Stewart v. Kenower

7 Watts & Serg. 288

• Court: Supreme Court of Pennsylvania
• Decided: May 15, 1844
• Status: Published

Opinion

The opinion of the Court was delivered by

Sergeant, J.

We are of opinion that the construction given to this devise by the court below is correct. The rule in Shelly’s Case has been considered a rule of property in Pennsylvania as much as in England, from whom we derive the system under which our tenures of real estate are held and transferred by deed or will. A devise of this kind to others than heirs of the person having the estate for life, would be a contingent remainder, vesting (when it came to vest) by purchase; but the heirs general of a person cannot take from him by purchase—they must take by descent: and therefore the remainder vested, for the purpose of hereditary transmission, in John R. Stewart; and he having by the same conveyance a freehold estate for life, with remainder to his heirs, the two estates by the rule in Shelly’s Case united together, and he was seised of an estate in fee-simple. As, however, it was liable to be defeated by his dying and leaving children, the union was not absolute, but sub modo, so as to open by operation of law when that event occurred. That event never having occurred, his estate continued. See Fearne’s Con. Rem. 34-7; Lewis Bowles’s Case, (11 Rep. 80); Preston on Estates.

In regard to the other objection, that there was no inquisition nor condemnation, we .think it falls within that class of cases in which our laws do not contemplate an-inquisition, the estate being of uncertain duration, as has been held in regard to estates for life, contingent interests and others. No jury could say that such an estate would pay in seven years, and extend it; for the next day John R. Stewart might marry, beget a child, and die; and a child even in ventre sa mire would defeat his fee-simple altogether.

Judgment affirmed.