
    John A. Turley v. William C. Turley et al.
    H., by bis will executed in 1809, devised certain real estate in Ohio to F., an unmarried daughter, for life, and the remainder at her death to her child or children then living, and the descendants of those who might be dead, equally to be divided per stirpes. F. subsequently married, had thirteen children born, but at her decease left only ten children then living, one having previously died without issue, and two leaving issue. Held, that the devise to the children.of pre-deceased children is not in conflict with the statute “to restrict the entailment of real estate,” passed February 17, 1811 ; and that the “ immediate descendants ” to which by said act all devises are restricted, includes all to whom, under the statute of descents, an estate would have descended immediately from the particular person whose descendants they by the will are required to be.
    
      Reserved to the district court of Scioto county.
    This is a petition under the code for an equitable partition of a large tract of land in Scioto county, devised to the plaintiff and others by the last will and testament of George Harness, Jr., late of the State of Virginia, deceased.
    The plaintiff claims to be the owner of five undivided tenth parts thereof, in his own right and as grantee of four of his co-devisees, and that the remaining five tenths belonged to the defendants named in said petition.
    One of the defendants, in his answer, among other facts, avers that the respective shares of the several devisees named in said petition, to the lands therein specified, are only one twelfth part each, instead of one tenth each, as stated in the petition, and that one of the remaining twelfth parts belongs to James E. and Wilbur E. Cunningham, not made parties to said petition, in right of their deceased mother Catharine, a sister of the plaintiff; and that the other twelfth part belongs to Charles P. and George H. Johnson, also not parties to the petition, in right of their deceased mother Susan, another sister of the plaintiff; which said four last named persons had by their respective guardians filed their petition for a partition of the same premises in the proportions last named, against all the parties to the present suit, which suit is still pending. The principal controversy between the parties is as to the right of the children of Susan and Catharine, under the will of George Harness, Jr., to an estate in said lands.
    The cause was submitted to the district court of Scioto county upon the following agreed statement of facts :
    “ First. George Harness, Jr., in April, 1809, at Hardy county, Virginia, made his will, and on the 10th day of October, 1815, he made a codicil to said will; a copy of which will and codicil is hereto attached. And that on the 17th day of August, 1816, the said George Harness, Jr., departed this life, at said county of Hardy, where he resided, never having revoked said will. That said will was duly admitted to probate on the 4th day of October, 1816, in said county of -Hardy, and was also proved and admitted to probate in the ■county of Scioto and State of Ohio.
    “ Second. That at the time of making said will and codicil, the testator was seized and possessed of the lands and premises in dispute in this action, then commonly known as ‘ Rogers Bottom/
    “ Third. That at the time of making the said will, the testator had four children living, viz: George C. Harness, John G. Harness, Sally Harness and Fanny Harness, the said Fanny, before the death of the testator, intermarrying with Charles A. Turley.
    “ Fourth. That at the time of the death of the testator, the said Fanny and Charles A. Turley had by said marriage three children living, viz: George, Rebecca and John A. Turley ; that George died a minor, and without issue, in the lifetime of his mother, the said Fanny Turley.
    “ Fifth. That after the death of the testator, the said Charles A. and Fanny Turley had by said marriage ten other children, two of whom, viz : Catharine, who intermarried with Elijah Cunningham, and Susan, who intermarried with Oakly Johnson, died in the lifetime of their mother, the said Fanny Turley, leaving two children each, viz: James E. Cunningham and Wilbur F. Cunningham, and Charles P. Johnson and George H. Johnson, who are still living, and claim an interest in the land in controversy, in right of their deceased mother.
    “ Sixth. That in the lifetime of the said Fanny and Charles A. Turley, the said John A. Turley, the plaintiff in this action, entered into possession of the premises in dispute as a tenant of the said Charles A. and Fanny Turley, and continued to hold the same as such tenant at the death of the said Fanny Turley, which'took place on the 1st day of September, 1853, and since her death, without any' particular contract as to how the same was to be occupied, and that during his said occupancy he made the improvements set forth in the petition, and in the manner and under the circumstances therein stated.
    “ Seventh. It is further admitted that many years ago partition was made of the lands devised by the said George Harness, Jr., between the said George C.-Harness, John G. Harness, Sally Harness and Fanny Turley, in which partition the lands in controversy in this suit were assigned to the said Fanny, which partition has been adopted and acquiesced in by the children of the said Fanny since her death, as well as by the other parties in interest.
    “If the said James E. and Wilbur F. Cunningham and Charles P. and George H. Johnson, under the law, have an interest in said premises in right of their deceased mother or otherwise, it is admitted that partition is to be made in the proportions stated in defendants’ answer, but if they are not thus interested, partition is to be made in the proportions stated in the plaintiff’s petition.
    The land in controversy is covered by the following clause in said will:
    “ Item — All my other lands and real estate of every kind and description whatsoever, either in this State or elsewhere, not hereinbefore devised, to be equally divided between my said sons John G. Harness and George C. Harness, and my said daughters Sarah Harness and Fanny Harness, for and during their natural lives, subject to my wife’s estate for life, as aforesaid, and at either of their deaths, his or her share to his or her child or children living, and the descendants of those who may be dead, equally, to be divided per stirpes; if none living, then to the survivor or survivors of nay said children equally, to be divided to them and their heirs forever.”
    The question submitted to the district court was whether the children of Mrs. Cunningham and Mrs. Johnson were entitled under the will of George Harness, Jr., to the shares claimed by them respectively, and was thereupon reserved for decision here.
    
      W. A. HuteMns, for plaintiff.
    At the time of making the will, the said Fanny Turley was unmarried, but at the death of the testator, was married and had three children. She afterward had ten other children. among whom were the mothers of the children now claiming a.n interest in the premises.
    To say nothing of the two outstanding estates for life, the-children now claiming an interest, were at least one degree-beyond the limit of the statute. Neither they nor their mothers were in being, and consequently they must be excluded.
    
      1Reed &¡ Vanmeter, for defendants.
    
      A. G. Thurman, for James E. Cunningham and Wilbur F.. Cunningham, and Charles P. Johnson and George H. Johnson, made the following points :
    1. The word “ descendant,” in the “ act to restrict the entailment of real estate ” (S. & C.’s Stat. 550), means any person or persons upon whom a descent would be immediately cast by our statutes of descents, upon the death of any person or persons “ in being at the time of making such deed or will.” My clients above named come within this description. Fanny Turley, their grandmother, was a person in being when the will was made. When she died, they were among her “ descendants,” upon whom the statute of descents immediately cast all estate of inheritance of which she was seized. They were, therefore, “immediate descendants,” within the meaning of the act restricting entails, of a person in being (Fanny Turley, their grandmother), at the time the will was made; and consequently, the testator could well limit an estate to them. Statutes of Conn. 389, secs. 4 and 5; Hamilton v. Hempstead, 3 Day, 332, 339; Willis v. Olcott, Kirby, 118; Swan’s St., old ed. 999, sec. 47; S. & C.’s Stat. 1626, sec. 53.
    2. If the case falls within the operation of the rule in Shelley’s case, then Fanny Turley took a fee simple; and as she died intestate, my clients inherit from her, under the statutes of descent. McFeeley’s lessee v. Moore’s heirs, 5 Ohio Rep. 464; Armstrong v. Zane’s heirs, 12 Id. 287; King’s heirs v. King’s adm’r, Ib. 390; S. C. 15 Ib. 559; 2 T. R. 444; 2 Ves. Jr. 646; 7 T. R. 531; 19 Ves. Jr. 170; 4 M. & S. 362; 2 Ves. Jr. 225; 1 Bur. 38; 3 Brown’s P. C. 180; 1 East. 229; 12 Ohio Rep. 472.
    3. If Fanny Turley took an estate tail, and the rule in Shelley’s case does not apply, then, by force of the last clause of the act relating to entails, she being the first donee in tail, her issue took the fee simple. But the word “ issue ” includes grandchildren (whose parents are dead), as well as children and hence my clients take. 2 Jarman on Wills, 328; 6 Jac. Law. Dic. 165; 4 Kent. Com. 10, 11, 12; 1 Swift’s Dig. 78; 15 Pick. 104, 114; 3 Day, 332; 1 Dallas, 47; 1 Penn. 291; 5 Call. 439; 2 H. & J. 369; 2 U. S. Dig. 196, 197; 9 Conn. 127.
   Peck, J.

It is apparent, from the clause in the will of George Harness, Jr., copied into the statement of this case, that he thereby intended to devise, in the first instance, nothing more than a life estate to his four children; and it is equally apparent that, in case any of his said children should die leaving children, or remote descendants living at his or her decease, it was his intention that such living children, and the then living descendants of such as may have pre-decea.sed, should together take the estate. The words are, and at either of their (the testator’s children’s) deaths, his or her share (I devise) to his or her child or children (then) living, and the descendants of those who may be dead, equally, to be divided per stirpes.”

It appears from the agreed statement, that two of Mrs. Turley’s children, born after the making of the will — Catharine (Turley) Cunningham and Susan (Turley) Johnson — died before their mother, each leaving two children, who were living when Mrs. Turley died, and it is obvious that if the declared intent of the testator is to prevail, these great-grandchildren of the testator, upon the decease of Mrs. Turley, took the portions of the estate devised, which their respective mothers would have taken if they had survived her.

It is said, hoAvever, that this plain and obvious intent of the testator, that upon the death of his daughter, Fanny, her portion of the estate should, in a certain event, pass to the living descendants of her children born after the will was made and dying during her lifetime, can not be carried out because it is in direct conflict with the “ act to restrict the entailment of real estate,” passed February 17, 1811 (Swan & Critchfield”s Stat. 550), which reads as follows :

“ That from and after the taking effect of this act, no estate in fee simple, fee tail, or any lesser estate in lands or tenements, lying within this State, shall be given or granted, by deed or will, to any person or persons, but such as are in being, or to the immediate issue or descendants of such as are in being, at the time of making such deed or will; and that all estates given in tail, shall be and remain an absolute estate in fee simple, in the issue of the first donee in tail.”

What is to be understood by the terms, “ immediate issue,” and “ immediate descendants,” as employed in the above recited act ?

The counsel for the plaintiff insists that both terms indicate only one and the same class of persons, that is, living children of Mrs. Turley, and that neither include living children of her pre-deceased children.

The presumption always is, that every word in a statute is designed to have some effect, and hence the rule that, “in putting a construction upon any statute, every part shall be regarded, and it shall be so expounded, if practicable, as to give some effect to every part of it. Commonwealth v. Alger, 7 Cushing, 89.

The word “ issue,” without the qualifying word, “ immediate,” would, undoubtedly, include grandchildren and great-grandchildren of the person to whose issue the bequest is made. 2 Williams on Ex. 252; 2 Jarman on Wills, 255, note. But we incline to the opinion that the qualifying word, “ immediate,” prefixed to it in the clause referred to, limits the phrase to the children merely of the person in being, etc.; and we do this the more readily, as we are satisfied that the remoter lineal descendants, if living at the death of the person in being when ‘ the will was. made, are included in the phrase, “ immediate descendants.”

In order to determine whether the words, “ issue,” and “ descendants,” used in the act, refer only to one and the same, class of persons, or whether the one is more extensive than the other, we may very properly look to the entire law and its title, as well as the mischief or defect it was designed to remedy; and also to the other statutes in relation to the inheritance and transmission of estates.

As it was said by Lord Ch. J. Tindall, in the dukedom of Sussex case, 8 Lond. Jur. 795, “ If any doubts arise from the language employed by the legislature, it has always been held as a safe means of collecting the intention, to call in aid the ground and cause of malcing the statute, and to have recourse to the preamble, which, according to Chief Justice Dyer, is a key to open the minds of the makers of the act, and the mischiefs they intended to redress.” Sedgwick on Stat. Law, 289.

The statute is a restraining, and not an enabling act. The power to devise real and personal estate, with the formula to be observed and the legitimate subjects of a testamentary disposition, are all defined and prescribed in the general act “ relating to wills,” and cognate enactments, and the only object of the act of February 17, 1811, was to prevent the creation of perpetuities and impolitic clogs upon the jus disponendi of real estate. To this end, it prohibits a devise of an interest in land to any one but a person or persons in being a.t the time of making the will, or to the immediate issue or descendants of such persons. It does not affect to define, and much less to alter, the rules of inheritance or descent. The will of George Harness, Jr., viewed in the light of the statute of descents, is nothing more than a devise to Fanny Harness for life, with remainder in fee to her heirs at law. It is “ to her for life, and at her death to her child or children then living, and the descendants of such as may be dead, equally, to be divided per stirpes.” If this will tends to create a perpetuity, the statute of descents is alike obnoxious to the charge, and in conflict with the act of February 17,1811.

The devise of George Harness, Jr., then, of the remainder upon the death of his daughter, to the living descendants of such as had pre-deceased, created no greater perpetuity than ■the general act “ regulating descents and distributions ” itself authorized, and is not therefore within the evils which the act •of February 17, 1811, was intended to remedy.

But there is a plain and broad distinction between the terms “ children” and “ descendants,” the one indicating only lineal descendants, while the other includes both lineal and collateral relations — all, in short, that would then take the estate under the statute of descents, if George Harness had died intestate. All such persons may not be in fact, but they are in law, the descendants of the person from whom they receive the estate. Upon the same principle, it has repeatedly been held in Ohio, that the term “ ancestor,” as used in the statute of descents and distribution, means him from whom the estate was inherited — whether father, uncle, nephew, younger or elder brother, and the like. Lessee of Pritchett v. Parker, 3 Ohio St. Rep. 397; Brewster v. Benedict, 14 Ohio Rep. 385. So a devise “to my relations,” is in construction limited to such relations as would be entitled to take under the statute of distributions. 5 Yesey, 529; 2 Williams Ex. 956, and cases cited. The superadded word “ immediate,” merely requires that the person entitled to take must be one to whom, in case of intestacy, the estate would immediately descend, and this a statute designed to prevent perpetuity should very properly require. If the terms had been used disjunctively, and the superadded words “ of those who may be dead, equally, to be divided per stirpes,” omitted, the word descendants ” might possibly have been regarded as substitutional, and as such not entitled to take except upon a failure of living children ; but we think the intention of the testator clear and incontrovertible, that the children of Mrs. Cunningham and Mrs. Johnson are to take the shares of the lands embraced in ■the petition, which their respective mothers would have taken if they had survived Mrs. Turley, and that the devise to them is not in conflict with the act to restrain the entailment of real estate. The devise is in perfect harmony with the statute and with the principles of public policy which gave rise to it Immediately upon the termination of the life estate. the entire inheritance is thereby cast upon persons in full life, and legally capable of receiving and transmitting the same.

This view of the case renders it unnecessary to examine the other point made by the counsel for the defendant, viz.: that the rule in Shelley’s case is applicable to this devise, it having been made long before the statutory abrogation of that rule, in A. D. 1840, and that Mrs. Turley, under that rule, became and was the first donee in tail of the estate, so that by the operation of the' last clause of the act of February 17, 1811, the same became an absolute estate in fee simple in her “ issue ” generally, including in that term the children of Mrs. Cunningham and Mrs. Johnson.. The rule in Shelley’s case is at best an artificial one, which in its practical application often defeats the real intention of the testator, and would not be applied in the country from which it was borrowed to a case like the present, where a life estate is expressly given, and the remainder limited to the "children,” and not to the “ heirs.” It is true that the law of primogeniture, which prevents its application in England to a devise to children, does not obtain here; but the rule itself finds but little favor in this country, and ought not to be extended. In King v. Beck, 15 Ohio Rep. 559, it was held that a devise to C. for life, with remainder to his heirs in fee, did not create a fee in C., because it was inferred from the will that' the testator intended he should take no more than a life estate. If the rule in Shelley’s case, thus modified, were applied to the devise to Fanny Harness, she would not, in our opinion, take an estate tail, but only a life estate. The express devise to her for life, and the employment of descriptive words, which • are peculiarly words of purchase and not of limitation, to indicate the recipients of the fee, added to the special reference made to the descendants of pre-deceased children, clearly evince an intention on the part of the testator to create a life estate only in his daughter, and to make the children and their descendants the primary donees of the remainder in fee. We are, therefore, of the opinion that the children of Mrs. Cunningham and Mrs. Johnson named in the agreed case, are entitled, under the will of George Harness, Jr., to the shares in the lands specified in the petition, to which their respective mothers would have been entitled if they had survived Mrs. Turley; and the cause is therefore remanded to the district court of Scioto county for further proceedings in accordance with the construction we have given of the will of George Harness, Jr., deceased.

Brinkerhoee, C.J., and Scott, . Sutliee and Gholson, JJ., concurred.  