Allen v. Pedder ( 1925 )

The opinion of the court was delivered by

Burch, J.:

The action was one by a purchaser of land from a devisee, to quiet title against a person claiming a contingent interest under the will. The petition stated the facts, a demurrer to the petition was overruled, the claimant, Clarkston, stood on the demurrer, and judgment was entered for plaintiff. The claimant appeals.

On June 1, 1921, William A. Pedder made the will in question. He died on April 13, 1922, and the will was duly probated. The item of the will material to the controversy reads as follows:

“Third: I give, devise and bequeath to my adopted son, Joseph Pedder, the following-described real estate, to wit: [Description], to be used by my said adopted son, Joseph Pedder, for and during his natural life, and after his death I give, devise and bequeath said real estate to his children, of his own blood, bom in lawful wedlock.

“Should my adopted son, Joseph Pedder, die without children of his own blood born in lawful wedlock, then I give and devise said real estate to my great-nephew, William Clarkston, 27 Garsland Road, Washam, Near Kirkham, Lancanschire, England.”

Joseph Pedder was a single man, having no children, and on January 24, 1924, he conveyed the land to plaintiff by warranty deed. The district court held Joseph took an estate tail, which was converted into a fee simple by his conveyance.

In Ewing v. Nesbitt, 88 Kan. 708, 129 Pac. 1131, it was demonstrated that the legislature restored estates tail to a place in the common law of this state, after having abolished them; that one of the characteristics of such estates, as we received them, is that the entail may be defeated by ordinary conveyance; and that in this form such estates are adapted to* meet the wants of the people, and are not detrimental to the general welfare. In Gardner v. Anderson, 116 Kan. 431, 227 Pac. 743, it was shown that recent efforts to change the common law relating to estates tail had failed in the legislature. In the Gardner case (114 Kan. 778, 227 Pac. 743, and 116 Kan. 431, 227 Pac. 743), it was held that a gift by will to one for life only, and then to issue of the life tenant, with reversion to the estate of the testator in the event of no issue, gave the first taker an estate tail. The decisions in the Ewing case and the Gardner case established a rule of property, and govern the present controversy.

Suppose the will; had said, “I give my land to Joseph and his children of his own blood lawfully begotten.” There would have been no doubt that an estate tail was created. The meaning would be as clear as if the testator had used' the technical term, “lawful heirs of his body.” Suppose the will had said, “I give my land to Joseph, and at his death to his children, of his own blood lawfully begotten.” Under the law applicable to such a gift, nothing would be added to the shorter expression. While the phraseology of the actual will is expanded still more, the thought expressed is neither changed nor enlarged. Whether disappointed of a son of his own blood, or for some other reason, William Pedder turned to Joseph and, contemplating Joseph’s marriage and the birth of children, undertook to found a line of legitimate succession to his property, with Joseph at its head. At his death the land was to go to Joseph. At Joseph’s death, it was to go to his children of his own blood born in lawful wedlock. Should this scheme be thwarted, the land was to go to Clarkston. The word “blood” is the popular term to indicate consanguinity. Since any legitimate child Joseph might beget would necessarily be of his own blood, the court is satisfied the testator had in mind Joseph’s legitimate issue, and meant to express lineage. Heirship generally was cut off. Only those of Joseph’s blood born in lawful wedlock could take, and they were to inherit until Joseph’s blood became extinct. The statute of Westminster II, 13 Edw. I, known as the statute “He Donis Conditionalibus” (1285), was enacted to make this kind of a devise come true. The first taker was forbidden to aliene, and when issue failed, the land reverted to the donor or his heirs. The social forces making for freedom to convey became strong enough that Taltarum’s case, decided 200 years later. (Y. B. 12 Edw. IV, 19 [1472]), sanctioned the barring of both entail and donor by common recovery. As indicated in the Ewing case, the effe'ct of a common recovery was a conveyance of record —under our law an ordinary deed. The result is, Joseph took an estate tail, which he converted into a fee simple by his warranty deed to plaintiff.

Clarkston cites the case of Purl v. Purl, 108 Kan. 673, 197 Pac. 185. In that case the will gave land to a son to have during his life, and at his death it was to go to his children, if he had any living, and if not, to his brothers and sisters. It was taken for granted by the litigants that the children took, if at all, by purchase, and the question was, whether the remainder was vested or was contingent until death of the life tenant. The assumption was well founded. The limitation over was made on definite failure of children living at the time of the life tenant’s death. The life tenant had children living when the will was made and when it took effect, and the will as a whole indicated that the testator was himself giving to such of the son’s children as should’ survive the son. The question is always one of intention, to be ascertained by interpretation of the will: Was the descriptive word used in a definite sense, as designatio personen, or as contemplating the whole of a class of descendants? In this instance, Joseph’s children would take, not as primary objects of the testator’s bounty, but because they would be the first of Joseph’s blood.

Authorities are cited that an estate tail will not be implied when the limitation over is on definite failure of issue, and it is contended that this will discloses a limitation over on definite failure of issue. Definite failure of issue means just what the term imports—as for example, death of the first taker without issue before reaching the age of twenty-one, death without issue living at the time of death, and the like. All the authorities which are not disposed'to depart from fundamental rules, hold that a will in the form of the Pedder will imports indefinite failure of issue. It is sufficient to cite: Winchell v. Winchell, 259 Ill. 471, 475; Hertz v. Abrahams, 110 Ga. 707, 710; Eichelberger v. Barnitz, 9 Watts (Pa.) 447, 450; Barber v. Pittsburgh, &c., Railway, 166 U. S. 83.

The authorities to the contrary are those which are quick to seize upon anything to defeat estates tail. There is no such policy in this state.- In the opinion in the case of Richardson v. Richardson, 80 Me. 585, it was said:

“An application of .plain rules to plain facts ought to produce satisfactory-results in the construction of wills. The intricacy on the subject has largely grown up from the distaste which the people and courts have for certain classes of devises. Judge Curtis, in Abbott v. The Essex Company, 2 Curtis, (C. C.) 126, says: ‘I think it may be said with truth, that the American courts, while they have recognized the rule (relating to the creation of estates tail), have shown a strong disposition to lay hold on pretty slight expressions in the will to defeat its operation; a tendency which has been effectually sanctioned not only in several states in this country, but in England, by legislation which abolishes the rule altogether.’ Now, that our statute has ameliorated the effect of the rule, by allowing any person seized of land in tail to convey it in fee simple, there need not be much difficulty in the way of bestowing upon such devises a fair and consistent construction.” (p. 591.)

While we have no statute on the subject, Kansas is in the category of those states which recognize true estates tail, but permit the tenant in tail to break entailment by conveyance.

The judgment of the district court is affirmed.