
    
      Carey M’Lure, adm’r. vs. James M. Young, Jun.
    
    Testator devised real property to his “ daughter C., for and during the term of her natural life; and at her death, I give, bequeath and devise the same, absolutely and forever, to her lineal descendants; and in case she should die without lineal descendants, (one or more,) living at the time of her death, then,” over; Held, that C. took a life estate, with remainder to her lineal descendants as purchasers.
    Testator bequeathed personal property to his “ daughter C., and the issue of her body forever; but in case of my said daughter’s death without issue living at the time of her death, then,” over; Held, that C. took a life estate with remainder to her issue as purchasers.
    Testator bequeathed personal property to his “ daughter C.; but in case of my said daughter’s death without issue living at the time of her death, then,” over; C. died leaving issue; Held, that C. took an absolute estate in the property, and that the same vested in her husband, jure mariti.
    
    
      Before Johnston, Ch., at Newberry, July, 1849.
    Jonathan Davenport, deceased, by his last will and testament, hearing date the 18th May, 1842, devised and bequeathed as follows :
    “ 1st. It is my will and desire, that all my just debts and funeral expenses be first paid out of the cash on hand, and notes and bonds owing to me at the time of my death ; and, if that fund be not sufficient, then out of the balance of my estate.
    “ 2d. It is my will, that all the personal property which I have heretofore given to any of my children, and put them in possession of, be vested in my said children respectively, absolutely and forever.
    
      “ 3d. I give and devise to my daughter, Catharine Davenport, the whole pf my real estate, of which I may die seized, containing in all about fourteen hundred acres of land, for and during the term of her natural life ; and at her death I give, bequeath, and devise the same absolutely and forever to her lineal descendants ; and in case she should die without lineal descendants, (one or more,) living at the time of her death, then it is my will, that the whole of said real estate revert to my estate, and he disposed of as hereinafter directed.
    
      “ 4th. I give and bequeath to my daughter, Catharine Davenport, and the issue of her body forever, my Merriman clock, and the following twenty-four negro slaves, viz: Andy, Kit, Phillis, Smith, Frances, Milton, Sam, (son of Kit,) Caroline, Ritter, Amanda, Melinda, Charles, Lucinda, Griffin, Jerry, Lewis, Peter, Anderson, his wife Martha, her children Mary, Nancy and Emily, Sampson and Tener, with their future increase ; but in case of my said daughter’s death without issue living at the time of her death, then it is my will, that the property herein bequeathed to her, by this or any other clause of my will, be equally divided between my children, James M. Davenport, John G. Davenport, and Aimy Hilly and I give and bequeath and devise the same to my said three children and their heirs forever, share and share alike.
    “ 5th. I give and bequeath to my said daughter, Catharine Davenport, the choice of my wagons, and four choice horses ; pork sufficient for one year, and a stock of hogs sufficient to make, pork for the next succeeding year; one thousand bushels of corn, and a proportionate quantity of fodder and oats ; three choice beds and furniture, all my household and kitchen furniture, and my barouche and harness.
    
      “ 6th. I give and bequeath to my son, James M. Davenport, and to his heirs forever, the following negro slaves, with their future increase, viz: Ned, Mariah, Iverson, Isaac, Claiborne, Viny, Charlotte, Hannah, Bluford, (son of Easter,) Nelson and old Hannah.
    “7th. I give and bequeath to my son John G. Davenport, and to his heirs forever, the following negro slaves, with their future increase, viz: Jim and his wife Sarah, with their four children, Solomon, Elvira, Admiral and Muzilla, also old Sam and his wife Esther.
    
      “ 8th. I give and bequeath to' my daughter Aimy Hill, and to her issue forever, the following negro slaves, with their future increase, viz : Albert, Demps, Ellick, Joyce, Nelson, (son of Albert,) Dorcass with her children, Ann and Peggy and Ephraim ; also fifteen hundred dollars in cash; but in ca'se my said daughter should die without leaving issue alive at her death, then it is my will, that the property bequeathed to her in this clause be equally divided between my three children, James M. Davenport, John G. Davenport and Catharine Davenport, and I give and bequeath the same to my said three children, absolutely and forever, share and share alike.
    “ 9th. To my daughter Maria Louisa McLure, and to my daughter Elizabeth G. Rudd, deceased, I have heretofore given and advanced their full portion of my estate, for which reason no provision is made for either of them in this my will.
    
      “ 1 Oth. It is my will and desire, that all the rest and residue of my estate, not herein specifically devised and bequeathed, be sold by my executors, on such terms, conditions and credits as they shall deem proper, and the proceeds arising therefrom, after the payment of my debts, and the legacies herein bequeathed, be equally divided between my four children, James M. Davenport, John G. Davenport, Aimy Hill and Catharine Davenport, share and share alike, absolutely and forever; and in the event of either of my said four children dying before such division should be made, the issue of such child or children shall take among them, the share to which their respective parents would have been entitled if they had lived. I have heretofore given property to each one of my children, and have put them in possession of the same: and it is my express intention that what I have so given them, and what I have given them in this my will, shall be their portions of my estate in full, notwithstanding any apparent or seeming inequalities, as I have divided it out among them according to my own intentions and my own notions ; and I am, (or at least I think I am,) the best judge in the matter.”
    The bill was filed by the plaintiff, as administrator of James M. Young, deceased, the husband of testator’s daughter, Cathar-ine, for a settlement of his estate. Mrs. Young was also dead. The defendant is her only child.
    Johnston, Ch. This case is fully stated in the pleadings and exhibits, and was heard upon the facts set forth in the bill. The argument was so limited and incomplete, as to afford scarcely any guide whatever to the proper decision of it. For the purpose of eliciting further argument, and particularly the adduction of authorities bearing on the points raised, I threw out at considerable length, the impressions which the imperfect argument had produced on my mind ; but nothing of the kind has been furnished me, and I have been left to grope my way to the conclusions which I am about to announce, most of which have therefore been adopted with much hesitation.
    I think it would introduce a principle entirely too perplexing in practice, and so far as I know, without precedent, to allow Mr. McLure to carry back the note given to Stevens, through, the intermediate note, to the decree, and give him the lien of that decree, upon proof that the last note remotely arose out of that consideration. He will nevertheless be entitled, in taking an account of his intestate’s estate, to rank as a creditor for the money he has been obliged to pay on that note ; and may thus be partially, if not wholly, reimbursed.
    I am of opinion that, according to the decisions on Bell’s will, 
       — from which 1 cannot distinguish this case — the personalty was well limited to the defendant as purchaser, in remainder, by the fourth clause of his grandfather’s will; and, of course, the plaintiff’s intestate was chargeable with the profits of it, from the time the remainder took effect. In taking the account, there may be some modification of this liability, in regard to slaves employed in planting, which may depend upon the season of the year when Mrs. Young, the life-tenant, died. The precise time of her death is not stated in the pleadings; and I am therefore compelled to reserve this point until the commissioner’s report comes in.
    With respect to the real estate, covered by the third clause of the will, I entertain, at present, impressions somewhat differing from those suggested by me at the hearing.
    If we consider the words of the direct devise in this clause, apart from those relating to the limitation over, I suppose that the words “ lineal descendants ” — being testamentary words, and not words of a deed — may be construed equivalent to heirs of the body; and then it follows, according to all the authorities, that the estate created was a fee conditional in Catharine, the first purchaser, 
    
    I shall not stop here to inquire, whether the words of limitation over, or any other words in the context, are sufficient so to confine the words of limitation in the direct gift — by pointing them to the heirs of the body, living at Catharine's death — as to confer a remainder on those specific heirs, by purchase.
      
       But assuming, for the present, that there is no such qualifying matter in the context, and that therefore the will vested a fee conditional in Catharine, I shall proceed to state the results, which, in my opinion, must follow in this case upon that assumption.
    This kind of estate, says Blackstone, 
      “ was called a conditional fee, by reason of the condition expressed or implied in the donation of it: that, if the donee died without such particular heirs, the land should revert to the donor — for this was a condition annexed by law to all grants whatsoever: that, on failure of the heirs specified in the grant, the grant should be at an end, and the land revert to its ancient proprietor.” This eminent commentator proceeds to state the incidents of fees conditional, and among them one was, that the performance of the condition by the birth of issue “ enabled the tenant to aliene the land, and thereby to bar, not only his own issue, but also the donor of his interest in the reversion.” “ If, however,” he proceeds, “ the tenant did not in fact aliene the land, the. course of descent”— meaning the descent per formam doni — “was not altered by this performance of the condition, for,” says he, “ if the issue had afterwards died, and then the tenant, or original grantee, had died, without making any alienation, the land, by the terms of the donation, could descend to none but the heirs of his body ; and, therefore, in default of them, must have reverted to the donor. For which reason, in order to subject the lands to the ordinary course of descent, the donees of these conditional fee simples took care to aliene as soon as they had performed the condition, by having issue; and afterwards repurchased the lands, which gave them a fee simple absolute, that would descend to the heirs general, according to the course of the common law"
    
    Another incident of fees conditional was that the husband of a woman actually seized of such an estate, became tenant by the curtesy, upon having issue by her, born alive, and capable of inheriting her estate. “ In this case,” says this commentator,  “he shall, on the death of his wife, hold the lands for his life, as tenant by the curtesy of England.” And he lays it down upon authority, that by the birth of the issue, the husband became, even during the life of his wife, tenant by the curtesy initiate, so as to be entitled to do homage for her land alone, and not conjointly with her, as he was bound to do before the issue was born; that he also became natural guardian of the issue or heir apparent of the land; thus, for the term of his life, displacing the wardship of the lord of the fee ; and that his estate by the cur-tesy, once vested, was not determinable by the death or coming of age of the infant heir.
    This authority is sufficient to show that, according to the law of England, (which is our law, except so far as it is modified by statute,) if the estate vested in Catharine by the will of her father was a fee conditional, she never having alienated it, nor converted it into a fee simple absolute, it descended per formarn doni at her death upon the defendant, her sole issue, subject, however, to the life estate in her husband, as tenant by the curtesy, as contended for in the plaintiff’s bill. The consequence of that would be, that the husband’s estate would not be accountable for rents accrued between the death of the wife and his own death.
    The law of this case must undoubtedly be as I have stated it, unless there is something in the statute of 1791  to alter or modify it. The question then is, how far does this statute affect estates in fee conditional, or their incidents?
    It is very clear that the statute does not, in terms, include such estates, but is expressly made to affect fee simple only. And, if we look to the context, we shall see that its intention was only to regulate the descent among heirs general, according to the course of the common law, and to prescribe a more equitable canon than before existed, to be applied to cases in which deceased parties possessed the ability to devise the estate according to their own pleasure, but neglected to do so. This was entirely consonant to fee simples absolute, the species of estates expressly mentioned in the statute; but could not be intended of fees conditional, which were of a quality that admitted of transmission by deed only inter vivos, and not by will.
    I do not suppose it will be insisted that this statute was intended to apply directly to estates of the description we are now considering, or that they were intended to be included in the property over which it was to have direct operation. It that were the case, it is easy to show that it amounts, virtually, to a complete abolition of fees conditional, which would be a very strong interpretation to be put on a statute which makes no mention of such estates at all. What would be left of an estate descendible to specific heirs, if it were taken from them and given to heirs general ? Taken from the special male or female line, provided for in the contract, and given to males and females promiscuously ? Or from the lineal issue, whose advancement formed the consideration of the grant, and given to collaterals ? What would be left of the donor’s right of reversion, if this Act were made to apply to such estates ? Though the contingency should happen upon which, by the terms of his grant, the estate should return to him, to wit: the failure of the special heirs mentioned in it, yet, upon the construction now under consideration, the land should not revert, but go to other persons never within the donor’s contemplation.
    This would be a startling construction. How many titles and how many settlements would it destroy! It would shake the landed interests of the State to an extent and to an amount in value that would confound the rashest reformer among us, and cause even him to pause. When I consider the number of adjudications which fill our judicial archives and our books of reports, in which fees conditional are recognized and supported as valid and subsisting estates, I cannot hesitate to discard any interpretation of this organic statute regulating descents, which rests for its validity only on a principle that abolishes this established tenure.
    But, as I have said, no one contends that the statute of 1791 applies directly, or was intended to apply directly, to fees conditional. No one contends that it regulates directly the distribution of such estates. Does any one pretend that, upon the death of the first purchaser of a fee conditional, it is to be distributed by giving the widow or widower of the party one-third? or that, in case there be no lineal descendants, the distribution is to be extended to collaterals ? And if this is not contended for, what is meant by saying that the statute (which is only for distribution) applies to such estates?
    But I may be asked, do you contend that the statute of 1791 
      has no influence 
       whatever upon the rule of inheritance in these estates ? Certainly I do not. It has an indirect influence. We are told by the authorities that in England “ a devise to the heirs of the body comprehends the remotest issue, and takes the oldest son previous to and in preference to the younger.” I suppose this rule of primogeniture may be still applicable to the inheritance of fees conditional created before 1791. It is understood to be very different in relation to such estates created since that time; and I believe the uniform practice is to apply a rule of inheritance drawn from the statute of 1791. But this is not because the abolition of the right of primogeniture, contained in that Act, was intended by the statute to be directly applied, or is directly applicable, to fees conditional. I have, upon another occasion, endeavored to show that this provision in the statute was intended to apply solely to estates which had previously descended according to the general law of inheritance, and which it was the object of the statute to render distributable by a different rule; and that the right of primogeniture was abolished for the purpose of introducing the new rule ; the object being to clear the ground for the general distribtttion, by abolishing that which stood in its way. But all this related exclusively to intes-tates’s estates, descendible to heirs general, according to the course of the common law. The influence which this legislation has upon fees conditional is simply this: the statute of 1791 serves to define who are heirs, and we resort to it for the purpose of learning from its provisions what lineal descendants come within the description, and to these persons we adjudge the inheritance to belong, as heirs of the body. The process is just the same as if the inheritance of the special estates were, by the terms of the instrument, made descendible to the sheriffs of the county, and, by a change of the law, that office should be vested in a plurality of persons; we should have to resort to the statute by which the tenure was changed, in order to know what persons were, as sheriffs, entitled to the property. And so in rela-tionto the statute of 1791. This statute may be regarded as a table of definitions, to which conveyances' of fees conditional, subsequently executed, may be sitpposed tacitly to refer; and when we find in such conveyances the words heirs of the body, we turn to the Act for the purpose of learning what issue of the body are therein declared to be heirs, and in what proportions; just as, in the case of such conveyances executed before the statute, we should resort to the definitions of the common law, to which the instrument must be supposed to have referred. This is the only function the statute performs as to fees conditional. It furnishes information. But as to fee simples, for the regulation of which it was enacted, it goes further, and commands how they shall be distributed. But the statute of 1791 is not entitled to operate to any greater extent than this. To the incident of inheritance belonging to fees conditional, it has the indirect application which I have stated. But it is not perceived how it applies to any other incident or quality of such estates; whether arising before or after the descent is cast. For instance, can it be supposed that it abolishes or modifies the power of barring the inheritance by alienation 1
    
    I do not perceive by what process of reasoning it can be established that the tenancy by the curtesy is abolished, as incident to this particular description of estates, any more than any other of its incidents. The estate being permitted to exist, and being recognized by law, must carry with it all its incidents, and this among the rest, unless abolished expressly or by necessary implication.
    It is a very different question whether this tenancy is abrogated in relation to fee simple estates absolute, upon which much might be said. Upon that subject it would be improper and unbecoming to volunteer an opinion here, where the case does not call for it. But this case does involve the point I have endeavored to discuss; and, according to the best view I can take, with my present opportunities, I must come to the conclusion (and so I adjudge) that, if Catharine’s estate was a fee conditional, her husband was entitled to a tenancy by the curtesy; and he was not accountable for the rents of the land accruing between her death and his own.
    The remaining question is, whether- the limitation over is sufficient to convert the estate into an estate for life in Catharine, with remainder to. the defendant as purchaser. The words of the limitation over are nearly the same and of identical import with those employed as to the personalty; and it would seem, at first view, calculated to produce the same effect. But the case of Whitworth vs. Stuckey 
      
       is precisely in point, to show that, as applicable to real estate, such words are not sufficient to affect the direct limitation. And to that case, and the authorities there cited, I refer; and with the more confidence, because the Chancellor who delivered the opinion was the same who had given the judgment on Bell’s will; and on this latter occasion offers his reasons for applying a different rule in relation to real and personal property.
    It is ordered that the foregoing opinion stand for the decree of ■ this Court.
    It is further ordered that the Commissioner do call in the creditors of the plaintiff’s intestate, to prove and establish their demands, by a day to be fixed by the Commissioner, by advertisement in the South Carolinian newspaper; and that the Commissioner do take an account of the said estate, charging it, among other things, with the profits of the personal estate limited in remainder to the defendant, by the will of Jonathan Davenport, according to the foregoing opinion; and that the Commissioner report the proper mode of distributing the assets of the said estate among its creditors, and what balance, if any, remains for distribution to the defendant, the sole distributee. The costs to be paid out of said estate in the first instance.
    The complainant appealed, on the following grounds:
    1st. On the bill filed by Young and wife against Davenport, her guardian, this Court ordered the property to be delivered to Young, but declared that the guardian should have a lien on the .property for any balance that might be found due to him; a balance of $>46115 was found due to the guardian, for which Young gave his note; Davenport transferred the note to Stephens, and Y oung gave to Stephens a new note, with McLure as surety; and the surety having paid the note since Young’s death, it is submitted that his Honor erred in declaring that he is not entitled to a lien on the property for the debt.
    2d. That by a proper construction of Jonathan Davenport’s will, the land was devised to his daughter Catharine in fee simple.
    8d. That his Honor erred m deciding that the personalty bequeathed to testator’s daughter Catharine was well limited to the defendant, her only child, as purchaser in remainder.
    4th. That his Honor erred in deciding that the said Catharine took only a life estate in the property bequeathed to her by the 4th and 5th clauses of the will.
    
    5th. That his Honor erred in not directing that the estate of James M. Young, deceased, should not be held to account for the property which the said Catharine received under the 5th clause of the will, nor for the clock bequeathed to her by the 4th clause — seeing that that property, or the greater part of it, was consumed or worn out before the estate came into the possession of said Young.
    The defendant also appealed, on the following grounds:
    1st. That his Honor erred in holding that Mrs. Catharine Young took a fee conditional in the lands devised to her by the 3d clause of Jonathan Davenport’s will.
    2d. That tenancy by the curtesy does not now exist in this State; and that his Honor erred in deciding that James M. Young, deceased, was entitled to a life estate in the lands devised by the 3d clause of the will, as tenant by the curtesy.
    3d. That by the terms of the will, Mrs. Catharine Young took only a life estate in the lands devised to her, with remainder to her issue as purchasers.
    4th. That James M. Young, jr., took under the will, at the death of his mother, a fee simple estate in the lands devised to her.
    
      
      Sullivan, for the plaintiff,
    cited 2 Jarm. on Wills, 24, 25,178 ; 2 Wms. on Exors., 809, 810; Phillips vs. Garth, 3 Bro. C. C., 69; Rev. Dom. Rel., 457 ; Scanlan vs. Porter, 1 Bail., 427; Bedon vs. Bedon, 2 Bail., 231; 1 Hill’s Ch., 281; 3 Hill, 193; 4 McC., 442 ; 2 McC. Ch., 171; Hull vs. Hull, 2 Strob. Eq., 190 ; 6 Rep., 19 j 3 Rich., 289; 3 Strob. Eq., 211; 1 McC. Ch., 82 et seq,; 4 Kent, 27; 1 Co. Lit., 19; 2 Bay, 397; 1 McC. Ch., 91; 2 McC. Ch., 324; Gray vs. Givens, Riley Ch., 41.
    
      Baushett, contra,
    cited 6 Cruise, 147; 3 Bin. R., 150; Archer's case, 1 Rep., 163; 4 Kent Com., 214, 220; Merest vs. James, 5 Eng. C. L. R., 156; 1 Salk., 224; 2 Jarm., 354; Lees vs. Mosley, 589; Cooper vs. Collis, 4 T. R., 294; 44 Eng. C. L. R., 330 ; 4 Bur., 2579; 33 Eng. C. L. R., 373; 32 Eng. C. L. R., 483; Williams vs. Caston, 1 Strob., 130; 1 Bin., 139; 2 Hill Ch.,-197.
    
      Garlington, same side.
    
      
      
         Riley’s Eq. 247; Bail. Eq. 535; 2 Hill, 328, and see 2 Sp. 786.
    
    
      
       2 Bl. Com. 115, (and note 10,) 381.
    
    
      
      
         See authorities cited in Hull vs. Hull, 2 Strob. Eq. 189, 192.
    
    
      
      
         2 Bl. Com. 110 & vide 1 Cruise, Tit. 5, ch, 2 § 5, 8, 9,10,27,28; and Tit. 1 & 2 passim, 2 Bl. Com. 111.
    
    
      
      
         2 Bl. Com. 116, 126.
    
    
      
       5 Stat. 162.
    
    
      
       Fearne 167 of Phila. Ed. of 1819 ; p. 103 of 3d Eng. Ed.; Martin vs. Price, 2 Rich. Eq. 470, 471.
    
    
      
       1 Rich. Eq. 411, 4-12, 413.
    
   Dunkin, Ch.,

delivered the opinion of the Court.

The question referred to the Court of Errors arises out of the third and fourth clauses of the will of Jonathan Davenport, deceased. The Chancellor ruled that under the devise to Catha-rine Davenport she took a fee conditional in the real estate. On-the part of the appellant, it is insisted that she took only a life estate, with a valid remainder to himself as a purchaser under his grandfather’s will. The decision is founded on what is familiarly known as the rule in Shelley's case. All the authorities'admit that a rigid adherence to the letter of this rule would frequently defeat the intention of the testator. “ It is a rule of tenure, which is not only independent of, but generally operates to subvert, the intention.” It must not, therefore, be understood, says Mr. Jarman, that even the technical expression, “heirs of’ the body,” is incapable of control or explanation by the effect of superadded expressions, .clearly demonstrating that the testator used those words in some other than their ordinary acceptation, and as descriptive of another class of objects” — (2 Jarm. on-Wills, 300.) Although a difference of opinion exists among Judges as to the word issue, yet, it seems now settled, that un-less restricted by the context, this expression cannot be satisfied by applying it to descendants at a particular period. But if, from superadded expressions, or from the context, or from other parts of the will, it is manifest that'the testator used the term as synonymous with “ children,” or intended to describe a class of persons to take at a particular time, issue will be construed as a word of purchase, and not of limitation. And this rule is equally applicable to every other expression used as synonymous with heirs of the body. Whenever the words “ heirs of the body” would be explained to mean some other class of persons, the same construction is given to the synonyme, and the rule in Shelley’s case does not apply. — (2 Jarm. 281.) It must be conceded that, in the application of these rules, the cases cannot be reconciled. There seems to have prevailed an unceasing conflict between the obligation to observe a technical rule and a solicitude not to defeat the obvious intention of the testator. In England, this struggle has been so manifest, and the discrepancy in the decisions so perplexing, that a special Act of Parliament has been found necessary, (1 Vic. c. 26, s. 29,) which restricts and defines the construction to be given to words in a will importing a failure of issue. But, prior to that Act, if it could be gathered from the will that the testator did not contemplate an indefinite succession of issue, but a class of persons to take at a particular time, this manifest intention was respected and carried into effect. It was sáid, in argument, that the will of Davenport was prepared by a professional gentleman of sagacity and long experience, whose name appears as a witness to the instrument. Be that as it may, if the draughtsman had not before him, he clearly had in his mind, the Act of 1791; which declares the mode of distribution of an intestate’s estate at the time of his death. In the various clauses of the will, the terms issue, children, and heirs, repeatedly occur. When the word heirs is used, it is obviously intended only to express the amplitude of the estate, as in the devise to his sons, and their heirs forever.”— In the clause under review, the devise is to his daughter, Catha-rine, “ for and during the term of her natural life; and, at her death, I give, devise, and bequeath the same, absolutely and forever, to” — whom ? Not to her child or children, for she might have none, but to her children, grand-children, or great-grandchildren, as the case might be; or, using the comprehensive and familiar terms of the statute, “ to her lineal descendants.” But, perhaps she might leave none of these ; and the testator proceeds to provide, as, in such case, the statute provides, for distribution among collaterals, where the intestate leaves no lineal descendant. “And in case,” says he, “ she should die without lineal descendants, (one or more,) living at the time of her death, then it is my will that the whole of said real estate revert to my estate and be disposed of as hereinafter directed.”

The statute declared that on the death of an intestate, leaving only brothers and sisters, the estate should be distributable equally amongst them. This was not quite in accordance with the testator’s views. His daughter had two brothers and three sisters, who, in the contingency contemplated, would be entitled to her estate under the statute. But there were two of the sisters whom the testator desired not to partake, as he had already, in his life time, amply provided for them, or, (to use his own expressions,) he had done so “ according to his own intentions and his own notions, and I am, (says he,) or at least, I think I amj the best judge in the matter.” He therefore directs that, in such event, “the property bequeathed to my daughter, (Catharine,) shall be equally divided between my children, James M. Davenport, John G. Davenport, and Aimy Hill; and I give, bequeath, and devise the same to my said three children and their heirs forever, share and share alike the testator thereby modifying the provisions of the statute, and excluding his other two daughters, Maria Louisa McLure and Elizabeth G. Rudd. Is there any rule or decision which demands the destruction of this scheme, and a sacrifice of the manifest purpose of this testator ? Giving to the terms, “ lineal descendants,” exactly the meaning of “ issue,” are there not words restraining the meaning to issue living at the death 1 It is argued that the construction of this devise is concluded by Whitworth vs. Stuckey, (1 Rich. Eq. 404.) Certainly that case goes as far, in deference to the decisions in Westminter Hall, as the most tenacious could desire.— And it is somewhat remarkable, as is elsewhere noticed, that the reason for adhering to the technical construction in devises of real estate in the Courts of England, not only does not exist in South Carolina, but the contrary. Admitting, as the English authorities do, that a more liberal rule prevails in bequests of personalty, they justify the distinction on the ground that, by construing the words to import a general failure of issue, it would, in personalty, necessarily render void the gift over, which is to take effect on such contingency; but that this construction, in devises of real estate, would only have the effect of creating an estate tail, on which a remainder may be limited.— (2 Jarm. 362.) But in South Carolina this construction creates a fee conditional, upon which, according to our decisions, a remainder cannot be limited ; and the disinclination to adopt such construction should equally exist in devises of real estate as in bequests of personalty. But the terms of this devise are not the same with those in Whitworth vs. Stuckey, and other words are here superadded, evincing the intention of the testator, which are wanting in that devise. Language of the strictest technical import, as heirs of the body, will not control the construction if the intention be clearly manifested to describe thereby a class of persons to take at a particular period. In such case the intention will prevail. The rule only requires, says Mr. Jarman, a clear indication of intention to that effect. And so, in Ryan vs. Cowley, (Lloyd & Gould, 10,) Lord Chancellor Sugden says of the term issue, it may be employed as a word of limitation, or of purchase, and if, by the context, the testator shows that it is used as synonymous with child or children, he translates his own language, and the Court gives effect to his declared meaning. Using technical expressions, a party is presumed to use them in a technical sense, because every man is presumed to know the law. It has been already remarked, that the use of the term lineal descendants,” indicated that the testator probably looked to the scheme of the statute which adopts this peculiar phrase in providing for the final distribution of an intestate’s estate at the period of his death. But the testator has borrowed other expressions from the same statute, more familiarly known, perhaps, than any other in the statute book. The first canon of .this statute provides for the distribution of the estate between the widow and children, if more than one ; but if only one, the remainder of the estate shall be vested in that one, absolutely forever. Then, in the next canon, the lineal descendants of the intestate shall represent their respective parents, and be entitled, &c. The next provides for the event that the intestate shall not leave “ a child or other lineal descendant” : It is hardly necessary to say that the statute confers an estate in fee simple, or, in its own phrase, “ absolutely forever.” Each canon vests the estate in the persons who, at the death of the intestate, shall answer the description. If the testator had devised the estate to his daughter, for and during the term of her natural life, and at her death, to such persons, absolutely and forever, as would at that time, had it been her own property, be entitled to take her estate according to the statute of distributions, it would be difficult to entertain a doubt as to the meaning of the testator, and scarcely questionable that the persons thus described would take as purchasers. They might be the lineal descendants of his daughter, or her ancestors, or her collateral relations, or even her husband. They would, nevertheless, according to our decisions, be her heirs. But the testator clearly manifests that no indefinite succession was contemplated, and that he merely purposed to describe a class of persons,, who, at the death of his daughter, should take absolutely the estate which he had given to her for life. He has, in the will before us, only varied the language to meet his purpose. He declares, in case his daughter should die without lineal descendants, one or more, living at the time of her death, then, he desires the estate to revert to his estate, and to be disposed of in a different manner than that prescribed by the statute in such event. The testator, therefore, adopts the language of the statute and with the meaning intended by the statute, provided, at the death of his daughter, there were living any lineal descendants, (one or more.) By “ lineal descendants,” tire statute meant .child, grand-child, greatgrand-child, &c,; the testator meant the same.

But, as I have remarked, there are other expressions in this will which do not appear in Whitworth vs. Stuckey, and. which have received judicial construction, as limiting the general terms of this devise. After giving a life estate to his daughter, the testator provides, as follows — “after her death, I give, bequeath and devise the same, absolutely and forever, to her lineal descendants.” These are the expressions used in the first canon of the statute of distributions.

The effect of these words, as declaratory of the intention of the testator, came under the consideration of this Court in Myers vs. Anderson, (1 Strob. Eq. 344). Although that v as a case of personalty, no such distinction is adverted to, and the language of the Court seems too distinct, general and emphatic, to admit of any such restricted interpretation. In that will the words were, (after the gift of a life estate to Mary Brown and Margaret Brooks,) “after the death of the said Mary Brown and Margaret Brooks, to be the absolute property of the issue of their bodies, forever.” “If obliged,” says the Chancellor in the circuit decree, “by the rules of law to extend, in perpetuity, the interests of these legatees which is expressly given for life, and to declare that the interest which is given to their issue, expressly ‘to be then-absolute property,’ is no interest at all, — that the absolute property is not in the issue to whom it is given, but in the mother to whom it is not given, but, on the contrary, from whom it is expressly withheld: if I am obliged by the rule in Shelley’s case to do this, I shall feel that I am sacrificing the intention of the testator, as to which there can be no mistake.” The Chancellor “conformed his decree to the manifest intention of the testator, and declared that Mary Brown and Margaret Brooks took only a life estate, and that upon their deaths, respectively, their issue took as purchasers.” In affirming this decree, the Court of Appeals say, — “ all the authorities agree that, if the limitation be to the heirs of the body, or issue, and to their heirs, this constitutes them purchasers : as it shews an intention to give them an estate, not inheritable from the first taker, but an original estate inheritable from themselves as a new stock of descent. The authorities also agree that, if the estate limited to the heirs of the body, or issue, be of a quality, or be given to be enjoyed in a way, incompatible with the idea that they are to hold it in indefinite succession (as if it be given to them as tenants in common, or to be equally divided between them); — this takes it out of the rule in Shelley’s case; and the immediate heirs or issue take as purchasers. It appears to the Court that the testator in this case, by the gift to the issue, not only of the property, or slaves, but of the absolute property in them, (a term importing the quantity of interest intended to be given,) has as effectually given them the fee, (so to speak) as if the bequest had been to the issue and their heirs; and that the gift of the absolute property, or fee, rebuts the idea that he intended it to go in an indefinite succession.” '

This doctrine met the approbation of the whole Court, among whom was Chancellor Harper, who had himself decided Whitworth vs. Stuckey, and who, in this decision, saw nothing inconsistent with it. The principles, on which the distinction was placed, are well established principles in relation to real estates, and constitute well recognized exceptions to the rule in Shelley’s case. The language of this will is, if possible, more emphatic. It is not merely to be ‘their absolute property,’ but it is given, in the words of the statute, to them absolutely and forever. This Court is of opinion, in the terms of Myers vs. Anderson, that this is equivalent to a devise to them and their heirs, that the daughter of the testator took only a life estate, and that the defendant, the only child oí his deceased mother, was a purchaser under the will of his grand-father, and that it should have been so declared.

O’Neall, Frost, Withers and Whitner, JJ. and Ward-law, Ch. concurred.

The case having been returned to the Equity Court of Appeals, in that Court the following judgment was pronounced.

Johnston, Ch.

The Court of Errors having determined that the defendant took the real estate, covered by the 3d clause of testator’s will, as purchaser, upon the death of his mother; and their decision to that effect having been returned to this Court; it is ordered that the same be deemed the judgment of this Court upon that point; and that the account which has been ordered be taken with that modification.

This Court, proceeding to deliver its judgment upon the residue of the case, concurs with the Chancellor in so much of his decree as relates to the note given to Stevens.

It, also, concurs with him in his decree relating to the personal estate of the testator, except as to so much thereof as is covered by the 5th clause of his will.

In the 4th clause the direct limitation is to Catharine and her issue. The limitation over, in the latter part of that clause, has been properly held sufficient to convert the issue into purchasers.

But in the 5th clause issue are not mentioned in the direct gift. That is made to Catharine alone: and the limitation over (which is found in the latter part of the fourth clause) cannot have the effect to vest any thing in the issue, unless by implica-cation; which is expressly contrary to Carr vs. Porter, (1 McC. Ch. 60). This difference between the 4th and 5th clauses was overlooked by the Chancellor, from the fact that only the 4th clause was argued, and that very imperfectly. Our opinion is that Catharine took an absolute interest in the personalty given by the 5th clause: and that the same vested in her husband jure mariti; and whatever of it remained at his death, was part of his estate.

It is ordered that the decree be modified as indicated in this judgment and in that of the Court of Errors.

Dunkin and Dargan, CC. concurred.

Wardlaw, Ch. was not present at the hearing in this Court.

Decree modified.  