#### George A. Addison, and others, *vs.*Emma L. Addison, and others.

Testator devised and bequeathed real and personal estate to trustees, “ for the sole benefit of my son, J. A., *during his natural life.*But if my said son, J. A., should die without leaving any child or children, or representatives of child or children, in that case my will is, that the above property be equally divided between my son, G. A., and my daughter, E. S., or their children, or descendants of child or children.” J. A. had a son born after the death of testator, which son survived J. *A.:*— Held, that J. A. took an estate in fee conditional in the realty, by implication, which descended to his son, and that he took an absolute estate in the personalty, which, he having died intestate, was liable, after payment of debts, to distribution between his widow and child.

BEFORE -WAEDLAW, OH., AT EDGEFIELD, JUNE, 1855.

Every thing necessary to a full understanding of this case is contained in the circuit decree, which is as follows:

"Wardlaw, Ch. Allen B. Addison made his will July 21, 1849, and thereby disposed of his estate according to the following scheme:

1. He directs that his “just debts, if any, be paid out of the moneys arising out of notes and accounts due” to him.

2. He gives to his wife, Patience, during her natural life, ’ the house and lot where he resided and other lands; as much of his household and kitchen furniture as she should wish; a year’s provision for house and farm; and certain slaves and other chattels.

3. He gives to his son George A., in absolute fee, certain real and personal estate.

*594. “ I give injtrust to Dr. Edward J. Mims and George A. Addison, for the sole benefit of my daughter Emeline S. Mims, the wife of Dr. Edward J. Mims, during her natural life, and after her death the child or children or representatives of child or children she may leave, the following property: my plantation on Horn’s Creek, &c., my Bellview tract, &c., my storehouse, &e., and the following negro slaves, &c.”

5. “ I give in trust to George A. Addison and Dr. Edward J. Mims, for the sole benefit of my son Joseph A. Addison during his natural life, the following property, that is, my mill place on Shaw’s Creek, &c.: the Allen lot, &c.; that part of the lot I purchased from C. L. Goodwin, &c.; and the following negro slaves, &c.; and the note I hold on said Jos. A. Addison, &c.; and my secretary and book case. But if my said son Jos. A. Addison should die without leaving any child or children or representatives of child or children, in that case my will is, that the above property be equally divided between my son George A. Addison and my daughter Emeline S. Mims, or their children or descendants of child or children, agreeable to the conditions of the 3d and 4th clauses of this will.”

6 — 14. He gives certain legacies to his grand-children and step-grand-children.

15. “It is my will and desire that after my debts are paid out of the moneys due me that balance and for sale of crop be equally divided between my wife and my three children before named, share and share alike, and after my wife takes what furniture she wants the balance of my [furniture ?] not mentioned be divided equally between my three children before named by lot or sale as they may agree upon.”

16. “It is my will and desire that after the death of my *60wife the property'left Per daring Per natural life be equally divided between my tPree children, agreeable to the conditions of the third, fourth and fifth clauses of this my will — that the negroes, land and lots be appraised and divided by lot, as I do not wish the negroes exposed to sale for division.”

17. "I do hereby appoint my wife Patience Addison my executrix, and George A. Addison and Dr. Edward J. Mims, my executors, to this my last will and testament.”

The testator died May 24, 1850, and soon afterwards George A. Addison and Dr. Edward J. Mims proved the will and took upon themselves the execution thereof and of the trusts therein declared. The wife and three children named in the will survived the testator, and they would have been the distributees of his estate, if he had died intestate.

Joseph A. Addison died intestate November, 1854, leaving a widow Emma L. Addison and a son Allen B., born January 6,1851, entitled to his estate under the statute of distributions: And George A. Addison has become administrator of his goods and credits. '

The subject of controversy is the estate given by the will to Joseph A. Addison; and all the parties in interest are regularly before the Court. The estate itself mentioned in fifth clause, has been’ sold by the order of the Court under the proceedings in this case; and the litigation now is as to the proceeds of sale. Beyond the gift for life to said Jos. A., the testator has made no express disposition of the remnant of this estate, except on a contingency which has not happened of the son’s dying without leaving a child or representative of child. There is no gift to the descendants of this son, as in the case of the daughter; nor is there any general residuary clause, for the 15th and 16th clauses of the will include only the property particularly enumerated.

. If Joseph A. had died “without leaving any child or children or representatives of child or children,” and a litigation *61had arisen between the devisees over and those who might claim that the remainder was not disposed of by will, the validity of the gift over might have been reasonably affirmed. The terms describing the contingency on which the estate was to go over would probably be construed in such a controversy to import dying without issue living at the death of the first taker, and not dying without issue generally. The word *leave*would, of itself, have this restrictive operation on dying without issue as to personalty, and although' not so cogent singly as to realty, *(Forth*vs. *Chapman,*1 P. ¥m. 665; *Mazych*vs. *Vanderhorst,*Bail. Eq. 48,) yet when used in connection with other words naturally meaning descendants of the first generation and other issue representing children by the statute of distributions, *leave*would retain its proper signification and be adequate as to any estate to restrict the failure of issue within the recognized limits of entailment. 2 Jarm. Wills, 113, 114; *Mathis*vs. *Hammond,*6 Rich. Eq. 399. But as Joseph left a child the event upon which the estate was to go over did not occur, and the contingent devisees over take no title. It was the manifest purpose of testator that they should not take so long as descendants representing Joseph were in existence. *Andree*vs. *Ward,*1 Russ. 260.

Ho estate, however, is limited to these descendants or any of them by the testator; and authority seems to forbid the raising of an estate by implication in Allen B., the son of Joseph, as a purchaser. *Carr*vs. *Porter,*1 McO. Oh. 78; *Me-Lure*vs. *Young,*3 Rich, Eq. 578 ; 1 Jarm. Wills, 500; 2 Eonb. 62. The case of *Green*vs. *Ward,*1 Russ. 262, is analogous to the present in several points. There a testator bequeathed certain stock to trustees on trust to pay the interest to his son for life, and if he married a woman with a fortune of one thousand pounds to settle the stock upon her and the issue of the marriage; but in case of the son’s decease, leaving no issue of his body lawfully begotten, the testator gave the stock to other persons, and bequeathed the residue of his estate to *62W. The son married a woman who had not the fortune required by the will, and he died leaving issue of the marriage. Lord Gifford decided that the life estate of the son was not enlarged by implication into a *quasi*estate tail — that the issue of the marriage took nothing — that the gift over failed — and that the residuary legatee was entitled to the stock after the son’s death. On the point immediately under our consideration, the M. R. says: “If a sum of money is bequeathed to A. B. for life, and if he dies leaving no issue, then to another, that does not raise any implication in favor of the issue of A. B.; though if he dies leaving issue, the gift over does not take effect.” It seems to impute a preposterous intention to a testator to hold that he confines the interest of the first taker to a life estate and gives the estate to the devisee over if there be no child of the first taker, and yet if there be a child gives nothing to the child or its parent. To avoid this incongruity, Sir Thomas Plumer, in *Ex parte*Rodgers, 2 Mad. 449 (576) raised a gift to children upon a construction seemingly strained. There a testator, who had by his will bequeathed absolutely one thousand pounds to his niece, by a codicil recited his purpose to withdraw the legacy from the disposal of herself and husband, in consequence of her indiscreet marriage, and directed his executors to secure to her the annual interest of the one thousand pounds, independently of her husband, by placing that sum in the public funds in trust for her, she to enjoy the interest or dividends during her natural life ; and at her decease without child or children, the principal and interest to be equally divided among such of her sisters as should be living at her death. The V. 0. felt justified in saying the children of the niece were entitled to the legacy. It will be observed that the estate of the niece absolute by the will is no further restricted by the codicil than by changing it into a trust, and thus preventing herself or her husband from disposing of the capital, which is left to go to her children, if she had any, as her next of kin. This case *63states some of the doctrines of implication unguardedly; as, that a devise of an estate to B. upon the death of A, gives a life estate to A.; which is not true if A. be a stranger. If my confidence in this case were greater than it is, I could not venture upon its authority to overrule what seems to be the settled doctrine of this State. If the testator here, who died before his son Joseph had a child, had foreseen the state of things existing at the son’s death, it is probable that he would have expressly provided for that state of things. But the Court has no authority to make a will for him, nor to conjecture his intention not expressed, and is limited to the expounding of his will according to the words he has used. Where he designed the issue of his children to take by his gift, as in the case of Mrs. Mims’ children, he has endeavored to express his purpose, and has not left the matter to implication. I am unable to find the grounds upon which an estate must be necessarily implied in favor of the son of Joseph. In my judgment he takes nothing under the will, and can claim only through his father.

If the gift over be after an indefinite failure of issue, the estate of the first taker might have been enlarged by implication into a fee conditional in the lands and into an absolute estate in the personalty, as the only mode by which the issue can possibly take benefit. This construction is made to consummate the testator’s intention, that the legatees over shall not enjoy the estate until the whole line of issue of the first taker be extinct; and that those claiming by intestacy shall take nothing where the will can operate. “ Erom the fact of making a will, in the absence of any declaration therein to the contrary, the intention of the testator is manifested to prefer his legatees who can take in any event to those whom the law appoints to the succession in the absence of a will.” 6 Rich. Eq. 400. In some early cases (as in *Bampfield*vs. *Pojpham,*1 P. Wm. 54,) it was held, that implication was never to be made in contradiction of an express limitation, *64and consequently that an express estate for life could not be enlarged into an estate tail by implication, but this view has been overruled in numerous cases, and now an estate tail is implied in the first taker from words devising the estate over if he die without issue, although the devise to him be expressly for life. *Langley*vs. Baldwin, 1 P. Wms. 759; *Stanley*vs. Leonard, 1 Eden. 87; *Atty, Gen.*vs. *Sutton,*8 Br. P. C. 75; *Bean*vs. Halley, 8 T. R. 5. In *Knight*vs. Bilis, 2 Br. G. 0. 578, (which is recognised on this point in *Carr*vs. *Porter,*1 McC. Oh. 75,) Lord Thurlow puts the case of a devise to A. for life and after the failure of his issue to B., and proceeds: “ What is the Court to do ? It is clear that a life interest only is given to A. It is clear that no benefit is given to B. while there is any issue of A. The consequence is, that as no interest springs to B. and no express estate is given after the death of A., the intermediate interest must be undisposed of, unless A. be considered as taking for the benefit of his issue as well as of himself; and as the words in this case are capable of such amplification, the Court naturally implies an intention in the testator that A. 'should so take, that the property might be transmissible through him to his issue, and he is therefore considered as taking an estate tail, which would descend on his issue. How an estate in chattels is not transmissible to the issue in the same manner as real estate, nor capable of any kind of descent; and therefore an estate in chattels so given, from the necessity of the thing, gives the whole interest to the first taker; but if the testator gives the fund expressly to the issue,” there is no room for implication and they take as purchasers. The same observations are repeated in substance in *Atty. Gen.*vs. *Bayley,*2 Br. 0. C. 558. In *Simmons*vs. *Simmons,*8 Sim. 22 (11 E. C. C. 303,) testator gave all his real and personal estate in trust for the separate use of his daughter- for life; “ at her decease she shall be at liberty to will the same to her issue, as she may think fit; but in case of her dying without issue, I wish *65the property to go to my dear brother and sister Gr. and A. for their natural lives share and share alike: In the event of my brother G’s death, pripr to the death of my daughter, then to the children of said G. share and share alike.”- .V. 0. Shad-well held that the daughter took an estate tail in the lands and an absolute interest in the personalty disposed of in same clause. In *Machell*vs. Weeding, 8 Sim. 4, (11 E. 0. 0. 296,) the devise was to testator’s son J. for life, “but if he shall die without issue, not leaving any children,” then land to be sold and the proceeds divided among three other sons, and if any of them should die before J. their shares to be divided among their children. Sir L. Shadwell interpreted, “ die without issue, not leaving any children,” as descriptive merely of dying without issue, and held that J. took an estate tail. He said, “I consider it to be a settled point, that whether an estate be given in fee or for life or generally, without any particular limit as to its duration, if it be followed by a devise over in case of the devisee dying without issue, the devisee will take an estate tail.”

In his treatise on "Wills, 1 vol. 490, Mr. Jarman says, “ where the devise over is to take effect on the event of the prior devisee dying without issue, *living at his*death, it has no effect in enlarging the prior estate for life into an estate tail, *(Lethuanllier*vs. Tracy, 3 Atk. 793,) as the event described is not that by which an estate tail is necessarily extinguished, for such an estate determines on the failure of issue at *any*time. The only question in such case would be whether the words would raise an estate by implication in the issue living at the death.” In the case of *Green*vs. Ward, above cited, Lord Gifford says: “ When a bequest is to A. B. for life, and on failure of his issue generally remainder over, it has been held that A. B. will take an estate tail; but that is altogether different from a case in which the property is given to A. B. for life with a limitation over, in case he should die without leaving issue at the time of his death: and I have *66been unable to find any instance in "which, a bequest like that which I have mentioned, has been held to give A. B. an estate tail. The gift over is valid, but there is no estate tail in the first taker.”

It follows, 'that if in this litigation we must construe the words of the will describing the event on which the estate was to go over as equivalent to dying without issue living at the death of Joseph, his life estate cannot be enlarged by implication. The consequence would be, in the event which has happened of the primary legatee’s leaving issue, that the property is undisposed of, as it cannot go to himself, his issue, or the ulterior legatees; and that the testator has miscarried in the attempt to dispose of his whole estate. In the case of *Green*vs. Ward, above mentioned, the clause in dispute disposed of personalty only; the will contained a general residuary clause, and the contest was between the issue of the first taker and the residuary legatee; in this case, the will disposes of real and personal estate together by the same terms in one clause, and it has no general residuary clause, and the contest is between a legatee and those who claim independently of the will. I have already expressed the opinion that the words of the gift over here might have been construed, if the event had been different, to pass the estate to the ulterior legatees; but no intimation has been given that» this must be the inflexible construction of the words, where the effect would be to pass the estate from all the express objects of testator’s bounty. Ye may look to the state of things at the making of the will to ascertain the intention of the testator, and, although with much caution (2 Jarm. 71,) to subsequent events as exhibiting what was probable and probably contemplated by the testator, at the time of devise; and we may give to the same words different interpretations under different circumstances in fulfilment of the same general intention of the testator. *Schoppert*vs. *Gillam,*6 Rich. Eq. 35. In *Stone*vs. Maulé, 2 E. C. R. 513, *67Sir L. Sbadwell, in discussing tbe effect of the words, without having any child or children seems to admit that the construction of them is flexible. “ Why am I to put a construction on these words which they do not strictly bear, for the purpose of defeating the intention of testator ? The question is not what is the effect of words creating an estate tail, but of words making a gift over.” In *Pachham*vs. Gregory, 4 Hare, 396, Sir J. Wigram remarks, “the consequence of disinheriting issue is one ground on which the Court seeks, if it can, to avoid a construction attended with it.” Grandchildren are permitted to take under a ¿Revise to children where there are no children, but not if there be children. *Drayton*vs. *Drayton,*1 Des. 331; *Deveaux*vs. Bamioell, lb. 499; *Smith's*case, 2 Des. 123*n; Puff*v. *Rutherford,*Bail. Eq. 9. The word children is ordinarily a word of purchase, but is not unfrequently a word of limitation. *Johnson*vs. Johnson, McMul. Eq. 345, where land and slaves were given to M. and her children: after her, by the same clause, is a strong instance. If land be devised to A. and his children, and he has no children at the time of the devise, he takes an estate tail. *Wild's*case, 6 Co. 17; *Reeder*vs. Spearman, 6 Eich. Eq. 92. In *Wood*vs. Baron, 1 East, 239, under a devise of testator’s whole estate, real and personal, to his daughter A., *“*who shall hold and enjoy the same as a place of inheritance to her and her children or her issue forever, and if she should die leaving no child or children, or if her children should die without issue,” then over; the Court of King’s Bench held that A. took an estate tail, though she had issue at the time of the devise and of the testator’s death. In *Doe*vs. *Wubher,*1 Barn, and Aid. 713, Lord Ellenborough discussing the effect of the words in the gift over “ die and leave no child or children,” disclaimed any stress on the word children as distinguished, from issue, as where the intent required it, it had been held to include all descendants, mediate and immediate. In *Raggett*vs. Beaty, 2 Moo. and *68Pay. 512, testator devised a messuage to G., and in case be should die and leave no child lawfully begotten of his body, then over, and it was held G. took an estate tail. The same construction of the words, “die without leaving any child or children,” was adopted in *Blesard*vs. Simpson, 42 E. C. L. K. 483, which was an express case of fee conditional. See also *By field? s case*cited in *King vs.*Snelling, 1 Vent. 231; *Sonday's*case, 9 Go. 127 ; *Robinson*vs. Robinson, 1 Bur. 38; 3 Br. P. 0. 180, *Dansey*vs. *Griffiths;*4 Man. & S. 62, *Maclcell*vs. *Weeding, Simmons*vs. *Simmons, supra.*These cases seem to justify the Court in ruling that the words employed in the gift over here, have the effect of giving to Joseph the immediate donee an estate in fee conditional in the lands, which estate has been in England converted into an estate tail by the statute *de donis*not of force with us. The result of my opinion on this point is, that Allen B. son of Joseph takes the land by descent, according to the form of the gift, subject of course to any charges and incumbrances thereon created by his father. *Izard*vs. *Izard,*Bail. Eq. 228.

Where personal estate is bequeathed in language which' if applied to real estate would create an estate tail either expressly or by implication, it vests absolutely in the first taker. *Garth vs. Baldwin,*2 Ves. Sen. 646 ; *Henry*vs. *Felder, 2*McO. Oh. 323. This rule is subject to an exception in estates tail by implication, where the words expressing failure of issue, receive different construction, as is the ease with the word *leave,*in reference to real and personal estate. Lord Thurlow in *Bigge*vs. *Bensley,*1 B. O. 0. 187, Lord Kenyon in *Porter*vs. *Bradley,*3 D. & E. 146, and Attorney General Bailey in a note to *Mazych*vs. *Vanderhorst,*have questioned the soundness of the distinction as to the force of the term *leave,*when applied to real or personal estate, but it is firmly established. Here however the question is between giving some effect to the will and declaring an intestacy; and the personal estate is disposed of in the same clause with the lands. *69Lord Eldon said in *Genery*vs. Fitzgerald, Jac. 468, (2 E. C. E. 218,) “ when personal estate is given to A. at twenty-one, that will carry the intermediate interest; if real estate be given at a future period that will not carry the intermediate profits; but when a testator mixes up real and personal estate in the same clause, the question must be whether he does not show an intention that the same rule shall operate on both ” and he decreed that rents as well as interest passed. The same doctrine was even inore authoritatively declared after much discussion and conflicting decisions, in *Ackers*vs. *Phipps,*9 Bligh N. S. 481. See also *Johnson*vs. Johnson, McMul. Eq. 345; *Gibson*vs. Mountford, 1 Yes. S. 490; *Glan-ville*vs. *Glanville,*2 Meri. 28; *Simmms*vs. Simmons, 11 E. C. E. 303. The words *leaving issue*do not necessarily import issue living at the death, or they would have that meaning when applied to real estate; and I conclude, in prevention of intestacy, not to allow to them in this case the effect of impairing an implication of an absolute estate in the personalty in the first taker. My judgment is that the personal estate given primarily to Joseph A. Addison is distributable, after the payment of-his debts, one-third to his widow and two-thirds to his son.

The estate real and personal given to Joseph A. Addison, after the death of his mother is governed by the same principles as the estate immediately given to him.

I am not quite firm in the conclusions announced in this opinion, and I desire that the parties take the judgment of the Court of Appeals.

Let this opinion stand for a decree, with leave to the parties to apply at the foot Lor further orders in execution thereof.

George A. Addison and others appealed and moved this Court to reverse the Circuit decree.

Because his Honor erred in ruling that Joseph A. Addison *70took a fee conditional in the realty, and an absolute estate in personalty, under the will of his father, Allen B. Addison. Whereas, it is respectfully submitted, that the said Joseph A. only took a life estate under the said will, and the remainder undisposed of, is distributable among the heirs of the said Allen B., as estate of which he died intestáte.

Allen B. Addison also appealed on the grounds:

That the decree is contrary to the intention of the testator, whose purpose was, to make a gift to the child or children of his son Joseph A. Addison, of all the property devised and bequeathed to the latter, and to exclude altogether from any portion of the said estate, the defendant, Emma L. Addison.

The defendant, Emma L. Addison, appealed on the ground:

That under the will of Allen B. Addison, deceased, his son. Joseph A. Addison, took in the lands thereby devised to him an estate in *fee simple*absolute, and not an estate in *fee simple conditional.*

Spann, Magrath, for Greorge A. Addison.

*Moragne,*for Allen B. Addison.

Carroll, for Emma L. Addison.

Per Curiam.

We concur in the decree of the Chancellor; and it is ordered that the same be affirmed, and the appeal dismissed.

DüNKIN, Dargaw, and Wardlaw, CC., concurring.

JOHNSTON, Ch., *dvMtante..*

*Appeal dismissed*