Lauer v. Hoffman ( 1913 )

Opinion by

Mr. Justice Brown,

It is clear that the testator intended to give his daughter hut a life estate in the property which she and her husband have contracted to sell to the appellant; but it is equally clear that, in giving her that estate, he intended to make her a source of inheritable succession, and she, therefore, took a fee under the unbending rule in Shelley’s Case as applied in this State. This is so plainly demonstrated in the opinion of the learned president judge of the court below that little, if anything, can be well added to it, and it will be very briefly supplemented.

The following is the substance of the clause in the will of Franklin S. Bickley by which he devised the real estate in controversy to his daughter, the appellee: “I give and devise to my said wife......my real estate situate on the north side of Penn street......in the City of Beading...... She to have and to hold the same for and during the term of her natural life, and to have the rents, issues and profits thereof during the same period. And immediately after the death of my said wife I give and devise the said real estate to my only child and daughter Susan Elizabeth for and during the term of her natural life, she to have the rents, issues and profits thereof during said period, and after the death of my said daughter the said real estate shall descend to and become vested in the children of my said daughter, should she have any, in fee simple, and in default of such children then such person or persons as she may by her last will and testament direct, — but in no event whatever shall the fee simple to the said real estate vest in my wife......or my daughter Susan Elizabeth during their life-time or the life-time of either of them.” No one familiar with the rule in Shelley’s Case would pretend that the appellee did not take an estate in fee simple, if the testator had not added to the devise to his daughter in the following words: “But in no event whatever shall the fee simple to the said real estate vest in my wife......or my daughter Susan Elizabeth during their life-time or the life-time of either of them.” If, by the preceding words of the testator, the daughter took a fee under the application of the rule in Shelley’s Case to the clearly expressed intention of the father that, upon her death, the property should descend to her children, his subsequent words were utterly inoperative to prevent the legal consequence of the former, no matter how plain the latter may be of a contrary intent. Authorities might be multiplied as to this. In Doebler’s App., 64 Pa. 9, t he testator, Elisha Biggs, made the following devise to his son, Elisha H. Biggs: “I give and devise to my son, Elisha H. Biggs, the block known as the Exchange Building and the Old Arcade; beginning, &c....... I also give and devise to him my mansion-house after my wife’s decease, should she remain unmarried, as also the lot of ground immediately below it, containing about one-half acre, more or less....... But he shall in nowise sell or alienate any of the above-described property, as it is intended that he shall have a life interest only in the same, with remainder over to his heirs in fee, subject to the payment of my debts, and subject also to the bequest to my wife, or any other bequests hereafter mentioned, and he shall in nowise come into possession of any of the above-described property until his twenty-second year.” Surely these words were as clearly indicative of the intention of the testator that a fee simple should not vest in his son as are those of Franklin S. Bickley that his daughter should have but a life estate, but we held, through Mr. Justice Sharswood, in the former case, that the son took a fee, and what was there said is not only peculiarly applicable to the case now before us, but conclusive of the right of the appellee to assert a title in fee simple: “The rule in Shelley’s Case is never a means of discovering the intention. It is applicable only after that has been discovered. It is then an unbending rule of law, originally springing from the principle of the feudal system, and though the original reason of it, the preservation of the rights of the lord to his relief, primer seisin, wardship and marriage has passed away, it is still maintained as a part of the system of real property which is based on feudalism, and as a rule of policy. It declares inexorably that where the ancestor takes a preceding freehold by the same instrument, a remainder shall not be limited to the heirs qua heirs, as purchasers. If given as an immediate remainder after the freehold, it shall vest as an executed estate of inheritance in the ancestor; if immediately after some other interposed estate, then it shall vest in him as a remainder. Wherever this is so, it is not competent for the testator to prevent this legal consequence by any declaration, no matter how plain, of a contrary intention. That is a subordinate intent which is inconsistent with, and must, therefore, be sacrificed to, the paramount one. Even if he expressly provides that the rule shall not apply — that the ancestor shall be tenant for life only and impeachable for waste — if he interpose an estate in trustees to support contingent remainders — or, as in this will, declare in so many words that ‘he shall in nowise sell or alienate, as it is intended that he shall have a life interest only,’ it will be all ineffectual to prevent the operation of the rule. No one can create what is in the intendment of the law an estate in fee, and deprive the tenant of those essential rights and privileges which the law annexes to it. He cannot make a new estate unknown to the law.” Two other cases announcing the same rule are, Shapley v. Diehl, 203 Pa. 566, and Simpson v. Reed, 205 Pa. 53. It is needless to refer to more of our many cases in support of an unquestioned rule of property.

It may be conceded that the testator intended to say in effect, by the concluding words of the devise to his daughter, that the rule in Shelley’s Case should not apply to it; but, though this was his intention, he was as powerless to prevent the operation of that rule as he was to create a new canon of descent, if by the preceding words in the devise to his daughter for life he intended to make her the source of her children’s inheritance of the property upon her death: Hileman v. Bouslaugh, 13 Pa. 334; Simpson v. Reed, supra. What are the words of the devise? “I give and devise the said real estate to my only child and daughter Susan Elizabeth for and during the term of her natural life, she to have the rents, issues and profits thereof during said period, and after the death of my said daughter the said real estate shall descend to and become vested in the children of my said daughter.” Upon the death of the daughter her children are to take by descent — not by devise — and that descent must be from her, for the father had devised the property to her; and when he said that, upon her death, it shall “become vested in the children of my said daughter,” his undoubted intention was that they should then come into the enjoyment and possession of the property by descent from her. In Moyer v. Rentschler, 231 Pa. 620, the words of the devise were: “After the death of my grandsons, as aforesaid, said property is then to descend or go into the possession of their children,” and it was held that this gave the grandsons a fee.

The touchstone, as unvarying as the needle to the pole, for the application of the rule in Shelley’s Case, is a clearly expressed intention by a grantor or devisor that the remaindermen are not to take from him, but from his grantee or devisee of a life estate to which he has attached an inheritable succession in his grantee or devisee. With this easily comprehended and constantly kept in mind, the rule in Shelley’s Case is simple and “ill deserves the epithets” chronically bestowed upon it. We need go no further in vindication of the judgment ..below, which is now affirmed.