•Opinion,
Mr. Justice Clark:The single question for the determination of this court is, what estate did Hannah R. Shalters take under the will of Nicholas Seidel, deceased, dated October 1, 1849, and proved June 4,1850 ? The clause of the will which gives rise to the controversy is as follows, viz.:
“ Also, I give and devise to my daughter Hannah, intermarried with Francis B. Shalters, and to her heirs and assigns, forever, the three-storied brick tavern and the ground and stable thereto belonging, as it is now possessed and occupied by George Kalbach, situate on the north side of Penn street, . . . ; the said real estate to be enjoyed by my said daughter Hannah, during her natural life, to her sole and separate use, to the exclusion of her husband; she shall not be at liberty to sell or encumber the same, and her receipts from time to time shall be a sufficient discharge for the rents thereof; and immediately after her death the said real estate shall vest in and be enjoyed by. the lawful issue of my said daughter Hannah, excepting that if my said son-in-law, Francis B. Shalters, shall survive his, wife, he shall during his lifetime enjoy the rents, issues, and profits of one third of the said real estate.”
• It is plain that the devise to his daughter Hannah, her heirs and assigns, forever, standing alone, would be a fee-simple; but whilst a testator, having given a fee-simple, cannot denude it of incidents and properties, he may nevertheless afterwards devise a less estate. As this court said in Haldeman v. Haldeman, 40 Pa. 34, “ he may restrain the generality of a devise by subsequent expressions, and convert that which otherwise would have been a fee-simple into an inferior interest; and more frequently in this mode than in any other is a particular estate given. A reduction of the quantum of a gift is allowable, while all attempted alterations of its qualities may prove inoperative.”
*357After making this devise, in words which of themselves would without doubt create a fee-simple, the testator further provides: “ The said real estate to be enjoyed by my said daughter Hannah, during her natural life, to her sole and separate use, to the exclusion of her husband; she shall not be at liberty to sell or encumber the same, and her receipts from time to time shall be a sufficient discharge for the rents thereof.” As Hannah R. Shalters was at the time a married woman, the effect of this was to create an equitable estate for her separate use during coverture. The instrument clearly speaks the testator’s intention to bar the husband’s marital rights. It is a matter of no consequence that a trustee was not appointed, for equity will supply a trustee, who under the terms of this will would be the mere depository of the title: Wright v. Brown, 44 Pa. 224; MacConnell v. Lindsay, 131 Pa. 476. The creation and existence of a sepa^rate use is sufficient to support the trust during coverture against the effect of the statute of uses: Bacon’s App., 57 Pa. 504; Rife v. Greyer, 59 Pa. 393; Dodson v. Ball, 60 Pa. 492; Little v. Wilcox, 119 Pa. 439; MacConnell v. Lindsay, supra. The trust for coverture is not inconsistent with her ownership of the fee. The provision last quoted, therefore, would not necessarily have any effect to reduce or lessen the estate previously given. If the will stopped here, Hannah R. Shalters would have had an equitable separate estate during coverture, and when the purposes of the trust were satisfied, she would be vested in possession, as she was previously vested in the title of the absolute fee.
But the testator further provides : “And immediately after her death, the said real estate shall vest in and be enjoyed by the lawful issue of my said daughter Hannah, excepting that if my said son-in-law, Francis B. Shalters, shall survive his wife,, he shall during his lifetime enjoy the rents, issues, and profits, of one third of said estate.” The appellant’s contention is that the effect of this clause is to create an estate in tail; that the “ heirs ” entitled at the death of the first taker are not her heirs generally, as might appear from the words originally employed, but the heirs of her body, her “ lawful issue ; ” that, although bj* the second clause quoted the testator restrained the devise to a life-estate only, yet his intention is manifested that her lawful issue shall take as the heirs of her body, which they could *358not do without a previous estate of inheritance in her, and that thereby she must be held to take an estate in tail under the rule in Shelley’s Case; for, granting the testator’s intention that his daughter should have a life-estate only, that particular intent would be sacrificed, under the rule, to the ascertained general purpose of the testator that her lawful issue should take as the heirs of her body.
' Upon this theory of the case, it was suggested at the argument that, as her estate was equitable and the estate of those entitled at her decease was legal, the estate for life and in remainder would not coalesce so as to create an estate in fee or in tail. It is well settled that the interest limited to the ancestor and to the heirs must be of the same quality; that is to say, both must be legal or both equitable: Little v. Wilcox, 119 Pa. 440; Bacon’s App., supra; 1 Fearne on Rem., 52-56. But Francis B. Shalters, the husband, died on July 5, 1873, in the lifetime of his wife; and at the instant of discoverture the equitable estate of the wife was executed, and thenceforth her estate was legal, not equitable. When the purpose of the special trust for the use of the testator’s daughter had been satisfied by the death of her husband, it stood then for the sole benefit of a single woman, and was at once executed under the statute of uses: Steacy v. Rice, 27 Pa. 75; McKee v. McKinley, 33 Pa. 92; Freyvogle v. Hughes, 56 Pa. 228; Megargee v. Naglee, 64 Pa. 216; Williams’s App., 83 Pa. 377; Little v. Wilcox, supra.
The whole question turns, then, upon the effect of that clause of the will last quoted. Whilst this clause would certainly indicate that the word “ heirs,” as originally employed, was not intended to signify heirs generally, so as to create a fee-simple, it is by no means clear that the “lawful issue ” was intended to take as the heirs of the body of the first taker. “ The word 4 issue ’ in a will is to be construed either as a word of limitation or of purchase, as will best effectuate the intention of the testator, gathered from the entire instrument. Prima facie, however, the word means ‘heirs of the body,’ and is to be construed as a word of limitation and not of purchase, unless there be something on the face of the will to show it was intended to have a less extended meaning, and to be applied to children only, or to a particular class, or at a particular time: ” Reinoehl *359v. Shirk, 119 Pa. 113. It is plain that the will is most unskilfully drawn: the testator or his scrivener would seem to have had some knowledge of technical terms and phrases, but knew little as to their proper meaning and effect. From the indiscriminate use of terms of technical import, the testator’s intention is left in the greatest possible obscurity.
The real estate of a married woman, whether held under the statute or in trust for the separate use of herself and her heirs, descends at her death according to the intestate laws, and this saves to the husband his right as tenant by the curtesy: Dubs v. Dubs, 31 Pa. 149; Van Rensselaer v. Dunkin, 24 Pa. 252; Ege v. Medlar, 82 Pa. 86; Rank v. Rank, 120 Pa. 191; unless, in case of a separate use, by the terms of the will or settlement the marital rights, in this respect, are expressly excluded: Cochran v. O’Hern, 4 W. & S. 95; Stokes v. McKibbin, 13 Pa. 267; Rigler v. Cloud, 14 Pa. 361; Yarnall’s App., 70 Pa. 336. By the will of Nicholas Seidel, deceased, the real estate in question was to be enjoyed by his daughter Hannah, “ during her natural life, to her sole and separate use, to the exclusion of her husband,” and “immediately after her death” the same was to “vest in, and be enjoyed by the ‘lawful issue’” of the said Hannah, excepting that, in case he should survive his wife, her husband was to have, during his life, one third of the rents, issues, and profits. The husband’s curtesy could not have been excluded from the grant in more apt words. This feature of the testator’s will affords strong proof that the provision for the issue of his daughter was merely a designatio personarum for a new inheritance at her death; for he not only denies the husband his curtesy, but devises him a new and entirely different interest. A devise in such form evidences the testator’s intent not to create an estate to which curtesy was incident. In Roberts v. Dixwell, 1 Atk. 607, (cited in Garth v. Baldwin, 2 Ves. Sr. 652, nomine, Sands v. Dixwell,) a testator directed his trustees to convejr lands, in trust for the separate use of his daughter for her life and so as her husband should not intermeddle therewith, and after her decease, in trust for the heirs of her body. Lord Haedwtckk held this to be an executory trust; and therefore, to prevent the husband becoming tenant by the curtesy, which he could not be consistently with the testator’s intention, he decreed that the *360daughter should be made tenant for life only, and not tenant in tail: See 1 Jarman on Wills, 125.
Additional light, however, is thrown upon the testator’s purpose in the residuary clause, in which he directed, if any or all of his daughters should request his executors to invest their shares, or any one of their shares, in the residuary estate, in real estate, it should be the duty of his executors so to invest it, “ for the sole and separate use of mj1- said daughters, respectively, during their lives, and after their death to go in fee-simple to their children or lawful issue, the same as I devised to them the other real estate in the former part of my will,” etc. This reference to the previous devise in the residuary clause, being in the language of the testator himself, is explanatory of his intention that the lawful issue of his daughter were not to take by limitation, but by purchase, and by way of remainder in fee, for his purpose is here plainly declared that his daughter’s lawful issue, that is, her “ children,” shall at her death take in fee-simple, and, of course, this would give the daughter a life-estate only. We think the learned judge of the court below was right in his conclusions that Amanda S. Ladd had no interest in the partition proceedings.
. The judgment is affirmed.’