
    CHARLES M. ARMSTRONG, WILLIAM L. SALTER AND WIFE ET AL., v. WILLIAM KENT, ANDREW C. ARMSTRONG ET AL.
    1. M. A. devised and bequeathed all the rest and residue of her estate, real personal, or mixed, to E. R. A., to be by her possessed, enjoyed, and occupied to her and her heirs forever ; but if she should die without heirs, and intestate, then that all the estate above devised to her shall vest in her brother, Charles M. Armstrong, and sister, Margaret Salter, and their heirs, to be equally divided between them, share and share alike.
    2. Held, that E. R. A. took an estate in fee simple in the lands, and an absolute property in the personal estate; that the words, “ without heirs and intestate,” imply a power of disposition, and are inconsistent with, and avoid the limitation over. By the Supreme Court.
    The bill, filed July 14th, 1841, states that Mrs„ Margaret Armstrong, late of Elizabethtown, being possessed, as her sole and separate property, free from the control of her husband, Col. William Armstrong, of a certain house, lot and garden in Elizabethtown, which she had purchased of one Andrew Wood-ruff, and which had been conveyed to Peter Kean, since deceased, in trust for her and her heirs, and also possessed of considerable personal estate, consisting of household goods and furniture, stocks in banks and insurance companies, money, and securities for money, and other effects, and of other real and personal estate, and havirg lull power to dispose of the same by will, duly made and published her will, dated September 16th, 1827, executed and attested in such manner as to pass real estate; and thereby, after giving her plate to be equally divided among her four children, gave and devised as follows: “ Item, I give and bequeath the house and lot which I purchased from Andrew Woodruff, situate in Elizabethtown, and which was conveyed by said Woodruff to Peter Kean in trust for me and my heirs, to my beloved husband, William Armstrong, for and during the full and complete term of his natural life, to be used and occupied by him as a residence, together with the use of all the household furniture (plate excepted) now therein contained ; but if my said husband should marry, remove to foreign parts, or elect to break np housekeeping, then my will is that the above devise to him shall become null and void, and that the said house and lot, together with all and singular the household furniture therein, shall become the absolute property of my beloved daughter Eliza Rosetta Armstrong, to be taken and held by her under the like restrictions, limitations and conditions as the property hereinafter bequeathed to her. Item, I give and bequeath to my husband, William Armstrong, to my sons Edward Armstrong and Charles Armstrong, and to my daughter Margaret Salter, a gold ring, to be set with my hair, which rings shall be procured by my executor and executrix hereinafter named, as a slight token of my sincere and lasting affection ; and, while I invoke the blessing of Almighty God upon my aforesaid husband and children, I beg the last to believe that it is a subject of most deep-felt regret to a parent that has ever loved them and watched over them with the fondest affection, that she has it not in her power to provide more amply for them. But, as it has pleased God to place two of them, that is to say, my son Edward and my daughter Margaret, in easy circumstances, and as my beloved son Charles has both the disposition and the ability to provide a decent and respectable maintenance for himself, in his profession, I trust they will all cheerfully acquiesce in this, my last will. Item, I give and bequeath all the rest and residue of my estate in the State of New York and New Jersey, or wherever else situate, whether real, personal, or mixed, together with the reversion and remainder of the house and lot, together with my household furniture heretofore bequeathed to my husband, William Armstrong, during his natural life, or so long as he shall remain unmarried and elect to occupy the same as a residence, to my beloved daughter Eliza Rosetta Armstrong, to be by her possessed, enjoyed, and occupied, to her and her heirs forever, provided, nevertheless, that she shall and do, out of the rents, issues, and profits of the said estate, provide a decent and comfortable maintenance for my faithful and affectionate domestic, Catharine Small, whose long and affectionate services merit and receive my warmest gratitude. But if my said daughter Eliza Rosetta should die without heirs and intestate, then my will is, that all my estate herein above devised to her, shall vest in my son Charles M. Armstrong and my daughter Margaret Salter and their heirs, to be divided between them, share and share alike.” And that the said testatrix thereby nominated and appointed her said son Edward Armstrong and her daughter Eliza Rosetta Armstrong, executor and executrix of her said will.
    That said testatrix died on the 25th of September, 1827, leaving her said husband and her said four children therein named, surviving her. And that the said Edward and Rosetta, or one of them, proved the said will, and assumed the burden of the execution thereof.
    That, after the death of the said testatrix, her said husband continued to reside in the said dwelling-house, and to use and occupy the said house and lot, with all the household furniture, except plate, until his death, which occurred on the 26th of Jan-nary, 1830. That the said Eliza, after the death of the testatrix, continued to reside in the said house with her said father, until his death, and, immediately after his death, she took possession of the said house and lot, and all the household furniture therein, by virtue of her said mother’s will and the said devise and bequest to her therein, and received the rents, issues, and profits thereof; and that the said Eliza sold and disposed of the said household furniture and other personal property of said testatrix, and converted the same, or the most of it, into money, and placed out the moneys arising therefrom, at interest, or purchased stocks therewith, or otherwise invested the same.
    That, after the death of her father, the said Eliza, under the erroneous impression, as the complainants believe, that the said Eliza was indefeasibly seized, in fee simple, of the said house and lot, and had full power and authority so to do, undertook to sell and convey the said house and lot to her said brother, Edward Armstrong, as the complainants have been informed and believe, for about the consideration of $-, and which said sum was placed out at interest, or stocks purchased therewith, and has been kept out at interest, or otherwise invested, ever since that time, by her, or by her trustee hereinafter named.
    That, shortly after the execution of the conveyance by the said Eliza, for the said house and lot, a marriage being intended to be had and solemnized between Andrew G. Armstrong, Esq., of Sew Orleans, and the said Eliza, a certain. indenture or marriage contract or settlement was duly made and executed, dated November 5th, 1838, between the said Eliza, party of the first part; the said Andrew C. Armstrong, of the second part, and William Kent, Esq., of the city of New York, of the third part, reciting that the said Eliza was possessed of and entitled to certain personal estate, viz., a certain bond of Samuel Bo Ruggies, for $2000, with an accompanying mortgage, said bond bearing date November 1st, 1836, and a bond of Thomas A. Emmett, dated December 1st, 1835, secured by a mortgage, for $1400; also to five shares of the capital stock of the Manhattan Co.; also to twelve shares of the capital stock of the president, directors, and company of the State Bank at Elizabeth ; also two shares of the capital stock of the New York Insurance Co; and that a marriage was intended, &e.; and that it was agreed that all the personal property of the said Eliza should be settled as therein provided, by which said indenture, the said Eliza, for the consideration therein mentioned, and with the approbation of the said Andrew, testified by his being a party thereto, granted, bargained, sold, assigned, &c., unto the said William Kent, all and singular the property before mentioned, and all other personal property of the said Eliza, of eveiy kind and description, in trust for the said Eliza, until the said marriage, and from and after the solemnization thereof, to collect and re-invest the same at his discretion, and to vary and transpose the securities therefor as he might think expedient, and, during the joint lives of the said Eliza and Andrew, to hold, convey, and transfer the said property,and pay and apply the interest,dividends,-and income thereof to such person and persons, and for such purposes as the said Eliza should, from time to time, notwithstanding her coverture, by any writing under her hand, direct or appoint, and, in default of such appointment, to apply and pay such interest, dividends, and income into the hands of the said Eliza, for her sole and separate use and benefit, independent of her said intended husband, and without being subject to his debts or control, and, from and after the death of the said Andrew, if the said Eliza should survive him, to convey said property and pay all the interest and income thereof to the said Eliza, absolutely, and free from all trusts. But if the said Eliza should die before the said Andrew, then to convey such property to such person or persons as the said 'Eliza should, by her will or deed, executed in the presence of two or more witnesses, direct and appoint; and in default of such appointment, in trust for the said Andrew, during his natural life, and on his death to hold the said property for, or to convey the same to, such person or persons as, at the time of the death of the said Eliza, should be, according to the laws of the State of New York, her next of kin.
    That the property so conveyed by the said Eliza to the said Win. Kent, Esq., in trust as aforesaid, is the same property, or the avails thereof, which was so given and devised by the testatrix to the said Eliza, and to the complainants Charles and Margaret, if the said Eliza should die without issue and intestate, including the proceeds of the sale of the said personal property, and of the said house and lot,.
    That the marriage between the said Andrew and the said Eliza was solemnized and had soon after the execution of the said marriage settlement; and that the said William Kent took, or received into his possession, all and singular the said trust property ho conveyed to him in trust as aforesaid, and has ever since received the interest, profits and income thereof.
    That the said Eliza died November 27th, 1839, without heirs of her body, or issue, intestate ; and that, thereupon, the limitation over to the complainants Citarles and Margaret, in the will of their said mother, took effect, and they became entitled, as tenants in common, to all the estate and property in and by the said will devised and given to the said Eliza, as aforesaid, as the same, in and by the said will, is giveji and devised to the said complainants and their heirs, to be equally divided between them in the event which has happened, the said Eliza having died without heirs of her body, and intestate.
    That the said Edward Armstrong, after the said conveyance of the said house and premises by the said Eliza to him, but at which particular time the complainants know not, sold and conveyed the same to one James Nuttman, who is now in possession thereof under his said pretended purchase.
    That the said Peter Kean, to whom and to whose heirs the said house and lot were conveyed as aforesaid, died in the year 1828, leaving John Kean, Julia Kean, now the wife of Hamilton Fish, and Christine, his children and heirs-at-law; and that, on the death of the said Peter Kean, the legal estate in the said house and lot, so held by him in trust as aforesaid, descended to the said John, Julia and Christine, as his heirs-at-law, who thereby became trustees of the said premises for the said Margaret Armstrong, during her life, and after her death, in trust for the complainants Charles and Margaret; and that the legal title to the said premises is now vested in the said John, Julia and Christine, for the complainants Charles and Margaret. That the said Christine is a minor, and therefore cannot join the other heirs-at-law in conveying the legal title of the said house and lot to the complainants Charles and Margaret, without the direction of a court of equity j and that the said John, Kean, Hamilton Fish, and Julia, his wife, and Christine Kean, decline to act in the said trust, and refuse to assert the rights of the complainants Charles and Margaret to the said house and lot, by bringing an action of trespass and ejectment to recover the possession thereof, or to join the complainants in this suit.
    That by a marriage contract made by and between the complainant Margaret and the complainant William L. Salter, before their intermarriage, dated July 26th, 1824, all the property therein mentioned as belonging to the complainant Margaret was conveyed to the said Peter Kean, in trust for the complainant Margaret, as therein mentioned ; and all the property which she might or should acquire was thereby secured to her for her sole and separate use; and by the said marriage contract it was further agreed and provided that, in case the said Peter Kean should die during the said coverture, the said Margaret might choose any other person as trustee, to manage the said trust property according to the terms of the said trust, free from any control of the complainant William L. Salter. And that, after the death of the said Peter Kean, to wit, on or about November 29th, 1830, the complainant Margaret did, by a writing under her hand and seal, of that date, choose and appoint the complainant George Elliott as her trustee, in the place of the said Peter Kean, deceased.
    The bill prays that the equitable rights of the complainants Charles and Margaret under the will of their said mother may be ascertained and finally decided, and that the rights of the said complainants to the said house and lot may be established, and the sale and conveyance thereof by the said Eliza set aside or declared null and void, and that the said John Kean, Hamilton Fish, and Julia, his wife, and Christine Keen, may be decreed to convey the legal title to the said house and premises to the complainants Charles and Margaret, and that the possession of the said house and premises may be delivered to them, and that an account may be decreed and directed to be taken of the rents and profits thereof since the death of the said Eliza, to be paid to the complainants Charles and Margaret, by the defendants, or some or one of them ; and that an account may be taken by and under the decree and direction of the court, of all the rest and residue of the estate of the said testatrix, except the plate and specific legacies, which is given to the complainants Charles and Margaret, in the event, which has happened, of the death of the said Eliza without heirs of her body, and intestate, and of the sales and investments thereof, and of the part or amount thereof granted, assigned, and transferred to the said William Kent, in trust as aforesaid, by the said marriage agreement, and of the investments made thereof by him, and of what he has received for the interest, dividends, and income thereof since the death of the said Eliza, and that he may be decreed to pay or deliver the same to the complainant Charles, and the complainant Margaret, or her said trustee; and for further relief.
    William Kent put in his several answer.
    He admits the will. He says that on or about the 1st of April, 1830, Eliza sold and conveyed the house and lot to one Andrew Thompson, in fee simple, for $2500. That the same was afterwards sold and conveyed to Edward Armstrong, by auditors appointed by the Court of Common Pleas of the borough of Elizabeth under an attachment issued out of that court against the said Thompson as a non-resident debtor. That lie has no knowledge, information, or belief that the said Eliza ever undertook to sell and convey the said house and lot to the said Edward Armstrong. That it may be true that the said Eliza also sold and disposed of the household furniture and other personal property given to her by the said will, and placed at interest or invested in stocks, the moneys arising therefrom and from the sale of the said real estate, but that he has no such knowledge or information thereof as will enable him explicitly to admit or deny the same.
    He admits the ante-nuptial contract between Eliza and Andrew C. Armstrong and himself, as trustee, and that he took or received into his possession or control all the property therein mentioned and thereby conveyed to him in trust; and that he has ever since received the interest, dividends, and profits thereof, and paid and applied the same, and every part thereof which accrued during the life of the said Eliza, to such persons and for such purposes as she, by writing under her hand, directed aud appointed, or into her hands for her sole and separate use; and since the death of the said Eliza has paid over the same, or the greater part thereof, to the said Andrew C. Armstrong, her surviving husband, as by the said marriage contract he was directed and required to do. That it may be true thát the said property so conveyed, assigned, and transferred to him by the said marriage contract, in trust aforesaid, is the same property, or the avails thereof, which was given and devised by the said Margaret Armstrong to the said Eliza, by her said will, including the proceeds of the sale of the said personal property and of the said house and lot, but- that he has no such knowledge, information or belief thereof as will enable -him more explicitly or positively to confess or deny the same.
    He admits the death of Eliza, on the 29th of November, 1839, without heirs of her body, and intestate, and that her husband, the said Andrew, survived, and still survives her, but whether, on her death and during the life of said Andrew, the said Charles M. Armstrong and Margeret Salter, under the will of the said Margaret Armstrong, became entitled to the property and estate assigned, transferred, and conveyed to him as aforesaid; or whether, inasmuch as the said Eliza did not make any will or deed directing or appointing to whom this defendant should convey the said property, this defendant is’ bound, by virtue of the said marriage contract, to hold the said property to and for the -use of the said Andrew during his life, is a question of law which lie submits to the decision of the court, declaring himself to be ready and willing to perform such order and decree in the premises as the court shall adjudge to be equitable and just.
    He admits the sale and conveyance of the house and lot by Edward Armstrong to James Nuttman, and that Hartman is ia possession.
    He admits the death of Peter Kean, leaving the children and heirs-at-law mentioned in the bill, one of whom, Christine, is a minor.
    He says that after the decease of the testatrix, Margaret Armstrong, and in August, 1828, the said Margaret Balter and Charles M. Armstrong, and Edward Armstrong, their brother, executed, under their hands and seals, and delivered to the said Eliza B>. Armstrong, a deed poll, which was prepared and designed to be executed also by the said William Armstrong, Sarah, the wife of the said Edward Armstrong, and the said William L. Salter, neither of whom, in fact, ever signed or sealed the same, in and by which said deed the said Margaret Salter, Charles and Edward Armstrong, after reciting, among other things, that the said Margaret Armstrong, the testatrix, made her will, by which, after certain legacies and bequests to persons therein named, and a devise to William Armstrong, during his natural life, of a certain house and lot therein named, on certain conditions, the rest and residue of said estate is given, be° queathcd and devised to the said Eliza JR,. Armstrong, absolutely and to iier heirs forever, as by reference to said will would appear, did, jointly and each of them individually, confirm, establish, ratify and make good the said will and all the provisions thereof; and did also, in consideration of the premises therein recited, and of $1 to them and each of them paid by the said Eliza, assign, transfer, quit claim and set over to the said Eliza, her heirs, executors, administrators and assigns, absolutely and forever, all their right, title, interest, property, estate, claim and demand of, in, to or concerning the estate, real and personal, in possession, reversion, remainder or expectancy, of which the said Margaret Armstrong, during her life, was at any time seized or possessed, interested in or entitled to, (excepting always such property as in and by the will of the said Margaret Armstrong, they or either of them by any legacy or devise were entitled to,) to have and to hold the same unto her the said Eliza, her heirs, executors, administrators and assigns, absolutely and forever.
    He admits that Andrew C. Armstrong claims to be entitled, by virtue of the said marriage agreement, to the interest, dividends and income of all the said trust property, during his natural life; and that he, this defendant, in conformity to the trusts upon which the said property was assigned and conveyed to him, and in the honest belief that he was, both in law and in good conscience, authorized and bound so to do, in October, 1840, paid over to the said Andrew, of the interest, dividends and income which have accrued from the said trust property since the death of the said Eliza, the sum of $306.40.
    Evidence was taken on the part of the complainants, by which it appeared that Eliza R. Armstrong had no property, except what she derived from her mother’s will.
    
      I. W. Scudder, for the complainants.
    He cited 4 Kent’s Com. 533; 7 Bac. Ab. 341; 1 Harr. N. J. Rep. 26 ; Pow. on Dev. 373; 4 Term Rep. 294; 2 Wm. Bl. 1010, 889 ; 2 Halst. Rep, 379; 6 Cruise’s Dig. 148, 404, 5; 2 Bl. Com. 172, 3; Cro. Jac. 590; 4 Wend. 278 ; 11 Johns. Rep. 338 ; 1 Ib. 444, 9; 10 Ib. 382; 20 Ib. 483; 2 Cowen 333; 6 Ib. 180; 6 Johns. Rep. 185; 5 East 501; 7 Cranch 456; 3 Halst. Rep. 29; 2 Mass. Rep. 57; Saxton 315; 11 Pick. 503; Doug. 759; 8 Term Rep. 54, 65 ; Cowper 657; 2 Atk. 241; 8 Cow. 277; 15 Serg. and Rawle 190; 5 Johns. Ch. 346; 1 Gallison 458.
    
      W. Pennington, contra.
    
    He cited 4 Kent’s Com. 264, 275 ; Fitzherb. 314; 1 Jac. and Walk. 154; 5 Mass. Rep. 500 ; 10 Johns. Rep. 19 ; 15 Ib. 169 ; 16 Ib. 537; 7 Term Rep. 276; 4 Ib. 605; 2 Bl. Com. 398; Lovel. on Wills 256; Ward on Leg. 236; Fearn. Ex. Dev. 167; 3 Meriv. 176; 5 John. Rep. 346; 2 Green’s Rep. 174.
   The Chancellob.

Mrs. Margaret Armstrong, being possessed as her sole and separate property, free from the control of her husband, Col. William Armstrong, of a house and lot in Elizabethtown which she had purchased, and which had been conveyed to Peter Kean, since deceased, in trust for her and her heirs, and being also possessed of considerable personal estate, and of other rea! estate, and having full power to dispose of the same by will, made her will, dated September 16th, 1827, and thereby, after giving her plate to be equally divided among her four children, gave and devised as follows : “ Item, I give and bequeath the house and lot in Elizabethtown, which I purchased, &c., and which was conveyed to Peter Kean in trust for me and iny heirs, to my beloved husband, William Armstrong, during the full end and term of his natural life, to be used and occupied by him as a residence, together with the use of all the household furniture, (plate excepted,) now therein contained | but if my said husband should marry, remove to foreign parts, or elect to break up housekeeping, then my will is that the above devise to him shall become null and void, and that the said house and lot, to* gather with all and singular the household furniture therein, shall become the absolute property of my beloved daughter, Eliza Rosetta Armstrong, to be taken and held by her under the like restrictions, limitations and conditions as the property hereinafter bequeathed to junto She then gives to her husband, and to her sous Edward and Charles, and to her married daughter, Margaret Salter, gold rings, to be procured by her executor -and executrix. She then expresses her regret that she has it not in her power to provide more amply for her children, but says that it has pleased God to place two of them, Edward and Margaret, in easy circumstances, and as her beloved son Charles has both the disposition and the ability to provide a decent and respectáble maintenance for himself, in his profession, she trusts they will all cheerfully acquiesce in her will. The will then proceeds as follows: Item, I give and bequeath all the rest and residue of my estate in the Slates of New York and New Jersey, or wherever else situate, whether real, personal or mixed, together with the reversion and remainder of the house and lot, together with my household furniture heretofore bequeathed to my husband during his natural life, or so long as he shall remain unmarried and elect to oecupy the same as a residence, to my beloved daughter Eliza Rosetta Armstrong, to be by her possessed, enjoyed and occupied, ,to her and her heirs forever, provided, nevertheless, that she shall and do, out of the rents, issues and profits of the said estate, provide a comfortable maintenance for my faithful domestic, Catharine Small. But if my said daughter Eliza should die without heirs and intestate, then my will is that all my estate herein above devised to her shall vest in my son, Charles M. Armstrong, and my daughter, Margaret Salter, and their heirs, to be divided between them, share and share alike.” The will then appoints her son Edward and her daughter Eliza executor and executrix thereof.

The testatrix died September 25th, 1827, leaving her said husband and said four children surviving her. The husband continued to reside in the said dwelling-house, and to use and occupy the said house and lot, and the household furniture, (except the plate.) Eliza continued to live with her father until his death, on the 26th January, 1830. Immediately after his death, Eliza took possession of the house and lot and the household furniture. She sold the household furniture and other personal property of the testatrix, and converted it, or the most of it, into money, and placed the moneys arising therefrom at interest, or purchased stocks therewith, or otherwise invested the same, and conveyed the said house and lot for the consideration of $ — ;—, which sum was placed at interest, or invested in stocks, or otherwise, and has been kept at interest or otherwise invested ever since by-her trustee hereinafter named.

Shortly after the execution of the conveyance by thefsaid Eliza of the said house and lot, an ante-nuptial contract was made between the said Eliza and her intended husband, Andrew C. Armstrong, and William Kent, party thereto of the third part, reciting that the said Eliza was possessed of and entitled to certain personal estate, viz., a bond and mortgage for $2000, (describing them,)dated November 1st, 1836; abond'and mortgage for $1400, (describing them,) dated December 1st, 1835, and 17 shares of bank stock, (describing them,) and two shares of insurance stock, (describing them,) and that a marriage was intended, &g., and that it was agreed that all the personal property of the said Eliza should be settled as therein provided; and conveying the said personal property mentioned in the said marriage articles, and all other personal property of the said Eliza, to William Kent, in trust for the said Eliza until the said marriage, and after the marriage to collect and re-in vest the same; and during the joint lives of the said Eliza and Andrew to hold, convey, and transfer the said property, and pay and apply the interest, dividends, and income thereof to such persons and for such purposes as the said Eliza should, from time to time, notwithstanding her coverture, by any writing under her hand direct or appoint; and, in default of such appointment, to apply and pay such interest, dividends, and income into the hands of the said Eliza, for her sole and separate use and benefit, independent of her said intended husband, and without being subject to his debts or control; and, from and after the death of the said Andrew, if the said Eliza should survive him, to convey said property, and pay all the interest and income thereof to the said Eliza, absolutely, and free from all trusts. But if the said Eliza should die before the said Andrew, then to convey such property to such person or persons as she should by will or deed, executed in the presence of two or more witnesses, direct and appoint; and in default of such appointment, in trust for the said Andrew, during his natural life, and on his death to hold the said property for, or to convey the same to such person or persons as, at the time of the death of the said Eliza, should be, according to the laws of the State of New York, the next of kin.

The marriage took place, and the trustee, William Kent, received the property mentioned in the marriage settlement.

Eliza R. Armstrong died November 27th, 1839, without issue, and intestate.

The bill prays that the equitable rights of the complainants Charles M. Armstrong and Margaret Salter, under the will of their said mother, be ascertained and finally settled; that the rights of the said complainants to the said house and lot may beestablislied, and that the sale thereof by the said Eliza may be set aside or declared void; and that the heirs of Peter Kean, deceased, (made parties defendants,) may convey the legal title to the said house and lot to the complainants Charles and Margaret, and that the possession of the said house and premises be delivered to them ; and that an account may be directed to be taken of the rents and profits thereof since the death of the said Eliza, and that they may be paid to the complainants Charles and Margaret, and that an account may be decreed to be taken of all the rest and residue of the estate of the said testatrix, which is given by the said will to the complainants Charles and Margaret, in the event of the death of the said Eliza without heirs and intestate,” and of the sales and investments thereof, and of the part or amount thereof transferred to the said William Kent, in trust as aforesaid, by the said marriage articles, and of the investments made thereof by him, and of what he has received for the interest, dividends and income thereof, since the death of the said Eliza, and that he may be decreed to pay. or deliver the same to the complainants Charles and Margaret.

Andrew C. Armstrong, William Kent, James Nutman, (who claims the house and lot by mesne conveyance thereof from Eliza’s grantee thereof,) and the heirs of Peter Kean, deceased, are made defendants.

Assuming that the bonds and mortgages, stocks, and personal property conveyed by the said marriage settlement to W. Kent, in trust, as therein stated, are the proceeds of the property devised and bequeathed by the will of Margaret Armstrong to Eliza R. Armstrong, in the manner in the said will provided, with the limitation over as also therein provided, the questions presented for consideration are the same as would be presented to a court of law under a will made by one having the legal estate in this real and personal property devising and bequeathing to Eliza R. Armstrong in the manner provided by this will, with the limitation over therein provided.

It is a devise of all the rest and residue of the estate, real, personal, or mixed, to Eliza R. Armstrong, to be by her possessed, enjoyed, and occupied, to her and her heirs forever ; but if she should die without heirs and intestate, then that all the estate above devised to her shall vest in her brother Charles M. Armstrong and sister Margaret Salter and their heirs, to be divided between them, share and share alike.

The questions presented are—

1st. Whether these clauses, taken together, and by force of the words and intestate,” do or do not give to Eliza a fee simple in the lands, and an absolute property in the personal estate, or if not a fee simple in the lands, an absolute property in the personal estate.

2d. If, by force of the words “ and intestate,” neither a fee simple in the lands, nor an absolute property in the personal estate is given, what estate is given to Eliza in the lands ? Is it a fee tail in Eliza, with a contingent remainder over to Charles and Margaret, or is the limitation over to Charles and Margaret an executory devise ? In other words, are the words “ without heirs,” or the words without heirs and intestate,” to be construed to mean an indefinite failure of issue, or only a failure of issue at the time of Eliza’s death ?

3d. If the will be construed to give Eliza an estate tail in the lands, what estate or interest had she.in the personal property ?

4th. If the limitation over be construed to be an executory devise, is (such) a limitation over of personal property on one’s dying without heirs and intestate within the rules of law?

5th. W hat was the effect, in law of the deed from Margaret Salter, Charles M. Armstrong and Edward Armstrong, to Eliza Rosetta Armstrong, referred to in the pleadings, and how does it affect, the trust, to William Kent?

These I conceive to be questions involving rulesof property that should be settled by the law courts, and I shall accordingly direct a case to be made for the opinion of the Supreme Court thereon.

The case was argued before the Supreme Court, and the following is a copy of the opinion certified by the Supreme Court to the Chancellor:

NEW JERSEY SUPREME COURT.

OCTOBER. TERM, 1848.

Between

Charles M. Armstrong, William D.

Salter, and Margaret, his wife, and Geo. T. Elliott, complainants, and

Andrew C. Armstrong, Wm. Kent,

James Nutman, John Kean, Hamilton Fish, and Julia, his wife, and Christine Kean, defendants.

On a ease submit« ted by the Chancellor to the Supreme Court.

I, Henry W. Green, Chief Justice of the Supreme Court, do-certify to his Honor, Oliver S. Halsted, Chancellor of the State of New Jersey, that the questions submitted in the above cause-came on to be heard before the justices of the'Supreme Court, at the July Term of said court, in the presence of the Chief Justice and Justices Nevius and Carpenter, and were then debated by the counsel of the respective parties, and the court took time to consider the same until the present October Term of said court, and I report, as the unanimous opinion of the said court, that Margaret Armstrong, by the will in the said case mentiqned, in the residuary clause thereof, devised to her daughter, Eliza-Rosetta Armstrong, an estate in fee simple in the lands, and bequeathed to her an absolute property in the personal estate therein devised and bequeathed to her ; that the words “ without heirs and intestate,”'in that clause, imply a power of disposition, and is inconsistent with and avoids the limitation overj that so far as the said lands and personal estate were embraced in the property conveyed to William Kent, the same passed under the trusts expressed in the marriage article referred to in the said case. And I further report, as the opinion of the said court, that the deed referred to did not, in the view taken of the case by the court, affect the trust in William Kent.

Dated 10th February, 1849.

HENRY W. GREEN.

The opinion of the Supreme Court will be found at length m Zabriskie’s Sep. 518.

A decree was signed by the Chancellor accordingly.

Reversed, 2 Sal. Ch. 637.  