I. The rule that, in the construction of wills, they are to be expounded so as to pursue "as far as possible the intention of the testator, is, in our law, universally recognized. In the language of Coke, the intention is the pole-star to guide the judges; but, it is also conceded, with equal unanimity, that this intention must be collected from the language of the instrument—not from any extraneous reports and evidence concerning it, except in the instance of a latent ambiguity; and, where it does not clearly and with reasonable certainty disclose the intention, the court must "have recourse to the rules of strict legal interpretation, and must be exclusively guided by them. The construction must not depend upon probabilities, upon the private belief, the conjectures, or the speculations of the judges, however plausible or. ingenious, or however conducive to a benignant result; but it must be derived from the instrument itself—not from a fragment, but the whole of it j so that the words may stand together, without repugnance or contrariety. Hoes the will now before us, taken as a whole, clearly and satisfactorily disclose the intention of the testator in relation to the interest devised to his daughter Margaret Thornton Mackaness, afterwards Mrs. Ludlow, so as to dispense with the necessity of conjecture or speculation ?
If it is affirmed that the employment of the technical words of inheritance, in the first clause of the article, is conclusive proof of his intention, may it not be affirmed with equal if not greater force, that the three limitations over, in language *225equally positive, disclose quite a contrary intention, with the additional advantage that they are subsequently declared 1
It is again affirmed that he distributes other real estate among his daughters, who were married, in express terms during their natural lives, while he makes use of words of inheritance only in the devise to his daughter Margaret. But, if by giving to the limitations over, in the fourth article, their full force, the same interest would be given substantially to his daughter Margaret, that he has confessedly given in other articles to his other daughters—that is a life interest—may it not be affirmed, with quite as much plausibility, that this discloses an intention to place his three daughters, and their respective children, on the same ground, and that it was nothing but the technical verbosity or the obtuseness of his lawyer, which caused any variation in the language of the will.
I confess that I cannot discover any thing in the diction or tenor of this instrument to afford me any unquestionable assurance of the intention of the testator, respecting the devise to his daughter Margaret. I may form a belief; I may surmise ; I may indulge in conjecture approximating to the truth ; but this the law, for the wisest reason, does not permit—for the same reason, indeed, that it leaves as little as possible in the administration of justice, to depend upon the caprice or mere speculation of its dispensers and interpreters. Abandoning, therefore, any attempt to ascertain the intention of the testator, independently of the strict rules of legal interpretation, we must confine ourselves, exclusively, to the light which those rules afford.
What, then, according to established rules of construction, and to the principles of the common law existing at the time of the death of the testator, was Mrs. Ludlow’s interest in the property in question ?
II. I differ from the plaintiffs’ counsel with regard to the precise nature of the limitations over. I do not think they create an executory devise. An executory devise, limited on any intervening freehold estate, must be limited on a fee, vested in a person, and to be vested in another by contingency. If the future estate is limited on a life estate, it is not an executory *226devise, but a contingent remainder. The fee in an executory devise is determinable in the first taker, and on a defeasance of the fee, or the happening of the contingency, the executory devise takes place ; but, if the contingency should not happen, the fee may become absolute in the first taker. As, where a testator devised to A. and his heirs forever, and if he should die without issue in the lifetime of B., then B. to have the lands, to him and his heirs forever. In this case A. took a vested fee simple, the limitation over to B. being good as an executory devise, to take effect on A.’s dying without issue, in the lifetime of B. There is another kind of executory devise, as where the fee does not pass at once by the devise, but until the contingency happens, descends to the heirs of the devisor. Thus a devise to the first son of A. when he shall have one, is good as an executory devise; and the inheritance, in the mean time, descends- to the heirs of the devisor. The first, however, is the only one that can be regarded as analogous to the case now before us. According to the first definition and example, it will be readily perceived, if the contingency should not happen, that is, if A. should die leaving issue, or should die without issue after the death of B,, the estate goes to the heirs of A. by descent, and not by virtue of the devise, or, to speak more technically, by purchase. The fee becomes absolute in the first taker, in the person of his heir.
How, if any effect is to be given at all to the limitations over, in the will before us, (and of course, on the theory of the plaintiffs’ counsel, effect must be given to them, else his whole argument falls,) the fee could never become absolute, under any circumstances, in the first taker or his heirs, (as heirs.) These limitations provide, in substance, that if Miss Mackaness should die unmarried, without leaving lawful issue, the estate shall go to her sisters, their heirs and assigns forever; if she should die leaving lawful issue, then to such child or children, his, her or their heirs and assigns forever ; and in case Miss Mackaness should die without lawful issue, and if at her death her sisters should not ,be living, the will provides that the estate shall go to the children of the said sisters, their heirs and assigns forever. By no possibility, therefore, by virtue of this *227devise, if these limitations are not to be totally rejected, could a fee vest in Miss Mackaness ; and, without this, without the possibility of the fee becoming absolute in the first taker, as I have shown, the limitations over cannot be legally denominated executory devises. The law is reluctant to construe any future estate to be an executory devise, that can fairly be deemed a contingent remainder. I think, therefore, the counsel for the plaintiffs mistook their ground in insisting, as the basis of. their argument, that the devise belongs to that denomination of future estates.
III. But does it necessarily follow that these limitations over are to be held as ineffectual, and as belonging to no description of future estates ? Are there no legal principles which can determine the character of this devise, in the absence of any light, which the will itself satisfactorily affords in relation to the testator’s intention 1 It is maintained by the counsel for the defendants, that by the first sentence of the fourth article of the will, Miss Mackaness was invested with an absolute and indefeasible title in fee. It gives the estate to her, “ her heirs and assigns forever.” These are clearly and undoubtedly words of absolute inheritance; and if no words of limitation over, no words of qualification or restriction followed, her title would have been indisputable, and her power of alienation would have been complete. But I think the entire fallacy of the defendants’ argument rests upon the assumption that these words are to be taken in their unqualified sense, unaffected by the subsequent provisions of the article. It is a rule of construction, that it be made upon the entire instrument, and not upon disjointed parts of it. In a deed, doubtless, if there are two clauses so totally repugnant to each other that they cannot stand together, the first shall be received and the latter rejected; but with regard to a will the rule is different; for if there are two such repugnant clauses, the’ latter shall stand. Every word of a will, not inconsistent with the general intent, ought to have effect given to it; but if two passages are totally inconsistent, the last must prevail. Indeed, ambiguous words in one passage cannot control another passage which is unequivocal. But is the lan? *228guage of the limitations over in this case equivocal ? On the contrary, it is perfectly explicit, quite as much so as that of the first passage. True, in the first passage, the testator gives and devises this property to his daughter Margaret Thornton Mackaness, “ her heirs and assigns forever but it is equally true, that he gives, devises and bequeaths the same property to his daughters Elizabeth Harvey and Mary Prowitt, “ their heirs and assigns forever,” in case his daughter Margaret should die unmarried without lawful children ; and if leaving lawful children, he gives and devises it to such children, and to make it still more certain that her heirs should not have it as her representatives, he gives and devises it to the children of his daughters Mrs. Harvey and Mrs. Prowitt, in case Margaret should die leaving no lawful children, and if at her death Mrs. Harvey and Mrs. Prowitt should be dead. So that, if it is insisted- that absolute effect must be given to the words of inheritance, without reference to what follows, it may be insisted with much greater force, that absolute effect must be given to the limitations over without reference to what goes before. It is a mistake to suppose that the mere employment of the ordinary technical words of inheritance, peremptorily and positively imparts afee, in defiance of subsequent words of qualification and limitation. (Bradstreet v. Clarke, 12 Wend. 602.) In such case, the words of inheritance require something additional, imparting a power of absolute dominion and alienation, to countervail the effect of the subsequent words. This has no doubt been required in order to show indubitably that the testator was not mechanically using words, employed technically by his legal adviser, of the full import of which he was not sufficiently aware, and of which he was not likely to be aware. We shall find this satisfactorily illustrated in Jackson ex dem. Brewster v. Bull, (10 John. 19.) B. by his will, after devising a certain lot of land to his son Moses, his heirs and assigns forever, declared as follows: “in case my son Moses should die without lawful issue, the said property, he died possessed of, I will .to my son Y. H.” There the limitation over was considered void, not however bemuse the first clause unqualifiedly imported an absolute fee, *229independently of the subsequent clause, but because the words “ died possessed of” imported an absolute power of ■ alienation, and therefore, and not otherwise, the limitation over was repugnant. The court, in their opinion, refer to the case of The Attorney General v. Hall, (Fitzg. 314,) to show that the words “ died possessed of” implied a power of alienation by the devisee; and it necessarily follows, that without these words or some similar words, the mere naked words of inheritance would not imply any such power, where there was a limitation over inconsistent with these words. The court further remark, 11 that Lord Hardwicke has given his sanction to the accuracy of that case, and to the authority of that decision, (1 Ves. 9,) and the supreme court of Massachusetts in the ease of lde v. Ide, (5 Tyng, 500,) have made a similar decision in a like case, upon the same authority. In that case, after an absolute devise of real and personal estate to the son, the will adds, that if he should die and leave no lawful heirs, what estate he shall leave to be equally divided, &c.” The limitation there was held to be repugnant and void; though it was admitted, that without that clause the words “what estate he shall leave,” itivould have been good as an executory devise.” This principle is fully recognized in the several cases arising out of the construction of Lord Sterling’s will, in the supreme court and court of errors of this state, and in the last of those eases (Jackson v. Robins, 16 John. R. 537,) in the court of errors, the chancellor, in his opinion, reviews the case of Jackson v. Bull, and the cases there referred to, clearly confirming the principles, and recognizing the distinctions which those cases advance. The case of O'Reilly v. Sempill, (2 Macqueen's R. 288,) cannot be considered analogous to a case like the present, where the words of inheritance are placed in opposition to limitations over, couched in the strict terms of the common law. That was a Scotch case, decided on principles of a jurisprudence different from ours or that of England, on appeal to the house of lords. It decides that, where by a codicil of the will of the testatrix, an estate in fee simple was constituted in A., a subsequent codicil merely saying that B. should be the successor of A. should not cut down into *230a life rent the fee simple of A. “ Merely saying that B. should he the successor of A.” is a very different thing from giving and devising the estate to B., her heirs and assigns forever, on the death of A., whether A. should die with or without issue. Besides, such a decision in the house of lords cannot be of much .importance here, if it contravenes all that has been held, as law, upon the same subject in our own courts.
[New York General Term, September 8, 1856.While, therefore, I deny that the limitations over, in this will, create an executory devise, yet I am of opinion that Miss Mackaness, afterwards Mrs. Ludlow, took no absolute fee in the estate, notwithstanding the words of inheritance in the first clause of the article: that those words are divested, by the subsequent clauses, of their usual efficacy, and that the limitations over reduced her interest to an estate for life; and, at her death, an absolute fee vested in her daughter, Mrs Ohrystie.
With regard to the point urged by the defendants’ counsel, that the words, “ shall die leaving lawful issue,” import necessarily an indefinite continuance of issue, thus Creating an estate tail, it is clear that the gift over was not to the issue of Miss Mackaness, merely in their capacity as her inheritors, but as devisees of the testator—not as her representatives or successors, but as his beneficiaries—not as heirs, but as original devisees; for the gift was to take effect, whether his daughter should die before or after his decease, and therefore, if there wrere no other objection, the rule in £beliefs case could not apply, nor could the estate have been considered an estate tail.
I am of opinion that the judgment of the court below should be affirmed, with costs.
Judgment reversed.
Roosevelt, Clerke and Whiting, Justices.]