Still v. Spear

• Court: Pennsylvania Supreme Court
• Writing for the Court: Strong
• Citation: Still v. Spear, 45 Pa. 168 (Pa. 1860)
• Decision Date: 01 January 1860
• Parties: Still versus Spear.

45 Pa. 168

Still versus Spear.

Supreme Court of Pennsylvania.

ERROR to the Common Pleas of Chester county.

COPYRIGHT MATERIAL OMITTED

U. V. Pennypacker, for plaintiff in error.

Wayne McVeagh, for defendant.

The opinion of the court was delivered by STRONG, J.

The construction given by the court below to the will of Charles Still, Sr., plainly defeats the general intentions of the testator, and this without any necessity, for those intentions are not in conflict with any rule of law, or with any policy which the law does not tolerate. There are certain principles, it is admitted, which are intended to assist in ascertaining a testator's intention, and which are controlling when that intention is doubtful. They have been invoked to sustain this judgment. Among them are the maxims that the first taker of a legacy is presumed to be the chief object of a testator's bounty; that in doubtful cases legacies are to be held vested, rather than contingent; absolute, rather than defeasible; that the law favours such a construction as will render estates alienable, and that the primary intent is to be regarded rather than the secondary, if both cannot prevail. But these principles shed no light upon the will now before us. They are only applicable in cases of doubtful construction. They are never allowed to defeat a plain intent expressed.

The purposes of the testator in this will are not obscure. That he did not intend Levi Still to have any share of his estate absolutely; that he did not intend to expose any part of it to seizure at the suit of Levi's creditors; and that he did intend a benefit to the children of Charles Still, on the happening of an anticipated contingency, would be very plain to every common mind. It is only when refinement commences that doubts arise.

The property which the plaintiff below seeks to reach by his attachment is personalty. Laying aside for the present any notice of the trust, and treating the gift as directly to Levi, the first taker, we have a legacy of the interest of a fund to him indefinitely, and in case he should die "without leaving issue," a gift of the principal to the children of Charles. The case is then completely within the rules laid down in Smith on Executory Interests 599, 600, which are as follows: — "Where personal estate is limited, either directly to, or by way of executed trust for, a person indefinitely or for life, with a limitation over on an indefinite failure of his issue, the whole interest vests in the ancestor. But where the limitation over is on failure of children only, or on failure of issue within a given time, the ancestor will have a life estate with a limitation over of a springing interest or the entire interest with a conditional limitation over." The limitation over to the children of Charles, is not a limitation after an indefinite failure of issue. Notwithstanding the doubts which have been expressed in some cases, it is now settled that in gifts of personalty, the phrase "die without leaving issue," means die without leaving issue living at the death of the person; the failure of whole issue is spoken of. It was so settled in England before the statute of 1 Vict. c. 26, § 29. See Smith on Executory Interests 539, and 2 Jarman on Wills 418, et seq., where the cases...