The case turns upon the construction to be given to the second clause of the will of Albert Terhune. The first duty to be performed by the court is, to ascertain the intention of the testator; the next is, to carry out that intention, so far as the rules of law will permit. In regard *579to the first part, there is but little difficulty. It is quite apparent that the testator intended to give the estate to his four sons and to their children ; and in case any of the sons should die without children living at the time of his death, that the survivors should take the share of the deceased son; and in case all the sons should die without children, then that the children of his daughters should have the estate. The events contemplated by the will have happened. One son after the other has died without children, until all are dead, leaving no issue to take. Hence the question to be resolved, To whom does the estate now belong ?
The counsel for the plaintiffs contend that the four sons took an absolute.estate in fee simple, free from all limitations and contingencies. The defendant’s counsel, on the other hand, contend that the estate to the sons was subject to a contingent determination in favor of the survivors, in case of the death of any of them without leaving issue living at his death. All agree that the language of the devise would have made the primary estate an estate tail, prior to the statutes abolishing entails. The act of the 23d of February, 1788, which governs this case, provides, that in all cases where any person, independently of the act, if no act had been passed, would become seised in fee tail, such person shall be deemed and adjudged to become seised in fee simple absolute. Hence the four sons, by virtue of this statute, instead of becoming seised in fee tail, according to the terms of the will, became seised in fee simple. In other words, the statute converts the fee tail into a fee simple.
What then becomes of the contingent estate limited over to the survivors, in case of the death of any son without lawful issue? Is that also cut off by operation of the statute, or does it survive as an executory devise ? This is a grave and important question, not only as it affects these parties, but more especially as it regards those great principles which lie at the foundation of the law of devises. The slightest departure from, them may produce incalculable mischiefs in disturbing and unsettling of titles by will; by which, perhaps, one half of the *580real property in this state is transmitted from generation to generation. I am unable to find any decision of this question in the courts of this country. It was adverted to, but not decided, in Grout v. Townsend, (2 Hill, 554.) In that case, the testator devised to his daughter and the heirs of her body forever, with a limitation over in case of her death without such heirs. Bronson, justice, in delivering the opinion of the court, says: “ Whether the limitation over to the children of Nicholas Vischer, in the event of Rachel’s dying without heirs of her body, was or was not good by way of executory devise, is a question which, in the event that has happened, can never arise, and we need give ourselves no concern about it.” When the same case was decided in the court of errors, (2 Denio, 336,) Senator-Porter delivered the opinion, in which he says, “ the limitation over is void, because it was to take effect on an indefinite failure of issue.” Both of these eminent jurists seem to consider it an open question.
From the best consideration I have been able to give the subject, I have arrived at the conclusion that the statute merely affects the primary devise in tail by turning it into a fee simple, and leaves the secondary disposition to operate by way of executory devise. 1. Such a construction will carry out the manifest intention of the testator; which courts are always bound to do, unless it conflicts with some established rule of law. 2. This construction is consistent with, and is required by, settled principles of law in relation to devises. The limitation, over, on tiré death of any son without issue, to the survivors, is on a definite failure of issue, and therefore there is no legal objection, on this score, to its being an executory devise. (Fosdick v. Cornell, 1 John. 440. Anderson v. Jackson, 16 Id. 382. Jackson v. Christman, 4 Wend. 277. Jackson v. Thompson, 6 Cowen, 178, Wilkes v. Lion, 2 Id. 333. Lion v. Burtis, 20 John 483. Cutler v. Doughty, 23 Wend. 518 Ide v. Ide, 5 Mass. 500.)
A fee may be limited, by executory dévise, aftér a fee. (4 Kents Com. 260.) If, therefore, the testator had, by the primary, devise, given the estate to his four sons in fée simple, the *581limitation over would have been good as an executory devise. Nay, it is éonceived that if the testator had used the very words of the statute, and given the estate to his four sons, and declared that they should be seised in fee simple absolute, and followed it with a limitation over to the survivors, in case of the death of one without leaving issúé, the estate would be subject to the contingent determination. This proposition is too plain to require authorities to be cited. If, then, the testator could not, by using the phraseology of the statute, cut off the limitation, how can the statute do it 1
The statute merely converts the fee tail into a fee simple ; cutting off only such remainders as are incident to, and inseparable from, an estate tail. Now, in this case, the limitation over would not, under the English law, have been a remainder after an estate tail. It was, at all events, an executory devise to become operative on any son dying without living issue. (Driver v. Edgar, Cowp. Rep. 379. Fearne on Rem. 66.) It is true, that a common recovery suffered by the tenant in tail before the happening of the event, might bar the estate depending upon the event. (4 Kents Com. 270.) Nevertheless, it is clear that an executory devise in fee could bé limited after either a fee simple or a fee tail; and therefore it was not an estate peculiar to either. Hence it follows that whén the statute comes in and turns the fee tail into a fee simple, it cuts off all remainders and limitations inconsistent with a fee, but it leaves unimpaired all limitations and contingent estates which are consistent with a fee simple. The statute, as it were, alters the reading of the will. It inserts the term fee simple whereéver the testator has used words of entailment. By the light of 'this lamp, the clause in question would read, “ I give unto my four sons all my real estate, to them and their heirs, share and share alike, and if any of them die without lawful issue, his share is to go to the survivors.” This language would clearly give a fee simple to each of the sons, subject to a contingent determination on his dying without issue, by which the fee would pass to the survivors.
It is to be borne in mind that the very object of the institu*582tion of executory devises was to support the will of the testator; and that by its very definition, “ it is a limitation of a future contingent interest in lands, contrary to the rules of limitation of contingent estates in conveyances at law.” (4 Kent's Com. 263.) It is also to be remembered that the statute abolishing entails, had for its object the destruction of perpetuities resulting from entailments. Now the reason of the law was never applicable to executory devises; for it is indispensable in those limitations that the estate should be limited to vest within 21 years after a life or lives in being. (4 Kent's Com. 271.) That such was the view taken by the legislature, at the last revision, is apparent from the fact, that while exterminating perpetuities, they enacted that where a remainder in fee should be limited upon any estate which would be adjudged a fee tail, according to the law of the state as it existed before the abolition of entails, the remainder shall be valid as a contingent limitation upon a fee, and shall vest in possession, on the death of the first taker without issue living at the time of his death, (1 R. S. 722, § 4.)
There is nothing whatever in the act of 1786, to show that the legislature was hostile to, or in any way intended to interfere with, executory devises. On the contrary, the decisions for the last sixty years manifest a leaning towards this mode of fulfilling the intentions of testators. It is true, as contended by the plaintiff’s counsel, that the power of alienation may be suspended longer by an executory devise, than by an estate tail, if the tenant in tail chooses to suffer a common recovery ; but this has nothing to do with the question. The evil aimed at by the legislature was not the suffering of recoveries; but it was the suspension of the power of alienation, by not suffering a recovery, but by keeping the estate alive for several generations, until all the issue in tail became extinct.
If, then, executory devises were originated for the purpose of giving effect to the intentions of testators; if they are equally consistent with estates tail and estates in fee simple; and if the statute of 1786 was not directed against them, I am unable to discover the slightest reason for cutting off the estate so limited *583by the will in question. On the contrary, I think we are bound to give effect to the intention of the testator by declaring the limitation good as an executory devise ; and that a different construction would be an unwarrantable interference with the designs of the testator, not called for by any rule of construction or principle of law.
If I am correct in this conclusion, then the whole estate became vested in John, on the decease of his three brothers without issue. The wills of the deceased brothers could not dispose of their estates, for the simple reason that the event which gave efficiency to the will, also terminated their interest, viz. death.
The question then arises, who takes the estate on the death of John ? The will declares, “ if all my sons shall die without lawful issue, then the children of my daughters shall have all my real estate to them their heirs and assigns forever.” Whether the testator actually intended that the children of the daughters should take whenever the issue of the sons should fail, or only in case of such failure at the death of the last son, may admit of some doubt. But there is no doubt that, by thfe settled principles of law, this is to be deemed a limitation after an indefinite failure of issue, and therefore void. (Anderson v. Jackson, 16 John. 382, and cases there cited. 4 Kents Com. 476, and cases cited in note.) Courts are at liberty, in last wills and testaments, to effectuate the intention of the testator, if by law it can be done. But in ascertaining what that intention is, the construction which has been put upon like words, and the artificial rules, by which it is styled and fixed in the authorities, are to be inflexible guides where they distinctly and pointedly apply. (Littlebridge v. Adie, 1 Mason’s C. C. Rep. 234.) It follows, therefore, that on the death of John Terhune intestate, the premises in question descended to his heirs at law. Maria Lott, being one of twelve heirs at law, entitled to share equally in the estate, is seised of one equal twelfth part of the premises in question, and the plaintiffs are entitled to recover accordingly.
Judgment for plaintiffs.