Auman v. Auman , 1853 Pa. LEXIS 133 ( 1853 )

The opinion of the Court was delivered, by

Black, C. J.

— The sole question in this cause is, whether the deed of Mathias Haftzinger to Peter Auman and wife, conveyed merely a life estate, or whether they took a joint estate in fee simple. If it be within the rule in Shelly’s Case, the judgment of the Common Pleas was right.

It demises, &c., the land to them during their joint lives, or the life of the survivor, without impeachment of waste, and reserves the yearly rent of one peppercorn.

This undoubtedly gives a freehold to Auman and his wife. The reservation of a rent cannot diminish the estate. The clause “without impeachment of waste,” is found in many deeds and devises which are held to create freeholds (Pappillon v. Voice, 1 P. Wms. 471; Burnet v. Earl of Tankerville, 19 Ves. 170). Nor does it. seem to be material what words are used to give the estate. A departure from the phrases ordinarily employed, and the Substitution of others, such as demise, let, or lease, can have no influence on the question of freehold or not, provided the deed, taken altogether, does substantially give the grantee an irrevocable right to hold and enjoy the premises for the term of his natural life at least.

It being thus settled, that Auman and wife took a freehold estate, is it made an estate of inheritance by the limitation which the same deed contains, to their heirs after their death ? No one denies that the operation of the rule in Shelly’s Case will have that effect if the deed be within it. Nor is it pretended that we have not fully adopted that rule in this state. It is a part of the law here, as much as it ever was in England.

Is there any peculiarity about the deed before us which takes it out of that rule ? It is contended, that the life estate being given to a husband and wife, and the fee to “the heirs of them,” the word heirs cannot be taken in its proper technical sense. This argument is ingenious and somewhat far-fetched. It is based on the notion that “the heirs of them,” must be the heirs of both; nobody can be the heirs of both except the children of both; therefore the word heirs in this deed is equivalent to children, and a word not of limitation but of purchase. But there is no reason whatever, and just as little authority as reason, for holding that a joint freehold estate to a man and his wife, with a fee to their heirs, is not within the rule. In Miller v. Seagreaves (Roberts on Gavelkind 96, see 6 Cruise 353), the life estate was in a husband and wife, just as it is here. We have no power to assign to the words any but their legal signification. The parties to a deed having either acted with the advice of counsel, or standing chargeable with supineness if they have not, are entitled to no indulgence on the score of ignorance; and legal terms in such an instrument must be understood in their legal sense, whether used by a lawyer or a layman (4 Watts 90). Even in a will, supposed to be made when the testator is inops consilii, the word heirs has a fixed sense, which will adhere to it until it is explained away; and this, it has been said, can only be done by making the contrary intent appear so plainly, that no one can misunderstand it. (3 Bos. & Pul. 620.) In Tyson v.Wright (2 Bligh 1), it was held that “heirs of her body” used in a will, created an estate tail, which could not be cut down, even by inconsistent and repugnant expressions. It may be that these rules should be somewhat softened in the interpretation of wills; but their soundness, as applied to deeds, can hardly be questioned. If we understand the word heirs according to its legal import, and as a word of limitation, the deed gave Au-man and his wife a joint estate in fee simple, and they'ws aecrescendi not being taken away by the statute where husband and wife are joint tenants, it goes to the heirs or assigns of the survivor.

We do not perceive the distinction taken by the counsel of the plaintiff in error between the phrase “ their heirs” and “ heirs of them.” The legal as well as the grammatical meaning of both is precisely the same. The one means children or issue no more than the other. In. the case cited (1 Durn. & E. 630), the word heirs was neeessarily a word of purchase, because neither of the ancestors took a preceding estate. Being a word of purchase, it was by the same necessity deseriptio personae; and no one could take who did not meet the description of a right heir to both the ancestors named. But that principle does not apply here.

We encounter here, again, the argument so often met in cases like this; namely, that we will defeat the intention of the grantor if we give the fresh takers a fee. I think it very probable, nay, almost certain, that the grantor meant to give no more than a life estate to Peter and Magdalena Auman. But if such was his intent, it must be overruled by the legal construction of the words. The very purpose and object of the rule in Shelly’s Case is to control such intentions, and (in all cases properly within it) to substitute a totally different operation from that designed by the donor. The intention of the grantor to give a mere life estate was as clearly expressed in the deed to Edward Shelly as it is here. The same may be said of the deed in Baughman v. Baughman (2 Yeates 410), or in the late case of Hileman v. Bouslaugh (1 Harris 345), and of the will in Evans v. Davis (1 Dall. 47), as well as of the instrument in almost every case where the rule has been held to apply. And there are other decision's which go much further. In Robinson v. Robinson (2 Ves. 225), ‘the words of the will were for life, and no longer. In Cook v. Cooper (1 East 229), the devise was to R. C., for the term only of his natural life. In Roe v. Broford (4 Maule & Selw. 362), after expressing the intention to give no more than a life estate in terms perfectly unequivocal, a declaration was added, that the tenant for life should not have it in her power to defeat that intention. Perrin v. Blake (4 Burr. 2579), was still stronger, if we take the judgment of the Exchequer Chamber reversing the King’s Bench to be right. There the testator declared that the devisee should not sell or dispose of the estate for a longer term than his life, and to that intent gave him but a life estate. Although, therefore, the grantor in the present case may have intended to give the grantees a life estate only, yet if he did at the same time, and by the same conveyance, give an estate in the same lands to their heirs, we must read the deed as if it were an ordinary conveyance of the fee to the first takers, striking out all the words which denote his wish to make it less than a fee.

Magdalena Auman having survived her hushand, was tenant in fee-simple at the date of her d§ed, and had a right to convey it. The' present defendant stands in her shoes, and the judgment of the Court below was according to law.

Judgment affirmed.