
    Lessee of John Sword against Patience Adams.
    Devise to M. her heirs and assigns, and M. dies in testatrix’s life time, leaving an infant son, the devise is lapsed and void, though testatrix was assured that the son would take, by one interested in the estate.
    Parol evidence of the intentions of testatrix in such case, not admissible.
    
      Ejectment for a house and lot of ground in the city of Philadelphia.
    It was admitted, that Penelope Haley died seized of the premises in question in 1793, leaving issue three daughters: 1st, Margaret, who intermarried with-Currie, and had issue by him one son named William, and afterwards intermarried with George Craige, by whom she had another son named Archibald. 2d, Mary, who intermarried with-Thompson, and had issue by him a daughter named Mary, who intermarried with-Sproat, and by him had issue a son named James, now of tender years. 3d, Penelope, who intermarried with William Sword, by whom she had issue John, the lessor of the plaintiff; and Anne, who intermarried with Dr. Nathaniel Dorsey. Margaret Craige the daughter, and Mary Sproat the grand-daughter, died in October 1793, shortly before the said Penelope Haley.
    The lessor of the plaintiff claimed two thirds of one third of the premises, equal to two ninth parts thereof, on the ground of his grand-mother’s dying seized thereof intestate.
    The said Penelope Haley made a will, dated 10th February 1792, whereby she devised to her daughter Margaret Craige, a house and lot in Pewterplatter alley, during her life, and after her death to her grand-son William Currie, his heirs and assigns ; but if he should not return from beyond seas, nor be living at his mother’s death, then to her grand-daughter Mary Thompson, her heirs and assigns. She then devised as follows ; to her said grand-daughter Mary Thompson, her heirs and assigns, a house and lot on Cherry street, (being the premises in question;) to her daughter Penelope Sword 450I. in public securities ; to her grand-daughter Ann Dorsey iool. ; to her grand-son John Sword iool.; to her grand-son William Currie iool. ; but if he shall be dead at the time of her decease, then to her grand-son Archibald Craige ; to her said grand-daughter Mary Thompson, her household goods and kitchen furniture; to her step-sister Margaret *35] *Petticrew 12I. yearly, during her life; to Robert Green and Jacob Green iol. each; to her executors Ashbel Green and Robert Ralston iol., for the poor widows of the Second Presbyterian church of Philadelphia, and 5I. for building a wall round the burial ground of the said church; to her said granddaughter Mary Thompson, all the rest of Hugh Ferguson’s bond, for the use of a negro slave named Amy; and to her two daughters, Margaret Craige and Penelope Sword aforesaid, and her said grand-daughter Mary Thompson, and their heirs and assigns, all the rest of her estate, real and personal, equally to be divided between them, as tenants in common.
    On the 17th October 1793, the said Penelope Haley made and annexed a codicil to her will, reciting the death of her daughter, the said Margaret Craige, and thereby devised to her said grand-daughter Ann Dorsey, her heirs and assigns, the said house and lot in Pewterplatter alley, revoking such parts of her will as were contrary thereto, and confirming the residue.
    Mr. Ingersoll for the defendant,
    opened his case as follows. The descendants of the testatrix were swept off in quick succession, by the ravages of the yellow fever in 1793. She herself fell a victim to it. She first heard of the death of her daughter Margaret Craige, and made her codicil, providing for that event. When the afflicting news of the death of her grand-daughter Mary Thompson, reached her, she was desirous of providing for that event also, and to make a second codicil, but was prevented by Dr. Nathaniel Dorsey, who was married to the sister of the lessor of the plaintiff, and of course in case his wife’s grand-mother died intestate, as to any part of her estate, became entitled to one undivided ninth part thereof, in right of his wife. He informed her, (though without any ill design,) that as she had devised to her said grand-daughter Mary Thompson, her heirs and assigns, that her son James must necessarily inherit the same, and that he completely answered the description of her heir. With these assurances her mind was quieted, and she prepared for death, without making any further alteration in her will.
    In addition to this parol testimony, the nuncupative will of Penelope Haley, proved on the 21st August 1794, by two witnesses, establishes her intention beyond all question. Elizabeth Kerr has deposed, that she heard the testatrix, a few days before her decease, repeatedly declare, that “ she intended to give “ her house in Pewterplatter alley to Mr. Dorsey, and the house “ she lived in, to the child of her grand-daughter Sproat, in case “her said grand-daughter died;” and Olive Sproat proves the “*same expressions in substance, and that she further ,- “ said, that the house she lived in, and what was in it, <- 3 “and a great deal more, was secured to her grand-daughter “Mary and her child.” Both witnesses were requested to bear testimony of what she had said.
    Mr. E. Tilghman for the plaintiff
    opposed the parol testimony. It is well known that to pass lands by will, the same must be in writing, and a nuncupative will cannot have that effect. The operation of the will must rest on the instrument itself, and the intention of the testatrix can only be collected from the words contained in it.
    • Nothing can be better established, than that if there be a devise to A and his heirs, and A dies in the life time of the de-visor, the devise is void. 4 Term Rep. 603. And in the case of Turner’s et al. lessee v. Kett, lb. 601, where A devised to B, and the heirs of her body, and for default of such issue, then over; B died in the life time of A, and then A, by a codicil, confirmed his will; it was adjudged, that the heir of B took nothing, though it appeared that A knew of the death of B, and of the birth of her son, before he made the codicil.
    
      Cited in 2 W. & S. 453.
    Cited in 104 Pa. 348 to show that the fact that a testator knew that two of his legatees were dead when he made his will, and intended the legacies to go to their children, can make no difference unless he has expressed his intention in his will.
   By the Court.

We cannot receive the parol evidence which has been offered, consistently with our duty, whatever may be our own personal feelings as men. The case is perfectly clear at law, however hard it may bear on the infant, James Sproat. Private inconvenience must give way to the safety and security which must be the result of general principles, long settled and sanctified. We have no hesitation in saying that the plaintiff is entitled to a verdict. A case presented itself to us during the last vacation, which afforded us the occasion of considering this subject fully. Having discharged our office as judges, we cannot, as men, avoid strongly recommending to the lessor of the plaintiff, to carry the real intentions of his grand-mother into full execution.

The jurors subscribed a strong recommendation to captain John Sword, to the same effect, at the bar, and immediately gave a verdict for the plaintiff.  