Gray v. Bridgeforth

| Miss. | Apr 15, 1857

Lead Opinion

Handy, J.,

delivered the opinion of the court.

This case depends upon the construction to be given to the will of David Bridgeforth deceased, made and probated in the State of Tennessee, where the testator resided at the time of his death. The clauses of the will necessary to be considered in determining the present case, are as follows:

“ Item 2d. It is my will that my executrix and executor give out of my estate!'to those of my children herein named, to wit, Robert S. Bridgeforth, Thomas 0. Bridgeforth, Henry 0. Bridge-forth, Martha M. Bridgeforth, Minerva D. Bridgeforth, Elizabeth M. Bridgeforth, and Maria H. Bridgeforth, each and every one, when they become of age or marry, one horse, bridle, and saddle, one bed and furniture, and fifteen hundred dollars in money or property, so as to make them equal to James W. Bridgeforth, Mary E. A. Phillips, and John B. Bridgeforth.”

“Item 5th. It is my will, if any of my children named in the second item of this my last will and testament, shall die without heirs, then the property hereby devised to them is to be equally divided among the balance of my children named in the said second item, or the heirs of their bodies.”

In May, 1851, Minerva, one of the children of the testator named in the second item of the will, intermarried with the appellant, and died in June, 1854, leaving no children or issue, and leaving her husband surviving her. And afterwards this bill was filed against the appellant by the surviving brothers and sisters of Minerva, named in the second item of the will, and the children of a deceased brother and sister therein named, claiming the property bequeathed to Minerva, in virtue of the second and fifth items of the will.

It is insisted, in behalf of the appellant, that the limitation over in the fifth item of the will, under which the appellees claim, being upon an indefinite failure of issue, is too remote, and therefore void; by reason of which, an estate in fee remained to Minerva under the second item in the will. On the contrary, it is insisted on the part of the appellees, that the limitation, under which they claim, is valid, and that upon the death of Minerva without leaving lineal descendants, her share of the estate vested absolutely in her surviving brothers and sisters named in the second item, and the children then living of such of them as might be dead.

The will having been made in the State of Tennessee, where the testator resided and died, the construction of it, and the rights of the parties depending upon it, must be determined by the law upon the subject as it is. declared by the proper court of that State; and as the questions involved have heretofore received the consideration of the Supreme Court of that State, we have but little else to do than to ascertain what have been the decisions of'ihht bouiVii\ tielWtion to them. .. j- v"

We will proceed to examine the terms of the fifth item'' of the will, and to ascertain their legal import according to the rules upon the subject which have been sanctioned in Tennessee. It is agreed that without the provisions of this part of the will, the appellant’s wife took an absolute estate in fee, in the property bequeathed to her in the second item of the will; and the question is, what control had the fifth item upon that estate?

The first point of inquiry is, what construction is to be given to the words “die without heirs,” in the fifth item, the contingency upon which the limitation therein expressed was to take effect ?

It has been frequently held by the Supreme Court of Tennessee that although the words “ dying without issue,” if they stood alone in the will, must be taken in their technical sense to mean an indefinite failure of issue, yet that any accompanying words or clause or circumstance in the will, indicating that the general words were used in the sense of dying without issue living at the time of the death, will control their meaning. Williams v. Turner, 10 Yerger, 289; Booker v. Booker, 5 Humph. 508; Bowman v. Tucker, 3 Humph. 650; Bramlet v. Bates, 1 Sneed, 572.

The accompanying words in this will are fully within this rule, and show clearly that the testator intended the limitation over,' to take effect immediately on the death of any one of the named legatees, leaving no lineal descendants. The provision is, that if any of his named children “ shall die without heirs, then the property hereby devised to them is to be equally divided among the balance of my children named,” &c. Here the contingency upon which the estate limited was to vest, “if any of his children named should die without heirs,” is distinctly stated; the time at which it is to take effect is plainly shown, “.then,” &c., at the death of any child; the persons to take, are clearly designated, “ the balance of his children named, or the heirs of their bodies.” It is most manifest that the testator did not intend by the words “ die without heirs,” heirs generally, for he immediately limits the estate over to “ the balance of his children” (which can only mean the surviving children), who would have been the heirs of the deceased child dying without issue, thereby showing that he was acting in contemplation that the child would die leaving general heirs. And it is therefore clear that fay “ dying without heirs,” he meant dying without children or lineal descendants.

In several of the cases above cited, the words used in this will, or words of the same import, are held to control the force of the words “ dying without issue,” or “without heirs,” and to exclude the idea of an indefinite failure of issue. Thus a limitation to the surviving children upon the death ‘of one of the testator’s children, is held to be a definite restriction, within the time allowed by law. So the terms equally to be divided between the survivors, show that the division was intended to be made in the lifetime of the survivors, and of course the estate would clearly vest, not only within the period allowed by the rules of law, but immediately on the death of the child holding the life estate. Lewis v. Claiborne, Booker v. Booker.

So far then as the estate limited to, and claimed by, the surviving brothers and sisters of the appellant’s wife is concerned, we think it clear that by the law of Tennessee, it must be held to be a valid executory devise, which vested in the survivors immediately on the death of their sister leaving no children, as their absolute property, and subject to no further limitations.

Is the disposition then that the property should be equally divided among the balance of the children named, or “ the heirs of their bodies,” void, by reason of the remoteness of the persons to take under these last words ? And this depends upon the construction to be given to these words, “ or the heirs of their bodies which is to be determined by the sense in which the testator used the words, to be collected from all the accompanying clauses and circumstances rather than by their technical import. Loring v. Hunter, 8 Yerger, 29. The question is whether the testator intended the limitation over, of the estate of the deceased child, to take effect and vest absolutely in persons living at the time of the death of such child.

In the first place it appears to be clear that the testator intended that the estate limited over should vest, and the rights of those who were to take, become fixed, at the death of the child dying, and whose estate was the subject of the limitation. The language is, if any of the named children should “ die without heirs,” “then” the share should be equally divided, &c. If there could be any doubt whether the word “ then” referred to time, or was intended'as a condition, the accompanying words directing an equal division among his surviving children, would show that it had reference to the time, as well as to the condition, upon which the division was to be made. The words “ heirs of their bodies,” could not therefore be held to extend to heirs indefinitely, and without reference to time ; and the intention of the testator, as manifested by the entire provision, could only be effectuated by interpreting them to mean “ children or lineal descendants” of the deceased surviving child named in the second item of the will. Thus, if Minerva died without lineal descendants, leaving all her brothers and sisters surviving her, they took her share of the estate absolutely, and the entire provision of the will, so far as her share is concerned, was satisfied. If afterwards each child died successively, leaving lineal descendants, his share vested absolutely in such descendants ; but if any one of them died leaving no such descendants, his share immediately vested in his surviving brothers or sisters, and the lineal descendants, then living, of any deceased brother or sister who may have previously died. And if all the brothers and sisters but one, died leaving children, upon the death of that last survivor, without lineal descendants, his share immediately vested absolutely, in the lineal descendants then living of his deceased brothers and sisters. Beyond that period the-limitation could not possibly extend; and as the share of the deceased child dying without children, was to be equally divided among the survivors absolutely, it is clear that the limitation was not intended to be postponed beyond the lives of the takers in being, at the death of any of the named children of the testator.

This view of the subject, we think, is fully supported by the decisions of the Supreme Court of Tennessee. The cases above cited hold, that the words “dying without issue,” may be explained by accompanying clauses, and restricted to mean, without issue living at the time of the death of the first taker. And such words, in their general and technical sense, certainly as strongly import an indefinite failure of issue, as the words under consideration. It is also held by that court, that the words, “heirs of their bodies,” when the context of the will justifies it, and shows such to be the testator’s intention, must be taken to mean children. Evans v. Wells, 7 Humph. 568; Loring v. Hunter, 8 Yerger, 29; Hickman v. Quin, 6 Yerger, 96.

These words therefore, cannot under the law of Tennessee, be construed to import a limitation upon an indefinite failure of issue. Nor can they be held to create an estate tail, by cutting down the fee, bequeathed in the second item of the will, to an estate tail, and thereby vest the fee under the operation of the statute of Tennessee in the first taker. Lewis v. Claiborne, 5 Yerger, 368. Both these positions proceed upon the assumption, that the words must be taken in their technical import, and are not to be controlled by accompanying words, showing a different intention; which is in opposition to the decisions in Tennessee, and the entire weight of modern authorities.

Upon a consideration of the principles settled in Tennessee, touching the merits of this case, we cannot doubt but that the limitation over, under the fifth item of this will, is a valid executory devise, to which the appellees are entitled.

The decree is therefore affirmed, and the cause remanded, and the defendant below required to answer within sixty days.

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Dissenting Opinion

Smith, 0. J.,

delivered the following dissenting opinion.

This controversy grows out of a will made and probated in the State of Tennessee, where the testator was domiciled, and where he died. All the parties claim under the will. Its construction, and their consequent rights under it, must hence be determined with exclusive reference to the laws of that State.

I do not profess to be well acquainted with the laws of Tennessee, particularly with that branch of her jurisprudence with which we have to deal in deciding this controversy. But the questions presented by the record before us, have been the frequent subject of adjudication in her courts. These questions respect the validity of a limitation dependent upon a failure of issue. And one of her learned judges, in a very recent case, has said, that “the subject had been exhausted in their own cases, and nothing more remained to be said upon it.” Guided by the light thus shed, and assisted by the learned and ingenious arguments of counsel, we cannot fail to reach a satisfactory conclusion. The controversy turns upon the construction to be put upon the fifth clause of the will. The clause is in these words: “ It is my will, that if any of my children named in the second item of this, my last will and testament, shall die without heirs, then the property hereby devised to them, is to be equally divided amongst the balance of my children named in the said second item, or the heirs of their bodies.”

In the second clause the testator directs, that his executrix and executor shall give out of his estate to those of his children therein named, to wit, Robert Gr., Thomas 0., Henry C., Martha M., Minerva D., Elizabeth M., and Maria H. Bridgeforth, each and every one of them, when they become of age, or shall marry, one horse, bridle, and saddle, one bed and furniture, and fifteen hundred dollars in money, or property, so as to make them equal to James N. Bridgeforth, Mary E, A. Phillips, and John B. Bridge-forth.

There is no controversy about the import of the word “ heirs,” in the fifth clause of the will, preceding the devise over to the balance of testator’s children, “ or the heirs of their bodies.” It means, manifestly, heirs of the body, or lineal descendants, and not the heirs general of the several devisees. If the latter were the import of the word “heirs,” no doubt could be entertained, that under the law of Tennessee they took an unqualified estate in the property devised. The limitation in that case being dependent upon a general failure of heirs, would be, according to all the decisions, void for remoteness.

Upon this construction the appellant acquired, in virtue of his marriage with Minerva D. Bridgeforth, the absolute title to the property in controversy. There would hence be no ground for dispute. But, as this is clearly not the proper construction, the ulterior limitation was made to depend upon the dying of any of the legatees named in the second clause, without issue, or heirs of the body. The question, then, to be determined is, whether that limitation was to take effect upon an indefinite failure of the issue or heirs of the body of the immediate devisees, or upon a failure of such issue or heirs, restricted to the death of the party dying, or to some period of time within the limits allowed for executory devises.

The words “ die without issue,” or “die without heirs,” have an “ artificial legal meaning, and per se are taken to indicate an indefinite failure of issue.” 1 Sneed’s Rep. 554. It is not questioned that this is the construction uniformly applied by the courts in Tennessee to these expressions, taken alone, or where by no super-added word or phrase, an intention is indicated, to restrict the legal meaning to a failure of issue at the death.

In the construction of wills, the great object is to ascertain the intention of the testator. And the courts always give effect to such intention, when it can be done consistent with the rules of law. This principle is not less consonant to reason, and consistent with the dictates of political justice, than it is favored by the courts. If a man, permitted by the law, make a disposition of his estate by last will and testament, the objects of his solicitude and bounty are as much entitled to have his will, or true intentions, in regard to the property, carried into effect, as the testator himself was, to invoke the assistance of the law to protect him in the possession and full enjoyment of the property while living. The principle is a dictate of judicial fidelity to the law, and justice requires a faithful compliance with it by the courts. The reasons which prescribe the rule define the extent of its operations. The same principle, which requires the courts to give such a construction to a testament as will prevent the intention of the testator from being defeated, if it can be done without violating the law or its policy, demands that neither the law nor its policy should be evaded or violated under the pretext of sustaining the presumed intention of the testator. It would have been well for the jurisprudence of England and of this country if this principle had been applied with the wisdom and fidelity which we are entitled to expect from courts of justice.

The judiciary of Tennessee, following the lead of the courts at Westminster, have not been singular, in their astuteness, in seizing upon any circumstance, however slight, in a will, especially a will of personal property, to justify a restricted construction of words, to which the law has attached a fixed technical meaning. The controlling motive is to prevent the intention of the testator from being defeated. The effect, in all cases in which the restricted construction is adopted, is to exclude or evade an ancient doctrine of the common law recognized there to be in full force, and one which is most congenial to the spirit of American institutions, thereby suspending, for the time prescribed for the ulterior limitation to take effect, the power of alienation in the first taker; and thus creating a perpetuity, in the face of the Statute of 1784 abolishing estates in fee tail, the policy of which would seem to be to relieve the property of the commonwealth from the fetters of entailment. But .it is not our province to comment on the policy of the law of Tennessee, but to ascertain the law and its policy, as expounded and declared by her courts, and to enforce them in the decision of the case before us.

It is not controverted that a limitation of an estate, upon the contingency of the first taker dying without issue or heirs, is too remote, and therefore void.

If, therefore, the words, “ if any of my children, &c., shall die without heirs,” in the fifth clause, “stood alone” as in such case, according to their “artificial legal meaning,” they would import a general failure of issue or heirs, there could be no question as to the invalidity of the limitations over. But, it is settled beyond controversy, by the decisions, that any superadded words indicative of an intention to confine their meaning to the time prescribed by the law for a good limitation, will control the legal construction which would otherwise attach to them, and save the limitation from destruction. We have, then, to inquire as to the effect of the words, “ to be equally divided amongst the balance of my children, or the heirs of their bodies.”

It seems to be settled by the decisions in Tennessee that the words “surviving,” or words of like import, when used in conjunction with language expressing a dying without issue, are always restrictive of the technical construction. In Booker v. Booker, 5 Humph. 505, these words, “surviving children,” say the court, “ are very expressive of the testator’s intention. In the event contemplated, the estate devised to each child is to be equally divided between the surviving children.”

And, as it was evident the term “ children” was used in its legal and appropriate sense to signify the immediate offspring of the testator, it was held, that a definite failure of issue was intended, for the reason that the testator contemplated an event, that is, a division amongst his immediate surviving offspring, which of necessity must take place within the lifetime of some one of them.

In the will before us, the term “ children” is manifestly used in ^appropriate sense to signify the immediate offspring of the testator. And, by the reference which is made to the second clause of his will, it is clear that the testator not only used the term in the proper legal sense to designate his immediate offspring, but also as descriptive of the individuals who stood in that relation to him, and for whose benefit the limitation over was intended. If either of his children named in the second clause, should die, &c., then over to the “balance of his children” therein named. It does not admit of doubt that the word “balance,” in this clause, means precisely what the word “ surviving” would impart, if used in its stead. The concluding words of the clause, “ or to the heirs of their bodies,” render it still more certain that the testator meant “surviving children.” For it is certain, that it was not his intention that the “heirs of their bodies” should take, if, when the contingency happened, the “balance” of his children named in the second clause were surviving.

If we look, therefore,' at the limitation, as it respects the children or immediate offspring of the testator, the case is identical with that of Booker v. Booker, above cited.

But in the event that all of the legatees, named-in the second clause, save one, should die in succession, leaving “heirs of their bodies,” and this last one should then die without issue, the heirs of the bodies of the legatees first dying, would be entitled under the will. The question hence arises, whether the limitation, as to the “heirs of their bodies,” must, at all events, take effect within the limits allowed by the law for executory devises; as it is not to be controverted that the limitation over could only take effect as an executory devise, and not as a remainder.

The utmost limits allowed by the law of Tennessee, for executory devises, is a life or lives in being, and twenty-one years and the fraction of a year, sufficient to cover the period of gestation.

And it is not controverted that a limitation upon a contingency, which, by the terms of the will, may not happen within that period, is bad; the event, upon the happening of which the estate is to vest, must take place within the allotted time, or the limitation will be void for remoteness.

In considering this question, it is important to bear in mind that the will does not provide a double contingency, or two distinct and independent contingencies, the limitation upon either of which maybe void, without affecting the validity of the other.

The case of a single contingency is presented, on the happening of which, the limitation over was to take effect, and vest first in the children, or immediate offspring of the testator; and secondly, in the heirs of their bodies, if none of such children or immediate offspring were living. And as it would be absurd, at the least, to say, that the contingency described in the will, means a definite failure of issue, and at the same time imports an indefinite failure of issue, it is not to be questioned that if the limitation as to the testator’s surviving children, is valid, it must be equally valid as to the heirs of their bodies; and if it is void as to the latter, it is equally void as to the former.

The words of the clause describing the contingency, if they stood alone, according to their fixed legal meaning, import an indefinite failure of issue. But this technical meaning is not so inflexible, that it may not be controlled by superadded words or expressions, from which it may be fairly inferred that they were not used according to such import. And we have seen that the associated words in the clause are sufficient, if confined to the testator’s immediate offspring, to restrict the dying without issue, to a dying without issue living at the time of the death. But it would be absurd and illogical to hold, that because the testator contemplated an event, that is, the division of the shares of any of the legatees who might first die, without issue, amongst the survivors, which if it occurred must take place within a lifetime in being; and which, therefore, implied that he intended a definite failure, in regard to his immediate offspring; he must also have intended to limit the property, as to the heirs of their bodies, upon a dying without issue, living at the death, or within the period allowed.

The words of the clause referring to the testator’s immediate offspring, do not express his whole intention. We must look to the whole will, to all of the language of the clause, and especially to the words which express his wishes in reference to the “ heirs of the bodies of his children,” who might be dead when any other one of them should die without issue.

The general intention of the testator would seem to be too plain to be misapprehended. He manifestly intended, that 'the property bequeathed should not go out of the family. Hence, why attempt to restrain the children from disposing of the property given to them in his will, and direct that upon the death of either of them without issue, his share should go over to his brothers and sisters, who survived him ? Why direct, that if upon the death of any of his named children, without issue, his share should go to the heirs of their bodies, if none of the balance of his children were then living ? For this is undoubtedly the construction of the fifth clause.

In the face of this clear intention can it be maintained, that the testator intended that, if either of his children should die without issue then living, the share of such child should go to his surviving brothers and sisters, and that he did not intend that the pi'operty bequeathed should go over, if the child dying should leave issue,. although such issue should die the day after ? Again, can it with any show of reason be maintained, that the testator did not intend that if the last surviving child should die, leaving a child, that upon the death of such child, the share bequeathed to its father should go to the “heirs of the bodies” of the “balance” of his children, instead of passing as it might do into the hands of strangers to his blood ?

Now what word or expression is there in the fifth clause, referring directly to the limitation to the heirs of the body of the testator’s children, which could control this general intention, or in other words, which imply that the testator intended, in regard to them, a definite failure of issue ?

The words “or the heirs of their bodies,” it is admitted, should be construed with the addition of the words “to be equally divided,” occurring in the previous member of the sentence. It should be read then, “ or to the heirs of their bodies, to be equally divided amongst them.”

Now if the words “heirs of their bodies” are held to designate a class of persons, who would be entitled to take as a class at any period, whenever there should be a failure of issue, it will not be pretended, that they are restrictive of the technical meaning. So far from it, if thus construed, they would constitute a strong reason for holding that the testator used the words, expressing the contingency, in their appropriate legal sense.

But it is said, that these words, as they are employed in the will, are not to be tínderstood as words of limitation, but as words of purchase; not as a designation of a class of persons to take from generation to generation as heirs, but as descriptive of the individuals constituting a class, who under the contingencies specified, would be entitled to take as purchasers.

If the limitation over had been to the surviving children and the heirs of their bodies, there would be little room for doubt, according to the cases in Tennessee, that the word “ heirs” here, should be construed a word of limitation, and not a descriptio persona-rum. But as the limitation to the heirs could not take effect, unless the devise over to the surviving children had failed by reason of their death, there is not a shadow of doubt that they could only take as purchasers.

The words, “ heirs of their bodies,” therefore designate the individuals who are entitled to take in the character of purchasers.

It is laid down by respectable authority, that the natural meaning of these words is children, and if there are none, grandchildren. Keyes on Chat. 70. This construction is frequently given to the words “heirs of the body,” when it is necessary to give effect to the plain intention of the testator, which would be defeated if they were to receive the legal meaning attached to them. And it is certain, that in devises of personal property the language of the courts in Tennessee, if not the facts of the cases decided, sustain this interpretation. Hickman v. Quin, 6 Yerger, 96; Loring v. Hunter, 8 Ib. 29; Evans v. Wells, 7 Humph. 559.

Then conceding that the testator meant “ children,” or the immediate offspring of the several legatees, and that he intended to exclude their lineal descendants in the remoter degrees, it remains to be ascertained, whether by the terms of the devise the contingency upon which the limitation to these persons would vest, was to happen, if it took place at all within the allotted time ?

Unless we assume the very question in contest, that is, that the testator intended a definite failure of issue, there is no word or expression, however slight, in the clause, from which it is possible to infer, that the testator intended the limitation to vest at all events during the lifetime of any of the legatees. On the contrary, when it is borne in mind that the devise over to the “heirs of their bodies,” if any of the legatees were living when the dying occurred, could not take effect, it is manifest that the very opposite was contemplated.

The words, “dying without issue,” have a twofold meaning ; the one signifies a dying without issue at one’s death, and the other a dying without issue whenever such issue fails. Targett v. Grant, Gribb Eq. R. 149. An indefinite failure of issue means a failure of issue whenever it shall happen, sooner or later, without any fixed, definite, certain period, within which it must happen. 16 John. R. 400. A person is therefore said to die without issue whenever his issue or lineal descendants become extinct. Hence, unless we again beg the question, and start out with the assumption, that a definite failure of issue was intended, there is nothing in the will upon which it is possible to raise even an implication that the testator contemplated that the last surviving legatee would, when the failure of his issue occurred, be living contemporaneously with the lineal descendants of his other children.

This seems too evident to admit of debate. Eor if the preceding words, “ to be equally divided,” be read in connection with the words, “the heirs of their bodies,” which conclude the sentence, it is clear that an event was contemplated, which could not by any possibility take place until after the death of all the parties named in the second clause of the will.

The share of the legatee last dying could not go to the “ balance” of the testator’s children, for the obvious reason that none of them would be then surviving. Such share would vest in the “heirs of the bodies” of the children who had previously died; a division amongst whom, of necessity implies the performance of an act subsequent to the death of all of the testator’s children named in the second clause. Now conceding that by the “ heirs of their bodies” is meant the children or immediate offspring of the testator’s children, upon what circumstance described, or upon what expression employed in the will is it possible to found the presumption that he intended the limitation to take effect only in the event of a dying without issue living at the death ?

The word “ then” immediately following the word “ heirs,” in the fifth clause, is relied upon, which it is said is an adverb of time, referring to the death of any one of the parties named in the second clause, and fixing that event as the time when the limitation over was to take effect. But it seems to be well settled in England that in the limitations of estates and framing contingencies, it is merely a word of reference, and relates to the determination of the first limitation in the estate, when the contingency arises. Biggs v. Burley, 1 Br. Rep. 190; 2 Ib. 75, 77; Beauclerk v. Dormer, 2 Atk. 307. In the case last cited, the limitation over was to a party in esse. It was nevertheless held by Lord Hardwicke not to have the effect, to restrict the dying without issue, to a dying without issue then living. In the ease before us, the limitation over to the heirs of their bodies, was not to persons in existence when the will was made.

There is, therefore, less reason for giving to this word the effect contended for. And we may add, that not a single case has been cited or found in the Tennessee Reports, where the operation insisted on has been given to this word, unless in connection with other expressions, as in the case of Loring v. Hunter, 8 Yerger, which showed clearly that it was not simply a word of reference.

It is perfectly certain that the expression “ to be equally divided,” referred to the “ heirs of their bodies,” cannot have the effect of giving a restrictive meaning to the words “ dying without heirs,” unless a division amongst them, if it take place at all, must of necessity occur within the lifetime of some one of the parties named in the will, or within twenty-one years thereafter.

A single illustration will, at the same time show, that such is not the case, and demonstrate that the limitation over to the “ heirs of their bodies” is too remote, and therefore void.

Let it be supposed that'all of the legatees named in the second clause were dead, leaving issue of their bodies, except Minerva, the wife of the appellant, who had then died, leaving issue, which survived her for twenty-five years, and then died without issue. Under the express terms of the will, the children or immediate offspring of the legatees dying before Minerva, in such case would be entitled to her share. Such is undoubtedly the import of the will, unless we assume that a definite failure of issue was intended. But what has been above said shows conclusively that there is nothing upon which that assumption can be based. And as the limitation might with perfect consistency to the terms of the will, take effect at a period beyond the time allowed by the laws of Tennessee, it was void; consequently the property bequeathed vested absolutely in the first takers. ITerice the appellant in virtue of his marital rights acquired the absolute title to the subject-matter in controversy. Most of the cases cited by counsel for the appellees, upon examination will be found, either not to conflict with this opinion, or to decide some point not material to the question before us.

The case of Hickman v. Quin, 6 Yerger, 96, much relied on in the argument, grew out of a will made in Virginia. “ The will of Benjamin Goodrich (says Judge Catron) vested a life estate to the slaves in Amy W. Lanier, and the remainder in the heirs of her body. This, in Virginia, was a lawful devise to her children.”

The case of Brooke v. Croxton, 2 Grat. 506, was decided in the Court of Appeals of Virginia; and was, of course, determined with reference to the statute, which gives to the expression, “ die without issue,” “ die without heirs,” &e., a meaning directly opposite to that which is admitted to be the fixed technical construction of the same phrases in the State of Tennessee.

And the cases of Loving et al. v. Hunter, 8 Yerger, 4, and Evans v. Wells, 7 Humph., decide that the words, “heirs of the body,” may he held to mean “ children,” and hence, when employed in that sense, are not words of limitation. These cases prove what is admitted, that these words, that is, “heirs of their bodies,” in the fifth clause of the will, import “ children,” or the immediate offspring of the several legatees under the will.

Upon questions so frequently the subject of legal discussion and judicial examination, as the questions presented in this ease have been, in the courts of Tennessee, it would, at the least, be unreasonable to expect that there could be perfect uniformity and consistency in the decisions. There is, however, in reference to the chief questions involved in this case, much more apparent than real conflict in the decisions. And after a careful examination of the cases, I am satisfied that if the conclusion at which I have arrived is not sustained by all of them, it is at least in accordance with the decisions in those cases which have been the best considered, and therefore entitled to the greatest weight. The cases of Polk v. Faris, 9 Yerger, 208; Bowman v. Hicks, 3 Humph. 648; Kay v. Conner, 8 Ib. 624; Kirkpatrick v. Woodrum, 2 Swan, 218, clearly sustain this view of the subject.

Having come to the conclusion above stated, it follows that, in my opinion, the decree of the vice-chancellor should be reversed.