Bailey's Estate ( 1916 )

Opinion by

Williams, J.,

The six assignments of error will be considered together, as they raise but a single question, viz: What estate did the appellant take under his mother’s will? The answer must be found in the second and sixth clauses of the will, which are as follows: “Second. I give, bequeath and devise to my son, Francis Bay Bailey all income of all my real estate, Bonds, Mortgages, Notes, etc., during his natural lifetime, at his death all my real estate, Bonds, Mortgages, Notes, etc., shall be sold within two years and all moneys received from sale of such real estate, Bonds, Mortgages, Notes, etc., together with whatever money I may have shall be divided equally between the children of Francis Bay Bailey, or their heirs, if children be not living. Provided, If Francis Bay Bailey has no heirs living at time of his death then all moneys received as above stated shall be divided equally share and share alike between my brothers and sisters and their heirs that are living at time of death of Francis Kay Bailey.” “Sixth. Should my executor at any time think best to sell any Bonds, Mortgages, Notes, etc., for safety of value of same he shall have power so to do, he shall have charge of all property until death of Francis Ray Bailey.”

From a reading of the clauses the only conclusion is, that the mother intended to give to the appellant a life estate and no moTe. Has she then, by the use of technical words, brought into operation the rule in Shelley’s Case. We think not. The devise is to Francis for life and at his death to his children or their heirs. It is to be noted that it is a gift to the heirs of the children and not to the heirs of Francis.

Nothing further need be added to the opinion of the learned court below except, that as the estates of the father and the children are not of the same quality, the rule in Shelley’s Case cannot apply: Eshbach’s Estate, 197 Pa. 153; Xander v. Easton Trust Co., 217 Pa. 485.

The appeal is dismissed.