IN EQUITY.

#### Bailey & others v. Davis & others, executors of Thomas Davis.

From Pasquotank.

Devise as follows : cs After the marriage of my wife, or either of my daughters, I want my estate equally divided between my wife A. my daughter G. and my daughter S. and in case either of my daughters should die without lawful heirs of-her body, her proportion of my estate is to go to the other daughter, and in case both should die without lawful heir, I wish it to be divided between my brother Benjamin’s four children.” The daughters died ini ants, and intes-tates and on a bill filed by B’s four Children, it was held that the expressions used did not limit the failure of issue of the daughters to • the time of division.

When words would create an estate tail in real estate, they g-ive the absolute property in personalty.

The bill set forth, that Thomas Davis, by bis last will and testament, devised as follows ; “ It is my wish, after the marriage of my wife Ann, or either of my daughters, I want my estate equally divided between my wife Ann, my daughter Georgette, and my daughter Susan-nah | and in case either of my daughters should die without lawful heirs of her body, her proportion of my estate is to go to the other daughter, and in ease both should die without lawful heir, I wish it to be divided between my brother Benjamin’s four children.” The Complainants (who are the four children of Benjamin) then alleged that the testator’s two daughters, Georgette and Susannah, both died infants and intestate, and that the Defendants qualified as executors to the will, and they claimed to be entitled to two-thirds of the estate of Thomas Davis, given by his will to his wife and two daughters. To this bill there was a demurrer, which, by the Court, below, was sustained, and the bill was dismissed with costs i whereupon, the Complainants appealed.

*109Taylor, Chief-Justice,

delivered the opinion of the Court.

The complainants’ claim, under a limitation, in the will of Thomas Davis, on the ground that the failure of heirs of the testator’s two daughters must take place within the period allowed by law. And it is a|l;ued, in the first place, that as the testator made his estate a joint fund, it was plainly his intention, that if either, or both his children should dio before the division, that the re-jnainder over was to take place, as this could not be too remote. But there are no expressions in the will limiting the failure of issue to the time of division, and it was manifestly not his intention that the share of the daughter first dying should go to the complainants ; for he expressly gives it to the surviving daughter, upon the failure of lawful heir of the one so dying. He could not intend to deprive the issue of his daughters, if they happened to die before a division took place $ but the presumption is the other way, that as long as there were issue of his daughters, they should take in preference to the complainants. If, indeed, he had made the limitation over to depend upon his daughters dying without issue before the division, fixing such a period for that as is allowed by law, and they had so died, the limitation, would have been supported. But he has, in fact, directed the division amongst the complainants, “ in case both his daughters should die without lawful hcii* so that if the limitation over is good, it would be effectual whenever the heirs of the surviving daughter should fail, however remote the period should be $ and all this time it would be unalienable by them.

It is further argued for the complainants, that as the words in the will would not, if applied to real property, give an express estate tail, but only an implied one j they ought to be understood restrictively, and to relate only to the daughters dying without heir living at her death in support of which are cited the cases of Forth *110vs. Chapman — ( P. Wins, 663) and M’Kerson vs. Hutchison—(3 P. Wm. 258.) Those cases do notice this distinction, but in -.*ofch of them, it will be observed, there were other expressions in the will, as “leave no issue,” in. the first, and “ without leaving issue,” in the last, in addition to the material circumstances. And, from the cases «Hooted in Fearne, 365, it seems that the distinction no longer exists ; and from more recent cases, it appears that the rule is now understood to be, that where the words would create an estate tail in real estate, they give the absolute property in personalty j and, that in the absence of distinct expressions, restrictive as to the time the law aih ws, the limitation over is void, whatever the intention may be. When the law has affixed a judicial sense to words, Courts are not at liberty to depart from it; for, by so doing, the security of property would be impaired. The bill must be dismissed with costs.'