Where either the term "heirs" or "heirs of his body" is used in a will, there is a presumption that such term is intended in its technical sense and as one of limitation defining the quantity of the estate devised, rather than as a term of purchase. This presumption can be overcome only by some qualifying or explanatory word or expression indicating that the testator intended to use the term in a popular rather than in a technical sense.52 The use in a devise of such adjectives as "nearest," "legal," "lawful," or other similar expressions, to qualify the word "heirs," without other words of limitation, does not convert the word "heirs" from one of limitation to one of purchase.53 The word "descendants" does not comprehend heirs at law generally, and is not a technical word of limitation.54 317, 15 S. W. 420; Nesbit v. Skelding, 213 Pa. St. 487, 62 Atl. 1062. The words "and their heirs" are words of inheritance inserted for greater precaution to define the extent of the estate devised, and not to qualify the interest of the devisees. In other words, they are terms of limitation and not of purchase.-Matter of Allen, 151 N. Y. 243, 45 N. E. 554. "Heirs" who take in remainder as such must take according to the course of descent established by law. Perry v. Hackney, 142 N. C. 368, 115 Am. St. Rep. 741, 9 Ann. Cas. 244, 55 S. E. 289. If the intention of the testator be that the remaindermen designated as heirs should take as the heirs of the devisee of the particular freehold, the rule in Shelley's Case applies even though it may defeat the manifest intention of the testator that the first taker should have but a life estate.-In re Guthrie's Appeal, 37 Pa. St. 9. 52 Gibson v. Brown, (Ind. App.) 110 N. E. 716; Bundy v. Bundy, 38 N. Y. 410. In Tyson v. Sinclair, 138 N. C. 23, 3 Ann. Cas. 397, 50 S. E. 450, where the devise was to a grandson "during the term of his natural life, then to the lawful heirs of his body in fee simple, on failing of such lawful heirs of his body, then to his right heirs in fee," it was held that the rule in Shelley's Case applied and that the grandson took an estate in fee simple. 53 Deemer v. Kessinger, 206 Ill. 57, 69 N. E. 28. 54 Bates v. Gillett, 132 Ill. 287, The word "heirs" is not synonymous with the term "nearest blood relative," and a testamentary gift to one "to have and to hold during his natural life and at his death to his nearest blood relative," conveys but a life estate and not a fee simple under the rule in Shelley's Case,55 § 911. Rule Does Not Apply Where the Limitation Is to Particular Heirs. The rule in Shelley's Case applies where the limitation over is to the heirs of a person generally or to the heirs of his body; it does not apply where the limitation over is to a particular heir or to a class of heirs to the exclusion of those above mentioned.56 While the word "heirs" has a well-settled meaning, it is sometimes used in wills to describe children or some particular class of heirs. How the word is used is a question of intention depending upon the terms of the will construed as a whole according to the rules governing the interpretation of such instruments. Where there is nothing in the will which plainly shows that the term "heirs" or "his heirs" is used in any other than its technical sense, the case is brought within the application of the rule. But where it is manifest that the intention of the testator in using the word "heirs" was to make it synony 298, 24 N. E. 611; Lee v. Sanson, 245 Pa. St. 392, 91 Atl. 611. 55 Miller v. Harding, 167 N. C. 53, 83 S. E. 25. As to those included in the term "relatives" or "relations," § 856. see 56 De Vaughn v. Hutchinson, 165 U. S. 566, 41 L. Ed. 827, 17 Sup. Ct. 461; Miller v. Harding, 167 N. C. 53, 83 S. E. 25; Rowe v. Moore, 89 S. C. 561, 72 S. E. 468. As to those included in the term "heirs," see §§ 850-852. 57 King v. Johnson, 117 Va. 49, 83 S. E. 1070. mous with “children,' overturn the intention of the testator.58 § 912. The Same Subject: "Heirs" as Meaning "Children." There is some confusion in decisions as to the effect which may be given to the intention of the testator. Where a life estate is given to one with a limitation to his heirs generally, and nothing appears in the will to further indicate the testator's intention, the life estate in the first taker is converted into a fee under the rule. But the testator may by following and connected provisions of his will affix a different meaning to the word "heirs" from that given it by law. Thus where the context of the will indicates that the testator did not use the word "heirs" in its technical sense, but meant thereby "children" and intended them to take as purchasers, the will is so construed. Indiana has gone further in this regard than 58 Conger v. Lowe, 124 Ind. 368, 9 L. R. A. 165, 24 N. E. 889. In Thompson v. Crump, 138 N. C. 32, 107 Am. St. Rep. 514, 50 S. E. 457, under a devise to the testator's son "for and during his natural life and after his death to his lawful heirs, born of his wife, and in case he shall have no such heirs to take the estate, in that case it is my will and desire that it shall go to" other persons mentioned, it was held that the words "born of his wife" qualified and explained the words "his lawful heirs" so as to confine the remainder to the children of his wife and thus prevent the operation of the rule in Shelley's Case. It was held that the superadded arum. In Mayer v. Walker, 214 Pa. St. 440, 63 Atl. 1011, where property was devised to a son or his lawful heirs, but if he should die without any lawful heirs to go to the children of the brother of the testator, it was held that "or" should be construed "and" and that "lawful heirs" meant "heirs of the body." Therefore the devise was in fee tail and enlarged by the act of 1855 into a fee simple; and that the rule in Shelley's Case did not apply for the gift to the son was without limit as to duration. other states, but in no case will the word "heirs" be construed to mean "children," unless the provisions of the will which modify the term "heirs" are clear and decis ive so as to leave no doubt as to the intention of the testator.59 It therefore becomes necessary to determine the meaning which the testator attached to the word "heirs" or "heirs of the body." If he meant to designate those persons who in law would be entitled to inherit the property from the first taker, as being in the line of descent from him, then the estate given is a fee simple. But if by the use of such words the testator meant to designate "children" simply, then the estate in the first taker is but a life estate, with remainder to the children.60 59 Jesson v. Wright, 2 Bligh 1, 56; Doe d. Gallini v. Gallini, 5 Barn. & Adol. 621; Lees v. Mosly, 1 You. & C. 589; Thornhill v. Hall, 2 Cl. & F. 22; Lambe v. Eames, L. R. 10 Eq. 267; Myrick v. Heard, 31 Fed. 241; Allen v. Craft, 109 Ind. 476, 58 Am. Rep. 425, 9 N. E. 919; Star Glass Co. v. Morey, 108 Mass. 570; Roseboom v. Roseboom, 81 N. Y. 356; Clarke v. Leupp, 88 N. Y. 228; Freeman v. Coit, 96 N. Y. 63; Hileman v. Bouslaugh, 13 Pa. St. 344, 53 Am. Dec. 474; In re Guthrie's Appeal, 37 Pa. St. 9; Powell v. Board of Domestic Missions, 49 Pa. St. 46, 53; Robins v. Quinliven, 79 Pa. St. 333. Indiana Rule: Ind. Rev. Stat. (1881) § 2567; Doe v. Jackman, 5 Ind. 283; Jones v. Miller, 13 Ind. 337; Hull v. Bealls, 23 Ind. 25; Siceloff v. Redman's Adm'r, 26 Ind. 251; Rapp v. Matthias, 35 Ind. 332; Helm v. Frisbie, 59 Ind. 526; McMahan v. Newcomer, 82 Ind. 565; Shimer v. Mann, 99 Ind. 190, 50 Am. Rep. 82; Ridgeway v. Lanphear, 99 Ind. 251; Hadlock v. Gray, 104 Ind. 596, 4 N. E. 167; Bailey v. Sanger, 108 Ind. 264; 9 N. E. 159; Hochstedler v. Hochstedler, 108 Ind. 506, 9 N. E. 467; Millett v. Ford, 109 Ind. 159, 8 N. E. 917; Allen v. Craft, 109 Ind. 476, 58 Am. Rep. 425, 9 N. E. 919; Granger v. Granger, 147 Ind. 95, 36 L. R. A. 186, 44 N. E. 189, 46 N. E. 80; Teal v. Richardson, 160 Ind. 119, 66 N. E. 535. See § 901, n. 15. 60 North v. Martin, 6 Sim. 266; Jordan v. Adams, 9 Com. B. N. S. 483; Granger v. Granger, 147 Ind. 95, 36 L. R. A. 186, 44 N. E. 189, 46 N. E. 80; Star Glass Co. v. Morey, 108 Mass. 570; Scott v. Guernsey, 48 N. Y. 106; King v. Beck, 15 Ohio 559; Urich's Ap Where the word "heirs" is coupled with the word "children," it is fair to presume that the testator intended to have the one word qualify or explain the other, and thus create an estate tail.61 Prima facie the word "children" is one of purchase and not of limitation, and uncontrolled by the context must be so construed;62 but where it clearly appears to have been used in the sense of "heirs" or "heirs of the body," the intention of the testator prevails and it is treated as a word of limitation.®3 § 913. "Children" as a Word of Purchase. The word "children," both technically and generally, is regarded as a word of description of persons, and in its technical sense is a word of purchase and not of limitation. The word does not ordinarily mean heirs, and peal, 86 Pa. St. 386, 27 Am. Rep. 707. In Pennsylvania, where the gift was to three nieces "share and share alike during their natural lives, and at their deaths to go to their heirs, in equal amount to all heirs living at the time of their deaths," it was held to vest a fee simple in the nieces. In re Cockin's & Harper's Appeal, 111 Pa. St. 26, 2 Atl. 363. A devise to three daughters "to have and to hold during their natural lives, and after their deaths then to the lawful issue of said three daughters and the heirs and assigns of such issue," has been construed within the rule and to confer only an estate of inheritance upon the issue.-Carroll v. Burns, 108 Pa. St. 386. "The great merit of the rule in Shelley's Case is that it frustrates and is intended to frustrate unreasonable restriction upon titles; for when an estate is declared to be a fee-simple or feetail, it is at once made subject to a limitation in its proper form, no matter how clear may be the testator's intention to the contrary.” -Walker v. Vincent, 19 Pa. St. 369. 61 Asper v. Stewart, 246 Pa. St. 251, 92 Atl. 133. 62 Kirby's Estate, 235 Pa. St. 542, 84 Atl. 455. 63 Hastings v. Engle, 217 Pa. St. 419, 66 Atl. 761. 64 Hanes v. Central Illinois Utilities Co., 262 Ill. 86, 104 N. E. 156; In re Guthrie's Appeal, 37 Pa. St. 9: Collins v. Williams, 98 Tenn. 525, 41 S. W. 1056; Bass v. Surls, (Tex. Civ. App.) 153 S. W. 914. |