circumstances in the will, to elude or escape the authority of adjudged cases." The idea that testators mean by a limitation over upon the event of the first taker dying without issue, the failure of issue living at his death, is a very prevalent one, but it is probable that, in most instances, testators have no precise meaning on the subject, other than that the estate is to go over if the first taker has no posterity to enjoy it. If the question was to be put to a testator, whether he meant by his will, that if his son, the first taker, should die leaving issue, and that issue should become extinct in a month, or a year afterwards, the remainder over should not take effect, he would probably, in most cases, answer in the negative. In the case of a remainder over upon the event of the first devisee dying without lawful issue, Lord Thurlow, following the whole current of cases, held the limitation over too remote, and observed, that he rather

thought the testator meant the remainder persons

*275 to take whenever there should be a failure of issue of the first taker. Lord Macclesfield declared, that even the technical rule was created for the purpose of supporting the testator's intention. If, says he, lands

Where there was a devise to A. for life, with remainder to her child or children, if she should leave any, and if she should die and leave no lawful issue, then with remainder over; A. survived the testator and had one child, and she survived her child and was left a widow. It was held, that the devise to her chlidren or issue was a contingent remainder in fee, and which, on the birth of a child, became a vested remainder in fee, subject to open and let in after-born children. Macomb v. Miller, 9 Paige Rep. 265. S. C. 26 Wendell, 229. If it had been an estate tail in A. turned by our law into a fee-simple, the remainder over was not good by way of executory devise, because it was upon an indefinite failure of issue. King v. Burchell, 1 Eden. Rep. 424. Doe v. Perryn, 3 Term, 484. Den v. Bagshaw, 6 Term, 512. Doe v. Elvy, 4 East, 313, and 1 Fearne, 141, 3d edit. referred to in that case. Dansey v. Griffith, 4 Maule & Selw. 61. Right v. Creber, 5 Barnw. Cress. 866. Franklin v. Lay, 6 Madd. Ch. Rep. 161. Hannan v. Osborn, 4 Paige, 336.

be devised to A., and if he dies without issue, then to B., this gives an estate tail to the issue of the devisee. And this construction, he observes, "is contrary to the natural import of the expression, and made purely to comply with the intention of the testator, which seems to be, that the land devised should go to the issue, and their issue, to all generations." So, in Tenny v. Agar," the devise was to the son and daughter in fee; but if they should happen to die without having any child or issue lawfully begotten, then remainder over. Lord Ellenborough said, that nothing could be clearer than that the remainder-man was not intended by the testator to take any thing until the issue of the son and daughter were all extinct, and the remainder over was, consequently, void. The same construction of the testator's real intention was given to a will, in Bells v. Gillespie, where there was a devise to the sons, and if either should die without lawful issue, his part was to be divided among the survivors. Mr. Justice Carr declared, that the testator meant that the land given to each son should be enjoyed by the family of that son, so long as any branch of it remained. He did not mean to say, "you have the land of C. if he has no child living at his death, but if he leave a child you shall not have it, though the child dies the next hour." A father, as he justly observed, is not prompted by such motives.

The opinions of these distinguished judges would seem to prove, that if the rule of law depended upon the real fact of intention, that intention would still be open

to discussion, and depend very much upon other *276 circumstances and expressions in the will, in addition to the usual words.

The series of cases in the English law have been uni

■ 12 East's Rep. 253.

b5 Randolph's Rep. 273. Caskey v. Brewer, 17 Serg. & Rawle, 441,

S. P.

form, from the time of the Year Books down to the present day, in the recognition of the rule of law, that a devise in fee, with a remainder over if the devisee dies without issue, or heirs of the body, is a fee cut down to an estate tail; and the limitation over is void, by way of executory devise, as being too remote, and founded on an indefinite failure of issue. The general course of American authorities would seem to be to the same effect, and the settled English rule of construction is considered to be equally the settled rule of law in this country; though, perhaps, it is not deemed of quite so stubborn a nature, and is more flexible, and more easily turned aside by the force of slight additional expressions in the will. The English rule has been adhered to, and has not been permitted, either in England or in this country,

to be affected by such a variation in the words of *277 the limitation over, as dying without leaving *is

sue; nor, if the devise was to two or more per

The number of cases in which that point has been raised, and discussed, and adjudged, is extraordinary, and the leading ones are here collected for the gratification of the curiosity of the student. Assize, 35 Edw. III., pl. 14. Sonday's case, 9 Co. 127. King v. Rumbail, Cro. Jac. 448. Chadock v. Cowly, ibid. 695. Holmes v. Meynel, T. Raym. 452. Forth v. Chapman, 1 P. Wms 663. Brice v. Smith, Willes' Rep. 1. Hope v. Taylor, 1 Burr. Rep. 268. Attorney General v. Bayley, 2 Bro. 553. Knight v. Ellis, ibid. 570. Doe v. Fonnereau, Doug. Rep. 504. Denn v. Slater, 5 Term Rep. 335. Doe v. Rivers, 7 ibid. 276. Doe v. Ellis, 9 East's Rep. 382. Tenny v. Agar, 12 ibid. 253. Romilly v. James, 6 Taunt. Rep. 263. Bartow v. Salter, 17 Vesey, 479.

b For the strict effect of the rule, see Ide v. Ide, 5 Mass. Rep. 500. Dallam v. Dallam, 7 Harr. & Johns. Rep. 2.0. Newton v. Griffith, 1 Harr. § Gill, 111. Sydnor v. Sydnor, 2 Munf. Rep. 269. Carter v. Tyler, 1 Call, 143. Hill v. Burrow, 3 ibid. 342. Bells v. Gillespie, 5 Randolph's Rep. 273. Broaddus v. Turner, ibid. 308. Denn v. Wood, Cameron & Norw. Rep. 202. Cruger v. Hayward, 2 Desauss. Rep. 94. Irwin v. Dunwoody, 17 Serg. & Rawle, 61. Caskey v. Brewer, ibid. 441. Heffner v. Knapper, 6 Watts, 18. Paterson v. Ellis, 11 Wendell, 259. Moody v. Walker, 3 Arkansas Rep. 198. Hollett v. Pope, 3 Harr. (Del.) Rep. 542. • Forth v. Chapman, 1 P. Wms. 663. Romilly . James, 6 Taunt. Rep. 263.

Den v. Shenton, 2 Chitty's Rep. 662.
Daintry v. Daintry, 6 Term Rep.

sons, and either should die without issue, the survivor should take. But if the limitation over was upon the first taker dying without issue living it was held, so long ago as the case of Pells v. Brown, that the will meant issue living at the death of the first taker; and the limitation over was not too remote, but good as an executory devise. The same construction was given to a will, when the limitation over was upon the event of the first taker dying without leaving issue behind him ; or where the will, in a bequest of personal estate only, was to two, and upon either dying without children, then to the survivor or when the first taker *should die and *278 leave no issue, then to A. and B., who were in esse,

or the survivor, and were to take life estates only; or when

307. Croly v. Croly, 1 Batty's Rep. 1. Carr v. Porter, 1 M'Cord's Ch. Rep. 60. Newton v. Griffith, 1 Harr. & Gill, 111. In Carr v. Jeannerett, and the Same v. Green, 2 M2Cord's Rep. 66—75, there was a devise of the rest of the estate to B. and C., to be equally divided between them, and delivered to them at the age of twenty-one; but should they die, leaving no lawful issue, devise over to D. and others. The court of appeals at law, in May, 1821, held, that C., having arrived at the age of twenty-one, and having issue, took a fee, and that B. having died under age, and without issue, C. became entitled to the entire estate, and his children took by limitation, and not by purchase. The court of appeals in equity, in May, 1822, gave a different opinion. They admitted that C., the survivor, and his issue, took a cross remainder by implication. That the general intent of the will was to be satisfied; and if the secondary intent interfered with it, the former was to prevail. That as the testator intended that the estate should go eventually to the issue of B. and C., an absolute estate in fee to B. and C. would be inconsistent with that general intent; and B. and C. therefore took only estates for life, with a contingent remainder in the issue as purchasers.

a

Den v. Cox, De Treville v. These last de

⚫ Chadock v. Cowly, Cro. Jac. 695. Newton v. Griffith, 1 Harr. & Gill. 111. Bells v. Gillespie, 5 Randolph's Rep. 273. Broaddus v. Turner, 5 ibid. 308. Contra, Ranelagh v. Ranelagh, 2 Mylne & Keen, 441. 3 Dev. N. C. Rep. 394. Radford v. Radford, 1 Keen, 486. Ellis and Stevens v. Patterson, 1 Bailey's Eq. Rep. 40. 42. cisions seem to be sufficient to change the former rule, and that a limitation to the survivor, may be good by way of executory devise.

b Cro. Jac. 590.

• Porter v. Bradley, 3 Term Rep. 143.

Hughes v. Sayer, 1 P. Wms. 533. Nichols v. Skinner, Prec. in Ch. 528. • Roe v. Jeffrey, 7 Term Rep. 589.

the first taker should happen to die, and leave no child or children.a

The disposition in this country has been equally strong, and, in some instances, much more effectual than that in the English courts, to break in upon the old immemorial

construction on this subject, and to sustain the limi*279 tation *over as an executory devise. In Morgan v. Morgan, the limitation over was upon dying without children, then over to the brothers of the first taker; and it was held to mean children living at the death of the first taker. So, in Den v. Schenck, the words creating the remainder over were, if any of the children should happen to die without any issue alive, such share to go to the survivors; and it was held to be good as an executory devise. The case of Anderson v. Jackson, was discussed very elaborately, in the courts of New-York; and it was finally decided in the court of errors, that after the devise to the sons A. and B. in fee, the limitation, that if either should die without lawful issue, his share was to go to the survivor, was good as an executory devise; because there was no estate tail created by these words,

* Doe v. Webber, 1 Barnw. & Ald. 713. In Ranelagh v. Ranelagh, 2 Mylne & Keen, 441, it was declared, that if separate legacies were given to two or more persons, with a limitation over to the survivors or survivor, in case of the death of either, without legitimate issue, the presumption was that the testator had not in contemplation an indefinite failure of issue.

The term issue may be used either as a word of purchase or of limitation, but it is generally used by the testator as synonymous with child or children. b 5 Day, 517.

c3 Halsted's Rep. 29.

d It was declared, in Cutter v. Doughty, 23 Wendell's Rep. 513, to be settled, that a devise to the survivor or survivors of another, after his death, without lawful issue, was not void as a limitation upon an indefinite failure of issue. It is good by way of executory devise. The word survivor qualifies the technical or primary meaning of the words dying without issue, and must be read dying, without issue living at the time of his death. See also to S. P. supra, p. 277, n. a.

e 16 Johns. Rep. 382.