
    *Goodwyn v. Taylor, Ex’or of Williamson.
    [April, 1795.]
    Will — Construction — Life Estate with Superadded Power of Disposition. — Devise to testator’s daughter E. C. of ¿4000 in the government funds during her life; land after her death, the Interest to his four grand children; and, at their decease, the principal and interest to he disposed of by them, to their heirs, in such proportion, as they hy their wills respectively may direct; and, in case of the death of his grand daughter S. C. her part to his grand daughter E. C.
    The grand children took the absolute property in the stock, after the death of the testator’s daughter E. C.
    Williamson, by his will in 1787, devised to his daughter Elizabeth Clements and her children, as follows : “I also give to my said daughter the interest of four thousand pounds in the government funds during her life, and after her death I give the interest of the above one fourth to each of my grand children Sarah Cocke, Elizabeth Clements, Prances Clements and John Clements, and at their decease the principal and interest to be disposed by them to their heirs in such proportion as they by their wills respectively may direct; and in case of the death of my grand daughter Sarah Cocke without issue, I give her part to my grand daughter Elizabeth Clements.” Robert Goodwyn and Elizabeth Clements the grand daughter intermarried ; and soon after Elizabeth Clements the daughter released, to them, her right in a thousand pounds of the public debt aforesaid. Mrs. Goodwyn died intestate, leaving her mother and husband both alive: Whereupon, Robert Good-wyn as administrator of his wife, brought suit against Taylor as executor of Williamson, for the thousand pounds. The county court decreed payment; but the court of chancery reversed the decree, and Goodwyn appealed to the court of appeals.
    Ronald, for the appellant.
    The grand children were each entitled to one fourth of the principal of the certificates. This was obviously necessary to effect the meaning of the testator: for otherwise their children would, upon failure to appoint, have taken nothing, although the testator intended *they should have an actual interest in the subject. The power to dispose of the principal and interest, to their heirs, was a gift of the whole to the grand children. For a power to give, to whomsoever the devisee pleases, carries the absolute property. 2 Vern. 181; 1 Wms. 149; Shermer v. Shermer’s ex’ors. in this court, 1 Wash. 266. And a power to dispose of a personal thing to the heirs indefinitely, whether understood as heirs general or special, amounts to the same thing; for there is no distinction between them, when a chattel is the subject of bequest.
    
      Wickham, contra.
    The testator did not intend to give more than a life estate to the grand children: For he has given them the interest only, and not the principal. His object was to provide for the issue as well as the parents, by putting it out of the power of the, latter to squander the property, or bestow it upon • other people. Accordingly, he has devised the interest, to the parents, and given them the power,to dispose of the principal among their children. For that is the true meaning of the word heirs; which, the testator-designed as a word of description,-, an.d not of limitation. It is not like the .cases cited by ,the appellant’s counsel, particularly that of Shermer v. Shermer’s.,ex’ors; because the devise there was to whomsoever the wife might think proper to- make her heir or heirs; which necessarily gave the whole property, as it .enabled her to constitute an heir by deed, will or intestacy. But- here the objects of- appointment were limited, and the exercise of the power, confined to particular, persons.
    Cur. adv. vult.
    
      
      Fee Simple — How Created — Life Estate with Unlimited Power of Disposition. — In Milhollen v. Rice, 13 W. Va. 533, the court said: “I do not understand, as counsel contend, that the court held, either in this case (Shermer v. Shermer, 1 Wash. 266), or in the case of Goodwin v. Taylor, 4 Call 305, that a life estate, with superadded power of unlimited disposition, would he held for that reason to he a fee simple. We have seen that the overwhelming weight of authority, both English and American, is opposed to such conclusion.” See pp. 519, 524 of Milhollen v. Rice, supra. But see 2 Min. Inst. (4th Ed.) p. 1073, and footnote to May v. Joynes, 20 Gratt. 692.
      Same — Same—Same—Rule in Shelley’s Case.-In Milhollen v. Rice, 13 W. Va. 541, the court, in referring to the principal case, said: “In that case the power was not, to dispose of to his heirs, hut to dispose of to their heirs in such proportion as they mhy direct. Which seems to me, to he essentially different, though this difference does not seem to have attracted the attention of the court in that case. In truth this language seems to have been thrown in hy the court at the close of its opinion without much consideration.
      “Tt really made no difference in that case, whether the word heir included devisees or not. The case must have been decided in the same way, whether these words were so construed or not. It was decided, as it was, because, as we have seen, the case was held to come within the rule in Shelley’s Case; and not because the testator intended to give more than a life estate to the devisee. And from what we have heretofore said, the rule in Shelley’s Case would have applied to it just as certainly, had the power to dispose of to their heirs been interpreted to mean legal heirs, as when interpreted to mean them and also devisees. I regard the expression by the court of its opinion on this subj ect, as a mere ol)H&r (hot/u/tn ”
      In Milhollen v. Rice, 13 W. Va. 560, the court said: “The case of Shermer v. Shermer, 1 Wash. 266, and Goodwin v. Taylor, 4 Call 305, were, as we have seen, prohahly decided on the ground, that the life tenant, hy suffering1 herself to die intestate, had constructively executed the power of attorney hy disposing of the property to her heirs, and she thus having a life estate with remainder to her heirs under the will, the rule in Shelley's Case applied, and her life estate was enlarged to a fee simple. But it may he, these cases were decided on the ground, that the powers given were powers in the nature of a trust, and being unexecuted, the court would enforce the trust, and give the property to her heirs; and thus taking it under the wills respectively, she having a life estate, and her heirs a remainder in fee, under the wills respectively, the rule in Shelley’s Case applied, and her life estate was enlarged to a fee simple. If these cases were decided on this principle, they are strong cases to give the real estate in the case before us to her heirs, under the will of William Milhollen; for we have seen, the rule in Shelley’s Case can have no application in this case.”
      The same will that was construed in the principal case, came up for construction in Wilkins v. Taylor, 5 Call 150; and the judges, citing the principal case, decided in conformity with it. See Wilkins v. Taylor, Wythe 338.
      See the principal case cited in Moore v. Brooks, 12 Gratt. 151; Bradley v. Moshy, 3 Call 62; Milhollen v. Rice, 13 W. Va. 531, 542. See the principal case reported in 2 Wash. 74.
      Executory Limitation — “Dying without Issue.” — The principal case is cited in Newby v. Blakey, 3 Hen. 6 M. 60. and Wilkins v. Taylor, 5 Call 157, to the point that, a limitation over, after an indefinite failure of issue, is void, as being too remote. See Riddick v. Cohoon, 4 Rand. 547.
    
   PER CURIAM.

The single question is, What interest Elizabeth Clements, the grand daughter, took in the principal of one fourth .of the public debt? ■ It was rightly argued by the appellant’s counsel that there is no difference between a bequest of a personal thing, and a bequest of the use of it with power, -to dispose of the subject at will; and consequently *that, in the present' case, the power given to the grand daughter, to whom the interest of one fourth of the certificates was devised, to.dispose of, the principal to her heirs general, invested her with the whole property in that fourth;. and enabled her to transmit it to her representatives, agreeable to the opinion of this court in the case of Shermer v. Richardson, 1 Wash. 266. But, in answer to this, it was said by the counsel for the appellee, that the intention was to give a naked power distinct from the property; and that the word “heirs” should be construed “children,” or “heirs of the body,” as the’testator meant only to provide for the grand children themselves and their posterity, and not to enable them to bestow the subject upon strangers. If, however, that was the intention, the testator has not expressed it; for there is nothing in, the will to shew that he meant the legal sense should be departed from; and, as he has used technical words without any qualification, the court must take them in the sense which the law imposes, and that comprehends heirs of every description. But admit the appellee’s counsel was right in his interpretation, it would avail him nothing. For, if the word “heirs” were taken t'o mean children, his construction would be at variance with itself; because it supposes the- testator'intended to benefit all the posterity bf his grand children; which, according to that construction, could not, in some events, have happened: for the distant progeny, to whom an appointment would have - been void, as not conformable to the power, would have been defeated, if the children of the grand daughter had died in her lifetime: and, if it be taken to mean “heirs of the body,” the distinction between that and heirs general is unimportant in a case of this kind; for, in a devise of a personal thing, it makes nd difference whether it be to one and his heirs, or to him and the heirs of his body; because in both cases the absolute property is given. Then if a devise to one for life, with power to dispose to his . heirs general, gives the absolute property, a like devise to him with power to dispose to “the heirs of. his body,” would *have the same effect.- It was contended, however, that .this case .differs from that of Shermer v. Richardson; because, in that, the-estate was given, after the death of the wife, to whomsoever she might think proper to make her “heir or heirs;” which, it was said, enabled her to select an heir from all the world; whereas, in this, she could only dispose to her heirs by descent or representation. But there is, in fact, no difference between the cases; for ■ a power to tenant for life to make heirs, is the same as a power to .dispose to his heirs: In both, the meaning is, the heirs whom he shall appoint, or the law create. The opinion of the county court then was right as to theinterpretation of the will; but, as the answer insisted upon‘a bond to refund in case debts should thereafter be made known, it should have been directed. The decree of the high court of chancery is therefore to be reversed, arid that of the-county c'oürt affirmed, with a provision'for the bond.  