Carter v. Reddish. language would by itself enlarge a life estate to a fee simple by implication. Then another branch of the condition, dying without issue," expressly limited to a particular time, and yet further by legal construction, not meaning a general failure of issue, therefore, never at any time held to restrict a fee, but always to make a condition for the devise over. There is nothing in the will which, by recognized rules of construction, can limit the fee simple, which was clearly given in the devising clause, and again in the habendum. Besides this, the devise over is unmistakably a fee given in substitution of the fee first given to testator's children, in case that fee should be defeated by the happening of specific conditions. 1 Redfield on Wills, 421. Edward Colston, also for plaintiff in error: We insist that Stevenson Reddish took a fee simple by the will of his father, Thomas Reddish, in the property in question, and that the children of Stevenson, who are the plaintiffs in this suit, took nothing under their grandfather's (Thomas Reddish) will. That by said will the children of Stevenson acquired no title whatever in or to the lands and other property devised to Stevenson. The words "during their natural lives and to their heirs," taken alone will convey a fee, by force of the rule in Shelley's case. See Fearne on Remainders, vol. 1, (marg.) p. 149, par. 20; Ib., (marg.) p. 193, last par. (3d Amer. from 8th Lond. ed.); Preston on Estates, 263, ch. 111, vol. 1; 4 Kent's Com. (marg.) 215; Williams on Real Property, top p. 248 (marg. p. 234) et seq.; Law Library, 7th vol. (Essay on Disposition of Real Estate); McFeely's Lessee v. Moore's Heirs, 5 Ohio, 465; Armstrong v. Zane's Heirs, 12 Ohio, 287; Beck, Adm'r of King, v. King's Heirs, 12 Ohio, 390. Section 53 of our present wills act (S. & C. 16, 26), which has abolished the above rule in this state, so far as its application to devises is concerned, was passed March 23, 1840 (see 1 Curwen, 691; sec. 47 of the wills act of Carter v. Reddish. 1840), nine years after the making and probating of this will. This will can not therefore be affected by this subsequent act of the legislature. De Peyster v. Clendenning, 8 Paige's Ch. 295, 304; Shoonmaker v. Sheely, 3 Hill (N. Y.), 165; 12 Ohio, 471. It is perfectly clear, then, that if the testator had stopped at the word "heirs," that if the will contained no other words descriptive of the quantity of interest than the words "to have and to hold during their natural lives, and to their heirs," that each child, Sarah and Stevenson Reddish, would have taken a fee in their respective devises. It remains to consider what effect the words immediately following the word "heirs" have. We deny that these words, "and in case of the decease of both of my aforesaid children before they be of maturity, according to law, and without lawful issue," which introduce the ulterior devise, have the effect of impairing the meaning of the word "heirs" occurring in the prior devise, so as to exempt that prior devise from the operation of the rule in Shelley's case. On the contrary, that these words do not refer at all to the quantity of estate bestowed by the first devise, but that they simply designate a contingency on the happening of which the estate created by the first devise, whatever is the quantity of that estate, shall pass over. The contingency named is the decease of both Sarah and Stevenson under maturity according to law -that is, under twenty-one, and without lawful issue. 1 Fearne, 149, 193; 4 Kent's Com. 214 et seq.; 5 Ohio, 465; 4 Preston on Estates, 273-284. As to the rule of construction where the testator uses legal words, see Fearne Con. Rem. 168 et seq.; and the multitude of cases there cited in margin; 2 Jarm. on Wills, top p. 204 (marg. p. 277) et seq.; Ib., top p. 526 (marg. p. 744), 17th rule of construction; 2 Williams' Ex. (2d Amer. ed.) 788, 789; Ide v. Ide, 5 Mass. 500; Mowat v. Carow, 7 Paige, 328; Lord Alvanley, in Poole v. Poole, 3 Bos. & Pul. 620; Carter v. Reddish. Lord Eldon, in Jesson v. Wright, 2 Bligh, 56; Lord Redesdale, in S. C. As to the construction to be given to the words “dying without issue," see 2 Jarman on Wills, 301, 418, 428; Williams on Real Prop. 210, n. 1; Parish's Heirs v. Ferris, 6 Ohio St. 563; Niles v. Gregory, 12 Ohio St. 320. As to what is meant by "heirs," see 2 Jar. on Wills, 204, top paging; 1 Fearne on Con. Rem. 149; 4 Pick. 198, 205; 2 Pick. 243; 19 Barb. 500; 31 Wend. 521; King v. Beck, 15 Ohio, 559; Stevenson v. Evans, 10 Ohio St. 307; Collier v. Collier, 3 Ohio St. 369; Niles v. Gray, 12 Ohio St. 320. Matthews, Ramsey & Matthews, for defendants in error: It is contended, on behalf of the defendants in error, that Stevenson Reddish had a life estate merely, with remainder in fee to the issue of Stevenson Reddish, who should survive him (or, what would be a legal equivalent under our statutes to restrict entailments-a fee tail in Stevenson Reddish), with remainder over by way of executory devise in the event that he should die under age, and without issue surviving him, to the surviving children of the testator's brother and sister. Parrish's Heirs v. Ferris et al., 6 Ohio St. 563. It may be, that, if the devise had been in these words, "I give and bequeath to my son Stevenson the following real estate," and it had stood alone, without any qualifying context, the estate of Stevenson would have been a fee simple. But that is not the case. The language cited is followed by the immediate context, "each of my aforesaid children to have and to hold the same during their natural lives, and to their heirs, and in case of the decease," etc. The plain, obvious, popular meaning is that he shall not convey it away from his children. When that life estate should be ended, he then gives it to the heirs of his son Stevenson; and who he meant by his son's heirs is evident enough, for he further provides, that if his son should die under age and without surviving issue, the estate intended Carter v. Reddish. for those heirs should go to the children of his brother and sister. His son's heirs, then, for whom he desires to make provision, are his son's issue living at his son's death. He provides first for his son; then for his son's issue, if he leave any; then, if he dies without leaving any, for his nephews and nieces. This, we submit, is the natural construction of the will -what would occur to plain people, looking at it merely to discover its meaning, and taking its language in its usual and ordinary sense, as opposed to the artificial and technical interpretation forced upon it by the use of arbitrary rules, applied in a cheap, mechanical, and inconsiderate way. Smith v. Hawkins, 27 Ohio St. 371; Harkness v. Corning, 24 Ohio St. 416. If, in the case at bar, the words "and to their heirs," occurring after the limitation to the testator's son and daughter, "during their natural lives," be restricted to mean "heirs of their bodies," or "issue," then, the estate devised would be an estate tail in Stevenson Reddish, executed by our statute to restrict entailments, in his issue, the plaintiff's below, as an estate in fee simple. Roddy v. Fitzgerald, 6 H. L. C. 823. And such a construction is supported by the consideration, elsewhere urged, that, as the ulterior limitation over was to take effect only on the death of the testator's son under age, and without issue, the intention was manifested that the issue of Stevenson were the persons described as his heirs. If so, it is immaterial whether they take by descent or by purchase. In the former case, their father had an estate tail; in the latter, an estate for life merely. The result, so far as this controversy is concerned, is the same either way. We can understand that a devise for life may be enlarged to an estate tail, by implication, arising in consequence of a limitation over or a dying without issue living, and before attaining a particular age; because, in such a case, the intention of the testator to make the issue of the first taker an object of his bounty is plain; and such an intention upon the limitations in Reddish's will would be strictly Carter v. Reddish. executed by the operation of our statute of 1811, to restrict entailments, which would make Stevenson Reddish the first donce in tail, but for his life only, perfecting the fee absolutely in his issue. The plain and manifest intention of the testator, to limit to his son Stevenson an estate for his life only, is expressly declared, and can be defeated only, if at all, by the application of the rule in the Shelley case. Whether that application will be made, depends on the effect this court will give to the decision in the case of King v. Beck, 15 Ohio, 559. According to that decision, it is impossible to distinguish this case from that. Since the passage of the act of 1840 relating to wills (sec. 47), no controversy could arise upon such limitations as are contained in Reddish's will. Did the testator use the words in question for the purpose of giving to his son and daughter, in case they attained full age, the absolute power of alienation; or did he use them to describe a class of persons to take the estate after the death of his son and daughter? Now, there is nothing whatever in the will, other than these very words themselves, to show that he meant to enlarge the estate of his son and daughter beyond an estate for life; and the use of the words descriptive of the estate given to them, "to have and to hold the same during their natural lives," is entirely inconsistent with such a result. A testator inops consilii, may be supposed to have used the words, "and to their heirs," in a vague and indeterminate sense, for the technical and popular usage, to which they are subject, differs and varies widely; but the phrase, "during their natural lives," as applied to an estate in lands, is not capable of ambiguity. The technical and popular meaning are identical and uniform. SCOTT, J. In the construction of a will, it is well settled as a paramount rule, in this state, that the intention of the testator, as gathered from the whole will, must control, when such intention is not in conflict with the law or |