
    *Burfoot v. Burfoots.
    March, 1830.
    Wills — Construction—Executory Limitation — Case at Bar. — Testator devises and bequeaths to his two grandsons D. and T. 33. children ot his deceased daughter M. B. sundry real and personal estate, and adds, “all the estate given to my grandsons is to be equally divided between them, each holding his part in tee simple, upon condition that each shall have issue of his body; but if either should die leaving no snch issue, then his share shall pass to the surviving grandson: and snch survivor shall hold and enjoy in fee simple the whole estate given to both, upon condition that such surviving grandson shall, at the time of his death leave issue of his body: but if both my grandsons shall die, neither of them leaving such issue as aforesaid, and any of the children or grand children of my daughter E. M’f. should be then living, the whole estate given to my two grandsons shall be considered as given for life only, and the same shall, after their death without such Issue as aforesaid, be equally divided in fee simple among th e issue of my daughter E. M’T. then living, and the children of such of them as may then be dead."
    Held, each of the grandsons took a fee simple in the moiety devised to him, with an executory devise limited and well limited thereon to the other, on the contingency of either dying without leaving issue living at his death.
    Daniel Trabue late of Chesterfield, died in 1818, having- first made his last will and testament, whereby, 1st, he devised and bequeathed sundry real and personal estate to his wife for life.
    2dly. He devised sundry other real and personal estate, and a moiety of the remainder of that which he had given to his wife for life, to his executors, in trust, that they should apply the profits thereof to the support of his daughter Elizabeth M’Tyre and her children, and to her and their exclusive use and benefit, so that her husband Robert M’Tyre, should never have any control over the subject; and then he added: “But it is my will and desire, that, immediately after the death of my said daughter Elizabeth M’Tyre all the trust estate aforesaid be equally divided, in fee simple, among all the issue of her body lawfully begotten and legal representatives of such of them as may then be dead ; but if my said daughter Elizabeth should leave no such issue of her body, then it is my will and desire, that the said trust estate be equally divided, in fee simple, between my grandson Daniel Trabue Burfoot and Thomas Bur-foot, children *of my late daughter Mary” (the deceased wife of Matthew Burfoot) “and their legal representatives in the event of the death of either or both of my said grandsons at the decease of my said daughter Elizabeth without issue as aforesaid; but, if one only of my said last mentioned grandsons should then be living, and the other having died without issue, then it is my will and desire that the whole of the trust estate aforesaid should pass to and be held in fee simple by my grandson so surviving.
    3dly. He devised and bequeathed sundry other real and personal estate, and the other moiety of the remainder of that given to his wife for life, to his two grandsons Daniel Trabue Burfoot and Thomas Burfoot equally to be divided between them (without any words of inheritance) and then he added: “all the estate, real and personal, given to my two said grandsons, is intended to be equally divided between them, each holding his equal part thereof in fee simple, upon condition that each shall have issue of his body lawfully begotten ; but if either of my said grandsons should die leaving no such issue, then that moiety of the estate allotted to him, shall pass to the surviving grandson; in which case, such survivor shall hold and enjoyan fee simple the whole estate given as aforesaid to my two said grandsons, upon condition, nevertheless, that such surviving grandson shall, at the time of his death, leave issue of his body lawful^ begotten: but it is to be distinctly understood, as my will and desire, that if both of my grandsons should depart this life, neither of them leaving such issue as aforesaid, and any of the children or grandchildren of my said daughter Elizabeth ■should then be living, then and in that case, it is my will and desire, that the whole of the estate given as aforesaid to my two said grandsons, be considered as given to them for life only, and that the same shall, at their death without such issue as aforesaid, be equally divided in fee simple among all the issue of my said daughter Elizabeth M’Tyre, then living, and the children of such of them as may then be dead.”
    *4thly. By a codicil, “in the event of the death of all his said grandchildren before they should arrive at the age of twenty-one years, or without lawful issue,” he devised overa large portion of his real estate to his son-in-law Matthew Bur-foot in fee, and all the residue of his estate in equal portions to four of his nephews and nieces.
    Both the testator’s grandsons Daniel Trabue and Thomas Burfoot, survived him ; and Daniel Trabue Burfoot died in early infancy, and of course intestate and without issue, his brother Thomas, and his father Matthew Burfoot,' him surviving. And then the father Matthew Burfoot died intestate, leaving his son Thomas, and his second wife Julia Bavinia, and Rosabella Burfoot, an infant daughter of his second marriage, him surviving.
    In a suit brought in the superiour court of chancery of Richmond, by Julia Bavinia. Burfoot and Rosabella Burfoot, against Thomas Burfoot, Bawson Burfoot executor of Matthew Burfoot, and William Eend-ley, administrator de bonis non with the will annexed of the testator Daniel Trabue, for a partition of Matthew Burfoot’s real estate and other purposes, the plaintiffs insisted, that the testator’s two grandsons. Daniel Trabue Burfoot and Thomas Burfoot took by his will, each respectively an estate tail in his moiety of the real property thereby devised to those grandsons, which estate tail was converted into a pure and absolute fee simple, by the statute abolishing entails; that, therefore, on the death of Daniel Trabue Burfoot, his moiety descended to his father Matthew Burfoot, his-heir at law by the statute of descents; and that this moiety, upon the death of Matthew Burfoot, descended to his son Thomas and daughter Rosabella, subject to his widow’s right of dower. And so the chancellor held and declared, and made an interlocutory decree directing a partition according^';. from which decree an appeal was prayed on behalf of Thomas Burfoot, and allowed by this court.
    
      '■'■'The Attorney General and Johnson, for the appellant,
    contended, 1. That according to the intent the testator, and the true construction and effect of the will, the two grandsons, took, in the first instance, only life estates in the moieties, of the lands devised to them, with a series, of contingent remainders limited on those life estates, to and between them for life and in fee, and ultimately to the issue to. Mrs. M’Tyre; contingent remainders, depending on the contingency of one or both, of them leaving issue, or not leaving issue, at his or their death. Eor, they said, the testator had taken much pains to manifest,, and had very clearly expressed, his intent, that neither was to have the fee simple, or any estate of inheritance, in his moiety, but upon the condition of his having issue ; and that, if either or both should die without leaving issue, either or both so dying should have only a life estate.
    The effect of the devise, as applied to the moiety of the deceased grandson Daniel, according to their construction, was thus: Devise of the moiety to Daniel for life; remainder to himself in fee, in case he should have lawful issue; remainder in case Daniel should not leave such issue, to his surviving brother, Thomas, for life; remainder to Thomas in fee, in case he should leave issue; remainder, in case he also should die without leaving issue at his death, and there should be children or grandchildren of Mrs. M’Tyre then living, to the issue of Mrs. M’Tyre &c.
    And Thomas now held the whole, one moiety under the immediate devise to him, and the other under the contingent limitation thereof to him in the event that had actually occurred of his brother dying without leaving issue; but he held only a life estate in the whole, with contingent remainders limited thereon, to himself in fee in the event of his leaving issue, and if he should not leave issue at his death, and any of Mrs. M’Tyre’s children or grandchildren should be living at the time, then to her issue &c.
    '"Such were the dispositions intended by the testator; and there was no principle of law that controlled or interfered with them, to prevent them from having full effect.
    But, 2. If they were mistaken in their first view of the devise; if each of the grandsons took an immediate estate of inheritance in the moiety devised to him; they maintained, that that estate was clearly a fee simple. On this point, they argued, the express devise that each should hold in fee simple, was conclusive. This was not like the common case of a devise to one and his heirs, with executory limitations over on a failure of heirs of the first taker, where the context, and the general scheme of the disposition, might evince, that the devisor meant by the word heirs, not heirs general, but heirs of the body, and therefore intended to give the first taker an estate tail. Here, the testator was explicit as to the nature and quantity of the estate he intended to devise: he left no room for construction or implication. He gave a moiety to each grandson in fee simple; and it was impossible to hold, that they took estates tail by implication in their respective moieties, without violence to the language, and an utter disregard of the plain intent of the devise.
    Taking it, then, that each of the grandsons took an immediate estate in fee simple in his moiety, the limitations that followed were executory devises limited after ■a fee. And the question was, Whether, upon the just construction of the will, those executory devises were made to depend on the indefinite failure of issue of the first takers respectively, or on a failure of issue living at their death? If the former contingency was intended, it was too remote, and the executory devises were void in their creation; if the latter, those devises were good and valid limitations, within the well settled principle of Pells v. Brown, Cro. Jac. S90; Butler’s Eearne, 418.
    And, they said, the testator had in his mind, the event oí the failure of issue of these two grandsons, respectively, living at their death, as the contingency on which the moiety given to each was limited to the survivor: that his language ’’'indicated its meaning, as plainly and distinctly, as the most apt and technical words could have expressed it. The first alternative contingency of either dev-isee having issue, and of his leaving no issue, naturally imported having issue at his death, and leaving no issue at his death. The limitation over, upon the death of one leaving no issue, to the surviving grandson, evinced, that the survivor was to take at the death of the one first dying; that is, in the event of the failure of his issue at his death. The limitation of the whole estate to the survivor in fee, if he should at the time of his death leave issue, and if both should die leaving no issue as aforesaid, then over, expressly restrained the contingency of the survivor dying without leaving issue, to a failure of his issue living at his death, and evinced, that, in framing the previous contingency of the first devisee dying leaving no issue, he meant the same thing; a failure, namely, of his issue living at his death. Then, the provision that if both should die leaving no issue, the estate should be considered as given to them for life only, shewed, that the contingency of their leaving no issue, was an event to be ascertained at the termination of their respective lives; in other words, it was the contingency of their leaving no issue living at their death. And the ulteriour limitation of the estate, at their death leaving no issue as aforesaid, to Mrs. M’Tyre’s issue then living, undoubtedly referred to the time of the death of the two grandsons. Lastly, they averted to the executory limitations of the estate vested in trustees for Mrs. M’Tyre and her family, and to the ultimate limitations contained in the codicil (which were Likewise made to depend on a failure of issue) for the purpose of shewing that the testator, in ever3T instance, had never an idea in his mind of a general indefinite failure of issue, but always intended a failure of issue of the previous takers living at their death.
    S. Taylor and Leigh for the appellees,
    said, that the position first taken by the appellant’s counsel, namely, that the dev-isees took, in the first instance, no estate of inheritance ^whatever, but only a life estate, in the moieties devised to them respectively, was altogether untenable. That view of the devise rested on the supposition, that the provision, that each should hold his moiety in fee simple, upon condition that each should have issue of his body, but if either should die leaving no such issue, his moiety should pass to the survivor, made the having and leaving issue, a condition precedent to the vesting of the fee in either. Yet, if it was a condition precedent at all, it was a condition precedent to the vesting any estate whatever; of an estate for life as much as of the fee simple. The supposed words of condition applied to the holding of the moiety, as well as to the holding thereof in fee. It was necessar3T, therefore, in order to give any immediate estate to either devisee, to take the words in question, as words of limitation not of condition. And such words, when used in dispositions of property like the present, had always been taken as words of limitation ; for instances of which they referred to Page v. Hayward, 2 Salk. 570, and 2 Preston on Estates, 507-8. However, the argument was, that, in this case, the immediate estates given to the two devisees respectively, were restricted or reduced to estates for life, by an express provision of the will to that purpose. But that argument, they shewed, consisted in applying a provision made by the testator for another and future event that had not yet happened, to the case and event that had happened, for which the testator made no such provision: the will did not provide, that if either dev-isee should die without leaving issue, he should be considered as taking only a life estate; but, that if both devisees should die, neither leaving issue, they should be considered as taking only life estates.
    There was no doubt that each devisee took an immediate estate of inheritance in the moiety devised to him. What estate of inheritance? An es'tate tail? if it was, the executory limitations were contingent remainders, and were defeated *by the statute, which converted the estate tail into a pure and absolute fee. Was it a fee simple? if so, the limitations were executory devises limited after a fee: and the question would still remain, whether they were well limited or not?
    And considering the case in this view also, they insisted, that the just decision of it depended on those provisions of the devise exclusively, which related to and provided for the event that has actually occurred, out of which the case had arisen without regard to subsequent limitations of the same estate, made in respect of another and future event that might or might not happen? much more without regard to the limitations contained in those other clauses of the will making provisions for Mrs. M’Tyre and her family (which were framed upon a different scheme of disposition, and related to a different subject) or to the ul-teriour limitations contained in the codicil: That the language of a preceding limitation could not be controlled or explained by different language used in ulteriour limitations of the same estate; on the contrary, diversity of language evinced diversity of meaning: That the only words of the will applicable to the event that’ had occurred, and the only words, therefore, material to the case before the court, were these: “All the estate given to my said two grandsons is intended to be equally divided between them, each holding his equal part thereof in fee simple, upon condition that each shall have issue of his body, but if either should die leaving no such issue, then his moiety shall pass to the surviving grandson.” For, that it was under this limitation only, that the surviving grandson now claimed his deceased brother’s moiety. The remaining words were intended to prescribe the contingency, on which the estate was to pass over to Mrs. M’Tyre’s issue; the contingency, namely, "of the surviving grandson, (after having acquired his brothers moiety by force of the previous limitation) dying himself without leaving issue at his death ; a limitation, which, in the view of the testator, were equally reasonable, whether the surviving grandson *took his deceased brother’s moiety, by way of contingent remainder limited on a previous estate tail, or by . way of executory devise limited on a preceding fee simple, devised to the deceased brother.
    Then, they said, the only peculiarity of the case was, that the testator instead of devising a moiety to each grandson and his heirs, in the first instance, had devised a moiety to each in fee simple. But the first were- the appropriate words of inherit■ance to pass a fee simple, to which the phrase used by the testator, was merely equivalent; indeed, it was only a substitute for the other and the proper words, which was allowed .to supply the place of them only in wills. Co. Bitt. 9, b. ; 8 Vin. Abr. Devise, L. a. 205. There could be no difference in the intent, and consequently none in the effect, of a devise to each grandson in fee simple, and a devise (in the more apt technical words to pass a fee) to each and his heirs.
    In the common case of a devise to A. and his heirs, and if he dies without issue or heirs of his body or the like, then over to B. “the devise to A. and his heirs, taken separately, would give him an estate in fee simple; but the subsequent words shew, that he intended to give an estate to B. also, and that that estate was made .to depend on A.’s dying without issue. The question naturally arises, why was the interest of B. made to depend on A.’s dying without issue? Was it, that the testator intended it as a mere contingency, on which the estate of A. was to be intirely defeated? or was it, that he! intended that if A. died leaving issue, that issue should have the estate, so long as there should be any issue? The courts, whose province it is to expound wills, have, from the beginning, uniformly and invariably, considered that it proceeded from an intention in the testator, to provide for the issue of the first taker, which intention could not be effected without holding that he took an estate tail, and not a fee simple. Therefore, the words if A. die without issue were held to control the previous words A. and his heirs, so as to give him a fee tail, and not a’fee simple.” Per Cabell, J., ki *Jiggetts v. Davis, 1 Leigh, 419. Then, in the present case, where the devise was to each grandson in fee simple, and if he should die leaving no issue of his body, then to the survivor, was not the testator’s intention to provide for the issue of the first takers, respectively, equally apparent? Was there any imaginable difference, as to the manifestation of intention to provide for the issue of the first taker, between the present and the more common forms of such devises? If the intent was to provide for the issue of the first takers, that intent could only be accomplished by giving them estates tail; and to that, the main intent, all particular and subordinate intents must give way.
    Each of the devisees, therefore, took an estate tail in his moiety, with a contingent remainder thereon limited to the other, on the failure of issue of the first taker, unless the contingency be restrained to a failure of issue of the first taker living at his death; and distinctly, clearly, indisputably so restrained; for this rule is settled and inflexible, that no limitation shall be construed an executory devise, if it may be construed to be a remainder. See opinion of Green, J., in Jiggettsv. Davis, 1 Leigh, 402, 3. Now, the devise here was, in effect, thus: Devise of one moiety to each grandson to hold in fee simple, if each should have issue of his body, but if either should die leaving'1 no such issue, then his moiety should pass to the surviving grandson. The phrase “if each should have issue of his body,” was clearly explained by the words immediately following,.to mean “if each should have and leave issue;” and the phrase would have imported the same sense, had it stood alone. Tate v. Tally* 3 Call, 3S4; Tidball v. Lupton, 1 Rand. 194; Romilly- v. James, 6 Taunt. 263; 1 Com. Law Rep. 379. The limitation over, then, is made to depend, simply, on the contingency oí the first taker dying without leaving issue of his body ; and, in limitations of real estate, that phrase has always been held to import a general indefinite failure of issue. Forth v. Chapman, 1 P. Was. 667, approved by this .court in Hill v. Burrow, 3 Call, 349; Butler’s Fearne, 476, 7. Nor *can the limitation over to the surviving grandson, restrain the generality of the contingency; for the phrase surviving grandson as here used, means only the other grandson. See opinion of Carr, J., in Bells v. Gillespie, S Rand. 278 , 284.
    Lastly, supposing that each of the devisees took a fee simple, in the first instance, and that the limitation over was an executory devise limited after the estate in fee, upon the failure of issue of the first taker, still it would be necessary to find some expressions in the will, precisely applicable to the limitation in question, and clearly restraining the contingency on which the ex-ecutory devise was limited, to a failure of issue at the death of the first taker, or within twenty-one years after, the period indulged to executory devises; otherwise, the contingency was too remote, and the executory devise therefore void.
    
      
       American .Edition of 1828, two volumes bound in one.
    
   GREEN, J.

The clause in Daniel Tra-bne’s will, upon which the questions in this cause mainly depend, is (dropping the inoperative words) to this effect: after giving to his grandsons, the children of his deceased daughter, Mrs. Burfoot, real and personal property, in general terms, to be equally divided between them, the testator proceeds: ‘‘All the estate given to my grandsons is to be equally divided between them,1 each holding his part in fee simple, upon condition that each shall have issue of his body lawfully begotten; but if either of my grandsons should die leaving no such issue, then his share shall pass to the surviving grandson ; and such survivor shall hold and enjoy in fee simple, the whole estate given to both, upon condition that such surviving grandson shall at the time of his death leave issue of his body lawfully begotten : but if both my grandsons shall depart this life, neither of them leaving such issue as aforesaid, and any of the children or grandchildren of my daughter Elizabeth should be then living, the whole estate given to my two grandsons, shall be considered as given for life only, and the same shall, after their death without such issue as aforesaid, be equally divided in fee *simple amongst the issue of my daughter Elizabeth then living, and the children to such of them as may then be dead.”

Neither party insists, that the terms upon condition used in this clause, make a common law condition, either precedent or subsequent. If it did, the main objects of the will would be defeated, whether it was considered as a condition precedent or subsequent ; in the first case, it would leave the estates given, in express terms, immediately to the grandsons, to descend to the testator’s heirs at law until the condition was performed; and in the other, upon the failure of the condition, the estates would revert to the heirs at law, and the limitations over be defeated, even if they were in all other respects good. They operate only as words of limitation, and are to be construed like any other words of limitation, according to the intent of the testator, to be gathered from his whole will.

The counsel for the appellant admitting this, insists, that the grandsons took, respectively, either estates in fee simple, with limitations over operating as valid execu-tory devises, or estates for life with contingent remainders; and that, whether the words surviving grandson and such survivor, be taken according to their literal import, or as meaning other grandson ; such other: while the counsel for the ap-pellees insist, that they took estates tail.

One of the constructions relied upon on the part of the appellant, is, that the grandsons took, in their respective moieties, only estates for their lives, with a series of contingent remainders limited upon them, for life and in fee, to and between them, and to the issue of Mrs. M’Tj're, depending upon the event of one or both of them leaving or not leaving issue living at the time of the death. I do not think there is any foundation for this construction. The estates originally given to each, were declared, in express terms, to be in fee simple, to go over to the other in certain events, and finally, if both should die without leaving issue, to the issue of Mrs. M’Tyre, in which event only did the testator declare, that the whole estate given to both should *be considered as given for life only. That event has not happened; and the estates, whether of fee simple or fee tail, originally given, remain unaffected by that declaration, even if they can be hereafter affected thereby, in the event of the death of both the grandsons without leaving issue. That declaration, however, although inefficient to reduce the estates originally given to estates for life, has some influence in determining the real question in the cause; which is, Whether the limitations over were intended by the testator, to take effect after an indefinite failure of the issue of the grandsons respectively, or only in the event of the failure of issue living at the time of their deaths respectively?

If he meant an indefinite failure of issue, the limitations over would be defeated, whether the original estate in fee simple was or was not converted, by the subsequent provisions of the will, into an estate tail; in the one case, by the limits imposed upon executory devises; in the other, by the operation of our statute converting estates tail into fees simple, and defeating all remainders limited thereon. If he meant a definite failure of issue, then the limitations over would be valid as execu-tory devises, unless it be necessary, in order to effectuate the intention of the testator, according to the law as it was before the statute abolishing entails, by converting the estates in fee simple given in express terms, into estates tail.

Before examining these questions, it may be proper to remark, that whatever was the intention of the testator, in respect to the period when the limitations over should take effect, or whether the estates given to the grandsons were estates in fee, simple or fee tail, it is necessary, in order to effect his obvious intention in respect to the disposition of the property given to his grandsons, to consider the words surviving grandson and such survivor as meaning other grandson and such other. Eor, taking those expressions of the will in their literal signification, the consequence would be, that if the gran'dson first dying left issue surviving him, and the other afterwards died without issue surviving him, *the issue of the one first dying could not take the share of the one dying last, either as an executory devise, or as a contingent remainder limited upon an estate tail. If it was an estate in fee simple, it would descend to the heirs at law of the grandson last dying; his father, if living: if an estate tail, it would revert to the heirs at law of the testator. I speak of the law as it was before our statute converting estates tail into fees simple. But, under the operation of that statute, whether an estate in fee simple or fee tail, it would in such a case have descended to the heirs at law of the grandson. Such an event would have been contrary to the manifest intention of the testator; which was to give his whole estate (after providing for the support of his wife and living daughter for their lives, in equal or nearly equal proportions to the respective families of his living and deceased daughter) under such limitations, as to continue the proportion assigned to the family of his deceased daughter in her family, if either of her children had issue, but if not, then to transfer it to the family of his living daughter; and vice versa, to continue the proportion assigned to the family of the living daughter in her family, if she left any issue, and if not, to transfer it’to the issue of his deceased daughter. These words, therefore, surviving grandson and such survivor, found in the clause of the will under consideration, give no aid in determining the intention of the testator, as to the period at which the limitations over were to take effect.

The settled construction of the expressions of this will: “ upon condition that each shall have issue of his body lawfully begotten;” “but if either should die leaving no such issue;” “if both should depart this life, neither of them leaving such issue;” and “after their death without such issue,” is, that they refer to an indefinite failure of issue, unless limited and controlled by some other provision or expression in the will. To justify the construction contended for by the appellant, it is necessary to find in it something shewing satisfactorily, that the testator, in all these expressions, intended to confine them to a failure of the issue of the *grandsons, not at an indefinite period, but at the time of their respective deaths. And, I think, there is enough in the will for that purpose.

The testator repeatedly, and as it seems emphatically, declares, that his grandsons shall, if they have or leave issue, take and I hold in fee simple, as contradistinguished from the life estates only, which in an after clause he declares they shall be considered as taking, if both should depart this life neither of them leaving such issue; a declaration totally inconsistent with the idea of the indefinite failure of issue, and absurd if applied to the case of one of them dying and leaving issue, and that issue inheriting until it failed; but perfectly apt and sensible, if applied to the case of both dying without leaving issue, living at the time of their respective deaths. Again, in providing’for the case, in which one of the grandsons dj'ing without issue, the other was to take his share, the testator says: “and such survivor shall hold and enjoy in fee simple the whole estate given to both, upon condition that such surviving grandson shall at the time of his death leave issue of his body lawfully begotten:” thus explicitly providing, in that particular instance, for the case of -a failure of issue at the death of the devisee. And there is no imaginable motive, which could induce him to make any discrimination between the limitation in that particular case, and all others contained in this clause of the will.

The effect of the will, therefore, is to give to each of the grandsons an estate in fee, and if either of them died without issue living at the time of his death, to the other in fee, and if both died without issue living at their respective deaths, to the issue of Mrs. M’Tyre then living, in fee.

The other judges concurred, and the decree was reversed.  