The opinion of the court was delivered by
McIver, A. J.This case depends upon the construction of the will of James Graham, Sr., and the question is, whether the attempted limitation over to William Graham, after the devise to James, the grandson, is good. In one clause of the will the testator declares as follows: “And my will is that at my son William’s death, the above-mentioned plantation and all other lands not hereafter mentioned, shall be vested in and be the property of my grandson, James Graham, and son of William Graham; and if the said James Graham should die not having any male heir, then and in that case the above lands to be the property of his brother, William Graham.” After making ■several similar devises to others of his grandsons, the testator proceeds as follows: “ And my will is, and be it well understood, that the before-mentioned lands that is hereby willed to the before-mentioned legatees, shall not be alienated or conveyed by them nor their heirs, but shall, at each of their deaths, descend to each of their oldest male heirs, and so on in regular succession.”
Thé clauses in the will are not numbered, but as these two, which are above quoted, are the only ones which throw any light upon the question under consideration, they will, for convenience sake, be referred to as the first and second clauses.
It appears from the evidence that James, the devisee named in the first clause, married and had issue — a son and a daughter by his first wife, and two others, children of a second wife — and after the birth of such issue and before their death, he conveyed the land in dispute to the person under whom the defendant .claims. The said James died lately, leaving no child surviving *118Mm, but leaving a grandson, the child of a daughter. After the-death of James, William, the remainderman named in the first clause, conveyed the land to the plaintiff.
The provisions of the act of 1853 (12 Stat. 298) cannot be-applied to this case, inasmuch as by the express terms of that act its provisions are to be applied only to deeds or other instruments in writing not testamentary, executed after the passage of' the act, or to wills of testators dying after that act was passed. Here the testator died long before the passage of the act of 1853,. and therefore the inquiry must be what was the estate created in the grandson James, by the terms of the will under consideration, construed by the law as it stood prior to the passage of that act. If the first clause of the will stood alone, it is very obvious that the attempted limitation over to William must fail for remoteness, and the devise to James would create in him a fee simple. The words. “ shall be vested in and be the ¡property of' my grandson James,” would, if nothing more were added, undoubtedly give him the fee. For, although this will took effect prior to the passage of the act of 1824, and although there are-no words of inheritance in the devise to James, yet it has been settled by repeated adjudications in this state that the provisions of that act simply declare a rule of construction and apply as well to wills taking effect before as to those taking effect after the passage of the act of 1824. Dunlap v. Crawford, 2 McC. Ch. 171; Hall v. Goodwyn, 4 McC. 442; Peyton v. Smith, 4 McC. 476; Bowers v. Newman, 2 McM. 472. What, then, is the effect of the superadded words: “and if the said James Graham should die not having any male heir, then and in that case the above lands to be the property of his brother, William Graham.” The words “ die not having any male heir,” must be regarded as not so effectual to tie up the generality of the expression as the words “ die not leaving any male heir;” for, as Johnson, Chancellor, in Hay v. Hay, 3 Rich. Eg. 387, in speaking of the word “ leaving,” says, it is “a word that has been held to indicate the time of the first taker’s death, as pointing out the juncture when he leaves (separates or departs from) his issue, who are then left living behind him.” And yet, ever since the case of Forth v. Chapman, 1 P. Wms. 663, the rule has been well established in *119England that the words “ die leaving no issue,” or other equivalent words, would not create a valid limitation over of real estate, but that such limitation, as to that kind of property, would be too remote, as importing an indefinite failure of issue, and not a failure of issue at the time of the death of the first taker. The rule established by that case was adopted in.this state and uniformly followed until the legislature saw fit to interpose by passing the act of 1853, which, as we have seen, does not apply in this case. Mazyck v. Vanderhorst, Bail. Eq. 48; Adams v. Chaplin, 1 Hill Ch. 265; Hay v. Hay, 3 Rich. Eq. 384; Curry v. Sims and Jeter, 11 Rich. 489.
The manifest intention of the second clause of the will above quoted was to create a perpetuity in the male line of the testator, and, as this is contrary to the policy of the law, such a construction is inadmissible. But the two clauses of the will should be read together, and so reading them we have a devise to James, and, at his death, to his oldest male heir, and in case he should die not having any male heir, then over. This would create a fee'conditional in James ( Whitworth v. Stuckey, 1 Rich. Eq. 404,) and he having alienated after the birth of issue the alienation is good, and not only cuts off the descent to his male heir per for-mam doni, but defeats the reversion to the testator or his heirs upon the failure of such issue, even though such issue may have died before him. Barksdale v. Gammage, 3 Rich. Eq. 271.
Again: James Graham did have a male heir at the time of his death, a grandson, who was the son of a daughter, and, under' the case of Beckham v. De Saussure, 9 Rich. 531, it may well be doubted whether the contingency has happened' in which the estate was to go over to William.
It seems to us, therefore, that in any view which may be taken of the case the judgment of the Circuit Court must stand..
So far as the third ground of appeal is concerned, it is only necessary to say that, inasmuch as the case depended solely upon questions of law, it was not only the right but the duty of the Circuit judge to instruct the jury as he did.
The judgment of the Circuit Court is affirmed.
Willard, C. J., concurred.