shall leave no child or children, or leaving such, all of them shall happen to die under age and without issue,' in which case he gives the fund over. It is said that if the word 'leave' be understood in its ordinary sense, the gift over takes effect, for Martha Oliver had no children who survived her. It appears to me that the testator's intention was to give this fund over only in case the previous limitation should fail." And then he adds this remark, which is so just and applicable to all cases of this description: "But I may observe an observation that may always be made in cases where there is this kind of question, that the testator never contemplated the event which has happened of a child attaining twenty-one and dying in the lifetime of the tenant for life. He assumed the child would have lived." And then he says, "I consider the construction is clear according to the authorities." And he refers to Maitland v. Chalie, 6 Madd. 243, the case decided by Leach, V. C., which he says is clearly in point. In addition to these decisions we have that of Kindersley, V. C., in Ex parte Hooper, 1 Drew. 264, and Wood, V. C., in White v. Hill, Law Rep. 4 Eq. 265, which bring the authorities down from the time of Lord Thurlow (1792) to the present time without dispute. At all events, I speak for my learned Brothers as well as for myself, we do not feel justified in overruling the decision of the Court of Queen's Bench, based on a long series of authorities; the judgment therefore must be affirmed."

7 "This construction cannot be adopted where the gift over is on the death of the tenant for life without leaving any children at his death, or without leaving any children him surviving. Young v. Turner, 1 B. & S. 550; In re Hamlet, Stephen v. Cunningham, 38 Ch. D. 183, 39 Ch. D. 426." Theobald on Wills (7th Ed.) p. 706.

CHAPTER XV

GIFTS ON FAILURE OF ISSUE

PELLS v. BROWN.

(Court of King's Bench, 1620. Cro. Jac. 590.)

See ante, p. 65, for a report of the case.1

CHADOCK v. COWLEY.

(Court of King's Bench, 1624. Cro. Jac. 695.)

Ejectment of lands in Bradmere, of a lease of William Hydes. Upon not guilty pleaded, a special verdict was found, that William Hydes, the lessor's grand father, was seised in fee of this land in Bradmere and East-Leak, holden in socage of that manor; and having two sons, Thomas and Francis, devised them by his will in this manner, viz. to his wife for life, and after her death all his lands in Bradmere to Thomas his son and his heirs forever; and his lands in East-Leak to Francis his son and his heirs forever. "Item, I will that the survivor of them shall be heir to the other, if either of them die without issue." The wife enters, and dies, Thomas enters into the lands in Bradmere, and devises them to Richard his second son in fee, under whom the defendant claims; and William the eldest son of Thomas enters, and lets it to the plaintiff. Et si super, &c.

The sole question was, Whether this devise be an estate tail immediate by the devise, or only a contingent estate, if he died without issue in the life of his brother?

And it was holden by ALL THE COURT (absente LEA), that it was an estate tail, so the devise of Thomas was void: for although it were objected, that the words, "the survivor shall be heir to the other if he die without issue," are idle, for it doth not appear that he had any other children; and then when the one dies without issue, the other is his heir by the law, and so he wills no more than the law appoints; sed non allocatur; for non constat but that he might have other children, and that by several venters; and by the devise he intended to give it to the others by way of devise, if he died without issue. Secondly, for the words, "that the survivor shall be heir to the other if he dies without issue," they seem to be an estate tail. But if the devise had been,

1 So a gift over, on the first taker in fee dying “without leaving issue surviving," is an executory devise on a definite failure of issue. Nicholson v. Bettle, 57 Pa. 384.

that "if he died without issue in the life of the other," or "before such an age," that then it shall remain to the other; then peradventure it should be a contingent devise in tail, if it should happen, and not otherwise but being, "that the survivor shall be heir to the other if he die without issue;" that in his intent is an absolute estate tail immediately, and the remainder limited over, as 7 Edw. 6, "Devise" 38, is; and resembled it to the case 9 Edw. 3, "Tail" 21, and 35 Ass. pl. 14, and 9 Co. 128 and 16 El. Dyer, 330. And that here although the first part of the will gives a fee, the second part corrects it, and makes it but an estate tail. Wherefore it was adjudged for the plaintiff. Vide Dyer, 354 and 122, 124. And this judgment was given upon the first argument.2

NICHOLS v. HOOPER.

(Court of Chancery, 1712. 1 P. Wms. 198.)

John Jackson seised in fee devised lands to his wife Mary for life, remainder to his son Thomas Jackson and his heirs; provided, that if the said Thomas Jackson should die without issue of his body, then he gave £100 apiece to his two nieces A. and B. to be paid within six months after the death of the survivor of the said mother and son, by the person who should inherit the premises; and in default of payment, as aforesaid, then the testator devised the lands to the legatees for payment, and died.

The testator's wife Mary died, and the son Thomas Jackson died, leaving a daughter, which daughter, within the said six months after the death of her father Thomas Jackson died also without issue; the bill was to have the £200 and for the plaintiffs.

It was urged, that though Thomas Jackson left issue living at the time of his death, yet when that issue died without issue, then did Thomas Jackson die without issue; that if a man should devise lands to A. in tail, and if A. died without issue, then to B. if A. should leave issue, and that issue should afterwards die without issue, B.'s estate would plainly commence. So if a rent were limited to commence upon tenant in tail's dying without issue, if tenant in tail left issue, that

2 Accord: Burrough v. Foster, 6 R. I. 534 (devise to grandchildren and "to their heirs and assigns forever," with a gift over "if any of my grandchildren should die leaving no surviving issue," then to "the survivor or survivors of such as shall die as aforesaid," and "to their heirs and assigns forever"; the grandchildren took an estate tail); Hall v. Priest, 6 Gray (Mass.) 18 (devise to the testator's children and to their "heirs and assigns forever," with a gift over "in case of the decease of either of my said children without issue, the share of such deceased child or children shall be equally divided to and among his or her surviving brothers and sisters").

Contra: Anderson v. Jackson, 16 Johns. (N. Y.) 382, 8 Am. Dec. 330; St. John v. Chew, 12 Wheat. 153, 6 L. Ed. 583; Abbott v. Essex Co., 18 How. 202, 15 L. Ed. 352 (semble); Lewis v. Claiborne, 5 Yerg. (Tenn.) 369, 26 Am. Dec. 270; Summers v. Smith, 127 Ill. 645, 650, 21 N. E. 191; Greenwood v. Verdon, 1 K. & J. 74 (semble); Den v. Allaire, 20 N. J. Law, 6, 27.

afterwards died without issue, the rent must commence; and it was said to be the stronger, in regard, in this case, here was a death without issue within six months after the death of the survivor; (scil.) the issue of Thomas died without issue within six months after the death of Thomas her father.

Vernon & Cur' [LORD KEEPER HARCOURT] cont': Thomas Jackson is not by this will made tenant in tail, but continues tenant in feesimple; so that this is not like the limitation of an estate; for it is agreed, that in case of limitation of estates, in construction of law, whenever there is a failure of issue of J. S. though J. S. died leaving issue at his death, yet from that time J. S. is dead without issue.

But where a legacy is given by a will, to commence upon this contingency, (scil.) if J. S. shall die without issue, this shall be taken according to common parlance, viz. issue living at his death; for, in common parlance, if J. S. leaves issue, he does not die without issue; and it cannot be intended that the testator designed, whenever there should be a failure of issue of Thomas, (which might be 100 years hence,) that then these legacies, which were meant only as personal provisions, should take effect.

However, in this case, with respect to the legatees, if the legacies. take any effect, the words of the devise pass a legal interest, and the court does not hinder the plaintiffs from proceeding at law, in an ejectment, but dismisses the bill.

Note. This differed from the case of Goodwin v. Clark, 1 Lev. 35, where a settlement was on husband and wife for their lives, remainder to the first, &c., son in tail male, and if the husband should die without issue male, remainder to the daughters for a term of years, for the raising of £1500 for their portions; and the husband died leaving issue a son and a daughter, after which the son died without issue:

Whereupon it was adjudged, that the daughter should have the £1500, for that whenever the issue male of the husband failed, he might properly be said to be dead without issue male. 8 Co. 86, Buckmere's Case. And this very expectation, remote and precarious as it was (for there being an estate-tail, a recovery suffered by the tenant in tail would have barred the portions expectant thereupon) was, notwithstanding, of advantage to the daughters with respect to their advancement in marriage; whereas in the principal case, the estate being a fee, no recovery could be suffered thereof, and consequently there was danger of a perpetuity.

HUGHES v. SAYER.

(Court of Chancery, 1718. 1 P. Wms. 534.)

John Hughes, after several legacies, by his will directed that the surplus of his personal estate should be divided by his executors into ten shares, three shares whereof should be paid to his nephew and niece, Paul and Anne Hughes, children of a deceased brother, and upon either of their dying without children, then to the survivor, and if both should die without children, then to the children of the testator's other brothers and sisters.

The question was, whether this devise over of a personal estate upon the devisee's dying without children, was good or not?

And his Honor [SIR JOSEPH JEKYLL, M. R.], having taken time to consider it, gave judgment that the word (children) when unborn, had been in case of a will construed to be synonymous with issue, and therefore would in a will, create an estate tail; and if the word (children) was understood to be the same with issue in the present case, then the devise over of the personal estate upon a death without issue would be void; but that here the words (dying without children) must be taken to be children living at the death of the party. For that it could not be taken in the other sense (that is) whenever there should be a failure of issue, because the immediate limitation over was to the surviving devisee, and it was not probable, that if either of the devisees should die leaving issue, the survivor should live so long as to see a failure of issue, which in notion of law was such a limitation as might endure forever.

And therefore, by reason of the limitation over in case of either of the devisees dying without children, then to the survivor, the testator must be intended to mean a dying without children, living at the death of the parent, consequently the devise over good.3

FORTH v. CHAPMAN.

(Court of Chancery, 1720. 1 P. Wms. 663.)

This cause was reserved for the judgment of the Master of the Rolls [Sir Joseph Jekyll], who after time taken to consider thereof, gave his opinion. The case was,

One Walter Gore by will devises thus: all the residue of his estate real and personal he gave to John Chapman in trust, only the lease of the ground he held of the school of Bangor, for the use of his nephews William Gore and Walter Gore during the term of the lease as hereinafter limited, and having given several legacies, declared his will as to the remainder of the said estate, as well as his freehold house in Shaw's

3 Accord: Clapp v. Fogleman, 21 N. C. 466.