2 Grant 249 | Pa. | 1858
The opinion of the court was delivered, November 22,1858, by
— Numerous errors have been assigned to this record, but the view which we take of the case, renders a separate discussion of each unnecessary. We are of opinion, that the title to that'moiety of the land in dispute, which was con
Then what title did the plaintiffs show to the other half? Their father, through whom they claimed, was a son of the defendant. Their claim is, that at the time of his death, he was a tenant in common with his mother, and that she had ousted him of the possession. We discover no evidence in the case from which the jury would have been warranted in finding an ouster, even if Mrs. Weaver and her son, were tenants in common. An ouster of one tenant in common by his co-tenant is not to be presumed. It must be evidenced by some unequivocal act or acts, irreconcilable with joint tenure. We have- sought in vain through this record for any such evidence. This is all that is needed to warrant an affirmance of the judgment.
But it is. by no means clear, that Henry S. Weaver and his mother, were tenants in common of the land. The title to this
We need not stop to prove that the deed of Benjamin F. Weaver, neither added to, nor diminished the interest which the defendant had under the first declaration of trust made by Jacob Weaver. Under that declaration, what interest did she take? Was it a life estate, with remainder to her children, or was it a tenancy in common with them ? The court below thought it was the former, and so instructed the jury. We incline to concur in that opinion. Under that declaration, the children take as a class, not individually. The grant is not to the children then in esse, but it embraced those after born. It was a gift of a father for the benefit of his descendants. If the time of the distribution was the date of the gift, then after-born children must have been excluded; for, where a gift is to a class, the rule is, that the time of distribution defines the individuals who constitute the class. But if the word “ children” is to be regarded as a word of purchase, and not of limitation, as doubtless it is, it is difficult to suppose that the intent of the donor, was to give to the mother and the children, then living, an undivided fee simple in the land, to each an equal interest. Yet such must have been the effect of the grant, if the construction for which the plaintiffs contend be correct. The presumption always is, in cases of conveyances by will or deed, from an ancestor to his decendants, which are gifts, not sales, that they were made in view of the intestate laws, and consequently those nearest in kin are to be preferred, unless the words of the will, or gift, forbid such a construction. Peter Horbach, gave the money for Mrs. Weaver and her children. The title to the land follows the money which purchased it. We think, therefore, that under the gift of her father, and the original declaration of trust by Jacob Weaver, Mrs. Weaver took a life estate in one moiety of the land, with remainder to all her children then born, and that might thereafter be born. The plaintiffs had consequently no right to possession during the life of Mrs. Weaver.
Judgment affirmed.