59 Pa. 43 | Pa. | 1868
The opinion of the court was delivered, May 27th 1868, by
If under the will of their father, Samuel Coulter, Jr., and Matthew Coulter took a fee tail in the land devised to them, confessedly the plaintiffs are not entitled to judgment upon the case stated. We think such was the estate given to them. The words of the will are these: “ I give and devise to my son Samuel Coulter, and my son Matthew Coulter, and the heirs of their bodies, all the plantation with all the appurtenances thereto, that I now live on.” Had the testator stopped here, no question could have been raised. The devise thus far is in the most apt words for the creation of an estate tail. But this clause is followed by a gift to the same sons of certain personal property, and the imposition of certain charges. The will then proceeds as fol
The estate then given by the testator to his sons Samuel and Matthew cannot be regarded as merely an estate for life. Equally clear is it that it was not a conditional fee. There are no words to make it such. On the contrary, the gift was to them and the heirs of their bodies, with cross-remainders. Nothing in the words “ if one of them dies wanting heirs of the body, the part that one owns falls to the other then except he be married” can enlarge the estate first given into a fee. The exception defeats the cross-remainder in the contingency stated; it can have no other effect. And if it could affect the estate first given to the son so dying, it could only be by converting, in case of his marriage, a defeasible fee tail into a fee tail indefeasible. The plaintiff in error has labored earnestly to prove that the ultimate limitation to “ the other legatees” is an executory devise, and not a contingent remainder. From this it is inferred that it was not destroyed by the deed of Samuel and Matthew Coulter dated November 2d 1854 made for the purpose of barring the estate tail. Neither the premises nor the inference can be conceded. That the ultimate limitation must take effect as a remainder rather than as an executory devise if it can, is a plain rule. Now the estate given to “ the other legatees” commences with an event which is in itself a regular determination of the estate tail, to wit, the death of the tenants in tail, without marriage, and of course without leaving issue then living. The two estates are therefore immediately connected, the latter dependent on the former. And as the ulterior limitation does not in any degree abridge or interfere with the estates tail, or accelerate their determination, it may well be considered a remainder ; not vested indeed, because dependent upon the event of the estates tail determining by the decease of the tenants in tail, leaving no issue living (they not having been married), but contingent on the expiration of the estates tail by that event.
It is not essential to this case, however, to determine whether the final devise to “ the other legatees” was a contingent remainder or an executory devise, for in either aspect it was cut off by the deed of November 2d 1854. Under our Act of Assembly of January 16th 1799, such a deed has the effect of a common recovery. Now, though a common recovery suffered by a tenant in fee does not bar executory devises and conditional limitations, the rule is different with a common recovery suffered by a tenant in tail: 1 Preston’s Abstracts 'of Title 400. Mr. Fearne lays down the principle thus: Fearne on Remainders 423-4: “ Though in general, an executory devise, even of lands of inheritance, cannot
So (1 Mod. 111), a gift to one in tail determinable on his nonpayment of 1001., remainder to B. in tail, first tenant in tail suffers a common recovery before the day of payment, and after-wards fails in the payment, yet because he was tenant in tail when he suffered the recovery, all is barred; Mr. Eearne adds: “ So if a tenant in tail be with a limitation so long as such a tree shall stand, a common recovery will bar that limitation.” Driver v. Edgar, above referred to, is a significant case. There lands were devised to Eve and to the heirs of her body lawfully begotten, but in case she should happen to die single, married or widow, without leaving children or child living at her decease, lawfully begotten, then the estate given her should be void as to the inheritance of heirs,' and of none effect, and the lands should go to the testator’s heir male. Eve died unmarried, having suffered a common recovery. It was contended that she was tenant for life only, but it was ruled that she was a tenant in tail, and that the recovery barred the ulterior limitations. These cases have a direct bearing upon the case before us. They establish that the estates given to the two sons, Samuel and Matthew Coulter, were estates tail and not estates for life, or conditional fees, and they are conclusive to the effect that the deed of November 2d 1854, equivalent to a common recovery, converted those estates into fees simple absolute. The plaintiffs then are not entitled to recover.
Judgment affirmed.