Lacy, Judge,
delivered the opinion of the court:
The question to be decided is, what interest or estate did Nancy Walker take in the slave, Sarah, by the will of William Walker, deceased? Did she acquire the absolute right of property, or only a a life estate, subject to be divested by the happening of the contingency mentioned in the will? The language of the will is, “I give and bequeath to my son, Thomas Walker, my negro boy, Billy. Item. I give and bequeath to my daughter, Nancy Walker, my negro girl, Sarah. It is my will and desire that, after the death of my wife, all the personal estate I have, but her, with the increase thereof, be equally divided between my son, Thomas Walker, and my daughter, Nancy; and if either the said Thomas or Nancy Walker die before they arrive at lawful age, or without heir lawfully begotten of their body, that the surviving one have that part of my estate bequeathed to the deceased one.”
The object of the courts of all countries, in the construction of wills, is to arrive at the true and real intention of the testator. To this end all the rules upon the subject necessarily tend, and upon it they are all made to turn. When words of bequest pass a present interest, the share of the first devisee vests sub modo, subject to be divested on a contingency. 1 Roper on Legacies 403; 3 Meriv. 340, Shepherd vs. Ingram, Amb. 448.
If a legacy be given to a devisee, and eo time of payment be expressed in the will, or if it be directed to be paid at twenty-one, and if he die before that age, the legacy will vest in the mean time, subject to be divested in the event of his dying under the age of twenty-one. Lyon vs. Mitchell, 5 Mad. 446; Deane vs. Test, 9 Ves. 147, 152; Davidson vs. Dallas, 14 Ves. 576. In Fonereau vs. Fonereau, 3 Atk. 645, the will was, I give my grand-son, Claudius F., when he shall attain twenty-five, £1000, which I empower my executors to lay out in such securities as they shall think fit; and the interest and income thereof to be for and towards his education, and also a part of the principal to put him out as an operative, and the remainder to be paid him when he shall attain to twenty-five, and not before. In this case, Lord Hardwicice held, that the legacy vested immediately upon the death of the testator, though the legatee died before he attained the age of twenty-five years. The legacy was directed to be paid upon his reaching a certain age; that time was inserted, not for the purpose of postponing the vesting, but the payment of the legacy. When interest is given, it vests the principal; and the case above cited fully proves this rule. Fonereau vs. Fonereau was said to be a strong case of a vested and a transmissible legacy, notwithstanding the dying before twenty-five. Green vs. Pigot, 1 Brown’s Ch. Cas. 104, 105. In Monkhouse vs. Holme, 1 Brown Ch. Cas. 298, Lord Loughbough remarked, MI rather take the rale to be, that when the time is annexed, not to the form, but to the substance of the gift, then the legacy lapses by the death of the legatee.” In Steadman vs. Palling 3 Atk. 423, the rule is laid down, that if a legacy be devised to one generally, to be paid or payable at the age of twenty-one, and the legatee die before that age, yet the interest is vested in the legatee, and the executor may recover it. It is said to b<# due presently, but payable in future; the time being annexed to payment, and not to the sub-stance of the legacy. But if a legacy be devised to a person at twenty-one, or when he shall attain the age of twenty-one, and the legatee dies before that age, the legacy is then said to be lapsed; for in such a case time would be of the essence of the legacy, and would therefore govern the bequest. In Van vs. Clark, 1 Atk. 510, the Lord Chancellor states the general doctrine to be, that a legacy given out of a personal estate, payable at a certain time, or if given at a certain lime, and interest in the mean time, such a gift is a vested legacy. The rule is held be otherwise as to legacies out of real estate; for there, if the legacy is made payable at a certain time, and the legatee dies before that lime, it, of course, is a lapsed, and not a vested legacjr. The Master of the Rolls, in delivering the opinion in Hanson vs. Graham, 6 Ves. 239, declared that an absolute gift of interest, according to the established usage, vested the legacy, and that it could not be divested if the absolute right of property passed by the bequest. May vs. Wood. 3 Bro. Ch. Cas. 471; Love vs. L'Estrange, 3 Bro. P. C. 337; Cave vs. Cave, 2 Vern. 508; Robinson vs. Fitzherbert, 2 Bro. C. C. 127; Paterson vs. Ellis, 11 Wend. 269, ’70, ’71, 72, 74. In Paterson vs. Ellis, the testator appropriated to his infant daughter a specific legacy, and directed it to be vested in her name, and the whole principal and interest to be at her own free and absolute disposal, upon her attaining the age of twenty-one years. The Court of Errors, of New-York, held this to be a vested legacy, although the words “ give and bequeath” were not used in the will. And Chief Justice Savage, in delivering his very able and learned opinion in that case, sums up the whole doctrine as follows: ilif there is a gift of the principal, unconnected with the time of payment, then the legacy vests; if there is no gift, except at the time of payment’ then it does not vest until the time arrives; and if it never arrives, the legacy is lapsed.”
In this case there can be no doubt that the legacy vested the slave, Sarah, in Nancy Walker immediately upon the death of the testator. The will gave her the principal, as well as the interest of the property, by express words. And that being the case, according to all the authorities, and the reasons upon which they are founded, the legacy of course vested by the will.
- The question still remains to be answered, what estate passed to her by this vested legacy 1 Did she take an absolute interest in the property, or only a conditional fee; and if the latter, is the limitation over valid by way of executory devise ? The appellant contends that the. devise over is void, first, because it is repugnant to the absolute gift of the property; and, secondly, because the limitation over is too remote to create an executory devise. The complainant insists, the legacy being once vested, the limitation over contains a valid execu-tory devise, and that, therefore, after the death of Nancy Walker the property passed to, and became vested in William C. Walker, the legal heir and representative of Thomas Walker, deceased. It is essential to the validity of an executory devise, that it cannot be defeated by the first taker. If the absolute right of property is given to the first taker, the limitation over is void. For if a legatee possesses the absolute right of property, he certainly has the power of disposing of it in any way he may think proper, and, therefore, he might defeat the devise or limitation over. If a testator gives property absolutely, in the first instance, to a legatee, he cannot, afterwards, subject it to-any limitation or provision whatever, as for example, that he shall hold it for a life, or that he shall not spend it in a particular manner. The absolute right of ownership carries with it full power of disposing of the property. The case of the Attorney General vs. Hall, 8 Viner 103, expressly decides this point. So also, the case of Flanders vs. Clark, 1 Ves. Sen. 9; Butterfield vs. Butterfield, 1 Ves. Sen. 134, and Bradley vs. Peixotto, 3 Ves. 324: the same doctrine is re-asserted and affirmed in Ross vs. Ross, 1 Jac. and Walk. 154, decided in 1819. Chancellor Kent has stated the principle, contained in all the authorities, very briefly and comprehensively in the second volume of his Commentaries, at pages 352, 353, 354. The rule there laid down is, “ that chattels or money may be limited over after a life interest, but not after a gift of the absolute property, nor can there be an estate tail in a chattel interest, for that would lead to a perpetuity, and no remainder over can be permitted on such a limitation; that it is a settled rule, that the same words which, under the English law, would create an estate tail as to freeholds, give the absolute property as to chattels.” In Paterson vs. Ellis, 11 Wend. 299, Senator Edmowds uses this emphatic language, “ that when the use of a chattel is devised to one for life, with remainder to another, the demise of the remainder is yalid. The devise for life must be clear and explicit, and the intention of the testator, to give only a life estate, must be undisputed; but where the devise is such, that the property and the chattel becomes absolutely vested in the first taker, any attempt of the testator after-wards to control or restrict the power of disposing of it, is an unwarrantable interference with the absolute right of property, already granted, and consequently void.”
Testing the case now before us by these principles and authorities, it will be readily perceived that Nancy Walker acquired, by the will of her father, the absolute right of property of the slave in controversy. The testator does not limit the devise to a term of years or for life. He does not bequeath to her the use of the property either by implication or by any express provision. If the use of the chattel is only given in this case, the testator has certainly not expressed that intention in clear or explicit terms. Neither has he placed that intention beyond dispute by the terms of the bequest. Having failed to do this, the legal presumption is, he intended to vest in the first taker the absolute right of property. Again, this intention is made self-evident by the express words of the will. The testator first makes a disposition of certain portions of his estate to his wife and children, and he then declares, “I give and bequeath to my son, Thomas Walker, my negro boy, Billy. Item. I give and bequeath to my daughter, Nancy Walker, my negro girl, Sarah.” Then follows the limitation over. The terms used in this bequest are surely sufficient to pass the absolute right of property. They are such as are usually employed in testaments for.that purpose, and they are brief, explicit, and comprehensive, conveying the whole and entire interest of the two slaves, bequeathed to Thomas and Nancy Walker. If it was not the intention of the testator to pass the absolute right of property, why did he not limit and restrict its use? His failure to do so is conclusive evidence that his object and intention was to convey the entire right, and that being the case, the law will not permit him afterwards to control and restrict its’ownership, or to interfere, in any manner, with the absolute right of property, previously granted. Wc, therefore, consider the limitation over void, because it is repugnant to the first clause of the will, which vested the whole and entire interest of the slave, Sarah, in Nancy Walker. Moreover, we hold the remainder over to be void, by reason of its remoteness, as being repugnant to the principles of natural right and justice, and alike opposed to the policy of the common law, and the genius of our free and liberal institutions.
The ancient common law was favorable to liberty, and hence it imposed few restraints, if any, upon the alienation of property. Upon the introduction of the feudal system entailed estates were first established. The policy and object of that system was to create and keep alive perpetuities. This the common law abhorred; and hence arose a fierce and violent contest between the supporters of restraints, in favor of the non-alienation of property, and the friends of its free and unfettered enjoyment, which lasted for centuries. Finally the rigor and injustice of the feudal system yielded to the general sense of the nation, and property became alienable, first, by deed, and afterwards by will. And in the case of the Duke of Marlborough vs. Earl Godolphin, 1 Edin. 417, Lord Nottingham well remarked, “ that the spirit of English liberty would not submit to the statute of entails,” “and Westminster Hall, siding with liberty, found means to evade it.” The celebrated statutes of 32, 34 and 35, Henry VIII, and 29 Charles II, finally completed the triumph of the alienation of property by will, and these statutes have been substantially re-enacted by most, if not all the States of this Union, and they now constitute the ground work of all our statutes on wills. The principles established by our revolution swept away the doctrine of primogeniture, and that of entailed estate, and left the citizen in the full and free enjoyment of his property, with the power of disposing of it, in any manner he might think proper. An executory devise “ is a disposition, by will, of a future interest in lands or chattels, not to take effect at the testator’s death, but limited to arise at some future contingency.” A more limited definition of it is “such a limitation of a future estate or interest in lands or chattels as the law admits in the case of a will, contrary to the rules of limitation, in conveyances at common law.” All future limitations over, in wills, which are consistent with the rules of the common law, respecting contingent remainders in a deed, are, in a will, construed contingent remainders. 2 Fearne 1, 2. An execu-tory devise cannot be barred by a fine or a common recovery, and, therefore, to prevent perpetuity, it became necessary to prescribe the bounds and limits beyond which it should not extend. The time to which they were limited was definitely settled in Stephens vs. Stephens, and that decision received the sanction of the Court of Chancery, and of the Judges of the King’s Bench. According to the resolution of that case the devise over must vest within the compass of a life or lives in being, and twenty-one years and nine months thereafter. But should an executory devise be not limited to an event within the prescribed period of time mentioned, as upon an indefinite failure of issue, it was void, by reason of its remoteness, as favoring the doctrine of entailed estates, and thereby creating perpetuities. S(It is of no importance how the fact turns out to be; it is void at the commencement, if the event on which its existence depends may, by possibility, extend beyond the duration of the time prescribed.” 6 Cruise, tit. Devise, 32, ch. 17. In order to understand fully the reason of the courts in deciding a peculiar class of cases arising upon executory devises, it is necessary, briefly, to define what is meant by a fee simple, qualified, base, or a conditional, fee, and fee tail. A fee simple is “ a pure inheritance, clear of any qualification or condition. It gives a right to all his heirs generally, provided they be of the blood of the first purchaser, and the blood.of the person last seized.” It is the greatest estate or interest that a person can have in lands or tenements, and it carries with it unlimited power of alienation. “ A qualified, base, or determinable fee, is an interest which may continue forever, but the estate is liable to be determined by some act or event, circumscribing its continuance or extent.” A conditional fee is one which restrains ,the fee to some particular heirs, exclusive of others; as, to the heirs of a man’s body, or to the heirs male of his body. This was, at common law, construed to be a fee simple, upon condition that the grantee had the heirs prescribed. If the grantee die without such issue, the lands revert to the grantor. By having issue, the condition was supposed to be performed for three purposes, to wit: to alien, to forfeit, and to charge. By the performance of the condition the grantee could, by alienation, not only bar his own issue, but the possibility of reversion to the grantor. And this alleged breach of the grant was the occasion of the statute of Westminster, 2nd 13 Edward I, ch. 1, commonly called the statute De Donis, which recited the evasion of the condition of the gift by this subtle construction, and consequent alienation, going to defeat the intention of the donor. The statute enacted, in substance, that the will of the donor should be observed. The land was declared to revert if there never was issue, if such issue failed, or if the heirs of the body of such issue failed. The statute was understood as confirming the estate to the issue of the grantee until such issue should fail. There could be no reversion so long as the issue of the grantee had issue ad infinitum. Whenever there was an absolute failure of issue, then the land, reverted to the original grantor. The donee had no power to alienate the land, or bar his issue so long as there remained a probability of issue. Hence, failure of issue, and dying without issue, meant not only failure of the grantee to have issue, but an indefinite failure of issue generally, and such, accordingly, was the construction put upon these words of the statute. Under this statute the grantee had no longer a conditional fee, but his interest was denominated a fee tail, that is, a fee from which the general heirs are entirely cut ofifi The true policy of the common law was deemed to be overthrown by this statute, for it went to establish perpetuities in estates. Several ineffectual attempts were made in parliament to get rid of it, but it was not until Talturam’s case, 12 Edward IV, that relief was obtained against this great national grievance, and it was effected by a bold and unexampled stretch of judicial power. The Judges in that case resolved upon consultation, that an estate tail might be cut off and barred by common recovery, by reason of the intended recompense. that the recovery was supposed to give to those who were entitled to receive the estate. These recoveries are now only considered as simple conveyances on record, invented at first, by the courts, to give a tenant in tail the absolute power to dispose of his estate. A common recovery removes all limitations or restraints upon entailed estates, and passes a pure and unqualified fee by operation of the conveyance. It is the only mode of conveyance by which a tenant in tail can effectually bar his issue and all subsequent remainders. “ For if he conveys by deed he conveys only a base fee, which will not exclude his heirs. If by fine, he only bars his heirs, but not subsequent remainders. Common recoveries were, for some time, sought to be eluded ■by fettering the estates attempted to be conveyed by these restraints and conditions; and it was against these restraints and conditions that Lord Bacon pithily and justly remarked, “ that it was better for the sovereign and subject that men should be in hazard of having their houses undone by unthrifty posterity, than to be tied to the stake by such perpetuities.”
The validity of executory devises was finally settled in the case of Rolles vs. Brown, Cro. Jac. 590; and it was then decided that a fee, might be limited upon a fee, by way of executory devise, and that such limitation could not be barred by a common recovery. That case was silent as to the bequest by devise of a chattel interest. In the case of the Duke of Norfolk, 3 Chan. cases, 1 Pollex. 223, the subject of executory devises, as upholding the doctrine of perpetuities, was profoundly and elaborately discussed. There was a difference of opinion between the three Judges that tried that cause, and Lord Chancellor Nottingham. The question arose upon the trust of a term of years upon a settlement by deed, and it was whether a limitation over, upon the contingency of the devisee dying without issue, was valid or not. The Judges were against the limitation over, and declared it to be void, upon the ground of its favoring perpetuities. The Chancellor insisted that future interests, springing on executory trusts and remainders, did not fall within the reason and policy of the law which abhorred perpetuities, and therefore they were valid, and were necessary to provide for the exigencies of families. The case was taken up to the House of Lords, and the Chancellor’s opinion was there affirmed. And the principle of that case extended to a terra of years, equally with estates of inheritance. Since the decision of this case, the legality of execu-tory devises has never been questioned as to estates of inheritance, nor as to chattel interests, provided they extend to no greater a period of lime than a life or lives in being and twenty-one years, and the fraction of another year, so as to include the case of a posthumous child. Scatterwood vs. Edge, 1 Salk. 229; Snow vs. Cutler, 1 Lev. 135; Leddington vs. Kine, 1 Ld. Raym. 203; Stephens vs. Stephens, Cas. Tem. Talbot, 228; Wood vs. Saunders, Pollex. 35.
The reason of the invention of executory devises was to support the will of the testator when it was evident a contingent remainder was attempted to be created, but could not operate as such by the rules of the common law. An executory devise differs from a contingent remainder in three material points. 1st. It needs not a particular estate to support it. 2d. That by it a fee simple or any less estate may be limited after a fee. 3d. That by this means the remainder of a chattel interest may be limited after a particular estate for life has been created. The first case happens when a devise of a future in--terest is made to depend upon a contingency. In such a case there is in effect a contingent remainder, without any particular estate to support it, commencing in futuro. This limitation,' though it will be void by deed, because there can be no livery of seizin, is nevertheless good by way of executory devise. The second case is where a devisor passes all his estate in fee, but limits the remainder thereon to commence upon a future contingency, which may, by possibility, never occur within the time prescribed by law. The third case is when an executory devise of a term of years may be granted to one man during his life, and afterwards limited over in remainder to another. This could not be done by deed, upon the principles of the common law; for the first grant for a term of years to a man fop life, was deemed to be a total disposition of the whole estate — a life estate being a higher and larger interest than a term of years. By deed a fee cannot be created without words of inheritance, if the terms used in the deed convey the whole interest of the grantor, he at the same time being seized of an indefeasible estate of inheritance. By will a fee may vest without words of inheritance, and an estate tail may be created by executory devise without words of procreation. An executory devise is considered in the light of a limitation of a use, and hence it is to be construed with as much favor and benignity as is consistent with the rules of law. The testator cannot make a devise contrary to law, for that would enable a private man, by his own judgment, to set aside the supreme will of the State. When technical phrases or terms of art are used, it is fair to presume that the testator understood their meaning, and that they expressed the intention of his will, according to their import and signification. When certain terms or words have by repeated adjudication received a precise, definite, and legal construction, if the testator in making his will use such terms or similar expressions, they shall be construed according to their legal effect; for, if this was not the case, titles to estate would be daily unsettled, to the ruin of thousands. It is all-important to the interest of society, that the rules of property should be definitely settled, and that they should possess uniformity and consistency. Ide vs. Ide, 5 Mass. 500.
We have now arrived at that point of our inquiry, when the terms “dying without issue,” “ dying without leaving issue,” “dying without leaving issue lawfully begotten,” or “ dying without heirs lawfully begotten of their body,” have to be interpreted and explained. Upon this subject there has been a greater diversity of opinion among the eminent and distinguished jurists of our own country, as well as of Great Britain, than upon almost any other branch of the science of law. The most illustrious names are found directly and warmly opposed to each other, and the discussions and decisions upon the point, have given rise to the display of extraordinary abilities and learning. As the question depends mainly upon the weight of authority, it necessarily imposes upon us the duty of reviewing a few of the most important cases that have been adjudged upon the point. In the course of our examination we shall draw largely upon the opinion of Chief Justice Savage in the case of Paterson vs. Ellis before quoted. It cannot be denied, that were the question to be settled upon the common acceptation of the terms used in the will, the testator meant issue living at the death of his daughter. If the language, however, used by him, has acquired by a series of adjudications, a legal technical meaning, and if that should be wholly different from the common acceptation of the terms, then is our duty to give to those terms their precise legal meaning; or otherwise, as many learned judges have said, we might unsettle many estates held under convey anees or wills drawn with special reference to the legal construction given to the language used. Lord Kenyon in delivering the judgment in Porter vs. Bradley said he considered the ca3e of Pells vs. Brown as the foundation or magna charta of this branch of the law. As we will have occasion to return to this case hereafter, we shall pass over it for the present.
The proper words in a grant or a devise to create an estate tail, are “to the grantee, and to the heirs of his body lawfully begotten.” Such a devise of land in England conveys an estate for life in the grantee, and the inheritance to his children. Such a devise there of a chattel interest would pass the absolute right of property. The law in both cases abhors perpetuities. A perpetuity in land may be barred by a fine or common recovery, but not so as to personal estate, and therefore in regard to personalty, a perpetuity cannot be prevented} but by declaring that such a devise gives the absolute right of property. It is well settled that the devise of land for life, or in fee, with remainder over, if the devisee die without issue, or without leaving issue, will be a devise in tail to the first taker. Paterson vs. Ellis, 11 Wend. 279; 6 Cruise, 290; Doe vs. Ellis, 9 East, 382. The words dying without issue, or without leaving issue, have always been held in such a devise to be an indefinite failure of issue, and the rule of construction is the same with respect to real as to personal property. In Forth vs. Chapman, 1 P. Wm's. 663, Walter Gore devised the residue of his real and personal estate in trust for use of his nephews William and Walter after making several other bequests, he gave certain freeholds and chattels to William; and, if either of his nephews, William or Walter, should depart this life and leave no issue of their respective bodies, then he gave the leasehold premises to the children of a brother and sister. Upon this will the question arose whether the limitation over of the leasehold premises to the children was void as being remote, it was decided by the Master of the Nolls that the devise over was void: afterwards the cause coming up upon an appeal before the Lord Chancellor the decree was reversed, and it was de. cided that the words “ die without leaving issue,” meant issue living at the time of his death, which made the devise over good, and that the words “ die without issue,” as to the freehold, meant a failure of issue at any time, and with respect to the leasehold, the same words should be taken to signify dying without issue at their death. In Atkinson vs. Hutchinson, 3 P. Wm’s, 358, and in Sheffield vs. Orrery 3 Atk. 282, the same distinction was taken, as to real and personal estate, and this was followed up by Denn vs. Shenston, Cowper, 410. This is denied by Lord Kenyon in Porter vs. Bradley, as the devise contained the words 44 behind them,” which controlled the general terms of the devise. In Daintry vs. Daintry, 6 T. R. 313, Ld. Kenyon intimated that the words dying without leaving issue of his body lawfully begotten, created an estate tail in the realty, but the devise over of the personalty washolden to be good. The doctrine of Forth vs. Chapman, and the distinction there taken, was supported by Crook vs. Devandes, 9 Ves. 203, where it was held that the words 44 leave no such heirs,” meant at his death, as to personal property. These cases were all decided upon the authority of Forth vs. Chapman, and they are now entirely overruled, and the distinction between the words 44 die without issue,” or “ without leaving issue,” or 44 heirs lawfully begotten,” as applied to real and personal estate, is entirely exploded by a series of adjudicated cases of the highest weight and authority. The rule is now well settled in England, and Ld. Rosslyn, in Chandless vs. Price, 3 Ves. 99, has correctly stated “ that where the words used would give an estate tail in real estate they give the absolute property in personalty, unless you can find in the will something to show that the testator intended to tie it up.” The doctrine here established is the same as laid down in the case of Chatham vs. Tothill, 6 Bro. P. C. 450. The words of the devise over, in the latter case, were “ for want of such issue,” and there is certainly no difference between that expression, and “ leaving no issue,” as used in Forth vs. Chapman. In Boehm vs. Clark, 9 Ves. 580, Sir Wm. Grant says, 44 that the Judges were inclined to hold 4 die without issue’ to mean issue at the death of the person named, but that he considers the rule well settled since the case of Beauclerk vs. Dormer, and that these words, without something to limit them, must have their legal signification, that is death without issue, or an indefinite failure of issue,” and he cites a great number of cases to prove this position. Glover vs. Strothoff, 2 Bro. C. C. 36; Attorney General vs. Bailey, ib. 558; Doe vs. Cooper, 1 East. 230; Tenny vs. Agar, 12 East, 354. Romilly vs. James, 6 Taun. 264. The same doctrine is so stated by Fearne in his learned treatise on executory devises and remainders, 485.
We are well aware that the Supreme Court of Kentucky have followed the case of Forth vs. Chapman, and in Moore vs. Howe, 4 Mon. 202, have decided that the words die without leaving issue mean a failure of issue at the death of the first taker, and also that the words are to be construed in one sense when applied to real, and in another when applied to personal estate. And in Brashears vs. Macy, 3 J. J. Marshall, 90, they go so far as to declare that in a devise of personal estate the expression dying without issue is invariably interpreted to mean, ex vi termini, issue leaving at the death of the first taker. See also Mosely vs. Corbin, 3 Marsh. 289.
The authorities we have already cited seem to us to demonstrate the incorrectness and fallacy of the Kentucky decisions. Besides they have been expressly overruled by most of the courts of our own country, and by the Supreme Court of the United States. Ide vs. Ide, 5 Mass. 500; Dallam vs. Dallam 7 Harr. and Johns. 220; Newton vs. Griffith, 1 Harr. and Gill, 111; Lydnon vs. Lydnon, 2 Munf. 269; Carter vs. Tyler, 1 Call. 143; Hill vs. Burrow, 2 Ibid. 342; Bell vs. Gillespie, 5 Randolph, 273; Broadus vs. Turner, Ibid 308, Denn vs. Ward, Cam. and Nor. 202; Cruger vs. Hayward, 2 Desauss. 94; Irwin vs. Dunwoody, 17 Serg. and Rowle, 61; Casky vs. Brewer, 17 Ib. 441. The position so broadly assumed in Brashears vs. Macy has no support any where. It is no where determined that there is any such distinction whenjthe general words “die without issue”'are used, between a devise of real and one of personal estate. In Forth vs. Chapman the word “ leaving” was relied on, and so it was- in Atkinson vs. Hutchinson, and so in Sheffield vs. Orrery, and in all the other authorities that follow the rule of Forth vs. Chapman. In Williamson vs. Daniel, 12 Wheat. 568, the testator gave certain negroes to his grandson, and certain other negroes to his grand-daughter, and then declared that if either of his grand-children die without a lawful heir of their bodies, that the other should have its estate. The court said that these words converted an absolute estate, previously given, into an estate tail, and if so, as slaves are personal property, the limitation over is too remote; and further, that there are no words in the will which restrain the dying without issue to the time of the death of the legatee. The remainder is to take effect when either of the immediate legatees should die without a lawful heir of his or her body. The gift in remainder is a gift to the stock, and is limited on a contingency too remote to be allowed by the policy of the law.
In our opinion this vexed and long contested question is conclusively and for ever put to rest by the Court of Errors, in New York, in the case of Paterson vs. Ellis.
A definite failure of issue is when a precise time is fixed by the will for a failure of issue, as if the devisee dies without lawful issue living at the time of his death. An indefinite failure of issue is a proposition exactly the reverse, and means a failure of issue whenever it shall happen sooner or later without any fixed or definite period within which it must happen. An executory devise upon a definite failure of issue is valid within the period prescribed by law. But upon an indefinite failure of issue it is void because it might tie up property for generations to come.
We are, therefore, of the opinion that the terms dying without issue, dying without leaving issue, or dying without heirs lawfully begotten of their bodies, all mean one and the same thing, an indefinite failure of issue, and they will not support an executory devise unless there are some other words in the will evidently restricting and limiting their general meaning. The terms “ the surviving one,” are the only words used in this will which can make this devise over good in its inception, and, therefore, if they can sustain it at all, it must be upon the ground that the testator intended to confine the contingency to the life of Thomas Walker, and if it did not happen in his life time, the property became indefeasible in Nancy Walker upon his death. Thomas Walker married, had issue, and died leaving Nancy Walker still living. The present complainant claims the property in question as the heir at law, and the legal representative, of Thomas Walker, deceased, and alleges that the property became vested in him on the death of Nancy Walker, which happened before she arrived at the age of twenty-one. Chancellor Kent says “the American cases, without adopting, absolutely, the distinction in Forth vs. Chapman, are disposed to lay hold of slighter circumstances in bequests of chattels than in devises of real estate, to sustain the limitation over, and this is the extent to which they have gone with the distinction.” The rule will be found to go farther than it is here laid down in many of the modern cases. 2 Kent's Com. 286, 353. In Lillibridge vs. Adie, 1 Mason 236, Justice Story remarks, “in respect to terms of years, and other personal estate, courts have very much inclined to lay hold of any words to tie up the generality of the expression, dying without issue, and restrict its meaning.” The courts, according to Fearne, “ lay hold, with avidity, of any circumstance, however slight, and create almost imperceptible shades of distinction to support limitations over of personal estates.” Fearne on Executory Devises, by Powell, 186, 239, 259; Doe vs. Lyde, 1 T. R. 593; Dashiell vs. Dashiell, 1 Harr. and Gill. 127. The cases which deny the restricting effect of- the term survivors have of late years been entirely overruled even as to real estate, much more as to personal property. In Hughes vs. Sayer, 1 P. W’ms 534, the testator devised his estate to several persons, and upon either of them dying without children, then to the survivor. It was held that the word children was equivalent to issue, and that it was a devise over of the personal estate, on her dying without children living at the death of the party, and that the court could not regard it in any other sense, because the immediate limitation over was to the surviving devisee. So in Massey vs. Hudson, 2 Meriv. 130; and in Wotten vs. Andrews, 2 Bingh. 126. See also Lampley vs. Blower, 3 Atk. 396.
The question whether a limitation over to the survivor or survivors of two or more persons, or to the other or others dying without issue is confined to a definite or indefinite period of time, has been much discussed of late years in the courts of New-York, and the point is now considered conclusively settled in that State. The first case, Fesdick vs. Cornell, 1 J. R. 440, was upon a will which declared that if any of the devisees should happen to die without heirs male of their own bodies, then the land should return to their survivors, to be equally divided between them. The court held the limitation over valid, as being on a definite failure of issue, the term surviving devisee restricting the generality of the expression. In Jackson vs. Blanshan, 3 J. R. 292, the testator, by will, devised all his real and personal estate to six children, share and share alike, but if any of them died before arriving at full age, or without lawful issue, that then his or her or their part or share should devolve upon, and be equally divided among, the surviving children, and to their heirs and assigns forever. That case is precisely similar to the one now under consideration, and the terms of the devises are almost literally the same. The court held the devise over to be valid, and they farther held that the share of one of the sons, who died without issue after the death of some other of the children who left issue, went not to the heirs of the deceased children, but solely to the surviving child. The decision of that case is conclusive of the question now before us; for if the term “surviving one” can be considered as restricting the limitation, then it solely refers to and limits the contingency to the life of Thomas Walker. He dying before Nancy Walker, of course the estate never vested, because the contingency never happened upon which it was made to depend. The same rule of construction was held in Fairfield vs. Morgan, 2 New Rep. 38; Denn vs. Kemeys, 9 East 366; Eastman vs. Baker, 1 Taunt. 174. In Moffett vs. Strong, 10 J. R. 12, the testator devised his personal property to his heirs, and the proviso was, “ if any of my sons should die without lawful issue, that his or their part or parts should be equally divided among the survivors.” The court held that the term survivor restricted the limitation and confined it to a defini-nite period of time, for it could not be contended that the estate could vest in the survivor after an indefinite failure of issue, as that event might not happen till long after his death. The whole doctrine was again reviewed in Jackson vs. Staats, 11 J. R. 334, and Anderson vs. Jackson, 16 J. R. 382, and in Wilkes vs. Lion, 2 Cow. 336, in which it was re-affirmed and finally settled. Richardson vs. Noyes, 2 Mass. 56; Keating vs. Reynolds, 2 Bay 80. From all these authorities we conclude that the term surviving one is a term of much import, and the better opinion seems to be that it carries with it the idea of the longest liver at the death of the first taker, and that it means a definite failure of issue. It is clear to our minds, from the express words of the will, that the testator, in the present instance, intended the devise over as a personal benefit to Thomas Walker, and that being the case, the failure of issue, or death under twenty-one years of age of Nancy Walker, must have happened in his lifetime, to have divested her estate in the slave, Sarah, and to have vested it in him. Another rule, equally applicable to the case now before us is, that when there are clear words of gift, creating a vested interest, the court will never permit the absolute gift to be defeated, unless it be perfectly manifest that the very case has happened it was intended the will should happen. Roper on Legacies 414, and in Harrison vs. Foreman, 3 Ves. 209, and Smither vs. Willock, it was declared that it must be determined upon the words of the will; there was a vested interest, which was to be divested only upon a given contingency ; and the single question is, whether or not the contingency has happened ? According to this rule, if legacies be given to A. and B., and if either die during the life of D., then to the survivor living at D.’s death, and both die before D.; as the bequests vested in A. and B. at the testator’s decease, subject to a contingency which did not happen, the interests which vested conditionally in the legatees became absolute in both of them, upon the death of the survivor before D. In Smither vs. Willock, 9 Ves. 233, the bequest was of personal property, and the produce from the sale of real estate to the testator’s wife for life, with the remainder as to the capital, after her decease, to be divided among the testator’s brothers and sisters, but if any of them died before the wife, their shares were to be distributed among the children. One of the brothers died during the life of the wife without issue; and Sir Wm. Gsant declared the share of the deceased brother to be vested, subject to be divested in the event only of his death before the testator’s widow, leaving children; which contingency not having happened, the brother’s personal representatives were entitled to the estate. In Sturgess vs. Pearson, 4 Mad. 411, the s,ame principle is asserted. The case was upon a bequest to the devisee for life, and the capital, after her death, to be divided among her three children, or such of them as should be living at her decease, payable at twenty-one. The three children died before their mother, and it was decided that the children took vested interests, which were only to be divested in the event of there being some, or one of them living at the mother’s death, an event which did not happen, for there was not one child in existence at that period. The necessary result of which was, that the personal representatives of the children became entitled to the legacy, upon the death of the tenant for life. A. hath three daughters, and devises to them £300 each, to be paid at the age of twenty-one years, or day of marriage, which should first happen; if either of them should die before the said times, then her portion to be distributed between the survivors. The eldest marries, takes and dies, leaving issue ; the youngest dies before she is either married or attains the age of twenty-one; and the second survives. And the question was, whether the second surviving should have all the portion of the youngest, or whether the chil-den of the eldest should have a share. It was resolved that the second should have the whole of the estate; and the words “equally divided” imply that they should be sharers, if that was to be understood reddendo singula singulis, in case two of them had survived. Wilson vs. Ordeoy is also directly in point. Where the share of a brother is to go to a surviving, brother upon a contingency his issue cannot take; but there must be intestacy. That is the case directly before the court. Here the heirs of Tilomas Walker cannot lake, because he died before the contingency happened, upon which the estate is made dependent. Of course nothing can vest by the will in his heirs. Nancy Walker dying before she arrived at the age of twenty-one, or without leaving children, the interest vested in her by the will became an estate of intestacy, provided she was incompetent, or failed, to make her will, disposing of the property. Davidson vs. Dallas, 14 Ves. 572; Kilpatrick vs. Kilpatrick, 13 Ves. 476; Hulbert vs. Emerson, 16 Mass. 241; Jackson vs. Blanshan, 3 J. R. 292; Moffet vs. Strong, 10 J. R. 12. In Lion vs. Burtiss, 20 J. R. 488, where the devise was of a separate property to each of two sons, and if either should depart this life without lawful issue, his share or part to go to the survivor. Chief Justice Cpbkcee said, “ the surviving son was to inherit that part devised to the son who should first die without lawful issue, thus clearly denoting an intention that the surviving son should be personally benefited by enjoying the estate which his brother had left without issue to inherit it.” See also Jackson vs. Thompson, 6 Cow. 178; Pelletreau vs. Jackson, 11 Wend. 121. The decisions of the courts of New-York have been affirmed in the Supreme Court of the United States in the case of Jackson vs. Chew, 12 Wheaton 153; and of Waring vs. Jackson, 1 Peters 570. The rule, as above stated, may now be considered as the established law of lhe land; and in Wotten vs. Andrews, 1 Bing. 126, it is expressly laid down, that survivor or survivors mean not the surviving stocks, but the surviving children. If this be the case, then the testator, William Walker, must have intended that his son, Thomas, should not succeed to the estate of his daughter, Nancy, unless he was living, or surviving Nancy, at her death. If the estate, then, never passed to or vested in Thomas Walker, as it clearly did not, because the contingency upon which it depended never happened, to wit, his surviving Nancy, then it necessarily follows, that his son, William C. Walker, cannot take, as the heir at law or legal representative of his father, by virtue of the will now under consideration.
The respondent claims the property in question by virtue of a will, regularly made and executed by Nancy Walker, bearing date the 23d April, 1817, and which was duly proved and recorded in the State of Kentucky, in which she devised the slave and her increase to her mother, Elizabeth Moody, formerly Elizabeth Walker. The question now to be decided is, was Nancy Walker, according to the laws of Kentucky, which must govern in this case, capable of devising the slaves in controversy, she being under the age of twenty-one years. This point is easy of solution. The statute of that State, as well as the adjudications upon it, conclusively shows that no person under the age of twenty-one years is competent to devise real estate or slaves by will. Walton’s heirs vs. Walton’s ex’rs, et al., 7 Monroe 58. This being the case, if clearly follows, that as Nancy Walker is shown by the bill and answer to be about 18 or 19 years of age, when she made the will, she was therefore wholly incapable, by reason of her minority, of conveying any interest whatever to her mother in the slaves by devise. What disposition, then, do the laws of Kentucky make in regard to such distribution of them ? She being incapable of devising them, of course the estate became intestate upon her death.
The act of 1788, of Kentucky, declares that slaves shall descend as real estate, and the act 1785 of that State contains this provision, “ that if any person die intestate, the real estate of inheritance shall pass in parcenary to his kindred, male and female, in the following course” — that is to say: “First, to his children and descendants, if any there be. Secondly, if there be no children, or their descendants, then to his father; and thirdly, if there be no father, then to his mother, brother and sisters, and their descendants, or such of them as there be.”
The bill and answer expressly shew and admit that Nancy Walker died under the age of twenty-one years, without issue, leaving no father living, and that at the time of her death her mother, Elizabeth Moody, and several of her brothers, or their descendants, were then living; and that since her death, her mother has departed this life, leaving her husband, George Moody, still living.
According to the statute of descents and distributions in force in Kentucky, her mother, Elizabeth Moody, and her brothers and their descendants succeeded to her estate of the slave, Sarah, and her increase, in equal and rateable proportions, share and share alike. And George Moody, who intermarried with her mother, and who is still living, took a life estate in the same as tenant by the curtesy: Provided, he had issue born alive of such marriage. The cases of Pinckard vs. Smith, Lit. Sel. Cas. 331; Scroggin vs. Allen, 2 J. J. Marshall 467; Lytle vs. Rowton, 1 Marshall 515; and Morehead and Brown’s Dig., 560 to 566, clearly establish the distribution of the estate of Nancy Walker, according to the rule here laid down.
If the view we have taken of this case be correct, the decree of the court below was evidently erroneous, for it passed the whole property in controversy, to the complainant, William C. Walker, in exclusion of her mother and brothers or their descendants, who were entitled to equal distribution of her estate. The decree must, therefore, be reversed with costs, and the cause remanded, to be proceeded in agreeably to the opinion here delivered, with instructions that a reasonable time be allowed the complainant to make the legal heirs and representatives of Nancy Walker proper parties to this suit, and if he shall fail to do so, that his bill be then dismissed without prejudice.