Joseph W. Russ, Adm'r of the estate of Margaret B. Russ and others, Appellants vs. Martha J. Russ, a minor, by her next friend, B. F. Parker, Appelle, 9 Fla. 105

FORWARD, J., after reading the stafement of the ''-ase prepared hy him, proceeded to deliver the opinion of the Court. From the statement of the case, it will be seen that the complainant, who is a grand-child of the testator and the daughter of Wm. II. L. Euss, a son of the testator, who died in tlio lifetime of the testator and before his will was made, and who is the same person provided for in the eJeveuiJi clause of the will, where she is called “Mary Jane Euss," claims to he entitled as one of tbe next of kin to a distributive share in the estate which Margaret B.

Russ took under the will of the testator upon the ground that the said- Margaret B., by a proper and legal construction of her father’s will, took, an estate in fee in all the real estate and absolutely all tbe personal property which she derived from said will; that in legal construction the words “ heirs of her body,” in the bequest in the 8th clause of the will, mean an indefinite failure of issue, and that, under this bequest, if the statute of this State for abolishing entails had not been passed, Margaret B.

Buss would have been seized vafea tml of one undivided third part of the premises, real and personal, as one of the first takers, under the rule in Shelley’s case, which is: “Where the ancestor takes an estate of freehold, either legally or equitably, by deed, will or other writing, and in the same instrument there is a limitation by way of remainder, either with or without the interposition of another estate, of an interest of the same legal or equitable quality, to his heirs or the heirs of his body, as a class of persons to take in succession from generation to generation, the limitation to the heirs entitles the ancestor to the whole estate.” — 1 Coke Rep., 93; 4 Kent’s Com., 216; 2 Jarman on Wills, 243.

The word hews is a word of limitation, i. e. the ancestor takes the whole estate comprised in this term. Thus, if the limitation be to the heirs of his body, he takes afee tml; if to his heirs general, afee sinvple. The defendants take the position, that, by a fair and legal construction of the will, all the property given by it to Margaret B. Buss, at her death became the property of her surviving brother and sister, Jos. W. and Mary E.

Buss, under and by virtue of restricting words and expressions therein used, from which it can be collected that these words, “heirs of her body,” are used in a more confined, sense, whereby a precise time is fixed by the will for the failure, making it a definite failure of issue, emltocUng the bequest and devise from the rule in Shelley’s case and bringing the same within the rule as to executory devise, which is, “ that an estate cannot be entangled by executory devise beyond a life or lives in being, and the further period of twenty-one years, and. so much over as will meet the case of a posthumous cliild.” — 10 Bingham, 140; 4 Kent Com., 267.

It is contended, that the superadded words, in the 14th clause of the will, define the intention of the testator and should be made to supply the words “living at the time of the death” of said Margaret B. Buss, and construe the words “ heirs of the body ” to mean children. It is argued, that, in construing the will, the whole will must be taken and considered together, and that the two clauses, the 8th and 14th, should be thrown into one.

The two clauses of the will upon which the question of title depends, and are presented for our consideration, thrown into one, read as follows, viz: 8th item. “ I gime mid bequeath unto nuy daughter Margan'et B. Buss, and the heirs of her body, the following slaves :• Penny and her three children, Elsey, Edward and Bebecca, Sarah Ann, David, "Walter, Joe, little William, little Paul, Ben, Dinah, Susan, Anderson and Gib, and the future increase of said female slaves.” 14th item. “It is my will, that in the event of the death of Joseph W. Buss, Mary B. Buss or Margan'et B.

Buss, without heirs of their body of the one so dying, that his or hen-property be 'divided equally between the survivors ok them.” The question for this Court is, whether the bequest to Margaret B. Buss comes within the rule in Shelley’s case, or whether it will take effect as an executory devise?

The intention of the testator is the polar star to guide in the construction of a will, which intention does not depend on any particular clause standing by itself, but is to be gathered from the whole will taken together; and where the testator’s intention is manifest it must prevail, if it is not contrary to some positive or settled rule of law'. The learned counsel on both sides have exhibited extraordinary research, and in their arguments and briefs have with great ability cited cases and elementary books -which almost exhaust the subject.

As their briefs will be abridged and furnish the reporter to be printed with this decision, we hope we may be excused for enumerating only those authorities cited which are deemed essential in expressing the opinion of the Court and the grounds upon which their decision is based.

Having laid down the rule for the construction of this will, the question is, whether there are expressions or circumstances, or both, from which it can be collected that the words “without heirs of the body,” and heirs of the body, are used in a more confined sense, and therefore are not to have their legal signification: namely, death without issue generally. The words “heirs of the body” are said to be words of art and import heirs ad infovitami, if nothing to restrain is super-added.

To restrain here is meant superadded words which fix a definite time for the failure of issue, such as heirs liming at the time of the death of the legatee. The rule in Shelley’s case is not applicable where the testator used the word “heirs” in any other sense than the legal one. This will of Joseph Buss, dee’d, presents the case of a father and head of the family providing for his entire household.

He begins by making provisions for his wife, secures to her a life estate with remainder to his children, one of his sons being then dead but leaving a child, (the complainant • in this suit.) lie provides for the grand-child as he did with his own children. He also makes provisions for a stepson, and for his living children.

Being, as it would seem, desirous that all who have equal claims upon him, and who stand equal in his affections, should have his property, he limits it “to heirs of the body,” and by the 14th and final clause, superadded words to show that the benefit intended by him to his children was clearly future and contingent,, because they were to take as sv/rvimors, and as survivors, they were to take when any one of them should die without-heirs of the body living at the time of the death. The pre■cise time is fixed, for tlie failure of lieirs. It was at tlie time of tlie death of any one of them.

Who would be the sumvimor was a contingency. Could any one of the children have disposed of this property before this contingency happened, to wit: the death without heirs of the body living at the time of the death of one of them? No. Why? Because, up to the time the contingency happened they had but a life estate. The power of alienation was restricted by the intestate until the death of one of them. lie entangled the estate of his children, but he did not entangle it beyond a life or lives in being. Thus he was within the rule of an executory devise. In taking the will as a whole, what did the father mean ?

We think from the expression and situation of the children contained in the will, he meant to gime this property to his three children mentioned in his said will: one-third to Margaret B., his daughter, and to her posterity, if she has any at the time of her death, but, if she has no children, (heirs of her body,) he then meant the property so devised and -bequeathed should go to his surviving children Joseph and Mary, to be equally divided between them.

If Mary had died first without children, then to be equally divided between his surviving children Joseph and Margaret; or if Joseph had died first without children, then to be equally divided between his surviving (children. He limited the estate up to the death of one of them to a life estate. The contingency was the death of one of them, and the remaining two children, if they took .the estate of the deceased sister at all, it was as sumvimors.

It seems to us the testator said to his three children, who were equally dear to him: Now, if one of you die without children at the time of the death, then the two who shall survive shall have the share of the one that dies; but if “the one so dying” shall leave at the time of “his or her” death any child or children,.then “Ms or her property” shall go to the children of the one so dying. Your fight to the property “of the one so dying” will be determined when the contingency upon which it depends happens, to wit: at the death of any one of you.

Until that contingency happens, so that it may be determined whether you have the share thus willed to the one of you so dying, I restrict the , alienation of any of your bequests. That is to , say, you can none of you alienate the portion I have willed to you until one of you dies. Dv/rmg the Ufe of all of you in being your bequests are entangled.

Had he used the term “ children ” in his will instead of “ heirs of the body,” no one could have doubted his intention. ■W"e think the intestate intended that if either of his three children should die without issue living at the time of the death of the one dying that the whole property devised to the three should pass to the swmmors as survivors of them forever, to be equally divided between them.

Having thus defined what we think was the plain and manifest intention of the intestate, we are next to enquire whether this intention must prevail, or whether it is contrary to some positive or settled rule of law cozzvertizig the intention of the testator to a purpose altogether different from what he intended ? Here is the tumizig poizit of this, whole case. There is no difference of opinion as to the law arising under the rule in Shelley’s case. The multiplicity of cases cited agree on that.

The difficulty which has arisen, azid which so much bewilders Courts, is the application of that law; and here we would remark there is a difference between exceptions to the rule azzd exclusions from the rule. It is observed by Mr. Hays, in his very clear azid able essay ozi the disposition of real estate, that the cases which, might appear at first sight to furnish exceptions to the rule are ziot cases of exceptions, but of excUisions — cases in which there was no szich limitation as the rule intends.

It is said the words u heirs of the body ” are words of art, azzd it certainly cannot fail to strike one who may take pains to read tlie many cases where it is attempted to bring these words within the technical rule and thereby frustrate the purpose of the testator, that they are a/rtfully used; and so common is the thought, where the words “ heirs of the body ” are used, that the sight alone of those words is enough, without further examination, to establish an entail/ment.

We think, if the rule as to executory devise be kept before us in expounding the will of Joseph Buss, deceased, there can be no difficulty of bringing it within that rule and excluding this will from the rule in Shelley’s case.

It will be seen, if we are right in the force to be given to superadded words, the essential quality to support an executory devise exists, namely, in definitively limiting the time when the contingency should happen, to wit: at the death of either of them without heirs of the body, clearly indicated by the words “ siorvivors of them.” Before entering upon the authorities which we think sustain us in construing this to be an executory devise, we will give certain rules to guide us, viz: The construction of the will is to be made on the entire testament, and not merely on disjointed parts of it, and consequently all its parts are to be construed with reference to each other.

Hence general words in one part of the will may be restrained in cases where it can be collected from any other part of the wTill that the testator did not mean to use them in their general sense.—2 Williams Ex’rs, 927; Douglas, 327. Which was done in Merritt and wife vs. Brantly et al., 8 Florida, 229. See opinion of Chief Justice. See also other cases cited.

In the English Court of Chancery, decided as late as 1853, (see 21 volume English Law and Equity Reports, page 369,) the Yice Chancellor says: “Words importing a gift to issue, or a gift over on failure of issue, when applied ■ in a will to personal estate, receive a different construction from that which they would receive if applied to real estate. This difference of construction, well established from the case of Forth vs. Chapman, 1 P. Wms., 664, has qualified the general rule that words which, if applied to real estate, would give an estate tail, when applied to per■sonalty give the absolute interest.

But the distinctions arising from this qualification of the general rule have, in some of the reported cases, unfortunately been overlooked. 'The reverse of this qualification of the general rule .is that the operation of law, independently of express direction, makes real estate descendible, but makes personal estate distributable. The qualification of these rules has therefore been made in order to prevent the intention of testators from being defeated.

A testator who gave personal estate to one for life and then to his issue, but if the tenant for life should die without issue, then to another, would, but for this qualification of the general rule, be held to give, not a life interest, but the absolute property to the person whom he described as tenant for life, and the issue, express objects of his bounty, would take nothing by gift from him. The principle of the qualification was to prevent the intention of the testator from being defeated. In a deed, the word ‘issue’ is a word of purchase.

In a will, it is not ex vi teo^niivi to be construed as a word of -limitation, but is, generally speaking, to he construed as a word of purchase or Unrdtation, as may best suit the intention of the testator.'1'1 So in a will in the United States, where estates tail are abolished, the words “heirs of the body,” when found in such -a connection, whether the property willed is personal or real estate, or both, as to lead to the belief the testator meant to confine the failure of issue to a fixed time, the devise must be held ¡good as an executory devise.

Having laid down these general rules, we proceed to the ■'authorities. In Hughes vs. Sayer, 1 P. Wms., 584, there was a devise of personal estate, and the surplus of it was given to two nepliews, and upon either dying without children, then to the-survivor. The Master of the Rolls held the devise over good for the devise must be taken to mean children living at the death of the party, and not a general failure of issue, because the immediate limitation over was to the survivor. In Porter vs. Bradley and others, 3 T.

R., 143, the Court held, that “If lands be devised to A, his heirs and assigns forever, and if he die, lea/oi/ng no issue behind him, then over, the limitation over is good by way of executory devise.” Lord Kenyon, Oh. J., in deciding this case, says: “If indeed only the first words, ‘leaving no issue,’ had been used,, they, according to the opinion of Lord Macclesfield, in Forth vs. Chapman, must be restrained to leaving issue at the time of his death.

And there are even additional words in this case, ‘leaving no issue behi/icl him,’ winch necessarily import that the testator meant at the ‘time of his son’s, death.’ Therefore I have not the least doubt but that this is a good executory devise, to- take place within the time allowed by law, which is borrowed by analogy from legal formal limitations, namely for a life or lives in being.” In Roe ex dem. vs. Jeffrey, 1 Term. Rep. 589, the Court of King’s Bench held that “ under a devise to T. F. and heirs forever, and in case he should depart this life cmd lea/oe no issue, then to,E.

M. and S., or the survi/oor or survivors of' them, share and share alike, the devise is a good executory devise.” In Atkinson vs. Hutchinson, 3 P. Wms., 261, the Lord Chancellor says: “ The dying without issue being confined to a life, makes the limitation over good by way of executory devise.” In a case decided in the English Court of Chancery as late-as 1832, (see Ranelagh vs.

Ranelagh, 2 Mylne & Keene, 441,) the words of the will were: “ In case of the demise of am/y of the abovepci/rties without legitimate issue, thei/r, his or her proportions to be divided equally amongst the survivorsHeld,, “tliat the presumption prima facia is that the testator had not in his contemplation an indefinite failure of issue.” The Master of the Nolls says: Although the word “survivors” has been sometimes construed as synonymous with “ others,” where the context required it, that .is by no means its natural and ordinary, far less its necessary import.

The word “ survivors” must be referred, not to the time of the testator’s death, but to the period, of distribution. The word “ issue,” as it occurs in this codicil, is synonymous with “ children.” The words of the will in North vs. Chapman, 1 P.

Wms., 664, were: “ And if either of his nephews, William or Walter, should depart this Ufe, and lea/oe no issue of their respeeti/oe bodies, then he gave the said premises to the daughter of his brother William, Jane, and the children of his sister, Sibley Price,” upon which the question arose whether the limitation over of the leasehold premises to the children of the devisor’s brother and sister was void as too remote.

Chancellor Parker said: If I devise a term to II, and if 31 die without leaving issue, remainder over, in the vulgar and natural sense, this must be intended if II died without leaving issue at his death, and then the devise over is good; that the word “ die” being the last antecedent, the words “ without leaving issue” must refer to that. Besides, the testator, who is mops ooncilm, will, under such circumstances, be supposed to speak in the vulgar, common and natural, not in the legal sense. The Court held this a good limitation to C, if A or B left no issue at their death.

In the will under consideration in the case of Glover vs.

Monckton, 3 Bing., 13, there was a devise of real and personal estates, in the first instance for the benefit of the son and daughter of the testator, until they attained twenty-one, or the daughter married, and then to raise £5,000 for her, and then to his son, his heirs, executors, administrators and assigns forever, according to the respective nature of the estates; but as to liis real estate, iu case his son should not live to attain twenty-one, and his daughter should be living at his decease, or in case his son should live to attain such age, and should afterwards die without lawful issue, then to his daughter for life, &c.

The Court of Common Pleas certified to the Master of the Nolls that in their opinion the son took an estate in fee in the real estate, with an executory devise over in the event of his dying without issue living at his death. Mr. Jarman, in his Treatise on Wills, says with reference to the principle in Glover vs.

Monckton: The same principle probably would be considered as extending to any 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.”) The case of Doe ex dem. Johnson vs. Johnson, decided in the Court of Exchequer in 1852, (see 16 English Law and Equity Neports, page 552,) is another case in which “ dying without lawful issue” was held a definite failure of issue.

Having noticed the English cases we will now turn to American decisions on this subject. The early cases in Virginia made a difference in the restriction of limitation by superadded words between real and personal estate, and in the case of Royall vs. Eppes, 2 Mumf., 479, held the word in respect to a devise over of personal property, viz., negroes, a special word, that would justify the adoption of the restrictive construction. In Dunn and Wife vs. Bray, 1 Call, 294, the devise was of slaves and real estate to W and his heirs forever; but if he die and leave no issue, then to C.

This limitation to C, so far as slaves were included, was held good as an executory devise, and not too remote. The word then was construed to operate as a definite failure. The Court also held in this case that in order to annex slaves to lands, it was necessary that co-extensvue estates should be given in both. The next ease was Seldon vs. King, 2 Call, 61, in which there was a divided Court, but the majority defined out of the case before them what shall be construed an estate tail and not an executory devise.

The testator devised that if Ms wife be with child, and the said child Woes and prove a male child, and lives to twenty-one years of age, a house shall be built, &c., and after the decease of his mother, then he gives him and the heirs of his body all his lands, houses and appurtenances, both real and personal, forever; but if the child proves a female, and lives till twenty-one or marriage, she shall have one-half his personal estate and all. his lands to her and the heirs of her body forever.

But if the said child should die, then he gives to his wife and her heirs forever all his lands, slaves, stocks of cattle, &c., and appoints her and her father executors of lxis will. The child proved to be a daughter. Held, that on the birth of the child she had a vested remcdnder in tail, with remainder in fee to testator’s wife.

Pendleton, President, differed with the majority of the Court as to the intention of the testator, and thought it an executory devise of the fee to the wife upon the contingency of the son’s dying without issue under age, or a daughter dying under age unmarried, and which he says he conscientiously believed was his intention. The case of Higgenbotham vs.

Racker, 2 Call, 265, was next, and this case was not a will, but deed of gift, in which A makes a gift of slaves to his daughter and the hews of her body, and, in case she died without issue — that is children of her body — the said slaves to return to the grantor: Held this limitation not too remote, and therefore is good. In North Carolina, in the case of Garland vs. Watt, 4 Iredell’s Law Rep., page 287, a testator, having several children, devised to his two sons, W. W. and H. W., a tract of land, to them and their heirs forever.

In a subsequent ‘clause, after many previous clevises, lie clevises as follows: l“I will, tliat if any of my children die without issue, leaving a wife or husband, it is my will such wife or husband shall be entitled to one-half of the property, the other half to be equally divided between my other children or their heirs.” Held, that the contingent limitations over were good, and therefore that ~W. W. and B. W. could not convey an absolute ancl unconditioned estate in fee simple free from these limitations.

This case is very similar to the one under consideration, ancl, among other things, sustains us wherein we say that neither Joseph ~W. Buss, Mary E. Buss or Margaret B. Buss could convey the clevises to them until the contintingency happened, to wit: the death of one-of them; that their estate was entangled for one life. The case of Threadgill and others vs. Ingraim, 1 Iredell, 577, is another case in point.

The restricting clause of the will reads as follows: “Ancl if either of my children die 'without heirs lawfully begotten, then his or her part to be equally divided between my surviving children ancl their heirs forever.” Held the limitation over in the will was not too remote. Zollicoffer vs. Zollicoffer, Devereux & Battle’s Law Reports, vol. 4, page 438, was decided, in 1839.

In the will before the Court in that case, a testator devised a certain tract of land to his oldest son, and the balance of his lands to his widow, all his sons and his daughters, ancl in a subsequent clause directed as follows: “At the death of my said wife, all the land and negroes that may fall to her shall return to J. Z., (one of his sons,) and in case of the death of either of my aforenamed children without a lawful heir, begotten of his or her body, that then his or her part shall be equally divided among the survivors.” It was held, that upon the death of J.

Z. without children subsequent to the death of the widow, all the lands which he had acquired .under his -father’s will — both that part which was given to him immediately and that which was limited to him -after the death of his mother' — -went over to his surviving brothers and sisters, and that the Tmnitation roas not too remote. Ruffin, Chief Justice, in delivering the opinion of the Court, says: “We do not, indeed, recollect that any will lias been before the Court in which real estate was given over to a * SM'woor'1 upon the death of the first taker without issue or heir of the body.

But, although there may have been no direct determination as to the effect of that jthrase, we have a principle established, by adjudication upon cogent reasoning, which covers this case and sustains the limitation.” The case of Jones vs. Speight, 1 Car.

Law Rep., 544, is approved, in which it was held that a devise over of land upon the death of the first taker “ without homing issue” was good. “It was so held,” says Chief Justice Ruffin, “because the reason for taking those words in an artificial and technical sense in regard to land did not exist here, since the abolition of entails, more than in regard to chattels. Therefore, in a devise of laud, we must receive them in their natural sense, as they had before been received, in both countries, in personal becjuests.” The case of Brantly et al. vs.

Whitaker, 5 Iredell’s Law, 225, being cited by counsel for complainant, we will comment uj>on it when we take up that side of the question. < It is sufficient to state here, that it fully sustains the rules laid down by the Court in determining this to be an executory devise. In South Carolina, the leading case, Keating and wife vs.

Reynolds, 1 Bay, 79, was as follows: A having two daughters, B and C, devises to each of them and to the hews of thew body forever certain personal chattels, but if they, the said B and C, should ciñe without homing a lawful heir of their body to lime, then he devised the said chattels to be “ equally divided to the survivors.” B marries and has issue now alive; C likewise marries and has a child born alive, but which dies a few days after its birth, and, after its death, C, the mother, dies without .leaving any issue alive at the time of her death.

The Court held that the limitation over to 13 was not a limitation over after cm indefinite faihvre of issue, and therefore good. As we think this case strongly resembles the Russ will under consideration, we may be pardoned for extracting some of the opinion of the Court. The Court say: “ The will gives the negroes in question to Martha Thorpe, but upon the contingency of her leaving no ehild/ren, (for the words ‘heirs of the body to live’ mean ehild/ren, if they mean anything,) then to the survwor. This term ‘ survivor ’ is a term of much import here.

It carries with it the idea of the longest liver, provided the other sister should leave no children behind her — that is, none living at the time of her death; for, if she had left a child, that child, or those claiming under it, must have taken. But, as there was none living, then she who should survive was the person to take.

This, then, is not a limitation depending upon a remote, but a very limited, contingency — one which was to happen in a very short period during the life of a person then living, .and cannot be called a limitation after an indefinite fadlw-e of issue to a person not then in esse; and the limitation over upon the contingency of her leaving no children, to the survivor, is a sufficient description of the person he meant should take, so as to bring this case within the rules of law in support of the limitation.” In Jones vs.

Price, 3 Dess., 165, it was held, that where the intention of the testator appears to be plain that the devise over should take effect after dying without issue of the first devisee, the Court will give effect to such intention and not readily construe the limitation too remote. In Clifton vs. Exrs. of Haig, 4 Dess., 330, a testator devised the residue of his real and personal estate to his daughter and the issue of her body lawfully begotten forever; but, in case of tiie death or failure of issue of his son and daughter, then and in either of these cases, he devised and bequeathed the same to his nephews, S.

W. and T. B., to be equally divided between them. Held, the limitations over are not too remote. In .the case of Badler vs. Harden, 6 Richardson’s Equity Reports, 147, the Court held as above. In Alabama, Pennsylvania and Georgia the same law is ■laid down. In Mississippi, (see 12 Smedes & Marshall, 231, Rucker et al. vs. Lambdin et al.,) the words of the will were: “I wish the property which I bequeath and bestow on Sarah A.

Treely to be given and secured to herself and her bodily heirs, should she marry, and at her death, should she have no issue, it is to go to her brothers and sisters.” Held, that this was not an estate tail, but an executory devise. The adjudications in New York arising upon devises of this kind were examined by the Supreme Court of the United States in Jackson vs. Chew, 12 Wheaton, 153, and found settled by a uniform series of adjudications that the limitation over was good as an executory devise. It is true Chancellor Kent differed from the majority of the Court in Anderson vs.

Jackson, 16 Johnson. 397, and made a reference to Fosdick vs. Cornell, 1 Johnson, 440, and Jackson vs. Blanshaw, 3 Johnson, 289, which he says he decided or were decided on mistaken grounds, yet he did not succeed in convincing the Court that they were thus decided. On the •contrary, they decided that the provisions of the will, which were, “It is my will that if either of my said sons should depart this life without lawful issue, his share or part shall go to the swrvivorf was a good limitation over in-fee by way •of executory devise to the survivor on failure of issue living ¡at the death of either of the sons.

And, in the case of Lion vs. Burtiss, 20 Johnson, 483, decided four years after .the case of Anderson vs. Jackson, the Court held the same thing, notwithstanding the recantation of Chancellor Kent. The opinion of the Court in this last case was delivered by Spencer, C. J., and was unanimous — in which, Mr.

Spencer says: “Imust be allowed to say that subsequent reflection has eonfl/rmed my conviction of the sound/ness of the decision of the Court of Errors.” We will pass over the early eases in New York in which Lord Kenyon is said by Chancellor Kent to have been the blind guide that misled them, and rely upon the case of Moffitt vs. Strong, 10 Johnson, 16.

This case was not repudiated by Chancellor Kent, but one in which he says he considered fully and decided “after great deliberation.” The words of the will were, “If any of the sons shtoidd die without lawful issue, then his yrn't to go to the survivors.” Says Kent, C.

J., in delivering the opinion of the Court: “ The intent of the testator, according to the settled legal construction of terms, appears then in this case to have been to provide for the surviving sons on the contingency of either of the sons dying leaving no issue at his death, and as this intention is consistent with the rules of law, the limitation over is good by way of executory devise.” The rest of the Court concurred in the opinion. In Connecticut, see Morgan vs.

Morgan, 5 Day’s Reports,page 517, by will in that case, A devised his real estate to-his sons, B, C, D and E, their heirs and assigns forever, and added a clause to liis will, that in case either of his sons-should “ die without children, his brothers should have his-part in equal proportion.” Held, that the limitation over was good by way of executory devise.

Held, also, that by the words “die without children” is intended dying withhold children living at the death of the first devisee.” There 3vere nine Judges who sat in the Supreme Court of.‘ Errors on the adjudication of this case, and were unanimous-in their decisions. Edmund, J., in delivering the opinion of the Court, says: “ The time when the contingency corntemplated was to take effect, if ever, was on the death of one of the four brothers, and not an indefinite period.

This is apparent from the words of the disposition itself, ‘And also my will is that if my sons should either of them die without children, that his brothers shall home his

part in equal proportion.’’ Who, then, is to take on the happening of the contingency, that is, on dying without children % The words of the clause give the answer, ‘his brothers shall have his

part in equal portions’ — brothers then in being, confining the operation of this disposition to the time of the death of one son, living the others, in direct opposition to the idea of waiting the event of an indefinite failure of issue.” In Hart vs. Thompson, administrator, in 3 B. Munroe’s Kentucky Reports, page 487, the will was a devise to all the testator’s children tobe equally divided; 11 but should either die without hews of their body, lawfully begotten, that their pa/rt so allotted and given to them as aforesaid to be equally divided amongst my other ehildren then liming.'” The Court say: “According to the strictest rule of English

interpretation, we cannot regard the devise in question as a limitation over after an indefinite failure of issue, which would constitute it an estate tail, but as a limitation over upon a fee, which vests the estate in the surviving children? upon the death of either without issue living at his or her death, and is good as an executory devise.” On the part of the complainant it is contended the testator intended a limitation over after an indefinite failure of issue, and therefore an estate tail; that there are no expressions or circumstances in the will, which, in giving them their legal import, would show the testator looked to the death of any one of them as the definite period at which the contingency should happen.

We have examined the numerous authorities cited by the able counsel for complainant and well considered the arguments urged in applying them to this case and the conclusions urged, and while there .are contradictory opinions which we shall not attempt to reconcile, tljpy all agree that if there is anything in the will to authorise the change of the rule of legal construction of words, that then the Court should do so, to carry out the intention of the testator.

As a condensed brief, with the authorities of counsel for complainant, will be published with the report of this case, we will only mention a few leading ones. The case of Brantly vs. Whitaker, 5 Iredell, 225, was as follows: A, by will, devised land to his two daughters, II B and S B to them and their heirs, “ and if they should die -without an heir, then to his wife, B. One daughter died without issue. Held, that the limitation over was too remote.

But the Court say: “ If the limitation over had vested on the event that the two daughters died without children, it would have been a good limitation, as that event must necessarily have been known during the life or lives of persons in being or twenty-one years thereafter. But the word hew, used by the testator, cannot be construed children, as there is nothing in the will to authorize us to change its technical signification.” It will be observed that the Court intended that if there was anything in the will which would authorize the change of its technical signification, it would be done.

In the case at bar we think there are expressions .and circumstances in the will which authorize us to change the technical signification of the words “ heirs of the body” to children, and fix the period of failure of issue to the time of the death.

Whether or not the will authorizes such a change is the turning point in this case, as it is in all others where conflicting opinions have been given — each case depending upon the peculiar expressions and entire provisions of the will — and so long as the intention of the testator is thus arrived at, there will be apparent conflicting opinions, In the case of Allen and Wife vs.

White, Administrator of Rufus Mills, 16 Alabama, 181, the peculiar expression in that will was, “ 1)6 hept for the mawitamamce of my son, his famil/y amd lawful children, which he now has or ma/y hereafter home and the swvivor of them.” The wife oí the son claimed the slaves as survivor.

The Court lays down the rule of executory devise as we have and goes on to say: “ Now, if the words ‘ siorvivor of them’ create 'a limitation good as an executory devise, the property may be tied up and rendered inalienable for more than fifty years after the death of all the parties in life who took an interest under the bequest, and in the event that Eufus had left two or more children living at his death it might have been more than fifty years before the absolute title would have vested in the one who survived all.

The limitation,. therefore, is too remote, as this estate was entangled for more than one life, and of course it is not within the rule of' an executory devise.” In the case of ’Williamson vs. Daniel, 15 Wheaton, 568, says Chief Justice Marshall, in delivering the opinion of the Court, “ There a/re no words im the will which restrain the dying without issue to the time of the death of the legatee..

The remainder over is to take effect whenever either of the immediate legatees should die without a lawful heir of his or her body.” Did the Euss will, which we are construing, rest entirely upon the 8th clause, there would be no doubt of the entailment; but, the 14th clause being annexed, we think there are swpemdded words which bring it within the rule of executory devise and entangles the estate ■ only for the life of one in being. The case of Bells vs.

Gillespie, 5 Randolph, 275, is contradictory to the view we take of the word “survivor.” In that case, there was a divided Court, Judge Coalter thinking the words “surviving brothers,” in that case, meant at the tvme of his death, and therefore the precise time for failure of issue was fixed, while Judges Cabell, Carr and Green thought, by the use of those words, he looked to an indefinite failure of issue in the first taker' and too remote. Snyder vs. Snyder, 2 Munford, 263, is a case relied upon by counsel for complainant.

It will be seen, upon examination of that case, that the question of intention of the testator was not touched upon at "all, but the case was decided upon the strict technical rules, - The words were not construed within any rule created for the purpose of supporting the intention of the testator, and so it will be found on examining most of the cases conflicting with the decisions in New York. It is conceded that the construction of this will is a mere ■question of intention.

Lord Macclesfield declared-that this technical rule of construing a dying without issue to import a definite failure of issue was created for the purpose of supporting the intention of the testator.—4 Kent, 285. We have here, then, a precedent for construing “survivor” as used in this clause of the will to import a definite failure of issue restricting the 8th clause for the purpose of ■supporting the intention of the testator. To return to the will of Russ.

"We have already seen it contains the essential quality to support an executory devise, if the expressions definitively limit the time when the contingency should happen, to wit: at the death of either of the children of testator. The question, then, is, are there expressions and circumstances of the will from which it can be collected that the words “without heirs of the body,” and “heirs of the body,” are used by the testator in a more confined sense. First. It is evidenced by the will, that the legatees were to take in their character of survwors. Secondly.

The words of the 14th clause, taken as a whole, confine the contingency on which the limitation rests to heirs then in being. The contingency was to take effect (if ever) at the death of one of the legatees. If they had to wait for an indefinite failure of heirs, what was the use of providing for a division of the estate-? Again, as brother or sister, they might inherit under an indefinite failure of issue. If the testator intended that, why make provision for that which might, in due course of law, happen ? Thirdly. The testator, in the 11th

article of the will, makes provision for the com/plcmia/nt, she being the daughter of the deceased son. By this he sxfbstituted her for the deceased son, and makes provision that if she dies without children, then her property is to go to Joseph "W., Mary E. and Margaret B. Buss, and secures it from her husband, if she has any, but makes no provision for what she might receive as heir of either Jos. "W"., Mary E. or Margaret B., which he would have done had he contemplated she might by any contingency inherit any portion of the property given either of them. Ilis grand-daughter was then in esse.

He had reason to suppose she would survive her uncle and aunts."Were they or either of them to die, if he intended her to inherit, he would naturally have made provision for it in the eleventh item of the will. If he had intended to put his grand-daughter as “survivor” on equal footing as the representative of her father with his other children, he would have included her by name in the 14th item of the will.

In Crugar vs. ex’rs of Hayward, 2 Dess., 114, the Court say: “AH'cases on the construction of wills depend on the particular penning of the wills themselves and the state of families to which they relate.” It is urged, that in some of the items of this will, where the bequest and devise is to Jos. W. Russ, Mary E. or Margaret B., it is to them their heirs and assigns, and it is asked, what becomes of the idea that this will contains an executory devise ? The answer is that the latter clause will prevail.—Finly vs. King, 3 Peters, 366. It is contended, on the authority of Barlow vs.

Salter, 17 Vesey, Jr., 479, tliat tlie word “survivor” should be understood as meaning only others. It has undoubtedly been so construed, but it will be seen that Courts have construed it to fix the period of failure of issue. The construction of this, like other words, is governed by the expressions or circumstances contained in the will. It is insisted, that as the testator, by the use of the words “heirs of her body,” in the 8th item of the will, created an estate tail in the first taker, that therefore we cannot superadd the words in the 14th item to show that he did not mean those words in their legal sense.

If this is so, what becomes of that fundamental rule in the construction of wills, to wit: that the mient of the testator must govern the oonstrnctionf It is by adding the last clause that we ascertain whether the testator meant the words “heirs of the body” in their legal sense, or whether he has used improper words, which he intended to use in another sense, i. e. ehild/ren. We think the testator evidently meant to say “her children.” The words “heirs of the body” have been construed children.—3 Atk., 781; 1 Ba. & Ald., 713; 1 Bay, 85; 2 P. Wms., 342; 1 P. Wms., 229, 230; 20 Johnson, 483.

It is contended, that the case of Watts, adm’r, vs. Clardy, 2 Florida, 369, settles the question in dispute in this cause. We do not intend any conflict with that case. That was a deed in which the word survivor is inserted, and the rule of construction of a deed is much more strict ;• besides, there are no such expressions or circumstance in the context of the deed or will in that case, and superadded words relating to the grantee, as there are in this case to the legatee.

We are therefore satisfied that, according to the settled legal construction of terms, evinced by weight of authorities, the testator (Puss) intended in this will to provide for his surviving children on the contingency of either of them dying and leaving’no issue at the death of the one so dying, and as this intention is consistent witli the rules of law, the limitation over is good by way of executory devise. It is therefore ordered, adjudged and decreed, that the decree of the Chancellor in the Court below overruling said demurrer be reversed, and said bill be dismissed.

But, under the circumstances of this case, the bill being for a construction of a will in which both parties were interested, it is further ordered, adjudged and decreed that the costs, including those in the Court below as well as in this Court, be paid by the administrator of the estate of Margaret B. Buss, deceased, out of the assets of said estate.