Die without

issue, &c.,

when restricted to a failure of issue at the death.

1 The authorities in this country are at variance upon the construction of words of this kind. In the following cases it has been declared that prima facie they must be taken to refer to an indefinite failure of issue: Allen v. Ashley School Fund, 102 Mass. 262, 264; Hall v. Priest, 6 Gray, 18; Albee v. Carpenter, 12 Cush. 382 (personalty): Burrough v. Foster, 6 R I. 534; Arnold v. Brown, 7 R. I. 188; Ladd v. Harvey, 21 N. H. 514, 526; Hall v. Chaffee, 14 N. H. 215; Davies v. Steele, 38 N. J. Eq. 168 (in the absence of statute); Hackney v. Tracy, 127 Penn. St. 53; Lawrence . Lawrence, 105 Penn. St. 335; Reinoehl v. Shirk, 119 Penn. St. 108; Gast v. Baer, 62 Penn. St. 35; Ingersoll's Appeal, 86 Penn. St. 240; Smith's Appeal, 23 Penn. St. 9; Vaughan v. Dickes, 20 Penn. St. 509; Eichelberger v. Barnitz, 9 Watts, 447; Gable v. Ellender, 53 Md. 311; Tongue v. Nutwell, 13 Md. 415; Edelen v. Middleton, 9 Gill, 161 (personalty); Bells v. Gillespie, 5 Rand. 273; Addison v. Addison, 9 Rich. Eq. 58; Randolph v. Wendel, 4 Sneed, 646; Kirk v. Furgerson, 6 Cold. 479; Mangum v. Pie-ter, 16 S. C. 316; Graham v. Moore, 13 S C. 115; Rice v. Satterwhite, 1 Dev. & B. Eq. 69 ("without an heir"); Huxford v. Milligan, 50 Md. 542.

This in the case of realty will of course give the first taker an estate tail and the second devisee the reminder (Allen v. Ashley School Fund, supra), and in the case of personalty the fund absolutely. Hall v. Priest, supra; Albee v. Carpenter, supra; Theological Sem. v. Kellogg, 16 N. Y. 83, 87; Hennion v. Jacobus, 27 N. J. Eq. A contrary construction, making the

28.

words refer to the death of the testator, and thus saving the gift over as an executory devise, has been held (in some of the cases aided by slight indications of intention) in Hal v. Chaffee, 14 N. H. 215; Bullock v. Seymour, 33 Conn. 289: Hudson v. Wadsworth, 8 Conn. 348, 359; Harris v. Smith, 16 Ga. 545 (approved in Griswold v. Greer, 18 Ga. 545, 550, a case of personalty); Edwards v. Bibb, 43 Ala. 666; s. c. 54 Ala. 475: Parish v. Ferris, 6 Ohio St. 563; Niles v. Gray, 12 Ohio St 320; Armstrong v. Armstrong, 14 B. Mon. 333; Daniel v. Thompson, id. 663. See Harris v. Berry, 7 Bush, 113. Under statutes, Tyson v. Blake, 22 N. Y. 558; Goodell v. Hibbard, 32 Mich. 47, 55, and other cases at the end of this note. The English rule as to realty has been abrogated by statute or rejected by the courts in some of the states. Davies v. Steele, 38 N. J. Eq. 168

It is apprehended that at the present day the construction which refers the words in question prima facie to the death of the first taker will, not only in the case of personalty (as to which see infra), but also of realty, be favored generally in this country and adopted upon slight indications of intention, in so far as the courts find themselves unfettered by binding authority. A particular reference to some of the American cases will show the course of the authorities as to words in common connection with those in question. In an early case it was held that a gift over upon the death of the prior taker without children to the brothers of the prior taker meant children living at the death of that party. Morgan v. Morgan, 5 Day, 517. And this decision has been followed in other cases. Couch v.

Gorham, 1 Conn. 36; Hudson v. Wadsworth, 8 Conn. 348; Bullock v. Seymour, 33 Conn. 289; Barney v. Arnold, 15 R. I. 78 (without leaving children "). So, too, it is declared to be settled law that when a fee simple or an absolute interest is given in remainder after an estate for life to the children of the first taker, followed by a gift over upon default of his (the first taker's) issue, the word "issue" is held to refer to the children mentioned. The gift over is therefore a good executory devise. Daley v. Koons, 90 Penn. St. 246; Sheets's Estate, 52 Penn. St. 257, 268; Powell v. Board of Missions, 49 Penn. St. 46, 56; ante, p. 1298. In another case the court decided that a provision that if any of the children of the first taker should die without issue alive, his share should go to the survivors, was a good executory devise. Den v. Schenck, 3 Halst. 29.

And it has elsewhere been decided generally that a gift over to the survivor of one of several devisees, the deceased dying without lawful issue, is also a good executory devise. This, it is held, does not create an estate tail in the first takers. Anderson v. Jackson, 16 Johns. 382; Jackson v. Chew, 12 Wheat. 153; Wilkes v. Lyon, 2 Cowen, 333; Cutter v. Doughty, 23 Wend. 513; s. c. 7 Hill, 305; Lovett v. Buloid, 3 Barb. Ch. 137; Waldron v. Gianini, 6 Hill, 601, 603; Norris v. Beyea, 13 N. Y. 273, 280; Miller v. Emans, 19 N. Y. 384; Gilman v. Reddington, 24 N. Y. 9; Quackenboss v. Kingsland, 102 N. Y. 128; Van Horne v. Campbell, 100 N. Y. 287; s. c. 101 N. Y. 608. See Allen v. Ashley School Fund, 102 Mass. 262, 264. But the contrary has also been held. Bells r. Gillespie, 5 Rand. 273; Heffner v. Knepper, 6 Watts, 18; Wall v. Maguire, 24 Penn. St. 248; Caskey v. Brewer, 17 Serg. & R. 441; Rapp v. Rapp, 6 Barr, 45. See Johnson v. Currin, 10 Barr, 498, where the executory devise was saved by additional words.

If an estate tail were deemed to have been created in the first taker, the survivor under the gift over (after death of the other with out issue) could of course take only upon the failure of the other's posterity; a result which instead of creating an executory devise would create a remainder. Anderson v. Jackson, supra; Cutter v. Doughty, supra; Parker v. Parker, 5 Met. 134; Nightingale v. Burrill, 15 Pick. 104; Weld v. Williams, 13 Met. 486; Hall v. Priest, 6 Gray, 18. The entire decision against the creation of an estate tail in such a case has turned upon the presence of the word "survivor" (Anderson v. Jackson, supra); a word which Mr. Chancellor Kent thinks ought not alone to affect the meaning of the words "dying without issue." 4 Kent, 279, note (e).

But it is settled in New York and in many other states that that word is to be understood as qualifying the technical meaning of the words "dying without issue," so as to

require them to be read "dying without issue living at the time of the prior taker's death." Cutter v. Doughty, 23 Wend. 513; Allen v. Ashley School Fund, 102 Mass. 262, 264; Brightman v. Brightman, 100 Mass. 238; Abbott v. Essex Co. 18 How. 202; s. c. 2 Curt. 126; Williams v. Graves, 17 Ala. 62; Powell v. Glenn, 21 Ala. 458; Williams v. Pearson, 38 Ala. 299; Edwards v. Bibb, 43 Ala. 666; s. c. 54 Ala. 475; Duryea v. Duryea, 85 Ill. 41; Groves v. Cox, 40 N. J. 40; Southerland v. Cox, 3 Dev. 394; McCorkle v. Black, 7 Rich. Eq. 407; Russ v. Russ, 9 Fla. 105; Deboe v. Lowen, 8 B. Mon. 616; Hart v. Thompson, 3 B. Mon. 486; Bedford's Appeal, 40 Penn. St. 18, 23 (personalty). So where the gift over is upon failure of issue of the first taker or upon his failing to attain a certain age, the old construction is escaped and the executory devise saved; the word "or" being evidently meant for "and." Adams v. Chaplin, 1 Hill, Ch. 265, 267; Doebler's Appeal, 64 Penn. St. 9; Parker v. Parker, 5 Met. 134; Den v. Taylor, 2 South. 413; Paterson v. Ellis, 11 Wend. 259; Norris v. Beyea, 13 N. Y. 273; Berg v. Anderson, 72 Penn. St. 87; Neal v. Cosden, 34 Md. 421; Carpenter v. Boulden, 48 Md. 122; Massie v. Jordan, 1 Lea (Tenn.), 646. But it is laid down in Pennsylvania that a devise over upon the devisee's dying unmar ried and without issue indicates nothing definite in the period when the failure of issue is to take place, and that therefore nothing but a contingent remainder dependent upon an estate tail is created. Mattack v. Roberts, 54 Penn. St. 148; Vaughan v. Dickes, 20 Penn. St. 509; overruling an exception mentioned in Eichelberger v. Barnitz, 9 Watts, 447, 450. But see post, p. 1328; Downing v. Wherrin, 19 N. H. 9; Jones v. Sothoron, 10 Gill & J. 187.

In those states in which the English construction prevails, or at least in some of them, it is also held that the construction is not escaped by the use of the words "without leaving issue" or "without leaving heirs of the body," when not applied to personalty. Allen v. Ashley School Fund, 102 Mass. 262, 264; Paterson v. Ellis, 11 Wend 259; Vaughan v. Dickes, 20 Penn. St. 148; Eichelberger v. Barnitz, 9 Watts, 450; Moody v. Walker, 3 Pike, 147, 198; Newton v. Griffith, 1 Harr. & G. 111; Torrance v. Torrance, 4 Md. 11; Tongue v. Nutwell, 13 Md. 415, 425; Biscoe v. Biscoe, 6 Gill & J. 232, 236; Edelen v. Middleton, 9 Gill, 161; Ingersoll's Appeal, 86 Penn. St. 240. Contra, Kennedy v. Kennedy, 5 Dutch. 185; Harris v. Smith, 16 Ga. 545, approved in Griswold v. Greer, 18 Ga. 545, 550. Very little, however, in addition to the word "feaving" will change the construction. Taylor v. Taylor, 63 Penn. St. 481; Edwards v. Bibb, 54 Ala. 575. See also Faber v. Police, 10 S. Car. 376. Thus, by the words "without leaving issue behind," the construction is changed and a good executory

General rule under the old law.

devise created. Eichelberger v. Barnitz, 9 Watts, 447, 450. It is declared that the rule should be applied in cases of realty where the first devise is to two persons, and the devise over in case of the death of either leaving no issue is not to the survivor but to a stranger. Allen v. Ashley School Fund, supra; Irvin v. Dunwoody, 17 Serg. & R. 61.

The rule in England as to gifts of personalty, which makes the word "leaving" refer prima facie to the death of the prior taker, has been uniformly followed in this country. Downing v. Wherrin, 19 N. H. 89; Ladd v. Harvey, 21 N. H. 514, 527; Hall v. Priest, 6 Gray, 18, 22; Albee v. Carpenter, 12 Cush. 382, 388; Snyder's Appeal, 95 Penn. St. 175; Eachus's Appeal, 91 Penn St. 105; Bedford's Appeal, 40 Penn. St. 18, 22; King v. Diehl, 6 Serg. & R. 32; Eichelberger v. Barnitz, 17 Serg. & R. 295, Biscoe v. Biscoe, 6 Gill & J. 232 236, Tongue v. Newell, 13 Md. 415, 425; Edelen v. Middleton, 9 Gill, 161; Mazyck v. Vanderhorst, Bail. Eq. 48; Bethea v. Smith, 40 Ala. 415; 4 Kent, Com. 281-283. See Theological Sem. v. Kellogg, 16 N. Y. 83, 87; Newnan v. Miller, 7 Jones, 516.

And it should not be forgotten that the English rule as to realty was adopted at a time before the prejudices in favor of (what is now purely artificial) the ancient system of estates in land, which allowed only of interests in possession, reversion, or remainder, had died out. Executory devises, which had not been possible under the feudal tenures before the time of Henry the Eighth, were even after the Statute of Wills looked upon with disfavor; and though the courts did not assume to hold them void per se, they laid down the rule that remainders were to be preferred to them. This rule prevails generally in the United States (Hall v. Priest, 6 Gray, 18, 20; Wall v. Maguire, 24 Penn. St. 248, ante, Vol. I., p. 824, n.), though it never had the special raison d'être here which it had where it originated. It has been somewhat affected by statute in England. Ante, Vol. I., p. 832. Indeed, it is greatly to be regretted that the construction of the word "issue" itself, without qualification, should not have escaped the influences under which the English judges

But

first declared the construction to be followed. Nothing could be more improbable than that a testator in providing for a gift over to B. on the death of A. "without issue," without more particular words, should have contemplated all the line of A.'s possible posterity as standing before B.'s accession to the bounty; not, indeed, that it might not be perfectly natural in many cases for the testator to prefer A. and his posterity to B., but that, if he really did so intend, he would have been apt to say so in language which would not require straining to give it the desired meaning. It is apprehended that the meaning of the word "issue" in the mouth of the uninstructed testator is strained when it is made equivalent to posterity. If the testator were to be questioned, it would doubtless generally be found that, so far as he had any definite idea at all, he had used the word in the sense of "children," living of course at the death of the first taker. See Den v. Taylor, 2 South. 413, 418. And comp. 2 Redf. Wills, 46 (4th ed ). But see 4 Kent, Com. 274, 275.

In case of a devise over to children of the testator, children living at his death are prima facie meant. Stone v. Nicholson, 27 Gratt. 1. The strong bias, it may be remarked, of Mr. Chancellor Kent in favor of the old (English) construction has not been very widely shared. It will be seen further on that the ancient rule, that "dying without issue" is to be interpreted, with some exceptions, as referring to an indefinite failure of issue was abolished in England by statute in 1837 So, too, in New York in still stronger terms. 4 Kent, Com 280: Norris v. Beyea, 13 N. Y. 273, 280. So in other states. See Stone v. McEckron, 57 Conn. 194 (citing Phelps v. Robbins, 40 Conn. 250; White v. White, 52 Conn. 518; Coe v. James, 54 Conn. 511, Phelps v. Phelps, 55 Conn. 359); Goddell v. Hibbard, 32 Mich. 47, 55; Mason v. Johnson, 47 Md. 347. And how ready the courts are to give heed to any, the slightest, indication of an intention to refer the words "dying without issue," to the time of the death of the testator, even where they still retain prima facie the old effect, the cases already cited abundantly show.