
    Richard B. Bedon v. Charlotte Bedon.
    Devise to testator’s son S. “ but if S. should die without being married, and leaving issue a sou,” then over to R. another son of testator, for life, remainder to a son of R. in fee. Held, that S. took a fee, defeasible on his dying unmarried and leaving no issue male, living at his death, or born within a competent period afterwards; and that the estate became indefeasible in his heirs on the birth of a posthumous son, although the son died in early infancy, and during the life time of R.
    Devises are to be so construed, as, if possible, to effectuate the entire intention of the testator, if that intention is not opposed to the policy of the law against perpetuities : And to this all other rules of construction are subordinate.
    It is to carry the intention of the testator into effect, that an estate-tail is implied by the English Courts, whether it be to enlarge, or abridge, an estate expressly devised: For the double capacity of an estate-tail, as an estate of inheritance to transmit to issue the benefit intended them, and as a particular estate of freehold to support all limitations over, however remote, as contingent remainders, enables the Courts, by implying that estate, to effectuate the intention of the testator in all its parts. Where therefore, to imply a fee simple conditional at common law, would not, under like circumstances, produce like effects, the reason of the rule does not apply; and this latter estate, although analogous toan estate tail, will not be raised by implication.
    A remainder cannot be limited upon a fee-simple conditional at common law ; and all devises over, limited to take effect upon the natural efflux or determination of that estate, are void as executory devises for remoteness. For this reason, wherever there are devises over, a fee-simple conditional at common law will not be implied, if the will is susceptible of any other construction, which will effectuate the intention of the testator.
    A fee simple conditional at common law, will never be implied, unless the implication is a direct and necessary inference from the face of the will. It will not, it seems, be implied, where the testator has manifested an express intention to dispose of the reversion.
    Tried before Mr. Justice Gantt, at Coosawhatcbie, Fall Term, 1829.
    Trespass to try titles. Josiali Bedon, late of the parish of Saint Helena, by his last will and testament duly executed, and bearing date the 24th of January, 1820, devised, inter alia, as follows : “ It is my will and desire, that my plantation and negroes on Cat Island, remain as they now are, to be planted in the best manner my executors may approve of, and that my wife Elizabeth Louisa Bedon, shall receive supplies of every kind, from said plantation, for herself, house-servants, horses, &c> an(j free use 0f the stock, and that my executors shall pay *ier annually, during her life, the sum of one thousand dollars for her own use and benefit; the remainder of my crops to be divided annually between my children, Richard Bedon, Stobo Bedon, Kezia the wife of Stobo Perry, and Hypatia the wife of Lawrence Fishburne, share and share alike. And after the decease of my wife, I gave, devise, and bequeath my said island, called Cat Island, to my son Stobo Bedon, but if my said son Stobo Bedon should die without being married and leaving issue a son, then and in such case, I give, devise, and bequeath my said island to my son Richard B. Bedon, for and during the term of his life, and at his death to his son Richard Bedon, to him, his heirs, and assigns forever.”
    The testator further devised and bequeathed the rest and residue of his estate, real and personal, to his four children above mentioned; and died within a few months after making his will. His widow survived until December, 1822, when she also died, leaving all of the said children surviving her.
    Stobo Bedon, the devisee, intermarried with the defendant Charlotte Bedon, and died on the 1st of April, 1825, leaving hi^ said wife enseinte of a son, who was born on the 31st of July following, and leaving no other issue. The son also died at the age of about two years; and his mother, the defendant, has ever since been in exclusive possession of Cat Island.
    This action was brought by Richard B. Bedon, one of the devisees above mentioned, to establish his title to the whole of Cat Island, by virtue of the limitation over to him; or to a part of it either by virtue of the devise of the residue, or as one of the right heirs of testator. The jury found the foregoing facts by special verdict: And if the Court should be of opinion, that the plaintiff, under the legal construction of testator’s will, was infilled-to recover the whole, or any part of Cat Island, then they found for the plaintiff. Otherwise, for defendant.
    Upon this verdict the plaintiff moved for leave to enter judgment ; but the motion was refused by the Court. His Honor, the presiding Judge, was of opinion, that under the will, Stobo Bedon took an estate in fee, subject to be defeated only by the contingency, of his dying without being married, and leaving-issue a son. That the birth of the posthumous son of Stobo had rendered this contingency impossible; for leaving an infant in ventre sa mere was a “ leaving issue,” as well in construction of law, as within the obvious intention of the testator. That the estate was therefore indefeasible in the heirs of Stobo Bedon; and the plaintiff was not intitled to recover any part of the land in dispute. Postea ordered to be delivered to defendant.
    The plaintiff appealed, and now moved to reverse the judgment of the presiding Judge.
    J. G. Holmes, for the motion.
    It may be conceded under the authority of Hall v. Goodwyn, 4 M’C. 442, that a devise of lands will pass the fee without words of perpetuity: but it is only a rule of construction ; and where it is the obvious intention of the testator to give a less estate than a fee, that intention must prevail. It is clear in this case, that the testator did intend to restrict the estate devised to his son Stobo ; and the question is, what construction shall be given to the devise, in order to carry that intention into effect.
    Even in England where the express devise to Stobo would be regarded as for life only, the son of Stobo would take by descent, and not by purchase. Butler’s Fearne, 8th edition, 40. Bodens v. Watson, Ambler. 478. And the implication in favour of the son, would have no other effect, than to enlarge the estate of the father to an estate tail. 2 Fonbl. 56. Knight v. Ellis, 2 Bro. Ch. R. 578. The case is, of course, much stronger against the son’s taking by purchase, where the express devise to the father is of the fee; for no implication is there necessary to transmit the intended benefit to the son. In the present case, however, it is immaterial whether the estate expressly devised to Stobo, be regarded as for life or in fee; for there being a limitation over to the brother of Stobo, who was capable of being his heir, the estate of Stobo must, by implication in favour of that limitation, be construedaan estate tail. Webb v. Hearing, Cro. Jac. 415. and see 2 Fonbl. 63 ; where all the authorities are collected. The same words which in England would give an estate tail, will in this State give a fee simple conditional at common law. Carr v. Porter, 1 M’C. Ch. 60. Jones ads. Postell & Potter, Harp. 92. and it is this last mentioned estate, therefore, which Stobo Bedon took under his father’s will.
    The next inquiry is, as to the legal character of the limitation over to Richard B. Bedon. It was unquestionably a remainder limited upon the fee-conditional of Stobo; and under the authority of Doe v. Holme, and Barnard v. Reason, cited in Butler’s Fearne, 379, it must be considered a vested remainder. But it is immaterial whether it be regarded as vested or contingent, since the precedent estate subsisted until the contingency happened, on which the remainder was to vest in possession.
    But it will be contended, that no remainder whatever can be limited upon a fee-simple conditional at common law; and in support of this opinion a number of loose dicta may be cited. It is a sufficient answer to these to say, that they are unsupported by the authority of a single decided case; for the statute de donis put an end to the estate in question, in England, before the learning of remainders had any existence; certainly long before it assumed any thing like shape or system. And little reliance can be placed on the merely speculative opinions of English writers, upon a question which could never arise in their Courts, under their existing system, or any probable modification of it. We must, therefore, decide the question for ourselves ; and in this, as in all other cases, where there is no direct authority, we must be governed by analogy. It is admitted by all the text writers, and has always been recognized by our own Courts, that a fee-simple conditional, and an estate tail, are analogous estates; and as remainders may be limited upon an estate tail, it follows that they may also be limited upon a fee-conditional, unless the specific difference between these analogous estates consists of those attributes, which affect the capacity of either to support a remainder.
    ' To support a contingent remainder, the precedent estate must be freehold; in this the estate tail and fee-simple conditional agree. But to support a remainder of any kind, the precedent estate must be a particular estate, that is, it must be less than the whole fee. Now, whatever change may have been made in the incidents of the fee-conditional, when it was converted by the statute de donis into a fee-tail; there is nothing in the statute itself, nothing in the decisions of the Courts upon its construction, and nothing in the reasoning of the text writers, which would warrant us to say, that any alteration was made, or intended to be made, in the quantity of the estate. The reasoning of the Courts is totally independent of any such supposed alteration; and the very reasoning, which led the Courts to construe an estate tail a particular estate, would lead inevitably to the same conclusion in relation to a fee-simple conditional at common law. If then we are to be governed by the reasoning of the English Courts, rather than by the dicta of English writers, there can be no question but that a remainder may be limited upon a fee-conditional. The opinion adopted by so many English authors, was evidently taken up in haste, and has been adhered to without reflection. Of late years, since the principles of English jurisprudence have been subjected to a more searching investigation, this old opinion has been questioned ; and one very recent and very able writer, has boldly denounced it, supporting a contrary opinion both by unanswerable argument, and by very strong authorities. Preston on Estates, 2 vol. chap. vii. In the case of Cruger v. Heyward, 2 Desaus. 94, the question was made, and fully considered; and it was there decided, that a remainder might be limited upon a fee-conditional, at common law. „
    If, however, it were conceded, that a remainder cannot be limited upon a fee-conditional, the limitation over to Richard B. Bedon, is nevertheless good as an executory devise. A limitation over after a fee-simple conditional at common law does not restrict the right of alienation beyond the term permitted bylaw. The first tenant may aliene upon the birth of issue. Plowd. 235, 241, 1 Inst. 19, a. 7 Rep. 34 b. If he does not aliene, but dies leaving issue, such issue may aliene immediately without having issue. 7 Rep. 34, b. If there is no issue, the estate is determined, and the executory devise vests. So that under no possible circumstances can the estate be tied up beyond the life of the first taker. An executory devise, which does not restrict the power of alienating the entire estate beyond a life in being, is not within the policy of the law against perpetuities ; and the Courts are bound to carry the intention of the testator into effect. Butler’s Fearne, 444, note. Hargrave’s Law Tracts, 518.
    There is, however, another view of the limitation over to the present plaintiff, which brings it strictly within the rule, that an executory devise must vest within a life or lives in being, or twenty-one years afterwards. The limitation here is to a person in being, and for his life only, and although limited upon an indefinite failure of the issue male of Stobo, yet' it is to take efiect, if at all, within the life of the plaintiff, which renders the case analogous to that of Hanbuiy v. Cockerell, cited in Butler’s peai.lle) 396. and Hughes v. Sayer, 1 P.. Wins. 534.
    ^ the limitation over to Richard B. Bedon be void in every view,' then a possibility of reverter remained in the testator. jones acjSt p0stell & Potter, Harper, 92. And either as one of the heirs at law, or under the residuary devise, the plaintiff is intitled to at least a portion of the land.
    Petigru, contra.
    
    It is impossible to say with certainty, what the testator would have done in the circumstances that have occurred, if the present state of things had been presented to his mind. He may have intended an estate to Stobo, for life, and to his eldest son in fee; or an estate to Stobo for life, remainder to all his sons in fee; or an estate to Stobo in fee conditional; or an estate to Stobo in fee-simple, with an executory devise to Richard, to arise on the failure of the preceding-estates. If we construe the bequest in any of these ways, except that which gives Stobo a fee-conditional, the executory devise is good : but if the estate to Stobo is a fee-conditional, the executory devise-cannot take effect. The construction, therefore, for which the plaintiff contends, is the most inconsistent with the testator’s intentions; and such a construction ought not to be made, unless there be some positive rule of law in favour of it.
    But there is no rule of law that such words as the testator has used, do necessarily create a fee-tail, or fee-simple conditional. Luddington v. Kime, is very near this case. The devise there was to Evers Armyn for life, and in case he should have any issue male, to such issue male and his heirs forever: if he should die without such issue male, then to Thomas Barnardiston and his heirs forever. This was held to be an estate for life Only in Evers. Treby, C. J. said, if it had been estate for life to Evers, and in case he died without issue male, to Thomas, Evers would have had an estate tail. But why 1 Because otherwise, the intention would have been defeated ; as it was clear that the limitation over to Thomas, was not to take effect ^f Evers had issue male. If Evers then had had issue male, unless the devise in the case supposed was construed an estate tail, neither the issue nor Thomas could have taken. 1 Ld. Raym. 203.
    
      In every case where an estate tail has been raised by implication, it will be found that the principle is the same, viz: to support the evident intention, as welFS^ favour of the issue of the first taker, as in favour of him to whom it is limited over. Sonday’s case, 9 Rep. 127. a. King v. Melling, 2 Lev. 58. Clerk v. Day, Cro. El. 313. Robinson v. Robinson, 1 Bur. 38. By-field’s ease cited in King v¡ Melling, 1 Ventr. 231, is the strongest. That was a devise to A, and if he dies without having a son, then to remain to the heirs of the testator. It was held an -estate tail, because otherwise the heir of the testator would take, although A. died leaving a son; for the son could not take as there was no devise to him, and by a stubborn rule of law, the devise to A. without words of limitation or perpetuity, could not give a fee-simple. But this rule of law is not of force here. Peyton v. Smith, Charleston, February, 1829. MS. Dunlap v. Crawford, 2 M’C. Ch. 171. Hall v. Goodwyn; 4 M’C. 442. By the authority of these decisions, the devise to Stobo is in fee, and the limitation over to Richard is good as an executory devise, depending on an event that must happen on the death of Stobo or within nine months after. The will then is consistent, and there is no need of any refinement, or straining the expressions of the will, to effectuate the intention. But if the words are construed to give Stobo an estate in fee-conditional, the limitation to Richard is void; which would be sacrificing an intention clearly expressed, to that which is merely conjectural.
    It is argued, however, that the limitation over to Richard may be good, although the devise to Stobo is in fee-conditional. But if the words, “should my said son Stobo die without being married and leaving issue a son,” be construed to mean an indefinite failure of issue, in order to enlarge the estate and give Stobo a fee-conditional; they cannot be construed also to mean a failure of issue at a particular time, in order to support the limitation over. They may mean an indefinite failure of issue, or a failure of issue at Stobo’s decease, but it is impossible to put two different senses upon the same words at the same time. Goodright v. Dunham, Doug. 264. Fearne, 375.
    It has been advanced in the argument that the limitation to Richand may be good as a remainder after a fee-conditional. Such an opinion has never been supported by any Court in this State, except in the case of Heyward v. Cruger. 2 Desaus. 94. The contrary was decided in Mazyck v. Vanderhorst, Charleston, 1828. MS. and it is needless to add any thing to the reasons an<^ authority of that case.
    Should the Court determine that Stobo took a fee-conditional, many questions will arise : First, Whether a fee-conditional is distributable under the act of 1791. Second, if not distributable under that act, whether the widow is not intitled to dower at common law. Third, Whether the possibility of reverter did not descend in the life time of Stobo, and the lesser estate merged in it as to one fourth of the land ; and whether the heirs of Stobo, whose rights are all centered in the defendant, are not in this way intitled absolutely to that fourth.
    In a word, to imply a fee-conditional, whilst it would fail to effectuate the intention of the testator, would involve the Court in inextricable difficulties; all of which may be avoided by coming to the obvious conclusion: that Stobo took an estate in fee, which on his death' descended to his widow and son, and on the death of the son to the widow, the defendant in this action.
    Memminger, for the heirs at law' and residuary devisees of the testator, contended: First, That Stobo Bedon, the first taker, had under the devise an estate in fee-simple conditional. Second, That the devise over to Richard B. Bedon, could not take effect as a contingent remainder, because it was limited upon a fee. Third, That neither could it be held good as an executory devise, because it was limited to take effect after an indefinite failure of issue, and therefore too remote. Fourth, That the issue of the donee in fee-conditional, having failed before alienation, the estate-reverted to the grantor, and became part of the residue of his estate.
    The first question will substantially decide all the others; for if the estate of Stobo, the first taker, be held a fee-conditional, then it necessarily results that the devise over cannot take effect, so long as any issue of Stobo can claim per formara dotii. The event, therefore, on which the estate of the devisee over is limited, may be postponed far beyond twenty-one years after any life in being: it awaits an indefinite failure of issue, and of course the devise over is void as an executory devise. So, too, if the estate of Stobo be held a fee-conditional, the devise over cannot take effect by way of contingent remainder, for in - Mazyck v. Vanderhorst, lately decided by this Court, it was ruled that a remainder cannot he limited upon a fee-conditional. The fourth question will also be determined by a decision of the first: for if the estate of Stobo be held a fee-simple absolute, of course there; can be no right of reverter in the donor. If, however, it should be held that the estate of Stobo is a fee-conditional, then several grave questions arise, which it is respectfully submitted, should be set down by the Court, for further argument.
    ^cts 0f 1824, P- 23.
    The question is, then, whether Stobo took a fee conditional. The devise to him contains no words of perpetuity, and under the old law would have passed but an estate for life. But it is contended, that under the act of 1824, and the decisions thereupon, these words must now be construed to give an absolute estate in fee-simple. On reference, however, to the act and the decisions, it will be seen that they do not apply to this case. They declare that such gift of land shall be construed a devise in “ fee-simple,” unless inconsistent with the will of the testator express or implied. Now, “ fee-simple” is a genus, of which says Lord Coke “ it is commonly holden that there be three kinds, viz. fee-simple absolute, fee-simple conditional, and fee-simple qualified or a base fee.” Co. Litt. 1, b. The statute, therefore, and the decisions, when they use the term “ fee-simple,” do not settle the question one way or the other.
    But it is perfectly immaterial, whether the words of the devise to the first taker are construed to carry a fee-simple or a life estate. In either event they are equally liable to be enlarged or contracted by implication, by any subsequent words which the testator has used to convey his intention. Since the case of Chapman. Dyer, 333, b. it has been uniformly held that a devise of an estate in fee may be cut down, or of an estate for life may be enlarged, by implication from the subsequent words of limitation to the ulterior devisees. The famous note in 2 Fonbl. 56, has collected all the authorities to prove this position, but it may be as well to refer particularly to Denn v. Slater, 5 T. R. 335. Cock v. Cooper, 1 East, 229. Forth v. Chapman, 1 P. Wms. 663. Crook v. De Vandes,9 Ves. 203. Brice v. Smith, Willes, 1. Gregory v. Whichelo, 8 T. R. 211. Ellis v. Ellis. 9 East, 382, and to Henry v. Felder, in this State 2 M’C. Ch. 323.
    The question then resolves itself into another shape; and that is, what estate does Stobo Bedon take by implication under the subsequent words “ if he die without leaving issue a son?” In answer to this question, it might be sufficient to shew, that by the uniform current of decisions in the English Courts, these words have been construed to create an estate in tail male. The present devise being of real estate, it is clear, under the authority of Forth v. Chapman, 1 P. Wms. 663, which has been frequently recognized in this State, that the word “ leaving” used here by the testator, is of no manner of avail in tying up the generality of the expression, and that it is precisely the same case as though he had said, “if he die without issue a son.” It is equally clear, that if the words “ a son” had been omitted, so as to have made the words, “if he die without issue,” or “ without leaving issue,” in either event, the estate would have been held an estate tail. Forth v. Chapman; and every English decision which has been so often quoted in our books sustains this position; and so do all our own decisions down to Mazyck v. Vanderhorst, inclusive.
    The only point upon which there could remain a doubt, is, whether the addition of the words “ a son,” will produce any change in the construction. And here the authorities are clear that the word “ son” is nomen collectivum, and does not limit the general intent of the word issue further than would the word “male;” and that its only effect is to make the estate tail-an estate in tail male. In Byfield’s case cited by Lord Hale, 1 Ventr. 231, “ Devise to A. and if he dies not having a sont then to remain, &c.” the word son was held to be “ nomen collectivum” embracing all the male issue; and A’s estate was therefore an estate tail. It will be perceived, that in this case the word “ issue” was not used, so that it is much stronger than the case at bar. Robinson v.,Robinson, 1 Bur. 38, was a devise to Hicks for life, and no longer, and after his decease “ to such son as he shall have,” and for default of such issue, then over. Here the question was directly as to the estate of the first taker, and Hicks’ estate was held an estate tail.
    These cases are strictly in point; .but they are sustained by the general current of all analogous cases. Thus in Wild’s ease, 6 Rep. 16, b. a case is put as good law, that if A. devise to B. and his children or issues, and he hath not issue at the time of the devise, it is an estate tail. Sonday’s case, 9 Rep. 127. was a devise to his son T. and “ if he has no issue male,” his son R. shall take; held an estate tail in T. In Wharton v. Gresham, 2 W. Bl. 1083. Mr. Serjeant Glynn puts the very argument, which the counsel on the opposite side of the present case are urging in favour of the word “ sons;” but the Court, nevertheless, held those words to convey an estate in tail-male; doing no more than limit the word ‘ issue’ to mean issue male. In Denn v. Slater, 5 T. R. 335, the devise was to Isaac, but if “ he should die loithout male heir,” (using the singular number) then over; and Isaac was directed to pay an annuity : held, that Isaac took an estate tail. This case directly involved the estate of the first taker, and' is made doubly strong by the decision of Pells v. Brown. Cro. Jac. 590, in which it was ruled, that where the devisee was directed to pay an annuity, he must take a fee-simple. See also Blaxton v. Stone, 3 Mod. 123 cited in Denn v. Slater. In Seale v. Barter, 2 Bos. 6 Pul. 485, devise to J. S. and Ins children, and for default of such issue, then over: held, an estate tail ; and the Court comment on the words used in Robinson v. Robinson, “ such son as he should, have,” and approve the construction that these words embrace all the male issue. See also to the same purpose, Hodges y.,Middleton. Doug. 431. Clutch’s case, Dyer, 330, cited 2 Bos. & Pul. 327- Romilly y. James. 6 Taunt. 263. Barlow y. Salter, 17 Ves. 479. See also the arguments of Chancellor Kent and Senator Hammond, in Anderson v. Jackson, 16. Johns. 397,424.
    The last case necessary to be cited is that of Tenny y. Agar, 12. East, 253. There the devise was to John Agar and his heirs, forever, on condition to pay an annuity; and in case the said John and the annuitant hoth happen to die without having any child or issue, then he devises “ the reversion and inheritance” over; held an estate tail in John Agar, with remainder-in tail to the annuitant, See particularly the opinion of Bayley J. at page 262.
    Upon the whole, these authorities sustain the position, that Stobo Bedon in the case before the Court would, under the English law, have taken an estate in tail-male. But it is said, that Byfield’s case is not in point, because by the rule of law in England, there being no words of perpetuity or limitation in the gift to A. his son could not take at all, and that the heir of the the testator would take the estate, even though A. died leaving a son. This inference is wholly inadmissible. The devise is to A. and if he dies without having a son then to the heir of the teslator. By the very words of the will, the devise over cannot take effect, if A. leaves a son; and what then is to become of the estate 1 The testator’s heir is barred while A. has issue in existence, and the Court is necessarily bound to imply that some benefit was intended to the issue, and that benefit must be presumed to be the estate after A’s death, or in other words the inheritance; and by the rule in Shelly’s case, this enures to expand the estate of the testator.
    But what can be said to Tenny v. Agar, and all those cases where the devise is expressly in fee-simple absolute to the first taker, and where the Court nevertheless held, that the estate was cut down to a fee-tail by the subsequent words. Peyton v. Smith, and all the cases quoted by the counsel on the other side, to establish a difference between a devise without words of limitation in this State and in England, are at once answered by these cases. For admitting that the first words of the devise to Stobo Bedon carried a fee-simple absolute, these cases all shew, that that estate is under the control of the subsequent words of implication, and depends entirely upon them.
    It is also objected that this construction will defeat the intent of the testator, by defeating the devise over. But may not the same objection be made to the construction contended for on the other side. Is it not obvious, that the sons of Stobo were the primary objects of the testator’s bounty? and yet if his estate be held a fee-simple absolute, his daughters would be intitled to an equal portion of the estate, in case he died leaving a son. The fact is, that the testator never imagined such a case as that which has now occurred, and if he had, the probability is, that he himself would have been unable to express his intention. The Court must therefore be guided by the law, as it has been de'cided in similar cases; and the residuary devisees and heirs at law, claim the benefit of the doctrine of those decisions, which they say is the law of the land.
    If then the estate of Stobo be an estate in tail-male according to the law of England, as recognized in this country in the various cases of Carr v. Jeannerett, Carr v. Porter, Jones ads. PSstell & Potter, Mazyck v. Vanderhorst, &c. then it is expressly settled, that such an estate in this country is an estate in fee-simple conditional. See 2 M’C. 66, 75. M’C. Ch. 60. Harp. 92, and Mazyck v. Vanderhorst, Charleston, 1828.
    
      The issue of Stobo then having failed, the condition is broken ; and if so, it is admitted on all hands, that the donor and those representing him, are then intitled to call into action the right of reverter and to claim the estate. A grave question then arises as to the parties in whom this right is vested. Is such a right embraced in the statute of wills 1 Is it distributable under the statute of distributions, or does the heir at common law take 1 Does the residuary clause in the present will, convey the right 1 These questions are important, but as they do not necessarily arise under the special verdict in this case, it is unnecessary to detain the Court to consider them.
    Legare, for the appellee, in reply.
    That a remain dqr cannot be limited upon a fee-conditional, is a point too well settled to admit of debate, were the reasoning in Preston on Estates, better founded than it is. But in fact it has no foundation whatever. By the feudal law, a gift to one and the heirs of his body, was a strict entail, but the Courts broke the entail by construction, and declared the estate a fee-conditional. The statute de donis was intended to restore the old law, and the Judges held that the way to effect this, was to construe the estate-tail a particular estate; and hence the specific difference between a fee-conditional and an estate-tail is, that the latter is, and that the former is not, a particular estate. 1 Bur. 115. A remainder cannot, therefore, and never could, be limited upon a fee-conditional; for the condition does not abridge the estate, which remains, as at common law, an entire fee: and there is no period whatever, in the history of the law, when it was ever permitted to limit a remainder upon a fee.
    The limitation to the plaintiff can only prevail in this State as an executory devise. And whether it were intended to take effect upon the death of Stobo, or upon an indefinite failure of his issue male, it is in either case equally unavailing; for in the first supposition, the period limited for the happening of the contingency has elapsed, and in the second, the limitation itself is void for remoteness.
    To construe Stobo’s estate a fee-conditional, would serve no purpose of the testator. It would not aid the limitation over, nor is it necessary in favour of the issue of Stobo, as they are provided for, by construing the father’s estate a fee. He did take a fee expressly. See Dunlap v. Crawford, 2 M’C. Ch. 171. Peyton 
      v. Smith, <fec. And the Court is now asked to restrict it with a ooa^bion, not because the testator has intimated such condition, or because his intention is in any particular to be aided by it, but simply because in the English Courts, an estate-tail would bo implied from necessity, in order to effectuate the intention of the testator. The reason of the English rule does not apply. There, as well as here, an estate is never raised by implication, except where it is necessary to carry the entire intention of the testator into effect. Carr v. Porter, 1 M’C. Ch. 79. where the authorities are collected and examined.
    As to the argument, that the limitation over to the plaintiff was intended to take effect upon a failure of the issue male of Stobo, at any period within the life time of Richard, it is sufficient to say, that the testator has expressed no such intention, nor is it to be gathered by any implication. The failure of issue contemplated was either indefinite, or it was restricted by force of the words “ leaving” and “ son,” to the period of Stobo’s own death. There is nothing, whatever, from which a failure of issue at any intermediate period, can be inferred. The devise to Richard being for life, would at best be but .a feeble ground for such an implication, when the devise to him is followed by that to his son in fee. But the force of that implication is destroyed altogether by limiting the contingency to the death of Stobo ; for there was a probability that Richard might survive him, and a greater probability that he should, than that he should survive not only Stobo, but also survive any son that Stobo might leave surviving him.
    Desaussure, for motion, in reply.
    It is unnecessaiy to fatigue the Court with a repetition of arguments and authorities. It is conceded that in England, the estate of Stobo would be construed an estate-tail; and it would seem to follow as an inevitable consequence, that in our Courts it must be construed a fee-conditional. But it is said, that the reason of the rule does not apply, because the limitation over to the plaintiff would not be aided by the construction; for being a limitation over after a fee-conditional, it is void both as a remainder and as an executory devise. This is assuming more than can be admitted, or established. But without repeating the reasons which have been urged for the contrary opinion, it will be sufficient to say, that although the point was decided collaterally in Vanderhorst w. Mazyck, yet it was by no means directly. made, or deliberately •considered. Nor perhaps has the question ever been submitted to a direct decision, except in the case of Cruger v. Heyward, and there, after the fullest consideration, it was held that a remainder might be limited after a fee-conditional.
    Regarding the limitation to plaintiff as an executory devise, intended to take effect within the life of the plaintiff, it was certainly valid, though limited to take effect after an otherwise indefinite failure of issue. This view of the case has not been answered except by denying, that such was the intention of the testator. And to prove this a dilemma is presented, which neither the terms of the will, nor the obvious intention of the testator authorize. What would have been the testator’s particular intent, could he have foreseen the state of things which has occurred, it is conceded on all sides is a matter of uncertainty. But his general intent is plain. It was obviously to keep the estate in his own blood and name, as long as either of his sons survived. This general intent is such as the law permits, it is consistent with every other intention expressed by the testator, and must govern the decision of this case.
    Suppose, however, that the limitation over was intended to take effect only m the event of Stobo’s not leaving issue a son living at his death ; did not that contingency actually occur'? The issue could only take by descent, and not by purchase; and it is a well settled point, that an infant in ventrp sa mere, though a life in being for all other purposes, cannot take by descent at common law. see 2 Bridgman’s Index, 62, pi. 24, where the authorities are collected. The words “ leaving issue a son,” must be understood to mean a son capable of taking at his father’s death ; and as there was none such at Stobo’s death, the limitation over to plaintiff vested.
   O’Neall J.

This case'is said to be of great importance to the parties, on account of the value of the property involved; and it is surely of equal importance to the community, from the principles to be settled by it. The law of real estate ought from its continual and daily application to the transmission of estates by descent, and their conveyance by deed, or devise, to be plain and intelligible ; but as transmitted to us from that country, from which our legal institutions are derived, it is so incumbered by artificial rules and distinctions, that even the most learned there have acknowledged themselves to be but apprentices to the science, jn gtate much has been done both by the Legislature, and the Courts, to simplify its rules; but the work is still in its-infancy, and much remains tó be done, to rear up the superstructure, on principles clear and comprehensive as our general system is intended to be, and consistent with our acknowledged and wise policy of unfettering estates wherever we can. This work imposes upon the Courts a great responsibility, and one which is not a little enhanced by the fact, that we are only the expositors and not the makers of the law. While, therefore, we might be willing in another department to lay the axe to the root of the tree, by enacting an entire new system for ourselves; yet in this we are bound to follow the law, and according to its principles to decide the cases presented to us. Proceeding on the maxim, to obey the law wherever it speaks; and where it is silent, or the reason for the rule has ceased to exist, to resort to principles, analogous to the question before us, which may be deduced from other cases; we shall, I think, be enabled so to decide this case, as to make it one amongst its predecessors, tending to simplify the doctrine applicable to estates created by devise.

In the view which I propose to take, it is only necessary to consider what estate Stobo Bedon took under the will of Josiah Bedon. In England it may be conceded, that he would have taken an estate, in tail-male, in order to give effect to the testator’s intention. In 2 Fonbl. 56, it is said, “ an estate may be enlarged by implication ; as where an estate is devised to A. generally, and for want of issue, the remainder over to B.; A. shall take an estate-tail by implication. For though the devise to A. generally would of itself pass only an estate for life, yet as no benefit is given to B, while there is any issue of A. the consequence would be, that as no interest springs to B. and no express estate is given to the issue of A. after the death of A. the intermediate interest would be undisposed of, unless A. were considered as taking for the benefit of his issue, as well as of himself; and as the words are capable of such amplification, the Court naturally implies an intention in the testator that A. should so take, that the property might be transmissible through him to his issue; and he is therefore considered to take an estate-tail, which will descend on his issue.” It is obvious from this authority, which is the substance of all the cases on the subject, that the implication is raised for two reasons: first, that the first taker could not, under a general devise, take more than a life estate ; and secondly, that to enable the issue to take any interest at all, the estate of the first taker must be considered to be for their, as well as his benefit. This was but giving effect to the testator’s intention, by the creation of an estate, which would not defeat any part of his will: for the remainder man’s rights would not necessarily be defeated by the estate being considered an estate-tail. After the statute de donis the Judges divided the estate into three parts ; first, the estate for life in the first taller; second, the estate to the issueperformam doni ; and third, the reversion : Each of these estates was the subject of either grant, or devise, and therefore all the objects of the testator’s bounty could be provided for consistently with the rules of law. But the estate-tail never having existed in this State, it is necessary to consider, whether we should* regard every estate, which in England would be construed a fee-tail, as a fee-conditional at common law.

In order to enable us to decide this question, it is necessary that we should carry with us the main reason of the English doctrine, to wit: that the intention of the testator is to be effectuated and not defeated. Implication, either to create or enlarge an estate, must be a necessary one apparent on the face of the will. Carr v. Porter, 1 M’C. Ch. 79. The issue cannot take by implication as purchasers, but must take, if at all, by descent. Now, there is no necessity apparent on the face of the will, that they should take in fee-conditional. If they would otherwise take nothing from their ancestor, as would be the case in England, then the necessity of the implication would exist; but if they may take by descent in this State from the seizin of their ancestor in fee, and I propose hereafter to shew that they can, then the necessity does not exist, and one of the reasons applicable to estates-tail does not apply to this case-

If it were necessary to enlarge the estate of the devisee Stobo Bedon, why might not the words relied on to make his estate a fee-conditional, be construed to enlarge his estate by implication to a fee 1 They are merely used to designate an event, on the happening of which the estate is to go over to another. If this event did not happen, the testator intended that the devisee should talle an estate transmissible to his issue. If it were necessary, for this purpose, to do so, there is nothing surely in the law which would prevent us from enlarging his estate into a fee-simpie- For in the language of Mr. Justice Nott, in Carr v. Porter, 1 M’C. Ch. 81. “ A devise to one for life, with remainder to his , . . . ,. , neirs or issue, is not a direct gift to the issue ; it only amounts to an enlargement of the estate in the first devisee, converting a life estate into a fee-simple, or fee-tail, and rendering it thereby transmissible to his issue.” But it is in order to carry the testator’s whole intention into effect, that these words are construed to make the estate an estate-tail. A fee-conditional would not have the same effe.ct. If the estate of Stobo Bedon is construed a fee-conditional, the estate in remainder to Richard B. Bedon cannot take effect as a contingent remainder; for it would be a fee mounted on a fee, and therefore void. It could not operate as an executory devise, for if the devisee took an estate in fee-conditional, the limitation would be after an indefinite failure of issue, capable of taking per formam doni. So that the intention of the testator must in part at least be defeated by this construction. Is the will susceptible of a construction in law which will give effect to the entire intention 1 It certainly is. If the estate of the devisee is held to be a fee-simple, defeasible in the event of his dying without having issue a son living at his death, the whole intention may be carried into effect. The issue of the devisee, if he should have any, would take the estate by descent as his heirs at law; if he should die leaving no issue at his death, then the limitation over would take effect as an executory devise. If therefore, the reason of the English rule is to be our guide, it furnishes abundant ground for not holding the estate of the first devisee to be a fee-conditional at common law.

The devise to Stobo Bedon under consideration, could not, from its terms even, be considered a fee-conditional. For that estate supposes a possibility of reverter to the devisor. In the case before us he has parted in terms with his entire estate ; if not to the devisee Stobo and his issue, certainly to the remainder-men. That such an estate could never be construed by the English Courts a fee-conditional, becomes manifest, when it is borne in mind, .that it would thereby both defeat the rights of the remainder-men, and in opposition to the testator’s own devise, reserve to himself a possibility of reverter. To create a fee-conditional, there must be either words of inheritance and procreation, or words indicating the testator’s intention, that the estate should pass indefinitely in the general, or special line of the first taker. In the case before us, neither of these occur. The devise to Stobo is genera], and if one to his issue is implied, it is also gen-oral ; and it might be inferred, that tire estate was not intended to descend beyond the son of Stobo Bedon. I have hence satisfied myself, that Stobo Bedon’s estate is not a fee-conditional; and in coming to that conclusion, I have been no little gratified, that it 'diminishes, with us, the means by which estates have been fettered in England for the purposes of aristocratical pride and wealth, and thus promotes both the simplicity and equality of estates in a country, whose pride and boast it has hitherto been, that merit and not birth, successful industry, not hereditary wealth, deserved encouragement.

Under the words of the devise, Stobo Bedon, it is said, can at common law take only an estate for life. The rule was once recognized in this State, that a devise, to pass a fee, must be either by words of inheritance, or perpetuity, or other words clearly indicating the testator’s intention to devise his whole estate. Even under this rule, I think the devisee took an estate in fee-simple, defeasible on the happening of the contingency. For the intention of the testator, to part with the whole of his estate to the devisee, is clear and demonstrable. He gives to him after the death of the testator’s wife, but if he should die without being married, and having issue a son, then remainder over. Under this clause he would take a vested interest, but postponed in enjoyment until the death of his mother. If his estate was only for life, his death before that of his mother, would have been not only the end of his own estate, but also of that of his issue. For we have seen that they must take by descent, or not at all. This the testator certainly did not intend. It is both reasonable and proper in ascertaining his intention as to the estate he intended to devise, to look to all the events, which being contemplated in the will, make it necessary that the devisee should take a greater estate than the words might otherwise convey. The words of the devise to him are enlarged by the words “ and if he should die unmarried, and without leaving issue a son, then remainder over.” Put the case if he had devised to him and his heirs forever; but if he died unmarried, and without leaving issue a son, then remain-c|er t0 Richard: No doubt could have been entertained, but that took an estate in fee-simple, defeasible on the happening of the contingency. What is the difference between the case before us and the one supposed on the score of intention ! There is none. For in both, it is obvious that the estate is only intended to go over to another on the happening of the contingency. If that contingency did not happen, what estate did the testator intend him to take ? Unquestionably the whole which he himself liad. For he has made no ulterior disposition of it. An estate m fee may be as well implied in this State to effect the testator’s intention as an estate-tail in England. The words in the will may be considered as evidencing the testator’s intention to give an estate beyond the devisee’s life, and from them we may imply that he intended his devisee should take in fee.- For unless the words, ‘ dying without issue a son,’ answer this purpose, they cannot avail any thing. The issue cannot take as purchasers. They must take by descent, or not at all. The son of Stobo cannot take in fee-conditional; he must therefore, take as an heir general of his ancestor.

This view is aided by another, the devise over to Richard B. Bcdon for life, and to Ins son and his.heirs forever, was only to take effect if the devisee did not leave issue a son.’ This was a good executory devise, and if the contingency had happened must have been supported. For it is to one in esse, and for life, and must take effect at the death of the first taker, or not at all. It is within a life or lives in being, and twenty-one years, and nine months after, and is not a devise over after an indefinite failure of issue. Butler’s Fearne, 429. If the contingency happened, the testator has in that event parted with the fee in words. If it did not happen, and the executory devise over was thereby defeated, it would seem to violate all our notions of fitness to suppose, that he intended in that event the devisee, whose estate was to have been defeated on the contingency provided, should take in fact no greater estate, than he would have done, had the devise over been unconditional.

In this State, however, words of inheritance or perpetuity, or words indicating an intention to pass the fee, are not now necessary in a devise of land. An absolute original deyise, without words of limitation, will carry the fee. For whether the act of 1824 is considered declaratory, and settling the law, » -n 1 n or the decisions of this Court m the cases oí Dunlap v. Crawford, Hall v. Goodwyn, and Smith v. Peyton, are to be regarded as having over-ruled the former decisions, and fixed the rule by which all cases are tobe governed, is perfectly immaterial. The rule is as I have stated it; and under it, unless there are words in the will by which the estate of Stobo is limited or restricted to a less estate than a fee, the devise to him, is equivalent to a devise to him and his heirs forever. In the will there is no direct devise to the issue of Stobo Bedon. It is true that the leaving ‘ issue a son’ is a contingency, upon which the estate is not to go over. But this does not of itself, and from necessity, restrict the previous estate. There is nothing which authorizes us to conclude that the 1 issue a son’ was ever intended to take per formant doni. If the devisee had died leaving five sons, who of them as ‘ issue a son’ could have taken Í The oldest could not have taken by virtue of the devise, for all answer the description, and either living at his death would have prevented the estate from going over to the remainder-man. They must have all taken, and yet if the testator’s words of contingency were to be considered as creative of an estate in the issue, he probably intended that only one should take. But we can more rationally conclude, that the testator intended, that if his son should have ‘ issue a son,’ he should have the power of disposing of the estate as he chose. He might very well conclude in that event, that he would act as wisely and affectionately by his child as he himself had done.

If the devise had been to Stobo for life, and in the event of his dying without leaving ‘issue a son,’ then remainder over, we would not perhaps be authorized to say he took a fee against the express words of the will. But if we did, we would do no violence to the English canons of construction, in relation to estates-tail. It would at least be as well, subserving the testator’s intention, to declare it in this State a fee-simple, as it would in England to declare it an estate in tail-male. Under' the words of this will we are violating no limitation, in declaring that Stobo Bedon took an estate in fee-simple, defeasible on his dying unmarried, and without leaving ‘ issue a son.’ The contingency upon which the estate was to go over, not having happened, the plaintiff Richard B. Bedon was intitled to no estate in the land in dispute. The motion to reverse the decision of the Judge below, on the special verdict, is therefore refused.

Johnson J. concurred. Harper J. having been of counsel in the cause, gave no opinion.

Motion refused.  