Page:Federal Reporter, 1st Series, Volume 8.djvu/323

THORNtON V. BBITtON. 309 �natural daughter of his son Nelson, subject to limitation, as expressed in the will. Defendants claimed title under conveyance from the surviving husband of Eliza Ann. The cause was tried before Acheson, D. J., and the court submitted to the jury the question ■whother Eliza Ann dipd under or over the age of 21 years, and on this issue the jury found for the plaintiff, to-wit, that she died under the age of 21 years. The defendants claimed that by the residuary clause of Jo- seph Thomtorn's will the estate of Eliza Ann, in the land devised to her, was enlarged to a fee, and that upon her death the same descended to her husband, under whom defendants held. The provisions of the will are set out in the opinion of the court. �Geortje Shvras,Jr., and D. Kaine, for the motion. �C. E, Boyle, G. W. Minor, and B. B. Petty, contra. �Acheson, D. J. The only ground urged in support of the motion for a new trial is the supposed erroneous instruction of the court in respect to the estate which Eliza Ann Thornton took in the tract of land in controversy under the will of Joseph Thornton, deceased. The testator devised this land to Eliza Ann, the natural daughter of his son Nelson, with this proviso : �^'Provided, that should the said Eliza Aim die in her minority, and without lawful issue then living, the land hereby devised shall revert and become part of the residue of my estate hereinafter disposed of." �This devise has been twice considered by the supreme court of Pennsylvania. In Thornton's Executors v. Krepps, 37 Pa. St. 393, that court held that the estate devised to Eliza Ann — �"Is a^fee-simple, subject to an executory devise; that is, a oonditional limita- tion by will, which defeats it and substitutes another estate in its stead, if the devisee should die both under age and' without issue then living." �More recently, in the unreported case of Britton v. Thornton, the same court held that — �"As to this particular tract of land, the estate of Eliza Ann clearly became extinct, by the terms of the will itself, at the time of her death without issue." �That this is the true construction of the devise, looking alone to the terms of the above-quoted proviso, is too plain for argument. But it is strenuously insisted that this proviso is modified by, and n^ust yield to, the subsequent provisions of the will contained in the resid- uary clause, in view of the admitted fact that the testator's son Will- iam died before Eliza Ann, to-wit, in the year 1852. The residuary clause begins thus : �" Item ; Ail the rest and residue of my estate, not hereinbefore disposed of, I give, devise, and bequeath to my executors." ��� �