
    Elizabeth Bunnell v. Harriet V. Evans et al.
    Where a testator made a devise to his son John “through his natural life and then to his heirs,” and in another part .of the will used the word “heirs” in the sense of “children”—Held, that the son took a life estate only, with remainder to his children, or issue, and not to his heirs generally, and that upon his death without issue, the devise in remainder failed, and the estate reverted to the heirs of the testator.
    Motion for leave to file a petition in error to the District Court of Warren county.
    
      John Bunnell died in 1862, leaving a will by which he-devised certain real estate to his son John Milton Bunnell “through his natural life, and then to his heirs.” The will contains various other devises and bequests among his-children and others, and at the end of them is a provision, that if any of the “ above-mentioued heirs shall bring in an account against the estate for labor or services, his share of the estate shall become forfeited, and be distributed among the testator’s remaining children”—seeming to show that the testator used the words “ children ” and “ heirs as synonymous or interchangeable terms.
    At the death of the testator, John Milton was unmarried, but he married afterward, and died without issué,. leaving his wife surviving; and the question presented is, whether the estate so devised to him passed at his death to-the widow, or to his brothers and sisters and their representatives, who are the legal heirs of the testator as well' as the next of kin of the devisee.
    
      F. F. Thompson, for the motion.
    
      A. G. McBurney, contra.
   Welch, C. J.

The question mainly argued by counsel does not, in our judgment, arise in the case. I mean the question, whether the widow, or the next of kin, of John Milton Bunnell, are his “heirs” within the meaning of the will, and as such entitled to take the remainder in the estate devised. Unaided by other jn’ovisions of the will,, this word “heirs,” in the clause in controversy, would be of quite difficult solution, especially in view of the fact that no one could be John’s heir to any estate in this property,, he having only a life interest. But we thiuk the will, taken as a whole, shows that this word “heirs” was used by the testator in the sense of “ children,” and that the devise in remainder failed, for want of children to take it, and that the estate revei’ted to the brothers and sisters of John and their representatives, not as his heirs or next of kin, but as-the heirs of the testator. This is substantially in accordance with the holding of the court below, and we see no error in its judgment.

Motion overruled.

White, Res, Gilmore, and MoIlyaine, <JJ., concurred.  