Leavitt v. Logan

15 F. Cas. 131, 3 Wall. Jr. 184

• Court: U.S. Circuit Court for the District of Western Pennsylvania
• Decided: November 15, 1855
• Status: Published

Opinion

GRIER, Circuit Justice.

If the will had made no farther provision, than that on the decease of Julia Logan, the premises should become the property of Joshua Logan, it might well be construed as a gift of the remainder in fee to Joshua. But such an intention is manifestly inconsistent with the provision that the property, while in his hands, was not to be subject “to sale or mortgage.” The words “descend to his children,” might seem to imply that according to their strict legal meaning his children were to take by inheritance from their father. But such a construction would not fulfil the intention of the testator. Unless the children take as purchasers a remainder in fee, their title would be liable to be defeated by the .father.

To fulfil the intention as clearly expressed, the will must be construed as giving, 1st. An estate for life toJuliaLogan. 2d. To Joshua for life. 3d. Remainder in fee to the children of Joshua; vested as to those then born, and opening to let in the other children as they shall successively come into existence. 4th. And lastly, a contingent remainder in fee in Julia Richardson. Decree accordingly.