
    *Den ex dem. Wortendyk against Wortendyk.
    A. by bis will, devised specific parts of his real property to each of his three sons, after the death of his wife, their heirs and assigns forever; directing them, however, to pay certain legacies bequeathed to his daughters. He then devised another part of his real estate at N. to all his children together, (enumerating them) their heirs and assigns for ever. Afterwards he bequeaths his personal property to his wife, she allowing to two of the sons £5 out of the same. In the succeeding clause he orders, “ if any of my above named children should die without heir or heirs begotten of their body, then the share of him or her so dying shall be equally divided amongst the survivors of them or their heirs, share and share alike held, that this qualifying clause must be confined, in its operation, to the lands at H.
    Two ejectments depended on the same title, and a verdict was taken by consent, at .Bergen, subject to the opinion of the court, on a case which stated that Frederick Wortendyk the elder, seized in fee of the premises in controversy, and possessed of a considerable personal estate, by his last will .and testament, dated November, 25, 1747, devised and bequeathed as follows : He first orders his debts and funeral expenses to be paid, and then devises his lands to his wife for life; and, after her decease, he bequeaths to his eldest son Eynier, his heirs and assigns forever, his great family bible, for his birthright. He then gives one moiety of a tract of land at Passaic to his son Eynier, and the other moiety thereof to his son Frederick, and to each of their heirs and assigns forever. Flo then disposes of the lands in question in the following manner : — “ I give and bequeath unto my sou Jacob Wortendyk all my farm whereon I now live, lying between the lands of Johannes Ferdon and Isaac Blauvelt, deceased, with two wood lots, lying in the Green-bush, and one wood lot, lying in the swamp between the wood lots of Johannes Ferdon, according to my deeds thereof, and to his heirs and assigns forever, he paying a legacy to his sisters, as is hereinafter specified.” The testator then gives to his daughters Acltye and Clause £140, or £70 each, to them, their heirs and assigns forever. Of this sum £60 was to be paid by the testator’s sons Eynior andt Frederick, the remaining £80 by his son Jacob, in eight years ; the first payment to be made at the end of the first year next after the decease of the wife of the testator. Ho then devises to his said five children “ all my lands at the North Eiver hills, according to my deed thereof, to be equally divided amongst them, share and share alike, and to each of their heirs and assigns forever.” In the next clause, he bequeaths to his *wife “ all his movable estate in fee, first allowing his two sons, Eynier and Frederick, five pounds out of the same.” Then follow these -words : — “ But if in case any of my above named children should die without heir or heirs begotten of tlieir body, then, and in such case, his or her share, so dying, shall be equally divided among the survivors of them, or their heirs, share and share alike.” The testator appointed his wife executrix of his will.
    On the 16th of June, 1762, the testator, by a codicil annexed to the said will, orders and directs that in case the lands so given to his sons should be claimed, all his children should help to defend them.
    May 26, 1762. The testator, for a valuable consideration, conveyed to his son Jacob, one of the lots devised to him by the will aforesaid.
    
      In 1770, the lands devised to Jacob were of the value of £900, and their annual value was £9; in 1747 they were worth £600, and their annual value £8.
    The testator died seized, after whose death Jacob entered on the premises devised to him, and in 1794 (having had but one child, who died before him) made his will, devising the lands he had from his father, to his wife, the present defendant, during her widowhood, remainder to Jacob Blauvelt, in fee.
    Rynier and Frederick survived Jacob, each of whom claim a moiety of the lands in question. Frederick is the lessor of the plaintiff, in the one case, and Rynier in the other.
    The case was argued September term, 1800.
    
      M. Williamson, for the plaintiffs
    The question in this case is, whether the limiting over the estate devised to Jacob Wortendyk by the will of his father, in 1747, in case of his dying without issue, does not create an estate tail in Jacob ?
    Expressions of the same kind have so frequentty occurred in cases that have come before the ablest and most experienced judges, and the construction which they have placed upon them has been so uniform, that it will be unnecessary to select more than a few of the numerous authorities, in which the doctrine that serves as the foudation of the plaintiff’s claim has been solemnly recognized. In the case of Chadock v. Cowley, (Cro. Jac. 695), the language of the devise was almost precisely the *same as that yvhich we are now examining. The testator devised his lands to his wife for life, and, after her death, all his lands in B. to his son T., and his heirs forever, and his lands in E. to his son F., and his heirs forever; and then added — " I will that the survivor of them shall be heir to the other, if either of them die without issue.” The court held that the devise to the sons was an absolute and immediate estate tail, with the remainder limited over. The case appeared so clear that the judgment was pronounced upon the first argument.
    In Den ex dem. Geering v. Shenton, (Cowp. 410,) the testator devised to his grandson S., a tract of land, to hold to him and the heirs of his body, and their heirs forever, chargeable with the payment of eight pounds, annually, to the niece of testator, to be paid her by quarterly payments, during her natural life. But in case the said S. shall die without leaving issue of his body, then the said land to go to the testator’s nephew "W. and his heirs forever, chargeable with the payment of £100 within one year after the said W. or his heirs shall be possessed of the said premises. Lord Mansfield held that the grandson, the first devisee, took an estate tail; that the words, “ in caso he shall die without leaving issue,” qualified the general terms used in the preceding part of the will, and that the case was too clear to admit of a doubt.
    In the present instance, it is- perfectly clear that the words employed by the testator in the first devise to Jacob, aro sufficiently comprehensive and technical to convey the fee; but it is contended, that the subsequent words, “ in case they die without heirs of their body, the remainder to go to the survivors, share and share alike,” narrow the estate previously given, or shew the manifest intention of the testator, that he should have no other estate than an estate tail. The cases cited shew that this is the proper construction to be put on the terms of the will.
    The ground of objection is understood to be, that the limitation over, in case of the dying without issue, is to be confined exclusively to the North River lands. There is nothing, however, either in the will or codicil, requiring or warranting such a restriction. The word share, ex vi termini, means the proportion of the lands devised in the will; no intention of the testator to exclude a part appears in the instrument, nor is such a construction rendered necessary by any grammatical rules. The *same reasons.which induced the father to create an estate tail in one part of the property, and the same principle of law which requires the court to put such a construction on the -terms of the will, are equally applicable to the whole. The only ground upon which this application can be limited to a part, would be, that the qualifying clause should follow the one to which it was to be confined, in immediate succession. This is not, however, the present case; there is another clause intervening, which wholly obviates every difficulty furnished by this rule.
    Neither can the circumstance of charging the land with the payment of a sum of money, affect the question. In dubious cases, where the intention of the testator is couched in ambiguous language, a fact of this kind is entitled to some weight, as evidencing his meaning. It affords, hov?ever, a mere presumption of intention, and when the language is not in itself ambiguous, or its meaning is settled by judicial decisions, there does not exist that uncertainty which is to be removed by technical or strained inferences.
    'Further this charge is not material in this case, because the essential circumstances to give it weight is wanting. The payment being postponed until a year after the property should come into possession, affords a presumption that the testator designed it to be paid out of the annual profits. The yearly value of the lands in 1770, when they did come into possession, was more than the char-ge. Jacob could not therefore be a loser, which is the foundation of the inference which has been drawn by courts from this fact. An additional circumstance is to be remarked, the devise embraced more lands than have been included in this valuation. One of the lots contained in the will was afterwards purchased by Jacob, and the court are therefore without the data to declare that the charge was greater than the annual value.
    One of the ejectments is brought on the demise of Rynier, the eldest son and heir at law of the testator. If the case of Preclerick is doubtful, and the court should hesitate to adopt the construction for which we contend with respect to him, those doubts and hesitations should weigh decidedly in favor of liynier. The rule of law, that an heir is not to be disinherited, unless by express words or necessary implication, lies at the foundation of all the decisions upon wills. It must be proved, then, *that the testator clearly intended Jacob to have a fee in the premises, or the title to the heir at law is perfect and unimpaired. Vaugh. 262. A conjectural intention is not sufficient; it must be such as is sufficient to satisfy the consciences of the court. Cowp. 238, 240, 659. This rule is equally applicable when the devise is made to children as to strangers. In Anslee v. Chapman, (Cro. Car. 159) it was resolved, that an objection which had been urged, that when a testator “ deviseth lands to his several sons, that every one should have a fee thereby, is not law, without his express intent may be collected out of the words; otherwise the law will not construe it to be a fee in prejudice of the heir.”
    
      Aa. Ogden, on the same side.
    At present I shall merely add a few cases to those that have been already cited in illustration of the same principles. Soulle v. Gerard, (Cro. El. 525) is a leading case, and fully establishes the doctrine, that general words in a will may be limited by subsequent expressions, explaining more precisely the intention with which the first wore used. The devise there was to one of four sons, and his heirs for ever; and if the devisee died within the age of twenty-one years, or without issue, the land should be equally divided among the other three. The judges held this to be an estate tail. This case is cited by Viner. Blaxton v. Stone, (3 Mod. 123) is to the same purport.
    With regard to the charge upon the land, no case has gone so far as to consider this as any thing more than a circumstance from which the intention is to be collected. •Wherever the 'estate devised is expressly given, and the ■language is freed from ambiguity, nothing can be deduced ■■from it; nor is it entitled to any weight when the payment is directed to be made out of the profits. The payment here was to be made by instalments, not in a gross sum; and the first instalment was to be paid at the expiration of a year after the devisee came into possession. The intention appears to have been, that he might furnish himself with funds out of the profits of the estate. In Collier s case, (6 Co. 16) the correct rule is laid down. It is there said, that if land be of the value of three pounds per annum, and the testator directs the devisee, that he shall pay for it twenty, thirty, forty or fifty shillings, per annum to another, it is but an estate for life; for he *may pay it out of the profits, and is sure to have'no loss. By this rule we are willing to abide. Gould Jacob, by paying this charge, receive any loss ? The answer is -obvious : when he came into possession the annual value of the hand was greater than the sum 'which he could be called upon to pay. The case of Den ex dem. Balderston v. Balderston, (Cowp. 257, 260) shews that the word share ought to be construed to embrace all that was devised.
    The correct rule to be observed, in all eases wherein it is necessary to fix the construction of words in a devise, is to construe them according to their plain and natural meaning. 8 Vin.Abr. title Devises F. a. pl. 46. They must be construed according to the settled rules of law. Ibid. pi. 14. Where there is no ambiguity or difficulty in the application* of rules, there is no room for conjecture. In Order to extract sense, and to ascertain intention, words may be transposed, ■(1 Salk. 236; '8 Vin. Ab. u. s. pi. 42) but where the design may be made clear without, recourse is never had to these dangerous expedients.
    
      M’ Whorter, contra.
    -In stating the abstract doctrines of the law, there is little chance of any wide difference in opinion; in the application of them to the cases which come under consideration, the same mianimity does not always prevail. Without questioning the soundness of the principles that have been advanced, it may be observed, that there are some other rules for the construction of wills equally authoritative, and, perhaps at least, equally applicable. Wherever the intention of the testator is manifest and clearly expressed in the will, and whenever it is not contrary to the settled rules of law, courts are bound to give it effect; but when the language is uncertain, and different conjectures, as to the meaning may be drawn, of equal plausibility, the sound rule is, to abandon all attempts to discover a design which the testator, evidently has not expressed, and to construe the instrument according to those rules which the common law has provided with regard to other legal conveyances; that is, when the contrary does not manifestly appear, the testator is to be considered as using the words he has adopted in their technical sense. 8 Vin. 181, title Devise F. pl. 8; Ibid. 182, pl. 19.
    If the intention of the testator is to furnish the rule of construction, it is apprehended some hints may be collected from *the different parts of the will, which tend as strongly to shew his design, as those ambiguous phrases upon which so much reliance has beeu placed. Inferences from the latter are so exclusively technical, that to have employed expressions of this kind with a view to them, would evince a degree of legal knowledge that would have saved the court the trouble of this examination, by leading the testator to the employment of the most precise and formal phraseology. The very uncertainty that exists shews that he was not aware of the force that would be given to his words.
    It may be remarked upon this will, that when the testator devises the North River lands, he devises to his children generally; when he comes to the qualifying clause, he makes use of the same term. In the preceding devises, he employs the word son. So it is in the codicil — if any of the lands thus given to his sons should be claimed, all his children should unite in defending them. The same caution is not used when speaking of the lands devised to his daughters; nor does he appear to anticipate the possibility that his daughters would ever be entitled to the lands which he had given to his sons.
    The word share is particularly appropriated to the North Eiver lands, to the exclusion of the others. Share means a proportionate part; all his children were entitled to the benefit of survivorship in these shares. In what property had all the children shares or proportionate parts, which could come within this clause? It was only in the-North Eiver lands. The devises to the sons of specific pieces of property, did no.t give them shares of them, but vested in the particular devisees the exclusive interest. The word is share not shares ; this seems to indicate an idea of equality of right, or reciprocity in deriving benefit under it.
    The leading object of the testator seems to be, to give a preference to his male, over his female issue. The only mode in which this intent can with certainty be effected, would be, to confine this limiting to the last devise; otherwise the daughters have the remainder in tail in the whole estate, besides the £140; while the-estate to the sons is, as to all beneficial interest in them, nothing more than an estate for life. In Vern. 158, it was considered that £380 was near.the value of an estate for life of £70 per annum.
    *Unless the testator designed to favor his daughters, in preference to his sons, an idea utterly at variance with the whole tenor of this instrument, he could not possibly have intended to make such a provision, as is drawn from his words by the opposite counsel. It is said, the true rule of construction on the circumstance of the charge is found in Collier s ease, reported by Coke. We acquiesce fully in the the authority of that case, and consider that the proposition there laid down by the court, that where any loss may accrue to the devisee, by the payment of the sum charged upon land devised, the law will consider the intention of the testator to have been to pass a fee. The authorities cited by the gentlemen on the other side fully establish the soundness of this doctrine, and shew further, that the amount of the loss is perfectly immaterial. The language of Lord Mansfield, (3 Burr. 1623) in the case of Frogmorton v. Holyday, is express to this point. His lordship says, “let the sum charged upon a devise be ever so small, it shall give a fee: but if it be made payable out of the annual profits it is otherwise.” Here it is not payable out of the profits. The same doctrine is again recognized, in its full extent, by the same learned judge, in Loveacres ex dem. Mudge v. Blight, (Cowp. 352) and it may now be considered as one of the best settled principles of the law of devises.
    The devise to Jacob, therefore, of the lands now in dispute, may be considered as conveying a fee simple, both from the apt and technical words employed by the testator in limiting the estate, and from the settled rules of construction in doubtful cases. Any implication to overturn this manifest intention, should be plain and necessary. Aumble v. Jones, (1 Salk. 238). Cowp. 240, 355.
    The only circumstances which in this case can be considered as in the slightest degree warranting such an implication, arises from the last clause in the will, limiting the estate over in case of a dying without issue. That this clause applies to the North Elver lands, which had been devised immediately before, there is no difference of opinion ; nor is there any, with regard to its effect on that part of the estate. The only question is, whether the intention of the testator, that it should also extend to, and include the devises in the preceding and remote parts of the will, is so clear and unequivocal, as to require the court to declare *such a construction necessary to extract sense from, or give consistency to the instrument. The case of Adams v. Clark, (9 Mod. 154; 2 Eq. Ca. Ab. 557) is an authority to shew, that a qualifying clause in a will may be construed to apply only to parts of the instrument, when an extension of it to others would be contrary to their terms and meaning. The same control was exercised in Richards v. Cock, (2 Eq. Ca. Ab. 558) in order to prevent repugnancy. 8 Vin. Ab. 285, M. pl. 23, is to the same point. The doctrine, that the heir is not be disinherited without express words or necessary implication, and that all doubts as to the intention of the testator should be resolved in his favor, is scarcely applicable to a case in which that heir, abandoning his title by descent, comes forward as a claimant under the will. lie has grounded his claim' upon the terms of the devise, and upon them he must rest; he comes forward as a volunteer, founds his demand upon his title as purchaser, and therefore is entitled to no more favor than any other purchaser or volunteer.
    
      R. Stockton, on the same side.
    The lessor of the plaintiff claims the premises in controversy, as a remainder limited after a devise in fee tail. On the construction-given to the will by the counsel for the plaintiff, and under the cases cited by them in the argument,' unless the estate devised to Jacob was a fee, it was an estate tail, remainder to the other children of the testator, as survivor’s. Chadock v. Cowley and Den v. Shenton, place this beyond a doubt. The circumstance, that Rynier is the heir at law, is of no importance, and the doctrine, that the heir is not to be disinherited without express words, is entirely foreign to the case. One who takes under a will recognizes the entire validity of the instrument, and is precluded from questioning its legal operation. He divests himself voluntarily of every other title, and, coming before the court in the character of a volunteer and purchaser, places himself upon an equal footing with every other volunteer and .purchaser. Eearne on Cont. Rem. 145-6.
    It seems to be acknowledged, on all hands, that this is a question of intention; and it may not ;be superfluous to remark, that to consider the testator as having employed a restrictive clause of this kind with a view to the inference which might he drawn from it, would be to presume him acquainted with the refined *and technical rules of construction, and at the same time ignorant of the most familiar doctrines of the lawn This observation is not designed to impugn the rule by which courts have considered themselves as bound to narrow down a preceding devise in fee to one in tail; it has become a settled rule of law, and a departure from it at this period would be fraught with evil and inconvenience. But, under such circumstances, the rule ought not to be carried further than authoritative precedents require it to be done, nor should new doctrines be introduced under color of others, in themselves not wholly free from objection. There is no case to be found precisely in point, and the court are in a measure left to frame a rule for the occasion. In Bulst. 61, a clause of this nature was rejected by the court, as repugnant and void.
    In the courts of Great Britain, considerations of a political nature have frequently been resorted to, as sufficient to influence the decision in doubtful cases; and, indeed, many of the settled doctrines of the common law have originated in views of expediency. If the same principle is to be attended to here, our courts ought to lean strongly against creating estates tail by implication. They are discordant with our system of government, and the legislature, acting upon this idea, have virtually abolished this species of estate.
    The words of the clause devising the premises now in dispute are sufficient to carry the fee, and are, in fact, the specific terms which the law has prescribed, as the most apt to convey the highest possible interest. The devise is to Jacob, his heirs and assigns; the word heirs includes every possible description of persons who could claim under that character; the word assigns seems clearly to intimate the intention of the testator, that the power of alienation should be unrestricted. In this respect, the case is stronger than any in the books where the word heirs alone is used, a word which, in common discourse, has not always the same unlimited meaning as the law has attached to it, and which, in the cases cited, the subsequent expressions shew the testator to have employed in its confined sense.
    In Morgan v. Griffiths, in Cowper 232, the devise was to the grandchild expressly for life, and after his death to his heirs and assigns; in this case it is expressly in fee, and the power of alienation, *implied by the word asssigns, shews that the testator intended to give the fee.
    The distinction contended for, in consequence of this super-added term, is recognized in 8 Vin. Ab. 243, Al' b. pi. 21, where the devise in the first instance was in fee, to which a restrictive clause was annexed, shewing the intention of the testator to limit it to the heirs of the body; but, notwithstanding this restriction, it was held, that the first devisee took the fee by virtue of a power of disposal inconsistent with a lesser estate. In the present case, this power is necessarily implied in by the word assigns, which would otherwise be altogether senseless.
    The intent of the testator is therefore' manifest, and the legal effect of the words not less clear : under such circumstances, it is contrary to every rule of law to permit general or doubtful words, subsequently introduced, to alter or control the previous express devise. 7 Bac. Abr. 342; Shepherd’s Abr. p. 11, Testament
      
    
    The question then is, whether the subsequent clause is so evidently restrictive of this devise as to narrow it down to an estate tail ?
    1. The court may reject it as repugnant, if it appears contrary to the general intent of the will. 2. They may confine the application of it to the North River lands.
    If the testator attached any meaning to the word assigns, and it is not to be presumed that he employed any word ■without some design, the qualifying clause has been shewn to bo repugnant to this clear intent, and may therefore be rejected altogether.
    But full effect may be given to it, consistently with the other parts of the will, by confining it to the North River lands. The testator had just made a disposition of this part of his property; the circumstance was fresh in his recollection; ho had divided it into shares among his children. The terms shares, and children, when used so immediately afterwards, evidence his intention to apply them to that part of the will in which he had so recently connected them. With respect to them, all his children were equally provided for — their shares were equal, the benefit of survivorship would be equal. Agreeably, therefore, to this intent, and to grammatical construction, he must be presumed to *have included no other part of the estate. Spirt v. Bence, (Cro. Car. 368) favors such a construction.
    The will displays gross ignorance on the part of the testator or the scrivener : allowances are to bo made for this, and where a clear devise of an absolute estate has been made, it ought not to be destroyed by any inferences or general expressions. General clauses ought not to bo extended. In Piggot v. Penrice, (1 Eq. Ca. Ab. 209, pl. 13) A. devised in the following manner: “Item. I make my niece executrix of all my goods, lands, and chattels;” the testator had a real and personal estate, but no leases or interests for years in any lands whatsoever; and the question was, whether any, or what estate passed in the lands by this devise ? The Lord Chancellor was clearly of opinion, that the real estate did not pass, and that the word lands was not, as was objected, useless and to be rejected; for that, in all probability, there might be rents in arrear in those lands which would pass to the executrix. So in another case, reported in 2 Eq. Ca. Ab. 328, pl. 2, where one seized of lands in fee, made his will, and thereby gave several legacies, and then bequeathed in these words : “ I give the rest of my estate, chattels real and personal, to I. S.”'it was resolved by Harcourt C. J. that nothing but chattels passed by the word estate. In Chester v. Chester, Ibid. 330; 3 P. Wms. 56, it was held by the judges, that where a general clause could be confined, it ought to be done.
    The charge upon the land,’ is however a decisive circumstance in favor of the defendant. This charge cannot be considered as an annuity, as seéms to be the idea of the counsel for the plaintiff. It is a gross sum, payable by instalments, attached by the testator to the devise, in such a manner as to become a personal debt from Jacob, fixed upon him by the very act of taking possession under the will. The moment he entered, he became legally liable for the whole amount, and had he died immediately after, his personal representatives were bound to make it good. In this view of the case, it is immaterial whether we are to take our estimate of the annual value of the land according to the uniform practice, as it was at the date of the will, or agreeably to the doctrine, now for the first time heard of, that the will is to be construed according to circumstances, as they existed when Jacob entered, more than twenty years after the date of the instrument.
    *This construction is placed beyond a doubt by the case of Reed v. Hatton (2 Mod. 25) where the testator devised to his son R. a .property of the annual value of £16, adding the following clause: “ -which houses I give to my son R. upon this condition, that he pay unto his sisters five pounds a year.” The court adjudged that R. took a fee. The cases are precisely similar, except that the chance of loss was much less in the one cited, and the devise was not expressly in fee ; but the court considered the possibility of loss, however pernote, as the true point of inquiry, and put the case of a devise to A. of £100 per annum, he paying to B. 20s. where it was not likely the devisee will be damnified, but it is possible he may. This case is cited, with approbation, by Mr. Justice Wilmot, 3 Burr. 1542.
    
      Oar case is that of an express devise in fee; we do not rest our claim upon the circumstance, that a charge is annexed; we resort to this fact, as corroborating our title by destroying the implication which it has been attempted to draw from general expressions in remote parts of the will. In ejectments, the plaintiff must recover by the strength of his own title; he must make it apparent that the title is clearly with him, and in cases of doubt, particularly where equitable considerations do not weigh in his favor, no shadow of uncertainty should be suffered to remain.
    
      Ogden, in reply.
    The court is bound to adhere to plain words and technical expressions in a will, and possible intentions are not to be permitted to weigh, unless clothed in language which will warrant tho construction.- What ho might, perhaps, have designed to do, is not the question, but what is the legal operation of the words used ? The principal difficulty appears to be in settling the application of tho last clause of the will. In its terms, it is not confined to any particular devise, and we are therefore compelled to have recourse to conjecture to ascertain the intention of the testator. It has been contended, that it should be restricted to the devise of the North Eiver lands, but the circumstance that such a construction would operate in favor of the defendant’s title is, perhaps, the chief foundation of this idea. The testator had divided his estate into different parcels; he had made specific devises to his three sons, and bequeathed legacies to his daughters. He then gives to them, collectively, the remainder of' his estate. In the concluding part of *his will, anxious to preserve the property among his own children, he limits the shares before given to the survivors of those who may happen to die without leaving issue. This limiting clause relates to, and qualifies some preceding disposition which ho had made, and the question is, to what does it extend ? Had the clause disposing of his North Eiver estate immediately preceded this restriction; had he said the shares just before divided among his children, some ground would have existed for the construction contended for. There is no difference of opinion with respect to the fact, that it was not intended to embrace the next preceding clause, where he disposes of his personal estate to his wife, she paying thereout £5 to two of the son?. If it did not apply to this clause, there seems no assignable ground for selecting any other to which it must apply, and confining its application to that. The rules of grammatical construction and the doctrines of common sense are equally outraged by such a capricious construction. In Den v. Balderston the expression “ the rest of my surviving children ” wras held to include all, though there were strong circumstances to shew that the eldest son was not intended to be affected. So in Smith v. Doran, in the Exchequer, cited in the argument of the preceding case, where the testator devised one-fourth part of his property to his eldest son, who was of age at the time; and the other three-fourths to his three younger sons, who were all under age; and then added, “ but if any of my said children should die before twenty-one, then their respective property shall be divided amongst all my children, share and share alike." One of the younger children died, and the court held the elder was equally entitled with his younger brothers. The arguments drawn, in the present case, from the apparent intention to preserve equality and reciprocity, were not of sufficient weight to induce the court to restrict the operation of this limitation to those among whom it might exist. The terms of the codicil have been referred to, where all the children are directed to assist in defending the sons’ lands, should they be claimed: this language is, at least, equally forcible in favor of our construction, for why should the daughters contribute to the expense of defending property in which they had not even a contingent right, however remote.
    The .clause is not repugnant to the first devise: it is merely explanatory of the meaning of the testator, and a similar form *of words was so held in Soule v. Gerard. In Morgan v. Griffiths, the word assigns, to which so much importance has been attached, was not permitted to control the intention of the will, or the strict and legal effect of its words; nor does it appear to have been noticed in the argument by the counsel.
    The charge in this case is clearly payable out of the land. The testator expressly postpones the time of payment until one year after the devisee should come into possession. It is fair to presume that he looked forward to a higher value at that time than when he made his will. Iu the cases cited, the time of payment is not postponed. One circumstance, however, is conclusive upon this head — we have no estimate of all the lands devised; that part which was purchased by Jacob of his father is wholly omitted in the valuation, and, whether it be utterly worthless or not, the court cannot take notice of any fact not appearing in the case.
    The importance attached to the particular phraseology employed by the testator, is founded upon the idea, that he was acquainted with its legal effect, a supposition negatived by every part of the will. Every thing disposed of, even the old family bible, and the personal property is given in the same form of words, to the devisee, his heirs and assigns. It is manifest the testator was not aware of the meaning of the expression.
    
      
       See Jones v. Colbeck, 8 Ves.jun. 42, Accord.
      
    
   The opinion of the court was delivered in November term 1800, by

Kiksey, O. J.

(After stating the facts of the case.) — -A great part of argument turned upon the question, whether Jacob Wortendyk took an estate in fee or in tail under the will of his father ? and this seemed to depend in a great measure upon another, viz., whether the latter clause in this will, declaring, that in case of the death of any of his children without issue, the survivors or their heirs should take the share of such children so dying, be applicable to the North River lands only, or extends to the preceding devises, and embraces that to Jacob, under whom the defendant claims ?

In the outset I will remark, that little or no importance is to be attached to the use of the word assigns in this case, a circumstance upon which a considerable part of the argument was founded. I am not aware of a single case, wherein a certain interest. *having been given in a will, this word has been held to enlarge, or in any manner to affect this interest. Every interest recognized by the law, unless under particular circumstances, is the object of an assignment. It belongs essentially to every species of interest or property, and the introduction of the term is therefore, in every case, superfluous and inoperative in a conveyance of property. The first section of Lyttleton shews that this word has no enlarging power in a conveyance; and Coke, in his commentary, fol. 9, b., shews that it is the same in case of a will. The argument, therefore, resting upon this basis, is entitled to no consideration.

As an evidence of intention, I am disposed to view it in the same light; it is annexed indiscriminately to every clause in the will, and seems to have been used rather as a word of form, than as one to which the testator had attached any definite meaning. The intention, to which we are to look in settling a question upon a will, is not a forced, conjectural, or possible intention, but such as, from the whole tenor of the instrument, appears to have been in the mind of the testator, whether clothed in technical language or not.

Equally unimportant is. the argument raised on the present occasion, from the word faying. This word is undoubtedly, in some instances, amply sufficient to carry the fee, where the other parts of the will do not give such an estate in express words, or by necessary implication. It will sometimes enlarge an estate which the testator has in so many words called an estate for life, when a reasonable doubt exists as to what may be called the general intent of the testator. In this case, the words of the first devise carry a fee; if they are clear and express, and not limited by any subsequent expressions, they can derive no additional strength by inference, from the circumstances of the charge. If the subsequent words are sufficient to control and narrow down the express devise in fee to an estate in tail, they surely must have the same force in qualifying that which is built wholly upon inference and conjecture. It is only in doubtful cases, and to ascertain an uncertain intention, that this circumstance can be permitted to weigh.

The plaintiff, acknowledging that the terms of the first devise are sufficient of themselves to carry the fee, considers them as afterwards limited by the restricting clause, which extends, as is ^contended, to all the antecedent devis’es, and explains the previous devise to Jacob. This is the point upon which the case hinges, and which it becomes important to examine with care. Some preliminary observations will render this investigation more easy, and the determination of the question more satisfactory.

In the first place I remark, that it is a clearly settled rule of law, that wherever a testator makes clashing limitations in his will, or whenever it becomes necessary that either a particular or general intent should give way, courts will and ought to consider the latter as countervailing the former. Robinson v. Robinson, 1 Burr. 38; Roe v. Grew, 2 Wils. 322; Den v. Puckey, 5 Term Rep. 303; Roe v. Rivers, 7 Term Rep. 272. This principle is founded in reasou, and lias long been recognized in the law.

Another rule adopted in the construction of devises, deserves notice. A testator in using technical words, does not always understand them in a strictly technical sense. This is frequently the case with the word heirs, which in many instances, in vulgar parlance, signifies only children. When ibis word, therefore, occurs in a will if must first be ascertained, whether by it the testator intended that sue-cession of persons who come under the denomination of heirs? If he did mean it in this general and technical sense, he never can be permitted so far to control the rules of property, as to enable one taking under the heir to take in any other manner than in the quality of heir; that is, he must take by descent, and not by purchase. Jones v. Morgan, 1 Br. Ch. Rep. 206, 220. The same rule is to be observed when' the word issue is employed. Erom this principle, therefore, it results, that an express devise in fee or for life to the first devisee is a point wholly immaterial; and whether he shall take such estate as is expressly given, must depend upon the subsequent words, which may either enlarge or narrow the first devise.

These positions.must be assumed as the settled doctrines of the law, and therefore, notwithstanding the original devise to Jacob, clearly was sufficient of itself to carry a fee; yet if the last clause in -the will did actually apply to and .restrict this general language, the intent to be collected from the whole instrument is clearly, that when Jacob died without issue his surviving brothers and sisters must take. The general intent must prevail.

*This brings the case which we are to decide within narrower limits, and renders it, as was correctly remarked at the bar, altogether a question of intention. My mind has wavered in laboring to ascertain this intention, and to extract a definite meaning from an instrument, evidently -written by a man totally ignorant of. the meaning of language, who appears to have got by rote some technical' expressions which he -had, perhaps, heard were important, and who scatters them ynth a profuse hand where they might be necessary, and where they tend rather to confuse and hide, than to illustrate his intention. In almost every clause of the will, those expressions which are used to convey a fee in real estate in conveyances at common law', are introduced without discriminating between the different kinds of property which happened to be under consideration; and the old family bible is given to his son Rynier, his heirs and assigns for ever. Under such circumstances, the safest, and, perhaps, most infallible rule will bo to presumo, that whenever he did make use of apt and proper words, he intended them to be construed according to their legal meaning. In this rule wo may arrive at certainty >' once abandon it, and we are thrown from conjecture to conjecture, from uncertainty to uncertainty.

After the fullest examination which it has been in my power to give to this will, I am satisfied that the latter clause providing, that in case of the death of any of his children without issue their proportion to go to the survivors, must be confined to the North River lands, and does not include the property previously disposed of specifically to his sons. That it therefore does not affect or control the previous devise to Jacob, and that the lessor of the plaintiff cannot recover in the present ejectment.

The design of the testator, as collected from the entire will, seems agreeable to the general custom prevailing in New Jersey, to give the real estate to his male descendants who bear his name, and keep up the family, and to provide the daughters with portions payable out of the real property given to the sons. The North River lands do not appear to have been so far improved as to bear the name of farm, and probably were a recent acquisition by the testator, which he was not particularly anxious to retain in the family. It forms, however, evidently an exception to the general disposition which he made, and his general intent to confine the real estate to the male children. The implication therefore is, that in the controling clause he meant to extend the daughters’ interest no further; that ho had no design of running counter to the obvious intention of the former devises, but merely to superada a clause to the disposition which he had so immediately before made.

It must be remembered, that, at the time of the making this will, the daughters were not entitled, under our laws of descent, to any portion of the real property. With this circumstance we must presume the testator acquainted; and he must therefore have known that it required an express devise to them to entitle them to any proportion of his land. The express devise is made of the North River lands, but not being made of any interest in the remaining property, the inference is almost irresistible, that he did not contemplate their taking it in any contingency. There is surely, however, no ground to infer that he designed to prefer the daughters to the sons, as may be the case, if the construction of the plaintiff is correct.

To consider this clause as controling the devise of the homestead, would be to impose a burthen of £80 on these lands, to be paid to the daughters. By annexing this charge, there is a possibility of a loss to the son, which we cannot presume was the. intention of the testator, and that the daughters, after receiving this payment, should, in any possible contingency, receive also their share of the land; a supposition so unreasonable that we cannot imply it under the circumstances of this case. It would render Jacob, for ten years after he came into possession, a mere servant or agent for the daughters, without remuneration,.and possibly with loss, and then narrow down his interest to a precarious tenure during his life. This implication is in every respect so unreasonable, that if the words would bear another meaning we should consider ourselves as bound to reject it.

Further, if the testator did design to establish that equality, at least in favor of his daughters, can it be .presumed that he would have left his intention veiled with so much apparent caution ? The great and valuable parts of his property had been disposed of, and he would, in that part of his will, have intimated his design of limiting the interest of his'sons. No such view, however,-appears, until he comes to the Nprth River lands, which it has been shewn, in one particular, are disposed of in a *different manner, and, as we think, are, in this respect also, subject to a peculiar and distinct limitation.

Again, if this restricting clause is not confined to the North River lands exclusively, it must embrace and control every preceding devise. There is no ground for excepting the devise to Rynier or Frederick, or the legacies to the daughters, and the word share is equally applicable to all. The family bible, the £140 bequeathed to the daughters, the £5 out of the movable property, must all be subject to the limitation, and to a division among survivors. It cannot place the absurdity of this construction in a more striking point of view, to add, that one of the daughters was a married woman, and her proportion of tho legacy was accordingly payable to her husband. Can it be presumed that the testator intended that he should refund in any contingency ? The conclusion flowing from these circumstances is strongly corroborative of the idea, that the qualifying clause was not designed by tho testator to apply to the whole will.

When, moreover, it is considered that the North River lands alone are exempted from any burthen or pecuniary charge, and that therefore no loss could accrue from limiting them in tail, and that, by thus confining the application of the qualifying clause, every word in the will will have its use, and none be rejected, there can exist no reason for unnecessarily extending it further.

But if tho intention remained dubious, as there is a clear and absolute fee once given, this ought to be preserved, until destroyed‘by words as express, and an intention as plain, as that by which it was created. On tho whole case, therefore, viewed in every light in which it could be brought under consideration, we are of opinion with the defendant.

Judgment for defendant. .  