
    Frank v. Frank.
    A testator, by his will, made a devise to bis daughter, “ during her natural life-time,” of all his real estate wheresoever situate. In the next item, he gave the same real estate to his wife, during her natural life-time “ should my daughter die before my wife and without issue of her body, or should she leave issue of her body and the said issue also die before my wife.” In another item he provided: “ Should my daughter, however, leave issue of -her body, and survive my wife, I give and bequeath my real estate hereinbefore bequeathed unto said issue of my daughter.” And again: “ In case my wife should survive my daughter, or the issue of her body, if any, and my estate descend unto my said wife, as provided for in a former item,” the whole estate was directed to be sold and the proceeds to-go to his sister and the sisters of his wife. B.eld, that the daughter took only a. lif 8 estate during the life of her mother.
    
      It seems, that the daughter’s estate may be enla/rged into a fee, if she survive her mother.
    Feb. 20, 1889.
    Error, No. 185, Jan. T. 1889, to C. P. Lebanon Co., to review a judgment for defendant on a case stated between Lizzie F. Frank, as plaintifE, and Catharine S. Frank, as defendant, at Sept. T. 1888, No. 218. Sterrett and Mitchell, JJ., absent.
    The case stated was as follows:
    “ Lizzie F. Frank, the above plaintifE, has entered into articles of agreement in writing with Catharine S. Frank, the defendant, bearing date July 28, 1888, for the sale and conveyance of a tract of land mentioned and described in said articles, which, together with the last will and testament of Henry M. Frank, deceased, bearing date Feb. 7, 1879, is made a part of this case stated:
    “ The said plaintifE, who is the only child and heir at law of the said testator, has passed her majority and is still unmarried; the defendant is the widow of the testator; all the debts of the decedent, except those subject to which this property has been sold, have been paid.
    “ If the court be of opinion that, under the facts stated, the plaintifE, who is the Lizzie F. Frank mentioned in the aforesaid last will and testament, can make and convey such'title to the property as the aforesaid agreement calls for, then judgment to be •entered for the plaintiff for the sum of two hundred dollars; if not, then judgment to be entered for the defendant, the costs to follow the judgment, and either party reserving the right to sue out a writ of error.”
    The agreement provided that “the interest sold and hereby agreed to be conveyed to the party of the second part and her heirs and assigns, is, with what she now has in said property under the last will and testament aforesaid, a fee simple estate.”
    The material portions of the will are stated in the following ■opinion of the court below, by McPherson, J.:
    “ The question here is, whether, under the will of her father, Lizzie F. Frank has how an estate tail in the farm which she has agreed to sell to Catharine Frank. If she has, § 1 of the Act of 1855, P. L. 368, turns it into a fee simple and makes it freely alienable ; if she has not, she cannot now convey the fee, even if in the future her estate may possibly be thus enlarged.
    “ It is necessary first to construe the will, and, in doing, so, we must consider the whole instrument, Hopkins v. Glunt, 111 Pa. 290, and give effect to all its parts, if this is reasonably possible. Finney’s Ap., 113 Pa. 18. The rule in Shelly’s Case, which the plaintifE invokes, is not a rule of construction, not a means of ascertaining ■the intention of the testator. It presupposes that intention to be already ascertained. Kleppner v. Laverty, 70 Pa. 73. Turning, then, to the will, we find its relevant provisions to be as follows: The testator first gives to his daughter Lizzie ‘ during her natural life-time all my real estate wheresoever situate,’ subject to certain reservations, not now important. In the next item, he gives the ■same real estate to his wife Catharine during her natural life-time ‘ should my daughter Lizzie die before my said wife Catharine and without issue of her body, or should she leave issue of her body and the said issue also die before my said wife.’ Having provided for this contingency, he goes on to provide for another, as will more clearly appear by a slight transposition of his language: ‘ Should my daughter Lizzie, however, [survive my said wife and] leave issue of her body, I give and bequeath my said real estate hereinbefore bequeathed unto said issue of my daughter Lizzie.’ Then, in another item, he returns to the contingency of his wife surviving Lizzie and provides : ‘ In case my said wife Catharine should survive my daughter Lizzie or the issue of her body, if any, and my estate descend unto my said wife, as provided for in a former item,’ his whole estate shall be sold and the proceeds go in specified proportions to his own sister and the sisters of his wife. Arranged in an orderly manner, the above quoted provisions dispose of the testator’s real estate as follows: 1st, to Lizzie for fife; 2d, if she has no issue and dies before Catharine, or if she has issue who also die before Catharine, then to Catharine for life, after whose death it shall be converted into money and the proceeds thereof divided among specific legatees; and, 3d, if Lizzie survives Catharine and dies, leaving issue of her body, then to said issue.
    “ In other words, the testator evidently did not mean to give Lizzie more than a life estate so long as Catharine lived. The latter was herself to have a life estate in case Lizzie and her issue died first, and this provision might have been defeated if he had given Lizzie an estate tail, for this would at once become a fee which she might convey during Catharine’s life. If she did convey, and then died without issue while Catharine survived, Catharine’s life estate could not take effect and a distinct provision of the will would be thus defeated. In that event, also, the bequest of the proceeds could not be carried out, and thus a second distinct provision of the will would be made of no effect. But the whole will is enforced, if its meaning is held to be, that Lizzie’s estate at present is only for life, although it may perhaps be enlarged into a fee if she survives her mother. Whether the will contemplates a definite, or an indefinite, failure of Lizzie’s issue we need not now decide. The question may never arise and can only become important if Lizzie or her issue survive Catharine. The death o'f the latter is the point of time when, if at all, Lizzie’s estate for life will become an estate tail; at present, as Lizzie and Catharine are both alive, the former has only the life estate which vested at her father’s death.
    “ In our opinion, the true construction of the will does not, at least for the present, call for the application of the rule in Shelley’s Case; for that rule does not operate where the manifest intention of the testator is to give the first taker only an estate for life. Miller v. Lynn, 7 Pa. 443; Gernet v. Lynn, 31 Pa. 94; Snyder’s Ap., 95 Pa. 179 et seq. We therefore decide that the plaintiff cannot now convey a fee simple in the land, and direct judgment to be entered for the defendant.”
    The only transposition of the language of the will, in the above opinion, is the insertion of the language in brackets.
    
      
      The assignment of error specified, the action of the court in directing judgment for defendant.
    
      Josiah Funek, for plaintiff in error.
    Under the will, the plaintiff in error has an estate tail in the property, subject to the reservations in favor of her mother. Braden et al. v. Cannon, 1 Grant, 60; 1 Washburn on Real Property, *72, pl. 24, 4th ed.; 2 Jarman on Wills, 137, 5th Am. ed.; Allanson v. Clitherow, 1 Ves. Sr. 24.
    If "the estate tail, for which we are contending, arises by implication, it would not be destroyed by any of the provisions contained in the will. They all relate to an intermediate failure of issue, which would be entirely compatible therewith.
    The word “ or ” in the last clause of the will bearing upon this question, must be construed to mean “ and.” If this is not so, then the widow of the testator might survive the daughter, but not her issue, when the latter would be entirely disinherited. This clearly was not the intention of the testator, and courts will always endeavor to carry that into effect. Doebler’s Ap., 64 Pa. 9.
    That testator gave his daughter in the first instance only an estate for life, will not prevent her from taking the fee under the statute, if he limited the estate to the issue of her body indefinitely. Doebler’s Ap., supra; Haldeman v. Haldeman, 40 Pa. 29.
    There is nothing in this will to indicate that the testator intended a definite failure of issue. The word “ issue ” means heirs of the body. Carroll v. Burns, 108 Pa. 387; Angle et al. v. Brosius, 43 Pa. 189; Stone and Wall v. McMullen, 10 W. N. C. 541. A limitation over to “ survivor ” does not indicate a definite failure of issue. Braden et al. v. Cannon et al., 1 Grant, 61; Kleppner v. Laverty, 70 Pa. 70. Neither does “ dying unmarried.” Matlack v. Roberts, 54 Pa. 150. But at common law, the established interpretation of words of limitation on failure of issue whether the terms be “if he die without issue,” “if he die without leaving issue,” “if he have no issue,” or “ if he dies before he has any issue,” in the absence of all words making a different intent apparent, is, that they import a general indefinite failure of issue, and not a failure at the first taker’s death. Eichelberger v. Barnitz, 9 Watts, 447; Lawrence v. Lawrence, 105 Pa. 335; Gast v. Baer, 62 Pa. 35.
    The case stated does not assume that the daughter can convey a fee to her mother, for the mother has an interest in the property of which she cannot be divested. The claim is, that the mother and the daughter together are the owners of the property — the latter, subject to the former’s interest, has an estate tail, which the Act of Assembly of April 27, 1855, turns into a fee. And that when the mother acquires the daughter’s interest, she has a good fee simple title. That is all the plaintiff in error agreed to convey.
    
      J. M. Funck, for defendant in error,
    repeated the reasons and authorities contained in the opinion of the court below.
    March 4, 1889.
   Per Curiam,

This judgment is affirmed upon the opinion of the learned judge of the court below.  