Smith v. Shriver

GRIER, Circuit Justice. There are two' great rules in the construction of wills, which often come into conflict, and have been fruitful in litigation. One is. that the intention of the testator must prevail; the other, that the heir-at-law shall not be disinherited without express word or necessary implication. That the application of the- latter rule has had the effect of defeating the intention of a testator in ninety-nine cases out of a hundred, has often been a subject of complaint “I verily believe,” says Lord Mansfield (Mitchell v. Sidebotham, 2 Doug. 759), “that in almost every case where, by law, a general devise of lands is reduced to an estate for life, the intent of the testator is thwarted. Eor ordinary people do not distinguish between real and personal property.” So also, Mr. Justice Buller, in Palmer v. Richards, 3 Term R. 359, says, “There is hardly any rule of this sort where only an estate for life is held to pass, but that it counteracts the testator’s intention.” Courts, thus feeling compelled to enforce this arbitrary rule, even when conscious that they were perverting the will of the testator, have been astute in searching through the corpus of the will for some expression from which to draw an inference of an intention to grant a fee, where words of inheritance, or technical language, expressing such interest, could not be found. For this purpose, the word “estate,” among others, has been laid hold of as one which described the whole interest of the testator, when not used as a term of description. The devise to the wife in this case contains no words of limitation, and taken by itself would convey only a life estate according to the established rule. Yet no man untram-melled by technical rules of construction, adopted by the courts can read this will without feeling a conviction that the .testator intended to give to each of his devisees his whole estate in the premises respectively devised to them. The great difficulty in this and similar cases is, to find some other words or phrase in the will to justify the court in giving effect to the apparent intention without disregarding the stringent rule of construction altogether, and subjecting themselves to the imputation of conjectural emendation. For this purpose the introductory words of the will have often been referred to, as showing an intention to devise the testator’s whole estate. In this case the words are — “As to such worldly estate wherewith it has pleased God to bless me in this life, I give and dispose of the same as follows.” Whether this language in the introduction can be carried down to the dividing clause, so as to make a part thereof, and enlarge the devise to a fee, is the question in the case. If this question were to be decided entirely on English precedents, it must be admitted, that the rule established there is, “that the word ‘estate,’ merely used in the introductory clause of a will, when the testator professes in the usual manner of his intention to dispose of all his worldly estate, will not have the effect of enlarging the subsequent devises in the will to fee.” Rules of construction of wills become rules of property, and the stability of titles greatly depends on adherence to them when once established. Hence the question in this ease is one of Pennsylvania law, as settled by her own courts. How far they have adopted the policy of England in enforcing a rule of con662 struetion favorable to tbe heir-at-law, is a question to be decided by them. Their former decisions cannot be reconciled. Some one of them must be overruled and the others established; and if their own tribunals have done this, it is not for this court to criticise or doubt the correctness of their decision. The legislature of this state in 1833 have cut the knot as to all wills made since that time, by abolishing the rule altogether, and declaring that “all devises of real estate shall pass the whole estate of the testator in the premises, although there be no word of inheritance, unless it appear by a devise over or other words of limitation, that the testator intended to devise a less estate.” This will was made before the passage of this act, and has been twicé before the supreme court of Pennsylvania. In the argument of the case of Weidman v. Maish, 16 Pa. St. 510, the introductory clause in the will does not appear to have been relied on, there being other expressions in it which, it was contended, justified the construction that an estate in fee was intended. The opinion of the court considers those arguments, disposing of the introductory clause in a single sentence. In the case of Schriver v. Meyer, 19 Pa. St. 88, the case turned entirely on the effect to be given to this introductory clause. A solemn decision of the supreme court supported either view of the question,- — the case of French v. Mcllhenny, 2 Bin. 13, on one side, and Steele v. Thompson, 14 Serg. & R. 89, on the other: but each decided by a divided court; Judges Yeates, Breckenridge and Duncan on one side, and Chief Justices Tilgh-man and Gibson on the other. In such a contest who is to decide? Not the courts of the United States. “Non nostrum est tantas com-ponere lites.” The supreme court of the state have met the question and have decided it. After the able opinion delivered on the occasion of Schriver v. Meyer, by Mr. Justice Lowrie for the court, and Mr. Justice Gibson dissenting, further discussion of the merits of the question would be superfluous — all has been said that can be said on either side. Instead, therefore, of again discussing this moot question, this court feel that it is their duty to follow what now appears at last to be the settled doctrine on the subject.' In addition to the early case of French v. Mc-Ilhenny (1809) 2 Bin. 13, we have now Schriver v. Meyer, 19 Pa. St. 87, Wood v. Hills, Id. 513, and Shinn v. Holmes, 25 Pa. St. 142, all concurring. The authorities are no longer in equilibrio. The question is settled. and should not be again disturbed. It will soon become obsolete under the wise legislation abolishing the old common law rule, which subverted the intention of the testator to subserve the policy of English institutions. The courts of Pennsylvania will of course adhere to the rule, as settled by their own highest tribunal. We are not disposed to encourage eases like the present. It is an easy thing under the .transparent contrivance of a transfer to John Doe or John Smith (supposed to reside in another state), to bring every question of title to real property before the courts of the United States. This is the last of many cases, and I hope will continue to be the last, where titles decided in the state courts, after years of exhausting litigation, have been thus transferred and the litigation renewed, in the vain hope that the courts of the United States will assume to reverse the supposed errors of the st¿te tribunals in questions of real property in dispute between their own citizens. In such cases it is our duty to pronounce the law of Pennsylvania, as defined by her own legislature and judiciary, and not to assume the position of umpire and pronounce the opinion, of even the ablest minority of her judges entitled to more respect than that of the majority, and thus add to the confusion and uncertainty of titles. It would be a humiliating spectacle if this court should, under one rule of construction, deliver the land to the heir-at-law, who would probably be turned out of possession immediately by the de-visee, in an action brought in another forum. Such would, I doubt not, be the result of a judgment for plaintiff in this case; and such a collision of judicial authority can only be avoided by the course now pursued. Pease v. Peck (Sup. Ct. U. S.) 18 How. [59 U. S.] 598, which enumerates certain instances as exceptions to the rule of adhering to state decisions, does not apply to the present. Judgment accordingly.