| S.C. | Nov 27, 1872
The opinion of the Court was delivered by
The non-suit granted by the Circuit Judge must be sustained. The action is trespass to try title, and before the plaintiff can recover it devolves upon him to show a title to the premises vesting in him. He claims- to derive it from the will of Mrs. Mary IT. Swann, as representing the person who is to take as her nearest heir-at-law, in t,he event of a failure of the conditions on which a fee simple estate was to pass under'it to her son, Edward
It may be necessary, first, to determine what estate the said Edward Eaton Swann took¿ on the death of his brother, Joseph Addison Eaton. By the terms of the will, an estate for life was devised to him, with remainder to his legal heirs, which would confer upon him an estate in fee. This is on the assumption that a technical definition is to be given to the word “ heirs” for, if so, it must be held a word of limitation, and not of purchase, according to the recognized rule in Shelly’s case. — Fewell vs. Fewell, 6 Rich. Eq., 138.
"Where technical words, however, are used, if there is a clear intention on the part of the testator, to be collected from the context, not to employ them in their legal sense, they should be accepted in the sense in which they appear to have been designed. —2 Williams on Executors, 778, 779 ; 2 Jarman on Wills, 744.
It is apparent, from the language of the will, that the testatrix used the term “ legal heirs,” in the sense of children, for she directs “ each son’s heirs to hold their father’s part of said land forever,” and in the event of the death of both sons dying without such heirs, “ as above mentioned,” to use her language, she bequeaths the land to her “ nearest heirs-at-law forever.” It is in the character of her “ nearest heir ” that the plaintiff asserts his legal title. Where, however, there is a devise to the testator’s heirs, they do not take under the will, but by descent. — Seabrook vs. Seabrook et al., 10 Rich. Eq., 495. John M. Sw7ann, the plaintiff here, is not the heir-at-law, in any view, of the said Mary H. Swann, for at her death her son, Edward Eaton Swann, through whom the respondent claims, was alive, and, as her sole heir, was entitled to take.
The motion is refused’, and the appeal dismissed.