10 Watts 348 | Pa. | 1840
The opinion of the court was delivered by
By the civil law, a condition in restraint of marriage, is void when it is annexed to a legacy without a limitation over; a devise of land is governed by the common law. Now a devise of profits, is a devise of the land from which they are to accrue; and what is the nature of the estate given by the terms of this will? “ I allow my wife,” says the testator, “one-third of the profits arising off all my real estate only so long as she remains my widow.” Now this is not a devise upon condition, but a plain and distinct conditional limitation which was spent by the contingency of her marriage, even without entry by the heir or a devisee over. That is not contested. But it is urged that an intent, apparent and subsequent clause, to give the profits as personal estate, must control what would else be a proper interpretation of a devise of profits without more. “ I do declare and utter,” says the testator in conclusion, “ that each and all of the foregoing legacies that is to come out of my real estate, shall be liens thereon till paid;” and hence an inference that profits, in his contemplation of them, were supposed to mean no more than the income, else it would have been absurd in him to declare a devise of the land to be a lien on it: consequently that he did not intend that the land should pass with the profits. But he had just given various pecuniary legacies to his children, payable out of land in express terms; and these are sufficient to satisfy the direction, that legacies payable out of his land should be a lien on it; and to show that it was not intended for the devise to his wife. But there is a distinction between a
Judgment affirmed.
