266 Pa. 338 | Pa. | 1920
Opinion by
Plaintiff filed a bill for partition of real estate and prayed an accounting of rents alleged to have been collected by one of the defendants.
The case first involves the construction of a will, the question being whether Harry A. Burkley, a son, who survived his father, the testator, but predeceased his mother, the life tenant, took a vested fee simple in certain realty, or only a life estate.,
John Peter Burkley, the testator, had a wife and four children, for whom he provided in his will by giving to Catharine Burkley, his wife, an estate for life or during widowhood, stipulating that, “upon” her death or remarriage, “said estate shall fall and vest in my children or their descendents absolutely and in fee.”
We think that the word “or,” which follows “children” and precedes “their descendents,” is used in the conjunctive (see Bair’s Est., 255 Pa. 169, 173), and that it is apparent testator did not intend by “descendents” to designate a certain set of persons to take directly from him at a given time, but used the word in the descriptive sense of “heirs of the body,” or “issue,” of his children;
The will is by a husband and father, providing for wife and children — the natural objects of his bounty; and we see no indications therein of a desire to- make any distinction between the latter. The determination of the wife’s life estate does not depend upon an uncertain event, and the remainder in the children is limited to ascertained persons in esse, it being “certain to take effect in possession by enduring longer than the precedent estate.” Under these circumstances, notwithstanding Harry A. Burkley did not live to enjoy possession of his remainder, it was vested, not contingent: Bair’s Est., supra.
In the words of Judge Wessel of the court below: “It is true the children are not to have the immediate enjoyment of the estate, that being deferred until the determination of the widow’s interest,......but the time when it is to be enjoyed by the children depends upon a date certain to arrive, to wit, the widow’s death, with a possible acceleration by a remarriage. While testator did say that, ‘upon the death or marriage of my said wife, the estate shall fall and vest in my children,’ [it is plain from the will as a whole that] those words do not refer to the persons who should, at the widow’s death, become possessed of his estate, but to the time when his children should be entitled to [enjoy] possession thereof.” We agree with the court below that Harry A. Burkley died possessed of a vested estate in fee.
The next question involved is put by plaintiff (appellant here) thus: “Is it proper practice for the court to enter a decree directing partition of real estate and appointing a master for that purpose, without first directing an accounting of rents collected, and entering a decree adjusting the equities in the balance due thereon,
The proposition just stated must be answered in the negative. The learned court' below therefore erred in refusing to find as facts, alleged in the bill and not denied by the answer, that Louis F. Burldey had collected and failed to distribute rents of the real estate about to be partitioned; it further erred in not ordering an accounting of such rents: Dunshee v. Dunshee, 234 Pa. 550, 556.
The chancellor should have had an account before him, and fixed the amount of defendant’s indebtedness to his cotenants (Act of June 24,1895, P. L. 237), before entering the decree for partition (Dunshee v. Dunshee, supra); but, this not having been done, when the present record is returned, the court below must set the case for rehearing and, after finding the necessary facts, enter a decree in accordance therewith, so as to adjust the question of the rents between the parties, for the guidance of the master in making his final distribution, — unless those in interest agree, under Equity Buie 69, that the same person who has been appointed master shall act as referee to pass on the account and distribute the balance found to be due.
The two assignments of error which complain of the trial judge’s failure to order an accounting, aré sustained ; and, to this extent, the decree is reversed; otherwise it is affirmed. The record is remitted with a procedendo, the court below to act in accordance with the views expressed in this opinion; costs to be paid out of the fund for distribution.
