Carter v. Reddish. voyage, and he was lost. The main provisions of the will which relate to the disposition of his property are as follows: "I give and bequeath to my daughter Sarah the following real estate belonging to me, viz: My house and premises on West Third street; my house and premises on McAllister street, near to Fourth street, east; my house and all premises on New Market (or Eighth street); my house and premises on Cherry street, or alley; my house and premises on West Fourth street (a frame); a lot of ground, purchased of William Pierson, nearly opposite to Phillips & Speer's paper mill, and a lot of ground, purchased of William Hill Woodward and wife, situated in the northern liberties in the township of Millcreek, being parts of lot No. 26, as per deed, etc. "I give and bequeath to my son Stevenson the following real estate, belonging to me, viz: My house and lot on Harrison street; my brick house and premises on West Fifth street; my frame house and premises on West Fifth street; my two brick houses on Centre street, together with a lot on which they stand; my frame house and lot on Centre street, near the corner of Smith street; my frame house and lot on West Front street, formerly owned by Anthony Thompson and William Kenyon conjointly; also a lot of ground in the town of Springfield, Ohio, purchased of John and Elizabeth Baldwin; see records of Hamilton county, book 23, p. 424. Each of my aforesaid children to have and to hold the same during their natural lives, and to their heirs, and in case of the decease of both of my aforesaid children before they may be of maturity according to law, and without lawful issue, then the whole of the aforesaid real estate, as also all the real and personal estate, or any property whatsoever, which may be coming to them through this my last will, to be left to the surviving children of my sister Elizabeth Bentley, and my brother John Reddish, both of the town of Manchester, in England, equally to share and share alike the same. I give and bequeath to my children as aforesaid the whole of my remain Carter v. Reddish. ing property, whether real or personal, not enumerated heretofore, subject, however, to the disposal other ways of any part or parts thereof (as I may see fit hereafter), to be equally divided between the said Sarah and Stevenson, at the time the said Sarah becomes of age." "I will that the guardian of my children take into his kind keeping the following articles, to be given up to them before or at the time they and each of them become of age (as he shall see fit), viz: My portrait, painted by Corwine, together with a mantel time-piece, now in possession of guardian, together with my jewelry, plate, trinkets, etc., with the exception of my gold patent lever watch, seal, etc., to be given to my daughter Sarah, at the time aforesaid. "The residue of the articles above alluded to-viz., my iron chest or safe; my gold patent lever watch, chain, seal, and key; my books, of every description; my desk, with the boxes, trunks, etc., and in fact all of which may be found in my office (not otherwise disposed of)—to be given to my son Stevenson as aforesaid. And in case the decease of both my said children before becoming of age, then the aforesaid property, as well as all other property of which they may be possessed, or might become possessed on their becoming of age, shall be given up to the surviving children of my brother and sister, now residing in Manchester, or elsewhere, as aforesaid. I will that my executors take immediate possession of all my furniture, beds and bedding, etc., wheresoever the same may be found, and dispose of the same to the best advantage, placing the amount thereof to the credit of my children, share and share alike." "Further, I will it to be understood that at the time my eldest child, Sarah, becomes of age, and a division of my property takes place, that the guardian is still to retain the share coming to my son Stevenson until he, my said son, becomes of full age, according to law, and then the said share to be given immediately up to him, and the functions of the guardian, as also the executor or executors, to cease. "In regard to a certain piece of property situated on Carter v. Reddish. Third street, and being part of lot No. 109, in the town of Cincinnati, I wish it to be understood that, although the same may have been conveyed by me on the 19th day of August, 1826, to my wife Phoebe, subject, however, to my own control thereafter, that the same be strictly retained and given up to my daughter Sarah by my executors, as before provided for in this, my last will; the said Phoebe having never been worthy of such a gift, and said deed being forced from me, by her threats to destroy certain property in notes, bills, etc., which she had willfully purloined and secreted, E. Hotchkiss and J. Foster, Esq., being witnesses to the transaction." Aaron F. Perry, of Perry & Jenney, for plaintiff in error: I. There is no expression in the will, indicating that testator had any other estate in his mind for any one, than an estate in fee. He spoke in the concrete of "real estate,” of "property, real and personal." It was devised to his children, and if they should live to maturity, it was to remain theirs. But in case of the death of both, it was to be "left," "given up" to other devisees. Had it been given to them for life only, the interest, rents, and accumulations during their lives should have been theirs. On the contrary, all these accumulations were to become a part of the estate, and if anything had to be "given up" to nephews and nieces, all was to be given up, which otherwise had been given to his children. There is no indication that the property, which, in the contingency supposed, was to be "left" or "given up" to the children of his brother and sister, was to be theirs in any different, superior, or more unlimited sense, than it was to be his own children's, in case they should live to enjoy it. If his children should live to get possession, to a disposing age, there is no indication it was to be "left" or "given up" to anybody. If a different intention anywhere appears, it is in the habendum. The meaning which does appear there is in no sense in Carter v. Reddish. consistent with the devising clause. Hawkins, 203, 204; 1 Redfield on Wills, 473, sec. 4; Ib., n. 6; Frogmorton v. Holly, day, 3 Burr. 1623; Hawkins, 136, 137, 215. As to dying without issue: Hawkins, 215; Redfield on Wills, 706. An express estate for life to a devisee may be enlarged by implication. See authorities already cited; King v. King, 12 Ohio, 390. If, then, an express estate for life may be enlarged by implication, it may assuredly be enlarged by express words. Hawkins on Wills, 75. The language in this will, "decease without issue," does not mean "a general failure of issue," but does mean failure of issue living at the time. Parish's Heirs v. Ferris, 6 Ohio St. 563; Niles v. Gray, 12 Ohio St. 320; Hawkins, 176, 214; 3 Greenleaf's Cruise, 444. II. If I am right in the construction of this will, there was no life estate in testator's children, and no remainder to their heirs, issue, children, or descendants. Consequently the rule in Shelley's case has no bearing on it. But if the other side is right in supposing the will to devise a life estate to testator's children, with remainder in fee or intail to heirs, children, issue, or descendants, the rule in Shelley's case is in point. The same remark is true of section 53 of the wills act (2 S. & C. 1626), which is identical with section 47 of the wills act of 1840 (Swan's Stat. 319), and commonly spoken of as abolishing the rule in Shelley's case. The present will, having been made in 1831, can not, of course, be affected by a statute passed long after the title vested under the will. As to whether the rule in Shelley's case is operative in Ohio, see 12 Ohio, 471; 2 S. & C. 1626, Judge Swan's annotation. The rule in Shelley's case has been used as a rule of construction, like any other rule, to ascertain the meaning of a testator. In this sense I do not understand it to have been abolished or impaired. It has also been used as an imperative rule of property, to be enforced even as against Carter v. Reddish. the intention of testator. In this latter sense it has been abolished by the Ohio statute, and extensively elsewhere. "The great difficulty has been," says Kent, "to settle where the rule, and where the intention in opposition to the rule, shall prevail." 4 Kent, 721. Nearly two years after Reddish's will vested his estate in somebody, our supreme court held the rule in Shelley's case to be in force in Ohio, as an arbitrary rule of property. McFeeley's Lessee v. Moore's Heirs, 5 Ohio, 465. More than ten years afterward, December 7, 1843, after arguments unusually full and elaborate, Armstrong v. Zane, 12 Ohio, 287, and King v. Beck, 12 Ohio, 390, were decided. In Armstrong v. Zane, the court expressly asserted the rule as a rule of property, and such was clearly the ground of decision in the other cases. It is quite clear, therefore, that if an application had been made to any court in Ohio, having jurisdiction to construe Reddish's will, any time within fifteen years of its taking effect, the rule in Shelley's case, so far as pertinent, would have prevailed in its arbitrary sense. Indeed, all the cases decided in Ohio on the basis of the rule, were cases where the language construed would have caused more difficulty as to the real intention, than is caused by the language in Reddish's will. In Greenleaf's Cruise, he says the rule, "as now settled and expounded by modern decision," has the following qualification, viz: "Unless it clearly and unequivocally appear that the words (i. e., heir or heirs of the body) are used merely as descriptio personarum." 2 Greenl. Cruise, 305, top paging 381, n. 1. The note also states that Judge Story regarded the rule in the United States as a rule of construction. The will of Reddish, in the devising clause, was broad enough to carry a fee. The general frame of it was in accord with the idea of a fee in the first takers. Then in the habendum clause, "to have and to hold to them during their natural lives and to their heirs," without break, punctuation, or restriction of meaning; then the devise over is on condition of first devisees" dying before maturity,” which |