Opinion by
Mr. Justice Mitchell,
Notwithstanding the general presumption that one who makes a will does not intend to die intestate as to any part of his estate, reinforced as it is here by the words “ all such estate as it hath pleased God to intrust me with, I dispose of ” etc., it is clear *184that without the aid of the act of 1888 the will of Judith Pfeifer would have given her husband only a life estate, for the devise is only of the “ whole income while he lives,” and at common law this express life estate would not be enlarged by the subsequent gift of a power of sale: Hinkle’s Appeal, 116 Pa. 490. But the act of 1833 changes the rule of construction by its command that “ all devises of real estate shall pass the whole estate of the testator in the premises devised .... unless it appear by a devise over, or by words of limitation, or otherwise in the will, that the testator intended to devise a less estate.” Starting with this statutory presumption, the burden of proof is now upon those who claim that a less estate was intended by the testator. In the present case there is no devise over, and the limitation by the words “ while he lives ” is followed by an unlimited power of sale with no restriction on the appropriation of the proceeds. Such an estate is very near a fee simple. The difference is purely technical and is not one which would be obvious to the ordinary mind. For all practical purposes the beneficial interest is the same, and from the entire absence of any devise over after the husband’s death we must presume that it was solely his beneficial interest that the testatrix had in mind. We are not dealing with a deed granting an express life estate, with a power of sale which must be strictly construed, but with a will having a statutory prima facie intent. The actual intent of the testatrix appears to be in harmony with the statutory presumption, and we can therefore best carry it out by giving her will .the legal construction which accomplishes the practical result she desired, and holding that the estate passing to him was a fee simple.
Judgment affirmed.