Co. Lit., § 247; 2 Bl. Com. 135; Cruise Digest, c. xxxii., § 30. No direct claim, and no entry were ever made for the forfeiture of this estate while it existed; but it remained subsisting in the donee until it expired by its own limitation, upon his death, and until, by the terms of the will, the remainder vested in his issue.
85 Pennsylvania State, 495. - 1877.
Sharswood, J. - * * * But let us concede that the instrument of May 6th, 1819, is distinguishable from that in Turner v. Scott, supra, that it was not a will but an irrevocable grant. Eckman v. Eckman, 18 P. F. Smith 460. It conveys to Pomp, Tamer and Betty the premises "for their own use during their natural life, and afterwards to their lawful [issue], if they have any, and if not [no] lawful issue remains after their deaths, the above described lands shall revert to the lawful heirs of James Nicholson, and the said Pomp, Tamer and Betty Mathers are to take possession of said tract of land immediately after the decease of the said James Nicholson and Mary, his wife, and not before, then to have full possession, one or more of them, during their natural life and the life or lives of their lawful issue, which land by them, or any one or more of their lawful issue shall not be allowed to rent or dispose of in any way or manner whatsoever."
1 See Moore v. Littel p. 894 supra, at p. 897. See also N. Y. R. P. L. §§ 47-48. - ED.
If this instrument were a will and to be construed according to the principles applied in such cases, there would be great reason for holding the limitation to be that of an estate tail to Pomp, Tamer and Betsey. But it is a deed and the word "issue" will not supply the want of the word 'heirs' in a deed. 2 Black. Com. 115. Lord Coke tells us, on the authority of Littleton, that if a man giveth land to a man et exitibus de corpore suo, legitimate procreatis or semine suo he hath but an estate for life, for that there wanteth words of inheritance. Co. Litt. 20 b.
Taking the entire clause together we are of the opinion that it granted an estate for their lives to Pomp, Tamer and Betty, with a remainder to their children for their lives. This was of course a contingent remainder to the children, as there were none then in being. The reversion in fee was invested in James Nicholson, for a limitation to the right heirs of the grantor continues in him as the old reversion. Fearne on Cont. Rem. 50. James Nicholson devised this reversion after the death of his widow to Pomp, Tamer and Betty in fee, subject as we have seen to an executory devise over to the survivor. When it vested in them a merger of their life estate held under the deed immediately took place - of the lesser into the greater estate. No children of Pomp, Tamer and Betty had been then born - the life-estate to them in remainder was still in contingency. It was destroyed by the merger, a familiar and well-settled principle. Fearne on Cont. Rem. 323. The life-estate in remainder was left without any particular estate to support it and it fell. The deed to McClure then passed to him the fee.
Thus we conclude that quacunque via data, whether the instrument of May 6th, 1819, be regarded as a will or as a deed, the title to the premises was in the defendant below.
5 Rawle (Penn.), 230. - 1835.
Kennedy, J. - As the question to be decided in this case arises out of the will of John Rattew, deceased, it becomes necessary in order to solve it correctly, to ascertain, if possible, from the face of the will itself, what was the intention of the testator. And after having discovered this, it will be our duty in construing the devise in question, to carry it into effect, so far as it shall be found consistent with the rules and policy of the law to do so.
The words of the will which have given rise to the present controversy are: "Item, I give and bequeath to my son Aaron, the messuage, plantation, and tract of land, where my son John now lives, in Middleton township, containing about one hundred and nineteen acres, more or less, with the appurtenances, to hold to him, my said son Aaron, during the term of his natural life, and if he shall hereafter have issue of his body lawfully begotten, then to hold to him, and his heirs and assigns forever; but in case he shall die without having such issue, then I give and devise the same to all the rest of my children, and their heirs and assigns forever, as tenants in common."
The plaintiff's counsel contend that Aaron took under the will a conditional fee, determinable upon his dying without issue living at his death, and that the limitation over in that event to the testator's other children, must therefore be considered an executory devise, and consequently not affected by the common recovery suffered by Aaron; or, in other words, they allege that Aaron, according to the terms of the will, in case he had had issue, would thereupon have become immediately vested with a fee simple estate in the land devised to him, defeasible, however, upon his dying without issue living at the time of his death. The birth of issue would have instantly determined his life estate, by enlarging it into a fee; and again in the event of his surviving such issue, and dying without any living at the time of his death, the ulterior devise to the other children of the testator could only have operated as an executory devise; because, as a contingent remainder, it could not take effect after the determinable fee had become vested in Aaron. I must confess that this view of the devise in question when first presented by the counsel for the plaintiff struck me forcibly as having something in it; and it was certainly maintained on their part with great ingenuity. And if Aaron had not suffered the common-law recovery and had had issue, who had died during his life, and he had then died himself without any living at the time of his death, it may possibly be that the ulterior devise of the land to the other children of the testator would have been operative and taken effect as an executory devise, for it has been said that an estate may be devised over in either of two events, so that in the one event the devise may operate as a contingent remainder, and in the other as an executory devise. Doe v. Selby, 2 Barn. & Cress. 926; s. c. 9 Eng. Com. Law Rep. 277; 2 Pow. on Dev. by Jarman, 245.