Jordan v. Roach , 32 Miss. 481 ( 1856 )

Smith, C. J.,

delivered the opinion of the court.

This was a bill filed in the Superior Court of Chancery, by the appellees, for the recovery of certain real estate and personal property consisting of slaves, stock, farming utensils, &c., held and claimed by the appellant.

The controversy involves the construction of the last will and testament of Benjamin Boach, Sen., deceased, under which both parties claim title.

The testator having, by previous devises and bequests in the will, disposed of certain portions of his estate, by the fourth clause devised and bequeathed to his five children, “ all the rest of, and all kinds” of his property, to have and to hold the same “ share and share alike, to them and their heirs forever, subject only to the conditions and limitations as to distribution,” &c., as were thereinafter mentioned.

By subsequent clauses the testator provided that each of his children, as they became of age, should receive a tract of land of a thousand or fifteen hundred acres, with thirty slaves, to be purchased by the executors with the funds of the estate. In reference to his daughter Mary, the provision is in these words: “when my daughter Mary shall arrive at full age or shall marry, it is my will that my execktors shall allow her to take any tract of my wild and unoccupied lands, not exceeding fifteen hundred acres, or if she does not like the location of any of my said lands, to purchase for her, at a price not exceeding twenty dollars per acre, one thousand or fifteen hundred acres of land; and with any funds they may have on hand, to purchase for her thirty negroes to work on and cultivate the same; and they shall purchase for her or furnish from my plantations above mentioned, all necessary stock, implements, utensils, &c., &c., for the same; anA@ite^(feall be charged with the value of said land, negroes, stocWu^ffiil^fil^ovith six per cent, per annum interest on the saij*$«r be jgpirged\gainst her portion of my estate on final distiúMíÉn. ffSmtMK mat in case my daughter should marry, all thspfy pertywie rSjfy tifus receive, and that on final distribution, is lifcrod he^jjpfolejfnd separate use, free from any control or liability^'ine ^Stsjl^ner husband. To make my intention plain, the propert^jjj$jenny last will and testament, devised and bequeathed to my daughter, is for her sole and separate use and behalf, and her heirs forever, but should she die without issue, or if her child or children surviving her, should die before arriving at the age of twenty-one, then the estate herein devised shall revert to my other children and their heirs, share and share alike, according to the law of this State.”

By the terms of the will, the property devised to the testator’s children, except the portions to be advanced upon their arriving at the age of twenty-one, was to be kept together until the youngest child should attain the age of majority, at which time, according to the directions of the will, a final distribution was to be made of the estate.

The daughter, Mary, before she arrived at the age of twenty-one, intermarried with German N. Jordan, the appellant, and on her marriage, a plantation, slaves^ and stock, in execution of the clause of the will above recited, wás-’purchased for her, of which Jordan and Mrs. Jordan took possession. Mrs. Jordan died in May, 1855, having previously given birth to twins, who survived their mother but a few weeks. The plantation, slaves, &c., are now held by Jordan, and constitute the subject of the suit.

The appellees are the surviving children of the testator, and the brothers of Mrs. Jordan, and claim the property directly in contest, as well as her undivided portion of the testator’s estate. They do not allege title in the character of heirs-at-law, or dis-tributees of Mrs. Jordan or her children, but they claim in virtue of the limitation over “to the other children” of the testator, which it is averred took effect upon the dying of the children of Mrs. Jordan before they attained the age of twenty-one years. Jordan demurred to tbe bill, and claims as the heir-at-law of his children.

The case, thus stated, raises the question of the validity of the limitation to the “other children” of the testator; and to determine this, we must first ascertain the character and kind of estate which vested in Mrs. Jordan.

It is insisted by appellant’s counsel, that if Mrs. Jordan took an estate tail, the limitation to the “ other children” of the testator was defeated and destroyed, by the statute abolishing entails, which enlarged her estate into a fee simple absolute.

Executory or contingent limitations, made upon an estate tail, do not change the character of such estate. As, for example, where in lands of inheritance an estate tail is limited to one, and then a limitation is made to another, on the contingency that the tenant in tail shall die without issue living at the time of his death, such limitation does not abridge the first estate, or accellerate its determination; and therefore cannot affect or convert it into an estate of a different kind. Driver v. Edgar, Cowp. Rep. 379; Fearne on Rem. 428; Jarman on Wills, 329, 333, 358, 359.

If, therefore, Mrs. Jordan took an estate tail, and the statute, by enlarging it into an estate in fee simple absolute, worked the destruction of the ulterior limitation, that result would follow, whether she took an estate tail proper, or a qualified estate tail- or an estate tail determinable on a subsequent collateral event. As all these species of estates tail were subject to be barred by a common recovery, which destroyed all conditions and subsequent limitations; Eearne, 424; 4 Kent. 279; and our statute, in its operation, is quite as comprehensive as the common recovery.

We shall proceed now to inquire, whether Mrs. Jordan took an estate tail; or whether a fee, determinable upon her death without issue of her body then living, or, on the death of such issue, if they should survive her, within the age of twenty-one years, was created by the will. These propositions are maintained by the respective counsel of the parties.

As estates tail, at most, exist to a very limited extent in this State, since the enactment of the statute in 1821, concerning wills, in prosecuting this inquiry we must, of necessity, refer to the English law.

What was a conditional fee at the common law, has, since the Statute of Westminster 2, 13 Edw. 1, been denominated an estate tail. This statute, commonly called the statute cle donis condi-tionalibus, took away the power of alienation on the birth of issue, which existed in reference to conditional fees. These, at common law, were construed to be fees simple, on condition that the grantee had the heirs prescribed. If the grantee died without issue, the land reverted to the grantor; but if he had the prescribed issue, the condition was held to be performed, and the estate became absolute, so far as to enable the grantee, by alienation, to bar not only his own issue, but the possibility of a reverter. Under this statute the courts of justice considered that the estate was divided into a particular estate in the donee, and a reversion in the donor. Where the donee had a fee simple before, under this construction of the statute, he had what was called an estate tail; and where the donor had before but a bare possibility, he had a reversion expectant upon the estate tail.

“ An estate tail,” says Cruise, “ may be described to be an estate of inheritance, deriving its existence from the statute de donis con-ditionalibus, which is descendible to some particular heirs only of the person to whom it is granted, and not to his heirs general.” 1 Cruise, 78. An estate tail is created where lands are conveyed to a person and the heirs of his body, or to some particular heirs, to the exclusion of the heirs general. But the specified heirs, must be lineal heirs, as an estate tail can only be created by a gift to the donee and the heirs of his body begotten. 1 Thomas’ Coke, Litt. title Eee Tail, §§ 14, 15; 2 Preston on Estates, 355. And it goes down to the heirs of the body of the donee in perpetual succession. Its character is never changed by the descent through any number of generations. Its peculiar characteristics are, the measure of the estate by the continuance of issue, and its quality to determine only on the failure of issue. 2 Preston on Est. 392. When the line of descent is broken, by the failure of the issue of the donee, it reverts to the grantor by operation of law.

In both clauses of the will, which have any material bearing upon the subject under consideration, appropriate language is used for passing an estate in fee simple absolute. In the first, the testator devised all the rest of his property, of what kind soever, to his five children, of whom Mrs. Jordan was one, “to them and their heirs forever,” subject to the conditions thereinafter mentioned. In the second, the testator declares that the property devised to his daughter is “ for her sole and separate use and be-hoof, and her heirs forever.” This language, if unexplained or controlled by any other provision in the will, would unquestionably pass a fee simple. But that such was not the intention of the testator is shown in the clearest and most unequivocal language. He says, “ To make my intention plain, the property in this my last will and testament, devised and bequeathed to my daughter, is for her own separate use and behoof, and her heirs forever; but should she die without issue, or if her child or children surviving her, should die before arriving at the age of twenty-one, then the estate herein devised shall revert to my other children and their heirs,” &c.

Here there is no possible ground to doubt that the testator used the word “heirs” in the restricted sense of “heirs of the body.”

Where a testator, in the first instance, devises lands to a person and his heirs, and then proceeds to devise over the property in terms which show that he used the word “ heirs” in the prior devise in the restricted sense of heirs of the body; such devise confers only an estate tail, the effect being the same as if the latter expression had been originally employed. “Indeed, so well,” says Mr. Jarman, “ has this been settled from an early period, that to found an argument in favor of a contrary construction, resort is always had to special circumstances.” 2 Jarman on Wills, 23T, and cases cited.

It is not, therefore, to be controverted, that Mrs. Jordan did not take an estate in fee simple ; but that she took an estate tail, unless the subsequent limitation has had the effect to convert it into a qualified fee determinable on the contingencies specified.

The statute has declared “that every contingent limitation in any deed or will, made to depend upon the dying of any person without heirs, or heirs of the body, or without issue, or issue of the body, or without children, or offspring, or descendant, or other relative, shall be held and interpreted a limitation to take effect when sucb person shall die, not having such heir or issue, child or offspring, or descendant or other relative (as the case may be) living at the time of his death, or born to him within ten months thereafter, unless the intention of such limitation be otherwise expressly and (as) plainly declared on the face of the deed or will creating it.” Hutch. Dig. 610, § 26.

The effect of this statute, as settled by this court, is to make the limitation over to “the other children,” a limitation dependent upon a definite failure of issue, unless the contrary intention be expressly and plainly declared on the face of the will. Powell v. Brandon, 24 Miss. R. 843; Hampton v. Rather, 30 Miss. R. 193.

In the argument, at bar, it was conceded or assumed by the respective counsel, that the devise before us is one to which the legislative construction attaches. And, for the present, admitting this to be the case, we must apply the same construction which should be given if the will contained the additional words “ living at the time of her death.”

What then is the effect of these superadded words upon the estate which Mrs. Jordan took under the will? Will the effect be to convert the fee tail limited to her, into a qualified or determinable fee, as contended by counsel, and thus render the limitation over good as an executory devise ?

In the case of Briver v. JEdgar, the testator having devised lands to one of his daughters, to hold the same, after the death of the testator’s wife, to his said daughter and the heirs of her body, lawfully begotten; and to another daughter, other lands to hold from and after his wife’s decease, to her and the heirs of her body; and declared his further will to be, that in case either of his said daughters should happen to die single, married or widow, without leaving child or children living at their decease, lawfully begotten, then the estate, given by his will, should be void as to the inheritance of heirs, and the lands so given her should go to his heirs male, &c. The first daughter, after her mother’s decease, suffered a common recovery of the lands so devised to her; and afterwards devised them in fee, and died unmarried and without issue. Upon a question whether the recovery had barred the remainder over, it was holden, by the Court of King’s Bench, that she was tenant in tail up to the hour of her death; and, therefore, that the common recovery which had been suffered, barred all limitations upon the estate tail. Cowp. 379.

Mr. Fearne, commenting upon this and the analogous case of Fontain v. Gooch, said, “ however the expressions in cases of this sort may wear the complexion of conditions or conditional limitations, they seem, in fact, not to differ from remainders; as they are taken up from an event which is itself a regular determination of the estate tail, that is, the death of the tenant in tail, without leaving issue then living, so that the express declaration, that the estate tail should cease, determine, or become void in such event, being nothing more than what is involved in the very nature of the estate itself, is, in strictness, perhaps a mere nullity. And the ulterior limitation not operating in any degree to abridge or interfere with the estate tail, or accelerate its determination, may well be considered as a remainder, not vested indeed, because confined only to the event of the estate tail, determining by the decease of the tenant in tail leaving no issue then living, but contingent upon the expiration of the estate tail by that event. Fearne, 428. See also the note at page 6, of the same author, by Mr. Butler.

The authority of these eminent elementary writers, and numerous adjudicated cases, show, conclusively, that where an estate tail has been expressly limited in the first instance ; as, for example, where lands are devised to one and the heirs of his body, the words •“ living at the death,” &c., which introduce the limitation over, cannot be resorted to as a test by which to determine whether the testator did not intend to limit an estate tail. And further, that these words have no effect whatever upon the prior limitation, and consequently do not change the estate tail into an estate of a different kind. This doctrine is consistent with the nature of such limitations, and with the principles of reason. It seems to result necessarily from the very nature of the subject. For where lands are devised to one and the heirs of his body, the heirs, in such case, cannot take as purchasers by present devise, for the manifest reason, they are not in existence. They cannot take by way of remainder, for that would cut the estate of inheritance expressly limited to the first devisee, down to an estate for life. It is obvious that they could take, alone, by descent. Otherwise, the expressed objects of the testator’s bounty would be shut out, and his declared will be defeated.

It is equally manifest, that the expression “living at the death,” &c., preceding the limitation over, cannot characterize or affect the prior limitation. In such case, the ulterior limitation is made to depend upon a contingency which is, in itself, a natural determination of the estate tail; that is, the death of the first devisee without issue of his body then living. And as the condition on which the ulterior limitation is to have effect is taken up from, that event, that is, from an, event which is the regular determination of. the. estate tail, it is impossible, from the very nature of things, that the ulterior limitation could in anywise abridge, interfere with, or accelerate the determination of the prior estate. Fearne, 420, 428; 6 Cruise, Dig. title Devise, 258; Gilman v Elvey, 4 East, 313; Driver v. Edgar, Cowp. 379; Richards v. Burgaveny, 2 Jarman on Wills, 329, 330, 358, 359; Clifton v. University of Oxford, 1 Eden, Rep. 473.

In the case last cited, certain premises were devised to Doctor Clifton and the issue of his body, lawfully begotten, living at his death, and for want of such issue, to the University of Oxford. “ This,” said the Lord Keeper, “ is the plainest case I ever saw in my life. The issue cannot take by present devise, as joint tenants with the defendant. They are not to take by remainder, but by descent; all the posterity are intended to take; ii cannot therefore be a contingent remainder, but an estate tail.”

But there is a settled distinction between the case which we have been considering and those cases in which the first limitation is to the devisee and his heirs generally, which would .carry the fee simple; and the words “dying without issue,” &c., subsequently used, are held to cut down the fee simple to a fee tail.

In the celebrated case of Pells v. Brown, Croke’s Jas. 590, the testator devised lands to his son Thomas, and his heirs in perpe-timm, paying to his brother Richard £20 at his age of twenty-one years; and if Thomas died without'issue living William his brother, that then William should have those lands, to him and his heirs and assigns forever, paying, as Thomas should have paid, the said sum of ¿620. Thomas having entered, suffered a recovery, and it was holden that he took a fee. The circumstances that the lands were devised to him and his heirs in perpetuum, and that he was required to pay <£20 upon his arriving at the age of majority, were considered to indicate an intention to limit the fee to him. The clause, “if Thomas died without issue,” was not indefinite, whenever he should die without issue, but was rendered definite by the clause which restricted the dying without issue to the lifetime of William. And as a fee could not, by way of remainder, be limited after another, it was agreed that the limitation to William was good as an executory devise.

It would be foreign to the question immediately before us, to inquire, whether, in the decision of that case, the recognized and well-settled characteristics of a remainder were not disregarded, and conditional limitations confounded with contingent remainders. •Our present purpose is to ascertain what effect, according to the settled doctrines of the jurisprudence of England, at the date of the adoption of our statute concerning conveyances, the words “without issue living at the death,” &c., have upon the-prior limitations which carried the fee.

The courts at Westminster have, for centuries, constantly recognized the doctrine laid down in Pells v. Brown as law. And it is not now to be controverted, that words, which import a definite failure of issue following a devise of the fee, will not confer an estate tail.

Hence, applying the legislative construction to the devise before us, it follows, necessarily, that the testator did not intend an indefinite, but a definite, failure of the issue. Upon this view, therefore, Mrs. Jordan took an estate in fee, subject to be determined by the event of her death without issue then living, and not an estate tail.

But serious objections present themselves when we attempt to apply the statutory rule of construction. If we hold that the statute applies, the limitation to the testator’s “other children” is made to depend upon the dying without issue living at the time of the death of the prior devisee. But, as Mrs. Jordan might die leaving issue, if such issue should die before attaining the age of twenty-one years, the declared will of the testator would be defeated, as it was his expressed intention, in the latter event, that the limitation over should take effect.

If we should, as argued by counsel, regard the words “if she should die without issue,” and “if her child or children surviving her, should die before arriving at the age of twenty-one,” as providing two distinct and independent contingencies, upon the happening of either of which the subsequent limitation was to vest, no objection would be encountered, in holding that the statute applies to the first, and not to the second contingency.

According to this view, the expression in the will, “if she should die without issue,” should be read with the additional words, “living at the time of her death.” And looking at the two events on which the limitation over might take effect, as two distinct and independent contingencies, it is manifest that this might be done consistently with the testator’s intention. But it would produce a palpable absurdity, if we should insert those latter words in the condition upon which the limitation is made to depend upon the dying of her issue within the age of twenty-one years. If, therefore, we regard the two events expressed in the will as distinct, and the latter as an independent contingency, and look at it alone, it is “plain and express upon the face of the will,” that the testator did not intend a failure of issue “ at the death” of the first devisee.

But where lands are devised to one and his heirs generally, with a limitation over if he should die without issue; “ or, if such issue should die before attaining the age of twenty-one years,” the latter event, that is, the dying of the issue within age, is held to be but “ a limited portion of the contingency expressed by” the preceding words, “if he should die without issue.” And, agreeably to what appears to be the approved doctrine of the courts in England, the words describing the latter contingency have no effect whatever, in varying the fixed legal construction attached to the preceding words, “ die without issue.” The reasons assigned for the rule are, that words providing for a limitation upon the contingency of the issue of the first taker dying before attaining the age of twenty-one years, do not indicate a definite failure of issue and being but a limited portion of the general contingency which is expressed by the words “die without issue,” is necessarily included in it, and therefore superfluous. Wright v. Jesson, 2 Jarman, 291; Grimshaw v. Pickup, 9 Sim. 590; 2 Jarman, 429.

Tbe statute bas fixed tbe construction of tbe words “ die without issue,” when unexplained by tbe context. Tbeir import is directly tbe opposite of that applied by tbe courts at Westminster. They mean “ a failure of issue at tbe death.”

Now, if we apply tbe reasons assigned for the rule aboye stated, to tbe question before us, tbe result would be, that we must exclude or disregard the second. contingency, for, being a limited portion of tbe general contingency expressed in tbe first instance, it is included in it, and therefore superfluous, and consequently ineffectual to vary tbe fixed legislative construction which must prevail if tbe statute applies. And following this result, we would be compelled to bold that tbe event, upon tbe happening of which, tbe limitation over was to take effect, was tbe dying of tbe prior devisee without issue living at the time of her death. This result would be decisive of tbe controversy and fatal to tbe appellees, as tbe prior devisee died leaving issue surviving.

But this construction is not to be tolerated, as it was tbe expressed will of tbe testator, that, although bis daughter might die leaving issue, tbe estate devised should nevertheless go over to bis other children, if such issue should die under tbe age of twenty-one years.

There is no provision of tbe will from which it appears plainly and expressly, that tbe testator designed to make tbe limitation over dependant upon the failure of issue at any specified period of time. In fact, under tbe rule recognized by tbe courts in England, tbe will presents a case in which tbe devise over, in tbe first instance, is dependant upon an indefinite failure of issue. Hence, whatever doubt may exist, when we consider what was tbe obvious, paramount, general intention of tbe testator — that is, that bis daughter and her lineal descendants should enjoy tbe devised estate, so long as such descendants continued to exist; and that the limitation over was not to take effect upon any contingency short of an extinction of tbe issue, we are compelled, by tbe explicit and imperative language of the statute to adopt tbe rule of construction which it supplies. Then, applying this rule, tbe will must be read as providing for tbe limitation over, in the first place, upon a failure of the issue, restricted to tbe time of the death of tbe first taker. And thus construing tbe will, there is no reason for bold-ing that the contingency of tbe dying of the issue under twenty-one, is only a limited portion of the general contingency expressed by the previous words. In so doing we steer clear of the obstacle presented by the rule laid down by the authorities above cited.

Conceding, then, that the legislative construction applies, we must regard the two events described in the will, as distinct and independent contingencies, upon the happening of either of which the limitation over was to take effect. Considered with reference to the doctrines of the English law, the will presents the case of an executory devise, limited first, upon a dying without issue “living at the death,” and secondly, upon a dying of the issue under the age of twenty-one years.

The first contingency having failed, we will confine our attention to the second. And we propose, for the present, to consider the questions arising upon it without regard to the supposed effect which our statute has had upon the validity of the limitation, but with exclusive reference to the principles of the English jurisprudence.

The exemption of executory devises from being barred or destroyed, is the foundation of an invariable rule in respect to the contingency upon which estates created by that means are permitted to take effect. The rule is, that the contingency must happen within a limited space of time. The utmost limits, as settled in the celebrated case of Stephens v. Stephens, allowed for executory devises, are a life or lives in being, and twenty-one years and the fraction of a year, sufficient to cover the ordinary period of gestation. Eearne on Rem. 521. As estates of this character are not subject to be barred or destroyed, every execu-tory devise, so far as it goes, creates a perpetuity; that is, an estate inalienable until the contingency has happened one way or the other. The courts, for manifest reasons of policy, prescribed these limits; for “otherwise,” says Mr. Eearne, “it would be in a testator’s power to limit an estate inalienable for generations to come; and thus render property, to a great measure, useless to the calls and purposes of a commercial community.”

The immediate question then, arising in the case is, whether the devise to the testator’s daughter and her heirs generally, but if she should die without issue living at her death, “ or if her child or children surviving her, should die before arriving at the age of twenty-one years, then over” to the testator’s other children, does not violate this rule ?

The intention of the testator to be deduced, by applying the principles of law, from, the terms of the devise, must determine this question.

Then, was it the testator’s intention, or what is the same thing, according to the legal construction of the will, was the contingency upon which the limitation over was to take effect, an event which must happen, by the very terms creating the limitation, within the period allowed for executory devises ; that is, within twenty-one years after the death of the prior devisee ?

The words “ child or children,” as they are employed in the will, are synonymous with “issue.” This was, in effect, conceded in the argument at bar. The term “issue” is of very extensive import, and when used as a word of purchase, and when unexplained or uncontrolled by any clear indication of intention, will comprise all persons who can claim as descendants, whether as children, grand-children, &c., from or through the person to whose issue the limitation is made; and to restrict the legal meaning of the term, a clear intention must appear upon the will. Hanburry v. Davenport, 3 Vesey, 257; Bernard v. Montague, 1 Mer. 424; Leigh v. Norbury, 13 Vesey, 340; Freeman v. Paisley, 3 Ib. 421.

Unless, therefore, there is some clear indication in the will before us, that the testator intended to restrain the legal import of the term, and to confine it to some limited portion of the issue of his daughter, as the immediate issue, to the exclusion of her grandchildren, or great-grand-children, he must be understood to include as the objects of his bounty, any or all of her remotest descendants who might live to attain the age of twenty-one years.

It is contended, that this intention is plainly shown upon the face of the will. It is insisted that it was his manifest intention to exclude the grand-children or the issue of the issue of his daughter, unless such issue was in existence at the date of her death.

The expression, in the will, mainly relied on to maintain this construction, are the words “surviving her,” introduced in immediate connection with the preceding words “child or children.” And it is argued that this expression restricts the general import of tbe term “issue,” and makes it mean the specific individuals comprising the issue who might happen to be in existence at the date of the demise of the first taker. Thus excluding the issue of the issue, or the grand-children of Mrs. Jordan who might be born subsequent to her death.

But it seems very clear that this was not the office or purpose designed to be performed by this expression. Mrs. Jordan could not have died leaving issue, without leaving a child or children, the survivor or survivors. The word “survive,” in its popular signification, may mean “over-living a specified individual,” or “living beyond a specific event,” or it may mean “still living,” or “living at some designated period of time.” In the particular connection in which these words occur — they mean simply, what would otherwise have been implied from the limitation itself, “if she died leaving issue.”

If we consider the general provisions of the will, and the paramount general intention of the testator disclosed by them, this will be more apparent.

The devised property was very large. The sons of the testator, his “other children,” were at least equally and amply provided for with the daughter. And nothing can be clearer than that his paramount general intention, in respect to the devise and bequest to her, was that she should, at the least, possess the property during the term of her life, and that upon her death it should go to the heirs of her body, if she should leave such heirs, and that so long as they continued, the property should be enjoyed by them. The intention is equally clear and manifest that the limitation over was not to take effect upon any contingency short of an entire failure of the lineal descendents of Mrs. Jordan. Hence, this paramount object of the testator might be defeated, if the construction contended for were adopted. The estate might pass to the ulterior limitees, notwithstanding issue of the first devisee having attained the age of twenty-one years, were still surviving. For if the surviving issue were to die under twenty-one, leaving issue, such issue, that is the grand-children of Mrs. Jordan, would be shut out, although still living to claim the testator’s bounty. Further, according to this construction, a grand-child born before the death of Mrs. Jordan, being, according to the argument “surviving issue,” would be comprised in the objects intended to be provided for; but another, bom the day after her death, would be excluded. This forcibly illustrates the impropriety and absurdity of the construction ; as it is scarcely possible to suppose that the testator designed to draw such a distinction between the daughter’s lineal descendents, standing in precisely the same relation to himself.

■ The remoteness of the contingency is not so great as to warrant the conclusion that the testator deliberately excluded it from his consideration. The happening of the contingency was certainly an event within the ordinary range of human possibilities. Mrs. Jordan, herself, died under sixteen, leaving issue of her body. And at this latitude, where females arrive at puberty at so early a period in life, the contingency of such issue dying under twenty-one, and leaving issue, is scarcely to be regarded as an improbability.

It is very evident, that the principle upon which it is held, that where lands are devised to one and his heirs generally, with a limitation over, if he shall die under the age of twenty-one, and without issue, a definite failure of the issue is intended, and hence, is construed as “a devise in fee simple, subject to an executory limitation over, in the event of the prior devisee’s death under the given age, and leaving no issue surviving him,” (2 Jarman on Wills, 428,) is not applicable to the devise before us.

There is a manifest distinction between the ease at bar and that class of cases to which this rule is applied. In all the cases in which the event of dying of the first taker is confined to a definite age, the person upon whose death without issue the limitation over is made dependant, is referred to as a specific person or individual who can only take in the character and capacity of a purchaser, and not as a class or denomination of individuals who would take by inheritance. See the cases referred to in J arman on Wills, 2d vol. 429; and Fearne, illustrating the rule.

Where a limitation over is made to depend upon the dying of J. S., for example, under twenty-one, the contingency must, of necessity, happen within the compass of twenty-one years. So, where it depends upon the dying of J. S. under twenty-one, and without issue. For the failure of the issue and the death of J. S. must both, by the very terms of the limitation, happen within that period of time. In both these instances, the limitation over would, unquestionably, be good as an executory devise.

But in the will before us, the issue of Mrs. Jordan would not take by immediate devise, as purchasers, but by descent, as her heirs; and are not referred to as specified individuals, but as a class or denomination of persons to take in succession, any individual of whom, attaining the age of twenty-one, would be entitled.

Jarman lays it down in express terms, that where lands are devised “to one and his heirs, with a devise over, in case he should die without issue, or such issue should die under the age of twenty-one years, he would be tenant in tail,” which clearly would not be the case if the words referring to the dying of the issue under twenty-one imported a definite failure, or an extinction of the issue within twenty-one years from the death of the first taker. 2 Jar-man on Wills, 429.

This principle was recognized in the leading case of Jesson v. Wright, 2 Jarman, 291, and afterwards in the case of Grimshaw v. Pickup, 9 Sim. 596. In these cases it was held, that the contingency of the issue dying under twenty-one did not necessarily imply a failure of issue at a specified timó, and therefore could not control the legal import of the words, “ die without issue,” previously used.

Assuming then, that according to the true legal construction of the will, the issue of the issue, or the grand-children of Mrs. Jordan, were included within the objects of the testator’s generosity, the limitation over could not vest, so long as a grand-child or great-grand-child of the first devisee survived. Hence, if she should die leaving issue, and such issue should die under the age of twenty-one years, leaving issue, although the latter might die under that age, the contingency upon which alone the limitation could take effect would not happen within twenty-one years from the death of the first taker. The contingency would, therefore, be too remote, and consequently the limitation over, void as an executory devise.

According to this view, the property devised, real and personal, vested absolutely in Mrs. Jordan; consequently, the appellant, as the heir-at-law and distributee to his children, to whom the property descended upon the death of their mother, is entitled to the succession.

This disposes of the controversy, unless, as it is supposed, the statute sustains the devise over to the other children of the testator. We propose to make a very brief examination of this subject.

The provisions of the Act of the 13th of June, 1822, concerning conveyances, bear upon the questions presented -by the will and discussed in the argument at bar.

The 27th section of that statute provides that, “where an estate hath been, or shall be, by any conveyance, limited in remainder to the son or daughter of any person, to be begotten, such son or daughter born after the decease of his or her father, shall take the estate in the same manner as if he or she had been born in the lifetime of the father, although no estate shall have been conveyed to support the contingent remainder after his death; and hereafter, an estate of freehold or of inheritance may be made to commence in futuro, by deed, in like manner as by will.” Hutch. Dig. 610.

When this statute was passed, neither the statute of Westminster, 2d, 13 Edward I., called the statute 11 de donis conditionalibus,” nor the Statute of Wills, 32 Hen. YIIL, was in force within this commonwealth. As early as the year 1807, all the statutes of England and Great Britain not re-enacted, were, by express enactment of the legislature, excluded from operation within the territory. Hutch. Dig. 65.

The whole doctrine, therefore, in regard to estates tail and exe-cutory devises, which was engrafted upon the statutes above named, never had existence in this State by any express or positive legislative enactment.

It must, however, be admitted, that the legislature, in passing the Act above quoted, proceeded upon the supposition, that it was competent and legal for testators to limit estates, by way of exe-cutory devises, which would not be valid according to the rules of the common law; and that our courts, in some instances, have gone upon the same supposition. There was, unquestionably, an implied legislative recognition under some modification, or to some extent, at the least, of the existence and legality of executory devises; for otherwise, the last clause of the 27th section of the statute would be unmeaning and useless. But, giving to the last clause of the section — which is the only provision contained in it material to be noticed — tbe meaning which its words import, and the operation which the legislature must have intended, it will not be contended that it was designed to relax the rule against perpe-tuities, and to sanction limitations by way of executory devise, which, under that rule, would be void. The plain and expressed object was, simply to empower persons, by deed of conveyance, to limit certain estates which, theretofore, as the legislature supposed the law to stand, could only be done by the party in his last will and testament. And it is manifest that one of the main effects of the provision is, to destroy the characteristic differences then recognized by the law between remainders and conditional limitations, or executory devises.

The 26th section, as construed by this court, was not intended to authorize new limitations, upon contingencies not warranted by the common law. Its object was to apply a definite and fixed construction to certain words of frequent use in deeds and wills, in cases in which the grantor or testator had not, upon the face of the instrument, plainly and expressly declared the meaning to be otherwise. And having performed that office, it can have no effect whatever upon either the previous or succeeding limitations, or upon the capacity of the owner to dispose of his estate.

The 24th section was designed to have a much broader operation. By declaring that “every estate in lands or slaves, which now is or shall hereafter be created an estate in fee tail, shall be an estate in fee simple, absolute,” the legislature must have intended to abolish estates tail, supposing them to exist undér our law as it then stood, or it must have intended to limit the power which a man may have over his own estate, and to confine its exercise within the period of his own life. For, in these cases, the grantee, donee, or devisee, being vested with the unrestricted power of alienation, the dominion of the grantor or devisor over the estate would, of necessity, terminate with his own life.

There is nothing more certain than that the statute de donis eonditionalibus never had existence or operation within this State; consequently,' the whole system of rules in regard to estates tail, which was constructed upon it by the English courts, never was a part of our jurisprudence.

Therefore, notwithstanding the express declaration of the statute, that “ every estate in lands, &c., which now is or shall hereafter be created an estate in fee tail, shall be an estate in fee simple,” the position, that the legislature did not intend to strike at estates tail, which never existed here, but designed to operate upon estates known at the common law as fees conditional, taken by counsel, is at the least, plausible.

Without admitting the correctness of this position, let it be conceded, for the purpose of argument, that, in the enactment of the 24th section it was neither the purpose of the legislature to abolish estates tail, nor to impose a rule which would effectually cut off perpetuities of all kinds, but to abolish conditional fees, or to enlarge them into fees simple absolute. The result would be that, since the adoption of the statute, conditional fees cannot be created, and that neither before nor since its enactment could an estate tail be limited.

Under this view the question arises as to the effect of the proviso, by which it is declared, “ that any person may make a conveyance or devise of lands to a succession of donees then living, and the heir or heirs of the body of the remainderman, and in default thereof to the right heirs of the donor.”

Where lands were conveyed to one and the heirs of his body, it was a conditional fee at common law. If he had the specified heirs the condition was held to be performed, and the estate became absolute, at least so far as the power of alienation was concerned. If he died without issue, or the issue failed at any subsequent period, without having aliened the estate, it reverted to the donor. And this was a condition implied in the nature of the estate, whether there was or was not an express provision made for a reverter, in the event of a failure of the heirs of the body of the donee.

Upon the hypothesis that the 24th section has reference to conditional fees, the effect in the case supposed would be to convert the fee conditional into a fee simple absolute, thereby making the estate descendible to the heirs general of the donee, and destroying the reversion which otherwise would have remained in the donor.

Now, it is manifest that the proviso must perform one of two offices. First. It must in all cases authorize a conditional fee to be limited to “the remainderman and the heirs of his body,” freed from the operation of the statute. But this construction would effectually destroy the efficacy of the statute: it would render the proviso repugnant, and therefore void. Or, Second. It authorizes a limitation of such an estate to “ the remainderman and the heirs of his body,” and by inserting a clause providing for a reverter, in the event of a failure of his issue, secures the reversion to the donor. But this construction is manifestly absurd, if the main object of the statute be to make the conditional fee a fee simple absolute, thereby securing to the donee the unrestricted power of alienation. For in all cases the donor, by inserting the clause for a reverter, could suspend the power of alienation during the lifetime of the donee; and in the event of the donee or remainder-man dying without issue, secure the reversion to his own right heirs.

It seems, hence, very clear, that this cannot be the true construction of the statute.

We must, we think, look at the statute as one, the express object of which was to abolish estates tail, which the legislature supposed were sanctioned by the law, and to construe it accordingly.

And thus regarding it, the object and effect of the proviso, beyond question, are not to allow an estate tail to be limited directly to one, or where there are a succession of donees to the remainder-man. For if this could be done, in accordance with the legitimate construction, one of two results would follow. First. In all cases where an estate, under the proviso, is conveyed or devised to a man and the heirs of his body, either directly or to the remainderman, when preceded by a particular estate, the lineal heirs of the tenant in tail, to the remotest posterity, would take in succession, unaffected by the general provisions of the statute. Or, Second. The estate tail would be converted by the statute into a fee simple absolute. In the one case the manifest policy and declared object of the statute would be entirely defeated; in the other, the proviso would be utterly nugatory.

The manifest object of the legislature was, by converting fees tail into fees simple, to withdraw the restraints upon the alienation of property imposed by the system of entailments, and to render the property of the community subservient to the purposes of the community; to restrain tbe power which most persons are prone to exercise, of directing the descent and providing for the enjoyment of their estates after they have ceased to exist; and to prevent inequality in the condition of families, which would most likely be produced by that means.

If we stop at the proviso, we shall find that the power to control the disposition of his property, and to restrict the right of alienation in regard to it, is bounded by the time when the owner shall cease to live, or at which he has parted with his estate. But the legislature thought, and thought wisely, that the right of alienation might, consistently with sound policy, be suspended for a limited period of time after a person, either by conveyance or devise, has divested himself of the ownership of his estate. It has accordingly fixed that limit to a life or lives in being, giving to the donor or devisor the right to limit the ultimate fee to the heirs of the body of the remainderman; and in default of such heirs, to his own right heirs. Within this limit, the partial interests or particular estates given to the successive donees, may, without doubt, be created by deed, or limited by executory devise. Whatever interest the donor or devisor may choose to give to the re-mainderman, where the estate is conveyed to a succession of donees, with a limitation over to the heirs of his body, it is certain that it cannot be an estate of inheritance, as the heirs of the body of the remainderman must take, if they take at all, as purchasers, and not as heirs.

And finally, it may, with certainty, be affirmed, that there is nothing in the proviso, or upon the face of the statute, or within its equity, nor any consideration arising from the policy indicated by the law from which the authority can be inferred to limit an estate upon a contingency which is not to happen within the compass of time prescribed by the proviso to the 24th section of the Statute.

The modes of transmission and acquisition of estates are regulated by the positive provisions of the law. In all cases of grant or devise, the question of the power or capacity of the grantor or devisor is essentially involved. When we assert the want of power, we decide upon the invalidity of the grant or devise. Now, if we test the validity of the limitation in question by the provisions of tbe statute, it is seen clearly, that it is not only unauthorized, but repugnant to the obvious policy of the law.

We have been referred to the decisions of the courts in several of the States of this confederacy, and particularly to those of the courts of Virginia, from whose code of statute law, in force at the adoption of our code, in 1822, our statutes have been mainly drawn.

But these decisions, for manifest reasons, constitute neither argument nor authority to guide us in the construction of our own statute. First. Because the statute de donis conditionalibus, was, at a very early date, re-enacted by the colonial legislature of Virginia; and the doctrines of the English courts in regard to estates tail and executory devises, fully recognised. Second. Because, when estates tail were abolished, the legislature of the State expressly recognized the validity of executory devises. Third. And more especially, because our statute contains the proviso which we have been considering, which renders the legislation of this State, on the subject, materially and essentially different from that of Virginia.

This court, in the cases of Renich v. Carroll, 7 S. & M. 798; Kirby v. Calhoun, 8 Ib., and Lambden v. Rucker, 12 Ib., has recognized the validity in regard to both real estate and personal property, of limitations by way of executory devise. But the decisions in these cases, in connection with the question before us, require no comment; as in neither was it holden that broader limits were allowed for executory devises than the boundaries prescribed by the proviso to the 24th section.

Let the decree of the Superior Court of Chancery be reversed, and the bill dismissed.

A petition for a re-argument was filed, but overruled.

Note. — The reporter is indebted to W. P. Harris, Esq., for the very lucid syllabus in this case.