Peppard v. Deal

• Decision Date: 20 September 1848
• Citation: 9 Pa. 140
• Parties: PEPPARD <I>v.</I> DEAL.
• Court: Pennsylvania Supreme Court

9 Pa. 140

PEPPARD v. DEAL.

Supreme Court of Pennsylvania.

September 20, 1848.

IN error from the District Court of Allegheny.

Selden, for plaintiff in error.

Sawyer and Auston, contrà.

Sept. 20. COULTER, J.

At the time Catharine Deal made her last will, her brother Samuel was dead, intestate and without issue, and also her sister Betsy was dead, under like circumstances; if, therefore, the children of William Deal the elder took an estate in fee under his will, the parts or shares of these two descended to their surviving brothers and sisters, each of the brothers and sisters having their parts severally increased by their part of the shares of each intestate which fell into their own portion or share. In case of partition there would be no division into the original number of shares, and then a separate partition of the share allotted to the dead brother and sister, but as every one of the survivors held as tenants in common in equal parts, the whole estate subject to the life-estate in the mother, both as to Samuel and Betsy's interest, and the one-third of the profits of the whole bequeathed to her during life by her husband, they would of course take by partition equal parts; and this sufficiently explains the phraseology used by Catharine Deal, who died after Samuel and Betsy, and before partition. In her last will she devises to her mother "her part coming to her from her father's estate." And this language gives occasion to the assignment of two of the errors: first, that the court erred in instructing the jury that the devise by Catharine included that part which she inherited from her brother and sister; and second, that the mother took an estate in fee simple under Catharine's will. The last error assigned is that Catharine did not take in fee simple under the will of her father, and it will be most convenient to answer this first. [His honour here stated the will of William Deal.] It is clear that the testator had in his mind the distinction between an estate for life and an estate in fee, because he limits the interest of his wife in the profits to the duration of her life. But it is clear that the words in the will passed an estate in fee to the surviving children of the testator. The language in the introduction is carried down to the devising clause to explain its intent, if indeed it needed any explanation, for by its very words a clear intent to pass the whole interest of the testator is manifest; and that was all that was necessary in this state at any time, and there is no decision in favour of the heir going beyond that. By our statute on the subject, the reasonable rule is prescribed, to wit: "that all devises of real estate shall pass the whole of the estate of the testator, although there be no words of inheritance and perpetuity, unless by a devise over or words of limitation it appears that the testator intended to give a less estate." But these wills were made before the passage of the act, and before the ancient dialectics of the gown and the wig had entirely yielded to the dominion of common sense, and they must be interpreted according to the then existing law.

The cases of Morrison v. Semple, 6 Binn. 97, in which a devise of all a man's property was held to pass a fee, on the ground that they manifested an intention to devise the whole of the testator's interest, and Busby v. Busby, 1 Dall. 226...