Stehman v. Stehman
1 Watts 466
Pa.
1833
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The opinion of the Court was delivered by

Gibson, C. J.

This is a question depending on intention rather than on any controverted rule of law, and one without any apparent difficulty. The plaintiffs insist that these limitations present a case of concurrent remainders dependent on a contingency with a double aspect: while the defendant insists that the general and paramount intent was to secure the estate to the children of Tobias at all events, and without regard to the time of their birth; that to effectuate this intent, it is necessary either to imply the existence of an estate in tail male in Tobias himself, or to sustain the limitation to his children as an executory devise, supposing the estate to have descended at the death of the widow to the testator’s right heirs, in order, to await the expected contingency which was to happen, if at all, within the lifetime of Tobias and the usual period of gestation afterwards.

Granting that subordinate objects must yield to the general intent, and that to effect it an estate may be enlarged, restricted or implied, yet it is evident that to strain the limitation to the children of Tobias so as to give their father an estate tail, would dislocate every joint and articulation of what seems to have been the general and para*474mount design. An adequate provision had been made for Tobias, it is to be presumed, in the devise to him of the mansion-house and farm though burthened with a pecuniary charge; and the object to be accomplished by the limitation in question, was evidently to secure the land in contest to his children or the children of John, without subjecting it to his debts, or exposing it to the accidents that might befall it as his property. That the precaution taken to effect this might have been eluded, had there been an estate tail in him, by turning it into a fee, is too obvious to need remark. Without having children of his own, he could by the same means have disappointed another principal object of the testator in the further limitation to the children of John, who wére intended to take certainly in any other event than the existence of children born to Tobias himself. The object was not so much to vest the estate in these children at all events, as to protect it from the acts or disposition of their father. What if Tobias had suffered a common recovery, and the present were a contest between the plaintiffs and a purchaser under a judgment against him, or, to make the case more glaring, between such a purchaser and his own children ? The construction contended for, fatal as it must have proved to the testator’s whole plan, would have been thought a monstrous one. But his children were directed in express terms to take a fee; which would have been inconsistent with the derivation of an estate tail from him. To imply an estate in him, then, that would be subversive of the leading objects of the will, could be justified on no principle of construction. So that the question is whether the limitation to his children can be supported as an executory devise; and the decision of it must be governed by the testator’s intent in respect to the time of its vesting.

If it be found that the estate was to go over at the death of the widow, to whom an estate of freehold was given, we shall have one of the plainest cases in the world, of concurrent remainders limited to take effect on the happening of a contingency-with a double aspect—much more so than that presented by the limitations in Dunwoodie v. Reed. The devise over is so expressed in this will as to indicate what has been supposed an apparent intent that it should take effect after and not at the death of the widow—a difference of little account in common parlance, and absolutely worthless in the expression of an intention accidentally suffered to rest in the loose memoranda of a scrivener, intended at the time to be but the material of a more precise and formal declaration of the testator’s will. Were it important to ascertain the exact sense in which this word “ after” was used by the scrivener, it might be done by adverting to the clause in which the testator directs the other land devised to the children of John to be valued “ after” the. death of their mother, to whom it was given for their support during her life by way of exception out of the fee; and there it was used incontrovertibly to denote the very point of time when her interest should cease. It is supposed, however, that as the testator’s widow followed him in little more *475than a month from the date of the will, he could scarce have supposed it probable that Tobias would marry and procreate within the apparently short compass of her life; and that he never could have meditated a disposition which, according to the plaintiffs’ interpretation of it, would, on any calculation of the chances, almost certainly prove abortive’. We are left without information, by the verdict, of the widow’s constitution and age; but the testator has nowhere intimated that the probable duration of her life was, in his opinion, such as to preclude a reasonable expectation of children from Tobias before its termination. The estate was to be taken by the children at a valuation of it to be made by the testator, or men appointed by him; and if the latter, he could not have supposed it probable that all the men would survive Tobias, without which the purpose to be effected by their appointment would have been frustrated. If it be said that he contemplated a valuation to be made presently, the remark is open to this objection that, familiar as he must, have been with the changes in the price of land that are perpetually taking place, he would scarce have expected it to be a just or reasonable one at the period of his son’s death. It would, therefore, seem fair to conclude, that the making of this valuation, and the consequent vesting of the successful limitation over, were coupled in his mind with the death of the widow. But the consequence of postponing them till the possibility of children by Tobias should have become extinct, would be inconsistent with any reasonable presumption of intent in another view. No presumption of an intent to die intestate as to any part of the estate, is to be made, where the words of the testator will carry the whole ; and certainly no such intent is apparent here. Yet, according to the hypothesis of the defendant, the estate descended to the testator’s right heirs at the death of the widow, and was paitable during the interval between that event and the happening of the contingency, as in the case of a common intestacy, by the orphan’s court. Can it be supposed that such a partition was thought of % Had a temporary descent been contemplated, a temporary valuation would doubtless have been directed, and to be made by the men who, according to the defendant’s construction, were to' appraise the portions of the children at the death of Tobias or the sooner happening of the contingency. But putting all this aside, the inflexible rule which demands that no limitation be deemed an executory devise if it may by any practicable construction be sustained as a contingent remainder, overbears all implications of an intention inconsistent with it, and is decisive of the question. This, too, for the all-sufficient reason that these executory devises, being inconsistent with the policy of the common law, which, on account of its abhorrence of estates commencing in futuro, requires all the precedent parts of the fee to pass out of the grantor at the same instant, are barely tolerated, and only in favour of the explicit declaration of one who may have been compelled to dispose of his estate when unassisted by counsel. They are therefore to be sustained but in clear cases of *476absolute necessity ; and nothing remains but to inquire whether the present is such. In the first place, then, there was a sufficient particular estate of freehold in the widow ; next there were limitations after her death, to the male heirs of Tobias, if he should have any, in fee ; or in default of such heirs, to the males of John; and finally these limitations were concurrent and in defeasance of each other. What more was necessary to give effect to all the practicable parts of the testator’s plan? As contingent limitations of a remainder, they would have been effectual to preserve the estate for all the children of Tobias, had any been born in time to take ; for their remainder having vested in some of them, would undoubtedly have opened to let in the rest though subsequently bom. But in the succession of the events that have taken place, the limitation to them having been passed by, is gone for ever; and the estate is irrevocably vested in those who answered the description in the posterior limitations at the death of the particular tenant.

Judgment affirmed.