Hope v. Rusha

Mr. Justice Sharswoojo delivered the opinion of the court, January 6th 1879. There is but one question presented for consideration on this record. Whether Aaron Whitaker the younger, the ancestor of the plaintiff, took under the will of his father Aaron Whitaker the elder, an estate in fee-simple subject to an executory devise to his brothers if they should survive him in case he should die without issue living at the time of his death, or whether he took an estate tail with a contingent remainder to his surviving brothers. The 130 learned court below being of the opinion that the devise over was to take place on an indefinite failure of issue of Aaron Whitaker the younger held that he took an estate tail, and entered a compulsory nonsuit. That the nature of the devise over is a very important element in determining whether the words “dying without issue” are to be construed in a will as importing a definite or indefinite failure of issue has been settled in many cases: Taylor v. Taylor, 13 P. F. Smith 485, and the authorities there cited. If the devise over be for life it necessarily implies that the devisee may outlive the first estate. It is necessary to determine, therefore, whether the limita-' tion over to the survivors in this case gave a fee or a life estate. To ascertain this it will be quite important to consider whether the first limitation was for life or in fee. Both the first and the ulterior limitations are wanting in technical words to carry a fee — and the will is dated prior to the year 1838, when the Act of Assembly, Pamph. L. 249, changed the rule of construction of wills. Still, as to wills executed prior to that act if there is enough to indicate the intention of the testator to give a fee — no technical words are required. We must construe the language of a will as we would a letter or any other communication by the rules which determine the meaning of the ordinary language of the intercourse of people. The testator was not a lawyer and is presumed to have been inops oonsilii. “I give and bequeath to my son Aaron the plantation whereon I now live' absolutely.” This is immediately followed by a bequest to the same person of certain articles of personal property absolutely. Now it may be that strictly in legal technology absolute is used to distinguish unconditional from conditional or qualified estates; but that the testator did not use it in this sense is manifest from his subjecting the plantation devised to Aaron to the maintenance and support of his son Aquilla during his natural life. In Loveacre v. Blight, Cowp. 352, there was a devise of land “ freely to be enjoyed.” Lord Mansfield remarked: “The testator has charged the estate with the payment of an annuity to his wife, so that he could not mean by the word ‘ freely’ to give it free of encumbrance. The free enjoyment, therefore, must mean, free from all limitations ; that it is the absolute property of the estate.” In the will before us it is clear that the testator meant to give to Aaron the same interest in the plantation as in the personal estate bequeathed to him. In its ordinary sense it means the full and entire property. In that sense we have just seen that Lord Mansfield uses the words. So also Chief Justice Tilghman. He says in Morrison v. Semple, 6 Binn. 97: “No technical words are necessary to pass a fee simple. Any expressions which show an intent to give an absolute estate are sufficient.” Now the ulterior limitation over was of the portion of the deceased son, and that portion as vre have seen was a fee. “Portion” according to the lexicographers 131 has for one of the meanings “the part of an inheritance given to a child:” Johnson, Webster, Wharton. Upon failure of issue of Aaron at any time, the heirs of the survivors would be entitled to possession. There is nothing, therefore, in the will which indicates an intention to confine the dying without issue to the period of the death of Aaron. He took an estate tail with a contingent remainder in fee to his brothers if they should survive him. The nonsuit entered was therefore right. Judgment affirmed.