Barber v. Pittsburgh, Ft. W. & C. Ry. Co., 69 F. 501 (Pa. 1895)

ACHESON, Circuit Judge.

The parties to this suit respectively claim title to the land in controversy under the following provisions of the will of James S. Stevenson, deceased:

The testator died October 16, 1831. His will was probated on the 18th day of the same month and year. Amanda Stephens survived the testator, and in the year 1847 intermarried with Samuel Haight. On July 27, 1848, Amanda and her husband, by deed to Jacob Haight, executed, acknowledged, and recorded agreeably to the provisions of the statute for barring estates tail, barred any estate tail that Amanda had in the devised lots of ground. After-wards the title of Amanda, freed from any entail, became, vested in the defendants. Amanda had several children by her husband, Samuel Haight, but they all died in the lifetime of their mother, without having had issue. Amanda died September' 28, 1891. Her husband died previously. The plaintiffs are children and grandchildren of John Barber, deceased. Their position is that Amanda Stephens took no greater estate in the devised lots of ground than a qualified fee, defeasible in the event of her dying without offspring by her husband surviving, her, and, this event

having happened, that the devise over to the heirs of John Barber look effect. The defendants insist, primarily, that Amanda took an estate in fee simple; but, if not, then they contend that she took, at least, an estate in fee tail.

The will of James S. Stevenson was considered by the supreme court of Pennsylvania in the case of Mitchell v. Railway Co., 165 Pa. St. 645, 31 Atl. 67. The court held that, although the testator died before the wills act of 1833, the words in the preamble of his will, “'desirous of making a. distribution of my property,” showed an intent to dispose of his whole interest, and were to be carried down into the body of the will, and that those words imported an in tent to give to Amanda an estate in fee simple in this particular property, notwithstanding (he devise over to “the heirs of John liar hex*”; that the confingency upon which the estate was to go to liicm was the death of Amanda, “without offspring by her 1ms bañil,” in the lifetime of the testator; and that Amanda, having survived him, took a, fee simple. The defendants maintain that Ibis decision is, conclusive here. But to that: proposition we are not able to assent. A. single verdict and judgment iti ejectment in Pennsylvania, not being conclusive in the courts of the state, is nut conclusive in the courts of the United States. Gibson v. Lyon, 115 U. S. 439, 6 Sup. Ct. 129. This decision of the supreme court of Pennsylvania, indeed, as a precedent is entitled to peculiar regañí, and we would he disposed to follow it, even though we might doubt the correctness of the construction which that court gave to the devise to Amanda Stephens.

The plaintiffs, however, have introduced (under exceptions) some evidence that was not, it seems, before the courts in the former litigation, with reference to the stale of facts under which, as they allege, the will of James S. Stevenson was made; facts which they contend are competent aids in construing the will, and call for a different conclusion from that reached by the supreme court of IVnnsvlvania. On the strength of this evidence it is asserted, in (he first place, that Amanda Stephens was the natural child of James S. Stevenson. We are of opinion, however, that there is no competent evidence to establish the truth of this allegation, if it he ma terial. The declarations here mainly relied on were made by a person who was not related either by blood or marriage to James S. Stevenson, and they were made many years after- his death. Again, the plaintiffs claim to have shown that Stevenson whs dangerously ill for t.wo weeks preceding his death, and of this we think there is satisfactory evidence. Then they have offered the register’s record of the probate pi the will, which sets forth that the two attesting witnesses deposed before him that op the 16th day of October, 1831,—-the date of Stevenson’s death, as appears aliunde,—they subscribed their names to the will as witnesses at the request and in the presence of the testator, who then declared that it was his last will and testament. As this probate was the judicial act of the register, and both sides claim under it, we incline to think that the contemporaneous and customary record made by the register in the course of his official duty is com

petent evidence to show the date on which1 the testator caused the will to be attested, and published it in the presence of the subscribing witnesses. But upon the question whether the evidence here relied on warrants a different construction of the will from that adopted in Mitchell v. Railway Co., supra, we do not feel called upon to express an opinion. If we were to hold that the devise to Amanda Stephens did not pass to her an estate in fee simple, this conclusion would not help the plaintiffs, for we cannot agree with them in their conten! ion that Amanda took only a defeasible fee. In our view of this will, if Amanda did not take a fee simple, she took, at least, an estate tail. “Offspring” is a word of limitation, not of purchase. Allen v. Markle, 36 Pa. St. 117. Speaking of the devise in question, the court in Mitchell v. Railway Co., supra, said:

In Vaughan v. Dickes, 20 Pa. St. 509, the testator, after a devise to his wife for her life, directed as follows:

The court held that these words created an estate tail in Peter. In Matlack v. Roberts, 54 Pa. St. 148, the court decided that the words, “I give and devise to my sons all the residue of my estate, real and jiersonal. * And, in case of the death of either of my children unmarried or without issue, then 1 do order that the share of said child or children so dying may be divided equally among my surviving daughters or their heirs,”—created an estate tail in the sons. The authority of these decisions is unshaken. It will be perceived from the above quotation from the opinion in Mitchell v. Railway Co., supra, that the court treated the word “unmarried” as unimportant, holding that the devise over was in the event of Amanda’s dying without issue. Now, it is firmly established by an unbroken line of authorities, among which are Vaughan v. Dickes,. supra, and Matlack v. Roberts, supra, that a devise over to named living persons upon the failure of the issue of the firsr taker does not import a definite failure of issue. In the leading' case off Eichelberger v. Barnitz, 9 Watts, 447, 449, the devisp which there was adjudged to create an estate tail contained these words:

Here the devise over was not only to named living children of the testator, but it was to them distributively in equal shares. To

hold at this late day that such a devise over imports a definite failure of issue would shake a multitude of titles. The authority of Eichelberger v. Barnitz, supra, was fully recognized in the recent case of Hackney v. Tracy, 137 Pa. St. 53, 20 Atl. 560. The case oí Middleswarth v. Blackmore, 74 Pa. St. 414, was decided upon the peculiar provisions of the will there involved. It does not furnish a rule for this case. Amanda Stephens was the preferred object of the testator’s bounty, and the construction should incline towards making the gift as effectual to her as possible. We are satisfied that upon any admissible construction of the will of James S. Stevenson the title to the land in dispute is in the defendants.

BUFFINGTON, District Judge, concurs.