267 Pa. 173 | Pa. | 1920
Opinion bt
The case-stated recites the following facts agreed upon by the parties, and submitted for determination by the ■court on the law governing. By article of agreement dated August 14, 1919, Jacob A. Phillippi, since deceased, and Avhose legal representative is the plaintiff in the case, covenanted to sell and convey to Horace P. Fetter certain real estate therein described, situate in the City of Reading, at and for the price of $3,900. Pursuant to this contract, the said Jacob A. Phillippi subsequently tendered to Fetter a deed for the premises, sufficient and correct in form, in which his wife joined, and demanded the stipulated purchase money. Fetter declined acceptance claiming that the deed did not convey a fee simple title, Phillippi having no larger interest in the premises than an estate for life. This states the only question to be resolved.
Whatever interest the said Jacob A. Phillippi had in the premises he had acquired under the will of his mother, Henrietta S. Johnston, who died seized of the premises in fee simple, a widow and testate, September 18, 1895, leaving to survive her no other descendants than said Jacob A. Phillippi and a grandson, Elmer, son of Philip A. Phillippi, who died in 1885. The said Jacob A. Phillippi survived his mother and died September 21, 1919, leaving children to survive him. So much of the will of the said Henrietta S. Johnston, made July
It is the intention of the testatrix with respect to the disposition of her real estate, if that can be satisfactorily derived from the language used, that must govern. This is the test that is first to be applied, and until that has
The learned judge of the court below, with too great dependence, as we think, upon technical rules of construction, derives from the first clause of the will, — which directs the rents and profits from all the real estate shall go to her son Jacob A., who shall have the right to lease properties and collect the rents from the same, — a gift to Jacob A. of the land in fee simple, a conclusion clearly warranted under all our authorities, provided, however, that a contrary intent or an intent to give a less estate cannot, without doing violence to the language of the will, be derived. The rule here applied, namely, that a gift of income or profits of land will carry an absolute estate in the principal, was never intended as an aid to develop the intention of the testator, but only to supply a legal intendment when from the will itself no inconsistent or contrary intention can be derived. “That a bequest of income or profits will carry an absolute estate in the principal or corpus of the estate in some cases, is well settled,” says Agnew, C. J., in Bentley v. Kauffman, 86 Pa. 99, “but,” he adds, “the ground of such conclusion in such instances is that no contrary intent of the testa
The revocation by codicil of the share or interest given to the grandson Elmer in the will is without significance here. Instead of allowing the devise over to Jacob A. its true and legal effect, the learned court treated it as though it amounted to no more than a vain attempt on the part of the testatrix to cut down the fee given to Jacob A. under the first clause, under intendment of law. This was error. No fee was there given and none could have been derived therefrom except by intendment of law, and then only as the clause, which it is argued conferred a fee, “stood alone,” that is, was not followed by any words which necessarily implied a devise over on the death of the first taker.
The final conclusion of the court below was that Jacob A., under the will and codicil of Henrietta S. Johnston, acquired a fee simple to all her real estate, and directed judgment on the case-stated for William B. Bechtel, executor of Jacob A. Phillippi, deceased, and against Horace P. Fetter, for the sum of $3,900, which was ac
Judgment is reversed, and judgment is now entered for the defendant in the case-stated, with costs.