| R.I. | Mar 6, 1864
The testator evidently intended, that his only child and sole devisee should take a fee simple in his real estate; and for that purpose limits it to him, by the technical words, "to him andhis heirs forever," and with no limitation over. He supposed, however, that the power to aliene such an estate did not result from its nature thus declared, but from the addition of the word "assigns" to the word "heirs;" and, accordingly, immediately after, in case, from sickness or other casualty the income of the estate should prove insufficient for his son's support, he gives the estate "to him, his heirs and assigns forever, that he maysell so much of my said estates as my executors herein named may think necessary for his support during his natural life;" and then goes on to appoint "attorneys to superintend" his estates after his decease, and to see that his son has all the necessaries that his situation might require, and to determine whether any or all of his estates should be sold to supply them. It is almost unnecessary to say, that in these respects the testator was mistaken; that the word "assigns" in the limitation of a fee, is not requisite to give it the quality of alienability, and that when such an estate is given *39 by the technical words, this quality cannot be restricted, for the reason that such a restriction is inconsistent with the nature of the estate. We are asked to correct the testator's mistake by giving the son an estate for life only; but this we cannot do against his plain intention technically expressed. In other words, we cannot make a will for him, although we see that he was ignorant of the nature of the estate which he designed that his son should take. The main intent was to give a fee, and this must prevail over the restriction and the machinery by which it was to be adjusted to circumstances. The mistake of the testator is utterly harmless as events have turned; because, as the son is under guardianship, no sale of his real estate can take place, except by the direction of the court of probate and under its superintendence.
It will be noticed, too, that if we should construe the estate of the complainant under the will to be for life only, the remainder in fee, being wholly undisposed of, would, upon the death of his father, have descended to him as sole heir at law. In that event, his life estate under the will would have united with and merged in the remainder in fee which he had inherited, and he would in that way have become a tenant in fee simple of the property, with all the rights of such a tenant.
The whole purpose of the bill will be answered, by a decree declaring that William G. Grant took, under the will of his father, the late Cyrus Grant, an estate in fee simple in all the real estate devised to him, and without restriction as to alienation. *40