Powell v. Board of Domestic Missions

The opinion of the court was delivered by Strong, J. The question in this case is, what estate Alexander Carson took under the will of Oliver Carson ? The words — 53 — of the devise out of which the controversy arises are as follows: “ I give unto Alexander Carson, whom I brought up, and whom I acknowledge as my son, the use and profits of my messuage and lands, with the appurtenances, in the borough of Norris-town, for the term of his natural life, and after his decease, if he shall die leaving lawful issue, I give and devise the said messuage and land, with the appurtenances, to the said lawful issue, if one, to him or her, his or her heirs and assigns for ever, but if more than one, to be equally divided amongst them, their heirs and assigns for ever. But if my son Alexander shall die without lawful issue, then I direct said messuage, land, and appurtenances to be sold by my executors, and the proceeds of said sales to be considered as part of my estate, and given as hereinafter directed.” In a subsequent part of the will the testator appointed executors, and directed the residue of his estate to be divided among eight persons, then living, whom he named.' Undoubtedly in a will the word “ issue” is regarded as primarily a word of limitation, and as synonymous with the technical words “heirs of the body.” Hence it is presumed that when a testator devises an estate for life, with a remainder to the issue of the devisee of that estate, he intends the remainder-men to take as heirs of the body by descent from their ancestor, rather than as purchasers, themselves the root of a new succession. This intent, however, is but a presumption. Even the strictly technical words “heirs,” or “heirs of the body,” may be shown by the context of the will to have been used as merely descriptive of persons, in which case they are regarded as words of purchase and not words of limitation. The intent of the testator to use them in such an abnormal sense, must, indeed, unequivocally appear, but when made thus to appear, it prevails over the legal presumption to the contrary arising from the use of words, which, unexplained, are words of limitation. In regard to this there is no doubt. And it is equally certain that by the same means the word “ issue” may be shown to have been used as a word of purchase, meaning children, grandchildren, &e. Being not strictly a technical word, never a word of limitation, except when used in a will, it requires even less to overcome the presumption that a limitation was intended by its use than is demanded to rebut the presumption arising from the use of the words “heirs of the body.” In Doe d. Cooper v. Collis, 4 T. R. 294, Lord Kenyon said, “In a will, ‘issue’ is either a word of purchase or of limitation, as will best answer the intention of the devisor, though in the case of a deed it is universally a word of purchase. In Backhouse v. Wells, 1 Eq. Ab. 184, p. 27,. cited in Fearne on Remainders *105, a devise to one for life only, and after his death to the issue male of his body, and to the heirs male of the bodies of such issue, was held to give but — 54 — an estate for life in the first taker. Here the presumption arising from the use of the word issue was rebutted by the restrictive word only attached to the gift of the life estate, and by the fact that words of limitation were added to the devise in the remainder to the issue male. These circumstances would have been entirely insufficient had the devise to the remainder-men been to them by the words ‘ heirs of the body.’ ” Upon this case Lord Chancellor Parker remarked that, if the words heirs male had been used instead of issue male, the operation of the law would have been too strong for the intention of the testator. Mr. Smith, also, in his Treatise on Executory Interests, p. 528, asserts that “ there is a less degree of presumption against construing the word issue a word of purchase, than against construing the words heirs of the body to be words of purchase, and a still less degree of presumption against that construction of the word issue, than against the same construction of the word ‘ heirs’ generally; so that, primd facie, the word issue is more likely to be a word of purchase than the words heirs of the body, and still more likely than the word ‘heirs’ generally.” So in Lessee of Findlay v. Riddle, 3 Binn. 160, Yeates, J., after remarking that heirs and heirs of the body have been restrained as words of purchase when the same were evidently used in a will in that sense, added, “they always give way with greater difficulty than the word issue.” This case, however, does not call for reliance upon any distinction between the degrees of the presumptions which arise out of the use of the words issue or heirs of the body, for there is enough in the will of Oliver Carson to show unequivocally his intent to devise to the remainder-men as purchasers, even had he described them b,y the words “heirs of the body” of Alexander Carson. There are two directions in the gift of the remainder, each of which indicates, and which combined are decisive, that the word issue was used by the testator as a word of purchase, meaning children, sons and daughters, or descendants living at the death of the devisee, for life. They are first, that if more than one, the property should be equally divided between them, or if one, then to that one, and second, the added words of limitation in fee simple to the gift to the issue. If it was intended they should take as heirs of the body of Alexander Carson by descent from him, instead of talcing directly from the testator, the added words of limitation “to their heirs and assigns for ever” can have no effect. And they are not merely superfluous. They are repugnant to any such intent. The issue of Alexander Carson cannot take as heirs of the body, and hold to them- and their heirs generally. If they take by descent at all, they must take as tenants in tail, and so hold. Still more clear it is, if possible, that the direction that the issue shall take distributively, if one, — 55 — to that one, if more than one, in equal division, is utterly inconsistent with their taking as heirs in, tail of the devisee of the particular estate. These two expressed purposes of the testator show unmistakably his paramount intention to devise to them as the stock of a new succession, and not as heirs. Neither of them. alone might be sufficient to overcome the presumption that he intended to use the word issue, in its primary sense, as a word of limitation, but together they are. Such is the doctrine of the authorities. Mr. Smith, in describing the modes in which “ heirs of the body” have been reduced from words of limitation to words of purchase, mentions as one (p. 488), prescribing for the heirs, general or special, a distributive mode of taking and also superadded words of limitation. He adds, “ the mere addition of words of distributive modification would be equivocal; for the grantor or testator might have erroneously supposed that the' heirs might take in that character and yet in a partitive mode; but -the engrafting of superadded words of limitation, besides the addition of the words of distributive modification, shows clearly that he meant by the first-named heirs the children of the ancestor, who are sometimes so termed as having the capacity of becoming heirs of the ancestor, either in succession, if males,- or contemporaneously, if females. For this position he refers to several decisions, none of which, to my knowledge, have ever been questioned. They are Doe v. Lanning, 2 Burrows 1100; Crump v. Norwood, 7 Taunt. 362; Haller v. Ironmonger, 3 East 383, and Right v. Creber, 5 Barn, & Cres. 866. All of these sustain the doctrine. In the last-mentioned case there was a devise of land to trustees in trust to permit the testator’s daughter to receive the rents to her own use for her life, and from and after her death he devised the same “ unto the heirs of the body of his daughter, share and share alike, their heirs and assigns for ever..” It was ruled that the words “heirs of the body,” in the devise, meant children, and solely because of these added directions. So in ch. 13, rule 2, page 505, the same elementary writer says, “ If there are any expressions clearly showing that by issue the testator meant children, or particular individuals among his descendants, or any expressions indicative of an intent absolutely inconsistent with, or not included in an estate tail in the ancestor, then the word issue will be construed a word of purchase, if the issue may take as purchasers consistently with the rule against perpetuities; and the ancestor will take an estate for life with a contingent or vested remainder, as the case may be.” We have received and asserted the same rule of construction in this state : Findlay v. Riddle, 3 Binn. 139; Guthrie’s Appeal, 1 Wright 9, and more recent decisions. Cases may be found, it is true, in which it has been held that merely directing a division among heirs of the body is not alone sufficient to con — 56 — vert those words into words of purchase. Blanford v. Dymock, 4 T. R. 82, relied upon by the defendant in error, is one of them; Jesson v. Wright, 2 Bligh 1, is another. In neither of them were words of limitation superadded to the devise of the remainder to “heirs of the body,” or “issue.” There was but a single indication of an intent to use those words in any other than their primitive sense. And in the former case, Buller, J., while assenting to the construction given to the will, remarked that he thought the court, in giving it, went further than ever had been done in former cases, since, in order thus to construe the will, the words “and amongst” must be rejected. Numerous cases may also be found in which it has been held that added words of limitation are not enough to rebut the presumption that a limitation was intended by the use of the words “ heirs of the body,” but I am not aware of any case of recognised authority chat denies such an effect to such an added limitation and words of 'partitive distribution, when both are found in the same will. The learned counsel for the defendant in error has referred to none, though he has made no small examination. He finds himself constrained to admit that one of the clauses in this will must be struck out, in order to maintain the construction given to it in the court below, and his argument has been directed to show that we are warranted in striking it out, or giving no effect to it. His argument is built upon the words which follow the devise to the issue of the first taker, and the directions how they shall take. Were it not for the words “if he shall die without issue,” introducing the direction to the executors to sell and distribute among others, he concedes that it would perhaps hardly be open to argument that the estate of the first taker was greater than an estate for life. But he insists that those words, by implication, enlarge that interest, which without them would be a life estate, into an estate tail. That an estate tail in the devisee of a life interest is ordinarily implied from a gift over in default of his issue, or in the event of his leaving no issue, or dying without issue or for want of issue, must be admitted, if there be no express devise to the heirs of the body or issue. But where a gift over on such a contingency operates to enlarge an estate in the first taker, given expressly for life, into an estate tail, it is by presuming the gift of a remainder to his issue or the heirs of his .body. The will of the testator being plain that the devisees over shall not take, while there are in being heirs of the body or issue of the first taker, it is inferred his intent was that the estate remaining after the determination of the particular estate should be enjoyed by such heir or issue. Otherwise it would be in abeyance until an indefinite failure of issue might occur. Hence, the will is construed to be an express devise for life, with remainder to the — 57 — issue of the first taker, indefinitely, which by the operation of the rule in Shelley’s Case becomes an estate tail in him. The implication is not of an estate tail directly, but of a gift of a remainder to the issue from which, together with the life estate in the ancestor, results the estate tail. When, however, there is an express gift of the intermediate interest, between the determination of the ancestor’s particular estate, and the vesting in the devisee over in default of issue, there is no room for an implication of a gift of that intermediate interest. The express devise of it repels any implication of a devise. Here lies the difficulty in the case of the defendants in error. The remainder after Alexander Carson’s life estate was expressly devised to his issue, as purchasers in fee. There was nothing left, therefore, out of which an estate tail could be created. As we have seen, there was the same thing as a gift to his children or descendants living at his death, and to their heirs generally. The words in the gift over, “ die without lawful issue,” refer to the issue as defined by the testator, namely, children, and therefore the gift over is either an alternative limitation or an executory devise. It is well settled that where property is devised to a person for life, and after his death to his children equally and their heirs, with a limitation over in case he should die without issue, the words referring to a failure of issue mean a failure of children. And it is equally clear that where the limitation over is a failure of issue generally, if in the precedent devise the testator has used issue as a word of purchase, meaning children, it is the same as if the precedent devise of the remainder had been to children. In neither case will the devisee of the particular estate, which supports the remainder to issue or children, take more than an estate for life. See Smith’s Executory Int., ch. 13, 17. It is not denied that such a limitation over may assist in a doubtful case, in determining in what sense the testator used the words heirs of the body, or issue, in the devise of the preceding remainder; but when he has clearly shown by a gift to them and their heirs distributively, that he meant them to take as purchasers, a gift over or failure of issue will not lift the words of purchase into words of limitation. This subject is clearly presented in Hawkins on the Construction of Wills (an elementary treatise of great value, published in London in 1863, but not yet reprinted in this country). On page 192, he asserts the rule to be, that “When 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 in. fee.”' In .'support of this he refers to Slater v. Dangerfield, 16 M. & W. 273, Greenwood v. Rothwell, 5 M. & G. 628, and 6 Beav. 492. He then adds: “ The rule that words of limitation and distribution (together) convert issue into a word of purchase applies, although there be — 58 — a gift over in the event of the first taker dying without issue, or without leaving issue; and the gift over takes effect as an alternative contingent remainder, in the event of there being no issue to take the fee as purchasers : Golder v. Morland, Kay 16. In Golder v. Crop, 5 Jurist 252, Romilly, M. R., said: “I have always considered that where an estate is given to the ancestor, and there is a direction that it afterwards go to the issue of his body, and the mode in which the issues are to take is specified, with words added giving them the absolute interest, then the ancestor takes an estate for life, and not an estate tail, although there is a devise over in the event of the ancestor not leaving any issue.” Hawkins says very much more to the same effect, and cites many more authorities to which we need not refer in detail. These principles, based upon the rule that the whole intent of the testator is to be effectuated if possible, have been fully adopted in this state. They were asserted in Findlay v. Riddle, 3 Binn. 139, already referred to. That case is almost identical with the present, except that in the devise of the remainder, after the life estate, the testator employed the strictly technical word “heirs,” The testator gave to his son J. Findlay a plantation, “during his natural life,” and after his decease, if he should die leaving lawful issue, to his heirs as tenants in common, and their respective heirs and assigns for ever, but in case he should die without lawful issue, then over in fee. It was held, after a most elaborate argument, that John Findlay took only an estate for life. In that case, as in this, the intent of the testator to use a word of limitation, in an abnormal sense, as a word of purchase, was shown by words of distributive modification and by added words of limitation. There was nothing else, and there, as here, there was a devise over on failure of issue. There, as here, the argument was pressed that John Findlay, the first taker, had an estate tail by virtue of the ultimate devise over, if he died without leaving lawful issue; but the argument was repudiated, because the gift of the intermediate estate was to the heirs of John as tenants in common, and their respective heirs and assigns for ever. Upon this Judge Yeates remarked, “there is nothing incompatible or inconsistent with the general intent that John should hold this plantation during his life, and his children, if he had any, hold the same after his death in fee simple as tenants in common, but if he had none, that it should go over.” He added, “this materially contradistinguishes the will under consideration from the cases cited by the defendant’s counsel, in all of which, in order to give effect to the chief intention of the testator, it became indispensably necessary to hold that the first takers were vested with an estate in fee tail. It seems to me fully to answer them.” Findlay v. Riddle rules the present case. If the cases are distinguishable at all, there was — 59 — more reason for holding that John Findlay took an estate tail, than we have for deciding that such an estate vested in Alexander Carson. It was said on the argument that Findlay v. Riddle was overruled by Heilman v. Bouslaugh, 1 Harris 344, and by George v. Morgan, 4 Id. 95. But this is a mistake. Heilman v. Bouslaugh was the construction of a deed, not a will, and the conveyance was to a married woman “ during her natural life, and after her decease to the heirs of her body, and to them and their heirs and assigns for ever.” There were added words of limitation, but none of distributive enjoyment. Ch. J. Gibson admitted that in a will, words of limitation may be shown to have been used as words of purchase, though he denied that this can be shown by added words of inheritance alone (which is undoubtedly the law), and he denied that technical words of limitation in a deed can be controlled by anything whatever. His ruling was perfectly consistent in all respects with Findlay v. Riddle. George v. Morgan was the construction of a will, in which all that was ruled was that a devise to A., to hold to him for and during his natural life, and after his decease to the heirs of his body lawfully begotten, and to their heirs for ever, and in default of such issue, then over, gave an estate tail to A. There was nothing to show that the words heirs of the body were used as words of purchase, except the added words of inheritance. There was no direction that they should take as tenants in common, or share and share alike. The case was rightly decided. It does not touch Findlay v. Riddle. A dictum of Judge Bell would seem to indicate that in his opinion the reasoning of Judge Gibson, in Heilman v. Bouslaugh, repudiated some of Judge Yeates’s reasoning, but this is a clear mistake. There was no reference in his opinion to Findlay v. Riddle, and the case before Judge Gibson called for none. It is argued, moreover, that the devise was, on.failure of John Findlay’s issue, to another son of the testator in full life. No reliance was placed upon that circumstance in the opinion of the court. And besides, in that respect the case was like the present. Here, the gift over, if Alexander Carson die without lawful issue, is for distribution among persons in full life when the will was made, persons whom the testator named. We cannot doubt, therefore, that upon authority as well as principle, Alexander Carson must be held to have taken only an estate for life, under the will of his testator. Consequently, his deed, though intended to bar an entail, passed only a life estate to his grantee. According to the terms of the case stated, then, the judgment should have in favour of the defendant in the court below* The judgment is reversed, and judgment is given for the defendant below in the case stated.