Horwitz v. Norris

• Decision Date: 13 March 1865
• Citation: 49 Pa. 213
• Parties: Horwitz <I>versus</I> Norris.
• Court: Pennsylvania Supreme Court

49 Pa. 213

Horwitz versus Norris.

Supreme Court of Pennsylvania.

March 13, 1865.

CERTIFICATE from the Court at Nisi Prius.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

E. Waln, for appellants.

Henry Wharton and Wm. Henry Rawle, for appellees (complainants below).

The opinion of the court was delivered, March 13th 1865, by STRONG, J.

The complainants are four of the five children of Joseph Parker Norris, second, deceased, and they with their brother Joseph are the only children which the decedent left at his death. There was no issue of any deceased child. The leading question presented by the case is what estate, if any, they took in the one-sixth part of the Fair Hill lands, under the will of their grandfather, Joseph Parker Norris, Sr. Under the will of their father they took nothing, for he had nothing to devise, and his will was but an attempted execution of a power conferred upon him by the will of the grandfather. Had there been no execution of the power, it is plain the complainants would have taken the fee simple of the said one-sixth part in equal tenancy in common with their brother. But there was an attempt to execute the power, and it therefore becomes material to inquire what the power was, and how far its attempted execution was warranted.

By the will of Joseph Parker Norris, Sr., the remainder in the one-sixth part of the Fair Hill property, after the decease of his son Joseph, the second, was given to and for the use and behoof of the child and children of the testator's son Joseph, born and to be born, that should be living at his death, and the lawful issue of such as might then be dead, and in such parts, shares, and proportions, and for such estate and estates, use and uses, as he (the said Joseph, second), by his last will and testament should direct, limit, and appoint, and in default of such last will or appointment, then for the only proper use and behoof of all and every the children of his said son Joseph, lawfully begotten, born and to be born, that should be living at his death, and the lawful issue of such as should be then dead, and their heirs and assigns for ever, equally to be divided among them, so always however that such surviving children of his said son should take per capita, and such issue should take together in equal parts, the share that his or their parent would have taken if then living; provided, however, that no division of this share of the Fair Hill property should be made among the children of his said son, in any event, until the youngest of his children born and to be born, should have attained the age of twenty-one years, but that after the decease of his said son, the net annual rent or income thereof should be applied (by the trustees to whom the land was devised in trust) to the maintenance, support, and education of the children of his said son, until the youngest of said children, born and to be born, should attain the age of twenty-one years.

It is apparent at first sight, that the power thus conferred upon Joseph P. Norris, second, was not a general power of appointment. He was not enabled to select the object of the original testator's bounty, nor even the class out of which those objects could be selected. The devisees were designated by the donor of the power. They were the children of Joseph P. Norris, second, who might be living at his death, and the issue of any child or children then deceased. There having been no such issue, they were the children exclusively. The donee of the power had therefore but a very limited authority. He could only define the parts, shares, and proportions; the estates and uses, in which, and for which, the members of the prescribed class, that is, the children, should take under the will of the first testator. Having but a particular, and not a general power of appointment, he could not appoint estates or uses which the donor of the power could not have created by his will, nor could he appoint to any other than to his children, they only composing the class within which any authority to appoint was conferred. Grandchildren of Joseph P. Norris were not within the class designated by the devisor, and they were not therefore possible appointees for any use or estate either in possession or remainder. The general rule is well settled that a power to appoint among children does not authorize either a general or partial appointment to grandchildren. As in the case of a devise directly, without the intervention of a power, grandchildren are not embraced in a gift to children, unless a contrary intent is apparent in the will. To this the authorities in this state, as well as elsewhere, are very direct. It is not denied that grandchildren have sometimes been held to be intended in gifts to children, and powers to appoint among children, but this is when the intention of the devisor or donor of the power is manifest, to use the word as inclusive not only of immediate but remoter descendants, or where such a construction is necessary to save the will from being inoperative. And these exceptions to the general rule are rare. In Radcliff v. Bulkley, 10 Vesey 105, Sir William Grant, M. R., speaks of two cases, and only two, in which the word "children" had been construed to mean grandchildren. The first he calls the case of necessity, when the will would remain inoperative unless the sense is extended. Under this head he instances Wild's Case, where upon a devise to a man and his children, it was held that if there were no children at the time, the father would take an estate tail, and children would mean issue; for it was evident something was intended for children, but none being in esse, they could take nothing except through the father, and he could transmit nothing to them except he had an estate of inheritance. It was necessary therefore to construe the word children to mean "issue" on account of the general apparent intention. A better illustration perhaps might be given in those cases when there is a devise to one for life, remainder to his children, and in default of issue over. In such a case the intention is plain that the issue of the children shall take before the devise over can go into effect. So a gift to children of a person who was known by the testator to have only grandchildren, may apply to the latter to enable the gift to take effect at all. The other case of exception mentioned by Sir William Grant is where a testator has indiscriminately used the words "issue" and "children," showing he meant to use children in the same sense as issue. So in Dickinson v. Lee, 4 Watts 82, and in Hallowell v. Phipps, 2 Whar. 376, the exceptions to the general rule that grandchildren do not take under a devise to children, were stated substantially in the same way. They are suffered to do so, said Gibson, C. J., principally if not exclusively in two cases; when the word is used evidently as co-extensively with issue, and when there are no children literally to answer the description, and then grandchildren are let in ut res magis valeat quam pereat. Nearly, if not quite all of the modern cases in...