Oyster v. Knull , 137 Pa. 448 ( 1890 )

Opinion,

Mr. Justice Sterrett:

The only question presented in this case stated is whether the plaintiff, under his father’s will, took a freehold of inheritance or only a life-estate in the Mount Airy farm.

It appears that in June, 1865, the testator, Simon Oyster, ■made his. will, and in less than two years thereafter died seised ■of certain real estate, leaving to survive him a widow, Margaretta Oyster, and five children, one of whom, the plaintiff, then about ten years old, has ever since remained unmarried and without children. The operative clause of his will is as follows:

“ 4. I give and bequeath to my son Napoleon Kiever Oyster my Mount Airy farm, containing one hundred and twenty-five acres of land with all the improvements thereon in Susquehanna township, adjoining the city of Harrisburg, with a three-story brick house, No. 3 in South street and lot thereon, for his support, and if he should be spared to have family, I desire the above estate to go to use of his children and ten shares of Plar-Tisburg Bridge stock and twenty shares of my Harrisburg Bank for his use.”

The learned president of the Common Pleas came to the conclusion that the testator’s general intention was to give the plaintiff an estate in fee, and he accordingly entered judgment on the case stated in his favor. In so doing we think there was error. It cannot be seriously doubted that the word “ children,” in the clause above quoted, was used by the tes'tator as a word of purchase, and not of limitation. That word in a will is primarily and generally a word of purchase; and, while it may be used to signify “heirs,” or “heirs of the body,” it will not be so construed, unless the testator has employed other words indicative of an intention to use it as a word of limitation. There appears to be nothing in the will to indicate any such intention. The testator, it is true, used the words “ heirs ” and “ children ” interchangeably, but in doing so he evidently in each case meant “ children.” Nor can anything be predicated of tbe facts that plaintiff was only ten years of age when his father died, and has since remained unmarried and childless : Cote v. VonBonnhorst, 41 Pa. 243.

The testator gave his Mount Airy farm, etc., to plaintiff “ for his support,” thereby indicating that a life-estate was intended ; and then declares, “ if he should be spared to have family, I desire the above estate to go to use of his children.” The word “ desire,” thus employed bjr the testator, is not merely precatory. It is as mandatory as if the words “ I will,” or “ I order and direct,” had been used: Fox’s App., 99 Pa. 382. Under another clause in the same will the question heretofore arose whether the devisee therein took an estate in fee or for life only. In an opinion by the present Chief Justice, this court held that the devise to the first taker was for life only: Oyster v. Oyster, 100 Pa. 538. The phraseology of that clause differs from that of the one now under consideration, but while that is so, and the language of the former is stronger than that of the latter, the difference appears to be in phraseology rather than in meaning. '

As already stated, the words “ I desire,” etc., as employed by the testator, are equivalent to the words “I will and direct.” The clause in question may then be read thus, “ I will that the above estate shall go to the use of his children.” Coupling that with the preceding words of same clause, “ for his support,” the interest of plaintiff as first taker would appear to be limited to a life-estate. While it cannot be said that the construction we have adopted is entirely free from doubt, we are of opinion that judgment on the case stated should be entered in favor of defendant.

Judgment reversed, and judgment on the case stated is now entered in favor of the defendant.