The opinion of the court was delivered June 16, by
Chambers, J.William Willis, by his will, made in 1800, devised the lands in controversy to his “ son Samuel, and to his «heirs and assigns,” to have and to hold “to him my said son Samuel Willis, and to his heirs and assigns for ever, he or they paying thereout and therefor certain legacies.” And in a subsequent part of the will it is provided, “ and in ease, my said son Samuel should die before he marries, then all that part of-the estate which I have devised to him, in that case I give and devise to my son Joel Willis, his heirs and assigns, to have and to hold to him my said son Joel, his heirs and assigns for ever, in as full and ample a manner as my son Samuel held, or was to have held the same, and subject to the same conditions and payments,” with a further charge of ¿£460 to his daughters. At the date of the will, Samuel was of the age of twenty-two, unmarried, residing on the mansion farm devised, with his father, who lived about thirteen months after the making of his will. Samuel, at the death of his father, entered into the possession of the land devised, and paid the legacies charged in the will, and died in 1848 intestate, and without having been married. The plaintiffs, devisees of Joel Willis, claim the land in controversy under the limitation contained in the will of William Willis in favour of their testator, Joel Willis. This case has been prepared with great industry and research by the counsel on both sides, who have argued it with much learning and ability.
It is ever professed by courts, that the construction to be put on wills is to execute and carry out the intention of the testator, if that intention can be discovered, and does not contravene some established rule or principle of law. Artificial rules of law have been adopted from necessity, and called in to aid in giving effect to a general intent, conflicting with some particular intent in the same will, or to supply some obscurity in the full intent of the testator, and to sustain'the policy of the law.
By the will of William Willis, a fee is devised in the mansion farm to his son Samuel, and the question is, when, and on what event was it made defeasible, and limited over to his son Joel, his heirs and assigns ?
*339The non-marriage of Samuel was an event that received' the attention of the testator, as worthy of testamentary provision. It was not on the death alone of Samuel that the estate was limited over to Joel, as it is provided “in case my son Samuel should die before he marries, then all that part of my estate which I have devised to him, in that case I give and bequeath to my son Joel Willis, his heirs and assigns.”
But it is death, without marriage. The limitation over is not .on the contingency of his death in testator’s lifetime, as averred by the defendants, nor is it on the event of his death with or without issue, as in cases of limitation — but “before he marries.” If he dies before his marriage, then, says the testator, I devise the estate to Joel. The estate was to go over on the contingency of the death of Samuel at any time without marriage.
The property was to pass to Joel when such non-marriage could only become certain, to wit, at Samuel’s death. The manifest intention of testator was, that of his children, Samuel and Joel were the only ones to have and enjoy his mansion farm as provided in his will.
The testator was providing for the disposition of his estate after his decease, and must be supposed to refer to events, and their occurrence in time subsequent to his death. That time subsequent to his decease was alone in the contemplation of testator is to he inferred from the payment of the legacies charged, which were to extend from one to six years after his decease; and where he imposed limitations of time as to payments and minute matters, we are not to suppose that the occurrence of the marriage of Samuel, which he would seem to have regarded with interest, was not to apply to the devise to Samuel after the death of the testator.
. The provisions and terms of this will are strong to show that the testator contemplated and provided for the death of Samuel, without marriage, at any period of his life, as the time and event on which the property in controversy was to pass ever to Joel.
It is contended, on the part of the defendants, that Samuel took an indefeasible estate in fee simple on his father’s death, subject only to payment of legacies, with no other limitation; that Joel, by the will, was to take only in case the devise to Samuel should lapse by his death in the lifetime of their father. To sustain this construction, it was alleged that, by a rule of construction established by authority, a devise over in the event of death, when the first devisee is>to take immediately, is construed to mean death in the lifetime of the testator, and that the rule is not confined to cases where death alone is mentioned without any qualification, but has been applied to cases where the estate is directed to go over if either of the first devisees “ should happen to die without child or children lawfully begotten:” Clayton v. Lowe, 5 Barn. & *340Ald. 636; or should die without leaving child or children: Doe v. Sparrow, 13 East 359; or should die without issue born alive, Caldwell v. Skilton, 1 Harris 152.
Mr. Powell, in the 37th chapter of his treatise on Devises, after reviewing some of the leading eases in relation to the artificial rule, says — “ But in eases of immediate gifts, it is generally true that a bequest over, in the event of the death of the preceding legatee, refers to that event occurring in the lifetime of the testator; yet this construction is only made ex necessitate rei, from the absence of any other period to which the words may be referred, as a testator is not supposed to contemplate the event of himself surviving the objects of his bounty:” 2 Pow. Dev. 763-65.
This rule, admitted to be artificial, is not of uniform application where other collateral events are connected with the death. The ease of Lippincott v. Warder, 14 Ser. & R. 115, is in conflict with the rule of construction insisted on, and is to be respected from the consideration given to it and exhibited by the learned judge who delivered the opinion. Mr. Jarman states, “It will commonly be found, it is conceived, that where the context is silent, the words referring to the death of the prior legatee in connection with some collateral event, apply to the contingency happening as well after as before the death of the testator:” 2 Jarman on Wills 687. The case of Clayton v. Lowe was not a case of such deliberate adjudication as to be relied on; and in the case of Doe v. Sparrow, 13 East 359, Lord Ellenborough, in construing the will, says, “the limitations to the executors and to his brother are confined in express terms to the event of the death of his son and daughter in his lifetime; and from thence it is inferred that he was contemplating a death in his lifetime in the preceding clause.”
In Caldwell v. Skilton, 1 Harris 153, the decision is distinctly placed, as to the construction of the will, on the evidence of intentj to be inferred from its context, being'in conformity to the rule referred to; and to avoid the incongruity which must result from any other construction, in carrying out the provisions of the'will and the general intention of the testator. The case last referred to as made by this court, was a tenancy in common to the first takers with survivorship, a circumstance that had its influence on the opinion of the court. The opinion of the court, as delivered by Justice Bell, in Caldwell v. Skilton, has our entire approbation. In the case of Johnson v. Morton, 10 Barr 245, referred to, words giving an estate of inheritance before the act of 1833, were held from the context to pass a fee; and the artificial limitation of the time of death, was recognised, as applying in that case, where there was a devise to several daughters or the survivor of them; and Justice Rogers, whilst he applied the rule in aid of the intention of the testator to provide for' a death in his lifetime, *341says, “the devise affording no other point of time to which they could be referred.”
In this case now under consideration, there is no tenancy in common with survivorship; nor in the contingency contemplated, of the limitation over to Joel on the death of Samuel at any time before marriage, would the obvious general intention of the testator be frustrated by giving to the words of the will their common and ordinary interpretation.
It is to be remarked, that none of the cases referred to and relied on for the defendants, connect marriage with the event of death. Non-marriage is a good condition of defeasance : 2 Strange 1175; and in Griffith v. Woodward, 1 Yeates 316, it was by the will provided, “if either of my said sons shall happen to depart this life unmarried, and without lawful issue, then” the survivor was to enjoy all: it was held that marriage prevented the executory devisee from taking. In the last ease, the court say that the testator “probably intended to tempt his sons to marry, and therefore subjected their lands to that condition.” If the testator in this ease be considered as holding out an inducement to his son Samuel to marry, by making the estate devised to him absolute on marriage, it must be intended as referring to a marriage not during the short time of the testator’s nearly spent life, but to a time after his death, when Samuel became acquainted with the devise to him of the mansion farm in fee, but with a limitation over to his brother Joel and his heirs in case Samuel should die before he marries.
In the cases which limit the death to the testator’s lifetime, it is admitted that it is adopted from necessity, in aid of what was considered the general intent of the testator, and was not applied where the first taker is referred to or treated as living at a period subsequent to the death of the testator. That the testator did not contemplate the death of his son Samuel to occur before his own, is, as we have observed, to be inferred from the terms used to express the contingency and the limitation; but is also confirmed by other dispositions in the will in relation to Samuel, which have reference to a time subsequent to testator’s death. The will devises to Samuel the grain which is growing on the ground at testator’s decease, allows him to take at low prices, after testator’s decease, stock which testator shall have left, and other stock at the appraisement; gives him the option and the right to give land to his sisters in lieu of pecuniary legacies, payable one, two, and four years after testator’s decease. These and other provisions, to be executed by Samuel after testator’s decease, are to be regarded in confirmation of the construction we have adopted to effectuate the intention of the testator in limiting the estate over to Joel on the death of Samuel after the testator’s decease, in case Samuel should die before he marries. Samuel having died unmarried, the estate passed by executory devise to the heirs or devisees of Joel *342Willis. There is no rule of law contravened by this limitation. That a fee simple may by executory devise be limited after a fee simple vested or contingent, is well established: Fearne on Rem. 395-6-7; 2 Bin. 532, Hauer’s Lessee v. Sheetz.
The limitation over is not on an event too remote, but, being to occur within a life in being, is good as an executory devise, as is well settled. However sound public policy may be against locking up estates from alienation or disposition, and protracting the acquisition of the absolute interest in or dominion over property, yet any change of the law on this subject is to be made by legislative provision, and not by the judiciary, who ar.e not to indulge in judicial legislation, but as expounders of the established law are bound to maintain it and the line which divides judicial from legislative functions. Where there exist provisions in the will evidencing a particular intent, and directory in small matters in the distribution of the estate or fund, they must be made to yield and conform to the general intent as manifested and to be executed, and with which they may appear to .conflict. The representatives of Joel are to take the estate in fee, and to hold the same in as full and ample a manner as Samuel held or was to have held the same, and subject to the same conditions ■ and payments; and they are to pay the further sum of £460, to be divided amongst testator’s daughters or their representatives, as well as refund and pay to the’ representatives of the estate of William Willis, the testator, what Joel or his representatives may have received out of the residuary estate of the testator. Some of the provisions that were personal in their application to Samuel, and not to Joel, cannot apply to Joel or his heirs or devisees, who from necessity must take the said estate discharged from such conditions as were applicable only to Samuel as dying before he marries, which could 'not be annexed to the devise to Joel, who was married, and from paying .over to legatees legacies already paid by Samuel in his lifetime. Such provisions, being not applicable to Joel or his representatives, are to be rejected as immaterial and inoperative at this time, to effectuate the manifest general intent of the testator in limiting his estate to his sons Samuel and Joel.
It is the opinion of the court on the will of William Willis, that the testator contemplated the death of his son Samuel, whenever it might happen before marriage, as the event on which the estate devised was limited over in fee to Joel, his heirs and assigns; and as Samuel did die before he married, the estate, by the limitation, became -the property of the heirs or devisees of Joel. Under this opinion, the judgment of the court below on the special verdict is reversed, and judgment entered for the plaintiffs — subject to the payment of the legacies charged on the premises, if not paid, and subject to the payment of four hundred and sixty pounds to the daughters of William Willis or their representatives, and to the *343•payment to tbe same, in tbe manner provided in tbe will, of wbat Joel may have received out of the residuary estate, being, as stated, the sum of one hundred and thirty-six pounds, nineteen shillings and nine pence.