On tbe bearing tbe title offered was properly made to depend upon tbe construction of tbe following clause in tbe will of Mrs. Elizabeth J. Burke:
“I loan to Elisba Burke "White during bis natural life my home tract of land where I now live, . . . also, tbe Darden or Dillard land (description not in dispute), and after bis death to such child or children as be may have or leave lawfully begotten of bis body.to be equally divided share and share alike between them, but if be should not leave any children, then said property shall go to his nearest heirs.”
The case states that Elisha Burke "White, plaintiff in this action, at the time of the death of the testatrix in 1904, was unmarried, but that he has since married and is now the father of three living children, the oldest being fourteen years of age.
Plaintiff contends that under the foregoing clause in the will of Mrs. Elizabeth J. Burke he holds a fee-simple title to the land sought to be conveyed, by virtue of the operation of the rule in Shelley’s case; while the defendant contends that, under the provisions of said clause, the plaintiff took only a life estate in the property so devised.
We think it is manifest that the plaintiff cannot convey a full and absolute title to the land in question, even though he should be held to take a defeasible fee by reason of the ulterior limitation to “his nearest heirs.” Conceding, without deciding, that, for the purpose of hereditary transmission, the plaintiff may be seized of an estate in fee simple, yet this, by the express terms of the instrument under which he holds, is liable to be defeated by his dying and leaving him surviving a child or children. Stewart v. Kenower, 62 Pa., 288; note, 29 L. R. A. (N. S.), 997 et seq. See, also, Whitesides v. Cooper, 115 N. C., 570, and cases there cited. .
The ruling of the court below must be upheld.
Affirmed.