Estate of Miller , 145 Pa. 561 ( 1891 )

Opinion,

Mb. Justice Stebbett .

The single question presented by this record is whether the limitation over at the death of Albert Myers, was upon a definite or an indefinite failure of issue. If the contingency upon which it was made dependent might happen indefinitely after his death, then he had an absolute estate; but, if it must happen at or before, the substituted legatees will take. Thus a gift to one, and “ if he die without issue,” or “ on failure of issue,” or “ for want of issue,” or “ without leaving issue,” looks to an indefinite failure: Eichelberger v. Barnitz, 9 W. 447.

But the courts have seized with avidity- on any circumstance, however trivial, denoting an intention to fix the contingency at the time of the death : Seibert v. Butz, 9 W. 490. And accordingly, in Synder’s App., 95 Pa. 174, where the request was to H., and, if he should “ at any time die without issue, I then give and bequeath ” over to all testator’s children, it was held that the use of the words “ at any time ” and “ then ” imported a definite failure. So, when the time at which the devise over is to take effect is expressly or impliedly limited to a particular period within a life or lives in being and twenty-one years after, or if he die without leaving issue behind him, or leaving issue at the time of his decease, or if the devise over be of a life-estate, which implies necessarily that such devisee may outlive the first estate, the testator has been considered as meaning a failure of issue within a fixed period, and not an indefinite failure : Eichelberger v. Barnitz, supra.

It is very evident that in the present case a definite failure of issue was intended. The contingency upon which the gift over is dependent must, by the very terms of the will, happen “ before ” the death of Albert. The testator declared in the same sentence, and immediately following the gift to him, “but if.Albert should die before he has any heirs, then his share shall revert back among my other heirs.” When Albert died, “ then ” it must certainly be known and ascertained whether or not he had any “heirs.” The word “heirs” was not used or intended to be used as a word of art, but in the sense of children ; for, nemo est hseres viventis. It follows that the assignments of error are sustained.

Decree reversed, at the costs of the appellees, and record remitted, with instructions to distribute the fund in accordance with this opinion.