McCormick v. McElligott

Notwithstanding the able and ingenious argument of the learned counsel for plaintiff in error, we are not convinced that the will of Jeremiah McElligott was erroneously construed by the court below.

After giving all his estate, real, personal and mixed, to his wife for life, and creating a trust, as to $5,000, to take effect at her death, in favor of his son Thomas, for life, etc., the testator devised and bequeathed “ the rest, residue and remainder” of his estate remaining after the death of his widow to his “ daughter Hannah, her heirs and assigns.” In the next clause of the will, he orders and directs, in ease his “ said daughter *234Hannah should die without child or children,” that his estate be equally divided between his brother and sisters. The devisee, Hannah McElligott, having come into possession of the residuary estate after the death of her mother, contracted to sell and convey a portion thereof in fee to defendant below. She accordingly executed and tendered him a deed, in due form, for the lot referred to in the case stated, but he refused to accept it and pay the consideration money, on the ground that under the provisions of the will she was not seized of an indefeasible estate of inheritance and was therefore unable to convey such title as he had a right to demand. The learned judge of the Common Pleas, however, held that the testator intended to give his daughter Hannah an absolute estate in fee simple in the property devised to her, provided she survived her mother, to whom he had given a life estate therein; that being so seized of an indefeasible estate, her deed to defendant below, would, under the facts embodied in the case stated, give him a good title in fee, clear of all incumbrances ; and he therefore entered judgment, on the case stated, in her favor. In this we think he was clearly right, for reasons given at length in his opinion sent up with the record. The words “ should die without child or children,” were evidently intended to mean, die without child or children during the lifetime of testator’s widow. This construction accords with the weight of authority. Neither of the specifications of error is sustained.

Judgment affirmed.