Davidson v. Davidson's Executors, 8 N.C. 163, 1 Hawks 163 (1820)

Dec. 1820 · Supreme Court of North Carolina
8 N.C. 163, 1 Hawks 163

Davidson and others v. Davidson’s Executors.

From Mecklenburg.


A. devises lands and slaves, and other personal property to M. L. D.; but if she “ dies -without having heirs, then, and in that case, the pro"perty bequeathed to her, shall be divided into foul’ equal parts, be«tween his brothers J. H. and S. and B’s children Held, that the limitation over is too remote, and that the whole estate • vests absolutely in M. L. D.

This was a bill filed for a legacy ; and it stated that Thomas Davidson made his will and died in the year 1800, and that by his will, he bequeathed as follows, that is to say — “ I give and bequeath to my daughter Mary Long Davidson, my negro woman Nanny, and all her children, together with all my lands and tene- ments, and the remaining half of my househould furni- ture and personal estate : also, my will is, that she be " allowed out of her own part, what my Executors shall i( think a sufficient sum for clothing, schooling, and boarding with her mother, according to her income, or ,£ the interest of the money: Likewise, my will is, that *164 “if the said Mary Long Davidson dies without having' “ heirs, then, and in that case, the property bequeathed to her shall be divided into four equal parts, between tny “ brothers, James, John, and Samuel, and Hugh Bryson’s “ children.” It further stated, that Mary L. Davidson was the only child of her father, and an infant at the time of his death, and shortly thereafter, departed this life herself, at the tender age of four years, and without ever having had issue. The Complainants were the remainder men to whom the estates were limited, after the death of M. L. Davidson, and brought this suit against the Executors of the will of Thomas Davidson, for an account and payment of the legacy.

The Defendants put in a general demurrer; and the cause was transferred to this Court for a decision, and was argued here by Seawell, Mordecai and Ruffin for the Complainants, and by Henderson and Gaston for the Defendants.

Arguments in support of the demurrer. — The limitation over is too remote, and is void. Words, which, applied to an estate of inheritance, create an estate-tail therein, give an absolute interest in personal property — Wilkinson v. South. * The words here would make a fee-tail, if the estate were one of inheritance. A devise to A. for life, and after his death, to his issue, is an estate-tail. So, a devise to A. and if he die without issue, remainder over, is an estate-tail. And a devise to A. and his heirs, and if he die without heirs, remainder to one who is heir to A., is an estate-tail.§ A devise to one, and if he die, not having a son, then to remain to the heirs of the testator, adjudged an estate-tail. || And Lord Hale, in the great case of King v. Milling, said the same thing. The words in *165 IVyldc v. Lewis, * were, after the devise to the wife, and if it shall happen that she shall have no son nor “ daughter by me, and for-want of such issue,” then over: And Lord Hardwicke says, there is no difference between that case and King v. MeUing, in which the devise was, if he die not having a son,” — for that, the expression “ die having no issue,” and “ die without issue,” mean the same thing. Again, one devises land to W, and if he should depart this life not having issue, then his sons-in-law should sell the land : W. had issue and died, and then the issue died without issue. It was resolved that the lands might be sold, though at the time of W’s death he liad issue; for whenever that issue failed, W. might be said to be dead without having issue. In all these cases, the word “ having” could not tie up the devise over, to the death of the first taker. And the last case is very strong; the words being “ depart this life, not « having issue.” It is directly in point, as. the words here are “ die without having heirs,” and the limitation over being to collateral heirs, which confines the word “ heirs” to issue. A distinction has, at times, been attempted between such limitations of a term in a will, as if applied to inheritances would create an express estate-tail, and those from which an estate-tail would arise by implication only. But the attempt never succeeded, so as to become a rule: at all events, it is now entirely exploded.§ The case of Bowden v. Galloway, before Lord Northington, in 1764,|| was a bequest of personalty to G. for life, and if he had no heirs, then to his sister,• and the limitation over was held void. In all the cases, whether of real or personal estate, the words “ dying without heirs or issue,” or “ without having heirs or issue,” *166necessarily operate to the enlargement of the previous estate for life, to which they are attached.* None of the cases, which would seem at first view to countenance suc^ a distinction, will be found, in fact, to do so upon minute examination. They all go upon something in the context of the will, indicating a clear intention of the testator, that the limitation over should be tied up to the death of the first taker. The leading case is Forth v. Chapman This case turned on the words, “ leave no <e issue ?’ though that observation is omitted in the report of it. But in Beauclerk v. Dormer, Lord Hard-wicke says, that he was of counsel in Forth v. Chapman, and that Lord Macclesfield laid a good deal of weight upon the particular penning of the will, and the wordS, “ have “ no issue of their respective bodies and subsequently in Sheffield v. Orrcry, § he says, Forth v. Chapman was determined upon those words. Daintry v. Daintry was decided on the same word, “ leavingin which, Lord Kenyon says, “ this is precisely the case of Forth v. es Chapman.” || And so, in Sabberton v. Sabberton, before Lord Talbot. Finbwry v. Elkin,** was determined on the words, “ then after her decease.” It is said, in the case of Nichols v. Hooper, †† that where a legacy is given on the first taker’s dying without issue, that it is to be understood a dying without issue then living. But such a construction was unnecessary in that case, and the limitation was supported on other grounds. The true reason was, because the legacies in remainder were to be paid within six months after the death of the survivor of the son and wife of the testator. The remark was made by counsel in Saltern v. Saltern, ‡‡ that in a bequest of a chattel interest to one generally, or for life, and if he die without issue, or without heirs of his body, remainder over, it should be construed tornean, a dying with issue at the time of his death. Lord Hard-*167wicke took notice of it, and replied, that he knew of no such rule; for in those cases where the Court has restrained the words to a dying without issue, at the time of the death of the first taker, there were other words or circumstances, which clearly shewed it to be the intention of the testator, so to confine them. When there is a devise of a lease for years to a man, and if he die without issue, remainder over, there is no doubt but the whole vests in the first taker. Target v. Gaunt, * was a devise to A. for life and no longer, and after his death, to such of his issue as A. should by will appoint, and in case A. should die without issue, then over. The limitation over was good, because such issue must be intended as A. could appoint the term to, that is to say, issue living at his death. JCeely v. Fowler was determined upon the ground that, in the event of a dying without issue, the estate was to return back to the Executors, to be by them divided. It was, therefore, a personal trust in the Executors. Hockly v. Maubry, and in Doe v. Lyde, § were decided in favor of the limitations over, because, in the former, the estates were given to “ R. and his issue, lawfully begotten, orto be begotten, to be divided amongst “ them as he thinks fit; and, in the latter, the devise was to Gr. and after his death, to his wife for life ; “ and after the death of the survivor of them, to their chil- “ dren, share and share alike.” Here the children could not take as heirs in succession, but must take, if at all, distributively as purchasers; and therefore no estates-tail were created, and the limitations over were good: Moreover, in Doe v. Lyde, the remainder over was after life estates only, which excludes the idea of an indefinite failure of issue. The judgments in Hughes v. Sayer, || and Nichols v. Skinner both went on the limitation over, (icing to the survivorIn Wilkinson v. South, ** the words were the same as in Pinbury v. Elking ; and *168in Doe v. Jeffery, * the limitations over were for life only, ant* a^er a dying without leaving issue. There is no expression in chis will to control the general construc-^011 °f dying without issue. Many of the cases already cited, prove that the word “ having” will not have that effect, but will create an estate-tail. There arc others still stronger — Crake v. Devandes has these words, and if he has no such heirs/’ then over ; and the limitation over is held void. So, one directs her house and all her effects to be sold and laid out in the funds for B. during his life, and if he have no heirs, to go to his sister : Lord Hardwicke held the limitation over to the sister to be too remote. He says, that if I were to determine it to be good, I should violate the principal intention of the testatrix, which was, that B. and his issue should take before the sister: — I cannot imply a gift to the issue as purchasers ,* for the word 54 heirs,” must mean heirs of the body, so as to make the estate transmissible to them by descent — that is the only way in which the issue can be preferred to the sister, as was certainly intended. The case of Attorney-General v. IKrd, § is very much like that now before the Court. The devise was of personalty to B. and the lawful heirs of his body, if he should have any; but if lie should die without lawful heirs, then over; and the limitation over was held to be too remote. The distinction between the two cases is not easily drawn for the word “ heirs” here, certainly means, heirs of the body — and the words “ if he should have any,” were particularly relied on in Altorney-General v. Uird, to shew that it was in the mind of the testatrix that he might never have any.

Arguments on the other side. — It is admitted that the word “ heirs” means issue in this case, as the limitation over is to collaterals capable of taking as heirs of M. L. *169Davidson.* The question then is, whether the testator meant by these words, “ dies without having heirs” (or issue) an indefinite failure of issue, or did he mean a dying without leaving issue at the time of the death of Mary ? The fundamental rule for the construction of all instruments, is to make them conform to the intention of the parties. In some the intention must be made apparent by terms specially appropriated for the purpose: in last wills, any words which shew the meaning of the parties, will be sufficient.

Whenever words are susceptible of two significations, the one lawful, sensible and capable of being effected, the other insensible, unlawful, or impossible, the Court presuming that every man aims at an object lawful and sensible, will give to his words the construction which goes to effect that object.

Without adverting to the word “ having” at present, it is contended, that in this State, the limitation over, upon the death of M. L. D. without issue, is good, and means a dying without leaving, issue living, at the time of her death $ such is the natural signification. In construing those words, the Judges in England have held them to mean, in relation to real estates — an indefinite failure of issue; that arose from the Statute de clonis. The ulterior limitation was not thereby treated as illegal, but full effect was given to it. A particular set of heirs were let in under the Statute, and the limitation over was supported as a remainder after the estate-tail. They, therefore,. did not depart from the natural meaning of words, to give them an illegal signification, or to deprive them of all efficacy ; but they construed them in the sense in which they were used by the testator, and permitted them to create the estate intended by him, that is an estate-tail.

*170What is to prevent the operation of these words according to their natural import, in this State ? We can give to them no artificial meaning which will transfer an estate. We cannot give a remainder in real estate after an indefinite failure of the issue of the first taker. We must, then, take them in their natural sense, or must reject them as insensible. With us, therefore, they do not denote the channel through which the estate shall pass in a course of inheritance, but only refer to a future event or particular contingency, upon which the estate shall over.

The construction of these words was afterwards applied in England to personalty, without reflecting on the difference of the nature of the two estates. Personal estate was then of small value and little regard: Insomuch, that a gift of it for a day, was a gift forever: It could not be limited over by deed, and the indulgence of doing so by will was extended with a very sparing hand. These words, therefore, which had gained a construction as to real estates, were held to have the same signification, when applied to personalty. But if they cannot, in reason, when applied to real estate in North-Carolina, have this construction, much less can they in regard to personal estate. Cessante ratione, cessat Lex. Much more, Cessante ratione, cessat con.strtjctio yerborum.

But if English cases are to govern, they are in favor of the ulterior limitation in this will. Undoubtedly a devise over, after a dying with issue, generally, is held to be too remote there. But as that construction was made by blindly following that given to the words when applied to inheritances, the Courts soon perceived the error and the inconvenience of it, and have seized any circumstance, however minute, to rescue a case from the authority of those early decisions.* In Nichols y. Hooper, there was a devise of lands to M. for life, remainder to T. and his heirs — provided if T. should die without issue of his body, then £100 to A. to be paid within six month's *171after the death of M. and A — Lord Harcourt decided that die without issue should be taken according to common parlance, and held the legacies to be personal provisions; though Lord Hardwicke assigns a different reason for it in Beanclerk and Dormer. So there was a devise, in Hockley v. Mauobry,* of real and personal estates • to R. and his issue lawfully to be begotten, to he divided-among them as he thinks Jit; and if R. shall die without issue, the estate to be sold, and the money to be divided amongst my brother’s and sister’s children — but the sale not to take place in life of R. or testator’s mother. The words to be divided among them, are laid hold of by the Chancellor to shew that the son was not intended to take an estate-tail, because the estate was to go distributively: yet, it being leasehold, it could not have gone to the issue by virtue of an entail: and as to the words, “ as he thinks (<jit,” they are immaterial, for if he made no appointment, the issue would take. This case shews the avidity of the Court to escape from the rule. Target v. Gaunt differs from Hockley v. Mawbry in this : that there is no bequest to Henry’s children, and they can take only by virtue of his appointment. Tiie bequest is to such issue as he shall appoint, and for want of issue, over. The bequest is not for want of appointment, over, which would make the appointment a personal act; but for want of issue. The Chancellor suppliesJbe word such issue, to help the intention. This is a very strong case; for if Henry had left issue, and made no appointment, Albinus woúld have taken, there being no estate given to the issue as purchasers, except as Henry’s appointees. In Pleydell v. Pleydell, the bequest was of the interest of £400, to A. for life; then to his first son until he should attain 21, at which time he should receive the principal$ but if the eldest son should die before 21, then to the second son; and if JL. should die without issue, to the testator’s right heirs — The limitation over was held good ; *172and Lord Macclesfield, who tried the cause, tells us, that he so held it because the natural meaning of the words “ die without issue,” confirms the failure to the life of the person — though Lord Hardwicke, wiser than the other, says that he had a better reason which he did not give, that is, that “ issue” meant “ such issue,” viz. sons. In Attorney-General v. Bailey,* the words “withoutissue?* were confined to such issue as had been before provided for. On a devise of a term to J. for life, then to such person as be should many, for her jointure, and after her death, to the heirs of the body of J, and the executors, administrators and assigns of such heirs, and for default of such issue of J, then to H.: the devise over was held good, because of the words executors and assigns of such heirs” — yet the words were in themselves immaterial as to limiting the quantity of the estate, and, in fact, altogether inoperative, except that they afforded the Court a way of escaping from authorities which they were unwilling to attack. So, in the case of Finbury v. Elkin, the words “ then after her decease,” were taken hold of, although they conveyed nothing more than had been before expressed ; for the brother was not to have the £80 until the wife died. That case was followed by that of Wilkinson v. South, in the King’s Bench in Lord Kenyon’s time, which turned on the same words. And in Sheppard v. Lessingham, dying without issue” is again construed, on account of the intention of the testator, to mean without having issue.” The devise in Forth v. Chapman, was of real and personal estate, to two, and if either should depart this life, and leave no issue of their respective bodies, then over : Held to create an estate-tail in the realty, and to be a good execu-tory devise of the personalty. This case has always been acquiesced in, and it evinces the anxiety of the Courts to get rid of the absurd construction of the words *173¿í die without issue,” when applied to personalty. Taken together with Southby v. Stonekouse,* and Sheffield, v. Lord Orrery, it proves the proposition advanced on the other side, that whatever words would give an estate-tail in realty will carry the whole in personalty, is not correct to that extent.

If the Court, then, can find any word in this will which can act as an auxiliary, to support the natural meaning of the words die without issue,” however minute the assistance may be, they are bound by these authorities to tie up the time to the death of M. L. Davidson. There are several circumstances that ought to have that effect.

The word “ having” is chiefly relied on. The grammatical sense of the word, standing where it docs, refers emphatically to the death of M. L. D. It may, without violence to expression, mean having had children; but it cannot extend prospectively to a future time. If Mary L, at her death, had bad a child, which died, and the question was asked, did she die without having children ? the answer would be, no, she had a child which died. But the sense of this word, either as a participle of the present or past time, answers our purpose equally well. There are two cases expressly in point, in which the words e< without having married,” are held to mean, without having ever been married, and the words “ with- “ out having children,” were construed, without having children born, or without leaving issue at the death, according to the context of the will. Weekly v. Rugg is one of them. A. gives a leasehold to his daughter D, but if she dies without having children, then over, and held good. The words child or children,” make no difference in the case 5 for they or the word son,” would be construed issue, to avoid the absurdity of excluding grandchildren, § In our case, this word having” may be allowed to retain its grammatical sense. In Weekly v. *174 Rugg, it was construed to mean having had,” in order to let in a grandchild j but as, in our case, the word is heirs,” meaning issue,” there is no necessity for that construction, because that word will embrace any chilt]ren an(j grandchildren which M. L. D. might leave at her death. According to the construction given to this word having,” in the case cited, it is more restrictive than “ leaving for by the latter, the property is tied up to the death of the first taker, whereas, by the former, it may be set free in the life of the first taker, by the birth of a child. .This is what is meant by Lord Kenyon, when he says there is a great difference between leaving” and “ having.” He did not mean that hav- ing” was more remote j for the devise over is not adjudged void in its creation upon the ground of remoteness, but to have failed by reason of the contingency, that is, by the daughter’s having a child. The other case is Bell v. Phyn, * in which B. bequeathed the residue of his personal estate to his three children, Gf, J, and C, but if any of his children died without being married and having children, the share of such child should be divided between the survivors. J. married and had one child ; and the question was, whether J. thereby took a vested interest in one-third part of the residue ? This depended upon the construction of the words “ having children.” The Master of the Rolls takes notice, that nothing in any event is given to grandchildren, but every thing in the first instance to the three children : but, says he, whether to remain with them absolutely or to go over, is to depend upon a contingency, which is that of “ having children :” either having them horn, or leaving them at his death. And after assigning his reasons for prefering, in that case, the former construction, he decides, that in the event which had happened, J*s share was vested. This case is peculiarly applicable ; because the reason given for vesting the legacy upon the *175birth of a child, is, that it would be unreasonable, if the testator’s children should have children, that it should be out of the power of the parent to touch the capital for the purposes of educating or advancing his children, because the children might possibly die before the parent; though the only consequence of surviving the parent would be, not that the children would take any thing, but that the parent might dispose of the whole as he thought fit. So here. Why tie up the estate to the death of M; L. D, to see if any issue she may have shall survive her.? For her issue, as such, cannot take under the limitation, according to our Law. If, however, it is to be taken in the present tense, then it refers to the time of her death, according to Lord Hardwicke’s comment of leaving,” as a participle of the present tense, in Read v. Snell. * The dictum of Lord Hale, quoted on the other side, was not uttered to test the efficacy of the word *e having,” but to shew that “ son” was in that case nomen colledevium. The case oí,Wild v. Lewis, did not turn on the word have.” It is a devise to Elizabeth, my wife, and if she shall have no son or daughter by me, for want of such issue to return to the plaintiff, if he shall then be living, he paying to A. and B. £150, within a year after the death of Elizabeth. The devise over to the brother, if then living, and the bequest of the £150, as in Nichols v. Hooper, shew that the testator meant to confine the contingency to the death of the wife. The case, therefore, is to be supported upon the principle of making the particular yield to the general intention of the testator ,• for without such construction a grandchild could not have takpn. The case from l-Leon. 285, is reported in Cro. Elica. 26, and in Lhjer, 219, a. in the note, and the word “ having” is not used in them at all. It is a devise to William, in tail, and if he depart without 4'e issue, that his sons-in-law should sell.” One of the *176sons-in-law dies, William dies, leaving issue a daughter, who dies, and the question is, whether the surviving son-in-law alone could sell.

- ‘ Again : The words “ then and in that case,” are used jn this will. In Piribury v. Elkin, the Chancellor relied on “ then afterand in Wilkinson v. South, Lord Kenyon calls then” an adverb of time, and says, there is a case in the Books to shew that then and when are adverbs of time. But if it would not do when standing alone, yet Coupled with the other words “ in that case,” it is certainly an adverb of time. The estate is to go over “ then,” that is, upon the death of the daughter, “ in case” she dies without having a child. It is easy to see the operation of the testator’s mind, while writing this clause. After writing the word “ then,” the idea occurred to him, that that would mean at his daughter’s death}, ho therefore qualifies it by adding in that case as much as to say, the estate is not to go over at all events at my daughter’s death, but only in case she then has no child.

Whenever it can be perceived, that the testator intended a personal benefit to the ulterior devisees, the failure of issue will be confined to the death of the first taker. In Beauclerk v. Dormer, Lord Hardwicke says, a strong ££ argument might be drawn from the £5000, given to « Lady D. B, if it was merely personal to her, and not /££ to arise unless she survived Miss Dormer ,• but the ar- ££ gument is defeated by its being vested and transmis- ££ sible.” But the .question is not, whether, in fact, the legacy is merely personal, but whether the testator intended a personal kindness to the legatee. In Pinbury v. Elkin, although one ground of the opinion was, that the £100 was intended as a personal benefit, yet it was decreed to the executor. In Donne v. Merrifield, the words executors, administrators and assigns,” though immaterial, were considered as furnishing evidence of intention. Wi'mot says, in Keely v. Fowler,* we are not to *177consider of legal consequences of legal representations, but what the testator meant by giving to the executor. And Smith y. Fisher,* lays down the rule, that where the bequest over, is in the direction to divide the estate, the legacy is personal.

Part of the estate given here, is specific personal property, that is to say, slaves. From its nature, it could not be intended that'it should go over only upon an indefinite failure of the issue of M. L. D. This argument is said, in a case in 2 Hayw. Reports, to have the merit of novelty. It seems not to be entitled to that; for it had its weight in Keely v. Fowler, and the counsel in the Attorney-General v. Bird, relies upon it. It does se.em strange to suppose, that a testator can contemplate ne-groes to go over two or three centuries hence.


It has been contended, that the limitation over is, 1st, on the event of Mary not leaving a child at her death — or 2dly, never having had any child. Neither ground is tenable.

Whenever the limitation over, is after a dying without issue, unless there be some distinct expression to tie up the meaning of these words, or clear circumstances to demonstrate, that they were used in a mpre restricted sense, the limitation over is held to be after an indefinite failure of issue, and to be too remote as an executory devise. Beauclerk v. Dormer, Saltern v. Saltern, Biggs v. Bensley, § Chandless v. Price, || and Butterfield v. Butterfield. There are no words here which can legally have this effect. When words have obtained, by repeat-, ed adjudications, a defined meaning, it becomes a rule of property to assign such meaning to them, as Lord Eldon, Chief-Justice Parsons, and Chancellor Rent have all said.**

*178The words relied on ave, ef then and in that case.” They are insufficient. “ .Then” is time, it is true, but what time ? In that case,” tells us, not at her decease, but only, when this case shall happen — What case ? is a question which recurs. Mere weirds determine nothing. In Biggs v. Benslsy, the words wore, “ in case of the death of F. 11. without issue, then” over — and were held not to vary the rule. So in these other cases these words were used, viz :

In Green v. Boíl, “ in case my sister dies without issue, “ then,” &c.

In Milwonl v. Milword,*in case either die without' issue, his part to go,” &c.

In Beauclerk v. Dormer, “ if Miss Dormer die without “ issue, then to Lord Beauclerk.”

In Cruger v. Ileyword, bequest of slaves to B. “ but “ in case he die without issue, then to D. and his heirs “ forever.”

In Boyall v. Eppes, it is said, the words then and in <( that case, do not justify the adoption of the restrictive “ sense of dymg without issue.”

Nor will the words “ without having heirs,” operate further. The sense of these has been fully ascertained and precisely fixed by repeated decisions. Gilberts Dev. 33 — Sunday’s Case, 9 Go. 127 — King v. Melting, 1 Vent. 227' — 1 Mk. 423 — In 1 Leon. 225, there is a devise to a son, and if he die, not having issue, the land is to be sold, and hold to mean an indefinite failure of issue. So Lord Hardwifcke expressly says, that “ having no issue” has always been considered in the same light as for want of issue.” And the case 6 Taunt. Rep. 263, turns directly on the words “ having no issue,” which are declared not to be restrictive. Mtorney-General v. Bird is particularly strong for us, because the words are, “ if he should have any,” thus not only using the word have, but making it more emphatical by the other word any. And the case *179of Crook v. Be Vandes, is decisive of tlte question. That .is a bequest to A. and the- heirs of his body, and if he hits no such heirs, over. Lord Eldon held the limitation over to be too remote, and contrasted the meaning of have and leave, by saying, that if the will had been if lie leaves no issue,” the limitation over would have been good. If these cases needed, or could receive, confirmation, they obtain it by observing that the limitations in many trying cases, have been supported by the peculiar force of the words “ leave” and leaving.” Such are the cases of Shtffield' vi Orrery, Baintry. v. Baintry, Seed v. Scull, and Weekly v. Eugg. In this last case, Lord Kenyon remarks, that leaving” is essentially different from “ having •” and in 2 Bos. & Pul. 327, Lord Eldon draws the distinction between that and Clatch’s case — the one being “ leaving,” and the other “ having.”

The cases which turn upon the words “ to be divided,” and have been cited by the other side, are not law. Reely and Fowler has been explained by Mr. Fcarne, and denied ; and it has been justly reprobated by Lord Tlmr-low. Smith v. Fisher, as reported in 2 Hep. in Chan. is contrary to a fuller and better report of it in 2 Vern. 38, 59, which agrees with Mr. Fearne’s opinion.* And this position is expressly opposed to the cases of Earl of Stafford v. Buckley, and Green v. Rod.

The cases of Weekly v. Rugg, and Bell v. Fhynn, are both decided with the view of avoiding the inconvenience of giving a strict meaning to the words 15 child or children.” Those words, and not that of “ having,” determined the questions. To construe them as authorities for making die without issue,” or “ without having “ issue,” mean without having ever had a child,” would be to prostrate the whole edifice, which has been building for ages. It would reverse all the cases enumerated, and particularly, Attorney General v. Hird, Boden v. Watson, and Crook v. Be Vandes. It having been repeatedly decided, that to die without having issue is the same as to *180die without issue, all the cases upon these last words, in which they have heen pronounced too general, would at once be reversed. In fine, it would stamp with folly all antecedent discussions and decisions — in which the great enquiry has been, for words to tie up the contingency to the moment of death but now it is found, that all might be sustained by a slight interpolation — by turning the present into the past tense.

The decision of this question is immensely important. Jones v. Spaight has settled, that the same interpretation must prevail, whether the estate be real or personal. A decision in favor of this limitation must remove all land-marks ; certainty and stability in the laws of property, are infinitely important. We had supposed that such certainty was effected by the previous cases in this State; Sutton v. Wood, * JeffHes v. Hunt, Mathews v. Daniel, Bryant v. Deberry,§ and the case of Bryson v. Davidson, on this very will, in this Court, at December Term, 1806.

The nature of the property will not alter the construction here. It is true, that negroes form a part of it j but that cannot make a difference. The rules are laid down for real and for personal property, and are adapted to their different natures : but there is none founded on a distinction, between different species of personal property. At all events, the devise here is of lands and of half his personal estate, generally, as well as of specific slaves ; and of the slaves, it is to be remarked, that their children as well as the parents themselves, are included in the limitation over: — so that no argument can be drawn from this part of the case,

Tayrok, Chief-Justice.

The general principle on ■which this case must be decided, is, that where such ■words are used in a will, in relation to personal property, as would have created an estate-tail in real property, *181they give the absolute property in personalty, and the limitations over are void. The exception to the rule is, that if it appear from any clause or circumstance in the will, that the testator intended to give it over, only in case the first taker had no issue, living at the time of his death, then the subsequent limitation, will be good as an executory devise. It was impossible for M. L. Davidson to die without heirs, while the ulterior legatees were alive ; the. word heirs must, therefore, be construed heirs of the body, and would, if applied to real estate, before the act of 1784, have constituted an estate-tail.

It is not material to enquire, whether the words of the will would have created an express estate-tail, or an estate-tail by implication ; because, in either case, a limitation over1, after an indefinite failure of issue, is too remote. If the limitation depend alone, upon the import of the wortjg, “ dying without issue the question still recurs, are there any circumstances or expressions in the will, from which it can be justly inferred, that the intention was to confine the signification of the words, to a dying without issue “ then living ?”

It has been conceded by the Complainants’ counsel, that a limitation over, after a general dying without issue, is too remote; but it is argued, that the words, i( dies without having heirs,” restrict it to the death of M. L. Davidson; that they shew the intention of the testator to have been so ; and that this ought always to be effectuated, where the Court is not compelled by the, law, to give a different construction to the words.

The foundation of this argument must be laid, by proving that the words used in this will, have a different signification from the words if he dies without heirs for, if the two sets of expressions mean the same thing, the Court is not at liberty to depart from the established judicial sense of words, whatever may be the intention* Chandless v. Price.*

*182It is probable, though I am aware that there are some very respectable opinions to- the contrary, that a limitation over, on the event of dying1 without issue, is always intended to apply to a failure of issue, at the period of the death of the first taker; yet the authorities, uniformly, construe it an indefinite failure, unless the words are controlled by the intention appearing from other parts of the will.

This construction is highly technical and refined, and seems generally considered to be derived from the Statute de donis, which recites, “ and whereas if such feof- fees had no issue, and even if there had been any is- sue, which had afterwards died, the land ought,, by the express form of the gift, to revert to the donor or his " heirs.”

If the question were new in this State, I will hazard the conjecture, that this Court would construe these words in their natural sense, and reject tfie artificial one; but this cannot now be done, without overturning a long train of authorities, which have been repeatedly-confirmed, and acted upon, by all the tribunals of this country; and according to which, controversies have been adjudged, from the first settlement of the State. We could not change the legal operation of these words, without removing land-marks, and throwing a vexy large portion of the property of the citizens, into litigation and insecurity.

Between the words, the settled construction of which has thus become a part of the law of the land, and those employed in the will before us, I am unable to perceive a difference : and, I collect from the authorities, that they always receive the same construction, whenever the question is, as to the remoteness of the limitation.

In Boden v. Watson, * there was a bequest of personal 'estate to one for life, and if he has no heirs, over. The Chancellor held it to be the same as if given to him for life, and to the heirs of his body, and if no such heirs, *183then over; that the failure of heirs was not confined to a particular time, but was general. Upon this case, it need not be remarked, that the words would seem, to a person who receives their meaning from common acceptation, to restrain the failure of heirs to the death of the devisee; and that if 44 having” has any peculiar force from being a participle of the present tense, 44 has” is at least of as much efficacy, from being a verb of the present tense.

In Crook v. De Vandes,* there was a devise and bequest to A. for life, and the heirs of his body, with a limitation over, if he has no such heirs. It was held to be an estate-tail in the real, and an absolute interest in the personal estate, the limitation over being void. Why could not the word 44 has” have restrained the failure of heirs to the death of Á. in that case ? Because it imported the same thing with a general dying without heirs. The word 44 having” in this will, can signify neither more nor less.

In Tate v. Tally, a devise was made of land to I.- T. one of the testator’s sous, with a proviso that if the said I. T. should die, not having any lawful heir of his body, then the said land should go to another son. This was held to be an estate-tail in I. T. The equivalent import of the words is further shewn in King v. Mellish, and Wylde v. Lewis. §

It is further argued for the Complainants, that the words “then and in that case,” shew the intention to be to confine the having no heirs, to the period of the death of M. L. Davidson.

The word 44 then” wTas relied upon in Beauclerk v. Dormer,|| but the Chancellor laid no stress on it, holding that, though in its grammatical sense, it was an adverb of time, yet in the limitation of estates, it is a word of reference; and relates to the determination of the first limitation. In Biggs v. Bensley, the words were, 44 in *184« case of the death of F. H. without issue,” and it was argued that the death of F. H. was the circumstance to regulate the question: it was to be decided then : if the ulterior legatee took then, he took absolutely; if he did not take then, he never took. But it was held, in conformity with the case of Beauclerk v. Dormer, that the word then could not, and never did make the difference: that it was merely a word of relation, and not an adverb of time. In Royall v. Eppes, * the words of the will were, “ it is my will and desire, that in case my son should die without heir of his body, lawfully begotten, “ that then and in that case, I give to my wife, Lucy,” &c. These expressions were relied on by the counsel for the ulterior legatee, for the same purpose as in the cases before quoted. But the Court, in giving the opinion, say, “ that while, even in relation to personal estate, as to which a more liberal rule of construction has es prevailed, the Court does not see that either the terms, “ then and in that case, or the word heir, used in the sin-guiar number, would justify them in adopting the restrictive construction, under the decisions on this sub-ie ject, either in this country or in England,” &c. They then proceed, and do adopt, the restrictive construction, from another, and a stronger, circumstance in the will. This point, then, .seems to be completely settled by authority.

That numerous class of cases has been referred to, which shews what slight circumstances have been laid hold of, to tie up the generalty of the expression, “ dying without issue,” and to confine them to dying without issue, living at the time of the person’s decease.

In Target v. Gaunt, a term was devised to A. for life, remainder to such of his issue as he shall appoint, and if A. die without issue, remainder to B. It was held to be a good' limitation to B, because the testator must have intended such of A’s issue as he might appoint the term to, and that must be intended issue then living.

*185This case contains a pretty clear explanation of what was meant by “ dying without issue,” for it could not be indefinite, if A. was to make the appointment. Indeed, in every one of these cases, which it would be an unprofitable toil to re-state, the legal meaning of the words was narrowed by expressions or circumstances that raised a fair inference of restrictive intention, or, as it has been expressed, the construction was varied by circumstances arising on fair demonstration. There do not appear to me to be any such in this will, that will justify the Court in wandering from the settled construction ; and I therefore think the bill should be dismissed with costs.

.Hail, Judge.

By the statute de donis it is declared, that the will of the donor of lands and tenements, shall be observed ; and the tenements given to a man and tiie heirs of his body, shall go, at all events, to the issue, if there be any; or, if there be none, shall revert to the donor; or the same may be limited over to another person, by way of remainder. If land were thus given to a man,1 and, “ if he die without issue,” remainder over to another, this remainder need not vest in possession at the time of the death of the donee in tail: It did not depend upon the contingency of his having or not having issue living at the time of his death j but the remainder might thus vest at any future period, when the issue, if the donee left any surviving him, might become extinct.* Thus it vests in possession whenever the issue shall fail, and, as there can be no specific time fixed for that event, we call the period indefinite, and the remainder limited to take effect upon such an estate, we call a remainder to vest in possession after an indefinite failure of the issue in tail. The same rule of construction prevailed when the lands were limited over after a dying without " leaving issue,” or “ having issue,” or “ if he shall die -1 and has no issue,” or when any similar expression *186was used. They were all construed to mean an indefinite failure of issue, in order that the “ will of the donor might be observed.”

Without the same reason, the same rule of construction was adopted in regard to personal property, (which was not within the purview of the statute,) with some few exceptions. The construction, as applied to the two kinds of estates, was followed by very different consequences. The limitation over of lands was lawful, and held to be good — but the Courts did not decide that limitations after an indefinite failure of issue, were lawful limitations of personal property. On the contrary, the Courts holding a limitation of personal property after a dying without issue,” to mean, after an indefinite failure of issue, adjudged it, as such, to be unlawful, because it tended to a perpetuity 3 and they would riot, therefore, allowT such a limitation to take effect, but made the whole vest absolutely in the first taker.—Leventhrop v. Ashby. *

There can be no doubt but the construction is contrary to the vulgar and grammatical sense of the expressions 3 but it has become a fixed rulé of property. It is a legal, and technical construction, which it is too late to depart from.

It is true, that in limitations of personals, the Court will lay hold of any clause in a will, which affords demonstration that the testator intended to tie up the contingency, to the time of the death of the first legatee. But such words as those before adverted to, that is to say, “ dying without issue,” and the others, will not, per se, have that effect. The words, “ dying without leave( ing issue,” in limitations of personals, are an exception from the general rule, from the strong import of leaving.” It has been argued, that the word <( having” is, (like leaving,”) a participle of the present tense, and means and marks the same period of time. It is *187true, that it does, in its grammatical and vulgar sense. So does the expression, <f if he dies and has uo issue”— the word “ has” is in the present tense, and, grammatically speaking, would tie up the contingency to the time of the death — yet the legal and technical meaning is otherwise.* The same may be said of the words dy- ing without issue.” In their vulgar and grammatical sense, they mean the same as “ leaving no issue;” but their technical sense is very dilferent. So that, if we were to give a vulgar and grammatical construction to the word having,” in this case, and to the other expressions which mean the same thing, the technical and legal rule of construction, which has so long prevailed, would be abolished. However much it is to be regretted, that such is the rulé, I think we cannot now alter it; and that we must decree for the Defendants. It matters not, whether the property be viewed, in this case, as real or personal. If real, the act of 1784 converts into a fee-simple in the first devisee: If personal, the limitation over is too remote, and the same consequence follows, that is, the first taker has the whole.

HeNdersox, Judge.

I cannot better express my opinion, than by using the words of a celebrated English Judge: “ The construction outrages grammar, and what is worse, it outrages common sense$ it is a bit- ter pill, but we must swallow it because others have done the same;” — we are bound to follow, and not to lead. The judicial construction put upon the words is too uniform, and of too long continuance now Jo be altered. It would unsettle too much property, and open the door for a flood of litigation. I am therefore bound to say, that the demurrer be sustained, and the bill dismissed with costs.