Greenawalt v. Greenawalt , 71 Pa. 483 ( 1872 )

The opinion of the court was delivered, by

Sharswood, J.

When this will of Leonard Greenawalt was before this court in Greenawalt’s Appeal, 1 Wright 95, the construction put upon it was that Samuel Greenawalt took an estate in fee, subject to an executory devise in favor of his son Calvin, and in the contingency of failure of his issue, ah executory devise in favor of Josiah Greenawalt and Sarah Eichthorn. It was not a mere obiter dictum, but part of the ratio decidendi. The question arose upon the power of the Orphans’ Court to order a sale under the Act of April 18th 1858, Pamph. L. 503, against the objection of Josiah Greenawalt. “As already remarked,” says the present Chief Justice in delivering the opinion of the court, “ the fee was devised by very sufficient terms to pass it to Samuel Greenawalt and to his heirs and assigns. The limitations over to Josiah, in the event of the death of Calvin, the son of. Samuel, without issue, could only have effect by way of executory devise. It could not exist as a remainder, for the entire estate passed to Samuel, subject to the life estate of Maria, and there could be no remainder in an entirety. Such interest as this by the express terms of the act may be sold. Estates whereon are limited contingent remainders or executory devises are subject to sale. The compensation in the act is the substitution of the fund to the same uses and persons as was the land. So this interest is not in the way.” As it is clear that this was not a mere obiter dictum, so it is equally clear that it was not the result of inadvertence, as it is considered to have been in one of the opinions of the learned judge below. There is no reason for thinking that the whole will was not read and every part of it adverted to. We are of opinion that the construction thus put upon the provisions of the will of Samuel Greenawalt, was the true and sound exposition of them. There is nothing in the subsequent clause referred to, which shows that the testator intended Samuel to take only an estate for life, notwithstanding the express devise to him “ and to his heirs and assigns.” That clause is as follows: “ If, however, my said son Samuel should have other children born to him hereafter, then the devise to him, his heirs and assigns, to be absolute, subject only to the reservations made in favor of my daughter Maria.” Absolute is not a word used legally to distinguish a fee from a life estate, but to distinguish a qualified or conditional from a simple fee. What the testator evidently meant, and expressed it very clearly and properly, was that in the event of Samuel having other children born to him, his estate should no longer be subject to these executory devises over, but should be absolute, subject only to the reservation made in favor of Maria.

Although there was in Greenawalt’s Appeal, there is no question here, as to what estate Samuel Greenawalt had under the will. He died leaving his son Calvin surviving him, and having had no other children born to him. The important question here is, what estate did Calvin take, which is a different question from whether he took an executory devise grafted upon a fee, or a remainder after a life estate in Samuel. We agree with the learned judge below that it was an estate tail by implication. Upon the death of Samuel Greenawalt, Calvin’s estate became a vested estate tail in remainder, subject to the life estate of the widow of Samuel Greenawalt, which was to take effect in possession immediately upon, and subject also to Maria’s interest. The only contention which has been made on this question is, that the devise over after the failure of issue shows that a definite failure of issue living at Calvin’s death, was only intended. Now had the devise over to Josiah Greenawalt and Sarah Fichthorn been expressly for their lives, there would be a good foundation for this argument, according to the case of Taylor v. Taylor, 13 P. F. Smith 483, and the authorities there referred to. But the devise over was in fee — a devise of the whole estate of the testator remaining after the particular estates which had been cut out of it — and this by the evident intention as well as by the 9th section of the Act of April 8th 1833, Pamph. L. 249. There is nothing then in the devise over to show that the testator contemplated necessarily a failure of issue within the lifetime of Josiah Greenawalt and Sarah Fichthorn. He gave them a fee in remainder, which vested immediately on the death of Samuel Greenawalt, to take effect in possession when the issue of Calvin inheritable to his estate should fail. Upon the death then of Samuel Greenawalt, the limitations stood, subject to the provision in favor of Maria not necessary to be here considered, to the widow of Samuel Greenawalt for life, remainder to Calvin in fee tail, remainder to Josiah Greenawalt and Sarah Fichthorn in fee simple. Calvin then could dock the entail, and bar the remainders after his estate by a deed executed and acknowledged in conformity to the provisions of the Act of January 16th 1799, 3 Sm. L. 338, which includes expressly estates in remainder as well as in possession. The case agreed states that Calvin, after the death of his father, did, in due form of law, execute a deed to bar the entail. It follows that the judgment below on the case stated for the defendant was right.

Judgment affirmed.