
    *James Roy and Others v. Muscoe Garnett.
    October Term, 1794.
    Devise — Construction—Case at Bar. — A. devises certain lands to his son J. for life, remainder to his son M. and his heirs in trust, and for the use of the first and every other son of his. said son J. who should survive him, in tail male, equally to he divided; hut if his said son J. should die without male issue, then he gives the said lands to his said son M. during his life, with like remainders to his first and other sons who should survive him, in tail male, equally to he divided ; hut if he should die without heirs male, then in trust for the testator’s three grandsons, with like remainders to the first and every son of his said grandsons who should survive them in tail male, equally, &c. remainder to M. in fee. He then desires that the widows of his sons and grandsons should he entitled to dower. Held:
    J. took an estate for life, in possession, with remainder in tail male, expectant upon the determination of the estate tail to his surviving sons. The estate for life did not incorporate with the implicative branch of the devise, because the estates were of different natures ; the former being a legal estate, and the latter remaining an equitable estate not executed by the Statute of Uses, for the want of male issue of James.
    
      This case, which on account of its importance and difficulty, had been continued for a full court, came on this term, to be argued. It was an ejectment, brought in the District Court of King and (jueeu, by the lessee of the appellants, against the aopellee, wherein the parties agreed a case, the material parts of which, are as follows, viz: That James Garnett the elder, being seised of the lands in question, as well as of other tracts, by his will dated the 18th day of April 1765, devised the premises in question to his son James, by the following clause viz: “I give to my son James the tracts of land purchased of Thomas Hawkins, Young Hawkins &c. for and during the natural life of my said son James, remainder to my sou Muscoe, and his heirs, in trust, and for the use of the first, and every other son of my son James, who shall survive him, in tail male equally to be divided ; but if my son James should die without without male issue, then X give all the said lands to my son Muscoe, during his life,” with like remainders to his first and other sons, who should survive him, in tail male equally to be divided, but if he should die without heirs male, then in trust for the testator’s three grandsons, with like remainders to the first and every other son of his said grandsons who should survive them, in tail male, equally to be divided, remainder to Muscoe in fee. To his other sons, and to three grandsons, the children of a deceased son, he also devises lands with like limitations, and after disposing of his saves and personal estate he says, “11 is my will, that whatever woman my sons and grandsons marry, or have married, they the said woman, shall be entitled to dower in the lands and slaves, devised to my said sons and grandsons respectively.” [The other clauses in the will, so far as they were thought important, are taken notice of in the argument, and therefore need not be here stated.] It is further agreed, that James the devisee, died in October 1780, having never had male issue, and by his will devised the land in question to his daughter Molly, who died in October 1790, leaving the lessors of the plaintiffs her only children. That the defendant is the same person as is mentioned in the will of James Garnett the elder by the name Muscoe.
    The District Court gave judgment for the defendant.
    ^Campbell for the appellants.
    The question is whether James the son took an estate tail, or only an estate for life. If the former, then the act of 1776 for docking intails, enlarged this estate into a fee simple, and the plaintiffs as heirs of Molly, the daughter of James the son, are entitled. If the latter, then James having died without leaving male issue, the remainder took effect in the defendant. I am to contend for the former construction.
    The clause of the will under consideration has three branches, 1st, The devise to James for life. 2d, The limitation to his surviving sons in tail male, equally to be divided. 3d, The limitation to Muscoe, if James should die without male issue.
    The first branch of the devise must be enlarged by one or other of the remaining branches; that is t® say, either by the 2d, which contains the limitation “to the first and every other son of his said son James, who should survive him in tail male, equally to be divided;” or by the last, which gives the estate to Muscoe, “if his said son James, should die without male issue.”
    The rule of law under which this enlargement of the estate for life must take place is, “that wherever the ancestor takes an estate for life, and there is a limitation to. his heirs or issue, in the same deed or will, these words, shall be words ox limitation and not of purchase, and will vest the inheritance in the ancestor;” Shelly’s case; I Co. Rep. 99. Tho’ this rule in modern limes hath not governed universally, yet it is stated by Lord Mansfield in the case of Dong and Damming, 2 Burr. 1106, 1107,” that it is never departed from but in favor of intention.
    The rule with the exception from it, being thus established, we are to inquire, whether the devise to James for life, be enlarged, either by the 2d, or by the 3d branch of the clause under consideration?
    I shall not contend that the estate is enlarged by the 2d branch of the devise, “to his first and every other son who shall survive him, in tail male, equally to be divided,” 1st, because the words are descriptive only of certain issue male, namely, surviving sons &c. and not of his issue male generally. 2dly, Because the estate is to go to them as tenants in common, under the words, “equally to be divided,’ and therefore, cannot pass in a course of descents, which would carry it to the eldest son only. The sons therefore, must take as purchasers, and consequently under the rule which I have before mentioned, the life estate of the ancestor is not enlarged by the devise to them.
    But I shall insist, that the estate for life is enlarged by implication, by the operation of the words, “and if my said son Mames shall die without issue male, then to my son Muscoe,” &c. In order to determine, and to support the truth of this proposition, I will 1st. consider the devise, as if the 1st and 3d branches of it had stood together, without the 2d being interposed; as if it had been thus, ‘ ‘To James for life, and if he die without issue male then to Muscoe” &c.
    2dly, I will consider, how far the intervention of the devise “to the first and every other .son in tail male equally to be divided, ” will alter the case; and lastly, I will close with an enquiry, concerning the-intention of the testator, in order to ascertain the influence which it can have in this case, upon the results of the previous rea-sonings.
    1st, I am to contend, that a devise to James for life, and if he die without issue male, &c. would have passed an estate tail to James. Inheritances have been created, chiefly by necessary implication. The rule in Shelley’s case, furnishes no doctrine, which is not exemplified, and proved by almost every gift or devise that can be conceived. Thus, in a gift to A. and his heirs, or heirs male, A. has only an estate for life, which is enlarged by the subsequent words, “to the heirs or heirs male.” A devise to a man and his heirs male, gives him an estate tail, and the law will supply the words, “of his body lawfully begotten.” Co. Lit. 9 b.
    There are also other expressions, which are considered as being tantamount to those before mentioned; such as to a man and his seed; 2 Vern. 766. To one, and if he hath issue male, that issue to have it. 9 Co. Eep. 128 — Owen 29 — Ventr. 227, so to one, and if he die without issue. 1 Ventr. 214, King and Melling Hob. 30 — Ventr. 230 — 1 Co. Rep. 99. If then, the clause stood as I am now considering it, without the intervention of the devise to the surviving sons, it is clear, that an estate tail would have passed to .Tames, because the remainder to Muscoe, being limited upon the condition, that James should die without issue, it could-never vest until that event should take place. This brings me to the consideration of the
    2d point, viz: does the intervening dévise make any difference in the case? If it do, it must be upon one or other of two grounds; either that the general words, “and if he die without issue” must be referred to the intervening and preceding branch of the clause, so as to mean such issue as is there spoken of, to wit, surviving sons: Or, that the intervening estate, hinders the first devise for life, and the last devise to the issue male from uniting, so as to make the latter, enlarge the former, or in other words, to vest in James an estate tail.
    *1 say these are the only grounds; because if the devise is (notwithstanding the intervening estate,) tobe construed in the same manner, as if it had been “to James for life, and if he die without issue male remainder over;” and if the words, “and if he die without issue male” are unrestrained, and mean a general failure of issue male, and not of any particular issue, then it is absolutely necessary, that James should have taken an estate tail as all the cases prove, because, it is clear, that the remainder over could not vest until there should be a general failure of issue male.
    Here then seem to lie the great points between us. It is admitted, that the devise to the surviving sons does not enlarge the estate; or if issue male mean such issue, it is equally clear, that an estate tail did not vest in the father. But if it can be shewn that the implicative words are not so restrained, then it must be conceded on the other side, that James took an estate tail.
    I shall at once admit, that an implication to enlarge an estate, must be a necessary one. “Thus if there be a devise to A, remainder to all his sons in tail, and if he die without issue male, then to B ; it is clear, that the latter words “and if he die without issue male,” will not enlarge the estate previously given ; because, as the first part of the devise had comprehended all the issue male, the latter part can have reference to none other, and therefore, shall be construed to mean such issue male, and consequently will not operate to enlarge the estate. The whole male issue being comprehended, there is no necessitj' to enlarge the meaning of the latter words.
    But if there be a devise to the 1st, 2d and 3d sons, down to the 6th, or to any other particular number of sons, and “if the tenant | for life die without issue male, remainder over;” these words, shall not be construed to mean such issue, because the testator by the generality of the latter words clearly meant, that all the issue male should take, and the former words having only given the estate to a certain number, if the latter words were construed to mean such issue, a part of the issue would be left unprovided for, contrary to the evident will of the testator. In such a case therefore, the judges will not restrict the general meaning of the words, “issue male,” but will construe them to mean all the issue male, and consequently, will determine the estate to be an intail in the ancestor. Langly v. Baldwin, Eitzg. 14. The Attorney General v. Sutton, 1 P. Wil. 759. These cases seem to be decisive. They are founded upon the strongest reason, and are in union with the best established principles *of law. And if cases seemingly opposite to these should be produced, they will, if examined, be found not to vary from, but to strengthen the principle established in these cases.
    The last point to be considered, is the intention. If it be contended that the testator meant to give an estate for life only, to James, because he has used expressions proper to evince such an intention, the answer is, that the intention is equally clear and strong, that all the issue male of James should take, and that Muscoe was not to take, so long as James should have issue male; and unless James took an estate tail, some of his sons might have died in his life time, leaving issue, who would be entirely unprovided for. If then there be two intentions, the one contradictory to the other, all the authorities prove, that a preference is given to that, which favors the issue, where it is clear they were meant to be provided for. The authorities, from Shelley’s case, down to the latest that we meet with, prove, that an estate given expressly for life, may be enlarged by words of implication. But I doubt if one can be produced, where, if the issue were meant to be provided for, a construction has been adopted, which went to defeat them, merely because the estate was given to the ancestor expressly for life.
    Let it also be remarked that the reason upon which the cases in England which aim at the destruction of the rule in Shelley’s case is founded, is, that the tenant in tail might by suffering a common recovery bar the provisions intended for the issue, if a construction be made so as to vest the inheritance in the ancestor. This I consider to be the operative reason which has prevailed in those modern decisions which seem to weaken the force of the rule I have been contending for. But this reason could have no influence in this country whilst estates tail were permitted, because they could not be barred with the same facility.
    I rely therefore,, that upon principle, and upon authorities, James Garnett took an estate tail by implication; and if so, that estate was converted into a fee simple by the act of 1776, and descended to the lessors of the plaintiff, as the heirs at law of Molly, the only daughter of James Garnett.
    Warden for the appellee.
    The rule laid down in Shelley’s case considered as a general one, is not denied. But this rule is always departed from, in cases where it appears that the testator intended to give ■only an estate for life to the ancestor. That such an intention appears in the present case, we are to prove.
    Bet it be remembered that the intent of a testator is to be collected from his whole will, and not from any particular clause *in it. This principle is laid down in the case of Baddeley v. Rap-pingwell, 3 Burr. 1541, and also in the case of Erogmorton, on the demise of Brainstem v. Holiday, 3 Burr. 1618. No rule of law is better established than this, that an estate given without any words of limitation, passes only an estate for life, and yet, in the last mentioned case, where there are no such words, other words evincing an intention to give a fee, were considered as sufficient to set aside the rule. The intent, is the polar star to guide the construction of a will, Swinb. 10 — 1 Burr. 39, 49, Robinson v. Robinson, Cro. Jac. 448, Dougl. 321. Having thus admitted the rule contended for to be generally true, and pointed out the principle by which it is to be corrected, I shall insist, 1st, that the intention of the testator in this case was clearly to give an estate for life only to James. 2dly, There being no rule of law to prevent the issue male of James from taking by purchase, if the intention be clear that they should do so, the words of the devise under consideration are not sufficient to bring this case within the rule which is contended for.
    First. The will shews, that the testator was desirous of disposing of a large estate amongst the male descendants of his name. To effect this, it was necessary to devise it to his sons, and to their male descendants. Hence we see him devising parts to his sons; other parts to his grandsons, the grandchildren of a deceased son, for and during their natural lives severally, with remainders in trust in each devise, for the use of the sons of those sons and grandsons severally, who should survive them in tail male, thereby intimating an intention, that the estates tail might commence in the male descendants of the devisees for life, and hence we find him giving dower to such women as his sons and grandsons might marry, clearly demonstrating, that he considered them as only tenants for life, and that without such a devise they would nqt be entitled to dower. But what principally fixes the intention of the testator, and proves that he knew what he was about is, that w'here he gives express estates for life, he also gives a right of dower to the widows ; but to the widows of the sons of his sons and grandsons, in whom he supposed an estate tail commenced, he says nothing about dower, knowing that the law provided for such. In Bagshaw and Spencer, 2 Atk. 570, 579, the words “without impeachment of waste,” were considered as sufficient to take the case out of the rule; and surely, those words do not furnish stronger evidence of intention, than may be drawn from the provision made in this case *respecting dower. The case of King and Melling does not weaken this argument; for tho’ dower is an incident to an estate tail, yet a power to make a jointure (as in the case cited) of the whole estate devised, is not an incident, but repugnant to such an estate, and therefore such a power could not take the case out of the rule.
    Blackborne and Edgley, 1 P. Wms. 601, may perhaps be relied upon against me. But it must be recollected, that this case was decided prior to that of Bagshaw and Spencer, and besides, the words “without impeachment of waste” were in that case passed over sub silentio, the decision turning upon another point, to wit, that words of implication would turn an express estate for life into an estate tail. And if this principle be true, surely words of implication shewing a strong intent to give no more than an estate for life, which was expressly given, shall retain it in that situation. This brings me to the
    2d point. I shall consider this clause in the will according to the subdivision thereof made by Mr. Campbell. The first member of the sentence it is admitted gives only an estate for life. The second member gives the whole fee to Muscoe in trust, and his estate, commences only when the estate for life ends; so that the fee, was not lo be for the use of the legal heir of James, but for his use, upon condition, that the first son should be that heir, and should survive him, jointly with the other sons, not as a joint tenancy, but as a tenancy in common of an estate tail which was to commence in the sons. The sons therefore could not take by descent as tenants in common, because only the eldest son, or his representative could be heir to the father. From this consideration it is evident, that the estate tail was to commence in the sons, which is further proved by the position of the words in the sentence; the words in tail male, being placed between the words “survive him,” and “equally to be divided.” Doe and Ramming, 2 Burr. 1100.
    The third member of the sentence is principally relied upon to constitute this an estate tail in James. Considering the operation of this part of the sentence upon the plain principles of common sense, the words issue male would be intended to signify such issue male, that is, a son, or sons surviving James. Jt might perhaps be even construed to mean the male issue of a deceased son or sons. But here, if there were any surviving son, the heir might be disinherited, and if there were no surviving son, but the sons of several deceased sons, they would all of them be issue male under the contemplation of the former member tef the sentence, and would take equally; and if they did, the estate would not pass according to the rules of inheritance to the heirs general or special; for by these rules, an eldest son is the heir, and so on, to his most remote posterity, and not all the male descendants, deriving their descent through mates. The same difficulty would occur, if the words were construed to mean male descendants, either deriving their descent through sons, or daughters. Whichever exposition is taken, this conclusion follows, that the estate to the ancestor for life is not necessarily limited by the words “to his heirs general or special,” and therefore the words of the devise are not of themselves sufficient to bring the present case within the rule. Keeping in mind that the intention is to be sought for in the whole, and not in any one part of the will, this conclusion follows, that as it is evident by the second member of the clause, that an equal division was intended amongst all the sons who should survive James, so when the male issue are spoken of, a like intention as to them is to be presumed, in case any such should be left. This is the only implication, under which, the law will presume that any estate was by the words devised to them, and they can derive no estate from the words, but by implication Dougl. 264 — 3 Durnf. and East, 484. This exposition gives effect to all the words, and consistency to every part of the will. That this is a necessary construction, will appear, when another principle of law is considered, to wit, that an express estate for life, cannot be altered by words of implication. 1 P. ffms. 54, Bamfield and Popham which is recognized and confirmed in the case of Ives v. Legge, 3 Term Rep. 488. :
    Upon the whole, it seems clear, that the true construction of this will is to give to James an estate for life, and to the surviving sons, or to the issue male, estates tail as purchasers.
    Washington on the same side. To avoid the confusion which will generally follow, from plunging at once into the consideration of a multitude of authorities, I will endeavor to class them under four different heads.
    The first, which begins with Shelley’s case, need not be mentioned, because the rule is well understood and admitted.
    The second, comprehends those which modify the rule in Shelley’s case, and establish the principle, that the intention of the testator shall prevail against the rule.
    This will lead to an examination of the intention in the present case, independent of the latter, which is justly termed the implicative branch of the clause.
    *Though Mr. Campbell has conceded, that the second branch does not enlarge the estate expressly given for life, yet it deserves our consideration, so far as it tends to throw light upon the testator’s intention.
    The inconsistency which Mr. Campbell is forced into, ought not to be passed over; for tho’ he admits, that the parts of the will which we rely .upon to prove that an estate for life was intended, do successfully establish it, and that the intention must prevail, yet he finally concludes that James took a greater estate: those parts are,
    1st, That it is given expressly for life, which I mention merely to repel the implication arising under the 3d member of the clause.
    2dly, It is given to sons which is a word of purchase.
    3dly, .To sons equally to be divided, thereby breaking the course of descent; for if they take in the character, they must take in the quality of heirs. Brow. Ch. Rep. 206, Jones v. Morgan; Doe and Lamming, 2 Burr. 1100.
    4thly, There is a trustee appointed, which could only be for the purpose of preserving : the contingent remainders. Sayer and Masterman cited in Fearne on Const. Rem. 122.
    5thly, The wives of the sons and grandsons are to have duwer, but no such provision is made for the wives of the issue of' the sons. This is a circumstance of considerable weight, and has been well enforced by Mr. Warden.
    If we look no farther into this clause of the will, what case can be produced, containing so many strong proofs of intention, and who can doubt for a moment, but that James was meant to take an estate for life only? What then has become of the rule in Shelley’s case, or how can it operate upon this case? The rule is best stated by lord Hardwicke in the case of Bagshaw and; Spencer to wit: “that though the intention is to prevail, yet it must not conflict with the settled rules of law. ’ ’ But what are those rules? The same judge describes them y he sajrs, that they will not permit a testator to create a perpetuity ; to produce an abeyance ; mount a fee upon a fee, or make an heir take chattels by descent.
    Shelley’s case would not apply at all, if' it were not so modified, for the devise there, is to heirs male, which are words of limitation, whereas issue is properly a word of purchase. And in Backhouse and Wells it was said, that if the words had been heirs. male, the operation of law would have ' over-ruled the intention* — Pow. on Dev. 360. Let me conclude my observations upon Shelley’s case, by observing, that no judge has gone beyond the rule there laid down ; the reason of it has ceased, and none are hound by it, but in cases coming strictly within it.
    • The above view of the question embraces the two first branches of the clause.
    The 3d class of cases furnishes a rule, as well established as the one drawn from Shelley’s case; it is, that an express estate for life, cannot be enlarged by words of implication, Bamfield and Popham 1 P. Wms. 54. This principle has never been controverted, and is recognized in the case of Ives v. Legge, 3 Durnf. and East 488; also in the case of Lethieullier and Tracy 3 Atk. 784. Now, this is a different rule from that in Shelley’s case; not affected by it, and is in point, to defeat all the arguments drawn-from the third branch of the will. This rule, I said was opposed by no case whatever; I ought to except that of Blackborne and Edgley; but that case is not an authority as to this point, because it is founded upon Sunday’s case, which is not a devise of an express estate fcr life. This leads to the consideration of the 4th Class of cases, which operates upon the rule last mentioned, in the same manner, as the 2d class dpes upon that in Shelley’s case, to wit, to correct and explain it. And the principle resulting from the rule thus corrected is, that an estate for life may be enlarged by words of implication, if the intention of the testator manifestly appearing, cannot otherwise be effectuated. Without this necessity the estate for life will not be encreased; but the word such will be supplied.
    Under this view of the question it will be fottad, that we occupy the strong ground which the appellant’s counsel think they had secured. For in a case coining within the rule in Shelley’s case, the person who would defeat the rule, must shew an intention opposed to it. And this would be our situation, if the issue male claimed by an express limitation. But the limitation in this case arising only by implication, we have the rule in Bamfield and Popham on our side, and the proof of an intention which cannot otherwise be effectuated than by enlarging the estate for life, lies upon the appellant. It is not necessary for us to shew an intention to give an estate for life; the appellant’s counsel must shew an intention sufficient to subvert the rule.
    This will serve to introduce the following cases, which will also contribute to exemplify the rule in Bamfield and Popham.
    The first is the case, of the Attorney General v. Sutton, in *which it was contended, that it was the clear intent to give to all the issue; and so it was. For 1st, a strict settlement was manifestly intended, since it is not to be supposed that the testator could have a preference to a 3d, more than to a 2d son, and of course his stopping at the 2d son, must have been an undersigned omission.
    2dly, The words of the will in that case too plainly shew an intention to give an estate tail, to have admitted of a doubt: see the note to the report of this case in the last edition of P. Wins. 754.
    3dly, The remainder there, is to a charity, here to son.
    The second case is Bangly and Baldwin, which is much relied upon. In this also it is to be observed, 1st, that there was a clear intention to provide for all the sons in strict settlement. 2d, The course of descents is there preserved — in our case it is broken. 3d, In that, the only mark of a contrary intention is the devisee being freed from impeachment of waste; for that the clause respecting jointure proves nothing, has been well explained by Mr. Warden.
    4th, In that, the remainder over is to a stranger.
    These cases only shew, that where the intention is clear, and can only be supported by enlarging the estate for life, the court will do so; and this we concede. To give James then an estate tail, it is absolutely necessary to prove, that the testator meant to provide for the son of a non-surviving son. It is not sufficient to say, that such person would otherwise be unprovided for, because, if this were all, it would be placing the proof of intention upon ns, who are safe under the rule in Bamfield and Popham, unless an intention to give a larger estate than for life is shewn on the other side. In Bamfield and Popham, the rule was not departed from, tho’ a posthumous son might have been disinherited under it, and this was an argument, much relied upon in opposition to the rule.
    So in Blackborn and Edgley, tho’ it was objected, that the adoption of the rule would prevent the sons and daughters from taking, yet the court would not for that reason dispense with the rule. So the same reason was urged in Bethieullier and Tracy, to wit, the exclusion of a great grand-daughter; yet the rule prevailed. In the case of Wyld and Dewis, 1 Atk. 432, cited in the case of Lethienllier and Tracy, an express estate for life was not devised. So too in 2 Bac. 68, who cites Bulstr. 63- Dy. 171, the rule was supported, tho’ the heirs general might have been excluded. So the case of Doe v. Reason, *cited in Doe v. Holme 3 Wils. 244, is precisely apposite to the present, and answers all the objections.
    It is not true then, that because an inconvenience may happen from the adoption of the rule, that therefore it shall be dispensed with; but it is essentially necessary to shew an intention to provide for the son of a non-surviving son, growing out of the will, for it is admitted that the implication must be a necessary one.
    Upon the whole, these points seem to be established. 1st, That the intention of the testator was to give an estate for life — the construction contended for, is to defeat that intention.
    2dly, There is no evidence of an intention to provide for the case which is supposed, and therefore no necessity to enlarge the estate of James, by implication.
    3dly, To do so, would defeat the intention in another respect. For if James took an estate tail, to open and let in the sons of a non-surviving son, the eldest would take by descent, in exclusion of the others, tho’ it was evidently the intention, that those who took should take equally as purchasers, and in this respect, our case differs most essentially from that of Bangly v. Baldwin, where the course of descents was preserved throughout.
    The answer given to all our cases is, that they are founded upon the power of tenants in tail in England to bar the right of the issue. But this is not the reason, as the case of Dethieullier and Tracy proves; and besides, there were two ways of barring estates tail in this country whilst such estates existed; the one by a writ of ad quod damnum, and the other by application to the legislature.
    But if after all, intention is to be sacrificed, and all the rules of law destroyed in order to let in the son of a non-surviving son, 1 can see no reason, why he might not take by purchase as well as by descent, for issue male are properly words of purchase.
    Wickham on the same side. It is agreed, that an estate for life is given to James, but it is contended, that the remainder unites with and enlarges it; and this doctrine is bottomed upon the rule in Shelley’s case.
    To this rule, we oppose that in Bamfield and Popham, which does most certainly defeat it, wherever the limitation over is not by an express and direct devise to the heirs or issue. But I contend, that if the devise in this case had been directly to the issue male of James, that the remainder could not upon the principle laid down in Shelley’s case, unite with the estate for life. It is 'x'admitted, that this union can never take place, where the estate for life and the remainder are of different natures ; as if the one be a legal, and the other a trust estate. Now in this case, the inheritance after the death of James is devised to Muscoe in trust, and consequently, the cestui que trust would have been entitled before the statute of uses to a merely equitable interest. Is this a case within the operation of the statute? I contend that it is not, because that statute only vests the legal estate in him, who is entitled to the use or equitable estate, which can only be effected, when there is a person in esse in whom the use resides, 1 Rep. 126. But in this case there never was such a person in being, James having never had any male issue; and consequently, the legal estate which continued in the trustee until James should have such issue, never was executed by the statute, and therefore, the limitation to the male issue, never could incorporate with the life estate vested in James. It is equally necessary to produce this union, that the two estates should pass by the same conveyance. But in this case, James took under the will, and the male issue, (if there had been such,) under the operation of the statute of uses. The only way by which James can take an estate tail, is by uniting the estate given by implication in the third branch of the clause, with the estate for life given to him in the first. But if this union cannot take place from the different natures of the two estates, the certain consequence is, that he never had a greater estate than for life. If I am correct in this argument, there is an end of the cause.
    The estate for life can only be enlarged by implication to favor the intention of the testator. But an implication to destroy the intention is an absurdity in terms. That the testator well knew the difference between an estate for life and an entail, is proved by the very clause under consideration, where he gives an intermediate estate in fee to a trustee,, which could only have been for the purpose of preventing the union of the two estates, and to preserve that which he knew was contingent.
    The testator could not by stronger language have expressed his will not to give an estate tail to his sons and grandsons. The many circumstances to prove this intention, which have been mentioned by the counsel who have preceded me, one would suppose were sufficient. But there is another. There are several devisees, to each of whom he gives an estate for life; then to the issue. But how? In succession, as estates of inheritance must go? No. But it was certainly his intention, that the issue male should take in the same manner as the sons did, and it is *admitted that they took as purchasers, because they did not take in succession. If then, James is construed to take an estate tail, the issue male would have taken in a way not intended by the testator. This then forms the striking difference between, the present case, and all those which have been relied upon by the appellant’s counsel. In King v. Melling, there is no intervening estate changing the course of descents. The Attorney General v. Sutton was reversed in the House of Uords. But admitting its authority, the line of succession was there preserved, and therefore the construction put upon the implicative branch of the devise went with the intention. The same observation applies toljangly and Baldwin, and Dodson v. Grew and others, 2 Wils. 322. This last case proves the principle which governed all the others, to wit, that the issue were intended to take in succession, which they could not do, if they took as purchasers. But here they were intended to take altogether, which they cannot do, if they take by descent.
    It is contended, that Muscoe could not take so long as Jambs had issue male living ; and that the only way by which the son of a non-surviving son could take, was by descent from the father. It is evident that the testator never contemplated such an event, and therefore he could not mean to provide for it. But if he did intend that all the issue male should take, it was equally his intention that they should take all together, which thej' could not do, if the construction contended for be correct. Could a grandson of James have taken equally with the sons of James? Sureljr not; but the sons would have taken the whole, and left to their nephews a paltry remnant after the expiration of an estate tail. We have seen that the leaving of a posthumous son unprovided for, does not afford a reason for giving an estate tail by implication, where only an estate for life was intended, and yet this is an event as probable as that now supposed.
    The last branch plainly refers to the children before mentioned, that is, to surviving sons ; and the court will not stretch the meaning of it to issue generally, unless induced thereto, for the purpose of complying with the testator’s intention, which I have endeavored to shew would be defeated by such a construction. The word but is plainly a word of reference to what had gone before; and that heirs general may by reference to preceding words be construed to mean heirs male, is proven by the cases read from 2 Bac. 68. So that the court will in this case take the whole clause together, and correct the last branch by the second, so as to mean, “if James die without male children surviving,” &c. *In many of the devises, the remainder is limited immediately over. Tor instance, the land devised to his grandson Augustine is “to him for life, remainder to James, in trust for the use of the sons of Augustine who shall survive him in tail male equally to be divided, remainder to all the sons of his grandsons Francis and Harry, who shall survive them in tail male equally, &c. remainder to his son James and his heirs for ever.” Now is it probable, that the testator meant to provide for the issue male generally in some cases, and to exclude them in others? The whole will should be taken together, and the same intention be presumed throughout; for it seldom happens, that the same idea is by the same person, and in the same instrument always expressed in the same words. We here find the testator sometimes using the words, “for want of heirs” — “heirs male” “in default of issue male” &c.
    But suppose that a devise to the issue male generally of James, must necessarily be implied. May they not take as purchasers? It is assumed as a point given up, that they could not; and yet I can see no reason, why they should not, if it be so intended.
    Even heirs, eo nomine, must take as purchasers, if they take otherwise than in the quality of heirs; and the issue male in this case cannot take at all, consistently with the intention of the testator, unless they take by purchase, for otherwise, they would come in by succession, and not altogether, which would contravene the intention.
    Upon the whole, I think there is no principle which will bear the appellants out, in contending that James took an estate tail.
    Marshall in reply. The single question in this cause is, did James Garnett take an estate for life, or an estate tail? I shall attempt to maintain the ground which Mr. Campbell has taken, though I shall not precisely follow him in the mode of discussing the subject. I shall contend,
    1st, That upon authority, the male issue of the non-surviving son of James must take before Muscoe.
    2dly, That according to the intention of the testator, they must take before him.
    3dly, That they must take by descent, and cannot take by purchase.
    4thly, That if they take by descent, the estate must be in the ancestor, and therefore that James took an estate tail.
    1st, It is a rule supported by a connected train of authorities, that wherever in a will devising a legal estate, a remainder over "is to take effect on the failure of issue of a particular devisee, or on failure of male issue, that such issue must take in infinitum by the implicative devise, before the remainder man, unless there be strong circumstances to take the case out of the rule. To prove this rule, I cite Robinson’s case mentioned by Ld. Hale in King ■and Melling, 1 Vent. 230 — Gilb. Dev. 38, 39 — Eq. Ca. Ab. 185 — Langly and Baldwin ; Attorney General v. Sutton; Robinson and Robinson, 1 Burr. 58. To this rule, I admit there are exceptions, within none of which can the present case be brought, and within some one of them, all the cases cited against us are to be found.
    A principle indeed has been urged, which if true in the latitude contended for, would embrace our case. It is, that an express estate for life cannot be enlarged by implication. In the extent it is laid in the books, I deny the principle to be law. Bamfield and Popham, a note in 3d Durnf. and East 488, and 2 Bac. 68, are cited in support of it. It is also laid down in Humberson and Humberson, which is decided upon the authority of Bamfield and Popham, and must therefore stand or fall with it. In Bamfield and Popham, all the sons and their issue are provided for. The only argument in favour of enlarging the estate for life was, that a posthumous son might be disinherited, unless the ancestor took an estate tail. It is not certain that the argument was applicable to the case, for even admitting that before the 10th and 11th of William and Mary, a posthumous son could not have taken, it is certain, that the case was provided for by that statute. This case was decided subsequent to the making of that statute, and we are not informed ' whether the testator died before or after it. But independent of this objection, I contend that I I
    that case is not law, and would shortly after have been otherwise decided. It is admitted, that the testator did not intend to exclude a posthumous son, and yet, the construction there put upon the will, was against the intention, upon the authority of the legal principle, that an express estate for life cannot be enlarged by implication. The principle as there laid down is totally unqualified and unrestrained, so that it would prevail against the clearest intention. The principle is exploded by all subsequent adjudications, and not attempted to be maintained by those which notice it. It is denied in the case of Blackborne and Edgley. I admit that Sunday’s case does not support the principle for which it is there cited, but surely the cases which I have before mentioned, do most conclusively over-rule the solitary case of Bamfield and Popham. The decision *on the case from Durnf. and East turned upon the words of limitation which are su-peradded, and is besides, a mere obiter dictum, unnecessarily stated. But above all, I rely upon the decision of this court in the case of Shermer v. Shermer (ante 266) as over-ruling this principle.
    Having cleared the cause of this rule so much relied upon, I proceed to state the exceptions to the principle I am contending for.
    The first is, where the whole issue is provided for by the intervening clause. For in such a case, it would be unnecessary, and therefore absurd to create an implication for the purpose of providing for those who took by an express devise.
    The second is, where a plain intention appears to exclude such issue. Within this exception is the case of Blackborn and Edgley, for the testator having declared an intention to provide for his name, it would have been a manifest violation of his will, to create an implication which should let in the females, who were clearly meant to be excluded. The third exception is where words of limitation are superadded, so as to render the first word issue descriptive of the person, and yet the issue in infiniium may take by force of the subsequent limitation. Or where there are other words annexed, making it merely descriptive of the person. Under this exception, is to be ranked the cases cited from Moor 593 — 3 Wils. 244 — 3 Durnf. and East 484. Eyle and Gray; Long and Lamming, 2 Burr. 1100. The reason of the first member of this exception is obvious. Issue cannot be at the same time a word of purchase, and a word of limitation. If it be the former, only a life estate passes, as it merely describes the person of the first taker; where it is the latter, the issue take in infinitum.
    Now if words of inheritance be super-added, the word issue may be taken as descriptive of the person, and the subsequent limitation will carry the estate to the heirs of the first taker; so that all the issue must be spent before the remainder-man can take. It is also evidence of intention, that the issue should take by purchase. This distinction was taken in Loddington and Kyme and has ever since been regarded.
    I The 4th exception comprehends the cases I of trusts. For where application is necessary to be made to a Court of Chancery, that court will so mould the conveyance, as that the legal construction upon the words of it, shall, in favor of the intention, be different from what it would have been, if a legal estate had been originally conveyed.
    Opon this principle was Bagshaw and *Spencer decided. I might go further, and say, that this case is not easily to be reconciled with foregoing cases,- or with Garth and Baldwin afterwards decided by the same judge. See Jones v. Morgan, Brow. Ch. Rep. 206. But it is not necessary to impeach that case, since the principle upon which the decision was made, is inapplicable to this.
    This case comes not within any of the exceptions. For 1st, all the issue are not provided for, but on the contrary, the sons of non-surviving sons would be disinherited, unless protected by the implicative devise. 2d, They are not intended to be excluded. 3d, There are no words of inheritance grafted upon the limitation, nor are there any words descriptive of the person. 4th, Nor is it the case of a trust.
    Second point. It is always presumable, that the issue in infinitum are intended to take before the remainder-man, where the limitation in remainder, depends on the failure of the issue of the first devisee. In this case, Muscoe Garnett is to take; but at what time? When James shall die without issue male. Can he then take sooner? The dying of James without male issue, is like a condition precedent. The construction contended for is the same, as it would have been, had the words “but if James shall die without issue male” been omitted: Why reject them? They are operative, there is abundant use for them, and they have a known, legal signification. Such words then are never to be rejected. This can only be the fate of such, as are senseless or repugnant. The intention to provide for the sons of non-surviving sons, is further proved from the devise to the-surviving sons being in tail; for if they had been alone the objects of the testator’s bounty, it would have been more beneficial to them to have had a fee simple, and tho’ he might prefer the surviving sons to grandsons, it is not easy to assign a reason for preferring the sons of surviving sons, to Muscoe, and yet preferring Muscoe to the sons of non-surviving sons. It is. also material, that the property is distributed in tail male amongst families; each son and grandson, being considered as the head of that family. It is reasonable to suppose an intention, that the property should remain in the respective families to which it was assigned, so long as there were any male issue to take it.
    The counsel on the other side have labored to prove, rather that James was intended to take an estate for life, than that the testator did not intend to prefer all the male issue of James to Muscoe. The former we concede. I believe in all the controverted cases upon this subject, the testator meant to give an ^'estate for life; but there is no incompatabi'lity of intention, between giving Ja'mes an estate for life, and preferring all his male issue to Muscoe. The intention to provide for all the male issue is equally clear, and must over-rule the other intention. This is clearly stated in Hargr. law tracts 503; 2 Wils. 322; Brow. Chan. Rep. 220.
    It is contended, that the provision for dower, is an unanswerable proof of the intention, to give only an estate for life. But does it shew an intention to exclude the male issue? A clause against impeachment of waste is not less strong.
    Obj. That here are trustees to preserve contingent remainders.
    Ans. The use of the trustee is not declared to be for this purpose, and therefore nothing as to intention is established by it. Besides, the trustee might have been necessary to preserve -the contingent remainder to the surviving sons. Lewis Bowie’s case cited in Reame 28.
    Obj. That if the testator intended to provide for the sons of non-surviving sons, he would not have given a remote remainder after the expiration of an estate tail.
    Ans. If there were no surviving son, then the male issue of a non-surviving son is immediately provided for. If the sons had all survived, then all the male issue of James would have been provided for. If some survived, and others died leaving male issue, then the surviving sons are preferred, but the male issue of the non-surviving sons are preferred to the remainder man.
    Obj. The word but, is a word of reference.
    Ans. It is plainly intended to mean the same as and; in other devises, other words are used, obviously with the same intention.
    Obj. The issue of non-surviving sons are certainly unprovided for in other parts of the will.
    Ans. The limitations are not varied in the devises to his sons, and I do not see that the devises to his grandsons, can any more restrain those to his sons, than the latter can enlarge the former.
    The case of the Attorney General v. Sutton, is said to be inapplicable, because in that, the will plainly meant to pass an estate tail. The words of the will in that case, to wit: that on a certain event, “the estate he had givep to Thomas and the heirs of his body should be void,’’ were not relied upon in making the decision of the court, nor are they mentioned by the counsel. But a trust and a legal estate were devised by the same words, and the devisee was adjudged to take an estate tail in the legal estate, and only an estate for life in the trust. If the words *relied upon had evidenced an intention to give an estate tail, that intention would have controuled the trust, as well as the legal estate. Of course, the ground of that decision must have been that which was contended for, to wit, that all the issue were not provided for. Neither was the decision influenced by the remainder being limited to a charity; for it was admitted, that such limitations are favored. Tho’ the plea was over-ruled in the House of Lords, yet the principle was established.
    Many other objections are made to the application of Langly and Baldwin.
    In that case, as in this, there is an express estate for life given ; an estate tail to the sons, and the remainder was to take effect on the failure of issue. In what do they differ? Tho the sons in this case do not take by succession as in that, yet no preference to the remainder-man can therefore be inferred. The intention to provide for all the male issue is as clear, as that the sons should take in a particular mode, and ought therefore to be effectuated. It is not more unlikely in this case, that the testator should mean to prefer the sons of surviving sons to the remainder-man, and not the sons of non-surviving sons also, than in that case, that he should prefer a 6th to a 7th son : both were equally unknown to the testator. But the ground of that decision, was obviously the principle we are contending for, to wit: that all the issue not being provided for by the express devise, there was an use to be made of the impli-cative branch of the clause.
    Third point. This is bottomed upon the rule in Shelley’s case, which has never been denied, and is admitted in the case of Jones v. Morgan. The reason of the rule is, that if the heir do not take by descent, he can only take an estate for life; for taking by purchase, he only, and not his posterity is described. This principle is slated very clearly in Shaw and Weigh Pórtese. 74, 78, that where the word issue is tiomsn col-lectivum, they must take by descent, and that in all cases where they take by purchase, it is nomen singulare, and the issue without further limitation can only take an estate for life. In our case, the word is nomen collectivum; it must mean all the male issue, or else the issue of that issue could not take, and the remainder would vest before a failure of issue, tho by the express words of the will, it is to be postponed until a failure of issue takes place. The case from 3d Atk. 784 is not in point, because the limitation to the issue is restrained to issue living at the death of the testator.
    In Long and Lamming, the heirs are so described, as to render it impossible for • them to take by descent; it would have rendered *the devise totally void, and there are also words of inheritance superadded.
    29
    It is objected, that the sons of non-surviving sons must according to the intention of the testator take equally. But I conceive, this would go to defeat the intention, and could not be extracted out of the will, but by inserting limitations not in the will, and rejecting those that are.
    4lh point. The principle of this point is founded on Shelley’s case, and is obvious. An estate cannot descend from an ancestor, unless it were first in him, and though James was intended to take an estate for life, yet his male issue were also intended to take, and if they can do so only by enlarging the estate of James, the particular must yield to the general; the less material, to the more important intention. The mode of taking, must be sacrificed to the more solid object of enabling them to take at all.
    If I am right in these points, then it is plain, that James took an estate tail, which was turned into an estate in fee by the act of 1776, and of course, that the appellants are entitled to recover.
    The PRESIDENT observed to Mr. Marshall, that he had not noticed an argument of Mr. Wickham’s, which stated an objection to the union of the two estates in James; to wit: that the one was a legal, the other a trust estate not executed.
    Mr. Marshall. The fact as stated by Mr. Wickham 5s not admitted, and if admitted, cannot I think be material. The devise to the trustees is for surviving sons, and may, or may not extend to the issue. If it do not extend to the implicative devise, then the fact is not as it is stated, and there exists no difficulty in the case.
    But admit that it do not extend to it. Devises of estates executed by the statute are, (so far, as I have yet discerned, assimilated in every respect to a devise of a plain legal estate at common law. The devise under the statute would execute in the same person, and take effect beneficially to the devisee, precisely at the same time, with a devise of a legal estate at common law. I have seen no case determined on this distinction, and yet such would naturally occur. For if the statute in this case will not execute the use in the ancestor, until the issue come in esse, neither would it have executed it, if the devise had been to trustees for the use of James, remainder to the same trustees for the use of the issue ; for the first devisee being in esse, no legal estate whatever with respect to him is in the trustee, and it is in law 'x'just the same, as if the devise had been immediate to James. Yet in such cases, the estates have been united, and therefore, the difficulty stated to the union in this case cannot be a solid one. The case in 2 Wils. 322, is a devise immediately to the first devisee, with remainder to the use of the issue, and there we find, that the two estates incorporated, and vested an estate tail in the first taker.
    
      
      Executory Devise — Construction—Contingency.—In Murdock v. Shackelford, 17 Fed. Cas. No. 9,937, a testator lent his son William a tract of land for life, “and if he has children, at his death, he may dispose of it to them as he thinks proper, reserving to his now wife the use of the land during her life, as long as she remains his widow; but if she marry, then she is to have only one-third part; the whole or part, whichever she has, is to be held without committing waste. If my son William dies without heirs of his body, then the land, with the consideration above mentioned, to go to my son Zachariab,” &c. The court said : “This is an executory devise to William, in tail, after an estate for life in himself, remainder in fee to his children, living at the time of his death, which executory devise in tail, is to take effect on the contingency of his dying, without children living at the time of his death. * * * This case very strongly resembles that of Sow. Garnett, 2 Wash. (Ya.) 11, which was very maturely considered, both by the bench and bar. The doubt, in Soy v. Garnett, was, whether in the event of the devisee for life, dying without male children, his estate would be enlarged by the implicative devise, so as to enable his issue to take before the remain-derman; but it was conceded by the counsel for that issue, that if any male child, or children of the devisee for life, had been living at the time of his death, such male child or children must have taken under the will, and the estate of the devisee for life would not have been enlarged into an estate tail.” The principal case is cited with approval in Smith v. Chapman, 1 Hen. & M. 296.
      Construction of Words “Heirs” and “Issue.” — The principal case and Warners v. Mason, 5Munf. 242, are cited in Tidball v. Lupton, 1 Rand. 197, as authority for the proposition that the word heirs as well as issue, may be construed a word purchase, as descriptive of the persons to take, if that shall appear to be the intention of the testator, and is not necessarily a word of limitation.
    
   The PRESIDENT

delivered the opinion of the court.

The material parts of the agreed case are, that James Garnett by will, devised the estate in question to his son James for life, remainder to his son Muscoe in fee, in trust, for the use of the first and every other son of James who should survive him in tail male, equally to be divided; but if James should die without issue male, then he gave the land to Muscoe for life, with like remainders to his first and every other son who should survive him in tail male, equally to be divided; but if Muscoe should die without issue male, then in trust for three grandsons and their surviving sons, in tail male, equally to be divided, remainder to his son Muscoe in fee.

After having disposed of his slaves and other property to his children and grandchildren by the different clauses of his will, he declares, that their respective wives should be entitled to dower. The testator died before the year 1776.

James survived that period, never having had a son, but leaving a daughter his heir at law, under whom the appellants claim, insisting that James took an estate tail, under the will, which by the act of 1776 was turned into a fee simple, which descended to his heir.

The appellee contends, that James took an estate for life only, on which the act did not operate, and that the contingent remainders limited upon that estate, being at an end, the remainder to him is become vested in possession.

The conclusion of each party is right from his premises, and brings us to the question, which of those estates James took; whether for life or in tail?

Upon the face of the will itself, difficulties arise, what was the testator’s intention. As usual therefore, authorities are produced, for the purpose of illustrating, or of controuling it; multifarious indeed, but in general unsatisfactory; containing rules of construction, as well as principles and reasoning from them by different judges, in many cases obscure and contradictory.

In bringing these into review, the gentlemen of the bar on both sides, have ably discharged their duty, in giving the court full information on this complicated subject.

*That the testator’s intention is to be the general rule of construction, was laid down soon after the statute of wills. It has never been, contradicted, but is amplified, rather than restrained in all subsequent instances.

The exception to this rule, “that he shall not be allowed to controul or change settled principles of law, as established by the judges,” seems to be as fixed as the rule itself.

But another exception, that t'he intention shall not interfere with the established rules of construction, which judge Blackstone states, as of a flexible nature, has produced in its application, a variety of reasons and decisions, which I am not able to reconcile, and therefore am inclined, as I always have been, to look to the will itself, and not to those unsettled rules of construction.

That the testator intended to devise an estate for life to James, could not be made more manifest than from the will itself, if confirmed by one from the dead, even if that were the testator himself.

But if a subsequent part of the will shews a manifest intention, tho’ not so strongly expressed, to provide for all the male issue of James, and both intentions cannot stand, that of the devise for life must yield to the other, which is supposed to be most important in the testator’s mind.

Cases may be classed into those, where the conflict of intention arises from express devises in the will, and those, where they are to be implied from what is expressed. To the first sort, the case of King v. Melling applies. A devise to A for life, remainder. to the issue of his body by a second wife, remainder over; A, was adjudged to take an estate in tail, as the only means of providing for the issue, who could not take as purchasers, not being in esse, and could only take through the ancestor; and for that purpose, the estate for life was turned into an inheritance according to the rule in Shelley’s case. This case is constantly referred to, in most, if not in all subsequent cases, and its principle, as well as its authority is no where denied.

In questions of this sort, it has been thought a circumstance of considerable weight, that issue must be taken as a word of limitation, where no words of inheritance are superadded in the devise, because in such a case, if the issue take by purchase, they would only take an estate for life. From hence a distinction has arisen, that where words of inheritance have been superadded in the devise to the issue, the issue has been adjudged to take by purchase, so as not to enlarge the estate of the ancestor; and *this was Archer’s case, 1 Cooke 66, and in several cases since. But in others, it has been decided not to have produced that effect, and the point has been determined upon another circumstance, to wit: that of the issue being in e=se at the death the testator, or of the tenant for life, or within a reasonable time after; as in the case of a devise to the heirs of I. S., who is living. And under this distinction, the ' parties have rightly agreed, that the devise to the surviving sons did not enlarge the estate for life in James, since the surviving sons not only might, but must take as purchasers, being to take, not in succession, but as tenants in common. The part of each son would descend to his male issue, which would thereafter go in succession in tail male to the eldest son, and would not, (as the appellee’s counsel supposed,) continue to go in common to all future generations. So far then, the estate for life is preserved, being consistent wtih the other intention to provide for surviving sons.

But the difficulty results from the testator’s being supposed to have devised the land to his male issue, upon the contingency of his having no surviving sons, which it is said, he manifestly intended, from having given over the estate to Mus-coe, upon the death of James without male issue, thereby shewing that he did not intend Muscoe to take the land, so long as there were any male descendants of James. We come therefore to the second class of conflicting intentions, not collected from express devises to the issue, but to be implied from what is expressed, on which subject, there are a number of cases, the decisions in which are extremely various, and sometimes contradictory. But the most prevailing rule seems to be, that an express devise for life, is not to be changed into an estate of inheritance by implication, unless that implication be a necessary one, because the testator’s intention to be collected from the whole will, cannot otherwise be effectuated. To take up the present case on this rule. If there be any apparent intention to provide for the issue male of James, in case there were no surviving sons, or in case their male issue should fail, it is evident, such provision, (if the case happened) could no otherwise take effect, than by a descent from James, and by that means changing his estate for life into an estate tail, thereby producing that sort of necessity, which will admit a devise even by implication to controul an express devise.

The case furnished by the will, of a chasm between the provisions for part of the issue of James, and the limitation over upon the failure of his whole male issue, though uncommon, is *not new. The case of Tangly v. Baldwin, seems to apply directly to it. There, the testator gave to his grandson an estate for life without impeachment of waste, and with power to make a jointure to his wife for life, and after his death, devised to his six sons, one after another, in tail, and made provision for no other sons; but added, that if his grandson should die without issue male, the estate should go over. It was adjudged, that from the express limitation over, the testator intended to provide for all the issue male of his grandson, altho’ they should not be one of the six; and as that could not be effected any other way than by descent from the grandson, the court adjudged him to take an estate tail, tho’ expressly given for life.

The same thing was done in the case of the Attorney General v. Sutton, where a provision was made for two sons only of the tenant for life, with a limitation over upon his dying without issue male of his bodj'. Here then are two according decisions, which apply to the case at bar in terms, and in principle, and if not contradicted, must be considered as fixing a rule of property. The case of Popham and Bamfield is produced in opposition to those I have just mentioned. That was a devise to Popham for life, remainder to his first &c. son successively in tail male, and for want of issue male of Popham, remainder over.

An attempt was made to bring this to the former cases, by supposing that there was a chasm between the provision for the sons, and the limitation over, and this could only happen, and might happen in the case of a posthumous son, who it was said could not take under the provision. Whether he could or could not is immaterial. The answer which the court gave was, that though it might have been intended that such posthumous son should take, yet the testator was herein mistaken as to the law, or he might not consider of it, being a remote mischief or contingency, and therefore supposing he had made provision for all the sons of the tenant for life, his intention might be complied with, without enlarging the estate for life, and both intentions might be preserved. Without taking notice, that this case, being produced afterwards in the case of Blackborn v. Sdgley, the court is said to have exploded the notion, that words of implication should not turn an express estate for life into an estate tail, I observe, that the case in principle does not contradict the former cases, being unlike them in this, that in that all the sons are provided for. This curious case may happen; Muscoe Gar-nett takes this estate in remainder, as well as all the lands devised immediately to himself, in the same manner as James did; *if he has several sons, and they should marry, it may happen, that all of them may die in his life time, and some, if not all of them leave sons, and his whole estate may go over in remainder from his grandsons, upon the principle he now contends for, that an implied remainder to the male issue shall not be admitted. This possibility, gives a striking proof of the impropriety of departing from established rules of construction.

An objection is then made, that the intervening bequest to the surviving sons, between the devise for life, and that to the issue by implication, prevents the union of the two last mentioned devises. The rule in Shelle3r’s case enlarges the estate for life, into an inheritance, where the devise to the heirs or issue is mediate or immediate ; the former describes the case of the present devises. In Reame on contingent remainders 25, it is said, that the only difference between the limitation being mediate or immediate is, that in the latter case, the tenant for life takes an estate tail in possession, and in the former, he takes the estate tail in remainder, dependent upon the determination of the intermediate estate. So that this objection seems to have no weight.

Another point made was, that under the implied limitation to the male issue, the}" might take as purchasers, since they were to take not in succession in tail, but as tenants in common, in the same manner as the surviving sons were to take. This has been mentioned before, not to have been the testator’s intention, or if it had, it was controuled by one of the rules of law, stated to be inflexible, to wit: that testator could not make his land descend to all his sons, instead of the eldest. So that upon the whole, it seems to me, that if there were nothing more in this case, that the point which has been noticed, the court would be compelled to adjudge, that James took an estate tail in remainder, expectant upon the determination of the estate tail to the surviving sons. But tho’ I am well satisfied in this opinion, some of the other judges doubt about it, and we thought it unnecessary to decide that point, since admitting that James took such an estate tail in remainder, we are all of opinion against the appellant upon two remaining points.

The first depends upon the devise to the trustee. The trust commences at the death of James, so as not to include the estate for life devised to him; it comprehends the contingent remainders to the surviving sons and to their male issue, and the implied remainder to the male issue of James. Perhaps it goes farther, and extends to all the subsequent remainders, since after the estate for life to Muscoe, a further trust is declared, without *naming a new trustee, or without a devise to such new trustee. The legal estate in fee therefore, in trust for the surviving sons in tail male, interposes between the estate for life of James, and the implied remainder to his male issue, which is supposed to enlarge the former into an estate tail.

To admit that effect, and to describe the whole interest which James took in the lands; he was tenant for life in possession, with remainder in tail male expectant upon the determination of the estate tail devised to his surviving sons. And we come to consider, what operation the statute of uses will have on this estate under the devise to the trustee.

The statute gives the legal estate to him that hath the use, so that there must be an use, before the statute can operate upon it.

In Powell on Devises 283, it is said, that as to persons in esse, the. legal estate is executed immediately, and as to persons not in esse, it vests immediately upon their coming into being if they come in good time, otherwise, it goes over to the next remainder man. To apply this. Here was a trust for surviving sons, and for male issue not in esse, and whb never came into being, it being stated, that James never had a son in whom either use could vest. The good time therefore, for them to come into esse, was expired at the death of James, and the estate either remained in Muscoe as the trustee, (the trust not being executed by the statute, but remaining at common law,) or the estate passed over to him as the next remainder-man, either of which defeats the appellant’s title.

But then a question arises upon the act of 1776, whether this was such an estate tail in James, as was by the act turned into a fee simple.

The act operates upon all estates tail in possession, and those in reversion or remainder, after the determination of an estate for life, or lives, or of any lesser estate. James’s estate has been described as an estate tail in remainder, ' after the determination of a preceding estate tail. It was therefore a greater estate than for life or lives, and consequently not within the operation of the act, so as to defeat the remainder to Muscoe, now to take effect, as there are neither surviving sons, nor male issue in his way.

So that upon these two grounds to wit, 1st, that the estate at law remained in the trustee for want of a person coming into esse in whom the use could vest, or when that event was become impossible, passed over to Muscoe as the next remainder-man, and first cestui que use in esse.

*2dly, That James being seized of an estate tail in remainder, after the determination of a prior estate tail, is not such a tenant in tail, whose estate is to be changed into a fee simple by the act of Assembly of 1776.

The law therefore is in favor of the ap-pellee, and the judgment of the District Court is to be affirmed.  