3 Pennyp. 356 | Pennsylvania Court of Common Pleas, Philadelphia County | 1883
March 5, 1883.
— -The opinion of the Court was delivered by
This contention arises upon a bill in equity, in the nature of a bill of interpleader, filed by William T. Barber, surviving partner of Thornton Conrow, deceased, against Anna Alida and Alfred T. Conrow, surviving children, and Burtis Barber, executor of the last will and testament of said Thornton Conrow, deceased.
The bill recites that Thornton Conrow died on the 15th day of March, 1882, after having made a will, dated July 1st, 1881, which, on the 21st day of March, 1882, was duly admitted to probate, and letters testamentary thereon granted to Burtis Barber by the register of wills of Philadelphia, a copy of which will was annexed to and made part of the bill; that the said decedent left no widow surviving him, but left three children, viz: William H., Anna Alida, and Alfred Thornton, the last named being a minor of fifteen years; that William H. died April 15th, 1882, intestate, unmarried, and without issue ; that the testator at his death was the owner of the premises No. 5 North Water street, in the city of Philadelphia, and the firm of Conrow, Barber & Co., of which the plaintiff was the sole surviving partner, were tenants occupying the said premises at a yearly rental of $1,000, paya
The prayer of the bill was that the said, defendants be ordered to interplead for their respective claims. Joseph I). Conrow was appointed guardian ad litem of Alfred Thornton and made party to the record.
The separate answer of Burtis Barber, Anna Alida and Joseph D. Conrow, guardian aforesaid, admitted the facts stated in the bill; the respondents maintained their respective claims, and submitted themselves to the order and decree of the Court; thus the issue was framed.
The following is a copy of the last will and testament of Thornton Conrow, deceased; and the only questions, submitted arise upon its proper construction. (His Honor here read the will.)
There can be no doubt but that the several devises made in the 9th, 10th, and 11th items of the last will and testament of Thornton Conrow, deceased,, created estates in fee, in the devisees therein named respectively. The word “heirs” is presumptively a word of limitation, and not of purchase, and we are of opinion that there is no sufficient evidence, found in the will, of the testator’s intent to deviate from the general rule ; indeed, the evidence is rather corroborative of the legal presumption, and tends to establish that it was the testator’s actual purpose to devise the fee; he probably intended what he expressly directed, that at the decease of all or either of his children, the lands devised to them should descend to their respective heirs and legal representatives. '
Certainly, the paramount and general intent of the testator, as shown by the entire will, is, that the heirs are to take qua heirs ; therefore, they take by desceñe, and the inheritance must, under the rule, vest in the ancestor. And although, in a subsequent clause, he provides that the lands referred to are given to his said children during their natural lives, and not to be sold or disposed of by them, this particular intent must necessarily be subordinated to the general and controlling principle of his will: Physick’s Appeal, 14 Wright, 136 ; Doebler’s Appeal, 14 Smith, 17. A general restraint upon the right of alienation is void, and that clause of the will should be disregarded: Criswell’s Appeal, 5 Wright, 288 ; Naglee’s Appeal, 33 Penn. St., 89, Jauretche v. Proctor, 48 Penn.
In Item 12 he reserves to William Henry the right to sell the Love farm, described in Item 9. In Items 15 and 16 he directs that the Longwood farm and the W est Virginia lands shall not be sold or conveyed until Alfred Thornton shall arrive at the age of twenty-five years, and the authority to the executors subsequently given is thus limited.
The devise to his executors, as trustees in the 18th item, is of “ all my estate, real, personal, or mixed, whatsoever and wheresoever, in trust, for the purpose herein specified, and subject to the limitations and reservations in items be
The testator, claiming the light to dispose of his property according to his own judgment and discretion, was determined that the disposition which he had made would be accepted by those beneficially interested without objection, and hence, in Item 17, he imposed in terrorem a
We are, therefore, of opinion that the premises No. 5 North Water street, in the city of Philadelphia, devised to William Henry Conrow, were devised to him in fee, but, that by the creation of the temporary trust in the executors, the time of its enjoyment in possession was postponed to take effect when Alfred Thornton Conrow should arrive at the age of twenty-five years, that this was an active subsisting trust, and was not contrary to the act of April 18, 1853, providing against trusts for accumulation.
Therefore, the decree is affirmed, and the appeal dismissed at the costs of the appellants.