5 Pa. 385 | Pa. | 1847
The plaintiffs in this case claim to sequester the rents and profits of the land devised by her father to Elizabeth Clippenger, during her natural life, by virtue of the writ of sequestration issued against her husband, Jacob Clippenger, on the ground that he is entitled to a freehold estate in the premises, ■pur autre vie, during the life of his wife, and in her right. If this be so, it
In the present instance, the devise is to Isabella C'lippenger, wife of Jacob Clippenger, for her and her family’s use during he,r natural life. It is thus expressly devoted to this -particular class of persons, and unless the husband be one of that class, it would seem to follow necessarily, that he is to be excluded from all participation in the subject of the devise. If the words used had been “ for her and her children’s use during her life,” I conceive there could have been no pretence of any estate in the husband, for coupling the wife’s enjoyment with other devisees, independent of the husband, and making their enjoyment dependent upon her continual possession of the land, must shut out any interference of the husband which might jeopard this possession. The counsel of the plaintiffs conceding this difficulty to lay in his path, has endeavoured to show that the husband is to be considered as the head of the family, and, as such, entitled to-the sole use of the estate given during the coverture. ■ If this be S0j it draws after it a very grave consequence, for it would vest the husband with full dominion over the subject, and, as the events- which haVe happened illustrate, might totally prostrate the testator’s intention, by withdrawing the use of the land from the other members of the wife’s family. A consequence such as this ought to make us hesitate long before adopting the theory which leads to it. But -we think that in this the plaintiffs are entirely mistaken. Neither in common parlance, nor upon the technical construction of the words “wife’s family,” without more,
These cases, it seems to me, are conclusive of the present question, for there is nothing in the will under consideration to show the testator intended to extend the word “family,” as here used, beyond its ordinary legal signification. On the contrary, there is every thing to lead to a different conclusion. Whether, therefore, we look to the ordinary and familiar meaning of the word as it is here employed, or to the judicial construction it has received in the context, there is no difficulty whatever in saying, it is to be confined to the wife’s children, in esse, for they are her next of kin, and upon her death will be -her heirs. The husband cannot take under the terms used as designatio personae, and as the evident intent of the testator, in creating the trust, requires his exclusion from its benefits, we see no legal difficulty in pronouncing as the unanimous judgment of the court, that, under this will, the wife of Jacob Clippenger takes an estate for life, in trust for the separate .use of herself and of her children, with remainder to them in fee. It results from this conclusion, that the action of the court below was right in the. premises. Wherefore, Judgment affirmed.