Simpson v. Reed

• Decision Date: 05 January 1903
• Docket Number: 188
• Citation: 54 A. 499,205 Pa. 53
• Parties: Simpson, Appellant, v. Reed
• Court: Pennsylvania Supreme Court

54 A. 499

205 Pa. 53

Simpson, Appellant, v. Reed

No. 188

Supreme Court of Pennsylvania

January 5, 1903

Argued November 10, 1902

Appeal, No. 188, Oct. T., 1902, by plaintiff, from judgment of C.P. No. 3, Allegheny Co., Aug. T., 1902, No. 497, on case stated in suit of Martha Bell Simpson v. J. Allison Reed. Reversed.

Case stated to determine marketable title of real estate.

The facts appear by the opinion of the Supreme Court.

Error assigned was judgment for defendant.

We concede that the case is a close one, and we are not indifferent to the able argument of the learned counsel for appellee or the authorities cited by him, tending to show that the words child and children are generally words of purchase and not of limitation, but we cannot divest ourselves of the conviction, that as used by testator in the fourth clause, taken in connection with the twelfth, they describe and apply to a class, legally lineal descendants of his daughter, the same as if he had used the words heirs of her body. The judgment of the court below is therefore reversed and the judgment entered for the plaintiff on the case stated.

R. A Balph, with him James Balph, for appellant. -- The plaintiff took a fee: Guthrie's App., 37 Pa. 9; Potts's App. 30 Pa. 168; Yarnall's App., 70 Pa. 335; Jones v. Davies, 4 Barn. & Adolph. 43.

O. P. Robertson, for appellee, cited: Yarnall's App., 70 Pa. 335; Dodson v. Ball, 60 Pa. 492; Oyster v. Knull, 137 Pa. 448; Nes v. Ramsay, 155 Pa. 628; Wallace v. Denig, 152 Pa. 251; Guthrie's Appeal, 37 Pa. 9; Husbands on Married Women, sec. 289; Naglee's Appeal, 33 Pa. 89; Williams v. Leech, 28 Pa. 89; McKee v. McKinley, 33 Pa. 92.

Before MITCHELL, DEAN, FELL, BROWN, MESTREZAT and POTTER, JJ.

OPINION

MR. JUSTICE DEAN:

This is a case stated for the interpretation of the will of T. P. Simpson, late of Pittsburg, deceased. The will is dated in March, 1899; clause four of it is susceptible of two distinct constructions, as to the exact estate taken under it by the devisee, this appellant. It is as follows:

"Item 4. I give, devise and bequeath to my daughter, Martha Bell Simpson, the equal, undivided one-fifth part or share of all my real estate for life only, remainder after her death to her child or children in fee, but if my said daughter at the time of her decease has neither husband, child, or children she may also dispose of her said part or share of said real estate as she sees proper."

The court below was of opinion that appellant took but a life estate under this clause and rendered judgment for defendant. Does the rule in Shelley's case control the intention? We restate it: "When an ancestor by any gift or conveyance takes an estate of freehold, and in the same gift or conveyance an estate is limited either mediately or immediately to his heirs in fee or in tail, always in such cases, 'heirs' are words of limitation of the estate and not words of purchase." Although a cardinal rule in the interpretation of wills is to ascertain and then adopt the intention of testator, yet if the devise for consideration comes under the operation of Shelley's rule, the words must be taken as they stand, in their strict legal signification. The question is not, whether the testator intended the rule should not operate, for that is not subject to his power, but whether he used words synonymous with heirs of the body; the rule perhaps in every instance subverts an intent. It controls the interpretation of devises and grants by deed and as said by GIBSON, C.J., in Hileman v. Bouslaugh, 13 Pa. 344, "is proof even against an express declaration that the heirs shall take as purchasers. But it is an intention which the law cannot indulge consistently with the testator's general plan and which is necessarily subordinate to it. It is an intention to create an inalienable estate tail in the first donee; and to invert the rule of interpretation by making the general intention subservient to the particular one. A donor is no more competent to make tenancy for life a source of inheritable succession than he is competent to create a perpetuity or a new canon of descent. . . . It has always been recognized by this court as a rule of property." Also see a concise and axiomatic discussion of the subject by Justice MITCHELL in the very late case of Shapely v. Diehl, 203 Pa. 566.

While Shelley's rule, as a rule of interpretation, is still in existence in this state, for we have no statute abolishing it as in New York and some of the other states, yet its original results, as a rule of property, by our statutes authorizing deeds barring estate's tail, and especially since the act of April 27 1855, declaring that an estate in fee tail shall be construed as a fee simple, do not follow; practically an estate in fee tail under the rule no longer controls or determines the descent. This estate instead of a life estate in the first taker and a fee tail because of the limitation to the lineal descendants of the first taker is a fee simple in the...