Lessee of Elizabeth Hauer against Peter Sheetz

High Court of Errors. Lessee of Elizabeth Hauer against Peter Sheetz. 1807. Philadelphia, Saturday, July 25. ¶ j 'N an ejectment for lands in Dauphin, the jury found the - following special verdict: The testator devised his plantation to his son F. and his heirs and assigns for ever, subject to the payment of a sum of money, winch he ordered F. to pay by instalments to ins other son P. Kealso gave F. certain horses, cows, &c.; and then ordered that m case Ins son F. should die under the lawful age oí 21 or withoutissue, his sliare in the testator’s whole estate should go to P., his heirs and assigns; and if P died under the lawful age of 21 or without issue, his share should go to F, his heirs and assigns; and in cither case, the survivor of his said two sons should then pay 5001. to the testator’s daughter or her heirs. By a codicil he ordered F. not to sell any part of the land before lie was 30, when he might do with it as he pleased. Held that F. took a fee, with an executory devise to P., to take effect upon Fds dying under age and without issue; and F. having attained 21, and then died Without issue, the estate descended to F.’s heir at law. “ That Peter Sheetz, the father of the lessor of the plaintiff and of the defendant, being seised in his demesne as of fee, a Qf £[le lands and tenements in the declaration of ejectment . J stated and mentioned, on the 8th day of April 1795 made a j£;s jast wj]j ancl testament, prout the copy thereof hereunto \r 1J annexed, and on the 10th day of April in the same year, a make a codicil in writing to his last will and testament, ° . “prout the copy thereof hereto annexed, and died leaving u tjie saj¿ Francis? (in the will and codicil mentioned) “ the 7 v , ' “ said Peter the defendant, and the said Elizabeth the lessor a Qf £jle plaintiff, his only children; that the said Francis en-1 J “ tered into and took the possession of the lands and teneu ments in the said declaration mentioned, and being so . 7 ° “ thereof possessed, died -without lawful issue, but after he “ was above the age of twenty-one years, intestate; that the “ said Francis Sheetz was born on the first day of April 1775,' “ and was killed on the 28th of December 1797- That the “ said Elizabeth, the lessor of the plaintiff, is the sister of “ the whole blood of the said Francis, and that the said Peter the defendant is the brother of the half blood of the “ said Francis, being the son of the said Peter the testator, “ by another venter. That the said Elizabeth, demised the “ lauds and tenements in the said declaration mentioned, “ to the said Timothy for the term therein expressed; that “ the said Timothy did enter, and was thereof possessed; “ and that the said Peter did enter and eject him therefrom; “ and if on the whole matter, it shall seem to the court that “ the said Peter is guilty of the trespass and ejectment, they “ then find him guilty, &c.; but if on the whole matter, it “ shall seem to the court that the said Peter is not guilty, “ then they find him not guilty, &c.” By the will referred to, the testator, after directing the payment of his debts, made the following devise. “ I give “ and bequeath unto my son Francis Sheetz, all that my “ plantation, and two tracts or pieces of land,” (the premises in the ejectment) “ the one of them, and whereon I now “ live, is bounded by &c. and containing about three hundred “ and sixty acres, be the same more or less; and the other of said tracts, is situated or bounded by &c. and contain- “ ing about ninety five acres be the same more or less; both “ of the said tracts of land being situate in the township of “ Heidelberg and county of Dauphin, to have and to hold the “ said two tracts or pieces of land, unto my said son Francis “ Sheetz, and to his heirs and assigns for ever, subject to the i‘ payment of two thousand three hundred pounds lawful “ money of Pennsylvania, in gold and silver coin, which said “ sum it is my will, and I do give the same unto my son “ Peter Sheetz, and to his heirs and assigns for ever, and to “ be paid in manner following, to wit: my said son Francis “ Sheetz shall pay at the expiration of one year after my de- “ cease, the sum of one hundredpounds „ and then the sum of “ one hundred pounds yearly, for three years successively, “ and then the next year the stem offive hundred pounds, and 44 the next year the sum of one hundred and fifty pounds, and 44 then so on the sum of one hundred and fifty pounds yearly “ and every year, until the whole sum of twenty three hun- “ dr ed pounds shall be fully paid.” He then gave to his son Francis, 44 with the said planta- “ tion, and to his heirs and assigns,” several horses and cows, a quantity of grain, and some farming utensils; after which came the following devise to his wife. 44 I give and “ bequeath unto my wife Catharine during the term of her 44 natural life, my house and lot she now lives in, in the town 44 of Heidelberg, and also all the money and effects which is 44 mentioned and contained in a certain article of agreement 44 or instrument of writing, made between her and me, bear-44 ing date the 19th day of February 1789, and recorded, &c. 44 and which I have therein promised and agreed to pay and deliver her during all the term of her natural life, she pay- “ ing the taxes and ground rent thereon to become due; and 44 which said money in said agreement mentioned, being 44 twenty four pounds yearly, shall be paid her on the first 44 day of May yearly, during the term of her natural life, by 44 my said son Francis Sheetz; and which my said plantation 44 shall always be subject to.” He also gave his wife during her life, the interest of six hundred pounds of his money, which he directed his executors to invest; and he then made this bequest to his daughter, the lessor of the plaintiff. 441 44 give and bequeath to Elizabeth, now the wife of John 44 Hauer, the sum of one thousand pounds lawful money of 44 Pennsylvania, in gold and silver coin, nevertheless to be 44 deducted out of the said one thousand pounds, what I have 44 already given and advanced my said daughter Elizabeth 44 and son-in-law John Hauer, which said money shall be “ paid my said daughter Elizabeth in manner following, to “ wit, three hundred pounds thereof, (besides what they now “ have) within six months after my decease, and then the 44 sum of one hundred pounds yearly and every year, until 44 the whole sum shall be paid.” The money was to be paid out of the proceeds of an estate which he ordered his executors to sell;44 but in case my said daughter Elizabeth should de44 part this life before the said one thousand pounds be fully 44 paid her, then k is my will that my said executors, shall “ retain the rest in their hands, and put the same to interest “ for the children of my said daughter Elizabeth, until they “ be of lawful age of twenty-one years, and it shall then be “ divided between them, share and share alike.” He also gave to Francis, “ and to his heirs and assigns,” the half part of all his clothing, linen, yarn, beds, and bedsteads-: the other half, together with all the rest and residue of his moveable goods and effects, and money whatsoever and wheresoever, not before given and bequeathed, it was his will that his executors should make a public vendue of the same, and the money arising therefrom he gave and bequeathed to Peter, and to his heirs and assigns for ever. “ After the decease of my said wife Catharine, I give and “ bequeath the sa.id sum of six hundred pounds, which my “ executors shall have so put to interest, unto my said two “ sons Francis and Peter Sheetz, to be equally divided “ between them, share and share alike. Also after the de- “ cease of my said wife Catharine, I give and bequeath unto t$ my said two sons, my said house and lot of ground, and “ wherein my said wifé Catharine now lives, situate in the “ said town of Heidelberg, to hold to them my said two sons, “ their heirs and assigns for ever. But in case my said son “ Francis Sheetz shall die under the lawful age of twenty-one “ years, or zvithout lawful issue, then and in that case I give “ tny said son Francis’s share in my said whole estate, unto “ my said son Peter Sheetz, and to his heirs and assigns for “ ever; and in case my said son Peter Sheetz shall die under “ the lawful age of twenty-one years, or without lawful issue “ as aforesaid, then and in that case, I give and'bequeath. “ my said son Peter’s share in my' said whole estate, unto w my said son Francis Sheetz, and to his heirs and assigns “ for ever. But in either case, the survivor of my said two “ sons Francis and Peter, shall then pay unto my saiddaugh- “ ter Elizabeth or her heirs, the sum offive hundred pounds, u' lawful gold and silver money, but to be taken out of the last * payments of my frst mentioned plantation’’ The codicil to the will contained an additional bequest ©f a servant man and boy to Francis, he to give one of his best horses to Peter when he should arrive at twenty-one; and then came the following clause. ■“ And I do hereby “ order, and particularly request, and do not allow my said “ son Francis Sheetz, to sell any part of the land, which 1 u hade in my said will given him, until he arrives at the age “ of thirty years, and then he may do with the same as he “ pleases.” The judgment of the Supreme Court having been rendered for the'defendant, the plaintiff .brought this writ of error, upon which the single question was, whether Francis Sheetz took a fee-simple in the land devised to him, which became absolute upon his arriving at twenty-one. Tilghman and Lewis argued for the plaintiff in error. Francis Sheetz took a fee by the devise to him, his heirs and assigns. The subsequent words, that in case he should die under twenty-one or without issue, &c. gave an executory devise to Peter,- to take effect upon Francis dying under age and without lawful issue; and as he attained twenty-one, the fee became absolute, unless limited in one respect by the codicil, as to selling before thirty. It cannot be contended that there is any thing in the will, to reduce the fee of Francis to an estate tail with a vested remainder to Peter; on the contrary it was agreed below that he took a fee. The only question is, on what contingency was it to go over to Peter, by way of executory devise. If it depended merely on the devise to Francis, and the first part of the devise over, as far as to “ Peter Sheetz and to his heirs and assigns for ever,” the contingency would clearly be confined to a dying under twenty-one and withoutissue. Or must be construed and, otherwise three consequences result, which the testator could not have intended. First, Francis might have died under-age leaving issue, who would not have taken the land. 2dly, The words under lawful age must be rejected as having no meaning, the estate g3ing over if he died without lawful issue at any time after twenty-one. 3dly, He could not charge the land after twenty-one for the payment of the money to Peter. The grammatical construction therefore violates the plain intent of the testator, which has always been held a good-reason for rejecting- it, and adopting the other. Price v. Hunt , Walsh v. Peterson , Framling ham v. Brand , Barker v. Suretees , Fairfield v. Morgan . In Cheeseman’s Lessee v. Wilt, in this court in the-case of a will, and in Massey’s Lessee v. Rawle in the Court of Appeals in the case of a deed, the same construction prevailed. But the adoption of this as the contingency, it was said, opposes the general intent of the testator, and attributes to him a most improbable supposition, that Francis could .have issue before twenty-one. And it was also said, that there are two other points of time for the devise over to take effect, one in the will, namely the death of Francis without issue living at that time, and the other in the codicil, his dying under thirty and Without issue, one of which must be adopted. It is to be premised, that as the first words give a plain estate in fee, absolute at twenty-one, it is not to be defeated but by words equally plain, or by necessary implication; such implication as is necessary to effectuate the manifest general intent of the testator. Doe v. Perryn , Evans v. Astley , Chapman v. Brown . The general intent it is supposed was to exclude the lessor of the plaintiff; the evidence of which is, that the testator did not like her husband, and that she gets a legacy of 500/. out of the land, which is inconsistent with an intention that she should have the land. The first evidence of this intention does not appear in the will. The husband gets the 1000/. legacy, if it is paid to his wife during her life. The other, has not the least weight, because she gets the legacy only in the event of the executory devise taking effect, which is no argument against her having the land by descent, if it does not take effect. The improbability that the testator could have supposed that Francis, who was then twenty, might die under age,, leaving issue, is an objection founded merely in conjecture. He had a year to many, and to leave his wife enceint, which was not an improbable event. In Fairfield v. Morgan, the devisee was within fifteen months of age, and the objection, though made, did not receive the least attention from the court. The argument for confining the dying without issue, to the time of Francis’s death, is founded upon the testator’s direction, that the survivor of his two sons should then pay the SOOL to Elizabeth; from which it is inferred, that Peter was to take upon the death of Francis, and therefore the dying" without issue meant issue living at that time. The whole turns upon the word survivor. Now the executory devise to Peter, whether it took effect at one time or another, did not depend upon his surviving Francis. If he had died before Francis, and before the estate became absolute, the chance of benefit by the executory devise would have descended to his heirs. Jones v. Roe . If he had died before Francis, and then Francis died under age and without issue, the land would have gone to Peter’s children, and yet Peter would not have been survivor. Survivor is used with reference to the subject matter, and means the son, or his representatives, who should take the whole; otherwise if Peter died, and then his children took, Elizabeth would lose the legacy. The only-instance in which that term has been held to shew an intention that the estate should go over upon the death of the first taker, is where the person over took but a life estate. Roe v. Jeffery . Then, is not an adverb of time annexed to the actual survivorship of Francis or Peter, for the legacy is to be paid out of the last payment with which the land was burthened; but it is annexed to the event of the whole estate, vesting in one of the sons, or his heirs. The term survivor, however is as well satisfied by our construction as theirs. The question is, at what time survivor? and we say upon the death of Francis under twenty-one and without issue. The substitution of thirty in the codicil, for twenty-one in the will, is wholly without warrant, except as to the single power of selling. In fact, the restraint in the codicil, be it legal or otherwise, shews conclusively that the testator intended Francis should have an absolute fee-simple, at twenty-one. It presupposes a right in Francis to sell at that time, and attempts to restrain it; but the restraint, even if valid, does not -affect the quantity of Francis’s estate; it would descend, and might be devised, in perfect consistency with the restraint. On their construction of the codicil, the restraint was unnecessary; for if it substituted thirty for twenty-one in all respects, Francis, unless he had issue, could not sell until thirty. There is not, moreover, a word in the codicil about issue; there is no contingency stated, or in view; even if he had issue, the testator intended to prohibit his selling. The estate is to become, free, even from this restraint, at thirty. He may ■then do as he pleases with it: and what becomes of the argument, that it was to go over to Peter upon the death of Francis without issue living at that time, and of the argument for substituting thirty for twenty-one, which will make it go over upon his dying under thirty or without issue, that is at any time afterwards? The codicil applies only to the land given to Francis, and not to Peter’s personalty, which conclusively shews that it does not respect the vesting of the fee by the will, for the limitation over is there the same to Peter as to Francis. These supposed evidences of intention fall infinitely short of declaration plain, that the testator intended to defeat the fee of Francis after twenty-one, even if there was nothing to counteract them. But here- the fee is strengthened by the strongest intention in its favour. 1. The limitation over extends to the horses, wagons, clothing, &c. of Francis,' in their nature perishable, and which would not be in existence long. Would the testator make these the objects of an executory devise, to take effect at the distance of ten years afterwards? 2. As there are the same words in the devise over of.Per ter’s estate to Francis, the personalty given to Peter is subjected to the samé contingency. Did the testator intend that he should merely have the use of it up to the time of his death? 3. There is no stronger mark of an absolute fee-simple than barfhening the devise with the payment of money. Qn principles of justice as well as of law, if a man pays fora thing, he ought to have it. By our construction, Francis would not have to pay until the fate of the executory devise .was known, a year after the testator’s death, when he would be of age. By the defendant’s he must go on paying, without making terms or conditions, until near thirty, by which time he would have paid upwards of 1500/. to Peter, besides the mother’s annuity; and then if he died without issue, Peter would take the land and the money too. This cannot have been the testator’s intention. Flow could Francis have paid for the land without a fee? Who would have trusted him, if on dying under thirty without issue, the land was to go over? Ingersoll argued for the defendant in error. He- admitted that the intent of the testator must govern the construction; that there was no magic in particular words further than as they shewed the intent; and that or might be construed and, and vice versa, in order to effectuate the testator’s purpose. But he contended, that for this very reason, cases upon wills had very little weight unless they were exactly in point, as was said in Roe v. Grew . They may serve to guide with respect to general rules of construction. But the intention being the polar star, it alone is the particular rule, which ought to be the most critically observed. Gulliver v. Poyntz . No technical form is necessary to convey the testator’s meaning. No detached part of a will can be considered as giving the law to the rest. The meaning is to be collected from the will in question, by attending to the several parts of it, and by comparing and considering them together, without relying.in any great degree upon decisions on other wills, or upon a particular in opposition to a general intent. Strong v. Cummin , Throgmorton v. Holyday , Hay v. Earl of Coventry , Bridgwater v. Bolton , Robinson v. Robinson , Doe v. Dacre . In this case or cannot be construed and, without defeating the testator’s intention, as it is collected from the whole will. A clear intention to keep the .estate from the lessor of the plaintiff, or in other words, that it should not go to her upon 'the death of Francis, is manifest from his giving her a legacy out of this land in that event. The will contains evidence that he disliked her husband, as in case of her death, he gives even the* remnant of the 1000/., then unpaid, to his executors for the use of her children. He does not contemplate the death oí Francis except under such circumstances as would either give the estate to Peter or to his own issue, in neither of which cases would she get it. His intention throughout was therefore that she should be excluded. There are three periods at which the testator may be said to have intended that the devise over should take effect. 1. Upon a death under age and without issue, which is the plaintiff’s argument. This however is not a plain, but an improbable intention, because the testator could not have contemplated a dying with issue under that age, In all the cases which have been cited, where or has been construed and, the reason for doing it has been a supposed intention in the testator not to leave the issue-destitute, which intention could not be carried into effect by any other construction. But if the testator could not have contemplated issue, the argument-falls. Francis was twenty years and eight days oid at the date of the will, and was at that time unmarried; it was but a possibility that he should have issue before twenty-one, and therefore it cannot be said tp have been plainly or even probably the intention of the testator to have provided for such issue. 2. Upon his death, without issue living at that time. This will support the general intent to keep the estate in the blood of Francis, or to give it over to Peter at the death of Francis, and thus exclude the lessor of the plaintiff. There is strong evidence that by the will the failurg of issue was limited to that time, because the estate was to go over to Peter as survivor. An estate to A in fee, and if he dies without issue living B, ihen over, is a good executory devise. It is Pells v. Brown . The failure of issue is limited to the death of A. So hen Peter as survivor was to pay 500l. to Elizabeth. It is not the survivor or his heir that was to pay, according to the plaintiff’s argument, but' it is “ the survivor of my two “ sons shall then pay,” which shews it to have been personal to the survivor, and in his life time. It moreover points out the time when it was to go over, then, being in this case an adverb of time, referring to the death of Francis, as was ruled in Wilkinson v. South . It is like the case of Nichols v. Skinner , which was a devise of portions of bank stock to the testator’s four children, payable at their respective ages of twenty-one or marriage, and in case any of them should die before the time of payment, or should die without issue, then his share to the survivor or survivors. This was held to be such a dying without issue as that the survivors could take, which must be in their lives, and therefore good. The same principle in Hughes v. Sayer . That .there being real property in this case will vary the rule of construction, is not so clear, since the late doubts of Forth v. Chapman expressed by lord Kenyon. The construction being sound as to the personal property devised to Francis, it is hardly reconcilable to reason, that a different construction of the same words in the same will can square with the testator’s intention. It is certainly left in doubt by what lord Kenyon said in Porter v. Bradley , and in Roe v. Jeffery . Daintry v. Daintry , Richards v. Lady Bergavenny , Knight v. Ellis , Denn v. Shenton . 2 Fearne Cont. Rem. 195. 209. Throughout the will the testator intends that the land shall be taken by survivor, as in the case of the house devised to the wife for her life, which after her death is given to his sons as joint tenants. 3. If the last period is not intended, the codicil at least dhanges the period of twenty-one in the will, and substitutes thirty7. Supposing the construction on the will to be that the testator intended an absolute estate at twenty-one, the codicil postpones it to thirty; and whether it be read, under thirty and without issue, or under thirty or without issue, the law is equally with the defendant. The restraint upon the power1 of selling means that until that time the estate should not be absolute. The payments to be made by Francis before thirty, are of no consequence; because where a testator intends that the .estate shall go over upon a certain event, charging the devisee with 'payments will not alter the event. Francis took the estate with the chance of havitig it absolutely in a certain event, which was worth the payment. It no where appears that the money was to be raised out of the estate, though it was charged upon it; and therefore it cannot be argued that the testator intended it should be absolute at twenty-one, ill order that Francis might raise the money out of it. Pollexf. 645. 3 Atk. 193. 3 Atk. 390. 2 Stra. 1174. 5 Bos. & Pul. 38. 3 D. & E. 493. 3 Burr. 1574. 3 Burr. 1634. 3 D.& E. 88. 7 D. & E. 595. 2 Wils. 324. 3 Wils. 143. 2 Burr. 770. 3 Burr. 1625. 3 D. & E. 86. 1 Salk. 237. 1 Burr. 50. 1 Bos. & Pul. 256. Cro. Jac. 590 7 D. & E. 557. Prec. in Ch. 528. 1 P. Wms. 534. 1 F. Wpis. 664. 3 D. & E. 146. 7 D. & E. 595. 6 D. & E. 314. 2 Vern. 324. 2 Bro. Ch. Ca. 577. Cowp. 410. [MAJORITY — Tilghman C. J.] Tilghman C. J. delivered the opinion of the court. This case arises out of the will and codicil of Peter Sheetz deceased. Whether his son Francis Sheetz, also deceased, took an estate in fee-simple in the land devised to him, indefeasible on his attaining the age of twenty-one, is the question. If he did take such án estate, then the plaintiff, his heir a't law, is entitled to recover; if not, the law is with the defendant. The testator devised to his son Francis two tracts of land, “ to have and to hold the same to him and to his heirs and “ assigns for ever,” subject to the'payment of 2300/., which he gave to his son Peter, to be paid as follows, viz: 100/. at the expiration of a year from the testator’s decease, then the sum of 100/. for three years successively, the next year the sum of 500/., the next year the sum of 150/., and then each year 150/. till the whole should be paid. He also gave the said Francis sundry horses, cattle, sheep, implements of husbandry, and'articles of household furniture. He gave his wife Catharine an annuity of 24/. a year for her life, to be paid by the said Francis, and charged the same on the lands devised to him. He also devised to his wife a house and lot for her life,and gave the same after her death to his sons Francis and Peter their heirs and assigns for ever. After that comes the following clause. “ But in case my said son Francis shall “ die under the lawful age of twenty-one years,,or without “ lawful issue, then and in that case I give my said-son Fran- “ cis’s share in my said xvhole estate unto my said son Peter “ and his heirs and assigns for ever; and in case my said son “ Peter shall die under the*lawful age of twenty-one years, or without lawful issue as aforesaid, then and in that case u I give apd -bequeath my said son Peter’s share in my saici “ whole estate unto my said son Francis, and to his heirs and assigns forever; but in either case, the survivor of my “ said two sons (Francis and Peter) shall then pay unto my “ said daughter Elizabeth (the plaintiff) or her heirs, the sum “ of 500/., but to be taken out of the last payments of my first “ mentioned plantation.” By a codicil dated two days after the will, “ he ordered and “ particularly requested, and did not allow his said son Fran- <£ cis to sell any part of the land which he had in his said will ££ given to him, until he arrived at the age of thirty years, “ and then he might do with the same as he pleased.” I will first consider the will, unconnected with the codicil; and then examine them together. The first devise to Francis is a fee-simple, expressed as clearly as words can make it; accompanied too with an obligation to pay large sums of money, which is inconsistent with an intent to give any estate less than a fee-simple. Afterwards came the qualification, that in case he should die under twenty-one, or without issue, then and in that case the estate should go over to his brother Peter in fee. Here is nothing inconsistent with the fee-.simple first given to Francis. But the question is, how are these last words to be construed? They contain two contingencies, a dying under twenty-one, and a dying without issue. Must they both concur, before the estate passes to Peter, or may he take on the happening of either? We are not without authorities to assist us in the construction. Those expressions have often been used in wills, and often received the consideration of courts of justice; and from the case of Price v. Hunt, Pollexfen 645, in the year 1684, down to that of Hawkesworth’s Lessee v. Morgan, determined by the court of King’s Bench in Ireland, whose judgment was affirmed in 1805 by the British house of lords, the word or in cases Like the presergfchas been construed conjunctively; that is to say, it has bdSjBneld that the executory devise over did not take effect, uaress the first devisee died under twenty-one, and also without issue. The same construction was made in this court in the case of a deed, in Massey’s Lessee v. Rawle, and in the Supreme Court, according to one of the cases cited, Cheeseman’s Lessee v. Wilt, in the case of a will. But the defendant’s counsel insist that wills are not to be construed accordingto adjudged cases,unless directly in point; that every will depends on its own circumstances, and every ' will shallbe construed so as to carry into effect the intention of the testator, provided such intent be lawful. These principles are sound, and the authorities I have mentioned are founded on them; for. in order to effectuate the intent of the testator, the word or is stripped of its usual disjunctive signification, and converted into a conjunction copulative. Why has this been done? Because, if it was construed disjunctively, the devisee, who was the first object of the testator’s bounty, might die under twenty-one leaving children, and those children would be deprived of the estate, which would pass over to other persons. It is very natural that a man should give his son an estate in fee, and yet provide that it should go to a third person, in case his son died without issue, and before the age at which the law permitted him to dispose of it, either by contract or by devise; but that he should give him a fee-simple, and then deprive his children of it because he happened to die before twenty-one, is altogether unnatural and improbable. The cases therefore that have been cited on this, subject, stand on a foundation not to be shaken. But granting that these expressions are generally to be construed as I have mentioned, still it is said, if there are any other parts of this will which indicate a contrary intention, the construction may be different. Undoubtedly it may. Let us see then wha.t more there is in the will.' The defendant’s counsel rely on one fact not mentioned in the will, but found by the special verdict, which may be properly taken into consideration. It is this, that at the time of making the will Francis was twenty years and eight days old, and therefore it is said, the probability of his having issue before twenty-one was so small, that hÍ6 father cannot be supposed to have regarded it. I do not see the force of this argument. It was very possible, and not very improbable, that Francis might marry, and either have issue, or have a wife pregnant, in twelve months from his father’s death. We are to construe this will according to the situation of things at the time it was made, without taking subsequent events into consideration. It is worthy of remark too, that in the last adjudged case which was cited, Hawkesworth's Lessee v. Morgan in 1805, the first devisee wanted but fifteen months of being twenty-one years old, when the will was made. But no regard was paid to this objection. Let us now see what effect the codicil will have, considered as connected with the will. Francis is restrained from selling his land till he attains the age of thirty. Whether this restraint on a fee-simple estate is consistent with the principles of law, is immaterial. We are endeavouring to discover the intent of the testator, and it is certain that he intended to lay the restraint. The defendant’s counsel contend, that the age of thirty is to be substituted for the age of twenty-one annexed to the devise to Francis in the will, and then it will stand thus: — in case Francis dies without issue or before he attains the age of thirty, then and in that case Peter shall take. Now in the first place this is doing violence to the words of the codicil, for Francis was not to be restrained from devising the estate to whomsoever he might think proper, nor from any other act consistent with a fee-simple, save the power of selling. The testator must have had some reason for imposing this restraint. The most obvious one is, that he had discovered symptoms of a heedless and extravagant temper in Francis, which made it prudent to put it out of his power to sell, till he arrived at a very mature age; but it might be by no means necessary to debar him of the power of devising it, in case he died before thirty. But there are other parts of the will to be considered in deciding the effect of this codicil. If Francis had survived the age of twenty-one and lived to the age of near thirty, and then died, what in the mean time was to be done with the payment of his mother’s annuity, and his brother Peter’s legacy? They must have been paid. By the time Francis arrived at the age of twenty-nine, he would have paid 1720/. How was he to have raised this money, unless his estate in fee-simple had been absolute, on his attaining the age of twenty-one? And could the father have intended, that Peter should receive such large sums from his brother, and afterwards have all the land? It cannot be supposed. And yet it is to support an intent of this kind, that the words of the codicil are to be perverted from their natural meaning; whereas, if they are. construed according to their obvious kense, all inconveniences are prevented, and the will and codicil átand in perfect unison. , ■ Upon the whole of this case it is the unanimous opinion of the court, that Francis Sheetz took an estate in fee-simple in the land devised to him, which became absolute when he attained the age of twenty-one years. Consequently the plaintiff, who is his sister of the whole blood, and his heir, is entitled to recover in this ejectment. • The judgment of the Supreme Court must be reversed. Judgment reversed.