Kelley v. Kelley

Citations

• 182 Pa. 131
• 37 A. 830
• 1897 Pa. LEXIS 781

Syllabus

<p>Will — Vested and contingent estates — Devise.</p> <p>Testator by his will gave to his two grandsons J. and G., “at the death of their mother, H.,” a certain farm, describing it. He further directed as follows : “ I also further ordain and bequeath that my daughter H. shall have, hold and possess the whole of the above farm, with all the rights and title I now possess, during the term of her natural life; then and not till then shall my grandchildren, J. and G. aforesaid, possess and enjoy the same j and furthermore, if in case either of my grandchildren, J. and G., shall die before their mother, or before they arrive at the age of twenty-one years, then the one living shall possess the whole of the above farm, and in case both die before their mother, or before they arrive at the age of twenty-one years, leaving no issue, then I ordain and bequeath the whole of the above described properly,” etc. J. died before his mother, at the age of thirty-five years, leaving a widow to whom he was married after he came of age, and children. H. subsequently died, and her death was followed by that of G. who left a widow and children in possession of the farm. Ejectment was brought by the widow and children oí J. Held, (1) that J. took a vested estate in remainder subject to his mother’s life estate; (2) that plaintiffs were entitled to recover one half interest in the property.</p> <p>Misjoinder of parties first urged on appeal — Practice, S. G.</p> <p>Where no question is raised in the court below, misjoinder of parties cannot be urged on appeal, after a trial on the merits.</p> <p>Ejectment — Sheriff's return — Practice—-Possess-ion.</p> <p>In an action of ejectment where the plaintiff’s writ averred a wrongful detention of possession from plaintiffs, and the sheriff returned the writ as served, and the defendants pleaded the general issue, the plaintiffs are not bound to prove affirmatively actual ouster, but they may stand on the presumption which the act of assembly rai