5 Pa. Super. 537 | Pa. Super. Ct. | 1897
Opinion by
Under the will of his father, John Phillips, Sr., David Phillips took an estate in the land in controversy, which he devised to his sister, Margaret Hibbert. His only surviving child, Minnie Seybert, contends that under his father’s will he took but a life estate, and the remainder in fee vested in her. His sister contends that he took a fee tail, which, converted into a fee simple
The devise is in the following terms : “ I leave and bequeath to my four younger sons, Jonathan T. Phillips, David Phillips, Timothy Phillips and John Phillips, all the residue of my farm together with the coal scaffold at the river and lot belonging to it during their natural lifetime to be equally divided amongst them in quantity and quality and providing any of them dies without heirs the share of the deceased shall be divided amongst the surviving ones and at their death to be divided amongst their children and so on from one' generation to another.”
From the variety of purposes and modes of expression found in wills, it is measurably true that each will is in the nature of a law unto itself, and that the construction given to one is no absolute guide to the meaning of another. The import of particular phrases, and even the effect of technical language and words of art, are so largely controlled by the context, the situation of the parties, and the evident purpose of the testator in its entirety, that language which in one will may be held to indicate a certain intention may in another, from differences in the context and the attending, conditions, receive a different interpretation. Nevertheless, there are some principles, definitely fixed, and invariable in their application, which are to be followed in the construction of all wills. “ Where well considered and unimpeached adjudications have assigned to certain forms of disposition a determinate result, we are bound by it as an ascertained law of construction: ” George v. Morgan, 16 Pa. 95, Bell, J. It is through the application of the rules thus ascertained that the question arising in the present case is to be determined. The principles to be applied here relate to the limitation of the estate given to the first devisee, the devise over upon his death, and the interpretation of the language employed in defining or describing the estates devised. A brief review of the authorities will exhibit the bearing of these principles on the case in hand.
While a will is to be so construed as to carry out, as far as practicable, the testator’s intention, it not infrequently happens that the intention is defeated by the inexorable legal effect of the language employed. Usually this result is due to the rule
A devise for life may be enlarged to a fee simple by a limitation, upon the death of the devisee, to his heirs, or to a fee tail by a like limitation to the heirs of his body. Such limita.tion will arise not only from the use of the words “ heirs,” or “ heirs of the body,” but from any equivalent expression not restrained in effect by a different intent appearing from the will as a whole. Examples of these results are numerous.
Thus, a fee simple has been created by the following limitations upon the death of the life tenant: “ With remainder over to his heirs in fee: ” Doebler’s Appeal, 64 Pa. 9; “ To the lawful heirs of them the said A. and wife in fee simple: ” Auman v. Auman, 21 Pa. 343; “ To be equally divided among them the right heirs of my said niece: ” Physick’s Appeal, 50 Pa. 128 ; “ Reversible after her death to her children, if any surviv
A fee tail has been created by the following limitations upon the death of the life tenant: “ To my daughter R., and she shall have it as her own during her life, and then it is to come to the heirs of her body for their own use: ” Bender v. Fleurie, 2 Grant, 347; “ To W. my son, and to J. my son, and to their children after them: ” Blair v. Miller, 30 W. N. C. 486; “ When the children or legal heirs of the said W. come to the age of twenty-one years or more, then the one half of the said farm to belong to the children or legal heirs of the said W. forever: ” Sheeley v. Neidhammer, 182 Pa. 163; “To the heirs male of the body of my son E. lawfully begotten, and the heirs and assigns of such heirs or heir male forever: ” Carter v. McMichael, 10 S. & R. 429; “If he shall have lawful issue, then to them, their heirs and assigns forever: ” Paxson v. Lefferts, 3 R. 59; “To the heirs of his body lawfully begotten and to their heirs forever: ” George v. Morgan, 16 Pa. 95 ; “ To descend to his legitimate offspring forever: ” Allen v. Markle, 36 Pa. 117 ; “To descend and go to the child, and if children, share and share alike: ” Haldeman v. Haldeman, 40 Pa. 29; “ To his legal heirs, if he have any, (meaning heirs of the body), at his death: ” Bassett v. Hawk, 118 Pa. 94: “ At his death the use and occu
Except in the first three of the cases last cited, the limitation was followed by a devise over on failure of issue. This, of itself, is sufficient to create a fee tail in the first taker. “ An estate tail would be implied from the devise over, even if there were no gift of a remainder directly to the issue: ” Kay v. Scates, 37 Pa. 31, Strong, J. The devise over on default of issue implies that if there be issue they shall take. Whether the primary devise be in fee simple or for life, such a devise over converts it into a fee tail; cutting it down if a fee simple: Amelong v. Dorneyer, 16 S. & R. 323; Hackney v. Tracy, 137 Pa. 53; and enlarging it if a life estate. Among the limitations over on default or failure'of issue, with no intervening remainder given directly to the issue, by which a life estate has been enlarged to a fee tail, are the following: “ If she should die without lawful issue of her body, to be equally divided among my other three children: ” Mast and Monis’ Appeal, 2 W. N. C. 404: “ In case my granddaughter shall not leave issue at her death, I give and devise my said plantation to the children of my sister R.: ” Price v. Taylor, 28 Pa. 95; “ Upon the decease of either or any of my said sisters or nieces, without issue, (if with issue the issue inherit their shares) I grant and convey their portion of my estate for the use of my other sisters and children in fee: ” Potts’ Appeal, 30 Pa. 168; “ If he should die leaving lawful issue, to him, his heirs and assigns forever, but if he should die leaving no such lawful issue,” then over: Wynn v. Story, 38 Pa. 166. And “Where the remainder over, after dying without heirs, is limited to one who is or may be heir to the first devisee, this has always been determined to be an estate tail: ” Amelong v. Dorneyer, 16 S. & R. 323, Duncan, J. This relation between the first devisee and those taking by the devise over is a feature of nearly every case in which such a devise occurs.
Upon a devise over on failure of issue, or by expressions of like import, an indefinite failure is understood; those in remainder taking nothing until the entire line of issue is extinct. This is settled by numerous authorities referred to in part by
When the words “ heirs ” or “ heirs of the body ” are used, the presumption is that they are employed in their legal sense, and the intent to use them otherwise must unequivocally appear: Guthrie’s Appeal, 37 Pa. 9. When the word “ children ” is used to denote the entire line of lineal descent, it is to be understood as meaning “ heirs of the body.” It is never applied otherwise where “ evidently intended to define an entire line of descent: ” Haldeman v. Haldeman, 40 Pa. 29; Yarnall’s Appeal, 70 Pa. 335. “ Where a testator intends the estate to go to the whole body of persons in legal succession constituting in law the entire line of descent lineal, he evidently means the same thing as if he had said ‘ issue ’ or ‘ heirs of the body; ’ or if he intends it to go to the whole line of descent, lineal and collateral, he means the same thing as if he had used the term ‘ heirs,’ which as a word of art describes the same line of descent: ” Yarnall’s Appeal, supra, Agnew, J. “Whenever the words of the limitation can be fairly and justly interpreted to mean ‘ heirs,’ or ‘ heirs of .the body,’ an estate of inheritance will be presumed to have been intended by the testator. When
While a fee tail can no longer subsist, it may still be created, to be by force of the statute transformed into a fee simple. Whether a fee tail was created by the devise in the present case, depends on the effect of the primary limitation, and of the devise over. This is to be determined by the principles already referred to as governing the construction of the language employed; since nothing in the context, or the situation of the parties, requires a departure from the settled rules for its interpretation.
It is evident that the testator intended equality among the sons; equal shares in quantity and quality and equal estates. The estate devised to each was limited, first, to his own life; next, to his children, “ and so on from one generation to another;” and finally, on his death “without heirs,” to the survivors. The shares given directly, and those passing by the devise over, are alike thus limited to the children. The language of this limitation embraces the entire line of descent or lineal succession to the remotest generation. The intention that the estate should descend from the sons to their lineal heirs, as- long as the line should endure, is clearly apparent. “ This being the intént of the testator, it is immaterial whether he describes the line of descent by a word of art, or by a periphrasis, meaning the same thing : ” Yarnall’s Appeal, supra, Agnew, J. This intention can be carried out only through estates tail in the sons. Nothing but the whole line of issue, the heirs of the body, answers the testator’s description of those who are to take by this limitation. Nothing in the situation of the par
Next as to the devise over to the surviving brothers. Here, as in Wall v. Maguire, Moody v. Snell, and other cases cited on this point, since none of the sons could die without heirs leaving a brother surviving, the devise over on dying “without heirs ” is in legal effect a dying without issue, or heirs of the body, and thus creates a fee tail. The failure in contemplation is unquestionably an indefinite failure; not until the line of a son, “from one generation to another,” is extinct, do the survivors take. In this aspect of the question it is immaterial how the limitation to the children of the testator’s sons is to be construed. The devise over, whether with or without an intermediate estate given to the issue of the first taker, enlarges his life estate to a fee tail. Further, the devise over is to those who would take as heirs of the first devisee, and this has always been held to create an estate tail: Amelong v. Dorneyer, supra.
Thus, features rvhich are severally sufficient to enlarge a life estate to a fee tail are here concurrent; and upon the principles settled by all the authorities, the estate devised to David Phillips must be pronounced a fee tail, which the statute converted into a fee simple. His devise to Margaret Hibbert passed a fee simple, and the court below should have directed a verdict for the defendant.
Judgment reversed.