dissenting, delivered the following opinion-The question to be decided in this case arises from sundry devises contained in the will of Joseph Griffith, who in bis lifetime being seized in fee of sundry lands and tenements lying in Dorchester county, on or about the 6th of February 1792, made and published his last will and testament according to law, and therein, among other dispositions of his estate, devised his said lands to his two only sons, Joseph and George Griffith, and his three only daughters, Sophia, Sarah and Nancy Griffith, as follows, to wit: “I give and devise unto my rob Joseph Griffith my present dwelling plantation whereon I now live, to him my said son Joseph, his heirs and assigns forever. Stem. I give and devise unto my son George Griffith the plantation whereon Levi Oram now lives, lying on Transquakin .river, or a branch thereof, to him, my said son George, his lieirs and assigns, forever; and my will is, that all the land which I am now possessed of, either by deed, bond or patent, be equally divided between my said two sons Joseph and George, according to quantity and quality, share and share alike, to them their heirs and assigns forever; and in case ei*134ther of my said sons should decease, having no lawful issue, or heirs of his body, that then the surviving son to have his de* ceased brother’s part or moiety of the land aforesaid, to him, his heirs and assigns forever, as aforesaid; and in case both my said sons Joseph and George, shouldMecease, leaving no lawful heirs of their bodies, that then and in such case, I give and devise all my aforesaid lands, devised as aforesaid, unto my three daughters, Sophia, Sarah and Nancy Griffith, to be equally divided between my aforesaid three daughters.” George Griffith, after the death of his father, departed this life intestate, and without issue, never having had any issue, leaving his brother and sisters surviving him. Joseph Griffith also departed this life intestate, and without issue, never having had any issue, leaving his sisters surviving him, all of whom are married and in possession of the premises. Joseph Griffith, the son, died indebted to sundry persons, and did not leave personal estate sufficient to pay his debts. His creditors filed a bill on the; equity side of Dorchester county court against the daughters, and their husbands, for the purpose of obtaining a decree for the sale of the said lands, to pay their debts. A decree passed pro forma in favour of the respondents, from which the complainants appealed to this court. The questions to be decided by this court are first, What estates the sons took under the will of their father? And secondly, Did they derive under that will such an interest in the lands devised to them, as will subject those lands, under the circumstances of this case, to the payment of Joseph’s debts? It is a well settled rule in the exposition of wills, that the intention of the testator, to be collected from the whole will, shall prevail unless it conflicts with -some established principle of law; and as Lord Kenyon said in the case of Wilkinson vs. South, 7 T. R. 553, the only question is, whether on the fair construction of the words of this will, the testator meant that the limitation over to the surviving son should only take effect after an indefinite failure of issue of the first taker, or on a failure of issue living at the time of his death? For, he observes, as soon as that intention is- discovered, there is an end of the case. So in the case of Roe vs. Jeffery, Ibid 591, his Lordship says, speaking on thé subject of executory devises, “We had occasion a few days ago *135to advert to this doctrine, when we said that this is a question of construction, depending on the intention of the party; and nothing can be clearer in point of law, than that if an estate be given to A in fee, and by way of executory devise an estate be given over which may take place, within a life or lives in being, and twenty-one years and the fraction of a year after-wards, the latter is good by way of an executory devise. The question therefore in this and similar cases is, whether from the whole context of the will we can collect, that when an estate is given to A And his heirs forever, but if he die without issue then over, the testator meant dying without issue living at the death of the first taker?” If the latter was intended in the case novY before this court, the limitation over is within the legal limits, and good and available as an executory devise according to the law as settled in the above case. And it is further to be remarked that where it is the apparent intention of the testator to give a fee in the first instance, and there is then a limitation over on a failure of issue, to carry the intention of the testator into effect, the court will lay hold of the smallest circumstance to confine the failure of issue to the death of the first taker, s© as to make the limitation over good as an executory devise. In the ease last referred to, the devise was to T. F. and his heirs forever, and in ease he should depart this life, and leave no issue, then to E, M and S, or the survivor or survivors of them, share and share alike; it was held that the devise to E, M and S, was a good executory devise. The reason upon which this decision was grounded, is strongly nay irresistibly decisive of the case now pending before this court. It was, that the persons to whom the property Was limited over, were then in existence, and life-estates only were given to them. So here the daughters of the testator, Joseph Griffith, were in existence at the time he made his will, and life-estates only were given to them; and this fact strongly indicates the intention of the testator to confine the failure of issue to the death of his two sons; because the limitation over to the daughters was only to take effect on the death of both without leaving issue. The case of Fosdick vs. Cornell, 1 Johns. Rep. 440, is in principle strongly anaiagous to the present. The first devises were in fee, and the will provided, that if any of the devisees should happen to *136die without heirs male of their own bodies, that then the lands should return to the survivors, to be equally divided between them. Judge Thompson, in delivering the opinion of the court, remarks, “This is a question of construction, depending on the intention of the testator; and from the whole will taken together, I cannot entertain a doubt that he meant to provide, that in case any of the devisees, named in the clause, should die without leaving male issue at the time of his death, his portion should be divided among the survivors.” The limitation over being to the survivors, seems to have had considerable weight in bringing him to the conclusion, that it was good by way of executory devise, it restraining the failure of issue to the time of the death of the first taker. The case of Jackson vs. Blanshaw, 3 Johns. Rep. 292, is strongly analagous to the case now before this court, or more, properly speaking, is a ease in point, and decides the question which now awaits the determination of this tribunal. After giving some legacies, the testator devised to his six children their heirs and assigns-forever, all the remainder of his real and personal estate, to be equally divided among them; but if any one of his children should die before full age, or without lawful issue, then his or her part to devolve upon, and be equally divided among the rest of his surviving children, to their heirs and assigns forever. In that case Spencer, Justice, in delivering his opinion, says, “The grandchildren cannot be considered as the surviving children within the intention of the testator.” So in this case, the surviving son cannot be considered as the surviving grandson within the intention of the testator; and if not, then the limitation over to the surviving son, though in fee, is clearly good as an executory devise, and within the legal limits which the law indulges to a man’s last will and testament in such cases. If then the devise over to the surviving son was good as an executory devise, Joseph, the son, did not take an estate tail, but took a defeasible fee, in the part devised to him by the will, and.on the death of Georgs without issue took the same estate in the part devised to George; and on Joseph’s death without issue, the whole estate went over to the surviving daughters by way of executory devise for life. Wooddisson, in his lectures on executory devises, 225, says, there are two *137sorts of executory devises, one where the fee-simple passes, another where the fee does not pass, but in the interim descends to the heirs. The example of the first sort which he gives is, where a testator devised to A, and his heirs forever, and if he died without issue living B, then B to have those lands, to him and his heirs forever; and, he says, it was adjudged that A took a vested fee simple. In this case, then, on the death of George, without issue, the whole fee simple in the lands devised vested in Joseph: and it was only on his death without issue that his right to the whole tee ceased; on that event the testator devised the lands to his daughters for life, leaving the fee undisposed of; but the daughters being then his heirs at law, the fee descended to them, and the life estates became merged in it. For it was only on the death of Joseph, without issue, that there was any interest or estate to vest in the heirs of the testator, the whole fee simple being in him during his life. According to this view of the subject the decree of Dorchester county court ought to be affirmed; No estate tail being given to Joseph Griffith by the will of his father, it is unnecessary to decide whether, if he had taken such an estate, it would have been liable, on his death, to the payment of his debts, under our act of assembly regulating the law of descents,, The question is a highly important and novel one. In Davis vs. Jacquin & Pomerait, 5 Harr. & Johns. 109, this court in construing the law giving to females a right to possess their property at the age of sixteen, express themselves in the following manner: “That this act (1798, eh, 101,) has not in terms declared, that the infancy of females shall cease at the age of sixteen, will be admitted; and it is difficult.to conceive why the legislature, if they intended to destroy this important feature of the common law, did not pointedly declare their intention, instead of leaving it to be inferred by reasoning. ” So here no part of the act of descents declares in terms, that an estate tail shall on the death of tenant in tail be liable for the payment of his debts, but only declares that it shall be descendible as a fee simple. If it had been the intention of the leg laturo to make so important a change in the law relative to er,tales tail, it is to be presumed they would have declared such in on in express terms, and not leave it to be collected *138from argumentative inference or deduction. It has moreover been, it is believed, the universal understanding, that estates tail were not liable for the debts of tenant in tail; and the practice has been to dock such estates in the manner prescribed by the act of 1782, ch. 23, as well since and before the act of descents. This last mentioned act speaks of the tenant dying seized of an estate tail, intestate thereof; recognising the continuance of the entail to the time of the tenant’s death, and giving it only the properties of an estate in fee, as to the course and manner of its descent after his death. In 1 Bacon’s Abridgment, 703, the law is stated to be, that the estates of copyholders shall descend to their heirs, and such descent shall be governed by the rules of the common law, but not to have all the collateral qualities of estates in fee simple; for it is not assets in the heirs hands; so that the circumstance of the lands being made descendible to the heirs general, in the same manner as fee simple estates, is hot, it seems, sufficient per se to make them liable in the hands of the heirs for the debts of the ancestor. But that lands held in fee tail general, have not all the qualities and attributes of estates in fee simple, it is only necessary to refer to the act of 1798, ch. 101. That act declares that all lands which might pass by deed, or which would in case of intestacy, descend to or devolve on “his or her heirs, or other representatives,” except estates tail, may be disposed of by last will and testament. The Supreme Court of the United States, in Stuart vs. Laird, 1 Cranch, 309, in speaking of the effect of a practice under a law, say, that practice and acquiescence under it for a period of several years, fixes the construction. It is a contemporary interpretation of the most forcible nature. Such a practical exposition is too strong and obstinate to be shaken or controled. That such a construction puts the question at rest, and that it ought not to be disturbed. So here the long understanding and practice under the act of descents, puts the question at rest, and it ought not now to be disturbed. I am of opinion that the decree ought to be affirmed.
DECREE REVERSED, (a.)
) The doctrine that “if there be a devise to one generally of free» hold, without any words of limitation, he will take an estate for life only *139la the freehold,’’ is changed in this state by the act of 1825, ch. 119, by which it is enacted, that after the 1st of April 1825, devises of land or real property, without words of perpetuity or limitation, shall pass the entire éstate of the testator in such property, unless it shall appear by devise over, ©r by weds of limitation, or otherwise, that the testator intended to dc-piss a less estate.