
    Fosdick and others against Cornell.
    payment of í 5 debt, providing for his wife, &c. devises his real estate to lus daughter Eli-adds, *’1 further, C, by his last will and testament, after charging his my mind and will ts, that if any of my said SJacob,Thomas, and John, or my íhallhappen’to m^eof'tkeir^ own bodies, that shall retmnfto the survivors to be equally divided between them.” It was held, that these words did not create an estate-tail, but a limitation over in fee to the survivors, on the failure of the male heirs.
    THIS was an action of trespass, originally commenced before a justice of the peace, in which a plea oí title was put in, and was afterwards removed from the court of common pleas °f Queens County, by habeas corpus, to this court. By the pleadings the title to the freehold was put at issue between \ the parties; and the cause was tried at the circuit, held m Queens County, on the 25th September, 1805, before Mr. Justice Livingston, when a verdict was taken for the plaintiffs, subject to the opinion of the court on the following case.
    . The locus in quo was a tract of meadow and beach, at e 1 Rockaway, in the town of Hempstead, known by the name of Rockaway beach, which anciently belonged to Richard Cornell, under whom the parties claimed title. The plaintiffs claimed under the will of William Cornell, son t^le sa'd Richard, as the legal representatives of the devisees of the said William; and the defendant claimed under the will of Richard Cornell, the father of 
      William, on the ground that the devise was in tail. The will in question was dated the 7th November, 1693. The testator first binds his estate for the payment of a certain debt mentioned, and directs, that if his executors did not pay the debt, that then his estate should be sold for that purpose, and the surplus divided among his four sons : he then devises to his son William and his heirs forever, the premises in question, and after devising other real estate to his other sons and his daughter Elizabeth, in fee simple, and making provision for his wife and daughter Mary, he adds the following clause, '■'•further my mind and zvilL is, that if any of my said sons, William, Jacob, Thomas and John, or my daughter Miry, shall happen to die -without heirs male of their own bodies, that then the lands shall return to the survivors to be equally divided betzveen them. William, after the death of his father, entered on the premises in question, and afterwards, in the year 1742, by his last will and testament, devised the same to his sons William and John in fee, and died without revoking or altering his will. The plaintiffs are, in regard to the premises in question, the legal representatives of the said William and John; and the defendant, and one Peter Smith, mentioned in the pleadings, are the legal representatives in the male line of descent of the heir at law of the said William, the elder son of Richard.
    
    The will of Richard Cornell was set forth in the case, but the only question between the parties arose on the above clause. It was agreed, that if the court should'be of opinion, that William the son of Richard, did not take an estate-tail in the premises under the devise to him from his father, that then judgment might be entered for the plaintiffs ; but if the court should be of opinion, that an estate-tail was created by the said devise, then a new trial was to be granted with costs, to abide the event of the suit.
    S. Jones, for the plaintiffs.
    If any technical ide-'s suggested by the words, “ heirs male of their bodies,” be dis~ carded, there can be no doubt from the perusal of this will, that the testator never meant to create an estate-tail,All the other clauses in the will show that the testator had in contemplation, an estate in fee simple. The first devises are in fee, and by the subsequent clause, no more could have been intended than to designate the event, on which the contingency was to take place, and not to use words of limitation. The devise over is also to his daughter Mart/, who is not named in the former clause, as well as to the four sons, to whom the several portions of the estate had been devised. Again, he devises all his estate for the payment of debts, and directs the surplus to be divided among his heirs, all which evidently shows that he had no idea of creating an estate-tail with cross remainders, one of the most complicated estates known, in the law. But do the words “ heirs male of their own bodies,” necessarily ex vi termini, create an estate-tail ?' Are they not rather to, be understood as describing an event, on which the estate should be defeasible, that is, in case the devisees should die without leaving sons, or male children ? The court will feel disposed, so far as the principles and rules of law will warrant, to consider this devise over as an executory devise, rather than as a limitation by way of contingent remainder. It is • true, that if this devise over was on the indefinite failure of issue, the contingency would be too remote to render it an executory devise. But a contingency, that if a person die. without sons or male issue, would be sufficiently near and probable; and in this case the event must happen within the lives of some or one of the devisees, as the remainder is to the survivors, and not their heirs. If William, for instance, had a son, the event would happen, and the devise over would never take effect. In fact, the event did happen, for William hada son under whom the phantiffs claim. Thus in the case of Hughes v. Sayer,
      
       where there was a devise over, to the survivor, in case either devisee died without children, the testator was ' held to mean, a dying without children living at the death of the parent, and consequently, that it was a good executory devise. The case of Pells v. Browne is analogous, to the present. The word issue instead of heirs male, does not .vary the principle. It was the dying without issue, living W. that induced the court to consider it not as a contingent remainder m fee-tail, but as a limitation of an estate in fee, by way of an executory devise. Again in the case of Hanbury v. Cockerill,
      
       a devise to A and B in fee, and in case either died before marriage, or attaining the age of 21 years, and without issue of their bodies, it was held that the sons took in fee, subject to a limitation to the survivor for life, in case of the contingency happening, and so an executory devise. In the case of Porter v. Bradley, 
      
       the devise was to his heirs and assigns, and if he should die leaving no issue behind him, then a devise over, which was held a good executory devise. Lord Kenyon, recognising the former decisions on this point, considered the case of Pell v. Browne as the magna charta of this branch of the law. I am aware that words of limitation, as heirs male of the body, &c. in a subsequent part of a will, have been construed so as to controul the words creating a fee simple in a former part; but this is always where the v/ords of limitation are so clearly expressed, that there can be no doubt of the intention of the devisor. And where the first part of the devise creates an estate for Ufe, and the latter part an estate in tail, it will be so construed as to enlarge the estate. But it is impossible, on the principles of such a construction, to reconcile the introduction of the daughter Mary into this part of the will, a person having no estate devised to her, which could give operation and effect to an estate-tail. Again, the notion of an estate-tail is inconsistent with the direction of the testator in the former part of the will, that his estate should be sold to pay his debts. The devise to pay his debts, and the power to sell, whether carried into effect or not, strongly indicate the intention of the testator» It is a cardinal rule in the exposition of wills, that the inteii ■ tion of the testator should prevail, unless against some settled rule of law. Thus words are construed to be either words of limitation or purchase, or descriptive of the event, according as they best agree with the manifest intention of the testator. By adopting the construction contended for, full effect will be given to all the words in the will, and this clause will be made to harmonise with .he other parts, in which the intention of the testator is expressed in words that do not admit of the possibility of a doubt.
    
      Hopkins and Radcliff for the defendant.
    The question, is not whether the parties are to take by descent or purchase, for in whatever way they take, it must be by descent. The single point of inquiry is, whether the clause cited from the will creates an estate-tail or not. After tnany particular devises, this general clause is introduced, which shows some method in the will; for the testator first parcels out his estate among the several devisees, and then, by the general clause, declares what kind of an estate they shall hold.— The rules of construction in regard to wills are familiar, and founded in good sense.  One of these rules is, that where there are two clauses repugnant to each other, the last must stand. Another and leading rule is, that the whole inp strument is to be taken together, ut res magis valeat quam pereat. By the construction contended for on the part of the plaintiffs, the whole cannot stand. In the first clause, a fee simple is created, in the latter an estate-tail. The words creating a remainder over can have no effect, unless an estate-tail be created. If we suppose a fee simple, not only the words heirs male of the body must be rejected, but the remainder also must be void. If both clauses are taken together, they necessarily import an estate-tail. A fee simple is first created, which is afterwards changed into an estate-tail. This estate-tail is expressly created, rather than by implication. It is not an estate for life-, and lor want of heirs of the body, with a remainder over ; _ but the estate continues a fee simple as long as there are heirs male of the body, but ceases to be a fee simple on failure of such heirs. Again, an estate-tail may be created by implication, and will support a remainder. And where words in a former part of a will give an estate in fee simple, and words in the latter part import an estate-tail, the court consider them as creating an estate-tail. It is a settled and invariable rule, that where a contingency is limited to depend on an estate of freehold, which is capable of supporting a remainder, it shall never be construed to be an executory devise, but a contingant remainder only.  This doctrine was laid down bv Lord Hale, and has been uniformly adhered to ever since. The reason why a devise over to survivors is considered as an executoay devise, is, that after a fee simple no remainder can be created except by way of executory devise. Here there is an estate created, capable of supporting a remainder over ; and according to the rule established by Lord Hale, it must be considered as a contingent remainder, and not as an executory devise. Executory devises were introduced in favour of wills, and are an exception to the general rules of common law, as to the creation of estates. It is a devise in fee, but upon the happening of a particular event, limited to another description of heirs. Courts will never consider these estates as executory devises, unless compelled by the common law doctrine, that prevents the creation of a remainder in fee, after a fee.
    
    It is said, on the other side, that dying without heirs male of his body, must be construed as dying 'without heirs living at the time of his death. But though as to personal estates, courts have been inclined to adopt this rule, yet m regard to real estates, it is otherwise. It is true tliat in some modern cases this distinction has been questioned^ particularly by Lord Kenyon,
      
       who thought it strange that there should be a difference, in this respect, between a devise of real, and of personal property. But this is clearly an innovation on the ancient rules, which his Lordship professed to support when first called to the bench, unless he laid stress on the words leaving no issue behind him.-—> This remark, besides contradicting all antecedent notions, as expressly contrary to the opinions of two distinguished elementary writers, Fearne and Powell;  and being since tiie revolution, can have no binding authority on this court, more particularly in regard to a will made near a century ago. Besides, in the case of Daintry v. Daintry,  where it was decided, on a devise of real and personal estate, that the devisee, by the same words, took an estate-tail in the real estate, but in the personal estate, for life only, or if he had children, absolutely, otherwise, it vzent to the uncle, by way of executory devise, Lord Kenyon seems to have forgotten his former observations about there being no distinction between real and personal property. Reasons of public policy may induce a different decision in regard to limitations of personal property, which do not apply to real estates. All the cases cited on the other side, except that of Porter v. Bradley, in support of their doctrine, are those of devises of personal property. In the case of Beauclerc v. Dormer, though a devise of personal estate, Lord Hardwicke observes, that none of the authorities cited came to the point, that ex vi termini, dying without issue, was to be confined to d) ing without issue living at the time of the death of the first taker. Issue is considered as a nomen collect'vuum, and the vzords ¥ dying without issue, always carry an estate-tail.
       The books are full of authorities to this point. So a devise over “ to nephexvs moietivelyf was held to create an estate-tail,  and many similar cases might be cited. The case of Roe v. Scott, in the Common Pleas, cited by Mr. Poxvell from the M. S. of Mr. Fearne, is very strongly in point, The testator, after devising his lands to his three sons, and his heirs and assigns forever, and charging the same with the payments of various legacies, then added, “ nay will “ and mind is, that if either of my three sons shall depart “ this life xvihout issue of his or their bodies, then the es- “ tates of such sons shall go to the survivors or survivor;’5 notwithstanding there were many circumstances tending to show that the testator meant to create an estate in fee simples it was held that the words created an estate-tail. §
    The clause as to the payment of debts, is a mere naked .power, and the devisee will take the -estate subject to that .power. Charging an estate with the payment oí debts, does not affect the devised. There appears to be some inaccuracy in naming the daughter, who is called Elizabeth in the first part, and Mary in the subsequent clause. The testator gave am estate to Elizabeth, and Mary was the same person. But if she had no previous estate it would not affect the remainder over.
    
      Riggs, in reply.
    If we look at all the different devises contained in this will, some of which are for life, to pay debts, &c* it is impossible to believe that the testator intended to create.an estate-tail. The words in the clause, which has given rise to the present question, do not expressly create such an estate. If such an estate can be made out, it must be by implication. Hence it has become necessary to examine the numerous authorities on the subject. The English courts have favoured estates-tail, where the words issue, or heirs of the body have been used, because it was beneficial to the devisees. That reason can have no influence in this case, for the devisees are notbenefitedby such a construction. The clause must create an estate-tail in all the persons named, or none at all ; in the daughter Mary, as well as in the sons : for we cannot intend that Mary and Elizabeth are'the same person. In the other part of the will, the testator gave an estate in fee to Elizabeth, and devised one hundred pounds, and half the moveables to Mary. Now, no case can be found where an estate-tail descendible can pass where one of the devisees has no estate of freehold, on which it can be engrafted. Where a limitation is to the heirs of .he b dy of the hus„ band and wife, and there is no estate limited to the husband, the words do not give an estate-tail to the wife to whom an est te is limited, but are considered as words of purchase, An estate cannot be made to descend to the heirs o. the body of a person who takes nothing. In case of the death of the four brothers, Mary would not have taken the estate; there was a -other sister who .would have been a co-heir ess, and another brother. Courts are disposed in their construction of wills, to favour those who, ui . case of survivorship, would be heirs at law. Again, after the clause "n question there are certain easements made, and incumbrances created; John and Jacob might build, &c. and have two acres each at their election, absolutely. This is inconsistent with the idea of an estate-tail. Are there, then, any words so express and technical that they will admit of no other construction than the one contended for on the part of the defendant ? The word /zc/r, is construed variously, so as best to carry into effect the intention of the testator. As to the application of the rule that the court are to construe the words so as to create a remainder over, if possible, instead of an executory devise, it may be said, that as Mary could take no estate in remainder, there could be no remainder over. Are there any legal objections to considering it as an executory devise ? As to time ; the estate was to vest in the life or lives of persons in being. Suppose it to be an estate for life over, after failure of male issue ; and one dies without leaving such issue, and then another dies, leaving male issue, the estate would go to the survivors ; and by the words, equally to be divided between them, they would take in fee. It is, therefore, a good executory devise over to such as should survive those who died, without male issue of their bodies. It is not denied, that dying without issue imports an indefinite failure of issue; but here the estate is to go to the survivors on failure of male heirs of the body. But the cases which have been cited show that the words dying ■without issue, &c. have been construed to be an executory devise. As to the case so much relied on, from Fearne,
      
       it is to be observed, that there was a devise over to the daughter, who, on the death of all the sons would have been heir ; and, on the same principle that governed in the case in Wilmot, the construction as to an estate-tail was adopted for the benefit of the devisees. It is the same as giving an estate to a man and his heirs. This is the true meaning and only sound sense of that case. In «any other sense, it is not law. As to th; remark in the . opinion of Lord Kenyon
      
       it is to be remembered, that his lordship was searching for the intent of the testator, not the technical meaning of the words ; and, in that view, his observation, that there could be no difference between real and personal estate was just; for it could not be supposed that an unlettered testator would have in his mind the legal distinction, or intend to distinguish between them.
    There has been too much refinement by Fearne, Powell and other English lawyers, about remainders, and executory devises. These subtle distinctions have been carried beyond the bounds of reason and common sense. It would be useless to comment on all the numerous decisions, and criticisms of elementary writers. In this country estates-tail sec e. not to be favoured. The legislature, bv abolishing them, has expressed its decided aversion to that mode of transmitting property. Will the court, by a forced construction, or an adherence to technical nicety, consider this an estate-tail down to certain period, when it was' turned into a fee-simple by the operation of the act of the legislature, and thus permit a quiet possession under an antient title to be disturbed ?
    
      
       2 Fearne, 4th Ed. p. 118.
    
    
      
       1 P. Wms. 533. 2 Fearne, 190.
    
    
      
      
         Cro. James, 509.
      
    
    
      
       1 Roll. Ab. 334. 2 Fearne, 18.
    
    
      
       3 Term, 143. 2 Fearne, 206. note.
      
    
    
      
       See also Roe v Jeffery. 7 Term, 589.
    
    
      
       Opinions of C.J- Wilmot,p. 354. 2 Wm, Bit.!728.
      
    
    
      
       4 Term, 294. Cooper v. Collis. 2 Bos. & Pul. 314. Bemfield v. Wetton. Opinions of C. J. Wilmot, p. 274.
    
    
      
       2 Blk. Com. 379. Co. Litt. 112. b.
    
    
      
       1 Vesey, 25. 6 Term, 314.
    
    
      
      
        Comyns, 372. Walter v. Drew.
      
    
    
      
      
        Douglass, 757. Cro. James, 696. Cowper, 410. 6 Term, 314. 1 Vesey, 25 25
    
    
      
      
        Purefoy v. Rogers, 2 Saunders, 388. and see the learned notes of Serjeant Williams. See also 4 Mod. 284. 3 Term, 765. Douglass, 759. 2 Vesey, 616. 2 Fearne, 4th Edition by Powell, 1, 2, 12, 14, 203, and the notes.
      
    
    
      
      
         Comyns, 372.
    
    
      
       2 Fearne, 194, 197.
    
    
      
      
        Porter v. Bradley, 3 Term, 143.
    
    
      
       See 4th Ed. of Fearne, vol. ii. and the notes of Powell, from p. 118 to 299, and notes 197, 199. 1 P. Wms. 665.
    
    
      
       6 Term, 314.
      
    
    
      
       2 Atkyns, 308, 314.
    
    
      
      
        Douglass, 504. Roe v. Fonnereau, 1 Brown, C. C. 190.
    
    
      
       2 Vesey, 180, 611. Cowper, 234. See also 8 Jiner, Ab. p. 212, § 11. 219, § 9. 259, § 2. 269, § 9. 272, § 2.
      
    
    
      
      
        Fearne, 204. note of Powell.
      
    
    
      
      
         Cowper, 235. Bowes v. Blackett.
      
    
    
      
      
        Dyer, 64. 99. Lane v. Pannell. 1 Rolles’ Rep. 238. 317. 438. Goffage v. Taylor. Opinions of C. J. Wilmot, 362. Frogmorton v. Wharrey.
      
    
    
      
      
        Fearne, p. 203. Roe v. Scott.
      
    
    
      
      
        Term, 143.
    
   Thompson, J.

delivered the opinion of the court.—The determination of this question, will depend on the interpretation to be given to the devise over to the surviving devisees : if this were to take effect only on an indefinite failure of male issue, William took only an estate-tail. But if, from the context, or tlie whole will taken together, it may be construed to take effect on the failure of male issue, during the life of the first taker, or, as applied to the present case, during the life of William, the devise over is good as an executory devise, and will not in any way affect, or qualify the prior clause in the will, wherein a fee simple is devised to William. This is a question of construction, depending on the intention of the testator $ and from the whole will taken together, I cannot entertain a doubt, that he meant to provide, that in case any of the devisees named in this clause," should die without leaving male issue at the time of his death, his portion should be divided among the survivors. Neither do I think that there is any stubborn or rigid rule of law that will militate against this construction. The cases in the books on this question, furnish us with many nice distinctions, all, however, made for the purpose of giving effect to the intention of the testator, which is considered a cardinal rule in the construction of wills. Lord chief justice Wilmot said, that he would lay hold of the most trifling circumstance to give effect to the apparent intention of the testator. (Keily v. Fowler, Fearne Ex. Dev. 236, 245.) In the case of Pells v. Brown, (Cro. I. 590.) which Lord Kenyon, in the case of Potter v. Bradly, (3 Term, 146.) terms the foundation, and as it were the magna charta of this branch of the law, the devise was to Thomas and his heirs forever, and if Thomas died without issue living William., then the devise was over to William. This was considered a devise in fee to Thomas, and not an estate-tail ; the words living William, were thought sufficient to make the devise over to William an executory devise. In the case of Hughes v. Sayer, (1 P. Wms. 534.) the testator had devised his personal estate to A. and B. and upon either of them dying without children, then to the survivor. This was held a good devise over, for the words dying without children, must be taken to be children living at the death of the party, and could not mean an indefinite failure of issue ; and the reason assigned was, that the immediate limitation over was to the surviving devisee : and it was not probable, that if either of the devisees should die leaving issue, the survivor would live so long as to see.a failure.of issue, which, in .notion óf law, was such a limitation as might endure forever.

•. If the reason assigned for the decision in this case be solid, it applies with full force to the one before the court for here the limitation over is to the surviving devisees. The only difference between the two cases is, that the one relates to personal, and the other to real estate, which, it is contended, requires a different rule of construction, according to the adjudged cases. I find no distinction* however, with respect to the effect which the words surviving devisees, or any other words, or parts of the will, are to have in ascertaining the intention of the testator.—* It is true, that in the case of Forth v. Chapman, (1 P. Wm. 667.) the Lord Chancellor thought the words leaving no issue, ought to receive a different construction when ap. plied to real, than when to personal estate ; that as to the former, the words, ex vi termini, ought to be considered to mean an indefinite failure of issue, and as to the latter, a failure of issue living at the death of thefirst taker. The soundness of this distinction has been much questioned. In the case of Potter v. Bradly (3 Term, 145.) Lord Kenyon rejected it, and said that it would be very strange if these words had a different meaning when applied to real and personal property. If such a distinstion existed in the law it would not agree with the rule, lex plus laudatur yuando ratione probatur; but it was not founded in law. In that case the court decided, that if lands be devised to A. his heirs and assigns forever, and if he die leaving no issue behind him, then over, the limitation over is good by way of executory devise. In the case of Roe v. Jeffery (7 Term, 589.) the devise was very analogous to the present; it was to T. F. and his heirs for ever, but in case he should depart this' life and leave no issue, then to return unto E. M. and S. or the survivor or survivors of them, to be equally divided betwixt them, share and share alike. This was held a good executory devise, for the testator must have meant the devise over, on failure of issue living at the death of the first taker. The principal reason assigned for this conclusion was, that the devise over was to persons then in existence ; and Lord Kenyon here again takes an opportunity of observing, that he was not prepared to unsay what he had said in Potter v. Bradly, respecting the distinction taken in Forth v. Chapman. Without, however, expressing any decided opinion relative to the correctness of this distinction, I think it is fairly to be collected from the provisions in the whole will, that the testator, in the case now- before the court) intended that the devise ove" should take effect, in case the first taker should die without a son living at the time of his death, and that it was not to depend on an indefinite failure of male issue. The former part of he will, in which the premises in question are devised in fee. simple to William, is.totally distinct and independent of the clause in question ; and though this devise may, by subsequent provisions, be confined and restricted, so as to carry only an estate-tail; yet, in order to give it that effect, it ought to appear clearly that such was the intention of the testator. But there is nothing in the whole will, except the particular clause in question, that tends in the least to show that the testator meant to give to his son William an estate-tail. He had parcelled out his estate among his children as he thought just and right, giving them, in the first instance, 9, fee simple interest, which shos pretty clearly what his intention was with respect to the estate he meant to devise : It is most probable if he had intended to devise an estate-tail, that he would have done it in the first instance, and not have left it to be raised by implication. The devise over, also being to the surviving devisees, among whom was his daughter Mary, to whom he had not-in any other way devised any real estate, is another strong circúmstance, according to the- authorities cited, to show that' the clause in question was only intended to provide for the contingency of any of the devisees dying without leaving heirs male living at the time of their death. The opinion of the court, therefore, is, that the plaintiffs are entitled. <.0 judgment.

Judgment for the plaintiffs,-  