Shaw C. J.
delivered the opinion of the Court. The principal question to which the attention of the Court has been called in this case by the course of the argument, arises upon the construction of the residuary clause, in John Holland’s will ; and the question is, who are to take, and what estates respectively, by the terms of that clause in the will.
It may be remarked in the outset, that although the wi„. embraces both real and personal estate, yet it appears bj the facts in the case that there is no real estate, upon which this residuary clause can operate, and that the question actually before us, is only as to the effect of this clause upon personal property.
It is contended on the part of the grandchildren, that the words “ heirs of their bodies,” used in this clause, are not to be taken as words of limitation, qualifying the estate of inheritance given to the sons and daughters, but are here used synonymously with the word “ children,” and so to be considered as descriptio personarum, designating the grandchildren, who are to take portions of this -estate as purchasers.
That words, which in their natural and ordinary signification are words of limitation, may be construed to be words of purchase, there is no doubt ; but this will take place only where it is the clear and manifest intent of the testator, to be ascertained by the qualifying words used in immediate connection with the particular terms, or to be derived from othei parts of the same will. The general rule is, that the intent, as expressed by the will, shall govern ; and to give effect to this rule, the language of the will shall have its natural and technical construction, unless it is obvious that the testator used it in a different sense. And in the latter case, there are scarcely any words, however strong and explicit in themselves, which may not be controlled and limited by such different intent, expressed by the will itself.
So it has been held, that a devise to one and the heirs of her body, under particular circumstances shall be held to make the ht-rs take by purchase. But the circumstances were very peculiar, and the intent of the testator manifest. Doe v. Laming, 2 Burr. 1100.
So it has been held by the highest authority, that a devise [23]*23to the heir ” of one, known to the testator at the time to be living, notwithstanding the well-known maxim, nemo est hones viventis, shall be construed to be “ heir apparent,” and a description of the person, so that the person thus designated shall take by purchase. This however was so held upon clear proof, from other parts of the will, that the testator «.new, that the ancestor of the person named as heir, was .iving and so could not have used the word in its technical sense, and also of an intent that the person designated should ake. Darbison v. Beaumont, 1 P. Wms. 229.
But the Court are all of opinion, that the words, “ heirs of th.j r bodies,” as annexed to the word children in this will, are to be construed as words of limitation and not as words of purchase, because these words, in their ordinary legal import, are words of limitation and not of purchase, and because there is nothing in this will showing an intent on the part of the testator to use them in a different sense, and nothing to show an intent, either in their connection with other words in the sentence in which they were used, or in any words or provisions of the will, that his grandchildren should take originally and in their own right equally with his children, which would be the effect of treating them as purchasers. On the contrary, we think, that by a comparison of different parts of the will with each other, a different intent will be apparent.
This case is extremely distinguishable from that of Annable v. Patch, 3 Pick. 360, cited in the argument. There the words used were “ to my daughter and the children born of her body.” The Court held, that this was a description of persons, who with the mother should take as purchasers. That cause was decided principally upon the authority of Buffar v. Bradford, 2 Atk. 220, in which it was said by the cnancellor, that the word “ children,” in its natural import was a word of purchase ; but the use of the word “ heirs ” would have had a very different construction.
When it is said the intent of the testator is to be a governing rule in the construction of wills, it must be understood to be such an intent as can be carried into effect, according to established rules of law. To apply this remark to this will ; the testator declares that this residue is to go to his [24]*24children and the heirs of their bodies respectively forevei and to none other. Now if it was the intention of the testator, to create a perpetuity in his family and to keep this property in the houses of his lineal descendants, and make it inalienable, it is very clear that such an intent being in violation of the rules of law, cannot be carried into effect. And in the present case, the last words, “ and to none other,” seem to be wholly inoperative and void. The strict question of intent rather seems to be, whom or what persons did the testator intend to make the objects of his bounty, and what quality or species of estate, did he intend to create and vest in them respectively. This being ascertained, in the manner already stated, by the particular language used, qualified and limited by every other part and clause of the will, the law annexes to the estate thus created, the incidents and the character which belong to it. And it will not be presumed that the testator had a different intent from that which the words naturally import, so as "to change the construction of the will, in creating a particular estate, although that estate will be attended by some consequences, which the testator did not anticipate. For instance, if a testator not knowing that an estate tail might be barred by a common recovery, and in our own State by a simple deed, so as to defeat the heirs in tail, should insert a devise in his will, which by law would operate to • create an estate tail, accompanied by ex pressions, showing his expectation that it was to continue in-¡¡enable till his issue were extinct, it would afford no reason for putting a forced construction on the will, and holding it not an estate tail, because his intent to benefit his heirs in tail, in perpetuity, might otherwise be defeated.
Nor is it to be presumed, without satisfactory proof from other parts of the will, that when a testator uses language, which is often used on like occasions, which has been the subject of frequent judicial discussion and exposition and is well understood, he intends to use it in a sense different from that in which it has usually been understood and applied. The clause in question, contains precise, apt and technical language to create an estate tail, and there is nothing in any part of the will, to show that such was not his intent, unless [25]*25it be the words already cited, showing an intent, that the property should continue inalienable in the line of his own family, till extinct ; and this manifests rather an intent to give a certain effect to an estate tail, which the law will not warrant, than an intent not to create an estate tail in his children.
Another construction put upon the will in question and contended for in behalf of the grandchildren is, that it gives the residue to the children for their lives, and afterwards to their children, and so by force of the statute of this commonwealth, St. 1791, c.
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Shaw C. J.
delivered the opinion of the Court. The principal question to which the attention of the Court has been called in this case by the course of the argument, arises upon the construction of the residuary clause, in John Holland’s will ; and the question is, who are to take, and what estates respectively, by the terms of that clause in the will.
It may be remarked in the outset, that although the wi„. embraces both real and personal estate, yet it appears bj the facts in the case that there is no real estate, upon which this residuary clause can operate, and that the question actually before us, is only as to the effect of this clause upon personal property.
It is contended on the part of the grandchildren, that the words “ heirs of their bodies,” used in this clause, are not to be taken as words of limitation, qualifying the estate of inheritance given to the sons and daughters, but are here used synonymously with the word “ children,” and so to be considered as descriptio personarum, designating the grandchildren, who are to take portions of this -estate as purchasers.
That words, which in their natural and ordinary signification are words of limitation, may be construed to be words of purchase, there is no doubt ; but this will take place only where it is the clear and manifest intent of the testator, to be ascertained by the qualifying words used in immediate connection with the particular terms, or to be derived from othei parts of the same will. The general rule is, that the intent, as expressed by the will, shall govern ; and to give effect to this rule, the language of the will shall have its natural and technical construction, unless it is obvious that the testator used it in a different sense. And in the latter case, there are scarcely any words, however strong and explicit in themselves, which may not be controlled and limited by such different intent, expressed by the will itself.
So it has been held, that a devise to one and the heirs of her body, under particular circumstances shall be held to make the ht-rs take by purchase. But the circumstances were very peculiar, and the intent of the testator manifest. Doe v. Laming, 2 Burr. 1100.
So it has been held by the highest authority, that a devise [23]*23to the heir ” of one, known to the testator at the time to be living, notwithstanding the well-known maxim, nemo est hones viventis, shall be construed to be “ heir apparent,” and a description of the person, so that the person thus designated shall take by purchase. This however was so held upon clear proof, from other parts of the will, that the testator «.new, that the ancestor of the person named as heir, was .iving and so could not have used the word in its technical sense, and also of an intent that the person designated should ake. Darbison v. Beaumont, 1 P. Wms. 229.
But the Court are all of opinion, that the words, “ heirs of th.j r bodies,” as annexed to the word children in this will, are to be construed as words of limitation and not as words of purchase, because these words, in their ordinary legal import, are words of limitation and not of purchase, and because there is nothing in this will showing an intent on the part of the testator to use them in a different sense, and nothing to show an intent, either in their connection with other words in the sentence in which they were used, or in any words or provisions of the will, that his grandchildren should take originally and in their own right equally with his children, which would be the effect of treating them as purchasers. On the contrary, we think, that by a comparison of different parts of the will with each other, a different intent will be apparent.
This case is extremely distinguishable from that of Annable v. Patch, 3 Pick. 360, cited in the argument. There the words used were “ to my daughter and the children born of her body.” The Court held, that this was a description of persons, who with the mother should take as purchasers. That cause was decided principally upon the authority of Buffar v. Bradford, 2 Atk. 220, in which it was said by the cnancellor, that the word “ children,” in its natural import was a word of purchase ; but the use of the word “ heirs ” would have had a very different construction.
When it is said the intent of the testator is to be a governing rule in the construction of wills, it must be understood to be such an intent as can be carried into effect, according to established rules of law. To apply this remark to this will ; the testator declares that this residue is to go to his [24]*24children and the heirs of their bodies respectively forevei and to none other. Now if it was the intention of the testator, to create a perpetuity in his family and to keep this property in the houses of his lineal descendants, and make it inalienable, it is very clear that such an intent being in violation of the rules of law, cannot be carried into effect. And in the present case, the last words, “ and to none other,” seem to be wholly inoperative and void. The strict question of intent rather seems to be, whom or what persons did the testator intend to make the objects of his bounty, and what quality or species of estate, did he intend to create and vest in them respectively. This being ascertained, in the manner already stated, by the particular language used, qualified and limited by every other part and clause of the will, the law annexes to the estate thus created, the incidents and the character which belong to it. And it will not be presumed that the testator had a different intent from that which the words naturally import, so as "to change the construction of the will, in creating a particular estate, although that estate will be attended by some consequences, which the testator did not anticipate. For instance, if a testator not knowing that an estate tail might be barred by a common recovery, and in our own State by a simple deed, so as to defeat the heirs in tail, should insert a devise in his will, which by law would operate to • create an estate tail, accompanied by ex pressions, showing his expectation that it was to continue in-¡¡enable till his issue were extinct, it would afford no reason for putting a forced construction on the will, and holding it not an estate tail, because his intent to benefit his heirs in tail, in perpetuity, might otherwise be defeated.
Nor is it to be presumed, without satisfactory proof from other parts of the will, that when a testator uses language, which is often used on like occasions, which has been the subject of frequent judicial discussion and exposition and is well understood, he intends to use it in a sense different from that in which it has usually been understood and applied. The clause in question, contains precise, apt and technical language to create an estate tail, and there is nothing in any part of the will, to show that such was not his intent, unless [25]*25it be the words already cited, showing an intent, that the property should continue inalienable in the line of his own family, till extinct ; and this manifests rather an intent to give a certain effect to an estate tail, which the law will not warrant, than an intent not to create an estate tail in his children.
Another construction put upon the will in question and contended for in behalf of the grandchildren is, that it gives the residue to the children for their lives, and afterwards to their children, and so by force of the statute of this commonwealth, St. 1791, c. 61, § 3, controlling and in effect repealing the rule in Shelley's case, here was but a life estate to the children as first takers, with a remainder in fee to their children. We think it quite impossible to maintain this position ; there are no words, and certainly there is no intimation in this residuary clause, that the property is given to the children for their lives. It is not contended that this is a gift for life expressly, but it is contended that it is so by necessary implication. This brings the case back to the question already discussed, whether the words “ heirs of their bodies ” as here used, are words of limitation or words of purchase ; because all the considerations which go to show that these are used as words of limitation, and do not constitute a descriptio personarum, conclude as strongly against their claiming in the character of remainder-men, as against their claiming in the character of tenants in common, with their parents.
The term 11 heirs of the body,” is a designation strictly technical, and they are words of limitation not confined to children, but include lineal descendants indefinitely. They are then words of inheritance, limiting the descent to a particular class of heirs. Such a limitation constitutes an estate tail in real estate ; and by a well settled rule of law, words which create an estate tail in real estate, will give an absolute interest in personal property.
The construction adopted derives support from other clauses and provisions in the will. The argument is, that by the words “ heirs of the body,” the testator must necessarily have intended children. In one clause he gives real and personal property to his wife for life, with remainder to his five chil[26]*26dren, naming them, share and share alike, “ and to the neirs of their bodies respectively.” This remainder is beyond question an estate tail to the five children as tenants in common in the real estate. In the trust for his daughters, the property is given in trust for each daughter during her life, and at her decease to be divided equally among the heirs of her bf dy, if any, and in default thereof, to her brothers and sister in equal shares and to "their respective heirs. Now here I do not understand, that the testator, by “ heirs of her body,” meant children to the exclusion of issue in a remoter degree ; but if there were grandchildren, it was his intention that they should take the property, in preference to the collateral relations, to whom it was limited. Tne testator may have been mistaken in point of law in supposing that an estate tail might be limited in personal property ; out these provisions manifestly show, that when the testator used these words, he used them in their natural and proper sense, as equivalent to issue, or lineal descendants.indefinitely ; and if they were so used in the clause in question, then it has been already shown that they create an estate tail m the real estate and an absolute gift in the personal property.
Another question considered was, whether, since the youngest of the legatees has come of age, the capital is now to be divided, subject to the charges for securing the annuities to the widow and legatees. That the capital or principal sum was to go to the children, subject to those, charges, and not to be put at interest or retained by the executor as trustee, is manifest, we think, from several clauses in the will.
It is to be observed, that there is no intention manifested on the part of the testator, that the income or profits or improvements of the property should go to the legatees, or any designation of usufruct expressed, as distinct from an absolute and direct gift to them. There are no directions given to invest the amount or place the same at interest, and it would be highly probable that some directions would have been given as to the management of this fund, had it been understood by the testator that it was to remain in the hands ol the executor or other trustees, during the lives of all the children respectivelv.
[27]*27The advance to be made to the daughter out of tne general funds by the executor, in case of her marriage, in anticipation of a division and distribution, shows that the fund itself was to be divided; and the charge of interest on such advance, shows that it was to be divided within some reasonably limited time. But if not to be made, when the youngest of the children should come of age, there was no time fixed ; and if a distribution was not to be made at that time, it is difficult to perceive any good reason, why that time was fixed at all, by the will.
The Court accordingly decreed, that by the will of John Holland, an absolute estate and property in the residuum of the personalty was vested in the children of the testator, and was distributable among them and their legal representatives, when Frederick W. Holland arrived at full age ; that the annuitants and other complainants were entitled to have a fund set apart out of the personalty, to provide for the payment of the annuities or for the purchase of annuities of equal amount, at the option of the annuitants ; and that the widow and other complainants were entitled to have an adequate sum set apart to provide for any insufficiency of the income of the testator’s right in Long Wharf, to make up the annuity bequeathed tr her.