was for the creditors, and there was no expectation by the payees or maker that the estate would pay a farthing beyond the dividend this fund would yield. The appellants' demand, after the application of this dividend to it, was worthless, and the parties knew it. It was because of this knowledge that the payees thought it was so generous and honorable in the maker to assume the debt of her dead husband.

It is clear that the appellants lost and the appellee acquired nothing by this transaction. It was a one-sided affair, and exclusively for the benefit of the former. But as a promise to pay the pre-existing debt of another person to his creditor requires a new consideration to support it, they can take nothing further by it. What they have received by virtue of it, they may retain, but the law will not help them to more. The cases cited to sustain the contention of the appellants differ essentially from this. In Leonard v. Duffin, 94 Pa. St. 218, the note was under seal, and the time for the payment of a debt then due was extended one year. In Bentley v. Lamb, 112 Pa. St. 480, 56 Am. Rep. 330, the due-bill was given in execution of an agreement to pay additional compensation for services rendered, and in view of the facts recited in the agreement, this court declined to infer that the services had been previously compensated in full. In Reily v. Dean, 36 Leg. Int. 304, the maker of the note volunteered to give it, to avoid protest, and to extend the time of payment of a note against the estate.

As it sufficiently appears in the testimony of the appellants that in this case there was no consideration for the promise sued upon, there was no question for the jury, and the learned judge was right in directing a verdict for the defendant. The judgment is affirmed.

CONSIDERATION, EFFECT OF Want of. A note not founded upon a cousideration is void: Dickinson v. Hall, 14 Pick. 217; 25 Am. Dec. 390, and note 392, 393. A guaranty is also void for want of a valid consideration to support it: Evansville N. Bank v. Kaufman, 93 N. Y. 273; 45 Am. Rep. 204. No promise to pay can be enforced unless founded upon a consideration: Utica etc. R. R. Co. v. Brinckerhoff, 21 Wend. 139; 34 Am. Dec. 220, and note. There must be a consideration to support every promise to pay the debt of another: Stewart v. Jerome, 71 Mich. 201; 15 Am. St. Rep. 252. Gratuitous promises cannot be enforced by suit, however worthy the objects intended to be promoted: Presbyterian Church v. Cooper, 112 N. Y. 517; 8 Am. St. Rep. 767; Mills County N. Bank v. Perry, 72 Iowa, 15; 2 Am. St. Rep. 228, and note.

OYSTER V. KNULL.

[137 PENNSYLVANIA STATE, 448.]

WILLS-WORDs Creating only Life Estate. — A devise to a son, of a farm "for his support, and if he should be spared to have family, I desire the above estate to go to the use of his children," creates only a life estate in the devisee. The word "children," as used, clearly indicates an intention by the testator to use it as a word of purchase, and not of limitation.

WILLS.-WORD "CHILDREN," IN WILL, IS GENERALLY WORD OF PURCHASE, and not of limitation; and while it may be used to signify heirs, or heirs of the body, it will not be so construed, unless the testator has employed other words indicative of an intention to use it as a word of limitation. WILLS-WORDS CREATING ONLY LIFE ESTATE. — In a devise to a son, of a farm "for his support, and if he should be spared to have family, I desire the above estate to go to the use of his children,” the words "for his support" indicate that a life estate is intended; and the words "I desire," as thus employed, are not merely precatory, but are as mandatory as if the words "I will and direct " had been used,

H. M. Graydon, for the appellant.

B. F. Etter, for the appellee.

STERRETT, J. The only question presented in this case stated is, whether the plaintiff, under his father's will, took a freehold of inheritance or only a life estate in the Mount Airy farm.

It appears that in June, 1865, the testator, Simon Oyster, made his will, and in less than two years thereafter died seised of certain real estate, leaving to survive him a widow, Margaretta Oyster, and five children, one of whom, the plaintiff, then about ten years old, has ever since remained unmarried and without children. The operative clause of his will is as follows:

"4. I give and bequeath to my son, Napoleon Kiever Oyster, my Mount Airy farm, containing 125 acres of land, with all the improvements thereon, in Susquehanna township, adjoining the city Harrisburg, with a three-story brick house, No. 3 in South Street and lot thereon, for his support, and if he should be spared to have family, I desire the above estate to go to use of his children, and ten shares of Harrisburg Bridge stock and twenty shares of my Harrisburg Bank for his use."

The learned president of the common pleas came to the conclusion that the testator's general intention was to give the plaintiff an estate in fee, and he accordingly entered judgment on the case, stated in his favor. In so doing we think there was error. It cannot be seriously doubted that the word

"children," in the clause above quoted, was used by the testator as a word of purchase, and not of limitation. That word in a will is primarily and generally a word of purchase; and while it may be used to signify "heirs," or "heirs of the body," it will not be so construed, unless the testator has employed other words indicative of an intention to use it as a word of limitation. There appears to be nothing in the will to indicate any such intention. The testator, it is true, used the words "heirs" and "children" interchangeably, but in doing so he evidently in each case meant "children." Nor can anything be predicated of the facts that plaintiff was only ten years of age when his father died, and has since remained unmarried and childless: Cote v. Von Bonnhorst, 41 Pa. St. 243.

The testator gave his Mount Airy farm, etc., to plaintiff "for his support," thereby indicating that a life estate was intended; and then declares: "If he should be spared to have family, I desire the above estate to go to use of his children." The word "desire," thus employed by the testator, is not merely precatory. It is as mandatory as if the words "I will," or "I order and direct," had been used: Fox's Appeal, 99 Pa. St. 382. Under another clause in the same will, the question heretofore arose whether the devisee therein took an estate in fee or for life only. In an opinion by the present chief justice, this court held that the devise to the first taker was for life only: Oyster v. Oyster, 100 Pa. St. 538; 45 Am. Rep. 388. The phraseology of that clause differs from that of the one now under consideration, but while that is so, and the language of the former is stronger than that of the latter, the difference appears to be in phraseology, rather than in meaning.

As already stated, the words "I desire," etc., as employed by the testator, are equivalent to the words "I will and direct." The clause in question may then be read thus: "I will that the above estate shall go to the use of his children." Coupling that with the preceding words of same clause, "for his support," the interest of plaintiff as first taker would appear to be limited to a life estate. While it cannot be said that the construction we have adopted is entirely free from doubt, we are of opinion that judgment on the case stated should be entered in favor of defendant.

Judgment reversed, and judgment on the case stated is now entered in favor of the defendant.

WILLS

CONSTRUCTION OF THE WORD "CHILDREN," AS USED IN A WILL — As to when the word "children," or a word of such character, as used in a will, must be construed as a word of purchase, and when as a word of limi tation, see Hughes v. Niklas, 70 Md. 484; 14 Am. St. Rep. 377, and note; Boykin v. Ancrum, 28 S. C. 486; 13 Am. St. Rep. 698, and note; Whitridge ▼. Williams, 71 Md. 105; 17 Am. St. Rep. 513; Long v. Paul, 127 Pa. St. 456; 14 Am. St. Rep. 862, and note; Carpenter v. Van Olinder, 127 IU. 42; 11 Am. St. Rep. 92, and note 99-107.

RICHARDS v. BUFFALO, NEW YORK, AND PHILADELPHIA RAILROAD COMPANY.

RAILROADS

[187 PENNSYLVANIA STATE, 624.]

Where

RIGHT OF WAY-EJECTMENT BY REAL OWNER railroad company relies only upon a grant of a right of way from an alleged owner in entering upon land to construct its road, the subsequent grantee of the real owner may maintain ejectment against the company; and upon the recovery of judgment, execution should be stayed a sufficient time to permit the company to obtain the right of way under its power of eminent domain.

ESTOPPEL RAILROADS. RIGHT OF WAY- EJECTMENT BY REAL OWNER. - Where a railroad company, at the time of procuring a grant of a right of way from an alleged owner, had knowledge that another was the true owner of the land, the latter may subsequently assert title and maintain ejectment against the company; nor is he estopped by the fact that he was present when the grant was made, and encouraged its execution by his words or his silence, and afterwards permitted the company to construct and operate its road for eleven years without objection.

S. R. Mason and James D. Hancock, for the appellant.

Q. A. Gordon, S. A. Miller, S. Griffith, and S. B. Griffith, for the appellees.

STERRETT, J. It was admitted that on and prior to February 2, 1866, Samuel Pew owned in fee a tract of land including the strip in controversy, and that under him, as a common source of title, both parties to this action of ejectment respectively claim and defend. The evidence shows that on that day Samuel Pew, by articles of agreement, transferred a part of said tract to his sons, Joseph V. and A. Preston Pew; that by sundry mesne conveyances a portion of said lastmentioned tract, including the land in controversy, became vested in Elizabeth Cousins, October 3, 1870; and that she was in possession thereof from that time until May 12, 1884, when she conveyed the same in fee to Anna R. Cousins, now Anna R. Richards, the beneficial plaintiff below. That evi

dence made a clear prima facie case in her favor, and entitled plaintiffs below to a verdict.

The railroad company, defendant, then gave in evidence a grant of right of way over the land in controversy to the New Castle and Franklin Railroad Company, its predecessor, executed by Samuel Pew, March 26, 1874, and also introduced testimony to prove what occurred at and about the time the right of way was granted. The character of that evidence is sufficiently indicated by the points for charge submitted by defendant below. Its purpose was to show that Elizabeth Cousins, from whom the beneficial plaintiff directly derived title, was estopped by her action at and about the time the right of way was executed by Samuel Pew, and that the beneficial plaintiff took title with knowledge of the facts constituting the alleged estoppel.

It clearly appears that the New Castle and Franklin Railroad Company, predecessor of defendant company, entered upon the land in controversy and constructed its road under and in pursuance of the grant aforesaid. There was no evidence tending to show that the land was appropriated for railroad purposes by either company by virtue of its charter powers, or otherwise than under the grant of right of way. In other words, unless defendant company had a right of possession under the alleged grant in connection with facts sufficient to constitute an estoppel, plaintiffs below were entitled to recover.

The court was requested to instruct the jury as follows:"1. That the plaintiffs' testimony having shown that Elizabeth Cousins was the owner of the land on which defendant's road was constructed at the time the same was appropriated by them for the purposes of their road, and for ten or eleven years thereafter, there can be no recovery in this case, for the reason that, as shown by the evidence, the defendant company entered upon the land in controversy and constructed its road without opposition from the owner; and this being an appropriation of the land, the right of action, if any existed, was in Elizabeth Cousins, and not in the plaintiffs.

"2. If the jury find from the evidence in the case that Elizabeth Cousins was the owner of the land in controversy at the time the same was appropriated by defendant company; that she was present when her father, Samuel Pew, settled the right of way with W. E. Loy, the agent of the company, and either authorized him to make said settlement, or afterwards,