R. W. WALKER, J.
In its technical sense, tile term “■heirs of the body” includes all persons who successively answer the description of heir of the body ; and hence it' embraces the whole line of lineal descendants, to the most remote generation. Technically construed, the expression*is one which cannot be used to describe the children or grandchildren of a living person, for “ nemo est lucres viventis.” That the term, as used in this will, cannot be [179]*179understood in this technical sense, is plain; because the testator directs the estate to vest, during the life-time of Sarah Bledsoe, in the “heirs of the body” of Sarah Bledsoe. That this was the intention of the testator, seems too clear 'for doubt. On the death of the widow, the property is to be divided into seven equal parts, “and then disposed of as follows.” To what time does- then here refer ? Obviously to the period of division, the death of Mrs. Breedlove. Next we have -the manner in which these seven parts are ■to be then disposed of — “ to the heirs of the body of Sarah Bledsoe, one part.” If the testator had stopped there, tliere woidd be no room to doubt tiiat the will would have operated a complete gift of that one part, to take effect at that time, in favor of .the persons answering the descrip*tion of heirs of the body of Sarah Bledsoe. .The words which follow simply .postpone the enjoyment of the property by the legatees during/the life-time of Mrs. Bledsoe, -by reserving to her the use and benefit of the same during that time. The qualification attached to Mrs. Bledsoe’s use of the property, “not to sell or dispose thereof,’? (whether v-alid or not,) is at least indicative of the intern* tion of the testator to give only a use, and not-a property or estate in the corpus of the legacy. The heirs- do mot take on the death of Sarah Bledsoe, but they then- com® into the enjoyment of that which they took on the-division made during her life-time. The term “heirs of the body” is, .therefore, used to describe persons who take an interest before the death of Mrs. Bledsoe ; and hencethe persons answering that description take, not as* her heirs, but di-' rectly from the testator, as purchasers-under the will.
Mr. Fearne .says, that when the' words “ heirs,” &c., “operate only to give the'estate imported by them to the heirs described originally;--and as the persons in whom that estate is considered' as commencing, -and not derivatively from or through the -ancestor, they are properly words of purchase.” — F-eárne Rem; 79yl84.
The attempt'to bring this'case within the rule in Shelley’s case — erroneously so -.-ca.lled, when applied to person[180]*180alty — cannot succeed, without transposing and omitting words found in the will, and adding others not used by the testator. The proposition is, that the clause as it stands is the same in effect as if it read thus — “To- Sarah Bledsoe during her life-time one part, but not to sell or dispose thereof, and after -her death to the heirs of her body.” This is not what the testator has said. He gives the one part to the heirs of the body of Sarah Bledsoe, reserving to her simply a use during her life-time; and this use he studiously seeks to distinguish from a property in the corpus, by denying to her the right to sell or dispose of it. The words found in the will give to the “heirs of the body,” &c., the entire property in the corpus of -the legacy; .simply postponing the time of its enjoyment, in order that Mrs. Bledsoe may have the temporary use. The words as transposed, and added to, give to Mrs. Bledsoe the property in the corpus during her life, with remainder to the heirs of her body. In the clause as it stands, the idea of a remainder is studiously excluded, while in that proposed as a substitute, it is the controlling and fundamental idea. In the will as it was written by the testator, while the use of the property is secured to Mrs. Bledsoe, this use is clearly sep.arated from the title to the corpus of the property, which vests at the time of the division in the persons designated .as the heirs of the body of Sarah Bledsoe. These heirs take the entire property, not a remainder after a life-estate ; ,and the reservation in favor of Mrs. Bledsoe is not of the thing itself, but of the use and benefit for a specified time. In this respect, the case is distinguishable from, all those which have been held to fall within the rule in Shelley’s ¡case. — See Shepherd v. Nabors, 6 Ala. 631; Keyes’ Chattels, § 359 (a), § 202 ; 2 Story’s Eq. § 845 (a) ; Wilks v. Greer, 14 Ala. 437-442 ; Golding v. Golding, 24 Ala. 125.
It is to be borne in mind., that by the seventh clause of his will, the testator directs that, on the death or intermarriage of his widow, all his real estate shall be sold to the best advantage ; and the language of the succeeding clause must be construed with referencia to this provision. Al[181]*181though there is no express allegation to that effect, yet it is to be presumed that the executor sold the land as directed, on the death of Mrs. Breedlove; and the exhibit attached to the bill seems to confirm this presumption. At all events, the words of the will must be construed as if his directions had been obeyed. Land ordered to be sold is regarded as money for every purpose necessary to effectuate the intent of the testator.
In Clark v. Clark, (8 Paige, 152,) it was held, that the bequest of the use of the residue of the testator’s personal estate (which was directed to be sold), for the life of the legatee, or for any shorter period, does not entitle such, legatee to the possession of the fund. The executor, should retain the fund in his own hands, and pay over the inceme thereof to the legatee as it accrues ; and if the executor suffers the capital to go into the hands of such legatee, to enable him to collect the income himself, he must take sufficient security from the legatee to insure the return-of such capital. — See, also, Lovenhoven v. Shuder, 2 Paige, 122.
This court has held, that the proper practice in the-chancery court, in such cases, is to-give the legatee for life the option of taking the money upon his executing a suitable bond, and, in case of. his failure to do so, then to order the money to be let out on loan¡ and the interest collected annually, and paid over ten him. — Mason v. Pate, 34 Ala. 392.
But, if we were to concede that Mrs. Bledsoe took a technical lif'^-estate, not a mere usufructuary interest; still the rule would not apply; if the remainder is to vest during her life, in certain persons described as the “ heirs of her body for that fact would negative the idea, that these words were to be construed in their technical sense. 'Wherever these words are used as “ clescriptio personamm,” and not as comprehending the .whole line of descendants in infinitum, they are words of purchase, not of limitation, and the rule in Shelley’s case has no application.
Mr. Fearne says, that the inquiry, in reference to the [182]*182application of the rule in’Shelley’s case; is-reducible to two simple questions, viz: “Is the limitation tb-the heirs, &c.,
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R. W. WALKER, J.
In its technical sense, tile term “■heirs of the body” includes all persons who successively answer the description of heir of the body ; and hence it' embraces the whole line of lineal descendants, to the most remote generation. Technically construed, the expression*is one which cannot be used to describe the children or grandchildren of a living person, for “ nemo est lucres viventis.” That the term, as used in this will, cannot be [179]*179understood in this technical sense, is plain; because the testator directs the estate to vest, during the life-time of Sarah Bledsoe, in the “heirs of the body” of Sarah Bledsoe. That this was the intention of the testator, seems too clear 'for doubt. On the death of the widow, the property is to be divided into seven equal parts, “and then disposed of as follows.” To what time does- then here refer ? Obviously to the period of division, the death of Mrs. Breedlove. Next we have -the manner in which these seven parts are ■to be then disposed of — “ to the heirs of the body of Sarah Bledsoe, one part.” If the testator had stopped there, tliere woidd be no room to doubt tiiat the will would have operated a complete gift of that one part, to take effect at that time, in favor of .the persons answering the descrip*tion of heirs of the body of Sarah Bledsoe. .The words which follow simply .postpone the enjoyment of the property by the legatees during/the life-time of Mrs. Bledsoe, -by reserving to her the use and benefit of the same during that time. The qualification attached to Mrs. Bledsoe’s use of the property, “not to sell or dispose thereof,’? (whether v-alid or not,) is at least indicative of the intern* tion of the testator to give only a use, and not-a property or estate in the corpus of the legacy. The heirs- do mot take on the death of Sarah Bledsoe, but they then- com® into the enjoyment of that which they took on the-division made during her life-time. The term “heirs of the body” is, .therefore, used to describe persons who take an interest before the death of Mrs. Bledsoe ; and hencethe persons answering that description take, not as* her heirs, but di-' rectly from the testator, as purchasers-under the will.
Mr. Fearne .says, that when the' words “ heirs,” &c., “operate only to give the'estate imported by them to the heirs described originally;--and as the persons in whom that estate is considered' as commencing, -and not derivatively from or through the -ancestor, they are properly words of purchase.” — F-eárne Rem; 79yl84.
The attempt'to bring this'case within the rule in Shelley’s case — erroneously so -.-ca.lled, when applied to person[180]*180alty — cannot succeed, without transposing and omitting words found in the will, and adding others not used by the testator. The proposition is, that the clause as it stands is the same in effect as if it read thus — “To- Sarah Bledsoe during her life-time one part, but not to sell or dispose thereof, and after -her death to the heirs of her body.” This is not what the testator has said. He gives the one part to the heirs of the body of Sarah Bledsoe, reserving to her simply a use during her life-time; and this use he studiously seeks to distinguish from a property in the corpus, by denying to her the right to sell or dispose of it. The words found in the will give to the “heirs of the body,” &c., the entire property in the corpus of -the legacy; .simply postponing the time of its enjoyment, in order that Mrs. Bledsoe may have the temporary use. The words as transposed, and added to, give to Mrs. Bledsoe the property in the corpus during her life, with remainder to the heirs of her body. In the clause as it stands, the idea of a remainder is studiously excluded, while in that proposed as a substitute, it is the controlling and fundamental idea. In the will as it was written by the testator, while the use of the property is secured to Mrs. Bledsoe, this use is clearly sep.arated from the title to the corpus of the property, which vests at the time of the division in the persons designated .as the heirs of the body of Sarah Bledsoe. These heirs take the entire property, not a remainder after a life-estate ; ,and the reservation in favor of Mrs. Bledsoe is not of the thing itself, but of the use and benefit for a specified time. In this respect, the case is distinguishable from, all those which have been held to fall within the rule in Shelley’s ¡case. — See Shepherd v. Nabors, 6 Ala. 631; Keyes’ Chattels, § 359 (a), § 202 ; 2 Story’s Eq. § 845 (a) ; Wilks v. Greer, 14 Ala. 437-442 ; Golding v. Golding, 24 Ala. 125.
It is to be borne in mind., that by the seventh clause of his will, the testator directs that, on the death or intermarriage of his widow, all his real estate shall be sold to the best advantage ; and the language of the succeeding clause must be construed with referencia to this provision. Al[181]*181though there is no express allegation to that effect, yet it is to be presumed that the executor sold the land as directed, on the death of Mrs. Breedlove; and the exhibit attached to the bill seems to confirm this presumption. At all events, the words of the will must be construed as if his directions had been obeyed. Land ordered to be sold is regarded as money for every purpose necessary to effectuate the intent of the testator.
In Clark v. Clark, (8 Paige, 152,) it was held, that the bequest of the use of the residue of the testator’s personal estate (which was directed to be sold), for the life of the legatee, or for any shorter period, does not entitle such, legatee to the possession of the fund. The executor, should retain the fund in his own hands, and pay over the inceme thereof to the legatee as it accrues ; and if the executor suffers the capital to go into the hands of such legatee, to enable him to collect the income himself, he must take sufficient security from the legatee to insure the return-of such capital. — See, also, Lovenhoven v. Shuder, 2 Paige, 122.
This court has held, that the proper practice in the-chancery court, in such cases, is to-give the legatee for life the option of taking the money upon his executing a suitable bond, and, in case of. his failure to do so, then to order the money to be let out on loan¡ and the interest collected annually, and paid over ten him. — Mason v. Pate, 34 Ala. 392.
But, if we were to concede that Mrs. Bledsoe took a technical lif'^-estate, not a mere usufructuary interest; still the rule would not apply; if the remainder is to vest during her life, in certain persons described as the “ heirs of her body for that fact would negative the idea, that these words were to be construed in their technical sense. 'Wherever these words are used as “ clescriptio personamm,” and not as comprehending the .whole line of descendants in infinitum, they are words of purchase, not of limitation, and the rule in Shelley’s case has no application.
Mr. Fearne says, that the inquiry, in reference to the [182]*182application of the rule in’Shelley’s case; is-reducible to two simple questions, viz: “Is the limitation tb-the heirs, &c., so calculated and directed', that the person claiming under it must entitle himself merely under the- description of heir of the species denoted by the words in -their technical sense ? And if so, is there anything to- restrain the same words from equally extending to and- comprehending all other persons successively answering -the same description* or from entitling them alike under it, and eo nomine ? A negative answer to either branch of this inquiry seems to exclude the application of --the rule.”- — Fearne Rem. 199.
We have already expressed the opinion, that the words “■heirs of the-body” were here used as descriptive of particular persons,- who were to take an interest under the will during the life of their- ancestor, and not as embracing all other personswho might, successively answer the description of “heirs of the body of Sarah Bledsoe,” understanding that expression in its-technical sense. This being so, both branches of the inquiry proposed- by Mr. Fearne must be answered in the negative.
The view we have take» derives support from the fact, that Sarah Bledsoe had children living- at the date of the-will, who might take under it, if we understand the words* in their popular, not in their technical sense-; that Mrs. Bledsoe had received advancements from her father during-his-life-time, and that lie made a further separate provision-for her by bis will; that slie was at the time a married-woman, -and that her father must be presumed ‘to have known that a gift to his daughter would enure to the ben-fit of the husband, to the exclusion of her children.
Our conclusion is, that the terms “heirs of the body of Sarah Bledsoe” were intended as descriptive of the children of Sarah Bledsoe, who might be living at the time-appointed for the division of the property, namely, the death of the testator’s widow ; that the persons thus described take from the testator directly, as purchasers, and not through Mrs. Bledsoe in succession, as her heirs. Hence tbe rule in Shelley’s case lias nothing to do with [183]*183ñie case. — See Woodley v. Findlay, 9 Ala. 720 ; Dunn v. Davis, 12 Ala. 135 ; Powell v. Glenn, 21 Ala. 466 ; Durden v. Burns, 6 Ala. 368 ; Dudley v. Porter, 16 Ga. 618 ; Hodgson v. Bussey, 2 Atk. 89 ; Keyes’ Chatt. § 102.
Decree reversed, and cause remanded.
STONE, J.
I am not able to agree with either the reasoning or conclusions of the majority of the court, as expressed in their opinion. I have found no case, and I apprehend none can be found, which agrees with this in its facts, and which asserts that heirs of the body take as purchasers. In Baldwin v. Carver, (1 Cowp. 318,) Lord Mansfield said, “The rule of law most undoubtedly is, that a devise to the heirs general or special of a man alive, is void.” In the same case, which in its principles is not distinguishable from this, save in the feature that there was in-that, case an attempted bequest over of the personalty if the life-tenant died without heirs or issue, that same learned judge remarked, “It strikes-me, as at present advised, that, the subsequent limitation of the personalty is too remote.”
There ds a rule, well defined and sensible, "that “where a bequest is to children or grandchildren generally, payable at a certain time, or at the happening of an event, then all who fill the description and are in esse at the iime, or at the happening of the event, take.” The spirit and sense of this rule, I apprehend, lie in the following two principles : 1st, there is a poliey of the law to so construe the language of the testator, as to let in the largest possible number of beneficiaries and, 2d, when, by the terms of the bequest, the property becomes uecessarily divisible — namely, by the occurrence of the time, or the happening of the event specified, then the door must be closed against after-beneficiaries, or the result would be to make the distributive portions unequal ; which would defeat the express intention of the testator. These rules, thus expounded, lend no support to the opinion of the majority, because the will contains no provision for the division of the property among the heirs [184]*184of Sarah Bledsoe. Ob the contrary, such propeiiy coTtlcf' not properly be divided among the heirs, during the lifetime of Sarah Bledsoe.
A further argument: The rule invoked has no pertinence in determining whether the words “heirs of the body” designate a class of persons who take as purchasers, or are words of limitation, defining the quantum of estate in the first taker. It only obtains between persons, whose right to take as purchasers is shown by the terms- of the instru-mentí- The present will contains none of the words which impart to the phrase heirs of the body the more definite import of children.
The will of Mr. Breedlove gives a vested legacy to the “heirs of'the body of Sarah Bledsoe,” or it gives them nothing.”' It was postponed in enjoyment until the death, first of testator’s widow-, Mrs. Breedlove, and afterwards nntil the death of Sarah Bledsoe. The division of the estate, directed to take place at-the death of Mrs. Breedlove, was not for the purpose of. ascertaining the particular share that should go to each heir of Sarah Bledsoe’s body, but to define the sum out of which the heirs could claim partition at the death of their mother, Sarah Bledsoe. This, then, created no necessity for closing the door against after-born children. In my opinion, the legal questions in this case stand precisely as they would stand, if tbe testator bad bimself perfected the division of his estate, to take effect at the death of testator’s widow, aud had bequeathed certain named property then to go “to'the heirs of Sarah Bledsoe, — she, the said Sarah, to have the use and benefit thereof during her life, but not to sell or dispose thereof.” Thus construed, no one would contend, that the particular class of heirs of Mrs. Bledsoe’s body, who should be in life at tbe death of Mrs. Breedlove, would take as purchasers, to the exclusion of after-born children.
Am argument may be supposed to be predicable on the collocation of the language of the bequest. Tbe clause first gives the property to the heirs of Sarah Bledsoe, and then reserves a life-estate to Mrs. Bledsoe. I am not able [185]*185to perceive any force in this argument. Tbe law regards tbe substance, rather than the form of things. The substance of this bequest is, that Mrs. Bledsoe was to have the use and benefit of this property-during her life, but not to sell or dispose thereof; ’and at her death, the property to go to the heirs of her body. — See Leech v. Cooley, 6 Sm. & M. 98. Thus understood, no one would contend, that %the heirs would be purchasers. — See Britton v. Swinney, 3 Mer. 116 ; Bradley v. Peixoto, 3 Ves. Jr. 324 ; Simmonds v. Simmonds, 8 Sim. 22; Elton v. Eason, 19 Ves. 73; Moore v. Brooks, 12 Grat. 135; Kay v. Conner, 8 Humph. 633 ; Hooe v. Hooe, 13 Grat. 245 ; Ewing v. Standcfer, 18 Ala. 400; Machen v. Machen, 15 Ala. 373 ; 1 Roper on Legacies, 46 et seq.; Elmore v. Mustin, 28 Ala. 309; 11 Geo. 67.
Holding that the term heirs- of the body\ as found in this will, -is no more definite than it would be it it followed the creation of the life-estate in Mrs. Bledsoe, I cannot regard the present complainant as a purchaser.