Handy, J.,
delivered the opinion of the court.
This case depends upon the construction to be given to the will of David Bridgeforth deceased, made and probated in the State of Tennessee, where the testator resided at the time of his death. The clauses of the will necessary to be considered in determining the present case, are as follows:
“ Item 2d. It is my will that my executrix and executor give [332]*332out of my estate!'to those of my children herein named, to wit, Robert S. Bridgeforth, Thomas 0. Bridgeforth, Henry 0. Bridge-forth, Martha M. Bridgeforth, Minerva D. Bridgeforth, Elizabeth M. Bridgeforth, and Maria H. Bridgeforth, each and every one, when they become of age or marry, one horse, bridle, and saddle, one bed and furniture, and fifteen hundred dollars in money or property, so as to make them equal to James W. Bridgeforth, Mary E. A. Phillips, and John B. Bridgeforth.”
“Item 5th. It is my will, if any of my children named in the second item of this my last will and testament, shall die without heirs, then the property hereby devised to them is to be equally divided among the balance of my children named in the said second item, or the heirs of their bodies.”
In May, 1851, Minerva, one of the children of the testator named in the second item of the will, intermarried with the appellant, and died in June, 1854, leaving no children or issue, and leaving her husband surviving her. And afterwards this bill was filed against the appellant by the surviving brothers and sisters of Minerva, named in the second item of the will, and the children of a deceased brother and sister therein named, claiming the property bequeathed to Minerva, in virtue of the second and fifth items of the will.
It is insisted, in behalf of the appellant, that the limitation over in the fifth item of the will, under which the appellees claim, being upon an indefinite failure of issue, is too remote, and therefore void; by reason of which, an estate in fee remained to Minerva under the second item in the will. On the contrary, it is insisted on the part of the appellees, that the limitation, under which they claim, is valid, and that upon the death of Minerva without leaving lineal descendants, her share of the estate vested absolutely in her surviving brothers and sisters named in the second item, and the children then living of such of them as might be dead.
The will having been made in the State of Tennessee, where the testator resided and died, the construction of it, and the rights of the parties depending upon it, must be determined by the law upon the subject as it is. declared by the proper court of that State; and as the questions involved have heretofore received the consideration of the Supreme Court of that State, we have but little else to do [333]*333than to ascertain what have been the decisions of'ihht bouiVii\ tielWtion to them. .. j- v"
We will proceed to examine the terms of the fifth item'' of the will, and to ascertain their legal import according to the rules upon the subject which have been sanctioned in Tennessee. It is agreed that without the provisions of this part of the will, the appellant’s wife took an absolute estate in fee, in the property bequeathed to her in the second item of the will; and the question is, what control had the fifth item upon that estate?
The first point of inquiry is, what construction is to be given to the words “die without heirs,” in the fifth item, the contingency upon which the limitation therein expressed was to take effect ?
It has been frequently held by the Supreme Court of Tennessee that although the words “ dying without issue,” if they stood alone in the will, must be taken in their technical sense to mean an indefinite failure of issue, yet that any accompanying words or clause or circumstance in the will, indicating that the general words were used in the sense of dying without issue living at the time of the death, will control their meaning. Williams v. Turner, 10 Yerger, 289; Booker v. Booker, 5 Humph. 508; Bowman v. Tucker, 3 Humph. 650; Bramlet v. Bates, 1 Sneed, 572.
The accompanying words in this will are fully within this rule, and show clearly that the testator intended the limitation over,' to take effect immediately on the death of any one of the named legatees, leaving no lineal descendants. The provision is, that if any of his named children “ shall die without heirs, then the property hereby devised to them is to be equally divided among the balance of my children named,” &c. Here the contingency upon which the estate limited was to vest, “if any of his children named should die without heirs,” is distinctly stated; the time at which it is to take effect is plainly shown, “.then,” &c., at the death of any child; the persons to take, are clearly designated, “ the balance of his children named, or the heirs of their bodies.” It is most manifest that the testator did not intend by the words “ die without heirs,” heirs generally, for he immediately limits the estate over to “ the balance of his children” (which can only mean the surviving children), who would have been the heirs of the deceased child dying without issue, thereby showing that he was acting in contemplation [334]*334that the child would die leaving general heirs. And it is therefore clear that fay “ dying without heirs,” he meant dying without children or lineal descendants.
In several of the cases above cited, the words used in this will, or words of the same import, are held to control the force of the words “ dying without issue,” or “without heirs,” and to exclude the idea of an indefinite failure of issue. Thus a limitation to the surviving children upon the death ‘of one of the testator’s children, is held to be a definite restriction, within the time allowed by law. So the terms equally to be divided between the survivors, show that the division was intended to be made in the lifetime of the survivors, and of course the estate would clearly vest, not only within the period allowed by the rules of law, but immediately on the death of the child holding the life estate. Lewis v. Claiborne, Booker v. Booker.
So far then as the estate limited to, and claimed by, the surviving brothers and sisters of the appellant’s wife is concerned, we think it clear that by the law of Tennessee, it must be held to be a valid executory devise, which vested in the survivors immediately on the death of their sister leaving no children, as their absolute property, and subject to no further limitations.
Is the disposition then that the property should be equally divided among the balance of the children named, or “ the heirs of their bodies,” void, by reason of the remoteness of the persons to take under these last words ? And this depends upon the construction to be given to these words, “ or the heirs of their bodies which is to be determined by the sense in which the testator used the words, to be collected from all the accompanying clauses and circumstances rather than by their technical import. Loring v. Hunter, 8 Yerger, 29. The question is whether the testator intended the limitation over, of the estate of the deceased child, to take effect and vest absolutely in persons living at the time of the death of such child.
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Handy, J.,
delivered the opinion of the court.
This case depends upon the construction to be given to the will of David Bridgeforth deceased, made and probated in the State of Tennessee, where the testator resided at the time of his death. The clauses of the will necessary to be considered in determining the present case, are as follows:
“ Item 2d. It is my will that my executrix and executor give [332]*332out of my estate!'to those of my children herein named, to wit, Robert S. Bridgeforth, Thomas 0. Bridgeforth, Henry 0. Bridge-forth, Martha M. Bridgeforth, Minerva D. Bridgeforth, Elizabeth M. Bridgeforth, and Maria H. Bridgeforth, each and every one, when they become of age or marry, one horse, bridle, and saddle, one bed and furniture, and fifteen hundred dollars in money or property, so as to make them equal to James W. Bridgeforth, Mary E. A. Phillips, and John B. Bridgeforth.”
“Item 5th. It is my will, if any of my children named in the second item of this my last will and testament, shall die without heirs, then the property hereby devised to them is to be equally divided among the balance of my children named in the said second item, or the heirs of their bodies.”
In May, 1851, Minerva, one of the children of the testator named in the second item of the will, intermarried with the appellant, and died in June, 1854, leaving no children or issue, and leaving her husband surviving her. And afterwards this bill was filed against the appellant by the surviving brothers and sisters of Minerva, named in the second item of the will, and the children of a deceased brother and sister therein named, claiming the property bequeathed to Minerva, in virtue of the second and fifth items of the will.
It is insisted, in behalf of the appellant, that the limitation over in the fifth item of the will, under which the appellees claim, being upon an indefinite failure of issue, is too remote, and therefore void; by reason of which, an estate in fee remained to Minerva under the second item in the will. On the contrary, it is insisted on the part of the appellees, that the limitation, under which they claim, is valid, and that upon the death of Minerva without leaving lineal descendants, her share of the estate vested absolutely in her surviving brothers and sisters named in the second item, and the children then living of such of them as might be dead.
The will having been made in the State of Tennessee, where the testator resided and died, the construction of it, and the rights of the parties depending upon it, must be determined by the law upon the subject as it is. declared by the proper court of that State; and as the questions involved have heretofore received the consideration of the Supreme Court of that State, we have but little else to do [333]*333than to ascertain what have been the decisions of'ihht bouiVii\ tielWtion to them. .. j- v"
We will proceed to examine the terms of the fifth item'' of the will, and to ascertain their legal import according to the rules upon the subject which have been sanctioned in Tennessee. It is agreed that without the provisions of this part of the will, the appellant’s wife took an absolute estate in fee, in the property bequeathed to her in the second item of the will; and the question is, what control had the fifth item upon that estate?
The first point of inquiry is, what construction is to be given to the words “die without heirs,” in the fifth item, the contingency upon which the limitation therein expressed was to take effect ?
It has been frequently held by the Supreme Court of Tennessee that although the words “ dying without issue,” if they stood alone in the will, must be taken in their technical sense to mean an indefinite failure of issue, yet that any accompanying words or clause or circumstance in the will, indicating that the general words were used in the sense of dying without issue living at the time of the death, will control their meaning. Williams v. Turner, 10 Yerger, 289; Booker v. Booker, 5 Humph. 508; Bowman v. Tucker, 3 Humph. 650; Bramlet v. Bates, 1 Sneed, 572.
The accompanying words in this will are fully within this rule, and show clearly that the testator intended the limitation over,' to take effect immediately on the death of any one of the named legatees, leaving no lineal descendants. The provision is, that if any of his named children “ shall die without heirs, then the property hereby devised to them is to be equally divided among the balance of my children named,” &c. Here the contingency upon which the estate limited was to vest, “if any of his children named should die without heirs,” is distinctly stated; the time at which it is to take effect is plainly shown, “.then,” &c., at the death of any child; the persons to take, are clearly designated, “ the balance of his children named, or the heirs of their bodies.” It is most manifest that the testator did not intend by the words “ die without heirs,” heirs generally, for he immediately limits the estate over to “ the balance of his children” (which can only mean the surviving children), who would have been the heirs of the deceased child dying without issue, thereby showing that he was acting in contemplation [334]*334that the child would die leaving general heirs. And it is therefore clear that fay “ dying without heirs,” he meant dying without children or lineal descendants.
In several of the cases above cited, the words used in this will, or words of the same import, are held to control the force of the words “ dying without issue,” or “without heirs,” and to exclude the idea of an indefinite failure of issue. Thus a limitation to the surviving children upon the death ‘of one of the testator’s children, is held to be a definite restriction, within the time allowed by law. So the terms equally to be divided between the survivors, show that the division was intended to be made in the lifetime of the survivors, and of course the estate would clearly vest, not only within the period allowed by the rules of law, but immediately on the death of the child holding the life estate. Lewis v. Claiborne, Booker v. Booker.
So far then as the estate limited to, and claimed by, the surviving brothers and sisters of the appellant’s wife is concerned, we think it clear that by the law of Tennessee, it must be held to be a valid executory devise, which vested in the survivors immediately on the death of their sister leaving no children, as their absolute property, and subject to no further limitations.
Is the disposition then that the property should be equally divided among the balance of the children named, or “ the heirs of their bodies,” void, by reason of the remoteness of the persons to take under these last words ? And this depends upon the construction to be given to these words, “ or the heirs of their bodies which is to be determined by the sense in which the testator used the words, to be collected from all the accompanying clauses and circumstances rather than by their technical import. Loring v. Hunter, 8 Yerger, 29. The question is whether the testator intended the limitation over, of the estate of the deceased child, to take effect and vest absolutely in persons living at the time of the death of such child.
In the first place it appears to be clear that the testator intended that the estate limited over should vest, and the rights of those who were to take, become fixed, at the death of the child dying, and whose estate was the subject of the limitation. The language is, if any of the named children should “ die without heirs,” [335]*335“then” the share should be equally divided, &c. If there could be any doubt whether the word “ then” referred to time, or was intended'as a condition, the accompanying words directing an equal division among his surviving children, would show that it had reference to the time, as well as to the condition, upon which the division was to be made. The words “ heirs of their bodies,” could not therefore be held to extend to heirs indefinitely, and without reference to time ; and the intention of the testator, as manifested by the entire provision, could only be effectuated by interpreting them to mean “ children or lineal descendants” of the deceased surviving child named in the second item of the will. Thus, if Minerva died without lineal descendants, leaving all her brothers and sisters surviving her, they took her share of the estate absolutely, and the entire provision of the will, so far as her share is concerned, was satisfied. If afterwards each child died successively, leaving lineal descendants, his share vested absolutely in such descendants ; but if any one of them died leaving no such descendants, his share immediately vested in his surviving brothers or sisters, and the lineal descendants, then living, of any deceased brother or sister who may have previously died. And if all the brothers and sisters but one, died leaving children, upon the death of that last survivor, without lineal descendants, his share immediately vested absolutely, in the lineal descendants then living of his deceased brothers and sisters. Beyond that period the-limitation could not possibly extend; and as the share of the deceased child dying without children, was to be equally divided among the survivors absolutely, it is clear that the limitation was not intended to be postponed beyond the lives of the takers in being, at the death of any of the named children of the testator.
This view of the subject, we think, is fully supported by the decisions of the Supreme Court of Tennessee. The cases above cited hold, that the words “dying without issue,” may be explained by accompanying clauses, and restricted to mean, without issue living at the time of the death of the first taker. And such words, in their general and technical sense, certainly as strongly import an indefinite failure of issue, as the words under consideration. It is also held by that court, that the words, “heirs of their bodies,” when the context of the will justifies it, and shows such to be the testa[336]*336tor’s intention, must be taken to mean children. Evans v. Wells, 7 Humph. 568; Loring v. Hunter, 8 Yerger, 29; Hickman v. Quin, 6 Yerger, 96.
These words therefore, cannot under the law of Tennessee, be construed to import a limitation upon an indefinite failure of issue. Nor can they be held to create an estate tail, by cutting down the fee, bequeathed in the second item of the will, to an estate tail, and thereby vest the fee under the operation of the statute of Tennessee in the first taker. Lewis v. Claiborne, 5 Yerger, 368. Both these positions proceed upon the assumption, that the words must be taken in their technical import, and are not to be controlled by accompanying words, showing a different intention; which is in opposition to the decisions in Tennessee, and the entire weight of modern authorities.
Upon a consideration of the principles settled in Tennessee, touching the merits of this case, we cannot doubt but that the limitation over, under the fifth item of this will, is a valid executory devise, to which the appellees are entitled.
The decree is therefore affirmed, and the cause remanded, and the defendant below required to answer within sixty days.