118 Pa. 94 | Pa. | 1888
Opinion,
This was an action of ejectment for the recovery of the possession of a tract of twenty-five acres of land, more or less, situate in the township of South Buffalo in the county of Armstrong, brought by A. E. Bassett against Simon Hawk.
' The land in controversy was part of a larger tract owned by
Admitting the premise assumed both by court and counsel, and we cannot pronounce this ruling erroneous. It is true the remainder was in abeyance, and so remained until the decease of the life tenant, but, as was said in Kelso v. Dickey, 7 W. & S. 279, the contingency was not attached to the capacity of the remaindermen to take, but to an event independent of, and not affecting either their capacity to take, or to transmit the right to their representatives. So, in Chess’s Appeal, 87 Pa. 362, where a testator devised real estate to his son, and should he die without legitimate issue then the property to be sold, and after paying certain legacies, the balance to be distributed amongst his grandchildren; it was held, that the representatives of those grandchildren who died before the son’s death, should share in the distribution with those living. “ Attaching a contingency to the gift of the second bequest ought not and does not affect the case, unless that contingency relates to the capacity of the second legatee, or donee, to take: ” McClure’s App., 72 Pa. 414. From the authorities here cited, it is obvious that the assignments of' error on the plaintiff’s writ cannot be sustained. But a more serious question arises on the writ taken by the defendant. As we have seen, the court held that Daniel McGinley took under his father’s testament but a life estate. To this ruling the defendant excepted, and thus is raised the main question of the case.
It is contended, on part of Hawk, that the estate vested in
Here, then, our first inquiry is, what did Columbus McGinley intend by the language of which he made use ? We may admit that he intended to give Daniel but a life estate, but this of itself is not sufficient to prevent the application of the rule in Shelley’s Case, for the further question is, what did he intend by the word “heirs ” ? And what is there in the context to show that he did not intend to use that word in its technical sense ? The testator was evidently not speaking of children as such, for there were none then in existence, but of those whether children or grandchildren who should be born of his blood, and be living at the. time of his death and who, in consequence, would be capable of taking from him. In
As what we have said sustains the second and third assignments on Simon Hawk’s writ of error, we reverse the judgment and order a new venire. On the writ of A. E. Bassett the
Judgment is affirmed.