In this case two questions arise. 1st. Did Patrick Moore take an estate for life or in fee simple, under the trust deed from himself and his wife to Robert MiClenachan, his wife having died before him, leaving issue a child which also died before him? 2d. If he took but an estate for life, was his estate strengthened or enlarged by the deed to him from Robert MiClenachan?
1. It is agreed that the trust deed is to be construed liberally, so as best to effectuate the intent of the parties. The question is, what was that intent? It is evident that after giving the estate to the husband and wife for their joint lives, there was a design to provide for the moment when the marriage should be dissolved by the death of either of them. If the wife survived, she was to take the fee-simple. If she died first and left issue, the husband was to have an estate for his life; but if no issue, then in fee. As to the children, inasmuch as the father was to hold the estate during his life., nothing was to vest in them until his death; and then the estate" was to vest in such children as should be at that time *392living, as joint-tenants in fee. This is the main intent of the parties; and it seems to me, that we are perplexed, not with any difficulty in the construction of the deed, arising out of the expressions contained in it, but by an event not foreseen, and therefore not intended to be provided for; I mean, the death of the infant a few days after the death of the mother. It seems hard, that so short a life should deprive the husband of a fee simple; and we cannot help asking ourselves, if this could have been intended. But it is dangerous to indulge such reflections, because they lead us from the fair construction of the deed as it is written, which is the only thing we have a right to consider. To return to the deed then. It first provides, that in case the joint estate for life shall determine by the death of the wife, leaving issue, then the husband shall take for life. Thus far it is plain beyond doubt, that if there was issue at the time of the wife’s death, the husband was to have no more than an estate for life. Next follows a provision for the issue; after which it is said, “ but in case of the de- “ termination of the joint estate for life of them the said “ Patrick Moore and Hannah his wife, herein before limited, “ by the death of the said Hannah before the said Patrick “ -without issue, then in trust for the said Patrick Moore, his “ heirs and assigns” -&c. The case here provided for, is the determination of the joint estate by the wife’s death without issue. Now the joint estate was determined at the instant of the wife’s death; and consequently that is the point of time, to which the dying without issue relates. And this is in exact conformity with the former expressions of the wife’s death leaving issue, and makes the whole deed consistent.
But we are asked by the defendant’s counsel, to strain the construction of these words dying -without issue, and to understand by them a death leaving issue, which should die in the life of the father. I say, to strain the construction; because, if we adopt this sense, we must reject those words which confine the dying without issue, to the time when the joint estate is determined. Besides, although in point of law, Mrs. Moore may be said to have died without issue before her husband, notwithstanding she in fact left issue at the time of her death, yet that is not the most obvious meaning of those expressions. It is a construction introduced for the purpose of preventing the general intent of an instrument of *393writing from being defeated, and was first resorted to from necessity. Now here is no such necessity. If the husband takes but an estate for life, the remainder goes where, unless there is a clear intent to the contrary, it ought to go, to the heirs of the wife to whom the estate belonged. This is a case, in which it is proper to give those words, dying without issue, their natural meaning. I am therefore of opinion, that in thé event which has happened, the husband took an estate for life and no more.
2. The second point was founded on an idea, that even supposing that Patrick Moore took but an estate for life, yet he obtained an indefeasible estate in fee by the conveyance of Robert MiClenachan the trustee, who it was supposed took not only the whole legal estate by virtue of the trust deed, but also all that part of the equitable estate, which was not disposed, of by the deed. This point has, upon reflection, been very candidly abandoned by the counsel for the defendant. It certainly was not tenable. It was the manifest intention of the parties, that the trustee should take no beneficial interest by this deed. The consideration of ten shillings was merely nominal, and inserted for no other purpose than to raise an use, by which the legal estate might be vested in the trustee. This being the case, a Resulting trust arose by implication of law, for the benefit of Mrs. Moore, to whom the property belonged, for all such part of the equitable estate, as was not disposed of by the ¿Leed. It follows, that the lessor of the plaintiff, who is the heir both o.f Mrs. Moore and her child, is entitled to call on the defendant for a conveyance of the legal estate. I am therefore of opinion that the motion for a new trial should be denied, and that judgment should be entered for the plaintiff.
Ye ates J. of the same opinion. Brackenridge J. of the same opinion.Motion denied, and Judgment for plaintiff.