¶1The question in this case arose on the following clause of the will of Samuel Couch, the testator, viz. “ And my will further is, that if either of my said sons without issue, then in such case, the share and part given to such deceased son shall go and vest in his surviving brethren, or those that legally represent them.” The court below understood the will in the same sense as if the word die had been inserted next before the words "without issue,” supposing it to have been the manifest intent of the testator, that in the event, of one of the sons dying without issue all his brethren surviving, or their representatives, should take his share, and gave judgment for the plaintiff, one of the surviving brethren of Benjamin. If the words “die without issue” had been expressed in the will, there is no question but the surviving brethren of Benjamin, or their representatives, must have taken the estate, notwithstanding any conveyance that might have been made by him. They would have taken the estate as by an executory devise, wherein a fee may be limited after a fee. That such was the intent of the testator, I think, may be inferred from the whole will taken together. He was making provision for all his children, and meant not that any of his estate should be undevised. It was, indeed, ingeniously argued by the counsel in favour of a new trial, that probably it was the intent of the testator, that the estate should go over to the surviving brethren in the event of the devisee of it dying without issue in the life-time of the testator. But it is a conclusive answer to this construction, that if it were to prevail, this part given to Benjamin might, on his so dying leaving issue, have been undisposed of, and have been subject to a distribution among all the heirs. This certainly could not have been the intent of the testator.
¶2On the whole, I am clearly of opinion, that it was the *40manifest intent of the testator, that if any one of the sons should die without issue, after having taken the estate, that is, after the death, of the testator, in such case his surviving brethren should be entitled to his share. I therefore think, that the construction put on this will by the superior court was right, and would not advise a new trial.
¶3New trial not to be granted.