217 Pa. 419 | Pa. | 1907
Opinion by
This is an action of assumpsit to recover the purchase money for real estate sold by the plaintiffs to the defendants’ decedent. The facts appear in full in the case stated. The right to recover is resisted by the defendants on the ground that the plaintiffs cannot convey a good title to the premises. The title was acquired by Virginia Hastings, the wife of the other plaintiff, under the will of Elizabeth Coleman, deceased, which provides, inter alia, as follows : “ I give and bequeath to Mrs. Virginia Hastings during her lifetime, and the heirs of her body at her-decease all my real estate, and in case of her or her children dying without living issue the said real estate I give to the Board of Home Missions of the Hnited Presbyterian Church of North America. I also give Virginia Hastings my piano and all my household goods absolutely.” On April 18,1900, the following codicil was added: “ I give and bequeath to Gula Hastings one thousand dollars to be paid to her out of my real estate.”
The plaintiffs contend that Mrs. Hastings takes a fee simple estate under the will, but the defendants claim that the devise to her creates only a life estate, and that, therefore, she cannot convey a fee simple estate.
At the time the will was written Mrs. Hastings had one child, a son Ralph, to whom the testatrix bequeathed $1,000, payable out of the bank stock. Subsequently her daughter was born to whom the testatrix made a bequest, payable out of the real estate.
The primary devise is “ to Mrs. Virginia Hastings during
We now turn to the clause of the will immediately succeeding the one containing the primary devise, and which passes the estate over. Its language is as follows : “ And in case of her or her children dying without living issue the said real estate I give to the Board of Home Missions of the United Presbyterian Church of North America.” The purpose of this clause, apparent on the face of it, was to meet the contingency of the beneficiaries named in the primary devise, dying without issue. The testatrix believed she had disposed of the whole estate in the first clause, which was true, but to avoid an intestacy caused by tire death of the primary devisees she supplemented it with the succeeding clause. That is the manifest purpose of the latter clause of the will. She, however, has used in this clause “ her children” instead of the words “heirs of her body,” and this is the ground for the appellant’s con
The rule in Shelly’s case, as we have often said, is not one of construction but of law, and it operates only after the intention of the testator has been ascertained from the language of the will. Here, the testatrix devised her real estate to the devisee for life and to the heirs of her body, and if she or her heirs died without issue then over. Such having been ascer
The assignments are overruled, and the judgment is affirmed.