Graham v. Abbott

Opinion by Mr. Justice Dean,

There are no disputed facts in this case. The' question raised by the issue, is, what is the proper construction of the last will of James Graham, deceased ?

The particular clause of the will, the interpretation of which is disputed, is in these words:

“Should my son Samuel C. Graham die without issue, then the said real estate, being the undivided one half interest in said lots and four warehouses, shall revert to my lawful heirs then living, their heirs and assigns, subject to the payment of said twenty thousand dollars, to my executors in trust for my son James Graham, if the same shall not have been previously paid.”

Standing alone, these words under the settled law of interpretation in this state, import an indefinite failure of issue. Eichelberger v. Barnitz, 9 Watts, 447 , has long since determined that to be their legal meaning. As is said in that case: “ The principle has now become a rule of property in relation to lands, that if a devise be made to one in fee, and if he die without issue, or on failure of issue, or for want of issue, or without leaving issue, then over to another in fee, the estate of the first taker is a fee tail which if he have issue, passes to them ad infinitum by descent as tenants in tail.”

Eichelberger v. Barnitz, supra, was only the adoption of the English rule, see 2 Powell on Devises, 564, and of our own earlier case, Clark v. Baker, 3 S. & R. 470. Even in Eichelberger v. Barnitz, the rule was then, more than sixty years ago, declared to be a rule of property in this state. It has been followed without hesitation in numerous cases down to within a year. In not one of them has there been an attempt to overrule, modify or restrict it. Invariably, the word “ issue ” in a will, has been held to mean the same, prima facie, ,as “ heirs'of the body: ” Wistar v. Scott, 105 Pa. 200 . It is true the application of the rule has not been so rigorously applied in the interpretation of bequests of personal property, nor has it been applied at all where the devise over of land to take effect is expressly or impliedly limited to a period fora life or lives in being and twenty-one years after. N or have the words in their technical interpretation been permitted to override or destroy the cardinal rule of testamentary interpretation, that the “intent of the testator *72 when clearly ascertained from the language of the whole will must control.” As we have said over and over, precedents in will cases in interpretation of intent of the testator are seldom of use to us. They are rarely in precisely the same language, the property devised is not the same, the objects of his bounty stand in different relation to him and to each other. Hence, the numerous apparently conflicting cases, very many of them cited by appellant on the argument. When closely examined, every one of them shows some significant point of difference disclosing a clear intent to devise on a definite failure of issue. But we can discover nothing in this will which indicates that testator used the words : “ Should my son Samuel C. Graham die without issue, then' the said real estate .... shall revert to my lawful heirs,” in any other sense than that which the law gives to them. True, we may guess, from our knowledge of men and their conduct, that he probably was ignorant of the legal rule of interpretation of the word issue as usually distinguished from child or children, and did not know that the act of April 27, 1855, resolved the “estate tail” he devised to his son into a fee simple, but we cannot guess as to testator’s meaning, when his unmistakable words and the law fix beyond cavil the quantum of estate that vested in the son. “ Technical words in a will are presumed to be used in a technical sense unless the context indicates a clear intention to the contrary Middlesworth v. Collins, 8 Leg. Intel. 11. And this presumption exists whether a lawyer or layman’as scrivener, used the technical words.

It is argued that this will as. shown by the devises to the other children, points out that the general scheme of testator was to devise all his property subject to a definite failure of issue in the first takers and therefore, to harmonize the clause in dispute it must be read, as also importing a definite failure of issue. The rule laid down by Judge King in Earp’s Will, 1 Parsons, 453 , that where in cases of doubtful intention, “ one construction manifestly tends to destroy the whole scheme of distribution, and another harmonizes with it, the latter should be adopted,” has been pretty generally followed by this court; but it has no application here. As to thejdevises to the others of his children, the language clearly signifies a definite failure of issue; the clause before us clearly does not import a definite *73 failure of issue; the intention is not .doubtful for apt words to express it are used; the law imperatively fixes their meaning when used ; they are not out of harmony with testator’s intention though they give a different estate to the one son from that given to his other children. To say that this clause is out of harmony with the general scheme and therefore violates the intention, would be carrying Judge King’s rule of interpretation entirely too far; would be to hold that a testator must have intended to give to all his children the same estate because he gave to five of them a fee simple, a sixth one a life estate only.

The question of jurisdiction of equity was not raised.

We think the decree of the court below was right, therefore, the assignments of error are overruled and it is affirmed.