The opinion of the court was delivered by
Kennedy, J.This case has grown out of the will of John Knight, dated the fifth day of January, 1761. That part of the will out of which the question to be decided arises, is in the following words. “ I give to my son Charles Knight my messuage and plantation situate in Abington, in the county of Philadelphia, the "which I had from my father, with the buildings and appertinances thereunto belonging, with the rents issues to.him during his natural life; and if he shall leave lawful issue, then to them, their heirs and assigns forever. But for want of such lawful issue, then it shall return to my son John Knight; and if he should leave no lawful issue after his decease, then to my next lawful heir, and to their heirs and assigns forever.”
*73At tbe date of the will the testator had another child, a daughter, named Rachel. Charles, the son, at this time had no issue ; nor had he any subsequently until after the death of the testator. The decision of the contest here depends upon the solution of the question, What estate did Charles take under the above devise?'
The case of Carter v. M‘Michael, in 10 Serg. & Rawle, 429, is not unlike the present. The application of the principles laid down by this court in that case, will go far towards deciding the question in this; The testator in that case gave to his son Edward two tracts of land, to hold to him and his assigns, for and during the term of his natural life, he making no waste or destruction of the timber thereupon, and paying thereout to the testator’s daughter Agness the sum of twenty pounds in gold or silver money, within the space of two years after his wife’s decease : and from and immediately after the decease of his son Edward, he devised one of the said tracts to his sons Joseph and Daniel, their heirs and assigns forever, as tenants in common; and the other to the heirs male of the body of his said son Edward, lawfully to be begotten, and the heirs and assigns of such heirs or heir male, forever; and for want of such heirs male, then to his said two sons Joseph and Daniel, their heirs and assigns forever, as tenants in common. The opinion of the court in this case was delivered by the late Chief Justice Tilghman, deciding that Edward, the devisee, thereby took an estate tail. Yet it is manifest from the words of the will, that the testator did not intend that he should have more than an estate for life; for he not only declares most expressly, that it shall he for and during the term, of his natural life, but further prohibits him from committing waste or destruction of the timber thereupon; thus depriving him of all privileges other than those of a mere tenant for life But in order to carry into effect the general intent of the testator, the court felt itself bound to disregard and overrule this particular design of the testator as respected Edward personally.
In the case now to be decided, the testator has employed no terms, which would seem to indicate a desire on his part to deprive Charles, the devisee, of the common and ordinary privileges of a tenant in fee tail. It is given to him with, the buildings and appurtenances thereunto belonging, with all the rents and issues thereof, to be used without any express restriction whatsoever. The words “ during his natural life,” it is true, are superadded, but it will be seen that these words have no effect, where they are opposed to the general intent of the testator, as in the case already cited. In that case the general intent of the testator was, that the male issue of Edujard should take, to the exclusion of all others, and that the estate should not go over so long as there were any of such issue in being. This intent, however, was incompatible with a mere life estate in Edward, and consistently with the rules of law, could not be effectuated without giving to him an estate tail male under the will, which was accordingly done by the decision of the court. So in the case before the court, it is manifest, that the general intent of John Knight, the tes*74tator, was, that immediately upon the decease of his son Charles, the estate devised to him, should go to the heirs generally of the body of Charles, and not to John, or any other, until after an indefinite failure of the issue of Charles. But upon such failure, whensoever it might happen, it is also equally manifest, that the testator intended, that it should pass to his son John, or his issue; and in the event of bis, and his issue, both being or becoming extinct, it was to go over. Now to hold that Charles, took but a life estate, as contended for. by the counsel for the defendant in error, and that his children have a remainder in fee, must necessarily defeat the remainder over to John and his issue ; because it is not only too remote to take effect consistently with the rules of law, but in short it leaves no remainder for them. The fee simple was all the testator had to give, and if that be now absolutely vested in the children of Charles, it is all and the most the testator ever had. But can this be permitted in accordance with the intention of the testator? Not well, indeed, unless we suppose, that the testator had a greater regard for the issue of Charles, who were not yet in being, and of whom, of course, he could know nothing, than he possessed for Charles himself, who was his first son, who had shared his most anxious cares as well as parental caresses for many years, and was about to be made the first object of his bounty : it seems incredible to say the least of it. Besides, to say that the testator intended to give Charles merely an estate for life with a remainder over in fee to his children living at his death, or as they came into life, would be declaring, that he had less regard for Charles, than he appears to have had for his son John, which is contrary to the whole tenor of the will. There is no reason for believing that the testator ever intended to give to Charles a less estate in the devise of this property to him, than he has limited over in remainder to his next son John upon the failure of issue on the. part of Charles. That the estate given over in remainder to John, is not a life estate, but an estate tail general by implication, it is believed, cannot, and will not be denied: and so far as personal feeling and attachment could have had an influence upon the testator, there is no reason to believe that he intended less for Charles. But admitting that there was some reason existing with the testator for his giving to John a greater estate, than he gave to Charles, is it not then reasonable, that he should also have felt • the more anxious to make John as secure as possible in the enjoyment of it, upon the happening of the event, on which it was.to go over to him ? So that viewed in either light, we would be led to say that Charles took an estate tail. Against this it has been contended, that by the very terms of the devise itself, an estate for life only is given to Charles. To this an answer has already been given ; which is, that in the construction of wills, to effect the general and main intent of the testator, where he has in limiting the duration of an estate devised, used the words “ for his life,” “ during his life,” or “ during his life and no longer,” they are set aside and disregarded. In addition to the case already quoted, the cases of *75Morris v. Le Gay, 2 Burr. 1102. Atk. 249. Coulson v. Coulson, 2 Stra. 1125. 2 Atk. 246. King v. Burchell, Amb. 379. 4 Term. Rep. 296. (note.) 3 Term. Rep. 145. (note a.) Dodson v. Grew, 2 Wils. 322, are referred to.
In the next place it is urged, that by the will, in the terms used for the devise in question, the property is given upon Charles death, to his “ issue,” and that the word “ issue,” is a word of purchase, and not of limitation. In legal construction it is certainly so considered, and never otherwise in the case of deeds. But in wills it may be taken either as a word of purchase, or of limitation, as will best answer and promote the intention of the testator. Hoge v. Hoge, 1 Serg. & Rawle, 155. Per Yeates, J. See also the cases referred to above.
Again, it is said, that the words of inheritance, which are engrafted on the limitation to the issue oí Charles, take this case out of the rule in Shelly’s Case; and the cases of Cheek v. Day, Moor, 593. Archer’s Case, 1 Rep. 66, and White v. Collins, Comyn Rep. 28, are relied on. In these cases, it is true, that the first taker of the estate was held to have only an estate for life, because the limitation over, after giving to A. as in Archer’s Case, for life, was to the next heir male of A. (in the singular number,) and to the heirs male of the body of such next heir male. The words “ heir male,” being in the singular number, and words of inheritance superadded, became designatio persona, the root oí a new inheritance, — the stock of a new descent. Luddington v. Kime, 1 Salk. 224. Ld. Raym. 203, is also cited and relied on. There the devise was to B. for life without impeachment of loaste, and in case he should have any issue male, then to such issue male, and his heirs for ever. Here, again, the words of inheritance are engrafted upon the word “issue,” in the singular number, as is demonstrated by the use of the pronoun “ his,” referring to “ issue.” Further it appears to have been the intention of the testator to make B. a tenant for life, otherwise it would have been unnecessary to have introduced words to protect him from the consequences of committing waste. Again, the limitation is to the issue male, and not to the issue generally of B., which would have been sufficient, it is conceived, to have constituted B. a tenant in tail. This last distinction is also a sufficient answer to the case of Beckhouse v. Wells, which has also been referred to by the counsel of the defendants in error.
The general rule laid down upon this point, as extracted from the cases by Mr. Fearne, in his treatise on Contingent Remainders, 181, is, if the words be “ heirs” or “ heirs of the body, &c.” and “ issue of the body” may be added to supply what is intended here by the “ Spc.” in the plural; in that case even words of limitation engrafted on them, if not inconsistent with the nature of the descent, pointed out by the first words, will not convert them into words of purchase. In the case of Dodson v. Grew, already mentioned, 2 Wils. 322, the word “ issue” was the term employed by the testator. He devised “ to A. *76for life, remainder to the issue male of his body lawfully to be begotten, and the heirs male of the body of such issue male, and for want of such issue male, over,” and held that A. took an estate tail.
In another case which has not been referred to, the devise was “ to A. for life, and after his decease to the issue of his body, and the heirs of such issue for ever ; and for want of such issue to B.” The court seemed to think that A. took an estate tail. Webb v. Puckey, cited in the 3d. American Edit, of 8th Lond. Edit. of Fearne on Cont. Rem. 203, (note). It would be difficult to point out any substantial difference between this last case and the one before the court.
The Court being unanimously of opinion, that Charles took an estate tail under the devise of the premises in question to him, and that the defendants in error are barred bjr the common recovery suffered by him, consider it, therefore, unnecessary to give any opinion upon the other questions raised in this case.
The Judgment of the Court below is reversed, and Judgment entered upon the special verdict for the plaiutiff in error, who is the defendant below.