Stedfast v. Nicoll. STEDFAST, er dem. W. NICOLL and others, against H. NICOLL. N. in August, 1778, devised land to his son William, for life, remainder to W. the son of William, living at the time of the devise, for life, with remainder to the first and every other son of the first son of William successively, in tail male, with remainder to the second son of William, (then in esse,) with remainder to his first and every other son, successively in tail male; with remainder to every other unborn son of William successively, in tail male; remainder to the first and every other unborn daughter of William successively, in tail male; remainder to the testator's second son Samuel for life; remainder to the first and every other son of Samuel, successively, in tail male; with remainder to the testator's three daughters, in tail general, as tenants in common; with remainder to the same three daughters, in fee; and devised to trustees to preserve contingent remainders. The testator died 1st March, 1780, leaving issue two sons, William and Samuel, and three daughters. William, the eldest son, entered under the will, and died seised, in April, 1796, leaving two sons, William and Henry; and William, the grandson of the testator, entered on the death of his father, under the will, and died seised in June, 1799, leaving issue a daughter, and his wife privement enseint, who was delivered of a son, also named William, in October, 1799. It was held, that the posthumous son took the estate in remainder, by the devise, in the same mauner as if he had been born in the life-time of his father. THIS was an action of ejectment. The cause was tried at the Suffolk circuit, in June, 1800, before Mr. "Justice Benson, when the jury found a special ver- [*19] dict, in which the following facts were contained. William Nicoll, being seised in fee of the premises in question, made his will, on the 19th August, 1778, in which, among other things, he devised the premises in question to his son William for life, without impeachment of waste; with remainder to trustees, and their heirs, during the life of his son William, to preserve the contingent remainders in his will, limited; with remainder to the first son of his said son William, for life; with remainder to the said trustees and their heirs during the life of his said grandson, to preserve the contingent remainders therein after limited, to wit, with Stedfast v. Nicoll. remainder to the first and every other son and sons of the eldest son of his said son William, successively according to the seniority, the elder to be preferred before the younger, to hold the same in tail male; and in case of the death of the first son of his said son William, without such issue, then the testator gave the said lands, &c. to the second son, (the defendant,) and the issue male of such second son, in the same manner as above, with like devises to trustees for preserving the contingent remainders; and declaring his intention to be to give an estate for life only to such second son, in tail to his issue male successively, and so to every other son of his said son William, and the issue of such son successively upon the like contingencies; and in default of issue male of his said son William, he devised the said remainder to the first or eldest daughter of his said son William, for life without impeachment of waste; with remainder, during the life of such first daughter, to the same trustees and their heirs, in trust, to preserve the contingent remainders therein after mentioned; with remainder to the first and every other son and sons of his said first or eldest daughter successively, according to their seniority, the eld est always to be preferred to the younger, to hold the [*20] same in tail male; and in case of *the death of the first daughter of his said son William, without such issue, then he devised the same lands, &c., to the second daughter, of his son William, and the issue male of such second daughter, in the same manner, with like devise to trustees to preserve contingent remainders, expressing his intention to give an estate for life to such second daughter, to her issue in tail male, successively; and so to every other daughter of his said son William and their male issue upon the like contingencies. In default of issue, male and female, of his son William, and their male issue, the lands were devised to the testator's son Samuel Benjamin, for life, without impeachment of waste; with remainder to trustees to preserve contingent remainders; with remaindar to his son Samuel and his issue male, in the same manner as before devised to his son William; and in Stedfast v. Nicoll. default of issue male of his son Samuel Benjamin, he devised the same to his three daughters, and their issue male, equally to be divided between them, share and share alike; and in default of their male issue, to their issue female, equally to be divided between them. And the testator added, "that his meaning might be the better understood, and to give a key for the more certain exposition of his will, he declared it to be his general intent, to continue the estate at Islip, (the premises in question,) first in the male descendants of his son William, then in the male issue of the daughters of his said son William, then in the male issue of his son Samuel, then in the male issue of the testator's three daughters in severalty, and upon the failure of such male issue, then to the issue female in severalty, and that it should not be in the power of his descendants, before his great grandchildren, to dock the entail." The other provisions and devises in the will, as well as a codicil made the 22d February, 1780, relating to different subjects, it is unnecessary to state them here. The testator died the 1st March, 1780, leaving isissue William, his eldest son Samuel Benjamin, his [*21] younger son, and three daughters, named in the will. On the death of his father, William, the eldest son, entered and was seised under the will, and died so seised, on the 20th April, 1796, leaving issue William his eldest son, and Lenry S. his second and younger son, both of whom and the three daughters of the testator, were living at the time of his death. William, the grandson of the testator, after the death of his father, entered and was seised under the will, and died so seised, the 5th June, 1799, leaving issue a daugher, (Deborah,) and his wife, privement enseint, and who on the 26th October, 1799, was delivered of a male child, called William, who is now living, and is one of the lessors, being the lawful issue and only son of the last mentioned William, and great grandson of the testator. The other lessors, Selah Strong, and Richard Udall, were appointed, on the 9th November, 1799, by the court of chancery, guardians of his per Stedfast v. Nicoll. son and estate. The premises in question are part of the testator's land at Islip. The cause was argued, at the last term, by RADCLIFF, J. It is unnecessary to go into a particular examination of the law relative to the operation of devises, like the present to William the son, and William the grandson, of the testator. The devises to them were, in express terms, devises of estate for life only, and from the general plan of the will, evidently appear to have been so intended. The rule is settled, (1 Co. 86. Archer's Cuse, 1 Ld. Raym. 203; 1 Eq. Cas. Abr. 184; Backhouse v. Wells,) and it was conceded on the argument, that an express estate for life, thus created, cannot be enlarged by implication, nor by any sub sequent general words, unless it be necessary to effec[22] tuate the "intent of the will. This construction, in the present instance, so far from opposing that intent, is necessary to carry it into execution. (2 Burr. 1106. 1 P. Wms. 54. 601. 605. Salk. 236. 2 Vern. S. C. 2 Ld. Raym. 1561. 2 Vern. 737. 3 Salk. 326. 1 P. Wms. 59. in note. Ih. 755. 759, 760. 6 Bro. Parl. Cas. 222. Jones, 114. 1 Vez. 146. Cro. Car. 363. 4th ed. Fearne, 97, 100, 101. 105. 109. 140, 141.) It follows, that William, the grandson was seised of an estate for life only, with remainder to his eldest son in tail male, and for want of such issue, remainder to his brother, Henry S. Nicoll, the present defendant. William, the grandson, had no male issue, at the time of his death, but left his wife enseint, of whom a posthumous son was born, named William Nicoll, one of the lessors of the plaintiff. Here it is objected, that the remainder being contingent, and William, the grandson, having no male issue, in esse, at the time of his death, it could not vest, eo instanti; that the particular estate determined, and failing as to his issue, the remainder over to Henry, the defendant, immediately took effect. This depends on the question whether posthumous children, by our law, are capable of taking in remainder, as if they had been during the life-time of their parents. Stedfast v. Nicoll. By the strict principles of the feudal law, which always required an existing tenant to the præcipe, it was formerly held that they could not. But although the law was thus deemed to be finally settled, the decision of the K. B. to that effect, in the case of Reeve v. Long, (1 Salk. 228,) was reversed by the house of lords, against the opinion of all the judges. That case arose on a will, and the lords distinguished between a devise, and a limitation of such remainder by deed. They resolved, that the technical rule should yield to the plain intent of the will, and, for that purpose, construed the limitation in the nature of an executory devise, and allowed the freehold to vest in the person next in remainder, till the son, *who was intended to take, be [*23] boru. Soon after this decision, the statute of 10 Wm. III. was passed, which provided, that where an estate, by any marriage, or other settlement, was limited in remainder, &c. posthumous children should be enabled to take, as if born during the life of their father. This statute did not expressly extend to such limitations by will; and it is said, that the house of lords in passing it, were unwilling to make any express mention of limitations by will, lest it should appear to call in question the propriety of their determination. (Co. Litt. 298, note by Butler.) If the statute does not apply to wills, the decision of the house of lords must be received as baving settled the rule in England, for either by virtue of that decision, or of the statute, it appears, thereafter, to have been uniformly adopted; and in a late case of Roe v. Quaily, (1 Term Rep. 634,) to have been received as free from doubt. The authorities on this subject, however, generally refer to the statute, as prescribing the rule in all cases, independent of the determination of the house of lords; and its terms, I think, are susceptible of that construction. Wm. was also adopted in this state, while a colony, in the year 1774, but was repealed, by name, in 1788; and in the same session all the statutes of England were declared to be no longer in force. The statute of Wm. is, therefore, not a part of our present code, and no legislative provision has since been made, in favor of posthumous children, except VOL. III. 5 The statute of |