16 Pa. 95 | Pa. | 1851
The opinion of the court was delivered April 21, by
The rule in Shelly’s case has been so repeatedly recognised as a feature of our law, that further discussion is precluded. In the recent case, Heilman v. Bouslaugh, 1 Harris 344, if not satisfactorily vindicated, it is, at least, shown to be a settled rule of property in Pennsylvania, not to be put aside but at the risk of unsettling titles, and the introduction of confusion and uncertainty. Indeed, our numerous concurring decisions on this point, if any effect is to be accorded to them, must terminate, in our courts, further speculation as to the original propriety of the rule, and confine us to the inquiry whether the terms used to express the disposition of an estate fall within its operation. In
The devise before us stands, I think, in this category. To say nothing of numerous. English cases, it is impossible to distinguish it, in principle, from our own deliberate determinations in Carter v. McMichael, 10 Ser. & R. 429; Paxson v. Lefferts, 3 Rawle 59, and the prior decisions on which they are based. It is true, that, in the first of these, the limitation was to the heirs male of the body of the first taker, and the heirs and assigns of such heirs male; from whence Chief Justice Tilghman deduced an argument favoring the application of the rule in Shelly’s ease. But the conclusion was not made to rest solely on this. A very important part of the argument was drawn from the fact, that unless an estate of inheritance was given to the first taker, the remainder limited over in fee simple must be defeated. And the latter condition was the governing reason in Paxson v. Lefferts, with a reference to the precedent case. That devise was almost, if not altogether, identical with the present. The land was given to the testator’s son Charles, during his natural life, and if he should leave lawful issue, then to them, their heirs- and assigns for ever; but for want of such lawful issue, over in fee. It will be observed, the only difference is in the employment of the words “lawful issue,” instead of “heirs of the body,” used in the first part of our disposing clause. But if there be a distinction, this difference is in favor of the construction claimed by the plaintiffs below, since
Indeed, it may be safely asserted that the words “if he shall leave issue,” or “in default of issue,” and the like, are uniformly construed to mean an indefinite failure of issue, unless there be something in the context to qualify the general expression, or the reference be expressly to persons then existing. As early as Wilde’s case, this doctrine was averred, and it is said that whenever the term “issue” is used in reference to persons not in esse, it is synonymous with the terms “heirs' of the body.” Nor is it enough, to avoid this consequence, that the person named as the source of inheritable blood had issue at the date of the devise, unless it appear such living issue was, particularly, in contemplation of the testator at the moment, as the commencement of an inheritable stock. Of this, Goodright v. White, 2 Bl. Rep. 100; Long v. Beaumont, 1 P. Wms. 229, and Bagshaw v. Spencer, 1 Ves. Sen’r 142, are usually cited as examples. They were devises to the heirs of the body or issue of persons known to the testator to be in full life, having children, and the questions were whether there was a sufficient designation of the persons to take ? From the very nature of the case, it was held the parties thus pointed to might take designatione personae, and as though they had been specifically named. It is scarcely necessary to add, this doctrine has no application in the instance before us, though the first Mordecai had a son living at the time of the devise. Had that son died, it cannot admit of doubt any subsequently born issue would have taken under this devise, as heir of the body and competent to carry on the succession by inheritable blood.
To the cases already noticed, I will only add Morris v. Le Gay, cited by Lord Kenyon in Denn v. Puckey, 5 D. & E. 324, and with approbation, in our own cases of Carter v. McMichael, and Paxson v. Lefferts. I introduce it, because it appears to me to be exactly alike, and decisive of the present. The devise was to A. for life, remainder to the heirs of the body of A. and their heirs, and if A. died without issue of her body, over. It was decided that A. took an estate-tail.
The adjudications I have referred to, and those upon which they are based, furnish an answer to the objection most prominently urged for the defendants below, that the superadded words, serving to limit a fee in the issue of the first taker, show the testator intended to constitute them the stock of a new descent as purchasers, and they are, therefore, not to be treated as branches of their own progenitors. It has long been settled that superadded words of limitation engrafted on words of procreation will not operate to turn these into words of purchase, unless the super-added word denote a different species of heirs from that described by the first words, thus showing an intent to break the ordinary
But it is urged upon us that as, in England, an intention to change the line of descent is sufficiently manifested wherever the superadded words import eventual distribution of the estate among several, as.if it be limited over as a tenancy in common, or to be divided equally among all the heirs of the first taker, — in Pennsylvania, since the abolition of the right of primogeniture, such a devise as we have here, must be taken as changing the descent; the superadded words, “and to their heirs for ever,” necessarily importing, not the heir in tail, who is generally the right heir in England, but all the lineal descendants of the prcepositus, who take as parceners with us, under the general title of heir. I confess, I was much struck with the view when it was first presented, and very much inclined to adopt it as consistent with reason. But further reflection has satisfied us it is inadmissible. In the first place, it frequently happens that, even in England, the right heirs of a deviser may be of persons entirely different from him who would alone take as heir in tail, and yet it has always been there held as essential, that to withdraw the devise from the power of the rule, distribution must be expressly contemplated, and shown to be so by some precise direction. Secondly, though in Findlay v. Riddle, 3 Bin. 139, Mr. Justice Yeates seemed much inclined to adopt the idea that, with us, a limitation to heirs general always imports distribution, and is therefore repugnant to the rule in Shelly’s case, it was not received in our subsequent cases, though expressly urged upon the attention of the court, where full scope was afforded for its operation, had it been thought tenable. In the last case of Heilman v. Bouslaugh, the reasoning of the chief justice is in direct repudiation of it. All this is conclusive that, in this State, a testator is to be regarded as speaking in reference to the common-law system of descent.
The exception taken to the admission in evidence of the deed from Joshua Morgan to the plaintiff below was but little urged. Though inoperative to bar the entail, it is, questionless, good to convey the grantor’s right of possession. A tenant in tail may convey his life estate, and surely an attempt to convey a larger interest, which fails from a merely technical objection, may carry such an estate as would pass without the omitted ceremony. As his beneficial right of present enjoyment may be sold under an execution, without affecting the future tenant in tail, Armstrong v. Dunager, 16 Ser. & R. 323; Elliot v. Pearsoll, 8 W. & Ser. 38,
Judgment affirmed.