Upon this day the judges delivered their opinions.
Tilghman C. J.
The question in this case arises on the will of John Bleakley the elder, and is to be resolved by ascertaining what the contingency was, on which the testator authorized his executor to sell his real estate, and divide the proceeds among his brothers and sisters. If that contingency has taken effect, the plaintiff will be entitled to recover, because there is no doubt, that the power to sell is extended to the executors of the original executor; nor is it in its nature more remote than the law permits, being to take effect on the expiration of a life then in existence. But if the contingency has not taken effect, the plaintiff has no title.
The objects of the testator’s bounty appear to have been his son, his brothers and sisters, and his cousin Archibald Young, whom he made his executor. In the first part of his will he gives a small legacy to each of his brothers and sisters; and to Archibald Young an annuity of thirty pounds, Pennsylvania currency, to be paid out of the profits of his real estate “ during “ the joint lives of the said Archibald Young, and his son John “ Bleakley, or his heirs lawfully begotten; but in case of the de£t cease of his said son without issue lawfully begotten as afore- “ said, in the lifetime of the said Archibald Young, then the ££ annuity was to cease, and in lieu of it, Archibald Young was “ to have 400/. sterling, payable out of the proceeds of the tes- “ tator’s real estate, when the same was sold and disposed of as ££ was afterwards in the said will directed.” If we pause here, we find the testator’s intention very clearly expressed, that his real estate was to be sold, in case his son died without issue during the life of Archibald Young; or in case he left issue, and that issue should die without issue during the life of Archibald Young. I am by no means satisfied that this intention was not preserved throughout the will, although in a subsequent part, [558]*558which I will next consider, there are expressions not strictly reconcilable with it; and which afford strong ground for arguing that the testator designed that his real estate should be sold, in case his son should die without leaving issue living at the time of his death, without regard to the life of Archibald Young. His words are as follow. “ All the rest and residue of my estate, “ real and personal, I give, devise, and bequeath to my son “ John Bleakley, and his heirs lawfully begotten; and in case of “ the decease of my said son without such issue, then I do “ direct and order my said cousin, Archibald Young, his execu- “ tors or administrators, to sell and dispose of my real estate, “ within two years after the decease of my said son, to the best “ advantage. And I do hereby give and bequeath the proceeds “ thereof to my said brothers, David and William Bleakley, and “ my said sisters, Margaret Harkness and Sarah Boyle, and “ their heirs for ever, or such of them as shall be living at the u decease of my said son, to be divided between them in equal pro- “ portions, share and share alike, after deducting the sum of “ 400/. sterling, herein before given to the said Archibald “ Young, immediately on the decease of my said son without “ issue, in lieu of the annuity above mentioned.” Here is, to be sure, an express power to sell, given to the executors of Archibald Young; but that power might be necessary at all events, because Archibald Young might survive the testator’s son, and die within the two years, during which the sale was to be made, without having completed the sale. But as my opinion on this case will be founded on another point, I decline giving any opinion, whether, on the whole of the will, the power to sell was intended to be restricted to the event of John Bleakley, the son, dying without issue in the life of Archibald Young. I do not consider this point as by any means clear; and if the case rested solely upon it, I should feel myself inclined to give as much weight to the direction to the executors of Archibald Young to sell, as it would reasonably bear; because it would tend to favour the brothers and. sisters of the testator, who, next to his son, were the objects of his affection.
Supposing then, that the authority to sell was to arise on the event of the son’s dying, without issue living at the time of his death, it remains to be considered for what purpose the sale was to be made. The literal expression is, that the proceeds shall be equally divided between the testator’s brothers and sisters and [559]*559their heirs, or such of them as should be living at the time of his son’s death. But none of them were living at that time. Therefore, to follow the literal expression, there were no persons in existence, in whose favour the power to sell could be exercised. It appears to me, that the literal interpretation accords with the spirit and intent of the testator. For, although it might be reasonable to restrain the son from making any disposition of the real estate, to the prejudice of the testator’s brothers and sisters, who were naturally dear to him, yet it would be hard to impose such a restriction merely to secure the estate to nephews and nieces living in a remote country.
It is contended by the counsel for the plaintiff, that the word heirs may be taken as a word of purchase; and that, by virtue of it, the heirs of the deceased brothers and sisters may take. There is no doubt but the word heirs may be so construed, when it appears that the testator used it with a view of designating' a particular person. But is it so used in this will? I think not. It is intended to have the effect of giving the property completely to the brothers and sisters, who were to take. It is not an accurate expression; because it is applied to personal property, to money, which does not go to heirs but to executors. However, it is very commonly used in wills, to denote an intent that the legatee shall have the absolute property in money. To construe the word heirs otherwise than as a word of limitation in this will, would introduce a confusion never intended by the testator. It was his intent that the persons who took, should take in equal portions. Now suppose that one of the brothers had died, leaving several children; and the others had been all living at the death of John Bleakley, the son. Would each child of the deceased brother have taken an equal share with the surviving brothers and sisters? This is so monstrous, that the plaintiff’s counsel do not contend for it. They say, that all the children of the deceased should take among them the share that their parent would have been entitled to, if living. This certainly would be very equitable; but where do we find it in the will? It is making the will, not construing it. I am satisfied that the testator, when he gave the direction to sell, did not look beyond the lives of his brothers and sisters; and if this construction was not sufficiently clear from the parts of the will which I have mentioned, it is confirmed by a subsequent clause, in which he directs, that, in case his son [560]*560dies without issue, before the age of twenty-one years, the remainder of his personal
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Upon this day the judges delivered their opinions.
Tilghman C. J.
The question in this case arises on the will of John Bleakley the elder, and is to be resolved by ascertaining what the contingency was, on which the testator authorized his executor to sell his real estate, and divide the proceeds among his brothers and sisters. If that contingency has taken effect, the plaintiff will be entitled to recover, because there is no doubt, that the power to sell is extended to the executors of the original executor; nor is it in its nature more remote than the law permits, being to take effect on the expiration of a life then in existence. But if the contingency has not taken effect, the plaintiff has no title.
The objects of the testator’s bounty appear to have been his son, his brothers and sisters, and his cousin Archibald Young, whom he made his executor. In the first part of his will he gives a small legacy to each of his brothers and sisters; and to Archibald Young an annuity of thirty pounds, Pennsylvania currency, to be paid out of the profits of his real estate “ during “ the joint lives of the said Archibald Young, and his son John “ Bleakley, or his heirs lawfully begotten; but in case of the de£t cease of his said son without issue lawfully begotten as afore- “ said, in the lifetime of the said Archibald Young, then the ££ annuity was to cease, and in lieu of it, Archibald Young was “ to have 400/. sterling, payable out of the proceeds of the tes- “ tator’s real estate, when the same was sold and disposed of as ££ was afterwards in the said will directed.” If we pause here, we find the testator’s intention very clearly expressed, that his real estate was to be sold, in case his son died without issue during the life of Archibald Young; or in case he left issue, and that issue should die without issue during the life of Archibald Young. I am by no means satisfied that this intention was not preserved throughout the will, although in a subsequent part, [558]*558which I will next consider, there are expressions not strictly reconcilable with it; and which afford strong ground for arguing that the testator designed that his real estate should be sold, in case his son should die without leaving issue living at the time of his death, without regard to the life of Archibald Young. His words are as follow. “ All the rest and residue of my estate, “ real and personal, I give, devise, and bequeath to my son “ John Bleakley, and his heirs lawfully begotten; and in case of “ the decease of my said son without such issue, then I do “ direct and order my said cousin, Archibald Young, his execu- “ tors or administrators, to sell and dispose of my real estate, “ within two years after the decease of my said son, to the best “ advantage. And I do hereby give and bequeath the proceeds “ thereof to my said brothers, David and William Bleakley, and “ my said sisters, Margaret Harkness and Sarah Boyle, and “ their heirs for ever, or such of them as shall be living at the u decease of my said son, to be divided between them in equal pro- “ portions, share and share alike, after deducting the sum of “ 400/. sterling, herein before given to the said Archibald “ Young, immediately on the decease of my said son without “ issue, in lieu of the annuity above mentioned.” Here is, to be sure, an express power to sell, given to the executors of Archibald Young; but that power might be necessary at all events, because Archibald Young might survive the testator’s son, and die within the two years, during which the sale was to be made, without having completed the sale. But as my opinion on this case will be founded on another point, I decline giving any opinion, whether, on the whole of the will, the power to sell was intended to be restricted to the event of John Bleakley, the son, dying without issue in the life of Archibald Young. I do not consider this point as by any means clear; and if the case rested solely upon it, I should feel myself inclined to give as much weight to the direction to the executors of Archibald Young to sell, as it would reasonably bear; because it would tend to favour the brothers and. sisters of the testator, who, next to his son, were the objects of his affection.
Supposing then, that the authority to sell was to arise on the event of the son’s dying, without issue living at the time of his death, it remains to be considered for what purpose the sale was to be made. The literal expression is, that the proceeds shall be equally divided between the testator’s brothers and sisters and [559]*559their heirs, or such of them as should be living at the time of his son’s death. But none of them were living at that time. Therefore, to follow the literal expression, there were no persons in existence, in whose favour the power to sell could be exercised. It appears to me, that the literal interpretation accords with the spirit and intent of the testator. For, although it might be reasonable to restrain the son from making any disposition of the real estate, to the prejudice of the testator’s brothers and sisters, who were naturally dear to him, yet it would be hard to impose such a restriction merely to secure the estate to nephews and nieces living in a remote country.
It is contended by the counsel for the plaintiff, that the word heirs may be taken as a word of purchase; and that, by virtue of it, the heirs of the deceased brothers and sisters may take. There is no doubt but the word heirs may be so construed, when it appears that the testator used it with a view of designating' a particular person. But is it so used in this will? I think not. It is intended to have the effect of giving the property completely to the brothers and sisters, who were to take. It is not an accurate expression; because it is applied to personal property, to money, which does not go to heirs but to executors. However, it is very commonly used in wills, to denote an intent that the legatee shall have the absolute property in money. To construe the word heirs otherwise than as a word of limitation in this will, would introduce a confusion never intended by the testator. It was his intent that the persons who took, should take in equal portions. Now suppose that one of the brothers had died, leaving several children; and the others had been all living at the death of John Bleakley, the son. Would each child of the deceased brother have taken an equal share with the surviving brothers and sisters? This is so monstrous, that the plaintiff’s counsel do not contend for it. They say, that all the children of the deceased should take among them the share that their parent would have been entitled to, if living. This certainly would be very equitable; but where do we find it in the will? It is making the will, not construing it. I am satisfied that the testator, when he gave the direction to sell, did not look beyond the lives of his brothers and sisters; and if this construction was not sufficiently clear from the parts of the will which I have mentioned, it is confirmed by a subsequent clause, in which he directs, that, in case his son [560]*560dies without issue, before the age of twenty-one years, the remainder of his personal estate (intended to be at his son’s disposal if he attained the age of twenty-one) shall go to, and be divided between, his brothers and sisters, with the proceeds of his real estate, as before directed.
The plaintiff’s counsel made another point, which it is necessary to mention; that is, that it was the intent of the testator that his real estate should be sold at all events, in case of his son’s death without issue. But to this I cannot agree. It is true, that to sell is one thing, and to dispose of the proceeds of the sale is another; but to what purpose is the sale to be made, if there is no person in existence to receive the proceeds? The cause of the sale ceasing, the authority to sell must cease likewise.
Upon the whole of this case, my opinion is, that the contingency, on which the power to sell was to arise, has never taken effect, and therefore the sale under which the plaintiff claims, was without authority. Of consequence he has no title, and judgment must be entered for the defendant.
Yeates J.
delivered his opinion at large in concurrence with the Chief Justice, upon all the points. On the first point however, whether the power to sell did not depend upon the death of the son in the life time of Archibald Young, his Hon-our said, that as the claim to the 400/. was made in positive terms to depend upon the son’s dying without issue in the lifetime of Young, and as the 400/. was to be paid before any dividend of the proceeds of sale, in his mind it irresistibly followed, that as the son survived Young, the legacy did not arise, and the lands could not be sold.
Br.ackenr.idge J.
In this case the annuity payable to Archibald Young, “ during the joint lives of him the said Archi- “ bald Young, and the son John Bleakley, or his heirs lawfully “begotten,” ceases on the death of Archibald Young, who died before John Bleakley the younger. But the 400/. is a bequest to depend on the son JohnBleakleifs dying without issue. For it is stated to be to him “ the said Archibald Young, and his assigns;” and executors and administrators are assigns in law. It is further stated to be “ to nfiy said cousin Archibald Young, not only for “ the natural affection I have and bear to him as a relation, [561]*561“ but also as a full compensation for the services he has already “ rendered me, and in lieu of his commission for the trouble “ he may hereafter have in the execution of this my will;” and it was in the contemplation of the testator, that Archibald Young might not himselflive to execute the will, siiice he continues the direction and order of executing the will, to the executors and administrators of Archibald Young. There was therefore the same reason that this 400/. should come to the representatives of Archibald Young, his executors or administrators rendering the service, as there was originally that it should come to himself. And though “ in lieu of his commission for the trouble “ he may hereafter have in the execution of the will” is stated as an inducement of the bequest or legacy, yet “ natural affec- “ tion and a compensation for services he has already render-4£ ed,” is also an inducement; and there would be an object of sale for the raising this legacy if no other did exist. For though the legacy of 400/. is stated to be given in lieu of the annuity, yet it is not a commutation, but a substitution; and the termination of the annuity is marked as the commencement of this other provision: that is, it is as much payable as if no annuity had preceded it; and although it is “ in case of the decease of “ my said son without issue lawfully begotten in the lifetime ££ of Archibald Young,” that the annuity is to cease, yet the power is continued to the executors and administrators for the purpose of the sale. Archibald Young dying before sale, yet sale can be made by his executors or administrators, the 400/. will be payable, and the dying before the son can have no effect but as it limits the annuity. This object therefore of the sale of the property, and the distribution arising on the sale, did not cease by the death of Archibald Young before the death of John Bleakley the son.
But taking it, that the contingency of John Bleakley the son dying in the lifetime of Archibald Young not happening, the bequest of 400/. is not claimable by his representatives, yet the main object of the sale in case of Bleakley the son dying without issue, was for the use of the devise over of the proceeds of the estate: “ I do hereby give and bequeath “ the proceeds thereof;” and there was a reason for a devise of the proceeds rather than of an undivided interest in the realty itself, because it superseded the expense and trouble of partition. That the estate in John Bleakley the son, determined on dying without issue, is dear; and that the remainder over in fee [562]*562vested in the trustee Archibald Young, or his executor Or ad'ministrator, for the purpose of sále, is also evident. For had even the authority been naked, and not coupled with an interest, yet by act of assembly, 3 St. Laws 200. “ when by the last “ will and testament of a decedent, a naked authority only to “ sell lands shall be given to executors, they shall take and hold “ the same interest in such lands, and have the same powers “ and authorities respecting the same, as if the lands were de- “ vised to them to be sold.” Nor does tlje main object of the sale cease on the brothers and sisters or either of them dying before John Blcakley the son, provided the brothers and sisters or either of them left children. For the devise of the proceeds is to -“ brothers and sisters, and their heirs, or such of them “ as shall be living at the decease of my said son,” to be divided between them in equal proportions, share and share alike. To whom? To brothers and sisters, or to heirs of brothers and sisters, who shall be living at the decease. By the word heirs, I understand children. What use of the word heirs, if children were not meant? For the proceeds on a sale going to a brother or sister, being personal estate, would give them the absolute interest, without the word heirs. And by the word heirs, I take to be meant children, because in the language of the people it means children, and it is in this language that the will is written. The popular meaning ought not to be set aside for a technical sense that defeats the general intention, which seems to have been that the estate should go over to brothers and sisters, and their issue. It is on the death of John Bleakley the son, and of the brothers and sisters, that the proceeds come immediately to the children. But coming to them as the children of brothers and sisters, they take, as one person, that share which would have come to those whom they represent. It would seem absurd to devise to persons and their heirs, or such of them as should be living, and, in construction, to confine thelivingtothepersons themselves, who must cease to live before there can be heirs, that is surviving children. Were it necessary to derive the interest through the stock, we might be embarrassed with the law of descent; but the children of the stock are the immediate takers, the stock ceasing to exist. The devise is to brothers and sisters, and their heirs. It cannot mean heirs general, and those who are equally the heirs of one brother and sister as of another, but the heirs of each brother and [563]*563sister severally: that is to the children of each the share of the parent. I understand it to be as much as to say that the parent not living, the child or children shall take, or offspring, or issue, or heir, which is the word used. The extreme case strikes me of a brother or sister surviving without children, and the three others deceased leaving children; in which case, on the opposite construction, the brother.or sister without a child, would take the whole, and the children of the deceased nothing; which would seem to defeat totally all use of the word heirs.
My impression upon the whole of this will is, that the testator meant that in case of his son dying without issue living at the time of his death, the estate should go over; that a legacy should go to Archibald Young, or his representatives, of 400/., and the remainder to brothers and sisters of the testator, or brothers’ and sisters’ children, but a sale to be made and the proceeds to be distributed; and that Archibald Young, his executors or administrators should make the sale, which sale should be made within two years after the contingency of the son dying without issue. Where there is an executor, or an executor of an executor, as in this case, there can be no administrator; and therefore the executor of the executor succeeds to the trust. The sale has been made by the executor, and it is good; for it is a principle of law, that no execution of a trust shall fail for want of a trustee; and a court of chancery in England, where a trustee fails, will appoint a trustee. With us the law will sanction the act of him who succeeds to the management of the affairs, the pursuit of the rights, and the discharge of the duties of the deceased.
The testator would not seem directly to have contemplated the event of Archibald Young dying before the son; but he has contemplated the dying after and before sale made; and the provision he has made with an eye to that event, in giving power to executors to sell, has embraced a case which he may not have had immediately in view, the dying before the son. For the sale by executors cannot be affected by the dying before; nor do I think the right to the legacy ought to be affected. There is nothing in it but that the annuity ceased sooner, and the estate, in the hand of the son, has been pro tanto relieved. Being however, clear as to the intention of the testator in regard of brothers and sisters and their children, and that intention having nothing in it unnatural or harsh, but on the contrary equal, and [564]*564to be approved, I am not disposed to yield easily to objections ' drawn from the application of principles of an artificial system.
What rule of law is there to oppose this construction? The son took an estate tail by implication. The dying without issue means the dying without issue living at the time of his death.. This is the meaning in common parlance, and it is sanctioned by decisions. There is therefore no indefinite failure of issue, and the contingency is not too remote. The remainder goes over. The children', if not in esse at the time of the devise, take what the law calls an executory remainder. They take on two contingencies. But it is not what is called a double contingency; ■for the last is collateral to the first, connected with it, and springing out of it, and therefore in fact but a single contingency, the children of a certain description of persons taking on the son dying without issue. ,If they must be considered as taking the real estate, they take it immediately under the devise, and without coming through the stock, but take the interest the stock would have taken. They take by purchase; and under the designation of heirs, or children, the heirs of each brother and sister take a fourth. That heirs may be construstrued children cannot be disputed. There are innumerable authorities to this. On the contingency happening, the fee is in the persons designated according to their proportions, or in the trustee for their use. There will be no abeyance. So that I can see nothing in the way of taking it as a devise of real estate, or real estate reduced to personalty, the proceeds to be divided. I am therefore of opinion that the plaintiff recover.
Judgment for the defendant.