Toman v. Dunlop

18 Pa. 72, 1851 Pa. LEXIS 226

• Court: Supreme Court of Pennsylvania
• Decided: September 29, 1851
• Status: Published

Opinion

The opinion of the Court was delivered by

Gtbson, O. J.

A satisfactory .result can be obtained in this case only from an analysis of the will. The first limitation in it is to the testator’s son James, expressly, for life. The second is to the three children of James, by name, in the words of the testator, to “his heirs for ever, viz. William, Charlton, and Ann Janetteto whom the estate is given in parcels to be enjoyed by them in severalty. This limitation to them by name, coupled with the word “forever” which is a word of inheritance in a will, though not in a deed, made them purchasers of a vested remainder in fee. Of what description ? On that point the will is clear. “ But it is my will,” adds the testator, “that if either of my said grandchildren, viz. William, Charlton, and Ann Janette, die before my said son, James Toman, without leaving lawful issue, then his or her share shall go and be equally divided among the survivor or survivors.” Had this failure of issue been designated as an indefinite one, the fee simple before given by the word forever, would have been cut down by implication to a fee tail with cross remainders by express devise to the survivors : and as such I was at first inclined to view it. The failure described by the testator, however, was not a general, but a particular one, which would happen, if at all, only in the lifetime of James Toman; and an estate tail is implied only from a provision for a general failure. Had one of the grandchildren died and left issue living James, such issue would not have been tenant in tail, but the absolute owner in fee, because the contingency would not have happened on which the estate was to have gone over. The estate limited in severalty to each of the three, therefore, was a qualified or defeasible fee, on •which was mounted by executory devise, a further limitation to the survivor or survivors, at the death of the father. A common recovery does not bar such a limitation ; but, on the principle of estoppel, it certainly passes the estates of all who were parties to it; and not only did the children of James seal the deed to lead the uses, but two of them were vouched without counterpleading the warranty. The recovery, therefore, destroyed all the limitations to the grandchildren.

By the will, they had a defeasible fee simple; and, as has been said, any further limitation could be only by executory devise. Had it not been for this principle, a survivor would have had a fee tail engrafted on his fee simple. “And if all three should die,” says the testator, “without leaving lawful issue after the death of my son James Toman, then my entire estate shall go to my next of kin now living in Ireland, to be divided among them, share and share alike.” This final limitation is clearly an executory devise to the next of kin bn the happening of what is described as a general failure of issue, which would be too remote, and the only difficulty in the case is to determine whether it is not restrained to the life of the survivor of the devisees. It is certain that an executory devise to a person in esse to take effect on a general failure of issue, is good, because the estate must go over, if at all, in the lifetime of the devisee. But the words “ next of kin” -were evidently intended to designate a class or stock; and the words “ now living in Ireland” were as evidently intended to give it a local habitation and a name, in order to distinguish it from some other class or stock of the same stamp residing elsewhere. They are words of location, not of individuation. Is it possible the testator could have intended that his estate should escheat rather than go to the descendants of his Irish relations then living ? He could not have intended to designate individuals, by a general description, who might have died since he had heard of them, to the exclusion of their children. The happening of the contingency, therefore, was not restrained to the lifetime of the devisees in Ireland; and the result of the whole is that, as the intermediate limitations were destroyed by the common recovery, and the executory devise is void, the whole estate is vested absolutely in James Toman.

Judgment affirmed.