Leightner v. Leightner , 1878 Pa. LEXIS 131 ( 1878 )

Mr. Justice Woodward

delivered the opinion of the court,

Apparently, the judgment in this case was reached by an inversion of the order of inquiry through which the point in controversy should have been developed. The provision made by Michael Ebert for his two grandsons for life, and upon the death of either, for his issue in fee-simple, was treated by the Common Pleas as the equivalent of a gift to the grandsons and their heirs; and was held to be controlling in establishing the meaning of the language of the testator throughout the clauses constituting the devise. Thus, the rule in Shelley’s case was employed as the means and medium for the interpretation of the will. The authorities collected in Yarnall’s Appeal, 20 P. F. Smith 340, show that its application was ill-timed. The testator’s intention was first to be ascertained by the accustomed principles of construction, and the inquiry was then to be made whether the intention was in accordance with the terms of the rule, or was so clearly inconsistent with those terms as to overbear the implication to be drawn from the use of technical phraseology, or was left so doubtful or so vague as to render the application of the rule necessary to the attainment of certainty of result.

Mr. Ebert’s purpose was indicated by directions which were explicit, perfectly reconcilable with each other, and unmistakable in effect and terms. He gave to his grandsons, Samuel E. Leightner and Albert O. Leightner, his West Manchester farm, in equal shares for life, and upon the death of one of them, “ to his issue in fee-simple.” Stopping at that point, the heirs of the devisees would undoubtedly have taken by limitation, and not by purchase, and the devisees themselves would have been invested with estates in fee. But the word “ issue ” was not used, and was not intended to be used by the testator as a term of art. He went on to define its meaning in the next clause of the same sentence, in which he directed that “ if either should die without issue, then his half should go to the other in fee-simple.” Nemo est Jiceres viventis. In the devise over to the issue of the survivor, the testator could only have meant children, for the ulterior limitation was to take effect in the survivor’s lifetime. With this clear indication of the sense in which the word was employed in providing for the contingency of the death of one of the devisees without issue, taken in connection with the limitation of the estate at the outset, to the grandsons for life, there can be no embarrassment in arriving at the sense in which it was employed in the clause in which, in the contingency of the death of a devisee leaving issue, his interest was given to such issue. And in the same way, the provision that the land should go to the testator’s other heirs in the event of the death of both grandsons without issue, can readily be ascertained to have had a definite and not an indefinite failure of issue in contemplation. In the first and second of the three contingencies, the devise over was in favor of children, and not in favor of heirs, either in fee-simple or fee-tail. In the third, a remainder in fee was devised, to vest on the death, without children, of the tenants for life.

But a subsequent provision of the will indicates perhaps still more significantly not only that it was the testator’s intention to devise a life-estate to his grandsons, but that he believed the intention had been adequately expressed. He ajapointed two of his sons their guardians until they should arrive respectively at the age of twenty-five years, and then authorized either of the grandsons, with the consent of the sons or of the survivor of them, to “ sell his interest in the estate to the other in fee-simple.” The manifest design was to give his devisees the power to convert their estates for life into estates in fee by deeds to be mutually executed by them between the ages of twenty-one and twenty-five. He desired that their titles should become absolute if it should prove safe so to enlarge them. That this result should not be wrought out improvidently, or in a way to hazard the true interests either of the grandsons or their children, the testator relied on the approval of the guardians for assurance and security. While sales were authorized, merely formal transfers would have met the requisitions of the will, for nothing more than the execution of a power was contemplated, and formal deeds would have vested and enlarged the interests, as a formal conveyance secured the same end in the case of Barnet v. Deturk, 9 Wright 72. By interpreting the will so as to give to the grandsons estates of inheritance under the devising clause, the provision for the guardianship and for the transfer and enlargement of the interests, would be reduced to an idle and aimless form. Such an interpretation, indeed, would blot that whole provision out. Wherever it is possible, all of a testator’s directions are to be carried into effect. The grounds ought to be clear, distinct and free from doubt which would warrant a court in setting any of them aside. The mistaken or inadvertent use. of a single technical word was not enough to produce an effect so serious upon Mr. Ebert’s will.

Judgment reversed, and judgment for the defendants in the case sated.