51 Pa. 282 | Pa. | 1866
The opinion of the court was delivered, by
Andrew Lantz, Sr., on the 6th day of June 1853, made two deeds for separate parcels of real estate,
In the other of these deeds, being the one now before us, the grantees are described in the same manner, but the consideration expressed is a dollar and the “ natural love and affection he hath for his grandchildrenOn the trial of this cause, as-on the former, parol evidence was offered and rejected to explain the intention of the grantor, and it was admitted that Andrew Lantz, Jr., was living at the date of the deed; that he died June 13th 1862 ; -that at the date of' the deed he had four children living, viz., the defendants in this suit; and that the grantor knew that his son and these, grandchildren Avere living when he made the deed. It was also admitted that a daughter was born to AndreAV Lantz, Jr., after the date of the deed.
These are the circumstances under which two questions are presented for decision: 1st, whether this case is distinguishable from the former; and' 2d, if it is, whether this deed can take effect. _
We think the cases are distinguishable. In the deed in the former case there was nothing but the word heirs to individuate the grantees. It was impossible to say that the grandchildren would be the heirs of a living son. Andrew Lantz, Jr., might have survived all his children and left no heirs except collaterals. Nemo hceres est viventis. In popular language children are often called heirs, but the legal rule of construction, as applied in many cases to written instruments, is that the word “ heirs” is to be accepted in its technical or artistic sense, unless there be something in 'the context to interpret it differently. In the former case there Avas nothing in the context to control the legal meaning of the word, but here is 'the word “ grandchildren” standing in such a relation to the word heirs that it may be legitimately drawn into the construction. In this respect, therefore, the deeds are plainly distinguishable.
Then, in the next place, do these words sufficiently indicate the grantees to give the deed effect ? If it were a will instead of a deed that we were to construe, and these words stood in a similar relation, we would not hesitate to read heirs as meaning grandchildren. Innumerable cases, which may be found collected in Jarman or any of the compilers, would justify this mode of effectuating the intent of the instrument, but a stricter rule of construction is applied to deeds than wills AYill.bear. Still, however, it is
As long ago as 1800 it was declared in Hollingsworth v. Fry, 4 Dallas 347, that the great rule of interpretation, with respect to deeds and contracts, is to put such a construction upon them as will effectuate the intention of the parties, if such intention be consistent with the principles of law. That this rule is just as applicable to the word “ heirs” as to any other part of the deed, is proved by the observations of Lord Hardwicke in Bagshaw v. Spencer, 1 Ves. 147, where, in speaking of the distinction established in Shelly’s Case between this word as a word of limitation and a word of purchase, he says: “ Even in the- case of a deed, in construing which the same latitude is not allowed as in wills, they were taken as words of purchase to serve the intent, in Lisle v. Gray, Lord Raym. 315, and 2 Lev. 233. To this,” added his lordship, “ it was said there were several other words in that case, which I allow; but still it is an authority that they may at law, and upon a deed, be construed as words of purchase if the intent requires it. The other words are only a sign of the intent; and it is an unanswerable argument, that if some words showing the intent may turn it into a word of purchase, others may, there being no magic in any particular words.”
I have looked at the case of Lisle v. Gray in Levinz, and the other words alluded to were “ and so to all and every the heirs male of the body of Edward.” These words occurred after limiting an estate to Edward and his four sons, and the question was whether by these words Edward took an estate tail or whether he was only tenant for life, and the words “ and so to all and every the heirs male of the body of Edward,” shall be taken as if it had been to all and every other sons of Edward. The court held that Edward had only an estate for life by the manifest intent of the conveyance, “ which ought to be pursued where by any means it can,” and so they gave judgment for the plaintiff.
This case was cited with approbation by Lord Mansfield in Long v. Lamming, 2 Burr. 1100, where upon a devise to A. and the heirs of her body and to their heirs and assigns, he held that heirs of the body were descriptive of children and they took as purchasers. So in a devise to the right heirs of husband and wife, it was held in Nightingale v. Quartley, 1 T. R. 630, to be a devise to a child of both, and if no preceding estate be given to the father and mother, such child shall take as a purchaser. See also Archer’s Case, 1 Coke’s R. 163.
Now, when in this deed the grant is to the heirs of a son and to their heirs and assigns for ever, and the other word “ grandchildren” comes in as a designatio personarum — as the grantor’s definition of what he means by heirs — where is there room to
The reliance of the court below and of this court on the former occasion, was upon the case of Hall v. Leonard, 1 Pick. 27, a case which in its turn was rested upon what is laid down in Perkins, § 52, that a grant to the heirs of a person in being is void, as there are no persons in esse who can take under that description. If the learned judge of the Supreme Court of Massachusetts had noticed that this rule from Perkins was predicated of incorporeal interests, which only lie in grant and are not susceptible of livery, he would not have misled us into applying it to-a conveyance of land here in Pennsylvania, where registry stands instead of livery. Defining the word heirs in this deed as the grantor defined it, to mean grandchildren, there were persons in esse to take under that description, so that the final reason upon which the judgment in Hall v. Leonard rests, fails in this case. Besides, there were not in that case “ other words” to be a sign of the grantor’s intent, as there are here. We think, therefore, that if we followed that case properly on the former occasion, it would be a mistake to follow it in this instance.
We do not touch the question of evidence, both because it was well decided in the other case and because, upon our interpretation of the present deed, it does not arise.
The judgment is reversed, and a venire facias de novo is awarded.
