
    Moore’s Trustees, vs. Howe’s Heirs.
    Detinue.
    Appeal from the Bourbon Circuit, George Shannon, Judge.
    
      Devises. Contingent Remainders. Construction. Agreements. Judgment. Execution.
    
    April 23.
    John Dunlap’s will, containing the devise.
   Opinion of the Court, by

Chief Justice Boyle.

In the year 1791, John Dunlap made and published his last will, which contained the following clauses. — “I will to my daughter Jane, one negro girl, named Nan, and issue, also one mulatto boy named Jack, until he is of the age of twenty-six years; and in that time, to be learned the art and mystery of shoe-maker, and to he 1 aught to, read, and when he comes to the age mentioned, then to be free; or at liberty to work or labor for himself;—also, one horse and saddle, and one cow; also, I will to my daughter Cynthia Kid, one negro boy named Captain, one named Monday, also, one negro wench named Jude, and issue, also one named Emmy, and issue, also one named Fanny; also one horse and saddle, bed and furniture, two cows, and one third of the household furniture; and if one of my daughters should die before the other, leaving no issue, I will that the part willed to her should go to the use and benefit of my other surviving daughter, and if both should die without issue, then I will that my beloved wife should enjoy the property willed to them, during her life, and at her death, leaving no lawful issue, then I will that said property be equally divided between sister Isabella Howe, and sister Jane Howe’s children.”

Statement of the facts.

Decision of the circuit court on the agreed case.

After the testator’s death the will was duly admitted to record in the county court of Bourbon county, where he died, and his wife who was appointed his executrix, took upon herself the execution of the will. His daughter Cynthia Kid, died in the lifetime of the testator, unmarried and childless. His daughter Jane, survived the testator, but afterwards died unmarried and childless, and by her will bequeathed all her estate, with the exception of some inconsiderable legacies to her mother, the wife of the testator, who has since died and after her death the appelants as trustees for certain purposes in her will mentioned, took possession of the slaves, or some of them, and their descondents, devised by the clause of the testator’s will before recited, to his two daughters. To recover the possession of those, slaves the appellees, being the cnildren of the testator’s two sisters, Isabella and Jane Howe, brought their action of detinue against the appellant.

On an agreed case, comprising amongst others, the foregoing facts, the circuit court gave judgment for the appellees, for certain slaves in the agreed case mentioned, and the appellants have brought this case, by an appeal, to this court.

Power of disposing of our estates after our death, is not by natural law, but is one of the positive institutions of society.

Here no person can control his estate real or personal longer after his death, than for lives then in being, and for 21 years and some months afterwards.

As the appellees, who were plaintiffs in the circuit court, claim title to the slaves in question, in virtue of the devise over to the testator’s sister, Isabella Howe and his sister Jane Howe’s children, it is plain if that, or either of the preceding devises over be void, that their right to recover cannot be sustained. Whether those devises, or either of them, be void or not, depends upon the power of the testator to make them, and the construction which shall be given to them.

Naturally, no man has a power of directing to whom or in what manner his estate shall pass after his death, for when he ceases to be, his power necessarily ceases with him. His power, therefore. in this respect must depend upon the positive institutions of society. To stimulate to industry and economy, and to enable parents to exert a beneficial influence over their children and make such arrangements as may suit the exigencies of their families, the law of this country as well as that of must other civilized nations, has given to every one of competent capacity, the power of directing by will to whom his estate shall pass. But although it is reasonable that a man should have power of thus disposing of his estate after his death, it is obviously as reasonable that he should not have the power of directing its disposition for all time to come; and the law, while, for benificent purposes, it concedes to every one the power of directing to whom his estate after his death shall go, has at the same time been careful that this power should not be abused.

To prevent, therefore, estates from being locked up forever from commercial and social purposes, it has forbidden perpetuities, and fixed a period beyond which no one is allowed to direct how his estate shall devolve. That period is for life, or lives in being, and twenty one years and a few months, and the rule is the same in this country, in relation both to real and personal estate. A man cannot, therefore, devise over an estate to take effect after that period, and if he does so the limitation over will be void, and the person who takes the preceding estate will have the fee simple or absolute property in the estate devised. Whether the devises over in this case be of that character depends upon the construction to be given to them.

Devise over after the death of the devisee of the particular estate leaving the no issue at her death, is valid.—

-Otherwise, if it be after an indefinite failure of issue after the particular estate determined.

It was not seriously urged in the argument that the first and the last of these devises over were made to take effect upon too remote a contingency to be valid, and indeed it is apparent that there is no reasonable ground to doubt of their validity, for as they are both made to depend upon persons then in being dying leaving no issue, and as the expression leaving no issue, is construed to mean leaving no issue at the time of the death, it is clear that the contingencies on which they were to take effect, must if they happened at all, happen within the compass of lives then in being.

But it was most earnestly contended that the intermediate devise over to the testator’s wife in case both his daughters should die without issue, was made to depend upon a contingency too remote to be valid.

If, as was urged for the appellant, the expression without issue, used in this devise, must be understood to mean an indefinite failure of issue, then as that event was of a character which might not for many successive generations have happened, the devise over must be deemed void; but if, as was contended on the other side, the expression is to be understood to mean, dying without issue living at the time of the death, then it is plain that the devise over must take effect, and, if at all, wihin the allowed period to make such a limitation good. Tne latter of these meanings is certainly much the most common and obvious. The former indeed appears to us to be a very strained and artificial meaning of the expression. According to this meaning, although a man should die leaving issue who afterwards dies, yet he may be said to die without issue. In such a case, as he would be dead and his issue extinct he might, no doubt, with strict propriety, be said to bo dead without issue; but without assigning to the words the most strained and artificial meaning, he could not be said to have died without issue.

In a devise of land—dying without issue imports an indefinite failure of issue, and is not confined to a failure at the demise of the parent—Otherwise, if any circumstance indicate the contrary intention.

In devises of personalty, and of terms for years, the construction is a failure of issue at the death, not afterwards.

Cases cited.

Strained and artificial, however, as such a meaning of the words may be, a majority of the modern cases agree that the expression of dying without issue should be taken to import an indefinite failure of issue unless the contrary appears from other circumstances in the will. But, aware that such a signification of the expression, would, it in all cases adhered to, tend more frequently to defeat than to effectuate the intention of the testator, judges have, with avidity, seized upon any other circumstance in the will to aid them in giving to the expression a different interpretation, by restricting it to mean dying without issue living at the time of the death

This disposition of judges thus to limit the generality of the expression of dying without issue, to dying without issue living at the time of the persons decease, has been more distinctly manifested in relation to bequests over of chattels, than in relation to executory devises of the freehold, and whatever may be the doctrine with respect to the latter, it has now become an established principle in devises or bequests over of terms for years, or personal estate, to limit the expression of dying without issue to dying without issue living at the time of the persons decease, if there be in the will any circumstance to indicate such to be the intention of the testator.

Thus where a term for years was bequeathed to H. for life, and no longer, and after his decease to such of his issue as H should by will appoint, and in case H. should die without issue, then over to A. and H. died without issue living at his death, those words, upon the whole will, were construed to mean issue living at his death, because it was to be intended such issue as H. might by will appoint the term, to, namely issue then living. 1 P. Wms. 482, 3 Saund. 388 (1) note 8. So where the testator pos

sessed of a term for years, devised the land to B., and the heirs of his body, and if B. should die without issue living, then to C. this was held a good limitation to C. the contingency being to arise within the compass of a life in being. 2 Fearn. Remainders 184, 1 Salk. 225. And an appointment by will to A, and if he died without issue under twenty-one, over to others, was held a good limitation by way of executory devise. 1 Wil. 270. So where the testator devised parts of his estate to each of his sons, and if any of his sons should die without issue, directed his part to be divided amongst the survivors, the limitation was held good. 10 John. Rep. 12, and in the ease of Mehalal vs. Skinner, Pre. in Chanc. 528, cited in the preceding case, where there was a bequest of bank shares to four children, and if any should die without issue, his or their share, to go to the survivors, the limitation over was adjudged good.

Intention of the testator controls the signification of particular expressions.

It shall not be supposed the testator attempted to create a remainder against law, but the other construction shall be prefered.

In all these cases it will be perceived that the devises over, are to persons who moust take (if at all) in the period of a life in being, and this being the manifest intention of the testator, it was allowed to control the meaning which otherwise would have been attributed to the expression of dying without issue. Many other cases of like import might be cited in support of the same principle, but it is unnecessary to be done. The principle is itself intrinsically correct, and does not need the aid of authority to support it.

Whether a man can make a devise over, to take effect after an indefinite failure of issue, is a question of power; but whether a devise is of that character, or not, is a question of intention, and the expression of dying without issue, has been construed to mean an indefinite failure of issue, only because it was supposed when taken alone, to indicate such to be the intention of the testator; but when the devise over must take effect, if it takes effect at all, in the life of a per on in being, it is plain that to construe the expression to mean an indefinite failure of issue, would be inconsistent with the intention of the testator, and to effectuate that intention, therefore, the expression of dying without issue, ought, and must, in all such cases, be construed to be a dying without issue living at the time ot the death on which the devise over is made to depend. This principle applies to, and must govern the present case; for the devise over here after the death of the testator’s daughters, is in express words, that "his wife should enjoy the property willed to them during her life.”

The words and leaving no lawful issue, held to be here a contingent devise by implication to the children—But as they take by purchase, their mother’s estate is not enlarged.

Issue may be a word of either purchase or limitation.

Where there is an express devise or life, and then a devise over to the children, they take by purchase, not representation.

But it is contended that the subsequent words, "and at her death leaving no lawful issue,” gives her, notwithstanding the express devise to her for life, an estate in fee, by implication, and that consequently, although she had died before her daughter, if she had left issue, the issue would have taken under the devise, and as the devise might thus take effect after her death, the principle we have mentioned does not apply.

The words "and at her death leaving no lawful issue,” ought we are inclined to think to be construed to be a devise to the issue by implication; but we cannot admit that they ought to operate to enlarge the estate of the wife and thereby vest in her an absolute property or fee simple estate, and if they cannot so operate, the issue, if they had taken, must have taken by purchase, not by descent or representation.

Issue is a word of purchase, as well as a word of limitation, and it may be construed to operate in the one way, or the other, according to the intention with which it is used, and in executory devises of personal estate, slight circumstances have been considered as sufficient evidence of an intention to use it as a word of purchase, and not of limitation. Even the words “leaving no heirs of the body” or "leaving no issue,” the precise words employed by the testator in this case, have been in themselves held to manifest an intention that the issue should take by purchase, and not by descent. 2 Fearn. 305-306 and 307. But such an intention in this case is not only indicated by the words “leaving no issue,” but by the language employed by the testator in the devise to his wife, for the expression that she should enjoy the property during her life, not only emphatically limits her estate for life, but moreover, seems strongly to imply that she should have nothing more than an usufructuary interest in the property.

We are aware of no case of an executory devise of personal estate, where the devise is thus expressly made for life, and no express devise over to the. issue, in which it has been determined that the issue should take by representation, instead of taking by purchase, and we may venture to say that no case of the kind, unless very peculiarly circumstanced, can be so determined without a total disregard of the intention of the testator.

Devise over in fee after two life estates sustained.

An agreement that if the law be for plaintiff, on the agreed case, judgment shall be for him, but no execution should issue, it seems must be made a part of the judgment.

Assuming it then, that the wife of the testator must take, if at all, by the devise over to her after the death of her daughters during her life, it is perfectly clear that the testator could not have intended by the expression without issue, an indefinite failure of issue, and consequently for the purpose of effectuating the intention of the testator, that expression must be restricted to a dying without issue living at the time of the death of the daughters.

It follows, therefore, its the devise to the wife was to take effect within the compass of lives in being, that the limitation is a good one, and of course, that the plaintiffs have a right, under the devise to the sisters of the testator.

Several other points are made by the appellants, but they involve no principle new or important, and are evidently untenable, except one in relation to the irregularity of entering the judgment. Two of the slaves sued for John and Jacob, were admitted not to be in the possession of the defendants, and it was agreed if the law should be for the plaintiffs, that judgment might be entered for those slaves but that no execution should be issued for them; but the judgment is entered for them without any direction that no execution shall be issued, and the defendants are, therefore, liable, contrary to their agreement, to an execution for those slaves as well as the others.

The judgment must be reversed, with costs, and the cause remanded that a judgment may be entered as heretofore, but with directions added thereto, that no execution shall be issued for the slaves John and Jacob.

PETITION FOR A RE-HEARING, BY

D. MAYES, ESQ.

As one of the counsel for the appellants, I feel constrained by a sense of duty, most respectfully to ask a reconsideration of this case, being thoroughly convinced from no inconsiderable reflection and a full examination of authorities, that the decison of the case cannot be supported.

Before I enter upon an examination of the case, I would respectfully ask of the court to review the cases refered to in the brief furnished by me upon the argument. Many of those cases will be found to rest on principles irreconcilable with the decision in this case, and none will be found to support it.

For the purpose of being as brief as possible, I shall forbear to cite them here or remark upon them, but will attempt by reasoning and authority, independent of them, to shew that the re-hearing asked should be granted.

With a view to perspecuity I copy that portion of the will out of which arises the present contest. It is as follows:

“I will to my daughter Jane, one negro girl named Nan, and issue, also one mulatto boy named Jack until he is of the age of 26 years, and in that time to be learned the art and mystery of shoe maker, and to be taught to read, and when he comes to the age mentioned, then to be free or at liberty to work or labour for himself, also one horse and saddle and one cow; also, I will to my daughter Cynthia Kid, one negro boy named Captain, one named Monday, also one negro wench named Jude, and issue, also one named Emma, and issue, also one named Fanny, also one horse and saddle, bed and furniture, two cows and one third of the Household furniture, and if one of my daughters should die before the other, leaving no issue, I will, that the part willed to her, should go to the use and benefit of my other surviving daughter, and if both should die without issue, then I will that my beloved wife should enjoy the property willed to them during her life, and at her death, leaving no lawful issue, then I will that said property be equally divided between sister Isabella Howe and sister Jane Howe’s children”

The question is whether any of these devises over are made to depend upon an indefinite failure of issue, and so are so remote.

I shall waive all examination of the 1st and 3d devises. (although I do not consider them as being as clearly against me as the court seems to have done.) and examine the opinion as it relates to the second devise. In examining that, the court say, "whether a man can make a devise over, to take effect after an indefinite failure of issue, is a question of power, but whether a devise is of that character or not, is a question of intention, and the expression of dying without issue, has been construed to mean an indefinite failure of issue, only because it was supposed, when taken alone, to indicate such to be the intention of the testator, but when the devise over must lake effect, if at all, in the life of a person in being; it is plain that to construe the expression to mean an indefinite failure of issue would be inconsistent with the intention of the testator. And to effectuate that intention, therefore, the expression of dying without issue, ought and must in all such cases, be construed to be a dying without issue living, at the time of the death, on which the devise over is made to depend.

This principle applies to, and must govern the present case; for the devise over here, after the death of the testator’s daughters, is in express words that his wife should enjoy the property willed to them during her wife. But it is contended that the subsequent words “and at her death, leaving no lawful issue,” gives her, notwithstanding the express devise to her for life, an estate in fee, by implication, and that consequenty, although she had died before her daughter, if she had left issue, the issue would have taken under the devise, and as the devise might thus take effect after her death, the principle we have mentioned does not apply. The words “and at her death leaving no lawfull issue.” ought, we are induced to think, to be construed to be a devise to the issue by implication but, we cannot admit that they ought to operate to enlarge the estate of the wife, and thereby vest in her an absolute property, or fee simple estate, and if they cannot so operate, the issue, if they had taken, must have taken by purchase and not by descent or representation.”

This, then, is the pivot upon which the case is made to turn. I contend that by this devise the wife took an estate tail, and that her issue would have taken by representation.

The devise being that the wife shall have the use during her life, I premise that the devise of the use is a devise of the thing itself. See American law Journal, 1st vol. page 45, and authorities there cited. In this case the court consider the will as giving the wife a life estate, but say the subsequent words do not by implication enlarge that estate. I contend that they do. A devise to one without specifying any estate is only a devise of a life estate; this is so familiar that authorities are considered unnecessary to support it; however, I refer to Douglass 763. Right, lessee of Mitchell and wife vs. Sidebotham and al. Cowp. 238, Bowes vs. Blacket, Ibid 355. Loveacres vs. Blight and ux. Ibid 306, Hogan vs. Jackson, I lay down this principle to show, in connexion with the one preceding, that the devise of the use to the wife, for life, is equivalent to a devise to her without a specification of any estate. In Lippett vs. Hopkins, 1st Gallison’s Reports, 453, Judge Story says—

“If a devise be made to one without specifying any estate, and in case of an indefinite failure of issue, a devise over, the first devisee shall take an estate tail, for it is manifest, that the devisor intended a benefit to the issue, and that the estate should not cease but on a general failure, and this intention can be effected only by declaring the estate a fee tail in the ancestor, and even where the estate to the first devisee has been expressly limited for life, and a devise over, upon a like failure of issue, the same construction has prevailed.” In support of the first of these positions, the learned Judge cites Forth vs. Chapman, 1 P. Wms. 664. King vs. Rumball Cro. Jac. 448, Wyld vs, Lewis 1 Atkyns 432. Denn vs. Slater, 5 T. R. 369. Hope vs. Taylor, 1 Burr. 268-9, Co. 127. Moore 682, 1 Vent. 231, 2 P Wms. 194, 1 P. Wms. 605, Com. Dig. Devise N. 5, 3 Mod. 123, 1 Rolls Abr. 837, 4 Burr. 2246. Hob. 64, Cro. Jac. 599, Willes R. 1. I have examined many of the authorities and they seem fully to support the principle advanced. In support of the second position he refers to Forth vs. Chapman, 1 P. W. 667, Target vs. Gant, 1 P. W. 436. Price vs. Smith, Willis 1. In the case of Price vs. Smith the language of Lord Ch. J. Willis is full and express to the point now in discussion. Says he, if a man devise an estate to A. or to A. for life without saying more, and afterwards, in the same will, devise the estate to another, in case A. dies without issue, the. subsequent words, will enlarge A’s, estate by implication and give him an estate tail.

Thus I have shown that the wife’s estate is enlarged by the subsequent words. But what is, if possible, more clear and decisive for me, is, that where no estate whatever, has been directly devised, upon the implication arising from the devise over on the failure of issue, the devisee has been permitted to take an estate tail. In Goodright on the demise of Goodridge vs. Goodridge, Willis’ Rep. 369, the devise was, “and my will is, that if my son Richard do happen to die without heirs, then my son John shall enjoy my land.” Here was no devise to Richard, yet it was held, that by necessary implication, he took an estate tail; not a fee, because the devise over being to John, he could not die without heirs while John was living, and so the word heirs should be understood heirs of the body of Richard And this estate in tail, by implication was here adjudged to arise, notwithstanding the court fully recognize the rule laid down, in Sprit vs. Bence, Cro. Car. 368, that words of a will which disinherit an heir, ought to have a clear and apparent, intent, and not to be ambiguous or any way doubtful, “and (says the court) surely no words can be more plain and clear and less doubtful and ambiguous than the words of the present will are,”

Now, in the present case, had the words “then I will that my beloved wife should enjoy the property willed to them, during her life,” been wholly omitted; and the words “and at her (the wife's) death, leaving no lawful issue, then I will that said property be equally divided between sister Isabella Howe and sister Jane Howe’s children,” alone inserted, the words of Lord Ch, J. Willis, would have applied emphatically, that surely no words could be more plain and clear, and less doubtful and ambiguous, than the words of the present will are; and the wife under these words alone, would clearly have taken an estate tail. So that it is not necessary that these latter words should, as the court intimate operate to enlarge the estate of the wife to support our position; but it is necessary that the court should construe the former words, so as to narrow the estate which the wife would take, under the latter, to maintain their opinion. We do not deem it essential to enlarge the former by the latter; for strike out or disregard the former, and place it on the latter alone, and the court must show that the former words restrict the latter, before the opinion can be supported. And such a construction would, not only, be contrary to reason but to established law. For a devise to A. for life, and after his decease to bis issue, is an estate tail, See 1 Vent. 214, 225, 2 Lev. 58, 2 Ld. Raymond 1440, 2 Wilson’s Rep. 6, Ibidem 322. So a devise to A. and his issue, is an estate tail. Gilbert’s law of Dev. 33, Comyns’ Rep. 372, 2 Ld. Raymond 1440. There are other authorities to the same effect; it is unnecessary to refer to them, as the principle is clear. .

So a devise to A., (which in itself, is but a life estate,) and if he died without issue, remainder over, is an estate tail. Cro. Jac. 448. 1 P. Wms. 229, 1 Vesey 24, 1 P. Wms. 685. So a devise to A. and his heirs, and if he die without issue, remainder over, is an estate tail. Cro. Jac. 695, Comyns’Rep. 539, 3 Wms. 244. This seems to hedge in the subject so completely that there is no escaping from my conclusion, unless the case of Goodright vs. Goodridge can be overturned. That cannot be done; it is not impugned by any case, but on the contrary, is supported by the case of Walter vs. Drew. Comyns Rep. 372, and by the host of cases refered to in the case itself. The case of Walter vs. Drew is this, “it is my will that if William Wicks, my son, shall happen to die, and leave no issue of his body, lawfully begotten, that then, in that case, and not otherwise, after the death of the said William, I give and bequeath all my lands of inheritance in Lawlissick unto the said Richard my son, to have and to hold the same after the death of the said William, to him and his heirs;” held that. William took an estate tail by this will. And the same principle is asserted in Lippett vs. Hopkins, 1st Gallison 459.

Thus I have hinted at one of the reasons why I conceive a re-hearing should be granted.

But to concede that the devise over to the wife is of an estate for life only, and not in tail; it does not follow that the preceding estate was not an estate to terminate upon an indefinite failure of issue. Suppose the wife had died before Jane the daughter, then the devise over to Issabella Howe and Jane Howe’s children, comes in It would b he absurd to say, that the testator did not intend, that they should take unless his wife outlived his daughters. they were all objects of his bounty, and none can doubt but that he intended to provide for them, in the event that his daughters died without issue, and his wife died leaving no lawful

issue, without regard to the order of time in which these events took place. Hence the devise over to Isabella Howe and Jane Howe’s children, might take effect, after an indefinite failure of the issue of the testator’s daughters; upon the whole of this branch of the subject, I would beg leave to ask the attention of the court, to the reasoning and authorities, in the case of Goodright vs. Goodridge, before refered to, and more especially to the case of Lilibridge vs. Adie, 1 Mason’s Rep. 234. There the devise was to the wife for life, and after her decease to his two daughters, A. and B. to them, their heirs and assigns, but in case they should die without issue, that the same should go to, and vest in their two sisters, C. and D. Held that the devise to A. and B. was a fee tail, and not a fee simple, the contingency upon which the limitation was to take effect, not being limited to a life in being, but was upon an indefinite failure of issue. In this case the court did not deem it necessary to decide whether the daughters C. and D. took estates for life or in fee.

The opinion of Judge Story, in that case, seems, with full reference to authority, to settle the present case for me, and as his views are clear and perspicuous, I would here beg leave copiously to extract from him, with reference to the numerous authorities, by which his positions are supported. “In no branch of the law, (he wisely observes,) is a more cautious examination of authorities necessary, and indeed in no branch are the principles more generally built upon nice and technical reasoning. It is quite another consideration, whether those principles were originally the most correct or equitable, that could have been adopted. It is sufficient that they are now incorporated into the law, and cannot now be separated from it, without shaking the very foundations of all landed titles. We are at liberty, in last wills and testaments, to effectuate, the intention of the testator, if by law, it can be done. But in ascertaining what that intention is, the construction which has been put upon like words, and the artificial rules by which it is sifted, and fixed in the authorities, are to be our inflexible guides, where they distinctly and pointedly apply, we are not permitted to indulge in conjectures, however plausible, as to the private intention of the party, when the law has pronounced its own mode of investigating and deciding it.” He then proceeds amongst others to establish the following propositions.

The words "dying without issue,” in reference to freehold estates, are to be construed, an indefinite failure of issue, unless there be something in the context which manifestly confines the sense to a definite period of time, he refers to Fearn Ex. Dev. 357, 361. Butler’s edition 471, 476. Crook vs. DeVandeg, 9 Vesey Jr. 197. Dawsy vs. Griffiths, 4th Mawle, and Selwyn, 61.

Assuming that the devise over gave only a life estate to Mary and Charlotte, it does not follow that the previous estate is at all events to be held as a fee simple. That is only one circumstance from which an intent to limit the contingency to the death of the first devisee may be infered, but it is not decisive, as to the extent of the estate previously devised, for such a contingency may as well be limited upon an estate tail, as an estate in fee. Spalding vs. Spalding, Cro. Car. 185, and cases cited in 1 Gallison 465. Fearn Exec. Dev. 308, 398.

In Porter vs. Bradley Lord Kenyon said, "If the devise had been, and in case be (A.) shall die without heirs then over,” it would have given to A. an estate tail. Yet there was in that case a subsequent limitation, on failure of A’s. issue, to the testator’s widow for life. So in Webb vs. Hering, Cro, Jac. 415, the devise was "to A. my son, after the death of my wife, and if my three daughters or either of them, do outlive their mother and A. their brother, and his heirs, then they to enjoy the same for term of their lives,” and it was held that A. took an estate tail only, see also Tyte vs. Willis, Cas. Temp. Talb. 1. Forth vs. Chapman, 1 P. W. 663, Roe vs. Scott, Fearn Exec. Dev. note by Powell, page 363. It may also be admitted, as asserted

by the late learned Mr. Fearn, that although an executory devise in fee, or in tail to one in esse after a dying without issue is void. Yet that an executory devise for life to one in case to take place after a dying without issue may be good, because in the latter case, the future limitation, being only for the life of one in esse, it must necessarily take place during that life or not at all, and, therefore, the failure of issue, in that case, is confined to the compass of a life in being. Before I proceed, permit me to make two applications of what has preceded.

1st. It is said an executory devise in tail, or in fee to one in esse after a dying without issue is void. See also Fearn on remainders, 376, Butler’s edition 488.

It has been shown that the devise to the wife was in tail.

That devise was after a dying of the daughters without issue.

The devise over to the wife was void; and so she held not as devisee in tail of the first testator, but as devisee in fee of the first taker.

2d application. It is said an executory devise for life, to one in esse, to take place after a dying without issue, may be good, because in the latter case the future limitation being only for the life of one in esse, it must necessarily take place during that life, or not at all. Then to make it good—

It must be only an estate for life, that is limited. Here the widow has an estate tail. Here also, is the limitation to Isabella Howe and Jane Howe’s children Can this be said to be only for the life of one in esse.”

I now proceed with the case. Immediately after the words last quoted, Judge Story proceeds. “But it by no means follows, from this admission that every such limitation over for life, is to be construed an executory devise, for an estate for life may well be limited to take effect, after an indefinite failure of issue, in which case it is a mere vested remainder for life, after an estate tail. Fearn on remainders, 148, Butler’s edition, 215, &c.” Now if every limitation for life, shall not be construed an executory devise, and if an estate for life may well be limited to take effect after an indefinite failure of issue, it seems to me that the reasoning of the court founded upon the supposition that the wife’s was a mere life estate, (which I hope I have shown to be untenable,) wholly falls short of establishing the conclusion attempted to be deduced from it, that the testator in using the words “dying without issue meant, without issue living at the time of the death. This conclusion is not warranted in law or in logic, and yet it is only reached by omitting to notice the additional devise over to Isabella Howe and Jane Howe’s children.

The learned judge from whom I have been extracting so copiously, and who is so fortified by unquestionable authorities, does not so reason. His language is "what, therefore, shall be the effect of a limitation over for life, to one in esse, after a previous estate devised, which may be within an estate in fee or in tail, depends upon the context and the intention of the testator to be collected from the whole will.”

I should too far trespass on the time of the court were I further to extract from this very able case, I would entreat the serious attention of the court to the case itself, and to the numerous authorities there refered to, all of which I humbly believe will constitute a mass of legal learning, imperiously requiring a revision of the decision in this cause.

I would here beg leave to remark that it has, in examining the decision in this case, occurred to me, as extraordinary, and an unwarrantable latitude, to held that the testator means different things, when in two, devises, he uses language which means the same thing, when tested by the technical rules adopted by law, to search out the meaning of the testator, and when he uses language which when tested by these same rules means different things, to hold that he meant the same thing. As long as words shall remain the means by which we make known our intentions, so long will such interpretations be destructive to all certainty, and consequently of all security in relation to the titles of property held by devise.

But strange and destructive as such a mode of interpretation is, yet has the court adopted it in this case, and by no other than this extraordinary mode of reasoning, (a mode the dangerous tendency of which is only equalled by its novelty, and the confusion and uncertainty to which it leads,) can a conclusion be arrived at, which puts down the claim of my client.

The first devise is confessedly and obviously, in tail.

A devise to one for life and after his death to the issue of the devisee, is confessedly and obviously an estate tail.

The third devise is to the wife for life express, and after her death to her issue by necessary implication, and so acknowledged in the decision, and even without the express devise to the wife, the words respecting her issue would give her an estate fail. by necessary implication.

Although the 1st and 3rd are thus clearly estates yet the decision assumes them to be indicative of a difference of intention in the devisor.

Dying leaving no issue, the court say, (and I am willing to admit correctly.) shall be construed no issue living at the time of the death.

Dying without issue, the court admit, is in itself indicative of an intention to make the devise over dependant on an indefinite failure of issue. Yet when the testator uses the first, which means one thing, and second, which means another, the conclusion is, that by the opposing modes of expression he meant one and the same thing. And thus, I would most respectfully suggest, it appears to me that the court have proved things which the law pronounces different, to be the same, only by assuming that those which the law pronounces the same, are different. It is hoped that if the reasoning here attempted to be adduced, and the authorities here refered to, do not fully and fairly prove that the decision given is untenable, they may be found so to bring it into doubt as to prevail on the court to grant that rehearing which is so anxiously asked. Not only is this case in itself one of great interest and magnitude, from the rights and interests dependent upon its decision, but of vital importance as it relates to the settling or unsettling fixed rules of construction in relation to last wills and testaments, upon which a great number of estates must hang. With diffidence, but with humble confidence, these remarks are respectfully submitted.

Extract from Dunlap’s will.

Statement of the subsequent events.

One question stated.

On this Petition, the decision of the case was suspended till the present term; the motion for a rehearing was overruled.

Opinion of the Court on the Petition for the re-hearing, by

Chief Justice Bibb.

Devises. Contingent Remainders. Estates Tail. Construction.

The question grows out of a clause in John Dunlap’s will, wherein he devises certain slaves to his daughter Jane, and certain others to his daughter Cynthia, “and if one of my daughters should die before the other, leaving no issue, I will that the part willed to her, should go to the use and benefit of the other of my other surviving daughters, and if both should die without issue. then I will that my beloved wife, should enjoy the property willed to them, during her life, and at her death, leaving no lawful issue, then I will that said property be equally divided between sister Isabella Howe, and sister Jane Howe’s children.”

Cynthia died unmarried and childless, before the testator; Jane survived her, and after the death of the testator, died unmarried and childless; the wife of the testator survived them, and having survived all her children, and not having any child since the death of her husband, John Dunlap, she died then childless, in the year 1824.

And now the ultimate devisees of John Dunlap, the children of Jane Howe and of Isabella Howe, claim the slaves: and by the opinion formerly delivered, they are entitled. To that opinion, a petition has been presented for reconsideration.

That the devise over to Howe, depending upon the death of the wife, Elizabeth Dunlap, is not a good devise, is asserted in the petition. To make it a void devise, it is argued that the devise to the wife, and the terms of the after devise to the children of Jane Howe, converted the life estate, expressly limited to the wife, into an estate tail, by implication; and that if she had died, leaving issue, such issue would have taken, by representation, as heir to the mother, and not as purchaser, by the will of Dunlap.

In slaves, a remainder can be limited only where it could be created of a chattel personal, at common law.

Of executory devises.

Devise to a daughter,and if she die without issue, to the widow for life, and at her death, leaving no issue, to his nieces, on the death of the daughter and wife without issue, the nieces take by the executory devise.

There may be a devise over after a life estate, is a personal chattel,

That enquiry is not worth pursuing, because the wife left no such issue, but at the very time of her decease, died without issue; because no such estate tail could be created, or limited in law, in these slaves, by reason of the declaration of the statute of 1798,(2 Lit L. K. 113. 2 Dig. 1156. Sec. 38) that “no remainder of any slave or slaves, shall or may be limited by any deed, or last will end testament, in writing, of any person whatsoever, otherwise than the remainder of a chattel personal, by the rules of the common law, can or may be limited,” &c.

And because, by an executory devise, a fee simple or other less estate, may be limited, even after a fee simple, and by it, a remainder of a chattel interest may be limited after a particular estate for life created in the same.

The true question is, to what extent the remainder of a chattel personal can be carried by limitation, according to the rules of the common law. This extent is to a life or lives in being, and one and twenty years after. We are then brought to the plain intent of the testator; and if the intent of the will be to give the slaves to the Howes only, in case the wife, Elizabeth Dunlap, had no issue living at the time of her death, then the subsequent devise over to them is good, as an executory devise. So says Fearn, 371, and the cases referred to in 3 Pr. Wms. 268, (Coxe’s Edition.) and so says Christian, in his edition of Black. Com. Vol. 2, 175, in note.

In Hyde vs Parrott, et. al 1 P. Wm. case 1, Hyde devised his household goods to his wife for life, and after her death, to his son. The court, on the strength of authority and precedents, construed the use of the goods, and not the goods, to pass to the wife for life, “in order the better to comply with the intention of the testator,” and allowed the devise over, to be good. So it was adjudged and settled in the case of Tissen vs Tissen, (1 Pr. Wms. 500.) and in Upwell vs Holsey, (1 Pr. Wms. 651.)

Argument of appellant stated.

Dying without issue has two significations, the natural and technical-But

In both these cases, limitations over after an estate for life in goods, were held good. In Tissen vs Tissen, the chancellor said, “anciently the notions were, that a personal thing given to one for life, or even for a day, was a gift forever, and would not bear a limitation over; but the construction has since been, that such devise passes only the use and profits, and not the thing itself, and so is made good that way.

By this will of Dunlap, the devises are all to persons then in being, before, the limitation over to the Howes in made, so that all the candles are lighted and are consuming together, and the ultimate remainder is only given after the death of the longest liver of Jane and Cynthia, the daughters, and Elizabeth, the wife; as we understand the devise. But as the counsel for the petitioner would have us to make it, the contingency does not cease, and be determined by the death of the wife. Why not? Because, as the argument is, the wife might have left issue, and that issue would be entitled, and that issue might again have left issue to be entitled, and so on, until after a long succession of issue, they might at last become extinct, and then the wife, Elizabeth, would be dead without issue. So that the limitation over is not confined to a contingency, to happen or not to happen during the life of the wife, and to be determined by her death.

It is true, that the expression “dying without issue," has two significations:

1st. A common and natural sense; and that is dying without leaving issue at the time of the death.

2ndly. A legal sense; and that is a failure of issue. In this latter and legal sense, the counsel would have us to understand the words used by the testator. Dunlap.

To do this we must: 1st. substitute very plain expressions in the will, for another form of expression. 2nd, we mass violate the plain intention of the testator. 3rd, we must violate the rules of construction.

A devise to one “during her life, and at her death, leaving no lawful issue, then I will,” &c. the remainder over has but one meaning, and the instant of her death, the contingency is fixed.

An express estate shall not be destroyed to enlarge another by implication.

If words bear a lawful and an unlawful signification, the former shall be preferred.

1st. There is a wide difference between “dying without issue” or “dead without issue,” and the expressions used in the will, “during her life, and at her death, leaving no lawful issue, then, I will,” &c. “During her life, and at her death”—“then I will.” &c do not embrace a continued and indefinite lapse of time after her death, for the happening of the event. The instant that she died the fate of the contingency was determined

2ndly. To run those expressions, “during her life, and at her death, leaving no lawful issue then.” into an indefinite and after continuing time, would violate the very plain words and intention of the testator. He has said that his wife shall enjoy the property “during her natural life, and at her death, leaving no lawful issue, then,” &c. To what time does “then” refer? It is in vain to endeavour to alter the sense by putting a hiatus between “issue” and “then,” or by putting a comma in writing, between “issue” and “then;” the will of the testator refers to one period only by the word “then,” and that period is “at her death, leaving no issue then,” The sense and meaning does not depend upon the tail of a comma, or the placing it before this word “then,” or after it.

3rdly. The testator has expressly given to his wife an estate during her life only. To enlarge that estate by implication, made out of the words by which he expresses his further devise over to the Howes, would be against the rules of construction: 1st, by implication to destroy an express estate, which shall not be done. As, where the testator devised his estate to A. for life, remainder to his first son, and so to every other son in tail male, and for want of issue of A. remainder over: this was not an estate tail in A. by implication. Bamfield vs Popham, 1 Pr. Wms. 54; and many others there cited.

But if must be remembered that the law will not permit an estate tail to be limited of a slave or slaves; in that respect the statute places them on the footing of chattels personal. To construe the words, “at her death, leaving no issue, then I will.” &c. after an express estate for life, into an estate tail by implication, would be to defeat the lawful intention of the testator, by converting it by implication, into an unlawful intention.

Same words in different parts of a will may be given different constructions, that the operation may be lawful and all have effect.

Conclusion.

To prevent such an effect and destruction, the same words in the same will have been construed differently, according to the subject matter of the devise, touching the realty and personalty. In Forth vs Chapman, 1 Pr. Wms. 667—668. the case was, Walter Gore devised his leasehold estate to William and Walter Gore, and the remainder of his estate and all his goods and chattels, to his nephew, William Gore; and “if either of his nephews, William or Walter, should depart this life and leave no issue for their respective bodies,” then he gave the said leasehold premises to the daughter of his brother William Gore, and the children of his sister Sibley Price;” and the question arose, whether the limitation over of the leasehold premises, to the children of his brother and sister was void, as too remote. And it was determined that “the same words as to the freehold, should to taken in their legal sense, a failure of issue generally; but as to the chattel interest, the words “depart this life, and leave no issue for their respective bodies, then he gave,” &c should be understood in the “common and natural” sense, without leaving issue at the death, and not in the legal sense, a failure of issue at any future time: because such understanding of the testator would make his devise of the chattel interest to the children, good. And in accordance with this, many other cases are given in the note to it. It is common for the same word to have the same significations, the one or the other.of which is applied according to the subject matter of the discourse. So dying without issue, or leaving no issue, may mean differently, when applied to a devise of a freehold of inheritance, or to a chattel.

To construe the express devise to the wife during her life, into an estate tail, by implication, and the words "at her death, leaving no lawful issue," into the legal sense of a general and indefinite failure of issue at any future day, would be doing violence to the intention of the testator, and the rules of construing wills.

Mayes aud Crittenden for appellants; Wickliffe and T. A. Marshall for appellees.

The petition is not granted.  