131 Pa. 256 | Pa. | 1890
Opinion,
Under any view we may take of this case, the plaintiffs cannot recover in this action. If they are right in their contention that the deed to James Hamilton created a valid separate use trust in favor of his mother, Isabella Hamilton, they are not entitled to the possession of the real estate in controversy, for the reason that the husband of Isabella Hamilton is still living, and entitled to his curtesy therein. Mrs. Hamilton having an equitable estate in fee, her husband would be entitled to his life-estate: Dubs v. Dubs, 31 Pa. 149; Rank v. Rank, 120 Pa. 191. We might well affirm this judgment without more, but, as we have the whole question before us, we prefer to decide it now, to prevent further litigation in the future.
The trust contained in the deed from Stewart Hamilton et ux. to James Hamilton is as follows: “ In trust, nevertheless, for the use of said Isabella Hamilton, wife of the said Stewart Hamilton, during her natural life, and at her decease then to her heirs in fee, share and share alike, and in the meantime to allow and permit her to receive for her own use the rents, issues thereof, subject to the taxes and costs of executing this said trust.”
The question is, what estate did Mrs. Hamilton take under this conveyance ? The contention of the plaintiffs is that she
Judgment affirmed.