#### McDonald *v.*Dunbar.

A will contained a devise to a son for life with a provision that, if he left “heirs begot in lawful marriage bed,” he might appoint to one or more of his sons ; if he should fail to appoint, then the fee should go to his sons equally ; on failure of sons, to his daughters equally ; on failure of both sons and daughters, to another son of the testator and his heirs in fee. In such case, the rule in Shelley’s case does not apply, the words “ heirs, sons and daughters” are words of purchase and not of limitation, and the first taker has merely a life-estate.

A reference-clause in a will may be resorted to, where it is evident that such is the testator’s intent, not only to determine what interest or estate is to be taken by the devisee, but also to ascertain who shall take.

Where, in an action of ejectment, it appears that the plaintiff has; for over half a century, given an acquiescence in an interpretation, adverse to himself, of a will of doubtful meaning, by delay in bringing an action, the court will be inclined to adopt this interpretation.

Nov. 4, 1887.

Error, No. 226, Oct. T., 1887, to C. P. No. 1, Allegheny Co., to review a judgment for defendant in an action of ejectment by John James C. McDonald, K. Noble McDonald and Martha Melvina McDonald, against Scott Dunbar and others, at Dec. T., 1885, No. 611. Trunkey, Green and Clark, JJ., absent.

The writ was issued Nov. 19, 1885, claiming an undivided half of two tracts of land known respectively as Nutfieldand Smith-field.

By agreement of the parties, the case was tried without a jury, under the Act of April 22, 1874, by Stowe, P. J.

Both plaintiffs and defendants claimed under John McDonald, Sr., who died seized in fee with the land in dispute. The material portions of his will dated April 12, 1814, are as follows :

“ And first I will & alow that all my just debts and funral charges be paid and satisfied out of personal estate undivided=Item I will & leave to my wife Martha the one halfe of our Plantation whereon we live called Mountplesent during her life by way of Dowrey=or perhaps she might chuse to mary and go to that place where Arthur Darragh no lives & take it in lue of the half of our home plantation called Mountplesent during her life=if she chuses to go to that place where McDarragh lives now=My sons James and Edward must fix hir a comfortable house to live in — or perhaps she may chuse to go and live with one of hir daughters=if she chuses to go and live with one of hir daughters my sons James & Edward must pay hir yearly & every year forty dollars during hir life as rent for hir half of the home plantation calld Mountplesent=: as to the houses thereon my Widow Martha may take hir choise either the main body of the house or the two shade rooms she may make her choise — Item I will & leave unto my sons James & Edward all the plantations ajoyninge together whereon I live at present calld Plighlands Mountplesent Goosberry Thicket Primroshill & a pice of land I bought from Col. George Strewart &a small pice of land I bought from John Stewart during there lives to be eaqually divided between them according to quantity & quality. I alow son *484James the uper part & son Edward the lower part next to Fredk Johnstone or if the be both agreed the may cast lotts=if James or Edward dies without hairs begott in lawfull marage bed deceaseds land is to fall to the living brother & his heirs — but still reserving my Widows, dowrey as before one halfe of the home plantation during her life=my son James may make a Will & leave his land to aney of his sons that he thinks most worthy & there hairs forever with previledge that one hair may purchis of another hair=if son James males no Will I do hereby will & leave said lands to be eaqually divided between his sons for the use of them & there hairs' forever with priviledge that one hair may purchis of another=if no sons to his daughters there hairs & assigns forever but — if James should die when his children is small the whole profitts of those land must go to seport said chieldren until the youngest comes of age — Item son Edward I will & leave him his land on & in the same maner & way & under the same incumbrance that I have left my son James his land &c=My son Alexander McDonald I will & leave unto him them lands I own on the north fork of Robesyns run in Allegheny County Pennsylvania called Nutfield & Smith-field in the same maner & way I have left my son James his land & under the same incumbrance &c — Item I leave & will to my son John McDonald that brick house he lives in=in the same maner & way that I have left my son James his portion of land=I aliso will & leave to my son John that plantation that lys on Racoon Creek whereon George Goosliorn now lives to him & his heirs & assigns forever=Item I will & leave to Andrew McDonald my son three forth part of that tract whereon he lives called Cornfield on the Ohio river in the same method & way & under the same incumbrance that I have left my son James his lands &c=Item I will & leave to William McDonald chieldren (Aaron excepted I leave nothing to him) whom is said to be my Grandchildren all that tract of land whereon William McDonald now lives together with twenty acres of land of that tract called Cornfield to be run squar of from the river to the hill of an eaqual brenth=for there seport until the come of age only there father is to have victuals and cloths his life time if he will keep out of jeal and stay at home & help his children to work the farm & at William McDonalds death his son or sons is to have the one half of the said lands & William McDonalds daughters the other half of said lands to them their heirs & assigns forever N B these lands is not to be sould during there father William McDonalds life & untill his youngest child be of age=that I bought from William McDonald that lys up on the hills joyning said lands & lands of David Scotts land I will & leave to said chieldren & if my Executors thinks it is best the may sell said lands lying & being on the hills & but stock with the money such as cows horses & sheep &c for the said chieldren or divid the money amonght them when the come of age=I wish Revd Andrew McDonald to enter Guardean for said chieldren=if any of my sons dies & leaves *485Widows the are not to gett any part of of those lands I have hereby willed to my sons except there Widow be forty five years of age and then not more than the eight part of the land or profits of the lands or houses=I have made no provison for my Grandawghters my sons may make fortuns for there daughters=but as I have hereby given my sons previledge to make Wills the may leave or give part thereof to there daughters by there Will or Will but to be intealed &c that land I bought from Timothy Shane and William Blonk I will & allow to remane as Wood land for my hairs for fence reals & building wood for my heirs but not to be sould by any of my heirs that may sell their lands on Longstown bottom &c My eldest daughter now Margaret Glenn I do hereby will & leave unto hir and hir husband Robert Glenn that plantation whereon William Smith now lives joyning lands of Henry Noble & John Murdock during both there lives & at there death to my daughters hairs & assigns forever I mean my daughters chieleren as heirs. Item I will & leave to my second daughter now called Martha Allison and my third daughter Elizabeth McDonald that tract of land I own lying & being in Mill creek settlement containing 1011 acres more or less joyning lands of Hugh McCredys Willm Laughlins & the hairs of Joseph McCreadys in the same maner & way I have willed my daughter Margaret hir portion of land — Itam I will unto daughter Mary that tract of land I own on the waters or Aarmons run in Brook County State of Virginia joyning the State line & land of Simon Elliots Widow Bells & others on and in the same method & way that I have left my daughter Margaret hir portion of land=but as Elizabeth & Mary is not yett married if they have or may have husbands the are to have the same chance or previledge as my daughters Margret or Marthas husbands of said lands during there lives=if any of my daughters dies without hairs begotten in lawfull marage bed there land is to be sould & divided between the hairs of the other Sisters &c

“ any other lands or lotts of ground I may own I allow my Executors to sell and make an eaqual division amonght my other children &c

“ Itom my personal estate I do not know well how to divide it as some of them whom is called my hairs never wrought fos any thing I possess Andrew John & Alexander being constantly at school there share ought to be small— ”

After disposing of his personal estate, testator makes this further recital: “ as in this will I have ordered all lotts & land that I have not willed to my hairs to be sould by my Executors.”

The court below found the facts • as follows, in an opinion by Stowe, P. J.:

*“*There is no controversy as to the facts in this case. The plaintiffs claim the undivided half of the land described in the writ, and show that a certain John McDonald (under whom both parties claim) made a will, dated April 12, 1814, duly probated, and under *486which Alexander McDonald (under whom defendants claim) took a life-estate, with remainder over to James McDonald in fee, and that the said James died, having issue,*the plaintiffs, who are his only-heirs at law. The premises now in controversy were described in said will as ‘ Nutfield and Smithfield.’

“ The defendants all claim under the will of said John McDonald under a devise to his son Alexander of the said lands, showing a regular paper title, accompanied by possession in the grantees from 1820 to the present time, and, by way of conveyance from Alexander McDonald, deeds to bar the estate-tail supposed to be devised to Alexander under the provisions of said will; and we also find the additional facts set out in the paper attached hereto, marked Exhibit A.

“ The question then arises upon points presented by defendants which cover the whole case and which we have herein before answered. These answers render it necessary to now adjudge that the plaintiffs have no right to recover in this action, and to order that judgment be entered in favor of the several defendants and against plaintiffs for costs of suit in this case, unless exceptions hereto are filed in the prothonotary’s office of this court within thirty days of the service of notice thereof.”

The additional facts, which counsel for plaintiffs and defendants agreed should be made part of the findings of fact by the court, were as follows, marked exhibit A :

“John McDonald left to survive him ten children, namely: Andrew, William, John, James, Alexander, Edward, Margaret, intermarried with Robert Glenn; Elizabeth, intermarried with William Mitchell; Martha, intermarried with Alexander Allison; and Mary, intermarried with William Nesbit. These sons and daughters are all dead, and all of them except Alexander left issue which still survive.

“James McDonald died on April 31, 1863. Alexander McDonald died on Nov. 25, 1864, intestate, and without having had issue. Edward McDonald survived all his brothers and died on May 30, 1867, leaving issue, which still survive. He died in possession of a portion of the land in controversy, which, by his last will, dated April 16, 1867, he devised to his daughter and grandchildren, defendants in this suit.”

The defendant presented, inter alia, the following points, which were affirmed by the court:

“ x. The devise by John McDonald, Sr., to his son, Alexander McDonald, conveyed to the .latter an estate-tail, which was duly barred by the deeds of Alexander to John McDonald and to Benjamin Mevey.”

“ 2. If the estate of Alexander McDonald, under the will of John McDonald, was only a life-estate, the remainder in the lands devised to him vested by the terms of the will in Edward McDonald, *487and consequently no title ever vested in the plaintiffs under the said will.”

“ 5. Under all the evidence and the law as applicable to the facts of this case, the plaintiffs cannot recover.” .

The plaintiffs filed various exceptions to the findings of fact and conclusions of law. The court overruled the exceptions, and entered judgment for the defendants. The plaintiffs then took this writ.

*The assignments of error*specified the action of the court, 1-3, in affirming defendant’s points, quoting them; 4, in overruling plaintiff’s exceptions; and, 5, in entering judgment for the defendants.

*George W.*Guthrie, for plaintiff in error.

None of the provisions of the will is sufficient to enlarge the life-estate expressly given to James, to an estate-tail. Certainly, the testamentary power of appointment amongst the children would not have that effect. It has been ruled over and over again that even a general power of appointment will not enlarge an express life-estate to a fee; therefore, it cannot be claimed that a limited power such as this would have that effect. On this point, it is necessary only to refer to 4 Kent’s Com., 319 and 53 ; Fisher *v.*Herbell, 7 W. & S. 63; Musselman’s Est., 39 Pa. 469; Cowles *v.*Cowles, 53 Pa. 17S ; Donahue *v.*Helme, 5 W. N. C. 539; Stephenson *v.*Richardson, 88 Pa. 40.

Neither can the remainder given to James’s sons and daughters, nor the limitation over to Edward, in case of his death without issue, have any such effect: Sheet’s Est., 52 Pa. 257; Robins *v.*Quin-liven, 79 Pa. 333 ; Carroll *v.*Burns, 108 Pa. 386; Fitler’s Ap., 10 W. N. C. 429; Affolder *v.*May, 19 W. N. C. 44.

Where a testator, after devising real estate to one person, without any express devise to the issue of such person, makes a devise over to another on an indefinite failure of issue male or female, or issue in general, of the prior taker; in such case, the prior taker has an estate-tail by implication: 2 Fearne, Remainders, § 564 and 581; 2 Jarman, Wills, page 438, pi. 3, and Hawkins, Wills, p. 192. This construction is adopted in order to effectuate the indirectly declared intent that the estate should not go over till an indefinite failure of issue male or female, or issue in general, of the prior taker: Fearne, § 5<54-

The reference-clause is to be used simply to ascertain and fix Alexander’s estate, and to make use of it to give an estate to Edward, who is not even mentioned in the devise itself, would be against the grammatical construction of the clause, against the intent of the testator as shown by the whole context of the will, and against the rules to be gathered from the decisions heretofore made on similar referential clauses.

Words occurring more than once in a will must be presumed to be used always in the same sense, unless a contrary intention ap*488pears by the context, or unless the words be applied to a different subject: 3 Jarman, Wills, 707.

The cardinal rule for the construction of wills is that which requires us to ascertain and give effect to the intention of the testator: Ferry’s Ap., 13 W. N. C. 348; Webb *v.*Hitchins, 105 Pa. 95 ; Richard’s Ap., Leg. Int., Sept. 22, 1887, p. 349.

The rule to be gathered from all the cases is that a reference clause, such as this, is to be used to determine not who shall take, but what estate the devisee named shall take: 2 Jarman, Wills, p. 348, and note, and Hindle *v.*Taylor, 5 D. G., M. & G. 576; Baker *v.*Richards, 27 Beav. 320; Baskett *v.*Lodge, 23 Beav. 138; Leigh *v.*Leigh, 22 L. T. Rep. 837.

Alexander taking only a life-estate, the remainder was included amongst the “ other lands or lots of ground ” which the testator directed his executors to sell, or the testator died instestáte with respect to it.

*Jacob H. Miller*and *D. F.*Patterson, with them *Archibald Mc*Bride, *Robb '& Fitzsimmons*and *John W. Donnan,*for defendants in error.

The other lands ordered to be sold were those “ not willed to his heirs.” Besides, this construction would prolong the trust until after Alexander’s death, or contemplate the sale of the possibility of a remainder in his life-time, in which case a share of the proceeds would go to him.

Even if it were possible to conclude that Alexander took only a life-estate, and that the remainder was included amongst the lands ordered to be sold by the executors, the plaintiffs’ claim to an undivided fourth cannot be sustained. The proceeds of such lands as the executors were authorized to sell, were to be distributed by “ an equal division amo.ngst his other children.” Plaintiffs contend that “ other children ” mean children other than daughters, by reason of the immediately preceding clause of the will, which provides for the event of any of the testator’s daughters dying without heirs. There is no such connection between these clauses as to justify the interpretation claimed. This is made clear by the provision relating to the Wilson tract. The daughters were not to be excluded from its proceeds, and there is nothing to indicate a distribution different from the proceeds of other lands sold by the executors.

The testator did not die intestate as to the remainder in question. Not only is the presumption of law against it; but the whole scope and scheme of this will exhibits the testator’s intention to dispose of everything he owned.

If Alexander took only a life-estate, it is clear that the remainder did not go over to James, in whole or in part. It is equally clear that, if James had died, as Alexander did, intestate, and without having had issue, the lands devised to James would have gone over to Edward, who survived him as “ the living brother,” and his heirs. Alexander took as James did, which means as Edward did also; *489otherwise Alexander did not even take a life-estate, for the life-estate of James is given to him by a provision which applies to Edward also.

It is clear that the testator first gave to James (as well as to Edward) an'estate for life. He next provided that if James or Edward should die without heirs begot in lawful marriage bed, the deceased’s lands shall fall to the living brother and his heirs. There is no doubt that this created an estate-tail. in James and Edward : Braden *v.*Cannon, 24 Pa. 168; Covert *v.*Robinson, 46 Pa. 274; Moody *v.*Snell, 81 Pa. 359; Hope *v.*Rusha, 88 Pa. 127; Phila. Trust Co’s Ap., 93 Pa. 209; Stone and Wall *v.*McMullen, 10 W. N. C. 541; Goodright *v.*Pullyn, 2 Ld. Raym. 1437; 1 Fearne, Remainders, p. 161.

The power of appointment given to James does not reduce the estate-tail previously devised : Ogden’s Ap., 70 Pa. 541; Kay *v.*Scates, 37 Pa. 31; 1 Fearne, Remainders, 424; Linn *v.*Alexander, 59 Pa. 43 ; Greenawalt ta Greenawalt, 71 Pa. 488; 2 Preston, Estates, 460; 1 Preston, Abstracts, 401.

The testator having used appropriate words to create an estate-tail, they must have their legal effect, unless from subsequent inconsistent words, it is very clear that the testator meant otherwise : Jessup *v.*Wright, 2 Bligh, 51; Doe *v.*Gallini, 2 Bligh, 51; Criswell’s Ap., 41 Pa. 290; Cole 7/. Goldsmith, 7 Taunt. 331; Jordan *v.*Adams, 99 E. C. L. R. 499; Lawrence *v.*Lawrence, 105 Pa. 335.

Other provisions of the will indicate an intention to give the first takers more than a life-estate. The sons’ widows’ interests are limited; they would have no interest in a life-estate. Testator provides that if the sons devise part of their lands to their daughters they shall be “ entailed.” The statement that Margaret Glenn’s children are meant as heirs, implies that the term should have its legal meaning as applied to the sons.

*Daniel Agnew,*for defendant in error,

not heard. — We have here an ancient transaction and an interpretation of the will on which has been founded a long line of transfers and descents, undoubted and undisputed until suit brought, a period longer than is necessary to bar a writ of right, a time which has buried two generations of men, both parties and witnesses. This interpretation was constructively known to the plaintiffs and their predecessors in the title; for the conveyance to bar the entail was a public act of record, done in the court of common pleas; was judicial in its nature, and on record in the recorder’s office. Besides, they were claimants of land under the same will, whose provisions were known to them, and, to crown the whole, there was sixty-five years’ possession, continued, peaceable and adverse to the title of the plaintiffs. They therefore had notice. An interpretation of a will, acquiesced in so long a time, will not be set aside: Follmer’s Appeal, 37 Pa. 121; Carter *v.*Fishing Company, 77 Pa. 3x5.

*490Feb. 6, 1888.

The case does not rest on the statute of limitations, but lapse of time and interpretation of the will. Hence, that Alexander’s death falls within the peiod of the statute of limitations is unimportant.

Other reasons give force to our position, even if the true interpretation of the will was that only an estate for life vested in Alexander. At common law, the effect of a conveyance by a life-tenant of an estate greater, in fee or fee-tail, was a forfeiture of the life-estate and a vesting of the estate immediately in the remainderman: 2 Black. Com., 274-5-6; Coke, Litt. 251; Littleton, 451; Wedner’s Coke, Vol. 2, No. 6, Am. Edit. 167; 1 Cruise, Dig.', Am. ed., 112. The reason was, it is a violation of his fealty, and of the trust reposed in the life-tenant by the grantor of-his estate. In Pennsylvania, the effect of the recording Act of 1715 is that the recorded deed conveys only the estate which the grantor has; and hence the actual forfeiture is saved: McGee *v.*Pfouts, 3 Dali. 486; Sprague *v.*Woods, 4 W. & S. 194-5. But though this is the effect of § 4 of the Act of May, 1715, it does not alter the nature of the life-tenant’s wrongful act. The remainderman — by which I include all predecessors — lies by, suffers the deed to remain as source of title and takes no step until time has laid in the grave all living men, whether parties or witnesses. It is clear, therefore, that time has set the ancient interpretation at rest, and men may now safely rest upon it.

The following principles put an end to the controversy: Contemporánea expositios et optima et fortissima in lege : 2 Inst. 11, 6 Branches Abridgment, 386. Consensus facit legem; consensus tollit errorem : Coke, Litt. 126. Consuetudo est optimus interpres legum: 2 Inst. 18.

The doctrine of estoppel is not necessary to our case, for the plaintiffs are barredfrom recovery on the grounds stated. Yet silence will postpone where silence is a fraud. It then becomes operative— operative quietude, as defined in one case. See the following cases: Chapman *v.*Chapman, 59 Pa. 219; Millingar *v.*Sorg, 55 Pa. 216; Same *v.*Same, 61 Pa. 476; Carr *v.*Wallace, 7 Watts, 394; Woods *v.*Wilson, 37 Pa. 379, 383.

Williams, J.,

The question on which this case depends is what estate did Alexander McDonald take under the will of his father, John McDonald, Sr.? The will appears to have been drawn by the testator, and, although ina'rtificially worded, shows a well-settled plan of distribution in every part. In order to a proper determination of the question before us, it is necessary, therefore, to examine the will as a whole, with a view to discover the general scheme on which it proceeds.

The testator left to survive him a widow, six sons, and four daughters, for whom the will makes provision. To his widow, he gave a life-estate in one-half of his home plantation, with various bequests of money and other personal chattels. Subject to the life-estate in his wife, he devised the homestead plantation and several *491adjoining tracts of land to his sons, James and Edward, for life, and, in case either of them died without “ heirs begot in lawful marriage bed, deceased’s land is to fall to the living brother and his heirs.” He then took up the devise to James, and stated its terms more fully. He declared that James was to have the power to appoint by his will the land so devised to him for life “ to any of his sons that he thinks most worthy and their heirs forever.” If James should fail to appoint, then the testator directs that the land be equally divided among his (James’s) “ sons for the use of them and their heirs forever.” If James should die without sons, but leaving daughters, then the testator’s direction is that the land “ be equally divided among his daughters, their heirs and assigns forever.” Having thus made provision for the disposition of the fee after the termination of James’s life-estate, he proceeds to take up the devise to Edward, and to express his purpose in regard to it, by adopting the limitations just expressed in the devise to James, by the following reference-clause: “ Item. Son Edward. I will and leave him his land on and in the same manner and way and under the same incumbrance that I have left my son James his land.” Next follows the devise to Alexander of lands called Nutfield and Smithfield, “in the same manner and way I have left my son James his land, and under the same incumbrance.” The devise to Andrew follows that to Alexander, and refers for its terms also to the devise to James. That to John is in the same form, except as to one house, which is given in fee. William, the remaining son, he passes over, devising the land intended for his support to his children in fee, with direction that it shall not be disposed of during the lifetime of their father.

Having thus disposed of the six sons, he turns to his daughters, and, beginning with Margaret, the eldest, he devised land to her for life, with remainder over to her children in fee. He then made devises to Martha, Elizabeth and Mary, successively, to hold “ in the same manner and way I have willed my daughter Margaret her portion of land.”

It will thus be seen that the testator, having written out at length the devise to James, made it the model upon which, by a reference-clause, the devise to each of his other sons was constructed; and in like manner having fully expressed his will as to the disposition of Margaret’s portion, he made use of it by a reference-clause to supply the terms of the devise to each of her sisters.

As to both sons and daughters, his purpose was to limit them to the enjoyment of the income and occupation of the lands devised, and to preserve for and secure to his grandchildren the fee. In the case of the sons, the remainder, on failure to appoint, was to their sons; on failure of sons, to their daughters; and, on failure of both sons and daughters, then over. In the case of the daughters, the remainder was to their children generally. If one of the daughters should die leaving no children, her share was to be divided among not her surviving sisters, but the children of such sisters.

*492So far we encounter very little difficulty in ascertaining the intentions of the testator; but, in the event of the death of one of the sons, to. whom the devise is made by a reference-clause in that to James, with neither sons nor daughters surviving, what direction does the fee in his land take ? This brings us to the question in this case, and requires an examination of the devise to James. That devise was to James for life, with the provision that, if he left *“*heirs begot in lawful marriage bed,” he might appoint to one or more of his sons. If he failed to appoint, then the fee should go to his sons equally; on failure of sons, to his daughters equally; on failure of both sons and daughters, to Edward and his heirs in fee. Was the estate of James, under these terms, an estate for life or an estate tail? It is contended that the estate of the children of James is an estate by implication, and that James becomes for this reason a tenant in tail. This argument is built upon that clause which provides that if James shall die without “ heirs begot in lawful marriage bed," his share shall go to Edward and his heirs. There is here no express devise to his “ heirs begot in lawful marriage bed,” but the terms of the limitation to Edward imply one. It is therefore argued that his children take an estate by implication, and that James becomes a tenant in tail. There would be much force in this position if this- was the only clause in the will on which the title of the children of James could rest; but, in a subsequent clause of the same devise, the testator gives the remainder to the children of James by express words, and fixes the order in which they shall take. Their estate is not left to implication, but is expressly given in words which clearly show the purpose of the testator.

The argument based on the use of the words “ heirs begot in lawful marriage bed,” is equally inconclusive. Standing alone, these words would be equivalent to the word “ issue,” and would give some support to the theory that James became a tenant in tail of the lands; but, in the sentencés immediately following, the testator again expresses his intentions fully. He gives to James a power of appointment among his sons, and, on his failure to appoint, devises the land in fee to his sons, share and share alike; on failure of sons, then to his daughters in same manner; on failure of both, then over. Here we have a clearly expressed intention that the children of James should not take as heirs in tail take at comrnon law, and also that they should not take-from James, or as heirs of James, but as the devisees of the testator. These two purposes, sufficiently expressed, will control even such words as “heirs of the body,” and convert them into words of purchase. Powell *v.*The Board of Miss., 49 Pa. 46; Guthrie’s Appeal, 37 Pa. 9.

But in the case under consideration, we are not left to grope after the intention of the testator by the light of inference or presumption, for he has declared expressly what his intention is in relation to the destination of the fee in the lands given to James for life. It is to vest it not in the *“ issue*” or in the “ heirs of the *493body ” of James, but in his sons only, and in equal shares if he shall leave sons surviving him. The daughters are excluded unless there be a failure of sons, in which case they are to take in equal shares. If there be a failure of both sons and daughters, then to Edward.

The words “sons” and “daughters” are descriptive of the persons who are to take, and are clearly words of purchase, and not of limitation. This is made, if possible, more apparent by the words of distributive modification'which are used in the same connection; so that we are very clear that James did not take an estate-tail in the lands devised to him, but an estate for life only. Had he left sons to survive him, they would have taken under the will as purchasers, and not from their father as heirs..

Coming, now, to the devise to Alexander, which was moulded after that to James, we find the reference-clause to be in these words: “ In the same manner and way I have left my son James his land, and under the same incumbrance.” For the manner and way in which Alexander should take and for the limitation over, or, in the language of the testator, the “ incumbrance ” under which he should take, we must look to the devise to James. James took a life-estate, and the estate of Alexander is therefore a life-estate. James had a power of appointment among his sons, and this is carried over to Alexander by the reference-clause. In default of appointment, the sons were to take under the will; in default of sons, the daughters; in default of both sons and daughters, then over. The fee after Alexander’s life-estate took the same direction; in default of appointment, to his sons; in default of sons, to his daughters; in default of both, then over.

It is objected that a reference-clause can be resorted to only to determine what estate the devisee shall take, but not to determine who shall take. Whether this be so or not depends upon the character of the clause, and the connection in which it stands. The rules in regard to the effect of a clause of reference are rules of interpretation and are to be resorted to for aid in ascertaining an intent, not otherwise evident, but cannot be allowed to prevail over an evident intent. It was held in 2 Beav. 276, and other cases collected in the note on page 348 of the 2d vol. of. Jarman on Wills, that when the principal gift is to one for life with remainder over, another gift to another person to take “ in the same manner ” will generally import the same limitations.

So is Surtees *v.*Hopkinson, L. R. 4 Eq. 98, gifts in settlement to several stocks, the first fully expressed, with ulterior trust for the other stocks and the other gifts being “ on like and corresponding trusts were read mutatis mutandis.”

These cases rest on reasons that are made quite clear by the will before us. How could the evident intention of the .testator be carried out if we should refuse to make use of the reference-clause to determine who should take ? There is no other method of designation to be found in the will. In the devise to Margaret, he limits *494the fee to her “ children,” and, in the devise to each of his other daughters, he refers to the devise to Margaret for all the terms and limitations on which she is to take and her children after her. If the clause of reference is not to be used to determine who shall take, as well as what interest or estate is to be taken, then, as to all the daughters, except Margaret, he has made no provision for their children, or the fee in their portions of his land. The same thing is true of all the sons, except James and Edward., If the reference-clause cannot point out the remainderman, then the remainder is undisposed of by the will. The remainder over to Edward on the death of James, without children, stands in a clause not immediately connected with that wherein the power of appointment is conferred and the devise to sons, and, on failure of sons, to daughters is made.. For this reason we are asked to hold that if the reference-clause be held to import into the devise to Alexander the power of appointment and the devise to his sons, and, in default of sons, to his daughters, it does not import into it the remainder over to Edward and his children. But the reference-clause embraces all the conditions and limitations put upon the land given to James for life, whether they stand in immediate connection or not. He was to take in “the same way and manner and under the same incumbrance” that James took his portion. What that “ way and manner ” may be, and what the “incumbrance” or limitation over may be, must be gathered from all the clauses of the will that contain them, whether they stand in consecutive paragraphs or not.

Our conclusion, then, is that Alexander McDonald took an estate for life in the lands called Nutfield and' Smithfield, with a power of appointment among his sons, and, on failure of appointment, then to his sons, and so on, in exact conformity to the provisions regulating the disposition of the share of James. As he had neither son nor daughter in whom the remainder could vest at the time of his death, that remainder, following the limitation in the devise to James, went over to Edward and his children in fee simple. The plaintiffs are the children of James, and they claim both as heirs-at-law of the testator and of their father.

Under the view we take of this case, thay have no interest in the land in controversy in either capacity. If, however, the question was involved in serious doubt, we should feel inclined to adopt the view so clearly presented by Ex-C. J. Agnew, in his argument in the paper-book of defendant in error, as to the effects which should be given to delay and acquiescence in an interpretation put on this will a half century or moi'e ago.

Judgment affirmed.