Evans v. Smith

166 Pa. 625 | Pa. | 1895

Opinion by

Mb. Justice Gbeen,

We think it quite clear that every clause of this will which is supposed to limit or restrain the effect of the devise in fee simple to the wife of the testator, has been considered and adjudged in the numerous decisions we have heretofore made. In Jauretche v. Proctor, 48 Pa. 466, which is the leading case, the words of the third and fourth articles of the will, were much more restrictive than anjr of the words in the will we are considering. The words of the third article in that case were an absolute prohibition against any disposition of the estate by the devisee during her life. We held that it was only a restraint upon the power of alienation which was void as against the fee. The fourth article of that will was almost precisely the same as the residuary item in this. We held it to be a gift, not of the residue of the testator’s estate, but of the estate of the devisee unconsumed by her, and hence it could not be considered as being intended to reduce her fee simple estate in the whole. The same is true of the third item of the present will. It is merely a direction to sell whatever of the estate she may not have sold or disposed of during her life. It is a recognition of her right to sell and dispose of the whole estate, and not a restraint upon her estate under the will. These are all the points of contest in this case, but these and a number of others, which have no existence here, have all been adjudged in favor of the estate of the devisee in the cases which have followed Jauretche v. Proctor. It will only be necessary to indicate some of them by reference, to wit: Presbyterian Church v. Disbrow, 52 Pa. 219; Bowlby v. Thunder, 105 Pa. 173; Hopkins v. Glunt, 111 Pa. 287; McIntyre v. McIntyre, 123 Pa. 329; Good v. Fichthorn, 144 Pa. 287; Boyle v. Boyle, 152 Pa. 110, and Levy’s Estate, 153 Pa. 174.

Judgment affirmed.