held that no tax haclaccrued;-in other words, that the tax provided for by the act of 1864 did not .accrue until the government was authorized to demand it; and the repeal having occurred before the right of the government was complete, no recovery could be had. Under the original act of 1862, as we have seen, the legal representatives are charged with the tax, and the property is subjected to a lien, from the time of the testator's death. These legacies vested at the death of the testator, and the case is, therefore, untmlJal'rassed by questions that might otberWlse have arisen.
BRITTON and others.
(Circuit Oourt, W. D. Pennsylvania. July 16, 1881.)
WILLS-PRINCIPLES OF CONSTRUCTION-DEVISES-RESIDUARY CLAUSES.
In construing a will, regard must be had to the fundamental principle that every part is to take effect if possible. A tract of land was devised to Eliza Ann, natural daughter of testator's son Nelson, with this proviso: "Provided, that, should the said Eliza Ann die in her minority, and without lawful issue then living, the land hereby devised shall revert and become part of the residue of my estate hereinafter disposed of," The residuary clause devised the residue, real and personal, to the executors, with power to sell real estate, the income from residue to accumulate until the eldest grandchild should attain the age of 21 years, or until the death of testator's son William, whichever should first occur; "then the residue to be equally divided among the grandchildren then living and the children of any who may ue dead leaving issue, said Eliza Ann to be considered a grandchild and to share as such; and in making such division the amount of the devises made to Joseph, son of my son William, and to the said Eliza Ann, according to an estimate of their present value, to be made by thr.ee men to be appointed by my executors or by the orphans' court, to be charged to them or their children as their respective shares." William Thornton, testator's son, died in the year 1852. Eliza Ann married, and in January, 1857, died without issue and under age, Held, that Eli?a Ann took the said tract of land under the special devise thereof and suuject to the conditional limitation expressed in said devise, and not at all by virtue of the residuary clause. Upon the death of Eliza Ann under age, without leaving issue, her estate in said tract of land became extinct. The yaluation directed to be made by the residuary clause 'was merely for the purpose of determining Whether she was entitled to receive anything more out of testator's estate.
Ejectment. Sur motion ex parte defendants for a new trial. The plaintiff, the grandchild of Joseph Thornton, deceased, and only 1>urviving heir, brought this action to recover a tract of land in Fayette county, Pennsylvania, devised by Joseph Thornton to Eliza Ann,
THORN1'ON V. BRIT'fON.
natural daughter of his son Nelson, subject to iimitation. as expressed in the will. Defendants claimed title under conveyance from the surviving husband of Eliza Ann. The cause was tried before Acheson, D. J., and the court submitted to the jury the question whether Eliza Ann dipd under or over the age of 21 years, and on this issue the jury found for the plaintiff, to-wit, that she died under the age of 21 years. The defendants claimed that by the residuary clause of Joseph Thorntorn's will the estate of Eliza Ann, in the land devised to her, was enlarged to a fee, and that upon her death the same descended to her hUBband, under whom defendants held. The provisions of the will are set out in the opinion of the court. George Shiras, Jr., and D. Kaine, for the motiOn. O. E, Boyle, G. W. Minor, and R. B. Petty, contra. ACHESON, D. J. The only ground urged in support of the motion for a new trial is the supposed erroneous instruction of the court in respect to the estate which Eliza Ann Thornton took in the tract of land in controversy under the will of Joseph Thornton, deceased. The testator devised this land to Eliza Ann, the natural daughter of his son Nelson, with this proviso: "Provided, that should the said Eliza AIm die in her minority, and without lawful issue then liVing, the land hereby devised shall revert and become part of the residue of my estate hereinafter disposed of," This devise has been twice considered by the supreme court of Pennsylvania. In Thornton's Executors v. Krepps, 87 Pa. St. 393, that court held that the estate devised to Eliza Ann"Is a/fee-simple, subject to an executory devise; that is, a oonditional limitation by will, which defeats it and substitutes another estate in its stead, if the devisee should die both under age and'without issue then living," More recently, in the unreported case of Britton v. Thornton, the same court held that. "As to this particular tract of land, the estate of Eliza Ann clearly became extinct, by the terms of the will itself, at the time Qf her death without issue." That this is the true construction of the devise, looking alone to the terms of the above-quoted proviso, is too plain for argument. But it is strenuously insisted that this proviso is modified by, and lIlust yield to, the subsequent provisions of the will contaiJ?ed in the residuary clause, in view of the admitted fact that the testator's son Will· iam died before Eliza Ann, to-wit, in the year 1852. The residuary clause begins thus: " Item: All the rest and residue of my estate, not hereinbefore disposed of, I give, devise, and bequeath to my executors."