M’Kean, O. J.
Not having heard the arguments of counsel on this question, my decision must be founded on precedents, and the law, as it seems to me to be settled.
The manifest intention of the testator, collected from the whole will, if not contrary to law, is the polar star to guide the construction of wills, and must prevail.
Courts are bound by the uniform current of precedents. For deviating from what has been the course for a long series of time, though originally founded on fallacious grounds, -would be productive of greater injury to society, from the uncertainty it introduces, than pursuing the ancient course. It is not of so much consequence what the rules of property are, as that they should be settled and known.
In this ease, the intention of the testator seems plainly to have been, that his son Daniel, among other things, should have the ten acres in dispute, and his children after him. As David, the lessor of the plaintiff, is his eldest son, he meant it for him. The devise in the first clause in the will, is to “his son Daniel, his heirs and assigns for ever;” and he was to pay his sister 1002. &e., which primafaeie carries a fee simple. But the latter clause “if either of my children die without issue lawfully begotten,” &c., denotes, [406]*406that by the wordlieirs ” in the preceding clause, the testator meant lineal and not collateral heirs; which if necessary, is corroborated by the devise over to the brothers.
It appears therefore, clear to me, that Daniel Haines, by the will of his father, took an estate tail, and that judgment should be given for the plaintiff. ■ The cases in support of this opinion are numerous. I will cite a few of them. Cro. Jac. 695. Pollex. 487. 7 Co. 4. 3 Lev. 70. 2 Fearne. 203. Roe v. Scott et al. 3 Term. Rep. 143. Carth. 348. 5 Mod. 266.
Shippen, J.
In considering this case, it was with a sincere wish, I might be convinced that the law should be found in favor of the defendant, he appearing to have come in under a fair purchaser, and to have made some improvements on the land. But considerations of this kind must not induce us to unsettle the established rules of law, lest we set all titles to r’eal property afloat.
The testator devises several distinct pieces of land to his several children, and annexes to every devise, the fee simple words, “to them, •their heirs and assigns for ever.” In a subsequent clause, he directs, that “ if either of his children should die without issue lawfully begotten, then each and every of their respective shares should be equally divided to and amongst the survivors.”
Although it is not contended, on the part of the defendant, as indeed it could not be with any prospect of success, that the word “heirs” may not be restricted and controlled by subsequent words, to mean “heirs of the body, ” yet it is urged, that if in this case from the subsequent words, it can be collected to be the intention of the testator, that the devise over, after the words dying without issue, should only take place, in case such devisee be living at the time of the death of the first devisee, then it should be construed an executory devise, and not a contingent remainder. The case relied on in support of this doctrine, is that of Bells v. Brown, in Oro. Jac. 590, where the devise was to his son Thomas and his heirs forever, and if he die without issue “ living his brother William,” then that his brother William should have the land; in that case, it was held that Thomas took a fee, the clause of his dying without issue not being indefinite, but with the contingency of liis dying without issue “ living William.”
It is contended, that although in the principal case, there are [407]*407no express words to restrict tlie devise, to tlie dying without issue in the life-time of the second devisee, yet there are words which equally manifest the intention of tlie testator to be such. This construction is drawn from the words “ equally to be divided amongst the survivors.” The word “ survivors,” in the plural number, it is said evidently shows the meaning of the testator to be, that the devise over, should not take place unless more than one of liis other children should be living, at the time of the death of Daniel without issue, and is equal to his saying, “ if Daniel should die without issue, living Samuel, Isaac, Jacob and Hannah, his other children, or any two of them,” — which would bring it within the ease of Pells v. Brown.
The intention of the testator will doubtless have a considerable effect in the construction of all wills; but to prevail against the established rules of law, that intention must be manifest, and not be drawn only from some remote possible inconveniences, which may attend the adherence to those rules, which probably the testator might not have attended to.
It is said by Lord Hale, in the case of King v. Mulling, that a devise to a man and if lie dies without issue, then over, is always construed to make an intail.
In a limitation upon a dying without issue, there is an established distinction between a devise of land and personal estate; in the latter case, the words are taken in the vulgar sense, which his dying witnout issue at the time of his death. But in a devise of real estate, they are constantly taken in the legal sense; namely, whenever there is general failure of issue.
There are not wanting cases in the books, of devises, with limitations to survivors, after the words dying without issue. In the case of Wilson v. Dyson, in Sir Tho. Raym. 426, where the devise was to his third son and his heirs forever, but if he die without issue, the remainder of his estate to bo divided among liis sons and daughters, and the survivors of them, it was adjudged an estate tail. In Chadock v. Cowly, Cro. Jac. 695, the words, I will that the survivors of them shall be heir to the others, if either of them die without issue, were adjudged an estate tail. In Roe v. Scott et al. 2 Fearne. 208, the words were, “if either of my three sons should depart this life without issue of his or their-bodies,” then the estate or estates of such sons shall go to the survivors or suvivor, and it was adjudged an estate tail.
The distinction made in the present case, founded upon the word “survivors” in the plural number, is, I fear, too refined. As to the intention of the testator, it affords no more room for [408]*408the construction contended for, than if it had been in the singular number “ survivor.” The remote consequences may be different; but most probably, the testator had them not in contemplation.
It is besides, a settled rule, that a devise shall never be construed an executory devise, when it may be a contingent remainder. I am on the whole of opinion, that Daniel Haines took only an estate tail in the premises, and that therefore judgment shall be given for the plaintiff.
Teates, J.
This case is a hard one on the defendant, who has erected a stone barn on the premises in question, his father conceiving that he had purchased an estate in fee simple from the devisee. But our judgments should not be influenced thereby, if the law shall be found against him. The greatest uncertainty and inconveniences would ensue, if we were not bound to follow former resolutions in cases of the same nature, qum sunt tradita et relicta.
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M’Kean, O. J.
Not having heard the arguments of counsel on this question, my decision must be founded on precedents, and the law, as it seems to me to be settled.
The manifest intention of the testator, collected from the whole will, if not contrary to law, is the polar star to guide the construction of wills, and must prevail.
Courts are bound by the uniform current of precedents. For deviating from what has been the course for a long series of time, though originally founded on fallacious grounds, -would be productive of greater injury to society, from the uncertainty it introduces, than pursuing the ancient course. It is not of so much consequence what the rules of property are, as that they should be settled and known.
In this ease, the intention of the testator seems plainly to have been, that his son Daniel, among other things, should have the ten acres in dispute, and his children after him. As David, the lessor of the plaintiff, is his eldest son, he meant it for him. The devise in the first clause in the will, is to “his son Daniel, his heirs and assigns for ever;” and he was to pay his sister 1002. &e., which primafaeie carries a fee simple. But the latter clause “if either of my children die without issue lawfully begotten,” &c., denotes, [406]*406that by the wordlieirs ” in the preceding clause, the testator meant lineal and not collateral heirs; which if necessary, is corroborated by the devise over to the brothers.
It appears therefore, clear to me, that Daniel Haines, by the will of his father, took an estate tail, and that judgment should be given for the plaintiff. ■ The cases in support of this opinion are numerous. I will cite a few of them. Cro. Jac. 695. Pollex. 487. 7 Co. 4. 3 Lev. 70. 2 Fearne. 203. Roe v. Scott et al. 3 Term. Rep. 143. Carth. 348. 5 Mod. 266.
Shippen, J.
In considering this case, it was with a sincere wish, I might be convinced that the law should be found in favor of the defendant, he appearing to have come in under a fair purchaser, and to have made some improvements on the land. But considerations of this kind must not induce us to unsettle the established rules of law, lest we set all titles to r’eal property afloat.
The testator devises several distinct pieces of land to his several children, and annexes to every devise, the fee simple words, “to them, •their heirs and assigns for ever.” In a subsequent clause, he directs, that “ if either of his children should die without issue lawfully begotten, then each and every of their respective shares should be equally divided to and amongst the survivors.”
Although it is not contended, on the part of the defendant, as indeed it could not be with any prospect of success, that the word “heirs” may not be restricted and controlled by subsequent words, to mean “heirs of the body, ” yet it is urged, that if in this case from the subsequent words, it can be collected to be the intention of the testator, that the devise over, after the words dying without issue, should only take place, in case such devisee be living at the time of the death of the first devisee, then it should be construed an executory devise, and not a contingent remainder. The case relied on in support of this doctrine, is that of Bells v. Brown, in Oro. Jac. 590, where the devise was to his son Thomas and his heirs forever, and if he die without issue “ living his brother William,” then that his brother William should have the land; in that case, it was held that Thomas took a fee, the clause of his dying without issue not being indefinite, but with the contingency of liis dying without issue “ living William.”
It is contended, that although in the principal case, there are [407]*407no express words to restrict tlie devise, to tlie dying without issue in the life-time of the second devisee, yet there are words which equally manifest the intention of tlie testator to be such. This construction is drawn from the words “ equally to be divided amongst the survivors.” The word “ survivors,” in the plural number, it is said evidently shows the meaning of the testator to be, that the devise over, should not take place unless more than one of liis other children should be living, at the time of the death of Daniel without issue, and is equal to his saying, “ if Daniel should die without issue, living Samuel, Isaac, Jacob and Hannah, his other children, or any two of them,” — which would bring it within the ease of Pells v. Brown.
The intention of the testator will doubtless have a considerable effect in the construction of all wills; but to prevail against the established rules of law, that intention must be manifest, and not be drawn only from some remote possible inconveniences, which may attend the adherence to those rules, which probably the testator might not have attended to.
It is said by Lord Hale, in the case of King v. Mulling, that a devise to a man and if lie dies without issue, then over, is always construed to make an intail.
In a limitation upon a dying without issue, there is an established distinction between a devise of land and personal estate; in the latter case, the words are taken in the vulgar sense, which his dying witnout issue at the time of his death. But in a devise of real estate, they are constantly taken in the legal sense; namely, whenever there is general failure of issue.
There are not wanting cases in the books, of devises, with limitations to survivors, after the words dying without issue. In the case of Wilson v. Dyson, in Sir Tho. Raym. 426, where the devise was to his third son and his heirs forever, but if he die without issue, the remainder of his estate to bo divided among liis sons and daughters, and the survivors of them, it was adjudged an estate tail. In Chadock v. Cowly, Cro. Jac. 695, the words, I will that the survivors of them shall be heir to the others, if either of them die without issue, were adjudged an estate tail. In Roe v. Scott et al. 2 Fearne. 208, the words were, “if either of my three sons should depart this life without issue of his or their-bodies,” then the estate or estates of such sons shall go to the survivors or suvivor, and it was adjudged an estate tail.
The distinction made in the present case, founded upon the word “survivors” in the plural number, is, I fear, too refined. As to the intention of the testator, it affords no more room for [408]*408the construction contended for, than if it had been in the singular number “ survivor.” The remote consequences may be different; but most probably, the testator had them not in contemplation.
It is besides, a settled rule, that a devise shall never be construed an executory devise, when it may be a contingent remainder. I am on the whole of opinion, that Daniel Haines took only an estate tail in the premises, and that therefore judgment shall be given for the plaintiff.
Teates, J.
This case is a hard one on the defendant, who has erected a stone barn on the premises in question, his father conceiving that he had purchased an estate in fee simple from the devisee. But our judgments should not be influenced thereby, if the law shall be found against him. The greatest uncertainty and inconveniences would ensue, if we were not bound to follow former resolutions in cases of the same nature, qum sunt tradita et relicta.
Numerous authorities may be found in the books, that an estate may arise, be enlarged, controlled and even be destroyed by implication, in the construction of wills. 2 Fonbla. 58. Thus a devise to A, and if he die without issue, remainder over to B, passes an estate tail to A. For though thejdevise to A generally, would pass only an estate for life of itself, yet as no benefit is given to B while there is any issue of A, the consequence would be, that as no interest springs to B, and no express estate is given to the issue of A after the death of A, the intermediate interest would be undisposed of, unless A were considered as taking for the benefit of his issue, as well as of himself. And as the words are capable of such amplification, the court naturally implies an intention in the testator that A should take in such a manner, that the property might be transmissible through him to his issue : and he is thei’efore considered to take an estate tail, which will descend to his issue. 2 Bro. Ch. Ca, 578. 1 Wms. 605, 758. 9 Co. 127, b.
If in the construction of wills, “ every string ought to give its sound,” in the language of Judge Doderidge (3 B&lst. 303) it necessarily follows, that to effectuate the general intention of Jacob Haines 'in the present case, the word “ heirs ” in the devise to his son Daniel, must be construed “'heirs of the body;” because otherwise, the remainder limited over to the surviving children could not take effect.
It is true, that this devise is “ to him, his heirs and assigns forever.” But Lord Kenyon observed, in Porter v. Bradley, 8 Term Rep. 145, that “it is clear, those words may be restrained by subsequent ones, so as to carry only an "estate tail.” [409]*409There “ lands were devised to A, his heirs and assigns forever, and if he die leaving no issue behind him,” then over, the limitation over was held good by way of executory devise. The words “ leaving’ no issue behind him, ” were held to make a material difference, and to bring it within the case of Pells v. Brown, in Cro. Jac. 590; and in 2d Foarno (by Powel) 209, it is remarked, that the resolution was grounded on the peculiar penning of that part of the wili, on which the question arose. And it is there further said, that the words <c assigns for ever, ” are strongly indicative of an intention that the devisee should take unassignable estate to him and his heirs; but not of themselves sufficient to take the case out of the principle or rule of construction, that a limitation shall never operate as an executor) devise, where it may take effect as a remainder. Dong. 729. Nothing can be collected from the whole of this will, which clearly shows, that the words “ if either of the children should die without issue lawfully begotten, ” were'to bo restricted “ to dying without issue at the time of such child’s death.” In cases “ of dying without issue, ” upon a limitation over of lands, there is no authority to prove, that such words have been confined to a dying without issue at the time of the death. There is a marked distinction between a devise of lands and personal estate. In tbe latter case, the words are taken in their vulgar sense; but in the former, in their legal sense. Cowp. 411. Doug. 486. This difference has been recognized in many cases. 1 Wins. 199, 433, 664. Prec. Cha. 328. 2 Ves. 125, 606, 683. Bnt in cases of inheritance without a single exception, if lands are devised to one, or to one and his heirs, and if he die without issue remainder over, the devisee takes an estate tail by implication which shall go to his issue, and they shall take in course of descent, to all succeeding generations. Gilb. Equ. Rep. 149. Doug. 485, 486. Cowp. 411. 3 Term Pep. 494.
Tlie argument of the defendant’s counsel, drawn from the use of of the word “ survivors ” in this will, seems fully answered by the cases in Cro. Jac. 415, 695. T. Ray, 426, and 2 Leon. 129. When a fee is devised, and a secondary fee limited thereon, the secondary fee must be expressly limited to take effect within the given periods of executory devises, otherwise it will be deemed a perpetuity. Sand, on Uses, 193, and the cases there cited. In Beauclerk v. Dormer, 2 Atky. 308, K by his will says, “ I make D my sole heir and executrix, and if slie dies without issue, then to go to G.” Lord Hardwieke held that the limitation over could not be confined to D’s dying without issue, living at the time of her decease. And the authority of this case is recognized by Ld. Thurlow in 1 Bro, Cha. Ca. 190, Biggs v. Bensley.
[410]*410I am therefore of opinion, that Daniel ITaines was only entitled to an estate in fee tail in the ten acres of land in question, under his father’s will.
Judgment for the plaintiff.
TMs and the succeeding opinion, though prepared, were not publicly delivered, for want of time.