50 Pa. 311 | Pa. | 1865
The opinion of the court was delivered, by
The general rule of construction requires that where the word “ heir” is used in a will, it is to be understood in its legal and technical sense, unless there be something to show that it is used in a more enlarged and popular sense: Porter’s Appeal, 9 Wright 201.
It will be seen, by reference to Cruise on Real Estate, vol. 6, ch. 8, p. 159-60, that if a person devise his lands to his heir at law in fee, it' is a nullity, and the heir will take by descent, as the better title; for the descent strengthens the title by taking away the entry of such as may possibly have a right to the lands; whereas if the heir take by devise, he is then only in by purchase. To the same effect is Preston on Abstracts, vol. 2, p. 422; 4 Kent 504. Nor is the rule at all varied by the circumstance of a devise for life of the land to the wife and after her decease to the heir in fee: Cruise, Id. . That was the case here ; and after her death the testator made no disposition of it, but left it to the law. The descent was not broken, and the heirs took after the death of the widow, as heirs. The decree of the Orphans’ Court was right, and is affirmed at the costs of the appellants.