Kemp v. Reinhard

• Decision Date: 02 May 1910
• Docket Number: 194
• Parties: Kemp, Appellant, v. Reinhard
• Court: Pennsylvania Supreme Court

77 A. 436

228 Pa. 143

Kemp, Appellant, v. Reinhard

No. 194

Supreme Court of Pennsylvania

May 2, 1910

Argued February 28, 1910

Appeal, No. 194, Jan. T., 1909, by plaintiff, from judgment of C.P. Berks Co., April T., 1909, No. 17, for defendant on case stated in suit of Jacob E. Kemp v. Valerius S. Reinhard and Pierce G. S. Kemp. Affirmed.

Case stated to determine the marketable title to real estate. Before ENDLICH, P.J.

From the record it appeared that the material portions of the will of Amelia Sunday under which plaintiff claimed title were as follows:

"Item. I give and devise to my son, Pierce G. S. Kemp, his heirs and assigns, all that certain messuage, tenement and tract of land situated partly in Maxatawny township and partly in Richmond township, said county, adjoining lands of Joseph Mengel, Caroline Sell, heirs of John Rahn, deceased, Conrad Stitler, Frederick Hill and others, containing one hundred and twenty three acres, more or less, with the appurtenances and all hay and straw thereon at the time of my decease.

"Item. I give and devise unto my son Jacob E. Kemp, the use and income for and during his lifetime of all that certain three story brick store and dwelling house and lot of ground, in which I now reside situated in Kutztown aforesaid, bounded on the north by White Oak street, on the south by property of Albert S. Heffner, on the east by Sander alley, and on the west by Main street, containing a width on Main street of fifty three feet and four inches and a depth of one hundred and sixty feet.

"Also of all that certain tract or piece of land situated in Maxatawny township, said County, bounded by lands of the Keystone Normal School, Dr. J. S. Trexler, estate of Perry Levan, deceased, and others, containing six acres, more or less.

"Also of all that certain lot or piece of ground, situated in Kutztown aforesaid, bounded by lands of George J. Kutz deceased, Jeremiah S. Trexler, Walnut street, and by a public road, leading from Kutztown to Kutz's Mill, containing one acre and one half, more or less.

"Also of all that certain lot or piece of ground, situated in Maxatawny township, said County, bounded by lands of Ephraim Sharadin estate of Jonathan Biehl, deceased, and others, containing three acres, more or less.

"Also of all that certain tract of meadow lands situated in Kutztown aforesaid, bounded by Greenwich street, lands of the Keystone Shoe Manufacturing Company, Hannah Glasser and others, containing one and one quarter acres, more or less.

"Also of all that certain two story brick dwelling house and lot of ground situated in Kutztown aforesaid, adjoining property of Solomon Ahn, David Saul, a private on the rear, and Walnut street.

"And also of all that certain tract or piece of woodland, situate in Ruscombmanor township aforesaid, containing three acres and ninety two perches, more or less, it being the same tract which my father, Jacob Sunday, deceased, purchased from Jacob Brown and devised to me.

"And immediately after the decease of the said Jacob E. Kemp, I give and devise the above described seven tracts or pieces of land, devised to him herein for life, to his issue in fee. Should he however die without leaving issue living, I give and devise the same unto my son, Pierce G. S. Kemp, his heirs and assigns in fee.

"Item. In consideration of the services rendered me by my said son, Pierce G. S. Kemp, since he is twenty one years of age, and as a compensation therefor, I give and devise unto my said son Pierce G. S. Kemp, his heirs and assigns, all that certain two story frame dwelling house and lot of ground situated on White Oak street, in Kutztown aforesaid, bounded by Sander alley, property of William G. Stetler, Ulrich J. Miller and White Oak street.

"Item. All the rest, residue and remainder of my estate not hereinbefore disposed of I give, bequeath and devise unto my said sons Pierce G. S. Kemp and Jacob E. Kemp, their heirs and assigns in equal shares."

Defendant refused to take plaintiff's title.

The court in an opinion by ENDLICH, J., entered judgment for defendant.

Error assigned was in entering judgment for defendant on case stated.

Judgment affirmed.

Isaac Hiester, for appellant. -- The main devise without any implication arising from the words "die without leaving issue" is a limitation of an estate tail: Angle v. Brosius, 43 Pa. 187; Grimes v. Shirk, 169 Pa. 74; Elliott v. Pearsoll, 8 W. & S. 38; McIntyre v. Ramsey, 23 Pa. 317; Philadelphia, etc., Co.'s App., 93 Pa. 209; Potts's App., 30 Pa. 168; Allen v. Markle, 36 Pa. 117; Wynn v. Story, 38 Pa. 166; Auman v. Auman, 21 Pa. 343; Steacy v. Rice, 27 Pa. 75; Kleppner v. Laverty, 70 Pa. 70; Bassett v. Hawk, 118 Pa. 94; Carter v. McMichael, 10 S. & R. 429; Paxson v. Lefferts, 3 Rawle, 59; George v. Morgan, 16 Pa. 95.

The words "die without leaving issue" do not import a definite failure of issue under the Act of July 9, 1897, P.L. 213, when a contrary intention appears by the will and such contrary intention does appear where the preceding gift without any implication arising from such words is a limitation of an estate tail to the first taker: Re O'Bierne, 1 Jones & LaTouche, 352; Dawson v. Small, 10 Eng. Ruling Cases, 847; Dilworth v. Schuylkill Improvement Land Co., 219 Pa. 527; Hastings v. Engle, 217 Pa. 419; Lewis v. Link Belt Co., 222 Pa. 139.

F. A. Marx, with him C. H. Ruhl, for appellee. -- The rule in Shelly's case has no application: Guthrie's App., 37 Pa. 9; Findlay v. Riddle, 3 Binn. 139; Ingersoll's App., 86 Pa. 240; Shaner v. Wilson, 207 Pa. 550; Mulliken v. Earnshaw, 209 Pa. 226; Todd v. Armstrong, 213 Pa. 570; Wood v. Schoen, 216 Pa. 425; Taylor v. Taylor, 63 Pa. 481; Daley v. Koons, 90 Pa. 246; Elliott v. Pearsoll, 8 W. & S. 38.

Before FELL, C.J., BROWN, MESTREZAT, POTTER and STEWART, JJ.

OPINION

MR. JUSTICE BROWN:

The testatrix gave to her son, Jacob E. Kemp, the use and income of seven enumerated properties "for and during his lifetime." Immediately after this provision for him there is the following separate clause in the will: "And immediately after the decease of the said Jacob E. Kemp, I give and devise the above described seven tracts or pieces of land, devised to him herein for life, to his issue in fee. Should he however die without leaving issue living, I give and devise the same unto my son, Pierce G. S Kemp, his heirs and assigns in fee." The judgment of the court below on the case stated to determine whether the appellant had a fee simple in the properties was that he took but a life...