Steiner versus Kolb.
A devise “ to Elizabeth for her lifetime, but immediately after her decease it shall be and belong to her legal heirs share and shave alike,” passes a fee.
January 21st 1868.
Before Thompson, C. J., Read, Agnew and Sharswood, JJ. Strong, J., at Nisi Prius.
Error to the Court of Common Pleas of Montgomery county: No. 231, to January Term 1868.
This was an action of covenant brought to November Term 1867 by Henry Kolb and Elizabeth his wife in her right, against George W. Steiner.
A case was afterwards stated for the opinion of the court, by which it appeared that on the 7th of December 1867 the plaintiffs sold to the defendant a lot of woodland, containing about 3 acres, for the consideration of $300, the deed to be made on the 12th of the same month on the payment by the defendant of the consideration.
The land was the property of Mrs. Kolb under the will of her father, Abraham Hiltebeitel. The devise was as follows:—
*124“ I give and bequeath to my youngest daughter Elizabeth, now intermarried with Henry Kolb, my farm, &c., also my house and lot of land, &c., and also my wood lot situate in Frederick township aforesaid, joining land of John Steiner, John Freisbach and others, containing about 8 acres more or less; all the three aforesaid pieces or tracts of land are hereby bequeathed unto my said youngest daughter Elizabeth for and during her natural lifetime, but immediately after her decease it shall be and belong to all her legal heirs, share and share alike.” The last-mentioned lot was that contracted to be conveyed. Mrs. Kolb had four children living.
It was agreed by the case that if the court should be of opinion that Mrs. Kolb took a fee simple under the devise, judgment to be entered for the plaintiffs for $300, to be paid on the plaintiffs’ conveying the lot to the defendant in fee simple, otherwise, judgment to be entered for the defendant.
The court (Chapman, P. J.) entered judgment for the plaintiffs for $300, with condition as in the case stated.
The defendant took a writ of error, and assigned for error the entering of the judgment as above stated.
A. B. Longaher, for plaintiffs in error.
J. B. HumieJcer, for defendant in error.
January 30th 1868,
The opinion of the court was delivered, by
Thompson, C. J.
An estate in fee simple is where lands are granted to one and his heirs for ever, generally and absolutely, without limitation or restriction to any particular heir or heirs. In the case in hand, the devise to Elizabeth Kolb by her father, Abraham Hiltebeitel, was “ all the three aforesaid pieces or tracts of land” (one of which is the subject of this controversy) “ are hereby bequeathed unto my youngest daughter Elizabeth for and during her natural lifetime, but immediately after her decease it shall be and belong to all her legal heirs, share and share alike.” There was no devise over in default of heirs. This left it a devise in fee to Elizabeth. It was a devise to 'her and the whole body of her heirs without limitation or restriction, absolutely and generally, and is within the definition of an estate in fee: Fearne on Rem. 141 (old ed.); 1 Co. R. 954; 1 Atk. 413; Curtis et al. v. Longstreth, 8 Wright 297. The court below were right in holding that Elizabeth Kolb took an estate in fee simple, and in entering judgment for the plaintiffs.
Judgment affirmed.