R. W. WALKER, J.
The donor employs three different expressions, (all having different significations, if technically understood,) to designate the same persons— to-wit, at one place “children," at others, “heirs of the body,” and at still another, “an heir.” This circumstance-very clearly indicates, that the instrument was prepared by a person- not familiar with the precise- meaning of the-technical phrases employed ; and in construing it, much greater latitude is-allowable, than would be indulged in the construction* of a deed bearing upon its face evidence of having been* drawn by one who was accurate in the use, and acquainted with the legal effect, of the particular expressions to be found-in it. — 22 Ala. 438; 20 Ala. 710. We think that the words “heirs of the body,” and “heir,” as employed in this deed; are so explained by the context, as to show that they were used as synonymous with children. — Robertson & Pettibone v. Johnston, in MS.
The rule of construction commonly known as the rule in “Wild’s case,” is, that where lands are devised to a person and his children, and he has children at the time the will is made, and at the death of the testator, the parent and children living at the testator’s death take -jointly under the will; but, where-the devise is to one and his children, and he has no children at the date of the will, or at the testator’s death, the parent takes an estate-tail. — 6 Coke’s R. 17; 2 Jarman on Wills, 307-8, and cases there collected; Nimmo v. Stewart, 21 Ala. 691; Furlow v. Merrill, 23 Ala. 716.
If this rule is applicable to will's of personal estate, a bequest to A. and his children.,- there being no children in esse at the time, would, as a- general proposition, give to the parent the absolute interest, according to the fami[29]*29liar 'doctrine that the same terms which, when employed with respect to real estate, create an estate-tail, carry, if used in a bequest of personalty, the absolute property. !u the English courts, it has been occasionally questioned whether the rule in Wild’s case is applicable to wills of personalty. — See Paine v. Wagner, 12 Sim. 188; Stokes v. Heron, 12 Cl. & Fin. 161; 2 Wms. Exrs. 937. But our decisions seem to settle it as the law in this State, that in this respect no distinction is to be recognized between devises and bequests ; and that where property, whether real or personal, ds 'limited to one and his children, there being no children, either when the will is made, or when it takes effect, the general rule is, that the absolute property vests in the patent. — See Vanzaut v. Morris, 25 Ala. 292; McCroan v. Pope, 17 Ala. 617.
There can be no doubt, however, that in both of the cases which have been mentioned — that is to say, where there are children in esse, and also where there are none —slight indications in the context, of such an intention on the part of the testator, have frequently been thought sufficient to justify courts in .holding, especially in bequests of personalty, that the parent shall take far life, with remainder to his children, including herein all the children that may bo born before the termination of the parent’s life-estate. The chief reason for such an inclination on the part'of the courts, where the gift is to one and his children, there being children in esse at the time, is, that the other construction, resulting from .the application of the first branch of the rule in Wild’s .case, by confining the gift to those children who ar,e living at-the testator’s death, excludes entirely all those born after that event. Another reason which'has been suggested .is, that the children, -if tenants in common with the .parent, .might, on arriving at ago, demand a partition, and thus deprive the parent, who in these eases is frequently, if not-usually, the primary object of the testator’s .bounty, crffihe means of support in old age. — Chesnut v. Meares, 3 Jones’ Eq. 417.
Where there are no children in esse at the time filio gift .takes effect, the general rule, -.which wests dhe, .absolute [30]*30estate in the parent, has, in some instances, been treated as even less stubborn, and still more easily turned aside by the force of slight additional expressions in the will. Indeed, the Kentucky court of appeals has, in a recent case, and in a well considered opinion, distinctly repudiated this second branch of the rule in Wild’s case ; and the decision is placed upon the ground, that the law of that State having converted estates-tail into absolute fee-simple estates, thp reason on which the rule was founded has ceased to exist; and in fact, that the very policy which caused it to be adopted, now demands its abrogation. The English rule,' it is properly said by the court, was originally adopted in order to effectuate the intention of the testator. “The intent is manifest and certain that the children should take, and as immediate devisees they cannot take, because they are not in rerum natura; and by way of remainder they cannot take, for that was not his intent, for the gift is immediate ; and therefore such words will be taken as words of limitation.” — 6 Coke’s B>. 17 (a). That is to say, such a devise was construed to create an estate-tail, in order to render the gift to the children effectual; and under that rule, in England, the gift to the-children was made effectual. But in this country, where estates-tail are converted into estates in fee-simple, the very rule which, according to the old common law, carried out the intention of the testator, by securing the benefit of the gift to the children, defeats that intention by cutting them out completely. The court held, that for these reasons, and in order to effectuate the manifest intent of the testator, a different rule of construction must be here adopted ; and accordingly, a devise to a parent and his children, the parent not having any -children when the devise took effect, wras construed to give a life-estate to the parent, with remainder to the children, because in-no other way can the devise to the children be made effectual. The same considerations would, of course, apply to bequests of personalty, in which an estate-tail cannot exist.
Though the second, as well as the' first branch of the old rule, has been recognized as in force in this State, [31]*31(25 Ala. 292,) and has not been abandoned in England, or, so far as we áre aware, in any of the States of the Union, except Kentucky, there is no doubt that a strong disposition has been frequently shown, in this class of devises, to consider slight circumstances, in the context as justifying the courts in. confining the parent’s interest to one for life, and giving the children the remainder; for the reason, that the construction which gives the parent the absolute property, cuts the children out completely, although they are expressly named as objects of the testator’s bounty. — See what is said by Lord Hardwicke, in Buffar v. Bradford, 2 Atk. 220 ; 2 Sim. 490 ; 2 Jarm. 316. In both of the classes of cases alluded to, the courts incline to act upon the rule to include as many objects of the gift as possible, consistently with the declared purpose of the testator. — 2 Phill. 351.
The same considerations which would, justify a departure from the rule in the construction of a will, would be equally controlling in the case of a deed. — See Chesnut v. Meares, 3 Jones’ Eq. 416.
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R. W. WALKER, J.
The donor employs three different expressions, (all having different significations, if technically understood,) to designate the same persons— to-wit, at one place “children," at others, “heirs of the body,” and at still another, “an heir.” This circumstance-very clearly indicates, that the instrument was prepared by a person- not familiar with the precise- meaning of the-technical phrases employed ; and in construing it, much greater latitude is-allowable, than would be indulged in the construction* of a deed bearing upon its face evidence of having been* drawn by one who was accurate in the use, and acquainted with the legal effect, of the particular expressions to be found-in it. — 22 Ala. 438; 20 Ala. 710. We think that the words “heirs of the body,” and “heir,” as employed in this deed; are so explained by the context, as to show that they were used as synonymous with children. — Robertson & Pettibone v. Johnston, in MS.
The rule of construction commonly known as the rule in “Wild’s case,” is, that where lands are devised to a person and his children, and he has children at the time the will is made, and at the death of the testator, the parent and children living at the testator’s death take -jointly under the will; but, where-the devise is to one and his children, and he has no children at the date of the will, or at the testator’s death, the parent takes an estate-tail. — 6 Coke’s R. 17; 2 Jarman on Wills, 307-8, and cases there collected; Nimmo v. Stewart, 21 Ala. 691; Furlow v. Merrill, 23 Ala. 716.
If this rule is applicable to will's of personal estate, a bequest to A. and his children.,- there being no children in esse at the time, would, as a- general proposition, give to the parent the absolute interest, according to the fami[29]*29liar 'doctrine that the same terms which, when employed with respect to real estate, create an estate-tail, carry, if used in a bequest of personalty, the absolute property. !u the English courts, it has been occasionally questioned whether the rule in Wild’s case is applicable to wills of personalty. — See Paine v. Wagner, 12 Sim. 188; Stokes v. Heron, 12 Cl. & Fin. 161; 2 Wms. Exrs. 937. But our decisions seem to settle it as the law in this State, that in this respect no distinction is to be recognized between devises and bequests ; and that where property, whether real or personal, ds 'limited to one and his children, there being no children, either when the will is made, or when it takes effect, the general rule is, that the absolute property vests in the patent. — See Vanzaut v. Morris, 25 Ala. 292; McCroan v. Pope, 17 Ala. 617.
There can be no doubt, however, that in both of the cases which have been mentioned — that is to say, where there are children in esse, and also where there are none —slight indications in the context, of such an intention on the part of the testator, have frequently been thought sufficient to justify courts in .holding, especially in bequests of personalty, that the parent shall take far life, with remainder to his children, including herein all the children that may bo born before the termination of the parent’s life-estate. The chief reason for such an inclination on the part'of the courts, where the gift is to one and his children, there being children in esse at the time, is, that the other construction, resulting from .the application of the first branch of the rule in Wild’s .case, by confining the gift to those children who ar,e living at-the testator’s death, excludes entirely all those born after that event. Another reason which'has been suggested .is, that the children, -if tenants in common with the .parent, .might, on arriving at ago, demand a partition, and thus deprive the parent, who in these eases is frequently, if not-usually, the primary object of the testator’s .bounty, crffihe means of support in old age. — Chesnut v. Meares, 3 Jones’ Eq. 417.
Where there are no children in esse at the time filio gift .takes effect, the general rule, -.which wests dhe, .absolute [30]*30estate in the parent, has, in some instances, been treated as even less stubborn, and still more easily turned aside by the force of slight additional expressions in the will. Indeed, the Kentucky court of appeals has, in a recent case, and in a well considered opinion, distinctly repudiated this second branch of the rule in Wild’s case ; and the decision is placed upon the ground, that the law of that State having converted estates-tail into absolute fee-simple estates, thp reason on which the rule was founded has ceased to exist; and in fact, that the very policy which caused it to be adopted, now demands its abrogation. The English rule,' it is properly said by the court, was originally adopted in order to effectuate the intention of the testator. “The intent is manifest and certain that the children should take, and as immediate devisees they cannot take, because they are not in rerum natura; and by way of remainder they cannot take, for that was not his intent, for the gift is immediate ; and therefore such words will be taken as words of limitation.” — 6 Coke’s B>. 17 (a). That is to say, such a devise was construed to create an estate-tail, in order to render the gift to the children effectual; and under that rule, in England, the gift to the-children was made effectual. But in this country, where estates-tail are converted into estates in fee-simple, the very rule which, according to the old common law, carried out the intention of the testator, by securing the benefit of the gift to the children, defeats that intention by cutting them out completely. The court held, that for these reasons, and in order to effectuate the manifest intent of the testator, a different rule of construction must be here adopted ; and accordingly, a devise to a parent and his children, the parent not having any -children when the devise took effect, wras construed to give a life-estate to the parent, with remainder to the children, because in-no other way can the devise to the children be made effectual. The same considerations would, of course, apply to bequests of personalty, in which an estate-tail cannot exist.
Though the second, as well as the' first branch of the old rule, has been recognized as in force in this State, [31]*31(25 Ala. 292,) and has not been abandoned in England, or, so far as we áre aware, in any of the States of the Union, except Kentucky, there is no doubt that a strong disposition has been frequently shown, in this class of devises, to consider slight circumstances, in the context as justifying the courts in. confining the parent’s interest to one for life, and giving the children the remainder; for the reason, that the construction which gives the parent the absolute property, cuts the children out completely, although they are expressly named as objects of the testator’s bounty. — See what is said by Lord Hardwicke, in Buffar v. Bradford, 2 Atk. 220 ; 2 Sim. 490 ; 2 Jarm. 316. In both of the classes of cases alluded to, the courts incline to act upon the rule to include as many objects of the gift as possible, consistently with the declared purpose of the testator. — 2 Phill. 351.
The same considerations which would, justify a departure from the rule in the construction of a will, would be equally controlling in the case of a deed. — See Chesnut v. Meares, 3 Jones’ Eq. 416.
A reference to some of the cases will illustrate and confirm what has been said, as to the inclination which some courts have shown to make this rule bend to slight indications in the context of an intention on the part of the testator to give the parent an estate for life, with remainder to the children.
In Jeffery v. Honeywood, (4 Madd. 398,) where a testator gave certain estates, “to A., and to all and every child and children, whether male or female, of her body lawfully issuing, and unto his, her, and their heirs or assigns forever, as tenants in common;” A. died in the life-time of the testator, leaving ten children ; Sir John Leach said : “There are two gifts — one to the mother, without word of limitation superadded, and another to her children, their heirs or assigns ; and these two gifts can only be rendered sensible by construing, as the words import, a life-estate to the mother, and a remainder in fee to the children.”
In Crawford v. Trotter, (4 Madd. 361,) a bequest of ¿£1,000 three per cent, reduced annuities “to A. and to [32]*32her heirs, '(say children,)” was held to give a life-interest to A., and the capital to her children.
In Morse v. Morse, (2 Sim. 485,) where a testator gave to his daughter A. and her children ¿65,000 for their sole use and support, ¿63,000 to 'be paid in one year after his decease, and ¿62,000 after the decease of his wife, and .appointed A. B. trustee of those sums for his daughter and her children; it was held, that the ¿65,000 was’in trust for the daughter for life, and, after her decease, for all her children, whether born in the testator’s lifetime or after his decease.
In Vaughan v. Marquis of Headfort, (10 Sim. 639,) the bequest was of ¿640,000 “to the marquis of'IIeadl'ort and .his children, to be secured for their use-” The marquis had six children at the death of the testatrix. Sir L. Shadwell, vice-chancellor, held, that the father took for his life, and his children after his death; “and that construction will let in any children of the marquis that may be here after born.”
A testator gave to his niece E. G. the sum of ¿67,000, and to her heirs, for her separate use; the sum of ¿67,000, to be invested in consols, in the names of A. and B., who were appointed trustees of the donation, to receive the intei'est of the stock, and to be answerable for the stock, for the use of B. G. and her children, and to apply it iti the manner most conducive to their interest; E. G. to pay her mother, during her life, the sum of ¿640' per ■annum. Held, that E. G. was entitled for life, with remainder to her children born at and after the death of the testator. — Ogle v. Corthorn, (14 L. J., N. S. 337,) cited in 4 Eq. Dig. 3099, § 13.
In French v. French, (11 Sim. 257,) the testator gave ¿65,000 to his sons, in trust for his daughter Mrs. W., so as not to be subject to the debts, &c., of her husband; and he gave the like sum to Mrs. A. “in trust as aforesaid, for the use of herself and her children.” Mrs. A. had two children living at the testator’s death. Held, that they did not take either as joint tenants, or tenants in common with her; hut that she was entitled to the [33]*33whole income of the fund for her life, with remainder to her children.
In Chesnut v. Meares, (3 Jones’ Eq. R. 416,) the question was upon the construction of a deed, by which Joab Meares, for a nominal pecuniary consideration, “and for the further consideration of love and affection for his wife Polly Meares, as well as for her better maintenance and support,” conveyed to a trustee-, in trust for his wife, certain negroes, (warranting the same to the trustee,) “for the said Polly Meares and her children which she has or may have by me ; the trustee never to dispossess my said wife and my children which I have or may have by her,” and to “suffer her to enjoy, together with the children, the benefit, use and profits of the negroes forever.” The court held, that the mother took the whole property for life, with remainder to all her children, as a class.
In Ponton v. McLemore, (2 Dev. & Batt. Eq. 285,) a testator gave a legacy in trust for his daughter, “for the maintenance of her and her children,” to be applied at the discretion of the trustee, no part thereof to be the subject to the debts of her husband. It was held, that there was a bequest to the sole use of the daughter for life, and after her death to her children.
For other illustrations of the leaning of the courts to limit the parent to a life-estate, and to give the children the remainder, where the gift is to one and his children, there being children at the time, see Hannan v. Osborne, 4 Paige, 341; Wood v. Baron, 1 East, 259; Crockett v. Crockett, 2 Phill. Ch. 555.
In Bridges v. Wilkins, (3 Jones’ Eq. 342,) the material parts of the will -were as follows: “Item, 1st. After paying all my just debts out bf cash on hand, or debts due me, I give and bequeath the balance of my property to my sisters that may be living at the time of my death, and their lawful issues, except the slaves. Item 2d. The slaves of which I am seized and possessed, I give to my-mother during her natural life, and after her death to go to my sisters and their children as above mentioned; with the express condition, that no property, of which I am now possessed, or may hereafter fall heir to, shall go [34]*34to any but my sisters directly, and their progeny, and not their husbands. * * * Hem 4th. I give and bequeath to my sisters, as before stated, my life-policy of $5,000.” The testator left six sisters surviving him, of whom only one was married. The court held, that the words “issues” and “progeny” were used in the sense of children, and that each of the sisters took an estate for life in the slaves and other properly, with remainder to her children.
In Heron v. Stokes, (2 Dr. & War. 89; S. C., 4 Ir. Eq. R. 284,) it was held, that a gift by will of personal annuities, to A. and B., for themselves and their children, they not having any at the date of the will, or at the death of the testator, gives them only a life-interest. In that case, Sir Ed. Sugden' suggested, that the more natural construction, of a gift to one and his children, there being no children in esse at the time, and that which he should have adopted in the absence of authority the other way, would be, to hold it to be a gift to the parent for life, with remainder to the children. To the same effect, see the remarks of V. C. Sir L. Shadwell, 12 Sim. 188.
In Furlow’s Adm’r v. Merrill, (23 Ala. 705,) the bequest was in these words: “I give to my daughter Cynthia Hill one negro girl, named Ann, together with all her increase, entirely for my daughter’s benefit and her children.” It did not appear whether or not the legatee had any children at the time the will took effect. This court, after mentioning this, said : “This latter fact, as we construe the words of the bequest, is absolutely essential to be known, in order to determine with any accuracy the estate which Cynthia Hill took in the bequest. If she was then unmarried, the bequest would, in our opinion, create a life-estate simply in Cynthia Hill, with remainder over to her children ; but, if she was married and had children at the time that the will took effect, then she would take absolutely a joint estate with the children.— Nimmo v. Stewart, 21 Ala. 682.”
Without wishing to be understood as approving of all the decisions we have referred to, we cite them for the purpose of, showing the strong disposition which the courts have manifested, in cases like the present, to con[35]*35sider slight circumstances in the context as sufficent'to justify them in holding that the parent shall take only for life, with remainder to his children. See, also, 2 Wms. Ex’rs, 938 ; McCroan v. Pope, 17 Ala.; Lushington v. Sewell, 1 Sim. 435; Newman v. Nightengale, 1 Cox, 341; Wilson v. Vansittart, Ambl. 562; Paine v. Wagner, 12 Sim. 188; Baine v. Lescher, 11 Sim. 397; Elmore v. Mustin, 28 Ala. 309.
In the present case, the gift is to a daughter and her children, the daughter having no children at the time. The words are, that in consideration of the donor’s love and affection for his daughter, “and wishing to make permanent support for her and her children, I do hereby give,” &c.; “but, in case the said Prudence shall die without an heir,” (which expression, the. context shows, is to be here construed in the sense of child.) “the said negroes to return,” &c. The vesting of the absolute property in the daughter is inconsistent with the declared purpose of the donor, that the gift was to make permanent support for her and her children. Then the provision, that on her dying without a child, her brothers and sisters should take the negi’oes with their increase, fortifies the supposition, that the donor meant to give her but a life-estate, with remainder to her children. The donor’s declared wish, that the children shall derive a permanent support from the negroes, is best accomplished by holding that they take, as remainder-men, the absolute property on the death of their mother.
It is unnecessary for us to determine, whether the daughter took the entire interest in the slaves for her life, or whether her children had, even during the life of their mother, a right to be supported by the services of the negroes, or a share in the profits of their labor. Nor do we feel called upon to decide, whether the terms of the deed were such as to exclude the marital rights of the husband of Mrs. Williams, (see Furlow v. Merrill, 23 Ala. 705,) nor whether the limitation over on the death of the daughter “without an heir” (or child) was too remote, (see Stone v. Maule, 2 Sim. 490 ; 2 Jarm. 437-8 ; 5 Day, 517; 6 Rich. Eq. 399; 25 Ala. 315.) We go as far as is at all [36]*36necessary, when we hold that, whatever interest vested in-the daughter of the donor, terminated on her death, leaving children, and that her children then took the entire .property as remainder-men.
[2 — 3.] We feel constrained, however, to hold, that the ilegal title of the trustee did not cease at the death of Mrs. Williams; and consequently, the interest of her children is equitable, not legal. — Bryan v. Weems, 29 Ala. 423; Andrews v. Huckabee, 30 Ala. 153-4. Neither the English statute of uses, nor the 8th section of our act of 1812, which was in force when this deed was made, and which was probably «designed as a substitute for the English statute, has any application to personalty. Lewin on Trusts, p. 7 ; Hill on Trustees, 63, 230; Clay’s Digest, 156, § 35. The legal title not being in the plaintiffs, the court did not err in the charge given. If the children of'Mrs. Williams wish to proceed in their own names, they must assert their rights in another forum.
It was not shown that the record, which the plaintiffs .offered in evidence, had any connection whatever with the property in controversy, or with the deed under which they claimed title ; and if such connection were shown, we do not perceive the relevancy of the evidence to any •of the issues in the cause. Even if it were admitted that 'the first trustee had resigned, and that Mr. Williams had ■been duly appointed trustee in his place, we do not por■ceive that the death of the substituted trustee would have the effect of vesting the legal estate in the children, so as to enable them to recover the possession.of,the slaves by .suit in their own names.
J udgment.affirmed.