Greek, C. J.
The first point raised by the demurrer in this cause is, that it is not sufficiently shewn by the declaration that the plaintiffs are entitled to any estate iu the premises, wherein the waste is charged to have been committed.
The plaintiffs claim title under the will of Elizabeth Wilmurt, and the validity of the objection depends upon the true construction of that will. The declaration states that Elizabeth Wilmurt, by her last will and testament in writing, devised the lands and tenements in question, with the appurtenances, to her daughter, Sarah Ann Wilmurt, and her heirs forever: and by the same will further gave to Sarah Ann, Rose and Elizabeth W. Heyer, and their and each of their heirs forever, the reversion of the same lands and tenements, in case her daughter, Sarali Ann Wilmurt, should depart this life without leaving lawful issue. "By the terms of this devise it is clear that at common law, Sarah Ann Wilmurt would have taken an estate tail in the devised premises. Ko rule of construction is better settled than that a devise in fee with a limitation over opon an indefinite failure of issue, constitutes an estate in fee tail. And no rule has been more frequently discussed and more repeatedly decided, both in England and America, than that under the terms of the devise, the limitation over is upon an indefinite failure of issue. The authorities upon this point are believed to be uniform. This construction is of course liable to be defeated, if an intention appears upon the face of the will to limit the failure of issue to the death of the first taker. There is a class of eases referred to upon the argument where the use of the term “ survivor ” or “ surviving ” has been held to indicate such intent on the part of the testator; and consequently, to convert the estate devised from a fee tail, into a fee simple conditional, with a limitation over by way of executory devise.
There is nothing, however, upon the face of the present will [486] to indicate such an intent on the part, of the testator. The devise over is clearly upon an indefinite failure of issue, and vests therefore, in Sarah Ann Wilmurt at the common law, an estate tail. By operation of the 11th section of the act directing the descent of real estates, (B. Stat. 241) (a) Sarah Ann Wilmurt, the first devisee in tail, took an estate for life only, with remainder over in fee to her children, as tenants in common.
The-declaration, therefore, shews that the plaintiffs, who are the'children of Sarah Ann Wilmurt, have an estate in the devised premises. Upon this ground the demurrer cannot be sustained.
The second point relied on, in support of the demurrer is that it is not averred in the declaration, that the will, under which the plaintiffs claim, was executed with the formalities required to constitute a valid devise of real estate.
The decláration avers that the will was in writing, but not that it was signed and published by the testator, in the presence of three subscribing witnesses.
The authorities are very generally agreed, that in pleading a will, it must be pleaded to be in writing, pursuant to the statute of wills, 32 Hen. 8—2 Salk. 519, pl. 17; Birch v. Bellamy, 12 Mod. 540; 1 Saund. 276, c. note; 2 Bac. ab. “Stat.” L. 3; Stephens Plead. 332; Gould’s Plead, iv. § 47. And both the early and the later precedents conform to this requirement. '
The rule is stated to be, that when a statute makes writing necessary to a common law matter, where writing was not necessary at common law, you need not plead the thing to be in writing: but where a thing is originally made by statute, and required to be in writing, you must plead it, with all the circumstances required by the act.
If the principle be sound, (and I do not find it any where questioned,) it would seem to be equally necessary to state all the circumstances required by the original act, not only — but all the circumstances required by subsequent acts upon the same subject.
[487] We find it accordingly laid down, that where the power to do an act was originally granted by a statute, it must be shewn in pleading that the act was done according to the direction of the statute, and of every subsequent statute, relative to the subject. If a will of lands be pleaded, it must be shewn that the will is in writing, as by the 32d Hen. 8 Ch. 1, (by which power to make such will was first given) is directed. And it must likewise be shewn that the requisites made necessary to the validity of such will by the 29th Car. 2 Cap. 3, have been complied with. Bac. ab. “Statutes” L. 3.
“ The same reasons,” (says Judge Gould,) “which require a devise to be pleaded as being in writing, render it equally necessary to allege an observance of all the other requisites prescribed by statute as essential to its validity.” These requisites being expressly made as indispensable to the validity of such instruments as writing itself. And hence, he who now pleads a devise, must aver not only that it is in writing, as provided by the statute of wills, (32 Hen. 8,) but also that it is signed and attested according to the provision of the statute oí frauds, (29 Car. II c. 2 § 5.) For this latter enactment, relating to the same subject matter as that of the statute of wills, and being in effect only supplementary to it, is to be taken notice of in pleading, as if it formed a part of the elder statute. Gould’s Pl. Chap, iv, § 48.
These authorities, standing uncontradicted, would seem to be decisive of the question, and yet it is worthy of notice that with a single exception, to be found in 2d Chitty, 591, the precedents in the English books simply aver the will to be in writing, without mention of the requisites prescribed by the statute of Charles. 1 Saund. 250; 2 Saund.1. 234; 1 Lilly’s Ent. 207; 3 Went. Pl. 492; 3 Chitty Pl. 1361.
The earlier and more authorative precedents, to be found in Saunders, are prior in point of time to the statute of frauds, and of course shed no light directly upon the question; and yet it is remarkable that so distinguished and accurate a pleader as Sergeant Williams, in his notes to those precedents, written after the enactment of the statute of frauds, should have made [488] no allusion whatever to the important changes introduced by this statute, if he regarded the statute as rendering the averment necessary. His statement that it is necessary to aver that the will is in writing, as required by the statute of wills, and his entire silence in respect to the requisites of the statute of frauds, would seem to be indicative of his opinion upon the point.
In Everara v. Paterson, 8 Taunt. 628, one of the counsel is reported as saying, in argument, that “ though in an anonymous case, it was once said that in pleading a will of land, it was necessary to show it was executed according to the statute, because a will is wholly the creature of a statute, yet it is unnecessary so to do, and the practice is universally contrary.” “ To which,” (the report adds,) “ the court assented.”
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Greek, C. J.
The first point raised by the demurrer in this cause is, that it is not sufficiently shewn by the declaration that the plaintiffs are entitled to any estate iu the premises, wherein the waste is charged to have been committed.
The plaintiffs claim title under the will of Elizabeth Wilmurt, and the validity of the objection depends upon the true construction of that will. The declaration states that Elizabeth Wilmurt, by her last will and testament in writing, devised the lands and tenements in question, with the appurtenances, to her daughter, Sarah Ann Wilmurt, and her heirs forever: and by the same will further gave to Sarah Ann, Rose and Elizabeth W. Heyer, and their and each of their heirs forever, the reversion of the same lands and tenements, in case her daughter, Sarali Ann Wilmurt, should depart this life without leaving lawful issue. "By the terms of this devise it is clear that at common law, Sarah Ann Wilmurt would have taken an estate tail in the devised premises. Ko rule of construction is better settled than that a devise in fee with a limitation over opon an indefinite failure of issue, constitutes an estate in fee tail. And no rule has been more frequently discussed and more repeatedly decided, both in England and America, than that under the terms of the devise, the limitation over is upon an indefinite failure of issue. The authorities upon this point are believed to be uniform. This construction is of course liable to be defeated, if an intention appears upon the face of the will to limit the failure of issue to the death of the first taker. There is a class of eases referred to upon the argument where the use of the term “ survivor ” or “ surviving ” has been held to indicate such intent on the part of the testator; and consequently, to convert the estate devised from a fee tail, into a fee simple conditional, with a limitation over by way of executory devise.
There is nothing, however, upon the face of the present will [486] to indicate such an intent on the part, of the testator. The devise over is clearly upon an indefinite failure of issue, and vests therefore, in Sarah Ann Wilmurt at the common law, an estate tail. By operation of the 11th section of the act directing the descent of real estates, (B. Stat. 241) (a) Sarah Ann Wilmurt, the first devisee in tail, took an estate for life only, with remainder over in fee to her children, as tenants in common.
The-declaration, therefore, shews that the plaintiffs, who are the'children of Sarah Ann Wilmurt, have an estate in the devised premises. Upon this ground the demurrer cannot be sustained.
The second point relied on, in support of the demurrer is that it is not averred in the declaration, that the will, under which the plaintiffs claim, was executed with the formalities required to constitute a valid devise of real estate.
The decláration avers that the will was in writing, but not that it was signed and published by the testator, in the presence of three subscribing witnesses.
The authorities are very generally agreed, that in pleading a will, it must be pleaded to be in writing, pursuant to the statute of wills, 32 Hen. 8—2 Salk. 519, pl. 17; Birch v. Bellamy, 12 Mod. 540; 1 Saund. 276, c. note; 2 Bac. ab. “Stat.” L. 3; Stephens Plead. 332; Gould’s Plead, iv. § 47. And both the early and the later precedents conform to this requirement. '
The rule is stated to be, that when a statute makes writing necessary to a common law matter, where writing was not necessary at common law, you need not plead the thing to be in writing: but where a thing is originally made by statute, and required to be in writing, you must plead it, with all the circumstances required by the act.
If the principle be sound, (and I do not find it any where questioned,) it would seem to be equally necessary to state all the circumstances required by the original act, not only — but all the circumstances required by subsequent acts upon the same subject.
[487] We find it accordingly laid down, that where the power to do an act was originally granted by a statute, it must be shewn in pleading that the act was done according to the direction of the statute, and of every subsequent statute, relative to the subject. If a will of lands be pleaded, it must be shewn that the will is in writing, as by the 32d Hen. 8 Ch. 1, (by which power to make such will was first given) is directed. And it must likewise be shewn that the requisites made necessary to the validity of such will by the 29th Car. 2 Cap. 3, have been complied with. Bac. ab. “Statutes” L. 3.
“ The same reasons,” (says Judge Gould,) “which require a devise to be pleaded as being in writing, render it equally necessary to allege an observance of all the other requisites prescribed by statute as essential to its validity.” These requisites being expressly made as indispensable to the validity of such instruments as writing itself. And hence, he who now pleads a devise, must aver not only that it is in writing, as provided by the statute of wills, (32 Hen. 8,) but also that it is signed and attested according to the provision of the statute oí frauds, (29 Car. II c. 2 § 5.) For this latter enactment, relating to the same subject matter as that of the statute of wills, and being in effect only supplementary to it, is to be taken notice of in pleading, as if it formed a part of the elder statute. Gould’s Pl. Chap, iv, § 48.
These authorities, standing uncontradicted, would seem to be decisive of the question, and yet it is worthy of notice that with a single exception, to be found in 2d Chitty, 591, the precedents in the English books simply aver the will to be in writing, without mention of the requisites prescribed by the statute of Charles. 1 Saund. 250; 2 Saund.1. 234; 1 Lilly’s Ent. 207; 3 Went. Pl. 492; 3 Chitty Pl. 1361.
The earlier and more authorative precedents, to be found in Saunders, are prior in point of time to the statute of frauds, and of course shed no light directly upon the question; and yet it is remarkable that so distinguished and accurate a pleader as Sergeant Williams, in his notes to those precedents, written after the enactment of the statute of frauds, should have made [488] no allusion whatever to the important changes introduced by this statute, if he regarded the statute as rendering the averment necessary. His statement that it is necessary to aver that the will is in writing, as required by the statute of wills, and his entire silence in respect to the requisites of the statute of frauds, would seem to be indicative of his opinion upon the point.
In Everara v. Paterson, 8 Taunt. 628, one of the counsel is reported as saying, in argument, that “ though in an anonymous case, it was once said that in pleading a will of land, it was necessary to show it was executed according to the statute, because a will is wholly the creature of a statute, yet it is unnecessary so to do, and the practice is universally contrary.” “ To which,” (the report adds,) “ the court assented.”
In .a note to 2d Chitty’s Pl. 591, it is said that it is not necessary in pleading a will to state that the solemnities required by the statutes against frauds have been observed, and the case of Davis V. Reeves, Vern. & Scriv. 497, is cited in support of the position.
Whatever doubts may be created by this conflict of opinion as to the proper practice under the English statutes, none I think can exist under our act. In this State, the same statute and the same clause of the statute, which requires the will to be in writing, requires also that it should be signed and published in the presence of three subscribing witnesses. If it be necessary to aver in pleading the existence of the one requisite, it must be equally essential to aver the existence of the other. Both authority and precedent concur in this conclusion, that it is essential in good pleading to aver the will of real estate to be in writing, and I am of opinion that it is equally essential to aver that the will was signed and published by the testator, in the presence of three subscribing witnesses.
If this were a new question I should be disposed to hold the declaration good, and adopting the views of an eminent legal tribunal upon an analogous point to say, that it is enough in pleading to aver that the land was devised by will, without averring that the will was executed in pursuance of the require[489] ments of the statute, because it could not be such a will as to pass the title, unless it conformed to all the requirements of the statute. Elliott v. Cowper, 1 Stran. 609.
But I cannot disregard the uniform practice of 200 years, and sitting here I do not feel myself at liberty to say anything calculated to disturb it.
Upon this point I am of opinion that judgment must be for the demurrant.
Carpenter, J. The plaintiffs set out in the count their title, which they derive under the will of Elizabeth Wilmurt, deceased. As stated in the count, she devised the premises in question “ to her daughter, Sarah Ann Wilmurt, and her heirs forever ” — and by the same will she “ further gave to S. A. R. and E. W. H. and their heirs &c. forever, the reversion of the sa.me 'lands, &c., in case her daughter, S. A. W., should depart this life without leaving lawful issue.” The case set up on the part of the plaintiffs is, that by this devise the daughter took an estate which under the statute de donis would be an estate tail, but that under the act of 1820, (Rev. Laws 774,) it became in her an estate for life only, with a vested remainder to her children, the plaintiffs in this action. On the part of the defendants, who have demurred to the count, it is contended that this devise conveys an estate in fee to the first taker, only liable to be defeated by her dying without issue, with a remainder over in such case by way of executory devise. If held to be a defeasible fee in the daughter, the plaintiffs have no vested estate of inheritance, and cannot maintain the present action.
Where the devise over depends on a definite failure of issue, an estate in fee with executory devise is created; but where the devise is made to depend on an indefinite failure of issue, a contingent remainder, limited on an estate tail, is created. A definite failure of issue is when a precise time is fixed by the will for the failure of issue, as in case of a devise to A., with a limitation over, if he dies without lawful issue living at the time of his death. An indefinite failure means the period when the descendants of the first taker shall become extinct, without [490] reference to any pai’ticular period. Upon a devise to the first taker by words which standing alone would carry a fee, a limitation over on a failure of issue has been held by implication to cut down the estate given to a fee tail; the words dying without issue, or without leaving lawful issue, and the like, when applied to real estate, being held to importa definite failure of issue. 4 Kent 274, (5th Ed.); 2 Pow. Dev. by Jarman, 564, (Law Lib. Ed.); 2 Jarm. Wills 417, 427.
Such is still the construction where there are no expressions in the will controlling the legal meaning of the words, and pointing to a definite rather to an indefinite failure of issue. The rule is the same in this country as in England, although here, as has been said, it seems to be not quite so stubborn and inflexible in its nature, and more easily turned aside by the force of slight additional expressions in the will. The eases cited by the defendants’ counsel belong to a series of cases which have established in this country, contrary to the weight of authority in England, that the word “survivor,” and other words of similar import, when used in connection with the words “ dying without issue,” take the case out of the general rule and give the first devisee a fee simple, determinable by his death without issue then living. The doctrine of these cases, although much questioned, has been fully adopted in this state, by the decision in Den v. Allaire. But in all these cases, the general rule was fully admitted. It was said by Whitehead, J. in the case last cited, (Speno. 9,) that the words dying without issue, independent of other expressions to control their meaning, had uniformly received a construction, which it would endanger titles to real estate to call in question. See Den v. Schenck, 3 Halst. 29; Den v. Howell, Spenc. 411, 415. It is scarcely necessary to say so much of a rule so unquestionable. In this case there is nothing to control the technical meaning of the words used. The devisee, under the statute de donis, would give an estate tail to the daughter, but by our act it is cut down to an estate for life in the first taker, with remainder in fee to her children.
The other objection raised by the demurrer in this case is, [491] that the formalities necessary to pass lands by devise are not averred. It is said that in pleading a devise of lands, it must be alleged to have been made in writing, because not valid at common law. 1 Saund. 276 note; Steph. Pl. 313; Anon. Salk. 519. It seems upon the reasons given for the rule to be supposed that it is necessary, not only to aver that it is writing, as provided by the statute of wills, (32 Hen. 8 ;) but also that it is signed and attested according to the provisions of the statute of frauds; 29 Car. 2 c. 3, § 5; Gould. Pl. iv. §§ 48, 49, p. 194. A distinction, however, has been taken between a declaration and plea, in the latter greater certainty being necessary than in the former. In one case it has been held that in a declaration it is not necessary under the statute of frauds, to show the thing to be in writing, but in the latter it must be so pleaded. Case v. Barber, T. Raym. 450; Steph. P. 375. And see Davis v. Reeves, Vem. & Seriven. 497, where it was held that it was sufficient to state, in pleading a will, that it had been executed in writing.
But whatever may be the rule in England, for the reasons given by the Chief Justice, I concur in the opinion that a title by devise in this State must be shown in pleading, to be by will executed according to the requirements of the statute, and unless the demandant shall apply for leave to amend, that judgment should be for the demurrant.
Eevius, J. concurred.
See 2 Zab. 430; Id. 521.
Cited in Moore v. Rake, 2 Dutch. 581-585.