
    Deborah Ray versus John F. Enslin and James Ray.
    
    
      [February Term, 1799,
    
      in Suffolk.)
    
    A devise to the wife of the devisor for life, “ and after her decease, unto iny daughter and her heirs forever. But in case my daughter should happen to die before she come to age, or have lawful heir of her body begotten," then over, &c. Held, that the daughter took an estate in fee simple, defeasible upon a contingency reasonably determinable.
    In this action the demandant, Deborah Ray, claimed her dower in certain estates, as the widow of Caleb Ray, deceased. The cause was submitted to the Court on a statement of facts, the substance of which is contained in the following abridged sketch: — James King, being seised in fee of the premises, in 1710 made his last will and testament, and therein devised the same as follows, viz.: — ,
    “ All the rest and residue of my estate, real and personal, in possession or reversion, whatever or wheresoever, I give unto my loving wife, for and during her natural life ; and after her decease, unto my daughter and her heirs forever. But in case my daughter should happen to die before she come to age, or have lawful heir of her body begotten, then after my wife her decease, I bequeath unto my loving sister, Deborah Calfe, the one third part of my real estate, and the other two thirds unto my said wife, so to be divided unto them or their heirs forever, always provided my said wife should hold all during her natural life, without any interruption.”
    In 1711, James King died, leaving his wife Rachel, and his said daughter.
    In 1729, the said daughter Deborah married Caleb Ray.
    
    * In 1731, the mother, Rachel King, conveyed her [ *555 J interest in the premises to the said Caleb Ray and wife.
    In 1732, Caleb Ray and wife conveyed the premises to John 
      
      Hill, who, in two days after, reconveyed them to the said Caled Ray, in fee.
    In 1747, the said Deborah Ray died, leaving three children by her said husband, viz., James, the eldest, and now one of the defendants, George, and William. The two last named are dead; William having left issue now living.
    In 1777, Caleb Ray married his second wife, also named Deborah, the present demandant, and in 1797 he died, leaving her his widow.
    
      James Ray has entered upon the premises, claiming as heir in tail to his mother.
    The question submitted to the Court on these facts is, whether Caleb Ray died seised ■ of such an estate in the premises, as that his widow, the present demandant, is entitled to her dower therein.
    The Attorney-General, Sullivan, for the defendants.
    The intention of thei devisor is to govern ; but this intention is to be collected from the will, according to the established rules of law. Co. Lit. 20. 1 Cro. 525. Vide Readings on the Statute of Wills, 3 Inst.
    Under the devise in the will of James King, Deborah, the daughter, took either an absolute unconditional fee, or an estate for life, or an estate in tail.
    If she had a fee, it must have arisen from the devise being an executory devise. As, on the principles of executory devises, the fee must descend to the heir, to be defeated on a certain condition being performed, or must be vested by the devise in a devisee, to be defeated on a subsequent event, we may inquire where the fee of this estate was on the death of the devisor.
    There was an estate for life first carved out for Rachel, the widow of the devisor; then the residue is given to Deborah, [ * 556 ] the * daughter, and her heirs forever. This would have been a fee simple, were it not for a restrictive clause — “ but if my daughter should happen to die before she come of age, or have lawful heir of her body begotten,” then it is devised over to the wife and sister, and to their heirs forever. The intention of the.testator is obvious here. Before the daughter came of age she could not convey; and, if she had a child, he intended that she should not convey, but that it should in all events go to her child. Had she died under age, and without issue, the estate would have been takén by her mother and aunt, under the will, as purchasers, and not by inheritance. Deborah, the daughter, had therefore a fee tail in the estate, with a remainder vested in her mother and aunt, expectant on her dying without an heir of her body; but should she have issue, that issue would succeed, by inheritance, to the estate.
    
      Unless this was an executory devise, it was an estate tail. The nature of executory devises is explained in Scatterwood vs. Edge, 1 Salk. 229. It is commonly rested on a term for years, the' fee remaining in the heir until the condition of the devise is executed. Thus A devises for a term of years to B, and the residue to C, provided h.e shall then be alive, shall go to London, marry such a woman, &c.
    Lord Coke tells us, 1 Inst. 20, that an estate tail is a cut or restrained fee. If this estate was ever vested in Deborah, the daughter, as an absolute, unrestrained fee, it was done presently by the will, or on some subsequent event. If she had any estate at' all by the will, on the death of the devisor, it was a restrained fee. The mother had the freehold; the daughter only a remainder, expectant on the death of the mother, but vested on the death of the devisor.
    The devise is express that, if she should die before she was of age, or had an heir of her body, the estate should go to her mother and aunt. Here was a restraint on the fee — for, if she died without lawful heir of her body, the estate was devised over. The expression is, “if she die before she come of age, or have heir of her body.” The word heir is not synonymous with the word child. No man living has heirs. If she had never * so [ * 557 ] many children, they were not heirs whilst she lived. Therefore the testator intended that, if the remainder to the mother and aunt should be defeated, this should be effected by the estate’s descending to the heirs of the daughter in a lineal descent, counting from her as the purchaser. This is clearly a restrained fee in her.
    Had she died before she came of age, leaving issue, her heirs would have taken the estate. Had she died after she came of age, the same effect, and no other, would have been produced. Had she survived her mother and aunt, and died without leaving issue, the next heir of her mother and aunt would have taken the remainder as heirs to them, they having had the remainder contingent by purchase under the devise.
    The testator could not intend that, if his daughter died before she came of age, and left issue, such issue should not inherit. The word or must therefore have a conjunctive meaning, and be read as and. If she had an heir of her body, that is, if she died leaving a child, the remainder in the mother and aunt was subverted ; and that child could not come in by purchase, because he was not in esse when the devise took effect. He must therefore come in a° heir to his mother, and could take no more from her than she ban to leave him, viz., a restrained fee.
    
    
      The devisor’s intention is obvious, that the estate should not go to the next of kin by the civil law, but to the heir by the common law. Nay, further, it was so restrained, that it could not go to the collateral heirs of the daughter, or ascend to her mother, as her representative. This was, then, if a fee at all, a restrained fee; and the highest estate she could possibly have was an estate tail.
    In Wood vs. Ingersoll, Cro. Jac. 260, —a devise to three brothers, and if either died without issue, the other to be his heir, —this was adjudged an estate tail.
    This is like the case of Noyes vs. Noyes, in Middlesex, 1796, —a devise to three sons, and if either of them died without [ * 558 ] issue, * the others to be his heirs. One died, leaving his wife enceinte. The child was born alive, and died. The mother claimed as next of kin, on the doctrine of executory devises, and urged the case of Pells vs. Brown, Cro. Jac. 590, but the court decided it to be an estate tail,  This was a much stronger case than the one now in argument. The three candles were all burning at the same time, and the event must happen, at the farthest, within two lives. But the mode of expression, “ if either die without issue, then the other to be his heir,” clearly showed the intent of the testator, that the estate, on the casualty which actually happened, should not go out of his family. It is quite as obvious, in the case under consideration, that the intention of the testator was to have the estate descend to the heirs of the daughter under restraints incompatible with a fee simple in the daughter. Vide Badger vs. Lloyd, 1 Lord Raym. 523, Nottingham vs. Jennings, 1 Lord Raym. 568, Aumble vs. Jones, 1 Salk. 238. In this last case it was adjudged as a fee because the restrictive words, heirs of her body, were omitted. But they are strongly used in the case at bar.
    In Goodright vs. Cornish, 1 Lord Raym. 3, a devise to John, his son, for 50 years, remainder to the heirs male of his body, Was adjudged to be a contingent remainder, and as such was void, for want of a freehold to rest it upon. But in our case there is a freehold to support the remainder. Vide Moore vs. Parker, 1 Lord Raym. 37. — Luddington vs. Kime, ibid. 206. — Goodright vs. Pullyn & Al. 2 Lord Raym. 1437.
    The case of Pells vs. Brown, Cro. Jac. 590, differs from this at bar. There was money to pay, by way of condition ; here there is none. If the devisee died without issue, living W., then W. was to have the estate; but in our case it could make no difference whether Deborah, the daughter, died before or after her mother and aunt. If she died without lawful heir of her body, the estate went to them, if they «were living, and, if they were dead, to their heirs ; because they died seised of a contingent remainder, expectant on the death of Deborah without heirs of her body.
    * The case of Webb vs. Hearing, Cro. Jac. 415, is [ *559 ] strongly in point against the demandant. Vide, also, Soulle vs. Gerrard, Cro. Eliz. 525. — Comb. 252, Reeve vs. Long. — 3 Keb. 29, Goodright, ex dim. Larmer, vs. Searle & Ux. 2 Wils. 29. — Driver vs. Strandring, 2 Wils. 88.
    The estates known in our law, viz., terms for years, freehold, fee tail general and special, and fee simple, may be variously modified by conditions and contingencies, but still their natures are not changed. The statute De Donis prevents the creating such a contingency as will revive the old common-law fee simple conditional estates.
    
    In the case now before us, the whole estate of James King was disposed of by his will, and none of it descended to his heir. The wife had the freehold ; the daughter had all the rest and residue. This must have been a fee tail or a fee simple. No less estate could be rested, on a freehold. She took presently on the death of the devisor; and there was no contingency, on which her right vested. The mother and aunt took an estate in remainder, contingent on the death of the daughter without an heir of her body. This could not be an estate accruing on an executory devise, because it depended on too remote a contingency for such a gift. If Deborah, the daughter, died ever so early, yet if she left issue, the mother and aunt could not take the estate, whilst that issue, or the issue of that issue, lived. If the mother and aunt had died before the daughter, and she had afterwards died, without leaving issue, the estate, would not have gone to her next of kin, but to the legal heirs of the mother and aunt.
    There is therefore no pretence for saying that these candles were, m any sense, burning at the same time, which is an essential principle in an executory devise. And nothing could have probably happened which could have brought the event within a reasonable term of time.
    There are in Leonard, and some other books, cases where estates, being devised on condition of paying money, have been construed to be executory devises. But these cases do not apply to the one now before the Court.
    
      *J. Davis, 
      
       of counsel for the demandant,
    con- [ *560 ] tended that the daughter of J. King, under the devise above recited, took not an estate tail, as was held by the counsel for the defendants, but an estate in fee simple, defeasible upon a contingency, and subject to a conditional limitation to her mother and aunt; that the contingency, on which the estate was limited over to the mother and aunt, was conformable to the restrictions prescribed by the law for the substitution of a fee upon afee; and that the limitation over .to the mother and aunt was not by way of remainder, as it must be if the daughter took an estate tail, but that it was good as an executory devise. It is a rule of law, that words which show an intent that the devisee shall have a greater estate than for life, and do not limit an estate tail, make a fee. 3 Com. Dig. 422, tit. Devise.
    
    The first words in the devise to the daughter, “ unto my daughter and her heirs forever,” clearly carry a fee. It is agreed, however, that these words may be restrained or controlled by subsequent words, so as to make that a devise in tail, which otherwise would pass a fee. Thus, if the devise had been to the daughter and her heirs forever, and if she die without issue, to the mother, &c., it is conceded that it would have been an estate tail in the daughter, with remainder to the mother, &c. Such a limitation, being after an indefinite failure of issue, cannot operate by way of executory devise ; because the contingency is too remote, and might tend to a perpetuity, an executory devise not being liable to be prevented or destroyed by any alteration in the estate out of which, or after which, it is limited. 2 Fearne, 51. — Eq. Abr. 188. But if the dying without issue, or other contingency annexed to the estate of a devisee, may, by the terms of its creation, happen within the compass of a life or lives in being, and 21 years after, the limitation over is good by way of executory devise. Pells vs. Brown, Cro. Jac. 590. — Gulliver vs. Wickett, 1 Wils. 105.— Thurstout vs. Denny, 1 Wils. 270.— Collinson vs. Wright, 1 Sid. 148. — 1 Eq. Abr. 188, cites Rol. Rep. 197, 217, and Palm. 132. —Hinde vs. Lyon, 3 [ * 561 ] Leon, 64.—* Hanbury vs. Cockerill, 1 Rol. Abr. 334, cited in 2 Fearne, 18.—Barker vs. Suretrees, 2 Str. 1175, where is cited the case of Price vs. Hunt. — Pollexf. 645, in which the word or is construed conjunctively. — Porter vs. Bradley, 3 Term Rep. 143. — Powell on Devises, 252. — Hargr. Tracts, 518.
    The rules and principles contained in the authorities now cited apply strongly to the devise in question. Having regard to the distinction by which the cases above cited were ruled, it remains to inquire whether, in the will of James King, the limitation over to the mother and aunt was dependent on a general and indefinite failure of issue of the daughter ; or whether it was on a failure of issue within the limits and the period required, by law, in the limitation of an estate by executory devise. On the determination of this question, it is apprehended, the decision of the main question will depend, viz., whether the daughter liad a fee simple or a fee tail.
    The words are, “ in case my daughter should happen to die before she come of age, or have lawful heir of her body, then,” &,c. How are these words to be understood? If a strict grammatical construction be adhered to, it is conceived, the estate would go to the mother and aunt, upon the daughter’s having lawful heir of her body. This is clearly not the meaning of the testator. Both parties will agree, therefore, that it shall be read as if the word before was repeated after the word or. It is conceived, also, that the word or must be construed conjunctively. Otherwise, if the daughter had issue, and died before she attained the age of 21 years, the estate must have gone from the child to the mother and aunt. This certainly could not have been the intention of the testator. It is contended therefore that the devise, rightly construed, would read thus, “ unto my daughter and her heirs forever; but in case my daughter should happen to die before she come to age, and before she have lawful issue of her body begotten, then,” &e.
    It is conceded indeed by the Attorney-General, in his argument for the defendants, that or should be read as and, to avoid the ab surd supposition that the testator could intend to disinherit a child, who might be born to his daughter, in case of her * dying before 21 years of age. To support such a [ * 662 ] reading, there are also many authorities. Barker vs. Suretrees, above cited, is in point. — See, also, Read vs. Snell, 2 Atkins, 642.
    If this be the true construction of the devise, then the contingency is clearly within the limits above required; for it must have been determined on her arrival at the age of 21. If she had died after 21, without issue or never having had issue, the mother and aunt could not have claimed the estate ; because, to entitle them, (supposing or to be understood conjunctively,) she must have died without issue and before 21 years of age. If this construction be the correct one, this was then a good executory devise, upon the authority of Collinson vs. Wright, Barker vs. Suretrees, 1 Eq. Abr. 188, &c. And the fee simple is complete on having issue, or attaining the age of 21 —both of which happened in the present case.
    2. But if we admit that or shall not be understood conjunctively, but strictly as it is expressed, it is material to inquire what is the import of the expression, “if she die before she have lawful heir of her body begotten.'” It is humbly presumed that the meaning cannot be a general and indefinite failure of issue; or, as Hargrave expresses it, “ a failure of issue whensoever it may happen, be the time of the event ever so remote; ” but is equivalent to saying, “ if she die without having had, issue.” This is a contingency, therefore, which must be determined at the time of her death. It is not more indefinite or extensive than the words “dying without leaving issue at the time of his death,” or “ without leaving issue behind him; ” which are contingencies within the legal limits of executory devises, as appears by the case of Porter vs. Bradley, and several other cases.
    3. Taking the whole devise together, the testator may be understood to mean a dying without issue, living his wife. This was collected, in Porter and Bradley's case, from - the general tenor of the will, and was not so expressed. It is so in several other cases, -t may be inferred that the testator meant, in the present devise, a dying without issue, living his wife, from his express provision that, notwithstanding the devise of a portion to his sister, his [ * 503 ] wife should enjoy the whole during her life. * This provision tends to prove that he did not, by the expression, contemplate or look forward to a general or indefinite failure of issue. If this idea be correct, then the devise is similar tc that in the case of Pells vs. Brown, and is good as an executory devise.
    It appears, then, that —
    1. The first part of the devise to the daughter is a devise in fee simple.
    2. Or should be construed as and; in which case the contin gency would be determined on the daughter’s arriving at the age of 21 years, or having issue.
    3. If not so construed, the devise can at most import a dying without having had issue, which must be determined at her death.
    4. There are strong indications that the testator contemplated a failure of issue, or not having issue, during the life of his wife.
    
    By either of the constructions which we have given, the contingency is within the limits required by law for executory devises; and the estate in fee simple, upon the authorities which have been cited, is not defeated or abridged unless the contingency happen.
    
      
      
         By the kindness of the Hon. Thomas Dawes, Jr., who was one of the justices of this Court dun ug the .pendency of this cause, I was favored with a manuscript note of the arguments of the counsel on either side, and with the decision of the Court.
    
    
      
       This is the action on which arose the case in error, of Richardson & Ux. vs Noyes, reported above, page 56, where the first judgment is reversed.—Reporter [See note at the end of the report of this case.]
    
    
      
      
         Now District Judo-e of the United States’ Court for the Disti'ot of Massachusetts
      
    
   The Court,

—viz., Dana, C. J., Paine, Bradbury, Cushing, ana Dawes, Justices, were unanimously of opinion that the daughter of James King took an estate in fee simple, defeasible upon a contingency seasonably determinable; that the conveyances through Hill were therefore valid; that Caleb Ray died seised of the land, and that the present action for dower is maintained. 
      
      
         Vide Annable vs. Patch, 3 Pick. 360. — Hawley vs. Northampton, 6 Mass. Rep. 1. — Dutton vs. Egan, Cro. Jac. 427. — Hayes on Limitations, pp. 28—46. — Nanfau vs. Legh, 7 Taunt. 85. — Jesson vs. Wright, 2 Bligh, 1. — Sonday’s case, 9 Co. 27. — Doe vs. Harvey, 4 B. & Cr. 610. — 1 Rep. Commissioners on Real Property, 553—560. — Hoxton vs. Archer, 3 G. & J. 199. — Doe, dem. Jones, vs. Davis, 4 B. & Ad. 43, L. J. K. B. 1832, p. 244; and see the very learned opinion of Mr. Justice Story, in Parkman vs. Boudoin, Cir. Court U. S. Dist. Mass., May T. 1833.
      In the case last referred to, there was a devise to A for her life, and at nor death to her second son, B, and to his lawfully begotten children, in fee simple forever, — but in case he should die without children lawfully begotten, to the oldest son of A, (C,) and to his lawfully begotten children, in fee simple forever. At the time of making the will, B had no children. Held, that he took a fee tail, with remainder to C, on an indefinite failure of issue of B. After stating and commenting upon the various points made in the cause, and the facts and authorities bearing upon them, the learned judge sums up the reasons of his decision in the following words . — “ In the present case there is an evident necessity of construing the words “children," &c., to mean issue or heirs of the body, and so words of limitation, and not of purchase, and that the estate of James is a fee tail, and not a fee simple. — First, because the children were not in esse at the time of making the will, and therefore could not take an immediate estate. Secondly, because, otherwise, if children were born and died in the lifetime of James, leaving issue, they would be excluded, whereas the words “fee simple ” show that an interest was intended to the issue. Thirdly, because, if children, in the devise, were to be construed to mean, not the whole class of issue, but strictly children of James, descriptions personarum living at his death, then the devise over would be defeated if James should die leaving children, who should afterwards die without issue, which plainly could not have been intended. Fourthly, because, if the devise over be, as in my judgment it is, upon an indefinite failure of issue, then as an ex-ecutory devise it is too remote and void, but as a remainder after a fee tail it is good. And I would add that it is a clear rule of law, that every limitation is to be construed to take effect by way of remainder, if it may, and not by way of executory devise, unless it be unavoidable, to carry the intention into effect. My judgment is, that the words and the intent of the testatrix manifestly require'the estate of James to be a fee tail, with a remainder to George.”
      
     