Eachus's Appeal

The judgment of the Supreme Court was entered Per Curiam. The contention of the appellant is that he took an absolute estate under the will of Phineas Eachus. The ground. [108] of this contention is that the devise over to the brothers and sisters, in default of issue, does not restrict the estate given to him for life — the failure of issue being indefinite. But this is clearly a mistake. In gifts of personalty the phrase “die without issue” means die without issue living at the death of the per'son, the failure of whose issue is spoken of. It was so settled in England before the rule of construction in devises of land was changed by the statute of 1 "Viet. c. 26, s. 29. So it • has been uniformly held in this state. Such is the obvious signification of the words, and the other sense applied to them in construing devises of lands is confessedly a false construction, supposed to be necessary in order to benefit the issue. Still v. Spear, 3 Grant 306, and cases there cited. Of course either in devises of land or bequests of personalty the words may be controlled by the intention of the testator appearing in other parts of the will. It is true that wherever an estate-tail is given in personalty, it is absolute. But the primary question is, does the will create such an estate. Here the bequest to George was to go over on his death “ without lawful issue.” There was therefore a contingent limitation over. From the subsequent provision in the will, George was to have only the interest during his life, and the principal was to go to his children or their descendants living at the time of his death. The trust in the executor was therefore an active trust and the decree below was right. Decree affirmed and appeal dismissed at the costs of the appellant.