Lynch v. Lynch

132 Pa. 422 | Pa. | 1890

Opinion,

Mr. Justice Sterrett:

We are not convinced that there is any error in the decree from which this appeal was taken.

It appears from the report of the learned master that Patrick Lynch acquired by purchase the real estate described in the bill, and died seised thereof in November, 1871, leaving to survive him a widow, Mary Lynch, and one child, Daniel J. Lynch. The latter died intestate in September, 1885, leaving a widow, Virginia Reed Lynch, the plaintiff below; and testator’s widow died in August, 1886. By his last will and testament, Patrick Lynch devised the real estate in question to his wife for life, remainder to his son for life, remainder in fee to the issue of his son, if any, living at the time of the first life-tenant’s decease, etc., and, in default of such issue living at that time, then to the Right Rev. Bishop Wood, for charitable uses. The testator’s son never had any issue, and, of course, the devise to them never took effect. The ultimate limitation to Bishop Wood, for charitable uses, was absolutely void, because the will was executed less than thirty days before testator’s death; and, according to the provisions of the act of April 26, 1855, § 11, the ultimate remainder, which otherwise would have gone to Bishop Wood, in trust, etc., went “to the residuary legatee or devisee, next of kin, or heirs, according to law.” There being no residuary legatee other than Bishop Wood, the remainder in question passed under the intestate law to Daniel J. Lynch, the testator’s only son and heir at law. The effect of that was to give Daniel the remainder in fee, subject to the life-estate of his mother, but determinable by the birth of issue living at the time of her decease. He never had any issue; consequently, the contingent limitation over to them never became operative, and he died seised of the remainder in fee, subject only to the life-estate of his mother. That remainder passed, under the intestate law, to his next of kin, his paternal uncles and aunts, subject to the statutory interest therein of his widow, Virginia Reed Lynch, the appellee: Cote’s App., 79 Pa. 235.

There is no question as to who his next of kin are. That has been settled by the finding of the master. Some of them are brothers and sisters of the half blood of intestate’s father, Patrick Lynch, and one is a brother of the whole blood; but, inasmuch as § 8 of the act of April 8, 1833, makes no distinction between those of the whole and those of the half blood, they all inherit and take equally, all being of the blood of the first purchaser: Danner v. Shissler, 31 Pa. 289; Parr v. Bank-hart, 22 Pa. 291. The four children of Mary Boyle, deceased, paternal aunt of the intestate, take by representation the share that their mother would be entitled to if living. The specifications of error are not sustained.

Decree affirmed, and appeal dismissed, at the costs of appellants.