List v. Rodney , 83 Pa. 483 ( 1877 )

Mr. Justice Mercur,

delivered the opinion of the court, May 7th 1877.

The defendants in error derived title to the real estate in controversy under the will of James S. Duval. The language, in item No. 2 of the original will, is, “ to my daughter, Sarah Rodney, I bequeath” (the land in question) “ to be held by her husband John Rodney, whom I hereby appoint trustee, in trust for her children.” By codicil thereto he further devised and declared “that in item No. 2 of my said will the devise to my daughter Sarah Rodney, and to her children, is intended and shall give to her children living at her death, and to the lawful issue of any of them, if dead, in right of such one deceased, and to their heirs for ever, share and share alike, the real estate of the said clause of my will so devised, and for Avant of such issue living, then that the real estate so devised to my daughter Sarah shall go to and vest in her husband during his natural life for his own use and benefit, subject to the trusts in the said clause mentioned.”

At the time of the execution of the will and codicil Sarah Rodney had two children. Two other children were born afterwards. One of the former and one of the latter died unmarried and without issue. Sarah Rodney and her husband are still surviving. They, and the two surviving children, constitute the defendants in error. Can all of them jointly convey a good and marketable title in fee simple to the land in question ? To maintain this action they must not only show their title to be good, but it must also be ■ marketable. The vendee is not bound to accept a doubtful title. Every title is doubtful which exposes the party holding it to litigation : Bumberger v. Clippinger, 5 W. & S. 311; Speakman v. Forepaugh, 8 Wright 363; Doebler’s Appeal, 14 P. F. Smith 9; Swayne v. Lyon, 17 Id. 436.

If under any contingency of the will there may be a devisee over, who is not a party to this suit, he would not be bound by anything we may now decide. As then he would nof be absolutely concluded by this judgment, the vendee would be exposed to the peril and annoyance of litigation from such devisee : Id.

It is true, to justify the rejection of the 'title the doubt must be considerable or rational: Stapylton v. Scott, 16 Vesey 272. The possibility on which .a remainder is to depend must not be too remote : Fearne on Remainders 250. It should be a common possibility, such as death, or death Avithout issue, or coverture or the like: Id.

Guided by these rules, we proceed to consider whether the defendants in error can noAV convey a title clear from such a degree of doubt as to be fatal to their recovery.

By looking at both parts of the will it is very evident that the testator intended to give to his daughter, Sarah Rodney, a life-estate only. In the original Avill he gave her the property and appointed her husband trustee thereof, for her children. This clause on its face does not clearly express the precise estate his daughter should take, nor the time Avhen an estate should pass to her children. Under the authorities, however, the daughter would have taken a life-estate only with remainder to her children. The case of Shirlock v. Shirlock, 5 Barr 367, would indicate that she might have taken that as tenant in common with them. The later cases, however, establish that she would have taken a life-estate in the Avhole, Avith remainder to her children: White et al. v. Williamson et al., 2 Grant 249; Cote v. Von Bonnhorst, 5 Wright 243; Curtis v. Longstreth, 8 Id. 297; Coursey v. Davis, 10 Id. 29. That such was the testator’s intent is clearly expressed in the codicil. He therein recognises the devise previously made to his daughter and her children, and then hb declares his intent to be to “ give it to her children living at her death, and to the lawful issue of any of them if dead.” He does not disturb her life-estate previously given. By giving no estate to her children during her life, he manifestly gives her a life-estate in the whole, and distinctly defines the time when the remainder shall take effect. Neither the words of the codicil nor its spirit indicate a present intent to give any estate to the children in esse; but an intent to give in the future. That future time was fixed. It was to be at the time of the death of his daughter. The class of persons who might at that time be living, and who answered the requirements of the will, were then to take. Until the death of his daughter he gave her children nothing. At her death he gave to such of her children as might then be living and to the lawful issue of any of them who were then dead. It is very clear that the testator did not intend to give, during the life of his daughter, any vested estate to her children in esse at the date of the will, nor to her subsequently-born children. If it vested in the children during the life of their mother they could alien the same or it might be taken from them by adverse process. It would be doing great violence to the whole language of the codicil to give that construction to the devise : Abbott et al. v. Jenkins, 10 S. & R. 296. The intention of the testator being thus made clear, the rule in Shelley’s case cannot be invoked to prevent that intention from being effective. It is only after the intention has been discovered that the rule in Shelley’s case can be applied. It cannot be used as a means of discovering the intention : Fearne on Contingent Remainders *188; Hileman v. Bouslough, 1 Harris 351; Doebler’s Appeal, 14 P. F. Smith 9; Yarnall’s Appeal, 20 Id. 335.

It is true in doubtful cases, the construction should be in favor of vested, in preference to contingent, remainders, but it does not seem to us that sufficient doubt exists in this case to give it that effect. The case of Womrath v. McCormick, 1 P. F. Smith 504, has been cited to prove the estate was vested as to the children in esse at the execution of the will. That case, however, is distinguishable in several respects from this. There, the devisees in remainder were all in esse and ascertained. They were the children of the devisor. There was nothing contingent as to the interest devised, more than always exists as to the immediate remainder-man. That is, he must outlive the particular tenant for the estate to vest in possession. There the testator gave the “ rents, income and interest” of all his estate, real and personal, to his wife during her life, and directed that upon her death it should be valued and divided into as many parts as he should then have children living, the issue of any deceased child to represent their respective parent or parents. There the devise was to all the children of the testator. Not so the present case. Here the devise of the life-estate was to one only of his several children, and the remainder to the children of that child only. Here the interest which the children in esse should take depended upon the contingency of children being subsequently bom. There is no gift to the whole class of children before the mother’s death. Here is not merely the postponement of a division of the estate until the death of the life-tenant; but the remaindermen cannot be known until the time arrives to designate them. Prior to that time it is necessarily contingent so far as relates to the persons who are to take : Smith on Executory Interests 281; McBride v. Smyth, 4 P. F. Smith 245.

If we are correct in the views expressed two conclusions follow:—

1. If any of the children now living should die during the life of their mother, leaving lawful issue, the title of such issue will not be barred by the deed of their parent.

2. If other children should be born and survive their mother, they will be entitled to share in the estate. 'JChis cannot be denied. It is contended, however, that the advanced age of Mrs. Sarah Rodney precludes such an event. We may concede that she has passed the age to Avhich the ability to bear children usually continues; yet the law appears to have settled that there is no age beyond which it is impossible. “ A possibility of issue is always supposed to exist in law * * * even though the donees be each of them an hundred years old:” 2 Blackstone’s Com. *125. “For that the law seeth no impossibility of having childrenCoke on Littleton 28, a. Whether the rule rests upon the indelicacy of the acts to which such an inquiry might lead, or to the great uncertainty of arriving at' an accurate conclusion, we know not; but certain it is, the rule has stood the test of time, and received the sanction of ages. No case has been cited showing that it has ever before been questioned in Pennsylvania. Nature has fixed no certain age, by years, at which a child-bearing capacity shall begin or end. Any conjecture based on age is too doubtful and uncertain to result in any reliable conclusion. It was well said in Jee v. Audley, 1 Cox 324, “ if this can be done in one case it may in another, and it is a very dangerous experiment, and introductive of the greatest inconvenience to give a latitude to such sort of conjecture.”

It is contended that this doctrine of possibility of issue is only applicable to cases of estate tail after possibility of issue extinct; that it is simply a presumption governing the devolution and quality of estates, and that it should not be presumed Avhen the facts show it to be impossible. This argument is fallacious. The very question before us is whether the possibility of issue is extinct. It affects the transmission of the estate. It diminishes the interests which the children noAv living may take. The presumption of Iuav is in favor of issue, notwithstanding advanced age. It is a presumption of laAV on the very fact, which Ave are requested to say destroys the presumption. The argument makes a conjectural conclusion rest on a fact, when the law declares no such conclusion shall be deduced from that fact.

The two contingencies we have considered are not too remote. They are the direct and immediate contingencies provided for by the testator, as likely to arise before the estates in remainder should vest-in his daughter’s children and in their issue. Neither one is so entirely removed from doubt as to make the title of the vendors certain. They leave a cloud on the title which creates doubt and hesitation. We therefore conclude that the defendants in error cannot convey such an indubitable, marketable title as to compel its acceptance. The learned judges therefore erred in holding otherwise.

Judgment reversed and judgment in favor of the plaintiff in error, on the case stated.