Lessee of Findlay v. Riddle

3 Binn. 139, 1810 Pa. LEXIS 70

• Court: Supreme Court of Pennsylvania
• Decided: October 6, 1810
• Status: Published

Opinion

Yrates J.

The present cause is an appeal from the decision of the Chief Justice, in overruling a motion for anew trial after a verdict found for the plaintiff.

The question rests on the true construction of the will of John Findlay senior, dated 9th August 1783, which was duly proved on the 24th October following. The words are as follow: “ I give and bequeath to my son John Findlay, all u that plantation and tract of land whereon I now dwell, <£ situated &c., with the appurtenances, to hold to him the £‘ said John Findlay, during his natural life; and after my said u son’s decease, if he shall die leaving lawful issue, I give ££ and devise the same plantation and tract of land to his i£ heirs as tenants in common, and their respective heirs and £i assigns for ever. But in case my said son John shall die 5£ without leaving lazvftl issue, I give and devise the same “ plantation and tract of land to my son James Findlay, his il heirs and assigns for ever,” John Findlay the son died in 1801; and the lessors of the plaintiff are his minor children, who sue by their guardian.

One judging of the language of this will unfettered by artificial legal rules, would have little difficulty in pronouncing the intention of the testator to have been, that John the son should enjoy the plantation during his life; and that his children, if he had any, at his death, should hold the same as tenants in common absolutely in fee simple; but if he had none, that then James the other son should hold the premises in fee simple.

The plainest reasons might be given for such an opinion. The father gave the lands to John for life in express terms. He could not mean to intail them; because the unavoidable consequence thereof would be, that unless the intail 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 for ever. It would follow therefore, that if the devise to John was construed to vest an estate tail in him, violence would be done to plain words, and the meaning of the testator be totally disappointed.

But it has been strongly urged by the counsel for the dsr fendant, that the legal operation of the words used by the testator, is too strong for his intention; which is supervened' by rigid and imperious rules established for centuries, and which are esteemed the landmarks of property binding on the consciences of judges.

These objections shall be considered: if they are legitimately valid, it is our duty to bow to them. In the mean while, it becomes necessary to remark, that the intention of the testator has always been deemed the first, great, leading, fundamental rule in the construction of wills. It would be an absurd affectation of adroitness in case-hunting, to multiply authorities on this subject. When it is said, that wills must be consistent with the rules of law, the observation is not to be applied to the construction of words, but to the nature of the estates themselves. 2 Atk. 580. We are often told in our books, there is no magic in any particular form of words. As applied to wills, the remark is peculiarly just. This clearly appears in many familiar instances. To convey an estate in fee simple by deed, the word heirs is an indispensable term of art: so to create an estate tail by deed, words of procreation must be used, as heirs of the body &c. But the law benevolently supposes a testator to be inops consilii, and will carry his intention into effect, if his meaning is plain and perspicuous, though clothed in unapt words. Thus a devise of lands to one for ever, or to do with at his will and pleasure &c., will pass the fee simple. And the terms prof sepiini, issue, or children in a will, will pass a fee tail, where such appears to be the true meaning of the devisor. Reynolds justice asserted a clear truism, when he said, that a man shall be allowed to speak his mind in his will. Fitzgib. 113. The doctrine of the intentions of testators being carried into effect is laid down with great precision by Mr. Butler in his note on Co. Litt. 3T9 a, in these words: “ It is certain, that “ no rule of law has a more ancient origin, or is more gene- “ rally established, than that if a testator expresses his inten- “ tion defectively, either by not using technical and artificial “ terms, or by using them improperly, yet if his intention “ can be collected from his will, the law, however defective “ his language may be, will construe his words according to “ his intention; and if the object of it is warranted by the “ established rules of law and equity, will admit, its full “ operation and effect. It is equally certain on the other hand, “ that if the testator’s intention appears to be to effect that tc which the rules of law and equity do not admit, neither the “ courts of law, nor the courts of equity can allow its opera- <( tion. The first thing therefore, to be ascertained, is, what “ the object of the testator is; the next, whether it is such as “ the rules of law and equity admit.”

I fully agree that the best rule in the construction of wills, is to find out first the general intent, and then as far as language and grammar will admit, to interpret particular expressions accordingly; and that in order to give effect to the general intent, the court will overlook a particular intent inconsistent therewith. Here, though an express estate for life was given to John the son, yet if to effectuate the great general intent, it becomes necessary to construe the devise to him as an estate of inheritance, the law will so construe it; as in the celebrated case of Robinson v. Robinson, 1 Burr. 38. There the special intent was defeated; the first limitation was to Lancelot Hickes for life and no longer. Nothing therefore could be more clear, than that the testator only intended to give him an estate for life; yet seeing that that particular intent was inconsistent with the testator’s general intent, which was that the whole line of male heirs of L. Hickes should take, the court held themselves bound by law to effectuate that general intent, .

The first ground on which it has been contended, that John the devisee took an estate tail, was, that when the" father devised the lands after the decease of John, to his heirs, if he died leaving lawful issue, he thereby meant his issue; and that this is rendered still more clear, from the remainder over being limited to James in fee, in defect of such issue; because John the first taker could not be said to die without heirs, living his brother James. It has been resolved in many cases, that under a devise “ to A and his “ heirs, remainder over for want of such heirs,” to a person who might take the estate as heir, the word heirs is thereby restrained to heirs of the body, and the devisee takes an estate tail. Cowp. 235., 2 Fonbla. 58. Aliter, when the remainder over is limited to a stranger. 1 Roll. Rep. 398., 3 Bulst. 192., 2 Eq. Ab. 305., 1 Vez. 89., 3 Atk. 617., 3 Lev. 70., Cases temp. Talb. 1. — Where one had issue A and B, and devised land “ to A, and if he died without heirs, that B his ' “ brother should have them,” A took an estate tail. Freem. 74., 8 Vin. 219.pl. 9., Willes 165. 370. Sounder a devise “ to R. C. for the term only of his natural life, and after his “ decease to the issue of the said R. C. as tenants in com- “ mon; but in case the said R. C. shall die without leaving “ issue, then a devise of the same to E. FI. in fee;” this is an estate tail in R. C. 1 East 229. The reason is plain. The clear general intent of the testator was, that all the issue of R. C. should inherit the entire estate, before it went over, and that E. H. should take nothing until the issue of R. C. wholly failed. If R. C. was intitled to an estate for life only, his children could take no larger estate, there being no words of limitation of the inheritance to them; and on the decease of any of the children, their shares would devolve on E. FT., while other children of R. C. were living; or even while issue of the deceased child was in full life, which would clearly disappoint the chief intention of the testator. But our principal case is differently circumstanced, by additional super-added words of inheritance to the heirs of John, to them as tenants in common, and their respective heirs and assigns for ever. There is nothing incompatible or inconsistent with the general intent, in declaring, that John should hold the plantation during his life, and his children if he had any, hold the same after his death in fee simple, as tenants in common; but if he had none, that it should go over to James in fee. This materially contradistinguishes the will under consideration, from the cases cited by the defendant’s counsel; in all of which, in order to give effect to the chief intention of the testator, it became indispensably necessary to hold, that the first takers were vested with an estate in fee tail. It seems to me fully to answer them.

But the great reliance of the defendant’s counsel for their construction, is, on what is called the rule in Shelley's case, 1 Co. 104 a., Co. Litt. 376., that “ when the ancestor by any gift “ or conveyance takes an estate of freehold, and in the same w gift or conveyance, an estate is limited either mediately “ or immediately to his heirs in fee or in tail, always in such “ cases, heirs are words of limitation of the estate, and not “ words of purchased'

The existence of this rule is admitted; and so far as respects limitations of legal estates in conveyance by deed, its prescriptive claim to control seems established. Nor is there any difference of opinion as to its giving way to more prevalent principles of construction in marriage articles. But its authoritative controlling force in the construction of wills has led to a controversy, in which We find the most profound abilities anxiously and strenuously opposed. 2 Fonbl. 72.

Different English judges have expressed their opinion on the extent of the rule. We are likewise furnished with the learned observations of Mr. Hargrave, Mr. Butler and Mr. Fearne on its true application. Mr. Hargrave insists, that the rule is a conclusion of law upon certain premises so absolute, as not to leave any thing to intention, if the premises really belong to the case. Hargr. Law Tracts, 561. In such instances, he would apply the rule, even though the party should express in his will, that the rule should not be applied, and that the remainder to the heirs of the tenant for life should operate by purchase; though he admits that this strong sort of case has not yet occurred in a court of justice. Ib. 562. He holds the rule to be a policy of law, and that it is of a quality rigid, stubborn, imperious, irresistible, and so indispensable as to be above all exception whatever; Ib.-, and that firm and immovable in its claim of sole empire, and looking down on private intention as its lawful subject, the rule will neither give nor accept of any terms of Capitulation'. Ib. 574.

Mr. Fearne, whose Treatise on Contingent Remainders was, meant evidently to impugn the opinion of lord Mansfield in Perrbi v. Blake, admits that the zeal of Mr. liar grave had pursued the rule to an inflexible degree of imperative control, which Would hardly be reconcilable with the l'o'ng established principles applicable to the construction of wills, were it not for his resting the admission of the rule on a previous question ieferrible to the testator’s intention. 1 Fearne, 294. 4th ed. Lord Mansfield in Perrin v. Blake, 6 Cruise 389, observes that he always thought, as the law had allowed a free communication of intention to a testator, it would be a strange law to' say, “ now you have commu- “ nicated that intention, so-as every body understands what “ you mean, yet because you have used a certain expression “ of art, we will cross your intention, and give your will a “ different construction; though what you meant to have “ done is perfectly legal, and the only reason for contrave- “ ning you, is because you have not expressed yourself like “ a lawyer.” His examination of the rule always convinced him, that the legal intention, when clearly explained, was to control the legal- sense of a term of art, unWarily used by the testator. He held the rule to be clear law, but that it was not a general proposition subject to no control, as where a testator’s intention was manifestly on the other side, and when the objection's might be answered, Ib. 390. Wilks and Aston, justices, concurred with him in his idea, of the rule, the reason of which was long since antiquated; and therefore it should not be extended orte jot. Ib. 382, 383. But Yates, justice, dissented, and held the rule laid down in Shelley's case, to be a rule of construction in the devise,of a legal estate, binding on judges. Ib. 386.

Sir William Blackstoñe admits, that the rule when applied to devises may give way to the plain and manifest intent of the devisor, provided'that intent be consistent with the great and immutable principles of English legal policy; and provided it be so fully expressed in' the testator’s will, or else rnay be collected from thence by such cogent and demonstrative arguments, as to leave no doubt in'any reasonable min’d., whether it was his intent or not. Harg. Law Tracts 502, 503. But he was far from maintaining, that by a devise to a man’s heirs, or the heirs of his body, they shall never take as purchasers. Ib. 504. They should be so construed, whenever the intent of the testator was clear and manifest. Ib. 507.

Lord Thurlow understood the rule to be, that where the heir took in the character of heir, he must take in the quality of heir. The rule had never been shaken at all, and he had never heard it contended that the testator could vary the sense of the law. Jones v. Morgan, 1 Bro. Ch. Rep. 216., By all the cases, where the estate is so given, that after the limitation to the first taker, it is to go to every person who can claim as heir to the first taker, the word heirs must be a word of limitation. All heirs taking as heirs, must take by descent. Ib. 219. According to Mr. Cox in his note 2. to 1 Pr. Wins. 132., this seems to be the settled law of England.

The rule is agreed on all hands, to be still an unbroken pillar of the feudal system, which cannot be demolished and thrown with the rubbish of the dark ages. 1 Hen. & Mum. 261. The maxim was originally introduced in favour of the lord, to prevent his being deprived of the fruits of the tenure; and likewise for the sake of specialty creditors. The reason of the maxim hath long ceased; because tenures are now abolished, and contingent remainders may be .preserved from being defeated before they come in esse: yet having become a rule of property, it is adhered to in all cases literally within it, although the reason has ceased. But where there are circumstances which take the case out of the letter of this rule, it is departed from in favour of intention, because the reason of the rule has ceased. 2 Burr. 1107.

It has however been strenuously insisted, that where an estate of freehold is limited to the ancestor,, no subsequent limitation to his heirs, or the heirs of his body, can make them purchaser's; Dubber v. Trollope, Ambler. 462.; and that in such case, the inheritance will not go to all the heirs in the course of inheritable succession, unless by an actual descent; consequently if after the first taker, it is to go to every person who can claim as heir to him, the intended succession can only be effectuated by taking the word heirs &c. as words of limitation. If after him, all heirs &c. are to take as such, that is, as answering that description, they can only take by descent. 1 Fearne 309.

Certainly, there are many cases which have been adjudged even at law, wherein the words heirs, and heirs of the body, as well as children, issue &c. have been determined to be words oí purchase, some of which I shall proceed to enumerate.

In Archer’s case, 1 Co. 66., the limitation was to A for life, and after to the next heir male of A, and to the heirs male of the body of such next heir male. The devise to the heir was held to be a remainder by purchase.

In Wild’s case, 6 Co. 17., if a devise be to A and his children, and there be no children then in being, it gives an estate tail; because the devise is in words de presentí, and there being no children in being, they must take by way of limitation. But if a devise be to A, and after his decease, children, A has only an estate for life; because then the fiords plainly shew that the children were intended to take hr of remainder.

In Clarke v. Day, Moor 593., Cro. El. 313.,Ow. 148.,2 Rol. Ab. 417. pl. 7., A devised lands to her daughter for life^nd if she should marry after the death of the testatrix, and have' any heirs lawfully begotten, then she willed that her daughter’s heir should have the land after her daughter’s death, and the heirs of such heir; and adjudged to be an estate for life in the daughter.

James v. Richardson, Pollex. 457., and Burchett v. Durdant, 2 Vent. 311., Carth. 154., arose on the same will. In bqth was held good. causes a devise to the heir male of R. S', now living

Long v. Beaumont, 2 Vern. 735., is cited 1 Pr. Wms. 229. There a devise to the heir male of E. L. lawfully begotten, and for want of such heir, to his own right heirs was held a good devise; although not to the heirs of the body, the description being supplied and made good by other words tantamount.

Wedgward’s case, 1 Rol. Ab. 837. pl. 13., cited by lord Hale in the case of King v. Melting, 1 Vent. 231., was a limitation to one for life, et non aliter; and after his death to the sons of his body. Held that an estate for life only passed.

Lisle v. Gray, 2 Lev. 223., Poll. 582., T. Ray, 278. 302. 315., T. Jo. 114., 2 Show, 6., arose on the effect of a deed as to the legal estate, wherein the words heirs male of the body were held to be words of purchase, by necessary construction arising from the context.

Luddington v. Kime, 1 Salk. 224., 1 Ld. Ray. 203., 3 Lev. 431., has strong features of resemblance to the case now in question. A devised land to B for life, without impeachment of waste, and in case he should have any issue male, then to such issue male, and his heirs for ever. Resolved, that B took an estate for life, and his issue male a contingent remainder in fee.

Backhouse v. Wells, 10 Mod. 181., Fortesc. 139., 1 Equ. Ab. 184. pl. 27., was a devise to J. B. for his life only, and from and after his death to the issue of his body lawfully to be begotten, with remainder to the heirs male of the body of that issue; and adjudged, that J. B. was tenant for life, with remainder to the issue in tail.

The cases of Leonard v. the Earl of Sussex, 2 Vern. 526., The Earl of Stamford v. Sir John Hobart, 1 Bro. Parl. Cases 288., Withers v. Allgood,, cited 2 Ves. 237., Ashton v. Ashton, cited 1 Ves. 149., and Bagshaw v. Spencer, 2 Atk. 570., 1 Ves. 142., might also be adduced to shew the decrees of different chancellors in cases like the present.

Fearne in his Essay on Contingent Remainders, 236, 237, has remarked, that these are all cases of trusts, and no ruling authorities for the construction in cases of legal estates. I shall content myself with citing the words of lord Mansfield in reply. “ A court of equity is as much bound by positive “ rules, and general maxims concerning property, though the “ reason of them may now have ceased, as a court of law is. “ Whatever is sufficient upon a devise, to make an exception “ out of the rule, holds in the case of a legal estate, as well “ as in the case of a trust. If the intention of the testator be “ contrary to the rules of law, it can no more take place in a “ court of equity than in a court of law. If the intention be “ illegal, it is equally void in both.” 2 Burr. 1108. In the case of Bagshaw v. Spencer, all the cases upon this subject Were ransacked and thoroughly considered: and lord Hardwicke held, that heirs of the body, after an estate for life to the father, should be construed words of purchase. He asserted, that a plain intent of the testator would change' those words from terms of limitation to those of purchase; and that lord Talbot had said, the rule of law was not so strict, as to control the testator’s intent, where it was plain. 2 Atk. 582.

In Law v. Davies, Fitzg. 113., 2 Ld. Ray. 1561., 1 Barnard. 238., 2 Stra. 849,, 2 Equ. Ab. 316.pl. 28., there was a devise to B, and his heirs lawfully to be begotten; that is to say, to his first, second, third, and every other son and sons successively lawfully to be begotten of the body of the said B, and the heirs of the body of such first, second, third, and every other son and sons successively &c. remainder over: And it was determined that B took but an estate for life.

In Ginger ex dem. White v. White, Willes 348, there was a devise to A for life, then to the children of A successively and their heirs, and if A died without issue, then to B, son of the elder brother of A in fee: it was held, that A took only an estate for life. It resembles in many particulars the will before us. Lord chief justice Willes strongly insists on the necessity of adhering to the intent and meaning of the testator; and declares, that he would always endeavour, if he possibly could, that the intent of the testator might take effect, and would never take pains to find out little niceties in the law, to defeat the intent of the testator. He laid down the rule of law, that a precedent estate devised by express words, cannot be lessened, increased, or altered by implication, though it might by express words. Lb. 355.

Goodtitle ex dem. Cross v. Woodhull et al. Willes 592., is to the same general effect, and was decided in the same manner.

Doe on the demise of Long v. Laming, 2 Burr. 1100., appears to me a strong modern authority for the plaintiff. It was determined in 1760. It was a devise of gavelkind lands to A and the heirs of her body, lawfully begotten or to be begotten, as well females as males, and to their heirs and assigns for ever, to be divided equally share and share alike, as tenants in common, and not as joint-tenants. And adjudged una voce, that A did not take an estate tail. S. C. 1 Blac. Rep. 265. The reasons of the decision are thus detailed in 1 Fearne 235, 6. The words heirs of the body did not stand independent and unqualified, but were corrected and explained very expressly, by the words which followed and were coupled with them; the words as -wellfemales as males annexed to the,words heirs of the body, were incompatible with and expressly broke the descent; because gavelkind lands could not descend in that manner; and the devise expressly created a tenancy in common, which was' impossible by descent, as that must have been in coparcenary. And besides, there were words of limitation in fee grafted on the words heirs of the body, which- could not have been satisfied by an estate tail in the ancestor.

Gavelkind lands in Kent are equally divided among the sons on the father dying intestate. Litt.S. 210. This custom is in unison with our law; except that females here share equally with males the real estate of their father when he dies intestate. Previous to our act of 19th April 1794 the eldest son ‘took a double share. Now all the above reasons apply to the case under consideration. The word heirs cannot point to the eldest son, but includes all the children of the first taker, as well female as male, which could not be the case if he took an estate tail. They were to hold as tenants in common, which could not be if their ancestor took an estate tail and the sons claimed successively per formam doni, and here are superadded words in fee to the heirs respectively, which are clearly irreconcilable with their father’s taking an estate in tail.

The observations of lord Mansfeld as to gavelkind lands in the case just cited, apply with peculiar force to the equal spirit of our laws regulating the descent of real estate. The term heirs (in the plural) in the case of gavelkind lands, answers to the term heir (in the singular) in the common case of lands which are not gavelkind. For the word heir (in the singular) would not serve for gavelkind lands, it must be heirs (in the plural.) Therefore all the arguments and reasonings that are applicable to the word heir (in the singular) in the common case of lands not being- gavelkind, hold with equal strength and propriety, when applied to the plural termination heirs, when the lands are gavelkind. 2 Burr. 1110; Lord Mansfeld concludes his opinion by saying, that there is no rule of law that prevents heirs staking as purchasers, where the intention of the testator requires that they should ‘ do'so. Denison and Wihnot justices, (Foster being absent) concurred with him in opinion, that the intention of the testator as disclosed in his will must govern its construction, provided the nature of the estate be legal, and the same sentiment is ascribed to lord chief justice Wilmot in Keily v. Taylor reported in 6 Bro. Parl. Ca. 309, as cited by Buller justice in Doe v. Lyde, 1 Term Rep. 597.

This case having been argued before the Chief Justice, when the citing of British authorities subsequent to the American revolution was not prohibited, and considerable stress having been placed during the argument in bank, on the opinion of lord Thurlow in Jones v. Morgan, as summed Up by Cox in his note on 1 Pr. Wms. 132, before cited, I do not deem it incorrect to state, that the opinion of lord Kenyon in Goodtitle v. Herring, 1 East. 272., accords with that of lord Mansfield as to the application of the rule in Shelley’s case, and that lord chief justice Alvanley adopts an idea of'the same kind, in Poole v. Poole et al., 3 Bos. & Pul. 627.

In Hockley v. Mawley, 1 Ves.jr. 143., lord Thurlow says, that where there is a devise to persons in remainder, after a tenancy for life, to take distributively, and according to proportions, they must take as purchasers, for there is no other way for them to take. See also Goodright Lessee of Docking v. Dunham, Doug. 251, (264.), Doe Lessee of Comberbach v. Perryn, 3 Term Rep. 490., Seaward v. Willock, 5 East 205., Jacobs et uxor v. Amyatt et al., 4 Bro. Cha. Rep. 542.

In the case of the Lessee of Smith v. Folwell determined in this court, Tilghman.Chief Justice observed, that there is no doubt, that the -word heirs may be construed as a word of purchase, when the testator appears to have used it with a view of designating a particular person. 1 Binn. 559. All the members of the court delivered their opinions much at large on what they severally conceived to be the true meaning of the will. Ib. 560.

The construction of wills should be favourable to the intent of the parties, and agreeable to common understanding. Ander. 60., 1 Bulst. 175., Hob. 304., 2 Bl, Com. 379. And where the intention of the will is plain, it ought to control the legal operation of the words. 2 Pr. Wms. 673., 4 Burr. 2246.

I admit, that the word issue is either a word of purchase or of limitation, as will best effectuate the testator’s intention. I also hold, that heirs and heirs of the body have likewise been restrained as words of purchase, when the same were evidently used in a will in that senseythough I concede, they always give way with greater difficulty than the word issue. 4 T. R. 294, 299, 300.,T use the expressions of Mr. Hargrave in his observations on the rule, p. 562, when I say that it clearly appears to me, that “ the testator in this will “ has applied the word heirs, in a peculiar sense of his own.” Technical rules are not to be relied upon in explaining the intention of testators; and yet cases of intention are much, embarrassed by authorities. An anxiety to effectuate what has been considered the leading intention of a testator, has introduced all the difficulty in this kind of cases. 1 Bos. & Pull. 321. See 1 T. R. 597., Doug. 327, (341).

According to Fearne’s delineation of tire rule in Shelley’s case, it comprehends two discriminating lines, whose concurrence seems to decide its application; the one is, that the person to claim the inheritance after the ancestor, is to claim as heir, that is eo nomine, and under that description, whoever such person may be; and the other, that the effect of the limitation is not confined to the person so first claiming, or his representatives as such, of any description, but directed equally through all other persons successively answering the same relative description of heirship general or special, to the ancestor referred to, and intitling them eo no-mine, or in that character only. 1 Fearne 310. He admits, that the latter branch of the distinction excludes all those cases, where the words of limitation superadded to the words heirs &c. denote a different species of heirs from that described by the first words; as in the case put by Anderson in Shelley’s case.

Of the true meaning of this testator in the devise under consideration, I have not a particle of doubt. What greatly weighs with me in the technical legal exposition of the will, is, that so far from any words therein shewing a general intent to give an estate tail to John the son, in contradiction to the estate for life given to him in precise words, we plainly see that by con ferring on him such estate tail, we wholly defeat the provisions of the testator; whereas by giving him an estate for life, and a contingent fee to his children, we effectuate every intent both general and particular. I therefore feel myself authorized to construe the word heirs in the first part of the devise, as children, or sons and daughters, and as a mere designatio personarían; and I conceive that they were to take in fee simple, in the same manner as the remainder over was limited to their uncle James; and that such devise was perfectly consistent with the established rules of law.

Upon the whole, I am of opinion, that the judgment of the Circuit Court should be affirmed.

Brackenridge J.

It occurs to me to make a grammatical analysis of the words of this devise. “ If he shall die “ leaving lawful issue, I give and devise to his heirs as tenants a in common, and their respective heirs and assigns for “ ever.” For the pronoun, he, substitute the noun for which it is used, and the sentence will be, “ If my son John shall “ die leaving lawful issue, I give and devise to his heirs.” The word his must refer to John, because the issue might be female, and the word his would not correspond; and issue might be plural, and his would not correspond. It must therefore be, “ If my son John shall die leaving lawful issue, “ I give to John’s heirs, and their, &c.” The word their must refer to heirs before mentioned; and therefore the whole sentence must be, “ If my son John shall die leaving “ lawful issue, I give to John’s heirs, as tenants in common, “ and heirs’ respective heirs and assigns for ever.”

The first branch of the sentence, with the nouns substituted for the pronouns, will be, “ If my son John shall die “ leaving lawful issue, I give to John’s heirs, &c.” Does the word heirs here mean all that can claim descent from the same common ancestor, or heirs general? If so, why in the next branch of the sentence, heirs of heirs? The fee hadbeen sufficiently given before in the life estate to John, with the remainder to John’s heirs. This proves, that by heirs in the first branch of the sentence, is meant issue; and the devise in that case will be, “ If he shall die leaving issue, I “ give to his issue.” The word their, must in that case be supplied by the word issue; for it is that instead of which it is used; and the whole devise will then be, If my son John shall die leaving lazvful issue, I give to his issue, and issue’s respective heirs and assigns for ever.

The word heir, in the first branch of the sentence, meaning- issue, it might be natural to understand the word heirs in the last branch to be the same; and so, it would be to his issue, and issue’s respective issue and assigns for ever. This gives the inheritance to the remotest issue. But, on the failure of issue, who would take? Not the remainder man; for his contingency had gone, on John’s dying leaving lawful issue. It must be one who can trace his ascent to some common ancestor; and therefore the word heirs in the last branch of the sentence, must mean more than issue, and be taken in a technical sense, and mean general heirs, to avoid an escheat on the failure of issue. Having thus ascertained the meaning of the terms, I come to consider the effect of them in this devise.

The word issue is a word of limitation, or of purchase, accordingly as it is used as a nomen collectivum or nomen singulare. The word respective, fixes the meaning of the word here to be nomen singulare; for it is a term of individuality, and must have several to refer to. Tenants in common also imply several. So that it is used here as a word of purchase. And, even if we take the word heir instead of the word issue, it must receive for the same reason the same construction. Distinct issues taking at the same time, is inconsistent with a taking in tail, where but one can take at a time; and the taking by distinct issues must be in succession. It is clear, therefore, that the testator did not mean an estate tail; nor, will the terms necessarily carry it.

But the law will warrant the construing it an estate tail, if it be necessary to effect the intent, even at the expense of aparticular intent, and to reach this, will reject and supply words; as, in this case, the word respective, and the words tenants in common.

This will introduce the inquiry, what was the general intent? It was the providing for the issue of John the son. Could a grandchild take under the term issue? It must be so; otherwise, no child being left, but a grandchild, the remainder would go over from the issue. But a tenancy in common of a grandchild with a child was not intended; and it will disturb the proportion of the issue in the first degree. There may be several grandchildren of one child. All these to take per capita, will not be within the intention; and they must take per stirpes, if the intention was observed; in loco parentum, and as heirs. Whether they can take as heirs, not construing the devise an estate in tail, will be the pinch of this case, which I will by and by consider; but in the mean time I will ask, will it effectuate the Intention better, to construe it an estate tailP Each of the offspring has, in that case, an equal chance of coming to the whole estate, by succession; but not an equal chan ce,inpoint of time; and the taking is liable to be defeated altogether by a bar of the intail; and defeating not only a taking by the issue, but, in case of no issue left, defeating the taking by him in remainder over, who, in this case, is a younger son of the testator, and for whom he must be supposed to intend strongly this interest, which is more particularly marked by making him an executor. So, that it may not be so clear that an estate tail will best effectuate the intention, with regard to the issue; and certainly, with regard to the remainder man, in case of the contingency in his favour, not at all.

But will not the law imperatively construe this an estate tail? That is to say, will not the legal rules of construction, which are rules of property, make this an estate tail?

Hargrave, in his observations concerning the rule in Shelley’s case, 1 Laxo Tr.574., has laid down what he conceives to be the first step in the investigation of the application of this rule. That is, whether by a remainder to the heirs either general or special of the preceding tenant for life, it is the meaning of the instrument, to include the whole of his inheritable blood; orto design only a certain individual person answering to the description of the heir at his death; or, as we would inquire in the case before us, certain individual persons answering to the description of heirs at his death. Nothing can be better founded, says Fearne, in his comment on these observations, than “ that the application of the rule supposes “ the intention discovered.” 1 Fearne 295. And though this discovery, which must be made previous to the application of the rule, is spoken of by Hargrave as “ of all juridical ques- “ tions the most simple,” yet Fearne, with whom I agree, considers it as the hoc opus, hie labor. He subjoins, however, what he conceives to be reducing the inquiry respecting the admission of the rule to two simple questions, viz. “ is the “ limitation to the heirs &c., so calculated and directed, that “ the person claiming under it must intitle himself merely “ under the description of heir of the species denoted by the “ words, in their technical sense? And if so, is there any “ thing to restrain the same words from equally extending “ to, and comprehending all other persons successively an- “ swering the same description; or from intitling them alike “ under it, and eo nomine only? A negative answer to either “ branch of this inquiry seems to exclude the application of “ the rule.”

Putting these questions, in the present case, I ask, of what species are the heirs spoken of in this devise, general or special? T'hey are special heirs; heirs of the body. But is it merely under the description of heir of the body, in the technical sense, that these could claim? If I was to answer and say here, that the heir claiming in this case must be án heir of the body, yet I could not say that there is any thing to restrain the same words from equally extending to and comprehending all other persons successively answering the same description; or from intitling them alike under it, and eo nomine. For it is not the eldest born, or first issue only that can take under this devise; but the younger born may equally take. Nay it is a part of the devise; and under the same denomination of issue with the eldest born. For his heirs must be referred to issue, as those heirs which are to take.

I cannot doubt but that by the word heirs the testator meant issue, and by their heirs, he meant their issue, and intended to restrain the devise to these taking from the immediate issue as a new stock, and not by descent from the testator as the terminus a quo. The words “ their respective heirs" must intend other than those that would be equally heirs, which must be the case, to all claiming through the same ancestor.

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 of a fee simple estate. But an estate in tail is not the subject of an intestacy. The law regulates the descent to the heir in tail, which shews, at least, that the testator did not use the word heir as meaning heir in tail in his own intendment.

But there are rules of construction by which the intention: must be ascertained; and these will control the discretionary construction of a judge upon what appears to him the appal, rent intention: certain established legal maxims deducibll' from decisions. These are, such as construing words acf cording to their technical signification, unless by relation tó some other word, they are shewn to be used in a popular sense. As, in the devise in question, where the devise being; “ if he shall die leaving lawful issue, I give to his heirs,” shews, by relation to the word issue, that by heirs he meant issue. And in the next part of the devise, “ to their respec- “ tive heirs,” shews that he refers to heirs of a new terminus, and the ingrafting an inheritance upon a separate.stock. The tenancy in common also evinces this, which, in the language of Fearne, is impossible by descent. 1 Fearne 107, 237. So that it is inconsistent with the idea of meaning an estate tail in the son, to devise a tenancy in common to the issue, of whom but one can take, unless in succession, and that the whole. And this was laid down as a ground of construction by Mansfeld and Wilmot in the case of Doe v. Laming, 2 Burr. 1110. And, in the illustration of those questions which Fearne makes a criterion of the application of the rule in Shelley’s case, from the evidence of the intention, he considers all those cases as excluded from the operation, where the words heirs of the body &c. are by other words of reference or qualification explained or restrained to the first and other sons, as well as those wherein, on account of words subjoined, persons to take cannot take as heirs or by virtue of that description, by reason of the distributive direction among several not constituting an heir; or as tenants in common; or in some other mode not reconcilable with the course of descent, as in Doe v. Laming and others of that sort.

But the pinch at which I have already hinted, is the consequence, in a possible event, of not construing this devise an 'estate tail. For, in construing a will we must put ourselves in the situation of having it laid before us, at the time of the writing, and as looking then, to what might turn out to be the application of our construction, at the time of the decease. As for instance, in this case, the possible dying and leaving lawful issue iremediate and remote, with a plurality in the representatives of one, who, if they take at all, it must be in loco parentum; that is, not share and share alike with the immediate issue living, but the share of the parent deceased. ,

Something was thrown out in the course of the argument, at the bar, by the counsel contending for the estate tail, of a confidence of what the opinion would be of the elder of the profession were it taken, on this devise. The case being held under advisement, and it so happening that I had an easy opportunity, I put the case to one of the eldest and ablest of the profession in the state, and totally unconcerned in the matter, but submitted merely as a problem in legal science, in that abstruse part of it, the doctrine of devises and contingent remainders. His note to me I hold in my hand and will read it. It is as follows:

“ Is the rule in Shelley’s case conclusive? No. Where an “ estate for life is given, with intention expressed by declara- “ lion plain (Hobart) that issue, — children—first and every “ other son, even heirs of the body lawfully begotten, (2 Bur• “ noi) shall take as purchasers, the express estate for life “ shall not by construction, or implication, be enlarged to u an estate in tail.

“ The intention in the present case is most.evident, that “ the issue of John, alive at his death, should take a fee. The “ words “ and to their heirs and assigns for ever” demon- « strate such intention. In the arguments respecting similar « cases, it has been contended that issue is nomen collectivum, “ and comprehending all future issue to the latest generations; hence it has been concluded that issue cannot be a “ word of purchase, but of limitation annexed to the taker o for life, uniting to his estate all possible issue at ever' so “late a period, and thereby necessarily creating an estate in “ tail in the devisee for life. The stress of the argument is, :t to shew that issue is not to be considered as a word of “ purchase; but it cannot apply to the present case, where the “ intention is plain that it shall be a word of purchase. It is “ of the essence of an estate in tail, that issue ad infinitum, “ 1000 years hence, are looked upon to be included in it. “ Without such view there can be no estate in tail. Does “ the death of the child in John’s lifetime, (a possible event) “ create a difficulty, such child having left a child who sur» “ vived John? It seems that it does not. The estate in- “ tended to be created by the testator was conditional. If “ John left issue, (at the time of his death) such issue was- “ to take a fee in common. Neither by the words, or inten» “ tion, is the condition to be fulfilled by the existence of ini- “ mediate issue, — to wit, a child, — issue only is called for, and il to be in existence, at a lawful time (the death of the de» “ visee for life) for the fulfilment of the condition. Issue; a “ great great grandchild is issue, and certainly intended by “ the testator. Was it his meaning that if John left a son — - “ he John should only have an estate for life; but, if he left “ a grandson, John should have an estate in tail?

“ As to the tenancy hi common, the peculiarity of the word» “ ing seems to relieve us from difficulty in the case put. “ I “ give to his heirs” shews how issue were to take, viz. as “ they -were heirs. The testator may reasonably be pre- “ sumed to have contemplated that John would die, leaving “ a son B. and grandchildren E. F. sons of C. a deceased “ son — then how are B., E. and F. issue alive at the death of “ John, to take? Surely as they were heirs. B. one half — E. u and F. the other half. He dont -mean heirs genei'al, but “ such as were issue of John alive at John’s death. The “ word “ heirs” in a will is always understood such heirs as “ testator meant. 1 Vesey 25. If an estate tail is to be raised “ here, it must be by implication. What is the rule? When “ necessary “ to effectuate the manifest general intention of “ the testator;” the words of Mr. Harvey arguing in favour “ of an estate in tail. 3 Burr. 1634.

“ It is fatal to the idea of an estate in tail, that indefinite “ issues of John were not contemplated by the testator — in» “ definite in point of time — on the contrary, issues at John’s u death then alive.”

So far the note of this gentleman; and if correct in whát I call the pinch of the case, as to the issue remote taking by purchase, and the proportion of the stock in the first degree,, and as heirs would take in case of a descent, there is nothing in the way of effectuating the general intent of providing for the issue, in any eyent that may happen, construing this an estate tail. The particular intent may then stand of giving the first taker an estate for life.

In contemplation of law, the barring the intail by a fine and recovery is not a defeating the general intent in favour of the issue; because a fee of equal value is supposed to come for their use; but this being but a fiction, the general, intent is in fact destroyed, and the issue are left without provision. Shall we then raise such an estate by construction, as will destroy the general intent, by putting it in the power of him to destroy it, out of whose power it was intended to be kept, by the giving him but an estate for life? I do not think that any possible event could justify it; and that, if even remote issue could not take under the denomination of heirs, this event not contemplated by the testator ought not to be provided for at the expensé of any intent contemplated and expressed. I think myself therefore warranted in construing the estate to John an estate for life, and not an estate tail.

Judgment affirmed.