Fahnestock's Estate

22 Pa. Super. 63 | Pa. Super. Ct. | 1903

Opinion by

William W. Porter, J.,

The answer to the question involved hangs upon the meaning of a part of the fifth clause of the will of R. E. Fahnestock. The testator by the terms of a certain deed of trust affecting real estate in West Virginia, held rights, which he regarded as interests in land, and treated as such in making his will. He knew, as the auditor finds, that the property was timber land and that measures were being taken by the trustees to make it yield dividends. In this knowledge he wrote his will by which he directs that all his real estate shall be sold by the executors, in five years from his death, save his “ interests in West Virginia, which they may have a period of ten years to dispose of in, or sell, whenever they deem it advantageous to my estate.” He then provides, “all the rents and incomes of my real estate directed to be sold (until sold and conveyed), I give and bequeath to my wife,” etc. This means that the wife is to get the rents and incomes from all his real estate, until it shall be sold. He includes in the category of real estate, his interests in West Virginia. Until these are sold, the wife is to have the rents and incomes of them. In view of his knowledge of the condition of the land in West Virginia and of the character of its impending development, he must have intended that such income as should accrue, should go to his wife until his interests should be closed out by sale. As the lands were incapable of producing income save by the sale of timber and the leasing of coal rights, the wife was entitled to the income so derived. Any other construction would result in striking from the testator’s will the expression of an intent that the wife should receive the usufruct and benefit derived from the West Virginia interests pending their sale. The true intent of the testator is carried out by affirming the decree entered by the court below, which follows (so far as they are applicable) the numerous precedents cited in the report of the auditor.

The judgment is affirmed.