Kleppner v. Laverty , 1871 Pa. LEXIS 242 ( 1871 )

The opinion of the court was delivered, November 9th 1871, by

Sharswood, J.

The word “ issue” in a will means primá facie the same thing as “ heirs of the body,” and in general is to be construed as a word of limitation; but this construction will give way, if there be on the face of the instrument sufficient to show that the word was intended to have a less extended meaning and to be applied only to children, or to descendants of a particular class or at a particular time. The authorities in support of this general rule are cited in Taylor v. Taylor, 13 P. F. Smith 484, to which may be added Gast v. Baer, 12 P. F. Smith 35, and Angle v. Brosius, 7 Wright 187. “ The word ‘ issue,’ ” says Mr. Justice Strong, “is well adapted for a word of limitation, having much more aptitude for such an use than it has to designate the objects of a gift. In signification it very nearly resembles the technical phrase ‘heirs of the body,’ and indeed the two were used as synonyms in the statute de donis. Hence it has long been settled, that,when real estate is devised by one or more limitations in the same will to a person and his issue, the word issue will be construed as a word of limitation so as to give the ancestor an estate tail, unless there are expressions in the will unequivocally indicative of a contrary intention.” Even, therefore, though there should be an estate for life in express terms, and a devise to issue in remainder on the death of the tenant for life, either expressly or by implication only, as by a devise over for want or in default of issue, unless there is something to contradict unequivocally the presumed intention that the devise over shall not take effect until the whole line of issue is extinct, the rule of law is an unbending one, which vests the inheritance in tail in the first taker. The particular intent must give way to the general one. The rule in Shelley’s Case is not a rule of construction— not a means of ascertaining the intention of the testator. It presupposes that intention to be ascertained. It is a rule of law which declares inexorably that where the ancestor takes a preceding freehold by the same instrument,, whether deed or will, a remainder shall not be limited to his heirs as purchasers. When we determine that by “issue” he means heirs of the body — the entire line taking in succession by descent — the rule has the same application. If given as an immediate remainder after the freehold it shall vest as an executed estate of inheritance in the ancestor; if mediately after some other interposed estate, then it shall vest in him as a remainder: Doebler’s Appeal, 14 P. F. Smith 17. In Paxson v. Lefferts, 3 Rawle 59, where a testator devised his plantation to his son during his natural life, and if he shall leave lawful issue, then to them, their heirs and assigns for ever, but for want of such lawful issue then over, it was held clearly to be an estate tail in the son. The principal difficulty in that case was in the superadded words of limitation to the devise to the issue — “to them, their heirs and assigns for ever,” from which it was argued that these words showed that the issues were not intended to take “ qua heirs,” but to be root of a new succession. Mr. Justice Kennedy, who delivered the opinion of the court, shows by authority that this makes no difference, and that according to the doctrine of Mr. Fearne, in his Treatise on Contingent Remainders, even words of limitation superadded, if not inconsistent with the nature of the descent (pointed out by the first words) will not convert them into words of purchase; and he cites in illustration the case of Dodson v. Grew, 2 Wils. 322, where the word “issue” was the term employed by the testator. There the devise was “to A. for life, remainder to the issue male of his body lawfully to be begotten, and the heirs male of the body of such issue male, and for want of such issue male over,” and held that A. took an estate tail.

It is not easy to perceive any difference between the words of the will in Paxson v. Lefferts and those of the will of Felix Laverty, now before us, which ought to be received as indicative of a different intention. There was there a devise for life; then if the devisee should leave lawful issue, to such issue, and for want of such issue, over. Here it is to Mary Ann for life; upon the happening of her death, to her lawful issue, if she should leave any — in default of such issue, over. There are no words of superadded limitation in the will of Felix Laverty as there was in that of John Knight; but this only makes the caso stronger in favor of the defendant in error. There is nothing to indicate that by issue Eelix Laverty meant “ children,” or only such issue as should be living at the period of his daughter’s death — nothing to show that he did not mean that which the words primá facie and naturally import, that the estate was not to go over to his brothers and sisters until the whole line of his descendants through his daughter Mary Ann was extinct. Indeed when he comes, in a subsequent part of his will, to make a disposition of his personal estate, he indicates pretty clearly by the introduction of other words besides those used in the disposition of his real estate, that he intended a difference. After directing the interest of his personal estate to be paid over to his daughter Mary Ann for her own use, he provides that “ upon her death the principal to be paid to any lawful issue she may leave surviving her, and in default of such issue, and upon the happening of her death, and not before, the said principal moneys to be divided equally among my aforesaid brothers and sisters, and their heirs.” Had these words “surviving her” been found in the disposition of his real estate it would have been some indication of an intention that he meant “ children” or “ issue then living.” That he omitted them there and inserted them here, shows that he had not that intention as to his real estate. The issue of the daughter Mary Ann were to take her real estate upon the happening of her death as heirs of her body — qua heirs, and the rule in Shelley’s Case must be held to apply. The consequence is that Mary Ann took an estate tail, which, by the Act' of April 27th 1855 (Pamph. L. 368), shall be taken and construed to be an estate in fee simple, and as such shall be inheritable and freely alienable.

Judgment affirmed.