Linn v. Alexander

• Decision Date: 27 May 1868
• Citation: 59 Pa. 43
• Parties: Linn <I>et al. versus</I> Alexander.
• Court: Pennsylvania Supreme Court

Page 43

59 Pa. 43

Linn et al. versus Alexander.

Supreme Court of Pennsylvania.

May 13, 1868.

May 27, 1868.

May 13th 1868.

Before THOMPSON, C. J., STRONG, READ, AGNEW and SHARSWOOD, JJ.

Error to the Court of Common Pleas of Franklin county: Of May Term 1868.

COPYRIGHT MATERIAL OMITTED

J. M. Linn and J. McD. Sharpe, for plaintiffs in error.—The limitation over after the estate to Matthew and Samuel was good as an executory devise, though bad as a remainder: 1 Jarman on Wills 667; 2 Preston on Abstracts of Title 139; Fearne on Rem. 395-397; 1 Preston on Est. 480; Griffith v. Woodward, 1 Yeates 316; 7 Bac. Abr. 297; 4 Kent's Com. 269, 270; Haner v. Shutz, 2 Binn. 532; s. c. 3 Yeates 221; Jessup v. Smuck, 4 Harris 327; Langley v. Heald, 7 W. & S. 98; Pells v. Brown, Cro. Jac. 590; Roe v. Jeffry, 7 Term Rep. 596; Heynd v. Lyon, 5 Bac. Ab. 777. Where there are expressions showing that by "issue" the testator meant children, "issue" will be construed a word of purchase: Powell v. Board of Missions, 13 Wright 46; Guthrie's Appeal, 1 Wright 9; Sheetz's Estate, 2 P. F. Smith 257; Curtis v. Longstreth, 8 Wright 297; Hayes on Dispositions of Real Estate 40, 41, et seq.; Smith on Executory Interests, ch. 17, § 1; Hagerty v. Albright, 2 P. F. Smith 274; Reihle's Appeal, 4 Id. 97; Vaughan v. Dickes, 8 Harris 513; Matlack v. Roberts, 4 P. F. Smith 248; Eichelberger v. Barnitz, 9 Watts 450.

F. M. Kimmell, for defendant in error; from whom the reporter received no paper book.

The opinion of the court was delivered, May 27th 1868, by STRONG, J.

If under the will of their father, Samuel Coulter, Jr., and Matthew Coulter took a fee tail in the land devised to them, confessedly the plaintiffs are not entitled to judgment upon the case stated. We think such was the estate given to them. The words of the will are these: "I give and devise to my son Samuel Coulter, and my son Matthew Coulter, and the heirs of their bodies, all the plantation with all the appurtenances thereto, that I now live on." Had the testator stopped here, no question could have been raised. The devise thus far is in the most apt words for the creation of an estate tail. But this clause is followed by a gift to the same sons of certain personal property, and the imposition of certain charges. The will then proceeds as follows "My two sons Samuel and Matthew have no privilege, nor can in nowise sell or dispose of the land during their mother's natural life or marriage, and then not without both be agreed to sell their parts;" * * * "but if either one of them dies wanting heirs of the body, the part that the one owns falls to the other then except he be married, and if both die before they marry, their estate is to be equally divided amongst all the legatees." This it is argued reduces the estates tail first given to estates for life in the first takers. We are however unable to see that any such effect is produced by these added directions. The words "heirs of the body" are strictly and technically words of limitation. Nothing can convert them into words of purchase, but a clearly-expressed intention of the testator to use them in an abnormal sense. There is no such intention expressed in this will. It is very inartificially drawn, having been doubtless the work of a most illiterate scrivener, but there is not an intimation that the testator used the word "heirs" as meaning children. The first takers were clearly intended to be the root of the succession. There is indeed an ultimate limitation to "the other legatees" of the testator, to take effect in the contingency that both sons should die without having married, and in the settlement of the cross-remainders devised on the death of each son there is an exception that such remainder shall not pass, if the deceased son be married, but how this can reduce the estate first given clearly in tail, into an estate for life I cannot perceive. The fact that the second and third limitations must take effect, if at all, at the death of the first takers, though it may be of importance in considering whether the ultimate gift is a remainder, or an executory devise, and if the latter, whether it is good as an executory devise or not, can have no effect upon the degree of the estate first given. An estate tail may be followed by a limitation over on a definite failure of issue. So, like an estate in fee, it may depend for its continuance on the performance of a condition, or may be defeated by the happening of a contingency, but when once created, it remains an estate tail, until the occurrence of the contingency, or until the condition is broken upon which its continuance was made to depend. This is well illustrated in Fountain v. Gooch, cited by Lord Mansfield in Driver, ex d. v. Edgar, Cowp. 379, where a testator devised lands to his son for life, and to the heirs male of his body begotten, and for want of such issue the said son to have the said estate but during his natural life and no longer; and then the testator's will was that the land should descend to his nephew. The son suffered a common recovery to the use of himself and his heirs, and devised the land and died without issue male. It was adjudged that his estate was at first an estate tail, and consequently that the remainder was barred by the recovery, notwithstanding that the gift was to the son during his life and no longer, in case he had no issue male of his body, which, it was objected, rendered the estate tail contingent on his having male issue, and that, he dying without issue male, it had become but an...