Haldeman v. Haldeman

• Decision Date: 24 July 1861
• Citation: 40 Pa. 29
• Court: Pennsylvania Supreme Court
• Parties: Haldeman <I>versus</I> Haldeman.

40 Pa. 29

Haldeman versus Haldeman.

Supreme Court of Pennsylvania.

July 24, 1861.

ERROR to the Common Pleas of Lancaster county.

COPYRIGHT MATERIAL OMITTED

Thaddeus Stevens and Thomas E. Franklin, for plaintiff in error.—That the whole of the clause in the will of deceased taken together indicates a clear intention to invest three-sixths of the residuary estate in the executors during the lives of his three daughters respectively, in trust to pay to each of them during her life one-sixth of the income or profit arising therefrom, and after her death to give it to her child or children, if more than one, share and share alike; and if either died without leaving lawful issue, then to direct that such share or portion should fall back again to the residue of his estate. That there was no entailment, because at her death the share was to be divided among her children, share and share alike. That the word "children" must, in this case, be construed according to its ordinary import as a word of purchase and not of limitation, and "dying without issue" to be referred to a definite period — the death of the daughter of testator: citing Gretton v. Howard, 1 Merivale 448; 6 Taunt. 94, reported in 1 E. C. L. R. 320; Bruce v. Bainbridge, 5 Moore; 2 Brod. & Bing. 123; 6 E. C. L. R. 43; Findlay v. Biddle, 3 Binn. 139; Abbott v. Jenkins, 10 S. & R. 296; Ellett v. Paxson, 2 W. & S. 418. They argued further that the general words in the first clause of the will, by which the estate was given, did not destroy the effect of the subsequent limitations, but were restrained by them, and limited the estate given to each of the daughters to an estate for life: Turbett v. Turbett, 3 Yeates 187. The Act of April 8th 1833, which provides that a devise of real estate shall pass testator's whole estate, marks this exception by enacting, "Unless it appear by a devise over, &c., that testator intended to devise a less estate." It is neither sound law nor good logic first to cut the clause of the will in two, and from the first section alone imply a fee simple on the presumed intent of the testator, and by force of the Act of 1833, and having established that, to destroy the second section and declare it inoperative and void as being inconsistent with the nature and quality of the estate given by inference in the first of the same clause of the will, contrary to the words and spirit of the exception contained in the Act of 1833. The right of a testator to carve a life estate out of the inheritance, and protect the latter from alienation by encumbrance by the grantor for loss, cannot be denied, and where this intention is manifest it should be carried out by the court.

J. C. Kunkle and H. M. North, for defendant in error, contended, that the estate taken by Susan under this will, is a fee simple, because as the words in the first paragraph prior to Act of 1855, would have made an entailment by that act, they are enlarged to an estate in fee, which cannot be restrained or controlled by the second paragraph — that if a trust is created by the will, it is without purpose, and she being sui juris, is entitled to the absolute control of the estate. The devise of the residue, to "all my children, share and share alike," would give to each an estate in fee: Morrison v. Semple, 6 Binn. 94; Foster v. Stewart, 6 Harris 23; Schriver v. Meyer, 7 Id. 87; Act of April 8th 1833, § 9. The reservation which follows vests in the executors no estate, is a mere suggestion for management, and if intended as a restraint on the devise, is inoperative: Reifsnyder v. Hunter, 7 Harris 41; Walker v. Vincent, 7 Id. 369; Hileman v. Bouslaugh, 1 Id. 353. The last sentence of the paragraph reduces the fee simple to a fee tail, which entailment is not prevented by the direction that at the death of the devisee, the property shall all go to the children, but makes it an estate tail general, descending to all the children generally of the first taker. Such estates are not included in the Intestate Act of April 8th 1833, regulating descents of real estate, and descend to the heirs generally, and not to the eldest son: Price v. Taylor, 4 Casey 95; Williams v. Leech, 4 Id. 89; Maurer v. Marshall, 4 Harris 380; Vaughan v. Dickes, 8 Id. 509; Amelia Smith's Appeal, 11 Id. 9; Braden v. Cannon, 12 Id. 168; Hansell v. Hubbell, 12 Id. 244; Rancel v. Cresswell, 6 Casey 158; Criley v. Chamberlain, Id. 161; Potts's Appeal, Id. 168.

They further argued that the limitation over, if "Susan die and leave no lawful issue," was founded on an indefinite failure of issue: Citing 4 Kent Com. 274; Braden v. Cannon, 12 Harris 171; Vaughan v. Dickes, 8 Id. 514; 2 Jarman on Wills.

Even if the devise over is in default of issue living at the death of Susan, it would be an estate tail general: Price v. Taylor, 4 Casey 107. If a fee tail before the Act of 1855, it is now by that act a fee simple.

The daughters' shares are not given to the executors in trust, but only for the purpose of settlement.

The opinion of the court was delivered, July 24th 1861, by STRONG, J.

By the clause in his will devising the residue of his estate, the testator gave to his sons a fee simple. But it is clear that he did not intend to place his daughters precisely upon the same footing. True, there are general words of devise to all his children. They are coupled, however, with a reservation as to the shares of the daughters. The rents, issues and profits of each of those shares are given to the daughter for her natural life, and after her death, the share is required to descend to her child, and if children, to them share and share alike. The will then directs that if either of the daughters should die and leave no lawful issue, the property shall fall back into the residue of the estate. The beneficial interest is thus limited to each daughter for her natural life. It is not, as was supposed in the court below, the case of a gift in fee, with a subsequent attempt to take away some of the qualities of a fee, or to direct the manner of its enjoyment. This will, like all others, must be construed, with every part of it in view, and so as to give effect to the testator's whole intention, unless it be in part contrary to law, or impossible. The construction given by the court below ignores no inconsiderable portion of the testator's language. Although it is true that a testator, after having given a fee simple, cannot denude it of its nature and properties; in other words, cannot make a fee something else than that which the law recognises as such, yet he may devise a less...