
    [Pittsburg,
    September 23, 1828.]
    CASKEY against BREWER.
    IN ERROR.
    Devise to testator’s daughter C., her heirs and assigns. Another devise to testator’s daughters S. and M. respectively, and their respective heirs and assigns. -If either of them died without issue, that then'the share of the said daughter should vest in the other two if living, or in the daughters’ surviving-children, &c. Held, that S, took an estate tail, with remainder in fee to her sisters or their children.
    Writ of error to the Court of Common Pleas of Mlegheny county, brought by Joseph Caskey, the plaintiff in errror arid plaintiff below, against Charles Brewer. The defendant pleaded covenants performed.
    The following case was stated for the opinion of the court, to be considered in the nature of a special verdict. "
    
      TV. Cecil, in his lifetime, was seised, in fee, inter alia, of a lot of ground in Pittsburg, marked in the plan thereof No. 116, on which he resided. On the 10th of January, 1812, he made his will, containing among other things, the following devises:—
    I devise to my daughter Charlotte Sophia, my dwelling-house, together with twenty-five feet of the lot on which it stands, bounded by the alley and extending along the same from Liberty to Penn streets, preserving the same breadth of twenty-five feet throughout, subject to the life estate of his mother, to have and to hold the same to her, her heirs and assigns for eve,r. I likewise devise to her one undivided third part of my above-mentioned ti;act of land on Qinter’s rrin, subject to the life estate of her mother, aforesaid, to have and to hold the same to her, her heirs and assigns for ever. Thirdly, I devise to my daughters, Susanna and Maria, the residue of the lot on which I live, to be equally divided in front on Liberty and Penn streets, and the share of each extending throughout from one of the said streets to the other. The part in the middle, adjoining to .ray dwelling-house, to belong to Susanna, and the part next to Enoch and - MiCormick, to belong to Maria in severalty, subject to the life estate of their mother, to have and to hold them rcspectively, and to' their respective heirs and assigns for ever. I also ■devise to my daughters, Susanna and Maria, each one undivided third part of my land and plantation on Ginter’s run, aforesaid, to be held by them in common with their sister, Charlotte Sophia, subject to the life estate of their mother, to have and to hold the same to them, their heirs and assigns for ever. : Fourthly, it is my ■yvill, that if either of my said three daughters should die without issue, that then the share of said daughter shall gó and vest in the other two daughters if living, or in the daughter surviving and the children, if any, of the deceased daughter. And if two of my daughters die without' issue, the third living, that then the survivor shall take the share of both the deceased; or, if any of my daughters die leaving children, the said children to take the same estate as their mother would have done had she been alive.”
    
      W. Cecil died shortly after the execution of his will, which was duly proved, and recorded, and his widow died several years ago. On the 20th of February, 1827, Susanna Cecil, deeming herself seised of an estate tail in the premises mentioned in the foregoing devise to her, for the purpose of barring and defeating the said estate, by her deed framed pursuant to the directions of the act of assembly for barring estates tail, granted and conveyed to Maria Brewer, late Maria Cecil, and her heirs in fee simple, that portion of the lot No. 116, devised to-the said Susanna, and the deed of conveyánee was duly entered on the record of the court of Common Pleas, &c.
    On the.4th of Jlpril, 1827, Charles Brewer and Maria, his wife, late Maria Cecil, by their deed acknowledged agreeably to the form 'provided,by act of assembly in cases of the transfer of estates of femes coverts, granted and conveyed to Joseph Caskey in fee simple, that part of the .lot No. 116, devised to the said Susanna, and the deed last mentioned contained a covenant, that the said Maria, at the date thereof, was seised of an indefeasible estate in fee simple in the premises granted, .and that the said Charles and Maria had good right and lawful authority to grant and convey the same in fee. The’plaintiff alleged a breach of this covenant.
    The court below entered judgment for the defendant.-
    The error assigned was, that by the devise mentioned in the case stated, Susanna Cecil took an estate by executory devise, and not an estate tail that, could be barred under the act of assembly for barring entails, and judgment should therefore have been entered for the plaintiff. '
   The''opinion of the court was delivered by

Huston, J.

The question arises on this clause of the will. The testator, after having devised to his daughters, Susanna and Maria, a part of a lot in Pittsburg, particularly described, to have and to hold the same 'to them respectively, and to their respective heirs and assigns for ever, and then some other devises, in nearly the same words', proceeds: — “ Fourthly. It is my will that if either of my said three daughters should die without issue, .that then the share of the said daughter shall go and vest in the other two daughters if living, or in the daughter surviving, and the children of any of the deceased daughters; and if two o'f my daughters die vvith- ' out issue, the third living, that then the survivor take the share of both the deceased: or, if any of my daughters die leaving children, the said children to take the same estate as their mother would have taken had she been alive.” . ■

Cases on similar wills are very numerous, and are to be found all collected in so many different reports and digests, that I shall not add another compilation to the list.. See Powell’s Fearne, 118, 179, 180, et seq. 8 Mass. Rep. 3. The .general t.ehour of these cases is the same in England, from w,hence our ancestors brought with them the general system of our laws in the neighbouring states and in this state. New York se.ems to form, for the last twenty years, an exception. There will, on examination, be found a few scattered cases, which look like exceptions. In some few, instances, the very judges who make these decisions, have overruled them; in others, it has been left to their successors. An anxiety to effect the intention of the testator, has been the ground of any variation in the decisions, and perhaps il-may be questioned, whether this has been the event always attained by such variance. The fact is, the testator would seem, in most cases of this kind, not to have contemplated every possible combination of events which might occur after his death, and of course not to have provided precisely for them. , At one time I acknowledge I had become convinced, that whatever might be the case in England, the construction settled here, li that a devise to one and his heirs, and if he died without issue, then over,” was an estate tail, was clearly wrong; for that if the devisee had children, it would go to the eldest son, which, in this state, is perhaps never contemplated by the testator. And I still believe, that in the event of the devisee having children, this construction which I consjder settled in this state, produces an effect contrary to the intention of the testator-in the respect mentioned, almost invariably. But, I think it ought not to induce this court to change the current bf decisions, because it might, and no doubt would, occasion much contest and unsettle many estates now in peace, and which, from'family partitions and sales to ancient purchasers, ought not to be disturbed. The legislature can introduce a new law to operate prospectively. ' I do ribt know that we could.

Because, I am not sure a.construction, that this and similar de-' vises, were conditional fees in all cases, and the devise over-an executory devise, would, in all or in most cases, effect the intention of the testator. Let us see the effect this' would have during the life of the devisee. Suppose a case, which is no fiction :-r-two of the daughters married, and with large families; a third unmarried, and that third had attained an age which renders it certain she will never.have children; that their ancestor devised to them, by similar words as in this will, a large estate,' but consisting entirely of vacant lots in Philadelphia, and back' lands, which produce nothing, but which’every year call fur much money to pay taxes. The unmarried daughters have now, in effect only, a life estate; thdy cannot improve or lease to those who will improve, for the lease must expire and the improvement go over at their death; the unmarried daughters are thus left without any provision, and must continue so if they live to the ages of fourscore; and this, certainly, their father never intended. The same effect will, for a time, be produced, when a devise of this kind is-given to a child of a year old, especially if of tender health and not likely to attain maturity, and the property devised not productive.

Because, the construction settled, goes as near the intent of the testator as any one we could devise, and therefore ought to remain untouched. What is that intention? This is always to be ascertained to a certain extent, though what the testator would have directed, if certain events had been foreseen, is, at best, conjecture. The general intent is to give to the child an estate of inheritance, but one which must go to the children of the devisee, and which yet cannot be sold or. bequeathed by the devisee, the remainder of which, if .the devisee has no children, the first testator directs to go in a certain way. ( Npw, this is the very description of an estate tail, no more liable to be mistaken than the strict legal definition of onepbut an estate'.tail may be changed into a fee simple by common recovery, or in this state by conveyance in the prescribed form; and if this is done, the remainder is gone to be sure, but the child is supported,-r-is not left to depend on charity, or to starve.

If it is not questioned, and I believe it cannot be, that this devise creáted an estate .tail in Susanna, provided the words “die without issue,” mean' an indefinite failure of issue: then the devise is a perfectly legal one, an estate in.fee tail, remainder over to her sisters or their, children. If we could ask her father now, whether he intended, if she should live unmarried till the age of one hundred, the lot is to remain unimproved and unproductive; and she to depend on her labour, or on' her sisters, or on the charity of strangers, I have no doubt yvhat would-be his answer; aud that answer would be, that he meant it as an estate available for her support. I can find nothing here which goes to contradict this; b.ut, I have said, an, estate tail cannot be so restrained, that tenant in tail cannot change it to a fee. Many a man wished it unchangeable, and that the land he left might be conferred to his. posterity for ever. The British parliament attempted it, but in vain. The remainder men in tail will always complain. Once in. a century a judge will be found to persuade himself to-join the cry. Public convenience required, and public opinion has sanctioned the device, which rendered estates tail alienable, and I am now satisfied, that public convenience occasioned and has justified the construction put on the words, “ dying without issue,” or “dying without leaving issue;” and that however the ease may be after the death of the devisee, it would in most, if not in all cases, thwart the will.of the testator during the life of the first devisee, to construe those words in the yvay sometimes contended for. '

I am of opinion, that the estate devised,, was an estate tail in Susanna, with remainder in fee to her sisters or their children: the case states a conveyance in due form, to bar the entailment; the deed then conveyed an estate in fee, and Charles Brewer and wife, have not broken their covenant. And the judgment of the Court of Common Pleas is affirmed. '

Judgment affirmed.  