#### *Alfred J. Lemacks*& *wife vs. Dr. Henry C. Glover*& *others.*

Testator bequeathed ‘the use of’ personal property to his sister Jane, and after her death, bequeathed ‘the same to the heirs of her body, to them and their heirs and assigns forever.’ Held, (1) that the words ‘heirs of the body’ were words of purchase; (2) that all who answered the description of heirs of the body at the death of Jane were entitled; and (3) that they took *per capita*and not *per stirpes.*

*Before*Dunkin, Ch, *at*Colleton, February, 1843.

*The Chancellor.*The will of Peter Sinkler bears date in December, 1791, and was proved in February, 1792. So much of it as is important in this case is in the following terms, viz:

“ The one moiety of the rest and remainder of my personal estate, I give and bequeath to my wife Mary, in lieu of her right of dower, to her and her heirs and assigns forever. The other moiety of my said personal estate, I give and bequeath to my son James, when he attains the age of twenty-one years or day of marriage, to him and his heirs and assigns forever; in case my son James should die under the age of twenty-one years, or before marriage, I then give and bequeath to my God*142son, William Walter, ten negroes, *to be taken in*families, to him and his heirs and assigns forever; and the rest and residue of my personal estate, I leave the use of to my sister, Jane Glover, and after her death, I give and bequeath the same to the heirs of her body, to them and their heirs and assigns forever.”

James Sinkler, the son, died under age and unmarried. After paying the debts, and delivering to William Walter the negroes bequeathed to him, the executors delivered to Mrs. Jane Glover the residue of the negroes, about sixteen in number, being those included in the moiety held by the executors for the son, James Sinkler. Mrs Jane Glover survived the testator, Peter Sinkler, about fifty-one years, having departed this life on the 5th Dec. 1842. By the residuary clause of her will, she bequeaths as follows, viz : “ The balance, if any, that may be collected together, with all my household and kitchen furniture, and all other property, real or personal, that I may have any right, title and interest in, I give to my beloved son, Dr. H. C. Glover, to him, his heirs and assigns forever.”

Dr. H. C. Glover, who was appointed executor, proved *the*will, and qualified thereon, and took possession of the negroes bequeathed to his mother by the will of her brother, Peter Sink-ler, which negroes are now forty-two in number. It appears that at the death of Peter Sinkler, Mrs. Glover was a married woman, with two children, to wit, Dr.' H. C. Glover and his brother, Sinkler, which latter died soon after in infancy. At the death of James Sinkler, the son, Dr. H. 0. Glover was the only child of his mother. She afterwards had four other children, *to*wit, Peter S. Glover, Wilson Glover, Elizabeth, (afterwards Mrs. Jones,) and the complainant, Jane M. Lemacks — of these four children, all, exeept Mrs. Lamacks, died before their mother. Peter S. Left three children, Wilson left two children, and Mrs. Jones left three children, all which children, with Dr. H. C. Glover, are parties defendants.

The proceedings are altogether amicable between the parties, and were promptly prepared, with the assent and co-operation of the executor, for the purpose of having their several rights ascertained and declared by the appropriate tribunal.

It may be as well first to notice the interest of the son, James Sinkler. It is said this was an absolute estate, defeasible on his. death under age and unmarried. This seems a mistake, although it might not vary the result. The bequest is to James, *“when*he attains the age of twenty-one years, or day of marriage.” In *143*¡Seabrook vs. Seabrook,*McM. Eq. 210, the rule is stated: A *direct bequest to*A, *“payable*at, or *to be*paid” at or when he shall attain twenty-one years of age, is a vested legacy; but if these words, are omitted, and the legacies are given at twenty-one, or if, in case of, *when,*or provided, the legatee attain •twenty-one, these expressions annex the time to the substance of the legacy, and make the legatee’s right depend upon his being alive at the period fixed. In the same case it was held that, on the death of the legatee previous to the period fixed, the legacy would fall into the *residuum*and pass to the residuary legatee. See *Cambridge vs. Rous,*8 Ves. 25.

Then, it is said the limitation to the heirs of the body of Mrs. Glover is too remote, and that she consequently took an absolute estate ; whether this proposition, if correct, would benefit the defendants, must depend upon the solution of another inquiry, hereafter to be made. If Mrs. Glover took an absolute estate, the property vested in her husbsnd, who lived for many years afterwards, and his personal representative should be a party. But let us consider the effect of the clause; generally, the words *‘*heirs of the body’ are words of limitation, and not words of purchase, and a bequest of chattels to A. or to A. for life, with such a limitation, vests an absolute estate in the first taker. So it was held by our courts in the early case of *Dolt vs. Cunning-ton,*1 Bail. 455, and the rule itself is not questioned. But these words may be construed words of purchase, where the intention of the testator is clearly ascertained that, by the term ‘heirs’ the *children*were to take '(individuals were to take *per capita*in their own rights, and not, as heirs, successively and by descent,) then the word heirs will be considered the same as the word children, 1 Rop. Leg. 86. So if no property in the bequest is given to A. and the money is bequeathed to his *‘*heirs,’ then, if there be nothing in the will shewing the sense in which the testator made use of the word ‘ heir,’ the next of kin of A. are entitled to claim under the description, as the only persons appoin-ed by the law to succeed to personal property. Ib. 85. In *Hodgeson vs. Bussey,*2 Atk. 89, and in *Doe vs. Ironmonger,*8 East, 533, the words *“*heirs of the body” were construed words of purchase, on the plain intent of the testator that they were to constitute a'new stock of inheritance, and not to take as heirs by descent and successively. In the case of *Dott vs. Wilson,*1 Bay, 457, the bequest was to “Sarah Baker during her-life, (without the control of her husband,) and at her death, to the *144heirs of her body, *and their heirs and assigns*forever.” It was held by the court that, although by themselves the words “ heirs of the body” would create a perpetuity, and the limitation be void, yet the generality of the expression was so qualified by the superadded words “ their heirs and assigns,” as to shew *the*intent of the testator^ and the children were declared to take as purchasers. The decision of the court was made on the qualifying terms stated, although they thought that if any doubt existed on that clause, it was removed by the language used in the proviso.

It appears to the court, that these rules of construction must control the bequest contained in the will of Peter Sinkler. the *use*of the residue of his personalty is given to his sister, Jane Clover, *“and after her*death, *1 give and bequeath the same to the heirs of her*body, *to them and their heirs and assigns forever.”*There is no *direct*bequest of *property*to his *sister*— “ the rest and residue of my personal estate I leave the *use*of” to my sister, (fee. Again, when an estate in personalty is given “ to A. and her children forever,” these words are supposed only to express the amplitude of the estate, and the first taker holds absolutely ; *Shearman vs.*Angel, 1 Bail. Eq. 351. But the bequest is not to “ Jane Glover and the heirs of her body,” but a provision is made that his sister shall have the use of the property, and then the will declares, *after her death,*I give and bequeath the same to the *heirs of her body, to them and their heirs and assigns forever.*The heirs were not to take *through*Jane, to whom he had given nothing but the usufruct, but they were to take as a class of persons who, after her death, might bring themselves within the description, and to these persons he bequeaths the absolute estate, and with apt words to carry his intention *into*effect. “ Unquestionably,” says the master of the Rolls, in *Holloway vs. Holloway,*5 Yes. 401, “it is competent for a testator, if he thinks fit, to limit any interest to such persons as shall, at a particular time named by him, sustain a particular character.”

This construction is confirmed by reference to other clauses of the same will, in which the same words are manifestly used as words of purchase, and could be intended in np other sense. The plantation called Bluford was devised to his son James. It is afterwards provided, in case of the death of his son, as above, as follows: I give and bequeath my plantation called Bluford, <fec. “ to *the heirs of the body*of my sister *Elizabeth DuBose, to them and their heirs and assigns*forever.” No previous *?estate whatever had been given to his sister, Elizabeth Dubose, and the heirs of her body could only take as answering the description, as purchasers, and not by descent. And so in regard to the plantation called Lifeland. His son dying under age and unmarried, the use of the plantation is devised to the testator’s wife during her life, and after her death, *“ to the heirs*of *the body of my sister Jane Glover,*to *them*and their *heirs*and *assigns*forever.” His sister had no interest in Lifeland, and the term “ heirs of the body,” could only have been intended as *de-scriptio personarum.*

The court is of opinion that the estate in Mrs. Glover was not absolute, but that this is a good bequest to a class of persons who, after her death, should answer the description of “heirs of the body.” It is not confined (as was suggested in argument) to her children living at the death of the testator, or those living at the death of the son, James Sinkler, but to those who might be heirs when the bequest was to take effect, to wit. after the death of Mrs. Glover. “ In all cases of legacies payable to a class of persons at a future period, the constant rule has been, that all persons coming *in esse,*and answering the description at the period of distribution, shall take; and the same rule must be applied to persons excluded.” *Matthews vs. Paul,*3 Swanst. 339.

It remains, then, to enquire which of the parties answer this description. On the part of the complainant, Mrs. Lemacks, and of her brother Dr. H. 0. Glover, it is contended that when the words “ heirs of the body” are construed words of purchase, they mean *children*; and that they being the only *children*of Mrs. Glover at the time of her death, are entitled to the whole. There are certainly many cases in the books in which the words “ heirs” has been construed to mean “ children,” but in all these cases it was clearly intended only to declare that the parties were to take as *purchasers*and not as *heirs*in the technical sense of the term. On the other hand, “ heirs” is a word sometimes construed to mean “ next of kin,” as in the quotation from I Hop. Leg. 85. But the point is not open for discussion. In *Campbell vs. Wiggins,*Rice Eq. 10, the legislature had made a grant to *“*the heirs at law” of Blake Baker Wiggins deceased, and it was held that the grand-children, as well as the children, were entitled. In this case, the description is restricted to “ heirs of the body.” This includes all the lineal descendants of Mrs. Jane Glover, who were also, at the time of her death, her “ *heirs1'1*ac*146cording to the laws of the State; and, it may be added, it includes only such lineal descendants as are also heirs. In the language of *Matthews vs. Paul,*the rule must be the same both as to persons excluded, as well as those included. They must answer the entire description at the period fixed.

In itself, this rule seems just enough, but when applied to the circumstances of this case, and considered in connexion with the proportion in which the distribution is to be made, the court is constrained to doubt whether the intention of the testator is not sacrificed (perhaps necessarily sacrificed,) in deference to an established rule. Dr.' Glover is the only child of Mrs. Glover who could possibly have been known to the testator, and might have been a particular object of his bounty. He has now a family of several children. His brothers anda sister have been since born, and have died, leaving children who fall directly within the description of “ heirs of the body” on the principle stated, while the children of Dr. Glover, though in the same degree, *not being*heirs, are excluded. But in *Campbell vs. Wiggins,*it was further held that when heirs take as purchasers, the distribution must be *per capita*and not *per stirpes,*and that children and grand-children share equally. The consequence is, that the son and daughter of Mrs. Jane Glover take, respectively, the same share with each of her eight grand-children. The court can only add, in the language of Lord Eldon in *Lady Lincoln vs. Pelham,*10 Ves. 175, that “it is better to'adhere to a settled construction, than to come to a decision having a tendency to shake that which forms a rule of construction, and which may, in practice, have been acted upon in many cases.”

Let a writ of partition issue to divide the negroes set forth in the pleadings, upon the principles of this decree. Each party to pay their own costs.

From this decree Dr. Henry C. Glover appealed, on the following grounds.

1. Because his Honor the Chancellor erred in deciding that Mrs. Jane Glover took only an estate for life in the property bequeathed to her by the will of Peter Sinkler ; and the appellant submits that she took an absolute estate therein.

*2.*That even admitting that his Honor was correct in his decision on the above point, it is submitted that the property vested, on Mrs. Jane Glover’s death, absolutely in Dr. H. C. Glover, the only child of Mrs. Jane Glover living at the time of *the*death of Peter Sinkler and James Sinkler; or at furthest, in *147such children of Mrs. Jane Glover alone as were living at her death, to the total exclusion of all her grand-children.

3. That even if his Honor was correct in deciding that some of the grand-children of Mrs. Jane Glover were entitled to take, that he erred in excluding the other grand-children of Mrs. Jane Glover, to wit. the children of this appellant and of Mrs. Jane Lamacks, from a participation in the division, inasmuch as all her grand-children were equally the heirs of her body.

4. That even if his Honor was correct in deciding that the children of Mrs. Elizabeth Jones, Wilson Glover, and Peter S. Glover, were entitled to take under the will of Peter Sinkler, as heirs of the body of Mrs. Jane Glover, it is submitted that the distribution should be *per*stirpes, and not *per*capita, as decided by his Honor.

5. Because the decree is, in other respects, contrary to law.

The case came before the Court of Appeals at Charleston in January, 1844, at which Term the following proceedings took place. ,

On 22nd January, 1844, the court pronounced the following opinion, viz:

The court concur in the decree of the Circuit Court. Appeal dismissed.

David JohNSon,

J. JOHNSTON,

BeNJ. F. Dunkin.

Harper, Ch. dissenting. It seems hardly to be questioned, that the words “to the heirs of her body, to them, and their heirs and assigns, forever,” are to be regarded as words of purchase. In addition to the cases referred to by the Chancellor, the cases of *Doe vs.*Laming, 2 Burr. 1100, and *Loddington vs. Kime,*1 Ld. Raym. 203, are authority that after a devise to “heirs of the body,” or “issue,” the superadded words “and to his or their heirs,” have the effect of converting the former into words of purchase. In *Kinch vs.*Ward, 2 Sim. and Stu. 409, after such words, the estate was limited over in case the first taker should die *without*issue, and on this it was distinguished from *Hodgeson vs. Bussey,*when the words were without such issue.

“Heirs of the body” are sometimes regarded both as words of purchase and of limitation — not only to denote the individuals who are to take in the first instance, but the quality of the estate and the entire succession of the heirs of the body. So it is in England, when there is a devise to the heirs of the body of a *148deceased person. The words here signify not only the persons who are to take, but that they are to take an estate tail — they include the indefinite succession of heirs of the body. But in the present case, it is plain that the words must be regarded as words of purchase only, and not words of limitation. The words of limitation are added, “their heirs and assigns forever,” denoting that the former words signify merely the persons who are to take in the first instance, and do not include any succession. The persons who are to take, are to take in fee, or absolutely. So it was in the cases of *Doe vs. Laming,*and *Loddington vs. Kime,*to which I have referred.

The words “heirs of the body,” then, being used merely to signify individual persons, the enquiry is, who are the persons meant by them? It was argued that they have been taken sometimes to mean children, sometimes issue, or next of kin, but have never had the signification attributed to them by the Chancellor’s decree. A difficulty might have been apprehended from _ the circumstance, that in England the heir at law is a different person from those who are to take personal estate under their statute of distribution. But I do not find such difficulty upon examining the cases. The words “heirs of the body,” then, plainly import the lineal descendants upon whom the law would have cast the descent of lands, if the ancestor had died intestate — and with us, these are identical with the persons who would take personal estate under the statute of distributions. When, in the English cases, they are made to signify something else, e. g. “children,” it is because there are other words which qualify the obvious meaning. In *Hodgeson vs. Bussey,*the devise was of a term, a chattel, to Grace Bussey, and the heirs of her body, their executors, administrators and assigns, and for want of such issue, (fee. It was said that the eldest son of Grace Bussey must have taken under this devise, if she had had issue. *Doe vs. Laming*was a devise of gavel kind land to Anne Cornish, and the heirs of her body, *as well females as males,*and to their heirs and assigns forever, in which “heirs of the body” was held to mean *children.*But this was upon the additional words, “as well females as males,” and but for these, it is plain, from Lord Mansfield’s reasoning, (vid. p. 1110,) that only the sons, the heirs at law ih gavel kind, would have taken. In *Doe vs. Ironmonger,*the words heirs of the body were said to mean children, upon the superadded words *'■'■without any respect to seniority of age, or priority of*birth,.” That was a devise of a *149term to S. for life, and from and after her death, to the heirs of her body, their heirs and assigns, 'forever. S. had issue, one son and two daughters. The son died in the lifetime of his mother, leaving a son, and it was contended that he alone was entitled, as heir of the body of S. The question principally debated, was, whether the words created a joint tenancy, or tenancy in common. It was held that it was a joint tenancy, and the son having died before the severance of the joint tenancy, his interest survived to his sisters — otherwise it is plain, though the word *children*is used, that the grandson would have been entitled in right of his father. In the present case there are no qualifying words, and the terms “heirs of the body,” must mean, as the Chancellor has taken them to do, those lineal descendants of Mrs. Jane Glover who 'would have taken her land by descent if she had died intestate.

But I have more doubt with respect to the manner in which they are held to take, to wit, *per capita.*Though I concurred in the case of *Campbell vs. Wiggins,*it was with doubt, and reflection has satisfied me that the construction in that case is calculated to defeat the intention, as it is admitted to do, to a great extent, in the case before us. I suppose it to be well settled by the English cases, that if there be a devise to a class, or classes of persons, as to A. and the children of B., to the children of A. and the children of B., and so to children, and grand children, they take per capita; *Bladder vs. Webb,*2 P. Wms. 383 ; *Phillips vs. Garth,*3 Bro. C. C. 64; *Lady Lincoln vs. Pelham,*10 Yes. 175. In the first of these cases, Lord King, who decided it, expressed great doubt; in the second, Justice Buller disapproved of Lord King’s decision, but followed it, on the principle of *stare decisis.*

In *Lady Lincoln vs. Pelham,*Lord Eldon says, “I am not sure that my decision does not defeat the intention.” But with us, it can hardly be said to be *doubtful*whether we do not defeat the intention. I would not depart from the English cases when they apply, but I think that our statute of descents and distributions, making the distributees of personal estate identical with the heirs of land, makes a new case, and admits and requires a different construction. In England, the heir at law is, in general, a single individual, and the plural “heirs of the body,” serves to denote the succession. When these words, therefore, are held to denote a class, or classes of persons, it may be said that there is nothing on which to found the notion of represen*150tation, or that the parties are to take otherwise than *per capita.*With us, certainly, it is competent for a testator to give to his own, or mother’s lineal descendants, in such shares and proportions as they would have taken land by descent, in case of intestacy. And when he describes them as “heirs of the body,” nothing can more plainly express this intention.

They are to take as heirs in every respect that they can so take, only it is by purchase instead of descent. In England, when taken to mean a class of persons, these cannot, in any manner or respect, take as heirs, or heirs of the body. Whether construed children, issue, or descendants, next of kin, etc. they must always be different persons from the heirs. It is said in cases of coparcenary, or gavel kind, that all the individuals who take, make up but one heir. But with us, the heir is made up of component parts, in different proportions. In the present case I think he consists of two individuals, each entitled to one-fifth of the estate, of six persons, each entitled to one-third of one-fifth, or one-fifteenth, and of two persons, each entitled to one-tenth. So they would have taken any land of, which their mother had died intestate. And this agrees with what the law supposes to be the rule of affection, by which children are pre-fered to grand-children, and nearer kindred to the more remote.

A few days after, Chancellor Johnson delivered the *following*opinion.

The opinion of the Court of Appeals, in the case of *Campbell vs. Wiggins,*Rice’s Eq. Rep. 10, overruled my decision on the circuit, that the estate should be divided amongst the heirs of Blake Baker Wiggins, in the proportions prescribed by the Act providing for the distribution of intestates’s estates, but neither the decision in that case, nor the argument in this, has operated to change my views of the question.

In the consultation of the court, after the argument of this cause, Chancellor Harper expressed, in strong terms, his disapprobation of the decision in *Campbell vs.*Wiggins, but in the end, I supposed that all my brothers had come to the conclusion, that it was proper to adhere to it for the present, and in that belief I wrote and signed the concurrence in the Circuit Court decree ; and in that, it seems, I was mistaken. It happened that I was not present when it was read, nor was I informed that my brother Harper had prepared a dissenting opinion. If I had, I should not only not have concurred in the decree of the Circuit Court, but should have concurred in the dissenting opinion ; and *151the effect would have been, to refer the cause to the Court of Errors, on account of a division of the court.

Now, I cannot consent that a mere mistake of mine should work a piejudice to the defendants, or put them in a worse condition than they otherwise would have been; and that must be the effect, as the only remedy will be a petition for a re-hearing, which will involve expenses to some of the parties, and on which the division of the court, on that question, might forever conclude the defendants.

During the sitting of the court, its judgments and proceedings are always under its control, and in the application of the power we have an example emanating from the Court of Appeals, then consisting of all the law Judges and the Chancellors, in which, after an opinion had been delivered on the authority of a majority of the court after consultation, a majority were convinced by, and concurred in, a dissenting opinion delivered by my brother Johnston, and that opinion became the judgment of the court. That occured in the case of *Picket vs.*Picket, reported in 2 Hill Ch. 470, and although these facts do not appear in the report, they are well known to all the Judges and Chancellors. Under these circumstances, I feel it due to myself, as well as the parties, to express my dissent to the Circuit Court decree, and my concurrence in the dissenting opinion of my brother Harper, and have gjven this explanation, that it may be put on the file of the proceedings in the cause.

On 3d February, 1844, the court made the following order.

The order of the court of the 22d January last, confirming the decree of the Circuit Court in this cause, and dismissing the appeal, having been made by mistake, *It is ordered*that the case be reinstated on the docket for further consideration.

Subsequently an order was made, that the case be refered to this court, to consider the question on which the Court of Appeals was equally divided; and now the cause came on to be heard.

*H. A. Desaussure,*for Dr. H. C. Glover.

The general rule is, that ‘heirs of the body,’ are words of limitation and not of purchase. If, therefore, the gift had been to Mrs. Glover and the heirs of her body, without the superadded words, her estate would have been absolute. But because the *corpus*of the property was not given to Mrs. Glover, but merely the use, and because of the superadded words, “to them, and their heirs and assigns,” the Chancellor decided, and his decision has been con*152firmed by the Equity Court of Appeals, that Mrs. Glover took only a life estate in the property, and after her death it vested in such of the heirs of her body as would have been entitled under the statute of distributions to any lands of which she may have died the absolute owner; and the question now for’this court is, in what proportions are the heirs of the body entitled to take? Do they take *per capita*or *per*stirpes? Are the grand-children to take equally with the children, or do they take only their parents’s shares ? Is the estate to be divided into five, or into ten, parts?

We contend that the distribution must be *per stirpes.*If the words, ‘heirs of the body,’ mean, as the court has decided, such heirs as would be entitled to lands under the *statute,*and *not*descendants or issue, because those words would -include Dr. Glover’s children, does it not follow that the heirs must take in the proportions prescribed by the statute? Will the court resort to the statute to ascertain the persons who are entitled to take, and not follow the provisions of the statute in dividing the estate?

Heirs at law *quoad*the personalty mean next of kin, and when the next of kin take, the distribution must be according to the statute; 5 Ves. 402 ; 4 lb. 649; 1 Jac. and W. 388; 1 Rop. Leg. 128; 6 Eng. Cond. Ch. R. 480; 7 lb. 270; 81b. 227. In this last case *Phillips vs. Garth*was overruled; 2 Wms. Ex’ors. 726, 731.

*R. De Treville,*contra,

contended that the distribution must be *per capita,*in conformity with the decision in *Campbell vs. Wiggins.*

Before Mrs. Glover’s death, the limitation over, *quoad the*persons, was contingent. 2 McC. Ch. 440; 1 H. Ch. 322. Being contingent, the grand-children could not take under their parents, who transmitted nothing. They take directly under the will; 10 Ves. 176. The statute therefore cannot apply, because that relates only to cases of intestacy; 2 P. Wms. 384 ; 1 lb. 343; 4 Ves. 768 ; 3 lb. 257 ; 7 Ib. 127 ; 1 Leigh Rep. 74.

The cases in which the gift was to the next of kin do not apply. No such distinction can be made here as the term ‘next’ or ‘nearest,’ implies. The gift is not to the next heirs or the nearest heirs, but simply to the' heirs of the body, and grand-children are as much heirs of the body as children. He cited 4 Cond. Eng. Ch. R. 273 ; 1 H. Ch. 152; 2 lb. 42.

He submitted that the case of *Campbell vs. Wiggins*was *153conclusive of the question. That case settled a rule of property which it was dangerous to interfere with. Estates had been divided in conformity with it, and purchases made on its faith.

*Bailey,*same side,

urged the policy of adhering to the maxim *stare*decisis, especially where the decision laid down a rule of property.

The principle that the distribution must be *per capita,*has been applied in all cases where persons take as a class, and no distinction has ever been made between cases where technical words, as heirs, are used, and when the words are not technical, as issue, or children. In all such cases the probability is that the testator meant the same thing. Where the word next is used a different rule may well prevail, because the term next imports a difference. Yet in *Phillips vs. Garth*it was held that the division must be equal. Does this case constitute an exception to the general rule, that the division must be *per capi-ta 7*The court has decided — it is the foundation of the Circuit Court decree — that ‘heirs’ was not, in this will, used in its technical sense, but simply as a *descriptiopersvnarum ]*1P. Wms. 666 ; 1 T. R. 197. It is conceded by the decree, that if the intention was to give to the heirs, as heirs, then the limitation would have failed under the rule in *Shelly’s case,*(a) which has been applied to personalty; 1 Prest. Est. 273. Yet it is contended that they must take in the same proportions as if they had inherited the estate. It is true the court must resort to the statute to ascertain what persons are heirs, but when that is ascertained, the meaning of the word ‘heirs,’ is satisfied. If the court goes beyond this, it destroys the very foundation on which the decree rests.

*Petigru,*in reply.

The true rule is, what did the testator *mean'}*That his intention was not according to the decree, no rational being could doubt. If the intention is abandoned and a technical meaning given to the words ‘heirs of the body,’ then Mrs. Glover took an absolute estate. It is because of the super-added words, which, ever since *Archer’s case,*(b) have been held sufficient, and in deference to the intention of the testator, that the technical sense of the words is not adopted. What, then, was the meaning of the testator If he meánt issue or kin, then Dr. Glover’s children are entitled. But it has been decided that they do not take, because they are not heirs in the technical *154sense of the word; and yet, in common parlance, how often are children, during the father’s life, called heirs. The issue who are not heirs in a technical sense do not take, and yet, it is said that those who are heirs in a technical sense cannot take in the proportions of heirs. There is a glaring defect in this aigument. It is inconsistent with itself. It goes to the statute, for the mean-' ing of the testator *quoad*the persons, and yet repudiates the statute *quoad*the distribution of the property.

The construction contended for would never enter into the imagination of any man not acquainted with the rules of law. He might suppose that ‘heirs,’ meant descendants, or he might suppose that it meant such persons as the statute points out; but he never could adopt such a mongrel construction as is here contended for, made up partly of the law and partly of the intention. What the testator meant, is, that the issue of Mrs. Glover should take, in the same way as if she had died intestate, the property being vested absolutely in her ; and why should not .that intention prevail *1*

The case of *Campbell vs. Wiggins,*he said, was not absolutely in point. The presumption that the party was *inops concilii,*did not there exist, and yet it would be in vain to deny that a contrary decision will shake, if not overrule, that case.

We are of opinion that the defendant’s motion to reverse the decree of the Circuit Court ought to prevail, and concur in the opinion expressed by Chancellor Harper, on the hearing in th‘e Court of Appeals.

Signed by Johnson and Harper, CC. and O’Neall, Evans and Wardlaw, JJ.

We are of opinion, on the question submitted to the Court of Errors, that the appeal ought to be dismissed.

Signed by Johnston and Dunkin, CC. and Richardson, Butler and Frost, JJ.

(a)

 1 Coke, 104.

(b)

 1 Coke, 66.

*Per Curiam.*

The Court of Errors having been equally divided on the grounds of this appeal, the appellant can take nothing by his appeal, and it is ordered and decreed that it be dismissed.