body of such issue,39 will confer an estate tail upon the devisee; and the issue, if they receive any benefit at all, will take by descent and not by purchase.

But the context may often restrict the general legal effect of the word "issue," as where there is a direction for an equal division among the issue in fee after the decease of the devisee;10 or where there is a devise simply to one "for life, and after his decease to and amongst his issue," with words appropriate to confer upon them a fee;11 or where there is a remainder to the issue in fee in such proportion as the devisee should by will appoint;42 or where there is a remainder to the issue, "share and share alike, as tenants in common and to the heirs of such issue";43 or where there is a devise to children and the survivors or survivor for life, and then to their lawful issue and the heirs of the body of such issue, with cross-remainders between the issue.“ Accordingly it may be laid down as a general rule that wherever words which direct the manner of distribution, together with words which would carry an estate in fee

39 Roe v. Grew, 2 Wilson K. B. 322, overruling Backhouse V. Wells, 1 Eq. Cas. Abr. 184, pl. 27. See, also, Frank v. Stovin, 3 East 548.

40 Doe v. Applin, 4 Term Rep. 82; Hockley v. Mawbey, 1 Ves. Jun. 143; Moore v. Parker, 34 N. C. (12 Ired. L.) 123.

See, however, Kavanagh v. Morland, Kay 16; Doe v. Rucastle, 8 Com. B. 876; Heather v. Winder, 3 L. J. Ch. N. S. 41.

41 Doe v. Applin, 4 Term Rep. 82; King v. Burchell, 1 Eden 424.

Contra: Burnsall v. Davy, 1 Bos.

& P. 215; Jacobs v. Amyatt, 4 Bro. C. C. 542.

See, also, Clanton V. Estes (Vason v. Estes), 77 Ga. 352, 1 S. E. 163; Lenz v. Prescott, 144 Mass. 505, 11 N. E. 923.

42 Lees v. Mosley, 1 You. & C. 589; Crozier v. Crozier, 3 Dru. & War. 353.

See, however, Croly v. Croly, Batty 1.

43 Greenwood V. Rothwell, 5 Man. & G. 628; Slater v. Danger. field, 15 Mees. & W. 263.

44 Parker v. Clarke, 3 Sm. & G. 161, 6 De Gex, M. & G. 104.

or in tail, are annexed to the gift to the issue, the ancestor takes an estate for life only, and the issue will take a remainder by purchase."5

8947. Creation of Estates Tail by Implication: Gift Over if Devisee "Die Without Issue."

An estate in fee tail may be created by implication. Thus an estate devised to "A and his heirs" passes the fee if not otherwise limited; but if the devise further provides that if A dies without issue the estate shall pass to B, the estate is reduced to a fee tail by implication. The reference to the heirs of the first devisee is construed as intending the heirs of his body, and the provision for the gift over implies that the testator did not intend that the issue of the first devisee should be deprived of the gift, should there be any to take.46 Thus under the rule of the common law an estate tail is created by implication from a gift over "in default of issue" of the first devisee, or in the event of his dying "without heirs born of his body," or "dying without issue," or any expression importing either a want or failure of issue.47 Among

45 Parker v. Clarke, 3 Sm. & G. 161, 6 De Gex, M. & G. 104; Roddy v. Fitzgerald, 6 H. L. Cas. 823; Clifford v. Koe, L. R. 5 App. Cas. 447; Kavanagh v. Morland, Kay 16.

See §§ 871, 872.

46 Turrill v. Northrop, 51 Conn. 33, 35; Nightingale v. Burrell, 15 Pick. (32 Mass.) 104.

47 Turrill v. Northrop, 51 Conn. 33; Waples' Lessee v. Harman, 1 Har. (Del.) 223; Roach v. Martin's Lessee, 1 Har. (Del.) 548, 28 Am. Dec. 746; Deboe v. Lowen, 8

B. Mon. (47 Ky.) 616; Hall v. Priest, 6 Gray (72 Mass.) 18; Hayward v. Howe, 12 Gray (78 Mass.) 49, 71 Am. Dec. 734; Albee v. Carpenter, 12 Cush. (66 Mass.) 382; Williams v. Hichborn, 4 Mass. 189; Hawley v. Inhabitants of Northampton, 8 Mass. 3, 5 Am. Dec. 66; Shoemaker v. Huffnagle, 4 Watts & S. (Pa.) 437; Eichelberger v. Barnitz, 9 Watts (Pa.) 447; Shoofstall v. Powell, 1 Grant. Cas. (Pa.) 19; Hall's Lessee v. Vandergrift, 3 Binn. (Pa.) 374; Lapsley v. Lapsley, 9 Pa. St. 130; Hansel v. Hub

such expressions are the words "lawful heirs," which are construed as equivalent to "lineal descendants," or "issue."'48 Under the American statutes abolishing estates tail, such expressions operate to create a fee simple, defeasible upon death without issue.49

§ 948. "Die Without Issue": At Common Law Meant Indefinite Failure of Issue.

The established rule at common law was that where a devise was made with a gift over in the event of the devisee "dying without issue," or words of like import, and there was nothing in the context of the will to the contrary, such words were construed to refer to an in

bell, 24 Pa. St. 244; Doyle v. Mullady, 33 Pa. St. 264; Lawrence v. Lawrence, 105 Pa. St. 335; Whitworth v. Stuckey, 1 Rich. Eq. (S. C.) 404; Tate v. Tally, 3 Call (Va.) 354; Wright v. Cahoon, 12 Leigh (Va.) 370; Willis v. Bucher, Fed. Cas. No. 17769, 3 Wash. C. C. 369.

Where the clause passing a fee simple is immediately followed by a provision that in case of the death of the devisee without lawful heirs of his body the estate shall go to another, the first devisee takes an estate tail by implication.-Chesebro v. Palmer, 68 Conn. 207, 36 Atl. 42; In re Reeves, (Del.) 92 Atl. 246.

Where the residue of the testator's real and personal property is given to A, "provided that at A's death the proceeds of the same shall be paid to" an ecclesiastical society, "always provided that the

definite failure or extinction of issue, at any future period.50 To create an estate tail by implication the limitation over had to be upon a general indefinite failure of issue, and not a failure at the death of the first taker.51 Thus, where a devise was to one in fee, followed by a proviso that if he "die without issue," or "without leaving issue," or "have no issue," or other words of like import, then over to another in fee, the estate in the first taker was a fee tail which, if he left issue, passed to them by descent as tenants in tail.52

§ 949. The Same Subject: Statutory Changes.

The ulterior limitation over after death without issue, being a remainder contingent upon an indefinite failure of issue of the prior devisee, would now be void generally for remoteness. However, the construction has been

50 Tongue's Lessee v. Nutwell, 13 Md. 415; Huxford v. Milligan, 50 Ind. 542; Hall v. Priest, 6 Gray (72 Mass.) 18; Allen v. Trustees of Ashley School Fund, 102 Mass. 262, 264; Hall v. Chaffee, 14 N. H. 215; Ladd v. Harvey, 21 N. H. 514, 526; Ingersoll's Appeal, 86 Pa. St. 240; Burrough v. Foster, 6 R. I. 534; Arnold v. Brown, 7 R. I. 188; Addison v. Addison, 9 Rich. Eq. (S. C.) 58; Randolph v. Wendel, 4 Sneed (36 Tenn.) 646.

As to personal property, see Edelen v. Middleton, 9 Gill (Md.) 161; Albee v. Carpenter, 12 Cush. (66 Mass.) 382.

51 Hertz v. Abrahams, 110 Ga. 707, 50 L. R. A. 361, 36 S. E. 409; Gable v. Ellender, 53 Md. 311; Perry v. Kline, 12 Cush. (66 Mass.) 118; Davies' Admr. v. Steele's Admr., 38 N. J. Eq. 168; Middleswarth's Admr. v. Blackmore, 74

Pa. St. 414; Lawrence v. Lawrence, 105 Pa. St. 335; Burrough v. Foster, 6 R. I. 534; Mangum v. Piester, 16 S. C. 316; Kirk v. Furgerson, 6 Cold. (46 Tenn.) 479.

52 Barber v. Pittsburgh, F. W. & C. R. Co., 166 U. S. 83, 41 L. Ed. 925, 17 Sup. Ct. 488; Watkins v. Pfeiffer, 29 Ky. L. Rep. 97, 92 S. W. 562; Riggs v. Sally, 15 Me. 408; Gilkie v. Marsh, 186 Mass. 336, 71 N. E. 703; Eichelberger v. Barnitz, 9 Watts (Pa.) 447.

A devise over in the event of a married woman "dying without offspring by her husband," is equivalent to a devise in the event of her "dying without issue."-Barber v. Pittsburgh, F. W. & C. R. Co., 166 U. S. 83, 41 L. Ed. 925, 17 Sup. Ct. 488.

Where the devise was to G and his heirs forever, followed by the clause, "It is my will notwithstand.

changed by statute. While the words "die without issue," or similar words, import an indefinite failure of issue if there be no other provisions in the will denoting a contrary intent, this meaning has so often done violence to the real intention of the testator that in England and in many of these United States54 statutes have been enacted declaring that such words shall be construed to mean not an indefinite failure of issue, but a want or failure of issue in the lifetime or at the death of the person referred to.

§ 950. The Same Subject: Referring to Death of First Devisee. The construction at the present day which is given to a devise to one in fee with a limitation over should he "die without issue," applicable in all cases except where the courts are fettered by precedent, is that the words refer prima facie to failure of issue at the death of the first taker.55 Such construction eliminates, in such cases, the creation of estates tail by implication.56

ing, that if G shall die without is. sue who can inherit, the estate shall go in equal shares to my brothers and sisters," etc., G took an estate tail.-Turrill v. Northrop, 51 Conn. 33.

53 Statute of 1 Victoria, ch. 26, § 29.

See § 866.

54 Ga. Code, (1861) § 2231; Gibson v. Hardaway, 68 Ga. 370.

Mass.-R. L., ch. 134, § 5. Stone v. Bradlee, 183 Mass. 165, 66 N. E. 708.

See § 867.

"Dying without issue" means heirs or issue living at the death of the person named as ancestor.Mo.-Statute of 1845, §§ 5 and 6.

Gannon v. Albright, 183 Mo. 238, 105 Am. St. Rep. 471, 67 L. R. A. 97, 81 S. W. 1162.

Anderson v. Jackson, 16 Johns. (N. Y.) 382, 8 Am, Dec. 330; Ebbetts v. Quick, 66 How. Pr. (N. Y.) 184.

55 Gibson v. Hardaway, 68 Ga. 370; Morgan v. Morgan, 5 Day (Conn.) 517, where the gift over was upon the death of the prior taker without "children."

See, also, Couch v. Gorham, 1 Conn. 36; Hudson v. Wadsworth, 8 Conn. 348; Bullock v. Seymour, 33 Conn. 289.

As to who are included in the term "issue," see §§ 848, 849. 56 Middlesex Banking Co. V.