Affolter v. May

Mr. Justice Trttnkey delivered the opinion of the court, January 3d, 1887. The testator directed that his farm be divided into four equal parts, and devised one part to each of his daughters, Elizabeth, [58] Mary, Catharine and Martha. He further devised, “ that the property devised to my daughters, do at their death, all and singular, go to my daughters’ children.” The words of the second and third clauses in the will, in either their ordinary or technical sense, vest in the daughters a life estate, and in their children the remainder in fee. These clauses must be taken together; the meaning is plain, the property shall be divided, each daughter shall take a part in severalty for life, and her children take the remainder. The devise to the children is absolute, without clog, or condition, or provision in case of death of a daughter without having had a child. In Guthrie’s Appeal, 37 Pa. St., 9, the principles applicable to the construction of this will are fully discussed, and it was said that children is as certainly a word of purchase as “ heirs of the body ” are words of limitation, and that' it is as difficult to elevate the word children into a word of limitation, as it is to convert “heirs of the body” into words of personal description. And Justice Strong further remarked: “It is not denied, that the word children may be used by a testator as a nomen collectivism, signifying “ heirs of the body ” but I have found no ease in which it has been held to have been so used, unless the testator has also employed the words “ heirs of the body,” or “issue,” as descriptive of the same objects. Nothing less appears to be sufficient to repel the presumption that the testator did not intend a limitation by the use of this word of purchase.” The fact that the remainder-men were the same persons as would have inherited the estate, was said not to be indicative of the testator’s purpose that they should not take as purchasers. The fourth clause in the will is a conditional bequest of eight hundred dollars by the testator to his grandchild, to be paid in j-early instalments by each of his heirs; and the fifth provides that if any of his heirs endeavor to break his will by litigation they shall forfeit all claim to their inheritance. It is justly urged by the defendant in error that the word heirs in the fourth clause means the same persons as daughters in the first. The testator calls his daughters heirs instead of devisees, and calls the devise an inheritance. That is all that can be adduced to show that the word children is not used in its' true sense. No circumstance without the will tends to show that any word should have a particular meaning with reference to persons or property. Were there anything in the contention that if the daughters should pay a large legacy to the grandchild, it evidences intent that they should take the devise in fee, it does not appear that the legacy was large in relation to1 the value of the life estate. [59] The words “heirs of the body,” or “issue,” are not in this will, nor is there any other word or phrase, relating to the devises, of like meaning. Where the word “heirs” is used it simply means the testator’s daughters, and does not touch the estate devised to them. The heirs are directed to pay the legacy ; that legacy is not charged on real estate, and the entire clause is without reference to any previous or subsequent devise. In view of the whole will, the word “ children ” must be taken in its proper sense, and signifies the persons entitled to the remainder. Judgment reversed, and upon the case stated judgment is now rendered for defendant.