66 Pa. 326 | Pa. | 1870
The opinion of the court was delivered, January 3d 1871, by
— John Yerner, by his last will dated 14th June 1837 and proved July 6th 1837, devised and bequeathed as follows:— “First, I will and bequeath to my daughters Christiana and Phoebe the house I now live in, together with all my household furniture, and 20 acres of land with the privilege of half the orchard — the orchard to be divided in quantity and quality; I will to my daughters Christiana and Phoebe all my cattle, hogs, sheep and fowls, and half of the Het mare, and likewise half the clock, half of all the grain in the ground, and half of all the grain in the barn. The remainder of my estate, real and personal, I will and bequeath to my son Thomas Yerner, in addition to what I have already given him, with the privilege of the barn (until he can get one built with the exception of one of the stables). I will to my son Thomas Yerner all my farming utensils, wagon, windmill, &c. The large copper kettle to belong to my daughters Christiana and Phoebe, and my son Thomas Yerner.” “I will to my daughters Christiana and Phoebe, to have privilege of what coal they may want. The 20 acres of land I have willed to my daughters Christiana and. Phoebe, to have during their lifetime; at their death, to have the privilege to will to my daughter Sarah Kerr’s children or my son Thomas Yerner’s children, just .as they see proper.”
Christiana died in 1850 intestate, and without issue. Phoebe Yerner died in 1863 without issue, having made her last will and testament dated March 18th 1859, which was duly proved.
By this will she bequeathed as follows: — “ I will to my nephew Melchor Yerner one feather bed and the necessary bedding. The bed willed to Melchor to be the bed usually known as ‘ Melchor’s bed.’ ”
“ I will the 20 acres of land, bequeathed to me and my sister Christiana by our father, to my nephew Melchor Yerner, son of my brother Thomas Yerner, his heirs and assigns for ever, as a compensation for his services while he resided with my sister Christiana and myself.”
“ I will all my personal property not mentioned above to be equally divided between my brother Thomas Yerner and my nephew Melchor Yerner.”
She appointed Melchor Yerner her executor. The plaintiffs are the children of Sarah Kerr, deceased, and the defendant who is in possession is the only child of Thomas Verner.
The whole tenor and scope of this will shows in the clearest manner it was the express intent of the testator to confer an estate upon Christiana and Phoebe for their joint lives in such wise, that
This being the nature of the estate, it follows logically that the privilege or power was legally executed by the will of the survivor, Phoebe, and that the court below were right.
The court below would be right, even if the power did not survive; for in that event the estate would be vested in Thomas Yerner.
Judgment affirmed.
