Bosworth, J.
The question submitted to the judgment of the court in this case is, whether under the will of Waite Smith, Martha Howell took an estate-tail in the premises in controversy.
The eighth clause in said will gives and devises all the remainder of the real estate of the testatrix unto all her grandchildren, in equal shares, and to their heirs and assigns forever. This devise is qualified by a provision, that if either of the grandchildren should die leaving no surviving issue, then all the estate of the testatrix in her will given to such grandchild, is given to the survivor or survivors of such as shall die as aforesaid, and to their heirs and assigns forever. It is further provided, that if all the grandchildren should die leaving no surviving issue, then the estate is given over to certain other persons therein named.
By the first clause of this article in the will, an estate in fee-simple is given to the testatrix’s grand-daughters. The subsequent provision, in ease of their dying without issue surviving, would, if construed to refer to a general failure of issue, cut the estate down to a fee-tail estate, according to the rule of law. This rule of law was established by decisions of the courts of England immediately after the passage of the statute of entailments, Westminster 2, 13 Edw. I. c. 1, and has continued a
re,cognized rule in the courts of England and this country,from a period so far back as the year 1285 down to the present time. This rule seems to have resulted from the interpretation of the statute
de donis,
which was very early adopted into our laws, and, subject to its modification by our statutes, may be considered as ,in force here now. In some of the states of this country, fee-tail estates have been abolished; and this fact may, perhaps, to a considerable extent, afecount for the contrariety of decisions in reference to the technical words, which, by so many decisions of the English courts, have so uniformly been established as words creating a fee-tail. The rule, that a devise over upon an indefinite failure of issue, — as after the devise' to a man and his issue, or after a devise in fee, — is void for remoteness, or as tending to a perpetuity, is not controverted. The question is as to what words import an indefinite failure of issue, as distinguished from a definite failure, or a failure within a precise time fixed. If the devise over is upon a failure of issue at a particular time fixed, as at the time of the death of the first taker, the gift over is good by way of executory devise; for it is not liable' to the objection of remoteness, and does not tend to a perpetuity.
Now, it appears from a very numerous catalogue of cases, both in the English courts and in the courts of this country, that the words, die without issue, or without having issue, or without leaving issue, import a general failure of issue; and the limitation over after the death of a person upon a failure of issue which these words imply, is construed as a limitation upon an indefinite failure, unless the force of the words is restrained or their import controlled by other expressions in the limitation, or by circumstances arising on the face of the will in relation to the land, or to the donee or devisee. If the words are, leave no issue at the time of his death, of course the failure intended is defined as a failure at the time of the death. If the words are, die without issue living W., the words import a failure upon the death of the person named in the lifetime of W., or when W. is living. And in one case it was decided, that the words, “ if one die and leave no issue behind him ” would operate to (restrict the limitation to a failure at the
death of the first taker.
Porter
v.
Bradly,
3 Durnf. & East, 143. In neither of these cases can we find authority for restricting the words of this will to a failure of issue at the death of each grandchild.
In the case of
King
v.
Rumball,
(Cro. Jac. 448,) there was a devise of lands to the wife for life, remainder to three daughters, and if any of them died before the others, then the others to be her heirs, and if they all died without issue, remainder over. It was held that the daughters took vested estates-tail. In the case of
Chadock
v. Cowley, Cro. Jac. 695, there was a devise to A. and B. severally in fee, and that the survivor should be heir to the other, if either of them died without issue; and the court held, that A. and B. took estates-tail, with cross remainders over, in fee.
The words used here are, “ die leaving no surviving issue.” The words, die leaving no issue, by all the English decisions, import a general failure of issue. There is nothing here to limit their import but the word “ surviving.” How this changes the meaning of the words- we do not see, and there is no decision making the use of this word an indication of an intent to limit the failure to a definite period. If he dies and leaves issue, he must leave them surviving. The question is, whether the estate is to go over in the event of there being no surviving issue at the period of the death, or none surviving at some remote period, whenever it shall occur; and it seems to us that all the logic which can be urged in favor of the interpretation so uniformly put, by the English decisions, upon the one set of words, is equally potent when applied to the other.
There is a class of decisions in this country to which we are cited, which have assumed to deny the interpretation given to | these words, and to hold them to import a failure of issue at the 'death of the first devisee. The case of
Fosdick
v. Cornell, 1 Johns. 440, is the leading case of this class. That decision has been followed in the state of New York, until it has now become the settled law of that state. In the case of
Anderson
v.
Jackson,
16 Johns. 382, the question arose in the court of errors of that state, and the previous cases in the supreme court were reviewed, and the doctrine established by them affirmed.
In that case Chancellor Kent, who had been chief justice of the supreme court when the case of
Fosdick
v.
Cornell
was decided, reconsiders the subject, and in a very able and thorough examination of the state of the law and the whole current of decisions from the year 1285 downwards, shows, that the supreme court had departed from the law in the decision of the case; acknowledges his error; and gives his opinion against the decisions in which he had previously joined. The majority of the court, however, differed from him, and decided the case (if we may judge from the only opinion given on that side of the case, the opinion of'a senator) mainly on the authority of the case of
Fosdick
v.
Cornell,
and other cases in the supreme court, which Chancellor Kent, who participated in them, deemed to be founded on error, and which he shows in his opinion, conclusively, as we think, contradicted the whole current of the English cases. At that time, there had been three decisions in the supreme court of New York affirming the doctrine decided in
Fosdick
v.
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Bosworth, J.
The question submitted to the judgment of the court in this case is, whether under the will of Waite Smith, Martha Howell took an estate-tail in the premises in controversy.
The eighth clause in said will gives and devises all the remainder of the real estate of the testatrix unto all her grandchildren, in equal shares, and to their heirs and assigns forever. This devise is qualified by a provision, that if either of the grandchildren should die leaving no surviving issue, then all the estate of the testatrix in her will given to such grandchild, is given to the survivor or survivors of such as shall die as aforesaid, and to their heirs and assigns forever. It is further provided, that if all the grandchildren should die leaving no surviving issue, then the estate is given over to certain other persons therein named.
By the first clause of this article in the will, an estate in fee-simple is given to the testatrix’s grand-daughters. The subsequent provision, in ease of their dying without issue surviving, would, if construed to refer to a general failure of issue, cut the estate down to a fee-tail estate, according to the rule of law. This rule of law was established by decisions of the courts of England immediately after the passage of the statute of entailments, Westminster 2, 13 Edw. I. c. 1, and has continued a
re,cognized rule in the courts of England and this country,from a period so far back as the year 1285 down to the present time. This rule seems to have resulted from the interpretation of the statute
de donis,
which was very early adopted into our laws, and, subject to its modification by our statutes, may be considered as ,in force here now. In some of the states of this country, fee-tail estates have been abolished; and this fact may, perhaps, to a considerable extent, afecount for the contrariety of decisions in reference to the technical words, which, by so many decisions of the English courts, have so uniformly been established as words creating a fee-tail. The rule, that a devise over upon an indefinite failure of issue, — as after the devise' to a man and his issue, or after a devise in fee, — is void for remoteness, or as tending to a perpetuity, is not controverted. The question is as to what words import an indefinite failure of issue, as distinguished from a definite failure, or a failure within a precise time fixed. If the devise over is upon a failure of issue at a particular time fixed, as at the time of the death of the first taker, the gift over is good by way of executory devise; for it is not liable' to the objection of remoteness, and does not tend to a perpetuity.
Now, it appears from a very numerous catalogue of cases, both in the English courts and in the courts of this country, that the words, die without issue, or without having issue, or without leaving issue, import a general failure of issue; and the limitation over after the death of a person upon a failure of issue which these words imply, is construed as a limitation upon an indefinite failure, unless the force of the words is restrained or their import controlled by other expressions in the limitation, or by circumstances arising on the face of the will in relation to the land, or to the donee or devisee. If the words are, leave no issue at the time of his death, of course the failure intended is defined as a failure at the time of the death. If the words are, die without issue living W., the words import a failure upon the death of the person named in the lifetime of W., or when W. is living. And in one case it was decided, that the words, “ if one die and leave no issue behind him ” would operate to (restrict the limitation to a failure at the
death of the first taker.
Porter
v.
Bradly,
3 Durnf. & East, 143. In neither of these cases can we find authority for restricting the words of this will to a failure of issue at the death of each grandchild.
In the case of
King
v.
Rumball,
(Cro. Jac. 448,) there was a devise of lands to the wife for life, remainder to three daughters, and if any of them died before the others, then the others to be her heirs, and if they all died without issue, remainder over. It was held that the daughters took vested estates-tail. In the case of
Chadock
v. Cowley, Cro. Jac. 695, there was a devise to A. and B. severally in fee, and that the survivor should be heir to the other, if either of them died without issue; and the court held, that A. and B. took estates-tail, with cross remainders over, in fee.
The words used here are, “ die leaving no surviving issue.” The words, die leaving no issue, by all the English decisions, import a general failure of issue. There is nothing here to limit their import but the word “ surviving.” How this changes the meaning of the words- we do not see, and there is no decision making the use of this word an indication of an intent to limit the failure to a definite period. If he dies and leaves issue, he must leave them surviving. The question is, whether the estate is to go over in the event of there being no surviving issue at the period of the death, or none surviving at some remote period, whenever it shall occur; and it seems to us that all the logic which can be urged in favor of the interpretation so uniformly put, by the English decisions, upon the one set of words, is equally potent when applied to the other.
There is a class of decisions in this country to which we are cited, which have assumed to deny the interpretation given to | these words, and to hold them to import a failure of issue at the 'death of the first devisee. The case of
Fosdick
v. Cornell, 1 Johns. 440, is the leading case of this class. That decision has been followed in the state of New York, until it has now become the settled law of that state. In the case of
Anderson
v.
Jackson,
16 Johns. 382, the question arose in the court of errors of that state, and the previous cases in the supreme court were reviewed, and the doctrine established by them affirmed.
In that case Chancellor Kent, who had been chief justice of the supreme court when the case of
Fosdick
v.
Cornell
was decided, reconsiders the subject, and in a very able and thorough examination of the state of the law and the whole current of decisions from the year 1285 downwards, shows, that the supreme court had departed from the law in the decision of the case; acknowledges his error; and gives his opinion against the decisions in which he had previously joined. The majority of the court, however, differed from him, and decided the case (if we may judge from the only opinion given on that side of the case, the opinion of'a senator) mainly on the authority of the case of
Fosdick
v.
Cornell,
and other cases in the supreme court, which Chancellor Kent, who participated in them, deemed to be founded on error, and which he shows in his opinion, conclusively, as we think, contradicted the whole current of the English cases. At that time, there had been three decisions in the supreme court of New York affirming the doctrine decided in
Fosdick
v. Cornell, and the court of errors felt themselves not warranted to interfere in disturbing titles which might have been acquired under the repeated and solemn decisions of the supreme court. If this consideration bad weight with the majority of the court of errors in that case, such a consideration should, we think, for much stronger reasons, weigh upon the deliberations of this court, in leading us to a conclusion opposite to the one to which they arrived. In this court, there have been at least three decisions to the effect that the form of words in this will, and similar words, operate to create an estate-tail, because they import an indefinite failure of issue. One of these decisions was in a case arising upon the words of this very will. These decisions have doubtless been made under the authority of the English decisions growing up after the enactment of the statute
de donis.
These decisions, and the statute, so. far as it applies, are, we apprehend, a part of our common law. If the New York courts ought, upon the doctrine. of
stari decisis,
to rest upon the decisions of their supreme court, though they may vary from the English decisions; ought this court to run the risk, of unsettling the law and of disturbing titles under the law as heretofore settled, by overturning
their own decisions, when, too, those decisions are found to be in accordance with the English cases ? It is said that the rule which construes the words, without issue, and the like, as importing an indefinite failure of issue, is an artificial rule; and that it has been abolished in England, and in some of the states of this country, for the reason that it violates the natural meaning of the language, and defeats the intent of the testator. The fact that the rule has been abolished by statute, shows that prior to the statute it had become established; and if in England and other states it has been found necessary to abolish the rule by legislative acts, we ought not to attempt to do the same thing by judicial construction. In truth, this rule of law has been so long settled by the decisions of courts, that we are authorized to believe, that whenever the words are used in a will, they are used with reference to the construction which the law has put upon them. Whether the construction is the natural one or not, it is the legal one; and if we change it by a judicial interpretation now, we may interfere with titles acquired on faith of the law as heretofore settled, and create mischiefs which we may not foresee.
We therefore overrule the exceptions, and judgment must be rendered upon the verdict.