Haskins v. Tate , 25 Pa. 249 ( 1855 )

The opinion of the Court was delivered by

Lowrie, J.

We think this case falls within the rule that, on a limitation to a class, which may include persons not yet born, the time of the distribution defines the members that are to constitute the class. It is very plain that Robert Tate took a life estate by the devise; but whether in the whole or not, we need not determine. The question is, do his children, born after the death of his father, the testator, take any estate ? The devise is, that the land shall be equally divided among Robert’s children, he and they enjoying the benefits of it while he lives. At that time he had two children, but died leaving ten. If we put the life estate first, the intention may appear in a more orderly form; thus, let Robert and his children enjoy it for life, and then let it be divided. The thought of the testator must have been about a division then, and lie must have meant the children who should then be living, else he would have said what children. It is unreasonable to suppose that the testator was intending that his son’s children should claim to divide with their father in his lifetime; and even if they might do so, that is not the división he was thinking of, but the division among the children only. This view receives further confirmation from our customs and laws, which favour equality among children, and from the presumption that testators recognise the justicfe of this rule.

Judgment affirmed.