Mitchell v. Pittsburg, Fort Wayne & Chicago Ry.

165 Pa. 645 | Pa. | 1895

Opinion by

Mb. Chief Justice Steebett,

Although the devise to Amanda Stephens was made before the act of 1833 and without words of inheritance, yet, when read in connection with the introductory clause of James S. Stevenson’s will, there is a plain intent manifested in the first instance to give her an absolute estate. In McCullough v. Gilmore, 11 Pa. 370, where substantially the same expression was used, this court said: “ These words, and the like of them, are generally carried down into the corpus of the will, to show that the testator meant to dispose of his whole interest in a particular devise, unless words are used which plainly indicate an intent to limit it.” Numerous cases to the same effect are cited in Schriver v. Meyer,19 Pa. 87. The first taker is always the favorite object of testator’s bounty and as such entitled to the benefit of every implication.

There are no words used in the second paragraph of the will, containing the devise to Amanda, which indicate any intent to limit her estate. Had the will stopped there, the devise would unquestionably have been absolute. ' The following paragraph was not intended to operate by way of limitation, but was manifestly substitutionary in its character. The thought would very naturally occur to testator to make an alternative devise for the contingency of Amanda’s dying without issue, Biddle’s Ap., 28 Pa. 59; and this was in effect what was done. “In the event,” said testator, “of Amanda dying unmarried, or if married, dying without offspring by her husband, then these lots are to be sold, and the proceeds to be divided equally among the heirs of John Barber.” The word “ offspring ” here used is but a synonym for “ issue; ” and “ issue ” cannot be lawful without marriage. The devise is then in the first Instance to Amanda; and in the event of her dying without issue over to alternative beneficiaries. Dying without issue was thus made the contingency upon which the substituted beneficiaries could take: Coles v. Ayres, 156 Pa. 197. But death when? Where, as here, there is nothing to indicate an adverse intent, additional limitations dependent on no other contingency than is implied from the language, “ if any of them die,” or “ in case of death,” or the like, cannot be referred to the event whenever it may happen,—for that would be to give a forced construction to the words,—but must be construed as referring to death in association with some additional circumstance which makes it actually contingent. That circumstance is said to be naturally in regard to the time of happening, and that time, where, as here, the gift is immediate, is necessarity the death of the testator, there being no other period to which the death can refer: Caldwell v. Skilton, 18 Pa. 152.

This view is strengthened by the presumption that, in the absence of a fixed period, the power of sale was intended to be exercised at' a near, rather than a remote, period after testator’s death: Hill on Trustees, 474. The circumstances which gave rise to the creation of the power must necessarily change, and perhaps entirely disappear in the lapse of time. “ A power of sale without limit would doubtless,” said Mr. Justice Clark, in Wilkinson v. Buist, 124 Pa. 253, 261, “be bad, under the rule against perpetuities, and a testator will not be presumed to have intended anything so absurd.” The intended exercise of the power of sale given in this will is referable to the period either of (1) testator’s death, or (2) a definite, or (3) an indefinite failure of issue. The last may at once be dismissed as too remote; while, as between the other two periods, it is scarce within the range of probability that testator should have intended sale after a long life. The change of circumstances might be radical, whereas at testator’s death the change would in all probability be relatively small.

Another consideration of weight is that testator had in view living persons as substituted beneficiaries—the gift over is to the “ heirs,” and therefore the children, of John Barber who was living—and the natural inference is he intended them to take as such.

The suggestion that, because of Amanda Stephens’ extreme youth, testator could not have had in contemplation the contingency of her marriage and death without issue in his lifetime, is without merit. No presumption could arise from the fact of making a will that testator expected to die before she should attain a marriageable age. So far as appears from the record, he may have had an expectation of long life. But whatever his expectations, he expressly meets both aspects of the case by providing that “in the event of her dying unmarried, or if married, dying” without issue, the estate should go over. She might die in her infancy unmarried, or marry and die leaving no issue in his lifetime; and the gift over to the substituted donees would prevent lapse.

There is no reason for discrimination against her on account of age. She was the favorite object of the testator’s bounty; and having survived him, became thereupon seized of the absolute estate intended for her.

The judgment of the court below should therefore be affirmed,

Judgment affirmed.