delivered the opinion of the court.
This is a controversy between the heirs at law and the devisees of S. B. Moxley, deceased.
That part oí the will of the decedent, by which he disposes of his real estate, and under which the controversy arises, is in the following language, viz :
“jFirst. My beloved wife, Martha D. Moxley, is to 1 have the use of one-third of my landed estate du- ‘ ring her life, and at her death that part, with the bal- ‘ anee of my landed estate, is to be laid off into seven ‘ parts, to Mary Ann Shipman and her bodily heirs * one part, to Elizabeth Fullenwider and her bodily 4 heirs one part, to Nancy Moxley and her bodily heirs ‘ one part, to Martha Moxley and her bodily heirs ‘ one part, to Sampson B. Moxley and his bodily heirs '■ two parts, and to Mary Ann Blakemore and her 1 bodily heirs one part.” “And my brother William ‘ Moxley is to have the use of my mill farm during 1 his life.”
The testator made no disposition of any other part of his estate, nor does his will contain any other devise, except the foregoing, or any expression which tends to manifest his intention with respect to the matter in controversy between the parties.
The heirs at law claim, by descent, all the testator’s real estate, which was not devised for life to his widow, and his brother, until the termination of the widow’s life estate, at which time, and not before, as they contend, the other devises take effect, and the devisees become entitled to the land under the provisions of the will: On the other hand, the devisees contend that the will invests them with a right to all the land, immediately upon the death of the testator, except that part of it w'hich was devised for life, and that it is alone the division of it among the *173devisees which is postponed until the death of the widow.
A testator de vised to his widow' one-third of his landed estate during her life, “ an d at her death that part, with the balance of my(his)landed estate to be laid off into seven parts,” designating the persons who were to take, some of whom were his children and heirs at-law. Held, that until the death of the widow the heirs-at-law were entitled to the use of the lands, except the one-third which was devised to the widow.*173If the language of this devise be construed according to its ordinary grammatical sense it is evident that no interest in the land is given to the devisees during the life of the widow, but at her death the part devised to her, with the balance of his landed estate, is to be divided into seven parts, one of which he gives to each of the devisees. That is the time when they are to have the land according to the provisions of the will. No disposition of it, in the meantime, was made by the testator, and consequently it goes to his heirs at law during that time, unless by some rule of construction the devisees are entitled to it, notwithstanding it has not been expressly devised to them.
It has been decided, that where there is an express devise of part of the lands, to the person on whose decease the general devise is to take effect, the words at or after the death, will be applied exclusively to the lands devised expressly for life, by what is called the distributive construction; and the words of devise, without these expressions of postponement, will be applied to the rest of the property, which therefore passes immediately to the devisees. This rule of construction was applied in the cases of Simpson vs. Hornsby, and Doe on dem. Annandale vs. Brazier, referred to by Jarman on Wills, 1 vol., side page, 471.
It seems, however, that in the subsequent case of King vs. Inhabitants of Ringstead, 9 Barn, & Cress. 218, and which is referred to by the same author (side page, 473,) the court refused to apply to similar words a distributive construction, stating that in the above mentioned cases the intention of the testator, as collected from the context of the will, required such a construction as was given, and decided that until the decease of the tenant for life the estate not devised to her passed to the testator’s heir at law.
Now in this case the context of the will does not afford any evidence of an intention on the part of the testator that the words at her death are to be ap*174plied exclusively to the lands devised to her, and are not to be applied to the rest of the property. And as the devise which is to take effect at the death of the widow, is not exclusively to the heirs of the testator, although it embraces some of them, the rule which would include the heirs in such a case, on the ground that the testator cannot be supposed to mean, where he devises real estate to them at the death of his wife, that they should have any of it in the meantime, does not apply. Where the devise is to the heirs of the testator, then the distributive rule of construction should prevail, because, in consequence of the principle already adverted to, the estate would not pass to them as heirs, and unless it passed to them as devisees, under the operation of this rule of construction, the widow in a case like the present would take by implication, in the lands not expressly devised to her, an estate corresponding to that which she had in. the lands so devised, it being a settled rule of construction that a devise to the heir, after the death of another person, creates in that person an estate for life by implication. The contest then would be between the heirs as devisees, and the widow, and as the inference would be, as the testator had expressly given to the widow a life estate in part of the land only, that he did not intend her to have any interest in the residue of it, and as the heirs being devisees could not take by descent it would be proper to apply the distributive rule of construction, and thereby give the residue of the land, not expressly devised .to the widow, to the devisees.
Here, however, there is nothing to exclude the heirs at law, or to prevent the .estate, not devised until the death of the widow, from passing to them in the meantime. And as it is a maxim of the law that the heirs can only be excluded by express devise or necessary implication, and as there is no express devise of the land not given to the widow, until her death, and no implication arises in favor of the *175•widow, inasmuch as the devise which is to take effeet at her death is not to the heirs at law, they are not excluded in this case either by express devise or by necessary implication, and have a right to the landed estate of the testator, not devised for life, until the death of the widow, at which time the general devise of the land will take effect.
Wherefore, the judgment is affirmed.