Passmore's Administrator's Appeal

The opinion of the Court was delivered by Lowrie, J.

In regarding the principal clause, it is very apparent that the testator does not use the word “ revert” in the strict legal sense; for he certainly means to exclude Henry from having any share in the reversion. In other words, the estate which the devisees or legatees take is not by way of reversion, but' a gift of the reversion. It is intended for only some of his heirs, and is therefore only a remainder. And he does not use the word “heirs,” as correctly indicating their relation to him, but as meaning his children and grandchildren.

The trouble is to ascertain what he means by his “ surviving heirs herein named,” his daughter Leah having died before Henry’s estate terminated. Was she a surviving heir of her father within the meaning of his will ? If, when he wrote it, he was thinking of his children and grandchildren who had already died, or who might die before he should, then she was. This may have been his thought, for he does not describe those who are to take after Henry’s death, as those who shall be then his surviving heirs, nor as the survivors of his devisees, but as surviving heirs who" are herein named, which grammatically refers to the present time, that of the making of the will. And such also would be the most natural interpretation of a gift of the reversion to be divided “ agreeably to the intestate laws.”

But this clause presents itself in other aspects. The estate to *383 Henry was in terms a life estate, with remainder to his unborn issue, if he should leave any. Now if we treat this as constituting an estate tail, then the clause we are especially considering gives a vested remainder in the other devisees or legatees, or in some one for their common benefit. If it was only a life estate, then the estate of his unborn children was a contingent remainder, and that of the other devisees a vested one subject to be defeated by the death of Henry leaving issue living. In either way, therefore, the other devisees or legatees had a vested estate at the moment of the testator’s death: 3 Madd. 410; 2 State R. 69; 1 Baldw. 174 ; 2 Keen 284; 7 W. & Ser. 279.

This view is very important, for it gives to the devisees an estate independently of the directions concerning distribution, and makes those directions merely the means of placing them in the enjoyment of it. And if we give the fullest meaning to the word “revert” we arrive at the same result; for as a reversion it must vest in them immediately on the taking effect of the temporary estate of Henry, that is, on the testator’s death.

When a devise or bequest is ambiguously expressed, it is always important to bear in mind the inclination which the law has in favor of the heirs, which with us is a rule of equality, and also in favor of a vesting of the estate at the death of the testator, or as early as possible thereafter, and also in favor of an absolute rather than a defeasible estate. All these principles are of use here.

It is in perfect accordance with them, and under their influence, that it has so often been decided that the word survivors shall be referred to the death of the testator, if there is nothing indicating a contrary intention. It favors, in this instance, equality among his heirs or devisees, and we see no word tending to show that he meant to place Leah' on a different footing from any of the others. He makes no provision in defeasance of her estate in any event; but, on the contrary, he seems to say that it shall go to her as an heir agreeably to the intestate laws. It requires clear expressions or implications to divest her vested estate.

We are therefore of opinion that in providing this remainder for his “surviving” heirs, he meant his “other” heirs or rather devisees and legatees. And when he said “ agreeable to the intestate laws” he added a confirmation to this view.

Decree accordingly.