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 .
90. 2 Jarman, Wills, 1320; 4 Kent, Comm. 276; 2 Sharswood & B. Lead. Cas. Real Prop. 98 et seq.; Chadock v. Cowley, Cro. Jac. 695, Brice v. Smith, Willes, 1; Barber v. Pittsburgh, Ft. W. & C Ry. Co., 166 U. S. 83 41 L. Ed. 925; Turrill v. Northrop, 51 Conn. 33; Richardson v. Richardson, 80 Me. 585, 16 Atl. 250; Allen v. Trustees of Ashley School Fund, 102 Mass. 262; Morehouse v. Cotheal, 21 N. J. L. 480; Taylor v. Taylor, 63 Pa. St. 481; Nes v. Ramsay, 155 Pa. St. 628, 26 Atl. 770; Burrough v. Foster, 6 R. I. 534.
For a large number of citations to the same effect see 17 Am. & Eng. Encyc. Law (2nd Ed.) 558; Words and Phrases, sub. verb. Die without issue.
91. 2 Jarman, Wills, 428; Pells v. Brown, Cro. Jac. 590, Roe v. Jeffery, 7 Term R. 589, Whitcomb the tendency seems to be to lay hold of any expression in the instrument to show that the failure of issue referred to is not indefinite, but rather such as may occur at the first taker's death.92 Accordingly, in some cases, any presumption that an indefinite, rather than a definite, failure of issue is intended, has been regarded as rebutted by the fact that the limitation over was in favor of the "survivor" or "survivors" of several devisees92a v. Taylor, 122 Mass. 243; Burrough v. Foster, 6 R. I. 534; Rothwell v. Jamison, 147 Mo. 601, 615, 49 S. W. 503; Beckley v. Riegert, 212 Pa. 91, 61 Atl. 641.
92. 17 Am. & Eng. Enc. Law (2d Ed.) 560 et seq.; 2 Jarman, Wills, 1320, Am. notes, where Mr. Bigelow says: "It is apprehended that at the present day the construction which refers the words in question prima facie to the death of the first taker will, not only in the case of personalty, but also of realty, be favored generally in this country and adopted upon slight indications of intention, in so far as the courts find themselves unfettered by binding authority."
See Strain v. Sweeney, 163 111. 603, 45 N. E. 201; McClintic v. McClintic, 259 Pa. 112, 102 Atl. 416.
The courts will usually be more ready to construe the instrument as intending an indefinite failure of issue in the case of real prop erty than in that of personal property (2 Jarman, Wills, 1326; 4 Kent, Comm. 282, note a; 17 Am. & Eng. Enc. Law (2d Ed.) 561. In re Nice's Estate, 227 Pa. 75, 75 Atl. 1025) since a fee tail cannot be created in personal property, and the gift over on an indefinite failure of issue would, in the case of such property be invalid under the rule against perpetuities. So it has been held that a limitation over if the donee die "without leaving issue," while it presumptively means an indefinite failure of issue in the case of real property, in the case of personal property it presumptively means a definite failure of issue; and this, even when the two classes of property are disposed of by the same gift, so that the donee may take an estate tail in the real property, and a life interest merely in the personalty. Forth v. Chapman, 1 P. Wms. 663, The distinction as to the effect of the word "leaving" in gifts of realty and personalty, as stated in Forth v. Chapman, supra, was adopted in England in numerous-cases (2 Jarman, Wills, 1324), and the rule of that case as to its effect in the case of personalty has been generally adopted in this country (2 Jarman, Wills, 1320, Bigelow's notes).
If a devise over is contingent upon the death of the first devisee "under the age of twenty-one, and without issue," a definite, and not an indefinite, failure of issue is intended. 2 Jarman, Wills, 1327, 17 Am. & Eng. Enc. Law (2d Ed.) 566.
92a. Jackson v. Chew, 12 Wheat, (U. S.) 153, 6 L. Ed. 583; Abbott v. Essex Co., 18 How. (U. S.) though in others a contrary view was adopted.92b In some states, a definite failure of issue, a failure at the time of the death of the first taker, is always presumed to be intended, unless the contrary appears.93 And in England and a number of the states there is a statutory provision to that effect, sometimes applying, in terms, to wills only, and not to deeds.94
A limitation over on an indefinite failure of issue has been regarded as operating to enlarge to a fee tail what would otherwise be an estate for life in the first devisee, as well as to reduce to a fee tail what would otherwise be an estate in fee simple. That is, at common law, a devise over in favor of B on A's death without issue, operates, prima-facie, to make A's estate an estate in fee tail when the previous limitation in favor of A is in terms for life as well as when it is in terms in favor of him and his heirs.95 This is by reason of the implica202, 15 L. Ed. 352; Moody v Walker, 3 Ark. 147; Summers v. Smith, 127 111. 645, 650, 21 N. E. 191; Brightman v. Brightman. 100 Mass. 238; Groves v. Cox, 40 N. J. L. 40; Anderson v. Jackson, 16 Johns, (N. Y.) 382, 8 A. M. Dec. 330; Cutter v. Doughty, 23 Wend. (N. Y.) 513, rev'd 7 Hill (N. Y.) 305; In re Bedford's Appeal, 40 Pa. St. 18; Presley v. Davis, 7 Rich. Eq. (S. C.) 105, 62 Am. Dec. 396; Mendenhall v. Mower, 16 S. C. 303.
92b. Chadock v. Cowley, Cro. Jac. 695; Caulk's Lessee v. Caulk 3 Pennew. (Del.) 528, 52 Atl. 340; Richardson v. Richardson, 80 Me. 585, 16 Atl. 250; Hoxton v. Archer, 3 Gill & J. (Md.) 199; Caskey v. Brewer, 17 Serg. & R. (Pa.) 441; Bells v. Gillespie, 5 Rand (Va.) 273.
93. St. John v. Dann, 66 Conn. 401, 34 Atl. 110; Klingman v. Gilbert, 90 Kan. 545, 135 Pac. 682;
Sale v. Crutchfield, 8 Bush, (Ky.) 636; Bradshaw v. Williams, 140 Ky. 160, 130 S. W. 985; Schnitter v. McManaman, 85 Neb. 337, 27 L. R. A. (N. S.) 1047, 123 N. W. 299; Niles v. Gray, 12 Ohio St. 320; Anderson v. United Realty Co., 79 Ohio St. 23, 51 L. R. A. (N. S.)477, 86 N. E. 644.
See Hertz v. Abrahams, 110 Ga. 707, 50 L. R. A. 361, 36 S. E. 409; Gannon v. Allbright, 183 Mo. 238, 67 L. R. A. 97, 105 Am. St. Rep. 471, 81 S. W. 1162; Staton v. Godard, 148 N. C. 434, 62 S. E. 519; Smith v. Piper, 231 Pa. 378, 80 Atl. 877; Daniel v. Lipscomb, 110 Va. 563, 66 S. E. 850; In re Korn's Will, 128 Wis. 428, 107 N. W. 659.
95. Willis v. Bucher, 3 Wash. C. C. 369, Fed. Cas. No. 17,769; tion of a devise by way of remainder in favor of the heirs of the body of A, calling for the application of the Rule in Shelley's case.95a
Where, as is the case in most of the states, a fee tail is changed into a fee simple, or into a life estate with remainder thereon,96 it might be anticipated that a gift over on an indefinite failure of issue, which would at common law make the prior gift one in fee tail, would create a fee simple or life estate accordingly in favor of the first donee, and there are a number of decisions to that effect.97 In one state however, it was considered that, by reason of the statute changing an estate in fee tail into an estate in fee simple, the common law construction was inadmissible, since it would make the gift over invalid as too remote,98 and in another the fact that an estate in fee tail could, by reason of the statute, not be created, has been viewed as a reason for regarding the failure of issue intended as definite and not indefinite.99
In some states, a gift over on death without issue is regarded as prima facie substitutional in character, and as intended to operate only in case of death beAlbee v. Carpenter, 12 Cush. (Mass.) 382; Nes v. Ramsay, 155 ley v. Jones, 13 Grat. (Va.) 289; In re Christy's Estate, 52 Pa. Super. Ct. 360; See Nott v. Fitz-gibbon, 107 Tenn. 54, 64 S. W. 26; Jarman, Wills, 521, 1185.
95a. Post Sec.Sec. 148-155.
In a deed, according to the English cases, the presence of a limitation over on failure of the issue of the grantee, does not, even though an indefinite failure of issue is intended, operate to cut down to an estate in fee tail an estate previously given to the grantee and his heirs. Olivant v. Wright, 9 Ch. Div. 646; Idle v. Cook, 1 P. Wms. 70. But see Morgan v. Morgan, L. R. 10 Eq. 99.
96. Ante Sec. 24.
97. Hertz v. Abrahams, 110 Ga. 707, 50 L. R. A. 361, 36 S. E. 409; Kolmer v. Mills, 270 111. 20, 110 N. E. 407 (semble); Huxford v. Milligan, 50 Ind. 542; Morehouse v. Cotheal, 21 N. J. L. 480, 22 N. J. L. 430; Arnold v. Muhienberg College, 227 Pa. 321, 76 Atl. 30; McCullough v. Johnetta Coal Co., 210 Pa. 222, 59 Atl. 984; Hill v. Burrow, 3 Call. (Va.) 342.
98. Dennett v. Dennett, 43 N. H. 499.
As to remoteness see post Sec.Sec. 179-189.
99. Summers v. Smith, 127 111. 645, 21 N. E. 191.
Fore testator's death,1 a rule of construction which is obviously calculated considerably to restrict the operation of such a clause as giving rise to an estate in fee tail or its statutory equivalent. Such a rule of construction, in so far as it may be based on the analogy of a gift over in case of death alone,2 seems questionable.3 When there is a gift to A for life, remainder to B, with a gift over to C on B's death without issue or children, death during the life of A would in some states be regarded as prima facie intended.3a