parent that the order for supersedeas was improvidently granted. No other conclusion is possible in view of § 1007, Rev. Stat., making the allowance of a writ and the lodgment of the same in the office of the clerk within sixty days after the date of a judgment an essential prerequisite to the granting of a supersedeas. Western Construction Co. v. McGillis, 127 U. S. 776; Covington Stock Yards Co. v. Keith, 121 U. S. 248; Sage v. Central R. R. Co., 93 U. S. 412; Kitchen v. Randolph, 93 U. S. 86. It is, nevertheless, insisted, First, that this case is not within the rule, because as the Judiciary Act of 1891 (March 3, 1891, c. 517, 26 Stat. 826) by the sixth section allows one year for the prosecution of error from this court to the judgments of the Circuit Court of Appeals and in express terms fixes no period for the allowance of a supersedeas, therefore, as the supersedeas was allowed within the year, it was in time. This, however, ignores the provision of § 11 of the act of 1891, as follows: "And all provisions of law now in force regulating the methods and system of review, through appeals or writs of error, shall regulate the methods and system of appeals and writs of error provided for in this act in respect of the circuit courts of appeals, including all provisions for bonds or other securities to be required and taken on such appeals and writs of error, " Hudson v. Parker, 156 U. S. 277, 282. Nor would a different result arise from the concession argumentatively that from a consideration of the context of § 11 of the act of 1891 the passage which we have quoted should be restricted to writs of error from the Circuit Courts of Appeals to inferior courts and to appeals from such courts to the Circuit Courts of Appeals. Nothing is contained in the act of 1891 regulating the time when an appeal from a Circuit Court of Appeals to this court or a writ of error from this court to such courts must be taken in order to operate as a supersedeas. The general pro vision of Rev. Stat. § 1007 under the hypothesis stated would therefore be applicable. It thus results that the mistake in allowing the supersedeas in the case which is before us is equally demonstrated by the correct application of the act of 1891 as well as by yielding to the erroneous construction of that act which is pressed in argument. Second. After the entry of the judgment in the Circuit Court of Appeals a stay order was entered in that court to afford an opportunity of applying to this court for a writ of certiorari, and such application was made and refused. Upon this premise the argument is that as the writ of error was allowed and lodged with the clerk within sixty days after the refusal by this court of the petition for certiorari, therefore, even under the assumption that § 1007 applied, there was power to allow the supersedeas. But no power in this court to allow a certiorari under the act of 1891 exists in a case where there is authority to review the action of the lower court by error or appeal. This being true, it follows that the contention is that the granting of the stay order to enable a certiorari to be applied for operated to change the statutory time fixed for allowing a supersedeas on error or appeal, although such subject could not have been lawfully contemplated as being within the scope of the stay order. In other words, the argument comes to this, that the stay order embraced and controlled a subject to which it could not lawfully extend. And this consideration at once serves to mark the distinction between the operation of a stay order granted for the purposes of a pending application for rehearing, since the pending of a rehearing operates to prevent the judgment or decree from becoming final, for the purpose of error or appeal, until the application is disposed of. As it results that the supersedeas was improvidently allowed, our order must be and is, Supersedeas vacated. Argument for Appellant. 222 U.S. VOGT v. GRAFF AND VOGT. APPEAL FROM THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA. No. 73. Argued November 17, 1911.-Decided January 9, 1912. The rule in Shelley's case is a rule of property in the District of Columbia, and the question for this court to determine is not whether it has or has not a legal foundation, or is or is not a useful rule of property, but whether it applies to the case in controversy. Where the testator directs that on the sale of his real estate the proceeds be divided and paid over to his heirs at once, except the share of a specified heir which shall be paid to trustees to be by them invested, the income thereon to be paid to such heir, the principal to be paid to his heirs after his death, the application of the rule in Shelley's case would destroy the radical distinctions intended by the testator, and the rule does not apply. Notwithstanding the peremptory force of the rule in Shelley's case, where there are explanatory and qualifying expressions showing a clear intention of the testator to the contrary, the rule must yield and the intention prevail. Daniel v. Whartenby, 17 Wall. 639. A condition of the rule in Shelley's case is that the particular estate and the estate in remainder must be of the same quality, both legal or both equitable, and where the former is equitable and the latter is legal, the rule does not apply and the two estates do not merge. Quare: Whether in the case at bar the estate in remainder is legal or equitable. Quare: Whether the rule in Shelley's case is applicable to personal property. 33 App. D. C. 356, affirmed. THE facts, which involve the construction of a will made by a resident of the District of Columbia, are stated in the opinion. Mr. John C. Gittings, with whom Mr. Justin Morrill Chamberlin was on the brief, for appellant: Until the court below rendered the decision in this 222 U.S. Argument for Appellant. case, it was conceded that the "Rule in Shelley's Case" was applicable to personal property in this jurisdiction. Garth v. Baldwin, 1755; 2 Vesey Sr., Ch. Rep. 646. Horne v. Lyeth, 4 Harris and Johnson, 435, holds this case was binding authority, and it has ever since been followed in the Maryland courts. See also Warner v. Sprigg, 62 Maryland, 14, and Hughes v. Nicklas, 70 Maryland, 482; Engle v. Mades, 25 Wash. Law Rep. 220; Simms v. Georgetown College, 1 App. D. C. 79, 80. If the rule has any application to personal property at all, it has the same force and effect as when applied to real estate. If applied by analogy, it must be applied, of course, under the same circumstances and conditions; consequently it is a rule of law and not a rule of construction. Being a rule of law, it is inflexible and will necessarily override any intention of a testator to the contrary in those cases where it is applicable. Horne v. Lyeth, supra. There may be a class of cases involving executory trusts where courts have not applied the rule. But in the case at bar, by no possible torture of the testator's language can it be construed to read as an executory trust. Neves v. Scott, 9 How. 211; 2 Underhill on Wills. A mere direction to convey the legal title or to pay over a fund where the limitations of the trust are complete, does not alone make a trust executory. Rowan v. Chase, 94 U. S. 818; Cushing v. Blake, 30 N. J. Eq. 689, 670; Edgerton v. Lord Brownlaw, 4 H. L. C. 1210. The "Rule in Shelley's Case" must be applied in a court of equity to the same extent as in courts of law, when the trust estate is executed. Preston on Estates, 362; Ferne on Remainders, 157; Bale v. Coleman, 1 P. Williams, 142; Simms v. Georgetown College, supra. The very moment we attempt to treat the "Rule in Shelley's Case" as subservient to a testator's intention, we absolutely efface and obliterate it as a rule of law, and turn it into a mere rule of construction. If this can be Argument for Appellant. 222 U.S. done when the subject-matter is personalty, what analogy is there in its application to real estate? None. For authority for its decision the court below cites a case long since overruled on every point upon which it was decided, viz.: Bacon's Appeal, 57 Pa. St. 504, 514. See Grimes v. Shirk, 169 Pa. St. 174, 181; McCann v. Berkley, 204 Pa. St. 214; Shopley v. Diehl, 203 Pa. St. 566, 569. The rule of construction is that if technical words are used they must be given their primary legal meaning, unless there is something on the face of the will that shows not only that they were not so used by the testator, but will clearly show in what sense they were used. Daniel v. Whartenby, 17 Wall. 643; Van Grutten v. Foxwell, reported in Appeal Cases, L. Rept. (1897), 658, 684. Although the Chief Justice of the court below quotes the rule of construction laid down by this court in Daniel v. Whartenby, supra, he immediately thereafter ignores it. There are no inconsistent words in that paragraph of the devise in question, and there is a total absence of any qualifying words in that or any other paragraph which shows or tends in any manner to show that the testator used the word "heirs" in the sense of "children." The word "heirs" may or may not be appropriate; this would entirely depend upon the sense in which the testator used it. From the context of the will there is absolutely no ground for a court saying that the word "heirs" was not used by the testator in its primary technical sense. That the testator was a layman does not appear anywhere in the record, or whether he was learned in the law, as the record is silent upon that point, unless it be the will itself, which shows beyond question that it was prepared. by one skilled in legal lore, and unquestionably knew the legal difference between the words "heirs" and "children." When we find him using the word "heirs" as a designation of those who were to take the appellant's share after death, it can hardly be said that he meant to use the word |