
    Hill v. Burrow.
    [Thursday, April 28, 1803.]
    Wills — Construction—Estates Tail- -Docking. — Devise ol lauds to T. H. to Mm and his heirs forever; hut, in case T. H. dies without a lawful heir, remainder over to R. H. and his heirs forever, created an estate tail in T. H. and consequently is barred by the act of Assembly for docking' entails.
    In ejectment brought by Hill against Burrow, for a tract of land, the jury found a special verdict, stating, that Richard Hill made his will on the 3d of October, 1774, whereby he devised the lands in the declaration mentioned, as follows : “I give and devise .to my son Thomas Hill, all my lands on the north side of Nottoway river, in Sussex county, to him, his heirs and assigns forever, as also my lands in Brunswick county, to him and his heirs forever; but in case my son, Thomas *Hill, dies without a lawful heir, my will and desire is, that the tract of land, in Brunswick county only, should descend to my son Richard Hill and his heirs forever. ” That the testator died in the year 1775. That Thomas Hill entered on the lands; and, in February, 1779, conveyed them to Willburne. That the said Thomas Hill died in 1795, without having been married, and leaving at the time of his death no lawfully begotten child, or children. That the plaintiffs are the heirs of the said Richard Hill, the younger, the devisee, in the said recited clause of the will mentioned.. That the defendant holds under the said William Willburne. The District Court gave judgment for the defendants; and the plaintiffs appealed to this Court.
    G. K. Taylor, for the appellant.
    The question is,, whether the devise over was good, and took effect, upon the death of the first devisee without issue? The words, a lawful heir, confine the contingency to the time of the death of the first devisee: which is a reasonable period, and within the rules concerning executory de-yises. The law has undergone a considerable change upon subjects of this kind. After the statute of Hen. 8, concerning wills, the Judges, for the sake of alienation, usually inclined to construe the bequest to be an entail, instead of an executory devise; but, not having the same motive for it in personals, they soon established a different rule, with regard to" them. Fearne on Rem. 182; and, therefore, in Pinbury v. Rican, [1 P. Wms. 563] ; Atkinson v. Hutchinson, 3 P. Wms. 258; and various other cases, the slightest expressions, as the word leaving, &c. were held sufficient to confine the devise to a period which the law would endure, notwithstanding the old doctrine, that there could be no limitation over of a chattel, after a precedent gift of it for life. The same doctrine was recognized and supported in Dunn v. Bray, 1 Call, 328. It is true, that for a long time, a distinction prevailed between cases where the words were applied to personal estate, and where they *were applied to lands. In the first, the limitation over would be supported, but not in the last. Forth v. Chapman, [1 P. Wms. 663;] and Hughes v. Saj'er, [1 P. Wms. 534]. This distinction, however, is now exploded; and, at this day, the same construction prevails, whether the words relate to lands, or personal estate. Porter v. Bradley etal., 3 T. R. 143; Roe v. Jeffery, 7 T. R. 589. These cases prove, that the doctrine is clearly so in England: and there is the same reason for it in this country: Perhaps, the reason is even stronger for it here, than there; because, there, the entail supports the devise, and effectuates the intent to a degree throughout, inasmuch as the remainder will be good after the entail is spent; but, here, if it be not taken as an executory devise, the remainder fails altogether. There is, in reason, no distinction between dying without a lawful heir, and dying without leaving a lawful heir. But, the cases just read shew, clearly, that, in the latter case, the limitation would be good; and, therefore, it is so in the former. The words in the present case aré equivalent to dying without a child. For, the limitation is to Richard Hill, the brother; so that Thomas could never die without an heir, whilst Richard, or his descendants were living. This proves that an heir of the body, that is, a child, was clearly meant: Which brings it within the influence of Higgen-botham v. Rucker, 2 Call, 313. The case is not stronger than that of Brewer v. Opie, 1 Call, 212; for, there, the words were lawful heir, only; which were more indefinite than the expression made use of here; as that seems to tie it up to an individual who had come into existence at the time of the death of the first devisee. The same kind of expression is used in the succeeding clause, relative to the devise of the slaves; in which, all the cases agree that the limitation over is clearly good; and, therefore, it is fair to infer that the testator meant the same thing, with regard to the devise of the lands.
    *Robertson, contra.
    The devise, according to the existing law at the time of making the will, created an estate tail clearly. The authorities in support of this position are numerous ; but I shall content myself with referring the Court to a few distinct examples. Fearne on Rem. 322, 350, 170, old ed. ; 1 Wash. 71; [Hunters v. Haynes]. These cases appear to me to establish the doctrine uniformly to be, that a limitation upon a general dying without an heir, which is the same as dying without heirs, creates an estate tail: and of course Thomas Hill, the first devisee here, only took an estate tail: Which, by the operation of the act of 1776, [9 Stat. Rarg. 226,] for docking entails, was turned into a fee simple, and the remainder to Richard destroyed. Carter v. Tyler, 1 Call, 165. The cases cited in opposition to this doctrine, do not impeach it. The passage quoted from 2 Fearne, 182, related to personal estate only, and consequently, does not apply: Besides, there were restrictive words in that case; which tied up the devise to a reasonable period. In Porter v. Bradley et al., 3 T. R. 143, the word leaving had the same effect. Roe v. Jeffery, 7 T. R. 589, differs essentially from this in many circumstances; particularly the word leave was decisive. The cases of Higgenbotham v. Rucker, 2 Call, 313, and Brewer v. Opie, 1 Call, 212, are not like that before the Court; and, therefore, afford no argument in favor of the appellant. It is not true, that the same words applied to real and personal property will receive the same construction ; for, the contrary has been expressly held. Forth v. Chapman, 1 P. Wms. 667. The judgment is, therefore, right; and ought to be affirmed.
    Hay, in reply.
    Cases upon wills are not material, unless precisely similar. [Kennon v. M’Roberts et ux.,] 1 Wash. 103: And in the present case, I may fairly say, in the language of Judge Buller, [in Doe v. Dyde,] 1 T. R. 596, “nothing can raise a doubt about the construction, except overwhelming it with a multitude of cases.” I shall, therefore, consider the cases upon principle only: And my first proposition is, that the intention *of the testator is alone to be consulted, and will be carried. into effect, unless he wishes to create an estate, or to annex a condition which cannot legally exist. 1 Wash. 102; 2 Black. Com. 381; 1 T. R. 597. Here the intention is clear, even beyond controversy; for, it is not controverted. The testator intended to make a provision for Thomas and his family, but, if he had no child, then to give his estate to Richard, [Pinbury v. Elkin,] IP. Wms. 665; where the expression is not stronger, than in the case before the Court. This intention of the testator may be carried into effect, without violating any principle of public policy, or creating an estate forbidden by láw. And, therefore, it ought to be done. The second proposition which I assume is, that where words in a deed or will are susceptible of two constructions, that shall be preferred, which tends, to make it good. [Atkinson v. Hutchinson,] 3 P. Wms. 260. Admit then, that the words, “if my son Thomas dies without a lawful heir,” are susceptible of two constructions, one an immediate, the other a future failure of issue, the first ought to be preferred; because, under that construction, the intention of the testator, as to both the devisees, is fulfilled. Por, Thomas would have a fee simple, and, if he died without an heir, Richard would take the property. Whereas, if the second construction be adopted, Thomas will have an estate tail, which the testator never meant to create. But, the words do not admit of two constructions: Por, the words, “if Thomas dies without a lawful heir,” mean if he has no child living at his death. 1 P. Wms. S65. The third proposition which I shall contend for is, that real and personal property, as to limitations of this kind, stand upon the same footing; and that words of limitation applied to real property, will have the same construction, as if applied to personal estate. The case of Porth v. Chapman, is objected; but the doctrine there laid down is contrary to common sense. 3 T. R. 146; [Hockley et ux. v. Mawbery,] 3 Bro. C. C. 82.
    *The progress of the Judiciary, upon subjects of this kind, is worthy of notice. Originally there could be no limitation over of a chattel. 2 Black. Com. 397. After this, a distinction was taken between the devise of the use, and a devise of the thing itself. This, however, was afterwards exploded. But still, if words of inheritance w'ere applied to the first devise, the absolute property vested in the first dev-isee. This, at length also began to give way; and, if the limitation was to take effect within a life or lives in being and twenty-one years afterwards, it was held to be good. Pinally, it was settled, that as to chattels, the Court would catch at any circumstance to support the limitation over, 2 Pearne on Rem. 239; [Dunn et ux. v. Bray,] 1 Call, 338; and why not in the case of land? A distinction is impossible. The words are now taken according to common parlance: [Nichols v. Hooper,] IP. Wms. 199, 565; and [Hyde v. Hyde,] 1 T. R. 593, 596; [Atkinson v. Hutchinson,] 3 P. Wms. 260; [Goodtitle dem. ; Peake v. Pegden,] 2 T. R. 720; [Porter v. Bradley et al.,] 3 T. R. 143, are decisive of the liberality of the law, at the present dajr.
    Robertson. All the cases prove that a limitation, after an indefinite dying without heirs, is void, as an executory devise; and that there must be some circumstances to tie up the limitation to a reasonable period of time, otherwise the first estate will be either construed an entail, or the limitation over will fail on account of the remoteness of it. The cases cited on the other side, do not disprove this proposition. 1 P. Wms. 565, was the case of personal property; and, therefore, has no application. 3 T. R. 146, instead of opposing, admits the principle contended for by rne. 7 T. R. 589, had the words leave no issue, which tied it up; and that was corroborated by the direction that it should be and return to the survivor or survivors. 3. Bro. C. C. 82, was influenced by the words to divide, &c. which confined it to a definitive period. The cases in 2 Pearne, 239, and that of Dunn v. Bray, 1 Call, 338, related to personal estate; besides, in the latter, the word leave tied up the limitation. It is not material that the word heir is used ^instead of heirs; for, there is no distinction between them. King v. Burchell, [Amb. 378; 1 Eden, 424;] Fearne, 124. To this I add, that the doctrine contended for, leads to the establishment of perpetuities; and, therefore, ought to be rejected.
    Cur. adv. vult.
    
      
      Wills — Construction — Estates Tail — Docking.—On this question, the principal case is cited in Tate v. Tally, 3 Call 359, 361, and note; foot-note to Callis v. Kemp, 11 Gratt. 78; Eldridge v. Fisher, 1 H. & M. 562; Broaddus v. Turner, 5 Rand. 311; Thomason v. Andersons, 4 Leigh 123; Wilkins v. Taylor, 5 Call 156; Newby v. Blakey, 3 H. & M. 60; Dilliard v. Tomlinson, 1 Munf. 203; Colemans v. Holladay, 6 Munf. 60; Tidball v. Lupton, 1 Rand. 204; Goodrich v. Harding, 3 Rand. 282, 285; Bells v. Gillespie, 5 Rand. 282, 300; See v. Craigen, 8 Leigh 452; Tinsley v. Jones, 13 Gratt. 293, 298 (see foot-note). See also, foot-note to Carter v. Tyler, 1 Call 165.
    
   ROANE, Judge.

This is an action of ejectment, and the question depends upon the construction of the will of Richard Hill, (dated 3d October, 1774,) who died in the year 1775.

The clause on which the question turns, is to the following effect: “I give to my son T. Hill, all my lands on the north side of Nottoway river, in Sussex, to him and his heirs and assigns forever, as also my lands in Brunswick to him afd his heirs forever; but, in case he dies without a lawful heir, my will is, my lands in Brunswick only, (the premises in question,) should descend to my son Richard Hill and his heirs forever, as also the following slaves, &c.”

Similar dispositions are also made to his two sons, Green HiU and Richard Hill, with precisely the same limitations over to Thomas Hill and his heirs forever in both cases. I infer from this latter circumstance, that Thomas Hill and his family were rather favorites of the testator.

Another disposition is made to his daughter Rebecca, of slaves, &c. and if she died without a lawful heir, or under twenty-one, her slaves, &c. to be equally divided among the remaining children.

Thomas Hill, having died in 1795, without having been married, or leaving lawful issue at the time of his death, the question arises under the clause just stated, what estate the said Thomas Hill took in the premises.

*The counsel for the appellants, finding their cause desperate in any other view of the subject, relied strongly upon a supposed decision of Lord Kenyon, shaking the authority of Porth v. Chapman. That they could have found any grounds for such an attempt, I confess, surprised me. Not fully acquainted with the merits and character of that Judge, I yet thought it strange, that he who has been profuse in his admiration of Lord Holt; who has diverged from the liberal decisions of Lord Mansfield; who has declared, in appropriate and emphatical terms, the duty of a judge to be dicere et non dare jus, should be prompt at innovation upon the settled rules of property.

But, in fact, the case relied on by the gentlemen does not bear them out: The determination, therein imputed to that Judge, is afterwards disavowed by him, as a Judicial opinion, in Roe v. Jeffery, 7 T. R. 595; and the distinction taken in Forth v. Chapman, is admitted, and acted upon by him in a subsequent case of Daintry v. Daintry, [6 T. R. 307].

This supposed, and single, deviation from that case, being thus removed, it is unnecessary for me to quote instances from the books, wherein its authority has been often and solemnly recognized. •

In Forth v. Chapman, it was decided, that if freehold and leasehold lands be devised to A. and if he die leaving no issue of his body, then to the daughter of his brother, and children of his sister, this devise should be expounded to imply an indefinite failure of issue as to the freehold lands, and be restricted to issue, living at the death, as to the leasehold, and the words be considered as if they had been repeated by two several clauses.

The object of the gentlemen was to explode the distinction, as relative to freehold lands.

*The reason of this distinction is, that the words are so understood in relation to real estate, in order to create an estate-tail in favor of the issue, who are capable of taking an inheritance, but, with respect to a term, that construction cannot benefit them; for a term cannot descend to them. 2 Fearne on Rem. 231: Notwithstanding, however, this diversity, from whence may be inferred a general difference of intention, as relative to the two subjects, yet it has never been held that a restrictive construction shall take place, even in relation to chattels, unless there be a particular intention inferable from the will favoring such construction. Slight circumstances, indeed, have been laid hold of to produce this effect, such as the words, “leaving,” “then,” “a limitation to a person in esse for life, &c. ” but yet there must be some such.

I lay it down, then, as an incontrovertible position, that words importing a limitation in tail are taken in their legal sense, as to real estate, under circumstances in which they would be taken in their vulgar sense as applying to chattels; and, that when they are taken in the latter sense, as applying to the latter subject, it is not from the general intention of the testator inferable from the diversity just stated; but, from a particular intention appearing in the will itself, coming in aid of the former.

Bearing in mind this distinction, and the ground of it, let us examine the present case.

If the subject of the devise in question had even been personal estate, I see no grounds whereon we could restrict the limitation to mean issue living at the death. The words of the devise are appropriate and emphatical, to import an estate-tail,- and there is an absence of all words, such as leave, then, &c. which have frequently been resorted to, for the purpose ■ of inferring a particular intention.

*Great stress is, however, laid upon the expression if he die without a lawful heir, as indicative of an intention to restrict: But, there is nothing in it. Those words standing singty, are fully competent to convey an estate in fee, or tail, with, reference, as the case may be, to the person in remainder; that is, whether he can be a collateral heir or not.

The word'heirs or heir is' nomen collec-tivum. No case is recollected, where the distinction now set up was taken. The case of Goodtitle v. Pegden, 2 T. R. 720, was as to this point, substantially like that before us. “Lawful heir,” was there construed to mean, issue of his body; and it is believed that, if issue were substituted in this will, the objection would not have been made. In that case, it is true, the words were considered as restricted, and the limitation over good: But, the word leaving, was also there, and the Court in their opinion laid no stress upon the word heir being in the singular number.

If it be said, that the expression in our case is tantamount to the words not leaving: I answer, that it is equipollent, at most, to the expression not having: which is considered by Lord Kenyon in Weakley v. Rugg, 7 T. R. 326, as essentially different from not leaving.

It is observable also, that in the devise of slaves to Rebecca, the testator not only omits the'words to her and her heirs for ever, but as the contingency of her dying under 21, a circumstance denoting restriction, and limits the remainder to be equally divided among the remaining children : Thereby, perhaps, throwing the case of this bequest within the reason on which the cases of Hughes v. Sayer; Nichols v. Skinner; Higgenbotham v. Rucker, and others, are decided.

*But, the subject of the present devise is not personal estate, but land. As to this subject, the general intention is in favor of an estate tail. The words used are entirely adequate to that purpose; and, there are no grounds whereon to infer a particular contrary intention, but the converse; such as the different phraseology used in the bequest to his daughter Rebecca, and the circumstances before stated, shewing Thomas Hill and his family, to have been favorites of Ihe testator. I am, therefore, of opinion, that the judgment ought to be affirmed.

FLEMING, Judge.

The first part of the devise to Tho’s Hill and his heirs was turned into an estate tail by the subsequent words in case my said son Tho’s Hill dies without a lawful heir; for, the latter words plainly mean an heir of his body, as he could not die without an heir whilst his brother Richard was living. But, it is said, that the words dies without a lawful heir, meant if he died without leaving issue at the time of his death. There is, however, a distinction i-n this respect between lands and personal estate: In the latter, the words are taken in the vulgar sense, but in the former, the legal sense prevails; that is to say, they are construed to mean a failure of issue generally. [Dean v. Shenton,] Cowp. 410. It is true that Lord Kenyon in Porter v. Bradley, 3 T. R. 143, appears to have hesitated at the distinction; but, the doctrine is too fully established to be overturned by a single decision. The rule is inflexible, that a limitation after a dying without issue generally, creates an estate-tail, unless it be controlled by restrictive words clearly manifesting an intention to confine it to a dying without issue living at the death of the devisee, or some other reasonable period: And, as there are no such words in the present case, I am of opinion that the legal sense must be adhered to, and that Thomas took án estate-tail; which was turned into a fee-simple by the act of 1776, for docking entails. The result is, that the judgment of the District Court is right, and ought to be affirmed.

*C ARRINGTON, Judge.

The Judges who have preceded me have exhausted the subject; and, therefore, I have only to add, that I concur in the opinion that Thomas Hill took an estate-tail; which, by the act of 1776, was turned into a fee-simple: Of course, the judgment of the District Court is right, and ought to be affirmed.

LYONS, Judge.

I have always thought the distinction between lands and personal estate to have been settled by the case of Forth v. Chapman; and that it waá certain that a limitation over of lands after a general dying without issue, created an estate-tail. Fearne on Rem. 363. It is to no purpose to be arguing about the intention, unless the words will authorise a restricted construction; for, mere intention cannot prevail against a'settled rule of interpretation, which has fixed an appropriate sense to particular words; because, when the sense is once imposed, they become the indicia of the testator’s mind, until the contrary is shewn by countervailing expressions. Harg. L. Tracts, 508. It is better that it should be so too: Por, the law ought to be certain; and, when the rule is once laid down, it should be adhered to: Otherwise, what is called liberality, at the bar, will degenerate into arbitrary discretion, and all must depend upon the will of the Judge. None of the cases cited by the counsel for the appellant, contravene the settled doctrine. That of Porter v. Bradley, which was most relied on, evidently does not; for, the words leaving issue, there, essentially varies it from this case: And, all the other decisions, both before and since, have so firmly established the construction in favor of the entail, that it has now become a canon of property, which it would be dangerous for the Court to alter. The Legislature, by the act for docking entails, plainly understood it in this manner; and, therefore, they left the construction as it was before, but turned the entail, when created, into a fee simple. An infringement of the rule, then, instead of supporting *the Legislative intention, would go directly to defeat it; and would tend, under the notion of executory devises, to introduce that very clog to alienation, which the statute meant to abolish. Consequently, finding nothing in this case to take it out of the general rule, I think that Thomas Hill took an estate-tail, which, by virtue of the act of 1776, was turned into a fee simple, and, therefore, that the judgment of the District Court is right.

Judgment affirmed.  