49 Pa. 46 | Pa. | 1865
The opinion of the court was delivered by
The question in this case is, what estate Alexander Carson took under the will of Oliver Carson ? The words
Undoubtedly in a will the word “ issue” is regarded as primarily a word of limitation, and as synonymous with the technical words “heirs of the body.” Hence it is presumed that when a testator devises an estate for life, with a remainder to the issue of the devisee of that estate, he intends the remainder-men to take as heirs of the body by descent from their ancestor, rather than as purchasers, themselves the root of a new succession. This intent, however, is but a presumption. Even the strictly technical words “heirs,” or “heirs of the body,” may be shown by the context of the will to have been used as merely descriptive of persons, in which case they are regarded as words of purchase and not words of limitation. The intent of the testator to use them in such an abnormal sense, must, indeed, unequivocally appear, but when made thus to appear, it prevails over the legal presumption to the contrary arising from the use of words, which, unexplained, are words of limitation. In regard to this there is no doubt. And it is equally certain that by the same means the word “ issue” may be shown to have been used as a word of purchase, meaning children, grandchildren, &e. Being not strictly a technical word, never a word of limitation, except when used in a will, it requires even less to overcome the presumption that a limitation was intended by its use than is demanded to rebut the presumption arising from the use of the words “heirs of the body.” In Doe d. Cooper v. Collis, 4 T. R. 294, Lord Kenyon said, “In a will, ‘issue’ is either a word of purchase or of limitation, as will best answer the intention of the devisor, though in the case of a deed it is universally a word of purchase. In Backhouse v. Wells, 1 Eq. Ab. 184, p. 27,. cited in Fearne on Remainders *105, a devise to one for life only, and after his death to the issue male of his body, and to the heirs male of the bodies of such issue, was held to give but
That an estate tail in the devisee of a life interest is ordinarily implied from a gift over in default of his issue, or in the event of his leaving no issue, or dying without issue or for want of issue, must be admitted, if there be no express devise to the heirs of the body or issue. But where a gift over on such a contingency operates to enlarge an estate in the first taker, given expressly for life, into an estate tail, it is by presuming the gift of a remainder to his issue or the heirs of his .body. The will of the testator being plain that the devisees over shall not take, while there are in being heirs of the body or issue of the first taker, it is inferred his intent was that the estate remaining after the determination of the particular estate should be enjoyed by such heir or issue. Otherwise it would be in abeyance until an indefinite failure of issue might occur. Hence, the will is construed to be an express devise for life, with remainder to the
This subject is clearly presented in Hawkins on the Construction of Wills (an elementary treatise of great value, published in London in 1863, but not yet reprinted in this country). On page 192, he asserts the rule to be, that “When there is a devise to one for life with remainder to his issue as tenants in common, with a limitation to the heirs general of the issue, the issue take as purchasers in. fee.”' In .'support of this he refers to Slater v. Dangerfield, 16 M. & W. 273, Greenwood v. Rothwell, 5 M. & G. 628, and 6 Beav. 492. He then adds: “ The rule that words of limitation and distribution (together) convert issue into a word of purchase applies, although there be
These principles, based upon the rule that the whole intent of the testator is to be effectuated if possible, have been fully adopted in this state. They were asserted in Findlay v. Riddle, 3 Binn. 139, already referred to. That case is almost identical with the present, except that in the devise of the remainder, after the life estate, the testator employed the strictly technical word “heirs,” The testator gave to his son J. Findlay a plantation, “during his natural life,” and after his decease, if he should die leaving lawful issue, to his heirs as tenants in common, and their respective heirs and assigns for ever, but in case he should die without lawful issue, then over in fee. It was held, after a most elaborate argument, that John Findlay took only an estate for life. In that case, as in this, the intent of the testator to use a word of limitation, in an abnormal sense, as a word of purchase, was shown by words of distributive modification and by added words of limitation. There was nothing else, and there, as here, there was a devise over on failure of issue. There, as here, the argument was pressed that John Findlay, the first taker, had an estate tail by virtue of the ultimate devise over, if he died without leaving lawful issue; but the argument was repudiated, because the gift of the intermediate estate was to the heirs of John as tenants in common, and their respective heirs and assigns for ever. Upon this Judge Yeates remarked, “there is nothing incompatible or inconsistent with the general intent that John should hold this plantation during his life, and his children, if he had any, hold the same after his death in fee simple as tenants in common, but if he had none, that it should go over.” He added, “this materially contradistinguishes the will under consideration from the cases cited by the defendant’s counsel, in all of which, in order to give effect to the chief intention of the testator, it became indispensably necessary to hold that the first takers were vested with an estate in fee tail. It seems to me fully to answer them.” Findlay v. Riddle rules the present case. If the cases are distinguishable at all, there was
It was said on the argument that Findlay v. Riddle was overruled by Heilman v. Bouslaugh, 1 Harris 344, and by George v. Morgan, 4 Id. 95. But this is a mistake. Heilman v. Bouslaugh was the construction of a deed, not a will, and the conveyance was to a married woman “ during her natural life, and after her decease to the heirs of her body, and to them and their heirs and assigns for ever.” There were added words of limitation, but none of distributive enjoyment. Ch. J. Gibson admitted that in a will, words of limitation may be shown to have been used as words of purchase, though he denied that this can be shown by added words of inheritance alone (which is undoubtedly the law), and he denied that technical words of limitation in a deed can be controlled by anything whatever. His ruling was perfectly consistent in all respects with Findlay v. Riddle.
George v. Morgan was the construction of a will, in which all that was ruled was that a devise to A., to hold to him for and during his natural life, and after his decease to the heirs of his body lawfully begotten, and to their heirs for ever, and in default of such issue, then over, gave an estate tail to A. There was nothing to show that the words heirs of the body were used as words of purchase, except the added words of inheritance. There was no direction that they should take as tenants in common, or share and share alike. The case was rightly decided. It does not touch Findlay v. Riddle. A dictum of Judge Bell would seem to indicate that in his opinion the reasoning of Judge Gibson, in Heilman v. Bouslaugh, repudiated some of Judge Yeates’s reasoning, but this is a clear mistake. There was no reference in his opinion to Findlay v. Riddle, and the case before Judge Gibson called for none. It is argued, moreover, that the devise was, on.failure of John Findlay’s issue, to another son of the testator in full life. No reliance was placed upon that circumstance in the opinion of the court. And besides, in that respect the case was like the present. Here, the gift over, if Alexander Carson die without lawful issue, is for distribution among persons in full life when the will was made, persons whom the testator named.
We cannot doubt, therefore, that upon authority as well as principle, Alexander Carson must be held to have taken only an estate for life, under the will of his testator. Consequently, his deed, though intended to bar an entail, passed only a life estate to his grantee. According to the terms of the case stated, then, the judgment should have in favour of the defendant in the court below*
The judgment is reversed, and judgment is given for the defendant below in the case stated.