Bill in equity filed in the supreme court of the District of Columbia by the children of John L. Vogt, to determine the meaning of a clause in the latter's will.

The defendants in the case, appellees here, were Charles Graff and Frederick C. Gieseking, executors and trustees named in the will, and Matilda S. Vogt, infant daughter of one of the complainants, appellant here, Frederick H. Vogt.

The part of the will to be construed is as follows:

'All the rest and residue of my real estate shall, when my youngest surviving child attains the age of twenty-one years, or one year thereafter, in the discretion of my executors, be sold by my executors at public auction, after due notice in the newspapers of this city. The proceeds of said sales shall be then divided among my heirs, share and share alike, and paid over to them respectively at once, except the share coming to my son, Fred H. Vogt. Said share shall be paid to Charles Graff and Frederick C. Gieseking, as trustees, by them invested, the income therefrom to be paid said Fred H. Vogt, the principal to be paid to his heirs after his death.'

Regarding this provision as a simple composition of English words, we should have no difficulty in deciding that the testator intended to give to Frederick H. Vogt a life estate in the designated share. But it is contended that the meaning of the testator is determined otherwise by the rule in Shelley's Case. The rule is thus laid down: Where 'the ancestor, by any gift or conveyance, takes an estate of freehold, and in the same gift or conveyance, an estate is limited, either mediately or immediately to his heirs in fee or in tail, . . . 'the heirs' are words of limitation of the estate, and not words of purchase.' 1 Coke, 104; Daniel v. Whartenby, 17 Wall. 639, 641, 21 L. ed. 661, 663; Green v. Green, 23 Wall. 486, 488, 23 L. ed. 75, 76.

It will be observed that, under the rule, by a technical circumlocution, one estate only is created, though two parts are expressed,—a particular estate for life, with a remainder to the heirs of him who takes the particular estate. The rule, therefore, has been a fruitful source of controversy. On the one hand it has been praised as having a substantial foundation and necessarily expressing and enforcing essential legal distinctions in the transfer of property; to be, indeed, the very opposite of a technical rule, and one 'established through a long course of decisions extending over a great many generations,' and declared therefore to be a rule of substance in order to give effect to the intention of the grantor or testator. On the other hand, it is attacked as oftener defeating intention than executing it, being applied as an absolute and peremptory obligation to convey or devise an estate in fee simple even against an express declaration to the contrary. Invective, therefore, has been employed against it, and even ridicule; and English and American judges, while yielding to it, have pronounced it unjust. We, however, need not enter into the field of controversy. Whether it had a legal and substantial foundation when first pronounced, or yet has, whether it is a useful rule of property or part of the debris of an ancient system, having now only the mischievous vitality of frustrating the intention of a grantor or testator, we need not consider.

It is conceded to be a rule of property in the District of Columbia, and we are brought to the question whether, consistently with it, the intention which we have seen Vogt has expressed may be executed?

The statement of the rule we have given. There are certain conditions attached to it which give precision to its application. One of these is that the remainder after the particular estate must be to heirs of the whole line of inheritable blood, designating those who are to take from generation to generation. And they must be heirs of him who takes the particular estate, and by devolution from him.

This is important to be observed. The heirs must take from the first taker, and not be a description of a class taking from the testator, becoming themselves'the root of a new succession.' Guthrie's Appeal, 37 Pa. 9. Hargrave, in his Law Tracts, states the test to be 'whether the party entailing means to build a succession of heirs on the estate of the tenant for life.' If he does not, but intends to describe a class taking from him, the rule does not apply. We proceed to illustrate this.

Kemp v. Reinhard, 228 Pa. 143, 29 L.R.A.(N.S.) 958, 77 Atl. 436, expresses the principle, and its facts bring it into close similarity to the case at bar. In that case the testatrix gave to her son, Jacob E. Kemp, the use and income of seven enumerated properties 'for and during his lifetime.' Then followed this clause: 'And immediately after the decease of the said Jacob E. Kemp, I give and devise the above-described seven tracts or pieces of land devised to him herein for life to his issue in fee. Should he, however, die without leaving issue living, I give and devise the same unto my son Pierce G. S. Kemp, his heirs and assigns in fee.' The court said:

'Though the intention of the testatrix may have been to give only a life estate to the appellant, if in the devise there was a limitation of the estate to his heirs, to take by devolution from him at his death, her intention is overridden by the rule in Shelley's Case; but in every case in which the application of that rule is involved, the first question is whether the devisor or grantor intended a limitation of the remainder in fee or in tail, as such, to the heirs of the first taker or that there should be the root of a new succession taking directly from the devisor or grantor as purchasers. When the latter intention appears, the rule has no place, and the intention must be given effect.'

"It is very carefully to be noted that in searching for the intention of the donor or testator, the inquiry is not whether the remaindermen are the persons who would have been heirs had the fee been limited directly to the ancestor. The thing to be sought for is not the persons who are directed to take the remainder, but the character in which the donor intended they should take. In the very many cases in which the question has arisen whether the rule was applicable, the difficulty has been in determining whether the intention was that the remaindermen should take as heirs of the first taker, or originally, as the stock of a new inheritance.' Guthrie's Appeal, supra.'

Hall v. Gradwohl (1910) 113 Md. 293, 29 L.R.A.(N.S.) 954, 77 Atl. 480, is also somewhat similar to the case at bar, and we quote the more readily since it is said that the rule in Shelley's Case prevails in the District of Columbia because it prevailed in the law of Maryland. After discussing the rule, the court said that 'it is not a favored' one 'in the law of Maryland, although the court will never refuse to apply it in a proper case.' And it was decided that where the particular intention of the testator is not to use the words of inheritance in their full legal sense, but 'as mere descriptio personarum or a particular designation of individuals who were to take as purchasers at his death,' the rule should not prevail. The will passed on made certain bequests and devises and then provided: 'The balance of my estate to be equally divided among my five children or their heirs, share and share alike,' with this proviso: 'That the portion to which my daughter Sarah [Gradwohl] may be entitled shall be invested in some safe stocks or other securities, the said Sarah [Gradwohl] to receive the income from the same during the term of her natural life, and at her death to be equally divided among her children or legal heirs.' The court refused to apply the rule. To apply the rule it was said that the words 'children or legal heirs' would have to be treated as words of limitation; that is, as 'marking out the extent and duration of her interest.' This construction the court rejected as consonant with 'neither reason, policy, justice, nor equity,' and could only be supported by giving to the words "legal heirs,' which are superadded to the word 'children,' the arbitrary meaning placed upon them 'by an artificial rule of law." The court, after an analysis of the will, decided that it plainly manifested a particular intention to use those words as mere descriptio personarum, as a particular designation of individuals who were to take as purchasers at the death of the testatrix.

The conclusion of the court was based upon the special provision of the will which directed that the portion given to the testatrix's daughter Sarah should be invested in some safe stocks or securities, and that Sarah should 'receive the income from the same during the term of her natural life,' and should be at her death 'equally divided among her children or legal heirs.' This language, the court added, manifested a particular intention on the part of the testatrix 'to use the words as mere descriptio personarum. . . . In such cases, under all of the authorities, the rule in Shelley's Case does not apply.'

A like intention is expressed in Vogt's will. His real estate, after satisfying particular devises, is directed to be sold when his youngest surviving child shall attain the age of twenty-one years. The proceeds he directs 'shall be then divided among my heirs, share and share alike, and paid over to them, respectively, at once, except the share coming to my son, Fred H. Vogt. Said share shall be paid to Charles Graff and Frederick C. Gieseking, as trustees, by them invested, the income therefrom to be paid to said Fred H. Vogt, the principal to be paid to his heirs after his death.' If the rule in Shelley's Case be applied, it will destroy all of the distinctions that the testator has expressed. The distinctions are radical, and must be looked to in ascertaining his intention. And this was done, as we have seen, in Hall v. Gradwohl, supra, and it was done, to, we may say in Kemp v. Reinhard, SUPRA. THE LATTER CASE HAS NOT THE INFIRmity that Counsel for appellant asscribes to some of the earlier Pennsylvania cases, of regarding the rule as one of construction, yielding to and not overriding the intention, as, it is contended, its unflinching and dominating character requires.

The intention of the testator, therefore, may have some sway. We may inquire, at least, as to his intention in the use of the word 'heirs,' whether as taking from him or as taking from the life tenant. The rule 'is silent until the intention of the grantor or devisor is ascertained.' Kemp v. Reinhard, supra.

Of Vogt's intention we have no doubt. It is made clear by the distinctions to which we have adverted. To his other children their shares are to be delivered immediately upon the sale of the real estate. To appellant there is nothing of his share to be delivered at all. It is to be delivered to others for him, he to receive, not the body of the share, but only the revenue from it. He is separated from it completely. He does not handle it or direct its investment, and after his death, the testator, through trustees he has selected, directs it to be delivered to persons designated by him; or, to use the language of the cases, described by him as taking from him. Opposing reasoning, it is true, might be brought forward, but this court, while asserting and recognizing the peremptory force of the technical terms of the rule, has said: 'But if there are explanatory and qualifying expressions, from which it appears that the import of the technical language is contrary to the clear and plain intention of the testator, the former must yield and the latter will prevail.' Daniel v. Whartenby, 17 Wall. 639, 643, 21 L. ed. 661, 663.

Another condition of the application of the rule is that the particular estate and the estate in remainder must be of the same quality,—both legal or both equitable. The court of appeals decided that such condition did not exist, and on that ground, as well as on that which we have discussed, held adversely to appellant. In other words, the court decided that the estate given to appellant was equitable and the estate devised to the daughter legal, and that therefore the estates did not merge. It is admitted that the estate taken by appellant is equitable; the contentions of the parties turn upon the character of the estate given to his daughter. We will not consider the contentions, nor whether the rule is applicable to personal property. We rest our decision on the ground discussed by us.

Judgment affirmed.