Bryan, J.,
delivered the opinion of the Court.
Peter Gambrill by his last will and testament, executed in November, 1862, made the following devise: “I give and bequeath unto my grandchildren, Peter and Pinkney, all my real estate, reserving half an acre for a burying ground. * * * * In case either the said Peter and Pinkney die without heirs, his portion of the estate shall go to his mother, or if both die, the whole shall go to the mother.” The will was duly admitted to probate, January, 1865, after the death of the testator. It was shown by an agreed statement of facts, that Peter, one of the grandsons mentioned in the will, died in the spring of 1884, intestate, unmarried and without issue; and that his mother; Jané Griffith, the daughter of the testator, survived him, as did also two brothers. In an action of ejectment brought by the appellee against a tenant of Jane Griffith, the question was whether the executory devise to her was valid.
By the common law the words “die without heirs” used in this will had a perfectly clear and well settled construction. A person was said to die without .heirs, if his heirs became extinct at any time, however remote the period might be in the future. And this condition of things was called an indefinite failure of heirs, in contra[24] distinction to a failure or extinction within some specified period, which was called a definite failure of heirs. According to the rules governing executory devises, they are not valid unless the contingencies on which they are limited must happen, if at all, within a life or lives in being and twenty-one years and a fraction of a year thereafter. Therefore, limitations after an indefinite failure of heirs are invalid, because the contingency on which they are limited^ might happen at a remote period in the future, after the lapse of many generations. But limitations after the failure of heirs, within the term of a. life or lives in being and twenty-one years and a fraction afterwards, are not obnoxious to this objection, and are perfectly good and valid. In Dallam vs. Dallam, 7 Harris & Johnson, 220, and Newton vs. Griffith, 1 Harris & Gill, 111, this Court made an elaborate examination of the authorities hearing on this subject, and declared the result as we have stated. In most of the cases in which questionsofthis kind have been adjudicated, the words upon which the questions arose were such as these : “ die without issue,” “die having no issue” or, other equivalent phrases containing the word, “issue.” But most certainly so far as the question ofiindefiniteness or remoteness was concerned, it could not make the least difference whether the word “heirs” or the word “issue” was employed. And we may observe that in the -great and leading case on this subject (Newton vs. Griffith,) the devise was that in case the testator’s two sons, “Joseph and George should decease, leaving no lawful heirs of their bodies, then and in that case,” the limitation was to the testator’s three daughters, and the question which received the Court’s most earnest and particular attention was whether these words imported a failure of issue living at the death of the surviving son, or an indefinite failure of issue; and the decision was that they were to he construed as meaning an indefinite failure of issue.
[25] The Act of 1862, chapter 161, made a very important change in the law on this subject. It provided, “ that the words ‘die without issue/ or ‘die without leaving issue/ or ‘have no issue,’ or any other words which may import either a want or failure of issue, of any person in his lifetime, or at the time of his death, or an indefinite failure of his issue, shall be construed to mean a want or failure of issue in the life-time, or at the time of the death of such person, and not an indefinite failure of his issue, unless a contrary intention shall appear by the will.” It will be perceived that the object of this statute was not to settle the construction of ambiguous words, but to change a construction which had already been firmly established. The Court say in Dallam vs. Dallam, that this construction is established by the authority of more than fifty adjudged cases. 7 Harris & Johnson, 236. And this opinion is solemnly and esplicity approved in Newton vs. Griffith, 1 Harris & Gill; and has never been in the slightest degree questioned. The devise to Peter and Pinkney unaffected by the limitation over to their mother, would give them fee simples by force of the Act of 1825, chapter 119. If either of them should die without heirs, his portion of the estate was limited to Jane Griffith their mother; and the will proceeds to state : “or if both die the whole shall go to the mother.” It will he observed that the mother was to take the portion of either son, who should die without heirs, notwithstanding there should be a surviving brother. As he could not die without heirs if his brother or mother survived him, it is manifest that the word “heirs” could not have been used in the will, in the technical sense.
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Bryan, J.,
delivered the opinion of the Court.
Peter Gambrill by his last will and testament, executed in November, 1862, made the following devise: “I give and bequeath unto my grandchildren, Peter and Pinkney, all my real estate, reserving half an acre for a burying ground. * * * * In case either the said Peter and Pinkney die without heirs, his portion of the estate shall go to his mother, or if both die, the whole shall go to the mother.” The will was duly admitted to probate, January, 1865, after the death of the testator. It was shown by an agreed statement of facts, that Peter, one of the grandsons mentioned in the will, died in the spring of 1884, intestate, unmarried and without issue; and that his mother; Jané Griffith, the daughter of the testator, survived him, as did also two brothers. In an action of ejectment brought by the appellee against a tenant of Jane Griffith, the question was whether the executory devise to her was valid.
By the common law the words “die without heirs” used in this will had a perfectly clear and well settled construction. A person was said to die without .heirs, if his heirs became extinct at any time, however remote the period might be in the future. And this condition of things was called an indefinite failure of heirs, in contra[24] distinction to a failure or extinction within some specified period, which was called a definite failure of heirs. According to the rules governing executory devises, they are not valid unless the contingencies on which they are limited must happen, if at all, within a life or lives in being and twenty-one years and a fraction of a year thereafter. Therefore, limitations after an indefinite failure of heirs are invalid, because the contingency on which they are limited^ might happen at a remote period in the future, after the lapse of many generations. But limitations after the failure of heirs, within the term of a. life or lives in being and twenty-one years and a fraction afterwards, are not obnoxious to this objection, and are perfectly good and valid. In Dallam vs. Dallam, 7 Harris & Johnson, 220, and Newton vs. Griffith, 1 Harris & Gill, 111, this Court made an elaborate examination of the authorities hearing on this subject, and declared the result as we have stated. In most of the cases in which questionsofthis kind have been adjudicated, the words upon which the questions arose were such as these : “ die without issue,” “die having no issue” or, other equivalent phrases containing the word, “issue.” But most certainly so far as the question ofiindefiniteness or remoteness was concerned, it could not make the least difference whether the word “heirs” or the word “issue” was employed. And we may observe that in the -great and leading case on this subject (Newton vs. Griffith,) the devise was that in case the testator’s two sons, “Joseph and George should decease, leaving no lawful heirs of their bodies, then and in that case,” the limitation was to the testator’s three daughters, and the question which received the Court’s most earnest and particular attention was whether these words imported a failure of issue living at the death of the surviving son, or an indefinite failure of issue; and the decision was that they were to he construed as meaning an indefinite failure of issue.
[25] The Act of 1862, chapter 161, made a very important change in the law on this subject. It provided, “ that the words ‘die without issue/ or ‘die without leaving issue/ or ‘have no issue,’ or any other words which may import either a want or failure of issue, of any person in his lifetime, or at the time of his death, or an indefinite failure of his issue, shall be construed to mean a want or failure of issue in the life-time, or at the time of the death of such person, and not an indefinite failure of his issue, unless a contrary intention shall appear by the will.” It will be perceived that the object of this statute was not to settle the construction of ambiguous words, but to change a construction which had already been firmly established. The Court say in Dallam vs. Dallam, that this construction is established by the authority of more than fifty adjudged cases. 7 Harris & Johnson, 236. And this opinion is solemnly and esplicity approved in Newton vs. Griffith, 1 Harris & Gill; and has never been in the slightest degree questioned. The devise to Peter and Pinkney unaffected by the limitation over to their mother, would give them fee simples by force of the Act of 1825, chapter 119. If either of them should die without heirs, his portion of the estate was limited to Jane Griffith their mother; and the will proceeds to state : “or if both die the whole shall go to the mother.” It will he observed that the mother was to take the portion of either son, who should die without heirs, notwithstanding there should be a surviving brother. As he could not die without heirs if his brother or mother survived him, it is manifest that the word “heirs” could not have been used in the will, in the technical sense.
It cannot be questioned that when it is apparent that technical words in a will are not used in their legal signification, such an interpretation must be given to them as will give effect to the testator’s intention. Taking these words in their popular sense, the meaning of the will [26] would be that if Peter should die without children or descendants, the mother should have the land. And it is very difficult to suppose that the testator meant anything else. If we refer to decided cases, we find that similar constructions have been given to such expressions. In Nottingham vs. Jennings, 1 Peere Williams, 23, this was the case: J. S. had three sons, A, B, and C, and devised his lands to B, (his second son) after the death of his mother, to hold to him and his heirs forever; and for want of such heirs, then to his (the testator’s) right heirs. Lord Holt, in delivering judgment, said: “in the present case the word (heirs) can import nothing more than issue ; for how could he possibly die without heir, living the other brother ?. So that the word (heirs) must be qualified, as suppose in this case the lands had been devised to B and his heirs, and if B die without issue then to another, this without all doubt would have been an estate tail.” In Goodtitle vs. Pegden, 2 Term Reports, 720, in discussing the limitation of a term for years by a will, the Court say: “This is a chattel interest limited to T. B. Peake, and the heirs lawful of him forever; but in case he should happen to die, and leave no lawful heir, then over, &c. Now it is apparent on the will, that the testator by ‘lawful heirs’ meant ‘heirs of the body,’ and, leaving no lawful heirs ’ must be confined to ‘ leaving no issue at the time of his death.’ ” In Gable vs. Ellender, 53 Md., 313, which was also a limitation of leasehold property by will, this Court said: “ It is very clear from the context, that the testatrix used the woi’d ‘heirs’- in the sense of ‘heirs of the body ’ or ‘ issue of the body.’ ” In Kent vs. Armstrong, 2 Halstead’s (N. J.,) Chancery Reports, 637, a testatrix devised and bequeathed all the rest and residue of her estates, real, personal and mixed to her daughter Eliza Rosetta, “ to be by her possessed, enjoyed and occupied, to her, her heirs and assigns forever,” with the proviso, “but if my said daughter Eliza should die without [27] heirs and intestate, then my will is, that all the estate herein above devised to her shall vesf in my son Charles M. Armstrong’ and my daughter Mary Salter, and their heirs to be divided between them, share and share alike.” The Court said: “ Die without heirs ” is to be construed as the counsel conceded it to mean, “ without issue.” These authorities abundantly shew the facility with which the word “ heirs ” will be construed to mean issue, when the intention of a testator requires such a construction. Many cases may be cited where the intention did not require that the word should receive this signification; but no case can be found which denies the universal and inflexible rule that the word must bear the meaning which the testator intended to give it, and that this meaning must prevail over its technical import and effect.
Taking then the word “heirs” in the clause of the will in question to mean “ lineal descendants ” or “ issue,” we have the very words, which the Act of 1862 was intended to construe. The case comes entirely within the letter and spirit of the Act. By its express terms, we are required to say that the testator meant to designate a definite failure of issue; that is to say, he intended that the land should go to Peter’s mother, Jane Griffith, in case Peter should die without lineal descendants living at the time of his death. In Dallam vs. Dallam, it was decided that where there is a devise to a man and his heirs, with a limitation over after a definite failure of issue, the estate of the first devisee is not cut down to a fee tail, but that it is a fee simple defeasible on the contingency mentioned, and that the limitation over is good by way of executory devise. The Court speak of this as one of the “rules for the construction of wills, so well settled, and so long acted upon, as to have become maxims of the law that are not now to be questioned.” And Judge Doksey in his separate opinion, said: “ Eo case of authority has been referred to in the argument, and it is believed that [28] none can be found, where a devise in terms importing a fee, with a limitation over after a definite failure of issue of the first devisee, has been held to invest him with an estate tail only.” 7 Harris & Johnson, 244. And he also says: “The principle which converts a devise in fee with a limitation over after an indefinite failure of issue, into an estate tail, has no application to a devise in fee with a limitation over after a definite failure of issue.” Our conclusion therefore; is that Peter took a fee simple defeasible on the contingency of his dying without issue living at the time of. his death, with a valid executory devise to his mother. The contingency having occurred, Jane Griffith became entitled in fee simple, to the real estate devised to Peter.
The defendant’s prayer being in accordance with this view of the law ought to have been granted, and the plaintiffs’ prayers, holding the contrary, should have been rejected. We may refer to Mason vs. Johnson, 47 Md., where a testator devised land to his daughters, Mary and Lavinia, to be equally divided between them, and in case either of them should die without an heir of the body lawfully begotten, the share of the one so dying was devised to the survivor. It was held that the limitation over to take effect upon the dying without an heir of the body was valid under the Act of 1862.
We have been referred by the appellee to. Dawson vs. Small, 9 Law Reports, Chancery Appeals, 693. The English Statute (1 Victoria, chapter 26, section 29,) from which ours is taken, excludes from its operation a prior estate tail; and a preceding gift, which, without any implication arising from the words denoting a failure of issue would be a limitation of an estate tail. In the case in question, the Court decided that the first devisee took an estate tail, and that therefore the statute did not apply. The Act of 1862 does not contain any such words of éx[29] elusion. The other points of difference in the present case are sufficiently obvious.
(Decided 24th June, 1886.)
Judgment reversed,, and judgment for appellant under statement of facts.