Appeal of Keim

Opinlon, Mr. Justice Sterrett : One of the questions involved in this contention is whether, under the fifth clause of their aunt’s will, Isaac H. Keim and DeBenneville II. Keim took anything more than a life estate in the lot demised to them “ in common during life,..... to be enjoyed by the said Isaac II. Keim and Benneville H. Keim during life, and immediately after their decease, the same shall descend to their children, in equal shares or their heirs, yet so that the children of each only divide the share that belonged to their father.” The question arose thus: On petition of the devisees, in 1856, the Orphans’ Court ordered a private sale of the lot under the act of 1853, and appointed DeBenneville II. Keim trustee to make the sale. He gave bond and sold the lot in pursuance of the order for five thousand five hundred and four dollars and twelve cents (§5,504.12). Both of the devisees after-wards died without issue. Neither of them ever had any children. DeBenneville H. Keim died testate, leaving a widow, the appellant, whom he appointed executrix. In April, 1886, she filed in the. register’s office what. purports to be, “ Account of Sara L. Keim, executrix of DeB. Keim, who was the trustee for the sale of real estate (devised by Esther High in her last will and testament, proved May 5, 1848, to Isaac H. Keim and DeBenneville Keim for life) appointed by the Orphans’ Court of Berks county,” etc. In that account she charges herself “ with the following sums which have become due and payable upon the death of said DeBenneville Keim deceased, according to the will of said Esther High deceased.” [486] “To amount secured in lot of ground,.....in which said DeBenneville Keim had a life interest of one half, and which property was sold by order of the Orphans’ Court for §5,504.12. “ To one half of §5,504.12 . . . §2,752.06. “ To four shares Farmers Bank Stock. 244.00. §2,996.06.”. Total credits claimed 82.50. Showing balance §2,918.56. This account was duly confirmed, and on October 19, 1886, the court ordered §2,667.56, of the balance, representing the fund raised by sale of the lot, etc., to be paid to A. K. Stauffer, administrator de bonis non etc. of Esther High, deceased; and, as appellant represents in her petition hereinafter referred to, the said sum was paid by her to the administrator de bonis non, in pursuance of the order of court. In thus settling the account and distributing the balance, the fund arising from sale of the lot was evidently treated as representing real estate in which appellant’s husband, DeBenneville H. Keim, had merely an estate for life. In May, 1887, appellant presented her petition to the Orphans’ Court, setting forth in substance, inter alia, that under the will of Esther High and the proceedings in said court, her husband was entitled to one half proceeds sale of the lot, absolutely, and not merely to the interest thereon during his life; that, through ignorance of her rights, etc., errors occurred in the statement of her account, as executrix of her deceased husband and in the decree distributing said balance, and praying the court that so much of the account as she alleged to be erroneous may be reviewed and corrected. The demurrer and answer to the petition raised two principal questions: 1st. -Whether the bill of review is not too late after the money has actually been paid to the person entitled thereto in accordance with the decree of the court; and 2d. Whether DeBenneville Keim and his brother took anything more than a life estate in the lot under their aunt’s will, or in the proceeds sale after the land was converted into money by virtue of the proceedings in the Orphans’ Court. [487] As to the latter question, the learned judge of the Orphans’ Court was of opinion that the will gave a life estate in the lot to DeBenneville Keim and his brother, as tenants in common, with remainder to their children respectively ; but, inasmuch as the tenants for life both died without ever having bad any children, the money which represented the land reverted to the estate of the testatrix Esther High, to be distributed under the residuary clause of her will. In this we think he was right. Primarily and generally, the word “ children,” in a will, is a word of purchase, and, while it may be used to signify “ heirs ” or “ heirs of the body,” it will not be so construed unless the testator has employed other words indicative of an intention to use it as a word of limitation. The devise in this case is to “ Isaac H. Keim and DeBenneville Keim in common during life,” to be enjoyed by them “ during life,” thus clearly defining and limiting the estate given to them. The remainder is given to their children in equal shares, etc. The general rale undoubtedly is, that under a devise to one for life, with remainder to his children, the first taker has no freehold of inheritance. The fact that the devisee was without children when the will was made, as well as when it took effect by the death of the testator, does not change the rale : Cote v. Von Bonnhorst, 41 Pa. 243. It is suggested that the use of the word “ descend ” by the testatrix, indicates an intention that the children should take directly from their respective parents, and not under her will, by way of remainder, but we think an examination of the whole will discloses no such intention. In the next preceding clause, after giving a life estate to other two of her nephews, she directs that immediately after the death of either life tenant, “ the undivided half of the one so dying shall go to and be enjoyed in equal shares to his children or to their heirs.” In this, she evidently intended that the remainder thus disposed of should go to the children under the provisions of her will, and not that they should take as heirs of their deceased parent. On the whole, we think there was no error in construing the clause of the will in question. As to the other question, we incline to think the appellee’s demurrer should have been sustained, but the decision of the [488] court being in favor of appellant, the question is not necessarily before us. Neither of the assignments of error is sustained. Decree affirmed, and appeal dismissed at the costs of appellant.