(Sloan v. Hanse.) of law in favour of collateral relations? The court will not be inclined to overturn authorities, for the purpose of disinheriting the brother, and heir at law, of the testator. On the contrary, the settled rule is, says Judge YEATES, "that the heir at law, is the favourite at law and in equity, and is not to be disinherited without express words, or necessary implication." Clayton v. Clayton, 3 Binn. 488. In regard to the question of intention. It appears that the death of the devisee was unknown to the testator, and there is nothing to show, that such an event was in the most remote degree contemplated by him; he, therefore, could not intend to provide against it; if he had, he would not have used these words. As between his cousin Richard and his brother John, there may have been reasons which induced him to prefer Richard; but, it is not to be inferred from the will, that he intended to prefer the brothers and sisters of Richard to his own brother John. Had the brothers and sisters of Richard stood upon an equal footing with him, in the estimation of the testator, they would have been named equally with Richard. The omission is evidence, that the testator did not intend to prefer them to his own brother. They also cited, Brett v. Rigden, Plowden, 341. Cro. Eliz. 422. Lessee of Smith v. Folwell, 1 Binn. 559. French v. M'Ilhenny, 2 Binn. 20. The opinion of the court was delivered by GIBSON, C. J.-The intention of the testator, when sufficiently apparent, is undoubtedly the polar star; and, it is sometimes said, that precedents serve rather to obscure, than to elucidate it. It is to be regretted, that this expression has been used by judges whose learning and ability give it currency. In the development of intention, rules of construction, which owe their existence entirely to precedent, and without which, no two minds would often, if ever, arrive at the same conclusion, are indispensable to certainty of result; particularly when, as sometimes happens, the judges are called on to suppose an intention, where, in fact, none ever existed. Any settled rule, which leads to a determinate effect, (in comparison with which, the fulfilment of any particular intent, is of secondary value,) is preferable to a process which would destroy every thing like stability of decision, and leave titles depending on intention, to the decision of chance, and the sport of opinion. A well established rule requires, that an implication by which the laws of descent would be suspended, shall be avoided: in other words, that the plain and certain disposition of the law, shall not be set aside, except in favour of an equally plain and certain disposition of the testator. To apply this to the will before us. The testator devises to his nephews, in exclusion of his brother of the half blood, all his "estate, both real and personal, to be divided between them, or to their heirs." Substitute and for or, and there is no room for dispute. This is resisted, because, as is said, it is never done but to (Sloan v. Hanse.) effectuate the testator's actual intention. But to take for granted, that the substitution would frustrate the actual intention, is to occupy the whole ground in dispute. It is said, however, that as the word estate itself, carries the fee, the word "heirs," would be altogether unnecessary, except to signify that the estate was limited alternately to each nephew, or his heirs, with a view to provide for the very contingency that has happened; and, that the inference from this is strengthened by the position of the word in the sentence. We may suspect that such was the object, but we have not sufficient ground to proceed on it as a thing judicially ascertained. The word heirs may undoubtedly be used as a term of special description, by which a devisee may take even in the life time of his ancestor; but, it is appropriately a word of limitation only, and he who would take by it as a word of purchase, must show clearly and incontestably, that it was used in that sense. Had the testator here, meant to provide against accident from the death of either of the principal objects of his bounty, it is reasonable to suppose he would, instead of leaving his meaning to conjecture, have said so in terms. He has not done so; and, the inference to be drawn from the use of a copulative, instead of a disjunctive, is too feeble to disinherit the heir. Judgment affirmed. [SUNBURY, JULY 3, 1829.] FISHER against TAYLOR and others. IN ERROR. Testator directed his executors to purchase a tract of land, to be conveyed to them, in trust for his son, wh was to have the rents, issues, and profits thereof, but the same was not to be liable to any debts contracted, or which might be contracted by his said son, at whose death, the land was to vest in the heirs of his body; and, if he should die without heirs of his body, then to vest in the right heirs of the testator. Held, that the son had not such an interest in the land as could be taken in execution, and sold for his debts. EJECTMENT in the Court of Common Pleas of Mifflin county, removed to this court by writ of error. Matthew Taylor, by his last will and testament, dated the 16th of July, 1821, directed as follows: "I will and direct, that my son, John Taylor, pay out of the land devised to him six hundred and fifty dollars; and that my son, Henry Taylor, pay out of the land devised to him, thirteen hundred and fifty dollars, to, and for the following use and purpose:-My executors herein after mentioned shall, within one year after my decease, purchase a tract of land, at the price of two thousand dollars, four hundred dollars to be paid in hand, and the residue to be paid in 2r 33 139 281 139 592 21 33 160 266 2 R 33 31 SC 162 (Fisher v. Taylor and others.) four equal annual payments; and, the tract of land so purchased, shall be conveyed to my executors in trust for my son, Sample Taylor, the said Sample to have the rents, issues, and profits thereof, but the same not to be liable to any debts contracted, or which may be contracted by the said Sample, and at the death of the said Sample, the tract of land aforesaid, to vest in the heirs of the body of the said Sample, in fee; and if the said Sample shall die without heirs of his body, then the tract of land aforesaid, to vest in my right heirs." The testator appointed his sons, John Taylor, and Henry Taylor, and his nephew, Samuel W. Taylor, his executors; and, letters testamentary were issued to them on the 20th of November, 1823. The executors, in pursuance of the said will, purchased, in the year 1824, of John Graham and wife, a tract of land, situate in Wayne township, Mifflin county, containing one hundred and eighteen acres, with a house, barn, and orchard thereon; for which a deed was made to the said executors, their heirs, and assigns, in trust, for Sample Taylor, to have the rents, issues, and profits, during life, but not subject to his debts; remainder to the heirs of his body, in fee; reversion to the heirs of Matthew Taylor. The plaintiff in error, who was plaintiff below, had a judgment in the Court of Common Pleas of Mifflin county of August Term, 1825, on which a Fieri Facias was issued, and levied, by his directions, on the life estate of the defendant, Sample Taylor, in this tract of land. By virtue of a Venditioni Exponas, to November Term, 1825, the estate thus levied upon, was sold by the sheriff of Mifflin county to the plaintiff, and a deed for the same was duly executed and acknowledged. The plaintiff thereupon brought an ejectment against the defendant, to recover the estate sold. and conveyed to him. In this action, Henry Taylor, John Taylor, and Samuel W. Taylor, executors of Matthew Taylor, deceased, came into court, and prayed to be admitted, and were admitted, as co-defendants. On the trial of the cause, the court charged the jury as follows:Burnside, President."The plaintiff's counsel contend, that Sample Taylor had a life estate in the premises, which could be sold and conveyed by the sheriff, and he let into possession to take the rents and profits of the estate during the life of Sample Taylor, and insists, 1. That a judgment is a lien on every possible interest which a debtor has in land. 2. That a lease is subject to a judgment. 3. That a trust estate is liable for debts, and that this devise is within the statute of uses, and is subject to all the incidents of any other estate for life. 4. That the limitation is inconsistent with the estate granted, and that it is subject to the debts of Sample Taylor. These among others embrace the arguments of the plaintiff; and, however generally correct his propositions are, this court deny their application to the case before us. Matthew Taylor had a right to devise his estate to whom, and in what manner he pleased. (Fisher v. Taylor and others.) He had a right to make a provision for his son, and such a provision as would not be subject to the claim of creditors; and, in the opinion of the court, by his will he has done so. The executors take the estate upon the special trust, to let Sample have the rents, issues, and profits for his life. They have a right to the occupation of the estate, to rent it, to have it farmed and worked, and to pay over the rents, issues, and profits to Sample-they may permit him to use it. This is not a use executed by the statute. Trust estates have been recognised by our own legislature; they are excepted out of the statute respecting joint tenancy. Trusts are often created for the best purposes: for the support of infants, the protection of females, and the maintenance of the unfortunate. This court deny the right of the plaintiff to recover; and, they instruct you, that the sheriff's sale did not devest the executors of Matthew Taylor of their legal right to use and occupy this estate, and to pay over the rents, issues, and profits, to Sample Taylor, and that the defendants are entitled by law to your verdict." The jury accordingly found for the defendants, and the court thereupon entered judgment. To reverse that judgment, the plaintiff sued out the present writ of error. The errors assigned were: "1. The COURT erred in charging the jury, that the estate of Sample Taylor, was not executed by the statute of uses. "2. The COURT erred in saying, that it was not subject to the claim of creditors. "3. The COURT erred in charging, that the executors of Matthew Taylor had a right to the occupation of the estate, to rent it, to have it farmed and worked, and pay over the rents and profits to Sumple Taylor. "4. The COURT erred in saying, that the executors of Matthew Taylor had the legal right to use and occupy the estate, and that the sheriff's sale did not devest them of it. "5. The COURT erred in denying the right of the plaintiff to recover." The cause was argued in this court by W. M. Hall and Blythe, for the plaintiff in error, who insisted that Sample Taylor had such an interest in the land in dispute, as might be taken in execution, and sold for his debts: That he was to take the profits of the estate, was in the actual enjoyment of it, and could have turned the trustees out if they had refused to permit him to take the rents and profits: That the estate was clearly within the statute of uses, by which the use was executed and turned into possession; and, that it was in the power of no one to change the incidents of an estate. To support their argument, they cited, Lessee of Humphreys v. Humphreys, 1 Yeates, 427. Hurst v. Lithgrow, 2 Yeates, 24 Burd v. Lessee of Dansdale, 2 Binn. 80, 91. Carkhuff v. Anderson, 3 Binn. 4. Richter v. Selin, 8 Serg. & Rawle, 440. Ely v. Beaumont, 5 Serg. & Rawle, 124. Stahle v. Spohn, 8 Serg. & Rawle, 317. Rob. (Fisher v. Taylor and others.) Dig. 404. 2 Bl. Com. 330, 333, 336. 2 Salk. 679. Fearn. 115. Co. Litt. 290, b. Jac. Law Dict. 370. 1 Cruise, 461. 1 Sm. L. 7. Pennock v. Hart, 8 Serg. & Rawle, 379. West v. West, 10 Serg. & Rawle, 448. 1 Inst. 223. 1 Cruise, 660. 2 Bl. Com. 157. M-Williams v. Nisley, 2 Serg. & Rawle, 513. Shaupe v. Shaupe, 12 Serg. & Rawle, 12. Banks and Potter, for the defendants in error, argued, that the deed to the executors of Matthew Taylor, vested in them as trustees, according to the directions of the will, the legal title to the property conveyed; the rents, issues, and profits to be applied to the support of the testator's son: That a man had a right to dispose of his property as he pleased, and it was the duty of the court to carry his dispositions into effect, according to his true intention, where that could be discovered, and was not inconsistent with the rules of law: That it was the plain and express intention of the testator in this instance, to make a provision for his son, which should not be taken away from him by any debts he might contract, and that there was no rule of law, which forbade such a disposition of a parent's estate. They cited, Ruston's Executors v. Ruston, 2 Dall. 244. Lessee of Findley v. Riddle, 3 Binn. 149. Adams on Eject. 81, 82. Pow. on Dev. 285. 1 Madd. Ch. 514, 559, 562. 1 Fonb. 16, 404. 1 Vern. 415. 1 Eq. Ab. 383. 2 Fonb. 18, in note. 1 P. Wms. 280. 1 Ves. 130, 238. 3 Munf. 399. 1 Cruise, 461, Sec. 12, 13, 19, 20, 23. The opinion of the court was delivered by SMITH, J.-The only question before the court below was, and it is the only question here, whether Sample Taylor had such an interest in the land mentioned in this ejectment, under the abovementioned will and deed, as is by law subject to the lien of a judgment, and such as may be sold by execution against him for the payment of his debts? There never has been a question, or doubt, as to the intention of the testator. He manifestly designed to secure to his son, Sample Taylor, the enjoyment of the rents, issues, and profits of the land, during his life, in such a manner, that they should not be subject to be sold for the payment of his debts; and, he constituted his executors special trustees, to carry that intention into effect. The Court of Common Pleas correctly decided, that this was not a case within the statute of uses. It was necessary that the executors should take the legal estate for the purposes of the trust, in order to give effect to the testator's intention; and, they were, therefore, properly held to be entitled to use and occupy the land, to let it, or to have it tilled and worked, so as to enable them to comply with the disposition of the testator, in regard to the application of the rents, issues, and profits to Sample Taylor. A different construction would make the beneficial interest, which the testator intended to provide for his son, subject to be sold for his debts, when he expressly declared, that it should not be so subject, |