
    Hoge against Hoge.
    In Error.
    THIS was an ejectment in the Common Pleas of Cumberland county, for six-sevenths of a tract of land, which the plaintiffs claimed to hold in common with the defendant, as .heirs of their father, the Rev. John Hoge, who was devisee of his father John Hoge, the elder. On the trial in the court below, the following special verdict was found.
    “ The jury find, that John Hoge the first; and grandfather “ of the plaintiffs and of the defendant, was seised in his de- “ mesne as of fee, in his lifetime, of, and in the premises “ mentioned in the writ and statement in this cause, and being “ so seised, made his last will and testament, on the 27th day “of September, 1748, (prout will) and on.the 29th of the “same month made a codicil in writing to the said will, “ which will and codicil are duly attested, agreeably to law, .“ (prout codicil). That John Hoge the second, and father “ of the plaintiffs and of the defendant, and one of the devi- “ sees in the said will mentioned, was the oldest son of the “ said John Hoge the testator, who died seised of the lands “ in the writ in this cause mentioned, some time in the year “ 1748. That the said John Hoge the second, and devisee “ in the said will mentioned, entered upon the premises to “him devised, and improved .the same, agreeably to the “ terms of the said will; and that John Hoge the seeond, and “ the devisee had issue the plaintiffs and John L. Hoge the “ defendant his oldest son. That the said John L. Hoge the “ eldest son of the devisee, was bom after the making of the “ said last will and codicil, and after the death of the testa- “ tor, and before the suffering of the common recovery by “ the said John Hoge the second, and the devisee under the “will; and that on the 12th day of• January^ 1799, in due “ form of law, a common recovery was suffered by the said “ John Hoge the second, and devisee in the said will, in the “ Court of Common Pleas of Cumberland county, and that “ the deed to lead the uses of the said recovery was to the “ use of the said John Hoge, the recoveror in fee. And that 14 the said John Hoge the second, afterwards made his last 44 will and testament in writing, duly proved, &c. and added 44 two codicils thereto, duly proved, &c. That the said John 44 Hoge the second, died and left children the said John L. •“ Hoge, the defendant, and the plaintiffs. • But whether the “■plaintiffs are entitled to recover, the jury are ignorant, &c.”
    
      Testator devised in the following manner: " I give and bequeath to my son, J. H., 137 acres of my land, adjoining, &c. provided he, my son J., lives and improves upon said land and enjoy it, and if my son shall have a son of a legitimate issue, that said son shall enjoy the' aforesaid land at his father’s decease; and that my son J. shall have no power to sell or dispose of said land by seal.” Testator then devised all his other rpal estate to three other sons, to be equally divided between them; and then directed that if either of his sons (naming them all) should “ die leaving no issue, the surviving persons, or their issue, should have their equal parts of the deceased’s part.” J. H. entered on the land, after the birth of his eldest son, J. L. H. suffered a common recovery to the use of himself in fee.
    
      Held, that on the decease of J. H., J. L. H. was entitled to the land, to the exclusion of the other children of J. H.
    
      The question arose upon the will of John Hoge the grandfather, the material part of which was as follows: 44 As 44 touching such worldly estate wherewith it hath pleased 44 God to bless me in this life, I give, bequeath, and dispose “ of the same in the following manner and form. Imprimis, 141 give and bequeath to my son, John Hoge, one hundred and 44 thirty-seven acres of my land, adjoining James Silver’s line, <4 leading across, running a parallel line with James Silver’s 44 and my line, provided he, my son John, lives and improves 44 upon said land, and enjoy it, and if my son shall leave a son 44 of a legitimate issue, that said son shall enjoy the aforesaid 44 land- at his father’s decease; and that my son John shall 44 have no power to sell or dispose of said land by seal. Item, I 44 give and bequeath to my sons, Jonathan, David, and Benja44 min, all my other real estate, to be equally divided amongst 44 them, and Jonathan to have his part next the creek, inclos44 ing the lower spring, and David to have his part in the 44 upper side of my land, and Benjamin to have his part 44 where my dwelling-house stands, and if either of my sons, 44 (viz.) John, Jonathan, David, or Benjamin, shall happen 44 to die, leaving no issue, that then the surviving persons, or 44 their issue, shall have their equal parts of the deceased’s “part.”
    
    The testator left a widow and four daughters, to whom he gave small legacies, to be paid out of his personal estate; but not connected with the devise of the land to his sons.
    The will and codicils of John Hoge the second, made no disposition of the land in question.
    Judgment was given for the defendant, in the court below, on which the plaintiffs brought their writ of error.
    The case was argued in this court at the last Term, and held over for advisement.
    
      Carothers, for the plaintiffs in error.
    It might fairly be contended, that John Hoge the second, took a fee simple by the devise, on account of the condition prescribed, of his improving the land; but our construction of the will is, that he took an estate in tail.-male, with remainder to himself in tail-general, — remainder to his surviving brothers, or their issue, in tail-general.
    It does not appear with certainty, what was the testator’s intent as to the estate which his son John should take, for none is expressly limited to him; but if the devise to him had been for life, and from other parts of the will it were clearly to be seen, that ,the testator meant to create an estate-tail, the particular would be made to yield to the general intent. The restriction from selling is applicable to an estate-tail as well as to one for life ; and whatever may have been the design of the testator as to the first devisee, he evidently wished the land to descend in the male line. He had no particular son of John the second in view, for none was born till after the death of John the first.
    Where the will speaks of a dying without having issue, an indefinite failure of issue is intended, for on that event it limits the estate over to the survivors or their issue. He cited Dodson v. Grew.
      
       James' Claim.
      
       Wilde's Case.
      
       By field's Case.
      Anonymous.
      
       Robinson v. Robinson.
      
       Langly v. Baldwin.
      
       Dubber v. Trollope.
    
    
      Stephen Duncan, for the .defendant in error.
    The devise to John the second is for life expressly; for the estate is given over to another at his decease. John the third took a contingent remainder in fee simple. No formal words are necessary, in a will, for passing a fee; the word u estate” is sufficient, and where after an estate for life a remainder over is limited by general expressions, it will be construed a fee. The devise here to John the third, is that he should enjoy the land at his father’s decease, and “ freely to be possessed and “ enjoyed,” will carry a fee.
    The words in the will, “ if either of my sons shall happen “ to die leaving no issue,” mean issue living at the time of the death; for the testator- gave Jonathan, David, and Ben-
      
      j dikin' “ all his ofhér real estate, fp be equally? divided,” by which they took in fee simple. -The rule in Shelly’s case, on which the argument for the plaintiffs rests, was drawn from feudal principles ; it has been much- narrowed of late, and it is held npt to apply to the word- sons of children. There is no need- of implying an estate-tail in John the second,, in order to provide for his heirs, for there is'an-express devisé to his son, and an express estate for life is not to be' altered; by implication, except where it becomes necessary, in order to carry into effect- a manifest general intent. The will contains a prohibition of John the second- selling, which would have been defeated- by his having an estate-tail.
    If, however, the Court shall be of opinion, that the testator had in view an- indefinite- failure of issue, then I contend that John the second took an estate for life, with remainder in tail to John the third, remainder in tail to John the second. If this construction be just, John the second’s" Vested-remainder opened on the birth of a son, and let in the remainder to him, which vested as soon as there was a person in esse who came within the description. He cited Richardson et ux. v. Noyes et al.
      
       Luddington v. Kime.. Gilbert on Devises, 19. Streatfield v. Streatfield.
      
      . Tanner v. Wire.
      
       Loveacres ex dim. Mudge v. Blight et ux.
      
       Countess of Bridgewater v. Duke of Bolton.
      
       Rive ex dim. Urry et al. v. Harvey.
      
       Ibbetson v. Beckrwith.
      
       Barry v. Edgeworth.
      
       Frogmorton ex dim. Wriglit v. Wright et al.
      
       Kennon v. M'Roberts and wife.
      
       Davies v. Miller.
      
       Winchester's lessee v. Tilghman.
      
       Watson v. Poxvell.
      
       French et al. v. M'Ilhenny.
      
       Hughes v. Sayer.
      
       Fosdick et al. v. Cornell.
      
       Jackson v. Blanchan.
      
       Lessee of Findlay v. Riddle.
      
      . 4 Dall. App. 21. 4 Cruise, 344. 1 Fearne, 278, 4th ed. Parefoy v. Rogers.
      
       Robinson v. Robinson.
      
    
    
      Duncan, for the defendant in error.
    The will is capable of three constructions, any one of which, if adopted, will support the claim of the defendant.
    1. The first is, that an estate for life was limited to John Hoge the second, and a contingent remainder in fee to John ■Hoge the third, with an executory devise to the brothers of John the second, on his death, without leaving issue at thfftime of his death.
    • 2. To John Hoge the second for life, with contingent re- - mainder in-tail to John the third, with an estate-tail expectant in John the second. r
    
    3. To John the second for life, — then over to his brothers under a contingency with a double aspect, that , is, to the son, or if no son and John the second died without issue living at the time of his death, to .the surviving brothers by. way of contingent remainder; and in that case John the third would take an estate-tail, because -.John the second could not die without issue, so long as John the third had issue.
    By the direct devise, John the second had not even a freehold, but only a bare right to occupy personally, without power to sell, and the testator plainly, shewed his intent, that John the second should have no power to bar his son. The rule in Shelly’s case is never used to discover the intent,, but when that appears, the rule is to be applied. It is, however, never to be. applied, unless the whole inheritable blood to all ages be taken in. That is not the case in the will before the court, for it contains no limitation to any particular class or description of the heirs of John the second, as heirs. It has been contended, that there is such a limitation to the heirs of his body arising by implication, on account of the devise over in case, of either of the sons dying and leaving no issue; but the testator must- have intended, leaving no issue at the time of the death. In common understanding dying -without issue means issue living at the death, and any words, which show that to have been the intent of the testator, are sufficient thus to restrict the meaning of the expres-. sian.. He could not . have intended an indefinite failure, of issue, for the words in question relate to all the sons, and three of them clearly took fees, which would not have been determined by a failure of issue at any other time, but that of the first taker’s death..
    In the construction- of wills, technical words are to be allowed their proper meaning, but if there are no technical words, the intent must he the sole guide. In this will there certainly are no words which, ex vi termini, would give John the second, an estate tail, and if he takes such an estate, it must be by implication, and in order to effectuate the general intent.. But the testator clearly meant, that hi's son should: have no power to alien, which he must have had if he had been tenant 'in tail. Further, a prior estate tail is never to, be raised by implication, when the ultimate estate is for life, and the brothers must'have taken for life in the “ deceased’s “ part,” if he had died without issue, for there were no words. to give them a fee, and they could not take in tail, because they were to take distributively. Besides the ground of implication fails in this case. It is contended, that John Hoge the second, took an estate tail on account of the devise to his “ son,” but that devise was meant to carry the estate to all the sons in succession, and where the sons take in tail male successively:, the father takes only for life. This construction is not to be prevented by the authority of Robinson v. Robinson, for that case established no general rule, but depended on its own particular circumstances, as-has often been-declared by Lord Mansfeld, and many other judges. In that case too, Lord Mansfeld was influenced by events which took place after the making of the will. He was anxious to' preserve the estate in the family, which could not have been done, without giving an estate tail to the first taker. He re-' lied on the following authorities :
    
      Bale v. Coleman.
      
       Hargrave’s Law Tracts, from page 489 to 578. 1 Fearne, 295, 296. Ray v. Ray.
      
       Jackson v. Blanshan.
      
       2 Fearne, 358. 360. Reeve v. Winnington.
      
       3 Com. Dig. Devise, N. 6. 4 Bac. 265. Legacies & Devises, D. Lethicullier v. Tracy.
      
       Leonard v. Earl of Sussex.
      
       Doe ex dim. Long v. Laming.
      
       Bagshaw v. Spencer.
      
       Hargrave’s Law Tracts, 557. 1 Fearne 135, 136. 138. Lambert’s lessee v. Pain.
      
       Pigot on Recoveries, 60. 3 Wood. 328. Taylor ex dim. Atkyns v. Horde et al.
      
       Goodtitle ex dim. Bridges et al. v. Duke of Chan-dos.
      
      
       2 Black. Com. 172. Tucker’s note. 1 Fearne, 297. 299. Plunket v. Holmes.
      Grayson v. Atkinson.
      Jackson v. Merrill.
      
       Pettywood v. Cook.
      
       Bamfield v. Popham.
      
       Smith et ux. v. Chapman et al.
      
       Target et al. v. Gaunt et al. 4 Cruise title Devise, ch. 11, sec. 1. 2 Saund. 388, notes. Gulliver ex dim. Corrie v. Ashby et al.
      
       2 Black. Com. 110. 155.
    
      Watts in reply.
    I agree, that the intent of the testator should prevail in the construction of wills, but if there are two intents, which aré inconsistent with each other, the least important must give way. The whole will is to be taken together, and the general design carried into effect, though it may destroy some particular one.
    'My construction of this will is, that John the second, took in tail-male, remainder to himself in tail-general, and that he and his brothers took cross remainders in fee simple, in the estates respectively devised to each.
    The land devised to John the second, was unimproved wood land, taken off from the large tract on which the testator lived. It was given to John, subject to the expense of improving. The improvement which he was to make must have been that of clearing, and cutting down the wood, which would be waste, and a forfeiture, if done by a mere tenant for life. Besides, if he had gone to ‘the expense of cleai-ing, he might have been a loser in case his estate lasted but for life. A devise of land charged with the payment of a sum in gross passes a fee ; and by parity of reason, if the will had stopped here, John the second would- have taken a fee. But it- proceeds, and provides, that if John the second have a son, he shall enjoy the land at his father’s decease; which gives an estate in tail-male to John the second, as the devise over in case he should'die without leaving issue, gives him one in tail-female.-
    .That John the second took in tail; appears also from this, that no son of his is so designated as to take by purchase; the expression of the will is, “ a son of a legitimate issue,” which' applies, .^s well to the plaintiffs, as to the defendant, and each of the other sons had as good a right to take, immediately on' the death of John the second, as John the third had, unless the)’' were to come in successively by descent.
    In answer to the objection, that the estate of John the second, was not to be sold, he said an estate tail cannot be sold by ordinary conveyance, and if it was the testator’s meaning, that this should not be thus sold, his intent would be answered by considering it as an estate tail. If he meant to give an estate tail, and to restrict the tenant from suffering a common recovery, his intent was void, as being contrary to the established rules of law.
    He relied upon Robinson v. Robinson,
      
       and cited 4 Cruise title, 38, ch. 9, sec. 4, and ch. 11, sec. 49, and chap. 12. sec. 20.
    
      
      
         2 Wils. 322.
    
    
      
      
         1 Dall. 47.
    
    
      
       6 Co. 17.
      
    
    
      
      
         1 Vent. 231, and 4 Cruise, 281.
      
    
    
      
      
        Anderson, 43, and 4 Cruise, 28D.
    
    
      
       1 Burr. 38.
    
    
      
      
         1 Eq. Cas. Abr. 185. pl. 29.
    
    
      
      
        Amb. 453, and 4 Cruise, 333.
    
    
      
      
         2 Mass. 56.
    
    
      
      
         1 Ld. Ray. 203.
    
    
      
      
         Cas. Rem. Talbot, 182.
    
    
      
      
         3 P. Will. 295.
    
    
      
      
         Cowp. 352.
    
    
      
      
         1 Salk. 236.
    
    
      
      
         5 Burr. 2639:
    
    
      
      
         Cas. Tem. Talb. 157.
    
    
      
      
         1 Eq. Cas. Abr. 178.
    
    
      
      
         3 Wils. 414.
    
    
      
       1 Wash. 96.
    
    
      
      
         1 Call. 127.
    
    
      
       1 Har. & M‘Hen. 452.
    
    
      
      
         3 Call. 306.
    
    
      
       2 Rinn. 13.
    
    
      
      
         1 P. Will. 534.
      
    
    
      
       1 Johns. 441.
    
    
      
       3 Johns. 292;
    
    
      
       3 Binn. 139.
    
    
      
      
         3 Saund. 380.
    
    
      
      
         1 Burr. 48.
    
    
      
      
         1 P. Will. 142.
    
    
      
       2 Mass. 554.
    
    
      
       6 Johns. 54.
    
    
      
       2 Show. 249, case 248.
    
    
      
       3 Atk. 784.
    
    
      
       2 Ver. 526.
    
    
      
      
         2 Burr. 1108.
    
    
      
       2 Atk. 246. 570. 577.
      
    
    
      
       3 Cranch, 133.
    
    
      
       1 Burr. 116.
    
    
      
      
         2 Burr. 1071-2.
    
    
      
      
         1 Fearne, 262.
    
    
      
       1 Wils. 333.
    
    
      
      
         6 Johns. 191.
    
    
      
      
        Cro. Elix. 52.
    
    
      
       1 Cox’s. P. Will. 54.
    
    
      
       1 Ben. & Mum. 298-9.
    
    
      
       1 P. Will. 432, & 2 Fearne, 358.
    
    
      
       4 Burr. 1929.
    
    
      
       1 Burr. 38.
    
   Tilghman C. J.

after reciting the will of John Hoge the elder, proceeded as follows: — It is not clearly expressed what estate the testator intended for his son John. He gives him' the land, provided he lives and improves upon, and enjoys it. The clearing and improving of land, in the year 1748, was a business of expense, and might be attended with loss to the person upon whom the condition was imposed, unless he had an estate greater than for life. It might therefore fall within the reason of the rule, by which a fee-simple is implied, when the devisee is ordered to pay a sum of money. The restriction as to the power of selling, seems also to favour the supposition that the testator intended something more than a life estate for his son; because, if he had only given him an estate for life, he would have had no power to aliene. But it is clear that on a certain event it was intended that the estate of the son should not continue longer than his life; and that event was the leaving of a son who should be living at the time of his father’s death. But suppose the devisee, {John, son of the testator) should have died, leaving no son, but a daughter; was the estate in that case to have passed from his daughter, and gone over to his brothers ? Certainly not; it was not to go to. the brothers, unless John died leaving no issue. The intention then, upon the whole, was that John the son should take a fee-simple, subject to this condition; that his estate should cease, and 'the land should go to his son, in case he left a son-; and that it should cease and go to his brothei-s, in case he left no issue. This is what is called a contingency with a double aspect, to be. ascertained at the moment of John’s death. If he left a son, the estate would be vested in that son; if he left nb issue, it would be vested in his brothers; but if neither of these contingencies happened, that is to say, if he left a daughter, but no son, his estate in fee simple became indefeasible. If this was the testator’s intent it must be gratified, unless inconsistent with some principle of law. But I know of no principle with which it may not be reconciled. A fee may be given after a fee by executory devise, provided the contingency upon which the executory devise is to take effect, is not postponed longer than the end of a life which is in existence at the death of the testator. This case is within the rule, because the devise over could not be suspended longer than the death of the testator’s son John. But it is contended on the part of the plaintiff in error, that John took an estate-tail by virtue of the expressions by which the estate is given to his surviving brothers or their issue, in case he died without issue. The dying without issue is supposed to relate to an indefinite time, and not to be confined to the death of the testator. If that were the true construction, I should agree with the counsel for the defendant in error, because, there being no devise by which such issue could take by purchase, it would be impossible to let them in, otherwise than in a course of descent. But the most simple and natural meaning of dying without leaving issue, is leaving issue at the time of the devisee’s death; nor is there any reason for relinquishing this meaning, unless it leads to some inconvenience, or thwarts the intent to be collected from other parts of the will. If the first devise to John had been for life only, then the subsequent expression, “ if he die without leaving issue,” would have been construed an indefinite dying without issue, to avoid a manifest inconvenience, viz. the inconvenience of the issue, if daughters, being disinherited, contrary to the intent of the testator. In such case, therefore, the main intent being that the son should take first, and his issue of every kind, sons as well as daughters, after him, it would be impossible to carry this intent into effect, otherwise than by enlarging the life estate to a fee-tail. But if the first devise carried a fee sim~ pie, the daughters Would take after their father’s death, unless he thought proper to' give the estate to some other person by devise, which he might do, for he is. only restrained from selling. There is moreover, a great objection to the enlarging bf John’s estate to á fee-tail, by implication, because it would be raising án implication in' order to defeat the favourite wish of the testator, which was to secure the land to the son of John, in case he should have one. If John took an estate tail, he might first bar it by a common recovery, and then alien the land contrary to the express injunction of the will, because the law would not regard such injunction. The same objection operates also, against the construction of the defendant in error, by which John is made to take án estate' for life with a contingent remainder to -his son. When this will was made John had no son. The remainder would not vest before the birth of a son. If then, after the death óf the testator, John had sufferecl a common recovery before the birth of a son, the remainder could have been, destroyed for want of an estate to support it, because John’s life estate would.have been forfeited by the recovery. So that, taking every, part of the will into consideration, the giving an estate in fee to John, with an executory devise to his son, seems best to accord with the intention of the testator. Upon that • construction, the plaintiffs cannot recover, whether the son of John took an estate for life or in fee. What estate he took,- it is unnecessary to decide. I incline to think, however, that he took in fee ; because the expression is, that he shall enjoy the land, and no restriction of any kind is laid upon him-. Upon the whole, my opinion is, that the judgment should be affirmed. -

Ye ates J.

It is a matter of serious regret, that wills are so frequently the subjects of litigation; but our wonder ceases, when we reflect on the infinite variety of human wishes, — the crude ideas of testators, even in times of health and exemption from bodily pain, embracing favourite objects often irreconcileable with each other, — and the frequent utter incapacity of the persons who are called upon to commit the intention of the party to writing. It has often been justly observed, that mankind in general affect to consider the last disposition of their worldly property as perpetual, although, in many instances, they have not contemplated events, which they ought to have provided for.

The general rules for the construction of wills are well extracted from the books, by Cruise on Real Property, in his 6th vol. 157, (Lond. ed.) Amongst others, it is laid down, that no technical words are necessary to convey a testator’s meaning; it must be collected from the whole will, and every part of it must take effect, if it possibly can. Where there is a manifest general intent, the construction should be such as to effectuate it, though by that construction some particular intent may be defeated; the intention of the testator is to be so construed as to be rendered consistent with the rules of law, but, where it is plain, it will be allowed to controul the legal operation of the words, however technical. Introductory words often assist in shewing the intention of a testator; and in such cases the courts have laid hold on them, as they do of every other circumstance in a will, which may help to guide their judgment to a right and true construction of it.

■ I have no doubt whatever, of what John Iioge the first meant in his will. Unquestionably he intended to dispose of the whole of his realty and personalty, from the introductory words, and the expressions, all my other real estate, which connect the devise under consideration, with the devise to his other three sons. To his son John he gave 137 acres of land, “provided he lived and improved upon said land and enjoyed it; and if he should have a son of a legi- tímate issue, that said son should enjoy the aforesaid land at his father’s decease; but his said son John should have no a power to sell or dispose of said land by seal.”

It appears then, that the personal occupancy of the land was devised to John the second, with a restriction, that he should not sell. Upon his decease, if he had a lawful son, such son was to enjoy the property without restriction. The limitation over took place on the death of John the second, and not on an indefinite failure of issue. I therefore consider John the second as a bare tenant for life, remainder to his son John the third, which vested in him on his coming into existence. This construction I conceive to be warranted by Wylde’s case, 6 Co. 17, b. If a devise be to A, and after his decease to his children, A has only an estate for life, because the words plainly shew, that the children were to take by way of remainder. Per Willes, Chief Justice, in Ginger v. White, Willes, 353. The term son, in a will, is said by Pówel, Justice, who delivered the opinion of the court in Luddington v. Keine, to be, without controversy, a word of purchase. 1 Lord Raymond, 206.

The primary general intent of the testator, as to the lands in question, is- obvious, that his son John should enjoy the same during his life, and that on the birth of a son who should survive him, such son should take the premises, unfettered by any restriciion. We cannot but suppose him to have been influenced by some personal family considerations, in discriminating between his four sons, as to the lands devised to them, and laying a restraint on John as to alienation, which he has not imposed on the others: but we find one clause applicable to all; that “ if either of his sons, John, “ Jonathan, David, or Benjamin, shall happen to die, leaving no issuer that then the surviving persons, or their issue, “ shall have their equal parts of the deceased’s part.” In a will, issue is either a word of purchase or of limitation, as will best answer the intention of the testator; although, iii the case of a deed, it is universally taken as a word of purchase. In wills, issue will-much more readily bend to the intention, than heirs, or heirs of the body; and according to the penning of this will, this limitation over must necessarily take effect during the lives of the surviving brothers, and cannot be considered as a limitation overtoil an indefinite failure of issue. I have heretofore observed, that when there is a devise to persons in remainder after a tenancy for life, to take distributively and according to proportions, they must take as purchasers, for there is no other way for them to take. Findlay’s lessee v. Riddle, 3 Binn. 159.

The plaintiff’s counsel have contended that John the second took an estate tail under his father’s will, with remainders over to his surviving brothers, under the known rule in Shelly’s case, and the settled decisions of courts of justice upon words of a similar nature. Mr. Justice Blackstone, in his argument in the case of Perrin’ and Blake, doubted' whether this rule took its rise merely from feodal principles, and was rather inclined to think, that it was first established to prevent the inheritance from being in abeyance. Harg. Law Tracts, 498. But whatever may have been its origin, if it is now incorporated into our system as a rule of property, we are bound by it in all cases to which the rule is correctly applicable. In Findlay’s lessee v. Riddle, before cited, I have attempted to consider this rule pretty fully. I adhere to the opinion which I then formed, that it is not of so inflexible a nature, as not to bend to cases on wills, where the plain, manifest intention of testators, adverse to the rule, can be fairly collected from their own expressions, and the same be not repugnant to law. I cannot assent to the rigour, of the rule, as asserted by Mr. Hargrave, in his. Law Tracts, 561, that it musthe applied, even though the party shpuld express in his will that the rule should not be applied, and that the remainder to the heirs of the tenant for life, should operate by purchase. Amongst the exceptions to the rule, I have particularly animadverted on Doe ex dem. Long. v. Lanning, (2 Burr. 1100. 1 Bla. Rep. 265,) on a devise of gavelkind lands, and have said, that the remarks of Lord Mansfield, as to gavelkind lands, apply with peculiar force to the equal spirit of our laws regulating the descent of real estate.

Mr. Hargrave himself admits, that the rule in Shelly’s case supposes the intention .already discovered, and to be, that the gift, or conveyance in question, has first given to some person an estate of freehold, and then superadded a succession to the heirs general or special of that same person, by making him or her the ancestor, terminus, or stirps, by reference to which the whole generation or posterity of heirs is to be accounted. (Law Tracts, 574,). See 1 Fearne, 295.

Words of explanation annexed by the devisor to the word-heirs, discovering his apprehension- that;he may have used it improperly, and correcting the inaccuracy of his own phrase, will take the case out of Shelly’s rule. Hargr. Law Tr. 505. Burchell v. Durdant, 2 Ventr. 311. Lisle v. Gray, 2 Lev. 223. Lowe v. Davis, 2 Ld. Raymond, 1561. Long v. Laming, 2 Burr. 1100. In the present instance, I consider the testator’s expressions to convey the same idea. To his son John he plainly gives the enjoyment of the land for life, restraining him from sale, to go. over on his decease to his lawful son, free from restraint, and connecting the introductory words, such worldly estate, with the words, all'nvy, othemreal estate, which immediately follow the devise in question. No doubt whatever rests oh.my mind, that an estate :of inherits ance, something more than a life estate, was intended to be given to the grandson. Besides, the rule in Shelly's case does not apply to the words sons, or children ; and therefore a devise to A for life, with remainder to his sons of children, or to his first and other sons or children, gives an estate-for life only to A. The usual mode of creating a strict settlement by will, is to devise to the eldest son for life, with remainder to his first and other sons successively^ and to the heirs male of their bodies. 6 Cruise, 344. In support of this position are quoted, a case cited by Lord Hale in 1 Rol. Abr. 837, pl. 13. Ginger v. White, Wittes, 348. Goodtitle v. Woodhull, ib. 392. Goodright v. Dunham, Doug. 264.

Even the term heirs may be construed as a word of purchase in a will, when the testator appears to have used it with a view of designating a particular person. Smith’s lessee v. Folwell, 1 Finn. 539. Here that term is not used, but the words are, son of a legitimate issue, the production of an illiterate person, which can have no other .meaning, than a male child by a lawful marriage. In the language of Hargrave (Law Tracts, 574.) such son designates only a certain individual person, answering the description of the testator. Upon the birth of this son, the remainder, which was in the first instance contingent, became vested in him, and was not barred by the common recovery suffered by the father.

Adjudged cases have also been relied on by the plaintiff’s counsel. I admit, that where certain words have received a settled meaning, after full discussion in courts of justice, such decisions should not lightly be departed from. — Manifest uncertainty would result from such deviations. But it is remarked by Lord Chief Justice Wilmot, that cases on wills have no great weight, unless exactly similar in every respect. 2 Wils. 324. 3 Wils. 247. To render them authoritative, they should be in verbis ipsissimis, and made by the testator in the same situation and circumstances. Barr, on Stat. 370. Otherwise the intention is to govern,as it appears from each will. Ib. This is the great primary rule, provided the estate devised be consistent with the established rules, of law. We need not the authority of Blackstone (Hargrave’s Law Tr. 491.) to assert, that unless the true meaning of a testator should govern, it would be an infringement of that liberty of disposing of a man’s own property, which is the most powerful incentive to honest industry, and is therefore essential to a free and. commercial country.

The first case relied upon is Robinson v. Robinson (1 Burr. 38.) which was sui generis. There the devise was to Launcelot Hickes for life and no longer. But this particular intent was inconsistent with the testator’s general intent, which was that the whole line of male heirs of L. Hickes should take, and that general intent was properly effectuated. In Smith et ux. v. Chapman et al. 1 Hen. & Mumf. 299. Judge Roane Observes, that L. Hickes and his son were to take the name of Robinson; and it was deemed improbable that the testator would impose and perpetuate the name upon him, and yet that the estate, in consideration of which it was to be assumed, was to endure only for life. The perpetuity also of his presentations was given to L. Hickes, (subject, &c.) in the same manner, and to the same uses as he had given his estate, thereby explaining the former devise by the latter. Mr. Cox remarks, in his. notes on Bamfield v. Popham, (1 P. Wms. 54.) that as to estates raised by implication in a will, no general rule can be laid down; such construction will be made thereon, as is necessary to effectuate the general manifest intention of the testator.

In Roe ex dem. Dodson v. Grew et al. (2 Wils. 322.) also cited, the devise was “ to George Grew during the term of “his natural life,and from and after his decease to the use of “ the issue male of his body lawfully to be begotten, and the “ heirs male of the body of such issue male, and for want of “ such issue male, then over in fee.” These words peculiarly imported an estate-tail, and the great intention of the testator was that the' sons of George Grew should take in succession, which they could not do if he was only tenant for life. The particular intent gave way to the' general intent.

Dubbes ex dem. Trollope v. Trollope (Ambler. 453. Robinson on Gavelkind, 96,) was the last casé relied on by the plaintiff’s counsel. There the testator' devised “ the manor to his eldest “ son William for life, remainder to his first son for life, remain“der to the right heirs male of his body lawfully begotten, “ remainder to the second, third, fourth, fifth, sixth, seventh “ sons of the body of William and the heirs male of their bo- “ diés lawfully begotten, and for want of such issue to his se- “ cond son Thomas for life, and after to the first heir male of his body lawfully begotten, remainder to his third son Chris- “ topher and the heirs male of his body, remainder in like “ manner in tail-male to the fourth, sixth, and seventh sons, « &c.” And the court held that the words-Aeir male were to be understood collectively, and that Thomas, the second son, took an estate-tail, it appearing that such was the testator’s intention by the other devises. It was distinguished from Archer's case, no limitation being superadded to the words first heir male, and the word first was understood first in order of succession from time to time.

I have already taken notice that the word heirs, which occurs in these three different cases, is not to be found in the will before the court, the word son being used; and that the provisions in this will are equivalent to words superadded in the limitation over, on the decease of John the son: in neither of those cases was the interest devised to the first taker, fettered with a clause restraining him from alienation, which was omitted as to his son in remainder. They were severally determined on the ground of the testator’s general intention, and proceeding, as I conceive, on the same principle, I am of opinion, that John the son only took an estate for life, in the 137 acres of land devised to him, and that John the grandson took the remainder by way of purchase, and not through his father; but whether in fee simple, or in fee-tail, I feel it unnecessary to give a decided opinion; and, consequently, that the judgment of the Court of Common Pleas of Cumberland county be affirmed.

Bh.ackenb.idge J.

This case has been kept under advisement since the last term at this place. I had made up my mind at that time; and I find indorsed on the paper book the following, by which I abide, not having given it any re-examination during the interval. - The indorsement which I made is in the following words: “ I. am of opinion, that John Hoge the second, took an estate for life with a contingent “ remainder in fee to John the third, with an executory de- “ vise to the brother in fee, on John the second’s death, “ without leaving issue living at the time of his death by way “ of substitution.”

J udgment affirmed.  