
    Lessee of BENJAMIN HOLLETT vs. PHILLIPS POPE and WILLIAM QUILL, tenants in possession.
    The words “dying without issue’* in a will, moan a general failure of issue, and not merely a failure of issue at the death of the devisee; unless there is a clear intention, on the face of the will, to the contrary.
    This was an action of ejectment for a tract of land in Appoquini-mink hundred, in possession of defendants.
    A verdict was taken for plaintiff’s, lessor by consent, subject to the opinion of the court on the following case.
    Richard Hollett, by will, dated 17th Sept,. 1800, devised as follows: “As touching my worldly goods, &c., I give and dispose of the same as follows:—
    Thirdly: I give and bequeath unto my son, Peregrine Hollett, the bond which I have on Lewes Alfree, and fifty pounds in money, to be paid by the executor. Fourthly: I give and bequeath unto my son, Ely Hollett, all the home place where I now live and possess, it lying and being in Appoquinimink hundred, to him and his heirs and assigns forever; and in case Eli Hollett should die without issue, the last described land to go to Peregrine Piollett, to him and his heirs and assigns forever; and in case Eli and Peregrine shold both die without issue, the last described land to go to my daughter, Mary Hollett, to her and her heirs and assigns forever. Also the bond and money which is mentioned as Peregrine’s estate, if he should die before he gets it, is to belong to Eli Hollett and Mary Hollett equally divided, or to the survivor of the two. Fifthly and lastly: I give and bequeath unto my daughter, Mary Hollett, all my personal property, and in case Mary dies without issue, all her part is to be equally divided between Peregrine and Eli Hollett, or to the survivor of the two.”
    Richard Hollett died seized; and Eli Hollett went into possession of the land devised to him, and continued in possession until his death in March, 1832. After his death the land was sold by the sheriff, on judgment obtained against him in his lifetime; and was bought by James Legg, who conveyed the same to Wm. Shepherd, under whom the defendants hold as tenants.
    Benjamin Piollett (plaintiff’s lessor,) is the eldest son of Eli Hol-lett. Pie was present when the sheriff sold the land as the property of his father, and gave no notice of his title.
    
      
      Rodney, for defendant.
    The question is, what estate did Eli Hol-lett take in the land devised to him by the will of Richard Hollett? Do the words “in case Eli Hollett should die without issue” restrain the fee simple before given, and reduce it to an estate tail: or only render the fee simple defeasible, with an executory devise over.
    Dying without issue means 1st, in the vulgar or common sense, a dying without issue at the time of the death; 2d, after a general failure of issue, which is the legal sense. (3 P. Wms. 433, 364.) The testator is supposed to speak in the vulgar and natural,"and not in the legal sense; therefore, “without leaving 'issue” means issue at the death. (3 P. Wms. 606, Forth vs. Chapman; 7 Term Rep. 689, Roe vs. Jeffery.) The intent is to prevail, and the court will search the will to find the intent. (7 Term Rep. 555, 589; 16 Johns. Rep. 382; 12 East 262.) The judges will take hold of any slight expression to give these words their natural meaning; so obnoxious is their legal sense. (Per Wilmot, chief justice, in Kelly vs. Fowler, Fearne’s Ex. Dev. 236; 245; Pells vs. Brown, Cro. Jac. 590; 1 P. Wms. 663, 198, 432, 563; 3 T. R. 143; 7 ib. 589; 1 Barn.,$r &d• 713? 1 JohnsRep. 440; 3 ib. 292; 10 ib. 12; 11 ib. 337; 1.6 ib. 382; 5 Mass. Rep. 500; 2 Munf. 479; 20 Johns. Rep. 483; 3 Yeates 205; 1 Wash. 171; 2 Mass. Rep. 56; 12 Wheat. 153.)
    I contend that to meet the intention of Richard Hollett, the expression “dying without issue” must be limited to the death of E. Hollett and P. Hollett respectively. He did not mean an indefinite failure of issue; 1st. Because the devisees over are persons in being. {Roe vs. Jeffery, 7 T. Rep. 589.) 2d. This meaning is to be collected from another clause where, after the devise of a farm; he says, “also the bond and money which is mentioned as Peregrine’s estate, if he should die before he gets it is to belong to Eli Hollett and Mary Hollett equally divided or to the survivor.” He had just before willed that if Peregrine should die without issue, the land should go over to Mary Hol-lett and her heirs; and, in the next clause, he'says if Peregrine should die before he gets the money and bond, the same should go to Eli and Mary equally, or to the survivor. This shows the meaning to fie a dying without issue living at the death, as applied to Peregrine; for only upon that construction can it be understood that he would give the bond and money to Peregrine’s surviving brother and sister; he leaving, as the will supposes, no child to take it. He did not mean to leave the bond and money of Peregrine to Eli and Mary, if P. left issue at his death, but he does not use the word “issue” in immediate connexion with this devise — he only says, “if P. dies before he gets it.” We must then look into the former clause of the same paragraph where he speaks of P. dying without issue, and thus connecting these words with the after clause “if he dies before he gets it” it is manifest how he used and understood the words “dying without issue,” viz: as leaving no issue at the death of P. This construction having been thus affixed to the term “die without issue” as applied to P., the same construction must be given it when applied to Eli in the same paragraph; for he will he taken to have used the words in the same meaning. In the fifth and last paragraph of the will he uses the same words; and, although that relates to personalty, the construction will be the same for the purpose of finding out the testator’s meaning. Pie then gives to Mary Hollett all his personal property, “and in case Mary dies without issue,” he gives all her part to be equally divided between Peregrine and Eli, or the survivor of them. The construction should make the will consistent. If in the fifth paragraph, and the last clause of the fourth, he means dying without issue at the death; the meaning of the same woi'ds in the first clause is the same. Pie meant by the bequest to Eli and Mary, a dying of P. without issue in their lifetime, showing that he meant a dying without issue at P.’s death. This is connected with the other devise by the word also.
    
    2d. On the other ground, if a man who has a title to land and knows of it, stands by and either encourages or does not forbid the purchaser, he and all claiming under him shall be bound by the purchase. (1 Fonb. Eq. 163; 1 Pern. 136; 2 ib. 160, 370, 239; 1 P. Wms. 393.)
    
      Rogers, jr., for plaintiff,
    contended — 1st. That under the devise in the will of Richard Plollett, his son Eli took an estate tail. (Waples’ lessee vs. Harman, 1 Harr. Rey. 223; 9 East 253; 4 Maulé & Sel. 61; Cro. Elk. 525; Cro. Jac. 290; 16 Johns. Rey. 3S2; 8 Law Lib. 45-7; Ram on Wills 82.)
    2d. That the sheriff’s sale could convey no title or interest but that of Eli Plollett; and the lessor of plaintiff as the eldest son of Eli, was entitled under the will of his grandfather.
    3d. That the fact that Benjamin Plollett was present at the sale and gave no notice of his title, could not affect his legal rights, (of which he was in truth ignorant.) A sheriff’s sale is full notice to all persons of a possible defect of title, as it expressly acts upon nothing but the interest of the defendant in the execution.
    4th. That the authorities relied on by the defendant’s counsel in reference to this point are applicable to an entirely different state of facts, and the principles on which they proceed have reference to fraud either in the suppression of a fact, which the party was bound to communicate, or the wilful suggestion of prejudicial falsehood. (1 Font. 163-4; and note p. 4.)
    
      Rodney replied to the authority from 1 Harr. Rep., that the case was not argued; and the only authority cited by the court did not sustain the decision.
   By the Court.

Harrington, Justice,

'This court decided in JVaples’ lessee vs. Harman, that a devise to A. and his heirs, but if he should die without lawful issue, to B. and his heirs, was an estate tail in A.; and not a fee, with an executory devise over. We followed the long established and well settled, though not always unquestioned, rule of construction, that in a devise of real estate, if nothing else in the will controls them, the words “dying without issue,” mean a general failure of issue, and not a failure of issue at the death of the devisee. The case of Anderson vs. Jackson was referred to, not as an authority in itself, for the decision is the other way; but as containing the able and unanswerable argument of chancellor Kent, in which he has the magnanimity to acknowledge his own error on the same question, in Fosdick vs. Cornel, (1 Johns. Rep. 439.) A majority of the Senate of New York, by a vote of fourteen to ten, preferred following the erroneous precedent of their Supreme Court; but an examination of the opinions will show that the vote was one way, and the argument the other.

We can see nothing in this will that indicates an intention of restricting the devise to a failure of issue at the death of Eli Hollett. [f the testator had been asked whether he did not intend the devise over to Peregrine to take effect in case Eli left issue, which died without issue in the lifetime of Peregrine, he would undoubtedly have said yes, as most other testators would, who use the same words; and ¡ret it is common to say that this legal construction generally violates ;he real intention and meaning of the testator. Richard Hollett cer-;ainly intended to give this farm to his son Eli, and also to his issue, is long as he should have issue; and, failing that issue, he equally in-:ended to give it to Peregrine and his issue. This last intention can-íot be executed consistently with the rules of law which will not per-nit estates to be limited on so remote a contingency, but confine hem to about the period of a life or lives in being. Hence the struggle in these cases, where the first devisee happens to die without issue at that time, is always to restrict the meaning of the words dying without issue, to a dying without issue living at the time of such death, which would make the limitation over good as an executory devise. For this purpose the words without leaving issue, or leaving no issue behind him, have been taken hold of as manifesting intention to restrict the force of terms which in their plain, rational as well as legal signification, have reference to an indefinite failure of issue. These efforts to strain a construction have brought the courts into collision on this branch of the law, and the cases are not always reconcilable with the principles that profess to govern them.

Rogers, jr., for plaintiff.

Rodney, for defendant.

2. On the other point, we do not think that the fact of the plaintiff’s presence at the sale of this land by the sheriff without proclaiming his title, will prevent his recovering in this action. The sheriff's sale was professedly of nothing but the interest of Eli Hollett; the plaintiff had no connection with it, and used no fraud or circumvention, which -would be necessary even to avoid a contract between the parties in a court of equity. Judgment for plaintiff.  