The question arising on the will in discussion is, what estate Gilbert Lane took in the devised premises ? It is my opinion that he took a fee simple, defeasable on specified conditions; that if he had no issue at his death, and his sisters survived him, that they should take the estate.

The devise to Gilbert of all the testator’s “estate” comprehended a fee simple, according to the principle and reason o£ the thing; for “estate” means interest; and all the interest of the testator must mean a fee simple if the testator had one. 1 Salk. 236; 2 P. Wms. 524; 1 T. R. 411; 3 Cranch 134.

But this fee simple was not intended to be absolute: it was qualified by conditions expressed in a subsequent clause of the will in these words : “ if any of my children should die without issue alive, such share shall be divided by the survivors of them.”

The estate of the survivors could not be intended to bo a remainder after a fee simple; because a fee simple is the whole of the estate and nothing is left to go over as a remainder; for which reason a remainder can never be limited on or after a fee.

But the plaintiffs’ counsel argue that the estate of Gilbert could not be a fee simple to his heirs universally and without restriction; because the estate is limited to his “issue,” which term signifies the heirs of his body only ; and marks the estate intended for him to be an estate tail with remainder to the survivors.

*48One impediment to its being an estate tail witli remainder is, that the remainder could not take effect in possession till after an indefinite failure of issue; whereas .the testator had no such thing in his mind as an indefinite failure of issue ; he was only specifying conditions, on the occurrence whereof Gilbert’s fee was to cease; the conditions being that if Gilbert had no issue at his death, and, if his sisters survived or outlived him, they should have the property. The matter resolves itself into a controversy therefore respecting the intent of the testator.

But the plaintiffs’ counsel argue that his intent must be sought for in his words; and his words must be taken in the sense which the law puts upon them : that the words are “ die without issue,” which have been understood in law to mean, always, an indefinite failure of issue and to importan estate tail; that the cases to this effect are numerous; and in Den v. Shenton, (Cowp. 410.) that Lord Mansfield intimates there is not a single case to the contrary.

If this were so I should think it dangerous to shake an interpretation that had' long been settled and had become the foundation on which estates depended; but I think the premises assumed in this argument are fallacious. Not but that the cases are numerous indeed wherein the words “ dying without issue ” have been construed to import an estate tail; nor do I pretend to know a case where these precise words received any other interpretation. But the fallacy in the premises is two fold: first, in assuming the words of Aurie Lane’s will to be “ die without issuethereby rejecting the word “ alive,” and also a whole branch of the sentence in these words, “such share shall be divided by the survivors of them.” Second, that however uniform the construction has been on those precise words “ dying "without issue,” when they stood by themselves alone, there are a number of leading cases -which shew a contrary interpretation in consequence of additional words; and also where other parts of the will evinced that the intent was not to *49create an estate tail, but to express a condition, not to mark out a line of issue, but to describe a state of issue at tbe death of the devisee. Thus Dyer 334 a. was a deviso to the son and his heirs, and if he “ die without issue or issue fail living the testator’s executors ” then to the executors. This was not decided not to be the limitation of au estate tail, and the reason is that the words describe only a state of issue at the death of the son or during the lives of the executors. So in Pells v. Brown (Cro. Ja. 590.) there was a devi.se to Thomas the son, in fee, and if Thomas died without issue living William his brother,” then to AVilliam : it was holden to be no estate tail in Thomas and his issue indefinitely; but to describe a state of things at the death of Thomas, upon the happening of which the property should go over to AVilliam. Now the will of Aurie Lane is, “if any of my children should die without issue alive.” If “dying without issue” imports an indefinite failure; and dying without issue alive imports the same; the word “ alive ” has no operation assigned to it; and to give a word no operatition when it is capable of one is no less than to strike it out and alter the testator’s will; yet who does not see that the word “ alive ” “ refers to the devisee’s death as the antecedent, and describes the state or condition of issue at that precise time. The meaning naturally and gramatieally, and accordingly to the analogy of language is, “if he die, without issue alive when he dies.” It cannot mean, if he die without issue a century hence alive, unless a liberty be taken of interpolating an antecedent in lieu of that in the will. In this respect it resembles the case of Porter v. Bradley (3 T. Rep. 143,) where the words were, “ die leaving no issue behind him,;” the words “behind him” were not understood to mean “ at any time,” but “ at the time of his death.”

If more were needed to show that dying without issue alive meant alive at his death, and not an indefinite failure or estate tail, an additional argument would be found in the *50limitation of survivors. The limitation does not express that the survivors shall take in fee, in tail, or how otherwise, but to the survivors simply; therefore as the law stood at the date of the will they could take the property only for their lives. Can it be believed that a life estate, a personal benefit, was intended to commence after an indefinite failure of issue which might not happen within a century; that the testator inteioded a living for the surviving children and yet postponed .their possession of it for a century; that he intended an estate for their enjoyment in life which might not take place till an hundred years after their death ? The supposition amounts to a contradiction bordering on absurdity. On the other hand what is more plain and natural; that if a child had no issue at the time of its death, and it died in the lifetime of the other two, that the surviving children should take the estate ? If one child die without issue living or surviving the other two, is like Thomas dying without issue living William, in the ease of Pells v. Brown; the cases cannot be distinguished from one another; and it could not be doubted but the testator meant a failure of issue at the death of the child for the single reason (if there were none other) that the limitation over is to the survivors for their lives. The force of this reason has governed in almost every case where a limitation to survivors alone has ever occurred. Roe v. Jeffery (7 T. Rep. 589) was a devise to T. in fee, and if he “ die and leave no issue," then to E. S. & M. and the survivor or survivors of them; and it was holden to ‘be an executory devise for the above reason; life estates were given to persons in existence which were personal benefits, and the intent could not be to postpone them till an indefinite failure of issue, which might not happen in a century or till long after the persons intended to be benefitted would be dead in the course of nature. The force of this reason has swayed the ablest jurists in the United States; I will not repeat the cases in 1 Johns. 440, 10 Johns. 16, 2 Mass. 63, & 5 Mass. 503, where limitations to surviv*51ors were holden to be executory de visos for the above reason. See also 1 T. Rep. 507, 1 P. Wms. 199, 563, and 2 Atk. 311, where Lord Hardwick, denominates it a strong argument.

It is objected that an executory devise is permitted in cases only of necessity, where the provision 'of the will would bo void as a remainder. It is true that in Wealthy v. Bossville (Temp. Hard. 258,) Lord Hardwick says no limitation shall be construed an executory devise if it mop be a remainder; and in Carwardine v. Carwardine (2 Fearn. 12,) Henley, Lord Keeper said, “ It was a certain rule of law, that if such a construction could be put on a limitation as it might take effect by way of remainder, that it should not take place as an executory devise.” But what they mean by could, is, if it could consistenly with the intent of the testator ; it being a certain rule that no construction shall be taken that contradicts the testator’s intention; his intent is his will and must be always observed. The great rule is that such construction shall be taken as is consistent with the testator’s intention; in subordination to this rule the next one is, that if neither construction contradicts the intent it shall be a remainder and not an executory devise. But to say it shall be a remainder in contravention of the intent and to the overthrow of the will, would be a kind of heresy that cannot be imputed to such eminent and orthodox judges.

On the whole, the estate was taken by Gilbert in fee; subject to be defeated on the happening of two contingent events; first that he should die without issue at his death ; second that liis sisters should survive him.; when his two sisters died it became impossible that the estate should be defeated by going over to survivors when there were none; from, that time it became an absolute fee simple in Gilbert, and the title held by the defendant as a purchaser under him must bo good. Lot there be judgment for the defendant.