Stayman v. Paxson, Appellant.
Wills — Devise—Buie in Shelley’s case — Estate in fee simple.
Testator devised to his grandchildren a farm at a valuation stated “ from which they will receive the income after the death of grandmother, and at their death it will descend to their issue.” The land thus devised was charged to its full rental value in favor of the grandmother for her life. Held, that the word “issue” meant “heirs of the body,” and that *447an estate tail was created which, by the act of 1855 was enlarged into a fee.
Submitted April 27, 1908.
May 18, 1908 :
Appeal, No. 106, Jan. T., 1908, by defendant, from judgment of C. P. Cumberland Co., May T., 1908, No. 56, for plaintiffs on case stated in suit of Gordon S. Stayman, Thomas Reading and Nellie S. Reading, his wife, in her right v. Thomas Paxson.
Before Fell, Brown, Mestrezat, Potter and Elkin, JJ.
Affirmed.
Case stated to determine the marketable title to real estate.
The facts appear by the opinion of the Supreme Court.
Error assigned was in entering judgment for plaintiffs on the case stated.
William A. Kramer, for appellant.
8. B. Sadler, for appellee.
Per Curiam,
The plaintiffs claimed ownership in fee of the land in question under the following codicil to the will of their grandfather : “ I hereby change the monied bequest of $20,000 dollars named in my will of Nov. 29th, 1881, and in Stead thereof, give those three children, two sons and one daughter, children of my deceased daughter A. E. Stayman, The Failor Farm at a valuation of $12,500 from which they will receive the income after the death of my wife their Grandmother, and at their death it will descend to their issue.”
The statement that they will receive the income after the death of their grandmother had reference to a charge on the land of its full rental value in her favor for life, and it may be doubted whether there was an intention to give less than an absolute estate. If the intention was to give a life estate only, the rule in Shelley’s case applies to the devise. The word “issue” in a will means,-prima facie, “heirs of the body,” and an estate tail was created into which the life estate merged, and which, by virtue of the act of 1855, was enlarged to a fee : Carroll v. Burns, 108 Pa. 386.
The judgment is affirmed.