#### Hilliard J. Moore, and Wife, and others, *vs.*Dunbar Paul, and others.

Testatrix bequeathed personalty to M. T. “for and during the term of her -natural life, and after her decease to her lawful issue, if any. But in case of her decease without lawful issue, then ‘ over to P. T. and W. H.,’ share and share *alike:”*— Held, that there was no valid limitation to the issue of M. T. as purchasers, (a)

BEFORE DARGAN, OH., AT CHARLESTON, JUNE, 1854

Dargan, Oil. Mrs. Mary Tamplefc, formerly of Charleston, S. 0., died about the 22d September, A. D., 1790, seized and possessed of a considerable real and personal estate; all of which she disposed of by her last will and testament. The will was executed on the 25th of April, 1789. Among other dispositions of her estate, she bequeathed as follows: “And it is my will, and I hereby order, direct and appoint, that as soon *359as convenient after my decease, my stock of cattle, slaves, and their future issue, and my furniture, (excepting negro Hercules, herein before given unto my daughter Mary, the wife of William Sergeant,) be employed agreeable to the directions of my executors hereinafter named, and the survivor of them, until such time as William Henry Einden shall attain the age of twenty-one years, for the mutual benefit and sole advantage, and emolument of my legatees hereinafter named; at the completion of which time, or the decease of William Henry Einden, which first shall happen, I request my executors, or the survivor of them, the executors or administrators of such survivor, to caus'e a division to be made of the stock, negroes and their issue, and my furniture aforesaid, amongst my legatees hereinafter named, to whom I hereby give and devise the same in the manner following, that is to say, unto Elizabeth, the wife of Thomas Cambridge, one full moiety, or equal half-part thereof, for her separate benefit and use during her natural life, without the control and interference of her said husband, or of any other person or persons, subject nevertheless, in case of interference or control, as aforesaid, to my devise made to Gideon Dupont, jr., and John Dupont, of Goose Creek, and to the survivor of them, his executors and administrators; and after her decease, my will is, and I hereby devise and bequeath? order, direct, and appoint the same to vest in her lawful issue, share and share alike, their executors administrators and assigns respectively. And as for, touching, and concerning the other moiety or equal half-part of the stock, negroes, &c., aforesaid and increase, and issue aforesaid, I hereby give and devise the same unto Peter Tamplet Einden, William Henry Einden, and the aforesaid Mary, the wife of the said Captain John Trott, (the part and share of the said Mary, to and for her separate benefit and use, without the interference or control of her said husband, or of any other person or persons whomsoever, and subject to my devise made to Gideon Dupont, jr., and John Dupont, and the survivor of them, his executors and adminis*360trators as aforesaid,) *for and during the term of her natural*life, *and after her decease to her lawful*issue, *if any.*And the parts and shares of the said Peter Tamplet Finden and William Henry Finden therein, to and for their and each of their proper use and behoof forever, share and share alike. — ■ Put in case of the decease of the aforesaid wife of Captain Trott, without lawful issue, then I order, direct, appoint and give her part or share therein, unto the aforesaid Peter Tamplet Finden and William Henry Finden, share and share alike ; and in case of the decease of the aforesaid Peter Tamplet Finden and William Henry Finden under age, and without lawful issue, then their shares, or of the one so dying without lawful issue, to vest in and fall to the survivors, or survivor of them, the said Peter, William and Mary Trott, either in the whole, or in part, as the case may be, share and share alike.” The devise to Gideon and John Dupont alluded to in the foregoing clause, was a bequest to them of the property given to Elizabeth Cambridge and Mary Trott in trust for the preservation and protection of the separate estates of the said Elizabeth Cambridge and'Mary Trott.

The plaintiffs assume, that there is a valid limitation, or remainder, given to the children or issue of Mary Trott, of the ^property bequeathed to her in the clause of the will which has been recited, to take effect at her death. They also claim to be such remainder men.

The original bill was in the nature of a bill *quia timet,*Mary Trott being alive at the filing of the same. But since then, the said Mary Trott has departed this life, and the plaintiffs claim that their right to the possession has accrued if such right exists. They have filed a supplemental bill, in which the death of Mary Trott is stated, and the prayer is for a recovery of the negroes and account for hire.

The evidence as to the identity of the plaintiffs, and tKeir relationship to Mary Trott, was voluminous, and it established *361this part of their case, as stated in the bill, to my entire satisfaction.

The plaintiffs charged, that a division of the estate of Mary Tamplet, described in the clause of her will which has been quoted, was made in pursuance of the directions of the said will, and that to the said Mary Trott were assigned the following negroes, namely, Binah, and her children Dolly, Phillis, and Betsey, of whom the said Binah, Dolly and Betsey are since dead, living issue as follows : Dick and Sam, the children of Dolly, and Binah and Isaiah the children of Betsey. Phillis is still alive with her issue, as follows, namely, Betsey and her two children Charity and Richard, Charles, Lucy, Sarah, Jane, Abraham, Mary arid her six children, Jane, William, Sally, Rose, James and an infant, and Dinah and her four children, the names of which the plaintiffs say are unknown to them.

The plaintiffs further charge, that of the said negroes, Dick is now in the possession of James Adger, and Sam is in the possession of Mary Berney; that Dinah and her four children are in the possession of the defendant, Robert W. Seymour; that Mary Trott sold Betsey to one Andrew Manson ; that her children, Binah and Isaiah, were afterwards born; that said Betsey, Binah and Isaiah, are now in the possession of the defendant, Mary Manson, the widow of said Andrew Manson; that the defendant, John Elford, is in the possession of Sally, Rose and James, children of Mary; that Phillis, Betsey and her two children Charity and Richard, Charles, Lucy, Sarah, Jane, and two children of Mary, namely, Jane and William, are now in the possession of the defendants, Dunbar Paul and Alexander Gordon, executors of Isaac Lewis.

The evidence sufficiently establishes the following facts, — that such negroes exist, that they' are of the original stock derived to Mary Trott under the will of Mary Tamplet, and that the said negroes are in the possession of the said defendants, as stated in the bill, the said defendants all claiming in their own right. The defendants do not claim in common. They claim *362and hold in severalty, each one claiming the individual negroes that are in his or her possession respectively. There is no privity between the defendants, except as to the executors of Lewis, and it appears to me, that it was irregular in practice to join them, as defendants in the same suit; but no objection has been made on that ground, and I pass it by without further comment.

, If there be a valid limitation or remainder to the plaintiffs in the will 'of Mary Tamplet, as ,to the property given to Mary Trott in the clause which I have recited, the plaintiffs are entitled to the relief which they seek in this bill. The whole case will turn upon the construction of the said clause of the will.

The words of the direct gift are to Mary Trott “for and during the term of her natural life, and after her decease to her lawful issue, if any.” And the first inquiry will be, whether these words, in and of themselves, constitute a valid limitation in favor of the plaintiffs as the issue of Mary Trott.

It has been established by innumerable decisions, that where personal estate is bequeathed in language, which, applied to real estate would constitute an estate tail, or (by parity of reasoning,) a fee conditional in South Carolina, an absolute estate would vest in the immediate donee or first taker. The doctrine holds good, whether the estate tail is created by^express words or by implication. It also prevails in those cases where by the operation of the rule in *Shelley’s*case, estates tail are created. Issue is a word of very extensive signification. It embraces all the descendants to the remotest generation. *Unexplained,*it is a word of limitation and not of purchase. When explained by the will itself to mean issue living at the death of the immediate donee, the issue will take as purchasers. And this simple remark, I apprehend, will suffice to reconcile all the jarring decisions. When an estate is given to one and his issue, or to one for life, and after his death to his issue, the donor either means the issue in indefinite succession, or he means the issue that may be *in esse*at a particular period. To *363give tbe latter meaning to the word, there must be an explanatory or restrictive context, for the natural import of the word is the enlarged sense. He who assumes that it is used in the limited sense, must show the qualification, and wherein such qualification exists.

That the estate being limited expressly to the first taker for life, and after his decease to the issue, does not qualify the word “ issue,” so as to convert it into a word of purchase, is established by many cases of the highest authority.

In *Shaw*vs. Weigh, 2 Stra. 798, the devise was to the testator’s wife for life, and after her death to his sisters, A. and G., *during their natural*lives, and if they should happen to die leaving lawful issue, then in trust for such issue, and in default of such issue, over. It was adjudged by the House of Lords, that the devise created an estate tail. In *Dodson*vs. *Grew,*2 Wils. 322, the devise was to the testator’s nephew Gr. for life, and after his decease to the use of the male issue of his body lawfully to be begotten, and to the heirs male of the body of such issue male, and for want of such male issue, over. Held, by the Common Pleas, to be an estate tail in Gr. Wil-mot, Ch. J., said, the intention certainly was to *give*Gr. an estate for life only; but the intention also was that as long as he had any issue male, the estated should not go over; and if we balance the two intentions, the weightier is, that all the sons of Gr. should take in succession. Bathurst, J., laid it down as a rule, that where the ancestor takes an estate of freehold, if the word “ issue” comes after, it is a word of limitation. Gould, J., said that the word issue is used in thq Statute *de donis*promiscuously with the word *heirs,*that it comprehends the whole generation as well as the word *heirs,*&c. In this case, it is to be remarked, that the superadded words of limitation “ *heirs, male of such issue male,”*did not vary the construction.

The same construction prevailed in *Hodgson*vs. *Merest,*9 Price, 556, where the devise was, to one for the term of *his**364*natural life only,*and after bis decease, then to the issue of his body, and to the heirs of the body of such issue, with remainders over.

To the same effect are the cases of *Webb*vs. *Puckey, 5 Dnrn.*& East, 299 ; *Prank*vs. *Stovin,*3 East, 544; *Mogg*vs. *Mogg,*1 Meri. 654.

These cases, and many others that might be cited, abundantly, and conclusively show, that the words of Mary Tam-plet’s will, in her bequest to Mary Trott, would, if they had been applied to real estate in England, have created in Mary Trott an estate tail. Then it would seem that the conclusion is unavoidable, that the same words in a bequest of personalty, would give an absolute estate to the first taker, or immediate legatee, according to the rule before alluded to.

In the direct gift, the only circumstance relied on to restrict the word “ *issue,”*so as to make it mean issue living at a particular time, is that the bequest to the issue was *after*the decease of the first taker. The gift to Mary Trott is for her life, and *after*her decease to her issue, if any. The gift to the issue is entirely too indefinite as, to time. *It*does *not*appear at what time after the death of the immediate donee, the issue were to take. This expression is not so strong as it would have been, had the words been *at her*decease, or *immediately after*her decease. The Circuit decree in *Burst*vs. *Dawes,*4 Strob. Eq. 37, was brought to my notice as being favorable to the plaintiffs’ construction. But that case is different from the present in several circumstances. The gift to the first taker was for life, and *at*his death to his issue male, “and in default of such-to the issue female *surviving him,”*the said testator.

Upon the question under consideration, there is some conflict in the authorities.

In 2 Jarman on Wills, 494, it is said “ our next enquiry is, whether a bequest to A. *for life,*and after his death to his issue, operates by force of the same rule of construction, to vest the absolute interest in A.

*365“ Now as such a devise would clearly create an estate tail in A., and as it has been shown, that the rule which makes the legatee the absolute owner of personalty, where he would he tenant in tail of real estate, applies to gifts falling within the rule in *Shelley’s*ease, where *heirs of the body*are the words of limitation, as well as those in which an implied gift is raised to the issue,” “the inevitable conclusion would seem to be, that in the ease suggested, A. would he absolutely entitled.”

The learned commentator then admits, that this conclusion would be opposed to the decision made by Lord Thurlow in *Knight*vs. *Ellis,*2 B. C. C. 570 In that case, the gift was to trustees, in trust, to permit the testator’s nephew to receive the *interest*during his natural life, and after his decease he gave the money to the issue male of his nephews, and in default of such issue over. The question was whether the nephew was entitled for life or absolutely. The decision was that he had a life interest only.

But a more recent, and to my mind, a more satisfactory and consistent exposition of the law, has emanated from the English Chancery, by which it would seem, that *Knight*vs. *Ellis*has been overruled. The decision in the *Atty. Grenl.*vs. Bright, Keen, 57, decided by Lord Langdale, is in diametric opposition to *Knight*vs. *Ellis.*

In the *Atty. Geni.*vs. *Bright,*the testator gave the interest of five hundred pounds of six per cent, stock to two persons, and after the decease of the survivor of them, he gave the same to Susan Thomas, to receive the interest thereon during her life, and after her decease to her issue, and in case of her death without issue, then over. It was held, that the effect of this bequest was to give to Susan Thomas an absolute interest. It is worthy of remark, that the case of *Knight*vs *Ellis*was cited in the argument, with most of the other English authorities which have been brought to my notice during the present trial.

It is argued that the Court will resort to any, the most *366trivial circumstance, for the purpose of evading the operation of a rule, which defeats the intention of the testator. I am aware that such language has been held, and such a mode of construction has been sometimos acted on by Courts. But neither such language, nor such a mode of construction meets my approbation. It is safer and wiser to adhere to established principles, though they may sometimes be “ inconvenient in their operation, than to undermine them by distinctions without a difference.” It is better to wait for the Legislature to apply the remedy, if need be ; or broadly and directly to overrule an obnoxious rule or decision, than to resort to illogical and inconclusive reasoning for the purpose of overthrowing it. No argument should ever emanate from a Judge which *he*does not think will stand the test of reason.

The conclusion of my mind is, after mature consideration and anxious investigation, that there is nothing in the terms of the direct gift, which can restrict the word issue, so as to make it mean issue living at the death of the immediate legatee, and that therefore the issue under the words of the direct gift, cannot take as purchasers.

• My next inquiry will be, whether the generality of the word “ *issue”*in the direct gift is restricted and explained by the context, so as to make it mean’ Mary Trott’s issue living at her death. There is a limitation, or at all events, an attempt at a limitation over, in’default of such issue, to Peter Tamplet Einden and William Henry Finden.

Where, after a gift to one, there is a gift to his issue *expressly,*but in language so general, as to render it inoperative as a purchase to such issue, and it is followed by a valid limitation over in default of such issue, this will restrict the generality of the term issue, to issue living at the time of the death of the first taker, and entitle the issue to take as purchasers. For example: if there should be a bequest or gift of chattels to' A. for life, and after his death to his issue, and nothing more; this would be clearly an absolute estate in A. For as it is the *367intention to convey tbe *fee*in the estate, if A.’s interest is restricted to a life estate, and there should be no issue, the remainder in the estate would not pass, which would be contrary to the manifest intention. But if in the case supposed, the gift to the issue should be followed by this provision, that if A. should die without *leaving*issue, *then*that the said estate should go to B., this would be a valid limitation to B. in the event of A.’s dying without leaving issue. Otherwise if the limitation over had been general, on the event of A.’s dying without issue. “ *Leaving”*is a qualifying word, and restricts the “ *issue”*to such as should be living at the death of A. And as B. is not to have the estate if A. should leave issue, the law presumes that the issue meant in the direct gift are the issue which A. should *leave*at his death. It is upon reasoning like this that the general import of the word issue is explained and converted into a word of purchase. *Lampley*vs. JBloiver, 3 Atkins, 396 ; *Read*vs. Snell, 2 lb. 647 ; *Henry*vs. Means, 2 Hill, 328; *ILenry*and *Talbird*vs. *Archer,*Bail. Eq. 535.

But the testatrix, after giving the one-third of her estate to Mary Trott “for and during the term of her natural life, and after her decease to her lawful issue, if any,” proceeds to declare, “but in case of the decease of the said wife of Capt. Trott without lawful issue, then I order, direct, appoint and give her part or share therein to the aforesaid Peter Tamplet Einden and William Henry Einden, share and share alike; and in case of the decease of the aforesaid Peter Tamplet Einden and William Henry Einden, under age and without lawful issue, then tlieir shares, or the shares of the one so dying without lawful issue to vest in and fall to the survivors or survivor of them, the said Peter, William and Mary Trott, either in the whole or in part, as the case may be, share and share alike.”

It is argued, that there is enough in this clause to restrict the generality of the word *issue*in the direct gift. I have scrutinized it with great attention, and I can find nothing to *368that effect. There are two distinct dispositions aimed at in this clause. The first is, where the testatrix declares that the shares given to *Mary Trott,*if she should die *without lawful issue,*should go over to Peter Tamplet Einden and William Henry Einden, share and share alike. If the limitation had been, that the estate should go over to the Eindens, in the event of Mary Trott’s dying without *leaving*issue, then the case would have fallen within the principle of *Henry*vs. *Means,*and *Henry and Talbird*vs. *Archer,*and that class of cases. The issue mentioned in the direct gift would have taken as purchasers. But the words “without lawful issue,” in the limitation over, does not help the plantiffs’ construction, or render the word “ issue” in the direct gift any more definite.

The next disposition is entirely distinct, and relates exclusively to the shares given to Peter Tamplet Einden and William Henry Einden. Their, shares are limited over on the concurrence of two contingencies, namely, their dying “ *under age and without issue.”*The share of either of the Eindens so dying, was to go to the survivors or survivor of “Peter, William, and Mary Trott,” who were the three grand-children of the testatrix. The share of Mary had been previously given over on the single contingency of her dying without lawful issue, to the two Findens, (her brothers,) not as survivors, but conferring, if the limitation had been valid, a contingent but transmissible interest. The shares of. the Eindens were given over in the event of their dying under age and without lawful issue, to the survivors or survivor of the testatrix’s three grand-children. It is shown by the plaintiffs that Mary Trott was of age at the date of the will, which carried the disposition as to her share. The bill was filed 22d January, 1852. The will is dated 22d September, 1790, and the plain tiffs statejn their bill, that Mary Trott was near eighty-four years of age. It was argued for the plaintiffs, that Mary Trott’s share was limited over precisely as were the shares of the Findens, and that the limitation over was valid as being in favor of *survivors,**369as in the cases of *Massey*vs. *Hudson,*2 Meriv. 130; *Treville*vs. *Bilis,*Bail. Eq. 35; *Stephens*vs. *Patterson,*Bail. Eq. 42, and that then, under the doctrine of the cases arising under Thomas Bell’s will, *(Henry*vs. *Means, Henry and Talhird*vs. Archer,) the generality of the words of the direct bequest would be explained and restricted, and the issue of Mary Trott be entitled to take as purchasers. Whether all, or any of these conclusions would follow, it is unnecessary to decide. The basis of this superstructure of argument is entirely wanting: as the share of Mary Trott was limited over to her two brothers, simply, in the event of her dying without lawful issue. And amid all the conflicting authorities on this abstruse branch of the law, there cannot one be found to favor the opinion that such a limitation over was valid.

It is ordered and decreed, that the bill be dismissed.

The plaintiffs appealed on the grounds :

1. That the words of the will of Mrs. Mary Tamplet, giving and devising the share of Mary Trott *“for and during her natural life, and after her decease to her lawful issue, if any,”*do not convey an absolute interest in personal property to Mary Trott, as decreed by the Chancellor; but, it is respectfully submitted, of themselves, give to Mary Trott a life interest merely, with an absolute interest, at her death, to her *issue, provided tJiere be any then alive.*

2. That this construction is confirmed by the context, because the words “lawful issue” in the next preceding bequest, to wit, to Elizabeth Cambridge, are used as words of purchase, and mean *issue surviving at the death of the life tenant,*and the same words in the bequest to William H. Einden, and Peter T. Finden, embraced in the same clause with the bequest to Mary Trott and her issue, are used in the same *restricted*sense.

*3703. It is further respectfully submitted, that the superadded words providing for the ultimate disposition of the share of Mary Trott “ in case of the decease - of the aforesaid Mary, wife of Capt. Trott, without lawful issue,” and the disposition of the shares of William H. Einden and Peter T. Finden “ in case of the decease of the aforesaid Peter T. Einden and William H. Einden, under age and without lawful issue,” are the *same,*and are as follows, “then *their*shares,” [that is the shares of Peter, William and Mary] “ or the share of the one so dying without lawful issue, to vest in and fall to the survivors or survivor *of them,*the said Peter, William and Mary, either in whole, or in part, as the case may be, share and share alike,” that these words constitute a valid limitation over as to personalty, and by reflection give construction- to the word “issue” in the direct bequest; making it a word of purchase, and not of limitation. That the words in the f” t member of the sentence making the limitation over to Peter Tamplet Fin-den and William Henry Einden share and share alike, simply, are, in themselves, incomplete and unfinished, and are controlled by the more precise language of the subsequent member of the same sentence which disposes of the shares of the *three,*“Peter, William and Mary,” designating them as “ *their*shares,” to be vested in the “survivors or survivor *of them.”*

*FLayne,*for appellants.

To the rule laid down by the Chancellor in his decree, “ that where personal estate is bequeathed in language, which, if applied to real, would constitute an estate tail or fee conditional, an absolute estate would vest in the first taker,” the exceptions are so numerous, that the rule has ceased to be a practical guide. From *Forth*vs. *Ohapman,*through a series of English cases, the *same*words are construed *differently*as to realty and personalty. From *Mazyclc*vs. *Vanderhorst,*through a long succession of cases, the same thing has been ruled here.

*371“ Issue” is never found without a *“context.”*Never altogether *“unexplained.”*Takes so easily one meaning or the other, that, as the chameleon depends for its color on the substance it rests on, so the complexion is derived altogether from the context.

*Mr.*Bearne, 1 vol. p. 106, Butler’s ed. says: *“*Issue, by legal construction, is a word of purchase.” *Mr. Jarman (2*Jar. on Wills, 329) says, that “ on this point such discordancy prevails in the English decisions, that in the enunciation of any general proposition on thó subject the utmost caution is requisite.”

*Chancellor*Kent, 4 Com. 277 says, “ *issue*may be used either as a word of purchase or of limitation, but it is generally used by the testator as synonymous with child or children.” Id. 281 et. seq.

The Chancellor’s views are conceded as to *realty,*and the authorities touch *realty*only. *8'hato*vs. *Weigh,*cited in the decree, surely would *not*apply to *personalty,*so as to give an absolute estate.

The authority of Mr. Jarman, cited in the decree, is met by Mr. Eearne, vol. 1 p. 493 (by Butler). He says, *“A devise of a term to A. for life, and afterwards to his issue, it seems, does not enlarge the estate to A., hut after his death the whole vests in the issue.”*And the case of the *Att’y deni.*vs. *Bj'ight,*the *only*case as to *personalty*cited by the decree, is met by *Knight*vs. *Bilis,*and, as will -be presently shown, by a host of other authorities, both here and in England. The decree disapproves of the expression in *Kill*vs. *Kill,*Dud. Eq. 71, to this effect: *“*The books are full of cases in which courts have manifested anxiety to lay hold of even the most trivial expressions to tie up, as they express it, the generality of the phrase and limit its meaning to a failure of issue at the death of the first taker.” It is submitted, that if the books be really full of such cases, it would be safer and wiser to adhere to the authority of these cases, than to over-ride them on account of an imagined symmetry.

*372The whole class of cases making a distinction in the construction of the same words, as applied to real and personal estate, are disapproved by Mr. Jarman, and by Williams on Executors. They base their hope of reform on *Att’y Geni.*vs. *Bright,*and *Lyon*vs. *Mitchell.*Our Courts, however, have repeatedly recognized the authority of the cases which Jarman and Williams condemn; and if any thing can he considered as settled, it is that the same words are construed *more readily*to favor limitations over in regard to *personalty,*than *realty.*

First ground of Appeal:

Does “ issue” imply indefinite succession, as used in *this*case? Authorities direct that it does *not. Warman*vs. *Seaman,*Ch. C. 208 ; Finch R. 279 ; *Elliott vs. Jekyl,*2 Ves. Sr. 682; *Stoner*vs. *Ourwin,*5 Sim. 264; *Pleydell*vs. *Pleydell,*1 P. Wms. 749; *Meure*vs. *Meure,*2 Atk. 265; *Turget*vs. *Gauntt,*1 P. Wms. 432 ; *Atkinson*vs. *Kutchinson,*3 P. Wms. 258. Some thirty cases cited in a note as sustaining the general principle. *Glare*vs. *Glare,*Cas. Temp. Tal. 21; Fearne, 486; *Davis*vs. *GUIs,*3 P. Wms. 29 ; 2 Atk. 308; *Knight*vs. *Mlis,*2 B. C. C. 578, approved by Mr. Butler, Fearne, 490 — three times commented on in *Garrvs. Porter,*1 McC. 0. 90, and 2 Fonblanque, 79, approves *Knight*vs. *Bilis. Pinhury*vs. *Elkin,*2 Vern. 758 ; 1 Fearne (Butler), 495 and 490.

No case to the contrary when Mr. Fearne wrote. Since the days of Fearne, we have, *per contra, Att’y Geni.*vs. *Bright, Lyon*vs. *Mitchell,*Mr. Jarman and Mr. Williams.

The *new departure*taken in England has not been, hitherto, sanctioned by our Courts.

Jarman, himself, is *dubious,*and comments on *Att’y Geni.*vs. *Bright*in 2 vol. 496, 499 and 500. At p. 492 Mr. Jarman admits that the difficulty of construing is *increased*by use of the word *“ issue”*instead of “ *heirs of the body.”*He considers *Lampley*vs. *Blower, shaken*by *Lyon*vs. *Mitchell.*This case, *Lyon*vs. *Mitchell,*constitutes the new departure. Jarman, p, 330, note (k.) admits distinction between personal and real estate.

*373As to our own decisions, they are in accordance, certainly, with the *older*English cases. *Lampley*vs. *Blower*is repeatedly recognized ; and the reasoning in *Lyon*vs. *Mitchell*expressly and elaborately condemned by Ch. HaRPER, in *Talbirt*vs. *Archer.*

*Cordes*vs. Adrian, 1 Hill, Ch. 115, turns altogether on limitation over to surviving children — but shows “anxiety” — of the Court — to give such construction. *Templeton*vs. *Walker,*3 Rich. Eq. 543, shows the same “ anxiety.” In *Myers*vs. *Anderson,*1 Strob. 346, the words are, “ after their death to be the absolute property of the issue of their bodies for ever intent no stronger or plainer than in this will — on the ground that issue are made a new stock.

Chancellor, in *Myers*vs. *Anderson,*refers to Kent, 4 vol. 221; *there Budding ton*vs. *Kime*(1 Ld. R. 203, and 1 Salkeld, 224) is cited as authority, as likewise by Ch. Harper, in *Talbird*vs. *Archer,*but in the *neio departure*this old case is considered as overruled.

*McLure*vs. *Young,*3 Rich. Eq. 539 sustains reasoning of *Knight*vs. Kills; *Means*vs. *Henry,*2 Hill 328, 331 and 332.

If the words themselves leave the intent *questionable,*context renders it certain.

Second ground of Appeal:

2 Jarman, 355 note (j.) and 419.

Rule as to words superadded as to limitation over controlling direct devise, based on the above. *Talbird*vs. *Archer.*

Testator in the present case, has everywhere else used “ issue,” as a word of purchase. Cannot be *both*a word of purchase and limitation in the *same*will. Lord Talbot in *Grlenorehy*vs. *Bosville.*

If we have a *doubtful*word and *doubtful*context, shall we not be controlled by the sense in which the word is elsewhere used ?

If this fails to turn the scale, then

Third ground of Appeal:

*3742 Jarman, 434, 435. *Roe d. Sheers*vs. *Jeffrey,*7 T. R. 589, *Qordes*vs. *Adrian, Temyleton*vs. *Walker,*, are conclusive, if this be rightly construed in this ground of Appeal.

But if this construction be wrong, surely the limitation is personal to the Findens. The *interest*passes from either dying first, to the survivor.

The *three*grounds support each other, and may prevail, though neither, singly, would be sufficient. United must prevail, or construction of Courts a lottery.

Mary Trott claimed but a life tenancy. Purchasers never imagined that they bought more. Lawyers seemed never to differ. No difference on this ground. And why ? At date of the will not a solitary decided case made it even doubtful.

*Our “*new departure” would date from a time when the legislature has decided that policy requires the old decisions to go still further and to extend to real as well as personal estate.

*Who are issue ?*

Lineal descendants alive *at death*of life tenant ? *“*If any,” refers to that period. *Rutledge*vs. *Rutledge,*distinguishable —a *marriage settlement.*“Issue” to be born, primary objects. *Oorbet*vs. *Laurens*adverts to this. *Brmnmit*vs. *Barber,*2 Hill. 543.

*Mow are issue to take ?*

*Per stirpes*as would “ lineal descendants,” according to the Statute of Distributions. *Wythe*vs. *Thurlston,*Ambler, 556.

*Templeton*vs. *Walker,*3 Rich. Eq. 543 ; *(Jollier*vs. *(Jollier,*lb. 555.

*King, Buist, Beigling, Memminger, Petigru, Walker,*contra.

(a)

*Doun*vs. *Penny,*19 Ves. 545. Bequest to testator’s wife for life, “ and after her to Robert Doun and his male issue. For want of male issue after him, to William Doun and his male issue.” Robert died without leaving any male issue, and William claimed against Robert’s executors; *held*an absolute estate in Robert.

*Barlow*vs. Salter, 17 Ves. 479. Bequest to testatrix’s daughter, to her and her heirs, and in case she *dies without issue,*to be divided between his four nephews and nieces, one to take for life and her part to the sufvivors; *held,*that the daughter took absolutely — and the Court lays down the rule as to dying without issue, almost in the same terms with Ch. Dargan.

*Tale*vs. *Clarke,*1 Beav. 101; *Lepinevs. Ferard,*2 Russ. & M. 378; *Attorney-General*vs. *Bright,*2 Keene, 57; *Carter vs. Bentall, 2*Beav. 551; *Jordan vs. Lowe,*6 Beav. 350.

And see Mr. "Williams's opinion, 2 ffms. Ex’ors, 952-3, margin.

*Carr*vs. *Jeannerett,*2 McCord, 66, that the issue take by limitation.

*Whitworth*vs. *Stuckey,*1 Rich. Eq. 404, a case of real estate, but issue held a word of limitation.

Per CüRIAM.

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

JohnstoN, DuNKiN, Dargan and Wardlaw, CO., concurring.

*Recree affirmed.*