McIntyre v. McIntyre

(a) A will admitted to probate July 24, 1830, in the introductory paragraph provided: “ And to such worldly estate wherewith it hath pleased God to entrust me, I dispose of the same in the following maimer: ” (£>) A devise by a subsequent paragraph was as follows: “I will and bequeath to my daughter, Maiy McIntyre, the one half of the land that I possess above the road, that is the north end. She will not have power to sell but may leave the same to her children.” 1. In such case, the first sentence of the devise to the daughter, construed with the sentence quoted from the introduction, passed a fee, unaffected by the attempted restraint upon alienation in the second sentence. 2. The clause, “but may leave the same to her children,” is precatory only, not obligatory, so that it cannot defeat the otherwise operative effect of the previous disposition by the devise in fee.

~ ERROR TO THE COURT OE COMMON PLEAS NO. 2 OK ALLE-GIIBNY COUNTY. No. 109 October Term 1888, Sup. Ct.; court below, No 349 April Term 1887, C. P. No. 2. On June 15, 1887, a case stated in ejectment was filed, wherein Johnston McIntyre and Robert McIntyre, a lunatic, by T. W. McCune, his committee, were plaintiffs, and Mary Anti, Joseph, Sarah, Isabella H. and David R. McIntyre, were defendants. The facts set forth were as follows: James Boyle died in 1830, seised of a parcel of land in the Tenth ward, Allegheny city, and leaving a last will dated January 4,1830, duly admitted to probate on July 24,1830, which contained inter alia, the following provisions: “.....And to such worldly estate wherewith it hath pleased God to entrust me I dispose of the same in the following manner. “1. I will and bequeath to my beloved wife Mary all my property during her natural lifetime for maintenance and the presence incumbrance of my daughter-in-law and her children. * * * * * * * * “ 6. I will and bequeath to my daughter Mary McIntyre the one half of the land that I possess above the road, that is the north end. She will not have power to sell but may leave the same to her children.” “7. I will and bequeath to my daughter Sarah Boyle the balance of the land that I possess above the road she has no power to sell but she may leave it to her children if it should please providence that she should be blest with children of her own. If not to her brother or sister’s children or both at her pleasure.” * * * * * * * ■ The property in dispute, containing between ten and eleven acres was that devised as above to Mary McIntyre, who after the death of her mother went into possession thereof and occupied it until 1881, when she died leaving to survive her seven children, to wit: Mary A., Joseph, Sarah, Isabella H., Johnston, Robert L. and David R. McIntyre, and two grandchildren, Kate and John McIntyre, children of James McIntyre who died in 1872. James McIntyre;, her husband, died in 1855. Mrs. McIntyre left a last will, dated September 12, 1879, admitted to probate December 16, 1881, and which contained this provision: “ First. I give and bequeath to my three daughters all my estate, real, and personal and mixed, as follows: I give to my daughter Isabella one half of all my estate, to my daughter Mary Ann one fourth, to my daughter Sarah one fourth, to my said daughters in fee simple; My daughters are informed of my wishes in regard to their brother Joseph, and I commit my desire to their fulfillment.” The case stated then proceeded: The defendants Mary Ann, Joseph and Isabella H. are in possession of the land aforesaid, and each and all of said defendants refuse to recognize the plaintiffs as tenants in common of said land and also refuse to allow the plaintiffs to participate in the rents, issue and profits of the same. If the court should be of opinion that Mary McIntyre took an estate for life under the will of her father James Boyle, coupled with a power of appointment in fee to her children, and that her will is not an execution of said power, then the verdict to be for the plaintiffs for two sevenths of the land in dispute. But if the court should be of the opinion that Mary McIntyre had the power to leave it to such of her children as she should nominate and appoint, and she has executed such power by her will, then judgment to be entered for the defendants. After argument, the court, Ewing, P. J., on July 9, 1887, filed the following opinion and decree: By his will dated January 4, 1830, probated July 24, 1830, James Boyle devised as follows : Item 6, “I will and bequeath to my daughter, Mary McIntyre, the one half of the land that I possess above the road, that is the north end. She will not have power to sell, but may leave the same to her children.” The land in dispute is the land described in item 6 of James Boyle’s will. Mary McIntyre having occupied the land during her lifetime, made her will dated September 12, 1880, probated December 16, 1881, in which she devised to her three daughters, Isabella, Sarah and Mary Ann, as follows: “All my estate, real, personal and mixed,” in unequal proportions, but without any description of the real estate or reference to the power given her in the will of James Boyle. At the time of her death Mrs. McIntyre left surviving her seven children, of whom two are the plaintiffs, and as we understand the case stated, two grandchildren, the children of a deceased son, who are not parties to this suit. If the will of James Boyle gave Mrs. McIntyre a fee-simple, her will gives a good title to her daughters, the defendants. If by the will she took but a life estate with power to distribute among her children by will, we are of the opinion that her will is not a valid execution of the power, because, first, it does not purport to execute any such a power by reference to the power or to the wdll of her father, or by any description of: the property, or by any necessary intendment; non constat, that she did not have other property, of her own which she disposed of by this will; second, if in execution of the power, her will is void, because it excludes a part of the children to whom as a class she could leave the land. Did the will of her father give to Mary McIntyre but a life estate or did it give her a fee-simple or fee-tail ? Prior to the wills act of 1833 the law of interpretation was that “a devise without words of inheritance will only give an estate for life, unless it can be fairly inferred from other parts of the will that more than a life estate was intended: ” Clayton v. Clayton, 3 Binn. 476, and .numerous other cases. The cases are collected and commented on in Schriver v. Meyer, 19 Pa. 87. That James Boyle intended to devise the entirety of this land to some persons is evident to us from the whole will. In the preamble to his will he says “he is desirous to settle his worldly affairs.”.“ And to such worldly estate as it hath pleased Cod to entrust me with, I dispose of the same in the following manner.” First, he gives all his property to his wife during her life. And next he proceeds to dispose of portions of it to his children; of course subject to the life estate of their mother. If there was nothing expressly to the contrary we would conclude, that notwithstanding the rule that without words of inheritance a life estate only is devised, that it was the intention of the testator to give a fee in remainder to his daughter, Mrs. McIntyre. But he proceeds and says, that “she shall not have power to sell.” Now this condition attached to a fee is void; but as said in Grim’s App., 1 Gr. 209, when we are seeking the intention of the testator such a condition is strong evidence that the testator did not intend a fee. Then following this declaration of want of power to sell, is the power given, “she may leave the same to her children.” There is nothing in the will to indicate that by “ children ” the testator had any other meaning than the primary one, i. e., children as a class; not heirs of the body. The whole will is in accord with this view. The testator intended but a life estate in his daughter, with power to leave it by will to all her children as a class. In default of a proper exercise of the power, the children take, as a class, as tenants in common. In accordance with the decision in Stephenson v. Richardson, 88 Pa. 40, the children of'the deceased brother are entitled to one share. This view of the case shows that each of the plaintiffs is entitled to the one eighth of the whole. And now, July 9, 1887, after argument and upon consideration, the court being of the opinion that the law is with the plaintiffs, judgment is entered on the case stated in favor of the plaintiffs for the undivided two eighths of the land described in the writ, with six cents damages, and costs. Thereupon the defendants took this writ specifying errors: 1. In ruling that the children of the deceased brother were entitled to one share. 2. In entering judgment for the plaintiffs for the undivided two eighths of the land instead of two sevenths, as agreed on in the case stated. The devise in this case was, “I will and bequeath to my daughter Mary McIntyre, the one half of the land that I possess above the road; that is, the north end. She will not have power to sell, but may leave the same to her children.” The one and only question in the case is, did this devise to children, as a class, include the children of a deceased member of that class ? The rule is, that on a limitation to a class, the time of distribution defines the members that are to constitute the class, and only children in being at the time of distribution take: Coursey v. Davis, 46 Pa. 25 ; Haskins v. Tate, 25 Pa. 249; Gernet v. Lynn, 81 Pa. 94; Walsh v. Wallinger, 2 Russ. & M. 77; Needham v. Smith, 4 Russ. 819; Kennedy v. Kingston, 2 Jac. & W. 431. The question was not raised in Stephenson v. Richardson, 88 Pa. 40, and that case is not an authority in point. 1. In the will we read, “ And with such worldly estate as it hath pleased God to entrust me, I dispose of the same in the following manner.” The cases cited in Schriver v. Meyer, 19 Pa. 87, clearly sbow that the language quoted gave a fee, before the wills act of 1833, and as- tlie words against alienation are void, the direction, permission, or advice, “ but she may leave the same to her children,” alone calls for interpretation. Exit it is submitted that, as no remainder was devised over either in express words or by implication, the daughter took a fee unaffected by that clause. A proper construction of the words must fail to give them force, either to cut down the fee devised, or to incumber it with a. power to will it to her children as a class. 2. If Mrs. McIntyre had but a life estate in the land, the fee vested in her children, each child took at its birth, and the interest of James passed to his children at his death: Merriman v. Merriman, 5 Munf. 440 ; Dickinson v. Lee, 4 W. 82 ; Hoffner v. Wynkoop, 97 Pa. 134; McKeehan v. Wilson, 53 Pa. 78. Heir, issue, children, are habitually construed interchangeably : Braden v. Cannon, 1 Gr. 61. The testator was evidently inops consilii, and the language used should not receive a technical construction. And, while the case on the exceptions does not involve a final construction of the will, may not the court consider it so far as to determine, not only whether the plaintiffs take one seventh or one eighth of the land, each, but whether they are entitled to any share of it ?