The facts of the case are fully stated in the opinion of the court, which was delivered
by Lowrie, J.
— In 1815, Stephen Hall made his will, consisting of five clauses. By the first, he gave all his estate to his wife, during her widowhood; by the second, to his son George, the land in dispute, without words of inheritance; by the third, another tract to two daughters, without words of inheritance; by the fourth, the remainder of his land to be sold, and the proceeds divided among three other daughters; and, by the fifth, he gave to six of his grandchildren, by a deceased son and a daughter, forty dollars each, and declared it to be “ in lieu and full satisfaction for all and every demand which my children, or any, or either, of them, may have or claim against me or my estate on any account whatever.” He had about seventy acres of land, to which the fourth clause applied.
The error assigned here is, that the court below decided, that the estate granted to George was only a life estate. Is this an error ?
If the aim of all interpretation were, to ascertain an intention, the error would be plain enough to anybody that can read English. But, unfortunately, we had not, when this will was written, got entirely free from a rule that prevented judicial minds from readily seeing a fee simple where they did not see the word heirs; and it is very apparent that the author of this will was not aware of this rule, and it is only unconsciously that he has provided against it. But he has provided..
Eveh the old rule had ceased to exact the use of the word heirs in all cases where there were other expressions or provisions besides those of mere gift, which showed that the testator intended his gift to be a fee simple. . There are such provisions in this will; and noticing, as we do, that the testator was very skilful in the use of language, we must attribute to those provisions their full value, as indications of his intention.
First, it is very improbable that he intended to give his son an estate which was not expected to vest in possession until after the death of his widow, and then should further intend that when it shall so vest, it should itself be a mere life estate. And, further, it is improbable that he should have left the remainder, after the death of George, undisposed of, if he was thinking of giving George a life estate. The devise of the remainder of his land, in the fourth clause, was not intended to apply to any such remainder, but only to the seventy acres not already named. Schriver v. Meyer, 19 P. S. R. 92; Neide v. Neide, 4 Rawle, 82; Pow. on Dev. 421.
Second, it is very improbable that a man, devising his estate among his children, should intend that part of it should be for life, and part of it in fee; that some of his children should take greater and others less estates, and. yet should leave such a thought unexpressed; and especially that he should meap to give to one or more of his children a life estate, with a fractional portion thereof to the same persons in fee as his heirs-at-law, and should leave this unpaid.
Lastly, we understand the testator as excluding his grandchildren, named in the fifth clause, from all share in his estate, exeept that expressly given to them; for he is making legacies, and not paying debts, and declaring all that he intends them to have of his estate. Now, this exclusion cannot be effectual without treating the devise to George as a fee. If it is not so, then there was an interest in the land in controversy that descended to these grand-children immediately on the testator’s death, contrary to his express intention.
All these circumstances united, seem very clearly to express the opinion of the testator, that he had given his whole estate in this .land.
Judgment reversed, and judgment for the defendant below, with costs.
Black, J., dissented.