Lawrence v. Lawrence

105 Pa. 335 | Pa. | 1884

Mr. Justice Trunkey

delivered the opinion of the court, March 8, 1884.

In ordinary language, when a testator gives an estate to a person and his heirs, with a limitation over in case of his dying without issue, he means that the devisee shall retain the estate if he leaves issue surviving him, and not otherwise. But at common law the established interpretation of words of limitation on failure of issue, whether the terms be “if he die without issue,” “if he die without having issue,” “if he have no issue,” or “if he die before he has any issue,” in absence of all words making a different intent apparent, is, that they import a general indefinite failure of issue, and not a failure at the first taker’s death: 2 Jarman on Wills, *497. That this is the rule in Pennsylvania has not been doubted since the decision in Eichelberger v. Barnitz, 9 Watts, 447. There the testator directed that if his son Henry “should die without leaving any lawful issue, that then his full share ” should go to the testator’s other children; and it was held that Henry took a fee tail.

Not controverting the rule, the plaintiffs in error contend that in the light of the fact that at the date of the will of Clement Lawrence, Thomas D. Lawrence had children, and both William P. and Mordecai Lawrence had been married a number of years and were childless, the testator intended a failure of issue at a particular period, viz., the death of Mordecai Lawrence. The testator devised: 1. Real estate to William and his heirs; but if William should die. without leaving lawful issue he devised the same to Thomas, his heirs and assigns forever; 2. A tract of land to Thomas' and Mordecai, and their heirs, as tenants in common; but if Mordecai should die without leaving lawful issue, the moiety devised to him to go to Thomas, his heirs and assigns forever; 3. A tract of land to Clement Lawrence, his heirs and assigns forever; but if he should not live to the age of twenty-one years, the said tract to go to the oldest son then living of Thomas, subject to the same conditions. Then follows two devises of real estate; one to William, his heirs and assigns forever; one to Mordecai, his heirs and assigns forever; and eleven bequests of personal estate, and in each the words “ heirs and assigns ” are added to the name of the legatee. He intended in the bequests of personal property to give an absolute estate,' and that intent would have been as clearly expressed had he omitted the words “heirs and assigns.” Had he added the word “ forever,” it would in no wise have affected the character of the legacy. What he meant by the use of the words “heirs and assigns” in the bequests of personalty is a matter of conjecture. In the devises of real estate the words “ heirs and assigns forever ” are used in five instances, and the word “ heirs ” in three. That in each case, unless limited or conditioned by other words, an estate in fee simple was devised, is admitted. Conceding that the word “ heirs ” was appropriate, if not necessary, for devising a fee, how could the fee be qualified by the word “assigns” or words “assigns forever?” Neither of these words has a popular or technical meaning that could qualify a devise to a man and his heirs. The intendment in every devise is very plain. To Thomas the land is given in fee; to William and Mordecai lands are given in fee, with limitation over; to Clement the land is gi-ven in fee, subject to the contingency that if he should die before the age of majority, then over to another person. What the word “ assigns ” means in any of these devises is impossible to conceive. If any meaning was attached to it by the testator it was probably the same as where it is used in the bequests of personalty. He could not have intended less than a fee in the devise of one-half the tract to Thomas and his heirs — he intended no more when, if Mordecai should die without issue, he devised the other half to Thomas, his heirs and assigns forever. In a deed with covenants by the grantor, the word “ assigns ” may have significance, but in a devise, as in this will, none. It is urged that the phrase “ then and in that case ” appearing in each of the first three devises, shows that the testator used the word “ then ” in the devises to William and Mordecai, respectively, as referring to the time of their death, as in the case of Clement to the time of his full age. But in each case if the phrase were stricken out, the meaning would remain precisely the same, and, therefore, there is no particular sense in which it is used in one place that serves to define it in another. None of the devises are modified by the superabundance of words. If a word be used in a definite and ascertainable sense in one place in a will, that will aid in arriving at its meaning in another. Whether the will is artistic or not, if its meaning be plain it shall not be set aside for mere redundancy of words. The indiscriminate use of words and phrases in this will fails to show that the word “ heirs ” in any devise was used in other than its technical sense; nor does it show that the word issue was used in the sense of children, or as denoting a class of persons, nor is there anything to overcome the legal interpretation of the words of limitation on failure of issue.

This case is unlike Ingersoll’s Appeal, 86 Pa. St., 240, for there, as remarked by Justice Sha'rs’W'OOD, the words of limitation were found three times in the same paragraph; in the first two they were evidently used in the sense of a definite failure of issue, and the inference was irresistible that in the third the words were used in the same sense as before. Had the third not been defined by the two preceding, “ the law would have construed it to be an indefinite failure of issue.” In the present case the limitation is in the same words in the devises to William and Mordecai, and are found nowhere else in the will.

In Daley v. Koons, 90 Pa. St., 246, the devise was to M. for life, and after her death to her children in fee, and in the event of M. dying without issue, then to her brothers and sisters. The devise to M.’s children, preceding the words importing a failure of issue, was within the rule “ that words importing a failure of issue, following a devise to children in fee simple or fee tail, refer to the objects of that prior devise, and not to issue at large.” The devise was to M. for life, and then to her children in fee. This case and others cited by the counsel for plaintiff in error in the ingenious and able argument, illustrate various exceptions to the legal interpretation of the words “dying without issue,” where the meaning is shown by other'words in the will. But we are not convinced that they apply to the case in hand, because of the dissimilarity of the facts.

The deed by Mordeeai Lawrence to Lavinia J. Lawrence was for the expressed purpose of barring the estate tail, and although it was in trust .that the grantee should immediately convey to'the grantor, it was good for its special .purpose.. Such conveyances and re-conveyances, for nominal consideration, for the purpose of barring estates tail, have been upheld, indeed, their validity has been unquestioned. The conveyance was upon the expectancy, founded on oral agreement, of re-conveyance, and putting the trust in writing ought not to vitiate the transaction. The object of the statute is accomplished by the deed, acknowledged, entered upon the records of the court, and recorded, which acts meet the requisites for barring the estate tail; for that purpose the legal title passes, whether the trust is oral or written. When written, the grantee is beyond temptation to claim the land.

Judgment affirmed.