Lammot v. Home of the Merciful Saviour

Opinion by Head, J., The deed of marriage settlement between one Samuel Hazlehurst and Elizabeth, his wife, was executed in 1808. By virtue of it, there was conveyed to trustees named certain real estate “in trust for the sole and separate use of Elizabeth (the wife) with power of appoint [603] ment by will.” In 1809 the trustees and the said Elizabeth conveyed a lot of ground in the City of Philadelphia reserving the annual rent, the ownership of which is the question in controversy between the parties. Elizabeth, the wife of the settlor, died in 1842 during the lifetime of her husband, having first made her will in which she exercised or attempted to exercise the power of appointment created by the deed of settlement. By this will she gave the ground rent in question to her executors in trust for her husband, Samuel, during his life and at the expiration of that life estate, then over to her grandson, James W. Hazlehurst, “for his use during his life and from and after his decease for his lawful issue then living,” etc. The grandson of the testatrix lived until the year 1915, Avhen he died leaving to survive him several children, the plaintiffs in the present action. Their claim rests on the proposition that their father, James, under the will of his grandmother, took an estate in fee tail. It was held by the learned court below that no such estate was created and that the nominal devise over at the death of James contained in the will would violate the law against perpetuities. His Honor, Judge Ferguson, in the court beloAV, filed a learned opinion which, as we view it, furnishes convincing reasons for the conclusion reached. After discussing the case of Eichelberger v. Barnitz, 9 Watts 447, the learned judge says: “In the case at bar the will provides for the gift over in trust for his issue living at the time of his death. In our opinion this takes the case out of the general rule stated in Eichelberger v. Barnitz and brings it within the exception, because a particular time is fixed (that is the time of the death of James) and definite persons as a Class are selected (that is the issue living at that time). The estate taken by James was therefore not an estate tail. If it was not, his children could be held to take only by a disregard of the rule against perpetuities.” The opinion then proceeds by a line of reasoning to which we can see [604] no successful answer to establish the proposition above stated. Being satisfied as we are the conclusion reached by the court below was correct, we shall not attempt to elaborate further the interesting question presented in an admirable way in the brief of the learned counsel for ap: pellants. The assignments of error are overruled. Judgment affirmed.