Coles v. Ayres

Citations

• 156 Pa. 197
• 27 A. 375
• 1893 Pa. LEXIS 1329

Syllabus

<p>Will — “ Die without heirs” or issue — Fee.</p> <p>The words “die without issue,” as the contingency upon which a new devisee is to take after a previous devise in fee, means die in the lifetime of the testator, and, if the®devisee survives, the estate he takes is absolute.</p> <p>In a devise to children, and, if they should die without heirs, over-to nephews and nieces, “ heirs ” means issue, for the devise over would have been included in the original devise if the word “heirs” had been meant in its proper sense.</p> <p>Will — Fee simple estate — Defeat of, by subsequent provision in will — Ex-ecutory devise.</p> <p>A fee presumed by act of 1833, as well as a fee expressly given by will, can only be defeated by a subsequent provision which shows clearly that the testator intended not to give a fee, though he used language which, standing alone, would have been effective for that purpose.</p> <p>Testator devised and bequeathed all the rest, residue and remainder of his property to his “ children to be held in common by them, or to be equally divided between them.” By a subsequent clause he directed as follows: “ If both my children should die intestate and without lawful heirs I direct that all my estate given by this will to my children and intended for them if they should live shall at the death of the last child be divided into equal parts, one part or moiety of which I give, devise and bequeath in fee simple to my nephews and nieces,” etc. Testator had two children living at the date of the will and at his own decease. Held, that the language of the latter clause would be sufficient to sustain an executory devise, if such was the testator’s intent; but such intent cannot be presumed, and, as it does not appear from the words, the children took a fee simple under the will.</p>