"I give the whole of my property, after complying with what I have mentioned, to the male heirs of my nephew J. T. M., lawfully begotten, for ever, agreeably to the law of England, which was the law of our state before the revolution, that is, the oldest male heir to take all, on the following terms: that the name of the one that may have right, at the age of twenty-one, with his consent be changed to A. Barnes, by an act of public authority of the state, without any name added, together with his taking an oath, before he has possession, before a magistrate of St. Mary's county, and have it recorded in the office of the clerk of the county, that he will not make any change during his life in this my will, relative to my real property; and on his refusing to comply with the abovementioned terms, to the next male heir on the abovementioned terms, and so on, to all the male heirs of my nephew J. T. M. as may be, on the same terms; and all of them refusing to comply in a reasonable time after they have arrived at the age of twenty-one, say not exceeding twelve months; if in that time it can be done, so that no act of intention to defeat my will shall be allowed of; and on their refusing to comply with the terms abovementioned, if any such person may be, then to the son of my late nephew J. T. M. named A. T. M. on the abovementioned terms; and on his refusing to comply with the abovementioned terms, to the heirs male of my nephew A. B. T. M., lawfully begotten, on the abovementioned terms; and on their refusal to the male heirs of my niece Mrs. C., lawfully begotten, on their complying with the abovementioned terms; and on their refusal to the daughter of my nephew J. T. M. named Mary, and so on to any daughter he may have or has." The testator then appoints J. T. M. his sole executor, with a salary of sixteen hundred dollars per annum for his life, and adds, "my will is that he shall keep the whole of my property in his possession during his life." He then empowers his executor to manage the estate at his discretion; to employ agents and pay them such salaries as he shall think proper; to repair the houses and build others as he may think necessary; to reside at his plantation and to use the produce for his support; and adds, "after which, to be the property of the person that may have a right to it as abovementioned." Held, that the condition annexed to the estate devised to the oldest male heir of J. T. M., was subsequent and not precedent and that consequently the contingency on which the devise was to take effect, was not foo remote; the estate vesting, on the death of J. T. M., to be divested on the non-performance of the condition. Taylor et al. v. Mason, 9 Wheat. 325; 5 Cond. Rep. 595.

42. A disposition of real property by deed or will, is subject to the laws of the country where the real estate is situated. Kerr, Appellant, v. The Devisees of Moon, 9 Wheat. 565; 5 Cond. Rep. 682.

43. Where the devisor was entitled to warrants for land in the Virginia military district of Ohio, under the laws and ordinances of Virginia, on account of military services, and died leaving a will executed in Kentucky, which was duly proved and registered according to the laws of that state. By the court :-Although the title to the land was merely equitable, and that not to any specific tract of land, it could not pass, unless by a will proved and registered according to the laws of Ohio. Ibid.

44. Even admitting it to have been personal property, a person claiming under a will proved in one state, cannot intermeddle with, or sue for the effects of a testator in another state, unless the will be proved in that other state, or unless he be permitted to do so by some law of that state. Ibid.

45. Under the statute of Ohio, which permits wills made in other states concerning property in that state, to be proved and recorded in the court of the county where the property lies: it must appear that the requisitions of the statute have been pursued, in order to give the will the same validity and effect as if made within that state. Ibid.

46. To make a pecuniary legacy a charge upon land devised, there must be express words, or a plain implication from the words of the will. Ibid.

47. An introductory clause in a will, showing an intention to dispose of the whole of the testator's estate, will not attach itself to a subsequent devising clause, so as to enlarge the latter to a fee. Ibid.

48. Where words are used by a testator, which are impossible in the place where they occur, or their ordinary meaning is deserted, and no other is furnished by the will, they must be disregarded, and considered as surplusage. Ibid.

49. The word "tenements," in a will, do not carry a fee, independent of other circumstances. In their ordinary sense, they import the latter only. Ibid.

50. It is the general rule of the authorities, that the words "all the rest of my lands," do not, of themselves, import a devise of a fee; but, aided by the context, the devisee, whether he be a sole or a residuary devisee, will, if there be no words of limitation, take an estate for life. Ibid.

but in a greater proportion to F. P. H. than to any other of G. H.'s children; to E. P. Bartlett, in greater proportion than any of A. B.'s children. The balance to be given to the families of C. and I. T. G.'s children in equal proportion." Held, that the children of C. and I. T. G. took per stirpes, and not per capita, and that the property devised to them was not to be divided into two equal parts, one moiety to be assigned to each family. Walker et al. v. Griffin's Heirs, 11 Wheat. 375; 6 Cond. Rep. 353.

53. Where an absolute bequest of certain slaves is so qualified by a subsequent limitation over, so that if either of the testator's grandchildren should die without a lawful heir of their bodies, that the other should be heir of his estate, this converted the previous estate into an estate tail; and there being no words in the will which restrained the dying without issue, to the time of the death of the legatee, the limitation over was held too remote. Williamson v. Daniel, 12 Wheat. 568; 6 Cond. Rep. 651.

54. A devise, "I give to my beloved son E. W. G., two third parts of that my Ferry Farm, so called, &c., to him the said E. W. G., his heirs and assigns for ever, he my said son E. W. G., paying all my just debts out of said estate; and I do hereby order, and it is my will, that my son E. W. G. shall pay all my just debts out of the estate herein given to him as aforesaid," creates a charge upon the estate in the hands of the devisee. Potter v. Gardner et al., 12 Wheat. 498; 6 Cond. Rep. 606.

55. A devise to A, "and if he shall die without an heir before he shall arrive at the age of twenty-one years, that then all that is to him herein bequeathed to be equally divided amongst his brothers and sisters, or their heirs." A takes a fee simple, with an executory devise over to his brothers and sisters. Lippett v. Hopkins et al., . 1 Gallis. C. C. R. 454.

56. The first rule in the construction of a will is to effectuate the declared intention of the testator, if by law it may prevail. To this rule all others bend. But the intention of the testator must be clear and explicit, for the heir at law is not to be disinherited unless by express words or manifest intention. Upon this ground it is, that if a devise of land be without expressing any particular estate, the devisee takes an estate for life only, unless from the context a greater estate was manifestly intended. Ibid.

57. Nor is it sufficient for the testator to express a general intention to dispose of all his property, to turn an estate, otherwise for life, into a more enlarged estate; for though general introductory words, to this effect, may sometimes aid in the construction of doubtful and obscure clauses, yet they are not permitted to supply material defects, or to convert a life estate into a fee. Ibid.

58. Courts of law, however, are solicitous to effectuate the real intention of the testator, when it can be legally inferred from the words of the will. They will, therefore, bring different clauses in aid of each other; enlarge the sense of some words, and restrain that of others; and combine VOL. I.-48

different devises, in order, if possible, to give an uniform construction to the whole will, and supply the defects of counsel in the last extremity of life. Ibid.

59. On this principle it has been resolved, that if a devise be made to one, without specifying any estate, and, in case of an indefinite failure of issue, a devise over, the first devisee shall take an estate tail; for it is manifest that the testator intended a benefit to the issue, and that the estate should not cease but on a general failure; and this intention can be effected only by declaring the estate a fee tail in the ancestor. Ibid.

60. And even where the estate to the first devisee has been expressly limited for life, and a devise over upon a like failure of issue, the same construction has prevailed. And so, where no estate whatever has been directly devised, upon the implication arising over on the failure of his issue, the devisee has been permitted to take an estate tail. Ibid.

61. There are cases of an estate tail arising by implication; nor has a less liberal construc tion been adopted as to a fee simple. Ibid.

62. It is a settled principle that where an estate is devised to one generally, with a remainder over upon a limited contingency, as upon his dying under twenty-one years, the first devisee shall take a fee simple; for if the intent were to give only a life estate, with remainder over, there would be no reason for limiting it to the death under age. On the other hand, instances occur in which the ordinary import of words is restrained, in order to carry into effect the apparent intention of the testator. Where, therefore, he devises to one and his heirs, and upon an indefinite failure of his issue, remainder over, the word heirs is restrained to heirs of his body, in order to give effect to the remainder over, which otherwise would be too remote and void. Ibid.

63. So, if the devise be to one and his heirs, and upon an indefinite failure of heirs, then over to a person who might be an heir to the first devisee, his estate is restrained to a fee tail; for he could never be without heirs while the second devisee or his heirs existed: and therefore it is plain that the testator used the word "heirs" as equivalent to "heirs of the body." But if, in a like case, the devise over were to a stranger, the ge neral meaning of the word "heirs" would prevail; and the estate over, being too remote, would be void as an executory devise. lbid.

64. So also, if the devise be to one and his heirs, and upon a limited contingency, to take effect in his life, as upon his dying under age, then over, the first estate is a fee simple, whether the ultimate devisee be an heir or a stranger: for the second devise would be upon a limited contingency, and good as an executory devise, and therefore it is not necessary to restrain the previous estate, in order to effectuate the intention of the testator. The reason, therefore, of the restraining rule ceasing, the effect ceases also. This was first held in Mills v. Brown, which, as Lord Kenyon has emphatically ob

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 the estate, on the death of J., vested in his surviving brother, M. Jackson, ex dem. St. John, v. Chew, 12 Wheat. 156; 6 Cond. Rep.

489.

the devise over be to a stranger or to a collateral heir. Ibid.

81. A devise, even after a fee, in case the original devisee should die before he came of age, or without issue, is a good executory devise; and the word or is construed and; so that the second devise would be defeated, either by the first devisee attaining his age, or having issue and the reason is, that otherwise, if the first devisee should die under age, although he had issue living, the estate to him would be defeated, contrary to the manifest intention of the testator. Ibid.

82. It may also be admitted, as is asserted by the late learned Mr. Fearne, that though an executory devise in tail, or in fee, to one in esse, after a dying without issue, is void; yet that an executory devise for life to one in esse, to take place after a dying without issue, may be good; because, in the latter case, the future limitation being only for the life of one in esse, it must necessarily take place during that life, or not at all; and therefore the failure of issue in that case is confined to the compass of a life in being. But it by no means follows from this admission, that every such limitation over for life is to be construed an executory devise; for an estate for life may well be limited to take effect after an indefinite failure of issue, in which case it is a mere vested remainder for life after an estate tail. What, therefore, shall be the effect of a limitation over for life to one in esse after a previous estate devised, which may be either an estate in fee, or in tail, depends upon the context, and the intention of the testator, to be collected from the whole will. It may be either a regular remainder, or an executory devise, as the intention of the testator may be best answered. Ibid.

85. A devise to the testator's wife until his son P. should attain the age of twenty-one years, and after P. should attain that age, that he should enter into possession of a moiety; and I do hereby devise and dispose of the whole of the reversion of all the aforesaid lands and real estate unto my said son P., to be and remain to him, his heirs and assigns for ever; but if my said son P. should die before he attain the age of twenty-one, or without lawful issue, then the aforesaid devised premises, &c. to descend to my male heir in fee simple." Held, that P. took an indefeasible estate in fee simple on his at taining twenty-one years of age. Arnold et al. v Buffum, 3 Mason's C. C. R. 208.

86. A devise of "a mill with the appurten ances," conveys not the buildings merely, bu the land under, and appertaining to, and used with the mill. Whitney v. Olney et al., 3 Mason's C. C. R. 280.

87. A. devised an estate to his son "J. S. and to his male heir," in the singular number, "and to his heirs and assigns for ever," but if J. S should depart this life, leaving no male heir law fully begotten of his body as aforesaid, then to testator's grandson, W. O. in fee. Held, that J. S. took an estate in fee tail male, with remainder over to W. O. on the indefinite failure of issue of J. S. Osborne v. Shrieve et al., 3 Mason's C. C. R. 391.

88. A. devised to "all his surviving children in equal divisions," all his real estate, and subsequently, by a codicil, revoked the devise as to his daughter E. without making any disposition of her share. Held, that the devise being to the children as tenants in common, the revocation as to E. did not pass her share to the other surviving children; but as to that portion the testator died intestate. Brownell et ux. v. D'Wolf, 3 Mason's C. C. R. 486.

89. A codicil, confirming a will, is in law a republication of the will, so that the will passes real estate purchased after the will was made. Ibid.

90. A legacy bequeathed to a granddaughter, by the codicil, in lieu of a devise in the will to the mother, who had since deceased, is a revocation of the original devise to the mother. Ibid.

91. A devisee cannot maintain a bill of revivor, but he may maintain an original bill in the nature of a bill of revivor, and thus obtain the benefit of the original proceedings as well before as after there has been a decree in the original suit. Slack v. Walcott, 3 Mason's C. C.