Tyler v. Moore

• Decision Date: 21 April 1862
• Citation: 42 Pa. 374
• Parties: Tyler to the use of Southworth <I>versus</I> Moore.
• Court: Pennsylvania Supreme Court

Page 374

42 Pa. 374

Tyler to the use of Southworth versus Moore.

Supreme Court of Pennsylvania.

April 21, 1862.

ERROR to the Common Pleas of Bedford county.

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H. W. Patrick and J. C. Adams, for plaintiff in error. — I. The deed from Francis Tyler to F. A. Tyler, was a fee simple to the grantee, with an attempt to limit the same to his proper heirs. The words of the grant are to the grantee, "his heirs and assigns for ever." The words of the habendum, "to the said party of the second part, to his own use, benefit, and behoof during his natural life, and at his decease, the said one hundred and fifty acres, with the appurtenances, to descend to and the title thereof vested in the children of the said party of the second part, by him lawfully begotten," "the same to be held by his said children, and the lawful issue of such child or children as may have deceased, as tenants in common, their heirs and assigns for ever."

The question under this grant is, would the children of the grantee take by descent from their father at his decease, or by purchase under the grant from Francis Tyler. By the language of the grant, on the death of the grantee, the land was to descend to his children, their heirs and assigns; consequently the grantor must have held an inheritable estate, and as it descends to those who are entitled to take under our intestate laws, that estate must have been a fee simple. The word descend has a fixed and definite meaning, is in direct opposition to the word purchase, and rebuts the idea that the children of the grantee were to take by purchase on the death of their father. At the date of the grant, the grantee had three daughters, and by its terms nothing vested in them, nor was it to vest in them until the death of their father, and then by descent, and in the same manner as by the intestate laws of Pennsylvania; consequently the attempted limitation had no effect to change the fee given in the premises. Had the grant to F. A. Tyler, in the premises, been for life, and in the habendum "to his right heirs," no matter in what way they were named, it would be a fee simple; but in this case the fee is first given to the grantee, with an attempt, on the part of the grantor, to limit and restrain in the hands of the grantee. Had the grantee died possessed of the three hundred acres under this deed, the whole would have descended to his three daughters as his legal heirs, the limitation being to his "right heirs," by the name of children, to the one hundred and fifty acres, would not alter the line of descent. By the limitation, the children were to take as "tenants in common." They would have taken as tenants in common by the law of descent. If any of the children died, leaving lawful issue, they "were to take the share of the deceased parent." This would have been so, without the words of the grant, by the intestate laws.

Every grant or conveyance of land in this state is to be construed according to the laws of the state, and the intention of the grantor is found in the legal construction of the words used in the grant. See the Intestate Laws, passed 8th April 1833, §§ 8, 9, 10, 11, 12, 13, 14.

The grant makes but one estate; no remainder is carried out or attempted to be by the grantor, either vested or contingent. The words used in the habendum are an attempt by the grantor to control the fee in the hands of the grantee, which he had not the power to do. The words used by the grantor in the habendum give to the grantee a fee simple had it been otherwise in the premises. See Bacon's Abridg., Vol. 3d, 426, 429.

It is said that this construction defeats the intention of the grantor. We can only judge of the intention of the grantor by the words he has used in the grant. Do the legal words of the grant give to the grantee an inheritable estate in this piece of land?

1. The grant is to him and his heirs and assigns for ever. These are not the words used to give a life estate. No conveyancer would think of giving a fee simple to the grantee in the premises, and limit and restrict it to a life estate in the habendum. The habendum may lessen, enlarge, explain, or qualify, but must not contradict or be repugnant to the estate granted in the premises: Wager v. Wager, 1 S. & R. 375, 380; 4 Kent's Com. 468; 2 Black.'s Com. 298; Jackson, &c., v. Ireland, 3 Wend. 99.

2. At the decease of the grantee, the one hundred and fifty acres was "to descend to and the title thereof vested in the children of the said party of the second part." The title to the land was not to vest in the children till the death of their parent, and then it was to descend to them, not by virtue of the grant from the grantor, but from their immediate ancestor, by virtue of the inheritable title vested in him.

The word descent, when used in the transmission of estates, has a legal meaning attached to it, which does not differ from the plain, ordinary, popular meaning which is understood by every one who uses it. See Ellmaker v. Ellmaker, 4 Watts 90.

To make this a life estate in the grantee, we must reject the most important words of the grant, or entirely pervert their meaning: Doe v. Prescott, 4 Johns. 70; Williams et ux. v. Leach, 4 Casey 88; Negley's Appeal, 9 Id. 89; McKey v. Kinley, Id. 92; Reifsnyder v. Hunter, 7 Harris 41; and Walker v. Vincent, Id. 369. See also 1 Hare's Rep. 428; 1 Jacobs & W. 158; 31 State Rep. 292.

II. If the grantee did not take a fee simple under the deed, it must have been a fee tail. While the general rule is that "heirs of the body" are words of limitation, and that "children" is a word of purchase, these words do not always control. The intent of the testator or grantor as gathered from the words used, may control the words "heirs of the body" so that they signify children, and are words of purchase; and the word "children" so that it will be construed to mean "heirs of the body," and consequently a word of limitation: Hayes on Estates Tail.

The great question is, would the children of F. A. Tyler, on his death, take an estate from their father by descent, or a new estate by virtue of the grant of the fee to them by Francis Tyler. If they took under the grant they had a vested interest in remainder the moment the deed was executed, for every estate must take effect presently, either in possession or remainder.

If we examine the words used by the grantor in this case, we shall be troubled to find that he grants to the children of F. A. Tyler any estate whatever; he has not used words to vest in them any interest until the decease of the grantor, their father. The fee simple passed by the deed, and if it did not vest in the children it must have vested in F. A. Tyler. It is evident that the grantor used the word children in the meaning of heirs of the body, or issue, for in the premises of the deed he uses the word heirs without distinction as to the two divisions of land, gives a fee in the whole to the grantee, subject to the limitations, &c. The fee is what he undertakes to limit and control by directing that it shall descend and be vested in the children of the grantee after his death. The estate is granted in fee by the use of the word heirs; did the grantor mean anything but heirs in the habendum when he used the words children and their heirs and assigns for ever? It is conclusive that he did not, for he continues the estate from the grantee by descent to his children at his decease, thus making children mean heirs of the body, or issue lawfully begotten, taking by descent and not by purchase. The word descent has but one meaning, and its use by the grantor here shows conclusively that the grantee had an inheritable estate to descend to his children (issue lawfully begotten).

The decided cases show that where an estate for life is first given to A., and then limited in remainder to the heirs of A.'s body, A. will take an estate tail, although this may appear to defeat the intent of the grantor or testator: and this rule not only applies in cases where words of limitation are used, as heirs of the body, but also where other words to the same effect are used, such as son's children, &c., so long as they are used in that sense: Smith v. Webber, 1 B. & Ald. 713; Blesard v. Simpson, 3 M. & G. 930 (E. C. L. R. 42); Millish v. Millish, 2 B. & C. 520; Wright v. Leigh, 15 Ves. 564; Hodge v. Middleton, 2 Doug 431; Broadhurst v. Morris, 2 B. & Ad. 1; Voller v. Carter, 4 Ellis & Bl. 172 (E. C. L. R. 82).

The doctrine that wherever children is used as a word of limitation it is construed to mean "heirs of the body," is recognised by our courts: Gernet et al. v. Lynn et al., 7 Casey 99; Ellet v. Paxton, 2 W. & S. 418.

It is clear that when "children" is used as a word of limitation, it comes within the spirit and meaning of the rule in Shelly's Case. Whenever the word "children" is used to designate the persons who are to receive the estate from their immediate ancestor, it is a word of limitation; but where it is made the terminus or stock from which a new succession springs, there it is a word of purchase: 2 B. & P. 485; Moore 307; Wood et ux. v. Baron, 1 East 259; Robinson v. Robinson, 1 Burrows 38; Hileman v. Bouslaugh, 1 Harris 351; Roe v. Bedford, 4 M. & S. 363; Rundale v. Eely, Carter 170.

The words used in the grant, "heirs and assigns for ever," cannot, by the context, be changed so as to destroy the inheritable estate. The word heirs may be limited to the body of the first taker in the habendum, so as to create an estate tail, but not to destroy the inheritance and make a life estate of it: Breitenback v. Dungan, 1 Am. Law Reg. 419; Wager v. Wager, 1 S. & R. 375; Earl of Rutland's Case, 8 Co. 112.

It is contended that because the children are to take as "tenants in common," they must take by purchase; that it is contrary to the "common law rule of descent applied to estates in...