Morrison v. Truby

Opinion, Mr. Justice Clark: Upon an examination of the will of Absalom Reynolds, deceased, it will be observed that the testator, in the fourth clause of his will, devised certain lots of ground, including the lot in question, to his daughter Jessie in fee-simple. The devise is to her and her heirs; whereas, the devise of the hotel property to. his son Harry, in the preceding clause, is for “ his natural life, and after his death to his children and their heirs.” After providing for • his wife out of the personal estate, he gave to each of his children certain personal property, money, stocks, United States bonds, etc., and afterwards gave to them jointly the rest and residue of his estate, real, personal, and mixed, absolutely and in fee-simple. In the eighth clause of his will, however, he provides as follows : ■ “ It is my will and I do order, direct, devise, and bequeath, that if either of my children, Harry Reynolds or Jessie Reynolds, shall die without leaving lawful issue living at the time of his or her death, then, and in that event, all the real estate, personal property, money and property, herein or hereby devised, given or bequeathed to the child so dying, shall go, pass [546] to, and become vested in the surviving child absolutely and in fee-simple.” It is contended by the appellant that these provisions are contradictory and inconsistent, and that the effect of the eighth clause is to limit the previous devise made to his daughter Jessie in the fourth, and that, in consequence, her estate is liable to be defeated at her death if she should die without leaving lawful issue, etc. The words lawful issue in the will prima facie mean heirs of the body, and are words of limitation. To die without lawful issue, in general imports an indefinite failure of issue. But this construction will yield to a contrary intent apparent on the face of the will: Taylor v. Taylor, 63 Pa. 481; Kleppner v. Laverty, 70 Pa. 70; Ingersoll’s App., 86 Pa. 240. In this case, however, we do not understand the provision, “ if either of my said children, Harry Reynolds or Jessie Reynolds, shall die without leaving lawful issue living at the time of his or her death,” in the sense of a limitation ingrafted upon or qualifying the fee ; nor do we understand the testator to have meant death generally, or whenever it’ might happen, but death in the testator’s lifetime; and upon this contingency the devise over to the survivor was intended to take effect by way of substitution. The writer of the will had a full knowledge of the legal meaning of the words employed ; and it is extremely improbable that, after conferring a fee in strictly accurate technical terms, he meant, in the eighth clause, to strike it down and reduce it to a life-estate merely. It will be seen upon an examination of the eighth clause, that it applies not only to the real estate, but also to the personal property, stocks, bonds, money, etc., bequeathed to his son and daughter. The devises and bequests are blended in the provision that; upon the death of either his son or daughter, the whole should go to the survivor absolutely and in fee-simple. As to personal estate, the rule of construction in such cases is well settled. In Mickley’s App., 92 Pa. 514, Mickley, the testator, béqueathed one sixth of his estate to one of his sons “ or his heirs,” and a like proportion in the same language to the two other sons, and the remaining three sixths in trust for each of his three daughters. He also directed: “ If either of my sons should die without leaving issue living at the tima [547] of Ms death, the share given to such son shall, pass to and be divided among such of my children as may be then living, and to the issue of such as may be dead.” It was held that each son had an absolute, indefeasible interest in the share bequeathed to him. The general rule was recognized that, if a bequest be made to a person absolutely in the first instance, and it is provided that in the event of death, or death without issue, another legatee or legatees shall be substituted to the share or legacy there given, it shall be construed to mean death or death without issue before the death of the testator. To the same effect are the following cases: Biddle’s Est., 28 Pa. 59; Fitzwater’s App., 94 Pa. 141; and Stevenson v. Fox, 125 Pa. 568. We cannot believe that the testator intended the same words, applied generally to both classes of property, to have a particular effect with respect to one class, and an entirely different effect with respect to the other; for, having blended them in this particular clause of the will, the undoubted inference is that he intended this clause to be subject to the same construction as to both. In Mickley’s Appeal, supra, it is said by Chief Justice Shabswood that, whilst in the English cases a distinction is made in this respect between devises of realty and bequests of personalty, no such distinction is recognized in this state. Indeed, Mickley’s Appeal is ruled upon the authority of Caldwell v. Skilton, 13 Pa. 152, which is a case arising upon a devise of realty. In that case, a testator devised real estate to his wife during life or widowhood, and at her decease or marriage, the estate to descend to and be enjoyed by his children and their heirs and assigns forever, as tenants in common; and in case of the death of either of the said children, his or her share or purpart to descend to the children of said child, or, if said child should die without issue born alive, then the said share to be divided among and be enjoyed by the surviving children, their heirs and assigns forever. It was held that each of the children, on the death of the testator, took an indefeasible estate in fee-simple under said will; that, by the clause “ in case of the death of either of my said children,” the testator did not mean death generally, or whenever it might happen, but that he meant, his wife having died during his lifetime, that the fee should [548] vest absolutely on his death, and that it was not defeasible throughout the entire life of the children. Mr. Justice Bell, upon a review of the authorities in the case last cited, concludes that, where there is nothing to indicate an adverse intent, additional limitations dependent upon no other contingency than is-implied from the language “if any of them die ” or “in case of death,” cannot be referred to the event of death whenever it may happen, which would be to give an enforced signification to such words, but must be construed as referring to death in association with some additional circumstance which makes it actually contingent. That circumstance, it is said, is naturally in regard to the time of its happening; and that time, where the gift is immediate, is necessarily the death of the testator, there being no other period to which the death can be referred. Caldwell v. Skilton was afterwards approved in Jessup v. Smuck, 16 Pa. 340. In Fulton v. Fulton, 2 Gr. 28, the words were : “ If any of the above-named four children should die, it is my will that the share of such one be equally divided among the survivors; ” and it was held that the death' referred to was a death in the testator’s lifetime, and that, as the four children survived him, their estates were absolute. In speaking of the effect of such a construction, this court said: “ It avoids the fault of converting an express fee-simple estate into a life-estate, or an estate-tail by implication. It avoids the fault of seeming to give a fee-tail or a life-estate in personal property, both the realty and personalty being granted by the same words. It follows the rule that that construction ought to be favored which makes an estate vest absolutely g.t the earliest possible period.” So, in Fahrney v. Holsinger, 65 Pa. 388, the words of the devise were, “ I give to my son Daniel and my daughter Susanna the balance of my farm, at $55 per acre.” By a codicil it was ordered that, “ if my daughter Susanna die without heirs, then the part bequeathed to her shall fall to Daniel at the same rate as in the will,” etc. It was held that the devise was a fee to Daniel and Susanna; that heirs, in the codicil, meant issue ; and that the contingency of death without issue, under the whole scheme of the will, was confined to the testator’s lifetime. To the same effect is McCullough v. Fenton, 65 Pa. 418, where it was held that a like allege^! limitation over to the [549] brothers and sisters was not a remainder, but an alternative substitute fee, to take effect upon the death of the first taker without issue before the period of enjoyment. The case was decided upon the authority of Caldwell v. Skilton, supra, “ which,” Mr. Justice Sharswood says, “ in all the conflicts of opinion on this subject, has never been denied or doubted.” The text-writers recognize the same rule. “Sometimes,” says Mr. Jarman, “ where an estate in fee is followed by apparently inconsistent limitations, the whole has been reconciled by reading the latter disposition as applying to the event of the prior devisee in fee dying in the testator’s lifetime; the intention being, it is considered, to provide a substitute devise in the case of lapse : ” 1 Jarman on Wills, 478. We may refer, also, to Smith on Executory Interests, 559, and to the English cases of Doe v. Sparrow, 13 East 359, and Clayton v. Lowe, 5 B. & Ald. 636. Where the gift is immediate, that is to say, to take effect immediately upon the testator’s death, it is determined by the first-named event: Fahrney v. Holsinger, supra; Fulton v. Fulton, supra; but, where there is an intermediate estate, or where a time is fixed for the enjoyment of the devise, time may be given for the happening of the possibility during the running of the precedent interest, or until the period of enjoyment arrives : Caldwell v. Skilton, supra; McCullough v. Fenton, supra. Thus, the actual contingency may happen in the lifetime of the testator, or of the first taker, or before distribution or the period of enjoyment, according to the intent of the testator as disclosed in the provisions of his will. In this case, however, it is plain that, as the disposition was immediate, the death in contemplation was a death in the testator’s lifetime. It follows that as Jessie, the daughter, survived the testator, her title is absolute and indefeasible. The judgment is affirmed.