
    [Chambersburg,
    October 31, 1827.]
    IRWIN against DUNWOODY and another.
    IN ERROR.
    Devise by testator to his sons James and David of all the residue of his estate to them and each of them share, and share alike, to them and' each of them their heirs and assigns for ever; and in case either or both of his said sons should die without heirs of his body, their share or shares to be equally divided among certain legatees before named: held, that Joseph and David were tenants in common in tail, with a vested remainder on the deatli of either, without heirs of the body, to the legatees mentioned.
    Children merely named in the will as having received their share of the testators estate, are not entitled, tinder a devise to “ the legatees above named.”
    But David is a legatee within such description, and entitled tó a share of Joseph’s half on the death of Joseph Without issue'.
    Error to the Court of Common Pleas of Franklin county, in ejectment brought by William Irwin, against 'David Dunwoody and another, for the one undivided half part of one, hundred and fifty-seven acres of land, situate in Peters township, Franklin county, in which the court below rendered judgment in favour of the plaintiff, for one undivided fifth part, by .virtue of the devise, and the one seventh of the undivided fifth, as one of the representatives of John Duniooody, deceased. The following case was stated in the court below in nature of a special verdict.
    
      William Dunwoody, late of Montgomery township, Franklin county, deceased, made- his last will and testament, dated the 9tll day of December, 1794, wherein, among other things, were the following:—
    «I give and bequeath to my loving daughter, Mary Dunwoody, (now Mary Beard,~) twenty pounds specie.
    ££ I do give and bequeath to my loving son, John Dunwoody, thirty pounds specie, and my bible, exclusive of what he has, already received of me.
    ,£< I do give and bequeath to my loving son Adam Dunwoody, deceased, his son William, ten pounds specie, besides what I have heretofore given to my son Adam, to be laid out for him in schooling.
    <£ My loving son, Samuel Dunwoody, has received his full share of my estate.
    “I do give and bequeath to my loving daughter, Esther Dun-woody, fifty pounds specie, one third of my horned cattle, a chest of drawers, my gray mare and the saddle, all the bedding and bed furniture, (except one feather bed and furniture'to each of my sons; viz. Joseph and David,) to be at her pleasure; one- third of all my books, my cupboard furniture; she living, as usual, on my «state during her pleasure while unmarried, and to have half an acre of flax sowed for her, and one third of all the wool that the sheep has, that is continued on the place yearly and every year while she is entitled to the aforesaid living. •
    “I do give, and bequeath- to my loving daughter, Ann Dun-woody, (now Ann Irwin,) twenty pounds specie.
    “ I have paid my loving son, James Dunwoody his full share of my estate.
    “I give and,bequeath to my girl, Sarah 0‘Farrell, five pounds in cash, or the value thereof in bedding.
    “I do give and bequeath to my. loving sons Joseph and David, all the residue and remainder of my estate, real and personal, of whatsoever kind to me belonging,-or in any wise appertaining, to them and. to each of them, share and share alike, to them and eách of them, their heirs and assigns for ever. It is further my will, that in case either or both of my sons, viz., Joseph and David, should die without heirs of their body, then and in such case I allow their share or shares to be equally divided amongst all the above legatees; (except Sarah' 0‘Farrell.)
    
    
      et Joseph enjoyed tlie land in dispute in severalty, and he and David, having divided the estate devised to them, Joseph Dun-woody, the devisee, died without issue of his body, never having been m'arried, on the 24th day of August, 1824, in possession of the tract of land in controversy, under and by virtue of the devise in the said will, not having altered, of by any act of his, charged the estate so given -him thereby.
    
      <c Mary Beard, (late Mary Dunwoody,) within mentioned, died before the said Joseph Dunwoody,. viz. about twenty years ago, leaving to survive her eight children, six of whom are now living.
    
      “ John Dunwoody, within mentioned, is yet living: William, within mentioned, (son of Adam,) died in his minority, unmarried and leaving a brother, before the. death of the said Joseph; Samuel Dunwoody, within mentioned, is yet.living. Esther Dun-woody, aforesaid, died in the lifetime of the said Joseph Dunwoody, unmarried and without issue, and Ann Irwin, (late Ann Dun-woody,) ánd James Dunwoody, within named, are yet living, and David Dunwoody, the defendant, is the David Dunwoody, In the said will mentioned.”
    The court gave judgment for the plaintiff, for one undivided fifth, in right of his wife Ann, and the one undivided-seventh of the undivided fifth in right of Esther.
    
    The error assigned was, that the. judgment of the court below should have been in favour of the plaintiff for the one undivided half part of one hundred and fifty seven acres of land, (according to the statement filed in thé cause,) and not for that portion thereof for which-the judgment was rendered.
    
      Crawford, for the plaintiff in error.
    
      J and Cr..Chambers, contra.
    
   The opinion of the court was delivered by

Duncan, J.

The plaintiff in'error, in the events which have happened, claim's the whole of the moiety of the lands of Joseph, devised to him by his father, William Dunwoody, as being the only person answering the description of legatee, and capable of taking, on the death of Joseph. The Court of Common Pleas decided that he was only entitled to one undivided fifth, in right of his wife, the daughter, Jinn Dunwoody, and the one seventh of the undivided fifth, in right of Esther, who died without issue.

By this will, I am of opinion. that Joseph and David took the estate in common in tail, with a vested remainder on the death of either of them without heirs of the body, to the persons designated by the name of legatees. It is not an executory devise in fee, with a devise over on contingencies .which might reasonably happen, but an express estate tail. “ In case either or both of my said sons Joseph and David, should die without heirs-of their bodies, then I allow their share to be divided among the above legatees.” The legatees were persons living at the death of the testator. It is as if the remainder had been to them nominatim.

It is as .unnecessary to cite cases, to prove a position so clear as this, as it would be to quote authorities to prove that a devise to a man and his heirs is a fee simple. The question, whom the testator intended by “ all the above legatees, (except Sarah 0‘Farrell,y’ is one of very great difficulty; .and I must confess, if I was left to surmise and question, or wills were to depend on conjectures, I would conjecture that he intended all the persons above named — his. children and grandchild. But this intention is far from being so plain and manifest as to satisfy Ihe conscience of a judge. The word legatees is not a word of art, nor does it require any technical construction; but it is a designation of persons not by name, but by characters, in which he has placed them by his will. James and David are named, but not as legatees: on the contrary, he excludes them, by declaring that he had paid them the full share of his estate. They do not answer the description of persons to take the remainder. It is a general rule, (though there may be some exceptions in the case of wills, which do not apply to the present ease,) that if an -w/i-nominated person takes, he must answer the whole description of the designation by which he is mentioned in the instrument. It would be difficult to maintain that they agree fully with the description of legatees, merely because they are mentioned and excluded from legacy. If the name of one of the children had been omitted, he would not have taken: it is stronger where he is named, but excluded. This construction is fortified by the exception of Sarah O’Farrell. If it was the testator’s intention, it is so latent, so merely conjectural, so problematical, that it would be rather making than construing the will, to introduce those by the name of legadees, to whom nothing of his estate was given by the will, and who were said by the testator to be fully advanced. David answers the description of a legatee fully: he has bequeathed to him both real and personal estate, and he is-entitled to one sixth part.

On the whole, my mind has settled down to adopt the construction given by the Court of Common Pleas, so far as it goes, — but adding David as a legatee entitled to take. I would willingly have caught at any expression, any hint, to have brought in all the persons named, because I conjecture equality was the intention of the testator; but.I cannot supply the omission, nor change the.universal meaning of the word legatee. I cannot substitute persons above named for legatees above named.

The judgment is therefore reversed, and judgment to be entered for one undivided sixth and one undivided seventh of one undivided sixth.  