
    [Lancaster,
    June 6, 1825.]
    NEBINGER against UPP.
    IN ERROR.
    35'vjse to my son G., his heirs and assigns, 'to his and their, only proper use and behoof for ever, provided always, nevertheless, that if the wife of my said son G., to wit, A., should happen to survive him my said son, then and in such case the said premises above described, shall be and remain to and for the only proper use and behoof of the heirs or issue lawfully begotten on the body of the said A., [and of the children lawfully begotten on any other woman,] and their heirs and assigns for ever, as tenants in common, and not as jointenants, and, for want of such issue, the same shall enure to the issue lawfully begotten on the body of my daughter C., intermarried with G. W., and their heirs and assigns, tenants as aforesaid,” and, of another part of his estate, “to my daughter Catherine, and to her children lawfully begotten on the body of my said daughter C., and their heirs and assigns for ever.” G. takes in fee, subject to the limitation over to his children, on the event of A., his wife, surviving him, and his children take as tenants in common by purchase.
    Ejectment in the Court of Common Pleas of York county, brought by Robert Nebinger against George Upp, in which the jury found a special verdict, and judgment was rendered thereon in favour of the defendant, Upp, which was removed to this court by a writ of error.
    The special verdict stated the facts of the ease as follows:
    On the 28th day of June, 17S9, Jlndrew Nebinger was seised in fee of the premises, and on that day made his last will and testament in writing, which was duly proved, &c., and died seised on the 15th of October following. By the said will he made the following devises:
    
      “ Item. I give and devise unto my son, George Nebinger, all that eastern moiety or equal half part of tho lot of ground whereon I now dwell in York town, adjoining Baltzer Spangler and others, together with all buildings~and improvements thereon being, with the appurtenaneds. I also give and devise unto my said son, George Nebinger, all that lotv or piece of meadow, situate on the south side of the great road leading from York town to Wright's ferry in Freystown, containing one acre with the appurtenances. Further, also, I do give and devise unto him, my said son George Nebinger, part of another piece of meadow and upland, situate on the north side of the said road leading from York town to Wright’s ferry, adjoining lands of John Hoy and others, to be laid off and divided from the whole piece in the following manner: viz. Beginning at a white oak in Martin Farmer's land [hence by courses and distances to the place of beginning,] containing four acres and one half of an acre, and twenty-four perches of land; to have and to hold the said eastern moiety of my sard lot of ground, the one acre of meadow adjoining the road in Freystown, and the said four acres and a half of an acre, and twenty-four perches of meadow and upland, with all the improvements and appurtenances to the same, respectively belonging, to my son George Nebinger, his heirs and assigns, to his and their only proper use and behoof for ever; together with the right of all the water in the race four days in every week for ever, that is to say, Thursday, Friday, Saturday, and Sunday, without interruption of any person whomsoever: provided always, nevertheless, that if the wife of my said son George, to wit, Anne Nebinger, should happen to survive him my said son, then and in such case the said premises above devised, and every part thereof, with the appurtenances, shall be and enure to and for the only proper use and behoof of the heirs or issue lawfully begotten on the body of the said Anne, and of the children lawfully begotten on the body of any other woman he may marry, and their heirs and assigns for ever, as tenants in common, and not as jointenants, and for want of such issue, then the same, and every part thereof, shall be and enure to the issue lawfully begotten on the body of my daughter Catherine, intermarried with George Weller, jr., and to their heirs and assigns, as tenants aforesaid.
    
      ii Item. I give and devise unto my daughter Catherine, intermarried with George Weller, all that western moiety or equal half part of the lot of ground whereon I now dwell, with all the buildings and improvements thereon, and the appurtenances. I further also give and devise unto her, my said daughter Catherine, all that remaining part of my meadow ground, on the north side of the great road leading from York town to Wright’s ferry, beginning at a post, [and by courses and distances to the place of beginning,] containing three acres and a half of an acre, and ten perches; to have and to hold the said western moiety of the said lot of ground, and other piece of meadow and upland, with the appurtenances, unto my said daughter Catherine Weller, and to her children lawfully begotten on the body of her my said daughter Catherine, and their heirs and assigns for ever; together also with the use of all the water in the race three days in the week, that is to say, every Monday, Tuesday, and Wednesday for ever. In consideration whereof, I do order, that the said George Weller and my daughter Catherine, or their heirs, do provide for my said wife, Anne Maria, a comfortable dwelling-room with him or them, with the convenience of baking her bread, and sufficient fire wood delivered at her dwelling during her natural life. And it is my most positive will, and I do hereby order, that my son George shall keep in repair the race or water course, so far as his meadow extends, so that neither shall interfere with the others meadow and right. Yet that George Weller may have the right to drain the water for the time limited, and further, that they my said son George Nebinger and George Weller do jointly keep in repair the race or water course, from the end of the large meadow up so far as my right of the race extends in Freysiown, from time to time for ever, AU the rest and residue of my estate whatsoever, I order shall be sold at auction or public-vendue, within four weeks after my decease, by my hereinaftei#. named executors, or the survivor ofdhem, hereby giving thetotóill pSwer so to do, and the moneysjgising therefrom, with t|flmái4¿jj^|a of fifteen hundred pounds-Ker my wife’s decease, ifluit aiMffiqueath unto my son G eorgewtfebinger, and my dauaHfr djHrenree Weller, to be equallySvided among them, shaSSñd sM§ alike, or among their legal reSesentatives, which I gitlBfthsrn 'Wm ever, my just debts, funeral Hkpenses, and incidental Jprges bé||g first satisfied. My further will also is, that if my wife Anné Maria do marry again, that then each and every article and thing herein before given her, shall be absolutely null and void,-and in lieu of which, and of her dower and thirds, do give and allow her the yearly interest of the sum which will amount to thirty pounds per annum, which shall be paid to her in manner aforesaid, together with the said sum of fifty pounds and twenty-four silver dollars aforesaid. My old desk I do give unto my daughter Catherine aforesaid for ever. Lastly, I do hereby nominate and appoint my wife Anne Maria Nebinger executrix, and my loving George Nebinger, and trusty friend George Philip Zigler, executors of this my testament and last will, hereby revoking all former wills by me heretofore made, allowing this only to be my last testament and will. In witness whereof, &c.” * '
    At the time of the making and publishing the will above mentioned, George Nebinger, the son of the testator in the said will mentioned, was intermarried with Ann Nebinger, in the said will mentioned; the said George Nebinger, on the death of the testator, entered upon the premises in the said will mentioned, being the same in the writ in this case mentioned, and at April term, 1786, in the Common Pleas of Work county, suffered a common recovery of the said premises, to the use of himself in fee. The said George Nebinger and wife, on the first day of May, 17S6, by deed of bargain and sale, conveyed the said premises to Daniel Spangler in fee, with general warranty, in consideration of four hundred pounds, which was the full, value thereof, and Daniel Spangler, after having built a large house on the said premises, and otherwise greatly improved the same, died intestate, seised of the same, on the 15th of December, 1812, and the administrators of the said Daniel Spangler, by virtue of an order of sale made by the Orphans’ Court of York- county aforesaid, sold and conveyed the said premises to the defendant in this suit, which sale was confirmed on the 14th of December, 1S13, by the said court, and the defendant in this suit was-in possession of the premises when this suit was commenced.
    
      George Nebinger, the son of the testator, had issue on the body of his said wife Anne, in the will of the testator mentioned, six children, as follows, to wit: Andrew, the eldest son, Mary, Anne, and Rebecca, who are all above the age of thirty-one years. George, 
      aged thirty years, and Robert, the plaintiff in this suit, who was born in April, 1796, who are all still living, and wore born after the making' of the will of Andrew Nebinger, the testator above mentioned.
    
      George Nebinger, the son of the testator, on the 28th of June, 1796, died leaving his wife Anne aforesaid, mentioned in the will of the testator, to survive him, who is still living, seised of certain real estate in York county, to wit: two lots in Stunesiown, which were afterwards appraised by order of the Orphans’ Court of York county at six pounds, and decreed to Andrew, his eldest son: a share of the valuation money was ordered by the said court to be paid to the plaintiff, and was duly paid to his guardian.
    “ Letters of administration on the personal estate of the said George Nebinger aforesaid, were after his death granted to Ann Nebinger, who, on the settlement of her administration account, on the 3d of October, 1799, had abalance in her hands of seventy-seven pounds.
    After the decease of George Nebinger, the son of the testator, on the petition of his eldest son, Andrew Nebinger, to the Orphans’ Court of York county, the two pieces of meadow ground in the will of the testator mentioned, were appraised as the estate of George Nebinger, the son of the testator, and decreed to the petitioner, Andrew, son of George, and a share or purpart of the valuation money was paid to the guardian of the plaintiff in this suit.
    The defendant, and those under whom he claims, have been in possession of the premises mentioned in the writ since the date of the conveyance to Daniel Spangler aforesaid, and have held the same adversely to the right of the plaintiff.
    The case was argued by
    
      Lewis and Uurkee, for the plaintiff in error.
    
      Barnitz and Hopkins, contra.
   The opinion of the court was delivered by

Duncan, J.

The question arises on the will of Andrew Nebinger. The testator had two children, — a son and daughter, — and devises the premises in dispute to George, his son, in the following words: “To my son George, his heirs and assigns, to his and their only proper use and behoof for ever; provided always, nevertheless, that if the wife of my said son George, to wit, Anne Nebinger, should happen to survive him, my said son, then and in such case the said premises above described shall be and remain to and for the only proper use and behoof of the heiys or issue lawfully begotten on the body of the said Anne, (and of the children lawfully begotten on any other woman,) and their heirs and assigns for ever, as tenants in common, and not as jointenants; and, for want of such issue, the same shall enure to the issue lawfully begotten on the body of my daughter Catherine, intermarriedrwith George Weller, and their heirs &nd assigns, tenants as aforesaid;” and another part of:¿his estate he devises as follows: Unto my'daughter Catherine, and to her children, lawfully begotten oh the body of her my said daughter Catherine, and their heirs and assigns for ever.” George entered on the death of his father, and of the term of -April', 1788, suffered a eommon recovery and transferred his title, which by mesne conveyances and assurances in law, is vested in the defendant. Jlnne, his wife, survived George, the devisee, who left issue of his body by his wife Jhine, six children, born after the.testator’s death, among whom is Robert, the plaintiff in this action. The plaintiff contends, that George Nebinger took by way of executory devise an estate in fee, to be divested on a particular event, — his death, his wife Jlnne surviving, — which event has happened; and that he, by virtue of the limitation in that event, becomes entitled to one sixth part, of the premises. The defendant contends, that George took an estate in tail, which is converted into a fee simple by the common recovery. This will is a very uncommon one, and drawn by a scrivener who had in the course of his business picked up some technical words, the exact meaning of which he did not understand.

But, on considering all the provisions of this will, we think the intention of the testator must have been, that George should take in fee subject to the limitation over to his children, on a particular event, — ftnne his wife surviving him, and that his children should take as tenants in eommon by purchase.

The provision that the children should take as tenants in common, and not as jointenants, shows distinctly, that the testator was contemplating something very different from an estate tail, because an estate tail, if there were sons, would vest wholly in the eldest son, to the exclusion of all the rest; and upon an estate tail there would neither be a jointenancy nor tenancy in common, and the words — for want of such issue, put it beyond all doubt that the testator used the words — heirs or issue lawfiilly begotten, not as words of limitation to give George .an estate tail, but to give such children a distinct and independent interest as tenants in common. This is an intent clearly, fully, and distinctly expressed in the will, that these children are persons designated to take as tenants in common, not by descent from their father, but a distinct interest by purchase. But, however strongly this intent is expressed, it would not be permitted to prevail, if it were at variance with any paramount general intent of the testator; and it is contended, that there is such paramount general intent; not that such paramount intent is expressed, or that it is inconsistent that this particular, intent should prevail, but because there is some absurdity in first providing for the event ,of George’s dying, -flnne his then wife surviving, and making provision for the children he might have by a future wife; and therefore the whole contingency should be altered by introducing the word not; and, to be sure, this is a very simple operation, but this is a liberty not be taken with the will of any man, and certainly never will be taken to defeat his intention. The blindness of expression may be supplied by a construction favourable to the real meaning, the constant object of which is to support the intent; and, for this purpose, words of limitation should operate as words of purchase, — implication shall supply verbal omissions, — the letter shall give way, — every impropropriety of term shall be controlled by the general meaning, if that be clear and manifest. Chapman v. Brown and others, 3 Burr. 1634. But, here, to correct this alleged obscurity, you defeat the testator’s general intent, which certainly was, to give all the children of his son George an estate by purchase distributively, and not in succession; and to do what? to effectuate what intention I cannot see. But I can see an intention clearly expressed, which must not be defeated by a mere conjecture. For the manifest intention of the testator was, that all George’s children should take at the 'same time, and take equal shares. Now, it would be a singular conclusion, where each child was equally an object of the testator’s bounty, and was to have an equal share, to hold that every child’s share should be given up in the first, instance to the eldest son, and that he and his issue, as long as he had any, should hold it in exclusion of all the rest: for if George had not suffered a common recovery, the whole would have vested in his son TLn~ drew, as tenant in tail. There is no reason for making it an estate tail, by adding a word which the testator never used, and which would change the whole plan of the will, and for the sole purpose of converting that into an estate tail in the father, which would otherwise be according to the words he has used, and which was his distinctly expressed intent, distinct and separate estates to his children. There is one reason to be assigned, which would operate in the mind of the testator, and that is, that George should not take such an interest as would entitle his wife to dower, which she is not, on the construction we have put on this will. For where a fee, in its original creation,- is only to continue to a certain period, there the wife is endowable and the husband entitled to be tenant by the curtesy after that period: but whei’e the fee is devised in words importing a fee simple or tail absolute, but by subsequent words is made determinable on a particular event, if that event happens, the dower and curtesy cease with the estate to which it is annexed. Co. Litt. 241, a. And it is a singular coincidence, that when by limitation the estate went over to the female branch of the family, the husband of Catherine could not take as tenant by the curtesy, nor the wife of George be entitled to dower, for the devise over is not to Catherine herself, but to her issue lawfully begotten. I have avoided a reference to the numerous authorities, as to the effect of the issue taking as tenants in common, because they are all referred to in the very able opinion in The Lessee of Findlay v. Riddle, 3 Binn. 139. That case clearly proves, that a limitation to issue, as tenants in common, is inconsistent with all idea of estate tail in the ancestor: for by the limitation to the heirs of the bod#, issue, or children as tenants in common, cannot be intended^iat succession of perso^i denominated by the law heirs: they e&nnot take by descent, bu£ must take as purchasers, and therefore the rule in Shelley’s case is not applicable.

The opinion of the court therefore is, that the judgment should be reversed, and judgment entered for the plaintiff on this special verdict.

Judgment reversed, and judgment entered forthe plaintiffin error*  