Tilghman C. J.
The question in this case arises on the will of Theodoras Lord. What estate was given to the testator’s daughter Mary, and grand-daughter Eleanor, and what to Daniel Williams, under whom the plaintiff claims ? In order to support the title of the plaintiff, it must be shewn, that Daniel Williams took a vested remainder in fee. We must endeavour to ascertain the intention of the testator ; and that being done, it, will only remain to consider, whether the intention be consistent with law. But the intention is to be made out, not by conjecture, but from the words of the will; and if the testator makes use of words, which have already received a legal construction, the Court must give them that construction, unless he has plainly shewn that he meant to use them in another sense. .In oi'der to come at the intent, in this case, several clauses of this will are to be adverted to, and I think, it will appear that there was one main intent, which is preserved through every part, though not always with equal clearness. The testator sets out with devising the land in question, “ to his daughter Mary, and granddaughter Eleanor Lord, to hold to them and the survivor of [477]*477them, and to their lawful issue, for ever, share and share alike, in two equal shares.”' Here is a plain intent to provide' for each devisee, and her issue, for ever; that is to say, as long as issue should remain, which might possibly be for ever. The intent is equally plain too, that the issue of each devisee should take through the ancestor, by descent, and not with the ancestor, by purchase, because the land is to be divided into but two parts ; whereas, if even all the children of the daughter and grand-daughter were to take as purchasers, with their parents, it might be necessary to divide it into many parts: and also because there is no mode, but by descent, in which the estate can be secured to the issue indefinitely. Now this intention of giving to the parents first, and then to the issue as long as issue should remain, is an intent to give an estate tail; and, in fact, the words here used, have received a well settled, legal construction, according with the testator’s intent. That a devise to A. and his issue, (no issue being bora at the time of the devise) gives an estate tail to A, was decided in Wilds’ case, 6 Co. 17. The same construction was put on similar words, in Lovelace v. Lovelace, Cro. El. 40. A devise “ to one and his issue male,” no issue being then born, held that the devisee took an estate in tail male; and these decisions have never been questioned. The testator then proceeded as follows. “ And my further will is, that if either my said daughter, or grand-daughter, die without leaving lawful issue of their bodies, then I give my aforesaid plantation to the survivor and her lawful issue, for ever; but if both my said daughter and grand-daughter die, without having lawful issue of their bodies, then I do give and bequeath my aforesaid plantation to my loving friend Daniel Williams, to hold to him, his heirs and assigns, for ever.” The testator, in this clause, preserves the same intent of giving a moiety to each devisee and her issue, for ever; with this addition, that if either should die without issue, her share should go to the other and her issue. The expressions, without leaving issue, have been relied on by the defendant, as shewing an intention confined to issue living at the time of the death of the daughter, or grand-daughter. But I cannot think so : whenever the issue is extinct, though after many generations, the original devisor is said, in law, to be dead without leaving issue. These words, without leaving issue, applied to personal estate, have been held to mean is[478]*478sue living at the death of the person to whom the property is given in the first instance. But not so with regard to land. This is the distinction taken in the case of Forth v. Chapman, (1 P. Wms. 667.) and it is well founded, because it carries into effect the intention of the testator. It would answer no purpose to understand issue indefinitely, in the case of personal property, because the law would not permit that issue to take. But it answers the best purpose in case of real property, because the issue may take accordingly. I take it to be established, that the words.without leaving issue, applied to real property, are to be understood issue indefinitely, unless there be some other words shewing an intent to restrict them to the time of the death of the first taker. For this position, I refer to Fearne, on contingent remainders and executory devises, 476 to 479, (6th edit, by Butler,) S Call. 348. 8 Mass. Rep. 3. Hawley v. Northampton. Forth v. Chapman seems to have passed through the fire, and come out pure. Another objection to an indefinite failure of issue, being intended, in the case before us, is drawn from the term survivor, “ to the survivor and her lawful issue.” I understand it thus: — if either daughter, or grand-daughter die without lawful issue,- (indefinitely,) then I give it to the other, whether she or any of her issue be then living; this gives full effect to the testator’s meaning, and is supported by good authority. Chadock v. Cowley, Cro. Jac. 695. “ Devise of land, “ to my son A, and his heirs forever, and of other land, to “ my son B, and his heirs forever; and I will, that the sur- “ vivor shall be heir to the other, if either of them die without “ issue.” Held, that A and B, took estates tail with cross remainders to each. The same point will be found in Fearne, 474, (note by Butler.)
But, to return to the will of Theodorus Lord. The devise to Daniel Williams, “ in case both daughter and “ grand-daughter die, without leaving lawful issue of their “bodies,” is in perfect accordance with the intention of an estate tail to daughter and grand-daughter, and cross remainders in tail to each. Daniel Williams was the last object of the testator’s bounty; having provided for child and grand-child, and their issue, as long as issue should exist, there was no further occasion to tie up the estate, by an entail, and accordingly the expressions are immediately. varied, and instead of issue, the land is given “ to Daniel [479]*479" Williams, to hold to bina, his heirs and assigns forever.” The testator, though no lawyer, understood how to give an estate in fee simple, and the difference of expression, in the devises to Williams, and those preceding, is demonstrative of a different intent; of an intent, not to give a fee simple to the daughter or grand daughter, or their posterity. The testator then proceeds to give a power to his friend Williams, and daughter Mary, to sell the estate and convert it into money, in case they should think it more for the advantage of the daughter and grand-daughter, to receive the interest of the money, than the rent of the land. This power is said, by the defendants, to be inconsistent with an estate tail. Not at all. It is collateral to the estate tail, but not inconsistent. The testator had a right to give an estate tail, subject to be defeated by this power. He then goes on to provide for the disposition of the money, in case of a sale ; and here again, he reiterates his first intent; he declares, that he meant to dispose of the money, in the same manner that he had given the land ; that is to say, he directs it to be put out at interest, and gives, not the principal, hut “ one-half of the “ interest, to his daughter Mary and her issue, and the other “ half to his grand-daughter and her issue, and to hold to “ the survivor of them and her lawful issue, forever; but if “ both daughter and grand-daughter should die without law- “ ful issue, then the money arising from the sale of the said “ plantation, to go to his loving friend, the said Daniel Wil- “ Hams, and his heirs forever.” The same distinction is kept up; the principal to be locked up, for the benefit of the daughter and grand-daughter and their issue, indefinitely, with cross remainders to each, but failing the issue of both, the principal to go to Daniel Williams at once. And yet the defendants contend, that this bequest of the interest of the money shews an intent to give the land to the issue of the daughter and grand-daughter in fee. Their argument is as follows The money is given, as the land was given; but the law would not permit a bequest of money to Daniel Williams, after an indefinite failure of issue in the first taker, and this point of law the testator must have known; therefore he never intended to give an estate tail in this land, to his daughter and grand-daughter, but only an estate for life to each, with remainders to their issue respectively in fee, with an executory devise to Daniel Williams, in case both daugh[480]*480ter and grand-daughter should die, without either of them having left issue living at the time of her death. The fallacy °f the argument is apparent. It is assumed, that the testator knew, he could not entail money, in the very face of his own assertion, that he intended to entail it, for he gives it by proper words of entail, (to them and their issue.) He might well mistake the law ; for there is nothing in the nature of money, which prevents it, when put out at interest, from being preserved for the issue, ad infinitum. It is only the policy of the law, which forbids it.
Having given my idea, of what the testator intended, it may be worth while to take a view of his intention, as exhibited by the defendants. They say, that he intended to give his daughter and grand-daughter an estate for life, with remainder in fee, to the issue of each; and that Daniel Williams took a contingent interest, (by way of executory devise,) not to take effect, unless both daughter and grand-daughter died, without either leaving issue living at the time of her death. Suppose, then, the daughter to have issue, and die leaving issue, and the grand-daughter surviving her; and then, the issue of the daughter to die, the grand-daughter still living, and afterwards she dies without issue. Here is the event provided for by the testator. Both daughter and grand-daughter ■ are dead, and have left no issue. In this case, the estate ought to go to Daniel Williams. No, say the defendants, he cannot take, because, when the daughter died, she left issue, and although that issue be now dead, Williams is precluded. What is this but to defeat the will of the testator ? But this is not the worst of it. In the case which I have supposed, the grand-daughter, who had survived the daughter and the issue of the daughter, could not take the daughter’s share under the defendant’s construction, because the issue of the daughter took an estate in fee. I confess, this appears to me, to be destroying the intention, instead of carrying it into effect. And what makes such construction , less allowable is, that there is not. a word in the will, giving .an estate for life to the daughter and grand-daughter, with remainder to their issue. On the contrary, the expressions throughout, are to them and their issue. In • short, the basis of this construction is an assumed intent, not appearing in any words of the will. Upon the whole it appears, that the testator intended to give estates tail, in possession, to Mary [481]*481and Eleanor Lord, with vested cross remainders in tail to each, and a vested remainder in fee to Daniel Williams.' There is no principle of law, in opposition to this intent, and I am, therefore, of opinion, that under the facts stated, the estates tail having become extinct, Daniel Williams was entitled to the fee. Judgment shóuld, therefore, be entered for the plaintiff.
Qibson J. was absent.
Duncan J.
To form a judgment on this will, it is only necessary to ascertain the plain common sense intention of the testator. There is no conflict between particular and general intention; between the intention of the testator, and some unbending rule of construction. There are two general intents manifested by apt words. The first is, to give an estate to his grand-daughter, Eleanor Lord, and her issue, in one moiety, and to his daughter, Mary Lord, and her issue, in the other moiety; securing to the survivor and her issue the whole, in case of the death of either without issue, to preserve a succession to the issue, from generation to generation, forever. The second is, when the whole generation of the daughter and grand-daughter become extinct, the whole and entire estate shall go over to Daniel Williams and his heirs. There is no other construction which will effectuate this general intent, but this one. In what manner then is this to be effected, consistently with the rules of law ? By giving to the first takers, Eleanor and Mary Lord, estates tail, with vested cross remainders in tail to the issue, with a remainder, when their estates are spent,‘to Daniel Williams and his heirs. I do not design to enter into a critical examination of all the cases which the learning and research of the counsel have brought into the field, nor attempt to reconcile decisions apparently clashing; as this would be composing a treatise on the abstruse doctrines of devises, instead of delivering an opinion on this will; but shall rest satisfied with stating certain undeniable principles, and apply them as rules of construction and of property, to the case under consideration: admitting, in the most explicit terms, that where a set form of words, regulating the disposition and descent of estates, have a meaning fixed to them by a uniform series of decisions, it is the duty of Courts to adhere to that construction as a rule [482]*482of property; but granting, in terms equally explicit, that where such words are accompanied by other expressions bi the testator, shewing that he did not mean to use them in the manner that technical language would import, but in some manner explained by himself; that that explanation shall prevail over the legal meaning assigned to particular words, and govern the construction. Legal words are to be taken in a legal sense, unless there be a demonstration plain, to use them in a different sense; not saying so in express terms, but by plain expression or necessary implication of his intent, which is the same thing, from words or circumstances which vary the case. In this course there is security afforded to men’s possessions, while at the same time all proper indulgence is granted to the manifest intention of the testator. But so long as estates tail remain recognised by our laws, they must remain subject to the established rules of estates tail, and these rules ought not to be departed from by Courts, whatever speculative opinions Judges may entertain of their policy or expediency; for if rights were to be decided on siich motives, there would be an end to all security of property; and the indulgence of such speculations would increase the evil they were intended to prevent, locking up all property and creating perpetuities of the most pernicious kind ; for no prudent man would purchase, if he were to hold his property by such precarious tenure.
The word issue, is the important word in this will. The issues of Eleanor Lord and Mary Lord, were constantly in the contemplation of the testator, in declaring in what manner his estate should go after his death. He has used it not less than seven times. Has he used it as conveying the sense of indefinite issue, or as describing particular persons existing at particular times ? If he has used it in the former sense, by making Eleanor Lord and Mary Lord the stocks of succession to future generations, including their whole posterity, all the heirs of their bodies, then it is an estate tail in the stock, the ancestors, and a remainder in tail to the issue, as' branches from that stock; and the remainder over to Daniel Williams, and his heirs, takes effect after their indefinite failure; which has taken place; but if the remainder over was to take effect only on a limited contingency, viz., the death of the survivor without issue living at the time of her death, as the event did not happen, it does not take effect.
[483]*483The devise is to Mary Lord and Eleanor Lord, of the plantation whereon he lived, to hold to them, and the survivors of them, and to their lawful issue for ever, share and share alike. Let us consider this devising clause, before we consider the remainder over to Daniel Williams. The word issue, in a will, is a word of limitation, or of purchase, as may best serve the intention of the testator. But where it is used without explanatory words, of-itself, it is a word of limitation,'to be taken as nomen collectivum, taking in all issues to the utmost extent of the families, equally with heirs of the body;- and then, the word is as proper a word of limitation, as heirs of the body. By this sentence then, there is a clear limitation in tail, of equal moieties to Eleanor and to Mary, “ to hold to the survivor and their lawful issue for ever.” I cannot doubt, but that cross remainders to the issue, which are favoured if between two only, arise by necessary implication; because it is the evident intention of the testator, that the whole estate should remain in the issue of the first taker, so long as there were any such, and that when the remainder should vest in possession in Daniel Williams and his heirs, it should not vest in parcels, but go over entire, and at one time. • A devise to one and his lawful issue for ever, is a clear estate tail. For ever, is implied in every estate tail; which is an estate of inheritance, descending according to the will of the donor, and in contemplation of law, may continue for ever, as much as a grant to one and his heirs, implies for ever. These partial estates of inheritance, thus carved out of the general estate by the testator, it cannot be supposed, that he, who had with so much care, secured the interest of the issues of both, when he came to make an ultimate disposition of his estate to Daniel Williams, a stranger to his blood, intended to change and alter the limitations before expressly made. To alter and enlarge this limitation to the issue, some stronger and more unequivocal expression of intention would be required than the words, “ if my daughter Mary or grand-daughter Ellen, should die without leaving issue,” giving these words the utmost latitude, that any judicial decision has given them, or even any solitary or obiter opinion. In the devises of real estate, they do not, ex vi termini, mean a dying without issue living at the death of the first taker. These words, with other explanatory words, tantamount to such [484]*484meaning, may have been so construed, to preserve an es» tate expressly given, to prevent the destruction of an executory devise, as being too remote after an indefinite failure of' issue, where there has béen a first devise in fee, of real estate; or where there has been'a bequest of personal property, which, in the case of a devise of real estate, would give an estate tail, by giving them this meaning, to effectuate the intention of the testator. But in the case of a devise of land, creating an estate tail, there must be some more circumscribed clause in the will, other than the words, dying without leaving issue, denoting an intention to confine the remainder over to a dying without issue then living, before the devise to issue, with remainder over, can be restrained. It must then appear, from the whole context of the will, that the testator intended them in a contracted sense. But where, as in this case, there is a devise creating an express estate tail, including- and providing for all the issue, to enlarge the estate into a fee simple, would be violating the legal meaning of the words, not for the purpose of effectuating the general intent of the testator, of preserving an estate which he has expressly given, but for the purpose of violating that intent; destroying the estate of the' issue, who appear to have been the peculiar objects of the testator’s care, upon an implication • not necessary, but so doubtful and obscure, that the counsel of the defendants cannot fix any precise meaning to this supposed implication. For if, as is contended by them, an estate in fee, in the first taker, is created, then the devise to the issue is destroyed. Or if, as is again contended by them, an estate tail in the first taker, is converted into a fee simple in the survivor, on the death of one of them, without issue living at her death, the right of the issue of the survivor in that part is extinguished. For if it be true, that if Eleanor never had issue, or having issue, such issue had died in the lifetime of Mary, that Mary would have taken the moiety not under the will, not as an estate transmitted by the will, but as heir at law of Eleanor ; the issue of Mary, would, in that part at least, have been defeated. Thus breaking the thread which connected the parts of Eleanor and Mary, and the line of descent, as directed by the testator, putting out of joint the plan and whole system of the will. But this would not be the only [485]*485consequence of this construction. For if Mary held a part in fee simple, as heir of Eleanor, and a part as tenant in tail, under the will, I cannot see hoy? in any possible event, Daniel Williams and- his heirs could receive any benefit under this will. For it is certain, that if Mary held Eleanor’s part, not by any limitation of the will, but as her heir, then she held it discharged from any subsequent remainder, to Williams; and in that event, if both had died, never having had issue, Williams could not have taken that part; and it is equally certain, that he could not take Mary’s. For if all the estate went over to him, it must go entire. He must take the whole or nothing. But if the estate' of Eleanor was converted into a fee simple in Mary, it must likewise have converted Mary’s own part into a fee simple, to preserve the unity of estate intended by the testator; and thus the estate of the issue of Mary, the survivor, would have been destroyed in the whole ; contrary to the express words of the will. But a still farther consequence would arise from this construction. Both these ladies would not die at the same instant. One must have survived the other. If Eleanor died without issue living at the time of her death, Mary took in fee, and if Eleanor left, issue living, the issue took in fee; and so of Mary; and. although the survivor never had issue, Daniel Williams and his heirs could take nothing. For, I repeat it, Daniel Williams and his heirs, must either take the whole, or nothing; and this shews the necessity of implying cross remainders ; of considering it as one whole disposition of the estate. The words “ dying without leaving issue,” are equivocal, and may be explained by other parts of the will. The word “ survivor,” cannot have the effect of changing the whole estates devised. To give' it the effect contended for, would be manifestly repugnant. For this very remainder is predicated on the death of the survivor without issue. The disposition does not rest in the survivor., For there is an ultimate disposition to Daniel Williams., So that it still comes back to the inquiry, of the intention of the testator, and of the operatibn of the words, used in one clause of the will, “ and if either of them shall die without leaving issue.” But here it is not a devise to the survivor alone, but to the survivor and the issue of'such survivor; not to the issue then living, but to the issue of the survivor, for ever; which, as clearly as words can express it, devises a continuing estate [486]*486to the issue, as long as there are any, “ for ever;” not a con•fined limitation of the estate, but a general one. “ Issue,” as used in this will, cannot be taken distributively. The issue cannot take as tenants in common; they must take as a generation. Suppose Eleanor to have left issue, a son and a daughter; would the daughter have inherited equally with the son ? If the issue took distributively, as persons designated, and not by way of limitation, then, on a devise to one and his issue, if he had issue living, the ancestor and the issue would take as joint-tenants; as persons described and in existence. At one period, and before it was fully settled, that the word “ issue,” was as proper a word of limitation, as heirs of the body, this was the law. 2 Fonbl. 71. The issue must take by way of remainder; and the devise over is an estate by way of remainder. For it is a settled rule that no devise over, shall be taken as an executory devise, which can take effect as a remainder. 9 Rep. 128. 2 Fonbl. 70. I take it to be settled, as any decision can be, that if lands are devised to one, and if he die before issue, or not leaving-issue, the limitation creates an estate tail.
But the defendants have called, in aid of their construction, the provisions as to the money arising from the sale of the land. 1 draw a different conclusion from the purchase money to be put to interest, and the interest I give in the same manner I have given the plantation in the foregoing part; that is to say, one half to my daughter Mary Lord, and her issue, and the other half to my grand-daughter Eleanor, and her issue, to hold to the survivor of them that has lawful issue, for ever; but if both die, without lawful issue, then I give the money arising from the sale of the aforesaid lands and plantation, to my friend Daniel Williams, and his heirs. A stronger indication of intention could not be, that the daughter and the issue should enjoy the plantation so long as their lives continued to exist, and when they were no more, that Daniel Williams and his heirs were to hold it. Where the interest of money is devised to one for life, and there is a subsequent bequest of the money itself, as distinguished from the interest, it affords strong evidence of intention. Formerly it was held, that where the interest of money, was bequeathed to one for life, and if he should die without issue, the principal to-go over, such limitation was good; Smith v. Clever, 2 Vern. 38. 2 Fearne, 360, yet later cases have exploded this [487]*487distinction. But Fearne considers it still material, as furnishing evidence of intention.
My opinion, therefore, is, that all the issues of Eleanor Lord and Mary Lord, were to inherit the estate, before it went over; and that, to effectuate that intention, Eleanor Lord and Mary Lord took estates tail, with vested cross remainders in tail, to their issues, with a vested remainder in fee, to Daniel Williams and his heirs. This will carry into effect, the whole intention of the testator, and scope of his designs; as to Eleanor Lord and Mary Lord and their issue, and to Daniel Williams and his heirs, preserving whole, the course of descent prescribed by .the testator, until the whole estate vested, by its ultimate destination, in Daniel Williams and his heirs. In confirmation of this,.I have just to add, that the testator, when he intends a fee simple, gives it in appropriate words; as in the first devise to Eleanor, to her and her heirs for ever, and in the last remainder to Daniel Williams, to him and his heirs for ever; and when he intends an estate tail, he uses equally appropriate language'— issue.
Judgment for the plaintiff.
The Reporters have been favoured by the Chief Justice with a copy of the opinion of the High Court of Errors and Appeals, in a case arising upon the construction of a will, delivered on the 25th July, 1807, by the Chief Justice, when President of the Court of Common Pleas of the city and county of Philadelphia.
Tilghman, President. This case arises out of the will and codicil ’of Peter Sheets, deceased. Whether his son, Francis Sheets, also deceased, took an estate in fee simple in the land devised to him, indefeasible on Ids attaining the age of 21, is the question. If he did take such an estate, then the plaintiff, his heir at law, is entitled to recover, if not, the law is with the defendant.
The testator devised to his son Francis, two tracts of land, cc to have and to hold <e the same, to him, and to his heirs and assigns, forever,” subject to the payment of 2300/. which he gave to his son Peter; to be paid as follows, viz. 100/. at the expiration of a year from the testator’s decease; then, the sum of 100/. for three years successively; the next year the sum of 500/.; the next year the sum of 150/.; and then, each year 150/. till the whole should be paid. He also gave the said Francis, •sundry horses, cattle, sheep, implements of husbandry, and articles of household furniture. He gave his wife Catherine, an annuity of 25¿. a-year for her life, to be paid by the said Francis, and charged the same on the lands devised to him. He also devised to his wife, a house and lot for her life, and gave the same, after her death, to his sons Francis and Peter, their heirs and assigns, for ever. After that, comes the following clause/ <e But in case my said son Francis shall die under the (C lawful age of 21 years, or without lawful issue, then, and in that case, I give my íC said son Francis's share in my said whole estate unto my said son Peter, and his cc heirs and assigns for ever» and in case my said son Peter shall die under the law-(i ful age of 21 years, or without lawful issue, as aforesaid, then, and in that case, I
[488]*488<e give and bequeath my said son Peter's share in my said whole estate, unto my . c< said son Francis, and to his heirs and assigns, for ever; but in either case, the sur- « vivor of my said two sons, (Francis and Peter,) shall then pay unto my said t( daughter Elizabeth, (the plaintiff,) or her heirs, the sum of 500Z. but to be taken. (( out of the last payment of ray first mentioned plantation.”
By a codicil, dated two days after the will, et he ordered and particularly re(C quested, and did not allow his said son Francis, to sell any part of the land which ee he had in his said will given to him, until he arrived at the age of SO years, and t( then he might do with the same as he pleased.”
I will first consider the will, unconnected with the codicil, and then examine them together. The first devise to Francis, is a fee simple, expressed as clearly as words can make it, accompanied too, with an obligation to pay large sums of money, which is inconsistent with an intent to give any estate less than a fee simple. Afterwards comes the qualification, that in case he should die under 21, or without issue, then and in that case, the estate should go over to his brother Peter in fee; here is nothing inconsistent with the fee simpleifirst given to Francis. But the question is, how are these last words to be construed ? They contain two contingencies, a dying under 21, and a dying without issue. Must they both concur, before the estate passes to Peter? or may he take on the happening of either. We are not without authorities to assist us in the construction; these expressions have often been used in wills, and often received the consideration of courts of justice. And from the case of Price v. Hunt in the year 1684, Pollexfen, 645, down to that of Hawkesworttfs lessee v. Morgan, determined by the Court of King’s Bench in Ireland, whose judgment was affirmed in 1805, by the British House of Lords, the word or, in cases like the present, has been construed conjunctively $ that is to say, it has been held that the executory devise over, did not take effect, unless the first devisee died under 21, and also, without issue. The same construction was made in this Court, in the case of a deed, in Massey's lessee v. Barde ; and in the Supreme Court, according to one of the cases cited, Cheesemarfs lessee v. Wilt, in case of a rvill. But the defendant’s counsel insist, that wills are not to be construed according to adjudged cases, unless directly in point, that every will depends on its own circumstances, and every will shall be construed so as to carry into effect the intention of the testator, provided such intent be lawful. These principles are sound, and the authorities 1 have mentioned, are founded on them, for, in order to effectuate the intent of the testator, the word or is stripped of its usual disjunctive signification, and converted into a conjunction. Why has this been done ? because, if it was construed disjunctively, the devisee, who was the first object of the testator’s bounty, might die under 21, leaving children, and those children would be deprived of the estate, which would pass over to other persons. It is very natural that a man should give his son an estate in fee, and yet provide that it should go to a third person, in case his son died without issue, and before the age when the law permitted him to dispose of it, cither by contract or by devise; hut that he should give him a fee simple, and then deprive his children of it, because he happened to die before 21, is altogether unnatural and improbable. The cases, therefore, that have been cited on this subject, stand on a foundation not to be shaken. But, granting that those expressions are generally to be construed, as I have mentioned, still it is said, if there are anj .other parts of this will which indicate a contrary intention, the construction may be different; undoubtedly it may. Let us see then what more there is in the will. The defendant’s counsel rely on one fact not mentioned in the will, but found by the first verdict, which may be properly taken into consideration; it is this: — that at the time of making the will, Francis was 20 years and 8 days old; and therefore, it is said, the probability of his having issue before 21, was so small, that his father cannot be supposed to have regarded it. I do not see the force of this argument. It was very possible, and not very improbable, that Francis might marry, and either have issue or have a wife pregnant, in 12 months from his father’s death. We are to construe this will according to the situation of things at the time it rvas made, without taking [489]*489subsequent events into consideration. It is worthy of remark too, that in the last adjudged case which was cited, (Hawlcesworth's lessee v. Morgan, in 1805,) the-first devisee wanted but 15 months of being 21 years old, when the will was made. But no regard was paid to this objection.
Let us now see what effect the codicil will have, considered as connected with the will. Francis, is restrained from selling his land till he attains the age of 30. Whether this restraint on a fee simple estate, is consistent with the principles of law, is immaterial. We are endeavouring to discover the intent of the testator, and it is certain, that he intended to lay the restraint. The defendant’s counsel contend, that the age of 30 is to be substituted for the age of 21, annexed to the devise to Francis, in the will; and then it will stand thus: — In case Francis dies without issue, or before he attains the age of 30, then, in that case, Peter .shall take. Now, in the first place, this is doing violence to the words of the codicil; for Francis was not to be restrained from devising the estate to whomsoever he might think proper, nor from any other act consistent with a fee simple, save the power of selling. The testator must have had some reason for imposing this restraint. The most obvious one js, that he had discovered symptoms of a heedless, extravagant temper in Francis, which made it prudent to put it out of his power to sell, till he arrived at a very mature age; but it might be by no means necessary to debar him of the power of dervising it, in case he died before 30. But there are other parts of the will to be considered, in deciding the effect of this codicil. If Francis had survived the age of 21,* and lived to the age of near 30, and then died, what in the mean time was to be done with the payments of his mother’s annuity, and his brother Peter's legacy; they must have been paid. By the time Francis arrived at the age of 29, he would have paid 1720/. How was he to have raised this money, unless his estate in fee simple had been absolute, on his attaining the age of 21 ? And could the father have intended, that Peter should have received such large sums from his brother, and afterwards have had all the land ? It cannot be supposed. And yet, it is to support an intent of this kind, that the words of the codicil are to be perverted from their natural meaning; whereas, if they are construed according to their obvious sense, all inconveniences are prevented, and the will, and codicil, stand in perfect unison.
Upon the whole of this case, it is the unanimous opinion of the Court, that Francis Sheetz took an estate in fee simple, on the land devised to him, which became absolute when he attained the age of 21 years. Consequently, the plaintiff, who is his sister of the whole blood, and his heir, is entitled to recover in this ejectment.
The judgment of the Supreme Court must be reversed.
Judgment to be entered in this Court for the plaintiff in the ejectment, and the record to be transmitted to the Supreme Court.