#### Henderson *v.*Walthour.

The rule in Shelley’s case applies to a case where a testator devised a part of his realty “to my said son James and to his heirs during his natural life, and to his heirs forever after his decease. And I also give him the free use of a coal-bank on my farm, to dig and take therefrom all the coal necessary for himself and family while on the premises now willed to them, forever, or as long as coal can be got at said bank.”

Oct. 3, 1888.

Error, No. 78, Oct. T., 1888, to C. P. Westmoreland Co., to review a judgment on a verdict for defendants in an action of ejectment by George S. Henderson et al., heirs of Jambs Henderson, against John Waltliour et al., grantees of James Henderson, at Aug. T, 1882, No. 388. Green, J., absent.

The following facts appeared at the trial, before Hunter, P. J.:

The land in dispute originally belonged to Hugh Henderson, who died in 1848, leaving a will, by which he devised the land as follows.:

“ 2d. To my son James I give and bequeath one hundred and twenty dollars to be paid to him in one year' after my decease, if that amount can be so soon collected, and I also give and bequeath *225to my said son James and to his heirs during his natural life, and to his heirs forever after his decease, about twenty-five acres of land, off the so.uth-east corner of my farm, bounded, etc., with the buildings and improvements thereon, yielding and paying to my wife Jane the one-sixth of the yearly product, of about sixteen acres thereof that has been cleared for some years, in the bushel, to be delivered to her at her house. And my said son James, having materially assisted in opening a coal-bank on my farm, I allow and give him the privilege of digging and taking away from said bank - three thousand bushels of coal as a compensation for his labor in opening it, and I also give him the free use of said bank to dig and take therefrom all the coal necessary for himself and family while on the premises now willed to them forever, or as long as coal can be got at said bank, with a road to and from said bank, so as to do the least injury to the fields between said bank and the public road.”

James lived upon the land until 1854, when he moved west and died in 1879. Evidence was offered to show that the eldest of the plaintiffs was born before the death of Hugh Henderson and the making of his will, and that the others were bom subsequently.

Other facts appear in the charge, which, after stating the facts as above, continued :

“But on Feb. 23, 1854, James Henderson and wife conveyed the land in dispute, some thirty acres, to Joseph Rumbaugh, as appears by deed of that date, properly acknowledged and recorded. The defendants also offered numerous other conveyances to show that they hold under Joseph Rumbaugh; so that, if he had a good title, these defendants have, in answer to the claim set up by the plaintiffs. Here the question arises as to the sufficiency of Rumbaugh’s title and the defendants’ title under him. On one hand, the plaintiffs claim that their father had. but a life-estate in the land; that he could have no more; and that was all he took under the will of his father, Hugh Henderson; and that now, since their father is dead, they contend the fee vests in them, and that they are now the owners of the land. While, upon the other hand, the defendants contend that James took the land in fee-simple under his father’s will, or at least in fee-tail, and that the entailment has been barred in the.way pointed out by the Act of Assembly, as shown by the records. We shall not detain you by referring to this Act of Assembly, but we may say that if James took an estate-tail under his father’s will, the proceeding was sufficient to bar it. Nor shall we, indeed, trouble you as to what an estate-tail is, for we think the legal question presented here is one of a different character. We think it is one which should be met in a broader light, and should be confined to the simple question: Did James Henderson take a life-estate only in the land under this devise, or did he take the land in fee-simple ?

“ The words of the devise are as follows: ‘ I also give and devise to my said son James, and to his heirs during his natural life, *226and to him and to his heirs forever after his decease, about twenty-five acres of land, etc.’ Such is the devise. What is the force, meaning and effect of it in the eyes of the law ? We hav.e what is known as the Rule in Shelley’s Case, which, it is said, is simply where an estate is limited to a person, and the same instrument contains a limitation, either mediate or immediate, to his heirs or the heirs of his body, the word heirs is a word of limitation; that is to say, the ancestor takes the whole of the estate. When the term used in limitation is ‘ to the heirs of his body,’ he takes a fee-tail;. but if it be ‘ heirs •’ generally, he takes a fee-simple.

“ This rule is law in Pennsylvania, and the only question is, do the words or terms of the devise to James Henderson come within the rule, taking the whole of the will of Hugh Henderson together? We have all listened to a very learned discussion touching this question; numerous authorities and decisions of the supreme court have been cited by the counsel in their address to the court in your hearing. We have examined these, and have come to a conclusion for ourselves touching the proper force which should be given to this devise. This is a matter purely for the court.

*“*Before stating the conclusion we have reached, we may say that plaintiffs’ counsel contend that the word ‘ heirs,’ as used in this devise, is synonymous with ‘ children,’ and should be so interpreted. We cannot agree with him in this regard; we see nothing upon the face of the whole will that would justify us in cutting out of this devise the word ‘ heirs,’ as used, and placing in its stead the word ‘ children.’

“ Words may be supplied or differently interpreted in a will where, from the face of the whole will, it appears that the intent of the testator was to give a different effect to the words themselves; but, we repeat, we shall not take from this devise the word ‘ heirs ’ and place in its stead the word ‘ children,’ as contended for by ■ the learned counsel for the plaintiffs.

“ Now, then, admitting that the evidence will justify you in ■finding that the plaintiffs are the only children and heirs of James Henderson, and we have no doubt about the sufficiency of the proof, the duty and responsibility lies with us to instruct you as to the law of this case.

[“ Briefly, then, we say to you, that the devise to James Henderson comes within the rule which we have given you, and gave him and those holding under him the fee-simple of the land in dispute,] [1] and the defendants, having shown sufficient conveyances from him through Joseph Rumbaugh, they have established their title to the land, [and your verdict should be for the defendants, and 3>ou are now instructed to return a verdict in their favor.” ] [2]

The plaintiffs submitted the following points:

*“*i. James Henderson took no more than a life-estate in the land in dispute under the will of his father, Hugh Henderson, and the remainder in fee, by the will of Hugh Henderson, was vested in *227the children of James Henderson, the plaintiffs in this action. *Ans.*Refused.”

Oct. 29, 1888.

*“2.*If the jury find from the evidence that James Henderson died in 1879, and that the present plaintiffs are his only children, they would be entitled to recover in this action, and the verdict should be in their favor for the land in clispute. *Ans,*Refused.”

*The assignments of error*specified, 1, 2, the portions of the charge included within brackets, quoting them; and, 3, 4, the answers to plaintiffs’ points, quoting the points and answers.

*Laird,*of *Laird & Keenan,*for plaintiffs in error.

The words of the devise to James and “ his heirs during his natural life ” and the recital of the premises “ willed to them,” and the word “ family ” in the clause relating to the coal right, indicate that the testator used the word “ heirs ” in the sense of “ children.”

James and his children took the landas tenants-in-common during the life-time of James, and at his death his share devolved on the children in remainder. Robins *v.*Quinliven, 79 Pa. 333; Clark *v.*Scott, 67 Pa. 446; Wild’s Case, cited in 2 Jarm., wills, 312, 3d Am. ed., by Perkins; Oates *v.*Jackson, 2 Strange, 1172; Right?/. Creber, B. & C. 866; Finlay *v.*Riddle, 3 Binn. 139; Powell *v.*Board of Domestic Missions, 49 Pa. 46.

Kepple’s Ap., 53 Pa. *211;*Steacy?/. Rice, 27 Pa. 73 ; Vowinckel *v.*Patterson, 18 W. N. C. 512, only apply where the word heirs has its technical meaning.

*Wentling & Miller,*not heard, for defendants in error.

The word heirs is always construed as a word of limitation, unless the contrary intent appear on the face of the will. Campbell *v.*Jamison, 8 Pa. 498. And so plainly that no one can misunderstand it. Au-man *v.*Auman, 21 Pa. 347.

We must take what was said, not what was meant. Bender *v.*Fleurie, 2 Grant, 347.

The exact language used here was held to create a fee in 3 Jarm., Wills, p. 105, citing Brooks *v.*Everett, 33 Tex., 742; Cockins Ap., hi Pa. 26.

In Kepple’s Ap., 33 Pa. 211, a devise “ to my son, in trust, and for the use of his heirs at law, to have and to hold the same during his natural life, but he shall in no wise sell or dispose of the same during his natural life,” passed a fee.

As to substitution of heirs for children, see Mason *v.*Ammon, 20 W. N. C. 180.

Per Curiam,

The charge of the learned judge states, in clear and explicit terms, the law governing the case in hand, and it follows that he properiy instructed the jury to return a verdict for the defendants.

The judgment is affirmed.