#### *Aaron C.*Smith, *ex'tr.*v. *O. B. Hilliard et al.*

Testator devised and bequeathed to his daughter *“and the heirs of her hody, if no children, to her entire disposal,”*certain real estate, *&c.*— held that the daughter took an estate in fee simple, subject to be cut down to a fee conditional in the event of her having children.

Whenever there is a doubt as to the quantity of the estate devised, or whether it is vested, the rule is to presume that the testator intended to give an absolute rather than a qualified estate, and a vested rather than a contingent interest; and even where the words importa contingency, but do not create a condition precedent, they give a vested interest to the devisee, subject, however, to be divested if the contingency should not happen.

There is no rule of law which prohibits a testator from devising different estates in the same lands to the same person on the happeningof successive events — so atestatormay devise afee simple which shall be cut down to an estate for life or years on the happening of a prescribed event; and a fee conditional is as subject to such defeasance as a fee simple.

When a testator uses technical terms throughout his will, the Court will not undertake to substitute other words for them or to disregard their legal effect, or to adopt their popular instead of their legal meaning; but when from the whole, or a part of the will, it is apparent that the words were not used in a strictly technical sense which would be at war with the general objects and the express provision in another part, the intention must then be gathered from the whole will, without giving a preference to any particular part.

Effect ought to be given, not only to eveiy clause, but even to every word of a will, if it can be, so as to carry out the intention of the testator, and to do this the several sentences of the will on the same subject must be collated together.

*Before*Dargan, Ch. *at*Charleston, *June,*1848.

CIRCUIT DECREE.

Dargan, Ch. Edward Shrewsbury, being seized of the real estate mentioned in the pleadings, on or about the 18th February, 1793, executed his last will and testament. He shortly after died, leaving the said will unrevoked and in full force and effect. Isham Williams, who was the husband of the testator’s daughter and devisee, Eliza Williams, was nominated as one of the executors of the will, and took upon him*212self the burthen and execution thereof, having qualified in (that character on 2nd March, 1793. Not long after the death of the testator, Isham Williams and Eliza his wife, by lease and release bearing date 27th and 28th Sept. 1793, teciting the title and seizen of Edward Shrewsbury and the making of his will on the 18th February of that year, and the devise of the wharf in question to his daughter Eliza Williams, and further that they, the said Isham and Eliza Williams, had been married many years and had no children, and that the said Eliza Williams, with the assent of her husband the said Isham Williams, being desirious to alien, convey and dispose entirely of all her right, title, and interest in the wharf mentioned, in consideration of *£2.000,*paid by Thomas Rivers, Jr., conveyed and released the premises to the said Thomas Rivers in fee simple. On the 3rd October of the same year, Eliza Williams regularly renounced her inheritance, which renunciation was duly certified and registered. By indentures of lease and release, dated 4th and 5th of the same month, after reciting the last mentioned indentures and renunciation, the said Thomas Rivers, in consideration of £2,000, reconveyed the premises to Isham Williams in fee ; who thereupon, on the 6th of said month, by indenture of release, after reciting that it had been agreed by the said Isham and Eliza, that the said premises should be afterwards conveyed to a mutual friend, to such uses and trusts as should be therein declared, the said Isham Williams conveyed the said premises in fee simple to Richard Furman, in trust, among other things, for the joint use of the said Ish-am and Eliza during their joint lives, and at the death of either, leaving no issue of the marriage their living, to the absolute use of the survivor, his or her heirs forever; on which last mentioned deed Rebecca Shrewsbury, on the 24th January, 1794, regularly and duly renounced her dower as the widow of the testator Edward Shrewsbury. Eliza Williams died on the 20th October, 1844, leaving no issue, and, as I apprehend the facts, without ever having had any issue; and leaving the said Isham Williams surviving her. On the day of August A. D, 1846, Isham Williams departed this life, leaving a will, which has been admitted to probate, bearing date the 4th November, 1845; in which *inter alia*he devises as follows “I order and direct my executors to sell my wharf lands in Charleston, and all my other real estate, at public or private sale, upon such terms of cash and credit as they may deem expedient,” and appointed Aaron C. Smith and Robert Brodie the executors of his said will. Aaron C. Smith became the sole qualified executor of the will, and in pursuance of the directions thereof, after due notice by advertisement, the said Aaron C. Smith, on the 10th of November A. D. 1846, exposed at public auction the said wharf, *213on certain terms and conditions. At this sale O. B. Hilliard, M. C. Mordecai, Thomas J. Ker, and Benjamin F. Smith, became the purchasers as tenants in common, at the price of $18,500 00, and did, by themselves or their agent, sign a written memorandum of the contract or purchase. The said purchasers, immediately after the contract of sale, were let into the possession of the premises, and have been in the use and enjoyment or the receipt of the rents and profits thereof ever since; no abstract of title was exhibited to the purchasers before the sale, but after the sale, (it does not appear to me how long after,) an abstract of title was delivered to them or their attorney. But it seems that the purchasers, by an agreement to that effect, took possession, on the condition that such possession should be no waiver on their part of any defects or incumbrances that might exist in regard to the title.

*211Charleston,

Jan’ry. 1849.

*213It would be as well to remark in this connection, that R. C. Williams, the brother, and, as he represents himself, the sole heir at law of Isham Williams, (who is also a party in the pleadings) denies the validity of the will of the said Ish-am Williams, and therefore of the sale of Aaron C. Smith the executor. The said R. C. Williams claims the wharf for himself, alledging that the testator was not of sound and disposing mind at the time of its execution ; denying also that the will was executed in a manner, as to form, that would pass real estate. In reference to this claim, 1 will simply say *here,*that if in the course of this investigation it shall become necessary, atl issue *devisavit vel non*will be ordered to try the validity of the said will.

The following persons, to wit, Edwd. C. Shrewsbury, John L. Shrewsbury, Anna H. Shrewsbury, John B. Adger and Avife, Elizabeth K. formerly Elizabeth K. Shrewsbury, Dr. William Moultrie and Louisa his wife, formerly Louisa Shrewsbury, Mrs. Ann M. Brown, William Rogers, Thomas Williams and Mary his wife, formerly Mary Shrewsburry, and Stephen J. Shrewsbury, also set up a claim to the estate, as having reverted to them as the heirs at law of the testator Edwd. Shrewsbury, by virtue of the provisions of his will.

' After the foregoing developement of the facts of the case, and the state of the pleadings, I proceed to discuss in order the questions that are presented. And the first question necessary to be discussed and adjudged, is that of the *reverter.*

The clause in the will under which this question arises is as follows. *“*I give and bequeath unto my beloved daughter Eliza Williams, and the heirs of her body, if no children, to her entire disposal, one wharf with two stores thereon, one of brick and one of wood, likewise four carpenters, Peter, Luck, Adam, and Dublin, likewise one half moiety of a lot of land given me by Mrs. Johnson near the north gate of *214Charleston, forever.” The word “ forever ” seems rather out of place, and in the natural collocation of the members of the clause, should be transposed. The words *“if no children to her entire disposal”*are obviously an interpolation, occurring after a considerable erasure. No suspicion, however, exists as to authenticity of the interpolated words. The word “ forever ” should in reading the sentence be placed after the words *heirs of her body,*making the sentence as follows: “ unto my beloved daughter Eliza Williams and the heirs of her body forever.” Or it should be placed after the interpolated words, making that part of the sentence read “ if no children, to her entire disposal forever.” I attach, however, very little importance to the transposition of this word, or its meaning, as its natural signification exists independently, in both branches of the sentence. In the first, *words*of procreation, which are sufficient to create an estate of inheritance, imply perpetuity. And the same implication arises in regard to the last, on the words “ to her *entire disposal.”*These words are also sufficient of themselves (considering them as creating a power and not an absolute estate) to authorize the alienation of the fee. The word “forever” (it seems to me) however transposed, gives no additional strength, except that which may be derived from the tautology. I have made these remarks in reference to that portion of the argument which turned on this point.

2 Strob. Eq.

I proceed to the great question involved in the case; what estate did the testator, by this clause, give to Eliza Williams in the wharf devised? I give and bequeath, (he says,) “unto my beloved daughter Eliza Williams *and the heirs of her body,”*the wharf in question. Had he stopt *there,*there can be no legal proposition clearer, than that the words would have created a fee conditional in Eliza Williams, and she having died without heirs of the body, the *reverter*to the heirs of the testator would now take effect. Have the interpolated words modified the technical signification of the first member of the clause, in such a manner as to give her a greater or a less estate ?

In the first place, do the subsequent words enlarge the es- . tate given to Eliza Williams in the first part of the clause ? ' As that is beyond all question a fee conditional, if it is at all enlarged it must be enlarged into a fee simple. There can be no doubt that if an estate is devised to one generally, with a general power of disposition or appointment, it will carry the entire fee. But if an estate is given to *one for life*with a general power of disposition at the death of the devisee, this does *not*create a fee simple. And it was so decided in the case of *punam*v. *Byrd,*and I incline to the opinion, that the same rule of construction would prevail, where any *particular estate*is given to the devisee with a general power of disposi*215tion or alienation ; as for example where the estate given is a fee conditional. The *rationale*of the construction would be the same. The *defined extent*of the estate given, in the first place, rebuts the presumption that makes *what*would be otherwise considered as a mere power, an enlargement of the estate. In *Tomlinson*v. Dighton, the distinction was based upon the particular limitation and description of the estate *given.*Where the estate given is express and certain, the power to alien, though general, is a distinct gift — and does not operate by way of enlargement of the estate. But the power must also, to have the effect assigned to it in the argument, be unlimitted and unconditional. In Edward Shrews-bury’s will the power of alienation is unlimited as to the manner of its execution, but was not to be exercised except upon the contingency of there being no children. It is therefore not unconditional, and the condition negatives all presumption that he designed Eliza Williams in the first place to take a fee simple. My opinion is that he *did design*her to take a fee simple, on a certain contingency. Whether such was his intention, and whether such intention (if it exists) can be carried into effect, I will hereafter consider. But I am now engaged upon the question whether the *express estate*in fee conditional, has been enlarged into a fee simple, (as has been contended,) by the subsequent words. The implication, to control the technical meaning of words creating a previous express estate, must be a necessary implication. No such implication arises here ; but on the contrary the implication is the other way, and is consistent with the intention of the testator, to create such an estate as the technical import of the words m the first part of the clause would imply.

1 P. Will. 149, 1 Salk. 239.

Per Parker C j, ib. ib’.

Did the testator mean by the subsequent words to qualify the phraze to “ Eliza Williams, and the heirs of her body,” so as to give her a less estate than a fee conditional; the estate imported by those words ? — If this construction could prevail it would be by making Eliza Williams the tenant of a *mere*life estate, and the heirs of her body purchasers.

If the subject matter of the controversy were personal property, and the words “ *and if there should be no*children,” could be made to mean children in the popular sense, living at the time of her death, it might, perhaps, on the authority of some of the adjudged cases, be held to restrict the interest of Eliza Williams to a life estate, and to have made her issue (if she had any,) take as purchasers, by way of contingent remainder. But both the *postulata*of such a construction are wanting, and therefore it cannot prevail. But what estate did the testator mean to give to Eliza Williams? We have seen that he in the first part of the clause gave her a fee conditional. Did he mean to qualify that estate by the interpolated words? And in the first place, what did he mean by the word “children” and the words “and if no children,” &c. My opinion is that the word *216“children” is in that sentence *nomen*collectivism, and was used an(j jg t0 construed synonymously with the words “issue” or “heirs of the body.” Such a construction would not be contra-Victory to the preceding clause, nor result in the abridgement of the estate given to his daughter, and the destruction of the estate in fee conditional previously created. To construe the word *“*children” in the popular sense, would be to make the testator mean that the devisee should have the power to alienate the property from her issue as well as his own, (for whom he had carefully provided by apt words,) provided there were no persons to answer the description of “ children” in the ordinary sense of the word; to the exclusion in fact of grand children or remoter issue in the line of direct descent; such I think was not the testator’s purpose, either in fact or according to those rules of interpretation by which his language is to be construed.

l Doug. 321.

6 Co. 19.

2 Bos. & Pul.

In *Davis*v. Stephens, there was a devise of the fee simple to the testator’s son William, and his child or children, forever, but if he died before 21 years of age, the testator gave the estate to his wife, forever. It was held that the word children, meant heirs of the body, and that William took an estate tail. In *Wild’s case,*the word “ children,” when relating to persons unborn, was construed as synonymous with issue, and was held to create an estate tail. The rule stated in this case is, that where lands are devised to a person and his children, and he has no' children at the time of the devise, the parent takes an estate tail.

The rule established in this case has been uniformly followed. Thus in *Seale*v. *Barter,*where the devise was to testator’s son, and his children lawfully begotten, with power for him to settle the estate on any of them, and in default of such issue, then over to a daughter, it was held to create an estate tail. The word “son,” has also been frequently construed a word of limitation; as where under a devise to one, and if he died not having a son, the word “ son” was taken to be used as *nomen collectivism,*and the devise was held to be an estate tail. I will simply refer to the cases as collected in *Powell on Devises,*565, and 2 *Jarmyn on Wills,*307.

These are cases in which the words children and son, have been construed as words of limitation, and as creating a fee tail, where there were no preceding words, directly creating that estate. With how much more propriety may that construction be given to them when it is done for the purpose of preventing repugnancy to and a destruction of a fee conditional already created. The words of the will are not if there be “no children of Eliza Williams,” but the phraze is “if no children, to her entire disposal.” If no children of whom? It is uncertain. And if no children — at what time *1*It is equally uncertain. It is obviously no strained interpretation which would construe the word “children,” as synonymous with *217“ issue.” Whatever, then, may have been the further meaning of the testator, he intended to suffer the fee conditional which he had created, to remain intact, until it expired by its own natural efflux, the failure of heirs of the body. On the failure of that estate by its natural termination he intended to limit another estate, to vest in possession only at that time. Did he *endeavour*to effect this object by giving a direct estate to Eliza Williams in fee, after the termination of the fee conditional, or did he mean merely to give her a *power*of creating such an estate? I say nothing now of the validity of such estates or interests; for I am speaking more particularly as to what the testator meant, or desired to do.

My opinion is that he *meant*to give to Eliza Williams, after the termination of the fee conditional, a fee simple directly, without the intervention of a power.

The words “to her entire disposal forever,” of themselves go very far towards implying an absolute estate.

If a testator uses words of technical nature only, then they must receive their technical construction. But we may look through the entire will for its true sense and meaning; and when we gather from the obvious import of the context, in what signification he uses certain words, we must give them the sense which the testator has adopted.

In looking through this will we find that the testator has uniformly used the words which have in this clause been construed in the argument as conferring a power, for the purpose of creating a fee. In the first place he says, “ as to my real and personal estate I give and *dispose*thereof.” He then gives a house and lot to his wife for life, and at her death to return to his *“*daughter Eliza Williams at *her sole disposal*forever.” He likewise leaves certain negroes “ to the *sole disposal”*of his wife. He next proceeds to say, “ I likewise bequeath to my wife and *to her sole disposal,*one half moiety of a lot of land,” <fcc. Now in all these instances of the use of this phraze, it is most manifest that they were used for the purpose of creating, and do actually create, a fee simple. And it is equally manifest, that the same phraze in the clause we are construing, was used by the testator with the same import. And although this establishes the meaning of the phraze *“to her sole disposal,”*the structure and provisions of this whole clause are so entirely different from the preceding devises, where direct fees are at once created, that none will deny but that the testator *here*intended to create a different estate. Had he intended in the controverted clause to give her a fee simple directly, he would have employed the same language which he did in the preceding clauses, where he so effectually accomplished that purpose.

From the foregoing considerations my mind is irresistably led to the conclusion that the testator created, and intended to *218create, as to the wharf, a fee conditional in Eliza Williams, and that without intending to abridge or restrict that estate, he intended to limit upon it, at its natural efflux, an estate in fee to the said Eliza Williams. This limitation, as a matter of course, would be void ; for it could not take effect either as a contingent remainder or executory devise. Upon the question whether a contingent remainder or executory devise can be limited upon a fee conditional, I have, in the case of *Buist and others*v. *Sommers and*others, heard by me at this term, expressed my opinion and given my reasons at large. I need not reiterate them upon this occasion, but refer to that case as affording the grounds upon which I hold that such interests cannot be supported.

In the event that such should be the opinion of *the*Coart, it was contended that the doctrine of *merger*applied, and that Eliza Williams being the owner of an estate of inheritance and also being sole heir at law of Edward Shrewsbury, the interest that remained in him descended to her, and that there was a *merger*in her, therefore, by which she was seized of the entire fee.

The reversionary right of the donor dependant upon the natural termination of a fee conditional, is not an estate, but what is called *a possibility of reverter.*It is not devisable or assignable; nor descendible, *even,*in a proper sense, for it does not descend to or vest in the heirs of the donor intermediately living, before the termination of the precedent estate in fee conditional. But it falls upon and vests in those who can make themselves the heirs of the donor when the *rever-ter*takes place. The doctrine of *merger*does not apply. *Adams*v. *Chaplin.*

It was emphatically asked by one of the counsel in the argument, why might not the testator, by the same will in which he creates the fee conditional, dispose also of his *possibility of reverter 7*This is precisely what this testator attempted to do, by giving to Eliza Williams afee simple after the natural efflux of the precedent fee conditional to her. This was nothing more nor less than devising the possibility of reverter. The answer is obvious: by devising the possibility of reverter he would be limiting an estate after a fee conditional, by way either of contingent remainder or executory demise; which, as we have seen, the law will not permit.

What I have said and the conclusions I have drawn, would be sufficient to enable me to give my judgment, without alluding to another question that was much discussed on the trial. Though unnecessary, from the view which I have taken, I have no objection to express an opinion upon that question also. It was earnestly argued that the words “ if no children, to her entire disposal” gave no estate, but wás a mere power to alien in fee, upon conditions. And considering it as *219a power, it was contended on the one side that it was not duly executed ; in which case the estate would revert to same adverse claimants, the heirs of the testator; while on the other side it was contended that it was fully executed by the deed of lease and release to Tho. C. Rivers before mentioned. If the words in question convey a mere power, it is very clear that all acts done in pursuance of it, are develope-ments of an efficacy or energy inherent in the will, and upon its authority must entirely rest for their validity. And another principle is equally clear; that a testator cannot do, through the intervention of a power, and the agency of the person exercising it, that which he could not do by virtue of his own testatorial rights. If he cannot devise or alien his right or reverter dependant upon the termination of a fee conditional of his own creation, neither can he by his will clothe another with the power to do it. If, therefore, the testator gave to Eliza Williams a fee conditional, the reverter could not be affected by her deed.

Cited in Sug. on Po-w. 282.

But suppose that in conjunction with her estate in fee conditional (or whatever estate she took under the will,) she also had *apower*of alienating the fee simple. On this supposition I am of the opinion that the power was not executed in a formal and sufficient manner. -The general rule *certainly*is, that if there be an interest and a power existing together in the same individual, and over the same subject matter, and a deed be executed or an act be done without special reference to the power, it will be applied to the interest, and not be construed an execution of the power. If there be a legal estate, on which the deed can operate, the power will be considered as not having been invoked. Indeed the rule was so far extended in *Shaw*v. *Cadogan,*that in an elaborate discussion, it was held that a general disposition by will would not carry property over which the testator had only a power, unless it could be inferred that the testator did actually mean to execute the power. Where the will could not operate otherwise, it has been generally held to be an execution of the power; but where there is an estate or interest, on which the deed or will may take effect independently of the exercise of the power, it will not be considered an exercise of the power, unless it be referred to.

Now to make an application of the principle to this case. Eliza Williams *had*a fee conditional estate in the wharf; or at least some estate derived under the will. There is allusion made to the will, but it seems to be by way of reciting her title, rather than as being referred to for the derivation of a power. There is not the slightest allusion to the exercise of a power, but the implication is the other way; for the preamble recites that the said Eliza Williams is desirous to alien all *her*right, title and interest in the wharf mentioned, *220. a form of expression certainly not applicable to the exercise • of a mere power, that gives no right, title or interest. And *J*in the deed of trust which Isham Williams finally makes of the premises to Richard Furman, in pursuance of a post nuptial arrangement recited in the deed, there is still no mention of the exercise of any power derived under the will. The deed of Isham Williams and Eliza Williams to Thomas C. Rivers, is the joint deed of them both. If the- supposed power was invoked in that deed, the joinder of the husband was entirely unnecessary, as the execution of the power without his joining in the deed would have been equally efficacious.

If they had had issue, this deed would have barred *the*issue from taking *per forman doni,*and in fact would have carried the fee. Here, therefore, is enough for it to operate upon, without inferring that there was an intention to execute the supposed power. There is no sufficient evidence before me to show that the deed was *informal*merely; or that it did not actually embrace all the objects intended by the parties to it. Against the informal execution of powers, equity will relieve except as in favour of the husband. Where the power is informally executed by a *femme covert*in fa-vour of the husband, equity will not interpose. If the rule admitted of being made to yield to circumstances, there are no special ones in this case favourable to the husband to induce the Court to reform the deed, as an informal execution of a power.

My opinion is, as before intimated, that Eliza Williams took a fee conditional under the will, not subjet to any valid ulterior limitations, and that on her death without issue to take *per formam doni,*the estate reverted to the right heirs of the testator Edward Shrewsbury, who have now, as tenants in common, a right to the partition thereof.

It is ordered and decreed that the parties to this suit who are the purchasers of the said wharf from the executor of Isham Williams be discharged from the obligation of their contract for the same. It is further ordered and decreed that they, the said purchasers, do account to the parties to this suit who are the heirs at law of the testator Edward Shrewsbury, for the rents and profits from the time that they have been in possession of the said wharf under the said contract of purchase, and that it be referred to master Laurens to report upon the rents and profits.

It is also ordered and decreed that the parties to this suit, who are the heirs at law of the said testator, have leave *to*apply at the foot of this decree for a writ of partition, to divide the said wharf among them according to their respective rights, or for a sale thereof, for the purpose of effecting a partition.

It is also ordered that each party pay his or her own costs.

*221*An appeal was taken from this decree, after the hearing of which the Court pronounced the following opinion.

*Per*

Caldwell, Ch.

In deciding the question, what estate in the wharf did Eliza Williams take under the devise ? the intention of the testator must be collected from his whole will, and not from a particular part. When bequests devises are made in technical terms, and the context of the ., will does not qualify their meaning, the legal effect of the* expressions must control the construction, notwithstanding./ the testator may not have understod them.

Effect ought to be given, not only to every clause, but even to every word of a will, if it can be, so as to carry out' the intention of the testator, and to do this, the several sentences of the will on the same subject, must be collated together.

In the first clause of the will, the testator, by using the words, “ *at her sole disposal*forever,” clearly indicates what meaning he attached to them, in the devise he made of the house in which he lived, and it cannot be doubted he wished his daughter to have the fee simple, after his wife had enjoyed her life estate in the premises ; in the concluding sentence of this clause he uses the following words, “the negroes I leave to the sole disposal of my wife; and, likewise, I bequeath to my wife, and to her sole disposal, one-half moiety of a lot of land, given me by Mr. Johnson, near the North gate of Charleston then follows the devise and bequest to his daughter, which closes with these words, “likewise, one-half moiety of a lot of land, given me by Mr. Johnson, near the North gate of Charleston, forever.” From these expressions, it is manifest the testator intended to give his wife and daughter each a moiety of this lot in fee simple *•*and he uses the same phraseology in the preceding part of the devise of the wharf to his daughter. It would seem to follow, that a similar construction ought to be given to it, especially as a common intention appears to have pervaded the whole clause. From the general tenor of the will, the testator evidently intended to dispose of his whole estate, and there is nothing, except the expression, “ *heirs of her body,”*that indicates that he entertained the remotest idea that any thing was reserved, or was to revert. These words, standing alone, create a fee conditional at common law, as the statute *“ de donis”*is not of force in this State; and the question is, shall they be construed as controlling, not only the general intention apparent upon the face of the will, but the particular phrase that immediately succeeds them, “ if no children, to her entire disposal ?” The integrity *222of every instrument ought *to be*preserved, unless its seve-raj parts are s0 inconsistent as to render a reconciliation impossible. The testator appears to have had two views in framing this clause — first, to give to his daughter a fee sim-pie in the wharf, if she had no children, but if she had children, then to give it to her and the heirs of her body; the former, and more enlarged estate, must naturally and necessarily precede the latter, otherwise the .less] would control the greater estate, and the fee conditional would exclude the devisee from the fee simple to which she was entitled in the event of her not having children. As the devisee had been married several years without having had a child, the testator may be supposed to have considered it improbable that she would ever have children, and, therefore, his first thought would be to provide for her if that event should not occur, by giving her the estate absolutely, but if she should have children, then the natural course of his affection and bounty would be, to provide for them. These appear to have been the two principal objects of his will.

4 Des. E. R. 459.

The testator did not intend that the estate he devised to his dáughter should revert for the want of persons to take *pet' formam doni,*as he has anticipated and provided for *that event,*by directing that if there were no children, (a word which he probably used as synon3unous with heirs of her body) she should have the entire disposal of the estate.

From his using these terms in such close conjunction, it may be fairly inferred that his intention was, first to give her an estate in fee simple in the wharf, defeasable upon the event of her having children, (heirs of her body) but as that was improbable, he could .not have intended, *if it never happened,*that she should take a less estate, a fee conditional; had his intention been otherwise, he would never have superadded these important words, “ if no children, to her entire disposal.”

In popular parlance, the word heir is generally used for child, and the Court held, in *Moon and others*v. *Herndon and others,*that where a testator devised “ that if either of my aforesaid children should die *without an heir,*then his share shall go to the rest of my children”' — that the word heir was synonymous with child, and the limitation over was not too remote. Where a testator uses technical terms throughout his will, the Court would not undertake to substitute other words for them, or to disregard their legal effect, or to adopt their popular instead of their legal meaning, but when, from the whole or a part of the will, it is apparent that the words were not used in a strict technical sense, which would be at war with his general objects and the express provisions in another part, we must then gather the *223intention from the whole will, without giving a preference to any particular part. .

Fearne on Rem. 1 Jarman on Wills, 734-5.

ofS.C. (1824) 237. Ints. 164.

There is nó rule of law that prohibits a testator from devising different estates in the same lands to the- same person on the happening of successive events, such as an^ estate for years on the birth of the devisee’s first child, for life on the birth of a second child, and of inheritance on the birth of a third child. So a testator may devise a fee simple which shall be cut down to an estaj,e for life or years, on the happening of a prescribed event ;* and a fee conditional is as subject to such defeasence as a fee simple. The birth of the children contemplated by the testator, must occur within the life of his daughter, and I think it plain, from, the provisions of his will, that no other children but those of his daughter were contemplated. His object must have been, that the estate should vest in his daughter immediately on his death ; she had *then*no children, and if the words “heirs of her body” had not been in the will, she would undoubtedly have taken at that time a fee simple, and can they qualify that estate which was devised upon an express contingency which has not happened? If any meaning can be attached to the words, “ *if no*children, *then at her entire*disposal,” they must signify that the testator either intended she should have a fee simple absolute if she had no children at his death, or that she should ultimately have such estate if she had no children during her lifetime-; in either event her estate has turned out indefeasabie. If the words “ heirs of her body,” were intended to create a fee conditional, then the inquiry is, what was the contingency upon which her estate in fee simple was to be cut down, and has it happened? If the event was her having children, as would seem to be inferable from the other expressions of the will, a fee conditional has never arisen, as the persons have never been born that were intended to be benefitted by that provision. To give a different construction, would reverse the natural order of events, and before we adopt such an inversion, we ask was there any reason in the testaior’s first giving his daughter a fee conditional, and then enabling her to enlarge it, (in the event of her having no children) by the execution of a power? Her condition at his death, and the improbability of her having children, repel such presumption; it is not probable that he intended to devise her a less estate, to be increased on an event that could not be ascertained with certainty, until the opportunity of enjoying its enlargement to a fee simple had passed. Whenever there is a doubt to the quantity of the estate devised, or whether it is vested, the rule is, to presume that the testator intended to give an absolute rather than a qualified estate, and a vested rather than a contingent interest; and even where the words import *224a contingency, but do not create a condition precedent, they give a vested interest to the devisee, subject, however, to be divested if the contingency should not happen.

Snow v. Foul-den, 15 Cond Ch. 187. Newman v. Newman, 16 lb. 51. 2 Wilson Rep, 6 and 7.

The case of *Goodlitlle*v. *Otway*has been relied on as bearing a resemblance to this case; there, a devise was made to *one for life,*and after her death, *to her lawful issue,*and if she should have no issue, *to have power to dispose of it at her will and pleasure*; as the contingency of issue never happened, it was held .that she took a fee. It is difficult to find any case that is a parallel to the one un'der consideration, and its decision must, therefore, depend upon general principles applied to the construction of the will, much more than upon its analogy to adjudged cases. If the testator, by using the terms heirs of her body, intended she should only take a fee conditional, then he has defeated what appears to have been the main object of the devise, to give her a fee simple if she had no children; but if the latter and larger estate was vested in her, subject to the contingency of her having children, on which event the fee conditional could take effect, then the whole will is in harmony, and every part of it will take effect as the testator intended.

As to the doctrine of powers, which has been involved in this discussion, we do not think it applicable to the case; neither do we think that the correctness *vf*the previous decisions of our Courts on the subject of a fee conditional, has been drawn into controversy in determining this case.

It is, therefore, ordered and decreed, that the order and decree of the Circuit Chancellor directing a writ of partidor to issue, be set aside; and it is adjudged and declared, that Isham Williams had a fee simple estate in the wharf described in the pleadings ; and it is further ordered and decreed, that an issue be made up of *devisavit vel non,*as to the premises aforesaid, and sent to the court of law; in which issue his executors shall be the actors, and his heirs and next of kin shall be the defendants, and that the result of said issue be returned to this Court.

Johnston and Dunkin, CC. concurred.

*

 The Reporter received neither the grounds of appeal, nor a copy of the will which was the subject of litigation in this case.

Dargan, Ch.

I dissent, and adhere to my Circuit decree, to which I refer for my unchanged opinions.

*Decree reversed.*