Definition
"Sue surviving them" is an archaic phrase appearing in wills and deeds of conveyance, used as a variant of — or shorthand for — the fuller expression "die leaving no lawful issue surviving them." In context, the phrase operates as a defeasance condition: it determines whether a gift over, executory devise, or remainder interest takes effect based on whether the primary beneficiary leaves living descendants at a specified point in time, typically at the beneficiary's death or at the close of a preceding life estate.
The critical interpretive question the phrase raises is whether it signals a definite or indefinite failure of issue. A definite failure of issue occurs at a specific, ascertainable moment — usually the death of the named person. An indefinite failure of issue refers to the exhaustion of an entire line of descent, without regard to any fixed time. The distinction carries significant consequences: an indefinite failure of issue construction historically supported a fee tail or a fee simple conditional at common law, while a definite failure of issue construction supports a fee simple subject to an executory limitation or a contingent remainder.
Why It Matters in Research
Researchers working with deed records, probate files, or reported appellate cases from the nineteenth and early twentieth centuries will encounter this phrase and its variants scattered through instruments creating successive interests in real property. The interpretive stakes are high: the same words, read differently, can produce opposite outcomes on title.
The primary trap is chronological. Courts before the mid-nineteenth century were more inclined to read "surviving them" language as pointing to an indefinite failure of issue, which aligned with common-law presumptions favoring the fee tail. As fee tail was abolished by statute in most American jurisdictions and as courts moved toward definite failure of issue constructions to avoid intestacy and perpetuities problems, the same language came to be read as referring to a fixed moment — ordinarily, the death of the devisee or the close of a prior life estate. A case decided in 1839 and a case decided in 1909 construing identical language may reach opposite results without either court being wrong within its own temporal and jurisdictional context.
The Kentucky authority referenced in Bouvier illustrates the post-reform interpretive posture: the court treated the phrase as referring to the child's or children's death before the termination of the life estate — a specific, bounded moment — rather than to extinction of all issue at any future time. This reading avoids the fee tail inference and keeps the interest within the category of executory devise or contingent remainder.
Corpus researchers should also attend to the relationship between this phrase and companion language in the same instrument. "Sue surviving them" rarely appears in isolation; it is almost always embedded in a clause that also names a gift-over beneficiary. The identity of that secondary taker, and whether they are described as heirs, residuary legatees, or named individuals, can confirm or complicate which reading of the survival language the drafter likely intended.
Historical Dictionary Support
Bouvier's treatment is brief but directionally clear. By citing to 131 Ky. 609, Bouvier anchors the entry in the definite failure of issue camp: the phrase "did not purport an indefinite failure of issue, but referred to the child's or children's death before the termination of the life estate." This is consistent with the general trend in American equity and probate practice away from indefinite failure constructions after fee tail abolition.
Bouvier does not discuss the common-law baseline from which this interpretation departs, nor does it flag the significant jurisdictional variability in how American courts handled the definite/indefinite failure dichotomy during the same period. Historical researchers should treat the Bouvier entry as reflecting one strand of American doctrine — a late and reforming strand — rather than a universal rule. English authorities and earlier American cases in states that were slower to abolish fee tail may point the opposite direction on identical language.
Jurisdictional Note
The definite versus indefinite failure of issue question was resolved differently across jurisdictions, and in some states by statute rather than judicial construction. States that retained fee tail longer, or that had specific saving clauses in their fee tail abolition acts, may have different default rules for construing this language. The Kentucky construction in Bouvier is not representative of all American jurisdictions, particularly for instruments executed before the mid-nineteenth century.