Dallam v. Dallam's Lessee

Buchanan, Ch. J. at the present term, delivered the opim» on of the court. On the 11th of August 1755, Frances Middleware. made her will, the second clause of which is in these words: — “I give and devise unto the aforesaid Richard Dal lam and Josias Dallam, and to their heirs and assigns forever, as tenants in common, equally to ho divided between them, all that tract of land called Palmer’s Forrest, lying on the west side-of Swan creek; but if either of them dies before the age of twenty-one years, and without issue, then I will that one equal half part of the said land he held and enjoyed by Gould234 smith Garretson, (son of George and Martha Garretson,) his heirs and assigns, forever, to whom I give and devise the same accordingly. And in case the said Richard Dallam, mid Josias Dallam should both die before the age of twenty-one years as aforesaid, and without issue, then I give and devise the whole of Palmer’s Forrest to the aforesaid Gouldsmith Garretson, his heirs and assigns forever.” Richard Dallam and Josias Dallam entered upon and took possession of the land so devised to them, and caused it to be divided. Richard married and had two sons, John and William, now living, and died in the year 1820, aged 74 years, after having conveyed his part to his son John. Josias sold all his part, except about 125 acres, the premises in question, of which he died seized in the year 1820, at the age of 72 years, leaving a number of children, now living, of whom Francis J. Dallam, the tenant in possession is one, and William M. Dallam, the lessor of the plaintiff below is another, claiming as eldest son and heir in tail. And the question raised is, what estates did Richard and -Josias Dallam respectively take under that devise — estates in fee simple, or estates tail? It would be an unprofitable, and almost endless task, to go through an examination of the multitude of authorities in relation to this 'subject; a few only of which will therefore be noticed in the exposition that is proposed to be made of the principles governing the decision of this case. The case of Soulle vs. Gerrard, Cro. Eliz. 525, was much relied upon, in the ingenious argument of the counsel for the appellee, to show that Richard and Josias Dallam took estates tail only. The devise in that case was to Richard, one of the devisor’s sons, and his heirs forever;- and if he died within the age of twenty-one years, or without issue, that then the land should be equally divided amongst his three other sons; and it was held that Richard took only an estate tail; the whole of the judges being of opinion, that the devise over, so far as it was on his dying within the age of twenty-one years, being after a fee, was void, on the ground that a fee could not be limited by will after a fee. They therefore rejected altogether the contingency of his dying within age, and construed the other contingency of his dying without issue, as being ex — 235 — planatory of the word heirs, and restricting it to mean heirs of bis body; and thus virtually reduced it to the case of a limitation over on the single contingency of his dying without issue. By the ancient common law no remainder could be limited over after an estate in fee simple, nor a freehold be created to commence in fuhiro. But that strictness has been greatly relaxed in favour of dispositions of estates by will, and the settled rule now is, as it has been for ages, that by way of executory devise, a fee simple, or other less estate, may be limited after a fee simple; and the familiar example put in the bocks, is of a devise to,one and his heirs, and if he dies before the age of twenty-one, then over to another and his heirs. In Soulle and Gerrard the court went expressly upon the assumption, that that could not be; no distinction was attempted to be taken between a definite and indefinite failure of issue, nor was there the slightest intimation, that the first contingency, of the devisee Richard dying within the ago of twenty-one, could not have the effect to restrict the subsequent words “without issue,” to mean a failure of issue at the time of his death. But the judges, considering the contingency of his dying within twenty-one, as standing in the way of the subsequent words, “without issue,” and (if suffered to remain,) preventing their explaining the word “heirs” to mean heirs of his body, and thus to constitute the devise to Richard an estate in fee simple, they rejected the contingency of his dying within twenty-one, and construed the will as if it did not contain that provision, but only a limitation over on the simple contingency of his dying without issue. .That case, therefore, cannot at this day be relied upon as authority, to show either that there cannot be a good limitation by will after a fee simple by way of executory devise, or that, in the case of a limitation over, on the double contingency of a dying before the age of twenty-one, and also without issue, the contingency “of dying before the age of twenty-one” does not restrict the words “without issue” to mean a definite failure of issue; that is, a failure of issue at the death of the first devisee. On the contrary, it would rather seem, that but for the principle assumed and acted upon by the/ judges, that there could not be a limitation by will after a fee simple, they would have considered the first contingency of — 236 — “dying within the ago of twenty-one years,” as limiting the second “without issue” to mean a failure ofissueatthe death of the first devisee; otherwise they would not have felt themselves constrained to reject the first contingency, in order to let in the words “without issue,” to explain the sense in which the words “and his heirs forever” were used in the devise to Richard/ as it was only on the ground that the contingency of his dying within the age of twenty-one would have the effect to restrain the other contingency “of his dying without issue,” to a failure of issue at the time of his death, that he could have been held to take an estate in fee simple. ' An executory devise, unlike a remainder, needs no particular estate to support it; but no limitation can be good as an executory devise, unless it be on a contingency, that must- happen, if at all, within a life or lives in being, and twenty-one and a fraction of a year afterwards. And if it be limited in an event, which may not happen within the prescribed limits, as upon an indefinite failure of issue, it is void; for the possibility at its creation, that the event, on which it is made to depend, may not take place within the tune allowed,, vitiates it from the beginning, no matter how the fact turns out afterwards. Nor can any limitation be construed to operate as an executory devise, where consistently with the rules of law, and the intention of the testator, (which when not contrary to law must always prevail,) it may take effect as a remainder. It is established by the authority of more than fifty adjudged cases, that wherever there is a devise of real estate to one and his heirs, with a limitation over if he should die without issue; the words “without issue,” mean an indefinite ^failure of issue, that is, not a failure of issue at the time of the death of the devisee, but a failure whenever they shall become extinct, without reference to any particular time or event; if there be nothing in the will showing a different intention on the part of the testator, and restricting the failure to the time of the devisee’s death, or to some other time or event. In every such case, the contingency is too remote to support an executory demise, as the event on which it is made to depend, (the failure of issue,) may. not happen within the prescribed limits, a life or lives in being, and 21 years and a frac — 237 — tion of the year afterwards, allowing for the time of gestation. But it is construed to be an estate tail in the first devisee, and the limitation over operates as a contingent remainder, expectant upon the precedent particular estate tail. But. wherever there are expressions in the will restricting the “dying without issue” to a failure of issue, at the time of the death of the first devisee, or to some other time or event which must occur, if at all, within the time allowed for the happening of a contingency, in which an executory devise may be limited, there the first devisee takes an estate in fee simple, and the limitation over is void as a remainder, but good by way of executory devise — as if the words be “without issue living at,the time of his death,” or “without issue living ata time specified.” These are rules, for the construction of wills, so well settled, and so long acted upon, as to have become maxims of the law that are not. now to bo questioned. Whether the intention of the testator is always arrived at and gratified by these rules of construction, is not now a question open for examination. In construing a will, the particular words of which have received a settled technical construction, that has become a rule of property, that construction ought to bo adhered to and preserved as a fixed and established land mark,, With these principles kept in view, it remains to he examined, by which of those rules the devise before us is to be governed; whether the words “without issue” mean an indefinite failure of issue, or whether they are restricted to mean a failure of issue at the time of the death of Richard and Josias Dallum respectively. In Pells vs. Brown, Cro. Jac. 590, the devise was of lands by William Brown, to his son Thomas, and his heirs forever, and if Thomas died without issue, leaving William his brother, that then William shuuld have those lands to him, and his heirs and assigns forever. And it was adjudged that Thomas took an estate in fee simple, and that the limitation over to William was good as an executory devise; on the ground that the words “without issue,” as there used, did not mean an indefinite failure of issue, but were explained and restiiclod by the words “living William,” to mean a dying by Thomas without i«sne living, in the lifetime of William: and were not — 238 — used to qualify the word “heirs” in the devise to Thomas, and to show that it was the intention of the testator, to restrain them to heirs of his body, but only to designate an event, on the happening of which the estate in fee simple before devised to him was to determine or be defeated, and the contingent limitation to William to take effect — which it was held could only be by way of executory devise, and not as a remainder, which could not be limited after a fee simple. That is a leading case upon the subject, and is put as an example of a good executory devise, in 2 Fearne Cont. Rem. 17, 52. 4 Cruise on Real Property, (Am. Ed.) 441. Purefoy vs. Rogers, 3 Saund. 388, (note 9.) 3 Com. Dig. 431, and referred to in Porter vs. Bradly, 3 T. R. 146; and Roe vs. Jeffery, 7 T R. 592 — as the “foundation of this branch of the law;” and that case cannot in principle be distinguished from this. There, the contingency on which the limitation over was to take effect, to wit, a dying without issue in the lifetime of another, was to happen within a life in being; here,within 21 years. And. there is no want of adjudged cases, down to the present time, to show in what manner devises such as this have been uniformly construed. In Brownsward vs. Edwards, 2 Ves. 243, where the devise was to one in tail, but if he died before 21, and without issue, then over to another, Lord Hardwicke held, that the limitation over was good by way of remainder, because an estate tail was capable of supporting a remainder; but that, if the first devise had been to the devisee and his heirs, that construction could not have been made; for where there was such a contingent limitation, the court had not changed “heirs” unto “heirs of the body.” In Walsh vs. Patterson, 3 Atk. 193, the devise was by a father to his son, and his heirs and assigns forever, but in case he died before he attained the age of 21, or without issue, then to the testator’s wife, and her heirs. Lord Hardwicke said, “he thought it a very plain case; and that if the testator had gone no farther than the first clause, he would have given the son an absolute fee, but then followed the executory part;” but he held it to be a vested estate in fee in the son, and as he arrived at the age of 21, though he died without issue, yet that it did not go over to the mother, but descended to his heirs at — 239 — law. Thus clearly showing, that the words “without issue’* were not; considered, in such cases, as explanatory of the sense in which the word “heirs” was used in the preceding clause, and as narrowing it down to mean heirs of the body; otherwise the son in that case must have been held to take an estate tail, with a contingent, remainder in fee to the mother; but as a mere contingency, restricted to the dying by the first devisee, under the age of 21, and without issue living at the time of his death; by the happening of which the preceding estate in fee was to be defeated, and the limitation over to take effect by way of ex-ecutory devise. And in Framlingham vs. Brand, 1 Wils. 140, reported also in 3 Atk. 390, where the devise was by a woman to her son Robert, his heirs and assigns forever, and if he should happen to die in his minority, or unmarried, or without issue, then over to her son Harry and his heirs, Lord Hardwicks said he was clearly of opinion, that it was a fee in Robert, with an executory devise, and agreeable to all the cases. Barker vs. Suretees, 2 Stra. 1175, is a similar case. In Hauer vs. Sheetz, 2 Binney, 532, the devise was to F, his heirs and assigns forever, (subject to a pecuniary charge,) and if he should die under the age of 21, or without issue, then over to P; and it was held, that F took a fee with an executory devise to P, to take effect upon F’s dying under age, and without issue. It will be seen that in all these cases the disjunctive or (or without issue,) is used, and that the only doubt entertained in either of them was, whether that disjunctive could be read (and;) but it was adjudged in each case, that it should, in order to effectuate the intention of the testator; which is, according to the known rule of construction in such cases, established by a course of decisions for centuries down to the present time. Small vs. Denny, 1 Wils. 270. Machin & Vessey vs. Reynolds, 7 Serg. & Lowb. 373; and Barnitz vs. Casey, 7 Cranch, 456, are free from any difficulty attending the word (or,) the limitation over in each case being on the contingency of a dying-under the age of 21, and without issue, dropping the word (or) and using the conjunctive (and,) which is precisely this case. In the whole of these cases, the. words “without issue,” were considered as not having the effect to reduce the preceding estate in fee simple to an estate tail, but the dying without — 240 — issue was held to be a mere contingency, on the happening of which, it was the intention of the testator that the fee simple before created should determine. The limitation over, could not, therefore, take effect as a remainder, which cannot be limited after a fee. And it could not have been construed to be good, by way of executory devise, except on the ground, that the words “without issue” did not mean an indefinite failure of issue, which would have been too remote to sustain an executory devise, as the contingency in such case might not happen within the prescribed limits; but that, connected with the preceding words dying within age, or before 21, &c. they were restricted to mean a failure of issue at the time of the death of the first devisee; on the principle of the case of Pells vs. Brown, and of Wilkins vs. Kemeys, 9 East, 366, where the devise was to B, and-her heirs, but if she died before A, or without heirs of her body, then to C; and it was held that the devise over to C, could only take effect, if B died before A and without issue. And it does seem that a limitation over, on a dying within age, or under 21, and without issue, must necessarily mean a dying without issue living at the time of the death of the devisee, and being a contingency that must happen, if at all, within the time allowed, it is a good contingency in law to support an executory devise. The plain meaning of such a clause is, that if the party dies before 21, eo inslanli the fee before given to him shall determine, and the estate pass over to another, provided there be no issue at the time of his death — the dying before 21 and also childless, making together the event on which one estate is to cease, and the other begin — and both must occur, to give life and effect to the limitation over; so that if the first devisee either attains the age of 21, or dying before 21 leaves issue, the fee, before defeasible, thereby becomes absolute, and the limitation over defeated. And it is not like the case of a limitation over on a dying “without issue” general!}', which, however a plain man might understand it, is now, when applied to real estate, technically construed to mean an indefinite failure of issue, though the same rule docs not extend to dispositions of personal property. Upon the whole, we think, both on authority' and principle, that the words “without issue” in this case, cannot be so con — 241 — strued as to tarn the fee simple before devised into an estate tail, without violating the clear intention of the testatrix; and that Richard Dallam and Josias Dallam each took an estate in fee in the premiaos respectively devised to them, defeasible by the event of his dying before he attained the age of 21,and without issue, but which became absolute on his arrival at the age oí 21. And being a fee in its creation, the limitation over was void as a remainder, though it would have been good by way of executory devise, if the contingency had happened on which it was made to depend; but that not having happened, the executory limitation over can never take effect. William M. Dallam then, has no title to the land in question as heir in tail; but his father Josias, being seized of an absolute estate in fee simple, it would, under the act of 1786, ch. 45, the act to direct descents, have descended to his heirs in fee, that is, to all his children equally, if he had died intestate; and William M. Dallam would have been entitled to an equal share with the other children in fee simple, and no more. Dorsey, J. Although much time was consumed in the argument. of this case, it presented for decision but one question, on which, it is difficult to conceive, how a doubt could remain on the mind of the learned counsel who had made that full and elaborale examination of the authorities on the subject, so conspicuously displayed before this court. The material facts in the case arc simply these — Frances Middlemore, of Baltimore, county, in 1755, made her last will and testament, in which are the following clauses: “Imprimis. I give and devise unto Josias Dallam, (son of William and Elizabeth Dallam,} and to the heirs of his body, all those tracts of land called Fanny’s Inheritance and the Union, lying on the north side of Si van creek, near the Cranberry, and in default or want oí such issue, to his brother Bichará Dallam, and to the heirs of his body; and in default of such issue to George Gouldsmith Presbury, (son of George Presbury,) his heirs and assigns forever. 2dly. I give and devise unto the aforesaid Bichard Dallam and Josias Dallam., and their heirs and assigns forever, as tenants in common, equally to be divided between them, all that tract of land called Palmer’s Forrest, lying on the west side of Swan creek, hut if either of them dies before — 242 — the age of twenty-one years, and without issue, then I will that one equal half part of said land be held and enjoyed by Gouldsmith Garrettson, (son of George and Martha Garrettson,) his heirs and assigns, forever; to whom I give and devise the same accordingly. And in case the said Richard Dallam and Josias Dallam should both die before the age of twenty-one years, and without issue, then I give and devise the whole of. Palmer's Forrest to the aforesaid Gouldsmith Garrettson, his heirs and assigns, forever. 3dly. I give and devise unto the aforesaid Gouldsmith Garrettson, and to his heirs and assigns forever, all that tract of land called The Grove, lying near the head of Musquito creek. 4thly. I give and devise unto Susanna Hall, daughter of John and Susanna Hall, and to her heirs and assigns forever, all that tract of land called' Invention, lying on the west side of Spesurtree creek. 5thly. I give and devise to Henrietta Holland, daughter of Francis and Susannai, Holland, and to her heirs and assigns forever, all that tract of land called Middlemore's Angle, lying on the branches of Swan creek. 17thly. I devise the residue of my real estate unto the aforesaid Richard. Dallam and Josias Dallam, their heirs and assigns, as tenants in common, equally to be divided between them.” These are the only devises of real property contained in the will. Richard and Josias Dallam both arrived at the age of twenty-one years, divided Palmer's Forrest between them; and Josias Dallam died in 1820, seized under the devise aforesaid of part of Palmer's Forrest, and leaving eleven children, of whom the appellee’s lessor is the oldest son, and the appellant another of his sons and one of his executors, who were directed by his will to sell the premises in question. Did Josias Dallam, by the second clause in Frances Middlemore's will, take in a moiety of Palmer's Fondest an estate in fee tail? is the only point to be considered. If yea, then is the appellee entitled to recover, and not otherwise. No lawyer can read this will and hesitate in' admitting that it was drawn with great perspicuity and professional skill, and that its writer well understood the established and legal import of .the terms and expressions which it contains. In arriving at its true exposition, the court must look to the intention of the — 243 — testatrix, which they are bound to eiiectuate, if not inconsistent •with the rules of law. Whence is this intention to be collected? Not from mere conjecture, but from the clauses and expressions contained in the will itself. These are to have their plain and popular interpretation. And if formal or technical terms are used, they are to be construed according to their legal import, if such construction contravene not the intention of the testatrix. The devisor having used the words “heirs,” “heirs of the body,” and “issue,” we are bound to say she understood the meaning of each expression, nor can we substitute the one for the other, but to gratify her manifest intention; or, as is emphatically said by Justice Buller in Doe vs. Perryn, 2 T. R. 49, “unless by unavoidable and necessary construction to make sense of the will.” The second clause of the will, prior to the limitation over, gives to Richard and Josias Dallam an estate in fee simple as absolute as language could make it; being to them, “their heirs and assigns forever.” The devise over was intended to take effect upon the happening of two contingencies, and not otherwise; to provide for the annihilation of the estate created in the first devisees, not to change its nature. This interpretation gives to every' word of the will its natural as well as legal signification and operation, and accords with the intention of the testatrix, manifestly deducible from other parts of her testament. By the first clause she devises to Josias Dallam, and “to the heirs of his body,” with a limitation over, in default of issue, to Richard Dallam and to “the heirs of his body,” remainder to George Gouldsmith Presbury his heirs and assigns forever. Thus showing, that when an estate tail was designed to bo created, “heirs of the body” were inserted; when a fee simple, “heirs and assigns for ever.” What conceivable reason then can he assigned, if an estate tail only were contemplated in the second clause, that the appropriate phraseology, used in the first (the devisee’s too in both instances being the same persons,) should be wholly abandoned, and a substitute introduced, which conveyed an entirely different estate from that intended to be given. Again, in the 3d, 4th, 5th, and 17th sec-, lions of the will, where the tcsiatrix evidently designed to pass — 244 — a fee simple estate, she uses identically the same formal words, “heirs and assigns forever,” that appear in the second section in the devise to Josias and Richard Dallam. Why then should their import, in the latter case, be narrowed down to an estate tail? In obedience,' say the counsel for the appellee, to two universal and inflexible rules of law — First, “that where-ever a devise is made to one, and his heirs, or heirs and assigns, with a limitation over after failure of issue of the first devisee, such limitation over reduces the fee simple, originally given, to an estate tail.” The second, “that no limitation over shall operate as an executory devise, if it can be made to take effect by way of remainder.” Before we admit the conclusions which have been drawn from these rules, by him to whoso aid they have been invoked, let us inquire whether there be such fules; and if so, how far the legitimate exposition thereof be applicable to the case now at bar. The existence of the first,; as an universal rule of law, cannot be admitted. It is special, and not universal; applicable only to eases where the limitation over is after an indefinite failure of issue. No case of authority has been referred to in the argument, and it is believed that none such can be found, where a devise in terms importing a fee, with.a limitation over after a definite failure of issue of the first devisee, has been held to invest him with an estate tail only. Upon what principle is it, that after a devise in fee a limitation over, after a general failure of issue of the first devisee, reduces the estate given to an estate tail? It is said in the books, that by the use of the word issue, and the limitation over, the testator explains what is meant by the word “heirs,” showing that he intended heirs of the body only. But how this explanation is made manifest, I have no where seen distinctly elucidated in the authorities. Yet, upon a moment’s reflection, it is most obvious to the mind of every lawyer. By the limitatation over, after an entire failure of issue, the testator most unequivocally declares, that no heir of the devisee shall inherit, who is not his issue. Thus conclusively demonstrating, that, by the word “heirs,” in the commencement of the devise, ho meant heirs of the body. But does the same reason apply to a devise in fee, with a limitation over after a definite failure of issue? Can, in such a. case, no person inherit as heir of the devi — 245 — see, who is not also an heir of his body? Most assuredly lie may. Should the issue be not extinct, at the period fixed by the terms of the devise, then the limitation over can never take effect. And if, subsequently to that period, a failure of issue should occur, the heirs collateral of the devisee may inherit the estate devised. The principle then which converts a devise in fee with a limitation over after an indefinite failure of issue, into an estate tail, has no application to a devise in fee with a Iimiiation over after a definite failure of issue. In the last mentioned class of cases a fee simple always passes to the devisee, liable to be defeated hy the happening of the contingency upon which the limitation over is made to depend, provided the contingency be such that, by the rules of law, a fee upon a fee, by way of executory devise, may be limited upon it. But if the contingency be too remote, then is the limitation over null and void, aud the estate becomes an absolute fee simple in its first inception. It is true that a dictum is met with in Soulle vs. Gerrard, Cro. Eliz. 525, which at first view might be considered in the teeth of this doctrine; and on this case the counsel of the appellee appeared to rest with the most confident reliance. The only question which should there have been decided, was simply whether “or” should be construed “and,” to eifectuate the testator’s intention; and the facts which presented that point for adjudication were the following: The testator, having four sons, devised the land in dispute to one of them, and his heirs forever; and if he die within the age of one and twenty years, or without issue, that then the land should be equally divided amongst his three other sons. The first devisee had issue, and died under twenty-one years. The parties litigant were the issue of the son of the devisee, and the three surviving sons of the testator. Two points were argued by the counsel — first, that the disjunctive “or” should be taken for the copulative “'and;” the second, that the remainder, (as it was improperly denominated,) being limited to depend upon a fee, was therefore void. Elnderson, Chief Justice, in delivering his opinion, (which was adopted by the rest of the court,) states, “that this part of the limitation, if lie die within age,” is utterly void, for a remainder cannot depend upon a fee, and then it is all otic as if the limitation had been single, “if he die without is — 246 — sue;” so that the first devisee had an estate tail. The court there arrive at this notion, that the first devise is of but an estate tail, by error so manifest, that it is matter of surprise that such a decision should be seriously pressed upon a court of justice at the present day. Their whole opinion is bottomed upon a denial of what is now deemed one of the best established axioms of the law, “that by last will and testament a fee may be limited upon a fee.” To bolster up this unsound adjudication, it has been alleged, that it was approved of by Lord Holt in Hilliard vs. Jennings, 1 Ld. Ray. 505; and by Buller, Justice, in Wright vs. Kemp, 3 T. R. 474. The insinuation, that so distinguished a judge as Lord Holt had sanctioned an error so egregious, is of itself enough to excite our suspicion of inaccuracy in the reporter; but this suspicion is converted into-demonstration, when we look to the same case of Hilliard vs. Jennings, in 12 Mod. 276, and in Com. Rep. 94, where Lord Holt, so far from approving, denied the authority of Soulle and Gerrard. So far only, I presume, as related to the tóicium about the estate tail. The opinion of the court, however, in Soutte and Gerrard, if entitled to any weight, rather supports than impugns the distinction now assumed, as to the operation of limitations over after definite and indefinite failures of issue. Before they there felt themselves authorised to reduce the estate devised to a fee tail, they were first constrained to reject, as null and void, all that part of the limitation over, which made the estate dependent on a definite failure of issue. The sole question in Wright vs. Kemp was, whether “or” should be construed “and;” and after Lord Kenyon, in support of that construction, had cited a number of authorities, Buller, J. observed, that in addition to the cases mentioned by his Lordship, there is another to the same effect in Moor, 422, where the words are, “if he die without issue or before twenty-one, then over.” He adduced this authority as one where “or” was held to mean “and,” having no allusion to the question whether the estate devised were in tail or in fee; and that by this reference he had no such design as is imputed to him by the counsel of the appellee, is most evident on turning to the case as reported in Moor, which is in less than five lines, and simply states, that in a device to his “son, and if he — 247 — die without issue or before his age of twenty-one years, then remainder to another; the son had issue, but died under twenty-one years, adjudged that the issue took the land, and not the remainderman.” Notone word is here to be found about an estate tail; and Buller, J. did as every lawyer of modern times would do, views this as a ease in which nothing was determined save that “or” meant “and.” But the fact is, as was observed by Lord Hardwicke in Framlingham vs. Brand, 3 Atk. 390, “the doctrine oí executory devises was not well settled when Soulle vs. Gerrard was decided.” An indefinite failure of issue, is where the limitation over is to take effect whenever the issue becomes extinct. A definite failure of issue, is where the limitation over is only to take effect upon the issue’s becoming extinct within some specified period. Has the testatrix in the ease at bar tied up the failure of issue of the first devisee to any particular time, and is the time prescribed such as by the rules of law will permit a fee to be limited upon a fee? are the questions before us. And these questions have been so frequently decided in cases in tot idem verbis, or even stronger against the appellee, that it is only necessary to refer to them to silence forever all doubt on the subject. In Hanbury vs. Cocherill, 1 Roll. Abr. 834, the testator devised lands to his son B in fee, and other lands to his son C m fee, subject to a proviso, that if either of his sons should die before they should be married, or before they should attain the age of twenty-one years, and without issue of their bodies, then he gave all the lands, which he had given to such of his sons that should so die, &c. unto such of his sons as should the other survive. It was held that the sons took in fee, subject to a limitation to the survivor for life, in, case of either dying unmarried, or under twenty-one years of age, and without issue. In Barker vs. Suretees, 2 Stra, 1175, the devisor gave the premises in question to his grandson, his heirs and assigns; but in case he dies before he attains the age of twenty-one years, or marriage, and without issue, then over — Held, that the first devisee took the estate in fee, subject to the executory devise over on the contingencies mentioned. In Walsh vs. Peterson, 3 Atk. 193, the testator gave two thirds of his real estate to his son, to hold to him, his heirs — 248 — and assigns forever; but in case he shall happen to die before he attain the age of twenty-one years, or without issue, then to the testator’s wife, her heirs and assigns. Lord Hardwicke held it. to be a vested estate in fee in the son. In Framlingham vs. Brand, 3 Atk. 390, the testatrix devised her house to her son Robert, and his heirs and assigns forever; and in case he shall happen to die in his minority, and unmarried, or without issue, she gave it to her son Harry, and his heirs. Lord Hardioiche, in delivering his opinion, says, “the question is, if this was a devise of an estate tail in Robert, with remainder over to Harry, or if a fee with an executory devise to Harry on these contingencies, I, am clearly of opinion this is a fe'e with an executory devise, and agreeable to all the cases.” And he further determined, that Robert having arrived to the age of twenty-one and died, the house was answerable for his debts. So in Thrustout vs. Denny and others, 1 Wils. 270, the feme by will appoints the premises in question to her son, and his heirs forever; but in case her said son should die before his age of twenty-one years, and without issue, then she devised the land over in fee. The Court held this remainder over a good executory devise, assigning as their reason, “as it depended on a contingency to arise within the compass of a life then in being.” Between the words of the devise in this will, and of those in the will of Frances Middlemore, not the slightest shade of difference is discoverable. In Buckworth vs. Thirkell, 4 Cruise’s Dig. 451, tit. Devise, 38, ch. 17, s. 27, a devise to a granddaughter, her heirs and assigns forever; and if she die under twenty-one years, and without issue, then to a grandson, and his heirs — Held, by Lord Mansfield, a devise in fee in the first taker. In Gulliver vs. Wickett, 1 Wils. 105, the testator devised lands to his wife for life, and after her death to such child as she was then supposed to be en~ siefit with, and to the heirs of such child forever; provided that if such child, as shall happen to be born, shall die before the age of twenty-one years, leaving no issue of its body, then over. The court say, we are all of opinion “that the true construction of this will is, that there is a good devise to the wife for life, with remainder to the child, in contingency — 249 — in fee, with a devise over, which we hold a good executory devise, as it. is to commence within twenty-one years after a life in being.” In Burnitz Lessee vs. Casey, 7 Cranch, 456, the same question, (the words being identically. the same as those now under consideration,) was argued in the supreme court of the Uniled States by some of the most eminent counsel in the Union, and it; was decided that the first; devisee took an estate in fee, and that, the limitation over was good as an executory devise. Many similar adjudications, made in the different states, might be cited, but; it is deemed unnecessary to do so. In neither of tiie cases referred to is it explicitly stated by Lire court that the “dying without issue” meant issue living at the time of the death of the first devisee. Yet in all those eases such must necessarily have been their decision, or they could not have pronounced the limitations over good by way of executory devise. There is no other period, to which the failure of issue intended by the devisor can be confined. If it. be not thus restricted, then upon the death of the first devisee under age with issue, such issue might be successively continued for fifty generations or ten centuries, and then becoming extinct, both contingencies would have happened upon which the limitation over was to take effect. Thus creating such a perpetuity as the law abhors, and will never permit. As to the second inflexible rule of law, so earnestly pressed into the appellee’s service, it is difficult to conjecture what application can be made of it for his benefit. If the court should be ol opinion, that the intention of the testatrix is apparent, and sufficiently expressed on the face of the will, to vest in Josias Dallam an estate in fee, with a limitation over by way of executory devise, according to the rules prescribed by law for that purpose, then the maxim of law relied on, “that a limitation over shall never be construed an executory devise, if it can be made to operate by way of remainder,” can have no operation; as after a fee, nothing remains to bo given. It is the duty of the court in all eases, first to elicit the intention of the testator from the will itself, as to the extent of the interest intended to be conferred on each devisee. This being done, then to devises of tne character of that before us, this rule of law is to — 250 — be applied; and if the limitations over can, consistently with the testator’s intent, take effect by way of remainder, they can never operate as executory devises. “But (in the language of Fearne 205,) this rule or principle, or maxim of construction, that a limitation shall never operate as an executory devise, where it may take^effect as a remainder, may be overruled, where the intent of the testator, or author of the trust or limitation, plainly appears [to contradict the legal construction of the limitation; for the intent of the testator shall always prevail, if not contrary to law; which means, if the limitation be such as the law allows; but docs not mean that the words shall be taken in such sense as the law imposes upon them.” It has been urged upon the court that the opinion of Chancellor Kent, in Roosevelt and others vs. Thurman, 1 Johns. Cha. Rep. 220, is in point in favour of the appellee. If this were so, I should ponder well before I disregarded so high authority. But Chancellor Rent has made no such decision as has been imputed to him; the counsel, it is presumed, has been led into this error, in part, by a palpable mistake committed by the reporter, ia giving the marginal contents of the decree; in which he states “it was held, by the words “dying without issue,” the devisee took an estate tail by the English law, or an estate in fee under our statute;” whereas the decision of the Chancellor was, that he took either “an estate in fee, or an estate in tail, under the English law,” which estate tail, by the statute of New York, is made an estate in fee. He gives no express opinion upon the point now in controversy, as it did not arise in that case; but as far as his views can be collected from what he did say, they are in perfect harmony with the adjudications referred to in support of the appellant’s pretensions. Too much time has already been consumed in reviewing authorities in which there is scarcely to be found a shade of discrepancy. The true construction of the second clause of Frances Middlemore’s will, (as far as relates to this controversy,) is, that Josias Eallam took an estate in fee in a moiety of Palmer’s Forest, subject to an executory devise over, to take effect in the event of his dying under the. age of twenty-one years, and without issue living at the time of his death. I think, therefore, that the judgment of the county court should be reyejsed, with costs. judgment reversed..