#### Blackmore *versus*Hickman.

1. A testator gave to “ my son Jonathan the Bamsay farm, . . . out of which I direct him to pay to my wife $500.” He then gave a number of pecuniary legacies. He authorized his executors to sell all the balance of his estate, real and personal, and out of the proceeds to pay the pecuniary legacies; but if there should not be enough, “ my son Jonathan is direoted to pay the same at $25 per annum until the deficiency is made up. ... I further direct that in case my son Jonathan should die without leaving any legitimate issue, then it is my will that the real estate'herein bequeathed to him shall be sold, and after the payment of all the specified sums hereinbefore mentioned, it is my will that of the balance remaining $1000 shall be paid to the Foreign Missionary Soeiety, etc., $500 to the Board of Education,” etc., and the remainder amongst his grandchildren “ that is now or hereafter may be born, etc. I wish to be understood that any of my grandchildren who shall be guilty of having an illegitimate child, or of .the sin of intemperance, or that profane, etc., God’s holy name, he, she, or they do forever debar themselves from the benefit of any bequest,” etc., and their shares should be divided amongst their brothers and sisters, “ whose life and conversation is free from reproach.” *SCeld,*that Jonathan’s estate was defeasible on his death without issue.

2. The clause, “in case Jonathan should die without leaving any legitimate issue, then it is my will that the real estate shall be sold,” without more, would import an indefinite failure of issue. But the direction to pay sums of money from the proceeds of sale to living persons, debarring those grandchildren who • committed offences, and giving the forfeited shares to those who should not, and other provisions in the will, manifested that a definite failure was intended.

3. Middleswarth *v.*Blaekmore, 24 P. F. Smith, 414, re-affirmed.

November —, 1875.

Before Agnew, C. J., Sharswood, ■Williams, Merour, Gordon, Paxson, and Woodward, J J.

Error to the Court of Common Pleas of *Allegheny County,*No. 1, of October and November Tei’m, 1875, No. 178.

This was an action of ejectment, brought February 17th, 1874, by John Hickman, administrator d. b. n. c. t. a. of Moses Middleswarth, deceased, against James Blaekmore, 'Samuel Blaekmore, by his guardian, etc., Christopher L. Graff, Patrick McCue, and Martin Lutz.

The question was upon the construction of the will of Moses Middleswarth, who died in' July, 1842, having left a will without date, but proved July 23d, 1842.

After directing the payment of his debts, etc., he gave to his wife a farm during widowhood, and also $500, to be paid to her as thereinafter directed. . Then followed the clause devising the land the subject of this controversy, viz.:

“ Second, I devise and bequeath unto my son, Jonathan Middleswarth, the Ramsey place or farm, the land I bought *289of John McKown, the land I bought of Henry Baldwin, Esq,, and the lot of ground I bought of John McDowell, and the lot of ground 1 bought from Samuel Stewart, out of which I direct him to pay to my beloved wife Elizabeth the above-specified five hundred dollars, to be paid in ten annual instalments of fifty dollars each, and if not *all*paid in her lifetime, she is to have the disposal of it to who or whom she shall think best; after the marriage or death of my wife Elizabeth, I direct that the real estate devised to her during her widowhood, shall be disposed of as soon as circumstances will admit ; and I further direct that the proceeds arising from the sale of this portion of my real estate shall be equally divided amongst the legitimate children of my son, Jesse Middleswarth (now deceased), the legitimate children that is or may be born by my daughter Zabia Henry, and (six other daughters) to share and share alike.”

He gave also to each of his seven daughters $2500, to be paid in one year after his death, and to his daughter Elizabeth, in addition to this bequest, the interest of $1000, to be paid to her from April 1 st, 1834, until one year after his death. He gave some other legacies of money; and $500 to the Presbyterian Foreign Missionary Society, to be paid in ten annual instalments. He appointed Jonathan Middleswarth, his son, and three others his executors, and further provided:

“ And I hereby authorize and empower my executors to sell, dispose, and convert into cash, all the balance of my estate, real, personal, or mixed, whatsoever or wheresoever situate, and whether in possession or otherwise, and out of the proceeds of the same to pay the pecuniary legacies hereinbefore specified, and if there should be any surplus, I direct it to be equally divided among my said daughters or their legal representatives. If there should not be funds enough to pay the said pecuniary legacies, my son Jonathan is directed to pay the same, at the rate of twenty-five dollars per annum, to each of my daughters, until the deficiency is made up. . . .

“ 1 further direct that in case my son Jonathan should die without leaving any legitimate issue, then it is my will that the real estate herein bequeathed to him shall be.sold, and after the payment of all the specified sums hereinbefore mentioned, which is enjoined on him to pay, then it is my desire and will, that of the balance remaining, one thousand dollars shall be paid by my executors, or the surviving ones of them, to the Foreign Missionary Society of the Presbyterian Church, and five hundred dollars to the General Assembly’s Board of Education, as soon as convenient, and the balance remaining after this I direct to be equally divided amongst *290all my legitimate grandchildren, that is now or may hereafter be born, to share and share alike. And now I wish it to be distinctly understood, that any of my grandchildren who shall be guilty of having an illegitimate child, or is guilty of the sin of intemperance, or that do wickedly and irreverently profane God’s holy name, that he, she, or they do by such conduct, forever debar themselves from the benefit of any bequest herein made by me to them, and the share or shares of such one or ones, shall be equally divided among the brothers and sisters of such one or ones, whose life and conversation is free from reproach.”

Letters testamentary were granted to- Samuel Stewart and John Chess, the other two executors having renounced.

On the 1st of June, 1846, Jonathan Middleswarth, assuming that he held an estate tail, conveyed the land to William Wood for the purpose of barring the entail, and on the 29th of June Wood reconveyed it to Middleswarth, who, on the 7th of July, 1853, conveyed to Thomas Blackmore ; he, by his will, proved December 9th, 1858, devised it to James Black-more and Samuel K. Blackmore, defendants.

Jonathan Middleswarth died in 1869, unmarried, and without issue.

The executors having died, letters of administration d. b. n. e. t. a. were granted to John Hickman, the plaintiff, February 18th, 1871.

The ease was tried May 19th, 1875,before Sterrett, P. J., the only question being the construction of the devise to Jonathan Middleswarth.

The Court charged, amongst other things:

. . . “ Under the will of his father, Jonathan Middleswarth took a defeasible estate; and if you find that he died unmarried and without issue, as is claimed by the plaintiff', we instruct you, as matter of law, that the estate terminated at the death of Jonathan, and your verdict should be in favor of the plaintiff for so much of the land in controversy as was •devised to Jonathan by his father.” . . .

The verdict was for the plaintiff’.

The defendants sued out a writ of error, and assigned the instruction of the Court for ei’ror.

*JR. 8. Woods*and *T. MacConnell,*for plaintiffs in error.

The clause dividing the land would give a fee; but if it gave but a life estate, dying without issue would enlarge it into an estate tail: James's Case, 1 Yeates, 332; Evans *v.*Davis, 3 Washington, C. C. Re., 369. The words “dying without leaving issue,” would not imply a definite failure: 4 Kent’s Comm., 277.; Clark *v.*Baker, 3 S. & R., 478 ; Og*291den’s Appeal, 20 P. F. Smith, 501. In Criley *v.*Chamberlain, 6 Casey, 161, dying without leaving lawful issue was followed by a direction to sell, and divide amongst collateral heirs. It was held to be an estate tail. A similar principle was announced in Fahrney v. Hollsinger, 14 P. F. Smith, 392.

J. *Gi. Bryant, H. W. Weir,*and i?. *M. Gibson,*for defendants in error.

The construction should be given which is consistent with the whole scheme of the will: Middleswarth *v.*Blackmore, 24 P. F. Smith, 414, on this same will. Though “issue” in a will *prima facie*means “ heirs of the body,” yet the words may mean children, if the face of the will shows that was the intent that they should be so limited: Powell *v.*Board of Domestic Missions, 13 Wright, 46; Taylor *v.*Taylor, 13 P. F. Smith, 481; Hill v. Hill, 24 Id., 173. Courts will look at the circumstances under which the devisor makes his will, the state of his property, his family, and the like: 2 Jarman on Wills, 742 ; 2 Powell on Devises, 6. A construction which tends to destroy the symmetry of a will, will give way to one which harmonizes all the dispositions of the testator and accomplishes his intentions: Earp’s Will, 1 Parsons, 457; Barclay *v.*Lewis, 17 P. F. Smith, 320. “Dying without leaving legitimate issue” alone would make an estate tail, but when there are words that show the failure is to be at the death, it is a definite failure: Bamfield *v.*Welton, 2 Bos. & Pul., 234; Porter *v.*Bradley, 3 Term. It., 143; Pells *v.*Brown, Cro. Jac., 590 ; Eichelberger *v.*Barnitz, 9 Watts, 450. When a thing is directed to be done by some person living: Smith on Executory Interests, 559, 560 ; Fahrney *v.*Hollsinger; Taylor *v.*Taylor, *supra.*Where the preceding devisee would take a fee the convenience is all on the side of the restricted construction, which makes the fee defeasible on his not having issue living at his death, and puts it out of the power of the first taker if he took in tail to defeat the ulterior estate. Where the first taker gets but a life estate, the restricted construction imputes an improbable intention to the testator, as it raises no estate tail in the first taker, nor an implied estate by purchase, in the issue; the land goes absolutely from the devisee at his death, whether he have heirs or not: 2 Jarman on Wills, 440, 441; Hauer *v.*Schitz, 3 Yeates, 235 ; B. C. 2 Binney, 532; Johnson *v.*Currin, 10 Barr, 498; Curran *v.*McMeen, 5 P. F. Smith, 489; Hawkins on Wills, 206, 209; McCullough *v.*Fenton, 15 P. F. Smith, 418.

Judgment was entered in the Supreme Court, November 15th, 1875.

*292Per Curiam:

¥e adhere to our former decision upon the will of Moses Middleswarth, that the devise over to make sale if his son Jonathan should die without leaving any legitimate issue, was intended by the testator to be upon a definite failure of issue: 24 P. F. Smith, 414. But our decision was not rested, as it has been erroneously thought, upon the language of the devise over. That, according to many authorities, imported only an indefinite failure of issue. But following the manifest intention of the testator himself, evidenced clearly in the succeeding portions of the will, and guided by this intent as the polar star of interpretation, we have no doubt he meant a definite failure of issue at the death of Jonathan. These portions of the will, and their meaning, are stated very clearly in the opinion of Mercur, J. It seemed to us then, and it seems to us pow, that when he directed the sale to be then made, that is, on the death of . Jonathan, and the sums of money with which Jonathan was charged, to-be paid out of the proceeds of sale to his widow in ten instalments by his executor, his widow and his executor being living parties at the making of his will, and when he directed distribution to be made of the remainder among his legitimate grandchildren *then*living, as well as those to be after born, and provided that if any of the grandchildren should have an illegitimate child, or be guilty of fornication or intemperance, or'profanity, such grandchildren should be debarred from a share, and that the share or shares be equally divided amongst, the *brothers*and *sisters*whose lives are free from reproach, the testator could have in view nothing else than the period of Jonathan’s death without issue living at that time, and that then the sale should be made, the charges on the land paid, and distribution made among living grandchildren and those after born, the forfeiture then ensuing to the benefit of the brothers and sisters, who, of course, were also living persons, and of the same generation. The whole scope of the. will leads to this result; while it is evident, that the decisions relied upon were made entirely upon the effect of the language of the devise over to sell without reference to the intention of the testator as declared by the succeeding parts of the will.

Judgment affirmed.