Flinn v. Davis

18 Ala. 132

• Court: Supreme Court of Alabama
• Decided: June 15, 1850
• Status: Published

Opinion

DARGAN, C. J.

We tlink the testimony fully establishes that the will was duly executed, and that the testator was of sound mind. It is, therefore, only necessary to examine the questions growing out of its construction.

By the second and fourth clauses of the will, the testator willed and devised to his infant daughler, then unmarried, and to the heirs of her body, certain lands, a number of slaves, with other-persona] property; also, all the money be might die possessed of, or that might be due to him at the time of his death. The fifth clause of the will is in the following language — “If my said daughter should die without leaving lawful issue from her body, then I will and ordain that all the estate which she may die possessed of or entitled to, both real'and personal, under and by virtue of my will, shall go to and be equally divided between Benjamin Davis, the son, and Lucy Ann Davis, the daughter of my brother Sugar Davis, and to their heirs, and to hold the same share and share alike forever.” The widow of the testator married after his death, and the complainant, who was born before the death of the infant daughter of the testator, is the issue of that marriage. The devisee died in 1844, in infancy, without issue, and the executors paid and handed over to the guardian of Benjamin and Lucy Ann Davis, the share of the personal estate to which she was entitled under her father’s will. The object of this bill is to recover from them all they received from the exe'cutors, on the ground that the infant daughter took under the will a fee simple estate in the land, and the absolute right to the personalty, which on her death descended to her heirs, and did not go over by the will to Benjamin and Lucy Ann Davis. It is contended by the plaintiff that the contingency, upon which Benjamin and Lucy Ann Davis were to take under the will, is too remote; that the words, “ die without leaving lawful issue of her body,” mean an indefinite failure of issue, and do not limit the intention of the testator to issue living at the death of his infant daughter. If these words were now to be construed for the first time, and a legal meaning affixed to them, there is perhaps no one conversant with the English language, who would not at once say that the testator meant issue living at the death of his daughter, that is, he intended if his daughter died and left issue, such issue should take instead of' Benjamin and Lucy Ann ; but if she left no issue living at her death, then and in that event only, the property should vest in Benjamin and Lucy Ann Davis — that the expectation or right of Benjamin and Lucy Ann, ever to succeed to the properly was entirely cut off, if the infant daughter of the testator had issue living at her death, in whom it could vest. This is the plain and natural meaning of the words. But it is said that these words have repeatedly received a different judicial construction, and on this construction titles to property, and the rights of many in the community, depend; that the courts are bound by such construction and cannot depart from it, without introducing a new rule of property, destructive of the vested rights of those, who quietly repose, believing themselves secure in their possession, as they hold in accordance with the judgments of the highest judical tribunals of the country.

I frankly admit that if words in a will or deed have uniformly, had attached to them a specific meaning by the judgments of our courts, we must continue to apply the same meaning to them, notwithstanding this meaning might, in our opinion, be different from the natural import of the words; otherwise titles to property would become uncertain, and the judgments of out-courts would he as it were snares to entrap those who rested with confidence on them. Laying aside then the plain and natural import of the words used in this will, let us examine the construction that has been placed on them by our own courts, and the courts of England, whence we derive our notions of the common law.

After the best examination I can give to the English authorities, I find that the words used in this will, or other words of precisely similar import, have for more than one hundred years been construed to mean issue or children living at the death of the first taker, when applied to personal estate; and the same words, when applied to real or freehold estate, have been construed to mean an indefinite failure of issue, and to create an estate tail in the first taker by implication; or if an estate tail was expressly created by other words, then the words in this will would not be so construed as to limit it to an estate for life, but would be construed to mean an indefinite failure of issue at any time, however long, after the death of the first devisee. It would be useless, if not impracticable, to review in this opinion, all the cases I have examined, but I propose to notice briefly some of the leading ones. The first I shall advert to is Atkinson v. Hutchinson, 3 P. Wms. In that case Edward Baxter being possessed of a term for years, devised the premises to trustees in trust, first to keep them in repair, and to pay the overplus to Sarah, his wife, for life, if she should so long continue a widow, and after her death, or second marriage, for the use of such children as the testator should leave living at his death, equally amongst them ; and in case any of his children should die without leaving any issue, the share of him or her so dying to be divided between the survivors; and if all his children died without leaving any issxie, then to the use of John Hutchinson. All the children of the testator died leaving no issue, and the question was whether the bequest over to Hutchinson was too remote. The Lord Chancellor held that the words, die'without leaving issue, must be intended to mean issue living at the death, and consequently that the devise over to Hutchinson was not too remote. In the opinion pronounced, the Chancellor adverted to the distinction between a devise of real, and a bequest of personal property. He admitted that if the devise had been of freehold estate, the limitation over would have been too remote, but as it was personal property, the court laid hold of the word leaving, as indicative of an intention of tying up, or limiting the contingency to the death of the first taker; that is, it meant issue living at the death of his children, or surviving child. In the case of Read v. Snell, 2 Atkyns, 646, the subject matter of the bequest was personalty, and the language was, “and in case my daughter-should die leaving no heirs of her body,” then over to others. Lord Hardwicke decreed the bequest to be good, and relied on the word having, as showing that the testatrix meant heirs of the body, living at the-death of ihe daughter. Lord Hardwicke examined many of the decisions in-the opinion delivered, and particularly the case of Forth v. Chapman, 1 P. Wms., in which the language of the will was “ and if ray said nephew shall depart this fife and leave no issue of his body, then over.” Lord Macclesfield held the bequest over of the personalty to be good, relying on the word leave, and Lord Hardwicke said, that this decree had never since been impeached.

In the case of Goodtitle on the demise of Peake v. Peyden, 2 Dunf. & East, 720, the testator devised a chattel interest to P. and to the heirs lawful of hi pi forever, but in case he should happen to die and leave no lawful heir, then ower. It was decided that lawful heir in this will meant heir of the body, and that the word have limited die contingency to the death of the first taker, and it was therefore good as an executory devise. In the case of Forth v. Chapman, 1 P. Wms., 663, the testator gave both real and personal estate to his two nephews, and if either of them should depart'ibis life and leave no issue of their respective bodies, then he gave the property devised over to other persons. • Lord Parker, on appeal from the judgment ©f Sir Joseph Jekyll, said — “ If I devise a term to A., and if he die without leaving issue, remainder over, this must be intended, if A. die without leaving issue at his death, and then the devise over is good; and although both real and personal estate was conveyed by the same words in the same will, yet, in reference to the realty, they were held to mean an indefinite failure of issue,, but, in regard to the personally, they were held to mean a definite failure, that is, a failure of issue at the death of the first taker.”' In the case of Sheffield v. Lord Oweny, 3 Atkyns, 288, the words of the will, on which the question arose, were, and “leave no issue behind him,” then over. Lord Hardwicke held that, in regard to the real estate, the contingency was too remote; but in reference to the personal property, they meant issue living at the death of the first taker, and in the opinion delivered, he said, I do not see any reason why the same words in the same will-may not rqceive different constructions; to say they cannot is contrary tqjhe.case of Forth v. Chapman. In the case of Croake v. De Vandes, 9 Ves. 197, both real and personal estate was devised to a grandson and the heirs of his body, but should he die and leave no stick heirs, then over. The case.was argued for the remainderman by Mr. Lloyd, Mr. Richards and others, and on the other side by Mr. Mansfield, Mr. Romily, and Mr. Cooke, who relied on the authority of the case of Porter v. Bradly, as overruling the distinction taken in the case of Forth v. Chapman. In the opinion delivered by Lord Eldon, he said, “ when I read the case of Porter v. Bradly, speaking with all due deference to the learned Judge who expressed that dictum, it appeared to me that it went to shake settled rples to their foundation. I had heard the case of Forth v. Chapman cited for years, and frequently by Lord Kenyon himself, as not to be shaken.” He decreed the limitation over of the leasehold to he good, and said that the words '-and leaves no such heirs,” had received a settled construction, when used in reference to personal estate, to mean dying without issue living at the death. But the cases are so numerous, that I cannot advert to all of them, and I will content myself by reference to the case of Doe on the Demise of Cadagan v. Ewart, 7 Adol. & Ellis, 636. In this case the words of the will, on which the question arose, wrere, “but in case it should happen that my said daughter Isabella should depart this life without leaving issue lawfully begotten,” then over to others. Lord Denham pronounced the opinion of the court, after the cause had been held under advisement for several months. He reviewed all the decisions relied on as impugning the authority of the case of Forth v. Chapman, and the result of his judgment was that the principle recognised in that case was the settled law, and never had been overruled, although some of the judges had .by way of dicta doubted its authority. In this opinion, which was delivered in 1837, the court of Kings Bench concurred, and I think I may safely assume, that it was the settled law of England, that where personal property is given by will to one, or to one and the heirs of his body, and to the gift is added the words, if he die without leaving issue, or, if he die and leave no issue, then over; that the word leave will limit the contingency to the death of the first taker, and will not be construed to mean an indefinite failure of issue, and therefore the remainder over will be good by way of executory devise. It may be as safely said that if these same words are used in reference to real estate, that they would be construed to mean an indefinite failure of issue. Thus stood the law in England until an act of Parliament was passed, which declared that the words die without issue, or without leaving issue, whether used in reference to personal or real estate should be construed to mean a failure of issue at the time of the death of the first taker. At an early period of our judicial history, this court held that when a testator loaned slaves to his daughter during her life, and if she leaves heirs of her body, then to such heirs, and for the want of such heirs, then over; that the bequest over was not too remote, and that it was the intention of the testator to limit the contingency to the death of the first taker. — Bell & Wife v. Hogan, 1 Stew. 536. Again, in the case of Doyle v. Bouler, 7 Ala. 246, a testator after making some other bequest, used the following language —“And the rest of my estate, negroes, household goods, &c., I give unto my wife Anna Fowler, during her life and widowhood, and ather death to be equally divided amongmy six children; if any of my children die before my estate is divided, their children lawfully begotten to stand in their place, and if any of my children die leaving no heirs lawfully begotten of their bodies, their part must be equally divided amongst the rest of my children, and their children lawfully begotten.” After making some further provisions as to the manner in which he desired his slaves treated, the testator declared that the slaves were only lent to his children, and given to his grand-children. This court held that the devise over was not too remote. The Chief Justice, who delivered the opinion of the court, said, “the term heirs of the body, in the sense they are here used, are words of purchase, and do not postpone the period of the failure of the heirs of the first taker to a period beyond his death. This is satisfactorily shown by the words die and leaving, and the declaration that he loaned the slaves to his children and gave them to his grand-children.” It is true,that in both these cases the testator expresssd the intention to loan the slaves to the first taker for life, but I apprehend that although the word loan was used, yet it must be considered as a gift for life, and had the word give been only used, the limitatation over would have been held good. These two decisions of our own court sanction the rule of construction that has obtained in England for more than one hundred years, that where the subject of the bequest is personalty and the limitation over is created by the words die without leaving issue, or, die and leave no issue, the word leave will limit the contingency to the death of the first taker. I now propose to examine some of the decisions of our State courts, and here I will express my regret that we find conflict that cannot be reconciled; and if I had to rely on them alone for authority, or as lights to guide me to a conclusion, I should feel disposed to disregard all of them and to pronounce my own opinion on the law of the case, irrespective of precedent. It is a little strange that there should be such conflict on a question governed purely by the common law, but the very existence of this difference in the opinions of the most intelligent courts of the Union, who derive their notions of the common law from the same source, shows us the propriety of resorting to, and examining for ourselves the common source whence we deiive the common law, and not to rely with too much confidence on the examination of others. The bequest in the case of Cudworth v. Hall, 3 Dessaus. 256, was of personal property, and the testatrix, after giving it to her two nephews and their heirs and assigns forever, added, “but in case both my nephews die without leaving issue of their bodies,” then over. The bequest over was held good as an executory devise. To the same effect is the case of Clifton v. Haig, 4 Dessaus. 330. In the case of Moore v. Howe, 4 Monr. 149, the bequest was personalty, and the Supreme Court of Kentucky., after an elaborate examination of the question, held that the words leaving no lawful issue would limit the contingency to the death of the first taker. — In the case of Robert v. Jones, 4 Iredell, 53, the same construction is put on the words die without leaving issue, the bequest being oí personalty; and in the case of Jones v. Speight, 1 Car. L. Repos. 544, the Supreme Court of North Carolina held that the words without leaving issue, when the bequest was of personalty, limited the contingency to the death of the first taker, and as estates tail were abolished in that State, they would lay hold of the same words in a will devising real estate, as indicative of the intention of a definite failure of issue, that is, a failure of issue at the death of the first taker. There are some of the American cases that may be cited, which recognise the rule, that if the bequest is of personalty and the remainder over is created by the words, die and leaye no issue, ■ or, die without leaving issue, the>*court will attach to the word leave or leaving, the intention of at-definite failure of issue, and bold that it limits the contingency- to the time of the death •of' the first taker.

©a the other hand, some of. the American cases hold that the word leave or leaving, whea-.used in reference to personal estate, does not limit the contingency to the death of the first taker, but denotes an indefinite failure of issue. One of •the leading cases is Patterson v. Ellis, 11 Wend. 259. In this case, the limitation over was created by the words, die without leaving lawful issue, and the bequest was of personalty. It was decided that the limitation over was too remote* and the first taker had the absolute right to the whole. But I submit that any unbiased mind, after an examination of the English authorities, and keeping in view the distinction between personal and real property, mu«t pronounce that Judge Savage, who delivered the opinion of a. majority.' of the court, ,is not sustained by authority. The error of his argument ¡is in this; he argues that if the subject matter of the devise had been real, instead of personal property, the devise would have been construed as creating an estate tail, and therefore, as it was personalty, the contingency was too1., remote and the. remainder void, without adverting to, or- ak lowing the distinction that has long prevailed, that although the courts would hold the words to create an estate tail, if used in referenca to real estate, yet if personal property was the subject of the devise, they would struggle hard to limit the contingency to the death of the first taker, in order to give effect to the whole will, and for this purpose the word leave or leaving, when used in reference to a bequest of personal property, has uniformly been held sufficient to justify the court in holding that the testator intended to limit the contingency to the death of the first taker. The reason of this distinction between real and personal estate was, that the ■ common law not only permitted estates tail, but they were a favored species of estates, and by construing the words • used in this will as creating an estate tail, they gave effect/1 to the devise over as a contingent remainder expectant &mt( the ultimate failure of issue of the first taker; that is, they-would hold that tl;e first taker took an estate tail and the devisee over — a contingent remainder expectant on the failure of the heirs of the body of the first taker. But, as no estate tail could be created in personal property, in order to give effect to the whole will, they would lay hold of words, as indicative of the intention of a definite failure of issue, which would not have that effect, when used in reference to real estate. By this mode of construction effect was given to the devise over, whether it consisted of personal or real estate, and the courts supposed they were carrying out the intention of the testator. For instance, if the devise was of real estate, the first object of the testator’s bounty was supposed to be the first devisee, and if he should die leaving issue, but this issue afterwards failed, it was supposed that the testator intended that the remainder-man should then take, and to effectuate this intention, which was lawful in reference to real estate, they construed the devise as an estate tail, with a contingent remainder over, which ultimately might carry the estate to the remainder-man unless barred or destroyed. In reference to persona! property, however, the bequest over must take effect, if at all, as an executory devise, and supposing that the testator intended the devisee to take at some time, and as he could not take, unless the intention was that he should take at the death of the first taker, or within twenty-one years and a fraction over, and the courts, for the purpose of giving effect to the intention and to prevent its being defeated altogether, in reference to the remainder, held many circumstances and expressions, as indicating a definite failure of issue and limiting the contingency to the death of the first taker, that would have been overlooked, or disregarded in devises of real estate. Hence arose the distinction, that the same words in the same will in reference to real estate would be construed as an estate tail, but in reference to the personalty devised, would be construed as an executory devise, dependant on the failure of issue of the first taker at the time of his death. Whether it was wise to draw such a distinction between real and personal property, it is unnecessary to enquire. It has been done, and has been sanctioned for more than a hundred years. We are therefore bound to hold that the devise over, so far as it relates to the personalty, is not too remote, but is good as an executory devise.

But the question now arises, what construction shall we give to the will, so far as it relates to the realty i In England the infant daughter of the testator would have taken an estate tail, and the contingency, on which the devise over is made to depend, would have been considered too.remote, and Benjamin and Lucy Arm Davis could not have claimed the land by way of executory devise, but could have claimed it by way of contingent remainder. In this State, however, estates tail are not permitted to exist, and words, that at the common law would give an estate tail, here create an estate in fee. If we must therefore construe this will as creating an estate tail in the infant daughter of the testator, and the dev.ise over too remote to take effect as an executory devise, then we should be compelled to deny the right of Benjamin, and Lucy Ann Davis to the land, for the infant daughter, under our statutes, would have taken the entire fee. The courts of England were inclined to construe all devises of real estate as creating estates tail, if it could be done without violating the intention of the testator, because such estates were not only permitted, but were a favored species of estates at common law. In this State,, however, estates tail are abolished. Lands, like personalty, descend to all the heirs, share and share alike; they are liable to be sold absolutely for the payment of debts, and the legislation of our country has gone far, to-pet them on the same footing with personal property. Under this legislation are we to pursue the distinction taken in the case of Forth v. Chapman, or are we to repudiate it ? This is the first time- the question, has ever been raised in. this State, and we are therefore-at liberty to examine it on principle.. The reason that influenced the English judges to construe the same words, in reference to-land, so as to create an estate tail, whilst they would hold them to create a good executory devise as to. personally, was- to give effect to the devise over in hath instances, presuming such to have been the intention of the testator. If the subject of the devise was realty, as it was lawful to create an estate tail, they presumed such to have been the intention of the testator, for by so construing it, the devise over might ultimately, take effect and cany the estate to the last devisee in the .shape of a contingent remainder expectant on the determination of the estate tail, and it was one of the cardinal rules in construing devises over,-not to construe them as executory devises, if, by any means, they could take effect as a contingent remainder. But in reference to personalty no estate tail was permitted, and the devise over could only take effect by construing it to be an executory devise. For the purpose, therefore, of giving effect to it, the courts caught hold of many expressions, as indicating the intention of a definite failure of issue, that would have been disregarded, had the devise been of land. Thus they carried out the intention of the testator, both as to real and personal property. If we, however, follow the distinction of Forth v. Chapman, and hold that the same words are insufficient to create a good executory devise of real estate, that are sufficient in personal property, we shall not be governed by the reasoning that influenced the courts of England in drawing the distinctions but, on the contrary, we must presume an unlawful intent on the part of the testator in reference to the land, and a lawful intent in reference to the personalty, and thus we should put both a lawful and unlawful intent on the same words in the same will, and thereby defeat the devise over of the realty. The distinction was drawn to prevent the devise over from being defeated, as to either the real or personal estate. Shall we follow it, after the reasons for its existence cease, for the purpose of defeating the devise over ? I am clearly of the opinion that we should not, but that we should hold that the same words, which will create a good executory devise as to personal property, will also be sufficient in this State to create a good ex-ecutory devise as to land. In this conclusion I am sustained by two decisions of the Supreme Court of North Carolina. In Jones v. Speight, 1 Car. L. Repos. 544, in which the devise was of land, and the language of the will creating the devise over, was die without leaving issue, the court held that, as entails had been abolished, there was no reason for following the distinction of Fo.rth and Chapman, but that the same words should be construed to create a good executory devise, whether of land or personal estate. In Zollicoffer v. Zollicoffer, 4 Dev. & Bat., the devise was of both real and personal estate, and it was admitted that the words of the devise would have created an estate tail in England as to',.the land, but that they would have been construed as a good executory devise as fo the personalty. The court held the same doctrine recognised in Jones and Speight, and as the words of the will were sufficient to create a good executory devise as to the personalty, therefore they were deemed sufficient to create a good executory devise as to the realty.

These decisions we think a just exposition of the law, where estate tails are not permitted, and fully sustain us in our judgment, that the words of this will do not mean an indefinite failure of issue, but, on the contrary, that the testator contemplated issue living at the death of his infant daughter. The contingency therefore is not too remote.

2. But it is contended that the first taker had the power under the will to dispose of the whole estate, real or personal, or any part of it, for her own use, and that such a power is inconsistent with an executory devise, and shows that the testator intended to give the entire estate to his infant daughter absolutely and unconditionally. I admit that the absolute power of disposition would be inconsistent with the nature of an executory devise, and would show that the intention of the testator was to give to the first taker the entire estate, unless a bare life estate was given with a naked power of appointment in favor of others, which is clearly not the case here. The question, therefore, is, does the will give the infant daughter of the testator the right to sell or dispose of the property devised, at her own pleasure and for her own use? In the case of the Attorney General v. Hall, Fitzg. 314, the devise was of real and personal estate to the son of the testator and to the heirs of his body, and if he should die leaving no heirs of his body, then so much of the estate as he should be possessed of at his death was devised over. The son suffered a common recovery of the real estate and made a will as to the personalty, and died without issue. It was held that the limitation over was void, because the absolute ownership was with the first taker, who had by the terms of the will the right to dispose of the whole. Again, in the case of Brewster v. Bull, 10 Johns. 18, the devise was of land, and the language of the will was, “ in case my son should die without lawful issue, the said property he dies possessed of, I will to my son Y.” The Supreme Court of New York held the limitation over void, because it was repugnant to the absolute ownership resulting from the right to dispose of the property. So in the case of Ide v. Ide, 5 Mass. 500: The devise was to Peleg Ide and his heirs, and assigns forever, and to the devise are added the following words: “ and if my son Peleg shall die and leave no lawful heirs, what estate he shall leave to be equally divided between my son John Ide and my grand-son Nathaniel.” Chief Justice Parsons said that the limitation over is not of the estate devised, but of what Peleg should leave. From this expression it is clear that the testator intended that Peleg should have an unqualified power to dispose of the whole. And he held that this power of disposition was inconsistent with the devise over, and showed that the entire estate vested in the first taker. Many other authorities might be cited to the same effect, but it is unnecessary, as it is well settled, that if the first taker has the power, by the terms of the will, to dispose of the property, he must be considered as the absolute owner, and the limitation over void. The words of this will, however, are: “If my said daughter should die without leaving lawful issue from her body, then I will and ordain that all the estate which she may die possessed of or entitled to, both real and personal, under and by virtue of my will, shall go to, and be equally divided,” &c. If we ask the question, what estate or property did the testator devise over, the answer will be all his daughter was possessed of at the time of her death, and all that she was entitled to under the will. What then wras the meaning of the testator ? Did he intend to devise over only such as she might be possessed of? I think not. But he intended to give over, not only such as might be in her possession at the time of her death, but all that she took under the will, whether in her possession or not. Had the testator stopped at the words, “ possessed of,” this case would have fallen directly within the case of Jackson v. Bull, 10 Johns. 18, but he adds the words, or entitled to under and by virtue of my will. These words enlarge the devise over, and in my opinion were designed to embrace all the estate that his daughter should be entitled to receive from the hands of his executors under the will. The language at least is capable of this meaning, and by thus construing it, we carry out one of the obvious designs of the testator, by sustaining the remainder over. But by implying from this language an absolute power of disposition, we defeat one of the manifest objects of the testator, and this too, by placing a construction upon language capable of bearing a meaning entirely consistent with the expressed intention of the testator. I hold it to be a sound rule of construction, that if the language be capable of two distinct meanings, one of which would sustain but the other defeat a plain and manifest design of the testator, we should so construe it as to support the manifest intention, and should not imply an intention repugnant to the expressed will of the testator, unless the language will bear no other reasonable-construction. Even then, if it were doubtful whether the testator intended his daughter should have the power of disposing: absolutely of all the property he devised to her by the will, this-doubt should not defeat the remainder over. That the testator intended to create a valid remainder over is beyond doubt, and the language, from which it is argued he has defeated this remainder, is capable of convoying a meaning that-will support it; we cannot therefore defeat the remainder without giving effect to-a doubtful intention at the expense of one of the plain and maníes t designs of the testator.

[After the delivery of this opinion, at June Term, 1849, the Hon. H. W. Collier resigned bis seat upon the bench, and the Hon. Silas Parsons was appointed in his stead. A petition for a re-hearing was thereupon presented and granted, and the cause was re-argued a! the January Term, 18-50.]

Since the re-argument of the case, I have deliberately re-examined my opinion, and I trust with the view of ascertaining and applying the rules of law that should govern it, and I am compelled to say that my examination has but confirmed me in my opinion. I must therefore adhere to it, notwithstanding the respect I entertain for the opinions of my brethren. I think they have carried the doctrine of defeating a remainder over, created by an executory devise, by implying an absolute power, or right of disposition, in the first taker, farther than any case that can be-found, and, in my humble judgment, by implying a power never designed to be given by the testator.

CHILTON, J.

When this case was first argued, I was a stable to agree with the late and present Chief Justices in the conclusion at which they arrived. It lias been since re-heard, and having given to it all the consideration which its importance demands, I proceed briefly to state my views of it, which remain unaltered.

The questions before us arise upon the construction of the will of Norphlet Davis, the 2d, 4th, and 5th items of which-are as follows: — “Item 2d. I will, and devise and grant, and bargain* to my infant daughter, at this day and date not married, all the .lands and premises and appurtenances thereto belonging, which I may die possessed of or entitled to, to have and to hold the same unto her and the heir or heirs of her body forever, subject however to the provisions and uses above specified in favor of my wife, Elizabeth Ann Davis.”

“ Item 4th. — I will and bequeath unto my infant daughter, and to her heir or heirs of her body, the following named slaves, viz : Levi, &c.” (setting out their names, &c.) “ I also give and .bequeath unto my daughter all money, which I may die in possession of, or which may be due me at the time of my death, or thereafter, to become due, either by bonds, notes, mortgages, or in any other manner, together with all other personal property which I may own orbe entitled to, at the time of my deanh, and not otherwise disposed of by me.”

“ Item 5th. — -If my said daughter shall die without leaving lawful issue from her body, than I will and ordain that all the estate which she may die possessed of or entitled to, both real and personal, under and by virtue of my will, shall go to and be equally divided between Benjamin Davis, the son, and Lucy Ann Davis, the daughter of my brother Sugar Davis, and to them and •their heirs, to hold the same share and share alike forever.”

The daughter died, leaving no children or descendants of them. The complainant, who is the heir at law of the daughter, insists that this will vested in her the absolute property; on the other hand, the defendants, Benjamin and Lucy Ann Davis, contend that the limitation over is good as an executory devise, and vests the property in them upon the death of the first devisee. My ppinion is that the remainder over, attempted to be created by the 5th item, cannot be supported as an executory devise, and that the absolute property vested by the will in the daughter of the testator.

The law applicable to the case has been ably commented upon by the counsel on both sides, and the numerous cases cited upon their briefs have been carefully examined. I do not propose to review all these decisions in this opinion, but merely to state, in as brief manner as I can, the general principles deducible from them as applicable to one view of this case, and which I regard as decisive of it.

1. It is a well settled rule of construction, that “ every word of a will must have a meaning imputed to it, if it is capable of a meaning without a violation of the general intent, or of any other provision in the will with which it may appear inconsistent.”— 10 Bac. Abr. (Bouv. Ed.) 533; 1 Ves. (Sumner’s Ed.) n. 4 and cases cited on p. 195. Tested by this rule of construction, it appears to me perfectly clear, that the fifth item in the will of Norpldet Davis only gives to the remaindermen so much of the property bequeathed to his daughter, as should remain undisposed of at the time of her death; thus confering upon her by necessary implication the right of disposing of it. The limitation over is “ of all the estate which she (the daughter) may die possessed of or entitled to, under and by virtue of my will, ifc.** Jf it had been the intention of the testator to create an executory devise over, and consequently to’have denied to the daughter the power of disposing of the property, would he not have omitted the whole of the above italicised expression? Would not his intention have been clearly expressed by striking these words from this clause of the will ? It would then have read thus: “If my said daughter shall die without leaving lawful issue from her body, then I will and ordain that all the estate shall go t® and be equally divided between Benjamin Davis, the son, and Lucy Ann Davis,” &c. If the testator did not intend by the insertion of these words to limit the devise over to such property as the daughter should own at the time of her death, and t® exclude such of it as she had disposed of, he meant nothing. But the expression is full of meaning, — is plain, simple and unambiguous, and to discard it altogether would do violence to the plain language of the will and the indisputable rule of construction above stated. Suppose, for the sake of illustration, the daughter had lived for many years, and that she had actually sold a portion of the perishable property, assuming to sell the entirety, and died without issue living at the time of her death, and that this suit was by the remaindermen against her vendee. The latter would say in response to their demand, the will under which you claim only gave you the estate which the testator’s daughter should die possessed of or entitled to under it. She did not die possessed of this; it was in my possession; neither was she at the time of her death eutitled to it under the will, because she had sold it to me, and parted with her title. The court would then be called upon to construe these words. Could any court hold that they were mere surplusage ? I can see no pritaciple which would justify such construction, and should unhesitatingly pronounce in favor of the vendee.

There are several cases which I think sustain the view here taken. In Jackson ex. dem. Brewster v. Hall, 10 Johns. Rep. 19, the testator bequeathed to his son, Moses, the premises in dispute, and by a subsequent clause declared, “ In case my son, Moses, should die without lawful issue, the said property he died possessed of, I will to my son, Young, his lawful issue, &c.” It was held that the limitation over was void as being repugnant to the absolute ownership confered by the’will on Moses, as shown by his implied right of disposing of the property.

In the Attorney General v. Hall, Fitzgibbon 314, the bequest over was of so much of the real and personal estate as he (the first devisee,) should be possessed of at his death. The first taker suffered a common recovery as to the land, and made a will of the personal estate, and died without issue. It was held that tail created in the land was barred by the recovery, and that the limitation over of the personal estate was void as repugnant to the absolute ownership and power of disposal given by the will. I have not been able to lay my hand upon this volume, and have quoted the language used by Parsons, C. J., in Ide v. Ide, supra. I am, however, cited by the counsel to the decision of the case of Read v. Snell, 2 Atk. 648, where Lord Hardwicke quotes the language thus — “ I give the residue to my son, Francis Hall, and the heirs of his body, to his and their own use; but in case my son should depart this life, leaving no heirs of his body living at the time of his decease, then I give so much of the said residue, as shall not have been disposed of by my said sont to the Goldsmiths' Company." This perhaps gives a clearer indication of the intention of the testator to confer the right of disposing of the property upon the son, than the words as quoted by Chief Justice Parsons, but still it is in point to show that where the right of disposition is given by necessary' implication, it is inconsistent with the limitation over by way of executory devise. Besides, the language conveys pretty much the same idea with a slight variation in the phraseology. There is but little difference in the ordinary acceptation of the language used, between “ so much as he shall leave undisposed of” and “ all that he may die possessed of, or entitled to, &c.” Each implies the right of disposition. In Ide v. Ide, 5 Mass. R. 500, the testator made an absolute gift of real and personal property to his son, and added, that if he should die. and leave no lawful heirs, what estate he shall leave, to be equally divided, &c. The limitation there was held to be void, because it was repugnant to the power of disposition impliedly given by the will. — See also, Jackson v. Robins, 16 Johns. R. 637, where the foregoing cases are commented on and approved — see also 11 Wend. 276, and cases there cited.

I repeat, that these decisions, although none of them embrace the exact language used in the will before us, are nevertheless in principle closely allied to it, and they settle very clearly the rule which is recognised also, by various elementary writers, that a valid executory devise cannot exist, where the first taker has the power of defeating the limitation by disposing of the property, whether it be real or personal. JNor. does it make any difference whether the first taker has exercised the power of alienation or not, if it be confered; if the clear intent of the testator was to give to the first taker the absolute control of the property, it is inconsistent with, and destructive to the limitation over by way of executory devise. — 1 Jarm. on Wills, 786; 2 Saund. 388, d, and cases supra.

But it is supposed that the adding of the words, “ or entitled to under and by virtue of my will,'” shows that it was the intention of the testator to create a limitation over in the whole of the property confered by the will on the daughter, and that the power of alienation is not therefore confered. If we supply the word “die” in the latter clause of the sentence, (and it is evidently understood) the meaning to my mind is exceedingly clear, and the reason for the insertion of the last clause may very readily be imagined. The sentence would then read thus, “all the estate she may die possessed of, or die entitled to under and by virtue of my will,” &c.. She might not die possessed of some of the estate to which she might be entitled under the will; or it may be that by the latter clause of the sentence, the testator intended to explain more particularly his meaning as expressed in the first, to wit: not that he was bequeathing over all that his daughter might die possessed of, whether it was properly which passed to her under the will, or was acquired by her otherwise, as the words taken literally would import, but only such as she should die entitled to under the will. The former hypothesis, however, I think the more reasonable, and I have but little doubt, suggested the insertion of the last branch of the sentence, as the latter would imposea restriction, which the law would imply without it, and would thus have been wholly useless.

The construction, which I place upon the latter clause of the fifth item of the will, gives effect to all the words, and harmonizes with the general intent of the testator to be gathered from other parts of the will and carries it into effect, so far as it is legal, whereas the contrary construction regards them as surplus-age and unmeaning. When the testator, in the second item of the will, desires to designate the lands which he devises to his daughter, he uses similar language” — “ all the lands, &c., which I may die possessed of or entitled to.” He might have died entitled to land, of which at the time of his death he was not in possession, and hence the propriety of inserting the words " or entitled to.” A similar expression occurs in the foulh item, in respect to his personal property. Retaining as the testator did the right of disposing of the property at any time during his life, and of which right, if he had so desired, he could not have deprived himself by any provision in his will, it is clear that he used these expressions as descriptive of the property which should vest in his daughter upon his death, namely, such as he should not dispose of otherwise — as he should “ die possessed of or entitled to.” This is persuasive to show that kindred expressions occurring in the succeeding clause of the will were used and should be understood in the same sense. — 2 Chan. Cases, 169; 2 Ves. 616; 12 Pick. R. 436; 10 Bacon’s Abr. (Bouv.) 539. It is clear that the testator’s daughter was the leading object of his bounty. His main intent was to make a suitable provision for her. He gives the property to her, not for life, with remainder over; but he gives it to her absolutely, “to her and the heirs of her body forever.”

In no part of the will is there any expression, which, in my opinion, imposes any restraint upon the daughter’s right of alienation. Thus far, the construction, which I give to the will, carries out what I regard the general main intent of the testator. The question then comes up in his mind — suppose the daughter should die, leaving no issue of her body, without having disposed of the property I have given her, what disposition shall be made of the property so remaining? He responds to this suggestion in the language of the 5th item — “ I will and ordain, that all the estate that she may die possessed of, or entitled to,„ both real and personal, under and by virtue of my will, shall go' to and be equally divided between Benjamin Davis, the son, and Lucy Ann Davis,” &o. It seems to me very clear that the object'of the testator was to vest the property .in bis daughter, the main object of his bounty, giving to her the absolute right of disposing of it. If, however, she should die without children, or the descendants of them, and without having disposed of the property, but either in possession of it, or entitled to it under the will and out of possession, then that it should go to his nephew and niece, who were the secondary objects of his bounty. In other words, that he did not intend to restrain alienation on the part of his daughter, but intended to confer it, and also intended that the portion remaining undisposed of at her death should go over, — an intent, with respect to the remainder, which I have shown, and which it is well settled, the law will not carry out. — See on this point, Allen & Wife v. White, adm’r, 16 Ala. 181, and cases cited in the opinion. As this view of the case is conclusive of it, I do not deem it necessary to examine the other question, as to the effect of the word, “ leaving,” in the fifth clause of the will.

In my opinion, the decree of the chancellor should be reversed and the cause remanded; and such being the opinion of a majority of the court, it is accordingly so ordered.

Decree reversed and cause remanded.

PARSONS, J.

I think the limitation over is void, because it is repugnant to the absolute right of alienation of the whole estate, real and personal, which the testator gave to his daughter, the first devisee. He gave the estate which is in controversy, in the first place, to his daughter and to the heirs of her body; and, by a further clause in his will, he provided for the contingency of his daughter’s death, without leaving lawful issue of her body. In that case he devised all the estate that she might die possessed of or entitled to, both real and, personal, under and by virtue of his will, over to Benjamin Davis and Lucy Ann Davis, his nephew and niece. The estate thus devised over was not the estate which the testator had devised to his daughter, but it was the estate which she might die possessed of or entitled to under bis will. This, at most, may have been far less than the entire estate devised to the daughter. Had the testator devised ever so much of the real and personal estSte devised to his daughter, as she should be possessed of or entitled to under the will, at the time ®f her death, the amount and kind devised over would have been the same, and in that case, the limitation or devise •over would have been void, according to die case of The Attorney General v. Hall, Fitz’g. Rep. 314; for the addition of the words, “orentitled to” in the case at bar, were merely intended to include the estate to which she might be entitled under the will, at the time of her death, but which she had not then actually received. By the case just cited, it appears that Hall devised his real and personal estate to his son, and to the heirs of his body, and if he should die leaving no heirs of his body living, the testator devised over so much of the real and personal estate as his son should be possessed of at his death. The son alienated the real estate by a common recovery, and bequeated the personal estate by will to his wife, and died without issue. The court determined that the limitation over was void, because the absolute ownership had been given to the son, for the estate was given to him and-the heirs of his body, and the limitation over was, in effect, of what he should leave unspent, and therefore he had power to dispose of the whole. Lord Hardwicke in Read v. Snell, quotes these words a little different; but I think the difference is immaterial so far as the principle is concerned — see his language in the opinion of brother Chilton. Speaking of the case of The Attorney General v. Hall, Chancellor Kent says, (16 Johns. R. 585) — “ The point of that case then was, that where an estate is given to a man and the heirs of his body, with a power of disposal at his own will and pleasure, it carries with it an absolute ownership, repugnant to any limitation over and destructive of it. The court did not make any distinction between the real and personal estate, and say that the limitation over was good as to the one and void as to the other. They said,, generally, that the limitation over in the will was void, because the testator gave the son an unqualified power to spend the whole.” In Ide v. Ide, 5 Mass. R. 500, the testator by will gave real and personal estate to his son and tó his heirs and assigns forever, and then added, that if the son died without heirs (which the court understood in that case to rneaiKwsac,! the estate which he should leave, was to be equally divided between: two others. It was determined that the limitation over was void, because, as nothing was limited over but the estate he might leave, his power to dispose of the whole was clearly to be implied, which was inconsistent with the limitation over. This is very much the same as a limitation over of what the first taker may die possessed of or entitled to under the will', for that is what he leaves, and it is the case before us. If we look at the provision made for the devisees over in the two cases referred to, rather than to the language employed, they are the same as in this case. In the first case, the testator devised over s©> much of the estate as the first taker should be possessed of at his-death — in the second, the estate which he should leave. In the present case the. devise or limitation over is of the estate which she may die possessed of or entitled to under the will. In neither case could the person, claiming under the devise over, insist on more than the first taker had left, even if he could insist upon any; and in all the cases the first taker bad clearly the implied power of aliena-' tion over the whole estate, and therefore might have left nothing. But there is another case which, is in point, Jackson v. Hull, 10 Johns. R. 19. There the testator gave an. estate to his son Moses, his heirs and assigns, and added “ in case my said son Moses should’die without lawful issue, the said, property he died possessed of, I will to my son Young, his lawful issue” &c. The court held that these words implied a power of alienation by Moses, and consequently an absolute ownership, repugnant to the limitation over to Young and destructive of it. “The said property he died possessed of” were- the descriptive words of what was limited over in the case last cited. .JtCth.is case the words of description are “all the estate;which she may die possessed of or entitled to utider and by virtue of my will.” The words “ or entitled to” &c., were intended to embrace that portion of the estate which according to the will she was not to receive for a considerable time and which she might not receive in her lifetime. But the testator intended to devise it over if she was entitled to it at the time of her death, but not if she had disposed of it. Hence, there were two portions or descriptions of property limited over — that of which she might die posr sessed, and that to which she might be entitled at the time of her death, over both of which she bad, by necessary implication, the power and right of alienation, and therefore the absolute property. I am not aware that the rule of law, which defeats a limitation over after a previous devise with an unqualified power of disposal in the first taker, has recently been denied anywhere. It is a rule of property, upon which many titles may . depend, and it would be of dangerous tendency now to unsettle it. Neither is it denied, so far as I know, but that this power of disposal may arise by implication, though it should be clear. In each of the three cases, to which 1 have refered, the implication arose out of the language which the testator employed to describe what he wished to limit over. In each of the cases, as well as in the case before us, the descriptive words of the estate, intended to be limited over, in effect confine it to what the first devisee might die possessed of or entitled to, and the first devisee in each of the cases might, under the implied power, dispose of the whole estate, and so die possessed of or entitled to nothing, and consequently the limitation over is void for uncertainty. But though the rule is generally admitted, as a rule not to be shaken at this day, yet there has been much discussion with regard to'its application to cases, among which are the cases of Coates’ Appeal, 2 Barr’s R. 129, and Smith v. Bell, 6 Pet. R. 68. Those cases turned upon what was supposed to be the intention of the testators. It was thought they did not intend to give to the first divisees the power to alienate absolutely what was limited over. There is no doubt, a power of the kind cannot exist unless so intended by the testator, but whether he intended it or not is to be determined by the will. The whole will is to be looked to, but in my judgment, there is nothing in the will we are considering, which in the smallest degree controls or restrains the power of disposal which is given to the testator’s daughter. In the course of his opinion in the case last cited, Chief Justice Marshall observed — “In the construction of ambiguous expressions, the situation of the parties may very properly be taken into view. The ties which connect the testator with his legatees, the affection subsisting, between them, the motives which may reasonably be supposed to operate with him, and to influence him in the disposition of his property* are all entitled to consideration in expounding doubtful words, and ascertaining the meaning in wdfich 'the testator used them.” It cannot be admitted that there are any ambiguous expressions or doubtful words in the limitation over which we are considering. Such expressions and words, precisely such in substance, have been settled thrice by courts of acknowledged respectability, and we only follow their lead* But I apprehend that what was so well said by Judge Marshall furnishes strong reasons for applying the rule in this case. The first devisee was the testator’s daughter, and it appears by the will that she must have been a very young child, for she was not yet married. She was the first and dearest object of his affections, for it is to be infered that he had no other child. She was about to be deprived of his parental care and left with no other provision than the estate devised. This in name and substarace was given to her and hers, but over, so far as .not consumed or disposed of by her, to a nephew and niece of the testator, who were certainly not the first objects of his bounty. It is not probable that it was the testator’s intention to confine her, come what might, to the profits of the estate, merely that the estate itself might go over to a nephew and niece. Hence, in this case, it is reasonably certain that the testator actually intended to reserve for her the power of disposal. This he had the full power to do, hut he had not the legal power to devise over what she might leave, or die possessed of, or entitled to, at the time of her death, under his will, and as a majority of the court is of that opinion, it disposes of the case, without going into those other questions upon this limitation which were argued by the counsel on both sides with tanusual learning and ability.