Kirby's Estate

Opinion by Mr. Justice Potter, In this case the testator gave to his daughter, Mina Belle Kirby, the use, occupation and income of his residuary estate, for and during her natural life, and upon her death, “leaving a child or children, and heir or heirs to her” he gave the entire residue of his estate “to the said child or heir solely, or to the said children or heirs equally, share and share alike.” The question to he [545] determined is whether the daughter took a life estate only, or an estate in fee. The court below held that the expressed intention of the testator brought the case within the rule in Shelley’s case, and that the daughter took an estate in fee tail which, under the Act of April 27, 1855, P. L. 368, was enlarged to a fee simple. In reaching this conclusion the court below cited and applied the decision in Shapley v. Diehl, 203 Pa. 566. In that case, real estate was conveyed by a father to his son “for the term of his natural life and at his death to his children or heirs.” It is to be noted that this description of the remaindermen as “children or heirs” is substantially the same as that used in the present case. It was there held that the case was one calling for the application of the rule in Shelley’s case, and that under it the son took a fee simple estate. In the course of the discussion, Mr. Justice Mitchell said (p. 568): “The question for us is the sense in which the words were used in this instrument, that is what was the intent of the grantor in the phrase ‘children or heirs?’ If he had omitted the word ‘children’ and said ‘heirs’ only, the precise case for the rule would have been presented and the life estate would have been enlarged to a fee, yet the meaning would have been exactly the same and the children would have come in as first in the line of inheritance. If on the other hand he had omitted the word ‘heirs’ and said ‘children’ only, the clear presumption would have been, with nothing to rebut it, of intent to give to them directly as purchasers. But if that was his actual intent, why did he add the words ‘or heirs’ especially in view of the fact that there were no children then in existence bnt only one child, naturally suggesting the very common form of expression, ‘child or children.’ The most evident explanation would seem to be that he had the word ‘children’ in his mind not as descriptio personarum but as representing the next in the line of inheritance, and then the thought occurring to him that there might not be any children he added, [546] ‘or heirs’ to complete the expression of his intent. * * * The phrase in the present case is ‘children or heirs’ and that means heirs of the grantee of the life estate, the word heirs being used as a synonym to enlarge and explain the preceding word which might otherwise fail of its real intendment. The words, therefore, naturally and properly seem to express the intent that the donees in remainder should take not from the donor directly as purchasers, but in succession by inheritance from the grantee of the life estate.” This reasoning seems to fit precisely the present case. The same construction appears in the decision in Vilsack’s Estate, 207 Pa. 611, where a testator gave his estate after the death of his widow, to his sons and daughters for life, and after the death of any one of them, he gave the shares of those so dying, “to their child or children (should they leave any children at their death) * * * but should neither of my sons or daughters leave no heirs, then their share is to be divided between all of my grandchildren, share and share alike.” In construing this language, the court below (Over, J.) in an opinion adopted by this court, said (p. 613) : “It seems then that the testator intended here to limit the estate given to his children to their lineal heirs, or issue, which shows also his intention to use the word ‘children’ in its comprehensive and extended sense, meaning issue or heirs of the body. If this construction be correct the gift then is to his children for life with remainder to the heirs of their bodies or their issue, which vested in the children a fee tail, enlarged by the act of assembly into a fee simple.” Where the word “heirs” is coupled with the word “children” it is fair to presume that the testator intended to have the one word qualify or explain the other, and create an estate tail. See Wilson v. Heilman, 219 Pa. 237, and other cases therein cited, among which is Hastings v. Engle, 217 Pa. 419, where the testatrix used the words “heirs of the body” and afterwards the word “children,” Mr, Justice Mestrezat said (p. 422): “It [547] is true that prima facie ‘children’ is a word of purchase and not of limitation, and, uncontrolled by the context, must be so construed. But where it is clear that it is used in the sense of ‘heirs’ or ‘heirs of the body,’ used in a former part of the will, it must be so construed, and the intent of the testator be permitted to prevail.”' Under the rule recognized and applied in the foregoing cases and in many others which might be cited to the same effect, we must conclude that the words “child or children, and heir or heirs to her” as used by the testator in the present case, were properly construed as meaning “heirs of the body” and that the rule in Shelley’s case was correctly applied. Since the decision in Amelia Smith’s Appeal, 23 Pa. 9, it has been held that words in a will which when applied to real estate would create an estate tail, will when applied to personal property pass the entire interest. The decision in Mengel’s Appeal, 61 Pa. 248, is an illustration, as is Biddle’s Appeal, 69 Pa. 190, where Mr. Justice Agnew said (p. 194) that where the language of the will vests a fee tail, in testator’s realty, “the estate in personalty becomes absolutely vested in the first taker.” As the court below was right in awarding the balance for distribution to the appellee absolutely, the appellant has no interest that entitles him to question the power of the court to appoint a trustee to hold the legacies until the time of payment Is reached. The assignments of error are dismissed, and the decree of the Orphans’ Court is affirmed.