DocketNumber: No. 15
Citation Numbers: 61 Pa. 111, 1869 Pa. LEXIS 139
Judges: Agnew, Prius, Read, Sharswood, Thompson, Williams
Filed Date: 2/16/1869
Status: Precedential
Modified Date: 10/19/2024
The opinion of the court was delivered, July 6th 1869, by
John Crean, the elder, devised the real estate, the proceeds of which are in controversy, to Isaac Heylin, his heirs and assigns, in trust for the use of his son William, for life, and after his decease, in.trust for his children then living, and the lawful issue of such of them as should then be deceased, their respective heirs and assigns for ever, in equal parts and shares, such issue to take and receive such part and share only, as his, her or their deceased parents would have had and taken if then living, and for want of such children or lawful issue, then in trust for the use of his right' heirs for ever.
The testator’s son, William, died unmarried and without issue, and the question is, who are the persons entitled to the remainder as the right heirs of the testator? Are they the persons who were his heirs at his death ? or are they the persons who were his heirs at the death of his son William ? It is conceded that under the first limitation William took only an estate for life: Powell v. Board of Domestic Missions, 13 Wright 46; and that the remainder in fee limited to his children living at his decease, and the lawful issue of his children then deceased, was contingent or ex-ecutory. But whether the remainder limited to the heirs of the testator on the death of William without children, or issue of deceased children then living, is to be regarded as vested or contingent, has been greatly discussed, because of its important, if not decisive, bearing upon the question, whether the heirs at the death of the testator, or the heirs at the death of William, are entitled to the remainder. Perhaps the limitation to the heirs might be regarded as a vested remainder under the decision of this court in Etter’s Estate, 11 Harris 381, and its rulings in Kelso v. Dickey, 7 W. & S. 279; Hopkins v. Jones, 2 Barr 69; Minnig v. Batdorff, 5 Id. 503; Chew’s Appeal, 1 Wright 23; Ross v. Drake, Id. 373; Young v. Stoner, Id. 105. The rule is well settled that a remainder is to be regarded as vested, rather than contingent, if such a construction is possible. If it did not
Hor will the use of the word then, as introductory to the bequest or devise over after the death of the tenant or legatee for life, prevent the general rule from applying unless it is so used as clearly to indicate that the next of kin, or heirs living at the death of the tenant for life, are intended by the testator: Holloway v. Holloway, supra; Ware v. Rowland, 2 Phillips 639; Wharton v. Barker, 4 K. & John. 483. We see nothing in this will, or in the circumstances of the case, which qualifies the natural meaning of the words, and which clearly shows that the testator intended to limit the estate to those who should he his right heirs at the death of his son William. Certainly the use of the word then, as introductory to the limitation, does not indicate any such intention. The limitation is in these words: “ And for want of such child or children, or lawful issue, then in trust for the use and behoof of my right heirs for ever.” Obviously the word then is not used in this clause as an adverb of time, but as a conjunction, signifying in that case, in that event or contingency. If this be its meaning, there is nothing to prevent the general rule from applying, and the words must he construed as referring to the heirs of the testator at the time of his death. But the appellants rely upon the rule laid down by Redfield, in his Treatise on Wills, p. 393. He
This conclusion is reached after an elaborate examination of the authorities, and there is nothing in the facts of the case, or in the opinion of the court, which lends any countenance or sanction to the dictum of the able and learned author. If then, as we have endeavored to show, the general rule of construction must prevail in this ease, it follows that the testator’s heirs at his death, and not his heirs at the death of the tenant for life, are entitled to the remainder. This conclusion, though reached by a different process, is in substantial harmony with the decisions of this court in Etter’s Estate, 11 Harris 381, and Riehle’s Appeal, 4 P. F. Smith 97, in both of which there was a limitation over to the testator’s heirs on the death of the tenant for life without leaving children or issue surviving. In the former, it was held that the remainder vested in the heirs immediately on the death of the testator, and that the tenant for life was excluded by the express words of the will, “my surviving heirs hereinafter named;” in the latter, that the testator’s heirs who were living at his death, including the tenant for life, took the remainder under the limitation as an executory devise. But whether the limitation over to the testator’s heirs, in the event of the death of the tenant for life, without children living, is regarded as an executory devise, or a contingent remainder, will not affect or vary the rule of construction as it respects the heirs entitled to take. The limitation to the heirs must be construed to mean those who are such at the testator’s death, unless a different intent clearly appear. Whether, therefore, the remainder be
The appeal is dismissed, and the decree of the Orphans’ Court is affirmed at the costs of the appellant.
Nass's Estate , 320 Pa. 380 ( 1935 )
Stoler's Estate , 293 Pa. 433 ( 1928 )
Bechtel's Estate , 1925 Pa. Super. LEXIS 197 ( 1924 )
Lusk Estate , 354 Pa. 6 ( 1946 )
dauphin-deposit-trust-company-conway-h-olmsted-henry-c-olmsted-and , 324 F.2d 458 ( 1963 )
Barge's Estate , 126 Pa. Super. 332 ( 1937 )
Farmers Trust Co., Excr. v. Wilson Et Ux. , 361 Pa. 43 ( 1948 )