Vowinckel v. Patterson

Mr. Justice Trunkey delivered the opinion of the Court, Isaac Thompson devised the rents and profits of the land described in the case stated, to his wife during her life, and at her death to her heirs. The learned judge of the Common Pleas'rightly decided that under the operation of the rule in Shelley’s case, Nancy Thompson took an estate in fee simple. The rule, operates to give the ancestor an estate for life in the first instance, and by force of the devise to his heirs the inheritance also, by conferring the inheritance on him as the stock from which alone they can inherit: Hileman v. Bouslaugh, 13 Pa. St., 344. Other clauses of the will fail to show an intent different fora the meaning of the words of the devise. That the devisees might sell the land and use the proceeds in case of destruction of the building, is not enough to show the testator’s intent to give a mere life estate to her, in absence of such destruction. It is obvious that one object of the testator in making a will was, to vest in her a larger estate than she could take under the intestate laws. He was childless. He made provision that in case a child should be born to them the will should be null and void. The contingency did not happen. Surely such a provision does not evidence that his words which pass a fee simple, were intended only to pass a life estate to his widow. The next inquiry is, had the Orphans’ Court jurisdiction of the proceeding in partition? The plaintiff contends that such jurisdiction was conferred by the Act of April 13th, 1840, P. L., 320, which includes all cases of testacy “ where the course of descent is not altered by the provisions of the last will and testament of the decedent.” It is not alleged that any other statute gives that court jurisdiction. The testatrix had eight brothers and sisters and she devised the land to six. Under the intestate law each of the heirs would be entitled to one eighth of the land; under the will each devisee is entitled to one sixth. A few elementary principles dispose of the question. Purchase includes every other method of coming to an estate; but merely that by inheritance. If the ancestor devises his estate to his heir at law by will, with other limitations, or in any other shape than the course of descent would direct, such heir shall take by purchase. [28] But if a man, seized in fee, devises bis whole estate to his heir at law, so that the heir takes neither a greater nor a less estate by the devise than he would have done without it, he shall be adjudged to take by descent. Even this rule, in England, was long ago abrogated bj a statute which enacts that an heir to whom land is devised by his ancestor, shall take as devisee, and not by descent. The principal difference, in effect between the acquisition of an estate by descent and by purchase, consists in two points : 1. By purchase the estate acquires a new inheritable quality, and is descendible to the owner’s blood in general, and not the blood only of some particular ancestor; and 2. An estate taken by purchase will not make the heir answerable for the acts of the ancestor, as an estate by descent will. And the intestate law of Pennsylvania, which differs from the common law in many particulars, provides “ that no person who is not of the blood of the ancestors or other relations from whom any real estate descended, or by whom it was given or devised to the intestate, shall in any of the cases before mentioned take any estate of inheritance therein.” It is impossible for the six children to take the whole of the estate except by virtue of the devise. Necessarily they hold the estate by purchase, and it acquires a new inheritable quality. The course of descent was broken, altered. Had the devise been made to strangers they would have taken as purchasers. The six heirs hold precisely in the same way, for their title is the will. And the effect on the legal course of descent is the same as if the devise were to strangers. Soon after the enactment of April 13th, 1840, Gibson, G. J., remarked of the provision relative to cases where the descent had not been altered, that it “was, perhaps, superfluous; for wherever exactly the same interest passes by the law that would pass by the will, the devisee takes by descent, and the testator may be said, in language strictly technical, to have died intestate as to the particular land: ” Selfridge’s Appeal, 9 W. & S., 55. In Waln’s Appeal, 4 Pa. St., 502, the same justice spoke of this provision as unnecessary and amounting to nothing. These dicta, contemporaneous with the enactment of the statute, though not authority, show how quickly the great jurist saw that no devise could be made of an estate different from that which would descend to the heir, without altering the course of descent. The judgment must be reversed for the reason that the Orphans’ Court had no jurisdiction of the proceeding for partition. Judgment reversed, and now judgment is entered for the defendant.