219 Pa. 248 | Pa. | 1908
The devises to testator’s children, one-half to the son Oliver “ and his heirs and assigns ” and the other half to the daughter “ and her heirs and assigns,” were in fee and the only question arises under the clause following, viz.:
“ But if either of my said children shall die without leaving lawful issue living at the time of his or her death, then and in that event, the part or share of the child so dying shall go to and vest in the survivor and his or her heirs and assigns. And if both of my said children shall die without leaving lawful issue living at the time of the death of the survivor of them, then in that event, the shares or estates of said children shall go to and become vested in my nephew Montieth Gilpin and his heirs and assigns. But if it shall so happen that my said nephew Montieth Gilpin shall also die without leaving lawful issue living at the time of his death, then and in that event, I give, devise and bequeath the said lands, tenements, property and estate to my sister-in-law Elizabeth McConnell, and her heirs and assigns.”
The general rule is that after an absolute devise in fee a provision that in case of the death of the devisee without issue, or without issue living at the, time of his death, or similar phrase, then over to another, is not a limitation or curtailment of the prior devise but is alternative or substitutionary and to take effect only on the death of the first devisee in the lifetime of the testator : Morrison v. Truby, 145 Pa. 540; McAlpin’s Estate, 211 Pa. 26. There is nothing in the will to indicate an actual intent of this testator inconsistent with the rule.
Judgment affirmed.