Wilson v. Heilman

• Decision Date: 06 January 1908
• Docket Number: 168
• Citation: 68 A. 674,219 Pa. 237
• Parties: Wilson v. Heilman, Appellant
• Court: Pennsylvania Supreme Court

68 A. 674

219 Pa. 237

Wilson v. Heilman, Appellant

No. 168

Supreme Court of Pennsylvania

January 6, 1908

Argued October 17, 1907

Appeal, No. 168, Oct. T., 1907, by defendant, from order of C.P. Armstrong Co., Sept. T., 1907, No. 87, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Mary Jane Wilson v. J. M. Heilman. Affirmed.

Assumpsit for balance of purchase money. Before PATTON, P.J.

From the record it appeared that the plaintiff, by articles of agreement, sold certain real estate situate in East Franklin township to the defendant. The defendant refused to make payment on the ground that plaintiff had not a good marketable title in fee simple to the real estate in question. It appeared that plaintiff was the widow of Josiah K. Wilson, her husband dying in 1892. She has several children living. By a deed dated March 7, 1877, George Bowser and others made a deed of the land in question to one Henry Blair. The grant was "to Henry Blair in trust nevertheless, for the sole and separate use, benefit and behoof of Mary Jane Wilson, wife of Josiah K. Wilson, for and during the term of her natural life and then at the death of said Mary Jane Wilson in fee to the children and heirs of the body of the said Mary Jane Wilson or such as may then be alive, and to the heirs of any deceased child leaving children according to the share proportion such children would have taken if living, the consideration money hereof having been paid and advanced by the father and relatives of the said Mary Jane Wilson, and not by her said husband. And further in case said Mary Jane Wilson should die without leaving issue of her body, the property herein conveyed to revert to and vest in the legal heirs of James Blair."

The court, in an opinion by PATTON, P.J., held that the plaintiff had a good title in fee, and made absolute rule for judgment for want of a sufficient affidavit of defense.

Error assigned was the order of the court.

Judgment affirmed.

C. E Harrington, for appellant. -- It must be considered that the trust in the present case arises by deed, and that the intention of the grantor is clearly to protect the estate for the remainder-men: Wolfinger v. Fell, 195 Pa. 12; Little v. Wilcox, 119 Pa. 439.

It is clear that by the use of these words the children of Mary Jane Wilson were selected on their own account and not as heirs of her body: Curtis v. Longstreth, 44 Pa. 297; Cote v. Von Bonnhorst, 41 Pa. 243; King v. Savage Brick Co., 30 Pa.Super. 582; Guthrie's App., 37 Pa. 9.

The rule has been well expressed that where the limitation over is to take effect upon the failure of children only, or the failure of issue within a given time, then the first taker has a life estate only: Stoner v. Wunderlich, 198 Pa. 158; Nes v. Ramsay, 155 Pa. 628; Beckley v. Riegert, 212 Pa. 91; Corrin v. Elliott, 23 Pa.Super. 449.

Rush Fullerton, for appellee. -- Where an estate is granted to trustees for a particular purpose, the legal estate vests in them as long as the execution of the trust requires it, and no longer: Steacy v. Rice, 27 Pa. 75; Shalters v. Ladd, 141 Pa. 349; McKee v. McKinley, 33 Pa. 92.

The roundabout way which the testator takes to say heirs does not affect the substance, for the second takers here are the lineal descendants of the first taker, and creates a fee tail: Simpson v. Reed, 205 Pa. 53; Freyvogle v. Hughes, 56 Pa. 228.

The rule in Shelly's case is a rule of law, not a rule of construction, and where a case falls within it, it applies inexorably without reference to intent: Shapley v. Diehl, 203 Pa. 566; Linn v. Alexander, 59 Pa. 43; Mason v. Ammon, 117 Pa. 127; Boyd v. Weber, 193 Pa. 651; Pifer v. Locke, 205 Pa. 616.

If a devise over is to take effect on the indefinite failure of issue of the first taker, the first taker takes an estate tail, which estate tail cannot be destroyed by later expressions in the deed limiting an estate over upon an indefinite failure of issue standing alone, unexplained and independent of other language in the same deed to bring it within the rule that a definite failure of issue was intended: Seybert v. Hibbert, 5 Pa. Superior Ct. 537; Cooper v. Leaman, 212 Pa. 564; Richards v. Bentz, 212 Pa. 93; Hogg's Estate, 27 Superior Ct. 428; Grimes v. Shirk, 169 Pa. 74; Hannon v. Fliedner, 216 Pa. 470; Hastings v. Engle, 217 Pa. 419.

Before MITCHELL, C.J., FELL, BROWN, MESTREZAT, POTTER, ELKIN and STEWART, JJ.

OPINION

MR. JUSTICE ELKIN:

The correctness of the judgment entered in the court below depends upon the construction of the words used in the deed creating a trust estate for the sole and separate use of Mary Jane Wilson, who at the time of the conveyance was a married woman living with her husband. The deed in express language recites the fact that the consideration paid for the properties was advanced by the father and relatives of the wife, and not by her husband. It is perfectly clear that the intention of the donors was to protect the estate of the wife thus created from the improvidence of the husband. That the deed was not drawn by a skillful scrivener is apparent, and that the words used in creating the trust are somewhat confusing and ambiguous must be conceded. On the whole, however, we think the intention of the parties is plain, and the conclusion reached by the learned court below is correct. It is argued for appellant, and with much force, that Mary Jane Wilson, under the provisions in the deed only took an equitable life estate, and that the legal remainder vested in her children as purchasers under the original grant. If this position were sound it would necessarily follow, as contended, that the two estates, one equitable the other legal, not being of the same character, did not coalesce upon the death of the husband. We do not accept this view of the law as applied to the facts of this case. The deed created a coverture trust for the protection of the wife, and when she became...