Eby v. Shank

46 A. 495, 196 Pa. 426, 1900 Pa. LEXIS 532

• Court: Supreme Court of Pennsylvania
• Decided: May 29, 1900
• Docket: Appeal, No. 302
• Status: Published

Opinion

Per Curiam,

The sentence in the will of Robert A. Evans, the elder, which gave to the oldest son of Robert A. Evans, the younger, the fee simple of the farm which was devised for life to Robert A. Evans, the younger, became nugatory and of no effect whatever, because there never was any son of the devisee for life. He never had a son and hence there was nothing upon which this provision of the will could operate. By consequence the next succeeding sentence of this clause of the will became the only operative provision for the succession to the life estate. It is in these words, “ If he has no son living at the time of his death, then to his heirs and legal representatives.” The will must be read as if the devise to the oldest son were never written into it, because the immediately following devise to the heirs and legal representatives of the devisee for life is the alternative and the only alternative, provided by the will itself. That this alternative devise brings the case within the rule in Shelley’s case is too plain for argument.

Judgment affirmed.