13 Pa. 594 | Pa. | 1850
The opinion of the court was delivered by
As it is not to be questioned, so it is not denied by either of the parties, fhat, in order to ascertain the terms of the conveyance made by Abraham Reist to his daughter Barbara, the deed of the 80th May, 1809, and the article of agreement executed on the same day, must be read as one instrument, together constituting the muniment of tifie, under which the litigants before us respectfcdly claim. If authority were required for so plain a proposition, it may be found in Shep. Touch. 242, 3 Com. Dig. Condition A., and our own cases of Hamilton vs. Elliott, 5 S. & R. 375; and Baer vs. Whistler, 7 W. 144. Upon these two papers then, thus treated and considered, the question arises, what estate Barbara took; whether a fee conditional, a fee tail, or, as the court below seems to have thought, an estate for life, with a contingent limitation to such of the children as should attain the age of twenty-one years.
To a mind unaccustomed to the critical niceties the common lawyer has been taught to exert in the construction of words and sentences, and looking only to the intention of the contracting parties, there would seem to be no room for hesitancy.- Reading these documents in a spirit untrammelled by technical rule, and the refined and subtle reasoning of legal logic, there could .be, but one conclusion attained. And happily, in this instance, I think if clear, this conclusion is in harmony with that which the jurist re-, ferring to and acknowledging the authority of judicial precedent1 must arrive at.
By the words of the grant, the land in question is conveyed “to" Barbara, her heirs and the assigns of her heirs, and to the only proper use and benefit of her, the said Barbara Bomberger, her heirs and the assigns of her heirs forever.” Although from the peculiarity of the phraseology here used, in connection with the word “ assigns,” it might be argued some intention is discoverable to distinguish between the ancestress and her heirs, there is no room to dispute that the clause I have cited, standing alone, conferred on the first taker an indefeasible estate in fee simple. But immediately following is this qualification, “under and subject to a certain article of agreement, bearing even date with this present indenture, executed by the said Abrahani Reist, Christian Bomberger, and Barbara his wife, the aforesaid Barbara Bomberger.” This pointed reference to the simultaneous articles of agreement, as containing something which may qualify or restrain the generality of the grant, agreed upon by all the parties, in effect adopts
~ Now, it is not to be doubted, the clause' of the article was intended to operate in defeasance of the estate granted, and that it presents us with the characteristics necessary -to endow it with the power of operation. Its opening words are equivalent. ' “ If it should happen the said Barbara should die without issue,” &c.,. and it closes with words of forfeiture, applicable only to the estate given, which, according to the-.Touchstone is one of the features of a condition: Shep. Touch. 30 Law Lib. 236, 7. Every legal requirement is thus satisfied, and as no question can be made of the intention to give Barbara an estate of inheritance, subject to be defeated upon the contingency of her dying without issue, who should live to attain the age of twenty-one years, a layman would be at a loss to understand why, on the happening of the contin.geney contemplated, the condition should not operate to put an end to the defeasible estate, and invest the-fee in the right heirs of the grantor. The plaintiffs in error resist this conclusion, on the ground that the clause in question either restrains the legal operation of the words of inheritance used in the deed, or it does not. If the latter is the ca'se, say they, it .leaves the estate granted in all the plenitude of an unqualified gift in. fee simple,- as the terms of the deed, taken alone, import; if the former it reduces it to an estate tail, which having been barred, the heirs of the grantor can take nothing by force' of the limitation over. It might be sufficient to answer that it works not a limitation upon the precedent estate, but a total destruction of it, since it provides that in the event indicated, the conveyance shall'become absolutely, void. But as the idea of an estate tail was much insisted on in argument, it may not be amiss shortly to notice it.
Much recondite learning has been expended on the question, when, in a conveyance after words of inheritance, the introduction of a limitation over to take effect on failure of the first taker, will reduce the estate given to a fee tail. Though it is settled no estate can arise from implication in a common law conveyance, it seems agreed prior' words of grant may be explained, lessened, or. qualified by subsequent terms, and thus language broad enough to confer a fee simple, may be much narrowed down by a subsequent expression to a fee tail. It is not my intention to discuss this somewhat intricate and perplexing subject. The learning relating to it,' may be found collected in Preston on Estates, in the chapter treating of estates tail. It will suffice now to observe that to reduce the estate first given, the gift must be restrained, by the frame and context of the deed, to the heirs of the body of the donee, either by express words, or by something tantamount,
From what has been said, it results, that Barbara took a fee simple, dependent on the condition of leaving children, who .should live to attain full age. Having failed in this, her estate has determined by her.death, and a fee vested in the right heirs of the grantor. The judgment pronounced below is consequently right.
.Judgment affirmed.