After advisement, the following opinion was delivered :
By the Chief Justice.The bill was filed, in this case, for the purpose, among other things, of settling the construction of a particular devise in the will of Walter Wood, which took effect by the death of the testator before the abrogation by our Revised Statutes of the rule in Shelley’s case. This rule of construction, it is insisted, is applicable to the clause in question, and vests in the first takers the fee of the real estate devised, and an absolute interest in the personalty. On the other hand, it is contended that the rule is inapplicable, upon a settled course of decision founded upon the particular phraseology of the clause and character of the devise, it being an executory trust; that we are bound to look at the intent and meaning of the testator, as derived from the scope and languagé of the instrument, the effect of which is, to limit the estate to the first takers for life, with remainder over in fee to their children.
The rule in Shelley’s case, to state it in a simple form, as applicable to the one under review, if at all, is as follows : that where land is given by deed, or will, to a person for life, and after his decease, remainder to his heirs, the word heirs is to be construed as a word of limitation merely, and vests the fee of the estate in the first taker. Upon this rule, the children of the testator claim an absolute estate in the property devised.
But co-eval with the rule, it has been held, that where there are any superadded words in the deed or devise,— words of explanation, which plainly show that the grantor or devisor did not mean to use the term heirs in a technical sense, but merely as a description of persons to whom he intends the estate shall go after the death of the first taker, *19the court will effectuate such intent, and restrain the grant or devise to an estate for life. (12 Wendell, 34.) The heirs then are regarded as purchasers, constituting a new stock with reference to whom the future succession shall be regulated.
Another well settled modification of the rule exists in respect to the execution of executory trusts.—There the court, in decreeing the execution, departs from what would be the legal operation of the words limiting the trust, when applied to legal estates, and consults the intention of the testator, as plainly manifested by the language of the will. The case of Papillon v. Voice, 2 P. Wms. 471, strongly/ illustrates this distinction. There, a direct devise of lands to B for life, with remainder over to the heirs of his body, was construed to vest an estate tail in B ; but a devise of money to trustees, in trust, to be laid out in land and settled in the same manner, was directed by the court to be conveyed in strict settlement, so as to take it out of the operation of the rule, observing, that the diversity was between the will’s passing a legal estate, and leaving the estate executory, so that the party must come into court in order to have the benefit of the will; that in the latter case the intention should take place, and not the strict rules of law.
I do not intend to go over the cases. The Chancellor has referred to several in his opinion, and shown by his examination, as well as by reference to the highest elementary authority, that this distinction, upon which he has placed the decision of the case, has been a fixed and a settled rule of construction for some hundred and fifty years, and obviously, cannot be departed from without seriously endangering the titles to real property.
Another reason for not troubling the court with any elaborate examination of the cases, is, that in 1830 the Revised Statutes abrogated the rule in Shelley’s case, and substituted in its place the exception—the one I suppose applicable here—and although the act 'does not apply to estates vested previous to the passage of the law, as in *20the case before us, the effect is to make the rule itself of comparitively little importance, as a rule of property in this s|ate. The act provides (1 R. S. 719, §28,) that where a remainder shall be limited to the heirs, or heirs of the body of the person to whom a life estate is given in the same premises, the persons who shall be the heirs, or heirs of the body of the tenant for life, at the termination of the life estate, shall take as purchasers.
The testator devised, with some exceptions not material to notice, the whole of his real and personal estate to his executors, and after giving some general directions for the management thereof during an interval of six years, he orders, that, as soon as practicable thereafter they shall divide the estate into as many shares as there shall be children then alive, and as shall have died leaving lawful issue, and by some proper deed convey one of the shares to each of his said children, and in like manner to the lawful issue of the child deceased ;—and then adds, that “ in each deed or writing executed to any one of my children, shall also be inserted and expressed a clause limiting such grant or interest conveyed to the grantee for life, with remainder over to the right heirs of such grantee, their heirs and assigns forever.” The devise here is an executory trust in the hands of the executors, to be carried into execution according to the directions given in this clause of the will, and agreeably to the rule of interpretation above stated in such cases, we are to look after the intent of the testator, to be gathered from the language he has used in giving his directions ; and if we are at liberty to do so, it seems to me impossible to entertain a doubt upon the case. No other rational meaning can be given to the special clause to be thus inserted in the conveyance, than that he intended the estate should be limited to his children for their lives only. What confirms this view is, that no such clause is directed to be inserted in the deed to the issue of the deceased child —manifesting a.clear distinction in the two cases in the same clause of the will. It is conceded, they take a fee, *21and if the testator had intended the children should likewise take a fee, why give directions for this special limitation to them for life.
There were some objections taken on the argument to the devise to the executors, and the powers with which they are clothed ; and also as to the time within which the estate is to be settled upon the children ; but I have not been able to discover that they are well founded. The executors took the legal estate, and all the directions and limitations prescribed in the course of the execution of the trust, appear to be unexceptionable and in conformity to law.
On the question being put, Shall this decree he reversed 1 all the members of the court present at the argument of the cause answered in the negative. Whereupon the decree of the Chancellor was unanimously Affirmed.