The opinion of Yeates, J. was as follows :
It is undoubtedly a general rule, that on a devise of lauds, or a legacy of personalties, if the devisee or legatee die in the life-time of the testator, the same are lapsed. Yet a will may be so penned as to prevent such lapse. But there must be special words, to show clearly, that to be the testator’s intention. 1 Wms. 84. Thus, if one devises in the words following: “ I give and devise the several legacies and sums following, which I will shall be paid to the several persons hereinafter named, and that if any of those persons should die before the same become due and payable, I will that they or any of them shall not be deemed lapsed legacies ; ” and then particularizes the several legatees, and says, “ to A, the wife of R, and her executors or administrators, I give the sum of 50i. ” A, died in the life of testatrix, and her husband administered to her. Lord Hardwicke decreed the legacy to her husband, on the ground that other persons were named to take in case of the death of the legatee. 3 Atky. 573. Vide 2 Vern. 378. 3 Atky. 581, 582. 3 Bro. Cha. Rep. 240.
It is however urged, that the testator here only meant to provide for the event of any of the devisees dying after him and before his wife’s decease, and that if his intentions were otherwise, he might readily have expressed them. To this it is fairly answered, that if such construction is adopted, the superadded words, “ and if any of them should die before my said wife’s decease, ” are deprived of all kind of operation and absolutely rejected. Because without this additional clause, if Elizabeth, the daughter, had survived her father, she would have taken a vested remainder, and if she had died before the same had come into possession, on the death of the widow the same would have descended to her heirs. Consequently, to give force and effect to those words, it becomes necessary to fix the intention.of the testator to be that the devises should not lapse, though the devisees died in his lifetime. In Bretton, wife et al. v. Lethulier, 2 Vern, 653, a testator devised the surplus of his estate to is three brothers, the children of his brother 0. and of his sister B. .equally t.o be divided, “ and if any of his brothers died before his estates as got in and divided,his or their share to go to his or their children. ” One of the brothers died in the testator’s life. The Lord-Chancellor observed, that though he died before
e testator, still he died before the estate was gotten in and divided; [585]*585and a will speaks not till the death of the party, but the construction is to be made as matters stood at the time of making the will. Now here, though Elizabeth died before her father, still she died before his said wife’s decease.
If this construction be correct, can the limitation over be supported as a good immediate devise, consistent with law ? Or in other words, can the “ legal representatives ” of Elizabeth take under this will as purchasers ?
A devise to one in rerum natura, and he dies before the testator, it is all one as no devise. Plowd. 845.
A devise to a wife during life, and after her death to a child in ventre sa, mere, and to the heirs of such child forever, provided that if such child shall die before the age of 21 years, leaving no issue of its body, reversion over. The child was never in existence ; and it was held to be the same thing whether the limitation to the child never took effect, or whether it did, and that the remainder over was good. 1 Wils. 106.
Devise of lands to A. and the heirs male of his body, and for default of such issue, remainder over to B. A dies in the life of testator, leaving issue, the devise to A. is void, and B. shall take the remainder presently. 2 Vern. 723. Andr. 263.
Devise to A. and the heir of his body, and for want of such issue to B. A. dies before testator, leaving issue, such issue shall take nothing, and the limitation to B, shall not be construed, as an executory devise, but shall vest in possession as an immediate devise, on the testator’s death. Doug. 823. 4 Term Rep. 601.
It must be admitted, that if it appears by the whole of a will, that a testator using the word heirs, means that succession of persons so denominated by law, the rule in Shelley’s case, (1 Co. 93,) must in all events take place, notwithstanding the most explicit direction, that such heirs should take by purchase, or that the ancestor should only have an estate for life ; but where the word heirs is used in any other sense, the rule is not applicable, and the limitation must have its effect, as if proper words had been made use of. Jones v. Morgan. 1 Bro. Cha. Rep. 206. 1 Wms. 142. Cox’s ed. (note 2.) 5 Term Rep. 323.
Heirs is a word of limitation and not of purchase. 1 Freem. 293. Nothing can be better established, than if there be a devise to A. and his heirs, or to the heirs of his body, or to A. in tail, and A die in the life-time of testator, the devise is void. Doug, 323, 330. 4 Term Rep. 603. Plowd. 345.
Issue in a will is either a term of limitation or purchase, as will [586]*586best answer the intention of testator; though, in a deed, it is always taken as a word of purchase. 4 Term Rep. 299.
The principle, that an heir should not take a contingent remainder of an estate as a purchaser, where his ancestor took a freehold estate by the same conveyance, rests on the policy of the feudal system, because such depositions, while fiefs were predominant, tended to defraud the lord of the fruits of his tenure, by enabling the heir, with the concurrence of his ancestor, to take the estate as fully as by descent, without the feudal burthens to which it would have been liable had the estate descended. Hence it became a rule of construction, applicable to all instruments so conceived, that the estate limited to the heir, though meant to be contingent, should in law be considered as vested in the ancestor ; and every devise in which an estate of freehold was given to the ancestor, with an immediate or mediate remainder thereon limited to his heirs, or heirs in tail, or issue (the latter term being considered in a devise as a word of limitation) was considered technically as importing an intent in the devisor so to convey. Consequently, the words heir or issue, when so used in a devise, cannot take effect as a description of the person, to take as a purchaser. But when the foundation of the priciple, upon which the rule was grafted, failed, the rule that had been raised thereupon was not extended beyond the precise limits it had at that time reached; from that period therefore, courts of law and equity seem to have been as industrious to take devises out of that rule of construction, in favor of a contrary intent, where that intent is-clear, and must necessarily be collected from the testator’s language, as formerly they were to endeavor to bring cases within that rule, while the principle of it continued to operate. It follows, that the heir-or issue of a devisee may now take under that description contingent remainders as purchasers, notwithstanding a previous freehold is limited to the ancestors by the same devise, if there be language so modifying the limitation, as to make it not quadrate exactly with the rule. Pow. on Dev. 355, 6, 7.
Thus, in Haddon’s case (cited Moor. 372) a devise to one for life, and so afterwards to every person that should be his heir for life only, was held to convey an estate in possession to the tenant for life, with a remainder for life to the next heir and nothing more.
So in Loddington v.
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The opinion of Yeates, J. was as follows :
It is undoubtedly a general rule, that on a devise of lauds, or a legacy of personalties, if the devisee or legatee die in the life-time of the testator, the same are lapsed. Yet a will may be so penned as to prevent such lapse. But there must be special words, to show clearly, that to be the testator’s intention. 1 Wms. 84. Thus, if one devises in the words following: “ I give and devise the several legacies and sums following, which I will shall be paid to the several persons hereinafter named, and that if any of those persons should die before the same become due and payable, I will that they or any of them shall not be deemed lapsed legacies ; ” and then particularizes the several legatees, and says, “ to A, the wife of R, and her executors or administrators, I give the sum of 50i. ” A, died in the life of testatrix, and her husband administered to her. Lord Hardwicke decreed the legacy to her husband, on the ground that other persons were named to take in case of the death of the legatee. 3 Atky. 573. Vide 2 Vern. 378. 3 Atky. 581, 582. 3 Bro. Cha. Rep. 240.
It is however urged, that the testator here only meant to provide for the event of any of the devisees dying after him and before his wife’s decease, and that if his intentions were otherwise, he might readily have expressed them. To this it is fairly answered, that if such construction is adopted, the superadded words, “ and if any of them should die before my said wife’s decease, ” are deprived of all kind of operation and absolutely rejected. Because without this additional clause, if Elizabeth, the daughter, had survived her father, she would have taken a vested remainder, and if she had died before the same had come into possession, on the death of the widow the same would have descended to her heirs. Consequently, to give force and effect to those words, it becomes necessary to fix the intention.of the testator to be that the devises should not lapse, though the devisees died in his lifetime. In Bretton, wife et al. v. Lethulier, 2 Vern, 653, a testator devised the surplus of his estate to is three brothers, the children of his brother 0. and of his sister B. .equally t.o be divided, “ and if any of his brothers died before his estates as got in and divided,his or their share to go to his or their children. ” One of the brothers died in the testator’s life. The Lord-Chancellor observed, that though he died before
e testator, still he died before the estate was gotten in and divided; [585]*585and a will speaks not till the death of the party, but the construction is to be made as matters stood at the time of making the will. Now here, though Elizabeth died before her father, still she died before his said wife’s decease.
If this construction be correct, can the limitation over be supported as a good immediate devise, consistent with law ? Or in other words, can the “ legal representatives ” of Elizabeth take under this will as purchasers ?
A devise to one in rerum natura, and he dies before the testator, it is all one as no devise. Plowd. 845.
A devise to a wife during life, and after her death to a child in ventre sa, mere, and to the heirs of such child forever, provided that if such child shall die before the age of 21 years, leaving no issue of its body, reversion over. The child was never in existence ; and it was held to be the same thing whether the limitation to the child never took effect, or whether it did, and that the remainder over was good. 1 Wils. 106.
Devise of lands to A. and the heirs male of his body, and for default of such issue, remainder over to B. A dies in the life of testator, leaving issue, the devise to A. is void, and B. shall take the remainder presently. 2 Vern. 723. Andr. 263.
Devise to A. and the heir of his body, and for want of such issue to B. A. dies before testator, leaving issue, such issue shall take nothing, and the limitation to B, shall not be construed, as an executory devise, but shall vest in possession as an immediate devise, on the testator’s death. Doug. 823. 4 Term Rep. 601.
It must be admitted, that if it appears by the whole of a will, that a testator using the word heirs, means that succession of persons so denominated by law, the rule in Shelley’s case, (1 Co. 93,) must in all events take place, notwithstanding the most explicit direction, that such heirs should take by purchase, or that the ancestor should only have an estate for life ; but where the word heirs is used in any other sense, the rule is not applicable, and the limitation must have its effect, as if proper words had been made use of. Jones v. Morgan. 1 Bro. Cha. Rep. 206. 1 Wms. 142. Cox’s ed. (note 2.) 5 Term Rep. 323.
Heirs is a word of limitation and not of purchase. 1 Freem. 293. Nothing can be better established, than if there be a devise to A. and his heirs, or to the heirs of his body, or to A. in tail, and A die in the life-time of testator, the devise is void. Doug, 323, 330. 4 Term Rep. 603. Plowd. 345.
Issue in a will is either a term of limitation or purchase, as will [586]*586best answer the intention of testator; though, in a deed, it is always taken as a word of purchase. 4 Term Rep. 299.
The principle, that an heir should not take a contingent remainder of an estate as a purchaser, where his ancestor took a freehold estate by the same conveyance, rests on the policy of the feudal system, because such depositions, while fiefs were predominant, tended to defraud the lord of the fruits of his tenure, by enabling the heir, with the concurrence of his ancestor, to take the estate as fully as by descent, without the feudal burthens to which it would have been liable had the estate descended. Hence it became a rule of construction, applicable to all instruments so conceived, that the estate limited to the heir, though meant to be contingent, should in law be considered as vested in the ancestor ; and every devise in which an estate of freehold was given to the ancestor, with an immediate or mediate remainder thereon limited to his heirs, or heirs in tail, or issue (the latter term being considered in a devise as a word of limitation) was considered technically as importing an intent in the devisor so to convey. Consequently, the words heir or issue, when so used in a devise, cannot take effect as a description of the person, to take as a purchaser. But when the foundation of the priciple, upon which the rule was grafted, failed, the rule that had been raised thereupon was not extended beyond the precise limits it had at that time reached; from that period therefore, courts of law and equity seem to have been as industrious to take devises out of that rule of construction, in favor of a contrary intent, where that intent is-clear, and must necessarily be collected from the testator’s language, as formerly they were to endeavor to bring cases within that rule, while the principle of it continued to operate. It follows, that the heir-or issue of a devisee may now take under that description contingent remainders as purchasers, notwithstanding a previous freehold is limited to the ancestors by the same devise, if there be language so modifying the limitation, as to make it not quadrate exactly with the rule. Pow. on Dev. 355, 6, 7.
Thus, in Haddon’s case (cited Moor. 372) a devise to one for life, and so afterwards to every person that should be his heir for life only, was held to convey an estate in possession to the tenant for life, with a remainder for life to the next heir and nothing more.
So in Loddington v. Kime, a devise to B for life without impeachment of waste, and in case he should have any issue male,to such issue male and his heirs forever ; the subsequent limitation to the issue male of B was held not to make him tenant in tail, but to be a contingent fee to Ms [587]*587issue male, who took by way of purchase, as a devisee specifically described. 1 Salk. 224. 1 Ld. Raym. 203, 3 Lev. 435. A limitation to the heirs of the body of A now living, shall be good as designatio personse, notwithstanding the rule nemo esthceres viventis. 2 Vent. 311.Pollex. 457. 2 Lev. 232.
So a limitation to the heirs of the body of A then begotten, shall prevail. 1 Wms. 229. 1 Bro. Bro. Parl. 489. 2 Bla. Rep. 1010.
And a devise to a son and the heirs of his body, the son being dead before the will made, the grandson will take as a purchaser. Cro. El. 423.
A devise to one and his heirs, may in particular circumstances, make the heirs take by purchase. 1 Bla. Rep. 265. 2 Burr. 1100.
Heirs or issue, where they take distributively, must take as purchasers. F. Ves. jr. 145.
If a testator makes use of technical phrases, the court are bound to understand them in the legal sense ; but it is otherwise of words, which manifestly indicate his intention. Per. Buller, Just. Doug. 327.
Where the intention in a will is plain, it ought to control the legal operation of the words. 2 Wms. 673. 4 Burr. 2246. 4 Bro. Cha. Rep. 460.
A devisee may be described as first and eldest son not heir at law.
Annal. 96. And an elder daughter may take by devise as special heir, by particular description. 2 Bl. Rep. 1002.
So a devisee may be described as next of kin. Cro. El. 532. Nearest relation of the name is likewise a good^description of a devisee, and operates as noman collectwum. 1 Vez. 335.
The words used in the will under consideration are u to their legal representatives, agreeably to the common law of England, or as modified by the law of the states, wherein they are respectively situated.”
In the British statutes of distribution, ( 22 and 23 Car. 2, c. 10, and one Jac. 2, c. 17,) it is said, that the words “ legal representatives” are used for the intestate’s children, or their children, or the descendants of the next of kin. They mean persons substituted in the place of others deceased. 2 Bro. Cha. Rep. 226.
So it is under our intestate act of 1705, 1 Dall. St. Law, Append, 44, § 2, the supplement thereto of 1764. Ib. 47, §§ 1, 4. And under the new act of 19th April 1794. 3 St. Laws 526, §§ 8, 9, 22 ; and the supplement thereto of the 4th April 1797. 4 St. Laws 169, § 7.
In Bridge v. Abbot, where a testatrix bequeathed the residue o [588]*588her personal estate to several persons, and if they should die in her life-time, to their legal representatives, one of them died, and the master of the rolls decreed, that his next of kin at the death of the testatrix, should take his share. 3 Bro. Cha. Rep. 224.
The words “ legal representatives ” have never, as far as I have been able to discover, been construed as technical terms of limitation, measuring out the quantity of estate that a devisee was to take. The case of Duncan’s lesse, v. Walker, very briefly reported in 2 Dali. 205, by no means shows it. The objections in Groodright v. Wright, reported in 1 Wms. 397, 1 Stra. 25, 10 Mod. 370 2 Equ. Ca. Ab. 359, pl. 13, against the words issue and heirs, cannot, in my idea, hold in this case. The terms here made use of are analogous to children, heirs of the body then living, or then begotten, next of kin, &c. which are good words of purchase. The substitution jn the stead of Elizabeth, necessarily took place immediately on the testator’s death, and is perfectly ascertained by law, which fixes the designation. I think there can be no doubt whatever of the intention of Richard Dennis, and that his bounty contemplated the representatives of such of his children as should die before his wife’s decease, as his immediate devisees in their place. And thinking as I do, I feel myself bound to follow his intention. Annal. 96. The lot in question lies in the Northern Liberties, in the county of Philadelphia. Elizabeth Dennis resided and died in her minority, unmarried, in Southwark, in the same county.
It remains only to observe, that the intestate act of 1705, solely directing the course of distribution of real estate in cases of lineal descent, does not reach the present case ; that the law 0^1764- supplementary thereto, changes the common law only where brothers or sisters die intestate in their minority, unmarried and without issue, after the death of any father and mother, and not otherwise ; and that none of the provisions of the late act of 1794 extend hereto. It follows therefore, that Barney Cozens Dennis, the only brother of the whole blood of Elizabeth Dennis, takes the real estate devised to her, agreeably to the common law of England, exclusive of the other children of the testator ; and I am of opinion that he is legally entitled thereto.
J. YEATES.
Lancaster, May 2d, 1800.