CHAP. XL. the death of A., they would subject the vested estate of the sons of A. to an executory devise, to take effect in the event of A. dying without leaving issue surviving him, a result which it is conceived the Courts, when applying the new rules of construction, will not hesitate to reject, in deference to the authority of the cases just referred to. The enactment which makes a devise pass the fee simple without words of limitation will, it is obvious, greatly extend the application of the doctrine of Goodright v. Dunham, and Malcolm v. Taylor; and in this respect seems to operate very beneficially, in concurrence with that which reads words importing a failure of issue as denoting issue living at the death, when not simply referential to the issue described in the prior devise. In the precediug remarks the new enactment has been regarded in its effect only upon the prior estates. With respect to the ulterior estate, i. e., the estate which is to take effect on the failure of issue, its operation is more decidedly beneficial, for it prevents such ulterior devise from being rendered void for remotness, where the words denoting the failure of issue would have the effect neither of referring to the objects of the prior devises, nor of creating an estate-tail by implication. 417 CHAPTER XLI. WORDS "IN DEFAULT OF ISSUE," &c., WHETHER THEY 1. General Rule. Exceptions. to Real Estate. III. in regard to Personalty. IV. Remarks on 1 Vict. c. 26, s. 29. issue, &c., ed to a failure of issue at the death. I. ANOTHER question, which often occurs in the con- In default of struction of words importing a failure of issue, is, whether when restrictthey refer to issue indefinitely (i. e. to a failure of issue at any time), or to a failure of issue at the death. Upon this depends their operation to confer an estate tail; for it is only when the words denote an extinction of the specified issue, irrespective of time or any collateral circumstance, that they create such an estate. Few points of testamentary construction have come more frequently under discussion than this; which has arisen, in a great degree, from the discrepancy between the popular acceptation and the legal sense of the phrase in question, and the consequent willingness to admit grounds for departing from the technical doctrine. In ordinary language, when a testator gives an estate to a person and his heirs, with a limitation over, in case of his dying without issue, he means that the devisee shall retain the estate, if he leaves issue surviving him, and not CHAP. XLI. General rule. Two exceptions. First, where phrase is, leaving no issue. IN DEFAULT OF ISSUE, otherwise; and where the phrase is, in case the first taker die before he has any issue, or if he have no issue, the intention probably is, that the estate shall belong absolutely to the devisee, on his having issue born. But the established legal interpretation of these several expressions is different; for it has been long settled (though the rule, it will be remembered, now applies only to wills made before the year 1838), that words referring to the death of a person without issue, whether the terms be, "if he die without issue," "if he have no issue," or "if he die before he has issue" (a), or "for want" or "in default of issue," unexplained by the context, and whether applied to real or to personal estate, (notwithstanding the distinction taken between these two species of property in some of the early cases (b),) are construed to import a general indefinite failure of issue, i. e. a failure or extinction of issue at any period (c). any This rule, however, admits of two exceptions: the first is, where the phrase is leaving no issue; with respect to which the settled distinction is, that applied to real estate it means an indefinite failure of issue, but in reference to personal estate (and real estate directed to be converted (d) is for this purpose regarded as personalty (e),) (a) Newton v. Barnardine, Moore, 127, pl. 275. As to this expression, applied to children, see ante, 325. (b) See Target v. Gaunt, 1 P.W. 748; S. C. 10 Mod. 403; Pleydell v. Pleydell, 1 P. W. 748; Nichols v. Hooper, Ib. 198. (c) Fitz. 68; 2 Atk. 308, 376; Amb. 398, 478; 2 Ed. 205; 3 B. P. C. Toml. Ed. 314; 1 B. C. C. 170, 188; 2 B. C. C. 33; 1 Ves. jun. 286; 3 Ves. 99; 5 Ves. 444; 9 Ves. 197, 580; 17 Ves. 479; 1 Mer. 20; 1 Barn. & Adol. 318; 7 it imports a failure of issue at the death. Under a devise, therefore, to A. or to A. and his heirs, and if he shall die and leave no issue, or without leaving issue, then over, A. would take an estate tail; but under a bequest of a term of years, or other personal estate, in the same language, A. would take, not the absolute interest, (as he would if the indefinite construction prevailed), but the entire interest of the testator defeasible on his (A.'s) leaving no issue at his death. Forth v. Chapman (ƒ) is the leading authority for this distinction, but it has been confirmed by a long train of subsequent decisions (g) extending down to the present period, which shew that it applies even where the real and personal estate are comprised in the same gift. Lord Kenyon, indeed, in Porter v. Bradley (h), questioned the soundness of the doctrine; but his dictum is inconsistent with a multitude of authorities, and has received the pointed reprobation of both Lord Eldon (i) and Sir W. Grant (k); his Lordship (f) 1 P. W. 663. (g) Atkinson v. Hutchinson, 3 P. W. 256; Sabbarton v. Sabbarton, Cas. temp. T. Talb. 55, 245; Sheffield v. Orrery, 3 Atk. 282, (where the additional words "behind him "-as to which see post-were used); Lampley v. Blower, Id. 396; Sheppard v. Lessingham, Amb. 122; Gordon v. Adolphus, 3 B. P. C. Toml. Ed. 306; Denn v. Shenton, Cowp. 410; Goodtitle v. Pegden, 2 Durn. & E. 720; Daintry v. Daintry, 6 Durn. & E. 307; Radford v. Radford, 1 Kee. 486; Doe d. Cadogan v. Ewart, 7 Adol. & Ellis, 636, the judgment in which contains an elaborate statement of the authorities, where the subject was personal estate; and Walter v. Drew, Com. Rep. 372; Doe d. Ellis v. Ellis, 9 East, (h) 3 Durn. & E. 146. (k) 9 Ves. 203. Lord Thurlow CHAP. XLI. CHAP. XLI. As to supplying the word leaving. Remark on Pye v. wood. emphatically declaring, that it went "to shake settled rules to their very foundation" (/). The circumstance, that the prior gift is expressly for the life of the first taker, so that the effect of construing the word "leaving" to refer to issue at the death, is, cognised in Daintry v. Daintry, 6 Durn. & E. 314, though his decision is hardly consistent with that recognition. (1) The introduction of the word "leaving" being so important in reference to personalty, the question often arises, in such cases, whether the word may be supplied; as where the testator, in one part of his will, uses the phrase "without leaving issue," and, in another, the words "without issue." In such case, the latter expression has been made by construction to correspond with the former in several instances, where the general plan of the will seemed to authorize it: Sheppard v. Lessingham, Amb. 122, ante, Vol. I., p. 428; Radford v. Radford, 1 Kee. 486, ante, Vol. I., p. 429. Each of these respective phrases, however, seems to have been allowed to retain its own peculiar force, in the recent case of Pye v. Linwood, June 29, 1842, (reported 6 Jurist, 618), where a testator gave the residue of his property to his two children, John and Elizabeth, in manner following: one moiety to John, his heirs, executors, administrators, and assigns, and, in case of his decease, without leaving lawful issue, then to Elizabeth, and her heirs, executors, administrators, and assigns; and the other moiety, together with the re version of the former moiety, the executors were directed to invest, in trust for Elizabeth for life for her separate use, and, at her decease, to go and be equally divided among all her children lawfully begotten, and, in case of her decease without lawful issue, then to John: Elizabeth had only one child, who died in her lifetime. It was contended, that the words "without lawful issue," in reference to the personalty, applied to issue living at the death, and that, consequently, the bequest over had taken effect; but Sir K. Bruce, V. C., held, that the deceased child acquired an absolute interest. Here, it will be observed, that there was sufficient difference in the mode of disposing of the several moieties to afford a strong suspicion that the testator might really not have had the same intention in each instance, and, therefore, the Court seems to have been fully justified in adhering to the literal terms of the will. To divest the interest of a child, who happened not to survive its parent, was a result which the expounder of a will would not be disposed to strain the testator's language for the purpose of accomplishing. It does not appear whether the particular point for which the case is here cited was presented to the V. C. |