Oyster v. Orris , 191 Pa. 606 ( 1899 )

Optnion by

Fell, J.,

The question presented by the ease stated is whether the plaintiff took under his father’s will a fee simple, or a life estate merely, in a tract of eighty acres. This will has been a prolific source of litigation, and is now before this Court for the third time. The third clause of the will was construed in Oyster v. Oyster, 100 Pa. 538, and the fourth in Oyster v. Knull, 137 Pa. 448. In each of these cases it was held that the word “ children ” as used by the testator was a word of purchase and not of limitation, and that the devisees under these clauses of the will took life estates only.

The devise in the sixth clause, under which the plaintiff claims, differs very materially from the devises in the third and fourth clauses. The intention of the testator to give to Albert Lincoln Oyster an estate in fee in the Oyster’s mill tract is very clear, unless the restriction “ finally, this property to remain Albert Lincoln for his own use and that of his children ” applies to it. When the whole will is considered we think it apparent that this restriction applies only to the Pine street property mentioned in the first clause of the will, which the testator intended as a home for his widow and children. The disposition made of the Pine street property by tbe first clause is for the life of Margaret Oyster, or as long as she shall remain his widow. There is no devise of the remainder. By the sixth clause the Oyster’s mill property, a store in Harrisburg, and lands in Illinois and Missouri are devised to Albert Lincoln Oyster absolutely. The testator then devised the Pine street property, after the death of his widow, and after it should no longer be used as a home for her children, to Albert Lincoln and his children. The devises to the other sons are for their support, and it is these properties, the farms devised to Simon and Napoleon and the Pine street property, that the executors are directed not to sell.

We see no reason to doubt the correctness of the construction given by the learned judge, and the judgment is therefore affirmed.