Heffner against Knepper, 6 Watts 18

The opinion of the Cotut was delivered by Sergeant, — The question argued in this case is one which has frequently been discussed and decided. The testator directs his real estate to be equally divided, in quantity and quality, amongst his six sons. This, by virtue of the word estate, would carry the fee. He afterwards declares, that if any of his sons or daughters should die without a lawful issue, then is such a one’s portion to be equally divided amongst then’ living brothers and sisters or their heirs.

This limitation over upon a dying without lawful issue, reduces the fee to an estate tail; and the whole devise is then of an estate tail with a remainder in fee in the brothers and sisters. The attempt in this, as in the former instances, is to construe the limitation over to be an executory devise, by considering the dying without issue, the same as dying without leaving issue. But the construction with us has always been, that the words dying without issue refer to an indefinite failure of issue. Thus, in Haines v.

Wilmer, 2 Yeates 400, the testator devised to his son a tract of land to him, his heirs, and assigns forever, he paying to his sister 100 pounds, and to his mother 4 pounds per annum, during her widowhood; and after similar devises to his other children, added, and likewise it is my will, that if either of my children should die without issue lawfully begotten, then each and every of their respective shares shall be equally divided amongst the survivors. Great stress was laid on the word, survivors, and the case of Pells v. Brown, Cro. Jac. 590, relied on as an authority for construing it an executory devise.

But all the judges agreed, that no case decided, on wills of real estate, that the words were to be restricted to a dying without issue at the time of the death, and that the word, survivors, had often been ruled to make no difference. The subsequent cases run in the same channel without deviation. Clark v. Baker, 3 Serg. & Rawle 470; Gause v. Wiley, 4 Serg. & Rawle 409; Caskey v. Brown, 17 Serg. & Rawle 441. The last case was in 1835, Sharp v. Thompson, 1 Wheat. 139, which is substantially the same as Haines v. Wilmer, and they cannot be distinguished from the present case.

These decisions may be considered as having established a rule of property, under which many titles to real estate are held, and which it is of the first importance should be preserved uniform and stable, as well- for the security of property held under it, as for furnishing a guide to the ascertainment of title in future. Judgment affirmed.