delivered the opinion of the court:
No controversy exists over the facts in this case. All parties seek the construction of the will. The only point of dispute is whether the language of the will brings it within the rule in Shelley’s case. The question turns on the construction that should be given to clause 7. The word “section,” in the seventh clause of this will, is used with the same meaning as we use the word “clause”- in this opinion. If the word “heirs” is used in this clause in its strict technical meaning, then it must be held to be a word of limitation and not of purchase, and the chancellor erred in dismissing the bill.
“One of the established rules for the construction of a will is that the court will look at the circumstances under which the devisor makes his will, — as, the state of his property, of his family, and the like.” (Strain v. Sweeny,
Obviously, from the facts set forth in the bill, it is a fair construction of this will that the testator desired the bulk of his property, after the death of his wife, to go to the children of his children and the children of his step-son. Apparently, at the time he drew the will, and at his death, his step-son and his oldest son, Edgar, had children and his two other sons and daughter had none. If the last three afterwards had children, he wished them to inherit the remainder after the life estates of their respective parents, the same as the children of his oldest son and his step-son. If his three youngest children had no issue, did he intend the remainders after the respective life estates of these three children to descend to the “children of his children” or to the “heirs of his heirs?” “Children” is used twice, “issue” once and “heirs” three times in said seventh clause. “Children,” where first used in said clause, undoubtedly has the meaning usually given to it in its ordinary, common usage. “Issue,” as used in this clause, we think means the same as “children,” for it is plain that the testator intended to provide in the will for the children of his three youngest children along the same lines as he did the children of his oldest son and his step-son. We think, also, that it is clear that the word “children,” when used the second time in said clause, was used in its ordinary meaning.
Appellants contend, as we understand it, that the last sentence in said clause, namely, “it being the will of the testator that the title to the properties under sections No. 4, 5 and 6 herein shall rest and abide in the hands of the legal heirs of the lawful heirs of the testator,” is really a devise as to the remainder over, and must control the meaning to be given to the part of. the said clause immediately before, namely, “then and in that case the properties herein willed to them, or either of them, or any part thereof, shall revert equally to the legal heirs of the other children.” We can not agree with this contention. We think the words last quoted constituted the devise as to the remainder over, and the last part of said clause quoted above merely attempts, by way of recital, to explain the meaning of the devise theretofore set out. The words “legal” and “lawful” do not modify or change the legal effect of the word “heirs.” (Deemer v. Kessinger, supra.) “Heirs,” as used the last time in the said clause, evidently has the same meaning as “children” in the devise itself, and as we have stated, “children” was used there in its ordinary, common meaning. Did the testator, in using the word “other” before “children” in this devise, refer to the three children named in said clause, or did he include his oldest son, Edgar, as one of the “other children?” Considering the wording of this devise alone, there might be some doubt on this question, and the writer of this will might have had that obscurity in mind when he drafted the last explanatory sentence. It is evident from the reading of the entire clause that the testator intended to include all of his remaining children but not his step-son. Manifestly, taking the entire will together, he wanted the remainders in question to go to the children of his children. His children and grandchildren were the natural objects of his bounty. If he had intended the word “heirs” to be used in the technical sense, it hardly seems possible that he would have used “children” and “issue” in this clause in the manner he did, We are inclined to hold that the testator used the words “children,” “issue” and “heirs” interchangeably in this will, as meaning the same thing, to-wit, “children,” in the ordinary sense of the word, and that if either of the three youngest children of the testator died without issue he wished the remainder in the property in which such child had a life estate to descend to the children of his children.
There is some argument in the briefs that an executory devise limited to take effect after death without issue should be held void because the contingency is too remote, the argument being that the devise would not take effect until after an indefinite failure of issue. A full discussion of this subject will be found in Kent’s Commentaries, (vol. 4,— 12th ed. — *281, *282, inclusive,) and Kales on Future Interests, (chap. 8.) We deem it unnecessary to discuss this subject, as this court has frequently decided that such a limitation would be valid. (Kellett v. Shepard,
The words in dispute in the seventh clause of the will being construed to mean “children,” the rule in Shelley’s case does riot apply. (Connor v. Gardner,
The decree of the circuit court will be affirmed.
Decree affirmed.