#### *Kendall v. Eyre.

February, 1823.

Wills — Construction— Estate Tall— Conversion.* — A testator by bis will, dated in 1794, devises a tract of land to bis son C, "and bis lawful issue living:, as shall be more fully described in a further clause of this will.” He then devises other parcels of land to his other children, and always adds, to their lawful issue living'. Iñ a subsequent clause, he says, "therefore each of the dividends and lot as aforesaid, shall and may be held and possessed by each of my children respectively, or their lawful issues living1, (as being now more particularly expressed,) but in case either of my said sons or daughters, shall sell the whole or any part thereof or grant a lease for a certain number of years, or give mortgage on the whole or any part thereof, in such case that dividend or lot shall be forfeited, and be equally divided amongst all the other of my children, if they should be living, or die without leaving such issue, at the time of their death, in either case, let the survivor or survivors, inherit such part: Provided, they hold the same conditionally, not to sell, lease for a certain term, or mortgage as aforesaid; and when all my children and their issue may become extinct, then to my wife N, and her heirs for ever.” *Selcl,*that O, took an estate tail, which was converted into a fee simple by the law.

This was an action of ejectment brought in the superior court of Northampton, by William Kendall, and Sarah C. B. Rogers, for one messuage, one garden, one orchard, and three hundred acres of wood land. The declaration was served on Oldham and Cobb, tenants in possession; and, after-wards, William Littleton Eyre, an infant, by John Eyre, (who was appointed his guardian, ad litem.) was admitted defendant to this suit.

At the trial, the jury found a special verdict, setting forth, in substance, the following facts:

That William Kendall, the elder, was seised in his lifetime, and at the time of his death, of g plantation and tract of land, supposed to contain six hundred and ten acres, situated on Cherrystone creek, in the county of Northampton:

That the said William Kendall, the elder, on the 11th day of September, 1794, duly made and published his last will in writing, _ which contained, among other tilings, the following devises:

*“Imprimis: I order and direct that 300 acres of land fronting on the river, so as including the dwelling house, yard, garden, and the adjacent fruit trees, tc be laid off by lines running eastwardly and westwardly, through the middle and most beautiful part of my said plantation, be allotted to my son Custis Kendall, and his lawful issue living, as shall be more fully described in a further clause of this will. Item: The next 200 acres, lying back ot Custis’s, and to the northward of him, also to be laid off by a line running eastwardly and westwardly, be allotted to my son Thomas Preson Kendall, and to descend to him and to his lawful issue liv-, irig, as shall be more fully expressed' hereafter. Item: 100 acres, running as before described, and lying to the southward of Custis’s, as intended for my son William Kendall, and to his lawful issue living; but, if Mrs. Kendall should, at her death, give her small plantation on Nasswadox, to my son William, then the said 100 acres must be added to Custis’s dividend, which would make him up, in that case, 400 acres, but to be more fully expressed in a future clause. Item: The last ten acres still lying to the southward of the above 100 acres, I mean as a lot, (which I suppose may fall somewhere about Little Neck,) to be equally divided between my two daughters, Ann Upsher Kendall, and Sarah C. B. Kendall, and to their lawful issue living, as I shall more fully explain hereafter,” &c. “Item: As this clause is the winding up of my sentiments respecting my landed property, I hope the most favorable construction will be put upon my words and intention; therefore, each of the dividends and lot as aforesaid, shall and may be held and possessed by each of my children respectively, or their lawful issues living, (as being now more particularly expressed,) but in case either of my said sons or daughters, shall sell the whole or any part thereof, in such case, that dividend or lot shall be forfeited, and be equally divided amongst all the other of my children, if they *should be living, or to their lawful issue in case of such parent’s death, and so on to their lawful issue so long as there is a child or grand-child to represent me: or where any of my children may die without lawful issue living, or die without leaving such issue at the time of their death, in either case, let the survivor or survivors inherit such part: provided, they hold the same conditionally, not to sell, lease for a certain term, or mortgage as aforesaid: and where all my children, and their issue, may become extinct, then to my wife, Nancy Kendall, and her heirs for ever:”

*109That the testator died in 1795, and his will was duly proved and recorded:

*That on*the 8th day of August, 1797, Custis Kendall, together with Nancy Kendall, the widow of William Kendall, the elder, executed a deed conveying the aforesaid three hundred acres of land, to William Eyre, who immediately entered upon, and became seised of, the said 300 acres of land, until his death on the 23d day of December, 1808:

That the said William Eyre, by his will, devised the said 300 acres to his son William Littleton Eyre, who entered upon, and became seised of, the said lands, by his guardian, and continues seised thereof; which land is the same that was devised in the will of William Kendall, senr. to his son Custis Kendall:

That the said William Kendall, the elder, left no children living at his death, except those named in his will aforesaid, viz: Ann Upsher Kendall, Thomas Preson Kendall, Custis Kendall, William Kendall and Ann C. B. Rogers:

That Ann Upsher died in 1796, an infant, intestate, and without issue; Thomas Fresón died in 1807, without issue, he never having been married; and Custis Kendall died without issue, in January, 1809, he never having been married.

*That William Kendall and Sarah C. B. Rogers, the lessors of the plaintiff, are the only surviving children of the aforesaid William Kendall, the elder:

That Nancy Kendall, the widow of William Kendall, the elder, died in 1805, she being then the wife of a certain John Boisnard:

That Custis Kendall, was the eldest son of William Kendall, the elder:

That at the death of William Kendall, the elder, all his aforesaid children were residing in his family, and were all under the age of twenty-one years, except Custis:

That after the death of William Kendall, the elder, no partition was made of his said lands, until July, 3797, when a partition was *made*at the request of said Custis Kendall, by the surveyor of the county of Northampton, by which the lands in the declaration mentioned, were allotted to the said Custis Kendall, who by virtue thereof entered, and was seised of the same, until the execution of the aforesaid deed to William Eyre, by the said Custis Kendall, and his mother Nancy Kendall.

Upon these facts, the jury submit the questions of law to the court.

The superior court gave judgment for the defendant, and the plaintiffs appealed to this court.

William Hay, Junr. for the appellant.

It is apparent from the face of the will, that the testator intended his children should take life estates only, with contingent remainders in fee to their issue living at the time of their deaths, and in the event that any of them should die without such issue, with cross remainders amongst the survivors. That is a good limitation by way of contingency with a double aspect.

The first difficulty to be encountered in supporting this construction is, that life estates are not expressly given. But this circumstance is immaterial, if it is maiifest that the issue were intended to take as pur- , chasers.

*As estates expressly given for life, shall be enlarged to estates of inheritance, when it is necessary to effectuate a general intention in favor of the issue, which would otherwise be defeated; so estates in the first instance indefinitely; limited, or limited in terms importing estates of inheritance, shall be reduced to life estates, when it is manifest from the subsequent words, that the testator intended the issue to take as purchasers. In Low v. Davis,(a) and Doe v. Lamming,(b) estates tail were expressly given in the first instance; but the subsequent words plainly shewing that the. issue were intended to take as purchasers, they were held to be only life estates. Nothing can be more manifest than that the testator, in this case, intended his son Custis, and his other children, to take life estates only, in the land allotted to them.

1. There is a restriction upon the power of alienation, applying in terms to his children only, and not to their issue, indicating that the children were to take limited estates, but that estates of inheritance were to commence in their issue.

It may perhaps be said, although it is inconsistent with a fee simple estate in the children, it is perfectly consistent with an estate tail. But this is not a just inference; for in .that case, it should have extended to the issue, which it does not.

2. The issue were plainly intended to take in remainder, and not through the parent. The limitation is to Custis or his lawful issue living. For, although in the first part of the will, it is to Custis and his lawful issue living, ypt the testator has, in that clause, referred to a subsequent one, as more fully explaining his intention, in which the limitation is as stated above.

The word or is’used disjunctively, making not one, but successive limitations of the same estate, and plainly shewing that the issue were intended to take after, and not through, the parent. And if so, the reasoning in *Wilde’s case,(c) applies with force. In this respect, this case differs from the University of Oxford v. Clayton, (d) in which Lord Northington determined, that by a devise tc A, and the issue of his body living at the time of his death, and for want of such issue to B, A took an estate tail, because k appeared from the will, that the issue were intended to take by descent, and not in remainder. In addition to which it may be remarked, that words of limitation were wanting, which are not necessary here, and that the decision has met with the disapprobation of the profession, (e)

3. The limitation in this case is not to issue indefinitely, but to issue living at the time of the death, which qualification shews, that the testator used the term *110issue as a special designatio personae. That issue living at the death, is what the testator meant by the term issue living, is manifest, because he has so expressed it in the principal clause; and although there is much perplexity in the clause, it is impossible to give any other sensible construction to his words. If he did not mean issue living at the death, and did not mean to take in the issue indefinitely, (which is manifest,) then, living when? or how long? No answer can be given but the first; living at the death.

4. The limitation over is amongst the survivors of his children; which circumstance is conclusive, that he did not intend an indefinite failure of issue.

If the foregoing views be correct, the limitation to Custis, however it may have been expressed, is equivalent to an estate to him for life; remainder to his issue living at the time of his death; if none, such remainder to the survivors of the children of the testator. If so, the case of Warner v. Mason, (f) is an express authority. It is, in fact, less strong than this case. There was some ground for contending in that case, that the limitation, by way of ’^contingent remainder, was too remote, and that the life estate must fall before the remainder could vest. Not so here; for the limitation over in this case, being upon a failure of issue living at the death, must take effect eo instanti that the life estate determines.

There are two other clauses in this will, which it may be necessary to notice. The first is, that in which, when providing for a forfeiture by alienation, he directs the forfeited parts to be divided amongst his surviving children, if they should be living, or to their lawful issue, in case of such parent’s death, and so on to _ their lawful issue, so long as there is a child or grand-child to represent him.

It may be said, that this clause affords an evidence of his intention to prevent the estate from being alienable, so long as there was a child or grand-child to represent him, and if so, to give an estate tail.

But this is not- the just construction. He intended merely to provide, that in the event of a forfeiture by any of his children, to whom alone the restriction is extended; that the issue of a deceased child should, in the division of that part, represent the parent; not that a grand-child should not liave the power of alienation as to that part of his estate, which had devolved upon him, after the death of his parent.

The other clause, is, that in which he limits the estate to his wife, where all his children and their issue may become extinct; and it is the only one which affords any evidence of his intention to give an estate tail to his children, and cannot be permitted to outweigh the indications of a contrary intention, afforded by every ether part of the will. The court will rather construe it to mean, a limitation to the wife, upon the failure of such issue, as is intended by the preceding clause, the precedents for which construction are numerous.

Besides, cross-remainders had before been expressly limited amongst his children, and the court, in such case, will never imply them, which it must do, if this clause is *held to enlarge the estates of the children to estates tail.(g)

Wickham, R. Taylor, and Upsher, for the appellee.

A preliminary objection was made by the appellee’s counsel, that the plaintiffs in ejectment had misconceived their action, as they had not a right of entry. The necessity of such a. right is an undisputed principle; and, if questioned, can easily be established by a multitude of authorities. The right of entry was tolled in this case, by the death of William Eyre, and the transmission of ■ the estate by devise, to Littleton Eyre, the present defendant. It may be objected that the right of the appellants did not accrue until the death of Custis Kendall. To this it may be answered, that if Custis Kendall would have been barred, the appellants, who are remainder-men, must be equally barred. The appellants are reduced to this dilemma. If the estate of Custis Kendall was a fee-tail, (as we say,) the right of the appellants is barred, both by the descent cast, and by the statute converting it into a fee-simple. If, as the appellants contend, the estate of Custis was a life estate, then the condition against alienation was good, the estate became forfeited by the conveyance in 1797, the right of action vested in them at that time, and the right of entry is tolled, as well by the length of time, as by the descent cast. So that, quacunque via, the appellants could no't maintain an ejectment.

Upon thé merits. It is evident, frorn a minute scrutiny of every part of this will, that the testator intended to create an estate, which the law would not permit. He designed to annex conditions, which should attend the estate indefinitely, and for this purpose has used words, which, according to long established principles, can only create an estate tail.

*That Custis Kendall took an estate tail, results from the devise to him and his lawful issue living. If the word living be omitted, there could be no doubt on the subject. What effect then has the addition of that word? Living has relation to a particular state or condition, and not to any particular time. It is merely the antithesis to dead. But suppose it relates to a particular time. To what time? The date of the will? Surely not; for Custis Kendall had never been married/ Did it relate to the death of Custis Kendall? This construction is disproved by the subsequent clause, which, the testator himself says, is explanatory of all the rest, "or where any of my children die without lawful issue living, or die without leaving such issue at the time of their death, in either case,” &c. In this clause, he provides both for the event of his children dying without issue living at the time of their death, and for the event of their dying without issue, indefinitely. Did it refer to the death of the testator? The *111clause last quoted is equally fatal to this supposition, as one member of it speaks explicitly of his children dying without leaving issue, at the time of their death. If they are purchasers, (as the appellant contends,) and the devise applies to the death of the testator, Custis and his children would take as tenants in common; which would be as little conformable to the wishes of the appellant, as to the evident intention of the testator.

The only remaining supposition is, that the testator intended an indefinite failure of issue.

Again. The devise to his wife, a'fter all his children and their issue may become extinct, affords another proof that the testator meant an indefinite failure of issue. For, if his children should die, leaving issue, and that issue should die, living the wife, it can hardlv be supposed that he intended to deprive his wife of the enjoyment of the estate. In such an event, the testator would have produced a partial intestacy, which he certainly did not intend.

*The restriction on " alienation is a further proof that the testator intended to give an estate which would be alienable, without that restriction. Otherwise, the restriction was wholly nugatory.

An executory devise cannot be attached to an estate-tail, (h) The case of Porter v. Bradly,(i) does not militate against this doctrine, as that was in fact a fee-simple converted into a fee-tail by implication, and the court merely decide that the implication should not be raised, because it would defeat the remainder; and considering the limitation over as a contingent re-, mainder, it cannot take effect under the authority of Carter v. Tyler.(j) In Warner v. Mason, (k) there was an express life-estate, and other circumstances going to shew the intention of the testator to restrain the limitation over within the proper limits. On the other hand, the case of Sydnor v. Sydnors,(l) is a strong authority in our favour. Custis Kendall, therefore, took an estate-tail, which was converted by the statute into a fee-simple.

Leigh, in reply.

t. As to the objection to the remedy by ejectment. I admit that a right of entry is essential to an ejectment, and that the action cannot be maintained, if that right is taken away by any means whatever. It is said that this effect was produced, by the conveyance of Custis Kendall to William Lyre, in the year 1797. But the act of assembly(m) is decisive on this subject; which declares that no conveyance shall operate to pass more than the estate of the grantor. Eyre, therefore, only took an estate for the life of the grantor C. Kendall.

Such being the nature and quantity of estate held by Eyre, did he die so seised, and was such descent cast as tolled the entry of the remainder-man?

*We have the authority of Coke Littleton, (n) for saying, that no descent tolls an entry, unless the ancestor dies seised of a fee-simple, or fee-tail and freehold.

But in truth, there was no descent in this case. The appellee was in by devise, which was the act of the party. The reason why a descent tolls an entry is, that the heir is in by act- of law.(o) Eyre, therefore, was neither the disseizor of the tenant for life, or of the remainder-man. Not of the tenant for life; for he was in by his conveyance. Not of the remainder-man; because, by force of the act of assembly, he took no estate which interfered with his rights. Nor was Littleton Eyre a disseizor. He only took what his testator had to give, viz; the estate pur autre vie. But that neither made him a disseizor, intruder, or deforceor; but only a tenant at sufferance, (p)

At the time of the supposed descent cast, the right of entry had not accrued; for William Eyre died in 1808, and Custis Kendall, in 1809. The right of entry, therefore, could not be tolled. An executory devise is not affected even by fine and recovery.'

3. As to the merits. The limitation under which the appellants claim, is either in its nature an executory devise, limited on a previous fee, given to Custis Kendall; or a contingent remainder to the appellants, limited on a life-estate devised to C. Kendall.

The frequent reference in the will to the explanatory clause, imperiously directs us to look there for the testator’s true intent and meaning. The words “as now more particularly expressed,” do not refer exclusively to the restriction on alienation, but to the previous limitations. The expression “shall^ be held and possessed by each of my children respectively, or their lawful issue living, &c.” is applicable to all the preceding limitations, *and is a provision for the event of any of the devisees dying in the testator’s life, leaving issue, to prevent the estate from lapsing. The effect of this construction will be, not to make the issue take by succession from their parents, nor a;, purchasers of the remainder after them; but by substitution in place of them. The limitation to the children or their issue living, gives _ a fee-simple to the children, if they survive the testator; and if they die before him, leaving issue, it gives the same estate to the issue living.

If C. Kendall took a fee-simple, the limitation over is clearly good as an executory devise, This construction obviates the argument drawn from the prohibition of alienation, and is perfectly reconcilable with the argument that the prohibition is confined only to the children. If the issue took, they were to have a fee; if the remainder-men took, it was intended to restrain their alienation also.

If this construction is wrong, that of Mr. Hay is right.

*112Upon these constructions, the testator will die testate as to all his estate. Every event will be as well provided for, as if C. Kendall took an estate tail. It will be good as a contingent remainder limited on C. Kendall’s life estate; or it will be equally good .as an executory devise, if the remainder is so limited, that in the nature of things it could not vest, at the termination of the particular estate.

*

See monographic *note*on "Wills” appended to Hughes v. Hughes, 2 Mullf. 209.

The principal case is cited in Bells v. Gillespie, 5 Rand. 284.

(a)

*2*33d. Raymond, 1561.

(b)

 2 Burr, 1100.

(c)

 Co. Rep. 17.

(d)

 Ambler 385; 1 Eden, 473.

(e)

 2 Powell’s Pearne, 198.

(f)

5 Munf. 242.

(g)

 4 Bac. Abr. 291, Clatches’s case.

(h)

 2Fonb. 100; 2 Fearne, 52.

(i)

 3 Term Rep. 143.

(j)

1 Gall. 165.

(k)

5 Munf. 242.

(l)

2 Munf. 263.

(m)

 1 Rev. Code, (of 1819) c. 99, § 20.

(n)

 § 387, 388.

(o)

 Litt. § 388.

(p)

 3 Black. Com. 173; 2 do. 150; Fitzh. N. B. 201; Finch, 263; Co. Litt. 57, b. n. 2.

JUDGE BROOKE,

February 6. — delivered the opinion of the court.*

The court is of opinion, that Custis Kendall, under whom the appellee claims, took an estate tail in the land in question, under the will of William Kendall the elder, which was converted into a fee by the law, and therefore, affirm tlie judgment.

*

Judge Gbeen did not sit in this case; the canse having been argued before his .appointment. — Note in Original Edition.