
    Sarah Henry, and Elizabeth Talbird, an Infant, by her next friend, Isaac B. Ulmer, v. Hugh Archer, Sheriff, and Others.
    
    Bequest of personalty to testator’s daughter, to her, and the lawful issue of her body, forever; but if any of testator’s sons or daughters should die without leaving lawful issue of their bodies alive, then their part of the estate to be equally divided amongst testator’s then surviving children. Held, that the issue were intitled as purchasers.
    Where there is an express gift to issue, generally, a limitation over, in the event of the first taker’s dying without leaving issue living at his death, will confine the gift to such issue as are living at that time, and intitle them to take as purchasers.
    An administrator cannot hold adversely to the distributees of the estate, so as to mature a title by the statute of limitations, although he claim by a title inconsistent with that of his intestate, vide Manígault v. Deas, ante, p. 284.
    The minority of one, or more, joint owners of personal property, will not protect the rights of such of them, as are of full age, from the operation of the statute of limitations; nor will the bar of the statute, against those who are of full age, affect the right of those of them, who are under disability, to recover to the extent of their respective interests, vide Henry v. Means, 2 Hill, 328.
    
      Heard by De Saussure, Chancellor, at Coosawhatchie, Jattuary, 1835. j
    This was a bill for an injunction, and to quiet the title of complainants (0 certain slaves, which they claimed under .the will of their grandfather, Thomas Bell, bearing date the 16th August, 1795, which contained, amongst other things, the following devises and bequests to his daughter, Elizabeth, the mother of the complainants! to wit. “ I give, and bequeath, unto my beloved daughter, Elizabeth Bell, one half of the tract of land, containing 250 acres, being half the tract formerly my mother’s, the westerly part adjoining land of Keatings, to her, and the lawful issue of her body, forever. I also give, her one fifth part of my negro slaves, including the increase, or issue, of those mentioned to my wife, with their issue, and increase, to her, and the lawful issue of her body, forever. I also give her' one sixth part of all my stock of cattle, hogs, &c., and one fifth part of my stock of horses, to her, and the lawful issue of her body, forever. The estate to be divided whenever she gets married, or at the age of twenty-one years.” And after other devises, and bequests, to the other children of the testator, the will provided as follows. “ And it is my will, and desire, that if any of my sons, or daughters, should die without leaving lawful issue of their bodies alive, then their part of the estate to be equally divided amongst my then surviving children.”
    The circumstances, under which this suit was brought, and the questions made by the pleadings, and evidence, will be sufficiently understood from the decree of his Honor, the Chancellor.
    De Saussure, Ch. It appears, in substance, that Thomas Bell, who died in 1795, bequeathed one fifth of his slaves to his daughter, Elizabeth Bell, with limitations over to her children. She intermarried with John Talbird, in 1801, when her portion of the estate was allotted to her, by proceedings in partition, and put in the possession of her husband. She died in the year 1819, leaving her said husband surviving her, and leaving also three children, the complainants, Mrs. Sarah Henry, and her sister, Elizabeth Talbird, who is a minor, and unmarried, and John Talbird, who died in the year 1824, a widower, and without issue, and on whose estate his father has administered. John Talbird, the elder, has been in possession of the slaves bequeathed to Elizabeth Bell, since his marriage with her, under the impression that they were his, by virtue of the marital rights; and under that impression, he has sold a number of them to sundry purchasers, for valuable consideration. The question of right has been tried in a suit at law, intitled Sarah Henry, and Others v. The Executors of Robert Means: and the Court of Appeals, by its judgment therein, in March, 1834, decided, that Elizabeth, the daughter, and legatee, of Thomas Bell, took only an estate for her life, in the slaves bequeathed to her, and that her children living at her death were intitied, under the limitations of the- will, to the slaves in question; but that Sarah Henry, and John Talbird, Sen., as administrator of his son, John Talbird, Jun., were barred by the statute of limitations. 2 Hill, 328. This decree would seeia to have settled the rights of the parties; but the bill filed in this Court, on the 1st April, 1834, is intended to make another case, and to obtain the judgment of the Court on that case. As far as the judgment of the Court of Appeals has gone, it is final, and conclusive, on the rights of the parties; and it would be presumption in me to undertake to change, or weaken, the effect of the decree of that high, and enlightened Court, and any desire to do so I utterly disclaim. It is a human institution, and filled by human beings, and therefore liable to err; but I am neither authorized, nor qualified, to correct such alleged errors, if any exist (as doubtless there may,) in any causes decided by that tribunal, and of which, I believe there are as few as will be found in the judgments of any human tribunal. The Complainants, however, have a right to a fair hearing, and to a full consideration of the case alleged to be made; and to have justice therein, if they are intitled by law to relief.
    This is a struggle between the creditors of John Talbird, the husband of Elizabeth Bell, and her children, who were intitled to the slaves, under the will of their grandfather, Thomas Bell, as since decided by the Court of Appeals. But the same decree decided, in the suit at law between the children of Elizabeth Bell and the Executors of Robert Means, a purchaser for valuable consideration from John Talbird, the father, that Sarah Henry, and the Administrator of John Talbird, Jun., were barred by the statute of limitations; for that John Talbird, the father, had been so long in possession of the slaves in question, after the death of the wife, when the title of 'the children accrued, and when two of them came of age, as to be protected by the statute of limitations. It is now, however, contended for the children, the complainants, that circumstances exist in the transaction, which would get rid of the effect of that decision in this case.
    These circumstances are, that John Talbird, the father of the complainants, having become sensible that he was mistaken, in supposing that he was intitled, by virtue of his marital rights, to the slaves bequeathed to his wife, and had therefore done wrong in selling any of them, as he had done, to purchasers for valuable consideration, in order to correct that error, as far as lay in his power, executed a deed on the 24th October, 1833, by which he covenanted with the complainants, not to interpose the plea of the statute of limitations, to any ac^ons)or su:*ts) which they might institute against him for the* recovery of the slaves, remaining in his possession, and some which he had sold; and that afterwards, the counsel of the said complain-* antS; employed by them for the purpose, agreed on their behalf, to receive from the said John Talbird, their father, eighteen slaves, which were still in his possession, in extinguishment of their claims, 'on the said slaves then in his possession, and on those which he had sold to Fripp, and to Martinangel, and in extinguishment also of their claims for the hire of the slaves. That to carry this agreement into effect, their counsel took from the said John Talbird, a confession of judgment in trover, in conformity to the act of 1827, as would appear by the judgment, and amendment thereto, of record, and as would also appear, by the affidavit of their said counsel; and that on the 28th March last, (1834,) the said John Talbird executed a deed of assignment, transferring, the said slaves to the complainants. Under all which proceedings, the complainants claim a right to the said slaves; but state that Hugh Archer, the sheriff of Beaufort District, has, by his deputy, levied on the said slaves, to satisfy the judgment creditors of the said John Talbird, the father. They therefore pray an injunction; and the bill prays also, for further relief, and for a subpoena. The commissioner granted the injunction on the 7th of April, 1834.
    is!? Act|i°f
    The principal defendant, Thomas Talbird, a judgment creditor, (and judgment creditors are the real litigants in the suit,) states, that after their judgments were obtained, the sheriff levied, on behalf of the judgment creditors, on the slaves in question, which John Talbird, the father of complainants, had held, and claimed, by virtue of his marital rights, and had sold some of them, and got credit on his possession of the rest: that when the sheriff was proceeding to sell said slaves, Mr. Isaac B. Ulmer, the guardian of the minor, Elizabeth Talbird, and agent of Sarah Henry, interposed a claim on their behalf, whereupon an agreement was entered into by him, with this defendant, and with the attorney of the other creditors, that if the sale were not proceeded in, but the property allowed to remain in the hands of the complainants, the slaves should be kept safely, to abide the issue of the suit then pending between the complainants, and the Executors of Robert Means, deceased: and that the judgment creditors of John Talbird, in pursuance of this- agreement, forebore to press their executions until the decision of the Court of Appeals should be made. ■ The defendant states, that as that decision had established, that Sarah Henry, and the administrator of John Talbird, Jun., were barred by the statute of limitations, the creditors hoped to have the benefit thereof, and that the slaves would be delivered up to be sold under the executions; but that instead of this, the complainants have resorted to various expedients to defeat their just claims, by a confession of judgment, and other acts, intendedto defraud them. The answer alleges, that the judgment is not in conformity with the act of the 19th December, 1827; and that if it were, it could not vary the rights of these parties, nor alter the decision of the Court of Appeals, to the prejudice of Iona fide judgment creditors. The defendant also insists, that the complainants have adequate remedy at law, if they have any rights.
    The affidavit of Mr. Daws.on, the counsel for the complainants, states,’ that it was their intention, and that of their father, that the confession of judgment should be conformable to the Act of December, 1827; and that it wafe erroneously entered up from haste, without complying with all the particulars prescribed, but was afterwards corrected.
    Mr. De Treville, who had been the attorney of the creditors of John Talbird, testified, that at the sale of the slaves under the executions of the creditors of John Talbird, in 1833, two slaves were sold; and then a proposal was made, that the sales should be suspended, and an agreement was entered into, that the title to the rest of the slaves should depend on the decision of the Court as to those two, as they all stood on the same footing, under the will of Mr. Bell. ■ Mr. Ulmer was the agent of the children. The sale was suspended in pursuance of this agreement, but not reduced to writing.
    The complainants come for relief, and ask the aid of this Court, in a case already decided by the Court of Appeals, which has declared what are the rights of the parties: and Mr. De Treville’s evidence is clear and positive, that an agreement was made by Mr. Ulmer, the agent of Mrs. Sarah Henry, and guardian of Miss Talbird, that the decision of the Court of Appeals, then pending as to two of the slaves, should bind all the rest; in consideration of which, the sale of the slaves was suspended, in order to wait the judgment of the Court. That judgment has been rendered; and in conformity with the agreement, the slaves ought to be delivered up. It is true, that the agreement was not redueed to writing: but the parties acted upon it, and the complainants had the benefit of it, and now deny the benefit to others. This Court does not relieve parties under such circumstances.
    It is contended fox the complainants, that although the Court of Appeals has decided, that Sarah Henry, and the Administrator of John Talbird, are barred by the statute of limitations, their father, John Talbird, has a right to renounce that advantage. It might be said to come too late after the judgment and decree of the Court of Appeals. But independently of that, the rights of the creditors had attached: t^r judgments and executions had a lien on all the property of John. Talbird; and the decree had fixed his rights in the slaves, before he declared on 24th October, 1883, that he did .not mean to avail himself 0p statute. This effect is not weakened by the confession of judgment by John Talbird, to Sarah Henry, and the minor; for admitting that judgment to have been correctly entered up according to the Act of December,- 1827, although it required an amendment of the proceedings, to render them conformable to that enactment, it was subsequent to the judgments, and executions of the creditors.
    Upon the whole, I do not perceive that this is a case in which the complainant, Sarah Henry, can have the aid of this Court. Nor was there any insuperable objection to the complainants having remedy at law, if they had rights. So far, therefore, as regards the rights, and claims of Sarah Hepry, the bill must, and is hereby ordered to be dismissed, and the injunction dissolved. The right to the share of the slaves to which John Talbird, the deceased son, was intitled, is also bound by the decree of the Court of'Appeals. But the injunction must be supported, and continued, as far as it protected the rights of Elizabeth Talbird, the minor, as established by the decree of the Court of Appeals. And it is so ordered.
    From this decree the complainants appealed, and now moved, that it might be reformed, and the injunction made perpetual as to all the property in dispute, on the following grounds:
    1. That the agreement of the complainants to abide the issue of the suit against the executors of Means, was not intended, nor can it be understood, to amount to more than an agreement to abide the decision of the Court, on the only analogous question in that case; to wit, whether the complainants took as purchasers, under the will of their grandfather, Thomas Bell: and the decision of that question having been in their favor, the decree in this case ought to have conformed thereto.
    2. That this result cannot be affected by the circumstance, that in the ease against the executors of Means, the Court decided, that the right of one of the present complainants was barred by the statute of limitations; inasmuch, as the circumstances of the two cases were not analogous in that respect: Means, having, as purchaser, for a valuable consideration, held an adverse possession for more than four years; whilst Talbird could not hold adversely to the present complainants, or plead the statute of limitations against them, both because as tenant for the life of his wife, he was trustee for the complainants, who were intitled in remainder, and had never determined his trust, and as administrator of his son, John Talbird, was tenant in common with them, besides being liable to them as such administrator for their distributive shares, under the act of 1791, of their said brother’s proportion of said slaves. Nor has the answer of the defendant in this case pleaded any title, by the statute of limitations, in John Talbird.
    3. That the possession by the father, John Talbird, of the slaves levied upon, was as trustee for, and tenant in common with, the complainants, and as administrator of his son, of whom the complainants are distributees: that he had, therefore, no interest in the said slaves, which-was liable to his creditors in equity, although at law, they may have been liable to levyj and inasmuch as he had a legal right of possession, without the equitable interest, the levying of an execution, of itself, furnished a sufficient ground for the interposition of equity by injunction, there being no adequate relief at law.
    4- That the proceedings in trover do not affect the question, inasmuch as the judgment, under the circumstances stated in the decree and pleadings, did not operate to vest any new title in John Talbird, or to divest the title of complainants, nor to convert it into a merely legal title, but was only a collateral security for the performance of the trust. Nor did even the assignment by John Talbird, subsequently to the levy of defendants’ executions, dispense with the necessity of applying to equity for relief.
    The defendants also appealed from so much of the decree as continued the injunction, in relation to one third part of the slaves, in favor-of the minor, Elizabeth Talbird, on the ground, that the complainants were not intitled to take as purchasers under the will of Thomas'Bell.
    The appeal in this case, and one in the case of Isaac Ferril v. Elizabeth Talbird, and Sarah Henry, an action of trover for slaves, which were claimed by the defendants in that action under the same clause in the will of Thomas Bell, under which they claimed as complainants in the equity suit, were argued together, by Mazyck, and Bailey, for the children, and by Frost, and Petigru, for the creditors, of John Talbird, at Charleston, in April, 1836, before the Court of Appeals, consisting of the Chancellors, and Law Judges, organized under the Act of December, 1835. The decision was postponed, and in the mean time separate Courts of Appeals, in Law, and in Equity, were established by the Act of December, 1836. On the assembling of the two Courts under that Act, at Charleston, in February, 1837, opinions were delivered in these cases as follows.
    Harper, Ch. I propose only, to consider the question, arising under the will in these cases, upon the limitation to the legatee and her issue. Until the case of Lyon v. Mitchell, 1 Mad. Rep. 467, was brought to my view, I had thought it so perfectly settled, as to have become familiar, that if there be a devise of personalty to one and *ssue> with a limitation oyer in the event of his not leaving issue, the limitation over is good, and the issue take as purchasers. The cases of Read v. Snell, 2 Atk. 643, and Lampley v. Blower, 3 Atk. 395^ so 0ften referred to, seemed to me expressly in point, and I was not aware that any doubt had been suggested, either as to their construction, or their authority. And I am still satisfied, upon the fullest examination I have been able to make, that except the case of Lyon v. Mitchell, there is not a single decision, dictum, or principle, in the slightest degree at variance with them, or which would tend to give them a different interpretation. ,
    There is no question at all, respecting the principle so strenuously contended for in argument, that the words, which give an estate tail in real property, will give the absolute estate in personalty, if it be rightly understood. Whether the devise be to A. and his issue, or to A. for life, and at his death to his issue, or whatever be the terms of the direct devise which will give an estate tail in real property, these words standing alone, will give an absolute estate in personalty. But if it be meant, that if, upon the construction of the whole instrument taken together, the effect of it would be to give an estate tail in real property, the devisee will take an absolute estate in personal property, it is unsupported by the slightest shadow of authority; and I think I may venture to say, there is'not a passage in the books, alluding to the doctrine, in which the idea is not contradicted.
    The doctrine is laid down by Mr. Fearne, Con. Rem. and Ex. Dev. 491, 2. After noticing the effect of the rule in Shelly’s case, he says, “ but in the limitation of personal estates, a similar rule does not always hold. If a term be devised to one for life, and afterwards to" the heirs of his body, these words are generally words of limitation, and the whole vests in the first taker.” After quoting cases to support this, he adds, “ however, if there appears any other circumstance, or clause, in the will, to shew the intention was, that, these words should be words of purchase, and not of limitation, then it seems the ancestor will take for life only, and his heir will take by purchase.” So the rule is laid down by Fonblanque, 2 vol. p. 78, n. (t.) ' Or take it as given by Lord Rosslyn, in Chandless v. Price, 3 Ves. 101. “I have understood the rule that has for along time prevailed, to be to try it by this: would the words give an estate tail in real estate? If so, they give the absolute property in personalty, unless you can find in the will, something to shew he meant to Lie it up.” The rule is not laid down in the unqualified manner which seems to be contended for, even by Sir Thomas Plummer, the vice chancellor, in Lyon v. Mitchell. After stating the rule as to giving the absolute property, he adds, “unless the testator shews a clear intention that they shall not be so applied.” But it would be endless to refer to all the authorities; the rule is never, in any instance, laid down without the qualification. Suppose a gift to one expressly for life, and at his death to his issue, but if he should die without leaving issue, over. This no doubt would give an estate tail in such property; for the word leaving, imports an indefinite failure of issue when applied to real property, (perhaps after the gift of an estate tail in real property.) But would any one contend that these words would give the absolute estate in personalty? If, so, it would be to defeat the intention ; an intention which the law does not forbid to have effect, when it is expressed as plainly as words can express it.
    The question then is, whether the circumstance of limiting the 'property over, on the event of not leaving issue, is sufficient to shew the testator’s intention to use the word issue, not as a word of limitation, but of purchase. When the words'“issue,” or “heirs of the body,” are used in a devise, they must have one of two meanings, and only one of two. They mean either the indefinite lineal succession of heirs of the body, or the particular individuals who at a given time answer the description of issue, i. e., children, or other descendants. There is nothing doubtful or questionable in this. The former is the natural, and obvious technical import, when used in a will; and so they will be understood, unless there is something to give them a different meaning. When, therefore, there is a devise to one and his issue, the law gives him the absolute estate; not because the testator intended to give an absolute estate, but because you cannot reject the word as unmeaning, which has an obvious, settled technical meaning. He intended to give an estate restricted indefinitely to the lineal succession, as in the case of an estate tail in real property. And the devisee takes the absolute property, not because the testator so intended, but because the law will not permit that which he did intend.
    But though the former be the more obvious sense of the words> they will admit of the latter. There is a whole class of cases, in which they have been so understood, as in Hodgeson v. Bussey, 2 Atk. 89, and Doe v. Collis, 4 T. R. 294; and it is said they will be construed as words of limitation, or of purchase, as may best effect the intention. Does the circumstance of limiting the property over on the event of not leaving issue, express that intention? It is admitted on all hands, that the limitation over is good. And why is this ? Because the word learning has reference to the death of the first taker, and shews that the testator did not use the word issue to signify the indefinite succession, but the individuals then living to answer the description. Yet the argument is, that we must take him to have used the word in the former sense.
    
      This was ^e 011ty 1ues,:ion in the case of Lyon v. Mitchell; at> though the vice chancellor seems to me to touch it very slightly, and to have expended the strength of his argument upon matters, which notj an¿ coui¿ po^ arise in the cause. He refers, as authority, to the various cases collected by Fearne, 463; to Seal v. Seal, Prec. Ch.' 421, in which there was no doubt of the intention to give an estate tail with a remainder after that estate; and to Dodd v. Dickenson, 8 Vin. 451, pi. 25, Butterfield v. Butterfield, 1 Ves. 133, 154, Daw v. Pitt, 1 Mad. Rep. 448, Chandless v. Price, 3 Ves. 101, and Brouncker v. Bagot, 1 Mer. 271: in all of which, after the limitation to issue, the limitation over was for want of issue, or on failure of issue, terms in themselves importing an indefinite failure of issue, and in which the limitation over was hold to be void. What was wanted, and what was not, and, I am persuaded, cannot be found, was a case in which, after an express limitation to issue, the limitation over was held to bo good, in which the issue were not held to take as purchasers.
    The position, which is chiefly labored by the vice chancellor, is one, which I suppose hardly any body would now think of disputing. It is, that there is no inconsistency in giving the first taker the entire, or absolute estate, and limiting it over on the event of his dying* without issue then living, in abridgment of the preceding estate, His argument is, that it is competent for a testator to say, “ if my sons have children, I mean that they shall have an absolute interest in all my personal property, but if it ultimately turns out that they have no* children at the time of their death, or if any of them should not, I give it over in the way I propose.” This he insists upon again and again; speaks of the fallacy of confounding distinct propositions; says that an executory devise operates to defeat the preceding estate; and supposes the case of a gift “ to my son absolutely, forever.” In all this there is no difficulty.
    But there seems to me to exist confusion, and ambiguity in the vice chancellor’s argument, arising from this; that he himself, has not distinguished between the cases, where the testator intends to give an absolute estate, and where the law gives that effect to his words, in spite of his intention. If I give to my son, his executors, administrators, and assigns, with a limitation over, in the event of his not leaving issue, there is no inconsistency in his taking an absolute estate, and the limitation over having effect. So if I give to my son indefinitely, which, as respecting personal property, imports an absolute estate. But when a testator gives to one, and his issue, it is certain, as I have said, that he does not intend to give an absolute estate. He intends a benefit to the issue in some way. He either intends that they shall take in. indefinite lineal succession, or that the persons answering that description at a particular time shall taka In every case of a gift to one, and his issue, the question is, in which of these senses, he intended to use the words, and this question was not considered by the vice chancellor, in Lyon v. Mitchell.
    It is admitted, that if a testator gives, to one, and his issue, and stops there, he must be understood in the former sense, and the word will be one of limitation. So if he gives to one for life, and at his death to his issue; although in this case it would seem that he intended to give to issue, as purchasers, yet the law counteracts his intention. But besides the idea of conformity to the rule in Shelly’s case, there is a reason of necessity for this. The testator apparently intends to part with the whole estate; yet if the devisee were not held to take the absolute property, the remainder would be undisposed of in the event of his not leaving issue. This reason, however, does not exist when there is a valid limitation over on that event.
    I have said, that the cases of .Read v. Snell, and Lampley v. Blower, seemed to me to be expressly in point; and upon the best examination which I have been able to give them, I find myself unable to regard them otherwise, or to perceive that they are in the slightest degree 'ambiguous. In both cases, there was a devise to A., and her issue, with a limitation over, in the event of her not leaving issue; and this seems to me to be the whole of either case. With respect to the latter of these, the vice chancellor, in Lyonu Mitchell, says, “ the case of Lampley v. Blower, is not an authority in favor of the plaintiff In that case, however, Lord Hardwicke Says, ‘if it stood barely upon the words, to A., and her issue, or to A., and the heirs of her body, the first taker would have taken the whole; but it is not meant in that sense.’ Now if this is law, it decides the present case; because those are the very words in the present. 'Here the personalty is given to the four sons, and the issue of their bodies.” And again, “Lampley v. Blower, itself, is not an authority in favor of the plaintiff because the terms of the will are very different, there being in that ease a manifest intent to use the word issue as a word of purchase; and it could not be interpreted in any other sense consistently with the object of the will: but Lord Hardwicke prevents a general inference being drawn, that in every case that will be the construction, by putting a case like the present, and stating that there the construction would be different. This case of Lampley v. Blower is an authority, therefore, directly in favor of the defendants, and not against them.” Now with proper deference, the quotation made by the vice chancellor, or the application of it, seems to me a mutilated one. In the case before Lord Hardwicke there certainly existed £U^^ona^ circumstance of a valid limitation over, and it seems ttí me that Lord Hardwicke decided upon it. The same circumstance existed in the case before the vice chancellor, and he rejected it as im-* material. Immediately after the quotation made by the vice chancellor, Lord Hardwicke adds, “ and if either of them happens to die, and leaves no issue, the share of her so dying shall go to the survivor. What is the meaning of this contingency?” To say that the case was a direct authority in favor of the defendants, scarcely requires comment.
    . Lord Hardwicke says, “ the word issue is capable of three senses. In one sense, as a word of description, to take in joint tenancy. In another, as a word of limitation. And in a third, as a description of the person in remainder.” He supposes it to be used in the last sense in the case before him. “ The words leave no issue, are relative to any child the legatee might have at the time of her death.” “ The word leave, explains the word issue, in the first part of the devise, to mean such as was left at the time of the death. There is nothing ■more common, than that the subsequent words descriptive of the contingency explain the former; as a devise to a man, and his heirs, and afterwards testator says, if he shall die without heirs of his body, controls it to an estate tail: so here the subsequent words, if she shall happen to die, &c., and leave no issue, confine it to leaving issue at her death, and not generally.”
    If this stood alone, it would be impossible for words to express more explicitly the principles of the decision. The only additional circumstance in the case, was, that the legatees lived in Barbadoes. I cannot suppose Lord Hardwicke to have decided on this circumstance; however, he may have used it as matter of argument, to strengthen his conclusion from the terms of the will.
    Lord Hardwicke says, “ th¿ will was made in England, and the legatees lived in Barbadoes; and the testatrix would not know at that distance, but that both might have issue. The legacies vested immediately, and therefore it was intended to secure them to the issue, if the parents died in the testatrix’s life time. Suppose Mrs. Lampley had died without leaving issue, would not this have been a good devise over to the survivor of the nieces? Therefore, I am of opinion, that this was a contingent limitation to the other niece, Ann Blower, if Mrs. Lampley died without issue, and the whole did not vest in the first taker; and according to the restriction in Forth v. Chapman, 1 P. Wms. 663, ought to be construed, leaving no issue at the time of the death”
    
    
      ■ Lord Hardwicke uses the whole argument derived from the circumstance that the legatees lived in Barbadoes, only to lead him to .this conclusion; that the words must be taken to mean, learning no issue at the time of the death. But this is now admitted .to be the uniform construction of the words leaving no issue, and it does not require the argument to give the construction. I understand the argument thus: if you give to the legatee an absolute estate, .then ,by her death in the life time of testatrix, the legacy will lapse if it :be several, or go to the survivor if it be a joint one, although she may. have issue, and notwithstanding the intention expressed in favor of issue. But make it a life estate, with remainder to the issue as purchasers, and then the death of the tenant for life will not defeat the remainder to the issue, or the contingent remainder substituted in place of it, in the event of the want of issue. This argument would apply in every case, whether the legatee lived in England, or Barbadoes. In every case, the intention might be, in like manner, defeated by the death of the first taker in the life time of the testator; although to be sure, it applied more strongly in the latter case.
    If, as was intimated, it be contended that it was a mere substitution; confined only to the event of the legatees dying in the, life time of the testatrix; and that if the legatee had survived, she would have taken an absolute estate, and not an estate for'life with remainder to the isr sue as purchasers, it is a method of construction totally unwarranted by the context. • It would amount to this: if she never takes anything under the will, she shall be restricted to a life éstate; ' if she ever does take any thing, it shall be an absolute estate.
    As to the case of Bead v. Snell, there is even less pretence of ambiguity.- It was suggested, that the case was one of an executory trust. It might be enough to say, that in considering the question, whether the issue took as purchasers, Lord Hardwicke did not determine on that ground. But in considering the goodness of the limitation over, he says, “ it has been objected, the .words for, life are not in this will. But though weight has been laid upon those words for life, when they have been in, yet I do not know that any weight has-been laid on the want of them, when the intention has otherwise -appeared ; but if weight has been laid upon the want óf them, when'there has been a trust executed, yet there can be none, when it is a-trust executory.” He plainly intimates, that although the circumstance-of its being an executory trust, puts the matter out of doubt, it -Was-not necessary to the decision. But suppose ■ it a trust executory^ that authorized the chancellor to give effect to the intention. If there be.no rule, as there certainly is not, to forbid our giving effect to the intention in the case of a legal estate, or trust- executed, why should-the case be of less authority on that account? Then it would be a summary, but somewhat bold, method of disposing of a certainly not unconsidered decision, of one who has been commonly regarded as the greatest of English chancellors, to say that it is not law.
    With respect to this case, the vice chancellor in Lyon v. Mitchell, simply says, “ the authority of that case is overruled by the decision in Garth v. Baldwin.” 2 Ves. 646. I confess that I am at a loss to perceive, how the case is overruled by the decision in Garth v. Baldwin. In that decision, no mention is made of the case of Road v. Snell, nor is there any reference to it. The limitation was to pay rents and profits to Edward Turner Garth, for life, and afterwards to pay the same to the' heirs of his body, and for want of such issue, to pay, &c. Lord Hardwicke'held, that the first taker, took an absolute estate, and that the limitation over was too remote and void; the words, “ for want of such issue,” importing an indefinite failure of issue. Real estate was given by the same words, in which the devisee was hold to take an estate tail. But Lord Hardwicke does manifestly take for granted, that if the limitation over were good, the first taker would have been restricted to a life estate, with remainder to issue as purchasers. He quotes the case of Beauclerk v. Dormer, 2 Atk. 307, in which the limitation over, if the devisee “ dies without issue,” was held to be too remote; which doctrine, he says, has been followed ever since, and the words held to import failure of issue at any time. There was nothing, therefore, to prevent the first taker’s having an absolute estate. I think it will not be difficult to determine, whether the case of Garth w. Baldwin does not rather support the decision in Read v. Snell, than overrule it. The existence of the two casos, certainly strengthens each. If there had been but one, then it might have been thought, that there was some error of the reporter, or something ambiguous in the grounds of the decision. But I do not perceive, what question there can be, with respect to both cases standing together.
    But let us see how these cases have been regarded by the elementary writers, who read them for no other purpose than that of understanding them. ■ Mr. Fearne may be supposed capable of understanding them, and weighing their authority. After laying down the rule, as .1 have quoted from him, that where there is any circumstance to shew such an intention, heirs of the body, or issue, shall take as purchasers, he gives, as instances, the cases in question: “ the like point-was decreed in the case of Read v. Snell, before cited; in which case the decision was grounded on the words, leming no heirs of her body, which were considered as relative to the time of. her death, and, therefore, restrained the general import of the first limitation to the life of the. first taker.” And again, .referring to the case of Lampley v. Blower; “ a limitation of a term to A. and her issue, it seems, vests the whole in A., if the devise rests there; though the addition of the subsequent words, and if A. die, and have no issue, Lord Hardwicke said, related to any child living at A’s. death, and, consequently, the word issue there, was to be considered a word of purchase.” This is laid down as familiar elementáry law, and not a doubt is intimated of the construction or authority of these cases.
    Mr. Sanders, the editor of Atkyns, in his note to Hodgeson v Bussey; refers to these, among other cases, and lays down the rule,’in terms which might be applied as the rule of this case. “ The general rule, with respect to terms of years, (and the same rule applies to other personal estates,) seems to be, that whenever an estate, in a term of years, is limited to a person,' which limitation, if applied to freehold property, would create an estate tail, and a remainder is therein given, after a general failure of issue, or heirs of the body, the whole vests in the first taker. But if there be any clause or restriction, whereby it plainly appears, that the words, heirs of the body, or issue, were intended as words of purchase, (as in the present case of Hodgeson v. Bussey,) or if the dying without, issue, is restrained to the death of the tenant for life, whereby the remainder over may take effect, as an executory devise, in either case, the words, heirs of the body, or issue, will operate as words of purchase.” 2 Atk. 88, note 1.
    The same thing may be found in Bridgman’s Digest, Tit. Limitations over, 1. This is not propounded as any thing doubtful, or questionable, but as the settled, familiar law. And so I apprehend, before the case of Lyon v. Mitchell, it was universally regarded. Certainly, I have not been able to find any thing in any of the elementary books, in the slightest degree contradictory of it. It may he worth remarking, that the reporter, in his marginal note to both the cases, giving the principle of the decision, states the issue to take in remainder, the words, learning no issue, restricting it to issue living at the time of the death. But that which is perhaps quite as conclusive, as the authorities referred to, is the circumstance, that throughout the whole of the English cases, where there is a limitation to one, and his issue, or the heirs of his body, or any equivalent words, the questions,. whether the issue take as purchasers, or the limitation over be good, and whether the first taker takes an absolute estate, or the limitation over be void, are universally assumed to be identical.
    When the question is as to the goodness of the limitation over, the inquiry is, whether the first taker takes for life, or an absolute estate, and the contrary. As in Theebridge v. Kilburne, 2 Yes. 233,-where the limitation was to a daughter for life, and immediately from and after her death, for the heirs of her body, and on failure of such *ssue over> <luesti011 °f the heirs of the body taking as purchasers, ajad of the goodness of the limitation over, are, throughout, treated as the same. So in Chandless v. Price, 3 Yes. 101, before referred to, ^g question was of the goodness of the limitation over; and the chancellor, throughout, inquires, whether there is any restriction in point of time, to tie up the first taker to less than an absolute estate. In Butterfield v. Butterfield, 1 Ves. 133, the gift was to the son for life, and to the lawful heirs of his body, and if he should die without heirs, over. Lord Hardwicke held the son to take the whole estate, because the limitation over was too remote. “ I should clearly have thought him intitled to the absolute interest, and the devise over, void, as a devise of a personalty after such a limitation, as would be a clear entail of lands, and too remote a contingency; because heirs of the body import ad infinitum, if nothing to restrain is superadded: and in these cases, where something is superadded, both Courts of Law and Equity have, with much difficulty, come into a construction to restrain to issue living at the time of the death.” It is plain, that if this had been superadded, the legatee would have been restricted to a life estate. So in Wilkinson v. South, 7 T. R. 551. In Gueryu Vernon, 1 N. & M. 71, it was said by a judge, whom it was the misfortune of his State to retain but for a short time on the bench, and whose opinions are always intitled to the highest consideration, “ I think the frequent reference to the rule, that where the words give, in real estate, an estate tail, the first taker shall have an absolute estate in personal property, has led to a confused understanding of the principle. It is not a primary rule, but only auxiliary to the general rule of remoteness. The real question is, always, whether the limitation over is too remote or not: whether the words, heirs, issue, heirs of the body, children, and the like, are words of limitation, or words of purchase; whether they express an indefinite succession of persons, included within those terms, or whether they point out certain particular persons, who may exist, and must take, within a period not excluded by the rules of law.”
    But the idea is so familiar, and has been so universally taken for granted, that I certainly should not have enforced it at so great length as I have done, if I had not learned, with no little surprise, that the decision of the Appeal Court, in the case of Henry v. Means, 2 Hill, 328, seemed new to some of the profession. I believe it may safely be said, that there is no adjudged case, except that of Lyon v. Mitchell, of such limitation to issue, &e., in which the questions, of the first taker’s being restricted to less,than an absolute estate, and the goodness of the. limitation over, were not regarded as identical. Certainly, there is no other case in which he was held to take an absolute estate, when the limitation over was good. It is impossible to read throügh the third and fourth chapters of Mr. Fearne, on'executory devises, without perceiving that this is assumed throughout. Bee particularly pp. 478 — 9, XII. (y.) Thus he resists the notion, that when the words are such as to give an estate tail by implication only, (that is, when personalty is given indefinitely, and limited over for want of issue,) these words “ are always to be understood restrictively, and to relate only to his dying, without issue living at his death, and, therefore, to give him the term only during his life.” Certainly, it is taken for granted, that such must be the effect, if such were the terms of the limitation over.
    So prevalent has been this idea, that where the devise has been to one, his heirs, executors, administrators, and assigns, as in Bigge v. Bensley, 1 Bro. C. C. 187, a vague impression seems to have obtained, that the effect of sustaining a limitation over, for want of issue, would be to cut down the first taker to a life estate. Mr. Kenyon says, in his argument, “prima facie, ‘ to a man and his heirs,’ sighifies the whole interest, unless there are words to shew the testator meant issue living at the time of his death.” So when the gift is indefinite, which, when of personalty, of itself, imports an absolute estate, some such impression seems to have been entertained by Mr. Fearne, in the passage referred to. This, I have.no doubt, was what embarrassed the vice chancellor, in Lyon v. Mitchell. He saw that there was no incompatibility in giving the whole estate, and limiting it over, by executory devise, on the event of not leaving issue; without perceiving that it is a very different question, when there is an express gift to issue, and an express intent to benefit issue, in what manner the testator intended them to take. But there was no decision to stand in his way, and the matter had been put upon the proper footing, by Lord Eldon, in the case of Barnfield v. Wetton, 2 Bos. and Pul. •324, in which there was a devise to one, her heirs, and assigns, with a devise over, in the event of her not leaving issue, at the time of her death. She was held to take the fee, with an executory devise over.
    This, too, I have no doubt, led to the decision in Carr v. Green, 2 M’C. 75. It was said that the word leaving, is a word of purchase, instead of serving, as it is more accurately expressed by Judge Ciieves, in the passage before referred to, to qualify the words, issue, <^c., as words of purchase.
    And it is obvious that it must have this effect. The limitation over, as I have said, is good,‘because the words, leaving issue, import individuals answering the description of issue, at the time of the death,- and it is impossible to give them-any other sense. With what shew reason coul(i y°u say, that in the direct devise, the testator intended to use the word in a different sense ? By the construction contended for, you must read the devise to Elizabeth Bell, and the lawfulissue of her body, in indefinite lineal succession; but if she die, not leaving any individuals, answering to the description of issue, at the time of her death, then over. But it is a solecism, in construction, to give a different meaning to the same word, in the same olause, in relation to the same matter, and more especially, in such immediate juxta-position. The testator gives to issue; he limits over for want of issue. In point of fact, and reason, what ground is there for such a conjecture? When there are other circumstances to shew that issue are to take as purchasers, as in Hodgeson v. Bussey, 2 Atk. 89, where the devise was to issue, their executors, administrators, and assigns, there a limitation over, in terms, which would, of itself, import an indefinite failure of issue, is good. And this is because the testator is supposed to use the word issue, in the same sense in which he had before used it, to denote particular persons. So where the limitation is to children, and the estate is limited over, on the event of dying without issue, generally; here the Word issue is taken to denote the sort of issue before described, i. e. children, as in Doe v. Lyde, 1 T. R. 593.
    The cases on this subject are numerous, but it is not thought necessary to refer to them. The rule is familiar and uniform. Suppose the limitation were to one, and his issue, and if he should die, leaving no such issue. Here the testator plainly expresses his intention to úse the word in both instances, in the same sense. Will any one say that they should, notwithstanding, be taken in a different sense ? Or that such a limitation over, would not be good ? Or that it would differ, in any respect, from a limitation over, after leaving no issue, generally ?. Such limitation over, explains the word issue, as first used, to designate particular persons, as is explained by Lord Hardwicke, in Lampley v. Blower. It explains, too, that they were to take in remainder, and not as joint tenants, with the parent.' This is the express import of the words, if we have given them their right meaning. It is to Elizabeth Bell, and to her children, or other descendants, who shall be living at the time of her death. This'is absolutely incompatible with the notion of a joint tenancy, and as perfectly unequivocal, as if it had been to' her for life, and at her death, to her issue, who 'shall be then living. Such limitation over, would be inappropriate and unmeaning, unless it were intended that the' persons then answering 'the description of. issue, should take, if such were in existence. If the testator supposed that he could ereate, and intended to create, an estate tail, then it is natural to infer, that he would have limited over, in remainder, after that es» tale tail; and not that if the issue should fail within a year after the death of the first taker, his bounty to the devisee over should be disappointed. That he has confined the limitation over to the death of the first taker, is evidehce that he had no such intention of giving to heirs in indefinite succession.
    I have not relied on the cases of Peacock v. Spooner,- 2 Vern. 43, and Dafforne v. Goodman, 2 Vem. 362; because these were cases of marriage settlement, and because their authority has been questioned. But if we assume them to have been wrongly decided, that does not affect the present question. In these cases there was no limitation over. Nor have I referred to the case of Knight v. Ellis, 2 Bro¡ C. C. 570, in which, under a devise to one for life, and at his death, to his issue male, and in default of such issue over, the issue male were held to take as purchasers. This case, also, has been questioned; but I apprehend, solely, on the ground, that the terms of the limitation over, of themselves, import an indefinite failure of issue. If it had been on the event of not leaving issue, I do not conceive that any question could-have been suggested.
    It is somewhat singular, that the decision in Henry v. Means, should have been thought a departure from the principle settled in Carr v. Porter, 1 M’C. Ch. 60. In that very case, the authority of the cases of Read v. Snell, and Lampley v. Blower, is recognized; and the same construction is put upon them, and they are sustained by the same sort of reasoning, which I have attempted to Use here. Judge Nott says, “the next case' is that of Read v. Snell, 2 Atk. 642. The testatrix left her whole estate to her daughter, and the heirs of her body; but if she should die, leaving no heirs of her body, then to go over. Lord Hardwicke held that the word léaiiing meant leaving issue at the time of her death. It might, therefore, be construed a direct gift to the issue, after the death of the first legatee. But, in that case, there is a direct gift over to the.heirs of her body. It is not left to implication. Lord Hardwicke does not say that the word £ leaving’ may be construed into a gift, but that when the testator has given to the heir, or issue, it may serve to qualify the gift, so that the issue may take by limitation, or purchase, according to the intention of the testator.” 1 M’C. Ch. 88. So of the case of Lampley v. Blower, lb. 89. Indeed, the mere decision, that issue cannot take, as purchasers, by implication, leaves us to infer, that they may so take by express limitation. As to the difficulty suggested, in argument, to which the Court would be exposed in determining, whether the issue, supposing the term to include all descendants, children, grandchildren, &c., would take per capita, or per stirpes, I do not anticipate anjf great difficulty, when the case arises. _ Certainly, the difficulty would no £reater> than if the limitation in remainder were express, to one’ for life, and at his death, to his issue, or descendants, who shall be then living.
    The wh0le argument, then, rests exclusively on the authority of Lyon v. Mitchell. I trust that it will be found that the Court has not departed from established rule, in the vain pursuit of a conjectural intention; but that it has refused to depart from a perfectly well settled rule, only for the purpose of defeating a very plain intention. Whatever deference we may pay to the able judges of England, it can hardly be expected that we should depart from our well considered decisions, to follow all the fluctuations of theirs. And certainly, we do not perceive such argument, or authority, in the case of Lyon v. Mitchell, as should induce us to this course.
    Richardson, J. It might be enough, to say, that the proper construction of Thomas Bell’s will, has been already decided, by the late Court of Appeals, in the case of Henry v. Means, 2 Hill, 328. But as that decision appears not to have given entire satisfaction to the parties concerned, we have again investigated the doctrine involved. Lawyers and judges differ, not unfrequently, in questions upon estates in expectancy. “ The doctrine,” says Sir William Blackstone, 2 Bl. Com. 163, “contains some of the nicest, and most abstruse learning in the English law.” And whether the issue take an indefeasible estate by purchase, after a previous estate, given by. the same will, to their immediate ancestor, Or take the same property by inheritance only, is among the most frequent of that class. Christian, in his' notes to Blackstone, 2 Bl. Com. 173, says, “in'innumerable instances, from the ignorance of the persons employed, family settlements, particularly in wills, have proved abortive,” &c. In the instance before us, the difficulty is to discover the intention in the limitation; that is, whether the téstator offers to extend the limitation beyond a life in being, and twenty-one years after. In this case, I will present the principles of construction, and the process of reasoning, by which my own judgment has been finally convinced; in the hope that they may have weight with others. Next to the principle of doing legal justice, and closely united with the duty of supporting our own judicial independence, is the call upon judges to give satisfaction.
    We are “to place the construction, upon the entire will, and not upon disjointed parts.” To regard strictly the maxim, “that the words used, are to be made subservient to the intention.” And “ if the words will bear two senses, one agreeable to, and another against law, that sense is to be preferred which is most agreeable thereto.”1 2 Bl. Com. 379.
    Upon these rules, which are taken from the highest authority, and-■carry an intrinsic weight oi^reason, we are to read the will, in the spirit of the testator. He certainly intended to limit the property bequeathed, to his daughter Elizabeth, and her lineal issue; but he has left it questionable, whether he has so expressed his meaning, as to secure her immediate issue in the practical enjoyment of his bounty, by the means of an independent estate in themselves, or only as distributees of their mother. By an executory devise, a remainder may be limited of a chattel interest. 2 Bl. Com. 171. And the limitations of real and personal property, are the same in wills. Our object will therefore be, 1. to discover, from the will itself, the intention of the testator, in the distribution of his property; and 2. to inquire if the intended distribution constitutes such estate, as the law allows to be raised by last wills. If so, the intention forms the law of the particular will. But such individual law, is like the law of a corporation, to be restricted by the superior law of the country, if they come in conflict.
    First, then, what do the terms of Thomas Bell’s will import ? He •says, “ I give and bequeath to my daughter, Elizabeth Bell, one half of the tract of land, containing, &c., to her, and the lawful issue of her body, forever. I also give her one fifth part of my negro slaves, &c., &c., to her, and the lawful issue of her body, forever, &c.” For the present, I omit the subsequent clause of the will, in order to confine the question of intention, in the first instance, to those words alone. Such a division of the two clauses, will give the defence its full force, and present the opposite argument, more distinctly.
    The words, “ lawful issue of her body, forever,” import, not merely her immediate issue, but the most remote, from generation to generation. It is an estate in tail. 6 Rep. 16. 1 Kent, 229. 6 Cruise, 280. When property is so given to a person, and his issue, in endless succession, the gift is termed a perpetuity; and is forbidden to be so long restricted to the successive issue of the first donee. 2 Bl. Com. 172. For a full review of the doctrine, see the Thellusson case, 4 Yes. 227. But still, the law, while it unfetters the estate from the endless entailment intended by the testator, regards his intention, so far as is consistent with its own rules of policy. It gives to the first legatee, the whole estate, to be at his disposal; but which may, nevertheless, be beneficial to his issue, by the chance of inheriting it. This sense is agreeable to law, and follows the intention, in part, which was to benefit the issue.
    If the testator were allowed to limit his property to successive generations, such a limitation would interfere too much with the unforeseen changes, and convenience of society; and would fetter men-in the necessary use of the prime material of a thriving industry, üpon which national prosperity depends, as for its life blood;
    
      '8^11 the ^aw permits us to limit property to a certain extent. A man may will his estate to any number of persons, in being, jointly, severally, or in succession, and for nine months and twenty-one years after the death of the survivor; as to all his children, and then to their issue surviving them, or surviving the age of twenty-one years. Long v, Blackall, 7 T. E. 98. Thellusson’s Case, 4 Ves. 313. 2 Bl. Com. 172, 3. 3 Cruise, 4, 94.
    Now then, we have to inquire further, whether Thomas Bell has, or has not, by a subsequent clause of his will, so explained the bequest to Elizabeth, and “ the lawful issue of her body,” as to mean, no more than the issue of Elizabeth, surviving her, and thereby limit a remainder to specific issue, after her previous estate for life. If this he his meaning, it is within the legal limitation; and the intention then forms the law of his will. Let us, therefore, see if the words of the subsequent clause fairly qualify the former, and may he made subservient to such intention.
    “ And it is my will and desire, that if any of my sons, or daughters, should die without leaving lawful issue of their bodies alive, then their part of the estate, to be equally divided. among my then surviving children.”
    Let us abridge the two clauses, and connect them, in the following-sentence.
    “ I give io Elizabeth one fifth part of my slaves, to her, and the lawful issue of her body, forever. And if Elizabeth should die, without leaving lawful issue of her body alive, then her part io be equally divided between my then surviving children.”
    When the two clauses are thus brought together, the impression of a perpetuity, made by the terms, “ lawful issue of her body,” is immediately repressed by the words, leaving lawful issue alive.” Because the latter words may go to confine the issue indicated by the former, “ to surviving issue.” As if he had said, “ I givé to Elizabeth,” &c., “to her, and such issue of her body, as she may leave alive, at her death.” If such be the rational connexion, and this the fair meaning of the two clauses, as they stand in the will, then the intention is plain. 1. The negroes go to Elizabeth, for life: 2. to the surviving issue forever: 3. if no such issue, to the surviving brothers and sisters. This would be a lawful limitation. But proof of it must he inherent in the will itself, which, like other instruments of writing, may have its different parts brought together, to aid in the construction of each other; in order to shew the connected meaning, or entire scheme of the author, in the distribution of his property.
    The argument on the part of the defendants, is, that although if the contingency, of leaving no issue alive, had occurred, the part of Elizabeth must .have gone over, yet, as this negative condition did not occur, it simply passes for nothing; and of course, the absolute estate of Elizabeth remains unaltered. It is, therefore, urged, that we are not to impair the strength and legal import of the words, “to her, and the lawful issue of her body, forever,” by turning the expression of an independent contingency into the qualification of an express estate given to Elizabeth; and thus abridge her right, by a mere implication in favor of her surviving issue. Such a construction must strike every professional understanding. It is a strong one for the defendants, and brings us to the next step towards the just interpretation of the testator’s intention. Does the property bequeathed to Elizabeth continue, after her death, as a part of her estate, by reason of the rule, that a perpetuity cannot be created by will; or do the words of the latter clause shew that no perpetuity was intended ?
    The testator may have meant, by that clause; 1st. to describen contingency, upon which the property was to go over; and 2nd. to point out, that he restricted the meaning of the general expressions, “to her, and the lawful issue of her body, forever,” i. e., to such issue only, as might survive her. This simple fact presents a distinction, and a ground for reasoning, which corrects the first impression; and carries absolute conviction to many minds, but not to all. And in a contest between two such constructions of the will, in ■ question; although we would willingly place the true meaning upon the force of proofs, inherent, in the will itself, and “ expound it, rather, on its own merits,” 2 Bl. Com. 381, yet we are not to reject the lights, from cases already adjudged upon wills, which contain analogous limitations.
    It would, however, be needless labor to review the cases upon the general question of limiting estates by will, from the foundation case .of Pells v. Brown, Cro. Jac. 590. They have been often collected. See Porter v. Bradley, 3 T. R. 145, Robinson v. Robinson, 3 Atk. 736, 1 Bur. 38. And they are no where better compared and digested, than in 1st U. S. Law Journal, 583, reviewing our own •case, of Carr v. Green, 2 M’C. 75. A review, by the by, which, by pointing out a judicial deviation, affords wholesome admonition to judges, that the old highway, marked out by former decisions, is a safe one.
    But the principles of construction which I first notice, are fully recognized ; and especially, those now immediately applicable, to wit, that wherever property is willed to one, and his issue, generally, the first donee takes a fee conditional in lands, or an estate forever in chattels: not, however, because such words gave an absolute estate 
      ¡n c]lattds, but by implication of law. But if the gift be to certurn particular iss'ue, named, or described, as to tne issue mat shall survive the first donee ;■ such specific issue may take an indeperL<jCElt estate, after the life estate of the first taker. At the same time, it is conceded, that this will not be done by implication merely, when it -would destroy an absolute estate, plainly and expressly given to the first taker. The lucid exposition, in Carr v. Porter. 1 M’C. Ch. 66, given by Judge Nott, upon the principles of construction, is full and convincing upon this last point.
    That decision lies at the foundation of the defence; and if the defendant’s case can be brought within its true principles, it must prevail. But, in that case, the devise was to the Wilsons, and no more —no devise to their issue — and that gave them the whole estate, expressly ; whereas, in the case now before us, the bequest is “ to Elizabeth,” “ to her, and the lawful issue of her body.” What do these words indicate under the foregoing principles? A perpetuity, assuredly. And Elizabeth would take the whole estate, i. e., by legal intendment; but the same words express, also, the intention, to give an estate to the issue. Thus we have, before us, two things equally plain: 1. an estate given to Elizabeth, which is like Wilson’s will; but 2.' the intention is expressed, that the same shall pass to her issue, forever. This latter is not in Wilson’s will, and is illegal, only if intended for issue, generally.
    
    “ It is very common,” says Christian, in his notes to 2B1. Com. 174, “ to bequeath chattel interests to A. and his issue ; and if he die, without issue, to B., &c. Where the words are such, as would have given A. an estate tail, in real property; in personal property the limitations are void,” &c. But if it appears from any clause, or circumstance, in the will, that the testator intended to give it over, only in case A. had no issue living at the time of his death; upon that event, the subsequent limitation will' be good, as an executory devise. See Fearne, 371, 3 P. Wms. 262.
    Now, then, when after other bequests of the like kind to other children, the testator adds; “ and it is my will and desire, that if any of my sons and daughters should die, without leaving lawful issue of their bodies alive, then their part,” &c., “ to be divided among my then surviving children:” does he not reasonably indicate, that the two clauses were connected in his mind; and that the issue meant by the former words, “her lawful issue forever,” are the children of Elizabeth, alive at her death? This appears tome the proper conclusion, from the letter of the will. If the testator had meant to limit the estate to each child’s issue, respectively, and- in succession, he would naturally, have kept up the idea, and ended the second clause, “ among Tf 11 idy then surviving childrenand their lawful issue, forever, perpetuity had been in his head, would he have abandoned his scheme of entailment, upon his estate falling into the hands of one, or more, of those very children ? I think not, from the apparent object of the testator. When, therefore, you place the construction in the language of Sir William Blackstone, “ upon the entire will, and not upon disjointed parts,” no perpetuity appears. But the remainder takes effect, simply because, in the former clause, it is expressed as the wish of the testator, that the issue shall get it. And in the latter, his wish is brought within the rule of legal limitations, by confining the estate to such issue as may be alive at Elizabeth’s death.
    Let us, however, fairly weigh the defendants’ answer to this construction of the two clauses. It is, that you give the remainder to the surviving issue, in diminution of the absolute estate, 'first given to Elizabeth : and that this is done by implication, and is the mistaken use of the doctrine of implication; which, in Carr v. Green, was so justly corrected by Carr v. Porter. But what is the rejoinder to this answer ? By the express terms ofBell’s will, Elizabeth gets no more than a life estate in the slaves; and they are, as expressly given to the issue, after her death. If she can get more than a life estate, it is only by legal implication, in order to substitute an absolute estate in the mother, which her issue may inherit And this is done for the purpose of following the general intention, in favor of the issue, as near as the law permits, in cases of which the perpetual limitation cannot be carried out legally.
    To assume, that Elizabeth took an absolute estate, is to take for granted, the very point for discussion. By the expression of the will, she takes only an estate for life. She can take an absolute estate, only if it was the evident intention of the testator to give the same property to all her issue, forever. But was such his intention, is the very question, and gist of the case. And we are to understand his meaning from his whole will, without excluding any part, which may reflect light upon the true construction of the estate given.
    The implication is complained of. But is it not plain, that the implication from the second clause quoted, is, at most, opposed to the implication, that Elizabeth took an absolute estate, instead of the one ex-pressly given by the testator ?
    But again, the implication, in favor of the surviving issue, does' no more than uphold them in the estate, liberally given to the issue; and does, in no way, derogate from the express estate to Elizabeth for life. This, as I understand, and especially from the fine argument of Judge Nott, in, the, case of Carr v. Porter, is the proper office of Replication ; that is, to carry out the general intention, which fnay have been unskilfully expressed, in the devising clause: provided,. you can do so under the terms used in the explanatory clause. complaint should rather be against the mistaken use on the other side of an implication of law, which would give an absolute estate to Elizabeth, by reason of a supposed perpetuity. Whereas, such implication can apply only, after first deciding that the gift is to the issue, in endless succession.
    
    Can there be any doubt, upon authority, of the manner of connecting the two clauses ? In Dainlry v. Daintry, 6 T. R 314, the will gave an estate for life, to the son, which was afterwards enlarged to an estate tail, by a subsequent clause, to wit: “if my said son should-die, without leaving issue,” then over. The whole Court concurred in this mode of connecting the two clauses. In Robinson v. Robinson, 1 Bur. 51, the same decision was made. In Porter v. Bradley, 3 T. R 145, the Court say,- the first part of the devise carries a fee;' “ but it is clear, that those words may be restrained by subsequent-ones, so as to carry only an estate tail.” Now, giving the utmost force to the construction of an absolute estate in Elizabeth, we go no further in Bell’s will. In Thelusson’s case, 4- Vesey, 329, it is said,- “ every word must have its effect,” In Knight v. Ellis, 2 Bro. C. C. 570, “the Court will go any length to carry the intention,” &c., “ for the benefit of those to whom the testator intended a benefit.”’ Meaning, doubtless, the general intention; which, in Bell’s will, is obviously in favor of the issue. How clear it is, then, as Fonblanque says, “ that an estate may be enlarged, or controlled, by im** plication.” 2 FonbL-55, book 2, ch. 3, sec.'2, note h. Meaning, unquestionably, with Sir William Blackstone, “necessary implica-* tion,” or, at least, “highly probable.” Bl. Com. 382.
    In Bell’s will, I should rather call it his plain intention, expressed, in the latter clause, that no other than the surviving issue should-take the remainder. Assuming that a skilful lawyer had written the will, we would conclude that the second clause had been added, in order to render the several bequests, referred to, explicit, and lawful. Are we, then, to disjoint the obvious adjunct from the principal clause ? On the contrary, is it not the unforced induction from the will itself, that we should give the surviving issue the benefit of the rule ;■ that we are to adopt the sense agreeable to law, when the right mean* ing of the will gives them an independent estate? I here readily grant, that if the negroes given to the issue, in the first clause, could enure to their benefit, as a fee conditional in lands, there would be room for urging, that we might leave the latter clause, to mean no more than the contingency, upon which the property was to go over; because it might then be superfluous for any other purpose, as a lawful estate would have been already given by the first clause to the issue named.
    It is for that reason, I apprehend, that, in England, Such explanatory clauses have been sometimes Construed differently, as they relate to real, or to personal estate; that is, according as their aid is requisite to make the benefit intended by the testator, to the issue, practicable, or not. See Forth ®. Chapman, 1 P. Wins. 6fi7. Stafford v. Buckley,2 Ves. 180. Sheffield®. Lord Orrery, 3 Atk. 288. Crook ®. De Vandes, 9 Ves. 203.
    Without such a distinction, we might, in some cases, explain away a fee conditional, really intended to be given, from a notion, that such a distinction was more technical than sound. See the reasons in Knight v. Ellis, 2 Bro. C. C. 578. But, at all events, it points out in what cases the subsequent clause may be considered explanatory of the clause, which directly devises the property; that is, wherever it supports the general intention of the testator to give to the issue.
    But I now leave off reasoning from the details, and forms, of the particular will, and will proceed to cite adjudications upon similar wills; and these areso strong and applicable, as to induce the hope, that all parties will agree, that this Court could make no other decision than in support of the former case of Means ®. Henry upon the same will. -
    In the case of Lampley ® Blower, 3 Atk. 397, the bequest was to nieces and their issue; but if either should die, and leave no issue, then to the survivor. It was held that a surviving son of one of the nieces, took his share in his own right, and not by inheritance. If so, must not the surviving children of Elizabeth Bell take her fifth part in their own right ?
    In Read ®. Snell, 2 Atk. 642, the bequest was to a daughter, and the heirs of her body; but in case the daughter died, leaving no heirs of her body, then over, &c. This was held a gift for life, to the daughter,- with a contingent remainder to the issue surviving her; which is, precisely, what is claimed for the issue, left alive by Elizabeth Bell.
    I have assumed, in one part of the argument, that the will of Thomas Bell may have been drawn by good counsel. And I here ask, if it had been drawn by the best lawyer in Beaufort, and he now stood before this Court, in support of an independent estate to the surviving issue of Elizabeth Bell, and had adduced the two cases I have just noticed, as his authority, and justification, for giving such independent estate, in the terms set forth in Thomas Bell’s will; I ask, if his skill could be questioned, or the orthodoxy of his language doubted?
    
      Let us now take a different case. Tn Forth v. Chapman, 1 P„ Wms. 667, the bequest was to a nephew, generally; but should he die, and leave no issue, then over. Here the devise over was held goo^ no isgU6 being left. But it must be admitted, that it does not follow, that if there had been issue surviving, such issue would have taken the estate; because there was no gift to the issue. And to imply a remainder to the issue would be to derogate from the estate given to the nephew in absolute terms; which would be an implication, without any plain intention in favor of the issue, on the part of the testator, and without any necessity arising out of the characterof personal estates.
    For an instance, in which such an implication in favor of surviving issue might arise, take our own well considered case of Brummet v. Barber, 2 Hill, 543. The gift was to the use of Comfort Perry, t: and the heirs of her body;" “ but should she die without children to heir the said negroes,” then over, &c. The limitation over was held good, on failure of “ children to heir,” &c. And assuredly, had any children survived Comfort Perry, they might have taken the negroes, because the direct gift was to the “heirs of her body,” in plain terms. It is the conclusion drawn in favor of the first taker, the nephew, in such cases as Forth v. Chapman, and not attending to the distinction, when the gift.is also to the issue, which leads to the error of supposing, that Elizabeth Bell took an absolute estate in the slaves now in question; and'this by confounding the construction, placed upon similar limitations, in some of the English cases, in order to create an estate tail in lands. But how explicitly is the distinction between such a case as Forth v. Chapman, and the one now before us, pointed out in the case of Knight v. Ellis, 2 Bro. C. C„ 578 ; while at the same time, the reason for construing the same words differently, when they refer to lands, is presented as consistent with the character of real estates.
    The Court says, “ A man by his will, devises to A. for life,” &c. “ If that were all, the disposition would end there, as to A.; and any other disposition would be effectual, after his, A.’s death. The testator then gives the same fund over to B., after failure of the issue of A. What is the Court to do % It is clear, that a life interest only, is given to A. It is clear, that no interest is given to B., while there is any issue to A. The consequence is, that as no interest springs to B., and no express estate is given, after the death of A., the interme■diate interest would be undisposed of, unless A. were considered, as talcing for the benefit of his issue, as well as for himself; and as the words are capable of such amplification, the Court naturally implies an intention in the testator, that A. should so take, that the property should be transmissible, through him to his issue, and he <was, therefore, considered as taking an estate tail, which would descend on his issue. Now an' estate in chattels is not transmissible to the issue in the same manner as real estate, nor capable of any kind of descent, and therefore an estate in chattels so given, from the necessity of the thing, gives the whole interest to the first taker: but if the testator, without leaving it to the necessary implication, gives the fund expressly to the issue, they are not driven to the former rule, but the issue may take as purchasers, and then there is an end of the enlargement, of any kind, of the estate of the tenant for life; for another estate is given, after his death, to other persons, (the issue,) who are to take by purchase: it no longer rests on conjecture.” 2 Bro. C. C. 578.
    This reasoning appears to me conclusive. Whether we ought to adopt the English judicial construction in reference to real estate, is not now to be decided. But the distinction between such wills as make an express gift of chattels to the issue, and those which do no more than give the same property over, upon the contingency of no issue surviving the first taker, is plain, and conclusive.
    Without meaning to imply, that a different construction might be put upon Bell’s will, in reference to the landed estate, let me remark, that the distinction, under the English authorities, in reference to real and personal property, does, in no way, derogate from the rule, that in executory devises, the limitations are the same in real and personal estate. The distinction is, between the implication of the same words, when used in reference to real, and personal, property, because they differ in their transmissible quality; and the object. of the distinction is, to prevent an immediate reversion to the testator’s estate, when he himself clearly contemplated none. Fearne, 487, note. In such cases, the rule of construing wills, so as to follow the intent, as nearly as law permits, technically called construction “ cy pres,” takes place. 4 Cruise, 161.
    Let us now take our own case of Carr v. Porter, 1 M’C. Ch. 60. It turned upon the construction of William Wilson’s will. “ The rest and residue of my estate, both real, and personal, to be equally divided between my two grandsons, Wilson, and Thomas,” &c., &c., “but should they die, leaving no lawful issue, in that case, I give and bequeath the whole of my estate, both real and personal, to Richard Godfrey,” and others. The Court of Appeals, decided that Wilson, and Thomas, took an estate, which they might alien forever; subject to be defeated, only, upon both dying without issue surviving. This decision corrected that of Carr v. Green, 2 M’C. 75, which had given the estate to the issue surviving Wilson, and Thomas.
    But'for illustrating the present case, let us suppose, that the will of William Wilson liad run thus: “The rest and residue, &c., to Wilson, and Thomas, to them, and their lawful issue, forever; but should they leave no lawful issue, I give and bequeath the whole to jjichar¿ Godfrey, and others.” If William Wilson’s will, had so given the rest and residue to the issue, as well as to Wilson, and Thomas, I ask if Judge Waties’ argument, in favor of the issue taking by purchase, see Carr v. Green, 2 M’C. 75, could have been answered?
    On the other hand, interpolate those words, “ their lawful issue forever,” into the extract from William Wilson’s will, made by Judge Nott; and instead of that regular series of skilful arguments, with which his opinion abounds, it would be inconclusive, if not powerless, to shew, that Wilson, and Thomas, took more than a life estate. The whole strength of this admirable refutation of the former decision, in Carr v. Green, turns upon the want of those words, in William Wilson’s will; and had they been found there, the fine, ingenious argument of Judge Waties would have withstood any test upon the point of construction, at least, as far as relates to personal estate, either under English, or American decisions.
    I have taken, perhaps, needless time, in pointing out the precise point of difference, between the antagonist opinions, given by two great judges, on William Wilson’s will. Because I do suspect, that some apprehension has been felt, that the late adjudication in Henry v. Means, may shake the principles of the decision in the case of Carr v. Porter. But this is certainly,'a groundless fear. On the contrary, Bell’s will presents the precise case, in which, from the reasoning of both Judge Nott, and Judge Waties, the two Courts would have been unanimous in giving, at least, the personal property, to the surviving issue, as purchasers; which is all that is now in dispute. Bear in mind, that the terms, “ to A., and the issue of his body, forever,” give to A. an absolute estate, only by implication of law. The bare expression gives A. no more than a life estate in chattels; as it does a fee conditional in lands, which, literally, means a life estate to A., and after his death, to his issue, in succession. Bear in mind, this plain distinction, between the estate literally given, and the absolute estate implied by law, when such implication becomes necessary, in order to avoid perpetuity; and the apprehension, that the authority of the decision in Carr v. Porter is impaired by that of Henry v. Means, vanishes. On the contrary, we would support the-true meaning ot that leading case; and the confidence in our present decision, is not a little derived from the intellectual lights of that approved adjudication.
    The trite maxim, of “ stare decisis," may have been sometimes reated with little respect, and in some few instances neglected; but there can bo few greater errors, than such license. Every lawyer, of necessity gives advice, bottomed upon the decisions of the Courts; and in purchases, sales, and contracts, men assume such decisions, as pointing out the law that is to govern. From which it clearly follows,.that adjudged cases make practical law: and if the Courts, themselves, do not adhere to such decisions, we cannot be safe in the rights of property, or person. Forms and pleas, rules and orders of Courts, and the judicature itself, may be changed with trifling inconvenience, and but to a few; but for the purposes of men in general, for the rich, and for the poor, the widow, and the infant, we may, more wisely, and more morally, try experiments upon the constitution of the State, than innovate upon established principles, or the known rules of construction, that apply to every day conduct, and every day business. In these respects, and they occur every hour, the ancient observation, “ misera semitas est, ubi jus est vagum, aut incognitum,” is true to the letter.
    For what purpose do wise counsellors treasure up judicial adjudications, from their first annals in the year books, down to the present moment; but for the object of renewing, and making sure of the beaten track, where they find the best means of their own justification, as well as safe footing for their clients. Lawyers are never more truly in their avocation, nor doing better their duty to the country, than when they closely, but fairly, supervise the decisions of the judges. This professional attribute is so important to the regular administration of justice, that it cannot but presume the standing, and usefulness, of a vigilant body of counsellors, always ready to sound the alarm, when just, or to defend the bench, when unjustly suspected of error, or of the temper, that would render the rules of law unsteady. But in the particular instance, of the construction of Bell’s will, to be found in the case of Henry v. Means, I must add, and I was not of the bench, that decided the case, that I find only confirmation, in the principles of law that governed the decision in Carr v. Porter.
    
      
       The above case, which is referred to in the note to Manigaull v. Deas, ante, p. 299, is here inserted at the request of the Chancellors, who are desirous that the two cases should be reported in the same volume.
    
   O’Neall, J.

Per Curiam, For the reasons stated in the opinions which have been delivered, the appeal in this case, on behalf of the defendants, must be dismissed. And so far as relates to the claim of Sarah Henry, as one of the issue of Elizabeth Bell, this Court has come to the conclusion, that the appeal on behalf of the complainants must also be dismissed. We think, however, that the possession of John Talbird, Sen., cannot avail to vest a title in him, by the statute of limitations, either against the distributees of his son, John Talbird, Jun., of which‘he was administrator, or against the claims of his infant daughter, Elizabeth Talbird. The shares of John Talbird, Jun., and Elizabeth Talbird, in the property devisedto *ssue mo^ier by &® will of their grandfather, are, therefore, neither of them, liable under the executions against their father, John Talbird, Sen.; andas to both of these shares in the slaves now jn question, the injunction must be perpetual. In other respects, the decree of the Circuit Court is affirmed.

De Saussure, Johnson, and Harper, Chancellors, and Gantt, Richardson, and Butler, Justices, concurred.

Decree modified.  