270 Pa. 395 | Pa. | 1921
The one question here involved concerns the interpretation of item 2 of the will of Henry C. Miller, deceased, and, particularly, what estate his daughter Amanda took under it.
Testator died April 9, 1862, survived by his widow, Phoebe, and his daughter, Amanda. The widow died July 16,1891; the daughter died, intestate and without issue, May 19, 1919, having married Joseph C. Swank on Sep-, tember 2,1897.
The will provides: “I give and bequeath unto my beloved wife Phoebe all my real estate and personal property of what kind or nature the same may be during her natural life, and from and immediately after her decease I give and devise the same unto my daughter, and to her heirs, and in case of the death of my daughter Amanda without any heirs, I give and devise the same unto Stephen Miller, son of Charles Miller, deceased.”
Stephen Miller claims that Amanda had a life estate only, and, she having died May 19, 1919, without issue, he is entitled to the remainder in fee; while it is contended by Joseph C. Swank, surviving husband of Amanda, that she, having survived her father and mother, took an absolute estate.
This latter contention the court below correctly sustained. The devise is to Amanda and her heirs. When “heirs” is employed in connection with remaindermen, the rule in Shelley’s Case applies, unless other language in the will clearly demonstrates that the word was not intended in its technical sense, as a term of limitation. The strong presumption arising from the use of technical words of limitation is not easily overcome; it may be rebutted, but it can be done by nothing short of affirmative evidence of a contrary intent, so clear as to leave no reasonable doubt (Harrison v. Harris, 245 Pa 397; see also the opinion of our court in English’s Estate, 270 Pa. 1). Here there is no such evidence; and we agree with the court below that, if, in view of the
The decree is affirmed at cost of appellant.
