Taylor v. Taylor

• Decision Date: 07 February 1870
• Parties: Taylor <I>versus</I> Taylor.
• Court: Pennsylvania Supreme Court

Page 481

63 Pa. 481

Taylor versus Taylor.

Supreme Court of Pennsylvania.

January 19, 1870.

February 7, 1870.

January 19th 1870.

Before THOMPSON, C. J., SHARSWOOD and WILLIAMS, JJ. AGNEW, J., at Nisi Prius. READ, J., absent.

Error to the Court of Common Pleas of Chester county: Of January Term 1870, No 232.

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W. B. Waddell, for plaintiff in error.

R. T. Cornwell and W. Darlington, for defendant in error.— Susanna Bonsall took an estate tail under the rule in Shelly's Case, 1 Rep. 104, Co. Litt. 376; Findlay v. Riddle, 3 Binn. 159; Carter v. McMichael, 10 S. & R. 429; Paxson v. Lefferts, 3 Rawle 59; Hileman v. Bouslaugh, 1 Harris 344; George v. Morgan, 4 Id. 95.

Whenever the term "issue" is used in reference to persons not in being, it is synonymous with "heirs of the body": Wild's Case, 6 Co. 17; Clark v. Baker, 3 S. & R. 477; George v. Morgan, supra. The intention is clear, that the estate should not go over, while there was any issue of Susanna. This constitutes the main leading intent, to preserve the estate in the first taker and her immediate descendants. This can only be done by the application of the rule in Shelly's Case: Doe v. Applin, 4 T. R. 82; Hayes on Estates Tail, 7 Law Lib. 106; James' Claim, 1 Dall. 47; Evans v. Davis, 1 Yeates 332; Price v. Taylor, 4 Casey 95; Wynn v. Storey, 2 Wright 166; Haldeman v. Haldeman, 4 Id. 29; Criswell's Appeal, 5 Id. 288; Angle v. Brosius, 7 Id. 187; Covert v. Robinson, 10 Id. 274.

The opinion of the court was delivered, February 7th 1870, by SHARSWOOD, J.

The word "issue" in a will means primâ facie the same thing as "heirs of the body," and in general is to be construed as a word of limitation, but this construction will give way, if there be on the face of the instrument sufficient to show that the words were intended to have a less extended meaning, and to be applied only to children, or to descendants of a particular class or at a particular time. There is less reluctance, indeed, to narrow the primâ facie meaning of the word "issue" than of the words "heirs of the body;" because these latter words are proper technical words of limitation, while "issue" is not, when used in a deed; and accordingly, in a will it is to be construed as a word of purchase or of limitation, as will best effectuate the intention of the testator gathered from the entire instrument. This was well expressed long ago by Chief Justice Willes: "Why does the word `issue' in a will signify the same as `heirs of the body?' Only because it may be supposed that the testator, who was ignorant of the law, intended it should have that construction. It does not, therefore, ex vi termini create an estate tail in a will as `heirs of the body' do in a deed, but only when it appears to be the intent of the testator that the word should have that construction, or, at least, that it does not appear that the intent of the testator was otherwise:" Ginger v. White, Willes 348; Quiddington v. Kerne, 1 Lord Raym. 303; Doe on d. Cooper v. Collis, 4 Term Rep. 294; Slater v. Dangerfield, 15 M. & W. 263; Lessee of Findlay v. Riddle, 3 Binn. 139; Clark v. Baker, 3 S. & R. 470; Paxson v. Lefferts, 3 Rawle 59; Hoge v. Hoge, 1 S. & R. 144; Abbott v. Jenkins, 10 S. & R. 296. It is a position not open to dispute, then, that if it appears, either by expression or by clear implication, that by the word "issue" the testator meant "children" or issue living at a particular period, as at the death of the first taker, and not the whole line of succession, which would be included under the term "heirs of the body," it must necessarily be construed to be a word of purchase; and the rule in Shelly's case can have no application. This does appear in the will now before us, both expressly and by clear implication.

The testator gives to his wife and daughter, or in case of the death of one of them, to the survivor, all his real estate during their natural lives, and in case his daughter "shall depart this life leaving lawful issue," then his real estate to descend to such lawful issue, their heirs and assigns for ever. He immediately adds these words: "And further, it is my will, that in case my daughter shall depart this life before her mother, leaving lawful issue, then such issue shall enjoy and inherit their mother's right from the time of her death." No declaration could well be more express to show that by issue he meant children; for they were to inherit and enjoy "their mother's right" from the time of her death.

The devise over, which is relied on as enlarging the estate of the joint devisee to an estate in tail, follows this clause: "But in case my daughter shall depart this life not leaving lawful issue as aforesaid, it is then my will that my executors or the survivors of them shall sell, &c." "Lawful issue as aforesaid," can only mean such issue as by the clause immediately preceding were to enjoy and inherit "their mother's right" — of course, children.

This clear expression of intention is abundantly confirmed when we examine the terms of the whole disposition. The remainder to the issue is with superadded words of limitation in fee, to their heirs and assigns for ever. This would certainly be insufficient if followed by a devise over after an indefinite failure of issue. But it is a very significant circumstance as bearing upon the question of intention, if we shall find that the testator contemplated that the devise over should take effect only on a failure of issue at a particular period — the death of the first devisee. Here was an estate in fee, with an alternative limitation over also in fee. This seems necessarily to be implied from the absolute direction to his executors or the survivor of them to sell and convert the estate into money in that event. It was to be done during the lifetime of his executors or the survivor, and as he expressly provides, not until after the death of his wife. They were to distribute the proceeds between the children of his own and his wife's deceased sisters or their lawful issue. He certainly could not have had in his mind an indefinite failure of the issue of his daughter, which might be postponed to a very remote period. The nature of the devise over has always been looked at to ascertain whether a definite or indefinite failure of issue was intended: as where the ulterior devises confer estates for life only, or when they are only to take effect in case the devisee then be living: Pells v. Brown, Cro. Jac. 590; Roe and Sheerer v. Jeffery, Term Rep. 589. In the leading case of Eichelberger v. Barnitz, 9 Watts 450, Mr. Justice Sergeant states the same thing as an exception to the general rule that a devise over of land on death without lawful issue, or leaving no lawful issue, means an indefinite failure: "If the devise over be of a life estate, which implies necessarily that such devisee over may outlive the first estate." The reason is very clearly stated by Mr. Smith: "Because it is not likely in such case, that the testator was contemplating an indefinite failure of issue, as that might, and most probably would not happen until many years after the death of the object of the ulterior limitation:" Smith on Executory Interests 559. "The same construction," he adds, "is adopted, when, on failure of issue, the property is devised in trust for the payment of debts, because it could not be supposed that the testator would provide for the payment of debts, on an indefinite failure of issue, which might not happen for two or three hundred years: Id. 560, for which he cites French v. Caddell, 6 Bro. P. C. 58; and Wellington v. Wellington, 4 Burr 2165; Fearne 450, n. 6.

An estate tail may, no doubt, be subject to an executory devise over on some condition or event, to take effect in abridgment or derogation of it: 1 Preston on Abstracts 401: though such an executory devise can be destroyed by a common recovery suffered by the tenant in tail, which enlarges his estate into a fee, and excludes all subsequent limitations, whether in remainder or by the way of springing use or executory devise: 2 Preston on Estates 460; 1 Preston on Abstracts 401; 3 Id. 130; 4 Kent's Com. 13. This destructibility deprives any limitation after an estate tail of all objection on the score of tending to create a perpetuity, however remote may be the event on which it is limited to vest: Lewis on Perpetuities 663. A devise over after an estate tail on a definite failure of issue is not an executory devise, but a remainder; for it takes effect, not in derogation or abridgment of the preceding estate, but on its regular determination, though only in the event of the determination of the estate upon the...