Gilland v. Hallett, Appeal, No. 59

Appeal, No. 59 | Pa. | Mar 31, 1913

Opinion by

Mr. Justice Mestrezat,

The will of the testator provides as follows: “the resadue of my estate I wil and bequeath to my daughter Martha Maria now married to Dr. John C. Gillin during her life-time and at her dath for the benefit of her children if their should be any living and in case their should be no children of hers or aney Heirs from any of her children then I wish that the said Dr. John C. Gillin is to devide the one-half of the residue of my estate between my brothers and sisters or thier Heirs.”

We agree with the learned court below that under this provision of the will Martha M. Gilland took an estate tail which was converted into a fee by the Act of April 27, 1855, P. L. 368.

The word “children” is primarily a word of purchase, but it is well settled by our decisions that when it is used in the sense of “heirs of the body” or “issue,” it is a word of limitation. It is clear, we think, that in the present case the testator used the word in the latter sense, and intended that the estate should go to the lineal descendants of his daughter. He contemplated an indefinite failure of his daughter’s issue. The estate was to go over “only in case there should be no children of hers or aney Heirs from any of her children.” So: long, therefore, as there was any of her own children or. “aney Heirs from any of her children,” the estate did not', go to the other devisees. This language clearly indicates that it was the intention of the testator the estate should not go over until the extinction of the lineal descendants of his-daughtér. Shelley’s rulé applies, and the daughter takes an éstate tail which is enlarged into a fee by the statute.'

The judgment is affirmed.