13 Pa. 152 | Pa. | 1850
The opinion of the court was delivered by
I am satisfied, from the reasoning submitted on the part of the plaintiff below, and upon the authority of all the cases, that by the phrase “ in case of the death of either of my children,” the testator did not mean death generally, or whenever it might happen, but in the contingent sense of death occurring within a particular time, in which case the devise over was to take effect by way of substitution, and not as a limitation engrafted on, and qualifying the fee given to the children. It is very obvious it was not intended to cut down the absolute fee given to them, in every event, and yet such must be the result if the testator meant the indefinite death of any of his children, contended for by the defendant as marking the period of transmission. Under that reading, if the first takers died leaving children, the estate would go over to the latter, in fee, as purchasers, and if the former died, indefinitely, without children, it would go to the surviving brothers and sisters absolutely. The practical effect would be to reduce the first estate to an interest for life, merely, notwithstanding the explicit use of technical terms conferring a fee, evidently employed with a distinct notion of their legal meaning; Clayton vs. Lowe, 5 Barn. & Ald. 636. Besides, that construction would render defeasible the original shares first taken under the will, while those which might accrue by the clause of survivorship, would vest absolutely; a consequence, certainly, never contemplated; Pain vs. Benson, Atk. 80, Exparte West 1 B. C. C. 575. Congruity, therefore, requires that the1 chance of survivorship among the children of the testator, and the possible event upon which the limitation over to their children might take effect, should be referred to the same determinate period; or in other words, to let in the survivors on the death of any of their brothers or sisters, without issue, the contingency must happen within the
I have said that to harmonize this will, and to give consistency to all its parts, we must refer the possible consummation of the second contingency, as creative of an estate in the survivors, to the same limit. Such a construction is not only called for by reasons springing from this particular testamentary instrument,
Judgment affirmed.