
    DEN ex dem. EMANS against EMANS.
    Devise that M. shall be partaker of the whole estate, provided she leave an issue, male or female; hers is an estate tail.
    This ejectment was brought to recover a moiety of a tract of about 300 acres of land, in the county of Hunterdon. The action was an amicable one, brought by one brother against another, in order to take the opinion of this court on the title. The following facts were agreed on as the state of the case.
    Isaac Kroom, on the 26th January, 1759, was seized and possessed of the land in question ; and on that day executed his last will and testament, in which, after the customary introduction, he says, my [704] will is, that all my debts shall be paid. Secondly, that my daughter Mary shall be partaker of my whole estate, both real and personal, provided, she leaving an issue, male or female; that is to say, my dear and loving wife is to have full possession as long as she live, [f] Item, my will is, that my loving wife Mary, I constitute to be my sole executrix. Item, my will is, that if my daughter Mary should happen to die, leaving no issue, then my loving wife shall have my whole estate, both real and personal. Item, my will is, that the issue, male or female, from the body of my daughter Mary, shall be next partaker. The testator died without altering or revoking this will. Mary, who was the only daughter of the testator, married John Emans, and had two sons, viz.: John Emans, the defendant, and Isaac Emans, the lessor of the plaintiff; John is the eldest son. That Mary, with her husband, lived on the premises until the death of her husband, in 1804, who had done no act to affect the title That after the death of her husband, Mary lived on the premises until her death, two years after her husband, and died intestate. That John Emans, the eldest son lived on the promises with his parents until their death, and still continues in possession, claiming the whole, under the will of Isaac Kroom. The question arising is, whether John Emans, the defendant, is entitled to the whole of the land, or only one half, and his brother Isaac, the lessor of the plaintiff, entitled to the other moiety
    
      Maxwell, for the plaintiff.
    Mary, the daughter of the testator, and mother of the parties, did not take an estate tail. The estate given to her, is an estate for life. There are not in the will any words of perpetuity to her and her seed, or children, or son. The defendant, therefore, comes in equal with the lessor of the plaintiff, as heirs at law to their mother, who inherited the estate from her father. The estate devised to her, being an estate for life, she came in by descent. The words of the will are much stronger to carry a fee to Mary, than a fee tail. 4 Hae. 254-
    
    
      11. Stoekton, contra.
    There is an express estate tail created in Mary by devise; and also an estate tail by implication or construction of law. There are words of inheritance; it is to Mary and her issue. If my daughter Mary, should happen to die, leaving no [*] issue, then her mother to have it, creates an estate tail by implication. Com. Hep. 333; 9 Coke, 127. Even if there was a joint estate for life, to the daughter and mother; after the death of the mother, the daughter took an estate tail. An original devise to the issue, without a previous devise to the parent, may be good to them, but this is not our case.
    
      I. H. Williamson, in reply.
    The parties are the heirs at law of the testator, whose intentions must govern in the construction of the will; and this intention is to be taken from the whole will, every word of which, is to have an effect, without adding or rejecting any words. Mary did not take an estate either by express words or implication. The interest that the daughter took, was a joint interest with her mother. She was to be a partaker; that is, she was to enjoy it with [705] her mother. This was a disposition of the personal, as well as the real estate. The last devise to the issue, was a substantial devise to them; issue is a description of the person. 6 Oruise, 185. Therefore, the issue took a substantial estate. The' previous estate to the mother, was only a partaking with her mother. If the latter clause was struck out of the will, he admitted that it might be construed an estate tail. The latter clause makes the difference. The policy of the law is against a construction in favor of creating an estate tail. The testator did not mean an indefinite failure of issue; he must have intended issue at her death. The devise over to the issue, is an original devise, and the issue take as purchasers jointly; all the issue shall take, and not one in preference to the other; 'but all in equal parts.
   Kirkpatrick, C. J., and Rossell, J.

Were of opinion, that Mary took an estate tail; and therefore, the defendant was entitled to judgment.

PEsnsTNgtok, J.

This case arises out of the will of Isaac Kroom, made in 1758. It is first contended, that the devise is void for uncertainty, and therefore, [*] that a fee simple came to his daughter Mary, by descent; and that on her death, it must descend according to the statute, to her two sons, the lessor of the plaintiff and the defendant, in equal portions. It must be admitted that the will is inartificially drawn. When a devise is so uncertain, that the intention of the testator cannot be collected from it, it ought to fail for uncertainty. Bow. on Dev. 415. But it has become a settled, and I think, a reasonable rule of law, that a devise is never to be construed void for uncertainty, but from necessity. If there is a possibilty of reducing it to certainty, the devise is good. 4 Bae. 334; @ Lord Bay. 1814. Now, I think, that the intent of the testator can be collected from the whole of the will taken together. That he had in view a provision for his only daughter, to whom he meant to give all his estate to her, and to the heirs of her body, should she have any. But in case she died without any heirs of her body, he gave the estate over to his wife. He intended that the wife should have the possession and management of the estate during her life. Whether he intended to create an estate for life in the wife, to the exclusion of the daughter, or whether he intended that she should only have the care and management of it, for the benefit of her daughter, it is not now necessary to determine. By the word partaker, the testator did not intend to parcel out the avails of the estate, and give a portion of the profits to the daughter. The words of the will are, shall be partaker of my whole estate, real and personal, provided she leaving an issue, male or female.” It was a disposition of the whole [706] estate, subject to the right of the wife, whatever it was; especially when taken in connection with the subsequent words of the will. The word partaker in the last clause, coupled with the word next, shows the sense in which the testator used the word. It was the same as to say, shall be taker of my estate. If it was not for the last clause, no doubt could possibly be entertained, but that the devise gave an estate tail general [*] to Mary, with a remainder in fee to her mother. It is this clause that creates the difficulty, to wit: “ Item, my will is, that the issue, male or female, from the body of my daughter Mary, shall be the next partaker.” That is, according to my construction, the next to take the estate. This is no more than the law implies; and what would have resulted from the anterior devise to the daughter.

But it is next contended, that this is an independent devise to the issue. That Mary took an estate for life only, and that the issue took a contingent remainder in fee by purchase. It is an ancient rule of law, that an heir shall not take a contingent estate as a purchaser, where the ancestor took a freehold estate by the same conveyance; the word isstte, in a devise, as a word of limitation, is synonymous to heir; it is nomen cottectivum, and takes in the whole generation. 1 Vent. 229. I admit, that where it is plain from the words of the devise, that the testator, after giving an estate for life to the ancestor, intended by the word heir or issue, a description of the person to take, that the heir or issue may, in that case, be considered as a purchaser, and not as taking by descent from the ancestor. But, I think, that no such intent can be drawn from the words of this will. The whole of the estate is devised to Mary, on condition of her leaving issue, not merely on her having issue born. The testator must have had in view an estate of inheritance in Mary, in case she had issue. The will, taken together, is no more than this: He gives the whole estate to Mary and her issue; provided she leave issue; and if she dies, leaving no issue, then he gives it over to her mother. It appears to me, to be completely within Sonday’s case, 9 Coke, 127. It is evident to me, that the testator did not intend to create a new stock of inheritance in the issue j it was not, in my apprehension, a designation of the person to take. If it had been to the eldest male or female issue, or to the second son, or any other way, which would have shown that the testator [*] meant to point out the person to take, it might have altered the case.

But suppose for a moment, we pursue the idea of the counsel for the plaintiff, that this was a devise to the issue [707] of Mary; after the death of Mary, who is to take ? There were two sons. The testator could not have intended to give the estate to all the children of Mary, in equal portions; at least, there is nothing in the will to show such an intent, but the contrary. He speaks of issue in the singular number, an issue, male or female; and in the last clause, the issue, male or female, from the body of my daughter, not male and female, evidently intending by the word issue, heir of her body, whether male or female, which, considering it a description of the person to take, would vest the title in the eldest son of the defendant. Therefore, whether the testator intended to create a fee tail in Mary, or a contingent remainder in fee in the heir of the body of Mary, is all one; we cannot presume that he looked forward to our act of Assembly, made twenty years after the date of the will, dividing the estate among the sons in equal portions. Besides, it is only in cases where the estate descends from an ancestor seized in fee simple, that the act has any validity. If the issue take as a purchaser, he cannot take by descent. Mary, in that case, had but an estate for life; I am clearly of opinion that we must either declare the devise void for uncertainty, or consider it as creating an estate tail general in Mary; and that the meaning of the testator is too manifest to justify the former; and, in my opinion, clear enough to establish the latter. Therefore, that the defendant is entitled to judgment.

Judgment for the defendant.  