St. John v. Chew. quently, the plaintiff was entitled to recover. The decisions of the state courts would receive no more respect in the present case, than in any other question of common law which might come before this court; and to show that the state decisions had proceeded upon mistaken grounds, the arguments and authorities urged by Mr. Chancellor KENT, in Anderson v. Jackson, 16 Johns. 397, 424, were relied upon, and enforced with a great variety of illustrations. *On the part of the defendant, it was admitted, that a devise, to *158] take effect after a preceding estate in fee-simple, upon an indefinite failure of issue, or (which is the same thing) where there are no expressions. restricting that failure to a life in being, and the usual allowance for minority and gestation, cannot operate as an executory devise, because it would tend to a perpetual restriction of alienation, and is, therefore, void. But where the failure of issue is definite, and by plain words, or necessary implication, declared to take effect, if at all, within a life in being, a limitation by executory devise is valid, and would be sustained both in England and New York. But the peculiar state of the law of real property in England, would account for the application of a different rule to the construction of these limitations, when applied to real property, from what would prevail in the case of personal property (Forth v. Chapman, 1 P. Wms. 663); whilst the institutions of this country might justify and require the application of the same rule to both. 1 N. C. Law Rep. 544; 1 Hen. & Munf. 301; 20 Johns. 483. It was not, however, deemed necessary to resort to this distinction, since it was insisted, that the construction put upon this devise was sustained by the general current of decisions in Westminster Hall, ever since Pells v. Brown, Cro. Jac. 590, which had been called by Lord KENYON " the magna chanta of this branch of the law," and had never been departed from. Porter v. Bradley, 3 T. R. 143. (Lippitt v. Hopkins, 1 Gallis. 460.) In that case, the devise over was in the event of the first taker dying without issue, living his brother William ; in this case, the devise over is to the survivor of the two brothers. In grammatical and legal construction, it is impossible to distinguish between a brother surviving, and a brother living at the death of the first taker. All the modern cases confirm the authority of Pells v. Brown, and it was also sustained by the general principles and analogies of the law. 1 P. Wms. 534, 565; Porter v. Bradley, 3 T. R. 143; Roe v. Jeffery, 7 Ibid. 589; Beachcroft v. Broome, 4 Ibid. 440. As to the anomalous case of Chadock v. Cowley, Cro. Jac. 695, it was directly contrary to the authority of Pells v. Brown, and the long series of decisions following it, and therefore, could not be law, even supposing it to be correctly reported, which might well be doubted. The case states, that if the devise had been, "that if he died without issue, in the life of the other, or before such an age, that then it should remain to the other, then, peradventure, it should be a contingent devise in tail, if it should happen, and not otherwise." No lawyer would pretend, at this day, that a devise to one and his heirs, and in case he die without issue, in the life of another, or if he died before the age of 21, then over, is an estate-tail, either vested or contingent. It is, like the present case, an estate in fee-simple, defeasible on the event happening, with a valid executory devise over, The other cases St. John v. Chew. cited by Mr. Chancellor KENT (Anderson v. Jackson, 16 Johns. 397–424), would all be found to range themselves under one of the following classes: 1. Where there are no words to control the indefinite failure of issue. Tenny v. Agar, 12 East 213; Romiky v. James, 6 Taunt. 263; Brice v. Smith, Willes 1; Doe v. Fonnereau, 2 Doug. 487; Denn v. Slater, 5 T. R. 335; Doe v. Ellis, 9 East 382; Hunters v. Haynes, 1 Wash. 71; Ide v. Ide, 5 Mass. 500; Royall v. Eppes, 2 Munf. 479. 2. Where the first estate is only for life, and enlarged by implication to an estate-tail, by the limitation over, or failure of issue. Webb v. Hearing, Cro. Jac. 415; King v. Rumball, Ibid. 448; Sutton v. Wood, Cam. & Norw. 202. 3. Where the first taker left issue, and the executory devise, in consequence, could not take effect. Roe v. Scott, 2 Fearne 259; Hope v. Taylor, 1 Burr. 268; Doe v. Rivers, 7 T. R. 276; Denn v. Slater, 5 Ibid. 335. 4. Several cases cited against the construction insisted on by the defendant in the present case, which are manifestly in favor of that construction. Kirkpatrick v. Kirkpatrick, 13 Ves. 476; Richardson v. Noyes, 2 Mass. 56; Porter v. Bradley, 3 T. R. 143; Roe v. Jeffery, 7 Ibid. 585; Hauer v. Shitz, 3 Yeates 205; Ray v. Enslin, 2 Mass. 554; Keating v. Reynolds, 1 Bay 80; Jones v. Rice, 3 Desauss. 165. *In Massey v. Hudson, 2 Meriv. 130, the master of the rolls considers the words, executors, administrators and assigns, [*160 as showing the intent of the testator to vest the interest, and make it transmissible. But in the present case, there are no words of limitation annexed; and if it be said, they are implied, the same might be said of every legatee, who, if no words of restriction are added, takes an absolute interest, transmissible to his executors, &c. But here, the interest was neither vested nor transmissible. Barlow v. Salter, 17 Ves. 479, cannot be reconciled with the general course of English adjudications in cases of personal property, and is entirely inconsistent with the American authorities. Fearne 431 n.; 1 S. & R. 144-59; 3 Ibid. 470. As to the notion of the word survivor being used to indicate the surviving branch or stock; in the recent case of Waller v. Andrews, 2 Bing. 126, it is expressly laid down, that "survivor or survivors," mean not the surviving stocks, but the surviving children. And Mr. Fearne (Ex. Dev., 6 Lond. ed., 545) observes, that though the authorities have established on solid ground, the power of testamentary dispositions of contingent and executory estates, and possibilities coupled with an interest, and such as would be descendible to the heir of the object of them, dying before the contingency or event on which the vesting or acquisition of the estate depended; yet the decisions do not appear to reach those cases, where the contingent interest is not transmissible from any person, until the contingency decides him to be the object of the limitation. Now, it has been decided, that a testamentary disposition of an estate, devised to the survivor of two persons, while both are alive, is not valid, although the person making the disposition becomes the survivor; because, till by the death of the other, he so becomes the survivor, he has no interest whatever in the land. Doe v. Tompkinson, 2 M. & S. 165. So also, Mr. Preston observes, that mere possibilities, to persons not ascertained, as to the survivor of several persons, are not coupled with an *interest, and are not devisable, nor, he apprehends, transferrible to assignees under a commission of [*161 bankrupt. 1 Preston on Estates 76. So again, "titles under possibilities or expectancies are of two descriptions: 1. Possibilities coupled with an inter est. St. John v. Chew. 2. Possibilities without any interest. Those possibilities which are not coupled with an interest are not devisable, but all titles under them may be barred, excluded, or bound by estoppel. Such are the expectancies of an heir apparent or presumptive, or of persons where the gift is to the survivor, and both are living." Preston's Abst. Tit. 204. So, a power given to the survivor of two persons, cannot be well executed by both of them, while alive. Sugd. Powers 162; 3 Bro. C. C. 310. In addition to the argument upon the case, as a question of general law, the counsel referred to the decisions of the state courts of New York, as conclusively establishing the construction contended for on the part of the defendant in error, as a settled rule of property in that state, Fosdick v. Cornell, 1 Johns. 440; Jackson v. Blanshan, 3 Ibid. 292; Moffat v. Strong, 10 Ibid. 12; Jackson v. Staats, 11 Ibid. 337; Anderson v. Jackson, 16 Ibid. 382; Wilkes v. Lion, 2 Cow. 333; and to the decisions of this court, showing that the law thus established by a long series of adjudications in the local tribunals, would be respected here. 5 Cranch 32; 9 Ibid. 93; 6 Wheat. 127; 7 Ibid. 550; 8 Ibid. 535-42; 10 Ibid. 159; 11 Ibid. 367-8. February 8th, 1827. THOMPSON, Justice, delivered the opinion of the court, and after stating the case, proceeded as follows:-Questions growing out of devises of this description, are among the most difficult and intricate doctrines of the law; and from the numerous cases that have arisen, as found reported in the books, it will be seen, that nice and almost impercep tible distinctions have been resorted to, with the avowed object of carrying into effect the intention of the testator. To review the cases that have arisen in the English *courts on these questions, would be an arduous, *162] and to reconcile them, a difficult, if not a fruitless, undertaking. Nor are the decisions of the state courts in our own country in perfect harmony with each other. It is not deemed necessary, however, in the present case, to enter into an examination of these various decisions, either for the purpose of attempting to reconcile them, or to extract from them principles, which might be applicable to the case now before the court, if the question was considered entirely an open question. The inquiry is very much narrowed, by applying the rule which has uniformly governed this court, that where any principle of law, establishing a rule of real property, has been settled in the state courts, the same rule will be applied by this court, that would be applied by the state tribunals. This is a principle so obviously just, and so indispensably necessary, under our system of government, that it cannot be lost sight of. The inquiry, then, is, whether the question arising in this case, has been so settled in the state courts of New York, as to be considered at rest there. Numerous cases have come before those courts upon this question; some on the very clause in the will now under consideration; others on wills containing clauses very analogous, and which, in those courts at least, have been considered identical with the present. I shall proceed to notice some of the leading cases there decided, to see how the law on this question is held to have been settled in that state. In the case of Anderson v. Jackson, 16 Johns. 382, decided in the court for the trial of impeachments and correction of errors, in the year 1819, the decision turnel solely upon the construction of this very clause in the St. John v. Chew. will of Medcef Eden, the elder, affirming the judgment of the supreme court which had been given without argument, the court considering the question raised to have been settled by former cases; and the court of errors, in affirming the judgment of the supreme court, put it principally upon the same ground, and considered the question at rest, by the repeated and uniform decisions of the supreme court for the last twelve or fourteen years. It may be useful to recur to the progress of *these decisions, to see the steady and uninterrupted course of the courts upon the question, and how firmly the principle has become ingrafted in the law of that state, as a rule of landed property. [*163 The first case that arose, was that of Fosdick v. Cornell, 1 Johns. 440, in the year 1806. By the will there in question, the devise over was, "My mind and will is, that if any of my said sons, William, Jacob, Thomas and John, or my daughter Mary, shall happen to die without heirs male of their own bodies, than that the lands shall return to the survivors, to be equally divided between them." And it was held by the court, unanimously, that this clause did not create an estate-tail, but was to take effect as an executory devise. In the case of Anderson v. Jackson, the doctrine of that case was considered applicable to the Eden will, and to govern its construction, And it was not pretended by the dissenting members of the court of errors but that if the case of Fosdick v. Cornell was correctly decided, it would govern the case then before the court. And the whole strength of the argument in the very elaborate opinions given by the dissenting members, was applied to the purpose of endeavoring to show, that the decision in that case, and in those which rested upon it, had proceeded upon incorrect views of the law, as decided both in the English and American courts. Chancellor KENT here took occasion to announce his change of opinion on this question, and to say, that although he did not deliver the opinion of the court, he would not shelter himself under his silence, but partook of the error; but that he had discovered, years ago, that the case of Fosdick v. Cornell was decided on mistaken grounds. If this should be admitted (which I certainly do not mean to admit), it is an error which has been so repeatedly sanctioned by all the courts of that state, for the last twenty years, that it has ripened into a settled rule of law. And a reference to the cases which followed that of Fosdick v. Cornell, will show, that it has become a rule so fastened upon the law of real property in that state, as to make it unwise and unsafe to disturb it. In the case of Jackson v. Blanshan, 3 Johns. 289, decided in the year 1808, the question before the court *arose upon a will, where the testator devised "all his estate, real and personal, to his six children, [*164 to be equally divided between them, share and share alike; but if any of them died, before arriving at full age, or without lawful issue, that then his, her or their part, should devolve upon and be equally divided among the surviving children, and to their heirs and assign, for ever." This was held to be a good devise over, by way of executory devise; and Chief Justice KENT, in delivering the opinion of the court, refers to the case of Fosdick v. Cornell, and observes, that the court there reviewed the leading authorities, and held, that the devise over was a good executory devise, and that the true construction was, a devise over to take effect on failure of male issue, during the life of the first taker. That the ancient case of Hanbury St. John v. Chew. v. Cockrill, 1 Roll. Abr. 835, was quite analogous, in favor of the executory devise. The devise there was to the two sons in fee, with a proviso, that if either died, before they should be married, or before they should attain the age of 21 years, and without issue of their bodies, then his share should go to the survivor. That Lord KENYON, in the two cases of Porter v. Bradly, and Roe v. Jeffery, 3 T. R. 143, 7 Ibid. 589, supported this established construction in a very forcible manner; and that the case before the court could not be distinguished in principle from those in which this rule of law is settled beyond controversy. Again, in the case of the Executors of Moffat v. Strong, 10 Johns. 12, decided in the year 1813, the testator, after giving certain specific parts of his real and personal estate to his sons, adds this provision: "And if any of my sons aforesaid should die, without lawful issue, then let his or their part or parts be divided equally among the survivors." Although this was a case of personal property, the judgment of the court did not rest upon that distinction. Chief Justice KENT, in delivering the opinion of the court, says, "the greatest difficulty that arises in starting the main point. for consideration, is to avoid being overwhelmed and confounded by the multitude of cases. Lord THURLOW said, there were fifty-seven cases on this point, and we know they have greatly increased since." And after *165] reviewing many of the leading cases, the chief *justice observes, if the limitation rested solely on the words, dying without issue, it would fail; but the will proceeds, and gives the part of the son so dying without issue, to the survivors. The term survivors will be found to rescue the limitation from the operation of the general principle, and to bring it within the reach of other cases, which have adjudged that expression to be the cause of a different construction, and for the reason, that it could not have been intended that the survivor was to take only after an indefinite failure of issue, as that event might happen long after the death of all the survivors. Thus stood the question, when the chief justice was transferred to the court of chancery, no diversity of opinion having existed on the bench upon the question, according to the reported cases. The next case that came before the court was that of Jackson v. Staats, 11 Johns. 337, in the year 1814; and the construction of a similar clause in a will was under consideration. SPENCER, J., in delivering the opinion of the court, observes, that "the point, whether the limitation over operates as an executory devise, or to create an estate-tail, admits of very little difficulty. The case of Fosdick v. Cornell is in point, that this is a good executory devise;" and adds, "I believe none of us have ever doubted the correctness of the decision in that case, and it would be a waste of time to review the authorities there cited." So that the law on this point was considered settled, and not open to argument, until it was again stirred, in the case of Anderson v. Jackson, in the court of errors, upon the clause in Eden's will, now under consideration; and the rule of construction settled in the supreme court, was considered applicable to this will, and governed the decision in the court of errors. Again, in the year 1823, the construction of the same clause in Eden's will came before the supreme court, in the case of Lion v. Burtiss, 20 Johns. 483; and SPENCER, Ch. J., in delivering the opinion of the court, referred to the case of Anderson v. Jackson, in the court of errors, and said, it was |