Curtis et al. v. Longstreth

• Decision Date: 23 February 1863
• Citation: 44 Pa. 297
• Parties: Curtis <I>et al. versus</I> Longstreth.
• Court: Pennsylvania Supreme Court

44 Pa. 297

Curtis et al. versus Longstreth.

Supreme Court of Pennsylvania.

February 23, 1863.

CERTIFICATE from the Court at Nisi Prius.

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J. Cooke Longstreth, for plaintiffs in error, argued that the devise of the Front street property is in form a devise of a life estate, coupled with the expression of the testator's will, that the property is not to be sold or exchanged during the life of tenant for life. The estate is in form a remainder for life after the expiration of a precedent estate for life, and therefore one to which the term used by the testator in giving the remainder, to wit, the word "grant," is peculiarly applicable. The word "devise," as of universal application to all testamentary dispositions of lands or interests therein, may, for the purposes of this investigation, be rejected as giving no clue to the quantity of estate intended. But the estate, after Malcolm McNeran's death, is to vest in his heirs as tenants in common; but should he die without issue, then the said property to descend to testator's surviving heirs. The word "heirs" evidently does not mean heirs general, for it is qualified by the limitation over in the event that grantee die without issue. Does it mean heirs special taking by limitation?

1. The case seems to fall within the third proposition, as to the application of the rule in Shelly's Case, as stated by Mr. Smith in his work on Executory Interests, sec. 479. This case, though within the general proposition, does not fall literally within either the 4th or 5th clauses, in which the word "heir" is explained, and divested of its usual meaning; sec. 488; but does it not substantially? There are no superadded words of limitation to the heirs and assigns of the heirs of Malcolm McNeran, nor is the limitation over in the form stated in the 5th clause. The object of the superadded words of limitation and of the limitation over, respectively, however, being only to explain the sense in which the distributive words are to be taken, it would seem that a general limitation over, except on indefinite failure of issue, should have the same effect as a limitation over, to take effect within or at the end of a given time.

2. Do the words in this will import an indefinite failure of issue? We find, 1st. That there is an express limitation on the power of Malcolm McNeran to sell or exchange the property while he lives. 2d. That the time at which the estate is to vest in his "heirs" is fixed as the time of his death. 3d. That such persons as are then to take as heirs, are a class who are to take distributively, and consequently must be ascertained at the time when the estate is to vest in them. The words "but should he die without issue," although ordinarily words of technical significance, and sufficient of themselves to enlarge an estate for life, into an estate tail, seem in this case to import only the contingency on which a remainder is limited. And this, not only for the reasons heretofore alluded to, but for the additional one that the remainder over is not to the heirs of the testator generally, but to his "surviving" heirs. Giving every word of this clause then its proper force, and eliminating all that is immaterial to the determination of the quantity of estate that passed to Malcolm McNeran under it, it is submitted that it creates an estate for life in Malcolm McNeran, remainder in fee to his children as tenants in common, and that, by necessary logical deduction, it is brought directly within the ruling of this court in Guthrie's Appeal, 1 Wright 9.

The devise of the Mead alley property is free from the difficulty incident to the use of the word "heirs," the remainder being in terms to the children of the devisee, share and share alike. It is therefore unnecessary to endeavour to prove that children is used as a word of purchase, when the law infers that it is, and casts the onus of proving the contrary on the other side.

A. Thompson, for defendant in error, contended that it was a settled rule in case of devise of real estate, that if it be made to one for life, or in fee, and he die without issue, or without leaving issue, or for want of issue, then over to another in fee, the estate of the first taker is in tail, which estate is created solely by the implication arising from the words "dying without issue," &c.: Shoofstall v. Powell, 1 Grant's Cases 19; Steacy v. Rice, 3 Casey 75; Price v. Taylor, 4 Id. 95; McKee v. McKinley, 9 Id. 92.

If a devise be made to one, as above, the estate of the first taker is an estate tail, which, if he has issue, passes to them, ad infinitum, by descent as tenants in tail.

The estate vests in the first taker, fully and to all intents and purposes as a fee tail, and any devise over, after the failure of such, must of course be after an indefinite failure of issue, and void as an executory devise. It is good as a vested remainder, subject to be barred by a fine, or recovery, or deed, executed by the tenant in tail, under the Act of Assembly: Clark v. Baker, 3 S. & R. 470; Eichelberger v. Barnitz, 9 Watts 447.

In Wild's Case, 6 Reports 17, lands were devised to a person and his children. He had no child at the time of the devise. Held, the parent took an estate tail. See also 1 Ventris' Rep. 229.

Malcolm McNeran, the devisee, was unmarried, both at the making of the will and the death of the testator. The testator intended that the limitation over should not take effect till future generations, and where there is a limitation over of real estate on a dying without issue, generally such expressions ought to be construed an indefinite failure of issue, and the limitation over held to be too remote.

If the words, "if he should die without issue" should be construed to be after a general failure of issue, the devise over cannot take effect, as a fee cannot be limited upon a fee, and the contingency would be too remote, and tend to a perpetuity.

If an estate be given in fee or for life, without any particular limit as to its duration; if it be followed by a devise over in case of the devisee dying without issue, the devisee will take an estate tail: Mackell v. Weeding, 8 Sim. 4; Stanley v. Lennard, 1 Eden 87; Doe v. Halley, 8 Term Rep.; Attorney-General v. Sutton, 1 P. Wms. 759; 2 Bro. C. R. 119.

A devise to one for life, and after his decease to the issue of his body, and for want of such issue to another and his heirs, held to be a fee tail: King v. Mi...