Jordan v. McClure

Mr. Justice Swarswood

delivered the opinion of the court, January 7th 1878.

If the instrument of writing, dated May 6th 1819, by which James Nicholson conveyed the land, of which the premises form a part, to Pompey Frazier, Tamer Frazier and Betty Mathers, falls within the principle of Turner v. Scott, 1 P. F. Smith 126, it was a testamentary disposition, revocable, and revoked by the subsequent will of October 10th 1828. By this will the tract was devised, after the death of the testator’s widow, to whom an estate for life was given, to the same persons, Pomp, Tamer and Betty, to “ stand sure to them and their heirs, with all the buildings and improvements thereon, and when any one dies the living ones must heir their share of all property I give them.” We are of the opinion that, upon the proper construction of this devise, it gave to the devisees an estate in fee, as tenants in common, under the operation of the Act of 31st March 1812, with an executory devise over to the longest liver of them: Neave v. Jenkins, 2 Yeates 414; Coates’s Street, 2 Ashm. 12; Rapp v. Rapp, 6 Barr 45; Nicholson v. Bettle, 7 P. F. Smith 384. Such being the case, the deed March 19th 1840, of the then survivors, Pomp and Betty, conveyed the fee to McClure. It is true that the survivor was not then ascertained, but it would necessarily be one or the other of them. Nothing is better settled than that, though a conveyance of an expectancy as such is impossible at law, it may be enforced in equity as an executory agreement to convey, if it be sustained by a sufficient consideration: Bayler v. Commonwealth, 4 Wright 37. Upon the death of Pomp, a chancellor would have decreed a conveyance by Betty to McClure. But equity is part of the law of Pennsylvania, and our courts invariably consider that as actually done which a chancellor would decree to be done. Betty, then, at the time of her death, was seised of no estate which she could transmit to her children.

But let us concede that the instrument of May 6th 1819 is distinguishable from that in Turner v. Scott, supra, that it was not a will but an irrevocable grant: Eckman v. Eckman, 18 P. F. Smith 460. It conveys to Pomp, Tamer and Betty, the premises “ for their own use during their natural life, and afterwards to their lawful, if they have any, and if not lawful issue remains after their deaths, the above described land shall revert to the lawful heirs of James Nicholson, and the said Pomp, Tamer and Betty Mathers are to take possession of said tract of land immediately after the decease of the said James Nicholson and Mary his wife, and not before, then to have full possession one or more of them during their natural life and the life or lives of their lawful issue, which land by them, or any one or more of their lawful issue shall not be allowed to rent or dispose of in any way or manner whatsoever.”

If this instrument were a will and to be construed according to the principles applied in such cases, there would be great reason for holding the limitation to be that of an estate tail to Pomp, Tamer and Betsy. But it is a deed and the word “ issue” will not supply the want of the word “ heirs” in a deed: 2 Black. Com. 115. Lord Coke tells us, on the authority of Littleton, that if a man giveth land to a man et exitibus de corpore suo, legitime procreatis or semine suo he hath but an estate for life, for that there wanteth words of inheritanceCo. Lit-t. 20 b.

Taking the entire clause together we are of the opinion that it granted an estate for their lives to Pomp, Tamer and Betty, with a remainder to their children for their lives. This was of course a contingent remainder to the children, as there were none then in being. The reversion in fee was vested in James Nicholson, for a limitation to the right heirs of the grantor continues in him as the old reversion: Eearne on Oont. Rem. 50. James Nicholson devised this reversion after the death of his widow to Pomp, Tamer and Betty in fee, subject as we have seen to an executory devise over to the survivor. When it vested in them a merger of their life estate held under the deed immediately took place — of the lesser into the greater estate. No children of Pomp, Tamer and Betty had been then born — the life estate to them in remainder was still in contingency. It was destroyed by the merger, a familiar and well-settled principle: Fearne on Cont. Rem. 328. The life estate in remainder was left without any particular estate to support it and it fell. The deed to McClure then passed t.o him the fee.

Thus we conclude that quacunque via data, whether the instrument of May 6th 1819 be regarded as a will or as a deed, the title to the premises was in the defendant below.

Judgment affirmed.