetime, but leaves male issue or their male issue, and should devise it to them, out and out, unconditionally and forever, I wish him to understand that I am content. Not so with Hyder Ally. While I have given him such a power as may answer all the necessities under which he may happen to fall, and as may secure the subordination of this male issue, I have indicated to him my wish that he should give them the property. But, still, it is not my wish, should he do so, that they shall have it out and out, as in the former case. Though he give it to them, my desire is, that in case of failure of male issue on their part, the estate shall come back again into my male line. In considering the ultimate limitations over, by which that is to be effected, I have been governed by these considerations; and I have reasons for not giving the property or any disposition over it, to my son Allen Jones. I must, therefore, with my sentiments, substitute his male issue in his place. With his present family I am satisfied. His sons I know and love, and if he should have others during my life, (by his present or any future marriage,) with whom I shall not be pleased, or if his existing sons should all die, my will is still revocable, and I can alter it. Under these circumstances, and possessing this power of revocation, I have ventured to lodge the ultimate limitation in the eldest male issue of Allen Jones, who may be living when the estate shall fall in, provided it include, or descend from, those of his sons whom I may have an opportunity to know and observe. I have, therefore, employed the terms “eldest male issue of Allen” consisting “of his sons,” or “being” issue “of his sons,” whom I have described.
      Would not these reasons have explained the whole will? If they would, (and I think they do,) they furnish an interpretation which harmonises every part of the instrument; and such an exposition is constantly preferred by all the authorities to a construction of the different parts, considered separately from each other.
      I look upon it, that this general view accounts for every part of the will; and, without perverting its natural meaning in any part, reconciles the whole.
      If we dismiss this general view, and (dividing the will,) examine its several parts, still, I conceive the result must be the same.
      1. We shall find, I think, that when the testator employs the term issue as a bar to the estate’8passing over, (which is the most material point here,)he means immediate issue only; and whenever he wishes to enlarge the bar, by extending it to embrace remote issue also, he uses the terms issue of issue, as contradistinguished from this immediate issue.
      2. That if, notwithstanding this careful distinction, we were still bound to include remote lineal descendants under the general term issue, we should not be at liberty to embrace within the term even male descendants through a female line, seeing that a contrary intention constantly is expressed, in the direction that the bar is to consist of male issue of male issue, an unbroken chain of males.
      3. That, in those parts of the will where the testator employs the word issue, or issue male, not by way of describing a bar to prevent the determination of a pro-ceding estate, but as descriptive of the persons to whom he intends to limit over the property, the primary meaning which he attaches to these words, is that of immediate descendants, or immediate male descendants; and that where, on the one hand, he desires to limit his devise to specific persons among the immediate descendants, instead of leaving it open to all of them; or where on the other hand, his object is to render it transmissible to their issue, he deems it necessary to make use of additional words, not by way of defining the terms issue male, as was supposed in argument, but assuming them to mean immediate male issue, to restrict their primary range, and superadd another class to it, consisting of other issue.
      1. The first of these three propositions is conspicuously illustrated in the devise to Frederick William Davie. In the first instance it was provided, that his estate should not determine and go over, if he left male issue living at his death. Why, then did the testator deem it necessary to make the provision, subsequently, that the estate should not pass if he left issue of that issue ? Can we account for this secondary provision consistently with the assumption that the testator supposed, or intended, that the issue of issue was included in the general term of issue? or that he was conscious of having used the latter term in a sense that would admit of it?
      In the case of Hyder Ally, it is true, these questions cannot be asked with the same degree of propriety. The testator in that instance was contemplating a contingency like the following, to wit: That Hyder Ally might be survived by male issue, and might have vested the estáte in them; in which event, the chances of the limitation over to Allen Jones’ issue might be forever defeated. This the testator desired to avert; and, therefore, to renew the chances of the ultimato limitation, he provided that that limitation should revive, if Hyder Ally’s issue, (who had once defeated it,) should eventually die issueless. This provision, therefore, cannot be affirmed to be purposeless, as the secondary provision in the case of Frederick William was. But, still, the discrimination was made here as there, between issue and the issue of issue, and there is something in the terms in which the issue are spoken of, indescribably fitted to persuade the mind that by that term immediate issue were intended. I cannot analyze the impression produced, but it seems to consist in the individualized and impersonated form in which they presented themselves to the testator’s view. “If the isue shall die, without leaving issue at his death;” is this the light in which remote issue would be likely to exhibit themselves to his eyes ? or be spoken of ?
      
        2. As to the second proposition, to wit: That, though obliged to let in remote male descendants, under the general terms male issue, as a bar to the ultimate limitation, yet such descendants were not intended to include any that might arise in the female line. I think the mere reading of the will shows that. Issue male and the male issue of such issue is the continual theme of the will. If Hyder Ally had left only Mrs, Bedon, it is confessed — and could not have been denied — that the testator intended to take the estate from her. Is it a natural conclusion that her children can have stood higher in his favor than herself? — that he would give to the children what he denied to the parent? Is it a natural conclusion that he who had sedulously abstained from every provision by which, in any contingency, even the male issue of his own daughters might take any portion of his lands, at the same time harbored an intention more favorable to the same description of issue of his granddaughters ! It appears to me unreasonable and incredible.
      3. I have said, that where the testator uses the term male issue, without more, he intends immediate issue, exclusively, not only where he is describing a bar, but where he is giving an estate. I refer, now, to the ultimate disposition of his real estate. The argument of the defendant’s counsel proceeded upon an idea different from that which I entertain. I do not think the testator, when speaking of the eldest male issue of Allen Jones, employed the further words “that is, of his sons’’ and “being of his sons,’’ living at the falling in of the estate, and also at the testator’s death^I do not think he superadded these words by way of definition, as if he had said by male issue, I mean sons. If his object had been to define, it would still deserve to be considered to what extent he intended his definition to spread, or to apply. Bid he intend it for all parts of the will, or only for the particular clause in which it occurs — there, or every where? I could not hold, with satisfaction, that a definition, or even an explanation, occurring in a particular place, of words or phrases which happen to be employed there, must be extended to all other places, throughout the instrument, wherever they may be used. If that is Lord Chancellor Sugden’s position, I do not think it is either sound, or has been well established as a rule. No communication that ever proceeded from the lips or from the pen of man, however deliberate or well considered, could stand such a rule — not though it were moved by inspiration — not even the Holy Oracles, intended and accepted as the Infallible Rule of Haith and Practice, and as a sufficient guide for both in all cases. Not only the different books, though protected by a common and infallible inspiration, but the same book, proceeding from the same author, being couched in human language, betrays, in numberless instances, that want of uniform precision which must necessarily arise from the infirmity of the vehicle employed. The same word is used, by the same inspired writer, in different senses,* and, though confined by definition, or compressed by the context, in one place, it has a different moaning in another. And yet a real uniformity reigns throughout, and lends the stamp of truth to the whole and every part.
      An immediate context may have a limit, and, in fairness, should not be extended to the interpretation of words or phrases capable of various meanings, wherever they occur, in distant parts of an instrument, merely because defined, or explained, in a particular place. The question always is as to the extent to which the explanation is intended to imply.
      But, though the words to which I have alluded, in the limitation over, were not used by way of defining or explaining what the testator intended by issue male, they are the more efficacious precisely on that account. They betray evidence— without any design to communicate it — of the fact we are concerned to ascertain; and this has been pronounced, by an elegant and philosophical writer, — who has proved his ability to investigate such subjects by the best specimen of the analysis of circumstantial evidence that I know of, — to be the most convincing of all kinds of testimony.(a)
      The words to which I have referred were, in my view, introduced, not for the purpose of showing that, by issue male of Allen Jones, his immediate male issue, or sons, were intended, but with the design of limiting the intended bounty to a part of them: thus evidently, but undesignedly, manifesting the fact that, in the testator’s conception, the words issue male applied only to sons; and, without the restricting words, would have embraced all the sons.
      At the same time, the testator (without impugning the idea that Allen’s issue meant his sons,) managed, by a contrivance of language somewhat singular, perhaps obscure, (in which the monosyllable, “ of,” appears the most efficacious,) to extend the word issue to the issue of the selected sons also.
      I have done with this subject. I do not think that the existence of Mrs. Bedon’s male children, at Eyder Ally’s death, was sufficient to prevent the estate from going over.
      
        v •?' m
      
      It is ordered that the application he discharged,
      3?rom this decree notice of appeal was given, hut the appeal wae never prosecuted.
      (a) Paley’s Horse Paulinee.
    
   The opinion of the Court was delivered by

Wardlaw, J.

The will of Gen. Davie contains the following clause:—

“Item. I give and devise all the rest and residue of my lands and real estate in the State of South Carolina, to my son Frederick William Davie, to him and his heirs forever, subject however to the incumbrances mentioned in his will:— and it is my will, and I do hereby devise, that in case of the death of my said son Frederick William, without issue male living at the time of his death, then, in that case, I give and devise the lands and real estate, (so devised as above to the said Frederick William,) to his brother Hyder Ally Davie, to him and his heirs forever; subject however to the incumbrances in this will mentioned.
And in case the said Hyder Ally Davie shall die without issue male living at the time of his death, then, in that case, I give and deVise the said lands and real estate to the eldest issue male of my son Allen Jones Davie, then living when such event shall take place, that is, of the sons he may have living at my death, to him and his heirs forever, subject to the incumbrances directed in this will.
And should my said son Frederick William have issue male, and such issue male of my said son Frederick William, should or shall die without issue male living at the time of his death, then, in jdiat case, it is my will, 'and I do devise, the lands and real estate so devised and described above, first to my son Hyder Ally Davie and his heirs, and then to the eldest issue male, living at the time, of Allen Jones Davie, under the same limitations and on the same contingencies, and in the same order and manner (as above directed and devised should my son Frederick William die without any issue male living at the time of his death,) to them, and their heirs forever:
And should my son Hyder Ally Davie, have issue male living at his death, (have issue male living at his death, [repeated],) and such issue male shall die without leaving issue male living at His death, then, in that case, I give and devise the said lands and real estate so described and devised above, (should they so have vested under the above contingencies in such issue male,) to the eldest issue male then living of my son Allen Jones Davie, being of his sons living at my death, to him, his heirs, and assigns forever.”

There are in the original will no marks for parentheses, nor words in italics or capitals, nor even ordinary marks for punctuation.

The plaintiffs in this case are devisees under the will of Hyder A. Davie the defendant is a tenant under William R. Davie, son of Allen Jones Davie. The case submitted by the special verdict is resolved into the question, whether grandsons of Hyder A. Davie, living at his death and being children of his daughter Mrs. Bedon, come within the terms issue male in this part of the clause, “and in case the said Hyder Ally Davie shall die loithout issue male living at the time of his death.” Did Hyder A. Davie die without issue male living at the time of his death? In the true sense of the will, did a grandson through a daughter constitute issue male, or was there required either a male through males, or a son, — male issue in first degree ?

The special verdict finds the whole will, the condition of the testator’s family at the date of the will and at his death, and the fact that the testator was a distinguished lawyer, who had formerly practised in the State of North Carolina. The question submitted must then be decided by the Court from the will' itself, with such aid as these extraneous circumstances may afford.

In various other clauses of the will the word issue' occurs in connexion with female slaves bequeathed, and from the words “farther,” “other,” “more,” which are sometimes joined to it, it has been argued that the testator has in those clauses shown that he used issue to mean children, and that, in the part of a clause particularly important in this case, the word issue should be construed according to the exposition elsewhere given of it. But in the strongest of these instances that can be selected, this inferential exposition is, at the most, doubtful. The-testator, when he drew his will, did not probably contemplate any descendants of slaves bequeathed besides immediate progeny: but it is not at all plain that if he had lived for the happening of the ease, his will would not have shown his desire for the grand-children of a female slave, who with her farther issue was bequeathed, to pass under the word issue wherever their mother would pass.

To the clause above recited we may then confine our attention.

Issue, when used as a word of limitation is equivalent to heirs of the body ; and issue male so used, like heirs male of the body, defines an estate, which, according to the rules of inheritance well settled in England, can descend only to males whose descent from the proposed ancestor has been wholly through males, But where issue is not used as a word of limitation, its natural and primary meaning, without explanation, is descendants in every degree, whether heirs or not; and, in like case, the like meaning of issue male is, descendants that are males. Those who, in the construction of a will, would depart from the primary and natural meaning of the terms, must show how a different meaning is fixed by explanations which are furnished by the will itself taken in connexion with the circumstances under which it was made. That task the defendant here assumes.

First. It is said that the testator was a lawyer who had practised' in North Carolina, where fees-tail might have been implied : — had a general jmrpose to establish the succession to his Landsford estate in his male descendants, who bore his name: — by his constant use of the terms issue male instead of male issue, has shown that his thoughts were turned to the effect of those words in limitations of estates: — by speaking in the latter part of .the clause above recited, of the case of the lands having “ vested under the above contingencies in such issue male,” has shown at least an expectation that such issue male, if left living, would in some way obtain the lands: — and in general, in other parts of the clause, has indicated his intention that none but males through males should take, which intention should avail to explain issue male in the part immediately affecting this case.

These propositions thus connected, contain some matters which should not be brought into the discussion, some which are really adverse to the conclusion that the defendant would deduce from them, and some which may raise doubts but cannot afford the explanation demanded. We will examine them, intending hereafter to particularize, and subject to a separate analysis, each of the most material of the other parts of the clause that are referred to in the last proposition.

As to the law of North Carolina, as to any preference felt by the testator for males who bore his name, and, as to any intention or purpose entertained by him and not expressed in his will, the special verdict is silent. Evidence could not have been admitted to show intention as an independent fact — for, however influential intention when ascertained may be in the construction of a will, it must be sought in the will itself, with the aid of such circumstances as explain the meaning of the words there used.

That the testator was a lawyer can be no reason why technical terms belonging to his profession should have a signification different from that, which technically is proper for them when they are used as he used them. Even if by habit, or tacit reference to some peculiar code, he may be supposed to have used ordinary terms of art in some peculiar sense, of which the will properly expounded gives no interpretation, the terms, being in their ordinary meaning sensible in their application to extrinsic circumstances, could not acquire a peculiar meaning from any force of external evidence.

It is admitted on both sides that the testator’s real intention was to create successive fees simple in his sons Frederick William, and Iiyder Ally, subject to defeasance upon contingencies; —which contingencies relate to the issue male of these sons, but give nothing in any event to such issue. This is the obvious result of the words “to him and his heirs forever,” industriously used, and in all probability well understood by the testator. With this, (if we suppose that the. testator expected these sons respectively to keep the estate as he had done and to devise to one of their- male issue, if they left any,) may consist the equivocal expression, “ should they (the lands) so have vested under the above contingencies in such issue male.” It would be pushing construction very far, if without strong necessity raised by all thé words in their application to external things, the plain expressions of one estate should be made to yield to the implication of a different one. But still, after all this, there seems to lurk in the propositions of the defendant, an insinuation that General Davie really intended the issue male of each of his sons, in certain contingencies, to take in some way by force of the will; and that this intention affords some explanation of the sense fie ascribed to issue male. Let us see what estate the issue could have been intended to take; and what assistance any conceivable estate can give to the defendant.

If, in any contingency, issue of Frederick William or Hyder could have taken by force of this will, they must have taken as purchasers or as heirs. If they were intended to take as purchasers, the same question, which now employs us, would have arisen concerning the meaning of issue male: all male descendants would have been included, if some restrictive meaning did not arise from the context. For instance, if the devise had been construed to be to Frederick William for life, with remain- , der in fee to his issue male living, at his death, and in default of such issue male then living, executory devise to Hyder for life, with remainder in fee to his issue male, &c.; a grandson of Frederick William, or of Hyder, would have taken along with a son, and a grandson through a daughter would have answered the description as well as one through a son, if a contrary intention did not appear. No aid would be received by the defendant from this view.

If the issue male of Frederick William or Hyder were intended to take as heirs per formam'doni, then the estate limited to their ancestors must have been a fee-tail or a fee-conditional at the common law. No fee-tail could ever have been created in this State. If a testator has used the words most apposite elsewhere for creating one, he has here only done what the common law before the enactment of the Statute de donis, permitted : that is he has created a fee conditional: and no other intention can be imputed to him.

If the will can be supposed to have given a fee conditional to Frederick William and his heirs male, and upon failure of his heirs male to Hyder, &c., the succession in the first instance would have been to Frederick William’s issue male in the strict male line, — males through males. But it must be remembered that there can be'no remainder after á fee, nor any executory devise upon the contingency of a general failure of issue male. The consequence would have' been that neither Hyder nor Allen’s issue would have taken any thing by the will: — upon Frederick William’s death without leaving issue male, the possibility of reverter, which remained in the grantor of the fee conditional, would have become an estate in the testator's heirs general: neither of the parties now before the Court would be entitled to all of the lands in question, but the defendant in this case, for defect'of the plaintiff’s title, would prevail.

If, by a proper construction of the will, it should appear that there was a fee conditional in Frederick William and his heirs male, subject to the contingency of a failure of his heirs male at his death, (and according to opinions held by at least four members of the Court of Errors in Buist vs. Dawes, 4 Rich. Eq. 496, it should be resolved, that upon such a contingency there might be a limitation upon a fee conditional, as there' may be upon a fee simple,) then upon Frederick William’s death, the estate passed in fee conditional to Iiyder and his heirs male, and upon Hyder’s death, without issue male through males then living, it passed to the person designated in the limitation, to Allen’s issue, if that limitation was good.

If an estate in fee conditional was given to Frederick William, he might have aliened or encumbered the lands even before the birth of a son, and his alienation or incumbrance woujd have been effective during the continuance of his issue male through males subsequently born ; his alienation, made after the birth of a son, would have' forever barred his issue male ; and, if any such issue had been living at his death, the alienation would have been indefeasible by an executory devise made to depend upon the contingency of his dying without issue male Jiving at his death. The same may be said of Hyder’s power over the estate, if afee conditional had devolved upon him after Frederick William’s death without issue then living.

The case with which, upon very probable occurrences, intentions favorable to the issue might have .been defeated, detracts much from the argument of a desire to keep the lands in the hands of descendants who bore the testator’s name, which has been drawn from the supposition of his intention to create a fee conditional: but this supposition gives to issue male the interpretation which the terms always receive when they are used as words of limitation, that is, males through males.

It is not, however, admissible for us to make this supposition. In England, a devise such as the one before us, would probably be held to create successive estates tail: for there the estate tail is a particular estate, which will support a remainder, and to promote the apparent intention in favor of issue, when a limitation is made in default of issue, an estate tail is frequently implied, notwithstanding express words defining a fee simple. But nothing on this subject is with us (more clearly settled, than that a fee conditional will not be implied, without necessity, or in opposition to expression, if it will be implied at all : and that in cases like this, a fee simple, subject to defeasance upon contingency, shall subsist as expressed, because more likely to effect the intention than a fee conditional. This being so, it is conceded that here were fees simple mounted on fees simple. How then can we say that .the intention was not to create a fee simple, but first assuming that there was an intention to create a fee conditional, contrary to what' we decide, argue from that assumed intention the meaning of a word employed in a contingency annexed to what we hold to be a fee simple? It would not do to conjecture, or what is the same thing, from extrinsic testimony to establish an intention consistent with our decision, and thence infer a meaning different from the natural sense of words employed. Much less can we conjecture an intention, thence infer a meaning, and then reject the intention. This is not the same as taking the exposition of a word from a part" of the will which is inoperative for any other purpose, as from a vain attempt to create a perpetuity. In making such an attempt the testator might give an explanation of a word used in another part of the will, which explanation might, in the construction of the will as a whole, avail to control the natural meaning of the word. There the intention would be frustrated, but the explanation would stand independent of it. But here, to derive any aid from the supposition of a fee conditional, an intention to create such a fee must be imputed to the testator, — the meaning of issue male be taken as if those terms had been used in the limitation of a fee conditional, and then that meaning be carried to the interpretation of the contingency, when it is acknowledged that the intention was to create a fee simple subject to a contingency.

Issue male used in the part of the clause immediately under consideration, (“ and in case the said Hyder Ally Davie shall die without issue male living at the time of his death,”) defined no persons or class that were to take by inheritance, but designated persons, of whom the non-existence of any at a particular time, should defeat the fee simple before given to Hyder. The primary and natural meaning of the terms is just as applicable as it would have been in case of an estate given to issue male as purchasers. Hyder’s estate, transmissible at his death if the contingency did not happen, was in fee, as Frederick William’s had been. If Frederick William had left a son living at his death, an alienation by himself, or a forced sale by creditors, would have been indefeasible: he might by his will have given the whole estate to a daughter or to a stranger: in case of his dying intestate, leaving the one son, nine daughters, a grandson through a predeceased daughter, and a granddaughter through a predeceased son, it is conceded that the estate wmuld have been divided into twelve parts, and one assigned to each of these his heirs ; or if he had left a son and a widow, the mother of that son, and the son had immediately afterwards died, it is conceded that the whole estate would have passed to the widow. All this, which has been said of Frederick William’s estate, wmuld have been also equally applicable to Hyder’s, if Frederick William dying without issue had been survived by Hyder, and Hyder’s estate was subject to no contingency besides that of his dying without leaving issue male living at his death. There was another contingency, of which we will speak hereafter, but that has not happened yet, if Hyder’s grandsons now living are his issue male, and cannot now affect a fee simple transmitted by Hyder, whatever may hereafter in certain events be its influence. If Hyder had left a son, the estate might, by force of his acts, have passed out of the family of General Davie’s descendants, at least until the happening of the last-mentioned contingency, and until then, if not otherwise disposed of, would have descended to his heirs general. If under the prescribed contingencies the lands should have come to any descendant of Allen, that person would have had an absolute estate' in fee, might have sold or devised at pleasure, and dying would have been succeeded by heirs female no less than by heirs male.

The disposition which the testator made, raised so many chances of defeating any wish to keep the lands in the hands of those who bore his name, or even in the hands of his male descendants, that no such wish can plainly appear from what he has done. He chose to give his lands to his sons rather than to his daughters. To answer why, is much more difficult than to ask why he took his sons in succession rather than in common; why he preferred the third to the others; and why he gave to the descendants of Allen rather than to Allen himself. He did with his own as he pleased. We can know his motives and purposes only from his expressions. He gave estates in fee simple by words too plain for interpretation: he made them subject to contingencies, and in those contingencies occur the terms issue male. There is in the condition of his family and surrounding circumstances nothing to control the natural meaning of these terms, or to show a meaning inconsistent with the natural -meaning, and consistent with every state of events that may be imagined to have occurred. This will then must receive a construction according to established rules, such as another will in like words, controlled by no surrounding circumstances, would receive. We must not allow conjecture and plausible imputation of motive, to serve in lieu of explanation. If we do, there will be no safety in relying upon principles or precedents in the construction of wills, but the opinion of the Court must be invoked, to settle, not what a testator has written, but what a fertile invention may suggest he most probably intended to write.

Second. We will now, confining ourselves to the context apart from all extrinsic circumstances, examine the other parts of the clause recited in the beginning,' which have been sup-supposed to contain indications of intention explanatory of the sense in which the terms issue male were used.

. It is said that there is a difference between the contingencies to which Frederick William’s fee simple was made subject, and those to which Hyder’s were make subject; that in the contingencies first provided as to both, the terms male issue mean only issue in the first degree — sons ; that in the subsequent contingencies more remote issue- is designated by the phrase issue male of issue male: and that from this it appears, that unless Hyder left a son or issue male through an unbroken line of males, his estate has been defeated. ■ '

Turn to the clause. There are four contingencies after the direct devise of a fee simple to Frederick William: first, Frederick William’s death without male issue then living, upon the happening of which the fee shall pass to Hyder. Second, Hyder’s death without male issue then living, upon the happening of which it shall pass to certain male issue of Allen. Third, (recurring to Frederick William) the death of male issue which Frederick William might have, without issue male living at the time of Ms death, upon the happening of which the estate shall pas's to Hyder. Fourth, (recurring to Hyder) the death of issue male which Hyder may have left living at Ms death, without such issue male leaving issue male living at Ms death, upon the happening of which, the estate shall pass to certain issue male of Allen.

Our inquiry now relates directly to the second contingency, and if it be true that) in that issue male means son, Hyder’s estate has been defeated, for he left no son. Whilst urging this meaning, the defendant seems, however, to admit that if Hyder had left a grandson, the son of a predeceased son, the contingency would not have happened drawing an argument from the first and third contingencies, he.strives for the conelusion that in the second, issue male means issue male through males. It is important to observe that the first contingency which is in respect to Frederick William, is in words identical with -the second, which is in respect to Hyder, and that issue male must have the same meaning in both.

If the first had been the only contingency that related to Frederick William, and Frederick William had left at his death no son, but had left the son of a son, can any one believe that the intention of the testator would have been promoted by restricting the natural meaning of issue male to the narrow sense of son of sons, so as in that case to have defeated Frederick William’s fee ? This incredible result of the first contingency, under the construction which confines the sense of male issue there used to immediate descendants, it is said is prevented by the third contingency: it is supposed that that third can serve no other purpose, and that its introduction shows the propriety of this construction. The first contingency thus construed is, if he should die without a son living at his death. The third construed is, if he should Have a son, and such son should die ■without issue male living at his [F. W’s) death, then F. W’s estate shall be defeated. But under neither of these contingencies thus construed would the estate of Frederick William have been without implication saved from defeat, in the case of a deceased son’s son left living at F, W’s death. The corollary to the third, it is said, however is, if such son shall not die without issue male the estate shall not be defeated. The third contingency then is not an additional contingency, upon the happening of which there may be defeasance ; but it is an enlargement of the bar as it has been phrased, an exception to to the general rule — without a son — contained in the first; an exception, which, according to its letter, is a partial re-affirmation, not an exception, but which acquires restrictive effect by inference : — an exception, the need of which has been produced by changing the natural sense of the terms in which the rule was expressed. Suppose that a son dying in Frederick William’s lifetime should have left a grandson in the strict male line, would that case have come within the exception, so that the estate would have been saved from defeasance? Those say it would, who contend that issue male in the first and second contingencies means only immediate descendants. The same words, issue male, used in the same member of the sentence containing the third contingency, (“ such issue male * * die without issue male,”) must thén have two meanings. Much more reasonable than all this, it is to suppose that the testator whenever he used the words issue male and son, (and he used both of them in every one of the four contingencies,) knew the difference of meaning betweeen them, and attributed to each its proper meaning. If he did mean to include all generations under issue, then whether by male he meant only to designate the sex, or meant also to require descent from the ancestor wholly through males, any issue male left by Frederick William living at his death, would have prevented the happening of either the first or the third contingency, according to the construction which makes his in the third refer to Frederick William. Without issue male necessarily includes without issue male of issue male, under either sense of male applied to issue, if the latter be uniformly used to denote all descendants. Was, then, the third contingency a mere repetition in part of the first ? Was all the labored.phraseology (“then and in that case * * under the same limitations, and on the same contingencies, and in the same order and manner, as above, directed and devised, [in case] my son Frederick William should die without any issue male living at the time of his death,”) mere idle tautology, which provided the same, result for the second case as had already been provided for the first, when the first included the second ? No. Plainly there was an intention to provide for a new case: — to add another contingency, upon the happening of which the estate might be defeated. It would be preposterous to suppose that the new case was the death of an individual of issue male without leaving issue male, although other individuals of issue male may-have been subsequently born in Frederick William’s lifetime and have been living at his death.

To see the purpose of the third contingency we must refer to the fourth. That plainly provides for the case of issue male, which Hyder may have left living at his death, dying after-wards without leaving issue male: — not a general failure of issue male subsequently, but a failure of the issue male of particular individuals left by Hyder living at his death. In that fourth contingency the pronoun Ms refers to Hyder’s issue male, as in both the second and fourth it does to Allen’s issue male. Any individual answering the description, indefinitely in the singular number, suits the expression and the intention. It is as if the testator had written, and should my son Hyder have a male descendant living at his death, and’ such male descendant should die without leaving issue male living at his death, then * * to the eldest male descendant of Allen * * to him his heirs and assigns forever.” The difference between the third and fourth contingencies is that the fourth, in reference to issue male had by Hyder, uses the words living at Ms death, which words are not in the third in reference to issue male had by Frederick William. These are often very potent words. Here the use of them in one place, and omission of them in another, is said to show an intention to make a distinction : upon this is based the argument of a difference made between the estates and powers of Frederick William and of Hyder ; and from that is deduced a narrow sense of issue male, in the first and second contingencies. But the same meaning may be conveyed under various expressions. Words in themselves highly significant may be superfluously used in one place, or their omission in another may be supplied by the context. If his used in the third contingency (“ and such issue male of my son Frederick William should or shall die without issue male living at the time of Ms death,”) refers not to Frederick William but to issue male, the third and fourth contingencies, in relation to the two sons Frederick William and Hyder respectively, become the same in effect, notwithstanding words in one which are not in the other. Grammatical propriety requires the reference of the pronoun to the next preceding noun that is suitable; and we have seen that the testator considered issue male as suitable for this reference both before and after the third contingency. We have seen also that without this reference a long provision is useless, if the proper meaning be given to its terms: — that this uselessness, occasioned by the other reference, .can be obviated only by giving different meanings to the same terms repeated in close juxtaposition; and that this change of meaning leads to results manifestly contrary to the testator’s intention, which are saved only by inference beyond the expression, and makes the whole contingency a bungling expedient to restrict the operation of a former one. We think that the reasons for referring his to issue male rather than to Frederick William, outweigh the force of the difference made by the words “ living at his deathand that these words avail no more to make a difference of meaning between the third and fourth contingencies, than does the difference between “ to him and his heirs forever,” applied to Frederick William and Hyder, and to him, his heirs and assigns forever,” once applied to the male issue of Allen, avail to make a difference between the fees simple limited to all threp. But if his refers to Frederick William, the result is only that the third contingency is useless, betokening some accidental confusion in the mind of the testator. To admit this may be consistent with his expressions: but for avoiding it, to give a peculiar meaning to his terms here, and the ordinary meaning there, is taking a liberty, not authorised by any necessity which the occasion raises.

The contingencies in respect to Frederick William and Hyder being held similar, it follows that, as to each, the defeasibility of his estate was designed to continue for some time after his death. It follows further, that the answer is insufficient which, from the third contingency, was hy inference given to the incredible result, of Frederick William’s estate being defeated if he left the son of a deceased son, that must come from a construction which confines the meaning of issue male as used in the first contingency, to immediate descendants. That answer is undeniably unsuitable to Hyder’s case, there being no doubt that, in the fourth contingency, Ms refers to issue male, and not to Hyder. Under the supposition that issue-male means, in the first and second contingencies, immediate descendants — sons—the contingencies as to Hyder would be, first, if he should die without a son living at his death ; second, if a son left by him should die without issue male. A son of a deceased son, living at Hyder’s death, would not prevent the defeasance, although any male descendant of a son that died after Hyder’s death would.

It has been urged that this will would be sensible, and the intention of the testator would be met, if, throughout the clause concerning the lands, son was substituted for issue male. As events have turned out, it would suit the defendant to make the substitution. But it may be remarked, that the substitution of male descendant would be equally easy, and, so far as we can perceive, equally consistent with the intention of the testator: and further, that without suitable variations, by the addition of any and every, either substitute might have produced strange results; and that, in various cases not unlikely to have occurred, son, excluding all but the first generation,'might have defeated what was probably intended. Our business, however, is not to substitute words, but to ascertain the 'meaning of those which-the testator used: and not to adapt the will to events that have occurred, but to try its meaning according to events as they might have occurred.

■We conclude that no distinction, except in the order of succession, was made between Frederick William and Hyder; that the additional contingency introduced as to Frederick William is not purposeless without altering the natural meaning of its terms ; and that, whether it is or not, there is no necessity for inferring, from anything yet considered, that any peculiar meaning was given, in any part of the clause, to the terms issue male.

Third. This brings us to consider the limitations to the issue male of Allen, upon which the defendant has built much argument.

It is not our duty now to decide whether the limitations over in the third and fourth contingencies were too remote or not; nor to decide who answered the description of Allen’s issue male in the second and fourth ; nor how, in various events that may be imagined, the selection of the eldest should have been made. But we admit that the second contingency is valid, although the fourth may not be : and that explanation of the meaning of terms elsewhere used might be given in making a void limitation. And we see the necessity of inquiring into the intention of the third and fourth contingencies, if we would ascertain any reflex influence which they have upon the second, now immediately important. In considering the third and fourth, as no positive resolution will be attained upon the questions just reserved, the views of the defendant, upon every disputed point involved in them, must be taken to be correct, and their effect upon the testator’s meaning, when he used issue male in the second, be examined.

The fourth contingency is the failure of issue male of issue male left by Hyder — the death of unborn issue of unborn issue. This is too remote,' unless the limitation depending thereon is required to take effect necessarily, if at all, within the prescribed time — that is, within a life or lives in being, and twenty-one years, a child in ventre sa mere being considered a life in being. The testator was careful in both the second and fourth contingencies, when he referred to Allen’s issue, to add: “ of the sons he may have living at my death.” Who might, at the happening of the contingencies, be the eldest of those sons, could not be known before the happening, and so no vested transmissible interest would have been in any of them : and thus, it is said, the limitation must have taken effect, if at all, within a life in being.

. This presupposes that the limitation was confined to a son of Allen’s living at the testator’s death. This postulate is subject to remark. According to it, the death of Allen’s described sons, all leaving sons, before Hyder’s death, would have made the i estate, once vested in Hyder, indefeasible, although Hyder may have died without any issue . Again, the words are not, To the eldest that may he then living of the sons that my son Allen may have living, at my death; nor are they To the eldest issue male of my son Allen then living, that is, the eldest of the sons he may have living at my death ; but they are (in the second contingency) to the eldest issue male of my son Allen then living, that is, of the sons he may have living at my deathand (in the fourth) to the eldest issue male then living of my son Allen, being of his sons living at my death;” as if (making “of” serve to show the detached points which were connected by explanation) it had been written : To the eldest issue male of my son Allen then living, that is, the eldest issue male of the sons he may have living at my death ; or, eldest issue male then living, of my son Allen, being issue male of his sons living at my death. So the limitation may have been, not to the sons, but only to their issue male, in expectation of its taking effect, if at all, at a remote period. The intention may, however, have been not to confine the devise either to Allen’s sons or to their issue male, but to extend it to both. “ Of the sons” may have been an ill-chosen mode of expressing through the sons, in the lines of the sons, or some other such phrase as would include the sons and their issue male. The testator’s remembrance of the utmost limit of the rule against perpetuities, no doubt suggested his restriction of the sons of Allen to those that might be living at his own death ; and he probably thought it safe to rely upon the chance of one of Allen’s young sons being alive, when the unwished for contingency of the failures of Frederick William’s and Hyder’s issue male might happen. But in the famous will of Peter Thellusson, the period of accumulation was extended to the death of the survivor of many persons, amongst whom were “ such issue as such sons (unborn) may have, as shall he living at the time of my death” (Thellusson vs. Woodford, 4 Ves. 231); and here this testator, looking to the remote period at which his ultimate limitation was expected to take effect, if at all, and noticing the limit of time prescribed by reference to a living person, wdiose issue left at his death would necessarily be known at his death, may have used words that extend the limitation over to issue male of Allen’s sons, — in inattention to the possibility that issue male left by Iiyder, even a son of an unborn son of Hyder, might have lived more than twenty-one years after the expiration of any life in being, and yet issue male— even a son — of one of Allen’s sons be living too.

Let it however be conceded, that the ultimate'limitation was, to the person who, at the happening of the contingency, might be the eldest of the sons of Allen that were alive at the testator’s death. It is said that “ that is, of the sons,” gives the testator’s definition of issue male. On the contrary, it expressly confines the terms to a narrow sense in that place, showing an understanding that, without restriction, they would have meant more there, as they had done in other places where there was no restriction. Suppose there had been various devises to grand-children, and then one to my grand-children, the children of Allen, that is, his sons now living, could it have been inferred that, in the other devises,- the testator by grand-children meant only males. (See Dalzell vs. Welch, 2 Sim. 319.)

It has been argued, however, that, if the testator did not define the sense in which he uniformly used the terms issue male, he, by introducing words which restricted these terms to some of Allen’s sons, showed his conception that, without restriction, they would have embraced sons only. He clearly showed his conception that, without restriction, all sons would have been embraced, but not that sons only would have been. It is as if he had said, By issue male I here mean sons living ; what he meant elsewhere wrnuld remain to be determined by the natural meaning of the words, if they were unexplained. By restriction -to particular sons, he excluded grandsons through daughters, — but he also excluded grandsons through sons, and excluded other sons too. The restriction gives no aid in settling the sense which he ascribed to the terms when he used them without restriction. The defendant says, of course the testator thought of issue male as coming necessarily through sons, else why did he limit to some of the sons? The answer is, he knew that issue male embraced all male descendants, and therefore, for a special purpose, he limited-the signification in one place to sons, and some only of them.

Fourth. A further attempt to deduce an explanation favorable to the defendant has been rested upon the peculiar form of the contingency, at the happening of which the ultimate limitation over was to take effect. It is the death, without issue male of issue male left by Hyder living at his death. Hyder may at his death have left a son and a daughter; the son may afterwards have died leaving a daughter, and the daughter may have died leaving a son, and yet the contingency have happened. The issue male born of Hyder’s daughter; Mrs. Bedon, after his death, could not have saved the estate from defeasance under the fourth contingency; why should such issue, born before his death, save under the second? Failure of issue male at Hyder’s death is the second; failure of issue male at a subsequent period is the fourth: ought not the same meaning of the terms to be given at both periods ? When the testator, contemplating a failure after Hyder’s death, shows that, in his opinion, it has occurred, unless there is issue male descended from issue male, does he not show that the same state of circumstances at Hyder’s death would have produced the same result ? When he limits over upon issue male dying without issue male, does he not exhibit his understanding that issue male could come only through issue male ?

Under the admissions that have been made, it cannot be denied that after Hyder’s death, the' estate in fee which had been devised to him, was made defeasible, not by a general failure of his issue male, but by a more probable event, the failure of his issue male descended from the issue male that he left living at his death. His issue male is individualized, and in the fourth contingency just as he himself stood in the second. Any one of his issue male, the survivor of them if he left several, is thus indicated. A new progenitor, or stock, is spoken of: but of the new stock, (say a son of Hyder, or a grandson through a male, or a grandson-through a female,) the same issue is required that before was required of Hyder: — and unless the change of stock defines issue male to be male through males, it does not appear that a male descendant of the new stock through a female would not have answered the requisition as well in the fourth-contingency as in the second. The change of stock, an increase after Hyder’s death of the probability of defeasance, was an act within the testator’s discretion, to be understood as he expressed it, if he has given no contrary exposition of his meaning. If we indulge ourselves in speculating about'the reasons of the change — it may have proceeded from natural affection entertained by the testator for each of his sons, and a willingness after the death of one to make great the chance of the succession devolving upon another or the family *of another, rather than remaining in distant descendants of the deceased.

The case contemplated by the testator in the fourth contingency was this, — that the estate “ should have vested under the above contingencies in such issue male” — the new stock. This vesting is perhaps an indispensable condition, so that to cases of sale by Hyder the defeasance under the fourth contingency could not have applied. The estate was a fee-simple— it could have vested in Hyder’s issue male only by descent from him, or by devise or other conveyance made by him. If by descent, 'there could have been no issue female, in a degree equally close to him, to share the inheritance: if by devise or conveyance, Hyder would have chosen his representative: — ■ and in either case, upon failure of the male descendants of the representatives, within the prescribed time, the testator seems to have conferred the succession upon one of Allen’s issue male, rather than, upon the female descendants of the representative, or the male descendants of Hyder born after his death. Neither any child of the representative, nor any after born male descendant of Hyder through a female, could have been nearer to the testator than a great-grand child. To such a one, succeeding to Hyder or chosen by Hyder’s act in his lifetime, the testator may have been willing to extend favor which would have been denied to him when he presented himself as a new claimant of rights that had already been once in his family defeated by failure. But all this is mere conjecture. What do the words mean ?

Under our construction the third contingency is like the fourth. The third contains nothing about vesting, except by inference drawn from the fourth. It is in effect that if Frederick William’s issue male living at his death should die without issue male, the estate shall go to Hydei or to Allen’s issue male according to events. The defendant has a right to say that as it would have been under the third, so should it be under the fourth contingency, and accordingly should be the explanation of the second. There is some more difficulty in taking a view which will save the third from the imputation of remoteness, than there was jn respect to the fourth; for the interest given to Hyder was transmissible, and the circumstance of the limitation being to him, a person in esse, was of no avail when the event might not have happened within the prescribed - time. Suppose however that the estate limited to Hyder, whether transmitted or not, was subject to the contingent limitation which was made to the person, who might, at the happening of the final event, be the eldest of the sons of Allen ■ that were living at the testator’s death. Suppose further that Frederick William had sold the estate, and had died leaving issue male:&emdash;that afterwards, in the lifetime of Allen’s son, such issue male of Frederick William had died, without issue male, but that other issue male of Frederick William, born after his death through females, survived&emdash;and that the fee devised to Frederick William, and sold by him, had thus been defeated. We would see that the testator had made the contingency after Frederick William’s death, different from what it was in his lifetime: in the life requiring issue male, after death requiring his issue male from particular issue male,&emdash;or, in other words, substituting the issue male after Frederick William’s death for himself in his lifetime. This would have exhibited anxiety to regulate the succession as far as possible, and to insist upon the exclusion of females. But it must be remembered, and cannot be too often called to mind in the construction of this will, that nothing was given to the issue of Frederick William or of Hyder:&emdash;that in the contingencies depending upon the existence of issue, issue male excludes females as well as issue male through males would do: and that when we ask, why did the testator do this ? why did he not do that ? and, from the supposed improbability of the intention, expressed by his words, infer a peculiar meaning, we are making our conjectures'limit the range of a capricious power which a testator has in disposing of his own. The testator might have made the second contingency depend upon the failure of males through- males, or the fourth depend upon a general failure of Hyder’s male descendants: he has done neither: we must not distort his words to effect a congruity between the contingency before Hyder’s death and that 'after, when perhaps he looked to the con-' gruity between Hyder and the male representative that he left.

The careful consideration which we hav¿ given to this will induces occasional suspicion that the testator had some undefined notion of an estate being limited to his sons and their issue male: — but when once we have got over this by the conclusion, which our cases will not permit us to doubt about, that he gave fees simple defeasible on contingency; and have ascertained the plain natural meaning of issue male, there is nothing in the will or in the circumstances that attended its making which shakes our confidence in adhering to that meaning.

Eirth. The numerous cases that have been cited show little more than instances of explanation given by testators to the words they used, which here we have sought in vain. Hurlbut vs. Emerson, in conformity with established rule, decides that issue male when used as words of limitation, mean issue male through males. The implication there made cannot be made here.

Oddie vs. Woodford, (decided by Lord Eldon after great hesitation, and expressions of distrust in his opinion, almost ludicrous,) turned at last in the House of Lords upon the term “lineal” constantly used in the phrase male lineal descendants wherever, male descendants were mentioned in Thellusson’s will; which term was useless if it did not serve to indicate the male line: and that it was so intended appeared from the testator’s having expressed the failure of estates tail male by the words “ upon failure of male lineal descendants of my said three sons.”

In Bernal vs. Bernal, I have not been able to perceive the force of what the Lord Chancellor Cottenham said about the gift being in the nature of an inheritance, and about a male descendant not being one of the class of male descendants although he was in the general class of descendants and was male. But I perceive that the case was decided by indications of intention appearing in clauses of a will, which provided a permanent fund, whose proceeds should be distributed as a bounty amongst collateral relations named, — “ women and their children, men and the male children of the said men.” . Children was (from the permanent nature of the fund, and the lapse of more than a century between its creation and the contest concerning the distribution of its dividends, which the case involved) necessarily construed as descendants: but if the daughter of the “ favorite nephew ” could not share the bounty in her distress, why should the son of another nephew’s daughter ? The case is said to have been in its circumstances exceedingly singular; and although the influence of either Jewish law or'Dutch law is disavowed, it is hard to divest one’s-self of the impression that Jewish customs and laws of genealogy had some weight under the testator’s reference to “the race of my father.” It is enough that there an exposition was found which controlled the natural meaning of male descendants.

We have found in the case before us nothing sufficient to establish a special sense given by the testator to the, words issue male in that part of the clause of his will, which is immediately decisive of the rights of these parties. The natural meaning must then prevail: and according to .that Hyder Ally Davie left issue male living at his death. His fee has been transmitted to the plaintiffs, and to them the postea was properly delivered.

Motion dismissed.

Dunkin, Dargan and Wardlaw, CC., and O’Neall, Glover and Murro, JJ., concurred.

Johnston, C., and Withers, and Whitner, JJ., dissented.

Motion dismissed. 
      
       Co. Litt. 25; 2 Jarm. on Wills. 9.
     
      
       2 Jarm. 742, and cases cited.
     
      
       1 Jarm, on Wills. 358.
     
      
      
        Chichester vs. Ozenden, 3 Taunt, 147.
     
      
      а) 2 Jarm. 34.
     
      
      
        Adams vs. Chaplin, 1 Hill Ch. 280; Edwards vs. Barksdale, 2 Hill, Ch. 198; Bedon vs. Bedon, 2 Bail, 246; Buist vs. Dawes, 4 Rich. Eq. 423, 501; Mazyek vs. Vanderhorst, Bail. Eq. 48; Deas vs. Horry, 2 Hill, 246.
     
      
       1 Sull. Lect. 285.
     
      
       2 Blackst. Com. 111.
     
      
      
         Carr vs. Porter, 1 McC. Ch. 78; Cases supra.
      
     
      
       1 Jarm. 783.
     
      
       8 Rich. 309.
     
      
       16 Mass. 240.
     
      
       3 Mylne, and Craig, 627.
     
      
       3 Mylne, and Craig, 582.
     