The opinion of the Court was delivered by
Kennedy, J.
Benjamin Vernor, inter alia, devised by his will in the following terms: “I give and devise unto the two daughters of my deceased brother, John Vernor, arid unto John T. Vernor, the grandson of my said brother, John Vernor, deceased, my plantation or tract of land whereon I now live, situate in Leacock township, hi the county of Lancaster, adjoining land of Thomas Lyon, John M’Casky, Thompson Jacobs and others, and the Philadelphia road, containing upwards of two hundred acres, should it be more or less; to have and to hold the same to them, the two daughters of my deceased brother, John Vernor, and to the said John T. Vernor, their heirs and assigns forever, in fee; that is to say, each of them to have one equal undivided third part thereof.” The testator also, in a subsequent part of his will, directs as follows: “I do order and direct, and hereby authorize and empower my executors hereinafter named, and the survivors or survivor of them, to sell and dispose of by private or public sale, to the best advantage they can, as soon as conveniently and advantageously can be done, after my decease, all my real estate, lands and tenements, with the appurtenances, in such parts or parcels as my said executors, or the survivors or survivor of them may think proper; meaning such of my real estate as I have not hereinbefore given or devised, wheresoever the same may be situate.” And in the close he appoints the plain[201] tiffs executors of his will. They, as such, claim to recover the land devised to the two daughters of the testator’s brother John, on the ground that the devise of it to them is void for uncertainty, there being, at the time of making the will, as also at the death of the testator, three daughters of his brother John; and it being impossible to ascertain which two of the three, if he only intended two, the testator meant to make the objects of his bounty, the devise, as the plaintiffs’ counsel contend, is therefore void ab initio, and the land embraced in it must be considered as forming a part of the residuum of the testator’s real estate, and as passing, by his will, under the residuary clause to the executors, that they may sell and dispose of it in conformity to the direction therein contained. This inference, however, that it would pass to the executors, even if the devise be void, as the plaintiffs’ counsel allege, the counsel for the defendants deny. They contend, and have endeavoured to show, that a testator who has undertaken to dispose of any part of his real estate specifically by a devise thereof, which turns out to be void for uncertainty, cannot be considered as having passed it by his residuary devise; because that would be contrary, as they contend, to his intention, as expressly manifested in the void devise; which, though it be insufficient to pass the land mentioned in it, yet being in the will, it must be taken as part of it, provided it can have any legal effect at all; and being clearly sufficient to show, if nothing more, that the testator did not intend to include it in the residuary devise, it is to be regarded as having the effect of an exception, at least of so much of his real estate therefrom; and therefore, on his death, his heirs at law must be considered as having become the owners thereof by descent.
This court, however, being of opinion that the devise to the two daughters of John Vernor is to be construed as a devise to all his daughters, and therefore not void but good, it becomes unnecessary to decide this latter question; so' that we do not wish to be understood as expressing any opinion upon it.
Then as to the question of uncertainty. It cannot be said there is any ambiguity on the face of the devise. The terms of it would seem, naturally enough, to import that John Vernor, the brother of the testator, had but two daughters, otherwise the testator would have undertaken to have designated the two he meant in some way, that they might be distinguished from the rest, if he had known at the time that there were more than the two. In the absence of all evidence, arising either from the face of the will itself, or otherwise, as it appears to me is the case here, tending to show the contrary, it would also seem to be the only natural, if not indeed, the necessary inference, that can be drawn from the whole structure of the sentence containing the devise, that the testator made these daughters of his brother John, his devisees, merely because they were the daughters of his brother. To repel this, [202] however, a sort of ambiguity has been raised by the introduction of parol evidence on the part of the plaintiffs, showing that his brother John Vernor had left three daughters, who were living at the time of making the will, and also, at the death of the testator. But their it does not appear from this evidence, that the testator had any personal knowledge of any of the daughters of his brother John, or that he had ever seen any of them; indeed, it would rather seem that he had not; nor does it appear, that he would have had any motive for preferring any one of them to the other two, much less any two of them to the third, from which the law presumes, that he intended to give to all of them, and that he inserted a less number through mistake. But, notwithstanding this, it has been argued, that as the testator has by express terms, limited the devise to the two daughters of John Vernor, two, and no more can claim to take; and as it does not appear which two of the three, the testator intended should take, the devise is, therefore, void for this uncertainty. This, however, seems to be straining the words of the will, and the evidence brought in connection with them, beyond their natural import: for it cannot, I think, be fairly said, that the words, “ the two daughters of my deceased brother, John Vernor,” without farther designation' or explication, necessarily mean a less number, than what the testator thought was the whole of the daughters of his brother. These terms, thus situated, as it appears, would rather seem, as has been suggested above, to convey the idea, that two were all the daughters the testator believed his brother John had left; and having no reason that can be perceived, to prefer a part of them to the whole, it renders it highly probable, if not necessarily inferrible by implication, that he intended to give to all, and to make them participate equally in his bounty. If it be highly probable, that such was the intention of the testator, that is enough: it is not requisite that such should appear to have been his intention, either by express words, or those having such necessary implication, as was laid down with regard to his disinheriting his heir at law, in Gardner v. Sheldon, Vaugh. 262, 3. For Lord Chief Justice Willes has shown very clearly, in Fagge v. Heaseman, Willes’s Rep. 140, that even in the case of the heir at law, the rule, that he shall never be disinherited, except by express words, or such as have a necessary implication, is not to be .taken strictly, or it would overturn a great many resolutions: and he exemplifies the truth of his position, by referring to the principle, which has been established by cases and authorities almost without number, that gives to the devisee of real estate the fee-simple, if he be charged with the payment of the testator’s debts, or a certain sum of money in goods, though the sum be not equal to one-tenth part the value of even a life estate, much less a fee-simple in the subject of the devise: and concludes, by saying, “ for though this expression of paying the debts, &c. makes [203] it highly probable that it was the devisor’s intention that the devisee should have an estate in fee, yet it is very far from being a necessary implication.
Now in the present case, the circumstance of the testator’s having used the definite article “the,” in connection with the word “ two,” shows pretty clearly, that he dictated and made his will under the belief that his brother had left but two daughters: for if he had been impressed differently, and had then recollected that there were three, according to what he had been before told, perhaps more than once; and he had only intended to give to two of them, it is difficult, if not impossible to account for his having omitted to designate or describe in some way, the two whom he intended to make the objects of his bounty;' so that they might be distinguished from the third, whom he wished and had determined to exclude. Certainly, the circumstances of the testator’s being a man of more than ordinary cast of mind, and perfectly compos mentis at the time of making his will, as also that of the scrivener, who drew it, being an expert in his art, which has been so repeatedly mentioned and brought to view by one of the counsel for the plaintiffs, does not in the slightest degree tend to remove the difficulty of accounting for such omission, if it was really so; but on the contrary, so far as it can be made to have any bearing on the matter, rather goes to show that the testator and scrivener, possessing more than ordinary intelligence and discernment, could not have been guilty of such a glaring and palpable omission, knowing that John Vernor had left three daughters instead of two. The parol evidence then taken in connection with the scope and tenor of the will proves no more than that the testator made it under the impression that his brother John had only two daughters; and that in giving to them as “ the tioo daughters of his deceased brother John,” he supposed he was giving to all the daughters his brother had left, in which, it seems, he was mistaken as to the number; there being three, instead of -two. Hence, it would appear, that the daughters of the testator’s brother John, are mentioned and treated by him as a class of persons; all standing in the same relation to him; all alike known and dear to him; and all embraced under the same description in the will, to whom he intended to be equally bountiful. But it is objected, that if the devise is to be made good to the daughters, on the ground'that it is given to them as a class, John the grandson will fall within the same class, as he 'is united with them in the devise; and his rights will be affected, contrary to the clear direction of the testator, who has given to him eo nomine in express terms one undivided third part of the whole plantation in fee. It is certainly true, beyond all cavil or dispute, that one equal undivided third part of the whole plantation is given in fee to the grandson, and his right to that extent cannot be impaired, without overturning what must be considered to have been the settled purpose of the testator. But'the grand[204] son, though made by the terms of the devise, a tenant in common with the daughters, and as such, entitled to an undivided third of the plantation, yet he is clearly not included within the designation or description, which embraces the daughters, and therefore, cannot properly, much less necessarily, be said to fall within their class. Then what is there to prevent the remaining two-thirds of the plantation from being equally divided among the three daughters of the testator’s brother John, as a' class ? one-third thereof would seem to have been given by the testator to each of the two daughters, merely because he thought at the time there were only two of them. And even supposing, if he had known at the time of making his will, that there were three, that he would have given three-fourths of the plantation to be equally divided among them, it is certainly no reason why they should not have the two-thirds thereof, which he has given in express terms to the two, believing that that number would embrace all. All the daughters, therefore, of his brother John, seeing they stand in the same degree of relationship to the testator, and come within the same description, as the objects of his bounty, may fairly be considered as forming a class, to each individual of which he intended to be alike generous. The circumstance that the testator has given an undivided third of the plantation in form to each of the two daughters of his brother John, is not to be regarded as an insuperable objection to the presumption here, that he intended to benefit equally, all the daughters of his brother. For in Stebbing v. Walkley, 2 Bro. Cha. Ca. 85, the bequest was of 82 pounds, three per cent, annuities, in trust for the two daughters of Titus Stebbing in equal shares for so much of the term therein as they should live; and if either died before the end of the term, the whole was to belong to the survivor; but if both died before thattime,the legacy was to fall into the residue. Titus Stebbing, however, had three daughters at the date of the will; and Lord Kenyon held, that the three were entitled to take equally. In this case of Stebbing’s, it is also manifest, as in the case before us, that the number “ two” was not inserted through a mere slip of the pen, contrary to the design of the testator; for the whole structure of the sentence, giving the legacy, shows that two was the number intended to be inserted. But as the testator omitted to name them or to describe them, otherwise than as the two daughters of Titus Stebbing, Lord Kenyon felt himself bound by previous decisions, which, in his opinion, established the rule, that from necessity, rather than the legacy should be declared void, on account of the impossibility of discovering which two of the three daughters were intended, it should be presumed that the testator intended to give the legacy to all of them, and that he introduced the number two, under the apprehension that it included all the persons in being of the description mentioned, and the word “ two” therefore, being a mistake, ought to be rejected in reading or construing the will. It is apparent, that the case just cited, runs [205] upon all fours with the present; and that, if it were rightly decided, it sustains to the fullest extent, the decision of the court below. It is true, however, that Lord Kenyon did not seem to be satisfied with the reason of' the rule which governed his decision, but he admitted that it had been too firmly established by previous decisions, to be either set aside or disregarded; consequently, it had become a rule of property which gave it an imperative force. That Lord Kenyon was right in considering the rule, according to which he decided the case before him, settled, appears very clearly from the cases cited on the argument. The first was Tompkins v. Tompkins, settled before Lord Hardwicke, in conformity to his opinion in 1745, where the testator gave to the three children of his sister, 50 pounds each. The sister had four children, and they were all let in; see this case in 2 Ves. 564, and in 19 Ves. 121, in notes. Next come Sleech v. Thorington, 2 Ves. 560, decided by Sir Thomas Clarke, master of the rolls, in 1754. In this case, the testatrix, who had two servants living with her at the time of making her will, but took another afterwards, and had three at her death, gave a legacy of 100 pounds unto the two servants that should live with her at the time of her death, to be equally divided between them; and it was decreed that the three were entitled to receive equal portions of the 100 pounds. Then followed the case of Scott v. Fenhaulet, determined in 1779, first by Lord Bathurst, and again by Lord Thurlow, 1 Cox 79, in which the testator bequeathed to Captain Compton 500 pounds, and the like sum to each of his daughters, if both or either of them survived Lady Chadwick. The captain, however, had three daughters at the date of the will, who survived Lady Chadwick; and it was decreed, that each of the three was entitled to receive a legacy under the will.
Now, it is proper to remark here, that two of these cases were determined before the American revolution, and may therefore have been very properly regarded by the profession here, as binding authority. It may also, therefore, well be, that the rule of construction adopted in these, and followed in all the subsequent cases in England, has been received and observed here in settling and adjusting the rights of property. This consideration, if there were no other, would render it unsafe for us to reject the rule, notwithstanding the reasonableness of it has been questioned by some, and may not be seen by all; because it might affect very materially many innocent holders of property in their right to the enjoyment thereof, hereafter.
But from the views presented by me on the subject, it has doubtless been seen, that I am not one of those who doubt the sufficiency of the reason of the rule, or look upon it as being founded upon conjecture, in regard to what was the intention of the testator. On the contrary, I consider it as having for its basis, the intention of the testator, which is rendered at least highly probable by [206] the face of the will and the parol evidence taken together; and that by means thereof, the intention of the testator is carried into effect, which is the first and great object in the construction of all wills. It is merely correcting a mistake of the testator made manifest, as to the true number of those who appear to have been all alike the objects of his bounty; and this is done either by striking out the number inserted, without more, or by. reading it as if it were written “ all” instead of “ two,” or “ three” as it may happen to be. This is every day’s practice in the construction of wills, in order to effectuate the plain intention of the testator, as for instance “ or” is construed “ and,” and so vice versa. Mr. Roper, who has collated the cases on this subject, lays it down as settled, “that if a testator bequeath to part only of a number of individuals of the same description, and none of them are named nor can be identified, either by the will or by extrinsic evidence, it is to be presumed that he intended the whole class of persons, and was mistaken in the number when confining his bounty to three or four of the class by the insertion of those words. These restrictive expressions are therefore rejected, and the entire number of individuals answering the description are admitted as legatees.”
It has, however, been further objected by the counsel for the plaintiffs, that this presumption cannot be made under similar circumstances, where the gift is a devise of real estate. But there does not appear to be either authority or reason for making sxxch a distinction. In the case of a bequest of personal estate, all the persons of the same description take, because the law under the special circumstances, by a rule of constructioxi, presumes that the testator intended it for them; and why under the same circumstances, the same intention in the case of real estate, ought or cannot be presmned, I cannot imagine. It is the intention of the testator, when ascertained, that is to govern in either case; and it is certainly reasonable, as well as absolutely necessary, in order to make the law consistent with itself throughout, that the same meaning and intention should be ascribed to the testator, when he has used precisely the same words ixr the one case that he has done in the other.
Judgment affirmed.