Bassett v. Hawk , 118 Pa. 94 ( 1888 )

Opinion,

Mr. Chief Justice Gordon :

This was an action of ejectment for the recovery of the possession of a tract of twenty-five acres of land, more or less, situate in the township of South Buffalo in the county of Armstrong, brought by A. E. Bassett against Simon Hawk.

' The land in controversy was part of a larger tract owned by Columbus McGinley, in bis lifetime, who, previously to his. decease in 1843, made his will, which, so far as it affects this case, reads as follows: “ The farm on which I live, in Buffalo township aforesaid, I give and bequeath the one half of the same to my daughter, Nancy Clark, being the end next William Morrison, and adjoining lands of William Todds and George Keener, Sr., with the buildings and orchard; the balance of the land, or the other half of said tract, I will to my son, Daniel McGinley, to his use as long as he shall live, and to his legal heirs, if he have any, at his death; and if my son Daniel do not have any legal heirs at his death, then, and in that case, this part of the farm aforesaid which is not devised to my daughter, Nancy Clark, I will to be given to my grandchildren, Charlotte Clark, Mary Clark and Columbus Clark.” In pursuance of an amicable partition made between Nancy Clark, and her husband, John,-of the one part, and Daniel McGinley of the other part,.and, dated August 16, 1850, the-said Daniel deeded in fee to the said John and Nancy Clark, thirty-six acres of the land claimed by him under the said will, which is the land now in controversy. The parties last named, afterwards, January 4, 1855, deeded the property in-question to Simon Hawk, the defendant below. It would appear further, from the evidence, that during or before the-year 1850, Nancy Clark entered upon this land, claiming it as her own, built a cabin house upon it, and occupied it until she sold it to Hawk, who has resided upon it continuously from that time to this. From the facts thus detailed, the defence may be stated in brief as follows: Under the will of Columbus McGinley, Daniel took a fee; if not a fee simple-, yet a fee-tail, and as he died without issue the remaindermen have been barred by the statute of limitations. On the other-hand, the plaintiff claims through Charlotte Forcade, one of the three grandchildren mentioned in the will of Columbus McGinley, and the only one who survived Daniel McGinley, the life tenant who deceased in 1873, without lineal heirs. Now, the plaintiff’s contention is that Daniel, under the will of his father, took but a life estate; that, as a consequence, his vendees took nothing by Ms conveyance but the right of possession in the premises during Ms life, and that the statute-could not begin to run as against the remaindermen until their right of entry accrued, which was not until his death. Admitting the premise here stated, that is, that Daniel was but a life tenant, and the conclusion is undoubtedly correct, and so the court held. But the plaintiff’s counsel and the court differed in this; the former insisted that the remainder devised to the grandchildren was contingent, and became vested only on the death of Daniel without issue; hence, Charlotte, being the only survivor of the three grandchildren at the time of Daniel’s decease, took the entire estate. The court, however, refused to adopt this view of the case, and held: that whilst Daniel had a life estate only, yet that the devised remainder vested, on the death of the testator, in the three grandchildren, and that upon the death of Mary and Columbus Clark their interests passed to their mother, Nancy Clark, for life.

Admitting the premise assumed both by court and counsel, and we cannot pronounce this ruling erroneous. It is true the remainder was in abeyance, and so remained until the decease of the life tenant, but, as was said in Kelso v. Dickey, 7 W. & S. 279, the contingency was not attached to the capacity of the remaindermen to take, but to an event independent of, and not affecting either their capacity to take, or to transmit the right to their representatives. So, in Chess’s Appeal, 87 Pa. 362, where a testator devised real estate to his son, and should he die without legitimate issue then the property to be sold, and after paying certain legacies, the balance to be distributed amongst his grandchildren; it was held, that the representatives of those grandchildren who died before the son’s death, should share in the distribution with those living. “ Attaching a contingency to the gift of the second bequest ought not and does not affect the case, unless that contingency relates to the capacity of the second legatee, or donee, to take: ” McClure’s App., 72 Pa. 414. From the authorities here cited, it is obvious that the assignments of' error on the plaintiff’s writ cannot be sustained. But a more serious question arises on the writ taken by the defendant. As we have seen, the court held that Daniel McGinley took under his father’s testament but a life estate. To this ruling the defendant excepted, and thus is raised the main question of the case.

It is contended, on part of Hawk, that the estate vested in Daniel was a fee simple, or, at least, a fee-tail. The learned president of the Common Pleas refused to adopt this view of the matter in controversy, holding that the word “ heirs ” in the will must be construed to mean children, who, had there been any, would have taken as purchasers, and not as by descent from their father; and that, as a consequence, the remainder was vested in the grandchildren at the death of the testator, which not having been defeated by the occurrence of the contingency, that is, the birth of lawful issue, the entire estate in fee passed to the remaindermen at Daniel’s death. In this ruling of the court below we cannot concur, for by it an unwarranted interpretation is put upon the word “ heirs.” This is strictly a word of limitation, and there is nothing apparent on the face of the will which tends to show that the testator intended the contrary. “ The other half of said tract I will to my son Daniel McGinley, to use as long as he shall live, and to his legal heirs, if he have any, at his death; and if my son Daniel McGinley do not have any legal heirs at his death, then,” etc. This is all of the will which at all bears on the point in controversy, and there is surely nothing in it which warrants the construction adopted by the court below. The only single reason for this construction is, that as the testator evidently intended to give Daniel but a life estate, the issue, if any, would take as purchasers. But this conclusion is not sound, in that regard is had to the particular rather than to the general intent. We agree that the intention of the testator is, in the construction of his will, the imperative rule by which it must be interpreted.

Here, then, our first inquiry is, what did Columbus McGinley intend by the language of which he made use ? We may admit that he intended to give Daniel but a life estate, but this of itself is not sufficient to prevent the application of the rule in Shelley’s Case, for the further question is, what did he intend by the word “heirs ” ? And what is there in the context to show that he did not intend to use that word in its technical sense ? The testator was evidently not speaking of children as such, for there were none then in existence, but of those whether children or grandchildren who should be born of his blood, and be living at the. time of his death and who, in consequence, would be capable of taking from him. In other words, Daniel is the one who shall give character to those who may take after him; he is made the stirps, or stock of the succession which is to take the devised property, and so, by the rule above stated, the inheritance is vested in him, and he is vested with an estate of inheritance. As we said in Yarn albs App., 70 Pa. 335, “The life estate incorporates with the inheritance because of the failure of the testator to designate any other than the legal line of descent. In short, he calls the devisee a tenant for life, yet vests the fee in him.” So, in Findlay v. Riddle, 3 Binn. 139, it was held by Mr. Chief Justice Tilghman, that though a testator may intend to give a life estate, yet if the main or general intent is to give other estates inconsistent with an estate for life, there the particular intent being of less importance, must give way to the general intent. He instances a devise to A. for life, remainder to his issue as tenants in common, and in default of such issue, the remainder to B. in fee, and holds that in such case A. takes an estate-tail, because the main intent was that B. should take nothing until there was a failure of the issue of A. A case more nearly parallel to the one in hand could hardly be devised, for without doubt the main intent of Columbus Me Ginley was that the issue .of Daniel should take to the exclusion of the children of Mrs. Clark. Also, in Wild’s Case, 6 Co. 17, it was held, if there be a devise to A. and his children, and there be no children then in being, it creates an estate-tail in A.; and this because the devise being in words de presentí, the children, if any, must take by way of limitation, and thus the general is made to override the particular intent. We may also call attention to the case of Allen v. Markle, 36 Pa. 117, where we held, per Mr. Justice Strong, that, where there was a devise to A. for life, and at his decease to his legitimate offspring forever, and on failure of such issue, over to other devisees, A. took an estate-tail. But it is useless to multiply authorities, for, unquestionably, Shelley’s Case governs the controversy in hand, and that is the end' of the matter. This rule may be an unreasonable one, and admittedly does generally defeat the particular intent of the testator, but it is so thoroughly fixed in our law, and upon it depends so many valuable land titles, that it would be a very serious breach of our judicial duty to even hesitate to enforce it.

As the devise was made previous to 1855, it becomes important for us to consider whether under it Daniel took in fee or in tail. After a careful consideration of the language of the will we have come to the conclusion that the devise was of a fee-tail. The hypothesis on which the testator made the devise over would seem to rebut the idea that he meant heirs general, for he gives the remainder to the children of Daniel’s sister, who, on the happening of the contemplated event, would be his heirs. He certainly did not contemplate that when his son died he would have no heirs of any kind, for he negatives such a presumption by appointing Daniel’s nephew and nieces to take after him. He must, therefore, by the use of the word “ heirs ” have intended heirs of the body, for he might well have supposed that Daniel might die without having had lawful issue. We think, therefore, that there can be no serious doubt that the intention was to limit the devise to heirs of the body. Daniel being thus a tenant in tail, one holding adversely to him for twenty-one years, would, as well according to the case of Baldrige v. M’Farland, 26 Pa. 388, as by virtue of the provisions of the 2d section of the act of the 13th of April, 1859, acquire title not only as against the tenant in tail, but also against the remaindermen or reversioners; and so the court should have instructed the jury.

As what we have said sustains the second and third assignments on Simon Hawk’s writ of error, we reverse the judgment and order a new venire. On the writ of A. E. Bassett the

Judgment is affirmed.