Fulton v. Fulton , 2 Grant 28 ( 1853 )

The opinion of the court was delivered December 16,1853, by

Lowrie, J.

— Mucli of the argument of the plaintiff in error is founded on facts apparently important, but not appearing in the case stated; much of it on difficulties seeming, by possibility, to arise out of the construction given to this will in the Common Pleas; difficulties against which we cannot presume the testator intended to provide, unless we had some evidence that he thought of them. Perhaps he never thought of the mother outliving any of the children. Much of it is a difficulty purely imaginary; for it is not true that a legatee or devisee and his estate are discharged by death from the duties imposed upon him by the testator in consideration of the devise or bequest.

We think the court put the right construction upon this will, as well as upon the effect of the former action. It has the weight of authority in its favor. It avoids the fault of converting an express fee simple estate into a life estate or an estate tail by implication. . It avoids the fault of seeming to give a fee tail or a life estate in .personal property — both the realty and personalty being granted by the same words. It follows the. rule that that construction ought to be favored, that makes an estate vest absolutely at the earliest possible period. And it is much more equal in its apparent results than the one contended for on the other side.

Judgment affirmed.