The opinion of the court was delivered, July 3d 1867, by
Read, J.— The title of the plaintiffs depends upon the construction of two clauses in the will of David Walker, dated the 27th August 1829 and proved September 23d 1831:—
“6. I give and devise to my beloved daughter, Jean, and to her heirs and assigns, my clock and case, and as much household and kitchen furniture? two cows, six sheep, and as for a case of drawers, mare, saddle and bridle she has already, and all the plantation that I purchased from James Banks, to her and her heirs and assigns for ever, it lying and being in Fermanagh township, bounded by lands of Andrew Banks and others — the above personal property to be equal to what her sisters got at their marriage.”
“ 8. In case any of my daughters dies without heirs of their body, I do, and it is my will that their part as above bequeathed to them be equally divided between the survivors of them and my grandchildren, counting James Walker’s four children one, and Elizabeth Stewart’s four children one.” Jean intermarried with *490James Johnson and died without issue leaving two sisters, Ann Black and Margaret Stinson, and the children and grandchildren of James Walker and Elizabeth Stewart surviving her.
Ann Black died in 1863, without issue, devising her interest in the land in dispute to Margaret Stinson. Margaret Stinson died without issue, and by her will devised the land in dispute to John McMeen, the defendant.
The plaintiffs contend that the two sisters took but a life estate, and, of course, Margaret Stinson could devise nothing to the defendant.
In Johnson v. Currin, 10 Barr 498, these clauses in this will were before this court, and Judge Coulter, delivering the opinion of .the court, held that the intention of the testator was that the word's “ dies without heirs of their body,” was to be limited to the death of the daughter, and if she died leaving no issue living at the time of her death, then the limitation over was to take effect. “ It is evident,” says Judge Coulter, “ however, that he intended to give a fee simple to Jane upon condition of her having heirs of her body in esse at the time of her death; but that if she did not the estate in fee should be extinct and the land should go over as limited in the will. It may vest in them .as an executory devise or even as a remainder contingent upon the first taker having no issue living at the time of her death ; but above all it can be supported as carrying into effect the manifest intent of the testator.”
If this, then, be the law, that the death of Jean Johnson extinguished her estate, then the whole of her part bequeathed went over to Ann Black and Margaret Stinson and the two sets of grandchildren to be equally divided between them, and they became tenants in common in fee simple, for if any of them has a fee all have.
This is too clear to need argument, and such is the opinion of the learned judge in the court below, for reasons it is unnecessary to repeat.
But the case of Johnson v. Currin is not of unshaken authority. Judge Linn’s observations upon it in his Appendix, p. 726, and the unbroken series of later decisions establishing such language as is used in these clauses to create an estate tail in Jean Johnson, would lead us to think that the law as expounded in 10 Barr is not perfectly sound.
If it were an estate tail in Jean Johnson, then it was barred, and her title by divers wills and conveyances is vested in the defendant McMeen.
In any aspect the plaintiffs cannot recover.
Judgment affirmed.