Opinion
03-02-1869
MOON & wife v. STONE'S ex'or & als.
Pettit, with whom were Nance & Williams, for the appellants. Hodges v. Middleton, ubi supra, Hill, sergeant, for the plaintiff, Royall, for the appellees. Wm. Green, on the same side.
1. S. by § 10 of his will says--I lend to my daughter S. 140 acres of land to be possessed by her during her natural life and the natural life or widowerhood of any husband she may have; and at her death and the death or after marriage of her husband, then to be equally divided among her children if she has any: aud if she has none then to be divided among all my children. He gives to S. a female slave and her future increase on the same terms and conditions. S. died without having married, and by her will gave her estate to C. HELD:
1. S. took an estate but for her life, with a contingent estate for the life or widowerhood of any husband she might have.
2. The word children as used in this devise is a word of purchase and not of limitation.
3. The word children in a bequest can generally have no other meaning than that of issue in the first degree, unless there be other words in the will to give it another meaning; except when the rule in Wild's case, 6 Coke 16, applies, which is founded on peculiar reasons.
In January 1807, Caleb Stone made his will, which was admitted to probate in the County court of Fluvanna county, in April 1810. He left a widow and six sons and five daughters. After providing for his widow and sons, he in the sixth clause of his will says,--" I lend to my daughter Nancy Perry one hundred and forty acres of land, it being the lower lot of my road tract of land as laid off and surveyed, to be possessed by her during her natural life, and the natural life or widowerhood of her present or future husband; and at her death and the death or after marriage of her husband, then to be equally divided among her children, if she has any, and if she has none, then to be divided among all my children."
The tenth clause of the will is--" I lend to my daughter Sally one hundred and forty acres of land, it being the lot laid off next above her sister Lucy's and below the lot devised to my son Thomas, to be possessed by her and any husband she may have upon the same terms and conditions as Nancy Perry's." And in the eleventh clause he says--I lend to my five daughters, each one slave to be possessed by them, and upon the same terms and conditions as they will hold their lands. And he specifies the slave which each daughter is to have; Phœ be being the name of the one given to Sally. By the 14th clause he gave the residue of his estate to his wife for her life or widowhood; and then to all his children.
It appears that Sally Stone received the land and the slave Phœ be, and that the living descendants of Phœ be numbered twenty-five in 1857, when Sally Stone died never having married, and being then as the bill states, about sixty-one years of age. By her will, which was duly admitted to probate in the County court of Fluvanna, after some bequests to other persons, she gave the remainder of her estate to her niece Christian Stone, who afterwards married Schuyler R. Moon.
After the death of Sally Stone, in a suit in the County court of Fluvanna, by the surviving children of Caleb Stone, and the personal representatives of such as were dead, for the purpose of having a sale of the said slaves, commissioners were appointed to sell them, and they were sold on a credit of six months; the executor of Sally Stone not claiming them as a part of her estate. There was also another suit in the same court by the same parties, for the sale of the land.
Whilst these suits were thus pending Schuyler R. Moon and Christian his wife, filed their bill in the Circuit court of Fluvanna county, against the executor of Sally Stone, deceased, and the other parties in said suits, in which they set out the wills of Caleb and Sally Stone. They insisted that by the will of Caleb Stone, Sally took an estate tail in the land and an absolute interest in the slave Phœ be; and that by her will the land and the slaves passed to the plaintiff Christian. They referred to the suits which had been brought for the sale of the slaves and the land; expressed themselves willing that the sale of the slaves should stand, and to take the purchase money in their stead. Asked that the parties might be restrained from proceeding in said suits; that the commissioners be restrained from paying over the purchase money of the slaves, until the further order of the court; and that the rights of the plaintiffs and the defendants in the said real and personal estate, might be ascertained and declared by the court; and for general relief.
The defendants demurred to the bill and answered, contesting the construction put upon the will of Caleb Stone by the plaintiffs; insisting that Sally Stone took but a life estate in the property; and that upon her death, unmarried and without children, the bequest over to the children of Caleb Stone was valid.
On the 16th of September 1859, the cause came on to be heard, when the court was of opinion that Sally Stone took but a life estate in the slaves, under the will of Caleb Stone; and that upon her death, unmarried and without children, they either passed over under the 14th clause of the will, to the testator's wife and children, or that both the land and slaves given to Sally Stone passed over to the testator's children by virtue of the sixth, tenth and eleventh clauses of the will; that the words of these clauses created neither an estate tail in the land nor a perpetuity in the slaves; and the limitation over was therefore good. And the court sustained the demurrer and dismissed the bill with costs. Whereupon the plaintiffs obtained an appeal to this court.
Pettit, with whom were Nance & Williams, for the appellants.
The question here is, what estate Sally, the daughter of Caleb Stone, acquired under his will in the land and slaves devised and bequeathed to her; and I shall first treat it as if in making the devise to her, the testator had used the same words employed in the clause making a similar devise to his daughter Nancy Perry. That clause is,
" 6th. I lend to my daughter Nancy Perry 140 acres of land, to be possessed by her during her natural life, and the natural life or widowerhood of her present or future husband, and at her death and the death or after marriage of her husband, then to be equally divided among her children if she has any; and if she has none, then to be divided among all my children."
The 10th is, " I lend to my daughter Sally, 140 acres of land, to be possessed by her and any husband she may have, upon the same terms and conditions as Nancy Perry's."
The 11th is, " I lend to my five daughters each one slave and her future increase, to be possessed by them, and upon the same terms and conditions as they will hold their lands; that is to say," proceeding to name the slave given to each."
Nancy had a husband and children at the date of will and death of testator. Sally was then of tender years, and never married. The will is dated in 1807, and was probated in 1810. Sally died in 1857, leaving the land and twenty odd valuable slaves the progeny of the woman bequeathed to her, and a will by which this property was given to the female appellant, if hers to dispose of.
The construction cannot be affected by the use of the word " lend." There is no difference in reason or authority between a loan for life and a gift for life. Parker & wife v. Wasley's ex'or, 9 Gratt. 477; London v. Turner, 11 Leigh 403.
If the word children, where it first occurs in the 6th clause, is held to be a word of purchase and not a word of limitation, then the effect of this clause is to create in Nancy Perry an estate in the land for her own life, and the life or widowerhood of any husband she might have, with a contingent remainder for life to any children she might have, and who should be living at her death, if she survived her husband, or at his marriage or death if he should survive her; or if she should have no child living at that one of these events which should occur last, then with a substitutional contingent remainder for life to such of the testator's children as should be living at the date of such event; and the fee would be undisposed of by this clause. Of course I am throwing out of view now the statutes abolishing estates tail, or rather converting them into fees absolute, and the statute dispensing with words of inheritance in order to create a fee, which statutes I shall presently show should have no effect upon the construction in such a case as this, and I am considering now this clause in the light of the common law, " the law as it aforetime was." According to that law it is clear that if land be devised to A. for life, and at his death to B. and D. if then living, and if not, then to C. and E.; B. and D., and C. and E. would take contingent remainders for life, B. and D.'s being contingent upon the event of their surviving A., and C. and E.'s being contingent upon their surviving A., and B. and D.'s not surviving him; and the fee would descend to the heir.
This then is the result of the construction contended for by the appellees, and it involves the imputation to the testator of the following absurd, unreasonable and inconvenient testamentary disposition. If his daughter should die leaving one child and a dozen grandchildren, the children of deceased children, the surviving child would take all and the grandchildren nothing. If she should leave no child, but a dozen grandchildren, the grandchildren could still take nothing, for the land is directed to be divided among his children if she has no children. And if all her children should survive her, they could at the common law take only life estates.
And yet no one can doubt that the testator intended that that portion of his property which he set apart for his daughter should remain to her issue forever, and should never go over to his other children until her issue was extinct. If this intent be manifest then the word children is synonymous with the word issue, is used as a nomen collectivum, and not as a designatio personæ , and is a word of limitation and not a word of purchase. Indeed, this word in a will is to be construed a word of limitation or of purchase, as will best effectuate the intention of the testator; and is most generally in a will a word of limitation, unless there are children living at the date of the will or death of testator, or unless words of inheritance are superadded to the gift to children.
In the great case of Jesson v. Wright, 2 Bligh. 1, decided in 1820, the court of King's Bench adopted such a construction as is contended for by the appellees here, but after the most elaborate argument by the most distinguished counsel, this decision was reversed in the House of Lords; the Lord Chancellor, on moving judgment, remarking, that the court below had decided that " Wm. Wright took only a life estate under the will, with remainder to his children for life, " and that the appellants alleged " for error that the testator intended to embrace all the issue of the said Wm. Wright, which intention can only be effected by giving to the said Wm. Wright an estate tail," proceeded thus: " I will not trouble the house by going through all the cases in which the rule has been established, that where there is a particular and a general intent, the particular is to be sacrificed to the general intent. A great many certainly, and almost all of them, coincide and concur in the establishment of that rule." " It is definitely settled as a rule of law that where there is a particular and a general or paramount intent, the latter shall prevail, and the courts are bound to give effect to the paramount intent."
The words of the devise in that case were as follows: " I give unto William, one of the sons of my sister Ann Wright, all that messuage," & c., " to hold the same premises unto the said William for and during the term of his natural life, and from and after his decease, I give and devise all," & c., " unto the heirs of the body of the said William, lawfully issuing, in such shares and proportions as he the said William, in and by deed or writing or last will shall give, direct, limit or appoint; and for want of such appointment, then to the heirs of the body of said William, lawfully issuing, share and share alike, as tenants in common, and if but one child, the whole to such only child. And for want of such issue I give and devise all," & c., " to my right heirs forever, charged," & c.
The intention of testator to confine William to a life estate could not be more plainly expressed, and notwithstanding the use of the words heirs of the body, it is equally obvious that, " from and after William's decease," the testator intended the messuage, & c., to go to William's children equally, if he had more than one, and if one child only, the whole to that child. William could not appoint to any but children, if there was any child living; and heirs of the body, in the technical sense of the term, could not take together share and share alike as tenants in common. They could only take successively one after another. It is equally obvious that the testator intended the children to take as purchasers under his will.
But, say Mr. Jervis and Sir Edward Sugden, counsel for the appellants, " it was the intention of the testator to include all William's issue, and sufficient appears on the face of the will, to enable a court of law to effectuate that intention. The decision in the court below attributes this meaning to the testator, that if William had only one child born who survived him, such child should take the whole estate for life; but if he had twelve (for example), and eleven died in his lifetime, the surviving child should have only a twelfth of the estate for his life. Is this a probable intention? Again, if he had twelve children, and they all died in his lifetime, leaving issue, according to this decision none of the issue could take. If their parents indeed had lived, they might have been supported out of the estate, but if their parents chanced to die in William's lifetime, they could derive no benefit from the estate. If we consider the probable duration of their lives, it is not likely that the testator intended to stop there, with all the risks attending such a limited bounty, and then to give the estate to his heir at law. What is the value of such a gift? To the devisees it is highly important that the estate should not go over until a total failure of their issue; but to the heir the value of a reversion in fee after a life estate to a young person, with remainders for life to all his children, is trifling. Suppose that twelve children had survived William, is it a probable intention that upon the death of each a share should fall to the heir, who would thus perhaps be a long series of years acquiring all the shares in the property? The testator intended William to take for life, and he intended all his issue to take. But he intended his children to take as purchasers, and it is manifest that he considered, although erroneously in point of law, that his intention to include all William's possible issue, would be effectuated, if the children did take as purchasers. The argument assumes this shape, that, because he intended the children to take as purchasers, and has not repeated words of inheritance, they can only take for life as tenants in common."
Sir Edward, after referring to some cases, continued: " The inconvenience of the supposed intention has been already stated. If only one child should be born, they imagine the testator meant he should take the lands for life. If twelve children, and eleven die infants, according to one construction, the survivor would take the whole; according to another construction, he would take only a twelfth part. If the eleven died leaving families, the families would take nothing. If, according to the argument, the children would take estates only for life, the necessary consequence is, that the parent must take an estate tail; otherwise the intention of the testator is frustrated. He intended to provide for the issue, and they would have no provision. If the gift had been to " children," instead of " heirs of the body," the same argument would have arisen. The word children, when used as a class, gives the same interest." It is argued that he meant the children to take, if more than one, because he gives to one child, if there should be but one. No doubt that was his intention, and that they should take as purchasers, but he also intended that children's children to the last generation should inherit, before the estate should go to the remainderman. In the case of one child, he meant that the one child should take the inheritance, and a limitation to children or a child as a class, is sufficient to give such interest. In Hodges v. Middleton, the words child or children are used throughout the will; the limitation over is on failure of children, not issue. The court collects the intention to give the parent the inheritance from the use of these words as a class. So in Jones v. Morgan, Lord Thurlow held, that where children are to take as a class, they must take as heirs. Some stress was laid upon the circumstance that the estate was expressly devised to William for life. But that circumstance has been disregarded in similar cases, even where the strong negative words, only, and no longer, have been superadded. But it is material in this view, that it shows by opposition, that he did not intend the children to take life estates only. To William for life, and after his decease to his children. Had he intended them also to take for life only, he would of course have said so. Lord Mansfield often truly observed, that when a man gives a house to one, he always means to give the entire interest in it, the same as if he had given him a horse. To effect this intention the courts have gone great lengths to supply, by other words and implications, the want of express words of inheritance." -- " It is said the provision and devise, if one child, to that one, includes the other case, viz: of there being more than one, in which case they were all to take; granted. But still it remains to show, that because the children were to take, they were to take life estates only. If but one child, the whole to that one child, i. e. the whole estate, and also the testator's interest in it. This is what the testator meant, although his meaning cannot, in this way, be effectuated. The gift over, " for want of such issue," afforded irresistible evidence of the testator's intention that the estate should not go over until a general failure of William's issue."
So, here, the provision that the land should be " divided among the children" of Nancy Perry, " if she has any," includes the other case, that if she has only one, then that one to take all; and the words of the gift over, " " if she has none, then" over, furnish evidence equally irresistible that the testator did not intend to confine the children to life estates. He gives the land over " if she has none," and must have intended that it should remain with the children and their issue, if she had any. If he had intended it should go over upon the death of Nancy's children, he would have used very different or additional words.
Mr. Sugden goes on: " It is immaterial whether the words were heirs of the body or children; in either case the intention would be equally apparent to pass the inheritance. A tenancy in common is incompatible with an estate tail in the parent, but that does not prove that the testator intended the children to take for life only. The following rules may be safely laid down:
" I. That a devise may, in favor of the intention, include all a man's possible issue, although in terms only a particular class is included."
" II. That if words are used which denote an intention to give the estate to the children by purchase, they shall take in that character where they can take by force of the will such an estate as will include all the issue, so that the estate may not go over before a total failure of issue."
" III. That although such an intention is apparent, yet when the general intention, viz: to include all the issue, can only be effectuated by vesting an estate tail in the parent, he shall take that quantity of interest in opposition to the words of the will. The particular intent of the testator shall be sacrificed in favor of his general intent."
In support of these principles, Sir Edward Sugden referred to Robinson v. Robinson, 1 Burr. R. 38, decided in 1756, where the devise was of " all my real estate (except my estate in the parish of Endellyon) to Lancelot Hicks, for and during the term of his natural life, and no longer; provided that he alter his name and take that of Robinson, and live at my house at Bochym; and after his decease to such son as he shall have, lawfully to be begotten, taking the name of Robinson; and for default of such issue, then I bequeath the same to my cousin Wm. Robinson and his heirs forever."
The testator died 30th September 1728, and Lancelot took the name of Robinson, and afterwards had two sons, the elder of whom died, and then Lancelot died, leaving his younger son an infant. Both sons took the name of Robinson, and the question was, " Whether any and what estate or interest is vested in the said infant and second son of Lancelot by virtue of the said will."
This case was thrice argued in the King's Bench.
Many cases were cited on both sides, and the judges of the King's Bench unanimously certified in these words: " We are of opinion, that upon the true construction of the said will of the testator George Robinson, the said Lancelot Hicks must, by necessary implication, to effectuate the manifest general intent of the said testator, be construed to take an estate in tail male, he and the heirs of his body taking the name of Robinson; " notwithstanding the express estate devised to the said Lancelot Hicks, " for his life and no longer."
A decree was entered in accordance with the certificate, and on appeal to the House of Lords, the opinion of all the judges was taken, and they unanimously agreed with this certificate.
Now here is a case in which the particular intent of the testator to confine the first taker to a life estate, is expressed in the strongest terms, and in which nevertheless, the court, after the most thorough consideration, determined that in order to effectuate the general intent in favor of the issue, he should, by necessary implication, take an estate tail. The word " son" is certainly no more a word of limitation than the word " children; " and certainly there is nothing in the language employed, more strongly manifesting the testator's intent, in favor of Lancelot Hick's issue, than there is in the language employed by the testator in our case. The general intent in favor of the issue in that case, was manifested and implied from the gift, after the first taker's decease, " to such son as he should have, lawfully to be begotten," without the addition of words of inheritance, " and for default of such issue then" over, showing that notwithstanding the omission of words of inheritance in the gift " to such son as he should have," yet the testator manifestly intended " such son," if Lancelot should have such, to take the whole estate, for he only gives it over in the event he should have none.
So in our case it is evident the testator intended the property he gave to his daughter for life, should after, or at her death, go to her children forever, if she had any, for he only gives it over, " if she has none." Yet as there is an omission of words of inheritance in the gift to the children here, as in the gift to the son above, and as the effect of holding the word " son" and the word " children," to be words of purchase, would be to confine the " son" and the " children" to life estates, and to disinherit their issue, and as the general intent in favor of the issue, can only be effectuated in either case, consistently with the rules of law, " as it aforetime was," by giving the parent an estate tail, " he shall," in accordance with Sir Edward's iii rule, and the certificate of all the judges above, " take that quantity of interest in opposition" even " to the words of the will." --" The particular intent shall be sacrificed to the general intent."
Wild's case, 6 Coke R. 16, is a strong authority for an estate tail here. The devise there was to " Rowland Wild and his wife for their lives, and after their death, to their children; they then at the date of the will having two children. And it was held that Rowland and wife took joint estates for life with remainder to their children for life; and the reasons assigned according to Coke were 1st, that there were children living at the date of the will; and 2ndly, that there did not appear any general intent in favor of an inheritance to the children; and says the report, " as the heir is to sit in the place of the ancestor and in his stead to do and perform all proper services for the king and commonwealth, and is favored by the law, he shall not be disinherited except by express words or necessary implication." These reasons imply that if there had been no child living, or if there had appeared any general intent in favor of an inheritance in the children, then in either case an estate tail would have been given to the parents. There was not in that case any limitation over in default of children as there is in ours.
But it was at the same time resolved, that if a devise be to A., and his children, and there is no child living at the time, A. shall have an estate tail, and in support of this, a case in Sergeant Bendloe's R. 4 Eliz. is referred to. And while toward the end of the report it is asserted that if a devise be to A. for life, and after his death to his children, then, even though A. has no child at the time, he shall only take a life estate, with remainder for life to his children, yet no case is referred to in support of this proposition, and it is therefore, a mere obiter dictum. Besides, the case supposed is unlike ours, because there is no limitation over in default of children.
By the report of this case contained in Moore 397, under the name of Richardson v. Yardley, according to Lord C. J. Alvanley, in Seale v. Barter, 2 Bos. & Pull. 485, and Sir Edward Sugden in Jesson v. Wright, 2 Bligh 38, it appears that Popham and Gawdy Js. held that Wild took an estate tail, notwithstanding that he had children living at the time of the devise, though Fenner and Clench thought it was only an estate for life, and they all agreed that if no children had been born it would have been an estate tail.
So, at same page, Sir Edward gives the following case: " A devise to William for the term of his life, and after his decease to the men children of his body; and if he dies without man child," or according to counsel in Seale v. Barter, 2 Bos. & Pull. 485, " without men children of his body, then" over; and it was held that William took an estate tail. 1 Anderson R. 43. This case is referred to by Lord Alvanley in Seale v. Barter, having been stated by the counsel just as it is by Sir Edward, except as above noted, and except that he refers it to 1 And. Pl. 110; and it was referred to in argument before Lord Mansfield, in Hodges v. Middleton, Doug. 431; and not a word escaped either bar or bench, hinting even a doubt as to its correctness and authority.
Hodges v. Middleton, ubi supra, decided in 1780, is another strong case for the appellants. There the devise was, " I give to my kinswoman Mrs. Anne Middleton, my house and lands at Arlborough Hatch, and all my real estate in the parish of Barking, during her life; and at her death to her children, upon condition that she or they constantly pay £ 30 a year for a clergyman to officiate in my chapel, & c.; and on failure of these conditions here mentioned, then I give the said house and lands to my own next heirs, to be enjoyed by them on the same conditions; and in case of failure of children of my said kinswoman Mrs. Anne Middleton, then I give the house and lands aforesaid to her brother Mr. George Hodges and his children, on the same conditions; and in case of failure of his children, then I give the said house and lands to the sisters or sister of the said Anne Middleton and George Hodges, to be equally divided between them or their children that are living at that time." Anne Middleton had seven children living at the death of the testatrix, the testatrix having died only a year after the date of her will, and she had six living at her own death. Joseph Hodges, son and heir at law of George Hodges, who was heir at law of the testatrix, " brought his bill to have his right to the freehold and inheritance of the said premises, subject to the life estates of the surviving children of Anne Middleton, and for an injunction against waste."
Hill, sergeant, for the plaintiff, contended that Anne Middleton only took an estate for life, and that her children being in esse at the date of the will and death of the testatrix, took an estate for life by purchase, in joint tenancy. That it is laid down in Lord Coke's Comm. upon Littleton, that if B. have divers sons and daughters, and A. give lands to B., and liberis suis, the father and all the children take jointly. So in Cook v. Cook, 2 Vern. 545, it is said that if there is a devise to J. S. and his children, if he hath children, they take with their father; but if he hath no child, it is an estate tail. And in Wild's case this distinction is made between children being in esse and not in esse, it being there determined that if land be devised to A. and his wife, and after their decease to their children, they then having issue a son and daughter, A. and his wife had but an estate for life, with remainder for life to their children." To which it was replied: " It is admitted that there are cases where the word children in a will is a word of limitation, and creates an estate tail; that Lord Hale in King v. Melling, 1 Ventr. 225-31, seems to think it may be nomen collectivum, althongh there be children then in esse; and that in the case from 1 And. above referred to, though Lord Coke said it was determined to be an estate tail, because it did not appear in the case that there were issue male at the time of the devise, yet in this he must be mistaken, as neither of the two other reporters mention that circumstance; and if the determination had proceeded upon such a distinction, the fact would certainly have been enquired into and ascertained.
The court of King's Bench, Lord Mansfield presiding, returned a certificate in these words:
" We are inclined to think that under the will of Frances Bladen, the testatrix, Anne Middleton took an estate tail, but if she took an estate for life only, we are of opinion, that her children would take an estate tail, and in either case the limitation to George Hodges, the heir at law, was barred by recovery, and the plaintiff has no title."
It will have been noticed that the plaintiff's counsel conceded there would have been no question as to Anne Middleton's taking an estate tail, if she had not had children in esse at the date of the will, and that the defendant's counsel argued to show that this fact should make no difference in the construction; and it is impossible to doubt that the court, but for this fact, would unhesitatingly have declared its opinion to the same effect. This fact does not exist in our case, and this decision is therefore most persuasive. The only circumstance to distinguish this case from ours, is the sole circumstance relied on to confine Anne Middleton to a life estate; and that circumstance was held insufficient for that purpose, and being absent from our case, the testator's daughter, Sally Stone, must, according to this decision, be held to take an estate tail.
Seale v. Barter, 2 Bos. & Pull. 485, decided in 1801, is another most persuasive authority. The devise was, " It is likewise my will that all my lands and estates shall, after my decease, come to my son John Seale and his children, lawfully to be begotten, with full power for him to settle the same, or any part or parts thereof, by will or otherwise, on them, or any of them, as he shall think proper; and for default of such issue, then that all my lands and estates come to my daughter Elizabeth Seale and her children, lawfully to be begotten, with full power for her to settle the same, or any part or parts thereof, by will or otherwise, on them, or such of them as she shall think proper; and in default of such issue, it is my will and meaning that all my estates and lands shall belong to my said son and daughter equally between them, to whom in such case I do hereby give, devise and bequeath the same." The testator died in 1777, leaving his said son and daughter his only children. His son was married at the date of the devise, but then had no child; afterward he had one in testator's lifetime, and several since, and the question was what estate he took under this devise. The case was twice argued, and the authorities reviewed and commented on. I beg to quote a sentence or two: " In the present case the devise is to J. S. and his children, and in default of such issue, then only is it to go over, which shows that the children were intended to take an estate of inheritance, which they could not do but through their father, nor through him unless he took an estate tail. In Davies v. Stevens, Douglas 320, there was a devise of the fee simple and inheritance to William and his child or children forever, and it was held to be an estate tail in William, Lord Mansfield saying the meaning is the same as if the expression had been to William and his heirs, that is to say, his children or his issue. Now if in that case the word children was held synonymous with issue, in order to restrain the devise to an estate tail, there is no reason why in this case it may not be held to bear the same sense, in order to enlarge the devise to an estate tail. The general intention was that the estate should not go over to E. S. until after an indefinite failure of the issue of J. S.; but if the word children is to be held to be designatio personæ , though there was no child in esse at that time, what is there to give to the children anything more than estates for life?" Lord C. J. Alvanley, after reviewing the cases, and amongst others, Wild's case, as reported by Coke and by Moor, and King v. Melling, Robinson v. Robinson, and Hodges v. Middleton, and combating the argument that the power to appoint among the children should vary the construction, expressed himself in conclusion thus: " The true question to be considered is, whether the testator meant to give the estate to John Seale and his posterity? Probably, if the testator had been asked, whether he meant that his son should have the power to defeat the limitation, he would have answered that he did not understand the effect of an estate tail, but that he wished the estate to go to his son and his posterity. If he meant to give the estate to his son and his posterity generally, it is an estate tail." Now we are of opinion, upon all the authorities, that the words " children lawfully to be begotten," in this case, are not to be considered as words of purchase, but that the intention of the testator was to give his estate to his son and the issue of his body generally." And it was accordingly decreed that John Seale took an express estate tail, with a power of appointment annexed.
Mellish v. Mellish, 2 Barn. & Cress. 527, decided in 1821, is another strong case for the plaintiffs. John Mellish being seized in fee, subject to a mortgage for years, of a messuage, & c., known as Hamel's, made his will, containing the following clause: " The mortgage on Hamel's to be paid off as soon as William Mellish can do it without prejudice to the business. Hamel's to go to my daughter Catherine Mellish as follows: in case she marries and has a son, to go to that son; in case she has more than one daughter at her husband's or her death, and no son, to go to the eldest daughter; but in case she has but one daughter, or no child at that time, I desire it may go to my brother William Mellish." And it was held that C. M. took an estate tail male, the word son being " construed to mean any son, whether immediate or remote, such as grandson," and therefore a word of limitation, because the effect of holding it to be a designatio personæ or word of purchase, " would be that if the son died leaving sons, the estate would go over to the daughters," and the grandsons would be unprovided for.
Wollen v. Andrews, 2 Bingh. 126, 9 E. C. L. Rep. 342, decided in 1824, is another strong authority. The devise was to trustees, " upon trust to permit the testator's six children A., B., C., D., E. and F., to have and receive one-sixth part or share each of the net rents and profits thereof, for and during the terms of their natural life and lives; and from and immediately after their respective deceases, then upon further trust to permit and suffer all and singular the child or children of such of his sons or daughters so dying, to have, receive and take the rents, issues and profits of such share or shares of him, her or them, so dying, of and in the said estates before devised, in equal parts, shares and proportions, and so on in like manner from children to children. His will further was, that in case any or either of his said children should happen to die without leaving any lawful issue, then the rents, issues and profits belonging to such of his sons or daughter so dying, should go to and be received by the survivor or survivors. " It was decided that each of the testator's six children took an estate tail in one-sixth of the property. This case is almost exactly like the case at bar, it being in short a devise to A. for life, and from and immediately after his decease to his child or children, in equal parts and shares; and if either should happen to die without leaving any lawful issue, then to his surviving brothers.
In Pierson v. Vickers, 5 East R. 518, the limitations were to the testator's daughter, Ann, and to the heirs of her body, lawfully to be begotten, whether sons or daughters, as tenants in common, and not as joint tenants; and in default of such issue, to her sisters for their joint lives; remainder to a trustee to preserve contingent remainders; and after the decease of either of them, to all and every the child and children of, & c., whether sons or daughters; and it was held that Ann took an estate tail.
In Doe d. Cock v. Cooper, 1 East R. 229, decided in 1801, the devise was of a messuage and lands to Richard Cock, " for the term only of his natural life; and after his decease unto the lawful issue of the said Richard Cock as tenants in common; but in case the said Richard Cock shall die, without leaving lawful issue, then and in such case, after his decease unto Elizabeth Harding and her heirs and assigns." Richard Cock died in 1800, without issue, having first suffered a recovery, and conveyed the messuage, & c. in fee. And the heir at law of Elizabeth Harding and of the testator brought an action to recover the messuage, & c. After listening to argument for plaintiff, and stopping counsel on the other side, Lord C. J. Kenyon proceeded thus: " Cases of this kind have been so much agitated of late, that all the arguments occur readily to one's mind, and after the decisions we have made, we should not be consistent with ourselves, if we were not to hold, that the first taker took an estate tail in this case. It has been the settled doctrine of Westminster Hall for the last forty or fifty years, that there may be a general and a particular intent in a will, and that the latter must give way, when the former cannot otherwise be carried into effect. I remember that point was much discussed in the case of Robinson v. Robinson. I heard it argued the first time before a very great lawyer, Sir Dudley Ryder, who then presided in this court. A second argument was directed, but he died before it came on. It was argued a second time before Lord Mansfield, and the certificate, which was afterwards returned upon the greatest deliberation is in print. Nothing could be more positive than the words of the will in that case, to show the particular intent, that the first taker should take an estate for his life, and no longer. But there was a general intent apparent, which could not be effected but by giving him an estate tail, and on that the decision was founded. The case was carried up to the House of Lords, while Lord Hardwicke sat there, and was much considered by him; and questions were put to the judges upon it, framed by him in every possible shape; and Lord Ch. B. Parker, who is known to have been a very strict lawyer, delivered their opinions, agreeing with the judgment of this court. The same question came on again to be considered in Roe d. Dodson v. Grew, 2 Willes R. 323, in the court of Common Pleas, and was there much canvassed, and underwent the same determination. Then came on the case of Doe d. Candler v. Smith, 7 Term R. 531, in which I thought I could not make the matter more clear, than by reading the words of Lord C. J. Willes in Roe d. Dodson v. Grew. Perhaps we should best fulfill the particular intent of the testator in this case, by giving Richard Cock only an estate for life; but the general intent was, that all his issne should inherit the entire estate, before it went over; and that intent can only be answered by giving him an estate tail by implication, from the subsequent words ‘ in default of his leaving issue.’ It is suggested that it would answer the same purpose, if we were to raise cross remainders by implication between the children of R. C. But to do this between more than two, without any thing further than what appears here, would be directly contrary to former authorities."
Grose J. said: " The only question is, what, upon the whole of the will appears to have been the intent of the testator? and this has been truly stated to be, that Rich. Cock should first take the estate, and after him his children, and that the remainder over should not take effect so long as any of his descendants remained. Then this general intent can only be carried into effect by giving the first taker an estate tail." Lawrence J. remarked, that cross remainders could not be given to the issue of R. C., because it was a settled rule of law that they should not be implied between more than two; and said that it was very clear here, as in Candler v. Smith, that the testator's particular intent was, only to give R. C. an estate for life, because the issue were to take as tenants in common, and therefore could not take by descent; yet in order to effectuate the general intent the estate of inheritance implied from the subsequent words must be annexed to the prior estate for life, given to the first taker.
Wood v. Baron, 1 East R. 258, decided in 1801, is another case in which the word children has been held to be a word of limitation, although there was a child living at date of devise. The words were, " I give and bequeath to my daughter Ann, the wife of Jos. Wood, all my whole estate, real and personal; also my household goods, & c., who shall hold the same as a place of inheritance to her and her children or issue forever. And if it should so happen that my daughter Ann should die leaving no child or children, or if it so happen my daughter Ann's children should die without issue, then I order and direct that all my houses and lands, & c. shall be sold and the money arising therefrom divided," & c.; and he appointed his wife, to whom he had given his whole estate for life, before giving his daughter anything, and John Bithel one of the legatees of the money arising from the sale directed if his daughter should die without leaving any child or children, and another, his executors. His daughter had one child at date of will and several afterwards, and it was contended that according to Wild's case a child being in esse, mother and child must be held to take joint estates; but it was determined unanimously, Lord Kenyon presiding, that Ann Wood took an estate tail.
This is a much weaker case for an estate tail than the case at bar, for the inheritance being first given to the mother, and the limitation over being to take effect only upon her dying leaving no child or children, or issue of any child or children, there was no danger of disinheriting any of her issue, while in the case at bar the words of the limitation over extending expressly only to children, there is danger, if a literal and strict construction were adopted, of the grandchildren or issue of children being utterly disinherited. It would be vain to argue for any difference in the intention respectively, of the testators in these two cases. The intention of each was obviously the same, and is only more liberally and fully expressed by the one than the other. It is certain that Mr. Stone intended that part of his land which he carefully laid off and assigned to his daughter, should be a place of inheritance for her and her children; and it was only for the purpose of more certainly assuring it to her and her children as a place of inheritance, that he determined to confine her to a life estate. And it is just as certain that he did not intend that it should go over so long as his daughter had any children or the issue of any children to enjoy it. That the devise in our case is expressly to Nancy Perry for life can make no difference, as is shown by many cases. " It is immaterial," Lord Thurlow observes, in Jones v. Morgan, " that the testator meant the first estate to be an estate for life. I rest it upon what he meant afterwards."
And how aptly do the words of Grose J. in Cock v. Cooper, supra, apply to this case. " The only question is, what upon the whole will appears to have been the intent of the testator? And this has been truly stated to be that Richard Cock (Nancy Perry or Sally Stone), should first take the estate, and after him, his (her and her husband, her) children, and that the remainder over should not take effect so long as any of his (her) descendants remained. Then this general intent can only be carried into effect by giving the first taker an estate tail." You cannot confine the first taker to a life estate, and say that the remainder in fee shall vest in the first child that is born, subject to be divested in part on the birth of each subsequent child, who will take undivided shares likewise in fee, because, first, of the want of words of inheritance in the gift to the children; and secondly, supposing the statute dispensing with words of inheritance could apply, because if either of the children should die without issue, his share would pass from the family and could not go to the surviving children, as cross remainders could not be implied between them. Jesson v. Wright, Cock v. Cooper, and other cases cited, supra.
It is respectfully submitted that these decisions of the highest judicial tribunals in England, embracing some of the most important earlier and later cases on this vexed subject, show that according to the law, " as it aforetime was," the testator's daughter Nancy acquired an estate tail in the realty, and the absolute property in the personalty, given to her by the will. It is true some English cases may be found in conflict with these. But they are mostly the decisions of a single judge, and they will be found on examination to have proceeded on principles at war with those which prevailed in the earlier and in the later cases decided by the highest English tribunals, and to be therefore not entitled to respect even though they may not have been expressly overruled by the later decisions. The most distinguished of these cases, and the latest in point of time, is Forth v. Chapman, 1 P. Wms. 664, decided by Lord C. Parker in 1720. There the devise was to two nephews, " and if either of them should depart this life and leave no issue of their respective bodies, then he gave the leasehold to the daughter of his brother Wm. Gore, and the children of his sister Sibly Price." Question, whether the limitation over was void as too remote? The court below was of opinion devise over was void, but Lord Parker, on appeal, reversed the decree and said, " that if I devise a term to A., and if A. die without leaving issue, remainder over, in the vulgar and natural sense this must be intended if A. die without leaving issue at his death, and then the devise over is good." And further on he said: " If the words of a will can bear two senses, one whereof is more common and natural than the other, it is hard to say a court should take the will in the most uncommon meaning. To do what? to destroy the will?" And further he said: " It might be reasonable enough to take the same words as to different estates in different senses." As if a testator could intend to use the same words in their natural or more common sense as to personalty, and in a different or artificial sense as to realty. And he held, without any better reasoning or authority, that as to freehold an estate tail arose, but as to leasehold a life estate only.
This judge had previously decided the cases of Nichols v. Hooper, 1 P. Wms. R. 198; Target v. Gaunt, Id. 432; Pinbury v. Elkin, Id. 564; and Hughes v. Sayer, Id. 534, upon the same principles.
In all these cases, in which a restricted construction was adopted, it is a pregnant circumstance that the first taker took the fee or absolute property by virtue of the devise or bequest to him, that is, such an interest as would have carried it to his issue, if he had any, except in the case of Target v. Gaunt, where the bequest was to first taker expressly for life and no longer.
Just about 100 years after these cases were decided in England, and when they had ceased to be of any authority there, or at least when the principles on which they proceeded had been disregarded in various subsequent cases, and very general disapprobation expressed of them, the case of Timberlake v. Graves, 6 Munf. 174, was decided, apparently upon these much questioned and disregarded if not utterly exploded principles. And this case was followed in rapid succession by Gresham v. Gresham, Id. 187; James v. McWilliams, Id. 301; Cordle's adm'r v. Cordle's ex'or, Id. 455; and Didlake v. Hooper, Gilmer 194.
These cases have been overruled by the cases of Griffith v. Thompson, 1 Leigh 321; Deane v. Hansford, 9 Id. 253; Callava v. Pope, 3 Id. 103; Moore v. Brooks, 12 Gratt. 135.
The case of Smith v. Chapman, 1 Hen. & Mun. 240, is the only one to be found in the books, English or American, that tends to sustain the proposition that the testator's daughters take under the will here only estates for life and not fee tails, and that case we humbly submit was wrongly decided, is in conflict with prior and subsequent decisions in our courts, and has been overruled by many later decisions. It never could have been decided as it was in England, and never would have been so decided in this State, but for the controlling influence which the statute of 1776, abolishing entails, and that provision of the statute of 1785, which dispenses with words of inheritance in order to create a fee, had upon the minds of the judges who sat in it. An examination of the separate opinions of those judges will render this perfectly obvious.
This use of these statutes was contended for by Judges Coalter, the later Tucker and others, in many cases. In Thomason v. Andersons, 4 Leigh 118, the latter contended for it and showed that in his opinion the decison in Smith v. Chapman was based upon it. He said, in arguing against the creation of an estate tail in that case, p. 126: " And his children, had the estate ever vested in them, would have taken a fee as I think by the operation of the statute of 1785, dispensing with words of inheritance in the creation of estates in fee simple. Smith v. Chapman, 1 Hen. & Mun. 240." In Bells v. Gillespie, 5 Rand. 273, 302, Judge Coalter claims Smith v. Chapman to be a decision in favor of this use of the act, and asks, " Has this case been overruled? It may be said that it has, because in many cases we have recognized the British doctrine in a search after the intention." At page 303, after alluding to the departure from the doctrine of Smith v. Chapman in several later cases, and to the consequent passage of the act of 1819, restricting the meaning of a limitation over upon the death of the ancestor without heirs, or heirs of the body, or issue, or children, to a dying without such living at the time of the death, he said: " Suppose the course of decision now indicated by the legislature had taken place soon after 1787; or had been considered as settled by the case of Smith v. Chapman, as it ought to have been, and persevered in since; could any one have complained? So far from it, the act of 1819 would have been unnecessary." And on next page he said: " The only question now remaining for us to consider is, whether we can now throw off the wrong and take up the right rule?--If we cannot go back, cannot we now re-assert and establish the doctrine laid down in Smith v. Chapman, " & c.?
But the court pronounced against the use of these statutes in Bells v. Gillespie, notwithstanding the argument of Judge Coalter and the decision in Smith v. Chapman, and continued so to pronounce until in See v. Craigen, 8 Leigh 449, Judge Tucker, the last advocate for this use of them, surrendered and gave up the point. At page 452, he said: " This use of the statute has been attempted in many cases, but has been as repeatedly overruled. I have struggled for it in many cases, but have found myself in the woful minority of one. I must therefore surrender, and in doing so I must pronounce against the effect of the statute in this case." Since the case of Smith v. Chapman, the true doctrine has been in repeated cases held to be, in the language of Judge Brooke in See v. Craigen, " that these acts can only apply in cases where the rules of construction, ‘ as the law aforetime was,’ in respect to estates tail and executory devises, applied to the words in the deed or will, will not be affected." The principles and grounds of the decision in Smith v. Chapman having been thus discarded, the case itself has been overruled, as is clearly indicated in the remarks of Judge Coalter above quoted, and cannot now be regarded as an authority against us, even if that and our case were exactly alike, which we have shown is not the fact.
The Virginia cases, both prior and subsequent to those above commented on, which have met with almost universal favor, about which there has been scarcely any dissatisfaction expressed, and which must now be taken to furnish the law upon the questions here involved, are very numerous; and commencing with Roy v. Garnett, 2 Wash. 9, come down to Tinsley v. Jones, 13 Gratt. 284. Most of these earlier cases are brought in review by Judge Carr in Bells v. Gillespie, 5 Rand. 273-280, et seq.; and I will not stop to state or comment on them.
Bells v. Gillespie is an important case. It was thoroughly argued by bench and bar. After giving each of five sons a fee simple in different tracts of land, the testator says, " My will is, if either of my sons should die without lawful issue, that the part allotted them be equally divided among the surviving brothers, children of my last wife." Judge Carr, p. 277, asks, " what did he mean? Did he look to a definite or indefinite failure of issue in the first takers? It seems to me clear that the land given to each son should be enjoyed by the family of that son so long as any branch of it remained; and that whenever it failed the land should go over. Each son and his family were the first objects of his bounty, as to that part of his land given to each; his other sons and their families the second. Suppose P. Bell had left a child at his death, and that child had died the day or the hour after him. Did the testator mean in such case that his other sons should have no part of or interest in P. Bell's land? Why he should postpone their interests to the failure of the issue of P. Bell, I can clearly see, but I cannot perceive why time should be so important with him as that he should say to his other sons, ‘ though it is my will that you have the land of P. Bell if he has no child at his death, yet if he leave a child you shall not have it, though that child die the next hour.’ If he had had this idea in his mind would it not have been more natural and direct to have said, ‘ it is my will that if either of my sons die without issue living at his death his part shall be equally divided among his surviving brothers?’ "
How strong, pertinent and apposite are these observations to the case now in hand. It is impossible to read Caleb Stone's will without being impressed with the conviction that as to the land he gave to each of his daughters, he intended it should be enjoyed by each daughter and her immediate family so long as any branch of it remained; and that it should never go over to the other children, while any issue of that daughter was in being, whether that issue were children, grandchildren or great grandchildren. Indeed in one aspect our case is a stronger case for an estate tail than Bells v. Gillespie, for in the latter, the fee being first given to each son, if he had any issue at his death, that issue, whether children or remote descendants, could take the whole estate, whereas here a life estate only being given expressly to each daughter, and the limitation over being on failure of children, and not issue, unless the daughter take an estate tail, none but children could take at her death, and they only for life, there being no words of inheritance superadded to the devise to them.
In Bells v. Gillespie, great reliance was placed on the words " that the part of the land of any son dying without issue should be equally divided among the surviving brothers, " to tie up the failure of issue to the death, and Judge Carr referred to several cases, English and Virginian, to show that these words could not properly have this effect. Among others, to Barlow v. Salter, 17 Ves. R. 479, in which the devise was in these words, " all my estate, real and personal, to my daughter M. V., to her and her heirs; and half the navigation money for her natural life; and in case she dies without issue, all to be divided between my four nephews and nieces, N., W., C. and E.; C.'s part only for life, and her part to be divided between the survivors." The bill was filed by one of the nephews against the daughter, praying that the nephews and nieces might be declared entitled in the event of the daughter's dying without issue living at her death; and praying an account accordingly. It was admitted that there was no real estate, and this makes the case the stronger, for it is well known that slighter words will be taken to tie up the failure of issue to the death in personal than in real property. The master of the rolls went into the consideration of the words, in case she dies without issue. The judges in some of the early cases, he said, had inclined to hold these words to mean issue at the death of the person named, but he thought that ever since the case of Beauclerk v. Dormer, a different rule had prevailed. The single circumstance relied on in this case in favor of the restrictive construction is, that one of the four persons to whom the bequest over is made, is to take a life interest in her part, which is to be divided equally among the survivors. But in the case at bar it is not even survivors; it is that the land shall be divided among all my children.
The cases of Carter v. Tyler, 1 Call 165; Broaddus v. Turner, 5 Rand. 308; Ball v. Payne, 6 Id. 73, are to the same effect, and are strong and pertinent authority for the construction for which we contend.
The case of Bramble v. Billups, 4 Leigh 90, runs on all fours with the case at bar. There is no substantial differencc between the limitations in the two cases. Children is certainly as much a word of limitation in a will technically as offspring is, and there is nothing in our case, not a single circumstance, which is not present in this case, to show that Caleb Stone, rather than Matthias Christian, mean by the word children, only such children as should be living at his daughter's death. The intention of Christian to provide for the issue of his daughter generally, and that the issue, if any, should take the whole estate, is manifested by the fact that he only limits it over in the event of her having none. The same intention on the part of Caleb Stone is evinced by the same circumstance. But the offspring could not take the whole estate, if the term offspring were held to be a word of purchase, because of the absence of words of inheritance in the gift to them. The life estate of the parents was therefore raised into a fee tail. The same reason and necessity for the same thing exists here; and shall a different result be arrived at.
The power of appointment given to Bramble and wife, it was insisted, tied down the failure of issue to the death of the survivor of them, because it must be intended such issue as they could appoint to; and it seems that such a power has been permitted, in some cases, to have a controlling influence in this respect. But in many others such influence has been denied to it. Yet it cannot be denied that it is a circumstance tending to show that the testator intended only such issue as should be living at the death. That indicium of such an intent is absent from the case at bar. It is not in the power of any ingenuity to distinguish between these cases with the view of showing that the testator Christian intended to provide for all the issue of his daughter, and that the testator, Stone, did not intend to provide for all the issue of his daughter. That the word offspring is used in one case and children in the other, can make no difference against us here, as many cases to which I have referred, and the next case to which I shall refer, Thomason v. Andersons, 4 Leigh 118, abundantly show. Indeed the necessity for giving an estate tail, in order to effectuate the general intent of the testator, is greater, because of the use of the word children; for used as a designatio personæ the word offspring would embrace children and other descendants, however remote, while children, construed to be a word of purchase, would not; and thus the chances of defeating the intention in favor of all the issue, would be greater in the latter case than the former.
The whole opinion of Judge Carr in this case is a forcible argument in favor of the appellants here. I beg to refer the court to his exposition of the force or effect of the expressions, " if any by my daughter Lydia," and " if they have any," & c., and " if they have none," on p. 94, which are almost identical with the terms employed by the testator here, in the devise to Nancy Perry. On p. 95 he refers to and approves the decision in Doe v. Goldsmith, 7 Taunt. 209, " where the devise was to F. G. for life, and immediately after his decease to the heirs of his body lawfully begotten, in such parts and shares as F. G. should by deed or will appoint, and in default of such heirs of the body of F. G., then immediately after his decease, over to J. G.; " and the question was whether F. G. took an estate tail.
Chief Justice Gibbs in delivering the opinion of the court, thus states the argument of the counsel, who contended that F. G. took an estate for life only: ‘ That the words heirs of the body mean children of F. G., for when he devises to the heirs of the body of F. G. in such shares as the tenant for life shall appoint, that is a gift to persons who must be in esse when F. G. was to appoint to them; that the default of such issue must therefore be a default of such persons, who can only be children, and that the testator by this expression, therefore manifestly means to refer to the same persons who were to take as tenants in common under the appointment, not to the heirs of the body of the first taker in the ordinary legal sense.’ But the court, admitting all this it would seem, " said, ‘ it is an established rule, that where a general intent appears, any particular intent which appears, however clearly expressed, shall never take effect when it is inconsistent with the general intent; and it was clearly the testator's general intent that the estate should never go over to J. G. till all of the heirs of the body of F. G. were extinct,’ and therefore it was an estate tail in F. G."
Judge Tucker, who dissented, after arguing that the word offspring was a word of purchase, as shown by the power of appointment, proceeded, p. 105, to examine the terms of the limitation to Bramble and wife, and to their offspring, for the purpose of showing that only such offspring could take as should be living at the death of the survivor. He said, " the devise is to them and the longest liver of them, and then to their offspring if any. If any, when? The answer seems to be echoed by the clause, if any then, at that time. To what could he be considered as so naturally referring as to that time of which he had just spoken, namely, the termination of the particular estate? Can he be supposed to have intended no definite period, to have meant if any in the long succession of generations? I think not." Yet in next p. 107, he said, " It is said that the testator did not design the estate to go over to the offspring of Molly Baynes and Nancy Ashley as long as there were any descendants of his daughter Lydia by John Bramble; this cannot be denied. It is then said that, if the words are not construed to give an estate tail, the descendants of Lydia after the first generation would be cut off, since the offspring, if they took as purchasers, would only take estates for life, there being no inheritable words in the bequest to them. This position cannot be admitted." He then referred to several cases which were relied on to sustain this position. " In Doe v. Applin, 4 T. R. 82," he proceeded, " the devise was to A. for life, and after his decease to and amongst his issue, and in default of issue, then over: A. took a fee tail, and for this obvious reason, that as the issue could not take more than an estate for life, for want of words of inheritance, the estate would go over from the grandchildren, notwithstanding the clear intent to postpone the remainder so long as there should be issue or descendants of A. In Doe v. Smith, 7 T. R. 531, the devise was to A. and the heirs of her body forever, as tenants in common, and not as joint tenants, and in case she died before twenty-one or (and) without leaving issue of her body, then to B. Held, A. took an estate tail avowedly upon the necessity to effectuate the general intent. And Lord Kenyon said there are no words of limitation added to the estate given to the children (supposing they took as purchasers), and yet the remainder over is not to take effect until there is a general failure of her issue, so that there must be an estate to comprehend all her ehildren forever. " And having referred to Doe v. Goldsmith and Doe v. Cooper, 1 East R. 229, he continued, " In all of these cases, then, the want of superadded words of inheritance upon the devise to the issue, so as to give them heritable estates instead of estates for life, was the obvious, and in some of them the avowed principle of decision. For if we attend to the course of argument in all of them, both of the bar and bench, it is very manifest that the power of appointment, the direction to divide the estate amongst them, and the provision that they should hold as tenants in common, would in these cases, as in Doe v. Laming, have prevented the implication of an estate tail, if there had been superadded words of inheritance. Thus in Doe v. Cooper, Lord Kenyon, speaking of Atherton v. Pye, said, ‘ in that case there were words of limitation added to the devise to the daughters, and this forms a principal ground of distinction; ’ and in Doe v. Smith, in speaking of Doe v. Laming, which had been cited, he said, ‘ that case is distinguishable from this, for there were words of limitation superadded.’ … . If then the existence of an inheritable estate in the issue or offspring is the point upon which those cases turn in which there is a limitation to the issue to take in a manner different from the law of descents, then, I say, that that is furnished in the case before us by the statute of 1785, which declares that a fee shall be construed to be conveyed where there is no restriction either by express words or by construction of law." And the distinguished judge proceeded to argue, p. 110, that by operation of that statute the offspring of Bramble and wife, living at the death of the survivor of them, would take a fee simple estate; " and thus the whole generation of the testator's daughter would, in succession, come to the estate, unless it should be aliened by those in whom it might rest. And thus there would be no ground for implying an estate tail by forcibly converting a designation of the persons to take into words of limitation." And thus his honor shows the utter impracticability of confining the first taker in the case at bar to a life estate, and holding the word children to be a word of purchase, consistently with the well established principles upon which similar cases have proceeded; for it is now well established that the statute of 1785 cannot be invoked to give the children the fee. In the language of Judge Brooke in this very case, 101, that statute can only be applied where the rules of construction, " as the law aforetime was," in respect to estates tail and executory devises applied to the words in the deed or will, will not be affected. And thus this argument of Judge Tucker becomes a powerful and impregnable one, in favor of the implication of an estate tail in the case at bar; for holding throughout that it was the true intent and meaning of the testator, and the true construction of his will, that the offspring, if any, living at the death, should take the land, and if none, in default of such offspring, that is, offspring living at the death, then, and then only, the land should go over; he admits and shows, that if such offspring could not take by purchase an estate in fee; that if, taking by purchase, they would be confined to estates for life, and the daughter's grandchildren would be unprovided for, that then, in order to effectuate the general intent, such an estate must be given to the mother " as would comprehend all her children forever; " although it was the obvious intention of testator that she should take only an estate for life, and that her offspring, if any, living at her death, should take by purchase. This is as strong a statement of the case for the appellees in the case at bar as can possibly be made for them. The extremest extent of their pretensions can only be, that the word children must be taken to be a word of purchase, and to embrace and refer to children living at the death; and yet, even then, this distinguished judge, who was an advocate for the restricted construction, admits that unless the statute of 1785 could be used to give the children the fee, then a fee tail must be given to the mother. That this statute cannot be so used, has been for many years authoritatively decided. The judge (Tucker) was the last advocate for this use of the act, on the bench, and he, in See v. Craigen, 8 Leigh 449, conceding that it had been pronounced against in several cases, gracefully surrendered the point, and in doing so pronounced for an estate tail in that case.
That case differed from Bramble v. Billups, in this, that the devise was, " I give and bequeath to my daughter Phœ be Couchman the upper half of my plantation, to be equally divided between her and John Craigen as to quality and quantity; but should my said daughter die without heirs of her own body, it is then my will and desire that said half of my plantation should be divided between my son-in-law John Craigen and my son Adam See." The devise being to P. C. indefinitely, and therefore, by the rules of the common law, only for life, Judge Tucker said, " if under our law you consider P. C. as taking a fee by the operation of the act of 1785, then there is a good devise to her of the fee with a limitation over upon her dying without heirs of the body, by way of executory devise, and thus the whole line of her descendants will take, according to the manifest general intent, without the necessity of creating an estate tail." But the court again decided, and now unanimously, that that act could only be applied in cases in which by its application the rules of construction " as the law aforetime was," in respect to estates tail and executory devises, applied to the words in the deed or will, will not be affected. In this case the proposition was to add words of inheritance to the devise to the first taker P. C. In Bramble v Billups, and in the case at bar, it was and is proposed to add them to the devise to the offspring or children. The effort failed in those cases, and they control this.
In Thomason v. Andersons, 4 Leigh 118, the devise was, " I give to P. A., my natural daughter, 100 acres of land, two negroes, one feather bed, & c., to her and her heirs forever. My further will and desire is that if she should die leaving no child, the estate before given should return into my estate and be divided amongst all my children; but should she leave a living child or children, then the estate shall be heired by him, her or them, as the case may be." By a slight transposition of the clauses of the ulterior limitations here they are made substantially identical with those in the case at bar, as most strongly interpreted for the appellees. Thus: " My further will is, that should she leave a living child or children, then the estate before given shall be heired by him, her or them, as the case may be; but should she die leaving no child, then the estate shall return into my estate, and be divided amongst all my children." This transposition improves the grammatical construction, does not alter the sense, and presents more strikingly the similarity between the limitations in the two cases. But to make the limitations here precisely identical with those in our case, it is only necessary to omit certain words which are in fact absent from our case, and on which great reliance has in some cases been placed to tie down the failure of issue to the death, and then it will read thus: " My further will is, that should she leave (have at her death) any children, then the estate shall be heired by them (shall be equally divided between them); but should she die without any (should she have none), then the estate (land) shall be equally divided among all my children." In this statement of our case all is conceded that is or can be asked for by the appellees, and yet it is at once apparent, that it is a much stronger case for an estate tail than the case under consideration. The very important--so held in some cases--restrictive phrases, " should she leave a living child or children; " --" should she die leaving no child; " --" should return into my estate," are wanting in our case, and besides the fee was first given to the daughter P. A., and there was therefore less necessity for creating an estate tail in her, in order to provide for all her issue. See the remarks of Judge Tucker in this case and in See v. Craigen. Yet the court without hesitation, Judge Carr delivering a most emphatic opinion, in which Judges Cabell and Brooke concurred, pronounced in favor of an estate tail in the daughter.
Judge Carr, p. 122, said, " Did the testator mean to provide for his daughter and her issue indefinitely? If so, this is an estate tail, no matter how he may have expressed himself, or with what conditions or limitations he may have attempted to clog it." After quoting the clause he continued, " Can any one look upon it and not perceive that it was the intention of the testator to provide for the daughter and her whole line of descendants? When this intent is clear, the words child or children are taken to mean issue." Judge Tucker, upon these points said, " As to that portion of his estate set apart for that branch of his family, it is natural that the testator should have preferred her children to his own legitimate children (the daughter was an illegitimate child), and that he should have designed what he bequeathed to her to go to her posterity instead of coming back to the posterity of his other children, who had their shares of his bounty provided by other parts of his will." But he contended that the daughter took the fee subject to be defeated upon her death without a child or grandchild, and not a fee tail, remarking " the word child or children is indeed construed to mean issue or heirs of the body, when such a construction is absolutely necessary, but not otherwise. But I know of no case in which the words child or children living at the death, & c., have been so construed, where the parent herself has an express estate in fee limited to her by a prior clause of the will." And it is thus apparent that he would have concurred with the other judges but for the fact that the fee was first given to the daughter, coupled with the use of the restrictive phrases above referred to, all of which are absent from the case at bar. The only circumstances in which that case differs from ours, are the circumstances upon which the dissenting judge relied, to rebut the implication of an estate tail. That case then must rule this, unless it has been itself overruled. But so far from having been overruled, the principles upon which it proceeded have been over and over affirmed, and no word of disapprobation of it has ever escaped bench or bar. Judge Carr made, pp. 123, 4, some further remarks, which I cannot forbear quoting, as they contain a most powerful argument in favor of an estate tail here, an argument which is indeed entitled to more weight in our case than that, because of the greater risks of disinheriting the issue in our case than in that; indeed because of the absolute certainty of disinheriting all of the issue in our case after the first generation, should it be held that the mother took only an estate for life.
Said he: " If I considered it doubtful, upon the face of the will, whether this were a fee tail or a fee with an executory devise over, I should feel inclined, on several grounds, to lean against the executory devise." And adverting to the rule lad down by Lord Hale in Purefoy v. Rogers, " that where a contingency is limited to depend on an estate of freehold which is capable of supporting a remainder, it shall never be construed to be an executory devise, but a contingent remainder only; " and to the fact that an executory devise establishes a perpetuity, to its extent putting fetters upon the estate which may often last for a century, he continued, " but I do not think it at all doubtful. The testator was making provision for his daughter and her issue; would he make such a disposition of his property as, in certain events, not at all improbable, would carry it over to others, though there were descendants of his daughter in being or just coming into life? Yet such might be the case if this were taken as an executory devise, which we know is a limitation of a future interest, not to take effect at the testator's death, but limited to arise and vest on some future contingency. The contingency here would be the death of the daughter without a child living. The moment this happened the executory devise would take effect, and the estate vest in the legitimate children of the testator, and no subsequent event could divest it. Suppose the daughter had had six children who had all died in her lifetime, each leaving five children, and then the daughter died, she would die without leaving any child living, and the estate would be taken from her family though she left thirty grandchildren. It may be said the word children sometimes comprehends grandchildren, and under that meaning these would be taken in. But if grandchildren were comprehended, no one would contend that great grandchildren were, and it might well happen that the daughter might die leaving only such." And as shown by Sir Edward Sugden in Jesson v. Wright, and by Judge Carr in Bramble v. Billups, it might well happen that the daughter should die leaving only one child, and thirty grandchildren, the issue of deceased children, and in this event, in the case at bar, the grandchildren could take nothing. But for still another reason in our case the grandchildren could in no event take anything, and even children could take only an estate for life, viz: because of the absence of words of inheritance. Could this testator have designed such a result? Would he not have disclaimed the use of the word children in its natural sense, if these consequences, unnatural and revolting to his heart, had been pointed out to him? And are not the courts well justified in adopting that construction of the testator's language which will best effectuate his main design, even though his particular design may be frustrated?
The principles of these cases have been applied and the cases approved in various subsequent cases. Nowlin v. Winfree, 8 Gratt. 356; Callis v. Kemp, 11 Gratt. 78; Moore v. Brooks, 12 Gratt. 135, in which the testator said, " and it is my express desire that the parts of my estate which shall go to my daughters M. M. and C. B. shall be held by them during their natural lives and no longer, and then equally divided between their heirs lawfully begotten; " and in which Judge Allen delivered an able opinion, concurred in by Judges Moncure and Lee, wherein he referred to and approved Jesson v. Wright, and showed, p. 150, that the authority of the cases, Self v. Tune, Timberlake v. Graves, & c., had been shaken, if not overruled, by Bells v. Gillespie, & c.; Tinsley v. Jones, 13 Gratt. 289, in which, in the course of an able opinion delivered by Judge Moncure, in which all the judges concurred, he referred with approval to Waller v. Greer, Doe v. Cooper, and Doe v. Goldsmith, and Donn v. Penney, and quoted, p. 294, and approved, the remark made by Jarman, 2 vol. 446, closing his comments on the case of Pinbury v. Elkin, in which " petty distinctions" had been made, " that no judge of later times would have departed from the legal sense of the words upon such an expression as that in Pinbury v. Elkin admits of little doubt." --" But," continued the judge, " Jarman thinks that followed as that case has been by the other cases mentioned, it is too late to question its authority. We are taught, however, by the decision of Sir W. Grant, in Donn v. Penney, that the doctrine of the case of Pinbury v. Elkin will not be applied to any case in which the variation of phrase is such as fairly to take it out of the reach of its authority." And then in the same and next pages, the learned judge shows that stronger manifestation of intention to use the words of the limitation over in a restricted sense will be required in a case in which a life estate only is given to the ancestor, than in a case in which a fee simple is given to him. " In the latter case the issue may inherit from him or his heirs at law or derive it from him by deed or will; whereas in the former they cannot get it at all" (or in our case but for life), " if the words be construed in a restricted sense; and it is therefore necessary to construe them in a technical sense to effectuate the manifest intention of the testator. There can be no conceivable motive for limiting the estate over only in the event of the ancestor's dying without issue, but that the issue, if any, may have the estate" (or in our case " only in the event of the ancestor's dying without children, but that the children, if any, should take it to them and their heirs forever" ). The restrictive words should therefore be extremely strong to require such a construction as would deprive the issue of any possible means of succeeding to the" whole " estate."
He then shows that the statute of 1785 could not be used to give the ancestor in that case an estate of inheritance; and by the same reasoning, and by the definitive determination of the whole court in See v. Craigen, it cannot be used to give the children here an estate of inheritance, and the result in either case must equally be, that the ancestor must take an estate tail in order that the intention in favor of all the issue may be effectuated.
The learned judge then, p. 297, referred to the case of Lucas v. Duffield, 6 Gratt. 456, which had been relied on by counsel to show that the words " die without issue" were used in a restricted sense, and manifestly disapproving and " without undertaking to reconcile that case with others on the same subject," an undertaking which, it must be confessed, it would be very difficult successfully to accomplish, he said, " it is plainly distinguishable from See v. Craigen and other cases therein referred to, in this, that the land there was devised to W. D. to him and his heirs. " --" The decision, I imagine, would have been different if a life estate only had been given by the will to W. D., and the manifest general intent in favor of the issue could only have been effected by enlarging that life estate into an estate in tail." The phraseology in Tinsley v. Jones, is evidently more restrictive than in the case at bar. A glance at it is sufficient to show this. " It is my will if my said son J. F. B. die without issue, that the property heretofore given him shall go to his brother F. B., who in that case will lose the land heretofore given him. It being my will and desire then, and in that case, and upon the happening of the event of my son J. F. B.'s death, that the land near W., which would otherwise be F. B.'s share, be sold, and the money equally divided between my surviving children." Here is present a circumstance too which in some cases has been held to tie up the failure of issue to the death, to wit, the limitation over is first to the surviving brother, without words of inheritance, and then to the testator's surviving children, without words of inheritance. Yet his honor, without hesitation, pronounced in favor of an estate tail in J. F. B., who died without ever having had any issue, adding, " it is not material to enquire whether the remainder to F. B. is to take effect on the death of J. F. B. without issue indefinitely, or without issue living at his death; as, by the act for docking entails, all remainders, whether contingent or vested, depending on an estate tail, are utterly barred; and as the case occurred before the act of 1819, giving effect to every limitation upon such an estate, which would be valid when limited upon an estate in fee simple created by technical language." And he referred to a long line of cases, commencing with Carter v. Tyler, and ending with Moore v. Brooks, ubi supra, to sustain the principles on which his opinion was based. 2 Jarman 440-1 marg. 315-16 top 312 top, 435 marg. 315 top, 440 marg.
Treating the question as I have hitherto, as if the testator had employed the same words in making the devise to his daughter Sally that are employed in the clause making a similar devise to his daughter Nancy Perry, I submit with confidence that upon principle and authority, Sally must take a fee tail in the land. " And if as applied to real estate the clause created an estate tail in the daughters, in such case the full and entire interest in personalty will pass to them; as an estate tail in personal property gives the absolute dominion." Allen P. in Moore v. Brooks, 12 Gratt. 135, 144. Mr. Jarman (2 Jarman 300 top 418 marg.) says, " the established legal construction of the several expressions, ‘ if he die without issue,’ ‘ if he have no issue,’ ‘ or if he have no issue,’ or ‘ if he die before he has any issue,’ or ‘ for want or in default of issue,’ unexplained by the context, and whether applied to real or personal estate, notwithstanding the distinction taken between these two species of property in some of the early cases,-- Target v. Gaunt, Pleydell v. Pleydell, Nichols v. Hooper, 1 P. W., is that they import a general indefinite failure of issue." He adds, " this rule, however, admits of two exceptions, the first where the phrase is, ‘ leaving no issue,’ with respect to which the settled doctrine is, that applied to real estate it means an indefinite failure of issue, but in reference to personal estate it imports a failure of issue at the death. Forth v. Chapman is the leading authority for this distinction, but it has been confirmed by a long line of subsequent decisions; " and he refers to many cases which on examination will be found not to support the proposition. Amongst them is Walter v. Drew, Agar v. Agar, Wollen v. Andrews, and others, which show that " leaving" makes no difference. Lord Kenyon, in Porter v. Bradley, denied the soundness of this distinction, as did Lord Thurlow in Boggs v. Beasley, and Mr. Jarman, though an advocate for the distinction, admits, at p. 307 top 427 marg., that the difference has been much narrowed by the later decisions. The decisions which proceeded upon this distinction in England and in Virginia were never received with favor by the profession, and it is not a little remarkable that the earlier and later cases, in both countries, either ignore or deny the soundness of the distinction. Judge Lomax, 3 Lomax Dig. 434 top 308 marg., says of it: " The rule of decision first intimated by Roane, J., in Higginbotham v. Rucker, in 1800, and repeated in several cases following in rapid succession down to Didlake v. Hooper, in 1820, was brought under reconsideration in Griffith v. Thompson, in 1829, and was entirely overruled." Carr and Green, Js., in Griffith v. Thompson, expressly disapproving Timberlake v. Graves, & c., held that the principles governing the decisions in Bells v. Gillespie, & c., applied to that case, where the subject was personalty, and Coalter, J., used this pointed language: " As the executory bequest of the personal estate, was limited over in the same words with the executory devise of the real, and was intended to take effect at the same time, upon the same contingency, upon the same failure of issue, the executory bequest of the personal subject was also ineffectual." The rule re-established in Griffith v. Thompson has been followed in Callava v. Pope, 3 Leigh 103; Deane v. Hansford, Nowlin v. Winfree, and Moore v. Brooks, ubi supra, all cases of personalty.
That the use of the word lend makes no difference in the construction is shown by various cases. A loan for life and a gift for life amount to the same thing. Williamson v. Ledbetter, Deane v. Hansford, Callis v. Kemp, and others, ubi supra.
In addition to the various cases above referred to, showing that the use of the word " children" makes no difference in the construction, where it is necessary to give the ancestor an estate tail in order to give effect to the paramount intent of admitting all the issue, I beg to refer to 2 Fearne 268, and Jones v. Davies, 4 Bar. and Adol. 43, there stated, which is very much like the case at bar; 2 Fearne 219, § 436, and remarks of Green, J., in Bells v. Gillespie, 5 Rand. 273, 287, and Lord Mansfield, Davie v. Stevens, 1 Doug. 321-4.
There is still another view which makes it imperative that the construction for which we contend should be placed on this will. " All limitations and executory interests, except those in remainder after, or engrafted on an estate tail, must be so limited that from the very first moment of their limitation, it may be said that they will necessarily vest, in right, if at all, within the period occupied by the life or lives of a person or persons in being, and twenty-one years and ten months thereafter. And it is not enough that the limitation may take effect, within a life or lives in being, and twenty-one years afterwards; or that in the events which have happened, it would take effect within that period, though under other circumstances it might not; it must have been so limited that from the first moment of its creation, it could be said, that it must necessarily vest, if at all, within one of the periods mentioned. And hence it follows that real or personal estate cannot be limited to the children of a person who is not in esse at the date of the will, so as to enable such children to take as purchasers, even though their parents may happen to be born before the death of the testator, unless the testator expressly limits the property to the children of a person who shall be born in his, the testator's, lifetime." 2 Fearne; Smith's Original View, part III, ch. 4, § 1 and 2, pp. 391-2; 1 Jarman 254 top 220 marg.; 1 Leigh 362 top 329 marg.; Carr, J. Griffith v. Thompson. And this rule applies, not only to executory devises and bequests, but to all contingent remainders, except those engrafted on an estate tail. 1 Jarm. 258 top 225-6 marg. 2 Jarm. 515 top 728 marg., 519 top 734 marg. And it is thus seen that the bare possibility, potentia remotissima (no matter how great the improbability), of the occurrence of events, subsequent to the date of the will, which would have let in objects beyond the perpetuity line, or would have postponed the vesting, in interest, beyond the period mentioned, is sufficient to defeat the limitations. 1 Jarman 263 top, where he says, " in applying this rule regard is had to possible not actual events."
Now the land given to the testator's daughter Sally, is " to be possessed by her and any husband she may have, on the same terms and conditions as Nancy Perry's." Putting out of view all ideas of an estate tail, and conceding that the devise to Sally is to be construed as if the testator had used in making it the same language employed in making the devise to Nancy and her children, & c., and it must then be conceded that Sally's husband, had she married, would have acquired a contingent life estate in the land; contingent upon his surviving her, and remaining her widower till his death. She was at the date of the will quite a young girl; not more than 10 or 11 years old. The will is dated in 1807, and was probated in 1810. Sally died in 1857, being about 61 years old, fifty years after the making of the will, and forty-seven after the testator's death. It was, therefore, at the date of the devise, and even at the death of the testator, if not very probable, yet by no means impossible, that Sally should marry a man, who was not in esse, at the date of the will or death of testator. It was not impossible that she should have children by such marriage. It was not impossible that she should die leaving such husband and children behind her; and that he should remain single for the balance of his life, and after surviving her for a period longer than twenty-one years, that he should die leaving the children surviving him. It will not do to argue from the events that have occurred, nor to say that the occurence of those supposed was extremely improbable. The first would be, in the words of Lord Brougham in construing Lord Vere's will, quoted by Jarman, vol. 1, 266 top 239 marg., " to rely upon an accident," and the second assumes that the application of the rule depends upon the probability or improbability of the occurrence of the hypothecated events. The same argument was attempted in Jee v. Audley, stated 1 Jarman 276-7 top 254-5-6 marg., where the validity of the limitation depended on the question, whether John Jee and Elizabeth his wife would have any daughters after the date of the will, or death of testator; and it was contended, " that there was no real possibility of their having children after testator's death, as they were then seventy years old. " But Sir Lloyd Kenyon said, " the general principles which apply to this case are not disputed; limitations of personal estate are void, unless they necessarily vest, if at all, within a life or lives in being and twenty-one years and nine or ten months afterwards. This has been sanctioned by the opinions of judges of all times, from the time of the duke of Norfolk's case to the present; it is grown reverend by age and is not now to be broken in upon. I am desired to do in this case something which I do not feel myself at liberty to do, namely, to suppose it impossible for persons at so advanced an age as John and Elizabeth Jee to have children; but if this can be done in one case, it may in another, and it is a very dangerous experiment, and introductive of the greatest inconvenience, to give a latitude to such sort of conjecture. Another thing pressed on me is, to decide upon the events which have happened; but I cannot do this without overturning very many cases. The single question before me is, not whether the limitation is good in the events which have happened, but whether it was good in its creation; and if it was not I cannot make it so. Then must the limitation, if at all, necessarily take place within the limits prescribed by law?" And after stating the case he answered, " most certainly not; because John and Elizabeth Jee might have children born ten years after the testator's death, and then Mary Hall might die without issue fifty years afterwards; in which case it would transgress the rule prescribed." And so in our case the question propounded by Sir Lloyd must receive the same answer. If Sally is to be confined to a life estate; if the devise gave her an estate for life, with contingent remainder for life to any husband she might have, with contingent remainder for life, or in fee, to her children who should survive her husband, as in the case above hypothecated; and with a substitutional or alternative remainder for life or in fee to testator's children, then all these remainders are void; because in the events supposed the vesting in interest would be postponed beyond the limits prescribed by law.
It will not do to say that in the case supposed the children of Sally living at her death would then be ascertained; for some of them might die in the lifetime of the surviving husband, and those only could take who were living at his death. If none were living then, then the remainder to the testator's children would, if not void, take effect. Both the remainders continue contingent up to the death of the husband. Then, and not till then, could it be ascertained who should take. Nor will it do to argue, that as the limitation to the testator's children is to them simply without words of inheritance, that therefore such only of them as should survive the husband could take; and as they were all in esse at the testator's death or in ten months afterwards, it may be said that the remainder to them must vest, if at all, within the prescribed period. The case of Griffith v. Thompson, ubi supra, furnishes a complete answer to this argument. Said Green J. in that case, p. 372 top, " when a preceding limitation is too remote, all that succeed it, even although limited to take effect in good time, are defeated. Thus in Proctor v. Bishop of Bath and Wells, 2 H. Blacks. R. 358, a devise to the first or other son of T. P. (he having none), that should be bred a clergyman and be in holy orders, and to his heirs and assigns; but if T. P. shall have no such son, then to his grandson T. M. and his heirs. T. P. died without ever having had a son; and it was held that the first limitation over to that son if he had one was too remote, as none could take holy orders until the age of twenty-four, and as T. P. might have a son born a short time before his death, who might take holy orders at the age of twenty-four, which would be beyond the fixed limits of executory devises; that the devise over was, consequently, void also. The same principle is affirmed in Chatham v. Tothill, 7 Bro. P. C. 453, Tomlin's edi." The limitation to Sally's children in the case supposed is too remote, because her husband, born after testator's death, might have survived her twenty-two years; and that limitation being void, the limitation to testator's children is void also. 1 Jarm. 268 top 242 marg., 2 Fearne 414.
If those children of Sally could take the land in no other way than by purchase under their grandfather's will, they could not therefore take it at all, but would be disinherited, notwithstanding the clear intent of their grandfather in their favor. How then? Are the intentions of the testator in favor of his daughter's issue to be altogether frustrated? By no means; but the court " will sacrifice his minor intent that the grandchildren should take by purchase, because it is contrary to the rule against perpetuities, but will, nevertheless, under the doctrine of approximation, or cypres, give effect to his paramount intent, that all the issue of his daughter should take, by giving an estate tail to such daughter; so as to enable the grandchildren to take derivatively through the daughter, though they cannot be allowed to take in the particular mode pointed out by the testator." For the word children will be construed a word of limitation, in cases where, but for the rule against perpetuities, it would be construed a word of purchase. 2 Fearne; Smith's Orig. View, p. 264, part II, ch. 14, and rule 6, on preceding page; 1 Fearne 203-8, notes; 1 Jarman 280-1 top 261-2 marg.
If the cypres doctrine cannot avail to give Sally an estate tail in the land, the principles and authorities last adverted to show that she acquired the absolute property in the personalty. At common law no remainder could be limited after a life estate given in personalty. " As to it," to use the language of Judge Carr in Griffith v. Thompson, 1 Leigh 362, " a gift for an hour was a gift forever; but this has long been changed; and it is laid down by Mr. Fearne, as settled by numerous decisions, that there may be as well an executory bequest of personal as an executory devise of real estate. They are governed, too, by the same general rules. Thus in either case, the devise must be such, that in the very nature of the limitation it must vest within twenty-one years after a life or lives in being; if more remote, it is void in its creation. And the question whether the contingency be too remote, depends on the construction of the will at the time of making, and cannot be influenced by after events. The possibility, at the creation of an executory devise, that the event on which its existence depends, may exceed the prescribed limits, vitiates it from the very beginning." But if the remainder limited be not good, if it be void for remoteness or other cause, the original rule still prevails, and the estate of the first taker becomes absolute. 4 Bacon's Abridg., title Remainder and Reversion, p. 294 old edition; 11 Leigh 403 London v. Turner; 1 Fearne 487. Fearne says, " for though it seems, that whenever a term is devised to one for a day, or an hour, it is held to be a devise of the whole term, if the devise over be void, and it appears to be the intention of the testator to dispose of the whole from his executors; yet, if such intention does not appear, then it has been held, that a limitation of a term to one for life does not vest the whole so absolutely in him as to be at his disposal, but leaves a possibility of reversion in the executors of the testator." Taking Fearne's statement of the law to be correct, and it is stated more strongly for the appellants in the other authorities cited, and still Sally acquired the absolute property in the slaves; for she is not expressly confined to a life estate, and if she was, still nothing can be more manifest in the whole will, than that the testator intended to dispose of the whole property from his executors.
It would be conceded, I apprehend, that if the limitation to Sally's husband for life, had been to a person ascertained not to be in esse at the date of the will, or death of the testator, or in other words, if her prospective husband were, at the time, ascertained to be a person not then in being, then the limitation to her children after the death of such husband would be too remote; for he might survive her more than twenty-one years, and the prescribed limits for the vesting in her children be thus transcended. But there is no difference in principle and authority between the case where the person to whom the prior limitation for life is made is ascertained not to be in esse, and the case where it can only be said that he may not be in esse at the death of the testator. It is sufficient if by possibility he may not be in esse at the death of the testator; and the rule applies if it cannot at the date of the will be asserted that he will ex necessitate be in esse at the death of the testator. Thus in the case of Proctor v. Bishop of Bath and Wells, it was not certain that the first son of Thomas Proctor would not be born in the lifetime of the testator, and be bred a clergyman; but it was possible that he might not be so born, and if so born, that he might not be bred a clergyman; and so as to the second or other son. If indeed the first son had been living at the date of the will and death of the testator, and had lived to be bred a clergyman and take holy orders, yet as he might not be bred a clergyman and take holy orders, and thus acquire the qualification necessary to entitle him to the gift, and as in such case, the " other son," who might acquire that qualification, might be born after the testator's death, therefore the devise was held to be void. And the limitation over to T. M., his heirs and assigns, was adjudged to be void also, the court observing, " that there was no instance of a limitation after a prior devise, which was void for the contingency's being too remote, being let in to take effect." 1 Jarman 269 top 243-4 marg. In a note to Jarman, Perkins, his annotator, says, in this case " there was only a possibility of the rule of law being transgressed, as T. P. might have had a son who took orders in his own lifetime, or even in the lifetime of the testator." And thus if Sally had actually married in the lifetime of the testator, yet as the gift is to any husband she may have, and her first husband might have died, and she taken another, who was not in esse at the testator's death, the limitations would still be void. In the case upon Lord Vere's will the bequest was to testator's wife and son A. B. for life, and upon the decease of survivor, to such " person as should from time to time be Lord Vere; " and at the death of Lord Vere the title descended to his son, the legatee for life, upon whose decease it descended to his son, the testator's grandson, who was also living at the testator's death, and upon the death of the grandson it descended to testator's great grandson, who was born after testator's death. The chief struggle was between the personal representatives of the grandson and those of the great grandson. As the first was born in testator's lifetime, it was clear, he might have been made legatee for life with remainder absolutely to the person next in succession, and the question therefore was, whether the will authorized such a construction. Sir J. Leach, V. C., decided in the affirmative. But this decision was reversed in the House of Lords, Lord Brougham remarking inter alia, " that the person who secondly after the death of testator became Lord Vere, the grandson, was in esse at the date of the will; but whether he would take, or whether he would be Lord Vere, was at the time uncertain. The next life estate, after those named in the will, was not to the person by name, but to the Lord Vere, whoever he might be. To argue from the fact that the person was in esse at the date of the will who became Lord Vere, is to rely upon an accident. The event might have been otherwise. He would not ex necessitate answer the description within the allowed period. A limitation, to be supported, must be definite and certain to the man or to the peer as an individual." And so even the second limitation to the grandson, after the first to the son, was not supported, though both were in esse at date of will; it not being certain that the grandson would ever become Lord Vere, and it being uncertain whether the person who should next become Lord Vere, would be capable of taking at the death of the son, or within twenty-one years and a fraction thereafter.
Suppose the limitation here had been to Sally for her life, remainder to such son of A. B. as should become her husband, for life, and at the death of survivor, to be divided among their children then living, if any; and if none, then to be equally divided among all testator's children; and suppose that A. B. had a son living at the date of will and death of testator, but that son did not marry Sally; and he had another son born after testator's death who did marry her, and had children by her; and Sally then died, leaving that husband and those children surviving her; and he having survived her more than twenty-one years died, leaving them surviving him; could there be a doubt, in the face of the authorities cited, that those children could not take as purchasers, the vesting being postponed beyond the prescribed period? And is there any difference, in substance, between the limitations supposed and the limitations in the testator's will?
That it makes no difference that the object of the prior devise, held to be void for remoteness, never came into existence, with reference to its effect on any ulterior devise, is shown by authorities already cited; and Jarman, 1 vol., p. 268 top 242 marg., lays it down as a rule not to be questioned, " that where a devise is void for remoteness, all limitations ulterior to or expectant on such remote devise, are void also, though the object of the prior devise should never come into existence." And Mr. Smith, in his Original View, 2 Fearne, p. 414, part III, ch. 4, § iii, lays down certain propositions connected with the doctrine of remoteness, the 2nd of which is: " Where a limitation is void for remoteness, a limitation in remainder, after it, is not accelerated, but is also void." Proctor v. Bishop of Bath and Wells, is a conclusive authority for this proposition.
Mr. Smith, at same page, lays down another proposition which is peculiarly applicable to the bequest of the slave and future increase, if the effect of that bequest is to be governed by the construction presently suggested; which proposition is in these words: " Where a testator first makes a gift in terms which would carry the absolute interest in chattels, and then proceeds to restrict it to an estate for life, adding a limitation over which is void for remoteness; the entire interest, as conferred by the original gift, remains unaffected by the subsequent attempt at restriction." Now the bequest of the slave Phœ be and her future increase, under the 11th clause, is at first made in such terms as would carry the absolute interest. The testator certainly designed, by this clause, to dispose of his whole interest not only in Phœ be, but in her future increase. He first lends her and her future increase to his daughter Sally, and then proceeds in the same clause, to add a phrase: " to be possessed by her, and upon the same terms and conditions as she will hold her land." And it is said that this modifying phrase confined her to a life estate only, because it is necessary in order to ascertain the quantity of interest intended to be given to her, and to others besides her, to look to the devise of the land, and to read this clause in the same way, and give it the same construction, as if the testator had, in making the bequest, used the same language, and made the same limitations, in express terms, that are found in the clause making the devise of the land to her and to Nancy Perry. Concede this to be proper, and, I submit, it has been shown, that the limitations attempted to be made, being void for remoteness, the interest and estate of Sally became absolute.
But suppose it be impracticable, under rules of construction, to imply, from the phrase " to be possessed by her, and upon the same terms and conditions as she will hold her land," limitations not only to her for life, but to any husband she may have for his life, and at the death of the survivor, then to her children, if she has any; and if none, then to all testator's children. Suppose, I say, it be impracticable, under the rules of law, to imply and supply all (and if not all then certainly not any) of these limitations, then what is the consequence? It is, I emphatically answer this, that the attempted modification or restriction upon the interest or estate, first limited to Sally Stone, must fail and be of no effect, and that interest and estate remains absolute and unrestricted.
Can these limitations be implied and supplied by force of the aforesaid phrase? Is not the effect of that phrase rather to annex to the gift to Sally conditions, than to superadd limitations?
But in any and every aspect of it, can this phrase make so strong a case for confining Sally to a life estate, as was furnished by the express language in many of the cases above stated. Take the case of Mellish v. Mellish: " Hamil's to go to my daughter Catharine as follows: in case she marries and has a son to go to that son; in case she has more than one daughter at her husband's or her death, and no son, to go to the eldest daughter; but in case she has but one daughter, or no child at that time, I desire it may go to my brother Wm. Mellish." So here: " Phœ be and her future increase to go to my daughter Sally, to be possessed by her upon the same terms and conditions as she will hold her land, viz: in case she marries, to go to her husband for life; in case she has more than one child at her husband's or her death, to be equally divided between her children; but in case she has no child at that time, I desire Phœ be and her increase may go to my children to be equally divided among them." Hamil's was real estate, and the bequest now under consideration is of personalty. But still as to this the objection because of remoteness applies in all its force. The vesting may be postponed till the death of the husband, and that may be more than twenty-one years after a life in being. But as to the land the same considerations apply. Can the devise to Sally and any husband she may have, of land, to be possessed upon the same terms and conditions as Nancy Perry's land is to be possessed by her, amount to a devise to her children, if she has any, and if none, then to all the testator's children? Can a devise to A. of land, to be possessed as B. by a precedent clause will possess certain other land devised to him, be held to give the property to C. and D., who are not named at all? Can the court, by force of the expression, " to be possessed," & c. be authorized to imply or interpolate limitations to Sally's children, if any, and if none, to the testator's children? Will not this be going further in supplying words than is admissible? Is not the rule on this subject well laid down in Lynch v. Hill, 6 Munf. 114, where it is held, " that in supplying words in a will, it is the most correct course to supply only such as it is evident the testator intended to use, and not such also as would be necessary to effectuate the supposed intention of the testator?" And is it not evident here that the testator intended to use only the words which he did use? The others were omitted, not by inadvertence, but from design. Yet it is equally evident from the whole will that the testator intended the issue of Sally, if any, to take the land set apart for her, forever, and intended by the clause making the devise to her, to dispose of his whole interest in the land.
Yet no estate is, in express terms, given to her issue, and they cannot, as purchasers, take even for life. Is not the case then brought still more strongly within the influence of the doctrine of approximation or cypres, and of that general principle so often adverted to, that in the construction of wills the paramount intent of the testator shall prevail? This principle, with reference to this subject, is tersely stated by Judge Green, 5 Rand. 287. Says he: " Estates tail were unknown to the common law. They were created by the statute de donis conditionalibus. In executing this law it was the duty of the court to ascertain from the whole will taken together, whether the intent of the testator was to provide for the issue of the first taker; and if so, without regard to the particular estates given in terms by the will, to hold that the first taker had an estate tail, if the issue could not otherwise be provided for according to the intention of the testator." Or as expressed by Judge Carr in Thomason v. Andersons: " Did the testator mean to provide for his daughter and her issue indefinitely? If so, this is an estate tail, no matter how he may have expressed himself, or with what conditions or limitations he may have attempted to clog it." The testator intended that the daughter should take such an estate in the property given her by the will, as would be transmissible to her issue, and this must be an estate tail or a fee. But what more, at most, can be implied from the expression, " same terms and conditions as Nancy Perry's," than such gifts as were expressly made in Mellish v. Mellish? In case she marries, and has children, to such children, if any living at her death; in case she has none, then over.
These considerations apply with still greater force to the bequest of the slave and future increase under the 11th clause. The daughters are not expressly confined to life estates. The remainders intended to be limited by the phrase, to be possessed by them upon the same terms and conditions as they will hold their lands, are ineffectual, because of the want of sufficient words. Being ineffectual, the interests of the daughters become absolute.
If the daughter Sally did not take an estate tail in the land, and the absolute property in the slaves, what was their proper destination upon her death? The court below inclined to the opinion that they passed to the testator's wife and children, under the 14th clause of the will. Did the testator intend to embrace the land and slaves given to his daughters for life, in the 14th clause? The fact that he gives the property, intended to be embraced by that clause, to his wife for life or widowhood, is sufficient to show that he did not intend the property before given to his daughters for life, to pass under it. But if the further opinion of that court be correct, " that the land and slaves given to Sally Stone for life, passed over to the testator's children under the 6th, 10th and 11th clauses of his will," which of his children are to take? Those living at the testator's death, and their representatives, or those only who were living at Sally's death? Unless the statute of 1785 can be used to give the testator's children the fee, they would take only for life, and the testator would be intestate as to the reversion in fee. If all the testator's children living at his death are held to take under the 6th, 10th and 11th clauses, and to take the fee, and absolute property, then the representatives of Sally, the life tenant, are entitled to her due share.
A child who is made a legatee for life, is not thereby incapacitated from claiming under a bequest of the ulterior interest to the testator's children, living at his decease. 2 Jarman 55 top, 74 marg., and note (f), referring to Jennings v. Newman, 3 Jar. 748. If the testator died intestate as to the reversion, Sally's representatives are still entitled to her share. But several of the testator's children having survived him, afterwards, and in Sally's lifetime, died without issue and intestate. Sally's representatives are entitled to her share of their shares. In the view taken of the questions by the court below, itself, then, the plaintiffs have an interest in the proceeds of the land and slaves, and their bill should not have been dismissed.
But I confidently and respectfully conclude that Sally Stone acquired the absolute interest in the personalty and an estate tail in the land. An examination of the statute of 1819, abolishing the rule in Shelly's case, 1 Rev. C. 369, § 26, will show that in the opinion of the legislature, where a contingent limitation was made dependent upon the dying of any person without children, the word children was regularly held by the courts to be a word of limitation and not of purchase; and Lord Mansfield, one of the most, if not the most, distinguished ornament of the English bench, frequently and most emphatically in some cases, held " children" in a will, where none were in existence at the date of it, to be synonymous with " issue" and " heirs of the body." Witness his remarks in Hodges v. Middleton, and in Davie v. Stevens, 1 Douglas 321-4. In the latter case the devise was, " I give and bequeath to my son Wm. Stevens, when he shall accomplish the full age of twenty-one years, the fee simple and inheritance of Lower Shelstone, to him and his child or children forever." William was about fifteen and lived to twenty-one, and died leaving several children. The question was, whether the devise conferred on William a fee or fee tail. Lord Mansfield, after argument said, " I had a mind to see whether ingenuity could raise a doubt on one side, or supply an argument on the other, to make the case plainer than it is on the face of it. If the testator had used the words, " all his estate," " inheritance" or " forever," and had stopped there, the fee simple would have passed. But the words " child " or " children " are to the full as restrictive, as if he had said, " and if my son die without heirs of his body; " and the court unanimously held that William acquired an estate tail and not the fee simple.
Now it caunot be denied that any word which will have the effect of cutting down a fee to a fee tail, will have the effect of enlarging a life estate to a fee tail, where the intention to provide for all the issue of the first taker may be collected from the whole will. Indeed it is shown by many authorities, above cited, that the courts more readily yield to the restricted construction when the fee is given to the ancestor, than when a life estate only is in express terms given to him; the danger of disinheriting some of the issue, being much greater in the latter case, if a restricted construction be adopted.
Royall, for the appellees.
The court cannot enquire whether this would have been an estate tail at common law or not. It has been settled by repeated decisions of this court, that these particular words in a will give only an estate for life, so that it is no longer open to question in Virginia. Smith v. Chapman, 1 Hen. & Munf. 240; Warners v. Mason and wife, 5 Munf. 242; Henderson v. Saunders, Sand's Quar. Law Review for April 1860.
But this will would not have made an estate tail by the common law. The argument on the other side is, that it was Caleb Stone's intention to provide for Sally's descendants as long as she should have any. But where is this intention to be found expressed in the will? It may be conjectured that Caleb did not wish his property to leave Sally's family while she should have progeny. She was his daughter, and from the influences which are known to operate upon the minds of men, it would seem eminently probable that he wished that daughter and her descendants to enjoy the provision he was making for her, as long as her descendants continued, rather than any other persons. But he has not said so. Certain terms in the law have fixed meanings, and if testators use those terms, they must expect the law to fix that intention upon them which those terms indicate, irrespective of what may have been in their minds. Amongst those terms is the word " children," which the law conclusively presumes to mean children in the first degree, unless it be necessary to presume otherwise, to effect a plain, manifest and certain intent. The court must, therefore, read the will as it finds it written, without reference to theories, probabilities or conjecture, and in that it is nowhere said, either directly or by implication, that Sally's offspring, further than the first degree, is to be provided for.
The intention which the law fixes upon this testator, as learned from the legal interpretation of the words that he has used, is to give it to Sally for life, and then, as he has not attached words of inheritance to the gift to her children, to them for life; making no further disposition, and leaving the property at the death of her children to be governed by whatever rules of law might apply. Such a disposition it was perfectly competent for him to make, and it has been decided as far back as the reign of queen Elizabeth, that these particular words make that particular disposition, and no estate tail.
In Wild's case, 6 Coke 16, it was resolved that, if land be devised to husband and wife, and after their decease to their children, or the remainder to their children, then, though they have no children at the time, the husband and wife shall take for life, and the children the remainder as purchasers. Some slurs have been thrown on this resolution, in Wild's case, which I pass by unnoticed, leaving it to the ample and complete vindication of my learned senior, Mr. Green. See also Buffar v. Bradford, 2 Atk. R. 220; Merest v. James, 1 Brod. & Bing. 484, 5 Eng. C. L. R. 156.
The line of distinction in reference to words which make an entail and those which do not, is drawn when it is determined whether there is a limitation over upon an indefinite failure of issue, or a like limitation upon a fixed and definite failure. If the former, it is at once settled that there is an entail; if the latter, it is clear there is not. Now, language could not make it clearer than it is, that the limitation over here to Caleb's children, is in case of Sally's death without children living at her death, or the death of children she might leave, before the death of her husband. And the appellants assume the whole case when they declare the limitation over to be upon an indefinite failure of issue. This assumption is nothing but another manifestation of the mirage of intention which the testator's supposed kindness of feeling for his daughter has shaped itself into.
But, say the appellants, Sally's husband might have been unborn at the time of the devise, and as the remainder to her children is not to take effect till his death, which might have been more than twenty-one years after her death, it is void for remoteness, and this likewise destroys the remainder over to the testator's children, because, one remainder being void, all subsequent ones are. So, on the construction cy pres, Sally must take an estate tail. This proposition will be discussed in two aspects: first, as to whether the remainder to Sally's children being void, she should take an estate tail; second, whether the remainder to her children being void, the remainder over to the testator's children is void also.
As to the construction cy pres: It is well settled that this construction is to be narrowed rather than enlarged, and will not be applied except in cases perfectly analogous to those where it has been already made. Lewis on Perp. marg. 454. What is the construction cy pres? This construction is made where the testator has manifestly two intents, which cannot possibly stand together. As where he devises to a person for life, remainder to his unborn son for life, as a purchaser, remainder to the issue of that unborn son, and their heirs indefinitely. Here it is plain, and cannot be doubted, that he wishes the descendants of the first taker to have the property in perpetuum, but they cannot have it in the way that he has designated, because its vesting in the children of the unborn son would be postponed for more than a life in being and twenty-one years. In such cases the courts, to effectuate the testator's manifest intent to provide for the issue, have sometimes given the first taker an estate tail, the only way in which it could be done. Lewis on Perp. 426 et seq. But this case does not come within the construction, because the radical essential, the intention to provide for descendants indefinitely, does not appear. It is only conjectured from the near relationship of the parties.
The construction cy pres will certainly, however, never be applied to personal property. 1 Fearne Con. Rem. 205, 3rd Am. ed.; Lewis on Perp. marg. 485. But granting for the sake of the argument that the remainder to Sally's children is void for remoteness, why give Sally an estate tail? One argument of the appellants for an estate tail is, that Sally might have died with one child, and fifty grandchildren, children of other of her children deceased, and yet if children in this will is to be read as a word of purchase, that one child would take all to the exclusion of the others.
This, then, is exactly what would occur if Sally is given an estate tail. Instead of having fifty grandchildren excluded, we might then have a dozen children excluded; for if Sally should leave thirteen sons, the oldest would take all, and the other twelve would go begging. If anything is certain upon the face of the will, it is that all of Sally's children should have the property equally. It is perfectly certain that he did not wish one of her children to have it in exclusion of all the others. If the remainder is too remote, the property should rather revert to the testator's heirs.
It is argued that personal property will not revert; that a limitation over of personal property which is void for remoteness, gives the entire interest to the first taker. This is not law. Personal property will revert under such circumstances, in like manner as real property. Keyes on Chattels, sects. 276, 280. Neither will the expression of an intention to dispose of it from executors prevent a reverter. There must be an effectual and valid disposition from them. Id. sects. 281, 282. But if the remainder to Sally's children be void, let that over to Caleb's take effect; though it is argued that one being void, all are, and the case of Proctor v. Bishop of Bath & Wells, 2 H. Bl. R. 358, is relied on for this. The cases are entirely different. The devise over in that case was only to take effect in case a single and particular event happened, which was too remote. In that case Mary Proctor devised unto the first or other son of Thos. Proctor that should be bred a clergyman, and be in holy orders; but in case Thos. Proctor should have no such son, then over. The devise to Thos. Proctor's son was void, because he might have had no son until the hour before his death, and that son could not take orders, by the canons of the church, until he should be twenty-three. It was then contended that the devise over should take effect. But it was held that it should not, because it was only to take effect in case Thos. Proctor had no such son; that is, a son in holy orders; and that could not be determined until twenty-three years after his death. The devise was not, in case Thos. Proctor have no son, but in case he have no such son. It is true that where one remainder succeeds another and is only to take effect after the first is expended, if the first be void, the second is likewise. But where one is created as a substitute for another, to take effect in case the first fails, then if the first be void for remoteness, the second will take effect, if limited upon an event not too remote. Farther, if a remainder be substitutional, and limited to take place upon either of two events which shall first occur, one being good and the other bad, if the event which is good occur, the remainder will vest, and the court will not enquire whether the other event, which did not happen, was too remote or not. This was the case in Longhead v. Phelps, 2 W. Blacks. R. 704, which is the case that must govern this question. See also Goring v. Howard, 16 Sim. R. 395; Monypenny v. Dering, 15 Law & Eq. R. 551.
Now it is plain that Caleb Stone intended the remainder to his own children to vest in interest, either upon his daughter leaving children who should subsequently die during the life of any husband who might survive her, or upon her dying without children living at the time of her death. The first of these may have been too remote; the second was good. This must be so, otherwise his will would be absurd. What could prompt him to give the property over to his own children in case Sally should have children who should subsequently die during the life of her surviving husband, but to say that they should not have it in case Sally never had children?
His will must be read thus: I give the property over to my children in case Sally has children who survive her, but die before her husband, or in case she never has children. In the latter event it is to vest in interest in them, at her death, to await enjoyment till the death of her surviving husband. The contingency not too remote having happened, the court will not enquire whether the other was too remote or not, as in Longhead v. Phelps, supra.
Nor is it necessary that it should be expressed in the will in words that the gift depends upon either of two contingencies. It is sufficient if it be necessarily implied from the nature of things. 1 Jarm. on Wills, 3d English ed. 268, 269, 270; 3 Atk. R. 315; Fearne Con. Rem. 513.
But the remainder to Sally's children is good, because limited to take effect within a life in being. Norris v. Johnston, 17 Gratt. 8. The language of the will makes it perfectly clear that it was to vest in interest in the children, at Sally's death, to await enjoyment till the death of her husband. A remainder need not take effect in possession within a life in being and twenty-one years. It is sufficient if it vest in interest within that time. A remainder may be limited to one for life, remainder to his unborn son for life, remainder to the unborn son of that unborn son, provided the last remainder be limited to vest in interest within a life in being and twenty-one years, although it may have to wait for possession till the death of the unborn son. Lewis on Perp. 409, 420, § 3. At Sally's death it became certain what children were to take the remainder, and it would vest then, to await enjoyment till the death of the husband. The objection that Sally might have left grandchildren, but no children, and that these grandchildren could not take if children is to be read a word of purchase, is effectually disposed of by Judge Moncure in Henderson v. Saunders, ubi supra. He has so willed it, and so let it be.
Wm. Green, on the same side.
I. To support their pretensions, advanced in the bill, appellants must maintain that Sally Stone took, under her father's will, an interest devisable and bequeathable in the land and in the slaves it gave her. Accordingly this is attempted by counsel for them, under distinct heads, in divers aspects.
1. As to the land: First, on the supposition that she took therein an estate no way distinguishable from that which Nancy Perry took in the land given her under the same will.
Respecting this, it cannot be disputed that the testator intended to give her no more than an estate during her own life and, at most, in addition thereto, contingently, during the widowerhood of one other person. Counsel opposite does not hesitate to concede this. But he strives to maintain that nevertheless the testator's will has, against his wish, a quite contrary effect; so as to give her an absolute fee simple; and yet not what may be called a natural fee simple, which would still permit his intention in favour of his other children in case this daughter should have none, to prevail, by means of an executory limitation that, grafted upon such a fee simple, would be valid; but an artificial fee simple, the product of a legal metamorphosis from an artificial fee tail: the sole means, within the compass of possibility, whereby this utter frustration of the testator's unmistakeable intention could be brought about--and to what end? In order that appellants may get, under general words in Sally Stone's will, what she never dreamed it was in her power to give.
As a first step towards accomplishing this result, a great many reported decisions have been cited, to prove that, despite the plainest intention to give to the first taker no more than a life estate, nevertheless he may take an estate tail: And certainly, wherever the law " aforetime" remains in this respect unaltered, no position is more indubitable. But then, even under that aforetime law, this never happened except where the testator had (or, what practically was equivalent, was held to have) another and a paramount intention, not legally compatible with the first taker's having a mere life estate; so that both his intentions, or (to speak perhaps more accurately) both parts of his one intention, could not by law stand together. Under such circumstances, that which he presumably considered the less important was displaced: in order that what, it was supposed, he had more at heart might take place. And all such cases, if I mistake not, may be ranged in two classes, both really depending upon this one principle: First, where, though there was an expressed intention to give to the first taker no more than a life estate, yet, upon the face of the will, or upon it coupled with admissible extraneous evidence, there was an equally clear intention to give a remainder to the heirs of his body or to some description of such heirs; so as to bring the total limitation within the despotic influence of the Rule in Shelley's case: Secondly, where, with such an expressed intention as to the first taker, there was, upon the face of the will, or upon it coupled with such evidence as aforesaid, an equally clear intention that what was given him, expressly for life only, should become another's whenever, in an indefinite future, the first taker's issue or some particular line of such issue should have failed, and not till then; it being thence inferred, that a benefit was intended preferably for such issue, which they could not take unless by vesting in their ancestor (the first taker) an estate tail; whether because there was no direct gift to them by way of remainder; or because, if such gift to them were implied, then the case would come within the range of the Rule in Shelley's case, in like manner as where such gift to them was express, and so this class of cases would become identical with the class first mentioned. Where that Rule still operates, as it does in cases governed by the same law which (as having been the lex temporis ) is alleged by counsel opposite to govern ours, it makes no difference whether it is in the one, or in the other, of these modes that the result is effected.
If there be two such classes, really separate and distinct, then the case of Jesson et al. v. Wright, 2 Bligh. 1, which by counsel opposite is placed in the foreground of his argument, comes within both of them. The decision therein by the House of Lords, which house isthac vice consisted of only Lord Eldon and Lord Redesdale,--overruling the judgment of the King's Bench in the same case, and what Mr. Jarman calls a " long line" of other cases, (2 Jarm. Wills 286-297; see p. 295; )--has established in England, that where there is a devise to W. for life, and after his decease to the heirs of his body, in such shares and proportions as he shall appoint, and, for want of such appointment, to the heirs of his body, share and share alike, as tenants in common, and, if but one child, the whole to such only child, and, for want of such issue, to the heirs of the devisor; there the first taker (W.) has an estate tail: The case being, let me repeat, within both of the classes aforesaid (if in reality there be two), by there being, first, a remainder to the heirs of the body of the first taker, not sufficiently shown, by the context or otherwise, to mean some other, less comprehensive, class of remaindermen, and, secondly, a limitation over upon an indefinite failure of his issue; Lord Redesdale insisting mainly upon the first of these grounds, Lord Eldon mainly upon the second. And, for the purposes of this discussion, it may be conceded that the decision in our Virginia case of Moore v. Brooks, 12 Gratt. 135, professedly following that of the Lords in Jesson v. Wright, has settled, though made only by three judges against two, that where in this state, there is a devise, in the will of a testator who died before 1 Jan. 1820, to his two daughters " to be held by them during their natural lives and no longer, and then equally divided between their heirs lawfully begotten," without any limitation over; there also the respective first takers have an estate tail.
Neither of these decisions has any bearing on our case; because in Caleb Stone's will there is no phrase having even the slightest resemblance (in meaning and effect) to the phrase " heirs of the body" or " heirs lawfully begotten," --which latter has been for centuries held precisely tantamount to the former, ( Church v. Wyatt, Moore 637; Harrington v. Smith, 2 Sid. 41, 42, 43, 73, 74; Barrett v. Beckford, 1 Ves. sen. 521; Nanfan v. Legh, 7 Taunt. 84, 2 Marsh. 107; Mortimer v. Hartley, 6 Welsb. H. & G. 59, 3 Engl. L. & E. Rep. 536; Matthews v. Gardiner, 17 Beav. 257; Good v. Good, 7 Ell. & B. 295, 40 Eng. L. & E. Rep. 212; Com. Dig. tit. Devise, N. 5: Hargr. Co. Litt. 20 b, note 2; Fearn. Posth. 171; 2 Jarm. Wills 233; Hall's lessee v. Vandegrift, 3 Binn. 374; Paddison's lessee v. Flamer, 1 Harr. & McH. 336; 3 Lom. Dig. 296 [[[[[197]; see also Carter v. Tyler, 1 Call 165; ) and was taken in Moore v. Brooks to mean nothing else,--in Caleb Stone's will, I say, there is no such phrase, connected with any gift therein to any of his daughters; nor is there any limitation over upon an indefinite failure of issue of any first taker, as, at a more appropriate place, it will be my particular business to prove: But both those cases are authorities in ours, of high grade, and in favour of appellees; for in each of them one ground, and in one the sole ground, of decision expressly was, that the words employed in the respective wills then sub judice could not be taken as equipollent with the word " children," which in our case is the word used. In the former of them, when it was before the King's Bench, the judges who then sat therein concurred in holding, that the words " " heirs of the body" were sufficiently shown by the context to mean only " " " children," and therefore that the first taker had but a life estate. Doe d. Wright v. Jesson, 5 Maule & S. 95. And although their judgment was reversed, yet that was not upon the ground that this consequence would not have legitimately followed, if the technical words " heirs of the body" could there have been read as " children," but on the contrary with a full admission on every hand that it would,--and all the argumentation of counsel in that case, reproduced by counsel in this, upon the deprecable consequences of reading the former words so as to give them the sense and effect of the latter word, proceeded, not upon a denial, but upon an assertion, that, if the will were so read, those consequences must ensue,--unless counteracted by there being superadded a limitation over upon an indefinite failure of issue of the first taker; which, indeed, would necessarily restore to the phrase used, or insuperably prevent its for a moment losing, in that connexion, its primary legal sense, its technical acceptation. And in the latter (Moore v. Brooks ) the two dissenting judges, though the reasons of their dissent are not reported, must needs have held that, in the will before them, " heirs lawfully begotten" bore the restricted sense of " children," with the consequence of giving to the first takers no more than life estates respectively; which consequence, if the words were to be so read, was admitted distinctly,--not only so, but moreover urged as an argument in support of their refusal so to read them,--by the three judges who composed the majority. 12 Gratt. 144. The point, however, does not rest upon mere admissions or arguments of any counsel or any judges; but more securely reposes upon solemn decisions, both in England and in Virginia, which, subsequently to that of the Lords in Jesson v. Wright, have re-established,--if (contrary to what was always Mr. Jarman's opinion, 2 Pow. Dev. edit. Jarm. 488-492; 2 Jarm. Wills 300-305; ) it had been at all shaken thereby--the rule that even " heirs of the body" may be read, under circumstances, so as to mean " children," and that when so read, those words will give, as this word, when not forced out of its natural signification, gives, to the first taker no more than a life estate. Jordan v. Adams, 6 Comm. Bench N. S. 748, 9 Id. 483; Pryor v. Duncan, 6 Gratt. 27, explained 12 Id. 149, Moore v. Brooks.
From these authorities, of all grades, a conclusion results, a fortiori, which numerous other authorities, level to the precise point, have estahlished; namely, that where, after an estate for life, or for lives,-- expressly,--given to the first taker, a limitation, in the same will, to such first taker's " " children" living at the termination of the particular estate so given him, purports to give each of them, in his or her distinct and several share, an estate descendable from him or her as the root of inheritance, whether to the respective heirs of their bodies, (Sm. Ex. Int. § 479-483; Webster v. Cooper, 14 How. 488; see also Hays v. Hays, 5 Richards. 31; Mandeville v. Carrick, 3 Ridgew. 352, 367-368, Ridgew. L. & S. 485; Hamilton v. West, 10 Ir. Eq. Rep. 75; ) or, as in the sequel will appear more pertinent on the present occasion, to their respective heirs general, (Ginger v. White, Willes 348; North v. Martin, 6 Sim. 266; Lees v. Mosley, 1 Younge & Coll. Exch. R. 589; Greenwood v. Rothwell, 5 Man. & G. 628, 6 Scott's N. R. 670, 6 Beav. 492; Slater v. Dangerfield, 15 Mees. & W. 263; Blanchard v. Brooks, 12 Pick. 47; re Sanders, 4 Paige 293; Miller v. Lynn, 7 Penns. St. Rep. 443; Gernet v. Lynn, 31 Id. 94; Guthrie's Appeal, 37 Id. 9; Chew's Appeal, ibid. 23; Lantz v. Trusler, ibid. 482; Den v. Parker, 12 Ired. 123; Williams v. Beastey, 1 Winst. 102; Doe v. Jackman, 5 Ind. 288; see also Sisson v. Seabury, 1 Sumn. 235; Jones v. Ward, 5 Ired. Eq. Rep. 400: Birthright d. Hall v. Hall, 3 Munf. 536; Shackelford v. Newbill, 2 Patt. & H. 232; ) there such limitation has not the effect of enlarging the first taker's estate, so as to make the children's remainder coalesce therewith, but they will take as purchasers: And this is not varied even where there follows an ultimate limitation over, in default, or for want, of issue, shown by the context to mean " children," of the first taker, 2 Jarm. Wills 372-379; Hayes's Principles for Expounding Dispositions of Real Estate to Ancestor & c. 29-31; see also Tucker v. Baker, 11 Ir. Eq. Rep. 104; S. C. (Baker v. Tucker, ) 3 H. L. C. 106, 2 Engl. L. & E. Rep. 1; Richards v. Davies, 13 Comm. Bench N. S. 69, 861; Wright v. Baury, 7 Cushing 105; Powell v. Board of Domestic Missions, 49 Penns. St. Rep. 46.
But it is insisted by counsel opposite that, if this be so, still, where the limitation after an express life estate to the first taker is such, as would give his children, in the character of purchasers, no more than a life estate, there a different rule must obtain: The contention (if I rightly conceive it) being, that because of the defectiveness of such a limitation, to meet the presumed (certainly not declared or demonstrated ) intention of the devisor in favour of all the posterity proceeding from the first taker, his life estate must be changed into fee tail, by construction, as a necessary means towards, in this respect, accomplishing the testator's intention. And, notwithstanding the devise in question was made loug after the first of January 1787, when the statute of 1785, (12 Hen. Stat. 157,) dispensing with words of inheritance to create a fee simple, took effect, it is insisted further that the limitation therein to the first taker's children must be construed to give them, as purchasers, no larger an estate than for their own lives; because such, before that statute, was the rule of construction, and the lex temporis, under which Caleb Stone both made his will and died, ordained that " every estate in lands which since hath been limited, or hereafter shall be limited, so that, as the law aforetime was, such estate would have been an estate tail, shall be deemed to have been and to continue an estate in fee simple." V. L. 1803, 1814, c. 90, s. 9.--On the latter of these points I waive all contention, since the case of Doe d. See v. Craigen, 8 Leigh 449, wherein President Tucker explicitly succumbed to this court's decisions in the prior cases there (p. 452) cited by him. And I do this the more cheerfully, because, on the former point I conceive the law to be perfectly settled, that a limitation to one for life, with remainder to his children for life, never gave an estate tail to the first taker; does not now give such an estate, where the law still continues in force as it was here " aforetime."
For this I shall go no further back than Wild's case, commonly so-called. And, as there has been a marvellous amount of blundering (I can find no fitter word), about this leading case, even among persons so learned and intelligent as Lord Alvanley and Lord St. Leonards, whose errors are reproduced by counsel opposite, I propose, first of all, to remove out of our way those errors.
The book called Sir Francis Moore's Reports, containing cases which run through one hundred and thirty-five years, and which therefore, however they may have been of his collecting, out of other men's M. S. S., were certainly not all of his own reporting, was first published in 1663, long after his death, (which happened 20 Nov. 1621, Wallace's Reporters, 3rd edit. 36; ) and more than sixty years after the case here in question had been decided; which is reported in that volume, p. 397, pl. 519, by the name of Richardson v. Yardley. So much of the report as is here material, literally translated from the norman-french, or rather the law -french of that time, is as follows: " Hill. 37 Eliz. rot. 1030. In ejectione firmae, the jury found a devise to wife for life, and after to son, and, if he should die without issue, to the child which then was in utero matris, she being far gone with child, and its issues in tail. Item, my will is, if my wife die and my children, without issue of my children living, that then the land shall remain to Richard Wild and his wife, and after their death to their children. The devisor dies, his wife and all his children also die without issue, and Wild and his wife die, having issue: And the question was, whether Wild and his wife had an estate in tail, or that they had only for life, with a remainder by purchase for life to their children born at the time of the devise. And Popham and Gawdy, that it is an estate tail in them. And Clench and Fenner, that [it is] an estate only for life." --In reporting the same case, 6 Rep. 16 b, under the caption " Wild's case, Hil. 41 Eliz. In the King's Bench," Coke says: " Hil. 37 Eliz. in ejectione firmae between Richardson and Yardley, in the King's Bench, on not guilty pleaded, the jury gave a special verdict to this effect. Land was devised to A. for life, the remainder to B. and the heirs of his body, the remainder ‘ to Rowland Wild and his wife, and after their decease to their children, ’ Rowland and his wife then having issue a son and a daughter; and afterwards the devisor died, and after his decease A. died, B. died without issue, Rowland and his wife died, and the son had issue a daughter, and died: If this daughter should have the land or not, was the question; and it consisted only upon the consideration what estate Rowland and his wife had, viz. if they had an estate tail, or an estate for life with remainder to their children for life. And the case, for difficulty, was argued before all the judges of England; and it was resolved, that Rowland and his wife had but an estate for life, with remainder to their children for life, and no estate tail; " (so that the daughter of Rowland's son did not get the land, whatever intention of the testator might be presumed in favour of all the posterity of Rowland:) And then Coke relates, at considerable length, the reasons and resolutions of the judges. Which (it is, for our present purpose, worth noticing,) he published in 1607, the case having been decided only some five, or at most six, years before; almost every judge of England, that had been on the bench when, as he states, the case had been argued before them all, and moreover a large number of serjeants, and barristers, and law-students (of that day, since come to the bar), who must have been at the time well informed, in the main, concerning a case of so much public expectation (in the profession) as this was, being still alive; who very frequently met one another in Westminster Hall and in the temples and inns of court, and elsewhere; and must have been startled, and thereupon compared notes, at any serious misreport of the case in a book of such commanding authority, such universal and immediate perusal among lawyers (in the then, not comparative only, but absolute, paucity of law-books), as each Part of The Reports (published in Coke's lifetime) was from the beginning: Yet this report, though frequently cited, within a few years after its publication, as well as in times more distant, appears to have been never impeached, as incorrect or in any manner misleading, until since and very long after) the publication of Moore's report of the case (if it is his),--which publication assuredly Moore himself never would have permitted, without (at least) a correction of its manifest defectiveness, in not indicating what judgment was at last, or whether any was ever, rendered. But, of very late time, comparatively speaking, some sort of disparagement has been, in consequence of that publication, attempted to be cast on Coke's report, by the two modern law-lords before mentioned. Thus, in Seale v. Barter, 2 Bos. & P. 492-493, Lord Alvanley said: " Wylde's [ Wild's ] case (which is the leading case upon this subject) was cited and relied on. I will shortly state that case as it is reported in 6 Co. 16, and in Moore 397, under the name of Richardson v. Yardley; for though the titles of the cases are different and one is stated to have been in the 41 Eliz. and the other in the 37 Eliz., it is hardly possible to consider them as different cases, especially as the name of Wylde occurs in them both, and the circumstances are so nearly the same; and indeed in some books, where the report in Moore has been cited, it has been said that the same case was better reported in Coke." His lordship then states, with substantial accuracy, the principal case from Coke's account of it; after which he proceeds thus: " But a case was there put as good law, that if A. devise to B. and his children or issues and he hath not any issue at the time of the devise, the same is an estate tail; and a case is cited from Serjeant Bendloes's reports, which was a devise to husband and wife and the men children of their bodies begotten, and it did not appear in the case that they had any issue male at the time of the devise, and therefore it was adjudged that they had an estate tail to them and to the heirs [male] of their bodies. According to the report in Moore, Popham and Gawdy held that Wylde took an estate tail notwithstanding that he had children living at the time of the devise, though Fenner and Clench thought it was only an estate for life. It appears therefore that two of the judges were disposed to think that an estate tail would pass even in a case where children were in esse at the date of the will, and they all agreed that, if no children had been born, it would have been an estate tail. " And on this criticism of Wild's case by Lord Alvanley, indorsed by Lord St. Leonards, (to be sure, in his character of counsel only,) Mr. Pettit relies for overthrowing the credit of Sir Edward Coke's report of that case.
Now, never in my whole reading have I met with any passage, emanating from a respectable source, more remarkable for oscitancy than this is. Besides mistakes in point of expression, not all of which are exhibited in my preceding extract, Lord Alvanley shows that be could not have read Coke's report, or Moore's, with any but the most drowsy sort of attention. He resorts to probable arguments for proving the case in both reports to be the same, notwithstanding the difference of names, though Coke expressly states it to have been between the same parties as Moore does; and notwithstanding the difference of times, though Coke expressly states it to have arisen at the same time and in the manner Moore does: And then, notwithstanding the real difference of dates, to which what is respectively reported by them in regard to judicial sentiment refers, he takes it for granted that the opinions of the four judges in the King's Bench, which alone Moore mentions, are the same which, delivered about four years later, Coke reports of all the judges of England; before whom, he tells us expressly, the case was debated propter difficultatem, meaning (no doubt) on account of that very division in the King's Bench mentioned by Moore,--in conformity with what was a common practice in those days and long before and long after. Witness (besides the text-books, Co. Lit. 71 b --72 a; 4 Inst. 68, 110, 119; 3 Blackst. Comm. 56; 1 Wooddes. 122; 3 Steph. Comm. 418-419; ) Capel's case, 1 Rep. 57 b -61 a, i 62 a ; Shelley's case, Id. 92 b -93 a, 105 b, 106 a ; Chudleigh's case, Id. 117 b -119 b, i 121 ia, i 132 a ; Lord Cromwell's case, 2 Rep. 72 b; Butler & Baker's case, 3 Rep. 25 b -26 a; Knight's case, 5 Rep. 55 a, 56 a; --Calvin's case, 7 Rep. 2 a-b, 28 b; Case of Sutton's Hospital, 10 Rep. 22 a-b, 23 a, i 24 ib; (these two were remarked upon by Coke himself, then chief justice of the King's Bench, in Warrain v. Smith, 3 Bulstr. 146, not quite accurately, supposing that report correct; compare Slade's case, 4 Rep. 92 a, 93 a; )-- Manby v. Scott, 2 Sm. Lead. Cas. 248, 249, 1 Lew. 7, 1 Sid. 109, O. Bridgm. 229, 266; Bainbridge v. Gardiner, Id. 402; Collingwood v. Pace, Id. 410, 416; 1 Sid. 193, 194, 1 Ventr. 413; Atkyns v. Clare, Id. 399, 412: Which cases, with numerous others in this respect similar, show that on such occasions, contrariwise to the practice upon writs of error, the case was considered as not, though the question was, removed; and when the latter had been decided by the judges of all the courts, including those of the court from which the question came, judgment, conformably to the decision of all, or of the major part of all, the judges so convened, was rendered in the court wherein the case was still pending unremoved, and as the judgment of the judges of that court; agreeably to what Coke reports to have been actually done in Hil. 41 Eliz. in Wild's case. What is still more remarkable, Lord Alvanley makes these very gross mistakes, although the sentence of his opinion immediately following what I have quoted is, " The next case to which I shall allude is that of King v. Melling; " which is always cited from the report of it in 1 Ventr. as incomparably the best; and there he was stared in the face with such expressions as these: by Rainsford J., pp. 225-6, " I rely mainly upon Wild's case, 6 Co., which was brought before all the judges of England; " by Twisden J., p. 227, " I rely mainly upon Wild's case, 6 Co., and the case quoted out of Benloe in the end of that case," giving it as it is given in 6 Rep. 17 b; " 'tis true, that case is variously reported in the books, but I adhere to my Lord Coke, presuming that, that being brought before all the judges, in the argument of Wild's case, it was a true report; " and by Hale C. J., p. 231, " the court of King's Bench were at first divided; indeed it was afterwards adjudged an estate for life to Wild and his wife." But the most serious in point of importance, though not the sole remaining, nor the most remarkable, of his oversights (in this astounding collection of them) is exposed as follows by Mr. Jarman: " In Seale v. Barter, Lord Alvanley observed that according to the report of Wild's case in Moore, two of the judges thought it was an estate tail in him, though there were children at the time of the devise; but probably it did not occur to his lordship, that the devise in that case was to [Wild] and his wife and, after their death, to their children; which, it is now admitted on all hands, gives an estate for life to the parents, with remainder to their children; so that," continues Mr. Jarman, " the notion as to its being an estate tail was clearly untenable; " (2 Jarm. Wills 315; ) a remark repeated from Mr. Jarman's supplemental volume to Pow. Dev. 502; and again repeated in the third edition (p. 372,) doubtless also in the second, of his work on wills, by Wolstenholme and Vincent, his English editors, who by no means adopt implicitly all his views; and not quarrelled with by Mr. Perkins, his well-known American editor. Finally, the statement of Lord Alvanley, that " they all," meaning all the four judges of the King's Bench, " agreed that, if no children had been born, it would have been an estate tail," --this most extraordinary statement,--has no warrant whatever in (even) Moore's report; nor in another report of what is doubtless the same case, in Gouldsb. 139, pl. 47, although given there without any name, and among cases of Hil. 43 Eliz.; while it is, in the most positive manner, contradicted by Coke's report, published very soon after he was made chief justice of the Common Pleas, when his intellectual powers were in their zenith, of a case which he doubtless had himself argued, and which his report of it shews him to have understood perfectly. No counsel is, indeed, named in any report I have seen of it; but, besides its being hardly possible that Coke, then at the head of the common-law bar, should not have been engaged in such a case, in 1 Ventr. 231, King v. Melling, it is said by Hale C. J., that Coke did argue the case in Moore 397, of Richardson v. Yardley; which fact may well have been known to him, from some yet unpublished MS. note of the case, or from tradition not then worn out in the profession, or from Sir Francis Moore's communication, whose grand-daughter was Hale's first wife. Life of Hale (prefixed to Runn. edit. Hal. Hist. Comm. Law, Dubl. 1792,) p. xxxiii; Wallace's Reporters, 3rd edit. 86.-- Professor Hoffman, in his Course of Legal Study, gives a selection of leading cases from Coke's Reports; and his neat and at the same time accurate abstract of Wild's case is in these words: " Devise to baron and feme, and after their decease to their children, or, remainder to their children; whether they have or have not children at the time, this is but an estate for life in baron and feme, remainder to their children. But if lands are devised to A. and his children or issue, he having none at the time, A. takes an estate tail; but if he have children at the time, he and his children take a joint estate for life. " Hoffm. Leg. Stud. 2nd edit. 203.
Having said thus much, I am content to leave to the court whether " Wild's case is a strong authority for an estate tail here," as counsel opposite insists it is; or even so much as the very slightest of all possible authorities for such a position. Misunderstood, as Lord Alvanley misunderstood and misstated it, perhaps it would countenance such a position; but, with the due corrective applied, it affords not any such countenance. While if that be true which, as counsel opposite says, " towards the end of [Coke's] report is asserted," it manifestly tends contrariwise; namely, " that if a devise be to A. for life, and after his death to his children, then, even though A. has no child at the time, he shall only take a life estate with remainder for life to his children." Accordingly that gentleman manifestly feels an incumbent onus on him to give some answer to this (as he styles it) assertion; and his answer is, that it is " a mere obiter dictum. " To me the propriety seems very questionable, of calling a solemn resolution by the twelve assembled judges, upon a point deliberately considered, a " mere" obiter dictum, even when it is not strictly necessary to the decision. I will not, however, consume time in remarking further upon that topic; but will at once advance three (more pertinent) propositions: First, that this resolution is an inevitable corollary from the precise point upon which the case was actually decided: Second, that if no such decision had been made, and the matter was now resting upon that resolution and the reasoning in support of it furnished, with admirable clearness, in Coke's report, without a particle of influence in point of authority, from either the judges that adopted it, or the great jurist who, with his own manifest approbation thereof, has reported it, still it would stand irrefragable; and these two propositions I simply submit to the court: Third, that the matter does not now rest there, but the " resolution" has been since confirmed in a vast multitude of cases, by solemn decision, until the doctrine has become, in the words of Mr. Jarman before quoted, " admitted on all hands," --to such a degree that he did not think it worth while to quote authorities at all in support of it; and this proposition I shall proceed at once to maintain, by citing some out of that multitude of cases; Goodwin v. Goodwin, 3 Atk. 370, 1 Ves. sen. 226; Denn v. Page, 3 Dougl. 294, 1 Bos. & P. 261, n.; Hay v. Coventry, 3 Durnf. & E. 33; Foster v. Romney, 11 East 594; Doe v. Vaughan, 5 Barn. & Ald. 464, 1 Dowl. & R. 52; Ashley v. Ashley, 6 Sim. 358.
In the first of these six cases, a testator having given his estate in Norfolk, after the death of his wife, " to Joan Seaman for her life, and afterwards to her children, to be equally divided amongst them share and share alike; and, for want of such children," to the testator's right heir on the side of his father; Joan having one or more children born in the lifetime of the testator, and one or more born after his death; Lord Hardwicke held that each of her children took, by purchase, in remainder, an estate for life and no longer. In the last of them, a testator having devised an estate to A. for life, remainder to all the children of A. as tenants in common and not as joint-tenants; and, for want of such issue, to B. for life, remainder to all the children of B. as tenants in common and not as joint-tenants; and, for want of such issue, to C. in fee; Sir Lancelot Shadwell V. C. held that the children of A. took, as purchasers, in remainder, estates for life, with cross-remainders between them for life, with remainder to B. for life, with remainder to her children for life, with cross-remainder between them for life, with an ultimate remainder to C. in fee. And the whole half dozen have (out of a much larger number of English and American cases to the like effect) been selected for their possessing a remarkable property, namely, that of overthrowing, simultaneously, no less than three points of opposite counsel's argument. First, in all of them, subsequent to Goodwin v. Goodwin, it was manifestly considered, and in some of them it was decided, as it was in that case, to be no way material whether the children, or sons, or daughters, or any of them, were or were not born at the date of the will or in the lifetime of the testator: agreeably to what, in that earliest case of the six, Lord Hardwicke said: " Wherever there is a remainder to children, by a settlement or will, it is not material whether they are alive or not; for it will vest in different parts and proportions, as they come in esse. As to the interest these several children took under this devise, it clearly is as tenants in common for their lives only, remainder over to the heir [of the devisor] on the side of [[[[[his father]; and this according to Wild's case. " 1 Ves.sen. 227.--Next, in all of them it was held, that the first taker had not an estate tail, but only an estate for life, although the remainder to his or her children or sons or daughters was for life only, without a provision for their descendants.-- Lastly, there was in each of them, though there was not (as Mr. Pettit points out) in Wild's case, a limitation over in default of such issue.
Under this last head the fault of that gentleman's argument,--or rather its excellence, regarded as an effort in support of a bad cause,--consists in his not distinguishing between limitations over upon a definite, and such limitations upon an indefinite, failure of issue: Which distinction is well illustrated in one and the same case of Curtis v. Longstreth, 44 Penns. St. Rep. 297. There a testator devised his dwelling-house to one " for his natural life, not to be sold or exchanged while he lives, and at his death to vest in his heirs as tenants in common; but should he die without issue, then the said property to descend to" the testator's " surviving heirs; " and he devised to the same person " also for and during his natural life" another messuage with its appurtenances, " and, after his decease, the same to go to his children, share and share alike; but should he die without issue, then the said property to be equally divided among" the testator's " surviving heirs:" And, the first taker's interest in both properties having been sold by the sheriff; on a case stated for the court's opinion, it was held, 1. that the devisee took an estate tail in the dwelling-house, which estate, under the Pennsylvania statute of April 1859, became a fee simple; but 2. that he took no more than a life estate in the other messuage, the gift of it being, not to him and his children immediately, but to him and afterwards by way of remainder to them, and the words " should he die without issue" being construed to mean " without such issue," --that is, in the latter clause, " without children; " while in the former it meant " without heirs (issue) of his body. " --Whether this was a correct interpretation of the phrase " die without issue," where it occurred in each or in either of the clauses of that will, I am, in the present case, no way concerned to inquire; since the decision, right or wrong, serves equally well the purpose of mere illustration; one branch of it proceeding upon the principle, that a limitation to the first taker for life, remainder to his children, remainder over in default of such issue, to wit, children, gives to the first taker no more than a life estate,--as in the six English cases last cited by me; the other branch of it proceeding upon the principle, not less thoroughly settled, that a similar limitation over upon an indefinite failure of heirs of the body (issue) of the first taker will make him tenant in tail,--subject to the distinctions I shall now state.
If land were devised, in Virginia, by the will of a testator who died before 1 Jan. 1820, to one and his heirs, or to one for his natural life, or to one (simply), with a limitation over upon his dying without issue, or without leaving issue, (these being in regard to real estate phrases of one and the same import, Sm. Ex. Int. § 538; ) in each form of devise the first taker would have an immediate estate tail; but if, in such a will, land were devised to one for life, or to one (simply), with remainder to his children, or sons, or daughters, for life, or without definite expression of the quantum of their estate, remainder over in case the first taker should die without issue or without leaving issue, so expressed as to shew by the context that an indefinite failure of issue was the contemplated event, the first taker would have an immediate estate for life only, with remainder to his children, or sons, or daughters, for life, remainder to the first taker himself in tail, (2 Jarm. Wills 380-397; Monypenny v. Dering, 9 Mann. Gr. & S. 793; Key v. Key, 19 Engl. L. & E. Rep. 617, 622, 627, 4 De Gex, M. & G. 73; Parker v. Tootal, 3 Herlst. & C. (Am. ed.) 1013, 1019-1020, 11 H. L. Cas. 143; Dennett v. Dennett, 40 N.H. 493, 43 Id. 499; ) and so, were the limitation over upon an indefinite failure of any line of issue, male or female; the only difference being, that the first taker's estate tail, immediate, or mediate (in remainder), would be an estate tail male, or an estate tail female, general or special: Which estate tail, of any kind, in possession or in remainder, would, since 7 Oct. 1776, be converted, by force of legislative will, into fee simple pure and absolute; so as to cut off all limitations subseqaent to such estate tail, but not any preceding it. And upon this ground stands every case, not erroneously decided, which opposite counsel has cited, or which can be found, wherein a first taker has been held to be tenant in tail, either in possession or in remainder, under a devise to such taker expressed to be either in fee simple, or for life, or left indefinite; save where, after a devise to him, a remainder has been limited, in terms or in effect, to the heirs, or to the heirs male, or to the heirs female, of his body; so as to bring the total limitation within the grasp, " iron grasp" it may well be called, of the Rule in Shelley's case: A rule so clearly not applicable in our case, that I propose to say nothing further concerning it; but, on the contrary, to confine attention (as far as practicable) to the class of authorities concerning estates tail implied from any source of implication suggested by Mr. Pettit.
The most (by far) of his authorities cited to support the position, that Nancy Perry would have taken an estate tail, under such a will as her father's, before 7 Oct. 1776, are cases in which there was, or (what is tantamount in estimating their effect as authorities) there was held to be, a limitation upon an indefinite failure of issue, general, or special (as either being of one sex, or being begotten of or on the body of some particularly described husband or wife, which last was the case of King v. Melling, 1 Ventr. 225, better stated in Pollexf. 101-102; ) sometimes with, sometimes without, aid from other features, in the context of the will, assisting such a construction. To this head are referable, of the cases on which he relies, (besides the case just mentioned,) the following long list, viz: Jesson v. Wright, 2 Bligh. 1; Doe v. Applin, 4 Durnf. & E. 82; Doe v. Smith, 7 Id. 531; Wood v. Baron, 1 East 259; Crooke v. De Vandes, 9 Ves. 197; Pierson v. Vickers, 5 East 548, 2 Smith 160; Barlow v. Saller, 17 Ves. 479; Doe v. Goldsmith, 7 Taunt. 209, 2 Marsh. 517; Simmons v. Simmons, 8 Sim. 22; King v. Burchall, Ambl. 379, 1 Eden 424; Roe v. Grew, 2 Wils. 322, Wilm. 272; Roy v. Garnett, 2 Wash. 9; Carter v. Tyler, 1 Call 165; Hill v. Burrow, 3 Id. 342; Tate v. Tally, Id. 354; Eldridge v. Fisher, 1 Hen. & M. 559; Sydnor v. Sydnor, 2 Munf. 263; McClintic v. Manns, 4 Id. 328, 331: Kendall v. Eyre, 1 Rand. 288; Goodrich v. Harding, 3 Id. 280; Bells v. Gillespie, 5 Id. 273; Broaddus v. Turner, Id. 308; Ball v. Payne, 6 Id. 73; Jiggetts v. Davis, 1 Leigh 368, 401-402; Callava v. Pope, 3 Id. 103; Bramble v. Billups, 4 Id. 90; Doe d. See v. Craigen, 8 Id. 449; Nowlin v. Winfree, 8 Gratt. 346; Callis v. Kemp, 11 Id. 73; Tinsley v. Jones, 13 Id. 289. And under this head are properly ranged also Doe v. Cooper, 1 East 229; Dansey v. Griffiths, 4 Maule & S. 61; Wollen v. Andrewes, 2 Bingh. 126, 9 Moore 248; Tidball v. Lupton, 1 Rand. 194; and Doe d. Thomason v. Andersons, 4 Leigh 118; though the phrase in them was " die without leaving issue," or some similar expression, which difference is (as I have heretofore noticed) of no consequence whatever in devises of real estate; such phrase, so applied, being held to denote an indefinite failure of issue: This, in several of the cases last enumerated, the judges, who decided them, expressly pointed out; and see Forth v. Chapman, 1 P. Wms. 663, together with other cases hereafter cited in connexion with it.--The cases of Walter v. Drew, Comyns 372, and Jones v. Morgan, stated in Butl. Fearne 597-610, from all the reports of it, (which cases bear, in truth, very little relation to this subject,) had, in each, this same feature of an indefinite failure of issue.--To this head also the case of Robinson v. Robinson, 1 Burr. 38, 1 Keny. 298, 3 Atk. 736, 2 Ves. sen. 225, 3 Bro. P. C. edit. Toml. 180, is in reality referable, though not at first blush so plainly; but if we will only bestow that attention upon the remarks appended to the certificate in 1 Burr. 51-52, which is due to the source of them, we cannot miss the principle of the decision; the principle in fact applied, whether justly applicable or not. Those remarks are ostensibly the reporter's; but in truth they were dictated, if not actually written, by Lord Mansfield, who doubtless penned the certificate. In 3 Durnf. & E. 96, Jones v. Roe, Buller J., as a vindication of his right to rely upon remarks in like manner appended to another certificate in Burrow's Reports, said: " It has been openly acknowledged by Lord Mansfield, and I have had repeated opportunities of hearing the same from him in private, that he has given to Sir James Burrow his own note and opinion of a case, which he could not deliver publicly in court; for it was not at that time the practice of this court to give their opinions here in cases which came from the court of Chancery:" the " practice" in this respect, was altered by Lord Mansfield in 1774. Wright v. Holford, Cowp. 34; see Ram on Science of Legal Judgment 216-219. And Sugden, in his Law of Vend. & Purch. 2d ed. (1806), p. 560, n.; 3d ed. (1808), p. 618n.; and in his edition (1811) of Gill. Us. 41 [84],n., says: " The reasons at the end of the case of Robinson v. Robinson are well known to have been written by Lord Mansfield." The fact, indeed, even from internal evidence alone, cannot reasonably be doubted. And, as thus explained, most lucidly, by Lord Mansfield himself,-- whatever may be thought of the soundness of the decision, (which directly contradicted decisions previously made by very great judges, Sir Joseph Jekyll M. R., and Lord Talbot C., on the same will; see 1 Burr. 46-47, 1 Keny. 306, 317, 3 Atk. 738, 2 Ves. sen. 225, 3 Bro. P. C. edit. Toml. 180-181; )--the case no way fights against my side in the present discussion; so far otherwise, its principle harmonizes perfectly with all the doctrine I have advanced, or shall advance, therein; it being only, that where the court holds (right or wrong) the limitation over to be dependent on an indefinite failure of issue male of the first taker, there such first taker will have an implied estate tail male.--And substantially to the same head are referable a class of decisions, not numerous, whereof it has cost me much time and toil to discover a true statement.
The first of them is commonly cited as Bifield's case, Hil. 42 & 43 Eliz.; which is said in 1 Burr. 46, arg. Robinson v. Robinson, to be " mentioned only in Lord Chief Justice Hale's argument in 1 Ventr. 231, and in no other book." In like manner, when that case of Robinson v. Robinson was before him, Lord Hardwicke said: " I can find no place where the word ‘ son’ has been construed to give an estate tail in the first taker, but the case of Byfield in the time of Queen Elizabeth, cited by Lord C. J. Hale in the case of King v. Melling. I do not know what weight to give to this case, because, though I have looked into Cro. Eliz. and all the contemporary reporters, yet I cannot find it reported, and notwithstanding it was mentioned by Lord Chief Justice Eyre in the case of Dubber v. Trollop, yet he states it from the case of King v. Melling, and so does every one who cites it in any case subsequent to King v. Melling; and therefore it is probable Hale quoted it from a manuscript: And, upon such an authority as this is, I cannot justify it to myself to construe the word ‘ son’ to give an estate tail in the case before me." 3 Atk. 737. (Nor, as we have seen, did the judges of the King's bench, who certified their opinion on that case, of Robinson v. Robinson, differ from him in this; their certificate having proceeded on quite other ground.) And in another case, about the same time, Lord Hardwicke said further: " I cannot help saying that it is a great misfortune to Westminster Hall, there is no report of Lord Chief Justice Hale himself of the case of King v. Melling, nor any copy of his argument, for it is very imperfect in Ventris, especially as to the cases said to have been cited by Hale; " or, according to another report, " it is a great misfortune there is no report of that case by Lord Hale himself, or of his own argument; for though the cases there cited are often mentioned by judges, yet there is no certainty of the correctness of the report." Lethieullier v. Tracy, 3 Atk. 746, Ambl. 223.--As to Byfield's case (so-called), in particular, I believe (and shall certainly render very probable, if I do not fully prove,) that there never was any such case of that name; that Hale did not cite any case by such designation in King v. Melling; that the case which Ventris has miscalled so was cited, not from any manuscript, but from a report then in print; and that we possess means of ascertaining with reasonable certainty what the point was and how it had been disposed of. Let me premise, that there never was and never could have been any Hillary term in any two regnal years together of Queen Elizabeth, whose accession was on the 17th of November, whereas Hillary term has always, immemorially, begun in January and ended in February, till the commencement of the reign of William the Fourth, when it was fixed to terminate on the 31st of January or, if that were Sunday, then on the next day. Dugd. Orig. Jurid. 89-91; Tidd's Pact. 9th edit. 105-106; Tidd's New Pract. 41-44. But the 17th of November in the reign of Elizabeth, and long before and long after, always fell in the midst of Michaelmas term; which from the reign of Henry the Third at latest, probably from a time anterior to the Conquest, until the year 1641, when the statute of 16 Car. 1. c. 6, " concerning the limitation and abbreviation of Michaelmas term," took effect, always (barring Sundays) began on the 9th of October and ended on the 28th of November, (Dugd. Orig. Jurid. ubi supra; Cow. Interp. edit. 1637, 1727, voc. Term; ) so that any Michaelmas term in her reign, regularly holden, necessarily was in two regnal years, one ending, the other beginning, in it. And let me further premise, that there is a case, to which I would particularly call attention, of Mich. 42 & 43 Eliz. in Moore 682, pl. 939. This report, under the name of Milliner v. Robinson, begins with stating an exception taken to the declaration, in ejectment; which exception was held good, thus necessitating a judgment for the defendant on that ground, without any decision upon the merits, as we phrase it, or, as it was common in those days to say, the matter in law. The report then proceeds: " In the case between Biby and King, the demise [laid in the declaration, in ejectment,] was" in a form, which also was held bad, and with the like necessary result; but it was for a fault no way resembling the fault in the case of Milliner v. Robinson; which fact I particularly notice because it is a circumstance that tends to lead a reader, not upon his guard, into supposing what follows of the report to be part of the case last mentioned therein. And then, in immediate juxtaposition, comes the rest of the report in these words (literally translated): " The matter in law was, that Robinson devised to his brother John, and, if he should die leaving no son, that the land should remain to William for life, and, if he should die without issue having no son, it should remain to the right heirs of the devisor. The first brother has an estate in tail to his issues males; the second has but for life, or at any rate (saltem ) to heirs females, because " having no son' is merely contingent; per Popham." Now, we read as follows in Keble's report (3 Keb. 99) of Hale's argument in King v. Melling: " [ Wild's case comes not] to this case, ‘ children’ being only made nomen collectivum to serve the testator's intent, but the word " issue' is, of its own nature; and Moore 682, pl. 939, cites King and Bibe, devise, if A. dieth, not having a son, then & c., which is made tail." And in Ventor's report of the corresponding part of the same argument (1 Ventr. 231) we read: " It [ Wild's case ] comes not to this case; for though the word " children' may be made nomen collectivum, the word ‘ issue’ is nomen collectivum itself. Hill. 42 & 43 Eliz. Bifield's case : A devise to A. and if he dies not having a son, then to remain to the heirs of the testator; ‘ son’ was there taken to be used as nomen collectivum, and held an entail." Doubtless when Hale cited Moore 682, pl. 939, as Keble reports him to have done, he mentioned also the date in Moore, Mich. 42 & 43 Eliz., (agreeably to what we know, from his published writings, was very much his habit; ) and both that and the name Biby being caught imperfectly by Ventris, as might happen in many ways, he wrote down the former Hillary and the latter Bifield, in his notes; from which, after his death, the publication was made of his reports. How easily this might happen is illustrated by an anecdote immediately connected with the present subject. According to Atkyns, in his report of Robinson v. Robinson, 3 Atk. 738, " Lord Hardwicke said, after mentioning the case of King v. Melling, in Ventr. Rep., that the argument of Lord Chief Justice Hale in Ventris was not copied from his own argument, but the arguments in the case of the
in Ventr. Rep., that the argument of Lord Chief Justice Hale in Ventris was not copied from his own argument, but the arguments in the case of the Seven Hundreds of Cirencester, and a case upon alienations were copied verbatim from a manuscript of Hale; " the two cases alluded to being, indubitably, Atkyns v. Clare, 1 Ventr. 399-412, and Collingwood v. Pace, Id. 413-429; neither of which concerns alien- ations at all, but the latter is a very famous case concerning aliens; --perhaps Lord Hardwicke used the law-french phrase " alien- nees. " One thing in Ventris's report is impossible to be true; the case cited could not have occurred in Hill. 42 & 43 Eliz., though the mistake in this respect has been followed, without correction, or (probably) detection, by Lord Chief Justice Eyre and his reporter, (Ambl. 454; ) by Mr. Fazakerley and his reporter, (1 Atk. 433, West's Hardw. 309; ) by Mr. Viner (8 Vin. Abr. 280, pl. 7, marg.; ) and by Mr. Preston (2 Prest. Est. 551; ) and, when we consider the form of the devise, conspicuously uncommon, it seems hardly possible, and, without stronger proof, altogether incredible, that two cases were before the court or courts, upon it, at the same term, and that Hale cited them both, at once, and in the same connection, with the result of one reporter mentioning only one, and another reporter mentioning only the other, of them; especially when it was much easier to confound an unfamiliar name Biby with Bifield, than to confound (as Ventris certainly did) the familiar name of Michaelmas with the no less familiar name of Hillary. For one, therefore, I do not doubt that Hale did not vouch any manuscript report for the case cited, which in consequence of Ventris's inaccurate hearing now passes, and probably forever will pass, under (what is a mere pseudonym) the name of Bifield; and that the report he did vouch, in Moore, gave him all of what information he professed to have concerning the case. According to which printed report, " the matter in law," respecting the construction of the will, neither was nor could have been, at that time, decided; and all that we can can gather, even of extra judicial opinion upon it, is what Popham held. This was the view taken of it by Comyns, who says, in his Digest, tit. Devise N. 5: " A devise to A., and, if he dies not leaving a son, & c. A. takes in tail male. Per Poph. Mo. 682. 1 Ventr. 231." And from this manner of citation it is perhaps inferrible, that the Lord Chief Baron considered, as, by this time, this court peradventure considers, the case in Moore, and that cited in Ventris, to be one and the same. Circumstances, however, favour the belief, that the devise which missed receiving a judicial construction in the case, perhaps between Biby and King, but more probably between Milliner [ Miller? ] and Robinson, was a few years afterwards, once, perhaps twice, brought again sub judice, between Robin son and Miller [ Milliner? ] and perhaps between parties not nominally the same; repeated actions of ejectment upon the same title and between substantially (though not nominally) the same parties having then already become common, as Coke mentions, and laments, in the preface to 8 Rep. xxv-xxviii. See Selw. N. P. 773, tit. Ejectment, xiv. In 3 Hugh. Abr. (published in 1662), p. 1917, pl. 16, it is said: " A man devised lands to his wife for life, the remainder to his son; and if his son died without a son, that then it should remain over; it seemed to the court, that this was a good estate tail; and it was adjudged accordingly. Trin. 7 Jac. in C. B. Robinson's case. " And this account is repeated in 2 Shepp. Abr. 48, almost verbatim, in substance precisely. The close resemblance between it and what is said in 1 Ventr. 231 respecting Bifield's case, there so-called, cannot escape observation; but the report in these two books, of the terms of the devise in Robinson's case, is unquestionably not quite accurate. The same case had been noticed in Shepp. Touchst. (first published in 1641), p. 441, in a form little satisfactory to Mr. Atherley or Mr. Preston, in both of whose respective editions the devise is printed as being " to his wife for life, and after to his son, and if his son died without issue (or having no son), then that it shall go to another." But I suspect there is here a misprint, probably the work of some bungling editor; though from want of access to the several editions of the Touchstone prior to the two that have been specified, I am not able to give the court positive assurance of it as a fact. Yet the proof is very persuasive; for in another work of the same author, to wit, Shepp. Epit. (published in 1656), p. 504, the devise is set forth as being " to his wife for life, and after to his son, and if his son die without issue having [not or having] no son, then that the land shall go to another; " and ibid. 961, it is stated that " if one devise his land to his wife for life, and after to his son, and if his son die without issue having no son (or having no male), then that it shall go to another; by this devise the son hath an estate tail to him and the heirs males of his body. Adjudg. Tri. 7 Jac. C. B. Robinson's case. " This latter statement, without indicating any source of information other than MSS. is repeated verbatim in God. Orph. Leg. (first published in 1674), p. 334, of the 4th edit.; and almost verbatim (exactly so respecting the terms of the devise, but concluding " by this the son hath an estate tail to him and the heirs [not saying males ] of his body," ) in 4 Shepp. Abr. (published in 1675), p. 45: And the substance of it is given, in a somewhat more perspicuous form ibid. vol. 2, p. 47, thus: " if one devise land to his wife for life, and after to his son, and if his son die without issue having no son, then that it shall go to another; this is an estate tail to him and the heirs males of his body. And so also it is, if the words be, if he die having no male; " which probably was delivered elliptically, meaning " if he die [without issue,] having no male." In 2 Brownl. (published in 1652), p. 271, Robinson's case, the whole report is: " A man devises lands to his wife for life, the remainder to his son, and if his son dies without issue, not having a son, that then it should remain over, and it seemed that this is a good estate tail, and it was adjudged accordingly." Lastly, the following is a literal translation from 1 Roll. Abr. (published in 1668, after Rolle's death,) p. 837, pl. 12: " If a man devise land to his wife for life, and after to his son, and, if his son die without issue having no son, then another shall have it; the son has an estate tail to the heirs males of his body by this devise. Trin. 7 Jac. B. between
If a man devise land to his wife for life, and after to his son, and, if his son die without issue having no son, then another shall have it; the son has an estate tail to the heirs males of his body by this devise. Trin. 7 Jac. B. between Robinson and Miller, per Curiam. " Which, per incuriam, is represented in Danvers's translation, otherwise accurate, to have been in B. R., (3 Danv. Abr. 181, pl. 12; ) but Viner adheres faithfully to Rolle. 8 Vin. Abr. 212, pl. 12. Of these accounts,--which are all I can find of the case, unless some to be presently mentioned are of the same case, and which accounts I have taken pains to collate for the court's use, because the books containing them are for the most part difficult of access,--all agree concerning the decision which was made, and the term and the court in which it was made; Coke, the then recent reporter in print of Wild's case, being (let us remark) at the time chief justice of the Common Pleas, wherein the case was adjudicated.--In Littleton's Reports (published in 1683) of cases from the second to the seventh year of Charles the First, the following passages occur in reporting arguments of counsel; at p. 259, Beck's case, " Trin. 6 Jac. Robinson's case, Ban. Reg.; a Yorkshire case, Robinson, seized in fee, devised to one lands for life, and if he die without issue having no son, that they should remain to J. S. in fee; adjudged that it was an estate tail:" at p. 286, Beck's case, at another day, by counsel on the opposite side, " 6 Jac. Banc. Reg. Robinson's case, Robinson devised to A. his wife, for life, et si il devy sans fits that then it should go over, this is an estate in fee," (I suspect some erratum, but there is no list of errata to the volume): and at p. 8, Kene v. Allen, " Trin. 6 Jac. Robinson, seised of land devisable, devised it to his son, and if he should die having no issue male, the remainder to another, this adjudged tail to the son." Which notices, all corresponding as to the time, one year before the decision in the Common Pleas, and two of them stating that it was in the King's Bench, while the other is silent respecting the court, seem to show that the same judgment had been passed in the latter court as in the former, upon the same will, notwithstanding some discrepance of statement as to the terms of it, and notwithstanding in one of them it is said,--by palpable mistake,--that the wife (qu. son?) was held to take a fee [simple]. And perhaps the case cited by Hale, 1 Ventr. 230, 3 Keb. 99, as Robinson's case, 4 Jac., may possibly be the same case, but, if the same, then of course mis-stated; for that is said to have been a devise to A. for life, and, if he died without issue, then over, as it is put in Ventris, or to J. S. and, if he should die without issue, as it is put in Keble.--Either of these two forms of devise would clearly be within a rule long since become familiar, which I have already mentioned, respecting limitations over upon au indefinite failure of issue. Upon all the other statements of the case, including that of Moore in his report of Milliner v. Robinson, if it be on the same will, and indeed though it should be not on the same will, but on another, resembling it, I remark: First, that while, where the limitation over is upon the first taker's dying without issue not having a son, or dying without issue having no son, or dying without issue having no male, or perhaps where it is upon his dying without issue or having no son, or upon his dying without a son, or, not having a son, or, having no male, or, having no issue male, there, if the preceding limitation to the first taker is indefinite as to duration, then such limitation over will made him tenant in tail male; yet in not one of all the books quoted is there even the least intimation of the ground of such a decision, except in the quotation I have before given from Ventris, namely, that in those circumstances " son" is a nomen collectivum; which, in truth, merely states what, in that case, " son" is, without even a suggestion of the cause why it is so. But I submit, that the true solution is the same as of the decisions in Wyld v. Lewis, 1 Atk. 432, West's Hardw. 308; Tate v. Tally, 3 Call 354, (according to the remark of Judge Lyons, p. 361; ) and, as it would seem, of Butt v. Thomas, 32 Engl. L. & E. Rep. 575, 36 Id. 571, 11 Exch. Rep. (2 Hurl. & Gord.) 235, 1 Hurl. & Norm. 109; to wit, the solution suggested by President Tucker in his remarks (12 Leigh 376-377, Wright v. Cohoon; ) upon the case of Robinson v. Miller, and which are in consonance with the doctrine delivered by himself in Doe d. See v. Craigen, 8 Leigh 449, cited with approbation by Judge Moncure, in Tinsley v. Jones, 13 Gratt. 295; --that, " there being no words of inheritance in the devise to the son," as the devise is stated in that case of Robinson v. Miller, or to the brother, as the devise is stated in Milliner v. Robinson, and no words of gift to any of his descendants, therefore none of them could ever " get the estate unless it was construed to be an estate tail" in him, " though it was clear the testator postponed the devise over with a direct reference to benefitting" such descendants, or some of them: Which sort of reasoning, the judges assembled in Wild's case had already resolved, was sufficient for adopting this kind of construction. 6 Rep. 17 a-b. See also 1 P. Wms. 57, Bamfield v. Popham. And in this way, from this cause, the word " son" is, under such circumstances, necessarily made nomen collectivum, for the nonce; since an estate tail, in its nature, cannot be descendible to fewer than all generations. But in the case at bar there is a direct and express gift to the children of the first taker, if she has any, by way of remainder, from and after the termination of her estate: which, according to the decision in Wild's case, abundantly confirmed as I have already shewn that it is, absolutely precludes any similar construction here. My second remark on them is, that, where such words of limitation over follow a preceding limitation for life (expressly) to the first taker, the single opinion intimated in them is (Moore 682), that he probably will have no more than a life estate; except in the citation from Litt. Rep. 259, where it is abundantly certain that the devise is mis -stated, since it differs in that particular from every one of so many other statements of the same devise: Nor, with that exception, have I met with any case, so far as I can at present remember, that carries the point, upon such a devise, further than Popham's opinion in Moore goes. On the contrary, while it is perfectly settled, that where an estate is devised to one for life, with a limitation over upon an
goes. On the contrary, while it is perfectly settled, that where an estate is devised to one for life, with a limitation over upon an indefinite failure of issue of the first taker, there such taker has an estate tail, as the law was aforetime, from the first moment of the estate's vesting in such devisee; which estate is not subsequently diminished into the life estate originally nominated for him in express terms, though he die without ever having had issue, (Doe v. Halley, 8 Durnf. & E. 5; Jiggetts v. Davis, 1 Leigh 419): Yet it is settled no whit less firmly, that where a devise is to one for life with remainder over in case he die without issue living at the time of his death or at other not indefinite period, this gives to the first taker, at the beginning, a mere life estate, which neither the birth of issue subsequently, nor the circumstance of such issue surviving the first taker, can enlarge into more than a life estate, even where the will does not give an estate to them; the former branch of this proposition having been solemnly decided by Lord Hardwicke, after elaborate argument, in Lethieullier v. Tracy, 3 Atk. 774-797, Ambl. 204, 220, 3 Keny. 40, 1 Id. 56-65; since which decision the point has been always considered settled both in England and in Virginia (1 Jarm. Wills 490; Lew. Perpet. 294-295; Jenkins v. Clinton, 6 Jur. N. S. 1045; Jiggetts v. Davis, 1 Leigh 420; 3 Lom. Dig. 310-311 [209-210]; ) and both it and the latter branch of the proposition having been decided in New York. Eagle Fire Insurance Company v. Cammett, 2 Edw. Ch. Rep. 127. Now, in our case, there is an express estate for life, (and contingently somewhat longer than the first taker's own life, but not exceeding a life of another person), given, with no limitation over upon an indefinite failure of issue of the first taker: as I would proceed forthwith to prove, but that I desire first to notice some other authorities, specially relied on by counsel opposite. These I prefer to notice in this place, because I would not choose to turn back for that purpose after once entering upon what may be called our contention.
One of them is a citation at second hand (through the reported argument of counsel in Jesson et al. v. Wright, 2 Bligh 28, or rather through the printed reasons for plaintiffs in error in that case, see Sugd. Prop. 250, note p; ) from 1 And. 43, pl. 110; not a decided case, and not of Anderson's own reporting. Serjeant Bendloes's Reports were never printed, in anything like the state wherein he left them, until 1689, about a century subsequent to his decease. Meanwhile some copies and more abstracts (much resembling in manner the marginal abstracts in some modern books of reports) had been made from them, sometimes directly, sometimes mediante some other copy (perfect, or, as it might happen, more or less imperfect) or some abridgment; concerning which manner of multiplying what were called copies of Bendloes's reports, Serjeant Rowe says, in his preface to the publication just now mentioned of 1689: " It is manifest that those different copies were but different notes and extracts from the original, wherein such as collected them made use of their own judgments in the manner of abridging and in the choice of the cases; and under the same observation may not improperly fall the notes of some of the same cases, which we find in the beginning of Anderson and [of] Moore, and in some places in Leonard's Reports; " all of which, to wit, Anderson, Moore, and Leonard, we may remark, were posthumously published, and therefore without any claim of authorship on the part of any of them. In point of fact, the first one hundred and thirty-one placita in 1 And. are, almost without an exception, thus taken either from some copy of Bendloes's reports, or (what seems more likely) from some abstract previously made therefrom, with an occasional condensation of, or curtailment from, even such abstract. In 1661 was published a volume, beginning (p. 1) with these words (literally translated): " Here follow cases reported by Serjeant Bendlowes, in the time of H. 8, E. 6, P. & M., and the Queen Elizabeth; written out of his own Reports verbatim; " which statement is glaringly false, as we now have the means of knowing, (whether or not consciously false on the part of the publisher), in regard to almost, if not quite, every one of the one hundred and sixty-six cases there given, (in the publication of 1689 the cases number three hundred and two; ) but there are many of the one hundred and thirty-one placita (before mentioned) in Anderson which agree verbatim with the corresponding accounts of same cases in this book; and others of those placita seem taken from the prototype of this volume, or (more probably) from some common prototype of both, (not Bendloes's original,) with a curtailment thereof by the person (whoever he was) that made the copy since published with the reports of Anderson. This appears, or something very like it, to have happened in regard to the placitum relied upon by counsel opposite in our case. [Here Mr. Green collated, in extenso, 1 And. 43, pl. 110; the book published in 1661, called sometimes Old, sometimes New, Benl. (see Wallace's Reporters, 3rd edit. 83-84 in notis, 93; ) p. 30, pl. 124, almost, but not quite, literally translated in the Supplement (or Appendix, as it is called,) to Hughes's Abridgment, published in 1663, tit. Taile, pl. 2; a citation, from MSS., at the end of the report of Richardson v. Yardley, Moore 397; another citation, from MSS., in Owen 148, Lilly v. Taylor, 33 Eliz.; and yet another in 1 Bulstr. 219, Whiting v. Wilkins; all professedly derived from Bendloes; and then proceeded:] All of which variant accounts (except the last) being together with that given in Coke's report of Wild's case, before the court in King v. Melling, it was therein said by Twisden J. (as we may remember) that he would adhere to the version given by Coke, for the very sensible reason that, that version being, by a most reliable reporter, of what was alleged before all the judges to be Bendloes's report, the strong presumption is that it was the genuine account left by Bendloes. And in the same case it was said by Pollexfen at the bar, that he conceived the case " to be very doubtful and of no authority," by reason of the variations in the different accounts of it, though professing (all of them) to come from the same source, and for the further reason that, at best, it was but a " case moved [not to the court as such, but to the justices thereof as experts merely,] and their opinion [was delivered] without argument or debate, for aught appears," (Pollexf. 108, King v. Melling; ) after a fashion, which would not now be tolerated, I presume, in any court of Westminster Hall--or " nuper de " Westminster Hall--for the very solid reasons suggested by Dyer C. J. in 3 Leon. 30-31, pl. 58, anno 15 Eliz.; and of which I do not remember an instance since the dialogue between serjeant Pheasant and the court, in Hill. 17 Car. 1. anno Domini 1641-2, reported in March 155, pl. 224; but which was very common in the time of the Year-Books; not infrequent, even after Dyer's remonstrance, in the reign of Elizabeth, as appears in Cro. Eliz. 10, pl. 4, 5; 13, pl. 6; 17, pl. 9; 61, pl. 3; 174, pl. 4; 182, pl. 3; 190, pl. 2; 278, pl. 5: 431, pl. 36; 532, pl. 64; 753, pl. 13; and of which some examples are reported as late as the early part of the reign of Charles the First. Litt. Rep. 70, Anon.; 163-164, Pomfraye's case; Hetl. 74 [76] Anon.; 150, Mortimore's case. Finally (so far as that case put is concerned), no trace of it is to be found in the volume of Benl. Rep. published in 1689; whether because it was not in the MSS. from which that publication was made, or whether it was deemed (from any cause) not fit for publication in it, we are not told. But in Mich. 10 Jac. 1, a case came before the Common Pleas (while Coke was still chief justice there), of which we have a reliable account; and in which it was held, that " if a man devise to his eldest son for life [ et non aliter ], the remainder to the sons of his body lawfully begotten, and, if they alien, that his daughters shall have the same estate, remainder to his right heirs; the eldest son has but an estate for life, and no estate tail, but his son shall have it by purchase, because it is expressly limited that he [the first taker] shall have it only for life." 1 Roll. Abr. 837, pl. 13; there given without name, but cited in King v. Melling, 3 Keb. 54, 99, as Portridge's, or Partridge's, case, by Lord C. J. Hale; who, by means of information derived from MSS., was able to state that Rolle's account was correct with the single exception of its leaving out the words " et non aliter; " which, therefore, in my preceding statement of it, I have supplied. King v. Melling, 1 Ventr. 231. This, sufficiently for all the purposes of our case, overrules and explodes the (probably never uttered) responsio prudentum bearing no sort of resemblance to judicial decision, retailed at second (perhaps third, or fourth, we know not at what) hand in 1 And. 43; discredited as that is shown to have been otherwise; especially with aid from the case of Lethieultier v. Tracy before cited, and other authorities of that class: To which I will now add Wedgwards case, Hill. 13 Car. 2. rot. 121, cited also by Hale, in the next sentence in Ventris to that which I have last quoted. " A devise to his son Thomas for life, and, after his decease, if he died without issue living at his death, then to the daughter & c.; it was held to be an estate for life. " This, as appears in 3 Keb. 99, King v. Melling, was the case of Plunket v. Holmes, 1 Lew. 11, T. Raym. 28, 1 Sid. 47, 1 Keb. 29, 119; in which last-mentioned book and page (and no where else) we discover that Thomas, the first taker under the will, was named Wedgwood (or Wedgward). As to which case of Plunket v. Holmes see Butl. Fearne 341; Boothby v. Vernon, 9 Mod. 147; (cited in Hooker v. Hooker, 2 Barn. B. R. 201, W. Kel. 192, 194, Ann. Hardw. 15, 18, Cunn. 4, 5, 7, 8; ) 2 Saund. 382, note 1 to Purefoy v. Rogers; and the cases which I shall hereafter state, of Loddington v. Kime and Carter v. Barnadiston. --Moreover, as to this whole doctrine of raising estates, or enlarging or diminishing them, on an implication of intention, it was recently said by Lord Westbury C., a very great lawyer: " I quite agree with some remarks made at the bar, that the older cases are no longer to be regarded as safe guides in such an inquiry. Great latitude was undoubtedly given by them to the doctrine of implication." Parker v. Tootal, 3 Hurlst. & C. (Am. ed.) 1015, 11 H. L. Cas. 143.
The case next in order, relied upon by counsel for appellants, is Hodges v. Middleton, 2 Dougl. 431; as to which I shall save myself the trouble of distinguishing it from our case, by giving it an answer more laconic. It is not law. The conflict between it and Wild's case, and also between it and the case of Ginger v. White, Willes 553, was pointed out by Serjeant Frere in his edition of Douglas, published as long ago as 1813. To the same effect also was the note previously published, of learned reporters, (both afterwards raised to the bench, one in England, the other in India), to Seale v. Barter, 2 Bos. & P. 498. In 1827 Mr. Jarman, in his supplemental volume to Pow. Dev. 495, note q, said: " In Hodges v Middleton, Dougl. 431, Lord Mansfield and the court of King's Bench, inclined to think that where a testator [[[testatrix] devised to A. for life, and after her death to her children, upon condition that she or they constantly paid £ 30 a year for a clergyman to officiate in her [testatrix's] chapel, and on failure thereof to testator's [testatrix's] own next heirs, and in case of failure of children of A. then to her [[[A.'s] brother G., & c.; A. had an estate tail, or that, if she took an estate for life, the children took an estate tail; and, as recoveries had been suffered by both, the alternative of these propositions was not material. As the limitation to the children in this case was by way of remainder, there seems to have been no ground, whether there were children or not, for holding the parent to be tenant in tail," --agreeably to what, I have before quoted Mr. Jarman as saying, is now admitted on all hands. " It is as difficult to perceive any solid ground for giving the children estates tail: The direction to pay the £ 30 a year would have enlarged their devise to a fee, " which would have conduced equally to the same result, under the particular circumstances (of recoveries suffered), as either of the other constructions. This note is retained in the first and third English editions of Jarm. Wills, vol. 2, p. 308 of the former, p. 366 of the latter, and in all the American editions, with no change but that of adding " simple" to the last word " " fee." And in 1831 Mr. Preston, in arguing Broadhurst v. Morris, 2 Barn. & Adol. 1, said: " Hodges v. Middleton was expressly overruled in a case in chancery, which has not been reported on this point, viz. Charles Monck and others v. The Commissioners of Woods and Forests. " That case, therefore, in which the court, without occasion, and consequently without opportunity, to decide what estate either the mother or the children took, if either she or they took more than a life estate, whether in fee tail or in fee simple, yet contrived to mistake the law both as to the former and as to the latter,--can now serve no purpose, but to mislead such as can be misled, and to furnish others with an admonition against implicit reliance upon even authentically recorded opinions, of judges whose names are in highest renown. " Quandoque bonus " --; of which I shall still have to notice only too many specimens.
The next case, stated and commented upon by counsel opposite, is Seale v. Barter, 2 Bos. & P. 485; but as he has introduced a quotation from counsel's argument therein, which mentions the case of Davie v. Stevens, 1 Dougl. 321, I will first bestow some passing notice upon it. That was a marvellously plain case to have any question raised upon it; and it was so treated by Lord Mansfield, who said, after listening to counsel on both sides: " I had a mind to see, whether ingenuity could raise a doubt on the one side, or on the other supply an argument to make the case plainer than it is on the face of it." The case, duly considered, only proves even less than what innumerable other authorities have long since established; to wit, that where a testator by his will sufficiently defines the sense he therein designs to put upon the word, he may, with effect, use any word in any sense, even if that sense be the direct opposite of its usual acceptation; just as well as our legislature could affix certain meanings to certain words and phrases, of their defining, wherever these are found in statutes enacted while the statutory definition is in force, " unless such construction would be inconsistent with the manifest intent." V. C. 1849, c. 16, s. 17. In this manner, real property may pass under a testamentary gift of " personal estates," (Doe v. Tofield, 11 East 246; ) and personal property may not. Goodman v. Edwards, 2 Mylne & K. 59. See Carnagy v. Woodcock, 2 Munf. 234; Tebbs v. Duval, 17 Gratt. 349, 361.-- The case of Seale v. Barter turned altogether upon the codicil; whereby the testator devised all his estates to his son J. S. and his children lawfully to be begotten, J. S. being then married, but having no child; so that, according to the rule in Wild's case, as reported by Coke, (and with which, therefore, Lord Alvanley needed not to quarrel,) J. S. plainly took an estate tail; which construction assuredly was in no manner weakened by the further provisions of the codicil, that J. S. should have power to settle the same by will or otherwise on such of his children as he should think proper, (thereby determining the estate tail, as the court held, so far as its continuance would interfere with a settlement made in pursuance of such power; ) and, for default of such issue, then to the testator's daughter E. S. and her children lawfully to be begotten, with a similar power; and, in default of such issue, to J. S. and E. S. equally between them; with a proviso that a settlement of £ > > > > 200 per annum should be made on any woman whom his son might thereafter marry, and that his estates should be chargeable therewith. The wonder is, not that this was held to give J. S. an estate tail, but that the question should have been thought capable of bearing a moment's debate after Wild's case, confirmed as that had been in so many cases meanwhile, (and see, since then, Broadhurst v. Morris, 2 Barn. & Adol. 1, remarked upon by Kindersley V. C. in Davis ex parte, 2 Sim. N. S. 121, 9 Engl. L. & E. Rep. 91; Roper v. Roper, 3 Comm. Pl. (L. R.) 32; Parhman v. Bowdoin, 1 Sumn. 359; Nightingale v. Burrell, 15 Pick. 104, 114; Wheatland v. Dodge, 10 Metc. 502; Doe d. Thomason v. Andersons, 4 Leigh 122, 130; Wright v. Cohoon, 12 Id. 377; )--unless indeed the circumstance might have raised some doubt, which existed in the case, (2 Bos. & P. 487,) and was mentioned by Lord Alvanley, (ibid. 491,) but was not noticed by counsel on either side in argument, and received no particular attention from the court,--that after the making of the codicil and before the testator's death, the first taker had issue that survived him. As to this see 2 Jarm. Wills 310-312, 1st edit., 367-369, 3rd Engl. edit.
The last of the cases cited for appellants under this head, not already disposed of, either en masse, or in detail, is Mellish v. Mellish, 2 Barn. & Cr. 520. There is, I believe, no copy to be found in Richmond of that book; and from the very curt abridgment, rather than report, of the case in 9 Engl. C. L. Rep. 165-167, it is impossible for any but the brightest intellect, aided by the fullest information on this head, to be certain of discerning accurately the ground of the court's decision. But the same case is reported in 3 Dowl. & R. 804-821; and from that report, containing not only full arguments of counsel, but also numerous remarks of the judges inter arguendum, we may learn satisfactotorily what views of the case led to the certificate which was sent. In substance the court held that the testator, not conjecturally, but certainly, from indications in the will itself, designed to give interests which necessarily required an estate tail in the first taker; or, as it is reported to have been said arguendo, by counsel whose contention was successful against an implication of an estate tail, " in Mellish v. Mellish the court read ‘ son’ and ‘ daughter’ as importing the whole line of issue; but that was expressly because the circumstances shewed that, if not so read, the estate would go out of the family; and the real and undoubted intention of the testator woald be defeated, " (31 Engl. L. & E. Rep. 72, East v. Twyford; 4 H. L. Cas. 517, S. C.; ) and, having reached this conclusion, which they could not but assume to be right, even if it were in other men's judgments wrong, they were at liberty, nay bound, so long as they rested in it, to give the devise that effect, by the authority of Robinson v. Robinson heretofore mentioned, and of numerous other cases: Which, upon a like ground, were again followed in Doe v. Davies, 4 Barn. & Adol. 431, 1 Nev. & M. 654.
These authorities establish, that the word " children" may be made to mean heirs of the body or issue, the words " sons" to mean heirs male of the body or issue male, and the word " daughters" to mean heirs female of the body or issue female, for the sake of accomplishing the testator's intention, whenever his ascertained intention requires that sense to be put on them; and I conceive, from the context of Hale's opinion in King v. Melling, that he cited the case he did cite therein, whether by the name of Bifield or of Biby, to this point alone. But, while they do this, the same authorities inferentially shew, further, that such is not the primary sense, the natural, or ordinarily the legal, signification of those words; since, in order to put that sense upon them, argumentation was requisite in proof that, in the particular cases, such an intention existed. And, therefore, every thing entitled to the name of authority concurs in sustaining the position of a good text-writer, that " ‘ children,’ ‘ son,’ [‘ daughter,’ ] are technically words of purchase; yet either ‘ children’ or ‘ son’ [or ‘ daughter’ ] will, if it is the intention, be accepted as a word of descent; " just as, per contra, " ‘ heirs' and ‘ heirs of the body’ are technically words of descent; yet, if it is the intention, ‘ heirs' or ‘ heirs of the body’ will be accepted as words of purchase." Ram on Wills 53. That is to say, these words and phrases will not change their nature, while they retain their natural meaning; but a meaning, different from their natural, will be put on them, when that is necessary for accomplishing the testator's intention. But then, intention, in order to produce such effects, must be " manifest and certain, not obscure or doubtful," as was resolved by the judges in Wild's case, 6 Rep. 16 b. Or, in the words of Lord Hardwicke, it must appear by " declaration plain, that is, not saying in so many words, but plain expression or necessary implication, which is the same thing." Garth v. Baldwin, 2 Ves. sen. 65. Or, as Alderson B., delivering the opinion of the whole court of Exchequer, after elaborate argument and time taken for consideration, said with pains-taking precision: " Upon a careful examination of the authorities we think that it may be safely laid down as a rule, that in a devise technical words, or words of definite meaning, shall always be construed according to their legal or definite effect, unless, from other inconsistent words in the will, it be quite clear that they are used in some other definite sense. Thus, if the words ‘ heirs of the body,’ which are technical words, properly admitting only of one meaning, are used, it becomes necessary to show affirmatively that the testator meant clearly to use them as words of purchase; --it is not enough to raise a reasonable doubt whether he intended to use them as words of limitation, or to show a probable conjecture that he intended to designate children only by that phrase." " Another instance of the application of the rule may be found, in the class of cases in which ‘ sons' [or ‘ daughters'] or ‘ children,’ which in their proper sense are words of purchase, have been held to be words of limitation. There, in like manner, it must be demonstrated from the will affirmatively and clearly, that by these expressions the testator meant all the descendants [or all the male or all the female descendants] of the body to take as heirs." Lees v. Mosley, 1 Younge & Coll. Exch. Rep. 606, 607. And, as was said by Sir Thomas Plumer M. R., if the intent be uncertain, if it be in equilibrio, or even in suspense or doubt, then the legal operation of the words must take effect." Cholmondeley v. Clinton, 2 Jac. & W. 96. See further Ram on Wills 31-32, 109 et seq.
I have now noticed, I believe, every authority, which has been cited by counsel opposite as favouring that side upon the topics hitherto discussed. And I think it may be stated without danger of mistake or of serious or plausible dispute, that the discussion has established, as applicable immediately to the case in hand, the following results:--First. That although, where an estate is devised to one, either expressly for life, or indefinitely, with whatever subsequent limitations, if the testator's intention be sufficiently discovered, to provide (by means of the same subject matter of estate) for all offspring of the first taker, or for the whole of any line of such offspring, in every successive generation descending from such first taker, or for some described progeny within the whole of any line of such offspring, in every such generation, there, as the law was aforetime, the will would give to the first taker an estate tail,--according to circumstances, either immediately, or else in remainder after some intervening estate,--where otherwise the property would not be transmissible, conformably to such intention, either to descendants at all, or else to descendants more remote than those the will has suo jure provided for: Yet such intention is never sufficiently discovered from mere conjecture, however plausible, or however probable in itself, but must always be proved, from the will, expounded in the light of such extraneous evidence as is legally admissible; by demonstration plain; past any doubt; so as not even to leave the judicial mind in any suspense about its having been thus demonstrated; else the legal operation of the words must take effect; upon the not unnatural, nay the necessary, presumption that the technical effect of the words is intended by the testator, if a different intention be not apparent therein.--Second. That a devise to one, either expressly for life, or even indefinitely, with remainder to the devisee's children, whether expressly for life, or indefinitely touching what estate they should take, would not, as the law was before 7 Oct. 1776, have made the first taker tenant in tail, either immediately or in remainder, by reason of an intention, thence presumed, of the testator, to provide for all the descendants of such first taker, or upon any other ground. For this the decision in Wild's case, which has never since been shaken, but on the contrary has been very frequently confirmed, is ample authority.--Third. That while an implication of such intention, as is necessary for giving such first taker an estate tail, immediately or in remainder, is sufficiently made out from a limitation over upon a failure of issue of the first taker whenever, at any time indefinitely future, it shall happen,-- commonly (for the sake of brevity) styled an indefinite failure of issue; and while the same implication sufficiently results from a limitation over upon such failure of children, where the context demonstrates, with the plainness I have just now mentioned, that " children" is used as synonymous with " issue," so as to comprehend successive generations as long as the progeny shall last; yet it is otherwise, where the limitation over is upon, what from its contrast with the foregoing is called, a definite failure of issue, or of " children" in the sense of " issue," meaning a failure in some particular generation, or at or before some collateral epoch or event, designated: And while a limitation over, upon a failure of issue, must prima facie be construed as upon an indefinite failure,--which in all that, to the purposes of this case, is proved by numerous authorities collected by counsel opposite, and which authorities therefore, after this distinct admission of what they prove, I need not notice any further; --yet it is otherwise, either where the limitation is upon a failure of " children," so denominated in the will, if there be not in the context enough to force that term out of its natural and also technical signification, into the larger signification of the term " issue; " or even where the limitation over is upon a failure of " issue" or " heirs of the body," so denominated in the will, if it be shown by the context to mean a failure of such issue, or such heirs of the body, as " children" are in the natural and technical signification of the term last mentioned; that is, immediate fruit of the first taker's own body, the necessary parentage of his grand -children, should any be born to him. The last in order of these propositions is inferrible from Jesson v. Wright in the House of Lords, and from our Virginia case of Moore v. Brooks, and was actually decided in Doe d. Wright v. Jesson in the King's Bench, Jordan v. Adams in the Common Pleas, and our Virginia case of Prior v. Duncan. The proposition immediately preceding it is clearly deducible a fortiori from the same authorities, and moreover was expressly decided in Goodwin v. Goodwin, Denn v. Page, Hay v. Coventry, Foster v. Romney, Doe v. Vaughan, Ashley v. Ashley, and the Pennsylvania case of Curtis v. Longstreth.
Upon these authorities, in consonance with the soundest as well as the best settled principles, it seems clear that Nancy Perry would have had no more than an estate for the term of her own life and (contingently) the widowerhood of any surviving husband she might leave,--not an estate tail, as the law was aforetime,--even if the clause in question of her father's will were to be read as counsel opposite desires it should be; to wit, in the sense of giving a remainder to the testator's children after the remainder to those of Nancy Perry, though she should leave children, who, surviving both her and her last husband, should actually come into possession of the land. For, even then, according to the lex temporis (prior to 7 Oct. 1776), as the preceding authorities show, the remainder to the testator's children, would have taken effect at the termination of the life estate of her children; though they should have left ever so many children. These grand -children of Nancy Perry would have taken no more than the grand -child of Rowland Wild and his wife did; who took just nothing.
But I consider it to be very certain, that such is not either the true meaning or the legal construction of the clause under consideration; and that, on the contrary, both the former and the latter are the same as if the clause were in these words: " I lend to my daughter (certain) land, to be possessed by her and whosoever shall lawfully claim under her, during her natural life and the widowerhood of any surviving husband whom she may leave; and at her death and the death or aftermarriage of such surviving husband, if any, then to be equally divided among her children, if she has any; otherwise, then to be divided among all my children." There is room to contend, that the word " then," where it occurs the second time in this sentence, or rather in the corresponding sentence of the original, has the same meaning as where it occurs first; and that it is, in each instance, an adverb of time, denoting in a monosyllable what is expressed more at large by the phrase " at such time, and so soon, as she shall be dead and no surviving husband of her shall be remaining unmarried." But I waive all dispute about that; being content to take the second " then" as denoting only the contingent event of the first taker having no children. Stil lthe legal effect will be the same; and that is, to create what is now most commonly called an alternative limitation. Such limitations, or the gifts made by means of them, considered in conjunction with those for which they are contingently substitutionary, have also been called, sometimes contingencies with a double aspect, sometimes gifts upon a double contingency, sometimes devises or bequests on two alternative contingencies. Sm. Ex. Int. § 129. Under their now more common, as well as more accurate, appellation, they have been defined, and an illustrative example of them given, as follows: " An alternative limitation creates an interest that is only to vest in case the next preceding interest should never vest, in any way, through the failure of the contingency on which such preceding interest depends. As where a testator devises to A. for life, and, if he have issue male, then to such issue male and his heirs forever; and, if he die without issue male, then to B. and his heirs forever." Ibid. § 128; Sm. Re. & Pers. Prop. 242. The case thus put for an example is the very case of Loddington v. Kime, 3 Lev. 431, 1 Salk. 224, 1 Ld. Raym. 203; which Mr. Jarman, both in his supplemental volume to Pow. Dev. 517-518, and in his work On Wills, vol. 2, pp. 338-339, assailed with remarkable vehemence; pronouncing it to be " clearly overruled." Not that any court, or even any single judge, or any text-writer,--save himself,--has passed that sentence of condemnation upon it; but he conceived it to be not reconcileable with some subsequent decisions. This, however, was a clear mistake of that able and (in general) accurate writer; which his English editors, since his death, have, in great measure, saved me the trouble of proving to be such, by their withdrawing from his work On Wills all traces thereof, and substituting instead a reconciling explanation. 2 Jarm. Wills 397-398, 3rd Lond. edit. His error was the consequence of an essential mis-statement (by him) of the case, upon that very point for which it is here adduced. The devise was to one for life, and, if he should die without issue male, then over; which undoubtedly would have given the first taker an estate tail, if that had been all; because then it would have been a limitation over upon an indefinite failure of issue male. But the full statement of the devise, omitting only words clearly not material on the present occasion, is as follows: " As concerning my manors of Pickworth and Willoughby, I devise them to my uncle Evers Armin for his life, without impeachment of waste; and in case he shall have issue male, to such issue male and his heirs forever; and after the death of my uncle Evers Armin, in case he leaves no issue male, the manor of Pickworth to my nephew Sir Thomas Styles and his heirs forever. And as to the manor of Willoughby," concerning which the question arose, " in case my uncle Evers Armin die without issue male, I devise it to my nephew Thomas Bernardistone and his heirs forever:" thus indicating that the final limitation was not to take place whenever, at any time indefinitely future, there should happen a failure of the first taker's male issue; but that it must take effect, if at all, in case (only) the first taker should not have issue, that could take at the termination of the life estate given him. The case therefore,--in which it was held, that Evers Armin had but a life estate, with alternative contingent remainders limited thereon,--is a clear authority, that words, which ordinarily would import an indefinite failure of issue, yet shall not receive that interpretation where the context shows that the limitation following is not intended as a remainder, after a limitation to the first taker's issue shall have been spent, but is intended as an alternative limitation, in case that (to the first taker's issue) shall never vest. And if this authority should be thought to need confirmation, after Mr. Jarman's assault (alio intuitu ) upon it, I may mention that another case afterwards arose before the court of chancery, concerning the title to the manor of Pickworth under the same will, as to which the question was, in legal effect, precisely the same as it had been concerning the manor of Willoughby in Loddington v. Kime; and it received, twenty years after the decision in that case, precisely the same answer in the House of Lords, upon appeal, in accordance with the unanimous opinion of all the then judges. Barnardiston v. Carter, 3 Bro. P. C. edit. Toml. 64-74, 1 P. Wms. 505-510. After which the same will was again, by fresh bill, brought before Sir Joseph Jekyll M. R., and, by appeal from his decree, before Lord Parker (afterwards Macclesfield), C.; from both of whom it also received the same construction. Carter v. Barnadiston, 1 P. Wms. 510-522. And although Levinz reports (3 Lev. 435), that " before any judgment was given, the parties [in Loddington v. Kime ] agreed and divided the estate; " which statement, repeated from Levinz in 1 Salk. 225, has been sometimes understood as asserting (what it does not) that no judgment was ever entered, and led Lord C. J. Ryder, for instance, into believing that the case was never determined, notwithstanding the statement in Lord Raymond's report presently mentioned, (Doe v. Reason, cited 3 Wils. 246); yet indubitably the fact was, as it is stated in the report of Lord Raymond, which concludes (1 Lord Raym. 209) with these unusual and remarkable words: " And therefore judgment was given [& c.] for judgment is entered upon the record for the plaintiff." The reason of which particularity will be seen in what Lord Raymond said when delivering (as chief justice) the court's opinion in Shaw v. Weigh; wherein, adverting to the passage I have quoted from Levinz, he said: This " is a mistake; for I heard the opinion of the court given seriatim myself, viz. Pasch. 9 Wm. 3, in the year 1697, that Evers Armin took but an estate for life, because the first issue male took the [a] contingent remainder. It has also had decisions in other places; it having been brought into the court of Chancery, and by appeal thence carried into the House of Lords: The judgment given in the court of Common Pleas was in all those places confirmed, and not in the least shaken; and has been acquiesced under ever since. Judgment is entered on the roll, in C. B., Trin. 5 W. & M. rot. 1551, as was said by Eyre, C. J. in another case." Fitzg. 21-22, and (in totidem verbis ) Fortesc. 74-75. See also, 2 Stra. 844, 1 Eq. Abr. 183, pl. 23, more concisely to the same effect; 11 Mod. (edit. 1781, not Leach's) p. 298, Treby C. J. in Scattergood v. Edge. In 3 Wils. 240, Doe v. Holme, it is also said that Lord C. J. De Grey, delivering the opinion of the court in that case, said, about Loddington v. Kime, " though both Levinz and Salkeld report that the parties agreed, and divided the estate, before judgment was given, yet it appears from a MS. report of the case by Judge Blencowe, (which the reporter Serjeant Wilson has seen) that, after long consideration, judgment was given that Evers Armin took an estate for life, with contingent remainder over." And Sir Wm. Blackstone, who was one of the court that decided Doe v. Holme, in his report of that case, (2 W. Blackst. 778,) states the chief justice to have said, that Loddington v. Kime resembled " this case in all points. That was several times agitated in all the courts of Westminster Hall" --this, however, I cannot verify with respect to the courts of King's Bench and Exchequer--" and (continues the chief justice, according to Blackstone,) at length settled in Dom. Proc. by the unanimous opinion of all the judges." The real truth about the result in Loddington v. Kime is, doubtless, what is stated in 3 Bro. P. C. edit. Toml. 66, as follows: " After several arguments in the court of Common Pleas judgment was given in favour of Armyne Bullingham [the substantial plaintiff, though not in form such upon the record.] But both [of the substantial parties to the suit] being relations, they afterwards came to an agreement:" which, as that report proceeds to narrate in detail, was effectuated by deed enrolled, and fine, and recovery. See also 1 P. Wms. 507; and observe that the date there given, of Jan. 1697, was subsequent to Easter term 1697, according to the civil calendar used in England till the year 1752. No decision, therefore, ever came under review, that brought with it a greater amount of judicial authority touching the same identical point, than this does. Moreover it was not only followed in Doe v. Holme, but, furthermore, in that case, " the lord chief justice De Grey said, he should have been of the same opinion, although the case of Loddington and Kime had never been determined." 3 Wils. 243. And, without being cited, it was yet in effect followed, in our Virginia case of Foxwell v. Craddock, 1 Patt. & H. 250. Besides which, in Fearn. Posth. pp. 178-184, 185-190, there are two several opinions of probably the most able judge of such questions that has yet lived, (though never installed in a judicial office,) to precisely the same effect, on original reasoning and without distinct reference or allusion to these cases or any of them; though certainly not unaware of those in England, all of which had arisen and been determined before his day. Butl. Fearne 225, 354-356, 373-374. See also Egerton v. Massey, 3 Comm. Bench N. S. 338, 349-354.--Therefore, upon this distinct and separate ground, in addition to the ground heretofore discussed, I submit that Nancy Perry did not take more than an estate for her own life, with a contingent elongation thereof during the widowerhood of such husband as she might leave surviving.
Whether this contingent elongation would make any difference in the case of that devisee, favorable to her taking an absolute ownership in fee simple, through the medium of a constructive entail, is an inquiry which counsel opposite has not noticed, except insofar as it is involved in his discussion of,-- Secondly, what he suggests is a difference between her title and that of Sally Stone under the same will; the devise in favor of the latter being of land " to be possessed by her and any husband, she may have, upon the same terms and conditions as Nancy Perry's." --I shall, therefore, now transfer my discussion, also, to the direct consideration of Sally Stone's title; though really that is, out and out, the same as Nancy Perry's.
The words in the devise to Sally, " to be possessed by her and her (future) husband," coupled with the residue of the same clause, would not, if she had married, have given an estate of any kind to her husband; for that consequence (of giving him an estate or interest under the will, apart from what his jus mariti would confer,) is annulled and absolutely stifled by the last words of the clause referring to the " terms and conditions" affecting Nancy Perry's land under the clause of the will concerning it: Which certainly gave to Nancy's present or future husband nothing whatever in the land, during her life or after her death, except--I was about to say, but in truth it did not give him even,--what he might derive from the marital right of himself or from the good pleasure of his wife. Under the former he would have the right of enjoyment during the coverture, but no longer, since of such an estate he could not be tenant by the curtesy because it was not descendible. 1 Lom. Dig. 55-56 [[[[[47-48]; see also Boothby v. Vernon, 9 Mod. 147, 2 Eq. Abr. 727, pl. 3. Under the latter, if his wife chose, he might have the same enjoyment continued durante viduitate sua (but no longer); for, although she (as being a feme covert ) could not, either by deed directly from her to him, or by will, give him such benefit, for want of express power to that effect conferred by her father's will, yet such purpose was capable of accomplishment; it might have been effected by deed from her and him to some third person, to be conveyed back for any modification of estate agreed upon, within the limits (in point of duration) of her original estate. Shepperson v. Shepperson, 2 Gratt. 501; Shearman's adm'r v. Hicks, 14 Id. 96. If no such conveyance were made, and she died leaving a surviving husband, her interest in the land during his viduity would be disposable as personal assets of her estate. V. L. 1803, 1814, c. 92, s. 54; V. C. 1849, c. 130, s. 18. And that these things would not have been at all different in regard to Sally's husband, if she had married and left a widower, I conceive to be sufficiently clear without quoting authority. Yet I beg leave to mention Goodtitle v. Wodhull, Willes 592, for the sake of its bearing both on this and on at least one other question in this case. [Mr. Green particularly called attention to the penultimate paragraph of the court's opinion in p. 596.]
But while I contend for this, because it seems to me the correct construction; I cannot perceive how my cause would sustain detriment from admitting, that the will gave an estate in remainder, durante viduitate, to the respective surviving husbands (should there be such) of the testator's daughters; since it would seem impossible, that such a limitation to them would any way tend to make the several devises to the respective daughters import an estate tail, or more than a life estate, in these latter. Whether regarded as a contingent provision made by the testator for possible widowers of his daughters, or as a contingent elongation of their respective estates in order to give to them, respectively, the power of making (at their pleasure) such a provision; neither way could it give, or tend to give, any one, an inheritable estate.
Counsel opposite, however, insists that, as Sally Stone might have married a man not born till after the death of her father, so that (according to him) the Rule against Perpetuities would have forbidden her children of such marriage taking as purchasers; therefore " the court will sacrifice the testator's minor intent, that they should take by purchase, " in order that it may--as it " will, under the doctrine of approximation or cy pres, --give effect to his paramount intent, that all the issue of his daughter should take; by giving an estate tail to such daughter, so as to enable the grandchildren to take derivatively through her, though they cannot be allowed to take in the particular mode pointed out by the testator."
Now the first remark I make upon this argumentation is, that it adroitly substitutes for what is certain,--namely, that the testator designed bounty for his daughter's children, if she should have any,--what is worse than uncertain, namely, that he designed bounty for her grand -children and more remote descendants,--in three words, all her issue; whereas this latter intention (imputed) not only does not appear with the plainness of a perfect demonstration, but moreover is so far from it, that, according to the rule of the law prior to 7 Oct. 1776, the very contrary thereof does appear. For, according to that rule, if Sally's children had actually become possessed, under the will of their grandfather, still their children would have taken nothing; as is proved by Wild's case, and the half dozen other English cases which I have heretofore grouped together as supporting the decision in that case.--My second remark on it is, that, this unauthorized portion of the premises being subducted, the rest of the argument collapses. The will of Caleb Stone does not contain an attempt at giving, contrary to legal inhibition, an estate by purchase to the children of a person not in esse when it was itself executed; for it requires that they shall be the children of a person (to wit, his daughter named) who was then in existence. And, if we suppose, argumenti gratia, that what it does attempt is equivalent, because such children may be the progeny of a father not himself born until after the death of the testator; what then? The book quoted by the counsel in support of his contention on this point, Smith's Original View of Executory Interests, does not sustain him: For, after stating the law of the cases, first, " where a testator devises an estate tail to a grandchild, by a child not yet born at the testator's death, to take by purchase, and he appears" -- by demonstration plain must of course be meant, as has been before shown,--" to have intended that all the issue of such unborn child should take, so far at least as the rules of descent will permit," (§ 534, 535; ) and, secondly, " where a testator attempts to create a perpetual succession of life estates in favor of children in esse and more remote descendants," (§ 536 a; )--within neither of which classes does the present case range itself; it proceeds thus (§ 536 b ), " but, where there is a single intent to create a limited number, only, of life estates in succession, not warranted by the Rule against Perpetuities, an estate tail will not be given to any of the persons intended to take life estates." And then an illustrative case is stated as follows: " A testator gave an estate to his son F., during his natural life; and, after him, he gave it to his eldest or any other son after him, during his natural life; and, after them, to as many of his descendants, issue male, as should be heirs of his or their bodies, down to the tenth generation, during their natural lives. It was held, that F. took for life only; Lord Ellenborough C. J. observing, that in Robinson v. Robinson, 1 Burr. 38; Doe v. Applin, 4 T. R. 32; Doe d. Bean v. Halley, 8 T. R. 5, expressions were used denoting an intention that the lands should continue in the descendants of the first taker as long as there were any, without specifying or marking what estates such descendants should take; that this case, however, was not a case of a particular and a general intent, but a case of a single intent to create a succession of estates not warranted by law. Seaward v. Willock, 5 East 198." (See also 1 Jarm. Wills 263-264). Among authorities cited in that case is one which I have heretofore mentioned from Willes 592, Goodtitle v. Wodhull, very forcible to the same purpose; to which I will add one other, the last that I shall state under this head. It is White v. Collins, Comyns 289, accurately stated in 3 Lom. Dig. 347 [239-240], from 6 Cruis. Dig. 362-3 [296-7], as follows: " Francis Harvey devised in these words: ‘ I give to my son Frank Mildmay my farm called East House Farm, & c. to enjoy the rents and profits thereof during the term of his natural life, with power to make a jointure of all or part, if he should marry; and after his death and jointure (if any be made) to the heir male of his body lawfully begotten, during the term of his natural life; and for want of such heir male, I give the said farm to my son Carew Mildmay’ & c. It was agreed, that the limitation to F. M. to enjoy and take the profits during his life, and after his decease to the heirs male of his body, would make an estate tail. So, if it had been to the heir male of his body, in the singular number, where nothing appeared which explained the intent to the contrary. But here the intention appeared to be, that such heir male should have the land only for life, which showed that the testator did not intend that those words should be taken as words of limitation; and nothing appeared in the nature of the expression, which implied that they should be so. Heir male, or next heir male, were words of purchase," --certainly, however, not more than child or children, --" and, in this case, where the devise was to F. M., and after his decease [and termination of the jointure, if he made any,] to the heir male of his body, during his life, the express limitation, during his life, showed that he intended his son should have it in remainder for his life only; and, when he devised it over, for want of such heir male, to C. M., this did not import that C. M. should not have it [[[[[should wait for it] till F. M. died without heirs male generally [ i. e. indefinitely], but [that he should have it] for want of such heir male who was to have it for life." The case was twice argued; once, with great ability, by Comyns himself, who has reported his own argument at considerable length, (pp. 291-301; ) and the judgment, rendered in an inferior court, was unanimously affirmed. To the foregoing abstract of the case let me add, the special verdict found that the testator died leaving Carew Mildmay his eldest son, and Francis (the first taker in the devise which has been recited) his second son, who was not married nor had any issue; that he subsequently suffered a recovery for the purpose of converting his estate into a fee simple, and then devised it by his will, and died; and then the contest arose between his devisee and the remainderman in his father's will, to wit, Carew Mildmay; which terminated in the manner we have seen. The parallel between that case and ours, upon the point at present under discussion, appears to me to be absolutely perfect: For there, as here, a father devised land to one of his younger children, who was then, and at the death of the testator, childless and unmarried, for life, with power to settle the whole land upon any wife he might afterwards have,--though she might not be born until after the death of the devisor,--for the term of her life, such being the well-known nature of all jointures; and after his death and the termination of such jointure, in case any such were made, to the descendant, yet unborn, of the first devisee, who should be his heir male, during the term of his natural life; and, for want of such issue male, over. It is true, the limitation, in our case, to Sally Stone's children, " if she has any," is not expressly for life only; but counsel opposite contends it must be so construed, and this contention is absolutely necessary for his success; since, if they were construed to take a fee simple, that would effectually confine Sally Stone to the life estate nominated in the will for her, as cases almost innumerable have settled. Besides the many heretofore cited, may be mentioned a quite recent one, Crofts v. Middleton, 35 Engl. L. & E. Rep. 466. In that case, of White v. Collins, --to pursue and complete our parallel,--the first taker, claiming to be tenant in tail, undertook to devise the land, after a recovery suffered for the purpose of converting his fee tail, and, if he had had a fee tail, with the effect of converting it, into a fee simple; as, in our case, according to the contention of appellants, Sally Stone did, under general words in her will, devise the land in question, after her fee tail therein, under the law aforetime, had been converted into fee simple, by the statute, the precise effect of which, upon estates tail coming within its operation, was, in the words of Judge Lomax, (1 Lom. Dig. 34 [28],) " the same as if the tenant in tail had suffered a recovery:" And the devisee of the first taker in that case missed of getting the land, because Frank Mildmay took no more than an estate for his life with a power to jointure any wife he might afterwards have, upon the whole land, for her life; as, in our case, the devisee (so-claiming-to-be) of the first taker must likewise miss of getting the land, because Sally Stone took no more than an estate for her life with power (in effect) to " jointure" any husband she might afterwards have, upon the whole land, for his life, provided he should not again marry.
Thus far I have conducted the argument on my part, as if the case of Smith v. Chapman, 1 Hen. & M. 240, never had been decided. Concerning it Professor Hoffman, in the first edition (1817) of his Course of Legal Study, remarked,-- and he retained the remark in his enlarged and carefully revised second edition (1836), p. 186,--" this case is the most valuable case to be found [on the subject to which it relates] in the American reports." And it certainly was not because I dissent at all from that estimate, that I have hitherto forborne to mention the decision. I had a better reason. Opposite counsel devotes to it a long discussion, concluding with an assertion that " the case has been overruled; " as he had begun with asserting that it " is the only one to be found in the books English or American, which tends to sustain the proposition that the testator's daughters took, under the will here, only estates for life and not fee tails." And I was minded to show, first, that there was abundance of other authority tending in that direction with irresistible force; and, secondly, that therefore the decision (in Smith v. Chapman ) ought not to have been overruled; as I now counter-asseverate that it has not been. The true point decided in that case is not accurately represented in the marginal abstract of the reporters; and fault may well be found with their representation. It is as follows: " A testator makes three devises (to his two sons and [his] daughter, severally), for the life of each devisee; and after his or her decease, to his or her child or children; if none, to the other two devisees for life, and then to be equally divided between their children; and [[[he] annexes a codicil, in which he says that, if all his children should die without issue of their bodies, his wife living, the life estate should go to his wife during her natural life, and, after her death, remainder to other persons. The two sons and daughter take each an estate for life; and the remainders over are good, and may take effect; the contingencies not being too remote." Now the single question before the court there was, whether one of the sons, who had died never having had a child, was seized of a mere life estate, or of some larger estate in the lands devised him; the suit being brought by his relict and her second husband to recover dower therein; and all that the court, affirming unanimously Chancellor Wythe's decree, could decide or affected to decide, was that the female complainant's late husband had not been seised of an estate whereof she was dowable; in other words, that his estate had been only for his life. And all that was said by any of the judges, about the limitation over in the codicil, was that it did not import an indefinite failure of issue, but a definite failure, to take place in the lifetime of the testator's surviving wife, which the judges interpreted to mean a failure at the death of each first taker, respectively, happening in the lifetime of his own (the testator's) widow; and not, even then, a failure of issue, in the larger sense of the word, but a failure of children. This appears as to Judge Tucker, 1 Hen. & M. 292, and as to Judge Roane, ibid. 298; the other two judges remaining silent as to this point: And so the opinion of the court was understood, when another case upon the same will was recently before the present judges. On that occasion Judge Joynes, in whose opinion both his associates concurred, said, speaking of the same codicil: " There the testator speaks of the contingency of all his children dying " without issue of their bodies,' in general terms, where the meaning was " without issue of their bodies' (children ) living at their death, as was held by this court in the case just mentioned." 17 Gratt. 363, Tebbs v. Duval. Interpreted thus, that will and its codicil contained nothing which could enlarge the life estate expressly given the first takers into an estate tail, as the law was aforetime; according to very numerous authorities I have already cited, and some others, cited in that case, for which reason I purposely pretermit them here. Whether it was a correct interpretation of the particular expressions there used, is an inquiry wholly foreign to the present discussion, since Caleb Stone's will contains no limitation over upon either a definite or an indefinite failure of issue. For this reason I shall not now consume time in debating that question, or in attempting, formally, to prove what seems to me clearly demonstrable, that that interpretation was in accordance with numerous authorities, and all the best, which were then extant.--To show that upon the topics hitherto discussed other American authorities may be cited not less favourable to my side than Smith v. Chapman is (and is confessed by counsel opposite to be), I will merely refer to Warner v. Mason, 5 Munf. 242; Grim's Appeal, 1 Grant 209; Walker v. Milligan, 45 Penns. St. Rep. 178; Tongue v. Nutwell, 13 Maryl. Rep. 415; Buise v. Dawes, 4 Richards. Eq. Rep. 421; Corbett v. Laurens, 5 Id. 301; Reeder v. Spearman, 6 Id. 88; McCorkle v. Black, 7 Id. 407; Miller v. Hurt, 12 Georg. Rep. 357.
If it has (as I trust it has) now been demonstrated, that there was not, under Caleb Stone's will, an estate tail " as the law was aforetime; " then we have finally done, in this case, with that aforetime law; which had a quasi -continuing existence, for the sole purpose of bringing within the universal " " common recovery," created by statute among us, such limitations of estates as would " aforetime" have created estates tail. No such estate being conferred, that aforetime law subsides into pure and absolute non-existence as constituting any part of the lex temporis, under which Caleb Stone's will was made. And therefore the remaining questions in this case are to be considered and treated, as if the testator had said, " I lend to my daughter Sally (certain property, real and personal, described,) to be possessed," & c. & c., " and, at her death and the death or after-marriage of any husband she may leave surviving, to be equally divided among her children, if she has any, to have and to hold to them, their heirs, executors, administrators, and assigns, forever, and, if she has none, then to be similarly divided among all my children, to have and to hold, in like manner, to them, their heirs, executors, administrators, and assigns; " Since, under a statutory provision to which I have before adverted as in force here from 1 Jan. 1787, this was as much the legal operation and effect of his gifts over, as if he had expressed them in totidem et iisdem verbis.
According to numerous authorities which have been before quoted, Sally Stone's children, if she had had any to take, would have taken as purchasers; so that their fee-simple in remainder would not have coalesced with the life estate given her, and thus invested her with the fee simple under the continuing operation of the Rule in Shelley's case, which was in force among us until 1 July 1850, (V. C. 1849, c. 116, s. 11; c. 216, s. 1; ) and was not less potential to convert an express estate for life in the first taker into a fee simple, where the remainder was (in legal effect) to such taker's heirs general, that it was to convert a like estate into a fee tail, where heirs of the body were the nominated remaindermen. But were this otherwise, it would not affect prejudicially the limitation over in favor of the testator's children; which then would take effect as an executory devise after a previous limitation of the fee simple, (not the less because such previous limitation was, not direct, but indirect, and through the operation of the Rule in Shelley's case, as,--if it were not altogether needless,--might be proved from a case which fortifies divers others of my positions, especially respecting the construction of the word " children," Murdock v. Shackelford's heirs, 1 Brockenb. 130; ) though such limitation would be totally cut off, if the first taker had a fee simple by conversion from a fee tail, under our statute, in consequence of the decision in Carter v. Tyler, 1 Call 165 (with which accords the decision, upon a like statute of New York, in Lott v. Wykoff, 1 Barb. 565, 2 Comst. 355; ) that the courts will not, for the sake of avoiding this effect, construe that to be an executory devise grafted upon a fee simple, which before would have been a remainder limited upon an estate tail; which decision has ever since governed, and will (doubtless) always continue to govern, in cases arising upon deeds made, or upon wills of testators who died, before 1 Jan. 1820. Touching deeds subsequently made, or wills of testators who have died since, a law, which then took effect and still continues in force, has abolished, in this respect, all distinction between such metamorphosed estates tail and what I have heretofore called a natural fee simple. R. C. 1819, c. 99, s. 25, 36; V. C. 1860, c. 116, s. 9. In the sequel, at a place more convenient for introducing such a discussion, I shall prove (as I trust) that the limitation to the testator's children would be good as an executory devise, if it were necessary so to regard it. And therefore, for the present, I conclude, that Sally Stone took, under her father's will, nothing she could devise.
2. As to the slaves: The question does not necessarily stand on the same legal footing as in regard to the real estate, though the testator by his will lends her the girl Phœ be and her future increase " to be possessed upon the same terms and condition as" she would " hold" the land which he lent her.
By the respondents, in their answer, it is insisted that this gave her an estate in the slaves for no longer period than her own life; with a limitation over, to her children, if she had any, or, if she had none, then to the testator's, to take effect at her death, immediately, without waiting for the death or after-marriage of any surviving husband, whom she might leave. While, on the other hand, in their petition of appeal, appellants insist that she took in the slaves either an absolute and unqualified ownership in the nature of a fee simple, or else an ownership in the nature of a fee simple, only qualified by limiting over the property to children of her own, or alternatively to the testator's children, at her death and the death or after-marriage of such husband, and that, this limitation over being (according to their contention) void for remoteness, therefore her estate remained absolute, discharged of such limitation over. I cannot think that any one of all these contentions, is maintainable. Of course, I do not insist that that of the respondents is wrong. I shall be well pleased, if the court shall think it is right. But if the court shall concur with me, that it is not, then, upon that hypothesis, underlying all this part of my argument, I shall endeavor, upon what seems to me the sound interpretation of the will, to defeat the pretensions set up for appellants.
That there was a limitation over, valid or invalid, of the slaves as well as of the land, seems to me to be too manifest to need proving. And assuming it to be so, the first question in order is, what manner of persons could take under the description of children either of Sally Stone or of the testator?--As to which, I take it to be perfectly settled that none but children, properly so styled, could; that grand -children or more remote descendants could not. It is true that Judge Tucker, in Smith v. Chapman, 1 Hen. & M. 290, speaking of the word " children," says: " It has, in a few cases, been construed to mean grandchildren, and even great-grandchildren; " adding, however, " but this construction is to be admitted only where no other construction can be made." He had before delivered himself more at large to the same effect. Bernard v. Hipkins, 6 Call 103. And in Doe d. Thomason v. Andersons, 4 Leigh 127, there is a similar dictum of President Tucker. But the cases in England (and neither of the Judges Tucker cites any other) have been examined with perfect accuracy and precision by Mr. Jarman; who has shown that even in wills the word " child" never has been allowed, and consistently with the decisions cannot be allowed, to comprehend a grandchild or (a fortiori ) any more remote descendant, except in two cases; one, where the testator shows, by the context, that he has used the word as synonymous with " issue; " the other, where the devise or bequest is to the children of A., a person then, to the testator's knowledge, (which knowledge must be proved and cannot be presumed,) dead, leaving only grandchildren: And the later English editors of his work have shown that his conclusions are corroborated by decisions in numerous cases subsequent to the time of his writing. 2 Jarm. Wills 69-73, 1st edit.; 135-139, 3rd edit. Nor can I remember any case in Virginia, wherein the word " child" has been allowed larger scope; while it has been confined strictly to the natural signification, in the case of a statute, (Bernard v. Hipkins, 6 Call 101; ) a special verdict, (James v. McWilliams, 6 Munf. 302; ) and a will. Morris v. Owen, 2 Call 520; Smith v. Chapman, 1 Hen. & M. 240; Tebbs v. Duval, 17 Gratt. 349; Henderson v. Saunders, 1 Sands's Quart. Law Rev. 27, 29-30. And in our case there is a total absence of every circumstance that has been, at any time, thought favourable to the construction which would embrace grandchildren; since here there was no progeny (save in prospect) of Sally Stone, and there were plenty of other children of the testator both at the date of his will and at the date of her dying never-having-been-married and sine prole.
What manner of persons they must be, who could take under the description (in this will) of either his or her children, being thus ascertained; the next inquiry is, what persons (of that sort) were to take by force of the limitations contained in the clauses we are considering. And here it must be noticed, that those clauses contain no gift to the children of either Sally Stone or the testator, but what is contained in the " direction to divide the subject among them upon the happening of a particular event," for which reason, in the words of Judge Joynes on a recent occasion, " only such can take as answer the description at the period of division, unless a contrary intention can be collected from the will." Tebbs v. Duval, 17 Gratt. 364; citing Leake v. Robinson, 2 Meriv. 363; Jones v. Mackilwain, 1 Russ. 220; and referring also to 2 Redf. Wills 621. In that case the principle was a substantive and important, if not an indispensable, ground of the decision; and it may be regarded as perfectly settled. In 11 Engl. L. & E., Rep. 126, Peard v. Kehewich, (also reported in 15 Beav. 166,) Sir John Romilly M. R. said that, in Leake v. Robinson, " Sir Wm. Grant held, no doubt in accordance with all former and subsequent decisions, that there was no gift until" the period appointed for division, " and that the gift was only contained in the words" directing it. So here. And, as I shall assume now, prove hereafter, there is in this will nothing which indicates the presence of any contrary purpose. Let us, then, ascertain by this standard who would, under the clauses in question, take, were there no Rule against Perpetuities; and this upon the hypothesis aforementioned. Very clearly, no children of Sally Stone could, unless they were alive at the death of herself and moreover at the termination of her surviving husband's widowerhood; and, as it was possible that the latest of these events might not happen within the compass of duration allowed by the Rule (which does exist) against Perpetuities, it follows that the limitation in favour of her children, as touching the slaves, was ab initio void. A clear authority to this effect is Hodson v. Ball, 14 Sim. 558, 574. See also 34 Barb. 594, Brown v. Evans; 8 Gray 86, 98-99, Sears v. Russell. But it does not thence follow necessarily, or at all, that the limitation in favor of the testator's children was void also. Perhaps it would have been, had he given to them upon the happening of the contingency designated; because then, the gift being to them and (in legal effect, as we have before seen), their heirs, executors, administrators, and assigns, it might have taken effect, by the terms of the gift to them, and in absence of any Rule against Perpetuities, no matter at how remote a period the contingent event, on which it was to depend, should happen; and so the limitation would, perhaps, have come within the doctrine of the case of Proctor v. Bp. Bath & Wells et als., 2 H. Blackst. 358, where the limitation condemned for remoteness was to the defendant Moore and " his heirs and assigns forever." But the gift here being in fact, according to the sound legal interpretation of its terms, a gift to such alone of the testator's children as should be living when the complex contingency should happen whereon the gift was dependant; the necessary conclusion is, that abstractedly from any Rule against Perpetuities, that contingency must happen within a life in being at the testator's own death or within the time allowed for gestation afterwards, to wit, the life of one of his children, or else the gift must absolutely fail, by its own terms. This avoids all excess of remoteness, and perfectly satisfies the Rule.
The point thus presented is (in effect) noticed by Mr. Jarman, as one which he believed not to have been, at the time of his writing, " the subject of positive decision; namely, whether a devise which, from the nature of the qualification superadded to the devisee, --as in the instance of a gift to children living at the death of the testator,--can never extend beyond the period allowed by the rule of law, is good, though limited to arise upon an event which might, abstractedly consisidered, happen after that period, as an indefinite failure of issue; in other words, whether a bequest in a will made before 1838," --when a statutory provision took effect in England, similar to that introduced at our revisal of 1819, contained in R. C. (of that date), c. 99, s. 26, which took effect 1 Jan. 1820, and has continued in force ever since, V. C. 1860, c. 116, s. 10,--" if A. shall die without issue, to B. if then living, is to be regarded in precisely the same light as a gift in case A. shall die without issue living B. " 1 Jarm. Wills 256, note a. The rest of his remarks there, as given by the editors of the third London edition of his work, blended with their own additions, (1 vol. 263,) are as follows: " Upon principle, it is difficult to perceive any solid difference between the two cases; and the opinion of Mr. Fearne seems to have been in favour of the validity of the former limitation, (Butl. Fearne 488, 500, n.; ) though none of the cases cited by this distinguished writer go directly to the point. Sir Lloyd [afterwards Lord] Kenyon, in Jee v. Audley, 1 Cox 326, expressly states such a limitation to be good. Sir W. Grant, though at one time he expressed doubts on the subject, (17 Ves. 483, Barlow v. Salter; ) seems latterly to have been of the same opinion, (2 Meriv. 133, Massey v. Hudson; ) and we have the authority of Lord Brougham on the same side. 2 Russ. & M. 406, Campbell v. Harding. " All these authorities, however, were only dicta; but, since the date of the latest of them, the precise point, in substance, has been decided in England. In the case of Greenwood v. Verdon, 24 Law Journ. Rep. N. S. (or 33 Law Journ. Rep.) Ch. 65, the facts were as follows: " A testator by his will, after giving certain legacies and annuities, devised and bequeathed [[[all the rest of his personal, and all his real, estate] to his wife and his son J. V., during their lives, and after the death of his wife to his said son J. V. and to his heirs and assigns forever; and from and after the decease of his, the testator's, wife, and of his said son J. V. without issue, he gave and devised all the residue of his worldly property, both real and personal, " to be equally divided amongst the then surviving legatees, share and share alike: " And it was held that J. V. took a fee simple, subject to an executory devise over in case he should die without issue in the lifetime of any of the legatees, and not an estate tail; the contest being between his son, claiming as issue in tail, and his devisees in trust. In delivering his opinion upon the case, Sir William Page Wood V. C. (since chancellor with the title Lord Hatherley) said: It is " " clear that, under the words ‘ dying without issue,’ unless there is something to restrain them, the testator must be taken to have intended an indefinite failure of issue, and that the limitation which was first made to the son in fee would necessarily be cut down to an estate tail. The whole point in this case arises upon the question, whether or not there are words in this will sufficient to limit the words ‘ dying without issue’ to any particular definite period of failure of issue. I will say at once, that looking to the authorities, especially the case which is first of all reported as Campbell v. Harding, 2 Russ. & M. 390, before Lord Brougham, and afterwards under the name of Candy v. Campbell, 2 Cl. & Fin. 421, 8 Bligh. N. S. 469, in the House of Lords, I am bound to construe the words ‘ then surviving’ to mean [[[surviving] ‘ at the time of the failure of issue of John the son; ’ the case therefore becomes narrowed to the point, whether or not, so construing the words, there is sufficient upon the face of the whole will, to show that a definite period was fixed, within which the failure of issue should take place." " Where the limitation is, upon death without issue, among the then surviving legatees, that is to say, to those parties expressed and named in the will who shall be surviving at that period, it must be a personal and not transmissible interest," --not transmissible to the representatives of one deceasing before such period,--" and the only interest which the legatees [so described] could take would be an interest which should accrue to them from the circumstance of their having survived the period of the failure of issue; and, therefore, the period at which the parties are to take being the period at which the failure of issue takes place, I cannot look upon that as an indefinite failure of issue, but as a failure of issue to take place in the lifetime of the several parties who are so named as legatees in the will." " As regards this particular case, it is clear that the failure of issue as described in the gift over points to a period clearly within the legal limitation. It is to his then surviving legatees, share and share alike, who are all individual persons named in his will, and the true construction I apprehend to be this: ‘ I give to my son in fee [simple], and, if he dies without issue and there are then any legatees under my will surviving, then I give it over to those legatees.’ " And having adjudicated this to be the true construction, he decided without difficulty that the fee so given was not reduced to an estate tail, but remained a fee simple, subject to a valid executory devise over. And upon this and some other authorities, which I cited to them, the two judges who then composed the court decided the case of Norris v. Johnson, 17 Gratt. 8. That case arose upon the will of a testator, who had twelve children, and directed his estate to be distributed in twelve equal parts among them, and then said: " It is my will and desire, that if any of my children die without heirs, for their part to be equally divided amongst all my children then living. " And it was held, that this was a good executory bequest in favour of the children surviving one who died without issue, regardless whether the failure of issue took place at the death of the child so dying, or afterwards, provided it were in the lifetime of any child of the testator; as Judge Moncure explained distinctly in delivering the opinion of the court.
Now the true construction of Caleb Stone's will, in view of what has been said, I take to be the same as if his words had been these: " I lend to my daughter Sally" certain (described) property, real and personal, " to be possessed by her and any husband she may have, during her natural life and the natural life or widowerhood of any husband she may leave surviving; and at her death and the termination of such surviving husband's widowerhood by death or marriage, if that combination of events shall happen in the lifetime of any of my children, then to be divided among all my children then living, unless there shall also be then any child or children of Sally, in which case this limitation in favor of my children shall entirely fail of ever having effect in their favor; but if there shall be living any child or children of Sally, when she has died and her surviving husband has also died or again married, then to be divided among them, if more than one, else to go to such only one, no matter whether any of my children shall be then living or not." [In vindication of this as a sound legal construction Mr. Green, additionally to what had been before said, cited and commented upon the following authorities: 2 Jarm. Wills 744, (reg. 19; ) Spark v. Purnell, Hob. 75; East v. Cook, 2 Ves. sen. 32: Covenhoven v. Shuler, 2 Page 123, 130; Welcden v. Elkington, Plowd. 522; (with reference to the state of the law which existed then, as is shown in Manning's case, 8 Rep. 94 b, and Lampett's case, 10 Id. 46 b; ) Paramour v. Yardley, Plowd. 540; but especially the remarkable case of Green & ux. v. Hayman Rook & als., decided by Lord Notthingham, imperfectly reported in any one book, yet quite intelligible by combining the reports found in 2 Chan. Cas. 10, and in 2 Chanc. Rep. 169.] The latter combination of events, to wit, the termination of Sally's life, and of her surviving husband's widowerhood, in the lifetime of some child of Sally's, might happen, after the death of all the testator's children; so that I see nothing in the will to require it shall happen in the lifetime of any, or within twenty-one years (plus even twenty-one years more) after the death of all, born in the lifetime of the testator. But the former combination of events, to wit, the termination of Sally's life, and the termination of her surviving husband's widowerhood, either or both of such terminations being subsequent to the final extinction of her issue, and all happening in the lifetime of some one or more of the testator's children,--this combination of events--could not possibly happen but in the lifetime of one or more persons, described in the will, living at the death of the testator, and actually born (at furthest) within a period of gestation thereafter. And therefore the limitation over to the testator's children must be within the limits allowed by the Rule against Perpetuities.
This argument is assailable in one or the other of only two modes. First: As we have before seen, when Judge Joynes states the rule to be, " that where there is no gift to the objects, except in a direction to divide the subject among them" & c., " only such can take as answer the description at the period of division; " he subjoins a qualification, " unless a contrary intention can be collected from the will; " and it may be surmised that, in spite of all which has been heretofore said, a construction should be put on this will, in consequence of the testator's saying " among all my children," that would take in not only those living when the contingent division was to be made (if ever made), but also the descendants of such as were then dead or some representatives of them. This was not unperceived before, but a notice of it was purposely postponed until now; because the present seems the most appropriate place for suggesting, that such a construction would be perfectly suicidal, and, so far from accomplishing the testator's wishes in favor (supposing argumenti gratia that they were in favor) of more persons than his children living at the period of division, it would effectually frustrate his wishes in favor of any. Now, though " the rules of construction cannot be strained to bring a devise within the rules of law; " yet says Jarman, (On Wills, vol. 2, p. 743,) " it seems that where a will admits of two constructions, that is to be preferred which will render it valid; " and in divers passages (of the same work, vol. 1, pp. 257, 260 et seq. ) he shews that this, not only seems, but is certainly so. Quite as strong, perhaps even stronger, in the same direction, are the doctrines and decisions of our cisatlantic courts, ( Pond v. Burgh, 10 Paige 155; Mason v. Jones, 2 Barb. 144; Butler v. Butler, 3 Barb. Chan. Rep. 315; Dubois v. Ray, 35 N.Y. 165-166; Edwards v. Bibb, 43 Alab. Rep. 673-674; ) in one of which (Pruden v. Pruden, 14 Ohio St. 254), in delivering the court's opinion upon a will, it has been said, " when an instrument of any kind is open to two constructions, the one consistent [with], the other repugnant to, law, the former must always be adopted," (Co. Litt., 42 a-b; Case of Churchwardens of St. Saviour's, 10 Rep. 67 b; Hor ton's case, cited 3 Bulstr. 193, 1 Roll. Rep. 398; Atkinson v. Hutchinson, 3 P. Wms. 260; Archibald v. Thomas, 3 Cowen 290; 2 Pars. Contr. 1st edit. 12, 15-18; ) and this, it may be added, " ut res magis valeat quam pereat, " which, during many centuries, has been reposited among the maxims of our jurisprudence. On the present occasion, however, I am content with the more moderately pronounced doctrine, on which Knight Bruce V. C. acted in Turner v. Frampton, 2 Collyer 336. " Ought" said he, " the word ‘ survivor’ to be read other?' The bequest here would, I am apprehensive, be destroyed [under the Rule against Perpetuities] by such a reading; a consequence sufficient, as it seems to me, to prevent a departure from the correct and simple sense of the word." All I ask is an adherence to " the correct and simple sense of the word," children, in this case: As to which, besides authorities heretofore cited, some very recent and very strong may be seen in 2 Metc. Ky. Rep. 466, Churchill v. Churchill; 4 Id. 339, Sheits v. Grubbs; 30 Georg. Rep. 167, Willis v. Jenkins. --Second: It is objected by counsel opposite, that as the limitation over to Sally Stone's children is void for remoteness, therefore the limitation to the testator's children must also be void; and Mr. Pettit cites a dictum of Judge Green as conclusive upon this point. The doctrine thus broached being of extensive consequence, and involved in obscurity, nay more, in contradiction, by the language used respecting it in our books; I shall doubtless stand excused for discussing it with the fulness necessary towards a satisfactory solution.
The manner in which the question arose in the case of Griffith v. Thomson, 1 Leigh 321, was as follows: George Thomson, having two sons and a daughter, legitimate, and a natural son, by his will in 1803, shortly before his death, made provision for each, and then added: " In case all my children by my wife die without heirs," which, as the court held, was demonstrated by the context to mean issue, " my natural son Charles shall fall heir to my whole estate; and in case he also die without heirs, my estate shall be divided into six parts, and three-sixths shall go to my father's brothers that are alive, and the heirs of those that are dead (receiving no more among them than my father's brothers would have received had they been living,) two-sixths to go to C. Leland, S. Leland, L. Leland, H. Gaskins, and T. Legg, and the other sixth to go to my wife to be disposed of as she may think proper; but my wife is [first of all] to have the use of the whole so long as she lives, if all her own children," the testator's legitimate children, " die without heirs." All the testator's sons, legitimate and illegitimate, died after his death, without issue living at their respective deaths, (as the reporter's marginal abstract seems to say, the report is altogether silent as to this fact); his wife also died after him; all of them in the lifetime of his daughter, who moreover survived all her father's paternal uncles, and all the Lelands, and Gaskins, and Legg; and then died issueless, (as the reporter's maginal abstract states, in a silence of the report as to this fact also; ) leaving a will, by which she gave the bulk of her estate to Sally W. Griffith, whom she constituted executrix thereof. And upon a contest, respecting only the personalty, between the latter, in her character of legatee and executrix, on the one hand, and on the other a surviving child of one of the testator's paternal uncles who died before him, and the personal representatives of another child of the same uncle, and the respective personal representatives of the testator's other paternal uncles, who survived him, and of his widow, and of the three Lelands, and of Gaskins, and of Legg, the three judges of the Court of Appeals who sat in the case, reversing the decree of the Chancellor, held that the limitation after the death of the natural son without heirs, under which alone the parties here secondly mentioned could claim, was void in its creation, for remoteness; all of them concurring, that it was after an indefinite failure of heirs (issue) of the natural son. And Judge Green, whose opinion alone it is at present material to consider,--the case being irrelevant, but for his dictum relied upon by Mr. Pettit,--in the first place gave unanswerable reasons why the court should so decide; unless, indeed, it was an answer to them that the rule " stare decisis " required an adherence to the bad, but repeated, decisions of the same court (not the same judges) reported in 6 Munf. 174, 187, 301, and Gilm. 194, especially the decision in James v. McWilliams, 6 Munf. 301; and which decisions, it is probable, had governed the Chancellor in making his decree then undergoing revision. The main ground of all those previous decisions, and the sole ground of that in James v. McWilliams, was, that the respective limitations over were to persons in being in the lifetime of the several testators, without any words indicating a purpose of these latter to give an interest to the former of such kind as that, upon their several deceases, it would be transmissible to their respective personal representatives. In opposition to which Judge Green showed, first, that without such words, a bequest of personalty, not affirmatively restricted to some less interest, would carry the whole property therein owned by the testator, as effectually as an express gift to the legatee and his executors, administrators, and assigns, would; so that, in case of his death, it would be transmissible to his personal representatives, not only where he became possessed thereof in his lifetime, but also where he died (if after the testator's death, so as to preserve the bequest from lapsing,) even before the contingent event had happened by which his title would be perfected--wherever the bequest to him was legally valid; a plain consequence whereof would seem to be, that the decisions aforesaid reported in 6 Munf. and in Gilm., especially that in James v. McWillliams, rested upon untenable ground: And, secondly, that if the judges were to be regarded as having decided in those cases or any of them, that where a bequest expressed in that manner would not otherwise be legally valid, there it must be understood to have been given upon a failure of issue during the lifetime of such legatees over; then, apart from a serious objection that this would be " straining" the rules of construction for the sake of evading the Rule against Perpetuities, another perhaps more serious objection confronted the claimants under the bequest over, to wit, that the contemplated event, which was to give them an interest, had not happened, since there had not occurred, in the lifetime of the legatees, nominated to take under that limitation, the dying without issue which was to precede it; the daughter of the testator having outlived them all. And then, after giving these reasons, in the first of which all the three sitting judges, and in the second of whlch two of them (silente quoad hoc the third), expressly concurred, for reversing the decree; Judge Green proceeded to give yet another reason for it, as to which both of his companions were silent. If, therefore, this merely cumulative argument, (see Williams v. Fry, T. Raym. 237, 1 Mod. 86; Pollard v. Baylor, 6 Munf. 437; ) of a single judge, did contain any doctrine that were unsound, " it ought not to preoccupate or prejudicate a judgment." Foster v. Jackson, Hob. 53-54. But, so far from containing anything unsound, Judge Green's words, if properly construed, with reference to the case then before him, (Ram on the Science of Legal Judgment 43-44; ) furnished a ground upon which, exclusively, the decision made might have been solidly rested, and therefore, perhaps, ought to have been rested, since thus the court would have avoided calling in question, unnecessarily, their predecessors' decisions. He said (1 Leigh 338): " There is another ground, on which all the limitations over, in this clause of the will, were clearly void. That to the testator's natural son, which preceded all the others, was accompanied with words of perpetuity: If all the other children died without heirs, he was to fall heir to the whole estate; and if he died without heirs, then over to those now claiming. These words give him, upon the expressed intention of the testator, as absolute an estate as if the gift had been to him and his heirs, in terms. So that the limitation over to him, upon a general failure of issue, was clearly void. And, where a preceding limitation is too remote, all that succeed it, even although limited to take effect in good time, are defeated." Which, being interpreted secundum subjectam materiem, meant only this: The testator having given shares of his estate to his legitimate children, respectively, to have and to hold (in effect) to them and their heirs, executors, administrators, and assigns, forever, and having afterwards so provided as that, according to the terms of his will, if, at any time indefinitely future, there should not exist issue proceeding (in any, no matter how remote, generation) from their bodies, then, after their deaths and such extinction of their issue, the shares so given them should pass over to the testator's natural son or (if he were dead when such event happened, then to) his representatives; this limitation over, standing alone would be clearly void for remoteness: and although the same did not stand alone, but was associated with a subsequent limitation over, whose intended effect, in combination with the former, was to be such, that the limitation over in favour of the natural son and his representives should take effect in favour of the latter, if the natural son did not die, without issue, in the lifetime of certain other persons mentioned by name in the will, but if he did so die, then in favour of those persons and their representatives; this could not affect in point of validity, the combined limitations or either of them, with reference to the property given the first takers, since, whether the natural son died, or did not die, without issue, in the lifetime of any of these persons, still the consequence upon the first takers and those claiming under them was to be just the same. Unless the natural son died issueless within the compass of a life in being at the death of the testator, the limitation over to him was not to be defeated in favour of these other persons; and so the limitation over in their favour was " limited to take effect in good time" as far as concerned turning into their channel what had been previously destined for him and his representatives, under the first limitation over; but still it did not affect that first limitation, in regard to the operation thereof towards diverting into some fresh channel what was given to the first takers, whenever, if ever, they should all be dead and all their posterities extinct. Thus, equally with as without, the provision in favour of the Lelands and the rest, and no matter what might be the construction put upon that provision, whether as requiring, or as not requiring, that in their lifetimes the natural son should be dead without issue, before they could take; the shares of the testator's legitimate children would be, by the terms of his will, put extra commercium during an indefinite period; so that, as long as there was issue remaining of any of them, after their deaths, no purchaser of those shares, under their title, would be sure of a good title, or of one that would not, at any moment afterwards, fail by the failure of such issue. This is precisely the mischief, which the Rule against Perpetuities was introduced to prevent or suppress (Butl. Fearne 430; Sm. Ex. Int. § 707; ) and therefore, by that Rule, the legitimate children took in their respective shares, from the first, interests which were absolute, unrestricted, unfettered with any (valid) limitation over in favour of any person or persons. And correspondent to this was an opinion of Sir John Leach M. R., delivered little more than a year before, in Palmer v. Holford, 4 Russ. 403.
But in this instance that happened to Judge Green, which near two thousand years ago was noted as of common occurrence, and which theretofore had, and since has, happened, and forever will happen, constantly: " Brevis esse laboro, Obscurus fio. " Had he said, " when a preceding limitation is too remote, all that succeed and depend upon it, even although limited to take effect in good time so far as it (alone ) is concerned, are defeated; " he would have said all, that the decision, which he was concurring to make in the case before him, required, and what was perfectly true. This would accord with what was said by Buller J. in Robinson v. Hardcastle, 2 Durnf. & E. 251: " That if a subsequent limitation depended upon a prior estate, which was void, the subsequent one must fall together with it; " but " if the subsequent limitation was not dependent upon the other, it might then take place notwithstanding the first was bad." And it seems to me that it is not treating Judge Green with perfect fairness and candour, to make him responsible for his dictum in the fullest extent thereof, according to the broadest sense of the words used. But, except for the sake of doing him justice, it no way concerns me how his dictum is understood. In any sense of it prejudicial to my cause, it is demonstrably not law.
Taken in the sense necessary for Mr. Pettit's purpose, it derives no support from either of the cases Judge Green cites; to wit, Proctor v. Bp. Bath & Wells et als., 2 H. Blackst. 358, and Chatham v. Tothill, 7 Bro. P. C. edit. Toml. 453. I have before observed upon the fact, that in the first of these cases the limitation over, condemned for remoteness, was to the defendant Moore and " his heirs and assigns forever; " under which, though Moore himself had died the day after the testatrix, yet his representatives, so far as the terms of the gift were concerned, might have taken at never so remote a period, and therefore the gift, limited in that manner, was not " limited to take effect in good time; " as Judge Green had just before demonstrated in some remarks (1 Leigh 335-337), the substance of which I have before given. It is noticeable, that before the case of Proctor v. Bp. Bath & Wells et als. was brought into court, Mr. Fearne was consulted upon the title, (Fearn. Ex. Dev. edit. Pow. vi; ) and gave an opinion which accorded exactly with the decision afterwards rendered; this opinion is published by Powell in his edition of Fearne, (re-printed at Dublin, 1796, pp. 455-463, being the conclusion of a long editorial annotation which commences in p. 399; ) and it indicates clearly that Mr. Fearne considered the limitation over to be void, for the sole reason that it offended the Rule against Perpetuities, by being in itself too remote. But the best explanation of the decision, I have anywhere seen, is in the reported argument of counsel in the case itself. They said: " It may be perhaps contended, on the other side, that though the devise to the son of Thomas Proctor should be void, as being too remote, yet that the devise over to Thomas Moore may take effect as if the prior devise had not been made. " To this supposititious argument mark the reply given,--not that " the prior devise" being too remote, therefore the other must be void,--no; " but the devise to Moore is liable to the same objection, on account of the remoteness of the contingency, as the other; for, supposing there were no previous devise to the son of Proctor, the devise to Moore would be to him, [his heirs and assigns, forever,] if Thomas Proctor should have no son in orders; but no time is fixed for his taking orders. " Proctor might have many sons, the last of whom might be posthumous; by the canons of the church, none of them could take orders before completing his twenty-third year, unless by special favour; by such favour he might as soon as he was twenty-one, (Burn's Eccl. Law, tit. Ordination, iv., vol. 3, p. 27, 2d edit.; ) but over the former of these ages he might at any time during his life: And, because he might, therefore the devise over in favour of Moore must wait for the death of all Proctor's sons, no matter when born, nor what longevity the longest liver of them should attain. This necessity clearly made the posterior devise even more remote than the prior.--In his own words, not affecting to give all or any words of all the judges or of any judge, the reporter tells us: " The court (absent Mr. Justice Buller) were clearly of opinion that the first devise to the son of Thomas Proctor," --the first or other son of T. P. that should be bred a clergyman and be in holy orders,--" was void from the uncertainty as to the time when such son, if he had any, might take orders; and that the devise over to Moore, as it depended on the same event," --rather on the non -happening ever of that event, --" was also void; for the words of the will would not admit of the contingency being divided, as was the case in Longhead v. Phelps, 2 Black. 704," --that is to say, the words " in case Thomas Proctor should have no such son" could not be read as if they were " in case he should have no son, OR that none of the sons he might have should be bred a clergyman and be in holy orders; " --" and (continues the reporter, assigning in his way the reasons of the court,) there was no instance in which a limitation after a prior devise, which was void from the contingency being too remote, had been let in to take effect, but the contrary was expressly decided in the House of Lords in the case of The Earl of Chatham v. Tothill, in which the judges founded their opinion on Butterfield v. Butterfield, 1 Ves. 134." --I have thus given all that is preserved of the reasons attributed to the court, for the sake of shewing that the dictum of Judge Green, understood in any sense at all hurtful to my cause, has no support, not only from what was decided, but also from what was said, in that case. The nearest approach to such support is in the words, " there was no instance in which a limitation after a prior devise, which was void from the contingency being too remote, has been let in to take effect," & c. Of course, if there had been no instance whatever, there could not have been any wherein such a limitation was allowed to prevail, " even although limited to take effect in good time; " but, as neither these words (of Judge Green), nor any like them, are used, the statement ensuing attributed to the court by the reporter, that " the contrary was expressly decided in the House of Lords," does not import any negation of the validity of such a limitation as that in our case to the children of the testator. Nor is there anything in the case of Chatham v. Tothill, or in the case of Butterfield v. Butterfield, or in any dictum in either, that tends to damage, in any degree, my contention. [To prove this Mr. Green examined and commented upon those cases; but it is thought too manifest to need a report of his remarks upon them.] Similar to the decision in the case in 2 H. Blackst. 358, are the decisions in Bull v. Pritchard, 1 Russ. 213, before Lord Gifford M. R., and again 5 Hare 567, before Sir James Wigram V. C., (see 3 Myl. & K. 411, Bland v. Williams; ) and in Joy v. Aspinwall, 23 Engl. L. & E. Rep. 453, 18 Jurist 284.
In a case, the facts whereof are material to be stated with some minuteness, for a reason that will be presently seen, by settlement previously to the marriage of John James and Mary Barrow, widow, certain personal property (which was hers) was conveyed to trustees, for her sole and separate use during the coverture, and that, after her decease, the trustees should stand possessed " for all and every the child and children of the said Mary, by John Barrow her then late husband, or by John James her said intended husband, in such shares and proportions," & c. " as she should" appoint; and, in default of her appointment, then to divide (whatever was not appointed) " unto and amongst all and every the child and children of the said Mary," without distinction of her two marriages. Subsequently she made an appointment in favour of a son by her first marriage, for his life, and, after his decease, upon trust for such wife and children or child of her said son as he might leave behind him; " but in case" he " should die without leaving a wife or child him surviving, then, after his decease, in trust to assign the same unto her (Mary James's) daughter Frances," who was a child of the first marriage, " her executors and administrators." And Sir Richard Pepper Arden (afterwards Lord Alvanley) M. R. decided, first, that the appointment in favour of the son's wife and children was void, because they were not objects of the power, as had been clearly settled by previous decisions past any dispute, (2 Sugd. Pow. 6 th edit. 273-278; ) but, secondly, that nevertheless the limitation over in favour of the daughter, who was an object of the power, was valid, and would take effect in case the son should leave neither wife nor child surviving him; though, should he leave either, it would fail, simply because in that case the contingency would not have happened, in which (alone) the property was appointed over. Crompe v. Barrow, 4 Ves. 681. A decision ever since approved. 2 Sugd. Pow. 6th edit. 78. Chance on Powers, § 1581. Why, then, should not an executory bequest, unobjectionable on the score of remoteness in itself, be valid notwithstanding it comes in a will after, but without any manner of dependence upon, another executory bequest which is void for its excess of remoteness? Can the cause, which makes the limitation I have last mentioned void, be material in this respect, when it (the cause) has, towards the other limitation, no sort of connexion, either direct, or indirect (through some dependence of the one limitation upon the other?) On this point Mr. Jarman's opinion was always clear; and both in his edition of Pow. Dev. vol. 1, p. 401, n., and (sixteen years afterwards) in his work On Wills, vol. 1, p. 245, he put approvingly the very case I have last cited, as an illustration and proof that, while " all limitations ulterior to, or expectant on, " a devise which is void for remoteness, are also, for that reason, void; yet it is otherwise where " the devise over is limited to arise on an alternative event, one branch of which is within, and the other is not within, the prescribed limits." His words are: " In Crompe v. Barrow a feme covert, under a power in her marriage settlement, bequeathed personal property to her son C. B. for life and, after his decease, to his wife and children, but in case he should die without leaving a wife or child him surviving, she devised it over to her daughter F. J. The bequest to the wife and children was held to be void, under the rule that the person claiming under an appointment must be such as would have been competent to take, if named [indicated] in the deed creating the power, on which ground the legatees in question, as the children of persons [a person, C. B.] then unborn, were not competent. It was then contended, that the ultimate limitation to F. J. must fail with that to the wife and children; but Sir R. P. Arden M. R. held otherwise; there were, he said, two alternatives; if C. B. left no wife or children, the limitation over, being to a good object, should take effect; if he left a wife or children, it could not take effect. It is observable that, as C. B. the son was not in existence at the time of the execution of the deed creating the power (which in fact was a settlement previous to the marriage of his parents ), the gift over to F. J., on the event of his [C. B.'s] death under the circumstances mentioned, though made to a competent person [that is, a person within the power,] was liable to objection on account of the remoteness of the event, on the principle acknowledged in the case (and, which, indeed, is indisputable), that the interests given by the appointment must be such as would have been good, if inserted in the power itself. The point seems to have escaped the observation of the very able judge by whom the case was decided." In this instance it was Mr. Jarman, not Lord Alvanley, that was inadvertent; and, from sheer want of attention, he fell into very gross mistakes of fact--in which, however, he was followed implicitly by Mr. Lewis in his very much bepraised work (9 Law Review 419, 423,) On Perpetuities, pp. 504-5, and note u; --but from all his expressions it is manifest, that, taking the facts to be as he supposed they were, he considered that Lord Alvanley would not have erred in holding the final limitation to be valid, in spite of the previous limitation being void for remoteness, if the final limitation had been, in the words of Judge Green, " limited to take effect in good time," as (for example) if it had been " limited to take effect" upon the death of C. B. before attaining his age of twenty-one years and without leaving wife or child surviving him. And accordingly Mr. Preston (Abstr. vol. 2, p. 170,) lays it down that, " though a limitation over, after and expectant on a limitation which is too remote, is generally, for that reason, void; yet, if in express terms the limitation over is to take effect, or [else] to fail, within a time to fall within the Rule against Perpetuities, the limitation over will be good; " referring to this case of Crompe v. Barrow, 4 Ves. 681, and to Beard v. Westcott, 5 Taunt. 500, ( perperam pro 393.)
The certificates of the judges of the Common Pleas in the case last mentioned were a full and clear authority for this statement of Mr. Preston; which, when he made it (1818), was contradicted by nothing I am aware of, in the shape of authority. Circumstances, however, which occurred in the sequel, make it proper to trace that case, from its commencement till its close, with precision. In what manner it at first began, we are not anywhere told, and can only conjecture. A testator, seised of freehold estates and possessed of leaseholds for long terms of years, devised and bequeathed them to the defendants Westcott and Johnson (and another since deceased), upon trusts, as follows: For the benefit of his grandson John James Beard and his assigns, during the term of ninety-nine years, if he should so long live; and immediately after his decease to the use of his (the said grandson's) first son and his assigns, for the like term of ninety-nine years, if he should happen so long to live, " and so on, in tail male, to such first son lawfully issuing forever; " and " for want, and in default, of such issue of such first son, then to the use and behoof of the second and all and every other son and sons of the" said John James Beard, " severally, successively, and in remainder, one after another, as they should be in seniority of age and priority of birth, and the issue male of such son or sons lawfully issuing, for the like term of ninety-nine years only (in case he should so long live)," & c. & c.; " and in case there should be no issue male of the" said John James Beard, " nor issue of such issue male, at the time of his death, or in case there should be such issue male at that time and they should all die before they should respectively attain twenty-one, without lawful issue male, then that" the testator's grandson Joseph Beard " and his assigns might receive and take the rents & c. thereof for the term of ninety-nine years, if he should so long live," with limitations to his first and other sons and their issue male, precisely similar to those in favour of the first devisee's male descendants; with ulterior limitations upon default of issue male of Joseph Beard, expressed in identically the same terms as the default whereon the limitation in his favour was grounded. John James Beard was plaintiff in a chancery suit, and the defendants were the (surviving) trustees together with others claiming or who might claim under the limitations after those in his favor; whence it appears inferrible that the suit was instituted (after a fashion very common in England, uncommon here,) to have the (valid) trusts of the will declared, ascertaining thereby the rights of the parties under it. And in answer to questions sent them, upon this case, the judges of the Common Pleas certified their unanimous opinion, that John James Beard took an estate for ninety-nine years, determinable with his life, in the freehold estates, and also in the leasehold estates, if these latter should so long continue: that upon his death, leaving one or more sons, his first son would take a like estate for a term of ninety-nine years, determinable with his life, in the freehold estates, and in what should then remain of the respective terms for which the leasehold estates were held; " that in the event of there being no son or sons of the said John James Beard, nor issue male of such son or sons, living at the death of the said John James Beard, or there being such issue male at that time, [if] they shall all die, before they attain their respective ages of twenty-one years, without lawful issue male, the testator's grandson Joseph Beard will take a like estate in the said freehold and leasehold property, determinable as aforesaid; that upon his death, leaving one or more sons, his first son, in the events above mentioned, will take a like estate therein for ninety-nine years, determinable as aforesaid; and that in the event of there being no son or sons of the said Joseph Beard, nor issue male of such son or sons, living at the death of the said Joseph Beard, or there being such issue male at the time, [[[[[if] they shall all die before they obtain [attain] their respective ages of twenty-one years," other devisees, as directed by the testator, would take: adding, " We are also of opinion that all the other devises of those estates are void," of which, it will be remembered, there were divers anterior to the limitation in favour of Joseph Beard, and anterior to the limitation in favour of those who were to take upon such default of his issue male; these being void under the Rule against Perpetuities, for none other objection whatever was pretended against them. When this certificate was returned into Chancery, the case was argued by Romilly and Hayes in support of, and by Sugden against, it; and, " on the 17th Dec. 1811, the Master of the Rolls gave the following judgment: ‘ This case stood over, in consequence of a suggestion that the certificate of the court of Common Pleas involved in it the decision of a new question, which had not undergone any particular discussion, or received any particular consideration, in that court; namely, how far the validity of a limitation over, by way of executory devise, is affected by the circumstance that the period of twenty-one years, after the duration of an estate for life, has not any connection whatever with the minority of any person taking an interest under the preceding limitations. Now I do understand, that the question certainly did not receive any particular consideration in the court of Common Pleas, it being taken for granted that the rule upon this subject stood as it is commonly laid down in the books; namely, that the executory devise falls within the allowed limits, if the event upon which it is to take place must happen within a period of twenty-one years after the life or lives in being. I am not aware, however, that the point has been directly decided; and Lord Alvanley's doctrine in the case of Thellusson and Woodford, [4 Ves. 227, see p. 337,] is against the addition of twenty-one years, except by way of provision for the circumstance of the devisee being under age, or in ventre sa mere, at the expiration of the life or lives in being. And, as the question has now been raised, and as there is that degree of sanction to the doubt, it does seem to me desirable that it should be set at rest by the decision of a court of law; so, therefore, I propose to send the case back again to the court of Common Pleas, to call their attention to the point, that they may have an opportunity of pronouncing an explicit opinion upon it. I have received this information from some of the judges.’ The case was accordingly sent back to the court of Common Pleas; who refused to hear it argued, until the point upon which their opinion was required was stated. Thereupon the following question, with the approbation of the Master of the Rolls, was stated to be the question for the opinion of the court," (Sugd. V. & P. 7th edit. 807-808, n.; 11th edit. 1108-1110, n.; ) and which was framed by Sugden, as he tells us (Sugd. Prop. 313, note u: ) " How far the limitations over in the event of there being no son or sons of John James Beard, nor issue male of such son or sons, living at the death of the said John James Beard, or there being such issue male at that time, [if] they should all die before they attained their respective ages of twenty-one years without lawful issue male, were affected by the circumstance, that they were to take effect at the end of an absolute term of twenty-one years after a life in being at the death of the testator, without reference to the infancy of the person intended to take, or by the circumstance, that there might be issue of John James Beard living at his death, to whom the estate was given by the will, but who would be incapable of taking, according to the above certificate, for whose death under twenty-one the limitation over, in the event before mentioned, must await." And after full argument and long deliberation, the judges, in Michaelmas term 1813, returned, to this additional and pointed question, an answer, in the terms of the question itself, reaffirming their former certificate. 5 Taunt. 393-414. Thus far, we may remark, apparently no judicial doubt existed in any quarter, respecting the soundness of the deliberately formed and reiterated opinion of the court of Common Pleas, that a succeeding limitation might and would be valid, if " limited to take effect in good time," though limitations preceding it were too remote. But, as Sugden is reported to have said 8 March 1826, in Bengough v. Edridge, 2 Cond. Engl. Chanc. Rep. 112, (from the report in 1 Simons) " when the case was brought on before the Lord Chancellor, upon the judge's certificate, his lordship, though not without reluctance, granted a case to the King's Bench; " that is to say, conceded to counsel's importunity, that a case (stated) should be sent to the last mentioned court for its opinion. This was done; and the case was there argued, at the sittings before Michaelmas term 1821, by Sugden against the validity of the limitations over, and by Preston for the other side, on two questions, which were, in substance and almost verbatim, the same as the questions the judges of the Common Pleas had answered. And, after time taken for deliberation, the judges of the King's Bench, in Trinity term, 1822, sent their certificate in these words: " This case has been argued before us, and we are of opinion that John James Beard, the grandson and heir at law of John James the testator, took, under the said testator's will, an estate for ninety-nine years, determinable with his life, in the freehold estates devised to him in the first instance; and also in the leasehold estates devised, if they should so long continue; and that, upon his death, leaving one or more sons, his first son will take an estate for ninety-nine years, determinable with his life, in the freehold estates, and what will then remain of the terms for which the leasehold estates are held. We are also of opinion that all the limitations, subsequent and expectant upon the limitation to the first son of John James Beard, arc void. " 5 Barn. & Ald. 801-815. The cause then (in November 1822) " came on for further directions," in the court of Chancery; when " Mr. Hart and Mr. Stephen contended, that the court of King's Bench had not returned a sufficient answer to the case; and that it could not be collected from their certificate, whether the circumstance, that the limitations were to take effect at the end of a term of twenty-one years, without reference to the infancy of the person intended to take, created such a suspense of the vesting as to render the limitations void. Mr. Sugden, for the plaintiff, insisted that the conclusion to which the court of King's Bench had come involved the decision of the point, [And] the Lord Chancellor [said]: It is impossible that the court of King's Bench should not have considered that point. The certificate of that court appears to me to afford a substantial answer to the questions put; and, under the circumstances of this case, I think the best thing I can do is to confirm it, and thus to help the case to the House of Lords, if the parties think it right to take it there. The inclination of my opinion is, that the court of King's Bench is right." Turn. & Russ. 25. The case did not proceed further; and what it did ultimately decide was long very much a puzzle. In Mr. Jarman's edition (1827) of Pow. Dev. vol. 1, p. 393, n., it is manifestly treated by that learned writer as a decision in favour of Lord Alvanley's opinion in
s opinion in Thellusson v. Woodford; as is rendered the more certain by the remark he makes upon what he says is a " note of Mr. Canning's," and which is indubitably so, though counsel (probably Preston), arguendo before the House of Lords, subsequently claimed benefit from it, as a note by Mr. Butler and indicating Mr. Butler's opinion. 1 Cl. & Fin. 400, Cadell v. Palmer. It is distinctively marked as one of Mr. Canning's additions, (see Butl. Fearne, pref., p. ix, edit. Philad. 1826; ) and is in these words (subjoined to Butler's note in a previous edition, which concluded with quoting Lord Alvanley's dictum in Thellusson v. Woodford ) : " But in the subsequent case of Beard v. Westcott, 5 Taunt. 393, it was held, that an executory devise was good, though it was not to take effect till the end of an absolute term of twenty-one years after a life in being at the death of the testator, without reference to the infancy of the person intended to take." Upon which the remark of Mr. Jarman (in 1827) was, " it should be observed, that in the last edition of Mr. Butler's Fearne, 442, n., the position founded on the certificate of the Common Pleas, has inadvertently been suffered to pass uncorrected " ; clearly showing upon what point, in his judgment, the certificates of that court and of the court of King's Bench clashed. Afterwards a case, which made a decision upon that point inevitable, was decided by Sir John Leach V. C. in 1827, under the name of Bengough v. Edridge, 1 Sim. 173; and by the House of Lords (upon appeal from his decree), in 1833, under the name of Cadell v. Palmer, 7 Bligh N. S. 202, 1 Cl. & Fin. 372, 10 Bingh. 140, 3 Moore & S. 571. In that case Sugden and Preston were again counsel on oppposite sides, and the former insisted, both before the Vice Chancellor, (2 Cond. Engl. Chan. Rep. 112,) and in the House of Lords, (1 Cl. & Fin. 394-395, 408,) that the King's Bench and Lord Eldon had decided Beard v. Westcott in accordance with what we have seen was Mr. Jarman's estimate of the result, and in accordance also with what had been Sugden's published opinion from an early period of his professional life, (Sugd. V. & P. 556-559, n., edit. 1806; 613-616, n., edit. 1808; Gilb. Us. 260, n., edit. by Sugd. 1811; ) while the latter, in (at least,) seeming abandonment of the doctrine laid down in his work On Abstracts which I have before cited, explained away the final decision in Beard v. Westcott thus: " To understand the grounds of the certificate [by the judges of the King's Bench] in that case, it is necessary to consider the principle of the law applicable to perpetuities; the rule is, that if one limitation is too remote, every subsequent limitation must also be too remote, and for that reason void. In Beard v. Westcott the party [[[[testator] attempted to introduce in the alternative (if the expression may be used) another gift after one which was too remote; and the language of the judges is adapted to that state of the case. The decision of the court of King's Bench is reconcileable with the rules of law, because it proceeded upon the ground, that a gift made by way of substitution, for one which is too remote, is as bad as that for which it is attempted to be substituted. That is the whole result of the certificate, and of the decision in Beard v. Westcott. " 2 Cond. Engl. Chanc. Rep. 100. And when the judges, attendant upon the Lords in Cadell v. Palmer, resolved that, upon the point then in judgment, they would follow the certificates from the Common Pleas in Beard v. Westcott, Bayley B., who delivered their opinion, said: " Those certificates [the last of which was returned in November 1813] stood unimpeached until 1822, when the same case was sent by Lord Eldon to the court of King's Bench; and that court certified that the same limitations, which the Common Pleas had held valid, were void, as being too remote; but the foundation of that certificate was, that a previous limitation clearly too remote, and which was so considered by the court of Common Pleas, made those limitations also void which the Common Pleas had held good. The subsequent limitations were considered as being void, not from any infirmity existing in themselves, but from the infirmity existing in the preceding limitation; and, because that was a limitation too remote, the others were considered as being too remote also. Whether the court of King's Bench gave any positive opinion upon that, I am unable to say. I think the court of King's Bench would have taken much more time to consider that point than they did," --we have seen that they took rather more than six months after hearing arguments,--" and have given it greater consideration than it received, if they had intended to differ from the certificate that had been given by the court of Common Pleas; but, when it became totally immaterial, in the construction they were putting upon the will, to consider whether they were or were not prepared to differ from the court of Common Pleas, it is not to be wondered at that that point was not so fully considered as it might otherwise have been." 3 Moore & S. 584, 1 Cl. & Fin. 420-421, 25 Engl. C. L. Rep. 69-70 (from the report in 10 Bingh. 140-156). According to the report in 7 Bligh N. S. 238-9, the learned and at that time aged Baron, sole survivor in Westminster Hall of the four judges who had signed the certificate from the King's Bench in Beard v. Westcott, said: " But the foundation of this certificate was, that a previous limitation clearly too remote, and which was so considered by the court of Common Pleas, made those limitations also void which that court had held good; and the question, whether the limitation of twenty-one years absolutely was valid after a life in being, did not receive that full consideration which it would otherwise have done, if the determination upon that point had not been superseded by the determination upon the other." This may perhaps express more clearly what (on the whole) was meant; but it cannot be doubted that the venerable judge spoke substantially the words reported, with almost no variation, in three other reports as I have cited them: And these plainly prove that he would not, at that distance of time, venture to state positively what was the ground on which the court of King's Bench proceeded. Nothing that is extant, contemporaneous with the certificate itself, tends to shew that the court then relied at all upon the ground afterwards suggested by Mr. Preston. Nevertheless we have now met with words, delivered ex cathedra, which afford countenance to Judge Green's dictum in the broadest sense Mr. Pettit may choose to put upon it. But we have not met with a decision, which at all favours that gentleman's cause,-- I mean a decision that can abide criticism,--though we should agree that the certificate of the King's Bench, and even that Lord Eldon's inclination of opinion, in Beard v. Westcott, rested upon the ground indicated by Mr. Preston. Apart from what seem preponderant authorities already produced, including one certificate of the Common Pleas when Lawrence J. was in that court, and another when Gibbs J. (afterwards Chief Baron, subsequently Chief Justice,) had succeeded him in it, upon that identical case; I have yet to produce other authorities, which appear quite overwhelming.
There is a case first reported before Sir Wm. Grant M. R., in 8 Ves. 12, Cambridge v. Rous, wherein a testatrix bequeathed personal property to trustees, upon trusts declared in these words: " To the sole and separate use of my sister [Mrs.] George Cambridge during the term of her natural life, and from and after her decease to divide the same equally between my said sister's children, when they shall severally and respectively have attained the age of twenty-seven years; the share of such as shall die under that age to go to the survivors in the same manner as his or her original share; the dividends or any portion thereof, at the discretion of my executors or the survivor or survivors of them, to be employed in the education of such children. In the event of my sister Mrs. George Cambridge not leaving any child or children at the time of her death, or of the death of all the children under the age of twenty-seven years, I give and bequeath the whole" over. And in all editions of Vesey Junior's Reports, from the first English, to the last American (industriously blazoned as Mr. Charles Sumner's), there is a marginal note importing that the court held " the limitation over too remote." Which has also been disseminated in 2 Bridgm. Dig. 244, 2 Chitt. Eq. Dig. 808, and doubtless in other books. But nothing of the kind happened then; and the precise reverse thereof happened afterwards. The bill was filed by Mrs. George Cambridge and her husband, praying (among other things), that the limitations over, after the death of the feme plaintiff, might be declared too remote and void, and that (as a consequence of such declaration) the property might be decreed her as next of kin of the testatrix, or that it might be secured for such of the trusts of the will as were capable of taking effect. And the plaintiffs' counsel, among the most eminent at the chancery bar, said (as reported 8 Ves. 17--18) that, with respect to the question, whether the bequest over, after the estates " for life" (--so, but it seems by mistake,--) to Mrs. Cambridge's children, when they should severally have attained the age of twenty-seven years, & c. was too remote, " there was a double contingency in view; of which one [Mrs. Cambridge's] death without leaving children living at the time of her death, cannot be impeached. That point, however, it is unnecessary to decide, till the event is determined, whether she shall leave children at her death or not." Respecting it, opposite counsel said not a word. And when Sir Wm. Grant spoke to it, the reporter (probably through misapprehension on his own part, see 1 Jarm. Wills. 247), makes him deliver himself thus blunderingly: " The next question" is " whether the bequest over, of the property given to Mrs. Cambridge for life, be not too remote; and if so, in all events she insists, the capital is undisposed of. It is admitted by the plaintiff, that a declaration at present in her favour would be premature; for it is said, upon one contingency, if she dies leaving issue at her death, it will be good," the precise opposite of what the counsel should have said, and of what it is reported they did say. " But (continues the report of Sir Wm. Grant's remarks) in that case [of her leaving issue, not of her dying without leaving any,] it is equally clear, it will be too remote; the children not being to take till the age of twenty-seven. All, that is necessary to be done at present is, either to direct the dividends to be paid to Mrs. Cambridge for life, with liberty to apply upon her death, or to secure the fund." 8 Ves. 24-25. So that it is certain, no decision upon the point was then made, whatever the Master of the Rolls may have thrown out concerning his present impressions respecting it; as to which it is almost certain he did not say what the reporter attributes to him. But let opposite counsel make the most he can out of such (whether genuine or only putative) utterances, in face of the fact that that identical limitation over was, in due time afterwards, decided to be valid, and did actually take effect upon Mrs. Cambridge's death without issue then living. Unfortunately there has not yet been an American reprint of 25 Beavan, nor I believe has any copy of the London edition ever appeared in this part of Virginia: nevertheless, sufficient verification of the fact just now stated is found in the representations given in Law Journ. Dig. 1855-60, p. 375, and in Fisher's Digested Index 1859, p. 242, respecting the case of Cambridge v. Rous in 25 Beav. 409. Besides which, in numerous other instances identically the same legal proposition has been adjudicated: to wit, that where a limitation void for remoteness is followed by limitations over, not dependent thereon, but substitutionary for it, and which are contingently to take effect in an alternative, one branch whereof is within, the other not within, the duration allowed by the Rule against Perpetuities; there such limitations over are good in creation, and will take effect in event if there shall come to pass that branch of the contingency, which is not too remote. One remarkable case of this sort was Leake v. Robinson, 2 Meriv. 363, decided by Sir Wm. Grant himself: the reporter's abstract of which needs correction, as both defective and erroneous. It should be: " Gift [by will] of real and personal estate, to trustees, upon trust to apply the rents and dividends (or so much [thereof] as they should think fit) to the maintenance & c. of [testator's grandson] W. R. R. until twenty-five; then to permit him to receive the same during his life; and, after his death, to apply the same (or so much & c.) to the maintenance & c. of all and every the children of W. R. R. until twenty-five respectively; then upon trust, to assign and transfer to such children so attaining twenty-five; ‘ and in case W. R. R. shall die without leaving issue living at the time of his death, or leaving such issue and all die before twenty-five, upon trust to pay & c. unto and among all and every the brothers and sisters of W. R. R. [some of whom might be born after the testator's decease,] share and share alike, upon their attainment of twenty-five or marriage respectively. Followed by a gift of RESIDUE, upon trust, as to one moiety, to permit the testator's daughter [Mrs. Robinson, the mother of W. R. R.] and her husband to receive the rents & c. during their lives in succession, and, after the death of the survivor, to [their] children (except W. R. R.) in the same manner as in respect to THE FORMER GIFT: And, as to the other moiety, upon like trust for the testator's daughter [Mrs. Mitford], her husband, [and the child or children (if any) of them]: With survivorship between the respective grand-children [of the testator]: And, in case of the death of either of [his said] daughters without leaving issue living at her decease, then to the children of the surviving daughter. --Held, that the limitation to the brothers and sisters of W. R. R., in default of issue [of him] living to attain twenty-five, was intended to include all his brothers and sisters, [whether born or not born in the lifetime of the testator, who should be] living at his [W. R. R.'s] death, [provided they lived till the period of vesting in them, by the death of all W. R. R.'s issue before attaining twenty-five,] and was consequently void for remoteness.--Held, vested interests at twenty-five in every instance, notwithstanding different expressions, there being no antecedent gift, of which it could have been the testator's intention merely to postpone the enjoyment; the gift being oniy the direction to pay at twenty-five.--[Held, Mrs. Mitford] having died leaving issue, the moiety of the residue intended for her children [was] undisposed of, as being [a limitation] void for remoteness, [because it was not to vest in them till their respective attainment of twenty-five; but] the other moiety [[[[[was] in contingency during the life of [Mrs. Robinson], and, if she should die without issue, [it would] be well given over to the children of [Mrs. Mitford, ‘ there being nothing in this bequest to make it too remote; and it being evident that the testator used the words surviving [ daughter ]--in the same sense as other [ daughter ]. But'-- per Sir Wm. Grant M. R.--‘ if Mrs. Robinson shall leave issue, this half also will, at her death, be undisposed of, and divisible among the [testator's] next of kin,’ (2 Meriv. 394,) because in that event the limitation to her own issue would come into play, which limitation is, for the same reason as the limitation to Mrs. Mitford's in a similar event is, void for remoteness.]" See also Minter v. Wraith, 13 Sim. 52; Goring v. Howard, 16 Id. 395; Burley v. Evelyn, Id. 294-295; Doe v. Challis, 1 Ell. & Ell. (Am. edit.) 1091, 7 H. L. Cas. 531, (confirming the judgment of the Queen's Bench, which had been reversed in the Exchequer Chamber, 18 Ad. & Ell. N. S. 224, 231, 2 Engl. L. & E. Rep. 215, 10 Id. 429); Fowler v. Depau, 26 Barb. 224; Akerman's adm'rs v. Vreeland's ex'or, 1 McCarter 23; Armstrong v. Armstrong, 14 B. Monr. 333.
Now, in the case of Beard v. Westcott the limitation over, after, but not dependant on, prior limitations void for remoteness, was, by the terms of the will, to take effect " in case there should be no issue male of" the first taker, " nor issue of such issue male, at the time of his death, OR in case there should be such issue male at that time, and they should all die before they should respectively attain twenty-one, without lawful issue male," --which last expression, used in such connexion, it is settled, means without issue living at such death under the age of twenty-one. Doe v. Johnson, 8 Welsb. H. & G. 81, 16 Engl. L. & E. Rep. 550; 2 Jarm. Wills 428-429. And therefore the certificate of the judges of the King's Bench, if rested upon the ground one of them (Bayley) was afterwards, as we have seen, disposed to rest it, necessarily collides with all this mass of authority; since the first branch of the contingency was unexceptionably within the line of perpetuity. Besides which, it seems to me most certain, if not perfectly manifest, that it would have been erroneous, though the contingency had been single, consisting of only what was the second branch thereof; and that the sole ground on which it can be rested, creditably to the judges who gave it, is that which, in the beginning, Mr. Jarman supposed was their real ground. In favour of it much might be well said, until the final decision in Cadell v. Palmer, as is shown by the reported arguments in that case, (see also 1 Atkins. Conveyance. 44-49; ) and in giving his opinion therein, as chancellor, in the House of Lords, Lord Brougham said afterwards in another case, he showed (he thought), very clearly, that the doctrine of an absolute term of twenty-one years had originated in a manifest error, (9 Cl. & Fin. 598, Phipps v. Ackers; ) which remark is repeated, with apparent approbation, by one whom the book it is repeated in shows (passim ) to have been Lord Brougham's open undisguised unfriend. Sugd. Prop. 315. The decision in Cadell v. Palmer left, in truth, for such a certificate thereafter, as the court of King's Bench had given in Beard v. Westcott, no ground whatever.
The most plausible vindication, that can be suggested, of it, on any different ground, was offered by Lord St. Lonards in the case of Monypenny v. Dering, 15 Engl. L. & E. Rep. 559; wherein I am compelled to quote his language from perhaps not the best report of it, not having access to the reports of De Gex, Macnaghten & Gordon; in whose second volume (p. 145 et seq. ) the same case is reported. He said, as far as the report before me can be relied upon: " In that case," Beard v. Westcott, " successive life estates were given to a grandson and his unborn issue, which were clearly void beyond the first son; then followed a disposition," that in the two-fold or alternative contingency which I have just now re-stated, " the estate was to go over. The case was sent to the court of Common Pleas, and they were of opinion that the gifts after the gift to the unborn son of the grandson were void; but they were also of opinion that, if the event mentioned arose, the event being within the legal limits, the gift over would take effect. With that decision I could not agree; for in that case the testator never meant the gift over to take effect unless the previous persons, if they had lived, had been capable themselves of taking. I then prevailed upon Lord Eldon to send a case to the King's Bench. That court held that the gift over was void, not because it was not within the line of perpetuity, but upon the express ground that the limitations over were never intended to take effect unless the previous persons would, if they had been living, have been capable of enjoying the estate, and that the testator did not intend that the estate should wait for persons to take on a given event, where the person to take was actually in existence, but could not take; and Lord Eldon affirmed that decision. So that where there is a gift over, which is void for perpetuity, and a subsequent independent clause on a gift over, which is within the line of perpetuity, you cannot take under the independent clause, unless you can shew that it will accord and dovetail in with the previous valid limitations." Upon which statement it is obvious to remark, that, if it be correct, his lordship, in 1852 when it was given forth, better remembered the ground, " express ground," of the decision, than any body seems to have remembered or known or conjectured it, while the decision was comparatively recent; including his lordship, when as Mr. Sugden first, Sir Edward afterwards, he was counsel in all stages of the case styled, before the vice-chancellor, Bengough v. Edridge, and including also the judge who, delivering the opinion of the judges in the same case, then styled Cadell v. Palmer, had occasion to comment on what himself and his former associates had done in Beard v. Westcott. But a more important remark upon it is this: The solution it proposes is not a real solution. No claimant under the limitation over in that case ever could have occasion to pretend, that he might take while any person was in existence, whom the testator designed to prefer before him. The will expressly provided, that there should be no such preferred person in existence, when the limitation over should take effect; whether by non-existence of all such at the death of the first taker, or by their subsequent cesser of existence before they should attain twenty-one. There might indeed be born, after the death of the testator, a son of the first taker, which son might decease in the lifetime of his father, leaving male issue that might outlive the latter; in which case, as it seems, such issue could not take by purchase, because the Rule against Perpetuities would forbid it; but what then? If they did not die without issue before attaining twenty-one, the limitation over would, by force of its own terms, fail of effect, though the person, in existence and preferred by the testator, could not enjoy the benefit which the testator designed him, at least in the mode and manner designed; and if they did so die, the limitation over, in taking effect, would not interfere with any such person (all such being then non-existent), but only with others or another whom meanwhile the law, contrary to the testator's wish, would have instated ad interim in what, during such interim, his will would (against his wish) have failed to dispose of. This would not at all clash with any supposable intention of his; much less with an intention expressed in his will, or implied therefrom consistently with the settled rules of construction. Nor would it depart, in any degree, from (at least the spirit of) what is universally considered allowable. It is familiar learning, that an executory devise or bequest is good, if it be " within the line of perpetuity," though no preceding estate or interest be created, by the will; or though what preceding estate or estates, interest or interests, it does create, do not, nay by the terms of the will cannot, endure until the period or event has happened, which is appointed for the devise or bequest (executory) to become effectual. Butl. Fearne 395, 398-9, 400; 2 Prest. Abstr. 123-4, 125-131, 143-4; 1 Jarm. Wills 779-780; 4 Kent's Comm. 269; 3 Lom. Dig. 412-3 [288-9]. And what conceivable difference can it make, in reason or in law, quoad hoc, whether the failure to " dovetail in with previous valid limitations" proceeds from the testator's having made or attempted no previous limitations, or none susceptible of such dovetailing, or from his having attempted, but failed, to make some which are not legally valid? Is there any solid ground of objection against an application herein, of a doctrine common among civilians, that testamentary dispositions, contrary to law, " pro non scriptis habentur? " Huber. Præ llect, tom. 1, p. 259, § 23. In regard to residuary dispositions in the same will, Sir Wm. Grant says: " It is immaterial how it happens, that any part of the property is undisposed of, whether by the death of a legatee, or by the remoteness, and consequent illegality, of the bequest. Either way it is residue,--that is, something upon which no other disposition of the will effectually operates. It may in words have been before given; but, if not effectually given, it is, legally speaking, undisposed of, and consequently included in the denomination of residue," (Leake v. Robinson, 2 Meriv. 393; ) so as to pass to the residuary legatee, just as, according to repeated decisions, he takes whatever is attempted to be bequeathed in a manner forbidden by the statutes against mortmain, (Durour v. Motteux, 1 Ves. Sen. 322; Shanley v. Baker, 4 Ves. 732; Green v. Jackson, 5 Russ. 35, 2 Russ. & M. 238; ) unless the residuary bequest itself be contrary to legal inhibition. Negus v. Coulter, 1 Dick. 326. Can it be doubted, that whatever can be given by residuary bequest may be validly made the subject of a specific testamentary disposition? And what is to prevent either a specific or a residuary bequest thereof from being validly postponed during precisely the same period, and in precisely the same manner, as is allowed for a bequest of any subject whatever? --But I refrain, from further discussion of this point, because, as will be hereafter indicated distinctly, no tenet, any fancy can dictate respecting it, can interfere with any contention necessary for me to maintain in this case.
In Monypenny v. Dering the testator devised real estate " to the uses, intents, and purposes following (that is to say): To the use & c. that my brother Phillips Monypenny shall receive and take the rents & c. thereof, for and during the term of his natural life, without impeachment of waste; and from and immediately after his decease, to the use of the first son of the body of the said Phillips Monypenny, for and during the term of his natural life; and from and immediately after his decease, to the use of the first son of the said first son, and the heirs male of his body; and in default of such issue, to the use of all and every other the son and sons of the body of my said brother Phillips Monypenny, severally and successively, according to seniority of age, for the like interests and limitations as I have before directed respecting the first son, and his issue of the body, of my said brother Phillips Monypenny. And in default of issue of the body of my said brother Phillips Monypenny, OR in case of his not leaving any at his decease, to the use of my brother Thomas Monypenny, for and during the term of his natural life," with ulterior limitations to the descendants of Thomas precisely similar to those in favour of the descendants of Phillips: " And in failure of all such issue of my said brother Thomas Monypenny, to the use of him, his heirs, and assigns, forever." Phillips Monypenny survived the testator, and died without ever having had issue, leaving his brother Thomas surviving him. And upon a case sent out of chancery to the court of exchequer, Rolfe B., delivering the judgment of the latter court, said: " In our opinion the eldest son of Phillips Monypenny, if he had had a son, would have taken an estate for life only, and all the subsequent estates are void for remoteness. Some stress was laid in the argument, on the words giving the property over to Thomas Monypenny in default of issue of my brother Phillips, or in case of his not leaving any at his decease. It was contended, that these latter words, whatever the construction of the limitation to the children of Phillips Monypenny, made the devise to Thomas and his issue good, inasmuch as it was to take effect on an event which must happen within the allowed period of time, namely, at the death of Phillips Monypenny, if he should then leave no issue, which event happened. But, looking at the whole context, we think the real meaning of the words was only this, on the death and failure of issue of my brother Phillips Monypenny, whether that failure shall occur at his own death or afterwards, I devise to Thomas; and therefore, whether the word issue, there used, is to be construed to mean issue generally, or such issue as had been previously designated, in either case the limitation over will be void, as being an attempt to create estates which were to commence at too remote a period, namely, the general failure of issue of Phillips Monypenny, or the failure of the particular issue mentioned by the testator." 16 Mees. & W. 418, 436-7. It is manifest, the barons did not consider the limitation over void because it followed limitations which were void for remoteness; and it seems in the highest degree probable, that had they construed the words of the will in the sense which was pressed upon them, they would have held the limitation over valid: As the justices of the Common Pleas did, upon the same case being sent afterwards to them for their opinion, (9 Man. G. & S. 793; ) and as Sir James Wigram V. C. did, when he confirmed the certificate from the latter court, (7 Hare 568, 597-600; ) and as, lastly, the lord chancellor did, in affirming upon appeal the vice-chancellor's decree, without the slightest hesitation arising from the view which, as we have seen, he then presented of the decision in the case of Beard v. Westcott. " If (said he) the gift can be read as a gift in the alternative, that in case there is no issue living at the death of the brother, then, as nobody is excluded, effect may be given to it, consistently with Beard v. Westcott; for the estate is not carried over at the expense of any persons intended by the testator to take under the limitations." Monypenny v. Dering, 15 Engl. L. & E. Rep. 551, 559-560, 22 Law Journ. Rep. (N. S.) Ch. 313, 17 Jurist 467, 2 De Gex M. & G. 145.
I submit that Mr. Pettit's objection, founded upon his interpretation of Judge Green's dictum, has now received an effectual answer; and that, under the will in our case, the limitation in favour of the testator's children living (as circumstances fell out) at the death of Sally Stone, without her having ever married or had issue, took effect; although, had she married and left children living at her own death and at the termination of her husband's widowerhood (in case she left a surviving husband), that limitation would have failed, because the contingency would not have happened in which it was (by the terms of the will) to take place, notwithstanding the limitation in favour of her children would have failed also, by reason of its being ab initio void; as is well illustrated in the case of Crompe v. Barrow, and in that (more exactly similar) of Leake v. Robinson. And as this limitation, to the testator's children, " dovetailed in with the previous valid limitations," leaving no chasm whatever for the law to fill up, their claim suffers no prejudice from the decision in Beard v. Westcott, in any view thereof which would leave it a chance of maintaining itself in consideration and respect as an authority.
Where the vesting of a gift to persons unborn at the death of the testator is postponed for a fixed term, exceeding at all twenty-one years, the gift is void. 1 Jarm. Wills 230-231; Palmer v. Holford, 4 Russ. 403; Speakman v. Speakman, 8 Hare 180. But, in a comparatively recent case, the testator having directed that all his property should be sold at the end of thirty years from his decease, and that two-thirds of the proceeds thereof should " be divided amongst" his " children living at that period, or to their heirs; " the other third to be invested for the benefit of his wife, and after her decease to go " " to such of" his " children as should then be living, and to their heirs; " and the children of the testator living, at the death of his widow, which happened within the thirty years, and at the termination of that period, being the same; the vice-chancellor (Sir George James Turner) settled the construction of the word " or" in the first limitation to be the same as that of the word " and" in the second, and that therefore each branch of the gift was, in legal effect, to the children of the testator living at the respective periods indicated, and upon their deaths afterwards to their respective personal representatives; and, upon this foundation, he did not hesitate about holding that, in each branch, it was valid. Lachlan v. Reynolds, 9 Hare 796, 15 Engl. L. & E. Rep. 234. " It appears to me," said he, " that this amounts to no more than a gift to such, of several persons who may be living at the death of the testator, as shall be living at the end of the thirty years. The legacies are vested at the termination of a life in being at the death of the testator, and they are not, therefore, [therefore, not] liable to any objection on the ground of remoteness:" More accurately,--should the legacies never vest, in consequence of there being, at the termination of the period fixed, no living child of the testator, then, at the death of the longest liver of them, before the termination of such period, the present right to the future proceeds of sale would have forthwith become vested, by lapse, in some other person or persons, (2 Lom. Ex'rs 110-116 [52-56]; 2 Wms. Ex'rs, 5th edit. 1100-1119; ) who might validly dispose of the same, at once, unless they were minors, and, in that case, as soon as they should become adult; so that, quacunque via, the right would not be put extra commercium for a term of suspense longer than is allowed by the Rule against Perpetuities. Now, can it be thought, that this gift would have been invalidated, if the testator had added that, in case there should be living at the close of the respective periods indicated any child or grandchild or other descendant of some pre-deceased child of his, (an eldest son, we may suppose,) then his surviving children should not take? Or, if (going further) he had said that, in that case, the proceeds should be divided among the descendants of such pre-deceased child, in any prescribed proportions? Such gift over would doubtless be void, because it might protract the suspense of a vesting in any one, for the whole term of years indicated,-- which might be sixty, seventy-five, or an hundred, just as well as thirty,-- without any reference to the duration of lives in being at the death of the testator. But why should that affect an alternative gift, which by the terms of it must take effect or must fail within the compass of such a life? One branch of the alternative being void, if the other branch is allowed to be valid, the suspense of vesting is just the same, as if this latter branch stood, in the will, quite alone. So here.
I conclude, therefore, that this objection from remoteness does not in any manner affect us. But were it otherwise in regard to the slaves, still it would not invalidate our right to the land. For, as to that, each of the limitations over was, apart from the Rule against Perpetuities, alternatively, capable of taking effect as a contingent remainder; the case of White v. Collins, Comyns 289, heretofore stated, abundantly proves this; and whenever such is the case, it is an inflexible rule, that the limitation shall operate in that manner. Butl. Fearne 386-394; Purefoy v. Rogers, 2 Saund. 388; Jiggetts v. Davis, 1 Leigh 402. Now no remainder could possibly be too remote, according to the lex temporis governing our case; and it is, principally, because the reporters' marginal abstract of Smith v. Chapman, 1 Hen. & M. 240, suggests the contrary with respect to contingent remainders, that I have heretofore noted it as reprehensible.--Touching this point there has arisen of late years a controversy, which was for some time very spiritedly kept up; the short history whereof is this: In the early part of 1843 Lord St. Leonards, then (as Sir Edward Sugden) lord chancellor of Ireland, expressed an opinion, in the course of his giving judgment upon the case of Cole v. Sewell, 2 Conn. & L. 344, 4 Dr. & War. 1, that remainders were not within the Rule against Perpetuities. Soon afterwards, and before the publication of any report of that judgment, Mr. Lewis, in his treatise on the Law of Perpetuity, pp. 408-417, delivered and endeavoured to maintain an opposite opinion; commencing his discussion of the subject in these words: " The limitations, to which our attention has been hitherto confined, were, either executory devises and bequests, or springing and shifting uses or trusts of the like nature. And it may probably, on the first view, appear that these several classes of limitations exhaust the doctrine of perpetuity, in respect of the seeming inapplicability of the Rule to limitations of direct remainders at common law. Indeed, as much has been, in effect, said by writers of even more than ordinary repute. Thus, the Commissioners on the Law of Real Property commence their observations on the subject of Perpetuities with the following statement: ‘ All future interests, not being remainders, are restrained in their limits, by the rules of law relating to perpetuities.’ An opinion, thus sanctioned, deserves great respect; but it is conceived that, upon both principle and authority, it must be dissented from." Lew. Perp. 408. Shortly thereafter the concluding portion of Mr. Jarman's work On Wills was given to the profession; which contained (vol. 2, pp. 727-735), with especial reference to Sir Edward Sugden's observations in Cole v. Sewell, an explicit adherence to the doctrine that remainders might be too remote. Very soon occasion was taken, in an article of great ability, in the Jurist, (vol. 8, pt. 2, pp. 22-23,) to condemn the views of both Mr. Lewis and Mr. Jarman, the writer supporting a conclusion practically, though not in theory, resembling that of the lord chancellor of Ireland; subsequently to which, in the course of a paper published in the Law Magazine, (vol. 31, p. 362,) strictures were passed upon Mr. Jarman's observations, of like character and tendency. Then came an affirmance by the House of Lords, of the decree in Cole v. Sewell, 2 H. L. Cas. 186, 12 Jurist 927: And then, almost simultaneously, came out Lord St. Leonards' review of decisions in that House, under the name of a Treatise on the Law of Property as administered by the House of Lords, with a preface dated 11 Jan. 1849, and Mr. Lewis's Supplement to his Treatise on the Law of Perpetuity, with a preface dated Hilary Term of the same year; in the former of which (pp. 116-121) the writer notices the views of Mr. Jarman and Mr. Lewis, and treats the decision of the House of Lords as an affirmance of his own views; and in the latter (pp. 97 et seq. ) Mr. Lewis struggles to maintain his, in an extended discussion, in the course of which (pp. 102-103) he remarks, " it seems that there are at least FIVE different views entertained in the profession upon the question in dispute, although the practical conclusions do not vary to quite the same extent." Finally (so far as my information extends), comes out in 1861 the third London edition of Jarman on Wills, in which his remarks on this subject are silently suppressed, and (vol. 1, pp. 234-236) the question is treated as no longer a question, but settled and closed by the decisions of the House of Lords in Cole v. Sewell, and in another case of Doe d. Winter v. Perratt, 9 Cl. & Fin. 606, in favour of the views of Lord St. Leonards and those who had always agreed with him respecting it: And this, upon the short ground, that a contingent remainder never could have produced any such inconvenience as was designed to be prevented by the Rule against Perpetuities: because, until it became vested (and, consequently, thereupon instantly alienable ), it was always barrable, by the common law, which in this particular continued in force here till 1 Jan. 1820, when it was altered by R. C. 1819, c. 99, s. 20, 28. Since that time contingent remainders have been, among us, not less indestructible than executory devises and bequests; and therefore, in cases governed by the new law, perhaps our courts ought to bring them equally within the rule restraining remoteness. But, as our case is not affected by these comparatively recent statutory provisions, (retained as to their substance in V. C. 1860, c. 116, s. 12, 13,) I submit that the limitation over in favour of testator's children is, in regard to the land, good as a contingent remainder: And this point I willingly rest upon the authorities, and the discussions (pro and con ) in the books, already referred to.
If, however, the court should hold that all the limitations, after that to Sally Stone, or after that (if it be so) to her and some future husband, were void; it does not thence follow, that (as counsel opposite contends) she took all the remaining ownership in (even) the slaves. As to the lands, it is plain she could no way get, by her father's will, an inheritable estate therein unless by taking an estate tail, on some or other of the grounds which have been heretofore discussed. To that subject I shall not revert further than to say, that even if she took, in the slaves, what would be an estate tail in land, and therefore would in personalty be an absolute ownership, still a limitation over, not transcending the line of perpetuity, would be valid, just as it would have been after an express bequest of the slaves to her and her executors, administrators and assigns forever. This has been settled by very many decisions upon the precise point,--in cases where the first gift was in terms of an express estate tail, (Lamb v. Archer, Carth. 266, Comb. 208, Skinn. 380, 1 Salk. 225; Fletcher's case, 1 Eq. Abr. 193; Paine v. Stratton, cited and commented on by Lord Hardwicke, 2 Atk. 647; Crooke v. De Vandes, 9 Ves. 397; Lyon v. Mitchell, 1 Madd. 467 [253]; Redford v. Redford, 1 Keen 486; Mazyck v. Vanderhurst, 1 Bail. Eq. Rep. 48; Flinn v. Davis, 18 Alab. Rep. 132; )--in cases where an estate tail in realty would have been created under the operation of the Rule in Shelley's case, (Taylor v. Clarke, 2 Eden 203-204; Mansell v. Grove, 2 Younge & Coll. C. C. 484; Darley v. Martin, 13 Comm. Bench Rep. 683, 24 Engl. L. & Eq. Rep. 275; )--and in cases where such an estate in realty would be created by implication from the terms of the gift over, as where after a gift to the first taker indefinitely, (Atkinson v. Hutchinson, 3 P. Wms. 258: Foley v. Irwin, 2 Ball & B. 435; Clapp v. Fogleman, 1 Dev. & Bat. Eq. Rep. 466; ) or to him and his heirs, (Goodtitle v. Pegden, 2 Durnf. & E. 720; Dunn v. Bray, 1 Call 338; Cudworth v. Thompson, 3 Desauss. 256; ) there was a gift over, if he should die without leaving issue; which is construed as importing, in dispositions of realty (as has been before pointed out) an indefinite, but, in dispositions of personalty, a definite, failure of issue of the person referred to. 2 Jarm. Wills 418-419. In the leading case of Forth v. Chapman, 1 P. Wms. 663, the limitation over did create an implied estate tail in realty, and yet, from this difference of construction, the very same words applied to personalty, disposed of in the very same clause, made a valid bequest over of it.--Concerning the last mentioned case, indeed, there is a passage in 4 Kent's Comm. 275-276, 1st edit. which has been retained in all editions since, that I have seen, to the eleventh inclusive, (vol. 4, pp. 281-282), with only such changes as, without altering the sense, yet indicate that the passage has been retouched; and which, for reasons that will be obvious, demands a passing notice. The words of it in the first edition are as follows: " The English courts long since took a distinction between an executory devise of real and [an executory bequest] of personal estate, and held that, while the words ‘ dying without issue’ made an estate tail of real property, yet that, in respect to personal property, which was [is] transient and perishable, the testator could not have intended a general failure of issue, but [must have intended a failure of] issue at the death of the first taker. This distinction was raised by Lord Macclesfield in Forth v. Chapman, and supported afterwards by such names as Lord Hardwicke, Lord Mansfield, and Lord Eldon. But the weight of other distinguished authorities, such as those of Lord Thurlow, Lord Loughborough, and Sir William Grant, is brought to bear against any such distinction. There is such an array of opinion on each side, that it becomes difficult to ascertain the balance upon the mere point of authority." And in a note it is said: " The conflict of opinion, as to the validity of the distinction in Forth v. Chapman, is very remarkable, and forms one of the most curious and embarrassing cases in the law, to those well disciplined minds that desire to ascertain and follow the authority of adjudged cases. Lord Hardwicke, (2 Atk. Rep. 314,) Lord Thurlow, (1 Bro. 188, 1 Ves. jun. 286,) Lord Loughborough, (3 Vesey's Rep. 99; ) Lord Alvanley, (5 Vesey's Rep. 440,) Lord Kenyon, (3 Term. Rep. 133, 7 Term. Rep. 595,) Sir William Grant, (17 Vesey's Rep. 479,) and the court of K. B., in 4 Maule & Selw. 62, are authorities against the distinction. Lord Hardwicke, (2 Atk. [the passage doubtless intended is in 3 Atk.] Rep. 288, 2 Ves. Rep. 180, 616,) Lord Mansfield, (Cowp. Rep. 410,) Lord Eldon, (9 Ves. Rep. 203,) and the House of Lords, in Keily v. Fowler, 6 Bro. P. C. 309, are authorities for the distinction. As Lord Hardwicke has equally commended, and equally condemned, the distinction, without any kind of explanation, his authority may be considered as neutralized, in like manner as mechanical forces of equal power, operating in contrary directions, naturally reduce each other to rest." Now, incredible as it may seem to Kent's idolaters, till they shall have taken the trouble to read for themselves, with a moderate effort of attention, the books he cites, it is nevertheless true, that Lord Hardwicke, Lord Eldon, and the House of Lords did not, in addition to Lord Macclesfield and Lord Mansfield, maintain the distinction he states. Though Lord Macclesfield may have been of that opinion, (and was, if Serjeant Williams is not mistaken in what he says 2 Saund. 388 k--l, note 9 to Purefoy v. Rogers, 6th edit.,) he did not maintain or advance it in Forth v. Chapman. Lord Hardwicke, in the place first cited by Kent, (2 Atk. 314, Beauclerk v. Dormer, ) was giving his decision against such distinction, but not against the authority of Forth v. Chapman. Lord Eldon, in the only case before him which Kent cites, (Crooke v. De Vandes, 9 Ves. 202,) said it was " impossible at this day to doubt," that the law was against any such distinction. And the judges, whose opinion was delivered to the House of Lords, in the case before it of Keiley v. Fowler, in the most emphatic terms, disclaimed all design of acting upon such a principle. Wilm. 312, 314. This they did by the mouth of Sir John Eardley Wilmot, chief justice of the Common Pleas; who, at the same time, (ibid. 313,) speaking of Forth v. Chapman, said: " A ray of his [Lord Macclesfield's] great genius irradiated that case." Lord Mansfield indeed would appear from the report of Denn v. Shenton, in Cowp. 410, (see p. 411; ) and did thence appear to Serjeant Williams (see his note 9 to Purefoy v. Rogers, 2 Saund. 388 k--l, 6th edit.; ) to have thrown out a dictum favourable to that distinction; but a more correct report of the same case, in 2 Chitty 662, (cited in subsequent editions of Kent's Comm.) shews that he did not utter such incorrect, but a different and correct, dictum, which reads there as follows: " In the case of land there is no instance where the words ‘ not leaving issue’ are confined to having issue at his death; but it would be otherwise of personalty, for the sake of intention." And this was the precise distinction maintained in Forth v. Chapman; than which case none has ever commanded more general approbation in all respects, or more universal and exceptionless approbation in regard to that branch, which relates to personal estate, of the distinction acted upon in it. This distinction, not that stated by Kent, was approved by Lord Hardwicke, in Sheffield v. Orrery, 3 Atk. 288; Stafford v. Buckley, 2 Ves. sen. 180; and Southby v. Stonehouse, ibid. 616; by lord chief justice Wilmot, delivering the opinion of the judges in the House of Lords, in Keiley v. Fowler; by Lord Mansfield, in the correct version of his dictum in Denn v. Shenton; and acted upon with expressions of strong approbation by Lord Eldon, in Crooke v. De Vandes, 9 Ves. 203: While not this, but that, was disapproved by Lord Thurlow in Bigg v. Bensley, 1 Bro. C. C. 188; and Everest v. Gall, 1 Ves. jun. 286, (where he shewed a disposition favourable to Forth v. Chapman; ) by Lord Loughborough, in Chandless v. Price, 3 Ves. 99; by Sir R. P. Arden, afterwards Lord Alvanley, in Rawlins v. Goldfrap, 5 Ves. 440; and by Sir Wm. Grant, in Barlow v. Salter, 17 Ves. 479. Lord Kenyon did indeed, in Porter v. Bradley, 3 Durnf. & E. 143, and Roe v. Jeffery, 7 Id. 595, show disapprobation of Forth v. Chapman; but it was because one branch of the distinction in it made " die without leaving issue" signify an indefinite failure of issue so far as realty was concerned, instead of making it mean a failure of issue at the death, as it was made to mean in regard to personalty, by the other branch of the distinction; which latter he approved, in those cases, and in Daintry v. Daintry, 6 Durnf. & E. 314, and acted upon in Goodtitle v. Pegden, 2 Id. 720, wherein he said, " that, on conference with the rest of the court, they were clearly of opinion, on the authority of Forth v. Chapman, which had been uniformly followed by a series of cases down to the present time, that the limitation over [in the case then before them] was good; " which was, of personal estate, upon a dying without leaving lawful heir. The decision of the court of King's Bench in Dansey v. Griffiths, 4 Maule & S. 61, was upon that branch of the distinction in Forth v. Chapman, which relates to real estate, and was in accordance with it; the struggle made in the case, unsuccessfully, being to obliterate that branch of the distinction, so as to make the word " leaving" operate in regard to realty in the same manner as, it was on all hands agreed, it must do in regard to personalty. Besides which, not only has each branch of the distinction, separately, been adopted and pursued in multitudes of cases since, but moreover this has happened in construing the same words in the same clause differently with respect to the two species of property; for example, as to real estate, in Bamford v. Chadwick, 14 Comm. Bench 708, 26 Engl. L. & E. Rep. 302; Biss v. Smith, 40 Id. 541, 2 Hulst. & N. 105; see also Doe v. Ewart, 7 Ad. & Ell. 636, 3 Nev. & P. 197; and as to personal estate, in Radford v. Radford, 1 Keen 486; Rathbone v. Dyckman, 3 Paige 9; see also Foley v. Irwin, 2 Ball & B. 435; Clapp v. Fogleman, 1 Dev. & Batt. Eq. Rep. 466, 468. And in this court no case has been more frequently recognized, or approved more unqualifiedly, than Forth v. Chapman. See Dunn v. Bray, 1 Call 338; Pleasants v. Pleasants, 2 Id. 338, (where Judge Roane misstates Forth v. Chapman in the same manner as Chancellor Kent misconceived it; ) Hill v. Burrow, 3 Id. 349, (where Judge Roane states Forth v. Chapman correctly, but in the same case, p. 352, Judge Fleming misstates the distinction, on the authority of Cowper's misreport of Lord Mansfield's dictum in Denn v. Shenton; ) Tate v. Tally, 3 Call 359; Wilkins v. Taylor, 5 Id. 155; Dilliard v. Tomlinson, 1 Munf. 203; Deane v. Hansford, 9 Leigh 257; Callis v. Kemp, 11 Gratt. 85-86; Moore v. Brookes, 12 Id. 148; Tinsley v. Jones, 13 Id. 292-293; also Lynch v. Hill, 6 Munf. 114.
If, indeed, Sally Stone had taken in the slaves an interest resembling an estate tail, then an abortive attempt at limiting the same over would not have prevented her acquiring by the will an absolute ownership of them: As was decided in the cases before mentioned of Butterfield v. Butterfield, 1 Ves. sen. 134, and Chatham v. Tothill, 7 Bro. P. C., ed. Toml. 453; and as is perfectly settled, (Butl. Fearne 463-466; ) whether such attempted limitation over is void, for remoteness, (1 Jarm. Wills) 783; Kampf, v. Jones, 2 Keen 756; Ring v. Hardwick, 2 Beav. 352; Courtier v. Oram, 21 Id. 91; Webster v. Parr, 26 Id. 236,--i Refer to the two last mentioned cases upon information concerning them at second hand; -- Powell v. Brown, 1 Bail. 100; Key. Chatt. § 282; ) or for any other reason, (Harvey v. Stracey, 22 Law Journ. Rep. N. S. Ch. 23, 42, 1 Drewry 73, reported imperfectly, 3 Engl. L. & Eq. Rep. 13, from 16 Jurist 771; Stevens v. Gadsden, 20 Beav. 463; Gerard v. Butler, Id. 541; -- Doe v. Eyre, 3 Man. G. & S. 557, 5 Id. 713, which seems to tend contrariwise, was followed in Robinson v. Ward, 4 Jurist N. S. 625, better reported 27 Law Journ. Rep. N. S. Ch. 726, by Kindersley V. C., but with manifest and avowed reluctance, and which reluctance had for it certainly very specious, if not solid, reasons, as appears in Serjeant Manning's note, 5 Man. Gr. & S. 747; ) or that it fails of effect, because there is no person answering the description of him, her or them, in whose favour the limitation over is made, in existence when the circumstances have come to pass, that would entitle such person to take, if in existence. 1 Jarm. Wills 750; Jackson v. Noble, 2 Keen 590; Eaton v. Barker, 2 Collyer 124; Jackson v. Staats, 11 Johns. 337, 351; Waldron v. Gianini, 6 Hill 601; Lowry v. O'Bryan, 4 Richards Eq. Rep. 262; Parry v. Lyon, 5 Id. 202. But where, as in our case, a testator gives (" lends" ) personalty for life or for any less interest than what in realty would constitute an estate tail, an attempt at limiting it over, which is for any reason abortive, will not enlarge the first taker's interest, except where such attempted limitation over is void as being upon an indefinite failure of issue of the first taker, if this can be called an exception, seeing that such a limitation over would in realty create an implied estate tail. " " " We," said Bigelow J., delivering the opinion of the court in Battle Square Church v. Grant, 3 Gray 142, 156, " understand the rule to be, that if a limitation over is void for remoteness, it places all prior gifts in the same situation as if the devise over had been wholly omitted. Therefore a gift of the fee or the entire interest, subject to an executory limitation which is too remote, takes effect as if it had been originally limited free from any devesting gift. The general principle applicable to such case is, that when a subsequent condition or limitation is void by reason of its being impossible, repugnant, or contrary to law, the estate becomes vested in the first taker discharged of the condition or limitation over, according to the terms in which it was granted or devised; if for life, then it takes effect as a life estate; if in fee, then as a fee simple absolute."
It is true, that in Tayloe v. Graves, Jeff. 40, Barradall (at p. 42) reports himself arguendo to have said: " I take the law to be very clear, that if a chattel is given to one for life, or the use for life, (for there is no difference,) and no remainder is limited, or a remainder that is void either in its creation or in event, the absolute property vests in the devisee for life, and can never revert back again to the representative of the testator." And that doctrine has been upheld by decision in two modern American cases, State v. Savin, 4 Harringt. 56, n., and Brownfield's Estate, 8 Watts 468. But to the passage I have quoted from Barradall's argument there is appended a " quæ re de hoc; " which seems to be not an interpolation of Mr. Jefferson; for it is also found in an ancient MS. copy, penes me, of Barradall's Reports. And when, on the 16th of November 1786, Mr. Marshall was proceeding to contend, in the high court of chancery, that a quasi -reversion could exist after a bequest for life of a slave, Wythe C. interrupted him with the question: " Do you suppose, Sir, that this doctrine of a reversion in a slave, after an estate for life, will be controverted?" Which clear intimation of opinion seems to have terminated debate upon the point, not to be renewed in any subsequent stage of that case. Dudley v. Crump, 1 Tuck. (manuscript) Notes of Cases 23; s. c. on appeal (Crump's ex'rs v. Dudley, ) 3 Call 507. And in March 1793, by his decree pronounced in Nance v. Woodward, Wythe 4, (2nd edit. 180,) the same chancellor enforced the same doctrine sub silentio, treating it, in his " opinion," as not even open to question. Nor has the question, so far as I know, been ever stirred again in our (Virginia) courts. But elsewhere it has been often stirred, and as often (except in the Delaware and the Pennsylvania cases before mentioned) decided in favour of such quasi -reversion in a chattel. Ayres v. Falkland, 1 Ld. Raym. 235, 1 Salk. 231, Com. Dig. tit. Chancery, 4 W. 21, 1 Freem. 272; Goring v. Bickerstaffe, 2 Freem. 166; Kimpland v. Courtney, Id. 250; Harrington v. Harrington, 1 Ch. App. (L. R.) 564; Brown v. Kelsey, 2 Cushing 243; Hoes v. Van Hoesen, 1 Barb. Ch. Rep. 379, 3 Denio 610, 1 Comst. 120; Anon., 2 Hayw. 161; Black v. Ray, 1 Dev. & B. 334; Geiger v. Brown, 2 Strobh. Eq. Rep. 359, n.; Glover v. Harris, 4 Richards. Eq. Rep. 25; Vannerson v. Culbertson, 10 Smed. & M. 150. See Key. Chatt. § 274-280, 283, 284. In the case of Forth v. Chapman heretofore mentioned, the lord chancellor held a limitation over of a leasehold, though to take place on the death of a first taker without leaving issue, good; upon the distinction that such a limitation, applied to personalty, was upon a failure of issue at the death of the first taker, though the same limitation, applied to realty, would import an indefinite failure; but Sir Joseph Jekyll M. R., upon an opposite construction, had held the limitation over of the chattel real, void: And in that stage of the cause, before an appeal taken, " it being debated by counsel, where the residue of the term vested" after the death of the first taker, more precisely the two joint first takers; Peere Williams reports the master of the rolls to have " declared that the subsequent words increased their interest, and gave the whole term to them, it being plainly intended to dispose of and devise away the whole term from the testator's executors; that a devise of a term to one for a day or an hour is a devise of the whole term, if the limitation over is void, and it appears at the same time that the whole is intended to be disposed of from the executors." 1 P. Wms. 665-666. Now, as Sir Joseph held (contrary to what was subsequently the lord chancellor's opinion upon appeal,) that the limitation over of the personalty, not less than of the realty, was upon an indefinite failure of issue, which would create an implied estate tail in the latter; he therefore necessarily considered that it gave in the former an absolute ownership, (agreeably to many decisions theretofore made, Burford v. Lee, 2 Freem. 210; Anon., ibid. 287; Ridge v. Hudson, Bunb. 12; ) which, in accordance with numerous authorities I have already cited, would remain absolute, where the limitation over was held void for remoteness. So that, understood secundum subjectam materiem, and as applied to the particular case before him, his general position, repeated in Bac. Abr. tit. Remainder and Reversion, A; and reproduced in President Tucker's dictum in London v. Turner, 11 Leigh 412-413, is a mere truism. The doctrine appears in a more imposing form in Doe v. Cooke, 7 East 269, 3 Smith 236; where the testator, possessed of a leasehold for a long term of years unexpired, bequeathed it to Thomas Cooke, son of William Cooke by Elizabeth his deceased wife, for and during the term of his natural life; and after his decease to his child or children by any woman whom he should marry, his or her (such child's) or their (such children's) executors, administrators, and assigns, forever; but upon condition that, in case the said Thomas Cooke should die an infant, unmarried, and without issue, the premises should go over to his father William Cooke and his (W. C.'s) three other children by the said Elizabeth his late wife, share and share alike, his, her, and their heirs, executors, administrators, and assigns, forever; and Thomas having died without issue, but after his marriage and over twenty-one, Lord Ellenborough C. J., delivering the opinion of the court, said: " The contingency, upon which the estate was to go over, was to consist of three things, the death of Thomas Cooke,--during his infancy,--without leaving wife,--or child; and, as William Cooke and his children appear to have been the objects of the testator's bounty next to Thomas Cooke and his family, it would be very strange to suppose that the testator introduced into his will contingencies, which might defeat William Cooke's interest, WITHOUT an intention of conferring some advantage [therefrom] on Thomas Cooke; and that he meant, if Thomas Cooke died an infant leaving a wife and no children, [--if he left children, the will in express terms gave it to them--] or should die after he attained the age of twenty-one, that the limitation over should fail, WITHOUT any advantage whatever resulting to Thomas Cooke. And, though the disposition of a term to one for life, with a remainder over, will in general entitle the first devisee to no greater interest than an estate for his life, if the remainder should not take effect, and the residue of the term will go to the personal representatives of the testator; yet this rule will not hold, if it appear that the testator's intention was to dispose of the whole from his executors; which we think was the intention of the testator in this case." Nevertheless, as the matter was presented on the footing of a verdict in ejectment in favour of the plaintiff, subject to the court's opinion upon a case agreed; wherein it was stated, " the lessors of the plaintiff claim under" the testator's " will, and ARE entitled if the limitation to William Cooke be void [ineffectual] under the facts stated; " his lordship could do no more than add: " And, it being admitted in the statement of the case, that the lessors of the plaintiff are entitled, if the limitation to William Cooke and his three children cannot take effect in the events which have happened, we are of opinion that there must be judgment for the plaintiff." Had the court not been trammelled with that agreement of the parties, we do not know certainly what would have been the judgment. Perhaps it is a fair inference from the language of the chief justice, that Thomas Cooke would have been held to take the whole interest in the term, transmissible (since he was dead) to his personal representatives. But, if so, nothing can be more manifest than that such judgment would have proceeded upon the ground that the testator intended such bounty for him and his. Moreover the complex event had not happened, in which it was designed by the testator the limitation over should take effect. The case, therefore, had it been so decided, would not have been authority for similarly deciding in another case, wherein the limitation over would in event take effect agreeably to the testator's intention, but for the reason that the law will not allow such intention to prevail, and wherein moreover he did not intend, so far as tokens the law deems sufficient indicate, any benefit to the first taker capable of enduring longer than till such event.
Nothing in either of the printed reports of that case furnishes a clew to discover in what manner the lessors of the plaintiff could claim under the will of the testator. Perhaps it was under a residuary clause. Under such a clause, in Andree v. Ward and Green v. Ward, 1 Russ. 260-265, where a testator bequeathed a sum of stock, upon trust to pay the interest to his son during life, with a direction, if he married a woman with a fortune of a specified amount, to settle the fund upon her and the issue of such marriage, but, in case of the son's decease leaving no issue of his body, the stock was given over to various persons; and the son, after marrying a woman who had not the fortune required by the will, died leaving issue of the marriage; it being held that the son's life interest in the stock was not enlarged by implication into a quasi estate tail, that the issue of his marriage took no interest in the stock, and that the gifts over failed in event; the residuary legatees took. Keyes (Chatt. § 281) relies on these cases as " authorities directly in point," to prove that in such cases " the property reverts to the donor or his representatives; " and in effect they seem to be so, for whatever passes under a mere residuary clause would, without such clause, go to testator's next of kin as undisposed of. At any rate there are authorities in point to sustain him. Thus in Ibbetson v. Ibbetson, 10 Sim. 495, it was held that personalty, bequeathed on an event which was too remote, " fell into and formed part of the testator's residuary personal estate from and after the death of" the first taker; as appears from the terms of the decree set out in 10 Sim. 516; which decree was affirmed on appeal, 5 Myl. & Cr. 26: And this case was followed in another precisely similar, except that in the latter, for want of a residuary clause, the property went to the testator's next of kin. Dungannon v. Smith, 12 Cl. & Fin. 546, 10 Jurist 721; affirming in House of Lords the decision of the court below, Flan. & K. 638, 1 Dr. & War. 543, n., 5 Ir. Eq. Rep. 84, Sugd. Prop. 342-346. See also James's ex'ors v. Masters, 3 Murph. 110; Creswell v. Emberson, 6 Ired. Eq. Rep. 151. These authorities are not counterpoised by Johnson's adm'r v. Johnson's heirs, 8 B. Monr. 470; Stewart's ex'or v. Wyatt, Id. 475.
In Caleb Stone's will there is a residuary clause; so that quacunque via, whether his children living at the death of Sally Stone could or could not take under the limitation over in their favour, at any rate she took, under her father's will, nothing she could bequeath, in the slaves.
II. Supposing this to be so, still, in their petition of appeal, appellants insist that some other way she took, in some undivided portion of the land and of the slaves, an interest which under her will they can claim; and therefore that the decree should be reversed for dismissing their bill. This hypothesis we deny, for reasons already stated; but, supposing it well founded, still, as it was not advanced in the bill, and the record does not shew that application was made, in the court below, for leave to file an amended bill, the decree should be affirmed, and appellants left to commence (if they choose) a fresh suit with modified pretensions. [Mr. Green's argument under this head, relating only to rules of chancery procedure, need not be reported.]
OPINION
MONCURE, P.
The court is of opinion, that under the will of Caleb Stone, which was recorded in 1810, his daughter Sally, who died without ever having married or had any children, was entitled only to a life estate in the land and slave and future increase of the slave loaned to her by the 10th and 11th clauses of the will.
The 10th clause must be read thus: " 10th. I lend to my daughter Sally, 140 acres of land to be possessed by her during her natural life and the natural life or widowerhood of any husband she may have; and at her death and the death or after marriage of her husband, then to be equally divided among her children, if she has any, and if she has none then to be divided among all my children."
By the 11th clause the slave Phœ be and her future increase are loaned to the said Sally, on the same terms and conditions with the land.
If Sally Stone had left a husband her estate would have been enlarged and extended to the death or after marriage of her husband, when it would have determined. In other words she was entitled under the will to a vested estate for her life, and to a contingent estate in remainder at and from the period of her death until the death or after marriage of any husband she might have who should survive her. But as she had no husband, the contingency never happened and her estate therefore ended at her death.
The language of the will is very plain, and to a mind unaccustomed to legal technicalities and difficulties, it would seem to be strange that there could be any doubt about the meaning of the testator. The difficulty arises from the word " children," which is twice used in the 10th clause. And the question is asked, could the testator have intended to give the property over only to children, to the exclusion of the descendants of any deceased child or children? From the improbability of such an intention it is argued that he must have used the word " children" as a word of limitation and not of purchase, and that the 10th clause must be construed as if it had been a gift to Sally Stone and the heirs of her body; which would have created an estate tail in the realty, which the statute would have converted into an estate in fee simple, and an absolute estate in the personalty.
Now it is very probable that if the testator had been asked when he gave instructions for his will, whether he intended by the use of the word " " children" to exclude the descendants which might be living of any child that might be dead, supposing the will to have that effect, he would have answered " " " No," and would have directed such words to be used as would plainly express his intention. But whatever may be our conjecture on that subject, we cannot give effect to any supposed intention which is not expressed by the words of the will. The most we could say in such a case is, Voluit, sed non dixit. We sit here not to make wills for testators but to expound them. And we must give effect to every will as it is written by the testator, provided it be legal, however strange and capricious it may seem to have been.
Here is an express loan to his daughter Sally during her natural life. This is plain language, and standing by itself it cannot be misunderstood. What is there in the will to change its natural meaning? Only the word " children," which twice follows it in the same clause. Now this word children is just as plain as the loan for life previously given. Its meaning is, issue in the first degree, and it can generally have no other meaning unless there be other words in the will to give it such other meaning, except the rule in Wild's case applies, which is founded on peculiar reasons. A testator may use words in any sense he pleases, however different that sense may be from their natural meaning; and therefore he may use the word " children" to embrace grandchildren, or other descendants, or issue indefinitely; but then it must appear from his will, at least generally, that such was his intention. We say generally because there may be cases in which the word " children" in a will would be construed to mean " grandchildren," although there might be nothing in the will to show such a meaning; as when the gift is to children, and the proof de hors the will, is that the testator had not, and in the nature of things could not have, children, but had grandchildren; then the grandchildren would take under the will ut res magis valeat quam pereat; and so in the like cases. But this is not such a case. There is nothing in the will nor de hors the will in this case, to change the natural and ordinary meaning of the words used, and we must therefore give effect to them according to that meaning.
We therefore think that the word children in this will is a word of purchase and not of limitation, whether the devise over to children be void for remoteness or not; from which it follows that the estate expressly limited to the testator's daughter Sally during her natural life, & c., in the former part of the 10th clause, is not enlarged into an estate in tail in the land, nor into an absolute estate in the slave and her increase, by the word " children" in the latter part of the clause.
It is sufficient and only proper for us to decide in this case that Sally Stone had only a life estate in the property aforesaid, without deciding who were entitled to it at her death. We therefore do not intend to decide the latter question. The solution of that question belongs to the court in the suits which it appears are depending for the division of the land and slaves, or distribution of the proceeds of the sale thereof, among the persons entitled thereto. To those suits the appellants can be made parties, if they claim to be entitled to participate in such division or distribution.
The view we have taken of this case renders it unnecessary for us to examine the many authorities referred to by the learned counsel who argued it. But wishing the profession to have the benefit of their arguments, which displayed extraordinary legal research, we request the reporter to publish full notes of them in his report of this case.
It follows, from what we have said, that the decree of the Circuit court must be affirmed; but without prejudice to any interest which the said Sally Stone, or her representatives, may have in the said property, or any part thereof, otherwise than under the loan to her as aforesaid.
The decree was as follows:
That Sally Stone was entitled only to an estate for her life in the land and slave Phœ be and her increase under the loan made to her by the tenth and eleventh clauses of the will of her father Caleb Stone, and that there is no error in the said decree. Therefore, without expressing any opinion on the question as to what persons were entitled to the said property at her death, and without prejudice to any interest which she or her representatives may have in the said property or any part thereof otherwise than under the loan to her as aforesaid, or to any claim which the said representatives or the appellants may assert to any such interest by becoming parties to the suit instituted and still pending, as appears from the bill, for the sale of the said property and distribution of the proceeds, or otherwise, it is decreed and ordered that the said decree be affirmed, and that the appellants do pay unto the appellees thirty dollars damages, and also their costs by them about their defence in this behalf expended.
DECREE AFFIRMED.