The Supreme Court affirmed the judgment of the Common Pleas on June 2d 1884, in the following opinion:

The learned judge correctly held the plaintiff could not convey the premises by an indefeasible title in fee simple. Under the will of her husband she took a life estate only. It was not enlarged by any subsequent provision in the will, nor by the doubt which may exist as to who will ultimately receive the remainder. There is no averment in the case stated that the testator did not have heirs who would have inherited had he died intestate. We will not presume that to exist which is not averred. If necessary to give a fee to the plaintiff it should be shown as a fact.

Judgment affirmed.