delivered the opinion of the court. [After stating the facts in the case.] It is to be inferred, though this case does not expressly state it, that all the children of Abraham Staats the second, are dead ; it is left uncertain from the case, which of the children of the testator, Abraham Staats the second, survived the others. Joachim and Johannis appear to have survived all their brothers and sisters, but the fact does not appear, which of them survived the other, and this may be a very material consideration. It is stated in one of the points made by the counsel that Joachim survived all his brothers and sisters, and that fact will be taken for granted.
1. Does the devise over apply to the real and personal estate, or to the latter only ?
2. Does the devise over create an estate tail, or does it operate as an executory devise ?
3. If the devise was good as an executory one, would the grandchildren of the testator take under it, as the last holder, Joachim, died without issue ?
4. If the devise over created an estate tail, was Joachim's deed, in 1755, sufficient to pass his interest ?
1. We are bound to construe this will so as to carry into effect the intention of the testator, unless we are restrained by .fixed and established rules of construction. In the present *347case there are no such rules to fetter us, and we are to look at the whole will to find out whether the testator meant to devise over his personal estate only, or both personal and real. After several specific bequests of real and personal estate to his sons and daughters, and, in fact, after exhausting his real and personal estate by devises and legacies, he uses these expressions, “ and If any one or more happens to die without heirs, his or their parts or shares shall be divided among the rest of the children.” The only reason for confining this devise over to the personal estate is, that it immediately succeeds the devise of the remainder of the testator’s personal estate to his eleven children. I know of no adjudged case, nor have I met with even a dictum, that a will is to be construed grammatically, or that an expression of the testator’s will which reason, propriety, and his evident intention, would extend to all the antecedent subjects, shall be confined to the one immediately preceding. It is impossible to conjecture why the testator should devise over such parts of his personal estate, as any of his eleven children should die possessed of, without leaving an heir; and that with regard to his real estate, which, we must presume, was much more valuable, he should have no such intention.
The plain and natural intention of the testator was, that such parts of his estate as he had specifically devised, both real and personal, should go over to his surviving children on the contingency stated in the will. In the case of The Executors of Moffat v. Strong, (10 Johns. Rep. 13.) Moffat gave by his will certain specific parts of his real and personal estate to each of his sons, and directed the remainder of Ms moveable estate to be divided among his heirs, and then added, 1E and if any of my sons should die without lawful issue, then let his or their part or-parts be divided equally among the survivors,” &c.
In that case it was made a question whether the limitation applied to the residuum of the moveable estate, or whether it extended to all the previous devises to the son or sons who should so die. It was held that the provision being general in Its language and object, the words did not, by any easy or natural construction, confine the limitation over to that part of the will. The two cases are perfectly alike in this respect, and' must receive tjhe same construction-» *348The case of Doe, ex dem. Stopford, v. Stopford, (5 Easts Rep, 501) is very much in point also; there the testator made spedfic devises to his sons in severalty, provision for his daughter and widow, and then gave the residue of his worldly effects to be divided amongst his three sons, and lastly, “if any of his said children died under age, and without issue, the share of him or her deceased should go equally amongst his surviving sons.’’ Lord Ellenborough and all the judges held, that the word share in the last clause could mean only the entire fortune or portion before given. There are several other cases which might be added, but the intention of the testator, and the current of decisions, are too strong to require it. The limitation over must be applied to both the real and personal property devised.
2. The point, whether the limitation over operates as an executory devise, or to create an estate tail, admits of very little difficulty. The case of Fosdick v. Cornell, (1 Johns. 444.) is in point, that this is a good executory devise. There the words- were, “ that if any of my said sons, William, Jacob, Thomas, and John, or my daughter Mary, shall happen to die without heirs male of their own bodies, that then the lands-shall return to the survivors, to be equally divided between them.” The circumstances in the two cases are very parallel; and what weighed much with the court in that case exists here \ the devise over was to the surviving devisees in his will, among whom were his daughters, to whom he had devised no part of his real estate. I believe none of us have ever doubted, the correctness of the decision in Fosdick v. Cornell; and it would be a waste of time to review the authorities there cited.
3. It has been objected, that the devise over is not in fee, and that charging the devisees, Samuel and Joachim, with the keeping and maintaining their brother Abraham, would confer a lee under the first devise. The case of Jackson, ex dem. Decker, v. Merrill, (6 Johns. 185.) settles these questions. It was there decided, that charging the estate with payment of money in the hands of the devisees did not prevent its limitation over by way of executory devise; and the devise over of their parts, which in the hands of the first devisees was considered in fee, necessarily referred to the estate or interest before devised 5 and that the ulterior devise was clearly intended to be as extensive 9s the antecedent one.
*349I cannot but think the case imperfect as to some facts. I fer, however, from the course the argument has taken, not only that Joachim survived all his brothers and sisters, but that the plaintiff seeks to recover the part of land either devised to him, or of which he became possessed as such survivor ; and then, under the words of the limitation, it becomes a question, whether, as the survivor, he had not a fee in the lands, which accrued to him as such; and, also, whether the word children shall be deemed to extend to grandchildren.
In White v. Thurston, (Ambler, 555.) by deed, an estate was directed to be sold, on failure of issue male of A. and the money to be equally divided among four persons, or the respeo* tive issue of their bodies; but if any one of them be dead at that time, (the failure of issue male of A.) to be equally divided among the survivors of them and their respective children, in case any of them be dead, having issue of their body. They all four died before the contingency happened; one without issue; one had a son living; one had grandchildren, but no children; and the fourth had children, grandchildren, and great-grandchildren, living. Lord Hardwicke held, that the word issue carried it to all descendants, and that the word children, in that case, which may admit of a more restrained signification, should be extended to the children, grandchildren, and great-grandchildren; and they took per stripes, and not per capita. In the case cited, it is manifest Lord Rardwicke determined it on the clear intention of the testator, that in case of a failure of issue male of A. the money was to be divided among the four persons, or the respective issue of their bodies, in case any of them were dead on the happening of the contingency; and he considered the word children as used synonymously with the words issue of .their bodies. This is not an authority for saying, that the word children, used as it xvas by the testator, meant grandchildren.
The next case relied on, is Gale v. Bennet, (Ambler, 681.) That case xvas governed by the case of White v. Thurlcton; and grandchildren xvere admitted to inherit, because the testator meant to let in the grandchildren, by using the xvord issue, as synonymous xvitli children.
The next case is Crooke and wife v. Brooking. (2 Vernon, 106.) R. Mallock gave to trustees 1,500 pounds, for *350such uses as he had declared to them, and by them not to fee disciosec[. One of them, by letter to the other, mentioned the trust, which was, that they, out of the profits, should allow Anne Crew a maintenance during her husband’s life-time, and if he died before her, then she was to have the money ; but if her husband survived, the money to go amongst her sister’s children, as she should advise. Anne Crew died in her husband’s life-time, leaving only one sister, Grace; but gave no directions or advice relative to the 1,500 pounds. Grace had only one child (the plaintiff) living at the death of Anne Crew, but had five children living at the death of the testator, Mallóele, some of whom had children, who were parties to the suit; and the questions were, whether the plaintiff, being the only child living of Grace, at Anne Crew’s death, should have the whole 1,500 pounds; or whether the administrators of the dead children, or the grandchildren, the children of the deceased children, should have a share.
Chancellor Jeffries decreed the money to be divided between the child living at the death of Anne Crew, and the children’s children living at the death of Anne Crew.
Upon a rehearing before the Lords Commissioners, they decreed for the plaintiff, and were “ clear of opinion, that where the devise is to children, the grandchildren cannot come in to take with the childrenbut all admitted, that if there had been no child, the grandchildren might have taken by the devise to the children,
The next case is that of Clarke v. Blake, (2 Br. Rep. 320.) The testator devised the premises in question, “ to the use of such child or children of his brother H. C. whether male oí female, as should be living at the time of his said brother’s death, as tenants in common.” The question was, whether Bridget, one of the children, being unborn, but in ventre sa mere, at the time of the testator’s death, should take a share, or be excluded, Lord Kenyon, then master of the rolls, held that the child,.in ventre sa mere, could not take, under a bequest to children, living at the time of the testator’s brother’s death. The Lord Chancellor Thurlow, expressed an inclination the other way, but made no decision.
The case of Crookcv. Brooking, concludes with an observation of the reporter, which, if correct and authoritative, as it is not, doeii *351:-apt apply to this case; “ but all admitted, that if there had been no child, the grandchildren might have taken by the devise to his children.” Sir Thomas Reynolds, in delivering his opinion In Stead v. Barrier, (T. Raym. 411.) says, the word son is never taken for grandson, no more than child is taken for grandchild; and in Brown v. Peys, (Cro. Eliz. 358.) all the court resolved, that where the devise was to one of Richard Forster's children, his child’s child should not have it, for that it was out of the words. To the same purpose, also, are 10 Mod.. 376, Owen, 88. Ventris, 229, 230.
The testator, in making the limitation over, never contemplated the case which has occurred; and when he says, “ if any one or more happens to die without heirs, his or their parts or shares shall be equally divided among the rest of the children,” he, undoubtedly, by the rest of the children, refers to his own children, whom he had before named in his will. He died, not once thinking of his grandchildren; and it would be doing violence to his intention to say he did.
If this be so, then the last surviving child, whether he had issue or not, would retain, not only his share in the first devise, but also the shares which had accrued to him; for the estate devised to him was vested by the devise, and if no one • could take under the executory devise, it would become inoperative, and could not devest him of what he had gained by the direct devise. It is, therefore, incorrect to suppose, that if there was no one to take under the executory devise, the estate would revert to the right heirs of the testator.
It is contended, that the deed from Joachim Staats to So dr. Van Schaick, was void, as it was to take effect m futuro? and that the lessor is one of the heirs of Joachim.
This is a very mistaken idea; and the eases of Doe, cx dema Wilbourne and Ux. v. Simpson, and of Roe v. Freeman and others, (2 Wils. 22 and 76.) are directly in point, that this deed is good as a covenant to stand seized. The same point was adjudged in Massachusetts, (4 Ting. Mass. Rep. 136.) and expressly-In Jackson, ex dern. Trowbridge, v. Bunsbagh, (1 Johns. Cases? 91.) We are of opinion that the defendants must have judgment.
Van Ness, J.concurred in the opinion, that the defendants were entitled to judgment, on the third point stated by Mr. *352Justice Spencer, and declined giving any opinion on the other points in the cause.
PLATT, J. not having heard the argument of the cause, gave no opinion.
Judgment for the defendants.