70 Pa. 70 | Pa. | 1871
The opinion of the court was delivered, November 9th 1871, by
The word “ issue” in a will means primá facie the same thing as “ heirs of the body,” and in general is to be construed as a word of limitation; but this construction will give way, if there be on the face of the instrument sufficient to show that the word was intended to have a less extended meaning and to be applied only to children, or to descendants of a particular class or at a particular time. The authorities in support of this general rule are cited in Taylor v. Taylor, 13 P. F. Smith 484, to which may be added Gast v. Baer, 12 P. F. Smith 35, and Angle v. Brosius, 7 Wright 187. “ The word ‘ issue,’ ” says Mr. Justice Strong, “is well adapted for a word of limitation, having much more aptitude for such an use than it has to designate the objects of a gift. In signification it very nearly resembles the technical phrase ‘heirs of the body,’ and indeed the two were used as synonyms in the statute de donis. Hence it has long been settled, that,when real estate is devised by one or more limitations in the same will to a person and his issue, the word issue will be construed as a word of limitation so as to give the ancestor an estate tail, unless there are expressions in the will unequivocally indicative of a contrary intention.” Even, therefore, though there should be an estate for life in express terms, and a devise to issue in remainder on the death of the tenant for life, either expressly or by implication only, as by a devise over for want or in default of issue, unless there is something to contradict un
It is not easy to perceive any difference between the words of the will in Paxson v. Lefferts and those of the will of Felix Laverty, now before us, which ought to be received as indicative of a different intention. There was there a devise for life; then if the devisee should leave lawful issue, to such issue, and for want of such issue, over. Here it is to Mary Ann for life; upon the happening of her death, to her lawful issue, if she should leave any — in default of such issue, over. There are no words of superadded limitation in the will of Felix Laverty as there was in that of John Knight; but this only makes the caso
Judgment affirmed.