
    
      Joshua John Ward, ads. Josias G. Waller, and others.
    
    1. Where a testator bequeathed to his son the use of negroes, '•Ho him and the lawful issue of his body forever,” and in a subsequent clause provided that “if any of my children before named should die under age, or without leaving lawful issue of their body, that the legacy bequeathed unto them, and property given to them, be equally divided among my surviving children, under the same restrictions and regulations as are specified in their respective bequests,” it was held that the word or in the subsequent clause must be construed and; and that the legatee having attained the age of twenty-one, his estate became absolute.
    2. Held that the words “to him and the lawful issue of his body forever,” must receive their technical signification.
    3. The word use in the first clause of the will is of no avail in the inquiry whether the generality of the phrase “lawful issue of the body” has been tied up by the subsequent clause. •
    4 This case distinguised from the cases of Henry vs. Means, 2 Hill. Rep. 328, — and Henry óf Talbird vs. Archer, 1 Bail. Eq. 535.
    
      Before Wardlaw, J., at Conwayborough, Fall Term, 1842.
    This was an action of trover, for a slave, brought against Joshua John Ward, defendant, by Josias G. Waller, William W. Waller, Joshua C. Burbage, and Margaret his wife, late Margaret Waller, and Samuel A. Waller, Elizabeth Waller, and Hester Ann Waller, infants, who sued by their next friend Harmon Cox, plaintiffs. The defendant pleaded the general issue, and the statute of limitations. The cause came on for trial before Earle, J., at Fall Term, 1841, when a verdict was rendered for the plaintiffs, for seventeen hundred and twenty dollars; but the defendant having appealed, the verdict was set aside, and a new trial awarded by the Court of Appeals: and at the present term a new trial was accordingly had, of which his Honor, the presiding Judge, has made the following report:
    Trover for a slave called Jack, alias Julius. Suit commenced 16th October, 1840. The plaintiffs are the six children of Samuel Waller, and claim that, by the will of their grand-father, William Waller, (of which see a copy,) all the slaves, and other articles mentioned in the clause wherein Jack is mentioned, vested in Samuel Waller, for life, and, upon his death, passed to the children he left living. William Waller died in February, 1810. Letters testamentary were granted to Samuel Waller, sole qualified executor, 24th March, 1810; and no returns to the ordinary were ever made by him.
    Robert R. Sessions, a son-in-law of William Waller, testified, that he was intimately acquainted with all the affairs of the testator: that the debts of the estate did not exceed two hundred and fifty dollars: that Samuel Waller took to his own use “the remainder of stock,” and sold the “land on Waccamaw River,” for one hundred and fifty-one dollars, and Epraim, for one hundred and fifty dollars, but did not apply them to “debts:” that he took the debts upon himself, and sold Hannah, to pay them: that he gave up the share of Alexander Waller, a minor, and other legacies, without question, as to debts: that he sold Jeffrey to the witness, Gabriel, a son of Hannah, to Carr, and others of the negroes, bequeathed to him, to other persons, but sold no negro besides those bequeathed to him, and Epraim: that between one and two years after William Waller’s death, Samuel Waller bought a tract of land, from Peabody Keyes, at five hundred and fifty-five dollars, and, in payment, gave Jack, then about seventeen years old, at four hundred dollars, and one hundred and fifty-five dollars, in some other form: that two or three years afterwards, the witness saw Jack in General Carr’s possession, and in June, 1828, saw him in possession of the defendant: that the eldest of the plaintiffs was of age in 1833, or 1834, and the next about two years afterwards: and that four hundred dollars was a high price for Jack, and the entire property in him was considered to be sold. It appeared that the land bought from Peabody Keyes, was held by Samuel Waller, until his death, and was sold as part of his estate: that Jack was put to the blacksmith’s trade by General Carr, and afterwards sold to the defendent, who then had no knowledge of the will, or of the plaintiffs, and in whose possession his name was changed to Julius.
    
      COPY OF WILLIAM WALLER'S WILL.
    
      In the name of Go A, Amen. I, William W aller, of Horry district, in the State of South Carolina, planter, being weak and sick in body, but of a sound and disposing tnind and memory, thanks be to God for the same, calling to mind the mortality of my body, and knowing it is appointed for all men once to die, do make and ordain this, my last will and testament, in manner and form following, viz.: First, and principally, I resign my soul to Almighty God, who gave it, hoping at the general resurrection to receive a joyful approbation, through the merits of Jesus Christ; and my body to the earth, to be decently buried in a Christian like manner, at the discretion of my executors, hereinafter named: and my will and request is, that my funeral expenses, and all my just debts, be paid out of my estate, as is herein directed. As for what worldly goods it has pleased God to bless me with, I give and bequeath of, as follows: Item. I give and bequeath unto bit beloved wife, Elizabeth Waller, one negro woman Diana, and her child Mary, with all their future increase, to be at her disposal forever; also, one bay yearling mare, one cow and calf, one ewe and lamb, with their and each of their future increase, to her and her disposal forever; also, the use of one negro girl named Venus, with her increase, during her natural life, and at her death to return to my son Alexander Waller, to him and the lawful issue of his body forever; also, the use of my plantation on which I now live, and tools of every kind; all my household and kitchen furniture, except what is hereinafter bequeathed; also, the stock of hogs known and distinguished by the Kings-own gang, until my son, Alexander Waller, arrives at the full age of twenty-one years, and then to be equally divided betweensmy wife Elizabeth and son Alexander Waller, share andshare alike, to them and their heirs forever. Item. I give for the maintainance and support of my daughter Elizabeth Sessions, and the children she now hath, or may hereafter have, the use of four negroes, viz: Hester, Mary Ann, little Hester, and Moll, with all their future increase, but not subject to the debts of, or liable to be sold, either by her present or future husband, or husbands, for his or their debts; it being my will and intention, for the labor and benefit of the said four negroes, with their future increase, to be applied solely to the support of my said daughter, and the children lawfully begotten of her body, and at her death, the aforesaid four negroes, with their increase, to be equally divided among the children as aforesaid; also, one feather bed, in like manner. Item. I give to my son-in-law, Robert R. Sessions, one dollar, to be paid to him twelve months after my decease, out of my estate. Item. I give and bequeath unto my son, Samuel Waller, the use of six negroes, viz: Hannah, Rachel, Jeffrey, Jack, Peggy, and Daniel, with their future increase; also, one bed and furniture, and one shotgun, now in his possession; to him cmd the lawful issue of his body forever. Item. I give and bequeath unto my son, Samuel Waller, exclusive of what has been already mentioned, the use of two negroes, viz: Sally, and Patty, with their future increase; also, one bay mare, one cow and calf, and one ewe and lamb; to him and the lawful issue of his body forever. Item. It is also my will and desire, that if any of my children before named should die underage, or without leaving lawful issue of their body, that the legacy bequeathed unto them, and property given to them, be equally divided among my surviving children, under the same restrictions and regulations as are specified in their respective bequests. Item. It is my will and desire, that a tract of land on Waecamaw River, all the remainder of my stock of hogs, cattle, and sheep, with a negro boy named Epraim, be sold, either by private or public sale, as my executors think best, to pay all my just debts, except my son Samuel is willing to take the boy Ephraim at a just appraisement, and pay the amount timely to the discharge of my debts, so .that no expenses unnecessarily arise. Lastly, I constitute, nominate, and appoint my friends Richard Green, Senr., William Hemingway, and my son Samuel Waller, executors to this my last will and testament, revoking and disannulling all other will and wills by me heretofore made. In witness whereof, I have hereunto set my hand and seal, January 8th, 1810.
    
      The time of Samuel Waller’s death was not proved; but it appeared, that in May, 1833, tbe plaintiff, Josias G. Waller, demanded Jack from the defendant, who enquired about other negroes, and other purchasers, and said, “as you have demanded from the others, don’t sue me, sue the others, and I will abide the decision of Cox’s case.” The plaintiffs recovered against Cox, and some other purchasers; and afterwards, in July, 1837, Josias G. Waller went again to the defendant, and to his demand of the blacksmith, Jack, the defendant replied, “suppose I have not a negro of that name,” and then said, he had a blacksmith, named Julius, but would not give him up: and being reminded of his former agreement, and told that the plaintiff had recovered against Cox, he said, that if he did not stand a suit, he could not recover against those he bought from. In a subsequent conversation, with another witness, about his agreement to abide the event of Cox’s suit, the defendant said he had since discovered that there was some difference between his case and Cox’s ; that he had bought at public sale, or .some such thing.
    The testimony was, that Jack is a very capable and trusty fellow ; that he is now worth at least one thousand dollars, and his annual hire two hundred dollars; and that, in 1837, he would have sold for one thousand five hundred dollars, or more.
    A motion for nonsuit was made, and overruled.
    I directed the jury, that, as at the time of the sale to Peabody Keyes, Samuel Waller could have made a valid sale of the absolute title to the slave, as executor, but, if the plaintiffs’ construction of the will be correct, he could not have done so as legatee, the act should, by fair presumption, be referred to the character which would sustain it, rather than to that which would defeat it; but that if, by evidence carrying conviction to their minds, the jury liad been satisfied that Samuel Waller had, in fact, assented to his own legacy, and sold as legatee, then the presumption should yield to rebutting proof.
    I considered the testimony before the jury as different from that contained in the report of the former (rial of this case, and I therefore directed the jury that, by the declarations of the defendant, made at the time of the demand, in 1833, the adverse character of his possession was modified, so that, even as to the two elder plaintiffs, the statute of limitations was no bar.
    I told the jury, that they might, in estimating damages, find the highest value at any time from the conversion to the trial, with the annual hire from the conversion; but that they were not bound to do so; that they must give the value, but they might select the lowest value; and that there was a difference in conscience, and good policy, between a conversion knowingly unlawful, and one made with a correct belief of right, so that the same rule should not be applied to both, where room was left for discretion: that the rights of the plaintiffs accrued at the death of Samuel Waller, and to that time, if the defendant then held the negro, the subsequent refusal to deliver on demand, would, by relation back, infer the conversion; but that the jury must, by the evidence, be satisfied of some period, when, after the accrual of the plaintiffs’ rights, the defendant was guilty of a conversion; and, if they should be so, they might give hire from that period, remembering all the circumstances which suggested moderation.
    The jury found for the plaintiffs twenty-five hundred dollars; and the defendant appealed, on the grounds annexed.
    
      Grounds of Appeal.
    
    1. That by the true legal construction of the bequest in the will of William Waller, under which the plaintiffs claim, Samual Waller, their father, acquired an absolute estate on attaining twenty-one years of age, and thereupon, the contingency, upon which the plaintiffs could have acquired a title as purchasers, became impossible.
    
      2. That Samuel Waller having qualified as executor of the will of William Waller, and having sold the slave in dispute to Peabody Keyes, for his full, absolute, value, without reservation of any interest in legatees or others, in remainder, reversion, or otherwise, the sale is binding on the plaintiffs, and on all persons claiming under the testator, William Waller; and if the plaintiffs have a valid claim as legatees, their remedy is against the estate of their father, the executor.
    3. That there was not the slightest evidence of any assent, by the executor, to the imaginary legacy in remainder to the plaintiffs; and such assent was in fact disproved, by their own witnesses: wherefore the right to sue was in Samuel Waller, or his representatives, who are barred by the statute of limitations.
    The defendant also moved for a new trial, on the following grounds:
    1. That for the reasons above stated, the verdict should have been for the" defendant, and that his Honor ought so to have expressly instructed the jury.
    2. That his Honor erred in charging the jury, that although the executor sold the absolute and entire interest in the slave now in dispute, his sale might, nevertheless, be referred to his character of legatee, and was not necessarily to be referred to his authority as executor.
    3. That his Honor further erred in charging, that the operation of the statute of limitations was suspended by the declarations of the defendant,' alledged to have been made, when the demand of the property, on behalf of the plaintiffs, was made upon him: it being respectfully submitted, that although a debt barred by the statute may be a sufficient consideration to support an assumpsit, yet neither declarations, nor promises, can extend the time limited by the statute for bringing actions upon torts ; nor will trover lie upon a promise of any sort.
    4. That the damages are excessive; and that the verdict is, in other respects, against law and the evidence.
    
      Bailey & Hunt, for the motion.
    
      Munro & Harllee, contra.
   Ouria, per

Wardlaw, J.

The conclusion which this Court has attained upon the first ground of the motion for non-suit, renders unnecessary the consideration of any other ground of the appeal.

In a case which arose before the Court of Appeals, then consisting of ten Judges, between these plaintiffs and Alford (involving the construction of the bequest made to Samuel Waller in William Waller’s will, under which the plaintiffs now claim,) it is understood that the attention of the Court was not called to any distinction between that case and the cases of Henry vs. Means, 2 Hill Rep. 328, and Henry and Talbird vs. Archer, 1. Bailey Eq. 535: and it was held that the plaintiffs were entitled to recover. The counsel for the present defendant, not content with the decision of the"same matter in a case to which he was not privy, in the first argument of the present appeal before the law Court of Appeals, by leave of the Court, pressed their views of the distinction between the present case and the two cases above cited with such force, that a re-argument has been had before the Court of Errors.

Both the cases above cited involved the construction of the bequest made in Thomas Bell’s will to his daughter Elizabeth. The bequest w7as to Elizabeth Bell, “to her and the lawful issue of her body foreverand a subsequent clause of the will provided “that if any of my sons or daughters should die without leaving lawful issue of their bodies alive, then their part of lhe< estate to be equally divided amongst my then surviving children.” The limitation over was clearly good, and depended upon the sole contingency of Elizabeth’s death without issue of her body then living. It followed that, if the issue were held to be under the express bequest to them, purchasers after a life estate in Elizabeth, in any event after her death, either the issue as purchasers or the persons provided for in the limitation over, must have taken : so that, under that construction, the limitation over was a conditional substitution or alternation for the bequest to issue. The qualifying terms employed in the clause of limitation over having shewn that the testator there used issue of the body to denote, not an indefinite succession of descendants, but that class of them w7ho at a particular time might exist, there was no reason why, in the preceding clause which contained the direct bequest, he should not have been supposed, by issue of the body without the qualifying terms, to point out the same class; and the supposition once admitted, the identity of time at which, under it, the estate of the issue, or the limitation over, must, one or the other, necessarily take effect, and the dependence thus shown of the latter upon the former, argued such close connexion of the two provisions in the testator’s mind, and so clearly exhibited his intention, that the construction to which the supposition led, was naturally adopted. Therefore, it was held, that the issue living at the death took as purchasers by express bequest to them. It was material that the particular limitation over, which was considered in that case, was good ; inasmuch as that limitation over was in default of issue living, that is, as construed, in default of the issue before mentioned. But if the limitation over had been “in case she marry without consent,” or “in case she die under the age of twenty-one years,” or upon any other contingency, not in itself containing a qualification of the term issue, and necessarily providing an alternation between the issue meant and the executory legatees, there would have been no sufficient restriction of the words issue of the body, and they must have received their technical import, so as to give, if the contingency had not happened, to the first taker, a fee absolute.

In the case now before us, the bequest is of the use of negroes to Samuel Waller, “to him and the tawfal issue of his body forever and a subsequent clause oí the will provides that “if any of my children before named should die under age or without leaving lawful issue of their body, that the legacy bequeathed, unto them and property given to them, be equally divided among my surviving children, under the same restrictions and regulations, as are specified in their re* spective bequests.”

The term use might sometimes afford argument for an intention to give only a life estate, but is of no avail in the inquiry whether the generality of the phrase, lawful issue of the body, has been tied up by the subsequent clause. It may be admitted that the testator did not intend td give to the first taker more than a life estate, and that his desire wTas that the issue should take in indefinite succession; but the law regards such desire as impolitic, and defeats it by considering its expression as equivalent to a gift of the fee to the first taker. That they may take as purchasers, the persons here claiming under the designation of issue, must shew not only that a mere life estate was given to the father, but that the testator has so explained himself as to show that he has not intended to violate the policy of the law by a limitation to issue in indefinite succession.

The phrase “die without leaving laioful issue of their body” used in this will, although not so explicit as the corresponding phrase in Thomas Bell’s will, is enough to restrict to the time of the death the default of issue, and, if unconnected with any other contingency, or other-word of restriction, would of itself make the limitation over good.

The only essential difference, then, between this case and those under Thomas Bell’s will, is, that here the limitation over is to take effect, not as there, upon the sole contingency of death without issue living; and in that event, necessarily, — but, “if he should die under age or without leaving issue of his body” and upon that difference this case must be decided.

If the word or is to retain its proper disjunctive signification, and all the words of the clause are to have effect, then the testator has pointed out two contingencies, upon the happening of either of which, the limitation over shall take effect. Under that construction, if Samuel had died under age, leaving issue living, the testator’s bounty, neglecting the children of Samuel, would have passed to the executory legatees ; so that the latter would have taken, not in substitution and default of children, but in exclusion of them.

If the word or is to be construed as and, then the contingency provided by the testator was the death of Samuel under age and without issue living; so that if he had attained the age of twenty-one, and then died without issue living, the limitation over would not have taken effect. In this view, then, the executory legatees were not alternates, provided to take in lieu and default of issue living at the death, but their right so depended upon such default of issue occuring within a particular time, that death after that time might confer nothing upon them, although no issue was left to exclude them.

It will be seen that under neither of the ordinary constructions of such a contingency, does the limitation over create, as in Bell’s will and in the cases of Lampley vs. Blower, 3. Atk. 396, and Read vs. Snell, 2. Atk. 643, (upon which the above cited cases concerning Bell’s will depended,) a necessary alternation between the limitation over and the direct gift to the issue as purchasers.

If, to avoid this result, we attempt to give some other construction to the clause containing the limitation over, we must either reject as unmeaning, words in themselves significant, which the testator has introduced, or interpolate efficient words which he has not used. Suppose we read the clause as if written “if he die under age without leaving issue, or die at any time without leaving issue,” we have only added words which signify precisely the same thing that would be more simply and intelligibly expressed by our striking out “under age or,” so as to read “if he should die without leaving lawful issue.” It would be a bold construction which should thus expunge expressions of the testator that of themselves have an obvious and sensible meaning, and that are not by their collocation rendered nonsensical, or even obscure.

If, then, whether or be construed as á disjunctive or as a conjunctive, no necessary alternation between the limitation over and the direct gift to the issue as purchasers, be created, how can the phrase, “leaving no issue of the body,” in the subsequent clause, explain the technical sense of the expression, to him and the laivful issue of his body forever, in the preceding clause 7 Where, upon default of issue living, the limitation over must necessarily take effect, the restraining words in the clause creating the limitation over, may be considered to apply to the preceding clause containing the express bequest to issue, as if the contingency were written, in case of his death without leaving then living such issue as is before mentioned. The word issue would of itself have the same meaning in both clauses, viz: lineal descendants; but as in the latter clause, by a reference to a fixed time, it is made to embrace only the class that then may answer to its meaning, the same reference to timéis construed to apply to the former clause, because the connexion resulting from the one disposition being substituted for the other. But where there may be issue living at the death, and yet the limitation over take effect, or where there may be a death without any issue living, and the limitation over not take effect, there is no such connexion between the two clauses, and dependence of the one upon the other, that we can say the time fixed in the latter for the ascertainment of the persons who may be issue then left, was in contemplation of the testator when in the former he used issue without reference to time.

To illustrate by examples ; (speaking only of personal estate, but using some terms properly applicable only to real estate, which in the present state of our law as to the power of limiting personalty, can hardly be avoided in cases like this relating only to personal estate:) To A. and his issue, unexplained imports an indefinite succession of issue; that is, a fee tail — -by legal effect a fee simple. To A. and his issue, but if he should die without leaving issue living, then over to B., according to Henry and Means gives a life estate to A. with remainder to the issue as purchasers with limitation over to B; because, as B. must necessarily take whensoever A. may die without issue living, B, seems to stand as an alternate for issue living, and- the testator is held in the direct bequest to refpr to the same issue that he afterwards more exactly describes in stating the contingency upon which the limitation to B. shall take effect. But, to A. and his issue, and if he should die under age to B., gives nothing to the issue as purchasers, although the limitation over would be good. To A. and his issue,, and if he should die under age or without leaving issue, to B. or-to A. and. his issue, and if he should die under age and without leaving issue, to B; in: either case, gives nothing to the issue as purchasers ; because, in the former case B. may take if A- should die under age, although he may leave issue, and in the latter case B, may be excluded, although no issue of A. be left, if A. dp not die under age; and therefore, in neither case does it appear that B. and the issue were meant as alternates, and that the same issue described in the clause of limitation over were referred to in the direct bequest.

That by qualifying expressions issue in the latter clause is referred to a particular time, does not of itself make the same reference to time in the use of the word issue in the preceding clause; for it consists as well with the words used, when a testator gives to A. and his issue, and if A. should die without leaving issue living, over to B., to suppose that the testator meant to give to A. and to his issue in indefinite succession, with a limitation over in event of the chance of the succession being rendered impossible by a failure of issue at the death of A. as to suppose that he meant an estate for life to A., with remainder in fee to the issue living at his death, defeasible upon the failure of such issue. The latter supposition has been allowed to prevail, for the reasons, that the alternative disposition, to the issue living at the death of A. or to B. seems to have' been intended by the testator; and that no argument of intention appears to oppose it. It has sometimes been supposed that a further reason is to be found in a fanciful wish in duty which has been imputed to Courts, that leads them in what is supposed to be the course indicated, as far as the law will permit towards accomplishing the intention of the testator, when the law makes the entire intention ineffectual. Under this supposition, it is said, the intention is to give to issue in indefinite succession, but that cannot be effected — therefore, as the nearest approach, the gift shall be to the issue living at the death of the first taker. Upon this ground every bequest of an estate tail in personalty, would, without more, be held an estate for life, with remainder to issue living at the death. But the admission of an intention to give to issue, in indefinite succession, of itself fixes the meaning of the words issue, or issue of the body, or the like, as words of limitation and not of purchase, and so cuts off the issue from all benefit beyond the chance of receiving, by transmission from the parent.

But in the case now before us, there is not only, under either construction of or, a want of that connexion between the interests created by the two clauses of the will which might authorize the restriction of issue in the latter to control its technical sense in the former one, but if or is to be construed as and, then are positive arguments of intention opposed to the views of the present plaintiffs.

One of the two constructions of or is in this will correct, and the other- is not. It will not do to consider or as having a shifting, meaning to he settled by the result, and because Samuel’s death occurred after he was of age and when he had issue living, to say that therefore or shall have its disjunctive signification, — since by this event all the violation of intention, which, in case of his death under age and leaving issue, might have resulted, has been avoided. As Lord Eldon said, in Earl of Radnor vs. Shafton, 11 Ves. Jur. 457, “In trying the meaning of phrases in a will, you may look at all the circumstances in which the Court might have been called upon to determine the meaning of the same phrases, applied to a different state of circumstances.” How would this will have been construed at the time of the testator’s death, looking to what were the circumstances and chances then? The ages of his children were not proved, but from the will itself it appears that his son Alexander, an object of peculiar favour, was at the date of the will (a short time before the testator’s death) under the age of twenty-one. What would have been the rule for Alexander must be applied to Samuel, for the limitation over is in case of the death of “any of my children” “under age or without leaving lawful issue of their body.” A construction which would have stripped Alexander’s children of his whole interest under the will, in case he had died under age leaving children, cannot be presumed to have been intended. It is possible that even in this country, where early marriages are so frequent, the chance of a child’s dying under age yet leaving children may not have been contemplated by the testator, and therefore, contrary to what may be presumed would have been the intention if the chance had been anticipated, it may happen within the meaning he gave the words he used. But if we are not to disregard the sound principles which settled our cases of Bostick vs. Lawtan, 1 Spears, 258, and Scammel vs. Porter, 1 Bail. 427, and the many cases upon which they rest, as well as the authority of the cases themselves, we must hold that in this case or must be understood to mean and.

If this construction be adopted, then it may well be argued, that as the testator intended his son’s estate to be* relieved from defeasibility by reason of the limitation over, when the son attained that age at which he might make dispositions to suit himself, so it was intended that at that age no rights of issue should interfere with his power of free disposition. The son himself, and not his unknown issue, attracted the bounty of the testator. If we look at the whole will — remember that at its date, some (if not all but one) of the children were already of age — observe the term heirs applied to land and issue, everywhere to personalty, except in the bequest to the daughter, where children is skilfully introduced — notice that a gun, beds, and one ewe and lamb are confounded with the negroes in the same bequests and limitations — and apply the terms uthe same restrictions and regulations as are specified in their respective bequests,” to the difference made between the daughter and the sons — it will be difficult to resist the belief that the testator in fact used the words “to him and the lawful issue of his body forever,” in their true technical sense, as words of limitation, so that as each of his sons came to age, the chance upon which his estate might have been defeated should pass away, and he should enjoy the same, with the right to alien or bequeath, or in default thereof to transmit to his issue.

Even in cases where a clear intent to give to the first taker in the first instance only a life estate, is, with circumstances showing the intent of the testator to dispose of his whole interest, followed by an express bequest to the issue, either in indefinite succession, or restricted by reference to a particular time, but without any limitation over —there seems to be usually an actual design in the testator, if the issue that he would provide for should fail, to enlarge the estate of the first taker. The restriction of the first taker’s estate in such cases, is intended for the benefit of issue only, and upon his death without such issue, the intention could probably be effected by vesting the right in his assignee or personal representative. By declaring, then, that in such cases, where the bequest is to the issue in indefinite succession, the first taker shall take a fee simple, — and that where the bequest is to issue restricted, the first taker shall take a fee subject to an executory bequest to such issue, — the law conforms as nearly to the actual intention, as by any practicable disposition of the estate it might do.

Where such bequest is accompanied by a limitation over too remote, the intention to give the whole estate is manifest — the person intended to be benefitted by the limitation over cannot take, and the first taker and issue, as to right, and the presumed intention of the testator, stand as above mentioned where the intention to give the whole interest has been manifested, and no limitation over has been made. And the same observations apply to a case where the intent to give the whole interest is manifest, a limitation over has been made, and the contingency upon which the estate was limited over has not happened, and has been rendered impossible. Such is the case before us, if or be construed as and: the age of twenty-one was attained before death, so that the contingency was rendered impossible — no further limitation over, expressly declared what the testator intended, but his intent to pass his whole interest, manifested by the general scope of his will, shows that he designed no reverter to his estate ; and therefore the direct bequest is left just as if no limitation over had been made. The words “to him and the laivful issue of his body forever" must receive their technical signification, and that, as observed, is as near to the true intent as policy and any practicable rules will permit.

Cases where a restriction used in one clause of a will, have been applied to the term issue used in another clause without restriction, are not to be considered as authority for such application invariably, without consideration of the subject matter, the circumstances, and the consequences. Where a direct bequest to the first taker and his issue living at his death has been made, and a subsequent clause provides a limitation over, in case the first taker die without issue, it is clear that the generality of the phrase, die without issue, receives such restrictive aid from the previous definition of issue, that the limitation, which of itself would have been held too remote, is by such aid made good. But it would not be safe to argue e converso in ail cases, that the indefiniteness of issue in a bequest to the first taker and his issue, is explained by a subsequent limitation over in case he die ivithout leaving issue living. That die without issue means “die and issue should at any time afterwards fail," isa strained construction, made by the law from considerations of policy, and therefore any slight circumstance has sometimes been seized upon to give the words their natural meaning; that is, die, not then having issue: and a previous clear provision for the issue living at the death, without any attempt to limit in indefinite succession, shows that the idea of an indefinite failure was notin the testator’s contemplation, and that therefore the die without issue must mean only to provide against the failure of that class before specially described as objects of intended benefit. But the phrase “to him and the'issue of his body forever,” has naturally and plainly the meaning which the law gives to it — to him and his issue from generation to generation — a meaning which, as before said, the law understands'1 and defeats; and to explain such plain meaning, well fixed technically and vulgarly, requires stronger circumstances than would seem to tie up the generality of the expression, die without issue.

Again, as to a limitation over by way of executory bequest, the inquiry, without regard to the nature of the estate previously given, is, must the contingency happen within the prescribed time? Whereas, the inquiry, concerning the interest directly bequeathed, is, what is the technical meaning of the terms? Or if that meaning is to be disregarded, has the testator clearly explained the sense in which he used the terms? If after a gift to A. and the issue living at his death, the executory bequest be to B. if A. should die under age or without issue, the limitation over will be good. The generality of without issue would be restricted as before explained, to mean without issue then living, and although the contingency would be varied accordingly as we should construe or as or or as and, in either case it would fall within the rule, as it must happen in one case at his death, and in the other when he attained the age of twenty-one. But when we consider the case of a gift to A and his issue and if he should die ivithout leaving issue over, we are called upon to enquire how the technical sense of the direct gift has been explained ; and although wherein the case just propounded, we see that the limitation over is to take effect only in case of death without issue, and in that case whensoever it may happen, we may conclude that the issue which might be alive at the death was intended to be designated in the first gift — such conclusion would not follow in a case where the limitation over was, if he should die under age and viithout leaving issue, where we should see that the limitation over had no necessary connexion with the time of death, but the intention seemed to be that if A. should attain the age of twenty-one, no restriction of his estate should exist by limitation over or otherwise.

It therefore appears to the Court, that the children of Samuel Waller took nothing under the bequest to him, and the motion for nonsuit is accordingly granted.

O’Neall, Evans, Butler and Frost, JJ. With Johnson and Johnston, Chancellors, concurred.

DüNkiN, Ch. having been of counsel for the defendant, did not sit in this case.

Per O’Néall, J.

I think, if the legatee, Samuel, had died under age leaving issue, that the issue in such case would have taken as purchasers ; but having lived beyond that period, his estate became absolute.

Harper, Ch. absent.

Richardson J.,

dissenting. A brief exposition of the will of W. Waller, predicated upon express decisions of our own Courts is offered, in order to shew, that the just and legal construction of his will was made, by the Court of Errors in the case Of J. C. Waller, and others, vs. S. Alford, (Riley’s Ch. cases, 247.) It is high time that the common limitation of a legatee, “to him and his issue forever,” should be understood as Settled in its legal import. The Will of W. Waller was then considered upon the limitation to the legatee, Samuel Waller and his surviving issue, together with, the same question arising out of the will of Thomas Bell, in the cases of Ferrill vs. Talbot, and Henry & Talbot vs. Archer. Waller’s and Bell’s wills Were then considered by the Court as identical in their limitation to the surviving issue; accordingly one decision covered these three cases; two of which arose out of Thus. Bell’s Will; the other on W. Waller’s will. But the adjudged identity of the limitations in the two wills has been opened for further discussion in the present case, in my individual judgment in this particular case, the title made by Samuel Waller, who was both executor of W. Waller, and legatee, secures the title of defendant. And the argument I now offer, is, to point out: that to alter the former construction, must virtually set afloat the principle of construction, supposed to have been permanently decided, not only on Waller’s will, but on Thomas Bell’s; and was intended to constitute a leading case for the construction of all similar bequests of a limilotion to surviving issue, as purchasers, after a general bequest to all issue; and in default of such, over to remaindermen. The will of Wm. Waller, as far as it bears upon the question of the case before us, is as follows: “Item. I give and bequeath unto my beloved wife, Elizabeth Waller, one negro woman Diana, and her child Mary, with all their future increase, to be at her disposal forever; also, one bay yearling mare, one cow and calf, one ewe and lamb, with their*and each of their future increase, to her and her disposal forever; also, the use pf one pegro girl named Venus, with hep increase, during her natural life, and at her death to return to my spp Alex. Waller, to him and the lawful issue of his body fopever; also, the use of my plantation on which I now live, and tools of every kind, all my household and kitchen furniture, except what is hereinafter bequeathed; also, the stock of hogs known and distinguished by the Kingstown gang, until my son Alex. Waller arrives at the full age of 21 years, and then to be equally divided between my wife Elizabeth, and sop Alex. Waller, share and share alike, to them and their heirs forever. Item. I give for the maintainance and support of my daughter Elizabeth Sessions, and the children slip ppw hath, or may hereafter have, the use of four negroes, viz; Hester, Mary Apn, little Hester, and Moll, with all their future increase, but not subject to the debts of, or liable to be sold, either by her present or future husband, pp husbands, for his or their debts; it being my will and intention, fop the labor and benefit of the spid four negroes, with theip future increase, to be applied solely to the support of my said daughter, and the children lawfully begotten of her body, and at her death, the aforesaid four negroes, with their increase, to be equally divided among the phildren as aforesaid; also, one feather bed, in like manner. Item. I give to my son-in-law, Robert R. Sessions, one dollar, to be paid to him 12 months after my decease, out of my estate. Mem. I give and bequeath unto my son Samuel Waller, the use of six negroes, viz: Hannah, Rachel, Jeffrey, Jack, Peggy,'and Daniel, with their future increase; also, one bed and furniture, and one shot gun, now in his possession; to him and the lawful issue of his body forever. Mem. I give and bequeath to my son Alex. Waller, exclusive of what has been already mentioned, the use of two negroes, viz: Sally, and Patty, with their future increase; also, one bay mare, one cow and calf, and one ewe and lamb; to him and the lawful issue of his body forever. Mem. It is also my will and desire, that if any of my children before named should die under age, or without leaving lawful issue of their body, that the legacy bequeathed unto them, and property given to them, be equally divided among my surviving children, urtder the same restrictions and regulations as are specified in their respective bequests.” Any one who reads this will may observe: that wherever W. Waller intends to bequeath a life estate only, or a less estate than for life, he does it uniformly in the same terms; — see five instances, — “the use of one negro girl to — ” (fee.; “the use of my plantation to — ” (fee.; “the use of four negroes,” (6c.; “the use of six negroes to — ” (fee.; and “the use of four negroes to — ” (6c. (fee. In all other bequests he gives the thing, not the mere use; and uses terms to shew an extension of the estate — “forever,” (fee.

We have to consider the third of these bequests. The question is this: does the bequest of “the use of six negroes to Samuel Waller and the lawful issue of his body forever,” but, “if he should die under age, or without leaving issue of his body” — then over to his surviving brothers and sisters. Does such a bequest — first to issue generally, but explained to mean surviving issue — constitute an estate forever in Samuel Waller upon his coming of full age, in virtue of the words “if he should die under age,” so as to defeat the surviving issue, if any, and also the surviving brothers and sisters whose, right, according to the former decision, was fully recognized as remaindermen. IfSam’l. Waller got an indefeasible title at full age, then, of course, the defendant’s (Ward’s) title is good; and any surviving issue, as well as the remaindermen, could have no title. Such is the consequence of the construction now proposed.

On the other hand — supposing the words “if he should die under age” to make no difference in the estate given to Samuel Waller, and then to the surviving issue. In that case, the former construction of W. Waller’s will remains unaltered; and the negro Jack belongs to the plaintiffs, who are the remaindermen, beqause there were no surviving issue of Samuel Waller, the first taker. My position is, that the words “if they should die under age, or without leaving lawful issue of their body,” meant as formerly decided — that is, the same as if the words were “if they should die under age;” or die (¿. e. at any time) without leaving lawful issue of their body. It is always to be borne in mind that it is a case for judicial construction; and any construction that goes to defeat the surviving issue, puts at naught and excludes from the will the general bequest in favor of issue; and, so doing, overthrows the entire rationale of the former decision upon both Bell’s and Waller’s will, also. That leading decision turns upon this judicial construction of words, to wit: That the bequest to Elizabeth Bell, “to her and the lawful issue of her body forever,” constitute an intended bequest — intended by the testator to her particular issue; and not merely an estate to herself, the first taker, forever. And that testatorial meaning governs all the inferences that subsequently follow. It makes such inferences to turn in favor of the surviving issue; because the issue were the favored object of the testator, in the first instance; and the whole object of the antagonist argument is to overthrow that construction of the terms “issue of the body forever,” and to substitute in its stead this meaning: that those words which would make a perpetuity, do no more than give to the first taker an estate forever, and have little or no influence in the construction of the subsequent charge referring to surviving issue only. Now, any one who will carefully consider the very imposing, yet erroneous decision in the case of Carr and Green, 2 McC. 75., upon Wm.. Wilson’s will, giving the estate to W. and T. Wilson, but not to their laioful issue forever, will perceive that if those very words of perpetuity to issue had been added to the bequest to W. and T. Wilson, the construction of the Court would not have been stronger in favor of their surviving issue. But this was the error of that decision; and that error is corrected in Carr vs. Porter. Shall that error, then, not be renounced 1 And any one who will read the decision of the Court by Judge Nott, in the case of Carr & Porter, (1 McCord Ch. 65,) correcting the former decision, or that of Judge Harper upon both Thomas Bell’s will, and this very will of Wm. Waller, (Riley’s Ch. Ca. 247,) will readily see the very important difference such bequest to issue would make; and it is only by losing sight of the governing influence of the bequest “to him and the lawful issue of his body forever” in Waller’s will, that renders doubtful the unskilful attempt to express in a subsequent clause the testator’s intended limitation to surviving issue, instead of issue generally. Here, I ask — -if two general rules for expounding such limitations to issue, are not plainly established by the two cases before noted, to govern and keep uniform future decisions upon the like limitations 'l What are those rules'? First. That the words “to him and the lawful issue of his body” do mean that the testator desires and wills an independent estate to the issue. Although such words do also indicate an unlawful perpetuity, i. e. we must observe in those words, as well as the individual will of the testator, as the legal perpetuity. Secondly ; and equally manifest, that such individual desire and will being admitted as the foundation principle of construction, then all the mere judicial constructions, inductive conclusions, (fee., such as the word “or” to be changed to the word “and” - — or the like, are to be made only and for no other purpose, but to carry into practical effect such individual will, to the extent that the law permits to such issue ; and never to oppugn the lawful extent of the estate of such issue, by any mere construction in favor of the first taker, as S. Waller. This is the construction I deem mistaken; i. e. by changing ‘or’ into ‘and’ you extend the estate of S. Waller at his age of 21; not in furtherance, as the rule proposes, but in subversion of the estate to the favored surviving issue, as intended and plainly expressed by the testator. There is no general testatorial favor of the like kind expressed towards S. Waller, to authorize, by a mere construction, the extending his bequest; which would be an entire new bequest. And shall we now give him that peculiar advantage? — and that too, after an acquiescence of many years in the opposite construction.

After two cases have been actually adjudged.by the established rule, and after this Court so adjudged the second of these cases ; this was done under assuredly a rational construction, which preserves the life estate of Samuel Waller, but avoids extending his estate by mere construction, in order to uphold the desire and will in favor of at least surviving issue, because of the bequest to all issue in the first instance, which includes the surviving issue, but not S. Waller.

I need not say of such a construction, or rather of so rational a distinciion “ esto perpetua”; but need only ask. Is it palpably erroneous ? If not thus erroneous, preserve it, and let the court be consistent. But to correct it you must first change the principle on which it depends ; I mean the now established construction — that these words “to him and the lawful issue of his body,’* do mean that the testator willed and intended by such words, an estate to the issue, independent of that of the first taker. He desires and wills two distinct estates; although he has expressed the second in the words of a perpetuity. This is the principle and sine qua non of that leading decision. That is, having once got the testator’s moral will, it becomes “ the polar star ” for all constructions upon after limitations to issue. (On this head of intention, see 1 Pr. Wms. 566; Doug. 327 ; 2 Brev. 66 ; 557 Black. 2 Fonb. 56; 3 Burr. 1686, and Melupson, 4 Ves. 329.) How can we bring S. Waller within that favored predicament, when it is expressly confirmed by. the will itself, to the issue. But turn to this subsequent clause, which, as far as issue is concerned, altogether depends upon the former bequest to all issue. We find it as follows : “ If any of my children should die Under age, or without leaving issue of their body,” (fee., then over to surviving brothers and sisters.

Now, then, keeping in mind that there is an intended bequest to issue; which is the index hand that points out the true meaning of this after clause, and makes the gen* eral bequest lawful; and how else can we explain it, but In this toay. If they should die under age, or die (i. e. at any time,) without leáúing lawful issue, then over to his surviving children. This I grant, is no more than one construction against another, but this construction preserves the estate to any surviving issue, which is authorized by the expressed object of the testator, and in case of total failure of such issue, it goes over to surviving brothers and sisters.

This is clearly the meaning of the words, if we respect the general bequest to issue, in the first instance, as a bequest to them, and not as a mere habendum to extend the estate of S. Waller, the first taker. And it is this idea, that a bequest “ to the issue of the body forever ” would constitute a mere habendum to the legacy given to the first taker, that is corrected and decided to be erroneous in the decisions on both Bell’s and Waller’s will. Riley, 247.

It will readily be perceived, that throughout my present argument;, I pre-suppose the understanding of Chancellor Harper’s exposition of Bell’s will, but which is no more than carrying into practice the argument of Judge Nott, in Carr and Porter. But what is the other construction of Wm. Waller’s will 7 It is this. The disjunctive ‘or’is to be turned into the conjunctive ‘ and.’ How? By construction. To what end? Why, in order to make the reading this: “ If they should die under age, and without leaving lawful issue, then over,” <fec. For what purpose ? It is intended ■ for the safety of possible issue before S. Waller’s age of 21. The reason is right. But what follows? Why, the moments. Waller become of age, the estate is fixed in him by mere implication, and then the issue surviving, and the surviving children of the testator, are excluded. Here then is a new bequest to S. Waller, (as in Carr and Green, it was given in the same way to surviving issue by mere construction.) Unless the surviving issue consist of issue begotten by Samuel Waller, during his minority, and then, if S. Waller die under age, such issue are still to take the estate as purchasers. Here is, I grant, a possible boon still preserved for certain particular, and very possible, surviving issue. But if S. Waller once come of age, then no surviving issue whatever can take, because the estate then settles in Samuel Waller forever, at his full age. But what then becomes of the favored and intended independent estate to issue? It vanishes by a mere construction, in their name, but terminates by a new bequest to S. Waller.

The decision now made does not, perhaps, go even thus far in favor of issue left by S. Waller, in case he die under age. But whatever be the decision on that head, my understanding cannot perceive the reason for such inconsistency : and I respectfully urge, that it arises from regarding too little, as a principle of construction, the sound rationale that governed the majority of the Court in its former decision upon this very will, and that of Thomas Bell’s will, and from not carrying out that principle, In a word — Since the decision in the case of Bell’s and Waller’s will, wherever a bequest of personal estate is to ‘him and the lawful issue of his body,’ an independent estate is intended to be given to the issue, somewhat similar to an estate in tail, of lands. But as the law does not indulge a testator in the full éntailment he wishes; yet, we are to carry out his wish and aim, whenever it can be done by any fair construction of his will, to the extent of a life or lives in being and twenty-one years and nine months after; because that extent is lawful. And I have shewn that Wm. Waller’s will fairly admits of the construction formerly put upon it by the Court of Errors; to wit: — 1. To Sami. Waller for life;— 2. To his surviving issue afterwards ; whether he die under or over age. — 3. In default of such issue, over to the surviving children of the testatator : — Which brings the limitation to issue, within the rules of a lawful limitation. This preserves the will of the testator to surviving issue, and follows out our leading decision upon such limitations. For these reasons I adhere to the construction formerly made, and dissent from the present decision, with the observation made upon a similar occasion by Lord Mansfield — “the first aim was the best.” And for a more extended argument upon the great principle I have laid down for expounding similar last wills, I refer to Judge Nott’s decision upon Thomas Wilson’s will, in Carr vs. Porter, overturning Carr and Green; and that of Chancellor Harper’s argument carrying out into practice Judge Nott’s fine illustration of what is and what is not the allowable construction of last wills, where the words require construction: i. e. You must not make a bequest by construction ; which had been done in Carr and (Green’s case: and equally, you must not extend it by construction, against the general desire and object expressed by the testator. For the moral will of the testator, even and although that will appears in the unfortunate words — “to him and the lawful issue of his body forever,” — does yet direct, govern, and lead all mere constructive transpositions of phraseology to the true intent and wish of the testator; so as to uphold such moral will and intent: and for that purpose only, “or” may read “and”; but never to defeat the intentiom Our first aim being then most consistent with the expressed desire, and the wish, of Wm. Waller to favor the issue; and being entirely consistent wfith the long received — -and latterly, the sanctioned construction of W. Waller’s will, is still the best ahd the truest aim.

I do grant that I may be under some error, because I stand alone in this opinion; but, as this very opinion was once right) upon the same principle of judging it, i. e. when a majority stood up to it, I beg to be allowed to conclude by a very brief digest of the whole argument, in order to show in a few Words, — that although the many new lights now introduced, may justify the present change in judgment, the former may still deserve a brief parting valedictory. Its memory can do no harm; and possibly may do good. It may Caution against extending such constructions, to the reversing our best and most essential adjudications on last wills. The whole argument amounts to this —There is an independent estate intended by the testator for all the issue. — Granted.—"The two decisions on Bell’s will make that a fixed principle for the construction of a bequest to issue. But all subsequent intendments and mere constructions are to carry out that independent estate to issue, to the lawful extent of such limitations ; i. e. to a life or lives in being and twenty-one years and nine months after. — Granted again — in virtue of the same decisions. — The result is plain. All mere constructions must be in favor of the issue; and, therefore, never to extend the estate of Sami. Waller, the first taker. And yet, by the merest construction, of turning “or” into “and,” for the sake of the issue, the issue and the remainder lose all chance for any independent estate, the moment Sami. Waller comes of age. This might be done by a testator : but the Court can’t do it by the force and dint of construction. But this constructive “and” for “or” has another striking inconsistency : — the case may happen to-morrow. If Samuel Waller had died under age, leaving a child, that one favored child would have taken the estate as a purchaser; but if Sami. Waller lived to full age, then died and left that child, and many other children, it and all would be disfranchized of their independent estate, so clearly intended by the testator, by the bequest, to all his issue. Now, then, is not the extending the estate of Sami. Waller, a new bequest to him by mfere construction ? — ■ (The very error of Carr and Green.) — Is not this in derogation of, and in face of the independent estate, expressly, not impliedly given to the issue generally ? But Sami. Waller is brought in as if he were one of the issue, to be favored by construction. Again — Is not the only reason for putting the conjunction “and” for “or,” this, — that we may preserve the estate for such issue as S. Waller might possibly leave if he died under age ? It is the only reason that can justify such a. change-. But is not such reasoning a mere fallacy; when we perceive, that it extends the whole estate to Sami. Waller at his full age : and thereby destroys the chance of that very issue and disfranchizes all surviving issue ? Is not, then, the reason for this con* structive introduction of “and” for “or” merely ostensible, and leading us estray? Does it not eventuate in a construction for Sami. Waller’s benefit, instead of the issue ? Would it not .be better for the issue to let the will stand as it is; l e, to let the estate pass to the remainder men, if Sami. Waller died under agepreserving their independent estate if they survived him, after his full age? And yet, the proposed construction is only justified for the furtherance of the bequest to issue — whose estate it destroys!

Ought the Court, then, to adopt this new construction, overturning a former adjudication, that derogated not from the bequest to Sami. Waller ; but avoided extending such bequest for life, to an estate forever.

Where, I ask, are the premises of such a construction ? They are not in the will, where alone they ought to be. The difference is striking. The present construction disfranchises both the surviving issue, and the remaindermen too; whereas the former adjudication upholds, equally, the three classes of persons intended by the testator for his bounty.

For such reasons I still look upon the former adjudication as the truest, wisest and best; and I do fear a virtual, although an unintentional trenching, upon the settled principles upon which alone it was based. But as those principles were not then specifically written out and applied to W. Waller’s will, but to Bell’s will; let this now dissenting opinion, at least, supply that seeming neglect, afford the reasons of the Court, and serve to keep in memory this only safe rule for all mere inductive inferences or constructions of any written instrument — whether it be a legislative Act, as in Adger vs. The Mayor and Aldermen, just decided, and which gives an example of the premises indispensable to mere constructions of Acts, or written instruments. All judicial construction must be based upon premises plainly written in the body of the instrument itself, or its object; otherwise construction may become either a way of thinking for the maker, or the substitution of another instrument for his own. And it is only against such possible abuse of the rule of construction, that I would place a guard over this second adjudication of W. Waller’s will. The fault of which is, that like Carr and. Green, it deduces an additional bequest, where no new bequest is given by the will. But I have already said, that the defendant must still gain his case on quite another ground; and therefore no injustice follows. And my exposition is, for. ulterior and general considerations of uniformity, in all mere considerations of last wills and testaments, and of all written instruments.  