
    [Lancaster,
    May 31, 1828.]
    
    EICHELBERGER against BARNETZ and others.
    CASE STATED.
    Bequest to testator’s grandson, A. E., of a sum of money; “ and if he should die without issue, then the part, as willed to him, is to .fall to my heirs back, to be divided amongst my children, as in my will is mentioned, share and share alike.” The bequest over is good, and A. E. cannot recover of the executors without securing the legatees over.
    Amicable scire facias to revive a judgment, in which a case was stated in the nature of a special verdict.
    The recovery of the original suit was had upon a statement for the first instalment of a legacy of fifteen hundred pounds, bequeathed, by 
      Frederick Eichelberger, deceased, to the plaintiff The interest due on the judgment was paid to the plaintiff before the entry of this scire facias, and the. defendants offered to pay the. principal, if the plaintiff would give reasonable security to refund the same, in case he should die without issue, which security the. plaintiff refused to give! If the plaintiff .is legally bound to give security as aforesaid, then judgment to be given in favour of the defendants, to bar'recovery of the principal until security be given. If the plaintiff is not bound to give security, then judgment to be entered for the plaintiff generally.
    ■ By the will of Frederick Eichelberger, deceased, Charles Ai Barnetz, one of the executors, was appointed trustee to' receive all the monies in anywise bequeathed to the children of Daniel Eichelberger, of whom two were min'ors. The other two executors were also trustees as to the estates willed to Sarah'Lutman and William Eichelberger. In the record of the original judgment, these trustees were all made parties in the eause¡ The lands of the testator, were devised to the said trustees.
    The clauses in the will of Frederick Eichelberger, under which the question arose, were as follows: ■
    
    “Item.-; — I give and bequeath to my grandson, Abraham Eichelberger, son of George Eichelberger, deceased, the sum of fifteen hundred pounds, the sum which his step-father, Martin Eichelberger, has in his hands, nine hundred, dollars already of which his mother is to have the interest during her natural life, and, after her, decease, to be considered as a vested legacy to come to him; and it is farther my will, that, if my grandson Abraham should die without issue, then the part, as willed to him, is to fall to my heirs back to be divided amongst my children,.as in my will mentioned, share and share alike.
    “ I also direct my executors, in case the money willed to the legatees should not reach t.o. pay them their respective shares, then it is my will and meaning that all my land, now in my possession, be equal valued and divided, to be laid on every acre to make up the sum I willed to my legatees, and their money to be paid in eight equal yearly payments, without interest.”
    
      Barnetz, for the plantiff in error.
    The legacy over is good. Fosdick v. Cornell, 1 Johns. 440. The dying without issue is restrained to the death in the case of personalty. 1 P. Wms. 564. 534, 666.
    
      Lewis-, contra,
    
    cited 16 Johns. 400.
   The opinion of the court was. delivered by

Gibson, C. J.

A chattel cannot be entailed; and where it is bequeathed by words which, if used in reference to land, would vest an express estate tail; the interest passes absolutely. But, in regard to words that would vest an estate tail by implication, a diversity has been attempted, and sometimes apparently with success.- There, it has been said, the contingency of dying without issue is, in no case, too remote to supports limitation over by way of executory devise, the words dying without issue being taken in the popular sense. And the reason given for the distinction seems extremely plausible; the words dying without issue being taken, it is said, to import an indefinite failure, in respect to real, estate, in order to create an estate tail in favour of the issue: whereas, such a construction, in respect of a chattel, cannot benefit them, because a chattel cannot descend to them. But this distinction, although recognised in Target v. Gaunt, (1 P. Wms. 433,) Forth v. Chapman, (1 P. Wms. 667,) and Atkinson v. Hutchinson, (3 P. Wms. 239,) has undoubtedly been exploded since; but for-what cause it is not easy to say, except, perhaps, ásense of the practical inponvenience of such limitations in respect of chattels. Yet, on the other hand, we find the judges eagerly catching at accidental words, such as “leaving,” behind him,” &e.; and from these, endeavouring, by forced conceits and flimsy distinctions, to support them. In the will before us, we are relieved from the necessity of catching at straws, by a circumstance.which proves incdntestibly that such a contingency was meant as would necessarily happen within a life, or lives in being. It is in this clause: And it is further my will, that if my grandson Abraham should die without issue, the part, as willed to him, is to fall to my heirs back to be divided amongst my children, as in my. will mentioned, share'and share alike.” Here the contingency was contemplated to happen in the lifetime of the children, which is not too remote, even in the case of real estate. The limitation over is therefore good, and the plaintiff is consequently not entitled to recover without securing the legatees over.

Huston, J., dissented.

Judgment for the defendants.  