Johnson v. Morton
| Decision Date | 17 April 1849 |
| Citation | 10 Pa. 245 |
| Parties | JOHNSON <I>v.</I> MORTON. |
| Court | Pennsylvania Supreme Court |
P. F. Smith and Lewis, for plaintiff in error.—The will is to be construed by the cases before the act of 1833. It is well settled, that a fee will not pass without words of limitation, or an expression of the same intent, 3 Bin. 483, where the word "plantation" was used as here: 14 S. & R. 88; 1 Wht. 252. The words "share and share alike, equally to be divided," were also used in 3 Bin. 483. The word "descend" is not technical, nor can it add to the quantity of the estate. Nor does the fact that realty and personalty are devised by the same words, make any difference: 1 Dal. 226; 2 Whart. 283; nor the addition, "or the survivors:" 2 Vern. 388.
But, if it is a fee, then it vested in them on the death of the testator. The act of 1812 prevents survivorship. But, apart from that, the words "share and share alike" always create a tenancy in common, without survivorship: 1 P. W. 96; 2 Atk. 122; Amb. 656; 3 Bin. 483; 5 Ib. 16; 3 S. & R. 138; 2 W. 185. These words also make the estate a vested one on the death of the testator, subject to the prior life-estate: 2 Pow. Dev. 214, 18. The other construction would exclude the heirs of such as died during the tenancy for life: 3 Atk. 734; 8 W. 432; 4 B. & Pul. 82. The cases settling that the estate vests from the death of testator, have never been shaken: 3 Burr. 1881; 2 Ves. Jr. 265; 3 Ib. 204, 451; 1 Ves. 165; 7 Ib. 279; 1 P. W. 96; 7 Taunt. 129; 6 Ib. 213; 8 B. & C. 231.
McMurtrie and Darlington, contrà.—The court must find an intent to give the fee, sufficiently expressed to satisfy the technical rules of the law. It is not sufficient that the intent may be presumed from the mere gift. But this intent sufficiently appears from the following considerations, taken together. It is to descend, which a life-estate never does. Where a life-estate is given, apt words are used. The same estate is given as in the personalty; whereas, two successive life-estates in personal chattels will not be presumed. It is the real estate which is to descend. Now, there is no instance in which that word is used expressive of the interest, where a mere life-estate passes: 2 Prest. on Est. 88. Less forcible words passed the fee in 11 Mass. 528; 5 Cow. 222-30; 2 Bin. 33; 2 Dow. & Ry. 398.
It is conceded that the rule has been, that a devise for life, remainder to survivors, vests in those surviving the testator: the cases are collected in 2 Jarm. 640-57. But it has been overturned as to personalty, Ib.; and that author remarks, how impossible is it to uphold decisions not founded in principle, as is the case with these.
That the period of survivorship will be held to be the period of distribution, is settled as to legacies: 2 Pow. 732, 738; 2 Jarm. 657, et seq., where all the cases are collected. It was recognised as late as 2 My. & K. 15; 2 Beav. 28.
April 17. ROGERS, J.
It is the cardinal rule in the construction of wills, that the intention of the testator — to be collected from the whole instrument, or, as it is sometimes expressed, from its four corners — is to govern. But this must be the legal intention, to discover which, certain legal rules are firmly established, from which we are not at liberty now to depart. The rule is, as expressed by the Chief Justice in Steele v. Thompson, 14 S. & R. 88, that, when a devise is made in words, from which the law implies an estate for life, and no words of limitation are added, the devisee can take only an estate for life. But, as no technical words are necessary to show an intent to give a fee, any words which show such intent are sufficient And Mr. Justice Duncan, in one case, says, that when there are no words of limitation, and no necessary implication from the whole body of the will to give a longer estate, the devisee takes but a life-estate. Of the rule and its qualifications many examples are given in Steele v. Thompson, which it would be useless to repeat. But I content myself with referring to the case, where most of the authorities are collected. It is useless to cite a multiplicity of cases, for it is agreed by eminent judges, that, as no two cases are exactly alike, the comparison of one with another throws but very little light on the testator's intention. Keeping these rules in view, we must endeavour to discover the intention from the will itself, which, so far as is material, runs thus. [His honour here stated the will.]
Two questions arise on the construction of the will: 1. Is the devise to the daughter a devise of a fee-simple or life-estate? 2. At what time did the devise vest; at the time of the death of the testator, or at the expiration of the life-estate of the wife?
It is admitted there are no words of limitation contained in the will, and whether there are other words sufficiently indicative of his intention to enlarge the estate, which is otherwise a life-estate, into a fee-simple, is the point in controversy. I approach the question with a great disposition to find words of such import as carry the fee, as I am convinced that in a very great majority of cases we thus carry out the intention of the testator, although I disclaim all idea of effectuating this object by conjecture merely, nor would I wish to be understood as interfering with a single adjudged case. None has been cited on all fours with it, nor with much resemblance to it. Although the testator omits the usual formula of a disposition of all his "worldly estate," yet it is apparent he had no idea he was dying intestate as to any part of his property. He devises all this plantation, and moreover, orders thirty or forty acres of land to be sold by his executors, to pay his debts, without any words of limitation. It would impute great folly to him to suppose that he gave power to sell nothing more than a life-estate for that purpose. But I do not put the case on that ground, nor upon the fact that it is devised to them, or the survivor of them, in joint stock, share and share alike. These clauses in cases of similar import, have been ruled not to enlarge the estate. But, although worth nothing of themselves, yet they are not to be altogether discarded from the consideration of the case. Nor am I inclined to pass by the words that at the decease of his wife, the plantation is to descend to his three daughters, or the survivor of them, in joint stock, share and share alike. It is well remarked that the word descend is inapplicable to any estate less than a fee; that the testator uses it as synonymous with "belong to," or "vest in," which would carry a fee. Besides, he limits the life-estate to his wife by apt words, from which a fair inference arises, that had he designed the same interest for his daughters, he would have said so in express words, by devising it them also during their natural lives. Taking all the facts together; considering that there is no reason to believe, but the contrary, that the testator intended to die intestate; that the words are, that it shall descend, which implies an inheritance; that he uses apt words in devising a life-estate, and omits the words in the part relating to his daughters, together with the improbability that he should wish to limit the interest to a life-estate, when they might marry and have children, we think there is enough indicating an intention that they should have a fee. But there is another view, in addition to that already taken, that is conclusive as to his intention. It is clear the testator intended his daughters should take the same interest in his real as in his personal estate. After devising his real estate, he bequeaths his personal estate, consisting of live stock, farming utensils, house and kitchen furniture of every sort, for the use and support of his wife during her natural life, and at her decease directs it to descend to his three daughters, in the same manner and on the same principle as his real estate. If, therefore, they have but a life-estate...
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