Beilstein v. Beilstein , 194 Pa. 152 ( 1899 )

Opinion by

Mr. Justice Mitchell,

The language of the will is “it is my desire that my daughter Gertie Beilstein shall receive the income of my property .... as long as she lives, but .should she die without leaAdnga family ” then over to testator’s brothers and sisters, the appellants.

The gift of the income is the gift of the land itself: Drusadow v. Wilde, 63 Pa. 170; Curry v. Patterson, 183 Pa. 238. In the former case it is said by Sharsavood, J.: “There is no construction of words older and better settled than that a grant or devise of the profits of land passes the land itself, ‘for what* says Lord Coke, ‘ is the land but the profits thereof, for thereby vesture, herbage, trees, mines and all Avhatever parcel of the land doth pass.’ Co. Litt. 4, 6.”

The devise over in case Gertie should die “ Avithout leaving-a family ” is an implied devise to her family if she should leave one. It is only if she does not, that the devise over is to take effect, and there is a necessary implication that in the other unexpressed contingency of her leaving a family the estate is-to go to them. This is practically assumed Avithout question in the long line of cases on the subject, which are carefully-reviewed in Seybert v. Hibbert, 5 Pa. Superior Ct. 537. The contest in all of them has been whether the devise over was upon a definite or an indefinite failure of issue.

The present case, therefore, turns on the meaning to be given to the word family in the testator’s intent. Family is not a technical word, nor can it be given any technical meaning, irrespective of the context and scope in which the testator used it. It is conceded that it includes children, and the appellant’s contention is that it means children only. But it is a broader word than children. In a very common, if not the most usual sense, it includes all the persons of the same blood who are dwelling together in one household, and in many cases even the condition of the same blood is not requisite, and servants and others may be included, as for instance, for the service of process. As already said, it is admitted that the testator by the word family meant to include children. If the devisee had been married, and with children and grandchildren all dwelling with her as part of her household, when the testator wrote his will, there could be no doubt whatever that the testator if he had then used the word family meant to include them all. But on what ground shall we assign it a narrower meaning when used with reference to the indefinite future ? When he wrote his will his daughter was a child of ten years, and he was providing for her in her unknown circumstances after his death. He foresaw that if she lived to grow up she might marry and have children, and he meant to provide for them as well as for her. Even the word children may be construed to include grandchildren if it clearly appears that it was used with that intent: Eichelberger’s Est., 5 Pa. 264. Had the testator used the word children, and his daughter had survived all her children and died leaving grandchildren only, it hardly admits of doubt that the true construction of his intent would have included them. But he used a more comprehensive word than children, a word that would certainly have included grandchildren and remoter descendants if in existence then, and we see no reason to exclude them from his meaning, though children and grandchildren were then all alike only in posse. The natural scope of the word family in this connection is shown by Justice Bell’s use of it in the opinion in Eichelberger’s Est., supra: “ It is plain that when preparing his will (the testator) had in his mind’s eye all his family consisting- of his immediate descendants then hving.”

We are, therefore, clearly of opinion that by the words “die without leaving a family ” the testator meant die without issue or heirs of her body, and under all our cases this refers to an indefinite failure of issue, which creates a fee tail in the first taker, enlarged to a fee simple by the statute. Judgment, therefore, was properly entered for defendant.

Judgment affirmed.