Voelker v. Edgar

Opinion by

Williams, J.,

The will of Mary Voelker provides, inter alia, as follows : “2. I direct that all my Real Esteat and Personal property and Mixed Whatsoever it may consist of ware-soever it may be found to My Son George S. Volker at age of 21 years. 3. if my Son George S. Volker should get married and have Ohildred at his death divided between his Ohildred and One Thousand Dollar to my Nephew Lauanc Fay and further if my Son has no Childen Living the entire Estate to my Sister Phillas Fay at the death of my Sister Phillas Fay the balanc of all my Estates to- my nephew Lawanc Fay.”

George S. Voelker became of age in October, 1912, was married December 7, 1914, and has by that marriage a daughter living, Mary E. Voelker. Lawrence and Phillas Fay have conveyed all their rights to George S. Voelker, who sought to sell the interest in certain real estate devised by the will of Mary Voelker above recited.

The case stated between the parties provided, that if the said will of Mary Voelker vested a fee simple title in her son, George S. Voelker, then judgment for $200 was to be entered for the plaintiff, otherwise for the defendant.

The sole question is: Did the will vest title in fee simple in George S. Voelker? We think not. The will of Mary Voelker provided that if George S. Voelker should marry and have children, the estate, at his death, should be divided among them. He is married and now has one child. She has a vested remainder, as will any other children that may be born to him hereafter. This is the clear intention of the testatrix as shown by her will. The estates of the father and the child born, or children that may be born, are not of the same quality. Therefore, the rule in Shelley’s Case does not apply: Bailey’s Estate, 64 Pa. Superior Ct. 17.

The judgment is affirmed.