Hackney v. Tracy

Opinion, Mr. Justice Green: In one of our most recent cases Reinoehl v. Shirk, 119 Pa. 108, our brother Stebeett, in delivering the opinion of the court, said: “ Standing alone, therefore, the words ‘ die without leaving issue,’ and other expressions of the same import, mean an indefinite failure of issue: Taylor v. Taylor, 63 Pa. 481; Middleswarth v. Blackmore, 74 Pa. 414. At common [58] law, in the absence of words making a different intent apparent, the established interpretation of such expressions in a will is that they import a general indefinite failure of issue, and not a failure at the death of the first takerand such has undoubtedly been the rule in this state since Eichelberger v. Barnitz, 9 W. 447.” In the present case, the whole of the devise of the premises in question is in these words: “ Fifth. And, at the decease, of my wife, Nancy, I give and bequeath the same to my daughter Elizabeth by her paying to my daughter Mary, intermarried with C. V. Tracy, one half the appraised value; but in case my daughter Elizabeth should die without issue, then in that case all her interest that she might or could have in the same to descend to my daughter Mary.” There are no other words in the will that make any other provision, or in any manner relate to this part of the estate. The concluding clause relates to the part devised to William. In the leading ease of Eichelberger v. Barnitz, 9 W. 447, the words of the will were: “ And further, my will is, because my son Henry is not yet married, that if he should die without leaving any lawful issue, that then his full share shall fall or go in equal shares to my other three children, Adam and Anna Mary and Susanna, to one of them as much as to the other.” Sergeant, J., said, in delivering the opinion: “ The principle has now become a settled rule of property, in relation to lands, that if a devise be made to one in fee and if he die without issue, or on failure of issue, or for want of issue, or without leaving issue, then over to another in fee, the estate of the first taker is a fee-tail, which, if he have issue, passes to them ad infinitum by descent as tenants in tail. The estate vests in the first taker fully, and to all intents and purposes as a fee-tail; and any devise over after the failure of such must of course be after an indefinite failure of issue, and bad as an executory devise. It is good as a vested remainder, subject to be barred by a fine or recovery, or deed executed by the tenant in tail, under the act of assembly.” We have repeatedly said that the case of Eichelberger v. Barnitz has never been shaken, and it is certainly the law of this state at the present time. There have undoubtedly been cases in which we have held that, where language somewhat [59] similar was used, “ tbe failure of issue,” upon which the estate of the first taker was to determine, was a definite, and not an indefinite failure of issue; but, in all of these cases, some particular reasons, founded upon language of the will indicating that the testator intended a definite failure of issue, controlled the decision. It was contended for the appellants that such a reason exists in the present case, in the fact that the limitation over is to the sister Mary, by name, and that she, being a liv- ; ing person at the death of the testator, a definite failure of issue must have been intended, and that such a limitation was not too remote to sustain an executory devise. There are cases in which such a fact is held important, in connection with, other considerations, but, standing alone, it is clearly not sufficient, as has been held in many of the cases. Thus, in Eichelberger v. Barnitz the limitation over was to the testator’s “ other three children, Adam and Anna Mary and Susanna.” They were the testator’s own children, and were specifically named as second takers, which might be well urged against the failure of issue being regarded .as indefinite; yet it was so held. In the case of Lapsley v. Lapsley, 9 Pa. 130, the devise was to four sons equally, they paying a certain sum, which was to be divided among the testator’s daughters. The will then provided: “ If any of my sons should die without issue, their part or portion shall be divided between the surviving brothers; also, if a daughter should die without issue, her part or portion shall be divided among her remaining sisters.” Here also, although the limitation over was to those of the testator’s own children who should survive, the case was held to be one of an indefinite failure of issue, and the estate of the first taker was a fee-tail. The case of Vaughan v. Dickes, 20 Pa. 509, is still stronger in the same direction, and is strikingly analogous to the present one. The words of the devise were: “ And, after the decease of my said wife, I give, bequeath, and devise all the aforesaid real estate, above described, to my son Peter Dickes and daughter Catharine Albertson, to them and their heirs forever, share and share alike, to be equally divided between them;.....and it is further my will that, should my son Peter Dickes not marry and have lawful issue, then the said [60] real estate heretofore devised to him shall go to my said daughter, Catharine Dickes, and her heirs forever.” It was held that the words of the will created an estate-tail in Peter, and not a fee with an executory devise in favor of Catharine and her heirs ; that the limitation over was void as an executory devise, it being too remote, as being founded on an indefinite failure of issue. The reasoning of Mr. Justice Woodward, in the opinion, is conclusive against the argument of the appellants in the present case, and, were it necessary, it would be instructive to repeat it. A brief quotation may be cited: “But this form of expression, like its equivalents, ‘if he die before he has any issue,’ or ‘ on a failure of issue,’ or ‘ for want of issue,’ or ‘ without leaving issue,’ have been adjudged again and again, both in England and this country, to import a general and indefinite failure of issue.” And again : “ This may not be according to the actual intent of the testator. Doubtless he did not intend to create an estate-tail, but, when a testator uses words, without explanation or qualification in the context, which, according to a settled rule of law, import an estate-tail, the legal meaning of the will is to prevail over the actual intention of the testator.” It will be noticed, in this case also, that the second taker was a living child of the testator, but, the words of the will coming within the general language which designates an indefinite failure of issue, the ordinary rule was applied. The same doctrine was applied to almost precisely similar language in Matlack v. Roberts, 54 Pa. 148. Agnew, J., says, in the opinion, that “ a contrary doctrine is not to be derived from Langley v. Heald, 7 W. & S. 96; Eby v. Eby, 5 Barr 461; Jessup v. Smuck, 4 Har. 327 ; and Duval’s App., 2 Wr. 112; for in each of these cases special expressions are found, which lead to the conclusion a failure of issue within a definite period was intended, and consequently that no tenancy in tail could be inferred.” The cases referred to are some of those cited by the appellants in the present contention. Lawrence v. Lawrence, 105 Pa. 835, was another instance, where a testator devised land to B. & C. “ and their heirs, as tenants in common, but, if the said C. should die without leaving lawful issue, then and in that case ” his share to go to B., his heirs and assigns, forever; and it was held that C. took a [61] fee-tail. The whole subject'was again gone over in an elaborate opinion by Mr. Justice Trunkey, and all the arguments in favor of a definite failure of issue were reviewed and answered, and the estate of C. was held to be a fee-tail, upon the ground of an indefinite failure of issue. There is no occasion to extend the discussion. We are clearly of opinion that the present case is ruled by all the decisions we have cited, and that there is no exceptional reason for taking it out of their operation. The act of 1855 converts Elizabeth’s estate into a fee-simple. Judgment affirmed.