The Jury having prayed the advice of the Court, Judgment was given for the Plaintiff, and the Defendant appealed. The words dying without issue, by a long course of Judicial interpretation, means, (560)per se, an indefinite failure of issue, and a limitation thereon is void as an excutory devise; but if, from expressions in the will, it appeared to be the testator's intent to tie up the contingency to the period allowed by law, to-wit, a life or lives in being, and twenty-one years and nine months thereafter, to wait for the full age of a posthumus child, those indefinite words have been restricted by such expressions, and the devise over held good. In this case, upon the failure of the issue of William, and the child of which his wife was pregnant at the date of his will, part of the lands given to them were to be rented out for the benefit of his daughter during life, and after her death, to her children; the other lands at the same time to pass to the lessor of the Plaintiff. This, it was alleged, tied up the contingency to the prescribed period; for, it is said, if the devise take effect at all, it must be during the life of the daughter. Allowing this argument to be sound, and the devise over good, (which in this case may be very much doubted,) the Plaintiff cannot recover, for want of shewing that the issue of the sons failed during the life of the daughter; for it is by tyeing up the devise over, so as to take effect in her life time, that it can be held good. It must be read thus to make it good, "And if my two sons should die without issue living, my daughter Polly," then, c. for although it *Page 350 be true, that the validity of the devise is to be tested, not by the event, but must be tied up by the words of the will, so that if it happen at all, it must be within the prescribed time, yet to claim under it, it must most assuredly be shewn, that the contingency has happened within the period prescribed, or as the testator has directed. In this case it not appearing that the issue of William failed during the life of Polly, (for it is not found, whether she be dead or alive) the lessor of the Plaintiff has not shewn any title.
It is taken for granted, that this will was made (561) since 1784, when the act passed converting estates tail into estates in fee, by the operation of which act, John Stevenson, the lessor of the Plaintiff, would have taken an estate in fee, and by which the case would be much more favourable for the Plaintiff; as then it would have appeared that the contingency happened within the period prescribed, and it is also a much stronger circumstance to tie up the indefinite failure of issue, as there is no ulterior limitation of the lands devised to him.
The case of Jones v. Spaight was quoted at the Bar in the argument of this case; but its principles are not involved in this case. It was decided on great consideration, and with a full knowledge of all the decisions on the subject. I then entertained not a doubt of its correctness, and its accordance with the principles of English decisions. I have frequently since reflected on it, (for it was a little complained of) and have weighed it maturely since the argument in this case. My opinion of its correctness remains unshaken.
The judgment of the Court below must be reversed, and judgment rendered for the Defendant.
Cited: S. c. 8 N.C. 297. (562)