Hill v. Hill

• Decision Date: 02 July 1873
• Citation: 74 Pa. 173
• Parties: Hill v. Hill.
• Court: Pennsylvania Supreme Court

74 Pa. 173

Hill v. Hill.

Supreme Court of Pennsylvania.

July 2, 1873

May 23 1872

1. A devise was, " I give to Sarah and Nancy all the remainder of my real estate, to be divided equally, share and share alike. * * * It is my will that should my daughter Sarah die leaving no issue or child, that her share as above bequeathed to her shall fall back to my estate and be equally divided to Ann and Fanny, daughters of my son, and Ada and James, children of my daughter Nancy." Held, that Sarah did not take an estate so as to enable her to alien as a fee under the Act of 1855.

2. The words " issue" and " child," in this devise, are synonymous.

Before READ, C. J., AGNEW, SHARSWOOD, WILLIAMS and MERCUR, JJ.

Error to the Court of Common Pleas of Blair county: Of May Term 1873, No. 63.

This was an amicable action and case stated, in which Marcus D Hill and Sarah A. Hill his wife, in her right, were plaintiffs, and Ezra H. Hill was defendant. The action was instituted February 23d 1871.

The facts appearing by the case were as follows:--

Henry Lee, who died in or about April 1869, by his will dated in January of that year and proved in the succeeding April amongst other things devised as follows:--

" I give and bequeath to my daughter, Sarah Ann, wife of Marcus Hill, and Nancy Jane Stewart, wife of Alexander Stewart, all the remainder of my real estate, to be divided equally, share and share alike, except that if my wife should die first, my daughter, Sarah Ann Hill, to have the mansion-house, with the enclosure around the same, over and above her share. And it is my will, and I do order and direct that my daughter, Nancy Jane Stewart, is to have the use of one-half of the barn for ten years, should the barn fall to that part of the place, by a division, on which the mansion-house stands. It is my will and I so order, that should my daughter, Sarah Ann Hill, die leaving no issue or child, that her share, as above bequeathed to her, shall fall back to my estate and be equally divided, share and share alike, to Ann V. and Fanny K. Lee, daughters of my son J. H. Lee, and Ada V. and James H. Stewart, children of my daughter Nancy Jane Stewart. And it is my will that if my daughter Sarah A. Hill, and Nancy Jane Stewart cannot agree as to a division of the real estate bequeathed to them, that John Cummins, Samuel Mitchell and John Jackson shall make said division, which division shall be final and conclusive." * * *

" Item. --I give and bequeath to my daughter, Mary E., wife of Andrew Smith, of the state of Ohio, the sum of $5000, to be paid as follows, & c.:-- * * *

The above five thousand dollars is to be paid out of my personal estate, should there be a sufficiency; if not, then the balance is to be paid by James H. Lee, Sarah A. Hill and Nancy J. Stewart out of the real estate in proportion to each valuation. It is my will that, after my decease, all my personal property not already devised, shall be appraised and sold, and the proceeds applied as above ordered." * * *

A division was made in pursuance of the provisions of the will, and Sarah A. Hill and Nancy J. Stewart took possession of their respective parts. On the 2d of January 1871, Sarah A. Hill and her husband, the plaintiffs, entered into articles of agreement with Ezra H. Hill, the defendant, to sell him, in fee simple, a part of the tract set apart to her, he to pay to the grantors on the 10th of February then next $400. On that day the plaintiffs tendered to the defendant a deed for the premises, and demanded payment of the purchase-money. He declined to accept the deed and pay the purchase-money on the ground that plaintiffs could not convey a fee simple in the premises.

The question for the opinion of the court was, whether the plaintiffs were entitled to recover the purchase-money; if so, judgment to be entered for the plaintiffs for $400; otherwise judgment to be entered for the defendant. The court entered judgment for the plaintiffs according to the case stated.

The defendant removed the record to the Supreme Court, and assigned for error that the court so entered judgment.

H. M. Baldridge, for plaintiff in error.--The word issue is construed as a word of purchase or limitation, as will best effectuate the intention of the testator as gathered from the whole instrument: Taylor v. Taylor, 13 P. F. Smith 481. Not being strictly a technical word, never a word of limitation, except when used in a will, it requires less to rebut the presumption arising from its use: Powell v. Board of Missions, 13 Wright 53. The limitation over on the death of Mrs. S. A. Hill without issue or child, being to persons in esse, who are individually named, manifests an intent to use the word issue in the sense of child or children: Walker v. Milligan, 9 Wright 178; Gernet et al. v. Lynn, 7 Casey 94. The intention to use " children" as a word of limitation, contrary to its natural import, must be clear. Conjecture, doubt, or even equilibrium of apparent intention will not suffice: Guthrie's Appeal, 1 Wright 12; Chew's Appeal, Id. 23.

T. Banks, for defendants in error.--The first devise gives a fee simple: Act April 8th 1833, ...