Lewis v. Fisher

2 Yeates 196

• Court: Supreme Court of Pennsylvania
• Decided: March 15, 1797
• Status: Published

Opinion

Case stated, under the last will of'Samuel Lewis,, dated 21st May 1793, in these words :

Two questions were submitted to the court. 1. "Whether the children of the nephews and nieces of the said testator, (that is, such of them as are named in the will,) were included in the terms “nephews and nieces of every description,” and as such respectively entitled'to the proportions of the residue of his estate?

It is not to be expected that authorities can be produced in the very expressions of the will; Put the following cases may be cited as illustrative of the principle, under which they claim.

If one devises lands to A and his wife and their children or issue, and they have no children at the time of the devise, they have an estate tail. But if the devise be to A and his children or issue, and he then has children, they shall have a joint estate for life. The word “ children” bears a sense co-extensive with “issue.” 6 Co. 16, 17. a. Beni. 30.

An elder son construed as a younger, were unprovided for by collateral relations. 2 Vez. 203.

An elder daughter where there is a son, is accounted a younger child, under a trust in marriage articles. 2 Atk. 457.

Grand children is a word of large extent, and takes in every body descended from the testator. Ambl. 603.

The intention of the testator in his will, must determine both questions. There seems little room for presumption.

The court declared their opinion clearly to be for the plaintiff, for the reasons given byliis counsel, on both points. All the words of the will were fully satisfied by the construction which he contended for.