
    Williams vs. Turner.
    Nashville,
    December, 1837.
    Testator devised personal property to his children, and then proceeded thus, “It is my wish and desire that should any of my children die without increase, that my executors shall take back the property that 1 have devised to them, and divide it amongst the rest of my children:” Held, that this limitation was not too remote, but created a good executory devise, if either of the devisees died without issue at the time of his or her death.
    Baily Turner made his will in 1834, and shortly thereafter died. The clause in the will which is the foundation of this suit, is as follows. After a previous devise to' his children, the testator proceeded, “it is my wish and désire that should any of my children die without any increase, that my executors shall take back the property that I have devised to them, and divide it amongst the rest of my children.” The property thus bequeathed, consisted ofslaves and other personal property.
    Jane H. Turner, one of the children and devisees of Baily Turner, married the complainant, Williams, after the death of the testator. She afterwards died without issue. The com-plainaint administered upon her estate, and filed this bill for a portion of the estate of Baily Turner deceased, which he claimed as administrator of his deceased wife. The chancellor decreed that Baily Turner’s .will, vested the absolute pro-peily in his children, because the limitation to the surviving children was too remote- This decree was appealed from.1
    
      
      W. Thompson, for complainant,
    contended, that the limi* tation to the surviving children was too remote — that the word “increase,” was synonimous with “issue,” and if so, it was a limitation after an indefinite failure of issue, which in both real and personal estate made the executory devise void. He cited 4 Kent’s Com. 273 to 275: Fearn on Rem. 444.
    
      Geo. S. Yerger, for defendants,
    admitted the general rule to be as stated by complainant’s counsel, but this being a case ofpersonal estate, courts will lay hold of any expression which denotes an intention to tie up the generality of the words, “dying without issue.” -Fearn on Rem. 471 to 476, and cases there cited: Anderson vs. Jac'cson, 16 John. Rep.: Cudsioorth vs. Hale, 3 Des. 258: Cliften vs. Heig, 4 do.: 10 John.Rep. 12: 1 Harris and Gill 111: 2 Mun. Rep* 479.
    In all the cases whether of real or personal property, although adyingwithout issue generally, may be too remote, yet if there are words restraining it, it is good. Fearn 468: Kilpatrick vs. Kilpatrick, 13 Ves. Rep. The words in this case which" restrain it are, “that the executors are to take back the property and divide it amongst the rest of the children.” This shows the testator intended to confine the limitation to “issue” or increase living at the death of the first taker. These words in the case of real estate, have been held sufficient to create a good executory devise. Anderson vs. Jackson, 16 John. Rep.: Lewis vs. Claiborne, 5 Yer. Rep. 166. And however doubtful the authority of these cases may be in cases of real estate, (vide 1 Kent 2S2, note a,) yet upon all bands it is admitted they are clearly the law as regards personalty.
    The words, “shall return to my executors and be divided by them,” are held to create a personal trust to be performed within the time allowed by law to prevent perpetuities. Kelly vs. Fowler, 6 Brown’s P. Cases; cited, Fearn, 482: Jackson vs. Christmas, 4 Wend. Rep. 277,
    Again, the term “increase,” has no technical effect'or meaning. It is always used as synonymous with “children,” as contra-distinguished from the word “issue.” If it means “children,” the limitation over is clearly good.4 Kent’s Com. 278: 5 Day’s Rep. 517: 2 Hill’s South Carolina Hep. 544.
   Reese, J.

delivered the opinion of the court.

The complainant is the husband and administrator of Jane H. Williams, formerly Jane H. Turner, one of the legatees under the will of Baily Turner deceased, and the question which constitutes the subject of dispute in this cause is, whether the husband is entitled to her legacy, or whether the defendants. are so entitled, under a limitation in the will. The clause of the will upon which the question arises is the following: “It is my wish and desire, that should any of my children die without any increase, that my executors shall take back the property that I have devised to them, and divide it among the rest of my children. Do the terms of this clause constitute a good executory devise of the share of Jane H. Williams, to the surviving children of the testator, she having died without issue, or, in the language of the will, “increase” living at the time of her death!1

The words “die without issue,” by a long train of decisions, of themselves import an indifinite failure of issue, whether used in reference to personal or real estate, and the question therefore is, whether the accompanying words shall in this case limit and restrict the meaning of those terms to a dying without issue living at the death of the devisor. It is well settled, that in a case of personal property, as is the case before the court, the fixed and technical meaning of the words “dying without issue,” will be permitted more readily to give way to the force of restrictive words than in the c.ase of real estate.

But the circumstances in this case, showing it to be the intention of the testator to limit the. dying without issue to the time of the death of the devisee, are of such strength as to constitute a good executory devise, as well oflands, as of chattels. His executor was to take back the property and was to divide it among the rest of his children, showing that the failure of issue was expected to take place during the life of the executor* who was to act in the matter; to wit, take back and divide the property, and the division was to be made among the rest of the testator’s children. These terms clearly restrict the operation of the general words, “dying without issue,” to the time of the death of the devisee, and the’executo-■ry devise must therefore according to the rules of law, have effect. It is needless to refer to, or comment upon authorities so abundantly existing upon this subject, for it is believed no case of personal property can be found in England or the United States, where restrictive words of equal efficacy have been used, and the courts have failed to declare them as constituting a good executory devise.

The decree of the chancellor will be reversed and the bill must be dismissed, but let neither party recover costs.

Decree reversed.  