concurring.
Are the words of this will such, that if the property they relate to was real property, they would, by the Statute de donis, assuming that Statute to be in force, have the effect to create estates-tail in the testator’s daughters, Jane and Sarah ?
If they'are such, they create estates-tail in those daughters, although the property to which they relate is personal property. For the Act of 1821, concerning entails, and the con*817struction of conveyances, declares “ That all gifts, grants,. bequests, devises and conveyances of every kind whatsoever,. whether of real or personal property, made in this State, and executed iu 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 donis conditionalibus,) 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.”
It is not disputed, that the words are such that they would have the effect aforesaid, unless prevented by the equnter effect of one of them, the word “survivor”', provided the Statute de donis is the source of estates tail in cases in which, for example, the gift, though not in so many words, to one “and the heirs of his body issuing” is, yet, in such words that it must be implied from them that the giver intended the gift for one, “and the heirs of his body issuing”: provided, to express the idea in more common language, the Statute de donis is the source of estates tail by implication.
Is that Statute, then, the source of such estates tail? It is. (2 Ins. 334; 1 Cruise Dig. 72; 2 Crabb Real Prop. §975.)
All estates tail derive their origin from that Statute. “ An estate tail may be described to be an estate of inheritance deriving its existence from the Statute de donis conditionalibus, which is descendible to some particular heirs only of the person to whom it is granted, and not to his heirs general.” (1 Cruise Dig. 70.)
The pith of the Statute is contained in these words: “propter quod dom rexf “ staiuit quod voluntas donatoris, secundum formam in diaria doni sui manifesté expressum, de eaetero observetur.”
“Wherefore our Lord, the King” “hath ordained that the will of the giver, according to the form in the deed of gift manifestly expressed, shall be from henceforth observed.” (2 Ins. 332.)
*818If the will of the giver be, that his gift shall go to A and' the heirs of his body, and he in any way manifestly expresses that will, these words require that the gift shall go to A and: the heirs of his body. These words do not say that the giver must use the words, “to A and the heirs of his body,” and: no others. Any words equivalent to these will as manifestly. express the import of these, as these will.
The Statute de donis, then, is the source of even estates tail, by implication.
Does the word “ survivor" have such a counter effect to that of the other words, as to prevent those words from creating estates tail in the daughters, Jane and Sarah ?
The words of the gift, it is to be remembered, are to be construed as if the property to which they relate was real property.
Now there is no British case, as I think, that gives such a counter effect to the word “ survivor”; and there are at least two British cases that say that the word cannot have such a counter effect. These are Chadock vs. Cowley, (Cro. Jac. 695,) and Roe vs. Scott & Smart, (Fearne, C. R. 473—’4 n.) In the first of these cases “ there was a devise of Blabkacre •and Whiteacre to M for life; and after her death, Blackacre to B and his heirs forever, and Whiteacre to C and his heirs forever; and if either of them should die without issue, the survivor should be heir to the other; and it was held that each of the devisees in remainder took an estate tail with a vested remainder to the other, and that it was not a contingent limitation to the survivor on the death of either, without issue in the lifetime of the other.” I quote from Lewis on Perpetuities, 219.
The same author remarks, that “ The doctrine in question,” viz : that the word survivor will control the words of entail, “ does, indeed, so far as respects personal estate, seem to possess stronger claim to reception as a rule of law, as we shall see hereafter; but all the authorities bearing upon it are strictly confined to limitations of personalty. However, this fact cannot be deemed conclusive against its applicability to *819limitations of real estate; because, in none of the cases has any such supposed distinction been noticed or referred to; but upon two or three occasions the question has been argued, both on the one side and on the other, without reference to the nature of the subiect-matter of the limitations.” (Id. 221.)
There is an Irish case in support of this doctrine, Fisher vs. Barry, (2 Hog. 153,) cited in the same work, 218.
And there were read, on the argument, several “Ameri■can” cases in favor of the doctrine.
But British cases must, in general, far outweigh American, or Irish cases, on a question of Georgia law. The law that Georgia adopted was British law; and British law of the era of the first settlement of Georgia, or, perhaps, rather, of the era of the surrender of the charter by the trustees to the King.
And it was not until about the time of the former era, that British Courts felt themselves at liberty to say that in a gift, including both realty and personalty, a word occupying precisely the same relation to both, might be considered as evidence of an intention in the donor that the donee should take in the personalty, after a definite failure of issue, in the realty after an indefinite failure of issue. Forth vs. Chapman, (1 P. Wms. 667,) decided in 1724, was the first ease, I believe, in which any Court ventured upon this course.
But say that this doctrine' is true — say that this word, “ survivor,” may have the effect to control words of entail, yet, it must at least be admitted that the word can have this effect only in cases in which there is nothing to counteract its having this effect.
Now in this case, there is something to counteract the Words having this effect.
[1.] The gift over is to Polly Morrison, a daughter of the giver, to the sons of the giver, and to the survivor of Jane and Sarah, daughters of the giver, if either should die without an heir begotten of her body.
Now as to all of these donees, except the last named one, *820there is nothing whatever in the terms of the gift to control the words of entail. The word “ survivor" does not apply to those donees. And the fact that they were persons in existence at the time when the gift was made, is not such a fact as could at all affect the words of entail.
This was decided in Hollifield vs. Stell, (17 Ga. R. 280.)
As to the whole number of the donees, then, except one, and the number was quite large, the intention of the donor was, that they should take only on the termination of estates tail in the first takers.
But he must have intended that one to take at this same time too, for he directed the property to be equally divided among all of the donees ; and a division of the property was a thing that could not take place among all of the donees, unless at the time of the division each was entitled to his share. Besides, all the donees were his children. And there appears no reason why he should have wished the shares of all his children, except one, to come to them at one time, and the shares of that one to come to him at another time.
Ab, therefore, the testator intended all of the donees to take at the same time, and as he intended, as to all of them but one, that that time should be, and not until the termination of an estate tail in the first taker, he must have intended as to that one, also, that the time should be, not until the termination of an estate tail in the first taker.
Such is the consequence of the influence over the word survivor, which the words in company with it have.
And it is proper that those words should influence it, rather than that it should influence them; for, of a large class of objects, all equally near to the donor, it represents but one, whilst they represent all the others.
[2.] To vary the idea a little — the words actually used by the testator must have had the same effect which equivalent words, if used by him, would have had. The words actually used by him were these: ‘-And should Jane and Sarah,” (daughters of the testator,) “ or either of them die without an heir begotten of their bodies, then their part or parts to *821be equally divided between Polly Morrison,” (another daughter of testator,) “ my said sons and the survivor.” Now what would be equivalent words to these ? The following, I think: u And 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 among my other children, including Jane, if the one so dying without such heir should be Sarah, and Sarah, if the one so dying without such heir should be Jane.”
But the effect which these words would have had would have been, to create estates tails in the first takers, Jane and Sarah. So decides Hollifield vs. Stell, (17 Ga. R. 280.)
Indeed, I may say that I do not find it possible to distinguish this ca3e from that. In that case, the remainder-men were a class composed of brothers and sisters all living at the time when the gift was made; in this, the remainder-men were, also, a class composed of brothers and sisters all living at the time when the gift was made. And as I am not prepared to over-rule the judgment in that case, I must vote for affirming the judgment in this.