Wolford v. Morgenthal , 1879 Pa. LEXIS 290 ( 1879 )

Mr. Justice Mercur

delivered the opinion of the court,

The important question to determine is, what estate did Margaret Morgenthal take by virtue of the deed of 29th May 1828't In consideration of $1500 paid by Frederick Morgenthal, it con.veyed the land in controversy to trustees named, “in trust for the use and benefit of Margaret Morgenthal and her heirs for ever, 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 for ever, after the decease of Frederick Morgenthal, her present husband.” The habendum was “for the use and benefit of the said Margaret Morgenthal and her daughter, Elizabeth Wire, and the children begotten by Frederick Morgenthal, if any, upon the body of the said Margaret Morgenthal, his wife.”

Elizabeth Wire was a daughter of Margaret by a former marriage, and this deed was executed soon after the marriage between the latter and Frederick. Five children were born unto Frederick and Margaret, after the date of the deed, and they are the defendants in error. Frederick died in 1852 and Margaret in 1877. This action of ejectment was brought within a few months after the death of Margaret.

As Elizabeth Wire was “ to be made equal” with the children thereafter to be born, like effect is to be given to the deed, as if Elizabeth had been the lawful child and heir of both Frederick and Margaret. The rule applicable where a deed is made to persons and their children, when they have no child or children living at the time of its execution, does not apply to this case. 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 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: Wager et al. v. Wager et al., 1 S. & R. 374; White v. Williamson, 2 Grant 249; Haskins v. Tate, 1 Casey 249 ; Gernet v. Lynn, 7 Id. 94; Coursey v. Davis, 10 Wright 25.

The Act of 21st April 1846, did not preserve to the persons entitled in remainder the same interest in the proceeds of the sale which they had in the land itself, but struck down their estate and gave it to the tenant for life in fee. Holding as they did a vested remainder in the land, it was beyond legislative power to divest it in that manner, and such effect cannot be given to the act: Norman v. Heist, 5 W. & S. 171; Bumberger v. Clippinger, 5 Id. 311; Shaffer v. Eneu, 4 P. F. Smith 304; Palairet’s Appeal, 17 Id. 479.

The remaining question is whether the right of the defendants in error was barred by the Statute of Limitations ? If it began to run against them during the life of Margaret their title was barred, otherwise not. They did not derive title from her. They took the fee under and by virtue of the same deed that gave her a life-estate. They held a distinct title in succession, and had no right of possession until that succession took effect. They were not precluded from sustaining an action, during the life of Margaret, to recover possession by reason of their minority. They labored under no personal disability. Regardless of minority or coverture, their right of entry or of action did not accrue until her death. The cases of Hunt v. Wall, 25 P. F. Smith 413, and Hogg et al. v. Ashman et al., 2 Norris 80, are not applicable. They rest on personal disability. No such obstacle existed in the present case. Nor did the statute begin to run against them as heirs of Margaret during her life, as in Maus v. Maus, 30 P. F. Smith 194. They did not take as heirs but as purchasers. The authority of Baldridge v. McEarland does not control this case. There the tenant in tail might have barred the remainder, and it was said the freehold merged in the inheritance, and the two were united and executed in possession in the ancestor and formed one estate of inheritance. Therefore it was held that an adverse possession during the life of the tenant in tail would bar a recovery by the issue in tail. Here there was no merger. The two estates were not united. They were separate and distinct. The life-tenant could not bar the-vested remainder created by the deed; nor had she any estate to transmit to her heirs. The court committed no error in confirming the able, report of the referee and in entering judgment thereon. Judgment affirmed.