CHAPTER V. -as regards real estate; -as regards personal estate; before the statute, was the legal interpretation. For when land was devised to A., whether indefinitely, or with words of limitation for life or in fee, and if he should die without issue, or without leaving issue, then over to B., the courts, inferring an intention, as well to provide for the issue of A., as, after exhausting his issue, to secure the property to B., and seeing that an estate tail in A. would embrace all his issue, and at the same time admit of the devise over taking effect, by way of remainder, on failure at any, the remotest period, of such issue, without tending to a perpetuity, (the estate tail and the limitation over being barrable), read the words "die without issue" or "die without leaving issue" as expressive of a general failure of issue, and raised an estate tail by implication in A.; instead of adopting the popular construction, which, if A. left issue, though outliving him but for an instant, excluded the devise over. So far, therefore, as concerned real estate, admitting of an entail, (and estates pur auter vie, in which there may be a quasi estate tail, fell within the principle), the intention was probably promoted, in the great majority of cases, by the old construction. But as personal estate was not susceptible of an entail, and as a disposition of that species of property, to take effect on an indefinite failure of issue, had, therefore, in all cases, a direct tendency to a perpetuity, the legal construction of the words "die without issue" obliged the courts to pronounce a bequest over of personal estate, to take effect "in case A. should die without issue," void from the beginning; thus leaving the property absolute in the first taker, whether he left issue or not; a result which naturally produced some expressions of judicial regret, and brought some scandal on the law. The mischief was, perhaps, rather aggravated by the distinctions introduced with the view of cor CHAPTER V. as regards sonal estate, the same gift. real and per comprised in The contrasted operation of the recting it; for, in construing testamentary gifts of personal estate, the courts, in order to support the gift over, often held the generality of the "dying without issue" to be restrained by slight expressions, which, if real estate, capable of an entail, had been the subject of the disposition, would have been disregarded. Indeed, the astuteness of the courts to discover plausible grounds for so moulding such bequests as to confine them within legal limits, led, not only to the reception of the words" without leaving issue,” when applied to personal estate exclusively, in the restricted sense of "without leaving issue living at the death," but even to the adoption of different readings (m) of those words, when applied indiscriminately to real and personal estate blended in the same gift. Such being the state of the authorities when the new rule was propounded, its operation must be very forcible and extensive, and, at the same time, very different as regards different species of property. as regards As to real estate, it will change a devise to A. and his heirs (n), or to A., (without words of limitation (o)), and if he shall die without issue, then over to B., from an estate tail by implication in A., with remainder to B., into a fee in A., subject to an executory devise to B., to take effect in the event of the death of A. without issue living at his death. These consequences will follow:-the issue of A. cannot take, as such, under the will; A. cannot defeat the devise over; the devise over will not take effect in any other event than that of a failure of issue at the death of A.; and this result must often violate the intention (p). Again, the (m) Forth v. Chapman, 1 P. Wms. 663; and see 9 Ves. 203; 19 Ves. 77; 8 Sim. 22; 7 Ad. & Ell. 649. (n) Browne v. Jerves, Cro. Jac. 290; Dutton v. Engram, Cro. Jac. 427; Brice v. Smith, Willes, 1; Doe v. Ellis, 9 East, 382. (0) Sonday's Case, 9 Co. Rep. 127; Blaxton v. Stone, 3 Mod. 123; Denn v. Slater, 5 T. R. 335. (p) Vide ante, 398. new rule; real estate. CHAPTER V. an express de vise for life was new rule will change a devise to A. for life (9), and if he shall die without issue, over to B., from an estate tail by implication in A., (for the implication was equally strong, whether the devise was indefinite, or was expressly for life, or even for life and no longer (r)), with remainder (vested) to B., into an estate for life in A., with remainder (contingent) to B.; and such remainder, being contingent and unprotected by an estate in a trustee, On what ground may of course be destroyed. The true, and, indeed, the only justifiable ground (s) for holding that A., though in express terms, a devisee for life only, took an estate tail, was this-that, as the devise over was not to take effect till failure of his issue, there was an implied gift to his issue, (which word "issue" is equivalent in a will to "heirs of the body (t)," unless restrained by an explanatory context (u)), in remainder expectant on his life estate, and that this remainder attached in himself under the rule in Shelley's case (x). The very foundation of that construction was the manifest intention to benefit the issue. Now, however, as all implication from the words importing a failure of issue is excluded by the act, (q) See Blackborn v. Edgley, 1 P. Wms. 600; Brice v. Smith, Willes, 5; Knight v. Ellis, 2 Bro. C. C. 570. (r) Robinson v. Robinson, 1 Burr. 38. (8) See Doe v. Gallini, 5 Barn. & Adol. 621; 2 Nev. & M. 619; Doe d. Linsey v. Edwards, 6 Nev. & M. 633, 653. If the rule in Shelley's case had not existed, it is obvious that A. would have been tenant for life, with remainder to his issue indefinitely (i. e. heirs of his body) as pur chasers, with remainder over. On the ordinary principles of construction, there would have been no pretence for vesting the estate tail in him, contrary to the manifest intention; but the courts were constrained by legal necessity. (t) Tate v. Clarke, 1 Beav. 100. (u) Cursham v. Newland, 2 Bing. N. C. 58, 4 Mee. & W. 101; Lees v. Mosley, 1 Yo. & Coll. 606. But see Tate v. Clarke, 1 Beav. 100. (x) See Illustrations, VI. s. 1. the issue cannot take, either derivatively through A. or CHAPTER V. independently of him, but on his death, leaving issue, the disposition will fail, for the benefit of the residuary devisee or of the testator's heir, contrary, perhaps, to the intention of the legislature, as well as of the testator; nor is the property, in the event of the death of A. without leaving issue, secured to B., for A. and the residuary devisee or heir may together make a title (even a marketable title (y)) to the fee, discharged from the contingent remainder to B. (2). The words "die without leaving issue," "or without having issue," when applied to real estate, imported, equally with the words "die without issue," or "in default of issue," an indefinite failure of issue, and raised an estate tail by implication (a); but no such implication will now arise. If, however, an estate tail were substantively devised to A., the new rule would be excluded, and the devise over would create a vested remainder expectant on the estate tail. As to personal estate, the new rule will as regards change a bequest to A., and if he shall die without issue, over to B., from an absolute interest (b) in A., (the gift over being void, as we have seen, for remoteness,) into a bequest to A. of the whole interest, defeasible by an executory bequest over to B., to take effect in the event of A.'s death without issue then living. In this case, the act will simply give validity to the bequest (y) 2 Sugd. V. & P. 10th ed. however, is silent as to the reason 181, 187. of the distinction between real and personal estate. (2) Fearn. Cont. R. 340. (a) Dansey v. Griffiths, 4 Maul. & S. 61; Wollen v. Andrewes, 2 Bing. 126; 9 B. Moore, 248. Though this point seemed to be clear, it underwent an elaborate discussion in the recent case of Doe v. Ewart, 7 Ad. & Ell. 636, which, VOL. I. (b) Bennett v. Lewknor, 1 Roll. R. 356; Love v. Windham, 2 Chan. R. 14, 1 Lev. 290; Garth v. Baldwin, 2 Ves. sen. 646; Foley v. Burnell, 1 Bro. C. C. 274; see Doe v. Simpson, 4 Bing. N. C. 333. D D personal estate; CHAPTER V. over, in the only form in which it is capable of effect, namely, that of an executory bequest confined within due limits; which form, it may be presumed, the testator himself would, if properly advised, have given it. But, personal estate. as to both real and personal estate, if the gift be to A. -as regards both real and The rule excluded, where the words relate to a prior gift; for life, and then to his unborn children, (with or without (c), as respects the real estate, words of limitation,) and in case A. shall die without issue, then over to B., the words "without issue" will import merely a failure of objects of the preceding gift to the unborn children (d). So, generally, if, according to the ordinary rules of construction, the words importing a failure of issue be merely relative to the objects of an antecedent gift, the statute-rule will stand excluded; and as an indefinite devise to children will in future pass the fee (e), instead of estates for life only, as before (f), subsequent words, importing a failure of issue of the parent, will be merely words of reference in cases (as the case of a devise to A. for life, and then to his unborn children, without words of limitation, and if A. shall die without issue, then over to B.) where they would not otherwise have borne -but otherwise that restricted construction (g). As the enactment exextends to gifts generally. tends generally to every devise and bequest containing words which may import an indefinite failure of issue, it follows that if real or personal estate be given to A., and in case B. (to whom nothing is given) shall die without issue, then to C., the gift to C. would no longer be void for remoteness. In order that words importing a failure of (c) See s. 28; ante, 394. (d) Goodright v. Dunham, 1 (e) See s. 28; ante, 394. try, 3 T. R. 83; and see Doe v. Dacre, 1 Bos. & Pull. 250, 8 T. R. 112; Lewis v. Waters, 6 East, 336; Foster v. Earl of Romney, 11 East, 594. (g) Parr v. Swindels, 4 Russ. 283; Hayes's Principles, 33; Inquiry, 340. |