In re SCHNADER'S ESTATE.
March 18, (Supreme Court of Pennsylvania. March 18,

Action by East Whiteland Township "Item: I give devise and bequeath to my against Chester County. From an order re- Son Milton H. Schnader his heirs and as

signs the following mentioned real and per- ty-one years." She has attained the age of sonal Estate, in trust. 21 years, and the trustee is accounting for "One two Story Brick house and lot of the income accumulated during her minority. ground on tenth Street No. 250.

"One two Story Brick House and lot of ground on the South eleventh St. No. 232. "One two Story Brick house and Lot of ground on the South side Muhlenburg St. No. 952.

"One two Story Brick house and Lot of ground on the North side of Cotten Street No. 951 he to pay the rents, issues, income and profits thereof to my granddaughter Maud Bachiman or to her lawful issue annually for and During her natural life the Same to commence upon her or her Said issue attaining the age of twenty one years. Provided nevertheless that Said mentioned real and personal property may be transferred and conveyed in fee Simple to my Said granddaughter or to her Said issue by Said trustee whenever in his Judgment and discretion and with the consent of my wife, he Shall deem it expedient and prudent to, Do, So, and provided also that in the event of the death of my Said granddaughter without Leaving Lawful issue, I Devise and bequeath Said real and personal property to my Son Milton H. Schnader his heirs and assigns."

The granddaughter, S. Maude Bachman, having reached the age of 21 years, was awarded the accumulations of income which had accrued during her minority. Exceptions to the adjudication were dismissed by the court in an opinion by Bland, P. J.

Argued before FELL, C. J., and BROWN, MESTREZAT, ELKIN, and STEWART, JJ. Charles T. Tyson and William J. Rourke, both of Reading, for appellant. Isaac Hiester, of Reading, for appellee.

The clear intention of the testator was to give the income to the granddaughter if liv ing at that time, and, if not then living, her lawful issue were to take as beneficiaries. This case in principle is on all fours with Penrose's Appeal, 102 Pa. 448. For the purposes of the present case, it is unnecessary to consider the numerous questions raised by the 30 assignments of error set out in the paper book of appellant. We are dealing with the account of the trustee and the fund for distribution represents accumulated income. There is no other question properly before the court. The testator directed this income to be paid to the granddaughter, and she is in court demanding it. The auditing judge directed that she should have it, and this disposition of the fund is so clearly right as to make elaborate discussion unnecessary. The facts warranted the surcharge of interest, and there is nothing in the record to justify a reversal on this ground.

The title to the real estate is not involved in this proceeding, and we do not therefore pass on it. That question, if it be one, can be raised by the proper parties in a proper proceeding.

Decree affirmed, at the cost of appellant.

(235 Pa. 610) CHAMBERS et al. v. UNION TRUST CO. et al. (Supreme Court of Pennsylvania. April 8, 1912.)

1. WILLS (§ 605*)-CONSTRUCTION-ESTATES CONVEYED-RULE IN WILD'S CASE.

The rule in Wild's Case that a devise to one and to his children, where he has not any ELKIN, J. The fund for distribution rep-children at the time of the devise, is an estate resents the income from real estate accumulated during the minority of the beneficiary who was living at the time of the death of the testator. It was not an unlawful accumulation of income under the act of 1853 because this act did not forbid an accumulation for the benefit of a minor during an existing minority. The provision for accumulation in the will of the testator during the minority of his granddaughter is not forbidden by the act, and is clearly within the exception to the general rule. We entirely agree with the contention of the learned counsel for appellee that the income vested in the beneficiary, as it accrued, although it was not payable to her until she arrived at the age of 21 years. The corpus was real estate devised in trust primarily for the benefit of the granddaughter. The trustee was required to pay the rents, issues, income, and profits to the granddaughter, or her lawful issue, annually, during her natural life. payment to commence "upon her or her said issue attaining the age of twen

tail, is not applicable in Pennsylvania.

Dig. §§ 1360-1365; Dec. Dig. § 605.*]
[Ed. Note. For other cases, see Wills, Cent.

2. WILLS (§ 608*)-CONSTRUCTION-ESTATES
CONVEYED-APPLICATION OF RULE IN SHEL-
LEY'S CASE.

The rule in Shelley's Case does not apply to a devise to a person and to his children with a provision that, if the devisee die without legal issue, the property is to go to the heirs of testator's father.

[Ed. Note.-For other cases, see Wills, Cent. Dig. §8 1372-1378; Dec. Dig. § 608.*] 3. WILLS (§ 614*)-ESTATE CONVEYED-LIFE ESTATE AND REMAINDER.

A devise to a person and to his children, with the provision that, if the devisee die without legal issue, the property is to go to the heirs of testator's father, is tantamount to devise to the first devisee for life, with re

mainder to his children.

a

[Ed. Note. For other cases, see Wills, Cent. Dig. §§ 1393-1416; Dec. Dig. § 614.*] 4. WILLS ($ 495*)-CONSTRUCTION-BENEFICIARIES-CHILDREN."

In a devise to testator's nephew and to his without legal issue, the property is to go to children, providing that, if the nephew die the heirs of testator's father, the use of the

phrase "legal issue" does not require the word | and that the devise being immediate,' an "children" to be construed as though it were there being no children to take, the farm "issue"; "children" being prima facie a word of purchase, and not of limitation, and being was devised in tail and this is enlarged by properly so construed in such a devise. the Act of April 27, 1855 (P. L. 36S), into an [Ed. Note.-For other cases, see Wills, Cent. estate in fee. * In accordance with Dig. §§ 1061-1064; Dec. Dig. § 495.* · the foregoing reasons For other definitions, see Words and Phrases, entered for the defendants for the whole of judgment is vol. 2, pp. 1115–1141; vol. 8, p. 7601.] the above-described property." The plaintiffs have appealed.

5. WILLS (8 614*)-CONSTRUCTION-BENEFI

CIARIES.

Where testator devised land to his nephew and to his children, but, in case the nephew should die without legal issue, then to the heirs of testator's father, and the nephew died without children, the devise over to the heirs of testator's father takes effect as an alternative limitation.

[Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 1393-1416; Dec. Dig. § 614.*]

Appeal from Court of Common Pleas, Bucks County.

Action by Hannan H. B. Chambers and others, suing for themselves and the heirs of William Barnsley, deceased, against the Union Trust Company of Pittsburg, guardian of George T. Barnsley, Jr., a minor, and another. From a judgment for defendants, plaintiffs appeal. Reversed and rendered.

Argued before FELL, C. J., and MESTREZAT, POTTER, ELKIN, and MOSCHZISKER, JJ.

John G. Johnson, Yerkes, Ross & Ross, and R. O. Moon, all of Philadelphia, for appellants. Montgomery Evans and John M. Dettra, both of Norristown, and J. Smith Christy, of Pittsburgh, for appellees.

[1] In Graham v. Flower, 13 Serg. & R. 439, it is stated: "In Wild's Case, 6 Coke, 16b, this distinction is taken: (1) If A. devises land to B. and to his children or issues, and he hath not any issue at the time of the devise, the same is an estate tail, for the intent is manifest and certain that his children or issue should take, and as immediate devisees they cannot take, because they are not in rerum natura, and by way of remainder they cannot take, for that was not his intent, for the gift is immediate; therefore, then, such words shall be taken as words of limitation. (2) But if a man devises land to A. and to his children or issue, and he then has issue, his express intent may take effect, according to the rule of the common law, and no manifest and certain intent appears to the contrary; and therefore, in such case, they shall have but a joint-estate for life.'" In the case just cited, and in Shirlock v. Shirlock, 5 Pa. 367, the second resolution of the rule was followed, and it was decided that living children take immediately with their parent. The resolutions are mentioned in Ellet v. Paxson, 2 Watts & MOSCHZISKER, J. The matter here for S. 418, 434, Cote v. Von Bonnhorst, 41 Pa. decision is the question of the proper inter- 243, 251, Myers' Appeal, 49 Pa. 111, 114, pretation of the following provision contain- Taylor v. Taylor, 63 Pa. 481, 488, 3 Am. Rep. ed in the will of Joseph Barnsley: "Item. 565, Seibert v. Wise, 70 Pa. 147, 150, CressI give and devise my farm (devised by my ler's Estate, 161 Pa. 427, 434, 29 Atl. 90, 95, father to me) to my nephew, Joseph Barnsley Oyster v. Orris, 191 Pa. 606, 609, 43 Atl. 411; and to his children; but in case he should but in none of these cases does the decision die without legal issue, then it is to go to rest upon the rule in question. In Coursey the heirs of my father, as directed by the in- v. Davis, 46 Pa. 25, 84 Am. Dec. 519, we detestate laws of Pennsylvania; subject, never- cided that a grant to a woman and her chiltheless, to the yearly payment of one hun- dren vested in her a life estate with remaindred dollars to my sister, Mary Ann Barns- der in fee to the children as a class, so that ley, during her life." The testator died those in being at the date of the deed, as January 12, 1888. Mary Ann Barnsley, the well as those subsequently born, would be annuitant, died January 16, 1889. Joseph entitled to take in the distribution, on the Barnsley, the devisee, entered into possession termination of the life estate at the death of the farm in the year 1888, and retained of the mother. In Hague v. Hague, 161 Pa. the same until October 11, 1909, when he 643, 29 Atl. 261, 41 Am. St. Rep. 900, we died unmarried and without children; no is- determined a gift to "Sarah Jane Hague and sue ever having been born to him. He left her children" to be a life estate in the motha will in which he devised all of his property.er with remainder in fee to the children as The plaintiffs claim as the heirs of William a class; thus, in effect, overruling the earBarnsley, who was the father of the testa- lier cases which held the mother and chiltor, and the defendants under this will of dren to be tenants in common, and expressly the testator's nephew and devisee. In a well- announcing that Shirlock v. Shirlock, supra, stated opinion, after reviewing various au- "cannot now be regarded as authority." thorities, the learned court below determined Crawford v. Forest Oil Co., 208 Pa. 5, 57 the case thus: "Invoking either the rule in Atl. 47, a devise to a son "and to his chilShelley's Case, or the rule in Wild's Case, dren" was construed to vest a life estate in we are of the opinion that the word 'chil- the former and an estate in remainder in dren' was a synonym for 'heirs of his body,' the children living at the testator's death, For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

In

subject to open and let in after-born children. In Elliott v. Diamond Coal & Coke Co., 230 Pa. 423, 79 Atl. 708, a devise to a daughter "to have and to hold unto my said daughter and her children forever" was held to vest an estate for life in the daughter, remainder in fee to the children as a class. Finally, in Vaughan's Estate, 230 Pa. 554, 79 Atl. 750, a life estate was given to a wife; at her death one-third of the property was given to a trustee to hold for a daughter, "for her and her children's sole use and benefit." Held, that the daughter took a life estate with remainder to her children in fee.

but an estate for life, and after refusing to treat the word "children" as a word of limitation, and referring to the rule in Wild's Case, Strong, J., said (page 252): "Where a limitation is to a parent for life, and to his children by way of remainder, there seems to be no ground, whether there are children or not, for holding the parent to be a tenant in tail,” and (page 251) "the reason ceases entirely when the gift to the children instead of being immediate is by way of remainder."

[2] We shall now consider the applicability of the rule in Shelley's Case. In the present instance, as in all other cases, our first inquiry is, Looking at the words of the will, what did the testator intend? We entertain no doubt that when Joseph Barnsley devised the farm to "my nephew and to his children,” and provided if the nephew should die without legal issue it was to go to the heirs of his, the testator's father, he did not at all contemplate that, if the nephew should leave no descendants, his heirs should take to the exclusion of the heirs of the testator's father. Yet, if the words used express an intention that the land shall go to the tes tator's nephew and then descend lineally through him to his issue, the rule in Shelley's Case applies, and the court below must be affirmed on that theory. But, on the other hand, if the words show that the testator intended the children of his nephew to take as purchasers directly from him, the testator, then the rule in Shelley's Case has no application. Kemp v. Reinhard, 22× Pa. 143, 77 Atl. 436, 29 L. R. A. (N. S.) 958. [3] Under the settled decisions of this

"to my nephew and to his children" was tantamount to saying, "to my nephew for life with remainder to his children."

In all of the cases just referred to children were living at the death of the testator, so we may take it as firmly established that the second resolution in Wild's Case is not the law in Pennsylvania. But the question | arises, Does the first resolution apply when there are no children? Although several of the cases to which we have already referred apparently indicate that this court has recognized the first resolution, yet in none of them have we had occasion actually to apply it in order to rule the matter before us for decision. In fact, this appears to be the first instance where a case has been presented without children in being to take. After an exhaustive examination of the authorities and much thought, we are brought to the conclusion that the resolution does not control under such circumstances, for the reason upon which it rests fails because of the different interpretation which we place upon a devise to a parent and children. Under the second resolution in Wild's Case, as applied in England and originally accept-court, the language employed by the testator. ed in Pennsylvania, it was held that such a devise gave the parent and children a joint estate; the children taking immediately, and not in remainder. The theory was that, if there were no children in existence at the time of the devise, the provision in their favor would fail altogether, unless the parent were given a fee-tail; hence, and for that reason alone, the second resolution. But with us, where the children take in remainder, it is immaterial whether they are, or are not, in existence at the time of the devise or at the time of the death of the testator. Cote v. Von Bonnhorst, 41 Pa. 243, 251; Curtis v. Longstreth, 44 Pa. 297, 303; Taylor v. Taylor, 63 Pa. 481, 488, 3 Am. Rep. 565. Therefore it is not necessary to give an artificial meaning to the devise in order to care for the interests of the children, and there is no apparent reason for adhering to the first resolution in Wild's Case. In Cote v. Von Bonnhorst, supra, where the devise was to a daughter "to have and to hold to her for and during the term of her natural life and at and immediately after her deto her children in fee; but if she should die without having children."

cease,

[4] The only question is, Does the use of the phrase "in case he should die without legal issue," make it necessary to construe the prior use of the word "children" as though it were "issue," which would mean an indefinite failure of issue, thus creating an estate tail and bringing the devise within the rule in Shelley's Case? We think not. "Children" is prima facie a word of purchase, and not of limitation, and we are convinced that the present testator intended so to use it. Moreover, there is no necessity for giving the word an enlarged meaning, for here, under the devise as framed, the estate would vest in the children of the nephew as a class immediately upon any of them coming into existence before his death. and there could, therefore, be no possibility of an exclusion of descendants. As to the phrase "without issue," "there is less reluctance to narrow the prima facie meaning of the word 'issue' than of" other words. That word may be "applied only to children." Taylor v. Taylor, 63 Pa. 481, 483, 3

that, when a fee simple

is given W. S. Kirkpatrick and Robert A. Stotz, both of Easton, for appellant. John G. Johnson, of Philadelphia, and Smith, Paff & Laub, of Easton, for appellee.

in remainder after an estate for life to the children of a first taker, words following containing a limitation over on default of his issue are held not to raise an estate tail by implication. In this class of cases issue' is construed to mean 'such issue'; that is, children." Sheets Estate, 52 Pa. 257, 268; Curtis v. Longstreth, 44 Pa. 297, 302, 303. "It is well settled, also, that words importing a failure of issue without the word 'such,' following a devise to children in feesimple or fee-tail, refer to the objects of that prior devise and not to the issue at large." Daley v. Koons, 90 Pa. 246, 249. The present case falls within these authorities, and the words of the devise, "legal is sue," should have been construed to mean, "such children," and to import a definite failure of issue.

MOSCHZISKER, J. This record, viewed from the standpoint of the verdict rendered, shows a very simple case which can be summed up as follows: A. and B. were desirous of jointly acquiring the business of C. B., by authority of A., entered into negotiations with C., and they finally agreed upon terms to be reduced to a writing, which was to be executed by all the parties as the con| tract of purchase. The price to be paid for the business was $12,000, "the sum of $1,300 to be paid on the day of the signing" of the agreement. C. was desirous of getting immediate possession of the $1,300, and B., for the benefit of C., advanced this sum out [5] Since the nephew was dead, without of his own funds, upon the distinct underissue, the devise over to the heirs of Wil- standing and agreement that, if A. should liam Barnsley, the father of the testator, refuse to sign the written contract, the $1,would take effect as an alternative limita- 300 would be returned to B. When the tion (Sheets' Estate, 52 Pa. 257; Fetrow's writing was sent to A., he declined to accept Estate, 58 Pa. 424), and the court below or execute it. C. refused to return the $1,should have determined this case accord-300, and thereupon B. brought the present ingly. suit to recover the same with interest. The verdict was for the plaintiff, and the defendant has appealed.

The assignments of error are sustained, the judgment for the defendants is reversed, and judgment is here entered for the plaintiffs.

Where a joint contract in writing shows that it is to be signed by two persons as parties of the first part and one person as party of the second part, and one of the parties of the first part refuses to sign it after the other two persons had signed, it is ineffective, and all the parties are discharged.

[Ed. Note. For other cases, see Contracts, Cent. Dig. §§ 171-185; Dec. Dig. § 35.*] 2. EVIDENCE (§ 443*)-PAROL EVIDENCE-INOPERATIVE CONTRACT-MODIFICATION.

Where a contract was to be signed by two parties of the first part and one party of the second part, and one party of the first part refused to sign, the other party of the first signing the agreement and paying over the money to the party of the second part and suing to recover the same may show by parol that he advanced the money on the promise of the defendant that, if the written agreement did not become operative by failure of the other party to sign, the money should be repaid.

[Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 2048-2051; Dec. Dig. § 443.*]

Appeal from Court of Common Pleas, Northampton County.

[1] The defendant contended that B. had authority from A. to bind him; that the agreement was complete before it was reduced to writing; that the $1,300 was down money paid on the contract; and that any agreement to refund it was nudum pactum for want of consideration, and could not be enforced. The issue as to whether or not there was an agreement to return the $1,300 in the event of the written contract not being signed by A. was submitted and found in favor of the plaintiff and in this connection the jury was told that, if the alleged agreement between B. and C. was not entered into as a separate and distinct contract apart from the agreement of purchase, tion was called to the distinction which exthere could be no recovery, and their attenists in law between a duly consummated verbal contract with an agreement that it shall be reduced to writing, and an oral agreement to become a perfected contract when reduced to writing.

[2] Under the verdict, we must take it that the jury determined that the defendant had entered into a separate agreement with the plaintiff that, if he would advance the $1,300 in anticipation of the execution of the written contract, the defendant would agree to return it in the event of the third party declining to sign. Such an agree

Action by Grover Bruch against Howard ment, under the circumstances here present, S. Shafer. Judgment for plaintiff, and defendant appeals. Affirmed.

Argued before MESTREZAT, POTTER, ELKIN, STEWART, and MOSCHZISKER, JJ.

would constitute an independent contract upon a sufficient consideration.

This case was under review on appeal once before (Bruch v. Shafer, 45 Pa. Super. Ct. 612), and the facts are fully set forth