2 Grant 345 | Pa. | 1856
The opinion of the court was delivered July 16, 1856, by
— Testator gave his daughter thejand in dispute, and added, “ she shall have it as her own during her life, and then it is to come to the heirs of her body for their own use.” What estate did the devisee take? An estate tail most assuredly, if we apply the rule in Shelly’s case to the construction of the will. That rule is part of the law, and we must apply it, unless some specific reason can be given for doing otherwise. This.is a devise of a freehold for the life of the first taker, with a limitation in the same will of the remainder to the heirs of her body. It comes precisely within the rule.
But it is said, the testator did not mean to give her an estate tail. Perhaps he did not. But he has used words which in law mean nothing else. If he intended to give but a life estate voluit non dixit, we must take what he said, not what he meant. The reasons for not regarding the supposed intention, when it differs from the legal construction of the instrument which creates the estate, are given at length in Auman v. Auman, 9 Harris, 343.
. It is true, that wills are construed more liberally than deeds. The intent of the testator, where it is manifest from the whole instrument, will not be defeated for want of technical words, and terms of art are sometimes allowed to have a meaning different from their strict legal sense. But no court in this State or in England, has ever treated the phrase “ heirs of her body,” as words of purchase,, when they'are used with reference to the issue of a devisee, to whom a life estate is given. They are
Judgment affirmed.
