This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
Date of the devise, children cannot take as devisees, appears to be a mistaken one. Another objection to the rule is that, while it appears in terms to make the construction of the devise dependent on the condition of things existing at the time of the execution of the will, it is also based on the assumption that the testator expects this condition to continue until his death, with the result that, in case of a change of circumstances before that time, as by the birth or death of a child, the intention may be disappointed. Any suggestion, however, that it is the condition of things at the testators death rather than at the time of the execution of the will which should be considered in this connection,85 is unsatisfactory, since it is the testator's intention at the time of executing the will, and not at the time of his death, which controls. The logical view would seem to be that the rule in Wild's case should apply only when the condition as regards the existence or non existence of children is the same at the time of testator's death as at the time of the execution of the will.
- Use of word "issue." The word "issue," though in its popular sense meaning children, is used technically as meaning lineal descendants to any degree, and is so construed except when restrained by the context.86 Since the only way in which legal effect can be given to the word thus indefinitely extended in meaning is to regard it as equivalent to "heirs of the body," it will prima facie receive such construction, and a devise to A and "his issue" will, at common law, ordinarily create an estate tail in A.87 If, however, it appears
85. See 2 Jarman Wills, 1237; Willis v. Foltz, 61 W. Va. 262, 12 L. R. A. (N. S.)283, 56 S. E. 473.
86. 2 Jarman, Wills, 946; In re Cavarly's Estate, 119 Cal. 406. 51 Pac. 629; Gaboury v. McGovern, 74 Ga. 133; Union Safe Deposit & Trust Co. v. Dudley, 104 Me. 297, 72 Atl. 166; Jackson v. Jackson, 153 Mass. 374, 11 L. R. A. 305,
25 Am. St. Rep. 643, 26 N. E. 1112; Drake v. Drake, 134 N. Y. 220, 224, 17 L. R. A. 664, 32 N. E. 114; Wistar v. Scott.105 Pa. St. 200, 214, 51 Am. Rep. 197; Gammell v. Ernst, 19 R. I. 292, 33 Atl. 222.
87. 2 Jarman, Wills 1257; Park-man v. Bowdoin, 1 Sumn. 359, Fed. Cas. No. 10, 763; Allen v. Craft, 109 Ind. 476, 58 Am. Rep. 425, 9
[Sec.26 from the context to be restricted to issue of a certain degree, as children, or to issue existing at a given time, or to have some other meaning inconsistent with an estate tail, it must be taken as a word of purchase, designating the particular devisees.88
In the case of a conveyance inter vivos, as distinguished from a devise, to "A and his issue," according to the common-law rule, stated above, requiring the word "heirs" to create an estate tail, the conveyance' cannot create an estate tail, and consequently the word "issue," in order to have any effect, must be taken as a word of purchase, giving to A and to his issue living at the time undivided interests in the property, or giving to the issue of A a remainder upon a life estate in A.89 Under the common law rule, neither A nor his issue could take a fee simple estate, by reason of the absence of the word "heirs." Under the modern statutes this is not the case, if the word "issue" can be regarded as a word of purchase, but if it is regarded as a word of limitation, it would show an intention not to create a fee simple in A, and the case would consequently appear to fall within the exception, contained in most of these statutes, to the effect that a conveyance without the word "heirs" shall pass all the estate of the grantor except when there is an indication of intention that a less estate shall pass.
N. E. 919; Thomas v. Higgins, 47 Md. 439; Wheatland v. Dodge, 10 Mete. (Mass.) 502; Wright v. Gaskill, 74 N. J. Eq. 742, 72 Atl. 108; Drake v. Drake, 134 N. Y. 220, 224 17 L. R. A. 664, 32 N. E. 114; Harkness v. Corning, 24 Ohio St. 416; Taylor v. Taylor, 63 Pa. St. 481, 3 Am. Rep. 565; Robins v. Quinliven, 79 Pa. St. 333.
88. Gaboury v. McGovern, 74 Ga. 133; Arnold v. Alden, 173 111. 229, 50 N. E. 704; Allen v. Craft, 109 Ind. 476, 482, 58 Am. Rep. 425, 9 N. E. 919; Brisbin v. Huntington, 128 Iowa 166, 5 Ann. Cas. 931, 103 N. W. 144; McPherson v. Snowden, 19 Md. 197; King v. Savage, 121 Mass. 303; Coyle v. Coyle, 73 N. J. Eq. 528, 68 Atl. 224; Palmer v. Horn, 84 N. Y. 516; Carroll v. Burns, 108 Pa. St. 386; Gammell v. Ernst, 19 R. I. 292, 33 Atl. 222.
In determining whether the word "issue" is to be taken in the sense of heirs of the body, the fact that there are issue of the devisee living at the time of the devise is, it seems, immaterial.
In other words, the rule which applies in the case of a devise to A. and his children (rule in Wild's Case) does not apply to a devise to A. and his issue. 2 Jar man, Wills (5th ed.) 1258. But see Clark v. Baker, 3 Serg. & R. (Pa.) 470, per Tilghman, C. J. Porter v. Lancaster, 91 S. C. 300, 74 S. E. 374.
89. Norton, Deeds 426; Doe v. Collis, 4 Term R. 299; Mell-hinny, 137 Ind. 411, 24 L. R. A. 489, 45 Am. St. Rep. 186, 37 N. E. 147; Thomas v. Higgins, 47 Md. 439; Price v. Sisson, 13 N. J. Eq. 168.
- Failure of issue. Where there is a devise to
"A," or to "A and his heirs," with a devise over to other persons in case A dies "without issue," or "on failure of issue," or an equivalent expression is used, if the failure of issue referred to is an "indefinite" failure of issue, then, by a rule of the common law, A will take an estate tail, it being regarded as a limitation to A and his issue. By an "indefinite" failure of issue is meant a failure of issue which may occur at any time in the future, even in the remotest generation, and not a failure at the time of the death of the devisee named, or at any other fixed time, and the presumption at common law is that the failure of issue on which the devise over is to take effect is such an indefinite failure of issue.90 A devise over on failure of issue may, however, even at common law, be shown by the context of the will to refer to a definite failure of issue, and in such a case the estate created will be, not an estate tail, but a fee simple or life estate, according to the form of the limitation to the first devisee, without reference to the devise over.91 And generally, at the present day.