Brown's Estate, 38 Pa. 289

Brown's Estate

38 Pa. 289 | Pa. | 1861

The opinion of the court was delivered, by

Woodward, J.

— Without going'into any of the erudite learning that was. lavished on these cases in the argument, we are of opinion that they may be well decided upon the face of the wills of the two sisters, Mrs. Brown and Mrs. Finney. Mrs. Brown, after giving, by her will, various legacies, divided the residue of her estate into two half parts — one of which she gave to her sister, Mrs. Finney, “ absolutély, so that she may dispose of the same by will or otherwise, as fully and amply as if the same now *293belonged to her” — and the other half to Mrs. Finney to receive the income thereof during her natural life, and after her death, over to trustees, to pay the income to her nephews Thomas Neill and George B. Neill, “ in equal shares, and in case of the death of either of said nephews, to pay his share of the said income to the children of the said deceased nephew, and if he should die without children, then to the surviving nephew during his natural life.”

As to the first half, we cannot doubt that Mrs. Finney took an absolute fee simple interest. Nor is it affected by the concluding clause of the will, in which the testatrix provided that in case Mrs. Finney should not survive her, or, surviving her, should not by will or otherwise dispose of this part of the estate, it should go to the nephews under the same trust as that above expressed, because Mrs. Finney did survive Mrs. Brown, and did dispose of the estate by her will for life, and left the fee to descend to her heirs under the intestate laws. That was “ disposing” of it within the meaning of Mrs. Brown’s will. The condition was not that it should be disposed of in any particular manner, but “ by will or otherwise." Such a condition is no restraint upon a tenant in fee, for it is only declaratory of one of the necessary incidents of the estate. A fee simple may be disposed of by deed, or will, or the intestate laws, according to the election of the owner, and all the powers which any tenant in fee possesses, Mrs. Brown meant should vest in Mrs. Finney in respect to this half of her estate.

Then as to the other half, we think it equally clear that Mrs. Finney had a life estate, and after her death, George B. Neill having also died childless, Thomas took an estate for life, and that the fee, undisposed of by flhe will, descended to the heirs at law of Mrs. Brown.

Such is our reading of Mrs. Brown’s will. We come now to that of Mrs. Finney. She gives all her estate, real and personal, “ and also all that part of my sister Susan B. Brown’s estate, given me by .her will,” to trustees “ in trust, to pay over the rents, issues,' profits, and income thereof, as the same may be received, to my nephew Thomas Neill, during his life.” This was a devise of a life estate, and a dying intestate as to the fee. We have already shown that she had an absolute property in half of Mrs. Brown’s estate. In her own estate her rights were no more absolute. Carving out a life estate for Thomas, she left the fee in her whole estate to descend to her heirs at law.

We see no symptom of an executory devise. The only ground for an argument in favour of one, is contained in the following clause: “ And it is further my will and direction, that the principal of the property hereby devised shall in no event be liable for any debts or claims which now exist, or may hereafter *294exist against my said, nephew, or against his children or any of them.”

This was copied from Mrs. Brown’s will, and was intended to protect the “ principal” of the estate from Thomas’s creditors; hut as the estate was expressly limited to his life, the creditors of his children could not touch it, of course. That clause was superfluous and absurd. An estate to A. for life shall not be subject to the debts of his children — does that make an executory devise ? Surely not. An executory devise is a limitation by will of a future estate or interest in lands or chattels; but here the will limits no estate except a life estate in the nephew Thomas. None is to be implied from the thoughtless declaration, copied from a previous will, that “ the principal of the property hereby devised” shall not be subject to the debts of the devisee’s children. The “property hereby devised” could not be liable, in the nature of things, but even if it could be, the words are limited to that estate — a life estate in- Thomas — and import no intention to create any other.

This is, in substance and effect, the manner in which the auditor and the court below construed the wills of these ladies, and therefore the decree in each case is affirmed, and the appeals dismissed at costs of appellants.