delivered tire opinion of the court, January 5th; 1885. •
The fee to the land in dispute was, on the 27th of September, 1855, in Robert Evans, who has since deceased, and under and from whom, as children of his daughter Ann, intermarried with Howell H. Jeffries, the plaintiffs claim title. On the other hand the defendants claim under the said Howell H. Jeffries, to whom, with his wife Ann, at the date above mentioned, Robert Evans executed the agreement or conveyance, the construction of which gives rise to the present contention. Jeffries is still alive, but his wife, Ann, is now dead, and was so at the commencement of this suit, so that the question, turns upon the title of Jeffries and his vendees, the defendants. The court below holding that there was, by the conveyance above referred to, a life estate in the said Jeffries which he was at liberty to convey, non-suited the plaintiffs. We think that in this there was no error. The agreement of the 27th of September is, on the point in controversy, i. e., the right of Jeffries to sell his life estate, somewhat obscure, but we do not see that we can make a better construction of it than did the learned Judge of the Common Pleas. Those parts of the agreement material to this controversy are as follows : “ That said Robert Evans of the first part agrees to give his farm unto the said Howell H. Jeffries and Ann, his wife, to farm during his natural lifetime, for the consideration of keeping him comfortably in food and clothing and necessaries. Said. Robert Evans further agrees that after his decease said Howell H. Jeffries and Ann, his wife, shall have said farm for their use during their lifetime, and after their decease to go to their heirs after them forever, provided said Ann Jeffries will leave any children, otherwise the farm is to go to the nearest relations of said Robert Evans. Said Howell H. Jeffries and Ann, his wife, agree to fulfil the foregoing conditions, and also *413agree not to transfer or sell tbeir right of aforementioned farm to any person whomsoever. For be it understood, that said Robert Evans grants no power to sell or transfer the privilege of these presents to any other than the within named Howell IT. Jeffries and Ann, his wife.”
This agreement, as construed in the court below, and as we also are inclined to construe it, does not involve tbe question of forfeiture for a breach of tbe condition in restraint of sale. Had Jeffries and bis wife attempted a sale of the premises during the lifetime of Robert Evans, the question as above stated would have been pertinent and material, but as nothing of the kind was done until after the death of Robert Evans, and of Ann, his daughter, this subject, under the construction winch we have adopted, requires no discussion.
The first part of the agreement amounts to a mere lease of the farm during tbe life of Evans, and the condition, for obvious reasons, restrains a sale of this right during that period, but wo cannot see that it prohibits the sale of the superadded life estate which commenced at tbe death of the grantor. Tbe very contrary seems, in a blind way, to be indicated in tbe latter part of the condition: “ For be it understood, that said Robert Evans grants no power to sell or transfer the privilege of these presents to any other than the within named Howell H. Jeffries and Ann, his wife.” Tins would seem to indicate that he intended to grant a power of sale to Jeffries and his wife jointly, and as the first clause of the condition seems to exclude such power as to the right granted (luring the life of Evans, it must apply to the life estate. It is true that lie may have intended that such sale should be made only by tlie joint conveyance of the husband and wife, but as tbe wife was dead at the time of the conveyance to Grumbling, her rights had then vested in him, and bis deed was as effectual to convey the title as would have been a joint deed executed in her lifetime : McCurdy & Stevenson v. Canning, 14 P. F. S. 39.
We agree, however, with the counsel for the plaintiff in error, that no greater estate than for the life of Howell H. Jeffries is vested in the defendants. Pie had no greater estate to convey, for by the conveyance of Evans the fee was vested in the children of Ann Jeffries.
Standing alone, of course tbe woads, “ and after their decease to go to their heirs after them forever,” would put a fee in the grantees, but the immediate context so qualifies the word “heirs” as to show that the grantor really meant children. “Provided said Ami Jeffries will leave any children, otherwise the farm is to go to the nearest relations of the said Robert Evans.” Here is so clear a definition of the intention *414of the .grantor that it cannot be overlooked, and it must control the preceding expression. It was urged that the word “ heirs” in a deed is a term of art, and cannot be controlled by the context, and in support of this Hileman v. Bouslaugh, 1 Har. 344, has been cited. But in Huss v. Stephens, 1 P. F, S. 282, the contrary doctrine was announced, and in the recent case of Mergenthaler’s Appeal, 15 W. N. C. 441 this court held as follows: “In Huss v. Stephens, 1 P. F. S. 282, it was held, that in deeds as in wills the intent of the grantor is to be taken as the cardinal rule for their construction, and though Hileman v. Bouslaugh, 1 Har. 344, would seem to support a different doctrine, yet it may now be regarded as settled that even technical words of limitation, found in an executed conveyance, may be so qualified by the context as to make them conform to the intention of the grantor.” As, however, the life estate was sufficient to support the ruling of the court below, its judgment must be affirmed.
The judgment of the court below is now affirmed.