Ray v. Alexander

Opinion, Mb. Justice Stebbett : This case is ruled by Eichelberger v. Barnitz, 9 W. 447; Hackney v. Tracy, 137 Pa. 53, and that line of cases. In the fourth item of his will the testator, Samuel Alexander, bequeathed and devised to his daughter, Elizabeth Alexander, “ all the rest and residue of my estate, real, personal, and mixed,.....to be held by her in fee-simple: Provided, nevertheless, that in case she should die without leaving lawful issue, then it is my will that the property above devised to her shall be equally divided amongst the children of my brother, Dr. J. W. Alexander.” In apt words, the devise over to the beneficial plaintiff and other children of Dr. J. W. Alexander, is made to depend upon the death of testator’s daughter Elizabeth, “without leaving lawful issue,” which, according to-the established in [248] terpretation. of such expressions in a will, means a .general, indefinite failure of issue, and not a failure at the death of the first taker. There is nothing on the face of the will to change the technical meaning of the word “ issue,” in the phrase above quoted, or to show that the testator meant “ children,” or issue living at a particular period, instead of the whole line of succession. It follows that Elizabeth Alexander took an estate in fee-tail, which, under the operation of the act of 1855, was enlarged to a fee-simple, and thus became subject to her testamentary disposition. For these and other reasons, more fully stated in the opinion of the court below, there was no error in entering judgment, on the case stated, in favor of the defendants. Judgment affirmed.