5 Rawle 9 | Pa. | 1835
The opinion of the Court was now delivered by
who after stating the will and facts proceeded:— It is proper in the outset to inquire what estate Charlotte took under the will; and this will depend upon what was the intention of the testator, which is to be collected from the words of the will itself. Having once discovered his intention, it will be the duty of the Court to carry it into effect by their construction of the will, unless found to be repugnant to, or inconsistent with some ■established principle or rule of law.- By the terms of the will,1 the devise of the land to the daughter is limited to her expressly for life. This limitation, although express, would not perhaps be sufficient to take this devise out of the operation of the rule recognized and laid down in Shelly’s Case, seeing there is a remainder over limited by the will to her heir. Pauly v. Lowdall, Sty. 249. 273. Dubber v. Trollop, 8 Vin. 233, tit. Devise, U. a. pl. 13. Moor v. Parker, Skin. 559. Robinson v. Robinson, 1 Burr. 38. But to this remainder to her heir there is also superadded an express limitation for the life of such heir, which goes to show clearly that the testator did not intend by his will to give to.liis daughter a fee-simple estate in the land, but that she should have barely an estate for her life; and that her heir or heirs, whoever he, she, or they might happen to be at her' death, should take by purchase' a remainder for life also. Besides, if he had intended that his daughter should have the fee in the land, it was unnecessary and useless in him to have made a will for that purpose, because she would have taken it by operation of law without.
The word “ heir” then could not have been used here by the testator with a view to set forth the nature and quantum of estate intended to be given to his daughter, but for the purpose of describ-'
The remainder to the heir of the daughter being shown to be con
The distinction indeed, taken by Mr. Fearne, seems to be necessary, in order to give some effect to the will of the testator, otherwise in every case where he limits a particular estate for live, to his heir at law, with a contingent remainder over, without any ulterior vest
It was objected that the clause in the will, by which the remainder over is limited, is unintelligible and void for uncertainty. The words of it are, “ and then to be her only heir during its life.” A devise is never construed absolutely void for uncertainty, except from necessity; for if there be' a possibility of reducing it to a certainty it is good. 1 Powel on Devises, (by Jarman,) 370. Hence words in wills have been transposed, supplied and changed, in accord
But in regard to the further uncertainty in this clause, as to the person or persons intended to be described by the word “heir,” it appears to me, that it presents a question not altogether free from difficulty, whether the testator meant heir at common law, or heirs according to our acts of intestacy. There is nothing, however, in this which could affect the devise on the ground of uncertainty. It presents merely a question of construction, whether the one description of heirs or the other were intended by the testator, and would have to be decided by the court, if it were necessary to determine the cause.
In England, if lands be given either by deed or will to the heirs of a particular person, though they be customary lands, such as gavelkind or borough-english, the heir at common law, is presumed to be meant, unless special words are used to describe the customary heir: but if special words are used, the presumption fails, and then it is said that the customary heir shall be preferred, though the subject of the gift should be common-law-land. Co. Lit. 10 a, and Hargrave’s note, 4. Co. Lit. 24, Harg. note 3.
It may be that for the same reason that the heir at common law is presumed to be meant in England, that heirs according to our acts of Assembly, ought to be presumed to be meant here in such case. And it would seem, that upon this principle, it was decided in Connecticut in the case of Larabee v. Larabee, 1 Root, 555, that under a devise to a man, “ and the next male heir of his body,” all the sons of the devisee were entitled to take. But in our case it may b'e thought that the words “ only,” and “ its,” which have been
Judgment for the defendants.