Nesbit v. Skelding

Opinion by Mr. Justice Elkin, The single question presented by this record is whether William E. Nesbit, father of the appellants, under the will of David E. Nesbit, deceased, took a fee simple or life estate. The language of the will is as follows: “ I give and bequeath to my son, William E. Nesbit, and his heirs after him, all my real estate, consisting of a farm and appurtenances in the township aforesaid.” It is conceded that the word “ heirs ” as used in this as well as every-other will, is primarily a word of limitation, and will be so construed, unless it is so plain as to preclude misunderstanding that the testator intended to use it in other than its [489] ordinary legal sense. We have searched this record in vain to discover such facts or circumstances as would have the effect of cutting down the fee simple estate which is presumptively created by the use of the word “ heirs ” in the devise. It is argued by the learned counsel for the appellants that the testator by use of the words “ his heirs after him ” intended to limit the first estate to the life of William E. Nesbitand at his death to vest it absolutely in his children. This contention is based on the theory that the word “ heirs ” is used in the sense of “ children.” Our attention has not been called to any case that would support this position. There is no provision of the will, nor any circumstances shown by the record, to justify a departure from the settled rule of construction. There is no distinction, legal or grammatical, between the words “ after him,” or “ after his death,” or “ after his decease.” The use of the words “ after him,” must be construed to mean the same as if the provisions of the will read “ after his death,” or “ after his decease.” In a legal sense the devisee could have no heirs while he lived, they became his heirs “ after him,” that is, “ after his decease.” This case is ruled in principle by Reifsnyder v. Hunter, 19 Pa. 41; Price v. Taylor, 28 Pa. 95; Criswell’s Appeal, 41 Pa. 288 ; Hiester v. Yerger, 166 Pa. 445. Judgment affirmed.