Mulliken v. Earnshaw
| Decision Date | 16 May 1904 |
| Docket Number | 60 |
| Parties | Mulliken, Appellant, v. Earnshaw |
| Court | Pennsylvania Supreme Court |
Argued March 29, 1904
Appeal, No. 60, Jan. T., 1904, by plaintiff, from judgment of C.P. No. 4, Phila. Co., Sept. T., 1903, No. 579, for defendant on case stated, in suit of Mary A. Mulliken v. John R. Earnshaw. Affirmed.
Case stated to determine marketable title to real estate passing under the will of Charles P. Mulliken, deceased.
From the case stated it appeared that the premises in question were 3649 and 3651 Smedley street in the city of Philadelphia. The material portion of the case stated was as follows:
That in and by said last will and testament the said testator devised as follows: "I give and bequeath all my personal estate and property whatsoever and wheresoever unto my wife Mary Ann Mulliken absolutely and all my real estate whatsoever and wheresoever I give and devise unto my said wife for and during all the term of her natural life if she so long remain my widow and from and immediately after her death or marriage I give and devise my said real estate unto my children then living and the issue of any that may be deceased, in equal parts and shares absolutely and in fee simple the issue of any deceased child to take only the deceased parent's share."
The said Charles P. Mulliken left surviving him a widow, Mary Ann Mulliken, the plaintiff herein, and the following named children: Edward L. B. Mulliken, Emily Elizabeth Mulliken and Mary Printz Mulliken. The said Edward L. B. Mulliken is married, but without issue. Emily Elizabeth Mulliken and Mary Printz Mulliken are unmarried.
That on Mary 28, 1903, Mary A. Mulliken, widow of said Charles P Mulliken, deceased, contracted to sell the above-described real estate to John R. Earnshaw, the defendant herein, for the sum of $2,600, and convey to him an indefeasible fee simple title. Fifty dollars was paid to plaintiff by defendant on account of the purchase price.
That the said Mary A. Mulliken on September 18, 1903, tendered to defendant a deed for the above-described property, duly signed and sealed by herself, Edward L. B. Mulliken, and Ella May Mulliken, his wife; Emily Elizabeth Mulliken and Mary Printz Mulliken. Defendant declined to take title to said property and refused to pay the balance of the purchase price upon the ground that the children of said Charles P Mulliken, deceased, did not have vested remainders in the said real estate, and that consequently the deed executed as aforesaid would not convey to him an indefeasible title.
The court entered judgment for defendant on the case stated.
Error assigned was the judgment of the court.
Judgment affirmed.
George J. Edwards, Jr., for appellant. -- It is a well established canon of construction in cases involving wills that where an estate is devised for life with remainder over to the testator's children then living or surviving, the words "then living" or "then surviving" shall be held to refer to the period of the testator's death in the absence of a clearly expressed intent that they shall refer to the death of the life tenant: Barker's Appeal, (Pa.) 2 Cent. Repr. 282; Thran v. Herzog, 12 Pa.Super. 551; Johnson v. Morton, 10 Pa. 245; Manderson v. Lukens, 23 Pa. 31; Ross v. Drake, 37 Pa. 373; Womrath v. McCormick, 51 Pa. 504; Cressons's Appeal, 76 Pa. 19; Crawford v. Ford, 7 W.N.C. 532; Laguerenne's Estate, 12 W.N.C. 110; Bloodgood's Est., 8 Pa. C.C. Rep. 546.
In order that these children shall possess the estate, the only requirement is that they shall live longer than the life tenant. The children were all in existence at the testator's death and the class to take was then definitely ascertained: Manderson v. Lukens, 23 Pa. 31.
If the estates devised are held to be contingent, then in the event of the death of all of testator's children without issue, an intestacy would be created which the law always seeks to avoid if possible: Sterling's Est., 7 Pa. C.C. Rep. 223; Duffy's Estate, 36 W.N.C. 199; Redding v. Rice, 171 Pa. 301; Merkel's Appeal, 109 Pa. 235.
The words "from and immediately after" the death of the life tenant are not to be construed as indicative of contingency. They are held to mark the period when an estate already vested in interest vests in possession: Andrew v. Andrew, L.R. 1 Ch. Div. 410; Manderson v. Lukens, 23 Pa. 31.
If we read the will in the light of a proper interpretation placed on its various parts, it is a devise to the widow for life and "from and immediately after her death I give and devise my said real estate to my children living at my death and the issue of any that may be deceased."
This interpretation is sustained by the following cases: Manderson v. Lukens, 23 Pa. 31; Womrath v. McCormick, 51 Pa. 504; Cressons's Appeal, 76 Pa. 19; Crawford v. Ford, 7 W.N.C. 532; Laguerenne's Estate, 12 W.N.C. 110; Estate of John Pechin, 13 Phila. 323; Barker's Appeal, 2 Cent. Repr. 282; Bloodgood's Estate, 8 Pa. C.C. Rep. 546; Harris v. Carpenter, 109 Ind. 540 (10 N.E. Repr. 422); Hoover v. Hoover, 116 Ind. 498 (19 N.E. Repr. 468).
John G. Johnson, for appellee was not heard, but cited in his printed brief: Mergenthaler's App., 15 W.N.C. 441; Reichard's App., 116 Pa. 232; Pleasonton's App., 99 Pa. 362; Craige's App., 126 Pa. 223; Reilly's Estate, 200 Pa. 288; Raleigh's Est., 206 Pa. 451; Martin's Est., 185 Pa. 51.
Before MITCHELL, C.J., FELL, BROWN, MESTREZAT and THOMPSON, JJ.
The want of harmony in the cases dealing with the period to which the words "then living" or similar phrases, in a will, should be applied, arises mainly from the artificial canon of construction that the period intended is presumed to be the death of the testator. The canon itself grew out of the preference in the policy of the law, in all doubtful cases, for vested rather than contingent interests. Like all artificial rules it had the constant tendency to become an arbitrary...
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