Chambers v. Union Trust Co.

• Decision Date: 08 April 1912
• Docket Number: 306
• Citation: 84 A. 512,235 Pa. 610
• Parties: Chambers, Appellant v. Union Trust Company
• Court: Pennsylvania Supreme Court

84 A. 512

235 Pa. 610

Chambers, Appellant v. Union Trust Company

No. 306

Supreme Court of Pennsylvania

April 8, 1912

Argued February 7, 1912

Appeal, No. 306, Jan. T., 1911, by plaintiffs, from judgment of C.P. Bucks Co., May T., 1910, No. 6, for defendants on case stated in suit of Hannan H. B. Chambers et al., suing for themselves and the heirs of William Barnsley, deceased v Union Trust Company of Pittsburg, Guardian of George T Barnsley, Jr., a minor and Susa G. J. Barnsley. Reversed.

Ejectment for real estate in Warminster township.

Case stated to determine title to real estate.

The facts are stated in the opinion of the Supreme Court.

The court in an opinion by STAPLES, P.J., specially presiding entered judgment for defendants on case stated.

Error assigned was in entering judgment for defendants on case stated.

John G. Johnson, Yerkes, Ross & Ross and R. O. Moon, for appellants. -- Under the settled decisions of this court, the devise "to my nephew Joseph Barnsley and to his children," is identical with one "to my nephew Joseph Barnsley for life with remainder to his children in fee simple:" Shirlock v. Shirlock, 5 Pa. 367; Hague v. Hague, 161 Pa. 643; Crawford v. Forest Oil Co., 208 Pa. 5; Elliott v. Diamond Coal & Coke Co., 230 Pa. 423.

The rule in Wild's case has no application in Pennsylvania, in a devise like that of Joseph Barnsley, even though there are no children in existence at the death of the testator, because the reason upon which it rests, fails under the different interpretation of such a devise in Pennsylvania: Seibert v. Wise, 70 Pa. 147; Cote v. Von Bonnhorst, 41 Pa. 243; Taylor v. Taylor, 63 Pa. 481.

The word "children" being a word of limitation and there being a vested remainder in children born before the death of Joseph Barnsley, as they are born, the words "in case he should die without legal issue" are under the decisions, to be interpreted as referring to a definite failure of issue: Sheets' Est., 52 Pa. 257; Powell v. Board of Domestic Missions, 49 Pa. 46; Fetrow's Est., 58 Pa. 424; Daley v. Koons, 90 Pa. 246; Beckley v. Riegert, 212 Pa. 91; West v. Vernon, 215 Pa. 545.

Montgomery Evans, with him John M. Dettra and J. S. Christy, for appellees. -- The appellees contend: That by the devise to Joseph Barnsley and to his children, but in default of issue, then over, the testator intended the estate to descend through the lineal descendants of the first taker until they became extinct and the rule in Shelley's case applies, and that Joseph Barnsley, devisee, took an estate tail, enlarged by the Act of April 27, 1855, P.L. 368: Stoner v. Wunderlich, 198 Pa. 158; Grimes v. Shirk, 169 Pa. 74; Pifer v. Locke, 205 Pa. 616; Campbell's Estate, 202 Pa. 459; Hollowell v. Phipps, 2 Wharton, 376; Haldeman v. Haldeman, 40 Pa. 29; Vilsack's Estate, 207 Pa. 611; Beilstein v. Beilstein, 194 Pa. 152; Dilworth v. Schuylkill Imp. Land Co., 219 Pa. 527.

The rule in Wild's case applies: Graham v. Flower, 13 S. & R. 439; Sholfield v. Zehmer, 6 Watts 101; Ellet v. Paxson, 2 W. & S. 418; Cote v. Von Bonnhorst, 41 Pa. 243; Coursey v. Davis, 46 Pa. 25; Taylor v. Taylor, 63 Pa. 481; Seibert v. Wise, 70 Pa. 147; Wolford v. Morgenthal, 91 Pa. 30; Kennedy v. Humes, 15 W.N.C. 508; Braden v. Cannon, 24 Pa. 168; Cressler's Est., 161 Pa. 427.

"Death without issue," etc., means death of the first taker before that of the testator and if the first taker survives the testator, he takes an indefeasible estate: Hogg's Estate, 27 Pa. Superior Ct., 428; Mickley's App., 92 Pa. 514; King v. Frick, 135 Pa. 575.

Before FELL, C.J., MESTREZAT, POTTER, ELKIN and MOSCHZISKER, JJ.

OPINION

MR. JUSTICE MOSCHZISKER:

The matter here for decision is the question of the proper interpretation of the following provision contained in the will of Joseph Barnsley: "Item. I give and devise my farm (devised by my father to me) to my nephew, Joseph Barnsley and to his children; but in case he should die without legal issue, then it is to go to the heirs of my father, as directed by the intestate laws of Pennsylvania; subject, nevertheless, to the yearly payment of one hundred dollars to my sister, Mary Ann Barnsley, during her life."

The testator died January 12, 1888. Mary Ann Barnsley, the annuitant, died January 16, 1889. Joseph Barnsley, the devisee, entered into possession of the farm in the year 1888 and retained the same until October 11, 1909, when he died unmarried and without children, no issue ever having been born to him. He left a will in which he devised all of his property. The plaintiffs claim as the heirs of William Barnsley who was the father of the testator, and the defendants under this will of the testator's nephew and devisee. In a well stated opinion, after reviewing various authorities, the learned Court below determined the case thus: "Invoking either the rule in Shelley's case, or the rule in Wild's Case, we are of the opinion that the word 'children' was a synonym for 'heirs of his body,' and that the devise being 'immediate' and there being no children to take, the farm was devised in tail and this is enlarged by the Act of April 27, 1855, P.L. 368, into an estate in fee. * * * In accordance with the foregoing reasons * * *, judgment is entered for the defendant for the whole of the above described property." The plaintiffs have appealed.

In Graham v. Flower, 13 S. & R. 439, it is stated: "In Wild's Case, 6 Coke, 16b, this distinction is taken: (1) 'If A devises land to B and to his children or issues, and he hath not any issue at the time of the devise, the same is an estate-tail, for the intent is manifest and certain, that his children or issue should take, and as immediate devisees they cannot take, because they are not in rerum natura, and by way of remainder they cannot take, for that was not his intent, for the gift is immediate; therefore, then, such words shall be taken as words of limitation. (2) But if a man devises land to A and to his children or issue, and he then has issue, his express intent may take effect, according to the rule of the common law, and no manifest and certain intent appears to the contrary; and therefore, in such case, they shall have but a joint-estate for life.'" In the case just cited, and in Shirlock v. Shirlock, 5 Pa. 367, the second resolution of the rule was followed, and it was decided that living children take immediately with their parent. The resolutions are mentioned in Ellet v. Paxson, 2 W. & S., 418, 434; Cote v. Von Bonnhorst, 41 Pa. 243, 251; Myers's Appeal, 49 Pa. 111, 114; Taylor v. Taylor, 63 Pa. 481, 488; Seibert v. Wise, 70 Pa. 147, 150; Cressler's Estate, 161 Pa. 427, 434; Oyster v. Orris, 191 Pa. 606, 609; but in none of these cases does the decision rest upon the rule in question. In Coursey v. Davis, 46 Pa. 25, we decided that a grant to a woman and her children vested in her a life-estate with remainder in fee to the children as a class, so that those in being at the date of the deed, as well as those subsequently born, would be entitled to take in the distribution, on the termination of the life estate at the death of the mother. In Hague v. Hague, 161 Pa. 643, we determined a gift to "Sarah Jane Hague and her children" to be a life-estate in the mother with remainder in fee to the children as a class; thus in effect overruling the earlier cases which held the mother and children to be tenants in common, and expressly announcing that Shirlock v. Shirlock, supra, "cannot now be regarded as authority." In Crawford v. Forest Oil Co., 208 Pa. 5, a devise to a son "and to his children" was construed to vest a life estate in the former and an estate in remainder in the children living at the testator's death, subject to open and let in after-born children. In Elliott v. Diamond Coal and Coke Co., 230 Pa. 423, a devise to a daughter "To have and to hold unto my said daughter and her children forever" was held to vest an estate for life in the daughter, remainder in fee to the children as a class. Finally, In Vaughan's Estate, 230 Pa. 554, a life-estate was given to a wife, at her death one-third of the property was given to a trustee to hold for a daughter, "for her and her children's sole use and benefit;" held, that the daughter took a life-estate with remainder to her children in fee.

In all of the cases just referred to children were living at the death of the testator, so we may take it as firmly established that the second resolution in Wild's case is not the law in Pennsylvania. But the question arises does the first resolution apply when there are no children? Although several of the cases to which we have already referred apparently indicate that this court has recognized the first resolution, yet in none of them have we had occasion actually to apply it in order to rule the matter before us for decision. In fact, this appears to be the first instance where a case has been presented without children in being to take. After an exhaustive examination of the authorities and much thought, we are brought to the conclusion that the resolution does not control under such circumstances, for the reason upon which it rests fails because of the different interpretation which we place upon a devise to a parent and children. Under the second resolution in Wild's case, as...