Blair v. Shannon , 349 Pa. 550 ( 1944 )

I cannot assent to the conclusion of the majority of this Court. The issue raised on this appeal is whether the provision of the will that "Whatever is realized out of the three foot vein of coal for which I gave a lease some years ago, I direct my executors to collect and divide the same among my eight children share and share alike" is effective and vests any rights in appellants as tenants in common with appellees.

Whether the coal was real estate or personalty is immaterial to a disposition of this case. Unquestionably, it was real estate at testator's death. Upon execution of the lease for a term the law created a possibility of reverter in said coal:Smith v. Glen Alden Coal Co., 347 Pa. 290, 302. This purely contingent right existed in testator during the term, and, had he died during said term, in his heirs at law. The majority opinion erroneously calls this possibility of reverter a "contingent right of reentry upon condition broken." These contingent interests are not identical and rights arising therefrom are entirely distinct. A right of reentry for condition broken is created by act of the parties; a possibility of reverter is created by operation of law. The former arises only when a condition in a deed, grant, or devise has been broken, thereby giving rise to a cause for forfeiture of the estate. A reentry upon the land must be made by the grantor or his heirs before the grantee's estate is divested. In the latter, where the estate terminates by normal expiration the law returns the original estate to the grantor or his heirs. No act is required by him; he need not enter into actual possession, as in the case of a re-entry for condition broken:Lyford v. City of Laconia, 75 N.H. 220, 72 A. 1085, 1089;Tiffany, Real Property, 3rd ed., Section 314, p. 9; Thompson,Real Property, Section 2116, p. 663. Upon the normal expiration of the term of the lease in question Shannon became seized in fee of the coal as fully as if no lease had ever been executed. That there was also a condition subsequent in the lease — nonpayment of rents or royalties — the breach of which created a cause for forfeiture and the right to terminate the lessee's estate by reentry for condition broken is of no effect in this case; no re-entry was ever made to effect the forfeiture. That the coal is real estate as of the date of testator's death resulted by operation of law and not reentry for condition broken.

That there can be a severance of the minerals from the surface and two distinct estates created by the provisions of a will is well established: Hyde v. Rainey, 233 Pa. 540, 545;Christy v. Christy, 162 Pa. 485. These estates may be created by implication as well as express words: Christy v. Christy, supra, 492.

This will must be read "to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention [appears] by the will": Act of 1917, P. L. 403, Section 9, 20 P. S. Section 221. Since the vein of coal was real estate at the time of Shannon's death and twelve days prior thereto, he must have intended it to pass under paragraph ten of his will; otherwise, a change therein would have been made by him. Where a will is being construed, all words therein must be considered and given effect if possible: Lochrie's Estate, 340 Pa. 145, 151. Construction is favored which will give operative effect to every word of the will rather than one which makes some words idle and negative:Duffy's Estate, 313 Pa. 101, 108; Greenawalt's Estate, 343 Pa. 413,417; Calder's Estate, 343 Pa. 30, 37-8. A testator will not be presumed to have used language not intended to be effective.

The majority opinion fails to recognize that "The description [of the property] may be so broad that it fits equally the right as it existed when the will was made, and the right as it exists when testator dies": Page, Wills, Vol. 4, p. 378. The right has not changed, although the quantum of the testator's interest has. Testator did not use the word "lease" in a technical sense, but merely asdescriptive of the vein of coal, the proceeds of which he gaveto all his children, share and share alike. Testator's language expressly described and identified the thing bequeathed or devised. This case is governed by Hyde v. Rainey, supra. What was there said is controlling here (p. 548): ". . . it was the intention of [testator] to give the proceeds of the minerals to [his eight] children . . . share and share alike, and this is equivalent to a devise of the absolute estate in these minerals to them."

The majority opinion speaks of ademption. "In modern law the term ademption has two distinct meanings. It is used with reference to the act of the testator in paying, to the legatee, in the lifetime of the testator, a legacy which the testator has given to the legatee by will, or in satisfying such legacy by giving, in place thereof, something of value":Page, op. cit. supra, p. 355. "Unfortunately, the term 'ademption' is also used to indicate the loss of the legacy by the loss or destruction of the subject-matter in the lifetime of the testator, or by the loss, transfer, or termination of the testator's interest therein before his death": Page, op. cit. supra, p. 356. Clearly, this theory of the law has no application to this case. The gift here remains the same. All that appellants were entitled to receive had testator died prior to the termination of the lease were the proceeds of the coal. What they are now entitled to receive are the proceeds of the coal. "In order to carry out this intention the power to sell or lease is necessarily implied . . . as an unlimited gift of the proceeds vests in the beneficiaries an absolute estate in the corpus from which the proceeds arise. . .": Hyde v.Rainey, supra, 548. It is clear that testator intended all his children should receive the proceeds of the vein without regard to its status, whether it be real estate or personalty. UnderHyde v. Rainey, supra, he assured their enjoyment of the same, whether he survived the term of the lease, or died prior to its termination. Any other disposition of this case does violence to the intention of testator and completely disregards the plain words of the will and is a strained construction. This Court cannot take such liberties with the plain words of the testator. Our function is not to rewrite a will (Davis'sEstate, 346 Pa. 247, 251; Friedheim's Estate, 344 Pa. 542, 544) but to see that in furtherance of justice the plainly declared intention of the testator is carried out.

I would reverse the decree of the court below and remand the record to said court for further proceedings consistent with this opinion.