
    COURT OF APPEALS,
    JUNE TERM, 1793.
    James Lingan and others against James Carroll, Executor of Nicholas Maccubbin.
    THIS was an appeal from a decree of the court of chancery,-passed the 17th of May, 1791, dismissing the bill of the complainant.
    The bill was brought by the residuary devisees of James Maccubbin, against the executors of his brother and heir, to compel an account of the profits of the real estate into which the heir had entered, supposing the devise of it in trust to be void, and that it was not given over to the complainants by the residuary clause.
    It appears that the testator, by his will, dated in 1774, devised all his real estate in Maryland, and the reversion of other real estate in Pennsylvania, which he devised to Magdalen Devine, for life, unto the trustees of the college, academy and charitable school of Philadelphia, and their successors, in trust, to the uses declared particularly by the will. The residue of his estate, real and personal, not therein before disposed of, he gives one moiety to the children of his sister Lingan, to be equally divided among them, and in case any of them shall die unmarried and without issue, his or fer share-to be divided among the survivors. The other moiety was devised, in the same words, to the children of Mrs. Wood.
    The defendant demurred to the bill, and the chancellor (Hanson) decreed that the terms “ rest and residue of my real estate, not herein before disposed of,” had no certain meaning and operation in law, to pass every part of the real estate which had otherwise before been legally devised, and that every claim of real property under a will must rest on the intention of the testator to be collected from the whole will; and that it appeared from the will of James Maccubbin that he intended to dispose fully of the land in question, to the trustees of Philadelphia College, for the purpose of erecting a school, having neither made a limitation over to the complainants, in case the devise to the said trustees should be void, nor intimated the least doubt of the validity and efficacy of the said devise ; and the law being settled, that in case of a lapsed devise, the land shall pass to the heir and not to the residuary devisee, and there being no solid distinction between the case of a lapsed devise and the case of a devise void by the rules of law, it being manifest in both cases that the testator did not intend the land de facto devised to go to the residuary devisees; the chancellor, for these reasons, being of opinion that the bill of the complainants contained no matter of equity, dismissed it, &c.
    The complainants appealed to the court of appeals.
    Cooke, for the appellants.
    The statute of 32 Hen. VIII. z. 1. of wills, as explained by the 34 & 35 Hen. VIII. c. S. was restrained to any person or persons except bodies politic or corporate, which, therefore, excluded all devises in mortmain.
    
    The statute of 43 Eliz. c. 4. was construed to authorize a devise to a corporation for a charitable use, as operating in nature of an appointment rather than a devise.
    The statute of 9 Geo. II. c. 36. prohibits these dispositions which tend to defeat the political ends of the statute of mortmain. 3 Atk. 806. 1 Vez. 108. 320. 2 Vez. 44. 547. Besides, this corporation, created for a particular purpose, have no power or authority to take lands or other property by devise, at least by any law that is obligatory, or of binding, force, on the citizens of this state.
    The devise to the corporation being void and of no force or validity, the question arises if the estate is carried over to the residuary devisees by the last clause of the will.
    I admit the rules contended for by the defendants, that the intention of the testator is to prevail, and that the heir at law is not to he disinherited unless the intent appears to do so by express words, or necessary implication. But this intent must be collected from the words, and if the words are sufficient to convey the estate, it is the best evidence of the intent, and the heir can have no claim.
    A devise to A. generally, or all my lands in A. A. county to A., will convey only an estate for life; but a devise of all my estate to A. gives the fee, and disinherits the heir.
    The words in this case are sufficiently comprehensive not only to describe the thing, but to pass all the interest the testator had in it to the complainant; but it is inferred and contended that he did not intend to pass the real estate under this residuary devise, because he has before devised the same estate to the trustees in fee. That his first wish and principal intent was to give this estate to the trustees cannot be denied. But if that could not be effected, the next object of his bounty were the residuary devisees; he must have known that it was possible at least, if the estate could be devised in the manner he directed, that his intentions might be frustrated. In that case, as the will originally stood, the heir at law would have taken, there being no other disposition of it.
    The codicil remedies this defect, and gives all the residue to the children of his sisters.
    The heir at law in all cases claims in opposition to the will; in this case he must claim according to the intent. The heir at law is nowhere considered as the object of his bounty. He was rich and did not stand in need of it j his sister’s family were quite the reverse, and it was natural, it was just, to make:the provision that I contend he meant to do by the residuary clause. 2 Vez. 49. Cowp. 811. 3 Atk. 486.
    The rule of law is, that the primary or main intent of the testator is to be preferred; if that cannot be effected, that construction is to be preferred which will favour the secondary object of his will. 2 Wils. 323. Another rule of construction is, that the intent is to be collected from the words, and every word is to have a construction and operation, if possible, and none are to be rejected that can have any operation. 2 P. Wms. 282. 3 Atk. 233.
    According to the construction that I give the will, every word has its effect; but several parts must be rejected by the construction of the defendant.
    
      The residue of the real and personal estate, Now there is no real estate whatever to satisfy this devise, unless the will is construed as I say it ought to be.
    A testator is not to be supposed ignorant of what he has before given. 1 Atk. 415.
    Again, he has entailed this residue by cross remainders, which would be utterly void unless applied to the real estate. If there is no real estate, there is nothing for this clause to operate on, for the personal estate will not admit of entail.
    I will now examine the cases that come the nearest to this subject, and show that there is no authority against the construction I contend for; but that the reason and principle of the former decisions are in my favour.
    It was at first doubted whether a residuary devise would carry a remainder not disposed of, where part of the estate had been devised by the same will. Wheeler & Walroon, Alleyn, 28.
    Afterwards came the case of Willows & Lydcot, 2 Ventr. 285. where there had been a particular devise for life, and then all his messuages, lands, tenements and hereditaments, (not above disposed of,) to his wife and her assigns for ever.
    
      
      Hopewell & Ackland, Salk. 239. All my lands, &c. to A.; all my goods and chattels, and whatever else I have, not before disposed of, to the said A. By the last words he took the fee in the lands, &c.
    
      Bennett & French, 1 Leon. 251. Vin. tit. Devise, 48. pl. 9.
    
      Goodright & Opie, 9 Mod. 123. The judges divided, and no determination.
    
      Wright & Horner, Fortes. 182. All the rest and residue of his lands, tenements and hereditaments, in Edmonton, Enfield, and elsewhere, to John Lamar, his heirs and .assigns. In this case the devise was good at the time of making the will, and that was the ground of the decision, as Lord Hardwicke states it in a subsequent case, and as it appears in the case of Roe & Flud, 184. in the same book; but here the devise is void in its creation.
    All the rest and residue of his lands, &c. would seem, to exclude an intention to devise the same lands. The words are descriptive of the thing; whereas the residue of his estate is not only descriptive of the thing, but all the interest in it. 2 Burr. 922. If this case is law, it has been greatly shaken by subsequent determinations, and does not apply to this subject.
    1 Vez. 141. 320. Where the devise is good at the time of making, he could not devise a right accruing after-wards, if the party dies in his lifetime. Vide 1 Vez. 490. Cowp. 43. But surely this idea is contrary to the common cases of conditional limitations, or of executory fees.
    1 Vez. 420. Fern. 85. Powell on Dev. 256. Conditional limitations. 2 Vern. 394. 3 Durnf. 88. H. Bl. 30. Here was an interest in the devisor, even if the first limitation had been legal, that was not disposed of, and which the residuary clause would carry as a conditional limitation.
    If this will is considered on the words only, the estate is devised; all that was not disposed of is within the residuary clause, for it is not disposed of, if nothing passes.
    If it had been an instance relative to personal estate only, there could have been no doubt; for it will not be denied, that such a residuary clause would carry over alt that fell into the estate by lapse or otherwise.
    1 ask upon what ground can this be supported in the case of personal estate, that does not apply to the case now in judgment ? Is it that the intention of the testator is the rule ? It equally holds in one case as the other, and if the personal estate will go over to comply with the intent, so will the real. Is it that the will operates at the demise only as to personal estate ? The reason is -equally strong in this case, because the testator has given nothing in fact by the first clause.
    
      2 Bl. Rep. 736. “ All his estate, lands, &c. not therein before devised.” Now, whether it could in point of law take effect of not, it was a fact denied. It was determined on the intent, which plainly appeared to be that the heir should have it, for it was devised in fact to him. As the words did not necessarily carry it over, it became a question of construction on the intent, which was plainly in favour of the heir at law; but there is no such, intent in favour of the heir at law in this case, but quite the reverse. See Blackstone’s opinion. There was a latent reversion after making the will, which the testator devised by the codicil.
    If land be given to a corporation, and they are dissolved, it reverts to the donor. Co. Litt. 13. b. 2 And. 107. Godb. 211. 1 Roll. Abr. 816. See the cases in Ambler, 487. 643.
    
      Jenings and Key were for the appellee.
   The court of appeals affirmed the decree of the- chancellor, at June term, 1793.  