act of 1821 (Cobb, Dig. p. 169), vest in the were within the statute de donis; and that, that these and other equivalent words create therefore, the first taker took the absolute an estate tail under the statute de donis fee under our act of 1821. In Hose v. King, | conditionalibus, and therefore, under our 24 Ga. 424, the bequest was to A, a daughter, and the lawful heirs of her body forever. If she should die without leaving a lawful heir of her body, then the property to revert to the testator's estate, and be divided among his other heirs. Judge Lumpkin, who delivered the opinion of the court, said: "According to the construction put upon the statute de donis by the English courts as to real estate, the limitation over in this will is too remote and void; and that under the act of 1821 as expounded by a majority of this court (myself dissenting) in Gray v. Gray, 20 Ga. 804, . . [A], the daughter of the testator, took an absolute fee." In Claxton v. Weeks, 21 Ga. 265, the bequest was: In case of no heir, I wish A, as executrix, to give the property to B, C and D equally, when A my executrix, thinks prudent. Judge Lumpkin, who rendered the opinion of the court, held (page 269) that the words "in case of no heir" did not create an estate tail,-First, because no estate in freehold preceded the words; and, secondly, because the bequest was to be divided within the lifetime of the named executrix, which made the words mean a definite failure of issue. It is therefore clearly inferable from these two reasons that if the bequest had been to "A, and, in case of no heir, to B," the court would have held that the bequest created an estate tail beyond all doubt, and that would have made a parallel case with the one now under consideration. In Brown v. Weaver, 28 Ga. 377, the bequest A fee conditional, at common law, whereby was to A and B and their children (they then an estate was given simply to A and his ishaving no children), and, if they shall die sue, or to A and the heirs of his body, in exwithout issue, then over. The court held, clusion of collateral heirs, and A took the Judge Stephens delivering the opinion, that, fee as soon as any issue was born, or it reas the bequest would create an estate tail verted to the donor's estate if no issue was in real property, A and B, under our act of born (2 Bl. Com. 110), was the origin of 1821, took the absolute fee. In Pournell v. the statute de donis allowing the entailment Harris, 29 Ga. 736, the bequest was to A for of real property in favor of the issue? 2 Bl. life, and at her decease to the heirs of her Com. 112: 2 Minor, Inst. 3d ed. marg. pages body lawfully begotten; but, if she should 78. 79: Tiedeman, Real Prop. §§ 45, 46. die without issue, then over. The will was After the statute de donis, such fees condimade in Virginia, where in 1776, the legisla- tional as applied to real property were also ture had passed an act, like our act of 1821, invariably declared to be estates tail in Engenlarging estates tail into fee-simple estates. land (2 Bl. Com. 112; 3 Jarman, Wills, It was held, Judge Lyon delivering the opin- Randolph & Talcott's ed. pp. 89. 94, 203); ion, that A took an estate tail, which the and in Georgia, as applied to both real and Virginia act of 1776 converted into a fee- personal property, they have always been simple estate. In Walls v. Garrison, 33 Ga. held to be estates tail, and vest the absolute 341, the devise was an estate tail by impli- estate in the first taker, under our act of cation under the English law. Judge Jen- 1821, unaffected by the act of 1854, or any kins, who delivered the opinion of the court. subsequent law. Kemp v. Daniel, 8 Ga. said: "The dispositive words in the will 387 (top); Smith v. Dunwoody, 19 Ga. 237, are, I give and bequeath to my be- 258, 259: Childers v. Childers, 21 Ga. 378: loved wife, Mary Bird, the whole of the bal- Carroll v. Carroll, 25 Ga. 260, 262; Andrews ance of my estate: and should my v. Bonner, 26 Ga. 520; Caraway v. Smith, wife, Mary, die without a natural heir of her 28 Ga. 541: Whatley v. Barker, 79 Ga. 790, body, it is my will and desire that the whole 4 S. E. 387: Craig v. Ambrose, 80 Ga. 134, of my estate go to my brother, William B. 4 S. E. 1: Ewing v. Shropshire, 80 Ga. 374. Bird. Upon the death of Mary Bird, leav-7 S. E. 554; Griffin v. Stewart. 101 Ga. 720, ing no lineal descendant surviving, is this limitation over good? This is not an open question in Georgia. In Hollifield v. Stell, 17 Ga. 280, Childers v. Childers, 21 Ga. 377. and Brown v. Weaver, 28 Ga. 378, it is held 29 S. E. 29: Civil Code, § 3085. An executory devise which was limited upon a definite failure of issue, as then understood. was valid at the time the will in this case took effect. Mayer v. Wiltberger, Ga. Dec. pt. 2, pp. 20, 26; Carlton v. Price, 10 Ga. 498; Groce v. Rittenberry, 14 Ga. 232; Burton v. Black, 30 Ga. 638; Hill v. Alford, 46 Ga. 250, 251. But at that time an executory devise which was limited upon an indefinite failure of issue, as then defined, was void for remoteness. Mayer v. Wiltberger, Ga. Dec. pt. 2, pp. 20, 26; Robinson v. McDonald, 2 Ga. 116 (syl., point 3); Carlton v. Price, 10 Ga. 498, and the cases hereinbefore cited on the question of estates tail. See also Smith, Executory Interest, §§ 709, 714; 1 Jarman, Wills, Randolph & Talcott's ed. p. 519, and notes "p" and 15, where many cases are collected. Accordingly, an apposite class of a determinable or defeasible fee (called by some judges a "base" or "qualified" fee), with a valid executory devise over, at the time the will now being construed took effect, is one made to A, and, upon his dying without child or children, or dying without issue living at the time of his death, or other words importing a definite failure of issue, then to B, whereby the absolute fee became vested in A's estate upon his leaving issue at his death, or passed to the executory devisees if he died without leaving such issue. It seems like grasping at a shadow for persons to claim real property in this state as executory devisees under a devise governed by the law existing before our act of 1854, and which devise created an estate tail by implication in England, on the grounds either that such estates tail were not included in the statute de donis, or that the laws of Georgia at that time construed such estates to pass an estate for life to the first taker, with remainder to his issue, if any, and, if none, over to the executory devisees. If estates tail by implication were not included in the statute de donis, the limitations over in such estates were always made upon an indefinite failure of issue, which of itself, as above shown, defeats the claim of the executory devisees on the ground that such devise to them was void for remoteness. And it follows that under the law existing before our act of 1854 such a result of cutting up an estate tail by implication in the manner above stated was absolutely impossible. That act, which is on a line with the English wills act of 1837, enacts that "dying without heirs," "dying without issue," and other expressions which had theretofore meant an indefinite failure of issue shall thereafter mean a definite failure of issue, but is silent as to the nature of the estate taken by the first taker and the issue. There is a dictum in one case (Tucker v. Adams, 14 Ga. 583) that the act implies that the first taker is to have a life estate, with remainder to the issue, and, if none, then to the executory devisees; and that this was a declaratory act. But in Ewing v. Shropshire, 80 Ga. 381, 7 S. E. 554, Chief Justice Bleckley, who delivered the very able opinion of the court in that case, after reviewing the laws applicable to this subject, thus speaks about the codification of the law of estates tail by implication in our Code: "This carving up of any and all estates tail by implication into a particular estate and a remainder is wholly new." His position is undoubtedly correct; and that the act of 1854 is not a declaratory statute of any former law, and that it converted into a defeasible fee what before the act was an estate tail by implication, see also Worrill v. Wright, 25 Ga. 657, 659. Therefore, the words in this will, "in case she has no issue," unexplained by the context (the will having been made in 1849, and the testator having died in 1850), must fall within the definition of an indefinite failure of issue. "Issue," in this term, can include an unborn grandchild, or great-grandchild, and so on in infinitum in the line of the first taker's issue, which clearly creates an estate tail under the statute de donis, as ruled by all the English decisions, and therefore gives the first taker the absolute fee under our act of 1821. To restrict the meaning of this term to a definite failure of issue, in order to make the executory devise valid, it would be necessary to add words to it so as to make the term read, "in case she has no issue living at the time of her death." This, of course, we have no legal right or power to do, as we must construe the words as we find them in the will, according to the rules of interpretation adopted by the English courts for centuries, and adhered to by many decisions of this court. To disregard these rules of interpretation at this late day "would not only frustrate the great landmarks of property, but would introduce a latitude of construction boundless in its range, and pernicious in its consequences." The cases cited in the brief of the learned counsel for the plaintiffs in error are distinguishable from the case at bar. We need only refer to those cited from the Reports of this court to show that they do not conflict with the views we maintain in this case. In Sharman v. Jackson, 30 Ga. 224, and Herring v. Rogers, 30 Ga. 615, there are no limitations over to executory devisees, and the devises are to A for life, and at his death to be equally divided between the heirs of his body; which is the same, as held in those cases, as giving a remainder to the heirs of A's body living at his death. The case of Wetter v. United Hydraulic Cotton Press Co. 75 Ga. 540, which counsel for plaintiff in error contend should have been held to be a defeasible fee in Mrs. Wetter, could only be so construed because the limitations over were upon a definite failure of issue, the devise expressly stating, if she should "die without issue as aforesaid (that is, without leaving issue or lineal heirs), then living." And the reasons which impelled the court in that case to hold that Mrs. Wetter took a life estate are wholly inapplicable to the case now under consideration. The case of Matthews v. Hudson. 81 Ga. 120, 7 S. E. 286. was not only based on a will probated in 1854, but the property was limited over upon the first taker dying without child or children, which would have been a definite failure of issue as well before as after the act of 1854. The cases of Gibson v. Hardaway, 68 Ga. 370, Daniel v. Daniel, 102 Ga. 181, 28 S. E. 167, and Chewn ing v. Shumate, 106 Ga. 751, 32 S. E. 544, | opinion; and that in 1 Washb. Real Prop. whether rightly or wrongly decided, have no 5th ed. p. 104 [*72], estates tail, the source application to the present case, because they of which is the statute de donis, are defined are based on wills made, not only after the to be "estates of inheritance, which, instead act of 1854, but even since the Code. The of descending to heirs generally, go to the cases of Groce v. Rittenberry, 14 Ga. 233; heirs of the donee's body, which means his Doe ex dem. Sheftall v. Roe, 30 Ga. 453; lawful issue, his children, and through them Forman v. Troup, 30 Ga. 496; Burton v. to his grandchildren, in a direct line, so long Black, 30 Ga. 638; Tennell v. Ford, 30 Ga. as his posterity endures, in a regular order 707; and Hill v. Alford, 46 Ga. 250,-which and course of descent." (2) That while the are based upon wills made before the act of words "having no issue," "dying without 1854; and the case of Greer v. Pate, 85 Ga. leaving issue," and "die leaving no lawful 552, 11 S. E. 869, which was upon a deed, heirs" were uniformly construed in England -all declared defeasible fees in the first to mean an indefinite failure of issue when takers only because the executory devises applied to real property, yet the last two were limited in each case upon a definite fail- expressions were construed by the English ure of issue, as is clearly shown in some of courts to mean a definite failure of issue these cases by the terms themselves without when applied to bequests of personal propthe aid of superadded words, and in others erty, which latter construction should be by the use of such words, though the court adopted in this state as the proper one in seems to have somewhat stretched the super- cases of both personalty and realty; and that added words in Forman v. Troup to reach it is not possible "that this double meaning the conclusion of a definite failure of issue can belong to the same terms of the in that case. In Doe ex dem. Sheftall v. same law," the statute de donis. To this Roe, which is a case especially relied on, we answer that the English courts, when the words "leaving no issue" were explained construing these words as to personalty, did to clearly mean grandchildren of the testa- not have before them the statute de donis tor by the superadded words, "they [the is- and the question of an estate tail, because sue] shall not inherit their father's or personalty was not within the statute, and mother's portion of my estate before they could not be entailed, and hence there was attain the age of eighteen years." In Ten- nothing in the way of enforcing the probnell v. Ford, the devise was to A and B, and, able intent of the testator in such cases; if B should die before arriving at age, or that, when they construed these words as to without issue, his share to go to the surviv- realty, the statute de donis and the question or. The court held that "or" should be con- of an estate tail were before them, the statstrued "and," so as to mean if B should ute having reference to the entailment of die without issue before arriving at age, real property, and in such cases they held which would be a definite failure of issue. that the probable intent of the testator was This ruling was correct, and in no wise af- to entail the property, and, if not, that the fects the contention of the defendant in er- latter intent could not contravene the deror. See Smith, Executory Interest, §§ 235, sign of that statute, and the invariable con236, where the reason for the rule is explicit-struction of these expressions when applied ly stated with ample citation of authority. to devises of real property; and that our act And in Burton v. Black, Judge Stephens of 1821 says that whenever expressions in said (p. 640) that a devise to A for life, gifts, grants, bequests, devises, and conveyand, if he die without issue, to B, would cre- ances made in this state "would have passed ate an estate tail by implication. The other an estate tail in real property by the statute cases arising on wills made before the act de donis, they are to be held and construed of 1854, which are more apparently allied to to vest in the person or persons to whom the the present case, are Harris v. Smith, 16 Ga. same may be made or executed (the first 545, and Griswold v. Greer, 18 Ga. 545. In taker) an absolute, unconditional fee-simple the former the devise was to A for life, with estate." (3) That the reason for the statremainder to B, provided, nevertheless, if Bute de donis was to give the "heir at law” should die, leaving no lawful heirs, then, in the property, and hence, as primogeniture that case, to be equally divided, share and share alike, between the lawful children of C. Judge Starnes first announced three reasons to support his contention that the words "die leaving no lawful heirs," in a devise of real property, meant a definite failure of is(1) "That there is nothing in the statute [de donis] which sanctions the idea that when one was said to die without issue or heirs reference was had to a failure of issue at any remote time after his death." Page 552. To which we answer that the statute, as quoted in part by him, says: "If issue fail (in that there is no issue at all), or if any issue be and fail by death," or "heir of the body of such issue failing," that the statute has always been construed in England to an effect just the reverse of his sue: had been abolished in this state, the reason for the conventional rule of construction of the statute de donis had been revealed. To which we answer that this reason imputes to the legislature of this state the performance of a useless task in passing the act of 1821, and that the statute de donis itself shows, and it is declared in numerous English decisions, that its design was in favor of the issue, which means all the issue, male and female, unless the devise was specially to male issue or specially to female issue; and hence primogeniture, which was a canon in the law of descent of real property, clearly had nothing to do with this question. Moreover, Judge Starnes seems to have doubted his own premises, because, after saying, "should we be wrong in all that we have said," he finally seized upon the words "then "and her issue, if any,” and “dead without in that case" as superadded words qualifying issue," having reference to issue of the the words "die leaving no lawful heirs," con- daughter living at the death of the testator's strued the word "then" to be an adverb of wife, manifestly mean a definite failure of time relating to the death of the first taker, issue, viz. children of B, the daughter; and so as to make "lawful heirs" mean "chil- therefore it might, though we do not say it dren." and was thus enabled to decide that would necessarily, in this particular case the first taker in that case took a defeasible make "issue" in the subsequent term "leavfee, subject to be defeated in favor of the ex- ing no issue" also mean children of B, the ecutory devises, should he die without then daughter. 3 Jarman, Wills, Randolph & leaving children. The word "then" in the Talcott's ed. p. 236, and note "p." Adopting case of Harris v. Smith is referred to in San- this view, the devise may be paraphrased ford v. Sanford, 58 Ga. 260, as an adverb of thus: To A, for life, and after her death time. It is unnecessary, however, for us to absolutely and in fee simple to B and her isdecide whether this construction of the sue (children), if any; but, if B be dead at words "then in that case" is correct, as no that time, without issue (children), or dies such superadded words appear in the devise afterwards, leaving no issue (children), in the case now under consideration, though then, and in either of these events, to the cases can be cited to show that the very same children of C, D, and E. And this is the way words have been differently construed. The the devise in this same will is read in Payne terms of the will construed in Griswold v. v. Rosser, 53 Ga. 662. Moreover, the addiGreer were: "I bequeath and de- tional words "then, and in either of these vise to my said wife, for and during her nat- events," are not in the present case. And ural life, the whole of the residue of my es- what we have said above in answer to the tate, both real and personal. And three reasons advanced by Judge Starnes in at the death of my said wife it is my will and the case of Harris v. Smith will also apply desire that the whole of the above-mentioned as answers to the same reasons set forth by residue of my estate result to and vest abso-him in his opinion under the second headnote lutely in fee simple in my daughter [B] of the case of Griswold v. Greer. if then living, and her issue, if any; but, if my said daughter should at that time be dead, without issue, or afterwards die, leaving no issue, then, and in either of said events, it is my desire and will that the said residue of my estate be equally divided among the lawful children of" C, D, Here "issue" in the preceding terms, and E. It follows, therefore, as the law of the present case is clearly on the side of the defendant in error, that the judgment of the court below should be affirmed. All the Justices concur, except Fish, J., absent on account of sickness. UTAH SUPREME COURT. In construing a contract, each of its provisions must be considered in connection with the others, and, if possible, effect must be given to all. A contract between the plaintiff and NOTE-Right of teacher to salary during tem- II. Building destroyed or unfit for use. IV. Lack of funds. V. Special contract provisions. The general rule, with which the decision in MCKAY V. BARNETT is in harmony, is that no deduction can be made from a teacher's salary where a school is closed during the term on acCount of epidemics, destruction of building, or holidays, unless special provision is made in the contract which will allow such deduction to be made. Libby v. Douglas, 175 Mass. 128, 55 N. E. 808; School Town v. Gray, 10 Ind. App. | the board of education of Salt Lake City, wherein, among other things, plaintiff bound herself "to give her entire time and best efforts in any of the schools of said city to which she might be assigned," for four weeks of five days each in each month from September 11, 1899, until June 1, 1900, or until the termination of the contract by the board of education for misconduct, etc., or for any other reason than those specially mentioned, on four weeks' notice, carries with it by implication that the board of education shall, in case it failed to furnish plaintiff with employment as teacher, pay her the stipulated wages during the time mentioned, or until Corn 428, 37 N. E. 1059; Randolph v. Sanders, 22 Tex. Civ. App. 331, 54 S. W. 621; Dewey v. Union School Dist. 43 Mich. 480, 5 N. W. 646 Mason v. School Dist. No. 14, 20 Vt. 487; School Directors v. Crews, 23 Ill. App. 367; Charlestown School Twp. v. Hay, 74 Ind. 127; V. Board of Education, 39 Ill. App. Smith v. School Dist. No. 2, 69 Mich. 589, 37 N. W. 567; Cashen v. School Dist. No. 12, 50 Vt. 30 Bromley v. School Dist. No. 5, 47 Vt. 381; Holloway v. School Dist. No. 9, 62 Mich. 153, 28 N. W. 764; School Dist. No. 4 v. Gage, 39 Mich. 484, 33 Am. Rep. 421. 446 I. Epidemics and sickness. No deductions can be made where the school 3. 4. said board terminated the contract as therein provided, and the arbitrary closing of the schools by the board of education during an epidemic of smallpox, although it may have been a wise precaution, did not release the plaintiff under the contract, or change the obligation of the board. A stipulation, in a contract of employment, to pay plaintiff a certain wage "for the time actually occupied in school," must be construed simply as an intention to prohibit plaintiff from drawing her salary during vacation, or during the time she might be excusably absent or temporarily unable to discharge her duties, and not to apply to such time as the defendant might arbitrarily prevent plaintiff from performing her duties without discharging her under the contract. Where a contract is to do acts which can be performed, nothing but the act of God or of a public enemy or the interdiction is closed on account of epidemics if the teacher is ready to perform his part of the contract, unless the contract stipulates for a discontinuance by the board. In MCKAY V. BARNETT it was held that the arbitrary closing of the schools by the board of education during an epidemic of smallpox did not release the board nor change the obligation of the contract, although the contract stipulated to pay a certain wage "for the time actually occupied in school." This was construed as prohibiting the teacher from drawing a salary during vacation or during time of Inexcusable absence or temporary disability, and not to apply to such time as the school board might arbitrarily prevent a teacher from performing duties. In this case it was said that where a contract is to do acts which can be performed, nothing but the act of God or of a public enemy, or the interdiction of the law as the sole cause for failure, will excuse the perform ance. or This case is in accord with the general rule above stated. The exceptional cases are where the contract stipulates for deductions, where the school is closed on account of want of funds, and employment would be ultra vires. A Missouri case (Hall v. School Dist. No. 10, see infra II.) holds that the contract should be construed as made with reference to that particular building, and that the destruction of the building by fire prevents a recovery. But this case seems to stand alone, and is not supported by other authority. Where a school was closed for three weeks and four days by the committee, during which time the plaintiff, at their request, kept himself in readiness to teach, and at the end of that period resumed his work and taught during the rest of the school year, and the committee had closed the school because of the prevalence of diphtheria in the town, it was held that the town was not excused from paying the teacher's salary for the time when the school was thus suspended. Libby v. Douglas, 175 Mass. 128, 55 . E. 808. In this case the contract provided that the plaintiff should teach for ten months. and that the town should pay him $800, of which sum he was to receive $80 per month. It was no defense that he did not teach, because the failure was not due to his fault, but to the action of the committee. They might have stipulated that the teacher should have no compensation for such time as the school should be closed because of the prev-, alence of a contagious disease in the town. And the closing of a schoolhouse during the term by order of the board of health, on account Statement by Baskin, J.: In this case the plaintiff has made an original application to this court for a writ of of diphtheria, where the teacher's contract is for a certain number of weeks of service, will not prevent a recovery for the teacher's salary for the time the school was closed, as the nonperformance of the contract was not due to an act of God. School Town v. Gray. 10 Ind. App. 428, 37 N. E. 1059. In this case the court said: "There is no averment that the contagion still prevailed at the close of the term, or that the order of the health board continued in force thereafter. The custom of allowing teachers in the public schools to do this has grown to be such a common one that courts are bound to take judicial notice of the same. There is nothing in the contract before us which requires the teaching to be done on consecutive days, and, for aught that appears, the term may be extended a reasonable number of days, when necessary, until the contract has been fulfilled." Where a school was closed on account of an epidemic of smallpox after three months, but the teacher was notified to be ready to work when the schools were resumed and this might have occurred any day, no deduction can be made from her salary, although an ordinance required that teacher's services must be rendered before warrants are issued for the payment thereof. Randolph v. Sanders, 22 Tex. Civ. App. 331, 54 S. W. 621. In this case the court said: "Had the act of the closing of the schools been intended as permanent on January 6, 1899, or at any date afterward, plaintiff's right to compensation after such time would probably not have existed." And a school district is not released from liability on a contract where a teacher is prevented from performing the same by the closing of the school on account of smallpox, as an act of God which would release one from a contract must be one which renders the performance impossible. Dewey v. Union School Dist. 43 Mich. 480, 5 N. W. 646. In this case the court said: "The plaintiff continued ready to perform, but the district refused to open its houses and allow the attendance of pupils, and it thereby prevented performance by the plaintiff. Admitting that the circumstances justified the officers, yet there is no rule of justice which will entitle the district to visit its own misfortune upon the plaintiff. He was not at fault. He had no agency in bringing about the state of things which rendered it eminently prudent to dismiss the schools. It was the misfortune of the district, and the district, and not the plaintiff, ought to bear it." In Goodyear v. School Dist. No. 5, 17 Or. 517, 21 Pac. 664, the case of Dewey v. Union School Dist. 43 Mich. 480, 5 N. W. 646, was distin |