By the Court. —
Lumpkin, J.,
delivering the opinion.
[733]*733Considering the time that has been consumed in Courts in discussing questions like those involved in this record, brevity, it would seem, is the greatest merit that an opinion could claim, which is written upon them.
After the decision by this Court in Jackson vs. Adams, 14 Geo. Rep. 557, and numerous parallel cases, before and since, I should esteem it a work of supererogation to undertake to show that, by the will of Abner Ross, Elizabeth Ross, his wife, took an estate for life only in his property, real and personal, and that after, and at the time of her death, it went to her heirs-at-law, or distributees.
There are but two questions in this record open to examination. After the above bequest, the testator provides, “But if it should please God that my wife should die without issue, then it is my will that my said real and personal estate be hired or rented out to the best advantage, and out of the first rent received that five hundred dollars be given to my brother’s widow, who is my wife’s sister, namely, Eatishia Ross, of Savannah, in token of my sincere regard for her, to hold to her forever; and the remainder of the rents, when collected, to be appropriated and applied towards the maintenance and support of my brothers’ (Elijah Ross and Ezekiel Ross) children, while they are under age and unmarried; but as soon as the last of such children shall become of age, or marry, it is my will, and I do hereby order that all my said property, real and personal, of what nature or kind soever, shall descend to all and every of such of my said brother’s children as may be then alive, to be equally divided amongst them, share and share alike, to hold to them severally and respectively, and to their heirs and assigns forever. And lastly, I do hereby nominate, constitute and appoint my dear and loving wife, Elizabeth Ross, to be executrix, and my dear and trusty friend, James T. Ross, to be my executor of this my last will and testament, hereby giving and granting, to1 my said executrix and executor, all my full power and lawful authority to execute this my will, according to the true intent and meaning thereof. In witness whereof,” etc.
Do the words "die without issue'1 mean, in this will, an indefinite failure of issue? We concede frankly that counsel for the plaintiff in error has cited strong and direct authority, that they do. These adjudications are to this effect: that it was the general intent of the testator, Ross, by the [734]*734use of the technical words “descend to the heirs of the body of Elizabeth Ross,” to create an estate-tail; that .admitting the superadded words, “share and share alike, and to their heirs and assigns forever,” etc., so far controlled the technical words “heirs of her body,” as' to malee them words of purchase, and not of limitation; yet that inasmuch as the limitation over is upon an indefinite failure of issue, “die without issue,” it shows that the testator, abandoning his particular intent,' returned to his general intent; and consequently the will stands as though it bequeathed the property to his wife, for life, and, after her death, to the heirs of her body.
We will state succinctly our reasons for dissenting from this doctrine. No such precedent is produced prior to’ May, 1776. All the reported cases read (and from the known ability and research of counsel, we are warranted in concluding that none older could be found), are subsequent to the period of the Revolution. It is well known that, down to Lord Mansfield’s day, and during his administration, a more liberal construction had obtained, culminating in the leading case of Doe ex dem. Long vs. Lanning, 2 Burrow, 1100, which criticised and perhaps overruled as it has been since in England, was law at the time our adopting statute took effect, and has always been followed and approved in this State as such. Lately, the English Courts had adopted a more stringent rule, until the parliament of Great Britain has been compelled to interfere (as the Legislature in Georgia has likewise, done), thereby releasing the subjects of that Kingdom, as well as the people of this State, from all the subtleties and refinements of legal and judicial pedantry upon this subject. Are we constrained, then, to incorporate this comparatively modern 'doctrine into our system, as a rule of property? We think not.
Again, with the most profound reverence for Lord Kenyon and of Lord Eldon, we must say, that, to our humble apprehension, their reasoning is fallacious, and was neither more nor less than evincive of a predetermination to sustain a particular policy — subversive, though it might be, of the intention of testators.
If the whole clause in the will, including the superadded words, created an estate for life in Elizabeth Ross, with remainder in fee to her heirs, how, I would ask, is it assumed, [735]*735■that, by the use of a part of the words in that clause, to wit: “heirs of the body,” it was the primary general intent to create an estate-tail? Is it admissible to divide a clause, instead •of taking the whole together, to justify such a .conclusion? We think not.
Again, it is contended that “to die without issue,” in the limitation over, means an indefinite failure of the progeny of Mrs. Ross, notwithstanding they took as purchasers. How-could the testator be supposed to contemplate such a contingency, when each one of these heirs, taking, as he did, a fee to his distributive share, became the root or propositus of a •new inheritance ? He acquired the unlimited power of disposing of-his share, by deed or will, or'any other way he saw fit. And yet, after aliening the property, and its getting scattered to the four quarters of the globe, if, at some distant period, the entire progeny should fail, Mr. Ross undertakes to devise this property over!
What would be the proper view of such a clause? Why, that the testator intended, by the words “issue” in the limitation clause the same class of persons designated in the first; that is to say, in this will, children and grandchildren, heirs or distributees of his wife. This harmonizes his intent. The other construction mars and defeats it. Had he used the word issue in the first clause, giving the estate to Mrs. Ross for life, and after her death to her issue, share and share alike, etc., and then proceeded as he did; and if she die without issue, etc., all would have been impressed with the identity of meaning. Using the words “heirs of the body,” and “issue,” does not lead to any different conclusion as to intention.
Having been cheered by our statute by a glimpse at fairy land, let us not unbidden plunge again amidst the disheartening gloom of Preston on Estates, Pearne on Remainders, to say nothing of Coke, Plowden, and the Year Books. Technical rules are binding in questions of property, and we can not supersede them. But following, in this case, the irresistible impulse of our judgment, and sustained, as we think, •by common sense, let us not be tempted to plume our wings for another flight to the clouds, in search of occult lore, for grounds to say, what we know was the will of Abner Ross shall not be his will.
The other question in this case, is this: Is this limitation [736]*736over too remote ? It does not appear but that one of the brothers of the testator had children, at his death.
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By the Court. —
Lumpkin, J.,
delivering the opinion.
[733]*733Considering the time that has been consumed in Courts in discussing questions like those involved in this record, brevity, it would seem, is the greatest merit that an opinion could claim, which is written upon them.
After the decision by this Court in Jackson vs. Adams, 14 Geo. Rep. 557, and numerous parallel cases, before and since, I should esteem it a work of supererogation to undertake to show that, by the will of Abner Ross, Elizabeth Ross, his wife, took an estate for life only in his property, real and personal, and that after, and at the time of her death, it went to her heirs-at-law, or distributees.
There are but two questions in this record open to examination. After the above bequest, the testator provides, “But if it should please God that my wife should die without issue, then it is my will that my said real and personal estate be hired or rented out to the best advantage, and out of the first rent received that five hundred dollars be given to my brother’s widow, who is my wife’s sister, namely, Eatishia Ross, of Savannah, in token of my sincere regard for her, to hold to her forever; and the remainder of the rents, when collected, to be appropriated and applied towards the maintenance and support of my brothers’ (Elijah Ross and Ezekiel Ross) children, while they are under age and unmarried; but as soon as the last of such children shall become of age, or marry, it is my will, and I do hereby order that all my said property, real and personal, of what nature or kind soever, shall descend to all and every of such of my said brother’s children as may be then alive, to be equally divided amongst them, share and share alike, to hold to them severally and respectively, and to their heirs and assigns forever. And lastly, I do hereby nominate, constitute and appoint my dear and loving wife, Elizabeth Ross, to be executrix, and my dear and trusty friend, James T. Ross, to be my executor of this my last will and testament, hereby giving and granting, to1 my said executrix and executor, all my full power and lawful authority to execute this my will, according to the true intent and meaning thereof. In witness whereof,” etc.
Do the words "die without issue'1 mean, in this will, an indefinite failure of issue? We concede frankly that counsel for the plaintiff in error has cited strong and direct authority, that they do. These adjudications are to this effect: that it was the general intent of the testator, Ross, by the [734]*734use of the technical words “descend to the heirs of the body of Elizabeth Ross,” to create an estate-tail; that .admitting the superadded words, “share and share alike, and to their heirs and assigns forever,” etc., so far controlled the technical words “heirs of her body,” as' to malee them words of purchase, and not of limitation; yet that inasmuch as the limitation over is upon an indefinite failure of issue, “die without issue,” it shows that the testator, abandoning his particular intent,' returned to his general intent; and consequently the will stands as though it bequeathed the property to his wife, for life, and, after her death, to the heirs of her body.
We will state succinctly our reasons for dissenting from this doctrine. No such precedent is produced prior to’ May, 1776. All the reported cases read (and from the known ability and research of counsel, we are warranted in concluding that none older could be found), are subsequent to the period of the Revolution. It is well known that, down to Lord Mansfield’s day, and during his administration, a more liberal construction had obtained, culminating in the leading case of Doe ex dem. Long vs. Lanning, 2 Burrow, 1100, which criticised and perhaps overruled as it has been since in England, was law at the time our adopting statute took effect, and has always been followed and approved in this State as such. Lately, the English Courts had adopted a more stringent rule, until the parliament of Great Britain has been compelled to interfere (as the Legislature in Georgia has likewise, done), thereby releasing the subjects of that Kingdom, as well as the people of this State, from all the subtleties and refinements of legal and judicial pedantry upon this subject. Are we constrained, then, to incorporate this comparatively modern 'doctrine into our system, as a rule of property? We think not.
Again, with the most profound reverence for Lord Kenyon and of Lord Eldon, we must say, that, to our humble apprehension, their reasoning is fallacious, and was neither more nor less than evincive of a predetermination to sustain a particular policy — subversive, though it might be, of the intention of testators.
If the whole clause in the will, including the superadded words, created an estate for life in Elizabeth Ross, with remainder in fee to her heirs, how, I would ask, is it assumed, [735]*735■that, by the use of a part of the words in that clause, to wit: “heirs of the body,” it was the primary general intent to create an estate-tail? Is it admissible to divide a clause, instead •of taking the whole together, to justify such a .conclusion? We think not.
Again, it is contended that “to die without issue,” in the limitation over, means an indefinite failure of the progeny of Mrs. Ross, notwithstanding they took as purchasers. How-could the testator be supposed to contemplate such a contingency, when each one of these heirs, taking, as he did, a fee to his distributive share, became the root or propositus of a •new inheritance ? He acquired the unlimited power of disposing of-his share, by deed or will, or'any other way he saw fit. And yet, after aliening the property, and its getting scattered to the four quarters of the globe, if, at some distant period, the entire progeny should fail, Mr. Ross undertakes to devise this property over!
What would be the proper view of such a clause? Why, that the testator intended, by the words “issue” in the limitation clause the same class of persons designated in the first; that is to say, in this will, children and grandchildren, heirs or distributees of his wife. This harmonizes his intent. The other construction mars and defeats it. Had he used the word issue in the first clause, giving the estate to Mrs. Ross for life, and after her death to her issue, share and share alike, etc., and then proceeded as he did; and if she die without issue, etc., all would have been impressed with the identity of meaning. Using the words “heirs of the body,” and “issue,” does not lead to any different conclusion as to intention.
Having been cheered by our statute by a glimpse at fairy land, let us not unbidden plunge again amidst the disheartening gloom of Preston on Estates, Pearne on Remainders, to say nothing of Coke, Plowden, and the Year Books. Technical rules are binding in questions of property, and we can not supersede them. But following, in this case, the irresistible impulse of our judgment, and sustained, as we think, •by common sense, let us not be tempted to plume our wings for another flight to the clouds, in search of occult lore, for grounds to say, what we know was the will of Abner Ross shall not be his will.
The other question in this case, is this: Is this limitation [736]*736over too remote ? It does not appear but that one of the brothers of the testator had children, at his death. It is altogether probable that there were children born before the death of his wife, who lived to extreme old age, and it is the remainder-men who have filed this bill. In Stephens vs. Stephens, cases Temp. Talbot, 2287, decided in 1736, it was held that a devise to such unborn son of a femme covert, as should first attain the age of twenty-one years, was held to be good. Since that time, an executory devise, to this extent, has been uniformly upheld, and is received as a part of the system of our American Testamentary Jurisprudence.
And in this case, the testator expressly clothed his executrix and executor “with all his power and lawful authority, to execute his will according to the true intent and meaning thereof.” In other words, he constituted them trustees for this purpose. After the termination of the life estate, five hundred dollars is to be raised out of the rents, issues and profits, for his wife’s sister, the remainder, when collected, to be appropriated and applied towards the maintenance and sup>port of his brothers’ children, while they are under age and unmarried; but as soon as the youngest of his nephews and nieces becomes of age or marries, the whole to go to all of Elijah and Ezekiel Ross’ children, as may be then alive, to be equally divided amongst them, share and share alike, to hold to them, severally and respectively, and to their heirs and assigns forever: the very same disposition which he intended to be made amongst the heirs of his wife — to whom he was evidently tenderly attached — Iliad she been blessed with any by any future husband.
If this be even a contingent remainder, or executory remainder, and no child or children had been born to his brothers, at the death of the life-tenant, still it would have been held by the testamentary trustees, to wait the possibility of such an event. But this supposition does not comport with the facts of the case. Neither is this the proper construction to put upon this bequest. I only state the case most strongly for the defendants.
Our conclusion, therefore, is, that the limitation over does not create a perpetuity. Whether this point was made in the Court below, does not appear. It is not noticed in the decision upon the demurrer, and but slightly argued in this Court.
[737]*737The judgment of the Circuit Court, overruling the decision, and ordering the defendants to answer the bill, is affirmed.
JUDGMENT.
Whereupon, it is considered and adjudged by the Court, that the judgment of the Court below be affirmed.