Nicholson v. Bettle

57 Pa. 384, 1868 Pa. LEXIS 118

• Court: Supreme Court of Pennsylvania
• Decided: March 19, 1868
• Status: Published

Opinion

The opinion of the court was delivered, by

Strong, J.

Since the Act of April 27th 1855, a devise to one and the heirs of his body, or to one and his lawful issue', has the same effect as a devise to one and his heirs generally. In each case it gives a fee simple. Controlled by this statutory rule of construction, we must hold that under the will of the testator Richard Nicholson and Coleman Nicholson took a fee in the tenement No. 114 South Twelfth street. But what kind of a fee, absolute or conditional ? The testator, after having used words which, standing by themselves, would have given a fee simple absolute to his own sons, added the following, “ should either of them decease without leaving lawful issue, or heir, said estate shall pass to the survivor and his heirs.” Were it not for the Act of 1855, this would have reduced the estate from a fee simple to a fee tail in each with cross-remainders over. But as the rule of construction is now, this clause cannot be regarded as a devise of cross-remainders to the two devisees, for no remainder, either vested or contingent, can be limited after an estate in fee. If the gift over take effect at all, therefore, it must as an executory devise. The difficulty of the case, however, is in the ulterior limitation, which is as follows, “ and should they both, Richard L. and Coleman L. Nicholson, decease without having lawful surviving heir or heirs, said estate may be sold, and the proceeds of such sale be distributed amongst the surviving lawful heirs to my estate, share and share alike.” It is immaterial whether this be considered an ultimate devise to the heirs of the testator by force of which they are to take on the happening of the contingency, or whether the heirs would take as reversioners, rather than as devisees. The old rule was that an ultimate limitation to the right heirs of a grantor or devisor, will continue in him as a reversion, and not as a remainder, though the freehold be expressly limited from him. But we are inquiring now what estate was given to the two sons. That in this last limitation an indefinite failure of issue of the sons was not contemplated, is manifested by the testator’s repeated use of the word “surviving.” There is a marked difference between a gift over on the first taker’s dying “ without leaving lawful issue,” and a gift over on his dying “ without leaving lawful issue survivmg.” The latter if it means anything, must mean lawful issue living beyond the death of the first taker. It is much more expressive than th'e phrase “leaving no issue behind him,” which in Porter v. Bradley, 3 T. Reps. 143, were held to denote a definite failure of issue. Porter v. Bradley has always been recognised as authority. It was by Mr. Fearne, and it has been in this state: Eichelberger v. Barnitz, 9 Watts 447. But if the declared intention of the testator was that the land should pass to his own heirs, on the death of both his sons without leaving any issue living at their death, the estate given to the sons must have been a conditional one, liable to be defeated on the failure of their issue living at the death of the survivor of them. It was a base fee, and Lord Coke says that no remainder can be limited on a base fee: 1 Inst. 18 a; 10 Reps. 97 b. The limitation over to the heirs of the testator, therefore, was simply an executory devise, and not too remote, for it must take effect, if at all, within a life or lives in being.

The Act of 1855 practically makes the statute “ De Bonis” inoperative. It remits us to the common law as it was before 13th Edward I. And while it converts those which would have been estates tail, had it not been passed, into estates in fee simple, it has no effect upon executory devises. It would be legislation in us to hold that it has. And it would be going much farther than we feel justified in going, were wre to conclude because the act declares that because the estates in fee simple of which it speaks, shall be inheritable and freely alienable, a condition subsequent is impossible. This declaration of capability of transmission by descent, and of alienability, is mere surplusage. If not, the act has done more than convert estates tail into fees. It has given to the converted estates, qualities which do not belong to estates in fee, created in the ordinary manner. They are descendible and alienable, but the heir or the grantee takes them subject to the conditions under which they were held by the ancestor or grantor. We conclude then that the ultimate limitation in the will of Lindzey Nicholson was effective as an executory devise, and consequently the complainants are unable to make a good and marketable title.

The decree made at Nisi Prius, dismissing the complainant’s bill with costs, is affirmed.