1789.

Keating and wife

V.

Reynolds.

was manifest, from the words in the will, the words themselves, and the true meaning and import of them, ought to govern. But in cases of doubt and obscurity, courts would go great lengths, in order to effectuate the general intention of the testator, if consistent with law. To support this doctrine, he quoted 1 Burr. 50, 51. 233. 272, 3. 2 Birr. 1111. 3 Burr. 1581, 2. 1622. 4 Burr. 2249. Cowp. 31. That the intention of the testator was plain and evident from the tenor of this will. He obviously intended, that his children should possess his estate, in preference to strangers; and that in case of the death of either of them, without leaving children, that the share or portion of the child so dying without issue, should go over to the survivor. The words of the will, which evince the intention, are these; "But if the said Sarah and Martha Thorpe "should die with (out) (the syllable "out" being omitted "through a clerical mistake in the person who drew the "will) having a lawful heir of their body to live, then and "in that case he gave and devised those slaves above men"tioned, and their increase, to be equally divided to the "survivors." From the phraseology of this clause, it is certain, that the will was not drawn by an accurate lawyer or draftsman, but it is sufficiently clear at the same time to show the testator's meaning, to wit, that if either of his said children, or daughters, died without issue, the share of that daughter or child should go to the survivor. This then being clearly the meaning of Thorpe, the testator, the only question for the court was, whether there was any rule of law against this limitation over to the survivor. Upon this last point, he conceded, that a limitation over of a personal chattel, after an indefinite failure of issue, was void. The policy of the law was against it, because of its having a tendency to create perpetuities in a chattel interest, which the law abhors. The cases in 2 Black. 398. and 1 Peere Wms. 290. were both in point against such limitations. But he contended, that if the limitation over be confined to such issue as shall be living at the time of the death of the first taker; or, if the limitation over is to take effect in the life

1789.

Keating and

wife

V.

time of any person or persons then in being; or if it is confined to a certain number of years, that then, and in either of these cases, the limitation was good, and such as the law will maintain. In these cases, the generality of the expres- Reynolds. sions, "heirs of the body," or "issue," which would look forward to an indefinite failure of issue, is qualified by being reduced to a certain number of years, or to a life or lives then in esse, &c. This doctrine is established and confirmed by a variety of adjudged cases. In the case of Lamb and Archer, (1 Salk. 225.) the testator H. devised a term for years to A. and to the heirs of his body, and if he die without issue living, then to B. The court held this a good limitation over to B. the contingency happening or arising within the compass of a life then in being. The present case then comes exactly within the rule of law laid down in that of Lamb and Archer. Here, he said, the limitation is to the issue of Mrs. Norris, living at the time of her death. But, in default of issue, then to the survivor, who is Mrs. Keating. The contingencies happened too in the life-time of Mrs. Keating, for both her sister and infant died while she was living. They were both in the compass of her life. So that in fact this limitation is confined to the issue of Mrs. Norris, living at the time of her death; but on failure of such issue, then to take effect in the life-time of Mrs. Keating then living. So likewise in Fletcher's case, 1 Eq. Abr. 193. a devise of a term was to F. but if F. should die before the term expired, without having issue of his body then living, remainder over to D. This was held a good remainder. In this last case, the limitation over was upon this contingency; if he die without issue then living, that is, at the time of his death, which is good, because the contingency must happen within one life, or not at all; for upon his death it will certainly be known. whether he leaves issue or not. If he docs, the contingency cannot take place. If he does not, then it may; and this being to happen within the compass of a life, is good as an executory devise. In Peere Wms. 534. A. devised his

1789.

Keating and wife

V.

personal estate to his two nephews, B. and C. and if either of them should die without children, then to the survivor. It was held that dying without children, must mean, children Reynolds living at the death of the party; because the immediate li mitation over was to the survivor, consequently the devise over was a good devise.

The other cases which were quoted as in point, and remarked on, were Sheffield v. Lord Orrery. 3 Atk. 283. 7. Forth and Chapman. 1 P. Wms. 663. Atkinson and Hutchinson. 3 P. Wms, 250. Harman and Dickinson. Brown's Rep. 91. Duke of Norfolk's case. Fearne, 354,

5, 6, 7, 8, &c.

Holmes, for defendant, admitted, that in the construction of wills, the intention of the testator ought to govern, unless the devise is contrary to the policy of the law; in which case the law was paramount to the will of the tes tator, and would control the intention. That the limitation in this case was only of the personal property. That chittels might be limited over in particular cases; but wherever it was after an indefinite failure of issue, it was too remote, and the property vested in the first taker. He cited and principally relied on the case of Beauclerk and Dormer, (2 Atk. 308.) The question in that case arose upon the construction of a clause in General Kirk's will. Kirk, in his will, says, "I make Miss Dormer my sole "heir and executrix, and if she dies without issue, then to go "to Lord George Beauclerk." A bill was afterwards brought by Lord Beauclerk, to have an inventory taken from the defendant, Miss Dormer, on oath, of all the personal estate of Gen. Kirk, and that the complainant's interest might be established by a decree of the court, and that the inventory might remain as evidence of the personal estate, in case the contingency should happen. But Miss Dormer refused it, and insisted that she had an absolute right both to the real and personal estates, and that she was not obliged to acLord Hardwicke held, that the limitation over was void, and cannot be confined to the defendant's dying with

count.

out issue living at the time of her death, and therefore dismissed the plaintiff's bill. In the above case, the same grounds were taken for the complainant, as those relied on by the plaintiff in the present case; namely, that it was the intention of the testator, that if the defendant died without issue living at her death, that then Lord George should take. And it was contended, that the vulgar meaning of the words "dying without issue," had always been regarded by the court, as having no issue at the time of the death. Yet the Lord Chancellor said, "I do not think the con"struction contended for on behalf of the plaintiff, is sup

ported by any one case whatever; and therefore as the "words in the will are general and unrestrained, the limita"tion over must be void." So likewise it was contended, that the words in Thorpe's will were general and unrestrained; that they comprehended and took in a whole generation; that they were like heirs of the body, which created an estate-tail, and extended not only to the immediate issue, but to all who might descend from her from generation to generation. Consequently, the limitation over was too remote, and not warranted by the rules and policy of the law. The case of Reid v. Snell, 2 Atk. 647. is also in point, where it is laid down, that a limitation over after a general dying without issue, is bad.

Pinckney, on the same side, urged, that all the cases cited for the plaintiff related to implied estates-tail, and not to express ones. That this was an express estate-tail, and being of a personal chattel, vested the property in the first taker. Fearne, 345. 1 Vez. 154. 2 P. Wms. 290. Daw v. Pitt, Fearne, 347. Brown's Cha. Rep. 170. 188. But considering the estate as a conditional fee, still the condition was performed by having issue, which vested the property absolutely in Mrs. Norris, the devisee. The language of the law on this occasion, was simply and plainly this. That the testator meant to give the negroes in question to his daughter Martha, provided she had issue. She had issue. Consequently, the condition upon which she

1789.

Keating and

wife

V.

Reynolds.

1789.

Keating and wife

V.

Reynolds.

was to have the estate being performed, the property absolutely vested in her upon the performance. That even if the limitation over was good originally, yet the marriage of Martha, and her having issue, destroyed it; and it would be against the rights of marriage to deprive the husband of the property acquired by his wife.

Rutledge, in reply. It is certainly the duty of the court to support the intention of the testator, if it is clear. In this will there is a double contingency, to wit, the dying without issue by Mrs. Norris, and a survivorship of Mrs. Keating. With respect to the first, it is clear, that the dying without issue, ought not to be construed, an indefinite failure of issue; but a dying without issue living at the time of her death. The words are, "but if the said "Sarah or Martha should die without having a lawful heir "of their body to live, then, and in that case, to the sur"vivor." The words, "to live," plainly mean, living at the time she should die, or at the time of her death, and clearly qualify the generality of the expressions, "dying "without issue," which brings this case within one of the rules of law, mentioned by the first counsel, to wit, that the limitation was good, if confined to such issue as should be living at the death of the first taker. The word "then," which immediately follows the words "to live," is a word of reference, and confirms this construction, as it relates back to the determination of the first estate, or contingency, and commences the sentence which carries the property over to the second contingent person, Mrs. Keating, then living, which carries this case also under the second rule first laid down by his colleague, to wit, "that the limitation. "is good, if to take effect in the life-time of any person "then in being." In support of this legal position, 2 P. Wms. 686. Duke of Norfolk's case, Cowp. 9. 600. 1 Eq. Ca. 193. 1 P. Wms. 534, &c.

The judges took time to consider this case, and afterwards, on the adjournment day of July term, 1789, delivered their opinions.