Clark v. Scott

The opinion of the court was delivered,

by Sharswood, J.

The testator, Thomas P. Ash, after devising his residuary estate, real and personal, to several persons, declared that in case of the death of either of them before him, the devise or bequest should not lapse, “ but shall go to and be taken -by the heirs, executors or administrators of said legatees or devisees so dying, in the same manner as if the same had been specifically devised.”. He was evidently aware of the distinction between real and personal estate. He has used throughout his will, the words, legally appropriate to each. All his-legacies of mere personalty are by th'e words “give and bequeath,” but when he comes to the residuary clause in which he blends both his real and personal estate, he is careful to use the words, “ give, devise and bequeath,” and adds a limitation to' “heirs, executors, administrators and assigns.” We may infer then that in the substituted gift for the lapsed devise, the word “heirs” was used in none other than its legal technical meaning. Apart, however, from this very important assistance at arriving at the true intention of the author of the disposition, it is a canon of construction settled in many cases, that the word “heirs” shall receive its appropriate technical sense, unless there is some language or expression which shows that it was used in the broader and more popular sense: Porter’s Appeal, 9 Wright 201; Eby’s Appeal, 14 Ibid. 311. In law the heirs of a man are those upon whom his lands of inheritance descend upon his death intestate. Popularly the word often includes devisees — the persons who are made heirs — hceredes facti. In the will before us it is plainly a word of purchase. It could not be otherwise, for by the very supposition of the death of the devisee before that of the testator, there was no estate in him in his lifetime to which the word could attach as a word of limitation. In this state when the word “heirs” is used as a word of purchase, it means ■“ statutory heirs” — those persons designated by the Intestate Act to take the estate not disposed of by last will and testament: Walker v. Walker, 4 Casey 40; Dodson v. Ball, 10 P. F. Smith 500; Aspden’s Estate, 2 Wall. Jr. 368.

It has been strongly urged, however, that as the word “ executors” is used the testator intended those who should be named in the last wills and testaments of his devisees. As we have no question in regard to personal estate before us, it is unnecessary to consider how the executors would take, whether as trustees for the next of kin as of an undisposed-of surplus, or for the uses of ' the will generally. We cannot consider that from his using the word “ executors” the testator meant by “ heirs” to include devisees. Indeed, the argument would rather seem the contrary. As he employed knowingly the terms “executors or administrators”, as to personalty, the inference would rather seem to be, that if he had meant it, he would have said “heirs or devisees.” , Undoubtedly the words are to be construed distributively — reddendo singula singulis, and so as “ executors or administrators” are applicable to the personal estate, “ heirs” standing by itself is the only term to be applied to the realty.

There are other reasons why, without express words indicating his intention, the testator in his substituted gift in the case of a lapse, ought not to be considered to have had reference to devisees. It is certain that no wills made by his devisees in their lifetime could have had any operation by their own force upon property not owned by them at the time of their decease. The devise'e of the predeceased devisee must therefore take in his character of devisee of the original or first testator. Hence, express words are necessary to designate him as th.e object of his bounty. But still further, non constat that the predeceased devisee would not have specifically devised this property if he had owned it when he made his will, and not have suffered it to pass by his residuary devise. In giving the property of Thomas P. Ash to the residuary devisees of Mary Ash and John Ash, it is really but a mere guess that if Mary Ash and John Ash had been the owners of the property devised to them by Thomas P. Ash at the time of their death, they would have allowed -it to pass by their general residuary devise. In fact the court is by construction making a will for them of this property. It is much better that the law should make the will; in other words, that the estate should go to those designated by the intestate laws as their heirs or next of kin.

In regard to the further question, whether the widow of John Ash is one of his “ statutory heirs,” entitled to her share under the intestate laws, we consider it' to be a question of so much doubt under the provisions of the Act of April 8th 1833, Pamph. L. 316, and the cases of Thomas v. Simpson, 3 Barr 60; Shaw v. Galbraith, 7 Id. 111; Seider v. Seider, 5 Whart. 208; Schall’s Appeal, 4 Wright 170; Helfrich v. Weaver, 11 P. F. Smith 384; Gibbons v. Fairlamb, 2 Casey 217, that a purchaser has a right to object to a title from the plaintiffs as not marketable, unless they shall procure from her a good and sufficient release of such estate or interest as she may be entitled to.

Judgment reversed, and now judgment for the plaintiffs, upon the case stated, upon their,procuring and delivering to defendant a good and sufficient release by Elizabeth L. Ash, the widow of John Ash, of all such estate or interest as she may have in the premises.