Robins v. Quinliven

Mr. Justice Williams

delivered the opinion of the court, January 6th 1875.

The question presented by the case stated is, what estate did Mary Robins take in the lot in controversy under the will of her father? Was it an estate for life, or an estate in fee simple?

The lot was devised to her for and during her natural life, free, clear and discharged from any estate, claim or control of her present or any future husband, and after her death to her issue and their heirs for ever in the proportions to which they would be entitled, under the intestate laws of Pennsylvania, respectively. It is clear that the testator did not intend to give his daughter an estate in fee simple, nor an estate of which her husband could be tenant by the curtesy. The gift to her was expressly for life. The remainder was given to her issue and their heirs for ever. Was her life estate enlarged and converted into an estate tail, oían estate in fee simple under the Act of 27th April 1855, by the gift of the remainder to her issue? This depends upon the objects of the gift and the character in which they were intended to take. If by “issue” the testator meant “heirs of the body ” of his daughter, and intended that they should take as such heirs, then, under the rule in Shelly’s case, the remainder vested in her as devisee for life, and she took the whole estate as tenant in tail. But if by “issue” he meant children, and intended that they should’ take by purchase, and not by descent as heirs of their mother, then she took only a life estate. It is well settled that the word “issue” in a will, primá facie means “heirs of the body,” and in the absence of explanatory words showing that it was used in a restricted sense, is to' be construed as a word of limitation. But if there be on the face of the will sufficient to show that the word was 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, it is to be construed as a word of purchase, and not of limitation in order to effectuate the intention of the testator: Slater v. Dangerfield, 15 Mees. & Wels. 263 ; Guthrie’s Appeal, 1 Wright 9 ; Kay v. Scates, Id. 31 ; Taylor v. Taylor, 13 P. F. Smith 481; Kleppner v. Laverty, 20 Id. 70 .

Apart from the primá facie meaning of the word, there is nothing on the face of the will before us to show that by “ issue ” *336 the testator meant “ heirs of the body,” and intended that they should take by descent; the gift to the issue is not immediate, but after the death of the devisee for life ; and there is no devise over in default of issue from which an estate tail can be implied. Besides, the gift of the remainder is not to the issue alone, but to the issue and their heirs for ever, in the proportions to which they would be entitled, under the intestate laws of Pennsylvania, respectively; that is to say, in equal shares as tenants in common. The limitation to the heirs general of the issue, with the super-added words of distributive modification, clearly shows that by “ issue,” the testator meant children and intended that they should take the remainder as purchasers and not as heirs by descent. The law is well settled that where there is a devise to one for life, with remainder to his issue as tenants in common, with a limitation to the heirs general of the issue, the issue take as purchasers in fee: Greenwood v. Rothwell, 5 Man. & G. 628; Slater v. Dangerfield, supra; and even when the limitation is to heirs of heirs of the body, to take distributively, with superadded words of limitation, such a direction is held to convert even the technical words “heirs of the body” into words of purchase: Smith on Exec. Int. 488 ; Frame on Rem. 154 ; Guthrie’s Appeal, supra. The court below was, therefore, in error in holding that Mary Robins took an estate in fee under the will-of her father, and entering judgment for the defendant on the case stated, the plaintiffs were entitled to recover as devisees of the remainder, and the judgment should have been in their favor.

Judgment reversed and judgment fo.r the plaintiffs on the case stated.