Smith v. Chapman
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Opinion
On an appeal from a decree of the Superior Court of Chancery for the Richmond District, pronounced by the late Judge of that Court.
This case turned upon the construction of the will and codicils thereto annexed of William Carr the elder, which were made in the year 1790. So far as the present question is influenced by them, they may be resolved into the following parts :
1. A devise to Betsey Tebbs of sundry tracts of land particularly described, together with a negro woman Hannah and her children, during the life of the devisee; then to her child or children, if any living at her death, to be equally divided between them ; if none living, then to William and John Carr for life; then to be equally divided between their children..
2. To William Carr sundry tracts of land ; and, after the death of the testator’s widow, a negro woman named Agga and her children ; — during the natural life of the dev-isee, and after his decease to his child or children; if none, to John Carr and Betsey Tebbs for life; and then to be equally divided between their children.
3. To John Carr the lands on which the testator lived, after the death of his widow; and several other tracts of land in the will described, together with sundry negroes therein named; — during his life, and then to his child or children, if any living at his death ; if none, to Betsey Tebbs and William Carr during life; and then to their children to be equally divided.
In a codicil to the will, was the following clause: — “Should all my dear children die without issue of their bodies, my dear wife living, the life estate to go to my dear wife during her natural life ; the other half to T. C. S. L. and R. S. and T. C.’s children, namely, C. C. and J. during their natural lives ; then to their children, if any ; and, after the death of my wife, the whole of what she has for life in the last clause, to T. C. in trust for the forementioned children, and my trusty boys, D. and A. to be equally divided between them.”
*This will was dated on the 23d of January, 1790 ; soon after which the testator died, leaving a widow, the daughter Betsey, and his sons William and John, both infants and unmarried. Betsey at that time had several children.
William Carr the younger died on the 8th of November, 1801, intestate, leaving a widow, but no children. His widow intermarried with William Smith, (one of the appellants,) who filed a bill in the High Court of Chancery, claiming in right of his wife, (among other things,) dower in the lands which had been devised to her first husband, William Carr the younger.
The Court of Chancery dismissed the bill, from which decree an appeal was prayed to this Court.
Botts, for the appellants. This case, so important, as well from the great property depending upon it, as from the questions of law which it involves, turns wholly upon the construction of the will of William Carr the elder, and the codicils thereto annexed.
The point now to be discussed is, whether William Carr the younger took a fee, or an estate for life only : if the former, his widow is entitled to dower in the lands devised to-him ; if the latter, she is not entitled.
I shall contend that William Carr, the dev-isee, took a fee conditional at the common law, upon the four following distinct and sure grounds.
I. By the words in the devise to William’s “child or children,” when he had none, an express estate, in fee, in William, was-created.
II. That, if the first point should fail, yet, by the words in the devise over, “if none,” (i. e. no child or children,) “to John Carr, and Betsey Tebbs,” an implied estate in fee was created. — A distinction between a limitation to “children” in England, where they are not collectively heirs, and such a limitation in Virginia, where they are collectively heirs, will be relied on.
III. That by the limitation “should all my dear children die without issue of their bodies,” then over to his wife and the Chapman family, an implied fee would be raised —should the other points fail.
IV. “That upon the true construction of the will, the son William must, by necessary implication, to effectuate the manifest general intent of the testator, be construed to-take an estate in fee.”
The devise in question is, in effect, to William Carr the younger, during his natural life, and after his decease *to his child or children; if none, to John Carr and Betsey Tebbs ; and if all three die without lawful issue of their bodies, then to others.
Eor a long time it was contended that an express estate for life could not be turned into a fee. It is presumed, however, that gentlemen will not say that this is law at this day. A long list of cases might be cited to prove the old doctrine exploded.
It may be admitted that it was the plain and evident intention of the testator that William should take only an estate for his life ; but then the reason of confining it to an estate for lifevmust by the appellees be conceded to have been to preserve the inheritance for William’s posterity. To restrict it to a life estate in the first taker was the particular intent — to preserve the inheritance for the issue was the general intent. The former was the intended means, the latter the intended end. If the two intentions cannot stand together, the particular intent or the intended means shall be sacrificed to the general intent or the end.
That the two intentions cannot, in the principal case, prevail, according to the rules of law, and that the particular shall so yield to the general, seems abundantly proved by a long string of cases, of settled and unim-peached authority. The 1st is Shelly’s case, 21 Eliz.
The case was upon a covenant to lead to uses. “To Edward Shelly and his assigns, for, and during the term of his life without impeachment of waste, and after his decease to the use of C. for twenty-four years ; then [117]*117to the use of the heirs male of the body of the said Edward lawfully begotten, and the heirs male of the body of such heirs lawfully begotten ; and, for default of such issue, to the use of the heirs male of the body of John Shelly.”
It was ruled by eleven out of twelve Judges that Edward Shelly took an estate in tail male.
[In Lyles v. Gray, (Thomas Raymond’s Reports, 315,) the Court says, “the rule in Shelly’s case is positive law not to be reasoned upon. It is a land-mark, by which other cases are to be bounded.” In Douglas, 507, note, it is solemnly sanctioned. In Roy and others v. Garnet (2 Wash. Rep. p. 16,) the counsel for the life estate, admitted its authority, and the Court in that case, p. 31, say, “this (Shelly’s) case is constantly referred to, in most, if not all, the subsequent •cases; and its principle, as well as its authority is no where deniedv. also Black.
Com. 245 ; Ra.y. 334, 2 Eev. 60.]
*The 2d case, Lyles v. Gray, in 31 Car. II.
John Lyle, by covenant, was to stand seised to the use of himself for life, without impeachment of waste ; remainder to E. E. for, and during the term of his natural life ; and after his decease to his first son ; and in default thereof to the heirs male, &c.
Resolved, that E. E. took an estate tail.
3. The Attorney General v. Sutton, in 1721.
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On an appeal from a decree of the Superior Court of Chancery for the Richmond District, pronounced by the late Judge of that Court.
This case turned upon the construction of the will and codicils thereto annexed of William Carr the elder, which were made in the year 1790. So far as the present question is influenced by them, they may be resolved into the following parts :
1. A devise to Betsey Tebbs of sundry tracts of land particularly described, together with a negro woman Hannah and her children, during the life of the devisee; then to her child or children, if any living at her death, to be equally divided between them ; if none living, then to William and John Carr for life; then to be equally divided between their children..
2. To William Carr sundry tracts of land ; and, after the death of the testator’s widow, a negro woman named Agga and her children ; — during the natural life of the dev-isee, and after his decease to his child or children; if none, to John Carr and Betsey Tebbs for life; and then to be equally divided between their children.
3. To John Carr the lands on which the testator lived, after the death of his widow; and several other tracts of land in the will described, together with sundry negroes therein named; — during his life, and then to his child or children, if any living at his death ; if none, to Betsey Tebbs and William Carr during life; and then to their children to be equally divided.
In a codicil to the will, was the following clause: — “Should all my dear children die without issue of their bodies, my dear wife living, the life estate to go to my dear wife during her natural life ; the other half to T. C. S. L. and R. S. and T. C.’s children, namely, C. C. and J. during their natural lives ; then to their children, if any ; and, after the death of my wife, the whole of what she has for life in the last clause, to T. C. in trust for the forementioned children, and my trusty boys, D. and A. to be equally divided between them.”
*This will was dated on the 23d of January, 1790 ; soon after which the testator died, leaving a widow, the daughter Betsey, and his sons William and John, both infants and unmarried. Betsey at that time had several children.
William Carr the younger died on the 8th of November, 1801, intestate, leaving a widow, but no children. His widow intermarried with William Smith, (one of the appellants,) who filed a bill in the High Court of Chancery, claiming in right of his wife, (among other things,) dower in the lands which had been devised to her first husband, William Carr the younger.
The Court of Chancery dismissed the bill, from which decree an appeal was prayed to this Court.
Botts, for the appellants. This case, so important, as well from the great property depending upon it, as from the questions of law which it involves, turns wholly upon the construction of the will of William Carr the elder, and the codicils thereto annexed.
The point now to be discussed is, whether William Carr the younger took a fee, or an estate for life only : if the former, his widow is entitled to dower in the lands devised to-him ; if the latter, she is not entitled.
I shall contend that William Carr, the dev-isee, took a fee conditional at the common law, upon the four following distinct and sure grounds.
I. By the words in the devise to William’s “child or children,” when he had none, an express estate, in fee, in William, was-created.
II. That, if the first point should fail, yet, by the words in the devise over, “if none,” (i. e. no child or children,) “to John Carr, and Betsey Tebbs,” an implied estate in fee was created. — A distinction between a limitation to “children” in England, where they are not collectively heirs, and such a limitation in Virginia, where they are collectively heirs, will be relied on.
III. That by the limitation “should all my dear children die without issue of their bodies,” then over to his wife and the Chapman family, an implied fee would be raised —should the other points fail.
IV. “That upon the true construction of the will, the son William must, by necessary implication, to effectuate the manifest general intent of the testator, be construed to-take an estate in fee.”
The devise in question is, in effect, to William Carr the younger, during his natural life, and after his decease *to his child or children; if none, to John Carr and Betsey Tebbs ; and if all three die without lawful issue of their bodies, then to others.
Eor a long time it was contended that an express estate for life could not be turned into a fee. It is presumed, however, that gentlemen will not say that this is law at this day. A long list of cases might be cited to prove the old doctrine exploded.
It may be admitted that it was the plain and evident intention of the testator that William should take only an estate for his life ; but then the reason of confining it to an estate for lifevmust by the appellees be conceded to have been to preserve the inheritance for William’s posterity. To restrict it to a life estate in the first taker was the particular intent — to preserve the inheritance for the issue was the general intent. The former was the intended means, the latter the intended end. If the two intentions cannot stand together, the particular intent or the intended means shall be sacrificed to the general intent or the end.
That the two intentions cannot, in the principal case, prevail, according to the rules of law, and that the particular shall so yield to the general, seems abundantly proved by a long string of cases, of settled and unim-peached authority. The 1st is Shelly’s case, 21 Eliz.
The case was upon a covenant to lead to uses. “To Edward Shelly and his assigns, for, and during the term of his life without impeachment of waste, and after his decease to the use of C. for twenty-four years ; then [117]*117to the use of the heirs male of the body of the said Edward lawfully begotten, and the heirs male of the body of such heirs lawfully begotten ; and, for default of such issue, to the use of the heirs male of the body of John Shelly.”
It was ruled by eleven out of twelve Judges that Edward Shelly took an estate in tail male.
[In Lyles v. Gray, (Thomas Raymond’s Reports, 315,) the Court says, “the rule in Shelly’s case is positive law not to be reasoned upon. It is a land-mark, by which other cases are to be bounded.” In Douglas, 507, note, it is solemnly sanctioned. In Roy and others v. Garnet (2 Wash. Rep. p. 16,) the counsel for the life estate, admitted its authority, and the Court in that case, p. 31, say, “this (Shelly’s) case is constantly referred to, in most, if not all, the subsequent •cases; and its principle, as well as its authority is no where deniedv. also Black.
Com. 245 ; Ra.y. 334, 2 Eev. 60.]
*The 2d case, Lyles v. Gray, in 31 Car. II.
John Lyle, by covenant, was to stand seised to the use of himself for life, without impeachment of waste ; remainder to E. E. for, and during the term of his natural life ; and after his decease to his first son ; and in default thereof to the heirs male, &c.
Resolved, that E. E. took an estate tail.
3. The Attorney General v. Sutton, in 1721.
Devise to Thomas for life ; and afterwards to the first son or issue male of his body, and to the heirs male of such son ; remainder to Thomas’s second son, and his issue male in tail; and that immediately upon the death of Thomas without issue male, the estate should go over.
Adjudged that Thomas had a fee tail.
4. Goodright v. Pullen, in 1726.
Devise to A. for life ; and after his decease
to the heirs male of his body, and to his heirs forever ; and, for default of such heir male, to C. in fee.
Adjudged, that NT. took an estate tail, and the Court added, that
If a devise be to A. for life, (though the words without impeachment of' waste, or with power to make a jointure are put in,) and after bis decease to his heirs male ; A. takes an estate tail; and that this is so settled that it cannot be disputed ; — and furthermore,
A devise to A. for life, and, after his decease, to his issue, (without more words,) will give A. an estate tail.
5. Bale v. Coleman, in 1711.
Devise to A. for life, with power to make leases for 99 years ; remainder to the heirs male of his body.
Adjudged that A. took an estate tail.
6. Trevor y. Trevor, in 1720.
Marriage articles “To himself for life; remainder to the heirs of his body by his intended wife.” The Court agreed that if this were other than a marriage settlement, it would be an estate tail.
See Eewis Bowles’s case, to the same effect, in 13 Jac. I.; 11 Co. Rep, 79._
7. Garth v. Baldwin, in 1755.
Devise to A. for life ; and, after his death, to the heirs of his body.
Eord Hardwicke decreed an estate tail to A.
8. Eangly v. Baldwin, in 1707.
Devise to A. for life, without impeachment of waste; with a power to make a jointure; remainder to his 1st, *2d, 3d, 4 th, 5th, and 6th sons in tail; and, if
A. should die without issue male, then to
B. in fee.
9. Bernard and Eenton v. Reason.
The words “and, if he dies without issue, then to B. will turn an express estate for life in A. to an estate tail.”
10. Conlson v. Conlson, in 13 Geo. II.
11. Kingv. Burchell, in 1759.
12. Allason v. Clitheron.
13. Kingv. Helling-, in 24 Car. II.
14. Blackborne v. Édgley, inl7l9.
15. Long v. Earning,
16. Pinbttry v. Elkin, in 1719.
17. James’s claim in Superior Court of Pennsylvania,
The cases already cited are accurately abridged; and the Judges may save themselves the trouble of examining them, unless requested by the counsel on the other side ; but the three cases of Robinson v. Robinson —Doe, on the demise of Cook, v. Cooper— and Roy and others v. Garnet, are of such strength, and contain such clear and apt reasoning, that an inspection of them at large is requested.
18. Robinson v. Robinson, in 1756.
The devise was to E. H. for life and no longer ; and, after his decease, to such sons as he shall have lawfully begotten, taking the name of Robinson ; and, for default of such issue, to W. R. in fee.
The Judges of the Court of King’s Bench unanimously certified,
We are of opinion that, upon the true construction of the said will of the testator George Robinson, the said E. H. must (by necessary implication to effectuate the manifest general intent of the said testator) be construed to take an estate in tail male ; (he and the heirs of his body taking the name of Robinson ;) notwithstanding the express estate devised to the said E. H. for his life and no longer.”
The chancellor confirmed the certificate : and, upon an appeal, the twelve Judges unanimously concurred, and the Lords affirmed the decree.
19. Doe, oil dem. of Cook, v. Cooper,
The devise was to R. C. for the term only of his natural life ; and, after his decease, [118]*118to his issue, as tenants in common ; but in case he died without issue, then to R. H. in fee.
^Adjudged, that to effectuate the general intent, R. C. took an estate tail.
20. Roy and others v. Garnett,
Devise to James for and during the term of his natural life ; remainder to the son Muscoe in fee ; in trust for the use of the first and every other, son of James, who should survive him, in tail male, equally to be divided ; but, if James should die without issue male, then to Muscoe, &c.
Upon the ground of the interposition of the legal estate in fee, in trust, between the estate for life and the implied remainder to his issue mail, it was determined to be only an estate tail in remainder, which could never take effect; affirming, nevertheless, that an express estate for life may be turned into an estate tail by implication.
The whole of the English law upon this point is collected and methodised in 2 Fonb-lanque, page 58, in the notes.
But, though the cases from 1 Burrow, 39, and 1 Fast, 229, be stronger than the following case, yet, from the more striking similarity between that and the case now in question, it is selected as the one by which the nature of the estate taken by William Carr, the devisee, can be at once unerringly tested.
21. Roe, on the demise of Dodson, v. Grew et al. in 1767.
Devise to G. G. [Wm. Carr] to hold for and during the term of his natural life; and, from and after his decease, to the use of the issue male, of his body lawfully to be begotten, and to the heirs male of such issue ; and, for want of such issue, to D. the lessor of the plaintiff. [John Carr and Betsey Tebbs.]
[As a particular comparison of the two cases is intended to be resumed hereafter, when every difference between them will be marked, I will, for the present, content myself with requesting that for ‘‘G. G.” “Wm. Carr,” may be read; and for “D.” that “John Carr and Betsey Tebbs” may be substituted, in the case just stated ; and that the opinions of the Judges may be read with such variations in terms only, as the words used in the two cases will justify. They will be found, in effect, to be precisely the same.]
WIDMOT, Chief Justice.
The intention of the testator was clearly to give G. G. [Wm. Carr] an estate for life only; but his intention also clearly was, that all the sons [children and issue] of G. G. [Wm. Carr] should take [in succession.] Both of these ^intentions cannot take place; for if the devisee, G. G. [Wm. Carr] took only an estate for life, his sons [children] could never have taken : and although it eventually happened that he had no sons, [children,] yet we must consider this case as if he had had issue ; therefore the Court must put themselves in the place of the testator, and determine as be would have done, if he had been told that both of his iutentions could not take effect by the rules of law, and had been asked, which of them he desired should take effect, and stand, if both could not. He certainly would have answered that so long as G. G. [Wm. Carr] had any issue male, [children or issue,] the premises should not go to the lessor of the plaintiff. [Betsey Tebbs and John Carr.] The weightiest intention was, that all the sons [children or issue] of G. G. [Wm. Carr] should take; [in succession ;] and to do that G. G. [Wm. Carr] must take an estate tail. [V. Hargr. U. Tracts, 503 ; Brown’s Ch. Rep. 280.]
CRIVR, Justice.
In the present case the great intention is to give [in succession] to all the sons [issue] of G. G. [Wm. Carr ;] which cannot be without construing it an
BATHURST, Justice.-
It is a rule that where the ancestor takes an estate of freehold, if the word issue in a will comes after, it is a word of limitation. Where there appears a particular intent, and a general intent, the genei-alintent must take place.— The great view here was, that the land should not go over to D. [J. C. and B. T.] so long as G. G. [Wm. Carr] had issue ; but that general intent cannot take effect unless G. G. [Wm. Carr] be tenant in tail.
Upon an attentive examination of this case, it will be found that the Judges’ opinions are pointedly fitted to the case now in discussion.
The twenty-one cases, condensed, exposed, and numbered in the order in which they have been cited, (in all of which estates for life were expressly limited) may be put into the following classes :
247 *OLASS I.
Cases, in which, "without impeachment of waste,” “with a power to make a jointure, or leases,” &c. or words of like import, were added to an express estate for life.
No.
1 Shelley’s case. 1
2 Lyle v. Gray. 3
3 Goodright v. Pullen. 4
4 Bale v. Coleman. 5
5 Bowles’s case. 6
6 Roy and others v. Garnett... 20'
7 Langley v. Baldwin. 8
8 Blackborne v. Edgley. 14
CLASS II.
Cases, in which the words of limitation, express, or implied, are to the heirs of the body.
1 Garth v. Baldwin. 7
2 Coulson v. Coulson. 10
3 Shelley’s case. 1
4 Lyle v. Gray. 2
5 Goodright v. Pullen. 4
6 Bale v. Coleman. 5
7 Blackborne v. Edgley. 14
8 King v. Burchell. 11
CLASS III.
Cases, in which the word of limitation was “issue.”
1 Goodright v. Pullen. 4
2 James’s Claim. 17
3 Blackborne v. Edgley. 14
4 In same case. 14
5 Pinbury v. Elkin. 16
6 Allason v. Clitheron. 12
7 Kingv. Burchell. 11
8 Attorney General v. Sutton. 3
9 Roe y. Dodson . 21
10 Bowles’s case. 6
11 Langley v. Baldwin. 8
12 King v. Melling. 13
13 Roy Y. Garnett. 20
14 Doe v. Cooper. 19
16 Robinson v. Robinson. 18
CLASS IV.
Cases, in which words of limitation* have been en-[119]*119grafted on words of limitation; as, “to A. for life, and thereafter to his issne, and the heirs of that issue.”
1 Sh elley’s case... 1
2 Lyle v. Gray. 2
3 Attorney General v. Sutton. 3
5 Roe. ex dem. Dodson, y. Grew. 21
8 Langley v. Baldwin. 8
CLASS V.
A case, in which an express estate tail was given to al! the sons and daughters of the first taker; and in which an estate tail was adiudged in the first taker; though expressly declared for life.
1 Blackborne v. Edg'ley... If
CLASS VI.
Cases, m which estates fail were adiudged on express, and also on implied limitation: in opposition to the life estate expressly declared.
t Shelley's case. 1
2 Goodright v. Pullen. 4
3 Kingv. Burehell... 11
-1 Doe v. Cooper. 19
CLASS VII.
Cases, where the words of limitation only were express.
3 Same v. Same. 4
3 Bale v. Coleman. 5
i Trevor v. Trevor. 6
5 Bowles's case. 6
8 Garth v. Baldwin. 7
7 James's Claim. 17
8 King v. Helling. 13
CLASS VIII.
Cases, in which estates tail have been raised by implication only, in opposition to express life estate.
1 Lyle v. Gray. 2
•2 Attorney General v. Sutton. 3
3 Langley v. Baldwin. 8
1 Blackborne v. Bdgley. If
5 Pinbury v. Elkin . 18
8 Bernard. &c. v. Fenton. 9
7 Allason v. Clitheron. 12
8 Roy v. Garnett. 20
9 Goodright v. Pullen. 4
10 Robinson v. Robinson. 18
11 Doe v. Cooi>er. 19
CLASS IX.
Cases, where, without either words of limitation express or implied, but, in order to effectuate the general intention of the testator, his strongest negative words have been overruled.
1 Robinson v. Robinson. 18
2 Doe v. Cooper. 19
*Mr. Bolts offered the following- remarks upon the classes, which he had thus arranged.—
Upon the 1st Class.
In almost every case of a power of committing waste, and of making jointures conferred on the first devisee, such power has furnished arguments in favour of the life estate. See 2 Wash. Rep. 14.
Upon Class the 4th.
The superaddition of words of limitation to words importing a limitation has always "been the source of much argument against the estate of inheritance. It was greatly relied on in Shelley’s case by the counsel, as conclusive in favour of the life estate.
Before we enter into the application of the foregoing cases to the principal case, it should be premised,
1st. That “the construction of wills is not to vary with events and, therefore, this will is to bear the same construction, now, (when the devisee is dead without issue,) that it did bear in his life-time, when there was a prospect of issue,
2dly. That, where there is an express estate for life, so restricted to preserve the inheritance for the issue, and both intents cannot prevail, the express estate for life shall be enlarged into an inheritance, to enable the issue to take through the ancestor.
All the cases affirm this.
I. Upon the first proposition, that an express fee is created.
If, instead of “child or children” the word “issue” or “heirs” had been used, the principal case would fail in nothing of being thoroughly settled by all the cases before stated, to convey a clear, certain, and unquestionable estate tail.
That “child or children” is equal to issue, is to be proven ; 1st. From express opinions of Judges, and, 2dly. From the reason and dialectical, as well as legal import of the words.
And 1st. From Judges’ opinions. Wild’s case confounds “children” and “issues” as meaning the same thing.And 1st. From Judges’ opinions. Wild’s case confounds “children” and “issues” as meaning the same thing.
2dly. From the reason and sense of the words.
“Children” in England might not have been so apt or strong for a word of limitation as “heirs.” But this was the result of the peculiar structure of their law of primogeniture. “Heirs” in England, could not be satisfied but by a succession of the eldest males — children there, in the natural sense of the word, would embrace the whole in the first degree of blood collectively, and not the eldest in the males successively : but in Virginia all the children are heirs. When a man gives to his children, he gives to his issue and his heirs. These are, in Virginia, all different names for precisely the same thing. The rule of law first solemnly settled in Shelley’s case is founded in policy and sense, and not in mere words or sound. That case was confined to “heirs,” but a distinction between “heirs” and “issues,” where the testator meant the same thing, would have been disgraceful to the Court ; and accordingly, “issue” was brought at once within the rule in Shelley’s case.
The idea, that A. an illiterate testator, using the word “issue” or “children” in a will, would turn his estate into a different channel from his neighbour B. who should [120]*120chance to use “heirs,” when both words meant the same thing, as well in law as in common parlance, would be making the system of testaments, with those not learned in the law, a system of chance and uncertainty, and more a system of frustrating the will than of publishing the will.
By limiting the estate to the child or children then of the devisee, (i. e. to his child, if but one ; if more, to them all,) in law and common sense, as much was done, as if he had limited it, in other words, to his heirs or issue.
That those words were intended to designate the inheritance rather than any particular persons to take, is to be proved from the following considerations.
First. Because the testator hath added no words of perpetuity to “child or children though, from the devise of the house to Betsey and “her heirs,” he hath shewn that he knew the importance of them ; but, by understanding that the difference between the different modes of expressing the inheritance used by the testator (“heirs” in one 'instance, and “child or children” in the other) was occasioned by the difference between the estate intended to *be created, and by making “heirs” apply to the fee-simple, and “child or children” to the fee-tail, all the parts of the will will harmonize
Secondly. Because the testator hath not added words of restriction to coniine the estates of the “child or children” for life, as he would have done, had his meaning been such ;
Thirdly. Because the testator thought that “child or children” would make an inheritance in the blood of William; otherwise he meant to die intestate as to the remainder after the death of the “child or children ;” (which cannot be believed ;) for the limitation over to Betsey and John is not after the death of William’s children, but in case he had none ;
Fourthly. Because, by limiting the estate devised to his three children to go out of his blood, upon their dying without issue, he shews that he considered all the issue of those three children in perpetual succession, as provided for;
Fifthly. Because, whenever the testator speaks of his devises to his children, he calls it an estate devised to them,
II. and III. I shall consider the second and third propositions together. — -They affirm, that
An estate tail was created by implication, from the words “if none,” and also from the words “If all my dear children die without issue,” &c.
And the consideration of these must, indeed, be short — for the authorities are so conclusive upon the last proposition, that it would be a waste of time to reason upon it. In the consideration of the fourth proposition, some things must be said illustrative of these points ; and to them reference is had.
IV. The fourth proposition is,
That to effectuate the main general intent of the testator, this must be construed an estate tail in William, the devisee.
The testator’s intention was either, 1st. That the estate devised to William should go over to Betsey and John before the extinction of the remote issue of William, and return back to that remote issue, only in the event of the extinction of the descendants of John and Betsey, before it could go into the Chapman family; or, 2dly. It was the intention that it should never be enjoyed by John and B.etsey till the total failure of issue, remote as well as immediate of William. That the former was not the intention requires no proof. — That the latter was the clear intention would seem to be as plain.
*The testator must have known, that at least, by the law his children were his heirs, and, that in case of intestacy, they would take fee-simple estates. — His complicated provisions by will could only be with a view to benefit his children’s posterity. — This he thought he could most effectually do by confining it to his posterity without otherwise abridging their power over it. — The preservation of the estate for that posterity may be admitted then to have been the great end of the devise: the restriction of the estate to William, during life, may be admitted as the intended means to effect that end. The inquiry then is, whether the end can be attained without a sacrifice of the means ; for. beyond all dispute, if a sacrifice in the case is necessary, the means must fall to the end, and not the end to the means.
William, the devisee, was an infant, unmarried, and childless when the will was made. — His posterity had not then become the objects of the testator’s bounty, from habits of intercourse, or from personal attachment. But the blood derived from the testators to run in the veins of William’s posterity was the filament that bound the former to their interest. — And wherever that blood should be found, the person that contained it was within the sphere of the gift. There was equal reason to provide for the issue of the issue of William as for the first issue,
If William does not take an estate of inheritance, his remote issue could never take.
“Child or children” cannot at the same time be words of purchase and words of limitation. If they are words of purchase, then they could take only life estate; if of limitation, then the children would take ad infinitum.
If, without construing it an estate tail in William, the remote issue of William could, [121]*121.in the event of his leaving children living at his death, take through those children, *yet grandchildren of William, the devisee, could not take immediately, or otherwise, in case of the death of William’s children before the death of William.
Thus, suppose William the devisee hada son A. who had a child B.; — then A. had died. B. the child of A. could not take the estate devised to William, the grand-father of B. without claiming' the inheritance through that grandfather; because, if “child or children” was to designate the person to take, the grandchild would not come within the designation.
In the case last supposed, it might happen that the estate of the testator might go out of his blood, and out of the Chapman family, while each of his three children had numerous suffering posterity ; unless William could be construed to take an estate tail.
Thus, suppose Betsey and John to have died, and left each a grandchild alive. Upon the death of William, leaving himself a grandchild, but no child, the grandchildren of John and Betsey could not take the estate; but it would go to the children of the. Chap-mans ; and if they had been placed, by births and deaths, in the same predicament, the testator’s estate, upon the death of his son, would be undisposed of ; or, if it vested in the Chapman family it would go, in perpet-ttal succession, to them ; to the utter exclusion of the posterity of the testator.
Again, if William does not take a n estate of inheritance, it would be subject to run perpetually in the branches of his posterity.
Thus, suppose William to have two children, A. and B. both of whom have issue; A. dies iri the life-time of William; then William dies ; and then B. his son dies. Now, if the issue of A. cannot claim as heir to the grandfather William, he cannot claim at all; since he is not the “child or children” of William ; and the estate, having vested in B. on the death of William, would go to B.’s issue in exclusion of the issue of his eldest brother A.: and the same might happen to John’s and Betsey’s posterity.
See the curious case described by the Court of Appeals, 2 Wash. p. 33.
But we may go further.
If William did not take an estate tail, his immediate issue could not take.
They could not take, because they were not in esse at the time of the devise, for Ihe estate to vest in them.
The limitation to Betsey and John is after an indefinite failure of issue in William, and void.
Thus, from a review and comparison of all the cases upon this subject, it is clear, that to secure the estate to the remote as well as immediate issue of William, (the great intent of the testator,) his own means, from their total unfitness, must be sacrificed.
But, after this general review, the promised comparison of the case of Roe, on demise of Dodson v. Grew, with the present case is to be taken up.
Roe, &c. v. Grew. j The present case.
1st. The devise is to j 1st. The devise is G. G. for and during | to William during his the term of his natural: natural life, life. \
There is no material difference between these members of the two devises.
2d. And from andj 2d. After his de-after his decease, | cease.
The sense is the same in both instances.
3d. To the use of the 3d. To his child or issue male of his body, children, lawfully to be begotten ; and to the heirs male of such issue.
In the case from Wilson, now under comparison, the differences between the last mentioned member of the devise and the corresponding member of the present case are as follows :
1st. To the use, which is not in the present case.—
2d. The limitation is to the issue male of his body lawfully begotten, instead of “child or children.”
3d. And to the heirs male of such issue : and,
1st. It being to the use of G. G. instead of being devised at once to G. G. makes no difference ; for trusts are to be governed by the same law, and are within the same reason as legal estates, and this is a maxim that has obtained universally,
*2d. The entail in the issue male is the same thing to this purpose as a general entail. — Most of the cases cited in this argument were cases of general entail; and no distinction to this purpose was ever taken by counsel between a general and special tail. “Issue,” I have shewn, is the same as “child” or “children.”
3d. When words of limitation are added to “issue,” to give effect to the words of limitation so added, “issue” should be made a word of purchase. Yet the Courts, in Shelley’s case, Uyle v. Gray, Attorney General v. Sutton, Goodright v. Pullen, and Bangley v. Baldwin, have rejected those words of express limitation, rather than submit to the frustration of the intent, resulting (under the rules of law) from making issue a word of purchase, so as to prevent the first taker from having a fee. — But, if the words of limitation added to issue cannot make the issue take as purchasers, surely the act of Assembly (Rev. Code, c. 90, s. 12,) cannot do [122]*122more than the express words of the testator to the same effect.
4th. And for want of such issue to Dodson.
4th. If none, (i. e. no child or children,) to Betsey Tehbs, &c. And again,
“ If all my children should die without issue, then over,” &c.—
It would surely be difficult to maintain! that these implicative branches of the de' vise, in the present case, were not as strong as, “for want of such issue, to D.” &c.
The estate could never go to the Chapman family but “for want of issue in William nor could it go to John Carr or Betsey Tebbs but “for want of such issue otherwise, if it went to Betsey, or John, before the extinction of William’s issue, it must return to William’s issue, upon the extinction of John’s or Betsey’s, before it could go to the Chapman family ; and if this is not the case, the estate would go to the Chapman family, without “ want of issue of William,” contrary to the express words of the will. Now, that the estate should go from William’s issue, before their extinction, to Bet-sey and John, and then return to William’s issue, under the will, in any event, is too absurb to be the presumed intent of the testator ; much less could it comport with rules of law : so that it is true that under the words, “If all my children die without issue, the estate is to go over,” &c. the estate can never go to John or Betsey, or to the Chapman family, “but for want of issue of William.”
-*The implicative branch of the devise in Roe v. Grew, (“but for want of such issue,”) was sufficient to turn the express estate for life into an estate tail, without the express limitation to the issue of G. G. And Lyle v. Gray, Attorney General v. Sutton, Langley v. Baldwin, Blackborn v. Edgley, Pinbury v. Elkin, Bernard v. Fenton, Allason v. Clitheron, Roy v. Garnett, Robinson v. Robinson, and Goodright v. Pullen, were all cases in which express estates for life were turned into estates by implication.
Wickham, for the appellees. In this case the claim of dower is merely incidental, and depends upon the previous question, whether William Carr the younger took an estate for life, or in fee. The will is plain, and shews the intention of the testator to give an estate for life only. This is the .plain and obvious construction, and the only one which it will bear, unless artificial rules be interposed.
There are two rules to be observed in construing wills. The first is a rule of general policy, which prevents perpetuities. The utmost limit allowed by law, (except that, in England, an estate tail, which is a peculiar species of perpetuity, is expressly au-thorised by statute,) is an estate for a life or lives in being, and twenty-one years after-wards. — This rule is not infringed by the testator in the present instance : for the devise is to William Carr for life, and, after his decease, to his child or children : if none, (that is, no children,) remainder over. Nor is the residuary clause in the codicil too remote; because it is limited to the children of the testator dying without issue, living his wife. So that he intended the estate to be final on the death of his son and wife, both of whom were then in being.
The second rule is, that, in following the intention of the testator, the general intent is to be regarded in preference to the particular intent, if they interfere; but not otherwise. Eor example ; an estate to A. and his heirs ; and, if he die without issue, remainder over ; this is an estate tail. So to him for life, and his issue afterwards ; and, if he die without issue, remainder over. The particular intent of an estate for life gives way to the general *intent to provide for his issue ; — otherwise the issue would only take a life estate.
But if the particular intent and general intent be consistent, both shall stand. Such as an estate for life, and remainder to the issue and the heirs of the issue ; both shall stand together.
I will lay down another rule ; that wills in both countries should be construed according to the existing laws, unless the contrary appears to have been the intention of the testator. Thus, in England, estates tail being allowed by statute, the Courts will presume that the testator meant to create such an estate ; if such general intention can be collected. In this country, they are not allowed ; and you will not presume that the testator meant such an estate, unless the words plainly import it, or it be necessary to effectuate his genera), intent. There, if an estate be to A. for life, remainder to his issue, without words of inheritance ; the issue will take only for life, if they take as purchasers. In order, therefore, to carry into effect the. general intent, the Courts will construe it into an estate tail. Here, words of inheritance are not necessary, by express act of Assembly ; and the general intent may be answered without presuming an estate tail. ' The act of Assembly may properly be referred to on a question of intention. Estates tail are presumed in England, because allowed by act of Parliament: —estates in fee-simple are presumed in this State, because allowed and directed by act of Assembly. This does not interfere with cases where it is apparent an estate tail was intended ; because, in such a case, the act of Assembly turns it into a fee-simple. In the case before us, it is apparent that an estate for life only was intended.
We come now to the question, whether “child or children” operate as words of limitation or of purchase. If they operate as words of limitation, they carry a fee ; if as words of purchase, an estate for life only, and the widow is not entitled to dower.
But it is supposed by Mr. Botts, that he has found a case apposite to this — Roe, on the demise of Dodson v. Grew.
The next, and one of the principal cases relied upon by the counsel on the other side, is Robinson v. Robinson,
But it is argued, that if our construction should prevail, the grandchildren might be excluded. The testator might never have thought of providing for the children of children dying in his life-time. This frequently happens; and there never was a question but that the children of such were excluded. The case of Roy v. Garnett
The devise being to the children of William Carr the younger generally, and not restricted to one or more living at his death, the moment a child was born it took a vested ^interest. It may be urged, that it was uncertain whether any child would be born, or whether more than one. That does not vary the rule of law. A child may take a vested interest, though the proportion be not ascertained. The interest is vested at the moment of the birth of the first child ; but the proportion may be varied by after-born children. If there be but one child, it takes the whole.
It may be laid down as a rule of law, that an estate may be vested in interest in remainder, though the proportion be uncertain. Hike the common case of an estate to A. for life, remainder to B. for life. Here the estate to B. is vested, though he may die in the life-time of A. But if it be to A. for life, remainder to the heirs of B. it is contingent, because it is uncertain who is the heir of B.
If an estate be given to A. for life, remainder to all his children and heirs, all the children take, and the representatives come in. Attorney General v. Crispin ;
Mr. Botts argues on the supposition that the estate was conveyed to the children in succession, and, therefore, the act of Assembly turned it into an express estate in fee in William. But in this country the children do not take in succession, but altogether.
He then proceeds to notice the imports of the various words, issue, children, and heirs ; and states that “issue” is equivalent to “heirs” and “children” to “issue.” — In the case of Roe, on the demise of Dodson v. Grew,
In this case there was a contingency with [124]*124a double aspect, and a life estate to support it: — as to A. for life, remainder to the heirs of B. but if B. be living- at A.’s death, to the heirs of C. But if the life estate shall be extended to a fee, it is an executory devise of a fee after a fee : and, if the limitation be not too remote, they take one way or the other. It is, therefore, a mere question of names. In the present case, it was not too remote ; for in another member of the devise, the testator says, if “all my dear children die, living- my wife,” &c. so that it is to take effect during a life in being.
But the true construction of this will is, an esta te to William for life, remainder over. It is objected, however, that in this country all the children take by descent, and, therefore, a descent must be intended. This is a mere question of intention. Did he mean to give an estate for life to his children, or an estate of inheritance ? Unless we resort to artificial rules, there can be no doubt of his intention to give a life estate only. But these rules are never resorted to, except when the general intent and particular intent conflict. Here the general and particular intent agree. An estate was meant for life ; after the death of the devisee, his children take as purchasers ; but as the testator contemplated that he might have none, he gave it to others in remainder. What rule of law or of policy is violated by this disposition ?
Dove, on the same side. The only question now to be considered is, whether William Can the younger took an estate for life, under the will of William Carr the elder; or whether, by implication of law, he took a fee-simple.
The clause in the will of William Carr the elder, which is the subject of discussion, is in these words : “I give and bequeath to my son William Carr, during his natural life, the lands,” &c. (going on to describe them, and concluding this clause by the words,) “I say, I give the aforesaid lands and ne-groes to my dear son William Carr, ^during his natural life ; and, after his decease, to his child or children ; if none to my son John Carr and my daughter Betsey Tebbs for life ; and then to be equally divided among their children.”
I shall here notice the further disposition which seems to have been made of the property specified in this clause, by the words in the second codicil to the said will, which are, should all my dear children die without issue of their bodies, my dear wife living, one half the life estate to go to my dear wife during her life, the other half to Thomas Chapman, Simon and Robert Lutteral, and Thomas Chapman’s children, namely, Carr Chapman, Charles Chapman, and Jen-ney Chapman, during their lives, then to their children, if any, after the death of my dear wife, the whole of what she has for life, in the last clause, to Thomas Chapman, in trust for the forementioned children, and my trusty boys Daniel and Arch, equally to be divided between them.”
The will and the two codicils are dated the 23d day of January, in the year 1790, the testator departed this life in November in the same year, and on the 8th of February, 1791, the will and codicils (being proved to have been all in the hand-writing of the testator) were admitted to record in Prince William County Court.
All Courts have agreed, that the intention of a testator is to be the leading rule of construction in wills ; and that such intention is to be collected from the words of the will, in the first plac.e.
I therefore take the position as correct, that if the intention is plain from the words, they will give effect to the will in their common import, unless they are shewn to be in a state of hostility to some fixed and incontrovertible principle of law in the limitation of property ; as in Shelley’s case, and in Hill v. Burrow, 3 Call, 353, &c.
When, in the same clause of the will of William Carr, we find him twice expressing his devise to his son William to be for life, it would seem that such words could not have been produced by accident; but that such a disposition of the property was not only intended, but formed a leading feature in the wishes of the testator. — This intention is admitted to be clear, and is called his particular intention by the counsel for the appellants, in contradistinction to his general intent.
And here I am willing to admit that, if the particular and general intents are found to clash with each other, the former must give way; but I do not admit that the general *intent is to be confirmed, so as to defeat the remainders a-t all events.
At the same time I claim, if the particular and general intent can both be answered and stand together, that they shall do so; for the whole intention must be answered, if the rules of law will admit of it ;
I shall, in order to shew that both the particular and general intent attributable to William Carr in his will may take effect, (thereby giving to his son William an estate for life, of which his widow could not be endowed, and to his child or children a contingent remainder,) take two distinct views of this case.
1st. I will endeavour to shew that,
Under the principles of decision which have obtained in cases of this kind, in the Courts of England, this devise may be adjudged to give to Wm. Carr the younger, an estate for life ; and that such a construction does not conflict with the settled rules of the common law ;
2d. That, under the principles which necessarily flow from the unavoidable interpretation of our own laws, to give effect to the testator’s general intent, the estate must be construed to be for life only in Wm. Carr the younger.
As to the first view ;
I shall endeavour to select such cases as come nearest in words and principles to the case pending; for I am aware, from the researches I have been able to make on the subject of construing wills, of the truth of Justice Wilmot’s observation adopted by the President of the Court of Appeals, “that cases on the construction of wills rather serve to embarrass than elucidate ;”
The few cases which I think may be fairly argued from, in forming a decision on the present one, I will arrange as follows.
Archer’s case,
It was agreed by the whole Court, that Robert was only tenant for life.
Wild’s case.
This case, I shall endeavour to shew, is a very direct authority in favour of the defendants, on common law principles. — It was in remainder to Rowland Wild and his wife, and after their decease, to their children. — Rowland and *his wife were adjudged to take an estate for life, and their children also an estate for life only. Three rules in the limitation of estates were in this case agreed, which seem to have been no where contradicted; but the one applicable to the case pending, seems to have been recognized as authoritative, as I shall shew.
1st. If A. devi.se his lands to B. and his children, or issue, (without limiting the time when the estate in the children is to take effect,) and B. has no children at the time, the same is an estate tail.
2d. If A. devise his lands in like manner to B. and B. hath children at the time, they shall be a joint estate for life.
3d. “If a man devise land to husband and wife, and, after their decease, to their children, or the remainder to their children ; in this case, although they have not any child at the time, yet every child, which they shall have after, may take by way of remainder, according to the rule of law ; for his intent appears that their children should not take immediately, but after the decease of Rowland and his wife.”
Wild’s case is referred to in Ginger v. White,
That the words used in the devise to Williams are to have the same effect and construction as those used in the devise to John and Elizabeth, is proved by the common meaning annexed to the words used in these different clauses, and is also plainly to be deduced from one of the main general intents of the devisor.
It is proved by the words. For I hold the words “after his decease,” which are found in the devise to William, and not in the devises to the others, to be tantamount to the words “living at his (or her) death,” found in the devise to John and Betsey, and not in that to William ; and those used in the devise to William, as competent to fix the time of a failure of children, and when the remainder should, take effect, as those used in the devises to John and Betsey. It is also deducible from one of the main general intents of the testator, which evidently was to divide his estate equally among his three children, and to make them take in the same manner. He has measured out their estates by the same rule in point of duration ; has ^established, in each, cross-remainders in express terms; — and finally, has expressly declared in the first codicil, that it is his will and desire that all his dear children should have equal shares of his estate. It cannot be presumed that these devises of his property to his children, could have been intended to be governed by different rules.
The case of Ginger, on the demise of White, v. White,
John, the son, had no issue at the time the will was made, or since. On the death of the testator, John and Sarah entered. Sarah died, and John survived her; and John entered on the whole premises, suffered a common recovery, and declared the uses to. himself and his heirs, and afterwards settled the premises on the defendant Elizabeth and her heirs. John the son died, afterwards, without issue, Henry the eldest son still living ; and John (the grandson and devisee) was the lessor of the plaintiff.
The question was, whether John the son took an estate tail, and so had power to suffer a recovery and bar the remainder 1o John the grandson, or whether he was only tenant for life.
Eord Chief Justice Willes. This is the general question ; but it will depend on two points.
1st. Whether John the son took an immediate estate tail by the devise to his male and female children.
2d. If he did not. whether these words, “In case the said John should die without issue,” did not give him an estate tail by implication in remainder, after the limitation to his children ; for, in either case, the recovery would bar John the lessor, because he claims by the subsequent devise, “in case John his uncle die without issue.” In *this case the Chief Justice gave an opinion very much at length. He reviewed the cases of King v. Melling, Bang-ley v. Baldwin, Shaw v. Weigh, Popham v. Bamfield, The A Ltorney General v. Sutton, [126]*126Eodington v. Kime, and Eaw v. Davis, which were the most important cases at that time decided, and some of which are now relied on in the argument of counsel for the appellants.
The Chief Justice delivered it as the opinion of the Court, that John the son took only an estate for life.
The words “after his decease,” and the word “children,” used by the testator in the case of Ginger v. White, and also in the pending case, are very important, and may be argued from in the same manner in both cases.
The devise to the children of John and their heirs, successively according to priority of age, confined the disposition as closely to the law of descents in England, as the devise to William’s children does to the law in this country, on the supposition, that if William had had children, they would have taken a fee-simple, under the operation of the act of Assembly of 1785, which dispenses with the use of words of perpetuity. There is certainly as strong an analogy between the two cases, as could be expected to be found between words and the ideas correspondent to them, which, at different times, were used by different men, neither of whom intended to use, or were capable of using technical expressions, in developing their minds.
The Chief Justice, in explaining what are considered as express words to enlarge an estate fpr life into an estate tail, says, “such words as ex vi termini create estates tail, are admitted to have that effect,” because of the rule, I presume, in Shelley’s case.
This distinction will be found important, in reply to the cases cited by the counsel for the complainants. — For, in most of them, either an express estate tail is limited to the issue, or such words are used as in themselves import an estate tail, and are taken to convey such an estate.
The case of Fell v. Fell
Although there are many other cases among the more modern reporters, which might be adduced to shew that, even on common law principles, the life estate and inheritance did not unite in William Carr the younger, under the devise by his father, I think the argument may be shortened, and the case placed in a more intelligible point of view, by noticing here some of the authorities adduced by the counsel for the complainants.
Shelley’s case is first relied on.
By which an estate tail in the heirs male of the body of Edward Shelley is created, by express terms after an estate for life to Edward Shelley ; and for default of such issue, remainder over, &c. and it was adjudged that Edward Shelley took an estate tail — there are many reasons against the influence of that case on the present; for I admit Shelley’s case to be still an unbroken pillar of .the feudal system, which cannot be demolished and thrown with the rubbish of the dark ages ; but, 1st. I must shew that it does not lie in our way, and that it is not necessary for ús to encounter it.
This was a conveyance made by Edward Shelley, by way of covenant, to stand seised to the use of himself for life, &c, and was an attempt to evade the common law principle derived from the nature of feudal tenures, which was as old as the system itself ; “that a man shall not, by any means, make his heirs take from him by purchase.”
2d. It was a principle altogether unconnected with the right of devising ; and, if that right did exist at common law, (which some suppose,) was in opposition to it; perhaps in suppression of it.
*3d. It is a principle, which has in a great measure lost its effect in England, by the stat. of 32 Hen. VIII. permitting devises, &c. and the rules which have been adopted in the construction of devises by the British Courts.
In 2 Burr. 1107, Eord Mansfield says, “The reason of this maxim has long ceased, yet, having become a rule of property, it is adhered to in all cases literally within it.”
It is unnecessary to remark the material difference between the words pf the instrument in Shelley’s case, and those in the devise before us. Christian, in his notes on 2d book of B. Com. p. 20, lays down the rule in these words: 11 When the ancestor, by any gift or conveyance, takes an estate of freehold, and in the same gift or conveyance an estate is limited mediately or immediately to his heirs in fee or in tail, always, in such cases, heirs is a word of limitation, and not of purchase.”
So subservient, however, has this common law rule become to the intention in wills, where plainly expressed, that the smallest literal deviation will destroy its influence. The word heir in the singular number, used instead of the word heirs, will take it out of the common law rule; Archer’s case,
In a devise of gavelkind land, the word heirs is not a word of limitation. (2 Burr. 1110.)
In the case of Long v. Laming, from which the last citations are made, Lord .Mansfield, p. 1109, says, “there is no such fixed and invariable rule, as has been supposed, that words of limitation shall never, in any case, be construed as words of purchase.” And in p. 1111, “There is no rule of law that prevents heirs taking as purchasers, when the intention of the testator requires that they should do so.”
Justice Dennison (ibid.) said, “It is not inconsistent with the rules of law, that heirs of the body should, in some cases, be construed as designatis persona;, &c. therefore, the heirs of the body of A. C. must take by purchase.”
Justice Wilmot cited a case of Baker v. Snowe, which was a conveyance to E). E. for life; remainder to his first son and the heirs male of his body; and so to his six sons; remainder to the right heirs of E. E. it was holden to be only a contingent estate, and not an estate tail in E. E. because it was limited to particular persons. “The words heirs, heirs male, or heirs of the body, are not to be '^construed as words of limitation, either in a will or deed, where the manifest intention of the testator or the parties is declared to be, or clearly appears to be, that they shall not be so construed.” ibid. 1112, 13.
By these respectable law opinions and decisions, the rule in Shelley’s case, which was a particular object of discussion, seems to be subdued to the more rational one of intention ; or to be so narrowed in its operation as not to embrace our case.
In Perrin v. Blake,
After the British Courts have thus restrained the operation and weakened the force of the rule in Shelley’s case, I can .scarcely presume that its influence will be reestablished in this country, as the artificial ground upon which it stood there never did exist here.
The case of the Attorney General v. Sutton, is not, I presume, intended for the single purpose of supporting the authority of the rule in Shelley’s case; but is-cited as an authorit}’ generally favouring the plaintiff’s claim. If that be the intention of the citation, it certainly can have no application to the case before the Court.
The words in the cited case, ex vi termini, created an estate (ail. In Ginger v. White, before cited, it was clear that all the sons of Thomas were intended to take; nay, all his issue, although only a part are provided for in express terms. But in the case at bar, all the children being by express terms provided for, nothing is left for implication ; and the words of the will may be adopted in its construction without doing violence to any supposed intention. This distinction is fully illustrated by all the cases, where *the limitation has been to ail the males, and then the females, in succession, after the estate for life in the ancestor; as was the case in Eell v. Eell.
The principle of decision in the Attorney General v. Sutton, is likewise adopted in Langley v. Baldwin, where the words were the same, except that in the latter case the limitation extended to the sixth son, but, not to all; for which reason, and because it was declared that if the devisee for life should die without issue, the estate should go over, in order to provide for a seventh or other son, the devisee was held to take an estate tail.
And, again, when the provision was general for the issue or children by the same words, or words of the like import, as the3r respected the devisee, he was held to take an estate for life,
As to that part of the adjudication relied on by the counsel for the appellant where it is said ‘ !a devise to A. for life and after his decease to his issue, without more, will carry an estate tail to A. ;” it is merely a repetition of the 1st rule in Wild’s case, before cited, and of the old rule in Shelley’s case.
In the case of Trevor v. Trevor, the words heirs male are used. This case, therefore, may be replied to as the former. — It may be added, that in it we find another rule in destruction of the principle in Sheika’s case, to wit, that principle is departed from in settlements in consideration of marriage. Why this distinction in favour of intention, as it is laid down in Eearne’s Cont. Rem. p. 124, should have effect in cases of marriage-settlements and not in wills, both of which in a legal view are made on consid[128]*128eration and supposed to be for value, I have not been able to trace any satisfactory reason. That the rule in Shelley’s case (although so arbitrary as to govern without anj' existing reason for it) is weakened by this acknowledged principle, of construing marriage conveyances in strict settlement, I strongly contend; because there wasnoth-ing originally in the rule in Shelley’s case, when it was supported *by a semblance of reason, which would necessarily, when marriage-settlements became legalized, make them an exception to the operation of that rule, more than devises would be made.—But devises were at first construed differently, for reasons which never existed here.
As to Lewis Bowie’s case,
Garth v. Baldwin,
Lord Chief Justice Willes, in the year 1745,
Doe v. Reason, or Bernard and Benton v. Reason, is a case mentioned by counsel only, in 3 Wils. 242, where it appeared that the words were issue of the body; therefore within the principle of the cases before replied to. So was Coulson v. Coulson, No. 10, in the arrangement of cases made by the counsel for the appellants; and No. 11, King v. Burchell, as mentioned, in Long v. Laming, by counsel. No. 12, Allason v. Clitheron was also held an estate tail by implication, by reason of the words issue of his body. No. 13, King v. Melling, the words are issue of his body lawfully begotten. ,
Brom the case of Robinson v. Robinson little light is produced on the subject. The certificate of the Judges in itself furnishes no rule for the determination made. It was said it was necessary to construe the estate given to L. H. an estate tail, and to this construction the words were not opposed, because thevwere proper to create an estate tail. They were, “lawfully to be begotten.” The *words of a will are to be construed in their legal import, unless that will do violence to the manifest intent; but here the intent was favoured by it, and it seems to me that the obvious reason of the Court’s opinion was, that the devise over was void, the limitation being of a contingency on a contingency, which could not be allowed. The only way then by which the issue of L. H. could take the estate, and the manifest general intention be preserved, was by giving L. H. an estate tail.
The case of Dodson v. Grew. The words of the limitation in this case were, “to the issue male of his body lawfully begotten.” The most proper words which could be used to create an estate tail.
The whole of the reasoning employed in discussing the former cases cited by the opposite counsel is brought fully to operate upon this case.—It is an estate tail ex vi termini, and the words will have their legal import and effect, unless there is a plain and apparent intention to the contrary: but here, as in the case of Robinson v. Robinson', the intention favoured the legal construction.
The supposed analogy then does not exist in the operative words, but in the unimportant circumstance of an equal number of persons.
When the counsel for the appellants comes to class and marshal his cases, we find there is not one referred to, where the limitation has been in the words of the devise before us, “to the children of the devisee for life;” but all the cases contain words indicative of an estate tail. The argument of an estate for life by implication from the words, “without impeachment for waste,” &c. cannot go further than the express limitation of an estate for life, and therefore need not be remarked on, where cases have been answered in which express estates for life were created.
It is then contended by the counsel, that Wm. Carr the devisee took a fee conditional at common law. I believe it might be safely admitted that a conditional fee was executed in William. Bor if the condition never happened in the life of William, he could not be said to have been seised of an estate of inheritance; and of none other could his widow at common law be endowed.
Next it is argued, “that the word ‘children’ was intended to designate the inheritance, rather than any particular person to take, because the testator has added no words of perpetuity.” The testator was a merchant of eminence, he had been at great pains to acquire an estate; *was very conversant in all the forms of conveyancing, and versed in the land titles of this country ; he was a magistrate, and was said to be an able and learned one. He has, in his own hand, written a testament, which for legal accuracy of expression, may perhaps defy the criticism of the ablest lawyer; and yet, it is suggested, that he did not know of the existence of one of the most important laws in the transmission of property ever made in the Commonwealth in which he lived ; although that law was in force for several years before his death. But that when he words his testament in unison with the established principles to that law, (which [129]*129does not require a perpetuity to be created in express terms,) he does not know of, or mean to introduce the influence of that law, but is in search of some new and unheard of mode to give a perpetuity, by the introduction ot' the word children; and thus (by an evasion, if effectual, almost too subtle for the distinguishing sense of a lawyer) to create an estate tail in spite of a positive law of the Commonwealth, and in contradiction to all the rules of construction which have been adopted by British Jurists in creating estates of that kind. — ‘This is, indeed, putting the will of the testator to the torture.
But it is said a conditional fee at common law is created, “because the testator has not used w'ords of restriction to confine the estate for life, as he would have done, if he had intended it.”
Surely, after he has given the estate in express terms for life, and further declared what was to become of it'after the death of the tenant for life, we cannot doubt about his intention as to the certainty of a life estate, or that to have said more, would have been at least tautologous and unnecessary.
If the counsel, in one of his reasons for the supposition that a fee conditional at common law is created, means to say that the testator meant to vest an inheritance in the children of William Carr, I concur with him; but contend that those children would take by purchasethey would take an estate of inheritance, without the addition of what were called words of perpetuity, which were then dispensed with by act of Assembly. As to the peculiarity of the words in the devise to William and his children, I can entertain no doubt but they would receive the same construction with the devise to John or Betsey, which, in express terms, refers to the children only which shall be living at the time of the death of the devisee for life.
*After having in this cursory manner noticed the various reasoning of the counsel on the operation of the words of the will, I come now to reply to that which is more important: the inquiry into the intention which is manifested by the will: — and it is said, that unless William Carr the younger be construed to take an estate tail, it may happen, that the remainder may go over to those to whom it may be devised, although William Carr might still have remóte issue of his body. This principle I know has been argued from in England, and in this country, in the case of Roy v. Garnett. If the position be true, that “children” is a word of doubtful import, and may, to effectuate the intention of the testator, be construed to extend to remote descendants, there is no difficulty; for, according to the argument of the counsel himself, although the immediate descendant of William Carr the devisee might die in his life-time, and leave a child or children, the grandchild would be denominated by the term child or children, and would take the remainder immediately on the death of their ancestor, the tenant for life, yet it would seem sufficient to oppose the supposition of the counsel of this remote chance of inconvenience, and this violence to the testator’s intention, by the immediate and unavoidable inconveniences that would result from construing the will in such manner as to vest an estate tail in William Carr the devisee; which eo instanti our law converts into a fee simple, and thus, at once, destroys the testator’s intention.
On the supposition that the testator knew that there was such a law in existence as would convert estates tail into fee-simple estates, we cannot suppose he intended to create a fee-tail; because it would be no more than giving to his son a fee-simple, which he might immediate^7 dispose of, and so destroy the remainders, both to his children and the other children of his testator.
To suppose a fee-simple in William Carr, the devise must be construed to be an exec-utory devise: but if a limitation of an estate can be construed to be a contingent remainder, it never shall be construed an executory devise.
As to what constitutes a contingent remainder, and to shew that this case comes precisely within the description, I refer to 2 Bl. Comm. p. 169, where it is said, “If A. be tenant for life, with remainder to B. ’s eldest son, then unborn, this is a contingent remainder; for it is uncertain whether B. will have a son or no.” The British authorities say nothing of the general intent, as to the vesting *of the remainder, because, to construe a devise to be an estate tail, the remainder-men are provided for; but it is different here; for after a fee-simple created by the operation of our act, there would be no remainder.
On the supposition, then, that there are two main intents manifested in opposition to each other; the one to vest an estate in William Carr’s remote descendants, in case of a non-surviving son or daughter of William ; the other Lo vest a remainder in the testator’s other two children, and both these cannot stand together, let us adopt the rule of decision mentioned; and suppose the testator had been told, that by a possible event a grandchild of William might be disinherited, unless the estate of William was made a fee-simple. It is at least problematic, whether he would not have risked that possible contingency, rather than have left the estate open to the disposal of > his son, thereby risking, in another way, the chance of his grandchild ever enjoying the estate: and also of a remainder, or an inheritance from William vesting in John and Elizabeth, or their children, according to his express intent. In the case of William’s alienation, the testator’s grandchild would lose the estate, or, if he had no grandchild, his own children. To grant, then, that a fee-simple would be created by implication, would produce the destruction of the main intent contended for; as we have no estates tail. But, in case of the possible event of a nonsurviving child of William, his great grandchild only could lose the estate, according to the argument of the counsel, still submitting to the risk of an immediate alienation of his ancestor. Yet 1 am content to remove every obstacle arising [130]*130from this possible event; to take for true the counsel’s own doctrine, that in the limitation of estates, child or children will be construed to mean the same as issue, and we shall presently see what must necessarily, under our laws, be the construction of this will. I shall, therefore, now consider this case under the second view proposed to be taken of it, to wit: “under the principles which are established and must necessarily flow from a rational interpretation of our laws, altering the system of British law in the disposition and limitation of'property. ”
I have examined the artificial grounds on which some of the rules of limitation were built by the laws of
England; it has appeared that those rules, by the modern adjudications in England, were shaken, and in effect destroyed, by the operation of the principle of intention in the construction of wills under the statute of Hen. VIII. It would seem ^strange, therefore, that, in this country, any of the rules of property which were merely incidental to the feudal system should be revived, when that system is totally abolished, and the deductions from it in every instance counteracted by our laws, where such deduction could be the object of positive law. I therefore think it rational at least, and I contend it is consistent with law, that in the interpretation of wills, the intention of the testator, should not be trammelled by obsolete rules of the common law, which, if introduced into operation, I shall endeavour to demonstrate, would defeat the spirit and meaning, and perhaps counteract the expressions of our municipal regulations.
I say that it is impossible that the rules of limitation established by the common law, can apply in the construction of wills, under our act of Assembly. By our laws, an estate tail can in no case be created, which will not eo in-stanti become a fee-simple,
We learn from the old books, that the reason why the Courts first established that kind of judicial estate in England called an estate tail by implication, was, to preserve the contingent remainders; namely, when a devise was to A. and his heirs, and if he die without issue, remainder over: here an estate tail is implied by the word issue, in order to preserve the remainder over: and there is a case stated, in 4 Gwyllim’s ed. of Bacon, p. 258, where the Court construed an estate in fee-simple to be only a fee-tail, in order to preserve the remainders. Eor, if it was construed a fee-simple, the remainder was gone; it being a contingent remainder, and not an executory devise; the same therefore as our case. If, then, the Courts of England have adopted a rule of construction, by mere implication, for the purpose of preserving the contingent remainders, which- has been always adhered to as reasonable, by creating a new kind of estate by.implication, surely our Courts will be justified in adhering *to the letter and plain meaning of the devise, in effecting the same important object.
Eor, without construing this a life estate in the first taker, the remainders must be totally destroyed; it being a life estate or a fee-simple; and the limitation being a contingent remainder, and not an executory devise; and it being decided that the Court will not construe that an executory devise which is a contingent remainder, for any purpose whatever,
Finally,
There was no possible way by which the testator could, according to the laws of this State, secure, at the same time, the enjoyment of the estate to his children for their lives, and a remainder to their descendants, but by giving to his children a life estate [131]*131in the property devised: for estates tail are done away.
*The cases and adjudications before mentioned, shew that courts of Justice have always considered the preservation of remainders express or implied, as essential to the main intent of the devisor ; and I do not understand that this general intent has over been considered in a point of view subordinate to the intent which is supposed to exist to confine the estate to the issue of the first taker; but that being now rendered impossible, by our act docking entails further than to that life which shall be named and be in existence immediately at the determination of the first life estate, the court will preserve the other general intent in favour of a remainder-man. For by the argument of the counsel it is conceded, that, if William is construed to take more than a life estate, the remainders are gone; and the estate must pass in a course of descent.
Having stated my opinion of the probable operation of our law of 1776, for docking entails, I will see with what force the case of Roy, &c. v. Garnett,
In the first place, let it be remarked, the testator in the case of Roy, &c. v. Garnett, made his will in 1765, and, from the information the case affords, died soon after; so that, on the principle that wills are to be construed according to circumstances at the time they were made, the rules of limitation in England, strictly applied in Courts in this country on the subject of that will. Secondly, according to the law of England, an express estate tail is created in the first and every other son of James; — which differs it in two important points from the case pending; 1st. As the estate is onljr contended to be an entail by implication, contrary to the express estate for life; 2d. As there is no succession in tail contended for, in the present case, and the child or children of William, if any had survived, would have taken in parcenary, or as tenants in common in fee-simple; as would also the children of John and Betsey per capita, and not in a course of descents, under our act of Assembly, as the sons of James would in Roy v. Garnett, by the construction of the statute de donis. Under this second distinction, the case of Roy, &c. v. Garnett, is expressly a decision in our favour, for (in p. 32,) the President says “the parlies have rightly agreed, that the devise to the surviving sons did not enlarge the estate for life in James, since the surviving sons not only might, but must take as purchasers, being to take, not in succession, but as tenants in common.”
x'Thirdly, although the doctrines of limitation are only commented on as existing in England, yet no adjudication was made, by which a rule of property might be considered as established; and it was said that the Court doubted as to the effect of that devise. I am willing here to admit that it was impossible the Court could doubt as to the operation of the rules laid down in the_construction of estates tail, whereon a remainder may be limited; I have no where denied the doctrines as laid down by the president. If the doubts of the Court had been explained, they might have been found to be derived from the alteration in our system, which at the time of the adjudication was effected by the abolition of estates tail; and in this opinion I am confirmed by the concluding words of the adjudication, denying the operation of the act of 1776, and thereby taking the case entirely out of its influence. This case cannot then be ruled by the opinion delivered in that; the two cases being in circumstances totally dissimilar. The case of Hill v. Burrow, does not stand in our way, because, there, the words are said by the court to be appropriate and emphalical to create an estate tail — 'and no words were used designating the termination of the life estate. So, in the case of Tate v. Tally, the words heirs of his body were used.
Botts, in reply. — The counsel for the ap-pellees contend that the devisee William Carr took only an estate fot life; and that to his child or children a contingent remainder was devised.
To support the effect given by the appel-lees to the will, the counsel reason, 1st. From the English cases, and 2dly. From the laws of Virginia, which they suppose have altered the law of England as to the subject in question.
Wild’s case is cited. The first rule there stated puts “children” and “issue” upon the same footing. If children and issue be the same, it is clear from a large class of concurring cases that, even where the devise is expressly for life, with remainder to the children or issue after the decease of the devisee for life, the latter will take an estate tail,
The counsel for the appellees take it for granted that the testator meant to devise to William, in the same words and to the same effect that he used and designed in the devises to his other two children, though the words employed in the several devises are substantially different. William was the eldest son of the testator; and that circumstance, according to the common prejudice of fathers, may account for the difference made by the testator between the devise to him and the devise to John and Betsey. It is sufficient that the testator has used different words, and of dissimilar legal import. It is admitted that, in every other respect, he may have intended similitude in the devises to his children; but, because a testator makes but a small differ[132]*132ence in the mode of limiting his property to his children, it is not to be inferred, against plain words, that no difference was intended. This reasoning does not conflict with the intention in the codicil to give equal shares of his estate to his children ; because that equality had relation to nothing but the quantity of the estate to be given to each without reference to the direction in what manner it was to be preserved in the families of his children, after their deaths. He surely did not intend the house and lot in Dumfries given to Betsey Tebbs and her heirs, in a separate clause of the will, to vest in her nothing but a life estate; and yet this would be the effect of Mr. Dove’s exposition of the codicil.
If the three devises are to be likened to each other, those to John and Betsey might as well be moulded to the shape of the, one to William, as to make the latter accommodate itself to the former. The Courts more frequently reject words in a testament than make them for testators.
However, this point is not considered of importance; since, if the devises were the same, the general intent must prevail over the particular intent.
The case most relied on by Mr. Dove is Ginger v. White,
In that case the Court admits that the word children in a will sometimes creates an estate tail; and the Chief Justice expressly declares that there is a distinction between “heirs” and “issue,” putting the latter word as meaning the same with children. Now, turn “child” or *“children” into “issue,” and the fifteen concurring cases in class the 3d. before cited, will make the present an estate tail.
It is true that, in the case of Ginger v. White, the Court decides that the limitation over upon the death of the devisee John, without issue, did not turn John’s estate into an estate tail; but the reason given by the Court is that an express estate for life cannot be enlarged by implication. Now, though this was contended for as a principle of law at that time by some of the Judges, the contrary has been finally settled by all the modern decisions upon the subject; and expressly by the case of Roy v. Garnett in the Court of Appeals,
The word “heirs,” ex vi termini, creates an estate in fee: the word “issue” has the same meaning when necessary to effectuate the general intent, and, upon .the same reason, “children,” in this country, must mean the same thing, and have the same effect.
The case of Fell v. Fell, stated in Mr. Dove’s argument, has no bearing on the present case. Thomas Bell was there in being at the making of the will, and expressly named as a remainder-man; but there a limitation in remainder to “the females” created in the first female an estate tail. It is submitted 'whether “child” or “children” is not equivalent to “the females?”
In Ginger v. White, a case from Moor, 397, is cited, of a devise to A. for life, and, after his decease, to “the men children of his body;” and adjudged that A. took an estate tail. The law of this case is no where denied, and it is submitted whether “child” or “children” are not words as-strongly importing an inheritance as • ‘men children of the body.”
The counsel for the defendant cannot be successful in his attack upon the rule in Shelley’s case. That rule has never been, impugned in any case. If Mr. Dove’s quotations prove any thing, it is that there is. no more legal virtue in the word “heirs” than there is in “issue;” for, if there be not a general intent to secure an inheritance, neither of those words will effect it? but, if there be such general intent, either of those terms, or the word “children” will carry the inheritance.
The case of Doe v. Dord Mulgrave,
In the argument of Mr. Dove, he hints at a distinction between “children” and issue;” and labours effectually to shew that “issue” is not a word of limitation, except where the general intent shall make it such; and, surely, he will not deny this qualified effect to the word “children.” He has not said that “children” are not “issue,” or that “issue” means other than “child” or “children,” either philologically or technically.
Among the notes to the case of King v. Melling is one that the words “and for want of such issue” make a phrase suitable to an estate tail. Now, in the case to be decided, there is a limitation over for the want of issue. When the testator says “and if all my children die without issue” he furnishes that strong implication of an intention to provide for all the issue which has, in all the cases where this implication is found, carried an estate tail.
When Mr. Dove comes to the case of Dodson v. Grew, he supposes the words “to the male issue of his body lawfully begotten” to create an estate tail, ex vi termini. He then argues that “issue” is a word of limitation or of purchase according to the general intention ; and the word “heirs” has been found a word of purchase, according to the general intent. The general intent, Mr. Dove has effectually contended, must controul and subdue the strongest terms and phrases of limitation: now I cannot understand how it is, that the general intention of the testator in the case to be decided should be the same as that of the testator in Dodson v. Grew, as to the end of preserving the estate for the remote descendants of the first devisees, and that those intentions are to govern without producing the same result. In Dodson v. Grew the limitation was to the male issue; and, in the case to be decided, the intention was to provide for both male and female issue; and in that the cases differ. The words “lawfully begotten” in Dodson [133]*133v. Grew, restricted the limitation to be, legitimate issue; but the law would have interposed that restriction; so that those words were redundant. Legitimate issue in England was the only inheritable issue. —'Here illegitimate issue may be capable of inheritance by adoption. But these are things that influence nothing but the course of the inheritance without affecting the existence of the inheritance. The case of Cook v. Cooper was to R. C. for the term of his natural life only, and, after his decease, *to his issue as tenants in common. In this case, K. H. could never have taken an estate tail, as he did, if terms excluding the female issue, restricting the issue to such as were of his body, or to those lawfully begotten, were necessary.
It is to be remarked, that the counsel for the defendants have not attempted, otherwise than in an oblique way, to answer my argument drawn from a comparison of the case now to be decided with the case of Dodson v. Grew.
It is still more remarkable that my argument upon the implicative branches of the "devise, and upon the incompatibility of the particular with the general intent, on which I most relied, has been passed without any direct attack. I infer that the cases there cited, and the reasoning there taken from the books are admitted to apply, and cannot be resisted. If “child or children” will not carry the inheritance, we have the word ! ‘issue and the competency of that to carry an inheritance is admitted by Mr. Love himself.
Mr. Love seems to admit, if his construction of the will should prevail, that it was incompetent to provide for all the descendants of the devisee William. — Indeed, he contends, ‘ ‘if Wm. Carr the devisee had died, leaving grandchildren, but no living child, that those grandchildren could not have taken the estate.” This is certainly true, if William did not take an inheritance; and therefore all the cases (including Koy v. Garnett) expressly declare that the first devisee shall have the inheritance as the only means of casting it on the grandchildren and remote issue.
It is said by Mr. Love, it might be safely admitted that William Carr took a fee conditional at the common law; for, said he, the condition did not happen, and therefore Wm. Carr never had a fee tail or absolute fee-simple. Mr. Love wholly' forgot that the act of 1776, amended by the act of 1785 (see Rev. Code, vol. 1, page 158, sect. 9,) had expressly discharged these estates of the conditions, and declared them absolute fee-simple estates.
It is next contended, that although the estate might, in England, be construed an estate tail to effectuate the general intent, yret to construe it here an estate tail would not effectuate the general intent; because the act of Assembly immediately turns it into a fee-simple, which does not answer the general intent.
It may be true that the operation of the act does thwart the general intent in some degree, but not altogether; *for the general intent is better fulfilled by leaving the estate to descend to the issue in case the devisee does not alien, than by robbing the issue of it, at all events, as will be the case if the first deviseo take only an estate for life. The issue might be barred in England too by alienation through “fine and recovery.”
But this question so laboured by Mr. Love has been 'closed forever by as well the Legislature as the Court of Appeals.
Hirst, the Legislature hath declared “that every estate in lands which hath been limited, or hereafter shall be limited, so that, as the law aforetime was, such estate would have been an estate tail, shall also be deemed to have been, and to continue an estate in fee-simple.” Act of 1776, amended by the act of 1785,
Mr. Wickham has urged the same matter that Mr. Love has, in two cases before the Court of Appeals,
In resuming the discussion of the case of Roy v. Garnett, Mr. Love says, all the children that James might have were not provided for, without giving an estate tail; and in the case to be decided the children are all provided for. Now, a provision for all the children is creative of an express estate tail; and, instead of weakening, strengthens the implication.
Again, Mr. Love says, the children of William would have been tenants in common under the limitation to the child or children. In Cook v. Cooper before cited, the limitation was to the issue of the tenant for life “as tenants in common;” and yet the estate was adjudged to be a fee.
Mr. Love seems to admit that the issue of William Carr the devisee could not take by way of executory devise; and the case of Carter v. Tyler, in 1 Call’s Reports, (without going further,) proves his correctness. Now, if they could not take by way of executory devise, they could not as contingent remainder-men, they not being in esse.
Williams, on the same side. It has been correctly stated, by counsel, that the single question is, whether William Carr the younger took an estate for life or a fee. If a fee, *tben the decree of the chancellor dismissing the bill must be reversed.
In viewing this case, I will first consider it, as if it were now to be decided in Westminster-Hall; and secondly, I will inquire whether the acts of Assembly of Virginia have made any difference in the rules of construction.
The rules which have been adopted, in construing wills in Westminster-Hall, are:
1st. That the intention of the testator [134]*134shall prevail, if it be not contrary to the rules of law.
2d. That where there is a general and particular intention manifested in a will, and they cannot be reconciled, the particular intention must yield to the general.
3d. That the intention must be gathered from the will itself.
4th. That no subsequent event can vary the construction of the will; but it must be the same in every event.
Sth. That no exposition shall be given which will tend to a perpetuity.
Another rule was, indeed, added by Mr. Wickham, “that wills shall be construed according to the existing laws of the country, in which they are made.” This I'shall notice, when I come to consider the operation of our acts of Assembly.
Having premised thus much, X come to consider what estate William Carr the younger took under the will; whether an estate for life or in fee: if the former, the Chancellor’s decree is right; if the latter, it is erroneous, and the complainant is entitled to dower. In doing this it will be important to examine the different clauses of the will which relate to the devise in question.
The testator first devises to his son William Carr the estate which is the subject of the present controversy, during the natural life of the devisee, and after his decease to his child or children; if none, remainder to'his other son John Carr, &c. He then declares his intention to be, that all his children should have an equal share of his estate; and, finally, he provides, that, should all his dear children die without issue of their bodies, his dear wife living, one half the life estate should go to his dear wife, remainder over, &c. So that the testator has manifested his clear intention to make all his children equal, and that the estate should not go out of his family until there should be an indefinite failure of issue in all his children.
If this case had occurred in England, the words child or children would, upon the face of the whole will, be expounded *to be synonymous with the word issue. On this point I shall refer to one of the authorities cited by Mr. Wick-ham ; 3 Term Rep. 484. The page to which I wish to call the attention of the court, is 493, in which Judge Buller says, .that children and issue have the same meaning. The same doctrine will be found in 2 Fon-blanque, c. 3, sect. 3, and 2 Lord Raym. 1437. This is done to effectuate the plain and manifest intention of the testator.
If the words children and issue mean the same thing, and which is proved by the authorities above referred to, it remains to consider whether a devise to a man for life, remainder to his children, be not an estate tail. If so, it follows as a necessary consequence that William Carr took an estate of inheritance. The will should be read, as to William Carr for life; remainder to his children; and, if he die without issue, remainder over. Such a devise in England would be deemed a strong estate tail.
Shelley’s case, in the 1 Co. 89, is a much stronger case in favour of a life estate, yet it was determined not to be a life estate in Edward Shelley; even though it was limited to him for life; remainder to his heirs male of his body, and to the heirs male of such heirs.
The case of Goodright v. Pullen
The case of Coulson v. Coulson,
The Court is first to consider what estate William would have taken before the act of Assembly. If he would have taken a fee tail, then by the operation of the act it is. converted into a fee-simple. It is unimportant with us in which light it is considered. According to Mr. Wickham’s, argument the estate for life to William merged in the fee until a child should be born; there being no intervening *trust estate to prevent it. Let it be admitted, then, that William took an estate tail, to be divested only by the birth of a child. In this case the testator evidently meant to provide for the issue of William, as long as any descendant of his should be alive. We ought therefore to adopt that construction which will best effectuate that object. But let us suppose, for the sake of the argument, that William took only an estate for life. What would be the result? If he had had a child or children, they would have taken only an estate for life, (if the case had occurred in England, ) because there are no words of inheritance. This would frustrate the general intention of the testator; because he declares that, should all his children die without issue, the estate should pass to others specially named: thereby manifesting a plain intention to provide for the case of an indefinite failure of issue; which has always been held to pass a fee tail.
It is said by Mr. Wickham that “children” is a word of purchase in this case, because the testator intended they should all take together. The testator uses both the words “issue” and “child:” and his intention was, that the estate should go to the child or children, or to the issue and the heirs of that issue. Yet that would make it an estate tail.
[135]*135The case relied upon from 3 Term Rep. to shew that child is a word of purchase, has no application. In that case the testator evidently shewed his intention to be, that the children should take as purchasers. There the estate was to go, in remainder, to the children of a woman by a particular husband, as tenants in common; and words of inheritance were superadded, which is not the case here.
If this case had been before a Court in England, and Mr. Wickham be right, the children of William Carr would only take an estate for life; but, if I am right, they would succeed to an estate tail.
But it is said, that in England, this would be an estate tail in William, to be divested on the birth of a child. If so, he had an estate for life; remainder to his children for life; remainder to himself in fee tail ; or, in this country, in fee. Admitted: for, according to Mr. Wickham’s argument, the life estate merged in the fee, until a child should be born. As that event never happened, he died seised in fee, and consequently the appellant is entitled to recover.
In England this will would be so expounded, that none of the family of William Carr should be disinherited. Yet, ^according to Mr. Wickham, if William Carr the younger had had a child, and that child had had issue, and died in the life-time of William, that issue could not take; because the description must be completely answered to enable the devisee to take as a purchaser.
If then in England, William Carr the younger, would have taken an estate tail, let us examine whether the acts of Assembly have made any change in the rules for expounding wills. The first act to which I shall call the attention of the Court is the act of 1785.
But take the case upon the act which declares that words of inheritance need not be superadded.
The rule that title by descent is the more worthy, equally applies in this country. Thus, if a person devise *to his children generally, they would take by descent, because we cannot change the law. The case in Salkeld,
But it is contended, that the Court must change the rules of constructions in wills because of the act of Assembly docking entails. This is answered more ably by the opinions of the Judges in Tate v. Tally,
It is said by Mr. Wickham that the Court will reject all artificial rules of construction, and look only to the intention of the testator; and that the will should be so expounded as to effectuate that intention ; not to defeat it. This is bringing the argument in a different shape to the former position, that the Court will adopt a new rule of construction. In the cases of Tate v. Tally, and Hill v. Burrow, the' same effort was made; but the decision of the Court, it was presumed, had forever put the question to rest.
Having endeavoured to shew, upon English authorities, that William Carr would have taken a fee tail; and that our acts of Assembly do not change the rule, I will beg leave to inquire what was the intention of the testator upon the face of the will itself. The object of the testator was not merely to provide an estate for William during his life, but for his most remote issue^ This could not be effected, unless [136]*136my rule of construction should be adopted: for, to take as a purchaser, the person must answer the description in all its parts; grandchildren not answering *the description in the will, the estate would have gone out of the family.
If then I have shewn that, in England, children would have been considered a word of limitation, in order to effectuate the general intent; in this country, the rule should be the same, according to my view of the acts of Assembly. 1st. Because, prior to 1776, this would have been adjudged a fee tail in William. 2dly. Because, by expounding the will so as to make the children take as purchasers, the grandchildren would have been excluded, if any. 3dly. The testator, if he had been asked, would certainly have declared that such was not his intention.
The cases of Brewer v. Opie,
By adopting my rule of construing the will, the testator’s general intention would be effectuated by providing for the remotest issue of his son, and every part of the will would stand together. I should read the will thus: I give to my son William Carr (certain lands) for and during the term of his natural life; and, after his death, remainder to his issue: but, if he die without issue, then to John Carr and Betsey Tebbs, &c. But if all my dear children die without issue, remainder over. My will and intention is, that all my dear children shall have an equal share of my estate. To read the will thus, would effectuate the manifest object of the testator: and this is the only mode by which all parts can be reconciled.
But, if I am mistaken, and the exposition of Mr. Wickham be adopted, that William took an estate in fee tail subject to be divested upon his having a child, as that event never happened, he necessarily died seised of such an estate, whereof his wife could be endowed; and therefore the decree of the Chancellor must be reversed.
Curia advisare vult.
'^Saturday, June 20. The Judges delivered their opinions.
JUDGE TUCKER.
The question which the Court is now called upon to decide, is upon the construction of the will of Wm. Carr the elder; wherein the testator, b3r express words, devises an estate for life to each of his three children, with remainder to the children of each, and in case of the death of either without children, remainders over to the survivor or survivors of his own children.- — The particular clauses relative to his son Wm. Carr, jun. are thus stated:
He gives to William Carr sundry tracts of land, and among - others, one recovered of T. Mason’s executors; and, after the death of the testator’s widow, Aga, and her children, during the natural life of the dev-isee : and, after his decease, to his child or children; if none, to his son John Carr, and his daughter Betsey Tebbs for life; and then to be equally divided between ' their children. And by a codicil he declares, that should all his dear children die without issue of their bodies, his wife still living, one half of the life estate to go to his wife during her natural life, with remainder over, &c.
The cause has been ably and elaborately argued by the counsel on both sides. On the part of the plaintiff, it is contended that William Carr, jun. took an estate of inheritance, of which his widow, one of the plaintiffs, might be endowed, by virtue of the above devise; according to the rule in Shelley’s case, that whensoever the ancestor, by any gift or conveyance, takes an estate for life, (though limited by any restrictive words whatsoever,) and, after, in the same gift or conveyance, a limitation is made to his heirs, in fee, or in tail, the heirs shall not be purchasers ;
To establish the application of this rule to the present case, the counsel for the plaintiff have adduced a number of cases where the limitation over has been made to issue of the first taker; in which he has been adjudged to take an estate tail, according to the rule in Shelley’s case: and then, reasoning by analogy, they contend that, as the words “issue” and “children” both mean the same thing, in a natural sense, they are to be taken as meaning the *same thing also in a technical sense; and hence infer, that whenever, an ancestor takes an estate of freehold, and, in the same will, there is a limitation over to his children, the children shall not take as purchasers. In other words, the estate so limited shall be construed to vest an inheritance in the first devisee, whatever words the testator may have used to shew he meant to give an estate for life only. That the words “heirs,” “issue” and “children" are not synonymous, must be known to every man the least conversant with legal distinction. By the common law a conveyance to a man and his heirs, gives him an estate in fee-simple, the highest estate in lands that a subject could have: one to him and his issue would only create an estate for life; to him and his children, if he had any at the time, would have created a joint-tenancy with them for life only,
I shall now cite a few cases which appear to me to support the opinion I have given.
In Wild’s case
■ And that the resolution in that case was afterwards overruled in Webb v. Webb, in the House of Lords,
In the case of Carter v. Tyler,
JUDGE ROANE.
I will consider this case in two points of view.
1st. Independently of the act of 1776 docking entails, and the act of 1785 dispensing with the necessity of words of inheritance to pass a fee: and 2dly. As affected by those acts.
As to the first point of view, it will be found that Shelley’s case is the substratum of the whole edifice. In that case it was ruled, that wherever the ancestor takes an estate for life, and after, in the same conveyance, a remainder is limited, mediately or immediately', to his right heirs, or to the heirs male or heirs female of his body, that, in such case, his right heirs, or heirs male or female, shall not be considered as purchasers, but shall take by descent. The reason given for this is, that, as the heirs, or heirs male, &c. could not take as purchasers, not being in esse, and could only take through the ancestor, the estate for life was enlarged for their benefit. Another reason is given, from the parity and conformity that this limitation bears to a limitation to A. and his heirs, or to A. and his heirs male or female of his body: for as this gives an estate for life by implication, and more, so the other gives him the same in express words, and more; ex expressio eorum quse tacite insunt nihil opera-tur.
*As it is generally said that estates tail are implied for the benefit of the issue in tail, so, under the first reason just stated, a fee-simple is also raised in favour of the heirs, on the same principle: but it is evident that the rule in Shelley’s case does not apply to any case, where the persons in remainder can take, and were intended to take as purchasers.
The rule in Shelley’s case being thus established, other expressions deemed equal in effect with the words heirs of the body, such as issue of the body, and men children of the body, were also construed to enlarge the estate for life into an estate tail. It is justly said, however, in King v. Melling,
In the case at bar, the term is not only children, (certainly much lessj a term of limitation than issue,) but words of ^inheritance are, in effect superadded in the will, by the operation of the act of 1785, which gives a fee, wherever a less estate is not limited by express words, or does not appear to have been granted, conveyed or devised, by construction or operation of law.
In the same case of Ginger v. White, it is said that it is a mistake, that the terms issue or children in a will, where there are none in esse at the time, do as necessarily create an estate tail as the words “heirs of the body” do in a deed; and that they shall only be so construed, where that appears to be the intention of the testator. How the intention was in the case at bar, will presently' more particularly appear.
In the case before us, the devise was to Wm. Carr during his natural life, and, after his decease, to his child or children; if none, to John C. and Betsey Tebbs for life; and, then, to be equally divided between their children.
This devise for life to Wm. Carr, and which is said by the Chancellor, in his decree, to be no less than eight times repeated in the will, as relative to the several dev-isees, is certainly as strong as the devise to James for life, in the case of Roy v. Garnett; and which, as is said by the President, denoted the intention of the testator [140]*140in that case to be, “to devise an estate for life, as manifestly as if confirmed by one from the dead.” (p. 31.)
The devise for life in our case is, perhaps, taking' the whole will into consideration, not less strong than the vaunted devise ‘ ‘for .life and no longer,” in the case of Robinson v. Robinson;
Thus stands the strength of the devise in our case, as relative to the devisee, Wm. Carr: let us now see how it stands in relation to the ulterior limitation—
As upon the will, (exclusively of the codicil,) the limitation is, after the decease of Wm. Carr, to his child or children. In Wild’s case,
The case of Ginger v. White not only recognizes the above case of Wild, but is, perhaps, 'still stronger, and is very similar to the case at bar: it would bear out the opinion I now entertain upon the case before us, even if the term children used in the will were, by virtue of the provision in the codicil, enlarged to mean issue, and so as to comprehend children ad infinitum; which, however, I shall presently attempt to shew, is not the case. In the case of Ginger v. White, a devise to John for life; and, from and after his decease, to his male children successively, one after another, and to their heirs, and in default of such, to the female, &c. and in case John shall die without issue, (that term not restricted, as in the codicil in the case before us,) was held to pass only an estate for life to John. These two cases strongly a,pplied to the case at bar. Wild’s case is expressly in point; admitting the case at bar to stand singly upon the word children mentioned in the will. The other case extends to our case as standing upon the will and codicil, and even admitting the term children, in the will, to be extended, by the codicil, to be commensurate with issue of the body collectively taken. But this is not the case. The provision of the codicil is, “should all my dear children die without issue of their bodies, my dear wife living, one half of the life estate to go to my dear wife, during her life, and the other half to go to Thomas Chapman,” &c. (persons in esse) “during their lives,” &c. This limitation over, in favour of persons then living, clearly shews that the testator used the term issue, in this case, as synonymous with children, and not as importing descendants ad in-finitum. Nothing is more clear than that the word “issue” may be used in the one sense or the other, so as best to answer the intention of the testator. As, in this countrj', the term “children” now carries a fee, there is less reason to restrain it into a word of limitation, than in England, as every purpose is already answered.
Notwithstanding what is now said, some strong cases have been cited to shew, that an express estate for life may be enlarged into an estate tail, to effectuate the manifest intention of the testator. It was to effectuate such intention, that the devise in the case of Robinson v. Robinson, was decided to enlarge the life interest into an estate tail: *but there are some strong features in that case, which do not exist in the present. In that case, E. H. and his son, were to take the name of Robinson ; and it was deemed improbable that thei testator would impose and perpetuate the name upon him, and yet, that the estate, in consideration of which it was to be assumed, was to endure only for life. In that case, also, the “perpetuity” of his presentations was given to E. H. (subject, &c.) “in the same manner and to the same uses as he had given his estate;” thereby explaining the former devise by the latter.
The case of Roe, on the demise of Dodson, v. Grew,
In all those cases, therefore, there was a general intention strongly appearing in the will, (which does not exist in the case before us,) overruling the particular intention, and enlarging the life estate into an estate tail. This, however, can only be done (where the life estate is express) to effectuate the manifest intention of the testator.
In the case at bar, nothing is gained in favour of intention, (and, therefore, no such intention shall be admitted to have existed,) by construing the limitation to be an estate tail, for it iseo instanti converted into a fee-simple, by virtue of a general law, of which the testator could not have been ignorant. It is more agreeable to his intention that his grandchildren, (the children of Wm. Carr,) for whose interest he seems anxiously to have intended to provide, should succeed in remainder, and their posterity under them for ever, by virtue of the act of 1785, (although possibly some of the grandchildren of Wm. Carr, the son and devisee, might not, in consequence of their father’s dying in their life-time, come within the descriptio personae stated in the will, and therefore might be excluded,) than that the fee-simple interest should at once vest in the first devisee, and [141]*141he be thus enabled to disinherit all the testator’s progeny descending through him: and the Chancellor is certainly very correct in saying, that the intention of *the testator to provide for his grandchildren, is the sole argument used on the part of the appellant’s counsel, to au-thorise and produce a destruction of their interests!
Such are my impressions upon the first point above stated: and, if upon the mere doctrine of English law upon this subject, an estate for life only would accrue to the devisee of ffm. Carr, this is much more the case, when we take into our consideration the two acts of 1776 and 1785.
The first cuts up by the roots the pretence of implying an estate tail for the benefit of the issue, and the second guaranties to a son or child, claiming in remainder as a purchaser, the absolute fee-simple property in the land. This last consideration has before been stated, as one which lessens the necessity for construing the term issue to be a word of limitation rather than of purchase. Nothing is more clear than that those acts, if they are to be taken into consideration in the present case, would make the appellant’s case much weaker than it is, in so far as we are inferring an intention on the part of the testator to provide for the issue of the devisee.
But in the case of Tate v. Tally, this Court concurred in opinion with the Legislature, that, in construing what was or was not an estate tail, we should have reference to the former laws, and that, as to the construction to be made in relation to that point, we should inquire what the “law aforetime (i. e. before 1776) was;” and one of the Judges in that case said, with great propriety, “that the intention of the act of 1776 was not to alter the established rules of construction.” In a case, however, where the intention of the testator is alleged, under pretext of providing for his issue, but in reality to infer an estate which will defeat them, it would seem proper to rebut that allegation, by resorting to a posterior general law, without an ignorance of which, it is impossible that any such intention could have existed on the part of the testator.
In the case of Tate v. Tally, it was argued by one of the counsel, (who differed widely in opinion from the appellant’s counsel in this case,) that as estates tail were implied for the benefit of the issue, and as, since 1776, entails are destroyed, and the benefit to the issue no longer exists, the reason of the rule ceasing, the rule ought also to cease.
The counsel alluded to in that case appears, for a moment, to have forgotten that the reasons (or some of them) in Shelley’s case, have also ceased, and yet that the rule continues; that although the feudal reason of requiring 'x'words of inheritance to carry a fee has also ,perhaps, ceased, it was not for this Court, but for the Legislature, by the act of 1785, to atter the rule itself; that it is better, perhaps, to have some established rules of property, after the different reasons thereof have passed away, than to be in a perpetual state of uncertainty whether the reason of the rule exists or not; and that, so far from the Courts having power to abolish the rule in question on this ground, the Legislature have positively set up, e contra, the whole system of rules in relation to estates tail: although eodcm statu it destroyed (as to many cases) the reason of the rule: and a similar power belonged to, and has since been exercised by, succeeding Legislatures.
On these grounds then, that, neither before nor since the act of 1776, a greater estate than one for life can be construed to have passed to William Carr by the will of his father, I am of opinion that the decree of the Chancellor is correct, and ought to be affirmed.
JUDGE) FlLLMING.
This case has been so fully, and so ably investigated and elucidated by the Judges who have preceded me, that little remains for me to say; as it would be a waste of time again to travel over the same ground; and I shall only observe that it is a rule too well settled to-need repeating here, that in the construction of a will, the intention of the testator is to govern in everj’ case, where it does not contravene a well established rule of law: and it was well observed by the late venerable and enlightened President of this Court, “that adjudged cases have more frequently been produced to disappoint, than to illustrate the intention; and that where such intention is apparent, cases must be strong, uniform, and apply pointedly, before they will prevail to frustrate that intention.” And it appears strange to me that so much pains have been taken, and labour spent in the case now before us, in attempt to prove that the words used in the devise to Wm. Carr, gave him, by implication, an estate which is now (and at the time of making the will had long been) unknown to our laws; that it might be magically transmuted into an estate in fee; in order to frustrate and defeat the plain, manifest will and intention of the testator. The case appears to me so clear, that I shall only add my hearty concurrence in the opinion that the decree ought to be affirmed.
* JUDGLYONS.
I shall make short work of all questions arising on the construction of wills made since the act of 1776: so far at least as it may be necessary to decide whether the testator meant to pass a fee tail or not. I will not suppose, after that act, that a man intended to convey an estate tail, (which the law has expressly abolished,) unless plain and unequivocal words are used, such as would of themselves create a fee tail, without resorting to implication; as a devise “to A. and' the heirs of his body,” or “to A. and if he die without issue,” &c. To fulfil the plain, and manifest intention of the donor, the limitation must be equally plain and express ; but not an implied limitation by mere construction to enlarge an express estate for life to an estate in fee or fee tail. Hor, if the donor did not mean an estate tail, but only used words which, by construction, might be so implied, in order to fulfil his intention; are they now, without necessity, and by implication only, to be construed into a fee tail to defeat that intention? The construction ought to be as. [142]*142near the apparent intention of the parties as possible, and as the law will permit. Where words are doubtful we should inquire into the intention; and, if that be clear, we should put such a construction on the words as will best carry the intention into effect, and reject that construction which manifestly tends to overthrow and destroy it, if such intention be not contrary to express rules of law. We are not to put words in a deed, or will, which are not there, nor construe them in direct opposition to the plain sense. But when the intention is plain and manifest, and the words doubtful and obscure, it is the duty of the Judge to be astute in endeavouring to find out such meaning in the words as will best answer the intention of the parties,
An estate tail in the case of land, has been raised by implication to enlarge even an express estate for life and give an estate tail to favour the testator’s intention: but ought not now to be made, by implication, to destroy that intention, when he meant only to give an estate for life: for the testator’s intention shall make words either an estate for life or an estate of inheritance, as shall best promote that intention,
Apply the above rules of construction to the case before us; and the question is at once decided. The intention
1 Rep. 89.
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