The opinion of the Court was read October 3d, 1881, by
Sterrett, J.The wall of'Hugh McMullen, the elder, admitted to probate in March, 1793, contains the following provisions, upon *117the construction of which the present contention hinges, viz.: “ I give and devise to my two sons, Hugh and George McMullen, the plantation that I now live on, to be equally divided between them, to them, their heirs, and assigns forever. Subject to the payment of thirty shillings yearly to my daughter, Elizabeth, during her natural life, and one-third of the clear yearly rent to my beloved wife, during her natural life. It is also my will that if either of mv two sons, Hugh or George, should die without legitimate issue, that the survivor shall inherit the whole of the deceased’s part of the land aforesaid.....Further, it is my will that my said two sons shall neither rent, bargain, nor sell the land aforesaid, nor enter into agreements, indentures, or bargains of importance, before they arrive at the age of twenty-one years, but by the approbation and consent of my executors.” These are the only clauses in the will that can have any bearing on the question presented for our consideration. The testator left six children, of whom Hugh and George, then respectively sixteen and twelve years of age, were the youngest. They took possession of the farm devised to them by their father, and shortly afterwards divided the same between them. Hugh died intestate in ] 856, leaving two daughters, Elizabeth and Mary Ann, to whom he devised his portion of the land. In February, 1879, Mary Ann died intestate and without issue. A few days thereafter, Elizabeth, who had survived her husband, conveyed part of the land to Stone, one of the defendants below, and another part to Wall, the other defendant, and in October of the same year she died without issue. The issue of Hugh thus became extinct. George, the other devisee, died in December, 1850, leaving five children, all of whom have died since, leaving children, of whom the plaintiff below is one. During his lifetime, in 1819, G-eorge sold his part of the real estate, and the plaintiff sought to recover in this action not only that portion of the land devised to Hugh, but also that which George sold during his lifetime, and which by sundry conveyances had, in the meantime, passed to the defendants below. Inasmuch, however, as the purchasers from George and those claiming under them have been in continuous adverse possession since 1819, and as the right of action accrued in 1850, it was properly conceded that there could be no recovery as to that part of the land. ' But the statute of limitations has no application to Hugh’s portion, and the only question that arises in regard to it is: What estate did he take under his father’s will, an estate in fee simple or fee tail? This depends solely on whether the devise over was upon a definite or indefinite failure of issue. If it was the *118latter, the devisee clearly took only an estate tail, as the Court held, and in that event the judgment is right. In the first clause above quoted from the will, the testator devised his plantation to his two sons, “ their heirs and assigns forever.” Standing alone, the language thus employed would undoubtedly give them a fee simple; but it is well settled that a testator 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 in this mode, more frequently than in any other, is a particular estate given: Middleswarth’s Administrator v. Blackmore, 24 P. F. Smith, 414. The generality of the devise was so restricted in this case. In its legal signification, the word “issue” very nearly resembles the technical phrase “heirs of the body,” and it is well settled that when real estate is devised by one or more limitations in the same will, to a person and his issue, the word “ issue ” will be construed as a word of limitation, so as to give the ancestor an estate tail, unless there are expressions in the will unequivocally indicative of a contrary intent. Such expressions as “ if he die without issue,” “ on failure of issue,” “ for want of issue,” “ without leaving issue,” and the like, have frequently been considered ; and, when standing alone in a will, the law defines them and gives them a precise and certain signification. They import an indefinite failure of issue, and thus create an estate tail in the first taker. The technical meaning given to such phrases has long since become a settled rule of property from wdiich it would be unsafe to depart, except in cases that come clearly within a recognized exception to the rule. The following are a few of the many cases in which the subject has been considered: Clark v. Baker, 3 S. & R., 470 ; Eichelberger v. Barnitz, 9 Watts, 447 ; Langley v. Heald, 7 W. & S., 96 ; Eby v. Eby, 5 Barr, 463 ; Angle v. Brosius, 7 Wright, 187 ; Kleppner v. Laverty, 20 P. F. Smith, 70. According to these and other authorities that might be cited, the language employed by the testator, “ if either of my two sons, Hugh or George, should die without legitimate issue,” must be taken to mean an indefinite failure of issue ; from, which it follows that the devisee took an estate tail.
But while the rule of law which thus fixes the meaning of certain forms of expression is, in a certain sense, an unbending one, it is not without some exceptions. It is conceded, as already intimated, that the construction referred to will give way when the will contains other expressions which clearly indicate that the technical words were intended to have a different meaning. The cases, however, show that the intent, not to use the words in their legal sense, must be *119unequivocal, and so plain that no one can misundei'stand it: Angle v. Brosius, supra ; Guthrie’s Appeal, 1 Wright, 9; Physick’s Appeal, 14 Wright, 128. In an early English case we have an instance in which the legal sense was controlled by plain and unequivocal words. The testator died leaving issue three sons, William, Thomas, and Richard. He devised land to Thomas subject to the payment of twenty pounds to Richard at the age of twenty-one years, and then provided that if Thomas died “ without issue, living William, his brother,” the latter should have the lands in fee. The question was whether Thomas took an estate in fee or fee tail, and it was held that the clause “ without issue, living William,” did not mean an indefinite failure of issue, but a dying, in the lifetime of William, without issue.
It is claimed by the plaintiffs in error that the death of whichever of the two sons might happen to die first was the period fixed by the testator when the failure of issue was to occur, and that this definite failure of issue is indicated by the concluding words of the devising clause, “ the survivor shall inherit,” etc. In support of this view, Anderson v. Jackson, 16 John, 882, -is cited. In that case there was a devise in fee to two sons, with a- subsequent direction that “ if either of the said sous should depart this life without lawfful issue, his share or part should go to the survivor;” and it was held that the words of the devise created a defeasable fee in the first taker, with a limitation over by way of executory devise. But that case is contrary to the general current of authority both in England and here; and the same may be said of Johnson v. Currin, 10 Barr, 498, and other cases that are supposed to recognize the same doctrine. All the cases in which the question has been considered, with very few exceptions, are opposed to giving any such effect to the word “ survivor ” as is claimed for it by the plaintiff in error: Wilson v. Dyson, Raym., 426 ; Chadock v Cowly, Cro. Jac., 495 ; Roe v. Scott et al., 2 Fearne, 287 ; Haines v. Witmer, 2 Yeates, 400 ; Clark v. Baker, 3 S. & R., 470 ; Heffner v. Knepper, 6 Watts, 18 ; Lapsley v. Lapsley, 9 Barr, 130; Smith’s Appeal, 11 Harris, 9 ; Rancel v. Cresswell, 6 Casey, 158 ; Hope v. Rusha, 7 Norris, 127. In one of the English cases, Roe v. Scott et al., supra, the words were “ if either of my three sons shall depart this life without issue of his or their bodies, then the estate or estates of such sons shall go to the survivors or survivor;” and they were held to create an estate tail. The devise in Smith’s Appeal was of real and personal property to the testator’s children, with a provision that in ease of the death of any of them without issue, his or her share should be equally divided among the survivors, *120and, as to the land, it was held to pass an estate tail to the first taker.
The subsequent clause in regard to renting or selling the land can have no effect on the construction of the will, so far, at least, as the present question is concerned. All the questions arising in the case are so well discussed, and the authorities so fully cited in the opinion of the learned judge of the Common Pleas, that it is unnecessary to add anything to what is there so well said.
Judgment affirmed.