Spencer, J.
The questions ih this dase are, whether the will of Matthys Blanshan, was well proved ; and whether Brachie, the wife of the lessor, alone took the share of Matthias, one of the children of the testator ?
It has been decided in this court, that a will stood upon the same footing as a deed, with respect to proof; and that an ancient will was subject to the same rule of evidence as an ancient deed." The will is dated the 21st of April, 1770; but the testator-did not die until 17S0 or 1781. A will does not take effect until the testator’s death; but it conveys only the lands of which he was seised when it was made, if the devise be ever so broad; and therefore, though not consummated until the death of the devisor, it relates back to the time of the devise. The reason of the law, in dispensing with the attendance of witnesses, to a deed of 30 years standing, and where possession has been held under it, is founded on the presumption, that they are dead, and the impossibility of proving its execution ; and though they are, in fact, alive, it is not necessary to produce them, for the rule is general in its operation. The reason of this rule applies to the time of the execution of a will, and net to the death [296]*296of the testator, for the same difficulty of proof exists its tjje one case ag jn the other. I think, therefore, that when wills and deeds have the same principle applied to ‘hem, as respects- their proof, it is following the analogy to- consider a will as an ancient one, when 30 years have elapsed Since its execution; and that it may be read in evidence, where the possession has been held according to its- provisions, for 27 years, as is the present case.
If this be correct, the production- of the will, the proof ; that all the children held under it, and had divided the-, estate according to its provisions, was sufficient proof,. prima facie, of its execution,
In the case of the Governor & Company of the Chelsea Water Works v. Cowper,
The devise is to the testator’s six children, and their heirs and assigns forever, as tenants in common. But if any one or more of the children should die before they arrive to full age, or without lawful issue, then his part is to- devolve upon, and be equally divided among the rest of the testator’s surviving children, and to their heirs and assigns forever. Matthew died without issue, after the death of four other of the devisees with issue, leaving Brachie the only sur- ' viving child of the testator...
[297]*297.Though the real and personal estate are both given in •the same manner, it would be violating the plain intention of the testator, to consider this a void limitation over, because the personal estate might admit of -other -cotsstructions 4 and since the case of Fosdick v. Cornell, it cannot be contended that the devise means an indefinite failure of issue, but only a failure of issue living at the death of the first taker. That case is an authority for saying that the devise here created a good limitation over, by way of executory devise, depending oft the contingency of any of the devisees dying, without leaving issue at the time of their death.
The grand-children cannot be considered as the surviving children, within .the intention of the testator. The plain language of the limitation would be violated, by .giving it such a construction, and indeed it was not pressed.
In my opinion, Brachie took the whole share of Matthew, on his dying without issue, and’'the plaintiff is entitled to judgment.
Kent, Ch. J.
The first question .arising in this case is, as to the admission of .the -will of Matthys Blanshan.
The acts -and declarations of the children might, perhaps, have been sufficient ground for presuming a will dividing the estate, according to the distribution -which actually took .place, had there not been positive proof behind of the existence of the will. Presumptions are only allowed when positive proof is wanting, -but here the lessors of the plaintiff admitted, that they had in their hands the will itself. They were then Abound ;to produce it, and support its genuineness by such proof as the nature of the case afforded. The ’¡highest and best evidence was the production of one or more of the subscribing' witnesses to the will, if they were living, and within the jurisdiction of the court. It was proved that one of the subscribing witnesses was alive, and resided in Dutchess county, and no reason was given why he was not produced. This omission was a fatal negligence on the part of the plaintiff; unless the admission of the will can b.e [298]*298supported on the footing of an ancient deed, which proves Here I think also, the lessors of the plaintiff have failed. It is not proper to compute the will from its date, but only from the time that possession took place under it, It is the accompanying possession alone which establishes the presumption of authenticity in an ancient deed. (Gilb. 89. Peake, 72, 73. Fleta, 426, 1 Inst. 6. 1 Rol. Rep. 132. Skinner, 239. 2 Mod. 323, 2 Term, 466. 1 Black. Rep. 532.) In one of the cases referred to, Lord Coke says, that possession must have gone all the time, according to the deed, before a feoffment of 40 years standing can be admitted, without proof of livery. Where possession fails, the presumption in its favour fails also. The length of the date will not help, the deed, for if that was sufficient, a knaye would have nothing to do bpt to forge a deed with a very ancient date, Thu death of the testator could not haye exceeded 26 or 27 years, before the commencement of the suit, and the time of the possession under the will fell short of the lowest period which has been required to establish an ancient deed. •
Perhaps 30 years may be deemed unreasonably long., since it reaches beyond the limitation now established in a writ of right. But it is to be observed, that the rule requiring 30 years, as the test of an ancient deed, is an. old and well settled rule of evidence ; and that it has been applied to a variety of instruments, besides conveyances of real estate, such as bonds, certificates of settlement, and the like. It may, therefore, well be questioned, whether greater inconveniences "would not be felt from a departure from that rqle, than from adhering to it, in .the present instance.
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Spencer, J.
The questions ih this dase are, whether the will of Matthys Blanshan, was well proved ; and whether Brachie, the wife of the lessor, alone took the share of Matthias, one of the children of the testator ?
It has been decided in this court, that a will stood upon the same footing as a deed, with respect to proof; and that an ancient will was subject to the same rule of evidence as an ancient deed." The will is dated the 21st of April, 1770; but the testator-did not die until 17S0 or 1781. A will does not take effect until the testator’s death; but it conveys only the lands of which he was seised when it was made, if the devise be ever so broad; and therefore, though not consummated until the death of the devisor, it relates back to the time of the devise. The reason of the law, in dispensing with the attendance of witnesses, to a deed of 30 years standing, and where possession has been held under it, is founded on the presumption, that they are dead, and the impossibility of proving its execution ; and though they are, in fact, alive, it is not necessary to produce them, for the rule is general in its operation. The reason of this rule applies to the time of the execution of a will, and net to the death [296]*296of the testator, for the same difficulty of proof exists its tjje one case ag jn the other. I think, therefore, that when wills and deeds have the same principle applied to ‘hem, as respects- their proof, it is following the analogy to- consider a will as an ancient one, when 30 years have elapsed Since its execution; and that it may be read in evidence, where the possession has been held according to its- provisions, for 27 years, as is the present case.
If this be correct, the production- of the will, the proof ; that all the children held under it, and had divided the-, estate according to its provisions, was sufficient proof,. prima facie, of its execution,
In the case of the Governor & Company of the Chelsea Water Works v. Cowper,
The devise is to the testator’s six children, and their heirs and assigns forever, as tenants in common. But if any one or more of the children should die before they arrive to full age, or without lawful issue, then his part is to- devolve upon, and be equally divided among the rest of the testator’s surviving children, and to their heirs and assigns forever. Matthew died without issue, after the death of four other of the devisees with issue, leaving Brachie the only sur- ' viving child of the testator...
[297]*297.Though the real and personal estate are both given in •the same manner, it would be violating the plain intention of the testator, to consider this a void limitation over, because the personal estate might admit of -other -cotsstructions 4 and since the case of Fosdick v. Cornell, it cannot be contended that the devise means an indefinite failure of issue, but only a failure of issue living at the death of the first taker. That case is an authority for saying that the devise here created a good limitation over, by way of executory devise, depending oft the contingency of any of the devisees dying, without leaving issue at the time of their death.
The grand-children cannot be considered as the surviving children, within .the intention of the testator. The plain language of the limitation would be violated, by .giving it such a construction, and indeed it was not pressed.
In my opinion, Brachie took the whole share of Matthew, on his dying without issue, and’'the plaintiff is entitled to judgment.
Kent, Ch. J.
The first question .arising in this case is, as to the admission of .the -will of Matthys Blanshan.
The acts -and declarations of the children might, perhaps, have been sufficient ground for presuming a will dividing the estate, according to the distribution -which actually took .place, had there not been positive proof behind of the existence of the will. Presumptions are only allowed when positive proof is wanting, -but here the lessors of the plaintiff admitted, that they had in their hands the will itself. They were then Abound ;to produce it, and support its genuineness by such proof as the nature of the case afforded. The ’¡highest and best evidence was the production of one or more of the subscribing' witnesses to the will, if they were living, and within the jurisdiction of the court. It was proved that one of the subscribing witnesses was alive, and resided in Dutchess county, and no reason was given why he was not produced. This omission was a fatal negligence on the part of the plaintiff; unless the admission of the will can b.e [298]*298supported on the footing of an ancient deed, which proves Here I think also, the lessors of the plaintiff have failed. It is not proper to compute the will from its date, but only from the time that possession took place under it, It is the accompanying possession alone which establishes the presumption of authenticity in an ancient deed. (Gilb. 89. Peake, 72, 73. Fleta, 426, 1 Inst. 6. 1 Rol. Rep. 132. Skinner, 239. 2 Mod. 323, 2 Term, 466. 1 Black. Rep. 532.) In one of the cases referred to, Lord Coke says, that possession must have gone all the time, according to the deed, before a feoffment of 40 years standing can be admitted, without proof of livery. Where possession fails, the presumption in its favour fails also. The length of the date will not help, the deed, for if that was sufficient, a knaye would have nothing to do bpt to forge a deed with a very ancient date, Thu death of the testator could not haye exceeded 26 or 27 years, before the commencement of the suit, and the time of the possession under the will fell short of the lowest period which has been required to establish an ancient deed. •
Perhaps 30 years may be deemed unreasonably long., since it reaches beyond the limitation now established in a writ of right. But it is to be observed, that the rule requiring 30 years, as the test of an ancient deed, is an. old and well settled rule of evidence ; and that it has been applied to a variety of instruments, besides conveyances of real estate, such as bonds, certificates of settlement, and the like. It may, therefore, well be questioned, whether greater inconveniences "would not be felt from a departure from that rqle, than from adhering to it, in .the present instance.
On this ground, a judgpentof nonsuit ought to be directed, according to the stipulation in the case, But as we have the will before qs, and the counsel have argued on the merits of the controversy, arising on the construction of the will, it may, probably, be convenient to the parties, [299]*299and save further litigation, to have the opinion of the court on the will.
The will devises the real estate to the six children, in fee, of whom Brachie, one of the lessors, was the youngest, and the only survivor; it then adds the following vise over: “ But if any one or more of my said children should die before they arrive at full age, or without lawful issue, that then his or her share should devolve upon, and be equally divided among the rest of my surviving children.” This devise over is good by way of executory devise, and not too remote ; for the construction is welf settled, that the words “ without lawful issue” mean issue living at the time of his death. The case of Fosdick v. Cornell, (1 Johns. 440.) was on a devise to four sons and 3 daughter, and that if any of them should die, without heirs male of their bodies, their share should go to the survivors. The court reviewed the leading authorities, and held that the devise over was a good executory devise, and that the true construction was, a devise over, to take effect on failure of male issue, during the life of the first taker. The case of Hanbury v. Cockerill, (l Rol. Abr. 835.) is an ancient case, quite analogous, in favour of the validity of this executory devise ; the devise there was to the two sons in fee, with a proviso, that if either died before they should be married, or before they should attain the age of 21 years, and without issue of their bodies, then his share should go to the survivor. In the two cases of Porter v. Bradley, and Roe v. Jeffery, (3 Term, 143. 7 Term, 589.) Lord Kenyon supported this established construction, in a very forcible manner ; and the present case cannot be distinguished, in principle, from those, in which this rule of law is settled beyond controversy. The lessors of the plaintiff would,' therefore, be entitled to recover on the merits of the case, and it is with regret that I am obliged to turn them round to a new action; but according to the stipulation in the case, there must be a j'udgment of nonsuit.
[300]*300Van Ness, J. was of the same opinion.
Thompson, J. and Yates', J. not having heard the argument in the cause, .gave no opinion.
Judgment of nonsuit.
1 Esp. Cas. 275.