
    GENERAL COURT,
    OCTOBER TERM, 1799.
    Davidge vs. Chaney.
    Repievin for negro slaves. Case stated.
    It was admitted that Robert Davidge, being in his lifetime possessed of two negro slaves, viz. Moll and Fanny, su his own proper slaves, by his will, dated the. 3;1 of June 17G9, made the following bequest: «ítem, 1 give «arid bequeath unto Joshua Yates, the san of Eleanor ¿’Yates, during his natural life, one. negro woman named “Moll, and her daughter Fanny; but in case the said “Joshua Fates should die without lawful issue, my will is «that the said two negroes, with all their issue, shall be «the property of my son, John Davidge, and his h. irs.5*
    That John Davidge, the son of the testator, and the executor named in the said will, after the death of the testator, took out letters testamentary upon the estate of the said Robert, and delivered the said negro slaves, Moll and Fanny, to the said Joshua Yates, in the said will mentioned, who received the same in his possession in the year 1769, and continued to hold them, and their issue, until Ms death in the year 1790. That the negro slaves in the writ and declaration in this cause mentioned, are the same persons mentioned in the said will, and their issue, viz. the children and grandchildren of the said Moll raid Fanny. That the said Joshua Fates died on or about the 1st of January 1790, intestate and without issue, leaving a widow Frances Yates, who obtained-letters of administration on his estate, and possessed herself of the said negro slaves. That John Davidge, the son and executor of the testator, died on or about the 1st of January 1793, and that Oner Davidge was the executrix of the y«id John Davidge. That the plaintiff, after the death-of th-‘ said John Davidge, to wit, on the 1st of January 1794. obtained letters of administration de bonis non, on tin- estate of the said Robert Davidge; and after the death of the said Oner Davidge, the plaintiff on the 1st of January ■1795, obtainecUetters of administration de bonis non on the estate of the said John Davidge. That the said John Davidge did not further administer the said negro slaves, than by delivering them to the said Joshua Fates as aforesaid; and that the said Oner Davidge never did at any time administer the said negro slaves as the personal estate of the said John Davidge. And that the defendant took the said negro slaves as stated in the declaration, &c. This action ivas brought by the plaintiff as administrator de bonis non of John Davidge.
    
      Key and Shatiff, for the plaintiffs
    
      Mason and Johnson, for the defendant.
    
      Johnsoiif for the defendant.
    The question is, whether the remainder over to John Davidge is good? It resolves itself into three points:
    
    Is t. An executory bequest or devise, onfailure of issuer is void.
    2d. Where there are Words io limit the failure of issue to a life in being, the devise over is good.
    3d. In this case there is nothing to confine the general import off the words on failure of issue; hut the bequest over was only to take place on an indefinite failure of issue, therefore void* ,
    Executory devises cannot be defeated, and therefore ought to be restricted, otherwise they would create per»' petuities. By the old law, the gift or bequest of personal property for a moment, vested the whole interest. Manning’s case, (8 Coke, 96,) first admitted personal property to be bequeathed for life, with a remainder; and that the tenant for life could not defeat the remainder. Prior to that case it had been determined that personal property could not bo limited for life, with a remainder. But if the person who claimed the life estate aliened the term he defeated the remainder — 2 Blk. Com. 174. Manning’s case determined the devisee for life had no power of defeating the remainder. It is not material to know when the. old law was changed. It is now clearly established that a remainder by way of executory devise or deed of trust, may be limited on a chattel interest, with certain restrictions; but I contend, not on failure of issue generally.
    
    First Point. 1 Lev. 290, Love vs. Windham, is in point, that a devise of a term on failure of issue is void. Follex. 29, Fearse vs. Reeve — Limitation of a term to R. during his life, and if he die without issue, remainder over. Ileld to be void. 1 Ld. Maym. 523, Badger vs. Lloyd — The court agreed that an executory devise, on failure of issue, w’ao void. 2 Mkyns, 3 OS, 312, Beauderk vs. Dormer — Lord llardwicke held that a limitation over of personal estate, after the death of the first taker without issue generally, was void. The court observed on the word then, and from that word attempted to restrict ike 
      
      issue. Fearne Con. Rem. 366, 367 — a devise over, after failure of issue generally, is void. Fit%. Gibb, 68. 2 Ve%. 181, Stafford vs. Buckley — Limitation of a term or personal estate, to take effect after failure of heirs of the body, or dying -without issue, without other restriction, is too remote, and therefore is void, 2 Mk. 376, Saltern vs. Saltern — Limitation over without words of restriction to confine it to the death of the first taker, is not good. There is no such rule that a devise to a man generally of a chattel interest, and if he die without issue, remainder over, that it shall be construed to mean a dying without issue at the time of Ms death. 3 Mk„. Sheffield vs. Orrery and others — It is clear and certain, that no limitation over of personal property, after a dyIrg -without issue generally, can be admitted. Ca Temp. Tal. 262/ Fearne Con. Rem. 322, 325, 341, establishes the same principle. 2 Bac. M. 76, 77, confirm the principle. 2 Fearne Con. Rem. 159 — An executory devise, after an indefinite failure of issue, though good if restrained to failure of issue within 21 years after a life in being, yet if not so restrained in its creation cannot be eventually supported by a qualification of that sort in its creation. 1 Burr. 273 — Limitation over of a personal chattel, after dying withoutissue generally, is void. The rule unquestionably is, that there can he no executory devise after an indefinite fail ure of issue. — 2 Fearne Con« Rem. 221. The authorities on the second point clearly establish the first position. They are all determined on particular expressions in the will: are exceptions to, and confirmatory of, the, general principle.
    Second Point. Where there are expressions to limit the word issue, the remainder is good. Fell vs. Brotan, Cro. Jac. 590 — This case is said by Lord Kenyan, in Porter vs. Bradley, (3 T. R. 143,) to he the magna, charta of this branch of the law. In this case there was a devise to 33. and if he died without issue, living A, then A. to have, &c. It was adjudged that B. took a vested fee simple, and that the limitation over to A. was, good as an executory devise to take effect on B’s dying without issue in the lifetime of A. Here the remain-, der was good on the word living A. Particular expressions have been construed to limit the taking over to a dying without leaving issue living at the time of bis death. Forth vs. Chapman, 1 F. Wrm. 663 — Devise oyer, if the first devisee should depart this life leaving no issue, was held to be good/ for the words leaving no. issue, must be restrained to leaving no issue at the time of his death. 2 Mk. 313, shews the ground of the determination in Forth vs. Chapman, and in Fearne, 363. The conclusion is drawn from the same case. Mkinson vs. 
      
      Hutchinson, 3 F. Wms. 259," also determined on tlie word kariSo also 2 T. R. 720, and shews the ground of †(5(, decision in 1 P. Wms. 663. And also'in 3 T. R. 143, 011 '-he words leaving no issue behind him. From the word leaving, the court, in all these cases, construed it leaving no issue living at his death, and confirm the distinction in the case of Forth vs. Chapman, 1 F. Wms. 663. Target vs. Gauntt, l P. Wins. 432-^-Devise to «9 for life and no longer, and after his decease, to such of the issue of Jl, as he by his will should appoint, and in case he should die without such iss :e, remainder over. Held to be good. For by the word issue shall be construed such as he could appoint; consequ; ntiy - the. remainder must have taken place immediately after Ms death. Maddox vs. Stains, 2 F. Wms. 422 — The word issue restricted by the word chiluren, and establishes the principle that a devisee on a general failure of issue is void. Co. Litt. 20. a. (Note 5,) speaks highly of Fearne’s Con. Rem. says that it is a work so very instructive on the dry and obscure subject of remahiders and executory devises, that it cannot be too much recommended to the attention of the diligent student. Fe-arne Con. Rem, 372 — The conclusion lie draws from all the cases is, that words in a will, indicating an intent to restrict the generality of the expression, dying without issue, will make the limitation over good. 2 Fonb. f-26, of the same «'pinion.
    From the authorities 1 trust it clearly appears, that a devise on failure of issue generally, is void; but that the court will avail itself of any expression to confine the general mean ng.
    Third point. Are there any restrictive words in the wilt of Hobert Fates, so as to confine its meaning to issue living at Joshua Fates’s death? That the testator did not intend the negro slaves should go over, unless on a general failure of issue,'is evident. For to give a different consinu tion would have deprived a grandchild, if its father died during the life of Joshua Fates. But here it does not depend alone, on the general words; for if he did not mean a total failure of Issue, the grandchildren of the negro women would not pass over. By what rule must wc construe the. issue of Joshua Fates to children, and not give the same construction to the same word when applied to the. negro slaves? The cases which have been detrrmined are all, by construing issue to mean children living at the death of the first devisee. Indeed the case of Maddox vs. Stains, 2 P. Wins. 422, was determined on the word chiluren; for whether she would leave children would appear at her death.
    
    
      Key, for the plaintiff.
    
      Manning’s cáse, 8 Co. 96, is the first decision upon the question. Courts are only restrained by positive rules of law; and they will lay hold of any circumstances to make the limitation over good. The words in this will shew the intention of the testator, and that he never contemplated a dying without issue indefinitely. Fearne Con. Rem. 322, 323, 341 — the law is here laid down generally. The distinction is subtle between the words dying without issue, and leaving no issue. This shews that courts are determined to carry the intention of the testator into effect. Fearne Con. Rem. 366 — The words “in manner aforesaid,” referred to the general li itition without issue, or the Word “then” would have been laid hold on. 2 Fez. 181. 2 Atk. 376. 3 Mk. 287, are all on an indefinite failure of issue. There are words in the will indicative of a failure of issue at the time of the death of Joshua Fates. There is an express estate for life given to him; and the subsequent words operate to enlarge the estate by way of implication. Could the testator mean that negroes Moll and Fanny w'ere to go over on an indefinite failure of issue? There was no probability that Moll or Fanny would outlive Joshua Fates. Fearne Con. Rem. 352 — Though an executory devise, to vest on a dying without issue generally, is void, because too remote, yet where the dying without issue is restrained to the period of a life in being, an executory devise thereon limited will be good. The devise for life to Joshua Tates, and after his death without issue, the original stock over, are strong circumstances to shew the testator could not mean an indefinite failure of issue. Fearne Con. Rem. 368 — restrained on the circumstance that the executor should distribute. The testator has used general words. In case of his dying without issue living at the time of his death, must have been his intention, because Moll and Fanny were to go over. Fearne Con. Mem. 372 — Where a personal estate is limited to one for life expressly, and if lie die without issue, remainder over, such remainder over is good; because the express estate for life shall not be enlarged by mere words of implication — 1 Eq. Ah. 362, pi. 12. In Doe vs Ferryn, 3 T. R. 494, it is said by Butter, J, that the words dying without issue have been frequently held to mean without issue at the time of the death of the party, in cases of personal property, but not in limitations of freehold estates — there seems no difference in the construction of the words dying without issue, or words to that effect, when applied to real or personal property' — 3 T. R. 146.
   Chase, Ch. J.

The court are of opinion, that where the words in a will would create an estate-tail in lands either expressly or by implication, that the limitation over of personal property is not good, unless indefinito expressions, dying without issue, or heirs of his body, are restricted by some expressions or words in the will indicative of an intention that the first estate should cease on the first taker’s dying without leaving issue at the time of his death.

Judgment upon the case stated for the defendant, 
      
      
         Opinion of the late Daniel Dulany9 Esquire, upon the samo question.
      eí I am of opinion, that the limitation to T. B. Hodgkin is good. There are a great variety of cases on this subject; and general rules have been laid down by reporters, where the determinations have been on the particular penning of wills. Where there is a limitation over of personal estate upon a dying without issue, unless there be some words in the will to restrain the meaning to a dying without issue living at the death of the person to whom the bequest is first made, the limitation over is void; for where the words of the will are general and unrestrained, issue is nomen collectivum, and ex vi termini takes in the whole question In the case oFinbury and FUIcin, the chancellor construed the words after her decease, as at her decease, and relative to the decease. The case of Atkinson and Hutchinson. was of a term for life, remainder to the children A. shall leave at his death, &,c. The whole bequest was coupled, and on the particular penning of the will, the devise over was held good by Lord Talbot. In the case of Forth and Chapman, the words were, if the nephews, should die and leave no issue, &c. which Lord Macclesfield said related to the time of their deaths. In the case of Nicholh and Hooper* the words were, to be paid within six month after the death of the sur-> vivor, &c. which restrained it to a dying without issue at the time of the death.
      
      In the case of Beauclerk vs. Dormer, the above cases, and many, others upon the same head, are remarked upon by Lord Hardwicke9< whose opinion is, that a dying without issue, without some restriction arising from the words of the will, are not to be understood dying without issue living, &c. and he observed, that he did not know of one instance of it, and cited the case of Green and Rod against it.” But upon the particular penning of the present will, I think it pretty clear, that the limitatirn over is good. The bequest for life to T B. and after his decease to any child he should have, and in case of his death without usue, &c. i. e. without having any ch Id By the plain words of the will immediately upon, or at the decease of ,T. B. such child would take, and in case of no such child to take, then T. B. Hodgkin was to take, so that his taking depended upon T B’s. having no issue to take., i. e. having no issue living at the time of his decease.”
     