235 Pa. 610 | Pa. | 1912
Opinion by
The matter here for decision is the question of the ¡proper interpretation of the following provision contained in the will of Joseph Barnsley: “Item. I give and devise my farm (devised by my father to me) to my nephew, Joseph Barnsley and to his children; but in case he should die without legal issue, then it is to go to the heirs of my father, as directed by the intestate laws of Pennsylvania; subject, nevertheless, to the yearly payment of one hundred dollars to my sister, Mary Ann Barnsley, during her life.”
The testator died January 12, 1888. Mary Ann Barnsley, the annuitant, died January 16,1889. Joseph
In Graham v. Flower, 13 S. & R. 439, it is stated: “In Wild’s Case, 6 Coke, 16b, this distinction is taken: (1) ‘If A devises land to B and to his children or issues, and he hath not any issue at the time of the devise, the same is an estate-tail, for the intent is manifest and certain, that his children or issue should take, and as immediate devisees they cannot take, because they are not in rerum natura, and by way of remainder they cannot take, for that was not his intent, for the gift is immediate; therefore, then, such words shall be taken as words of limitation. (2) But if a man devises land to A and to his children or issue, and he then has issue, his express intent may take effect, according to the rule cf the common law, and no manifest and certain intent appears to the contrary; and therefore, in such case, they shall have but a joint-estate for life.’ ” In the case just cited, and in Shirlock v. Shirlock, 5 Pa. 367, the second resolution of the rule was followed, and it was
In all of the cases just referred to children were liv
We shall now consider the applicability of the rule in Shelley’s case. In the present instance, as in all other cases, our first inquiry is, looking at the words of the will, what did the testator intend? We entertain no doubt that when Joseph Barnsley devised the farm to “my nephew and to his children,” and provided if the nephew should die without legal issue it was to go to the heirs of his, the testator’s father, he did not at all contemplate that, if the nephew should leave no descendants his heirs should take to the exclusion of the heirs of the testator’s father. Yet, if the words used express an intention that the land shall go to the testator’s nephew and then descend lineally through him to his issue, the rule in Shelley’s case applies and the Court below must be affirmed on that theory. But on the other hand, if the words show that the testator intended the children of his nephew to take as purchaser’s directly from him, the testator, then the rule in Shelley’s case has no application: Kemp v. Reinhard, 228 Pa. 143.
Under the settled decisions of this Court, the language employed by the testator, “to my nephew and to his children” was tantamount to saying, “to my nephew for life with remainder to his children.” The only question is, does the use of the phrase “in case he should die without legal issue,” make it necessary to construe the prior use of the word “children” as though
Since the nephew was dead, without issue, the devise over to the heirs of William Barnsley, the father of the testator, would take effect as an alternative limitation : Sheets’ Estate, 52 Pa. 257; Fetrow’s Estate, 58 Pa. 424, and the Court below should have determined this case accordingly. The assignments of error are