
    *Griffith v. Thomson and Others.
    June, 1829.
    (Absent Brooke, P., and Cabell, J.)
    Wills — Executory Limitations — Case at Bar. — G. T. having- three legitimate children and a natural son. by his will in 1803, makes provision for each, and then adds: In case all my children by my wifetiie without heirs, my natural son C. shall fall heir to my whole estate; and in case he also die without heirs, my estate shall be divided into six parts, and 3-6ths shall go to my father’s brothers-that are alive, and the heirs of those that are dead, receiving no more among them than my father’s brothers would have received had they been living; 2-6ths to go to C. Leland, S. Leland, L. Leland, H. Gaskins, and T. Legg; and the other 6th to go to my wife, to be disposed of as she may think proper; but my wife is to have the use of the whole as long as she lives, if all her own children die without issue: Two of the testator’s legitimate, children, and his natural son, die without leaving issue: his legitimate daughter, E. G. T. survives all her paternal uncles, the three Lelands, H. G. and T. L. and the testator's wife: and then dies without leaving issue:
    Same — Same,—Held, as to the personal subí ect, that the executory bequest thereof, after the death of the natural son without heirs, was void In its creation; and that E. G. T. was entitled to the whole in absolute property.
    George Thomson of Westmoreland, made his last will and testament in 1803, and shortly after died. At the time he made his will, he had two children by his wife, a son Thomas, and a daughter Elizabeth Griffith Thomson, and a natural son called Charles-Thomson, alias Briarly; and his wife was pregnant of a child, who was born after the will was made and before the testator’s, death, and called George. All these children, and the testator’s wife, survived him.
    The testator by his will made divers devises and bequests of land and slaves to his son Thomas, to his daüghter Elizabeth Griffith, to his natural son Charles, and to-the child his wife was pregnant with, the expectation of which occasioned a great many alternative provisions in case it should prove a son or a daughter: but the-lands and slaves were in every devise, given, in the first instance, to the devisee and his or her heirs forever; and then, he annexed to these devises, a string of limitations, all to the like effect, that in case either devisee should die without heirs, the property '’’given to him or her, should pass to one of his other children, or should be divided among them in a manner prescribed. And then followed an ulterior limitation in these words: “It is my will and desire, that in case all my children by my wife, should die without heirs, that my son Charles Thomson aliasBriarly, shall fall heir to the whole of my estate: and in case he should also die without heirs, it is my desire that my estate be divided into six parts, and that three-sixths go to my father’s brothers that are alive, and the heirs of those who are dead, receiving no more among them than what my father’s brothers would have received had they been living; two-sixths to go to Charles Eéland, Sally Leland, Lucy Leland, Harry Gaskins and Thomas Legg; and the remaining one-sixth to go to m3r wife, to be disposed of as she may think proper — but my wife is to have the use of the whole as long as she lives, if all her own children die without heirs.”
    The testator’s widow, his sons Thomas and George, and his natural son Charles, all died before his daughter Elizabeth Griffith Thomson ; who also survived Charles, Sally, and Lucy Leland, Harry Gaskins, Thomas Legg, and all the brothers of her father’s father. She died in 1824, and by will gave almost all her estate to Sally W. Griffith, the appellant, whom she also appointed her executrix.
    A bill was exhibited, in the superiour court of chancery of Fredericksburg, by a surviving child of one of the brothers of the testator George Thomson’s father, who ■died before the testator, and by the personal representatives of another child of the same brother; of the other brothers of the testator’s father who survived him; of the testator’s widow; of the three Lelands; of Gaskins and of Legg, against Sally W. Griffith, legatee and executrix of Elizabeth G. Thomson; setting forth the will of the testator George Thomson, as well as that of his daughter Elizabeth, and all of the facts, as above stated ; claiming all the personal estate of the testator George Thomson, which had come to the defendant’s hands as executrix of the daughter, under *both wills; and praying an account of profits &c. The answer of Sally W. Griffith admitted all the facts alleged in the bill, but contested the plaintiffs’ claim to the property. The chancellor held the executory devises well limited as to the personal property, and decreed for the plaintiffs according to the prayer of their bill. The defendant appealed to this ■court.
    Leigh and Wickham, for the appellant.
    The case turns wholly on that clause of Mr. Thomson’s will, which contains the last set of executory limitations: no other part of the will has any bearing on the point in controversy. The limitations (under which the appellees claim) of the '"‘whole estate” to the testator’s natural son, in case his legitimate children “should die without heirs,” and of the “estate” over to others, in six portions, in case the natural son “should also die without heirs,” are both void in their creation, as being limited on too remote contingencies, unless there be some expression used, or some circumstance indicated, in the will, which the court can lay hold of, to tie up the generality of the expression dying without heirs, and confine it to a failure of heirs within the period allowed to executory bequests.
    The ulterior limitation, after the dying of the natural son without heirs, gives three-sixths of the estate to the testator’s father’s brothers that are alive, and the heirs of such as are dead (to take per stirpes) ; two-sixths to the three Lelands, Harry Gaskins and Thomas Legg, not to them and their heirs; and the other sixth to the testator’s wife, to be disposed of as she may think proper. And it may perhaps be thought, at the first view, that the limitation over, being to the Lelands and others, by name, without any words of perpetuity, is within the principle, on which the ex-ecutory bequest was held good in Timber-lake v. Graves, 6 Munf. 174. But the authority of that case cannot govern the decision of this. In that case, specific property was given to the devisee over, after the failure of issue of the first taker, ^without words of perpetuity ; and the court supported the executory bequest, on the ground, that it was made to the ex-ecutory legatees themselves, and was intended as a personal benefit to them, since nothing was given to their heirs or representatives. But, in this case, the devise over is of the estate and of the whole estate; which is fully equivalent to a devise to them and their heirs, and certainly carriers the whole interest; as was determined, in a case of real estate, in Goodrich v. Harding, 3 Rand. 280. Much more ought it to be so determined in a case of personal estate. Besides, the principle on which Timberlake v. Graves was determined, though it has been followed by several cases in this court since, is very questionable at least, if not plainly wrong. It was never before affirmed: it was supported by no authority : it was contrary to many, very many, previous adjudications, and to the whole doctrine of executory limitations of the kind. In particular, it was considered and condemned by Mr. Fearne, in his commentary upon the case of Keily v. Fowler: he says, “as to any thing that might be inferred from the devise over to the sister’s children being intended as a personal benefit to them, as much may in all cases be inferred from a devise over to any relation or other person; and therefore seems to be of no weight.” Butler’s Fearne, 483.
    The provision, in this will, that the wife should have the use of the whole, as long as she should live, if all her own children should die without heirs, might have led to the construction on which the chancellor has founded his decree, if it had stood alone, and if the testator had only given the whole property'to her for life, though, in the actual event of her death before her children, she could have taken nothing by it. But the devise to her for life, being connected with the devise of five-sixths to others and one-sixth to herself, in absolute ownership, the devise of the life eslate to her in remainder, cannot alter or affect the construction of the previous devises. Her life estate is only a part of the fee or absolute property, and is given over to her on the failure *of issue of the children : and, as her dying in the lifetime of her children, would not have rendered the devise over to the natural son, after failure of issue of the legitimate children, or the devise over to the others, in portions, after failure of heirs of the natural son, ineffectual as to the devisees in remainder, if those devises had been in themselves well limited; so neither can it have the effect of abridging the interests given to the testator’s legitimate children in the first instance, and, failing issue of them, to his natural son.
    But, if it be conceded, that the limitation of the estate, after the dying of the children without heirs, to the three Lelands, Gaskins and Legg, without any words of perpetuity, was intended as a personal benefit to them, and therefore, the dying of the children without heirs, on which the limitation depends, imports not an indefinite failure of their heirs, but a failure of heirs during the life of some one or more of those devisees in remainder; or, conceding that the limitation of a life estate to the wife, after the dying of her own children without heirs, shews that the contingency in the testator’s mind, was a failure of heirs of the children living the wife: this would only prove, that the contingency of the failure of heirs of the children was restrained to a failure of their heirs within the compass of a life o| lives in being, and that, therefore, these executory devises were good in their creation; not, that they are effectual in the event that has actually happened. The executory devisees cannot resort to these circumstances, for the mere purpose of restraining the generality of the contingency within a reasonable compass, and, that purpose answered, discard all farther consideration of them: they are, surely, as influential in ascertaining the precise event in the testator’s mind, upon which he intended to limit his estate over, as in ascertaining that the event intended was one which could only happen, if at all, during the lives of the devisees in remainder. They ascertain, that the testator intended to given his estate over to his natural son, only in the event of his legitimate children dying without heirs living his wife, and to the others, *only in the event of all his children dying without heirs during the lives of the three Gelands, Gaskins and Gegg, or some of them. And, then, if these executory devises were good in their creation, they fail of effect, because the events on which they are limited have not happened. The testator’s children have not died without heirs living his wife, or living the three Gelands, Gaskins and Gegg, or any of them: his daughter Elizabeth survived them all.
    Stanard, for the appellees.
    The case of Timberlake v. Graves was decided by this court (as it tells us) upon consideration of the authorities affecting the question ; and the principle, there laid down, has been repeatedly recognized and followed in cases since decided. Greshams v. Gresham, 6 Munf. 187; James v. M’Williams, Id. 301; Didlake v. Hooper, Gilm. 194. It is as well settled as a series of adjudications of this court can settle any principle. Counsel have been guided by it, in advising parties concerning their rights under executory bequests of personal property: claims have been asserted or surrendered, acquiesced in or adjudged, in conformity with it. Nor was the principle any otherwise new, than the principle of every case was new, in which an executory devise has been held good, upon its own peculiar circumstances, varying from the circumstances of any former case of the kind. There is an infinite variety in the language of wills; and the courts have been always studious and astute to find, and have been continually finding, new circumstances to support ex-ecutory limitations of personalty, and thus to give effect to testamentary intention; and have been, in this sense, continually asserting new principles; yet those principles, far from being ever after objected to, on the ground of their novelty, have been immediately, and indeed eagerly, received. The principle of Timberlake v. Graves is also reasonable'in itself: for it only serves to extricate executory limitations from the influence of technical rules of'construction, which almost universally lead to a result contrary to the known intent; and to enable *the court to give effect to such limitations, when no wise repugnant to the policy of the law, according to the real sense of the words in the acceptation of the authors of them.
    As to the diversity that has been suggested, between the circumstances of Timberlake v. Graves and those of this case, namely, that there, specific chattels were limited over to persons in being, without any words of perpetuity, whereas, here the whole estate is limited over, which carries the whole interest as effectually as if words of perpetuity had been added: in the first place, it cannot be pretended, that the same diversity exists between this case and that Of Greshams v. Gresham; in which the testator gave “the balance of his estate to his brother Isaac, and in case he should die without issue, to be equally divided between this uncle J. G.’s children,” naming them; and the executory bequest to the uncle’s children was held good. In the next place, in cases of limitations over, after a dying of the first taker without issue, the sole object is to ascertain, from the whole will, whether the contingency of the failure of issue, in the testator’s mind, be an indefinite failure of issue, or a failure of issue within the period allowed to executory devises; and if it appear, that in making the executory limitation, the testator intends a personal benefit to individuals then living, it follows, that, in his apprehension, the contingency on which he designs them that benefit, is one that is to happen during their lives; that the dying of the first taker, in his contemplation, is a dying without leaving issue. And then, it can make no odds, what is the extent of the benefit, or quantity of estate, intended for the devisees in remainder.
    When the testator, George Thomson, said, “my will is, that in case all my children by my wife should die without heirs, my son Charles Thomson alias Briarly shall fall heir to my whole estate;” had he in contemplation, the failure of heirs of his legitimate children, at any distance of time, however remote? When he said, “and in case he (his natural son) should also die without heirs,” his estate should go '-over, in portions, to the persons who and whose representatives are now claiming it; had he in his mind, the indefinite failure of heirs of the natural son? These are the questions. If he did not contemplate an indefinite failure of heirs of his children, in either limitation, he must be understood to have intended (for there is no middle ground) a failure of their heirs living at the death of them respectively; and then the executory devises are good and effectual.
    He surely did not intend the indefinite failure of the heirs of his legitimate children, as the contingency on which the estate was to go over to his natural son: for he gives a life estate in the subject to his wife upon the same contingency; which he intended should take effect before the limitation to the natural son; thus plainly evincing, that the failure of issue he had in contemplation, was one that was to happen while his wife was living. He did not intend the indefinite failure of the heirs of his natural son, as the contingency on which the estate was to be divided into six parts, and to go over to the ulterior devisees, in portions: for he made this ulterior devise for the personal benefit of the Gelands, Gaskins and Gegg, and therefore contemplated a failure of issue of his children during the lives of those whom he wished to enjoy the estate, upon the principle of Timberlake v. Graves.
    It being thus ascertained, that the events of his children dying without heirs, in the sense in which this testator used the phrase in these executory limitations, was not an indefinite failure of issue, and consequently was a failure of issue at the death of the previous takers, the executory bequests, limited upon those contingencies, are good and effectual; and, as possibilities of this kind are transmissible to representatives, it is wholly immaterial, that the persons, out of regard to whom the testator framed the executory devises, have died before the events happened, upon which he intended they should vest.
    
      
      Wiils — Executory Limitations. — On this question, the principal case is cited in foot-note to Dunn v. Bray, 1 Call 338; foot-note Higgenbotham v. Rucker, 2 Call 313; Deane V. Hansford, 9 Leigh 257, 259, 260, and note; Callava v. Pope, 3 Leigh 106: Nowlin v. Winfree, 8 Gratt. 348; Moore v. Brooks, 12 Gratt. 150. See monographic note on “Wills.”
    
   *CARR, J.

This is another of that numerous class of cases, where the

contest is between the alienee, heirs or devisees, of the first taker, and those who claim under a subsequent limitation, as executory devisees. In the cases of Goodrich v. Harding, 3 Rand. 280; Bell v. Gillespie. 5 Rand. 273; Broaddus v. Turner, Id. 308; Ball v. Payne, 6 Rand. 73, heretofore decided, I have given my opinion on this question generally, with the reasons and authorities on which it was founded. These, I shall not repeat, but will simply inquire, whether, and in what degree, the principles governing those cases, where land was devised, apply to the present, where the subject claimed is personal estate.

In the early ages of the law, there cciuld be no limitation over, after an interest given in personal estate, the rule being, that a gift for an hour, as to it, was a gift forever: but this has long been changed; and it is laid down by Mr. Pearne, as settled by numerous decisions, th,at there may be as well an executory bequest of personal, as an executory devise of real estate. They are governed too, by the same general rules. Thus, in either case, the devise must be such, that in the very nature of the limitation it must vest within twenty-one years, after a life or lives in being; if more remote, it is void in its creation: and the question, whether the contingency be too remote, depends on the construction of the will at the time of making, and cannot be influenced by after events. The possibility, at the creation of an executory devise, that the event on which its existence depends, may exceed the prescribed limits, vitiates it from the very beginning. Hence, in all limitations over, after a failure of issue, the question arises, whether it be a definite or indefinite failure, which the testator intended. If a precise time is fixed and clearly defined, and that time be within the prescribed limits, the limitation over is a good executory devise: but if from the whole will it appear, that the testator meant to give it to the first taker and his descendants, and that the limitation over should take effect only when the issue of the first taker should become extinct, without reference *to any particular event or time, then the devise is void, though the first taker should die without issue within twelve months. Thus, a devise to A. and his heirs, and if he die without heir, or without heir of his bodj', or without issue, to B. and his heirs: the devise to B. is void, as being too remote. But a devise to A. and his heirs, and if he die without heir living at his death, or without heir living B. then to B. and his heirs, is a good limitation over to B. ; because it must vest, if at all, within the time allowed. And, although the failure of issue be not tied up to the death of the first taker, by express words; yet if it can be clearly seen from the whole will, that such was the meaning of the testator, the devise will be good. Upon this question of intention, the courts seem to have taken some distinction between executory devises of real, and bequests of personal estate; being much more inclined in the latter, than in the former, to lay hold of any -words in the will, to tie up the generality of the expression dying without issue, and confine it to dying without issue living at the death of the first taker. Mr. Pearne, in his essay on executory devises (Butler’s edi. ch. 3), treats this subject with his usual learning and abilitj': and after citing and commenting upon all the cases touching the points, his conclusion seems to be, that the words dying without issue, when they stand alone, mean an indefinite failure of issue, and make the devise over, whether of reality or of personalty, too remote; but that the signification of these words, in bequest of personal estate may be confined to a dying without issue then living, by any clause or circumstance in the will, which can indicate or imply such intention. After all, then, it is a question of intention.

The testator, in this case, had two sons and a daughter by his wife. To these he gives real and personal estate, to them and their heirs, and if they die without heirs, he gives the property first to one of them, and then to the other, so as to shew, that by heirs he meant issue; making it to each an estate tail. It is most clear to me, that in each of these ^devises, he meant that the first taker should have an estate transmissible to his descendants, so long as any existed; and that, whenever the line of the first taker should fail, the property should go to the second taker, without reference to the time of such failure. I think thus, because this is the very nature of such estate as is given ; an estate tail necessarily implying issue, in indefinite succession: and as it is given to the first taker, so long as he shall have descendants, we cannot suppose it was intended to limit the commencement to the estate of the next taker, to an earlier period, without words to that effect. Thus, it seems to me, that each of the legitimate children took an estate tail, which the statute enlarged into a fee. Then, as to the natural son, the testator gives him, two negro boys, two negro girls, and their future increase, to him and his heirs forever; and if he die without heirs, he gives the negroes among his legitimate children. I see nothing in the will tying up this bequest to a dying without issue living ?t the death. Then comes the clause under which the plaintiffs claim : “in case all my children by my wife should die without heirs, it is my. will, that my son Charles, shall fall heir to the whole of my estate.” By these words, ‘'if all my children by my wife should die without heirs,” it seems to me, that (recollecting the manner, in' which the testator uniformly uses the word ‘heirs’) an implied estate tail is given to each of his lawful children in his whole estate, and then a fee simple to Charles, by the words “my son Charles shall fall heir to the whole of my estate.” But this fee is cut down, I think, by the next clause (the testator by heirs always meaning issue): “And in case he (Charles) should also die without heirs, it is my desire, that my estate be divided into six parts,' and that three-sixths go to my father’s brothers that are alive, and the heirs of those who are dead, such heirs receiving no more among them, than my father’s brothers would have received had they been living, &c. ” Now, it seems to me impossible to doubt, that the intention here was to give this estate to the family of Charles, as long as there should be *any descendant of ■ his in the lapse of time. Nor can I think the testator meant, that unless his father’s brothers, and the other devisees, could take at the instant of the death of Charles, they should never take; that if Charles should have a child which should die the next hour, this should defeat all the limitations over in that clause. I must think he meant that whenever the issue of Charles failed, his uncles and the other devisees should take; and this we know, was a contingency too remote. The plaintiffs acknowledge this to be the case as to the real estate, by making no claims to it; and it is clear to me, that the intention as to both was the same.

The cases of Timberlake v. Graves, and Gresham v. Greshams, 6 Munf. 174, 187, were cited as governing this. Judging from the reports of these cases, they underwent but little discussion, either from the bar or the bench. Understanding them as the counsel did, I acknowledge I cannot see clearly how they are to be reconciled to the otherwise unbroken current of decision, both in England and here; yet they do not profess to overrule or depart from the former cases. In Timberlake v. Graves (which governed the other) there was a devise of slaves and their increase, “to my beloved nephew, J. A. and his heirs forever ; and if he die without heir, then and in that case, what I have given him, to be equally divided between my two nieces, M. A. and P. A.” The first taker J. A. sold one of the slaves, and died without issue. The executory legatees brought detinue against the purchaser. A special verdict stated these facts, and the court below gave judgment for the defendants. This court reversed it, and entered judgment for the plaintiffs. Jqdge Roane, who pronounced the opinion of the court, assigned the following reasons: “the ground on which the opinion of the court is founded, is, that the devise over to the nieces, is to them merely, and not to them and their heirs. It purports a limitation to themselves, and was intended as a personal benefit to them. This construction is fortified by the words then and in that case, and equally to be divided, *found in the bequest; which, though singly taken, they might not be complete to limit the previous words, have that effect in conjunction with the circumstance above mentioned.” The ground here assumed, is, that the nieces took no estate transmissible to their representatives ; nothing but a life estate: that it was a personal benefit intended for them alone, which would be intirely defeated, if it did not take effect in their lives: and on this principle, it was considered as tying up the failure of issue to a life in being. If the court had believed, that the devise to the nieces carried the whole interest in the slaves, it must, upon its own ground, have pronounced it bad; for then it would not have narrowed the operation of the preceding words, which of themselves clearly meant an indefinite failure of issue. Taking the case thus, (and I can understand it no other way), it would seem to make against the plaintiffs in this case : since, if the devise here were intended solely as a personal benefit; if the interest it gave, was but a life estate; then, the contingency on which it was to vest, has never happened, for it was to take effect only after the death of all the testator’s children, and one of them outlived all the executory devisees. The same reply may be given to the proposition, that from the devise to the wife in this same clause, it is evident the contingency was limited to happen in her life: if this be true, the contingency has not and cannot happen, for the daughter Elizabeth survived her mother.

But, it seems to me, the devise to the testator’s uncles, was not a mere personal benefit: it is to those who are alive, and the heirs of those who are dead; and such heirs are to take no more among them than the uncles would, had they been living: When? Not at any particular period, but whenever the failure of issue should happen. Moreover, the devise (as was admitted at the bar) gives them the whole interest, the fee: this takes it wholly out of the influence of Timberlake v. Graves.

*GREEN, J.

The last member of the clause of Mr. Thomson’s will, on which this case depends, giving the testator’s wife the use of the whole of the estate for life, in case all her children should die without heirs, should, in its natural order, be read as occurring in the commencement of the clause, thus: “It is my will and desire, that, in case all my children by my wife, should die without heirs, she is to have the use of the whole of my estate as long as she lives, and that my son Charles shall fall heir, &c.” It is clear, that the word “heirs,” wherever it is used in this clause, means issue; that the expression used, in relation to the brothers of the testator’s father “who are alive,” meant such as might be alive upon the death without issue of all those who were to take before them; and that this expression was intended, not to prescribe as a condition upon which the limitation over was to take effect, that some one or more of them must be then alive, but the mode in which those alive, if any, and the descendants of those dead, or of all, if all were dead, should take; that is, per stirpes.

This, then, is a naked case of a limitation over after an indefinite failure of issue, unless the limitation’ being to persons in esse, without the addition of words of perpetuity, restrains it within the limits allowed to executory bequests: for, the interposition of an estate for life to the wife, between that of the first takers and the ultimate limitation has no effect in imposing such a restraint. The testator did not mean, that the death of the wife before the failure of the issue of the first takers, should defeat the other limitations over, or that her being alive at that time, should be a necessary condition to the right of those who were intended to take ultimately, upon the failure of the issue of the first takers: he only intended, that she should take the life estate, in the event that she was then alive. This was expressly held in Barlow v. Salter, 17 Ves. 479, in the case of personal estate; and the case of Clare v. Clare, Ca. Temp. Talb. 21, is to the same effect. There, the devise was of a term in trust for A. for life, and after his death for his issue xmale for life, and when the issue male should happen to be extinct, for C. for life, remainder in trust for the issue of C. for life, remainder to the issue male of the family of Clare: and it was held that all the limitations over, after the life estate of A. (he dying without issue in the lifetime of C.) were void, and a residuary legatee entitled.

There is no adjudged case in this court, which touches the question under consideration, except Timberlake v. Graves, and the other cases turning upon the same principle, and which followed that, in quick succession. Dunn v. Bray, 1 Call, 338, turned upon the word leave. In Higgenbotham v. Rucker, 2 Call, 313, the word issue was explained by the word children. In Pleasants v. Pleasants, 2 Call, 319, the devise of partial freedom was to persons in esse and their immediate descendants: Yet the court established a perfect perpetuity, and allowed the will of a testator to determine the condition of their descendants forever; slaves until a given age, and afterwards free; a partial slavery once allowed, but before that will was made, abolished by our laws. And in Royall v. Eppes, 2 Munf. 479, the quality of the property bequeathed decided the cause; slaves which came by the wife, to return to her in person, without embracing their issue or increase.

In Timberlake v. Graves (decided March 1818) the limitation over to particluar persons, without words of perpetuity, was held to restrain the dying without issue, to the period of their lives; as purporting a limitation to themselves, and intended as a personal benefit to them. But the court did not rely upon that circumstance alone: they considered the words then and in that case, and to be equally divided, as aiding that construction, although singly taken they might not be complete to limit the previous words. This effect attributed to those other words, had some countenance, though perhaps was not justified, by the case of Pinbury v. Elkin, 1 P. Wms. 563, where the words then after her decease, were held to tie up the event upon which the limitation over was to take effect, to a dying without issue then living;

*and Doe v. Lyde, 1 T. R. 593, in which the words, to the children share and share alike, and if he die without issue then over, was held to have that effect. In Gresham v. Greshams (October 1818) the limitation over to particular persons, without words of perpetuity, was connected with a direction that the subject should be equally divided between them. Then followed the case of James v. M’Williams (February 1819) in which there was no circumstance, except the limitation over without words of perpetuity, to determine the construction; and the limitation over was held to be good. In the case of Didlake v. Hooper, the bequest to A. for life, and if he have issue, to them at his death ; and if he should die without issue, to two, by name, without words of perpetuity: there, the limitation over might be construed to be intended to take effect, only upon a dying without such issue as could take at the death of the first taker, who took only for his life. In the reports of these cases, we have none of the arguments of counsel: indeed, none of them, except the first, appear to have been argued: all the others, except perhaps the last, must have been decided upon the authority of the first, and upon the admission, that that proceeded upon the ground, that a limitation over after the failure of issue, without words of perpetuity, was good, without the aid of any other circumstance.

This doctrine was, for the first time, asserted in Timberlake v. Graves; and, so far from being supported by any insinuation in any prior case, is expressly contradicted by great numbers. In Bigge v. Bensley, 1 Bro. C. C. 187; Glover v. Strothoff, 2 Bro. C. C. 33, and Robinson v. Fitzherbert, Id. 127, we have the very words of the wills ; and in the last, an equal division was also directed. The limitations were held to be too remote, although the circumstance under consideration occurred in all of them. The counsel, in those cases, did not even suggest, that it was entitled to any weight, nor has it ever been suggested in any of the multitude of cases to the same effect, which *might be cited. Heither is it reconcileable with the general principle of executory bequests. The settled rule, frequently recognized in this court, is, that to the validity of an executory devise or bequest, it is necessary, that it be so framed as to shew, that the testator intended it should not take effect, unless the event, upon which it was to do so, was such as must necessarily happen, if at all, within the period allowed by law. If a devise over for life only, be good, it is because it cannot take effect at all, unless the failure of issue take place in the lifetime of the devisee, who is to take a life estate in that event. But a contingent limitation of personal estate, without words of perpetuity, always gave as absolute a right, as if given with words of perpetuity; an interest, which, before the contingency happens, is vendible, deviseable and transmissible to the representatives of the devisee. Fearne, Butler’s edi. S48, S52. Upon what ground, then, can the presence or absence of words of perpetuity, make qny difference in the 'construction? It is said, because the want of such words indicates the state of the testator’s mind, and that he contemplated the probability that the event might or would take, place in the lifetime of the party designated to take in that event. That must necessarily be in his contemplation, in all possible cases: but that alone is not enough to make the limitation good: he must also intend, that the limitation over shall not take effect, unless the event does happen in the lifetime of the party; or it is void.

The only ground, upon which the cases of Timberlake v. Graves, and those that followed it, can be supported, is, that the omission of words of perpetuity proves, that the testator intendea that the limitation should not take effect, unless the failure of issue happened in the lifetime of the person designated to take in that event: otherwise, the legal restraint upon perpetuities is utterly abrogated, and a testator may controul his property ad infinitum, by limiting it to some person, or a succession of persons, in esse, after a general failure of issue, without words of perpetuity; in which case,* upon a failure of issue after many generations, the limitation being good in its origin, his remote executors or administrators will be entitled, for the benefit, first, of his creditors, and then of his descendants or collateral kindred. This we cannot suppose the court intended, by the decisions in those cases; and they are not authority for the case at bar, as all those intended to take upon the failure of the first taker, died in his lifetime: otherwise, this absurdity would follow, that the limitation being valid, because the testator intended only a personal benefit to the executory legatee, his executors, and through them, his creditors, may take it in the event in which it was impossible for him to take or enjoy the personal benefit intended; and that the testator, intending that the bequest should not take effect, unless the legatee were alive when the event happened, yet his right to take exists, and is transmitted to his personal representative, though the event has not happened in his lifetime.

If I am wrong in this, there is another ground, on which all the limitations over, in this clause of the will, were clearly void. That to the testator’s natural son, which preceded all the others, was accom'panied with words of perpetuity: if all the other children died without heirs, he was to fall heir to the whole estate; and if he died without heirs, then over to those now claiming. These words give him, upon the expressed intention of the testator, as absolute an estate, as if the gift had been to him and his heirs in terms. So that the limitation over to him, upon a general failure to issue, was clearly- void. And, when a preceding limitation is too remote, all that succeed it, even although limited to take effect in good time, are defeated. Thus, in Proctor v. Bishop of Bath and Wells, 2 H. Blacks. 358, a devise to the first or other son of T. P. (he having none) that should be bred a clergyman and be in holy orders, and to his heirs and assigns, but if T. P. shall have no such son, then to his grandson T. M. and his heirs: T. P. died without ever having had a son; and it was held, that the first limitation over was too remote, as none could take holy orders until the age of twenty-four, and as T. P. might have a son born a short 339 *time before his death, who might take holy orders at the age of twenty-four, which would be beyond the fixed limit of executory devises; and that the devise over was, consequently void also. The same principle is affirmed in Chatham v. Tothill, 7 Bro. P. C. 453; Tomlins’ edi.

One word as to the influence, which our statute of 1819, prescribing the construction of future limitations after a failure of issue, ought to have upon our judgment, in cases like this. Elizabeth G. Thomson had, as the law was clearly settled when her father made his will, and her mother and brothers died, an absolute right to the property in question, with an unlimited power to dispose of it at her pleasure. Surely, it is too much to say, that the court should now deprive her devisee, or purchasers from her, of those vested rights, because the legislature has changed the law, even if that was done in consequence of an opinion, that the courts had given an improper construction to the effect of such limitations. Those constructions, right or wrong (and I think, they were founded in sound principles of public policy and private convenience) had fixed the law, and gave rights, which, like all others, should be held sacred.

COALTER, J.,

concurred in opinion with the other judges, that the executory bequest, under which the appellees claim the property in question, was limited upon a failure of issue of the first takers, not restrained bjr any expression in the will, or by anj' circumstance indicated in it, to a failure of issue within the limits indulged to executory devises; a general, indefinite failure of issue. Therefore, the limitation was void in its creation. It was so, in respect to the real estate, clearly and acknowledgedly: and, as the executory bequest of the personal estate, was limited over in the same words with the executory devise of the real, and was intended to take effect at the same time, upon the same contingency, upon the same failure of issue, the executory bequest of the personal subject was also ineffectual.

Decree reversed, and bill dismissed.  