fee, 14 N. H. 215, 224; Seddel v. Wills, 20 N. J. Law (Spencer) 223, 225; Van Middlesworth v. Schenck, 8 N. J. Law (3 Halst.) 29, 41; Wurts' Ex'rs v. Page, 19 N. J. Eq. (4 C. E. Green) 365, 367; Buchanan v. Schulderman, 1 Pac. 899, 900, 11 Or. 150; Dumond v. Stringham (N. Y.) 26 Barb. 104, 111; Moffat's Ex'rs v. Strong (N. Y.) 10 Johns. 12, 17; Anderson v. Jackson (N. Y.) 16 Johns. 382, 402, 8 Am. Dec. 330; Appeal of Fitzwater, 94 Pa. 141, 146; Strain v. Sweeny, 45 N. E. 201, 202, 163 Ill. 603; Stone v. Bradlee (Mass.) 66 N. E. 708, 709, 183 Mass. 165. The words "die without issue" have been held to import an indefinite failure of issue, when applied to personalty as well as to realty. Chism's Adm'r v. Williams, 29 Mo. 288, 292; Davies' Adm'r v. Steel's Adm'r, 38 N. J. Eq. (11 Stew.) 168, 170; Moody v. Walker, 3 Ark. (3 Pike) 147, 198. But ordinarily they are construed to mean definite failure of issue, when so used. Forth v. Chapman, 1 P. Wms. 663; Caulk's Lessee v. Caulk (Del.) 52 Atl. 340, 345, 3 Pennewill, 528; Kimball v. Penhallow, 60 N. H. 448, 451; Downing v. Wherrin, 19 N. H. 9, 86, 49 Am. Dec. 139; Hall v. Chaffee, 14 N. H. 215, 224; Pinkham v. Blair, 57 N. H. 226, 227; Patterson v. Madden, 33 Atl. 51; Appeal of Eachus, 91 Pa. 105, 108; Appeal of Myers, 49 Pa. 111, 114; In re Francis' Estate, 4 Pa. Dist. R. 694; In re McCoy's Estate (Pa.) 16 Wkly. Notes Cas. 243; In re Duffy's Estate, 36 Wkly. Notes Cas. 199; In re Moorhead's Estate, 36 Atl. 647, 648, 180 Pa. 119. The statutory definition of the phrase "dying without issue" is dying without heirs or descendants of the first taker surviving him. 1 Rev. St. 724, § 22; Bowman v. Tallman, 25 N. Y. Super. Ct. (2 Rob.) 385, 401. A will executed in New York contained the following clause: "I direct that, in case my daughter M. should die without issue, that my real and personal property should be possessed and enjoyed by my husband, R. P. W., and my sister, D. F., during their natural lives, and after their death the said real and personal property to be divided equally between my brothers H., J., F., and T., or their representatives, share and share alike; the devise over to my husband, sister, and brothers to depend upon my daughter M. dying without issue." Held, that M. took under her mother's will a base or conditional fee, defeasible by her dying without issue living at the time of her death, under the provisions of 1 Rev. St. 724, § 22, and that her issue, should she leave any, would take by inheritance from her, but a conveyance by her in her lifetime would be effectual as against them, and that an indefeasible title in fee could be conveyed, and the contingent expectant estate, limited to the husband, sister, and brothers of the testatrix in the event of M.'s dying without issue, cut off by their joining with her in a conveyance. In re New York, L. & W. Ry. Co., 11 N. E. 492, 495, 105 N. Y. 89, 59 Am. Rep. 478. The text-books lay down the general rule that where a devise is to one and his heirs, with a devise over "if he die without issue," or "without having issue," and with no explanatory words defining the time to which this contingency is to apply, it will be construed to be a general failure of issue at any time, however indefinite or remote, and which may not, therefore, happen for many generations. But the decisions upon this subject are exceedingly arbitrary, and without much foundation in reason or common sense. Hence courts will seize hold of slight circumstances to give to executory devises a construction which regards the failure of issue as relating to a definite period of time. The construction of the words as importing an indefinite failure of issue will give way to any explanatory words in the context which can be interpreted as fixing the time of the failure at the death of the first taker. Strain v. Sweeny, 45 N. E. 201, 202, 163 Ill. 603. It has been long settled that the words occurring in a will referring to the death of a person without issue, whether the terms be "if he die without issue," or "if he have no issue," or "if he die before he has issue," or "for want of or in default of issue," unexplained by the context, and whether applied to real or personal estate, are construed to import a general indefinite failure of issue. The rule, in the language of Lord Redesdale, is that technical words shall have their legal effect, unless from subsequent inconsistent words it is very clear that the testator meant otherwise, or unless, in the language of Lord Alvaney in Poole v. Poole, 3 Bos. & Pul. 620, the intent appears so plainly to the contrary that no one can misunderstand it. As to personalty, it seems the word "issue" yields more readily to expressions and circumstances in a will tending to confine it to the restricted sense, than when applied to real estate. Tinsley v. Jones (Va.) 13 Grat. 289, 292. In Kentucky and Ohio the term "die without issue" is construed to import a definite failure, unless a contrary intention is plainly expressed in the will, or is necessary to carry out its undoubted purpose. Daniel v. Thomson, 53 Ky. (14 B. Mon.) 662, 708; Lewis v. Shropshire, 68 S. W. 426, 427, 24 Ky. Law Rep. 331; Birney v. Richardson, 35 Ky. (5 Dana) 424, 427; Armstrong v. Armstrong, 53 Ky. (14 B. Mon.) 333, 344; Moore v. Moore, 51 Ky. (12 B. Mon.) 651, 657; Brown's Heirs v. Brown's Devisees, 31 Ky. (1 Dana) 39, 41; McKay v. Merrifield, 53 Ky. (14 B. Mon.) 322; Brashear v. Macey, 26 Ky. (3 J. J. Marsh.) 89, 90; Lee v. Mumford, 44 S. W. 91, 19 Ky. Law Rep. 15, 85; Carter v. Reddish, 32 Ohio St. 1, 14; Parish's Heirs v. Ferris, 6 Ohio St. 563, 574, 575. The Kentucky statutory provision is as follows: | the effect of controlling the generality of this phrase, and of changing it from an indefinite failure, which it would mean when standing alone, to a failure at a definite time, to wit, the death of the first taker. Mendenhall v. Mower, 16 S. C. 303, 312; Gray v. Bridgeforth, 33 Miss. 312, 313; Kennedy v. Kennedy, 29 N. J. Law (5 Dutch.) 185, 188; Howell v. Howell, 20 N. J. Law (Spencer) 411, 415; Groves v. Cox, 40 N. J. Law (11 Vroom) 40, 44; Cutter v. Doughty (N. Y.) 23 Wend. 513, 518; Lewis v. Claiborne, 13 Tenn. (5 Yerg.) 369, 372, 26 Am. Dec. 270. As within lifetime of testator. When the term "survivor" is used, fol"Unless a different purpose be plainly ex-lowing the general phrase "dying without pressed in the instrument, every limitation issue," and unaccompanied by other words in a deed or will contingent upon a person indicating a transferable interest to the heirs dying 'without heirs,' or without 'children' of the survivor, the term will always have or 'issue,' or other words of like import, shall be construed a limitation to take effect when such person shall die, unless the object on which the contingency is made to depend is then living, or, if a child of his body, such child be born within ten months next thereafter." Ky. St. 1903, § 2344. In Massachusetts there is a similar statute, which is as follows: "In a limitation of real or personal property by deed, will or other instrument in writing, * the words 'die without issue,' or 'die without leaving issue,' or 'have no issue,' or 'die without heirs of the body,' or other words importing either a want or failure of issue of any person in his lifetime or at the time of his death, or The words "die without issue" are held an indefinite failure of his issue, shall, un- to refer to death within the lifetime of the less a contrary intention clearly appears by testator. Yocum v. Siler, 160 Mo. 281, 295, 61 the instrument creating such limitation, S. W. 208; Phelps v. Phelps, 11 Atl. 596, 598, mean a want or failure of issue in the life-55 Conn. 359; Coe v. James, 9 Atl. 392, 54 time or at the time of the death of such person, and not an indefinite failure of his issue." Rev. Laws Mass. 1902, p. 1268, c. 134, § 5. And in Maryland there is also a statutory provision: "In any deed of any real or personal estate, the words 'die without is-125 Pa. 568, 11 Am. St. Rep. 922; King v. sue,' or 'die without leaving issue,' or 'have no issue,' or any other words which may import either a want or a failure of issue of any person in his lifetime, or at the time of his death, or an indefinite failure of his issue, shall be construed to mean a want or failure of issue in the lifetime, or at the time of the death of such person, and not an indefinite failure of his issue, unless a contrary intention shall appear by the deed." Pub. Gen. Laws Md. 1888, p. 275, art. 21, § 83. Conn. 511; Lawlor v. Holohan, 38 Atl. 903, 70 Conn. 87; Washbon v. Cope, 39 N. E. 388, 392, 144 N. Y. 287; Coles v. Ayres, 27 Atl. 375, 376, 156 Pa. 197; Appeal of Mickley, 92 Pa. 514, 518; Stevenson v. Fox, 17 Atl. 480, Frick, 19 Atl. 951, 952, 135 Pa. 575, 20 Am. St. Rep. 889; Fowler v. Duhme, 42 N. E. 623, 631, 143 Ind. 248; Teal v. Richardson, 66 N. E. 435, 160 Ind. 119. But when a contrary intent is indicated, they are not so limited. Huston's Lessee v. Hamilton (Pa.) 2 Bin. 387, 392; Vanderzee v. Slingerland, 8 N. E. 247, 103 N. Y. 47, 57 Am. Rep. 701; Cooksey v. Hill, 50 S. W. 235, 237, 106 Ky. 297, 20 Ky. Law Rep. 1873, 1875. When a future interest is limited by a grant to take effect on the death of any perThe words "die without issue," in a will son without heirs, or heirs of his body, or directing that a bequest shall be divided be- without issue, or in equivalent words, such tween other beneficiaries if the first bene- words must be taken to mean successors or ficiary "die without issue," are to be con-issue living at the death of the person named strued, in view of Acts 1862, c. 161, to mean as ancestor. Civ. Code Mont. 1895, § 1475; a want or failure of issue in the lifetime or Rev. Codes N. D. 1899, § 3526; Liston v. Jenat the time of the death of the person so kins, 2 W. Va. 62, 65. taking, unless a contrary intention appears from the will. Hutchins v. Pearce, 31 Atl. 501, 502, 80 Md. 434. "Die without issue," as used in a will devising property to testator's children, and providing that, if they should "die without issue," his or her share should be equally divided among the survivors, means death without issue in the lifetime of testator's surviving children. Schively's Estate (Pa.) 42 Leg. Int. 100. A devise over in case the devisee "dies before the age of 21 years and without issue" imports a definite failure of issue. Dallam v. Dallam (Md.) 7 Har. & J. 220, 236. As without having had issue. In a will creating a remainder in case one of the devisees dies without issue, the words "dies without issue" mean if the devisee dies without having had issue, not without surviving issue. Field v. Peeples, 54 N. E. 304, 305, 180 Ill. 376; Chaplin v. Doty, 15 Atl. 362, 365, 60 Vt. 712. DIE WITHOUT ISSUE LIVING. "Dying without issue living or surviving" is always held to import a definite failure of issue. Granger v. Granger, 46 N. E. 80, 84, 147 Ind. 95, 36 L. R. A. 190 (citing Pells v. Brown, Cro. Jac. 590); Glover v. Condell, 45 Testator devised to his son a farm-to "It is well settled that in gifts of personalty the phrase 'die without living issue' means die without living issue living at the death of the person, the failure of whose issue is spoken of." Still v. Spear, 45 Pa. (9 Wright) 168, 171. DIE WITHOUT LAWFUL ISSUE. In a will, a limitation to T. and his heirs, and, "in case of his death without lawful issue," the estate to revert to R. and his heirs, the words "in case of his death without lawful issue" qualify the general expression "to T. and his heirs," and point out the heirs intended to inherit, and confine them to heirs of his body. Handy v. McKim, 4 Atl. 125, 129, 64 Md. 560. A will devised real estate to children in fee, and then added the following devise over: "But if any one or more of my said children should die before they arrive at full age or without lawful issue then his or her share shall devolve upon and be equally divided among the rest of my surviving children." Held, that the words "without lawful issue," in such connection, meant issue living at the time of his death, and that the devise over was good by way of executory devise, and not too remote. Jackson v. Blanshan (N. Y.) 3 Johns. 292, 299, 3 Am. Dec. 485. Testator, after a devise of a life estate to his children, and the remainder to his grandchildren, provided that, in case any of his children should die without lawful issue, then the portion of his estate which would have gone to such issue should be equally divided among the survivors of his children or grandchildren. Held, that the devise to the survivor or survivors after the death without issue showed that the words "without lawful issue" should be interpreted as though followed by the words "living at the time of his death," and that therefore the devise to the survivors was not void as a limitation on an indefinite failure of issue. Doughty (N. Y.) 23 Wend. 513, 518. Cutter v. The phrase "without legal issue" in a will providing for a legacy, should either of testator's three sons die without legal issue, refers to an indefinite failure of issue, and renders the gift over to the survivors a re mainder, and not an executory devise. Perry v. Kline, 66 Mass. (12 Cush.) 118, 123. The words "dying without leaving lawful issue or descendants," applied to a devise of leasehold property, mean a dying without issue living at the death of the first taker. Allender v. Sussan, 33 Md. 11, 15, 3 Am. Rep. 171. DIE WITHOUT LEAVING CHILDREN. The words "leaving no child or children," in a devise of property directing that if the beneficiary die, "leaving no child or children," the property shall pass to another, cannot be construed to denote an indefinite failure of issue. Hull v. Eddy, 14 N. J. Law (2 J. S. Green) 169, 175. A devise over upon the death of a devisee without leaving child or children does not mean a failure of issue at some indefinite future period, but dying without children at the death of such devisee a definite event. Brooks v. Kip, 35 Atl. 658, 660, 54 N. J. Eq. 462. As used in a will giving money to a certain person, and, if she should die leaving no children, the legacy should go in another. manner, "leaving" should be construed in the sense of the words "having had," so that the contingency contemplated was the death of the legatee without having had a child or children. "If personal estate," said Mr. Hawkins (Hawkins' Wills, 216), "be given to the children of A., the shares to vest in them on attaining a given age or marriage, without reference to their surviving the parent, but there is a gift over on the death of A. without leaving a child or children, the word leaving will be construed ‘having' or having had,' in order not to defeat the prior vested interest." In Theob. on Wills, 532, it is said that the word "leaving," under such circumstances, will be taken as equivalent in meaning to the words "without having had children who take a vested interest." Male v. Williams, 21 Atl. 854, 855, 48 N. J. Eq. (3 Dick.) 33. DIE WITHOUT LEAVING ISSUE. The terms "die without issue," "die without leaving issue," and "die without heirs lawfully begotten" are synonymous. Moody V. Walker, 3 Ark. 147, 198; Paterson v. Ellis' Ex'rs (N. Y.) 11 Wend. 259, 282. The expression "without leaving living issue," as used by a testator in a will making a gift over on the first taker dying without leaving living issue, means lawful issue living beyond the death of the first taker. A testator, after having used expressions which, though containing no words of inheritance, would, standing by themselves, have given a fee simple absolute to his two grandsons, added a provision "that the property willed by me to the said grandchildren should be held in common, and if either of them should depart this life without leaving living issue, then in that case the survivor or the heirs of his body shall inherit all the property and estate devised to both of them." Held that the latter words referred to a death either before or after testator's death, and that each grandson took a base or determinable fee, defeasible by his death without living issue, leaving the other grandson surviving. First Nat. Bank v. De Pauw (U. S.) 75 Fed. 775, 777. The words "without leaving issue," as used in a will providing for the disposition of property "in case of the death of my son S. without leaving issue," mean without leaving issue at the time of the death of the devisee, and not at the time of the death of the devisor. Metzen v. Schopp, 67 N. E. 36. 39, 202 III. 275. As used in a will in which the testator, after giving the remainder of his property to his two children, provided that, if either of them should die without leaving issue, the portion of such child should go to his or her issue in equal shares, is construed to mean "dying without issue" in the testator's lifetime. Hence the children who survive the testator would take an absolute estate. Phelps v. Robbins, 40 Conn. 250, 264. As indefinite failure of issue. the lifetime or at the time of the death of such person, and not an indefinite failure of his issue unless a contrary intention shall appear by the deed. Pub. Gen. Laws Md. 1888, p. 275, art. 21, § 83. In a limitation of real or personal property by deed, will, or other instrument in "die without leaving issue," or "have no iswriting, the words "die without issue," or sue," or "die without heirs of the body," or other words importing either a want or failat the time of his death, or an indefinite failure of issue of any person in his lifetime or ure of his issue, shall, unless a contrary intention clearly appears by the instrument creating such limitation, mean a want or failure of issue in the lifetime or at the time of the death of such person, and not an indennite failure of his issue. Rev. Laws Mass. 1902, p. 1268, c. 134, § 5. It was settled at common law that the phrase "leaving no issue," or "without leaving issue," when applied to a devise of land, meant an indefinite failure of issue, but, when applied to a bequest of personalty, it imported failure of issue at the time of the death of the first legatee. Patterson v. Madden (N. J.) 33 Atl. 51. DIE WITHOUT LEAVING LAWFUL IS- Die leaving no issue behind him, see In the following cases the words "die without leaving issue" have been held to import an indefinite failure of issue: Kay v. Scates, 37 Pa. (1 Wright) 31, 39, 78 Am. Dec. 399; Middleswart's Adm'r v. Blackmore, 74 Pa. (24 P. F. Smith) 414, 419; Parkhurst v. Harrower, 21 Atl. 826, 142 Pa. 432, 24 Am. St. Rep. 507 (citing Taylor v. Taylor, 63 Pa. [13 P. F. Smith] 481, 3 Am. Rep. 565; Middleworth's Adm'r v. Blackmore, 74 Pa. [24 P. F. Smith] 414); In re Miller's Estate, 22 Atl. 1044, 145 Pa. 561; Moody v. Walker, 3 Ark. (3 Pike) 147, 148; Morehouse v. Cotheal, 21 N. J. Law (1 Zab.) 480, 490; Paterson v. El- DIE WITHOUT LEGAL ISSUE. lis' Ex'rs (N. Y.) 11 Wend. 259, 282. On the other hand, the following cases have held that they do not import an indefinite failure of issue Atwell's Ex'rs v. Barney (Ga.) Dud. 207, 208; Harris v. Smith, 16 Ga. 545, 548; Nicholson v. Bettle, 57 Pa. (7 P. F. Smith) 384, 387 (citing Porter v. Bradley, 3 Term R. 143); Patterson v. Madden, 54 N. J. Eq. 714, 720, 36 Atl. 273, 274. There is a marked difference between a gift over in a will, the first taker's dying with lawful issue, and a gift over on his dying without leaving lawful issue surviving. The latter, if it means anything, must mean lawful issue living beyond the death of the first taker. It is much more expressive than the phrase "leaving no lawful issue behind him," which, in Porter v. Bradley, 3 Term R. 143, was held to denote a definite failure of issue. Nicholson v. Bettle, 57 Pa. (7 P. F. Smith) 384, 387. In any deed of any real or personal estate, the words "die without issue," or "die without leaving issue," or "have no issue,” or any other words which may import either a want or a failure of issue of any person in his lifetime or at the time of his death, or an indefinite failure of his issue, shall be construed to mean a want or failure of issue in See "Die Without Lawful Issue." DIE WITHOUT LIVING HEIRS. The words "death without living heirs," as used in a will providing that, in case of devisee's death without living heirs of his own, the whole shall revert to testator's heirs, when given their natural meaning, can only be construed as referring to death at any time, and not simply to death within the lifetime of testator. Thomas v. Miller, 43 N. E. 848, 850, 161 Ill. 60. DIE WITHOUT LIVING ISSUE. See "Die Without Issue Living." DIES JURIDICUS. The civilians employed this term to denote days for legal purposes or judicial proceedings. Didsbury v. Van Tassel, 10 N. Y. Supp. 32, 33, 56 Hun, 423. DIES NON. "Dies non" is an abbreviation of the phrase "dies non juridicus," universally used to denote nonjudicial days-days during which the courts do not transact any business-as Sunday or the legal holidays. Наvens v. Stiles (Idaho) 67 Pac. 919, 921, 56 L. R. A. 736. DIES NON JURIDICUS. It is frequently said that Sunday is "dies non juridicus," but this means only that pro cess cannot ordinarily issue or be executed or returned, and that courts do not usually sit, on that day. It does not mean that no judicial action can be had on that day. On the contrary, it is laid down in books of authority that warrants for treason, felony, and breach of the peace may be issued and executed on that day. State v. Ricketts, 74 N. C. 187, 193. clude mere failure of one to pay a debt owing to another. Fravert v. Fesler, 53 Pac. 288. 290, 11 Colo. App. 387. Rejection by an assured of an offer by an insurance company of a certain amount in settlement of the damages to the insured property constitutes a difference between the parties, within the meaning of a condition in the policy that any difference as to the amount of loss shall be submitted to arbitration before action brought. Pioneer Mfg. Co. v. Phoenix Assur. Co., 10 S. E. 1057, 1059, 106 N. C. 28. Palpable abuse of judicial discretion is not beyond remedy, but "difference in judicial opinion" is not synonymous with "abuse of judicial discretion." Day v. Donohue, 41 Atl. 934, 935, 62 N. J. Law, 380. DIFFICULT. ex It The term "difficult and extraordinary case," in statutes providing for an extra allowance in a difficult and extraordinary case, includes all cases of a difficult or extraordinary character, and includes a suit to foreclose a mechanic's lien, if difficult or traordinary. Horgan v. McKenzie, 17 N. Y. Supp. 174, 175. The term, as so used, should The term "dies non juridicus" was used be construed as synonymous with "litigated,” by the civilians to designate the days in and hence all litigated cases are difficult. which judicial proceedings were prohibited, should not mean simply a case where a but, with the exception of Sunday, we have party's debt was doubtful or unfounded, and no such days; and hence Laws 1881, c. 30, that, by the skill or ingenuity or the smartproviding that certain days, including Christ-ness of his counsel, he had performed the difmas, shall be considered Sunday, for the purpose of presenting and producing commercial paper, and for the purpose of transacting business in a public office, does not diminish the number of judicial days, and service of a summons on Christmas is valid. Didsbury v. Van Tassel, 10 N. Y. Supp. 32, 33, 56 Hun, 423. DIETING. "Dieting," as used in Rev. St. c. 53, § 19, providing that the sheriff shall receive for dieting each prisoner such compensation, to cover the actual costs, as may be fixed by the county board, means providing and furnishing to the prisoners their daily food. Cook County v. Gilbert, 33 N. E. 761, 762, 146 Ill. 268. DIFFERENCE. In a contract providing that it is hereby understood that should any difference arise in regard to the proper performance of the contract, etc., then said difference shall be left to the arbitrators, "difference" means disagreement or dispute, and would not in ficult task of obtaining a verdict contrary to evidence, for, while this would establish a difficult as well as an extraordinary case, in the literal acceptation of the term, it would not be such in a legal acceptation thereof, which is that defendant has forced plaintiff, the owner of a claim plainly and clearly just, to resort to trouble and expense in order to enforce payment thereof, and it is for the reimbursement of such expenses that he is entitled to an extra allowance. Dyckman v. McDonald (N. Y.) 5 How. Prac. 121, 122. It means the opposite of "common and ordinary." Each case must be determined according to its own peculiar circumstances, and each judge must necessarily be guided by his own individual experience as to what actions and trials are difficult or extraordinary. All litigated trials cannot be considered difficult, within the statute, because such a construction would completely nullify the words "difficult and extraordinary," as used, and contravene the plain intent of the Legislature. "Difficult" should probably be applied to questions of law involved in the action, while "extraordinary" may apply to any other feature or circumstances distinguishing the case from ordinary litigations. Fox v. Gould (N. Y.) 5 How. Prac. 278, 279. |