106 Pa. 301 | Pa. | 1884
delivered the opinion of the court,
Silas H. Wentz, by his will, directed his executors to collect and pay over all the income arising from his estate, real and personal, to his wife during her life or «widowhood. Under this direction we fail to see in what particular the distribution in the court below was wrong. The rents or royalties from the coal leases were undoubtedly “ income ” arising from the realty. Had the mines been opened in the lifetime of the testator there could be no question but that they might have been worked even to exhaustion for the benefit of the life tenant. But as the testator confers upon his executors a general power to lease, as well as sell, his real estate, we must regard the mines opened under this power in the same light as though opened in his lifetime, for the manifest intention was that in this manner an income should be derived from the laud, and, by the express terms of the will, such income must go to the widow during her life or widowhood. It is true, power is not given in terms to lease the coal, but we take it that such power is found in the general direction to lease the coal property. This land was useful as coal land, and for nothing else; the surface could not be rented, hence the power to lease must refer to the minerals or to nothing. Moreover, Wentz owned but one third of this property in
The fact being thus established that there is in Mrs. Schell a conditional fee, the idea of a remainder or merely alternative limitation to Thomas H. Wentz cannot be entertained, and it only remains to ascertain whether there is yet in him such an interest in the devised estate as would authorize his intervention in the present contention. The materiality of the position here established will be obvious if we but reflect that, admitting but a life estate in Mrs. Schell, her brother being now dead, and the cross remainder to him thus extinguished, in the event of her death without issue, that part of the estate charged with the trust for her life must necessarily go over to Thomas H. Wentz, because there would then be none other in whom it could possibly vest. On the other hand, there being in her a conditional fee, if events so occur that a strict performance of the condition, upon which her uncle’s estate depends, becomes impossible, the fee must become absolute in the first taker, and the limitation over necessarily fails. Now, an examination of the will shows us that Thomas H. Wentz was to be substituted, if at all, to the entire estate, and not part of it. But in order that this should happen the daughter must die without issue during the life of the son, and before he reached the age of twenty-one, thus vesting the entire estate, sub conditioner in the sou, and he, in turn, must also die before reaching that age; or, on the other hand, the estate must vest, in like manner, in the daughter, by the death of her brother before the age of twenty-one. and without issue, otherwise the subsequent limitation must fail.
The above proposition becomes obvious when we reflect that the limitation to Howard must, by the terms of the will, become absolute at the period above stated, and if after that time he should take under the cross limitation, as upon it no condition was imposed, he would of course have vested in him the whole property absolutely, and nothing would be left for his uncle. But as matters have turned out, the conditions contemplated by the testator under which the whole estate might ultimately vest in his brother have become impossible.
Howard lived until he reached the age of twenty-one, lienee the limitation to him became absolute, and as he died since that period, his estate has passed to his sister as his heir at law, and not under the will. It is, indeed, contended that Kate’s share still continues subject to the conditions originally imposed upon it, and may yet go over to her uncle should she
The decree of the court below is affirmed at the cost of the appellants.