Opinion
02-28-1855
MOORE & als. v. BROOKS.
Stanard and Bouldin, for the appellants: Hughes, for the appellee, submitted a printed argument:
Testator gives his estate to his wife during her life; and at her death it is to be equally divided amongst all his children. And the shares of his two daughters, M and B, to be held by them during their natural lives and no longer, and then equally divided between their heirs lawfully begotten. And at his wife's death he directs his lands to be sold and the proceeds divided as aforesaid. HELD:
The words " heirs lawfully to be begotten" are words of limitation; and M and B took the whole interest in their shares of the estate.
Josiah Robertson died in 1810, having made his will, which was duly admitted to probat. By his will he gave to his wife Catharine Robinson, the whole of his estate, for her life or widowhood; she paying his debts. The second clause of the will is as follows:
" At the death or intermarriage of my dear wife, it is my will, that my then remaining estate be subject to equal distribution between all my children; and it is my express desire, that the parts of my estate which shall go to my two daughters Mary Murphy and Caroline Brooks, shall be held by them during their natural lives, and no longer, and then equally divided between their heirs lawfully begotten."
By a subsequent clause he directs that on the death or marriage of his widow, the property shall be sold, and the proceeds be equally divided among his children.
Mrs. Robinson seems to have married again about the year 1817, when the property was divided among the children; they all being then of age and the daughters widows, and preferring to take it in kind. Mrs. Brooks received on that division a small tract of land and a negro woman, who afterwards had several children.
Caroline Brooks died in 1850, leaving one son and four daughters, who were married. She left a will, by which, after directing the payment of her debts, she left the balance of her estate to her five children; directing that the shares of the daughters should be secured against the control of their husbands and their creditors. Her son William H. Brooks qualified as administrator with the will annexed.
William H. Brooks being about to sell some of the property, all of which was derived from the estate of Josiah Robertson, for the payment of the debts of his testatrix, the daughters and their husbands filed a bill to enjoin the sale, upon the ground that Caroline Brooks their mother took but a life estate in the property, under the will of her father; and that her children were entitled to the fee. The injunction was granted, but was afterwards dissolved. Whereupon they applied to this court for an appeal, which was allowed.
Stanard and Bouldin, for the appellants:
The sole question in this case is, whether or not the rule in Shelley's Case is applicable to the bequest in favor of Mrs. Brooks in the will of her father Josiah Robinson. This rule is now abolished in Virginia. It is founded on feudal reasons having no existence in this country; and it has been sustained upon legal partialities and presumptions, repudiated by us as early as the period of our independence. Here the law has no partiality for the eldest son, but all the children are equally its favorites; and equality is the established rule of policy and justice.
This case has been decided in the court below, upon the strictest interpretation of the rule contended for in England, without regard to the changes in our institutions and in the policy of our laws. But even in England, and in relation to real estate, this strictness has not been maintained without a severe struggle, a struggle which is still continued. There this contest has been going on ever since the announcement of the rule in Shelley's Case. By one party almost any words are held to take a case out of the operation of the rule, whilst almost none will effect this object in the estimation of others. Thus the addition of the word heirs to heirs, the words for the life of the first taker " and no longer or not otherwise; " to one for life and to the heirs of his body " equally to be divided," have been the objects of controversy, and upon which the greatest judges of England have differed in opinion.
For some time before the decision of Jesson v. Wright in the house of lords, 2 Bligh's Par. Cas. 1, the weight of the decisions was against the strict application of the rule. That decision is supposed by Jarman and others to have overthrown the long line of cases opposed to it, among them, Doe v. Laming, 2 Burr. R. 1100, and Doe v. Goff, 11 East's R. 668. But Sir Edward Sugden, who argued the case at great length, did not question the authority of these cases, but attempted to distinguish it from them. Jesson v. Wright, in the house of lords, is in fact the decision of Lords Eldon and Redesdale, who, though they came to the same conclusion, arrived at it by different processes of reasoning founded on different principles; and from that decision we appeal to the same case decided by Lord Ellenborough and Justice Bayley in the King's bench, 5 Maule & Selw. 95.
The case of Jesson v. Wright has not settled the rule in England, as is admitted by Jarman, vol. 2, p. 216; and he refers to Wilcox v. Bellaers. This case occurred soon after the decision of Jesson v. Wright; and both Sir Thomas Plumer and Lord Lyndhurst thought the rule declared in Jesson v. Wright so doubtful that they would not compel a purchaser to take a title dependent upon it. 11 Cond. Eng. Ch. R. 266. That case was again doubted in Right v. Creber, 5 Barn. & Cress. 866, and in North v. Martin, 6 Sim. R. 266; and Hayes, p. 47, 7 Law. Libr. a great advocate of the rule declared in that case, admits that the question is still unsettled.
But Jesson v. Wright was a case of real estate; whilst in our case the whole subject is personal; for the land is directed to be sold at the death of testator's wife, and the proceeds of the sale to be divided: And this rule has not been applied to personal estate. Jarm. Powell on Devi. 638, 22 Law Libr. Indeed Roper in his work on Legacies, p. 1523-4-5, lays it down as a law of property, that the rule in Shelley's Case does not apply to such cases.
But if this feudal dogma is to be applied in England, this is not the case in Virginia under our decisions. The cases here have generally arisen upon limitations over; but there are a few which brought up the question directly. One of the first of these is Bradley v. Mosby, 3 Call 44. This is like Archer's Case, 1 Coke's R. 66; and it was held that the first taker took but a life estate, and that the words " heirs of her body" were words of purchase. The other cases directly on the rule in Shelley's Case, are Warners v. Mason & wife, 5 Munf. 242; Self v. Tune, 6. Munf. 470, which is a direct authority for us in this case; Tidball v. Lupton, 1 Rand. 194; and Pryor v. Duncan, 6 Gratt. 27; in which last case it was held that the manifest intention of the testator should take the case out of the operation of the rule. We also refer to McNair's adm'r v. Hawkins, 4 Bibb's R. 390; Prescott v. Prescott's heirs, 10 B. Monr. R. 56; Shelton v. Henderson & wife, 9 Gill's R. 432; Carlton v. Price, 10 Georgia R. 495; and McClure v. Young, 3 Rich. Equ. R. 559.
Hughes, for the appellee, submitted a printed argument:
A life estate in the lands, or freehold, is expressly given to Mrs. Brooks, and in the same will the estate is limited immediately to her heirs lawfully begotten. The appellee insists that this devise is subject to the well known rule in Shelley's Case, and in effect gave to Caroline Brooks a fee simple title to the land. The rule itself, it is presumed, will not be questioned, but only its application to the devise in the present case. Neither is it a question, as it seems to be supposed, whether the rule will yield or bend to the intention of the testator. The rule is stern and inflexible, and unyielding even to the strongest and most obvious intention, if the case is within its operation. Hayes' Essay on the Principles of Expounding Dispositions of Real Estate, p. 96, 21 Law Libr. " It can never be a question, (says the author,) whether the rule is to be applied or not. We might as well ask whether the testator intended to contravene the rule against perpetuities. It will no more yield to individual intention than any other fundamental law of property. The rule admits of no exception. " Same work, p. 48; 2 Jarm. on Wills 241-2; 4 Kent's Com. 226, referring to Hargrave's Law Tracts 575-7; Thomas' Coke 376 b, note P; Jones v. Morgan, 1 Bro. C. R. 206; Fearne on Rem. 188-9. But whether a given case is within the influence of the rule has not always been free from difficulty, nor have the decisions upon the subject been uniform. But it seems to be now well settled that the first thing to be ascertained is, in what sense did the testator use the words employed in the devise? Did he use them in their usual and proper acceptation, or in some other sense? And if in some other, in what other sense did he so use them? When the testator's meaning is ascertained, it is at once seen whether the rule applies. As the difficulty in every case must exist at this point, it can only be removed by applying the ordinary rules of construction, which ought readily to lead to a proper solution. In the case under consideration the only question must be, in what sense did Josiah Robertson use the word " heirs" in the devise to Caroline Brooks? Did he use the word in its proper and legal signification, denoting thereby those who would succeed to her estate in case of intestacy, and making her the stock or terminus by whom the succession should be regulated? Or did he mean particular individuals, or class of individuals? And if so, who were meant, or what class did he mean? If he meant the former, the rule in Shelley's Case applies irrespective of any intention he might have had to the contrary. If he meant the latter, the rule has nothing to do with the case.
In applying the rules of construction to ascertain the sense in which the testator used the word " heirs," the first rule to be observed is, that he is presumed to have used the word in its proper and well defined acceptation, denoting thereby the whole line of the legitimate heirs of Caroline Brooks, to the exclusion of none; and this presumption is quite sufficient, unless it plainly appears in the context that the word was used in a restricted sense; which must be so obvious as to preclude all claim to its use in its proper and technical sense. To repel this presumption the meaning must not be vague and conjectural, but clear and unequivocal. If authority is wanted in support of this familiar proposition, we may refer to the opinions of Lords Eldon and Redesdale in Jesson v. Wright, 2 Bligh 1; 2 Jarm. on Wills 280; Hayes' Essay above cited, Prop. xv. At page 100, Mr. Hayes remarks, " Every sound principle demands that the context should not merely show that heirs of the body (the words he was considering) are employed in a sense different from their legal and proper sense, but distinctly indicate in what other sense they are employed." Apply this test to the will of Josiah Robertson, and there will be found no language in the context sufficient to repel the presumption that he used the word " heirs" in its proper sense; still less is there any thing to show in what other sense he did use it. If he did not mean that the estate should go to all the heirs of Caroline Brooks at her death as her own estate would go under the statute of descents, we are left wholly to conjecture as to his meaning. There is nothing to show that he alluded to particular individuals, or to any class of them, and in the absence of a clear indication in this particular, the rule of construction forces the conclusion that he used the word " heirs" in its proper and technical sense--that he was pointing to no particular individuals; but regarding her as ancestor, stock or terminus to regulate the succession, he intended the estate at her death to pass to all who might be heirs to her as such stock or terminus, provided only they be legitimate. When we look to what might have been the consequences of a different interpretation, the mind becomes satisfied of the testator's meaning. Suppose we regard the testator as meaning children by the word " heirs," they must be such children as should be living at her death, and at that time coming under the description of " heirs." This would not embrace grand children; and therefore, if one or more of her children had died in her lifetime, leaving children, such must necessarily be excluded. Nay, if all her children had died in her lifetime leaving children, none of them could have taken. This is obvious when it is observed that if the children of Caroline Brooks take as purchasers, they take remainders under the will of Josiah Robertson contingent upon their being the " heirs " of Caroline Brooks, that is, of their being alive at her death, and the persons designated by law as her heirs. The testator could not have intended to use the word " heirs" in a sense which might lead to such consequences. Attach any other meaning to the word " heirs" in this will, except its appropriate meaning, and we encounter similar consequences.
The only expressions in the will which can be appealed to as affordng any evidence of an intention of the testator to use the word " heirs" in a sense different from its proper and technical sense, are the words " during her natural life and no longer," and the words " equally divided," & c. The words " " " during her natural life and no longer," serve only to mark with more emphasis that the testator intended but a life estate to the first taker. It is conceded that but a life estate was intended to be given to Caroline Brooks, and it is only in cases where but a life estate is so given that the rule in Shelley's Case applies. The words " no longer" have even less force than the words " non aliter " " only," " without impeachment of waste," & c. if, indeed, all such expressions had not been discarded and overruled in the case of Jesson v. Wright, 2 Bligh 1, and treated as " petty distinctions," wholly insufficient to change the meaning of the word " heirs." Jarm. 337, (2 vol.) says, " it would be idle to attempt to distinguish Backhouse v. Wells, 1 Equ. Cas. Abr. 184, pl. 27, from Roe v. Grew, 2 Wils. 322, on the ground of the words " only," " " " without impeachment of waste," & c. They merely show the testator meant to confer an estate for life and nothing more, which sufficiently appeared from the expresss limitation for life. See the remarks of the same author at p. 246, also Robinson v. Robinson, 1 Burr. R. 38, 2 Ves. sen. 225. The words " " " equally divided," superadded to the limitation to " heirs," whatever force they might have had at one time, or may now have in England, can have little or no force in this country. The importance attached to them in England was because they indicated a manner of taking inconsistent with the devolution of an estate tail (or an estate in fee in many cases,) growing out of their law of primogeniture, which does not exist here. Here our laws require an equal division among heirs in equal degree, and a declaration to that effect by a testator is consistent with the manner of taking as " heirs. "
If the conclusion is right that Caroline Brooks took an estate tail in the land, it is unnecessary to say much in regard to the interest she took in the slaves. It follows necessarily that she took the absolute interest in the personal property. The words " heirs lawfully begotten," used in the will of Josiah Robertson, being some restriction upon heirs generally, have been decided to pass an estate tail in lands. Nanfan v. Legh, 2 Marsh. 107, Co. Litt. 20 b, Hargrave's note 2. The general rule that where the words would give an estate tail when applied to real estate, they will give the absolute interest when applied to personal property, will not perhaps be questioned. Indeed, the questions seem to be regarded in England as identical. 2 Jarm. on Wills, ch. 44, and the cases there referred to. Browncker v. Bagot, 19 Vesey 574.
ALLEN, P.
This case brings again before the court the question, so often discussed here and in England, as to the operation of the rule in Shelley's Case, that where an estate of freehold is limited to a person, and the same instrument contains a limitation, mediate or immediate, to the heirs of his body, or to his heirs, the ancestor takes the whole estate comprised in the terms, either as a fee tail or a fee simple. In this case there is no limitation over on the failure of issue; and the only question arising on the will is, whether the testator, in reference to the devise or bequest to his daughters Mary Murphy and Caroline Brooks, used the words " heirs lawfully begotten" in their legal, primary and proper sense, or whether he used them as descriptive of some other class of objects. In the view I take of this case, the interpretation of the will is not affected by the character of the property. If, as applied to real estate, the clause would have created an estate tail in the daughters, in such case the full and entire interest in personalty would pass to the legatee; as an estate tail in personal property gives the absolute dominion.
When a testator uses a term having a well known legal meaning, he is to be understood as having used it in that sense, unless the context shows that he used it in a different sense. Unless that is apparent, the rule is inflexible; and though the testator may have supposed that the first taker would take an estate for life only, and perhaps so intended as then advised, yet it does not follow if he had been aware of all the consequences of a change in the term used, that he would have made it. The will bequeaths the property to his daughters, to be held by them during their natural lives and no longer, and then to be equally divided between their heirs lawfully begotten. If the words " during their natural lives and no longer," and " then equally divided between their heirs," are to be construed as modifying the words " heirs lawfully begotten," and as describing another class, and to imply children, who were to take as purchasers, then if the daughters had died leaving grand children, they would have been excluded. But giving the term heirs its legal and proper sense, all the descendants of the daughters would be embraced. So that it is at least conjectural, if we are to look to intention alone, in what sense the testator meant to use the term. It therefore would seem that the better plan is to give such words their plain, legal effect, and to reject mere loose expressions, from which to infer an intention that they were used as descriptive of a different class of objects.
The words here relied on as modifying the words " heirs lawfully begotten," do not indicate such intention so clearly as to justify the conclusion contended for. " During their natural lives and no longer," is no more than to show what appears in all these cases, that he meant to confer an estate for life; and it is to this class of cases that the rule in Shelley's Case applies: and the words " equally divided between their heirs," are, as it seems to me, entitled to but little weight in fixing upon the word " heirs" the meaning contended for. In England they were entitled to more consideration, as indicating an intent that the estate should not pass according to the law of descents. With us, where estates tail are converted into estates in fee simple, and the doctrine of primogeniture is abolished, and the general sentiment is in favor of an equal division amongst those standing in the same relation, the inference would be that the testator, by the use of these words, intended that they should take as heirs rather than in any other character. But upon this question the authorities are numerous both in England and in Virginia; and they have been conflicting and inconsistent. It is conceded in the argument, and the cases show, that such expressions as " share and share alike," or " as tenants in common," & c. have controlled the word " heirs." The whole question was elaborately discussed and carefully considered in the case of Jesson v. Wright, 2 Bligh's P. R. 1, upon appeal to the house of lords.
The devise was to W for life, and after his decease, to the heirs of his body, in such shares and proportions as W by deed, & c. should appoint; and for want of such appointment, to the heirs of the body of W, " share and share alike as tenants in common." And if but one " child," the whole to such only child; and for want of such issue, to the devisor. The court held that an estate tail vested in W by this devise, reversing the decision in King's bench, and overruling all that class of cases which had given to such words the effect of modifying and controlling the meaning of the technical word " " heirs." Lord Redesdale said, " That the general intent should overrule the particular, is not the most accurate expression of the principle of decision. The rule is that technical words shall have their legal effect, unless from subsequent inconsistent words it is very clear that the testator meant otherwise." --" It has been argued that heirs of the body cannot take as tenants in common; but it does not follow that the testator did not intend that the heirs of the body should take, because they cannot take in the mode prescribed. This only follows, that having given to heirs of the body, he could not modify that gift in the two different ways he desired, and the words of modification are to be rejected."
Several cases have occurred since the case of Jesson v. Wright; and though in some instances the principle of that case may not have been followed out, yet the weight of authority is in favor of the rule there enounced. The cases on this subject are reviewed in 2 Jarm. on Wills 271, ch. 37; and he concludes that the doctrine of Jesson v. Wright has prevailed, and stands on the soundest principles of construction. Hayes on Estates Tail 100, 7 Law Libr. 54, sustains the same proposition. See also to the same effect Powell on Devises 464, ch. 23, 22 Law Libr. 245.
The words in the will under consideration are not so strong as in the case referred to. There the heirs of the body could not take as tenants in common, and the court was compelled to reject the words of modification. In this case the words of modification are not inconsistent with the operative words of the bequest or devise, because the property passing by descent to the heirs, would be equally divided if they all stood in the same degree of relationship.
It is contended, however, that this is no longer an open question in Virginia; and that the precise question has been adjudged in at least one case, and the principle affirmed in others. Bradley v. Mosby, 3 Call 44, is relied on as having in effect settled the principle that the word " heirs" should, in a will like this, be treated as descriptive of another class, the children of the first taker. In that case there was a limitation by deed of slaves to the donor's daughter for life, and after her death to the heirs of her body, to the only proper use and behoof of such heirs, " their executors, administrators and assigns." The court, consisting of Judges Pendleton, Lyons and Roane, was divided; each judge giving a different construction to the will. Pendleton founded his opinion upon the supposed distinction between words which create an express estate tail, and such as create an estate tail in lands by implication and construction, to favor the intention to provide for the issue; and maintained that the latter ought not to be applied to personals to defeat the intention. But the rule in question is not confined to cases in which the words, if applied to real estate, would create an express estate tail; it applies also to cases in which an estate tail would arise by implication, with the exception of those cases in which words expressive of a failure of issue are in gifts of personal but not of real estate, confined to issue living at the death; questions depending not so much upon the sense in which the word " " heirs" has been used by the donor, as upon the fact whether the limitation over is too remote. Powell on Devises 632, (mar.) 22 Law Lib. 338; 2 Jarm. on Wills 489, ch. 44. In the case of Lampley v. Blower, 3 Atk. R. 396, referred to by Judge Pendleton, Lord Hardwicke said, that a gift to A and her issue would vest the whole interest in A if it had stopped there; but held that the bequest over, in case either of the legatees died without leaving issue, which in regard to personalty, in legal construction means issue living at the death, explained issue in the body of the devise to be used in the same sense. Judge Roane rested his opinion exclusively upon the words giving the property to the heirs of the first taker, to the only proper use of such heirs, their executors, administrators or assigns, as showing " there was no eye of entail; " for it could not go from one heir of the body and his executors and administrators to another heir and his executors and administrators; for which he cites Hodgeson v. Bussey, 2 Atk. R. 89; Theebridge v. Kilbourne, 2 Ves. R. 233, which in a great measure turned upon the import of those words. Lyons, judge, held that the words would have given an estate tail in lands, and therefore they gave the absolute property in slaves. The case therefore decided no principle applicable to the will now under consideration; and the opinions of Judges Roane and Pendleton were founded, the first upon expressions not found in this will, and the last upon the idea of a distinction between cases in which the words when used in reference to realty would create an express estate tail, and those in which an estate tail would be created by implication: a distinction it appears that does not exist except in certain cases where words expressive of issue receive a different construction as applied to real and personal estate; as in the case of the phrase " leaving no issue; " in respect to which it has been held that it means an indefinite failure of issue where real estate is the subject, but in reference to personal estate, it means a failure of issue at the death. Forth v. Chapman, 1 P. Wms. 663.
Warners v. Mason & wife, 5 Munf. 242, turned upon the question whether the limitation over was too remote. The testator devised land to his son during his natural life, and then to his heirs lawfully begotten of his body, " that is, born at the time of his death or nine calendar months thereafter; " and for want of such heirs, then to his nephews, one to set a price and give or receive such price from the other: This was held to be a good limitation over. No opinion was given by the court, but it is manifest the court held that the testator looked to the period of the death of his son, and not to an indefinite failure of issue, because he speaks of heirs born at the son's death; and the remainder was to persons in being who were the objects of his bounty. These superadded words to the words " heirs lawfully begotten," demonstrating that the testator did not contemplate an indefinite failure of issue.
Pryor v. Duncan, 6 Gratt. 27, was decided upon the ground, that although the words " heirs lawfully begotten," were used in one clause, the whole context showed that the words were not used in their legal and primary sense, but were descriptive of another class of persons fully pointed out in a following clause, as the children of the first taker. He lent the slaves to his daughter during her natural life, and to her heirs, & c. Her interest was to cease, and his executors to take possession, if she concealed or attempted to alienate the slaves; in such case, after her decease they and their increase to be divided among her " children," if any living; otherwise to be divided among the testator's children, (naming them,) and their heirs. Thus showing, from the indifferent use of the words " heirs" and " children," by the restricted power over the property, and by the bequest over if no " children" living at her death, that he used the words " heirs lawfully begotten" in the sense of " " " children."
The last case to which the counsel of the appellant referred is the case of Self v. Tune, 6 Munf. 470. By deed slaves were given to a daughter of the donor and her husband, for and during their natural lives; and after the decease of both, the slaves and their increase " to be equally divided among the heirs of her body:" and in default of such heirs, to return and be equally divided between the donor's son and other daughter, and their heirs. The court, in the brief opinion pronounced by Judge Roane, says, If these words " heirs of her body" had stood alone in the limitation after the death of the daughter and her husband, her title would have been absolute; as in that case they would have been words of limitation: But the addition of the words " equally to be divided between them," compelled the court to construe them as words of purchase, and as a description of the persons who were to take."
The cases of Wilson v. Vansittart, Amb. R. 562; Doe ex dem. Long v. Laming, 2 Burr. R. 1100, and cases of that description, where words of that and the like character were held to modify the words " heirs of the body," were overruled by Jesson v. Wright, and the cases which have followed it. Powell on Devises 466, 22 Law Libr. 249; 2 Jarm. on Wills 286, ch. 37; where all the cases are collated.
The case of Self v. Tune forms one of a series decided about the same time upon the construction of the rule in Shelley's Case, and what would amount to a good limitation over. These are the cases of Timberlake v. Graves, 6 Munf. 174; Gresham v. Gresham, Id. 187; James v. McWilliams, Id. 301; Cordle's adm'r v. Cordle, Id. 456; and Didlake v. Hooper, Gilm. 184. The authority of these last cases has been shaken, if not overthrown, by the subsequent cases of Bells v. Gillespie, 5 Rand. 273; Broaddus v. Turner, Id. 308; Griffith v. Thompson, 1 Leigh 321; Callava v. Pope, 3 Leigh 103; Deane v. Hansford, 9 Leigh 253; Nowlin v. Winfree, 8 Gratt. 346. Which latter cases have, it is believed, been more in conformity with the English cases and the earlier cases in this court. The precise question decided in Self v. Tune did not arise in any of the latter cases; though the general principles on which the latter cases proceed may not be precisely in conformity with the doctrine of that case.
In Deane v. Hansford, 9 Leigh 253, Judges Parker and Brockenbrough observed, that as Timberlake v. Graves was followed in quick succession by the other cases named, they should be considered as settling the law in cases exactly resembling them; more especially as in devises made since the act of 1819 took effect, the statutory rule will prevail. But Brockenbrough said that if Timberlake v. Graves stood alone, he would have concurred in overruling it. In conformity with this suggestion, perhaps if Self v. Tune stood alone, it should be recognized as ruling a case exactly resembling it, although it might be considered as having been erroneously decided. But besides being in some degree shaken by the general doctrines advanced in the later cases, the principle of the case is, as it seems to me, in conflict with the two cases of Goodwin v. Taylor, 2 Wash. 74, and Wilkins v. Taylor, 5 Call 150, The testator, in the first case, gave to his daughter the interest of a sum of money for life; at her death he gave the interest one-fourth to each of his grand children, and at their decease, the principal and interest to be disposed of by them to their heirs, " in such proportions" as they by their wills respectively may direct: and in case of the death of Sarah (one of said grand children) without issue, her part was bequeathed over. There is not an express gift to the grand children for life, but the interest alone was given to them, with the power to dispose by will: and in regard to Sarah, there was a gift over if she died without issue. The will gave power to dispose of the subject to their heirs in such proportions as they by their wills may direct. The court held that the grand children took the whole estate. In the case of Wilkins v Taylor, which arose on the same will, in reference to the share of Sarah, it was held to be a limitation after an indefinite failure of issue, and void. The power to dispose of the principal to their heirs in such proportions as they by their wills might direct, tends more strongly to indicate that the testator intended that the heirs should not take in the regular course of descent, than the words " equally to be divided" in the present will. On the contrary, the words " equally to be divided" would, under our law, rather indicate that they should take as heirs. I do not think that the will in this case shows that the testator used the words " heirs lawfully begotten," in any other than their ordinary sense. That he designed " children" by the use of these words, is entirely conjectural; and under a certain state of facts, such a construction would have been more likely to violate than to subserve the intention of the testator. I also think that the authorities in this court are not in harmony with each other, and that it would be more in conformity with the spirit of the later as well as of the earlier cases in this court, and the true doctrine in regard to the rule in question, to hold that the superadded expressions do not indicate clearly an intention to use the term as descriptive of any other class than the heirs. I think therefore that the decree should be affirmed.
MONCURE and LEE, Js. concurred in the opinion of ALLEN, J.
DANIEL and SAMUELS, Js. dissented.
DECREE AFFIRMED.