die without issue

A phrase common in testamentary gifts, appearing in the form of "to A, but if he dies without issue, then to B," and presenting the ques- tion of construction as between a definite and an indefinite failure of issue, the interpretation whereby the testator is taken to have meant the death of A without surviving issue being termed the "definite failure" construction and the interpretation whereby the testator is taken to have meant the death without surviving issue of A's last descendant, whenever that might be, being called the "indefinite failure" construction. While at common law, the "indefinite failure" construction was preferred, the "definite failure" construction was made mandatory in England by statute in 1837, in the absence of a clear testatorial intention to the contrary. In the United States, in the absence of statute, there are two lines of authority, one upholding and one rejecting the common-law rule. In many states, statutes have been enacted requiring the adoption of the "definite failure" construction in the absence of any clear expression of a contrary intention. 57 Am J1st Wills § 1238. The words "die without issue," and other expressions of the same import, mean an indefinite failure of issue. At common law, in the absence of words making a different intent apparent, the established interpretation of such expressions in a will is that they import a general indefinite failure of issue, and not a failure at the death of the first taker. Parkhurst v Harrower, 142 Pa 432, 21 A 826.