37 Pa. 9 | Pa. | 1861
The opinion of the court was delivered, by
The words of the will of Robert Harris, out of which arises the controversy in this case, are as follows: “I give and bequeath to my daughter Elizabeth, wife of James Bones, the use and life estate in her own proper person (but without power to convey the same to any other person for any period or term), all my messuage, tenement, and lot or tract of land whereon she now resides with her husband, in the township of Brandywine, and county of Chester, which I purchased at sheriff’s sale as the property of William Christman, and containing fifty acres, be the same more or less — and at the decease of my said daughter Elizabeth, the said lot or tract of land and appurtenances, I hereby bequeath to such of her children or their heirs as may survive her, as tenants in common, that is, the child or children of any deceased child of hers shall hold the same interest and right that the deceased parent would have hold if living.” At the time when the will was made, Elizabeth Bones had several children, and all her children were born before the will was proved, and probably before the death of the testator. The fundamental question is, what estate did she take under this devise ? If more than a life estate, it must be by virtue of the rule in Shelly’s Case, and the effort of the appellant has been to establish that under that rule she took an estate tail.
The rule which existed long before the case that gave it its name, is thus stated by Lord Coke in 1 Co. 104 (a): “ When the ancestor, by any gift or conveyance, takes an estate of freehold, and in the same gift or conveyance an estate is limited either mediately or immediately to his heirs, in fee or in tail, always in such cases heirs are words of limitation of the estate, and not words of purchase.” It has been somewhat differently stated by Preston, in his treatise on Estates, page 263, and again differently by Hayes, in his treatise on Estates Tail, page 4, and still differently by Smith, in his work on Executory Interests, page 400 ;
The limitation of the remainder in the present case, however, is not to the heirs or heirs of the body of Elizabeth Bones, the first taker of the freehold, but to “such of her.children or their heirs as may survive her, as tenants in common; that is, the child or children of any deceased child of hers shall hold the same interest and right that the deceased parent would have held if living.” There is, therefore, no presumption that the remainder-men were intended to take as heirs, arising from the use of technical words of limitation. There is, indeed, a contrary presumption. The word children is not a word of limitation, but of personal description. In Burgar v. Bradford, 2 Atk. 222, Lord Hardwicke said, “ Children, in their natural import, are words of purchase, and not of limitation, unless it is to comply with the intention of the testator, when the words cannot talee effect in any other way.” Hayes also says (page 35), “But the words children, sons, &c., are properly descriptive of a particular class or generation of issue. They point not at heritable succession, but individual acquisition. Their effect differs in nothing from a designation of individuals by name, except that a devise to several ‘ nomination’ as tenants in common, fails as to the shares of those dying before the testator.” He adds, “ The rules of construction freely permit, however, the use of the words ‘heirs of the body,’ or ‘issue,’ in the limited sense, of children, and of the word children in the comprehensive sense of the words ‘heirs of the body,’ these rules, or rather the fundamental principle of legal interpretation, requiring only a clear explanation to justify a departure from the ordinary meaning, imposing on those who would translate the term, the onus of producing an express warrant under the hand of the author of the gift.” Admitting now, with Mr. Hayes, that the word “ children” may be construed to mean “heirs of the body,” yet there must be, as he says, an express warrant for this change of its legitimate meaning, under the hand of the author of the gift. The intention to use it as a word of limitation, contrary to its natural import, must be rendered clear by the words of the grantor or testator himself. Conjecture, doubt, or even equilibrium of apparent intention, will not suffice. The language of Mr. Justice Blackstone, in his celebrated argument in the case of Perrin v. Blake, is well worthy of notice. After stating that the question of the testator’s intent was not upon the quantity of estate
Besides, there are in this will provisions, which, in addition to the description of the remainder-men by the term children, show an intent that they shall not take as heirs of the tenant for life. The gift is to them distributively, as tenants in common, or to their heirs. Such a taking distributively as tenants in common, is altogether inconsistent with the children taking as heirs in tail of their mother, the devisee of the life estate. Certainly, always in England, and in this state, until the Act of 1833, if not since, estates tail generally descended, not according to our intestate
It is contended, however, that under the doctrine of Price v. Taylor, 4 Casey 95, estates tail descend under our intestate law of 1833, and hence, that the limitation to the children of the testator’s daughter and the children of her deceased children, to take as tenants in common, the grandchildren, what would have been the share of the deceased parent, was in accordance with our rules of lineal descent. From this it is argued that the direction that they should take distributively, is equivalent to a direction that they should take as heirs.
Price v. Taylor, however, is not to be regarded as a decision that estates tail are embraced within our Intestate Act of 1833. It contains, indeed, an intimation that it may be so, with some reasons for the supposition given by the learned judge who delivered the opinion. The suggestion is repeated by the same judge in Williams v. Leech, 4 Casey 89. To this suggestion we cannot assent. However just such descent may seem, however consonant it may be with the general tendency of our customs and laws, descent of such estates, according to the course of common law, had, up to 1833, been an established rule of property in this state; and such rules are not to be regarded as destroyed by statute, unless by express direction or necessary implication. There is no such direction or implication in the
Our Act of 1705 only regulates the descent of lands amongst the children, where the father is seised thereof, and might dispose of them by deed or will. It leaves other cases of descent asrthey were at common law. Then came the Act of 1794, a substitute for that of 1705, the language of which is, “ The remaining part of any lands, tenements, and hereditaments, and personal estate of any person deceased, not sold or disposed of by will, nor otherwise limited by marriage settlement, shall be divided and be enjoyed in manner following,” &c. It is obvious that it was intended to follow the preceding Act of 1705. It never was supposed that any provision was made for the descent of estates tail. They continued to descend as at common law, without question at least, until the Act of 1833. Ro one doubts this. The courts and the profession concurred in the opinion that estates tail and trusts were not within the purviews of the intestate laws: Jenks v. Backhouse, 1 Binn. 96; Lyle v. Richards, 9 S. & R. 354. When the Act of 1833 was passed, the former acts had received a settled judicial and professional construction. Ror did that act profess to include estates tail. Its language was evidently taken from that of the preceding statutes. The words are, “ The real and personal estates of a decedent remaining after the payment of debts and legal charges, and which shall not have been sold or disposed of by will, or otherwise limited by marriage settlement, shall be divided and enjoyed as follows.” It cannot be maintained that there is any substantial difference between these three acts in the particular now under consideration. They all point to property over which
The second reason assigned for the conjecture that estates tail may descend under the Act of 1833, is thus stated in Price v. Taylor: “ Our statute of wills, passed on the same day with the intestate law, and one of its supplements (May 6, 1844), provides for a lineal descent, in order to prevent a devise to a child, or to^ a brother or sister, from lapsing by the death of the devisee in the lifetime of the testator, and in such case the descent goes, according to our law of lineal descents, on the supposition that such is the testator’s intention, that is, on the principle of entailment until it vests.”
This provision in the statute of wills was taken from the Act of 1810, and therefore cannot be called in to aid in the construction of the intestate law of 1833. And it is observable that the provision of the act declaring that a devise to a child who dies before the testator, shall be good and available in favour of the issue of such child surviving, “with like effect as if such devisee had survived the testator,” is equally applicable to a devise to a child in tail. This seems, therefore, a very insufficient reason for holding that the legislature, in using the words of the Intestate Act of 1833, intended them in a very different sense from that in which words almost similar had always been understood before.
The other reasons given for the suggestion are such as grew out of the change of our customs and laws, and the policy of having our laws simple and homogeneous. Primogeniture, it is said, is no longer supported by our customs, and hence it is argued that we ought no longer to presume that lineal descent is
Admit that this was an exceptional custom, it was still a settled rule of property, and whatever may be our opinions as to the policy of its continuance, it could be changed only by the legislature, except at the expense of disturbing multitudes of titles. In inquiring what the legislature has done, we are aided but little by considerations of policy and symmetry. At last we are driven back to the language of the statute. There, and there only, has this rule of property been destroyed, if it be no longer in existence.
Holding, therefore, that estates tail are not embraced in our intestate law of 1833, full effect must be given to the words of distribution in this will. If the words “ or their heirs” are to be regarded as words of limitation of the estate given to the remainder-men, then they settle the question. That words of distribution, with words of limitation superadded, show that the remainder-men take not as heirs even, though described as such, but as a new root of succession, is too well established for controversy : Doe v. Lanning, 2 Burrows 1100; Right v. Creber, 5 B. & C. 866; 5 Man. & Grang. 628; Finley v. Riddle, 3 Bin. 139; Stump v. Findlay, 2 Rawle 168; Abbott v. Jenkins, 10 S. & R. 296. If, on the other hand, the words “ or their heirs” are to be regarded, as subsequently explained, to mean the child or children of deceased children, then there is nothing that looks to succession, nothing that looks beyond the individuals that might be in being at the death of Elizabeth Bones.
. The rule in Shelly’s Case is the law of Pennsylvania, but there is no reason why it should be applied more extensively than in the country from which it derived its birth. It often defeats the declared will of a testator, and frustrates his purpose of making provision for more than one generation of his family. Still it is to be enforced whenever it is truly applicable. But it has been held from Wild’s Case, 6 Coke, down to the present day, that when the devise of the remainder is not to “ heirs” or “ heirs of body,” but to “ children,” they take as a new stock, and not as heirs. In Goodtitle v. Herring, 1 East 164, there was a limitation for life, with a remainder to the “ heirs male of the body” of the tenant for life, severally, successively, one after another, as they and every of them should be in seniority of age and priority of birth, the elder of such sons and the heir male of his body being always preferred before the younger of such son or
The case was evidently an amicable one. There appears to have been no argument except in support of a tenancy in fee of the first taker, and the decision was by a bare majority of the court. Neither this case, nor that of Williams v. Leech, nor Naglee’s Appeal, in the particulars of which we have spoken, is
Enough has, however, been said, to show that under the will of Robert Harris, Elizabeth Bones took only an estate for life, and, consequently, that the decree of the Orphans’ Court was correct.
Woodward, J. — When the case of Williams & Wife v. Leech, 4 Casey 89, came into this court from the Nisi Prius, it was, after argument, referred to me to prepare the opinion.
I wrote a full opinion, affirming the decree at Nisi Prius; but, on consultation with the other members of the court, it was set aside, and my brother Lowrie ’s opinion was adopted, reversing the decree. I submitted in silence, as I supposed it was my duty to do, to the ruling which prevailed, not only in that particular ease, but in others which followed it, involving the same or similar questions.
It has now happened, however, in the mutations of the bench, that a majority reject that ruling, and again I submit, but with more satisfaction than before. Such is my regard for the doctrine of stare decisis, and such my confidence in the learning and ability of the judges who ruled Williams v. Leech, that I would stand by it still, and silence this vexed question if a majority of the court, as now constituted, felt themselves free to stand with me; but as they do not, I go with them to restore the old law, in the hope that the question will in this manner be effectually settled.