this was a "very strong decision," (an expression which, in the mouth of this venerable Judge, always means a wrong decision ;) and it seems, indeed, to be very difficult to reconcile it with [412] the principles of the line of cases just stated. It was manifest, from the recital of the settlement, that the testator had in view reversionary estate expectant on the limitations of the settlement, whatever that reversion was; and the terms used were merely an erroneous and mistaken reference to the events on which such reversion would fall into possession. The case seems irreconcilable with Jones v. Morgan, which it closely resembles. It is not likely that the decision will be followed. And this conclusion is fortified by the case of Egerton v. Jones, (a) where, in pursuance of marriage articles, an estate at C had been conveyed to the use of A for life, with remainder to B, his wife, for life, with remainder (subject to a term of 500 years for raising portions for younger children) to the use of the first and other sons of A and B successively in tail male, with remainder to the use of trustees for 600 years upon certain trusts in the event of there being no male issue of A and B, who should live to attain the age of twenty-one years, with remainder to the use of A, his heirs and assigns,-A, by his will, devised as follows: "And as to the reversion and inheritance of the freehold estate by me already purchased at C. aforesaid, and such other estate or estates as I shall hereafter purchase in pursuance of my marriage articles, in case of failure of issue of my body by my said wife, I give," &c. Sir L. Shadwell, V. C., expressed a strong opinion that this devise operated as a valid immediate gift of the reversion; but it was not necessary for him to go further than to declare that the title depending on the opposite construction was too doubtful to be forced on a purchaser. [413] If the Vice-Chancellor had been called upon to adjudicate on this point of construction, it is conceived his decision must have been in accordance with his expressed opinion. The case of Jones v. Morgan would have more than warranted, and even Bankes v. Holme would not have opposed, such a conclusion; for the Court had not here (as in those cases) to supply words in order to restrict the issue spoken of in the will to the issue of a particular marriage, (who were the tenants in tail under the settlement,) the testator having in the will distinctly referred to the issue of that marriage. The sound rule would seem to be, that, wherever it may be collected from the general context of the will, that it is the testator's intention to dispose of his reversionary interest expectant on the subsisting estates tail, such intended disposi (a) 3 Sim. 409. tion will not be defeated by the neglect of the testator to adapt his language with precision to the events on which the reversion will fall into possession. The consequence of rejecting this construction commonly has been (we have seen) to invalidate the intended devise of the reversion for remoteness (as depending upon a general failure of issue); but in this respect the recent act has made an alteration, which is pointed out in the next section. IV. It remains only to consider how far the doctrines discussed in the present chapter are applicable to wills, which are regulated by the new law. [414] The statute of 1 Vict. c. 26, § 29, provides, "that in any devise or bequest of real or personal estate, the words, 'die without issue,' or die without leaving issue,' or 'have no issue,' or any other words which may import either a want or failure of issue of any person in his lifetime or at the time of his death, or an indefinite failure of his issue, shall be construed to mean a want of failure of issue in the lifetime or at the time of the death of such person, and not an indefinite failure of his issue, unless a contrary intention shall appear by the will, by reason of such person having a prior estate tail, or of a preceding gift, being, without any implication arising from such words, a limitation of an estate tail to such person or issue, or otherwise; provided that this act shall not extend to cases where such words as aforesaid import if no issue described in a preceding gift shall be born, or if there shall. be no issue who shall live to attain the age or otherwise answer the description required for obtaining a vested estate by a preceding gift to such issue." It is evident, therefore, that the question, whether words importing a failure of issue refer to the objects of the preceding devise (which form the main topic of the present chapter) may still arise under wills that are within the recent enactment; and if this question be decided in the affirmative, the construction will not be in the least affected by the change in the law; but if it be adjudged that the words under discussion do not refer to the objects of the prior devise, the result now will be widely different; for, instead of being construed (as formerly) to import an indefinite failure of issue, they must (unless the context forbids) be held to point exclusively to issue living at the death, and, consequently, can never, under any circumstances, by their own intrinsic force, have the effect of creating an estate tail by implication; so that to wills made, or republished since the year 1837, no scope will be afforded for the application of the doctrine of the cases of Doe v. Halley, Parr v. Swindels, and Doe v. Gallini, to the discussion of which so large a space has been devoted. The effect of holding the words in question not to refer to the issue, who are the objects of a preceding devise, will be [415] to render the estate of the children, conferred by such devise, determinable on the event of the parent dying without leaving issue living at his death, as in the case of Hutchinson v. Stephens, (a) which is a result that ill accords with probable intention. Such a case, however, can only occur where the devise to the children, or any other class of issue, gives estates in fee, as it would under wills which are subject to the new law, even without words of limitation; for if the devise in question confers estates for life only, the determination of such estates is involved in the failure of the issue whose extinction is the contingency on which the ulterior devise depends. We see, therefore, in the effect of the new law, increased motive for adhering to the principle of the cases of Goodright v. Dunham and Malcolm v. Taylor, which it will be remembered authorize the proposition, that, where a devise to children in fee is followed by a devise over, to take effect on the failure of the issue of the parent of such children, the words importing a failure of issue refer to the children or other issue, who are the objects of the prior devise, which principle would, it is conceived, apply to devises embracing any other class of children, as sons or daughters. For instance, if lands are devised to A for life, with remainder to his sons, and if A should die without issue, then to B, each son of A, under the original devise, would, immediately on his birth, take a vested remainder in fee simple in his own aliquot share; and if the subsequent words were held merely to refer to the objects of the prior devise, the ulterior limitation of course would not disturb or affect such vested remainder; but if the words in question were adjudged not to bear this construction, but to point to issue of every degree living at the death [416] *of A, they would subject the vested estate of the sons of A to an executory devise, to take effect in the event of A dying without leaving issue surviving him, a result which it is conceived the Courts, when applying the new rules of construction, will not hesitate to reject, in deference to the authority of the cases just referred to. The enactment which makes a devise pass the fee simple without words of limitation will, it is obvious, greatly extend the application of the doctrine of Goodright v. Dunham, and Malcolm v. Taylor; and in this respect seems to operate very beneficially, in concurrence with that which reads words importing a failure of issue as denoting issue living at the death, when not simply referential to the issue described in the prior devise. In the preceding remarks, the new enactment has been re (a) 1 Keen, 240; ante, p. 378. garded in its effect only upon the prior estates. With respect to the ulterior estate, i. e. the estate which is to take effect on the failure of issue, its operation is more decidedly beneficial, for it prevents such ulterior devise from being rendered void for remoteness, where the words denoting the failure of issue would have the effect neither of referring to the objects of the prior devises, nor of creating an estate tail by implication. 300 CHAPTER XLII. WORDS "IN DEFAULT OF ISSUE," ETC., WHETHER THEY REFER TO FAILURE INDEFINITELY, OR FAILURE AT THE DEATH.1 I. General Rule. Exceptions. II. Circumstances and Expressions adequate to warrant the restricted Construction in regard to Real Estate. in regard to Personalty. III. IV. Remarks on 1 Vict. c. 26, § 29. IN default of issue, &c. when restricted to a failure of issue at the death. Two exceptions, [p. 418.] First, where phrase is, leaving no issue, [p. 418.] As to supplying the word leaving, [p. 420, note.] Remark on Pye v. Linwood, [p. 420, note.] Second exception to general rule, [p. 421.] Failure of testator's own issue, he having none, [p. 421.] Reference to testator's own issue, [p. 422.] Reference to testator's own issue, [p. 424.] Remarks upon Lytton v. Lytton, [p. 424.] And Sanford v. Irby, [p. 425.] What will restrain the words generally, [p. 426.] Difference where applied to real and personal estate, [p. 427.] When restricted in regard to realty, [p. 428.] Where the dying refers to a given age, [p. 428.] Suggested extent of the principle. [p. 429.] Devise over, on issue dying under age, not restrictive, [p. 429.] Effect of a collateral event being associated, [p. 430.] Remark on Pells v. Brown, [p. 431, note.] Effect of additional expressions, [p. 432.] Express reference to the death of the prior devisee, [p. 432.] "Leaving no issue BEHIND HIM," [p. 432.] Implicatory grounds of restriction from nature of devise over, [p. 433.] Remarks upon Nichols v. Hooper, [p. 434.] Ulterior gifts being for life only, [p. 434.] But all the estates must be for life, [p, 436.] Sir W. Grant's statement of the general rule, [p. 436.] 1 See 4 Kent, (5th ed.) 273, et seq.; Bells v. Gillespie, 5 Rand. 273; Caskey v. Brewer, 17 Serg. & R. 441; Ide v. Ide, 5 Mass. 500; Dallam v. Dallam, 7 Harr. & Johns. 220; Adams v. Chaplin, 1 Hill, Ch. 268; Newton v. Griffith, 1 Harr. & Gill, 111; Sydnor v. Sydnor, 2 Munf. 269; Carter v. Tyler, 1 Call, 143; Hill v. Burrow, 3 Call, 342; Denn v. Wood, Cam. & Nor. 202; Čruger v. Hayward, 2 Desaus. 94; Irwin v. Dunwoody, 17 Serg. & R. 61; Heffner v. Knapper, 6 Watts, 18; Patterson v. Ellis, 11 Wendell, 259: Moody . Walker, 3 Arkansas, 198; Rice v. Satterwhite, 1 Dev. & Bat. Eq. 69; Mazyck v. Vanderhorst, 1 Bailey, Eq. 48. |