May 12, 1902. The opinion of the Court was delivered by The practical question presented by the appeal herein is whether the plaintiffs, who are the children of Isaac Bishop, have an interest in the land in dispute, under the first deed of conveyance to Alice Bishop. The facts are set out in the decree of his Honor, the Circuit Judge, which will be reported. The conclusion of the Circuit Judge is so fully sustained by his reasoning that we deem it necessary to add only a few words.
The habendum clause of said deed is as follows: "To have and to hold all and singular the premises before mentioned unto the said Alice Bishop during the term of her natural life, and from and after her decease the land and premises above described shall belong in fee simple and absolute to her husband, Isaac Bishop, if he be alive, and to his lawful heirs to and for their sole use and benefit forever." The pivotal fact in the construction of said deed is that it was unquestionably the intention of the grantors to convey all their right, title and interest in the land in dispute. It cannot be successfully contended that the fee was conveyed to Alice Bishop, for she was only to have the land during her natural life. Nor can it be said that her husband, Isaac Bishop, became the owner of the land in fee, because the contingency upon which he was to take the land did not happen. The intention to dispose of the entire fee cannot be carried into effect, if we construe the words, "and to his lawful heirs to and for their sole use and benefit forever," as words of limitation, intended only to enlarge the estate of Isaac Bishop, if he should survive his wife. This intention may, however, be made effectual, if we construe the words as describing a class to take the remainder in the event of Isaac Bishop not being alive at the death of his wife. The word "heirs" in this case is a word of purchase and not of limitation. *Page 188
It is the judgment of this Court, that the judgment of the Circuit be affirmed.