Postmaster-General v. Early. also taken to secure the general official conduct of the deputy.' Now, a part of the condition is expressly, "that if he shall pay all moneys that shall come to his hands, for the postages of whatsoever is by law chargeable with postage," then the obligation is to be void. The obligation itself, on which the suit is brought, was intended to secure the payment of money collected for the United States, as well as the official conduct of the deputy; and as no law prohibited such an official bond, we cannot think, although it might not in itself be valid, that it would destroy an obligation taken for a legitimate purpose. As the breach assigned is altogether in the non-payment of the money collected, we do not think that, if a bond would be good, taken for this single object, it is made bad by being extended also to the official conduct of the obligor. The inquiry then is, whether, under a fair construction of the acts of congress, the postmaster-general may take bonds to secure the payment of money due, or which may become due, to the general post-office. All the acts relative to the post-office, make it the duty of the postmaster-general to superintend the department, to regulate the conduct and duties of his deputies, and to collect the moneys received by them for the general post-office. May not these powers extend to taking bonds to the officer who is to perform them? May not these bonds be considered as means proper to be used in the collection of debts, and in securing them? If this interpretation of the words should be too free for a judicial tribunal, yet if the legislature has made it, if congress has explained its own meaning too unequivocally to be mistaken, their courts may be justified in adopting that meaning. The 22d section of the act of 1799, after directing the postmaster-general to sue for all balances due from his deputies, within six months after the expiration of the three months within which they ought to have been paid, enacts, "that all suits, which shall be hereafter commenced for the recovery of debts or balances due to the general post-office, whether they appear by bond or obligation made in the name of the existing or any preceding postmaster-general, *or otherwise, shall be instituted in the name of the [*151 postmaster-general of the United States." These words follow immediately the clause which makes it the duty of the postmaster-general to sue for the money due from his deputies, and are obviously applied to the moneys in their hands. They show the sense of the legislature, that this money may be a "debt" or a "balance," may "appear by bond or obligation," or otherwise; and are, we think, a legislative exposition of the words, describing the power and duty of the postmaster-general in the superintendence of his department, and the means he may employ for collecting the money due from his deputies. The 31st section of the same act, repeals the previous laws for establishing the post-office department, after the 1st day of the ensuing May; and adds a proviso to the repealing clause, that as to "all bonds, contracts, debts, demands, rights, penalties or punishments, which have been made, have arisen, or have been incurred," &c., "the said acts shall have the same effect, as if this act had not been made." It is said by the counsel for the defendants, that these words do not give efficacy to the bonds to which they refer, 1 United States v. Bradley, 10 Pet. 343; Speck v. Commonwealth, 3 W. & S. 324; Shunk v. Miller, 5 Penn, St. 250. Postmaster-General v. Early. but leave them as they were anterior to the repealing act. This is true. But they explain the sense of the legislature, respecting the powers of the postmaster-general, and the manner in which he might execute those powers. An additional proviso extends even to official bonds. After continuing the postmaster-general and all his deputies in office, it adds, "and also the bonds which they or either of them have or may give for the faithful execution of their several duties, shall continue to have the same force and effect, to all intents and purposes, after the 1st day of May next, as though this act had not been made." This proviso also is no more than a recognition of the validity of those bonds; but it is a recognition of it, and goes the full extent of showing the legislative opinion that they might be taken. The act of 1810 repeals former acts, and contains the same provisions on this subject with the act of 1799. The court has felt the pressure of this part of the case. *There *152] is always difficulty in extending the operation of the words beyond their plain import; but the cardinal rule of construction is, that where any doubt exists, the intent of the legislature, if it can be plainly perceived, ought to be pursued. It is also a rule, that the whole law is to be taken together, and one part expounded by any other, which may indicate the meaning annexed by the legislature itself to ambiguous phrases. The words describing the power and duty of the postmaster-general, may be expounded by other parts of the act showing the legislative opinion as to their extent; and if this be true, the sections which have been cited cannot be misunderstood. They show plainly that the legislature supposed it had given the postmaster-general authority to take these bonds. A case cannot exist, in which effect may be given to the legislative intent more safely than in this. The bonds are taken in a case where no doubt can exist respecting the right and propriety of giving authority to take them; they are for money due to the United States; and the opinion of the legislature that authority was given, is expressed in as plain words as can be used. The acts of congress sustain the opinion, that they have been taken with the knowledge and approbation of the legislature, from the first establishment of the offices; and provision is made by law for their being put in suit. The courts of the United States have, until very lately, uniformly given judgments on them. Under these circumstances, we think ourselves justified in continuing to sustain them, and to certify, in this case, that the circuit court has jurisdiction of the cause. Certificate accordingly. 96 *JACKSON ex dem. ST. JOHN v. CHEW. Executory devise.- Local decisions. E. being seised of lands in the state of New York, devised the same, by his last will and testament, to his son Joseph, in fee, and other lands to his son Medcef, in fee, and added, "It is my will, and I do order and appoint, that if either of my said sons should depart this life, without lawful issue, his share or part shall go to the survivor; and in case, of both their deaths, without lawful issue, then I give all the property to my brother John E., and my sister Hannah J., and their heirs ;" Joseph, one of the sons, died without lawful issue, in 1812, leaving his brother Medcef surviving, who afterwards died without issue: Held, that Joseph took an estate in fee, defeasible in the event of his dying without issue, in the lifetime of his brother; that the limitation over was good as an executory devise; and on the death of Joseph, vested in his surviving brother Medcef.1 This court adopts the local law of real property as ascertained by the decisions of the state courts, whether those decisions are grounded on the construction of the statutes of the state, or form a part of its unwritten law.2 The court, therefore, considered it unnecessary to examine the question arising upon the above devise, as a question of general law; or to review, and to attempt to reconcile, the cases in the English courts upon similar clauses in wills, the construction of this clause having been long settled by a uniform series of adjudications in New York, and having become a fixed rule of property in that state. Anderson v. Jackson, 16 Johns. 382, and Wilkes v. Lion, 3 Cow. 333, followed. ERROR to the Circuit Court for the Southern District of New York. The question presented by the special verdict in this case, arose upon the will of Medcef Eden, the elder, bearing date the 29th day of August 1798, by which will, the testator devised to his son Joseph, certain portions of his real and personal property, among which were the premises in question in this cause, "to have and to hold the same to him, his heirs, executors and administrators for ever." In like manner, he devised to his son Medcef, his heirs and assigns, certain other portions of his property; and, after making some other provisions, added the following clause: "Item. It is *my [*154 will, and I do order and appoint, that if either of my said sons should depart this life, without lawful issue, his share or part shall go to the survivor; and in case of both their deaths, without lawful issue, then I give all the property aforesaid to my brother, John Eden, of Loftus, in Cleveland, in Yorkshire, and my sister, Hannah Johnson, of Whitby, in Yorkshire, and their heirs." And the question was, what estate Joseph Eden (under whom the lessor of the plaintiff claimed) took in the premises in question. soon after making his will, leaving his two sons, Joseph Joseph died in August 1812, without issue, leaving his The lessor of the plaintiff claimed title derived from The testator died and Medeef, living. brother Medcef alive. 1 An executory devise over on the death of the devisee in fee, without heirs, when it is evident that by the word "heirs " is meant the children of the first taker, is good; the contingency is not too remote. Berg v. Anderson, 72 Penn. St. 87. The word "issue," is prima facie one of limitation, but the construction will yield to an intention apparent on the face of the will. Kleppner v. Laverty, 70 Id. 70. The words" dying without leaving issue," may be shown by the context to mean a dying without issue, living at the death of the first taker. Ingersoll's Appeal, 86 Id. 240. Bell v. Morrison, 1 Pet. 352; Henderson v. Griffin, 5 Id. 151; Green v. Neal, 6 Id. 291; Brashear v. West, 7 Id. 609; Beauregard v. New Orleans, 18 How. 497; Suydam v. Williamson, 24 Id. 427; Chicago v. Robbins, 2 Black 419; Sumner v. Hicks, Id. 532; Williamson v. Suydam, 6 Wall. 723; Williams ". Kirtland, 13 Id. 306; Walker v. State Harbor Commissioners, 17 Id. 648; Barrett v. Holmes, 102 U. S. 655. St. John v. Chew. Joseph Eden, under the sale of the premises in question, by virtue of a judgment and execution against him, and sundry conveyances thereafter made of such title as set out in the special verdict. The defendant claimed under a title, derived from Medcef Eden, under the above-mentioned clause in his father's will, he having survived his brother. If Joseph Eden took an estate-tail, it was, by operation of the statute of the state of New York. abolishing entails, converted into a fee-simple absolute, and the subsequent limitation became inoperative. That statute (passed the 23d of February 1786) declares, "that in all cases where any person would, if this act had not been passed, at any time hereafter, become seised in fee-tail of any lands, by virtue of any devise before made, or hereafter to be made, such person, instead of becoming seised thereof in fee-tail, shall be deemed and adjudged to become seised thereof in fee-simple absolute." So that if Joseph would have taken an estate-tail under the will, if the act of 1786 had not been passed, by operation of the statute, he became seised of an estate in fee-simple absolute, which was liable to be sold on the judgment against him, and the title under which the lessor claimed would be complete. But if Joseph took an estate in fee, defeasible in the event of his dying without issue, in the lifetime of his brother (which event happened), then Joseph's interest in the land became extinct on his death, and the limitation over to his brother Medcef was good, as an executory devise, and the defendant would consequently be entitled to judgment. *155] A judgment was entered upon the special verdict in the court below, for the defendant, pro formá, by consent of parties, for the purpose of bringing the cause before this court. January 25th. The cause was argued by the Attorney-General and D. B. Ogden, for the plaintiff; and by Webster and Wheaton, for the defendant. On the part of the plaintiff, it was insisted, that Joseph Eden took an estate-tail under the devise to him, which, by the operation of the statute of 1786, was converted into a fee-simple absolute. The general rule that the words "dying without issue" import an indefinite failure of issue, was relied on to support this construction of the will. (a) And, although it was admitted, that there were circumstances which would limit those words to a definite failure of issue, yet it was denied, that there were any qualifying expressions in this devise, which would have that effect. There were certainly none such, unless the words, "his share or part shall go to the survivor," could be considered as having that effect. The earliest case, which would probably be relied upon to show that these expressions limited the failure of issue to issue living at the death of Joseph Eden, was that of Pells v. Brown, Cro. Jac. 590, where the testator devised to "Thomas, bis son, and his heirs, for ever, paying to his brother Richard 20 pounds, at the age of 21 years; and if Thomas died without issue, living William, his brother, that then William, his brother, should have those lands to him, his heirs and assigns, for ever, paying the said sum as Thomas should have paid." Thomas having died without issue, and William having survived him, it was (a) The counsel here referred to all the cases cited, and cominented on, by Mr. Chancellor KENT, in Anderson v. Jackson, 16 Johns. 405-24. St. John v. Chew. determined, that this was a contingent fee to William, by way of executory devise. Now, to test the authority of this case as to the effect of the word *survivor, it was only necessary to refer to King v. Rumball, Cro. Jac. 448 (s. P. Webb v. Hearing, Ibid. 415), decided three years before, [*156 in which a devise to three daughters, and if they all died without issue, then over, was held to create an estate-tail; and to the case of Chadock v. Cowley, Ibid. 695, determined four years subsequently to Pells v. Brown, where the same court held, that the word survivor had no such effect as is here attributed to it. In that case, the testator devised all his lands in Bradmere, to Thomas, his son, and his heirs, for ever, and his lands in Eastleak, to Francis, his son, and his heirs, for ever, and then added: "Item. I will that the survivor of them shall be heir to the other, if either of them die without issue." This was held to be an estate-tail in Thomas. As to the more modern cases of Porter v. Bradley, 3 T. R. 143, and Roe v. Jeffery, 7 Ibid. 589 which would be relied upon to show that the term survivor had this effect the remarks of Mr. Justice STORY, in Lillibridge v. Adie, 1 Mason 236, might be applied to these cases, and would, at the same time, illustrate the general question. "In respect to terms of years, and other personal estates, courts have very much inclined to lay hold of any words to tie up the generality of the expression, dying without issue, and to confine it to dying without issue living at the time of the person's decease. But in respect to freeholds, the rule has been rigidly enforced, and rarely broken in upon, unless there were strong circumstances to repel it. Fearne's Ex. Dev. 357-61 (Butler's ed. 471-6); Crooke v. De Vandes, 9 Ves. 197; Dansey v. Griffiths, 4 Maule & Selw. 61. The cases of Porter v. Bradley, and Roe v. Jeffery, have gone a great way, but they turn on distinctions, which, though nice, clearly recognise the general rule." In a recent English case, the word survivors was relied upon to raise an inference of restrictive intention; but Sir W. GRANT held, that the word had the same sense as the word others, as (says he) has been frequently decided." Barlow v. Salter, 17 Ves. 479. So, in Massey v. Hudson, 2 Meriv. 135, in a case of personal [*157 property, the presumption that a bequest over to the survivor of two persons, after the death of one without issue, was meant as a personal benefit to the survivor, was held to be repelled by the addition of the words, exccutors, administrators or assigns. Roe v. Scott and Smart, Fearne's Ex. Dev. (4th ed.) 203, presented precisely the same case with that before the court; and yet it was there held, that the indefiniteness was not restricted, by force of the word survivor. In the present case, it could not be considered as having that effect, because the testator, in using the term survivor, did not inteħd the individual brother surviving, but the surviving branch; consequently, if Medcef had died, having issue, in the lifetime of Joseph, and Joseph had afterwards died without issue, the issue of Medcef would have taken Joseph's share; and so also, in case of any more remote failure. As to the local decisions in the state courts of New York, giving a construction to this and other similar clauses in wills, it was said, that the present question did not turn upon the interpretation which the local tribunals had given to the statute of 1786, or upon any other law peculiar to the state; but that the sole question was, whether Joseph Eden took an estatetail, which was a question of general law; and if he did, it was incontestible, that the statute converted his estate into a fee-simple, and, conse |