I am now satisfied that when this case was here before (7 N.C. 558) the facts then stated were sufficient for a proper decision, and that it was quite immaterial whether the daughter Polly died during the life of William or not; the life estate given to her being a circumstance relied on to tie up the general words, dying without issue. (298) On the question now presented, I am of opinion, in the event which has happened, that Stephenson, the lessor of the plaintiff, takes nothing in the lands in question; for a precedent estate becomes a precedent condition, or not, to an ulterior limitation, according to the intent. Thus, if an estate is devised to A and his issue, and if he should die without issue, then to B, and A should die leaving issue in the lifetime of the devisor, whereby the estate never vested in A or his issue, B would take, although A left issue; for, by whatever means A's estate was out of the way, whether by commencing and expiring, or by not commencing at all, and whether he left issue or not, if that issue could not take, B, by the plain intent, shall take; for the postulatum is, is the estate out of the way? and not how it became out of the way. So, if a man devise his land to the child with which his wife is pregnant, and if that child should die without issue, then to B, and no child should be born, his wife not being pregnant, B would take. In each of these cases the words give way to the intent, there being nothing to control it. But put this case: a man, having no child devises, devises that if his wife should be delivered of a daughter (the wife being pregnant), that his daughter should have his estate during her life, and after her decease to go to his nephew, and a son is born. The words here do not give the estate to the nephew; he is only to have it afterthe death of the daughter, and there was no daughter to die. The Court, in this case, will make the estate to the daughter a condition precedent — that is, they will not vary the natural meaning of the words to carry the estate to the nephew, and leave the son totally unprovided for. We do not want authorities or precedents for this, for they are to be found running through all the cases, either openly avowed or occultly governing the decision; and were there artificial rules intended to aid in establishing the intent (for at last it is nothing but a question of intention) which would lead to a different result, it would (299) become us to examine them well, and be assured that the rules were genuine, and that we understood their proper *Page 151 application. Let the principles governing the cases before stated be applied to the one before us: suppose no child had been born, the intent then would have justified a departure from the words, and carried the estate to Stephenson; for, upon the death of William, without issue, there would be no child but was provided for in the manner the testator designed. Polly, his only surviving child, would divide with the nephew as the testator intended. But a daughter is born, and we are called on to put a construction on the words different from that which they naturally bear, to aid a nephew and leave a child entirely destitute — a child who never had offended, and which the testator recognized as his by directing that, should it be a son, he should divide the lands with William. I am aware that if the limitation to Stephenson is not sustained, the one to Polly must fall. Be it so; it is better that the lands should remain in William, in fee simple, and descend to his heirs, and Polly be deprived of her limitation, than that Stephenson should take, and a daughter be excluded by constructions only. There are no sufficient grounds afforded to vary the words of the will, and on the will rests the plaintiff's title. Were I to hazard a conjecture why no further disposition was made by the devisor in case a daughter should be born, and not a son, I would say that, having by the first part of the will given the whole of his lands to William, which were to be divested only by the birth of a son, the ulterior limitations were all bottomed on that event; and if a son was born he did not expect a daughter also at the same birth; if a son was born, which excluded a daughter, he was willing that, on failure of his male descendants, his nephew should share with his daughter Polly, for in that view of the case there could be but one of his issue to take.
But the strong basis of this decision is, that the claims of the after-born daughter are stronger than the claims of (300) the nephew, and we will not vary the common meaning of the words to let in the claim of the nephew, and thereby leave the daughter entirely destitute. In other words, the devisor has, by thevery language of the will, made the birth of a son a condition precedent, and there is no evidence of intent for the Court to dispense with the performance of the condition; indeed, the birth of a daughter furnishes evidence the other way. I think that the defendant is entitled to judgment.