Jessup v. Smuck

• Decision Date: 16 June 1851
• Citation: 16 Pa. 327
• Parties: Jessup <I>versus</I> Smuck.
• Court: Pennsylvania Supreme Court

Page 327

16 Pa. 327

Jessup versus Smuck.

Supreme Court of Pennsylvania.

June 16, 1851.

ERROR to the Common Pleas of York county.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Chapin, for plaintiff in error and plaintiff below.—The plaintiff claims that by the will of William Willis, deceased, Samuel Willis took the fee simple of the premises defeasible on his death before marriage, and on the happening of this contingency, the fee simple passed by executory devise to Joel Willis, the plaintiff's testator.

That a fee simple may by executory devise be limited after a fee simple either vested or contingent, is as well established as any principle recognised in law: Fearne on Rem. 395-6-7, and cases there cited; 4 Wils. Bac. Abr. 297; 4 Kent. Com. 269-70; 2 Bin. 532, Hauer's Lessee v. Sheetz.

The defendants in the court below contended, and the court (Judge LEWIS) decided, that Samuel took at once on the testator's death an indefeasible estate in fee simple — in other words, that Joel was a mere substitute, to take only in case the devise to Samuel should lapse by his death in the testator's lifetime.

To sustain this position, it was claimed as a rule of construction, that a devise over in the event of death, where the first devisee is to take immediately, is construed to mean death in the lifetime of the testator.

The cases cited in support of this position were, with three exceptions, cases in which the death was connected with no other circumstance and with no context indicating a longer time. The words used were merely "in case of her death" — "if either should die" — "in the event of her death" — "in case of her demise" — "in case of death happening to her" — "in case of her decease," &c.

Most of these cases were also of bequests of personal property, with respect to which courts have been more reluctant to sustain executory devises. And, even in these cases, the decisions are conflicting. In Cambridge v. Rous, 8 Vesey 12, Sir WILLIAM GRANT says, "Words precisely the same were differently construed in Lord Douglass v. Chalmer," 2 Vesey Jr. 501; and Hinckly v. Simmons, 4 Vesey 160. In the former, the words were "in case of her decease" and the executory legatee took, — in the latter, the words were "in case of her death," and the first taker held. The cases on both sides are exhibited in note A to Billings v. Sandom, 1 B. C. C. 394, to all which reference is now made. Upon this rule, Mr. Jarman remarks as follows: — "But although, in case of an immediate gift, it is generally true that a bequest over in the event of the death of the preceding legatee refers to that event occurring in the lifetime of the testator, yet this construction is made only ex necessitate rei, from the absence of any other period to which the words can be referred, as the testator is not supposed to contemplate the event of himself surviving the objects of his bounty:" 2 Jarman on Wills 664-5.

But this rule, artificial at best, and confessedly not universal in its application, even when the event is death only, and belonging especially to personal property, is reversed when other collateral events are connected with the event of death. Mr. Jarman thus states it: — "It will commonly be found, it is conceived, that where the context is silent, the words referring to the death of the prior legatee in connection with some collateral event, apply to the contingency happening as well after as before the death of the testator:" 2 Jarman on Wills, 687; Allen v. Farthing, same page; and Child v. Giblet, 488.

The cases above alluded to as exceptions, in which other events were connected in the will with the event of death, and yet were brought within this artificial rule, are Clayton v. Lowe, 7 Eng. Com. Law 218, in which no reason is given for the decision; in which the words are, "or should die leaving child or children," and of which Mr. Jarman says — "The reasons for the conclusion at which the court arrived do not appear." "Whether the certificate of the Court of King's Bench was confirmed by the vice-chancellor does not appear. Under such circumstances, it would be unsafe to rely on the case as a deliberate adjudication in support of so doubtful a principle:" 2 Jarman on Wills 692. This case is therefore too apocryphal to sustain the defendant's construction.

The next and only other English case of this class cited by defendants, is that of Doe v. Sparrow, 13 East 359. Here were three contingencies of death, to wit: 1. "In case of the death of either my son or daughter leaving child or children." 2. "In case my said son and daughter shall be both dead at the time of my decease," then to executors and brother. 3. "In case of the death of my said son and daughter at the time before mentioned."

In construing this will, Lord ELLENBOROUGH says, "The limitations to the executors and to his brother are confined in express terms to the event of the death of his son and daughter in his lifetime, and from thence it is inferred that he was contemplating a death in his lifetime in the preceding clause." And further, "the express restriction to death in testator's lifetime in one clause, leads the court to infer that in the other clauses death during the same period was intended."

Of this case Mr. Jarman remarks: — "But this construction was aided by the context, particularly by a gift over of the entire property in case both devisees were dead at the time of the decease of the testator without children, from which the court inferred that in the clause in question he contemplated death at the same period." 2 Jarman on Wills 653. How can this case be a guide for one in which there is no such express limitation?

In Caldwell v. Skilton, 1 Harris 153, the only remaining case of this class cited, the decision is distinctly placed, as to the construction of the will, upon the incongruity which must result from any other construction, and the impossibility of harmonizing its provisions, or carrying into effect the obvious general intention of the testator, without fixing the time of the testator's death as the period for the death of the first taker. This case, like the two preceding, and that of Jenour v. Jenour, 10 Vesey 563, cited in support of it, was a tenancy in common to the first takers with survivorship, (a condition of things on which the court placed some reliance,) and that survivorship, if treated as unlimited in duration, might entirely defeat the obvious general intention of the testator. Hence, in this case there was a necessity of applying, as to time, that which Mr. Jarman says is "so doubtful a principle." In the case before the court there is no tenancy in common, with survivorship, nor in any conceivable contingency would the obvious general intention of the testator be frustrated by giving to the words of the will their common and ordinary interpretation.

None of the cases above cited connect marriage with the event of death.

But the time intended by the testator is in fact fixed by the very sentence which imposes the defeasance and creates the executory estate. "In case my son Samuel should die before he marries, then" I give, &c. to Joel. Should die! When? Not generally, or at any time, not in testator's lifetime, nor with or without issue, as in the cases of limitation, but "before he marries." Marriage was to render indefeasible, not death to render defeasible, the estate given to Samuel. His non-marriage was the event which made the premises the property of Joel the first moment such non-marriage could be certain, to wit, Samuel's death. Death was never, in the mind of the testator, the contingency on which the estate was to go over, but non-marriage; and death is only named as the farthest boundary of the period for the performance of the condition which should make Samuel's title indefeasible. Time subsequent to the testator's own decease was in his mind throughout his whole will; legacies were to be paid from one to six years after his decease; the last-named time being allowed for the trifling sum of £10. The testator made all the limitations of time he chose to make even in minute matters, and it cannot be supposed that he omitted such limitations as he desired in matters of greater importance.

Non-marriage is a good condition of defeasance: 2 Strange 1175: "Devise to A in fee, but if he dies under age or unmarried and without issue, then over; all the events must concur to defeat the estate."

Griffith v. Woodward, 1 Yeates 316: "If either of my said sons shall happen to depart this life unmarried and without lawful issue," then survivorship. Marriage prevented executory devisee from taking. Also cited Drinkwater v. Combe, 2 Sim. & Stuart 340.

Evans and Mayer were for defendants in error.—The defendants do not admit that the will vested in Samuel Willis an estate "defeasible on his death before marriage," at any time. It appears to have been the primary object of the testator to provide for Samuel, and to invest him with full dominion over the most valuable part of his property, worth now perhaps $14,000 or $15,000. The case finds that Samuel was twenty-two years of age at the date of the will, was unmarried, and resided with his father. The two unmarried sisters were no doubt also at home.

That the testator contemplated some contingency upon which Joel should take the place of Samuel and become invested with the property devised to Samuel on the same terms and conditions as Samuel "was to have held it," there is no doubt. The devise to Joel is substitutionary to that to Samuel. The contingency which was to determine this substitution was the death of Samuel — his death in the lifetime of the testator, while yet unmarried. In that event Joel was to take the place of Samuel. An additional payment of £460 was imposed on Joel, no legacy out of the land was to be received by him, no share of the residual estate was to...