Lippincott's Estate

Hunter, J., The auditing judge found that Francis Donnon was the natural child of Helen Lippincott, and that the subsequent marriage of his mother and father legitimatized his birth. The proofs in support of this finding are overwhelming, and in any event it is a finding of fact which is binding on the court: Link’s Estate (No. 1), 319 Pa. 513; Womack’s Estate, 25 Dist. R. 101. The second question raised by the exceptions is the construction of the will of Eleanor T. Lippincott, by codicil to which she provided as follows: “With the intention of exercising the power of appointment given me by the will of my husband William Aaron Lippincott, I give, devise and bequeath all the property over which I have the right of appointment — 589 — under the will of my said husband as follows: One third thereof I give to each of my daughters Bessie Lippincott and Helen Lippincott absolutely. The remaining one third I give to my said two daughters and to my son-in-law Tristram C. Colket in trust to apply so much of the income thereof as may be necessary to the comfortable maintenance and support of my daughter Mabel Lippincott, and to pay over any balance of income in excess of what may be necessary for the comfortable maintenance and support of my daughter Mabel to my daughters Bessie and Helen or the survivor of them and upon the death Of my said daughter Mabel to pay over the principal of her share to my said daughters Bessie and Helen and their issue in equal shares.” Helen Lippincott Donnon died in 1928. Mabel Lippincott, the life tenant, died in 1940. Bessie Lippincott Colket survives. If the appointment in the above codicil to “Bessie and Helen and their issue in equal shares” gave to Helen a vested remainder, then Francis Donnon, the claimant, is disinherited, because by her will Helen gave her estate to her son, J. Henry Donnon, Jr. If, on the other hand, issue are substituted, which was the conclusion of the auditing judge, both sons take in their own right directly from the appointor. “Issue” is a word of debatable meaning. Our courts were formerly inclined to construe it in the sense of “heirs of the body”, but since the Act of July 9, 1897, P. L. 213 (now Wills Act of June 7, 1917, P. L. 403, sec. 14), which provided that “die without issue”, and equivalent expressions, shall be construed to mean a definite failure of issue, the tendency has been to treat “issue” as a word of purchase and not of limitation, and in every case to search for the intention of the testator. — 590 — It may be said with confidence that, where there is a life estate with remainder to the “issue” of the life tenant, the present-day rule is that “issue” is a word of purchase, because the intention of the testator, as so expressed, is clear that the first taker shall be restricted to a life estate, and that ultimately the estate shall go to issue. The testator, of course, may express a contrary intent, but the burden is on him who so claims. The instant case, however, is not one between a life tenant and issue. The contest here is between a remainderman and issue, and the question is whether we shall apply the old or the new rule in our construction of the phrase “Bessie and Helen and their issue in equal shares.” There are four possible constructions: (1) The testatrix may have used the word “issue” as a word of purchase and intended that the daughters “and” their issue should take concurrently as tenants in common; (2) that the daughters should take for life, with remainder to their issue; (3) that “and” should be read “or”, and issue take in substitution for a daughter deceased in the life time of the life tenant (this was the conclusion of the auditing judge) ; or (4) the testatrix used the word “issue” as a word of limitation with the intention of vesting the remainders in the daughters (which is the contention of the exceptant). The following are Pennsylvania cases having to do with the problem of a remainder to B and his issue: In Packer’s Estate (No. 2), 246 Pa. 116, the testator created a trust to endure 21 years after the death of the survivor of three named children, with provision for their descendants, and in case there should be no descendants gave part of the trust property to the children of a daughter, deceased at the date of the will, “and their issue”. The primary remainder to the descendants of the testator’s children first named failed, there being no such descendants; and the secondary — 591 — remainder to the children of the deceased daughter became effective. Two of the latter died leaving issue. One of the children, the appellant, survived. The auditing judge, as recited in the opinion of the lower court, 23 Dist. R. 297, held that the parents took a life estate with remainder to their issue. The court in banc sustained exceptions to the adjudication and construed the word “issue” as a word of substitution, and found that the living children of deceased grandchildren took estates directly from the testator. Appellant, the living grandchild, had long since assigned his interest to a trustee in bankruptcy. His contention in the Supreme Court was that his interest was a contingent executory remainder which could not have been assigned by him. The court ruled that his interest was transferable but disagreed with the lower court in its construction of the word “issue”. Mr. Justice Moschzisker said (p. 128) : “The word ‘issue’ in a will, prima facie, means ‘heirs of the body,’ and is generally a word of limitation (Reinoehl v. Shirk, 119 Pa. 108,113; Grimes v. Shirk, 169 Pa. 74, 77) ; and we find nothing in the prior parts of the will before us sufficient to indicate that, in this particular instance, the word was not so intended. Under the construction placed upon this part of the will by the court below, instead of awarding the shares of the deceased Linderman children to their personal representatives, they were given to their children.” It will be noticed, however, that this expression of opinion by the Supreme Court was but dictum, the opinion further stating: “But, since the present appellant is in no way affected by this, he is not in a position to complain; and, on his appeal, we shall hot disturb the awards as made.” In Burkley v. Burkley et al., 266 Pa. 338, real estate was devised to testator’s widow for life, and upon her — 592 — death “said estate shall fall and vest in my children or their descendants absolutely and in fee”. A son died before the life tenant, leaving issue. Held that the word “or” was used in the conjunctive, and that the word “descendants” was used in the descriptive sense of “heirs of the body”, and that the remainder was vested in the deceased son. In Shelmerdine’s Estate, 16 Dist. R. 222, the estate was given to testatrix’s husband, for life, and at his death to the children “or their lawful issue then surviving”. A son died leaving a widow and child. Held that the words “or their lawful issue” were not words of limitation, but were meant to single out individuals who were to take by substitution. A similar conclusion was reached in Borden’s Estate, 44 D. & C. 279, where a remainder was given to the sons of testator “or their legal issue”. ■ It is impossible to distinguish the reasoning of the Supreme Court in Packer’s Estate and the decision in Burkley v. Burkley et ah, supra, from the instant case. We can reject them only by finding that they do not represent the modern point of view. After mature deliberation we have reached the conclusion that Packer’s Estate and Burkley v. Burkley et al. have been modified by the later decisions, at least to the extent of the presumptions growing out of the use of the word “issue”. In English’s Estate, 270 Pa. 1, referring to the expression “die without issue”, the court said (p. 7) : “. . . now, that estates tail have ceased to exist in Pennsylvania (since the Act of 1855), there is no apparent reason why, in order to construe a devise into an estate tail, so that it may be held a fee, the word ‘issue’ should have a technical meaning forced on it for the purpose of bringing a devise within the rule of Shelley’s Case.” In Mayhew’s Estate, 307 Pa. 84, where the question was whether issue take per stirpes or per capita, the court said (p. 92): — 593 — . . the artificial conclusion to the effect that ‘issue’ meant ‘heirs of the body’ reached by early courts, influenced by a leaning toward the rule in Shelley’s Case, can no longer be regarded as applicable in interpreting the word where the context of the will does not lead to such conclusion. Where a user has failed to make clear in what sense he has used the word, it is not at all surprising that courts have reached opposite conclusions, and it is only by following the results with the apparent considerations that must have been in testator’s mind that one comes to a just and equitable decision.” And again, in Borden’s Estate, supra, at page 282: “Much of the old law giving the word ‘issue’ the same technical meaning of ‘heirs’ or ‘heirs of the body’ has been swept away and the modern trend of construction in the absence of a contrary intent is to construe that term as a word of purchase ...” Therefore, we believe that we are free to state rules, consonant with the intention of a testator, which should govern a gift to B “and his issue”. A simple and immediate gift to B and his issue, B surviving the testator, should be construed as an absolute gift. Public policy favors an indefeasible estate, and it may well be that the testator intended to give such an estate to B should he survive the testator, and made mention of issue only because of the possibility that B might die in testator’s lifetime leaving issue who, in that event, should be substituted for their ancestor. Similarly, where the gift to B and his issue is a remainder interest, as in the instant case, the reasonable point of view is that the testator intended B to have a vested interest, subject to being divested should he die before the life tenant leaving issue, but B surviving the life tenant should take absolutely and in fee. — 594 — Jarman on Wills (7th ed.) 1291, cites several English cases where gifts to issue were found to be substitutionary, among which are Pearson v. Stephen, 5 Bli. (N. S.) 203; Gibbs v. Tait, 8 Sim. 132, and Dick v. Lacy, 8 Beav. 214. These are cited, however, as exceptions to the English rule that issue is a word of limitation. Looking now at the present will we find nothing which requires us to give the word “issue” the broad and artificial meaning of “heirs of the body”. The testatrix has used the phrase “Bessie and Helen and their issue in equal shares” in contrast to words which she had used in connection with the other gifts to her two daughters in this same paragraph of the codicih The original one-third shares of Bessie and Helen she appointed to them “absolutely”. Then in setting up the trust of Mabel’s one-third share she provided that income in excess of her needs should be paid to Bessie and Helen “or the survivor of them”. Finally, we have the disputed gift of the principal of Mabel’s share at her death to Bessie and Helen “and their issue”. This contrast of expressions is significant, and indicates that Bessie and Helen were to take each of the three gifts in a different manner, the first absolutely, the second with the right of survivorship, and the third in conjunction with issue. We do not believe that “Bessie and Helen and their issue in equal shares” indicates further life estates in them, with remainder to their issue, because the testatrix knew how to create a life estate when such was her intention. Bessie Lippincott Colket, testatrix’s daughter, survives, and is entitled to her share absolutely. The rule stated in Chambers v. Union Trust Co., 235 Pa. 610, that a devise to B “and his children” is a life estate in B, with remainder to his children, born and to be born, has never been applied to a gift to B “and his issue”. — 595 — In our opinion the conclusion of the auditing judge, that the issue of Helen Lippincott Donnon shall take in substitution for their deceased ancestor, is a reasonable construction of testatrix’s will, and testatrix’s intent is better carried out by a finding that the daughters had a vested remainder, subject to be divested should either die before the life tenant leaving issue. The exceptions are dismissed and the adjudication is confirmed absolutely.