Hinkson v. Lees

Opinion by Mr. Justice McCollum, This is an appeal from a judgment entered against the defendant in a case stated. It involves the construction of the eighth clause of the will of John L. Pearson, deceased, of whose estate the defendant is trustee. By the clause in question the testator devised the real estate therein described to Perry C. Pike during his life and after his death “ to his lawful child or children and to their heirs and assigns.” As it appears from the case stated that Perry. C. Pike died leaving lawful issue, and that his sons, his daughter, and his granddaughter attained the age of twenty-one years, the principal question for our determination is when did the estate in remainder vest in his children. The defendant claims that it did not vest “ until after his death,” and the plaintiff claims that as Perry C. Pike had no children at the death of the testator it was contingent until tbe bii'th of a child to him, at which time it vested, subject to open and let in after born children and subject also to a contingency which might divest it. It seems to us that the plaintiff’s claim accords with the true interpretation of the devise and the decisions in like cases: Keller v. Lees, 176 Pa. 402; Blanchard v. Blanchard, 1 Allen (Mass.), 227. But it makes no difference in the result in this case whether the estate vested in the children at their birth or [232] on their attaining the age of twenty-one years. The contingency on the happening of which the estate might have passed, under the will, to the children of Price or of Smith was the death of the life tenant “ without leaving lawful issue to survive him, or leaving such issue who should not live to the age of twenty-one years, nor their lawful issue.” The contingency did not occur and, therefore, the only persons now interested in the estate or in the question when the remainder vested are the children of the life tenant and their heirs and assigns. Perry C. Pike had three children who in his lifetime attained the age of twenty-one years. One of them, Pearson Pike, died in the lifetime of his father. He left to survive him a daughter who attained full age and died before the life tenant. The fund created by the sale, under the Price act, of the land devised as aforesaid, was in existence in the lifetime of Pearson Pike, and he was receiving, interest by direction of his father on $5,000 of it. Tire fund was a substitute for the land sold. What was the interest of Pearson Pike in this fund? We think it was a vested interest which could not be divested, if at all, except by the occurrence of the contingency on which the devise over depended. The extent of the interest could not have been definitely ascertained at his death because it might be reduced by the birth of other children entitled to share in the fund. It was, however, .a descendible and devisable interest. The devise in question was to the lawful child or children of the life tenant and to their heirs and assigns. It was a devise to the whole class without restriction to the member or members who survived him. It was unlike the devise in any case cited by the defendant to sustain his contention that the interest of the children of Perry C. Pike did not vest until after his death. The contest for the fund being virtually between the devisee of the daughter of Pearson Pike and the surviving son and daughter of Perry C. Pike, there is no room for the application of the rule or principle for which Stewart’s Estate, 147 Pa. 383, is cited as authority. For the reasons above - stated we concur in the conclusion of the learned court below that the plaintiff is entitled to one third of the principal, and one sixth of the income, as defined by the case stated. Judgment affirmed.