Wynn v. Story , 1861 Pa. LEXIS 80 ( 1861 )

The opinion of the court was delivered,

by Strong, J.

— We think that, under the will of Robert Stewart, Robert S. Story took an estate tail, which by his deed to bar the entailment, and the subsequent reconveyance to bim, became a fee simple. The devise was to him for life, and if be should die leaving lawful issue, to bim, bis heirs and assigns for ever; but if be should die leaving no such lawful issue, then over. The argument of the plaintiff in error is that the testator contemplated a definite and not an indefinite failure of issue of the first taker.

The thing given was real estate. However much the rule may be relaxed in regard to bequests of personalty, it is inflexible as regards devises of realty; that words such as are used in this will import an indefinite failure of issue. Smith, in his work on Executory Interests, p. 588, collects a large number of cases, and remarks in regard to them, that “it will be perceived that, as regards real estate, no distinction exists between the words ‘ die without issue,’ and ‘die without leaving issue,’ and ‘in default,’ or on failure,’ and ‘for want of issue,’ but that all those expressions, in devises made before the year 1838 (the date of the recent British statute), are construed to import of themselves an indefinite failure of issue.” The rule has again and again been asserted to be the law of Pennsylvania. The case was, therefore, rightly decided.

The judgment is affirmed.