Gannon v. Albright

GANTT, J. This is an action of ejectment. Michael J. Gannon is the common source of title to the lot in suit. Upon the construction of the fourth clause of the will of Michael J. Gannon the rights of both sides to this controversy depend. The said clause is in these words: “Fourth. I give, devise and bequeath unto my two sons, Michael J. Gannon, Jr., and Joseph E. Gannon and unto their heirs and assigns forever, my farm lying and being in the county of St. Louis and State of Missouri which lies in the southern limits of Kirkwood, containing eighty acres, be the same more or less. It is my will that the same shall not be sold, at least not before the younger of the two, that is, Joseph E. Gannon, becomes of lawful age; and should either of them die without issue, then the survivor, his heirs and assigns to take, own and have the part and portion hereby bequeathed to the one so dying. - And in the event both should die without leaving any issue, then it is my will that my surviving heirs (with the exception of my son, John T. Gannon, who has had his share) shall have such property like and like.” Following the cardinal rule of construction it is our duty to ascertain, if possible, the intention of the — 248 — testator, and in so doing, mere technical rnles must yield to the obvious intent and purpose of the testator. Among the more,important canons of construction that have uniformly found favor in this court is the rule that when the words of a will at the outset clearly indicate a disposition by the testator to give the entire estate absolutely to the first donee or devisee, the estate will not be cut down to a less estate by subsequent or ambiguous words inferential in their intent. [Small v. Field, 102 Mo. 104.] There are some propositions in the construction,of this will that are or ought to be free of doubt. First, by the words, “I give, devise and bequeath to my two sons, Michael J. Gannon, Jr., and Joseph E. Gannon and unto their heirs and assigns forever, my farm,” etc. In the absence of qualifying words or subsequent limitations, a fee simple absolute was given to these two sons to the tract in question. This is so by .the most rigid technical rules of the common law and everywhere recognized by the English and American courts, and unembarrassed by technical rules and refinements, the ordinary man would unhesitatingly say that this was the plain meaning of the testator. On this proposition we are all agreed and indeed it is not seriously controverted by counsel. It is true that it is urged that these words, “and unto his heirs and assigns forever,” were not necessary, since oiir statute has dispensed with the use of the word “heirs” in conveying or devising an estate of inheritance, and it is argued that by the use of these unnecessary words the testator evinces a lack of confidence in the force of the words previously used and for that reason casts a doubt on their meaning. We are unable to concur in such a view. While it is true that our statute no longer requires the word “heirs” to pass a fee simple, the use of these words in no manner casts any doubt upon the intention of a grantor or devisor who uses them to grant or devise a fee simple. It is doubtful whether any competent or skillful conveyancer ever dispenses with them in con — 249 — veying a fee. Why should the use of words so long approved and so absolutely necessary at common law to effectuate such a purpose indicate a different purpose merely because the statute permits other and less words to have the same effect? Notwithstanding our statute has dispensed with the word “heirs” in devising a fee, this court has often commended their use. In Chew v. Keller, 100 Mo. l. c. 370, Judge Black, speaking for this court, held that the words “to them and their heirs forever” created a fee simple, saying: “Stronger language could not have been used to show and disclose a purpose and intent to confer upon Levin Baker and the other named persons an absolute and unconditional fee. The estate is given to ‘them and their heirs forever.’ This expression, though unnecessary to create a fee, is an appropriate one for that purpose; and that the word ‘heirs’ is here used in its ordinary legal sense as one of limitation only can not he doubted. ’ ’ “When in addition to the words, “unto them and their heirs forever,” the testator adds the significant words “and assigns,” it seems to us that instead of suggesting a doubt of his intention, no more suitable language could have been chosen by Michael Gannon to give his said sons an absolute fee simple and they emphasize his intention to give them his whole’ estate in said tract. [Wolfer v. Hemmer, 144 Ill. 554.] Neither does the use of the word “bequeath” in any manner weaken the force of the other words. “Bequeath” has been judicially construed by many of the ablest courts of this country to he synonymous with devise when used with reference to a gift of real estate. [Dow v. Dow, 36 Maine 211; Laing v. Barbour, 119 Mass. 523, and cases cited.] ■ In this court it has been so held. [Shumate v. Bailey, 110 Mo. 411; Yocum v. Siler, 160 Mo. 281.] In Greenwood v. Verdon, 1 Kay & J. 74, before Sir W. P. Wood, Vice Chancellor, the gift was to his son, John Verdón, and to his heirs and assigns forever, and — 250 — from and after the death of John without issue, then over to the surviving legatees. .The Vice Chancellor said: “There are several points about this will which do not admit of question. First, there is clearly an estate in fee simple limited to John Verdón, for the limitation is not merely to him and his heirs, but to his heirs <md■ assigns forever. The first limitation here being not only to the son ‘and his heirs’ which has often been restrained to a particular line of heirs, but the limitation is in the largest words, ‘to him, Ms heirs and assigns forever.’ I could not rely upon those words alone, but as they are used and I have to consider whether or not the estate so limited is cut down to an estate tail, I have to construe the effect of those words upon the subsequent gift on the death of John Verdón without issue.” After reviewing many English cases the Vice Chancellor summed up as follows: “The answer to this special case must be, that, under the will of John Verdón, John Verdón, the son, took an estate in fee simple, subject to be defeated by an executory devise in the event of his dying* without issue living at the death of the last surviving legatee, and there being issue living at that period, the estate in fee became absolute.” These views sufficiently indicate our opinion that the first sentence of the fourth clause of the will clearly and in unambiguous language devised a fee in this tract to the two sons. So that we must reject the argument that a fee simple was not created by these words. But it is argued with great earnestness by counsel that while these words standing alone might be sufficient to create a fee simple, yet when considered in connection with the subsequent words of the will they in fact create a fee tail. Let us consider then the words “unto them and their heirs and assigns forever,” with the subsequent clauses of this fourth item of the will. Did the testator intend to give his said two sons an absolute fee, or a fee defeasible upon the death of both without issue, or — 251 — did lie intend to create an estate tail? Two views are maintained by defendant. The first is that by the gift of an absolute fee in most appropriate language in the first instance and understanding and intending thereby that they had the absolute power of aliening the land thus devised to them, when he added the clause, “It is my will that the same shall not be sold, at least not before the younger of the two, Joseph E. Gannon, becomes of age,” he gave and intended to give an additional power to sell when Joseph reached his majority. Keeping in mind, as we do, that he had already granted an estate to them to which the power of sale attached as a necessary incident and that he understood that he had done so, and that it was, therefore, his intention to do so, the clause restraining the sale until Joseph arrived at age must be construed and read as if he had said, “I give my said sons full power to sell and convey said land when Joseph, the younger of the two, becomes of lawful age. ’ ’ To our minds it seems absolutely clear that he understood he had already granted them a fee simple with the power to sell, and he only desired the land should not be sold during the minority of Joseph, but after that it was his will that no restraint should exist on their power to sell and convey. It is to be observed in this connection that the restriction is not to the sale of a mere life estate, but to a sale of the land itself. No such restriction was necessary if he had given them a mere life estate. We understand it is settled law that where an estate is devised to one and his heirs and assigns forever and there is added either by express words or by implication an absolute power of alienation, the limitation over is void. In .our opinion the words of this restraining clause give an express power to sell, biit if not there is clearly given such power by implication. In 2 Redfield on Wills, p. 277, it is said: “It is a settle^ rule of American as well as English law, that when the first devisee has the absolute right to dispose — 252 — of tb.e property in Ms own limited discretion, and not a mere power of appointment among certain specified persons or classes, an estate over is void, as being inconsistent with the first gift.” Void as a remainder, because of the preceding fee, after which a remainder can not be limited. Void as an executory devise, because a valid executory devise can not subsist under an absolute power of disposition in the first taker. Thus Chancellor Kent says, vol. 4 (14 Ed.), 270: “If, therefore, there be an absolute power of disposition given by the will to the first taker, as if an estate be devised to A in fee, and if he dies possessed of the property without lawful issue, the remainder over, or remainder over the property which he, dying without heirs, should learne, or without selling or devising the same; in all such cases the remainder over is void as a remainder, because of the preceding fee; and it is void by way of executory devise, because the limitation is inconsistent with the absolute estate, or power of disposition expressly given or necessarily implied by the will.” [Jones v. Bacon, 68 Maine 34; McKenzie’s Appeal, 41 Conn. 607; Rona v. Meier, 47 Iowa 607; Kelley v. Meins, 135 Mass. 231, and cases cited; Howard v. Carusi, 109 U. S. 725; 2 Wash. Real Prop. (6 Ed), 667; Roth v. Rauschenbusch, 173 Mo. 582; Wolfer v. Hemmer, 144 Ill. 554; Ball v. Hancock’s Admr., 82 Ky. 107; Combs v. Combs, 67 Md. 11; Hoxsey v. Hoxsey, 37 N. J. Eq. 21; Wead v. Gray, 78 Mo. 59; Van Horne v. Campbell, 100 N. Y. 287.] If we are right in this position plaintiffs can not recover. Let us next inquire whether an estate in fee tail was intended to be created in these two sons and the heirs of their body. And first, was there an estate tail created by express words? The contention is that the word “heirs” expressed or implied is just as essential to the creation of an estate tail as of an estate in fee simple, the difference being that in the creation of a fee — 253 — tail a particular class or line of lieirs must be indicated, while in fee simple it is to tbe beirs general. As understood by all lawyers wbat is known as fee-tail estates bad tbeir origin in tbe statute 13 Ed. 1, cb. 1 (1285). Tbe name fee tail was borrowed from tbe feudists amongst whom it signified any mutilated or truncated inheritance from wbicb tbe beirs general were cut off, or as some say, because ownership of tbe subject was cut in two parts, one going to tbe donee and tbe heirs of his body and tbe other remaining as a reversion in tbe donor. [2 Black. Com., 112 n. (M.); 1 Thos. Coke Litt., 512-525.] Tbe familiar forms of creating such estates were “grant to A and tbe heirs of bis body; ” or “ grant to A and tbe beirs male of bis body; ’ ’ or “grant to A and tbe beirs male of bis body on Mary, bis now wife, to be begotten.” [2 Bl. Com., 113 and 114; 2 Minor’s lusts. 80.] In conveyances inter vivos tbe word “beirs” was necessary to create tbe estate, whereas, in wills, any words manifesting tbe testator’s intent were suffcient; thus, a grant by deed to a man and bis issue of bis body or to bis issue or to bis offspring, would pass only a life estate for want of proper words of inheritance, whereas in a will the same words would create an estate tail. [2 Bl. Com., 115 and 116.] In all the foregoing examples it is to be observed that the grant or devise is to the heirs of the body or to the issue or offspring, and these are cases wherein by express words a fee tail is created. Leaving out for the present any consideration of the creation of estates tail by implication, it is too obvious for serious discussion that there is no express gift by the testator to the beirs of tbe bodies of Michael J. Cannon Jr., and Joseph nor to tbeir issue. But the contention is that the word “heirs” is explained by the subsequent use of the word “issue” and they must be read together and so used they are synonymous with “heirs of his or their bodies,” and thus interpreting the words “unto them — 254 — and their heirs and assigns, ” as ‘ ‘ heirs of their bodies, ’ ’ an estate tail is created by express words. To ns this seems a most unnatural and forced construction' of the words “unto their heirs and assigns forever,” words which, we have already seen, have a settled meaning in the law and carry on their face a clear unambiguous intention of passing or creating a fee simple. In order to reach this conclusion the word ‘ ‘ assigns” in said clause must be stricken out of the will, and utterly disregarded, in the face of the settled rule that in construing any document, deed or will we must give effect to every word if it be possible without 'contravening the intention of the grantor or devisor. In addition to striking out the word “assigns” we must interpolate the word “heirs of his or their bodies,” and both to reach an intention in conflict with a plain and unambiguous intention to devise a fee simple to these two sons. To accomplish this, the first devise given to the natural objects of the testator’s bounty is made secondary to the ulterior and contingent devise over, found in a subsequent clause. We do not question that courts may transpose the words of a will if necessary to reach the true intention of the testator, but we insist that it must be presumed that the testator used the words he intended to use in their plain and ordinarily accepted legal sense, and we are not justified in interpolating other words and words of entirely different import. By resorting to such a course we import an ambiguity in the will and then substitute words which the testator did not use to remove that ambiguity. We submit there is no occasion for resorting to such refinements to avoid the force and effect of a plain devise of a fee simple to the two sons, and hence we say that there is nothing in the language of this will to justify the construction that an estate tail was limited by express words. Such a construction is only reached because the plain and ordinary signification of the words “to them and their heirs and assigns forever” puts them in a sup — 255 — posed conflict with the subsequent contingent disposition of the land in suit. But there is no such conflict— the obvious purpose was to give the two sons a fee simple in the land, defeasible if they should die without issue or children living at the death of the survivor of the two sons named, and if they should die leaving no issue living at the death of either or both, then an ex-ecutory devise over to the other heirs of the testator, a disposition entirely legal, if the testator had not already annexed to the fee devised to them the absolute power of disposal, but as that contingency never happened and never can happen, because both of said sons left children, the plaintiffs in this case, surviving them, the fee simple became absolute in the two sons and their grantees, the defendant and others, even if the power of sale was not superadded. But we are now brought to the further contention that a fee tail was devised by implication. We concede that under the statute de donis & fee tail may be created by implication, and in this case, if a fee tail is to be implied, it must be by construing the words “dying without issue” to mean an indefinite failure of issue, and that consequently the executory devise over is void for remoteness. Such was the case of Farrar v. Christy’s Admrs., 24 Mo. 453. That was the construction of a deed made in 1832 in which the grant was “to have and to hold the premises aforesaid with all the appurtenances thereto belonging to them and their heirs forever, upon condition that should either of the grantees herein named die without legal heirs of their body, the survivor shall inherit the whole of the property hereby conveyed; and should both die without leaving heirs as aforesaid, the property conveyed shall revert to the other legal heirs of the said William and Martha T.” It was conceded that these words, “should die without legal heirs of their body,” created a fee tail by implication under the statute de donis. At the date of that decision, moreover, section 6 of chapter 32, Eevised — 256 — Statutes 1845, had not been enacted, and the words “dying without issue” without further limitation at the time were held and construed by both the English and American courts to mean an indefinite failure of issue, and by implication to create a fee tail in the first taker or ancestor named. It is too plain for discussion that the majority of the court in Farrar v. Christy did not and could not have had section 6 of chapter 32, Revised Statutes 1845, under consideration in deciding that cause. Judge LeoNaed dissented. Harbison v. Swan, 58 Mo. 147, is also relied on as controlling the construction of this will. It is true that the will in that case was made in 1846 and the testator died in 1852, hut it is to he observed that this court in deciding, that case based its decision on Farrar v. Christy and the common law, and made no reference whatever to section 6 of chapter 32, Revised Statutes 1845, and it can not be said that said section was construed by the court. The will was construed with reference to the common law and the act of 1825 alone and the attention of the court was not called to the act of 1845 by counsel in the case. Moreover, there were no words in that will from which a power to sell could be implied, and in that respect it differs materially from the will under consideration. Conceding that prior to the act of 1845 the words “dying without issue” had been construed to mean an indefinite failure of issue at any time, and that many of the courts of England and of this country held these words created an estate tail by implication, what effect is to be given "these words since the act of 1845, section 6, chapter 32, went into effect? Obviously they were enacted to settle forever the construction to be placed upon the words “dying without heirs” or “without issue” in the future by our courts, and that they should not be construed in deeds and wills thereafter made to mean an indefinite failure of issue, and by implication to create estates tail, but henceforth they should be con — 257 — strued to mean “heirs or issue living at the death of the person named as ancestor.” Granting that if section 5 of the Act of 1845 stood alone those words would create an estate tail under the statute de donis and that the case of Farrar v. Christy, falling under the act of 1825, was properly decided, still it was competent for the Legislature to .pass the Act of 1845, and thereby modify the Act of 1825, and in effect command that whereas these words had been held by the courts prior to the Act of 1845 to create a fee tail, yet in the future those words should no longer be held to mean an indefinite failure of issue, but a failure of issue living at the death of the ancestor named, and thereafter their use should not have the effect of creating a fee tail by implication, but that an executory devise over after these words should be good. If this is not its meaning, what effect is to be ascribed to this statute? The section on its face shows it was the work of a trained lawyer, familiar with the conflicting views of the courts- of England and this country as to the meaning of the words, “dying without issue,” and evinces a determination to settle by positive statutory enactment the meaning of those words in all future deeds and wills in this State, and that thereafter when the question arose as to whether these words created a fee tail under the statute de donis, they should be construed to mean “issue living at the death of the ancestor” named, and no implication of a fee tail should arise to be at once destroyed by converting it into a life estate. If we do not so- construe this section 6 of chapter 32 of the Act of 1845, we in effect deny its authority, which we have no right or power to do. But we are told that fee tails never have existed in this State, having been abolished in 1816, when Missouri was a Territory, and, therefore, we are not to inquire whether these words create an estate in fee tail in Missouri since the Act of 1845, as there can be no estates tail in Missouri, but whether by the com — 258 — mon law it was a case wherein the devisees would have been seized in fee tail. Chancellor EeNT in his Commentaries (14 Ed.), vol. 4, p. 280, states that in Virginia by statute in 1819 and in Mississippi by Revised Code of 1824 and in North Carolina by statute in 1827, the rule in construction of devises as well as deeds, with contingent limitations depending upon the dying of a person without heirs or without heirs of the body or issues or issue of the body or children, was declared to be that “the limitation should take effect on such dying without heirs or issue living at the time of the death of the first taker or born within ten months thereafter” — and says it is further declared “that when a remainder shall be limited to take effect upon the death of any person without heirs or without issue the word ‘heirs’ or ‘issue’,shall be construed to mean heirs or issue living at .the death of the person named as ancestor. ’ ’ The great chancellor then' adds: “Theseprovisions sweep away, at once, the whole mass of English and American adjudications on the meaning, force, and effect of such limitations. The statute speaks so peremptorily as to the construction which it prescribes, that the courts, may not, perhaps, hereafter, feel themselves at liberty to disregard the direction, even though other parts of-the will should contain evidence of an intention not to fix the period of the devisee’s death for the contingency to happen, and that the testator had reference to the extinction of the posterity of the devisee, though that event might not happen until long after the death of the first taker. They might be led to regard any such other intent, collected from the whole will, if such a case should happen, not to be consistent with the positive rule of construction given by the statute to the words ‘heirs’ and ‘issue.’ Yet, when we consider the endless discussions, and painful learning, and still more painful collisions of opinion, which have .accomplished the history of this vexatious subject, it is impossible not to feel some relief, — 259 — and to look even with complacency, at the final settlement, in any way, of the litigious question by legislative enactment. ’ ’ Accordingly we have a statute in this State almost in totidem verbis with the statutes mentioned by Chancellor KeNT and it seems impossible to escape the logic of that distinguished jurist and chancellor that the courts are hound by this statutory construction, and accordingly when we find a devise, as in this case, of a fee simple to the first taker by apt, appropriate and long approved words, and thereafter a gift over on condition that he die without issue, “dying without issue” must be held to mean dying without issue living at his death, and, therefore, a definite failure of issue is provided, and the executory devise over is good, and the first taker takes a fee defeasible upon his dying without issue living at his death. If he die with such issue living, the estate in fee is absolute. If he die without issue living at his death, it goes over to the executory devisee to whom it is limited. It is true that estates tail have never existed in this State as they were abolished in 1816 by the Territorial act of that year, and the act of 1825 provided “that in cases where by the common law any person or persons who would then be or might hereafter become seized in fee tail, ’ ’ such person was to have a life estate only and the remainder pass in fee simple to the one next in line, and the act of 1845 practically continued that provision, but correctly referred estates tail to the statute de donis. The estates tail disposed of by those enactments were such as were defined by the statute de donis, but surely it will not be contended that legislative power was exhausted by' those acts. By the same legislative power it was entirely competent by subsequent enactment to declare what meaning should be given by the courts to certain words when thereafter used in wills and deeds, and this is what was done by section 6 of the act of 1845 passed contemporaneously — 260 — •with the enactment of section 5, for the first time commanding and directing that if the words “dying without heirs or heirs of the body ” or “ issue ’ ’ should he used those words should he construed' to mean ‘ ‘ dying without issue living at the time of the death of the person named as ancestor.” If the Legislature had the power to pass that statute, and this will not he questioned, the courts must read that statute into all instruments executed since its passage and containing those words. The only question left for the courts to determine is whether an instrument construed as the Legislature has directed that it shall he done, would create an estate tail under the statute de donis, if so read. By all the canons of construction sections 5 and 6 of the act of 1845 (now secs. 4592 and 4593, B. S. 1899) must he read together and when so read they direct that in cases “where by the common or statute law of England any person or persons would now or might hereafter become seized in fee tail such person shall only have a life estate with remainder in fee simple to the one next in line,” but the courts in determining whether an instrument would have creáted a fee tail at common law shall construe the words “dying without issue” when used in such instrument to mean “dying without issué living at the death of the person named as ancestor.” There is no conflict between the two sections and both can be made effective. The one abolishes estates tail and the other prescribes the meaning and construction of certain words for the government of our courts in determining whether an estate tail by implication is created by the instrument to be construed. In this connection it is well to note that other States have adopted provisions similar to ours in this respect, notably New York, New Jersey and Michigan. Jarman on Wills, vol. 1 (6 Ed.), p. 521, discussing the creation of estates tail in England by implication from the use of the words ‘ ‘ dying without issue, ’ ’ says: “No implication of an estate tail can arise from — 261 — words importing a failure of issue, in a will made or republished since the year 1837, unless an intention to use the phrase ás denoting an indefinite, failure of issue be very distinctly marked, as the statute, 1 Yict. c. 26, s. 29, provides that such words shall be held to mean a failure of issue in the lifetime or at the death of the person referred to, unless a contrary intention shall appear by the will. “Under this clause, coupled with the preceding section, which makes a devise confer an estate in fee without words of inheritance, it will generally happen, in cases in which, according to the old law, the prior de-visee would have been tenant in tail, by the effect of words devising over the property on the failure of his issue, that he will, under the new rule of construction, take an estate in fee simple, subject to an executory devise in the event of his dying without leaving issue at his death; and this, no doubt, .was the effect contemplated and designed by the Legislature.” Underhill on Wills, vol. 2, p. 870, after a full discussion of the same subject, says: “The doctrine of the creation of an estate tail by implication, above explained, has no application whatever where an estate is a fee simple, with a limitation over upon failure of issue, and it appears either from the will itself, or where the common law rule is modified by statute, that the failure of issue referred to is the failure of issue living at the death of the first taker. If the primary devisee has an estate in fee which is de-feasible upon a definite failure, i. e., of issue living at his death, it becomes indefeasible in him on his having issue who survive him, and he may provide for such issue by devising the fee to them.” Accordingly we hold that the statute of 1845 read into this will renders it impossible that the words “dying without issue” should have the effect of creating an estate tail and thereby cutting down the estates of — 262 — Michael J. Gannon, Jr., and Joseph to life estates only, remainder in fee to plaintiffs, their children. But independently of the statute there is much room for holding that even under the English and American decisions the will contains enough to show, an intention on the part of the testator that the words “dying without issue” referred to.issue living at the death of the survivor of said two sons. If the language of the will is susceptible of a construction that will make it apply to a definite failure of issue that construction should be adopted. The first limitation is to the survivor of these two sons, meaning clearly issue living at the death of the one of these two sons who should die first, and the next limitation is, “and in the event both should die without leaving any issue, then it is my will that my surviving heirs (with the exception of my son, John T. Gannon, who has had his share) shall have such property like and like.” Surviving when? Manifestly when both die without leaguing any issue. The words “leaving” and “surviving” refer in point of time to the’death of the survivor of the two sons. Then, too, John. T. Gannon who was living at the time the will was made is excluded from participation, showing in this additional manner the time in the mind of the testator. But it is also said that the word “remainder” in section 6, chapter 32, Revised Statutes 1845, is a technical word and does not include an executory devise. We think this is'too narrow a construction to place upon this word in the connection in which it is used. The preceding section 5 in that act refers alike to “conveyances or devises” and section 6 speaks of remainders limited by deed or “otherwiseThe word “remainder” is often used by textwriters to include an “execu-tory devise,” and this court has construed this word in this identical section 6 of the act of 1845 to have that significance. F.earne on Remainders, vol. 2, p. 159, says: “The — 263 — term remainder is sometimes used in a lax sense, to denote any kind of subsequent interest, or the limitation thereof. ’ ’ Chancellor KeNt in his Commentaries, vol. 4 (14 Ed.), p. 274, says: “A devise in fee with remainder over upon an indefinite failure of issue, is an estate tail; and in order to support the remainder over as an ex-ecutory devise, and to get rid of the limitation as an estate tail, the courts have frequently laid hold of slender circumstances in a will, to elude or escape the authority of adjudged cases.” Blaekstone uses the words as synonymous.- [2 Blaekstone, 173.] But in Sherman v. Sherman, 3 Barb. 385, the statute of New York, R. S. 1829, vol. 1, p. 724, sec. 22, which our Legislature evidently adopted when it enacted sec. 6, ch. 32, Eev. Stat. 1845, came before the court for construction and it was held that the word “remainder” included “executory devise” and the limitation over was held to be a good executory devise, and, moreover, that the statutory definition and not the common law meaning of the words “dying without heirs of his body or without issue” should control. That statute was afterwards adopted by Michigan, and in Mullreed v. Clark, 68 N. W. 138, came under revie"w by the Supreme Court, and it was held to govern an executory devise, and that decision is peculiarly applicable here because in that case the devise was to James Phillips, but if he should die without heirs then over, and-the court held that “James Phillips took a fee defeasible at his death without issue living at that- time. ” If he had issue then living, the fee became absolute. If none then living, it went over to the devisees named in the will. But the point is that the word remainder applied in full force to executory devises. But in Faust’s Admrx. v. Birner, 30 Mo. 417, in construing the will of John Birner this court held that the words ‘ dying without issue ’ ’ must, in this State since the Eevised Statutes of 1845 went into effect, be con — 264 — strued to mean dying without issue living at the death of the! ancestor named, and that act applied to executory, devises, saying, “this is a good executory devise to the brothers.” Again in Naylor v. Godman, 109 Mo. 550, this court through Judge Sheuwood quoted this identical section 6 of the act of 1845 and held it applied to an executory devise and it was so held in Yocum v. Siler, 160 Mo. 289. To sum up, then, we hold that the will of Michael Gannon does not create an estate tail by express words; that there is no express limitation therein to “the heirs of the body” or to the issue of the two sons, Michael and Joseph; that it does not create an estate tail by implication, because both by the language, of the will and especially by the positive command of the statute of 1845, the words “die without issue” mean dying without issue living at the death of said Michael and Joseph, and therefore mean a definite failure of issue, and hence no fee tail can be implied from their use, and, finally, that by the said fourth clause of the will the said two sons took a fee simple subject to be defeated upon their dying without issue living at their death, and as both died leaving children, the plaintiffs herein, the contingency upon which their fee simple was to be defeated never happened and never can happen, and their estate in fee became absolute, and their warranty deeds conveyed to defendants’ grantors the fee simple title. A different conclusion was reached in the construction of this same clause in the will of Michael J. Gannon by Division One of this court in Edward Gannon et al. v. Gustave Pauk et al. at the October term of this court (reported at page 265 of this volume), but upon reconsideration of the said clause in this case by the Court in Banc, we are not satisfied with the opinion of Division One construing said clause, and must decline to accept it as the proper construction of this will, and the judgment of the circuit court must be and is reversed. — 265 — Robinson, G. J., Burgess and Fox, JJ., concur; Brace, Marshall and Valliant, JJ., dissent, and express their views in an opinion by Valliant, J.