Schrecongost v. West , 210 Pa. 7 ( 1904 )

Pee Ctteiam,

The learned judge below directed a verdict for defendant, stating the grounds as follows: “We do not think that the contention of the defendant, that the words of the conveyance fall within the rule in Shelley’s case, can be sustained. There is no separate freehold estate for life or years in the first taker: Simpson v. Reed, 205 Pa. 53.

“ There is nothing in the deed to indicate that the remainder-men should take as heirs of the first taker: Guthrie’s Appeal, 37 Pa. 9. Had this deed been to Elizabeth West for the term of her natural life or for years, and at her death to her heirs begotten upon her by Samuel West, the case would have clearly fallen within the rule in Shelley’s case, but as shown by the above authorities it does not so fall.

“ As we view this deed, it conveyed an estate in special tail. It is stated in Blackstone, book 2, page 114, that ‘ where lands and tenements are given to a man and the heirs of his body on Mary his now wife to be begotten, here no issue can inherit but such special issue as is engendered between them two, and therefore it is called special tail.’

“ Then comes our Act of Assembly of April 27, 1855, P. L. 368, which provides: ‘ Wherever hereafter any gift, conveyance or demise of an estate in fee tail would be created according to the existing laws of this state, it shall be taken and considered to be an estate in fee simple and as such shall be inheritable and freely alienable.’ This act makes the estate a fee simple in Elizabeth West, the first taker, and in our opinion her deed of October 14, 1899, to Daniel West, gave the better title and the verdict of the jury should be for the defendant.”

The judgment is affirmed on this charge.