Mitchell v. Long, 80 Pa. 516

Mitchell v. Long

80 Pa. 516 | Pa. | 1877

Mr. Justice Williams

delivered the opinion of the court,

*518The plaintiffs’ grandfather died seised of the land for which the ejectment was brought, and by his last will, dated April 18th 1838, and proved June 7 th 1838, devised it as follows: “Also I give unto my third son, John MeOonahey, all that lot of'land lying in the Second District of Donation Lands in Mahoning township, with all the improvements thereon, containing 200 acres and allowance, and mentioned in the general plan of said district, 1827, to him, his wife and children, during their natural lives, if he should ever have any, if not he shall have it all himself.”

At the death of the testator his son John was a minor and unmarried. He took possession of the land under the will, married and had children, and continued to reside thereon with his family until his death in 1869. He left surviving him a widow, the defendant in this case, and three children, of whom the plaintiff is one. The widow is in the occupancy of the land, and claims the right to its exclusive possession during her life. Has the plaintiff then any interest or estate in the land to which she has the right of present possession and enjoyment ? There can be no doubt that the devise of the land to the testator’s son John, his wife and children, during their natural lives, if he should have any, was a valid gift, and that in the contingency which happened, they took each a life estate in the land as tenants in common. The devise to the wife and children was contingent. As to the wife it depended on the contingency of marriage, and as to the children on the contingency of birth. It was as to each an executory or future devise, on a contingency which must happen, if at all, during the life of John, and therefore the contingency Avas not too remote. It was in effect a devise of the lands to John until he should have a Avife and children, and then a devise to him and them during their natural lives. The estate vested in the wife upon her marriage, and in the children at their birth: 1 Jarman on Wills 240-1, 285; Smith on Ex. Int., § 711; Flourney v. Johnson, 7 B. Mon. 693. If the devise was valid, the widow and children have each a life estate in the land, and the right to its present possession and enjoyment. There is nothing in the language of the devise showing that it was the testator’s intention that the estate given to the children should not vest in possession and enjoyment until after the termination of the estate given to their parents ; the land was not given to John and his wife during their natural lives, and after their death to their children for life, but to John, his wife and children, during their natural lives; and it is clear that under the gift they took concurrent, and not successive life estates in the land. The plaintiffs are therefore entitled to judgment for their share of the land upon the case stated, being the only question properly presented by the record.

Judgment reversed-and judgment for the plaintiffs to be entered by the prothonotary in conformity Avith this opinion.