14 Pa. Super. 303 | Pa. Super. Ct. | 1900
Opinion by
George Shellito died in December, 1844, having first duly executed a last will, which was probated on the 5 th day of that month. The questions for determination in this case arise under the following clause in said will-: “The place that William lives upon, he can live upon as long as he chooses, and when he dies, or leaves it, it is to descend to his two eldest sons, and for want of male heirs it is to descend to his two eldest daughters.” No other clause in the will further limits or explains the estates which it was the intention of the testator should pass by virtue of this devise. The intention, of the testator as expressed in his will or arising by clear implication therefrom, is not to be defeated by the use of technical terms in the clause under which the estate passed. It was clearly the intention of the testator that William should take in this land a life estate, subject to be sooner terminated by his voluntary surrender thereof and withdrawal from the premises. Subject to the particular estate a fee simple in remainder was given to the sons of the first taker, and then follows a limitation over on default of male heirs. The rule that a devise over in fee, after a life estate, to the sons or children of the first taker, will not enlarge the life estate into a fee by implication is too well settled to require discussion. The fact that the remainder-men stand in the relation of heirs is not sufficient to overcome the presumption of law that by “ sons ” purchasers were meant, even though the testator directed that they should take in the order of heirs. In the present case the two daughters who were to become entitled to take under the ultimate devise over, “ for want of male heirs,” were in being at the date of the will and at the time of the death of the testator. It is, therefore, manifest that in using the term “ for want of male heirs ” the testator referred them to a definite failure of issue male, and that
The appellant relies upon the interpretation of the clause in question which we have adopted, but contends that applying that clause to the facts in the present case she is entitled to recover. She is one of the eldest two daughters of'William Shellito. At the date of the will William had living two daughters, both of whom survived the testator, as well as the termination of the life estate devised to William. William had no son at the date of the will, or at the death of the testator, but a son, John A. Shellito, was born on March 30,1847, and died in 1885, leaving four children, who are his lawful heirs and the defendants in this issue. William Shellito, the life tenant, died in 1896, never having had a second son. The contention of the plaintiff is that because William never had two sons, the remainder in fee never vested in .the one son who was
The judgment is, therefore, affirmed.