Du Bois v. Ray

—By the second article of the will in controversy, the testator gives to his wife, in lieu of dower, a legacy, an annuity for life, and also the use for life of his “ books, wines, horses, carriages, furniture, and household effects,” which he bequeaths to any child or children of his living at the time of her death, and in case of no such child or lineal descendants of them, to his heirs at law.

The next two articles of the will are as follows:

“ 3. The rest and residue of my personal property I give, devise, and bequeath to my executors hereafter named, in trust, and for the use of my daughter Elizabeth Sarah, not to be paid by them into her hands until she shall have attained the age of twenty-four years.; and if she shall marry before that age, with the consent of her mother, I hereby expressly charge my executors not to pay to her or . her husband, any part of the personal property, or of the income arising therefrom, unless he, the said husband, shall previously to her marriage have settled upon her, for her private and separate use and maintenance, a sum equal to the one-half of the said personal property. And I hereby charge it upon her, as a duty to her father, to insist upon such settlement being made, beyond and out of the power of her husband, or herself, or both of them, jointly, to change. If my said daughter should marry without the

“ 4. All my real estate I give, devise, and bequeath to my daughter Elizabeth Sarah, with all the rents, produce, and profits thereof, to have and to hold, for her use, benefit and behoof, for and during the term of her natural life, and after her death to the child or children she may leave, to be equally divided between them, should she leave more than one child, when he, she, or they may have attained respectively the age of twenty-one years, to have and to hold, to his, her, or their use, benefit, and behoof, forever, share and share alike.”

The remainder of the fourth article consists of a direction to sell part of the testator’s real estate, to pay incumbrances on the residue, and a power to grant leases.

The fifth article then succeeds as follows :

“ 5. As, at the time of making this will, I have but one child, Elizabeth Sarah Ray, I have made no provision for any other child or children I may have, either before my death or posthumous. But my will, in case of my having such child or children as aforesaid, is as follows : my personal property shall be divided in equal shares among my children—my daughter Elizabeth Sarah being, in such case, entitled to her portion only, instead of the whole, to be paid to her and secured to her in manner and form before mentioned. If any remaining child or children should be a girl or girls, then the provisions of the third section of this, my will, are to be applied to her or them; if one or more should be a boy or boys, then he or they are to have their share of the personal property, paid into his or their hands, when he or they shall have attained respectively twenty-one years. The provisions of the fourth section of

The last three recited articles contain all tñe provisions in the will for the testator’s immediate descendants; it will be important, therefore, to consider what disposition they make of the testator’s estates, and upon what conditions and limitations, before inquiring how far the sixth article infringes upon the rights conferred by them. •

In the first place, the testator-confers upon his children, (if they reach the ages prescribed in the third and fifth articles according to their sex,) the absolute ownership of the residue of his personal property not disposed of in the second article, in the strongest possible language; indeed, so strong as hardly to admit of the. supposition that the testator could have had in his mind at the time of so expressing himself, any idea of divesting such ownership upon any contingency; thus, although the share of the child named in the third article is retained until she reach the age of twenty-four, and in case of her death before reaching that age, leaving issue surviving her, it is given to such issue; yet, if she reach that age, it is given to her absolutely, without mentioning issue, nor is this defect, if defect it be, supplied anywhere in the will. Such absolute ownership is only postponed six years, not defeated even by marriage, without the mother’s consent, within the limit of the prescribed age. The fifth article not only recognizes the gift of absolute ownership in the third, by speaking of the daughter mentioned in the latter as being thereby entitled to have the property paid or secured to her, but in emphatic terms directs the share of every male child to be paid into his hands when he comes of age. The language of the fourth article, instead of conflicting with” this view of the preceding and following one, strengthens it by contrast,, for it shows the testator knew how to give

The absence of any provision in the will for the testator’s brother and sister is also worthy of remark, because he provides under certain circumstances presently to be examined, for their families, by the sixth article, and does not undertake to account for passing them by; and even then, as will presently appeal-, does not provide for such families, unless both his brother and sister be dead. Either of them who outlived him, if he left no descendants, would take a moiety of both real and personal estate, as heirs at law and next of kin, unless prevented by the sixth article. If both died before him, under such circumstances, and any of their grandchildren should be orphans at the time of his death, they would, under the statute of distribution, be excluded from any interest in his personal estate. (2 R. S. 91, § *75, Subd. 11.)

The testator, however, by the three articles of his will before referred to, not only made every disposition intended by him for the benefit of his own family, but meant to provide for every contingency"which he thought might affect them, leaving his property, in every other contingency, either to pass as in case of intestacy, or to be disposed of by subsequent parts of his will. Thus (except in regard to real estate) he provides for the result, either of his children attaining a certain age, or dying under it, leaving issue; he also provides for an increase of his children, even carefully naming posthumous ones, so as to prevent the effect of the statute, (2 R. S. 64, § 38; Id. 65, § 44,) which would give

Eollowing these words, in the sixth article, and adding thereto “ at the time of my death,” he declares :

“ 6. In case I have no child or children living at the time of my death, and no posthumous child; or in case such child or children should die without lawful issue, and I should have no lineal descendants, I give, devise and bequeath my whole estate, real and personal, to the children whom my brother, Robert Ray, and my sister, Mary, wife of John A. King, may leave, or the child and children of any who may die before me, (such last mentioned child or children to inherit only its father’s or mother’s share,) to be divided equally and in equal parts among such children, per capita, and not per stirpes, when the eldest of such children shall have attained the age of thirty-four years; each child who, at the time of such division, may be under age, to receive his or her portion on reaching the age of twenty-one years.”

Before examining the effect of this article upon the preceding ones, it may be well to take into consideration the fact, that the issue of such of the testator’s children as might die before him, leaving issue, after they attained, according to their sex, the ages fixed by the third and fourth articles, might possibly take by virtue of the statute, (2 R. S. 66, §-42,) the same estate in fee which they would take under the will if their parent had not reached the prescribed age; it would, therefore, be not inappropriate for the testator to commence a provision for collateral relatives, by excluding the possibility of there being any of his own family living to take at the time of his death; and declaring not only that he is to leave no children, but that he is to be without lineal descendants before such relatives can take.

If, however, the failure of his own line at a future period,, after his own death is contemplated in such article, and he intended in such case to devise to collateral relatives what

In order to fully understand such article, it must be examined not only in reference to the contingency upon which the beneficiaries are to take, but the mode of determining who they are to be, together with the substitution of some in the place of others, the interest they are to take, and the period of their enjoyment, all of which are embraced in the due understanding of it.

The first question which arises upon such article is, as to the contingency on which the collateral relatives mentioned in it are to. take, being the time of the failure of the descendants of the testator intended thereby; whether it refers to the testator’s death, or some future time, and if the latter, whether it is indefinite, or limited to any time or any event.

I do not consider the introduction of the words “posthumous child,” in this and the preceding article, as at all decisive by itself of an intention to postpone the failure of issue until after the testator’s death; and I think the reason for inserting them, for a different purpose already alluded to, sufficient.

It is true, that until the birth of a child en ventre sa mere, at the death of its father, is determined, the fact of its father dying without surviving issue cannot be ascertained : but its death before its birth leaves the failure of issue, in the contemplation of law, at the parent’s death; and the same rule holds in regard to a remainder dependent upon such contingency, which is vested at the testator’s death, subject to be defeated by the birth of a posthumous child;

There is one view of this case, in reference to the time of such failure of issue, which seems perfectly decisive, and to which no answer has been afforded : if the failure ,of issue, referred to in the sixth article, is to occur at the testator’s death, the whole provision, of course, becomes operative; but if it is an indefinite failure of issue, the remainder is void. It seems to have been asssuméd, that the words “ dying without lawful issue,” limited the failure of issue to the death of the testator’s children; this it clearly would not have done before the passage of the Revised Statutes, (Paterson v. Ellis, Ex’r., 11 Wend. Rep. 253 , 671,) but that assumption is placed entirely upon the effect of the statutory provision (1 R. S. 724, § 22) construing the word “ issue ” as those living at the death of the ancestor ; but this cannot control the meaning of the words “lineal descendants,” immediately afterwards used by the testator, and apparently for the very purpose of preventing such construction, being words not mentioned in the statute. He himself interprets the effect of the previous contingencies, by declaring in the broadest terms, “ and thus I should have no lineal descendants.” No power of artificial reasoning or construction can so wrench these words from then-natural meaning or limit them, as to show that it was the testator’s intention that the remainder should take effect before his own line had utterly and entirely failed, unless it be conceded that his own death was the time of such failure of issue contemplated by him.

But it may still be proper to dispose of the views which this case presents, if the failure of issue be held not to be indefinite. It may not, however, be inappropriate to notice preliminarily, that although the child named in the will, has died without issue, under the prescribed age, and after the testator’s death, her share of her father’s estate cannot yet pass to the collateral relatives mentioned in the sixth article; that it does not pass under any provision in the

• it must, therefore, be construed in reference to the intestate share as if there were no other provision in the will. It would be extremely difficult, if not impossible, in such case, to establish that such article was intended to have any effect upon such share; particularly that the ownership conferred by those statutes on the surviving child, was to become a life estate in case she died childless; or what is still more improbable, that the third of such share of the personal property, or'a life estate in one-half of the real estate to which the testator’s widow is entitled, (2 R. S. 96, § 82, subd. 1; 1 R. S. 752, § 1,) is to be taken from her in case of the death of her remaining child without issue, and to be given to collateral relatives, although she would be allowed to retain it against the issue of such child. The result, therefore, is either that this share escapes the effect of the sixth article, or that the consequences before mentioned, legitimately formed part of the testator’s design in such article, in case the failure of issue intended by him therein was, that at the death of his children. It may also be observed, that the surviving child of the testator having reached the age fixed by the third article, is entitled under it to her share of the personal property as absolute owner, unless the sixth article makes such ownership depend on her leaving children at her death.

If the statutory interpretation of “ issue” be not sufficient to reduce the failure of issue to the death of the testator’s children, it is proposed to accomplish the same purpose by a change of words and construction of such substituted words : as the word “ leave ” necessarily and properly means “ have surviving at the time of their death,” the qualification is to be omitted, and “ have” left by itself, but as that word standing alone by long settled construction is

The possible existence of the brother and sister of the testator, who might be equally dear to him as their children, and were nearer and'who could take under the second article of the will, is also ignored; these facts will become important hereafter on the question of intent; at present, it will only be necessary to notice them.

All these changes and results are sought to be justified by their creating a legal instead of an illegal provision, and then carrying out a supposed intent. They will, however, not only be found inconsistent with provisions of the will, with which they cannot be reconciled, except by violence to the language, without any warrant of authority, but it will be seen, also, that there is no intelligible or sensible intent to be gathered from the residue of the will, or from the - language of the article, which would not be better carried out by its entire omission if so construed.

But, not only is the purpose for which such change is to be made not such a one as is justifiable upon any legal principle, but the changes, in themselves, are equally unwarranted, either as to the language or construction. The will itself shows that the testator fully comprehended the force of the word “leave,” and that he did not use it promiscuously for the word “have,” for he employed the former once before in the third, and twice in the fourth article, in its proper sense, for which no other word could be substituted : that sense has always been able to limit the indefinite failure of issue, which would be created by the use of the other word; Paterson v. Ellis, (ubi sup.,) and the difference of it from that of the other word precludes any interchange or substitution of the latter for it. (Doe v. Knowles, 1 Barn. & Ad. R. 324; Cross v. Cross, 1 Sim. R. 201.) Such a change is never warranted simply to convert an illegal into a legal provision. To prevent a provision from failing by reason of uncertainty, or to carry out an otherwise manifest intent, words may be rejected,

The substitution merely of “ have ” for “ leave,”, is, how- ■ ever, not sufficient to accomplish the desired end; the words, “at the time of the death of such children,” or “ at the time of my death,” must be added actually or constructively. It is proposed to do the latter by dividing the process by which, before the passage of the Revised Statutes, courts had carried out the intent «yf a gift in remainder after a life estate to such children as another person might have, that is vesting the estate in those who first came in being, answering the description, and opening such estate to let in those of the same description who came into being afterwards, and not allowing the second part of such process to take effect. The same reason is assigned for this as before, to wit, the prevention of the creation of an illegal estate. But this directly interferes with what the law, as well as reason, has settled to be the intent of the testator in using the phrase in question, and accomplishes what is not such an intent. While such an operation was legal, it was the only mode of carrying out the testator’s intent; when it ceases to be so, one-half cannot accomplish the same end. This is the only reason assigned for giving such efficacy to the word “ have,.” when standing alone. It is not, however, a mere construction. It is, in fact, a limitation of the operation of a word by an event. Instead of taking the whole life of the brother and sister as the period during which the beneficiaries are to come into existence, which is both the popular and the

The other ground of conforming the expression to a manifest intent, is equally unsatisfactory as an explanation of the change. The intent which1 is urged to be so carried out, is contended by the counsel of the respondents to be one 11 to preserve the property of the testator in his own family, and with his own kindred.” Now, I apprehend the intent, to carry out which the language of a provision in an instrument may be moulded by an interpretation, must be one which would not be carried out without such provision, or at least not as well; any design with which such provision is consistent is not enough, it must be such a one as it is an instrument to carry out, otherwise the testator might equally well be supposed to have intended to let things take their natural course. If this sixth article had not been in the will, and his children had died under the age prescribed in the third and fifth articles, and without issue, his brother and sister would have taken all the estate, or if any child attained such prescribed age, all but the personal estate by the law of succession, if they were alive, and their children would have so taken if they were

In the first place, it excludes both the brother and sister of the testator, then some of the children, and finally all their grandchildren, whose parent being the testator’s nephew or niece, died before the testator; it has left one-third of the personal property of any one child dying under the prescribed age, and a life estate in a moiety of its share of the real estate to go to its mother, and the residue of its share to go to its sister, to be again snatched from them, and turned over to the kindred, on the death of the last child without issue; and it has finally made a provision which would clearly have been illegal, if there had been more than two children of the testator surviving him. How such an article can be said to have been made to carry out an intent to keep the testator’s property with his kindred is difficult to be understood; the unreasonable exclusion of some, looks -a great deal more like evidence of a design to take it away from them at least.

It is claimed also that the sharing by all the nephews and nieces of the testator of his residuary property, in the event of his children dying without descendants, is a particular intent subordinate to, and different from a general intent that

If this last result constitute the essence of such particular intent, it certainly cannot be said to be made by the proposed article subordinate to any intent that the kindred should take, but rather an exception from it.

The same difficulty exists, if the point of the distinction be, that all nephews and nieces are to take, for that clearly is equivalent to some of the kindred taking. The error in this case arises from confounding intent not interfered with by a provision with an intent accomplished thereby, which is the only real legal intent of a provision. That cannot be said to be such intent, which remains the same whether the provisions take effect or not. It is the change made which forms it. The intent of a devise in a will, to the son and heir of a testator, merely of a life estate in his real estate, could not be said to be to keep such estate in his own family, nor could it be so predicated of a devise to collateral relatives on the death of one’s own family.

Two other propositions, contended for on the part of the respondents, appear to me equally untenable; the first, to wit, that the testator was not governed by any particular regard for any particular individual, can only be true if a disregard for those excluded by, was not equivalent to a regard for those included in, such provision. The other is, that the taking of the estate by particular individuals was a subordinate matter, whereas the whole essence of the provision, as proposed to be construed, is the inclusion of some and exclusion of others, who otherwise would have taken.

No intent, therefore, imputable to the sixth article, has been suggested which warrants the insertion of the words necessary to sustain the construction proposed to be given, to its provisions now under consideration.

4 A different construction, put forth in the argument on behalf of the appellants, still remains to be considered,

“ If I have no,” as if it were “ I do not have any.” The conjunction connecting the two contingencies, of course, must be construed copulatively to prevent the whole provision from being void, for uncertainty. (Shuldam v. Smith, 6 Dow. P. C. 22.) He declares the result of the two contingencies to be to leave him without lineal descend ants, yet, under the third article he might, upon a child arriving at the destined age, have lineal descendants after his death, who never could take any interest in the personal property thereby given, and he had already provided for the contingencies of a child surviving him. The obstacle to this construction arises from the introduction of the word posthumous, if such include it. The issue of such a child could not fail until after its father’s death, which ' would therefore admit a postponement of the failure of

One interpretation, however, of the sixth article, yet remains to be examined, which altogether ignores the question of .the failure of issue, and rests entirely upon the contingency by which the devisees and legatees, in remainder, are to be determined whenever such failure takes place, or rather upon the fact whether there can be any, at such time, to answer the description in the article. It will be found to avoid all difficulty from any illegality of the provisions, make the provision equal and just, carry out a natural purpose, and be assimilated to other provisions in the will, without changing any word or distorting it from its natural meaning, and only supplying a slight omission of an event to be necessarily considered in construing it. This is accomplished by considering the whole article as only intended to provide for the death of his brother and sister before him, leaving him children and grandchildren. Of course, if only one of them should outlive him, and .he had no lineal descendants, such survivor, and the children of the deceased, would take, by the ordinary laws of succession, as his heirs at law, or next of kin; he has permitted a similar result in the case of any of his children dying after him, while another child was alive. This view leads us to investigate who are to take; these are declared to be children left by a brother and sister, and the children of any such children who might die before the testator; the word “any,” of course, refers to children left and not to all children, because there are no other words to distinguish to whom the word “such” refers, and such clause of substitution admits no grand nephews or grand nieces, except the children of such nephews and nieces as could take

This provision, construing the word “leave” in its natural and ordinary sense, overlooks all nephews or nieces who do not survive that one of their parents who was the testator’s brother or sister, unless they die before the testator and leave children surviving, to take their place; the only combination of circumstances which would prevent such a provision from being unequal and unjust, would be if the testator died before the brother or sister, so that no such nephews and nieces could be born. The clause of substitution makes this more certain, for no parent of a grand nephew or grand niece, whose share the latter was to take, could be in a position to derive such share, under the previous clause, without outliving that one of his own parents who was the brother or sister of the testator. And to enable his children to take he was required to die before the testator. Both could not happen unless the testator outlived his brother and sister. If he did not, no grand nephew or grand niece could take; which would make the provision for them useless. This is not inconsistent with an intent to provide for the testator’s kindred, for the brother and sister, and the survivor of them, if one were dead, with the children of the deceased, would still take by the law of succession; and does not rob the testator’s children of any of the- property vested by the third article, or his wife of what she might acquire by the death of one of his children, to give it to collateral relatives. By "contrasting the different consequences of this article, construed merely as referring to the failure of issue at the death of the testator’s children, without reference to the death of the brother and sister, with those produced by it,

But it may be asked what the testator’s object was in making such a provision? The answer is simple and easy; for the same reason that he bequeathed in the second article of the will, chattels of which the use is thereby given to his wife for life, to his heirs-at-law in case of his

The only reason, probably, why he changed the phraseology from heirs-at-law to the children left by his brother and sister, and the children of any deceased before him, was, that as his brother and sister, if alive, would be' his heirs-at-law and next of kin, he intended, if his death, although he was the youngest, occurred before theirs, and his own line failed, to allow his wife to take her third under the statute of distribution, who might be fully as dear to him as either brother or sister, but if, according to the more natural course of things, he should outlive them, he.might also outlive her, or could make any other necessary provision for her. In any event, depriving his wife of any interest for the benefit of nephews and nieces, is not quite as inexplicable as depriving her and his brother and sister for the same purpose.

It is somewhat remarkable, in this connection, that while in the third article only the residue of the personal estate, excluding that disposed of in the second, is bequeathed, in this sixth article the whole is disposed of, so as to include

The construction last suggested seems supported upon every sound and known principle; it has a specific purpose, it is not unequal, is warranted by rules of legal interpretation, and does not conflict with any previous provision; it must, therefore, be adopted.

I am fully aware that most of the preceding reasoning is applicable only to the personal estate, as the sixth article was mainly intended for that species of property, but in some things, such as the interference with the interest taken by the testator’s wife and child in the share of the deceased child, the exclusion of a brother and sister, certain nephews and nieces, and grand nephews and grand nieces, who might take by the statute of descent, and some others, it is equally applicable; at all events, it is impossible to construe the .provision differently as to the two species of property; the contingencies in which it is to take effect and the beneficiaries must be the same.

It follows, therefore, that as the brother and sister have survived the testator, the devise and bequest in the sixth article is void; this, of course, will make various portions of the judgment given at special term erroneous, and it must be reversed in those particulars. Thus the clause in the first and second part of such judgment, subjecting the estate of the testator’s daughter to any limitation by the sixth article; that in the fourth, making the estate of the plaintiff, Madame Du Bois (Baronne de Courval,) in the land of which her sister was tenant for life, cease on her own death without issue, and that in the eighth, requiring parties having life estates to keep down the interest on the charges on the estate, together with the whole of the fifth, declaring the children of the testator’s brother

By the death of the testator’s child, Elizabeth, the principal of her share of the personal estate lapses into his estate, whereby his widow becomes entitled to one-third, and his surviving child, or her trustees, to two-thirds thereof. (2 R. S. 96, § 83, subd. 1'.) As she died without issue she inherited jointly with her sister her share of the real estate wherein she had a life estate. Her mother -became entitled, on her death, to an estate for life in the moiety so inherited by her daughter, with remainder in fee to her surviving daughter. (1 R. S. 152, § I.)

The accumulations of the share, to which the deceased daughter was entitled, of the current rents and profits of the real and personal estate of the testator, became her personal estate, and must be administered upon before any distribution can be made of it. In such case the mother and daughter would, each be entitled to equal shares. (2 R. S. 96, § 83, subd. 6.)

—The provisions of the will, irrespective of the sixth clause, and as they took effect on the death of the testator, may be thus stated:

‘ First.—As to real estate:

The devise in the fourth section is to his daughter Elizabeth Sarah, for life; and after her death, to the child or children she may leave, to be divided between them in equal . shares, if more than one child, when he, she, or they, may have attained, respectively, the age of twenty-one years.

By the last clause of the fifth section, the provisions of the fourth section as regarded real estate, are to be extended in like manner to any child or children of the devisor, born subsequently to the date of his will:' “He or she to have in equal parts with his said daughter Elizabeth Sarah, a life estate in said real estate, share and share alike, with remainder to their issue.”

Comparing the fourth section with the fifth section, and

Whether the term “issue ” qualifies the term “ children,” or the latter controls the former, is immaterial. Under the case of Chrystie v. Phyfe, (19 N. Y. R. 404,) “ children,” would take as purchasers.

Thus a contingent future estate was created (1 R. S. 723, § 13.) It may be termed a remainder (§ 11), and was created by that name. The issue would take vested estates, as they should successively come into being, should there be more than one; and if but one, that one would take. (Doe v. Ward, 9 Adol. & Ellis Rep. 582; Powers v. Bergen, 2 Seld. Rep. 358.)

Each daughter had thus on the death of the testator, an estate for life, with this contingent future estate, or remainder, in his issue, as they should come into being.

Jls to personal property: the residue was vested in the trustees ; and one moiety for the use and benefit of Elizabeth Sarah ; the other for that of his daughter Mary. Each share vested, with payment postponed, until such daughter arrived at the age of twenty-four years. Each share was to go over to the daughter’s issue, if she should die before the age of twenty-four, leaving issue. The restriction in the third section need not be considered.

With this general view of the operation of the previous clauses of the will at the testator’s death, I proceed to examine the sixth section. It is as follows:

“In case I have no child or children living at the time of my death, or no posthumous child; or in case such child or children should die without lawful issue, and thus I should have no lineal descendants, I give, devise, and bequeath my whole estate, real and personal, to the children whom my brother Robert Ray, and my sister Mary, wife of John A. King, may leave, or the child or children of any who may die before me, (such child or children to inherit only its father’s or mother’s share,) to be divided equally and in equal parts among such children, per capita and not per stirpes, when the eldest of such children shall have attained the age of thirty-four years; and each child who at the time of such division, may be under age, to receive his or her portion on reaching the age of twenty-one years.”

There are five cases comprised in the introductory part of this section. One is that of a child dr children born to him, but none living at his death; another, of such a child or children born to him and having issue, but all dying 'before him; a third, of a posthumous child, dying without leaving lawful issue ; the fourth, of children born to him living at his death, and subsequently dying without issue; and lastly, of a posthumous child dying leaving issue, and such issue dying without issue. These contingent cases are distinct; they would naturally occur at distant periods. It is a reasonable, if not an inevitable conclusion, that the testator had in his mind the occurrence of each case, at a different period.

Thus he looks to the time of his own death, with no child living, clearly meaning no child born, or with no issue of a deceased child living; next, to the time of the birth of a posthumous child, of course, after his death; then, he regards the case of the children born at his death, dying without leaving issue; and again, of a posthumous child, so dying. In each of these occurrences, distinct, and more or less remote, the limitation over is meant to take effect; there would be in each case, none of his lineal descendants;

Again, each of such events might take place during the lives of his brother Robert and his sister Mary, or of the survivor of them, and might take place after the death of both or of one.

It is insisted that the testator intended the devise over to operate only, in the event of the brother and sister dying in his lifetime. This seems to me inadmissible, incompatible with plain language, and with as reasonable a presumption as any other, that he expected they would survive him. He made his brother Robert one of the executors.

It is with more force urged, that he meant to give effect to the limitation over, on his own death, so that the nephews and nieces to take would be those then living, (with children of any pre-deceased nephew or niece,) whether his brother and sister were then dead or living. But the difficulty which I have found insuperable as to this construction is, that he obviously contemplated his own death, under some circumstances, as one event; and other events which would occur at different periods, on which the will would have its operation, for the operation of the gift over. He discriminates periods, when he discriminates as to events. Had he looked solely to his own death, the clause beginning, “ Or in case such child,” &c., would, not have been used. Had he regarded merely the death of all his children issue-less, the last clause would alone have been needed, with some trifling verbal change.

Another construction of the provision, and one which appears to me more plausible than any which can be found to sustain the limitation over, is, that the objects—the nephews and nieces—are defined and fixed at the death of the survivor of the testator’s daughters, without leaving issue.

This construction commends itself for several reasons.

It sustains the limitation over as a valid one, while, upon the version of its depending upon the death of the

It avoids an intestacy which, in the other case, will occur. The counsel for the defendants in his second subdivision of his second point has shown that there might be a time between the death of the survivor of the children and the death of the brother and sister in which this would take place. ¿The court leans to a construction which will avoid such an intestacy. (Leake v. Robertson, 2 Merivale R. 386.)

It fulfils in part another important rule of construction, viz., that the court is anxious to comprehend as many of the apparent objects of the testator’s bounty as, by a reasonable construction of the will, looking to the period of distribution, may be included. ( Walker v. Shore, 15 Vesey Rep. 123, and cases cited in the American edition of Cox’s Cases in Chancery, vol. 1, page 12, note.) There will in this case be comprehended all the nephews and nieces born after the testator’s death, and before the death of the surviving child, as well as nephews and nieces born in the lifetime of the testator.

But the objections which have at last led me to reject this construction are, that it wholly annuls the word leave in its ordinary signification, and requires the substitution of the words, may at that time have, or may then have, or similar words. The testator seems to have appreciated the force of the term leave. In the fourth section he uses this word in its natural full sense, denoting all the children Sarah might leave. So in the third clause he uses the word leaving issue. In this section he employs the phrase, “In case I should have no child or children living,” &c., and then uses the word leave in the clause in question.

Again, this construction would operate to exclude all the children of Robert Ray and Mary King who may have been born between the death of the survivor of the testator’s daughter and the death of Robert or Mary. I think

Mr. Powell (on Devises, vol. 2, p. 303, Law Library, vol. 22, p. 102) says : “ Where a particular estate or interest is carved out, with a gift over to the children of the person taking that interest, or of any other person, it will embrace not only the objects living at the death of the testator, but all who shall subsequently come into existence before the period of distribution.”

Thus, in the case of a devise to A. for life, and after his death to the children of B. the children of B. living at the death of the testator, and those who are born during the life of A. the tenant for life, are entitled; but not those who may come into existence subsequently to the death of A. (This is re-stated in the same language by Mr. Jarman on Wills, vol. 2, p. ÍS.)

Among the cases he cites is Ayton v. Ayton, (1 Cox. Cases, 326,) which is the only one of them I deem it necessary to notice at length. It is full and pertinent. The testator gave the residue and remainder of his real and personal estate to his wife Mary Lee, for her life, and no longer. Upon her decease, he gave and bequeathed them to the children of Mr. John Ayton and his wife Jane, to be equally divided among them, the said Jane Ayton’s children, and not to any children by another marriage of either party.

At the death of the testator and his widow Mary Lee, (the tenant for life,) there were but two children living of John and Jane Ayton; but after the widow’s death three more were born. These three children were excluded from any share in the estate, and it was held to go to the two.

The master of the rolls said: “ So many of the children

Powers v. Bergen, (2 Selden R. 358,) is upon this part of the question important. The devise,was to trustees for the use of the testator’s daughter Eliza, for life, and with remainder in fee upon her death, to the lawful issue of his said daughter, if more than one, share and share alike, and for want of such issue, then to all his grandchildren then living as tenants in common, and to his or their heirs or assigns. The daughter was living and had two children. The estates were thus defined. The trustees had the legal estate during the life of Eliza the daughter—the two children had a vested remainder in fee as tenants in common, subject to open and let in after-born children of their mother, but liable to be' divested by their death, during the life-time of their mother. The grandchildren of the testator (other than the children of Eliza) who should be living at her death, (that of Eliza, the testator being Thomas Poole,) had a contingent estate in remainder, depending upon the event of the death óf the daughter Eliza, without leaving any lawful issue surviving her. Reference was made by the court to 1 R. S. 723, §§ 9, 10, 11, and 13.

These authorities sustain the proposition before stated, that nephews and nieces, born between the death of the surviving daughter, and that of the brother and sister, would be excluded. The moment the objects were fixed by

That children of nephews and nieces dying between the death of the testator and the death of the surviving daughter, would be also excluded, seems the just conclusion. In the cases before cited, especially that from the Tth of Metcalf, the estates were vested, and not contingent. A death of one party before the death of tenant for life, which transferred a vested interest into one in possession, would operate to transmit his share, or it was capable of' assignment, or testamentary disposition—not so, I apprehend when the interest or estate is wholly contingent. It may be that such children would be excluded upon any construction.

I have, from the considerations thus stated, been led to reject the construction which fixes the ascertainment of the objects and vesting of the future estate, in those nephews and nieces who might answer the description at the death of the surviving daughter of the testator.

There can remain but one interpretation—that which ascertains the objects to take, by and upon the death of the brother and sister. This clearly best comports with the letter of the will, and best carries out the apparent intent. He means to say, whenever the event occurs, in any of the contingencies arising under my will, in which a failure of any lineal descendants shall happen, I devise my estate to all the children whom my brother and sister may leave behind them. Their children are then to be the object of his bounty. He makes no discrimination between them, but remembering there might be nephews and nieces dead before him, he includes their issue in his bounty.

This view would be strengthened, if the children of nephews or nieces, dying between his death and that of the brother and sister, could be comprehended. My impression is, they would not be, but I do not think this exclusion can affect materially the construction now given; more are comprehended than can be upon any other con

In Doe v. Knowles, (1 Barn, and Adol. Rep. 324,) the devise was to W. Smith and Mary his wife, and the survivor of them during their natural lives, and then to Mary their daughter, or if more children of Mary, the wife of W. then equally between them, and in case they leave no children, to their heirs and assigns for ever. This remainder, it was held could only become vested when the survivor, who was William, died leaving no children of the marriage; they could not be said to leave children, till both were gone.

In Wells v. Ritter, (3 Wharton’s Rep. 208,) the testator devised to his wife for life, and then to his child or children in fee. If no child should live till twenty-one years of age, then his estate was to be divided between the children of S. and the children of W. The only child of the testator was a posthumous child, who died after the death of the wife, but before twenty-one. It was held that the limitation included children born after the death of the posthumous child.

In Cross v. Cross, (1 Simon’s R. 201,) the residuary estate was given to trustees, to divide the interest between two nieces equally during their lives, and after their deaths, to pay and divide the principal to and among the lawful issue of her said nieces, or of such of them as should leave issue, equally per stirpes and not per capita, in default of such issue to pay the interest to certain persons, &c. One of the nieces died, having had seven children, five of whom only survived her. These five took exclusively. The representatives of the two children who died in their, mother’s lifetime, were shut out.

The important case of Jee v. Audley, (1 Cox. Gas. 324,) deserves consideration. The will was, “ that 1,000/. be placed out at interest during the life of my wife, which interest I give her during her life, and at her death I give the said 1,000/. unto my niece Mary Hall, and the issue of her body lawfully begotten, and to be begotten, and in

John Jee and Elizabeth were living at the death of the testator, had four daughters, and no son, and were seventy years old.

It was held that the devise took in all the daughters who might be born to John and Elizabeth after the death of the testator. There was then-a limitation which would take in daughters born ten years after the testator’s death, and then Mary Hall might die without issue fifty years after-wards ; in which case it would evidently transgress the rules prescribed. The limitations could not be restricted to children living at the time of his death.

In the language of Lord Mansfield, (Cowper Rep. 309,) “when an estate is left on a contingency to the issue of any one, all born before the contingency happens, shall take; none born after.”

The reasoning of Lord Hardwicke, in Ellison v. Airey, (1 Vesey, Senr. R. 115,) involves the same proposition. “ In the case of a remainder,” says the master of the rolls, “the children living at the time the interest vests in possession, are to take.” (1 Cox Ca. 324.) “ Where a gift is

made to children, to take effect- upon the termination of a particular estate, or upon the death of a person, such gift embraces, not only the objects living at the death of the testator, but all who may subsequently come into existence before the period of distribution.” (Denio Ch. J., Kilpatrick v. Johnson, 15 N. Y. R. 325.)

It may be noticed, that in this case, the period of distribution was the period of the vesting of interest. The proposition, I apprehend, is in general more accurately stated, to comprise all who are in being at the period of vesting in interest.

There is a class of cases in which the word “ leaving” has been restricted, and its ordinary signification disregarded, which deserves notice. (Maitland v. Chalie, 6 Mad. Rep. 243; ex parte Cooper, 1 Drew R. 264; in re, Too

The last case will exemplify the principle which pervades them all. Trustees were directed to stand possessed of the clear residue of the estate and effects, and of all accumulations thereof, upon trust, to pay and divide the same equally to and amongst all and every the child and children of his said daughter Elizabeth when the youngest of such children should attain twenty-one. And in case of the death of his said daughter without leaving any child or children, to the sons, &c., of his late sister Ann. Elizabeth had nine children, all of whom attained twenty-one years. She was fifty-seven years old and a widow.

Held, that there was a gift of the residue under which all the children of Elizabeth acquired vested interests, not' defeasible by her death, leaving no children- The gift over, in case of her death without leaving any child or children, was contradictory if the word “ leaving” was to be read literally, and that the word must be read as equivalent to having.

Thus, in these cases, there was an absolute vested interest first created, which was to be divested by adequate words; and those employed were capable of a construction without undue straining, which would preserve the testator’s original and obvious intention. But in the present case we are to ascertain, from all the pertinent clauses of his will, when the tegtator meant his gift over to vest and whom he meant to be included in it.

What is the contingency in this case, when any nephews and nieces may possibly take ? At present the death of Madame de Courval, without leaving issue. And .when are the nephews and nieces, so defined, that the true parties to take are certain, 'and all others inevitably excluded ? Not until the death of the brother and -sister have produced the impossibility of others coming into being.

I am led to the conclusion that the limitation in the sixth clause is an illegal restraint upon alienation beyond the period allowed by the statute, and is void.

1st. The sixth section of the will in question is inoperative and void, because it must operate, either to suspend the power of alienation for more than two lives in being at the death of the testator, which was the creation of the expectant estates intended to be limited (1 R. S. 726, §41;) Amory v. Lord, (5 Selden R. 403;) Griffen v. Ford, (1 Bos. R. 123,137 ;) or it could only take effect at the death of his brother and sister before him, and his own death, leaving no lawful issue him surviving.

2d. The adjudging of such section to be void, does not affect or invalidate any of the previous devises, bequests or provisions of the will in question. Those provisions are distinct from and independent of, the limitations in the sixth section. (Parks v. Parks, 9 Paige (R. 107; Irving v. De Kay, Ibid. 528; Haxtun v. Corse, 2 Barb. C. R. 506.)

3d. Hence those other provisions, so far as they extend, and are legal, (as they all are,) must be carried into effect; and if they have not provided for the entire disposition of the property of the testator, in the events which have occurred since his death, the law of descent or distribution must be resorted to.

4th. Prom the death of the testator, on the 21st day of March, 1836, to the death of his daughter Elizabeth Sarah, on the 2d day of April, 1840, the said Elizabeth Sarah was entitled to one-half of the net income of the personal property of the testator, and to one-half of the net rents and profits of his real estate; and the plaintiff Mary, now De Oourval, was entitled to the other half of the same.

5th. Upon the death of the said Elizabeth Sarah, the amount of such income and rents then due her, fell to, and is to be divided between the said Mary, now Madame De Oourval, and Mary Rebecca Ray, mother of the said Elizabeth Sarah, in equal parts.

6th. On the death of the testator, a reversion of the real estate devised to his daughters respectively,' contingent upon the death of either without issue during the life of the other, passed by descent to his two daughters as

1th. From the death of said Elizabeth Sarah to the 9th day of February, 1856, the date of the referee’s report in this case, the said plaintiff Mary (and her trustees, under the marriage settlement), are entitled to receive three equal fourth parts of the net rents and profits of the whole of the testator’s .real estate; and the defendant Mary Rebecca the other one-fourth part.

8th. In relation to personal property : The one-half part of the half to which the said Elizabeth Sarah was entitled, (the limitation over to her issue failing,) devolved absolutely upon her said mother, Mary Rebecca; and the other half thereof to her sister Mary, now Máry de Courval. (2 Rev. Stat. 96, § 15, subd. 6.)

The net income and interest of all the personal estate of the testator, from the death of the said Elizabeth Sarah to the date of the report in this cause, is to be divided among, and is payable to, the said Mary Rebecca and the said Mary de Courval, and her trustees, in the proportion of one-fourth thereof to the former, and three-fourths thereof to the latter.

9th. The one-fourth part of the personal property of the testator, remaining after discharging what may be found due to the said Mary Rebecca Ray and Mary de Courval, and her trustees, upon the principles above stated, belongs, absolutely, the one-fourth part thereof to the said Mary Rebecca, and the three-fourth parts thereof to the -said Mary de Courval and her trustees.

10th. The real estate of the testator now vests or is limited as follows, to wit: The one undivided fourth part in the defendant, Mary Rebecca Ray, for life, with remainder to the said Mary de Courval, in fee; another equal

The judgment should be modified according to these views.

—The intention of the testator, that in the event of a failure of his lineal descendants, with the death of his own children his estate should go to his nephews and nieces, is clear.

The first question is this : Do the provisions, which prescribe the time at, or event on which, the nephews and nieces are to "take, make the will void, as involving an illegal suspense of the power of alienation ?

The sixth clause declares first, that if the testator, should “ have no child or children living at the time of his death; and no posthumous child,” his estate shall go to his nephews and nieces. The terms of this clause favor the idea that the testator supposed it possible, that if his child or children died before him, and if he had no posthumous child, his lineal descendants would be extinct at the time of his death. But the sixth clause shows that he contemplated the possibility of his own death before that of his own child or children, and that he intended to provide for that contingency. The sixth clause declares, second, that “ in case such child or children should die without lawful issue, and thus I (the testator) should have no lineal descendants,” the estate shall go to his nephews and nieces.

The testator did not contemplate that a posthumous child would be born in his lifetime, and as he provided for the case of a'posthumous child, and the event of the failure of issue of such child, he clearly intended to provide for the event of a failure, of his own lineal descendants, to happen after his decease, as well as for the happening of such a contingency in his own lifetime.

The fact that it was possible, when he published his will,

The power of alienation cannot be suspended for a longer period “ than during the continuance of not more than two lives in being at the creation of the estate, except,” ¿so. .(1 R. S. 723, § 15.)

The time of the creation of an estate, the title to which is acquired by a devise by its owner, is the time of the death of the testator; the will then takes effect, and within the meaning of the rule now under consideration, the estate is then created. (2 R. S. 57, § 5 ; 1 R. S. 773, § 1; 1 R. S. 726, $ 41.)

At the time of the testator’s death he had but two children living. The limitation over was, by the terms of the will, to take effect on their death, if they left no lawful issue them surviving. The power of alienation was therefore suspended only during the lives of two persons in being at the creation of the estate, viz., Elizabeth Sarah, and Mary Rebecca Ray, daughters of the testator. It has been expressly adjudged in this court, that lives in being at the death of the testator are alone to be considered, even where a will by its terms continued the estate in trustees during the lives.of three children of the testator whom it named, one of such children having died before the testator. (Griffon v. Ford, 1 Bosw. 123 and 136, 137, 140.)

By no possibility could the power of alienation, by reason of any cause existing at the time of the creation of the estate, be suspended longer than during the lives of the two children living at the testator’s death, if the limitations over can then take effect.

If these views be correct, then it follows that the devise is not void by reason of an illegal suspense of the power of alienation, prior to the time when the estates in remainder are to vest, provided that they vest absolutely on the death

The will is dated on the 22d of March, 1834, the day on which Elizabeth Sarah is proved to have been born.

If it may be supposed that he contemplated it as probable that his own children would survive his brother Robert Ray, and his sister Mary King; and if it may also be supposed that he had in his mind the idea, that he too might survive them, then the language employed in the sixth clause would be natural and appropriate. Supposing his brother and sister to be dead at the time of his own death, and that he had such a contingency in mind when drawing his will, then the expression “ to the children whom my brother Robert Ray and my sister Mary, wife of John A. King, may leave, or (and) the child or children of any who may die before me,” would be clear, and the intent designed to be expressed by it would be obvious.

Supposing him to have had in-mind (when writing the words “ or in case such child or children should die with- > out lawful issue, and thus I should have no lineal descendants,”) the idea, that his own children in that event, would probably have outlived his said brother and sister, then the provision giving his estate to such child or children as such brother and sister may leave, would be equally clear, and the intent equally manifest; and the words ‘‘may leave,” would have effect, as designating children left by his brother and sister, at the time of their death, and would have been used according to their natural and obvious meaning.

On either of these suppositions the intent was, that the estate should vest in the nephews and nieces living at the

But the eighth clause furnishes some evidence that the testator did not, while writing his will, contemplate that his brother .would die before him. By that clause the brother is named as -an executor or trustee to whom (with others) the property is devised in trust, and as one of the persons by whom the provisions in trust were to be executed.

And I think there is much force in the proposition that the clause of the sixth article, viz., “ or in case such child • or children should die without lawful issue, and thus I should have no lineal descendants,” contemplates and refers to the contingency of the death of his own children and of their issue, in the life of their parents, subsequent to his own death; as,the words “ such child or children” include," by express declaration, a posthumous child, and provide for the extinction of its issue in the lifetime of such parent if there should be issue.

The testator evidently intended, that however many children he might have, and might leave surviving him, that his nephews and nieces should not take unless all of his own children died without any lawful issue of their own surviving them.

. Whether he intended that all of his own children should die, without leaving issue surviving them in his lifetime, as a condition to the limitation' over taking effect, is a different question.

But assuming that he did not intend that, and that such a construction should be rejected, then it is clear that he did not intend the limitation over to take effect unless all of his own children died without leaving lawful issue surviving them.

On the latter construction, he has made no provision as to what is to be done with the share of either of his chil

By the third clause, the personal estate bequeathed to Sarah Elizabeth, was to be paid into her hands on her attaining the age of twenty-four years.

By the fifth clause, the same thing is to be done with his daughter Mary’s half of the personalty. She was born on the 9th February, 1835, and consequently is over twenty-four years of age.

By the fourth clause, the real estate- is devised to Elizabeth Sarah, with all the rents, &c., “ to have and to hold for her use, benefit and behoof, for and during the term of her natural life, and after her death, to the child or children she may leave.”

By the fifth clause, the provisions of the fourth section, as regards real estate, “are to be extended in like manner to any child or children of mine born subsequently to the date- of this my last will, he, she or they to have equal parts with my said daughter, Elizabeth Sarah, a life estate in said real estate, share and share alike, with remainder to their issue.

Suppose the testator’s daughter Mary, when she dies, shall leave a child or children, her surviving: then, so far as the will speaks upon the subject, what is to be done with Elizabeth Sarah’s half of the real estate ?

The sixth article is the only remaining clause which can be resorted to, to ascertain the intent of the testator.

By the first clause of that article, viz., “ In case I have no child or children living at the time of my death, and no posthumous child,” a contingency is designated, on which the limitation over is to take effect, provided the word “or” which follows it, is to be read as it is written; or if that be not so, then both of said alternative clauses must be read, to ascertain the single and sole contingency on which the limitation over is to take effect.

Did he mean, that if he had no children living at the time of his death, the limitation over should take effect, although such children might have lawful issue then living?

This first clause of the sixth article to have, when read by itself and alone, any meaning or efficacy, must mean, that his own children must have died before him, without having had, or without leaving lawful issue, and thus construed, it would mean no more than the next succeeding clause imports, unless that provides for the case of their dying subsequent to his death without leaving lawful issue, and the first clause for their dying before him, without leaving lawful issue.

And assuming the second or alternative clause to provide for such a contingency, then the words, “ and thus I. should have no lineal descendants,” would refer to the time of the death of his last surviving child, and refer to that. date, as the one at which a failure of his lineal descendants would occur, and as the time which he intended to designate .by the words “ should have.”

If he had in mind such a contingency, and a contingency to happen after his own death, as the one on which the limitation over was to take effect, then who are the persons designated by the will to take ? Suppose his own children have died without issue surviving them. His widow has been provided for by bequests made in lieu and satisfaction of her dower.

The persons designated as the ones to take the estate, are “ the children whom my brother Robert Ray, and my sister Mary, wife of John A. King, may leave, or the child or children of any who may die before me.”

It is difficult to conjecture why he should give to children of a nephew or niece dying before him, and not to the children of a nephew or niece dying after him, if he con' templated that the limitation over might not take effect until after the death of his own children surviving him. And if he intended to provide for such a contingency by the second or alternative clause of the sixth article, it is

But he has excluded both, if the sixth article is to be construed as designating, as the nephews and nieces who are to take, only those who might be living at the time of his own death, including the children of such as had died before him.

If the limitation over would be valid in law, on construing the words “ may leave,” as referring to the time of the brother’s and sister’s death, it seems to me that we should find no warrant for wresting from them their natural meaning, and substituting other words which would import those left at the time of the testator’s death; or at the time of the happening of the contingency on which the limitation over is to take effect.

The words “ may leave,” according to their natural meaning, import, as the time to which they refer, the death of the testator’s said brother and sister. (Doe v. Knowles, et al., B. & Ad. 324 ; Cross v. Cross, 1 Simons, 201.)

I find no word or words which, to my mind, indicate an intent that only the nephews and nieces living at the time of the testator’s death, should take, except the provision in favor of the children of nephews and nieces dying before him, to the exclusion of the children of those dying after him, and that intent, if it can be collected from the will, will exclude living nephews and nieces born subsequent to his own death, although born before the event happens on which the limitation is to take effect.

Giving effect to the words “may leave,” according to their natural and adjudicated meaning, will admit all the living nephews and nieces (to be ascertained by the designated event) to a participation in the estate, if effect can be given to the sixth clause of the will as thus construed. Even that would exclude children of the nephews and. nieces who died after the testator, and only them; the other excludes all nephews and nieces born subsequent to his

And the substituted words “ may then have,” must be held to refer to the time of the testator’s death; and if such substituted words, or the words “ may leave,” (the words actually used,) refer, in- the connection in which they are found, to the time of the testator’s death, then it must be conceded, as I think, that the event described' by the clause of which they are a part, viz., the event of the death of •“ such child or children without lawful issue, and thus I should have no lineal descendants,” is an event, as there described, which is to occur prior to his own death.

My mind is, therefore, brought to the conclusion that the sixth clause, by its fair meaning, either makes the death of his own children, in his lifetime, without issue surviving them, a condition on which the limitation is to take effect; or if that construction is inadmissible, that it designates as the nephews and nieces, who are to take on the failure of his lineal descendants, the children whom his brother and sister “ may leave ” at the time of their death.

Either construction defeats the future estate. The first, because the contingency has failed on which it was to take effect. The second, as suspending the power of alienation during the lives of four persons in being at the time of the testator’s death, viz., his two daughters and his brother and sister.

Assuming this conclusion, to be correct, it remains to be considered whether the whole will is void, or only the limitations over ; and whether Elizabeth Sarah’s half of either the personal or real estate is to be treated as undevised estate, at and after her death, or whether her heirs take it as such.

If the whole will be void, then the widow takes one-third of the personalty, and the daughters the residue absolutely in equal shares, and they also inherit the real estate in equal shares, subject to the widow’s right of dower.

If the devisees and bequests to the testator’s children

The half of the personalty given to the testator’s daughter Mary, is hers absolutely, as she has attained the age of twenty-four.

The half of the personalty given to Elizabeth Sarah, if to be treated as unbequeathed,-from and after her death, or in other words, if only the use or income of it for her life (as she died under twenty-four) is bequeathed, then the principal, subject to such use for her life, was distributable, one-third to the widow, and to each daughter one-third. (2 R. S. 96, § 75, sub. 1.) In that view, one-third of that half would go to the mother, one-third to Madame de Courval, and the other third would go equally to the mother and to the sister Mary, under 2 R. S., p. 96, § 75, sub. 6.

But I incline to "the opinion that the third and fifth clauses (inasmuch as the testator left two children) gave one-half of the personalty absolutely to Elizabeth Sarah. In this view, that half of the personalty and its accumulations became, upon her death, the property equally of her mother and of her surviving sister, and should be accounted for as such. (2 R. S., p. 96, §'75, sub. 6.)

Only a life estate in the one-half of the real estate was given to Elizabeth Sarah. The remainder, as to such one-half not having been disposed of, vested at the testator’s death in his two children as his heirs at law.

A moity of his one-half (viz., the part which Elizabeth Sarah took as heir of her father) on Elizabeth Sarah’s death (or one-fourth of the whole) went to her mother for life, and the reversion to her sister Madame, de Courval. ■

The rents and fincóme of the one-half of; the real estate in which M. de Courval has a life estate, and which upon her death, leaving issue, will go to such issue, she is entitled to during her life. If she dies, leaving no issue surviving her, the reversion of that one-half will descend, accord

The judgment must be modified according to these views, and the accounts having been modified accordingly, the judgment, as modified, should be affirmed.

—From the general scope of the will of the testator, Richard Ray, the construction, validity, and effect of which is now before us, and also from its specific details, it is quite apparent that he desired and intended to provide that his children should enjoy his estate during their lives, (subject to the provision made for his widow, and the bequests' to his cousins,) and that their issue should succeed thereto, if there should he such issue to enjoy it; and that if there should be no such issue, then that the estate should go to children of his brother and sister, and to their issue. In other words, that his own descendants should enjoy his estate, and failing such descendants, it should pass to descendants of his brother and sister. There is a plain attempt on the part of the testator, to- secure that result, and in view of what appears to me his obvious intention in this respect, the inquiry is, how far has he, by his will, secured the object he had in view ? Next, may the will so operate in conformity with the language employed by him ? and thirdly, does the will qualify the general design that the estate should, in certain contingencies, pass to the children of his brother and sister, by limiting it to some only of such children in any possible event, or if it pass at all, must it go to all the children who, at the death of his said brother and sister, may be living, whether born before or after the death of the testator, and whether born before or after the happening of the contingency upon which he directed such estate to pass to his brother’s and sister’s children?

The answer to the first question is contained in the answer to the other two, and the validity of the will may depend upon the answer to the last question, for, having given life estates to his two children, and made the contin

1. The primary object which, in pursuance of the general intention of the testator, he designed to secure, viz., the enjoyment of his' estate by his children and their issue, he did secure by the third, fourth and fifth clauses of the will by which his personal estate was to be held in trust and for theuse of his children, and to be paid to them on their attaining, the age of twenty-four years respectively, and in case of their death before attaining that age, leaving issue, then to be paid to such issue; and by which, also, all his real estate was devised to his children (respectively) for life, with remainder to the child or children which they might respectively leave, to be had and held to his, her, or their use forever.

Under these clauses the issue of his children, respectively, living at his death, would take the remainder of his real estate in fee, and by express limitation after the termination of the life estates given to such children respectively.

And as to his personal estate, the shares of the children would pass to them absolutely at the age of twenty-four, if then living, (subject only to a qualification, not now material, in case of marriage without the consent of his widow,) and nothing could divert it from them, or from their issue after them, unless the provisions of the sixth section, to be hereafter noticed, operate to divert the personalty to his nephews and nieces in case his children die without leaving issue.

2. The design of the testator to preserve his estate in his own family in case his children left no issue, i. e., in ■ case by the death of his children without issue there should be no lineal descendants of the testator living, was sought to be further secured by the sixth clause in the will.

In this clause the testator contemplated and meant to provide for the exigencies upon which his estate should pass to descendants of his brother and sister on failure of lineal descendants of himself.

That failure would happen, in case at his death there were no persons in being who could take under the third, fourth, and fifth clauses of his will, or in case there were such persons then living, but they should all die without leaving lawful issue. Or in case children .born to the testator should die before his decease leaving no lawful issue.

This event he provided for in two modes :

First:—“In case I have no child or children living at the time of my death.”

Second.—“In case.such (i. e: all my) children should die without lawful issue;” “and thus I should have no lineal descendants,” then he gives, &c.

The event upon which the estate was to.go over, viz., failure of lineal descendants, might happen in either of those modes, and those he provides for. The contingency was failure of lineal descendants, and this would not happen if his children died in his- own life, leaving issue, and such issue would take, if living, upon the just construction of' the previous clauses in connection with the sixth.

It is argued that by this language he provided only for the failure of lineal descendants (having neither children nor issue of children) at the time of his death, and that, .therefore, as he' left children, the event never happened, and never can happen, upon which the estate was to go over, and the estates given by the previous clauses became,

To my mind, the conclusive answer to. this suggestion is, that he provides for the death of a posthumous child without issue, which, by our statute, means without issue living at the death of the ancestor of such issue, viz., the posthumous child. A posthumous child could not die in the lifetime of the testator leaving issue, neither could such child die in the lifetime of the testator. Provision therefore, for the possible death of such a child without issue provides for an event which can only happen after the decease of the testator.

The ordinary meaning of the language, moreover, indicates that the testator meant in case all of his children— “such, children,”—the converse of no children nor posthumous child, i. e., any child or children he then had, or might have, including any posthumous child, should die without issue.

Again, our statute gives, the interpretation of dying without issue, and makes it mean in case such children should die without lawful issue living at their death. (1 R. S. 724, § 22.)

And the words, “ and thus I should have no lineal descendants,” confirm and define this intention of the testator, that failing his own children, and failing the issue of any children, then, and in that event, the estate should go over to descendants of his brother and sister.

The event upon which his estate was limited over was one which might have happened at his death, or which might happen on the subsequent death of all his children without issue. ' The first exigency never arose, as he left children him surviving. The second may happen, and whether it would happen could not be determined, until the death of all his children. This alone did not restrain the alienation beyond the period allowed by law. Had he left more than two children this condition might, by itself, have defeated the will since the limitation would have then depended upon more than two lives in being, until the

3. But it is argued that even if the event upon which the limitation over is to operate,- is one which may take place after the death of the testator, and which will happen (if ever) at the expiration of two lives in being, at the death, i. e., at the death of Madame de Courval, still the limitation is void because it cannot be known to whom the estate is to pass on the happening of the contingency, until after the death of the testator’s brother Robert and his sister Mary, and so there are two more lives which must expire before the estates will vest absolutely, and -before an absolute fee in possession can be conveyed. (1 R. S. 123, §§ 14, 15.) That the children of such brother and sister cannot take until it is known which of them will survive their -parents, and so the future estate limited over may still remain contingent, notwithstanding the termination of two lives in being at the death of the testator, upon the expiration of which the limitation was, by the language of the will, to become operative.

Assuming for the present, that the inference from this construction of the testator’s will is unavoidable, I proceed to inquire whether the construction is itself correct.

The question is, to whom, by the true meaning of the will, was the estate to pass under the limitation over? The event upon which it was to go over being ascertained as above.

This depends upon the point of time at which it could be ascertained, who were to take under the limitation.

The testator says, in case the events happen, by which he “ thus should have no lineal descendants,” I give, devise

The persons so designated must be either :

1st. Children of his brother and sister, living at the death of the testator, and the issue of any who may have died before him.

2d. Children of his brother and sister, living at the happening of the contingency on which the estate was to go over (i. e., the death of the testator’s children without issue) and the issue of any'such first named children, who died before the testator.

3d. Children of his brother and sister, living at the happening of the said contingency, and the issue of any such children who may have died at anytime theretofore, before or since the testator’s death ; or

4th. Children of his brother and sister, who may survive them, and so literally be left by them, and the issue of such of their children as may have died before the testator; or

5th. Children of his brother and sister last named, and issue of any children who may have died, whether before or since the testator.

Now, in relation to either of these constructions, which includes, among those who are to take by the terms of the will, issue of children of the brother and sister who die after the testator, the plain and exclusive designation of those who may take as issue by the terms, “ the child or children of any who may die before me,” seem to me to forbid a construction which would allow any children of those who die after the testator, to take as devisees. Such construction is not within the words of the will, and it is not necessary nor rendered probable, in order to carry out the general design of the testator.

The construction which the whole language seems to me to best warrant, is that which determined, at the death of

Having, at the time of his decease, nine nephews and nieces, (children of his said brother and sister,) his full purpose might be accomplished without going further:

But still more strongly, the designation of those who were to take as children of nephews and nieces, by the words “the child or children of any who may die before me,” indicates that he meant that it should be determined at .his death -who should take under the limitation over. For if he designed that any other period should be taken to determine who the persons were to whom the estate' should pass, and did not mean to confine it to persons whom the testator himself had seen or known, why did he confine the devise over among grandchildren of his brother and sister, to those whose parents died before him?

The limitation, to children of my brother and sister,'and the child or children of any who may die before me, indicates that it was the time of his own death at which it was to he determined who should take under the -gift to descendants of his brother and sister, and. that he meant by the

It must, however, be conceded that the use of the word “leave,” in this same clause, “to the children whom toy brother Robert Ray, and my sister Mary, the wife of John A. King, may leave, or the child or children of any who may die before me,” if that word must be taken in the sense of leave at their death, is fatal to this construction. But I do not deem it necessary so to read it, nor that the testator so used it. Indeed, the very designation of the children of deceased children who were to take, is inconsistent with that reading; they were those only whose parents died before the testator, they were to be those living at his death—and the general' purpose of the testator is, in this particular, I think, sufficiently clear to indicate that he used the word in the sense of the word have, as a then present fact—and so read, the whole will become harmonious, conformable to the general design of the testator, and not inconsistent with any particular intent which appears' in any part of the will.

Whether or not, at the moment of penning the will, the thought was passing in his mind that he should survive his brother and sister, and led to his employment of a word which was not apt to express his meaning, (if they survived him,) the whole sentence does not indicate to my mind that he meant to make their death before himself, any condition of the devise or of its construction; nor that he meant, by the use of that word, to postpone, the determination of the children who should take, to a period so remote that his whole purpose in regard to his nephews and nieces might be thereby defeated.

It is'to be assumed, as a rule of construction, that the testator knew the law, and if-the language he employs be susceptible of a reading consistent with the law, we ough t to assume that he so used it, and the intent to fix the time of his own death as that at which the persons who should take, as descendants of his brother and sister, were to be ascertained, seems to me so clearly indicated, that in the

The testator, in this sixth clause, has created the difficulty by expressing himself with greater conciseness than clearness, and yet, I think, the intent is apparent.

In this view of the construction of the will, the objection that the will is invalid in respect of the limitation over by the sixth clause, wholly fails; and (no child of the testator’s brother or sister having died, leaving issue, in the lifetime of the testator) the judgment appealed from should be affirmed, except so far as it declares that the . estate and property which, upon the death of Madame de Courval without issue, vests in the children of Robert Ray and Mary King, vests in those children living at the happening of the contingency, and that it is subject to let in after-born children. In those particulars it should be modified so as to declare that, in the event of the death of Madame de Courval without issue, such estates and property are by the said will limited over to the children of the said Robert Ray and Mary King, who, were living at the death of the testator.

The foregoing view of the construction of the will in question, not being in accordance with the opinion of my associate, brother Robertson, and the case having been submitted to four of the justices, I add a few observations upon the question, whether, by the construction of the will, the estate was not limited, on the death of Madame de Courval, to such children of Robert Ray and Mrs. King, as should then be living, and the issue, if any, who should die before the testator ?

First.—It is obvious that if this be the true construction, then, as before, the will is valid, and the limitation over good. For, in-that view of its meaning, the estate will vest absolutely at the' death of the survivor of the testa

Second.—If we depart from the time of the testator’s death, as the period indicated for ascertaining those who are to take under the limitation over, I find no words of the will indicating the happening of the contingency as the time to which the word leave or have is to refer.

And there is, therefore, greater difficulty, not only in gathering from the language itself, that the testator meant to designate the children which his brother and sister should have, but also in saying, if that construction should obtain, that it did not open to let in after-born children, which would be equally fatal to the validity of the will, as if it were held that it could not be determined until the death of Robert Ray and Mrs. King, who should take, and they should be living at the death of Madame de Courval.

I still prefer the former construction. Nevertheless, if my brethren agree that the time of the death of Madame de Courval is the period at which the persons who are to take, is definitely and finally settled, and that they are those who are then living, the will is sustained. The result would not, as I perceive, affect the management of .the estate henceforward, during the life of Madame de Courval, otherwise than the view I have above taken, and • I should be disposed to concur, for the purpose of a determination which the parties have apprised us they wish to present to the court of last resort for review and adjudication.