Carroll v. Burns , 108 Pa. 386 ( 1885 )

Mr. Justice Tbtjnkey

delivered the opinion of the Court, March, 23d, 1885.

The only case relied on by the defendant to sustain the judgment of the court below, is Robins v. Quinliven, 79 Pa. St., 333. There the question arose upon a devise by the testator to his daughter “ for and during her natural life, and after her death to her issue and their heirs forever, in the proportions to which they would be entitled under the intestate laws of Pennsylvania, respectively.” The clear opinion of Justice Williams places the judgment on the true ground, namely : “The gift of the remainder is not to the issue alone, bat to the issue and their heirs forever, in the proportions to which they would be entitled, under the intestate laws of Pennsylvania, respectively; that is to say, in equal shares as tenants in common. The limitation to the heirs general of the issue, with the superadded words of distributive modification, clearly shows that by “ issue” the testator meant children, and intended that they should take the remainder .as purchasers and not as heirs by descent.” He then refers to the settled rule, citing some of the authorities, that where there is a devise to one for life, with remainder to his issue as tenants in common, with a limitation to the heirs general of the issue, the issue take as purchasers. There is no sign that had the devise omitted the words of distributive modification, the word issue would have been construed to mean children.

In the defendant’s argument it was suggested that the terms of that devise introduced no real distributive modification, but contained merely “ an accurate periphrasis of the word heirs.” Were this so, the fact would remain that the devise was construed to contain a distributive modification, in words equivalent to a provision that the issue and their heirs should take in equal shares as- tenants in common. That construction was the basis of the decision. If erroneous the mistake was of fact, not of law. But there was no mistake. The common law rule relating to inheritance was materially changed by the statute which defines the persons who shall inherit the lands of intestates, and the proportions which they shall take. The devise of the remainder to the issue in the statutory proportions, was conclusive that the testator used “issue” for children.

In this case, the testatrix devised the real estate to her three daughters, to have and to hold to them during their natural lives, and after their death then to the lawful issue of her said three daughters, and the heirs and assigns of such issue. The rule is unquestioned that prima facie, in a will, the word issue means “heirs of the body,” and will be construed as a wordo'f limitation, unless there be explanatory words showing it was used in a restricted sense. It is urged that the word such, with the form of expression where used, is sufficient to show that by “issue” the testatrix meant children. There is no other explanatory word. What difference is there between a devise to A for life, and then to the issue of A, and the heirs and assigns of such issue, and a devise to A for life, and then to A’s issue and their heirs and assigns ? Precisely the same persons are meant by issue in each phrase, and the word has the same power in one as the other. Each form expresses the same thing. If the word children were put instead of issue, each phrase would then express the same meaning, and the children after their ancestor’s death would take in fee as purchasers. The clause in the will where “ such” is used, is the equivalent for “issue and their heirs.” Technical words, or words of a definite meaning, must be construed according to their legal or definite effect, unless from other inconsistent Avords in the will it be clear that, they are used in some other definite sense. Applying the legal -rules of interpretation the intendment of this devise is plain.

A long current of decisions in England and in this Commonwealth has established and continued in force a rule as- follows :

“ When the ancestor by any gift or conveyance takes an estate of freehold, and in the same gift or conveyance an estate is limited either mediately or immediately to his heirs in fee or in tail; that always in such cases the heirs are words of limitation of the estate, and not words of purchase.”

The rule operates to give the ancestor an estate for life in the first instance, and by force of the devise to his heirs, general or special, the inheritance also, by conferring the remainder on him as the stock from which alone they can inherit, and the source from which alone inheritable blood can spring: Hileman v. Bouslaugh, 13 Pa. St., 344. Gibson, C. J., also said, that the rule subverts a particular intention in, perhaps, every instance of its operation; but it is an intention which the law cannot indulge, being an intention to create an inalienable estate tail in the first donee; and that the rule is too intimately connected Avith the doctrine of estates to be separated from it Avithout breaking the ligaments of property.

Aside from the Avordsof distributive modification, the devise in Robins v. Quinliven would have been Avithin the operation of the rule, and, therefore, that case does not determine this in favor of the defendant. Perhaps the testatrix intended to give a life estate to her daughters and the remainder in fee to their children; but she has used words which definitely vest in her daughters an estate tail, and the courts are not at liberty to wrest them so that they may mean anything else. She has used apt words to Greate a particular estate in certain persons, and it ought not to be arbitrarily ruled that she intended some other thing than that expressed.

Judgment reversed, and judgment is now entered for the plaintiff, sum to be liquidated by the prothonotary of the Common Pleas.

Merctir, C. J., and Gordon and Sterrett, JJ., dissent. They think the language of the testatrix so clearly sIioavs she meant children, and not heirs generally, that the rule in Shelley’s case does not apply.