Ingersoll's Appeal

Mr. Justice Sharswood

delivered the opinion of the court,

Several important and interesting questions have been raised on this record, which we do not consider it necessary to discuss and decide, as we are of opinion that it appears upon the will of Elizabeth Wilcocks that by the words, “ die without issue,” she meant a failure of issue at a definite period, to wit, the death of both her nieces. Nothing certainly is better settled than that the intention of a testator, if not contrary to law, shall be carried out in the disposition he may make of his property after death. There are many things which he cannot do, however clearly he may intend it. He cannot create a fee and clog the power of alienation or relieve it from liability for debts. He cannot create a perpetuity by an executory devise after an indefinite failure of issue or at any other future period, which may not be until after a life or lives in being and twenty-one years. But he may give an estate in fee, subject, on certain contingencies, to be reduced to an estate for life with a remainder over, but if those contingencies do not happen, the first gift in fee to stand. It is but an alternative limitation, and such limitations have been long recognised as valid: Fearne on Cont. Rem. 373; Luddington v. Kime, 1 Ld. Raym. 203. This is precisely, we think, what the testatrix meant in this case, and there was nothing unlawful in it. She meant to give her two nieces a fee-simple, but subject to the contingency that if they should both die without issue living at the death of the survivor, then over to her nephew, Charles Ingersoll, in fee. It is undoubtedly true that if she had merely provided that on their death, “ without issue or without leaving issue,” the devise over should take effect, the law would have construed it to he an indefinite failure of issue, and their estate would thereby have been reduced to an estate-tail. But the words “dying without issue or without leaving issue” may always be shown by other parts of the will to have meant “ issue living” at the death of the first taker. In Eichelberger v. Barnitz, 9 Watts 450, the leading case which recognised the general rule in Pennsylvania, the exceptions are acknowledged by Mr. Justice Sergeant, in the opinion of the court, and among them is enumerated: “ When the time at which the devise over is to take effect is expressly or impliedly limited to a particular period, within a life or lives in being and twenty-one years after.” See also Taylor v. Taylor, 13 P. F. Smith 481. In the will before us these words are found three times in the same paragraph within a few lines of each other. In the first two they are evidently used in the sense of a definite failure of issue: “ Should either of them die without issue, then the share of the deceased shall go, but still subject to this trust, to the survivor.” “ Should they or either of them die leaving issue, then my trustee shall hold the estate so left for the uses which may be declared by them or either of them by last will and testament or writing in nature thereof.” It is very evident that in both these cases the testatrix could not have contemplated an indefinite failure of issue at some future period, however remote. When, therefore, she concludes her limitation with the same words, “ should both of them die without issue,” the inference is irresistible that she used the words in the same sense that she had done before. This principle of construction was adopted and applied in Seibert v. Butz, 9 Watts 490, and indeed is so reasonable that it needs no citation of authority to sustain it.

Such being the state of the limitations upon the proper construction of this will, it is clear that the trust created by the testatrix was a living and active trust, important, if not absolutely necessary, to preserve the estate for the ultimate devisees. If it was personal estate, it was important to prevent unwise investments and to relieve the first takers, subject to the contingencies, from being under the necessity of giving security ; and if it was real estate, to preserve it from waste and' dilapidation. It would seriously impair the right of disposition in the owner of property, if he could not, by the appointment of trustees in whom he had confidence, make provision against such consequences. The fact that the testatrix intended also as one of the objects of the trust to create sole and separate estates for her nieces, then being unmarried and not in contempla; tion of coverture, though that object be considered inoperative and void, does not invalidate the trust, if for other reasons it ought to be supported.

Decree reversed, and now it is ordered and decreed that, the bill be dismissed with costs; the costs of this appeal to be paid by the appellees.