The question which lies at the foundation of this case is what estate Eliza Ann Thornton took in the land which Joseph Thornton specifically devised to her, 'provided that, should the said Eliza Ann die in her minority, and without lawful issue then living, the lands hereby devised shall revert and become part of the residue of my estate hereinafter disposed of.' By this specific devise, Eliza Ann Thornton took an estate in fee, defeasible by an executory devise over. That the estate devised to her, though without words of inheritance, was not an estate for life merely, but was an estate in fee, is not disputed, and is apparent from the description of the subject of the devise as 'that plantation bought of Andrew Porter and John Davis;' from the charge, imposed upon her personally, to pay an annuity out of the rents; and from the devise over in the contingency of her dying under age and without issue then living, thereby implying that her estate would not be terminated by her death after coming of age or leaving issue; as well as from the provision of the statute of Pennsylvania of April 8, 1883, that 'all devises of real estate shall pass the whole estate of the testator in the premises devised, although there be no words of inheritance or of perpetuity, unless it appear by a devise over, or by words of limitation or otherwise in the will, that the testator intended to devise a less estate.' 2 Jarm. Wills, (5th Amer. Ed.) 270, 271, 276, and note; Purd. Dig. (10th Ed.) 1475, § 10.
It is equally clear that, upon her death under age, and without issue then living, her estate in fee was defeated by the executory devise over. When, indeed, a devise is made to one person in fee, and, 'in case of his death,' to another in fee, the absurdity of speaking of the one event which is sure to occur to all living, as uncertain and contingent, has led the courts to interpret the devise over as referring only to death in the testator's life-time. 2 Jarm. Wills, c. 48; Briggs v. Shaw, 9 Allen, 516; Lord CAIRNS in O'Mahoney v. Burdett, L. R. 7 H. L. 388, 395. But when the death of the first taker is coupled with other circumstances which may or may not ever take place, as, for instance, death under age or without children, the devise over, unless controlled by other provisions of the will, takes effect, according to the ordinary and literal meaning of the words, upon death, under the circumstances indicated, at any time, whether before or after the death of the testator. O'Mahoney v. Burdett, above cited; 2 Jarm. Wills, c. 49.
We find nothing in this will to take the case out of the general rule, or to support the argument of the plaintiff in error that the testator intended that the devise over should not take effect if Eliza Ann survived him, or, at least, if she survived his son William. The phrase in the specific devise that, in the prescribed contingency, the land shall 'revert and become part of the residue,' is quite as consistent with the happening of the contingency after the estate has once vested in the devisee, as with its happening in the testator's life-time and before any estate has vested in her. The direction in the residuary clause that the residue shall be divided among all the testator's grandchildren when the oldest living grandchild shall attain the age of 21 years, or at the death of the testator's son William, whichever shall first occur, does not necessarily require a single and final division of the whole residue upon the death of William or the coming of age of a grandchild; for either of those events might happen before the termination of the widow's estate for life in that part of the property, real and personal, which, upon her death, must fall into the residue; and the coming of age of a grandchild might happen during the life of William, to whom also the testator had devised a life-estate in other land.
The provision that Eliza Ann, a natural daughter of the testator's son Nelson, shall be considered a grandchild and share as such in the residue, is coupled with a provision that the specific devise to her, according to an estimate to be made of its value, shall be charged to her as part of her share. The reasonable construction of this provision, as both parties agree, is that the estimate made for that purpose shall be of the value of the land devised to her, not of the value of her defeasible estate in the land. By estimating the land at its full value, she would take an equal share with each grandchild in the whole property, if her estate in the land became indefeasible; and she would lose no more than the land, if her estate was defeated by the contingency prescribed in the specific devise, of her dying in her minority and without issue then living. By the specific devise, it is only upon that contingency that the land devised to her is to 'revert and become a part of the residue;' and, upon a view of the whole will, we are satisfied that the circuit court rightly held that she took nothing in this land under the residuary devise, and that her title under the specific devise was defeated by her dying under age and leaving no issue surviving her. This conclusion accords with that of the supreme court of Pennsylvania in an action of ejectment for the same land, brought in 1874 by John Russell Thornton, the present plaintiff, against Britton, one of the grantors of the present defendant Wilson, in which that court, as appears by opinions not officially reported, but copies of which have been submitted to us, held, and upon petition for reargument reaffirmed, that, 'as to this particular tract of land, the estate of Eliza Ann became extinct, by the terms of the will itself, at the time of her death without issue.'
The other questions in the case depend upon the construction and effect of the statute of Pennsylvania of April 13, 1807, by which, 'when two verdicts shall, in any writ of ejectment between the same parties, be given in succession for the plaintiff or defendant, and judgment be rendered thereon, no new ejectment shall be brought; but when there may be verdict against verdict between the same parties, and judgment thereon, a third ejectment in such case, and judgment thereon, shall be final and conclusive, and bar the right.' Purd. Dig. 535, § 15. This statute, giving a conclusive effect to judgments in ejectment, which they did not have at common law, establishes a rule of property concerning the title in land within the state of Pennsylvania, and binds the courts of the United States as well as the courts of the state. Miles v. Caldwell, 2 Wall. 35; Blanchard v. Brown, 3 Wall. 245; Equator Co. v. Hall, 106 U.S. 86; S.C.. 1 SUP. CT. REP. 128. By the clear intention of this statute, as by its uniform interpretation by the supreme court of Pennsylvania, it requires two concurring verdicts and judgments thereon in a common-law ejectment between the same parties, upon the same title, to conclude the right. The words 'the same parties' of course include their heirs or assigns. Evans v. Patterson, 4 Wall. 224; Drexel v. Man, 2 Pa. St. 267. An award of referees has been made by the legislature, and a judgment, after full hearing upon general demurrer or case stated, has been deemed by the court equivalent to a verdict, (Ives v. Leet, 14 Serg. & R. 301; Mercer v. Watson, 1 Watts, 330;) but in Mercer v. Watson the court, after full consideration of the terms of the statute and of the reasons for its passage, concluded that 'the legislature did not intend to bar the party from bringing a new action of ejectment for the same land, upon the same title, until after two decisions should be had against him upon a full view and consideration of the whole of his case, and all the circumstances connected with it which he might think material, either by two judgments of a court of competent jurisdiction rendered upon general verdicts, special verdicts, cases stated, or in cases of demurrer to the pleadings or the evidence,' (1 Watts, 344;) and in Treaster v. Fleischer, 7 Watts & S. 137, it was adjudged that, although the statute did not expressly say so, the former verdicts and judgments must have been on the same title, because, in the words of Chief Justice GIBSON, 'it certainly could not have been intended that a title should be barred by adjudication without having been adjudicated.' 7 Watts & S. 138. To the same effect are Kinter v. Jenks, 43 Pa. St. 445; Chase v. Irvin, 87 Pa. St. 286; Barrows v. Kindred, 4 Wall. 399; and Merryman v. Bourne, 9 Wall. 592.
The special verdict in the former action in the circuit court had no greater effect than a general verdict, and could not, consistently with the statute, be held to be of itself conclusive upon the general question of title, or upon any question necessarily involved in the determination of the title. The verdict and judgment in the former action in the court of common pleas were incompetent evidence under the statute, because, as the bill of exceptions in the present case shows, they did not pass upon the question whether Eliza Ann had an indefeasible title in the land, but only upon the point that her husband had a title by the curtesy therein, whether her title was defeasible or indefeasible. In Pennsylvania, birth of issue is not necessary to create an estate by the curtesy. Purd. Dig. 806, § 4; Thornton v. Krepps, 37 Pa. St. 391.
Judgment affirmed.
Notes edit
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
Public domainPublic domainfalsefalse