133 A. 510 | Pa. | 1926
Defendant appeals from a judgment against him, in a suit to recover, inter alia, the balance of the purchase price of certain real estate in the City of Williamsport, known as the Linck Block, which he had, in writing, agreed to buy.
Plaintiffs allege their title is derived from two sources: (1) Through Jacob H. Linck, who owned the property at the time of his death; and (2) Through a sheriff's sale on foreclosure of a mortgage, which was a lien on *321 it when he died. The statement of questions involved asks us to decide only two points: "Whether the fourth paragraph of the will of Jacob H. Linck violates the rule against perpetuities in force in Pennsylvania"; and, in case it does not, whether a marketable title was obtained by the sheriff's sale. Since we are clear the rule is violated, we need not consider the alternative question suggested.
That paragraph is as follows: "Fourth. I give, devise and bequeath unto my said four children, Edgar B. Linck, Charles V. Linck, James G. Linck and Nellie L. Linck, and to the survivor or survivors of them in equal proportions, all the rents, issues and profits whatsoever arising from and out of all that certain property . . . . . . known as the Linck Block, for the period of thirty-five years from the day of the date of my decease. During said period of thirty-five years I hereby will and direct that the said property known as the Linck Block shall not be sold, mortgaged or encumbered in any form or manner whatsoever. At the determination of the said period of thirty-five years, provided at that time there shall be no living issue of any of my said children, I give, devise and bequeath all the said property known as the Linck Block unto the said Edgar B. Linck, Charles V. Linck, James G. Linck and Nellie L. Linck, . . . . . . their heirs and assigns absolutely in fee simple forever; provided however, that if, at the termination of the period of thirty-five years as aforesaid, there shall be living lawful issue of any or all of my said children, then and in that case I give, devise and bequeath all the said property known as the Linck Block unto the said lawful issue as aforesaid, of all or any of my said children . . . . . . absolutely in fee simple forever."
By later provisions of the will, the residue of the estate is given absolutely to the same four children, expressly "excepting, however, the provisions made herein with respect to the property known as the Linck Block." They were also the only heirs at law of testator. Hence, *322 they had, under the will, an estate for thirty-five years, and an absolute remainder in fee, either by virtue of the residuary clause of the will, or (subject to the dower interest of the widow, who is also a plaintiff), under the intestate laws, if the gifts over, after the expiration of that period, were void, because offending the rule against perpetuities. Subsequently Nellie L. Linck conveyed all her interest in the property to two of the plaintiffs.
Neither argument nor authority should be needed for the purpose of showing that to sustain the will would result in violating that rule. We said in Ledwith v. Hurst,
We also said in Johnston's Estate,
The application of these principles to the present will makes the conclusion exceedingly plain. Testator's attempted limitation is for an absolute term of thirty-five years, without referring to any life or lives in being, and hence the remainder over is void under Johnston's Estate, supra; especially as, during that absolute term, he forbids alienation, mortgaging or otherwise encumbering the property: Lilley's Estate, supra. Moreover, he says that "At the determination of the said period of thirty-five years, providedat that time there shall be no living issue of any of my said children," the children themselves are to get the property in fee simple, but "if, at the termination of the period of thirty-five years as aforesaid, there shall be living lawful issue of any or all of my said children, then in that case" the property is given to such issue in fee. Those who are to take, if that provision is valid, cannot possibly be known until "the termination of the period of thirty-five years." Issue may be born to the children at any time during that term, and some of them, but it is not known who, if any, may survive to the end of the thirty-five years.
In his affidavit of defense, appellant averred that the said Nellie L. Linck had a daughter living, who would *324
be entitled to an interest in the property, if the gift over was valid and she survived until the expiration of the thirty-five-year period. He therefore suggested that a guardian for her possible interest should be appointed and made a party to the proceeding. It is also clear, though defendant did not allege that they too should be represented, that issue hereafter born to any of testator's children, within that period, may, subject to the same contingencies, also have such an interest. If the objection stated had been insisted on in the court below, there would have arisen a duty to stay the proceedings until representatives of all such interests had been made parties to the record, and given an opportunity to be heard: Hebron v. Magda,
The point was not insisted on, however. Defendant said, in his brief below, that "if the court shall decide that the will of Jacob H. Linck, so far as pertains to the disposition of the Linck Block under the fourth paragraph of the will, violates the rule against perpetuities, and is, therefore, null and void, it will be unnecessary to consider the effect of the sheriff's sale above referred to," which otherwise would have had to be considered, if that tribunal had been of opinion, under the will alone, that plaintiffs could not recover until representatives of those possible remaindermen, born and unborn, were made parties to the proceeding. We cannot hold that the court below erred in not considering an objection which appellant stipulated, at least indirectly, it need not consider: Armstrong Latta v. Philadelphia,
Moreover, as shown by the foregoing citation of the statement of the questions involved, this matter is neither raised in nor suggested by them. Rule 30 of this court says that "ordinarily no point will be considered [by us] which is not set forth in or necessarily suggested by" them, and that "This rule is to be considered in the highest degree mandatory, admitting of no exception." We have often called attention to its importance, and enforced it (see Kennedy v. Rothrock Co.,
The judgment of the court below is affirmed.