| Pa. | Jan 5, 1874
The opinion of the court was delivered, January 5th 1874, by
It is an unquestioned rule that the intention of the testator shall govern in the construction of every devise, whenever that intention is clearly manifested, and is not inconsistent with the established principles of law. The intention, however, should not be ascertained by considering the language of the particular devise only, which is sought to be construed, but should be gathered from the whole instrument. The construction vgiven should be such as is consistent with the whole scheme of .the will. If a general intent, and a particular intent, are inconsistent with each other, the latter must yield to the former.
The question presented is, what estate had Jonathan Middleswarth, in the land in question, under the will of Moses Middleswarth? The court below held it to be an estate tail. The plaintiff contends it was a defeasible estate, terminable upon his dying without leaving legitimate issue living at the time of his death.
We will first seek to discover the intention of the testator. He left surviving him a widow, six married daughters, one grandchild, who was the child of a deceased son,-and one son. The son, Jonathan, was about forty-two years of age and unmarried.
The testator devised to his wife, certain real estate “ during the term of her widowhood,” and directed that upon her marriage or death it should be disposed of, and the proceeds arising from the sale thereof, be equally divided among the legitimate children of his deceased son, and the legitimate children that were or might be born of his six several daughters, share and share’ alike. He also bequeathed to his wife five hundred dollars, to be paid to her in ten annual instalments of fifty dollars each, and provided that if it should not all be paid in her lifetime, she might dispose of the same to whom she thought best. He directed these $500 to be paid by his son, Jonathan, out of the land devised - to him. He bequeathed to each of his six daughters $2500, to be paid in one year after his decease; to the Foreign Missionary Society, of the Presbyterian Church, $500, to be paid in ten annual instalments; and to two other persons, $100 each; to his son Jonathan he
As a general rule and standing alone, the language “ die without leaving any legitimate issue,” must be understood to mean issue indefinitely. That the estate created would, in such case, have been one in tail, is recognised by numerous English and American authorities. The principle is affirmed in Clark v. Baker et al., 3 S. & R. 470; Eichelberger v. Barnitz, 9 Watts 447" court="Pa." date_filed="1840-05-15" href="https://app.midpage.ai/document/eichelberger-v-barnitz-6312201?utm_source=webapp" opinion_id="6312201">9 Watts 447; Criley v. Chamberlain, 6 Casey 161; Taylor v. Taylor, 13 P. F. Smith 481.
Does the whole will establish a different intention ? It is well settled that a testator may restrain the generality of a devise by subsequent expressions, and convert that which otherwise would have been a fee simple, into an inferior interest; and more frequently in this mode than in any other is a particular estate given: Haldeman v. Haldeman, 4 Wright 29. The word “issue” in a will means primá; facie the same thing as “heirs of the body,” and in general is to be construed as a word of limitation; but this construction will give way, if there be on the face of the instrument sufficient to show that the words were to have a less extended meaning, and to be applied to children only, or to descendants of a particular class, or at a particular time: Taylor v. Taylor, supra.
Did the testator, when limiting the estate over, contemplate an indefinite failure of the issue of the first taker ? Or did he mean that the contingency upon which the devise-over is made to depend, was to happen, if at all, at the time of the death of Jonathan? If the former was the intention, Jonathan took an estate tail; but if the latter intent can reasonably be collected from the whole will, he took an estate in fee • simple, liable to be defeated upon the contingency of his dying without leaving issue at the time
The declaration that in case Jonathan died “ without leaving any legitimate issue, then” the real estate devised to him should be sold by the testator’s executors, and the proceeds be distributed by them, evidently points towards a definite failure of issue. It manifestly indicates that this failure will occur during the lifetime of some one of his executors named..
The land in which his wife had a limited estate, after the termination of that estate, was to be sold by his executors, and the proceeds thereof be distributed among the testator’s grandchildren. In like manner, upon the death of Jonathan without leaving legitimate issue, the land given to him was to be sold, and the proceeds be distributed by the testator’s executors; the residuary portion thereof to be divided among his grandchildren. It is very clear that the testator had the same beneficiaries in his mind in each case. All the authorities concur in saying that the devise over should be considered in determining whether the estate should vest on the death of the first taker. In distributing the proceeds of the land in which his wife had a limited use, he gave the names of the several parents of his grandchildren who were to take; thus fixing beyond any question that the recipients should be no further removed from him. In the latter distribution he does not unnecessarily repeat the names of the parents of his grandchildren, but evidently had the same pei’sons in view. This excludes the idea that the issue of Jonathan had reference to some remote period of the future. The intention to refer to a definite failure of issue is further shown by the fact that he had in his mind the contingency of Jonathan’s dying before all the legacies given to the testator’s daughters had become due, or had been paid out of the residuary estate devised for that purpose. Again, in for ever debarring from the benefit of any bequeath made “ any of my grandchildren who shall be guilty of having an illegitimate child, or is guilty of the sin of intemperance, or that do wickedly and irreverently profane Hod’s holy name,” and in giving it to those of them “whose life and conversation is free from reproach,” he manifestly had in his mind his immediate grandchildren, and excluded the idea of a more remote future, when the character and habits of his beneficiaries should be inquired into. This view is most fully sustained by Johnson v. Currin, 10 Barr 498. There the devise was to testator’s daughter, her heirs and assigns, and “ if any of my daughters die without heirs of their body, their part to be equally divided between the survivors of them, and my grandchildren. Held, an executory devise to the grandchildren and surviving daughters, and not a remainder which could be barred by the first taker. The cases of Lapsley v. Lapsley, 9 Barr 130, and Criley v. Chamberlain, supra, are urged as leading to a different conclusion.
An examination of the whole will satisfies us that Jonathan took a defeasible estate, which terminated at his death. The learned judge, therefore, 'erred in entering judgment in favor of the defendants on the reserved question.
Judgment reversed, and judgment entered in favor of the plaintiff on the question of law reserved.