Woods' Appeal

The opinion of the Court was delivered, by

Lewis, J.

The will of Nathan Ramsey was executed on the 8th October, 1819, and the testator died in 1837. He devised the half part of his real estate “ to his legal and natural heirs, and their heirs for ever, to be divided among them in equal shares, to be share and share alike.” If the testator had died in 1819, at the time of making his will, the children of his nephews and nieces would have answered the description of “ heirs,” under the law then existing. But at the time of his death, in 1837, they did not answejr that description, inasmuch as the Act of 1833 abolished the right of representation among collaterals, after brothers’ and sisters’ children. And the question in this case is, whether the decedent intended to give his estate to those who would answer the description of “heirs,” according to the law existing at the time of malcing the will, or to those who were recognised as heirs by the law in existence at the time of his death.

It cannot be pretended that the estate was given to those who would have been his heirs had he died at the time of making the will. Such a construction would defeat the children of Richard Woods altogether. He was living at the date of the will, but died before the testator; and the latter died before the enactment of the statute of 1844, which, under other circumstances, might have saved a devise to Richard Woods from becoming void by his death before it vested. Another effect of this construction would be to give to each of the nephews, and the children of nephews, a share equal to the share of the testator’s own brothers and sisters. This could scarcely be supposed to accord with his intention; for the latter were nearer in degree to the testator, and may fairly be presumed to have been the preferred objects of his bounty. In the case of a testator who was married, a still more startling effect might be produced by such a construction. Children might be born afterwards; but these would be entirely excluded, because they were not in existence to answer the description of “ heirs” at the time required by this construction; and the whole estate would thus go to collaterals, in remote degrees, who happened to answer the description of “heirs” at the time of making the will. This construction is therefore entirely inadmissible. It is clear that the testator looked to the time of his death, as the period when the estates were to vest. But the main question still remains: what individuals were intended to take them? Those who filled the description of “ heirs” according to the law existing at the date of the will? or those who answered that designation under the law existing at the death of the testator ? The intention must control.

There can be no “heirs” in the life of the ancestor, and the use of this term is a strong indication that he had no particular persons in view as the favorite objects of his bounty, and that he looked to the period of his death as the time for ascertaining the persons who were to take under that description. When he made use of a term of known legal signification, and one which cannot, according to the rules of law, apply to any persons but those who answer that description at his death, we are bound to believe that he used the term in its legal sense; unless there is something in the will to indicate a contrary intention : Smith’s Executory Int. sec. 211, part 2, ch. 2. We have no right to interpolate a word for the purpose of reading his will as a devise to the presumptive heirs, and thus deprive the “ legal heirs” of the estate expressly devised to them. In Baskin’s Appeal, 3 Barr 307, it was decided that the statute of distribution is to be resorted to, in the ease of a bequest to “ all the heirs,” for the purpose of ascertaining' “who are to take, and the quantum of the estate.” In Powell on Devises, 282 note, the rule is stated that “ where a devise or bequest is simply to a testator’s next of kin, it vests in those who sustain the character at Ms death.” And the same rule prevails even “where the devise is to a person for life, or for any other limited interest, and afterwards to the next of Jcin.” Powell on Devises, 284 note; 1 Cox. 131; 3 B. C. C. 234 ; 4 Ib. 207; 3 East 278; 3 Mer. 689. Where words of general description are used, “ they must be considered as referring to the death of the testator, “ unless by the context, or by express words they plainly appear to be intended otherwise.” Powell on Devises, 286 note ; Smith’s Ex. Int. sec. 214, part 2, ch. 2. In the will before us there is nothing to take the case out of the general rule of construction. And it is important to the peace of society, and to the stability of titles that we should not, for light causes, depart from the general rule of construction which, under a bequest or devise to “ heirs,” gives the estate to those who answer that description at the death of testator.

It is ordered and decreed that the decree of the Court below, ordering the decree of the 12th February, 1850, to be “so amended that the complainants (below) receive from the executor of testator the sum of $74.00f-, with interest from the 12th February, 1850,” be reversed.

And it is further ordered and decreed that the decree of the 12th February, 1850, be affirmed.