The opinion of the court was delivered by
Gibson, C. J.An action to recover a legacy, being a substitute for a bill in equity, is to be so managed as to take effect without hindrance from common law technicalities. It is immaterial to the beneficial plaintiff who was neither an actual nor potential party to the former suit, that the legal plaintiffs separately recovered another sister’s share of the bequest over; and the only question deserving consideration is, whether the contingency is not too remote; but there is one circumstance indicative of an intention which shows very clearly that it is not. The contingency is one with a double aspect—death without issue and without a will—which must necessarily have happened, if at all, at the death of the first taker in one of two ways. The legacy was then to take a determinate direction for the future, either by the will of the father or the will of the daughter. The daughter’s will would speak at her death, and the contingency of dying without issue was evidently so closely coupled, in the testator’s apprehension, with the idea of her dying with or without one, as to have been inseparable from it; and though there may be an indefinite dying without issue, there can be no indefinite dying without a will. The legacy was to go to the survivors if the dying sister made no will and had no children; but if she made a will, or perhaps an appointment in the nature of one, it was to go to her appointee; but to either, necessarily, at her death. There is, perhaps, no case in which the limitation over of personal estate, after an indefinite dying without issue, whether the first limitation were indefinite or expressly for life, has, ex vi termini, been confined to a dying without issue at the time of the death; but the courts have seized with avidity on any circumstance, however trivial, denoting an intent to fix the contingency at that period. Here it is impossible to doubt of an intent to give the dying sister’-s-'share over, should she not have given it to some one else; and in this respect the case is much stronger than Target v. Gaunt, 1 P. W. 432, though it is very like it, in which a testator devised to his son for life, and no longer, and after his decease to such of the son’s issue as the son should by will appoint; and in case the son should die without issue, then over; and on this will the words were interpreted to mean, issue living at the son’s death, because such issue was intended by the use of the word where it last occurred, as the son might have appointed the term to; consequently, such issue was meant as might have been living at his death. Here the intention is, to say the least, equally clear; and the jury were properly instructed that the plaintiffs were entitled to recover.
Judgment affirmed.