Lewis v. Link-Belt Co. , 222 Pa. 139 ( 1908 )

Opinion by

Mr. Chief Justice Mitchell,

It is notable that an act making so serious a change in the previous law has received so little attention as the Act of July 9, 1897, P. L. 213. It entirely changes the presumption which formerly was in favor of an indefinite failure of issue and substitutes a statutory presumption that, in the absence of words indicating contrary intent, a definite failure is to be presumed. Its language is: “Section 1. Be it enacted, etc. That in any gift, grant, devise, or bequest of real or personal estate, the words ‘ die without issue ’ or £ die without leaving issue ’ or £ have no issue,’ or any other words which may import either a want or failure of issue of any person in his lifetime, or at the time of his death, or an indefinite failure of his issue, shall be construed to mean a want or failure of issue in the lifetime, or at the death of such person, and not an indefinite failure of his issue, unless a contrary intent shall appear by the deed, will or other instrument in whiph such gift, grant, devise or bequest is made and contained.” This is in accordance with the actual intent in the vast majority of cases and is a legislative step in the direction in which this court has been tending, to restore to its proper place the cardinal rule that actual intent is to prevail.

A strong argument was made to show that even under the old rule the intent here was to give the first taker only an estate for life. This is now supplemented by the statutory presumption and leaves no room for question.

The attention of the learned court below unfortunately was not called to this act.

Judgment reversed.