their lives, so to be continued from issue to issue for life: it was Bequests of held, that A. B. C. &c. took an estate tail in the real estate, and chattels, &c. an absolute interest in the personalty (j). In words importing an es It will appear from the cases cited below (k), that attempts tate tail by have been made to raise a distinction, in the above construction, implication. in cases where the bequests would (if the subject were real estate of inheritance) give an express estate tail, and where they would only be construed to create an estate tail by implication; but the distinction is now exploded (7); and the cases cited abundantly prove the proposition, that where personal estate is bequeathed to A. generally, to A. for life, or to A. his executors, &c. (m), and if he die without heirs of his body (n), or without issue (0), the legatee will take an absolute interest, and the limitations over will be void. But in bequests made since the year 1837, the 29th section of the first of 1 Vict. c. 26, has made a very material alteration in the rule of construction above discussed. By that section it is enacted, that in any devise or bequest of real or personal estate, the words "die without issue," or "die without leaving issue," or "have no issue," or any other words which may import either a want or failure of issue of any person in his lifetime, or at the time of his death, or an indefinite failure of his issue, shall be construed to mean a want or failure of issue in the lifetime, or at the time of the death of such person, and not an indefinite failure of his issue, unless a contrary intention shall appear by the will, by reason of such person having a prior estate tail, or of a preceding gift, being, without any implication arising from such words, a limitation of an estate tail, in such person, or issue, (j) Mortimer v. West, 2 Sim. 274. (k) Atkinson v. Hutchinson, 3 P. Wms. 258; Daw v. Lord Chatham, Fearne, 464, ed. 10; 6 Bro. P. C. 450, reported also, 1 Mad. as Tothill V. Pitt, 488; Doe v. Lyde, 1 T. R. 596. (1) Per Lord Loughborough, Chandless v. Price, 3 Ves. 102. (m) Bigg v. Bensley, 1 Bro. C. C. 187. (n) Boden v. Watson, Amb. 398, 478; and see Stafford v. Buckley, 2 Ves. sen. 170. (0) Dingly v. Dingly, 2 Freem. 41; Burford v. Lee, Ib. 210; Anon. Ib. 287; Green v. Rod, Fitz. 68; Love v. Wyndham, 1 Levinz, 290; Bequests of chattels, &c. porting an estate tail by implication. Bequests of chattels, &c. to first legatee for life, and to his issue as purchasers. or otherwise: Provided that the act shall not extend to cases where such words as aforesaid import, if no issue described in a preceding gift shall be born; or if there shall be no issue who shall live to attain the age, or otherwise answer the description required for obtaining a vested estate, by a preceding gift to such issue. If, therefore, a legacy is given to A. (generally), and, if he dies without issue to B., A. will not, by this bequest, take an absolute interest as he would before the statute; but he will now take, subject to the bequest over, on the event of his dying without leaving issue living at his death, to B.; but if the bequest be to A. for life, and if he dies without issue, to B., there A. will not, as he would without the statute, take an absolute interest; he will not, in any event, take, under this latter bequest, more than a life estate; and if he should die leaving issue living at his death, then the ultimate interest would be undisposed of, for B. can only take in the event of A. dying without leaving issue. In the case of Re O'Bierne (p), Sir Edward Sugden, C., (I.) upon the effect of the above section of the act, observed, that in ascertaining whether the words "die without issue," in a will within the operation of the act, mean an indefinite failure of issue, an intention is not to be inferred from the use of those very words; therefore, if there is a gift to one for life, and if he die without issue, over, there the contrary intention does not appear, for in such a case, the supposed estate tail is an estate arising by implication only from the use of those very words. SECT. III. Bequests of chattels real, &c. which give an estate for life to the first legatee, and an absolute estate to his issue as purchasers. But where, after the life interest of the first taker, the legacy is given expressly to his issue as purchasers, and in default of them, to other persons: or where the bequest is to A. for life, and after his decease to his first and other sons successively, and their respective issue, the Court will give effect to the several limitations over; there being no necessity to resort to the rule of inference or implication before mentioned. The reason is obvious, that the death of the first taker must decide, whether he will have any issue or not, and, if he have any, then, such issue or sons, in the cases supposed, will be entitled to the legacy absolutely; (p) 1 J. & Lat. 352. none chattels, &c. To first legatee his issue as purchasers, for life, and to but if he leave none, then the other limitations depending upon Bequests of that event will take place according to their order; so that of them tend to a perpetuity: for however numerous they may be, yet if none of the prior limitations take effect, the ultimate one will be allowed to prevail. For the cases illustrating the preceding exception, in which the bequest is to the issue (q), or the first and other sons, &c. (r), of the first taker, the reader is referred to the cases cited in the notes below. In regard to the preceding observations, Lord Talbot, in Clare v. Clare (s), intimated a doubt, whether, when the bequest was express to the issue, the limitation over to take effect in default of such issue were not void for remoteness, as limited after a general failure of issue: but this opinion or doubt of Lord Talbot appears to have been overruled by the several cases last referred to, and to be wrong upon principle; for it is obvious that there can be no danger of a perpetuity, as apprehended by his Lordship, the limitation (as before observed), being to take effect at all events within the compass of a life in being, or a few months afterwards; the executory bequest presents that species of alternative limitation which is termed a contingency with a double aspect, the ultimate bequest to the last taker, being not expectant upon and to take effect after, but cotemporary with, and in substitution of the bequest to the issue of the first taker. If the legatee or first taker for life, to whose issue the bequest is expressly named, have a child born answering the description, at any period during the life of such first taker, the absolute interest in the bequest will immediately vest in such child, so as to defeat all contingent bequests over, unless the time of vesting is suspended by express provision, for a further period of twentyone years, which may be done as within the limit prescribed by the well known rule against perpetuities (t); any further observations upon which we shall postpone for the present, referring (q) Warman v. Seaman, Finch. 279; Sheffield v. Lord Orrery, 3 Atk. 282, 287; Marsh v. Marsh, 1 Bro. C. C. 293; Attorney General v. Bayley, 2 Bro. C. C. 553; Long v. Blackall, 3 Ves. 486. (r) Higgins v. Dowler, 1 P. Wms. 98; Stanley v. Leigh, 2 P. Wms. 686; Sabbarton v. Sabbarton, Forr. 245; Phipps v. Mulgrave, 3 Ves. 613. (8) Forr. 21. (t) Duke of Bridgewater v. Egerton, 2 Ves. sen. 121, more fully stated in 1 Bro. C. C. 280, in a note; Trafford v. Trafford, 3 Atk. 347; Foley v. Burnell, 1 Bro. C. C. 274; Vaughan v. Burslem, 3 Bro. C. C. 101; Duke of Newcastle v. Countess of Lincoln, 3 Ves. 387; 12 Ves. 218. Bequests of chattels, &c. Executory as distinguished from executed. the reader to a subsequent section (u), and in the meantime we proceed to the consideration of the subject next proposed. SECT. IV. Of bequests executory or inchoate, as distinguished from bequests choate and complete in themselves. The distinction between trusts executed and trusts executory in marriage articles and wills, is now well established; and it may be thus stated. Where the devise or trust is directly and wholly declared by the testator or settlor, so as to attach on the lands immediately, under the deed or will itself, it is a trust executed and complete, and must be construed strictly according to its legal import, and in analogy to corresponding limitations of legal estates; but where the devise, trust or agreement, is directory and incomplete; prescribing the intended limitation of some future conveyance or settlement directed to be made for effectuating it; there the trust is executory, and the Court of Chancery will not construe the devise or articles strictly, but will endeavour to discover the intention, and execute the trust according to that intention (v). This subject is so ably discussed by Mr. Fearne, in his admirable Treatise on Contingent Remainders, that a reference to his work is all that is requisite in this place, to show the application of the distinction, as it regards devises and settlements of estates of inheritance. The application of the doctrine, however, to limitations of chattels real, and other personal estate, does not seem to be so well settled: for although it is clear that the Court will lend its aid in modelling incomplete dispositions of that species of property as well as of real estate, in order to effectuate the intention of testators and settlors, yet it is not settled to what extent, and in what mode the Court will lend its aid to effectuate such dispositions, when made by reference to limitations of real estate of inheritance. Upon this subject a distinction has been taken between executory trusts in wills and in marriage articles (w); and it seems to have been incorrectly inferred from thence, that the Court will, in the one case, modify the strict legal import of the limitations in the articles, in order to effectuate the true intent of the settlors; but, in the other, will not interfere to carry into exe cution the apparent intention of the testator, though imperfectly Bequests of expressed. But this inference, it should seem, is at variance chattels, &c. with principal and authority. The only distinction existing Executory. between articles and wills is, not that the Court will not, when the intention can be discovered, equally lend its aid to effectuate that intention in the one case as well as the other, but in executing the articles the Court possesses a guide in the object of the settlement, namely, a provision for the issue of the marriage, which is wanting in the case of a will, and has no other guide to the discovery of the motives and object of the will, than what is to be collected from the words of the will itself. So that if the articles for a settlement of real estate were to limit an estate for life, with remainder to the heirs of the body of the settlor, the Court will decree a strict settlement, in conformity with the presumable intention; but if a will directs a similar limitation, the Court has not such ground for decreeing a strict settlement; and if there were no other words to show that the testator did not intend to use those words in the strict technical sense, it has no guide to ascertain that he means one quantity of interest rather than another, an estate for life rather than an estate in fee. But if it can be clearly ascertained from the will, that the testator did not mean to use the words in the strict technical sense, the Court will effectuate that intention, when ascertained, equally as if the limitation occurred in articles (x). Any other distinction between the two cases would, as Lord Eldon observes in the Countess of Lincoln v. The Duke of Newcastle (y), shake to the foundation, the rules of equity. The Court, therefore, it may be safely concluded, would in either case effectuate the intention, when once that intention can be clearly ascertained, and it can be accomplished consistently with the rules of law. These observations are equally applicable to limitations of personal estate. The first consideration, therefore, in cases of this sort, in a will, is to ascertain whether the bequest be executory or executed; whether, as it has been expressed, the testator has been his own conveyancer, undertaking to frame the limitations himself, or whether he intends a settlement to be made to effectuate the intention expressed. That being settled, the next question is, whether, notwithstanding the executory nature of the expressions, the intention (x) Per Sir William Grant, in Blackburn v. Stables, 2 Ves. & Bea. 369; see also per Lord Eldon, C., in Jervoise v. Duke of Northumberland, 1 Jac. & Wal. 574; see also per Sir |