McRee's Adm'rs v. Means , 34 Ala. 349 ( 1859 )

A. J. WALKER, C. J.

The will of Martha Ann Mcliee contains a clause in the following words: “3d. 1 give, bequeath and devise all the halunce of my property and estate, both real, mixed and personal; also alt dioses in action, and chattels, to my beloved husband, Caleb P. Mcliee, to have and lo hold said property and estate, real, mixed, personal, dioses in action and chattels, to him, the said Caleb P., his heirs and assigns forever, to his use, behoof, and benefit, in fee simple. But, should my said husband die without issue oe iiis BODY, IT IS MY WISH AND WILL, IIE SHALL GIVE ALL OE SAID PROPERTY TO RpBERT P. MEANS.”

Caleb P. Mcliee having died intestate, and without descendants, the title to the property bequeathed to him depends upon the question, whether there is a valid limitation over to Robert P. Means; and that is the question of this case.

[1.] In the investigation of the question just stated, the first point of inquiry which presents itself, is, whether the words, “it is my wish and will he shall give all of said property to Robert P. Means,” left it discretionary with McRee to give or not to give to Means, or imposed it upon him as a duty to give the property; or, in other words, whether the testatrix has simply made a suggestion or recommendation, which might be obeyed or disobeyed, or has created an obligatory trust, which a court of chancery will enforce. The intention of the testatrix, as deduced from the words themselves and from the context, must control this, as it should all other inquiries involving the construction of wills. In our argument we shall adopt, without questioning or affirming its correctness, the principle, that the words are to be understood “ in their natural, ordinary and familiar sense,” and will uot attempt to draw from the ancient English cases any artificial rule for their construction. — Ellis v. Ellis, 15 Ala. 296; 2 Story’s Eq. Jur. § 1069.

What, then, is the natural, ordinary and familiar sense of the words “wish and will?” Do they import an imperative requisition that McRco should give the property to Means, or are they merely significant of a moral suggestion to that effect ? The two words, “ wish and will,” are both employed by the testatrix in the order in wlii Jn we present them. She first 'expresses her “ wish,” and then her “ will.” The former of the two words, in its common acceptation, is better adapted than the latter to convey the idea of a request made, which may or may not be granted. That, perhaps, is the sense in which it is most generally used in conversation. But the testatrix has not stopped with the use of this word, significant of petition. She has added another and more emphatic word, “ will.” The question, why was she not content with the former oi the two words, is suggestive of the conclusion, that it was designed to add the mandate of one having a right of command to the force which a mere request might carry. And that consideration is the more significant, because the additional word ivas, at all events, unnecessary, if it was designed to make a compliance with her request a discretionary matter.

Will is sometimes used as the synonym of choice, wish, pleasure; but it is also used frequently in the sense of command, direction, determination, and resolution. It has, when found in testamentary papers, a universally received mandatory signification. Swinburne’s definition of a testament is, “a just sentence of our will, touching that we would have done after our death.” — 1 Swin. on "Wills, 4. Again, the same author says, (page 19.) “ the will, or meaning of the testator, is the queen or empress of the testament.” The same definition is also given by other authors. — 10 Bacon’s Abr. 479 , Bouvier’s Law Dictionary.

In Gilbert v. Chapin, 19 Conn. 351, the word will is used in contra-distinction to precatory language, as will be seen by the following quotations. “ It is said that preca-tory language, or words of recommendation, are expressive of a testator’s will and intention. It is true that such forms of expression declare a wish, a preference, but not a will in its appropriate sense. They express an intention, or rather a desire, not absolutely, but with a qualification or condition, that such desire shall nevertheless be subject to the future discretion aud action of the devisee. And the distinction between this and an imperative direction, which, in legal parlance, is a will, is very intelligible and clear.” This extract indicates an opinion of the Connecticut court, that “will” is the antithesis of words of recommendation and request, not creating a trust, and carries with its use an imperative direction.

The same meaning has also been attributed to the word in South Carolina, where it is spoken of and distinguished from “wish.” — Brunson v. Hunter, 2 Hill’s Ch. 490. Chief-Justice Marshall had the same view of the import of the word, for he said: “ The first and great rule in the exposition of wills, to which all other rules must bend, is, that the intention of the testator, expressed in his will, shall prevail, provided it be consistent with the rules of law. This principle is generally asserted in the construction of every testamentary disposition. It is emphatically theivill of the person who makes it, and is defined to be the declaration of a man’s intentions, which he wills to be performed after its death.” — -6 Bacon’s Abr. 16; also, 2 Black. Com. 499; Eels v. England, 2 Vernon, 466; Forbes v. Ball, 3 Mer. 436.

The common acceptation of the word will corresponds with the meaning adopted by law-writers. There is no other word of more common and familiar use to describe the mental operation involved in the act of making a bequest of property. While the books abound in cases, where words less imperative than will have been held to create trusts, we have not found, and the industry,of counsel has not produced, a single case in which “ will ” has not been treated as mandatory. The word “ will,” we decide, therefore, ex vi termini imports an obligatory direction by the testatiix. Judge Story, in his Commentary on Equity Jurisprudence, said, that words of recommendation, and others precatory in their nature, imply a discretion, as contra-distinguished from peremptory orders; and, therefore, ought to be so construed, unless a different sense is irresistibty forced upon them. — 2 Story’s Eq. § 1069. That principle does not interfere with our conclusion. We do not regard the words here as being, per se, precatory wórds, or words of recommendation. The word “will” does not, of itself, import a prayer, request, entreaty or recommendation to another; and is, therefore, not one of those words which, Judge Story thinks, ought to be regarded as addressed to the discretion, unless a different sense is irresistibly forced upon it. In the two cases of Eels v. England, and Eorbes v. Ball, supra, in which the word will occurs, it was not declared to be a precatory word; but in both cases, the trusts were maintained.

While the word “ will,” per se, has an imperative force, we do not doubt that its meaning may be controlled by the coutext, and that the other parts of the will might be such as to require a different understanding of it. An argument in favor of withholding from the words “ wish and will.” an imperative signification, is drawn from the fact, that McKee is under the clause to “gire:” “It is my wish and will he shall give,” &c. The argument would certainly be entitled to great force, if give were only used to designate a purely voluntary act. But the word is appropriate to describe the act of transferring the title of property, without a compensation, under a power coupled with a duty of performance. If it is by the will now before us made tire duty of a first taker to transfer the property to a given person, it would involve no per version of the word to call that act a gift. Indeed, it is a gift from the testatrix, through the agency of a trustee, not the less so than it would have been had the agency of an executor been employed. If the testatrix had said, ‘ I direct that he shall give,’ no one would have doubted that give was simply designed to describe the act of transfer in obedience to the requisition of the will. Such language would not essentially differ from that before us, and the proper construction seems equally obvious.

Another objection made to the allowance of an obligatory meaning to “ will,” is, that in other clauses, in which the testatrix manifestly .designs to effect a complete bequest, she has used different words — in two of the clauses, “give, bequeath, and devise.” In this objection there can bo no force, if we regard “will” asan operative word of devise. There is a rule, which seeks for a word the same signification, where it occurs more than once in the will. But there is no rule which inhibits the use of different apt words to convey the same meaning, in different parts of the will.

[2.] The argument against the conclusion that the testatrix designed to create a trust in favor of Means, which has struck us with most force, is, that the terms describing the title vested in McRee are inconsistent and irreconcilable with the words by virtue of which Means claims, if those words create a trust; and that a reconcilement may be effected, by imputing to the testatrix a design simply to make a request in favor of Means. This point is kindred to another made for the appellant. The latter point is,' that an unlimited power of disposition is bestowed upon McRee, to which a trust in the contingency of his dying without issue would be repugnant, and therefore void. These two points are met by the same argument, and may be considered together; for, if the rights and powers bestowed upon McRee are not legally inconsistent with the trust claimed by Means, there is neither repugnancy nor a necessity for imputing to the words an unusual meaning.

The bequest to McRee is of all the balance of the property, to have and hold to him, “ his heirs and assigns, forever, to his use, behoof, and benefit, in fee simple.” The bequest claimed for Means is ot the same property, in the contingency of McRee dying without issue of his body. The two occur in the same clause of the will. Is the latter void on account of its repugnancy to the former? The limitation over in favor of Means, if valid, is an exe-cutory devise. It is a principle of law, too well settled to be controverted, that an absolute power of disposition or alienation in the first taker defeats a limitation over by way of executory devise. — Flinn v. Davis, 18 Ala. 132 ; Weathers v. Patterson, 30 Ala. 404; Denson v. Mitchell, 26 Ala. 360; 4 Kent’s Com. (m. p.) 270. This principle does not assert, that if an estate in fee is given, there can not be a subsequent limitation over by way of executory-devise, notwithstanding the right of alienation and disposal is incident to every fee. If such were the effect of the principle, it would destroy altogether that class of execu-tory devises which take effect in defeasance or abridgment of the prior estate. It is settled, that by an executory devise a fee may be limited after a fee, or a limitation may take effect in qualification, abridgment, or defeasance of the preceding estate. — 4 Kent’s Com. 297; 6 Green. Cruise on Real Property, 366 ; Marks v. Marks, 10 Mod. 419; Pells v. Brown, Cro. Jac. 690; Isbell v. Maclin, 24 Ala. 316 ; Fearne on Remainders, 13, 371.

In the ease of Pells v. Brown, supra, which is the leading ease upon the subject, the devise was to Thomas and his heirs forever, and, if Thomas died without issue, then over; and the limitation over was hold good as an execu-tory devise. The proposition, therefore, that the power of disposition incident to every fee defeats an executory devise limited upon it, is not maintainable ; and the principle, that where there is an absolute power of disposition, the limitation over is repugnant and void, must not be understood to assert that proposition.

What is meant by the absolute power of disposition which defeats an executory devise, can best be ascertained by referring to the reason upon which the principle is founded. One of the distinguishing properties of an exe-cutory devise is its indestructibility and its total exemption from the power and control of the first taker. — Fearne on Rem. 418-419-420; 4 Kent’s Com. 297. As a consequence of this characteristic of executory devises, when the testator’s intention to place the limitation over under the power of disposition of the first taker appears, the executory devise is void. The absolute power of disposition, which defeats the limitation over, is, therefore, a power to destroy it by alienation, and not merely a power to alien the estate vested in the first taker. This will be apparent by a recurrence to the authorities, which show that an absolute power of disposition makes the limitation over repugnant, only because an executory devise is indestructible; and that the doctrine of repugnancy never lias been applied, except in eases where the power of disposition ini ringed the limitation over.

Kent’s statement of the doctrine is as follows: “ The executory interest is wholly exempted from the power of the first devisee or taker. If, therefore, there be an absolute power of disposition given by the will to the first taker; as if an estate be devised to A in fee, and if he dies possessed of the property without lawful issue, the remainder over, or remainder over of the property which he, dying without heirs, should leave, or without selling or devising the same ; in all such cases, the remainder over is void as a remainder, because of the preceding fee; and it is void by way of executory devise, because the limitation is inconsistent with the absolute estate or power of disposition expressly given, or necessarily implied by the will. A valid executory devise can not exist under an absolute power of disposition in the first taker.”

To prove that, in every case in which the limitation over has been held void for repugnancy, there was an express or implied power of disposition inconsistent with it, and infringing it, we make the following succinct statement of the point decided in several English and American cases. In Cuthbert v. Purrier, 4 Jac. (4 Cond. Eng. Ch. R.) 415, the power of alienation inconsistent with the executory devise was giveu, by making the intestacy of the first taker one of the contingencies upon which the limitation over was to take effect. Such is the view taken of the case in Keyes on Chattels, § 154 ; and it is the only manner in which it can be reconciled with the other cases. So the limitation was repugnant in Bourn v. Gibbs, 1 Russ. & M. 615, (5 Eng. Ch. 615,) because it was limited upon the contingency of not being disposed of by the first taker in her life time, or by her will. So, also, in the Attorney-General v. Hall, Fitzgibbon’s R., the first taker had the power of alienation and consumption, because the limitation was of so much as he might die possessed, and the limitation was therefore repugnant. — Keyes on Chat. § 146. The limitation over was declared void in Ross v. Ross, 1 Jac. & Walker, 154, because it was limited upon the contingency of the first taker not disposing of the property by will or otherwise. In the case of Meredith v. Henenge, 1 Sim. 543, the testator gave the property to his wife, u unfettered and unlimited that, together with some other expressions in the will, was deemed sufficient to justify the conclusion, that certain words of entreaty which followed were not designed to create a trust, and that the wife took the absolute estate. The words “ unfettered and unlimited ” were regarded as showing the intention that the wife should have the power of disposition of the entire estate, and thus leave nothing for the operation of a trust limited over. This case, therefore, sustains the proposition now in hand. Yet it is proper to remark in reference to it, that it does not afford a criterion for the construction of the language before us. The words “ unfettered and unlimited” might well be deemed sufficient to show that no trust was created by words of entreaty which follow, and yet be insufficient to show that no trust was created by mandatory words, such as “ will,” in this case. So, too, those words, in connection with other expressions of the same tendency, might be sufficient to overcome any force of following words of entreaty, and to show a power of disposition qualified ; and yet be insufficient to show that no trust was created by mandatory words, such as “will” in this ease.^ “Unlimited and unfettered” were regarded as negativing the intention of the testator to limit the wife’s estate by imposing trusts which it was attempted to imply from ambiguous language.

In the United States, limitations over have been held void for repugnancy, where the contingency was the death, of the first taker, “ without giving, devising, and bequeathing by will, or otherwise selling or assigning the estate, or any part thereof.” — Jackson v. Robbins, 16 Johns, 538, where the limitation was of such property as the first taker died possessed of; Jackson v. Bull, 10 Johns, 19, where the limitation was of such estate as'the first taker might leave; Ide v. Ide, 4 Mass. 500, where the first taker had an express power to dispose of the property at discretion while she lived and at her death ; Newland v. Newland, 1 Jones’ (N. C.) Law, 463, where there was an express provision that the property was to be at the disposal of the first taker; Ferris v. Gibson, 4 Ed. Ch. 710, where the limitation over was of all the property, if any remained; Ramsdell v. Ramsdell, 21 Maine, 288, where one of the contingencies was, if the first taker should not sell the land; Melson v. Doe, 4 Leigh, 408, where the limitation was of so much of the estate as might remain undisposed of by the first taker; Riddick v. Cohoon, 4 Randolph, 547; see, also, Williams v. Jones, 2 Swan, 620; Pushman v. Filleter, 3 Ves. 7; Davis v. Richardson, 10 Yerg. 290; Cook v. Walker, 15 Geo. 457 ; Hill v. Hill, 4 Barb. 427 ; Chrystie v. Phyfe, 22 Barb. 218; Theological Seminary v. Cole, 18 Barb. 376.

The citation of these cases, and the reasoning upon which they proceed, are abundantly sufficient to show that the absolute power of disposition in the first taker, to which a limitation over is repugnant, is a power to dispose of the entire estate, including the limitation, and in destruction of the limitation. Such power of disposal seems to be called absolute, in contra-distinction to the power of disposition of a defeasible fee vested in the first taker. The power of alienation, incident to the vesting of a fee in the first taker, is not inconsistent with the limitation over; for, as the limitation over may take effect in defeasance of the fee, so it. may of an estate conveyed under his power of alienation. It may operate not only against the first taker himself, but also against air alienee. The bo-stowment of a fee upon the first taker indicates no intention of the testator to give a power to destroy the limitation over. The language vesting a fee in the first taker is reconcilable with that creating the limitation over, upon the supposition that the latter is a qualification of the former. It is true, as contended by the appellants’ counsel, that words which create a fee-simple title, of themselves, import the vesting of an estate subject to no defeasance or condition ; but that does not Interfere with the other doctrine, that snob words may bo qualified by words creating a limitation over by executory devise; for Blackstone, tbe appellants’ authority for the effect of a fee-simple title, gives as an example of an executory devise, a devise to A. and his heirs, but if A. dies before the age of twenty-one, to B. and his heirs.

What we have already said shows that there is no re-pugnancy because the estate of the first taker is to him and his heirs forever in fee simple. They do nothing more than appropriately describe a title in fee simple. But the testatrix has employed other words. The estate is to him, “his heirs and assigns forever, to his use, behoof and benefit, in foe simple.” Assigns, to his use, behoof and benefit, cannot be construed as evincing a design to clothe the first taker with the power of destroying the limitation over. Certainly those words evidence an intention that the first taker should have the use and benefit of the property and the power of alienation; but they add nothing whatever to the force of the accustomed words used in the creation of a fee-simple title. All that they import would have been implied without them. They are added here, as suclT words frequently are in deeds and wills, from a superabundant caution. There is no conceivable reason why a testatrix should be allowed to qualify an estate in fee simple, unaccompanied by those words, and yet be denied a similar power when they? are added. Those words, as well as the accustomed words descriptive of a fee simple, all find their operation in describing the estate and the powers of the first taker, and those coming in under him if the contingency upon which the execu-tory devise is limited does not occur.

The cases fully sustain the construction which v?e place upon the words assigns, use, behoof and benefit. In Parsons v. Baker, 18 Yesey?, the devise was to the first taker, “his heirs and assigns, foreverand yet the limitation over upon the contingency of his having no child or children was sustained. The decision in Pierson v. Garnett, 2 Bro. Ch. 38, where the bequest was to P. P., “ his executors, administrators and assigns,” was the same. The master of the rolls said: “I think no stress can be laid on the words executors, administrators and assigns.”

The decision by Chief-Justice Marshall in Smith v. Bell, 6 Peters, 68, construed a will in which the testator gave his personal estate to his wife, “to and for her own use and disposal absolutely; the remainder after her decease to be for the use of the said Jesse Goodwin.” It was decided, that upon the wife’s death, the property went to Jesse Goodwin. The opinion contains the following remarks, as to the qualification of the estate given to the wife: “ The first part of the clause, which gives the personal estate to the wife, would undoubtedly, if standing alone, give it to her absolutely. The operation of these words, when standing alone, cannot be questioned. But suppose the testator had added the words ‘ during her life.’ These words would have restrained those which preceded them, and have limited the use and benefit, and the absolute disposal given by the prior words, to the use and benefit, and to a disposal for the life of the wife. The words, then, are. susceptible of such limitation. It may be imposed on them by other words.. Even the words disposal absolutely may have their absolute character qualified by restraining words, connected with and explaining them to mean such absolute disposal as a tenant for life may make. If this would be true, provided the restraining words for her life had been added, why may not other equivalent words, which equally manifest the intent to restrain the estate of the wife to her life, be allowed the same operation?” This entire reasoning is obviously applicable to the point now under consideration, and is entitled to peculiar weight, because the power of disposition vras given by an expression much stronger than u assigns.” The same will seems to have been construed, with a different result, by the, supreme court of Tennessee, in Smith v. Bell, Mar. & Yerg. 302, to which book we have no access; but we infer from remarks upon the case, in subsequent decisions by the same court, that the phrase “absolute disposal” was regarded as conveying not merely an ordinary power of disposition, but such as would include and might destroy the limitation, arid was, therefore, irreconcilable with it.—Richardson v. Davis, 10 Yerg. 290. While the adjective absolute, in that case, may have enlarged the power of disposition, we apprehend that the decision asserts no principle adverse to our argument in reference to the construction of this will, which contains no such word. Besides, the authority of the case is weakened, if not destroyed, by the conflicting decision of the supreme court-of the United States, delivered by Chief-Justice Marshall.

In the case of Hill v. Hill, 4 Barb. 419, the devise was to “Thomas Hill, and to his heirs and assigns forever;” with a prohibition of sale within fifteen years unless to one of the testator’s children, and with a limitation over in the contingency of death without issue at the time of his death. Notwithstanding the word “ assigns,” the court, after citing many cases, in which the first taker was held to have taken the absolute property, said : “In all these cases of the giving of the first taker an absolute property, there was an attempt to give to the executory devisee such part of the property as should not be sold or disposed of by the first devisee. But the case before us is of a different character. It is true it- commences by giving the property to him and his heirs forever, but the expression is qualified by the subsequent.limitation. The condition on which the estate is given, that Thomas shall not sell or convey it within fifteen years, does not enlarge the estate. The testator did not devise the estate to Thomas, his heirs, &e., absolutely, but on two express conditions : one, that he should not die without lawful issue, and the other, that he should not alien within fifteen years after the death of the testator, except to some one of the testator’s children. The jus disponendi was, therefore, not absolute, but conditional. If Thomas sold to one of his brothers within the fifteen years, or to any other person after that time, the grantee, in either ease, would take the land subject to the same contingency, that is, the death of Thomas without lawful issue; and upon the happening of that contingency, such grantee would be divested of the estate.” We quote thus largely from this last case, because it seems to cover the precise point of discussion in this case.

In the case of Webb v. Wooll, 13 English L. & Eq. 63, a case relied upon by the appellants’ counsel, there was a bequest to the testator’s wife, her executors, administrators and assigns, to and for her and their own use and benefit, upon the fullest trust and confidence that she would dispose of the'same for the joint benefit of herself and the testator’s children. There was in this case no question as to a limitation, but the controversy was between the widow of the testator and his children, as to whether the right of the former was exclusive, or in trust for herself and the children; whether the gift to the wife was of a beneficial interest, or whether she took only as a trustee. In deciding this question, the words assigns, executors and administrators, were allowed much force in producing the conclusion, that the wife took a beneficial interest, and that the following words did not impose a trust upon her. The same effect may be allowed to the word assigns in this case as was allowed in that, without affecting our argument. It would simply show that the first taker had a beneficial iuterest in the property, — which, of course, our argument does not deny.

In Meredith v. Heneage, 1 Sim. 543, the word assigns also occurs, but is not noticed in the -opinion at all; but the argument is drawn from the fact, that the estate of the devisee is declared to he “ unlimited and unfettered,” and some other expressions of the will. No such words occur in the will now before us, nor is there any equivalent expression. “ Unlimited and unfettered,” in connection with other things, seems to have been regarded as negativing any intention to “fetter and limit” the estate by imposing trusts upon the devisee.

We think the reasoning and authorities above adduced fully maintain our position, that there is no repugnancy, which makes the limitation over void, and that the exec-utory devise is sustained by a construction which does no violence to the language which describes the estate of the first taker.

[3.] The second clause of the will gives a legacy to Means, of five thousand dollars, to be paid in five equal installments. The next clause gives all the “ balance ” of the property to MeE.ee. Upon these two clauses it is argued for appellants, that the legacy of five thousand dollars is so charged upon McRee’s devise, that the bequest to the latter must, by implication, be enlarged into an absolute estate. The doctrine is well established, “ that where a devisee, whose estate is undefined, is directed to pay the testator’s debts or legacies, or a specific sum in gross, he takes an estate in fee, on the ground that, i/ he took an estate for life only, he might be dam-nified by the determination of his interest before reimbursement of his expenditure.” — 2 Jar. on Wills, (m. p.) 171, [top) 125. A distinction is drawn, between a charge upon the estate, and a charge upon the person of the devisee: the latter enlarges thd* estate by implication ; the former do.es not. The distinction rests upon the satisfactory reason, that where the person of the devisee is charged in respect to the estate, tjiere is a personal liability which may continue after his death; but it is otherwise where the charge is,upou the estate. The distinction 'is well settled. — Collier’s case, 6 Reports, 16; Jackson v. Bull, 10 Johns. 148; Jackson v. Martin, 18 Johns. 31 Spraker v. VanAlstyne, 18 Wend. 200; Olmstead v. Harvey, 1 Barb. 112. Now it is certain, that the legacy of five thousand dollars is not charged personally upon Mc-Ree in reference to the estate bequeathed to him, but is to be paid by the executors out of the general' assets of the estate. The doctrine of enlargement by implication from a charge is, therefore, not available to the appellants.

[4.] It is contended, that the contingency of dying without issue of the body implies an indefinite failure of issue; and that, therefore, the executory devise is void for remoteness. We need not inquire what judgment the common law would pronounce upon that question, for we regard it as settled by the Code. Section 1302 of the Code is in the following language: “ Where a remainder in real or personal property is limited to take effect on the death of any person without heirs, or heirs of his body, or without issue, the word heirs, or issue, must be construed to mean heirs or issue living at tbe death of the person .named as ancestor.” Notwithstanding remainders are alone expressly mentioned, this statute must be construed to include executory devises. This statute is almost a literal copy of section 22, title 2, part 2, chap. 1, art. 1, page 724, of the New York Revised Statutes, and is evidently borrowed from it. .The New York statute has only the word “ remainderyet in New York the courts have uniformly regarded it as including executory devises. Miller v. Macomb, 26 Wend. 229; Hill v. Hill, 4 Barb. 424; Ferris v. Gibson, 4 Edw. Ch. 707. It was unimportant, after the insertion of section 1801 of the Code, that the distinction between executory devises and remainders, should be observed, for it abolishes the distinction between the two. — 4 Kent’s Com. 272. That section gives to contingent remainders the same properties and effect as executory devises. It would be a most unreasonable construction, which would say that the distinction between executory devises and contingent remainders is broken down, and that they have the same properties and effect, and yet the same words shall have altogether a different import when the question of remoteness is to he determined. Executory devises are within all the evils to be avoided and benefits to be accomplished by the statute. They are within the spirit and intent of it; and we decide, with the New York court, that remainder was used in its ordinary, rather than in its strict legal acceptation, and that it embraces executory devises. We not only have the authority of our own observation, but the highest legal authority, for saying that “ the term remainder is sometimes used in a lax sense to denote any kind of subsequent interest, or the limitation thereof.” — 2 Fearne on Rem. 54.

It is argued, that because some of the articles belonging to the estate were such as would be consumed in the specific use of them, there is an inconsistency between tbe estate of the first taker and the limitation over. Such inconsistency could only exist upon the supposition, that the articles qnce ipso usu consumuntur were intended to be specifically enjoyed. That intention is not manifested in the will, nor is it cleducible from it according to tbe principles of construction wbieb prevail in sueb cases. — Harrison v. Foster, 9 Ala. 955; Keyes on Chattels, §§ 20-23, pages 17-32; 4 Kent’s Com. (m. p.) 353, (top) 439-440.

The counsel have not argued in their briefs any question arisiug on the account ordered by the chancellor, and we therefore do not pass upon it. If it is desired that we should consider the account, our attention may be called to it by written' arguments during the term. The chancellor’s decree is affirmed.