King v. Frick

• Decision Date: 02 June 1890
• Citation: 135 Pa. 575
• Parties: HARRY B. KING v. JOHN J. FRICK.
• Court: Pennsylvania Supreme Court

Page 575

135 Pa. 575

HARRY B. KING v. JOHN J. FRICK.

Supreme Court of Pennsylvania.

Argued May 21, 1890.

Decided June 2, 1890.

Before PAXSON, C. J., STERRETT, GREEN, CLARK and McCOLLUM, JJ.

APPEAL BY DEFENDANT FROM THE COURT OF COMMON PLEAS OF YORK COUNTY.

No. 387 January Term 1890, Sup. Ct.; court below, No. 46 August Term 1889, C. P.

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Mr. Smyser Williams (with him Mr. R. E. Cochran), for the appellant.

Counsel cited: Newbold v. Boone, 52 Pa. 167; Snively v. Stover, 78 Pa. 489; Stickle's App., 26 Pa. 234; Urich v. Merkel, 81 Pa. 332; Urich's App., 86 Pa. 386; Haldeman v. Haldeman, 40 Pa. 34; Middleswarth v. Blackmore, 74 Pa. 419; Livezey's App., 106 Pa. 205; Deihl v. King, 6 S. & R. 32; Finney's App., 113 Pa. 18; Burd v. Burd, 40 Pa. 182; Still v. Spear, 45 Pa. 170; Bedford's App., 40 Pa. 18; Shreiner's App., 53 Pa. 106.

Mr. A. C. Fulton, for the appellee.

Counsel cited: Caldwell v. Skilton, 13 Pa. 152; Biddle's Est., 28 Pa. 59; Fulton v. Fulton, 2 Gr. 28; Fahrney v. Holsinger, 65 Pa. 388; Mickley's App., 92 Pa. 514; Fitzwater's App., 94 Pa. 141; Smith's App., 23 Pa. 9; Letchworth's App., 30 Pa. 175; Karker's App., 60 Pa. 141.

PER CURIAM:

We think the court below correctly held that the plaintiff, Harry B. King, took a fee in the real estate devised to him by E. A. King, his father. The language of said will, over which the present contention arises, is as follows:

"All my estate, real, personal and mixed, not bequeathed or devised to my said wife as aforesaid, I give, devise, and bequeath to my said son Harry B. King, and to his heirs and assigns, forever, subject to the events and conditions aforesaid. If my said son should die without children, grandchildren or wife living, then his portion of his estate under this will, and any increase thereof, I bequeath and devise as follows: One half thereof to my wife in fee and absolutely, and the remaining half to the next of my kindred in fee and absolutely."

We think it plain, under the authorities, that the words, "die without children, grandchildren or wife living," refer to the death of his son during the lifetime of the testator. As was said by Justice SHARSWOOD in Mickley's App., 92 Pa. 514: "The first taker is always the first object of the testator's bounty; and his absolute estate is not to be cut down to an estate for life, or, what is practically the same thing, to be subjected to an executory gift over, upon the occurrence of the contingency of death, or death without issue, at any future period within the rule against perpetuities, without clear evidence of such an intent;" citing a number of authorities. No such intent appears upon the face of this will. On the contrary, we think the intent of the testator is clear that, if his son survived him, he should take a fee.

Judgment affirmed.