Will-Executory devise-" Dying without issue" -Depnite failure of issue-Alternative tations-Testamentary intention-Trust, when active. dren of my late brother, Benjamin C. Wilcocks, namely, Mary W. Wilcocks and Helen J. Wilcocks, for them, the heirs, executors, administrators, and assigns; and I direct that the trustees shall hold the same, capital and income, until their arrival severally at the age of twenty-one years, and that no part of the same shall be expended for them, or for their use, during minority, unless, in the opinion of my trustees, it shall be necessary to lay out for them any portion of the income, in which case I leave it at their discretion to do so; and when they arrive severally at twenty-one years of age, the income shall be paid to them quarterly, or at other convenient periods, by my trustees, so that the same may be, share and share alike, for their equal and sole and separate use, and not subject to the debts or control of their husbands, in case of their marrying; and should either of them die without issue, then the share of the deceased shall go, but still subject to the shall cease and determine." trust, to the survivor, her heirs, executors, administrators or assigns; and should they or either of them die leaving, limi-issue, then my trustees shall hold the estate so left for the uses which may be declared by them, or either of them, by last will and testament, or writing in nature thereof; and should both of them die without issue, then I give, E. by will gave certain real and personal estate to C. to devise, and bequeath all the estate included in this, the hold in trust for M. and H., her nieces, "for them, their residuary clause of my will, to my nephew, Charles Inheirs, executors, administrators, and assigns," with a direc-gersoll, to him, his heirs, executors, administrators, and tion for accumulation during their minority (unless it assigns, free and clear of this trust, which in that event should be necessary to lay out a portion of the income for their support), and to pay the income equally to them after their majority, for their sole and separate use. And should either of them die without issue, then the share of the deceased was given, subject to the trust, to the survivor, her heirs, executors, administrators, and assigns; and should they or either of them die leaving issue, then to hold the estate so left for the uses which may be declared by them or either of them by last will and testament; and should both of them die without issue, then the entire estate was given to C., his heirs, executors, ad ministrators, and assigns, free and clear of the trust. Heid, that by the words "die without issue" the testatrix intended a definite failure of issue, i. e., upon the death of both M. and H., and that the trust was an active one, because necessary to protect the contingent estate of C. Helen J. Wilcocks died, May, 1868, intestate, and without issue. Mary W. Wilcocks married A. D. Campbell in 1870. And it was proved that she did not contemplate marriage in 1863, when the testatrix died. By deed, dated Dec. 17th, 1874, C. Robbins and Sarah W. Wilcocks granted and released unto Mrs. Mary W. Campbell all their interest, present and expectant, in the undivided moiety of the real and personal estate of the testatrix, under the above devise. Joseph R. Ingersoll died Feb. 20th, 1868, and John M. Thomas was appointed trustee in his place. The bill prayed for (1) an account and pay Appeal from the Common Pleas No. 2, of Phil- ment over of all the personal property; (2) a adelphia County. conveyance of the real estate; (3) general relief. Bill in equity by A. D. Campbell and Mary W. (formerly Wilcocks), his wife, against C. Ingersoll and J. M. Thomas, trustees under the will of Elizabeth Wilcocks, deceased, to have the trust declared void, and a conveyance and transfer of the property, real and personal, held by the trustees under the will, made to the complainant, Mary W. Campbell, discharged of the trust. The bill, answer, replication, and proofs disclosed the following facts: Elizabeth Wilcocks died, unmarried, in 1863, seized and possessed of certain real and personal estate, leaving a will, dated Feb. 5th, 1848, and two codicils (the latter executed in 1862) which confirmed the will, making no changes. The material clause of the will is as follows: The Court entered a decree for an account and conveyance, according to the prayer of the bill, MITCHELL, J., delivering the following opinion : The plaintiff, Mrs. Campbell, formerly Mary W. Wilcocks, being over the age of twenty-one years, and having acquired the entire interest of her sister, Helen Julia Wilcocks, now files this bill against the trustees under the will of Mrs. Elizabeth Wilcocks, for an account and payment over of all the personal property and a conveyance of the real estate. (1) The first ground of the bill is, that the trust sought to be created for the sole and separate use of the complainant is void. The evidence reported by the examiner leaves no doubt "I give and bequeath and devise to J. R. Ingersoll and that at the time of testatrix's death the complainC. Ingersoll, their heirs and assigns, all the rest, residue, and remainder of my estate, real and personal, which I ant was a minor, not in contemplation of marnow possess, or may die possessed of, in trust for the chil-riage with any one. It is therefore clear, upon the settled law of Pennsylvania, that this trust is | On the contrary, she joins the real and personal inoperative. (McBride v. Smyth, 4 Sm. 245.) estate together in the same devise; gives them (2) But it is contended by the trustees that both in the first instance to her nieces in fee, and the general trust in them must be upheld to save then subjects the fee to certain restrictions as to the devise over in the last clause of the para-survivorship in case of either dying without issue, graph above quoted, to Charles Ingersoll, on de- and to powers of appointment in case of dying fault of issue of the two cestuis que trustent, the with issue, all of which show clearly that her complainant and her sister. actual, as well as her legal intention was, that her property, both real and personal, should continue in the line of her nieces and their issue as long as any issue of either survived, and only after the indefinite failure of issue of both was it to go to her secondary class or beneficiaries, her nephew and his heirs. We are therefore of opinion that by the will of Miss Wilcocks her nieces took an estate in fee in the realty and an absolute estate in the personalty; that the devise over to Charles Ingersoll is void for remoteness; that the only trust expressed in the will is inoperative, because no marriage was in contemplation at the time it took effect; and that by the conveyances set forth in the bill the whole estate of the two nieces appears to have become vested in the complainant. In the construction of this will it is first to be observed that the general intention of the testatrix appears to have been to give her nieces an| estate in fee. The devise is in trust "for them, their heirs, executors, administrators, and assigns." Primarily, therefore, their estate is a fee simple, and although it may be cut down to a more limited estate by subsequent restrictions, yet these must be read in connection with this first general gift. The next sentence then proceeds: "Should either of them die without issue, then the share of the deceased shall go to the survivor, her heirs," etc. It is a long-settled construction that the words "die without issue" import an indefinite failure of issue (Eichelberger v. Barnitz, 9 Watts, 450), and therefore the devise in the There must, therefore, be a decree for an acpresent case would, at common law, have created count and payment of the personalty and a conan estate tail in the testatrix's nieces, with cross-veyance of the realty as prayed. remainders in fee. (Lapsley v. Lapsley, 9 Barr, 130.) [See report of the case in the Court below, 2 WEEKLY NOTES, 13.] Since the Act of April 27th, 1855, the devise over after a fee is no longer good as a remainder, it must take effect, if at all, as an executory devise. The final devise over, in the present case is, "should both of them (the nieces) die without issue, then I give," etc. This, being a gift over after a common law fee tail, which, by virtue of the Act of 1855 has become a fee simple, is clearly too remote to be good, even as an exe-trust discharged of the trust. cutory devise. In Nicholson v. Bettle (7 Sm. 386), the devise was sustained upon the express ground that it was limited after a definite failure of issue, the language of the will in that case being "die without leaving lawful issue surviving." And Judge STRONG says, the devise is "not too remote, for it must take effect, if at all, within a life r lives in being." The trustees filed an account, and a decree was entered ordering them to pay over the principal and income in their hands and to convey the real estate. The defendants appealed, assigning for error, inter alia, the construction by the Court of the words "dying without issue" to be an indefinite failure of issue, and the decree for an account and conveyance to the cestui que There can be no doubt that the Act of 1855 governs this case, as the testatrix died after its passage. (Haldeman v. Haldeman, 4 Wr. 29.) But, besides this, the will was expressly republished in 1862, and must be read as of that date. Our attention has been called in the brief submitted by the respondents to the distinction between devises of realty and gifts of personal estate. It is true, that in gifts of personalty the Courts have frequently been astute to sustain a limitation over where it was necessary to carry out the actual intention of the testator. But we are unable to see any sufficient evidence of such actual intent on the part of the present testatrix. The case was argued February 7th, 1877. A re-argument was subsequently ordered, and the case was again heard February 4th, 1878. A. Sydney Biddle and R. C. McMurtrie, for the appellants. The question in this case is whether a limitation over tacked upon a fee is an executory devise or a contingent remainder. It cannot be a contingent remainder unless the devise in fee is reduced to an estate tail. A fee may be so reduced by appropriate words. Was it done in this case? The effect of the limitation turns upon the construction to be given to the words dying without issue." Is it a limitation after a definite or an indefinite failure of issue? The intention of the testator is the cardinal rule in the interpretation of wills, and the word "issue" is to be construed as a word of purchase or limitation as will best effectuate the intention of the testator as gathered from the entire instrument. Taylor v. Taylor, 13 Sm. 481. The limitation is after a gift in fee simple. It must be construed, to sustain the Court below, as narrowing the original gift to the eldest, and as destroying the right of all the other children to participate. The trust by express words is to continue until it is ascertained that by reason of there being issue upon the death of Mrs. Campbell, the limitation over to Charles Ingersoll cannot take effect. Is the word "issue" to be construed in such a sense as to make the limitations possible, or is it to be read in such a way as to make them all nugatory and turn the whole will into a devise in fee to the nieces? The provision of the will can take effect as an executory devise, but not as a contingent remainder. The first construction supports, the latter destroys, the will. The words "dying without issue" by the established rule of construction in bequests of personalty refer to issue living at the death of the first taker. Hagerty v. Albright, 2 Sm. 274. Myers's Appeal, 13 Wr. 111. Eichelberger v. Barnitz, 17 S. & R. 295. The power of appointment if either dies leaving issue shows clearly that issue then living was intended. Keene's Appeal, 14 Sm. 268. Target v. Gaunt, 1 Peere Williams, 432. A limitation over by will to survivors in being, Moffat v. Strong, 10 Johns. 16. Ranelagh v. Ranelagh, 2 M. & K. 441. Doe et al. v. Frost, 3 B. & A. 546. If the limitation is valid, as we contend, the trustees must continue to hold the estate for the protection of all ultimate limitations. S. S. Hollingsworth, for the appellees. The primary intention of the testatrix was to give each of her nieces an estate in fee simple. She then makes a trust for accumulation during minority, and for their separate use, if they marry. The gift over on the death of either niece without issue to the survivor in fee, and if both die without issue to C., reduces the estates given the nieces to fees-tail with cross-remainders in fee between them, and an ultimate remainder in fee to C. son without issue unexplained by the context, and whether applied to real or to personal estate, are construed to import a general indefinite failure of issue, i. e., a failure or extinction of issue at any period. 2 Jarman on Wills, *418. Eichelberger v. Barnitz, 9 Watts, 447. The Act of 27 April 1855 (P. L. 368) has not Second. There is nothing in the context of the present will to alter this primary signification of the technical words "die without issue." The gift over to the "survivor" in fee does not have such an effect. Hawkins on Wills, *210. Caskey v. Brewer, 17 S. & R. 441. The gift over "subject to this trust" has no such effect, because it is consistent with an intention to provide for the contingency of such a gift vesting in possession during the minority or coverture of the survivor. The power of appointment given to each in the event of either dying "leaving issue" has not such an effect. Simmons v. Simmons, 8 Sm. 22 (which overrules The reason being that, the power being a general one, there is no implication of a gift to a particular class of issue on failure of its exercise, and consequently no implication to narrow the signifiance of the words "die without issue" in which the limitation over is to take effect. Third. The construction contended for by appellants defeats the intention of the testatrix. If the niece who died first had left issue, and her sister had then died without issue, neither the issue of the niece dying first nor C. would have taken any estate or interest whatsoever in the half of the property belonging to the niece who had died last without issue. The issue would have taken nothing, because the executory devise in the event of their aunt dying without issue was to their mother, and not to them, and their mother being dead, the contingency on which the devise was to take effect, to wit, her survival of her sister, had not and could not occur. The executory devise to C. would be defeated, First. Words referring to the death of a per- because it was contingent on both nieces dying without issue at their death, and one had left | (Fearne on Cont. Rem. 373; Luddington v. issue. Again, if the niece dying first had left issue and that issue had subsequently failed, and then the surviving niece had died without issue, C. would have taken nothing, because the executory devise to him could only take effect if both nieces died without issue living at their death, and one having left issue at her death, the contingency could never occur. Hawkins on Wills, *203, note I. Powell v. Howells, L. R. 3 Q. B. 654. Kime, I Ld. Raym. 203.) This is precisely, we think, what the testatrix meant in this case, and there was nothing unlawful in it. She meant to give her two nieces a fee simple, but subject to the contingency that if they should both die without issue living at the death of the survivor then over to her nephew, Charles Ingersoll, in fee. It is undoubtedly true that if she had merely provided that on their death "without issue, or without leaving issue," the devise over should take effect, the law would have construed it to be an indefinite failure of issue, and their estate would thereby have been reduced to an estate tail. But The construction, then, of the appellees is the words "dying without issue, or without leavnecessary to carry out the conceded intention of the testatrix. ing issue," may always be shown by other parts of the will to have meant "issue living" at the death of the first taker. Precisely the reasons given above for construing the failure of issue to be an indefinite failure of issue, were given by TILGHMAN, C. J., in leading case which recognized the general rule in In Eichelberger v. Barnitz (9 Watts, 450), the Clark v. Baker (3 S. & R. 470). And on page Pennsylvania, the exceptions are acknowledged 480 he puts a case which might have occurred by Mr. Justice SERGEANT, in the opinion of the under the present will. If the niece dying first had left issue, and that issue had failed during the time at which the devise over is to take effect Court, and among them is enumerated, "when the lifetime of the other niece, the latter would is expressly or impliedly limited to a particular not have taken their share, unless the words period, within a life or lives in being and twenty"without issue" mean an indefinite failure of one years after." (See also Taylor v. Taylor, 13 issue; for, if an executory devise, she could only Sm. 481.) take if her sister had died without issue living at her death; so that in this event, also, the intention of the testator would have been defeated under the construction of the appellees. In the will before us these words are found three times in the same paragraph, within a few lines of each other. In the first two, they are evidently used in the sense of a definite failure of issue. "Should either of them die without issue, May 6, 1878. THE COURT. Several import- then the share of the deceased shall go, but still ant and interesting questions have been raised subject to this trust, to the survivor." "Should on this record, which we do not consider it neces- they or either of them die leaving issue, then my sary to discuss and decide, as we are of opinion trustee shall hold the estate so left for the uses that it appears upon the will of Elizabeth Wil- which may be declared by them, or either of cocks that by the words "die without issue" she them, by last will and testament, or writing in meant a failure of issue at a definite period, to nature thereof." It is very evident that in both wit, the death of both her nieces. Nothing cer- these cases the testatrix could not have contemtainly is better settled than that the intention of plated an indefinite failure of issue at some future a testator, if not contrary to law, shall be carried period, however remote. When, therefore, she out in the disposition he may make of his prop- concludes her limitation with the same words, erty after death. There are many things which should both of them die without issue," the he cannot do, however clearly he may intend it. inference is irresistible that she used the words in He cannot create a fee and clog the power of the same sense that she had done before. This alienation or relieve it from liability for debts. principle of construction was adopted and apHe cannot create a perpetuity by an executory plied in Seibert v. Butz (9 Watts, 490), and indevise after an indefinite failure of issue, or at deed is so reasonable that it needs no citation of any other future period, which may not be until authority to sustain it. after a life or lives in being and twenty-one years. But he may give an estate in fee, subject, on certain contingencies, to be reduced to an estate for life with a remainder over, but if those contingencies do not happen, the first gift in fee to stand. It is but an alternative limitation, and such limitations have been long recognized as valid. Such being the state of the limitations upon the proper construction of this will, it is clear that the trust created by the testatrix was a living and active trust, important, if not absolutely necessary, to preserve the estate for the ultimate devisees. If it was personal estate it was important to prevent unwise investments, and to relieve the first takers subject to the contingencies from being under the necessity of giving security, and, if it was real estate, to preserve it from waste and dilapidation. It would seriously impair the right of disposition in the owner of property, if he could not by the appointment of trustees, in whom he had confidence, make provision against such consequences. The fact that the testatrix intended also, as one of the objects of the trust, to create sole and separate estates for her nieces, then being unmarried and not in contemplation of coverture, though that object be considered inoperative and void, does not invalidate the trust, if for other reasons it ought to be supported. Decree reversed, and now it is ordered and decreed that the bill be dismissed with costs. The costs of this appeal to be paid by the appellees. Opinion by SHARSWOOD, J. Error to the Common Pleas of Schuylkill County. These were four petitions for writs of mandamus. The petition at the relation of Tower against Thompson set forth: (1) That by the Act of April 7, 1869 (P. L. 738), commissioners were appointed to view and lay out a State road from a point in Porter township to Williamstown, in Dauphin County; that it was provided (section structed by the township supervisors at the ex3d) that the road should be opened and conpense of the owners or occupiers of lands through and adjacent to which the road should be laid Jan. '78, 178, 179, 177, 176. kill County. Commonwealth of Pennsylvania ex rel. Road taxes-Acts of April 7, 1869, and Febru- should be compelled to contribute any sum greater than the road taxes assessed at the rate existing in the township; that by a supplementary Act (Act of February 27, 1872, P. L. 171) the commissioners were authorized and directed, in the place of the township supervisors, to open and construct the road; that by these Acts (section 3d of Act of 1869 and Act of 1872) a certain portion of the road taxes levied and assessed were set apart for the payment of expenses in opening the said road and for the payment of certificates, authorized to be issued by the said Acts of Assembly to the owners of lands advancing money to defray the said expenses; and that the collector of road taxes was also directed to credit the road taxes due upon any of the said lands upon the said certificates when so requested Under the Act of April 15, 1834, the township super- by the owners. (2) That the said commissionvisors must be joined as defendants in suits brought by those claiming the right of payment out of moneys col-ers in discharge of their duties had laid out the State road, and to defray the expenses had, under the said Acts of Assembly, borrowed money upon the certificates. (3) That a number of these certificates, amounting to $25,000 in value, were held by the relator. (4) That Thompson, the respondent, as collector of road taxes in Porter township, had collected a large amount of taxes applicable, under the Acts of Assembly, to the payment of these certificates, which it was his duty so to pay; but which, after demand made upon him by the relator, he had refused to lected from road taxes. The road Under Acts of Assembly of April 7, 1869, and February 27, 1872, commissioners were appointed to lay out a State road, to be constructed at the expense of adjacent owners, and were directed, in place of the supervisors, to construct and open the road and to issue certificates of indebtedness to persons advancing money towards the construction, to be paid from the road taxes. was constructed and the certificates were issued. Afterwards those portions of these Acts, by which the road was to be built at the expense of the adjacent owners, were repealed. The holders of the certificates applied for writs of mandamus against the treasurer and collector of the township and the county treasurer to enforce the pay-pay. The relator therefore prayed for a writ of mandamus to compel payment in the premises. The petition at the relation of Tower against ment of these certificates: Held (affirming the judgment of the Court below), that |
