
    W. W. Randolph et al. vs. D. D. Wendel, Ex’r., et al.
    
    1. Will. Construction. Mxemitory devise. Limitation of estates. Words importing indefinite failure of issue. Where a testatrix by her will gave to her grandson and granddaughter an absolute estate in slaves, to them, their heirs and assigns for ever, with the limitation that if the grandson should die “without issue” his portion should go to the granddaughter, and if she should die “without an heir” her portion should go to the grandson, and if both should die without “ an heir of their body” that the slaves should go to the “heirs of her son, [who ■was living at the death of the testatrix,] to them and their heirs for ever;” it is held that these limitations, without issue, without an heir, and without an heir of their bodies, without any -qualifying words to control them, import an indefinite failure of issue, and are void for remoteness.
    2. Same. Same. Same. Of construing obscure clauses by reference to other distinct clauses. In interpreting a limitation in a will in the nature of an executory devise, a construction must he had alone upon the clause in which it is contained, and no reference can be had for that purpose to other substantive clauses which do not expressly refer to or purport to explain the clause in question.
    3. Cases cited. Simpson vs. Smith, 1 Sneed, 396; Hay vs. Conner, 8 Humph., 633; McKay vs. McKay, MSS., Nashville, December Term, 1852.
    PROM RUTHERPORD.
    This bill was filed in tbe Chancery Court at Mur-freesboro’ on the 6th of October, 1856, to obtain a construction of the will of Mary Randolph, deceased, and to have the rights of the parties stated and declared. The testatrix died in 1827, having made her last will and testament, which was duly admitted to probate and registration. The will is as follows:
    “ In the name of God, Amen! I, Mary Randolph, of the county of Rutherford, being of sound mind and memory, do make this my last will and testament.
    “Imprimis: I give and bequeath unto my two grandchildren, Peter Randolph and Sarah Randolph, heirs of my son Peyton Randolph, deceased, one negro woman named Ailsey, and her child Eanny, and all their future increase, to them and their heirs for ever. Ailsey and her child are not to be sold for the payment of any of my debts; but if my grandson Peter Randolph should die without issue, I will his proportion of the above property to my granddaughter Sarah Randolph; and if my granddaughter Sarah Randolph should die without an heir, I give her proportion of the above property to my grandson Peter Randolph. It is further my will and. desire that if my two grandchildren Peter Randolph and Sarah Randolph should die without an heir of their body, I give Ailsey and her child Eanny, and all their future increase, to the heirs of my son Beverly Randolph, to them and their heirs for ever. Item. I give and bequeath to Mary Elizabeth Randolph, Lucy Randolph, Sally Randolph, and other heir or heirs that my son Beverly Randolph may have by his present wife or any other future wife hereafter, all the balance of my estate of every description whatever, after paying all my just debts, to be equally divided between them, when the youngest child becomes of age. It is also my will and desire that my son Harrison Randolph shall be supported out of the above property given to the heirs of my son Beverly Randolph during his life. And if either of the heirs of my said son Beverly Randolph should die without issue, the surviving children of my said son is to inherit the property of the one that dies; and if my said son Beverly Randolph should die without issue, then and in that case I give the property so devised to the heirs of my son Beverly Randolph, to Peter Randolph, and Sarah Randolph, to them and their heirs for ever. I do hereby constitute and appoint my son Beverly Randolph executor of this my last will and testament, revoking all wills that I have heretofore made. It is further my will and desire that my executor be not compelled to give security by the Court, unless compelled by law. In witness whereof, I have hereunto set my hand and seal, this 17th March, 1827.”
    Sarah Randolph, the granddaughter of the testatrix, died unmarried and without issue in the year 1851. Her brother Peter Randolph died in the year 1856 without issue. Peter Randolph left a will, by which he bequeathed his estate, including Ailsey and Eanny, and their increase, (except two of them which he sold in his lifetime,) to his widow, who is one of the defendants, Sarah Randolph. The defendant Wendel is the executor to this will. The complainants are the children of Beverly Randolph, (who is still living,) and they assert in their bill, after setting forth the will and the facts, that they are by said will entitled to the slaves Ailsey and her child Eanny and their increase, and pray that the same be decreed to them. The defendants demurred to the bill. At the November Term, 1856, Chancellor EriersoN gave a decree sustaining the demurrer and dismissing the bill. The complainants appealed.
    JOHN Marshall, for the complainants, said:
    The single question raised in the record is, whether or not the bequest over to the heirs or children of Beverly Randolph, in the event of Peter Randolph and Sarah Randolph dying without an heir of their body, is valid.
    1. It is contended by the complainants that the intention of the testatrix, as gathered from the whole will, was, in every instance where a bequest over is made, that the bequest over should take effect upon the death of the first taker without leaving issue living at his or her death.
    2. It is further contended that, as the subject-matter of the bequest was personal property, the terms employed in the will make the gift of the slaves in question to the complainants a valid one under the facts of the case.
    It will be observed that this case has nothing to do with the rule in “ Shelley’s case.” 2 Meigs’s Digest, p. 933. The intention of the testator is the first and great object of inquiry, and to this object technical rules are, to a certain extent, subservient. 2 Kent’s Com., 534, 535. “The great rule in the construction of wills, to which this of ejusdem generis and all others except those founded on public policy are not only subordinate but ancillary, is, that the intention of the testator, to be ascertained from the particular words used, from the context and general scope and purpose of the instrument, is to prevail and have effect.” Judge Reese, 10 Yerg. Rep., 26, 27; Williams vs. Williams, 3 Humph., 631. “ The testator may make his own glossary in the will itself, and define the terms he employs.” Finlay vs. King, 3 Peters’s U. S. Reports, 346. The construction of the will is to be made on the entire testament, and not merely on disjointed parts of it, and consequently all its parts-are to be construed with reference to each other. “Hence general words in one part of the will may be restrained in cases where it can be collected from any other part of the will that the testator did not mean to use them in their general senses.” 2 Williams’s Executors, 927, 928. Under technical words not necessary to give effect to any species of disposition, real estate will pass under the description of personal estate, and personal estate will pass under the description of real estate, according to the intention. 2 Williams’s Executors, 925. To carry out the intention of the testator, words will be supplied, transposed, and changed. 1 Jarmon on Wills, 427, (side page.) Words “ without issue” supplied. 1 Jarmon on Wills, 427. “Without issue,” read without leaving issue. Ibid., 428, 429, 442, etc. Every part of the will is to be looked to for the purpose of determining the testator’s intention in any clause. 10 Yerg., 859.
    Looking at the will of Mary Randolph, it is found that the terms employed by the testatrix have been used without technical precision. The testatrix at first undertakes to dispose of her slaves Ailsey and her child 'Eanny and their increase. She first gives them to Sarah Randolph and Peter Randolph, and their heirs for ever; but if Peter should die without issue, then she gave his share to Sarah; and if Sarah should die without an heir, she gave her share to Peter; and if Sarah and Peter should die without an heir of their body, she gave them (the slaves and increase) to the heirs of the body of Beverly Randolph and their heirs for ever. The foregoing is one item of the will, and, taken by itself, means — and such is the legal effect, it is submitted — that the slaves are given to Sarah and Peter; so that if either should die leaving no issue, the slaves should go to the survivor; and if the survivor should die without issue, they should go to the heirs of the body of Beverly Randolph. The failure of issue on the part of the first one of Sarah and Peter who should die is by the intention of the testatrix to take place in the lifetime of the survivor of the two, and is therefore not too remote; and the failure of issue of the survivor of Sarah and Peter is contemplated to' take effect in the lifetime of those persons who are described as heirs of Beverly Randolph, whoever they are.
    The testatrix by the second item (which is really a residuary clause of the will) gave the balance of her estate to Mary Elizabeth Randolph, Lucy Randolph, Sally Randolph, and other heir or heirs that Beverly Randolph may have by his present wife or any future wife, to be equally divided among them, when the youngest child becomes of age; so that, if either of the heirs of Beverly should die without issue, the remaining children of Beverly Randolph shall take the property of the one that dies; and if Beverly Randolph should die without issue, then the residuum or balance to go to Sarah and Peter Randolph.
    In the same item she provides that Harrison Randolph shall be supported during life out of the property given to the heirs of Beverly Randolph. (Beverly Randolph is still living.) It is manifest that in this item, by the term heir or heirs of Beverly Randolph, is meant child or children of Beverly Randolph. It is also manifest that the failure of issue on the part of a deceased child of Beverly Randolph must take place in the lifetime of the other child or children of Beverly Randolph, by the intention of the testatrix. It is also clear that the dying without issue by Beverly Randolph himself is contemplated by the testatrix to take effect in the lifetime of Sarah and Peter; otherwise the testatrix would be involved in the absurdity of reversing the subject-matter of her bequests to the two sets of her grandchildren, provided both sets should all die without issue living at the time of death. It is manifest that the words “heirs of the body of Beverly Randolph,” used in the first item of the will, mean the children of Beverly Randolph, for these are the sole objects of her bounty in the second item, where they are described by the words “ heir or heirs, or issue,” and upon whose death without leaving issue the property is to go to Sarah and Peter. It is also manifest that the words “without issue,” when describing the ■ condition in which Peter might die, and the words “without an heir,” when describing the condition in which Sarah might die, and the words “without an heir of their body,” when describing the condition in which both .might die, in the first item, means, as the same words mean in the second item, child, children, or, at most, issue living at the time of death.
    Such, it is submitted, is the intent and meaning of this will. The will, when looked to for its own explanation, leads us to this result. When the plan, purpose, and scope of the will, as shown on its face, are considered, all difficulty, it is submitted, as to the intention of the testatrix, if any, disappears. The testatrix has two sets of grandchildren, the two children of her deceased son Pey-ton and the children of her living son Beverly, who are the sole objects of her bounty. Her plan and purpose is to divide her property into two parts, and to give one to Peyton’s children and the other to Beverly’s children; and that the share or part which she gave to Peyton’s two children should go to the survivor in the event the first one of them who died should die leaving no issue living at his or her death; and on the death of the survivor without issue living at his or her death, then the same should go to her other grandchildren, Beverly Randolph’s. Or, in other words, Peyton’s children only had a life-estate in their part of the estate if they should respectively die without issue living at the time of their deaths, and at the death of the survivor the share should go to Beverly Randolph’s children.
    Her plan and purpose as to the part of Beverly Randolph’s children was precisely the same, with this exception, that if upon the death of Beverly Randolph he left children, the right of survivorship after that time is not given to the children of Peyton Randolph as to Beverly Randolph’s share.
    The testatrix’s purpose was to give the right of sur-vivorship between the individuals of the two classes, in the qualified manner stated, so long as there was any one of the individuals in both classes; and then the right of survivorship as between the classes is given.
    The scope of the will only extended during the lives of Peter, Sarah, and Beverly Randolph, so far as the question before the Court is concerned. Every contingency must occur by the plan of the testatrix in this time, upon which any disposition she has made depends. It is true that the will is inartificially drawn, but it is supposed that this is not material.
    Of course, if the foregoing reading of the will is correct, the complainants are entitled to recover. It has been insisted on the other side that the foregoing construction of the will is not the correct one, and that the particular words employed in it have a fixed legal signification, which must be given them in judicial construction, and cases have been referred to which lay down arbitrary and artificial rules by which to obtain the intention of the will. It has been shown that these rules are subordinate and ancillary to the rule that the intention shall prevail, whatever may be the particular words employed. It is somewhat amusing to observe that the Courts in enforcing these rules hold that they are inventions to get at the testator’s intention, and at the same time admit they defeat such intention.
    This case, it has been shown, steers clear of the rule in Shelley’s case. It also steers clear of that class of cases which hold that, where words are used which if used with regard to real estate would create an estate tail, where used as to personal estate, would give the absolute estate to the first taker.
    If the plan, purpose, and scope of the will and the second item are not to be looked to, but the legal effect of the particular words used in the first item alone are to be considered, then the question alone is, is the bequest over of Ailsey and Fanny and their increase to Beverly Randolph’s children bad for remoteness of disposition? This is a question of great difficulty upon the many decisions on the subject.
    It is true that the Courts, in their want of confidence in the arbitrary rules, have seized on the slightest circumstance to escape the mischievousness of their application. 10 Yerg., 287; 4 Kent’s Com. 281-283: “The Courts, according to Mr. Fearne, lay hold with avidity of any circumstance, however slight, and create almost imperceptible shades of distinction, to support limitations over of personal chattels.” It is insisted there are circumstances here that the Court might well lay hold of to support the limitation over in this case. Suppose, however, we are driven from our reading of the will, and are denied any circumstance which the Court will lay hold of to support the limitation over: what is the legal effect of the particular words used in the first item of the will? The name of the decisions on this point in reference to personal estate is legion. No direct decision has been found in Tennessee. See Booker vs. Booker, 5 Humph., 508. It is admitted that if the particular words employed in this will were used in reference to real estate, the gift would he void for remoteness, (if considered as standing by themselves,) by the weight of the cases at this day. The question is, when used in reference to personal estate, is the bequest over void for remoteness ? The leading case in support of the distinction between real and personal estate is Forth vs. Chapman, 1 Peere Williams’s R., 663. If this case is the law, then complainants are entitled to recover: in other words, the bequest over to complainants will be supported on the artificial mode of construction. The rule laid down in Forth vs. Chapman is powerfully supported by the unanimity of the decisions in afiirming, where personal estate is the subject-matter of the gift, that the slightest circumstance will support the "bequest over, and circumstances which would not have that effect where the subject-matter of the gift is real estate. And the reason upon which these decisions are based is the same upon which Forth vs. Chapman is based, to wit, that the character or nature of personal property is not permanent or indefinite in duration, like real property, and therefore a testator is not presumed to intend to tie it up by limitations indefinitely. Forth vs.. Chapman has been sustained by many decisions, and, it is submitted, is the law. Judge Green, in Booker vs. Booker, 5 Humph., 508; Lord Mansfield, Cowper, 410; Lord Eldon, 9 Vesey, 203; House of Lords, 6 Brown P. Oases, 309; 2 Jarmon on Wills, 419, 420; 2 Williams’s Executors, 928, and authorities cited in last edition. Lord Eldon declared that a repudiation of the distinction in Forth vs. Chapman went to stake settled rules to their foundation. Lord Hard-wicke, it seems, in different cases, recognized and repudiated the distinction without explanation, and so did Lord Kenyon. See 8 Term R., 146, and 6 Term R., 214. It is admitted that there are many respectable authorities opposed to the distinction. See 4 Kent Com., 281, 282. The Court is referred to the elaborate opinion of this Court in Bramlet vs. Bates, 1 Sneed, 554, et seq., as well as to the judgment in Booker vs. Booker, 5 Humph. 508. These cases, especially the former, upon the first point taken, sustain our views of the construction of Mary Randolph’s will.
    It is insisted that the Chancellor erred, and that his decree should be reversed.
    John W. Burton, for the complainants:
    The question for decision is whether the limitation in the will is too remote, under the well-settled rule that an executory devise must be limited to vest within the compass of a life or lives in being and twenty-one years thereafter. In the application of this rule, the Courts have often discussed the vexed question whether the testator,' by the words, “dying without issue,” or words of similar import, meant issue living at the death of the first taker, or an indefinite failure of issue. The weight of authority is, that in a devise of real- estate the terms “ dying without issue,” standing alone and unexplained, import an indefinite failure of issue. But in bequests of mere personal property this rule is different. This is a will of personal property alone. We think there is no room for the application of this rule, because the testatrix bas, as it was competent for her to do, explained the sense in which she nses the phrase, “ dying without issue.” But if we are mistaken in this, we urge that, this being a will of personal property alone, these terms, “ dying without issue,” do not import' an indefinite failure. It is conceded that there is great conflict in the authorities in the construction of this phrase in its application to personalty ; so much so that, according to Chancellor Kent, it is difficult to ascertain the balance- upon the question of authority. 4 Kent, 281. Some of the cases repudiate the distinction between devises of real estate and bequests of personalty, while other cases as strongly maintain it. In our State it is an open question. It is true that in Williams vs. Turner, 10 Terger, your Honors’ predecessors say that the" words “ dying without issue ” -import an indefinite failure of issue, whether applied to personal or real property. This case seems to ignore the distinction. But it is thought that the naked question as to the existence of the distinction has never been directly in judgment. In Booker vs. Booker, 5 Humph., Judge Green refers with evident approbation to the case of Forth vs. Qhapman, which is the leading authority for the distinction, and says that it has been recognized by many subsequent cases. We think, therefore, that, as far as there has been any judicial expression of opinion in Tennessee, the weight of authority is in favor of the distinction. But if we are mistaken in this, and there is no such distinction, we insist that in this case the will explains itself, and shows that the testatrix did not contemplate an indefinite failure of issue. Whatever difference of opinion may exist on other points, it is agreed that it is a mere question of intention, and Lord Macclesfield declared that this technical rule of construing a dying without issue to import an indefinite failure of issue was created for the purpose of supporting the intention of the testator. 4 Kent, 285.
    Now, in view of this principle, we refer the Court to the second bequest in this will, which contains the following : “ And if either of the heirs of my said son Beverly should die without issue, the surviving children of my said son is to inherit the property of the one that dies.” Now, this limitation to the surviving children in this clause is good; and the reason given is that the limitation to the survivors explains the sense in which the testatrix uses the words “dying without issue.” See authorities referred to in 1 Sneed, 578, 574. If then the question is as to the intention of Mrs. Randolph in the use of this phrase, and as she has in this clause clearly shown that she uses it in its restricted sense of issue living at the death of the first taker in this last clause, we think it manifest that in the first limitation to complainants she uses it in the same sense.
    But the point on which the whole case seems to us to rest is this, that, by a fair reading of the whole of this will, the testatrix has fully explained the sense in which she uses the several phrases, “ dying without issue,” “dying without an heir,” etc. The great rule of construction is, “that the intention of the testator, to be gathered from the whole will, is to govern.” 4 Kent, 596. This rule is peculiarly applicable to this will, when it is remembered that in each clause the devisees are the same, and the property is devised to each of the classes of grandchildren on the failure of the other, by cross limitations. Now in reading this will it is seen that the testatrix varies the phraseology to express the same idea. For instance, in the bequest to Peter she says, “if Sarah should die without an heir.” In the bequest to Sarah she varies the terms and says, “if Peter should die without issue.” And yet it is quite clear that in this will she meant to give them precisely the same estate: the testatrix could not therefore have used these words in their technical meaning. In Jarmon on Wills, vol. ii. p. 27, the doctrine is asserted that the word “issue” may be and frequently is explained by the context to bear the restricted sense of children. And this is what we think is done in this case. She did not use the word heir (which, as before shown, she uses as synonymous with issue) in: its appropriate sense, as is clear for several reasons: 1st. The word heir is not appropriate to express the successor to personal property. 2d. In the residuary clause she says: “I give and bequeath to Mary Elizabeth Randolph, Lucy Randolph, Sally Randolph, and other heir or heirs that my son may have, etc., the balance of my property,” etc., and provides that it shall he divided between them when the youngest child becomes of age. Here it is apparent that the words heir and child are used as synonymous, and to express the immediate offspring of the parent. For these reasons we think that this will should be read just as though the limitations were upon a dying without children, which is the manifest sense of the terms. And by all the authorities, a limitation upon a dying without children is not too remote. See 4 Kent, 287.
    E. A. Keeble, for the defendants, with whom was Edwin H. Ewingi-, who said :
    The bill in this case is filed for a construction of a clause in the will of Mrs. Mary Randolph, which is as follows, viz.:
    “I give and bequeath to my two grandchildren, Peter and Sarah, heirs of my son • Peyton, deceased, one negro woman named Ailsey and her child Fanny, and all their future increase to them and their heirs for ever. Ailsey and her child are not to he sold for the payment of any of my debts; hut if my grandson Peter should die without issue, I will his proportion of the above property to my granddaughter Sarah; and if she should die without an heir, I give her proportion of the above property to my grandson Peter. It is further my will and desire that if my two grandchildren Peter and Sarah should die without an heir of their body, I give Ailsey and her child Fanny and all their future increase to the heirs of my son Beverly R., to them and their heirs for ever.”
    This is all of the will that relates in any way to this property. It is not alluded to, nor are the provisions in regard to it qualified by any other portion of the will. Eo rule of construction is given by the will itself. Each portion of the will must be construed by the general rules of law. Sarah Randolph is dead: she died before Peter and without issue. Peter is also dead without issue, leaving a widow, to whom he bequeathed said slaves and their increase, now considerable. Wendel is Peters’s executor. The children of Beverly Randolph claim these slaves.
    Wherever an estate, either in lands or personal property, is given to one and his heirs, and, if he die without issue or without heirs of his body, then to another, the provision for that other fails, and the first owner takes the absolute property. This is true of wills as well as deeds. It is an inflexible rule of property, without reference to any supposed intention of the donor. I say in deeds as well as wills, though strictly in a deed such a limitation would be void on another ground — that of limiting another estate upon a fee or absolute estate. This principle is founded upon the rule in Shelley’s case, and might be said to stand on higher ground, for by that rule it is only declared that the heirs of the first taker shall not come in by purchase, whereas here it is declared that a third person shall not come in after the heirs are exhausted. See Polls vs. Paris, 9 Yerg., 209; Kay vs. Conner, 8 Humph., 633; Booker vs. Booker, 5 Humph.; Bramlet vs. Bates, 1 Sneed, 554, where all the authorities are cited either in the opinions or arguments.
    2. There might be in the will other words which would control these, and make the words heirs, heirs of the body, etc., words of purchase and not of limitation, and thereby give the estate to the executory devisee. Such words will be more readily looked to in a will than in a deed, and in regard to personal property than in regard to real.. So much I admit; nor need I cite authorities on this point: they may be looked for from the other party. They must, however, be controlling words: see authorities above cited. What words and expressions have been held to be controlling ones it would be idle to attempt here to state, as no words used in this will have ever been held to have such controlling power. The words “heirs of Beverly Randolph” have no such controlling influence; for though he was living, and therefore the word heirs must there mean children of Beverly Randolph, it is not better for complainants than if Beverly Randolph himself had been the legatee; and all the authorities are, that he could not have taken. The gift over to one living is of no controlling force. Most of the bequests where the rule has been held to operate, were to living persons. See Polk vs. Paris, 9 Yerg.
    8. It is not the mere intention of a testator that will prevent the operation of the rule, if he use the words upon which it is founded; for there never is any real doubt of a testator’s intention in one view of the case. To control the rule, he must either expressly declare that it is his intention that it shall not operate, or make some provision that is inconsistent with it. Ho case can be found where one or the other of these things has not been done, or has not been supposed to have been done, that the rule has been defeated. The mere use or abuse of legal terms and expressions in other parts of a will has never been held a ground for giving way to intention against the rule. I challenge the production of any case now deemed authority where this has been done. Ho abuse of the word “heirs” in other parts of the will or in the clause quoted restrains, modifies, or controls the settled meaning of the expressions creating the estate in Peter and Sarah Randolph. Such abuse of the word “heirs” is no declaration of their meaning in the part of the clause under which we claim, nor does it provide any thing at war with that claim.
    4. It is argued that this old lady made a glossary of her own by implication, and that we are to construe this will by her glossary. Certainly she has not expressed any intention to make such a glossary. Let us see if it can be implied; and, if implied, what the argument founded on it is worth. The word heirs is used eight times in the •will; four times in its legal sense, and four times as applying to children of a person in life, leaving its use in that part of the first clause where its use is debateable out of the question. It is improperly used alone in reference to the children of Beverly Randolph, never in regard to Peter or Sarah. It is the simple and ordinary mistake of supposing that a living person could have heirs. All mistake in regard to the meaning of the word heirs, when used in reference to Beverly Randolph’s children, is taken away by the frequent and interchangeable use of the word “children” itself. Not so in reference to Peter and Sarah and the provision for them. Then she did not make a glossary but only a mistake, and that in reference to portions of the will distinct from the clause in question, and a mistake to which no consequence can attach, as she shows the mistake by the interchangeable use of the word children.
    But suppose she did make a glossary, then the glossary will require an interpreter, for it does not adhere to any known laws. It is no key to her meaning, from its uncertainty. In truth this idea of a glossary is a mere speculative attempt to destroy the legal meaning of the clause in question by general guesses at intention. But, as already shown, intention can only have way against rule either by express declaration or proved inconsistency.
    5. Again, the use of words in one part of a will cannot control the use of words in another, or give their meaning unless by express declaration and not by analogy; and this upon authority. In the case of Simpson vs. Smith, (1 Sneed, 396,) Judge McKinney says: “But the authorities lay it down that, in the application of the principle as to supplying words where there is no connection by grammatical construction or direct words of reference, or by the declaration of some common purpose between distinct bequests in a will, this principle will not justify the drawing in aid the special terms of one bequest to the construction of another, although in its general terms and import similar and applicable to persons standing in the same degree of relationship to the testator, and although there is no apparent reason other than the different wording of the clauses to presume that the testator had a different purpose in view.” The same principle is held by Judge Turley in the case of Kay ys. Conner, 8 Humph., 638. See also case of McKay ys. McKay, where the same doctrine is held, my brief in which case is furnished herewith to the Court.
    6. I cannot believe that it would be of much use for me at this time of day to go into all the authorities upon executory devises and the rule in Shelley’s case. I furnish however herewith my brief in the case of McKay vs. McKay, where the authorities are discussed. One of our late cases (that of Bramlet vs. Bates, 1 Sneed, 574) is referred to, where Judge Caruthers says, (being evidently a little restive under the rule,) after recognizing the rule, “ Any superadded words indicative of the intention of the testator to confine the meaning of the words dying without issue to the time prescribed for a good limitation, will be sufficient to control the legal sense affixed to them,” etc. Here “superadded words” is used in the same sense as “controlling words” in the other cases. He refers to a number of cases containing such superadded words, none of which approach the case now in hand.
    It is to be hoped that the Court will not be anxious to disturb the rule in tbis case, when it takes from a widow her only means of support.
   E. B. Fogg, Special J.,

delivered the opinion of the Court.

This is a bill filed to obtain a construction of the will of Mary Randolph, under which all the parties claim title to the negro slaves in controversy. The first clause of the will is as follows:

“I give and bequeath unto my two grandchildren, Peter Randolph and Sarah Randolph, heirs of my son Peyton Randolph, deceased, one negro woman named Ailsey, and her child Fanny, and all their future increase, to them and their heirs for ever. Ailsey and her child are not to be sold for the payment of any of my debts; but if my grandson Peter Randolph should die without issue, I will his proportion of the above property to my granddaughter Sarah Randolph; and if my granddaughter Sarah Randolph should die without an heir, I give her proportion of the above property to my grandson Peter Randolph. It is further my will and desire that if my two grandchildren Peter Randolph and Sarah Randolph should die without an heir of their body, I give Ailsey and her child Fanny, and all their future increase, to the heirs of my son Beverly Randolph, to them and their heirs for ever.”

The will is dated the 17th March, 1827, and the testatrix died in the spring or summer of that year. Sarah Randolph the legatee died in the year 1851, unmarried and without issue. Peter Randolph survived his sister, and took possession of the negro slaves and their increase, sold two of them, and died in 1856, having first made his last will; and bequeathed these slaves and their increase to his widow, the defendant Sarah Randolph, and appointed the defendant D. D. Wendel the executor of his will.

The questions presented for our consideration are, first, is the limitation over of these slaves in the above-recited item of the will to the heirs of her son Beverly Randolph (who is still living) a valid limitation? and, secondly, is it consistent with the rules of construction to refer to the second item in the will, which contains a bequest of all the residue of testatrix’s estate of every description to three of the daughters of Beverly Randolph and any other heir or heirs that he may have at any time before his death, for the purpose of ascertaining the intention of the testatrix in the bequests contained in the first item of the will ?

It cannot be expected that the numerous cases decided upon the subject of executory devises should be referred to or commented upon, or that any attempt be made to reconcile them: this would be a difficult and perhaps an impossible task. In the arguments and briefs of the counsel on both sides, which have been of great ability, many of these cases have been cited and the elementary books referred to, which almost exhaust the subject. ' This examination would be unprofitable, as our own books of reports contain very learned and powerful discussions upon execu-tory limitations; and the alteration of the law by the act of 1851, ch. 2, will in a few years, render it unnecessary to examine the fifty-seven cases alluded to by Lord Ellen-borough in Doe vs. Ellis, 9 East, as having been mentioned by Lord Thurlow in Bigge vs. Bensley, 1 Brown’s Chan. Oases, 700, as having occurred on this head, as well as numerous others since that time.

It may also be unnecessary to discuss the question whether the distinction taken by the English Courts between an executory devise of real and of personal estate, that, in the one case, “ dying without issue made an estate tail of real property, yet that in respect to personal property, which is transient and perishable, the testator could not have intended a general failure of issue, but issue at the death of the first taker.” This was raised by Lord Macclesfield in Forth vs. Chapman, 1 Peere Williams, 663, and sustained by Lord Hardwicke, Lord Mansfield, and Lord Eldon, although doubted by Lord Thurlow, Loughborough, and Sir William Grant. As is said by Chancellor Kent, “there is such an array of opinions on each side, that it becomes difficult to ascertain the balance upon the mere point of authority.” See 4 Kent’s Com., 282, and the notes.

In endeavoring to ascertain the intention of the testator, Judges and Chancellors have sometimes forgotten to pronounce the positive rules of law, which cannot be disregarded without producing a distressing confusion in the administration of the rights of property. In ordinary language, says Mr. Jarmon, (vol. ii. p. 418,) where a testator gives an estate to a person and his heirs, with a limitation over in case of his dying without issue, he means that the devisee shall retain the estate if he leaves issue surviving him,- and not otherwise; and where the phrase is, in case the first taker die before he has any issue, or if he have no issue, the intention probably is that the estate shall belong absolutely to the devisee, on his having issue born. But the established legal interpretation of these several expressions is different; for it has been long settled that words referring to the death of a person without issue, whether the terms be, “if he die without issue,” or “if he have no issue,” or “if he die before he has any issue,” or “for want or in default of issue,” unexplained by the context, and whether applied to real or to personal estate, are construed to import a general indefinite failure of issue, that is, a failure or extinction of issue at any period. A dying without heirs, or heir, or heirs of the body, is construed by the common law, like a dying without issue, to be too remote an event upon which to suspend a limitation. The reason of the rule is, that a limitation to take effect upon an indefinite failure of issue of a person who takes the absolute property is void because it violates the rule against perpetuities, and also that a limitation over of personal property cannot be made to take effect after the expiration of an absolute interest, whether absolute expressly or by implication. In the case of Lepine vs. Ferard, 2 Russell & Milne, 378, 13 Cond. Chan. Rep. 84, it was decided that a gift over of money upon the death of a legatee without issue is void, unless from the words of the will it can be collected that a testator meant a death without issue at the time of the death of the legatee. And in the case of Camplell vs. Harding, same book, page 90, a testator by his will gave to Caroline, his natural daughter, a sum of stock and his house and land at C., with a direction that if she married, the property should be settled solely upon herself and children, but in case of her death without lawful issue, the money so left to her to be equally divided betwixt his nephews and nieces who might be living at the time, and the land at C. to his nephew J. M. Held, that Caroline took an absolute interest in the stock. This case, under the name of Candy vs. Campbell, was affirmed in the House of Lords, and is reported in 8 Bligh., New Series, 469.

In the clause of the will now under consideration there is a bequest of the absolute interest in the slaves to Peter Randolph and Sarah Randolph, to them, their heirs and assigns, for ever: had it been real estate, it would have been a devise in fee simple. The limitation is, that if Peter should die without issue, then his portion to Sarah; and if she should die without an heir — which is equivalent to the words without issue — then her proportion to Peter; and if they both should die without an heir of their body, then over to the heirs of Beverly Randolph. These limitations, without issue, without an heir, and without an heir of their body, without any qualifying words to control them, import an indefinite failure of issue, and the limitations are too remote.

2. In examining the second question, we find the authorities in favor of construing such bequests by the clause of the will in which they are contained. “Upon a review of all the cases,” says the Chancellor, in the case of Campbell vs. Harding, before referred to, “I am satisfied that no authority can be found for going beyond the devise itself, taking all its parts together. I will not be stopped by a colon or a period : if the next succeeding sentence is manifestly a substantial part of the bequest, I shall treat it like an act of Parliament, which has no stops, and read it as a part of the bequest. But I will not go into another branch of the will for the purpose of showing a general intention. Of what use is it to look at intention in these eases? Did any man ever make a will in which he wished that an executory devise should fail? The Court is hound to look to the particular devise, and not to travel out of it in order to find circumstances for restricting the generality of the terms in which the executory gift over is limited.” 18 Cond. Chan. R., 100; 2 Russ. & Milne, 890. In our own Court, the same question has keen substantially decided. Simpson vs. Smith, 1 Sneed, 396, and Hay vs. Conner, 8 Humph., 633; McKay vs. McKay, not reported, decided in this Court December Term, 1852. In the last case, the question arose upon the will of , who left certain slaves

to he disposed of as follows: “I give to my daughter Rebecca McKay two negroes, Hester and Hailey, to remain in her possession during her life, and after her death to he equally divided among her heirs by consent or valuation, and not to he sold.” Rebecca died leaving a husband and certain children surviving her. Three of the children filed their hills against the husband and another child claiming a right to a portion of the slaves. There was this clause in another part of this will: “ I give to my grandchildren, heirs of Sarah McKay, wife of David McKay, one negro girl.” It was insisted that reference might he had to this clause to show that by heirs in the first was meant grandchildren. This Court decided that the other clause would not he referred to, and that the word heir was not a word of purchase, hut of limitation.

We are of opinion that the decree of the Chancellor was correct, and must he affirmed.  