Kemp v. Reinhard

Opinion by

Mr. Justice Brown,

The testatrix gave to her son, Jacob E. Kemp, the use and income of seven enumerated properties “for and during his lifetime.” Immediately after this provision for him there is the following separate clause in the will: “And immediately after the decease of the said Jacob E. Kemp, I give and devise the above described seven tracts or pieces of land, devised to him herein for life, to his issue in fee. Should he however die without leaving issue living, I give and devise the same unto my son, Pierce G. S. Kemp, his heirs and assigns in fee.” The judgment of the court below on the case stated to determine whether the appellant had a fee simple in the properties was that he took but a life estate and that the testatrix had herself devised the remainder to the stock of a new inheritance, who, upon his death, would take from her as purchasers.

Though the intention of the testatrix may have been to give only a life estate to the appellant, if in the devise there was a limitation of the estate to his heirs to take by devolution from him at his death, her intention is overridden by the rule in Shelly’s case; but in every case in which the application of that rule is involved the first question is whether the devisor or grantor intended a limitation of the remainder in fee or in tail as such to the heirs of the first taker, or that there should be the root of a new succession taking directly from the devisor or grantor as purchasers. When the latter intention appears the rule has no place and the intention must be given effect.

The rule in Shelly’s case is not a means of ascertaining the intention of a testator, nor is it one of the construction of a will. It is one of law, unbending in its application, when the intention of the testator is ascertained that the heirs of his devisee of a freehold estate are to take from the devisee qua heirs. When such intention is ascertained the heirs take by descent from the devisee, and there is, therefore, vested in him an estate of inheritance: Doebler’s App., 64 Pa. 9; Shapley v. Diehl, 203 Pa. 566. “It is therefore always a precedent question, in any case to which it is supposed the rule is applicable, whether the limitation of the remainder is made to the heirs in fee or in tail, as such, and in solving this question, the rule itself renders no assistance. It is silent until the intention of the grantor or devisor is ascertained. But if that intention is found to be that the remainder-men are to take as heirs of the grantee or devisee of the particular freehold, instead of becoming themselves the root of a new succession, the rule is applied, though it may defeat a manifest intention that the first taker should have but an estate for life. It is very carefully to be noted, that in searching for the intention of the donor or testator, the inquiry is not whether the remainder-men' are the persons who would have been heirs, had the fee been limited directly to the ancestor. The thing to be sought for is not the persons who are directed to take the remainder, but the character in which the donor intended they should take. In the very many cases in which the question has arisen, whether the rule was applicable, the difficulty has been in determining whether the intention was that the remainder-men should take as heirs of the first taker, or originally as the stock of a new inheritance:” Guthrie’s Appeal, 37 Pa. 9.

That the testatrix intended to devise a life estate to her son, and nothing more, most clearly appears. The devise is to him “for and during his lifetime,” and this intention is repeated in the clause following the description of the properties, in which she refers to them as “devised to him herein for life.” This twice-expressed intention receives emphasis from a comparison of the devises to Jacob with those to her other son Pierce. Those to the latter are to him, “his heirs and assigns;” and still further emphasis comes from the residuary clause of the will, in which the residue of the estate of the testatrix is given to her two sons, Pierce and Jacob E., “their heirs and assigns in equal shares.” But what defeats the application of the rule in Shelly’s case is the unmistakable intention of the testatrix, not only that Jacob was to get only a life estate, but that after his death the remainder should not pass by devolution from him to his heirs, but directly from her to a designated class or to a designated individual. Her words are: “After the decease of the said Jacob E. Kemp, I give and devise the above described seven tracts or pieces of land, devised to him herein for life, to his issue in fee. Should he however die without leaving issue living, I give and devise the same unto my son, Pierce G. S. Kemp, his heirs and assigns in fee.” From a reading of the entire will the conclusion is not to be avoided that the testatrix had two independent thoughts in her mind when she devised the seven properties: First, that she would give them to Jacob for life, and for life only; and she did so give them to him: and, second, that she would pass the remainder to be enjoyed by devisees from her, and she did so pass it in her words just quoted. As the remainder in these properties will pass to the issue of Jacob, or to Pierce, as purchasers from the testatrix, the rule in Shelly’s case has no place in this controversy, and the learned and discriminating judge below correctly so held.

Judgment affirmed.