| Pa. | Oct 4, 1880
delivered the opinion of the court,
The testator, George A. Snyder, directed all his real estate to be sold. The proceeds, together with his personal property, constituted the estate of which he disposed. It was, of course, all personal estate. Subject to a provision in favor of his widow during her life, he gave the whole of it in equal shares to his six sons, a daughter and a grandson, Allen S. Hummel, the child of a deceased daughter. The will then provides as follows: “ And in case my said grandson, Allen Hummel, shall at any time die without issue I then give and bequeath the bequest of him, the said
No question was raised before the auditor or in the Orphans’ Court as to any difference between the principal sum of the legacy and its increment of interest after the death of George A. Snyder.
The former was clearly subject to the provisions of the will under which it was derived, but the latter was the absolute property of the ward and must be disposed of as his in the distribution of his estate, unaffected by the will of his grandfather. The entire fund was awarded by the auditor and court below to John Hummel upon the ground that the limitation over to the other legatee named in the will, being upon an indefinite failure of issue, was void, and the interest of Allen S. ITummel in the bequest to him was absolute and must pass to his father as his distributee. Was this ruling correct ? That depends upon various considerations.
There is no doubt that in devises of real estate, as a general rule, a limitation over upon an indefinite failure of issue of- the devisee creates an estate- tail which under our Act of 1855 becomes a fee simple, and, if the estate of the first taker is a fee, the limitation is void for remoteness. In the present case the subject-matter of the contention is personal estate exclusively.. It has for a very long time been held that in bequests of personal estate the rule of construction upon a limitation over on a dying without issue is quite different from the rule which prevails in devises of real estate upon the same kind of limitation. In the case of Pinbury v. Elkin, 1 P. Williams 563, the lord chancellor said “ that the words ‘ dying without issue’ had several senses; as, first, a legal sense when there was a failure of issue of a tenant in tail so as to entitle the remainderman or reversioner to a formedon in remainder or reverter, which is whenever there is a failure of issue of the body of tenant in tail. Secondly. Another sense of dying without issue was, if the
In Hughes v. Sayer, 1 P. Williams 534, it was held that a bequest of personal estate to A. and. B., and if either die without children then to the survivor, and if both should die without children, then to the children of the testator’s other brothers and sisters,was a good limitation over to the substituted legatees. The lord chancellor held that “the words ‘dying without children’ must be taken to be children living at the death of the party. For that it could not be taken in the other sense, that is whenever there should be a failure of issue, because the immediate limitation over was to the surviving devisee, and it was not probable that if either of the devisees should die leaving issue the survivor should live so long as to see a failure of issue, which in notion of law was such a limitation as might endure for ever.”
In both the foregoing cases the limitation over was held to be good upon the ground that the testator must have intended the words “dying without issue” to mean not an indefinite- failure of issue, but a failure of issue living at the death of the first taker. And the intention of the testator was inferred from the very words of the bequest, and not from other provisions of the will.
In the case of Forth v. Chapman, 1 P. Williams 666, the lord chancellor said “ that the reason why a devise of a freehold to one for life, and if he die without issue, then to another, is determined to be an estate tail, is in favor of the issue that such may have it, and the intent take place; but that there is the plainest difference
The doctrine of these cases has been repeatedly recognised and enforced in Pennsylvania. Thus in Clark v. Baker, 3 S. & R. 479, this court, Tilghman, C. J., said: “These words without leaving issue applied to personal estate, have been held to mean issue living at the death of the person to whom the property is given in the first instance. But not so with regard to land. This is the distinction taken in the case of Forth v. Chapman, 1 P. Williams 667, and it is well founded, because it carries into effect the intention of the testator. It would answer no purpose to understand issue indefinitely, in the case of personal property, because the law would not permit that issue to take. But it answers the best purpose in case of real property, because the issue may take accordingly.”
In Hopkins v. Jones, 2 Barr 71, it.was held that “the words ‘ die without lawful issue’ are to be construed, in case of personal estate, to mean ‘ die without leaving lawful issue where that corresponds with the testator’s intent.’ ”
In Seibert v. Butz, 9 Watts 494, it was held by Gibson, C. J.: “ There is, perhaps, no case in which the limitation over of personal estate, after an indefinite dying without issue, whether the first limitation were indefinite or expressly for life has ex vi termini been confined to a dying without issue at the time of the death; but the courts have seized with avidity on any circumstance, however trivial, denoting an intent to fix the contingency at that period.” The circumstance seized upon in that case was that the limitation over was upon the legatee’s dying “without heirs or testament.” The court held that though there might be “an indefinite dying without issue, there can be no indefinite dying without a will,” and they therefore construed the language to mean .a dying without heirs living at the decease of the legatee, upon the ground that such must have been the intent of the testator.
In the case of Eichelberger v. Barnitz, 9 Watts 450, the leading case in Pennsylvania declaring the general rule in cases of real estate, the exceptions to it were also stated as follows: “ The exceptions to the application of the general rules are either in cases of personal estate in which the construction is more liberal in favor of executory devises ; or when the time at which the devise over is to take effect is expressly or impliedly limited to a particular period
In Sheetz’s Appeal, 2 P. F. Smith 257, the testator gave his real and personal estate to his children by name in equal shares, but coupled with a direction that the executoi’s should invest the property so far as it should be converted into money, and the interest and rents should be paid to the children during their lives, and after their deaths the principal to their children. There was a limitation over in these words, “ Provided, however, that if any of my said children should die without issue, the share, purpart or dividend of such heir shall be equally divided amongst the survivors or children of the survivors of such heir.” The court below held that the children took a fee simple in the real estate and an absolute estate in the personalty. But this court, reversing that decision, held that the children of the testator took but a life interest in both ,the real and personal estate with remainder in fee to their children. Strong, J., in delivering the opinion of the court, said, on p. 263: “ No principle is better settled than that if a testator in one part of his will give to a person an estate of inheritance of lands, or an absolute interest in personalty, and in subsequent passages unequivocally shows that he means the devisee or legatee to take a lesser interest only, the prior gift is restricted accordingly. * * * Both the admitted rules of legal construction and the statute regard a limitation over after the death of the first taker as evidence of an intention that the devisee or legatee of the prior estate in order of enjoyment is to have no more than an estate or interest for life.”
In Emma Meyers’s Appeal, 13 Wright, Read, J., says, on page 113: “In Re Wynch’s Trusts, 17 Jur. 588, Yice Chancellor Stuart says, page 593, ‘ words importing a gift to issue or a gift over on failure of issue when applied in a will to personal estate, receive a different construction from that which they would receive if applied to real estate.’ ” On page 114 he refers to and approves of Clarke v. Baker, 3 S. & R. 477, and Forth v. Chapman, 1 P. Wms. 667, above cited.
In the case of Hill v. Hill, 24 P. E. Smith 173, this court, Sharswood, J., said: “ It is too well settled by a long train of authorities to be now a question that a devise in fee, with a limitation over upon the death of the first taker leaving no issue, reduces the estate in fee to an estate tail. 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, is the leading case, and it has never been shaken. On the
In Middleswarth’s Adm’r v. Blackmore, 24 P. F. Smith 414, the devise was to Jonathan absolutely of certain real estate, with a a direction that if he died without leaving any legitimate issue, the property was to be sold by the executors and the proceeds to be given partly in charity and partly to the testator’s legitimate grandchildren, by his children who had been previously named. We held, reversing the court below, that the direction to the executors to sell, and to pay the proceeds to grandchildren whose parents were previously named in the will, were sufficient evidence that that an indefinite failure of issue was not intended. Speaking of the direction to the executors to sell, we said: “It manifestly indicates that this failure will occur during the lifetime of some one of his executors named.” As to the bequest of the proceeds, we said “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 persons in view. This excludes the idea that the issue of Jonathan had reference to some remote period of the future.”
In the present case the question is, what was the intention of George A. Snyder as to the time when the failure of issue of Allen S. Hummel should occur, upon which the legacy to him was limited over. Did he mean that it was to occur at the death of Allen S. Hummel, or at some remote period in the future ? If the latter, the limitation being upon an indefinite failure of issue, and the bequest to Allen being absolute, his interest in the bequest was an absolute estate, and it cannot be given to the persons to whom it was bequeathed by the express words of the will. But if the former was his meaning, then it was a limitation upon a definite failure of issue, and the substituted legatees must take the fund. The will was written by the testator, who was a farmer, and its language is so extremely defective in grammatical expression and tech
We are of opinion that the testator intended that his own children should take Allen S. Hummel’s share if Allen died without issue living at the time of his death, and as that is a case of a definite failure of issue, it follows that Allen’s interest was a defeasible one terminable at his own death. The decree of the court below must therefore be reversed. This decision, however, can only operate upon so much of the fund as was affected by the will of the testator. That portion of the fund is the amount received from the administrators of George A. Snyder, to wit, $1732.09. From this sum should be deducted its proportionate share of the expenses of the administration of the- fund by the guardian and also of the costs of the audit upon his account and of this appeal. The first and second assignments of error are without merit and. are dismissed.
Decree reversed and record remitted for further proceedings, with direction to the court below to correct the account and distribution by awarding to the appellants the sum of $1732.09, less its pro rata share of all the expenses of the administration of the fund and of the costs of the audit and of this appeal, and to John Hummel the sum of $672.69, less its pro rata share of the same expenses and costs, the costs of this appeal to be paid out of the fund for distribution.