182 Pa. 267 | Pa. | 1897
Opinión bv
In the case of Brockley’s Appeal, 4 Atl. Rep. 210, not reported in the State Reports, we certainly did hold that an estate precisely like this was an estate for life only. The words of
In the present case the widow still continued in tire possession and use of the real estate devised to her by her husband, up to the time of her death. It was therefore a part of his estate in her hands at the time of her death, unused and unsold, and was clearly subject to the operation of the husband’s will under the decision above cited. The words of his will on this subject are, “ And if any of the same be left after her death I order it to be divided amongst my children share and share alike.” This is the precise contingency contemplated and provided for by the will, and we know of no reason why the clear testamentary intent and purpose of the testator should be disregarded. There is no rule of law which requires it to be set aside. Her attempt to dispose of it by will cannot defeat the plain intent
There will be no profit in entering into an examination of the numerous authorities cited in the argument. None of them really conflicts with the ruling in Brockley’s Appeal and in this; and Follweiler’s Appeal, 102 Pa. 581, is almost precisely the same as these, and so also is Zimmerman v. Anders, 6 W. & S. 218. There are important differences in language and circumstances in the cases in which it is held that the wife took a fee where the devise was similar to that in the present case, but it is not necessary to review them in detail. It is enough to know that the cardinal rule of the interpretation of wills by the intent of the testator, will be strictly followed and enforced by our ruling of the present contention.
Regarding the property as the real estate of the husband, the solution of the practical question involved in this contention is very simple. The property had been sold, and the several sales had been confirmed by the orphans’ court but the deeds had not been delivered, on the day of Emma' Dunlap’s death. Under all the authorities no conversion was worked, and her interest passed as real estate and not personal: Scott’s Est., 137 Pa. 454; Greenough v. Small, 137 Pa. 136 ; Overdeer v. Updegraff, 69 Pa. 118; Wentz’s Appeal, 126 Pa. 541, and many other cases. Said Clabk, J., in Greenough v. Small, “ It is well settled that an orphans’ court sale does not divest the title of the heirs until after confirmation thereof and conveyance delivered under the order of the court. . . . The sale, even after confirmation, does not divest the title of the heirs of the decedent, for it remains in the power of the court until a deed has been executed and delivered. Until then the heirs’ right to maintain ejectment, even against the purchaser, has not gone. . . . Until then no conversion takes place, and if the heir of the decedent dies, even subsequently to the confirmation of the report of sale but before the deed, his interest descends as land and not as money.”
Further discussion is unnecessary. The assignments of error are dismissed.
Decree affirmed and appeal dismissed at the cost of the appellant.'