Hill v. Hill, 74 Pa. 173

Hill v. Hill

74 Pa. 173 | Pa. | 1873

The opinion of the court was delivered, July 2d 1873, by

Sharswood, J. —

There can be no doubt that by the devise of the premises, without the limitation over in case she should die leaving no issue or child, Sarah Ann Hill took a fee simple. Without a resort to the ninth section of the Act of April 8th 1833, Pamph. L. 249, the words “ all the remainder of my estate” were quite enough to indicate the intention of the testator. The provisions for the division of the real estate between his daughters and the contingent charge upon it of a sum in gross might either of them support the same construction.

But the question here is what ought to be the legal effect of the words of the devise over: “ Should my daughter Sarah Ann Hill die, leaving no issue or child her share to fall back to my estate.” It is too well settled by a long train of authorities to be now a question, that a devise in fee, with a limitation over upon the death of the first taker, leaving no issue, reduces the estate in fee to an estate tail. Eichelberger v. Barnitz, 9 Watts *176447, is the leading case, and it has never been shaken. On the other hand, it is equally clear that if there is anything in the will which indicates the intention of the testator that this word “ issue” shall not mean “issue indefinitely” but children, then this construction does not apply. The rule has been well expressedéby Mr. Smith in his valuable Essay on Executory Interests : “ When the limitation over is to take effect, not on an indefinite failure of issue of the prior taker, but on a failure of children only, or on a failure of issue within a given time ; then the limitation over will not raise an estate tail by implication in the prior taker, but he will have a life estate with a limitation over of a springing interest, or a fee with a conditional limitation over as the case may be Smith on Ex. Int. 301; Taylor v. Taylor, 13 P. F. Smith 481. Had the words here been “ should my daughter Sarah Ann die leaving no issue ” the authority of Eichelberger v. Barnitz would have been decisive in favor of the construction which reduced his estate to an estate tail. Had the words been “leaving no child,” just as clearly it would have been a fee in her with an executory devise over. Now it is a canon of interpretation that no word is to be rejected to which a reasonable effect can be given. Upon the construction contended for in favor of an estate tail, the words “ or child ” must be rejected as superfluous, for “ child ” is included in the broad word “ issue,” which precedes it. But it is evident to us that the testator meant to use these two words as synonymous; to define what he meant by issue, he added “or child.” This is the most natural interpretation, and gives effect to every word. In Taylor v. Taylor, the general word “issue” was controlled by a subsequent clause in which speaking of the issue before mentioned, the testator said “ such issue shall enjoy their mother’s right,” which showed that by issue he meant children. We are therefore of opinion that Sarah Ann Hill did not take an estate tail, so as to be now entitled to alien it as a fee by the Act of April 27th 1855, Pamph. L. 368.

Judgment reversed, and now judgment for the defendant on the case stated.