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*411The case was continued for advisement, and the opinion of the Court afterwards drawn up by

WestoN C. 3.

The clause in the will, under which William Butler claimed, taken by itself, devised the estate in controversy to the said William, in fee tail general, by apt and proper words, having that legal effect. There is in that part of the will no condition or contingency, upon the happening of which, the estate was otherwise limited. But in another clause, it is provided, that in case William Butler, the devisee, should die without issue of his body begotten, that then, from and after his death, the same estate should enure to Thomas Butler, another son of the testator, and the male heirs of his body forever. The limitation over must be by way of executory devise, or as a contingent remainder.

It is contended, by the counsel for the tenant, that the effect of this clause, is to reduce the estate tail, which would otherwise have been given to William Butler, to an estate for life, with a conditional limitation to the heirs of his body, if he had any, and that the limitation over to Thomas, if William died without issue, was good and took effect, as an executory devise. As an estate tail was expressly given to William, it may be difficult to support this construction consistently with the current of authorities.

The question, whether in devises of this kind, a definite or indefinite failure of issue is intended, has been frequently brought under discussion in courts of justice. The general doctrine of the books, from an early period of the English law, is, that a limitation over, if the first devisee dies without issue of his body, is to be understood to mean an indefinite failure of issue, that it is accordingly void as an executory devise, and that the first devisee takes an estate tail. And this is to be the construction, unless it clearly and distinctly appears by the will, that the failure of issue, upon which the devise over depends, has reference to the time of the death oi the first devisee. The eases, in which this distinction has been taken, have arisen generally, if not uniformly, where the estate is given to the first taker, without qualification, and in a subsequent clause is given over, if he die without issue, or without leaving issue. And there have been very refined constructions, turning upon slight variations in the language used. But it is apprehended, that it would not be easy to find a case, in which this point has *412been agitated, where an estate tail has been given to the first taker, as here, in express terms. Questions of this kind are of such rare occurrence in our jurisprudence, that it would be more curious than useful, to go into a consideration of the cases, in which they are brought under discussion. We deem it unnecessary however to decide, whether William, Butler took an estate tail, with a contingent remainder to Thomas Butler, or whether he took an estate for life, and if he died without issue, with limitation over to Thomas in tail male, by way of executory devise.

If William Butler took an estate tail, he had, under the statute pf 1821, c. 36, § 4, which is a reenactment of the statute of Massachusetts of 1791, c. 60, the power of defeating the entail, and conveying in fee simple, in the mode there prescribed. We do not accede to the correctness of the position, taken by the counsel fqr the defendant, that this statute did not apply to estates tail, created by wills, made and approved before its passage. The statute prescribed a more simple mode for barring entails, as a substitute for the complicated process of a common recovery. And accordingly its provisions in Massachusetts, were applied to estates tail then existing. Wheelwright v. Wheelwright, 2 Mass. R. 447; Soule v. Soule & als. 5 Mass. R. 61. The conveyance of the estate therefore by William, if he was seized in tail, to the demand-ant in 1828, in the form prescribed, vested it in him in fee simple, unless it is competent for the tenant to impeach that conveyance. We have not found it necessary to decide that point, as if that deed was void, the limitation over took effect, as a remainder, or as an executory devise; and in either case, the demandant has a good title under George, the heir in tail of Thomas Butler.

As Thomas died, before the decease of William without issue, upon which his estate was to vest in possession, his right descended to his heir male, in whom it did vest in possession, upon the death pf William, the first devisee. Estates tail, so far as they are authorized by law, descend in the mode prescribed by the donor, which differs from the general law of inheritance. An estate tail is descendible to some particular heirs only of the person, to whom it is granted, and not to his heirs general. An estate in tail male, descends to the oldest son of the donee in tail. The statute law of inheritance, as it respects intestate estates, differs from the common *413law ; but it does not affect estates tail, which depend upon the will of the donor. The law upon this point, as it existed in Massachusetts, prior to our separation, and which also remains the law of this State, is fully considered in the case of Hawley & al. v. The Inhabitants of Northampton, 8 Mass. R. 3. Parsons C. J. there says, that in an estate tail all the heirs of the body of the tenant in tail cannot take together, but only in succession, the oldest son and his issue, then the second son and his issue, and so on. And in Davis v. Hayden & als. 9 Mass. R. 514, it was directly decided, that such an estate vested in the oldest son as the heir in tail, to the exclusion of the other children.

It is agreed, that Thomas Butler died in the lifetime of the first devisee, and that George is the oldest son of Thomas. Upon the decease then of the first devisee, without issue, George Butler became seized in tail male, under the will. Being so seized, it was competent for him to bar the entail, in virtue of the slat, of 1821, c. 36. And the case finds, that in July, 1836, the said George Butler did, bona fide, for a valuable consideration, in the presence of two witnesses, who must be taken to be credible, by deed duly executed, acknowledged and recorded, convey the demanded premises to one James Leman, his heirs and assigns. By this deed, under the statute before cited, the estate tail, which had vested in George Butler, was barred, and converted into an estate in fee simple. It further appears, that on the same day, Leman conveyed the same estate to the demandant, his heirs and assigns. He thereby acquired a valid title in fee, if the limitation over to Thomas, Butler, in tail male, took effect. In every legal point of view therefore, in which the case may be contemplated, the title of the demandant is sustained.

Judgment for the demandant.

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