
    Carr and Wife vs. Estill.
    APPEAL FROM FAYETTE CIRCUIT.
    A testator devised “to Mary Baker Didlake and her children” a tract of land; at the time of the devise, the devisee, Mary, had ns children; she afterwards had one child: Held, that Mary B. Did-lake took an estate for life, and the child the remainder.
    The facts of the case are fully stated in the opinIon of the eourt. — Rep.
    
      Robinson Sp Johnson and C. D. Carr for appellants—
    The clause of the will out of which this controversy arises is in these words: “All the remainder of my property, real and personal and mixed, I now have, or may have, or may be coming to me, of every kind and description, I give to my beloved wife to do with as she pleases, except the land I now own; that part or parcel where my house sets, together with the portion cut off by the turnpike and adjoining George Clark’s, I bequeath to Amanda F. Estill, and at her death to her son, Robert F. Estill; and the remainder, which includes the Nicholas tract, which I bought of him, together with the portion cut off by the'Dudley tract, by the turnpike and the Bryant’s road, I bequeath to Mary Baker Didlake and her children.”
    ■ At the death of the testator, Mary B. Didlake was an' infant, unmarried. She subsequently married C. D. Carr, and had one child.
    The appellants contend that an estate in fee passed by the devise to Mary Baker Didlake—
    1st. Because by the legal import of the words used by the devisor . an estate tail was created, which by force of the statute is converted into an estate in fee simple. It was conceded by court and counsel in the court below, that the word children haye been, and must necessarily be, construed to mean the same thing as heirs or issue; and a long list of English authorities might be cited to establish the proposition that a devise to a man “and his children, or the children or the issue of his body,” will, if he had no children at the time, vest him with an estate tail. The court is referred to the leading cases. (Field’s case, 8 Term. Rep., .17; 3 Term. Rep., per Butler Judge;: Fern on Contingent Remainder, 202, and notes, 3 Am. from 8th London ed.', by Butler.) In 1 Vezy, 201, Lord Hardwicke says, that “children bear a co-extensive sense with issue.” (2 Black. Com., page 45, note 20; lb., 381, note 22, and authorities there cited.)
    In Cruise Digest, 4 Am. ed., by Huntington, title 38, chap. 12, page 258, ml. 6, sec. 27, we find the following: That “where lands are devised to A and his children, or to A and his issue, A having no children at the time, A will take an estate tail, because it is clearly the intention of the testator not to give A an estate for life only, but that his children should be benefited by the devise, and they cannot take as immediate devisees not being in esse at the death of the testator, nor can they take by way of remainder, the devise being immediate.” Besides these English cases, the following American authorities are referred to: 1 Pick. 147; 3 lb. 360; 3 Sea.rg. fy Raiole, 470; Roper on Leg., 1 Am. from 3 London ed., chap. 2, sec. I,page 69. Such is the construction of the devise at common law, or “as the law aforetime was,” in the language of our statute docking entails.
    There is no intention shown in any part of the will to give Mrs. Carr less than a fee in the land.
    The rule in Shelby’s ease has nothing to do with the construction of this devise; but it should be construed in view of the rules of construction of legal instruments in England, Virginia and Kentucky at the date of the act of 1796 ; and for those rules of construction the court is referred to the leading cases in Virginia of Hill vs. Burrows, and Tate vs. Tolly, 3 Calls Rep.
    
    2. We maintain that upon a fair construction of the whole will, the testator shows a clear intention to> pass afee simple estate on the land. The words child or children in England are not so apt or strong as words of limitation as the word heirs. This was the result of the law of primogeniture, but in Kentucky an old statute and the Revised Statutes use the word children or child in lieu of the word heirs or heir, in the statute of descent and distribution, and all the children are heirs. It is clearly inferable that in this clause the testator intended to use the word children as meaning the same as heirs. This, as has been decided in the case of Lackland vs. Downing’s heirs, 11 B. Mon., 32, that a devise to A and his children forever passed a fee simple.
    It is to be observed that the testator makes no devise over of the estate, in case of a failure of children of the devisee. And there is no residuary clause in the will or any of the codicils, making any provision for a reverting or falling back of the estate, or any part of it, which was devised. The testator clearly intended to dispose of his whole estate.
    . The testator had, by appropriate words, disposed of another part of his estate in the way which the appellee insists that this shall pass, viz: that to Mrs. Estill and at her death to her son, Robert Clifton Es-till, showing that he knew what were the appropriate words to be used to pass an estate for life, with remainder over. And it is fair to presume that if he intended only to pass a life estate to the devisee with remainder to her children, he would so have expressed himself.
    If the words her children were stricken out, and the words her heii s substituted, would the court hesitate to say that a fee passed? We suppose not. We think the Circuit Court erred in its construction of the devise.
    No brief for appellee on file.
    
      October 15.
   Judge Crensiiaw

delivered the opinion of the Court.

Clifton R. Ferguson, on the 28th day of September, 1847, made a will by which he devised “to Mary Baker Didlake and her children,” a tract of land in the county of Fayette. At the time of this devise, the devisee was unmarried, and without children. She has since married and has one child, and her husband, Carr, having sold the land to Estill,'and his wife being willing to unite with him in conveying the land, the question is presented whether Carr and wife can convey an absolute fee simple estate in the land to the purchaser.

It is stated in Powell on Devises, 494, as a rule ©f construction in England that where lands are devised to a person and his children, and he has no children at the time of the devise, the parent takes an estate tail. By our law an estate tail is converted into a fee simple; so that this rule of construction would give to Mary Baker Didlake an absolute fee in the land, and any children which she might thereafter have would be cut off, and could take no interest under the devise. This English rule of construction was adopted in order to effectuate the intention of the testator. For, as it is said, “the intent is manifest and certain that the children should take, and as immediate devisees they cannot take, because they are not in rerum natura, and by way of remainder they cannot take, for that was not his intent, for the gift is immediate, and therefore such words shall be taken as words of limitation.” Now, although, the words abstractly and literally import an immediate gift, not only to the devisee in esse but to his or her children also; yet if there be no children at the time, does it necessarily follow, as seems to have been supposed, that it was not the'testators intent thatthe children should take by way of remainder? We think not. But whatever may have been the legitimacy of such a conclusion in England, where in general more precision and particularity were observed in the creation of remainders than, in this country, we are of opinion, that with us it does not necessarily follow, that because the words literally and abstractly import an immediate gift, it was not the intention of the testator to give a remainder interest to the children. In general, the word “children” is a word of purchase and not of limitation, and as it was acknowledged by the jurists of England that the word, in its present connection, manifested a certain intent on the part of the testator, that the children should take under the devise, and as they would do so there, if the word were construed to be a word of limitation, and not a word of purchase, it was natural and easy for the English judges to make an exception to the general acceptation of the words, and so construe it as to render the estate devised an estate tail; and as this was a convenient mode of giving effect to the intention of the testator, the courts of England adopted it, without perhaps bestowing much consideration on the question, whether the testator might not have intended to give a life estate to the person in esse, remainder to the children, which might equally have effectuated his intention. However this may be, it is clear that they adopted their rule of construction to promote the intention of the testator. And our law having converted estates tail into absolute fee simple estates, it is equally clear that if we adopt the same rule of construction, the acknowledged intention will be frustrated and defeated, as the children could then take nothing under the devise. In order, therefore, to effectuate the acknowledged and manifest intent of the testator, it is obvious that a different rule of construction must be resorted to in this state.

A testator de: vised to “Mary Baker Didlake and her children” a tract of land. At the time of the devise the devisee, Mary, had no children; she afterwards had one child: Held, that Mary B. Didlake took an estate for life, and the child the remainder.

It has been observed that the words of the devise, abstractly and literally, import an immediate gift not only to the devisee in being, but to those not in being. • But there being no children in esse at the time of the devise, it could not have been the intention to give an immediate estate to them, for that were impossible. And as the words of the devise, as conceded by all the authorities, manifest a clear intent that the children shall take, the only consistent and rational construction is, that the testator intended the devisee, in being at the time, should take a life estate, remainder to the children. A slight change in the phraseology of the devise will manifest the propriety of this construction. Suppose the testator had used the words, “to Mary Baker Didlake and the children she may bear,” (which was obviously his meaning,) would it not be clear that, as there were no children in being at the time, and might not be at his death, he intended to vest an immediate estate in Mary Baker, and a future one in her children.

It necessarily results that as the children must take under the devise, if effect is given to the intent, and as it is impossible for them to do so in presentí, they must take in futuro. The reason of the English rule of construction failing in this state, the rule itself must fail, and the necessity is imposed upon us of resorting to a different rule of construction to carry out the intention of the testator. And the construction which we have given to the words of the devise is, as it appears to us, rational and natural. The mother, and also the children she might have, being objects of the testator’s bounty, and there being no children in esse at the time of the devise, who could take jointly with the mother according to the literal import of the devise, we conclude that the intent was to give the mother a life estate, and the remainder to the children.

Wherefore, the judgment is affirmed.  