dissenting.
I am compelled,, very reluctantly, after a service of eleven years upon this bench, to dissent, for the first time, from the judgment of a majority of the Court. Of such- paramount importance have I considered unanimity of opinion, with a view to uniformity and permanence in its decisions, the great end for which this tribunal was established, that I have not •hesitated to sacrifice the pride of professional opinion, and a •practice to which I had been accustomed for more than a •quarter of a century, when it came in conflict with a more *822general practice which had obtained in the State. I am satisfied, that in construing statutes and establishing rules of •practice, it is not so material that they should be fixed one •way or another, as that they should be FIXED. And even, now I might have yielded my own convictions, strong as they are, to those of my brethren, but for the magnitude of the questions involved. I allude not to the amount of property at stake, and not alone to the importance of the immediate question discussed; for back of that, or rather underlying it, ■there is a much graver matter ; and that is, the establishment of a principle which ignores the unbroken current of adjudications in Georgia for thirty-four years, including sev- ■ eral solemn judgments of this Court. Extend the same principle to every other vexed question of law which may be brought before this Court, and you make its decisions as various and vascillating as may be the minds of the several in-cumbents who, from time to time, may occupy seats upon this bench. And thus, I repeat, will be defeated the first .great, fundamental object of the Legislature in creating this Court; that is, the stability of the law.
The only point involved in this case is, whether the limitation over to the brothers and sisters in the following item of Joseph Gray’s will is too remote. The words of the clause are these : “ 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 between Polly Morrison, (a daughter,) my said sons and the “ survivor.”
It is conceded that the word survivor applies to Jane and Sarah. And Counsel for defendants in error contend that ■this limitation is too remote, because the testamentary intention was, not that it should take effect at the death of Jane or Sarah, but upon an indefinite failure of the issue of Jane and Sarah. On the other hand, it is insisted in behalf of the plaintiffs in error, that the testamentary intention necessarily contemplates the limitation to take effect at the death, because the gift over is to the survivor. And if it was to take effect within the lifetime of the survivor, it is impossible to *823say that is too remote, because the law allows of limitations-within a life or lives in being and twenty-one years, and the-usual period of gestation afterwards.
Is not the bare statement of the question its decision ? IIow can we impute an indefinite^ time to the testator as his intention, when he has limited it, himself, to the lifetime of the shortest lived of his two daughters ?
When we come to examine the decisions of the Courts, we; ■find that they have not been blind or deaf to the obvious intent of testators using the word survivor, or those of similar import; but giving to it its plain and natural meaning, have-res trained by it the effect of other words which would otherwise indicate an indefinite failure of issue. The English authorities are numerous; and as to personal property, uniform, except in those cases where, from the context, the Courts have construed the word survivors not to bear its ordinary, primary signification, but. to be synonymous with. others. These latter cases are, however, the exceptions, not - the rule. (Nichols vs. Skinner, Pre. in Ch. 528; Hughes vs. Sayer, 1 P. Wms. 524; (leading case;) Massey vs. Hudson, 2 Merivale, 130; Crowder vs. Stone, 3 Russ. 217; Ranelagh vs. Ranelagh, 2 Mylne & K. 441; Fearne on Remainders, 472, 473, 481; Smith on Executory Interests, 280.)
I am aware that Mr. Lewis, in his Work on Perpetuities,. has expressed some doubt as to the inflexibility of the rule on account of a loose expression of Sir Wm. Brant in one case,. and because of Lord Brougham’s anxiety, in another and later case, to place his decision upon a different ground than theTeeognition of this rule. {Lewis on Perpetuities, 343.) I need, only remark, that this is too vague a foundation to cast doubts upon a well settled rule of law; and that to us, at-least, Lord Brougham’s doubts in 1832 should cast no shadow upon adoctrino so thoroughly established at the time of our Adopting Statute.
When Ave turn to the decisions of our sister States, to seek lights upon this question, we fund- there also a remarkable-*824unanimity. (Fosdick vs. Corwell, 1 Johns. 440; Moffat vs. Strong, 10 Johns. 13; Jackson vs. Staats, 11 Johns. 338; Anderson vs. Jackson, 16 Johns. 382; Lion vs. Bruless, 20 Johns. 483; Jackson vs. Christman, 4 Wend. 277; Cutter vs. Doughty, 23 Wend. 513; Richardson vs. Noyes, 2 Mass. 56; Combe vs. Gorham, 1 Conn. 36; Mifflen vs. Neal, 6 Serg. & Rawle, 460; Smith vs. Chapman, 1 Hen. & Munf. 240; Cordle’s Adm’r vs. Cordle, 6 Munf. 455; Brooks vs. Croxton, 2 Gratton, 586; Zollicoffer vs. Zollicoffer, 4 Dev. & Bat. 438; Threadgill vs. Ingram, 1 Iredell’s L. R. 577; Gregory vs. Beasley, 1 Iredell’s Eq. R. 25; Whitehead vs. Potter, 4 Iredell, 257; Cordes vs. Adrian, 1 Hill’s Ch. R. 154; Terry vs. Bronson, 1 Rich. 78; Lowry vs. Bryson, 4 Rich. Eq. R. 262; Williams vs. Graves’ Ex’x, 17 Ala. R. 62; Powell vs. Glenn et al. 21 Ala. 458; Booker vs. Booker, 5 Humph. 505.)
It is true that there is a distinction taken in some of the authorities between the word survivor, and the words survivor and his heirs. Rut as the latter words do not occur in this will, it is unnecessary for me to examine or pass upon the correctness of this distinetisn.
In Anderson vs. Jackson, (16 Johns. 382,) .Chancellor Kent dissented from the judgment of the Court, (which affirmed his own previous decision,) and this dissenting opinion has been emphatically relied upon by the Counsel for defendants in error. It contains an elaborate review of the cases decided upon the words dying without issue, and similar words; and when the Chancellor has successfully shown that such words mean an indefinite failure of issue, his conclusion is, that the addition of the word survivor does not limit the time to the death of the first taker. Now the only cases referred to by the Chancellor where a clause 'of survivorship was inserted, are Pells vs. Brown, (Cro. Jac. 590;) and Richardson vs. Noyes, (2 Mass. 56.) And both of these were adverse to his decision. He says the latter was over-ruled in Ide vs. Ide, (5 Mass. 500,) which, strange to say, when examined will be found to be a naked case of dying without is*825sue, with no reference whatever to the question of survivor-ship! Perhaps the change in the opinion of this distinguished Judge is to be found in a note to his Commentaries, {Vol. IV p. 278,) where he says that this decision “shifted and disturbed real property* in the City of New York to a distressing degree.” Such influences may, unconsciously to themselves, warp the opinions of the greatest and best of men. SujBSce it to say, however, that this dissenting opinion has never been regarded by, and but seldom alluded to, in the Courts of New York. '<
I have, in the outset, intimated that this question is not new in this State. Before the organization of this Court, the Circuit Judge, at least of one district, had maintained the same doc-trine. Mayor vs. Wiltberger, (Ga. Dec. pt. II. p. 20.) In Benton vs. Patterson, (8 Ga. R. 146,) this Court recognized this to be the law. And for myself, I then announced “ that whatever technical words are used in the instrument, whenever the devise over is to a person or persons in life as survivor, they ought to be interpreted to import a failure of issue at the time of the death of the first devisee, and they do not mean a general or indefinite failure of issue.” (p. 151.) The authorities read and the masterly argument submitted on both sides of this case, are unsurpassed for power and learning since the establishment of this Court, have confirmed rather than shaken my confidence in the opinion then expressed.
It has been suggested, that even if the word survivor would restrain the limitation over to the death of the first, Jane or Sarah, who should die, it could not have that effect at the death of the last, as there would be then no survivor. But I would respectfully reply, that Counsel seem to lose sight of the question we are investigating. The point is as to the testamentary intention. Did Joseph Gray mean an indefinite failure of issue, or a failure at the death of his daughters ? Grant that the latter was his testamentary mind, and it matters not who takes — and there is no necessity of an ao*826tual survivorship to make the limitation good. Besides, if tbe latter, limitation was not good, the former being good,, the Court erred in sustaining tbe demurrer.
The able and eminent Counsel who represent the defendants in error, do not deny the weight of English and American authority in cases relating to personalty. But they do • reject their application and conclusiveness to cases arising in. ■Georgia. The argument is this: That under the Act of 1821, all questions as to both realty and personalty are to> be governed and controlled by the English decisions, as to-realty alone. That the modifications of the English rule, as to realty, which the English and American Courts have in-' troduced as to personalty, were wholly inadmissible in this. State, the Act of 1821 subjecting every case to the Procrus— tian bed of the stern rule relating to realty; that it was an.eld and hoary error of the Judge’s transmitted from age to-age, to say that this iron rule had been adopted in England' in favor of the heir; but that on the contrary, it was an effort on the part of the English Courts to untie the limitation of estates, and to convert executory interests into estates tail, in order to dock the entail by the fiction of fine and' recovery. To use Counsel’s own illustration, it was said that the Courts sought to create entails for the purpose of' destroying them — -just as the South Sea Islanders demanded' more missionaries in order to eat them. That to apply this rule to this case, the word survivor, would not be held in England to restrain the limitation when applied to realty, the tenor of decisions fixing the rule the other way; and hence, in Georgia, it could not have that effect, under the Act of 1821, when applied to personalty. Such I understand to be the position maintained. I propose to examine its soundness.
The accusation brought against Judges and Courts, of ignorance, as to the reason for adopting this rule, is a grave ■one ; and if tenable, should be proven, so as to be avoided in future. Let us look to its history.
*827Estates tail are the creatures of the Statute of Westminster 2d, commonly called the Statute de donis conditionalihis, passed 13 Ed. I. Prior to that Act, the Judges had held such estates to be upon condition-, and in order to shorten, their duration, had decided, that so soon as there was issue ■or heirs of the body, the condition was performed, and the first taker took an absolute fee. The nobility were dissatisfied, wishing by some means to perpetuate the estates in their families. Hence the Statute. It recites certain cases, and ■complains that the donors had been theretofore “barred of ■their reversion, which was directly repugnant to the form of ■their gifts” ; and ordains “ That the will of the giver, according to the form in the deed of gift manifest ly expressed, shall be henceforth observed ; so that they to whom the land was given under such condition, shall have no power to alien the land so given, but it shall remain unto the issue of them to whom it was given after death, 'or shall revert to the grantor if issue fail,” &c. (2 Cary’s Ab. 122; 1 Ruff. Stat. at large, 78.) It will be perceived that this Statute applies only to express entails created by the words of the instrument, and to carry out the intention “ as manifestly expressed.” How then arose estates tail by implication ?
There was another rule of the Courts adopted for the same purpose as that in reference to conditional estates, (viz: to shorten the duration of limitations of estates,) which was, •that all attempts to create a'perpetuity were void; and in such cases, the Courts held that the first taker took an absolute estate. After some vacillation, the rule was fixed, that any limitation which was not to take effect within a life or lives in being, and twenty-one years and the usual period of gestation thereafter, was within the rule against perpetuities and void. Shortly after the passage of the Stat. de donis, cases of this sort arose : gifts were made to A for life, and upon the failure of issue or heirs of his body, then over.
The intention, as the Courts perceived, was here manifestly so long as A had an heir of his body — such heir it was evidently the wish of the testator should take; and on failure *828of such issue, the limitation over. But this limitation was void, as being within the rule against perpetuities. The rigid effect of the rule was, to give A an absolute fee. But that lyas not the testator’s intention, because he gives to A for life only. Let us mark — there is no gift whatever to the issue or heirs of the body. Now in this dilemma, the Courts invoked another rule of law ; and that was, that where there is a clear, general intention, and there is also a particular intent, if the latter fail, then the Courts, by the doctrine of Cyprés or approximation, will carry out the general intent, and in a mode as near the particular intent specified as possible. Here, there was a general intention that A should enjoy for life; and that after his death, the heirs of his body should enjoy, so long as there were such; and on failure of Such, some other person. The latter part being contrary to a rule of law, the Court carries out the balance of the intention by implying an estate tail in A, instead of an estate for life, and thus gives A the enjoyment of the estate for life; and at his death, gives the same to the heirs of his body. Thus arose estates tail by implication.
What was the object, and what the effect? The object was manifestly to give to the heirs of A that benefit which was intended for them, and not permit the rule against perpetuities to give to A an absolute estate, with power of alienation to the exclusion of his heirs. Was not this, then, in favor of the heir ? The effects were — 1st. To deprive A of the power of alienation, so as to exclude the heirs. 2d. To deprive him of the power of charging the estate with bond debts while living, or with payment of legacies after his death. 3d. To deprive him of the power of devising to the exclusion of the heir. Were not all these effects in favor of the heir?
But Counsel contend that it did not have the effect of depriving A of the power of alienation; because, by the simple process of fine and recovery, this object could be accomplished. But estates tail had been implied by the English Courts for two hundred years before the fiction of fine and recovery was adopted by the Courts. (2 Black. Com. 117.) It is not *829legitimate, therefore, to say that the Courts favored these •estates, and implied them in order to destroy them, as no ■such motive or reason could have existed at the time of their •origin.
When it is said that the Courts and nobility of England 'have, at sundry periods during the history of that country, ’■been at issue as to the policy and propriety of tying up estates so as to prevent alienation, the statement is sustained 'by the truth of history. At the same time it is equally true, that where the intention of testators was to secure to the heir of the first taker the estate and prevent the latter from defeating this intention, the Courts of England have been diligent to 'effectuate this intention, so far as it was legal. Estates tail being legal, they have favored them where they would secure this object, as we should favor them were they legal in Georgia, and carried out the intention of testators. At the same time, it is conceded that remote executory inter•ests in land are not favored, because they tie up estates. But it must be admitted, that entailment of estates (especially ■since by fine and recovery the entail can be docked) are favored both by the Courts and legislation of Great Britan.
I am constrained, therefore, to' withhold my assent from the criticism and strictures of Counsel, as it respects this •“ hoary error of Judges and Courts.”
But to the argument: Does the Act of 1821 [New Digest, 169,) prescribe any such rigid rule as that contended for? Are we constrained thereby, not only to disregard the manifest intention of testators in cases of realty in obedience to the English decisions, but are we forced to go far back of ¡the intelligence and equity of the English Courts and apply •to bequests of personalty a rule never before prescribed by the Courts in England or America ? Are we compelled, by this Act, to impute to testators an intention which their very words declare to be false, and refuse to carry out an intention plainly expressed, because of some English policy connected with their landed interests unknown to and uncared for by ■by the testator ? I should hesitate long before I could be*830lieve that the clearest language could manifest such an intention on the part of our Legislature.
The Act of 1821 evidently does not. If there be any authority in the decisions of this Court, (and if there be not, let it be abolished — the sooner the better,) this question has long since been settled. In the case of Roberts and Wife vs. West, (15 Ga. Rep. 123,) one of my brethren now, as Counsel then, urged upon our consideration this construction of the Act of 1821. The Court were unanimous in over-ruling it. In -other cases since that, especially in Harris, adm’r, vs. Smith, ex’r, (16 Ga. Rep. 545,) it was again argued before us, and again unanimously over-ruled. In writing out the opinion in that case, my late most highly esteemed colleague, Judge Starnes, argues this question ably and elaborately. In Hollifield vs. Stell, (17 Ga. Rep. 280,) the point decided was, that a mere limitation over to persons in being, did not save the case from the rule against perpetuities; (against which ruling there is more authority than I was aware of at the time it was made;) yet, this topic was discussed, and the previous position occupied by this Court as to the proper construction of the Act of 1821 reviewed and re-affirmed.
But more ■ than this: every decision in our Courts for thirty-five years upon similar questions have been wrong. The cotemporaneous exposition of the Statute by the Judges in convention in Atwell's Executors vs. Barney, (Dudley, 207,) was wrong. The decisions 'of this Court upon these doctrines for eleven years, and running through twenty volumes, are all wrong. The rights of property which have been established by this uniform current of decisions, are all to be disturbed and put in jeopardy. Titles considered good under the law, are to be rendered worthless. And all this to be effected by imputing to the Legislature an intention which they, nor the bar, nor the bench ever discovered, until the generation which enacted and expounded the law have passed away.
It does seem to me that sitting, as we do, as the Dernier Forum in the State, we should pause before consenting to lay *831such heavy hands upon the adjudications of all of our Courts and the rights of property of our fellow-citizens. I may be too conservative upon the doctrine of stare decisis. Old Judges, old laws, is an ancient proverb, and perhaps with Some, a standing stigma in jurisprudence. But my firm persuasion is, that until precedents are abolished altogether, and every case shall be tried upon its own merits, according to the broadest principles of equity, “bad decisions are better than no decisions; and that variable judgments are worse than none, for they leave men in increased doubt as to their1 relative or respective rights.” Counsel are at a ibss how to-advise clients, and the citizen is at sea in making his contracts. And what is more deplorable still, when he sits down to declare what disposition shall be made of his property after his death, he finds the law in a state of confusion upon this subject, from which nothing but a miracle can redeem his «state so as to effectuate his intention.
And to render such a revolution in our laws most inopportune at this time, in 1854 our Legislature (Pamphlet Acts, p. 72) swept away all this legal learning and technicality, by declaring that thereafter all limitations of property, either real or personal, so as to vest in another upon the first taker dying without issue or heirs, &c. shall be held to mean a definite failure of issue. This Act is in harmony with the spirit of all the past adjudications of the Courts; and is, of itself, the best answer to the argument of Counsel against allowing a reasonable limitation of property. Whenever this privilege shall be abused, it will be time enough to meet the evil by legislation.
I could content myself with resting here the grounds of’ my dissent to the judgment of the Court; but 1 prefer to add a few words to the reasons I assigned in Hollifield vs. Stell for my disagreement to the interpretation, now for the first time put upon the Act of 1821.
When we come to a literal construction of the Act, (and it is upon this that the argument on the other side is based,) we find that it extends only to gifts, &c. “ expressed in such^ *832terms as that the same would have passed an estate tail in real property hy the Statute of Westminster 2d.” Now the Statute of Westminster 2d, as I have already shown, has-nothing todo with “remote limitations” and “estates tail by implication.” Literally, there are only three cases where-the gift could be “ expressed in such terms as that the same would have passed an estate tail in real property, by the Statute of Westminster 2d.” That is the three cases mentioned in that Statute: 1st. A gift to a man and his wife, and to the heirs begotten of their bodies. 2d. A gift in frankmarriage. 3d. A gift to another and the heirs of his body issuing. It cannot be pretended, therefore, that any of the cases of remote limitations or implied estates tail come within the language of the Statute de donis. But, says the Counsel, we must not stick in the letter, but look to the cotemporaneous construction of the Courts. But if it is insisted that I am to give a literal construction to the Act of' 1821, then I must carry out that literal construction to the-Statute de donis, to which it refers.
But the true rule is, to seek diligently for the legislative mind and meaning in both cases and give effect to them. The preamble to the Act of 1821 shows what the evil was. It was not, as urged by Counsel, the want of some fixed, uniform rule of construction on these questions of remote limitations, to remedy which this Act was passed. The evil was, that estates tail having been abolished by the Constitution and by the Act of 1799, the Courts had differed as to the effect of that abolition upon clauses creating such estates —some holding that the conveyances themselves were void; others, that they vested a fee simple ; and others, that they vested a fee-conditional. To remove these doubts, and to prevent the defeating of the intention of the parties, the Act of 1821 was passed, converting all estates tail into fee-simples. Here is the evil, here the remedy and here the legislative will. Now to impute to the authors of this law the intention of defeating the intention of the parties by prescribing *833the rule contended for, is to convict the General Assembly of a falsehood as well as a folly.
If, then, this is not the proper construction of the Act of 1821, the whole argument falls to the ground.
I have not seen proper to inquire whether, admitting this to' be the proper construction of the Act, the other proposition is true, that under the English decisions, as to realty, the words of survivorship do not restrict the other words to a definite failure of issue, preferring to place my dissent distinctly upon the construction given to the Act of 1821. I cannot forbear, however, remarking that the case of Pells vs. Brown, (Cro. Jac. 590,) was a case of realty where the words u living W,” were held to restrict the words, “ dying without issue.” And that this case was declared by Lord Kenyon to be the Magna Charta of this branch of the law. (Porter vs. Bradley, (8 Term Rep. 145.) And that the industry of Mr. Lewis has been able to find only two cases which seem to be adverse. And that his conclusion is, “ that this legal interpretation of the word survivors,” (viz : to mean others,) as applicable to limitations of real estates, “ rests upon general professional opinion, rather than an express judicial authority.” {Lewis on Perpetuities, 222.) So that, so far as the case at bar is concerned, we should in no view of it be bound by any such fetters as would force us to shut our eyes to the plain, palpable and incontrovertible intention of the testator.