Donovan v. Woodworth

Opinion by Mr. Justice Moschzisker, Margaret Marion Donovan took but a life estate in tbe land in question. Tbe part of tbe will essential to a determination of the questions involved in this appeal is quoted in the opinion of the Common Pleas published in connection herewith. The language employed throughout the whole instrument indicates that the testator understood the legal significance of the terms “heirs” and “children” and appreciated the difference in meaning between the two, for wherever there was a clear intention to pass an absolute estate he made use of the word “heirs” or the words “in fee.” In the very item in question, the language used in connection with the devise over to his sons is “to them and their heirs forever.” After giving the property to his daughter “to have and to hold for the term of her natural life,” he adds, “and at her death to vest in her child or children, if any such survive her.” This must be taken to mean child or children living at the time of her death, and not to contemplate an indefinite failure of issue: Smith v. Piper, 231 Pa. 378; and we feel that the word “vest” was used in the sense in which it is construed by the Court below, and not as the equivalent of “descend to.” We conclude that the testator intended his said grandchildren to take from Mm and not through their mother. The two cases chiefly depended upon by the appel [512] lants are distinguishable from the present one. In the first of these, Simpson v. Reed, 205 Pa. 53, the devise was to a daughter “for life only, remainder after her death to her child or children in fee, but if my daughter at the time of her death has neither husband, child or children, she may also dispose of her share or part of said real estate as she sees proper;” and we held that it was plain that the testator intended “the remainder to go to the general or lineal heirs of the first taker.” In the other case, Pifer v. Locke, 205 Pa. 616, the devise was “I will and devise to my daughter H. the house and lot * * * * for and during her natural life, and at her death I devise and bequeath the same unto her children or issue in fee simple.” This also plainly indicated the lineal heirs of the first-taker. The opinion of the learned Court below amply vindicates its decision. The assignment of error is overruled and the judgment is affirmed.