
    BROWN vs. BONNELL.
    Where the primary intent is to give a fee simple, it is not changed into a life estate by subsequently restraining the power of alienation.
    Error to Common Pleas of Luzerne counly, No. 32 January Term, 1880.
    The report of the referee was as follows :
    The controversy between these parties is narrowed down by their admissions and agreements to the claim by the plaintiff to recover two thirty-fifths of the coal, and four fifty-fifths of the surface of the lot first described in the writ, and designated as the homestead lot, containing one hundred and forty-seven acres; second, of like proportions of the Pringle lot, the fifth named in the writ, containing forty-six acres one hundred and nine perches, and four fifty-fifths of the undivided half of the ■surface of the Babb lot, numbered in the writ as Nos. 6 and 7, and lastly four fifty-fifths of the undivided one-half of the surface of a small adjoining lot, numbered 8 in the writ, containing about one acre. These last two lots are claimed by Gardiner Snyder, to whom it is conceded Mr. Gould made and delivered his deed, and that the purchase-money was paid.
    Jacob Gould, under whom both parties claim, died seized of lands, to wit, of the whole of the Homestead and of the Pringle lot, and of the undivided half of the surface of the Babb lot, and of the one-acre lot, on the 9th of March, 1849.
    Jacob Gould left seven children — four sons, John, Thomas, •Samuel and Jacob Gould; and three daughters, Charity, intermarried with Benjamin Pringle ; Ann, intermarried with Caleb Atherton, and Elizabeth, widow of John Rickard. All ■these children were married at the time of their father’s death, •except Jacob. There were several grandchildren then living, children of the sons and others of the daughters. There were five children of Thomas Gould, four born prior to the death of Jacob Gould, their grandfather, to wit: Lotta, intermarried with J. E. Hallack; Sarah Ann, intermarried with Lewis Boughton; Harriet E., intermarried with Samuel M. Davenport; and Orange P. Gould; also Elijah M. Gould, born after Jacob Gould’s death.
    Jacob Gould made his will the 14th of June, 1834, to which he added a codicil, dated the 29th of September, 1847. His death, as above stated, occurred on the 9th of March, 1849,. and the will and codicil were admitted to probate on the 21st of March, 1849.
    The fourth and sixth clauses of the will, which, together with the codicil, became important in this inquiry, are as follows : “I give and bequeath unto my seven children, four of which are sons, the eldest is John Gould, and Thomas Gould and Samuel Gould and Jacob Gould, and my three daughters,. Charity Pringle (naming them and their husbands), all my real estate, to be divided into eleven shares, equal in value. To my son, John Gould, and to his lawful heirs, I will and bequeath two shares; to my son, Thomas Gould, and his lawful heirs, I will and bequeath two shares; to my son, Samuel Gould, and his lawful heirs, I will and bequeath two shares; to my son, Jacob Gould, and his lawful heirs, I will and bequeath two shares; to my daughter, Charity Pringle, wife, &c., I will and bequeath one share, to the sole and separate use of her and her lawful heirs, so that my daughter Charity can not sell or convey the same, but to descend to her lawful heirs and so that the said real property can not be taken, sold or rented or leased from, her to pay any judgment or demand that may be against her said husband,” and to Ann Atherton and Elizabeth Rickard each one share under the like restraints. “Sixthly, I will give and bequeath unto my seven children, John Gould, Thomas Gould, Samuel Gould, Jacob Gould, Charity Pringle, Ann Atherton and Elizabeth Rickard, and their lawful heirs, all the coal mines which are now or may be hereafter found on any part of my landed property, each of my children or their legal representatives to hold one-seventh part, or each to share alike in the interest or profit thereof, * * and that each one shall have an equal right to dig or mine coal, * * that neither of my children or their lawful heirs or representatives shall have a right in any one year to dig or mine more than two ark-loads of coal more than the other heirs.”
    The seventh clause provides that the three daughters and their legal heirs shall hold their interests in the coal mines under each and every restriction, as he has devised his real and personal property to them, as though it were particularly mentioned, reference being had to the fourth article of the will, with this difference: each daughter is made equal to each son, each having one-seventh part or share in the coal mines, with all privileges of roads, &c.
    In the codicil, after reciting the purchase of about sixty acres of land after the date of the will, and expressing the desire that in the devision of his real estate, Jacob shall have these after-acquired lands, and should they be valued at more or less than two shares of his real estate, that Jacob shall pay to the others such excess or be paid by them such deficiency so as to make his two shares equal to the others,- he adds: “I hereby give and bequeath unto my children hereinbefore named, all the real estate that I am now seized of, as well as other real estate that I may hereafter purchase or become seized of at my decease. And it is also my desire and intention in this my last will and testament, not to invest the fee simple of my real estate in any said sons or daughters; my said several sons to wit, John, Thomas and Jacob, can not dispose of or alienate, as well as my daughters, any part or parcel of real estate, all of which is to descend to their respective heirs and legal representatives. I also give and bequeath to my son Thomas the house and lot called the ‘Parker house’ and lot, containing about two and one-half acres of land, to be charged to him in the division of my real estate, and subject to the same restrictions as my other real estate.”
    The will directs the division of his real estate, and suggests methods of effecting it; none however was made, and this action is for the recovery of the undivided interests of Orange P. and Elijah M. Gould, two of the five children of Thomas Gould, each of whom, the plaintiff claims, were, under the will, entitled to one-fifth of one-seventh or one-thirty-fifth of the coal in lots Nos. 1 and 5 in controversy, and to one-fifth of two-elevenths or two-fifty-fifths of the surface of said lots 1 and 5 in the writ named, and to four-fifty-fifths of the one-half or to four one-liundred-and-tenths of the surface of the Babb lot, designated in the writ as Nos. 6 and 7, containing thirty-six acres and twenty-two perches, and to a like interest in the surface of one acre lot, designated in the writ as No. 8, the interest of Jacob Gould in the last two lots having been, at the time of his decease, an undivided half only of the surface.
    The plaintiff, Aaron Brown, as appears in evidence, bought on the 8th of September, 1875, Elijah M. Gould’s interest, and on the 4th October, 1875, Orange P. Gould’s in the lands.
    On the part of the defendant it was shown that on the 18th of May, 1864, John Gould and others, amongst whom were Thomas Gould, with Hallock, Bouton and Davenport, and their wives, daughters of Thomas Gould, Aaron Brown and Esther, his wife, with other children of Ann Atherton, one of the devisees of Jacob Gould, gave their deed with covenants of special warranty, to William L. Lance, Jr., for the lot of forty-six acres and one hundred and nine perches, No. 5 in the writ, and known as the Pringle lot. It is conceded that the title conveyed to Lance has since passed to and become vested in Samuel Bonnell, Jr., one of the defendants.
    On the 11th June, 1864, Thomas Gould and wife, and Hal-lock, Bouton and Davenport, with their wives, executed and delivered their deed to A. G. Davis, for the undivided two-elevenths of the surface, and one-seventh of the coal (being all of the Thomas Gould interest), in the one hundred and forty • acre lot, known as the Homestead, and designated as No. 1 in the writ. It appears by admissions that out of this interest, thus acquired, one hundred and thirty-three acres sixty-two perches have since become vested in Samuel Bonnell, Jr., and the residue in John J. Shouk, another of the defendants.
    It is further admitted that Thomas Gould conveyed by deed to Gardiner Snyder, one of the defendants, his interest in the Babb lot, and the one acre lot, designated, the former as 6 and 7, and the latter as No. 8, in the writ.’
    
      Thomas Gould died on the 20th August, 1875, prior to the bringing of this suit and to the date of the sales to plaintiff by Elijah and Orange P. Gould.
    The foregoing statements are undisputed, and are found and reported by the referee, mainly upon the admissions of the parties, as questions and findings of facts.
    It is urged in the first place by the defendants’ counsel under authorities cited, that the plaintiff is estopped from claiming any part or interest in the Pringle lot (No. 5 in the writ), by having joined in the deed of 18th May, 1864, with other Gould heirs, conveying in fee not merely his wife’s interest, but all “that certain piece of parcel of land,” describing it by courses and distances; that any interests acquired by the plaintiff under his purchases of 8th September and 4th October, 1875, from Elijah M. and Orange P. Gould, at once inured to the benefit of Lance or of his grantee. The cases are numerous where courts have held that if one without any title makes a deed of land, with covenants of warranty, and after-wards acquires a title to the same, it will inure to the grantee-and covenantee by way of estoppel. But in the present case, Esther Brown, the plaintiff’s wife, was an heir, through her mother, of Jacob Gould, and had an undivided vested interest in which the conveyance of 18th May, 1864, with its covenants, operated and took effect. In the deed the granting parties are designated and recited, not as the heirs or all the heirs, but simply as “heirs and legal representatives of the. said Jacob Gould, deceased.” Their interests as heirs are thus specified as the subjects of the grant; the warranties are individual, “Each one for himself or herself and not for the other.” The deed was effective to pass to the grantee in fee her interest in the land, and as the doctrine of estoppel seems to extend to conveyances by married women joining with their husbands, she as well as her husband are estopped from claiming any title existing in them at the time of making their deed ; but the referee is of the opinion and finds, as matter and question of law, that the plaintiff is not estopped by the deed of 18th May, 1865, from claiming the after-acquired interests purchased of Elijah M. and Orange P. Gould.
    The remaining and more important question in the case is the quantity of interest granted to Thomas Gould by the will.
    The counsel for the respective parties have collected with care, and urged with much ability, the authorities bearing on the interpretation of wills, the signification to be attached to the words used in determining the intent of the testator, and the application of the rule in Shelly’s Case in qualifying and controlling that interest.
    The plaintiff’s counsel contend that under the law and facts, a life estate only passed to Thomas Gould ; that the deeds or contracts with Elijah M. and Orange P. Gould, and payment to them of the consideration-money, vested in Aaron Brown, the plaintiff, the fee simple, and that he is entitled to recover for those interests.
    The defendants’ counsel, on the other hand, insist that under the will the fee simple vested in Thomas Gould, under whom they claim, by conveyances during his lifetime; that no estate either descended or passed by the will to his sons Elijah and Orange, and that the finding should be for the defendants. The referee does not deem it necessary, in disposing of this controversy, to refer again in detail to all the authorities cited by the learned counsel, nor to attempt the task of harmonizing them, nor of pointing out wherein they are or are not applicable to the case.
    What was the primary intent of the testator, as deducible from the words used, and as used in the will, is the governing question ; what quantity of interest, what estate, did he intend to give Thomas Gould ?
    Both parties concede that the will and the codicil are inartificially drawn. The words “my real estate” are employed to designate the surface or right of soil, as distinguished from the coal mines or mineral interest; “children,” “lawful heirs,” “and legal representatives,” it is claimed, are used as interchangeable and synonymous terms; but the signification the tes’ a for attached to the words employed to express his intent must, if ascertainable, be received rather than their exact technical legal sense.
    The codicil obviously forms a part of the will. It does not annul or supersede it. The act of its execution involves the intention to make it a part of the will. It adopts the method of distribution therein. Being a republication, a new adoption of the will, it brings down the will to the date of the codicil. The two parts form one will, and are to be construed as if the testator had inserted in the codicil all the words of the will; Neff’s Appeal, 12 Wr., 501.
    Thus read, it seems clear, and is not disputed, that his intention in the original will was to dispose of his whole estate, both real and personal, giving two-eleventh, of what he designated as his real estate to each of his sons, including Thomas, and to their lawful heirs; one eleventh to each of his daughters, and to each of his children, naming them, and to their lawful heirs one-seventh of “all the coal mines” on any part of his landed property. The intent is clearly and aptly expressed in the fourth and sixth clauses, and implied in the eighth, relative to the division “of the real property,” to give to Thomas Gould a fee simple estate, an absolute, unqualified ownership of and title in the interests thus devised. There is no reasonable ground to infer mistake or misapprehension of the meaning or extent of the words used. Does the codicil reduce the fee simp1 e thus unmistakably intended to be given to an estate for life ? Except by possible implication from the words restraining alienation, there is no creation or substitution of a life estate, as in the cases of Ulrich vs. Stout et al., 35 Leg. Int,, 250, and of Lightner vs. Lightner, Id., 402. Construction, ever the source of controversy in law, as in theology, is especially uncertain when terms of art are employed by laymen. Looking, however, at the whole instrument, the purpose of the testator in the clause in question appears to have been, whilst expressing the intent that the estate should descend exactly as if it were a fee simple to the heirs and legal representatives of the devisee, to fetter that estate with a restraint on the power of alienation. That the precise import of the expression, “fee simple,” like that of “real estate” and “landed property,” in earlier portions of the will, was not apprehended by the testator; that the reasonable construction is, “my intention is not to invest the fee simple or right and power of sale in my sons and daughters, to whom and their heirs I have devised my estate, but my desire and intention are that my sons, as well as my daughters, can not dispose of or alienate the same.” The result of this interpretation of his words is, that the primary intent was to give to Thomas Gould the fee simple; the secondary intent, to restrain the power of alienation. Of course, the right of alienation, one of the essentials of a fee simple, could not thus be withheld; the prohibition was ineffectual, and the rule applies, that when the primary and secondary intent are inconsistent with each other; the primary intent shall prevail. “It will be 'exceedingly improper in any court,” says Judge Lowrie, in Walker and wife vs. Vincent, 7 H., 372, “in construing a devise to a man and his heirs, to endeavor to give effect to the restraint upon alienation by changing the character of the estate to a life estate, with a remainder annexed to it, or with an executory devise over.” The referee therefore finds and reports as conclusions of law :—
    1st. That under the “will and codicil annexed of Jacob Gould, the fee simple to the lands and interests devised to Thomas Gould, vested in him, and by his conveyances the said lands and interests therein passed to the said defendants.
    2d. That no title or interest existed in Orange P. or Elijah M. Gould, ■ or passed under their sales to the plaintiff, and that he -is not entitled to recover in this action.
    3d. That judgment should be entered in favor of the defendants for the lands in controversy, in the writ described.
    This report was confirmed and Aaron Brown took a writ of error complaining of the finding that the will and codicil vested a fee in Thomas Gould.
    
      A. H. Dickson and Wayne MacVeagh, Esqs., for plaintiff,
    cited Neff’s Appeal, 48 Pa., 501; Yarnall’s Appeal, 70 Pa., 341; Ellet vs. Paxson, 2 W. & S., 418; Sheets’ Appeal, 52 Pa., 257; Tyler vs. Moore, 42 Pa., 385; Riehl’s Appeal, 54, Pa., 97; Taylor vs. Taylor, 63 Pa., 481; Curtis vs. Longstreth, 44 Pa., 297; Seibert vs. Wise, 70 Pa.; 148; Stook’s Appeal, 20 Pa., 349; Ware vs. Fisher, 2 Yeates, 578; Gibbons vs. Fairlamb, 26 Pa., 217; Urich’s Appeal, 86 Pa., 390; Guthrie’s Appeal, 37 Pa., 9; Haldeman vs. Haldeman, 40 Pa., 29; Chew’s Appeal, 37 Pa., 23; Findley vs. Riddle, 3 Bin., 139; Stump vs. Findley, 2 Rawle, 168.
    
      Messrs. Samuel Dickson, Alexander T. McClintock, Agib Ricketts and Hubbard J. Payne, contra,
    
    cited Reifsnyder vs.Hunter, 19 Pa., 41; Walker vs. Vincent, 19 Pa., 369; McCullough vs. Gilmore, 11 Pa., 370; McWilliams vs. Nisley, 2 S. & R., 507; Doebler’s Appeal, 64 Pa., 9; Oswald vs. Kopp, 26 Pa., 516; Porter’s Appeal, 45 Pa., 201; Schott’s Estate, 78 Pa., 40; Steiner vs. Kolb, 57 Pa., 123; Quillman vs. Custer, 57 Pa., 125; Physick’s Appeal, 50 Pa., 128; Jametche vs. Proctor, 48 Pa., 466; Kepple’s Appeal, 57 Pa., 211; Criswell’s Appeal, 41 Pa., 288; Edwards vs. Barnard, 84 Pa., 184; Tyler vs. Moore, 42 Pa., 385; Auman vs. Auman, 21 Pa. 343; Price vs. Taylor, 28 Pa., 95; Guthrie’s Appeal, 37 Pa., 9.
   The Supreme Court affirmed the judgment on April 24, 1882, in the following opinion :

Per Curiam.

We affirm this judgment upon the report and opinion of the learned referee.

Judgment affirmed.  