
    William Bramlet et al. vs. Thos. F. Bates et al.
    
    1. Will. Construction. Executory devise. It is a rule of tlie common law, well established, that a limitation of an estate upon the contingency of the first taker dying without issue or heirs, is bad, as being too remote ; because those words have a technical meaning, and per se are taken to indicate an indefinite failure of issue. If these words therefore, stand alone in a will they must be construed in their technical sense ; but the meaning of the testator, with this exception, being a question of intention, the fixed artificial sense of the words referred to will be controlled by any clause or circumstance in the will which goes to show that he meant by the use of them a definite failure of issue, or a failure of "issue at his death, or within a life or lives in being and twenty-one years, and a fraction thereafter. Vide acts of 1852, ch. 91.
    2. Same. Same. Same. Where a testator dying- in 1849, gave his estate to his two sons, J. and T., in equal proportions to them and their heirs forever. creating a limitation in these words : “ if the said J. should die before my son T., and without issue, then the property to go to T. and his heirs forever; ” such a limitation to T. is a good and valid executory devise, and upon the happening of the contingency contemplated, vests the estate in him.
    imoar ovektox.
    Tliis bill was filed in chancery at Livingston by the complainants as heirs at law and distributees of Joseph B. Bates against Thomas F. Bates and others, asking a construction of certain clauses in the will of Joseph Bates, deceased; under which the complainants claimed the proportion of property bequeathed by said will to Joseph B. Bates, deceased: and which the said Thomas F. Bates held and claimed after the de'ath of said Jos. B. Bates, under an executory devise to him in said will, contingent upon tli@ death of said Joseph B. without issue during the life of him the. said Thomas. The several - clauses of the will in controversy are quoted in the opinion. Joseph Bates, sr., died in 1849, Joseph B. Bates in 1851, and this bill was filed on the 22d of March, 1853. At the September Term, 1853, of the chancery court at Livingston, Chancellor Bidley rendered a decree in favor of the respondent, Thomas F. Bates, from which the 'complainants appealed.
    S. TubNey and JoNES, for complainants,
    with whom was Swope, who said:
    In construing this will we shall cite some authorities. It has again and again been mooted in our courts and in all the courts of this country and of England. The decisions are not precisely uniform on the question whether similar words to the above, constitute a good executory devise or not, but the courts of this State have' followed the current of English decisions, which settle it that the words, “ dying without issue,” in. similar bequests, imply an indefinite failure of issue, and that a limitation over, after such failure, is void, because too remote. In Chester vs. Creenway, 5 Humph., 31, this court decides that such a limitation is too remote, and say the question has been so often decided that they think it unnecessary to cite cases. Chancellor Kent has fully examined the authorities, and ably and lengthily discussed this subject in the fourth volume of his Commentaries. At page 2T6 he says the settled English rule of construction is considered to be equally the settled rule of law in this country, but perhaps not quite so stubborn. In this latter remark, however, he is understood to refer only to New York, which is explained by note a to page 279, wliere he says, what is decided a good limitation in New Tort would not be so in Virginia, and that the case of JaoJcson vs. Chew, 12 Wheaton, 153, which went from New York to the Supreme Court of the United States, and was decided in favor of the limitation, because the word “survivor,” and the words of similar import, where used, were decided contrary to the rule of construction, and that it was a step in advance of any case foreign or domestic, except that found in the court (of New York) below. It is not pretended that if the word “ survivor ” had been used the limitation would be void. It is not used, and does not apply. But what is meant is, that wherever the English decisions and rule off construction prevail, the limitation over in cases like the present, has been held too remote, and the estate vested absolutely. Chancellor Kent cites numerous high authorities at p. 277, 4th vol., which must be satisfactory on this point; and he says the decisions have been uniform from the time of the year of books to the preseilt; that the rule had been thought to be created for the purpose of supporting the testator’s intention. But whatever may have been the decisions of other courts, ours has adopted the English rule in its full extent, and by it we are to decide. We think, too, upon the authority of all the books, and especially of Bowmcm vs. Tuolcer, 3 Humph., that by force of the words an absolute estate vested at his death in Joseph B. and his heirs, and that his death could not affect it.
    But it is argued that the words “ die before Thomas F.” in the will, control and limit the legal meaning affixed to the words “ dying without issue,” and for this they rely on the case of Pells vs. Brown when the limitation oyer was upon the ¡death of the first taker without issue, living 'William, and attempt to say that the words “living William” had no more controlling influence over the legal meaning -attached to the words “ dying without issue,” than the words “ die before Thos. E. without issue.” We think that the testator did ‘hot mean a failure of issue in the lifetime of Thomas E., but an indefinite -failure. Had the question been asked, if your son, Joseph B. Bates, 'marries and dies before Thomas F. Bates, and leaves his wife enciente, and a child is born in six months afterwards of the body of the wife of said Joseph B. Bates, who shall inherit this estate you have willed to Joseph B., he would have answered the child of Joseph B., undoubtedly. lie had no such intention as they contend for. It is unnatural to suppose it. There is nothing meant by the word “before.” The testator did not intend to be understood as meaning that Thomas .F. should inherit Joseph B.’s part, if Joseph B. should die without issue in lifetime of Thomas E. And if you decide contrary to the legal meaning of the words “dying without issue,” it must be by some words used by the testator showing that he intended to limit the dying without issue to a life in being, and twenty-one years and a fraction afterwards. Again, what effect can this word “before” have? Suppose that sentence in the will had been written thus: “if the said Joseph B. Bates should die without issue, then the above bequests to. go to Thomas E. and his heirs,” would it not have implied and meant the same as the sentence now in the will? The testator no doubt in this devise, meant to provide that if Joseph B. married and bad children, and bis generation bad not become extinct until Tbomas F. bad been dead fifty years, and bad none but grand children alive, that then the bequests to Joseph B. in the will should go to the heirs of Thomas F. Tie meant, as is evident by the wording of the will, to fetter and lock up his main bulk ox, property for years to come, and this is an intention that the courts have always been trying to prevent.
    But again, we contend that by giving the land, stock, negroes, notes and cash, to Joseph B. and his right and lawful heirs forever, it vested the absolute disposal of-the property, both real and personal, in Joseph B.; and in support of this position, we rely upon 10 Johns. Hep., p. 19, Jaohson ex demise of Brewster vs. Bull; Boolcer vs. Booher, 5 TIumph. Rep., p. 505, where this court, on p. 512, decide Albert Booker had absolute disposal of the property willed him, and cite Jachson vs. Bobins, 16 Johns. Rep. Now, we earnestly contend that this is bound to be so in the case of the cash debts, and cash willed. The testator meant for Joseph B. to have the absolute disposal of them, as he goes on and provides for the collection of the notes of Josiah Morse’s failing. In case of which, he gives the land to Joseph B. Now, he meant that Joseph B. should have the absolute control of the cash and cash debts, stock, &c.; and if so, the limitation over to Thomas F. Bates and his heirs is repugnant to the interest of the first taker, Joseph B., had, and is void. See 3 ITumph., 635. Thompson vs. MoKissach, 2 Merger, 559. 3 Humph. Rep., Bowman vs. Tuoher.
    
    It will be seen that a large portion of the chattels, of all kinds, which testator had at his death, was willed to Joseph B. Now, Joseph B. had been trading upon and using these; chattels one or two years, and must have converted them into other property; and if so, it could not pass by the will._ It would be his own absolute property, (notwithstanding the way in which it was acquired,) as between him and his co-devisees.
    The decree is erroneous. Complainants are entitled to a decree for the property, (especially the personal property,) a,nd ought to have a decree for it. The estate is large, and if the decree is to stand, one of the children will take nearly all the property, and the minors and orphans will be .turned out bare without the means of support. If there be any doubt in the case, it should weigh in favor, of equality and natural justice.
    Our supreme court have said that the same reasons do not exist here for supporting wills that do in England, as in that country the law of descents is unequal and partial; here, equal and just; and that the laws of descents ought to be favored so far as could be done.
    E. L. GaedeNHIKE, for the respondent,
    said:
    Joseph Bates, in his will, made several bequests to his son, Joseph B. Bates, and then adds this clause : “Nevertheless, if the said Joseph B. Bates should die before my son Thomas F. Bates, and without issue, then the above bequest, together with the bequest made to him at the death or marriage of my wife, Polly, are to go to my son Thomas F. Bates,’ and the right and lawful heirs of him, the said Thomas F. Bates, forever.” The question is, do the words import an indefinite failure of issue, or a failure ^f issue at the death of Joseph B. Bates.
    All will agree that the words “die without issue,” as these words are generally understood, mean a failure of issue at the death of the first taker. Men ’ nearly always intend to convey this idea when they use them. We do | not suppose a testator ever meant to convey any other idea by the use of them. Judges, for five hundred and seventy years, with perhaps a single exception, (the Chancellor of New York, in Anderson vs. 'Taokson,) have concurred in opinion that testators uniform^ attach the restricted meaning to the words. All understand them to moan, dying without issue at the deatli of the first taker. Language is used by common consent as signs of our ideas. By common consent these words have the restricted meaning. With a full knowledge of this fact, by a long course of decisions, this language is perverted, and by judicial construction, made to mean an indefinite failure of issue; a thing never thought of by the testator. By this judicial construction, at war with the common understanding of mankind, a testator’s property is often forced into a direction never intended to be given it, and conferred by the courts on those not the objects of his bounty. It is remarkable that this is done in the face of constant professions of anxiety to make the will of the testator effectual. We are told this construction is necessary to prevent perpetuities, that property may answer the exigencies of families, and the necessities of a commercial people. This could be effected by construing them to mean what we all understand by them, because it has often been decided, that if there are any explanatory words, which indicate that the testator meant a dying without issue at the death of the first taker, it is then lawful, and does not injuriously interfere with the exigencies of families, or the demands of commerce. But this is almost the universally acknowledged meaning of these words without explanatory circumstances. Courts, however, have first construed the words to mean something never intended by the testator, and then to relieve themselves of an absurdity of their own creation, they declare the bequest over void, because it tends' to perpetuities. They first make an absurd meaning for the testator, and then, with a powerful stroke of judicial ingenuity, they destroy the monstrous creation of their own brain without a pang of remorse. Under the Roman law the father had unlimited power over the life of his offspring, and it is doubtless upon the authority of that law that they claim the right to destroy their, own bantling. But to be serious, the course of decision upon this subject, is unworthy of the jurisprudence of an enlightened people. Hence, for three hundred years the enlightened judges of England have constantly endeavored to break in upon the old, immemorial construction upon this subject, and to sustain the limitations over as executory devises. The disposition in the United States has been equally strong, and much more effectual than in England. 4 Kent, 278-9. The current of decisions from MtscUola vs. Cornell to the present time, have gone that way.
    And by statute in Virginia, North Carolina, Mississippi and New York, the words “died without issue” are to be construed to refer to tbe death of the first taker. Tennessee, too, by her act of January 26tb, 1852, has done the same thing. In one short section she has brushed away the intolerable nonsense of six centuries. Now, these words are to be construed to mean what we all understand by them. This is indi-, cative of public sentiment in the "United States, and particularly in Tennessee, and would induce us to place as favorable a construction on this will as the authorities will warrant.
    1. This is a good bequest over, because the time within which the contingency was to happen and the property vest, was in the lifetime of Thomas E. Bates. According to all the authorities since the leading case of Pells vs. Brown, the bequest is good. The doctrine of executory devises was slowly and cautiously admitted prior to this case. 4 Kent., 265. But since that case they have been favorites, both in England and America, for the purpose of carrying into effect the will of the testator; for when it was evident that he intended a contingent remainder, and when it could not operate as such by the rules of law, the limitation was then out of indulgence to wills, held good as an executory devise. 4 Kent.., 265. It is.an established rule that an executory devise is good if it must necessarily happen, within a life or lives in being, and twenty-one years and a fraction of another year, allowing for the time of gestation. 2 Bl. Com., p. 115, note. And whether an executory interest is created or not in a will, depends upon the testator’s intention, which will prevail when not inconsistent with the rules of law. 10 Yerger, 31. 2 Yerger, 559. The intention cannot be mistaken. It was to create an execu-tory interest, and the contingency was to happen in the lifetime of Thomas E. Bates. The language is: “Nevertheless, if my said son, Joseph B. Bates, should die before my son, Thomas F. Bates, and without issue, then the above bequests, &c., are to go to my said son, Thomas E. Bates, forever.” The contingency was that Joseph B. Bates was to die before Thomas E. Bates, and without issue, then the bequest was over. This, from the language, was to take effect in the lifetime of Thomas F. The use of the adverb of time, then, shows what the testator meant. Mr. Webster defines them to mean, at that time referring to a' time specified either past or future. The time specified was the time of the death of Joseph B. Bates, before Thomas E., and without issue. At that time the bequest was to go over to him. It is but fair to presume that he meant, by the use of the word then, what it imports. The case is precisely within the principle decided in Pells vs. Brown. In that case, the devise was to A and his heirs forever; but if A died without heirs, living B, then the devise over to B. This was decided to . be a devise in fee to A, the words “ living B ” being sufficient to make the devise over to B good as an executory devise. In that case, the essentials to support an executory devise existed; namely, in defi'nitely limiting the time when the contingency should happen, to-wit: during the life of B. It was on this ground that the decision was made. Hammond, see in Anderson vs. Jacleson, 16 Johns. R., p. 429.
    That devise was held good because it was to take effect in the lifetime of B. In this case it is even inore clear tliat it was to take effect in tlie lifetime of Thomas F. Bates. If J". B. Bates die before Thomas F. Bates, &c., then the bequest is to go to Thomas F. Bates.
    Then, also means soon after, or immediately. If it was to take effect soon after, or immediately, it would be good. In Pi/iíbiwy vs. Elkim,, a testator haying made his will, made his wife executrix, and gaye her all his goods and chattels, provided that if she should die without issue, by him, then after her decease £80 should remain to his brother J. Lord Parker held that the words imported a dying without issue at the death, and the words then after, were construed to mean immediately after. 2 Jarman on Wills, p. 443. In Porter vs. Bradley, “leaving no issue behind him,” was held to be equivalent to “living William” in Pells vs. Brown. Jarman on Wills, p. 432. This case has never been denied to be law, though some of the judges in England have not approved the reasoning upon which it was made.
    New York decisions sustain the, view we take of this case. In Fosdiek vs. Oa/mell, the will was, “ that if any of the testator’s sons should die without heirs male, the land should go to the survivor. The word survivor, gave the words the restrictive meaning. If J. B. Bates die in the lifétime of Thomas F. Bates, as clearly indicate that Thomas F. was to survive, as if the word “survivor” had been used. In the case of Jackson vs. Blanshcm, 3 John. 292, the words were “if any of his children should die before they came to full age, or without lawful issue, then his or their part should be divided among the survivors.” This was held good by way of executory devise. Tu Moffat vs. Strong, the words were, “if any of the sons die without lawful issue, then his part was to go to the survivors.” Survivors here again controls the generality of the expression, because it was the intention of providing for the sons upon the contingency of either dying without issue. In Jackson vs. Stoats, 11 Johns., 33T, the words were, “if any one or more happens to die without heirs, then Iiis or their part to be equally divided amongst the rest of the children.” The court said “ the, plain intent of the testator was, that such parts of his estate as he had specifically devised, both real and personal, should go over to the surviving children, on the contingency stated in the will.” It was likewise Bates’ intention that such parts ,of his property as he had specifically devised, should go to his surviving son on the contingency stated in the will.
    In the great case of Anderson vs. Jackson, 16 Johns., 381, the words were these: “ If either of my said sons should depart this life, without lawful issue, his share or part shall go to the survivor.” This case was elaborately argued, and all the English and American cases were reviewed, and the bequest was held good. “Survivor,” doubtless restricted them to a dying without issue at the death of the first taker. If his share or part was to go to the survivor, of course it must take place in his lifetime, and this is the reasoning upon which the decision is predicated. If J. B. Bates die in the lifetime of Thomas EL, then the bequest was to take effect. This must of necessity take place in his lifetime ; and the reasoning in that case will support the bequest over in this.
    
      "We will now advert to tlie leading cases in Tennessee on this question. In Lewis vs. Olcdborn, the words are: “It is my will, that shall either of my daughters be. dead, or die without issue, that the 'before mentioned lands shall be divided between the surviving ones.” Judge Haywood, says, if we ask what was the meaning of the testator, all mankind will give the same answer. It was, that if one of the four should die without issue living at her death, that the share should go to the survivors. This bequest was held good because it contemplated an act to be done in the lifetime of the survivors. Of course they must be alive, or they could not be said to survive, and the lands could not be divided amongst them after they were dead. “Survivors” has sometimes been held to be synonymous with “ others.” Sir ¥m. Grant, in JBar-low vs. Salter, 17 Ves., 479. 2 Jarman on "Wills, 607. Odie vs. Sewell, lb. 735. To be divided amongst the others would have been sufficiently restrictive. If Jos. B. Bates die before Thomas E. Bates, and without issue, then this bequest shall go to the other. But if there is any ambiguity in this case, if the bequest is to go to Thomas F. Bates, it is rendered certain. “To be divided amongst them,” were thought to be restrictive, because the lands could not be divided amongst them after their death. It contemplated an act to be done in their lifetime, and so is this case. If J. B. Bates was to die before Thomas E. Bates, Thomas E. must necessarily be alive. Speaking of the New York cases to which we have referred, the Court says in this State they ought to be followed, because they are exactly suited to our circumstances, rather than the British decisions, for which there is good reason there, hut none here, owing to the changes made in our law.
    In Williams vs. Twner, 10 Yerger, the restrictive words are more pointed than any we have noticed. If either died, then the executor was to take back the property and divide it amongst the survivors. This would have made a good executory devise of lands, because it plainly contemplated an act to be done in the lifetime -of the parties.
    In the case of Chester et als. vs. Cheer et als., the words are that in case of the death of my daughters without issue, the limitation over was to his sister Elizabeth and her heirs forever. This was held to be a limitation upon an indefinite failure of issue, and void for remoteness. It contemplated no act, to be done in the lifetime of the parties, and it came plainly within the English rule.
    In Booker vs. Booker et als., 5 Humph., 505, upon various contingences, the property was to vest in the survivors. The court laid much stress upon the word survivors, and it was held a ’ good bequest, because it plainly contemplated an act to be done in the lifetime of the parties. In this ease the rule is also recognized that the words dying without issue, may be restricted to the words of the first taker, by any clause or circumstance in the will, which can indicate or imply such intention. I need hardly repeat again, that Joseph Bates certainly intended the bequest over to take effect in the lifetime of Thomas E. Bates.
    It will be- insisted, that the words in this will would have created an estate tail at common law, which is converted into a fee simple absolute by the act of 1784. This act abolishes estates tail, by enacting “that person seized or possessed of an estate tail, shall be deemed to be seized and possessed of the same in fee simple.” There is no law then which could give birth to an estate tail, ETone can exist by words directly creating it, and none can exist by implication, for no estate can be created by implication, which cannot by law exist. The reason why the words die “without issxxe” in England, were construed to mean an indefinite failure of issue, was because by implication they were said to create an estate tail. And although the English judges felt bound by the plain provisions of the statute de, donis, and would declare an entailment, whenever its provisions plainly embraced it, yet they resisted, their creation by implication with a steady hand. The danger of creating such estates here, ought to be no motive of decisions, because the act of 1784 annihilated them. The mischief which the rule was intended to cure is swept away, and there is no good reason for still maintaining the rule, according to a familiar maxim. It would now be the part of wisdom, to return to the common sense doctrine, and sustain such bequests as executory devises, and thus effectuate the intention of the parties. This construction has been established as to personal property, because it never could have been entailed. Forth vs. Ohqpman, 1 P. Williams, 663. And this doctrine has been maintained in many subsequent cases. Since the act of 1784, real property can no more be entailed than personal property. An estate tail never could exist in personalty, because if by express words, it was a fee, and if by implication it was always an executory devise. These reasons admit, that whenever property cannot be entailed at all, and wh.en a devise over would otherwise fail, it must be construed as an executory devise. This was the view Judge Haywood took of this question, in Lewis vs. Claiborne. He says, “if it be asked why in a case of personalty, these words are restrained, by a limitation over to survivors, but in realty not, the answer is because in personalty they cannot make an estate tail, there being no such an estate in a chattle. Then if there be no such estate in realty, in this State, since 1784, will not the word “survivors,” be restrictive in the latter case as well as in the former.” It is so both on reason and principle.
    McHenRY, for the respondent.
    1. The rule is settled, that a limitation upon the first taker “dying without issue,” in devises of real or bequests of personal property, and without any restrictive words or clause is void, because it is to take effect upon an indefinite failure of issue. In such devises or bequests, the first taker takes an estate tail, which is made absolute in him by our statute of 1784, ch. 22, § 5; and because such a limitation might tie up property for generations.
    2. The legal sense of the words, “ dying without . issue,” will be confined to a dying without issue, living at the time of the death of the first taker, by “any clause or circumstance in the will which can indicate or imply such intention.
    3. The necessary restriction of the words, “dying without issue,” was made in the will before the court. First: because the limitation over was to take effect on the death of Joseph B. Bates, without issue before the death of Thomas F. Bates, during his life, while he survived, or living Thomas. Lewis vs. Olaiborne et als., 5 Ter., 369. Williams vs. Turner, 10 Ter., 287. Booher et als. vs. Booher et als., 5 Humph., 505. Fosdieh vs Oormell, 1 John., 439. Jaehson vs. Blanshan, 3 John., 292. Moffat vs. Strong, 10 John., 12. Jaehson vs. Staats, 11 John., 337. Anderson Vs. Jaehson, 16 John., 381. Jaehson vs. Ohm, 12 Wheaton’s Rep., 153. Morgam vs. Morgan, 5 Day’s Rep., 517. Ben vs. Seheneh, 3 Hal-sted’s Rep., 29. Porter vs. Bradley, 3 Term Rep., 143. Pells vs. Brown, 3 Oro. Jae., 590. Second: because the testator is presumed to have intended to create a lawful executory devise. 3 Cruise’s Digest, title 38, p. 454, note. Lewis vs. Olaiborne, et als., 5 Ter., 369.
    Third: because an equitable life-estate was limited to Thos. F. Bates. Poe vs. Jeffery, 7 Term Rep., 589.
   OaeuthbRS, J.,

delivered the opinion of the court.

This bill was filed by the complainants, as heirs at law of Joseph B. Bates, deceased, against Thomas E. Bates, as executor, &c., for the construction of the will of Joseph Bates, Sr., deceased. The complainants contend for a large amount of property left by the said Joseph, to his son, Josejth B., who recently died intestate and without wife or children, now in the hands of defendant, Thomas F., who claims it as executory devi-see, under the will of their father, the said Joseph.

Joseph Bates made his will and died in the spring of 1849. After providing for his wife, the most of his estate was divided between his sons, Joseph B. and Thomas F.; and he carefully provided that in the event of either dying' in the lifetime of the other, without issue, the property bequeathed to that one should go to the other. And it is upon the proper construction and effect of .this provision, that the present controversy rests.

The will, after describing the property, both real and personal, given to Joseph B., concludes in these words: “The above devises to my son, Joseph Benson Bates, are made to him and his right and lawful heirs forever. Nevertheless, if my son Joseph B. Bates, should die before my son Thomas F. Bates, and without issue, then the above bequest, together with the bequests made to him at the death or marriage of my wife, Polly, are to go to my son, Thomas F. Bates, and his right and lawful heirs forever.”

The troublesome and vexatious question arising in this case,- which has been so harrassing to the courts here and in England, for many hundred years, has now been put to rest by legislation, there and here, as to recent wills and deeds. But, as this will was made before our late act, the rights of the parties have to be settled by the old laws, and cannot be affected by the late enactment. -This is clearly an executory devise and bequest; a limitation of a fee simple interest in the property to Thomas F. Bates, if Joseph B. Bates, to whom the fee is first given, should die without issue, in the lifetime of Thomas. The contingency did happen, and the question is, whether the limitation is good according to the rules of law? It is insisted that it is defeated by the rule against perpetuities, which is, that an estate limited to one, on an indefinite failure of issue of another, is void for remoteness. This rule was adopted upon sound considerations of policy, to unfetter estates for the promotion of commerce, and has been firmly maintained for centuries. But very great difficulty and perplexity have arisen in the application of this well settled principle. One test has been as well established as the rule. That is, that if the contingency upon which the estate is limited, must happen during the life or lives of persons in being at the time of the devise, and twenty-one years, and the ordinary time of gestation thereafter, then the limitation is good; ' but if it may not happen till after the time, it is bad, for remoteness, as tending to lock up estates in perpetuity. These rules are too familiar to require a reference to authorities to sustain them. But the books are crowded with controversies arising out of their ajsplication, and much apparent, if not real conflict, exists in the reported cases and elementary writers on 'the subject. It is not necessary, at this day, to enter into the discussion, as the subject has been exhausted even in our own cases, and nothing now remains to be said upon it. The diversity in the words used, indicative of intention, in cases which arise, is now the only source of trouble in this branch of the law.

A limitation of an estate upon the contingency of the first taker “dying without issue,” or “heirs,” has been uniformly held to be bad, as too remote,.because these words have an artificial legal meaning, and per se are taken to indicate an indefinite failure of issue. Although, in this ordinary acceptation, the sense in which they would be understood by all plain men, and are most generally used by unprofessional draftsmen of instruments, they are intended to indicate a failure of issue, or children, at the death of the person referred to; yet, they must he taken by the court in their legal sense. So, if these words stand alone in a will they must be construed to mean an indefinite failure of issue. The meaning of the testator, however, with this exception, is a question of intention, and this fixed artificial sense of the words referred to, will be controlled by any clause or circumstance in the will, which goes to show that he meant, by the use of them, a definite failure of issue, or a failure of issue' at his death, or within a life, or lives in being and twenty-one years, and a fraction thereafter.

The courts having got into a difficulty under the influence of a just abhorrence of perpetuities by a forced construction of the words, “dying without issue,” have ever since been struggling to get out of it by indirection instead of boldly repudiating the error. But it is our duty to adhere to settled authorities, and declare the law as it is. Any superadded words, indicative of the intention of the testator to confine the meaning of the words “dying without issue,” to the time prescribed by the rule above stated for a. good limitation, will be sufficient to control the legal sense affixed to them, and save the limitation from destruction.

If the words, “living at the death,” be superadded, it is sufficient by all the authorities. So, any other words, in juxtaposition, or in the context, of the same import, or indicating the same intention, will have a similar effect. Such as, if he should die without “issue” living. Wm. Pells vs. Brown, Cro. Jac., 590. “Should either of my children die without issue, the portion to go to the surviving children.” Booker vs. Booker, 507. “If Re should Rave issue at Ris death, I give the property to tRem, but if Re dies without issue, I give it to S. and J. Hooper.” Didlake vs. Hooper, 1 Ves. R., 194. “If either of my sons shordd depart this life without issue, Ris share, or part, shall go to the survivors.” 12 Wheaton, 153. There are many respectable authorities holding that the words, “ without leaving issue,” or the phrase, “ leaving no issue,” is sufficient to sustain the contingent estate; the word, “leaving” being held to fix the period of failure to he at the death of the first taker. But this is controverted, and held not to he the law in other cases.

Hi-. Fearne in the 2nd volume of his able treaties on remainders, p. 260, says: “ If the limitation rests solely upon the words, ‘dying without issue,’ it is too remote, and therefore void, and the whole rests in the first devisee, or legatee; hut that the signification of those words may he confined to a dying without issue then liming, by clause or circumstance in the will, which can indicate or imply such intention.” The same author says again, that “the courts will lay hold with avidity, of any circumstance, however slight, to support the limitations over of personal estates.”

This inclination is, perhaps, more palpable in the courts of this country. It is a little singular that so much talent and ingenuity as have been brought to bear upon the subject, have proved insufficient to unloose the cords with which the courts have bound themselves, but they have at last to be cut by the legislature.

This, however, only proves the strong disposition which has ever existed in the courts to preserve uniformity of decision, and give stability to the rules of property. All we can do in tlie construction of wills made before our late act of assembly, is, to explore the face of the paper for some word, or idea, to relieve the phrase, “dying without issue,” of its technical sense, and if none can be found, to give it its legal effect, and let the limitation, or contingent estate fail.

In the will before us, there can be no serious difficulty under the rules and principles above explained. The contingency on which the property is to vest in Thomas E., must, of necessity, happen during a life then in being,.if at all. The clause creating the limitation, is, it will be remembered, “if the said Joseph B. Bates should die before my son Thomas F. Bates, and without issue,” then the property to go to him- and his heirs forever. This, then, was a good executory devise. But the limitation is protected under another, and the concluding claim , in the will. This is in substance, that, in the event of the death of the said Joseph B. before Thomas F., without issue, that all the property given to the former should go to William Winton, “and be held by him in trust for the said Thomas F., during his life, and for his support and maintainance, and at his death, then to the right and lawful heirs of him, the said Thomas F., forever.”

Here then is a trust to be performed by a person then in existence. Another question may here arise as to the extent of the estate of Thomas F.; whether it is absolutely by the operation of the rule in Shelly’s case, or for life only, with remainder to his children or heirs at his death.

This is not now properly before us, but as the estate of Thomas F. is equitable, and that of his heirs legal, tlie rule may not operate, and make the law as declared by the chancellor correct, though not a question involved in tlie case before him.

On this question, however, we are not called upon now to give any opinion, and do not authoritatively settle it. The result, then, is, that the contingent limitation to Thomas F. is good, and consequently the complainants, as heirs and distributees of Joseph B.f have no interest in the property.

The decree of the chancellor is therefore affirmed, and the bill dismissed with costs.  