HALLOWELL and Others against PHIPPS and Others, 2 Whart. 376

The opinion of the Court was delivered by Rogers, J. This case presents two points, 1st. Whether grandchildren are included in the limitation to the children; and secondly, whether the limitation over, is of a life estate, or in fee simple. Under a bequest to children, grandchildren and other remote issue are excluded, unless it be the apparent intention of the testator, disclosed by his will, to provide for the children of a deceased child.

But such construction can only arise, from a clear intention or necessary implication ; as where there are not other children than grandchildren, or when the term ‘children,’ is further explained by a limitation over, in default of issue. The word ‘ children’ does not ordinarily, and properly speaking, comprehend grandchildren, or issue generally.

Their being included in that term, is only permitted in two cases, viz. from necessity, which occurs when the will would remain inoperative, unless the sense of the word, ‘ children,’ were extended beyond its natural import; and where the testator has clearly shown by other words, that he did not intend to use the term ‘ children,’ in the proper actual meaning, but in a more extensive sense. In Reese v. Brymere, (4 Ves. 698,) Lord Alvanly held, that children may mean grandchildren, when there can be no other construction, as in Ratcliffe v. Buckley, (10 Ves. 198;) and in the Earl of Orford v.

Churchill, there appears to have been adopted the same opinion. In the last case, Sir William Grant says, that he never knew an instance where there were children, to answer the proper description, that grandchildren were permitted to share along with them, although where there is a total want of children, grandchildren have been let in under a liberal construction of the word ‘ children.’ Ratcliff v. Buckley, (10 Ves. 192.) Reeves v. Brymere, (4 Ves. 692.) Crook v. Brashier, (2 Ves. 107.) Roper on Legacies, 70. Poioel on Devises, 297, and Preston on Legacies.

The authorities abundantly support the position above cited, which are also recognised by the Supreme Court of this state, in Dickinson v. Lee, (4 Walts, 82). It was there held, that when it is necessary to effectuate a manifest intent, grandchildren may undoubtedly take by the designation of children, though that is by no means, the legal acceptation of the word.

They are suffered to do so, principally, if not exclusively in two cases; where the word is used, evidently as co-extensive with issue, which is a word of very general import, and where there are no children literally, to answer the description, and the grandchildren are let in, “ ut res magis valeat quam pereat.” Here, as there is no pretence to say that the grandchildren must be let in on the ground of necessity, as there' arfe, children to answer the description, the plaintiffs must support their claim, by showing that it was the clear, manifest intention of the testator, to use the term, not in its limited, but in its more extended sense.

The words of the will on which the question arises, are “in case of the death of any of my heirs, under age without issue, their portion to be equally divided among the rest of my children.”' The question turns on the point, whether the import of the word ‘ heirs,’ is restrained by that of * children,’ or the import of the word ‘ children,’ is to be enlarged by that of ‘ heirg.’ And’ we are of opinion that the latter clause of the codicil, restricts the sigriification of the term ‘ heirs;’ and this we think the most natural construction, and most in accordance with the authorities.

A person usually looks to his immediate, rather than his remote descendants, and particularly where those who are in a remote degree of consanguinity, are not under his peculiar care, but enjoy the protection of their .own natural guardians or parents. The state of the testator’s own family called for his special solicitude and anxious attention. It consisted of five minor children, and four of full age, in addition to which the testator had two grandchildren, the present plaintiffs, children of a daughter recently deceased, but who resided with their surviving parent.

And accordingly we find, that in the concluding clause of his" will, he appoints guardians for his children under age, and recommends them to his daughter Amy, for religious instruction’.

It is plain, that in the term ‘ children,’ he did not intend to include grandchildren,, by appointing guardians over children, whose parents were, alive, and of course did not need the fostering care which was necessary in the case of his own minor children, it is said that the testator at the time he made the codicil to his will was aware of the death of his daughter, and that under the term ‘ heirs,’ he meant to include them who would take under the intestate laws. Now, although the word ‘ heirs’ in Pennsylvania includes all who would take by descent, (M‘Clenachan v.

Thompson, 17 Serg. & Rawle, 110,) and would of course comprehend grandchildren whose parent was deceased, yet I do not think this such a clear manifestation of intention, as to alter or control the construction which we must otherwise give to the other terms of the will.

The word heirs, may, and often is construed to mean children, in order to effectuate the intention of the testator-; and I am inclined to believe that the testator had in view the devisees'enumerated in his will, and that his sole intention was to provide for the contingency of any of his minor children dying without issue under age, in which event he directs their portion to be divided among the rest of his children.

The cause is by means clear of difficulty, "but this is the most natural construction, and does less violence to the words, apparent intention, and rules of construction which have' been so repeatedly settled.

If we are at liberty to conjecture the’ reasons which operated in his mind, we may suppose that he was aware that the children of his deceased daughter, would take the share of their mother, under the act of the 19th of March, 1810, and this he may have supposed would be an ample share of his estate; that there were two of them, with the chance of survivorship between themselves; that they of course, could have no cause of complaint in this disposition, as they would form a class by themselves, and that in case of the death of either, their portion would go to the survivor, in exclusion of the uncle and aunts, the children'of-the testator.

But that the word, children, is used in its ordinary legal acceptation, and that heirs and children, in the view of the testator, are synonymous terms, would also appear from these considerations. “ In case of the death of any of my heirs under age, without issue, their portion to be equally divided among the rest of my children.” The latter clause explains the former, and indicates the meaning attached to the term ‘ heirs’ by the testator.

Where an unlettered person speaks of his heirs, he ordinarily means his children, at least the term is frequently used in that sense; and accordingly as has been before said, to effectuate the intention of the testator, the term ‘heirs’ has been frequently held to mean children. The property is to be divided among the rest of his children, not among the rest of his issue, or the rest of his heirs, and no reason has been assigned for this change of phraseology, when he designates the persons who are to take, on the happening of the contingency.

He would seem rather to have had in view his devisees, all of whom are named in his will, and that upon the contingency of the death of any of those under age, their portion should be limited over to such of his immediate descendants or children, who might then survive. The attention of the testator was called to the situation of his family, by the death of his daughter. He had five children in their minority, and four of full age. It was extremely probable in the natural course of things, that some of his minor children would die, before attaining the age of twenty-one, without issue.

The testator taking this into consideration, provides in case of such a contingency! the portion of such child should be divided among the rest of his children, referring, as was most natural, to his immediate, and not his remote descendants.

It has been before stated, that this case depends upon the question, whether the import of the word ‘ heirs,’ is restrained by that of ‘ children,’ or the import of the word ‘ children’ is to be enlarged by that of ‘ heirs.’ The counsel for the plaintiffs have endeavoured to show that the word heirs, is of paramount influence; that the word ‘ rest’ relates to heirs, and carries the same extended, comprehensive meaning, to the term children.

But this construction we cannot adopt, as these terms obviously relate to ‘ children,’ and show plainly, that by the term heirs, the testator intended to designate his devisees, or minor children. It is true, that when a testator uses the words children and issue indiscriminately, this has been held in several cases cited at the bar, such a manifestation of intention, as to include grandchildren. But in all those' cases, the court construed children, to mean issue, on account of the general apparent intent.

The testator indifferently used issue and children, which showed, as the court held, that he meant to .use children in the same sense as issue. But in this case, we see no indication, but the contrary, to enlarge the legal signification of the term children, by the term used in the first part of the codicil. The next question is, whether the limitation over is of a life estate, or in fee simple.

The devise to Frances is a fee simple, and the words of the will are, “ In case'of the death of any of my heirs under age, without issue, their, portion, to be equally divided among the rest of my children.” We think it very clear, that the testator intended that all he had devised to his minor children should go over, on the contingency of death, under age and without issue. Words which only describe the object devised, giv.e no more than an estate for life; but words which comprehend the quantum of the estate pass the fee. Morrison v. Sample, (6 Binn. 97.) The same principle is adopted and enforced in Neida v.

Neide, (4 Rawle, 97.) The ‘ portion,’ viz. the share, fortune, or estate of Frances was a fee simple in the real estate, and an interest in her mortgages of two thousand dollars, and this in case of the happening of a certain contingency, he directs should be divided among the rest of his children. No technical words are required to create a fee simple. Any expressions which indicate the intention to pass the whole interest is sufficient; and we have no doubt that under the term, ‘ portion,’ the whole estate passed. Judgment for the defendants.