Lea v. Sanson

• Decision Date: 18 May 1914
• Docket Number: 16
• Citation: 91 A. 611,245 Pa. 392
• Parties: Lee v. Sanson, Appellant
• Court: Pennsylvania Supreme Court

91 A. 611

245 Pa. 392

Lee v. Sanson, Appellant

No. 16

Supreme Court of Pennsylvania

May 18, 1914

Argued March 26, 1914

Appeal, No. 16, Jan. T., 1914, by defendant, from judgment of C.P. No. 3, Philadelphia Co., Sept. T., 1913, No. 399, for plaintiff on case stated in case of Charles M. Lea v. Morris Sanson. Reversed.

Case stated to determine title to property. Before DAVIS, J.

In addition to the facts set forth in the opinion of the Supreme Court, it appeared from the case stated that Charles M. Lea and Charlotte Augusta, his wife, agreed to sell to Morris Sanson, the defendant, the property in dispute; that when plaintiff tendered a deed, defendant refused to accept the same, alleging that the grantors had not a title in fee to the property.

It was stipulated in the case stated that if the court was of the opinion that the plaintiffs could convey a good and marketable title in fee simple, judgment should be entered for the plaintiff; other wise to be entered for the defendant. The court entered judgment on the case stated for the plaintiff. Defendant appealed.

Error assigned was in entering judgment on the case stated in favor of the plaintiff.

After considering all the relevant parts of the will (Kemp v Reinhard, 228 Pa. 143), we are convinced that the learned court below erred in entering judgment for the plaintiff. The assignments of error are sustained; the judgment is reversed and is here entered for the defendant.

Horace Stern, with him Morris Wolf, for appellant.

Abraham M. Beitler, for appellee. MOSCHZISKER

Before FELL, C.J., MESTREZAT, POTTER, ELKIN and MOSCHZISKER, JJ.

OPINION

MR. JUSTICE MOSCHZISKER:

The question for determination in this case is: Did the plaintiff, Charles M. Lea, take an estate tail enlarged to a fee, or but a life estate?

The testator gave the residue of his estate to his wife for life, and directed that at her death the property should be divided into shares. The devise to the plaintiff was as follows: "To my son Charles I devise a life estate in his share, if he shall then be living. Upon his decease his share of said realty shall pass to his descendants who shall then be living, who shall take the same in remainder, in such proportions, with like force and effect as they would have taken said real estate had he then died actually seized and possessed thereof."

The issue arose in a case stated wherein it was agreed that if it should be decided that Charles M. Lea took a fee, judgment should be entered for him, otherwise for the defendant. The plaintiff secured the judgment and the defendant has appealed.

The court below sustained the plaintiff's contention that the terms of the devise gave him an estate tail which, under the rule in Shelley's Case, and the Act of April 27, 1855, P.L. 368, was enlarged to a fee. We cannot agree in this conclusion; for it is apparent that the testator did not intend to use the word "descendants" in the sense of "heirs of the body" of the first taker, but simply to designate a certain set of persons to take directly from him, the testator, at a given time.

The words of the will are not sufficient in themselves to create an estate in fee-simple, for "descendants" does not comprehend "heirs" at law generally (Bates v. Gillette, 132 Ill. 287, 298); and the phrase "who shall be then living" restricts the word "descendants" to those alive at the time of the death of the first-taker, thereby negativing the idea of a devise to "heirs of the body," or descendants to the remotest degree, which is the essential attribute of an estate tail. It is quite true that the phrase "shall pass to his descendants" strongly suggests an intent to make the first-taker the source of inheritable succession, and had the devise ended at that point, it could well be held to create an estate tail; but it did not, and this is the pinch of the case.

A clear statement of the principle which controls under circumstances such as presented here, is to be found in the opinion of Mr. Justice SHARSWOOD, in Taylor v Taylor, 63 Pa. 481, 484, where he said: "It is a position not open to dispute that if it appear, either by expression or clear implication, that by the word 'issue' (in this case, "descendants") the testator meant . . . issue living at a particular period, as at the death of the first taker, and not the whole line of succession, which would be included under 'heirs of the body,' it must necessarily be construed to be a word of purchase, and the rule in Shelley's Case can have no application"; and again, in Robins v. Quinlivin, 79 Pa. 333, 335, where it is stated, "If there be on the face of the will sufficient to show that the word was intended . . . to be applied only to . . . descendants of a particular class at a particular time, it is to be construed as a word of purchase, and not of limitation"; and in Jones v. Jones, 201 Pa. 548, 550, where Mr. Justice BROWN said, "When a testator annexes words of explanation to heirs or heirs of the body, as to heirs now living, etc., using the term as a mere descriptio personarum, or for the specific description of individuals, a new inheritance is thereby engrafted upon the heirs to whom the estate is given (4 Kent Com. 221), and they will be assumed to take as purchasers: Kuntzleman's Est., 136 Pa. 142." Also see, McCann v. McCann, 197...