
    HOOVER VS. KRICK.
    It is settled that a devise to one in fee and in case of failure of issue then over, creates a fee tail in the first taken. But where an estate is devised to one and after his death to his wife for life and in case of failure of issue in the first taker then over, the devise does not create a fee tail.
    Error to Court of Common Pleas of Berks County.
    This was a case stated in ejectment by Samuel H. Krick, et al., vs. Jacob Hoover. The facts of the case appear in the opinion of the Court below delivered by
    Hagenman, P. J.:
    “The question for decision in the case stated arises under the will of George Krick, deceased. He was seized in fee simple of the property in dispute, and devised the same as follows :
    
      “ ‘ I give and devise unto my two sons, John and George, and to their heirs and assigns, all my plantation and tract of land in Cumru township, Berks county, containing one hundred and seventy acres, be the same more or less, under and subject to the payment of the respective legacies herein bequeathed. To have and to hold the said real estate to the said John and George Erick, their heirs and assigns ; provided, however, always nevertheless, that in case my son John should die without lawful issue, then and in such case the said share of said real estate herein given shall revert to my son George, from and after the decease of the wife of my son John, if she shall outlive her husband— hereby allowing and declaring it to be my meaning in case the said wife of my son John shall outlive him, that in such ease she shall receive and enjoy the rents, issues and profits of the said John’s estate during her natural life.’ John Erick having died without issue, and his wife also being dead, the plaintiffs, .who are children of George Erick, claim the estate under the provisions of the will. The defendant denies their right, and also claims the estate, on the ground that John Erick took an estate tail under the will which was barred on the 4th of November, 1854, by proper conveyances. John Erick died in 1856, leaving his will, whereby he devised all his estate to his wife Mary, who died in April, 1874, devising the property in dispute to the defendant. The question arises, what estate did John Erick take under the will of his father ? To determine this we must ascertain what was the intention of the testator. When this is once ascertained, and it is capable of being carried into effect by the rules of law, the will must be so construed as to'accomplish this purpose. The devise is to John and George, their heirs and assigns. These words clearly carry a fee, and if not followed by others the case would be free from difficulty. But every part of the will must be taken into consideration. Although a fee may be given in a former part of a will it may be restrained by subsequent words so as to convert it into an inferior interest. A less estate is more frequently given in this mode than in any other. What effect has the proviso added to the devise. George’s rights are in no way diminished, but it is evident that a limitation of some kind was intended in regard to John’s. The plaintiffs are children of George, and the probability is, although not mentioned in the ease stated, that as John died without issue, he had no children at the time the will whs made. It is apparent from the will that John and George were favored by their father, and John having no children the testator did not wish his estate to go into the hands of strangers. There was no want of affection for John and his wife. It is specifically provided that if John died first wife should have the use of his entire estate for her life. What are we to understand was the intention of the testator. Clearly that if John had no children at his death, and that of his wife, his share should go to his brother George. ITnless the rules of law forbid such a construction, the plaintiff would be entitled to the property in dispute. In Eichelberger vs. Barnitz, 9 W. 417, Judge Sergeant says, that the principle has now become a settled rule of property in relation to lands, that if a devise be made to one in fee, and if he died ‘without issue, or without having issue? or on failure of issue, or for want of issue, or without leaving issue, then over to another in fee, the estate of the first taker is a fee tail.’ The exceptions to the rule are equally settled. When the time at which the devise over is to take effect is expressly or impliedly limited to a particular period, within a life or lives in being, and twenty-one years after, as where the contingency is, if the first taker dies without issue before arriving at twenty-one, or if he dies unmarried and without issue, or if he dies without leaving issue behind him, or living at the time of his decease, or if the devise over be of a life estate, which implies necessarily that such devisee may outlive the first estate ; in all these cases the testator has been considered as meaning a failure of issue within a fixed period, and not an indefinite failure of issue. The present case falls within the rule of the last exception. Judgment is entered for the plaintiffs for the premises in dispute.”
    Defendant took this writ assigning for error the entry of judgment for plaintiffs.
    
      A. G. Green, Esq., for plaintiff in error
    argued that the words “die without issue” means dying without issue living at the time of his death or at any time afterwards, unless there is something to limit it to the time of his death. Hawkins on Wills, 205; Eichelberger vs. Barnitz, 9 Watts 447; Gast vs. Baer, 12 S. 35. The rule that the words “die without issue” create a fee tail is strictly adhered to as to real estate. Crily vs. Chamberlain, 6 C. 161; Wynn vs. Story, 2 Wr. 166; Covert vs. Robinson, 10 Wright 274. But it is otherwise as to personalty. . Jarman on Wills, vol. 2 p. 362; Hagerty vs. Albright, 2 S. 275; Keene’s Appeal, 14 Sm. 273; Rapp vs. Rapp, 6 Barr 45; Bedford’s Appeal, 4 Wr. 22; Diehl vs. King, 6 S. & R. 32. The Court should have held that the will created a fee tail not an executory devise. Criley vs. Chamberlain, 6 Casey 161, Doyle vs. Mullady, 9 Casey 161; Braden vs. Cannon, 1 Gr. 60; Smith’s Appeal, 11 H. 9. In Taylor vs. Taylor, 13 S. 481, the case did not require the decision of this point. See also Rye’s Settlement, 10 Hare 111.
    
      G. F. Baer and F. L. Smith, Esqs., contra:
    
    The word “then” in the devise refers to the death of the first taker. Diehl vs. King, 6 S. &. R. 32; Langley vs. Heald, 7 W. & S. 96; Bedford’s Appeal, 4 Wr. 22; Harris vs. Smith, 16 Georgia 550; Griswald vs. Grier, 18 Georgia 550. It must take effect in the life of the devisee. Johnson vs. Currin, 10 Barr 503; Rapp vs. Rapp, 6 Barr 49; Toman vs. Dunlap, 6 H. 72. The devise over is a life estate in case John died without issue. Eichelberger vs Barnitz, 9 W. 451; Findlay vs. Riddle, 3 Binn 139; Taylor vs. Taylor, 13 Sm. 487.
   The Supreme Court affirmed the decision of the Court below on March 24, 1879, in the following opinion :

Per Curiam.

We affirm the judgment upon the opinion of the learned President of the Court below.

Judgment affirmed.  