78 N.W. 347 | N.D. | 1898
In this case we are charged with the duty of determining, 4s a matter of fact, what the law in the State of
The property here in controversy, being a mortgage upon land in this state, is personal property, under Rev. Codes, § § 4699, 4700. A mortgage, in this state, conveys no estate in the land. Jt simply .creates a lien thereon. This, then, being a gift by will of personal property, it follows that the validity and interpretation of the will must be governed by the laws of the testator’s domicile. Id. § 3738; Penfield v. Tower, 1 N. D. 216, 46 N. W. Rep. 413.
It is the defendant’s claim that, under the terms of the will of Charles Toles, Maria J. Barker took an absolute estate in said mortgage, under the celebrated rule in Shelly’s Case, — a rule announced by Lord Coke in 1581, and which became a part of our common law, and is in force in the states of this Union, unless modified or abrogated by statutory enactments. Concededly, it
It is this conceded permission to use the word “children” in this comprehensive sense that creates the doubt in this case. Immediately after the use of the word “children” the testator adds: “If my said daughter Maria J. shall die childless and without issue, then in that event I direct,” etc. Two positions are taken by appellant, and urged upon us with exhaustive ability and research. It is said that the testator, by the language used, referred to the death of Maria J. during the lifetime of the testator, and, as it is conceded that she survived the testator, the life estate vested in her, with remainder to her issue, and that the property could vest in these plaintiffs only upon an indefinite failure of issue of Maria J. Further, it is urged that, should we hold that the testator did not refer to the death of Maria J. in his lifetime, still the language used was equivalent to “issue” generally or “heirs of her body,” and imported an indefinite failure of issue. Either position would bring this case within the rule in Shelley’s Case.
The first point will not require extended notice. There is a class of cases which hold that in case of a devise to A. and his heirs, and, in case of his death without issue, then over to B., the death referred to is the death of A. in the lifetime of the testator. And
But did the testator, by the use of the words “die childless and without issue,” refer to an indefinite failure of issue, or a failure of issue at the date of the death of Maria J. ? If he intended an indefinite failure of issue, then the word “issue” was equivalent to “heirs of her body,” and, with the preceding life estate to Maria J., created in her an estate tail in case the devise was real estate, which by virtue of the Pennsylvania statute of April 27, 1855, was
When we seek for the intention of the testator in this case, we
In the light of the authorities cited, we are clear that the laws of Pennsylvania require us to hold that the testator, in this case, when he made the bequest in question to his daughter Maria J., referred to a failure of issue at her death. But there is another ground upon which we think the decision of the lower court can rest in equal security. The authorities so far cited have treated in the main of real estate. In this case, as we have seen, the gift was personal