Seybert v. Hibbert , 5 Pa. Super. 537 ( 1897 )

Opinion by

Smith, J.,

Under the will of his father, John Phillips, Sr., David Phillips took an estate in the land in controversy, which he devised to his sister, Margaret Hibbert. His only surviving child, Minnie Seybert, contends that under his father’s will he took but a life estate, and the remainder in fee vested in her. His sister contends that he took a fee tail, which, converted into a fee simple by the act of April 27,1855, passed by his devise to her. The rights of the parties, therefore, depend on the quantum of estate devised to David Phillips.

The devise is in the following terms : “ I leave and bequeath to my four younger sons, Jonathan T. Phillips, David Phillips, Timothy Phillips and John Phillips, all the residue of my farm together with the coal scaffold at the river and lot belonging to it during their natural lifetime to be equally divided amongst them in quantity and quality and providing any of them dies without heirs the share of the deceased shall be divided amongst the surviving ones and at their death to be divided amongst their children and so on from one' generation to another.”

From the variety of purposes and modes of expression found in wills, it is measurably true that each will is in the nature of a law unto itself, and that the construction given to one is no absolute guide to the meaning of another. The import of particular phrases, and even the effect of technical language and words of art, are so largely controlled by the context, the situation of the parties, and the evident purpose of the testator in its entirety, that language which in one will may be held to indicate a certain intention may in another, from differences in the context and the attending, conditions, receive a different interpretation. Nevertheless, there are some principles, definitely fixed, and invariable in their application, which are to be followed in the construction of all wills. “ Where well considered and unimpeached adjudications have assigned to certain forms of disposition a determinate result, we are bound by it as an ascertained law of construction: ” George v. Morgan, 16 Pa. 95, Bell, J. It is through the application of the rules thus ascertained that the question arising in the present case is to be determined. The principles to be applied here relate to the limitation of the estate given to the first devisee, the devise over upon his death, and the interpretation of the language employed in defining or describing the estates devised. A brief review of the authorities will exhibit the bearing of these principles on the case in hand.

While a will is to be so construed as to carry out, as far as practicable, the testator’s intention, it not infrequently happens that the intention is defeated by the inexorable legal effect of the language employed. Usually this result is due to the rule iii Shelley’s case. “ When a testator uses words, without explanation or qualification in the context, which, according to a settled rule of law, import an estate tail, the legal meaning of the will is to prevail over the actual intention of the testator: ” Vaughan v. Dickes, 20 Pa. 509, Woodward, J. The rule is the same when words are used that import a fee simple. As the testator cannot create estates that are inconsistent or incompatible with each other, a particular intent must yield to a general intent, when necessary to preserve the compatibility of the estates created. Where the general intention is that the first devisee shall be the root of a new succession, and that those in remainder shall take as his heirs either general or lineal, they take by descent from him; consequently the estate given to him must be a fee, since nothing but an inheritable estate can be taken by descent. A life estate in the first taker, who is to become the root of the new succession, is incompatible with the transmission of an estate of inheritance to his heirs. His estate, therefore, though from a particular intent limited in terms to his life, is by operation of law enlarged to an estate of inheritance that effect may be given to the general intent. No expression of intention, however explicit and absolute, can hold his interest down to a life estate when the further intention appears that those in remainder shall take as his heirs; hence, as was said by Mr. Justice Trunkey in Blair v. Miller, 30 W. N. C. 486, “ Wills have been turned upside down by the rule in Shelley’s case.”

A devise for life may be enlarged to a fee simple by a limitation, upon the death of the devisee, to his heirs, or to a fee tail by a like limitation to the heirs of his body. Such limita.tion will arise not only from the use of the words “ heirs,” or “ heirs of the body,” but from any equivalent expression not restrained in effect by a different intent appearing from the will as a whole. Examples of these results are numerous.

Thus, a fee simple has been created by the following limitations upon the death of the life tenant: “ With remainder over to his heirs in fee: ” Doebler’s Appeal, 64 Pa. 9; “ To the lawful heirs of them the said A. and wife in fee simple: ” Auman v. Auman, 21 Pa. 343; “ To be equally divided among them the right heirs of my said niece: ” Physick’s Appeal, 50 Pa. 128 ; “ Reversible after her death to her children, if any surviving, or issue of such children: ” McKee v. McKinley, 33 Pa. 92; “ To such persons as at the decease of the said E. shall and may be her heirs or legal representatives : ” Ralston v. Wain, 44 Pa. 279; “ To such person or persons as should be her right heirs, their heirs, executors, administrators and assigns forever, in such proportions as they would be entitled to in case she had died intestate seized and possessed of the property in her own right:” Nice’s Appeal, 50 Pa. 143; “To such person or persons as would be entitled to the same if the said PI. had died intestate seized of the said premises in fee simple, and in such manner and for such quantity of estate as such person or persons would in such case be entitled to by law:” Dodson v. Ball, 60 Pa. 492; “To such person or persons as would be entitled to the same in case my said daughters had survived their respective husbands and departed this life intestate seized thereof in fee: ” Yarnall’s Appeal, 70 Pa. 335; “ At their death shall descend to their children, if any, if no children, then to descend to the brothers and sisters and their children: ” Potts v. Kline, 174 Pa. 513.

A fee tail has been created by the following limitations upon the death of the life tenant: “ To my daughter R., and she shall have it as her own during her life, and then it is to come to the heirs of her body for their own use: ” Bender v. Fleurie, 2 Grant, 347; “ To W. my son, and to J. my son, and to their children after them: ” Blair v. Miller, 30 W. N. C. 486; “ When the children or legal heirs of the said W. come to the age of twenty-one years or more, then the one half of the said farm to belong to the children or legal heirs of the said W. forever: ” Sheeley v. Neidhammer, 182 Pa. 163; “To the heirs male of the body of my son E. lawfully begotten, and the heirs and assigns of such heirs or heir male forever: ” Carter v. McMichael, 10 S. & R. 429; “If he shall have lawful issue, then to them, their heirs and assigns forever: ” Paxson v. Lefferts, 3 R. 59; “To the heirs of his body lawfully begotten and to their heirs forever: ” George v. Morgan, 16 Pa. 95 ; “ To descend to his legitimate offspring forever: ” Allen v. Markle, 36 Pa. 117 ; “To descend and go to the child, and if children, share and share alike: ” Haldeman v. Haldeman, 40 Pa. 29; “ To his legal heirs, if he have any, (meaning heirs of the body), at his death: ” Bassett v. Hawk, 118 Pa. 94: “ At his death the use and occupancy to be continued to his issue, if he- shall so have: ” Armstrong v. Michener, 160 Pa. 21; “ To her lawful issue, to have and to hold the same in common to them, their heirs and assigns forever:” Grimes v. Shirk, 169 Pa. 74.

Except in the first three of the cases last cited, the limitation was followed by a devise over on failure of issue. This, of itself, is sufficient to create a fee tail in the first taker. “ An estate tail would be implied from the devise over, even if there were no gift of a remainder directly to the issue: ” Kay v. Scates, 37 Pa. 31, Strong, J. The devise over on default of issue implies that if there be issue they shall take. Whether the primary devise be in fee simple or for life, such a devise over converts it into a fee tail; cutting it down if a fee simple: Amelong v. Dorneyer, 16 S. & R. 323; Hackney v. Tracy, 137 Pa. 53; and enlarging it if a life estate. Among the limitations over on default or failure'of issue, with no intervening remainder given directly to the issue, by which a life estate has been enlarged to a fee tail, are the following: “ If she should die without lawful issue of her body, to be equally divided among my other three children: ” Mast and Monis’ Appeal, 2 W. N. C. 404: “ In case my granddaughter shall not leave issue at her death, I give and devise my said plantation to the children of my sister R.: ” Price v. Taylor, 28 Pa. 95; “ Upon the decease of either or any of my said sisters or nieces, without issue, (if with issue the issue inherit their shares) I grant and convey their portion of my estate for the use of my other sisters and children in fee: ” Potts’ Appeal, 30 Pa. 168; “ If he should die leaving lawful issue, to him, his heirs and assigns forever, but if he should die leaving no such lawful issue,” then over: Wynn v. Story, 38 Pa. 166. And “Where the remainder over, after dying without heirs, is limited to one who is or may be heir to the first devisee, this has always been determined to be an estate tail: ” Amelong v. Dorneyer, 16 S. & R. 323, Duncan, J. This relation between the first devisee and those taking by the devise over is a feature of nearly every case in which such a devise occurs.

Upon a devise over on failure of issue, or by expressions of like import, an indefinite failure is understood; those in remainder taking nothing until the entire line of issue is extinct. This is settled by numerous authorities referred to in part by Mr. Justice Green in Hackney v. Tracy, 137 Pa. 53. And upon a devise over on the death of the first taker “ without heirs,” or “ without legal heirs ” — terms of equivalent meaning — to collateral relatives who would take as his heirs, death without heirs of the body is to be understood, since these are the only heirs to whom this description can apply. “ It is very plain that the clause ‘ leave no heirs ’ must be read ‘ leave no issue; ’ for the devisees being all related to each other, neither of them could die without leaving an heir if he left a survivor: ” Wall v. Maguire, 24 Pa. 248, Lowrie, J. “As the devisee’s brothers and sisters would have been his heirs on leaving no issue, the testator must have meant lineal descendants and not collateral, when he used the words ‘lawful heirs : ’ ” Moody v. Snell, 81 Pa. 359, Per Curiam. To the same effect are Braden v. Cannon, 24 Pa. 168; Covert v. Robinson, 46 Pa. 274; Bassett v. Hawk, 118 Pa. 94; Cochran v. Cochran, 127 Pa. 486. And a provision that “ if any of my sons and daughters dieswithout lawful heirs, their portion reverts back to my heirs in common,” is to receive the same construction. “ To give the clause any effect whatever, the words ‘lawful heirs ’ must mean ‘ lawful issue: ’ ” Biddle’s Appeal, 69 Pa. 190, Agnew, J.

When the words “ heirs ” or “ heirs of the body ” are used, the presumption is that they are employed in their legal sense, and the intent to use them otherwise must unequivocally appear: Guthrie’s Appeal, 37 Pa. 9. When the word “ children ” is used to denote the entire line of lineal descent, it is to be understood as meaning “ heirs of the body.” It is never applied otherwise where “ evidently intended to define an entire line of descent: ” Haldeman v. Haldeman, 40 Pa. 29; Yarnall’s Appeal, 70 Pa. 335. “ Where a testator intends the estate to go to the whole body of persons in legal succession constituting in law the entire line of descent lineal, he evidently means the same thing as if he had said ‘ issue ’ or ‘ heirs of the body; ’ or if he intends it to go to the whole line of descent, lineal and collateral, he means the same thing as if he had used the term ‘ heirs,’ which as a word of art describes the same line of descent: ” Yarnall’s Appeal, supra, Agnew, J. “Whenever the words of the limitation can be fairly and justly interpreted to mean ‘ heirs,’ or ‘ heirs of .the body,’ an estate of inheritance will be presumed to have been intended by the testator. Whenever he means to limit an estate to the heirs of the life tenant, no matter how his intent is expressed, an estate of inheritance will vest in the tenant for life: ” Dodson v. Ball, 60 Pa. 492, Agnew, J. “ Any form of words sufficient to show that the remainder is to go to those whom the law points out as the general or lineal heirs of the first taker will be sufficient, unless it be perfectly clear that such heirs are selected on their own account, and not simply as heirs of the first taker: ” Price v. Taylor, 28 Pa. 95, Lowrie, J. An estate tail is created by the limitation “to descend to the lawful heirs from generation to generation,” since “this could no otherwise be effected than by estates tail given to each of the devisees: ” Gause v. Wiley, 4 S. & R. 509, Tilghmajst, C. J.

While a fee tail can no longer subsist, it may still be created, to be by force of the statute transformed into a fee simple. Whether a fee tail was created by the devise in the present case, depends on the effect of the primary limitation, and of the devise over. This is to be determined by the principles already referred to as governing the construction of the language employed; since nothing in the context, or the situation of the parties, requires a departure from the settled rules for its interpretation.

It is evident that the testator intended equality among the sons; equal shares in quantity and quality and equal estates. The estate devised to each was limited, first, to his own life; next, to his children, “ and so on from one generation to another;” and finally, on his death “without heirs,” to the survivors. The shares given directly, and those passing by the devise over, are alike thus limited to the children. The language of this limitation embraces the entire line of descent or lineal succession to the remotest generation. The intention that the estate should descend from the sons to their lineal heirs, as- long as the line should endure, is clearly apparent. “ This being the intént of the testator, it is immaterial whether he describes the line of descent by a word of art, or by a periphrasis, meaning the same thing : ” Yarnall’s Appeal, supra, Agnew, J. This intention can be carried out only through estates tail in the sons. Nothing but the whole line of issue, the heirs of the body, answers the testator’s description of those who are to take by this limitation. Nothing in the situation of the parties demands a different interpretation of the language. The limitation is not to children living at any particular time. At the death of the testator, three of the sons were unmarried and without issue. The fourth had one child, but whether this was born previous to the date of the will does not appear. The words of limitation, while inapplicable and inadequate as decriptio persona, sufficiently indicate the character in which the testator intended those in the line of succession to take, since they are strictly commensurate with the entire line of lineal heirship. In legal effect, therefore, the limitation is to the heirs of the body, creating an estate tail. This is quite as manifest, to say the least, as in the limitations, “ to their children after them,” in Blair v. Miller; “To his legitimate offspring forever,” in Allen v. Markle; “ To the child, and if children, share and share alike,” in Haldeman v. Haldeman; each of which was held to create a fee tail.

Next as to the devise over to the surviving brothers. Here, as in Wall v. Maguire, Moody v. Snell, and other cases cited on this point, since none of the sons could die without heirs leaving a brother surviving, the devise over on dying “without heirs ” is in legal effect a dying without issue, or heirs of the body, and thus creates a fee tail. The failure in contemplation is unquestionably an indefinite failure; not until the line of a son, “from one generation to another,” is extinct, do the survivors take. In this aspect of the question it is immaterial how the limitation to the children of the testator’s sons is to be construed. The devise over, whether with or without an intermediate estate given to the issue of the first taker, enlarges his life estate to a fee tail. Further, the devise over is to those who would take as heirs of the first devisee, and this has always been held to create an estate tail: Amelong v. Dorneyer, supra.

Thus, features rvhich are severally sufficient to enlarge a life estate to a fee tail are here concurrent; and upon the principles settled by all the authorities, the estate devised to David Phillips must be pronounced a fee tail, which the statute converted into a fee simple. His devise to Margaret Hibbert passed a fee simple, and the court below should have directed a verdict for the defendant.

Judgment reversed.