
    William and Flora King v. Beck, Administrator of Christian King. Beck, Administrator of Christian King, v. The Widow and Heirs of Christian King.
    A devise to A for life, and, after his decease, to the heirs of his body, and failing heirs at his decease, then over, is an estate tail in A.
    Where personalty is conveyed by such devise, it is an absolute gift.
    Where such devise of land contains a power to use, and the limitation over, is only of what A shall die seized of, the estate of A is a fee simple.
    These cases were reserved in Fairfield county.
    
      The first is a Bill in Chancery, to compel the administrator of 391] Christian to convey certain bank stock. *Thc second is a Petition, by the administrator of O. King, to sell lands. Both depend upon the construction and effect of the following clause of William King’s will:
    “ If it so please Grod that, at the time of my decease, I should die without any lawful heir or heirs, born in wedlock, in such case I will and bequeath all the property I may be possessed of before my decease, to my brother Christian, without any reservation, to be used by him while he lives ; and if it so please Grod that, at the time of brother Christian’s decease, he should be possessed of a legal heir or beirs, born in wedlock, I then will and bequeath all and every kind of property which might be considered mine in my lifetime, and of which the said Christian may be seized, at the time of his decease, to such heir or heirs, and no other. But should I myself die without lawful heirs, and also my brother Christian die without heirs born lawfully, as above stated, I then will what may be considered my share, after my brother’s decease, and not before, to my two sisters’ children, Ish and Cassell, in equal dividends or shares, and not to be used by any of them until they come to the age allowed by law.”
    The testator died possessed of both real and personal property. Christian King survived the testator, and died, leaving heirs of his-body. The sisters of the testator had children living, both at the-death of the testator, and at the death of Christian King.
    H. Stanbery, for the administrator, on the petition to sell.
    The fee passed to Christian. It is obvious that the will is very in-artificially drawn, but we think the meaning can not be mistaken.
    The rule is, that in looking for the meaning, we must go back to the time of the execution of the will. We find, then, that the testator, and his brother Christian, were unmarried, and partners in all their property and speculations. They were as one person. The testator had two married sisters, who, so far from being objects of his bounty, 392] were carefully ^excluded from taking any portion of his estate, in any event. And the only motive that can be assigned for the making of the will, was to exclude these two sisters for the benefit of his brother Christian. This is apparent. If William King had died intestate, the two sisters would have taken the property, in equal portions, with Christian. This is guarded against. Christian is the first and sole object of the testator’s bounty : Christian’s lineal heirs next, to the exclusion of the sisters and their children; but if Christian should die without such lineal descendants, what is to become of that, part of the property of which Christian may die seized? The course' of descents would take it to these same sisters. To guard against that,, what so remains, is to go to their children.
    Now no one can read this will, and consider the state of things when it was made, and not be satisfied of the intent of the testator, (and that is everything,) to give Christian as large an estate as he could— to give him a larger interest than he would take, without the will, as one of his three heirs at law, and that all the subsequent limitations were introduced to prevent any fraction of the testator’s property, uneonsumed or undisposed of by Christian, from ever going to his sisters. The intent of the testator was to enlarge Christian’s interest in his. property, beyond what it would be without the will — not to limit it. This is the primary general intent. Then, as subordinate to this, there is a particular secondary intent to exclude the sisters, in any contingency. The defendants are brought to say, that the intent was to-limit Christian’s interest, by cutting down the fee simple which he would have had in one-third of the property, upon the intestacy of' William, to a mere life-estate in all the property, with no further power over it than its mere use, and that this strange limitation was introduced in favor of children unborn, and at a time when the devisee was not so much as married !
    The rule in the construction of a will is, to look to the surrounding circumstances at the time of the act: such as the situation and relation-of the parties, or their family — Markell v. Winter, 3 Yes. jr. 540 — the ages of the several devisees — *their being married or unmarried, [393- and similar collateral circumstances. Low v. Lord Huntingtower, 4 Russ. 532, note a; 3 Cond. Eng. Ch. S. C. 781; Shelton v. Shelton, 1 Wash. 56.
    We find, then, that these brothers were unmarried, and bound together by the closest and most confidential business relations, at the-date of the will. There is no ground to suppose the testator had any want of confidence in his brother Christian, or that there existed any reason why the property should be saved, by limitation, over irom its-perfect ownership by Christian. Here was no prodigal parent, with children the especial objects of the testator’s bounty and affection. The brothers were as one person — they were building up an estate together, and it is no way singular, under such circumstances, that William should wish to give all to Christian, in the event of his surviving ; but it would be most strange if he should, for the security of' Christian’s children, then unborn, feel so little confidence in the •capacity and discretion of his brother and partner, as to give him ■only a usufruct in his half of the common property.
    In view of all theso circumstances, let us look at this will, and first maik the similarity of the bequest upon the two contingencies, the ■death of the testator without lineal heirs, and the death of Christian without lineal heirs. They are almost in identical language. “ If (says the testator) I die without any lawful heir, or heirs born in wedlock, in such case I will and bequeath all the property I may be possessed of, before my decease, to my brother Christian, without any reservation, to be used by him while he lives ;” and he proceeds : If Christian dies possessed of a legal heir or heirs, born in wedlock, then he devises all the property which might be considered his, and of which the said Christian may be seized at the time of his death, to Such heir or heirs, etc.
    The testator, of course, meant to remain the absolute owner of all his property until his decease, and that no part should go to Christian, except what he (the testator) might be possessed of at the time of his 394] decease; and then, intending the same large *and unrestricted interest to go to Christian, which he had reserved to himself, he uses, ■almost word for word, the same language — in substance the very same —whatever I die possessed of, shall go to Christian ; whatever he dies ■seized of shall go to his lawful heirs.
    If there is any difference, they ms disponendi is given to Christian in •stronger language than that which the testator uses as to himself.
    He gives the whole property, real and personal, to Christian, without any reservation, to be used by him while he lives, and at his decease he gives only what, of all the property, real and personal, may remain, to Christian’s heirs.
    I am not now considering the legal effect of the yws disponendi in ■overcoming a limitation of the estate, beyond the person to whom this power is given. This belongs to another view of the case. I am looking at it, simply, to gather the meaning of the testator. Can there, then, be any doubt as to the intent ?
    Looking to the circumstances, is it possible to suppose the testator meant to limit Christian in his enjoyment or control over the property ? —that he intended to cut him out of the absolute ownership which he would have had in the third, if no will had been made? — that he was fearful of trusting him with the fee ? — that he intended to make him a mere tenant for life, with nothing but the usufruct, and to give the absolute title to ehildrén, then unborn, in preference to his own brother and confidential partner ? — and, worse than all, (according to the construction of the defendant,) in the event of Christian’s leaving a grandchild, but no child, the estate should go to the children of his sisters, Ish and Cassell, rather than to that grandchild ? It comes to that if Christian had but a life estate, and not a fee tail or fee simple.
    But, it is argued, that tlieyas disponendi is not expressly given, and that the testator meant, in giving all his property, without reservation, to be used by Christian, and in giving that part of which he might die seized, to his children, to give only a usufruct, not a power of disposal, and that so much as was *not consumed in the use, was what [395 was intended by the words, “ of which the said Christian may be seized at the time of his death.”
    The construction claimed by the defendant does not satisfy the words of the will. They say the residuum was intended tobe the part unconsumed in the use; but this will not apply to the realty, which can not be consumed. The testator does not distinguish between personalty and realty. He gives the whole, under the denomination of all his property; the devise is in solido, and the part to go over is just so much of the whole as Christian may die seized of — by the way, very apt words to convey the idea of property in lands.
    To show that this power of disposal may be given impliedly, and that this idea of an unconsumed residuum has no countenance, I will refer to some of the cases.
    The Attorney General •v. Hall, Eitz. 314, cited and relied upon in Jacksons Robins, 16 Johns. 584. In that case Hall, the testator, owning real and personal estate, gave it to his spn, and to the heirs of his body; and if he should die, leaving no heirs, then he gave so much of the real and personal estate as his son should be possessed of at his death, to the Goldsmith Company. It was held that the limitation over to the Goldsmith Company was void, because the absolute ownership had been given to the son.
    Ide v. Ide, 5 Mass. 500. The testator devised to his son, and to his heirs and assigns forever, certain real and personal estate, and then added, that if the son died without heirs, the estato which he should leave was to be equally divided among two other persons. It was held that the son had the absolute title. C. J. Parsons says : “ Whenever it is the clear intention of the testator that the devisee should have the absolute property in the estate devised, a limitation must be void, because it is inconsistent with the absolute property supposed in the first devisee, and a right in the first devisee to dispose of the estate devised at his pleasure, and not a mere power of specifying who may take, amounts to an unqualified gift.”
    *These cases show that the'power of disposal, when not given expressly, is raised, by implication, from language nearly identical with the language in William King’s will. They were both cases of real and personal estate, embraced in one devise, and in neither was it considered that the part of which the devisee died possessed, in the one case, or the part he should leave, in the other, applied only to so much of the personalty as should remain unconsumed in the use.
    Here, then, in addition to all the other circumstances, to show that the testator meant to give Christian the absolute ownership, it will appear that he intended to give him full power to dispose of the entire property as his own. Without, for the present, claiming any effect for this power of disposal, beyond a mere help to ascertain the intent, we do hold that it is quite conclusive as to that
    So much, then, for the intention, clear and manifest, to give Christian a fee simple ; but if that were not so manifest, I claim that his interest must be held to be of that character, by force of -this unlimited power of disposal.
    Van Trump, for the Administrator, in the suit of William and Flora King v. Beck.
    I shall maintain—
    First: O. King took an estate tail by express words of devise.
    Second : That it is such by implication.
    1. By devise over to collaterals of the first devisee.
    2. By devise over to collaterals of the testator, they being also collaterals of the first devisee.
    No technical words are necessary, especially in a devise, to. create an estate tail. It is defined in the books to be an estate of inheritance, descendible to the heirs of the body, or the lineal descendants of the person to whom the particular estate is granted. In the case at bar, the substance of the devise is, to Christian King for life, and to his heir or heirs born in wedlock. It clearly denotes a lineal succession, to the exclusion of collaterals. But it may be said by the counseL 397] for complainants, *that the first doubt which presents itself to the mind is, whether the body from which the issue is to spring, is designated with sufficient legal certainty ? And, if we were to stop at some of the elementary books, it would seem that this doubt, if there be such, would be resolved against such certainty in this case ; as, for instance, Blackstone (2 Com. 113) defines an estate-tail general to be where lands or tenements are given to a man and the heirs of his body begotten. But the modern, as well as ancient, authorities are clear that it is not necessary that the body from which the issue is to spring should be mentioned in express terms. It is sufficient, if it can be reasonably implied. Does this reasonable implication arise upon the lauguage used in this will? Can there be a reasonable doubt as to what body is referred to? The language is, “ and if it shall please Crod that at the time of brother Christian’s decease he should be possessed of a legal heir or heirs, horn in lawful wedlock,” etc. Wedlock of whom? Why of his brother Christian, ex necessitate. In its literal sense it can apply to none other than his immediate heir; because he could not have an heir in a remoter generation, by lineal succession from himself, without first having an heir of his body, “ born in lawful wedlock,” as a new propusitws for such remoter generation. It can not, therefore, be said with truth, as I have no doubt it will be with great ingenuity, that the terms, “ born in lawful wedlock,” are too vague and uncertain to denote, with legal precision, the body out of which the issue is to come; .or, that they may apply as well to the wedlock of others as of Christian himself, if those others are capable of standing, in default of lineal issue, in the relation of heirs to him as first devisee. The only true construction which can be put upon this language, standing in the relation which it does to the whole context of the will, is, that it means a devise to Christian King for life, and the heir or heirs of his body. For though as to a deed the rule is applied stricti juris, yet in regard to a will, to gratify the intent of the devisor, courts will go even so far as to supply the words “ of his body.” 1 Ld. Raym. 186. It is not necessary to use the *words de corpora. [398 In the case of Church v. Wyatt, Moore, 637, the devise was held good as an estate-tail, although it was to A. at hasredibus suis legitime procreatis. In Barrett v. Beckford, 1 Ves. 521, which was a devise to A. and his legitimate heirs, Lord Hardwicke says, in terms, the proper construction of legitimate heirs is, heirs of his body, lawfully begotten ; for if to him and his heirs lawfully begotten, that would be heirs of his body. So in the case of Hall v. Vandegrift, 3 Bin. 374, where the words of grant were “ to him and his lawful begotten heir forever,” it was held to be an estate-tail. It is to be observed here that no technical or precise form of words are required, either by deed or in a will, to restrain the general import of the word heirs to the lineal descendants of the devisee or grantee. Thus, Lord Coke says, if lands be given to B. et hoeredibus quosidem B. deprima uxore sua legitimeprocur ant; this is a good estate-tail, although B. has no wife at the time, without the words de corpore; 1 Inst. 20, b.; 3 Salk. 336 ; 1 Root,. 96 ; 3 Call, 342 ; 8 Mass. 41 ; 4 Mass. 189 ; 1 East. 259. It is clear, therefore, that no objection can be taken as to a question of tenancy in tail upon this point in the case at bar; for in some of the cases above cited, the judges have gone much farther than we now ask this court to go, upon this branch of the case. Thus far I have shown that this may be a tenancy in tail, so far as the language in regard to the body out of which the issue is to spring is concerned.
    The question now turns upon the distinction, taken by Mr. Ewing, to wit: whether Christian King was tenant in tail or tenant for life only, with remainder over in fee to his children as purchasers. Mr. Ewing bases his distinction upon the ground of the terms used in this will, “ heir or heirs.” Now I shall show hereafter that the term “ heir ” is just as legitimate a word of limitation as the word “ heirs ” can be. Does the distinction, then, rest upon the alternative sense of the words used, “heir or heirs?” It certainly can not; because, grant the word “ heir,” when used alone, without any qualification, is to be taken in the restrictive sense as a word of purchase, docs not 399] *the superadded word “ heirs ” enlarge the legal force of the former into equal operative efficacy with the latter? Counsel rely very confidently upon Archer’s case, 1 Co. 66, as sustaining their view of the case at bar. But a close examination of that case shows that they have entirely misconceived the true point of discussion, and more especially have they fallen into error in its application to the principles which must govern the case now before the court. It is claimed by counsel that the terms “ heir or heirs ” are mere y deseriptio persona, and not words of limitation to the lineal descendants of C. King, in infinitum. Archer’s ease is relied upon as sustaining this distinction. The devise in that case was to A, for life, and afterwards to the next heir male of A. and to the heirs male of the body of such next heir male. The controlling circumstance in this case in Coke unquestionably was, that the limitation of the estate was engrafted upon the word heir ; that is to say, to the heirs of such heir, thereby distinguishing between the heirs of the ancestor and heirs of the heir, and indicating beyond controversy that the word heir, in the singular number, was used as designatiopersona, and not for limitation of the estate. The language used by the devisor in that case was tantamount to words like these: “ to A. for life, and afterwards to B. and the heirs male of B.” Now how is the devise in the case at bar synonymous with that in Archer’s case? William King devises “ to his brother Christian, for life, and his heir or heirs, born in wedlock,” etc., without super-adding, as is the ease in Coke, the words, and the heirs male of that heir or heirs. If such were the fact, Archer’s case might present some difficulty. It does not follow that because William King, the devisor, used the word heir in the singular number, he meant theveby to designate a particular individual ; because the construction of that word, either as a word of purchase or of limitation, when used in a will, must depend upon the intention of the testator, as drawn not from the use of the word per se, but from the whole context of the will. Like other expressions, it has its appropriate legal sense, when uncontrolled by some arbitrary intent in the mind of the devisor, other than *its legal signification, and equally claims the protection of [400 that principle which forbids us to depart from the established legal import of any term, without a clear manifestation of intention to use it as a sign of some other given idea. The legitimate force and office of the word heir or heirs of the body, is to describe and mark out the lineal succession of an estate tail. They are rarely, if ever, used without an intention to create an estate-tail. Even the word issue, when used in a devise, has primarily, in a strict legal sense, independent of any particular intent, the same import with the words “ heirs of the body because it has been established, according to the dictum, of Lord Harkwicke, ever since the case of King v. Melling, 1 Vent. 255, that, in a will, the words issue of the body, are as strict proper words of limitation as the words heirs of the body, and equally give an estate-tail in lands legally devised. Archer’s case, then, although at first blush it looks that way, is not an authority which can have any controlling influence in the decision of the case at bar. From the language used by Lord Coke, in his report of that case, it would seem that it turned upon the fact that the grant to Robert Archer was an express estate for life, with remainder to the next heir male in the singular number; but in none of the numerous similar cases adjuged since that time, has it been so considered or understood, either by the bench or the bar ; for, according to Lord Chief Justice Eyre, in delivering the opinion of the court in the case of Dubber ex dem. Trollope v. Trollope, Ambl. 453, “ the subsequent limitation to the heirs male of such heir male, has been looked upon as the true foundation of that resolution.” Lord Hale, in 1 Vent. 215, makes use of a similar observation in regard to the main point of deliberation in Archer’s case-But even were the case at bar ruled to be analogous upon the facts and terms of devise to the case in Coke’s Reports, we claim that we are sustained in our position upon authority; because, upon a critical examination of all the cases subsequently determined, both in England and in this country, it will be seen that if the decision of Archer’s 401] case rested upon the grounds apparently laid down *by Coke, the case, if not expressly overruled, has been very much shaken ; but the two cases are as distinct and dissimilar as opposing legal principles ■can make them. It is here proper to remark, that were this construction upon the question of entailment asked to be put upon a deed instead of a will, and where the language used is “ to a man and his heir,” in the copulative conjunction, without either express or implied terms of procreation, that the question might be against us, although that was for a long period vexata questio in England. For proof that •even this distinction was for a long time doubtful, if it is not so now, it is only necessary to refer to Mr. Hargrave’s Annotations on Coke’s Institutes, vol. 1 494, (n. 11,) where he says : “ according to many authorities heir may be nomen collectivum as well in a deed as a will, ■and operate in both in the same manner as heirs in the plural number.” And he cites 2 Roll. Abr. 253; 1 Roll. Abr. 832 ; Godb. 155; Jo. 111 ; Cro. Eliz. 313; Robin. Gavelk. 95, 96 ; 1 Barr, part v. 38 ; Vin. Abr. Devise U. a. pl. 13. It is true that Coke, in the text, lays down the contrary doctrine ; but upon this point, even in relation to the construction of deeds, he is not always consistent with himself. In 1 Inst. 8 b., he says: “ That every word of Littleton is worthy •of observation. First, heirs in the plural number; for, if a man .give lands to a man and his heir, in the singular number, he hath but an estate for life; for his heir can not take a fee simple by descent, because he is but one, and therefore in that case his heirs shall take nothing.” Now, to show that this proposition is contradicted by Coke himself, it is only necessary to turn to page 20, a, of the same Institute, where he holds this language : “ And where Littleton saith (heirs) yet (heir,) in the singular number, in a special case, may create .an estate-tail, as it appeareth, by 39 Ass. 20.” It is a strange and singular circumstance that Lord Coke should have quoted this case from 39 Ass. with approbation, after laying down and commenting upon the previous rule from Littleton with such marked emphasis, especially when the very peculiar words of grant in that case are considered, as he himself quotes them in 1 Inst. 22, a. The case was 402] *“ where lands were given to a man. .and his wife, and to one heir of their bodies, lawfully begotten, and to one heir of the body of that heir only.” It is evident that this last case put by Coke is much stronger than the one in the original text of Littleton ; for there the words of grant were “ to a man and his heir male ;” because, in the latter instance, the conclusion is almost irresistible that the grantor intended that the estate should extend no farther than the third generation from himself. This construction would have been reasonably supported by the use of the word “ only ” after the word “ heir,” in the third generation ; for it is not to be supposed that this word “ only ” was used as restrictive of the number of heirs, but of the quantity of estate ; else the grantor would have also applied the word to the second generation, which he does not. But even this case was held to be descriptive of an estate of inheritance in infinitum, and stands as one of the earliest adjudged cases upon the question in issue at bar.
    But there is one other circumstance in relation to Archer’s case, already noticed, which deserves to be mentioned here. That case was decided in Common Pleas in the 39 and 40 of Eliz, Four years before that period, the case of Clerk v. Day, Cro. Eliz. 313, was agitated in the Queen’s Bench. It is not very clear that the case was ever finally-adjudged, because of the disagreement of the judges upon the principal point involved in the case, though as to that point, it has been cited upon both sides of the question in subsequent cases. Now, if the point decided in Archer’s case, was such as is claimed by Mr. Ewing, it is strange that the case of Clerk v. Day is not cited by either the court or counsel in Archer’s case; for although the court was divided in opinion upon the main point in Clerk v. Day, yet it is said by Coke, in his report of that case, that it “ was agreed by all the justices that a devise to one and the heir of her body, is an estate-tail, and shall go to all the heirs of her body : for 1 heir ’ is nomen collectivumThe fact is, that the point upon which the court disagreed, was the very question which must have been the true ground of discussion in Archer’s ease, subsequently decided; for the *devise was, “ to [403 Rose for life, and if she marry after my death, and have heir of her body, then I will that the heir, after my daughter’s death, shall have the land, and to the heirs of their body begotten.” If we read the word “ their,” as applying to the body out of which the heirs of the heir are to spring, (and it would be insensible to any other application,) then it stands precisely in the position that Archer’s case does, for it is engrafting the words which first limit the entail upon the word “ heir,” instead of the ancestor, the first devisee for life. The: question left undecided, was, whether the devise gave to Rose, the daughter, an estate-tail executed, or an estate for life only. This point remaining unadjudicated when Archer’s case was decided, accounts for the ease of Clerk w. Day not being alluded to in that case ; and raises the irresistible presumption that the decision ^did not turn upon the question involved in the case at bar.
    So much for Archer’s case, and the principle of law which it is supposed to illustrate. Let us now see how far it has been followed up by the subsequent cases, taking it fur granted, for the sake of argument, that it decides what is claimed for it.
    It is clear, however, in the first place, that unless the word “heir” is to be construed as a word of purchase, the rule in Shelly’s case applies to the one at bar. The substance of that rule is, that where an estate of freehold is given to the ancestor, and the remainder of the fee is also given in any part of the same instrument to the heir or heirs, the apparent subdivisions of the estate coalesce and become a unit in the ancestor, aud he takes an estate either in fee simple or fee-tail, according to the effect of the words of limitation used in the grant or devise. I shall not stop here to discuss the difficult and somewhat unsettled question, whether the rule shall surmount even the manifest intent of a testator, though that proposition is supported by some of the most profound English law writers. As for instance, Mr. Preston, in his elaborate treatise upon the quantity of estates, thus speaks of the inflexibility of the rule as applied even to wills : “ Even a declaration that the heirs, or heirs of the body, should' take by purchase, 404] *would not, singly and alone, exclude the rule. In many cases, arising as well on deeds as on wills, this has been the evident intention, and yet it has not prevailed. The object of the rule is, as it has been shown, to frustrate this intention, as often as the word heirs embraces all the persons successively answering that description, as the class of persons described by that term ; for when the author of several gifts, one to the ancestor, the other to his heirs, or heirs of his body, means that the ancestor should take for his life only, and that a ny other person who, in succession from generation to generation, shall be his heir, should take as his heir, and yet that these heirs, or some of them, should take in their own right, as purchasers, by that name, independently of their ancestor, he then means that which the law will not suffer him to give or the heir to take as a purchaser; for all persons-claiming under a description or words of designation of all possible heirs, must take as heirs and not as purchasers ; for taking under the name and in the character of heirs, they must take in the quality of heirs, by descent and not by purchase2 Prest. on Est. 326, 327. See, also, Lord Thurlow’s lucid remarks upon the same question, in his decision of the ease of Jones v. Morgan, 1 Bro. Ch. Ca. 220. That the case at bar affords an example of the application of the rule must be evident to every legal mind. The inquiry upon this branch of the case is not whether the testator intended the rule to apply or not; but has he used language which, in its strict legal and technical sense, calls the rule into operation? It might as well be asked, Whether the testator intended to violate the rule against the creation of perpetuities ; because this rule in Shelly’s case, as a recognized principle of law, will no more yield to individual intention than any other fundamental rule of property.
    But I am advised by Mr. Ewing that he will take the ground, in his argument, that the rule in Shelly’s case can never be made to apply to any instrument in which an express estate for life is given to the ancestor ; that in all cases where the rule applies, as to life estates in the ancestor, that estate exists by implication of law merely.
    *Let us recur, however, to the language of the rule. The [405-rule itself is laid down with various unessential modifications by various law-writers ; but all agree, that whenever an ancestor takes an estate of freehold (or for life, either express or implied, as is said by Serjeant Glynn in the'great case of Perrin v. Blake,) by any gift or conveyance, and in the same gift or conveyance, there is a limitation, either mediate or immediate, to his heirs or the heirs of his body, he takes either in fee simple or fee-tail. An estate of free-hold; and does that quality of estate depend upon the fact whether the instrument creates it in express terms or by implication? Mr. Ewing does not certainly mean to advance such a proposition as that. The legal effect of the rule is not less precise than its language. It creates, in effect, a gift in fee to the ancestor, and the limitation to the heir is merely ancillary to his interest,-attaching as words of limitation of his estate. That the rule applies to express estates of life, I need only refer the court to the cases of Bonsall v. Harvy, 4 B. and C. 610 ; Thong v. Bedford, 4 M. and S. 362 . Bailie v. Coleman, 2 Vern. 670. Indeed the rule has been applied in cases where the testator had said that the deviseeshould take for life “ and no longer.” The case of Robinson v. Robinson, 1 Burr. 38, settles this question beyond controversy. But it will be claimed by counsel,- that whether the rule is to apply or not, is-to be decided by tbe intention of tbe testator. But that is only receding from this point in the case; because, admit for one moment that the intent shall govern the rule, what elements have we, in this part of the devise, to discover that intent ? Simply, that a life estate was given; and if it is said that, because a life estate only was devised, the interest of the first devisee is to be measured by that, why then this court is asked to decide this case in contradiction to all authority, both ancient and modern.
    I intend, for the present, to treat this case as though the testator ■used only the word “ heir,” in the devise to his brother Christian, without the superadded words, “ or heirs.” With this understanding we will proceed to examine the authorities upon that question.
    *The case of Dubber v. Trollope, Ambl. 453, already incidentally noticed in this argument, was a devise to A, (testator’s second son,) for life, and to the first heir male of his body. And the court of Common Pleas held (which judgment was afterwards affirmed in King’s Bench), that A took an estate in tail male. Per Eyre, C. J. “ Heir, in the singular number, is nomen collectivum, and all one with the word heirs. However, it may stand upon a feoffment or grant; yet, it can never be imagined that the word heirs is necessary to make an estate of inheritance in the case of a devise. Coke says, expressly, (1 Inst. 9 b.) that a devise to a man in perpetuam, or in fee, or to him and sanguini suo, or semini suo, will make an estate of inheritance by the intention of the testator; and it is as reasonable to infer that the testator intended to give an estate-tail by the limitation to the father for life, and afterwards to his heir male ; for it is plain he intended to .give a descendible estate that should go from the ancestor to the heir ; an estate that may be inherited ; and, therefore, it may reasonably be intended that he designed an estate-tail, an estate inheritable by the heir male of his body.”
    It is said by Sir William Grant, Master of the Rolls, one among the most profound Chancery lawyers of his day, in England, that “ it is settled that the words ' heir,’ or ‘ heir male of his body,’ in the singular number, are words of limitation, and not of purchase, unless words of limitation are superadded.” Blackburn v. Stables, 2 Ves. and Bea. 371.
    Gould v. Goddard, 2 Jones, 111, 113, was a devise to a man for life, And afterwards to his next heir male, and for default of such issue, remainder over. It was resolved that heir male was of the same sense as heirs male. It is observable, in these two last cited cases, that the word “ heir” is preceded by the words “ first” and “ nextbut that this can make no difference, see Miller v. Seagrave, in B. R. Mich. T., 10 Geo. 1, and cited in Robins. on Gavelk. 96 ; 2 Eq. Cas. Abr. 318, c. 33.
    It is said by the court, in Whiting v. Wilkins, 1 Bulst. R. 219, that if a man devise land to A, his younger son, forever, *and after [407 his death, to the heir male of his body, forever, with divers remainders over, A will take an estate-tail, and not an estate in fee ; and the reason given is, .that it is made so by the words heir male, in the singular number. It is also said, arguendo, in this case, “where land was given to a man and his wife, et uni hœredi de eorpore suo legitime procreato, et uni hœredi ipsius hœredibus tantum, (Brook, tail, pl. 23, 39, Book of Ass. pl. 20,) an estate-tail by the opinion of all the Justices; for this word heir is nomen collectivum, and shall run to all the heirs; Hil. Eliz. B. R. in Cheek and Dale’s case, where there was the like-limitation by one unto A, his daughter, and to her heir male, and there agreed, that if the first limitation had been made to her for life, and after to the heir male of her body, this is a good estate-tail.”
    In the case of Pawsey v. Lowdall, Styles, 249, the case was, “ If A, seized of a copyhold in fee, surrender it to the use of his will, and' afterwards, by his will, deviseth to B, his cousin, for his life and after his death, to the heir of his body begotten, forever,” it was held to be a tenancy in tail in A ; and the case is cited as law in 1 Roll. 637, and 2 Roll. 794. The court will observe that, in this case, as well as in the ease of Whiting v. Wilkins, above cited, the testators have used-the word “ forever,” in limiting the estate to the heir of the first devise for life; but that this circumstance can have no weight in the-construction of the devise, as to the question whether the first devisee takes an estate-tail, or for life only, is manifest from the language used by C. J. Eyre, in remarking upon this very case of Pawsey v. Lowdall. He says : “ The word ‘ forever,’ which in a devise makes a fee, is only put to show his (the devisor’s) intention, as usual when land is given to one and his heirs forever ; and therefore, in this case, it is a fee-tail executed in B, and his heirs are in by descent and not by purchase.’’ See the opinion of Tilgham, C J., in the case of Hall v. Vandegrift, 3 Bin. 381, as to the effect of this word when applied as above. Also, the ease of Keating v. Reynolds, 1 Bay, 88. A conveyance by deed, to a man and his seed, without any limitation to the heirs, passes an *estate for life only — 1 Inst. 20 b. — and it is because there are [408-no words to extend the limitation to the heirs of that name. But in. wills, a devise in these terms will pass an estate-tail. 2 Prest. on Est. 537 ; Eq. Cas. Abr. 179.
    
      Burley’s case, cited by Lard Hale in the case of King v. Melling, 1 Vent. 230, was a devise to A for life, remainder to next heir male, and for default of such heir male, then to others in remainder; and the opinion of the Court of King’s Bench was, that A had an estate-tail, and they adjudged accordingly.
    But the case which must decide the question made at bar, is that of Richards v. Bergavenny, 2 Vern, 324. It is a case exactly in point, both upon the facts and the questions of law to which it gave rise. The only distinction which exists between the two cases is, that in the devise in the case in Vernon,the word “heir” was used alone, instead of “ heir or heirs,” which makes it the stronger case of the two, because I shall show hereafter, that the latter words can mean nothing else, in a strict legal construction, than any or all heirs. The case was this : An estate in lands, together with personalty, such as furniture, etc., being limited to the Lady Bergavenny, and such heir of her body as should be living at her death, and in default of such heir remainder over. The question was, whether-the goods went over to the remainder man, or whether the absolute property therein vested in the Lady Bergavenny. Per Cur. “ The limitation of the estate to the Lady Bergavenny, and such heir of her body as should be living at her death, with a remainder over for want of such, is an estate-tail; a devise to a man for life, remainder to the heir of his body, though in the singular number, or to the issue of his body, is an estate-tail. But in the principal case, (meaning the clause in the will as to the realty,) the limitation making an estate-tail in the land, the goods disposed of in the same clause, must go in the same manner, and consequently, the absolute property is in the first devisee, and no remainder of goods after an estate-tail is good; for the words ‘ heir of her body,’ must 409] not, as to the land, be construed to be words of *limitation, and make an estate-tail, and as to the goods to be only words of designation of the person intended to take the goods.”
    This case goes on all fours with the case at bar. It is not only a blending,by testamentary disposition of real estate with personalty in the same will, but in the same clause of the will, and using almost identical language in the selection of words to pass the property. How counsel are to get round this, or to explain its effect, I leave to their ingenuity to decide. It may be said by the opposing counsel, that the reason why, in England, the word “ heir ” is construed to be a word of limitation, is owing to the existence of the law of primogeniture, which prefers the eldest born son to all others. There may seem to be some plausibility in this position, where the limitation is to the “ heir male ” of the first devisee, for in that case it describes a line of particular succession peculiar to the laws of England; but in no other event can the position be correct. Where only the word “ heir ” is used, the reason can not apply, because the issue may be sons or daughters. The distinction, however, has never been raised, even where the language used is “ heir male.”'
    The only other case decided in England upon this point, which I shall notice, is the case of Mellish v. Mellish, 2 Barn. and Cress. 520, (9 Eng. Com. Law, 164.) That case arose upon a devise in these words : “ Hamels to go to my daughter Catharine Mellish, as follows ; In case she marries and has a son, to go to that son ; in case she has more than one daughter at her husband’s or her death, and no son, to go to the eldest daughter ; but in ease she has but one daughter or no child at that time,” devise over to a brother of testator. The court of King’s Bench held, that Catharine took an estate-tail male, with reversion in fee, subject to other estates created by the will. It would be difficult to find language which would seem to indicate in itself a more decided intention on the part of the testator to limit the estate to a particular person, than the devise in Mellish v. Mellish. In the first place, it was to go a son. should she die leaving one; and in default of that, *there being a number of daughters, it should go [410 to the eldest of them. Then comes in the extraordinary provision, that in case she should have but one daughter, the devise over was to one who, in England, never could have taken by descent from Catharine, to wit, her uncle. I should douht somewhat the propriety of this decision, adjudged even by such eminent lawyers as Bayley and Holrojd, for it is certainly carrying the rule to its greatest extremity ; but it is the strongest possible case that can be put to show that courts are averse to construe the interest of a first devisee as an estate for life only, where there is the slightest indication that the testator meant, in after limitations, to describe a line of succession, by inheritance, through which he designed the estate to pass.
    Let us here test the reasonableness of plaintiff’s construction of the will at bar, by supposing a given state of facts to have existed. Suppose Christian King should have had a child born to him in lawful wedlock in the lifetime of his brother William, and that such child had arrived at the age of puberty, married, had children, and died, still living the two brothers, Christian and William; and then that Christian and William should have died, living the grand children of Christian, would this court have held the limitation over to the collaterals of Christian, the children of Ish and Oassel, as being good, upon a question of intention on the part of the testator, instead of vesting the estate in the grandchildren of Christian, in a lineal descent from him as the first devisee, he being the principal object of the bounty of the devisors ? I take it, that under such a condition of things, they would have hesitated long before they would have felt themselves called upon to do so, upon any known rule of construction. Had such a state of things as this existed at the death of William King, and the legal effect of the devise is such as is claimed by counsel, the court would have been compelled to hold the limitation over as having vested ; because it is clear the grandchildren could not take as purchasers, but must have been in by descent from their immediate ancestor, the child of Christian — and they would have been cut out from 411] taking anything under this will, *because the devise, as to their immediate ancestor, had lapsed, by his decease in the lifetime of the testator, It will be no answer to this objection to say that the term children includes grandchildren. There are some cases where the word of devise used was “ children,” in which courts have held grandchildren to be included ; but an examination of that class of cases will show that such was the unequivocal intent of the testator, as shown by other expressions in the will. It has been held, also, that the word children, even when expressly used by the devisor, shall not be taken to mean grandchildren when there can bo any other construction put upon it. Reeves v. Brymer, 4 Yes. 698. And in this connection the conviction forces itself upon the mind, that the testator in the case at bar, by the use of the words “ heir or heirs,” meant any or all lineal heirs which his brother Christian might leave at his death. This I claim to be the technical and legal effect of this devise; and if this is true, the construction must accord with that technical sense, unless the testator has used other words which control and modify that meaning. There is not a single expression used in this will to show that the testator intended that the heirs of Christian King should take as purchasers; and this intention is not to be presumed, because the law does not favor a construction creating new inheritable blood by way of purchase. On the contrary, it is clear that he intended that the successive heirs, as heirs, of his brother Christian should take ; and not that his expression should be so modified, if not distorted, as to include one or more particular individuals, in the limitation to the “heir or heirs ” of Christian, born in lawful wedlock. If this is the technical sense of the words used, then the construction of law must follow, ex consequently Mr. Justice Buller, in delivering an opinion characterized by great perspicuity and precision, in the case of Hodgson v. Ambrose, Doug. 337, says : “ If a testator makes use of legal phrases, or technical words only, the court is bound to understand them in their legal sense, and they have no right or power to say that the testator did not understand the meaning of the words he used, or put upon *them [412 a construction different from what has been long received, or what is affixed to them by law.”
    I have shown, as I think conclusively, that in a will, at least, the word “ heir ” is a word of limitation and not of purchase. This, according to the authorities, is the technical sense put upon the term' by law, where the testator uses it without any explanation of his own In the absence of this explanation, it is a legal presumption in our favor, and the onus rests upon the plaintiffs to show that, in this case, it was used in a different sense from what the law puts upon it. Have-they done so ?
    Thus far I have treated this devise as conferring an express estate-tail upon the first devisee. But if the court should come to a different conclusion upon this branch of the case, it is proper that we should consider the subject in another aspect, and show—
    Second : That it is an estate-tail by implication.
    If, then, I am so unfortunate as to have failed to convince the court that Christian King took an estate-tail express, in the real estate, under his brother’s will, upon the question whether the words “ heir or heirs,” are words of limitation or words of purchase — and if the court shall still further think, that the body, out of which the issue is to spring, is not made sufficiently manifest by the language of this will — then the defendants plant themselves behind another rule of law, arising in this ease, which I humbly conceive to be perfectly impregnable.
    It is laid down in the books, as a fixed and inflexible rule, that although a simple devise to a person and his heirs, gives him the entire fee, yet, if it appears from the whole context of the will, that the word heirs, as a word of limitation, is eoarcted and qualified by other and subsequent words or limitation, which designate the intention of the testator to restrain and limit them to the heirs of the body of the devisee, the construction of law must be that the devise creates an estate-tail. To this point may be cited the cases of Bryce v. Smith, Willes, 1; Comb. 538; Fitzgerald v. Leslie, 3 Bro. Parl. *Cas. [413 154 ; Preston v. Funnell, Willes, 164; Denn v. Shenton, Cowp. 410, 2 P. Wms. 369 ; Fearne on Ex. Dev. 179 ; Cro. Jac. 415 ; 2 Bos. and Pul. 324 ; And. 343 ; Cowp. 234. This principle of law is based upon a double foundation of reasoning, only one of which it is necessary to notice as applicable to the case at bar, and that is as illustrated both in the elementary treatises and reported decisions, where lands are devised to a person and his heirs, with remainder to a collateral heir or heirs of the first devisee, the words heir or heirs in the devise will be interpreted to designate heir or heirs of the body, and the first devisee will take an estate tail; and the reason of this construction is, that the limitation over to the collateral heir or heirs, plainly and unequivocally denotes that the devisor intended that the lands should pass to the lineal descendants of the first devisee. And the rule is the more manifest and conclusive, for the reason that the first devisee could not be without heirs so long as he had collateral kindred living, possessed of inheritable blood. This pi.int was expressly decided in the following cases : Hatch v. Black, 6 Taunt. 485 ; Webb v. Hearing, Cro. Jac. 415 ; Parker v. Thacker, 3 Lev. 70 ; Dansey v. Griffiths, 4 M. and S. 61 ; Tyte v. Willis, Cas. Temp. Talb. 1. It is to be borne in mind, that the devise in the case at bar is to Christian King for life, and to his heir or heirs, living at his death, and in default of such heir or heirs, living at his death, then to the children of his sisters. Now, this is a case which comes exactly within the reason and letter of the rule of law just stated. It is manifestly, when considered in reference to the rule, or in any other sense, a devise over to the collateral kindred of Christian, in case there should be, at the time of his death, a failure of lineal heirs. It is true that the col-laterals of Christian, under and by virtue of this devise, would have taken as purchasers, their immediate ancestors having been entirely passed over by the terms of devise ; but that circumstance can not vary or interdict the application of the rule in the slightest degree ; because, although they would not take by descent, yet still it is, both in point of fact and legal effect, a devise over to the collateral heirs 414] *of Christian, or what is the same thing, to those who would have been such, in case of failure of a more immediate consanguinity of collateral blood. The principle of construction has been applied in a number of cases, by judges of high authority. Thus in the case of Morgan v. Griffith, Cowp. 234, decided by Lord Mansfield, which was sent out of chancery by the Lords Commissioners to King’s Bench, upon a devise of lands to “ Thomas Griffiths, my grandson, for and during Ms natural life, and after his decease, to his right and lawful heirs and assigns forever ; and for want of such lawful heirs, I do give the said lands, as above expressed, to Thomas Evan, (another grandson of testator,) the lands to his heirs and assigns forever.’’ The question submitted for the opinion of the court was, what estate the grandson, Thomas Griffiths, took in the premises by the will of his grandfather. Mr. Wallace, counsel, for plaintiff, acknowledged the rule of law to be clearly settled, and yielded the case in favor of the defendant. Lord Mansfield : — “ There can be no question about it;” and accordingly, the court certified as follows : “ Having heard counsel on both sides, and considered the above ease, we are of opinion that the grandson Thomas Griffiths, took an estate-tail in the tenement called Bwlch Gwynn, by the will of the said Thomas Griffiths, the grandfather.” Mr. Fearne, in his profound and elaborate treatise upon Executory Estates, 467, puts the following case as an illustration of the rule : Where A devised lands to B and his heirs, and for want of heirs of him, to D, it was adjudged an estate-tail in B, “because,” says the learned writer, “ D was a near relative and heir to B, and therefore B could not die without heirs so long as D or any of his lineal heirs existed.” The case of Tyte v. Willis, Cases Temp. Talb. 1, was a devise to A of lands to his wife for life, then to his son H for life, remainder to his son G and his heirs forever, and if G- should die without heirs, then to the testator’s two daughters. This was determined to be an estate-tail in G; for it was impossible, say the court, he should die without heirs whilst his sisters were living.
    *The rule is the same, where the remainder, after an estate [415 for life or in fee to the first devisee, is limited, upon a failure of issue in the first devisee, to the heirs lineal or collateral of the devisor himself, or to such as may by possibility be heirs lineal or collateral; if, as in the ease at bar as to the collaterals, such heirs must or may be also heirs to the first devisee. As where A devised to his second son and his heirs forever ; and for want of such heirs, then to the testator’s right heirs. “ Here,” says Mr. Fearne, Ex. Dev. 467, “ though the devise to the testator’s heirs was a mere nullity, as such heirs must be in by descent, yet it was held sufficient to manifest the intent and aid the construction of an estate-tail.” Brice v. Smith, Cas. Temp. Willes, 1; Scholes v. Scholes, 2 Chit. 643 ; 5 T. R. 335 ; 6 T. R. 307. The case of Nottingham v. Jennings, Comb. 81, reported also in 1 P. Wms. 23, is a leading case upon this question. There the testator had three sons, John, Francis and William, and devised his lands to Francis and his heirs ; and, in default of the heirs of Francis, to the heirs of himself. Lord Holt held that, although the devise to the heirs of the devisor passed no estate to the eldest son, as the primogenitive taker, who took the reversion by descent, and not the remainder by purchase, yet it fully showed the intent of the devisor, that the words of the devise, “ to Francis and his heirs, and for want of such heirs,” meant heirs of his body. And as the devisor said that his own heirs should take after the death of Francis, without heirs, although the heirs of the testator, as such, could not, by law, take any thing under such devise, (for they must take by descent, which was paramount to purchase), yet it sufficiently appeared that the testator intended, by such limitation over to his own heirs, that when Francis was dead without issue, the heirs of himself should take ; and the word heirs, in such case as that, could have no other construction than issue; because Francis could not die without an heir so long as the testator had an heir. The ease at bar comes within this branch of the rule also. Neither the decision of Lord Holt, or of any other case, imports that the limitation over, after a failure of issue, in the first devisee, must 416] pass *to the first heirs in succession of the devisor or of the first, devisee ; and it is clear that the rule exists with equal force and certainty, where the limitation over passes by such heirs of the first line, and is limited upon some person or persons standing in a remoter degree of consanguinity, either lineal or collateral, to the devisor or first devisee. The limitation over, in this will, to the children of Ish and Cassell, upon a failure of issue upon the part of Christian, although it passed by the next heirs in succession, (Ish and Cassell,) yet it was limited upon those who would have been the heirs of the devisor or first devisee, in case of the prior death of their mothers, living no lineal descendants of William or Christian at their death. I confess I should have entertained some d >ubt upon the question of applying either of these rules to a devise over to collateral heirs, in a ease like the present, where the devise is to collaterals who do not stand in the first line of succession, either to the testator, or first devisee, were it not for the following passage in 6 Cruise, 297: “ Where a devisee is to one and his heirs, remainder over to another, who is, or may be, the devisee’s heir at law, such limitation shall be good; and the first limitation construed an entail and not a fee.” Mr. Fearne, Ex. Estates, 266, favors this position in language still stronger; “ For,” says he, “ if the person to whom the limitation over is made, be a relation of, and capable of being collateral heir to, the first devisee, in that case the first devisee takes an estate-tail,” etc. See, also, Mr. Butler’s note (i) to this passage in the same work. Mr. Justice Story, in the learned and elaborate opinion which he pronounces in the case of Lillebridge v. Adie, 1 Mason’s C. C. 239, likewise sustains this principle of construction in the fullest extent. It is clear, then, that if this devise does not give to Christian King an express estate-tail, it does by necessary legal implication. Having thus far viewed this ease upon these two questions of express and implied estates, it only remains for me to notice one or two general propositions, which it is supposed by counsel, belong to a full consideration of the ease.
    *If I understand Mr. Ewing correctly, he claims that this can [417 not be an estate-tail, because the limitation over is upon the contingency that there shall not be any issue living at the death; in other words, that an estate-táil can never exist, where there is a limitation over, unless that limitation be upon an indefinite failure of time. This is the proposition. Let us see how it will stand upon the authority and analogy of law. Why is it necessary to the qualities of an estate-tail, that where there is a limitation over, it must be upon an indefinite failure of issue in the tenant in tail ? If the rule exists, it does not grow out of the nature of the estate, but is a principle of construction put upon the instrument which creates it. I admit, in a case where the terms of devise or grant are to A, and the issue of his body, and upon default thereof, limitation over, that the rule of construction of that particular instrument is, that the limitation over only takes effect upon an indefinite failure of the issue of A. But this is a canon of construction, adopted for the interpretation of the will or grant, not an ingredient of the estate If it were otherwise, what would be the effect of a devise, like the one at bar, if there were no limitation over? It is to be borne in mind, that, where there is no limitation over, or if there be one, and it never becomes vested, there is a possibility of reversion in the grantor, or his right heirs; for an estate-tail, though it may last forever, does not necessarily do so ; and where there is a failure of issue in such ease, the grantor, or his heirs, must stand precisely in the shoes of a remainder man. Suppose then, by way of illustration, that the devise in this ease had been to Christian King, for life, and the heirs of his' body, living at his death, and had stopped there ; what sort of an estate would Mr. Ewing hold that to be ? It can not be an estate-tail, he says, because the failure of issue is restricted to the time of the death. If it is not an estate-tail, what is it ? and, in what predicament does the grantor stand, in regard to the reversion ? The proposition of counsel, in such a case, would involve, I will not say the absurdity, but this difficulty, that, if the remainderman could not, in England, be barred by fine or common 418] recovery, the *grantor himself could not be. It is only necessary to call the attention of the court to the case of Richards v. Bergavenny, already noticed, to set this point at rest. The devisee in that case was to the Lady Bergavenny, and such heir of her body as should be living at her death, and, in default of such, remainder over; the court held it to create an estate-tail. The case of Mellish v. Mellish, is also an authority in point. But will counsel also shift this point, upon a question of intention on the part of the devisor ? It will avail them nothing ; for it does not follow, as a consequence, that, because a testator limits an estate, to take effect at a particular period, he therefore intends it to vest in particular persons.
    The case of Findley v. Riddle, 3 Bin. 139, seems to b'e the sheet anchor of reliance of some of the counsel for plaintiffs, to force a construction upon the will at bar, that Christian King took an estate for life only. Mr. Slade is evidently mistaken in his views of this case. There would seem to be some plausibility in its application, upon a partial and superficial view ; but, after a full examination of the terms of devise, as well as the reasoning of the court, it is apprehended a clear distinction between the two cases will be manifest. That ease may be good law in Pennsylvania, under their peculiar statute of distribution, which stands in relation to such a devise as that just as the course of descent in England would have done. And the reason of this is, that the statute of distribution, or intestacy, in Pennsylvania does not exempt lands entailed, from descending, according to the course of the common law : that is, an estate-tail is not within the meaning of the intestate acts. See note to Purdon’s Abr. 242 ; 1 Bin., 96. The substance of the devise was, to A, for life, and, after his death, if he should die leaving lawful issue, to his heirs, as tenants in common, and their respective heirs and assigns forever, but, in ease he should die without leaving lawful issue, then to B, the brother of A, It is clear that, even in England, A would have been held to be only a tenant for life ; because, the testator manifestly intended to break in upon the course of legal descent. Therefore it is, that in England, 411)] *whenever a testator, even by express terms, creates an estate-tail, with the superadded direction, that the heirs of the tenant of the particular estate should enjoy their interest as tenants in common, the courts have held that the first devisee takes only an estate for life, That this case, of Findley v. Riddle, was decided upon this principle, it is only necessary to refer, briefly, to the positions assumed by counsel, and the arguments of the court. The counsel for the plaintiff said ; “ If ‘ heirs’ was used in a legal sense, and therefore a word of limitation, it was impossible that the children of John could take by descent, as tenants in common. The eldest son of John would take the whole es-tate per formam' doni, as well in Pennsylvania as in England.” This position was taken by counsel, who contended that A was but tenant for life. Now let- us see how the court treated the case. Yeates, Judge. “ The father gave the lands to John for life, in express terms. He could not mean to entail them; because the unavoidable consequence thereof would be, that, unless the entail was docked, the eldest son of John, the devisee, would enjoy the whole, in exclusion of the other children, in tail; and the lands would, in like manner, devolve on his eldest son, and so on, from generation to generation, while issue continued ; whereas, here the testator had said, or meant, that all the children of his son John should inherit, as tenants in common, and their heirs and assigns, respectively, forever.” Breekenridge, Judge. “ By the tenancy in common, the descent must be intended to be broken. Our statute of distribution, in the case of intestacy, gives a tenancy in common in a fee simple estate. But an estate-tail,” (meaning under that statute,) “ is not the subject of an intestacy. The law regulates the descent to the heir in tail, which shows, at least, that the testator did not use the word heir as meaning heir in tail in his own intendment.” It is unnecessary to stop to inquire how this ease should have been decided here under our statute of distribution, or whether such a devise would .have broken the descent in Ohio ; because there is nothing in the will at bar to raise that question, as between these parties. It is true, that *the limitation over to th,e children or’ [420 Isb and Cassell, is that they shall take “ in equal dividends or shares but, it will not be pretended, that this is to relate back to the prior limitation to Christian and his heirs, upon a question of construction as to the limitation to them. Being different kinds of limitation, upon different individuals, they must, of course, receive different and independent interpretations, We are not called upon, in this ease, to say, that if there had been a devise, either to Ish or Cassell, in tail, with the qualification such as exists in the will in Binney, as to how their children were to take, and the question to be decided were .upon that devise, that the judgment of this court ought not to follow that Findley v. Riddle. That question, however, might present a very different aspect under our statute of descents, which excludes the rule of primogeniture, and which does not present the question which arises under the acts of intestacy in Pennsylvania. It is enough for us to say, by way of explanation of the ease of Findley v. Riddle, that the rule of law is now too firmly established to be shaken, where there is a devise to persons in remainder, after a tenancy for life, to take distributive^, each in his own right, by virtue of such testamentary disposition, and according to the proportions designated by the testator, that they must take as purchasers, because of the breaking in upon the common law, or statutory line of descent.
    Counsel have cited the case of Lethuillier v. Tracy, 3 Atk. 774. The ease arose upon the will of Sir William Dodwell, himself an eminent conveyancer, and was, in substance, a devise to A for life, and from and after her decease, to the use of the first son of her body, and to the heirs male of the body of such first son, and in default of such issue living at her death, to trustees to preserve, etc., till B shall be twenty one years old, with a direction that said trustees should convert all his personal estate into money, to be laid out in the purchase of lands. And if B should attain the age of twenty-one, then, to the use of him for life, remainder to his sons in tail-male; and, in default of such issue, or, if B should die under twenty one, and with-421] out issue, then to C, etc , persons in esse. Lord Hardwicke *held, that the contingency of the daughter dying without issue, living at her •death, affected only the estate limited to trustees, until B should attain twenty-one ; that this limitation to trustees was not an absolute fee, as was contended, but a determinable fee ; that the estate limited to B, was only contingent until he attained twenty-one ; that this contingency extended to none of the subsequent estates : and therefore, the remainders over to persons in being were vested, and not contingent. These were all the points that were raised in the case, and is all thatthecase decides. Three things, however, are to be observed : 1. The devise is in the nature of a trust executory; 2. It is the limitation of an estate in strict pettement; and 3. It comes exactly within the category of Archer’s case, being a devise to A, and the heir of her body, and to the heirs of that heir. It is in the nature of a trust executory, because the testator directs that the trustees shall convert his personal property into money, to be laid out in the purchase of lands, to go according to the limitations in the will. A trust is said to be executory “ where something remains to be done to complete the intention of the parties, and their act is not final.” 2 Story’s Eq. 246. Now, what is the rule of construction as to trusts executory ? These trusts form that branch of the law upon which the bold and arbitrary doctrine of cy pres is most founded. To show that the greatest latitude is observed in the construction of executory trusts, it is only necessary to quote the language of Lord Eldon : “ There is no difference in the execution of an executory trust'created by will, and of a covenant in marriage articles ; such a distinction would shake to their foundation the rules of equity.” Countess of Lincoln v. Duke of Newcastle, 12 Ves. 227, 230. That Lord Hardwicke treated the case of Lethuillier v. Tracy as a limitation in strict settlement, is evident from his own language. He says : “ Ihere can be no question but Sir William Dodwell intended to make as strict a settlement as he possibly could, and I think the presumption of that intention is strengthened by the blank in the will,” etc. But the controlling circumstance which •distinguishes this ease from the one at bar, *is the fact that the [422 limitation of the fee is tacked upon the heirs of the heir, and not upon the ancestor, clearly showing that the ‘‘ heir ” was intended to be the root of a new inheritance.
    I have thus argued this ease at much greater length than I at first intended. But it involves legal principles of so much importance, principles somewhat new in this state, that I could not, in justice to the ease, and the interests of these defendants, do less, If the court are not satisfied that the first devisee took a fee by virtue of the jus ■disponendi, and I have shown, in that event, that it must be construed to be an estate tail, then there is an end of this case, so far as the personalty is concerned; for it is admitted by counsel, that, if this construction is the true one, Christian King had the absolute property in the personal estate.
    T. Ewing, for William and Flora King, contended—
    First: The devise to Christian King, taken unconnected with the devises over, creates in him an estate for life, by express words; and, touching this devise—
    1. That it contains no power of disposition ;
    2. That no such power is conferred on Christian King by implication ;
    3. Or, if there be, that such implied power does not operate to create a fee out of the express estate for life.
    Second : That the devise over to William and Flora King, vests in them, according to the rules of the common law, an estate in fee, and not an estate-tail.
    
      If I fail in establishing this proposition, it will be by force of certain extreme cases, when the courts have construed a devise against its obvious import, or have rejected it entirely, in order thereby to effect what they consider a favorite and a favored intent of the testator, the creation of an estate-tail; and hence the difference between the construction of the same clause in a deed and in a will, or in a devise of real estate, and a bequest of chattels. And, I will contend, that since the enactment of our statute limiting entails, the Court will 423] not torture the words *of a dpvise to elicit from them an intent to create an estate which the law forbids, and thereby defeat the plain and legal objects of the testator. And I will claim for this devise the same construction which would be given in England, to the same clause, in a deed, or in a bequest of chattels.
    Third : I will contend that the fee in William and Flora King can not coalesce with the express estate for life, in Christian, so as to enlarge it to an estate-tail, or a fee.
    1. That it can not enlarge it to an estate-tail, because the estates, if they coalesce, must become one, and as the children, William and Flora, took a fee by the devise, the life estate of Christian could not be enlarged to an estate-tail, by uniting with their fee. The estate, of Christian ending with his life, and an estate in fee thereupon beginning, his estate, if so enlarged, would be an estate-tail for life ; a legal absurdity.
    2. That the life estate of Christian King could not be enlarged to a fee. because the estate over is not to his heirs general, as it must be, to create a fee in tenant for life, by its reflective operation. It is not the heirs, but the issue of Christian King, living at his death, who take the fee ; so the descent is broken, and Christian could not take the fee, without destroying at once the contingent remainder over to the heirs of Ish and Cassell.
    And, lastly, that, as a consequence, Christian King was tenant for life only, with remainder to his issue, William and Flora King in fee, who are entitled in remainder to—
    1. All the real estate of the testator;
    2. All his personalty which remained at the death of Christian King.
    To the examination of these points, I ask the patient attention of the court.
    First: The devise to Christian King, taken unconnected with the devises over, creates in him an estate for life, by express words. This proposition depends upon the following clause of the will:
    
      “ I will and bequeath all the property I may be possessed of, before my decease, to my brother Christian, without any reservation, to be used by him while he lives.”
    *It is difficult to conceive how a question can arise upon this [424 clause. The words are express, and they are apt. He devises all his property, without reservation, to his brother Christian, not to be hold ir fee. but to be used by him while he lives. If any words could more directly and str mgly express the purpose of the testator, to create an estate for life, or more effectually create it, I do not know them.
    But Mr. Stanberry contends that, from the confidential relations between the testator and his brother Christian, it must be inferred that the testator intended to give Christian a fee in his property, and not put him off with a mere life estate ; an i this supposed kind purpose is to be brought to bear in the construction of this will. Now, there are two objections to this argument. The first.is, that there is no circumstance from which to infer any such intent as is claimed by counsel. All the good will of the testator t,o his brother is abundantly shown, and satisfied, in the devise to him for life, and the provision made by the will for his children, after his death released from all the accidents that might attend him in business during his life. Such a will might have been dictated by the warmest affection for the brother, and the most strict regard to his future interests and wishes ; it is such a provision as parents often make for their children, and it will turn out well, unless the counsel's opinion of the direction which the testator’s bounty should have taken, prevail over that which it did take, in which event the property will go to strangers.
    But if an intent to give Christian the fee in this property could be distinctly shown — as if the testator had so declared, and had directed the draftsman to frame the will so as to produce that effect, this strong fact could not be used in the case — such evidence must be rejected. For these two reasons the argument of counsel, trom supposed intent de hors the will, totally fails.
    It is argued by the same learned counsel,.on the 4th page of his printed brief, that the testator intended to vest a fee in his brother, from the fact that he passes the estate from himself to his brother, on a like contingency and by like language, as he ^passes it from [425 his brother to the devisees in remainder — and it is urged that the testator certainly intended to have the fee himself, while he lived ; he, therefore, by the use of like terms, shows his purpose that his brother should have the fee.
    
      This argument involves this paralogism. It supposes the testator to have held his own property by a devise from himself. If that had been the ease — if the testator and his brother had both been devisees in this will, and the devisee to each had been in substantially the same language — the evidence would have been very strong that an estate such as was clearly granted to the one was intended to be also given to the other. But the testator held his title independently of the will, hence all the effect of similarity of language goes to the contingency on which the estate is to pass to the several devisees, and not at all to the quality of the estate which the testator had or which the devisees .are successively or contingently to tahe.
    
    I find nothing in the argument to raise a doubt as to the meaning intended to be conveyed by the very clear language of this clause of ■the will. It devises to Christian King an estate for life, in express words. This point established will aid us much in the further consideration of the case.
    And further as to this devise, I contend—
    First: That it contains no power of disposition ; on the contrary, the clause limiting the estate for life is unusually strong in its terms against such power. Tne property is uto be used" by Christian during his life — not-to be his, but “ to be used by him," a very marked implication that he shall not dispose of it.
    Second : And no such power is conferred by implication from the subsequent devises.
    The first of these is the devise over to the issue of O. King, it is in these words : “ And if it so please God that at the time of brother Christian’s decease he should be possessed of a legal heir or heirs, born in wedlock, I then will and bequeath all and every kind of property which might be considered mine in my lifetime, and of which the said Christian may be seized, at the time of his decease, to such heir or heirs ” It is from the words italicized that counsel claim to derive 426] the power *of disposition. We contend that this clause, even if taken by itself alone, does not necessarily imply such power, and that, taken in connection with the other clauses in the will, it clearly has no such implication.
    Taken by itself, tbe adverbial phrase, “ at the time of his decease,” may be as well intended to qualify that part of the sentence which follows, as that which precedes it.' The sense and connection of the will in that point of view would be this : — If the testator die without issue, he devises all the property he was possessed of at the time of his decease, to his brother Christian for life. Of this, as a matter of course, Christian becomes seized. He next devises “ all and every kind of property” which was his in his lifetime, and of which Christian should become seized, to the issue of said Christian, at the time of said Christian’s decease; not confining the fact of the seizing to the time of Christian’s decease, but the taking effect of the devise to that time. This view of the case accords with the express life estate granted above, with which the other would conflict; it also accords with the devise over to the children of Ish and Cassell, and here the accord of two like devises in the same will, becomes in a high degree explanatory, the one of the other. In that clause, the testator devises over to the children of Ish and Cassell, not such property as his brother Christian may be “ seized of at the time of his decease,” but “ what may be considered my share after my brother’s decease, and not before ” Indeed the words in this last devise do much to explain that which precedes it. The words “ what may be considered my share” bear precisely the same relation to the prior and subsequent clauses of this sentence which the.words “and of which the said Christian may be seized” do to the like clauses in the former sentence. The construction of the two sentences is the same, and both contain useless repetition, intended to guard against all danger of taking the property from C. King, in his lifetime ; and it appears to me very clearly that both these clauses are merely descriptive of the property which is limited over, and have no other connection with the subsequent clause of the sentences ; *the will would be singularly inconsis- [42T tent if it were otherwise It is entirely clear that if C. King had died without issue living at the time of his death, the estate must have passed to the children of Ish and Cassell unincumbered by any alienation which he might have made of it in his lifetime. As against the-last devisees, (the children of Ish and Cassell,) Christian King had no power of alienation — therefore the power of alienation in his lifetime, if granted at all, was on condition that he should have issue living at the time of his death. Now this is a contingency which could not be settled until his death, for until that took place it could not be known whether he would have issue then living or not. On this construction, then, an implied power is raised in favor of Christian to alien in his life time, upon the happening of a contingency which could not happen until his death; which is absurd.
    Estates or powers, when not expressly granted by a will, are implied from expressions therein which show clearly that it was the intent,ion of the testator to create such estate or confer such power, or more generally where it is clearly to be inferred from some expression in the will that the testator believes it has been already created or conferred.
    As where a testator devises an estate in fee, after the death of his widow. The widow takes an estate for life by implication, as it is clear the testator intended she should have it.
    But the implication by no means necessarily arises in the case at bar, even if I am wrong in my construction of the sentence out of which it is claimed to have arisen. The testator devises real and personal estate under the general term of all his property, to his brother Christian, to be used by him during his life, and over to his issue, all of said property of which he (Christian) may be seized at the time of his death. Now the personal property, in part, at least, is necessarily consumed in the use, and part is perishable. All that is devised to Christian can not, therefore, be in his possession at the time of his death. The testator devises over so much as he shall be then seized of. This does not necessarily imply that he has given with the express 428] use, the compl te dominion and disposal *of the property. The words of the will can, as I have shown, be satisfied, and the particular expression have a sensible import without raising such implication.
    But the right of Christian over the property is given to him by express words of no ambiguous import. He has it “ to be used by him while he lives.” Against this express grant there can be no implication — nor can an implication weaken, or modify, or coexist with it. Higham v. Baker, Cro. Eliz. 15, is a leading case on this point. Thomas Higham, the father, was seized of a messuage called Mascals, to which no land appertained, and also of a messuage called Jaques, to which pertained one hundred acres of land. He rented the messuage of Jaques, with sixty acres of land pertaining, to one Wakefield, and occupied the other forty acres with Mascals, and by his will devised all his ferme called Jaques, and the land to the same belonging, then in the tenor of Wakefield, to his wife for life, and further by these words — “ Item : I will that it and all the rest of my lands thereto belonging, wheresoever they lie, shall remain to my youngest son Robert and to the heirs of his body after the death of my wife.” And deviseth his ferme called Mascals, and the lands to the same belonging, to his wife and said Robert for payment of debts and legacies — and that after the death of the wife, all the ferme called Mascals, with the lands to the same belonging, shall remain to Robert in fee. The debts and legacies were all paid, leaving Mascals and the forty acres, and the Justices held clearly by the first part of the will, that the wife had nothing in the forty acres, for the devise to her was of the ferme of Jaques and the land to it belonging, then in the tenure of Wakefield, although he saith afterwards that it and the rest of the land thereto belonging wheresoever they lie, shall be to Robert after the death of my wife. Admit that the said forty acres shall be said to pertain to Jaques, yet the wife shall take nothing in them by implication, and Robert shall have nothing in them during the life of the wife, but the eldest son shall have them by descent during her life, and what she shall have was expressly devised to her before, and so shall not have any more by implication. *And Meade said it was adjudged in [429 (Mover and Clatches’ ease upon that reason, that when devise was to one and the heirs male, of his body, and if he died without issue of his body, remainder over ; if he died without issue male, having issue female, she shall not take by implication. And Anderson said he heard Sir Anthony Brown rule this case : “ that when a man deviseth lands to his wife, and deviseth other lands to a stranger after the death of his wife, she shall not have those lands by implication, for when any thing was given by express words it shall not be intended that the devisor intended the other lands by implication, for it is to be supposed jf he had so intended he. would have given it before expressly.” And yet it is well settled that in all these cases an estate would have passed to the wife by implication, if none had been given by express words. These cases show that implications can not coexist with express grants. A fortiori an implication can not prevail against an express grant. In the case of Bampfield v. Popham, 2 Vernon 449, the Lord Keeper, assisted by Chief Justice Holt, Lord C. J. Moor, Sir J, Moor, and Mr. Justice Powell, all unanimously agreed “ that it was a fixed principle in law that an- express estate for life can not be enla/rged by implication ; by express words it may — as in the common case, if an estate be given to J. S. for life and after his decease to the heirs of his body, that by express words enlargeth his estate, and makes him tenant in tail; — and again, even in a will an implication shall not alter an express estate, but when there is a subsequent in express words to the same person that shall alter it.”
    Such indeed is the general rule of both law and equity on this subject — there are exceptions, but they are found only in eases where the general intent of the testator will evidently be defeated if the implication be not suffered to prevail over the express grant — and the intent must be certain and the implication clear — or according to the conclusion drawn by Mr. Cox, from the cases cited in his note to the case of 1 P. Wms. 54, “ That courts both of law and equity consider the raising estates by implication as depending upon such implication be-430] ing necessary to effectuate the general and manifest intention *of the testator.” The test question in this case at bar, then is — does this implication of theyws disponendi Claimed in the will effectuate the general and manifest intention of this testator as gathered from the whole will ? The answer is easy — it does not, but on the contrary, as the counsel contends, it swallows up and destroys every other devise-in the will and substitutes itself in their stead.
    Let us look for a moment at this proposition. There is in the will, first, an express devise of an estate for life, in Christian King. Second, an express devise of the remainder to his children or issue living at his death. Third, a contingent devise over to the children of Ish and Cassell. These gifts are entirely consistent with each other, and each distinct and specific, and may well stand. But the learned counsel says, there is an implication contained in the words, “ of which my brother Christian may be seized at the time of his decease,” in the-second devise, which is more powerful than all the direct devises, which destroys entirely the absolute devise even in which it is contained, destroys the contingent devise to the children of Ish and Cassell, destroys also the life estate created by the first devise, and creates a new and different estate in its stead. What then does it leave of the will ? Nothing whatever but itself — every thing else is destroyed, and the will is nothing but an implication.
    Mr. Stanbery cites the cases of the Attorney General v. Hall, and Ide v. Ide, to show that the power of disposition may be given impliedly ; and to use his own words, “ that the idea of an unconsumed residuum has no countenance in the authorities.” That the power of disposition may, in a proper case, be given impliedly, I do not at all dispute — but certainly neither of the cases which the learned counsel has cited to that point show it; as there was not in either of them any estate or any power held to have passed by implication — nor does either of those eases, if I understand them right, touch the other point to which they are cited. I speak of course only of the points cited in those cases.
    *The Attorney General v. Hall, Fitz. 314. The testator owning real and personal estate, gave it to his son and the heirs of his body, and if he should die, leaving no heirs, then he gave so much of the real and personal estate as the son should be possessed of at his death to the Goldsmith’s Company. The son aliened the real estate by common recovery, and bequeathed the personal estate by will to his wife,, and died without issue. The question arose between the wife, claiming the personal estate under the will, and the Goldsmith’s Company, and it was held that the wife was entitled. ' It is to be observed that an express estate-tail was devised to the son in real estate and personal-property — which of itself gives an absolute estate in the personalty. This being absolute'in the son, passed by his will to his wife, and she therefore was clearly entitled without any reference to an implied power of disposition. The real 'estate was not in question in the case. I aslc the court to examine the reported case, and they will see at once t.hat, however the reporter may wander out of the case, no question as-to an implied power of disposition, or as to an unconsumed residuum, did or could arise in it.
    Ide v. Ide, 5 Mass, 500, is sufficiently stated by counsel on the other side to show the point which it involves. In that ease a fee simple-was conveyed by the will in express terms “ to the son, his heirs and assigns forever.” But if he died without heirs, the estate he should leave was to he divided between two other persons. The court held the last devise void, and void it certainly was on these two grounds : First, a limitation is void after a devise of the absolute property, and it was void as an implication against an express grant. The direct estate “ to him, his heirs and assigns forever,” created a fee by express words, granting of course a direct and absolute power of disposition. The devise over of “ the estate he should leave,” implied a power of disposition not against but consistent with the absolute fee already granted. There was nothing from which to infer an intent to lessen the estate in the first devisee, but merely an attempt on the part of the testator, to devise over a contingent estate out of or beyond the fee ^already created, which the principles of law would not permit. [432. This case then can not aid in raising an implied power of disposition, against an express estate for life.
    I hold it then that Christian King had no power of disposition over this property by virtue of the devise directly to himself, or by virtue of the clause which I have considered in the devise over to his issue. Thus far he had only an estate for life, by express words, without the power of disposition.
    If I be right in this conclusion, there is an end of the question so-far as the real estate is concerned. For whether Christian had an. estate for life or in tail, the fee passes to his children, William and Flora, either as remainder-men under the will or as the issue of the first donee in tail under our statute.
    Second : We have next to inquire what estate is devised to the “ heirs born in wedlock ” of Christian King. It is admitted on all hands that the word heirs, can not have its ordinary signification in this devise. It is also admitted that it does mean lineal heirs, children or issue begotten by or descended from Christian King. But we contend, and this is the point in controversy, that the devise is to such person or persons, the issue of Christian, as may be living at the time of his decease. That if there be no such issue living at that time, the devise over to the children of Ish and Cassell takes effect. That if there be such issue living the testator does not assume to direct the transmission of the estate any farther, but leaves it a fee in such issue ■ — that is in the persons who may be such, issue — and that the devise over to the children of .Ish and Cassell is upon the failure of issue living at the death of Christian and not upon an indefinite failure of issue.
    The part of the will which involves this questian contains the devise to the issue of C. King, and also the contingent devise over to the children of Ish and Cassell. It is as follows : “ And if it so please Hod that at the time of brother Christian’s decease he should be possessed of a legal heir or heirs, born in wedlock, I then will and bequeath all and every kind of property which might be considered mine in my lifetime, and of which the said Christian may be seized at the 433] time of his *decease to such heir or heirs and no other. But should I myself die without lawful heirs and also my brother Christian die without heirs born lawful, as above stated, I then will what may be considered my share after my brother’s decease, and not before, to my two sister’s children, Ish and Cassell, in equal dividends or shares, and not to be used by any of them until they come to the age .allowed by law.”
    As the devise over to the children of Ish and Cassell is important to explain and give a construction to the next prior devise, I will consider it now, and endeavor to fix its true import, so that its exact effect on the prior devise may be more easily perceived.
    This devise over is to the “ children,” (not to the issue or descend.ants,) of Ish and Cassell. It is said by Roper, in his Treatise on Legacies, vol. 1, p. 69, that “ the word children does not ordinarily .and properly speaking, comprehend grandchildren or issue generally —their being included in the term is only permitted in two cases, viz: from necessity, as where the will would «remain inoperative unless the sense of the word children were extended beyond its natural import; and where the testator has clearly shown by other words that he did not intend to use the word children in its proper actual meaning, but in a more extended sense.”
    The reported cases abundantly show that the compiler is correct.
    In the devise under consideration, there is no necessity for extending the meaning of the word children beyond its ordinary import, as the will can have a full and perfect effect without doing violence in this respect to its language. And there is nothing to show that the .testator intended to use the word in any other than its ordinary sense. On the contrary, it is clear from the context, that he meant “ children ” in the ordinary acceptation of the term.
    First: He provides that his estate shall go to the children in equal dividends or shares, which if children here meant issue in succession forever, would be absurd. And second: It is not to be used “by any of them until they come to the age allowed *by law.” It is [434 clear from these clauses, that the testator had the two families of children in his mind — that he was looking to their condition and to the character and capacity of their parents — that he was providing for the “ children,” and not the remote descendants of his sisters — in short, that the word “ children ” was not misunderstood, or its use mistaken by him. From this conclusion two consequences follow :
    1. If Christian King had survived the testator, and died without lineal heirs living at his death, the children of Ish and Cassell would have taken, by the devise to them, an absolute fee in the real estate of the testator.
    2. That the contingency on which the devise over takes effect, must happen in the life of some one of the children of Ish and Cassell. It can not therefore, by possibility, take effect on the indefinite failure of the issue of Christian King.
    This view of the devise over to the children of Ish and Cassell, if I have appreciated it correctly, goes far to fix the quality of the estate of William and Flora as the issue of Christian King. For if the estate passed to the children of Ish and Cassell only on the death of Christian King without issue, and not on an indefinite failure of issue, the estate which vests in his descendants living at his death, there being no remainder over, is a fee.
    The estate, whose failure or termination gives rise to the estate in remainder, should be so adapted to its dependent estate that when the one fails or expires, the other may take effect, and they will, if possible, be so construed as to show that mutual connection and adaptation, for it is the clear purpose of the testator that it should exist.
    By this will, the remainder over to the children of Ish and Cassell vests—
    1. Either on the death of Christian without issue living, and then only; or,
    2. On his indefinite failure of issue, extending to all future time.
    The persons here provided to take in remainder are adapted only to 435] the first hypothesis. They do not and they can not *exist in the indefinite future. They are the “ children ” of living women, not the remote descendants. It is clear, therefore, by the devise over, that the testator did not look into the remote and indefinite future to direct therein the transmission of his estate,
    This fact is not of itself decisive, as no single fact is, or can be, decisive in the construction of a will, when circumstance has to be weighed against circumstance in order to arrive at the intention; but it is entitled to great weight, and was the turning point in the cases of Hughes v. Sayer, 1 P. Wms. 534 ; Nichols v. Skinner, Ch. Prec. 528 ; and Keily v. Fowler, 6 Bro. Parl. Cases, 309.
    The case of Hughes v. Sayer is, in substance, this : The testator having two nephews, devised the surplus of his personal estate to them, and if either of them should die without children, then to the survivor. It was held that dying without children must, in this case, mean dying without children living at his death, because the immediate limitation over'was to the surviving devisee. The Master of the Rolls, in his opinion, seems to make no distinction between issue and children, but to rest his decision solely on the ground that the devises over can not take effect in the indefinite future. He says : “ Here the words (dying without children) must be taken to be children living at the death of the party ; for that it could not be taken in the other sense, that is, whenever there should be a failure of issue, because the immediate limitation over was to the surviving devisee, and it was not probable that if either of the devisees should die, leaving issue, the survivor should live so long as to see a failure of issue, which, in notion of law, was such a limitation as might endure forever.” In the case of Forth v. Chapman, 1 P. Wms. 665, the Master of the Rolls, in commenting upon the above case, says : “ There is a diversity betwixt issue and children — issue being nomen collectivwm; and also between things merely personal and chattels real. More particularly in the case af Hughes and Sayer, by the devise over of the money to the survivor, if either of the donees should die without children, the testator, of necessity, *must be intended to mean a death of the [438 donee without children living at his death '; for to wait until a failure of issue might be to wait forever.”
    I can not find Cha. Prec., and therefore take the extract of the ease of Nichols v. Skinner, from Mr. Fearne’s Treatise on Contingent Rem., page 472. It is as follows : “ So, when A devised portions to his four children, payable at their respective ages of twenty-one, or marriage, and in case any of them should die before the time of payment, or without issue, then his or their portion to go to the survivors or survivor and his heirs, it was held this could not be a dying without issue generally, but so as the survivor might take, which must be in the life of some or one of them, and so it was good.”
    The case of Keily v. Fowler, or so much of the case as touches the point under consideration, was this :
    William Cronyn made his will containing the following clause : “ Item. I do leave and bequeath to my daughter, Jane Cronyn, all my worldly substance, land, stock, corn, debts and household goods, provided she marries with the consent of my executors hereafter mentioned, subject, notwithstanding, to my debts and legacies.” He then appoints his executors, and adds : “ Furthermore, I do appoint, that in case my said daughter should die without issue, that all my substance, as before mentioned, shall return back to my executors, to be distributed and disposed of as I shall hereafter direct.” “ And, lastly, in case my said daughter, Jane Cronyn, shall marry without consent of my executors aforesaid,‘ or shall die without issue, I do ordain and appoint that all the goods, chattels, land, and other my worldly substance, before to her bequeathed, shall return to my executors, to be distributed in manner following, to wit: To my nephew, James Donagan, £1C0, to Hester Gambin, £50, and each of my executors aforesaid £50,” etc. Jane Cronyn, the daughter, died without issue, and the question was, whether she took an estate-tail under the will, which of coarse would make void the bequests over of personal property, or an estate for life, which would make those bequests over valid. The Lord Chancellor of Ireland held the bequests over valid, *and [437 decreed accordingly, from which decree an appeal was taken to the House of Lords. It was there argued in support of the decree. “ that, though the words ‘ die without issue’ are in some cases, and especially in devises of real estate, construed to mean a failure of issue generally, whenever after it shall happen, yet, in the present case, such construction could not be admitted, not only because those words, in their natural import, apply to a failure of issue at the time of the death of the devisee, but because the testator had plainly shown his intention to restrain it to that time, by giving his estate, in that event, to the children of his sister, as personal provisions for them; and, particularly, by directing it to return to his executors to be distributed by them, thereby placing in his executors a personal trust and confidence, inconsistent with the extent of the devise, if it was not meant to take place within the compass of a life in being.” “ After hearing counsel on this appeal, the following question was put to the Judges, viz: ‘ When are the bequests over, in case his daughter should die without issue, to take effect according to the true intent and meaning of the will of William Oronyn ? Whether upon her death, and an indefinite failure of issue at any time, or, upon her death without ever having had issue, or upon her death without issue living at that time, or upon her death and failure of issue during the lives of the persons to whom the bequests over are made, or any of them ? ’ And the judges having taken time to consider, the Lord Chief Justices of the Common Pleas delivered their unanimous opinion, ‘ That the bequests over, in case the daughter of Wm, Oronyn should die without issue, are to take effect according to the true intent and meaning of his will, upon the death of his daughter without issue living at that time.’ Whereupon, it was ordered and adjudged, that the appeal should be dismissed, and the decree therein complained of affirmed.” 6 Bro. Par. Cases, 318.
    There is another particular in the devise over to the children of Ish and Cassell, which shows that it was to take effect on the decease of Christian King without issue, and not on the indefinite failure of issue. To get at the particular expression, I insert the paragraph : 438] But should I myself die without lawful heirs, and, also, my brother Christian die without heirs born lawful, as abovestated, I then will what may be considered my share, after my brother’s decease and not before, to my two sisters’ children,” etc. Then, after my brother’s decease and not before, does, according to the ordinary acceptation, mean immediately after or shortly after, not an indefinite period arter, The ease of Pinbury v. Elkin, 1 Peere Williams, 563, turns on this point. The testator made his wife executrix, and gave her all his goods and chattels, provided, that if she should die without issue by the testator, then, after her decease, £80 should remain to the testator’s brother. The words then after were taken to mean immediately after, and consequently to restrain the dying without issue to the time of her death. Though this was the turning point in the case, the Lord Chancellor also placed it on the ground that the personal legacy over to the brother was intended to take effect in the lifetime of the legatee, and not at a remote future, when the person for whom he intended the favor, should not be alive to receive it. In the last particular also, this case coincides with those above cited.
    Having considered the devise over to the children of Ish and Cassell, and its effect on the estate of William and Flora King, I will now examine the direct devise under which they claim. It is in these words i
    “ And if it should so please God that at the time of brother Christian’s decease he should be possessed of a legal heir or heirs born in wedlock, I then will and bequeath all and every kind of property which might be considered mine in my lifetime, and of which the said Christian may be seized, at the time of his decease, to such heir or heirs, and no other.”
    It is very clear that this devise, severed from all connection with every other clause of the will, gives to such person or persons as may be the heir or heirs of the body of Christian King, living at the time of his death, a fee in the lands of the testator — all my property to him or them and no other.
    If this devise had been made by precisely the same descriptive words, without any estate having been previously granted *to [439 Christian King, there can be no doubt that such would have been its effect — such persons as should happen to be living at the time of Christian King’s death, who were the heirs of his body would take an estate in fee, vested and absolute at the moment of his death ; and if he or they did not alien the estate, it would descend to his or their heirs, and not to the heirs of Christian King. He or they would form a new root of inheritance irrespective of the ancestor by the designation of whose heir or heirs they took the estate. In that case the heir or heirs would be designaiio personce, to point out the individual or individuals who should first take it, and not a nomen cotlectivum to bring together and embrace heirs in succession forever. The same will be its effect in the cáse under consideration, unless the estate in this devise be modified or controlled by previous or subsequent devises, or by the general intent of the testator as drawn from the whole will.
    
      2. Neither the language nor effect of the devise to Christian King does in the slightest degree modify or change the estate under consideration, but they do, on the contrary, strengthen and confirm it.
    His is an express estate for life, a matter not conclusive in a will, but. of great importance both as to the effect of the devise and as a circumstance to show the intent of the testator. It was indeed holden to be a controlling circumstance in Archer’s case, 1 Rep. 66, in Baldwin v. Smith, Cro. Eliz. 453, and in Bampfield v. Popham, 2 Vern. 427 ; S. C. 449.
    Archer’s Case. — Francis Archer was seized of land in fee, and held it in socage, and by his will, in writing, devised the land to Robert Archer, the father, for his life, afterwards to the next heir male of Robert, and to. the heirs male of the body of such next heir male. Robert had issue, John. Francis died. Robert enfeoffed Kent with warranty, upon whom John entered and Kent re-entered, and after-wards Robert died. At. first it was agreed by Anderson, Walsley and iotum cur, “ that Robert had but an estate for life, because Robert had but an express estate for life devised to him. and the remainder is limited to t.he next heir male in the singular number,” etc.
    '^The same ease is reported in Cro. Eliz. by the name of Baldwin v Smith, p. 453, in Replevin; when, having stated the case in substance as above, the learned reporter says as to the question, “ First, whether this be an estate-tail, or for life only in Robert;” and after giving the argument of Drew for the avowant, ádds, “ but all the justices (Owen absent.) held that Robert, the father, had but an estate for life, for so are the words plainly, and the right heir shall take it as a purchaser.” The counsel on the other side suggest that this case “has been very much misunderstood ;” but neither Sir Edward Coke or Chief Justice Croke would be likely to misunderstand it, at least it will require strong reason or high authority to convict them of a mistake in a case in which they concur. And they differ only in this : Coke lays the principal stress on the word “ heir ” in the singular, as showing the intent of testator to indicate the person who should take in remainder — Croke upon the estate for life expressly given in the aoviso. They concur precisely as to the case, the operative words, and the point adjudged. But the words in this will “heir or heirs,” are much stronger in support of this intent than the word “ heir ” standing alone in Archer’s case. The word “ heir ” alone, may be construed heirs, but when the same word is connected by the conjunction “ or ” with heirs, it can not be construed heirs without violence to the sense. So that heir, in the wiii under consideration, does not mean heirs, either as nomen collectivum or in succession forever. It means simply what it expresses, heir in the singular, and must be therefore the designation of an individual — the person. What then does the plural “ heirs ” mean ? Simply, if there be more than one at a like time, and under the like condition, to embrace them all; it is a designation of the persons. We have in this clause also of the express estate for life in Christian King, therefore, both the important elements which go to make up the judgment in Archer’s case, according to the opinion of Sir Edw. Coke and Chas. J. Croke, unite in this ease.
    Bampfield v. Popham, 2 Vern. 427 ; S. C. 440. Henry Rogers, by will, devised his estate to trustees, and their heirs, *in trust, [441 for the defendant, Popham, for life, and to his first and other sons in tail, but in case the defendant, Popham, died without an heir male of his body begotten, the trust to be void, and in such case, he gave the estate to defendants, (complainants?) The bill was brought to stay waste, and for an account of timber already sold, Mr. Popham having mo son. The question was, whether the words, “ if he die without an heir male of his body begotten,” gave him an estate-tail by implication, and it was held that it could not enlarge an express estate devised for life. The same case, p. 449, was “ argued before the Lord Keeper, assisted with the Lord Chief Justices Holt and Trevor, and Justice Powell, who all unanimou.-dy agreed that Popham had only an estate for life, and that it was a fixed rule in law, that an express estate for .'life can not be enlarged by implication — by express words it may,” etc.
    There are cases in which the last of these strong circumstances, the express estate for life alone, and unsupported, has been overruled by other words, showing clearly the intent of the testator to create an estate-tail, or a leading intent running through the whole will, which could not be satisfied without the creation of an estate-tail, as in the ease of Robinson v. Robinson, 1 Burr, 38, cited by Mr. Stanbery. There, the devise over is in default of such issue, which is the proper expression to indicate that, whenever, in the lapse of time, the issue inheritable by the terms of the devise shall fail, then the devise over takes effect; this creates an estate-tail in the isoue, and is holden powerful enough, by reason of the clear intent to control an-express estate for life in the first devisee, and enlarge it to an estate tail. The same is also the case in Dodson v. Grew, 2 Wils. 323. There the intent, clearly gathered from the will, that the sons Grew should take in succession, overruled an express estate for life in the first devisee. The case of Doe v. Chandler, 7 T. R. 534, is to the same effect, ; the clear intent that the progeny of the children of Ascough should take, and, failing that progeny, the remainder over should vest — controlled the express estate for life, and controlled also a clear purpose that the 442] children should take as ^purchasers. There is a very numerous class of cases to this point, and they rest upon the ground, th it it is impossible to satisfy the devises over, which define and dispose of the residue of the estate without holding the devise for life, and the devise over, an estate-tail. In the case at bar, there is no such indication of intention, and no such necessity, in order to effect an important general purpose, but in both respects, distinctly and clearly the reverse, for the devise over is to persons of the then present, or, at farthest, of the next, generation, the children of Tsh and Cassell, not their heirs or their issue, who may extend to a remote future period of time. Nor is there any thing in the devise to them, that looks to a remote future, when it may take effect; but the contrary — it is to the children, share and share alike. He bequeaths to them “ what may be considered my share after my brother’s decease,” and not before — that is, according to the case of Pinbury o. Elkin, immediately after. The bequest is on the express condition that the brother die without an heir or heirs of his body, living at his death. And the shares that pass to the children of Ish and Cassell, are “ not to be used by any of them, until they some to the age allowed by law.”
    Here is nothing with a view of entailment; no looking to the indefinite future for a failure of issue, on which this remainder is to take-effect. It is clear to me, upon a full consideration of these clauses, separately and conjointly, that the children of Ish and Cassell must take immediately on the death of O. King, or nevep — that they do not, by the form of the gift, leaving out of view our statute, take on the indefinite failure of issue of Christian King. In coming to this conclusion, we give its ordinary effect to the express estate for life. We-give its true and obvious effect to the remainder over to the children of Ish and Cassell, and we give due effect to the strong terms of the particular devise itself. “ All my property, to such heir or heirs, and no other.” These devisees, the heir or heirs of the body of C. King, having once taken, nothing can afterwards go by the devise to the children of Ish and Cassell, and I hold it clear that no reversion was 443] reserved or was intended *to be reserved by the will, to the right heirs of the testator. Then when the issue of C. King take, they have-no estate in fee.
    
      The devise .over to them, therefore, is the same in legal effect as if it were to them, their heirs and assigns forever, for thus they take by the devise itself, and the reasonable intendment of the whole will. We have, then, an express estate for life to C. King. A devise over to the hoir or heirs of his body, living at the time- of his death, and to their heirs and assigns forever. And it matters not whether all these elements are made up of express words, or deduced from the necessary legal effect of the words used, save only that what is implication will be controlled by what is expressly declared. This case contains all the governing terms which are to be found in Archer's case. But this is strengthened by circumstances that did uot unite in that. That was ■an express estate for life; so is this, also. That was with remainder to the next heir male. This to the heir or heirs of the body of O. King, who should be living at his death ; to one person, if there shall be but one ; to two or more persons, if there shall be two or more. It is as evidently as in that case a designation of the person or persons who are to take ; and, if there be more than one, that all should take at a particular instant of time, not in succession. In that case there was an express devise over to the heirs male of the body of the next heir male, creating an estate-tail in the second devisee. In this ease there are words in the devise to the issue of Christian King, which, in a will, are words of perpetuity, and which give them a fee. In addition to this, we have a remainder over to the children of Ish and Cassell, so framed that it cuts Off the possibility of the construction that the-estate is to go to them on an indefinite failure of issue in Christian-King, and therefore, the second estate can not. be holden an estate-tail by the form of the gift. There is another difference in these twocases, and between this and all other cases on this question, in England, which is, in my opinion, entitled to much weight. By the laws of England, an estate may be entailed, and kept in a line of succession, for a long period of ^titnc, much to the advantage of the de- [444 scendants of wealthy families. It is well kniwn to be an object much looked to in making wills and marriage settlements, and, in both these, the courts are astute to discover, and prompt to carry out, in till its consequences, this intent, whenever it can be done without violating any of the principles or rules of law. And, in looking over the cases, one can not but be amazed at the faint and shadowy grounds on which such intent is found or imputed. It is wholly and entirely from this cause that words which, in a deed, would not create an estate-tail, are made to create it in a will. There is no essential bias in wills, as such, towards estates-tail." They have the construction merely in following out the intent of the testator; and if he can not be found to have such intent, or if his obvious purpose can be as well carried out without imputing to him that intent, the English courts will no more incline to construe an estate to that effect in a will than in a deed. In this State, a will or deed which would have that effect at the common law, will be controlled by our statute, and create a fee just where we contend a fee was created by the form of this gift. In this condition of things, the court will not force the construction of the will, so as to create a limitation which the law of the land would instantly destroy. Hence should there be words in a will, which, in England, would be held in furtherance of the general intent to create an estate-tail, at the expense of other distinctly expressed purposes of the testator, a court sitting in Ohio where that estate is narrowed.down to an estate for life, remainder to the next donee in fee, would not hold the purpose to create it a controlling purpose, to which every other should yield. To do so and destroy each particular intent of the testator, in furtherance of a supposed general intent, which no man who knows the law, could have, and which the law makes abortive, would be to destroy, not to construe the will ut res magis pereat quam valebat. So say the English courts, in construing bequests of personal property, which rest on precisely the same ground as devises of real estate in Ohio. In the case of Forth v, Chapman, 1 P. Wnn, 663, Lord Par-445] ker, in pronouncing *the opinion of the court, holds that the same set of words are used in the same will, in different senses, as applied to freehold and personal property. He says, “ that the reason why a devise of a freehold to one for life, and if he died without issue, then to another, is determined to be an estate-tail, is in favor of the issue that such may have it, and the intent takes place, but that there is the plainest difference between a devise of a freehold and a devise of a term of years, for in the devise of the latter to one, and if he die without issue, then to another, the words (if he die without issue,) can not bo supposed to have been intended in favor of such issue, since they can not, by any construction, have it.”
    Pleydell v. Pleydell, 1 P. Williams, 747. Here it is held that a devise of £400 to A, and if A die without issue, then to B, was good, and must be intended, if A die without issue at his death. The chancellor, in pronouncing the opinion in this case, confirms the distinction taken in the former case. He says ; “ Though in case of a devise of land to a man, and if he die without issue, then to J. S., this would give an estate-tail, viz : to the issue of the devisee, and so, successively, to the latest posterity; yet such construction is contrary to the-natural import of the expression, and made purely to comply with the intention of the testator, which seems to be that the land devised should go to the issue, and their issue to all generations. But, notwithstanding this, it would be very strange to put a forced construction to words contrary and repugnant to their usual import, and only to defeat the design of the testator, by frustrating that estate which he intended to give.” And how, I would ask, can the intent of the testator here as to land, where land can not be entailed, he distinguished from his intent as to chattels, in England, where chattels can not be-entailed ? The supposition of intent, which governs the court on questions of entailments of real estate in England, is entirely removed there, in the case of chattels, and here in ease of real estate, because such entailment is, in both cases, impossible; and, in the language of the chancellor above quoted, it would, indeed, “ be very strange to put a forced construction *to words contrary and repugnant to their [446 usual import, and only to defeat the design of the testator, by frustrating the estate which he intended to give.”
    In Doe ex demise of Gearing v. Shereton, Cowper, 410, the above distinction is recognized and approved by Lord Mansfield. In Crooke v. De Vandes, 9 Vesey, 197, the authorities on this question are all reviewed and considered by Lord Eldon, and the distinction taken in the case of Forth v. Chapman, fully recognized and established. The same principle of construction applies to the case at bar, and in this respect, also, it is stronger than Archer’s case, and that large class of cases which are decided on the same principles. Wake v. Snow, Palm. 359, is to the same point with Archer’s case ; and the case of Bailey v. Morris, 4 Vesey, 784, is even more like the present case than either. I have examined the report, but choose to take the point of the ease, as extracted by Mr. Preston, (Estates, vol. 1, p. 349.) with his comments. It was “ a gift in settlement by deed, for the use of A, for life, remainder to W, for life, remainder to the heirs male of the body of the said A, by the said W, lawfully to be begotten, and his heirs, and for want of such, then, etc. Lord Alvanly decided that the words heirs male were words of purchase, and gave a contingent remainder in fee to the person who was heir to A, the wife, at the time of her death.” In commenting on the case, Mr. Preston says : “ The testator clearly intended such disposition as was inconsistent with the course-of descent, under an estate-tail in the parent, and also intended that; the persons whom he designated as heirs of the body, should have an estate to them, their heirs and assigns forever.”
    If the estate in remainder be a fee, and the limitation or designation of those who are to take in remainder be such that the devisee for life can not take a fee, his estate is not enlarged. It remains a life estate, and those who take the next estate take it as purchasers, not by descent. This is referred to in so many cases, as a controlling reason, and it seems in itself so essential to the symmetry of this branch of the legal system, that I think it may be considered as a 447] universal rule, in no ^instance departed from — that is, if there be a fee, limited over to the next in estate, an estate for life in the first devisee can not attach to it, and be thereby enlarged to an estate-tail. If the life estate can not be enlarged to a fee, it remains an estate for life. In other words, to take by descent, the heir must take the same estate as the ancestor, the ancestor can not take an estate-tail, and the heir take by descent through him a fee. The estate of the ancestor and heir must be one — leres et rotundas. This is necessarily pre-supposed in the case of Keily v. Morris, above cited; in Archer’s case; in Finley v. Ridell, 3 Bin. 139, and, indeed, in every case where the point arises. Whenever the quantity of the estate changes in passing from the first devisee, who happens to be the ancestor to the heirs, they take by purchase, and become the root of a new inheritance. In this point of view it is said by Mr. Preston, in his Treatise on Estates, page 274 and 283, that “ the estate of the ancestor shall not in any event be enlarged by the gift to his heirs.”
    But there are, nevertheless, many cases in which words of limitation, which import a fee, engrafted on words proper to create an estate-tail, are controlled by the general purpose of the testator, and made to coalesce with the words on which they are engrafted, and become an estate tail. Indeed there is no form of expression, no terms that are not in some case or other made to yield to the intent to create an estate-tail when that intent is clearly inferred from the general scope of the will. When that intent does not appear, the construction of a will is the same in this respect as the construction of á deed.
    The cases of Dubber v. Trollope, Gould v. Goddard, Whitney v. Wilkins, and Powsey v. Lodill, cited by Mr. Van Trump in pages 11 and 12 of his argument, merely establish the position that heir, when it is used in that sense and for that purpose, in a will, may mean heirs forever in succession. The cases are certainly very clear that it may, and if it be used without restriction, it will pass a fee; if, with the proper restriction, an estate-tail. This we do not dispute, or that the *words heir or heirs, in the will of William King, with other [448 controlling words, would have been made to mean heirs in succession forever, and have created an estate in fee or tail in Christian, as the case might be. What I contend, is that the devise over, after the life estate to Christian, to the heir or heirs of Christian, if he be possessed, of any at the time of his death, does of itself, and especially by its context, look to that particular point of time, and not prospectively forever, and that those words are not intended to embrace, nor do they in this will, embrace heirs of the body of Christian King forever.
    The words in the alternative mean this — if there be one person answering the description, he shall have the property ; if there be two, they shall have it. They are words, we agree, which might be controlled by other words showing a general intent, and give an estate-tail — but they are not appropriate to that end as they stand connected and limited in this will. The ease of Richards v. Bergavenny, cited by Mr. Van Trump, p. 13, is easily distinguished from the one at bar, though it is evidently an extreme case in apices juris. The law, as there laid down, conforms with authority, though it requires a pretty strong effort of construction to bring that case within it. It could have been done only in pursuance of the general intent of the testator, either as drawn from other parts of the will or extracted by the acute analysis of the English Courts, from the words of the devise itself. And to this point, 1st: The devise was to the Lady Bergavenny and her heir, by one entire connected clause, which Mr. Preston, in his Treatise on Estates, p. 272, thinks entitled to much weight. 2nd: Heir is here construed to mean heirs, and the limitation over “ in default of such heirs ” is the appropriate expression to give the termination of an estate-tail, after an indefinite failure of issue. But it is evidently a forced construction, to arrive at a pre-supposed intent; and to the extent to which it goes, can not be followed here, where the creation of an estate-tail is not in every man’s mind, and therefore not presumed to bo the general intent of every testator. The case at bar, differs from the case cited above in these particulars: 1st: The life estate and the ^remainder are created in separate clauses. [449 2nd : And much the most material, the last estate over, as appears by the terms of the devise itself, takes effect not in default of such heirs of Christian King in the lapse of time, but for want of such heirs living at his death. .In this case, then, the estate over is not, as it was held to be in that, on an indefinite failure of issue. I agree that cases may be found in which each separate element in this will, opposed to an estate-tail, has been destroyed by, or made to combine with such estate, by reason of a general intent to that effect, discoverable in the •whole frame and end of the will. But there is, as far as my researches go, no case in-which all the strong incidents have combined, or incidents of equal weight combined .in one will, conforming too, as in this case, to the general intent of the testator, have been wrested to the formation of such estate.
    But no rule can guide us safely through the wilderness of cases, and the great apparent conflict of authorities, except that which looks to the intent of the testator as far as it is consistent with, and can be carried out according to, the rules of law. Though he may not intend to create an estate-tail, yet if his leading purpose is obviously such as can not be carried out, without creating such estate, and can be carried out by creating it, the court will, if possible, by disregarding particular expressions, however strong, and destroying particular devises, however clearly given, so construe the will as to effectuate the leading intent by the creation of such estate. But when that intent does not clearly appear, and the leading purposes of the will can be carried out as well without as with the creation of the estate-tail, courts do not lean in favor of its creation in a will, any more than in a deed. (3, Atk. 797-8.) The object of this will, was first to give to Christian King an estate for life. This is better effected without than with the creation of an eestate tail. Second, to give to bis descendants, living at the time of his death, a fee. The whole estate to such heir or heirs and no other. This object would be defeated in part, by the creation of an estate-tail, and, as I have already shown, it might be defeated entirely. If 450] this be an estate-tail, *and Christian King had died before the testator, the whole estate would fall and his children take nothing. But if it be an estate for life, in that event the children of Christian King, would have taken directly under the will as purchasers and not as heirs, for if they could not have taken in way of remainder, because of the failure of the particular estate, the property would have passed to them by way of executory devise, as in the case of Pell v. Brown, Cro. Jac. 590. It was clearly the purpose of the testator, and a leading purpose, that the children of Christian King should take in any event before the children of Ish and Cassell, and before the estate should pass to testator’s right heirs. This leading object could not be effected if Christian King took an estate-tail, and courts in England would permit an object like this clearly shown to control the construction of a will.
    3d: Ilis next purpose was to give the estate to the children of Ish and Cassell, if Christian had no lineal heirs living at the time of his death. This devise is not affected by either construction. If Christian King die without a descendant living, and whether he die in the lifetime of the testator, or survive him, those children take. If this be an estate-tail, and Christian King die in the lifetime of testator, leaving an heir, that heir can not take, because the legacy is lapsed in his ancestor, through whom alone he could derive his title, and the children of Ish and Cassell can not take, for Christian King did not die without heirs, etc. And in the event of Christian King leaving issue who take, the children of Ish and Cassell can not be affected by the character of the prior estate. If Christian King have children, and the remainder to them is a fee, Ish and Cassell never can come in-under the will. If it be an estate tail in Christian King, our statute makes it a fee in his children, so that the same result follows. So far-then as the intent of the testator, and the objects to be affected by a will are concerned, they are against the creation of an estate-tail. The-construction of a will, going further than the construction of a deed, to meet the intent and fulfil the objects of the testator, this will should be construed more strongly than a deed against the formation of such estate. A *plain direct construction of the will, giving to every [451 part of it its fair intent, and true legal effect, will lead inevitably to the conclusion for which we contend.
    I have already shown, from authority, that courts in England, in order that every devise might have its full effect, and that none may fail, give to a devise of lands and of chattels in the same words, in the same will, a different construction. We have a right in this case, to the benefit of this rule. We have seen that the devise of the lands in this will is but slightly affected by the decision of the question, whether the first devise create a life estate or an estate in tail, but so> far as it is influenced by it, more perfect effect is given to all the devises therein, by considering it an estate for life. But as to the- personalty, the object of the testator in the several devises over, wholly fails if, the devise to Christian King is construed to be an estate-tail. Under these circumstances we claim that the court, in settling the nature of the estates, which the several devises take, should construe the whole will as if all the devises were of chattels merely. This-will carry out the intent as to the chattel interest, and it will more •completely effectuate that intent as to the realty.
    And to conclude, if I be right in the view presented under the first general head of my argument, William and Flora, the children of Christian King, are entitled to a fee in the real estate of the testator, whether Christian held in it an estate for life or in tail.
    And under the second head, that inasmuch as Christian took but a life estate in the lands of the testator, according to the principles of the common law, as applied to the construction of wills, and especially according to those principles, as modified by our statute limiting entails, he likewise took but a life estate in the chattels of the testator; and William and Flora take, under the bequest to them, a full property in all the chattels of the testator, not consumed by Christian in the use, but remaining at his death.
    *Mr. Van Trump, in reply.
    I call the attention of the court but to three of the propositions laid down by Mr. Ewing.
    First: That there being an express estate for life, devised to Christian King, that estate can not be enlarged into an estate tail by implication, but only by express words of paramount intention.
    Second : That an estate-tail can never be created, either by will or deed, where the devise or grant over of the remainder, is upon a failure of issue at the time of the death of the first donee in tail; and,
    Third : That the devise over in this case was upon a failure of issue at the time of the death of the first devisee, and not upon a failure of his issue in the indefinite future.
    These are the leading propositions, confidently advanced and strenuously maintained by counsel. As to the first proposition : In the opening argument for the defendants, it will be recollected by the court that we maintained that the interest of Christian King was an express estate-tail, per formam, doni; that if this estate did not exist by express terms of devise, then it existed by implication of law merely, either by its being, 1st, a devise over to collaterals of the first devisee; or, 2d, a devise over to collaterals of testator, they being also collaterals of the first devisee. It is admitted by counsel, that the estate of inheritance marked out by this will, is limited and restrained to a particular line of descent; and that this is done in express terms, is not a matter in controversy. If, then, as is unquestionably the ease, those terms have sufficient legal signification to describe an estate-tail, there is nothing to require us to go into the discussion of the question whether an express interest for life can he enlarged by legal implication. But if the court have doubts whether this devise, ex vi termini, creates an express estate-tail, and as the counsel for plaintiffs has somewhat elaborated his printed argument upon the question of paramount force as,between an express and implied grant, it is proper that this question should receive particular *attention. That [453 some of the early English decisions sustain the position assumed by counsel, is not to be denied, hut that the ease of Hingham v. Baker, Cro. Eliz. 15, cited in the opposite argument, so far as it relates to the point now under discussion, has been expressly overruled, both in England and in America, is equally true.
    In considering this question, very briefly, cases already' noticed in former arguments will necessarily have to be recited. The case of Morgan v. Griffiths, Cowp. Rep. 234, is directly and unequivocally in point. The terms of devise in that case, were as follows : — “ I do give, bequeath, etc., unto Thomas Griffiths, my grandchild, for and during his natural life, and after his decease, to his right and lawful heirs, etc., and for want of such lawful heirs,” devise over to another grandson of testator. Lord Mansfield said there could he no question that Thomas Griffiths took an estate tail, under the will of his grandfather. And that how did he take such estate? Were there any express words in that devise to show that the grandfather intended the estate to pass down from himself, and through the heirs of Thomas Griffiths by any particular line of succession? Clearly not. There is nothing expressly stated in the will to show his intention to have been that the heirs of the body of Thomas should inherit to the exclusion of other general heirs, without which an entail never can exist. “ Right and lawful heirs,” instead of meaning lineal descendants restrictively, are always the technical terms used by conveyancers to denote all heirs, both lineal and collateral, possessing inheritable blood of the ancestor. It follows then, inevitably, that this was an estate-tail by implication of law merely, and that the express estate for life was thereby enlarged into an estate of inheritance.
    Parker v. Thacker, 3 Lev. 70 ; Trin. 34, Car. 2 ; S. P. Vin. Abr. 252. The terms of devise in this case were : “ To W. T. for life, and to his heirs ; and for want of heirs to him, then to G. T. in like manner ; and for want of heirs of him, then to W. F. and his heirs forever.” The two first devisees, W. T. and G. T., died without issue — W. F. stood in the same line of ^consanguinity to the testator that the [454 two first devisees did. The devise, after full.argument at bar, was adjudged to constitute an estate-tail in the two first devisees by implication. This case is precisely analogous to that of Morgan v. Griffiths ; because “ heirs to him,” or “ heirs of him,” instead of describing or being restricted to a class of heirs, includes and extends to all right heirs.
    In 8 Mod. 260, the same proposition which is now advanced by counsel in the case at bar, was argued, that an express estate for life could not be enlarged by implication. But Raymond, C. J., said, “ That true it is, it has been held that where an express estate for life is devised, in such case no subsequent words shall create an estate-tail by implication : but .this is an old, antiquated, and exploded opinion, and contrary to the later authorities.”
    Jesson v. Wright, Dom. Prac. 2 Bligh. 1, overruling Doe d. Wright v. Jesson, 5 M. and S. 95. This is probably one of the most elaborate and best investigated cases upon the abstruse and difficult questions which it involves, as to whether an estate-tail is created, where the limitations over are intended and expressed to be a tenancy in common. And it reaches the case at bar, not only upon the question of enlargement of estate, but also as to the objections taken by Mr, Ewing upon the limitation over to the children of Ish and Cassell, as tenants in common. The devise was to W. W. of certain premises, for the term of his natural life, he keeping the buildings in tenantable repair; and, from and after his decease, he devised the same to the heirs of the body of the said W. W., lawfully issuing, in such shares and proportions as he, the said W. W , by deed or will, should appoint; and, for want of such appointment, then to the heirs of the body of the said W. W , lawfully issuing, share and share alike, as tenants in common ; and if but one child the whole to such only child ; and for want of such issue, then over. It was held by the court of King’s Bench that W. W., took an estate for life only, with remainder to his children for life, respectively, as tenants in common. Against this judgment, a 455] writ of error was brought in the *House of Lords. After a long and very able argument at the bar, the House of Lords reversed the decision of (he court of King’s Bench, and declared the devise to be an estate tail in W W., and not an estate for life. Lord Eldon, in moving the judgment of the House of Lords, observed that it is definitely settled as a rule of law, that where there is a particular and a general paramount intent, the latter shall prevail, and courts are bound to give effect to the paramount intent. He said the decision of the court below proceeded upon the ground that no such paramount intent was to be found in the will. His Lordship then read the devise, observing, that if he stopped at the end of the first devise to W. W., it was clear that he was to take for life only. If at the end of the first following words, “ lawfully issuing,” he would, notwithstanding the express estate for life, be tenant in tail; and, in order to cut down this estate, it is absolutely necessary that a particular intent should be found to control and alter it, as clear as the general intent here expressed. And his Lordship went on further to observe that a particular intent.never can overcome a general intent, unless it be clear, intelligible, and unequivocal. Now what is the general intent in the will of William King ? Is it not indisputable, that his brother Christian and his heirs lineal shall have his entire property, both real and personal, in exelusion of collaterals, the children of Ish and Cassel ? The particular intent, as claimed by counsel, is that the “ heir or heirs” of Christian shall take as purchasers. Now comparing the terms of devise in the case at bar with those of Jesson v. Wright, and where do we find the elements of that intent? I am unable to find any.
    But the case of Lillibridge v. Adie, 1 Mason’s C. C. 224, must set this question at rest, without the accumulation of any additional authorities. The clause in the will, upon which the question arose, was as follows ; “ I give, grant, and devise, unto my beloved wife, Mary Sabin, all that, my lot, where I now dwell, with the dwelling house, store and wharf thereon standing and being, for and during the term of her natural life, and after her decease, to my two beloved *daughters, [456 Harriet and Clementina, to them, their heirs and assigns forever; but in ease they should die without issue, my will is, that the same shall go to and vest in their two sisters, Mary and Charlotte.” Now, if it be true that an express estate for life can not be enlarged by implication, the converse of the proposition must be equally true, that an express estate in simple, or any other estate, can not be restricted or out down into a lesser estate by implication. But what does this case in 1 Mason decide ? The express devise to Harriet and Clementina, is an absolute fee simple, “ to their heirs and assigns forever.” Then follows the clause upon which the implication is not raised, but made to operate, and which narrows down the fee into an estate-tail, “ but in case they should die without issue.” An estate-tail is not considered as created by the word “ issue,” merely ; for that word, in a will, may mean either heirs general or special: but the implication is based upon the fact that the limitation over is in favor of persons who were heirs as well of the testator as the two first devisees. Clearly, then, there can be no question at this day, that an express estate for life may be enlarged by implication.
    The doctrine contended for by counsel, strikes at the very root of even the firmly established rule in Shelly’s case ; for there it must ever be, when the entire fee is not vested in the first taker, that the lesser estate in the ancestor is enlarged by implication upon the subsequently engrafted words, which create an estate of inheritance in his descendants or heirs. But Mr. Ewing contends that because our statute, in declaring the effect of an entail as a species of assurance, vests the fee in the issue of the first donee, his estate can not coalesce with that of his issue. But why not ? The statute neither changes or “ forbids ” the existence in this state of the legal ingredients of an estate-tail — its effect, as well as its design, is to change the incidents of the estate; and the question before the court as to the realty, admitting that, as to this speciés of property, the devise creates an estate-tail, is not as to how the realty shall vest in the devisees, but what is the true legal interpretation of the language used, in order to arrive at the in-457] tention of the ^testator as to where the absolute property in the personalty shall go ? The statute does not direct the court how to interpret, but to declare the effect and result of the instrument, as to a conveyance of real estate, whenever an estate-tail is attempted to be created, and the court have so interpreted it. This idea of counsel that, because the two subdivisions of interest in the ancestor and his heirs, either immediate or remote, can not coalesce in fact, there can he no estate tail, is certainly not the true test; because the interest of the ancestor and his heirs, where an estate-tail is attempted to be created even in England, does not any more coalesce before he levies a. fine or suffers a common recovery, than it does in Ohio under our statute. It is only by a fine or common recovery, that the ancestor, even there, unites the fee with his particular precedent estate ; and, before that is done there can be no coalescing of estates, except only so far as the legal fiction, growing out of a question of judicial interpretation, is concerned. I take it, therefore, that our statute has nothing to do with the interpretation of the will in this ease. That is exclusively a judicial function, to be governed by the rules and principles of the common law; and if the judicial interpretation of the instrument is announced to be an estate-tail at the common law, then the statute steps in and declares its effect upon the interests of the parties; nothing more. It does not war with the particular devise or grant; it leaves to the common rules of exposition the task of working out the meaning, and stands aloof until they have performed their office. Similar statutes in other states are not construed as precluding the question of construction in favor of entailment.s. The revised statutes of New York have precisely the same provision, as to the effect of an entailment of real estate that our statute' has ; yet the-question has been frequently agitated in their courts as to whether the interpretation of a deed or will did not involve the intention, on the part of the grantor or testator, to create an estate or interest in lands-which combined the elements of an estate-tail; and whenever that intention was found to exist, their tribunals have uniformly declared in favor *of such estate, in accordance with the principles of the [458 common law, leaving it to the statute to declare its effaet upon the interests of the parties. So, too, in Rhode Island, where the case of Lillibridge v. Adie arose in the Circuit Court of the United States, and the decision of Mr. Justice Story was in conformity with the common law rule of interpretation. I have thus argued this question of enlargement of estate as though there were no reasonable doubts to,be entertained that the devise in this ease to Christian King was an express estate for life. But the proposition is by no means clear of difficulty.
    The next question which I propose briefly to consider, is whether an estate-tail can exist, where the limitation over is upon the failure of issue at the time of the death of the tenant in tail of the particular-estate. As this point has already been partially considered in my former argument, I shall only cite here one or two eases to show that, such estate can exist under such a limitation. It is claimed by counsel that because the second limitation over, after the failure of issue of Christian King, is to the children of Ish and Cassell, that such failure of issue must be taken to transpire at the death of Christian. There-is much apparent force in this argument ; and although I claim that the limitation of an estate-tail is good even upon such a failure of issue ; yet let us look for a moment and see if, under such a devise as this, courts have construed the failure of issue as at the time of the-death of the tenant in tail. I shall call the attention of the court but. to two cases to show that this has not been the legal construction. The case of Hayes ex. dem. Foorde v. Foorde, 2 Bl. 590, is so closely analogous to the case at bar, both upon the terms of devise aud the-relations of the parties, as to set this matter at rest. The case was as follows : “ Foorde made his will, having then two sons, I. and N., and gave his real estate to his eldest son R., at his age of 23, to enjoy the whole during his life. And the whole estate, of which he is only tenant for life, shall, after his decease, go to his eldest son that shall be then living ; and if he dies without any son or sons to entiy it during their lives, (of which none are or shall be tenants, but while 459] they live to *enjoy it,) that then it shall come to his brother W. during his life, and to any of his heirs male during their lives, and no longer; and if they die without issue male, then to the heirs mtle of my brother N’s sons, and to any of their heirs male during their lives, (of which none of them are tenants any longer, nor shall be in any of their powers to sell, dispose, or make away any part or the whole of it,) and in ease they all die without heirs male, then it is to go to the next of kin of me.” At the same time, and with the same solemnities, the testator published a schedule, referred to in the will, and which the speoial verdict of the jury found to be part of the will, containing a very particular account of all his real and personal estate ; the title to which schedule was in these words . “ An account how I dispose of my estate to my son R. as followeth : he paying his mother out of my real estate the sum of £15 per annum during her life, and £2! per annum out of my mortgages, and then all to revert to my son R, during his life; and after his death, to his sons ; and for want of sons, to his brother W. during his life, and afterwards to W.’s eldest son ; and for want of his having sons, to my brother N’s sons; and for want of any sons, to my son’s daughters, and so to the next of kin.” R. and W., the two sons of the testator, died without issue male ; then J., the eldest nephew, died before W., the son ; and upon W’s death, the youngest nephew entered, and suffered a recovery. The question was, whether N , the nephew, took an estate for life or in tail, under the will and schedule ? The court of King’s Bench in Ireland, was of opinion that he took only an estate for. life. Upon a writ of error to the court of King’s Bench in England, Lord Mausfield decided it to be an estate tail male, and judgment accordingly. The court will observe the very marked features of this case. Every limitation over upon each particular estate for life given to the respective tenants in tail, were to their sons, their eldest sons, or their daughters, thereby showing, in much stronger terms than those in the case at bar, that the testator was looking to a special, rather than a general and indefinite failure of issue.
    Upon this point in the case, I can not refrain from again citing 460] *the case of Bergaveny v. Bergaveny, 2 Vern. 224, and I do ¡so because Mr. Ewing has clearly, but unintentionally, misstated the case. The words of- devise, as stated in the report, are “ and such heir of her body as should be living at her death,” and not as counsel has stated them, in the mutilated and contracted sense, “ in default of such heirs.” Mr. Ewing claims that the limitation over in the case of Bergaveny v. Bergaveny, was decided to be upon an indefinite failure of issue, Now, although that point does not appear to have been Taised in the case, I am perfectly willing that the court shall now consider it, either as an authority for the failure of issue at the death of the first devisee, or for an indefinite failure ; because, in either event, must the judgment of this court be the same, upon this particular devise. If they hold that it is an authority for the failure of issue at the time of the death, then it proves that an estate tail can be created upon such failure of issue, for such is the determination of the Chancellor in that case. On the other hand, if they agree with counsel, that the case decides the limitation over to be upon a failure of issue in the indefinite future, then, as I shall show hereafter, the case at bar must also be decided upon that ground in our favor ; for the language in the case in Vernon is much stronger as a declaration of intention as to when the failure should take place. And, if the devise at bar is so interpreted, then the limitation over is too remote to be good even as an executory devise, and Christian King took the absolute property in the personalty.
    The next and only remaining point which -I shall notice, is as to the nature of the failure of issue of Christian King — whether the limitation over looks to the time of his death or the indefinite future. The case of Keily v. Fowler, so confidently relied upon by Mr Ewing, as settling the rule that the devise over in this case must be construed to be upon a failure of issue at the time of the death, is clearly distinguishable from the case at bar. Counsel on the other side ha§ Failed, to state fully the nature and minute particulars of the devise in lhat ease. It was as follows: William Cronyn left and bequeathed unto his daughter and only child, all his worldly substance, *lands, [461 stock, corn, debts and household goods, provided she married by the consent of his executors therein mentioned; but in case slit married without the consent of his executors, she was to have only twenty cows and a horse for her whole fortune : and after naming A and B his executors, he appointed that in case his said daughter should die without issue, all his said substance should return back to his executors, to be distributed as he should thereafter direct. And, lastly, in case his daughter should marry without consent, or die without issue, he appointed that all his said substance, etc., should return back to his executors to be by them distributed in manner following : To his nephew J. D. £100, to H. G. £50, to his daughter twenty cows and a h'irse only, and the remainder to be equally divided among the children of his sister E. F. The question was, whether the limitation over of the personal estate, after the death of testator’s daughter without issue, was good. The Court of Chancery in Ireland held that it was, and their decree was affirmed, as Mr. Ewing states, by the House of Lords in England, upon the opinion of the judges, that the bequest over was to take effect on the death of the daughter without issue then living. But under the provisions of a will like that, how could it be otherwise? The direction of the testator was, that if his daughter should die without issue, the property should revert to his executors.
    Now if the court should have held that the testator was looking into the indefinite future for a failure of issue of his daughter, they would have put such a construction upon the devise as to have frustrated a leading and express intent of the testator, that the property should go t.o his executors, upon the happening of a contingency in-their lifetime. And how could the property have passed to them, unless the contingency upon which it was directed to pass, should have transpired in the lifetime of the executors ? They were charged with the execution of an alternative trust to be performed either upon a marriage of the daughter without their consent, or her dying without issue. To carry out the leading and paramount intent of the testator in the creation of that trust, the court were compelled to take 462] *this case out of the general rule, and to declare that the failure-of issue was limited to the time of the death of the first taker. The case is reported in 6 Bro Parl. Cases, 318, a book that I have been unable to lay my hands upon ; but the distinctions above stated must have influenced the court in their decision ; otherwise, the case of Bigges v. Binsley, 1 Bro. Ch. 187, can not stand as sound law, the authority of which has never yet been questioned In that case the testator bequeathed all his personalty to Frances Harris, her heirs, executors, administrators and assigns forever; but in case of her death without issue, he gave the whole to the eldest son of his brother Richard, his heirs, etc., and if there should be no such son, to his said brother. Lord Thurlow was of opinion, and so decided, that the words “ in case of her death without issue,” even when coupled with a limitation over to persons in esse, must be understood to mean a general failure of issue, and that the bequest over was therefore too remote. It is a fact which is readily admitted by counsel on both sides of this case, that the question which the will at bar involves, as to the nature of the failure of issue, is one exceedingly difficult to solve, running as it does into some of the nicest distinctions of legal interpretation to be found in the books. But let us see whether the words in this devise must necessarily be expounded to mean such a failure of issue as is claimed by counsel. Great stress is laid upon the phraseology, “ if he should be possessed of a legal heir or heirs,” etc. But this is only the statement, even in a strict and literal sense, of a fact which must exist under all circumstances, and at any time, in order to vest the interest in the issue, either immediate or remote. A man, in legal estimation, is as much “ possessed” of an heir at any remote period of time, whenever such heir is in esse capable of taking the inheritance, as though he were in being at the time of the death of the ancestor. But this literal interpretation is overcome by authority. In the case of Hatch v. Bluck, 6 Taunt. 484, the devise was by A B, of lands to his wife for life, and, at her death, to his son B, and his heirs forever ; “ and if B should die unpossessed of them, or without theirs,” then over. It was said by Best, Serjt. arguendo, that [463 “ it was difficult to understand the meaning of the word ' unpossessed,’ but the only construction it would bear was, that if John Peart (the son of testator,) died, living his mother, the estate should absolutely go over to his sister.” But the court decided against this construction, and declared it to be an estate tail in the son.
    I shall not reconsider Archer’s case, so much relied upon by counsel, for tear that I might again throw myself liable to the very serious charge of presumption, in having the hardihood to question the construction of my Lord Coke! It may be presumption in me to pronounce, but certainly not to show, that he was mistaken. I suppose Mr. Ewing would consider it equally presumptuous in me to even hint that he, too, is mistaken in denominating Mr. Justice Croke as Lord Chief Justice.
    A distinction is attempted to be established by counsel, as between real and personal property, in a limitation over like that in the case at bar ; and to sustain this position, the case of Forth v. Chapman, 1 P. Wms 663, is relied upon. I admit that the language used by Lord C. J. Parker, in that case, will bear such interpretation ; but has that case hecn sustained by the modern decisions ? If this doctrine is sustainable, it is because the limitation over would be good as an executory devise, and not ás a remainder engrafted upon a determinable fee, which the case at bar must inevitably be, if the limitation over is declared to be good upon a failure of issue at the time of the death. It is a well settled rule of law, that where an estate-tail is created by will, there can be no executory devise over, so as to defeat the prior limitation in tail, or, in other words, although such executory devise may technically exist upon such prior created estate, yet, according to Fearne, it is to be observed, that where in lands of inheritance an estate-tail is first limited, and then an executory or conditional limitation is made upon that estate, a recovery suffered by the tenant in tail, before the event or condition happens on which the ulterior limitation 464] was to arise, will bar and destroy the estate depending *on that event or condition. Ex. Dev. 424. The acknowledged rule of law, then, in England, is, that where an estate-tail is created as to real estate, no limitation over by way of executory devise can be good, so as to affect the interest of the tenant in tail ; and that the legal consequence of this rule is, that wherever personalty is bequeathed in the same will with a devis.e of realty, the absolute property in the personal 'estate is vested in the first taker, uncontrolled by any conditioner contingency whatever. If this principle of construction is to be acknowledged and adhered to here, then the distinction attempted to be made by counsel as between a devise of real and personal estate, and in the same will, like in the case at bar, completely falls to the ground. Chancellor Kent, in his masterly and very critical review of all the English authorities, in the case of Anderson v. Jackson, 1 John. 409, (he having examined .some seventy cases upon the point in issue,) thus speaks of the supposed distinction claimed by counsel in this case : “ But. even in respect to such a bequest of personal property, there is much difference between the cases ; and I think the weight of authority decidedly is, that the words ‘ dying without issue,’ mean here also (that is, as to a bequest of personal estate,) a general or indefinite failure of issue, and that the limitation over would be void.” He also says, at page 401 of the same ease, “I incline to think that in nineteen cases out of twenty, the testator really means a general or indefinite failure of issue.” Counsel has cited the case of Pleydell v. Pleydell, 1 P. Wms. 747, which was exclusively a bequest of personalty, to show that personal property could not be entailed. No one, in this case, has pretended that it could. It is clearly not a subject of entailment in itself. But the rule is, and that is what we are contending for, that wherever, in a will, a testator devises real and personal property together, and the term of devises, as to the realty, create an-estate-tail in the first tenant, he has, by virtue of that estate, the absolute and unconditional property in the personalty. The case of Pleydell v. Pleydell, is also relied upon to give a construction to the devise at bar upon the question of *failure of issue. The. devise in [465 that case was of £400 to A, and if A die without issue., then to B, who was then in being.
    The reason is too apparent for that decision, to need argument here. But to return to the principle of Forth v. Chapman. That case contained the words “ leaving issue.” Lord Hardwicke, who was counsel in the case states, in a subsequent case before himself as Chancellor, that great reliance was put upon the word “ leaving,” as denoting the time of the failure. The case of Daintry v. Daintry, 6 T. R. 313, is one where real and personal estate were both devised in the same will. The language of the testator was, “ if my son shall happen to die without leaving issue of his body lawfully begotten, then over.” Upon the argument, Lord Kenyon intimated that an estate-tail was created, in the real estate, but the devise over of the personalty was probably good. But the whole court certified that the legatee took the persofialty absolutely. In the ease of Crook v. Devandes, 9 Ves. 203, cited by Mr Ewing at page 22 of his printed argument, Lord Eldon-did intimate the opinion ascribed to him'; but if the court will look into that case they will find that he decided that the first devisee took an absolute interest in the personal estate, and that, too, because he took an estate-tail as to the realty.
    I claim that the case of Forth v. Chapman, is overruled. It was decided in 1720. Fifty-one years afterwards, was decided the great case of Daw v. Tothill, 6 Bro. Parl Ca. 450. I have to take the statement of the case as I find it in the case of Patterson v. Ellis, hereafter to be noticed. The question arose upon the will of Robert Tofhill. He gave Sir Wm. Pynsent, the dividends of £4000 Bank Stock; to Leonora Ann Pynsent, daughter of Sir William, he gave both real and personal estate, during her natural life, and after her decease, to the heirs male of her body forever ; and for want of such issue to William Daw. The court will observe that here, also, the limitation over, after a failure of issue, is to a person in being. Miss Pynsent died before her father, in 1763, and bequeathed all her real and personal estate to her father, who took possession thereof. Sir W. Pynsent died in 1765, having *made his will and given all his real estate and the resi- [466 due of his personal, to Earl Chatham, the appellant. After Sir William’s death, the respondent, Daw, claimed the bank stock, etc. A bill was filed by Daw, and.answers put in. The cause was heard on bill and answer. Sir T. Sewell, Master of the Rolls, ordered the bill to be dismissed. Three years afterwards, an appeal was brought to the Lords Commissioners, who reversed the decree of the Master .of the Rolls, and made a decree in favor of the respondent. From this latter decree the appellant appealed. The cause was argued by counsel so eminent as Thurlow, Maddock, Wedderburne and Dunning. For the appellant, it was argued that the giving the real and personal estate to-Miss Pynsent for life, remainder to the heirs of her body, gave an estate-tail in the real estate, and an absolute interest in the personal estate ; and for the respondent it was argued that only a life estate was given to Miss Pynsent, and as she had died without issue male, the devise over was good.
    After the argument, the following question was put to the judges ; Whether, in the event which has happened, the devise to the respondent -of the bank stock, etc., was good and effectual, or void. The unanimous opinion of the judges was that the devise over was void, and the decree was reversed. Mr. C. J. Savage, in commenting upon this ease in that of Patterson v. Ellis, 11 Wend. 286, says: “ This case was decided in 1771, fifty-one years after the case of Forth v. Chapman. Whether that case was cited is not stated in the report. It appears in a subsequent case that such was the fact. It is not to be denied that the same question was involved. In both eases, real and personal estate were given in the same words. As the cases are reported, they can not stand together; and though it does not appear that Forth v. Chapman was overruled, yet such would seem to he the effect of the decision of Pitt v. Daw.” The learned Chief Justice also further remarks, that “ the distinction taken by Lord Talbot, in Atkinson v. Hutchinson, 3 P. Wms. 258, that when the words would give an express estate tail the construction of law must obtain, but not where 467] only an implied estate-tail was given, was very *much labored in Daw v. Pitt; for in that case there was manifestly but an estate for life, and the testator anxiously endeavored to restrain it to an interest for life, but that distinction was exploded; and the rule is general, that where the words raise an estate-tail in real estate, they give the absolute property in personal estate; and if there is no distinct expression to restrain it to the time the law allows, the consequence must prevail, whatever is the intention.” 11 Wend. 289.
    Where personal property is given by will to the first taker in words which would give an estate tail, or a fee conditional at common law in lands, and it is then limited over by way of executory devise, even to a person in esse, the limitation over is too remote and void, and the first legatee takes an unlimited estate. Henry v. Felder, 2 McCord’s Ch. 323. In the case of Doe v. Cooper, 1 East, 230, in a devise over, the words were, “ in default of his leaving issue,” after an estate for life, were held to create an estate-tail; though, as was remarked by Lord Kenyon, the particular intent of the testator might be answered by giving the devisee only an estate for lite ; but the general intent was that all his issue should inherit before the estate went over. Now, can there be any question but that the general intent of William King was, that the issue of his brother Christian should be exhausted before the property went over to the children of Ish and Cassell? This proposition is not answered by saying that he did not mean to exhaust that issue, because the devise over is to the children of Ish and Oassel. Upon this question we beg the court to consider the cases already cited, where the limitation over was to persons in actual being and at the time of the devise made. There is nothing, moreover, in this case, to show that any children of Ish and Cassell were in being at the time of this devise. In Tenny v. Agar, 12 East, 254, the testator, after giving an estate to his son, John Agar, and his heirs, upon a certain condition, and upon a breach of that condition, to his daughter, added : “ And in ease my said son and daughter both happen to die without having any child or issue, then over.” The question was upon the validity of the devise over. The court *decided the limitation [468 over void as being upon an indefinite failure of issue. In the case of Patterson v. Ellis, 11 Wend. 259, decided as late as 1833, all the learning upon this difficult and abstruse question is exhausted. That ease settles the law upon this branch of the ease as follows : 1st: That where the words of limitation over of personal property are such as would create an estate-tail in the legatee first named, was real estate, the subject of limitation, the gift to the first legatee is absolute, by operation of law, notwithstanding the manifest intent of the devisor to the contrary ; such intent being in contravention of the settled rules of law, must yield to the law. 2nd: The rule is the same, whether the estate-tail is created by express words or by implication. 3d : Chattels or money may be limited over after a life estate, but not after a gift of the absolute property. 4th: An executory devise, limited upon a general failure of issue, is void, because limited upon an event which may not happen within the compass of a life or lives in being and 21 years and 9 months afterwards, a period beyond which an ex-ecutory devise can not extend ; and as the event may exceed the prescribed limits, it is void at the commencement, let the fact turn out as it may.
    I have thus shown, as I think, with a moderate degree of conclusiveness at least, that the case of Forth v. Chapman, is not to control the case at bar, upon the distinction attempted to be set up as between a devise of real and personal property. But the great doubt, at last, in this case, is, as to the nature of the failure of issue. I claim, however, that the decision of that question is not necessary to the true adjustment of this case — because if the court shall find that the terms of devise would have created an estate-tail, as to the real estate in England, then the limitation over as to the personalty is absolutely void; and that it is equally so, whether the failure of issue was to take place at the time of the death, or in the indefinite future. This is a rule of law which over-rides even the intention of the testator — a rule which is acknowledged and enforced in New York, a State whose statute as much “ forbids” an estate tail as ours can possibly do. 469] *I have thus again argued this case at much greater length than I at first anticipated, but the rules of law by which it is to be governed, are so complex, the principles of interpretation so varied and shadowy in their distinctions, and the questions themselves so-novel and interesting in Ohio, that the court will excuse the prolixity of counsel on both sides, in their endeavors so to place the case before them as to relieve them of much in the examination which would be both tedious and unprofitable.
    Mr. Ewing, in reply.
    One or two matters misapprehended by counsel I propose to set right; and,
    1. He supposes me to contend that an express estate for life cannot be enlarged into an estate-tail by implication, but only by express-words.
    In this he is entirely mistaken. In page 18 of my brief, I consider this question, and say that “ there are cases in which the express estate-for life alone, and unsupported, has been overruled by other words, showing clearly the intent of the testator to create an estate-tail or a leading intent running through the whole will, which could not be satisfied without the creation of an estate-tail.” The counsel has, no-doubt, fallen into the error by applying what I say in pages 6 and 7, on the subject of implications, when they stand opposed to express grants. That refers to another subject matter, in which the holding has been uniform, as I have stated.
    The counsel has misapprehended the object and bearing of the case of Plcydell v. Pleydell, which he says is cited “ to show that personal property could not be entailed.” I have referred to, and commented on that case, in the 21st page of my argument, where I contend, and cite the opinion of the Chancellor to show, that, inasmuch as personal property can not be entailed, courts will not presume that it is the leading object of a testator to entail it, and, therefore, that they will .not, in the language of the Chancellor, “ put a forced construction *to words contrary and repugnant to their usual import, only to [470 defeat the design of the testator, by frustrating the estate which he intended to give.” And as land can not be entailed in Ohio, I contend also that the Chancellor’s reasoning as to a bequest of chattels in England, applies in its full force to a devise of real estate in Ohio.
    To conclude, I do not say that, any single fact or expression in this will is sufficient alone, and of itself, to fix the construction for which I contend, against any and all possible countervailing words, or proofs of intent which are found in the eases cited, and which might be supposed in this. But I do say, that,
    1. The express estate for life given to C. King ;
    2. The words heiror heirs as they appear in the devise over to his issuer
    3. The word ‘‘ then,” etc., occurring with the context as in the case of Pinbury v. Elkin, cited in p. 15, of my argument;
    4. The devise over to the children of Ish and Cassell, in equal shares, etc.;
    5. The fact that an estate tail could not be created by our law, and is therefore not to be a presumed purpose — do, all combined, and without any countervailing word or sentence, make up a mass of evidence as to the intent of the testator which it is impossible to resist.
   Lane, C. J.

This will, reduced to its simplest terms, contains the following provisions:

1. A devise of real and personal property to Christian King ;

2. After his death, to the heirs of his body ;

3. But if he die leaving no heirs of his body, then to be divided equally among his sisters’ children.

If Christian took an estate in fee, the lands descended to his heirs general, charged with his debts, and the personalty belongs to the administrator.

If he took an estate-tail, the land at his death, by our statute of entailmenb, (Swan’s Stat. 319,) belongs to the heirs of his body in fee, 471] and the personalty, not being the subject of entailment, *was held absolutely by him, and now belongs to his administrator.

If he took an estate for life, the land at his death passed to the heirs of his body in fee, and the personalty may likewise pass to them, by way of remainder, unless the will contain other provisions, which make the title absolute in the first holder.

We are led at once to Shelley’s case for the law which governs this. The rule, although not now applicable to wills, taking effect since 1840, (Swan’s Stat. 999, § 47,) is, in all other respects, a rule of property in Ohio. McFeely’s Lessee v. Moore’s Heirs, 5 Ohio, 465.

The rule is, where a freehold is limited to one for life, and, by the same instrument, the inheritance is limited, either mediately, or immediately, to his heirs, or to the heirs of his body, the first taker takes the whole estate, either in fee simple or in fee tail; and the words, heirs,” or “ heirs of his body,” are words of limitation, and not words of purchase.

This will contains the essential elements by which the limitation of the estate it creates are subjected to the operation of this rule. We-'find a legal freehold in the devisee — a legal estate in his heirs, limited by way of remainder,- in the same instrument, aud the rule, if it applies, gives to Christian King an estate in fee, or in tail.

The counsel of William and Flora King appeal to other considerations to escape from these consequences. In our endeavor to grasp these principles, while exploring fields beyond our common studies, where the foundations, as well as the superstructure of reasoning, are so artificial and so nice, we have found what we had a right, and felt it a privilege to expect, that in the magnum mare of law, which the hooks contain upon the rule of Shelley, few points can arise which have not been the subject of positive adjudication.

First: The will does not assume to give the property to Christian, except only “ to be used by him while he lives,” and it is thence inferred that he has a life estate only. But it has been determined that 472] a declaration in the limitation, that the ^estate is given “ for life,” or for life only,” or “ for life and no longer,” will not prevent the application of the rule. Roe v. Bedford, 4 Maule & Sel. 362 ; Robinsun v. Robinson, 2 Ves. Jun. 225 ; 1 Bur. 38 ; 3 Brown, P. C. 180 ; Doe v. Cooper, 1 East, 229.

Second; Reliance is placed upon the use of the word, heir or heirs,” in the will, as indicating a particular person, and not a class, or a line of descent; but the authorities preclude any such inference. C. J. Eyre, in Dubber v. Trollope, Ambler, 453, says the word ‘ heir,’ in the singular number, is all one with the word heirs.’ ” In Richards v. Lady Bergaveny, 2 Vernon, 324, it is said that a devise to a man, and the heir of his body, though in the singular, or to the issue of his body, is an estate-tail.” The same principle is entertained in Pansey v. Lowball, Styles, 249 : 2 Roll. 194 ; Whiting v. Wilkins, 1 Bulstrode, 219 ; Miller v. Seagrave, Roberts’ Gavelkind, 96.

Third : The devise over to the children of Ish and Cassell, in equal shares, is adverted to, as giving character to the limitation to the heirs of Christian. It is urged, that since the testator has manifested his intention to give the estate to his sisters’ children, in the event of a want of heirs of Christian’s body, it implies a corresponding intention of selecting Christian’s children as the object of his bounty, and that the phrase “ heirs of his body ” is used by him to designate them as persons, and not to define their ancestor’s estate. If the phrase used were children, instead of heirs, and the terms of limitation had been to A for life, remainder to his children and their heirs, and in default of A’s issue, a limitation over, the children of A would take a contingent remainder, as purchasers, and if the contingency of the last limitation were not too remote, the objects of the last limitation would take a second contingent remainder. Goodright v. Dunham, Doug. 264. But a devise to A for life, and “ if he die without issue,” or without leaving Issue,” or, in default of issue,” then over, has been repeatedly held to be controlled by the Shelley rule, and the estate of A would be not for life, but of inheritance. Sylvester v. Wilson, 2 Term R. 444. Earth v. Baldwin, 2 Ves., jun., 646. *Doe v. Smith, [473 7 Term R. 531. Bennett v. Earl of Tankerville, 19 Ves., jun., 170.

Fourth: The expressed intention of the testator, that if Christian die without heirs of his body, the estate shall then vest in his sisters’ children, does not exempt the devise from the operation of the rule, or render Christian’s estate for life only. In Doe v. Goldsmith, 7 Taunt. 209, where the terms of limitation were ‘to A for life, and to the heirs of his body, in such shares as he shall appoint, and in default of such heirs of his body, then, from and immediately after his decease,” over, the estate of A was adjudged an estate-tail.

Fifth : We are not able to infer any modification of the rule, from the change of tenure, which our statute of entailments has made. Swan’s Stat. 319. The statute prescribes the manner of holding, not the rule of transmitting, lands, and, in our opinion, offers no means to explain the donor’s intention.

The objections, therefore, to the application of the Shelley rule, appear to us to be overruled, chiefly by positive decisions ; and those terms of the will which give the property to Christian, and to the heirs of his body, create in him an estate-tail. In expressing this result, I am laying out of view, for the present, those expressions in the will which are relied upon to enlarge Christian’s estate to a fee si mple. The consequence of this opinion, upon the land, is to vest in the heirs of Christian’s body, on his death, an absolute fee, by the operation of our statute of entailments. But the will gives to Christian the entire property of the personalty; for estates-tail exist in lands only, (Blk. Com. 398) and the property can not pass by way of remainder, for the same words of the same sentence of the same bequest, conveying property of both classes, will not receive different meanings from the court. Attorney General v. Hall, Fitzgibbon, 314. The application, therefore, of William and Flora King, to obtain a transfer of the bank stock, will not be sustained.

To determine the right of the administrator to sell the land for debts, it becomes necessary to examine the nature of Christian King’s 474] interest yet further. We find the testator, by the *will, gives Christian “ all his property,” to be used by him without any reservation, while he lives.” But in his further dispositions, he only bequeaths the property which might be considered mine, and of which the said Christian may be seized at the time of his decease.” We have here no artificial or arbitrary rules of construction to guide us to the testator’s meaning, and we are at no loss to discover that it was his actual intention to confer upon Christian the absolute power of disposition while he lived, and that he intended the secondary limitations to operate upon those portions of his estate, only, which the first object of his bounty had chosen to leave untouched. But where the entire dominion of an estate is given, a power to alien and dispose, as well as a power to consume or use, it implies 'the absolute property. The law does not permit the donor to annex inconsistent conditions, but such restraints are repugnant and void. Co. Lit. 223 ; 2 Preston’s Est. 3 : 1 Hilliard’s Abr. 30. Attorney General v. Hall, Fitzg. 114 ; 5 Mass. 504; 2 Hilliard’s Abr. 7. This principle seems decisive of the present case. The estate of Christian King is a fee, and the limitations over are void. The subsequent limitations are not defeated, because the estate in fee is first given expressly, and not by implieacation ; but because, where the absolute dominion has once been conferred, cither expressly or by implication, all attempts to restrain its exercise, are repugnant, and can not be sustained.

The administrator may take a decree upon these principles.

Decree accordingly.  