Allen v. Markle

36 Pa. 117

• Court: Supreme Court of Pennsylvania
• Decided: July 1, 1859
• Status: Published

Opinion

The opinion of the court was delivered by

Strong, J.

'That under the will of Andrew Burgett, an estate tail was given tó his son Boston, admits of no doubt. The rule in Shelly’s case is an established rule of property in Pennsylvania. At this late day, it would be useless to attempt to vindicate it, or reply to the.oft-repeated objection that it defeats the particular intent of the donor or testator. It is sufficient for us, that the rule is too deeply seated to be overthrown by judicial decision. The devise in this will is directly within the rule. The testator gives his real estate to his son “ during his natural life, and at his decease to descend to his legitimate offspring for ever.” He then directs that “ in case the said Boston’s issue becomes extinct, the land shall go over to devisees named in the will.” The words “ legitimate offspring” and “issue” are used interchangeably as having the same meaning, and if he had not defined the term “ offspring,” the law has, in repeated instances. It is regarded as nomen eolleetivum.

Offspring then is a word of limitation, not of purchase. Those embraced in its meaning take by descent through Boston Burgett, not as primary objects of the testator’s bounty. Of course the estate of the first taker was an estate tail, and it having been barred under the Act of Assembly, the plaintiff below had a title in fee simple.

The judgment of the Court of Common Pleas is therefore affirmed.