tence, "but the lands shall remain free for their | he clearly defined and restricted it in the clause children or heirs." Here we have the clue to we have been considering, and the rule is that the prohibition against alienation and incum- between repugnant clauses in a will the last shall brance. Why shall they not alien or encumber? govern. Our former decision must, therefore, Because, says the testator, my will is the estate stand, with these further reasons for it. shall remain free (unaffected by their acts) for Decree of the Orphans' Court dismissing the their children. It is argued this purpose is de-petition affirmed, with costs to be paid by the fective for grandchildren would not take if a pa- appellants, and their appeal is dismissed. rent died before the testator. This is against a settled rule that "children" will include grand-absent. children when it is necessary to serve the intent of the testator. (Dickinson v. Lee, 4 Watts, 82; Pemberton v. Parke, 5 Binney, 601.) Various

Opinion by AGNEW, C. J. WOODWARD, J.,

readings of the word "children" will be seen in Oct. & Nov. '78, 267.
the citations in Yarnall's Appeal (20 P. F. S.
341). This clause further interprets the word
"heirs." Here "children," the primary word,
precedes "heirs," the secondary, and the latter, as
the alternative of the former, expresses the testa-
tor's own thought. Yet this clause standing alone
might still leave the intention liable to soine con-
test. But it is followed by another part of the
same united sentence, leaving the intent free of
all doubt. Thus, "and they my said children
shall have the use, income, and profit of the said
lands and farms during their lifetime." Here
we have two express declarations of intent:
the subject of his children's devise is clearly
defined, the precise interest of a life-tenant, viz.,
the use, income, and profit of the lands. Thus
the usufructuary interest alone is given, and this
is all a life tenant can take. Not content with
defining the subject, he becomes finally and fully
explicit, and expressly defines the term or dura-
tion of the estate itself, viz., "during their life-
time." Now the full meaning and intent of the
testator is fully developed and clearly expressed.

His own children shall have the use, income, and profits of the lands devised for life only, without power to alien or encumber, in order that these lands shall remain after their death for their children. Then follows the item next to the last which confers a power to dispose by will. Here comes in another thought of the testator, perfectly natural and obvious. Remembering that one daughter is unmarried, and that some of his married children may die without leaving children, or that their children may differ in merits or be unequally provided for, and that he has just prohibited his devisees from enjoying more than a life estate; he thinks of these contingencies, and now gives a power of appointment by will; and to express this intent more distinctly, says, "to take effect after their decease." This the land should be sold, and after paying certain is the crowning sheaf of his intention, and shows legacies, the balance remaining should be that he did not intend to give a fee simple when" equally divided amongst all my legitimate he used the word "heirs" in the principal devise grandchildren that are now, or may hereafter be as his own alternative expression for "children" born, to share and share alike." or possibly with a vague conjecture of its meaning. If he used it in a general way, it is plain

Moses Middleswarth, the testator, died in 1842. By his will he devised certain real estate to his son Jonathan, directing that in case his said son should die without leaving any legitimate issue,

Oct. 10, 1878.

rest.

Chess's Appeal.
Middleswarth's Estate.

Will-Devise-Legacies, when vested, when contingent-Transmissibility of contingent inte

A legacy is to be deemed vested or contingent just as the time it is to take effect shall appear to be annexed to the gift or the payment of it. Where there is no substanthe legacy is contingent; provided a contrary intention is tive gift, and it is only implied from the direction to pay, not to be collected from the words or circumstances.

A bequest subject to a contingency which does not affect the capacity of the donee to take is vested, and transmissible to donee's personal representatives.

M. devised certain real estate to his son J., directing that in case J. should die without having any legitimate issue, the land should be sold, and after paying certain legacies, the balance should be equally divided amongst all his legitimate grandchildren, born or to be born, share and share alike. J. subsequently died without issue.

Held (affirming the judgment below), that the interest thus given by M. to his grandchildren was a vested interest and transmissible to the representatives of those of the grandchildren who died before his son J.

Per SHARSWOOD, J. The inclination of the Courts is always in favor of the vesting of legacies, because in ninetynine cases out of a hundred, it is the intention of the testator that his bounty should be transmitted to the children or family of the beneficiary, otherwise, indeed full effect is not given to it.

Appeal from a decree of the Orphans' Court of Allegheny County, distributing the fund in the hands of John Hickman, administrator de bonis non cum testamento annexo of the estate of Moses Middleswarth, deceased.

On the assumption that the devise gave him an estate in tail, Jonathan Middleswarth executed an

appropriate deed to bar it, and the land having been reconveyed to him he sold it to one Blackmore. He died in 1869, without issue, never having been married. Letters of administration d. b. n. c. t. a. on the estate of Moses Middleswarth were granted to John Hickman, who instituted an action of ejectment and recovered the land devised to Jonathan. (See Middleswarth's Administrator v. Blackmore, 24 Sm. 414.) The administrator sold the real estate which was the subject of the devise in question, and after payment of the specific legacies and expenses there remained for distribution among the grandchildren of the testator the sum of $11,020.

The grandchildren of testator, excluding those who died before his decease, were thirty-eight in number. Of these, twenty-one died before John Middleswarth, the remaining seventeen still survive.

Upon the audit of the administrator's account, the Court (HAWKINS, P. J.) holding that the legacies vested on the death of testator, decreed accordingly, and distributed the fund equally among the living grandchildren and the representatives of the grandchildren deceased. Wm. Chess, one of the surviving grandchildren took this appeal, assigning for error this decree of the Court, in awarding any portion of the fund to the representatives of said deceased grandchildren, instead of distributing the whole fund among the seventeen grandchildren who survived Jonathan Middleswarth, all of whom are still living.

R. B. Carnahan, for appellant.

Where there is no gift but by a direction to pay at a future time or on a given event, the vesting will be postponed till after the time has arrived or the event has happened unless from particular circumstances a contrary intention is to be collected.

In Chew's Appeal (1 Wright, 23), it was said by Mr. Justice STRONG that "generally a bequest after the death of a particular person to whom an antecedent interest is given in the same will, is held not to denote a condition that the legatee shall survive such a person, not to define when the interest shall vest, but only to mark the time when the gift shall take effect in possession, that possession being deferred merely on account of the life interest limited to the person on whose death the gift is to take effect." So in McClure's Appeal (supra) Mr. Justice WILLIAMS said:

Though there be no other gift than in the direction to pay or distribute in futuro, yet if such gift or distribution appears to be postponed for the convenience of the fund or property, or where the gift is only postponea to let in some other interest, the vesting will not be deferred till the period in question." Thus in the common case of a legacy or gift to A. and on his

Whilst the legacies in question were contingent until the death of Jonathan, the death of a legatee did not preclude the possibility of the hap-death to B. no one doubts that both interests, pening of the contingency, and therefore did the present and the future, vest together at the not determine the interest, and such a contin- same instant. gent interest is transmissible to personal representatives upon death.

Leake v. Robinson, 2 Meriv. 387.
Booth v. Booth, 4 Vesey, 399.

2 Williams on Executors, p. 1052, also pp. 1055 to
1059 (3d American edition).
Moore v. Smith, 9 Watts, 403.
Donner's Appeal, 2 W. & S. 372.
Seibert's Appeal, 1 Harris, 501.
Bowman's Appeal, 10 Casey, 19.
M'Clure's Appeal, 22 Sm. 417.
Lamb v. Lamb, 8 Watts, 185.

John D. Shaffer (with him John G. Bryant),

contra.

I Jarman on Wills, 777, and cases cited; also vol. ii.
PP. 75, 76, 98, 99, and 100.
Winslow v. Goodwin, 7 Metcalf, 363.
Hopkins v. Jones, 2 Barr, 69.

Kelso v. Dickey, 7 W. & S. 279.
Williams on Executors, pp. 795 and 797, and cases
cited 5th Amer. ed.

swarth by his last will devised certain real estate Oct. 21, 1878. THE COURT. Moses Middleto his son Jonathan, directing that in case his said son should die without leaving any legitimate issue, the land should be sold, and after paying certain legacies, the balance remaining to be children born or to be born, share and share equally divided amongst all his legitimate grand

alike.

The question which is presented for decision. upon this appeal is whether the interest thus given to his grandchildren was transmissible to period when the division was to take place. their representatives on their death before the

No doubt it is the general rule that a legacy is time when it is to take effect shall appear to to be deemed vested or contingent just as the annexed to the gift or the payment of it. Where from the direction to pay the legacy is continthere is no substantive gift, and it is only implied gent. But this rule is of course subject to the necessary exception, that a contrary intention is not to be collected from the words or circumstances. In McClure's Appeal (22 P. F. Smith, 414), our late lamented brother WILLIAMS, in that there are many cases in which this general an elaborate and exhaustive opinion, has shown rule is not applicable.

66

Attaching a contingency to the gift of the second bequest ought not to and does not affect the case, unless that contingency relates to the capacity of the second legatee or donee to take.

In a legacy to A. and if he dies before attainling the age of twenty-one, then to B., the inte

rest of B. though dependent upon a contingency is transmissible. It would be different if the gift over was to B. at twenty-one, for if he should die before attaining that age he could never take, and could therefore have nothing to transmit. It was in accordance with these principles that the case of Kelso v. Dickey (7 W. & S. 279) was decided. There a testatrix bequeathed a legacy to her daughter under the following contingency: "In case she dies before the age of twenty-five or without issue born, then to be divided between my sister and brothers." The daughter died without issue before she arrived at twenty-five. It was held that the legacy was so vested in the sister and brothers of he testatrix as to be transmissible to their personal representatives in the event of their death before the daughter of the testatrix. Mr. Justice SERGEANT said: "The contingency on which the legatees over were to take was not a contingency annexed to their capacity to take; such for example as their living to a certain time; but an event independent of them and not affecting their capacity to take or transmit the right to their representatives, and such a contingent interest has frequently been decided to be vested so as to be transmissible to representatives." To the same effect is Hopkins v. Jones (2 Barr, 69). These cases are in point and rule that which is before us.

Common Pleas-Law.

The inclination of the Courts is always in favor of the vesting of legacies, because in ninetynine cases out of a hundred, it is the intention of the testator that his bounty should be transmitted to the children or family of the beneficiary, otherwise, indeed, full effect is not given to it.

Decree affirmed, and appeal dismissed at the costs of the appellants.

Opinion by SHARSWOOD, J.

The will after bequeathing all testator's estate to his wife and unmarried daughters for the life of the wife, provided "that, at the decease of his wife, all testator's estate should be equally divided amongst his son and daughters, and their heirs forever, the daughters' shares to be free from the control of their husbands, and in case of the death of any child before the wife the issue of such child should take the parent's share.”

Testator left a son, the present plaintiff, and three daughters, one of whom, Emma, was married at the time of his death to John Richardson, and this daughter died before testator's wife, leav

Had the devise been to Jonathan and on his death then to be divided among the grandchil-ing to survive her the husband, but no issue. dren no one could question the transmissibility of their interests. That they were to take only in case he died without legitimate issue, though it made their interest dependent upon a contingency did not change its character in this respect, because it was not a contingency which affected at all their capacity to take. Whenever the contingency happened, if ever it did happen, they

The present rule was obtained by Richardson, on the ground that, as tenant by the curtesy of his wife's estate, he was entitled to be made a party to these proceedings in partition.

F. S. Cantrell, for the rule.

would be entitled.

The children, of testator took a vested remain

der in fee, subject to a life estate in the mother. At the death of his wife, John Richardson became tenant by the curtesy of her share.

Blackwell v. Cameron, 10 Wr. 236.

Proceedings in partition will be set aside unless provision be made for a tenant by the curtesy.

Walton v. Willis, 1 Dallas, 351.
Cote's Appeal, 29 Sm. 235.

C. H. Jones, contra.

The husband cannot be tenant by the curtesy of an estate of which the wife was not actually seized during her life.

Chew v. Commissioners, 5 Rawle, 160.
Shoemaker v. Walker, 2 S. & R. 554.
Hitner v. Ege, 11 H. 305.

In Blackwell v. Cameron, supra, it was held, that a widow was entitled to dower in an estate in remainder when her husband died during the continuance of the particular estate, because her dower was a statutory substitute for dower at common law. But the husband's curtesy is the common law estate of that name.

C. A. V.

Oct. 26, 1878. THE COURT. By the com- | C. P. No. 2.

Nov. 23, 1878.

mon law the seizin of the wife must be an actual McQuigan v. Michael McCarthy and Marseizin or possession to entitle the husband to an

garet his Wife.

estate as tenant by the curtesy in her lands. Practice-Capias-Arrest of freeholder-Act

Hence there could be no such estate in lands to
which she was entitled in remainder, as in the
present instance. It was not necessary, there-
fore, that the name of John Richardson should
be joined in these proceedings.
Rule discharged.

Oral opinion by BIDDLE, J.

This was a summons in case; the writ was served upon a clerk of defendants' firm of P. & F. Collins, and returned "Served Thos. Collins, a non-resident of this county, but engaged in business therein, by giving a true and attested copy of the within writ to William Martin, a clerk of the said Collins, at his usual place of busi

ness."

of March 20, 1725.

Rule to abate writ of capias ad respondendum.
Trespass on the case, for slander.

Act of April 21, 1858, Purdon's Dig. 44, sec. 9. Campbell, contra.

Defendant has no residence in this State, and although a citizen cannot be considered other than a non-resident.

The affidavit of Margaret McCarthy, one of the defendants, in support of the rule set forth her arrest under a writ of capias ad respondendum issued in this cause; that at the time said writ issued she was and still is a freeholder, seized in fee of premises in Philadelphia city worth fifty

C. A. V.

Nov. 16, 1878. THE COURT. THE COURT. A person absent from the State, but still retaining an animus revertendi within a reasonable time, cannot be regarded as a non-resident.

Rule absolute.

Oral opinion by BIDDLE, J.

E. B. Watson, for the rule.

Under the Act of March 20, 1725 (Purd. Dig. 48, pl. 46 and 49, pl. 48) the defendant, Margaret McCarthy, being a freeholder exempted from arrest, is entitled to have this writ abated. McKinlay, contra.

Rule absolute as to Margaret McCarthy.

C. P. No. I.

Nov. 23, 1878. Building Association v. Byrne. [No. 1.] Judgment-Error and appeal The pendency of a writ of error is no bar to a sci. fa. to revive the judgment.

The present rule to amend this return was granted on the affidavit of Martin, setting forth that he is not and never has been clerk for the defendant, has no knowledge of the matter in suit, nor of the personal affairs of defendant; that defendant is a citizen of and domiciled in this Commonwealth; that he left here in Febru-ment, which is now pending. On Nov. 2, 1878, ary, 1878, to build a railroad in Brazil, and is the plaintiff issued the present sci. fa. to revive. expecting to return home within sixty days. F. F. Brightly, for the rule. Winship (with him E. G. Platt), for the rule. Service can only be made personally on defendant as he is a resident absent temporarily. The Act only applies to non-residents.

A sci. fa. to revive a judgment cannot properly issue while a writ of error contesting its validity is still pending.

Act of June 16, 1836, Purd. Dig. 605.
Boyer v. Rees, 4 Watts, 201.

T. M. Daly, contra.

Rule to quash sci. fa. to revive a judgment. On Dec. 11, 1873, judgment was entered against defendant on a bond and warrant of attorney. May 25, 1878, plaintiff filed a suggestion of breach, and having assessed the damages issued a fi. fa. under which the defendant's property was levied on and condemned. The Court subsequently discharged a rule to set aside the assessment of damages and quash fi. fa., and the defendant then took a writ of error to the judg

The Act of June 16, 1836, makes a writ of error only a supersedeas to an "execution.” An "execution" is a writ which authorizes the money due on a judgment to be made out of the property of the defendant.

I Bouv. Law Dic. p. 554.

This is not the function of a sci. fa. to revive a judgment, and hence it is not an "execution."

While the writ of error is pending the record is still in the Court below for the purpose of lien, and it is no bar to a sci. fa. to revive a judgment.

Snook v. Mattock, 5 Ad. & El. 239.

Falkner v. Franklin Ins. Co., 1 Phila. 183.