Curtis v. Longstreth

The opinion of the court was delivered, by Strong, J. The will evidently gave to Malcolm McNeran an estate tail in the dwelling-house occupied by the testator, and called on the argument the “Front street property.” The gift was to the devisee named during his natural life, with remainder at his death, to his heirs as tenants in common, and if he should die without issue, over to the surviving heirs of the testator. Without the last limitation it would be an estate in fee simple, but that shows that the testator meant by the word “heirs,” “heirs of the body,” when he employed it in the gift of the first remainder. Then what is there to show that he used it as a word of purchase rather than a word of limitation ? Nothing but the direction that the heirs of the tenant for life should take as tenants in common. That, however, has always been held insufficient to overcome the presumption that the testator does not intend the remainder-men to take as the root of a new succession, where he describes them as “heirs” or “heirs of the body,” the technical words of limitations. It is at best equivocal, or, if regarded as repugnant to the gift to heirs as such, why should it prevail over the rational presumption that when a testator uses technical words of limitation, he means to use them in a technical sense, especially when that sense corresponds with common understanding ? Standing alone, as in this case, it never does. We are of opinion, therefore, that the devisee took under the will of the testator an estate tail in the Front street property, which became a fee simple in the purchaser at sheriff’s sale, under the provisions of the Act of the 15th of April 1859, P. L. 670. The Mead alley property stands in a different position. The will gave that to Malcolm McNeran for and during his natural life, with the remainder after his decease to his children, share and share alike: but should he die without issue the direction was that the property should be equally divided among the testator’s surviving heirs. It is plain that the testator intended that the remainder-men should take as purchasers, and not as heirs, unless a contrary intent is deducible from the last clause of the words of gift. He described them by an apt word of purchase, i. e. children, and therefore the first taker had only an estate for life. And the limitation over, on the death of the first taker without issue, can make no difference. Had there been no gift of a remainder to children, the limitation over on the death without issue, would have given him an estate tail by implication, but there having been an intermediate gift of a remainder to children of the devisee, of the particular estate, the gift over on [303] the death without issue must be construed as a gift on death without such issue as those previously mentioned, to wit, children. That this is the rule, may be seen in the cases collected in large numbers in 2 Jarman on Wills, ch. 40. See also Smith on Executory Interests 576, et seq. See also Mr. Hayes’s second, third, fourth, and fifth rules for ascertaining the effect of a gift over, in default of issue, upon a preceding limitation to one for life, or to one for life with remainder to children, &c.: Hayes on Dispositions of Real Estate 28. It was said on the argument that the devisee for life was unmarried, and without children when the will was made and when the testator die'd. This can make no difference; the gift, was not to the devisee named and his children immediately, but to the children by way of remainder. The difference between such devises was shown in Cote v. Miltenberger, 5 Wright 243. We are of opinion that Malcolm McNeran, the devisee, took only an estate for life in the Mead alley property. The judgment given in the case stated therefore requires correction. The judgment entered at Nisi Prius is reversed, and a judgment is now ordered for the plaintiffs for the , sum of §600.