Beckley v. Riegert

Opinion by Mb. Justice Fell, The question to be determined is whether the plaintiff took an estate tail, converted to a fee simple by virtue of the Act of April 27, 1855, P. L. 368 or a life estate only, under the following provision of his father’s will: “ T give and devise unto my son Adam my messuage, tenement or tract of land—during the natural life of my son Adam. If my son Adam shall die without lawful issue, then the above devised messuage or tract of land shall fall back to my two sons, Franklin and George, but if my son Adam having lawful issue at the time of his death, then I give and devise the above messuage or tract of land to him and his heirs forever.” In terms the testator gave a life estate to his son Adam Avith remainder to Adam’s issue, if he had issue at the time of his death, and in default thereof to the testator’s sons, Franklin and George. The expressions “ shall die without lawful issue ” and “ having lawful issue at the time of his death ” must be considered together as [93] fixing the time when the other sons would take. That time was when Adam should die without issue at the time of his death. The limitation over was after a definite failure of issue and the particular intent is not defeated by the creation by implication of an estate tail. In a will “ issue ” prima facie means “ heirs of the body ” and will be construed as a word of limitation, and “dying without issue ” standing alone means an indefinite failure of issue. But this construction will always yield to an apparent intent on the face of the will that the words were to have a more restricted meaning and to be applied to descendants of a particular class or at a particular time and not to all the descendants of every generation. Dying without issue “living at the time of his decease ” means a definite failure of issue: 4 Kent’s Com. 274. A limitation over to take effect on the failure of issue within a given time will not give rise to an estate tail by implication in the prior taker. The case is to be classed with the exceptions to the general rule that where there is a limitation over in fee after death without issue, or on failure of issue, or words of similar import, the estate of the first taker is a fee tail: Eichelberger v. Barnitz, 9 Watts, 447; Langley v. Heald, 7 W. & S. 96; and it is governed by Taylor v. Taylor, 63 Pa. 481; Parkhurst v. Harrower, 142 Pa. 432, and Nes v. Ramsay, 155 Pa. 628. The judgment is reversed, and it is directed that judgment be entered for the defendant on the case stated.