| Pa. | May 8, 1876
delivered the opinion of the court,
On the 13th of February 1874, the plaintiffs sold by articles of agreement to William fl. Miller, the defendant, one undivided fourteenth part of a tract of land in the county of Schuylkill. The agreement stipulated for a conveyance by the vendors to the purchasers’ of “a good, sufficient and marketable title.” The plaintiffs offered to execute and deliver a deed in fee simple in the usual form. On the allegation that the title was defective, the defendant refused to receive such a deed in execution of the contract. The claim of the plaintiffs to the property rests on'the last will and testament of John E. Rorer, which was executed on the 11th of December 1869, in these words: “ This is to certify, this is my last will and testament, that I do most respectfully submit that the children of William, James or Albert Rorer shall have no share or portion in my estate. And furthermore, I empower John P. Anshutz to settle my said estate; and I bequeath to the said John P. Anshutz all my right and title to any income from said estate as long as he shall live, and after his death his widow is entitled to said income; after her death it shall be distributed to Annie M.
All the successive devisees, except the widow of John P. Anshutz, were indicated with individual distinctness. There was no attempt at classification, and no direction, as to them, that the gift should be dependent on any relations which they bore to the testator or to each other. Can the intention be gathered from the will that the remainder to the widow was to be dependent on the relation which any wife of Anshutz should bear to him ? Mrs. Anshutz was in full life when the will was made. She was the testator’s niece. Surviving her husband, she would be his widow. Could the testator possibly have had in view any other wife of the husband of his niece, for whom it was his purpose to provide? Where an estate is given to a person described by relation either to the testator or to other devisees, on a contingency that may or may not happen, and a person is in being at the time of the execution of the will, to whom, on the happening of the contingency, the description would apply, it is a safe general rule to hold such person as intended to be the devisee. In Bryan’s Trust, 8 Eng. L. & E. Rep. 253, a testatrix gave the interest of certain money in the funds to her daughter for life, and after her decease the capital to be divided between the husbands of her daughters and her son, or such of them as might be living at the death of her daughter Mary. One of the daughters married a second husband after the death of the testatrix, who was living at the death of the tenant for life. It was held that the testatrix meant to designate the particular husbands living at the time she made her will, and that the second husband was not entitled to a share of the trust fund. In entering judgment the Vice Chancellor said : “ The question here is, whether the testatrix meant a class of persons or certain individuals. • She has used no expression to indicate which she intended. She says, ‘ to be divided between the husbands of my daughters and my son, or such of them as may be living at the death of my daughter Mary.’ Now it appears that the testatrix had before mentioned her son John, and that she had but one son. Therefore, I think it clear, that in using the expression ‘my son,’ she meant to designate her son John, and not any son she might have, or who might be living at the time of her decease. Now the husbands of the daughters, whom the testatrix knew, as well as her
Was the title marketable? It was said in Swayne v. Lyon, 17 P. F. Smith 436, that “ it has been well and wisely settled that under a contract for the sale of real estate, the vendee has the right not merely to have conveyed to him a good but indubitable title. Only such a title is deemed marketable, for otherwise the purchaser may be buying a lawsuit, which will be a very serious loss to him, both of time and money, even if he ultimately succeeds.” Is there anything in the circumstances of this case to create rational apprehension of danger from litigation ? Three distinct contingencies must arise before any interest hostile to the rights of the plaintiffs can be asserted. The first of these is the death of the present wife of Anshutz ; the second is his subsequent marriage; and the third is his own death in the lifetime of his last wife. The possibility of disturbance is too remote to be entitled to recognition. “ It is requisite that the possibility upon which a remainder is to depend should be a common possibility and potentia propinqua, as death, or death without issue, or coverture, or the like. Therefore a remainder to a corporation, which is not in being at the time of the limitation, is void, although it be erected during the particular estate. So, if there be a lease for life, remainder to the heirs of J. S., though this remainder be good because by common possibility J. S. may die during the particular estate, yet if there be no such person as J. S. at the time of the limitation, notwithstanding such a person should afterwards be born, and die during the life of the tenant for life, his heir shall not take by .virtue of such limitation, because the possibility on which it is to take effect is too remote, for it amounts to the concurrence of two several contingencies, not independent and collateral, but-the one requiring the previous existence of the other, and yet not necesserily arising out of it. This is called a possibility upon a possibility, which Lord Coke tells us is never admitted by intendment of law:” Eearne on Remainders 250, 251, and the cases there collected. 'While it was held by Judge King (in Dalzell v. Crawford, 2 P. L. J. 155), that “ a market
Judgment reversed, and judgment for the plaintiffs in accordance with the stipulations of the case stated.