#### F. M. McCorkle *vs.*C. H. Black and Wife and others.

In a devise of lands to two or more persons to be equally divided among them, “to them during their lives, and after their death to their lawful issue followed by a provision, that if any of the said devisees should die, *“*leaving no lawful issue, the portion or portions of him or her so dying shall be equally divided among the *survivorsheld,*that the first takers or devisees named in the direct bequest, took a life estate with remainder to their issue as purchasers.

*TrevilU*vs. *Ellis,*Bail. Eq. 40; commented on and approved.

BEFORE DARGAN, OH., AT MARION, FEBRUARY, 1854.

Dakgan, Oh. Mrs. Matilda A. McClenaghan, late of the district of Darlington, departed this life on the 20th February, . A. D,, 1853, seized and possessed of a considerable real and personal estate; all of which she devised and bequeathed by her last will and testament, in manner and form as follows: “It is my will and desire after the payment of my just debts, that all my property," both real and personal, of which I may die possessed, (with the exception of two dollars hereinafter t<s he disposed of,) shall be equally divided between the ten following persons, in the manner hereinafter specified, to wit.: Matilda Eliza McIntyre, Richard A. McIntyre, Robert Charles McIntyre, Duncan McIntyre, George McIntyre, Archy McIntyre, Rebecca McIntyre, Joseph McIntyre, (children of my sister, Sophia McIntyre,) Mary Ann McClenaghan, (daughter of my sister, Emily McClenaghan,) and F. M. McCorkle, (now living in my house,) to them during their lives, and after their death to their lawful issue.

“ Should any one or more of the children of my sister, Sophia McIntyre, above mentioned, die leaving no lawful issue, in that case, it is my will, that the portion or portions of him or her so dying, shall he equally divided between the surviving brothers and sisters. Should Matilda Eliza Mein-*408tyre, or Rebecca McIntyre, marry, it is my will, that the property herein bequeathed to them, shall in no wise be liable to any debts of their husband, but the same shall be an estate separate, and belonging to them alone, and at their death to their lawful issue. Should Mary Ann McClenaghan marry, it is my will that the property herein bequeathed to her, shall not be liable to any debts of her husband, but that the same shall be an estate separate from his, and belong to her alone, and at her death to her lawful issue. Should she die leaving no lawful issue, it is my will that the property herein bequeathed to her shall be equally divided among her brothers and sisters. Should F. M. McOorlde die, leaving no lawful issue, it is my will that the property herein bequeathed to him, shall be equally divided between the children of my sister, Sophia McIntyre, hereinbefore named, or to such of them as are at that time surviving.” The other parts of this will are unimportant as to the question'involved in this cause. Richard H. McIntyre and Robert Charles McIntyre, were nominated the executors, but neither of them qualified as such; the said Richard having formerly renounced, and the said Robert Charles being under the age of twenty-one years: Whereupon the said F. M. McOorlde was duly appointed administrator with the will annexed, and took upon himself the execution thereof.

This is a bill filed by the said F. M. McCorkle, against the other devisees and legatees for a partition of the real and personal estate devised and bequeathed as before stated, and for an account. In pursuance of the prayer of the bill, a writ of partition was issued, and a portion of the negroes and a certain portion of the other chattels, have been specifically divided among the legatees, all of which was satisfactory to the parties, and has been confirmed by the Court.

But the commissioners appointed to make the partition, returned that the lands could not be divided without injury to some of the parties, and the Court ordered a sale of the said *409lands for the purpose of effecting the partition by dividing the proceeds of the sale. The sale has been made, and the proceeds thereof are now in the hands of the Commissioner, subject to the order of the Court.

This is an application for an order directing that the proceeds of the said sale of the real estate, should be distributed among the parties, and that the Commissioner should pay over to each one of the said devisees, his share, respectively. But a difficulty has arisen and a question is made, whether the said devisees are entitled to have their respective shares paid over to them unconditionally. It is contended that the said devisees take but a life estate in the said lands; that the issue of each of the said devisees take a remainder after the death of his parent, and that in the event of either of the said devisees dying without issue living, there is an executory devise over to the survivors. It is said that for the Court to change the investments, (converting the lands into money,) and to put the said devisees into the possession of their several shares in the form of cash, would be to put in peril and to destroy the rights of the issue as remaindermen, as well as the rights of those who may claim under the ulterior limitation. Wherefore it is contended that the said devisees should not receive their respective shares in cash, but that there should be an investment of the fund arising from said sale; that the interest should be paid to the said devisees and the *corpus*preserved for the remaindermen, &c.

This renders it necessary for the Court to construe the will of the testatrix. And the question is, whether as to the real estate, the said devisees take an estate in fee or fee conditional, or whether the issue take as purchasers by way of remainder, after the termination of a life estate in the first takers.

It is conceded on all hands, that as to the personal estate the limitation to the issue is good; that the immediate devisees take but a life estate, and that at their death, their shares respectively go to their issue as purchasers. Eor although by *410the direct gift to the issue, they could not take as purchasers, by reason of the generality of the words employed, yet, in the limitation over the word *leaving,*and the limitation to the survivors are, (each of them,) sufficient to restrict and explain the word “ *issue,”*so as to make it mean “issue living at the death of the first taker.” I need say no more upon this point, as it is not contested. Indeed the question could not arise upon the present pleadings, as the negroes have been divided, and not sold, and have gone into the possession of the different legatees, where they remain subject to the limitations of the will. The question will be as to the effect of those qualifying expressions upon the devise of the lands.

The gift is to the several devisees respectively for life, and after their death to their lawful issue. These words standing by themselves and unexplained, would certainly create a fee conditional. Whether a limitation can be engrafted upon a fee conditional, by way of executory devise, is a question which was much discussed in the late case of *Buist*vs. *Dawes,*but was left undecided, the ease having been decided upon another point. (4 Rich. Eq. 421; *McLure*vs. *Young,*3 Rich. Eq. 559.) Rut it was-held by a majority of the Court of Errors, in that case, that words which create a fee conditional in the direct devise, may be so explained and modified by an explanatory context, as to cut down the fee conditional imported in the first instance, to a life estate, with a remainder to the issue as purchasers. It is not my purpose to enter here into any discussion upon this topic. Rut assuming the principle above stated to be settled, as the result of the action of the Court of Errors in *Buist*vs. *Dawes,*I will proceed to consider whether the fee conditional imported in the direct devise of Mrs. McClenaghan’s will, has been cut down by other expressions and provisions of the will, into a life estate to the first taker, with a remainder to the issue as purchasers. I will now address myself to the consideration of the question, which has been raised and discussed in this case. Ry the foregoing *411remarks, having disposed of that which may he considered as preliminary, it will be necessary to inquire whether there are any qualifying expressions in this will, which will have the effect of explaining the generality of the word *issue,*so as to make it mean issue living at the death of the first taker.

The word *leave,*which occurs in this limitation over, though sufficiently restrictive as to personal estate, is not so, in reference to realty. *Forth*vs. *Chapman,*1 P. W. 663; *Mazyck*vs. *Vanderhorst,*Bail. Eq. 48.

It is said that the limitation over in favor of the *surviving*brothers would have that effect. As before intimated, this would be indisputably true, if the question related to personal estate. *Massey*vs. *Hudson,*2 Meriv. 130 ; *Nichols*vs. *Skinner,*Chan. Pre. 479 “ *Ranclaugh*vs. *Ranclaugh,*2 Myln. & Keen, 441; *Treville*vs. *Filis,*Bail. Eq. 40; *Stephens*vs. *Patterson,*Bail. Eq. 42. Whether the same rule applies to devises of real estate is the question.

There is no doubt that in the earlier cases a distinction existed, and that in a devise to several for life, and after their death to their issue indefinitely, with a limitation over, in the event of the first taker’s dying without issue, *to survivors,*did *not*have the effect of qualifying and restricting the generality of the words in the direct gift, as it did in cases where the subject matter was personal estate. The ground of the distinction, if obvious, is not at this day very satisfactory. In Eearne on Con. Bern, and Ex. Dev. 476, it is said, “though the Courts *in the case of personal estates,*generally incline to pay attention to any circumstance or expression in the will that seems to afford a ground for construing a limitation, after dying without issue, to be a dying without issue living at the death of the party, in order to support the devise over, yet in the case of *real estate,*it seems the construction is generally otherwise, 'for there we are to consider that the interest of the heir at law is concerned, which is always much favored by our laws.” *Foster*vs. *Ld. Romny,*11 East, 504. Under our *412American institutions, there is no distinction between real and personal property, so far as the interest of the heir at law is involved, and there is no reason founded upon policy, why such distinction should exist. If there be a gift of personal property to two or more persons, and after their death to their issue respectively, and if they should die without issue, then to the survivor or survivors, — if, I say, in the case supposed (that of a gift of personal estate,) the disposition in favor of the survivor, so qualify and restrict the general sense of the word issue, as to make it mean issue living at the death of the immediate donee, why should not a similar construction prevail as to the real estate, given in the same terms ? Why should not a similar intention on the part of the testator be presumed ? Every principle of reason requires that the same construction should prevail; unless the,Court be influenced by policy and reasons of State, or be fettered by precedents, that it cannot break through, without violating still more profound and general reasons of judicial polity. - As to policy in England, none' can be imagined for the origin of such a distinction, but that of favoring the heir at law, which cannot apply in this country, where all the persons entitled to take in cases of intestacy are equally heirs, and equally favored. And as to being bound by authority and precedents, I will now enter into an examination of them. The author already cited (Fearne on Rem., 553,) says, “ if *personal*estate is given to two or' more persons for life, with a limitation over to the survivor or survivors, (simply, without adding the words executors, administrators and assigns,) in case of the death of any or either of such persons without issue, the presumption *prima facie*is, that the word *survivor*is used in the plain and obvious sense, as meaning such of those persons as should be living when any of them happened to die, and not as simply equivalent to the word *others ;*and that the testator did not refer to an indefinite failure of issue, but that he referred to the dying of any of them, without issue living at their death.”

*413It does not appear that the learned author any where negatives the idea (except so far as an implication may he drawn from the passage cited) that a gift of real estate in the same terms *ivould not receive*the same construction. Nor does it appear, so far as my investigation has gone, that up to the time at which Mr. Eearne wrote his incomparable treatise, 'any cases of this kind had arisen affecting real estate ; but Mr. Charles Butler, in his edition of Eearne’s treatise, appends a note at page 539. In this note, he says: “ Since the first publication of Mr. Eearne’s Essay, some cases have come before the Courts, in which the construction of the word *‘ leav*ing’ in devises has been considered. These were preceded by the case of *Hoe*vs. *Scott*and *Stuart,*Easter Term, 27 Geo. 3, which Mr. Powell, in an annotation to this part of Mr. Eearne’s essay, gives from a manuscript of Mr. Eearne’s, and he informs us that it was in consequence of, and decided in conformity with, an opinion which Mr. Eearne delivered upon it.” “In that case the testator devised certain *lands*to his son James, to hold to him, his heirs and assigns forever ; and other *lands*to his son John, to hold to him, his heirs and assigns forever; and other *lands*to his son Thomas, to him, his heirs and assigns forever; with this express condition : that his son Thomas should yearly pay to a grand-daughter of the testator, the sum of ¿S3 till her age of sixteen, and the testator charged the same premises with such payments; and then added, that his will and mind was, that if either of his three sons should depart this life without issue of his or their bodies, then the estate or estates of such sons should go to the survivors or survivor; and if all his said three sons should happen to die without such issue, then he devised all the said premises to his four daughters, and their heirs and assigns forever. The three sons survived the testator and entered, and John died sometime after, intestate and unmarried. And it was held, that the devise to Thomas did not give him the fee, but an estate tail which descended to- his daughter, and upon her decease without issue, *414the estate went over to James the then surviving brother, and not to the heirs of the said daughter.”

In *Porter*vs. Bradley, 3 Durn. & East, 143, the testator devised lands to his son, his heirs and assigns forever, with a devise over in ease he should *die and leave no issue behind him.*It was held that *the*leaving issue was to be referred to the time of the son’s decease, and that therefore the limitation over was good bj *way*of executory devise. This case is not exactly in point in th'e issue here involved ; but I cite it for the purpose of showing how easily in the English Courts, the rule, even as to realty, is made to yield to the apparent intention of the testator.

In the case of *Roe*d. *Sheers*vs. Jeffry, 7 Durn. & East, 580, the testator devised *lands*to T. Eriswell and his heirs forever ; “ but in case he should depart this life and leave no issue, then to Elizabeth, Mary and Sarah, the three daughters of W. and M. Eriswell, or the survivor or survivors of them, to be equally divided betwixt them, share and share alike.” It was held by Lord Kenyon, that these words were equivalent to “ dying without issue living at the death of the first taker,” and that the limitation over was good as an executory devise. His Lordship laid much stress on the fact, that the devise over was to persons in *esse*at the execution of the will. He said it was a question of intention *“*and it was impossible not to see> that the failure of issue intended by the testator, was to be a failure of issue at the death of the first taker, and *if so, the rule was not to be*controverted.”

I cannot but think the language of Lord Kenyon, in *Porter*vs. *Bradly,*as applicable *to*this question. In speaking of Lord Macclesfield’s argument in *Forth*vs. *Chapman,*he says : “ but it is contended, that this rule is confined to chattel interests only : however, a great deal of argument is necessary to convince me, that in the case of realty, these words shall be taken to mean indefinite failure of issue. It would be very strange if those words had a different meaning, when applied *415to real and personal property. If such a distinction existed in the law, it certainly would not agree with the rule, *Lex plus laudatur guando ratione prdbatur.” We have*such an anomaly in *Forth*vs. *Qhapman,*and the cases decided upon its authority. The distinction is entirely too subtle and artificial to command the assent and approbation of the unsophisticated reason. I would not dare to deny the authoritative force of *Forth*vs. Qhapman; but I would say, there would be no wisdom in unnecessarily multiplying such anomalies.

A distinguished American 'jurist, 4 Kent, Com. 276, in summing up the authorities on this subject, holds the following language : “ The series of cases in the English Law have been uniform from the time of the year Books down to the present day, in the recognition of the rule of law, that a devise in fee, with a remainder over, if the devisee dies without issue, or heirs of his body, is a fee cut down to an estate tail; and the limitation over is void by way of executory devise, as being too remote, and founded on an indefinite failure of issue. The general course of American authorities would seem to be to the same effect, and the settled English rule of construction is considered to be the equally settled rule of law in this country; though perhaps it is not deemed of quite so stubborn a nature, and is more flexible, and more easily turned aside by the force of slight additional expressions in the will. The English rule has been adhered to, and has not been permitted, either in England or in this country, to be affected by such a variation in the words of limitation over, as *dying without leaving issue ;*nor if the devise was to two or more persons, and if either should die, the survivor should take.” I cannot but think that the learned commentator in the last proposition contained in the passage quoted, has not displayed his usual ability and accuracy of research. Some of the English authorities, which I have already brought to view, must have escaped his attention. He remarks at page 278, that “the disposition in this country has been equally strong, and in some instances, much *416more effectual than that in the English Courts, to break in upon the old immemorial construction upon this subject, and to sustain the limitation over as an executory devise.” He admits the case of *Dur*vs. *Schank,*3 Hallsted, 29, and the case of *Anderson*vs. *Jackson,*16 John. It. 382, were directly opposed to his own views. In the last case, the devise was to the testator’s two sons in fee, and if either of them should die without issue, to *the survivor.*The case was elaborately discussed, and the construction turned entirely upon the effect to be given to the word *survivor.*There was no other qualifying expression in the will to restrict the indefiniteness of the words *dying without*issue. It was decided by the highest appellate Court in the State of New York, (Court of Errors,) that the limitation over was good as an executory devise.

In *Cutler*vs. *Doughty,*23 Wendell’s Rep., 513, it was declared, that a devise to the survivor- or survivors of another after his death without issue, was not void as a limitation upon an indefinite failure of issue; that it was good as an executory devise; that the word survivor qualified the technical or primary meaning of the words *dying without issue,*which must be read, *dying without issue living at the time of his death.”*

It seems that a contrary rule has been established in Virginia by a series of decisions in that State.

The great American Expositor (Chancellor Kent,) in note 1, 4th vol., 5th edition, page 277, admits that later cases *“*seem to be sufficient to change the former rule, and that a limitation to the survivor may be good by way of executory devise.”

In South Carolina, there is but one case reported, (so far as my researches have been extended,) in which this question has been decided as to real estate. *Treville*vs. *JEllis,*Bail. Eq. 42. This case is similar to the one in hand, in this, that it was a gift by will of both real and personal property. Richard Ellis by his will gave his real and personal estate to his widow and children in different proportions ; and by one of the clauses of said will declared as follows : “ It is my will and desire that *417should any of my children die without lawful heirs of their body, their part or division of my estate shall be equally divided between the *surviving*children, share and share alike.” The case does not from the report seem to have excited much attention, or to have been elaborately discussed. Still the fact, that the question arose on a gift of real as well as personal estate, was not passed unheeded.” The fact was noticed, and was the subject of comment! Whether there might be a distinction in the application of the rule in cases relating to real estate, does not seem to have entered into the consideration of the Court. It was decided, that the indefiniteness of the expression *dying without heirs*of the body, was controlled by the limitation over to the survivors, and one of the testator’s children, an immediate devisee, having died without heirs of his body, the limitation over to the other children as survivors, was good as an executory devise, and they took as such, both the real and personal estates.

I am free to confess, that heretofore I have not been entirely satisfied (as respects the real estate,) with the correctness of the decision in *Treville*vs. *JSllis.*But I rise from this investigation with all my doubts removed and fully satisfied to subscribe to its correctness.

The language of the devise to Mary Ann McClenaghan, (now Mrs. Black,) is different from that of the devise to the children of Sophia McIntyre. The limitation over is, “that should she die and leave no lawful issue, it is my will that the property herein bequeathed to her, shall be equally divided between her brothers and sisters.” The absence of the provision in favor of survivors, is an important variation. The brothers and sisters, if they could take under the limitation over, would take a transmissible interest. And for that very reason, they cannot take at all. The limitation over is void for remoteness, and the issue cannot take as purchasers. Mary Ann McClenaghan (Mrs. Black) takes in the lands a fee conditional. But it is her separate estate, however. The devise *418to E. M. McCorkle falls into the same category with that of the children of Sophia McIntyre : the words are : “ Should E. M. McCorkle die leaving no lawful issue, it is my will, that the property herein bequeathed to him shall be equally divided between the children of my sister Sophia McIntyre, or to such of them as *are at that time surviving.”*

It is ordered and decreed, that it be referred to the Commissioner to report a fit and proper person to be appointed as trustee of the separate estate of Mrs. Black, and that her share of the proceeds of the sale of the said real estate be paid to such trustee when he shall have been properly qualified, to be held by him for the purposes declared in the will of and concerning said share.

The motion of the other devisees for distribution is deferred for the present, and it is referred to the Commissioner to report a suitable scheme for the investment of the fund in which the said other devisees of Mrs. McClenaghan are interested; so that the immediate devisees (parties to this bill) may receive the annual income thereof, and the *corpus*be preserved for those who are to take in remainder.

E. M. McCorkle, the McIntyres,' and Davis and Wife, appealed, and now moved this Court to reverse the decree on the grounds:

1. Because the decree is erroneous, contrary to law and a proper construction of the will, in adjudging that the said devisees under the will take only a life estate with a valid remainder to their issue as purchasers; and in default of issue with a valid remainder over to the survivors: whereas, it is respectfully submitted, that, under a proper construction of the will, the devisees took either fee simple, or fee conditional estates, and that in either event the limitation over was void, and the devisees are entitled to the proceeds of the sale of the lands.

*4192. Because the decree is contrary to law and a proper construction of the will of Mrs. McClenaghan.

Dargan, for appellants.

*Daw,*contra.

PeR CURIAM.

This Court concurs in the circuit decree. It is therefore ordered, and decreed, the decree he affirmed, and that the appeal he dismissed.

Dunkin', Ch., concurred.

WaRDLAW, Oh.

I join in affirming the circuit decree in this case, but as the course of reasoning which leads me to the Chancellor’s conclusion differs in some particulars from that pursued by him, I add a brief explanation of my views.

The proposition of the appellants, that the devisees here take a fee conditional, seems to me to be properly deduced from the terms of the will. This is conformable to the opinion of one-half of the Court of Errors in *Buist*vs. Dawes, and is sufficiently vindicated in the opinion of Chancellor Dargan in that case. 4 Rich. Eq. 430. I think, however, that there may be a valid executory devise upon a fee conditional, if limited to take effect within lives in being, and twenty-one years afterwards ; and that in the present instance the limitation over does not infringe the rule against perpetuities.

My opinion upon this doctrine has been already expressed in the case above cited, *lb.*496; and nothing will be added now except notices of three of our cases, which were there inadvertently omitted.

In *Cruger*vs. *Heyward,*2 Des. 94, testator devised Calle-washie Island, with the slaves, &e., thereon, to his son B., *“*but in case he die without lawful issue, then I give it to my grand-son *420D., his heirs and assigns foreverand it was held, that the limitation over was not too remote. The Court says, *lb.*112 : “ There is no doubt if the statute of intails was of force in this State, that B. would have had an estate tail in the land; for it is laid down clearly in the hooks, that if lands are devised to one, and if he die before or without issue, or not leaving issue, it is devised over, such limitation creates an estate tail: but that statute not being of force, the estate he took was a fee conditional at common law; the reversion of the estate still remaining in the testator; which he had a right to dispose of, and which he has done in this clause to his grand-son D. and his heirs.” This decision might not be upheld at this day, so far as it determined that the words in the devise are adequate to restrict B’s ‘ dying without lawful issue’ to the failure of issue at his death; and so far as it intimates that a fee conditional is a particular estate' like a fee tail, capable of supporting a remainder; but why should it not be recognized within proper limits, as establishing that a devise over may be engrafted on a devise of fee conditional ? To this latter extent it is a subsisting authority.

*Milledge*vs. Lamar, 4 Des. 617, is a similar case. There A., by deed confirmed by his will, gave all his estate, real and personal, to B. and his heirs, on the condition that if B. should die without any heir of his body, then and in that case the whole of the then remaining property should be equally divided between the children of donor’s three brothers, C. D. and E. B. left at his death no heir of his body, but left a wife. In a contest between the wife and the children of the brothers, it was held that the gift over to the children was not too remote, and that the wife, as widow of a tenant in fee conditional, was entitled to dower in the lands. The instrument of gift was treated by the Court as a will. Perhaps this case, too, may be obnoxious to criticism as to the efficacy of the words in the gift over to confine the failure of heirs of the body to the date of the first taker’s *death;*but this error, if it be one, does not impeach *421the doctrine of the Court that a devise over may be limited on a fee conditional.

In *Treville*vs. *Ellis,*cited in the circuit decree in this case, the Court of Appeals was not informed whether or not the will contained words of perpetuity in the gift to the first taker. As the law stood when the testator died, and before our Act of 1824, without words of inheritance or perpetuity an estate for life only in lands would pass to the devisee. The Court determined that whether a life estate or a fee simple was given to the devisee, the plaintiff there was entitled. If a life estate was given, the limitation over was good. If a fee simple absolute was given, this would be converted into a fee conditional by the terms of limitation over on the condition the devisee died without lawful heirs of his body ; and as the devisee had not fulfilled this condition, it would depend on the force of the words ‘ surviving children’ to fix the death of the devisee as the epoch contemplated for the extinction of issue, whether the estate would revert to the heirs of the testator or pass to the executory* devisees; and in either aspect the plaintiff was entitled. The Court says : “ If the words ‘ surviving children’ are to be considered as limiting it (death without issue) to the dying without issue living at the death of the first taker, then the limitation over is good by way of executory devise, and the effect will be the same both as it regards the real or personal estate. *Barnfield*vs. *Wetton,*2 Bos. and Pul. 324.” It is necessarily involved in the opinion of the Court, that there is nothing in the nature of a fee conditional, more than a fee absolute, to prevent an executory devise to be limited on it which is not void for remoteness.

The Chancellor’s reasoning is entirely satisfactory to me as to the sufficiency of the words “ surviving brothers and sisters” to tie up the generality of the phrase “ die leaving no lawful issue.” To the authorities cited by him may be added the recent case of *Matthis*vs. *Hammond,*6 Rich. Eq. 381, in which the Court of Errors was almost unanimous on this point.

*Decree affirmed.*