Eichelberger v. Barnitz

[450] The opinion of the court was delivered by Serjeant, J. Questions as to the effect of words in wills similar to those used in the present one, in creating an estate tail in the first taker, or an estate in fee with an executory devise over, have been so frequent, that their construction must be considered as settled by authorities, which we are not at liberty to subvert, even if we could flatter ourselves with the idea, that we could delineate a more perfect system on this refined subject, than that which the existing law ■establishes. 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 issu.e, 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. The, case of Clark v. Baker, 3 Serg. & Rawle 470, is an authority ' in point, in the present case. There one devised all his plantation to his daughter and grand-daughter, to hold to them and the survivor of them, and to their lawful issue for ever, share and share alike, in two equal shares, and if either of-them should die zvithout leaving lawful issue of their bodies; then to the survivor and her lawful issue forever: and further empowered D. W. and his daughter to sell all his lands, if they should judge it more advantageous for his daughter and grand-daughter, to have the interest arising 'therefrom, than to rent it, and gave the interest in a similar manner, and it was -held, that the daughter and grand-daughter, took estates tail in possession, with vested cross-remainders in tail to each, and a vested remainder in fee to D. W. In Doe v. Griffith, 4 Maule & Sel. 61, land was devised to R. D. the testator’s eldest son and his heirs, but if it should happen that R.D. should die and leave no issue, then to the testator’s son W. D. and his heirs, and if he should die without issue, then to the testator’s son E. D. It was held, that R. D. took an estate tail. See Fearne Cont. Rem. & Ex. Dev. 474, note; 2 Row. Dev. 564. The exceptions to the application‘of the general rules are, either in cases of personal estate, in which the construction is more liberal in favour of executory devises; or when the time at which the»devise over is to take effect, is expressly or impliedly limited to a particular period, within a life or lives in being, and twenty-one years after; as where the contingency is, if the first taker die without issue before arriving at twenty-one, or if he die unmarried and without issue, or if he die without leaving issue behind him, or living at the time of his decease, or if the devise over be of a life-estate, which [451] implies necessarily, that such devisee over may outlive the first estate ; in all these cases, the testator has been considered as meaning a failure of issue within a fixed period, and not an indefinite failure of issue. But without some such circumstance to distinguish the case, it must be considered as falling within the particular cases of the same kind already decided, as well as the general course of reasoning adopted by the judges in analogous cases. It has been urged, that the present case falls within the exceptions, because the testator prefaces the devise by the words, “ because my son Henry is unmarried,” which manifests an intention to make the devise over contingent, on his dying without leaving issue and unmarried. But we do not think this sufficient to change the settled construction which such a devise has received. For though it is true he assigns this reason why he makes the devise, yet he limits it at the same time merely to his dying without leaving issue, looking to the possibility of his marrying and having issue capable of inheriting from him an estate tail indefinitely, which of course must, in order to transmit it by descent, vest in him as tenant in tail in the first instance. On the will, therefore, without considering what might be the effect of the conveyance to him by the testator, we are of opinion, that Henry Carle took an estate tail which with all remainders over he barred by his deed. Judgment affirmed.