Coles v. Ayres

Opinion by Mr. Justice Mitchell, The tenth item of the will passed a fee simple to testator’s children, under the act of 1833, unless it appear that he intended to devise a less estate. The only question is whether such intention appears in item eleven. The language of the latter item would be sufficient to sustain an executory devise, if such was the testator’s intent; but such an intent must appear from the words, it will not be presumed. So far from appearing however, such intent is negatived by the language used. The expression “ if both my children should die intestate ” is a clear recognition of a fee simple to which the right of testamentary disposition is incident. The only other implication that could arise from it would be a power of testamentary appointment. But this implication is no [200] stronger than the other, and the fee simple which the statute creates can' only be set aside by an actual intent which appears in the will superior to any other construction. We have next the words, “ and without lawful heirs,” which clearly mean without issue, for the devise over is to the testator’s nephews and nieces, who would be “lawful heirs ” of his children, had he meant those words in their proper sense. But “ die without issue ” as the contingency on which a new devisee is to take after a previous devise in fee, means die in the lifetime of the testator, and if the devisee survive, the estate he takes is absobute: Mickley’s Appeal, 92 Pa. 514; Stevenson v. Fox, 125 Pa. 568; King v. Frick, 135 Pa. 575. And that this was the actual intent in the present case appears conclusively from the words with which the devise over are introduced, “if etc. ... I direct that all my estate given by this will to my children, and intended for them if they should, live, shall,” etc. If they should live till when ? Certainly till the will becomes operative by the death of the testator. No other period can reasonably be assigned, as that which the testator had in contemplation. This construction is in entire harmony with such of our cases as are closely analogous, especially Karker’s Appeal, 60 Pa. 141, and Edwards v. Barnard, 84 Pa. 184. These two cases would govern the present absolutely but for the fact that in both of them the will gave a fee expressly, and the decision therefore was complicated partly with the rule that repugnant conditions subsequent cannot be attached to a fee. But on the main questions raised, there is no difference between a fee expressly given and a fee presumed by the statute. The latter as well as the former can only be defeated by a subsequent provision which shows clearly that the testator intended not to give a fee, though he used language which, standing alone, would have been effective for that purpose. No such intent can be fairly gathered from the present will, and therefore the fee given by item ten is unaffected by the subsequent clause. Judgment affirmed.