Rudebaugh v. Rudebaugh

The opinion of the court was delivered, by Read, J. This is an action of ejectment for 106 acres of land in North Huntington township, in which it was agreed that certain facts should be submitted to the court, to be considered in the nature of a special verdict, with leave to either party to sue out a writ of error. The court below, on the stated case, entered judgment for the plaintiffs generally, to which this writ of error was taken. The only question argued before us was the construction of the will of John Rudebaugh, the elder, and that was whether John Rudebaugh, the son, took a life estate in the shares of his children or not. If he took a life estate, then it was agreed on both sides that the judgment below was wrong. The testator devised and bequeathed to his wife Elizabeth all his real estate whereon he was then living during her natural life, and also all his personal estate to her during her natural life, “ and at her decease to return back and be equally divided between my son John’s children and my daughter Lydia’s, intermarried with Martin Funk, their children; I give, devise and bequeath the same to their heirs and assigns, subject to the following restrictions, viz.: that my son John shall have the use of his children’s share during his natural life.” The devise of use during his natural life is a devise of the land to him for life, with a vested remainder in his children. John, the son, was married three times. By his first wife he had children born before the death of the testator and of his widow, who are the plaintiffs in this case, and three children born after the death of the testator and of his widow. The defendants and Mary Ellen, married to Demore, are the children of John, the son, by his third wife, after the death of testator and of his widow, and before the death of John, the son. There were, therefore, two life estates, that of the widow and that of the son, and therefore the term children of John included, according to all the authorities, all John’s children born before his death: 2 Jarman on Wills 55, 56; Minnig v. Batdorff, 5 Barr 505. The judgment, therefore, is reversed, and in conformity to the case stated, judgment is entered for the plaintiffs, including Joseph, Simon Reuben, Sarah Jane, for the undivided twelve-nineteenth parts; and as to the residue for the defendants, including Mary Ellen, married to Demore, but who is not one .of the defendants.