McCullough v. Johnetta Coal Co.

Opinion by

Mb. Justice Brown,

After the executor had purchased the land in pursuance of the direction in the fifth clause of the will of the testatrix her son became the equitable owner of it, and, if of a fee simple in it, the title proffered to the appellant is good. By the succeeding clause there is a devise over to the “ brothers and sisters or other heirs ” of the testatrix, if the son should “ die without issue.” That under the settled rule of property in relation to land devised the son took an estate tail, cannot be questioned. By the act of 1855 it became a fee. But apart from any rule of construction, the manifest intention of the mother was that, whenever her son should have issue, the land should become his in fee simple. Her words are, “ But should my son have heirs or issue, then this land shall be his and his heirs; ” that is, in the event of issue born to him, the land is to be his, and from him, and not from her, his heirs are to inherit it. A child was born to him, and the contingency arose which his mother said should make him the absolute owner of the land. The question raised on this appeal is not open to discussion.

Judgment affirmed.