Steward v. Knight. the possibility that he might not even live to have children was obviously within the view of the testatrix. Bearing these incidental circumstances in mind as within the contemplation of the testatrix when she made her will, the different contentions of the parties may be considered. The first question to be settled is whether the devise to James passed only a life estate or an estate in fee of some character. It should be noticed that in the devise to James neither the word "heirs" nor anything equivalent to it is used to define James' estate. There may be some doubt whether the statute of August 26th, 1784 (Rev. L. p. 60, which appears in Gen. Stat. p. 3763 § 35 et seq.), which declares that estates given by will in general terms, without the use of the word "heirs," or its equivalent, should pass a fee, is applicable to the devise now under review. That statute declares itself to be applicable only when in the will to-be affected by it there is "no further devise of the devised premises after the decease of the first devisee." In this case, if James should die without children, the property was given over to his surviving brothers and sisters. On the point whether such a gift over prevents the application of the statute, the decisions are not entirely harmonious. In Den v. Allaire, Spenc. 7, 8, there was a primary devise to Charles, in which no words of inheritance were used, and then a subsequent limitation over in these words: "It is my will that in case either of my sons before named should die without issue, that his share be equally divided between my surviving sons," &c. The supreme court held that, although no words of inheritance were used, the primary devise to Charles was a fee, under the statute of August 5th, 1784. That court did not appear to consider that the subsequent limitation over in case Charles died without issue was such a further devise as to prevent the application of the act of 1784. See Spenc. 8, 24. It may be that the learned judges were of opinion that as the limitation over was not solely dependent upon the death of Charles, but required also that he die without issue, and that his brothers or sisters should survive him, the statute might apply and enlarge the undefined estate into a fee. They did not discuss this phase of the case, but declared that the statute Steward v. Knight. enlarged the devise to Charles into a fee. In a very recent case, presenting on this point the same incidents, Chancellor McGill took a different view. In Brooks v. Kip, 9 Dick. Ch. Rep. 468, there was a devise of real estate to the testator's sons John and Albert, by words which, by the aid of the statute of 1784, would have passed a fee. In a subsequent sixth clause were these words: "I do order that the real estate given to John and Albert, if they should die, or either of them, leaving no child or children as lawful heirs, then the said real estate shall descend to my other children," * The chancellor held that this later clause was such a further devise at the death of John that the statute of 1784 did not apply to pass a fee. The words of the statute declaring its inapplicability in case there is a further devise after the decease of the devisee are without other qualification, and seem to deny its aid to any first devise given in general terms in all cases where there is a further devise after the decease of the primary devisee. In the present case, however, the primary devise is not dependent upon the statute in question to enable it to pass a feesimple estate. Where the primary devise is expressed in general terms in its definition of the estate given, yet if, from the whole will, it can be collected that the testatrix intended to give a fee, the devise will be construed to pass that estate. This result follows where the testatrix has a fee, and by the terms of her will, as in this case, gives her whole estate, though in undefined terms, to her devisee. Her gift intends to pass, not only the whole quantity of her property, but also the whole of her interest therein. She has an estate in fee and she gives an estate in fee. Den v. Allaire, Spenc. 8; Carter v. Gray, 13 Dick. Ch. Rep. 413, and cases there cited. The primary devise to James B. Sinnickson must therefore be held to have passed to him a fee-simple estate. If, however, subsequent words qualify or limit the original gift, a devise which would, without them, pass a fee-simple, may be reduced so as to pass only a less estate. Den v. Taylor, 2 South. 417. The defendants Palmer contend that the words attached to the devise to James, "in case he shall die without Steward v. Knight. children," must be read as if they were "die without issue," and they insist that they must operate to limit the generality of the gift of a fee which would go to James and his heirs general to a devise to him and those particular heirs who might be his children; in short, to him and the heirs of his body, the technical words of an estate tail. They further claim that the effect of such a devise to James and of the devise over was to create an estate tail in James; that the statute of June 13th, 1820 (Rev. L. p. 774 § 2), now the eleventh section of the statute of descents, operated upon this estate, and gave to James a life estate only, and upon his death to his grandchildren, the defendants James L. Palmer and others (who are the issue of his deceased child, Mary Palmer), a fee-simple. If the devise to James B. Sinnickson should be held to have vested in him an estate in fee-tail, the claim of these defendants should be sustained, for the statute of June 13th, 1820 (Rev. L. p. 774 § 2), applies to every possible case in which an estate tail is called into existence (Redstrake v. Townsend, 10 Vr. 378), and executes the estate into a life interest in the first taker and a fee-simple in his children or grandchildren. But even if it be declared that, in using the words "die without children," the testatrix meant "die without issue," it does not follow that the estate James received was a fee-tail. Whether such a devise has this effect depends upon the point whether the will indicates that the testatrix intended the second devise to take effect upon a definite failure of the issue of the first devisee, or upon an indefinite failure of such issue; that is, whether she meant James' brother and sister to take in case he had no issue living at some indicated period-as at his death-which would be a definite failure of issue, or only at some uncertain future period, when all James' descendants might have become extinct. If she intended the former, then such a primary devise has been construed to convey a fee-simple, subject to be defeated by James dying without issue living at the time of his death; if she intended the latter, then, inasmuch as there is a primary gift of an estate in fee to James and his heirs, and as the law cannot contemplate a failure of heirs general, it is held that the testator, by the use of the subsequent limiting words, must have intended Steward v. Knight. the property to go to the primary devisee and the heirs of his body, and not to his heirs general. Den v. Taylor, 2 South. 418. The statute of June 13th, 1820, which executed all estates tail would, in case the latter construction be adopted, give a life interest only to James and a fee-simple to his grandchildren, the Palmers, who survive him. This will was made in 1823, and the testatrix died the same year. A will is of no force until the death of the testator. It then speaks for the first time. It must be construed according to the state of the law at the time when it takes effect. This was, of course, before the act of March 12th, 1851 (Gen. Stat. p. 3761 $25), which declares that words which theretofore imputed an indefinite failure of issue of any person should thereafter be construed to mean a failure of issue in the lifetime or at the death of such person, and not an indefinite failure of issue, unless a contrary intention should appear by the will. The English courts have tended to hold the words "dying without issue," and words of like import, to mean an indefinite failure of issue, unless the indications that the testator intended the limitation over to take place upon a definite happening were of a positive character. In this country the courts, even before statutory enactment on the subject, have been more ready to discover a purpose to vest the limitation over upon a definite failure of issue. In this state the question as to what words will suffice to indicate a definite failure of issue has, I think, for the purposes of this case, been settled by the decisions hereinafter cited. Whether in this case the testatrix intended the limitation over to take effect upon the happening of a definite or an indefinite event must be determined from the language of the will, considered from the point of view of the testatrix, of the pertinent circumstances which surrounded her. The testatrix gave the second devise in these words: "In case he [James] shall die without children, my will then is that both my real and personal estate be divided equally among his surviving brothers and sisters." She thus refers to those of James' brothers and sisters who, at Steward v. Knight. his death, should survive him. They were then, in case there was a default, to have and enjoy the estate. This was, therefore, a gift over at a fixed time, upon the happening of a prescribed event-the death of James without children, leaving a brother or sister him surviving. This view is also supported by the fact, apparent on the face of the will, that the gift over includes personal property, the enjoyment of which by the brothers and sisters the testatrix evidently contemplates as a possibility. This she could hardly have expected if it were postponed to a period so probably remote as the time when all of James' descendants might become extinct. If the words of condition were "die without issue," instead of "die without children," they would still be held to import a failure of issue when James died leaving any of his brothers or sisters surviving, and not a failure when the descendants of James might, at some unindicated future time, become extinct. This view accords with the principles enunciated in the following cases, in which a limitation over in a second devise to survivors, in case the first taker died without issue, was held to intend a definite failure of issue. Den v. Allaire, Spenc. 10, where the words were "in case either of my sons should die without issue, that his share be equally divided between my surviving sons," &c. This case appears to have settled the law on this point in this state. Seddel v. Wills, Spenc. 225; Den v. Howell, Spenc. 415; Kennedy v. Kennedy, 5 Dutch. 188. Den v. Snitcher, 2 Gr. 53, decided in 1833, also touched upon the question. (In this last case cited James B. Sinnickson and his brothers and sisters were parties.) These decisions should control the construction of the words used in the present will. The gift over must, therefore, be held to be limited upon a definite, and not an indefinite, failure of issue, and to give to the first taker an estate in fee, subject to be defeated upon non-performance of the condition imposed, and not a fee-tail executed by the statute. This construction also operated upon the gift over, to make it an executory devise, becoming effective, as is permissible in wills, upon the defeat of the precedently-given fee-simple estate, and not a remainder, con |