The opinion of the Court was delivered by
Rogers, J.If we were at liberty to guess at the intention of the testator, it is possible we might come to the conclusion that it was not his intention to die intestate as to any part of his property; that his two daughters by his first wife, Susanna and Rosanna, should have nothing except the bequests in his will, and his children by the second wife should be the residuary legatees. The will is evidently imperfect on its face, whether the effect of carelessness or design we may conjecture, but cannot with any certainty say; so that it would be impossible for us to fill up, with any degree of exactness, that which the testator has left incomplete. For example, it would be difficult to determine, if his design had been carried out, whether he would have left the residue of his estate to one or more of his five children, or to all, or whether his other children would have been permitted to come in in equal or unequal proportions. As we are not allowed to speculate, we must judge of his intentions from what is written. He devises to his wife the whole of his estate, real and personal, during life, and appoints her the guardian of his or her children, under, as we may believe, the confident expectation that out of this ample bequest she would provide for their wants during their minority. But, as an equivalent for this, he bequeaths to his two daughters the sum of $50 each, and no more, to be paid by his wife, who was his executrix. But to what do the words “ no more,” attached to the bequest to his daughters, refer ? Do they refer to his whole estate, disposed and undisposed of by his will, or only to the estate devised to his widow during life ? This is the point on which the case turns. If we adopt the latter construction, we produce something approaching equality (and equality is equity) in the distribution; and I am the more inclined to *287this construction, because there is nothing in the will which necessarily leads to an implication of a different intention. In support of the former interpretation, the plaintiff in error relies on the case of Vachell v. Breton, (5 Bro. P. C. 51). He contends that the testator has manifested his intention that his daughters, Susanna and Rosanna, shall recover out of his real and personal estate, of whatever description, whether bequeathed or not, no more than $50 each, and therefore that the property, whether real or personal, must be divided in the same manner as if he had died intestate, with the exception that by force of his declared intention his two daughters by his first wife are excluded. And if this was the case of personal property, as appears by the case cited, there would be something in the argument. But this is real estate, as to which a different rule prevails. It is a maxim which applies here as well as in England, that an heir-at-law can only be disinherited by express devise or necessary implication; and that implication has been defined to'be. such á strong probability, that an intention to the contrary cannot be supposed. Thus it has been settled that a devise to 'the, devisor’s heirs, after the death of A., will give A. an estate for life by implication; but that under a devise to B., a stranger, after the death of A., no estate will arise to A. This Mr Bowel, in his Treatise on Devises, page 199, says is an exact illustration of the difference between what the law denominates a necessary-implication, and one which is not so. In the former case, the inference that the devisor intends to give an estate for life to A. is irresistible, as he cannot without the greatest absurdity be supposed to mean to give, his land to his heir at the death of A., and that the heir shall have it in the mean time, as would be the case unless A. took it. On the contrary, when the devise is not to the heir, however, it may be, by fixing the death of A. as the period when the devise to B. was to take effect in possession, the devisor intended he should have it for life, yet it is possible to suppose that,-intending that the land should go to the heir during the life of A., he left it for that period undisposed of. That the daughters, who are the heirs of the testator, are disinherited by express words, is not urged; but it is argued that they are so by an implication arising from the words of the bequest'; but it seems to me that the expression that they shall have $50, and no more, of his real and personal estate, does not raise such a strong probability, as has been shown, as that a contrary intention may not be supposed. Indeed, the difficulty arising from the imperfection of the will is, to ascertain what the testator did intend. His intention is at best but matter of conjecture, and certainly, on such grounds, no person heretofore has been deprived of his inheritance.
Judgment affirmed.