Langley v. Heald , 7 Watts & Serg. 96 ( 1844 )

The opinion of the Court was delivered by

Sergeant, J.

The question that arises in this case is, whether the devisee Passmore Heald took an estate in fee with an executory devise over to the testator’s daughter Elizabeth, or an estate tail. In the former case, the title of the purchaser at sheriff’s sale is good; in the latter, the plaintiff below is entitled as heir in tail. The principle is now settled by frequent decisions, and especially in the case of Pells v. Brown, (Cro. Jac. 590), which is considered a leading case on this subject, 3 Yeates 221, 7 T. R. 596, that an executory devise over after an indefinite failure of issue is too remote; but if the failure of issue be limited to a life or lives in being, and 21 years and some months after, it is good. Where, therefore, the father in that case devised his lands to his youngest son and his heirs, and if he died without issue, living the eldest, then to him and his heirs, it was held that the youngest son took a fee which was determined by his death without issue during his eldest brother’s life-time, and that the eldest brother took. So in a still earlier case, Hynd v. Lyon, (5 Bac. Ab. 777, tit. “ Rem. & Reversion”), the devise was to the son and his heirs, and if he died before 24 and without heirs of his body, remainder over; the remainder over was held good. Applying this rule to the case before us, it seems the estate devised to Passmore Heald was a fee, and the remainder over good as an executory devise; but as the event did not happen on which Passmore’s estate should be defeated, it became a fee-simple absolute. For the words are, “ If he die and leave no lawful issue, then to his daughter Elizabeth if she shall be then living, and to her heirs and assigns forever,” in which the word “ then” refers to the death, and the period contemplated is whilst Elizabeth is living. The case falls within the class mentioned in Eichelberger v. Barnitz, (9 Watts 450), as exceptions to the general rule that the words, if he die without issue, or on failure of issue, or for want of issue, or without leaving issue, then over in fee, the estate of the first taker is a fee-tail; that is to say, it ranks in that class where the period at which the devise over is to take effect is expressly or impliedly limited to the time before, mentioned, and in which the testator has been considered as meaning a failure of issue within a fixed period, and not an indefinite failure of issue. When the first estate is for life, the construction may be otherwise, as in Wyld v. Lewis, (1 Atk. 432), where the testator devised .to his wife E., without any words of limitation, and that if she should have no son or daughter by him begotten on her body and for want of such issue, then the premises, to return to his brother I.W. if he be then living, and his heirs forever. This was held by Lord Hardwicke an estate-tail in E., but on ¡.the ground that by an opposite construction the, testator’s grand-children would be excluded, and, as Mr Powell remarks, the children also. 2 Pow. Dev. 583. But no such reason applies where the devise to the first taker is a fee; and therefore the construction has been uniformly otherwise in words of similar import. Here the first devise is of a fee, subject to be defeated by the death of Passmore without issue during the life-time of Elizabeth: and that event not having occurred, his estate became absolute.

Judgment reversed, and judgment for defendant.