
    John Doe, on the demise of Letitia Harrington, v. Richard Roe, casual ejector, and John W. Dill, Tenant in possession.
    A devise to a son of the testator of a farm or tract of land by his paying a grandson of the testator two hundred and fifty dollars, without interest, when he shall arrive at the age of twenty-one years, which the said farm shall' be bound for, to him the said son and his heirs forever, but if the said son should die leaving no lawful heir of his body who shall arrive to the age of twenty-one years, then the farm, with the aforesaid condition, the testator willed and bequeathed to the remainder of his sons then living, without words of inheritance or limitation, is a devise in fee both to the first devisee and to the remaindermen, because of the Charge upon them, in respect of the farm, of a gross sum to be paid to the testator’s grandson.
    A general devise, without words of inheritance or limitation, carries but a life estate to the devisee ; hut this rule being one of technical restriction, is subject to the following exceptions. If there be no residuary 1 devise in the will, and the intention of the testator clearly appears to dispose of the whole of his estate, a general devise will be enlarged to a fee to carry out that intent, if it can be applied to the devise in question. Where the testator .uses terms which apply to his interest in the land, and not merely to the land itself, a general devise of such interest will carry a fee, if such was his interest in the premises ; as when he devises his “ estate” at such a place; his “ right,” or his “part” of an estate held with others, or his “share,” referring to his interest and not to the corpus of the property. But where the term employed applies more properly to the land itself, than to his interest, or estate in it, a general devise carries but a life estate; as in a devise of “my house,” or “ farm,” or “ part of my house,” “ farm,” or “ plantation,” at such a place. If, however, there be a charge on the devisee in respect of the land devised to Mm, and not merely a charge on the land itself, it will enlarge the general devise to afee; for otherwise, the devise might prove'injurious to the devisee. The devise above stated falls under this last exception, and makes the devise over on the happening of the contingency mentioned, to the remaining sons of the testator then living, a devise in fee, and consequently is an absolute defeat of the estate first given to the son in the preceding devise, which the Court construed to be a devise to him in fee simple, defeasible on his death without lawful heir of his body who should attain full age, with an executory devise over in fee to the remainder of the sons of the testator then living.
    In another item of his will, the testator devised to his two sons, N. and B., a tract of land, to them and their heirs forever, but if either, or both of them should die leaving no lawful heir of their body who should arrive to the age of twenty-one years, then the part or parts of the aforesaid tract of land, he willed and bequeathed to the remainder of his sons then living. In another item of his will he devised to his son J. a lot of ground, containing thirty-five or forty acres, to him and his heirs forever, but if the said J. should die leaving no lawful heir of his body who should arrive to the age of twenty-one years, he willed and bequeathed the said lot to the remainder of his sons then living; and in another item he devised to his sons S. and H. his home farm, to have possession after the death of their mother, to them and their heirs forever, and then added, “ I also direct my said sons S. and H. to pay my grandson J. L. five hundred dollars, without interest, when he shall arrive to the age of twenty-one years, for which the said farm shall be bound ; but if either or both of them should die having no lawful heir of their body who shall arrive to the age of twenty-one years, then the part or parts of the aforesaid farm I will and bequeath to the remainder of my sons then living.” The residuary clause of the will was as follows: “ I will and bequeath all the balance of my estate, after my just debts are paid, to be divided among my heirs as the law directs.” Held, that the construction of these three items of the will was equally governed by the principles before stated, and that they each contained a devise to the first devisees in fee conditional, with an executory devise for life to the devisees over. As to the question what became of the ultimate interest in the premises after these life estates were determined, it was held by a majority of the Court that the limitations to the first devisees, being in fee conditional and defeasible, the executory devises over for life on the happening of the contingencies upon which they were limited over to the remaining sons of the testator then living, absolutely defeated them and were in total and not partial exclusion of the same; that it could not be considered that they were in derogation merely of the preceding devises in fee to the first takers, and only impaired and abridged their estates pro tanto, and on the expiration of the life estates limited" over, the lands reverted in fee to the heirs at law of the first devisees; on the contrary, the limitations over for life on the contingencies specified, were in entire defeasance of the preceding devises in fee conditional, and on the determination of the life • estates so limited over, the premises passed under the residuary devise in the will to the heirs at law of the ¿estator.
    This was an action of ejectment from the Superior Court in Kent County, and came up on a case stated and questions of law reserved for a hearing before all the judges in bank. There was a series of actions and cases stated of the same nature, which were brought up with it on questions of law, reserved at the same term and to be heard in like manner; all of which depended upon the will of Isaac Graham, deceased, and involved more particularly the construction of the devises to his sons Nathaniel and Robert, William, Isaac and Samuel and Henry Graham, contained in the third, fourth, ninth and tenth items of it respectively, which were as follows : “ Item third. I will and bequeath to my two sons' Nathaniel and Robert, all that tract or parcel of land whereon there is’ a brick house, formerly owned by Hinson Graham, containing 283 acres .more or less, with the improvements thereon, to be equally divided as to value, but Nathaniel to have the buildings, to them and their heirs forever; but if either or both of them should die, leaving no-lawful heir of their body who shall arrive to the age of twenty-one years, then the part or parts of the aforesaid tract of land I will and bequeath to the remainder of my sons then living. Item fourth. I will and bequeath to my son William, the farm or tract of land where my son Samuel now lives, containing ninety-three' acres, more or less, with the improvements thereon, by his paying Edmund .Graham, my grandson, two hundred and fifty dollars, without interest, when the said Edmund shall arrive at the age of twenty-one years, which the said farm shall be bound for, to him said William and his heirs forever; but if the said William should die leaving no lawful heir of his body who shall arrive to the age of twenty-one, then the farm with the aforesaid conditions I will and bequeath to the remainder of my sons then living. Item ninth.. I will and bequeath to my son Isaac, a lot or parcel of land, beginning at the road leading from Vernon to Greensville, midway between the house where Eli Pratt now lives and the house where Nathaniel Graham now lives, at the beginning of the lot devised and described in item second of this will, and running with said lot along the fence to the back of the garden, then with the fence along the back of that garden, and the garden where Maloney now lives, to the garden of the white house, then running square to the left, and running down to the ditch to the road leading to Verrion to a bridge, then leaving said lot described in item second, and turning and running with the road from Vernon towards the brick house mentioned in item third, and running with the tract described in said item to a bridge and small ditch near the .barn, then turning and running down small ditch to a fence and larger ditch on the division line between my land and Emory Graham’s, then leaving the tract described in item third, and running with said division line into the road at Vernon, and then with said road to the place of,beginning, containing thirty-five or forty acres, more or less, with the improvements thereon, to him my son Isaac, and his heirs forever; but if said Isaac should die leaving no lawful heir of his body who shall arrive to the age of twenty-one years, then the said lot or parcel of land I will and bequeath to the remainder of my sons then living. Item tenth. I will and bequeath to my two sons Samuel and Henry, all of my home farm where I now live,'containing two hundred and forty acres, more or less, with the improvements thereon, to have possession of after the death of my beloved wife Ruth, their mother, and to be divided equal according to value. I also direct the aforesaid Samuel and Henry to pay my grandson Jacob Lewis five hundred dollars, without interest, when said Jacob shall arrive to the age of twenty-one years, for which the said farm shall be bound, to the said Samuel and Henry and their heirs forever ; but if either or both of them should die leaving no lawful heir of their body who shall arrive to the age of twenty-one, years, then the part or parts of the aforesaid farm I will and bequeath to the remainder of my sons then living.” The residuary devise, or item twelfth of the will, was as follows: “ I will and bequeath all the balance of my estate, after my just debts and liabilities are paid, to be divided among my heirs as the law directs.”
    The series of cages involving the construction of the several devises above stated, were argued together on the following statement of facts agreed upon by the counsel of the respective parties. The testator died in the month of February, 1845, leaving to survive him the following heirs-at-law : six 'sons, to wit, Henry, William, Isaac, Nathaniel, Robert, and Samuel, and two daughters, Letitia Harrington, widow of Henry Harrington, deceased, and Mary the wife of Benjamin Callaway, and two grandsons, Edmund Graham, the only child of his deceased son Jacob, and Jacob G. Lewis, the only child of a deceased daughter, Ann Lewis. Henry, the son and devisee of the testator named in the tenth item of his will, died in May, 1845, without issue. William, the son and devisee of the testator named in the fourth item of the will, died in December, 1845, without issue. Isaac, the son and devisee named in the ninth item of the will, died in May, 1849, without issue. Robert, the son and devisee named in -the third item of the will, died in May, 1850, also without issue. Nathaniel, the son and devisee named in the same item of the will, died in November, 1846, leaving two children, George and Ann, of whom the latter is dead without issue, George still surviving; and Samuel, the son and devisee named in the tenth item of the will, and who was the last survivor of the six sons of the testator, died in July,-1854, leaving six children, of whom five are still living. . Edmund Graham, the grandson of the testator, died in February, 1855, without issue, but leaving brothers and sisters of the half-blood as his heirs-at-law. Letitia Harrington, lessor of two of the plaintiffs, and Mary Callaway, wife of Benjamin Callaway, also lessors of two of the plaintiffs, and daughters of the testator, and Jacob G. Lewis, son of Ann Lewis) deceased, and grandson of the testator, are still living. Since the death of Henry, the right, title and interest of William, Nathaniel, Isaac, and Robert, in the undivided half of the premises devised to him as aforesaid, has become legally and duly vested in Samuel, by sundry conveyances. Samuel also paid the legacy of five hundred dollars, bequeathed to Jacob G. Lewis to be paid by Samuel and Henry, on the 16th day of January, 1849. The defendants in the series of actions referred to, were tenants of distinct parts of the several premises devised in the aforesaid items of the will, and hold the same under the1 heirs-at-law of the said Samuel, who is now dead. All the heirs-at-law of the testator were not parties to the several actions above referred to, the several cases stated embracing only the said Letitia Harrington, Jacob G. Lewis, and Benjamin Calla-way and Mary his wife, as the real party plaintiff in each of them respectively. The suits were consequently for the recovery of their several undivided shares as a portion of the heirs-at-law of the testator, in the several tracts of land and premises devised as aforesaid.
    
      Fisher, for the plaintiffs:
    We consider the devises to the sons Robert and Isaac are substantially the same, and involve the same question, and contend that the devises over after the devises to them, being of an indefinite estate, are devises’ for life only; as a devise of land without limitation is a devise for life merely, at common, law, although the statute enacted since the death of the testator has modified and reversed this rule of construction. Gaskin v. Gaskin, Cowp. 657; Bowers v. Blacket, Ibid. 235; Connoway v. Piper, 3 Harr. 482. The four several clauses and devises contained in the will, as set forth in the case stated, being separate and distinct from each other, no other parts of the will can be called in to aid in the construction of them, according to an equally familiar and well-settled principle of testamentary interpretation; and this is all that it is necessary to say at present in regard to the devises to Robert and Isaac.
    The devises to the other two sons, William and Henry, are different, inasmuch as the land devised to the latter is charged with a legacy of five hundred dollars bequeathed to the grandson, Jacob Lewis; but this legacy is expressly charged by the terms of the will on the land devised, and . a charge on the land simply does not enlarge a devise for life to an estate in fee. Saws v. Garlick, 14 Exch. Rep. 698. But it is otherwise, if the charge is personal, that is to say, upon the devisee. It is well settled, however, that if the charge upon the estate is contingent merely, it does not enlarge a devise for life to a devise in fee. Jackson d. Harris v. Harris, 8 Johns. 141. The farm devised to William is charged, in like terms, with a legacy of two hundred and fifty dollars bequeathed to the grandson, Edmund Graham. But both of these legacies are contingent,'being bequeathed to the respective legatees by the terms of the will, “when they should arrive to the age of twenty-one years;” and being of that character, they cannot, as I have before said, enlarge the devises for life to William and Henry, to devises in fee. Jackson v. Martin, 18 Johns. 83. It is true that the la'nguage of the fourth item of the will containing the devise to William is somewhat different from that in which the tenth item containing the. devise to Samuel and Henry is worded; but supposing the charge in the fourth item, in the first instance, to be personal to William and not a charge on the land in his hands, it certainly was not so as to the remaindermen, the remaining sons of the testator then living, to whom it was devised over after his death withqut lawful children; for the terms of the will in' this respect are : “ Then the farm, with the aforesaid conditions, I will and bequeath to the remainder of my sons then living;” which clearly charges the land, in their hands at least, with the legacy to the grandson, Edmund Graham. I have already remarked that these several' devises being contained in separate and distinct items of the will, their meaning and construction must be ascertained and determined without any reference to each other, and it is a .rule equally established that the heirs-at-law are not to be disinherited unless by words of limitation, or by expressions which directly or by inference beyond all doubt show an intention to give an estate in fee to the devisee. Right d. Compton v. Compton, 9 East, 267. There being no such words of limitation, or expressions which indicate an intention, in any of the items in question, to give an estate in fee to any of the devisees in remainder, and the sons named in the will, and living at the time it was drafted, not taking a fee under the devises to them, either by the limitations of the devises or the effect of the charges accompanying them, the plaintiffs claim their respective shares in the several tracts of land and premises in question, in fee, as heirs-at-law of the testator under the twelfth or residuary item of the will, which disposes of all the balance of his estate to be divided among his heirs as the law directs.
    
      Comegys, for the defendants:
    The devise in the third item of the will to the sons Hath aniel and Robert, and the devise in the tenth item to the sons Samuel and Henry, were devises in fee, with executory devises over in fee, on .their death without lawful children, to the remaining sons of the testator then living; and on the death of Henry without issue during the lives of his five brothers, they took an estate in fee in the part so previously devised to him. Likewise, on the death of Robert without issue, leaving only his brother Samuel, the latter took an estate in fee in the part so devised to Robert. Peppercorn et al. v. Peacock, 42 Eng. C. L. R. 192; Bebb et al. v. Penoyer et al., 11 East, 160; Paris v. Miller, 5 M. & S. 409; Doe v. Bacon, 4 M. & S. 366; Doe v. Fawcett et al., 54 Eng. C. L. R. 273; Knight et al. v. Selby, 34 Ibid. 57; Jackson v. Merrill, 6 Johns. 185; Jackson v. Staats, 11 Johns. 337; Anderson v. Jackson, 16 Johns. 382.
    I have cited all these cases tó show that the words part. or parts, share or moiety, carry in a devise over the same estate and interest in the lands devised over which the first devisee took in them under the devise to him; such phrases in such limitations having been held, in all these cases, to have relation to -the interest of the first devisee in the land under the devise to him, as well as the land itself, and therefore to import the same as the word estate in the limi- ' tation over to the devisees in remainder. According, to these decisions, if land is devised to A. in fee, and after his death, if he should die without leaving heirs of his body, Ms part to go to B., without words of limitation, B. will take an estate in fee by virtue of that term so employed.
    As to the legacies charged on the parts devised to William, and to Samuel and Henry, the former was a personal charge on William, and is also charged on the remainder-men to whom his share is limited over, and this" enlarges the devise over toi them to a fee; because the land is devised over to them upon the condition that they pay the legacy. 2 Jarm. on Wills, 171.
    But if the brothers who survived Henry took but estates for life in the part devised to him in the tenth item of the will, then the devise in fee to him in the preceding clause of that item, was only impaired and abridged pro tanto, and Henry, the original devisee, took whatever interest and estate in the part so devised to him, which the five surviving brothers were not entitled to under the executory devise over to them. 1 Jarm. on Wills, 782, 786; Prest. on Titles, 139; Jackson v. Noble, 2 Keen, 590; Hanbury v. Cockerell, 1 Rolls Abr. 835; Whittell v. Dudin, 2 Jac. & Walk. 279; Hulme v. Hulme, 9 Sim. 644; Sturgis v. Pearson, 4 Madd. 411; Phipps v. Akers, 43 Eng. C. L. R. 569.
    
      James A. Bayard, on the same side:
    The testator devises to his six sons, all in absolute fee, with executory devises over' on certain contingencies. The third, fourth, ninth and tenth items of the will are the clauses in controversy. The language of the devises to Hath aniel and Robert and to Samuel and Henry is different from the language employed in the devises to William and Isaac; and I do not think the devise to the latter in the ninth item of the will is in fee, but will show that that is not material. Technical rules of construction in such cases have been much relaxed in modern times, and the courts will now lay hold of many more words to effect the intention of the testator than formerly; and hence the numerous decisions which had been cited by his colleague, in which the courts had held that the words part, share, or moiety carried the interest, or estate as well as the land itself. If the devise over shows an intent to give the estate devised to the first taker which was a fee, the Court will construe it to carry the fee, although there are no words of limitation in the devise over. For, in this connection, what is the meaning of the word part, as referring to the substance, or subject-matter of the previous devise ? Does it not naturally and necessarily import “the estate in the land as well as the land itself? It certainly should, because such is clearly the intention of the testator. Hob. 65.
    But there is another question, which arises as to the devise to William and the devise to Samuel and Henry; and that is in reference to the legacies charged on the land, and bequeathed in those devises to the grandsons, Edmund Graham and Jacob Lewis. Where the charge is in gross, it will enlarge a life estate to a fee. The distinction is, where the charge is on the land solely, it will not enlarge the estate devised; but where the charge is on the person in relation to the land, and notwithstanding the land may also be bound for it, it will enlarge the estate devised; nor is there any truth or soundness in the distinction suggested on the other side, that if the charge be contingent, and not absolute, it will not have that effect. 2 Jarm. on Wills, 171. The words, “ with the aforesaid . condition,” in the devise over after the devise to William, is certainly personal to the- devisees over in that item of the will; for the devise over to them is on condition that they pay the legacy before charged on the land. The same is the case in the devise over of the parts given in the tenth item to Samuel and Henry, although the language is different, and the matter not so clear as in the former devise over just mentioned. The Court will observe, that it matters not that the land is also bound; if the charge be personal to the devisee, it will enlarge the estate. Peppercorn v. Peacock, 42 Eng. C. L. R. 192. But where the charge is on the land, and the land is devised over subject to the charge, such will not be its effect; yet the rule is altogether different when the charge is on the devisee with respect to the land, in which case it will enlarge the estate. In regard to the devise of the home farm, in the tenth item of the will, to Samuel and Henry, I would remark, that that being to take effect in possession on the death of the widow, and charged with the legacy of $500 to Jacob Lewis, to be paid at the age of twenty-one, it might have become payable during her lifetime, and as the land could not have been sold during her lifetime to raise the legacy, it was necessarily in effect a personal charge on Samuel and Henry and the devisees over, and, consequently, enlarged the estate of the latter to a fee.
    But we contend, that if the remainder of the sons, Robert and Samuel, who survived Isaac, the devisee in the ninth item, took but estates for life-, under the 'devise over to the remaining sons then living, in the part devised to him, on the happening of the contingency which gave effect to the devise over in that item, then the devise in fee to Isaac, in the first' clause of the item, was only impaired or abridged pro tanto, and Isaac the first taker, and as such, took whatever interest the surviving sons, Robert and Samuel, were not entitled to under the devise over to the remaining sons then living. And the same is the case in regard to the devise to William, in the fourth item, with the devise over on the contingency mentioned. Isaac’s estate, whatever it may have been, was sold at sheriff’s sale. Because, if land is devised to one person in fee, and a chattel interest, or life estate, is carved out of it for the benefit of another on a certain contingency, it only affects the fee pro tantoor, in other words, it only impairs or derogates from the fee previously given to that extent, and no further. And why should it ? For how can the chattel interest, or life estate carved out of it, cancel the larger estate, or abrogate the fee ? In support of this position he cited the same authorities last cited by his colleague.
    
      
      Fisher, in reply.
    Hone of the terms employed in any of the items of this will import, or can import, under the well-established rules of interpretation in such cases, a fee in the devises oyer. Hor is there the slightest ground even for the conjecture, - that the testator intended merely to carve out of the estates, first given by name to his several sons in fee, life estates in the respective premises devised to them, for the benefit of the devisees over, his remaining sons then living, in case any of the first takers should die. without issue, and to diminish or derogate from the fee first given to that extent, and no further. On the contrary, it was manifestly the design of the testator to give, in the first instance, a conditional and defeasible fee to his sons, which was to divest and cease altogether on the happening of the contingencies mentioned in the several items; and this was the only natural, or even plausible, method of determining his meaning, as well as legal method of construing his will,
   Harrington, Ch.,

announced the opinion of the'Court.

The testator died in 1845, leaving to survive him six sons, viz., Hathaniel, William, Isaac, Samuel, Bobert, and Henry; and two daughters, Letitia Harrington and Mary Callaway; and two grandchildren, Edmund, the only child of his son Jacob Graham, deceased, and Jacob G. Lewis, only child of his daughter, Ann Lewis, deceased. These are his heirs-at-law and residuary devisees, under the twelfth item of his will. Hathaniel died in 1846, leaving two children, George and Ann, the latter of whom has since died without issue. Henry died after his father in 1845, without issue. William also died in 1845, after the death of his father, and without issue. Isaac died in 1849, and Bobert in 1850, both without issue. Samuel in 1854, leaving six children, five of whom are now living. Since the death of William Graham, his interest and title, as also that of Hathaniel, Isaac, Bobert, and Samuel, have become vested in George W. Taylor, and the lessors of the plaintiffs claim in each case six-fortieth parts of the premises in question. These Several cases depend o'n the construction of the several items of the will set forth in'the case stated, and the events afterwards occurring on which any legal contingency that the will interposes depends. In regard to the fourth item, containing the devise to William, there is no doubt that the farm devised to him, and upon a contingency to the remainder of the testator’s sons then living, was a devise in fee, both in the first devisee and in the re- ' maindermen, because of the charge upon them, in respect of the farm, of a gross sum to be paid to the testator’s grandson Edmund. Graham. The general principles applicable to that, as well as the other devises, are. as follows: A general devise without words of inheritance or limitation carries but a life estate to the devisee; but this rule, being one of technical restriction, is subject to the following exceptions. If there be no residuary devise, and the intention of the testator clearly appears to dispose of his whole estate by the will, a general devise will be enlarged to a fee 'to carry out that intent, if such intent can be applied to the devise in question. Cowp. 660. Where the testator uses terms which apply to his interest in the land, and not merely to the land itself, a general devise of such interest will carry a fee, if such was his interest in the premises; as when he devises his “ estate” &t such aplace; his “ right,” or his “ part,” of an estate held with others, or his-“share,” referring to his interest, and not to the corpus of the property. But where the term employed applies more properly to the land itself than to his interest or estate in it, a general devise carries but a life estate: as .in a devise of “ my house” or “ farm,” at such a place, or “a part of my house,” “ farm,” or “ plantation,” at such a place. 11 Johns. 389; 11 East, 162; 54 Eng. C. L. R. 282. If, however, there be a charge on the devisee in respect of the land devised to him, and not merely a charge on the land itself, it will enlarge the general devise to a fee; for otherwise the devise might prove injurious -to the devisee". 18 Johns. 35; 14 Exch. Rep. 689, 705, 710 a.

The devise to William with remainder over if he should die leaving no lawful heir of his body who should arrive to the age of twenty-one, upon condition of their paying two hundred and fifty dollars to Edmund Graham, falls under this last exception, and makes the devise over a fee, and consequently an absolute defeat of the estate first given to William, whatever may have. been the legal character of that estate. The lessors of the. plaintiff therefore cannot recover upon any claim founded on the fourth item of the will, which the Court construes as a devise to William in fee simple, defeasible on his death without lawful heir of his body who should attain full age, with an executory devise in fee to the remainder of the testator’s sons then living. In respect to this part of the case, therefore, it is the unanimous opinion of the Court that the plaintiffs are not entitled to recover. But on the next point of the case the opinion now about to be announced by me is that of a majority.

The construction of the third, ninth and tenth items of the will, is equally governed by the principles before stated; and they each contain a devise to the first devisee in fee conditional with an executory devise for life to the devisees over. And this limitation of the devises over to life estates, raises the question principally discussed in the argument, namely, what becomes of the ultimate interest after these life estates were determined. The plaintiffs contend that the first estate though in fee, but being a defeasible fee, as all agree it is under each of these devises, it was defeated by the happening of the contingencies provided for, namely, the taking effect of the devises over though but for life, and being once defeated it was destroyed, and that the ultimate interest passed tinder the twelfth item of the will, as a residuary devise to the heirs generally of the 'testator, and did not revert to the heirs of the first devisees in fee conditional. For the defendants, on the contrary, it was contended, that on the taking effect of the devises over for life, the preceding devises in fee were not absolutely defeated or destroyed, but were only impaired or abridged, pro tanto, and, on the determination of the life estates, the premises reverted to those interested in the prior devises in fee simple, and passed to their heirs-at-law.

This idea appears to have originated with Mr. Preston, unquestionably a learned text-writer on the law of titles to real property, who claims credit for the discovery, saying, “ That there is a sixth species of executory devise of real property may be concluded from general principles; and it may be defined to be, where there is a devise of an estate of inheritance, or any other estate, and on some event a particular estate to a stranger is introduced to take place in derogation of the estate of inheritance, and to a particular though not total exclusion of the same:” 2 Prest. on Estates, 140. Powell, another equally learned text-writer, approves of the principle suggested by Mr. Preston, but denies that it has any foundation in any adjudged case, and admits that it introduces a new qualification to the position long before laid down by Mr. Fearne, a writer of the highest celebrity, which is, “ That a condition or limitation must determine or avoid the whole of the estate to which it is annexed, and not determine it in part only and leave it good for the remainder Fearne’s Essay, 251, 530. The text of Powell is as follows: “ To this important rule, namely, that an estate subject to an executory devise, to arise on a given event, is, on the happening of that event, defeated only to the extent of the executory interest, the only possible objection that can be advanced is the total absence of direct authority for it; for the books do not'furnish a single example of its application.” The decision in Hanbury v. Cockrell, cited by Mr. Preston, certainly involves no such doctrine, since it simply affirms the validity of the executory limitation to the survivor for life, in the events that had happened, and leaves the question as to the destination of the ulterior interest quite untouched. It is merely, therefore, the instance of a limitation which might have raised the question, and of which the case of Doe d. Sheers v. Jeffery, 7 T. R. 589, affords another example. There also the decision of the Court only established the executory gift for life, and did not dispose of the ulterior interest. w That the point does not admit of any douht upon principle is readily conceded ; for as it is clear that under a devise to A. and'his heirs, and if he shall die under twenty-one, or living B., to B. for life, A. would by the first part of the devise take an estate in fee simple in the lands so given, to the complete disinherison of the heirs; and as the only operation of the subsequent executory lirnitation is to take out of him in a certain event an estate for the life of B., the fee, ultra that life interest, necessarily remains in A.”

The defendants’ proposition seems therefore to rest alone upon the suggestions of two or three respectable text-writers, without the authority of any adjudged case upon the question; and the very definition of the new species of executory limitation seems to contain an assumption of that which is here disputed. That definition is, “ Where there is a devise of an estate of inheritance, or any other estate, and on some event a particular estate to a stranger is introduced to take place in derogation of the estate of inheritance to a partial though not a total exclusion of the same.” But that is just the point in issue, whether these devises over are in derogation of the estate of inheritance .to a partial and not a total exclusion of the same. The contingencies to which the estates of inheritance in these cases were subjected and which rendered them defeasible fees, may with more propriety be said upon their happening to defeat those estates in fee, and to be in total exclusion of the same, than to be merely in -derogation or partial exclusion of them. Neither can it be assumed in these cases, what Mr. Preston’s definition requires to be assumed, that the estates limited over were merely to a partial and not to a total exclusion of the original devises in fee; for though the estates limited over be but estates for life, the residuary item of the will provides for their further and final limitation, and the disposition of the ulterior interest in the premises, if the defeasible estates of the first devisees be defeated by the happening of the contingencies * to which they were made subject, and under which clause of the will, in these events, the ulterior interest in the premises, on the expiration of the life estates, would pass to the residuary devisees of the testator. The contrary doctrine, that such a limitation is only a partial and not a total defeasance of such i a conditional and defeasible fee, is not only contrary to the principle as stated by Mr. Fearne, who says, that a condition or limitation must determine or avoid the whole,of the estate to which it is annexed, and not determine it in part only and leave it good for the remainder, but is against the current of all the other authorities and writers on the subject, who regard such a limitation to a fee'as a condition and a defeasance, which, if it happens, defeats the estate in toto to which it is annexed. The first devisee takes the fee only subject to the condition, and the ultimate estate or ulterior interest reverts to the devisor on the happening of the condition or contingency which defeats the estates given to him, and which is itself then consumed by virtue of its own limitation.

(Our construction, therefore, of the third, ninth, and tenth items of the will is, that the devise in each of them to the first takers is of an estate in fee simple, defeasible on a contingency, with an executory devise over for life, and on the happening of this contingency, the first estate in fee was defeated, and at the expiration of the life estate, the fee passed under the twelfth item of the will to the heirs-at-law of testator.

Gilpin, Ch. J., and Wootten, J.,

dissented from the opinion of the majority of the Court, as announced by the Chancellor on the last point in the case, holding that the devises over of the life estates in the third, ninth, and tenth items of the will, on the happening of the contingencies therein mentioned,- to the remainder of the testator’s sons then living, were in derogation merely of the estates in fee devised, to the first or original devisees in those items of the will respectively named, and impaired and abridged them j'pro tanto only, and that on the determination of the life estates devised over, the premises in question reverted and passed to the heire-at-law of the original devisees in fee, and not to the heirs-at-law generally of the testator under the residuary devise contained in the twelfth item of the will.  