Xander v. Easton Trust Co.

• Decision Date: 01 April 1907
• Docket Number: 399
• Citation: 66 A. 759,217 Pa. 485
• Parties: Xander v. Easton Trust Company, Appellant
• Court: Pennsylvania Supreme Court

66 A. 759

217 Pa. 485

Xander v. Easton Trust Company, Appellant

No. 399

Supreme Court of Pennsylvania

April 1, 1907

Argued March 13, 1907

Appeal, No. 399, Jan. T., 1906, by defendants, from judgment of C.P. Northampton Co., Nov. Term, 1906, No. 93, on case stated in suit of George L. Xander, Administrator d.b.n.c.t.a. of Samuel Hayden, deceased, v. The Easton Trust Company, Trustee of Cornelius Hayden, and Edward Dreyfus Executor of Cornelius Hayden, deceased, Nellie A. Lochman and Harry E. Hayden, Legatees and Intervenors. Affirmed.

Case stated to determine the title to real estate. SCOTT, J filed the following opinion:

The single question for decision here is whether Cornelius Hayden was invested with an absolute estate, devised by his father in the paragraph of the will, a copy of which follows, viz.:

"The rest and remainder of my estate, real, personal and mixed of whatever nature and kind the same may be, I give, devise and bequeath unto my children and grandchildren in manner as follows, to wit: The same to be divided into five equal shares of which my son Howard A. Hayden shall receive one equal share; my son George W. Hayden one equal share; my son Cornelius Hayden one equal share, which said one equal share shall be invested by my hereinafter named executor, who shall pay the annual interest or income arising therefrom to my said son Cornelius Hayden and upon his death divide it among the children of the said Cornelius Hadyen share and share alike; one of said equal parts of my estate as aforesaid divided between my son Edward Hayden and his son Harry Hayden in the manner following, to wit: three-fourths of the said equal share to my son Edward Hayden and one-fourth of said one equal share to his son Harry Hayden; the remaining one-fifth equal share of my estate as aforesaid to be divided share and share alike among Cora Hayden, Daniel Hayden and Nina Hayden, the three youngest children of my deceased son Daniel Hayden; in case any of the said three grandchildren should be dead at the time of my decease, then the share or shares of such deceased grandchild or grandchildren is to be divided equally between the survivor or survivors of them; in case any of the said three grandchildren should die after my decease, then the part or share of such deceased grandchild or grandchildren shall go to the survivor or survivors of the three; in case all three of the children aforesaid, to wit: the children of my deceased son Daniel should die without lawful heirs, then in that case the part or share of my estate that went to such child or children, shall revert to my estate and be divided equally among my sons Howard A., George W., Edward and Cornelius, share and share alike forever."

Under the stipulation filed and upon the statement of facts therein contained, judgment is to be entered for the plaintiff, as administrator d.b.n. with will annexed of Samuel Hayden, deceased, if Cornelius Hayden had but a life estate; otherwise for defendants.

If it be conceded, notwithstanding the primary and technical meaning attached to the word "children" as one of purchase (Pifer v. Locke, 205 Pa. 616), that it was clearly the intention of the testator the remainder-man should take by descent from the donee as "heirs of the body;" that the devise would thus in ordinary cases become absolute by the operation of the rule in Shelley's case (Haldeman v. Haldeman, 40 Pa. 29; Yarnall's Appeal, 70 Pa. 335; Simpson v. Read, 205 Pa. 53; Vilsack's Estate, 207 Pa. 611); that this testamentary purpose is apparent from the will itself beyond all doubt (Guthrie's Appeal, 37 Pa. 9; Oyster v. Oyster, 100 Pa. 538); that the provision for division over distributively as tenants in common, but without superadded words of limitation, does not so support the original presumption of taking by purchase that an intent otherwise may still be patently implied (Guthrie's Appeal, 37 Pa. 9; Haldeman v. Haldeman, 40 Pa. 29; Physick's Appeal, 50 Pa. 128; Ogden's App., 70 Pa. 501) all of which is not too certain, yet there is a serious obstacle in the path of the contention that the estate of Cornelius became absolute.

The rule in Shelley's case cannot be applied unless the estate of the life tenant and that of those in remainder are the same quality; both must be equitable or both legal. If there be an active trust for the former, with remainder over of the legal estate, they will not unite: Rife v. Geyer, 59 Pa. 393; Little v. Wilcox, 119 Pa. 439; Eshbach's Estate, 197 Pa. 153; nor if there be a special trust to preserve contingent interests.

The residuary estate of the testator is divided into five equal shares, one of which the devisee was to receive, but "which said one equal share shall be invested by my hereinafter named executor, who shall pay the annual interest or income arising therefrom to my said son Cornelius Hayden, and upon his death" divide it share and share alike among his children.

The son was unmarried and...