84 Pa. 184 | Pa. | 1877
The judgment of the Supreme Court was entered,
The devise to Enos P. Barnard was expressly to him, his heirs and assigns. This clearly gave him full power over the estate in his lifetime. He could therefore sell and convey it at pleasure, there being no legal restriction upon his power. The proviso which it is supposed operates upon his estate in fact imposes no restrictions upon the power of alienation, but is simply an attempt on the part of the testator to provide for a contingency of dying without children, to enable Enos to devise the estate; a power which he would possess by the very nature of his absolute estate in fee. So in case he died without children, and without making a will; the testator gave the estate to his next of kin of the blood of the testator’s father. This was merely an attempt to regulate the descent when cast. There was no devise over to any one, as the object of the testator’s bounty, ■ evincing a design to create an executory devise or a conditional fee. So far as the devise to Enos is involved, the proviso was simply a work of supererogation, the fee given to him being absolute and unrestricted, and no other person being intended to take in the event of his being, childless. His power to alien in his lifetime was therefore not restricted either at law or by the will.
Judgment afiirmed.
