180 Pa. 5 | Pa. | 1897
Opinion by
The will of John Keating, Sr., begins, so far as concerns this controversy, by a devise of the premises in suit to his daughter in fee, to her “ and to her heirs and assigns forever.” Is this clearly cut down to a lesser estate in any subsequent clause ? The words which are claimed to have that effect are “if any of my said children shall die without leaving lawful children, the part devised to such child shall go to and be equally divided among my other children, who shall then survive the child so dying without lawful children, and if any of my children die leaving children or a child, then such child or children shall be entitled to the same share of the estate of any of my children who shall die without leaving lawful issue that the parent of such child or children would have been entitled had such parent been alive at the time of the death of my said child so dying without
There remains the question whether the share of Rebecca was subject to a separate use trust. The words are, “ the estate which I have bequeathed to my said daughters, Rebecca and Martha, shall not be liable to the debts nor subject to the control of their respective husbands.” The words are sufficient to create a trust if such was the testator’s intention. Of themselves they are consistent with such intent but not necessarily demonstrative of it. The testator left both real and personal estate, and included both in the residuary clause, but he did so by the use of both of the technical words “ devise and bequeath.” And when he indicated his will that his entire estate should be chargeable with the legacies as well as with debts and funeral expenses, he seems to have known that the personal estate would be liable without express words, for he uses only the proper technical term to charge the land, “ the estate which I have herein devised to my said children shall be bound and subject,” etc. When however he came to express his intention in regard to his daughter’s share he used the term “ bequeath ” only. He may have known that a husband at that time took
Judgment affirmed.