The Court not being unanimous, delivered their opinions seriatim.
McDonald, J.On the 1st day of January, 1819, Joseph Gray made and published his last -will and testament. He died in 1822. By the third item of his will, he gave and bequeathed to his *805.two daughters, Jane and Sarah Gray, two negroes, girls, by •the name of Mary and Healer, to be equally divided between them. By the fifth item of the will, he disposed of the residue of his property equally, between his sons and two daughters, with the exception that John*Gray was to have no part of the stock or house furniture, “ and the said Jane and Sarah no part of the negroes, except those specially willed to them; and should Jane and Bar ah, or either of them, die without an heir begotten of their bodies, then their parts to be equally divided between Polly Morrison, his said sons and •the survivor.” John Gray and Joseph Gray, two of the. 'brothers, file this bill to obtain a writ of ne exeat or other process to prevent the removal of the negroes from the State, alleging that neither Jane nor Sarah has a child ; that Jane is eighty years old, and Sarah is seventy-seven, and will never have one; that John Gray has purchased the interest -of Polly Morrison in the remainder in said slaves and their increase, as set forth in the bill; that the other sons of the testator are dead, without issue; that the negro girl, Mary, died without increase or issue; that Healer had increase, and sets forth the number and value; that one of the negroes has been sold and carried out of the State for the purpose of defeating the rights of. complainants, as remainder-men, and they fear the rest will be carried off also. The complainants claim a remainder in all the slaves.
The defendants filed a general demurrer for want of equity to the bill. The Court sustained the demurrer and dismissed the bill, and on exceptions to the judgment on the demurrer,, the cause comes to this Court.
The Counsel for the plaintiffs in error insist that the limitations over in the fifth clause of the will is good; the defendant in error maintains the contrary, and this forms the dssue between the parties.
On the question made in this case, many decisions have been pronounced by this Court; but upop facts more or less varied, but so nearly like these presented here, that the able •Counsel engaged on opposite sides, claim all the benefit that *806would accrue from a strict adherence by the Court to the maxim “ stare decisis.” Satisfied that there is no case precisely like it, we shall not go into an investigation of them.
[1.] I shall proceed to an examination of the principles and rules of construction «which must govern this case, and then proceed to apply them to the case made in the record.
This State was a colony of Great Britain, and certain of the laws of England were of force here; the rights of property depended, in a great measure, for their support on those laws; the people were accustomed to them; the Provincial Legislative Assembly had limits to its power which it could not transcend; it could not constitute, ordain or make any law contrary or repugnant to the laws and statutes of England; and such of the laws of that kingdom as had their origin in the obvious policy of that people to preserve, undivided, large landed estates in families, were beyond the reach of provincial power. Amongst the Acts of the English Parliament which could not be affected by colonial legislation, was the Statute establishing estates-tail. The last Revival Act of Georgia, passed in 1784, declared that all Acts, clauses and parts of Acts which were in force and binding on the 14th of May, 1776, so far as they are not contrary to the Constitution, laws and form of government established in this State, should be in full force, virtue and effect. The Common, and such of the Statute Laws of England as had been usually in force, with the same exception, were declared to be in force. The object of this Act was, to adopt laws suited to the circumstances of the people.
The popular and legislative will was enunciated no less distinctly, however, in respect to laws not suited to the condition of the people, and not in harmony with the new government, which had its foundation in the acknowledged equality •of popular rights. To secure and maintain this equality of rights, it was essential that equality of condition should be promoted, as far as it was right that the laws of society should provide for it. Hence, in the first expression of popular will, after the people had assumed the prerogative of acting for *807themselves, we find it declared that estates should not be entailed, and that intestates’ estates should be divided equally among their children, the widow to have a child’s share or her dower, at her option. All other intestate’s estates (such as left no wife and children) were to be divided by the Act of Distribution of Charles II. unless otherwise directed by the Legislature. (Constitution of 5 February, 1777, section or clause 51.) The Constitution of 1789 contains the identical provision against the entailment of estates. The Statute of Charles II. had no application to real estate,, and lands in Georgia continued to descend according to the unchanged English Law. The Constitution of 1789 declared: tha £ intestate’s estates, when there were no wife and childi en, or no children, should be distributed as might be regulated by law. The Legislature, at its first session thereafter, in December, 1789, abrogated the English law of descent, in regard to lands, by enacting that “when any person holding real and personal estate shall depart this life intestate and without will, the said estate, real and personal, shall be considered altogether of the same nature and on the same footing,” and prescribes the rule of distribution. {Mar. & Craw. 217.) By these constitutional and legislative provisions, the power of entailing estates, and the English law of descents, became extinct in Georgia, and so remain.
The Constitution of 1798 contains no prohibition against the entailment of estates. The Act of 16th February, 1799,. however, declares that estates shall not be entailed. The provisions of the Act of 1789, placing real and personal estate on the same footing as to distribution, were re-enacted in 1821. {Cobb, 298.)
[•2.] Up to the year 1821, there was no legislative declaration of. the effect of conveyances in fee-tail. The Legislature had contented itself with prohibiting them, and left the consequences of the violation of the Act to be settled by the Courts. A diversity of adjudications on this subject by the Courts, led to the establishment of a rule by the Legislature. The preamble to the Act of 1821, {Cobb, 169,) which estab*808lishes the rule, shows that three different constructions had been placed upon the prohibitory Act, or upon conveyances, prohibited by it:
1st. That conveyances in fee-tail were absolutely void.
2d. That they vest a fee-simple estate in the person to-whom they are executed.
8d. That they vest only a fee conditional, as at Common Law.
The effect of the first construction was, that no estate-passed from the grantor; of the second, that the limitation-over in tail was cut off; of the third, that no absolute estate vested until the performance of the condition, as having an heir of the body. The object of the Legislature was, to prescribe a rule of construction, plain, certain and intelligible, which would prevent conflicts of judicial decision in regard to the rights of property. By the Act, “ all gifts, grants,, bequests, devises and conveyances, of every kind whatsoever, whether real or personal property, made in this State, and executed in such manner, or expressed in such terms, as that the same would have passed an estate tail in real property, by the Statute of Westminster Second, commonly called the-Statute de JDonis Oonditionalihus, are to be held and construed to vest in the person or persons to whom the same may be made or executed, an absolute, unconditional fee-simple estate. Here it is seen that the Legislature discarded the first and third constructions and adopted the second; so that, since the enactment of that Statute, the Courts are not at liberty to say that such conveyances are void and pass no-estate from the grantor; nor are they permitted to hold that they pass a fee conditional at Common Law, to vest absolutely or not, as the condition may be performed, but that they do pass the estate, subject to no condition, to the person to whom it is made or executed; an absolute fee, not according to the intention of the testator, but to the exclusion off those in remainder, in whom and whose issue, as long as there • are any, his purpose was to fix an inalienable property.
When a conveyance, whether of real or personal property,. *809is presented to the Court for construction, the inquiry of the Court must therefore he, is the conveyance expressed in such terms as would pass an estate tail by the Statute of WestminsterSecond ? The words “ real property” may be rejected as surplusage, for they are super-errogatory, and were, no doubt, used by the Legislature for the purpose of being explicit and giving force to their enactment. It neither weakens nor vitiates it. The business of the Court is with the instrument which conveys the property, and it makes no difference whether it be a conveyance of real or personal property. Is it expressed in such terms as would have passed an estate tail by the Statute of de donis conditionalibus ?■ If it would pass such an estate, the question is settled; for it vests in the person to whom it is made or executed, an absolute, unconditional fee-simple estate. The legislative will is expressed in language too plain and unambiguous to be disregarded. The Court does not feel at liberty to say, against the positive command of this Statute, that there shall be one rule for construing a bequest of personal property, and another for construing a devise of real estate. The Legislature prescribed a rule for the construction of both. The caption of the Act is, to alter the rules for. construing conveyances generally. The body of the Act expressly embraces “ conveyances of every kind whatever, whether real or personal property.” No “ absurd consequences, manifestly contradictory to common reason,” can arise out of the language employed by the Legislature to justify Judges, whatever opinion they may entertain of their power to do it, to declare that the Act shall have effect as to real estate, but not as to personal property. The words, the context, the subject matter, the effects and consequences, and the reason and spirit of the Statute, all conspire to demand of it the interpretation we place upon it, and to require its enforcement.
[8.] To ascertain whether the bequest, if it had been a devise of real estate, is executed in such manner, or expressed in such terms as that it would have passed an estate tail by *810the Statute de donis conditionalibus, we must look to the interpretation of that Statute by the English Courts. We will first examine the bequest, and ascertain, if we can, the testator’s intention. By the third item in his will he gave and bequeathed to his beloved.daughters, Jane and Sarah Gray,, two negro girls, Mary and Dealer, to be equally divided between them. By the fifth item of his will, he adds: should Jane and Sarah, or either of them, die without an heir begotten of their bodies, then their part or parts to be equally divided between Polly Morrison, my said sons, and the survivor. The intention of the testator was, to limit the entire property (the negroes and their increase) over, if Jane and Sarah died without heirs of their body, and not otherwise. The difficulty as to his purpose, arises from the testator’s jumbling the two together in one sentence. It is manifest,. however, as above stated, that he intended to dispose of the entire property, on the failure of an heir to be begotten o£. their bodies ; and to express his intention, the bequest may ■ be varied thus: should either Jane or Sarah die without an heir begotten of her body, then her part to be equally divided between Polly Morrison, my sons and the survivor ; and should the other die also, without an heir begotten of her-body, then her part to be equally divided between Polly Morrison, my said sons and the survivor. This reading expresses the intention of the testator, because he uses the singular and plural both, to show that he intended to give the same ulti- . inate destination to the property, on the death of the last. If Jane and Sarah, or either of them, die — if they die without an heir begotten of their bodies — then their part or parts, &g. If, as urged in the argument, the testator did not intend that the property of the surviving sister should be limited over, and that the survivor of the two should take an absolute property, the testator would simply have said, that on the death of either of my daughters, without an heir of her body begotten, the other surviving her, then her part to be equally divided, &c. Nothing would have been said in reference to the death of both, or the parts of both. But the *811complainants’ Counsel took the other view of the case, and considered that the limitation over embraced both daughters and their property; for they claim, as remainder-men, their entire property, and ask security for the whole. But it matters not which construction of the bequest prevails ; for under the rule we have laid down, the word “ survivor” cannot vary the case, in whatever connection it may be used. That we will show directly.
The expression, “ dying without an heir of the body begotten,” is equivalent to the expression, “ dying without issue.” It is admitted by Counsel-for plaintiffs in error, that the words, “ dying without issue,” uncontrolled by other words, mean an indefinite failure of issue, whether applied to realty or personalty; and that the first taker takes an estate tail by implication. But he argues that the words in this will do not create an estate tail by the Statute de donis conditionalibus, the words of the Statute applying to express gifts, only to one, and his heirs begotten, &c. There are no estates tail but by that statute; and all estates tail, whether express or by implication, are by virtue of that Act. If the portions of the will we are considering would pass an estate tail, whether express or by implication, an absolute, unconditional fee-simple title vests in the daughters, Jane and Sarah. It is conceded, then, that if this had been a devise of real estate to Jane and Sarah, and the heirs begotten of their bodies, an estate tail would have been created. But in this: clause there is no estate given to the heirs of the body of Sarah and Jane, but the property is given over if they die without an heir begotten of their body. It is clear that Polly Morrison and the sons can take no remainder, if there are heirs of the body, or as long as there are heirs of the body. It was the intention of the testator that the heirs of the body should take, if there were any, although there was no express gift to them. To effectuate the intention of the testator, then, Sarah and Jane must take an estate tail transmissible through them to their issue. Knight vs. Ellis, (3 Bro. C. C. 275.) This is the rule in England in regard to real estate. If, on *812the hypothesis of the plaintiff in error, they take such an estate, it is void, and the gift in fee stands.
We will now consider the effect of the use of the word “ survivor” in either of the relations mentioned.
[4.] There can be no question of the testator’s intention that the limitation over should not take effect, if there were heirs of the body of the daughters. In the case of Webb vs. Hearing, (2 Croke’s Rep. 415,) there were other words besides the term “ survivor,” to indicate the testator’s intention, that the limitation might take effect in the lifetime of the survivor. The words of the will were: “ I bequeath to Francis, my son, my houses in London, after the death of my wife; and if my three daughters, or either of them, do overlive their mother, Francis, their brother, and his heirs, then they to enjoy the same houses for the term of their lives,” then a limitation over.
It was held that the son had a fee-tail. In that case, the remainder-men never could have taken, if the son had had children; for the Court held that the word “heirs,” meant heirs of the body. So in this case, if Jane and Sarah had children, the remainder-men could not take, and so the complainants think; for .they say in their bill that they have both passed the age of child-bearing. In the case of Webb vs. Hearing, the son, Francis, having died without heirs, in the lifetime of the sisters, the limitation not being void, in England, as against law, took effect. In this case, the limitation over being void by Statute, the fee, as first given to Sarah and Jane, vests and remains in them. In another case of a will, (same vol. 448, King vs. Rumball,) the testator devised the whole of his houses and free lands for her life, and after her death to his three daughters, equally to be divided ; and if any of them die before the other, then the others to be her heirs, equally to be divided; and if they all die without issue, then to three others named in the will, &c. The whole Court adjudged that the daughters took vested estates tail. In the case of Chadoch vs. Cowley—same authority, 695 — the testator devised lands to his wife *813for life; and after her death, one parcel to his son Thomas and his heirs forever, and another parcel to his son Francis, and his heirs forever. The will then proceeds — “ Item. I will that the survivor of them shall he heir to the other, if either of them die without issue.” The question was, whether the devise was an estate tail immediately by the devise, or only a contingent estate, one of the brothers having died without issue in the life of the brother, and it was held to be an estate tail. It was objected, that one of the brothers dying without issue, the other was his heir, and that the will gave him no more than he would have taken by the law; but as it did not appear but that he had other children, and by the devise he intended to give it to the others by way of devise, if he died without issue, it was held to be an estate-tail. So, in the case under consideration, it does not appear but there were other children, or descendants of children, and the bequest excluded some who would have been heirs at law. It is unnecessary to refer to the multitude of more modern cases in respect to the effect of the word “survivor,” on the devise ■over.
I will refer to one or two American cases to show that the word “ survivor,” in a will of land, does not prove that the limitation was to take effect within the lifetime of the survivor. The words of the will, in the case of Bells vs. Gillespie, (5 Randolph, 275,) were: “I give and bequeath to my son Pleasant the land which I lent to my wife, before mentioned, containing one hundred and fifty acres, to him and his heirs, after the decease of my widow, or sooner if she marries, as before provided; and further, my will is, that if either of my said sons, to whom I have bequeathed lands, should die without lawful issue, that the part allotted them be equally divided among the surviving brothers, children of my last wife.” This was held to be a fee-tail. The case of Broaddus vs. Turner, in the same authority, 310, is, if possible, a stronger case. The words of the will in that case are: “ The above-mentioned lands I give to my above-named sons, to •them and their heirs forever. But if either of my said sons *814should die without issue, lawfully begotten, then it is my desire the survivor should have the whole. But if both of my sons should die without lawful issue, then it is my desire my said land be sold by my executors to the highest bidder, and the money arising therefrom be divided among my daughters then living; and if, in case any of them should be dead and leave children, then in that case, it is my desire that the children of the deceased shall have an equal share with those living; so that each child or their children shall have an equal part.” The Court held that this will created an estate tail in the sons. The opinion of Chancellor Kent, in the case of Anderson vs. Jackson, certainly states the law of such a case, and reviews the authorities applicable thereto as fully and ably as they can be found embodied in the same'space ■anywhere. He shows that a limitation over in every analogous case is void. It is true, that that was a devise of lands, and this is a will of personalty; but I have shown that, in this State, the terms which would create an estate tail in realty, ■destroys the limitation over of personalty; that the term “survivor” used in a will of personalty, can receive no other ■construction than if used in a will of realty in England; that there can be no two variant rules of construction here — one for construing wills of lands, and another for construing wills of personalty; and that the one for the construction of conveyances of lands, is the rule that governs all here. It would seem that all that remains for us to say is, that we affirm the judgment of the Court below — as, by the application of the above rules to this will, the limitation over of the negroes after the death of Sarah and Jane, without an heir of their body begotten, is void; and under our Statute, they take a fee in the property.
But I will add but a few remarks in respect to decisions which have heretofore been made touching the same question. In examining them as far as they have been accessible to me, they have been made upon authorities found in the English books, which certainly lay down two distinct rules for construing the same instrument — giving more indulgence to *815testamentary dispositions of personalty than of realty. There-may be good reasons for it there; but if they were considered equally good here, the Judges could not allow them to» operate without a repeal of the Act of 1821, on which I have* already remarked. The rule laid down by that Statute is aw ■ wise one. It furnishes a certain rule, and one by which tes-, tamentary dispositions of property can be easily and: readily tested. An object of our law, in addition to that, which I have already mentioned, of preventing the accumulation of large estates in few hands, is to unfetter property- and to settle at once the title, and not to allow it to be incumbered by contingencies which it might take years to settle. Our policy is to open property of all sorts to trade, and to permit as few obstacles to be thrown in the way of the fail’purchaser as possible. It is wise and just. Our laws sustain.* that policy. In England, chattels cannot be entailed, nor-can a fee conditional be created in them. (2 Bl. Com. 113, n. 17.) An annuity granted out of personal property, is an exception. There may be a fee conditional in an annuity, but it cannot be entailed; and there can be no remainder in it, because there can be no remainder of property which is not within the Statute de donis.” Turner vs. Turner, (1 Bro. C. C. 325.) Grant that there might be a fee conditional in the negroes given to Jane-and Mary, the conse-quence would be, that on the performance of the condition,, the fee would become absolute in them. But if the condition, be not performed, as there can.be no limitation over in such, case, the remainder is void. But as this case'has been decided on another view of it, it is unnecessary to pursue this farther. We have not referred to judicial constructions of' the Act of 1821 by our Courts, because they do not seem to have looked to it in cases -where it would seem to us to apply; but it is difficult to put the decision of the case of Hollifield vs. Stell, on any English rule of' construction in respect to personal chattels. The earliest reported case 1 have seen involving facts to which the Statute of 1821 would apply, is the case of Atwell’s Ex’rs vs. Barney. The Act is not re-. *816ferred to in that case. The Act is so important an one, that it seems to have been an oversight that is unaccountable; for it is impossible to conceive and as unjust to presume, that the Courts would have passed over, intentionally, an Act of the Legislature of so much importance and so clearly constitutional. But if it has been passed over, and the Courts have disregarded the rules there laid down, what is this Court to do ? Is it to fall in, and acquiescing in this disregard of the legislative authority, to treat the Act as a nullity, and expound conveyances of property by the old rule ? I do not feel myself at liberty to do it. I consider a legislative Act which violates no provision of the Constitution, State or Federal, of the highest authority. It overrides older Statutes, the Common Law and judicial decisions, which are repugnant to and come in conflict with it. I repeat, that I will not suppose that any Judge or Court has purposely disregarded the Act of 1821. They either did not direct their attention to it or have interpreted it differently from myself. I have seen it barely adverted to in one case, and in no case have I seen an analysis of its provisions.