Clark v. Scott

• Decision Date: 06 February 1871
• Citation: 67 Pa. 446
• Parties: Clark <I>et al. versus</I> Scott.
• Court: Pennsylvania Supreme Court

67 Pa. 446

Clark et al. versus Scott.

Supreme Court of Pennsylvania.

February 8, 1871.

February 6, 1871.

February 8th 1871.

Before THOMPSON, C. J., AGNEW, SHARSWOOD and WILLIAMS, JJ. READ, J., at Nisi Prius

Certificate from Nisi Prius: No. 434, to January Term 1871.

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A. L. Smith, for plaintiffs in error.—"Heir" has always its full technical signification unless controlled by language showing a decided intention to vary such meaning: Campbell v. Jamison, 8 Barr 498. The whole force and direction of this devise and bequest must be derived from his will alone. We cannot look to the predeceasing devisees for anything. Our Statute of Wills gave them no control over a mere possibility like this: 1 Greenl. Cruise Dig. tit. Devise, ch. viii., § 23, n. 2; Schiefflein v. Kessler, 5 Rawle 115; Baskin's Appeal, 3 Barr 304; Baines v. Ottey, 1 Myl. & K. 465; Bridge v. Abbot, 3 Bro. C. C. 224; Jennings v. Gallimore, 3 Ves. 146; Long v. Blackall, Id. 486; Holloway v. Holloway, 5 Id. 399; Vaux v. Henderson, in note to Houseman v. Abbey, 1 Jac. & Walk. 388; Gittings v. McDermott, 2 Myl. & K. 69; Jacobs v. Jacobs, 16 Beav. 557. Where the word is simply "heirs" or "heir at law," the bequest of personalty may pass to the technical heir in preference even to the next of kin: Gwynne v. Muddock, 14 Ves. 488; In re Newton's Trust, 4 Eq. Cas. 171; De Beauvoir v. De Beauvoir, 3 House of Lords, Cas. N. S. 524; In re Porter's Trust, 4 K. & John. 188; Daniel v. Dudley, 1 Phill. 1; Mackenzie v. Mackenzie, 3 MacNaugh. & Gord. 559; Chapman v. Chapman, 33 Beav. 556; Long v. Watkinson, 17 Beav. 471; Palin v. Hills, 1 Myl. & K. 470; Johnson v. Johnson, 3 Hare 157; Ware v. Fisher, 2 Yeates 578; Miller's Appeal, 11 Cas. 323; Gibbons v. Fairlamb, 2 Id. 217; Eby's Appeal, 14 Wright 311; Id. 201; Physick's Estate, 2 Phila. R. 178.

H. Wharton, for defendant in error.—The mere expression of the testator's intention that the devises and bequests made by him should not lapse by the death of a legatee or devisee in his lifetime, would have been inoperative: 1 Jarm. on Wills 294; Sibley v. Cook, 3 Atk. 572; Elliot v. Davenport, 1 P. Wms. 83; Toplis v. Baker, 2 Cox Ch. C. 121; 2 Wms. on Ex'rs. 1088; Sloan v. Hanse, 2 Rawle 28. A substitutionary gift made to the executor of a legatee, without more, may be construed,

(1.) Either the executor would take beneficially;

(2.) Or as trustee for the next of kin;

(3.) Or, finally, as trustee for the uses and purposes of the will.

1. The first is untenable, except in special cases: Evans v. Charles, 1 Anstruther 128; Price v. Strange, 6 Madd. 161; Wellmore v. Bowring, 1 Sim. & Stuart 24; Marshall v. Collett, 1 Younge & Coll. 239; Long v. Watkinson, 17 Beav. 471; 2 Williams on Executors 1029.

2. The second is supported only by Palin v. Hills, 1 Myl. & K. 470; Bridge v. Abbot, 3 Brown's C. C. 224. Palin v. Hills is now overruled: Collier v. Squire, 3 Sim. 328; Daniel v. Dudley, 1 Phill. 1; Attorney-General v. Malkin, 2 Id. 64; Allen v. Thorp, 7 Beav. 72; Morris v. Howe, 4 Hare 599; Long v. Wilkinson, 17 Beav. 473; Holloway v. Clarkson, 2 Hare 521; Hewitson v. Todhunter, 22 L. J. Ch. 76; 15 Eng. L. and E. 396; 2 Williams on Executors 1029; Gibbons v. Fairlamb, 2 Casey 218.

3. The remaining alternative, that the legacy goes to the executor, not indeed as part of his testator's estate, but to be administered as if it were, is therefore the one to be adopted.

The opinion of the court was delivered, February 6th 1871, 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 the 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 — hœredes 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 devisee of the predeceased devisee must therefore take in his character of devisee of the...