
    *Robert Henry and Wife v. Abram Felder.
    "Where personal properly is given by wilt to the first taker in words -which would give an estate tail or a fee conditional at common law in lands, and is then limited over by way of executory devise to a person in esse, the limitation over is too remote and is void, and the first legatee takes an unlimited estate. Property in South Carolina cannot be limited over beyond lives in being and twenty-one years and nine months. A fee conditional may be created of an annuity. The rule that a limitation over after words which would create an estate tail in the first takers is void, is applicable, though the property be of a perishable nature, as negroes, &c. Neither the limitation to one tn esse, nor the nature of the property so limited by will, can render it valid where it is given after an estate to the first taker, and the heirs of his body.
    This case arose upon a clause in the will of William M’Connico. The testator bequeathed a negro slave to Elizabeth Conlietle, with a limitation over to Mrs. Henry, who was the eldest child of the testator’s daughter, Nancy Connors, and the niece of Miss Conlietle, the late wife of the defendant, Abram Felder. The complainant’s wife was two or three years old at the execution of the will. The words of the will were as follows: “I give and bequeath to Elizabeth Conlie-tle, a negro girl named Dinah, the child of Patt, to be to her and the heirs of her body, lawfully begotten, forever, but, on failure of issue, to go to the eldest child of my daughter, Nancy Connors.”
    Chancellor Thomspson held the limitation too remote.
    “ The words 'heirs of the body,’ in a devise of real estate, create an estate in fee tail, and in the executory limitations of personalty, are on contingencies too remote, and the whole property goes to the first taker; for whatever words would directly or constructively give an estate tail in lands, will give the absolute property in personal estate.”
    The complainant appealed.
    M’Cord, for the appellant.
    I am well aware of the case of Guerry v. Vernon, 1 Nott & M’Cord, 69. That case was decided in conformity with the English rule, and if that rule be applicable to this country, there is no doubt that the limitation in this case is too remote and void. Intenti°n was to prevail, if the intention* is to do an act consistent with law. All the cases of this class in England failed because the intention of testators there was either actually to give an estate tail in personal property, from their habit of giving such estates in real property, thereby attempting to do an act contrary to law, or to give personal property jointly with real property in the same clause without any distinct idea of the law on the subject; and having used technical words to convey a certain description of estates existing in that country, they are not allowed to deny to those words the force which their law gives them. But why should intention be so trammelled here ? We have no estates tail. They never existed in this State. The New York cases do not apply, because estates tail, which existed in that State until their act of 1786 are, by that act, converted into estates in fee-simple; and words that would give an estate tail are expressly declared to give thereafter a fee-simple. Wilkes v. Lion, 2 Cowen’s Rep. 387. “Wilis are individual.” 3 Brod. & Bing. 86, per Dallas, C. J. “ The nonsense of one man is not the sense of another.” Smith v. Coffin, 2 H. Black. 444. “The courts decide on the will of the man and not of other men.” Id. per Bdller. “ Hardly any words are to be found of so stubborn and inflexible a meaning as not to bend to the plain sense of the context.” 13 East. 509, per Ellenborougii. The same words were used in 16 East. 220. “ Cases in the books upon wills may serve to guide us with respect to general rules in the construction of devises in wills; but, unless a case cited be in every respect directly in point and agree in every circumstance with that in question, it will have little or no weight with the court, who always look upon the intention of the testator as the polar star, directing them in the construction of wills.” Per Wilmot, C. J. 3 Wilson, 142. The same words were used by Lord Hardwicke, in Lethieullier v. Tracy, 3 Atk. 782. “ Particular* cases serve rather to obscure and confound than to illumine questions of this kind ; and no case in the books exactly tallies with the present. Therefore the gentleman who have argued this case have acted very properly in mentioning only a few; and have rightly put it on the intention of the testator.” Per Wilmot, in Baddeley v. Leffingwell, 3 Burr. 1541. S. P. m Long v. Laming, 2 Burr. 1112. “Wills must be construed according to the particular words. The circumstances and views of the testator, everything bearing on the subject, must be taken together.” 1 Ball & Beatty, 264. 5 Barn. & Aid. 18, 64. “The state of the family at the time of the execution is to be attended to.” 3 Dow’s P. C. 68. “The object of the court is always to comprehend as many as by fair construction of the will could fall within it.” Id. 74. See Cowp. 841 In Jenkins v. Herries, 4 Madd. the vice chancellor supplied the words “without issue” to complete the intention. Vaughan v. Ferrars, 2 Ves. 186. Ventris, 373. “If he should so long live” were supplied in Corytonu. Hellier, 2 Ves. Sen. 295, by Lord Hardwicke. “The court will read the will according to the intention. 4 Ves. 316. “You need not cite cases : it is a principle.” Per Lord Mansfield, in Morgan v. Jones, Loft’s Rep. 165. In Campbell v. Vaughan, Loft, 268, Lord Mansfield stopped the counsel citing cases, and asked if they were in the same words — “if they are, you have great luck ; if not, you had better confine yourself to the general argument; for it depends on the precise words.” The able counsel in that case in the very next page admitted that every ignorant man, where he uses the words “heirs male or issue male, means the same as sons and no more.” So the words issue and heir sometimes have been held to mean child ox children. In Ludding-ton v. Kime, a leading case, 1 Ld. Raym. 206, the court says, then in common speech, when a man has a son, it is said that he *hath issue; so that it is almost the same thing as if he had said, if Abers Armyn shall have a son. And this is not a strained construction, considering all the circumstances of the case; for in Burchet v. Burdant, 2 Venir. 311, the court expounded the words [heir then living] to be all the one as the word “son.” Let us then read the words of this will according to the intention, and what would they be ? “I give, &c., to Elizabeth Conlietle a negro girl named Dinah, &c., to her for life, and at her death to her children, but if she have no children to go to the eldest child of my daughter Nancy Connors.” This evidently was the intention of the testator, because he aimed to give something to Mrs. Henry who was then in esse, the eldest child of Nancy Connors, and of course known to her grand-father, for whom it most be supposed her grand-father did intend an individual benefit. The rule as to intention was better laid down by Judge Blackstone in Perrin v. Blake, than any where else. Hargrave’s L. T. 589, 595. That intention cannot prevail against established law or fundamental principles of the government, as for instance, to create a perpetuity, &c., which the learned judge distinguished from a supposed rule, that the intention must be consistent with decided cases; for the testator might use words intending differently from a decided case, and yet not violate a fundamental principle oflaw.
    It is said by the chancellor that as the words, if applied to lands, would give a fee tail, they would give a fee-simple in personal property. But the chancellor was wrong in his predicate. For the words, instead of giving an estate tail in real property, would give in this state a fee conditional at common lawr. Crugerw. Heyward, 2 Desaus. Rep. 422. Murrell v. Mathews, 2 Bay’s Rep. 398. Jones v. Postell, Harp. Law Rep. 94. Issue at common law was always construed a word of purchase; but having been used in the statute *de donis to describe an estate tail, after that statute in the English cases it is confined, at least prima facie, to import word of limitation. As that statute was never of force here, this word must, in our jurisprudence, maintain its common law meaning. 16 Johns. Rep. 405. At an early period we are told, not to have issue was understood not to have children, and that confined to the time of the death; as in Son-day’s case, 9 Coke, 127, where, “if he have no issue male were held the same as if the will had said if he die without issue male.” If, previous to the statute, it meant the same as these latter words, then Forth v. Chapman, 1 P. Wms. 668, was an authority to show that these words, if he die. without issue, would give a good executory devise of personal property. 3 Atk. Rep. 288. 2 Yes. Sen. 610, 180, 125. Cowp. 410. 9 Ves. 197, 203. Timberlake v. Graves, 6 Munf. Rep. 174. Gresham v. Gresham, 6 Munf. Rep. 187. James v. M’Wiliiams, 6 Munf. Rep. 301. Cordles v. Cordles, 6 Munf. Rep. 455. 2 Call’s Rep. 313. 2 Munf. Rep. 425. 1 Gilmer, 109.
    But to effectuate the intention in Forth v. Chapman, the same clause, comprehending real and personal property, was held to mean one thing as to the real and another thing as to the personal property. Although the words did give an estate tail in the real property, yet the court held that they gave but a life estate, with an executory devise over as to the personal, merely to prevent the intention being defeated. And after this case, are we to be told of the rule in Fearne and Blackstone, that where the words would give an estate tail in lands, it defeats the intention of the testator as to the personal, on account of his attempting to create an estate tail of that kind of property, by using words which would give such an estate in lands ? Clearly, Forth v. Chapman shews that, even in England, where estates tail do ex*st>* that rule will be controlled by intention. But here, where the rule never existed — where estates tail were never heard of — where the testator could not make an estate tail if he tried, the intention of half the testators of the country are to be defeated, in consequence of a supposed intention to do an illegal act, which act it was impossible for him to do; and to prevent the consequences of an impossibility, his will is declared void and inoperative. He is presumed to have intended to create a perpetuity, which he could not create to save his life, and being supposed to intend such impossibility it avoids his will. But what is worse : to find out this intention they look to a law of a foreign country, which was never of force here, and they first presume that he knew all about such law, and intending to comply with it, expressed himself in the language of such law, and thereby destroyed his will. Such another non sequitur was never dreamed of, but in the common law courts. Previous to the statute de donis, personal property was but of little value in England, and no rule can be shown to have existed on this subject in relation to personal property anterior to that time. It follows generally as an incident to real property, under the same words and conditions. The law of personal property, when it has no rule of its own, follows the law of real property. 2 Kame’s Eq. 333, 334. It was upon this principle that the English rule of construction originated, and whatever would give an estate tail in real, was held to vest a fee-simple in the first taker, because as an estate tail could not be created of personal property, the limitations were void, and therefore the first taker took the whole. It seems undeniable sense that all decisions growing out of a statute never of force in the country fall under the head of cases that are inapplicable to our laws. The statute of 1734, Grimke’s Executors, 71, does not leave us altogether without a rule. *lt expressly preserves the fee conditional of the common law. Lay aside, then, all the English cases since the statute de donis, which take their character from the law of estates tail, and refer back to the common law, and let us see what operation it would have upon this will. It is a mistake to suppose that the right to alienate lands did not exist before the statute of fines in Henry VIL, which is said to be a mere copy of a statute of Richard III. 1 Hallam’s Const. Hist. 12. Indeed the statute de donis was made to protect the issue from the alienation of the ancestor, and would not have been necessary if the right of alienation, under the fee conditional at common law, did not exist. If the right of alienation existed, then there could have been no fear of a perpetuity, which was the true foundation of the rule assumed by the chancellor, deduced by the English from their statute de donis conditionalibus, which precluded all alienation, until the unauthorised decision in the case of Taltarum, in the reign of Edward IV. Devises were allowed in England at a much earlier period than is generally stated in the orthodox writers on the subject. As early as Henry III. property of all kinds could be acquired by gifts, succession, or will. In Reeve’s history of the common law, 217, a conditional gift is described. A freehold and a fee could be raised by a condition out of the same estate ; after the freehold or life estate the fee-simple commenced. Reev. Hist. Com. Law, 218. The statute de bonis was passed, because the judges nipped these conditional fees. Reev. Hist. Com. Law, 400; quarto edit. But before the statute of wills of Henry VIII. it is said, “If one devise by custom (for the fact is the country was governed by various customs as in France to a late date) the common law accepted his intention without requiring particular words of limitation, and as it was in devisees before the statute, there is the same reason *whyit should be so since.” Bridgwater v. Bolton, 1 Salk. 237. S. P. Stephens v. Stephens, select cases, 173. And no case can be produced previous to the statute de donis, which construed the limitations of real and personal property differently, and as these limitations were allowed in wills, if wills were not permitted of real property until the statute of wills, they must have been limitations or conditional gifts of personal property. What the law had been as to real property has been already shewn. The nature of a fee conditional does not tend to a perpetuity. The first taker takes a life estate if be has no issue. If he has issue, the condition is performed, and he takes a fee subject to alienation. If he takes no fee, it reverts. In Britton 93, a devise to a man and his wife, and to the issue begotten by them in lawful matrimony, it is said, nothing would accrue to the purchaser, but a freehold for life, and a fee to their issue. Reeve, 411. There can be no doubt, that if the devise is so worded that the issue take by purchase, and there are none, that the limitation over is good under that class of cases called contingencies with a double aspect; as in Fonnereau v. Fonnereau, Doug. 509. Baldwin v. Karver, Cowp. 313. Gulliver v. Wickett, 1 Wils. Rep. 105. In Jones v. Morgan, Lord Mansfield said he knew of no case of a remainder or conditional limitation over of a real estate, whether the first limitation were by way of particular estate, so as to leave a proper remainder, or to defeat a prior absolute fee by a conditional limitation, but if the precedent limitation, by what means soever, is out of the case, the subsequent limitation lakes place. Preston on Cross Remainders, 71. Avelyn v. Ward, 1 Yes. Sen. 423. Baldwin v. Karver, and Fonnereau v. Fonnereau held the rule applicable to personal property. The rule should apply in all cases where the wo''ds were such that, if applied to lands, *they would give a fee conditional. As to the contingency with a double aspect it is nothing more than the contingency upon which the fee conditional is given. It is given to the first taker in fee, upon condition that he have issue, and if not it goes over by way of executory devise, at the death of the first taker, to the eldest child of Nancy Connors, if anybody should be in esse at the time to take in that character. Instead, therefore, of saying that the words would give an estate tail in lands, and therefore the will is void as to personal property, it should be ruled, that as they give a fee conditional in real property in this State, that if the contingencies of that estate must happen within lives in being, that then, as to personal property the words are such as will give a valid executory devise as to the eldest child of Nancy Connors. This would be preserving analogy in our law.
    In Jones v. Postel, the words of the devise to William Snipes were “to him and the heirs of his body forever.” “If,” says the court “ in the interpretation of this devise, we were to apply the broad rule that the intention of the testator, to be collected from the plain and obvious meaning of the words should prevail, the mind would not hesitate in the conclusion. Indeed, the import of the terms is so pointed, that it is difficult to render it more clear by the substitution of others. It is a clear expression of the will of the testator that the son, William Snipes, should take only a life estate, and that the heirs of his body should take an unconditional fee, and in default of these, that the land should revert to the heirs general of the testator.” In fees conditional the issue only take upon the death of the first devisee. But if there are no issue to take, the freehold, upon which the fee was to have been built (as has been cited from Reeves’ Hist. 219,) determines, and that fee not vesting, the subsequent fee, limited by way of executory devise would immediately vest, and therefore it would not *be too remote ; and whether a case of exactly of a double aspect or not it would be a valid executory devise. Suppose this had been a devise of lands. Miss Conlietle would have taken a fee.conditional, and, upon her dying without issue, the devise over to Nancy Connor’s eldest child (Mrs. Henry) would have been good, because Miss Conlietle would have taken but a life estate, and the limitation over being to take place upon a failure of issue it would be construed a failure of issue at her death, or, in other words, upon condition if she have children, then to them in fee; if she have none, to Mrs. Henry; as in the case of Wellington v. Wellington, 4 Burr. 2165, and Fonne-reau v. Fonnereau. Then suppose the clause comprehended real and personal property, would it be said to be good for one and void for the other, upon a principle directly the reverse of Forth v. Chapman; to defeat rather than effect the intention. See Reeves’ Dom. Rel. 482, 483, 485. In Long v. Laming, 2 Burr. 1106, 1112, the court construed the word issue to mean children to effectuate the intention ; and the devise here might be construed upon failure of children, which would mean, if she have no children, then over to Nancy Connor’s eldest child ; but if she have a child or children, then to them in fee.
    Lord Mansfield, in Long v. Laming, says the rules of construing limitations are different, as to gavelkind lands, from ordinary cases, and that heirs, in such cases, may mean words of purchase. From this authority it is to be inferred that the rule in Shelley’s case did not apply to gavelkind lands, supposing that it applied in any other cases than estates tail, which would not now be mooted ; yet it was very questionable if the rule would apply to land in this State, since our abolition of the laws of primogeniture; our tenures being altogether allodial.
    Another class of cases is, where, the limitation over is to a person in being, it is restricted to the death of the Hirst taker. It can never be a perpetuity while limited to a person in being, because the intention is that the executory devise should vest in the lifetime of the devisee, and it is for these reasons that executory devises were first allowed. Gore v. Gore, 2 Barnard. Rep. 209. Stephens v. Stephens, Select Ca. 171. The word survivor has been sufficient in some cases. Anderson v. Jackson, 16 Johns. Rep. 398, where lawful issue was held to mean children. Pells v. Brown, Cro. Jac. 590. Porter v. Bradley, 3 Term. Rep. 146. Keating v. Reynolds, 1 Bay’s Rep. 80. Massey v. Hudson, 2 Meriv. Rep. 133. In Keely v. Fowler, Fearne, 488, the limitation over was supported, because it was to come back to executors, persons in esse and it was considered personal as to them. This case is thought to be exactly in point (Lyde v. Lyde, 1 Durn. & East’s Rep. 593 :) for if Nancy Connor’s eldest child was not in esse at the time, nobody else could take, and therefore it must happen during the life of Nancy Connor’s eldest child, who was in esse when the will was made, and so stated in the bill. If anybody answering to the character of eldest child could take, then the limitation would be void, as it might not happen for eighty or ninety years after Nancy Connor’s death. For in the case of West v. The Primate of Ireland, 2 Cox’s Rep. 258, where a legacy was left toa person’s seventh child, it was held, that the seventh child having died before the period of payment, the eighth then being the seventh, could not take. And although in Anderson v. Jackson, 16 Johns, Rep. 398, the legacy was considered a vested legacy, yet the word survivor was held sufficient to show it was intended as a personal benefit, to take place during the life of the person to whom the benefit was individually intended. In Jee v. Audley, 1 Cox’s Rep. 324, the legacy was in default of issue of H. to be equally divided between the daughters then living of my kinsman *John Jee. The master of the rolls said that these words intended to take in after-born daughters; it was not to a daughter living at the time of his death, but to any daughters he might have living when tile issue failed, which might not happen for fifty years. He then says, “ if it had been given to a daughter, living at the time of the testator’s death, it would have been very good.” Now, according to the case of West v. The Primate, nobody could take as the seventh child, or the youngest, but such as were bona fide the seventh or youngest. If that case was law, then none but Mrs. Henry could take, as she was living when the will was made, and at the death of the testator, and an after-born child could not take as eldest.
    
    Another class of cases supported the limitation, when the nature of the property was not suitable to a supposition of an indefinite failure of issue. In Keely v. Fowler, Fearne 482, 483, the words were restricted to dying without issue living, from the fact of the property being cows, horses, &c. “Pie said that giving chattels, such as cows, horses, &c., was not suitable to a supposition of an indefinite failure of issue.” In Richardson v. Noyes, 2 Mass. Rep. 63, the court say to the supposition that the testator meant an indefinite failure of issue, as to negroes, &c., “an event which might not take place for a century.” A period when neither the negroes nor the husbandry tools could be inexistence? The supposition is absurd: This view of the subject shows clearly that the event contemplated by the testator, which was to give a right by survivorship, was to happen within the lives of the immediate devisees ; and, therefore it cannot be considered as an estate tail, where the estate continues until there is an indefinite failure of issue.” So in limitations of a term for a life or lives in being. Fearne, 488. In the testator’s will no words of inheritance are attached to the devise over to Mrs. Henry;* a circumstance to show that it was intended for the individual. The court, in Richardson v. Noyes, say, “in construing language, the customs, manners, habits, or laws relative to the subject matter of it, are to be taken into consideration.” Where the words have two meanings, that should be given to it, which is most reconcilable to the nature of the property. Target v. Grant, Gilb. Eq. Rep. 149. 16 Johns. Rep. 402. And. as to personal property, the words are to be taken in the vulgar sense. 16 Johns. Rep. 430. Cowp. 410.
    Chappell, for Felder, Submitted the case without argument.
   Curia, per Colcock, J.

This case has been kept under advisement for some months, not because the court entertained any doubt upon the subject, but because a deep interest seemed to have been taken in the case which had led both the counsel and the party into an elaborate discussion of the subject, and on the part of the former, a bold and direct attack upon what he admits has been the long established doctrine on the subject, in the course of this discussion, much learning and research have been displayed. But similar efforts have been repeatedly made in cases, in all their important particulars, like the case before us.

We cannot pretend to be more wise than our predecessors, and we consider ourselves as bound by the authority of decided cases; and more imperiously bound by the principles established from the earliest system of jurisprudence. If we adhere to these, the case can admit of no doubt.

The words of the will under which the complainant claims are, “ I give and bequeath to Elizabeth Conlietle a negro girl named Dinah, the child of Patt, to be to her and the heirs of her body lawfully begotten, forever;* but on failure of issue, to go to the eldest child of my daughter Nancy Connors.” And the complainant sets forth that he intermarried with the said Nancy Connors, who was alive at the time of the making of the will, and the death of the testator.

On the part of the complainant it is contended, first, that it is clear the testator meant, if Elizabeth Conlietle died without issue alive at the time of her death, that Nancy Connors’ eldest child should take, and that the intention of the testator is to prevail against all technical construction. Secondly, as she intended a benefit to a person in esse, it is clear that she did not mean to erect a perpetuity by which she must have been excluded from any benefit, and that such intention should restrict the operation of the generality of the words, heirs of her body forever.” Thirdly, that the doctrine, that where an estate tail would be created in a personalty, it shall vest in the first taker, has been built on another doctrine not known to our law, and therefore the first taker ought not to take absolutely, but only a life estate. Fourthly, that as the property was in its nature perishable, the testatrix could never have intended to create a perpetuity.

To this it was replied on the part of the defendant.

First. That the limitation over was too remote, and consequently void, it being after an indefinite failure of issue.

Second. That whatever the testatrix may have intended, she had by her will created a perpetuity.

Third. That it has been uniformly decided that where the words were such as would create an estate tail in real property, that when applied to the property so devised, it should vest absolutely in the first taker.

I shall not observe the order which has been pursued in the course of the argument, for though it may have been the best for that purpose, I do not think it the best *for decision. It is not our duty to say what the law ought to be, or how it could be amended ; but to declare what it is. It is not a difficult task to present strong objections to many of the rules of law, but when we take the whole as a science, it will be found dangerous to lend too ready an ear to plausible objections to particular parts of it. There is no science without its arbitrary rules, for such are all first principles; and that which is so loudly complained of in this case will be found to be based on public policy, which must be permitted at all times to prevail over individual convenience.

The law abhors perpetuities, as having a tendency to tie up property in the hands of particular families, and prevent it from producing those beneficial effects which would result from a free circulation of it. It has therefore declared that where personal property is limited over upon any contingency beyond a life or lives in being and twenty-one years, that such limitation shall be void. And to this effect is the first rule laid down by that admirable writer Fearne, in p. 444 (7th Lond. Edit.) to which has been added, as a useful and valuable introduction to the subject, an extract from Lord IIardwicke’s argument in Wicker v. Mitford. After laying down the rule that whenever an executory devise is limited to take effect after a dying without heirs or without issue subject to no other restriction, the limitation is void j he proceeds, “ when executory devises were first permitted it was foreseen that entails made in that form could not be barred by fines and recoveries. If they were of real estate, the executory devise could not be barred by fine, because the title of the executory devise is not through, or as privy to the immediate taker, but quite independent of him; nor could the executor}’ devisee be affected by a recovery, it being long settled that the recompense which in the supposition of law is the ground of barring the issue in tail and those in remainder and reversion, *dotb not extend to an executory devise. If they were personal estate, whether chattels real or personal, from the nature of the property they could not be the subject of either fine or recovery. Entails by executory devise being thus exempt from any legal mode of barring them, it became necessary to prescribe bounds and limits to this new species of settlement, lest otherwise entails should obtain a longer duration, through the irregular and rarely permitted medium of executory devise, than the law endures where the entail commences in the regular way by creating estates for life and estates tail with remainder over. Hence originated the. rule both in law and equity, that the contingency on which executory devises depend, should be confined to a stated period. And by analogy to the case of strict entails which cannot be protected from fines and recoveries longer than the life of the tenant forIife in possession and the attainment of twenty-one years by the first issue in tail, it was at length settled that the longest period for vesting of an executory devise, should be any’life or lives in being and twenty-one years after; to which may be added a few months more to the case of a posthumous child. Therefore every contingency which is not such that if it ever happens it must necessarily he within the period so described, is too remote for an executory devise. The consequence is that it is not lawful to limit an executory devise on a general and indefinite failure of issue : namely, a failure of issue of the person named whenever it happens, he the time of the event ever so distant. It is equally a consequence of the rule that if the failure of issue is restrained to the death of any’ person or persons actually living, or to a period not beyond a life and lives in being and twenty-one years, (with a few months beyond,) then the contingency is good and the executory devise has its full effect. Perhaps if the doctrine of executory devises were res integra* and now to be settled, it might be thought a sufficient and more just check of them to hold, that they should be good as far as the given period, whether the contingency was too largely and widely expressed or not. But our ancestors have not left usa choice, it having been long a fixed rule, that if the contingency is too remote the executory devise dependent upon it shall not be merely void so far as it exceeds the line prescribed, but shall wholly fail.” I have made this long extract with a view to prevent the necessity of referring to other authorities, as herein is to be found the essence and the origin of the rule.

But in addition to the rule that a limitation over after an indefinite failure of issue is void, is another equally imperative, which operates against the complainant’s claim, that neither a fee conditional at common law nor an estate tail can be created out of a term for years in any personal chattel (except in the instance of annuity.) 1 Bro. 273. Hargrave’s Co. Litt. 20, and Fearne, 345. In referring to Fearne, it will be found that in addition to the case of Stratton v. Payne, 3 Bro. Parl. Ca. 257, he refers to Pelham v. Gregory, 5 Bro. Parl. Ca. 435, and the Duke of Montagu v. Lord Beaulieu, 6 Bro. Parl. Ca. 255. And he succinctly lays down the rule, “that the limitation of personal estate to one in tail vests the whole in him, is proved by many cases,” and refers to those above mentioned. With equal accuracy, but descending more into particulars, this rule is thus expressed by Roper in his treatise on the law of Legacies, 2d edit. p. 393. If personal estate be given by testament to A. and the heirs of his body; as such words would create an express estate tail in the freehold lands, if applied to them, so in personal estate, if applied to it, such words will have the effect to vest the absolute interest, because such property cannot be entailed, i. e. the first taker will have the absolute interest in the bequest; and the remainder *or executory limitation to the heirs of the body, and the subsequent limitations, if any, depending upon the failure of them, will be of no effect. It will make no difference in regard to the construction, that the interests or profits only are given to the first taker, and the principle to his heirs.” The cases are all collected by Roper, but I shall refer to only two of those mentioned by Fearne. Seale v. Seale, 1 P. Wms. 290, where one devised that all his money in the government funds should be laid out in the purchase of lands, and settled on his eldest son A. and the heirs male of his body, remainder over in the same manner, the lord chancellor said, that the personal estate, viz: the residue, after what was to be laid out in the purchase of lands, could not be entailed, but the whole vested in the eldest son. So in the case of Butterfield v. Butterfield, 1 Ves. Sen. 133, the testator by his will devised, that £400 should be put on good security for his son T., that he might have the interest of it for his life and for the lawful heirs of his body ; and if it should so happen that he should die without heirs it should go to his (testator’s) youngest son, J. B. Lord IIardwicke decreed, that the whole vested in the first taker, and the limitation over wms too remote. A case which is in point to its very letter.

But it is said, that, notwithstanding these rules of law, the intention of the testator is the polar star by which the judges are to direct their course, and such intention shall ride over all the rules of law. And the words of Lord Hardwicke, in Cowper v. Cowper, 2 P. Wms. 748, are relied on in support of this position. Much has been said on this point, and it must be admitted that much of what has been said has been, to say the least of it, most injudiciously applied. To extract the language of a judge in reference to one law, and apply it to another which is materially different, is to pervert the meaning of judges, and to abuse common sense. Now, Lord *Hardwicke does say, in Cowper v. Cowper, that the intention of the testator must determine the effect of the limitation, especially in wills, where the intent overrules the legal import of the words, be they never so express and determinate. But this language was applied to certain restrictive words, which he said controlled the meaning of the preceding words; and that although, with regard to them, if standing alone, such a rule of law could operate, yet, that such rule of law could not operate to restrain the manifest intention of the testator, expressed by the subsequent words. And in this he was certainly correct. Now, if there were any restrictive words in this will, the complainant would be entitled to the benefit of Lord Hardwicke’s opinion. But Lord Hardwicke never said, that a man, by his will, could create a perpetuity, or limit an estate after an indefinite failure of issue, or create an estate tail in personal property. Lord Hardwicke decided the case of Butterfield v. Butterfield, and if he had thought the language used in Cowper v. Cowper applicable, would no doubt have applied it. There is something so apparently absurd in the idea, that a man, by his will, shall overturn the established doctrines of law, that it does seem to be an unncessary expenditure of time and labor to enter into any refutation of it; and it is saying but little on the subject, to introduce the opinions of judges in particular cases (as has been done in the written argument,) unless the cases themselves bore some analogy to the case before us. If a testator give to one in such words as would create a fee, but immediately after by other words shew that he did not mean to give such estate; although the words might have carried a fee, yet the subsequent words may, and sometimes do, control their *operation; and it is in such cases only, that the expression is applicable, that the intention overrules the law. And I here admit, what has been forcibly urged, that the court will always lay hold of any subsequent restrictive words to carry the intention into effect — in other words, will suffer the intention to prevail, if it be not contrary to law.

If the testator had used any words indicative of an intention that the property should go over at the death of the first taker without heirs, it might so have passed; for then the general words “heirs of her body forever” would have been understood to mean heirs of her body at her death, and not to a perpetual succession. It is contended that this intention is implied from two circumstances, and that it is as sufficient as if it had been expressed. As I do not wish to enter further into the field of controversy on this difficult doctrine of the law than I am compelled to do, I will say nothing about that sort of implication which is to be considered as equivalent to an express intention, but shew that the two circumstances relied on cannot, and do not, operate to control the generality of the words in the first part of the clause. The first circumstance is, that the property limited is of a perishable nature. But although it is of a perishable nature, it is also of a productive nature, and there .may be an increase which would keep pace with the heirs of the first taker. But suppose the property given had been a man, yet he may have lived for a longer time than a life or lives in being .and twenty-one years.

The second circumstance relied on is, that the limitation i.s to one in esse, and that the testatrix, therefore, meant a present interest, an interest to take place at the deathof the first taker. But the remainder woman may live sixty years, and then the heirs of the first taker might be extinct, and she would then take if the limitation* be supported. So that the limitation to one in esse or the nature of the property do not restrict the operation of the generality of the words “heirs of her body,” so as to bring them within the case of Cowper v. Cowper. But what must be conclusive on the subject is., that the case put in all the books to illustrate the rule, is of a limitation over to one in esse.

I shall conclude the case with a reference to some of our own decisions on the points. The case of Guery v. Vernon, 1 Nott & M'Cord, 69, in which the opinion of the court was delivered by Mr. Justice Che.ves, settles the case before us, and nothing but respect to the parties, and a consideration, that such cases seldom occur, would have led me into any further or other observations than those contained in that case. I have considered the case in reference to the two rules, which are distinct, and they are so expressly stated by Fearne, in page 460 (7th Lond. Edit.,) where he lays it down as the third rule, that an estate tail cannot be created in personal property, and he discusses at length, as connected with the subject of executory estates limited on a failure of heirs or issue. The counsel in his-argument complained .of the rule, as having arisen from the doctrine of estates tail, which he said was never the law here. But he is mistaken in this idea, for the rule-was known to the common law long before the statute dc donls.

The case may have been decided without any reference to it. For whether the estate given by the will to the first taker be given for life, or absolutely, if the bequest is limited over through an indefinite .failure of issue, the consequence is the.same.

Decree affirmed. 
      
      
         An argument furnished by the complainant himself (Professor Henry) on the force of intention, relying principally on Cowper v. Cowper.
     