Daly's Leasee v. James

ERROR to the Circuit Court of Pennsylvania. This was an action of ejectment, brought in the Court below, by the plaintiffs in error, to recover the possession of a messuage and lot in the city of Philadelphia. The special verdict in the case stated, that on the 8th of August, 1768, John Bleakley, of Philadelphia, being then in London, made and duly executed his last will, as follows: 'In the name of God, amen. I, John Bleakley, of Philadelphia, esquire, now in London, and shortly bound to Philadelphia, being in perfect health, and of sound and disposing mind, memory, and understanding, and considering the certainty of death, and the uncertainty of the time thereof, do therefore make and declare this my last will and testament, in manner following, that is to say: First, and principally, I commend my soul to God, and my body to the earth or sea, as he shall please to order; and as for and concerning my worldly estate, I give, devise, and bequeath the same in manner following, that is to say: First, I will and desire that all my just debts and funeral expenses, (if any,) be fully paid and satisfied, as soon as conveniently may be after my decease. Also, I give and bequeath to my brother, David Bleakley, living in the north of Ireland, the sum of ten pounds sterling. Also, I give and bequeath to my brother, William Bleakley, living near Dungannon, the sum of ten pounds sterling. Also, I give and bequeath to my sister, Margaret Harkness, of Dungannon, the sum of one hundred pounds sterling. Also, I give and bequeath to my sister, Sarah, Boyle, wife of the Rev. Mr. Boyle, the sum of ten pounds sterling. Also, I give and bequeath to my cousin, Archibald Young, of Philadelphia, an annuity of thirty pounds, Pennsylvania money, to be paid to him out of the rents and profits of my real estate, on the 25th day of March, in every year, during the joint lives of him, the said Archibald Young, and my son, John Bleakley, or his heirs lawfully begotten. But, in case of the decease of my said son, without issue lawfully begotten as aforesaid, in the lifetime of the said Archibald Young, then the said annuity is to cease; and in lieu thereof, I give and bequeath unto the said Archibald Young, and his assigns, the sum of four hundred pounds sterling, payable out of the proceeds of my real estate, when the same is sold and disposed of, according to the intention of this my will, herein after mentioned, and before any dividend is made of the proceeds of my said estate. And this legacy or bequest is made to my said cousin, Archibald Young, not only for the natural affection I have and bear to him as a relation, but also as a full compensation for the services he has already rendered me, and in lieu of his commissions for the trouble he may hereafter have in the execution of this my will. All the rest and residue of my estate, real and personal, of what nature, kind or quality the same may be or consist, and herein before not particularly disposed of, I give, devise, and bequeath to my son, John Bleakley, and his heirs lawfully begotten; and in case of the decease of my said son, without such issue, then I do direct and order my said cousin, Archibald Young, his executors or administrators, to sell and dispose of my real estate, within two years after the decease of my said son, John Bleakley, to the best advantage. And I do hereby give and bequeath the proceeds thereof to my said brothers, David Bleakley and William Bleakley, and my said sisters, Margaret Harkness and Sarah Boyle, and their heirs for ever, or such of them as shall be living at the decease of my said son, to be divided between them in equal proportions, share and share alike, after deducting out of such proceeds the sum of 400 pounds sterling, herein before given and bequeathed to the said Archibald Young, immediately on the decease of my said son without issue in lieu of the annuity above mentioned. And in case my said son should die before he attains the age of twenty-one years, without issue lawfully begotten, as aforesaid, then my will and mind is, that the remainder of my personal estate, hereby intended for my said son at his own disposal, if he should live to attain the age of twenty-one years, shall go to, and be divided amongst my said brothers and sisters, with the proceeds of my real estate, as is herein before directed to be divided. And I do hereby nominate and appoint the said Archibald Young, and my said son, John Bleakley, executors of this my will, hereby revoking, and making void, all former wills, codicils, and bequests, by me, at any time or times heretofore made, and do ordain this will to be as and for my last will and testament. In witness whereof,' &c.

The testator died in the month of January, 1769. His brothers and sisters all died, leaving children, (who are still alive,) at or about the following periods, viz. Sarah Boyle between the years 1760 and 1770; William in the year 1775; David in the year 1790, and Margaret Harkness in the year 1794. The children were of full age, or nearly so, when the above will was made, and were personally known to the testator. Archibald Young died in May, 1782, having duly made and executed his last will and testament, whereby he appointed Robert Correy his executor, who, on the 24th of April, 1797, made his last will and testament, and thereof appointed Eleanor Curry, and James Boyd, the executors, and died in June, 1802.

John Bleakley, the son, died on the 3d of September, 1802, without issue, and of full age, having previously executed his last will and testament, whereof he appointed J. P. Norris his executor, and thereby directed his real and personal estate to be sold, and the proceeds, after paying certain legacies, to be divided among certain of his relations. On the 25th of May, 1803, the said Norris, for a valuable consideration, sold and conveyed the premises in dispute to W. Folwell, who, on the 21st of April, 1810, conveyed the same for a valuable consideration to the defendant. On the 1st of February, 1805, Eleanor Curry, and James Boyd, the executors of R. Correy, (who was the executor of A. Young,) by deed, bargained and sold the premises in question to James Smith, which deed was afterwards cancelled; and subsequently, on the 27th of March, 1820, they sold and conveyed the said premises to the lessor of the plaintiff, who, at the time of his purchase, had notice of the death of the brothers and sisters of John Bleakley, in the lifetime of his son.

Upon this special verdict, judgment having been rendered, pro forma, for the defendant, in the Court below, the cause was brought by writ of error to this Court. Feb. 25th.

Mr. Wheaton, for the plaintiff, stated, that the will of J. Bleakley, senior, was, in effect, a devise of an estate tail to the testator's son, with a remainder over to his executor, A. Young, &c. in trust to sell, in case of the son's dying without issue, and the proceeds to be distributed equally among his brothers and sisters, and their heirs, (as a designatio personce,) or such of them as should be living at the son's death. But the first difficulty in the cause was, a determination of the Supreme Court of Pennsylvania, upon an ejectment brought in that Court under the same will. The State Court there held, that the word heirs was a word of limitation; and none of the brothers and sisters being alive at the death of the son, J. Bleakley, junior, the object of the power to sell had failed; their issue were not entitled, and a sale by the executors of Young conveyed no title; although it was admitted, that the power might be executed by Young's executors, if the object of sale had continued.

This decision was that of two Judges only, and could hardly be considered as a binding authority even in the State Courts, whatever respect might be felt for the great abilities of the learned Judges by whom it was pronounced. This is not one of those cases where the decisions of the State Courts, on questions of local law, establish rules of property, which this Court will not disturb; but it is a mere question of the interpretation of a will, depending entirely on the rules of the common law.

There are two questions for consideration: (1.) Whether the power, or trust, to sell, now exists? and, (2.) How the distribution of the proceeds of the sale is to be made?

The second question is certainly subordinate to the first. For if there be an absolute power to sell, (as will be contended,) then the disposition of the fund is a matter to be determined between the trustees, and those who may claim it in a Court of equity; but it cannot interfere with the paramount authority to sell. But it has been supposed, that if the object for creating the fund no longer exists, the power is gone with it. The second question, therefore, will be considered first; not meaning, however, to admit, that the one is a corollary from the other. Reasons may have existed to induce the testator to desire a sale at all events; and the fact of its not being in express terms restricted to any particular event, goes to prove, that it was to be made under all circumstances, except only the son's having issue.

Such is the necessary ambiguity of all human language, that particular words used in a will, or any other writing, must be taken in their most usual technical sense, or not, according to other considerations. One of the most important of these considerations, is the design of the writer, as manifested by the general scope of the writing itself. What, then, was the intention of the testator, and who were the objects of his bounty, as manifested by the will itself? We contend, that he intended to devise all his property, and to retain it in his own family. The first and great rule in the exposition of wills, is the intention of the testator expressed, which, if consistent with the rules of law, shall prevail. To this, all other rules are but subsidiary or suppletory. Supposing this to be the design of the testator, the means are appropriate to the end. He gives to his cousin, A. Young, a small pecuniary annuity, burthened with onerous duties; and to his son, the mere usufruct of the residue, unless he should have children; in which event only the restraint on alienation is removed.

The first great object of the testator's bounty, then, was his son. The second class of objects was his brothers and sisters; and the third class was the children of his brothers and sisters.

Had the brothers and sisters survived the son, they would unquestionably have succeeded, by the executory devise, on the occurrence of the sole contingency, viz. the death of the son, without issue lawfully begotten. Did the devise extend beyond the brothers and sisters? It is clear that it was not, in terms, restricted to the brothers and sisters personally: the terms of it contemplate something more. The words are, 'to my said brothers, &c. and my said sisters, & c. and their heirs for ever, or such of them as shall be living at the decease of my said son, to be divided between them in equal proportions, share and share alike.' Whatever may be the technical meaning of the word heirs, &c. the use of them certainly shows that the testator looked beyond the brothers and sisters. The opposite construction rejects words which the testator has thought fit to use; and it is a well established principle, that no words in a will shall be rejected that can bear any construction. The opposite argument must also take for granted, that the words, 'such of them as shall be living,' &c. refer to brothers and sisters merely. But this supposition is contradicted, both by fair grammatical construction, and the general scope of the will. Fiat relatio proximus antecedenti: the word them is in immediate juxtaposition with the word 'heirs.' The whole scope and object of the will, is to provide for the family; and to restrict this devise to the brothers and sisters, is to defeat this object. The intention of the testator was evidently to dispose of his property, not to leave it floating and precarious. The death of his brothers and sisters was naturally to have been expected; but of their children, some of them would probably be alive, should the son die without issue. It was not for the purpose of giving a fee simple that the word heirs was introduced; for it was personal property which was devised, and which would pass absolutely without words of inheritance. The children of his brothers and sisters were personally well known and dear to him. They were, therefore, the natural objects of his bounty; and this extrinsic circumstance may aid in the construction.

But what is the meaning of the word heirs,' as coupled with the words brothers and sisters?' It may mean, (1.) HEIRS AT LAW; in which case, whilst it bears the most technical meaning, it will consist with a liberal and rational interpretation. The proceeds go to the brothers, &c. If any of them are dead, to the heir at law of the deceased, standing in loco parentis, and the surviving brothers, &c. If all are dead, leaving children, to the heirs at law of all. If all are dead, and some have left no children, and, therefore, no heirs at law, except the children of the others, then to the surviving heirs at law. (2.) Or it may mean CHILDREN. It is thus used in popular discourse, and writings not technical: 'If children, then heirs,' says St. Paul. The testator himself uses it in this sense, in at least one other part of his will. He says, 'I give and bequeath to my son, John Bleakley, and his heirs lawfully begotten; and in case of his decease without such issue,' &c. And this use of the word is perfectly legal. Thus, in Jones v. Morgan: 'It is first necessary to determine upon the whole of the will, whether, by the word heirs, the testator meant that succession of persons so denominated by the law. If that appear to be the intention, the rule in Shelly's case must, in all events, take place. But when the word is used in any other sense, the rule is not applicable, and the limitation must have its effect, as if proper words had been made use of.' So, in Bamfield v. Popham, 'It was agreed, that the word heirs was not always, and of necessity, to be intended as a word of limitation. Thus, in 2 Ventr. 311., a devise to A., for life, remainder to the heirs male of the body of A., now living: these were words of purchase. So, in Raym. 279. Lisle v. Gray, 1 Jones, 114., lands were limited to A. for life, &c. the words heirs male, were understood to signify sons.' And in Darbison v. Beaumont: 'Devise to the heirs male of J. S., begotten. J. S. having a son, and the testator taking notice that J. S. was then living, a sufficient description of testator's meaning, and such son shall take, though (strictly speaking) he is not heir.' 'As to the objection, that, Mr. Long being living, there could not, in a legal sense, be any heir male, &c. it was answered, that the intent of the testator, by the devise, (which was the only matter in question,) did plainly appear, &c. That the word heir had, in law, several significations: in the strictest, it signified one who had succeeded to a dead ancestor; but in a more general sense, it signified an heir apparent, which supposes the ancestor to be living; and in this latter sense, the word heir is frequently used in statutes, law books, and records.' By way of analogy, it may also be mentioned, that the word issue is frequently taken as a descriptio personae.

The rule in Shelly's case has been frequently broken in upon in favour of last wills. Once fix the intention, and the word heirs may as well be a word of purchase, as a word of limitation. And it may even be taken as a word of purchase in a deed, if such be the intention of the grantor. So, also, in marriage articles. This is not upon the principle, that the rules of property are different in Chancery from what they are at law; that notion was long since completely exploded. But the rule has been still more frequently relaxed in the case of devises, for very obvious reasons. Several attempts have been made, both by Judges and elementary writers, to classify the cases, in which, by an exception to the rule, the word heirs is construed as a word of purchase; but all the exceptions will be found to turn upon the intention of the testator. And when it is said, that this intention must not be contrary to the rules of law, this dictum does not apply to the technical sense of the terms used by the testator. It merely applies to the legality of the object which he wishes to effect. e. g. The testator wishes to create a perpetuity; any words, however untechnical, which import the idea, are sufficient; but the law will not permit a perpetuity to be created at all. This distinction is clearly stated by Lord Keeper Henley. 'It was argued, that if the intent was plain, yet, if the testator had used words which, by the rules of law, imported a different signification, the rule of law, and not the intent, would prevail; but there was no such rule applicable to this case. In case of a will, the intent shall prevail, if not contrary to law; the meaning of which is, if the limitations are such as the law allows; but it does not mean, that the words must be taken in such signification as the law imposed on them. If words, which, in consideration of law, were generally taken as words of limitation, appear in a will to be very plainly intended as words of purchase, they must be considered as such both in Courts of law and equity.'

But, admitting, argumenti gratia, that if the children of the testator's brothers and sisters take in character of heirs, they must take in quality of heirs, i. e. by descent; they may take in this manner consistently with the rules of law. Either it is a contingent executory devise to their parents, or, as it is commonly called, an executory interest; or it is a contingency or possibility coupled with an interest. In the first case, although the devisees die before the contingency happens, their children will take by descent. If it be a contingency or possibility coupled with an interest, they may take in the same manner. It is now the settled text law, that these contingent estates are transmissible to the heirs of the devisee, where such devisee dies before the contingency happens, and if not disposed of before, will vest in such heirs when the contingency happens; though formerly an opinion prevailed, that they could not pass by a will made previous to their vesting.

If it should be objected, that this is a double contingency, which is bad; the answer is, that there is no rule of law which prohibits a limitation on a double contingency, or a contingency on another contingency. A limitation may be good, though made to depend on any number of contingencies, if they be collateral to, or independent of each other, and may all happen within the legal time of limitation. In Routledge v. Dorril, a grandchild took on a limitation dependent on no less than four contingencies.

It is a well established doctrine, that where a class or denomination of heirs, indefinitely, are intended to be embraced, the word heirs is a word of limitation; but where particular or special persons are constituted the stock of a new descent, it operates as a word of purchase. Here the devise is to the brothers and sisters, and such of their heirs as may be living at a particular time. Heirs general, therefore, could not have been meant; but only the heirs of each brother, and of each sister, i. e. the children of each brother and sister. The term is restricted (supposing it to be a devise of the realty) to such as should be heir of such of the brothers and sisters as were dead when J. Bleakley, jun. died without leaving issue. The heirship must be established by the known canons of descent; but when ascertained, the objects defined would still take by purchase. The word heirs is, indeed, a word of limitation, for the purpose of ascertaining who are to take; but after it has performed that office, the objects who are to take are in by purchase, and not by descent. And herein, it is humbly apprehended, consists the radical defect in the argument of the learned Judges of the State Court. If the word heirs necessarily compelled all who take under it, to take in quality of heirs, then the argument, that they must take per stirpes, and not per capita, might have its difficulties. But this word does not operate, exclusively, either as a word of purchase, or of limitation. That it is often a word of purchase has been before shown; and in the common case of a devise 'to A. for life, remainder to the heirs of B. who leaves a daughter, and his wife enseint with a son. On the death of B. the aaughter takes, under the description of heir, by purchase, and she shall not be devested by the subsequent birth of the son.' So, also, in the case of an estate to A. for life, remainder to the right heirs of B., or of an executory devise to the right heirs of A. The canons of descent are referred to for the purpose of ascertaining who are the right heirs; and, after this is ascertained, such persons take by purchase. It does not follow, that because the word heirs is a word of limitation, that the heirs, when ascertained, must take as heirs; for there are many cases where terms of limitation operate only sub modo as such, viz. for the purpose of defining the objects who are to take in quality of purchasers. Thus, if a remainder be limited in gavelkind, or borough English lands, to the right heirs of A., the common law points out the eldest son as the heir, contrary to the custom, which gives the land in the one case to all the sons, and in the other to the youngest son. 'For,' says Mr. Watkins, 'notwithstanding we may thus have recourse to the law of descents to ascertain the persons who are to take, yet, when they are once ascertained, they take as purchasers.' So, if lands be devised to the right heirs of A., who leaves two daughters, they are both his heirs; but they take not as parceners, (for to do this they must take by descent,) but as joint-tenants, or in common, i. e. as purchasers. In general, purchasers take per capita, and those who claim by descent, take per stirpes; but if the intention of the grantor or devisor can be better promoted by purchasers taking per stirpes than per capita, there is no inflexible rule of law to prevent it. In the present case, we hold, that the intention is plain, and that all claiming as heirs of those brothers and sisters would take per stirpers, even though they take by purchase; but whether they take in one way or the other is quite immaterial, provided it be shown, that the brothers and sisters personally were not the sole objects of the testator's bounty, and, consequently, need not survive J. Bleakley, jun.

The same construction has been adopted, respecting personal property, under the statute of distributions, 29 Charles II. c. 3. Where there is a bequest of personalty to the relations or next of kin of A., the statute furnishes the rule; i. e. ascertains who are the persons comprehended within these words; and these persons may take per capita, though if distributed, in such case, under the statute, they would take per stirpes.

That these children are entitled to take, as purchasers, under the word heirs, is manifest, as none can claim by descent, unless the subject of the limitation vests, or might have vested, in the ancestor, qua ancestor. But here no estate, in land, was ever contemplated to vest in the brothers or sisters named, or in either of them. The entire estate, in the land, vested either in Bleakley, jun. or in Young, the executor, &c. and the proceeds of a sale, i. e. personalty only, was to be paid over to such persons as satisfied the description entitled at the time of Bleakley, jun. his death without issue. Under no possible circumstances or view of the case, could these children take in quality of heirs; because nothing ever did or could vest in their parents as ancestors; and the subject itself of the devise was not real property, but money, of which heirship cannot with legal accuracy be predicated. It is, therefore, manifest, that if they take at all, it must be as purchasers, and that the word heirs may be used for the purpose of ascertaining who are embraced within the scope of the testator's bounty; and, having performed that duty, it is functus officio, and ceases to operate as a word of limitation.

The next question in the cause is, whether the power to sell exists in those who have exercised it, and under a sale from whom, the plaintiff claims title?

And this divides itself into two inquiries: (1) Whether there is in any person, now existing, an authority to sell? (2) Whether the event has taken place, which, in the contemplation of the testator, was to occasion its exercise?

1. It is a familiar principle, that no execution of a trust shall fail for want of a trustee. On a total failure, Chancery will appoint one; but if the individual named by the testator is wanting, it devolves on the person who succeeds to the general rights and duties with which it is coupled. Here the direction of the testator himself extends it beyond the first individual named. The trust, as it is created, extends not only to the executors, but to the administrators of A. Young, who may be total strangers. But even if it were not so; the power given to one, will extend by operation and construction of law to his executors, and so on from executor to executor. And, by the local law of Pennsylvania, the distinction between a power to sell, and a devise of the land to be sold, is taken away, and the executors have the same interest in the one case as in the other. The remainder in fee, then, on the death of Bleakley, jun. vested in the executors, &c. for the purpose of sale. The will of the testator was, that it should be sold on the occurrence of that event. It is immaterial for what reason. It is sufficient that it was his will. The direction to sell is mandatory, and not a mere discretionary authority. The time within which it was to be performed is immaterial. Its performance might have been retarded by many accidents.

2. The event has occurred, which, in the contemplation of the testator, was to occasion the exercise of the power to sell. The language of the will, on this point, is unambiguous and clear. 'In case of the decease of my said son without issue, then I do direct and order,' &c. It is made to depend on the single event of his decease without issue. How the proceeds are to be distributed, is another and a distinct question. They are not made dependent upon each other. If the brothers and sisters had all lived, they could not have entered into possession of the real property: they could only have compelled an execution of the trust, by the preliminary measure of a sale.

Mr. Sergeant, contra, stated, that this case had been submitted to the highest Court of Pennsylvania, where it was decided against the title, now in question, so long since as 1809. He admitted, that a verdict and judgment in ejectment were not conclusive, and that a second ejectment might be brought on the same title. But the decision of a competent Court, of the highest resort, solemnly rendered on a question of law, submitted to them by the parties, ought to be decisive of what the law is on that question, as between the parties, and all claiming under them with notice. It would be conclusive on that Court, and on all inferior jurisdictions: and where there is concurrent jurisdiction, the rule is, that the tribunal which first gets possession, has exclusive possession of the cause and of its incidents. Here the question was upon the law of Pennsylvania, as it regarded land in that State: not the statute law, which is written, but the common law, as shown by the decisions of her Courts, and modified by usage and custom, or the peculiar adoption and application of its principles. Had this case been first submitted to the Circuit Court, and brought here by appeal, a decision of the Supreme Court of the State, in another case, in all respects similar, would be of the highest authority. And it is fit that it should be so, for the sake of uniformity in the settlement of the law; or else the peculiar judicial constitution of this country might be productive of the greatest confusion. Suppose the decision of this Court should be different from that of the State Court; it is not a case in which, by the constitution and laws of the Union, this Court has any superiority that would give its decision a binding effect. There would, consequently, be an irreconcilable conflict of decisions. The decision of the Supreme Court of Pennsylvania must, therefore, be regarded as of the highest authority, and ought to be followed, unless flatly absurd and unjust.

But, considering the will, independent of the authority of the decision in the State Court, it is obvious that the testator did not mean to provide for the disposition of his estate, in every event that might happen, except by the residuary clause in favour of his son. If he had said, or had clearly intimated, that he meant in no case to die intestate, so as to let in the heir, this might have been considered as a pervading intention, that would influence the interpretation of the will. But this was not necessary, for the law had provided an heir, in whose favour the affections of the testator would coincide with the provisions of the law. The heir is a favourite of the common law, and is not to be disinherited but by express words, or by necessary implication. That implication can only exist where there is a plain intention not to die intestate. But here the intention was merely to provide for certain persons, whom the testator, for reasons known only to himself, chose to consider as objects of his bounty, in certain events. So far he meant to restrain his son, and no farther. From his having done so, it is impossible to infer an intention to provide for other persons, or for other events, as there might be, in a case where there was a manifest design not to die intestate.

The will must be interpreted by itself, and then it will appear that the testator had in view: (1) His son, to whom he gives a clear estate tail in the realty, and an absolute estate in the personalty, on certain terms. (2) A. Young, to whom he gives an annuity of 30 pounds a year, during the joint lives of himself and the son, or the son's issue: and to whom, in the event of his surviving the son, and the son dying without issue, or the issue failing in his lifetime, he gives 400 pounds in lieu of the annuity, to be paid out of the proceeds of the sale of his estate. A. Young could, then, certainly, take nothing but in the case specified of the son dying without issue, or the issue failing, in the lifetime of Young. It is put in place of the annuity, and, in case of issue, the annuity is to be continued. (3) The brothers and sisters of the testator. If the son die, living A. Young, the right of A. Young is vested: and then (i. e. A. Young surviving the son, and the son dying without issue) the testator's will is, that the property shall be sold by A. Young, his executor, &c. and the proceeds, after paying his 400 pounds, to the four brothers and sisters, by name, and their heirs, or such of them as shall be living at the son's decease. And that this was meant only of his brothers and sisters, is evident from the subsequent bequest to them of his personal estate.

We say, then, that the power to sell was limited to arise upon the contingency: (1) Of John, the son, dying without issue in the lifetime of A. Young, or of the issue failing in the lifetime of A. Y.; or, (2) Of his dying without issue, living one or more of the brothers or sisters of the testator. And that neither of these contingencies having happened, the fee, which was in the son by descent, was discharged from the power, and was devised by his will.

But, it may be asked, why should the disposition in favour of the brothers and sisters be made dependent upon the life of A. Young? The answer is, because it was first and chiefly for the sake of A. Y. that the sale was to be made; and there is no more reason, as regards the intention of the testator, for limiting the disposition in case of issue failing, than in case of the son's dying leaving no issue. And yet the former is clearly done, and was indispensable. Suppose J. Bleakley, jun., had left a child, who survived A. Y. one day, and then died. The reversion in fee would then go to the heir of John, the son, so as to merge and destroy the estate tail, and all intermediate contingent estates. The contingent limitation is only good by way of executory devise. J. Bleakley, jun., took a vested estate tail by the will, and the reversion in fee by descent. The descent was immediate, liable to open and let in the power, upon the happening of the contingency upon which the power was to arise. After the failure of the estate tail, the fee would be in the son and his heirs, until the power was exercised, no estate being given to A. Young. This could only be done by executory devise. There is no preceding particular estate to support the remainder. The fee by descent is no particular estate. It must, therefore, be considered a contingent limitation, good only by way of executory devise. As a contingent remainder, it might be barred by common recovery, but not as an executory devise. It is, besides, the creation of an estate of freehold, to commence in futuro, by the exercise of a power collateral to the estate, and, therefore, also, must be an executory devise. As an executory devise cannot be destroyed by an alteration of the preceding limitation, nor barred by a recovery, to avoid perpetuity, the contingency must be one to happen within a reasonable time, i. e. a life or lives in being, and twenty-one years and a few months thereafter.

Now, let us consider whether it is so limited, and what the limitation is. Dying without issue, or failure of issue, legally imports an indefinite failure of issue, as it respects both personal and real estate, but especially the latter, 'for there the interest of the heir is concerned, which is always much favoured at law.' In the case of personal estate, it has indeed been often construed to mean a dying without issue living at the time of the death. And in the case of real estate, it has been sometimes so construed. But this has been only from necessity, to support the limitations over, and effectuate the legal intention of the testator. And it has therefore never been so construed, where there was an express limitation in the will to the contrary, or of equivalent legal effect. Where, then, there is a limitation sufficient to maintain and preserve the subsequent dispositions, such implication is unnecessary. And where there is a limitation expressed, inconsistent with such implied limitation, the implication is impossible. Such inconsistency is equally great, whether the actual limitation is shorter or longer than the implied limitation. The limitation in this will is, the dying of J. Bleakley, jun., without issue, in the lifetime of A. Young: which includes his so dying, leaving no issue, or leaving issue which fail in the lifetime of A. Young. It is not a double contingency, but a single contingency, embracing both events. The limitation, too, is sufficient to support the ultimate disposition. If so, there can be no limitation to dying without issue, &c. The words are: 'I give to my cousin, A. Young, &c. and annuity, &c. during the joint lives of him, the said A. Young, and my son, J. Bleakley, or his heirs lawfully begotten; but in case of the decease of my said son without issue lawfully begotten, as aforesaid,' &c.

If it be said, that the subsequent words, which contain the disposition in favour of the brothers and sisters, are different; 'and in case of the decease of my said son without such issue,' and ought to be construed a dying without issue living at the time of his death, I answer, that they cannot be so interpreted here; because, (1) They are connected with the antecedent words in the prior part of the will, 'herein after mentioned, and before any dividend is made of the proceeds of my said estate;' and with the words in the subsequent part, 'after deducting out of the proceeds,' &c. (2) It would make the bequest to A. Young depend upon one contingency, and that to the brothers and sisters upon another; whereas, they are plainly connected together, and made to depend upon one contingency. (3) These same identical words are before used as equivalent to a failure of issue; 'during the joint lives of him, the said A. Y., and my son, J. B., or his heirs lawfully begotten; but in case of the decease of my said son without issue,' &c.