I. In law, used in deeds and wills to signify descendants. When employed in a deed, the term has a definite meaning. It is always construed to be a word of purchase, designating persons in being, and vesting in each of them an original interest. It cannot be a word of limitation, for that would confer on issue, whether in being or not, derivative interests devolved upon them through descent from the original taker; and such estates of inheritance can be created in deeds only by the word heirs. We have used the word purchase in its technical sense. In law, all estates are acquired either by purchase or by descent; and it therefore follows that all estates not acquired by descent or by inheritance are acquired by purchase. - The construction of the word issue in wills has involved much uncertainty and difficulty; for it is a term of the most extensive import. It may embrace all descendants to the remotest degree, or may be limited to immediate descendants, or confined to some particular class of descendants living at a given time. Of the rules of construction established by the discussion of this perhaps most vexed question in the whole range of legal learning, it must suffice to' state only the most general. In a will, issue may be regarded as a word either of limitation or of purchase.
If real estate be devised either directly to, or by way of executed trust for, a "person and his issue," the word is here taken to be one of limitation; and it confers on the devisee an estate tail. Yet if it clearly appear from any expressions in the will that the testator did not intend to give such an estate, or that by issue he meant children, or any particular class of descendants, then the word will be construed as a word of purchase; and it will then comprise all who can claim as descendants from him to whose issue the bequest is made. - The different phrases which express default of issue have been the subjects of frequent and very nice construction. The failure of issue may be what is called a definite failure, when the will fixes a definite time for such failure, as if the devisee die " without issue living at the time of his death;" or it may be indefinite, when no period is fixed, but the contingency continues so long as the devisee has any descendants. A limitation over after a definite failure of issue is good; but not upon an indefinite failure, for the contingency is too remote. In the case therefore of a devise to A in fee, with remainder to another upon A's death without issue, the limitation over is void, and A's estate in fee is reduced to an estate tail.
This is the general rule of the common law, though in the United States the courts seek to evade its authority, and often avail themselves of slight circumstances to support the executory devise. They have done so when the limitation was to the brother of A if the latter died without children; or to "survivors" when either of several devisees should die " without issue alive," or "without lawful issue." In many of the states much of the difficulty is obviated by express statutory enactments. The American cases generally follow the English common law rule in regard to limitations over upon the bequest of chattels; and, by confining the expression "without issue" to issue living at the death of the first taker, support executory devises. II. In pleading, the point or matter in contest between the parties to a suit. When in the course of their alternate pleadings the parties have reached a specific matter which one of them affirms but the other denies, they are said to be at issue, or, in the ancient language of the law, ad, exitum, or at the end of their pleadings. An issue may be either of law or of fact.
When a defendant demurs to the plaintiff's allegation, that is, denies its sufficiency as matter of law to support the plaintiff's action, he is said to tender an issue in law, and the other party is compelled to accept it. But if the defendant traverse the plaintiff's fact and propose to refer the matter disputed to some mode of trial, he tenders an issue of fact. The plaintiff may demur to the traverse or may join issue; indeed, he must do so when the issue is well tendered. An issue of fact is properly framed upon a direct negation or denial of an averment. As the object is to reach the precise and essential subject for decision, the pleadings should develop some matter either of law or fact which, when decided, shall dispose of the whole controversy. They must therefore be directed not merely to the production of an issue, but to the production of one which is material. For issue joined upon an immaterial point, that is, a point not decisive of the right of the case, is fatally defective, and judgment upon any verdict found will be arrested by the court.
Further, as in respect to any single subject of suit the decision of one material point may decide the action, it has become a rule that the pleadings shall tend not only to materiality, but also to singleness in the issue; in other words, no plea may allege several distinct matters, when any one of these would singly support the action. Finally, this single material issue must be so particular in its character as to point out distinctly the nature of the matter in controversy. Upon the declaration the parties may join general or special issue; issues joined on later pleadings in the suit are called simply issues without other description. The general issue denies all the material allegations in the declaration, or rather it enables the defendant to demand proof of all of them. A special issue, properly speaking, is the denial of one of several substantive facts which are essential to the right of action. A traverse of one essential point is plainly as complete a denial of the plaintiff's right of recovery, as the traverse of his whole declaration by a general issue could be.
The legislation both in England and the United States has for some time been in the direction of requiring the specific fact in controversy to be put plainly in issue by the pleadings. - Feigned issues are sometimes framed in chancery for the purpose of submitting disputed questions of fact to the ordinary modes of trial at law. Thus, if it be contested whether A is the heir of B, the fact will be sent to be tried in a law court upon a fictitious suit. For example, one party may declare that he wagered with another that B was the heir of A; he then avers that he is so, and demands the wager. The defendant admits the wager, but avers in reply that B is not the heir of A. Upon these allegations issue is joined, and the fact is decided in the usual modes. Feigned issues may also be employed by suitors in courts of law for determining a single point expeditiously.