
    BETHEA’S EXECUTOR vs. SMITH.
    [detinue Bob suave.]
    1. Bequest to “heirs," toith limitation oner in event of death “without leaving lawful issue.’’ — Under a devise and Request of property “ to Re equally divided among my Reirs,” "and in tRe event of tRe deatR of eitRer, witRout leaving lawful issue,” Ris portion, “to Re equally divided among tRe surviving Reirs,” tRe limitation over is not too remote.
    
      2. Assent to legacy. — WRere property is devised and RequeatRed Ry a testator, to ‘Re equally divided among Ris Reirs’, ‘and in tRe event of tRe deatR of eitRer, witRout leaving lawful issue, tRat Ris portion shall revert to, and Recome a portion of tRe estate, and Re equally divided among the surviving Reirs’, tRe executor’s assent to tRe legacy to the first taker enures to the benefit of the persons who are to take under the limitation oyer; and on the happening of the specified contingency, the legal title passes direetly to them, and does not revert to the estate.
    Appeal from the Circuit Court of Wilcox.
    Tried before the Hon. Jno. K. HenbY.
    This action was brought by Abijah Miller, as executor of the last will and testament of David Bethea, against Malcolm W. Smith, to recover a negro woman by the name of Zena, together with damages for her detention; and was commenced on the 8th September, 1860. The plaintiff claimed the slave under the sixth clause of the testator’s will, which is copied in the opinion of the court; while the defendant claimed under a purchase from John W. Bridges, whose wife, Mrs. Elizabeth Bridges, was a daughter of said testator. It wa,s admitted that, on a division of the property, in 1847, under the sixth clause of the will, the slave was allotted to Mrs. Bridges, and continued in the possession of herself and her husband until sold by the latter, during the life of his wife, to the defendant; and that Mrs. Bridges died, in October, 1858, “leaving no child.” The court charged the jury, “that under the provisions of said will, Mrs. Bridges took an absolute estate in the slave, the remainder over being too remote, and that the plaintiff could not recover in this action.” The charge of the court, to which the plaintiff excepted, is the only matter assigned as error.
    Pettus & Dawsoh, for appellant.
    The words “ without leaving lawful issue,” in the sixth clause of the will, are a limitation to issue living at the death of the first taker; and the words “surviving heirs,” in the same clause, have the same effect. In executory devises of personal property, the courts will struggle to limit such general expressions, and confine them to issue living at the death of the first taker. — Eearne on Remainders, (4th Amer. ed.,) m. p. 472; ■ Peale v. Pegden, 2 Durn. & East, 720; Porter v. Bradley, 8 Durn. & East, 143; Doe v. Jeffrey, 7 Durn. & East, 589; Oudworth v. Thompson, 3 Dess. 256; Anderson v. Jackson, 
      16 Johns. 382; Flinn v. Davis, 18 Ala. 132 ; Isbell v. Maclin, 24 Ala. 315; Roberts and Wife v. Ogbourne, 37 Ala. 174; Bed and Wife v. Hogan, 1 Stewart, 536.
    S. J. Gumming, contra*
    
    1. The limitation over is void, because it is repugnant to the prior absolute gift. — Moody v. Walker, 3 Ark. 188, and cases there cited; Patterson v, Ellis, 11 Wendell, 299, and cases cited; Flinn v. Davis, 18 Ala. 132.
    2. The limitation is void, also, for remoteness. — Burford v. Lee, Freeman’s Chan.' Cases, 210; Campbell v. Harding, 2 Russ. &. Mj. (13 Eng. Ch.) 90; 8. C., 2 Clark & Fin. 421; 1 Madd. 264; 6 Brown’s P. O. 450; Moody v. Wallcer, 3 Ark. 187; Patterson v. Filis, 11 Wendell, 259; Flinn v. Davis, 18 Ala. 132; Mason v. Pate's Executor, 34 Ala. 379 ; Parish v. Parish, 37 Ala. 591.
    3. By statute in this State, (Clay’s Digest, 157, § 37,) estates-tail are converted into estates in fee; and the same rule applies to personal, as to real estate. — 12 Wheaton 568; 18'Ala. 132; 34 Ala. 379.
   BYRD, J.

The appellant, as executor of the last will and testament of David Bethea, deceased, instituted this suit, to reepver of the appellee a slave, and predicated his title upon the will, the sixth clause of which is in these words: “ It is my will and desire, that all the residue or remainder of my property, both real and personal, be divided equally among my heirs, my wife excepted, whose portion has already been set apart; and in the event of the death of either, without leaving lawful issue, that their portion of my estate herein bequeathed shall revert to, and become a portion of my estate, and be equally divided among the surviving heirs.”

The record shows that the slave sued for was received by a child of the testator, in 1847, upon a division of the property bequeathed by the above clause of the will; and that she afterwards died, leaving no child.” A person may die “ leaving no child,” and yet leave issue. But taking the word “ child ” in the sense of issue,” without intimating that such is its meaning, we will proceed to the consideration of the main question presented bj the bill of exceptions.

The appellee contends, that tbe limitation over in the event of the death of the first taker, “without leaving lawful issue,” is void, and that the first taker took an absolute estate in the slave. This question has been discussed with great learning in the books, and many adjudications have been made upon it, variant and conflictive. We do not propose to enter upon a review of them. Many difficulties have arisen, and great nicety of discrimination is required, in the correct application of the rule in Shelley’s case, and the rules of law with reference to executory bequests and. devises, perpetuities, and fees conditional, to testamentary limitations of real and personal property.

At common law, an estate in fee to land could be limited upon an estate in fee to the same, by way of executory devise. By the ancient common law, an absolute estate in personalty could not be limited upon a life-estate therein, much less upon a prior absolute estate. But; in the progress and expansion of the principles of the common law, to accommodate themselves to the advancing dignity of personal property during the last millennium, the courts, where the common law prevailed, have ceased to make any material distinctions between limitations over of real and personal property, except as to fees conditional, or estates-tail, if either can be strictly denominated a limitation. It may be that a limitation over of some species of personalty may not be authorized by law, when, if it were of land, it would be. We state only a general rule, and not the exceptions, if any. Our recognition of the rule is sustained by the following authorities: Keyes on Chattels, ch. 2, § 23, and post; Flinn v. Davis, 18 Ala. 132; Jemison v. Smith, 37 Ala. 185; and see the authorities cited by Chancellor Keyes, in his very learned and critical work on the Law of Chattels, ch. 2; and by the court in the cases cited.

In this case, it may be that an absolute estate is given to the first taker; but, if so, it is defeasible upon a contingency expressed in the will; and that is, the dying of the first taker without leavingdssue; and on the happening of this contingency, tben over. This is now tolerated by the law, if the persons who take the second estate are designated, and can take as purchasers. The words “my heirs,” and “the surviving heirs,” in the above clause of the will, are not words of limitation within the meaning of the rule in Shelley's case, nor has that rule any application to this case. The meaning of those words may be ascertained, so far as the law can do so on the face of the will, by the principles settled in the following cases : Flanagan v. The State Bank, 32 Ala. 508; Shackleford v. Bullock, 34 Ala. 424; Williams v. McConico, 36 Aa. 28; Jemison v. Smith, 37 Ala. 185, and the authorities cited in the above cases.

The words, “in the event of the death of either without leaving lawful issue ”, refer to the persons who take under the words “ my heirs ”, and do not import an indefinite failure of issue, but issue living at the death of each of the first takers, or not then in existence. If any, the limitation over does not take effect; if none, it does take effect. The rule against perpetuities is not infringed by this clause of the will. — Roper on Legacies, 1546; Flinn v. Davis, (supra,) and authorities cited in the very able opinion of Chief-Justice Dargan; Powell v. Glenn, 21 Ala. 458; 24 Ala. 322; 34 Ala. 369; 35 Ala. 712.

These views being in conflict with the ruling of the court below, the cause will be reversed, unless the appellant is not entitled to recover upon the title he sets up and claims under.

The appellant had assented to the legacy to the first taker — a daughter of the testator — and the slave had been delivered into her possession. Do the words, “ revert to, and become a portion of my estate, and he equally divided among the surviving heirs”, reconvey any title to the executor, he having assented to the legacy, and delivered the property to the first taker ? These words do not, ex vi termini, vest any title in him. If they confer any title, it is by implication. But these words perform another office, and can be given effect without assigning to them the office of conferring on the executor the title to the property. They serve to show that the testator desired the ultimate limitees to receive the property directly from him, and not from the first taker, and to limit the words “leaving lawful issue” to sucb issue living at tbe death of tbe first taker, and not an indefinite failure of issue.

After tbe legacy, by tbe assent of tbe executor, bad vested in possession in tbe first taker, bis title was at an end, and bis assent enured to tbe benefit of tbe ultimate limitees, upon tbe happening of tbe contingency upon which their title was to become a vested one; and tbe law favoring tbe vesting of an estate in ultimate limitees, as against a reverter, tbe courts, in sucb and similar cases, treat tbe estate as vested in tbe parties beneficially entitled, as is done in tbe case of a mere naked or barren trust. — Heirs of Capel v. McMillan, 8 Porter, 202; Thrasher v. Ingram, 32 Ala. 645; Camp v. Coleman, 36 Ala. 163; Hill v. Chaffee, 14 N. H. 215; 1 Roper on Leg. 844, 849-50; Cox v. McKinney, 32 Ala. 461; 8 Porter, 529.

The case of Thrasher v. Ingram, supra, bears directly upon this question; and tbe case of Hall v. Chaffee, supra, furnishes a strong analogical argument in favor of tbe view taken of tbe effect of tbe clause last recited, upon tbe title to tbe slave in controversy. In that case, tbe language of tbe will was very like that used in tbe case before us; and the main distinction is, that in that case land was tbe subject of devise, and in this realty and personalty. In that case, tbe court held that tbe estate vested in tbe ultimate limitee upon tbe happening of tbe event upon which it was to vest. In this case, we see no reason why any distinction should be made, as to tbe vesting of tbe legal title, between tbe real estate devised and tbe personalty bequeathed by tbe sixth clause of tbe will. If tbe one vests in tbe ultimate limitee, there is no reason why tbe other should not do so likewise. If this limitation of personalty was void at tbe ancient common law, and has only in modern times been upheld upon the analogies to sucb limitations of realty, we see no reason, and are not aware of any principle, which would forbid tbe application of tbe rule with respect to tbe vesting of tbe legal title in tbe limitations of realty to sucb limitations of personalty. A different rule of construction would, in this case, vest tbe title to tbe realty in tbe ultimate limitees, and tbe title to tbe personalty would vest in the executor. Not being able to find any authority to maintain such a distinction, upon reason, principle, and authority, we hold that, in this case, the executor has shown no title in himself under the will of David Bethea upon which he can maintain this suit.

It is therefore unnecessary to reverse and remand this cause, and the judgment of the court below must be affirmed.  