of the son formed one of the events upon which the estate was given over, and as the words under consideration referred to issue male, which excluded the daughters and their issue, it seems not to be distinguishable in principle from those cases in which the testator had no issue. It is also observable that the case of Sanford v. Irby has been characterised by Sir Launcelot Shadwell as a strong decision (h); but it seems uncertain whether, in making this remark, his Honor had in view the doctrine under discussion, or looked merely at the question, whether the devise operated as an immediate gift of the reversion, which was the nature of the point then before him. It is also worthy of notice, that, in every case in which the construction in question has prevailed, the devise over was for the purpose of paying debts and legacies, and this possibly may have had some influence in restricting the application of the words referring to the failure of the testator's own issue to the period of his death. Indeed, it has been contended, by a recent able writer, to form the distinguishing feature of this class of cases (i),—a conclusion, however, which is not sanctioned by the general reasoning of the Judges who decided them (k). But to return to the general rule. Though it is clear that, with the exceptions before noticed, the expres sions to which it relates, applied to either real or personal estate, import an indefinite failure of issue, it mination do not appear. (h) See Egerton v. Jones, 3 Sim. 417. (i) Prior, 93. Neither in Wellington v. Wellington, nor in Lytton v. Lytton, was the fact of the property being subjected to debts and legacies adverted to by Lord Mansfield or Lord Loughborough; and in French v. Caddell, and Sanford v. Irby, the grounds of the deter (k) This point is now of less importance, as it cannot arise under a will made or republished since the year 1837, and may, therefore, be classed among the topics of controversy excluded by the enactment, presently considered, which makes words importing a failure of issue refer to issue at the death. CHAP. XLI. where applied is equally clear that in regard to either they will yield to a clear manifestation of intention in the context to use them in the restricted sense of issue living at the death; but, as to personalty, it seems they yield more readily to expressions and circumstances in the will tending so to confine them, than when applied to real estate. Such, it is well known, is the conclusion of Mr. Fearne (1) on this subject, though it cannot be denied, that since the period in which that gentleman wrote, this difference has been much narrowed; the later decisions having, on the one hand, overruled some of the grounds upon which words importing a failure of issue were formerly held, in Difference reference to personalty, to receive a restricted construc- to real and pertion, and having, on the other hand, given a restricted sonal estate. construction to the words in relation to real estate, by force of a context which, in Mr. Fearne's period, would not have been considered as authorizing it. Notwithstanding, however, this approximation of two classes of cases, there is still sufficient distinction between them to render it proper to treat of each class separately, and to suggest the remark, that the expressions which will cut down the established signification of the words, as applied to personalty, will not necessarily have that effect in reference to real estate; and, by parity of reason, where the restricted construction is adopted in relation to the latter, it applies, à fortiori, to the former. This diversity of construction in regard to real and personal estate appears to have originated in an anxiety to avoid an interpretation which would render any part of the will inoperative; for as a gift of personalty, to arise on a general failure of issue, is void for remoteness (m), it follows that the con (7) Cont. Rem. 471. (m) See rule against perpetuities discussed, Vol. I., p. 219. CHAP. XLI. struing of the words under consideration in their unrestricted sense, is fatal to the bequest over depending on them; whereas, in their application to real estate, they have, when so construed, the effect of creating in the prior devisee an estate tail, and the limitation, which it is their office to introduce, is then a remainder expectant on that estate. When restrict ed in regard to realty. Where the dying refers to a given age. II. We now proceed to inquire into the grounds upon which words importing a failure of issue are restrained to such failure at the death, in regard to real estate. 1st. It is clear that they receive this construction where the event of dying is confined to a definite age. Thus a devise to a person and his heirs, with a limitation over if he shall die under the age of twenty-one, and without issue, is construed, not as creating an estate tail, with a contingent remainder dependent on the event of the first taker dying under the specified age, (as would be the effect, if the words were considered to import an indefinite failure of issue (n),) but as a devise in fee-simple, subject to an executory limitation over in the event of the prior devisee's death under the given age, and leaving no issue surviving him (o). That the principle of the preceding cases applies whereever the dying without issue is restricted to (whether it be above or under) a particular age, may be inferred from the case of Glover v. Monckton (p), where real estate was (n) Such was the doctrine of the early authorities; and it seems to be more consistent with principle than that which subsequently obtained. See Soule v. Gerrard, Cro. El. 525. Also Hinde v. Lyon, 3 Leon. 64. (0) Price v. Hunt, Pollex. 645. Eastman v. Baker, 1 Taunt. 174. And, in Hall v. Deering, 1 Sid. 148, the point was much discussed, but no opinion was given by the Court. (p) 3 Bing. 15. devised to trustees, upon certain trusts, until the testator's son should attain twenty-one, and, when he should arrive at that age, in trust for him, his heirs, &c.; but in case his son should not live to attain such age of twentyone years, and the testator's daughter should be living at the time of the decease of his son, or in case his son should live to attain such age, but should afterwards die without lawful issue, then in trust for the daughter for life, with remainders over. The son attained twenty-one; and the Court of Common Pleas, on a case from Chancery, certified that he took an estate in fee, with an executory devise over in the event of his dying without having issue living at his death. The same principle probably would be considered as extending to every case in which a dying without issue is combined with an event personal to the individual, as the event of his dying without issue, and unmarried, or without leaving a husband or wife, (which is the meaning of "unmarried" in this situation). But it seems that the words referring to a failure of issue are not restricted to such failure at the death by the mere insertion of the contingency of the issue dying under age. Thus, if real estate be devised to A. and his heirs, with a devise over, in case A. should die without issue, or such issue should die under the age of twenty-one years, A. would be tenant in tail; for it is said, that does not necessarily shew that the testator is speaking of a failure of issue at the death of A. He is speaking of a general failure of issue, and then he alludes to the case of there being issue, and their dying under the age of twenty-one, which is a limited portion of the contingency which is expressed by the preceding words (q). But it is not by any means necessary that, because he has used words which (q) i. e. It is a contingency compounded of two events, one of such events being comprised in the other, and therefore superfluous. CHAP. XLI. Suggested exprinciple. tent of the Devise over, on issue dying un der age, not re strictive. CHAP. XLI. Effect of a collateral event being associated. have very little meaning, therefore the words " dying without leaving lawful issue," which signify a general failure of issue, must signify a leaving of lawful issue living at his death (p). What is the construction of the words, where the dying without issue is restricted to some definite period collateral to the devisee, (as in the case of a devise to A. and his heirs, with a devise over in case he should die without issue in the lifetime of B.), is a point which is involved in uncertainty. Three constructions present themselves:-1st, To read the words as applying to the contingency of A. dying in the lifetime of B. without leaving issue living at his (A.'s) death; 2ndly, To construe them as pointing to the event of A. dying in the lifetime of B., and of there being a failure of issue at any time, i. e. during the life of B., or afterwards; 3rdly, To read the phrase as denoting the event of A. dying, and of there being an extinction of his issue (i. e. both events happening) in the lifetime of B. The second construction would seem to be the most consistent with the general rule, which reads these words as importing a general failure of issue where the context does not demand a different construction; for the fact, that the words are associated with a collateral event, seems not to afford a valid ground for departing from the ordinary construction; and if so, the devisee would be tenant in tail, with a contingent remainder to take effect in the event of his dying in the lifetime of B. In the well-known case of Pells v. Brown (q), however, the Court seemed to incline to the (p) Per Sir L. Shadwell, in Grim- (q) Cro. Jac. 590. The devise his brother, then William to have those lands to him and his heirs and assigns for ever: Thomas suffered a recovery, and died without issue leaving William: and it was held, that this was not an estate tail in |