Parkhurst v. Harrower

Per Curiam: The single question here is, whether the plaintiff has, by virtue of the devise to him by his father, Joel Parkhurst, an estate in fee-simple, in the real estate in question, which he can assure to the defendant by deed of special warranty. That portion of the will of Joel Parkhurst, under which this contention arises, is as follows: “ I also give and devise to the said Benjamin H. Parkhurst .....the Timothy Coates farm, to have and to hold the said last three lots of land above described, with the appurtenances, to the said Benjamin H. Parkhurst during the period of his natural life, remainder thereof to his issue, if there be any at the time of his decease, in fee-simple, the issue of any deceased child of the said Benjamin to take the same share and estate as the parent would have been entitled to if living at the death of said Benjamin. But, on failure of issue of said Benjamin, or of his deceased child or children, at the time of his death, then I direct that the said real estate, above devised to said Benjamin for life, shall at the time of his decease go to and vest in the then heirs at law of me, the said testator, in fee-simple, in such shares as the said heirs would be entitled to under the intestate laws of the state of Pennsylvania.” [435] The contention of the appellant is that under this will he took an estate-tail, which was enlarged into a fee by the act of 1855. On the other hand, the appellee contends the appellant took a life-estate only. The court below sustained the latter proposition. It will be seen, from a careful examination of the above clause in his will, that the testator gives to his son Benjamin (a) an estate for life; (b) remainder to his issue, (if there be any at the time of Benjamin’s decease,) and to the issue of any deceased child of the said Benjamin; and (o') remainder to the heirs at law of the said testator, on failure of issue of said Benjamin, or of his deceased child or children, at the time of his (Benjamin’s) death. In a will, the word “ issue ” prima facie means “ heirs of the body,” and is a word of limitation and not of purchase, unless there be something on the face of the will to show it was intended to have a less extended meaning, and to be applied to children only, or to a particular class, or at a particular time: Reinoehl v. Shirk, 119 Pa. 113; Shalters v. Ladd, 141 Pa. 349. It is therefore to be construed either as a word of limitation or of purchase as will best effectuate the intention of the testator gathered from the whole instrument. It is manifest from an examination of this will that when the testator used the word “ issue,” he intended children and grandchildren of his son Benjamin. When he speaks of the “failure of issue of said Benjamin, or of his deceased child or children,” he refers to Benjamin’s death without leaving a child or children, or the issue of a child or children surviving him, the said Benjamin. The words “ issue ” and “ children ” are used synonymously. The words “die without leaving issue,” and other expressions of the same import, standing alone, mean an indefinite failure of issue: Taylor v. Taylor, 63 Pa. 481; Middleswarth v. Blackmore, 74 Pa. 414. At common 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 taker; and such has undoubtedly been the rule in this state since Eichelberger v. Barnitz, 9 W. 447; Hackney v. Tracy, 137 Pa. 53. This rule, however well established, always yields when a contrary intent is clearly expressed by a testator. [436] The language used by this testator leaves no room for doubt upon this question. He refers, as clearly as language can make it, to a failure of issue at the death of the first taker, viz., his son Benjamin. The gift to the latter “ during the period of his natural life, remainder to his issue, if there be any at the time of his decease,” and the words, “ on failure of issue of said Benjamin or of his deceased child or children, at the time of his death,” all contained in the same paragraph, clearly refer to the death of Benjamin, and not an indefinite failure of issue. We have, then, a gift to Benjamin for life, remainder to his children and grandchildren, if any there be at the time of his death; and, in case there shall be neither living at Benjamin’s death, then to the heirs at law of the testator as they would take under the intestate laws. We are of opinion the learned judge below was right in holding that Benjamin took but a life-estate, and in entering judgment for the defendant in the case stated. Judgment affirmed.