233 Pa. 550 | Pa. | 1912
The question presented by this appeal is whether the plaintiffs could convey a good title to all the coal under a tract of land which they held under the following devise:
“Art. 2d. I will to my son Henry S. Day the real estate known as the Dr. H. W. Blachly Farm, together with two receipts I hold, one calling for Two Thousand Dollars, the other for Sixty Dollars during his natural life, — under the following conditions — by paying to his mother One Hundred and Twenty Dollars semi-annually if she thinks proper to leave the farm, and Seventy Five if she remains. At his death to be divided among his living children as follows, — Five Hundred Dollars to Mary C. Day, the remainder to be divided equally among the other children except to Arthur and Harry Forty Dollars each more than the others in lieu of two gold watches which Clinton and Howard are to have. This division is no way or manner to interfere with the legal collection of such notes as I hold against this estate.”
At the date of the will Henry S. Day had five children, another child was born before the death of the testator, and two have been born since. The agreement of sale was executed by Henry S. Day and his five children who were living at the date of the will. It was held by the learned judge of the common pleas that the intention of the testator was that the remainder of the estate should be divided among the children of his son, Henry S. Day, who were living at the death of his son. In this conclusion we concur.
The judgment is affirmed.
