Statement of case.

remainder-over void. (1 R. S. 732, § 81; Taggart v. Murray, 53 N. Y. 233, 238; Terry v. Wiggins, 47 id. 512, 518; S. C., 2 Lans. 272; Bliven v. Seymour, 88 N. Y. 469, 477; Doe v. Howland, 8 Cow. 277.) The words "shall go to" express the intent of the testator as clearly as more formal legal phraseology. (Bliven v. Seymour, 88 N. Y. 469, 476.)

William Tiffany for respondent. The will gives to Charles H., the son, the remainder in fee "in clear, positive and express terms and language known to the law, and which calls for no interpretation." This passes the fee and all the interest of the testator, "unless the intent to pass a less estate appears by express terms, or be necessarily implied in the terms of the will. (2 R. S. chap. 1, tit. 5, § 1 [6th ed.] 1130; Kelley v. Kelley, 5 Lans. 443, 444.) The words, "what may remain," are precisely equivalent to the words "the remainder," and such an estate may be created and transferred by that name. (2 R. S. chap. 1, tit. 2, § 11.) It is evident from the whole will that the testator intended to dispose of his entire estate, and the will should be so construed as to effect that end, if possible. (Jackson v. Merrill, 6 Johns. 191; Vernon v. Vernon, 53 N. Y. 361; Thomas v. Thomas, 43 Hun, 15; Buckland v. Gallapp, 22 Week. Dig. 23.) The words in the will, "in case my son, Charles H., should die without children," have reference to the death of Charles H., before the death of the testator, and not to his subsequent death. (Gibson v. Walker, 20 N. Y. 128; Kelly v. Kelly, 5 Lans. 423, 445; Quackenbos v. Kingsland, 102 N. Y. 128; In re N. Y. L. & W. R. R. Co., 26 N. Y. Week. Dig. 133; Campbell v. Beaumont, 91 N. Y. 465; Van Horn v. Campbell, 100 id. 287.) If the son Charles H. died before the death of the testator, leaving children, such children would take the estate devised to him in his stead. (2 R. S. chap. 6, tit. 1, art. 3, § 52; Livingstone v. Green, 6 Lans. 54; Taggart v. Murray, 53 N. Y. 238, 239; Clarke v. Leupp, 88 id. 231; Murray v. Douglass, 5 id. 453; Parsons v. Best, 1 Sup. Ct. [T. & C.] 211, 213.) If the son might dispose of the real estate, then,

Opinion of the Court, per ANDREWS, J.

any remainder limited upon his estate, his estate being the fee, would be utterly void, and the claim of a devise to Augustus Southwick fails. (Brewster v. Bull, 10 Johns. 19; Livingstone v. Robins, 16 Johns. 19; Livingstone v. Delancy, 13 id. 537; McKenzie's Appeal, 41 Conn. 607; 19 Am. Rep. 525; Atty. Gen. v. Hull, Fitz. 314; Ramsdel v. Ramsdel, 2 Me. 288; Harris v. Knapp, 21 Pick. 416; Lynch v. Easterbrook, 7 Allen, 68; Fisk v. Cobb, 6 Gray, 144; Homer v. Shelton, 2 Metc. 202; 4 Kent's Com. 270; 1 Jarman on Wills [Perkins' ed.] 677, note 2.) The title of Charles H. Southwick was not divested by his conviction and sentence to the state prison for life. (Planter v. Sherwood, 6 Johns. Ch. 118, 127.) Civil death is the separation of a man from civil society, or from the enjoyment of civil rights, as by banishment, abjuration of the realm or entering into a monastery. (1 Black. Com. 132; 1 Bouvier's L. Dict. 232; Freeman v. Frank, 10 Abb. Pr. 370; Kynnaird v. Leslie, 1 S. R., C. P. 289; S. C., 12 Jur. [N. S.] 468; 35 L. J., C. P. 226; 14 W. R. 761; 14 S. T. [N. S.] 756; Doe ex d. Griffith v. Pritchard, 5 B. & Ad. 765; Evans v. Pritchard, 2 N. M. 489; Ramsey v. McDonald, 1 W. Bl. 30; 1 Wils. 217; Davis v. Duffer, 1 Abb. Ct.App. Dec. 486; 8 Bosw. 617; Bowles v. Habeman, 95 N. Y. 246, 249, 250; Bishop v. Curtis, 17 Jur. 23; 21 L. J., Q. B. 391; 18 Q. B. 878; Combs v. Queen's Proctor, 2 Rob. Ecc. Rep. 547; 16 Jur. 820.)

ANDREWS, J. We concur in the conclusion of the courts below that, by the true construction of the will of John H. Southwick, his son, Charles H. Southwick, took, upon the testator's death, a vested remainder in fee, limited upon the life estate of his mother in the premises in question, subject, however, to be defeated by a condition subsequent, viz., his death without children, in which event the substituted remainder given in that contingency to Augustus Southwick, the son of the testator's brother Nathan, would vest in possession, thereby displacing the prior fee given to the testator's son Charles. SICKELS-VOL. LXV. 41

Opinion of the Court, per ANDREWS, J.

(Vanderzee v. Slingerland, 103 N. Y. 47; In re N. Y., L. & W. R. R. Co., 105 id. 89.) The plaintiff claims under the devise to Augustus Southwick. The widow of the testator died September 1, 1869, after the death of her husband. Charles H. Southwick is still living, unmarried, and without children.. If nothing further appeared, the plaintiff's action would necessarily fail for the reason that the contingency had not happened upon which the estate of Augustus Southwick is limited, and the defendant George Everett, who is the lessee of Charles H. Southwick, would be entitled to judgment. The plaintiff, to obviate this apparent difficulty, proved that Charles H. Southwick, in October, 1875, was convicted of the crime of murder in the second degree and was thereupon sentenced to imprisonment in the state prison at Auburn for the term of his natural life, and, from that time, has been imprisoned pursuant to such sentence. The plaintiff contends that, as the life estate of the widow was terminated by her death, and as Charles H., on his sentence to imprisonment for life, became civilly dead, the contingent estate given by the will to Augustus Southwick in case "Charles H. should die without children," his became an actual fee.

Assuming that a civil death consequent upon a sentence to imprisonment for life, operates eo instanti to divest the person sentenced of his estate, a point we shall hereafter consider, there is still another question, viz.: Whether such a death was contemplated by the testator, and whether the words of limitation to Augustus Southwick are to be construed as applying to a civil, or only to the natural death of Charles H. Southwick. It is possible that Charles H. may be pardoned and may marry and have children. It is plain that Augustus Southwick can take only according to the will, and that if, by its true construction, the natural death of Charles H., without children, was solely the contingency upon which the substituted fee is to vest, the plaintiff must fail on this ground, independently of any other, and whatever conclusion might be reached as to the effect of the civil death of Charles H. upon his own estate under the will. It is said by Coke

Opinion of the Court, per ANDREWS, J.

(Co. Litt. § 200), speaking of the two species of death, mors civilis and mors naturalis, that to "oust all scruples, leases for life are ever made during the natural life," etc. We have found no authority upon the construction of the word "death" in a will as applied to circumstances like these in the present case. We deem it unnecessary to decide the point suggested, as we are of opinion that the title of Charles H. Southwick to his land was not divested as a consequence of his sentence to imprisonment for life; and it follows, as a necessary consequence, that Augustus Southwick, or his grantee, has no present vested interest upon which to maintain ejectment.

The Revised Statues declare that a person sentenced to imprisonment for life "shall thereafter be deemed civilly dead." (2 R. S. 701, § 20.) This provision was re-enacted in the Penal Code ($ 708). The only statutory provision on this subject existing in this state prior to the Revised Statutes is found in an act passed March 29, 1799, which enacted that in all cases where a person shall be convicted and attainted of any felony thereafter committed and adjudged to imprisonment for life in the state prison, "such person shall be deemed and taken to be civilly dead to all intents and purposes in the law," and the statute of 1799 remained unchanged until the provision in the Revised Statutes, to which we have referred, was substituted. (1 Rev. Laws of 1813, 411.) In the absence of any legislation on the subject, the common-law consequences of a conviction for felony attached in this state and remained until abrogated or changed by Constitution or statute. (2 Kent, 386.) By the common law the civil death of the offender was one of the consequences of attainder for treason or felony, and in Troup v. Wood (4 Johns. Ch. 248), the chancellor seemed to entertain no doubt that, on a conviction in this state, prior to 1799, of an offense which was a felony at common law, the commonlaw incident of civil death attached, and this as well where the statute had changed the punishment from death to imprisonment for life as in the case of a capital sentence.

Opinion of the Court, per ANDREWS, J.

To ascertain the meaning of the phrase "civil death," as used in the Revised Statutes, and whether the statute, on a sentence of an offender to imprisonment for life, operates eo instanti to divest him of his estate, it is important to consider how civil death affected rights of property at common law. By the ancient common law when sentence was pronounced for a capital offense, the offender by operation of law was placed in a state of attainder. (1 Chitty on Crim. Law, 723.) There were three principal incidents consequent upon an attainder for treason or felony, viz., forfeiture, corruption of blood and an extinction of civil rights, more or less complete, which was denominated civil death. Forfeiture was a part of the punishment of the crime, and was of Saxon origin, by which the goods and chattels, lands and tenements of the attainted felon were forfeited to the king, the former absolutely on conviction, and the latter perpetually, or during the life of the offender, on sentence being pronounced. The doctrine of corruption of blood was of feudal origin, introduced after the Norman Conquest. The blood of the attainted person was deemed to be corrupted, so that neither could he transmit his estate to his heirs, nor could they take by descent from the ancestor. The crime of the attainted felon was deemed a breach of the implied condition in the donation of the feud, dum bene se gesserét, and the descent to his heirs being interrupted by the corruption of blood, his lands escheated to the lord. But this escheat was subordinate to the prior and superior law of forfeiture. (Comyn, tit. Forfeiture, K; 2 Black. Com. 252; 1 Chitty on Crim. Law, 723-728; Broom & Had. Com. 404; 1 Salk. 85.) The incident of civil death attended every attainder of treason or felony, whereby, in the language of Lord COKE, the attainted person "is disabled to bring any action, for he is extra legem positus, and is accounted in law civiliter mortuus" (Co. Litt. § 199, note), or, as stated by Chitty (1 Crim. Law, 724), "he is disqualified from being a witness, can bring no action, nor perform any legal function, he is, in short, regarded as dead in law."

The forfeiture of the estate of the attainted felon