PEARSOL· ''!1. MAXWELL.
PEARSOL et at v. MAXWELL et al. (Circuit Court, W. D. Pennsylvan.la. Marcb 2, 1895.)
CONSTRUCTION OF WILL-EsTATES TAIL'-BARRING REMAINDER.
A testator devised land to E., "to have and to hold the same to the said E. and the heirs of her body, provided, however, that the children ot the said K do not marry or be given in marriage to any of the children of my uncle J., or to any of his grandchildren, or great-grandchildren, or other lineal descendants of the said J.; but should any of the chilaren of the said E. marry any of the descendants of the said· J., the share 3f: my estate of he, she, or they so marrying as. aforesaid shall go to and oeCOIlla vested in the other child or of the said E., share and share alike"'; and the testator charged E. with the payment of a legacy of $2,000: Helil, that E. took an estate tail, which became converted into a fee simple absolute by her deed executed agreeably to the Pennsylvania statute for the barring of estates tail.
This was an action of ejectment brought by William S. Pearsol and others against George C. Maxwell and others. In pursuance of a written stipulation, the case was tried by court without the in' tervention of a jury. The following facts were found by the cou!'t:
(1) This action of ejectment is for the recovery of the undivided part of a tract of land situate in Luzerne township, Fayette county, Pennsylvania. (2) The plaintiffs and the defendants respectively claim title to said land under the will of Samuel N. Crawford, who dip-d in the year 1853, seised in fee of said land, having first made his last will, dated May l5, 1853, which will was duly probated after his death, namely, on July 13, 1853, and is recorded in said county of Fayette in Will Book No.3, page 86. Said will contains the following clauses: "Item. I give and devise. to my cousin Edith Pearsol, daughter of Benjamin Sharpless, all that portion of the farm upon which I now reside, and bounded and described as follows, viz.: Beginning on the Monongahela river where my lands adjoin those of Joseph Crawford's and said river; thence north 74°, west 30 perches; south 83°, east 75 perches, to lands of William Crawford; thence south 14°, east 207 perehes; thence north 89%:, east 134 perches, to a post; thence along the lands of Joseph .crawford north %:, west 205 perches, to the place of beginning, on the Monongahela river aforesaid,-to have and to hold the same to the said Edith Pearsol and the heirs of her body, provided, howl'ver,'that the children of the said Edith Pearsol do not marry or be given in marriage to any of the children of my uncle Joseph Crawford, or to any of his grandchildren or great-grandchildren, or to any other lineal descendant of the· said Joseph Crawford; but should any of the children of the said Edith Pearsol marry any of the descendants of the said Joseph CraWford, of my estate of he, she, or they so marrying as aforesaid shall go to and become vested in the other child or children of the said Edith, share and share alike. The part of my farm above devised to Edith Pearsol contains one hnndred and seventy-five acres by a survey thereof made by James Moffit. It is my will and desire and I do hereby bequeath to the said Edith Pearsol all my household and kitchen furniture, and that she shall pay to my cousin Benjamin W. Crawford, Sr., the sum of two thousand dollars within five years after my decease, without interest on the same." Said will (prout) is made part of this finding. (3) By deed dated June 10, 1858, William Pearsol and Edith, his wife (the above-named devisee), conveyed the said tract of land to Chl'lstoplier Cox, his heirs and assigns; the said grantors declaring in said jeed tlmt it was_ their intention by said deed forever to debar any estate tail in possession, reversion, or remainder, which the said Edith had in the said land, ·"hich deed was executed, acknowledged, and recorded agreeably to the provisions of the act of assembly of January 16, 1799, for the barring of tail. (4) The defendants (or some of them) have succeeded to and lire invested with the
title of Christopher Cox by virtue ot sundry deeds recited in their abstract of' title (prout). (5) Edith'PearSoldfed lnApril, 1893. Her' husband died previously. (6) Tlle land which is described in the Writ ot ejectment is the salDe' devised in and by the alJove-quoted provisions of the will of Samuel N. Crawford. (7) The plaintiff William S. Pears()l is a son of Edith Pearsol, and the other plaintiffs are her grandchildren, being children of deceased children of Edith. If entitled to recover at all in this action, the plaintiffs would be en· titled to. ·recover the undiVided one-half Part of said land. (8) At the date of the will of Sllmuel N. CraWford ,and at the time of his death, seven childl'ell-three sons 8,nd four daug1).ters-of Edith Pearsol were liVing. There were none after born.. (9) None of the children of Edith Pearsol married in violation cf the above:qlloted provisions of the will of Samuel N. Crawford.
Edward,'rOampbell and J. R. Ritchey, for plaintiffs. and W. G. Guiler, for defendants. AOHESON, Oircuit Judge. This case turns upon the question as to what estate Edith Pearsol took,under the will of Samuel N. Orawford, in the land in controversy. The plaintiffs maintain that the to Edith was for her life only, and that the remainder in fee was devised to her children. Obviously, however, this will contains no express devise to Edith's children. If they took anything, it was inferentially, and not by the positive terms which the testator employed to declare his intention. His disposing language is: ''I give and, devise to IJ:lf' cousin Edith Pearsol * * * all that portion of the farm upon which I now reside, * * * to have and to hold the same to the said Edith Pearsol and the heirs of her body." These are the aptest words for the creation of an estate tail. Stand· ing alone, they would admit of no other interpretation. When, after theidevise of the land to Edith, the testator subjoined the words, "to have and to hold the same to the said Edith Pearsol and the heirs of her body," it is difficult to conceive how he could have had in view any other purpose than thereby to define the quantum of. estate which she was to take. What ground is there for holding that the words "heirs of her body" were used by him in the sense of children? The presumption, of course, is that the words were employed in their technical meaning: Ihrie's Estate, 162 Pa. St. 369, 29 AtI. 750. Now, "heirs of the body" are strictly and technically words of limitation. "Nothing can convert them into words of purchase but a intention of the testator to use them in an abnormal Linn v. Alexander, 59 Pa. St. 43, 46. Speaking of technical words used in wills, the supreme court of Pennsylvania, in Stone v. McMullen, 10 Wkly. Notes Cas. 541, 543, declared that the cases "show that the intent not to use the words in their legal sense must be unequivocal, and so plain that no one can misunderstand it." Certainly, no such clear intent is here discernible. It is to be noted that there are no words whatever in this will to restrict Edith's estate to her lifetime. Had that really been the intention of the testator, be surely would have so expressed himself. He knew very well how to do this; for, making provision in favor of Sarah Wellington, he provided that "she is to have a life estate in the first room in my mansion." Again, the fact that the testator imposed on Edith the payment of $2,000 to Benjamin W. Crawford, Sr:, raises a presumption that the testator intended to give her an
ILLINOIS STEEl. CO.
estate greater than for her life.' Lobach's·Cjlse, 6 Watts, 167, 171; Coane v. Parmentier, 10 Pa. St 72. Moreover, the rule is to regard the first taker as the preferred object of the testator's bounty, and in doubtful cases the gift is to be construed so as to make it as effectual to him or her as possible. Wilson v. McKeehan, 53 Pa. St. 79. Still further, the language of the testator--"Thepart of my farm above devised to Edith Pearsol contains one hundred and seventy-five acres"-is very significant. It clearly evinces that in the mind of the testator Edith was his sole devisee of this land. This, indeed, she was, by the disposing words of the will. The succeeding provision touching the marriage of Edith's chill1ren is awkwardly expressed, and somewhat confusing. It does not, however, I think, import an intention to cut down the inheritable estate devised to Edith. If regarded otherwise than as a prOVIsion in terrorem, its purpose, it WQuid seem, was to ingraft on tail a condition or contingency subject to which it should descend from Edith. It does not militate against this view that the testator's langQage may, perhaps, indicate ignorance as to how an estate tail descends. construction reconciles all the provisions of the will, and is consonant with the rules of law. An estate tail depend for its con· tinuance on the performance ofa condition, or may be defeated by the happening of a contingency. The tenant in tail, however, riuiy at any time before the happening of the contingency or breach of the condition bar the entail, in the manner provided by law, and becomes thereby he defeats every contingent interest, and his a fee simple absolute, free from lin conditions and limitations.' This was the effect of the deed to bar the entail executed by Edith Pearsol and her husband to Christopher Cox on June 10, 1858. The present case is closely analogous to that of Linn v. Alexander, supra, and the rulings of the supreme court in that case fully sustain the conclusion here reached, that the estate devised to EdithPearsol was an estate tail, which was converted into a fee simple absolute by the deed to Christopher Cox. The court, therefore, finds in favor in their of the defendants, and it is ordered that judgment favor. ....
ILLINOIS STEEL CO. v. PUTNAM et at (Circuit Court of Appeals, Fifth Circuit. May 28, 1895.)
RAILROAD COMPANIES-STOCKHOLDERS' BILL FOR RECEIVER GREMIO L E G I S . . .
Where a stockholders' bill asks for the appointment· of a rallroad receiver, not with a view to enforcing any lien or debt, but merely to secure a better management of the property until arrangements can be made' for discharging its debts, the mere filing of the bill and service of process do not draw the property of the company into the possession of the court, so as to prevent the company, prior to the appointment of a receiver, from surrendering steel rails lying along its right ot way, but not yet attached to its road, to the creditor from whom they were purchased, as P!1rt of a larger lot, in partial extinguishment of debt for the purchase price. .