Berg v. Anderson
1872 Pa. LEXIS 208
Pa.
1872
Check Treatment

The opinion of the court was delivered, by

Williams, J.

— The question presented by the case stated is, whether the plaintiffs under the will of William Anderson, have a valid title to the lots which they sold and agreed to convey to the defendants. If, under the limitations in the will, the contingencies have happened upon which the title was to vest absolutely in the plaintiffs, and the limitation to them is good, then they are the owners of the lots, and capable of making a valid conveyance of them to the defendants. The testator, after providing among other things that his executors should invest the proceeds of the sale of his Allegheny City property, together with the proceeds of the sale of his personal property at interest in good unencumbered real estate security, worth at least one-third more than the amount invested therein, devised the money so invested, and the brick-house and six lots on the south side of the turnpike, in Lawreneeville, in which he then resided, to trustees, to have and to hold the same to the sole use and benefit of his wife during the term of her natural life; and, after the decease of his wife, to hold the same to and for the sole and separate use and benefit of his two nieces, Elizabeth Anderson and Margaret Eaton, to wit, one-half of the money invested as aforesaid (if any should remain after the maintenance of his wife and the payment of her funeral expenses), and the dwelling-house and two lots, eighty feet on the turnpike by one hundred and forty feet in depth, to the sole use of his said niece Elizabeth; and the remaining four lots, being one hundred and sixty feet on the turnpike by one hundred and forty .feet in depth, together with the remaining half of his money at interest, to the sole and separate use of his said niece Margaret. These provisions then follow : “ And at the death of either of my nieces, the portion held as above directed for her use, shall vest in her heirs absolutely for ever; and so also at the death of the survivor of my said nieces; and provided my said nieces, or either of them, should die without heirs, or their heirs, or the heirs of either of them, should all die in their minority and without issue, then, and in that case, the portion above devised to the use of such niece, or the portion of both, provided the contingency happens to both, shall vest absolutely in the heirs of my brothers and sister, viz. : John Anderson, Samuel Anderson and Martha Whittaker, whose heirs I am unable to name.”

It is evident that by “heirs,” the testator meant children or issue of his nieces. They could not die without heirs so long as the heirs of his brothers and sister, named in the will, survived; and it cannot be supposed that he was guilty of the absurdity of *91meaning that his devise over should depend on an event which could not happen without involving the extinction of its immediate objects. The word “heirs” must therefore be read in the sense of children or issue. But whether the nieces, under the limitations in the will, took each an estate for life, with contingent remainder in fee or in tail to her children or issue, or whether they took each an estate tail in the lots respectively devised to their use, is wholly immaterial. Whatever may have been the nature of the estate respectively limited to the nieces and “their heirs,” it was defeasible upon the death of the former without children or issue, or upon the death of the latter in their minority and without issue. It is admitted that all these contingencies occurred in the lifetime of the testator’s wife, to whom a precedent life estate was given. The devise, therefore, to the nieces and their “heirs” wholly failed, because there was no person in esse to take, under the limitation to them, at the termination of the previous life estate given to the wife. The only question in the case then is, whether the limitation over to the heirs of his brothers and sister is good, or whether it is so remote as to be void. If the limitation to them was upon an indefinite failure of issue, it infringed the rule against perpetuities and was consequently void. But if it was upon a definite failure of issue, it was valid. It is clear that an indefinite failure of issue could not have been intended. The estate in remainder was to go-over on the death of the nieces without heirs, that is without children or issue; or upon the death of the children in their minority and without issue. The limitation must, therefore, take effect, if at all, within twenty-one years after the death of the nieces; and the contingency, upon which the limitation depended, must necessarily happen within that time. The limitation, therefore, was not too remote, for the event upon which it was to take effect must occur within a definite period, that is, within a life or lives in - being, and twenty-one years afterwards. The case is clearly within the twelfth rule laid down by Mr. Smith for determining whether an indefinite failure of issue is meant, or merely a failure of issue within a certain time, in cases of a limitation over on a failure of issue. The rule is as follows: Where property is devised to a person and his heirs, with a devise over if he should die without leaving issue, or having such issue, such issue should die under twenty-one, without issue; it will appear, from the ninth of the foregoing rules, that the failure of issue which is meant, is a failure of issue of the children of the prior taker, at the death of such children under age; so that the limitation over, instead of being a remainder after an estate tail, or an executory limitation void for remoteness, is good as a conditional limitation, by way of executory devise, to take effect, at the farthest, within a life in being and twenty-one years from the death of the testator: Smith on Ex. Int. § 552, pp. 279-80.

*92It follows that under the limitations of the will in this case, the title to the lots in question, is absolutely vested in the plaintiffs as the children and heirs of the testator’s brothers, John and Samuel, and of his sister, Martha; and, therefore, the defendants (the plaintiffs in error) have no defence to the payment of the purchase-money arising from failure or defect of title.

Judgment affirmed.