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213 Pa. 487

Nesbit v. Skelding

Supreme Court of Pennsylvania

Decided January 2, 1906

Supreme Court of Pennsylvania · decided 1906-01-02

<p>Appeal, No. 144, Oct. T., 1905, by plaintiff, from judgment of C. P. No. 2, Allegheny Co., July T., 1905, No. 322, on verdict for defendant in case of David Frank Russell Nesbit, Thomas McFadden Nesbit and James Meek Nesbit v. Ellen P. Skelding.</p> <p>Ejectment for land in Moon township. Before Young, J.</p> <p>From the record it appeared that the land in question had been devised to William E. Nesbit, father of the plaintiffs, by the will of David E. Nesbit, the material portion of which is quoted.in the opinion of the Supreme Court. The defendant claimed title under foreclosure proceedings on a mortgage made by William E. Nesbit in his lifetime. The court construed the will as giving William E. Nesbit an estate hi fee, and directed a verdict for the defendant.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Error assigned was in giving instructions for defendant.</p>

Cited by 1 later decisions — most recently March 1953

1 state decisions

Relies on Criswell's Appeal · Reifsnyder v. Hunter · Price v. Taylor

Good law ✅— No negative treatment on recordhow we know

Affirmed · Decided 1906-01-02

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¶1Opinion by

Mr. Justice Elkin,

¶2The single question presented by this record is whether William E. Nesbit, father of the appellants, under the will of David E. Nesbit, deceased, took a fee simple or life estate. The language of the will is as follows: “ I give and bequeath to my son, William E. Nesbit, and his heirs after him, all my real estate, consisting of a farm and appurtenances in the township aforesaid.”

¶3It is conceded that the word “ heirs ” as used in this as well as every-other will, is primarily a word of limitation, and will be so construed, unless it is so plain as to preclude misunderstanding that the testator intended to use it in other than its *489ordinary legal sense. We have searched this record in vain to discover such facts or circumstances as would have the effect of cutting down the fee simple estate which is presumptively created by the use of the word “ heirs ” in the devise.

¶4It is argued by the learned counsel for the appellants that the testator by use of the words “ his heirs after him ” intended to limit the first estate to the life of William E. Nesbitand at his death to vest it absolutely in his children. This contention is based on the theory that the word “ heirs ” is used in the sense of “ children.”

¶5Our attention has not been called to any case that would support this position. There is no provision of the will, nor any circumstances shown by the record, to justify a departure from the settled rule of construction. There is no distinction, legal or grammatical, between the words “ after him,” or “ after his death,” or “ after his decease.” The use of the words “ after him,” must be construed to mean the same as if the provisions of the will read “ after his death,” or “ after his decease.” In a legal sense the devisee could have no heirs while he lived, they became his heirs “ after him,” that is, “ after his decease.” This case is ruled in principle by Reifsnyder v. Hunter, 19 Pa. 41; Price v. Taylor, 28 Pa. 95; Criswell’s Appeal, 41 Pa. 288 ; Hiester v. Yerger, 166 Pa. 445.

¶6Judgment affirmed.

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