(dissenting): I regret that I cannot
concur in the construction accorded to the will of the decedent by the majority of this Court. This dissent is based upon two grounds:
1. I am unable to distinguish this case upon principle from Jamison v. McWhorter, 7 Houst. (12 Del.) 242, 31 A. 517. The facts of the present case, however, make it a much stronger case for the application of the Rule in Shelley’s case than that cited.
2. I am of the opinion that an examination of the whole will of the decedent compels the application of the Rule of Shelley’s Case. I readily concede that the Rule should be construed most strictly, and only applied when *418the context requires it. Being a rule of law, however, I feel that it must be applied when a testamentary context comes clearly within its terms. In this case the testator gave to his niece a property “for and during her lifetime and no longer.” The will then provides:
“And after the death of my niece if she leaves lawfull issue of her body it is my will that the above described real estate shall go to the child or children of my said niece their heirs or assigns forever. In case my said niece should die without leaving lawfull heirs of her body then and in such case” the property goes over to a nephew and others.
The record discloses that the niece, still living at upwards of eighty years of age, has not now and never has had any child or children.
The question for solution is whether the testator referred to a definite or indefinite inheritable succession, or as otherwise expressed, whether the testator intended that those taking after the death of the niece should take by and through her as a continuing line or whether, at her death, the then takers would take directly from the testator ás a root of a new line of succession.
The will uses the words “lawfull issue of her body,” “child or children” and “lawfull heirs of her body.” I readily concede that the words “child or children” are presumptively words of purchase and not words of limitation, and when used in their natural sense refer to the immediate issue. This construction, however, is not always an absolute one and, according to the intention of the testator, the words “child or children” may be words of limitation. It seems to me that this must be especially true when the words are used in connection with “lawfull heirs of the body” and there were no children at the date of the will or at the death of the testator, and so the words “child or children” could not be “descriptio personarum.”
If the will had stopped after saying that if the niece should leave “lawfull issue of her body” that the property should go “to the child or children of my said niece, their *419heirs and assigns forever,” I would agree that the words “child or children” should be constructed as used in their, ordinary sense of importing issue of the first generation and would be words of purchase and not words of limitation. In such case the words “child or children” would probably qualify and limit the flexible words “lawfull issue of her body” and the niece would take but a life estate. Where, however, the quoted words are followed by other words, and the ultimate devise to the nephew is limited to take effect only “in case my said niece shall die without leaving lawfull heirs of her body,” I think that a different construction must apply. For the suggested construction to be applicable the words “lawfull heirs of her body” must be circumscribed and limited and construed as synonymous with “child or children.” The words “child or children” are, of course, included in . the terms “heirs of the body,” but the latter term is much more comprehensive and the two terms are not, in general synonymous. If the niece had left a grandchild and no child or children to survive her, the devise over to the nephew would have been defeated according to my interpretation of the words “lawfull heirs of the body.” I think there would have been an estate tail in the niece which could have been barred by her and converted into a fee simple estate but which, if not barred, would have vested the estate in the grand-child. This would not have been the effect if "lawfull heirs of the body” was used as a synonym for “child or children.” In such case, if the niece had left a grandchild, but no child or children, then in default of child or children the estate would go over to the nephew and the grandchild would have taken nothing, notwithstanding the devise over was only in default of “lawful heirs of the body.”
The term “lawfull heirs of her body” is a technical term which has a definite meaning and, unless clearly used in a different sense, means that the words are words of limitation and not of purchase, and import an indefinite failure of issue and not the failure to leave child or children.
*420When the testator has provided that the property should go in the first instance to the niece for life, and “if she leave lawfull issue” then to “her child or children their heirs or assigns,” and follows this with a provision that in case the niece “should die without leaving lawfull heirs of her body” then over to a nephew, then and in such case it seems to me that the testator clearly intended that the property should not pass to the nephew until the line of the niece’s descendants had been completely exhausted.
Inclining to the belief that the intention of the testator was that those who were to take the property after' the death of the niece should take it by and through her as an indefinite line of succession, and not at the death of the niece take it from the testator as a new line of succession, so I must hold the interest an estate tail in the first taker which has become by virtue of the deeds a fee simple estate.
I arrive at the conclusion here reached with diffidence, and with a full appreciation of the reasonableness of the majority opinion.
Speakman, J., concurs.