214 Pa. 440 | Pa. | 1906
Opinion by
The general scheme of the testator’s will was this : He gave to his wife his household furniture as long as she remained unmarried, one-tliird of his personal estate absolutely, and one-third of the income of his real estate for life. He left $9,000, in trust, the income to be paid to his wife as long as she remained unmarried and upon her marriage or death to be paid to his son Leon for life, and upon his decease the principal was to go to his children. In case his son died without leaving any child or issue of a deceased child, one-third of the principal was to go to charities, and two-thirds to the children of the testator’s brothers. The remainder of his estate was left to his son absolutely. The will was prepared by skillful counsel. The testator made two codicils, evidently without the aid of counsel. The first contains this provision: “ My wife Selina shall occupy the dwelling house No. 1711 Franklin street in the city of Philadelphia as long as she remains my widow, in case she marry or death it goes to my son Leon. I also want him to have a home in the premises, in case my son Leon die this property I give to the children of my brother William.” The second codicil written a year later is as follows: “I want my wife Selina Walker to reside in dwelling house No. 1711 Franklin street as long as remains my widow, in case she many or death, it will go to my son Leon J. Walker or his lawful heirs, if he should die without any lawful heirs it shall go to my brother William Walker’s children.”
Leon J. Walker died without descendants in the lifetime of his mother, leaving a will by which he devised his estate to strangers. Upon the death of his mother his devisees brought
The conclusion reached by the court is based on two propositions : (1) In the phrase “Leon J. Walker or his lawful heirs ” the word “ or ” is to be construed “ and ” ; (2) by “ lawful heirs ” the testator meant heirs of the body and the devise to Leon and the heirs of his body and, if he should die without lawful heirs, to remainder-men over, is a devise in fee tail enlarged by the act of 1855 into a fee simple. The word “ heirs ” in the phrase “ If he should die without lawful heirs ” must be construed to mean heirs of the body, since there was a gift over to collaterals who would have been lawful heirs. The second proposition may therefore be conceded. But why should “ or ” be read “ and ” in the phrase “ or his lawful heirs ” ? Certainly not in order, to give effect to the intention of the testator, which is perfectly clear, and no technical rule of construction requires it. No one can doubt that the testator intended that the children of his brother should take if, when .the prior estate ended by the death or remarriage of his wife, neither his son nor any “heir,” in the sense of descendant, of the son should be in existence. By the first codicil the son was given a fee simple in remainder, if then alive, upon the termination of the prior estate, and in the case of his death before the termination of this prior estate the house was given to the children of the brother William. The second codicil supplied an omission in the first to make any provisions for the heirs of the body of the son in case he did not survive his mother, and provides for the disposition of the house in the same manner that a portion of the trust fund of $9,000 is provided for in the body of the will. The plain intention of the testator, indicated by what he said in the second codicil and by the whole will, was to limit the estate not to his son and his heirs, but to his son or his heirs. The purpose was to substitute the “ heirs,” meaning children or issue, of the first taker, if the son should be dead leaving children or issue; if there
A devise to a man or his heirs, without more, has in many eases been construed as a devise to him and his heirs where such construction was necessary to give effect to a manifest intention or to supply a legal succession in the event of death. Of these cases Patterson v. Hawthorn, 12 S. & R. 112, and Muhlenberg’s Appeal, 103 Pa. 587, are examples. In this case there is a substitutionary devise to the children of the testator’s brother in the contingency of the death of the testator’s son without heirs of the body during the continuance of the particular estate, which would be defeated by construing “or” as “and,” The rule in Shelley’s case has no application, for the gift to the son is without limit as to duration, and under the act of 1833 words of inheritance are not required to pass the fee.
The phrase used by the testator, “ if he should die without any lawful heirs,” is the equivalent because of the context of “ in case, he should die without issue.” Where an absolute' estate is followed by these words, it is a settled principle of interpretation that they will be understood as referring to death without issue in the lifetime of the testator, if the gift is immediate ; or during the continuance of the life estate if it is not: and if the donee survives the testator or the continuance of the intervening estate, his interest becomes absolute and indefeasible. Conversely, if he does not so survive, the limitation over takes effect as a valid executory bequest or devise : McAlpin’s Estate, 211 Pa. 26. We conclude, therefore, that the estate to the son would have been indefeasible if he had survived his mother, irrespective of the act of 1855. Since he. did not survive her and left no issue, the limitation to the children of the testator’s brother became effective.
The judgment is reversed and judgment is now entered on the case stated for the defendants.
