Hague v. Hague , 161 Pa. 643 ( 1894 )

Opinion by

Mr. Justice Green,

Although the grantees in the deed are designated as “ Sarah Jane Hague and her children,” which .if the children were strangers would constitute them all tenants in common, it must be admitted that the weight of authority holds the mother to be only a tenant for life. Shirlock v. Shirlock, 5 Pa. 367, which held the mother and children to be tenants in common, has never been followed, and has been several times questioned and departed from in subsequent cases, and cannot now be regarded as authority.

In Coursey v. Davis, 46 Pa. 25, the subject was fully considered in an elaborate and exhaustive opinion by Mr. Justice Read, in which the ruling in Shirlock v. Shirlock was distinctly repudiated. The words of the grant in Coursey v. Davis were, “ to the said Mildred Ann Davis and her children exclusively, and their heirs and assigns, to have and to hold the premises to the said Mildred Ann Davis and to her children exclusively and their heirs and assigns,” and we held that these words vested in Mildred Ann Davis a life estate only, with remainder in fee to her children as a class, so that those in being at the date of the deed, as well as those subsequently born, would be entitled to take in the distribution, on the termination of the life estate at her death. We can see no material difference between the words of the grant in that case and in this.

In White v. Williamson, 2 Grant’s Gases, 249, we held that a deed to A “ for the use of the wife and children of B,” conveys a life estate to the wife of B with remainder to her children; and the children take as a class, and not individually, embracing children in esse and those thereafter born. Mr. Justice Strong, in the course of'the opinion, referring to the declaration of trust, said : “ Under that declaration what interest did she take ? Was it a life estate, with remainder to her children, or was it a tenancy in common with them? The court below thought it was the former and so instructed the jury. We incline to concur in that opinion. Under that declaration the children take as a class, not individually. The grant is not to the children then in esse, but it embraced those after born. It was the gift of a father for the benefit of his descendants. If the time of the distribution was the date of the gift, then after-born children must have been excluded; for where a gift is to a class, the rule is, that the time of distribution defines the individuals who constitute the class.”

In Wolford v. Morgenthal, 91 Pa. 30, the words of the grant were, to trustees' named, “ in trust for the use and benefit of Margaret Morgenthal and her heirs forever, that is the children, if any, begotten by Frederick Morgenthal; and her daughter, Elizabeth Wire, is to be made equal, to be for them and their heirs forever, after the decease of Frederick Morgenthal, her present husband.” Elizabeth Wire was a daughter of Margaret by a former marriage. Mr. Justice Mercur, delivering the opinion, said : “ The same estate vested in Elizabeth as if she had been begotten in lawful wedlock by Frederick upon the body of Margaret. It therefore follows that the word children is not a word of limitation but a word of purchase : Melsheimer v. Gross, 8 P. F. Smith, 412. What then is the estate taken by Margaret, and by the children respectively, including Elizabeth ? The answer is, the mother took a life estate with remainder in fee to the children as a class. It was a vested remainder in fee in Elizabeth, who was living at the time of the execution of the deed, and opened to let in the after-born children as their births respectively took place.” Citing many authorities. In Coursey v. Davis, supra, also, we decided that after-born children were let in until the death of the mother.

It will be perceived that in all the foregoing cases it was held that the mother took only an estate for life and that the children took the fee. And, in determining what children were embraced in these several grants, we held, in all, that the time of distribution was the death of the mother, and that all after-born children up to that time were entitled to participate.

The same rule was held in Haskins v. Tate, 25 Pa. 249, where a testator devised as follows : “ I further will that the plantation I bought of my son Robert lying near Hills Mill shall be equally divided amongst my son Robert’s children he and them enjoying the benefits of it whilst he lives.” We held that children born after the death of testator, and living at the death of Robert, participated equally with those born before. Lowrie, J., said: “We think this case falls within the rule that on a limitation to a class, which may include persons not yet born, the time of the distribution defines the members that are to constitute the class.”

To the same effect is Gernet v. Lynn, 81 Pa. 94.

The foregoing authorities indicate clearly that the decree recommended by the master and adopted by the court below was entirely correct and must be affirmed.

Decree affirmed and appeal dismissed at the cost of the appellants.