¶1 (concurring) : I concur in the opinion of Mr. Justice Stabler reversing the order appealed from for the reasons stated by him, with this addition:
¶2 If the case of Addison v. Addison, 9 Rich. Eq., 58, had been decided after the Act of 1853 and had construed a will effective thereafter, it would have been a very persuasive authority in support of the Circuit decree in the case at bar.
¶3 The will in that case was dated in 1849 and the testator died in 1850, both events antedating the Act of 1853, Section 5323 of the Code, Vol. 3, which is as follows: “Whenever, in any deed or other instrument in writing, not testamentary, hereafter executed, or in any will of a testator hereafter dying, an estate, either in real or personal property, shall be limited to take effect on the death of any person without heirs of the body, or issue, or issue of the body, or other equivalent words, such words shall not be construed to mean an indefinite failure of issue, but a failure at the time of the death of such person."
¶4 The Addison case construed a will quite similar in its provisions with the will under review in the case at bar, and the Court construed it as creating a fee conditional; but the decision of the Court contained the following very pertinent declaration: “It follows, that if in this litigation we must construe the words of the will describing the event on which the estate was to go over as equivalent to dying with *91 out issue living at the death of Joseph, his life estate cannot be enlarged by implication. The consequence would be, in the event which has happened of the primary legatee’s leaving issue, that the property is undisposed of, as it cannot go to himself, his issue, or the ulterior legatees; and that the testator has miscarried in the attempt to dispose of, his whole estate.”
¶5 The Act of 1853 forces the very construction which in the Addison case is held would have prevented the enlargement of the life estate of Robinson O. Monk by implication either into a fee-simple absolute of a fee-simple conditional. See, also, the concurring opinion of Mr. Justice, later Chief Justice, Gary in the case of Harkey v. Neville, 70 S. C., at page 136, 49 S. E., 218; Bomar v. Corn, 150 S. C., 111, 147 S. E., 659.
¶6 Another consideration is that ’the; remainder over to the grandchildren upon the death of the life tenant without issue is contingent of course, but it is an executory devise, and the rule laid down in Bomar v. Corn and also Drummond v. Drummond, 146 S. C., 194, 143 S. E., 818, is that the fee-conditional cannot exist where there is a valid executory devise.
¶7 I am of opinion, therefore, that the decree of the Circuit Court should be reversed, and the complaint dismissed.