
    Francis A. Parish’s Heirs v. Eliphalet Ferris and others.
    "Where.there is a devise in fee to A, but if he “ die without heirs,” or “without children," or “ without issue,” then to B in fee, the words “ if he die without issue,” or words of similar import, are to be interpreted according to their popular and natural meaning, and as referring to the time of the death of A, unless the contrary intention is plainly expressed in the will, or is necessary to carry out its undoubted purposes; and if A have no children or issue living at the time he dies, B takes under such devise.
    
      Action to quiet title. Reserved in the district court of Hamilton ■county.
    The petition is filed under the code, by the heirs of Francis A. Parish, against the brothers and sisters of Andrew Ferris, to quiet title. The defendants, by counter-claim, allege that they are the owners of the land in controversy.
    The ease depends upon the construction of the will of Andrew Ferris. The facts ai-e briefly these:
    * Andrew Ferris having an only daughter unmarried, on 7th [564 June, 1849, made his will, and thereby devised as follows, to wit:
    
      “Second. I give to my daughter, Elizabeth A., the use of the two hundred acres, more or less, of land on which I now live (and then described it) ; also, sixty-seven acres, more or less, in section No. 21 (of the same township as the above, describing it), during her natural lifetime. To have full use and control of the same, with the appurtenances to the same belonging, as long as she shall live.
    
      “Third. I give and bequeath to my daughter Elizabeth’s children (if she shall have any heirs), their heirs and assigns forever, all the above described two hundred and sixty-.seven acres of land, after Elizabeth is done using or occupying it, and at Elizabeth’s death.
    
      “Fourth. If my daughter, Elizabeth A., shall die without children, then and in that case, 1 give and bequeath the said two hundred and sixty-seven acres of land (above described) to my brothers and sisters, their heirs and assigns forever, after the death of Elizabeth A., as aforesaid.”
    In 1850, after the death of her father, Elizabeth A. Ferris married Francis A. Parish.
    On 17th August, 1852, Elizabeth A. Parish, wife of Francis A. Parish, was delivered of a- child, that lived only about one hour.
    On 22d August, 1852, she made her will, devising- to her husband, Francis A. Parish, his heirs and assigns forever, all her property, and soon after died, leaving no child or children surviving her.
    Andrew Ferris left brothers and sisters, who survived his daughter.
    Francis A. Parish survived his wife, and has since died, leaving the plaintiffs, his brothers and sisters, his heir at law.
    *Worthington & Matthews, for the plaintiffs,
    made the fol- [565 lowing points:
    
      I. Upon the death of the child of Francis A. and Elizabeth A. Parish, its estate derived under the will of its grandfather, Andrew Ferris deceased, vested in its mother. Swan’s Statutes, 1841, p. 286, sec. 1, p. 4.
    II. Every testator must be held to know what the law allows and forbids, in his testamentary dispositions, and the legal effect of the language used by him. 15 Ohio, 561; 17 Ib. 180; 1 Doug. 341; 11 Wend. 295; 2 Jarman on Wills, 526, rule 16.
    III. When a will is of doubtful construction, the heir at law is always favored. 19 Ohio, 333; 2 Jarman on Wills, 525, rule 5; 1 Ib. 431.
    IY. The words 11 heir or heirs” in a will, may be construed from the context as “ child or children,” if such be the clear intent, and they take as purchasers. 3 Ohio St. 369; 15 Ohio, 559; 19 Barb. 500; 26 Wend. 18; 12 Wend. 84, 92; 3 Ib. 521, 524, 513; 19 Conn. 107; 5 Barn. & Cress. 866; 3 Term, 281; 6 Taunton, 94; 2 Thomas Coke, 129, note e; 2 Cruise Dig. 273; 6 Ib. 209, 203.
    Y. Children, in its primary sense, is a word of purchase, and not of limitation. Heirs, issue, son, etc., are generally words of limitation, but they are all words of purchase or limitation, as indicated by the context or subjectmatter. 15 Ohio, 59; 3 Denio, 490; 1 Sumner, 235; 4 Comstock, 263; 10 Barbour, 393, 395; 10 Met. 502; 6 Coke, 17; Wild’s case; 2 Bos. & Pull. 492; 4 Barn. & Ald. 43; 2 Jarman on Wills, 69, 328.
    VI. Children, in its primary sense, does not include grandchildren, nor any of a degree more remote than children, while doscend586] ants means issue of every degree, and *issue means descendants of every degree. 5 Barbour Ch. 488; 7 Paige, 328; 3 Jarman on Wills, 32, 33, 70.
    YII. The law favors the vesting of estates, that is, the property will vest when the instrument takes effect, or so soon as the taker comes into existence, or contingency.happens upon which the estate is to vest. 1 Jarman on Wills, 726; 3 Term, 494; 21 Pick. 311, 314; 4 Pick. 198; 23 Pick. 468, 469; 5 Mass. 535, 537; 25 Wend. 119, 137; 7 Met. 171; 8 Barn. & C. 231; 17 Eng. L. & E. 13, on vesting.
    Till. A remainder is a vested interest in lands, where the person is in being and ascertained, who will, if he lives, have an absolute and immediate right to the possession upon the termination of the precedent estate, provided the estate limited to him shall so long continue. 5 Paige, 466; 2 Thomas Coke, 127, note d; 2 Cruise Dig. 262, 264, 273; 4 Kent Com. 202.
    IX. A vested remainder is an estate in lands, limited on a particular estate, that comes into possession ujion the termination of the particular estate. It is a present interest vested, to come into possession at a future day upon the happening of a certain event.
    A contingent remainder is an estate in lands limited upon a contingency, and does not vest until it happens; and when it does happen, the remainder becomes vested, and ceases to be contingent. It vests before or at the end of the particular estate upon which it is limited. 11 Wend. 268; 2 Thomas Coke, 127, note d, 128, note e; 2 Cruise Dig. 262, 264, 273; Fearne on Remainders, 1-6; 2 Black. Com. 162, 168, 169; 4 Kent Com. 202, 206.
    X. An estate in lands given when or after an event happens, is not contingent, but vested ; but an estate in lands given upon condition, or if until, provided, etc., an event ^happens, is generally . [567 contingent, and does not vest until it happens, but when it happens it ceases to bo contingent, and becomes vested. See application in points 15 and 16. 11 Wend. 268; 4 Sanford, 36; 2 Comstock, 436— the words were “ in case;” 3 Term, 41; 1 W. Black. 519; 25 Wend. 144; 2 Coke, 128, note e, 131, note e; 2 Cruise Dig. *265, *295, sec. 79-86; Fearne on Remainders *167, et seq.; 4 Kent Com. 205; 1 Jarman on Wills, 620, 624, 625.
    XI. The devise of the use of the land to Elizabeth A., was a devise of the land itself. 26 Wend. 229; 9 Paige, 265; 11 Wend. 298; 2 Johns. 391; 7 Casa, 105.
    XII. All future limitations in wills are held to be contingent remainders, and not executory devises, when consistent with the rules of law as to contingent remainders. 11 Wend. 279; 5 Barn. & Cress. 866; 3 Term, 276, 277, note a; 2 Doug. 729; 5 Met. 134, 148; 4 Met. 190; 23 Pick. 287; 2 Comst. 442; Fearne on Remainders, *296, *999; 2 Cruise Dig. 287, see. 59; 6 Cruise Dig. 475, sec. 6-13; 464, sec. 11; 1 Jarman on Wills, 655.
    XIII. A devise to the three children of T. S. D., provided they Jive to legal age, vests an estate upon the death of the testator, ‘subject to be defeated in the event of death before they arrive at age. 17 Ohio, 259.
    XIY. A devise to A and his heirs, in trust for B for life, and to such sons as she might appoint, and after.her death to the use of her heirs, vests in B a fee simple estate, prior to the will act of 1840. 12 Ohio, 287, 290; 5 Ohio, 464.
    XY. A devise to four sons, or the survivors and their heirs, to be -equally divided when the youngest attains the age of twenty-one, ■568] vests an estate in the sons at the death *of the testator, and 'upon the death of the sons, it passes by descent, and not in remainder. 10 Ohio, 37, 41.
    XYI. A devise limited to take effect after a dying without issue, or without heirs, or on failure of issue, or without leaving issue, is hold to be void, because the contingency is too remote, as it does not take place until after the indefinite failure of issue. But if there be any terms to fix the limit upon the definite failure of issue, it will be good. 4 Comst. 257; 2 Comst. 436; 9 Paige, 269; 26 Wend. 232; 11 Wend. 277; 17 S. & R. 61, 441; 16 Johns. 382, 388, 399, 430; 7 East, 321; 6 Term, 589; 17 Vesey, 479; 2 P. Wms. 390; 1 Doug. 75, 264; 2 Doug. 504; 5 Paige, 512; 25 Wend. 126; 2 Jarman on Wills, 300, 297; 5 Day, 517. This case is, in fact, a limitation over to survivors dying without children, and is like the case in 16 Johns. 382, and others of the same kind; 1 P. Wms. 534. The cases in 1 Johns. 439; 3 Johns, 299; 10 Johns. 12; 11 Johns; 377, are like that in 5 Day, 517.
    XYII. In the construction of wills limiting estates after the failure of issue, etc., the courts lean to any circumstance, however slight, to take the case out of the rule of the indefinite failure of issue. 16 Johns. 382; 11 Johns. 337; 10 Johns. 16; 3 Johns. 189; 1 Johns. 440; 8 Johns. 348; 8 Simons, 4.
    XYIII. The devise to Elizabeth A. vested in her a life estate. 'The devise to her children (if she should have any heirs), their heirs and assigns forever, and if she died without children, then •and in that case, to his brothers and sisters, etc., created alternative remainders, and upon the birth of her child the remainder vested .absolutely in such child and its heirs, subject to- open and let in after born children, but cut off the remainder over to the testator’s 569] ^brothers and sisters. 4 Comst. 257; 2 Comst. 436, 2 Barb. Ch. 314, 320; 26 Wend. 229; 9 Paige, 265; 5 Paige, 512; 3 Wend. 503; 17 S. & R. 441; 12 Gill & Johns. 83; 10 Yerger, 292; 1 Sails, 224; 1 Lord Raymond, 203, 208; 2 Wm. Black. 777; 3 Wilson, 237, 241 246; 1 Doug. 264; 2 Doug. 504, note; 7 East, 521; 5 Barn. & Cress. 866; 15 Con. Eng. Ch. 240; 7 Taunt. 362; 1 Sumner, 243; 7 Cush. 105, 508; 11 Eng. L. & Eq. 60; 30 Eng. L. & Eq. 367; 20 Eng. L. & Eq. 72.
    XIX. The devise to Elizabeth’s children (if she should have any heirs), their heirs and assigns for ever, after Elizabeth is done using ■or occupying it, and at Elizabeth’s death, does not postpone the vesting of the estate in her child or children till her death, but points to the time when possession is to be taken by her child or children. 2 Thos. Coke, 131, note e; Fearne on Remainders, 241; 2 Cruise Dig. *295, secs. 79-86; 1 Jarman on Wills, 620, 624, 625; 3 Term, 41; 2 Johns. Cases, 314; 7 Adolph. & Ellis, 636; 2 Keen, 240; 3 Coke, 19; 14 East, 601; 1 Sumner, 243; 4 Pet. 90; 16 Eng. L. & Eq. 550, is upon a condition precedent, and of course the estate can not vest until after the condition happens.
    XX. In the devise to Elizabeth’s children (should she have any heirs), the word heirs means children. 3 Ohio St. 369; 19 Barb. 500; 15 Ohio, 59; 12 Wend. 83; 3 Wend. 513, 524; 26 Wend. 9; 3 Term, 143; 7 Mees. & Welsby, 293; 1 Doug. 266, 341; 3 Call. 351; 5 Barn. & Cress. 866; 1 Sumner, 241, 244; 2 A. K. Marsh. 465; 19 Conn. 107.
    The testator means to show by the parenthetical clause (“if *she shall have any heirs”), that he then had in his mind [570 the fact that his daughter was a maiden and had no children, and possibly might not have any. Without it, the will would assume, contrary to the fact, that she then had children.
    XXI. “If my daughter Elizabeth A. shall die without children,” means “ shall die without having had children,” and not leaving children surviving her. 7 Cush. 105, 508; 1 Doug. 264; 2 Doug. 504; 7 East, 521; 3 Call. 352; 3 Term, 484; 16 Johns. 382, 399, 26 Wend. 229; 9 Paige, 265; 5 Paige, 512; 5 Russell & Mylne, 416; 2 Comst. 436; 2 Jarman on Wills, 273, 302; 30 Eng. L. & Eq. 267; 20 Eng. L. & Eq, 72.
    XXII. The limitation to Elizabeth’s children and their heirs was a contingent remainder in fee. The limitation over, if she should die without children, was also from necessity a contingent remainder in fee, because there can not be a vested remainder after a limitation in fee, or mounted on a remainder or limitation in fee, inasmuch as a limitation in fee exhausts the entire estate in fee. 4 Comst. 257; 2 Comst. 436; 2 Barb. Ch. 314; 9 Paige, 265; 26 Wend. 229; 7 Cush. 105; 4 Pet. 90; 1 Doug. 264; 2 Doug. 504, note; 1 L. Raym. 203; 2 W. Black. 777; 3 Term, 484; 7 East, 521; 3 Wilson, 237; 1 Keen, 240; 2 Russell & Mylne, 416; Fearne on Remainders, *291, *295; 30 Eng. L. & Eq. 267; 20 Eng. L. & Eq. 72.
    XXIII. All limitations over after a prior limitation, are divisible into three classes:
    1. They are alternative only.
    2. They are in succession only.
    3. They are the one or the other.
    *1 Doug. 75, 77; 2 Doug. 504, note; 2 P. Wms. 390; 4 Kent Com. 200.
    XXIY. The limitation over, 'if Elizabeth die without children, refers not to the failure of the issue or heirs of such children, but the failure of the children of Elizabeth, and can not be extended beyond the words used. It is the failure of her children altogether that casts the estate over, but having had children, the limitation over was cut off. Fearne on Remainders, *295; 2 Jarman on Wills, 170; 7 East, 521; 1 Doug. 264; 3 Term, 484; 5 Paige, 512; 9 Paige, 265; 26 Wend. 229; 10 Yerger, 292; 7 Cush. 105; 1 Keen, 240; 2 Russ. & Mylne, 416.
    XXY. The policy of society is opposed to all restraints upon the alienation of real estate, and hence, prior to the introduction of uses and executory devises, remainders limited upon remote contingencies or possibilities were held void, and since perpetuities have been limited to lives in being, and twenty-one years under uses and devises, but remainders stand upon the old ground of contingencies or possibilities, proximate or remote. 1 Jarm. on Wills, 250; 2 Jarm. on Wills, 515; 15 Pick. 104; 20 Wend. 564; 8 Paige, 104; 3 J. J. Marsh. 91; 26 Wend. 229; 8 Conn. 363; 4 Kent Com. 271.
    XXYI. In the case of Ferris’ will, the limitation over is in ease his daughter should die without children. It will be seen where the limitation over is when a devise is for life, and remainder to children and their heirs, and for default of issue means for default of children, and so construed vests an estate in fee in children. 2 Jarm. on Wills, 267, 297; Fearne on Remainders, *295; 1 Doug. 264; 5 Paige, 512; 26 Wend. 229; 4 Comst. 257; 7 Cush. 105; 30 Eng. L. & E. 267.
    *XXYII. In the case at bar, the testator could not have intended the estate given to the children of his daughter not to vest in interest until her death, but if she had had children, who died in her lifetime having children who survived her, such children ■could not take, yet the testator intends that her children and their heirs shall take the estate in possession at the death of their mother. 3 Term, 484; 11 Eng. L. & E. 60 (see this case); Willes, 348; 1 Doug. 264; 1 Keen, 240; 2 Jarm. on Wills, 270, 273; 30 Eng. L. & E. 267.
    XXVIII. The rule of law as to the definite or indefinite failure of issue, when unexplained by the context, applies alike to real and personal estate. There are two exceptions to this rule: 1. Leaving no issue as to personalty, imports failure of issue at death, but as to realty, a general indefinite failure of issue; 2. "When the testator having no issue devises property in default of issue of himself, imports a failure of issue at death. 2 Jarm. on Wills, 300, 307, 317; 11 Wend. 277.
    XXIX. The failure of issue is restrained to such failure at death as to real estate: 1. "When dying is confined to a definite age; 2. "When there are superadded words showing a restricted sense; 3. "When the subject-matter and the ulterior devise required a restricted sense; 4. "When the ulterior devise confers only a life estate; 5. Overcharging the devise with money to be disposed of by will by the first devisee. 2 Jarm. on Wills, 307, 310-313, 317; 4 Kent Com. 277; 16 Eng. L. & E. 550, 1 category; 2 Mass. 56, 2 category; 5 Day, 534, 2 category; 4 Eng. Ch. 163, 2 category; 7 Paige, 328, 2 category; 14 N. H. 224, 3 category; 4 Conn. 257, 5 category.
    XXX. The phrase, dying without children, is identical with the phrase, dying without issue. They do not either *of them [573 point to the death of the first taker, without superadded words. There is no distinction between them. 2 Jarm. on Wills, 82; 5 Day, 534; 5 Mass. 56; 16 Eng. L. & E. 550; 7 Paige, 328, 332; 4 Eng. Ch. 163. This case turns upon superadded words, “ in case of her death.” 14 N. H. 224. “ To heir her estate,” controls. 1 Denio, 165. “ Without issue at his death,” controls. 4 Barb. 427. “ Leaving at the time of his death,” controls. 2 Jarm. on Wills, 317, relates to personalty, and not realty. 1 Ib. 618, is upon the effect of superadded words explanatory of the intent of the testator. 2 Comstock, 436. The words “in case ” are superadded, and point to “ after death.” 2 Jarm. on Wills, 82. The case of Thicknosse v. Eeige has superadded explanatory words.
    
      Taft, Key & Perry, and George R. Sage (with whom were Mal
      Ion, and James & Jackson, and Johnson & Garroll), of counsel for the defendants,
    made the following points :
    I. Thai, where a testator devised to his daughter a life estate in land, and after her death the fee to her children (if she should j’ have any heirs); and if she should die without children, then 10 the testator’s brothers and sisters and their heirs, the intent of the testator must prevail.
    II. That by such a devise the testator intended that the event on which the fee should go over to his brothers and sisters should be, not the indefinite failure of the issue of his daughter, but hex* death without children or descendants, living at her death.
    
    1. We insist that the additional words and circumstances of this will, beside the phrase “ die without childx'en,” are sufficient to fix the death of Elizabeth as the time when the executoxy estate was to commence, and that if she had no childx'en then, the estate went 574] over to the brothers and sisters of the testator. Croke (James 1.), 590; 1 Br. Ch. 190; Porter v. Bradley, 3 Term, 143; Doe v. Webber, 4 E. C. L. 738; Pinbury v. Elkin, 3 P. Wms. 564; Forth v. Chapman, 1 P. Wms. 664; Nichols v. Hooper, Ib. 199; Hughes v. Sayer, Ib. 534; Fosdick v. Cornell, 1 Johns. 449; 3 Johns. 292; 10 Johns. 14; Benton v. Patterson, 8 Ga. 146; Kemp v. Daniel, Ib. 385; Carlton v. Price, 10 Ga. 495.
    2. We claim that in the State of Ohio the legal as well as the popular and natxxral sexxse of the words “ dying without children,’» or issue, etc., is without children, etc., at the death ; and that the courts do ixot require the aid of additional words. Morgan v. Morgan, 5 Day, 517; Beauclerk v. Dormer, 2 Atk. 308; Brewster v. Benedict, 14 Ohio, 383; King v. King, 15 Ohio, 561; Daniel v. Thompson, 14 B. Mon. 662; Harris v. Smith, 16 Ga. 545.
   J. B. Swan, J.

The second item of the will of Ferx'is creates an estate for life in Elizabeth, his daughter. By the third item the devises to Elizabeth’s children (if she shall have any heirs) the same lands in fee. The foux’th item provides that if Elizabeth shall die without children, the same lands shall pass to his brothex-s and sistex's.

It is claimed by the plaintiffs that the foux’th item of the will: “If my daughter, Elizabeth A., shall die without childx’en, then and in that case, I give and bequeath said laxxds to my brothers and sisters, their heirs and assigns forever, after the death of Elizabeth A., as aforesaid,” is a limitation, upon the estate in fee of the children of Elizabeth A.; that an estate tail in her children was created by the words, “ if Elizabeth A. shall die without children,” and the estate in them was thereby limited to the issue and the issue of the issue of such children until their extinction. *In [575 other words, Ferris intended, by the fourth item of his will, to cut down the fee simple created in the children of Elizabeth by the third item of his will, to a fee tail, and thereby create an estate-tail in the issue of Elizabeth, limited only by the indefinite failure of such issue.

It is the settled law of England, and has been followed in many of the states in this country, that where there is a devise in fee to-A, but in case he die “without heirs,” or “without issue,” or “ on failure of issue,” then to B in fee; the words, “if he die without issue,” or words of similar import, do not mean, as the terms obviously import, a dying without issue at the time of the death of A, but means a failure of issue whenever it shall happen, and that these words are not satisfied until the issue and the issue of the issue of A and their descendants become extinct. Under this construction of such terms in a will, the estate of the issue of A is considered an estate tail, limited only by an indefinite failure of issue, and consequently that, when there is no longer any issue of the issue of A, the estate would devolve upon B. The courts, first perverting the language of the will by holding that these words created an estate tail limited only by an indefinite failure of issue, declared such a limitation void, because the contingency, upon which the estate of B would accrue, was too remote, depending, as it did, upon a general failure of issue. It is quite difficult to comprehend how the words, “if he die without issue,” should be taken to mean whenever his issue shall fail indefinitely at and after his death, or how a man who has died with issue living can ever afterward be said to have died without issue.

This strange construction of such words seems to have arisen from the language of the statute de donis, regulating estates tail, which required that when lands were given by one to another and the heirs of his body, such lands should remain unto the issue of them to whom it was given after *their death, or should [57i> revert to the donor or his heirs if issue fail.

The English courts, as if to judicially announce that this construction of such words was forced and unsound, have held that the same words, when used in relation to the disposition of pereonal property, meant simply if A, the first taker, dies without issue living at the time of his decease. And the English judges, who have deplored this absurd and unreasonable perversion of the meaning of the words, and disregard of the. intention of testators, have, notwithstanding, invcterately but reluctantly followed this construction of devises in respect to real estate, because imbedded in the peculiar and complicated, system of English titles.

The English courts, however, have sought, with eager ingenuity, words in wills or circumstances which would avoid the rule. Thus it has been held that if the limitation over was upon the first taker dying without issue living, or dying without leaving issue behind him, that the will meant issue living at the death of the first taker. But the disposition in this country to break in upon the old English construction upon this subject is very manifest. Thus, in the case of Morgan v. Morgan, 5 Day, 517, which was like the case now before us. In that case A devised his real estate to his sons B, C, and D, “their heirs and assigns foreverand in case either of his sons should “ die without children, his brothers should have his part in equal proportions.” B married, and had issue, a son, who died during the life of B. B died, and left no children living at the time of his death. The court held that the limitation over was good by way of executory devise, and that the words, “ die without children,” was intended a dying without children living at the death of B. In Harris v. Smith, 16 Georgia, 577] 545, a testator devised land to A, and if A ^should “ die leaving no lawful heirs, then, and in that case, it is my will that all of the said property shall be divided, share and share alike, between the children of B.” It was held that the words, “ die leaving no lawful heirs,” were equivalent to the words to “ die without children,” which were equivalent to die without children living at the death of A.” In the case of Anderson v. Jackson, 16 Johns. 382, it was decided that after the devise to the sons of A and B in fee, the limitation, that if either should die without lawful issue, his share to go to the survivor, was good as an executory devise, and that the true construction was a failure of issue, living at the death of the first taker. It will be perceived from these cases, and others might be cited to the same effect, that in those countries where the old English interpretation of the words, “if he die without issue,” have not been expressly disclaimed, courts have constantly evaded that interpretation by seizing hold of circumstances and words deemed sufficient to establish the natural sense of the words; so that the interpretation and effect of these words may be considered a rule of property, depending upon the variable opinions and feelings of judges, some of whom may think these words sufficiently restricted by other words or cireum - stances, which other judges may consider as wholly inadequate.

It is a singular fact that with the repeated decisions of the English courts upon this subject, testators, from generation to genera•ation, persisted in using these natural words, and which were held to be inoperative and void, until, in the first year of the reign of the present Queen, a statute was passed declaring that the words “ die without issue,” or other words which may import a want or or failure of issue, should be construed to mean dying without issue living at the death of the person, and not an indefinite failure of issue, unless a contrary intention appear by the *will. The [578 English rule adopted in Virginia, and in a modified form in New York, has met the same fate by legislative interposition. In Ohio, as in Kentucky, the English rule of interpretation has never been sanctioned; and in the latter state the subject was very fully considered in the case of Daniel v. Thomson, 14 B. Mon. 662; and the English rule was rejected as one unknown to the community; contrary to the natural sense and common use of words ; founded upon laws and estates inapplicable to titles in Kentucky, where, as here, estates tail are abrogated; and so evaded by courts as to be made to depend upon the discretion and variable opinions of judges. If there be any rule of interpretation of words which defeats the intention of the testator, and to which the following language of Justice Hitchcock is applicable, it is the English rule now under consideration: “ I must be permitted to say that these rules, in most eases, are applied not for the purpose of ascertaining, but of defeating the intention of the devisor. In this state, however, we are required by statute, to carry out this intention ; and I presume no such statute would have been passed, had it not been supposed that these antiquated rules of construction were too much regarded by our courts.”

We are all of the opinion, for the reasons which have been indicated, that the words, “ if he die without issue,” or “ without leaving issue,” or “heirs of his body,” or “children,” or other words of similar import, are to be interpreted according to their plain, popular, and natural meaning, as referring to the time of the person’s death, unless the contrary intention is plainly expressed in the will, or is necessary to carry out its undoubted purposes. We could, without impeaching the old English rule of interpretation, find in the words of the will before us, and in the fact that the broth-579] ers and sisters of the testator were living at the *time he made his will, sufficient to restrict the contingency and the devise over, to the time of the decease of his daughter. But we are unwilling to make an exception by which we sanction the English construction of the words under consideration, as referring in general to an indefinite failure-of issue, and at the same time make the case before us an exception to that rule ; thus leaving open a wide field of uncertain interpretation of words and circumstances, so that'no man would know the nature of an estate which depended upon the interpretation of these or the like words, until there had been a decision on the particular will, on which the question might arise.

If the English rule of interpretation had been recognized by our courts as a rule of property we would not disturb it. It would then be a fit subject of legislation. But it never has been recognized ; and the uniform course of the decisions of the courts of this state has been to so construe wills as to carry into effect the intention of testators. To adopt the English rule, is clearly to defeat what every person must acknowledge is the real and the lawful intention of testators; it is to presume that a testator intended to create an estate forbidden by our statute relating to entailments; and a rule too, which, wherever recognized by courts, has been changed by legislation.

Indeed, the only certain and stable principle is to hold that these words in a will, as in other cases, must be taken in their natural sense, unless a contrary intention is plainly expressed.

Applying this rule to the case before us, the will provides that if Elizabeth should die without children, the estate should pass to the brothel’s and sisters of the testator. Elizabeth had no children, nor grandchildren, when she died, and the contingency provided for by the will — -the existence of children — at that time occurred. Upon 580] her ^decease the title vested in the brothers and sisters of the testator, and, under the counter-claim, judgment must be entered accordingly.

Bartley, C. J., and Brinkerhoee, .Bowen, and Soott, JI., concurred.  