Braden v. Cannon , 24 Pa. 168 ( 1854 )

The opinion of the Court was delivered by

Woodward, J.

Had the testator stopped at that clause in the devise of the real estate at which he charged theMgaey of James and his support and education on the land given to William and John, they would, beyond controversy, have taken a fee simple, for nothing less could result from a devise óf all his real estate to them, share and share alike, subject to legacies, not only to James, but to the daughters ..also. Then, on the death of William, and John without issue, the e'state would have gone to James and the sisters, as heirs at law. But he did not stop at that clause, but added, “ if any of my sons depart this life without a legal heir, his part or portion, of him so dying, shall go and be equally divided among the survivors of my sons” — an impossible condition, if the technical meaning he assigned to the term “ legal heir,” for neither of the devisees could die leaving a' survivor, and be’ without a “ legal heir.” We defeat the manifest intention of the testator if we construe these words according to their ordinary signification. A former part of the will shows that he intended his. daughters should have the bulk of the personal estate, as the above clause proves that he meant the real estate should go to the sons. In respect to the personalty, he said in the last clause of the will, “ my meaning is that in case of any my daughters departing this life without a legal heir of her body begotten, her or their part or portion so dying shall be equally divided among her surviving sisters or sister.” The words of limitation in these two clauses, mean, we suppose, the same thing — the latter translate the former. The sons shall have the real estate, and if either dies without legal heirs of his body begotten, that is without a legitimate child, it shall go over to the survivors; the daughters shall have the personal estate, and if either dies without a legitimate child, it shall go over to the survivors. The expression “legal heir,” therefore, cannot be construed heirs generally, but must mean heir of the body or child.

To effectuate the clear intention of the testator, we habitually construe the words heir,- issue, children, interchangeably. A devise to a man and his children, or issue, or even without any words of limitation whatever, are held to pass the fee when such-intention is apparent from the whole will construed by its four corners; and, on the same principle, (the intention of the testator) the word heir may be controlled and reduced from its genuine sense to the significance of children or issue. “ A devisor who uses words of limitation in an improper sense,” said Judge GrlBSON, in speaking of the rule in Shelley’s Case (1 Harris 351), “ may so explain the meaning of them by other words in the context, as to exclude his devise from the rule; for it operates only on the intention where it has been ascertained, not on the meaning of the words used to express it.” In Porter v. Bradley, 3 Durn. & East 73, Lord Kenyon, speaking of the words “to him, his heirs and assigns, for ever,” observed, “it is clear those words may be restrained by subsequent ones, so as to carry only an estate tail.” And he adds, “ a long string of eases may be cited in order to show that where an estate is limited to a man and his heirs for ever, and if he die, without leaving heirs, then to his brother, or to any person who may be his heirs, these words shall not have their full legal operation, but shall be restrained to heirs of a particular kind, namely heirs of the body.” “ In the construction of wills,” said Doderidge, 3 Bulst. 303, “every string ought to give its sound.” It is apparent, said Yeates, J., (2 Teates 408), that to effectuate the general intention of the testator, the word “ heirs,” in the devise to his son Daniel, must be construed “ heirs of the body,” because otherwise the remainder limited over to the surviving children could not take effect.

Without multiplying authorities, these are sufficient for present purposes. The liberties which we are permitted and constrained to take with words of limitation in a will, in order to reach the general intention of the testator, are not tolerated in construing deeds. There grantors are presumed to intend what their words import; but so rigid a rule of construction applied to wills would defeat most that are made, overthrow titles, and produce confusion and discord in families.

Brought irresistibly to the conclusion that this devisor meant issue or children by the expression “ legal heir,” the necessary consequence is to reduce the estate of the first takers to a fee tail. That such would have been the effect of the devise over if the word issue had been used, is too well established in our own authorities to admit of doubt: Haines v. Witmer, 2 Yeates 400; Clark v. Baker, 3 Ser. & R. 470; Caskey v. Bremer, 17 Ser. & R. 441; Heffner v. Knepper, 6 Watts 18; Eichberger v. Barnitz, 9 Id. 447; Langley v. Heald, 7 W. & Ser. 96 ; Lapsley v. Lapsley, 9 Barr 130. If the words be construed child or children, the effect is the same, for the rule deduced from the English cases, as stated in Powell on Devises 496, is, that they have established, beyond contradiction, that a devise to a man and bis children, be having none at the time of the devise, gives him an estate tail. By the time of the devise, we are to understand, I apprehend, the time of its taking effect, rather than the time of making it; but the distinction is of no importance here, for neither when the will was made, nor when the testator died, had William or John a child. And devises to sons are governed by precisely the same principles as devises to children. Son is sometimes a word of limitation, and is synonymous with male issue: Powell 503.

Did John Braden, when he signed his will with a cross, intend to create an estate tail ? Nobody believes it. Not one layman in a thousand intends it. But he meant to give his land to his sons aiad his personalty to his daughters. That is apparent all over his will. Then come in these artificial rules of law to effectuate that paramount intention, and to compel execution of the will, not according to some learned conceit or imaginary equity, but in the very manner the testator would have had it executed. Accordingly we hold that this was an estate tail in the first- takers. But there is no entailment of the remainders, and the rule that requires the construction in favor of an absolute vesting at as early a date as possible, prevents us from inclining to construe them as such.

It follows, therefore, that when William died, the limitation over of his half took effect in favor of his two brothers in fee simple. And when John died, his half went to his surviving brother James in fee simple. Thus James became seised in fee under the will of the half which had been devised to John, and one-half of the half that had been devised to William. The other half of William’s share which had become vested in John in fee, descended on his death to his heirs, that is, his brother James and his five sisters, as tenants in common in equal proportions. Consequently, the plaintiffs are each entitled to one undivided twenty-fourth part of the land in controversy, and together to one-sixth part of it, and the defendant to the residue.

Judgment reversed and judgment as aboye.