70 Pa. 147 | Pa. | 1871
The opinion of the court was delivered, November 16th 1871, by
We have before us in the will of Jacob Wise another illustration of the remark of Lord Mansfield in Doe v.
One thing is too clear for argument — that Jacob Wise, by his will, devised his real estate, consisting of the tract of land upon • which he lived, to his two nephews John and Jacob, not as tenants in common, but to each one-half in severalty; one-half to John to be taken off the east end, and the other half to Jacob. When he says “ share and share alike,” that can only mean that the division shall be equal, though these words are unnecessary and out of place. The added clause “ to hold to themselves and their heirs,” by reference to the terms of the devise going before, could only mean “ each half in severalty to each nephew to hold to him and his heirs.” This would vest beyond all question a fee simple in each nephew in his several moiety.
What then is the effect of the words which follow: the survivors or survivor of them for ever?” If we give the word “ heirs” its technical sense, as we are bound by every principle of construction to do, unless there is unequivocal evidence of a contrary intention, these words cannot be applied to the word “heirs.” They are entirely insensible in such an application. There can be no survivorship among heirs. Though he uses the word “survivors” in the plural, he could only have meant survivorship between his nephews John and Jacob. But this would be a devise over after a fee — which could not stand as a remainder, because contrary to the rule of law that no remainder can be limited after a fee, nor as an executory devise because contrary to the rule against perpetuities. This would seem to be the most natural and reasonable solution of the difficulty arising upon the construction of this will.
But suppose we admit the contention of the plaintiff in error that the word “ heirs” by the mere force of these words “ survivors or survivor of them” is here to be construed to mean “children” — the only result would be to reduce the estate of Jacob to an estate tail. There is no estate for life given to him, either expressly or by implication. It is an immediate devise to
Judgment affirmed.