McCann v. McCann, 197 Pa. 452

McCann v. McCann

197 Pa. 452

| Pa. | 1901

Opinion by

Mb,. Chieb Justice McCollum,

The question presented by the case stated is whether the plaintiff has a title in fee simple to the land to be conveyed by him in the article of agreement, or only a life estate therein under the devise by the will of his father, Patrick McCann, late of the city of Scranton, deceased. If he has a fee simple, the judgment entered by the court below must be sustained, but if he has a life estate only it must be reversed.

The item in the will under which the plaintiff claims title reads as follows: “ 7. I give and bequeath to my son, Michael, on his reaching the age of twenty-one years, a lot of land in the eighth ward, said city of Scranton, on Lackawanna avenue, being number eighteen (18) together with all improvements thereon, also a lot of land on Jefferson avenue, ninth ward, said city, being number eighteen, together with all improvements thereon,, to have and to hold the same for and during his natural life, and at his death, I give and bequeath said property to his next nearest blood relations, share and share alike.” There are other provisions of the will indicating a general scheme of disposition of the testators, which aid interpretation of the clause under consideration. The testator first makes provision for his wife. She is to have a life interest in all his property not otherwise disposed of in his will, and at her death said property is to go absolutely to his four living children and a deceased daughter, share and share alike, the children of the deceased daughter to receive their mother’s interest in equal portions, “ to have and to hold the same to them their heirs and assigns forever.” The fourth item of the will gives the homestead, with the household goods therein contained, to the wife for life, and at her death to the testator’s daughter Genevieve “on her reaching the age of twenty-one years, absolutely to herself, and her heirs and assigns forever.” *458The fifth, sixth, seventh and eighth items of the will make provision for the four living children of the testator by leaving them separate tracts of land for life with devise over as in the seventh item first above quoted. Similar provisions are made for the five grandchildren. Then comes the following provision : “ 15. In case any of my said children should die without issue, before my decease or before reaching the age at which they would inherit under this my will, then the interest of such child shall be divided equally among my surviving children ; the same rule shall also apply to my said grandchildren.” The testator further gives specific legacies to his wife for life, and to certain of his children absolutely, including $5,000 to his son, Frank, for the purpose of building him a house on one of the lots devised to him, and finally in the event of his having at his death, “ no blood relations ” the whole is left to a charity. The testator, in considering the disposition of his property, has divided it into distinct classes or estates, and made a different disposition of each. He has first carved out estates for life, and these estates in specified properties are given to the children and grandchildren. The life estates in the remaining properties, including the homestead, are then given to the widow. These estates with the specific legacies, are no doubt considered as provisions for the lives of the respective tenants. The remainders in the residuary estate and in the homestead, are given to the children and grandchildren in fee. The remainders in the other properties to “ the next nearest blood relations ” of the life tenants. The different phraseology used by the testator with so much care in disposing of the different estates in remainder is persuasive evidence that he did not mean the disposing words to be equivalent. The words themselves lead irresistibly to the same conclusion. While “ next nearest blood relations ” may be heirs, they are not necessarily all of the heirs. It is only in the event of their being all equally remote from their ancestor that the qualifying words “ next nearest ” would apply. It is clear from the authorities that in such case the rule in Shelley’s Case has no application.

Any form of words sufficient to show that the remainder is to go to those whom the law points out as the general or lineal heirs of the first taker will enlarge the estate for life of the first taker to an estate tail by implication: Yarnall’s Appeal, 70 Pa. *459342; Potts’s Appeal, 30 Pa. 170. It is well settled that the word “ issue ” in a will prima facie means “ heirs of the body ”; and in the absence of explanatory words showing that it was used in a restricted sense, it is to be construed as a word of limitation. But if there be on the face of the will sufficient to show that the word was intended to have a less extended meaning, and to be applied only to children or to descendants of a particular class at a particular time, it is to be construed as a word of purchase and not of limitation in order to effectuate the intention of the testator : Robins v. Quinliven, 79 Pa. 335, and cases there cited. In George v. Morgan, 16 Pa. 95, it is said that “ superadded words of limitation engrafted on words of procreation will not operate to turn these words into words of purchase unless the superadded words denote a different species of heirs from that described by the first words, thus showing an intent to break the ordinary line of descent from the first taker.” Accordingly in the case of Powell v. The Board of Domestic Missions, 49 Pa. 46, it was decided that a devise to one for life and to issue “ if one to him or her, his or her heirs or assigns forever, but if more, then to be equally divided amongst them, their heirs and assigns forever,” was not within the rule in Shelley’s Case. To the same effect is O’Rourke v. Sherwin, 156 Pa. 285. Iu Kuntzleman’s Estate, 136 Pa. 152, the devise in remainder after a life estate to a daughter, was to “ such person or persons as would be entitled to the same by the laws of the commonwealth of Pennsylvania ” if the daughter “survived her mother and husband” and died intestate. At page 152 Mr. Justice Clark says: “ The expression ‘ such person or persons as would be entitled to the same by the laws of the commonwealth of Pennsylvania,’ may perhaps be taken to signify heirs (Dodson v. Ball, 60 Pa. 492 ; Williams’s Appeal, 83 Pa. 377), and it may be assumed that the persons entitled under the words of the entire clause are such persons as at the daughter’s death are heirs at law, exclusive of her mother and her husband. But to bring the devise within the rule in Shelley’s Case, the limitation must be to the heirs in fee or in tail as a nomen collectivum for the whole line of inheritable blood. When the testator annexes words of explanation to heirs or heirs of the body as to heirs now living, etc., using the term as mere descriptio personaran!, or for the specific desig*460nation of individuals, a new inheritance is thereby grafted upon the heirs to whom the estate is given (4 Kent, Com. 221), and they will be assumed to take as purchasers.” The exclusion of the mother as an heir, it was held, took the case out of the operation of the rule in Shelley’s Case. Beilstein v. Beilstein, 194 Pa. 152, is not in conflict with this construction as there were no restrictive words as in this case.

We are of the opinion that Michael P. McCann has only a life estate in the lands described in the seventh paragraph of the testator’s will.

Judgment reversed.