The following opinions were delivered:
By Chief Justice Savage.
The questions in this case in the natural order in which they arise, are the following;
1. Have the complainants an interest in the estate of Thomas Rogers, senior, deceased, by virtue' of the special devise to their father, Thomas Rogers, junior, or as residuary legatees ?
2. Is the codicil to be considered part of the will of Thomas Rogers, senior, deceased ?
3. Was the sale by virtue of the judgment and execution irregular ?
4. Were the promissory notes referred to in the exception to the master’s report properly rejected as being barred by the statute of limitations ?
5. Should the appellant be held responsible for the personal property delivered to the widow ?
6. Was it equitable and just to charge the appellant with the costs of the suit ?
1. The clause in the will out of which the first question arises is as follows: “I give, devise and bequeath unto my son Thomas Rogers, junior, for and during his natural life and to the children of his body, lawfully begotten, after his decease, all that certain, &c.” (describing the premises) “ to have and to hold the said last mentioned premises unto my said son Thomas Rogers, junior, for and during his natural life, and after his decease, [508]*508to the heirs of his body, lawfully begotten, and to their heirs an(j ass¡gns forever.” What estate is conveyed by this devise? and to whom? Were the answer to these questions to be given by plain unsophisticated common sense, it would be this: that an estate for life is given to Thomas Rogers, junior, and after his death an estate in fee to his lawful children. Such is the apparent intention of the testator ; but it is not enough to ascertain the intention of the testator as we suppose it to have existed ; we must further enquire, whether that intention is agreeable to the rules of law which have been long and well established, and what is the legal import of the terms used by the testator.
It may not be improper to remark here, that by the common law there are but two modes of acquiring title to real estate, viz. descent and purchase. Where a person takes as heir at law, he is in by descent; the law casts the estate upon him at the death of his ancestor; but when he acquires title to land by his own act or agreement, he is a purchaser ; not that in the common acceptation of the term he has paid a consideration for it, for if it is given to him he is still, in contemplation of law, a purchaser. A devisee, who takes an estate different from what the law would cast upon him as heir, is a purchaser, and as such was exempt from the restraints imposed upon heirs in their minority, such as wardships and the right of marriage. These are remnants of the feudal system which have their influence upon the conveyances of the present day, and even in this country, though happily with the system itself we have no connection. It was perfectly natural that during the prevalence of military tenures restraints should be imposed upon devises of real estate; and it was established as a rule of law, at least as early as the 23d Eliz. about 1581, that “ Where the ancestor, by any gift or conveyance, takes an estate of freehold, and in the same gift or conveyance an estate is limited either mediately or immediately to his heirs in fee or in tail, that always in such cases the words the heirs are words of limitation of the estate, and not words of purchase.” This rule was established in Shelley’s case, (1 Coke, 94,) and has been uniformly adhered to in England, and numerous cases are to be found in the books [509]*509as applicable to devises. (Cruise, tit. 38, Devise, ch. 14.) In the case of Perrin v. Blake in the above chapter, § 69, the devise was substantially, “ I give, devise and bequeath all the rest and residue of my estate to my son J. W. for the term of his natural life ; the remainder to J. G. and his heirs for and during the natural life of my said son J. W.; the remainder to the heirs of the body of my said son J. W. lawfully begotten or to be begotten,” &c. The testator had prepared this devise with a declaration that it was his intention and meaning that his heirs should not sell his estate for a longer period than their own lives. The court of king’s bench decided that J. W. took a life estate only, and not an estate tail.
As this case of Perrin v. Blake is not found in books of reports which are common, a more detailed account of it may be acceptable. It was twice argued, and was one of the only two cases in which there had been a serious difference of opinion in the court for a period of fourteen years. The judges delivered their opinions seriatim, and occupied five hours. Mr. Justice Willes said there were two questions; 1. What appeared to be the intention of .the testator ? 2. Was that intention agreeable to the rules of law 1 The intention was apparent from the introductory clause which governed the whole will. If he could give an estate for life to one and the inheritance to the heirs of the body of the first devisee, and if his intention appeared to be so, he should think that intention must control the legal sense of the words heirs of the body. The rule contended for, which was in Shelly’s case, (was pronounced by Lord Coke upon a deed and in argument ; and though he should be for adhering to it in every case literally within it, yet it must not be extended an inch. The maxim itself grew with feudal policy, and the reasons of it were antiquated. The logicians say, cessante causa cessat effectus, and surely the lawer may say I will confine an old rule within its exact bounds, and extend is as little as possible. Mr. Justice Aston said, that the fundamental rule was that the intention of the testator was to be collected and allowed, though not expressed in any legal language. The intention was clear to give an estate for lifeand where the intention is clear, it should govern. He ad[510]*510mitted the rule in Shelley’s case, but it was not to be extended. The word heirs, he said, was a term of art; it was necessary in a deed, but not in a will. Mr. Justice Yates said, he allowed that in a will free scope was to be given to' the intention ; but the intention must be manifestly clear and consistent with the rules of law. After you have fixed the intention, it then becomes a question whether such intention can be executed consistently with the estabished rules of law; if it cannot,- we had better adhere to the law, and let a thousand testators’ wills be overthrown. It had been argued that the intention of the testator must be carried into execution in whatever words he should have explained such intention, but he could not accede to so unbounded a proposition ; that in case of a trust it was so, but in case of a legal devise it will overthrow the established law. He adhered to the rule in Shelly’s case ; and as to intention,- a will shall be so construed as to fulfil the intention so far as is consistent with rules of law. In established rules of contraction consisted the safety and certainty of property ; and this certainty could no longer exist than whilst courts adhered to the established rules of construction. That expressions used in a will must have their legal effect; technical expressions are the measures of property in legal devises, and the law having fixed the meaning will not permit it to be perverted.
Shelly’s case was one of the rules of construction. It had its origin in feudal policy, and though the reason had ceased, it had so long been the law of the land, it must continue such till parliament should interpose ; and that it- was equally applicable to a will as a deed.
Lord Mansfield said, that as the law had allowed a free communication of intention to a testator, it would be a strange law to saw, “ Now you have communicated that intention so as every body understands what you mean; but becausé 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 rperfectly legal, and the only reason for contravening you is because you have not expressed yourself like a lawer ; ” that his examination of the question always convinced him that the legal intention, when [511]*511clearly explained, was to control the legal sense of a. term of art unwarily used by the testator. He agreed that the rule in Shelly's case was clear law, but could not affect this question when the testator’s intention was clearly on the other side.
In the king’s bench judgment was given by the majority of the court that J. W. took an estate for life. A writ of error was brought to the exchequer chamber, where the judgment of the king’s bench was reversed. All the judges gave their opinions seriatim, and there were seven for reversing and one (Ch. J. De Grey) for affirming. Mr. Justice Blackstone seems to have given the leading opinion, which Hargrave has preserved entire, (Har. Tr. 487.) I quote from Cruise, tit. 38, Devise, ch. 14, § 69. He says, “ The great and fundamental maxim upon which the construction of every devise must depend is, that the intention of the testator shall be fully and punctually-observed, so far as the same is consistent with the established rule of law, and no farther.” He goes on to state that there are some rules of law which are great landmarks of property, which no testator can transgress, let his intention 1 e ever so clear—such as the powers incident to the several kinds of estates. Other rules are mere rules of construction to ascertain the intention and meaning of parties, by annexing particular ideas of property to particular modes of expression. Thus a devise to a man generally gives him an estate for life; to a man and his heirs, gives an estate in fee; to a man and the heirs of his body, gives an estate tail.
The rule in Shelley’s case is, that where the ancestor takes an estate of freehold with remainder to his heirs, or heirs of his body, the word “ heirs" is a word of limitation of the estate, and not of purchase; that is, in other words, that such remainder vests in the ancestor himself, and the heir, when he takes, shall take by descent from him, and not as a purchaser. This rule may give way to the manifest intention of the testator, provided that intent be so fully expressed as to leave no doubt whether it was his intent or not; and he held that in that case there was no such plain and manifest intent as to control the legal operation of the words and be consist[512]*512ent with the fundamental rules of law. The question is not whether he intended his son should have only an estate for life ; for he believed there never was an instance where an estate for life was expressly devised to the first taker, -that the devisor intended he should have any more. But if he after-wards gives an estate to the heirs of the tenant for life, or to the heirs of his body, it is the consequence or operation of law that in this case supervenes his intentions, and vests a remainder in the ancestor. The true question of intent would turn, not upon the quantity of estate intended to be given to the ancestor, but upon the nature of the estate intended to be given to the heirs of his body. How did he intend the heirs should take 1 If as .purchasers, that intent should be carried into execution; if as heirs by descent, or if he had formed no intention about the matter, then, by operation and consequence of law. the inheritance vested in the ancestor ; and if the testator had not plainly declared his intent that the heirs should take an estate by purchase, and not by descent as heirs, then the rule of law must operate; for adherence to the rule of law is always presumed until the contrary is proved.
It is said in this case that the words children are words of purchase, and therefore Thomas Rogers, junior, took an estate for life only, and the children took the remainder. On the other hand it is contended that the whole devise must be taken together, and that the habendum clause is to explain, enlarge, lessen or qualify, though it cannot totally contradict or be repugnant to the estate granted in the premises; (2 Black. Com. 298 ;) that the devise in this case is imperfect without the habendum. An estate for life is clearly given to T. R. jun., but what estate is given to the children is not expressed in the premises, but is explained and enlarged by the habendum. By the premises a life estate at most in the children is created ; but by the habendum it is shewn that an estate in fee was intended to be given, and is to the heirs of his body lawfully begotten. The children of T. R. jun. named in the given premises, are the heirs named in the habendum. There is, therefore, no repugnance between the premises and habendum; but both stand well together, and are not at all [513]*513inconsistent; and that under the rule in Shelly’s case the devise in question gave to T. R. jun. an estate tail, which, by our statute, is converted into an estate in fee simple absolute. (1 R. L. 52.)
The authorities are numerous to shew that where an estate is devised to a man and his heirs, or to the heirs of his body, if the devisee die before the devisor, the devise is void; (4 T. R. 603, and cases there cited;) 'and the reason is because there is no person to receive the estate when it passes from the devisor at his death. The devisee being dead cannot take. His heirs cannot take; for by the devise itself they cannot take the estate as purchasers, but by descent only, through their ancestor; and his death precluding the possibility of his taking, prevents them from taking. (1 Pr. Wms. 398.) There are, however, many cases arising upon wills, where the true intention of the testator has been permitted to prevail, where the word heirs is so connected with or explained by the context, as to shew that it was not the intention of the testator to use the word heirs in its technical sense, as a word of limitation. In Doe v. Goff, (11 East, 617,) Lord Ellenborough says, “ heirs of the body” are undoubtedly prima fade words of limitation, but they may be construed to be words of purchase where it is clearly so intended ; and in that case he held that the words “ heirs of her body” were equivalent, under the devise in that case, to diildren or issue of her body, and therefore to be construed words of purchase. In Lessee of Findlay v. Riddle, (3 Bin. 148,) the testator devised certain lands to John Findlay during his natural life, and after his decease, if he shall die leaving lawful issue, I give and devise [the premises] to his heirs, as tenants in common, and their respective heirs and assigns forever. It was held that John Findlay took only an estate for life, and not an estate tail. The rule in Shelly’s case, and its application to such a case were considered, and the court felt themselves warranted in construing the word heirs as diildren and a mere designatio personarum. The testator in this case uses the word diildren in the premises of this devise, and. heirs of his body in the habendum. We may therefore [514]*514consider the latter words used by him to designate the pefsons named in the premises. If so, then an estate for life only was given to T, R. jun. and a remainder to the children of T. R. jun. after his decease, and of course the remainder vested in the children of T. R. jun. at the death of the testator. The testator intended to give Thomas a different estate from that which he gave to his son James ;
2. Is the codicil to be considered part of the will ?
In the bill the complainants charge that if any codicil was made, it was prepared by Halsey Rogers, and signed by the ■testator when he was totally incompetent to make any testamentary disposition of his estate, and therefore it is void and should be set aside as fraudulent. In his answer, the appellant sets up the codicil as fairly and properly executed by the testator, he being then of sound mind and memory. Witnesses were examined as to its execution, and it appears that the paper was actually signed by the testator; but the balance of testimony certainly is, that he was incompetent at the time to transact any business. Chancellor Sandford .must have held it to be void, though he has not said so in terms in his decree. It is now objected that it is not competent for a court of chancery to set aside a will or codicil on the ground of fraud, or incompetency of th.e testator, but that that question should be determined in a court of law on' [515]*515an issue from chancery of devisavit vel' non ; and such I apprehend is the general, if.not invariable practice of the court in cases of real estate. Fraud* as to a will of personal estate. in Etigland, belongs to the jurisdiction of the spiritual court. ' (2 Rob. on Wills, 30. In this state, however, it is a proper subject of inquiry in the court of chancery. In Pemberton v. Pemberton, (13 Ves. 297,) Lord Eldon, on a motion to grant a new trial on an issue of devisavit vel non, said that the administration of equity in case of a will is very different from other cases, upon most of which equity determines upon inferences of facts as well as doctrines of equity. “ But the authority to declare what is and what is not a man’s last will is denied to this court.” And to support this principle, Kenrick v. Bransley, (3 Brown’s P. C. 358,) is cited, where a will of both real and personal estate had been held to be void on the ground of fraud in the court of chancery ; and on appeal to the house of lords the decree was reversed, on the ground, as is inferrible from the arguments of counsel, that the jurisdiction of deciding upon the validity of wills, whether obtained by fraud or not, so far as they relate to personal estate, belongs to the ecclesiastical court; and so far as they relate to real estate, belong to a court of law. And so this case was understood by Lord Chancellor Rosslyn, in Ex parte Fearon, (5 Ves. 647.) The same point was adjudged in 2 P. Wms. 270. (2 Atk. 324.) That an issue is the proper practice of the court of chancery has been declared by the late Chancellor Kent, in Van Alst v. Hunter, (5 Johns. Ch. R. 148.)
The codicil in this case makes material alterations in the disposition of the property of the testator, but does not effect" the devise to Thomas Rogers, junior, only by giving the executor power to sell real estate for the payment of debts-That power, however, does not appear to have been exer" cised by him. It seems to me, therefore, that there was no error in omitting to award an issue to determine the competency of the testator; nor does it appear that an issue was asked for by either party.
3. Was the sale by virtue of the execution regular ? It is charged in the bill, that no consideration was paid for this [516]*516judgment, and that it was obtained with a fraudulent intent of sacrificing the property of testator after his death. The-fact, however, appears far otherwise. The testator had bejudgment, and that it was obtained with a fraudulent intent of sacrificing the property of testator after his death. The-fact, however, appears far otherwise. The testator had become indebted to his son James and gave his bond which was prosecuted by the executors of J ames, and the present, appellant procured an assignment of it, at the request of his father, the testator ; and, so far as motives appear, for the commendable purpose of preventing a sacrifice of his father’s property.
There is no evidence of any actual fraud in the sale, but the propriety or impropriety of such a sale must depend upon the general question, whether a trustee can be permitted, under any circumstances, to sell the trust property and become a purchaser at such sale. In the case of Davoue v. Fanning, (2 Johns. Ch. R. 252,) Chancellor Kent has reviewed the English cases, in which the rule has been long established that a trustee shall not be permitted, unless by leave of the court of chancery, to purchase the property of his cestui que trusts. This case indeed is unlike in its circumstances to those cases, but it seems to me not distinguishable in principle. The appellant, as executor, had the administration of the personal estate, and had that been sufficient for, the payment of the debts of the testator, the duties of the executor, in character of trustee, would have been confined to the personal estate ; but by statute, when the personal estate is insufficient to pay the debts, it becomes the duty of the executor to make sale of the real estate, or so much thereof as shall be sufficient for that purpose, under an order of the surrogate. When it is ascertained that the personal property is insufficient to pay the debts, the executor’s duty makes him, by virtue of his office, a trustee for the devisees and creditors. So far as the personal estate is concerned he may retain his own debt, and he shall be preferred to other creditors of an equal grade; but when the real estate is to become assets and applied to the payment of debts, there is no preference, no distinction between specialty and simple contract debts. Had the appellant declined the character of executor, he might undoubtedly have pursued his remedy under his judgment and execution ; but he should [517]*517not be permitted as creditor to sacrifice, for his own benefit, that very property which his duty as executor requires him to protect, and dispose of to the best advantage of those entitled to the estate.
■ The case of Sheldon v. Sheldon (13 Johns. R. 220,) is an authority for this proposition, that he who undertakes to act for another in any matter, shall not, in the same matter, act for himself; therefore a trustee to sell shall not gain any advantage by being himself the person to buy. I am of opinion, therefore, that the sale by the sheriff was improper, and was correctly ordered to be set aside.
4. Were the notes barred by statute properly rejected by the master 1 Two of the rejected notes bear date in 1805, and the third in 1809, more than six years before the testator’s death. An objection was taken before the master that these notes were barred by the statute of limitations, which objection was allowed, and the notes rejected.
It is not do .lied that an executor has a right to retain his own debt; this right of retainer arises from necessity ; for as a person cannot sue himself, it follows that where the same person is both creditor and debtor, he must retain, or lose his debt. This right of retainer, being for the benefit of the executor, should not place him in a better situation than other creditors as to the kind of debts which he may retain. He can therefore not retain a debt which he could not recover if he stood as creditor simply, and not executor. The doctrine contended for, however, claims that the provision in the will for the payment of all just debts, revives every demand against the testator. This question has been long agitated in England where there are dicta on both sides, and it seems, so late as 1813, to have been a vexed question ; but in the case of Burke v. Jones, (2 Vesey & Beames, 278,) the vice chancellor, Sir Thomas Plumer, has given the question a most elaborate investigation, and reviewed all the cases; and after having done so, he remarks : “ I have now gone through all the cases that are to be found in print or manuscript upon this important question; and the result is, that there is not one in which this doctrine has been established to the full extent that has been contended ; that it rests sim[518]*518ply upon dicta opposed by dicta, and has been disapproved by every judge from the time of Lord Hardwicke; that it is contrary to the decision in Legastick v. Cowne, (Mosely’s R. 391,) and to the final decision in Lord Strafford’s case, followed by the ultimate decision of Lord King, who first' determined that case, and substantially contradicted by every subsequent authority.” The fair interpretation to be given to such a clause in a will is, as is remarked" by the vice chancellor, that such debts are to be paid as shall turn out to be' just debts. The executor is to take the' ordinary course in the investigation of them under the direction of the courts- of law and equity. Lord Redesdale, (1 Sch. & Lef. 109,) has laid down a rule which has received the sanction of the vice-chancellor of England and of Chancellor Kent,. (6 Johns. Ch. R. 294.) It is this: “ That a device in trust for payment’ of debts does not prevent setting up the statute if the time had run before the testator’s death ; for if it has run in' the life of the testator, the debts are presumed to be' paid : but where' a provision is made by will for the payment of-debts, the statute-does not run after the death of the testator; it is an acknowledgment of the debt.” That is, every demand- which was a legal one at the death of the testator shall be paid"; but-a debt barred by the statute in the life of the testator is presumed to have been paid by him, and therefore is not a legal demand or a just: 'debt. This seems to be a fair and equitable construction of such a clause. It has received the sanction of high authority, and is not opposed by any adjudication. If should therefore, in my judgment; be considered the law of the land. The decision of the master was therefore correct, and the second exception was' properly disallowed.
5. Was the appellant properly charged with the property delivered to the widow l The rule of law undoubtedly is, that the personal estate shall be first applied in the payment of debts before* the real, even where the testator expressly directs the real" estate to be sold for" that purpose, (Toller, 417, 18.) Nothing but an express declaration or plain manifestation' of intention will exonerate the application of the personal estate before the real. (18 Ves. 138.) Chancellor Kent [519]*519says: (i It is too well settled to be questioned, that the personal estate is to be first applied to the payment of debts and legacies, and that a mere charge on the land will not exonerate the personal estate, nor any thing short of express words or a plain intent in the will of the testator.” (3 Johns. Ch. R. 319.) These authorities are express, and are not contradicted. There is nothing in the will itself which gives the executors power to sell the real estate. The codicil gives that power, but even that contains nothing to shew the intention of the testator that the land should be sold before the personal estate was exhausted in the ordinary course of administration.
6. The only remaining question is, whether the appellant ought to have been charged with costs. The question of costs rests in the sound discretion of the court. A trustee will not, in general, be charged with costs, unless there has been corruption or gross negligence. (6 Johns. Ch. R. 411.) In this case, I cannot say that any thing like fraud has been proved. The appellant proceeded to collect his.judgment, as he supposed he had a right to do, by selling the land upon execution at public sale; and he might well suppose, as it was manifest, that the real estate must'he sold in some way, that it might bring as much at sheriff’s sale as if sold by order of the surrogate, or by himself under the power in the codicil. When the complainants were dissatisfied, he shewed every willingness to explain all his conduct in the course of his administration;1 and before the bill was filed, he offered to give up his purchase of the real estate if the other heii;s would pqy him their several portions of his just claims against the estate. This offer was rejected. When called on by Cotton, on behalf of the complainants, he denied their right to the lot, but offered to render an account of the estate, and a time was appointed for that purpose, but the complainants never attended. I can see nothing in the conduct of the appellant to shew any intention to sacrifice the property. It was indeed sold for much less than its value, and so it probably would have been if sold by order of the surrogate; but in that event the executor should not he held chargeable [520]*520with fraud from such a circumstance. It seems to me, therefore, that the costs should have been paid out of the fund.
On the whole case, therefore, I am of opinion that the children of T. R. jr. took an estate in fee in the property specifically devised to him, and that the chancellors were correct, 1. In setting aside the sale by the sheriff as contrary to law ; 2. In disallowing the second exception, and thereby excluding the notes barred by the statute; 3. In charging the executor with the whole of the personal property, not excepting that specifically devised to the widow; 4. In rejecting the codicil, as it had no effect in determining the rights of the complainants. But I am of opinion that the costs should not have been charged to the appellant but to the fund, and that therefore so much of the decree of the chancellor as charges the appellant with costs ought to be reversed, and that the residue thereof should be affirmed.
By Mr. J ustice Mabcy.
The form of the devise to Thomas Rogers, junior, is somewhat unusual. It has a clause corresponding to what is called an habendum in a deed, and the difficulty in expounding it arises, I apprehend, from an apparent discrepancy between the premises and the habendum clause. If the language of this clause had conformed to that used in the premises, Thomas Rogers, junior, could have taken only an estate for life, and at his decease his children would have taken the property devised to him, not as his heirs but as devisees under the will of their grandfather; and if the language in the premises had been like the habendum, he would have taken, if he had survived the testator, a fee, and his children could have derived no title to the property mentioned in the devise otherwise than through him. They must have taken by descent in the latter case, and not by purchase as in the former.
It must be assumed that the testator intended that those who took should hold; the word heirs in the habendum must therefore be construed to mean what the word children does in the premises. I am not about to enter on the considerar tion of that boundless theme of discussion, the rule in Shélly’s case, or rather the application of it, because I do not imagine that this case necessarily involves many of the nice [521]*521distinctions which so often attend the application of that rule. The rule itself is not now, perhaps lias never been, since it was first laid down, much in dispute, although it is admitted that the reason on which it was founded has long since ceased to exist. It has been expressed in language somewhat various by different judges and lawers, but its import is alike understood by all. In Coke’s report of Shelly’s case it is stated in these words : 11 Where the ancestor, by any gift or conveyance, takes an estate of freehold, and in the same gift or conveyance an estate is limited either mediately or immediately to his heirs in fee or in tail, that always in such cases the heirs are words of limitations of the estate, and not words of purchase.” (1 Rep. 104 a.) It is thought by an eminent elementary writer to be more precisely and clearly expressed by Sergeant Glynn, who says that “ in any instrument, if a freehold be limited to the ancestor for life, and the inheritance to his heirs either mediately or immediately, the first takes the whole estate ; if it be limited to the heirs of his body, he takes a fee tail ; if to his heirs, a fee simple.” (1 Prest. on Est. 265.) It may be proper here to remark, that our statute abolishing entails turns every fee tail into a fee simple.
In a legal sense, the word “heirs” is ex vi termini a word of limitation, and is of a( different import from the words ' “ child ” or “ children,” “ son ” or “ sons,” or “ issue,” which signify a description of persons who usually take under a will or deed as purchasers. Notwithstanding the technical mean • ing of these terms when introduced into legal instruments is well settled, it frequently happens that the words child or children, sons or issue are construed to be words of limitation, and I believe more frequently, the words heir or heirs are taken to be words of purchase. Why have the same words of well ascertained technical meaning received a different interpretation ? The only answer that can be given to this question is, that the intention of the testator has appeared so manifest by other words used along with these that the technical signification could not be given to them without defeating that intention. It is true, we arrive at the intention of the testator by-means of the words he uses, and we arrive at the meaning of [522]*522words which have various significations by their context ; these changing significations given to the same terms arise from the- application of well established rules of interpreting devises. Lord Hale says, that the true ground of decision is the intent, ánd the true question is, what is the intent ? and the interpretation is to shew the intent. (1 Vent. 214.)
Some of the cases to which the rule in Shelly’s case has been applied, have violated, it is supposed, this canon of interpretation. The case of Coulson v. Coulson, (2 Str. 1125, 2 Atk. 246,) and that of Perrin v. Blake, (4 Burr. 2579.) first decided in the king’s bench, and subsequently reversed in the exchequer chamber, are of the description of cases wherein thé courts have allowed the intention of the testator manifestly appearing in his will to be overruled, by adhering pertinaciously to the technical meaning of the word “ heirs.’’ There are many others, such as Long v. Laming, (2 Burr, 1100,) and Bagshaw v. Spencer, (1 Ves. sen. 142,2 Atk. 517,) where heir or heirs have been construed to be words of purchase. The signal failure, after all the mighty efforts which have been made to draw a clear line of distinction between those cases which admit and those which exclude the application of the rule in Shelly’s casé, is to be traced, I think, to añ irrecoiicileable conflict between two canons of interpretation—between that which requires the intention of the testator to be effectuated, and that which adheres to the technical meaning of legal terms in manifest opposition to- • that intention. This confusion or uncertainty is probably to bé ascribed as much to the intrinsic difficulty of the subject as to- any striking defectiveness in the rules. The remarks of Mr. Christian,- the learned editor of Blackstone’s Commentaries,- on this subject, appear to me to be exceedingly just. He says, that “ where technical phrases and terms of art are used alone by a testator, it is fair to presume he knew1 their artificial import and signification, and that such was his will and intention ; but when he happens to introduce them, and at the same time in effect declares that, ‘ I do not intend what conveyancers understand by these words, but my intention is to dispose of my estate directly contrary to the construction put upon them,’ courts of justice are or ought to be [523]*523as much at liberty, or rather under an obligation, to effectuate that intention as far as the law will admit, as if it had been expressed in the most apt and appropriate language.” (2 Black. Com. 381, note.) Mr. Justice Buffer, ydio, I believe, has gone about as far as any judge in fayor of setting up the technical meaning of terms against the testator’s in- . tention, admits that this intention must prevail. He repeats and adopts the language of Lord Hardwicke, that “ there can be no magic or peculiar force in certain words'more than others,” and that “their operation must arise from the sense they carry.” He further remarks, in the case of Hodgson v. Ambrose, (Douglass, 338,) that “there is no better rule established than that the intention of the testator expressed in his will, if consistent with the rules of law, shall prevail. That is the first and great rule in the exposition of all wills, and it is a rule to which all others must bend.” Lord Alvanley made some remarks in the case of Poole v. Poole, (3 Bos. & Pul. 627,) on the subject of interpreting devises, which appear to me to be fuff of sound law and good-sense. “ But it appears to me, (he says.) that in construing limitations of this sort, the courts have never deviated from the general rule which gives an estate tail to the first taker where the devise to him is followed by a limitation to the heirs of his body, except where the intent of the testator has appeared-so plainly to the contrary that no one could misunderstand it.” Again, he says, in the same case, “ I take the rules respecting the construction of words in a will to be plain and well settled. Words are always to be taken in their ordinary sense, unless the testator has demonstrated an intention to put a different sense upon them.” Lord Mansfield, after an able and extensive review of the cases in which similar terms have been differently construed to meet the intention of the testator, concludes that “ There is no rule of law that prevents heirs being taken as purchasers, where the intention of the testator requires that they should do so.” After all that has been said upon this subject in the numerous cases to be found in the books, we are ultimately sent back to the will itself, with directions to search it for the testator’s intent, and in doing this to give to ordinary words their ordinary acceptation, and to legal [524]*524phrases their technical import, unless we thereby overrule the testator’s meaning otherwise clearly manifested. In cases of probable or doubtful intention, legal terms are to have their legal signification ascribed to them.
I will now consider the devise to Thomas Rogers, jun. with a view to see if the intention of the testator is not so plain that no one can misunderstand it. If we look only at the premises of the devise, we shall see that no language could have been selected to express more clearly than that which the testator, has used, an intention to convey only a life estate to his son Thomas. The property is given to him for and during Ms natural life, and after his decease to the children of Ms body lawfully begotten. This is uncommonly explicit ; probably no language could make it more so. What is there in any other part of the will to abrogate this devise, and defeat an intention. so plainly and so appropriately expressed ? The habendum clause drops the word children, and substitutes therefor the word heirs. By that clause, Thomas Rogers, jun. is to hold for and during his natural life, and after his decease the property is to go to the heirs of his body lawfully begotten, and to their heirs and assigns forever. If I do not mistake the use and the effect of the habendum, it cannot defeat what is done by the premises. This clause, as has been before observed, is not usually found in a devise distinct and separate from the premises; but where it is so found, it is not, 1 presume, to have a greater effect than in a deed. In a deed it can never defeat the grant; it may enlarge, qualify and abridge it, but so far as it is repugnant to the premises it is void. (4 Cruise, tit. Deed, ch. 20, § 77.) Land given in the premises of a deed to a person and his heirs, habendum to the grantee for life, the habendum is void. (Plowden, 153.) Cruise says, “ The words inserted in the habendum for the purpose of shewing the quantity of the estate intended to be given, are called words of limitation in contra-distinction to the words in the premises by which the lands are given, and which are called words of purchase.” (4 Cruise, 229.) The limitation here mentioned refers to the estate, and not to the grantees, though their names are usually repeated in the habendum.
[525]*525The office of the premises in a deed of feofment, as Lord Coke says, is to express the grantor, grantee and thing to be granted, and the office of the habendum, is to limit the estate. (Buckler’s case, 2 Rep. 55, a.) Where the habendum contains a person not named in the premises as grantee, such person is, generally speaking, a stranger to the deed, and can take nothing under it. (4 Cruise, 226.) These authorities disclose fully and clearly the office of the habendum; its appropriate use is to regulate the tenure of the thing given, but not to designate the persons Who are to take, and we have seen in one instance that it was held void, because it was repugnant to the premises in what related to the tenure of the estate. The premises gave a fee, the habendum a life estate, and the grantee was adjudged to be entitled to a fee. If it is not permitted to control absolutely in what relates particularly to its office, a fortiori, it will not control those things to which it was not designed to have any particular relation. If lands are limited to A. for his life, remainder to his first and other sons and the heirs of their bodies, or remainder to the child or children of A. and the heirs of their bodies, no more than a life estate will vest in A., and the words son, child, or issue will be construed words of purchase. (Cruise, tit, 32, ch. 22, § 28. Apply this doctrine, which is too well established I apprehend to be controverted, to the devise we are now considering. By express words the land is given to Thomas Rogers, junior, for and during his natural life, and after his decease to his children. The word children, in its legal sense, is a word of purchase, and the same rule of interpretation applies to it that is applicable to the word heirs. We are required to go as far in order to give a legal sense to the one as to the other. If they are in direct opposition to each other, they neutralize the force of the rule; in that case we should be at once relieved from all embarrassment, and should not hesitate to pronounce the testator’s meaning to be what he said it was, that his son Thomas should take the property for and during his natural life, and his children after him. There is nothing in the other parts of the devise or the will that indicates to me the slightest intention in the testator to use the word children in any other sense than that [526]*526of its legal import, except what may be inferred from the language of the habéndum; but we have seen that this clause has nothing to do in pointing out the persons who are to hold; ^ only designates the tenure by which they shall hold.
I have already adduced an authority to shew that where a fee is given in the premises, the habendum cannot defeat it. So where the land is given to two, habendum to one for life, remainder to the other for life, the habendum is void. (4 Cruise, 228.) This proceeds undoubtedly upon the principle, that what is completely and effectively done in the premises can not be defeated by the habendum. It should not be forgotten that the children of Thomas Rogers, junior, are as clearly designated in the premises to be devisees as their father is. To make this matter clearer, if possible, let us suppose that instead of the -children being named to take the estate after the death of their father, a third person had been inserted, would the omission of his name in the habendum have defeated the devise to him ? Placing myself upon the authorities, I do not hesitate to say it would not; 'and if it would not in such a case it would not in the case of the children. Where the premises and the habendum are equally clear, the former will not be controlled by the latter, but both will be allowed to have an operation. (4 Cruise, 229.)
It is not my intention to intimate that the habendum should be overlooked; it is as much a part of the devise as the premises, that they should be viewed together : ex antecedentibus et consequentibus Jit optima interpretaiio. It is a rule both in law and equity, so to construe the whole deed or will that every clause shall have its effect. If in pursuance of this rule of interpretation we attempt to make the two clauses.of the devise harmonious, we utterly fail by considering the word children as synonomous with the word heirs in its technical sense. Such a construction of that word renders the clause, “ fo,r and during, his natural life and to the children of his body lawfully begotten after his decease” in the premises, .and the clauses, for and during his natural life and after his decease,” and also “ to their heirs and assigns forever,” in the habendum wholly inoperative and useless; for neither of them is necessary to give a fee to Thomas Rogers, junior. [527]*527These or nearly all of them are important and effective words, and could not, in my opinion have been introduced ás mere formal language. This is made quite evident by looking to the subsequent devise in-the will. It is placed beyond a reasonable doubt by the different phraseology used in the two devises, that the testator meant to give an estate to his son James different from that which Thomas was to take; yet if the woid children is to be taken as synonymous with heirs, the kind of estate given by each will be the same. This striking difference of language in a matter where uniformity of intention generally begets uniformity of language, can only be ascribed to a difference of intention.
I admit that the language in the habendum, if in the premises, Would convey, according to the rule of construction Which prevails in England, an estate in tail, which, by our statute, would be instantaneously converted into a fee simple; yet there is enough to shew, even in this language, that such a construction would be against the intent of the testator. Unless a life estate was contemplated, the woi’ds in the habendum “for and during his natural life,” are useless and senseless. Such, also, Would be the case with the Words in .the same clause, “ and to their heirs and assigns forever,” unless we suppose the testator intent upon creating an estate abhorred by the policy of our government and abolished by our laws, an estate tail.
But suppose we do what, by acknowledged rules of construction, is to be done when the intention of the testator demonstrates the necessity of it, convert the word “ heirs” in the habendum into a word of purchase, all the difficulties will at once vanish; then no phrase used by the testator is inappropriate, no word is useless. This may be, and indeed'is to be done, according to the opinions of Lord Alvanley and Lord Mansfield, where it is necessary to carry into effect the intention of the testator rendered so plain by other parts of the devise or Will that no one can misunderstand it. This intention is demonstrated as clearly as any thing that regards human intention can be demonstrated. It is demonstrated by the uncontradieted and Unrevoked declaration, that Thomas Rogers, junior, shall take for and during his natural life, [528]*528and that his children lawfully begotten shall take after his decease. By construing the word “ heirs” in the habendum to be a word of limitation, we shall defeat what all, I believe, will acknowledge to have been the evident intention of the testator; we shall render several phrases used by him inappropriate and useless, in violation of a known rule of construction ; we shall, in effect, strike out of the devise the word “ children,” or strip it of its legal import, for which it has as just and strong a claim as the word “ heirs;” and we shall make the testator create against his intention an estate tail, which is not known to or tolerated by our laws. On the oth- . er hand, by construing the word “ heirs” in the habendum to be a word of purchase, we carry into effect what is, in my view, the demonstrated intention of the testator; we assign * an appropriate meaning to all the language he has used, and make every part of the devise harmonize.
By the foregoing views I am brought to the conclusion, that the devise to Thomas Rogers, junior, was intended to give, and in fair construction of law could give only a life estate to him, and the remainder was intended to go to his children in fee. The son dying before the testator, the devise to him lapsed, but his children take, not by descent from him, but under the will as the designated objects of the testator’s bounty.
As to the other questions in the case, Mr. Justice Marcy expressed, generally, his concurrence in the disposition made of them in the opinion delivered by the Chief Justice.
Mr. Justice Sutherland concurred in opinion with the Chibe Justice, and particularly expressed his concurrence in the views of Mr. Justice Marcy on the question of the construction of the devise.
By Mr. Senator S. Allen.
1. In my view of the subject, the decree which set aside the sale under the judgment was correct. No necessity existed for the sale of the land by execution ; the estate being amply sufficient for the payment of the debts of the testator, including that due Halsey Rogers, he ought, as executor, to have adopted the remedies pointed out by the chancellor, by which not only his interest would [529]*529have been secured, but also that of others for whom he was acting as trustee.
2. The disallowance of the three notes of hand, on the ground that they were outlawed, in my opinion was incorrect. The statute is no bar where there are circumstances unrebutted to take the case out of its operation. (Kane v. Bloodgood, 7 Johns. Ch. R. 360.) What are the circumstances in this case 1 The transaction was between the father and his son, and a son too, upon whom the father appeared principally to rely. The execution of the notes was proved to the satisfaction of the master, and there appears no evidence to disprove the fact that the debt was justly due the appellant. The frequent loans in money made by Halsey Rogers to his father, the charges for which were also rejected by the master in the first instance, though afterwards allowed, are evidence, presumptive at least, that the notes were unpaid. Halsey Rogers had no reason to suppose that his father would take advantage of the act of limitation, and it would have been indelicate in him to have harbored such a suspicion, or to have shewn it, by requesting a renewal of the responsibilities ; he was the sole executor or trustee of the estate, and if these notes had been held by any other person, and he as executor had promised to pay them, although they might, previous to such promise, have been barred by the statute, such promise would have renewed the debt. (Smith v. Ludlow, 6 Johns. R. 267. Johnson v. Beardslee, 15 Johns. R. 3.) and if so, why may not Halsey Rogers, as executor, have made a promise to the above effect to H. R. as creditor of the’estate. My conclusion is, therefore, that the debt is just, and that the notes ought to be allowed with interest.
3. As to the charge against H. Rogers of $528,25 for timber cut and rent recei ved, on the lot devised to Thomas Rogers, junior. Being of opinion, that the sale of the land under the the judgment was illegal, and as Halsey Rogers will be allowed interest on the debt due him on that judgment, it is but justice that he should repay the money he may have received, both for the rents and the products of the land thus devised.
[530]*5304. The exception taken by the appellant to the master’s rep0r^ charging him with the sum of of $703,16, the value .óf the household furniture and other personal estate bequeathed ^y the testator to his widow, and left by the appellant in her possession, appears to me to be well taken and that it ought to be sustained.
Whenever the intention of the testator can be fairly ascertained, such intention ought to be carried into effect. That it was the intention of Thomas Rogers, senior, to leave his widow the full enjoyment, use and benefit of his household furniture, &c. during her natural life, cannot be disputed ; and yet the effect of the decree is, to deprive her of such use at the end of one year after the death of her husband. It appears to me also, that the fact of executing a codicil to the will is an evidence of this intention ; for it is pretty evident» from the exhibit of the situation of the testator’s affairs at his death, that between the making of the will in 1803 and of the codicil in 1816, the circumstances of the testator had materially altered. In 1803 the personal estate, over and above what was bequathed to his wife, may have been sufficient for the payment of all the debts he owed, or what he may have thought he was likely to owe ; and therefore he deemed it unnecessary to give any authority to his executors to sell his real estate for that purpose : but, in 1816, it appears these debts had increased to a considerable amount, and finding that his personal estate, over and above what he had bequeathed to his wife, would be insufficient, he authorized his executor by the codicil to his will, to sell and dispose of so much of his real estate as would be necessary for the payment of his debts.
My opinion therefore is, that the several decrees of the court of chancery ought to be arffirmed, except so far as they disallow the payment of the three notes with interest, due from the estate of Thomas Rogers, deceased, to Halsey Rogers, the executor of his estate, and except so far as Halsey Rogers is charged with the personal property left by the testator to his widow; and that the decrees be modified accordingly.
The devise to James follows the devise to Thomas, and is in these words : “ Fourthly, I give, devise and bequeath unto my son James Rogers, and to his heirs and assigns, all that certain piece or parcel of land, &c. (describing the same) containing 300 acres, to have and to hold the said last mentioned premises, unto my said son James Rogers, his heirs and assigns, to his and their own proper use and behoof forever.”