Lapsley v. Lapsley

Bell, J.

We are satisfied that the construction put upon the Avill in question by the court below, is the right one; and the reasons therefor are so satisfactorily stated in the opinion of the judge before whom the cause was tried, that, upon this point, nothing more is called for than to add.to the authorities collected by him, the cases of Eichelberger v. Barnitz, 9 W. 450 , and Langley v. Heald, 7 W. & S. 96 . The determination, in Jackson v. Blanshan, 3 Johns. Rep. 292, cited by the counsel of the plaintiff in error, upon the effect of the word “survivors,” in a will, seems to be at variance with the weight of authority, and is scarcely consonant with the rule which looks to the testator’s intention as the guide in construing testaments. It excludes from enjoyment of the subject devised, the children of those who die living any of the devisees subsequently dying without issue; a conclusion which, though perhaps justified by the usual meaning of the terms employed, is unsustained by the intention properly imputable to the devisor, who, in the absence of express direction or an equivalent implication, ought not to be suspected of a design to disinherit the issue of those who had fulfilled the principal condition annexed to the gift. To avoid such a result, the word “survivors,” in the connexion in which it is here found, has been construed to mean “others,” so as to let in the issue of the first takers. As illustrative of this rule, almost our very case is put by Powell as the result of the authorities. “If,” says he, “property be given to several persons, with a proviso that, in case of the death of any without leaving children at their death, their .shares shall go to the survivors, but in the case of the death of any leaiung children, then their shares to belong to such children; if one of the devisees die leaving issue, and then another die not leaving children, the share of the latter will go as well to the surviving objects as to the children of the deceased objects; and, by parity of reasoning, if all the legatees were then déad, leaving children, so that there were in fact no survivors, the children would take the whole 2 Pow. on Dev. 723.

The judgment recovered by Klinefelter and wife against Patterson’s Executors and others, was properly rejected as irrelevant. An inspection of the record of that case, shows that it was an action brought to recover .the legacy bequeathed to the testator’s *132 daughter, as though it was charged on the land devised; and the judgment rendered on the verdict is de terris, against the shares devised to the sons, John, Thomas, and Robert; and afterwards allotted to them in severalty. Samuel’s interest, which had before been sold by the sheriff of the county, by virtue of an execution against him, was thought to be discharged of the lien of the legacy; and -this accounts for the special character of the judgment recovered by Klinefelter and wife. Now, although an error •may have been committed in treating the legacy as a charge on the land, we are not at liberty to give the judgment a more extended operation than is assigned to it by the terms in which it was rendered, dictated by the exigencies of the clumsy remedy then in use. for the recovery of legacies charged on land, and supposed to be sanctioned by McLanahan v. McLanahan, 1 Penn. Rep. 96. We cannot correct, collaterally, blunders committed in the conduct of the principal cause. The remedy of the legatees was, properly, a personal one against the devisees. But if it be conceded the legacy was charged on the subject of the devise, the land now in controversy was discharged of its proportion of the burden by the judicial sale under the judgment recovered against Samuel, the devisee, and was, therefore,'not liable to be again called on, in the hands of the purchaser. It results that the judgment and execution, offered in evidence, as showing an outstanding title adverse to that set up by the plaintiff below, were incompetent to work the effects attributed to them, and consequently properly excluded.

' It is scarcely necessary to say, that the judgment recovered by James Patterson against Samuel Lapsley, in 1819, and the sale under it of his interest in the land to John Lapsley, passed but the estate tail, which was defeated by Samuel’s death without issue; thus making way for the operation of the remainder limited over.

Judgment affirmed.