Donnelly v. Turner

Robinson, J., delivered the opinion of the Court. The testator devised all his property to his wife for life or widowhood, and upon her death or marriage, he directed that the property should be equally divided between his two children, George and Eliza, their heirs and assigns for ever. Do the children take the property by descent or purchase is the question in this appeal ? It is said they take by descent, because the will gives to them the same estate, which they would have taken if there had been no devise of the property after the death of their mother.

Howr when one devises property to his children, it is but fair to presume, he intended they should take the property under the will. But in England, title by descent was favored by the Courts, first, because the lands in the ⁸⁴ hands of the heir-at-law by descent, was chargeable with the payment of the ancestor's debts, and then again because it favored the right of escheat upon the failure of heirs on the part of the ancestor, from whom the lands descended. On the other hand, land acquired by purchase, was not liable for debts, and upon the death of the owner, it descended first to the heirs on the paternal side, and upon failure of such heirs, then to the heirs on the part of the mother. Title by descent was considered the worthier title, and where the will gave to the devisee the same estate in quantity and quality, which he would have taken as heir-at-law, he was adjudged to take not under the will, hut by descent or operation of law.

But it is very plain the devisees in the will now before us do not take the same estate which they would have taken as heirs-at-law, because by the common law the eldest male heir took the