Subject to the devise, to his daughter Zilpha, of the use and improvement of the premises in question during her natural life, the testator devises the same to his great-grandson, Gorton Arnold, "to be to him, his heirs and assigns forever, if the said Gorton should live to have lawful issue; but if he die without lawful issue, then the whole of said premises shall descend to and be held by his great-grandson, Benjamin" (Arnold), "brother of Gorton, his heirs and assigns forever."
The question is, what estate Gorton Arnold takes under this devise? In construing a devise, the first object is, to ascertain, if possible, from the whole tenor of the will, the intention of the testator, giving to the language of the devise its ordinary and natural interpretation. This intent, so ascertained, is to have effect, if it can, without obviously violating some settled rule of construction, or some positive enactment of law. If an estate be devised to A, and the heirs of his body, but for want of such heirs, then over to B and his heirs, the ordinary construction of this language would vest in A a life estate, and in the event of his dying without having issue, or without leaving issue, the estate or fee would pass over to B.
It is well known, that by a long series of decisions upon wills, certain words have received a certain judicial meaning, and this is often different from their popular meaning; and when these words are used, the testator is presumed to use them in their legal and not in their popular sense. So that, if a devise be to A, and the heirs of his body, it is not a life estate in A, but an estate tail. Again, if an estate be devised to A, and his heirs, or his heirs and assigns, but if he die without lawful issue, then over to B, this also is an estate tail in A, by implication, for the words, — "dying without lawful issue," — imply an intent in the testator to limit the estate to the lineal or blood heirs, as distinguished from the collateral heirs of the devisee. 2 Jarman on Wills, 173. So, if the technical words of procreation, which expressly create an estate tail, as well as the words, — "die without *Page 196 issue," — which are the words ordinarily implying an estate tail, — be both omitted, if such other words are used as manifest a plain intent in the testator, to limit the estate to the heirs of the body of the first taker, he will take an estate tail, by implication also. Ib. 170-172.
Regarding this as a devise to Gorton, "his heirs and assigns forever, but if he die without lawful issue," then over to Benjamin, it is an estate tail in Gorton, with remainder over to Benjamin, expectant on the determination of the estate tail. But the devise is to Gorton, "to be to him, his heirs and assigns forever, if he should live to have lawful issue; but if he die without lawful issue," then over to Benjamin. We see nothing in the use, by the testator, of the word "assigns," whether alone or taken with the context, to lead us to suppose that he attached to this word any particular significance, or that he used it as a word of special import. Its introduction did not enlarge, nor would its omission have restrained, Gorton's estate. Having, in the same item of his will, by fit words, given to Zilpha a life estate, the testator, now, by the use of the words "heirs" as well as "assigns," intends to pass a fee; and in Gorton it may be a fee tail, as well as a fee simple conditional.
Again, the devise is to Gorton, if he should live to have lawful issue; but if he die without such issue, then over to Benjamin. The words, — "die without issue," — standing alone and unexplained by the context, import an indefinite failure of issue, and so create in the devisee an estate tail. But this expression is used in connection with and follows immediately upon the clause, "if he should live to have lawful issue." Does this latter clause so vary or control the legal effect of the former, as to vest in Gorton a different estate? The ordinary meaning of the words, if he shall live to have issue is, if he shall have any issue, — if he shall have any children; and no rule of construction, so far as we know, has attached to them any other meaning. If he (Gorton) has issue, such issue, or those from whom such issue descend, must be begotten while Gorton lives. Saying, therefore, — "if he shall live to have" "issue," — is saying no more than to say, — if he shall have issue. It is settled, that the words, — "if he have no issue," or "if he die before he has any issue," — *Page 197 standing alone, import an indefinite failure of issue. InNewton v. Barnardine, Moo. R. 127, a devise to C., and if he die before he had any issue of his body, then over, was held an estate tail by implication, the words, — if he die before he has issue, — being construed as identical with the words, — if he die without issue. In Doe, d. Jearrad v. Bannister, 7 Mees. Welsb. 292, the devise was to Mrs. S. and her heirs, if she hasany child, if not, upon her decease, over. It was held that Mrs. S. took an estate tail. If the words, — "if she has any child," — import an estate tail, do the words, — if she has any issue, or if he lives to have any issue, — import a different estate? If these cases are authority, they indicate that a devise to Gorton, his heirs and assigns, if he shall live to have lawful issue, vests in Gorton an estate tail; but when taken in connection with the clause, — "if he die without lawful issue," — which are the apt words from which such an estate is implied, we think there can be no doubt of the legal effect of this devise.
Again, if the two clauses in question are contradictory, — if they devise, or seem to devise, the same thing in two different ways, then the last devise is the operative one. 6 Greenlf's Cruise, 149.
If an estate can take effect in the ulterior devisee as a remainder, it shall not be construed to be a limitation over by way of executory devise. 4 Kent's Com. 263; 3 T.R. 489, n. A devise to M. and to the heirs of her body, followed by the words, — "in case she shall die not leaving child or children living at her decease," "to my heir male and his heirs male," c., — was held an estate tail in M. Driver v. Edgar, Cowper, 379. If the devise in question had been to Gorton, c., if he should live to have lawful issue, living at his death, or if he die without lawful issue then living, or words of like meaning, he would have taken a qualified fee simple, and the limitation over to Benjamin would have been good by way of executory devise. But limitations over of this nature are not to be raised by inference. The testator must make it manifest, by express words, or by clear and plain implication, that he refers to, and intends, a failure of issue at the time of the death of the first or prior devisee.
Whatever intention may have rested in the mind of this testator, *Page 198 of which we know nothing except so far as it may be gathered from the language of his will, the only construction that will execute this devise, conformably to the rules of law, is, by an estate tail in Gorton, with a remainder over in Benjamin, expectant on the determination of the estate tail. *Page 199