29 Pa. Super. 60 | Pa. Super. Ct. | 1905
Opinion by
A suit was instituted in the court of common pleas sitting in equity for the partition of certain real estate, the legal title to which at the time of her death stood in the name of Elizabeth A. Lehman, the widow of David P. Lehman. The proceedings resulted in a sale of the property, and a report by the master awarding the proceeds to the appellant and his brother, they being her children by David P. Lehman, deceased. Exceptions to his conclusions of law were sustained and the report referred back to him with directions to make distribution in accordance with the opinion of the court, which was that each of the appellees,^ — they being children of David P. Lehman by a former marriage — was entitled to share equally with the appellant. Exceptions were filed by the appellant to the subsequent decree confirming the report made by the master pursuant to the foregoing direction, and after these were dismissed this appeal was taken.
It appears from the master’s report that David P. Lehman by his first marriage had six children; that after the death of his first wife he married Elizabeth Moore, the decedent, and had by her two children, who were the plaintiff and defend
Appellant’s counsel claims that the questions involved in this appeal are : first, does the beneficiary clause in the policy of Lehman include only the children of the second wife, or does it include the children of both wives; second, is the limitation prescribed by the act of April 22,1856, a bar to recovery by the children of Lehman by his first wife; third, should the fund be distributed to Lehman’s children by both
There is nothing in the context to aid the appellant’s construction of the words “ their children ” in the beneficiary clause of the insurance policy. Nor are any circumstances shown which it may be inferred would have been likely to influence the insured to prefer one set of his children over the other. The suggestion that naturally he would be concerned especially for the children of his second wife, because they were younger, would not be without force, if there were any evidence that at the time he took the policy the children by his first wife were not dependent members of his household, or that they were adults, or that all of them had reached an age when it might be presumed they were self-supporting or soon would become so. But the record contains no evidence of that kind, and there is no ground for surmise even, that there was such a difference between the ages of his youngest children by his first wife and the age of his oldest child by his second wife as would naturally incline him to discriminate in favor of the latter. There is also a total absence of evidence that at the time the policy was issued the children of his first wife ■ owned any property in their own right, or
Upon a full consideration of the case from every standpoint we are of opinion that the court was clearly right in holding that the latter class of children were not intended by the insured to be excluded from the benefits of the provision that he made for those dependent upon him.
Decree affirmed and appeal dismissed at the costs of the appellant.