Appeal, No. 69 | Pa. | May 26, 1921
Opinion by
The collateral facts in this case-stated will be found detailed in the notes of the Reporter; for present purposes it is sufficient to call attention to the will of Fred W. Edwards, deceased, which appoints his wife sole executrix, directs payment of his debts, and contains but one other provision, as follows: “I hereby bequeath to my beloved wife, Alice Edwards, all my estate, real, per
Appellant elaborately argues several points, but the view we take of the controversy reduces our labors to a consideration of the above-quoted testamentary disposition; for, if thereunder Alice Edwards had power to convey real estate, the deed tendered appellee grants a good title in fee simple, beyond attack by any one with color of title not brought into the present litigation, and, therefore, within our power to declare marketable.
Under section 9 of the Act of April 8, 1833, P. L. (1832-3) 249, which lays down the statutory rule that words of inheritance in a devise are not essential to pass a fee, it is plain that the first part of the above devise, standing alone, gives Alice L. Edwards an absolute estate in all of her husband’s property; but, unless we gather from the whole provision that such was testator’s dominant purpose, she does not take a fee simple title to real estate: Pattin v. Scott, 270 Pa. 49" court="Pa." date_filed="1921-03-14" href="https://app.midpage.ai/document/pattin-v-scott-6255140?utm_source=webapp" opinion_id="6255140">270 Pa. 49, and Schuldt v. Reading Trust Co., 270 Pa. 360" court="Pa." date_filed="1921-05-02" href="https://app.midpage.ai/document/schuldt-v-reading-trust-co-6255210?utm_source=webapp" opinion_id="6255210">270 Pa. 360. Hence we must look further.
Immediately after the devise to his wife, testator says that, upon her death, the “residue” of his property is to be divided between his two children, or the survivor. This, by itself, would show that he did not intend to give the widow an absolute fee simple estate, for, since others are to take the “residue,” the original devisee could not make a valid devise of what might be left after using so much of the property as she needed (Allen v. Hirlinger, 219 Pa. 56" court="Pa." date_filed="1907-06-25" href="https://app.midpage.ai/document/allen-v-hirlinger-6249078?utm_source=webapp" opinion_id="6249078">219 Pa. 56, 60); but, considering the first part of the provision before us, which, standing alone, gives the wife her husband’s whole estate, the latter part, disposing of the residue left at her death, certainly shows an intention to grant her power to consume all or any part of the property devised,- — -“real, personal and mixed” (Hege v. Ickes, 267 Pa. 57" court="Pa." date_filed="1920-04-12" href="https://app.midpage.ai/document/hege-v-ickes-6254742?utm_source=webapp" opinion_id="6254742">267 Pa. 57; Houser v. Houser, 268 Pa. 401" court="Pa." date_filed="1920-12-31" href="https://app.midpage.ai/document/houser-v-houser-6254941?utm_source=webapp" opinion_id="6254941">268 Pa. 401,
The term “residue” may, of course, be used in the technical sense of “remainder,” signifying an estate vesting in those who take after a life tenant, but we see nothing in this will to indicate a purpose so to employ it; on the contrary, as already ruled, in the present instance, we take “residue,” with its context, to mean that testator, realizing his wife’s needs might not require her to consume all his estate, intended whatever might be left unconsumed at her death should go as directed in his will, and not as she might provide in hers.
Our conclusion that the widow has the right to convey a good and marketable title in fee simple renders consideration of the questions arising out of the other facts set forth in the case-stated unnecessary.
The decisions mentioned in this opinion are not cited as binding authorities, for, as a rule, none are such when construing wills (Redding v. Rice, 171 Pa. 301" court="Pa." date_filed="1895-10-07" href="https://app.midpage.ai/document/redding-v-rice-6243257?utm_source=webapp" opinion_id="6243257">171 Pa. 301, 306); but the cases we have noted are either illustrative of the point in connection wherewith they respectively appear or they contain relevant discussion, which is about the only aid prior decisions can afford in this class of litigation. We take occasion to correct an error of the Reporter in Hege v. Ickes, supra. The first paragraph of the syllabus states a holding that the wife had “an absolute fee simple estate”; whereas what we ruled was that she, as life tenant, had a right to consume the principal, and therefore power to convey an estate of the character mentioned.
The assignments of error are overruled and the judgment is affirmed.