
    
      Court of Common Pleas, Dauphin County,
    
    
      April 7th, 1863.
    Unger v. Unger.
    A devise to a person of the proceeds of real estate during life, and upon his death to his heirs in fee simple, gives to the former not a life estate, hut one in fee.
   By the Court.

This case, as stated, presents a single legal question: Does the will of Bernard Geiger give to his daughter, Anna M. Unger, a fee simple, or a life estate in the property sold? If the former, the plaintiff is entitled to recover; if the latter, judgment must be rendered in favor of the defendant.

The will of Bernard Geiger, made in the year 1841, by clear and unequivocal expressions, gives to each of his three daughters a life estate in certain real property, therein described, of which he died seized in fee, of which the lot now in question is a part. But the portion of the will relied on by the plaintiff to convert the life estate into a fee simple is in these words: “ The proceeds of my said real estate to be applied by my executor, until the appraisement thereof, to the joint use of all my children, and upon the decease of either of my said daughters, the real estate above devised to her, during life, I give and devise to her heirs in fee simple.” There can be no possible doubt of the actual intention of the testator to bequeath a life estate only in the houses mentioned in the will, and the land in question to his three daughters. He so declares in four several places, whilst he gives them the fee simple in the residue of his estate. But the limitation over is in favor of their respective heirs, in fee simple. Does that confer the fee on Mrs. Unger, as the proprietress or first taker of a new estate? That question appears to be answered in the affirmative by nearly all of the decisions.

From them it would seem to be quite as impossible to deprive the donee or alienee for life, remainder over to the heirs of his body, from barring the entail by a common recovery, as to sell or bequeath land in fee simple, and prevent the devisee or alienee from selling it again; and the same rule precisely has been applied to bequests or alienations in fee simple, as to those in fee tail. "What is called the rule in Shelley’s case has become a settled rule of property in Pennsylvania, and cannot now be shaken without overturning many estates and doing incalculable mischief. Although often spoken of as if the rule was then adopted or recognized for the first time, it is of much greater antiquity, as we are' able to trace it back as far as the reign of Edward the Third, and probably to that of Edward the First. It has been applied to both deeds and wills, as is clear from Shelley’s case itself, and Hileman v. Bouslough, 1 Harris, 344, which arose under deeds, and a multitude of cases depending on wills.

In almost every case, whether arising under one or the other, it has defeated the intention.of the grant or bequest; but notwithstanding it almost invariably has that effect, we must adhere to the rule, which I am disposed to think was adopted, in the first instance, to prevent the fettering of estates from alienation during the lifetime of the immediate alienee or devisee; and in the case of wills to more clearly mark the distinction between those who take by descent, and those who hold by purchase. There can be no doubt in the present case that the limitation over after the expiration of the life estate is to the heirs general of the daughters respectively; not as children, but as heirs generally; not as descriptive of the persons, but of the character in which they are to take. They are to take as heirs of the devisee of the freehold, and not as the root of a mere succession. This, according to all of the cases in Pennsylvania, from Carter v. McMichael (10 S. & R. 429) to Guthrie’s Appeal (1 Wright, 9), and Haldeman v. Haldeman (4 Wright, 29), has been treated as an invariable guide to determine that the first taker holds the property in fee simple or fee tail, and has not a mere life estate, and can alien or devise the same as other owners of the freehold, or other tenants in tail. Had Bernard Geiger given the remainder over to his own right heirs, or limited it to the children of his daughters respectively, should they die leaving issue living at the time of their deaths, and if not to his heir-at-law, there could be no doubt but that the property so devised would .have been for life only. But the will is not so worded, and we must take it as it is written, and carry it out according to the legal effect, although it may defeat the actual intention of the testator. Judgment must be rendered in favor of the plaintiff on the case stated.

Kunkel and Lamberton, for plaintiff.

Simonton, for defendant.

Affirmed by the Supreme Court, May 27th, 1863.  