The Chancellor.
This Court has heretofore determined, in the case of Anderson v. Jackson, that the devise of the share of either of these two brothers, when either should die without issue, to the survivor of them, was valid as an executory devise; and that Medcef Eden the younger, on the death of his brother Joseph, took the lands devised to Joseph. But this Court did not, in that case, decide, what estate Medcef Eden the younger took, in these lands. The cause now before us, renders it necessary to determine the nature and extent of his estate.
What Anderson v. Jackson decided.
When Medcef Eden, the younger, came into possession of these lands, the first of "the two executory devises took effect. That devise then ceased to be executoiy, and the estate which it conveyed vested in possession.
When 1st ex-toTk^etThi M. E.
The Supreme Court hold, that when the first of several executory devises vests in possession, those which follow , . . , A, _ . vest m interest, at the same time, ana ceasing to be executory, become vested remainders, subject to all the incidents of remainders. This doctrine is sufficiently supported by the cases cited by the. Supreme Court, and it is clearly supported by the opinions of Fearne, Williams and Cruise, in their commentaries on this branch of the law.
when 1st ex-ecut0I7 de,vise vests, those following are vested remam-
The doctrine itself seems conformable to some other principles. It is a rule that no remainder can exist, without a preceding estate to support it; and by another rule, whenever a devise of a future interest can take effect, as a remainder, it shall be so considered. It is entirely agreeable to these tules, that when the first devise becomes executed and form [390]*390a particular estate capable of supporting a remainder, succee¿ing devises shall be considered as remainders.
[389]*389This conforms to °ther ru'#s‘
[390]*390considered.’0118
The objection to this doctrine is, that it may often defeat the intentions of the devisor. The essential difference between a remainder and an executory devise, being, that a remainder may be destroyed, and that an executory devise is protected; the real effect of this doctrine is, in some degree to narrow the operation of executory devises. If in a series of contingent devises of the same land, all which succeed the first, are considered as becoming remainders, when the first is executed and vests in possession; these succeeding remainders may be destroyed, and the intention of the devisor, in making the more remote dispositions may be frustrated. But these remainders can be defeated only by the owner of the preceding estate in possession; when this is done, the interest of a distant devisee is extinguished for the benefit of a prior devisee. Such an ex-tinguishment cannot, in general, take place, until a considerable time after the death of the devisor, when the characters, situations or necessities of the devisees, may be very different from those which the devisor regarded as probable; ■ and though the intention-of the devisor, may be sometimes defeated, they are contravened only in favor of a nearer object of his affections, and for the purpose of unfettering the land from future interests long postponed. Our laws allow the owner of lands to devise them, according to his affections or his pleasure, when he gives his own absolute property in them: but when he devises a title which is absolute in himself, to different persons in succession, upon events and contingencies, which cannot occur, until long after his death, he seeks to establish a special course of succession and to give law to posterity. These contingent dispositions, when confined within moderate limits of of time, are without objection, and are often very suitable provisions for the reasonable exigencies of families. When they are' allowed to prevail through a long period, they become pernicious, and by whatever name they may be called, are in effect entails, attended with all the evils of unalienable property in land. The rule that an executory devise shall not prevail, when it extends beyond a life or lives in being and 21 years and 9 months af[391]*391terwards, is the first and great restriction upon these dispositions; and the rule now in question, is in effect, a farther restriction upon remote dispositions, which if they operate at all, can take effect only after two preceding estates have had their completion. Thus, in the case before us, the last devise to John Eden and Hannah Johnson, could never take effect, until the two preceding estates of Joseph Eden and Medcef Eden the younger, should have ceased. Where a devisor wishes to make provision for several persons, in different events, his purposes may often be as well accomplished by devising his land Li parts, with executory devises of parts, upon single contingencies, as by the method so usual in England, of devising the whole or a large part of an estate to various persons, upon many successive contingencies. The desire to preserve an estate or a large part of it entire, as long as may be possible, is frequently a strong motive for remote executory devises-; and so far as such divises may tend to prevent or postpone the division of lands, there is in this state no reason of law or motive of policy to support them. But all our law on this subject, is derived from England. If this rule operates as a restriction upon the power of the devisor to bind his lands, by a series of con t.ingent devises, which from the number of lives concerned, may extend to a period long after his death ; and if such a restriction has been found proper in England, it is still more proper here. We have abolished entails, and all dispositions of the nature of entails, are opposed to the policy of our institutions. The doctrine in question is entirely in accordance with the policy of our statute abolishing entails ; and . i • , , ' ’ contingent devises subjected to this restriction, still have an operation sufficiently ample, for all salutary purposes. If this doctrine is law, I am sensible that it is not necessary here, to discuss the policy of the rule ; and I concur with the Supreme Court, in holding it to be law, upon the authorities which that Court has cited. But as some of the English cases are indistinct upon this point, and the question is here new, I have thus briefly examined the principle involved in this rule and its practical effect.
Entails abol¡shed; and H-nature “of entails e™lrary to our policy-
The ultimate devise to John Eden and Hannah Johnson, was in fee simple. If, when the preceding estate of Medcef [392]*392Eden the younger, vested in possession, the right of John p¡qen au¿ Hannah Johnson became a remainder, it must have been a remainder after a fee tail. Considering both these devises as becoming executed at the same timo, and regarding them in connection, the estate of Medcef Eden the younger, was a fee tail, and the succeeding estate of John Eden and Hannah Johnson, was a remainder in fee . , _ . , „ , r,,, simple, upon the termination of that estate tail. The case is so often mentioned in the English books, as an estate tail by implication; and this case is entirely analogous to those in which that construction has prevailed. Cruise’s Digest, title Devise, ch. 18, sections 29, 30 and 31.
[391]*391Dev’se to J E. came1, a ’ »' [392]*392™a™g®r which last arose by implication.
Statute turned ple!*t0 fec sral'
The consequence of this construction is, that our statute enacting that estates tail shall be estates in fee simple, converted the estate of Medcef Eden, the younger, into an estate in fee simple.
To say that devise to J. E. and H. J. does not go over, is not inconsistent with Anderson v. Jackson.
These principles decide this cause; and they render it unnecessary to consider other questions which the cause presents. But it is proper here, to consider the decision of í _ 1 r 1 this Court, in the case of Anderson v. Jackson, so far as to g^ow^ that my opinion in this cause, is consistent with that decision. This Court decided in that case, that the estate of Joseph Eden, was not a fee tail. That decision was evidently made, in order to give effect to the intention of the devisor; he having declared, that the survivor of his two sons, should have the share of the son who should first die without issue. This Court appear to have been governed in making that decision, by two reasons; first the meaning of the terms, dying without issue, which were understood in their ordinary sense ; and secondly, the plain and forcible import of the term survivor. The first of these reasons has equal force, in respect to the devise to John Eden and Hannah Johnson; but the second reason is not applicable to the last devise, the devisor not having described John Eden and Hannah Johnson as survivors. In deciding, therefore, that the estate of Joseph Eden was not a fee tail, this Court by no means determined that the estate of his surviving brother, Medcef Eden the younger, was not such an estate.' The use of the word survivor in the first case, and the absence of that term or any word of similar import, in the last case, [393]*393form a strong distinction between the two executory devises. The question in the case of Anderson v. Jackson was between the right of Joseph Eden and the right of Medcef Eden the younger. It was not necessary in that case, to determine, and this Court did not determine, the exact nature or extent of the estate which Medcef Eden the younger took, upon the death of his brother Joseph. The ultimate devise to John Eden and Hannah Johnson, was not in question, and nothing concerning their interest was or could be decided upon that occasion. The construction and operation of the two executory devises, in their relation to each other, presented questions, which were not before this Court, were not considered, and were not decided in that case. Indeed, these questions, as they now stand before us, could not arise, until after the death of Medcef Eden the younger. The opinion, that the last executory devise to John Eden and Hannah Johnson, was extinguished in the estate of Medcef Eden the younger, is therefore, I conceive, perfectly consistent with the former decision of this Court, that the first ex-ecutory devise to Medcef Eden the younger, took eifect upon the death of his brother Joseph.
In using the expression, fee tail and estate tail, I mean throughout, such an estate as would have been in this state a fee tail, before the twelfth day of July, 1782, when the first statute abolishing entails was passed.
To recapitulate:
1. The interest of John Eden and Hannah Johnson, became a vested remainder, when the preceding estate of Medcef Eden the" younger, vested in possession.
tion!eCapita!*
2. In these circumstances, the estate of Medcef Eden the younger, was a fee tail, with a remainder in fee simple, to John Eden and Hannah Johnson, upon the termination of the estate tail.
3. Our statute converted the fee tail of Medcef Eden the younger, into a fee simple absolute.
I am accordingly, of opinion, that the judgment should be affirmed,
Cramer, Senator. This case is brought before us by writ of Error, upon a judgment of the Supreme Court, giving a construction to the will of Medcef Eden, the elder.
[394]*394Two principal questions are raised:
q What estate did Medcef Eden, the younger, take in the lands devised to his brother Joseph, on the death of the latter without issue, in July, 1812 ?
2. What estate, if any, did John Eden and Hannah John son take on the death of Medcef Eden, the younger, without issue, in July, 18191
1st question same as in derson v. Jackson.
The first and main question, is the same which was agitated and decided by this Court in the case of Anderson v. Jackson, (16 John. 386.) The decision in that case was on the same will, and in effect between the same parties ; for though Anderson was the defendant in that suit, yet the Bank (as I understand the history of the case) on an allegation that they held property to a large amount depending on the same question, were permitted by this Court to be heard by their counsel, in opposition to the then claim of Medcef Eden.
This Court is, then~ called on in a very solemn and impressive manner (for much ingenuity and legal learning have been displayed on this point by the counsel on both sides) to review its own decision on an important rule of law, affecting titles to real property. And though several members of this Court did, soon after the commencement of the argument on this point by the plaintiff's counsel, express a reluctance to suffer it to be at all agitated, yet it has been very fully and ably discussed; and manifestly, is the point on which they principally rely. I have, therefore, listened to the arguments, and examined that case with attention, and I am entirely satisfied as to the soundness and correctness of that decision; and I am also satisfied that it is in harmony with the most approved decisions in England, before and since our independence; that it is consistent with our policy, is supported by the ablest judical opinions in our sister states, and ought not now to he disturbed.
But we have not, in my view of the subject, the power (and by power I mean right) now to question or impeach that judgment rendered by this Court, and founded on the uniform decisions of the Supreme Court during a period of more than seventeen years.
The maxim stare decisis mndtcated-
_ Particular ^g fromPthat maxim,
These evils, however, might be transient; and affecting a few hundreds only, or possible a few thousand individuals, . would probably terminate and be forgotten with the present generation. But a more momentous and ruinous consequence, would be the total insecurity of property, and all personal rights. An appeal, or writ of error, would be renewed, on the same point, at every session, like petitions for bounty lands, or bank incorporations, in the perpetual hope of finding a friend in every new member. Law suits would be multiplied and interminable; or decided, only by the perseverance of suitors, or rather by the length of their purses. Men of discretion, friends to peace, order and industry would flee a country were nothing is stable or secure.
General evil ofdomSso*
Various attempts have been made in the House of Lords in England, sitting as a Court of appeal, to reconsider with a view to reverse their own decisions, but ultimately without success. A collection of these cases may be found in a note to 1 Ridgway’s Reports, 509. In one of these cases, (Broughton v. Delves,)(r) Lord Cambden was for reversing the judgment of the King’s Bench. The house had been [396]*396equally divided whereby the judgment of the K. B. -was a;ffirmed against his opinion; but on a petition for a re-hearing he strenuously opposed it, and the petition was unantmously rejected.(s) I hope that we may, and I trust we shall, exhibit equal firmness and stability. Thus, we shall suppress a repetition of such attempts in future, and preserve to the citizens of this state one judicial forum, where the wearied and exhausted suitor may ascertain his rights, and repose from litigation.
[395]*395th^Houso of l,ords.
[396]*396Remedy is properly legislative.
If any general mischief or inconvenience should at any time be experienced from this or any other docision of ours, the legislature are competent to apply a remedy, and will no doubt do it, with a saving as to all rights acquired under those decisions.
Anderson v. Jackson decides that devise to M. E. was good, as executory devise.
Ground of decision.
By the judgment of this Court in the case of Anderson v. Jackson it is decided that the devise over to Medcef, on the death of his brother Joseph, without issue, was a good executory devise. This decision rests on the single circumstance of the word survivor, which necessarily limited the failure of issue to a life in being; and the Court as well as the counsel, unanimously agreed, (as may be collected from their arguments and opinions,) that if the limitation over had been on a mere failure of issue, without the use of ' the word survivor, it would have been void, as being a limitation on an indefinite failure of issue; and so tending to a perpetuity.
The words dying without issue, per se, mean indefinite failure.
Such, is the inflexible rule of law, established and respected for ages, and to depart from it, at this day, might unsettle half the titles in the state. By that judgment it was decided that Medcef Eden was, and had been since August 29th, 1812, entitled to the possession of all the real property which by the will of his father was devised to Joseph, and by necessary implication, that the title of the Bank and of the other plaintiff in Error, ceased on that day; being the day on which Joseph Eden died.
New suits for land withheld, notwithstanding Anderson v. Jackson;
The ejectment against Anderson was brought to settle, and did settle the effect of the first devise. And it was to be presumed that after the decision of that point, by this Court of the last resort, the persons who had purchased and entered under the title of Joseph, and who had no pretence of [397]*397any other title, would have surrendered the premises to Medcef. This, however, has not been done, and he instituted suits to recover possession of the land withheld. These suits, it seems, were defended ; and before the trial Medcef Eden died, without issue, having devised all his estate to his. wife and her daughters. And the occupants of the lands, devised to Joseph, now resist the claim under Medcef, by setting up the last devise, which is in these words: “ And in case of both their deaths, without lawful issue, all the property aforesaid to my brother John Eden, of Loftus, in Cleaveland, in Yorkshire, and my sister Hannah Johnson, of Whitby, in Yorkshire, and their heirs.” The plaintiffs in Error, now insist, that by this devise, the estate of Joseph and indeed the whole estate vested in John Eden and Hannah Johnson, and that therefore, the devisees of Medcef Eden, the younger, are not entitled to a writ of' possession.
before1"E trial without issue, vis0-
2. The effect of the last devise, therefore remains to be examined ; and in arriving at a just conclusion upon that point, we shall be much aided by recurring again to the case of Anderson v. Jackson. It has before been remarked, that the decision, in that case, turned wholly on the word survivor, which word alone .rescued the first limitation from destruction. This is in unison with the several cases decided by the Supreme Court of this state, from the case of Fosdick v Cornell,(t) to that of Jackson v. Billinger.(u)
Effect of last devise examin-
In all these cases there is no dissent from the opinion, that a general dying without issue, omitting words which confine it to a life in being, is a limitation on an indefinite failure of issue, and therefore void: a construction which cannot be denied, and which is founded in sound • policy, If we depart from this salutary rule, we shall, in the course of a few generations, have a great portion, if not the whole of the landed property, in the state, so shackled as to be rendered unalienable; for almost every man would be desirous to perpetuate his property among his own blood relation, and would therefore limit it to an indefinite extent, if the policy and rules of law would permit. It would be useless and unprofitable to cite an authority, in order to establish the well settled rule of law upon this head. All -those [398]*398referred to by the late Chancellor Kent, in the case of Anderson v. Jackson, and all those cited by the counsel in that case, at page 385, of the volume in which it is reported, so far as 1 have been able to examine and judge of them, concur in its support. It is, therefore, in my judgment, no longer the subject of reasoning or doubt. It has become obligatory upon all our Courts, and can be abolished, or impugned, only by legislative power. Indeed, the ingenious and learned counsel for the plaintiffs in Error, were constrained to admit the antiquity, the uniformity and the paramount correctness of the rule; but they endeavor to escape from its operation, in this case, by insisting that the last devise is on a qualified or definite failure of issue, and means, by implication, a dying without issue, in the lifetime of John Eden and Hannah Johnson, or issue living at the death of the surviving son. Let any man of common sense read these words, and say if he can discover any such meaning. To me it is most manifest, that it was the settled intention of the testator, to give the estate to the heirs of John Eden and Hannah Johnson, in case they should die before his sons, (an event to be expected, according to the natural course of life,) whenever the issue of the sons should become extinct. In Doe v. Fonnereau,(v) Ld. Mansfield asked Serjeant Hill, whether he had been able to find any case of real property, where the Court, on the words in default of such issue, had implied a restriction to issue living at the death of the father, and the learned Serjeant acknowledged, that he had not been able to find any such case. It would, therefore, be as repugnant to law and precedent as to reason and common sense, to infer such a restriction.
[397]*397The le that words dying per se, mean mdefi”ite ure, &e. farther consider-
[398]*398Whether word survivor can he implied in last devise.
But the learned counsel for the plaintiffs in Error, aware of the fallacy of such a position, say, that as the testator in the first limitation used the words survivor, and the second limitation being in the same sentence, and respecting the same subject, we have a right, and it becomes the duty of this Court, to supply the word survivor in this branch of the sentence. In reply to this suggestion, it may be justly remarked, that the subject of the devise is different; the one being of part, only, of the land, and the other of the whole. The different devises, also, relate to persons standing in dif [399]*399ferent relations to the testator, the first being to his own children, the second to collateral relations. It is, therefore, to be expected, that he would use different words, and have different intentions. He has used different words, and most obviously had different intentions. Yet it is earnestly pressed upon us to insert this word survivor in the last devise, where the testator has not seen fit to use i, and where we are bound to infer that he did not intend to use it.
If we were disposed to supply this word survivor, it lias not been shown in what manner this is to be accomplished ; nor where the word ought to be placed. I have attempted it in vain ; it is not possible to insert this word alone, so as to make common sense of the paragraph. I invite the members of this Court to make the experiment, and I think they will be satisfied of its impracticability.
The counsel for the plaintiffs in Error, sensible of this difficulty, insist that if we cannot insert this single word so as to produce the effect desired, we must supply other words which will. Thus, after the words, lawful issue, in the last devise, insert, ‘ living at their death,’ or 1 at the time of the death of the survivor of them ;’ and after the words, John Eden and Hannah Johnson, insert, ‘ in case they should survive my said sons.’. All this, or something equivalent, must be supplied, or the con struction, here contended for cannot be sustained. This, I presume, the Court will not dofor it is not the province of this or any other Court to make a will for the testator, but to settle the legal construction of that which he has made.
I have examined this case with all the assiduity and attention justly due to the magnitude of the controversy, and the importance of the principles it involves; and unless I totally misunderstand the import of this bill, and misconceive the law applicable to it, the judgment of the Supreme Court (though the learned Judge, who delivered the opinion of that Court, took a different ground in relation to one of the points) maintains the legitimate construction of the testator’s will, without addition or diminution; is congenial with our policy and laws ; is supported by an uninterrupted series of the ablest adjudications, and should, therefore, be affirmed.
[400]*400The rest of the Court concurring in the result of these opinions, (King, Senator, dissenting,) it was thereupon ordered, adjudged and decreed, that the judgment of the* Supreme Court be affirmed ; and that the record be remitted, &c.
Note.—No division of the Court was had upon the different grounds taken, by the Chancellor and by Cramer Senator, against the ulterior devise going over, but the Court voted generally to affirm the judgment.
Fosdick v. Cornell, 1 John. Rep. 440. Jackson v. Blanshan, 3 id. 292. Moffatt v. Strong, 10 id. 12. Jackson v. Staats, 11 id. 337. Anderson v. Jackson, 16 id 382.