This case was argued and decided by the court at the June term 1840, and it was not, as the counsel for the appellee is. informed, until the present term that the motion for re-argu-. ment was made by the appellant.
After the decision, the counsel for the appellee instructed his client to file in the Orphans Court of Charles county, a copy of the judgment of affirmance, and demand his share of' the property bequeathed; this the counsel is informed has been done, and that the Bealls have received their portions of property graduated by the decision of this court at the June term, and have given their several receipts for the same. Steps have also been taken founded upon this decision by the trustee of one of the Latimers, (heirs under the will) to distribute his property, as an insolvent debtor, with a reference to that decision. Whether the Latimer’s property has been actually so distributed, the counsel for the appellee has not been distinctly informed — it is probable that such distribution has not been made.
The counsel for the appellee regards the motion for a re-argument as somewhat in the nature of an application for a new trial; but he is not apprised that any new arguments have been advanced, or new authorities quoted, to prove an error in the former decision of the Court of Appeals. Under this impression he considers the privilege of re-argument extended by the court to the appellants, as resulting ex gratia, rather than evincing any intervening doubt of the propriety of their decision. In this view he is compelled to repeat to the court the course of argument originally pursued by him.
The first point of the appellant’s argument is erroneous. [133]*133It supposes that if Ford had died intestate, the division of his property, as regards the legatees in the will, would have been per capita. It is admitted that Penelope Beall is alive, and that Mrs. Jinn Latimer was dead at the time of the death of the testator. In such case had he died intestate, it is evident that Mrs. Latimer’s children would have only received the mother’s share of the property,- — -taking per stirpes and not per capita.
The second point rests upon a case not presented by the record, of a bequest to “relations” and “family” generally, and even admitting the law as therein stated, it affords no rule of construction to the present case.
It is argued by the appellant’s counsel that the “language of the testator” is that the residue of his real and personal estate shall be “equally divided between the children of two of his sisters and their heirs forever,” and from such language the intention assumed by the appellants is inferred. No such language can be found in the will — and the quotation destroys distinctions and divisions in the phraseology of the bequest, which the appellee deems essential to its proper construction. But without particular reference to the appellants’ arguments, the appellee begs leave to state to the court upon what grounds they claim the continued sanction of the opinion delivered at the June term.
Starting with the acknowledged position, that the rule of construction of wills is “the intention of the testator,” (that intention violating no moral or established legal principle) and that the “nature of the estate passed by the will shall be determined from the face of the will alone,” it is evident that each will almost necessarily presents an original case, — since the intention, which is the rule, being only deducible from that will, no other will can in the nature of things supply that rule, and consequently other cases of authority can only be brought to bear in establishing the proper construction, in so much as such cases have given a legal solemnity and technicality of meaning to similar terms or expressions used, in the will which happens to be the subject of adjudication.
[134]*134In this view of the case, the authorities cited by the appellants’ counsel, are only formidable when they arise from cases similar to that now presented.
The counsel for the appellee respectfully contends, that none of the cases cited are characterized by terms of material import, such as occur in the will before the court.
The bequest in question is in the following words: — “The residue of my estate, real and personal, to be equally divided between the children of my sister Ann Latimer and their heirs forever, and the children of my sister Penelope Beall and their heirs forever.”
The court will perceive, that both real and personal property are the subjects of this claim. Most of the cases cited are confined to bequests of personal property, overlooking the fact, which we deem important, that real estate was devised by this will.
We do not mean to contend, that the rule of construction is affected by the fact of real estate being devised in the same clause with a bequest of personal property, but that in the present case it forms a material circumstance from which to deduce the intention of the testator.
t The word heirs, in a will, was formerly necessary to give effect to a fee-simple devise of real property; without them or equivalent terms, the devise was only for life, and although by Statute of Maryland this necessity is removed, yet when the word is used in a will, it must be taken with reference to the sense in which it is generally applied.
It is evident, from the terms as here used, that the intention of the testator was to give to the children of Ann Latimer, in the first division of the clause, a fee simple estate in the land devised, and it is further apparent, that if the latter clause of devise to the children of Penelope Beall was erased from the will, the intent would still be complete and perfect. In no case could they take more than a moiety, and the clause of devise to Penelope Beall’s[heirs is not necessary, to designate either what share Ann Latimer’s children take, or what quantity of estate,. The interests are distinct and independent, not [135]*135mingled or in common. If the testator did not intend to separate the interests, why disjoin the clauses under which they take; why not give it generally to the two classes of children and their heirs in common.
There is no reason either in law or the customary usage of phrase, thus to divide the interests, unless it was attended, that in fact they should be so distinct and separate.
We contend, then, that deducing the intention from the face of the will, it is evident that the testator did not contemplate the two clases of children “and their heirs forever,” common participators in his bounty, but as far as language could convey his meaning, he proposed to divide them into two distinct classes of heirs, to each of which was assigned its proportionate part, entirely independent of the other.
The order of the words used is an important rule of construction in arriving at the intention of the testator, and no words are to be rejected which would aid the court in asserting that intention. 19 Vesey, 654.
Too much stress, it seems to us, is laid upon the general current of authorities quoted by the appellants’ counsel, establishing the principle as a general rule, that the words “children” “descendants,” “issue,” designate a per capita distribution.
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This case was argued and decided by the court at the June term 1840, and it was not, as the counsel for the appellee is. informed, until the present term that the motion for re-argu-. ment was made by the appellant.
After the decision, the counsel for the appellee instructed his client to file in the Orphans Court of Charles county, a copy of the judgment of affirmance, and demand his share of' the property bequeathed; this the counsel is informed has been done, and that the Bealls have received their portions of property graduated by the decision of this court at the June term, and have given their several receipts for the same. Steps have also been taken founded upon this decision by the trustee of one of the Latimers, (heirs under the will) to distribute his property, as an insolvent debtor, with a reference to that decision. Whether the Latimer’s property has been actually so distributed, the counsel for the appellee has not been distinctly informed — it is probable that such distribution has not been made.
The counsel for the appellee regards the motion for a re-argument as somewhat in the nature of an application for a new trial; but he is not apprised that any new arguments have been advanced, or new authorities quoted, to prove an error in the former decision of the Court of Appeals. Under this impression he considers the privilege of re-argument extended by the court to the appellants, as resulting ex gratia, rather than evincing any intervening doubt of the propriety of their decision. In this view he is compelled to repeat to the court the course of argument originally pursued by him.
The first point of the appellant’s argument is erroneous. [133]*133It supposes that if Ford had died intestate, the division of his property, as regards the legatees in the will, would have been per capita. It is admitted that Penelope Beall is alive, and that Mrs. Jinn Latimer was dead at the time of the death of the testator. In such case had he died intestate, it is evident that Mrs. Latimer’s children would have only received the mother’s share of the property,- — -taking per stirpes and not per capita.
The second point rests upon a case not presented by the record, of a bequest to “relations” and “family” generally, and even admitting the law as therein stated, it affords no rule of construction to the present case.
It is argued by the appellant’s counsel that the “language of the testator” is that the residue of his real and personal estate shall be “equally divided between the children of two of his sisters and their heirs forever,” and from such language the intention assumed by the appellants is inferred. No such language can be found in the will — and the quotation destroys distinctions and divisions in the phraseology of the bequest, which the appellee deems essential to its proper construction. But without particular reference to the appellants’ arguments, the appellee begs leave to state to the court upon what grounds they claim the continued sanction of the opinion delivered at the June term.
Starting with the acknowledged position, that the rule of construction of wills is “the intention of the testator,” (that intention violating no moral or established legal principle) and that the “nature of the estate passed by the will shall be determined from the face of the will alone,” it is evident that each will almost necessarily presents an original case, — since the intention, which is the rule, being only deducible from that will, no other will can in the nature of things supply that rule, and consequently other cases of authority can only be brought to bear in establishing the proper construction, in so much as such cases have given a legal solemnity and technicality of meaning to similar terms or expressions used, in the will which happens to be the subject of adjudication.
[134]*134In this view of the case, the authorities cited by the appellants’ counsel, are only formidable when they arise from cases similar to that now presented.
The counsel for the appellee respectfully contends, that none of the cases cited are characterized by terms of material import, such as occur in the will before the court.
The bequest in question is in the following words: — “The residue of my estate, real and personal, to be equally divided between the children of my sister Ann Latimer and their heirs forever, and the children of my sister Penelope Beall and their heirs forever.”
The court will perceive, that both real and personal property are the subjects of this claim. Most of the cases cited are confined to bequests of personal property, overlooking the fact, which we deem important, that real estate was devised by this will.
We do not mean to contend, that the rule of construction is affected by the fact of real estate being devised in the same clause with a bequest of personal property, but that in the present case it forms a material circumstance from which to deduce the intention of the testator.
t The word heirs, in a will, was formerly necessary to give effect to a fee-simple devise of real property; without them or equivalent terms, the devise was only for life, and although by Statute of Maryland this necessity is removed, yet when the word is used in a will, it must be taken with reference to the sense in which it is generally applied.
It is evident, from the terms as here used, that the intention of the testator was to give to the children of Ann Latimer, in the first division of the clause, a fee simple estate in the land devised, and it is further apparent, that if the latter clause of devise to the children of Penelope Beall was erased from the will, the intent would still be complete and perfect. In no case could they take more than a moiety, and the clause of devise to Penelope Beall’s[heirs is not necessary, to designate either what share Ann Latimer’s children take, or what quantity of estate,. The interests are distinct and independent, not [135]*135mingled or in common. If the testator did not intend to separate the interests, why disjoin the clauses under which they take; why not give it generally to the two classes of children and their heirs in common.
There is no reason either in law or the customary usage of phrase, thus to divide the interests, unless it was attended, that in fact they should be so distinct and separate.
We contend, then, that deducing the intention from the face of the will, it is evident that the testator did not contemplate the two clases of children “and their heirs forever,” common participators in his bounty, but as far as language could convey his meaning, he proposed to divide them into two distinct classes of heirs, to each of which was assigned its proportionate part, entirely independent of the other.
The order of the words used is an important rule of construction in arriving at the intention of the testator, and no words are to be rejected which would aid the court in asserting that intention. 19 Vesey, 654.
Too much stress, it seems to us, is laid upon the general current of authorities quoted by the appellants’ counsel, establishing the principle as a general rule, that the words “children” “descendants,” “issue,” designate a per capita distribution. The rule is general — but it only applies to cases where its general description is not negatived by other terms of bequest indicating a different intention. Davenport vs. Hamburg, 3 Vesey, 258. Ward on Leg. 123, 18th Law Library. Wythe vs. Thurlston, Amb. 555.
We contend in this case, that the separation of interests made by the phraseology of the bequest, the moiety of estate or rnterest first conveyed to one class of legatees, before the other is named, — the two classes being perfectly independent of aid from each other to ascartain their respective interests— all go to control the general meaning attached to the word children, as used in the authorities quoted by the appellants.
It is argued by the appellants, that the Bealls cannot take by-representation, as their mother is alive. We do not contend for it. We claim that the word children, as here used, is a [136]*136word of purchase, — a designation of a class, not as establishing relationship, — a term used by the testator as distinguishing those whom he meant to partake of his bounty, — < that they do take in their own right under the will, and that this term may be used in the distinct limited, sense that we attach to it. Ward on Legacies, 18 Law Library, 123. Pow. on Devises, 22 Law Library, 175.
The court will perceive, that in nearly every case cited by the appellants, a joint property is in terms given, before the division or degrees of interests is specified. Thus in 1st Merival, Dyer vs. Dyer, 414, cited by the appellants, the bequest is “to Edward North’s children and Ann Price’s children,” “to be equally divided between them.” The interest first conveyed is joint,- and the words subsequently used dcr - not sever it.-
Such will be generally found the terms of bequest in the' other cases cited — =all clearly conveying a joint interest to the parties to take.
In the case at bar no joint estate is given, but each class of children takes its share entire and independent of the other* No terms of joint interest are used, either to characterise the estate conveyed in the bequest, or in the interests conferred • by it.
In case of Maddox vs. The State, 4 Harr. & John, 539, is-much relied on by the appellants. The appellee conceives it is equally liable to the objections urged to the applicability of the other authorities cited by the appellant,- to the case before the court. The clause of bequest in that case, was not distinguished by the distinct separation of classes which occurs here. The terms are,- “to be equally divided between my brothers Justinian and my brother George’s children;” the parties to take are there connected by the copulative conjunction, and no such distinction is drawn, between the interests'of the parties there, as in this case; and if the term “heirs”' had been used, it would have been the common heirs of both* Here the distinct fee-simple interest in half the property is given to- the heirs of Ann Latimer, and there an equally dis[137]*137tinct fee-simple interest in the other half of the heirs of Penelope Beall.
The question here involved does not appear to have been argued in Maddox vs. The State. Stone for the appellant only urged two points: 1st. That the bond upon which the action was brought was about twelve years standing. 2nd. That the parties for whom the action iá brought, claiming under different rights, could not be joined in the same action.
Although the court concur in the several opinions of the court below, the point which the court seems to have decided was, that limitations to be availed of, must be pleaded.
So that if the court should deem this to he in some measure a precedent decision, it does not seem to the appellee to have been of that deliberate character as distinctly to settle the sole issue here made.
The court refused to open the judgment.
JUDGMENT AFFIRMED»