What is DYING WITHOUT ISSUE? Definition of DYING WITHOUT ISSUE in Black's Law Dictionary – Legal dictionary – Glossary of legal terms.
At common law this phrase imports an indefinite failure of issue, and not a dying without issue surviving at the time of the death of the first taker. But this rule has been changed in some of the states, by statute or decisions, and in England by St. 7 Wm. IV, and 1 ict. c. 26, § 29.
The words "die without issue," and "die without leaving issue," in a devise of real estate, import an indefinite failure of issue, and not the failure of issue at the death of the first taker. And no distinction is to be made between the words "without issue" and "without leaving issue." Harwell v. Harwell, 151 Tenn. 587, 271 S.W. 353, 355.
In Connecticut and other states it has been repeatedly held that the expression "dying without issue," and like expressions, have reference to the time of the death of the party, and not to an indefinite failure of issue. Phelps v. Phelps, 55 Conn. 359, 11 A. 596; Briggs v. Hopkins, 103 Ohio St. 321, 132 N.E. 843.
Dying without children imports not a failure of issue at any indefinite future period, but a leaving no children at the death of the legatee. Condict v. King, 13 N.J.Eq. 375. The law favors vesting of estates, and limitation such as "dying without issue," refers to a definite period, fixed in will, rather than to an indefinite failure of issue. Howard v. Howard's Trustee, 212 Ky. 847, 280 S.W. 156, 157. Where context is such as to show clearly that testator intended the phrase "die without issue" to mean that, if first taker die without issue during life of testator, the second taker shall stand in his place and prevent a lapse, the words "die without issue" are taken to mean death during life of testator. Martin v. Raff, 114 Ind.App. 507, 52 N.E.2d 839, 845.
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