Smith v. Coyle

The judgment of the court was entered, January 15th 1877, Per Curiam. The failure of issue of Sarah Powell Buckley was definite, and therefore her issue living at her death took as purchasers and as tenants in common, under the will of Deborah Morris. There being such issue there was no failure; and the estate actually vested in them subject to the payment of certain legacies, one of which was perpetual, and therefore discloses the intention of the testator to give them a fee. The devise to Jonathan Jones was evidently substitutionary and not contingent on a general or indefinite failure of issue. He was to take only in the event of Sarah P. Buckley’s death without issue — evidently meaning the failure just before recited which was to admit the living issue to the estate; in other ivords, he was to take in.the event of a definite failure of issue. This of course was the substitution of one estate for another, founded upon the same contingency. If there were issue living at Mrs. Buckley’s death they Avere to take; if none, then Jonathan Jones was to take.' Evidently the testatrix considered the estate once vested in the issue a fixed and permanent one, or she would not have provided for the payment of a perpetual legacy. Taking all parts of the item together Ave think there is no doubt a fee vested in the issue living at the death of Mrs. Buckley. Decree affirmed AYith costs to be paid by the appellant, and the appeal is dismissed.