Robert Cooper Grier

“ The contingency contemplated is as definite as language can make it-'if either son should happen to die without heirs of their own during the life of the other.' The person to take, on the happening of this contingency, is precisely described-'the other survivor.' It is true, that cases may be found which decide that the term 'survivor' does not of itself necessarily import a definite failure of issue, and no doubt there are many cases where it would be necessary to disregard the obvious import of this term, in order to carry out the general intent of a testator, otherwise apparent ”

“ The question, therefore, in this and similar cases is, whether, from the whole context of the will, we can collect when an estate is given to A and his heirs forever, but if he die without issue, then over, the testator meant without issue living at the death of the first taker. ”

“ If it had been, it is utterly improbable that the court would have come to the result they did; for it is undoubted law everywhere, that a limitation over upon the first taker's dying without issue, and under twenty-one years of age, is clearly upon a definite failure of issue. ”

“ In a devise of real and personal property, the law makes a distinction as to the two estates, in the construction of devisees; and, when technical language is used, the devisee takes an absolute estate in the personal, and a limited estate, or an estate tail, in the real property. ”

“ Moreover, the legacy given for the maintenance of Sarah Devinny, 'to be paid out of that part of my estate given to John and Jacob,' would be defeated by their death before she arrived at the age of eighteen, if the devise to them was a life estate only. The intention of a testator must be drawn from the whole context of his will. ”

“ The words 'lawful heirs of their own,' mean 'heirs of the body lawfully begotten;' and in this will they are technical, and used as words of limitation, restraining the devise to a certain class of heirs, namely, the heirs of the body of either John or Jacob. ”

“ It is generally conceded that the rule violates the natural meaning of language, and in most cases tends to defeat rather than to give effect to the intentions of testators. 2 Jarman on Wills, 418; Keily v. ”