Peirce v. Hubbard , 152 Pa. 18 ( 1892 )

Opinion bt

Mr. Justice McCollum,

Refraining from any expression of opinion in harmony with or adverse to the views of the learned judge of the court below, respecting the rule in Shelley’s Case, and the alleged perversions of it, we concur in his conclusion that the appellants have no title to the land in dispute. Their claim to it rests on a construction of the will of Joseph Martin du Colombier, which is not demanded by that rule or by any expressed or implied intention of the testator. Indeed, their contention, if successful, will defeat his manifest purpose in the disposition of that portion of his estate which is the subject of this controversy. It is our duty in the interpretation of his will to avoid such a result, unless it is compelled by some inexorable rule of construction. The testator having provided that his debt to the bank and the annuity to his widow, should be paid from the rents of his store on Market street, directed that one third of the surplus of such rents should be paid to his daughter, Caroline McKee, and that on the sale of said store after the expiration of the lease to “ Tingley & Burton & Co.” one third of the amount of the sale should be invested in mortgages, etc., the interest to be regularly paid to her “ free from control, liabilities and debts of her husband; and in case of her death without issue or issues of her children, then reversible to my (his) right consanguinary heirs.” It is claimed by the appellants that, under the provisions of the' will we have summarized, Mrs. McKee became possessed of an estate in fee simple in one third of the Market street property, and by the appellees that she took but a life estate therein, and at her death without children or their issue surviving her the remainder vested in the persons who were then the right heirs of the testator.

It is apparent on the face of the will that the claim of the appellees is in accord with the intentions of the testator respecting the property in question. It must be conceded however that the word “ issue ” in a will, prima facie, means “ heirs of the body,” and that the expression “ in case of her death without issue,” standing alone, imports a general indefinite failure of issue, and not a failure at the death of the first taker. But in either case the prima facie and technical meaning of these words must yield to a manifestly contrary intent gathered from the whole will. If it appears that the testator used the word “ issue ” in the sense of “ children,” it will be construed as a word of purchase in order to give effect to his intention. In the present case we think the word “ issue ” was so used. The language of the testator is, “and in case of her death without issue, or issues of her children,” then over, etc. The obvious meaning of the paragraph in question is that if his daughter Caroline died without children or their issue living at her death, the remainder should vest in the persons who at that time answered the description of his “ right consanguinary heirs.” In the devise over Mrs. McKee took no interest. It was contingent; it could not be known until her death that anything would pass by it, and on the happening of the contingency of her death without children or their issue surviving her, the persons entitled to take under it were those who were then the right heirs of the testator. It is suggested that the appellants’ contention is sustained by McKee v. McKinley, 33 Pa. 92. That case involved the construction of another clause of the will under consideration, and, it must be admitted, is apparently in conflict with our conclusion. But to the extent that it is applicable to this case, it was substantially overruled in Guthrie’s Ap., 37 Pa. 9, and has not since been recognized as authority.

The specification of error is overruled.

Judgment affirmed.