
    John W. Carter v. Lillie B. Reddish et al.
    1. In the construction of a will, it is well settled as a paramount rule, in this state, that the intention of the testator, as gathered from the whole will, must control, when such intention is not in conflict with the law or against public policy.
    2. Words in a will are to be understood according to their ordinary, natural, and legal signification, unless it is manifest from the context, or from other provisions in the will, that the testator has used them in a different sense, and unless the sense in which they were used is clearly apparent.
    8. Where real estate is devised to A., an infant son of the testator, in general terms, and the devise is followed by a habendum “ during his natural life, and to his heirs,” together with a limitation over to certain nephews and nieces, in case A. shall die within age, and without lawful issue, the words “ heirs ” in the habendum will be construed as a word of limitdtion, enlarging the life estate to a defeasible estate in fee-simple, if such construction be conformable to the general scope of the will, and the apparent scheme of disposition, and consistent with all the other provisions of the -will; and where a different construction would leave the fee of the premises undisposed of, in the event of A.’s death, without issue, after becoming of full age.
    4. The 47th section of the wills act of 1840, and the corresponding 53d section of our present wills act, were intended merely to forbid the application of the rule in Shelley’s case, where such application would defeat the manifest intention of the testator.
    Error to the Superior Court of Cincinnati.
    The defendants in error, who are the children of Stevenson Reddish, deceased, brought their action in the court below, to recover the possession of a lot in the city of Cincinnati, to which they claim title as devisees in fee under the will of their grandfather, Thomas 13. Reddish. Plaintiff' in error, who was defendant in the original action, claims title to the same premises, under a conveyance in fee-simple made by Stevenson Reddish in • his lifetime. The lot in controversy is one of those devised by the will to Stevenson Reddish ; and the rights of the parties depend on the question whether under this will Stevenson Reddish took an estate in fee-simple, or a mere life estate in the property devised to him.
    The court below held that the will in question gave to Stevenson but a life estate in the premises, and entered •judgment for plaintiffs below.
    Plaintiff in error asks a reversal of this judgment on the ground of supposed error in the construction given to the will by the court below.
    Tbe testator was possessed of considerable property, both real and personal, and resided in Cincinnati. He had two infant children, Sarah and Stevenson, and a wife, in whom he appears to have had no confidence. He had a brother and sister, residing in Manchester, England, each of whom had a family of children. He made the will in question in March, 1831, when he was contemplating a visit to England. The ship on which he sailed was wrecked on the voyage, and he was lost. The main provisions of the will which relate to the disposition of his property are as fol-. lows:
    “ I give and bequeath to my daughter Sarah the following real estate belonging to me, viz : My house and premises on West Third street; my house and premises on Mc-Allister street, near to-Fourth street, east; my house and all premises on New Market (or Eighth street); my house and premises on Cherry street, or alley; my house and premises on West Fourth street (a frame); a lot of ground, purchased of William Pierson, nearly opposite to Phillips & Speer’s paper mill, and a lot of ground, purchased of William Hill Woodward and wife, situated in the uorthern liberties in the township of Millcreek, being parts of lot No. 26, as per deed, etc.
    “ I give and bequeath to my son Stevenson thq following real estate, belonging to me, viz : My house and lot on Harrison street; my brick house and premises on West Fifth street; my frame house and premises on West Fifth street; my two brick houses on Centre street, together with a lot on which they stand; my frame house and lot on Centre street, near the corner of Smith street; my frame house and lot on West Front street, formerly owned by Anthony Thompson and William Kenyon conjointly; also a lot of ground in the town of Springfield; Ohio, purchased of John and Elizabeth Baldwin ; see records of Hamilton county, book 23, p. 424. Each of my aforesaid children to have and to hold the same during their natural lives, and to their heirs, and in case of the decease of both of my aforesaid children before they may be of maturity according to law, and without lawful issue, then the whole of the aforesaid real estate, as also all the real and personal estate, or any property whatsoever, which maybe coming to them through this my last will, to be left to the surviving ehil-. dren of my sister Elizabeth Bentley, and my brother John Reddish, both of the town of Manchester, in England,equally to-share and share alike the same. I give and bequeath to my children as aforesaid the whole of my remainiñg própei'ty, whether real or personal, not enumerated heretofore, subject, however, to the disposal other ways of any part or parts thereof (as I may see fit hereafter), to be equally divided between the said Sarah and Stevenson, at the time the said Sarah’ becomes of ago.”
    “ I will that the guardian of my children take into his kind keeping the following articles, to be given up to them before or at the time they and each of them become of age (as he shall see fit), viz : My portrait, painted by Corwine, together with a mantel time-piece, now in possession of -, guardian, together with my jewelry, plate, trinkets, etc., with the exception of my gold patent lever watch, seal, etc., to be given to my daughter Sarah, at the time aforesaid.
    
      “ The residue of the articles above alluded to — viz., my iron chest or safe ; my gold patent lever watch, chain, seal, and key; my books, of every description; my desk, with the boxes, trunks, etc., and in fact all of which may be found in my office (not otherwise disposed of) — to be given to my son Stevenson as aforesaid. And in case the decease of both my said children before becoming of age, then the aforesaid property, as well as all other property of which they may be possessed, or might become possessed on.their becoming of age, shall be given up to the surviving children of my brother and sister, now residing in Manchester, or elsewhere, as aforesaid. I will that my executors take immediate possession of all my furniture, beds and bedding, etc., wheresoever the same may be found, and dispose of the same to the best advantage, placing the amount thereof to the credit of my children, share and share alike.”
    “ Further, I will it to be understood that at the time my eldest child, Sarah, becomes of age, and a division of my property takes place, that the guardian is still to retain the share coming to my son Stevenson until he, my said son, becomes of full age, according to law, and then the said share to be given immediately up to him, and the functions of the guardian, as also the executor or executors, to cease.
    • “ In regard to a certain piece of property situated on Third street, and being part of lot No. 109, in the town of Cincinnati, I wish it to be understood that, although the same may have been conveyed by me on the 19th day of August, 1826, to my wife Phoebe, subject, however, to my own control thereafter, that the same be strictly retained and given up to my daughter Sarah by my executors, as before provided for in this, my last will; the said Phoebe having never been worthy of such a gift, and said deed being forced from me, by her threats to destroy certain property in notes, bills, etc., which she had willfully purloined and secreted, E. Hotchkiss and J. Poster, Esq., being witnesses to the transaction.”
    
      Aaron F. Perry, of Perry & Jenney, for plaintiff in error:
    I. There is no expression in the will, indicating that testator had any other estate in his mind for any one, than an estate in fee. He spoke in the concrete of “ real estate,” of “ property, real and personal.” It was devised to his children, and if they should live to maturity, it was to remain theirs. But in case of the death of both, it was to be “ left,” “ given up” to other devisees.
    Had it been given to them for life only, the interest, rents, and accumulations during their lives should have been theirs. On the contrary, all these accumulations were to become a part of the estate, and if anything had to be “ given up” to nephews and nieces, all was to be given up, which otherwise had been given to his children. There is no indication that the property, which, in the contingency supposed, was to be “ left” or “ given up” to the children of his brother and sister, was to be theirs in any different, superior, or more unlimited sense, than it was to be his own children’s, in case they should live to enjoy it. If his children should live to get possession, to a disposing age, there is no indication it was to be “left” or “given up” to anybody.
    If a different intention anywhere appears, it is in the habendum,.
    
    The meaning which does appear there is in no sense inconsistent with the devising clause. Hawkins, 203, 204; 1 Redfield on Wills, 473, sec. 4; Ib., n. 6; Frogmorton v. Holly, day, 3 Burr. 1623; Hawkins, 136, 137, 215.
    As to dying without issue: Hawkins, 215; Redfield on Wills, 706.
    An express estate for life to a devisee may be enlarged by implication. See authorities already cited; King v. King, 12 Ohio, 300. If, then, an express estate for life may be enlarged by implication, it may assuredly be enlarged by express words. Hawkins on Wills, 75.
    The language in this will, -“decease . . . without issue,” does not mean “ a general failure of issue,” but does mean failure of issue living at the time. Parish’s Heirs v. Ferris, 6 Ohio St. 563; Niles v. Gray, 12 Ohio St. 320; Hawkins, 176, 214; 3 Greenleaf's Cruise, 444.
    II. If I am right in the construction of this will, there was no life estate in testator’s children, and no remainder to their heirs, issue, children, or descendants. Consequently the rule in Shelley’s ease has no bearing on it. But if the other side is right in supposing the will to' devise a life estate to testator’s children, with remainder in fee or intail to heirs, children, issue, or descendants, the rule in Shelley’s case is in point.
    The same remark is true of section 53 of the wills act (2 S. & C. 1626), which is identical with section 47 of the wills act of 1840 (Swan’s Stat. 319), and cbmmonly spoken of as abolishing the rule in Shelley’s case. The present will, having been made in 1831, can not, of course, be affected by a statute passed long after the title vested under the will.
    As to whether the rule in Shelley’s case is operative in Ohio, see 12 Ohio, 471; 2 S. & C. 1626, Judge Swan’s annotation.
    The rule in Shelley’s case has been used as a rule of construction, like any other rule, to ascertain the meaning of a testator. In this sense I do not understand it to have been abolished or impaired. It has also been used as an imperative rule of property, to be enforced even as against the intention of testator. In this latter sense it has been abolished by the Ohio statute, and extensively elsewhere.
    “ The great difficulty has been,” says Kent, “ to settle' where the rule, and where the intention in opposition to the rule, shall prevail.” 4 Kent, 721. Nearly two years after Reddish’s will vested his estate in somebody, our supreme court held the rule in Shelley’s case to be in force in Ohio, as an arbitrary rule of property. McFeeley’s Lessee v. Moore’s Heirs, 5 Ohio, 465. More than ten years afterward, December 7, 1843, after arguments unusually full and elaborate, Armstrong v. Zane, 12 Ohio, 287, and King v. Beck, 12 Ohio, 390, were decided. In Armstrong v. Zane, the court expressly asserted the rule as a rule of property, and such was clearly the ground of decision in the other cases. It is quite clear, therefore, that if an application had been made to any court in Ohio, having jurisdiction to construe Reddish’s will, any time within fifteen years of its taking effect, the rule in Shelley’s case, so far as pertinent, would have prevailed in its arbitrary sense.
    Indeed, all the cases decided in Ohio on the basis of the rule, wmre cases where the language construed would have caused more difficulty as to the real intention, than is caused by the language in Reddish’s will.
    In Greenleaf’s Cruise, he says the rule, “ as now settled and expounded by modern decision,” has the following qualification, viz : “ Unless it clearly and unequivocally appear that the words (i. e., heir or heirs of the body) arc used merely as descriptio personarum.” 2 Greenl. Cruise, 305, top paging 381, n. 1. The note also states that Judge Story regarded the rule in the United States as a rule of construction.
    The will of Reddish, in the devising clause, was broad enough to carry a fee. The general frame of it was iu accord with the idea of a fee in the first takers. Then in the habendum clause, “ to have and to hold to them during their natural lives and to their heirs,” without break, punctuation, or restriction of meaning; then the devise over is on condition of first devisees “ ilying before maturity,” which language would by itself enlarge a life estate to a fee simple by implication. Then another branch of the condition, “ dying without issue,” expressly limited to a particular time, and yet farther by legal construction, not meaning a geueral failure of issue, therefore, never at any time held to restrict a fee, but always to make a condition for the devise over.
    There is nothing in the will which, by recognized rules of construction, can limit the fee simple, which was clearly given in the devising clause, and again in the habendum. Besides this, the devise over is unmistakably a fee given in substitution of the fee first given to testator’s children, in case that fee should be defeated by the happening of specific conditions. 1 Redfield on Wills, 421.
    
      Fdward Colston, also for plaintiff in error:
    We insist that Stevenson Reddish took a fee simple by the will of his father, Thomas Reddish, in the property in question, and that the children of Stevenson, who are the plaintiffs in this suit, took nothing under their grandfather’s (Thomas Reddish) will. That by said will the children of Stevenson acquired no title whatever in or to the lands and other property devised to Stevenson.
    The words “ during their natural lives and. to their heirs,” taken alone will convey a fee, by force of the rule in Shelley’s case. See Fearne on Remainders, vol. 1, (marg.) p. 149, par. 20; Ib., (marg.) p. 193, last par. (3d Amer. from 8th Bond, ed.); Preston on Estates, 263, ch. 111, vol. 1; 4 Kent’s Com. (marg.) 215; Williams on Real Property, top p. 248 (marg. p. 234) et seq.; Law Library, 7th vol. (Essay on Disposition of Real Estate); McFeely’s Lessee v. Moore’s Heirs, 5 Ohio, 465; Armstrong v. Zone’s Heirs, 12 Ohio, 287; Beck, Adm’r of King, v. King’s Heirs, 12 Ohio, 390.
    Section 53 of our present wills act (S. & C. 16, 26), which has abolished the above rule in this state, so far as its application to devises is concerned, was passed March 23, 1840 (see 1 Curwen, 691; sec. 47 of the wills act of 1840), nine years after the making and probating of this will.
    This will can not therefore be affected by this subsequent act of the legislature. De Peyster v. Glendenning, 8 Paige’s Ch. 295, 804; Shoonmaker v. Sheely, 3 Hill (N. Y.), 165 ; 12 Ohio, 471.
    It is perfectly clear, then, that if the testator had stopped at the word “ heirs,” that if the will contained no other words descriptive of the quantity of interest than the words “to have and to hold during their natural lives, and to their heirs,” that each child, Sarah and Stevenson Reddish, would have taken a fee in their respective devises.
    It remains to considey what effect the words immediately following the word “ heirs ” have.
    We deny that these words, “and in case of the decease of both of my aforesaid children before they be of maturity, according to law, and without lawful issue,” which introduce the ulterior devise, have the effect of impairing the meaning of the word “ heirs” occurring in the prior devise, so as to exempt that prior devise from the operation of the rule in Shelley’s case. On the contrary, that these words do not refer at all to the quantity of estate bestowed by the first devise, but that they simply designate a contingency on the happening of which the estate created by the first devise, whatever is the quantity of that estate, shall pass over. The contingency named is the decease of both Sarah and Stevenson under maturity according to law —.that is, under twenty-one, and without lawful issue. 1 Eearue, 149, 193; 4 Kent’s Com. 214 et seq.; 5 Ohio, 465; 4 Preston on Estates, 273-284.
    As to the rule of construction where the testator uses legal words, see Eearne Con. Rem. 168 et seq.; and the multitude of cases there cited in margin; 2 Jarm. on Wills, top p. 204 (marg. p. 277) et seq.; Ib., top p. 526 (marg. p. 744), 17th rule of construction; 2 Williams’ Ex. (2d Amer. ed.) 788, 789; Ide v. Ide, 5 Mass. 500; Mowat v. Carow, 7 Paige, 328; Lord Alvanley, in Poole v. Poole, 3 Bos. & Pul. 620; Lord. Eldon, in Jesson v. Wright, 2 Bligh, 56; Lord Redesdale, in S. C.
    As to the construction to be given to the words “ dying without issue,” see 2 Jarman on Wills, 301, 418, 428; Williams on Real Prop. 210, n. 1; Parish’s Heirs v. Ferris, 6 Ohio St. 563; Niles v. Gregory, 12 Ohio St. 320.
    As to what is meant by “ heirs,” see 2 Jar. on Wills, 204, top paging; 1 Fearne on Con. Rem. 149; 4 Pick. 198, 205; 2 Pick. 243; 19 Barb. 500; 31 Wend. 521; King v. Beck, 15 Ohio, 559; Stevenson v. Fvans, 10 Ohio St. 307; Collier v. Collier, 3 Ohio St. 369; Niles v. Gray, 12 Ohio St. 320.
    
      Matthews, Ramsey & Matthews, for defendants in error:
    It is contended, on behalf of the defendants in error, that Stevenson Reddish had a life estate merely, with remainder in fee to the issue of Stevenson Reddish, who should survive him (or, what would be a legal equivalent under our statutes to restrict entailments — a fee tail in Stevenson Reddish), with remainder over by way of ex-ecutory devise in the event that he should die under age, and without issue surviving him, to the surviving children of the testator’s brother and sister. Parrish’s Heirs v. Ferris et al., 6 Ohio St. 563.
    It may be, that, if the devise had been in these words, “ I give and bequeath to my son Stevenson the following real estate,” and it had stood alone, without any qualifying context, the estate of Stevenson would have been a fee simple. But that is not the case. The language cited is followed by the immediate context, “ each of my aforesaid children to have and to hold the same during their natural lives, and to their heirs, and in case of the decease,” etc. The plain, obvious, popular meaning is that he shall not convey it away from his children. When that life estate should be ended, he then gives it to the heirs of his son Stevenson; and who he meant by his sou’s heirs is evident enough, for he further provides, that if his son should die under age and without surviving issue, the estate intended for those heirs should go to the children of his brother and sister. His son’s heirs, then, for whom he desires to make provision, are his son’s issue living at his son’s death. He provides first for his son; then for his son’s issue, if he leave any; then, if he dies without leaving any, for his nephews and nieces.
    This, we submit, is the natural construction of the will —what would occur to plain people, looking at it merely to discover its meaning, and taking its language in its usual and ordinary sense, as opposed to the artificial and technical interpretation forced upon it by the use of arbitrary rules, applied in a cheap, mechanical, and inconsiderate way. Smith v. Hawkins, 27 Ohio St. 371; Harkness v. Corning, 24 Ohio St. 416.
    If, in the case at bar, the words “ and to -their heirs,” occurring after the limitation to the testator’s son and daughter, “ during their natural lives,” be restricted to mean “ heirs of their bodies,” or “issue,” then, the estate devised would be an estate tail in Stevenson Reddish, executed by our statute to restrict entailments, in his issue, tlie plaintiffs below, as an estate in fee simple. Roddy v. Fitzgerald, 6 H. L. C. 823. And such, a construction is supported by the consideration, elsewhere urged, that, as the ulterior limitation over was to take effect only on the death of the testator’s son under age, and without issue, the intention was manifested that the issue of Stevenson were the persons described as his heirs. If so, it is immaterial whether they take by descent or by purchase. In the former case, their father had an estate tail; in the latter, an estate for life merely. The result, so far as this controversy is concerned, is the same either way.
    We can understand that a devise for life maybe enlarged to an estate tail, by implication, arising in consequence of a limitation over or a dying without issue living, and before attaining a particular age ; because, in such a ease, the intention of the testator to make the issue of the first taker an object of his bounty is plain; and such an intention upon the limitations in Reddish’s will would be strictly executed by the operation of our statute of 1811, to resti’ict entailments, which would make Stevenson Reddish the first donee in tail, but for his life only, perfecting the fee absolutely in his issue.
    The plain and manifest intention of the testator, to limit to his son Stevenson an estate for his life only, is expressly declared, and can be defeated only, if at all, by the application of the rule in the Shelley case.
    'Whether that application will be made, depends on the effect this court will give to the decision in the case of King v. Beck, 15 Ohio, 559. According to that decision, it is impossible to distinguish this case from that.
    Since the passage of the act of 1840 relating to wills (sec. 47), no controversy could arise upon such limitations as are contained in Reddish’s will.
    Hid the testator use the words in question for the purpose of giving to his son and daughter, in case they attained full age, the absolute power of alienation; or did he use them to describe a class of persons to take the estate after the déath of his son and daughter? Now, there is nothing whatever in the will, other than these very words themselves, to show that he meant to enlarge the estate of his son and daughter beyond an estate for life; and the use of the words descriptive of the estate given to them, “to have and to hold the same during their natural lives,”is entirely inconsistent with such a result. A testator inops consilii, may be supposed to have used the words, “and to their heirs” in a vague and indeterminate sense, for the technical and popular usage, to which they are subject, differs and varies widely; but the phrase, “during their natural lives,” as applied to an estate in lands, is not capable of ambiguity. The technical and popular meaning are identical and uniform.
   Scott, J.

In the construction of a will, it is well settled as a paramount rule, in this state, that the intention of the' testator, as gathered from the whole will, must control, when such intention is not in conflict with the law or against public policy. It is also an established rule of construction, that words in a will are to be understood according to their ordinary and legal signification, unless it is manifest from the context, or from other provisions in the will, that the testator has used them in a different sense, and unless the sense in’which they were used is clearly apparent.

Reading the will under consideration, in the light of this latter rule, the question is, what is the quantum and character of the estate which the testator intended that his children should take in- the realty specifically devised to them ?

The English rule, that a devise to A. and his heirs, followed'by a devise over in case A. die without issue, will be cut down to a fee tail in A., and the woi’d heirs be construed as meaning issue, is owing to the fact that in that country the words “dying without issue” are construed as meaning an indefinite failure of issue. 2 Jar. on Wills, 301. In this state, however, it is well settled that the words “dying without issue ” import a dying without issue living at the death of the prior devisee. Parrish’s Heirs v. Ferris, 6 Ohio St. 563; Niles v. Gregory, 12 Ohio St. 320. Still, we should have no hesitation in finding, from the language of the-will before us, that the. testator intended a life estate only for the first devisees, if the sole condition of the limitation over to the nephews aud nieces had been the dying of his children without issue ; and without reference to the time when they should so die. But such is not the language of the will. The testator does not attempt to make any disposition of his property, after the- death of his children, except in the event of the death of both of them before becoming of full. age. And yet it is obvious from the general and comprehensive terms of the residuary clauses, that he was anxious to leave no property undisposed of, which it was in his power to control. If he intended to give his children a mere life estate in the premises, then he purposed, in case either of them should live till majority, and both should die without leaving issue, that the fee of- the land should remain wholly undevised. Eor it is very clear that, in such case, the contingent devise over to his nephews and nieces could never take effect. Had a life estate only been intended for his son, why should the remainder over depend on his death during minority ? Hence, a very strong implication arises that the testator intended by the words “ and to their heirs” (found in the habendum clause), to give to his children an estate of inheritance in fee simple in the premises devised, which should become indefeasible upon their attaining an age which would render them legally capable of controlling and disposing of it. His scheme of testamentary disposition contemplated his children as the primary objects of his bounty. Should both of them die during minority, and leaving no issue, then he intended the estate to pass over to certain nephews and nieces in fee simple. This purpose he could effect by an executory devise, which should make the estate given to his children defeasible, upon the happening of the contemplated contingency.

But this defeasible character of the estate given to his children, was in no case to affect or defeat their estate “during their natural lives.” It is clear also that he did not intend to prefer the children of his brother and sister to the lawful issue of his own children; for the limitation over is in case bis own children shall die under age, and ‘without lawful issue. But it is to be presumed that he knew the statutes of descent of this state, and was aware that if his children should die under age, and of course intestate, their issue would1 succeed to the inheritance, unless he should otherwise direct. With the statutory rule of descent he was content, and made no provision to the contrary.

If one only of his children should die during minority, leaving no issue, it is to be presumed he knew that his surviving child would, under the statute of descents and distribution, take, as heir, the property devised or bequeathed to the one so dying.

That this would accord with his wishes, is evident from the fact that the gift over is conditioned upon the death oí both his children during minority.

If, then, by taking the words of the habendum, “ and to their heirs,” in their ordinary and legal signification, as words of limitation, defining the extent of the estate or interest in the lands devised (which it is the proper office of a habendum to do) — if, by assuming that the testator meant just what he has said, we,can give full effect to the whole scheme of disposition, so far as it is clearly shown in any and every part of the will, we have no right to conjecture that the testator may have used the word “ heirs,” in a different sense, as meaning children or issue; and thereupon to change the testator’s scheme for one of our own. There is no direct devise of the laud in question to any one except to Stevenson Reddish, and the ulterior devisees, his English cousins, in the event of his dying within age and without issue. The word “heirs” does not occur in the devising clause proper. But defendants in error claim that this word heirs, means children or issue, because the condition of the limitation over is that Stevenson shall die without issue, which could only have been intended for the benefit of his children ; but, as we have said, this implication is rebutted by the provision that the property shall go over only in the event of Stevenson’s death during minority. If he live to be twenty-one, the testator has said, in effect, that the property devised to him shall never go over, -under the will, issue or no issue. This condition could be intended Only for the benefit of Stevenson himself. We can not, therefore, be even reasonably certain that the testator used the word “ heirs” as descriptive of the children that might be born to Stevenson, and to whom he intended to devise the fee simple. Indeed, he seems to have understood the distinction between heirs generally, and children or issue. He uses both words in the same séntence. 'When he speaks of “lawful issue,” he evidently means children; and when he speaks of “ heirs,” why shall we not presume that he means "heirs'generally, as the word usually and legally imports ? There could be no room for a possible doubt on this question, were it not that the testator has said that his children should have and hold the premises previously devised to them “ during their natural lives .”

These words standing alone, or if followed by the word only, would clearly indicate an intention to restrict the estate previously given in general terms, to a mere life estate. But this expression does not stand alone. His children are “to have and hold during their natural lives, and to their heirs.” Here we find an apparent express enlargement of the estate given, to a fee simple. The reason fbr this form of expression may be learned by looking to the remainder of the sentence, in which there is a contingent devise over. Construing the whole sentence together, we think the meaning of the testator can not be regarded as doubtful.

He intended that each of his children should take an estate in fee simple in the premises devised to them respectively. But he farther intended that this estate should be defeasible, and terminate with “ their natural lives,” in case they should both die before attaining the age of twenty-one years, and without lawful issue. Upon the happening of that contingency no one should take the premises devised, as heir to his children, or either of them, but they should pass to the ulterior devisees under the will.

This construction is in harmony with the general scope of the will. For, after disposing of the real estate specifically described, and which he divides between his two children according to his own judgment, the testator proceeds to give to his children the whole of his remaining property, whether real or personal, to be equally divided between Sarah and Stevenson, when Sarah (the elder) should become of age. Stevenson’s share, upon this division, is to be retained by his guardian until he becomes of age, and then “ the said share to be given immediately up to him, and the functions of the guardian, as also the executor or executors, to cease.”

There can be no doubt that as to all this residuary px’opex’ty, whether real or personal, the childrexx were to be the absolute owners, with full power of control over it, as soon as they would respectively become of age. And yet all this property, as well as the accumulations arising from interest, or the rents of any part of the whole estate, was subjected to the same limitation over, in favor of the same nephews and nieces, and upon the same conditions, as in the case of the lands and lots specifically described and divided by the testator between his children. We see no reason to doubt that he intended their title to the property specifically devised to be equally absolute and indefeasible, if either of them should live to be of full age, or should leave lawful issue.

Such would, very clearly, be the construction of the will under the rule in Shelley’s case. But, by the 47th section of the wills act of 1840, and the corresponding 53d section of our present wills act, it is declared that “ when lands, tenements,orhereditaments are given by will to any person for his life, and after his death to his heirs in fee, or by words to that effect, the conveyance shall be construed to vest an estate for life only in such first taker, and a remainder in fee simple in his heirs.” The rule of construction prescribed by these statutes, was intended to give a controlling effect to the clear intention of the testator, and to forbid the application of the rule in Shelley’s case, when such application would defeat the manifest intention of the testator. Were we to regard this statute as applicable to wills which, like the one before us, took effect before its passage, we should still he of the opinion that the language of the will under consideration is not such as to bring it within the class of cases contemplated by the statute.

We think the judgment of the court below should be reversed, and the petition of the plaintiffs, in the court below, be dismissed.  