Swift's Estate

Gest, J., The judge who presided at the hearing of this appeal has fully recited the facts in his opinion, and has construed the will of Ellen T. Stockdale, by which was devised the real estate in dispute. We are of opinion that this devise is not governed by the rule in Shelley’s Case, and, consequently, the exceptions should be dismissed. The learned counsel for the exceptant presented an able and elaborate argument, citing many cases which we do not consider it necessary to discuss, even if it were possible to do so within any reasonable limits, for we think that the intention of the testatrix clearly appears from an examination of her will. It is, of course, obvious that, as this will was executed before July 1, 1897, the Act of July 9, 1897, 4 Purd. 5147, has no application, and it may be conceded that, under the well settled law prior to that act, the word “issue” in a devise like this means, prima facie, heirs of the body, and is to be construed as a word of limitation, but it is equally well settled that this construction will give way if there be in the instrument itself sufficient to show that the words were intended to have a less extended meaning, and to be applied only to children or to descendants of a particular class, or at a particular time, and not to the whole line of succession: Taylor v. Taylor, 63 Pa. 481; Robins v. Quinliven, 79 Pa. 333. And as it was said in Miller’s Estate, 145 Pa. 561, the courts have seized with avidity on any circumstance, however trivial, denoting an intention to fix the contingency at the time of the death. In the present case, we think the controlling circumstance, by no means trivial, but, on the contrary, persuasive, is found in the words “such issue of each of said granddaughters [to take] such interest as his, her or their mother would' enjoy for life if living.” As Justice Sharswood said in the very similar case of Taylor v. Taylor, 63 Pa. 484: “No declaration could well be more express to show that by ‘issue’ [the testator] meant children.” The same learned judge, in the later case of Hill v. Hill, 74 Pa. 173, referred to Taylor v. Taylor as showing that the meaning of the general word “issue” was controlled by the subsequent reference to their mother; and we may also cite the later cases of O’Rourke v. Sherwin, 156 Pa. 285, and Oliver’s Estate, 199 Pa. 509 (neither being affected by the Act of 1897), in which the similar word “parent” was employed. While this proceeding is, in form, an appeal from the assessment of inheritance tax in the estate of Julia M. Swift, it is evidently intended to determine [556] who are the owners of the real estate under the will of Ellen T. Stockdale and subsequent devolutions. That is, the appraiser valued premises No. 926 South Street and No. 4222 Chester Avenue in certain sums, and held that, under the rule in Shelley’s Case, Julia M. Swift had a certain interest therein, and so assessed the tax. The appellants claimed that the rule in Shelley’s Case did not apply, and that, therefore, the parties entitled are the heirs-at-law of Elle>n T. Stockdale as they existed at the time of her death. These persons, having made an agreement to sell these properties, were unable to procure title insurance; whereupon all parties in interest, or having any claim to be interested, agreed in writing that, in order to secure a judicial interpretation of the will of Ellen T. Stockdale, it should be construed by this court in this appeal from the assessment of tax, that the conveyance should be executed by all parties in interest, and that the purchase money should be distributed by the title insurance company according to the decision of the court. Were it not for the decision in Belcher’s Estate, 211 Pa. 615, we should be disposed to think that the appraisement of the tax should be deferred until the question of title had been settled in the regular and orderly manner, by bill for specific performance, or case stated in the Court of Common Pleas, or otherwise. As it is, we content ourselves with the observation that the practice here adopted is to be deprecated, especially as it is by no means certain that our decree will constitute res judicata, so far as concerns the other real estate devised by Ellen T. Stockdale. The exceptions to the decree are dismissed.