A subsequent limitation of personal property, that had been given to, and absolutely vested in the first taker by a previous clause in the will, declared illegal. (Slaughter vs. Slaughter, ante.)

The intention of the testator should be derived from the terms of his will, rather than from the testimony of the draftsman.

A failure of issue is taken to be indefinite, not according to the course of after events, but as the possibility thereof may exist at the death of the testator. The words "heir at death," in the will under consideration, as “die without heir," in Slaughter vs. Slaughter, declared to mean "child" or "descendant."

Appeal from Union Circuit Court in Chancery.

Hon. LEN B. GREEN, Circuit Judge.

J. H. ASKEW for appellant.

Under the state of case, did the court err in making the decree, to reverse which this appeal was taken? We insist it did.

And 1st, we maintain that it was competent to prove the sense in which the testator used the words "die without an heir at death," as expressed in the 7th clause of his will by the scrivener

who wrote it.

That is, it is competent to prove that he did not mean by the word "heir," those, who, by law, would take as in case of intestacy, in a technical sense, but that he meant issue of the body of the said Fanny E., living at the time of her death, and to this point we think is the case of Glanton vs. Anthony et al., 15 Ark., 543; Ryers et al. vs. Wheeler, 22 Wend., 148, and particularly at p. 153, where the court declares the declarations of the testator are receivable to give a name or character, either to

the devisee or the property devised-and upon the admission of testimony generally, to explain writing, see 1 Greenl., commencing at sec. 296; 1 Phil. on Ev., top p. 582; and note 939; 2 Phil.. from 646 to 650, and 3 v. p. 1362; 1 Story Eq., from sec. 152 to 161, inclusive; 6 Cruise Dig., 170; Hall vs. Leonard, 1 Pick., 27; where the court expressly declared, a parol averment may be admitted to ascertain the person meant: see, also, Powell vs. Biddle, 2 Dall. R, 70; Thomas vs. Stevens, 4 J. C. 607; and as a consequence to ascertain one not meant, 10 Mass., Sargent vs. Town; in this case the court permitted parol testi. mony to enable it to determine the character of the estate intended to pass by the will.

And surely this testimony is competent, at least to show: 1st, that the testator did not intend to use the word “heir” in a technical sense, under our statute of descents and distributions, or if he did, which one of his heirs, both the complainant and appellant, come within that description of persons by the use of the word in its technical sense, if the word "heir" applies to those who may take by our statute in the ascending line has any technical sense attached to it at all. And secondly, that the testator did not regard either of the parties as heirs in the sense in which he used the term, and we think that Lord Chenny's case clearly demonstrates the admissibility of the testimony: see 1 Phil. Ev. 532.

And 2dly. We insist that the claim of the appellant, under the will of the testator, belongs to that class of cases, denominated contingent executory devises such a devise, upon a contingency to happen in the extent of a life or lives in being, and twenty one years and a fraction, is always allowed. And in determining the rights of the appellant, the first question that presents itself is, whether the devise over is upon a definite or indefinite failure of issue, and that it is the former, there can be no doubt, as the contingency in this case is in these words: "It is also my desire, that if my said daughter, Fanny E. Robinson, or any mutual offspring that may exist between myself and beloved wife, depart this life before arriving at the

age of maturity, or without an heir at death, in that event, all the property which may have been inherited through me, in any way, shall be inherited by my beloved father; and, in case of his demise before any of these circumstances occur," then over to his wife, complainant and others. See Williams vs. Dan.iel, 12 Wheat. 564; 4 Kent 268, 270, 271, 272, 275; Fasdick vs. Cornell, 1 J. R. 440; Moffatt vs. Strong, 10 J. R. 12; Jackson vs. Stats, 11 J. R. 337; Wilks vs. Lyon, 2 Cow. 362; Lion vs. Burtis, 20 J. R. 483; Richardson vs. Noys, 2 Mass. 57; Kirk patrick vs. Kirkpatrick, 13 Ves. 476; Hulbert vs. Emmerson, 16 Mass. 241; Cook vs. Derandes, 9 Ves.; Chandler vs. Price, 3 Ves. 99. And having, as we conceive, by the foregoing authorities, fully shown that the devise over to appellant, was upon a definite failure of issue, it is therefore not void, as being too

remote.

The next question that presents itself is, is the devise over to the appellant void, as being repugnant to what precedes it? We think not; and in determining this question, due regard must be had to the construction of wills.

And one rule is, that the intention of the testator is the first and great object of enquiry. Maulding et al. vs. Scott et al., 13 Ark. p. 92. And to this object technical rules are, to a certain extent, made subservient. See 4 Kent 534-5, note a and b; 6 Cruise Dig. 147, title Devise; Helmer and wife vs. Shoemaker, 22 Wend. 136; 2 Atk. 280; 2 Roper on Leg..421, and cases there cited; Rathborn vs. Dyckman, 3 Paige, p. 26-7-8-9.

Another rule is, that if two parts of a will are totally inconsistent, the latter prevails. 2 Roper 322, 328, 329.

Another rule is, that the whole will shall be construed together, if possible. 2 Roper 330; 6 Cruise 147, s. 2. And to this end words may be supplied or transposed. 2 Roper 321, 322; 6 Cruise Dig. p. 150, and authorities there cited; 6 J. R. 54. And chancery is more liberal than courts of law; 2 Atk. 280. And with these rules we insist there is no repugnancy in the devise over, and to this point, cite the following authorities:

Deane vs. Test, 9 Ves. 147; Davidson vs. Dallas, 14 Ves. 576; Hughes vs. Sayer, 1 P. Wms. 534; Fosdick vs. Cornell, 1 J. R. 440; 10 J. R. 12; 11 J. R. 337; Wilks vs. Lyon, 2 Cow. 362; Lion vs. Burdis, 28 J. R. 483; Richardson vs. Nays, 2 Mass. 56; Harrison vs. Foreman, 5 Ves. 209; 1 Roper 414; Davidson vs. Dallas, 17 Ves. 576; 3 Atk. 396; 2 Atk. 280; Sargent vs. Towne, 10 Mass. 307, and note a, and the authorities cited by this court in the case of Moody vs. Walker, 3 Ark. 148, and particularly those in the brief of the able attorney of Moody.

We apprehend, however, that but for the misconception of appellee, as to what this court really decided in the case of Moody vs. Walker, appellee never would have filed her bill in this cause, and, no doubt, rests her whole case upon that case. We think that there is a vast difference between the two; in that case there was no time specified, at which the devise over was to take effect, and the court, upon the express ground, that it was bound by precedent, decided against what it believed to be the intention of the testator, because there were no words in the will indicating that he did not mean to be technically understood; and, therefore decided the devise over to be upon an indefinite failure of issue; because the testator, in that case, failed to say, that the devise over should take effect at the death of his daughter, Nancy.

CARLETÓN, for the appellee.

It may be well to lay down some general rules of construction of wills before we take up the will itself.

The first rule is, that the intention of the testator must prevail, if not inconsistent with the law. Moody vs. Walker, 3d Ark. 185.

2d. Every clause should be so construed with reference to the other items, that each item may take effect.

3d. The will itself is the only thing to which reference can be had. 1 Green. Ev. secs. 289 and 290; Hiscock vs. Hiscock, 5th M. & W. 363 and 367; Brown et al. vs. Salternstall, 3d Met. 423;

Jackson vs. Sill, 11th Johnson Rep. 501; 5th Prop.; Wigram on Wills 11 and 12; 3d conclusion ib. 211, 212, 213 and 214.

There are two exceptions to this rule-but two, viz: First, when the thing devised is not sufficiently described in the will to enable the court to ascertain from it what is intended to be devised. 5th Prop. Wigram on Wills, p. 11 and 12; 1st Greenl. Ev. secs. 289 and 290. Second, when the devisee is not sufficiently described in the will to enable the court, from it, to tell for whom the bounty was intended. Ib. Here the appellant attempts to use as evidence what the scrivener, Gatlin, meant by the 3d and 7th items of the will. A proposition most preposterous! Were such received, no will could stand.

4th. The words of the will should be taken in their primary and technical sense, unless it appear from the context that they were intended to be used in their secondary or popular sense. Wigram on Wills, Prop. 1 and 2; 3d Conclusion ib. 212 213 and

214.

5th. Plain and unambiguous words need no constructions. 2 Kent. 554, (5th ed.)

6th. A devise will always be held absolute, unless it clearly appear from the will that it was the testator's intention to limit it. Moody vs. Walker, 3d Ark. 188; Patterson vs. Ellis, 11th Wend. 299.

7th. If the first taker have the power of destroying or defeating the limitation over in personal property, he takes absolutely. 2 Kent. 252, seq.; Patterson vs. Ellis, 11th Wend. 275; Moody vs. Walker, 3d Ark. 185.

8th. When the testator gives personal property absolutely, and then attempts to create a limitation over, the limitation is void. Moody vs. Walker, 3d Ark. 189; Williamson vs. Daniel, 12 Wheat. 568.

Having laid down these rules, let us proceed to apply them to the case at bar.

It is clear that the third item of the will gives an absolute estate standing by itself. It makes no limitation, nor reference to any clause making one, but gives absolutely the effects