Walker v. Milligan

45 Pa. 178 | Pa. | 1863

The opinion of the court was delivered,

by

STRONG, J.

We think that Samuel Jones Walker took under the will only an estate for life. The devise of the remainder was to his lawful issue, child or children then living, or to the lawful issue of such child or children as may be then (at the first taker’s decease) dead, share and share alike. The gift was with words of distributive modification, and it was not to all the issue of the devisee for life. The language is descriptive of persons, rather than of the character in which the remainder-men are to take; and the testatrix defined what she meant by the equivocal term “lawful issue,” by using as synonomous witb it the words “ child or children.” By pointing to those who might be living at the decease of the first taker, and by directing distribution, she manifested an intent to use the word issue as meaning child or children, rather than to use the latter words as words of limitation.

Nor is there any implication of an estate tail in the devisee for life, arising from the ulterior limitation to the rightful heirs of the testatrix. That is not a devise over after an indefinite failure of issue, but a gift after a failure of such issue as she had previously described, to wit, child or children, or issue of a child or of children.

In both the particulars mentioned the case is unlike Haldeman v. Haldeman, 4 Wright 29.

The decree is affirmed.