It is evident that the testator (William Post, the elder,) drew his own will. It is probable that he had never heard rof the rule in Shelley’s case; and it is evident that he had no idea of any difference between gifts of personal and of real property.
There is really no devise of his real estate during the life of his wife, except perhaps of the unsettled lands in Mont*87gomery county; unless the devise of the rents and profits thereof during the life of his wife should be. considered as a devise of real estate itself during her life.
It is probable that the testator thought that his executors and executrixes would take his real as well as personal estate during the life of his wife, and could and would carry out his directions and intention as to the division of the rents and profits thereof during the life of his wife, without any express devise thereof to them during the life of his wife.
It is entirely immaterial now, as the wife is dead, whether the court, in her lifetime, would have implied a devise to the executors and executrixes in trust until her death, or would have considered the devise of the rents and profits, until that event, the same as a devise of the land itself.
The question now and in this case is, whether the testator’s sons, William and Gerardus, had or took, on the death of the testator’s wife, under the will, estates in fee or life estates with remainders in fee to their children.
The words of devise are clearly within the rule in Shelley’s case. The words are: “ After the decease of my wife, all the overplus of my real estate, of what kind soever, I devise unto my three children, William Post, Gerardus Post, and Mary J aggar, to be divided, &c., and after their decease, to go unto their legal heirs,” &c\
Again :• after a devise to Mary J aggar, and “ unto her heirs” of a lot in Front street, and a lot in Pearl street and half of another lot in Pearl street occupied by Thomas Service, the words of the will are : “ I devise unto my two sons, William Post and Gerardus Post, and unto their heirs, one half of my house and lot of ground in Pearl street, as the same now is divided, occupied by Thomas Service,” &c.
In a subsequent part of the will the testator says : “ And after the decease of my wife, all the real estate not herein specified, and all the real estate purchased with the money of my personal estate, I devise unto my sons, William and *88Gerardus Post, and unto their heirs, to be equally divided between them.”
In a subsequent part of the will we find these words: “After my real and personal estate shall be so respectively divided, it shall be held by my aforesaid children, during his her or their natural lives, respectively ; and upon his, her or their séveral decease, shall go to his, her or their heirs forever.”
= It would be difficult, I think, to state or word a devise more clearly within the rule in Shelley's case, than the devise to the children, or to the testator’s sons, William and Gerardus, after or upon the death of the testator’s wife. In the first place there is a direct devise to Mary Jaggar, and to his sons, William and Gerardus, in apt and proper words to give them estates in fee simple, absolute; and there might be a question whether the clause of the will last quoted, .in which the wish or direction is expressed, that the real and personal estate “ shall be held by my aforesaid children during his, her or their natural lives, respectively,” and then go to his, her or their legal heirs, even independent of the rule in Shelley’s case, would be considered as repugnant to, or inconsistent with, the absolute fees previously given; but it is not necessary to consider this question, for it is clear that there is nothing in this clause which takes the devise out of the rule in Shelley’s case ; indeed that it is this clause,- mainly, which gives any occasion or opportunity for the application of the rule in Shelley’s case, in construing the will.
As to the provision in favor of the widow or widower of a deceased child, out of the income, &c., it may refer to the death of a child before the death of the testator, or during the life of his wife; but if otherwise, I do not see how it can affect the devise to the children, or the question as to the nature or quantity of the estate they took.
As to the clause giving a child having no lawful issue a right to let his or her part for a term of years, &c„; and as to another clause, declaring that nothing contained in the *89will shall give either child a right to sell or dispose of his, her or their income or profits, &e. for a time to exceed one year; so far as these clauses were intended or may be-received as restrictions on the right or power of sale or disposition incident to the absolute estates in fee given to the children, they must be received as repugnant to the primary devise of such estates, and as of no force or effect. It is a rule of construction that a secondary intention, inconsistent with the primary intention, must yield to such primary intention. But I have some doubt whether the clauses last referred to were not intended to apply only during the life of the testator’s wife.
I think the order at special term appealed from should be reversed ; that the one tenth of the proceeds of the sale should be paid, not to Mrs. Leggett, but to Mr. Eastman, the trustee, according to the judgment in this action ; and that the trustee should be allowed a reasonable sum for his costs and expenses in protecting his right to the trust fund.
Clerke, J.The language employed by Chief Justice Savage, in Rogers v. Rogers, (3 Wend. 511,) borrowed in a great measure from the opinion of Mr. Justice Blackstone, in the Exchequer Chamber, in Perrin v. Blake, (Harg. Tr. 487,) is peculiarly applicable to the present case. He says : “ The rule in Shelley’s case is, that when the ancestor takes an estate of freehold, with remainder to his heirs, or heirs of his body, the word heirs is a word of limitation of the estate, and not of purchase; that is, in other words, that such remainder vests in the ancestor himself, and the heir, when he takes, shall take by descent from him, and not as a purchaser.” Of course he meant that the remainder should be given or limited in the same instrument in which the particular estate is given. “ This rule,” he proceeds, “ may give way to the manifest intention of the testator, provided that intent be so fully expressed as to leave no doubt whether it was his intent or not.” This was fully conceded by Mr. Justice *90Blackstone in Perrin v. Blake ; and in that case, while he did not doubt that the testator intended to give to his son only an estate for life, it was not at all clear what estate he intended to give to his son’s heirs, and in what way. If it is not certain, beyond the possibility of doubt, that he had a positive intention upon this point, it was held that the general rule of law must prevail; and the heirs must take by descent and not by purchase. They can not take as purchasers, unless it is affirmatively shown that he so intended. It was held that the restriction upon the son’s power of disposition did not sufficiently indicate that his heirs should take by purchase; and, accordingly, the decision in the King’s Bench, which created so much surprise, at the time, in the profession, was reversed in the Exchequer Chamber, by the opinion of seven judges against one.
In the case before us, it is still more dubious that the testator intended that the heirs of his son (Gerardus Post) should take by purchase. To -be sure, he devises, after the decease of his wife, all the overplus of his real estate to his three children, (of whom Gerardus was one,) and after their decease, to his legal heirs; and, in a subsequent clause, directs, after his real and personal estate shall be divided, that it shall be held by his aforesaid children during his, her or their natural lives, respectively ; and upon-his, her or their several decease, shall go to his, her or their legal heirs. But, in referring to the particular property in question, he devises unto his two sons, (one of whom was Gerardus,) and unto their heirs, one- half of the house and lot of ground in Pearl street, &c.; thus, as far as this clause is concerned, giving them, indisputably, an estate of inheritance. So that, taking the whole will into consideration, no such manifest intention of the testator can be discovered as to demand that the rule in Shelley’s case should give wTay to it. In the case already referred to, (Rogers v. Rogers, 3 Wend. 511,) and on which the counsel of S. Leggett seems to place great reliance, the testator gave to his son, for and during his natural life, and *91to the children of Ms body, lawfully begotten, after Ms decease, all that certain, &c. describing the premises, to have and to hold the said premises unto his said son for and during his natural life, and after his decease to the heirs of his body, &c.
[New York General Term, June 4, 1866.It has always been held that the rule in Shelley’s case does not apply where the words children, issue, sons, &c. are used instead of heirs; and accordingly, it was held in Rogers v. Rogers that the employment of the word “ children,” in the premises of the devise, took it out of the rule, and that the words “heirs of his body,” in the habendum, were used by the testator to designate the persons named in the premises.
RTo other word than “heirs” is used in the will before us, applicable to the quantity of interest, in the estate.
I concur with Justice Sutherland in tMnking that the order of the special term should be reversed.
Geo. G. Barnard, P. J. also concurred.
Order reversed.
Geo. G. Barnard, Clerke and Sutherland, Justices.]