
    * David Hawley and Others, Plaintiffs in Error, versus The Inhabitants of Northampton.
    
      A devises sundry parcels of land to his nephews, B and C, severally, and in distinct parts, to have and to hold the parts devised to B, to him, his heirs ana assigns, forever, on the conditions and limitations after in his will mentioned: and to have and to hold the parts devised to C, to him, his heirs and assigns, forever, on the conditions and contingencies after mentioned in his will. The testator then adds, “ And it is my will and pleasure, and I have made the foregoing devises and bequests with the provision and limitation that, if it should so happen that the said B should decease, leaving no heirs of his body lawfully begotten, and the said C, or any heirs by him the said C lawfully begotten, then alive, that in such case all the clevises and bequests of real estate hereinbefore made to the said B should be and remain to him the said C or such his said heirs. And in case the said C should decease, leaving no heirs of his body begotten, living the said B err any heirs of his body laiofully begotten, in such case all the lands hereinbefore devised to the said Ó shall be and remain to the said B or such his said heirs. But in case both the said B and C should decease, leaving no heirs of either of their bodies begotten, then all the lands herein-before given to the said B and C, or either of them, shall be and remain to the children of my brethren and sister who shall then survive.” This was held to be a devise to the two nephews in tail, with cross remainders in tail, and a contingent remainder to the children of the testator’s brethren and sister living when these estates tail should he spent
    The plaintiffs in error, being the children and heirs at law of Moses Hawley, deceased, brought this writ of error, September term, 1808, to reverse a judgment of this Court rendered in May, 1792, in favor of the defendants in error against the said Moses.
    
    The original action was entry sur disseisin, brought by the said Moses Hawley, counting on his own seisin in fee, and upon a disseisin of the said inhabitants, in which he demanded sundry parcels of land in said Northampton, and also one undivided third part of certain other parcels of land within the same town. Upon not guilty pleaded, the jury returned a special verdict, finding, among other things, a common recovery theretofore suffered by Joseph Hawley, Esq., under whose last will the said inhabitants claimed to hold the demanded premises, and upon which verdict they obtained their judgment.
    At the term of this Court holden in September, 1809, the defendants in error pleaded the general issue, in nullo est erratum ; and the cause coming on to be heard,
    
      Bliss, for the plaintiffs in error,
    suggested that the verdict did not find the common recovery to have been executed, which he contended to be necessary. After some discussion of this question, a copy of the record of the common recovery being produced, and it appearing to have been duly executed, the parties agreed that the former * judgment should be reversed, and a venire facias de nova be awarded.
    Accordingly, at the succeeding term, April, 1810, a new trial was had, and a special verdict was found, in substance as follows: ■— The jury find, that, long before the time when the disseisin alleged in the original declaration is supposed to have been done, to wit, on the 29th day of July, 1751, one Ebenezer Hawley was seised in his demesne, as of fee, of the lands, tenements, and hereditaments named in the declaration, and being so seised, on the day and year aforesaid, at Northampton aforesaid, made and published his last will, duly executed and attested to pass lands, whereby the said Ebenezer devised, among other things, as follows: —
    “ Further, I give to my said wife the whole use, and income, and improvement of my house, barn, and house-lot, and one half of all my land lying in the common field or meadow, so called, in said Northampton, and of one third part of my out or wood lands, for and during the term of her natural life, and no longer.. And I give the one half of,” &c. designating sundry parcels of the land contained in the common field or meadow, and of which he had before devised one half to his wife for life] “ to the said Elisha Hawley,” [nephew to the testator,] “ immediately to be possessed after my decease : and the remainder of the other half of all and each of the last said lots, and the remainder of my homestead, with the buildings thereon, to come into possession immediately after my wife’s decease. To have and to hold to him, the said Elisha Hawley, his heirs and assigns forever, on the conditions and contingencies hereinafter mentioned. — Also I give to the said Elisha Hawley,” [designating another specific parcel of land,] for and during the term of my said wife’s life, and no longer. — Also I give to the said Joseph Hawley, my nephew, the one half of” [designating sundry other parcels of the land, of which he had before * devised the one half to his wife for life,] “ in possession imme diately on my decease, and the remainder of the other half of all the last-mentioned lots or pieces of land, and the remainder of the whole of the before-mentioned lot, which my said wife and the said Elisha Hawley are to have the use of during the life of my said wife; to come into his possession immediately on my said wife’s decease. To have and to hold to him, the said Joseph Hawley, his heirs and assigns forever, on the conditions and contingencies hereinafter mentioned. — Also I give all my woods or outlands to the said 
      Joseph Hawley and Elisha Hawley, two third parts thereof in im mediate possession, and the possession of the other third part thereof expectant on my wife’s decease; to have and to hold the one third part of all my said wood lands to him, the said Joseph Hawley, his heirs and assigns forever, on the condition hereinafter expressed ; and the other two third parts of said wood land to him, the said Elisha Hawley, his heirs and assigns forever, on the condition and under the limitation hereinafter expressed. And it is my will and pleasure, and I have made the foregoing devises and bequests, with this provision and limitation, that if it should so happen that the said Joseph should decease leaving no heirs of his body lawfully begotten, and the said Elisha, or any heirs by him, the said Elisha, begotten then alive, that in such case all the devises and bequests of real estate hereinbefore made to the said Joseph, should be and remain to him the said Elisha, or such his said heirs : —and in case the said Elisha should decease leaving no heirs of his body begotten, living the said Joseph or any heirs of his body lawfully begotten, in such case all the lands before herein devised to the said Elisha shall be and remain to the said Joseph, or such his said heirs: — but in case both the said Elisha and Joseph should decease, leaving no heirs of either of their bodies begotten, then all the lands hereinbefore given to them, the said Joseph and Elisha, and either of * them, shall be and remain to the children of my brethren and sister who shall then survive.”
    
      The jury further find, that the said Ebenezer continuing so seised, on the 18th of August, 1751, died without having altered or revoked his said will, which was afterwards duly proved.
    
      They further find, that upon the death of the said testator, his said widow and his two nephews aforesaid severally entered into such parts of the premises, so as aforesaid devised to them, as by law they were authorized to enter into, and became severally seised of such estates in the devised premises as could lawfully pass to them by the said will. And being so seised, the said Elisha, on the 24th of September, 1755, died without having had issue of his body; and thereupon the said Joseph entered into that part of the premises devised as aforesaid to the said Elisha, and became and was seised of such an estate therein as could lawfully pass to the said Joseph by the said will upon the death of the said Elisha as aforesaid. And the said widow of the testator, being so seised, died on the 2d of March, 1781, whereupon the said Joseph entered into all that part of the premises devised to her as aforesaid, and became and was seised of such an estate therein as might lawfully pass to him upon the death of the said widow, and the death of the said Elisha without issue as aforesaid.
    
      They further find, that after the death of the testator’s widow and of the said Elisha, to wit, in the year 1783, the said Joseph. being so seised of such an estate in the demanded premises as might lawfully pass as aforesaid by the will of the said Ebenezer to him, at a Court of Common Pleas holden at Northampton on the last Tuesday of August in the same year, suffered a common recovery, with single voucher and duly executed, of the lands, tenements, and hereditaments named in the declaration, to his own use in fee simple, in due form of law, and thereupon entered, &c., and became and was seised, as the law requires, of such * an estate therein as by law might or could pass to him by virtue of the said will and the said common recovery suffered and executed as aforesaid.
    
      They further find, that the said Joseph, so seised as aforesaid of all the lands, tenements, and hereditaments named in the declaration, on the 27th of September, 1783, made and published his last will, duly executed and attested to pass lands, in the words following, viz. “ Whereas the fee simple in and of the lands and tenements, which my honored uncle, Ebenezer Ilawley, formerly of Northampton in the county of Hampshire, deceased, died seised of, has lately accrued to me Joseph Hawley, of the same Northampton, Esquire, by virtue and by force of a common recovery suffered by me to be had of the said lands and tenements by my trusty and worthy friend Captain Samuel Ciarle, of Northampton, aforesaid, in and at the last session of the Court of Common Pleas held at the said Northampton, within and for the aforesaid county of Hampshire, on the last Tuesday of August last; of which lands and tenements until then I was tenant in fee tail, and since the aforesaid session, the said recovery executed, and also by virtue of a bargain and sale of the same lands and tenements bona fide made to me by the said Ciarle, by his deed duly executed and registered in the registry of deeds for the said county of Hampshire.
    
    
      “ I, the said Joseph Hawley, because of the great uncertainty of human life, and because I am not at present sufficiently advised to make any other disposition of the aforesaid lands and tenements, and being of sound and disposing mind and memory, (blessed be God,) on this twenty-seventh day of September, A. D. 1783, do give and devise all the said lands and tenements mentioned or described in the writ of entry whereon the said common recovery was suffered, excepting such parts of them as I have heretofore, or shall before my decease, by deed or deeds executed, convey to others; I say I do hereby give and devise all the said lands and tenements (excepting * as is above excepted) to the inhabitants of the above town of Northampton, in their corporate capacity as a town. To have and to hold the above devised premises, with the appurtenances, in their corporate capacity as a town, to them and their successors forever, to be holden forever without distribution, by the town which the General Court of Massachusetts shall consider and deem to be the same corporation as the present town of Northampton in the county of Hampshire, however the present township of Northampton may hereafter by the General Court be divided. — And I most heartily recommend to the said town, that they should carefully see to it that the schools, as the laws of this commonwealth do or shall require the said town to maintain, be supported and maintained in a steady and liberal manner, and by faithful and able masters taught and instructed; an affection to learning and the good education of the successive generations of the lads of Northampton being a great motive to the making this devise, as well as hearty benevolence to the town where I was born and lived most of my days, and which has seen fit from the early days of my manhood to honor me with many instances of their respect, esteem, and confidence. In witness whereof, I the said Joseph Hawley, after appointing the town clerk of the said Northampton, for the time being, executor of this testament, have hereunto set my hand and seal the day and year above written.” And continuing so seised as aforesaid, the said Joseph, on the 10th of March, 1788, died without leaving issue of his body, and without having altered or revoked his said will, which was afterwards duly proved and approved.
    ' The jury further find, that all the lands, tenements, and heredita ments named in the declaration are parcel of the lands, tenements, and hereditaments described and devised in the will of the said Ebenezer, and the will of the said Joseph; and that the said Joseph never made any other disposition of the demanded premises, or any part thereof, * than is made by the said last will and testament of the said Joseph; and that the said inhabitants, after the death of the said Joseph as aforesaid, entered into the demanded premises under and by virtue of the will aforesaid of the said Joseph, claiming to hold the same in tee simple, and became and were seised of such an estate in the same, as by law could pass to them by the said will of the said Joseph. And they, the said inhabitants, being so seised, the said Moses, the demandant, entered into the same premises after the death of the said Joseph, and before the commencement of his action, and ejected the said inhabitants, and became and was seised of such an estate therein as might lawfully pass to the said Moses after the death of the aforesaid widow and of the said Elisha and Joseph ; and thereupon the said inhabitants reentered into the said premises, and expelled the said Moses therefrom, and became and were seised of such an estate therein as might lawfully pass to them upon the death of the said Joseph by virtue of his last will aforesaid.
    
      They further find, that Joseph Hawley, Samuel Hawley, Thomas Haivley, and Lydia Dwight, once Lydia Hawley, were the brothers and sister of the said Ebenezer, the testator; that the said Joseph and Elisha Hawley, named as devisees in the said will of the said Ebenezer, were children and only heirs at law of Joseph Hawley deceased, the brother of the said Ebenezer; that Moses Hawley, the demandant, Dorothy Kellogg, and Lydia Morton were children and only heirs at law of Samuel Hawley deceased ; that Elijah Hawley, Hannah Benedict, Lydia Beers, and Abigail Birdsey were the children of the said Thomas Hawley deceased ; that Joseph Dwight, Josiah Dwight, Simeon Dwight, Seth Dwight, Elisha Dwight, and Anna Pynchon were the children of the said Lydia Dwight deceased ; that the said Samuel Hawley and Thomas Hawley survived the said Ebenezer; and that the said Elisha Hawley, Hannah Benedict, Lydia Beers, Abigail Birdsey, Lydia Morton, Moses Hawley, Dorothy Kellogg, Elijah Dwight, * and Anna Pynchon were the only children of any brother or sister of the said Ebenezer living at the death of the said Joseph Hawley, the devisee aforesaid, and were heirs at law of the said Joseph last named, at the time of his death; and that the said Samuel Hawley, Thomas Hawley, Joseph Hawley, the devisee aforesaid, Elisha Haivley, Joseph Dwight, Josiah Dwight, Simeon Dwight, Seth Dwight, Elisha Dwight, and Anna Pynchon were the only heirs at law of the said Ebenezer at the time of his death ; that the said Joseph Hawley, the devisee as aforesaid, was the only heir at law of his brother, the said Elisha; and that neither the said Samuel Hawley, Thomas Hawley, or Lydia Dwight, survived the said Joseph Hawley, devisee as aforesaid under the will of the said Ebenezer: —
    But whether the said inhabitants committed the disseisin alleged against them by the said Moses, the jurors aforesaid are wholly ignorant, and thereof pray the opinion of the Court here. And if the. Court shall be of opinion, upon the whole matter, that the said Moses Hawley was entitled to recover any part of the demanded premises as devisee under the said will of the said Ebenezer, then they find that the said inhabitants did disseise the said Moses of, &c.; if the Court shall be of opinion that the said Moses was entitled to recover any part of the demanded premises as heir at law of the said Ebenezer, then they find that the said inhabitants did disseise the said Moses of, &c.; but if the Court shall be of opinion that the said Moses was not entitled to recover any part of the demanded premises, either as devisee or heir at law of the said Ebenezer, then they find that the said inhabitants did not disseise the said Moses, &c.
    At the next term, it was proposed by Bliss and L. Strong, the counsel in this action, to furnish the Court with their respective points and authorities, instead of a viva voce argument at the bar. This was approved by the Court; and the reporter thinks he cannot more gratify the profession than by transcribing the manuscripts of the counsel; in * which as much brevity has perhaps been used, as was consistent with full justice to their respective arguments.
    
      L. Strong for the defendants in error.
    
    The inhabitants of Northampton derive a legal title to the land in dispute, under the will of Ebenezer Hawley, and the common recovery suffered by Joseph Hawley. In support of this opinion, we rely upon the following propositions ; at the same time remarking that the argument now urged is not materially different from that delivered previous to the original judgment, except in its arrangement and the addition of some new points and authorities.
    I. In all conveyances, words that would carry a fee may be so restrained by subsequent words as to give only an estate tail.
    I. In common law conveyances. 
    
    8. In a will. 
    
    The case when lands are given to a man and his heirs, and if hi die without issue, remainder over, is sometimes spoken of, by way of illustration, as the common case of an estate tail. 
    
    Even at common law, therefore, if lands be conveyed to a man and his heirs, or to one, his heirs and assigns, and in default of issue, or if he die without issue, or without heirs of his body, then over, the feoffee takes only an estate tail; and in the case of wills, if the limitation over be by the words if he die without leaving issue of his body, the devisee takes a like estate, although the estate devised be charged with the payment of an annuity.
    II. When lands are given to a man and his heirs, or to one, his heirs and assigns, with remainder over upon failure of issue, if the failure of issue be not confined to a life in being, or a limited term of years afterwards, the estate is a fee tail.
    If the first proposition be established, the truth of the second results from the necessity of carrying into effect, so far as it can be done consistently with the rules of law, the obvious intention of testators ; since it is a rule well known and settled that, * III. An executory devise must necessarily vest within a life or lives in being, or twenty-one years and the fraction of a year afterwards. 
    
    IV. A devise of lands to one and his heirs, or to one, his heirs and assigns, and if he die without issue, or without leaving issue, or leaving no issue, then over; such directory words are construed to be words of limitation, and to intend an indefinite failure of issue, and the devise over can take effect only as a remainder.
    1. They are words of limitation. This appears from the cases already cited, as it respects the words without issue and without leaving issue. And it was holden in Forth vs. Chapman, 
       and in Atkinson vs. Hutchinson, 
       that there was no difference between a dying without leaving issue and leaving no issue. So, where a testator, in case his eldest son should die, and leave no issue of his body, after his decease, gave the lands to his youngest son and his heirs j it was held that the eldest son took an estate tail by implication, and that the devise to the youngest son was a remainder.  The words, then, without issue, without leaving issue, or leaving no issue, are all to be construed as words of limitation, and to give the first devisee an estate tail, unless they confine the failure of issue to a life in being and a limited term of years afterwards. But,
    2. They intend an indefinite failure of issue. In a formedon in remainder or reverter, whenever the issue of the first donee fail, he is said to have died without issue.  And, probably in allusion to this circumstance, when lands are given to a man and his heirs, and if he die without issue, remainder over, the words dying without issue, though, in common parlance, they are understood a dying without issue at his death, denote a failure of issue at an indefinite future period.
    For many years after executory devises were introduced, the construction of expressions respecting a failure of issue, when applied to terms and chattel interests, was frequently varied ; and at no period has it been perfectly * uniform; yet the construction of those expressions has been generally the same with respect to real estates. In the latter part of Queen Anne’s reign, the courts took a distinction between devises of terms and of freeholds; determining that in the latter case the words if he die without issue are inserted in favor of the issue, and must intend an indefinite failure of issue; but in the former they could not have been inserted in favor of the issue, as the father takes the whole term, which will not go to his issue, but to his executor, and must therefore limit the dying without issue to the time of the death.  The same distinction was taken in Forth vs. Chapman, and Atkinson vs. Hutchinson, and has been recognized by Lord Mansfield, 
       Lord Hardwicke, 
       and Lord Kenyon. 
       Many other cases may be cited as in point. 
    
    From an examination of the authorities now cited it will appear, that the words if the said G. happen to die without issue,—if W. should depart this life not having issue, — in case all my said children should die without leaving any issue, — if the said S. should happen to die without leaving issue of his body, — in case T. should leave no such child or children, — if A. should die and leave no lawful heir, — if either of my nephews shall depart this life and leave no issue, — in case my said son shall die and leave no issue of his body, — have all been construed to intend an indefinite failure of issue.
    
      Powell, in his edition of Fearne on executory devises, 
       after stating a number of cases upon this subject, thus proceeds, — “ The conclusion from these authorities has been, that the words dying without leaving issue shall have the same construction as the words dying without issue, in the limitation of real estates, whenever the limitation over can take effect as a remainder under that construction. It is a decision founded on the established doctrine, laid down by Sir Matthew Hale, in the great case of Purefoy 8f Rogers, and resorted to, recognized and proceeded upon by all the courts m many subsequent decisions.”
    * The devise over, therefore, can take effect only as a remainder, since it must take effect, if at all, as a remainder by way of executory devise; and it is a well-established rule that
    V. Where an estate can take effect as a remainder, it shall never be construed to be an executory devise, 
    
    
      VI. The words used in the will of Ebenezer Hawley are tantamount to those used in the fourth proposition, and should receive a similar construction.
    1. This should be the construction of the words limiting the estate over upon the death of Joseph and Elisha.
    
    It will probably be agreed, that the words heirs of the body are in all instances as effectual to create an estate tail, as the word issue, and sometimes more so; since they are the technical words of limitation ; and the word issue is as often used as the word children; and is sometimes a word of purchase, when the word heirs would not be. 
    
    Here the words are, “ in case both the said Joseph and Elisha should decease,” &c. One devised a messuage to Alice, his daughter, and her heirs, another messuage to,Thomasin, his daughter, then eight years old, and her heirs; and if she died before she attained the age of sixteen years, living Alice, then he willed that Alice should have Thomasin’s share to her and her heirs; and if Alice died having no issue, living Thomasin, that Thomasin should have and enjoy Alice’s share to her and her heirs; and if both daughters should die having no issue, a devise over to T. S. and his heirs ; and it was holden that these, were estates tail, and not conditional fees.  If the testator then, in the case at bar, had said, if the said Joseph and Elisha shall decease without heirs of their bodies, it might well be conceded that the limitation over would have been on a contingency too remote. But it has been shown, that no difference exists between the words without issue, without leaving issue, and leaving no issue ; and that the words heirs of the body are even less restrictive in their operation than the word issue. The conclusion therefore is obvious, * that “ leaving no heirs of either of their bodies begotten,” intends an indefinite failure of issue in Joseph and Elisha, unless other words are to be found in the will, which would confine this otherwise general dying without issue to a life in being.
    • Should it be contended, that the limitation over was to persons in esse, and thus, in the contemplation of the testator, to take effect during a life in being, we answer, 1. That, under the word children, the testator’s grandchildren might have taken, if his immediate children had been all dead.  And it has been determined, that a devise to children, if it be an immediate devise, relates only to children in esse at the time ; but if a devise be limited to children oy way of remainder, or upon a contingency, which, in the contemplation of the testator, is uncertain when it may take place, if it ever happen at all, it is not confined to those in being at the making of the will, but includes those that are born after the testator’s death.  3. In many cases, where the limitation over was to one in esse, that circumstance has not varied the result.  3. It is by no means certain, that the persons, who should be adjudged capable of taking under the word children, would take only estates for life.
    It may possibly be said, on the authority of a note of Douglas, in Doe vs. Fonnereau, 
       that a double contingency may be implied ; as Douglas says, “ A double contingency, as the expression is used in that case, is where an estate in trust or by executory devise is so limited, that the time when it is to vest in possession will in one event fall within the limits allowed by law, and in another will exceed them.” But it is plain that the case does not justify that definition. In a double contingency, the time will in neither event exceed the limits allowed by law. In one event it will take place as a remainder, and in the other, viz. the absolute failure or non-existence of a precedent estate, as an executory devisee. 
    
    2. The same construction should take place in reference to the words limiting the estate to Joseph and Elisha.
    
    
      * I. As to their immediate estates. It has already appeared that, had the devise been to them, their heirs and assigns, and if they died leaving no issue, then over, they would have taken estates tail; and that the words leaving no heirs of the body begotten are equipollent to the words leaving no issue. If, therefore, the construction of this clause be different, that difference must arise from additional words, tending to show the intention of the testator to give a fee simple, or to limit the dying without issue to a life in being.
    We say, in the first place, that there are no such words tending to show the intention of the testator to give a fee simple. The use of the word assigns can make no difference in the construction, as appears from the cases cited under the fourth proposition, where indeed the same word is made use of, and from the case of Scot vs. Smart, before cited. In Ellis vs. Ellis, 
       Lord Ellenborough observed, that “ as to the word assigns, which follows heirs, we cannot collect any different intention from the addition of it, than if 
      the word heirs alone had been used; for whether an estate be given to a man and his heirs, or to him and his heirs and assigns, must be the same thing in legal construction.
    In the second place, there are no additional words in this will, which can be construed to limit the dying without issue to a life in being. Had the testator said that in case the said Elisha shouldS decease, leaving no heirs of his body lawful'v begotten, living the said Joseph, the case would be precisely that of Pells vs. Brown; 
       but then his intention would not have been expressed. He therefore very properly says, living the said Joseph, or any heirs of his body lawfully begotten, thus making the failure of issue indefinite,
    It "may perhaps be said, that this estate is limited over to Elisha upon Joseph’s death, “ leaving,” &c., and the said Elisha or any heirs of his body then alive; and that then and when are adverbs of time; and that then in this will * must refer to the time of Joseph’s death. — But upon examining the case, upon which that idea w-as thrown out by Lord Kenyon, 
       and other like cases,  and comparing the different limitations to Joseph and Elisha, the objection, although the word then be used here as' an adverb of time, will appear to be unfounded.
    It is evident, therefore, that Joseph and Elisha took estates tail, part thereof in possession, and part in remainder after the widow’s life estate.
    2. What estate vested in Joseph upon Elisha’s death ? We answer, an estate tail; for as Joseph and Elisha immediately took estates tail, we contend that for the same and additional reasons, they took cross remainders in tail.
    Testator devises Blackacre to T. and his heirs, and Whiteacre to F. and his heirs. Item. I will that the survivor of them shall be heir to the other. T. and F. took cross remainders in tail.  Devise of all my lands in M. unto my two daughters E. and A. and their heirs equally to be divided ; and in case they happen to die without issue, then over: held that E. and A. have cross remainders.  So where A. seised of lands had issue, two sons, and devised part to his eldest son in tail, and the other to, his younger in tail, with this clause in the will, “ that if any of his said sons died without issue, that then the whole land should remain to a stranger in fee.” It was adjudged that upon the younger son’s dying without issue, the eldest son should have the land by implication.  In the case at bar, the words are, “ In case both should decease, &c., then all the lands herein before given to them, the said I. and E., shall be and remain,” &c.: and it has frequently been decided, that wherever cross remainders are to be raised by implication between two and no more, tne presumption of law is in favor of cross remainders. 
    
    But here the cross remainders are express. The estate was to continue in Joseph and Elisha, and the heirs of their bodies, so long as any of them were in being, and no part of it was to go over until a failure of issue in both. Should * it be determined, that the testator gave a fee simple to Joseph and Elisha, and afterwards, upon Elisha’s death, a fee simple to Joseph in Elisha’s share, the devise must be read thus,— “If Elisha shall die, leaving no heirs of his body begotten, living J ■seph or any heirs of his body begotten, the land given to Elisha shall be and remain, by executory devise in fee simple, to Joseph, if alive, but if Joseph should be dead, and any heirs of his body alive, Elisha’s part shall be and remain, by executory devise in fee simple, to the heirs of the body of Joseph. And if the. said Joseph shall die,” &c., in the same manner. Such cross executory devises were never heard of; and the mere statement of the case must show that these are cross remainders. Besides, had the testator intended an executory devise, he would not in every instance have used the word remain, 
       but another word, expressing a different idea.
    Should it be objected that, as, in case of Joseph’s failure of issue, the testator directs that all the devises and bequests of real estates shall be, &c., to the said Elisha or such his said heirs, this furnishes an argument, that the children of Elisha would have taken a fee simple by purchase, we reply, that the plaintiffs in error can have no possible interest in this objection ; since, were the estate given to Joseph but a life estate, the limitation over upon Joseph and Elisha’s dying, leaving no heirs of either of their bodies, would enlarge that estate for life to an estate tail; and if the words “ all the devises,” &c., or, rather, “ all the lands,” would carry a fee, the plaintiffs are claiming by virtue of an executory devise, so constructed, as to vest, if at all, after an indefinite failure of issue. But there is no ground for making it, since the word or is frequently taken as the word and; 
       and it is believed that no case can be found, where, after a limitation to the ancestor for life, either in possession or expectancy, the words heirs of the body have been so construed, as to give such heirs of the body of such ancestors an estate by purchase; unless •* words of limitation were superadded by the will, or unless the words heirs of the hody were so qualified by subsequent words, as necessarily to intend first and other sons, &c.  in this case there are no such qualifying and explanatory words, and heirs of the hody must therefore be considered words of limitation, and not of purchase.
    But even upon the plaintiffs’ own hypothesis, that the devise to jElisha was a fee simple, the demandant, as to his share, could take nothing by the will; for after the death of Elisha and the widow, the share given to Elisha vested in possession in Joseph, either in fee simple or in fee tail; — if in fee simple, the estate became alienable ; — if in fee tail, the remainder over has been defeated by the common recovery suffered by Joseph ; — since it is a rule of law, that
    VII. Where an executory devise, carrying the whole or a part of the fee, becomes vested, all subsequent limitations at the same time cease to be executory, and become void or vested in interest.
    For many years after the introduction of executory devises, it seems to have been holden, that an executory devise, to take place after a pending executory devise, which would carry the whole interest, was void.  But it was afterwards settled, that wherever the limitation of a particular estate, as for life or in tail, vests by executory devise, the subsequent limitations at the same time vest in interest, cease to be executory devises, and become mere vested remainders ; and that “ whatever number of limitations there may be after the first executory devise of the whole interest, any one of them, which is so limited that it must take effect, if at all, within twenty-one years after the period of a life then in being, may be good in event, if no one of the preceding executory limitations, which would carry the whole interest, happens to vest. But when once any preceding executory limitations, which carries the whole interest, happens to take place, that instant all the subsequent limitations become void, * and the whole interest then becomes vested.” 
    
    As to Elisha’s share therefore, the plaintiffs have no claim to recover, either by virtue of an executory dévise, or a remainder after an estate tail in Joseph.
    
    The Court will without doubt give a liberal construction to wills ; and so far as the testators have expressed themselves clearly, or as their intentions can be gathered from the words they have used, so far the Court, if it can be done consistently with the rules of law, will effectuate those intentions. In Dacre vs. Dacre, 
       though Justice Butter differed from the rest of the court as to the meaning of words used, yet in the general principle, as above stated, the court agreed in opinion. But it by no means results from that principle, and indeed it would be inconsistent with it, that courts of justice should give to such words a forced construction, in order to carry into effect what they may conjecture to be the intention ; and, as was said by the dissenting judge in the case above mentioned, as the question what was his intention in a particiukr case has not been expressly asked of the testator, unless his intention be expressed by the words he has used, it is but conjecture what would have been his answer. If the language of the testator be obscure, the whole will must be examined, and such a construction given to the words used, as will support the general and legal intent.  In the present case we contend that the testator has expressed himself not only with almost technical precision, but by words, to which, when unexplained by other words, frequent decisions for more than a century past have affixed a determinate meaning; and that the general intention of the testator would be carried into effect by giving to those words the construction they would naturally and legally receive.
    It is true it may be objected to .the construction we contend for, that the testator could never have intended an estate, which would descend to the eldest son in exclusion of the other children ; but it may be replied with equal * confidence, that neither could he have designed such an estate as would be defeated in its subsequent limitations, in case Elisha had died leaving one child, which had survived him but an hour. This is not matter of conjecture, but of certainty ; and the will must be construed at the moment of the testator’s death.  His intention undoubtedly was to preserve the estate in the family; and after the enjoyment of it by one branch, till that was spent, to return it to the possession and enjoyment of the remaining branches.
    In relation to the general policy of executory devises, it is presumed that, had the distribution and liability of the estates oí deceased persons been immemorially the same in England as in this country, they would never have been carried to their present extent. They have originated principally in local ideas of con venience, and have grown up in that country, for the most part, since the settlement of this; but they are frequently spoken of as inconvenient estates,  and are admitted with great caution, and only in cases of necessity. 
    
    
      Bliss.
    
    The plaintiffs in error say that, upon the special verdict-found upon the venire facias de nova, judgment ought to be rendered for them, either as devisees under the will of Ebenezer Hawley, or as heirs at law of the said Ebenezer, or of Elisha Hawley.
    
    They principally rely upon their title under the will, that thereby a proper executory devise was made to the original demandant, th"¡ devisor departing with the "whole fee simple, and, upon the happen ing of a certain event, limiting the estate to them. A fee simple was given to Joseph and Elisha, determinable upon certain events, which have happened.
    The fundamental rule in construing wills is, that the intention of the testator must be pursued, unless that intention contradicts a plain rule of law :  the meaning of which is, that it must not be such a limitation as the law does not allow, but not that the words must be taken precisely * in that sense which the law generally gives them.  If this is a governing rule, the original demandant was entitled; for it would be impossible for a man of plain common sense to read the will, and avoid the conclusion that the testator meant that he should have the estate if Joseph and Elisha left no children when they died, — especially in this country, where estates tail-are much less frequent than in England. And every lawyer, whose head was not filled with contingent and cross remainders, would be of the same opinion. The devise is a plain, correct, and even technical construction of a fee simple. It would be valid in a deed, and much more in a will, to effectuate the intent of a devisor. Is, then, the intention of the devisor, in the after limitations, contrary to any plain, fixed principles of law ?
    The after restrictions do not alter the nature of the estate first given, but declare that, upon the happening of a certain event, it should cease. • They direct when the ulterior devise shall take effect, but do not change the precedent- estate. An express estate, according with the intent of the devisor, ought not to be changed by implication.  The cases cited in the margin all show, if it needed authorities, that the first taker had a fee simple, and not a fee tail, and that the devise over was a proper executory devise.  Had the first devise been of a plain, express estate tail, perhaps the result from the authorities would have been different. 
    
    As executory devises cannot be barred by a common recovery, two rules have been adopted, which the plaintiffs in error are not disposed to controvert. The first is, that if a contingent estate be limited to depend upon a freehold, which may support a remainder, it shall be construed a remainder, and not an executory devise;  but even this rule may be set aside, when the manifest intent of the testator contradicts it.  The second rule is, that an executory devise shall be void if it be not limited to take effect within a life or lives in being, and twenty-one years and the time allowed for gestation. 
    
    * The devise over to Joseph, in the event which has happened, is a valid executory devise, and is not affected by the first rule. Indeed, there is a small part of the property wherein a life estate was given to the testator’s widow, but there is a clear devise of a fee simple after it, and the contingent limitations depend not on the life estate, but on the fee simple; so that the rule does not apply to the case,  and the ulterior devise is limited to defeat the estate given before, and cannot be supported by it.  The limitation over is to take effect within the time prescribed by the second rule. This is the case with the devise over to Joseph, which is clearly limited to take effect at Elisha’s death : If Elisha decease leaving no heirs, &fc., living Joseph. The phrase seems to have been adopted in conformity to the leading case of Pells vs. Brown. 
       The cases cited all show that there can be no technical rule of law to prevent the devise being taken in its obvious sense, and limiting it, according to the intent of the devisor, to the time of Elisha’s death. A late case, of Doe vs. Ellis, 
      
      mentions that Lord Thurlow had decided that dying without issue did not mean the same thing as dying without leaving issue.
    
    There have been some cases which have construed the same words, when applied to real and personal estate, in a different way;  but it is contended that, after examining all the cases on the subject, the apparent intent of the devisor will govern in both. Fearne and Powell, his editor, both contend that they mean the same thing. 
      Dying without issue generally means, in both, an indefinite failure of issue, but may be explained by any circumstance showing the testator’s intent to confine it to the time of the death. The words heirs of the body begotten are equivalent to issue or chiir dren, and are descriptive of the persons who are to take. If they have a different meaning, they are limited, by the phrase “ living Joseph,” to his life. The words children, heirs, heirs male, heirs of the body, may be taken as words of purchase, to carry into effect the devisor’s intent. 
    
    
      * But if the devise over to Joseph is void because the contingency is too remote, still the ultimate devise over to the original demandant is valid, and within the time prescribed by law. It is essentially the same with the cases of Pells vs. Brown, Porter vs. Bradley, and Roe vs. Jeffery, before cited. In the first, it was dying without issue living ¡V.; in the second, if he happen to die leaving no issue behind him; and in the third, if he depart this life, and leave no issue, then to B., M., and S., or the survivor of them. These were all holden to be valid executory devises, but neither of them is so strong as the case at bar. . None of them united the two circumstances of the expression leaving no issue, and the living of the devisee over, at the time the devise was to take effect. The expressions are not merely if they die without issue, then to my brother’s and sister’s children who shall then survive; — but if they decease leaving no heirs, &c., then to the children of my brother and sister who shall then survive. The word leaving has no technical meaning annexed to it. In its natural import, it would certainly relate to the time of decease; but all possible ambiguity is done away, in this case, by the phrase children, &c., who shall then survive. The word children, ordinarily, does not mean grandchildren; but the words who shall then survive define the persons most precisely. They must have lived with the first devisees, and must have outlived them, and be alive at the time of the happening of the contingency. So that the candles were lighted, and all burning at the same time, as has been said to be necessary to make a valid executory devise.
    It may be said that, upon the devise over to Joseph upon Elisha’s death, his part of the estate became vested, and the subsequent limitations also became vested remainders. If this position were true, it would affect only a part of the estate; and as to the residue, the judgment is wrong, and the demandant was entitled to recover it. But the plaintiffs in error contend that the principle does not apply to any part of the estate,
    * 1. Because the limitation over to Joseph is so remote, and in that respect plainly distinguishable from the last devise.
    2. Because the devise to the original demandant was an entirely independent executory devise.
    The devise to Joseph could in no sense support the after devise, and the after devise was no way dependent on the devise to Joseph. He would have no greater control over the last devise than before, unless he was tenant in tail in possession. The time when it was ascertained whether Joseph had heirs was not the time of the vesting of the first executory devise, and therefore the principle does not apply.  The persons must then be ascertained, as well as in esse. Where one preceding limitation vests, which carries the whole interest, the subsequent limitations become void ;  but if the devise over to Joseph were for life only, the whole interest not being devised, the other devises remain executory; and if the de vises were void, on this supposition, Joseph was only tenant for life, and his suffering a common recovery could not enlarge his estate, or bar the demandant’s claim as heir at law of Ebenezer.
    
    This case may be decided upon the principle of a contingency with a double aspect, being to take effect in one way upon one event, and in another way upon a different event; and in the event which has happened, the devise must take effect as an executory devise.  In addition to the cases already cited, those men tioned in the margin show that it is a good executory devise to the demandant.  So also does the case of Fosdick vs. Cornell, 
      
      decided in New Yorlc, where a testator gave his real and personal estate to his four sons and his daughter, and then says, If any of my sons or. my daughters happen to die without heirs male of theii bodies, the lands devised should return to the survivors, to be divided. This was adjuged a good executory devise of the fee to the survivors.
    * But, admitting that the conditions annexed to the first devise of the fee to Elisha and Joseph are void, and that, in consequence, they took a fee simple, the plaintiffs in error ara entitled to a share in Elisha’s part, according to the verdict, as heirs at law of Elisha; and if the devise over to Joseph was only for life, they will take as heirs at law of Ebenezer Hawley.
    
    In reply to the argument for the defendants in- error, it is admitted that words carrying a. fee may, by subsequent words, be so restrained as to make it a fee tail. But it is answered, that this never ought to be done in the case of a will, when it is contrary to the intent of the testator ; and with this principle all the adjudged cases may be reconciled. The cases cited, where there was a plain estate tail first, do not at all compare with the case at b¡m, and may be sound law.  In many of the cases cited for the defendants, there was a clear life estate first given', which would support the remainder.  In some others, the question was merely whether more than a life estate was first given :  so whether a devise to one and his heirs, with a limitation to a collateral heir, is not void. In some cases, to effect the intent of the devisor, it may be construed an estate tail; but in others, for the same purpose, it may be construed an executory devise.  Several of the cases went upon the ground that the limitation was after an indefinite failure of issue ; and where this is clearly the case, the devise over must be void.
    In addition to the answer already given to the distinction insisted upon between real and personal estate, it is to be observed, that from the cases, it is doubtful whether it exists in England. But in this state, where devises apparently made of both, if they are void as to one, are void as to both, and where intestate estates, both real and personal, generally descend alike, the distinction ought not to be adopted.
    The defendants’ counsel must be hardly pressed, to be obliged to contend that the devise over to Joseph was a good devise, and the subsequent limitation void.
    * If the defendants can show clearly that Joseph and Elisha took immediate estates in tail, then perhaps it might be argued, that to effect the intent of the devisor, they might take cross remainders in tail. 
    
    But as we contend the first estate was in fee, to raise up cross remainders between them would not only be wholly unnecessary, but would plainly defeat the testator’s intention. Neither can there be any foundation for altering the devises, to carry that intention into effect. There are no general and particular intent, which are at variance. Elisha and Joseph enjoyed the estate as long as the testator designed that, they should ; that is, during their lives only, if they left no children.
    What the testator would have said, if the very improbable event of one of them having left a child, and that child dying in infancy, had happened, we cannot now tell. And there is no occasion to make a will for him on that account. It will be time enough to argue and decide such a case, when it shall arise. It is enough for us to know that, as the case has happened, he designed to have the estate go to his other nephews and nieces, if Joseph and Elisha left no children ; and every attempt to prevent this is in direct opposi tian to his express intentions.
    
      Strong, in reply.
    The cases cited for the plaintiffs in error are, in general, we conceive, entirely reconcilable with the positions laid down for the defendants in the opening. In some instances they go directly to support them ; and in others, where at first they seem to be contradictory to the authorities we have produced, they will be found, upon examination, to comport with them,and to have been founded upon the principles which we press upon the consideration of the Court. Thus, in attempting to show that the immediate devises to Joseph and Elisha Hawley were in fee, and the limitations over upon their failure of issue confined to the period of a life in being, the counsel for the plaintiffs points • to the case of Pells vs. Brown, the great Magna Charla, as Lord Kenyon called it, * of this branch of the law ; but it need not be mentioned, that with respect to the authority of that case, there can be no dispute between us; although it remains to be shown, that the leading features of that case are visible in this.
    In Hanbury vs. Cockerill the lands were devised to the survivor, in case either should die unmarried or before twenty-one years with out issue; both of which events must have been determined within the compass of lives in being. In Heath vs. Heath, the devise over was, if C. should die without son or sons who should attain the age of twenty-om years. The words son or sons evidently intended first and other sons, the immediate descendants of the father, and upon their attaining the age of twenty-one years the devise over is defeated. Doe vs. Wetton is precisely within the principle, and nearly in the words of Pells vs. Brown. In Gulliver vs. Wicket the child of K. must have attained the age of twenty-one or not. If he did, the devise over was defeated ; if he did not, and left issue, it was also defeated. If in that case he left no issue, the devise over would vest seasonably, and so was good. In Porter vs. Bradley, the words were these — “If my said son should happen to die, leaving no issue behind, him,;” and the court held that the dying without issue was restricted to a life in being. And the words behind him perhaps would naturally enough intend this restriction. But the suggestion of Lord Kenyon, that the distinction taken in Forth vs. Chapman was not founded in reason, was a mere obiter dictum, without influence in that or any subsequent case. The correctness of that distinction, however originating or founded, was afterwards recognized by Justice Buller, in Comberbach vs. Perrin, 
       and by Lord Kenyon himself, in Daintry vs. Daintry. In Roe vs. Jefferey, Lord Kenyon said he had given no judicial opinion in Porter vs. Bradley, respecting the distinction taken in Forth vs. Chapman; and Justice Lawrence, in Everett vs. Cook, 
       declared that Lord Kenyon had never denied that distinction to be law. Fearne, 
       after remarking, in relation to * the case of Porter vs. Bradley, that there is great reason to believe that the words behind him were much relied upon in the decision, says, “ It is impossible to reconcile one’s self to a supposition, that the court would, without such a ground of distinction, have dismissed all attention to the antecedent decisions upon the point.” And Powell 
       observes, with con side rabie warmth, that “If we now decide that the words leaving no issue, as applied to real property, are not to be received in a different sense' from those words, as applied to personal property, namely, as implying a general failure of issue, we shake every title, in which that circumstance has occurred, from the period in which Forth vs. Chapman was determined, down to that in which the case of Porter vs. Bradley occurred,” a period of nearly eighty years. It is not easy therefore to conceive, that the extrajudicial remark of Lord Kenyon, which his cooler judgment must have censured as unguarded and useless, will be suffered in any degree to influence the Court.
    
      In Roe vs. Jefferey, the principal ground of decision seems to have been, that the limitations over were to persons in esse and of life estates. Neither of those circumstances is discerned to be in this case ; certainly not the first.
    But it is said, there is really little matter of dispute between us ; since, according to Lord Ellenborough, in Doe vs. Ellis, Lord Thurlow declared in Bigge vs. Bensley, that there were not less than fifty-seven cases upon this point, and that to call dying without ’raving issue the natural sense of dying without issue, was against ad the cases 1 But how is this declaration to be understood, and for what purpose was it referred to by Lord Ellenborough ? The counsel for the plaintiffs in error would have it understood that Lord Thurlow was speaking generally, as well of limitation of freehold estates as chattel interests. But his observations were confined to devises of personal property. In Forth vs. Chapman it had been decided that * dying without leaving issue intended, in the case of a term, a dying without issue at the time of the death; and it was subsequently holden that the words dying without issue intended a like restriction. But his lordship censures this doctrine, and says that to say in cases of personal property a dying without leaving issue is the natural sense of dying without issue, is against all the cases. Lord Ellenborough then, in a case of freehold estate, when the general words dying without issue were used by the testator, might with much propriety, after stating that these words intended an indefinite failure of issue, refer to this declaration of Lord Thurlow, as proving that even in the case of personal estate they would receive that construction.
    The same observations may be made as to the opinions of Fearne and Saunders, referred to by the counsel for the plaintiffs. So far from insisting that the words without leaving issue or leaving no issue, in the case of freehold, denote a failure of issue without the period of a life in being, they merely contend that the words without ijoue, in the case of a term, should ex vi termini, unless other words are introduced to vary the construction, be considered as intending an indefinite failure of issue.
    The case of Wilkinson vs. South turned upon the words dying without issue, it being the devise of a term.
    As to the case of Fosdick vs. Cornell, cited from the New York reports, it may be at once answered, that if the case were decided entirely upon common law principles, and the decision were not founded on the nature of the estate limited over, and the persons in whom it was to vest, it is not, in our apprehension, notwithstanding the present distinguished character of the courts of that state supported by a single authority in the English books.
    
      The only remaining case now recollected which seems to have any bearing upon the present question is that of Richardson & Ux. vs. Noyes. Whether that cáse was or was not correctly decided, it is sufficient for our purpose that two principal grounds for the opinion of the court were, that the testator could not have intended an estate which would * descend to the eldest son, in exclusion of the other children;—and that the real and personal estate being limited over upon the same contingency, the nature of the personal estate devised denoted the obvious intention of the testator to confine that contingency to a life in being. Now, as to the first circumstance, if it were to be taken as a distinct ground of decision the argument would prove too much, since any estate tail, arising by implication, however strong, or even created by express terms, would be liable to the same objection; — and the second ground renders that case obviously distinguishable from this.
    We see no reason, therefore, to doubt the correctness of the positions we before laid down, as to the effect of words denoting a failure of issue.
    But it is said that in this will there are words which, if unrestrained, would carry a fee; and that where a fee is created by positive words, it can be defeated only by subsequent words equally plain, or by necessary implication. This, however, is saying nothing, as we have all along contended that the cases cited have decided an estate tail to be necessarily implied when a man devises an estate to one and his heirs, and limits it over to a third person upon the second dying without issue. But separate from the words “ leaving no heirs of his body,” the extent of the devise itself is in this case restricted and limited expressly.
    Again, it is urged that by the expression “ to such of my brother’s and sister’s children as shall then survive,” the dying without issue is confined to the time of the death; since the word survive must intend that the person who is to take should be living with the testator, and outlive the rest of the children. But this is clearly .incorrect. To survive means simply to remain in life after the death of another; and without a solecism, a man who had no children might well enough devise to such of his descendants as should survive at the termination of the present century.
    The counsel for the plaintiffs has suggested that these are exceptions to the propositions stated in Purefoy vs. * Rogers, relative to limitations vesting as remainders in all possible cases. The true rule may be that when, upon a fair construction of the will, it appears to be the intent of the testator to limit an estate over, upon any contingency, after a precedent freehold capable of supporting a remainder, such limitation over shall operate by way of remainder, and not as an executory devise. But Fearne, in saying that the rule as stated in Purefoy vs. Rogers may be overruled, means only to say that the rule is not to be applied until the intent be discovered ; not that an executory devise may in any case take effect as such, where there is a freehold capable of supporting the devise as a remainder. Such a species of executory devises would be altogether anomalous.
    In relation to the objections urged against the limitations over being defeated upon the vesting of Elisha’s share in Joseph, we see no reason to vary the position we have before taken. It was once holden that any limitation after an executory devise of the whole interest was absolutely void ; but it was afterwards ruled that until such executory devise vested, the subsequent limitation was good. In the event of the first failing, the second would take effect. But when the first limitation vests, the old principle becomes applicable ; and it is believed that no case can be found, in which it is decided that the last limitation continues to exist after the first, which carries a fee, has vested. It is perfectly immaterial whether the second be remote or independent. Such is the established rule in all cases; and there is not, we believe, a single dictum against it.
    The intention of the testator, if it be consistent with the rules of law, will without doubt be carried into effect. But whether certain words shall in all cases receive the. same construction, when no other words are introduced to vary that construction, there can equally be no question. Were it otherwise, instead of the hardships which would result, as Lord Mansfield said, to the profession, if the * law were so certain that every body knew it, the whole community might be incommoded by its being so uncertain that nobody could know it.
    The principal questions presented to the consideration of the Court in this case have been once solemnly determined after repeated arguments, by the highest judicial tribunal in the commonwealth, and we have reason to believe that the present Court will not, without substantial reasons, declare the unanimous opinion of their predecessors erroneous. It is of the utmost importance that titles which have been once adjudged good should not unnecessarily be again brought into dispute, arid if they are, that known and long established principles of law should be adhered to with strictness in the investigation. Lord Parker observed, in the case of Goodright vs. Wright, 
       that altering the settled rules concerning property was the most dangerous way of removing landmarks ; and Fearne, in his comment on the celebrated case of Perrin vs. Blake, after remarking the uncertainty which would attend all titles, until formally examined by a court of justice, in case the rules of law were to ebb and flow with the taste of the judge, and the fashion of the times, thus proceeds : “ Nay, even a decision of a court of justice, upon the very identical title, would be nothing more than a precarious temporary security; the principles upon which it was founded might, in the course of a few years, become antiquated; the same title might be again brought into dispute ; the taste and fashion of the times might be improved ; and on that ground a future judge might hold himself at liberty (if not consider it bis duty) to pay as little regard to the maxims and decisions of his predecessor, as that predecessor did to the maxims and decisions of those who went before him.”
    
      
      
        Lee vs. Brace, 5 Mod. 266.— Co. Lit. 21, a. — Plowden, 541.— Cotton's case, 3 Leon. 5.
    
    
      
      
        Holmes vs. Meynell, Sir T. Ray. 453. — Wilson vs. Kipping, ib. 426. — Chadock vs. Cowley, Cro. Jac. 695. — Nottingham vs. Jennings, 1 L. Raym. 568. — Barnard & M. vs. Reason, 3 Wils. 244. — Morgan vs. Griffiths, Cowp. 234. — Geering vs. Shenton, ib. 410.
      
    
    
      
      
        Law vs. Davis, 2 Strange, 850.
    
    
      
      
        Long vs. Blackall, 7 D. & E. 100. — Thelusson vs. Woodford, 4 Bos. & Pul. 392
    
    
      
       1 P. Will 664.
    
    
      
       3 P. Will. 259.
    
    
      
      
        Walter vs Drew, Com. Rep. 372.
    
    
      
      
        Buckmere’s case, 8 Rep. 88, a.
      
    
    
      
      
        Target vs. Gaunt. 1 P. Will. 433, 564.—Eq. Abr. 362.
    
    
      
      
        Geering vs. Shenton, Cowp. 410.
    
    
      
      
        Sheffield vs. Lord Orrery, 3 Atk. 288.
    
    
      
      
        Goodtitle vs. Pegden, 2 D. & E. 720.
    
    
      
      
        Lee's case, 1 Leon. 285. — Southey vs. Stonehouse, 2 Vern. 610. — Daintry vs Daintry, 6 D. & E. 314, and Walter vs. Drew, and Goodtitle vs. Pegden, before cited
    
    
      
       2 Fearne's Exec. Devises, 5th edit. 200.
    
    
      
      
        Purefoy vs. Rogers, 2 Saund. 388. — Wood vs. Baron, 1 East. 259.
    
    
      
      
        Lisle vs. Pullin, 2 Strange, 731. — Backhouse vs. Wells, 1 Eq. Abr. 184. — 1 Fearne’s Ex. Dev. 5th ed. 233.
    
    
      
      
        Clatch’s case, Dyer, 330, b. Barnfield vs. Welton, 2 Bos. & Pul. 326.
    
    
      
      
        Crooke vs. Brooking, 2 Vern. 2,107.— Wythe vs. Thurlston, Amb. 555. — 2 Fearne, 361.— Gale vs. Bennett, Amb. 681.—3 Ch. Rep. 86.
    
    
      
      
        Baldwin vs. Karver, Cowp. 314.
    
    
      
      
        Wilson vs. Kipping, T. Raym. 426. — Chadock vs. Cowley, Cro. Jac. 695. Scot vs. Smart, cited 2 Fearne, 204.
    
    
      
      
        Doug. 504.
    
    
      
      '22) 2 Fearne, 496 — Cowp. 314.
    
    
      
       9 East. 382
    
    
      
      
        Cro. Jac. 590.
    
    
      
      
        Wilkinson vs. South, 7 D. & E. 557.
    
    
      
      ' Ellis vs. Ellis.
      
    
    
      
      
        Chadock vs. Cowley, Cro. Jac. 695.
    
    
      
      
        Holmes vs. Meynell, Th. Jones, 172.
    
    
      
       4 Leon. 14, cited in Sir T. Raym. 454
    
    
      
      
        Perry vs. White, Cowp. 780. — Phipand vs. Mansfield, Cowp. 800.
    
    
      
      
        Goodright vs. Cornish, 1 Salk. 226.
    
    
      
      
        Soulle vs. Gerard, Cro. Eliz. 525. — Pain vs. Mallary, Ibid. 832. — Richardson vs. Spraag, 1 P. Will. 434. — Brownsword vs. Edwards, 2 Vez. 243.
    
    
      
      
        Fearne, 227. — Long vs. Laming, 2 Burr. 1101.
    
    
      
      
        Backhouse's case, Pollexf. 33. — Bur gis vs. Burgis, 1 Mod. 115.— Goodright vs. Cornish, 4 Mod. 255, 284.
    
    
      
      
        Stephens vs. Stephens, Ca. Temp. Talb. 238. — Hopkins vs. Hopkins, Ibid, 44. Brownsword vs. Edwards, 2 Vez. 243. — Higgins vs. Dowler, 1 P. Will. 98. — Doe vs Fonnereau, Doug 487. — 2 Fearne, 415. — 2 Will. Sound. 388, h.
      
    
    
      
       1 Bos. & Pul 250.
    
    
      
      
        Thelusson vs. Woodford, 4 Bos. & Pul 64
    
    
      
      
        Doe vs. Fonnereau, Doug 476.
    
    
      
      
        Scatterwood vs. Edge, 1 Salk. 230.
    
    
      
      
        Luddington vs. Kime, 1 L. Raym. 208.
    
    
      
      
        Loveacres vs. Bright, Cowp. 355. — Dacre vs. Dacre, 1 Bos. & Pul. 256. — Gin ger vs. White, Willes, 349. — Doe vs. Halley, 8 D. & E.
      
    
    
      
      
        Fearne’s Ex. Dev. 5th edition, 206, and Powell's note thereon.
    
    
      
      
        Doe vs. Perryn 3 D & E. 490 493
    
    
      
      
        Pells vs. Brown, Cro. Jac. 590. —- Hanbury vs. Cockrill, Roll. Abr. 334. — Heath vs. Heath, Bro. Ch. Rep. 148. — Doe vs. Wetton, 2 Bos. & Pul. 324. — Gulliver vs. Wicket, 1 Willes, 105. — Porter vs. Bradley, 3 D. & E. 143. — Roe vs. Jeffery, 7 D. & E. 589.
    
    
      
      
        Spalding vs. Spalding, Cro. Car. 185. — Driver vs. Edgar, Cowp. 375
    
    
      
      
        Purefoy vs. Rogers, 2 Saund. 388. — Doe vs. Morgan, 3 D. & E. 763.
    
    
      
      
        Fearne's Ex. Dev. 206. — Doe vs. Fonnereau, Doug. 474.
    
    
      
      
        Thelusson vs. Woodford, 4 Bos. & Pul. 357. — 2 Wils. 213- — 7 D. & E. 102.— Duke of Norfolk's case, 3 Cha. Ca. 11.
    
    
      
      
        Fearae's Ex. Dev. 17,19.
    
    
      
      
        Gulliver vs. Wicket, 1 Wils. 105. — Fearne, 20. — Roe vs. Jeffery, 7 D. & E. 589, — Doe vs. Walton, 2 Bos. Pul. 324.
    
    
      
      
        Porter vs. Bradley, 3 D. & E. 143. — Roe vs. Jeffery, ubi supra. — Dyer, 127 o,, in margin. — Goodright vs. Searle, 2 Wils. 29. — Hockley vs. Mawbey, 3 Bro. Ch. Rep. 81. — Wilkinson vs. South, 7 D. & E. 555.
    
    
      
       9 East's Rep. 386. — Bigge vs, Bensley, 1 Bro. Ch. Rep. 190,
    
    
      
       1 P. Will. 664. — 3 P. Will. 259.
    
    
      
       Fearne, 259,260, 261, note a.—2 Will. Saund. 388, note k. — Toovey vs. Basset, 10 East's Rep. 460.
    
    
      
      
        Willes's Rep. 592. — Doug. 264. — 2 Burr, 1100. — Goodtitle vs. Herring 1 East's Rep. 264.
    
    
      
      
        Fearne’s Ex. Dev. 369, 370
    
    
      
      
        Ibid. 464. — Stephens vs. Stephens, Cases Temp. Talbot, 228.
    
    
      
      
        Hopkins vs. Hopkins, Cases Temp. Talbot, 44. — Brownsword vs. Edwards 2 Ves. 243. — Doe vs. Fonnereau, Doug. 487. — Baldwin vs. Carver, Cowp. 309. — Statham vs. Bell, Cowp. 40.
    
    
      
      
        Hoe vs. Gerrils, Palm. 136. — Duke of Norfolk’s case, 1 Eq. Abr. 188. — Vaugh 272. — Gardner vs. Sheldon, Bac. Abr. Uses and Trusts, G. — Miller vs. Moor, Barn. 7, 9. — 1 Sid. 148. — 3 Bro. Ch. Rep. 82. — Richardson & Ux. vs. Noyes, 2 Mass. Rep 56. — Rex vs Marquis of Stafford, 7 East, 521, 526, 527.
    
    
      
       1 Johns. Rep. 440.
    
    
      
      
        Geering vs. Shenton, Cowp. 410. Vide Ginger vs. White, Willes, 348, and the doctrine laid down, 350. — Driver vs. Edgar, Cowp. 379.—Daintry vs. Daintry, 6 D & E. 307.
    
    
      
      
        Chadock vs. Cowley, Cro. Jac. 695.— Webb vs. Herring, Cro. Jac. 416.
    
    
      
      
        Goodright vs. Pullen, 2 L. Raym. 1437. — Doe vs. Holmes, 3 Wils. 241, and Barnard vs. Reason, there cited.
    
    
      
      
        Nottingham vs. Jennings, 1 L. Raym. 568. — Morgan vs. Griffiths, Cowp. 234 . Doe vs. Perryn, 3 D. & E. 484.
    
    
      
       1 Saund. 185, b. William’s note, 6. — Watson vs. Foxon, 2 East, 36.
    
    
      
       3 D. & E. 494.
    
    
      
       7 D. & E. 271.
    
    
      
      
        Page 211
    
    
      
       P.258.
    
    
      
       1 P. Will. 399.
    
   The judges having conferred together on this cause during the vacation, the chief justice drew up the result; and being detained from attending at this term by bodily indisposition, transmitted that result to his brethren here, * which was now pronounced by Parker, J., as follows; the parties expressing a strong desire for the decision of the cause, and Sedgwick, J., sitting pro forma, having been of counsel in the original action.

The plaintiffs, as the children and heirs of Moses Haivley, have sued this writ, to reverse a judgment rendered against their ancestor at the term of this court holden in this county in May, 1792. The judgment was rendered upon a writ of entry sur disseisin, sued by the said Moses, in which he counted upon his own seisin in fee, and on a disseisin committed by the defendants in their corporate capacity. The writ demanded eight several parcels of land, and one third part in common of five other parcels of land, formerly the estate of Ebenezer Hawley, deceased. On a trial upon the general issue, the jury found a special verdict, on which judgment was rendered for the defendants.

On inspecting the record, it appeared to the court that the defendants derived their title under a devise from Joseph Hawley, who, as they argued,-had been seised in fee tail, and had suffered a common recovery to his own use in fee; but the verdict did not find that the recovery had been executed. On mentioning this defect, the defendant’s counsel produced a record of the execution of the recovery; and thereupon the court recommended to the parties to adopt some method by which the execution might appear on record as a fact found.

This recommendation was made on the authority of the case of Witham vs. Lewis. In this case it was holden by the highest judicial authority, that no uses were raised by the suffering of a common recovery, unless the same was executed ; and that the uses arose from the execution.

The parties, therefore, desirous to have the cause decided on its merits, agreed that the judgment should be reversed, and that a venire facias de nova should be ordered. On a new trial, pursuant to such order, the jury have again found a special verdict; and what judgment is to be rendered *on that verdict, is the great question before the Court.

The verdict substantially finds, that Ebenezer Hawley, on the 29th of July, 1751, was seised in fee simple of the tenements demanded ; that he then made his will, and afterwards, on the 18th of August, 1751, died so seised ; that by his will he devised some portion of the tenements to his wife Bethiah for life; that he devised the residue, including the remainder expectant on his wife’s death, to his nephews Elisha Hawley and Joseph Hawley, but severally and in distinct parts, to have and to hold the parts devised to Elisha, to him, his heirs and assigns forever, on the conditions and, limitations after in his will mentioned; and to have and to hold the parts devised to Joseph, to him, his heirs and assigns forever, on the conditions and contingencies after mentioned in his will. The testator then proceeds — “And it is my will and pleasure, and I have made the foregoing devises and bequests with the provision and limitation that, if it should so happen that the said Joseph should decease, leaving no heirs of his body lawfully begotten, and the said Elisha, or any heirs by him the said Elisha lawfully begotten, then alive, that in such case all the devises and bequests of real estate herein before made to the said Joseph should be and remain to him the said Elisha or such his said heirs. And in case the said Elisha should decease, leaving no heirs of his body begotten, living the said Joseph or any heirs of his body lawfully begotten, in such case, all the lands herein before devised to the said Elisha shall be and remain to the said Joseph or such his said heirs. But in case both the said Joseph and Elisha should decease, leaving no heirs of either of their bodies begotten, then all the lands herein before given to the said Joseph and Elisha, or either of them, shall be and remain to the children of my brethren and sister who shall then survive.”

The verdict further finds, that on the death of the testator Ebenezer, his widow and his nephews Elisha and * Joseph respectively entered into and became seised, as the law requires, of the several estates devised to them ; — that afterwards, on the 24th of September, 1755, the said Elisha died seised, without leaving any heirs of his body, the said Bethiah and Joseph being then alive ; — • that on his death, the said Joseph entered into the estate that had peen so devised to the said Elisha, and became seised thereof, as the law requires ; —• that afterwards, on the 2d of March, 1781, Bethiah, the widow, died, and the said Joseph thereupon entered into and was seised of the estate devised to her for life, as the law requires ; — that afterwards, on the 10th of March, 1788, the said Joseph died without any heirs of his body, leaving nine cousins, the children of the brethren and sister of the testator, of whom Moses Hawley, the father of the plaintiffs in error, was one, who, on the said Joseph’s death, were his heirs at law, and also the heirs at law of the said Ebenezer, the testator.

The verdict further finds, that the said Joseph, at a Court of Common Pleas holden for this county in August, 1783, being then seised of the tenements aforesaid, and claiming to hold them as an estate tail, suffered a common recovery thereof, in due form of law, to his own use in fee simple, which recovery was duly executed ; — that afterwards, in September of the same year, the said Joseph, then seised of the tenements, as the law requires, made his will, executed in due form of law, which since his death has been duly proved, and therein, after reciting his former estate tail, and the common recovery suffered and executed, devised the tenements aforesaid to the inhabitants of Northampton, who are the defendants in error, in fee simple, and afterwards died so seised as aforesaid ; — that on the death of the said Joseph, the defendants in error entered into the tenements aforesaid, and were seised as the law requires, on whom Moses Hawley, the original demandant, entered, and thereupon the defendants reentered on him, and he thereupon sued his writ of entry.

The verdict further finds, that if the said Moses had right to recover any part of the tenements, as a devisee * under the will of the said Ebenezer, then the defendants disseised him of one undivided ninth part; but if the said Moses had right to recover any part, as an heir at law of the said Ebenezer, then the defendants disseised him of one undivided eighth part; otherwise that the defendants did not disseise him.

The plaintiffs’ claim is under an executory devise, to take effect on the dying of Elisha and Joseph, without issue living at their decease, they having estates in fee simple limited on this contingency, which in fact has happened. Or they claim in right of their father, Moses, who was a co-heir of Ebenezer, the original testator.

The defendants claim under the will of Joseph, on the ground that the plaintiffs’ right was a remainder expectant on the determination of an estate tail in Joseph, which he barred by the common recovery. The decision of these respective claims must depend upon the construction of Ebenezer Hawley’s will.

In construing a will, the testator’s manifest intention, to be collected from the whole will, and not from any detached passages, must prevail, so far as such intention is consistent with the rules of law; and when the particular intent cannot be executed, the general intent must direct the construction. As it is the interest of the commonwealth that lands should be transferable,, and not remain in any man or family unalienable, so it is one of the rules of law, which limit the power of devising, that perpetuities be not created. Therefore, in a devise in fee simple, on condition that the devisee do not aliene, the condition is void. Also in a devise of lands in tail, on condition that the devisee do not bar the entail, the condition is void. And in a devise to one and his heirs, remainder to another and his heirs, which is termed the limiting of a fee simple after a fee simple, the remainder is void, because it would defeat the right of alienation in the first devisee.

But the law will allow a devise of lands in fee simple to one, with an executory devise over to another on a contingency, * which must happen within the compass of a life or lives in being, and twenty-one years and a few months after. The twenty-one years are introduced to provide for the minority of a child born, and a few months are allowed to let in a posthumous child. But if the devise over is limited after the devise of a part, and not of the whole of the fee simple, the second devisee shall take by remainder, either vested or contingent, and not by executory devise.

As remainders are estates at common law, while executory devises can only be created by will, and are admitted from necessity, to execute the legal intent of the testator, it is an essential principle of law, in the construction of wills, to exclude executory devises, when the estate can pass as a remainder.

It is another important rule, in the construction of wills, to give to specific words of the testator that technical effect which has been derived from usage, and sanctioned by a series of decisions. Thus, in a devise to one and his heirs, we cannot consider the heirs as deriving any interest from the devise, although the testator might have contemplated such interest; but we are bound to consider the word heirs merely as limiting a fee simple in the devisee. In a devise to a man, and to the heirs of his body, these last words are a limitation of an estate tail; and if it descend from the devisee in tail, all the heirs of his body cannot take together, but only in succession — the eldest son and his issue, then the second son and his issue, and so on. But if lands are devised to one without any limitation, he has only an (- state for life ; although, undoubtedly, the testator, when he devises a farm or a house to one, supposes that he has given a fee simple.

And there are cases where the same words shall have different constructions, according to the nature of the property to which they are applied, for the purpose of supporting the manifest general intent of the testator, when the particular intent is against law.

When lands and a chattel interest are devised to one, and if he die without leaving issue, * then a devise over, the devisee has an estate tail in the land, the words leaving no issue being, as to the land, understood as an indefinite failure of issue ; but as to the chattel interest, they are construed as leaving no issue at the death of the devisee. Now, the testator had the same particular intention in devising the land and the chattel interest • but to support his general intention, the same words have a different technical construction. In the devise of the land, the words dying without issue being understood as an indefinite failure of issue, gave the devisee an estate tail, provided for his issue, and the second devisee could take a remainder, so that it became unnecessary to introduce an executory devise ; but as to the chattel interest, if an indefinite failure of issue was admitted, the first devisee would have the absolute property of the chattel, and the testator’s general intention in favor of the second devisee would be defeated. And with respect to the land, if dying without leaving issue is to be intended as without having issue at his death, the first devisee would have an absolute estate in fee simple on having issue ; yet he might aliene it from his issue, and the second devisee would have no ben efit from the devise.

This technical effect to be given to specific words is required only in similar cases ; for in a case where other words of the testator, or some particular circumstances, serve to give a different explanation to such specific words, a different construction ought to be admitted, so far as may be consistent with the rules of law.

The importance of adhering to a course of decisions, in the construction of wills, is manifest; for their authority has established a rule of property on which many estates depend, and to overturn them would introduce perplexing uncertainty, and might shake many titles resting on the faith of them. To this reason another may be added — that the rules of property should be so certain that, generally, men may know their titles without having recourse to expensive lawsuits. And when gentlemen learned in the, * law are consulted, they should have some guides to direct them in their advice.

To decide without subjection to fixed principles may be called discretion, but, in fact, it is power. The common law consists of maxims and principles resulting from the practical wisdom of ages, and we know of no other discretion it gives to a judge, in deciding a novel question of property, than to apply those maxims and principles, by a sound analogy, to the new case. It is for the legislature to introduce new rules of decision.

With these general rules before us, we look into the will; and, as Joseph survived his brother Elisha, we will notice particularly the devise to Elisha, comparing it with the other parts of the will.

The devise to Elisha is to him, his heirs and assigns. This is an express devise of a fee simple to him ; and, as the devise to Joseph is in the same terms, the plaintiffs can have no claim under the will of Ebenezer, if these devises were absolute. But he makes them upon the conditions, limitations, and contingencies after mentioned. These expressions it would be unreasonably rigid to construe technically ; for a condition may, when necessary, operate as a limitation, a limitation may be on condition, and both may be contingent. This condition, limitation, or contingency is thus expressed : — In cáse Elisha should die leaving no heirs of his body, living the said Joseph, or any heirs of his body lawfully begotten, all the lands devised to Elisha shall be and remain to Joseph or such his said heirs. A similar provision as to the lands devised to Joseph, in favor of Elisha or the heirs of his body. —But if Joseph and Elisha should die leaving no heirs of either of their bodies, then all the estate shall remain to his cousins who shall then survive.

The effect of these provisions, as the plaintiffs contend, is, that estates in fee simple were devised to the two nephews Elisha and Joseph, and, at the decease of both, without leaving any issue at their deaths, the estates passed by executory devises to the cousins then living.

* But the defendants have argued, that by these devises the two nephews were tenants in tail, with cross remainders in tail, and a contingent remainder to the cousins then living.

No decision of a similar devise has been found, arid we must give such a construction as will best effect the general intention of the testator without violating any established rules. We consider the words dying without leaving heirs of his body as equivalent to dying without leaving issue. Now, it seems to be settled that a devise to one and his heirs, and if he die without issue, or without leaving issue, then to another, creates an estate tail in the first devisee, with a remainder over, when the limitation over can take effect as a remainder, unless there are other words to control this construction.

This rule is founded on the reasonable consideration that the testator included the issue of the first devisee as objects of his bounty ; and this bounty cannot be well effected but by vesting an estate tail in the first devisee ; in which case, the issue on his death will take in succession, and when the issue shall fail, the remainder will take effect in possession. But if by such devise the first devisee shall take a fee simple conditional, although on his death not then having issue, the second devisee might take by executory devise ; yet if the first devisee left issue, not only the claim of the second devisee would be defeated, but the issue could derive no benefit from the testator’s bounty, as their ancestor might alienate the estate at his pleasure.

We have observed that this construction is sometimes controlled by other parts of the will. On this head two cases have been decided. The case of Porter vs. Bradley, cited at the bar, was an express devise in fee simple to one, and if he died without leaving issue behind him, then to another; and it was holden that the words behind him ” confined the dying without issue to the death of the first devisee, and consequently that the first devise was a contingent * fee simple, and the devise over executory. — The other is the case of Sheers & Al. vs. Jeffery, also cited at the bar, where, after an express devise of a fee simple to one, and on his dying without issue, to another for life, it was holden that the testator intended the dying of the first devisee without issue at his death ; because it could not be supposed that the testator would give a life estate to a person in esse, after the indefinite failure of the issue of the first devisee. This case is the stronger, because the life estate was not given by express words, but resulted from construction, as there was no limitation of the estate given to the sec-, and devisee. Whether the presumption was necessary may well be questioned, as the age or infirmity of the first devisee might not give the testator any expectation that he would ever have issue.

Agreeably to this case, if the devise before us was to the nephews in fee simple, and if they died without leaving issue, then to the cousins for life, the first devise would have been a contingent fee, and the second executory. But if the devise to the cousins was of a life estate, it would not avail the claim of the plaintiffs under the will in this action, because their ancestor counted upon a seisin in fee simple, which this construction would not support.

But admitting that a fee simple was devised to the cousins, yet we are satisfied that, on a principle analogous to this last case, the original devise to the nephews of an express fee simple would have been reduced to a conditional fee, if the devise over had been if they died without leaving issue, and no provision had been made for the issue of the nephews. For the devise over is to such of hit cousins as should then be living. And the presumption that the testator did not intend a ife estate to a person in esse, after the in definite failure of the issue of the first devisee, is not stronger than a presumption, that he did not * intend a contingent estate to such of his cousins as should be living after the indefinite failure of the issue of both his nephews.

And if the testator had not considered the issue of his nephews as an object of his bounty, but leaving them to the discretion of their fathers, had confined it to his nephews and to his cousins, we apprehend the whole intention of the testator might well and legally be executed by a contingent fee simple to the nephews, and a devise over to the cousins living at the death of both the nephews, without having at their decease issues of their bodies. But if the issue of the nephews are provided for, then a different construction must prevail.

But were not the issue of his nephews intended by the testator to have some benefit from his devise to their parents ? Now, he has provided that on Elisha’s death without leaving issue, living Joseph or his issue, Joseph or his issue shall take the lands devised to Elisha; and a similar provision for Elisha’s issue in the lands devised to Joseph on his death without leaving issue, living Elisha or his issue. The testator has therefore expressly provided for the issue of his nephews in the lands respectively devised to their uncles. But as he clearly intended that the issue of each nephew should have the lands devised to his uncle on his dying without leaving issue, it must be inferred that he intended such issue should have the lands devised to his father leaving issue at his death; or we must absurdly suppose that the testator has protected the issue of each nephew against the alienation . of their uncle, and at the same time left them to be disinherited by their father.

The conclusion from this reasoning is, that the testator intended to prefer the issue of the nephews to his cousins, and that the estate given to each nephew respectively should go to his issue, if he left any. This being his clear general intention, the will must receive a construction which will execute it. But the rights of the issue cannot be secured, * without vesting an estate tail in their fathers. For we know of no rule of construction, by which a devise to one in fee, on the contingency of his leaving heirs óf his body, can be holden to be a contingent fee to the first devisee, and an executory devise to his issue. The devise of a contingent fee simple in the first devisee, and then over to the heirs of his body, being by the same instrument, must, by analogy to the ancient rule in Shelly’s case, be considered as vesting an estate tail in the first devisee; and the issue cannot take as purchasers.

Upon the plaintiffs’ construction, the will is to be considered as devising first an estate in fee simple in the first devisee, then, on his death, to the heirs of his body, if he have any, ■—if not, then over to the cousins, which construction, it is said, is authorized by the case of Fonnereau vs. Fonnereau.

But this construction is not supported by that case. There the eldest son having a life estate, and his father, the testator, being seised only of a reversion, devised the estate to the heirs male of the first son, remainder to the other sons in tail in succession. — And it was holden, that as the first son took nothing by the will, his heirs male would take by executory devise, for nemo est hare< viventis, and consequently the devise to the second son was execu tory ; that on the death of the first son leaving heirs male, they would take the estate in succession, and the devise over to the second son would then have been a remainder. And as the first son left no issue male, the second should take by executory devise. — This case may be simplified by supposing the devise to be of a reversion to be to the heirs male of J. S., then living, remainder in tail to A. Now, as J. S. was living, as well the devise to his heirs male as that to A. are both executory ; and if the heir male of J. S. ever take the estate in possession, then the interest of A. is a remainder.

But in the case at bar, it must be considered as a devise to J. S. and to his heirs, with remainder to the heirs * of his body; in which case very clearly J. S. would take an estate tail, and the- heirs of his body, if he left any, would take by descent, and A. would take a remainder.

The only construction therefore, which will execute the manifest general intent of the testator, so as to include all the objects of his bounty, is by a devise to his nephews in tail, with cross-remainders in tail, and a contingent remainder to his cousins living when these estates tail should be spent. Upon this construction the nephews first take, then their issue in succession, then the survivor and his issue, and lastly the cousins.

But it is incident to an estate tail, to be barred by suffering and executing a common recovery, by which the rights of the issue, and of all in remainder or reversion, are extinguished. This is also the effect of the common recovery with single voucher, suffered by tenant in tail actually seised of the estate entailed.

We are therefore satisfied that Joseph Hawley, when he suffered the recovery, was seised of an estate tail, which was barred by the execution of the recovery, and a use in fee simple raised to himself; and that the estate lawfully passed by his will to the defendants to hold in fee simple.

Neither Moses Hawley, the original demandant, nor the plaintiffs in error, his heirs, have now any claim to the tenements demanded, under the will of Ebenezer Hawley. And there does not seem to lave been any color of title in Moses Hawley, as an heir at law of Ebenezer, the testator, who certainly by his will devised all his interest in the lands, leaving no reversion in himself, unless the two nephews took estates in tail. And if they did, and the entails are legally barred, then that reversion is extinguished. And as we are of opinion, that the two nephews took cross-remainders in tail, Toseph, the survivor in possession, lawfully barred the reversion. The defendants in error must therefore have judgment, 
      
       1 Wlis. 48.-2 Strange, 1185, S. C.— 4 Bro. P. C. 504, S C
      
     
      
      
        1 P. Will. 667, Forth vs. Chapman. —• 3 Atk. 288, Sheffield vs. Lord Orrery. - 9 Vez. 606, Southhy vs. Stonehouse. — Cowp. 410, Geering vs. Hinton.
     
      
      
        Com. Rep. 373, Walter vs. Drew. — Hardw. 258, Wealthy vs. Bosville.— Doug 729, Winkles vs. Billington. —2 Saund. 380, Purefoy vs. Rogers.
      
     
      
       9 East, 382, Ellis vs. Ellis
      
     
      
      
        a) [According to the laws of descent, in force when the will was made, the words ‘ heirs of his body lawfully begotten” included all the legitimate children of the testator. For all the children, male and female, were equally heirs of the body. Rob. Geo. 119,120. — Dyer, 179, b. — Roe vs. Aistrop, 2 Bl. 1228. — Co. Lit. 10, a, n. 3, 4. — Ed.]
     