
    Keating and Wife against Reynolds.
    
      A. having two daughters, JB. find C. devises to each of them, and to the heirs of their body for ever, certain personal chattels; but jf they, the said É. and C. should die without having a lawful heir of their body to live, then he devised the said chattels to be 6f equally di- “ vided to the e< survivors.” JB. marries, and has issue now alive; C. likewise marries, and has a child born a-Jive^ut which dies a few days after its birth ; and after its death, C. the mother, dies, without leaving any issue alive at the time of her death. This limitation over to JB. is not a limitation over after an indefinite failure of issue ; and therefore good'.
    THIS was another case from Beaufort district. The action was trover for sundry slaves, and the right of property turned upon the construction of a will, and the limitation over of personal chattels. The jury had found a special verdict, subject to the opinion of the court, as follows, viz.
    “ That Samuel Thorpe, in his life-time, duly made and “ published his last will and testament, bearing date the 6th “ December, 1777, and soon after departed this life. That in “ and by the said will, he gave and devised to his son, Sa- “ mnel Thorpe, a tract of land, containing 500 acres ; a house “and lot in Beaufort, together with the fourth part of his “ stock of horses, cattle, &c. and twelve negro slaves, to “ wit, (here naming them,) to be at the said Samuel Thorpes “ own disposal at the age of twenty-one, and not before. “ But if the said Samuel Thorpe should die without issue of “ his body, then, and in that case, the said slaves and lands “ should be equally divided between his daughters, Martha “ and Sarah Thorpe, and their heirs for ever. That he de“vised and. bequeathed to his said daughter Martha, the ufourth part of his stock of horses, cattle, &c. together “ with fourteen negroes, to wit, ('here atso naming them,') to “ her the said Martha Thorpe, and the heirs of her body for il ever. That, in like manner, he devised and bequeathed “ to his daughter Sarah another fourth part of his stock of il horses, cattle, &c. with fourteen negroes, viz. (here named,) “ to the said Sarah Thorpe and the heirs of her body for “ ever. But if the said Sarah and Martha Thorpe should •“ die with (out, he intended, it is supposed) having a lawful w heir of their body to live, then, and in that case, he gave M and devised those slaves above mentioned, them and their “ increase, to be equally divided to the survivorsThe special verdict further stated, that after the death of the said Samuel Thorpe, his son, Samuel, died under age and intestate ; that after the death of Samuel Thorpe, the son of the testator, the present plaintiff, Keating, married Sarah Thorpe, one of the daughters and legatees of the testator, and that they had issue now alive. That James Norris married Martha, the other daughter, and had issue bom alive, but which died a few days after its birth, and that after the death of. the child, Martha, the mother, died, without leaving any issue alive at the time of her death’; that at the time of the death of the said Martha, the said James Norris, her husband, was possessed of the negroes and stock bequeathed to her, by her father, and soon after sold part of the said negroes, to wit, Adam, Hannah, and young Adam, to Reynolds, the defendant in this action, who refused to deliver them up ; the jury, therefore, submitted to the court, whether, upon the whole of the above facts stated, the plaintiffs .were entitled to the negroes in question, or not ? That if the plaintiffs were entitled to them, then they found for the plaintiffs ; but if not, then they found, &c. for the defendant.
    
      Desaussure, for the plaintiff,
    laid it down as a maxim in law, that in the construction of wills, the intention of the testator should be the guide. That wherever that intention was manifest, from the words in the will, the words them* selves, and the true meaning and import of them, ought to govern. But in cases of doubt and obscurity, courts would g° Sreat lengths, in order to effectuate the general intention of the testator, if consistent with law. To support this doctrine, he quoted 1 Burr. 50, 51. 233.272, 3. 2 Burr. 1111.' 3 Burr. 1581, 2. 1622. 4 Burr. 2249. Cowp. 31. That the intention of the testator was plain and evident from the tenor of this will. He obviously intended, that his children should possess his estate, in preference to strangers ; and that in case of the death of either of them, without leaving children, that the share or portion of the child so dying without issue, should go over to the survivor. The words of the will, which evince the intention, are these ; “ But if the said Sarah and Martha Thorpe u should die with (out) (the syllable “ out” being omitted 44 through a clerical mistake in the 'person who drew the 64 will) having a lawful heir of their body to live, then and u in that case he gave and devised those slaves above men-44 tioned, and their increase, to be equally divided to the 44 survivors.” From the phraseology of this clause, it is certain, that the will was not drawn by an accurate lawyer or draftsman, but it is sufficiently clear at the same time to show the testator’s meaning, to wit, that if either of his said children, or daughters, died without issue, the share of that daughter or child should go to the survivor. This then being dearly the meaning of Thorpe, the testator, tire only question for the court was, whether there was any rule of law against this limitation over to the survivor. Upon this last point, he conceded, that a limitation over of a personal chattel, after an indefinite failure of issue, was void. The policy of the law was against it, because of its having a tendency to create perpetuities in a chattel interest, which the law abhors. The cases in 2 Black. 398. and 1 Peere Wins. 290. were both in point against such limitations. But he contended, that if the limitation over be confined to such issue as shall be living at the time of the death of the first, taker ; or, if the limitation over is to take effect in the life
      time of any person or persons then in being ; or if it is confined to a certain number of years, that then, and in either of these cases, the limitation was good, and such as the law will maintain. In these cases, the generality of the expressions, “ heirs of the bodyf or “ issue fi which would look forward to an indefinite failure of issue, is qualified by being reduced to a certain number of years, or to a life or lives then in esse, &c. This doctrine is established and confirmed by a variety of adjudged cases. In the case of Lamb and Archer, (1 Salk. 225.) the testator li. devised a term for years to A. and to the heirs of his body, and if he die without issue living-, then to B. The court held this a good limitation over to B. the contingency happening or arising -within the compass of a life then in being. The present case then comes exactly within the rule of law laid down in that of Lamb and Archer. , Here, he said, the limitation is to the issue of Mrs. Norris, living at the time of her death. But, in default of issue, then to the survivor, who is Mrs. Keating. The contingencies happened too in the life-time of Mrs. Keating, for both her sister and infant died while she was living. They were both in the compass of her life. So that in fact this limitation is confined to the issue of Mrs. Norris, living at the time of her death ; but on failure of such issue, then to take effect in the life-time of Mrs. Keating then living. So likewise in Fletcher’s case, 1 Eq. Abr. 193. a devise of a term was to F. but if F. should die before the term expired, without having issue of his body then living, remainder over to D, This was held a good remainder. In this last case, the limitation over was upon this contingency ; if he die without issue then living, that is, at the time of his death, which is good, because the contingency must happen within one life, or not at all; for upon his death it will certainly be known whether he leaves issue or not. If he does, the contingency cannot take place. If he does not, then it may ; and this being to happen within the compass of a life, is good as an executory devise. In Peere Wms. 534. A. devised his personal estate to bis two nephews, B. and C. and if either of them should die without children, then to the survivor. It was held that dying without children, must mean, children living at the death of the party ; because the immediate limitation over was to the survivor, consequently the devise over was a good devise.
    The other cases which were quoted as in point, and remarked on, were Sheffield v. Lord Orrery. 3 Atk. 283. 7. Forth and Chapman. 1 P. W.ns. 663. Atkinson and Hutchinson. 3 P. Wms. 250. Harman and Dickinson. Brown’s Rep. 91. Duke of Norfolk’s case. Fearne, 354, 5, 6, 7, 8, &c.
    Holmes, for defendant,
    admitted, that in the construction of wills, the intention of the testator ought to govern, unless the devise is contrary to the policy of the law; in which case the law was paramount to the will of the testator, and would control the intention, That the limitation in this case was only of the personal property. That chattels might be limited over in particular cases ; but wherever it was after an indefinite failure of issue., it was too remote, and the property vested in the first taker. He cited and principally relied on the case of Beauclerk and Dormer, (2 Atk. 308.) The question in that case arose upon the construction of a clause in General Kirk’s will. Kirk, in his will, says, “ I make Miss Dormer my sole heir and executrix, and if she dies zuithout issue, then to go “ to Lord George Beauclerk.’’ A bill was afterwards brought by Lord Beauclerk, to have an inventory taken from the defendant, Miss Dormer, on oath, of all the personal estate of Gen. Kirk, and that the complainant’s interest might be established by a decree of the court, and that the inventory might remain as evidence of the personal estate, in case the contingency should happen, But Miss Dormer refused it, and insisted that she had an absolute right both to the real and persona! estates, and that she was not obliged to account. Lord Bardzcicke held, that the limitation over was void, gnd cannot be confined to the defendant’s dying with-. 
      
      out issue living at the time of her death, and therefore dismissed the plaintiff’s bill. In the above case, the same grounds were taken for the complainant, as those relied on by the plaintiff in the present case ; namely, that it was the intention of the testator, that if the defendant died -Without issue living at her death, that then Lord George should take. And it was contended, that the vulgar meaning of the words “ dying without issue,” had always been regarded by the court, as having no issue at the time of the death. Yet the Lord Chancellor said, “ I do not think the con-u struction contended for on behalf of the plaintiff, is sup- “ ported by any one case whatever 5 and therefore as the e‘ words in the will are general and unrestrained., the limita-e‘ tion over must be void.” So likewise it was contended, that the words in Thorpe's will were general and unrestrained ; that they comprehended and took in a whole generation ; that they were like heirs of the body, which created an estate-tail, and extended not only to the immediate is.sue, but to all who might descend from her from generation to generation. Consequently, the limitation over was too remote, and not warranted by the rules and policy of the law. The case of Reid v, Snell, 2 Atk. 647. is also in point, where it is laid down, that a limitation over after a general dying -without issue, is bad.
    
      Pinckney, on the same side,
    
    urged, that all the cases cited for the plaintiff related to implied estates-tail, and not to express ones. That this was an express estate-tail, and being of a personal chattel, vested the property in the frst taker. Fearne, 345. 1 Fez, 154. 2 P° Wins. 290. Daw v. Pitt, Fearne, 347. Brozvn's Cha. Rep. 170. 188. But considering the estate as a conditional fee, still the condition was performed by having issue, which vested the property absolutely in Mrs. Norris, the devisee. The language of the law on this occasion, was simply and plainly this. That the testator meant to give the negroes in question to his daughter Martha, provided she had issue. She bad issue. Consequently, the condition upon which she was to have the estate being performed, the property absolutely vested in her upon the performance. That even if , .. . . „ . . „ the limitation over was good originally, yet the marriage or Martha, and her having issue, destroyed it; and it would be against the rights of marriage to deprive the husband of the property acquired by his wife.
    Rutledge, in reply.
    It is certainly the duty of the court to support the intention of the testator, if it is clear. In this will there is a double contingency, to wit, the dying without issue by Mrs. Norris, and a survivorship of Mrs. Keating. With respect to the first, it is clear, that the dying without issue, ought not to be construed, an indefinite failure of issue ; but a dying without issue living at the time of her death. The words are, “ but if the said “ Sarah or Martha should die without having a lawful heir “ of their body to live, then, and in that case, to the sur- “ vivor.” The words, “ to live,” plainly mean, living at the time she should die, or at the time of her death, and clearly qualify the generality of the expressions, “dying without issue,” which brings this case within one of the rules of law, mentioned by the first counsel, to wit, that the limitation was good, if confined to such, issue as should be living at the death of the first taker. The word “ thenfi which immediately follows the words “ to live," is a word of reference, and confirms this construction, as it relates back to the determination of the first estate, or contingency, and commences the sentence which carries the property over to the second contingent person, Mrs. Keating, then living, which carries this case also under the second rule first laid down by his colleague, to wit, “ that the limitation “ is good, if to take effect in the life-time of any person “ then in being.” In support of this legal position, 2 P. Wins. 686. Duke of Norfolk's case, Cozup. 9* 600, 1 Eq. Ga. 193. 1 P. Wms. 534, &c.
   The judges took time to consider this case, and after-wards, on the adjournment day of July term, 1789, delivered their opinions.

Grimke, . J.

said he had been so much indisposed during the argument, as to have been unable to give the case the attention which it merited. He had, however, perused the opinion of Waties, J. and concurred with him, for the reasons he assigned.

Waties, J.

Personal estates may be limited over, as well as real estates, provided such limitation has not a tendency to create a perpetuity. Every thing, therefore, depends upon the remoteness of the contingency. In the present case, I am of opinion, that the limitation is good, being within those reasonable bounds which the policy of the law has prescribed. To my mind, there are two things for the consideration of the court. First, the intention of the testator ; and, secondly, whether the law will carry that intention into execution. As to the first point, it is very evident that the testator intended to benefit his own children, and that his estate should go to them in pi'eference to strangers; and that in case of the death of either of them, without issue, it should on that event go over to the survivor. As to the second point, 'whether the law will carry such intention into effect, I admit, that if the intention is not consistent with the rules of law, the court could not effectuate it. Moreover, that if there were no words in the will controlling the general words creating an estate-tail, the legal doctrine must prevail, and the property would vest in the first taker. And further, that the testator’s intention to control the general words must be express, or arise by strong implication. 2 Vez. 642. Having consented to and laid down these general positions, I proceed to examine the will. The will gives the negroes in question to Martha Thorpe, but upon the contingency of her leaving no children, (for the words “ heir of her body to a livef mean children? if they mean any thing,) then to the survivor. This term “ survivor” is a term of much import here. It carries with it the idea of the longest liver, provided the other sister should leave no children behind her; that is, none living at the time of her death, for if she had left a child, that child, or those claiming under it9 must have taken. But as there was none living, then she who should survive, was the person to take. This, then, is not a limitation depending upon a remote, but a very limit» ed contingency. One which was to happen in a very short period, during the life of a person then living, and cannot be called a limitation, after an indefinite failure of issue, to a person not then in esse. One of the best rules for construing wills is that laid down in Doug. 327. to wit, “ If a testator makes use of legal phrases, or technical “ words only, the court is bound to understand them in the “ legal sense. They have no right to say that the testator “ did not understand them, or to put a construction on them “ different from what has long been received, or what is “ affixed to them by law. But if a testator use other words, • 4‘ which manifestly indicate what his intention was, and “ which shew that he did not mean what the technical “ words import, the intention must prevail, notwithstand- “ ing he has used technical words, in other parts of his “ will.” In the present case, it is true, that the words “ heir of her body” are mentioned; and if they stood alone, and unqualified by any other words, explanatory of the testator’s intention, they would create an estate-tail ; consequently, the limitation would be too remote. But the words “ to live,” immediately following the foregoing words “ heirs of her body,” shew that his idea was children living at her death : and the limitation over, upon, the contingency of her leaving no children, to the survivor is a sufficient description to the person he meant should take, so as to bring this case within the rules of law in support of the limitation. A devise to the survivor is of itself sufficient to support the limitation. Fearne, 338. The cases I rely on are 2 Fez. 642. 10 Mod. 403. Lamb and Archer’s case, in Salk. Cha. Rep. 170. Fearne, 363. and upon looking into them, and considering all the circumstances of this case, I am clearly of opinion, that the limitation over to Sarah, the surviving daughter, is a good one, and the plaintiffs ought to recover.

Drayton, J»

observed, that this was a case of consider» able importance and difficulty. Great judges had entertained different opinions as to the doctrine of limitations over ; and he hoped this would be a sufficient apology when he was about to say, that he differed from his brethren in this case. From the best view he had been able to take of it, he. said, it struck him in a very different light to what it had done them. Two questions presented themselves to his mind. First, whether the limitation over was good or not ? Secondly, whether the survivorship was not restricted to the dying without issue, and under twenty-one years of age ? The law, he observed, was clear, that a limitation of a chattel over after an indefinite failure of issue, was void. He conceded at the same time, that in the present case, the limitation over did not appear to be too remote. For although the general words in the will, appeared to be after an indefinite failure of issue; yet the subsequent controlling words restricted them, and made it a good limitation. On this point he agreed with his colleagues j but on the second point, he differed from them entirely. He conceived the words here, shewed that the testator intended the survivor should only take, in case of a dying without issue, generally, or under twenty-one years of age. This would appear by an examination of the clause which relates to the son. In that clause the estate was to be at the-son’s disposal, at the age of twenty-one, and not before. So with regard to the daughters, the same rule of construction ought to be given ; that the negroes were to be at their disposal at the age of twenty-one, and not before ; and if either of them died before that time, without issue, then to go over to the survivor. But Martha arrived to the age of twenty-one years and upwards, and, therefore, the contingency could not happen. The right of survivorship was done away on her coming of age, and marriage; of course, the property vested in Norris, in right of his wife. The authorities he remarked and relied on, were Stringer and Philips, í Eq. Cas. Ab¡% 292. Rose and Hill, 3 Burr. 1885'. Hawes and Hawes, 1 Wils. 16o. 3 Bac. 438.

The postea was, therefore, delivered to the plaintiffs.  