Ivins's Appeal

Mr. Justice Green delivered the opinion of the court, We are of opinion that the learned court below has pronounced the true construction of the testator’s will, in the final decree. The subject of the testamentary provision was an aggregate of personal and real estate. The objects of the testator’s bounty were his heirs and next of kin. By the will he had given all the residue of his estate to his three daughters absolutely and in fee simple. By the codicil he made a radical change, and gave the residue to a trustee, in trust to keep the real estate in repair and rented, and the personal estate securely invested, aud to pay the net income of the whole to the daughters, and to hold the principal in one third parts in trust for the uses and purposes declared by the last wills of his daughters respectively, and in default of wills, for the use of child or children of the daughters; “in default of such will, and child and children or issue of such, then the principal to go to the heirs and next of kin of the daughters so dying, as provided by the intestate law of Pennsylvania.” In this provision there are apt words which define with technical precision each of two classes of beneficiaries, to wit, heirs and next of kin. It has been so often held that when technical words are used in a will or other instrument they must, have their technical meaning, unless a contrary intent appear, that it would'be a mere affectation of learning to cite the authorities. On the question of intent, in this case, the will and codicil abound with evidence that the intention of the testator corresponded precisely with the strict legal meaning of the words used. The distinction between real and per [183] sonal estate is constantly preserved, both in the words which refer to them descriptively, and in those which relate to their disposition. Thus, the residue being composed of personalty and realty, ho gives and devises it, absolutely and in fee simple. lie gives the personalty absolutely, and he devises the realty in fee simple. This is the fifth clause of the will, and by the same species of concentrated and elliptical expression, he directs in the third clause of the codicil the same residue, given and devised to his daughters, to be “given to, and be vested inf the trustee absolutely and in fee simple, in trust to repair and rent the real estate and securely invest the personal estate, for the use of his daughters. Then when he provides for the contingency which has happened, to wit, the death of a daughter without a will, children or issue, he directs that the principal shall go to the heirs aud next of kin of the daughter so dying. It is impossible to doubt, from this language, that the distinction between real and personal estate was constantly in the - mind of the testator, and that he intended that the part of the principal which, consisted of realty should go to the heirs, and the part which consisted of personalty should go to the next of kin. We think we would be doing violence fo the manifest intention of the testator if we held to any other construction. There is no occasion here to give an untechnieab meaning to technical words, as was done in the cases referred to in the appellant’s argument, in which the word heirs was held to have the same meaning as next of kin, or distributees, or persons entitled under the intestate law. Such a course is sometimes necessary to effectuate a testamentary result, to prevent a will from becoming practically inoperative. Thus if a testator gives personalty to a class of persons whom he names as heirs, the law’ in aid of his intent will consider the word as descriptive of the persons who would take as the representatives by law of the deceased person. This doctrine is illustrated in various forms and circumstances in Patterson v. Hawthorn, 12 S. & R., 112; Buckley v. Reed, 3 Harris, 83; Gibbons v. Fairlamb, 2 Casey, 217; Eby’s Appeal, 3 Norris, 241, and other cases. These cases, however, do not at all conflict with those of the other class which hold that where technical words are used, and there is a subject to which they may apply, the technical meaning must prevail. Thus in Clark v. Scott, 17 P. F. S., 446, where a testamentary disposition was made quite similar to the one we are considering, this rule was strictly applied. On p. 451 Sharswood, J., said: “The testator, Thomas P. Ash, after devising his residuary estate, real and personal, to several persons, declared that in case of the death of either of them before him, the devise or bequest should not lapse, ‘but shall go to, and be taken by the heirs, [184] executors or administrators of said legatees or devisees so dying, in the same manner as if the same had been specifically devised.’ He was evidently aware of the distinction between real and personal estate. He has used throughout his will the words legally appropriate to each. All his legacies of mere personalty are by the words ‘give and bequeath,’ but when he comes to the residuary clause in which he blends both his real and personal estate, he is careful to use the words ‘give, devise and bequeath,’ and adds a limitation to ‘ heirs, executors, administrators and assigns.’ We may infer then that in the substituted gift for the lapsed devise the word ‘heirs’ was used in none other than its legal technical meaning. Apart, however, from this very important assistance at arriving at the true intention of the author of the disposition, it is a canon of construction settled in many cases, that the word ‘ heirs ’ shall receive its appropriate technical sense, unless there is some language or expression which shows that it was used in the broader and more popular sense.” Other illustrations of this ruling are found in Ralston v. Waln, 8 Wr., 279; Porter’s Appeal, 9 Wr., 201, and Eby’s Appeal in Wisler’s Estate, 14 Wr., 311. It does not seem necessary to pursue the subject further. Whether we consider the strict meaning of technical words employed, or the clear intent of the testator, as the guide in the construction of this testament filie result is the same. The husband is neither the heir nor the next of kin of his wife in the technical sense of those words, and there being other persons in being who do fill that description we must hold that they, and not he, are the true beneficiaries under this codicil. Decree affirmed at the cost of the appellant.