Appeal, No. 414 | Pa. | May 28, 1913
Lead Opinion
Opinion by
It is clear that the testator intended to give his daughter hut a life estate in the property which she and her husband have contracted to sell to the appellant; but it is equally clear that, in giving her that estate, he intended to make her a source of inheritable succession, and she, therefore, took a fee under the unbending rule in Shelley’s Case as applied in this State. This is so plainly demonstrated in the opinion of the learned president judge of the court below that little, if anything, can be well added to it, and it will be very briefly supplemented.
The following is the substance of the clause in the will of Franklin S. Bickley by which he devised the real estate in controversy to his daughter, the appellee: “I give and devise to my said wife......my real estate situate on the north side of Penn street......in the City of Beading...... She to have and to hold the same for and during the term of her natural life, and to have the rents, issues and profits thereof during the same period. And immediately after the death of my said wife I give and devise the said real estate to my only child and daughter Susan Elizabeth for and during the term of her natural life, she to have the rents, issues and profits thereof during said period, and after the death of my said daughter the said real estate shall descend to and become vested in the children of my said daughter, should she have any, in fee simple, and in default of such children then such person or persons as she may by her last will and testament direct, — but in no event whatever shall the fee simple to the said real estate vest in my wife......or my daughter Susan Elizabeth during their life-time or the life-time of either of them.” No one familiar with the rule in Shelley’s Case would pretend that the appellee did not take an
It may be conceded that the testator intended to say in effect, by the concluding words of the devise to his
The touchstone, as unvarying as the needle to the pole, for the application of the rule in Shelley’s Case, is a clearly expressed intention by a grantor or devisor that the remaindermen are not to take from him, but from his grantee or devisee of a life estate to which he has attached an inheritable succession in his grantee or devisee. With this easily comprehended and constantly kept in mind, the rule in Shelley’s Case is simple and “ill deserves the epithets” chronically bestowed upon it. We need go no further in vindication of the judgment ..below, which is now affirmed.
Dissenting Opinion
dissenting:
We have uniformly held, as stated in the recent case of Wood v. Schoen, 216 Pa. 425" court="Pa." date_filed="1907-01-07" href="https://app.midpage.ai/document/wood-v-schoen-6248722?utm_source=webapp" opinion_id="6248722">216 Pa. 425, 428, that the purpose in construing a will is to ascertain the intention of the testator, so that it may be carried out in the disposition which he has made of his property. Technical rules of construction should only be resorted to and applied in the interpretation of a will when found necessary in determining the meaning of the instrument. In the present case there can be no doubt of the intention of the testator. In fact the majority opinion states that it is clear that the testator intended to give to his daughter but a life estate in the property. It is, however, held that she takes an estate in fee under the rule in Shelley’s Case. This rule frequently tends to defeat the intention of the testator, and is enforced only where the language used by him in disposing of his estate must' be construed under the rule. If his intention clearly appears by the language of the whole testament, Shelley’s rule cannot be applied to a part of the will so as to defeat the manifest intention as disclosed by the whole instrument. The intent of a testator is to be gathered from his entire will rather than from the terms of a particular devise which, regarded alone, might be inconsistent with his testamentary scheme as a whole: Dean v. Winton, 150 Pa. 227" court="Pa." date_filed="1892-07-13" href="https://app.midpage.ai/document/dean-v-winton-6240924?utm_source=webapp" opinion_id="6240924">150 Pa. 227, 232.
The dispositive part of the will is as follows: '“I give and devise to my said wife-Amelia my real estate...... She to have and to hold the same for and during the term of her natural life,...... And immediately after the death of my said wife I give and devise the said real estate to my only child and daughter Susan Elizabeth for and during the term of her natural life,...... and after the death of my said daughter the said real estate shall descend to and become vested’in the children of my said daughter, should she have any, in fee simple, but in no event whatever shall the fee simple to the said real estate vest in my wife Amelia or my
But the rule is silent until the intention of the testator is ascertained: Guthrie’s App., 37 Pa. 9" court="Pa." date_filed="1861-01-07" href="https://app.midpage.ai/document/guthries-appeal-6231257?utm_source=webapp" opinion_id="6231257">37 Pa. 9. In the case at bar the testator did not intend to make the daughter the source of inheritable succession. He intended what he said that in no event should she take a fee simple estate, and hence could not be the source of succession. He intended that the children of the daughter should take the real estate from him and not from her. It may be conceded that, under our cases, the daughter would have been the source of succession if the testator, in disposing of the property, had used only the words: “After the death of my said daughter the said real estate shall descend to and become vested in the children of my said daughter.” But those were not the only operative words of the devise. Other and emphatic language in the will interpreting and limiting the operation of those words were subsequently added by the testator. The scrivener understood the judicial construction of the clause just quoted and that it created a fee in the daughter; and it was to meet that interpretation and to prevent its consequence that he added immediately after the clause: “But in no event whatever shall the fee simple to the said real estate vest in my......daughter.” The two clauses must be read together, and when thus read the language of the devise, under the settled rules of construction, vests in the daughter a life estate in the property, and the remainder in fee in her children. “It may be,?’ says
There is another well-settled rule which the doctrine of the majority opinion contravenes and that is that an estate of inheritance in real estate given in a will may be reduced to a lesser estate if the subsequent language of the instrument unequivocally shows that such was the intention of the testator. Mr. Justice Strong, delivering the opinion in Sheets’s Est., 52 Pa. 257" court="Pa." date_filed="1866-05-15" href="https://app.midpage.ai/document/sheets-estate-6232698?utm_source=webapp" opinion_id="6232698">52 Pa. 257, 263, and quoting from 1 Jarman on Wills 436, says: “No principle is better settled than that if a testator in one part of his will give to a person an estate of inheritance of lands, or an absolute interest in personalty, and in subsequent passages unequivocally shows that he means the devisee or legatee to take a lesser interest only, the prior gift is restricted accordingly. Subsequent provisions will not avail to take from an estate previously given, qualities that the law regards as inseparable from it, as, for example, alienability; but they are operative to define the estate given, and to show that what without them might be a fee, was intended to be a lesser right.” This language is quoted and the principle approved in Snyder’s Appeal, 95 Pa. 174" court="Pa." date_filed="1880-10-04" href="https://app.midpage.ai/document/snyders-appeal-6236634?utm_source=webapp" opinion_id="6236634">95 Pa. 174; Good v. Fichthorn, 144 Pa. 287" court="None" date_filed="1891-10-05" href="https://app.midpage.ai/document/good-v-fichthorn-6353955?utm_source=webapp" opinion_id="6353955">144 Pa. 287; Krebs’s Est., 184 Pa. 222" court="Pa." date_filed="1898-01-03" href="https://app.midpage.ai/document/in-re-estate-of-krebs-6244572?utm_source=webapp" opinion_id="6244572">184 Pa. 222; Shower’s Est., 211 Pa. 297" court="Pa." date_filed="1905-03-27" href="https://app.midpage.ai/document/showers-estate-6247955?utm_source=webapp" opinion_id="6247955">211 Pa. 297.
The majority opinion construes the words “descend to” and “become vested in” as standing alone and not controlled or affected by the subsequent positive declaration that they shall not be interpreted, so as to create
I would reverse the judgment and enter judgment for the plaintiff on the case stated.
Dissenting Opinion
dissenting:
In view of the fact that the testator provides that, “In no event whatever shall the fee simple to the said real estate vest in..... .my daughter,” it seems to me that this is the same as though he had provided that the words “shall descend to and become vested in” should be construed to mean, “shall descend from me and go to” (Donovan v. Woodworth, 234 Pa. 507" court="Pa." date_filed="1912-01-02" href="https://app.midpage.ai/document/donovan-v-woodworth-6251040?utm_source=webapp" opinion_id="6251040">234 Pa. 507). If the will is thus read, no violence is done to the words used, no departure is made from the rule in Shelley’s Case, and the clear intent of the testator is given effect. I believe that the will can and should be so read, and for this reason I must dissent from the majority opinion.