13 Pa. 344 | Pa. | 1850
The opinion of the court was delivered, by
The rule in Shelly’s case ill deserves the epithets bestowed on it in the argument. Though of feudal origin, it is not a relic of barbarism, or a part of the rubbish of the dark ages. It is part of a system; an artificial one, it is true, but still a system, and a complete one. The use of it, while fiefs were predominant, was to secure the fruits of the tenure, by preventing the ancestor from passing the estate to the heir, as a purchaser, through a chasm in the descent, disencumbered of the burthens incident to it as an heritance; but Mr. Hargrave, Mr. Justice Blackstone, Mr. Fearne, Chief Baron Gilbert, Lord Chancellor Parker, and Lord Mansfield, ascribe it to concomitant objects of more or less value at this day; among them, the unfettering of estates, by vesting the inheritance in the ancestor, and making it alienable a generation sooner than it would otherwise be. However that may be, it happily falls in with the current of our policy. By turning a limitation for life, with remainder to heirs of the body, into an estate tail, it is the hand-maid, not only of Taltarum’s case, but of our statute for barring entails by a deed acknowledged in court; and where the limitation is to heirs general, it cuts off what would otherwise be a contingent remainder, destructible only by a common recovery. In a masterly disquisition on the principles of expounding dispositions of real estate, Mr. Hayes, who has sounded the profoundest depths of the subject, is by no means clear that the rule ought to be abolished even by the legislature; and Mr. Hargrave shows, in one of his tracts, that to engraft purchase on descent, would produce an amphibious species of inheritance, and confound a settled distinction in the law of estates. It is admitted that the rule subverts a particular intention in, perhaps, every instance; for, as was said in Roe vs. Bedford, 4 Maule & Selw. 363, it is proof against even an express declaration that the heirs shall take as purchasers. But it is an intention which the law cannot indulge consistently with the testator’s general plan, and which is necessarily subordinate to it. It is an intention to create an inalienable estate tail in the first donee; and to invert the rule of interpretation, by making the general intention subservient to the particular one. A donor is no more competent to make tenancy for life a source of inheritable succession, than he is competent to create a perpetuity, or a new canon of descent. The rule is too intimately connected with the doctrine of estates, to be separated from it without breaking the ligaments of property. It prevails in Maryland, Georgia, Tennessee, as well as, perhaps, in most of the other states; and it prevailed in New York till it was abolished by statute. We have no such statute; and it has always been recognized by this court, as a rule of property.
A devisor who uses words of limitation in an improper sense,
No greater effect is attributable to the want of a limitation over, which evinces no more than an intent that the inheritance shall be in the particular tenant, if he shall have issue. But even where the question stands on a will, such a limitation has no other effect on the life estate than, in the absence of express words of procreation, to turn it into an estate tail. The operation of the rule in Shelly’s case, is just this: It gives the ancestor an estate for life, in the first instance, and, by force of the devise to his heirs, general or special, the inheritance also, by conferring the remainder on him, as the stock from which alone they can inherit, and the source alone from which their inheritable blood can- spring. Thus, a devise to one for life, with remainder to the heirs of his body, gives him an estate tail in possession by the merger of his life estate in the inheritance; but a devise to him for life, remainder to another for life, remainder to the heirs of the body of the first donee, gives him an estate for life in possession, and, by reason that the intermediate life estate prevents the merger, an estate tail in expectancy. This solution of what might else be a difficulty, is given by Mr. Hays, in a manner so simple and satisfactory as to leave no doubt of its accuracy. In the cases quoted, there was, not only an express limitation to heirs of the body, but an implication of the same limitation from a limitation over. But can the latter be more operative than the former ? Where there is an express limitation to heirs of the body, there is no room for an implied one. That it is supposed to fill up the measure of the intention, and to leave nothing to be supplied by intendments, is sustained by Higham vs. Baker, Cro. Eliz. 16; Bamfield vs. Popham, P. Wms, 54; Blackburn vs. Edgely, Id. 600; Attorney General vs. Sutton, Id. 760, and Glover vs. Clarches, cited in Higham vs. Baker. In its essential properties, therefore, Shelly’s case is the case before us; for could there be an implication from
The argument that the estate limited to the mother is equitable, and that the limitation to the heirs of her body is legal, is unfounded. A wife may purchase without her husband’s assent; and, although he may divest her estate by disagreeing to the purchase, the title is in her in the meantime. In this instance the husband did not disagree, and she took the legal estate as if she was a feme sole. Equitable limitations to married women are sometimes distinguished from legal limitations — certainly executory trusts are — but we have here an executed conveyance of a legal estate, which, as the husband did not disagree to it, vested the property in the wife subject to his power to divest it.
It is decisive against the alleged testamentary character of the instrument, that it is not absolutely a will. It must be exclusively so, or it is a deed; for there is no middle ground; and no will, as this instrument did, ever passed the property in the donor’s life time. The Attorney General vs. Jones, 3 Price, 368, is more than apocryphal. It was not only decided by a divided court, but one of the four judges declared, that had not the instrument contained a power of revocation, he would not have concurred. They would then have stood two to two, and the case, as a precedent, would have been neutralized. But it would be strange if every deed which contains such a power, should therefore be deemed a will. Mr. Jarman, the editor of Powell on Devises, and himself the author of a treatise on the subject, scarcely conceals his dissatisfaction at the decision. It would expunge a rudimental distinction from the law of property. Nor is the coonstruction of the deed to be nfluenced by any thing in the will that preceded it, which, being inoperative till the testator’s death, would be no evidence of intermediate intention, even if it might bear on the result. To show an actual intention contrary to the legal effect of the deed, would be to show nothing. The deed itself shows it; but it is an intention forbidden by the law.
It is the opinion of the court, that Esther Bouslaugh took an estate tail general, which, at her death, descended to Jacob Bouslaugh, the plaintiff, who is consequently entitled to recover.
Judgment affirmed.
Coulter and Burnside dissented.