Williams against McCall, 12 Conn. 328

Waite, J. The only question in this case, is, what estate was devised to Andrew V. Williams, by the will of his father. The lands were given to him, if he should have a lawful heir; but if he should have none, then after his decease, they were to be divided between his brothers and sisters. In construing wills, it is well established, that the intent of the testator, collected from the whole instrument, is to govern, unless inconsistent with some settled rule of law. What then was the in-jent testat0L* in this case ?

The fee conditional of the common law of England, has been long abolished in that country, and has never been recognized as part of the law of Connecticut. Hamilton & ux. v. Hempsted, 3 Day 339. The will, therefore, is not to be so construed as to create such an estate, unless it is apparent that such was the intent of the testator. We discover nothing in the will indicating any such intent. The testator could have had no object in devising the property to his son upon condition that he had a child. The design manifestly was, to benefit Andrew's children.

If he had the power of conveying away that property immediately upon the birth of a child, that design would be defeated. In England, it has been decided, in a great number of cases, that if an estate be devised to a man and his heirs, and if he die without leaving heirs, then to his brother, or any person who may be an heir, the word heirs shall be construed to mean heirs of the body, and the devise shall operate to convey an estate tail. Porter v. Bradley & al. 3 Term Rep. 143. The same doctrine has been recognized by this court. Hudson v. Wadsworth & al. 8 Conn. Rep. 348.

In this case, if Andrew had no heir, the lands devised to him were to go to his brothers and sisters. The intent of the testator manifestly was, that if he died without heirs of his body, the lands should go to the testator’s other children. The construction, therefore, to be given to the will, is, that it created an estate tail in Andrew, with remainder to his brothers and sisters. This construction is in conformity with established principles of law. Andrew', taking only an estate tail, had no power, by any conveyance of his, to defeat the estate of those in remainder.

The defendant, under the deed of Andrew, could hold no greater estate than Andrew had power to convey. We are, therefore, of opinion, that the decision in the superior court was right; and that no new trial ought to be granted. Williams, Ch. J. and Huntington, J. concurred in this opinion. Bissell and Church, Js., not being present when the case was argued, gave no opinion. New trial not to be granted.