The opinion of the court was delivered, May 27th 1868, by
Strong, J.
If under the will of their father, Samuel Coulter, Jr., and Matthew Coulter took a fee tail in the land devised to them, confessedly the plaintiffs are not entitled to judgment upon the case stated. We think such was the estate given to them. The words of the will are these: “ I give and devise to my son Samuel Coulter, and my son Matthew Coulter, and the heirs of their bodies, all the plantation with all the appurtenances thereto, that I now live on.” Had the testator stopped here, no question could have been raised. The devise thus far is in the most apt words for the creation of an estate tail. But this clause is followed by a gift to the same sons of certain personal property, and the imposition of certain charges. The will then proceeds as fol[46] lows: “ My two sons Samuel and Matthew have no privilege, nor can in nowise sell or dispose of the land during their mother’s natural life or marriage, and then not without both be agreed to sell their parts* * * “ but if either one of them dies wanting heirs of the body, the part that the one owns falls to the other then except he be married, and if both die before they marry, their estate is to be equally divided amongst all the legatees.” This it is argued reduces the estates tail first given to estates for life in the first takers. We are however unable to see that any such effect is produced by these added directions. The words “heirs of the body” are strictly and technically words of limitation. Nothing can convert them into words of purchase, hut a clearly-expressed intention of the testator to use them in an abnormal sense. There is no such intention expressed in this will. It is very inartificially drawn, having been doubtless the work of a most illiterate scrivener, but there is not an intimation that the testator used the word “heirs” as meaning children. The first takers were clearly intended to he the root of the succession. There is indeed an ultimate limitation-to “the other legatees” of the testator, to take effect in the contingency that both sons should die -without having married, and in the settlement of the cross-remainders devised on the death of each son there is an exception that such remainder shall not pass, if the deceased son be married, but how this can reduce the estate first given clearly in tail, into an estate for -life I cannot perceive. The fact that the second and third limitations must take effect, if at all, at the death of the first takers, though it may be of importance in considering whether the ultimate gift is a remainder, or an executory devise, and if the latter, whether it is good as an executory devise or not, can have no effect upon the degree of the estate first given. An estate tail may be followed by a limitation over on a definite failure of issue. So, like an estate in fee, it may depend for its continuance on the performance of a condition, or may be defeated by the happening of a contingency, hut when once created, it remains an estate tail, until the occurrence of the contingency, or until the condition is broken upon which its continuance was made to depend. This is well illustrated in Fountain v. Gooch, cited by Lord Mansfield in Driver, ex d. v. Edgar, Cowp. 379, where a testator devised lands to his son for life, and to the heirs male of his body begotten, and for want of such issue the said son to have the said estate but during his natural life and no longer; and then the testator’s will was that the land should descend to his nephew. The son suffered a common recovery to the use of himself and his heirs, and devised the land and died without issue male. It was adjudged that his estate was at first an estate tail, and consequently that the remainder was barred by the recovery, notwithstanding that the gift was to the son during his life and no longer, in case he [47] had no issue male of his body, which, it was objected, rendered the estate tail contingent on his having male issue, and that, he dying without issue male, it had become but an estate for life ab initio.
The estate then given by the testator to his sons Samuel and Matthew cannot be regarded as merely an estate for life. Equally clear is it that it was not a conditional fee. There are no words to make it such. On the contrary, the gift was to them and the heirs of their bodies, with cross-remainders. Nothing in the words “ if one of them dies wanting heirs of the body, the part that one owns falls to the other then except he be married” can enlarge the estate first given into a fee. The exception defeats the cross-remainder in the contingency stated; it can have no other effect. And if it could affect the estate first given to the son so dying, it could only be by converting, in case of his marriage, a defeasible fee tail into a fee tail indefeasible. The plaintiff in error has labored earnestly to prove that the ultimate limitation to “ the other legatees” is an executory devise, and not a contingent remainder. From this it is inferred that it was not destroyed by the deed of Samuel and Matthew Coulter dated November 2d 1854 made for the purpose of barring the estate tail. Neither the premises nor the inference can be conceded. That the ultimate limitation must take effect as a remainder rather than as an executory devise if it can, is a plain rule. Now the estate given to “ the other legatees” commences with an event which is in itself a regular determination of the estate tail, to wit, the death of the tenants in tail, without marriage, and of course without leaving issue then living. The two estates are therefore immediately connected, the latter dependent on the former. And as the ulterior limitation does not in any degree abridge or interfere with the estates tail, or accelerate their determination, it may well be considered a remainder ; not vested indeed, because dependent upon the event of the estates tail determining by the decease of the tenants in tail, leaving no issue living (they not having been married), but contingent on the expiration of the estates tail by that event.
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The opinion of the court was delivered, May 27th 1868, by
Strong, J.
If under the will of their father, Samuel Coulter, Jr., and Matthew Coulter took a fee tail in the land devised to them, confessedly the plaintiffs are not entitled to judgment upon the case stated. We think such was the estate given to them. The words of the will are these: “ I give and devise to my son Samuel Coulter, and my son Matthew Coulter, and the heirs of their bodies, all the plantation with all the appurtenances thereto, that I now live on.” Had the testator stopped here, no question could have been raised. The devise thus far is in the most apt words for the creation of an estate tail. But this clause is followed by a gift to the same sons of certain personal property, and the imposition of certain charges. The will then proceeds as fol[46] lows: “ My two sons Samuel and Matthew have no privilege, nor can in nowise sell or dispose of the land during their mother’s natural life or marriage, and then not without both be agreed to sell their parts* * * “ but if either one of them dies wanting heirs of the body, the part that the one owns falls to the other then except he be married, and if both die before they marry, their estate is to be equally divided amongst all the legatees.” This it is argued reduces the estates tail first given to estates for life in the first takers. We are however unable to see that any such effect is produced by these added directions. The words “heirs of the body” are strictly and technically words of limitation. Nothing can convert them into words of purchase, hut a clearly-expressed intention of the testator to use them in an abnormal sense. There is no such intention expressed in this will. It is very inartificially drawn, having been doubtless the work of a most illiterate scrivener, but there is not an intimation that the testator used the word “heirs” as meaning children. The first takers were clearly intended to he the root of the succession. There is indeed an ultimate limitation-to “the other legatees” of the testator, to take effect in the contingency that both sons should die -without having married, and in the settlement of the cross-remainders devised on the death of each son there is an exception that such remainder shall not pass, if the deceased son be married, but how this can reduce the estate first given clearly in tail, into an estate for -life I cannot perceive. The fact that the second and third limitations must take effect, if at all, at the death of the first takers, though it may be of importance in considering whether the ultimate gift is a remainder, or an executory devise, and if the latter, whether it is good as an executory devise or not, can have no effect upon the degree of the estate first given. An estate tail may be followed by a limitation over on a definite failure of issue. So, like an estate in fee, it may depend for its continuance on the performance of a condition, or may be defeated by the happening of a contingency, hut when once created, it remains an estate tail, until the occurrence of the contingency, or until the condition is broken upon which its continuance was made to depend. This is well illustrated in Fountain v. Gooch, cited by Lord Mansfield in Driver, ex d. v. Edgar, Cowp. 379, where a testator devised lands to his son for life, and to the heirs male of his body begotten, and for want of such issue the said son to have the said estate but during his natural life and no longer; and then the testator’s will was that the land should descend to his nephew. The son suffered a common recovery to the use of himself and his heirs, and devised the land and died without issue male. It was adjudged that his estate was at first an estate tail, and consequently that the remainder was barred by the recovery, notwithstanding that the gift was to the son during his life and no longer, in case he [47] had no issue male of his body, which, it was objected, rendered the estate tail contingent on his having male issue, and that, he dying without issue male, it had become but an estate for life ab initio.
The estate then given by the testator to his sons Samuel and Matthew cannot be regarded as merely an estate for life. Equally clear is it that it was not a conditional fee. There are no words to make it such. On the contrary, the gift was to them and the heirs of their bodies, with cross-remainders. Nothing in the words “ if one of them dies wanting heirs of the body, the part that one owns falls to the other then except he be married” can enlarge the estate first given into a fee. The exception defeats the cross-remainder in the contingency stated; it can have no other effect. And if it could affect the estate first given to the son so dying, it could only be by converting, in case of his marriage, a defeasible fee tail into a fee tail indefeasible. The plaintiff in error has labored earnestly to prove that the ultimate limitation to “ the other legatees” is an executory devise, and not a contingent remainder. From this it is inferred that it was not destroyed by the deed of Samuel and Matthew Coulter dated November 2d 1854 made for the purpose of barring the estate tail. Neither the premises nor the inference can be conceded. That the ultimate limitation must take effect as a remainder rather than as an executory devise if it can, is a plain rule. Now the estate given to “ the other legatees” commences with an event which is in itself a regular determination of the estate tail, to wit, the death of the tenants in tail, without marriage, and of course without leaving issue then living. The two estates are therefore immediately connected, the latter dependent on the former. And as the ulterior limitation does not in any degree abridge or interfere with the estates tail, or accelerate their determination, it may well be considered a remainder ; not vested indeed, because dependent upon the event of the estates tail determining by the decease of the tenants in tail, leaving no issue living (they not having been married), but contingent on the expiration of the estates tail by that event.
It is not essential to this case, however, to determine whether the final devise to “ the other legatees” was a contingent remainder or an executory devise, for in either aspect it was cut off by the deed of November 2d 1854. Under our Act of Assembly of January 16th 1799, such a deed has the effect of a common recovery. Now, though a common recovery suffered by a tenant in fee does not bar executory devises and conditional limitations, the rule is different with a common recovery suffered by a tenant in tail: 1 Preston’s Abstracts 'of Title 400. Mr. Fearne lays down the principle thus: Fearne on Remainders 423-4: “ Though in general, an executory devise, even of lands of inheritance, cannot [48] be barred by the first taker, yet we are to observe, that where in lands of inheritance an estate tail is first limited, and then an executory or conditional limitation is made upon that estate, a recovery suffered by the tenant in tail before the event or condition happens, on which the ulterior limitation was to arise, will bar the estate depending on that event or condition.” Eor this he cites cases which sustain the doctrine in every conceivable aspect. Thus, Page v. Hayward, 2 Salk. 570, was a case where the testator devised to A. and the heirs male of her body, upon condition and provided she married one Searl, and had issue male by him, and in default of both conditions, he devised to E. She married one Cliff, and with him levied a fine and suffered a recovery of the lands. It was adjudged that she took an estate tail special, that her estate did not cease by her marrying another than Searl, for she might survive her husband, and. afterward marry Searl, and (which is the material thing now) that if the estate had been to A. and the heirs of her body by Searl begotten, provided and upon condition that if she marry any but Searl, it should be and remain to another, a common recovery suffered before marriage would bar the estate tail and remainders, and her subsequent marriage with another would not have avoided the recovery.
So (1 Mod. 111), a gift to one in tail determinable on his nonpayment of 1001., remainder to B. in tail, first tenant in tail suffers a common recovery before the day of payment, and after-wards fails in the payment, yet because he was tenant in tail when he suffered the recovery, all is barred; Mr. Eearne adds: “ So if a tenant in tail be with a limitation so long as such a tree shall stand, a common recovery will bar that limitation.” Driver v. Edgar, above referred to, is a significant case. There lands were devised to Eve and to the heirs of her body lawfully begotten, but in case she should happen to die single, married or widow, without leaving children or child living at her decease, lawfully begotten, then the estate given her should be void as to the inheritance of heirs,' and of none effect, and the lands should go to the testator’s heir male. Eve died unmarried, having suffered a common recovery. It was contended that she was tenant for life only, but it was ruled that she was a tenant in tail, and that the recovery barred the ulterior limitations. These cases have a direct bearing upon the case before us. They establish that the estates given to the two sons, Samuel and Matthew Coulter, were estates tail and not estates for life, or conditional fees, and they are conclusive to the effect that the deed of November 2d 1854, equivalent to a common recovery, converted those estates into fees simple absolute. The plaintiffs then are not entitled to recover.
Judgment affirmed.