
    
      Den on the demise of Stith's heirs v. Barnes.
    
    This was an ejectment brought to recover a tract of land, claimed by the plaintiffs under the will of their uncle M'Kinnie Long; the materialclauses of which are as follow. “ I give and bequeath to the children of G. W. Long, provided he has any, if not, to the heirs of my sister Stith, the land which lies between the road, &c.” Item. My brothers Richard and George Long are to pay out of the bequests I have made them, what debts I may owe.” To his brother “ Richard he had previously devised a tract of land. The jury found, in a Special Verdict, that G. W. Long died before this suit was brought, without ever having had a child ; that the testator’s sister Stith is still alive, and that she, as well as her children, the lessors of the plaintiff, lived in the same neighborhood with the testator, who saw them almost daily ; that the lessors of the plaintiffs are the only children Mrs. Stith had, either at the making of the will or at the death of the testator.
    On the trial of the cause in Halifax Superior Court, the introduction of parol evidence was objected to, by which the knowledge of the testator, as to his sister Stith being alive, was proved to the jury. The admissibility of such testimony was one of the questions submitted to the Court.
    The case was here argued by Browne and Drew for the plaintiffs, and Daniel for the defendant.
   Seawell, J.

In the argument which was made in this case for the defendant, it was contended that George W. Long took an estate for life, by implication, on account of his being directed to pay the testator’s debts “ out of the bequest made to him and that the limitation immediately to his children, made it an estate tail, which by the act of 1784, became a fee simple.

Whether such effect resulted from the devise, or not, Seems not material to consider. If such was the effect of the devise, it would then become necessary to enquire how the ulterior limitatition would thereby be affected : for if by force of our act of Assembly of 1784, words, which before the act, gave an estate tail, are since made to pass a fee simple, why should riot the ulterior limitation, upon an event which must take place during the life of George, be good, by way of executory devise ? Upon this part of the case, however, no opinion is intended to be given, as we are all of opinion, the plaintiffs have no title. Nor does it, in my view, become important to decide the point in relation to the parol evidence ; for if the testator had expressly mentioned in the will, that his sister Stith was alive, and had given her a legacy, such circumstance could have had no influence, and I should then be equally clear, the plaintiffs could not recover.

In construing a will, the intention of the testator is the material object, and this intention is to be collected, in the first place, from what he has declared, by giving to the expressions used their true import, as understood in law. But as words are only the medium by which the intention is to be conveyed, they will never be permitted to stand in the way, when their import would pervert, instead of perform what they were intended for. Therefore, if it should appear from the will of M’Kinnie Long, that he intended the children of Mrs. Stith to take immediately on the death of George without children, though their mother should be living, such intent must necessarily control the meaning of the word “ heirs,” and therefore it could not be understood according to its technical meaning. It would then be evident the testator intended heir apparent or issue ; but if no such intention can be collected from any part of the will, or from the fact found, then we can only look for the meaning of the testator from the words he has used, and must take that to be his intention which his words import.

In the present case, the testator has used the expression “ heirs,” which is a word of legal import, and means those who shall have succeeded to the real estate of another by inheritance. Now, until it shall be shown that the testator did not understand the term he has employed, either by a reference to the Whole will, or from the fact found, he must be understood to have meant what he has said.

From the Will, it is not pretended that any such inference is drawn; but it is contended that the fact of his knowing his sister then to be alive, as found, will have that effect.

I can draw no such conclusion. The devise to the heirs of Mrs. Stith, is not of that kind or description, which though the enjoyment is deferred, is to vest immediately; if it were, the testator’s knowledge of her being alive, would then show that he did not understand the meaning of the word he had used, as “ nemo est heirs viventis." His intention then would be manifestly frustrated, by allowing to his words their true meaning.

It has, however, been contended, that whenever the testator takes notice the ancestor is living, a devise to the heirs of such ancestor, is to be considered as to his heirs apparent ; and the cases of Long v. Beaumont, 1 P. Wms. 229, and Den ex Demise, Brooking v. White, 2 Black. Rep. 1010, are cited as authorities.

If those cases proved that there was such a stubborn rule of law, I should certainly hesitate before I would decide otherwise. But they prove no such rule. They only determine, that when it appears from the will that the testator intended the devisees estate should vest immediately, though Such devisees are called heirs, yet the estate shall go according to the intent of the testator, and by the word heirs, will he intended heirs apparent, if their ancestors be then living.

The case of Long v. Beaumont is shortly this : The testator devises to trustees for 21 years, remainder to the first son of his own body, and his heirs male, and in default to the heirs of the testator’s body, and in default of such heirs, to his cousin John Spark for 99 years, remainder to his first son in tail male, and in default of such issue, to the heirs male of his aunt Elizabeth Long, and in default of such issue to his own right heirs. Beaumont, the defendant, was then heir apparent of the testator, and there was a devise of an annuity to him. The testator, in his will, took notice that his aunt, Elizabeth Long, was alive by devising her also a legacy. Now, this case only proves (what has not been doubted, in the examination of the case under consideration) that technical expressions are to bend to the intent of the testator; or in the language of Lord Coke, that the barbarous language of the testator is to be so moulded as to effectuate his intention.

The case cited, is that of a vested remainder in tail, to the heirs of the aunt of the testator, with remainder in fee to the heir at law, in default of such issue. I have said a vested remainder, because the estate was not liable to be defeated by any event, unless the limitation to the heirs of a person then alive made it contingent; and the Court determined that there was sufficient upon the face of the will to discover that the testator did intend those he called “ heirs” should take whilst their ancestor was living.

The estate, therefore, vested at the death of the testator, though the enjoyment was postponed.

In deciding that case, the Court has determined that the word “ heirs” may be made to mean children, issue, or heirs apparent, according to the intent of the testator, and as, in that case, the testator had postponed the heir at law, the then, plaintiff, till the issue of his aunt was exhausted, the devise to the “ heirs” of the aunt must be understood issue; for indeed no one else could take the estate. In aid of that construction, the testator’s knowledge that his aunt was then alive, was relied on as a circumstance. The Court also laid hold of the words lawfully begotten, as connected with the heirs of the aunt, which they said was equivalent to heirs then living.

The case from Blackstone, was where the testator devised to his wife an annuity for 80 years, charged upon the premises — and after her death, an annuity of 40s. per annum to each of his daughters, Elizabeth, Mary and Ann, for, the same period, if they, respectively, live so long; and to her daughter Margaret, the defendant, an annuity for 70 years, if she and the testator’s son, Richard, should, jointly, live so long, Subject to the said annuities, he devised the premises to Margaret for two years from and after his decease, with remainder to his son Richard, if then living, for 99 years, if he lived so long; and subject to such 99 years term, he devised the same to his son Richard and his heirs male, and to the heirs of Margaret, jointly and equally, and to their heirs and assigns ; and for want of heir male of the body of Richard, at his death, he devised the premises charged, &c. to the heirs and assigns of Margaret, lawfully begotten, to hold to the heirs and assigns of the said Margaret,

Margaret had a son at the testator’s death. Richard died leaving a son, living Margaret, and the contest was between the heir of Richard, and the children of Margaret, who claimed to take under the appellation of heirs of Margaret.

In that case, De Grey, Ch. Justice, said, “ the intention of the testator is clear, that the same favor should be extended to the heirs of Margaret as to the heirs male of Richard. He took notice that his daughter was living, by leaving her a term and a subsequent annuity ; and he meant a present interest should vest in her heir, that is, her heir apparent during her life.”

Blackstone thought that the testator’s varying the tenure of Margaret’s annuity from that of the other sisters, by making hers dependant on the joint lives of herself and Richard, was proof that the testator had calculated Margaret might survive Richard, and therefore, as on Richard’s death, the estate was to go to his heirs male and the heirs of Margaret, and at a time when the testator calculated Margaret might be living, the word“ heirs” must be understood issue.

These cases,need only be stated, to shew their want of application to the one now under consideration. Was any present, vested estate, devised to the heirs of Mrs. Stith, which they were to take on the death of the testator, though the enjoyment was deferred ? To make the most of their case, it was only an executory devise of the fee simple, after the previous fee to the children of George. During the lifetime of George nothing ever passed to the heirs of Mrs. Stith, nor was it intended by the testator. If George should have, children, the estate became vested in them, without a possibility on the part of the plaintiffs. From no part of the will, is it to be collected, that it was the intention of the testator, the heirs of Mrs. Stith should take the estate though she might be alive. Nor can we ascertain, like the case in Pr. Williams, that upon the death of George, without children, the estate was not to go over until a failure of Mrs. Stith’s issue. What influence, then, can the facts found have in expounding the intention of the testator? Can it be inferred from any part of the will, that the testator had calculated that Mrs. Stith might be alive, when her heirs were to take ? In short, does it appear that the intention of the testator will be frustrated by understanding him to have intended what he has said ? It does not. And it is not in the power of human ingenuity to discover, from reading over the will, and the facts found, that the testatator did not mean the heirs of Mrs. Stith, namely, those who should succeed to her real estate, after her death, were those intended to be benefited by the devise, There is no ground to make such inference from the situation of the parties, as in any event, the devise to the heirs of Mrs. Stith was never to vest till George’s death, without having had issue, and by George having children, to be effectually prevented. The testator, therefore, might have calculated upon George’s surviving his sister Stith.

In whatever way, therefore, I am capable of considering this question, it seems to me there is no ground to doubt. Mr. Powell, in his excellent treatise on devises, page 567, says, “ It is necessary to the constitution of a devise, that there be a devisee, certain, or capable of being made, &c. and the law, therefore, requires every one claiming in that character, to answer in all respects to the description the devisor has given.” And, in page 369, upon the same subject, he continues, “ Whenever a testator describes his devisee, as heir of one generally, none can take under that description unless he fully answers it in all particulars ; from whence, it follows, that none can take, as such, during the life of his ancestor, for “ nemo est haves viventis.” The author then, by way of illustration, puts the case. “ One having two sons and two daughters, devised his lands to his youngest son, in tail, and for want of such issue to the heirs of the body of his eldest son, and if he died without issue, that the land should remain to his two daughters, in fee. The testator died ; the youngest son died without issue, leaving the eldest, who had issue, and it was held by the whole Court he could not take.” But the same author, after citing divers other cases decided upon the same principle, remarks : “ But if the testator clearly show, by positive words, or if It must be necessarily inferred from facts, that he meant one to take by the description of & particular heir, who was not general heir, that intent shall be carried into execution.” Under which description, the cases from Pr. Williams and Blackstone, are noticed.

Independently , therefore, of the conviction of my own understanding, the opinion I entertain, is supported, as I conceive, by all the adjudged cases and elementary writers I have had an opportunity to examine.

Wherefore, I am of opinion, there should be judgment for the defendant.

Taylor, C. J.

I would willingly avail myself of any expressions in the will, manifesting the testator’s intent to use the word " heirs” in a different sense from that affixed to it by the law. So far the authorities allow us to go; but in all the cases cited for the plaintiff, and none more in point can be found, such intent was collected from the will itself Parol evidence has never been resorted to ; it was offered in the case in Leonard 70, but rejected by the Court.

Judgment for the defendant. 
      
       Judges Hall and Henderson gave no opinion in this case.
     